Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions

The regulatory takings doctrine, the Supreme Court declared in Lingle v. Chevron, concerns the effects of a regulation on the incidents of property ownership. It serves as a constitutional protection against regulations that impose the functional equivalent to a classic taking of private property (an appropriation by the state or an ouster), and it requires compensation for owners who are subject to such regulations. Just as significant as declaring what the regulatory takings doctrine is, theCourt in Lingle also declared what it is not: it is not a judicial check onthe validity or reasonableness of a regulation that effects a taking. While the Takings Clause serves to correct an unfair outcome due to government regulation, it does not authorize substantive judicial review of government\u27s discretionary decision to regulate. The exactions decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard sit uneasily alongside the Court\u27s recent effort in Lingle to make sense of its long, confusing line of takings decisions. Nollan and Dolan look to the particular effect that a condition will have on a property owner, and in that regard are consistent with the Court\u27s takings jurisprudence. On the other hand, Nollan and Dolan allow courts to consider the validity of the relationship between the condition and the government\u27s stated regulatory purpose. They therefore mandate judicial review of a local government\u27s substantive regulatory practice, as well as of the justification that local officials use to explain the regulation. It is no wonder, then, that Justice O\u27Connor attempted to reconcile the Court\u27s emergent takings theory with its exactions decisions in Lingle. This article argues that Lingle affirms and justifies unevenness -- even though its explanation may frustrate both property rights advocates and planning advocates, who view the Court\u27s exactions jurisprudence as either an inadequate or an onerous effort to limit local discretion