Takings Formalism and Regulatory Formulas: Exactions and the Consequences of Clarity
A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. Exactions are the concessions local governments require of property owners as conditions for the issuance of the entitlements that enable the intensified use of real property. In two cases decided over the past two decades, Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the Court has established under the Takings Clause a logic and metrics for constitutionally permissible exactions that requires concessions to have an “essential nexus” and be “roughly proportional” to the harms a proposed development is expected to cause. This Article argues that the Court’s suspicions are well-founded, but that blame for judicial and administrative non-compliance lies with the Court itself.
The Supreme Court’s efforts in Nollan and Dolan to establish doctrinal clarity in the individualized, local land use regulatory process have not, and cannot, achieve their goals of securely protecting property rights and discipline regulatory practices. What the Article describes as the Court’s takings formalism fails to constrain regulatory practices in their intended way, and results in constraints on the variable, locally situated, and intensely political context of local governance. These constraints, which include incentives for local governments to develop preconstituted regulatory formulas and disincentives against individualized, negotiated concessions, often promote neither the Court’s preferred normative vision of strong property rights protection nor the Court’s stated secondary concern for better, more efficient land use regulation. Most perniciously, the Court’s limited doctrinal, normative, and utilitarian visions of takings law may block and damage the essential political and social processes necessary to legitimate and functional local governance.
Constitutional Law | Environmental Law | Land Use Law | Property Law and Real Estate
Date of this Version
Mark Fenster, "Takings Formalism and Regulatory Formulas: Exactions and the Consequences of Clarity" (August 15, 2003). bepress Legal Series. bepress Legal Series.Working Paper 25.