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EXACTIONS FOR THE FUTURE
Timothy M. Mulvaney*
INTRODUCTION
The government practice of routinely attaching conditions, or “exactions,” to
discretionary development permits is commonly traced to the rapid
suburbanization that followed World War II. Local property taxes were
insufficient to keep up with the infrastructure needed to accommodate this
growth, so municipal governments turned to landowners for support. This resort
to developer-financed infrastructure was unsurprising, for it was the developers
who were generating the need for these improvements in the first place.1
Originally, state courts exclusively policed exactions in a manner quite deferential
to public authorities, warding off only those egregious, indefensible abuses of this
important land use tool. That model subsisted with relatively few complaints for
several decades, as governments commonly employed exactions quite reasonably
as an offset to the infrastructural burdens emanating from new development.
However, beginning in 1987 amidst fears that such a discretionary power could be
used in an exploitative fashion, a divided U.S. Supreme Court identified more
stringent criteria for imposing exactions in the constitutional takings cases of
Nollan v. California Coastal Commission2 and Dolan v. City of Tigard.3 Unlike
any state court prior, the five-Justice majorities in these two cases demanded that
the permitting entity prove that exactions bear an “essential nexus” to and “rough
proportionality” with the development project’s impacts to avoid having to pay
compensation under the Takings Clause.
In this article, I consider how modern exactions might be different from their midtwentieth century predecessors, and quite possibly even different from those
*Associate Professor of Law, Texas Wesleyan University School of Law. Thank you to Mark
Fenster for helpful comments on the topic of this piece.
1
See, e.g., Mark Fenster, Takings Formalism and Regulatory Formulas: Exactions and the
Consequences of Clarity, 92 CAL. L. REV. 609, 615 (2004) [hereinafter Takings Formalism]
(“[I]ndividualized . . . exactions constitute a flexible, open-ended set of conditions that serve
regulatory and persuasive functions by offering both to internalize at least some of the external
costs of development and to make a proposed land use either sufficiently attractive or minimally
unattractive to decision makers and the voting public.”); Molly S. McUsic, The Ghost of Lochner:
Modern Takings Doctrine and Its Impact on Economic Legislation, 76 B.U. L. REV. 605
662 (1996) (“Many local governments have adopted development exaction programs which
require a developer to expend resources on facilities or services for the public as a condition of
obtaining a development permit.”).
2
483 U.S. 825 (1987).
3
512 U.S. 374 (1994).
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contemplated in Nollan and Dolan two decades ago. The distinguishing feature
of most intrigue here is the increasing propensity for exactions to take aim at
development impacts that are not going to result immediately or in the near term,
but rather those impacts that are anticipated to occur at some point further off into
the future. An extensive look into the hundreds of reported lower court exaction
takings cases reliant upon Nollan or Dolan reveals that where permittees
challenge exactions as takings, some courts are finding these “exactions-for-thefuture” less constitutionally palatable—because of the delay between the
imposition of the exactions and their curative effects—than exactions that respond
to immediate or near term public harms.
Below, Part I surveys the historical rise of exactions to situate their role in the
context of modern land use planning. Part II defines and analyzes four
dimensions of property—theory, space, stringency, and time—that are at issue in
exaction takings jurisprudence. The Part draws on this four-dimensional model to
isolate the temporal issue of focus here: assessing the relevance of the varying
levels of delay between an exaction and the external public impact that exaction is
intended to cure.
Part III offers several instructive examples of modern disputes involving
exactions-for-the-future. This account assesses takings cases involving exactions
for: possible future street widening;4 expansion of pipe widths to accommodate
future construction;5 the purchase of nearby oceanfront land for public use where
the permitted seawall would facilitate erosion and ultimately destroy existing
public access;6 a connector road to anticipated adjacent developments;7 and
various infrastructural improvements assuming a “worst case scenario”—full
build-out of the subdivided lots—where the applicant had no such immediate
plans.8 For comparative purposes utilized in Part IV below, this sampling
includes some decisions where courts held that an exaction-for-the-future does not
amount to a taking, and others where courts reached the contrary conclusion.
