The Remnants of Exaction Takings

This article explores the ability of local governments to impose discretionary permit conditions, or exactions, to offset the burdens that new development places upon existing infrastructure and the environment. Over fifteen years ago, in Nollan v. California Coastal Commission and Dolan v. City of Tigard, a deeply divided U.S. Supreme Court ruled that the Takings Clause of the Fifth Amendment significantly restricts this governmental authority, for the clause requires the judiciary to apply a more stringent level of scrutiny in reviewing permit conditions than is accorded outright permit denials. These regulatory takings decisions provide land use regulators with incentives to circumvent the more stringent standard for permit conditions by under-regulating, overregulating, or engaging in unwelcome conduct associated with a repeat-player theory. However, dicta in the Court\u27s recent unanimous opinion in Lingle v. Chevron U.S.A., Inc. could be interpreted as limiting the application of the stringent scrutiny established in Nollan and Dolan to a small subset of exactions. This article seeks to provide some normative basis for understanding why the Court issued a unanimous, albeit veiled, declaration in an exactions takings arena that previously had been complicated by contentious policy disputes