Part IV, the article’s core, explores what those decisions finding that exactionsfor-the-future constitute takings might reflect on a jurisprudential, theoretical, and
normative level. The Part is divided in a manner that highlights four themes.
First, judicial predisposition against exactions-for-the-future may expose a
4
McClure v. City of Springfield, 28 P.3d 1222, 1228 (Or. Ct. App. 2001); Goss v. City of Little
Rock, 151 F.3d 861, 863 (8th Cir. 1998).
5
McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008).
6
Ocean Harbor House Homeowners Ass’n. v. Cal. Coastal Comm’n, 77 Cal. Rptr. 3d 432 (Cal.
Ct. App. 2008).
7
Burton v. Clark County, 958 P.2d 343 (Wash. Ct. App. 1998).
8
Schultz v. City of Grants Pass, 884 P.2d 569, 573 (Or. Ct. App. 1994).
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fundamental tension with the general direction of land use law towards
comprehensive planning. This tension is evident via a relative analysis between
the roles of planning in exactions-for-the-future cases and planning’s place in
regulatory takings and “public use” jurisprudence. Second, the vitality of some
jurisdictions’ apparent requirement that exactions bear immediate fruit seems
equivalent to a near per se rule against using exactions to counter an extensive
collection of public harms that pose quantification difficulties. Third, requiring in
the course of a takings analysis that exactions demonstrate an imminent or nearterm response to a public problem perpetuates the longstanding vagaries at the
boundaries of takings and due process review. It allows courts to conduct an
assessment of not only the extent and distribution of an economic burden created
by regulation—the traditional takings questions—but also the wisdom of the
regulatory action itself. Fourth, imputing an immediacy criterion into exaction
takings law signals a theoretical vision of private property as creating a barrier
between individual interests and permissible government action that is even more
significant than that espoused by the majority in the U.S. Supreme Court’s
exaction takings cases.
In Part V, I conclude that each of the themes identified in the previous Part
arguably provides justification for eschewing any distinction between exactionsfor-the-future and more traditional exactions; indeed, they may lend support to the
claim that exactions in general should be treated no differently than other
regulatory acts. However, to the extent that, in select jurisdictions, exactions-forthe-future will be looked at with disdain in the context of landowners’ takings
suits, I present several “second-best” alternatives for local governments that may
warrant consideration moving forward.
I. THE PRELUDE TO EXACTION TAKINGS
Throughout the 19th century and leading up to the Great Depression, one could
argue that subdividing land required only a whim, a pen, and a map.9 The
increased infrastructural burdens that resulted from an overabundance of
subdivided lots dotting the landscape outside city centers were left either to the
governing municipality or the developer. Neither were equipped or motivated to
provide public improvements in many instances.10 The excess of subdivided lots
led to vacancy and tax delinquency, depriving municipalities of the ability to
incentivize commercial development with public infrastructural support.11 This
9
See R. Marlin Smith, From Subdivision Improvement Requirements to Community Benefit
Assessments and Linkage Payments: A Brief History of Land Development Exactions, 50 LAW &
CONTEMP. PROBS. 5, 5 (1987).
10
Id.
11
Id.
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phenomenon, in turn, impeded orderly growth, for it induced potential developers
to skip over these blighted “dead lands” and carve out new subdivisions on the
still farther outskirts of town.12
The Standard Planning Act of 1928 sought to, in part, respond to this problem.
The Act counseled municipalities to condition land use approval on the developer
providing necessities such as “streets, water mains, sewage lines, and other utility
structures...” to cope with the increased infrastructural impact in the immediate
area.13 These were the first routinely institutionalized exactions, and they
typically only took the form of direct infrastructural enhancement; in other words,
the first exactions were based on internal impacts the proposed development
would be able to remedy on-site and in the near term.14 The Great Depression
spurred this early practice of internal exactions, as other sources of infrastructure
funding—ad volorem taxes and special assessments—went unpaid under the
weight of the economic decline.15 The real estate community fought against these
conditional requirements, but almost universally failed to sway the courts in their
favor.16 By the middle of the 20th century, imposing mandatory internal exactions
on subdividers and developers had become common practice, and additional
requirements of an external nature were starting to appear among local
governments in conjunction with the mass suburbanization that followed World
War II.17
At this point in history, the scope of local government police power was
increasing.18 In the 1950s, the U.S. Supreme Court acknowledged that the police
power encompassed more than “public health, public safety, [and] morality,” but
could also be used to make the “community…beautiful as well as healthy.”19
This reflected the growing trend towards imposing external exactions, which
Id. at 5-6 (“new residential developments leapfrogged over … areas of dead land into
unsubdivided lands lying beyond the old, moribund subdivisions”).
13
Jennifer Evans-Cowley, Development Exactions: Process and Planning Issues 3 (Lincoln Inst.
of Land Policy, Working Paper WP06JEC1, 2006).
14
Id.
15
See Martin, supra note 11, at 6 (explaining a deteriorated cycle whereby incentives to pay
special assessments—levied to construct physical improvements on subdivided parcels—arose
only when the assessed lot had been improved, and foreclosure proceedings to reap these
payments largely proved worthless because of the depreciation in land values). See also Vickie
Been, “Exit” As a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions
Doctrine, 91 COLUM. L. REV. 473, 479 (1991) (suggesting that “exactions are an outgrowth of the
centuries-old practice of levying ‘special assessments’…[for] in the 1920s and 1930s, widespread
bankruptcies and delinquencies on special assessments… left many local governments unable to
recoup the costs of public improvements”).
16
Martin, supra note 11, at 7.
17
See Evans-Cowley, supra note 15, at 3.
18
Id.
19
Berman v. Parker, 348 U.S. 26, 33 (1954).
12
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broadened what could be done for the sake of public welfare.20 This scope was
also broadened by the practical effect of federal and state funding cuts in the
1970s and 1980s to local governments for public projects, leaving exactions borne
by the developer as an attractive option to the public when compared with the
increased property taxes that they themselves would shoulder.21 Over the course
of time, waste water facilities, schools, public parks, precinct houses, fire stations,
and even day care services became public welfare projects that developers might
be expected to help provide, most likely either through a dedication, an impact
fee, or some hybrid between the two.22
As might be expected, developers fought vehemently against the expansion of
exactions to include these types of off-site improvements, alleging inequities,
inefficiencies, and general ineffectiveness in the piecemeal, ad hoc decisionmaking process of local land use permitting.23 This time, the landowners had
some, albeit very limited, success.24 This success came in the form of state
supreme courts imposing varying—though rarely stringent—constraints on local
government use of exactions.25
Yet beginning with Nollan in 1987 and continuing with Dolan seven years later,
the U.S. Supreme Court pronounced a marked shift away from judicial deference
to municipal use of exactions. Nollan and Dolan call for a more stringent
standard of review than most, if not all, state courts previously employed in the
permit condition context.26 As explained in the following Part, however, these
exactions takings decisions provide deficient or conflicting guidance on the
multiple dimensions of the property interest at stake in exactions takings disputes.
20
See Evans-Cowley, supra note 15, at 3.
Id.
22
Id.; Been, supra note 17, at 3-4.
23
See, e.g., Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of
Local Legitimacy, 71 CALIF. L. REV. 839, 841-46 (1983) (“critics object most to the piecemeal
changes in local land regulations [including]…the ‘conditional use permit’”); DUKEMINIER, ET AL.,
PROPERTY 1042 (6th ed. 2006) (“for local communities, enacting regulations is like printing
money, because the legal restrictions can be relaxed in exchange for goods and services”).
24
See Martin, supra note 11, at 8.
25
Compare Hollywood, Inc. v. Broward County, 431 So. 2d 606, 611–12 (Fla. Dist. Ct. App.
1983) (creating a deferential dual “rational nexus” test) and Associated Home Builders v. City of
Walnut Creek, 484 P.2d 606, 615 (Cal. 1971) (requiring only a “reasonable” connection between
permit conditions and anticipated project impacts), with Pioneer Trust & Sav. Bank v. Village of
Mount Prospect, 176 N.E.2d 799, 801 (Ill. 1961) (demanding need for infrastructure-related
condition be “specifically and uniquely attributable” to the project’s estimated impacts) and J.E.D.
Assocs., Inc. v. Town of Atkinson, 432 A.2d 12, 15 (N.H. 1981) (adopting “uniquely attributable”
test).
26
See, e.g., Timothy M. Mulvaney, The Remnants of Exaction Takings, 33 ENVIRONS ENVTL. L. &
POL'Y J. 189, __ (2010).
21
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II. EXACTION TAKINGS AND ISSUES OF TEMPORALITY
In Nollan v. California Coastal Commission,27 the state did not meet its burden of
proving that a condition requiring a beach access pathway bore an “essential
nexus” to the impacts caused by the development.28 Seven years later, Dolan v.
City of Tigard29 added an additional requirement to Nollan’s nexus test—it
apparently compelled a town to prove that (a) the reduction in social costs
attributable to Dolan’s dedication of a strip of land for flood control and a public
bicycle path was “rough[ly] proportion[ate]” to (b) the reduction in social costs
that the strip would provide to the public in offsetting flooding and traffic
resulting from the development.30 Yet while the legal validity of any takings
claims depends “upon what [one] consider[s] property, as a substantive matter, to
be,”31 neither decision proved a beacon of clarity on this score.
In a previous article,32 I illustrated these failings with the assistance of a model
espoused by Laura Underkuffler.33 I will only briefly reiterate them here.
Underkuffler asserts that property consists of four dimensions: theory, space,
stringency, and time. The theoretical dimension involves a decision reflecting the
incidents of ownership.34 The spatial dimension identifies those “objects,” or
types of interests, to which the chosen theory of rights applies. 35 The stringency
27
483 U.S. 825 (1987).
Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 828, 837 (1987).
29
512 U.S. 374 (1994).
30
Dolan v. City of Tigard, 512 U.S. 374, 391 (1994) (holding that “the city must make some sort
of individualized determination” regarding the quantitative nature of the condition). In actuality,
which variables are appropriate for comparison under Dolan’s “rough proportionality” analysis is
not settled. See infra note __.
31
See UNDERKUFFLER, supra note __, at 18. See also Underkuffler-Freund, supra note __, at 165
(“Until we know what the property [interest] at stake is, it is impossible to evaluate whether it has
been taken, or whether compensation for its loss should be paid.”).
32
Timothy M. Mulvaney, Proposed Exactions, 26 J. LAND USE & ENVTL. L. 277 (2011).
33
See LAURA S. UNDERKUFFLER, THE IDEA OF PROPERTY: ITS MEANING AND POWER 1533
(2003); Laura S. Underkuffler-Freund, Takings and the Nature of Property, 9 CAN. J.L. &
JURISPRUDENCE 161, 16982 (1996).
34
See UNDERKUFFLER, supra note ___, at 16. This dimension requires a universal theory of
individual rights (lest any idea of property be void of meaning). See also Susan Eisenberg,
Comment, Intangible Takings, 60 VAND. L. REV. 667, 70203 (2007) (discussing the role of a
universal theory for defining property rights). Such a theory could, for instance, be grounded in
positivist notions of the law, historical understandings, ordinary meaning, custom, or reasonable
and justified expectations. See UNDERKUFFLER, supra note __, at 1921. See also Jedediah Purdy,
A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. CHI.
L. REV. 1237, 1239 n.9 (2005); Joseph William Singer, The Ownership Society and Takings of
Property: Castles, Investments, and Just Obligations, 30 HARV. ENVTL. L. REV. 309, 31014
(2006) (describing conceptions of what “ownership” means to partially define property rights).
35
See UNDERKUFFLER, supra note __, at 21 (“If we choose, for example, the property holder’s
‘reasonable expectations’ as the theoretical dimension for our conception of property, the question
arises: ‘reasonable expectations with respect to what?’ If we choose legal rules as the theoretical
28
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dimension relates to the level of protection afforded to the identified private
interest in light of competing societal interests.36 And the temporal dimension, at
least according to Underkuffler, reflects whether, and the extent to which,
property rights can be modified in light of evolutional societal change.37
dimension for our conception of property, the question arises: ‘legal rules as applied to what?’”).
Underkuffler contends that the spatial dimension is relevant on both a conceptual and a geographic
scale. See Underkuffler-Freund, supra note ___, at 171 (“The chosen theory of rights has meaning
only with reference to a geographically or otherwise conceptually described field of application.”).
The “parcel as a whole” debate in regulatory takings jurisprudence provides an appropriate
example on the geographic scale. See Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104,
13031 (1978) (“‘Taking’ jurisprudence does not divide a single parcel into discrete segments and
attempt to determine whether rights in a particular segment have been entirely abrogated. . . .
[T]his Court focuses . . . on the nature and extent of the interference with rights in the parcel as a
whole . . . .”); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987)
(supporting the statement in Penn Central that the extent of deprivation effected by a regulatory
action is measured against the value of the parcel as a whole); Tahoe-Sierra Pres. Council v. Tahoe
Reg’l Planning Agency, 535 U.S. 302, 331 (2002) (quoting Penn Cent., 438 U.S. at 130-31) (“in
regulatory takings cases [the judiciary] must focus on ‘the parcel as a whole’”). But see Palm
Beach Isles Assocs. v. United States, 208 F.3d 1374, 138081 (Fed. Cir. 2000) (declaring the
relevant parcel to be the 50.7 regulated acres rather than the entire 311.7 acre parcel owned by the
plaintiff); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1181 (Fed. Cir. 1994) (finding
that the relevant parcel for takings purposes did not include portions of the parcel sold before
promulgation of the regulation at issue). See also Marc R. Poirier, The Virtue of Vagueness in
Takings Doctrine, 24 CARDOZO L. REV. 93, 110 n.65 (2002) [hereinafter Virtue of Vagueness] (“In
a takings claim based on loss of value, the loss must be examined relative to a ‘before’ picture of
what was initially at stake.”); James G. Titus, Rising Seas, Coastal Erosion, and the Takings
Clause: How to Save Wetlands and Beaches Without Hurting Property Owners, 57 MD. L. REV.
1279, 1348 (1998) (“A setback of one foot . . . might deny all beneficial use to that first foot of
land, yet barely impair the use of the remaining land.”).
36
UNDERKUFFLER, supra note __, at 25. For example, the Supreme Court, having on several
occasions chosen a theory of rights grounded in the “bundle of rights” metaphor, has categorized
the “right to exclude” as “one of the most essential sticks” in that bundle. Kaiser Aetna v. United
States, 444 U.S. 164, 176 (1979). Necessarily, then, there must be sticks within that bundle that
are afforded a lesser degree of protection than the right to exclude. See UNDERKUFFLER, supra
note __, at 25. Indeed, the Court in another case seemingly acknowledged the same, stating that an
ordinance limiting land to single-family dwellings does not “extinguish a fundamental attribute of
ownership[.]” Agins v. City of Tiburon, 447 U.S. 255, 262 (1980) (citing Kaiser Aetna, 444 U.S.
at 17980). Outside of the real property context, the stringency with which property rights are
protected also might differ depending upon the kinds of objects at issue. For example, money is
less protected than real property in light of its fungible nature. See, e.g., E. Enters. v. Apfel, 524
U.S. 498, 555 (1998) (Breyer, J., dissenting); United States v. Sperry Corp., 493 U.S. 52, 62 n.9
(1989). It also may differ in light of the different contexts in which ownership rights to a given
object appear. For example, a chair with which one has a personal attachment because it is a
family heirloom may be more protected than the same chair—from a physical standpoint—that is
replaceable with one of equal value. UNDERKUFFLER, supra note __, at 27 (citing Margaret Jane
Radin, Property and Personhood, 34 STAN L. REV. 957, 1007 (1982)).
37
See UNDERKUFFLER, supra note __, at 2930. If one chooses a theory of rights grounded in
ordinary meaning, however, it is difficult to distinguish Underkuffler’s description of the
theoretical dimension with that of the temporal dimension. This Article suggests that the temporal
nature of property, particularly in exaction takings cases, consists of several important subelements that separate it from choices surrounding a theory of rights. See infra notes ____ and
accompanying text.
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It appears that, in Nollan, and, by affirmation, Dolan, the Court simultaneously
selected two distinct theories of rights—one grounded in “ordinary meaning,”38
the other in the “bundle of rights” metaphor39—without delineating the contours
of either theory or suggesting how any distinctions between the two might be
reconciled. Similarly, the Court did not definitively interpret the spatial
dimension of property rights in the exactions context; rather, it has sent only
vague signals in identifying the categories of exactions to which the Nollan and
Dolan paradigm apply.40 Only the stringency dimension of property was
explicitly addressed in any detail: whatever theory of rights is utilized, in
whatever conceptual space those rights apply, Nollan and Dolan command that
the judiciary is to review any alleged infringement of those rights via an exaction
with an intermediate level of scrutiny; that is, the government bears the burden of
establishing compliance with the “essential nexus” and “rough proportionality”
tests.41 And even within the stringency dimension, the precise nature of the nexus
and proportionality tests remains subject to significant debate.
See Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831 (1987).
Id. (internal citations omitted).
40
See City of Monterrey v. Del Monte Dunes at Monterrey, Ltd., 526 U.S. 687, __ (1999)
(emphasizing that the Court “[has] not extended [the Dolan] standard beyond the special context
of [the particular types of permit conditions at issue in Nollan and Dolan]”); Lingle v. Chevron
U.S.A. Inc., 544 U.S. 528, 546 (2005) (asserting that Nollan and Dolan “began with the premise
that, had the government simply appropriated the easement in question, this would have been a per
se physical taking”).
41
For scholarly articles referring to the Nollan and Dolan threshold as a form of “intermediate
scrutiny,” see, for example, Carlos A. Ball & Laurie Reynolds, Exactions and Burden Distribution
in Takings Law, 47 WM. & MARY L. REV. 1513, 1516-17 (2006) (discussing academic debate on
the benefits and burdens of applying the intermediate scrutiny required by Nollan and Dolan to
exactions); Note, California Court of Appeal Finds Nollan’s and Dolan’s Heightened Scrutiny
Inapplicable to Inclusionary Zoning Ordinance.—Home Builders Ass’n of Northern California v.
City of Napa, 108 Cal. Rptr. 2d 60 (Cal. Ct. App. 2001), 115 HARV. L. REV. 2058, 205859
(2002) (discussing a California Court of Appeal’s refusal to apply intermediate scrutiny in
accordance with Nollan and Dolan to exactions in support of inclusionary zoning); Charles M.
Haar & Michael Allan Wolf, Euclid Lives: The Survival of Progressive Jurisprudence, 115 HARV.
L. REV. 2158, 218487 (2002) (suggesting that, in Nollan and Dolan, the Rehnquist Court,
“lowered the bar . . . for private property owners challenging government regulation of land” by
calling for a more significant level of scrutiny than had previously been required in land use cases
and placing the burden of proof on the defendant government); Fenster, Takings Formalism, supra
note __, at 622 (“Nollan’s and Dolan’s ‘essential nexus’ and ‘rough proportionality’ tests require
courts to apply heightened scrutiny to challenged land use regulations”); J. David Breemer, The
Evolution of the “Essential Nexus”: How State and Federal Courts Have Applied Nollan and
Dolan and Where They Should Go from Here, 59 WASH. & LEE L. REV. 373, 385 (2002) (citing
Ehrlich v. City of Culver City, 911 P.2d 429, 439 (1996)) (discussing the need for application of
the intermediate standard of scrutiny formulated by the Court in Nollan and Dolan to curtail the
government’s abusive use of its discretionary land use and police powers); Otto J. Hetzel &
Kimberly A. Gough, Assessing the Impact of Dolan v. City of Tigard on Local Governments’
Land-Use Powers, in TAKINGS: LAND-DEVELOPMENT CONDITIONS AND REGULATORY TAKINGS
AFTER DOLAN AND LUCAS 219 (David L. Callies ed., 1996) (stating that Nollan and Dolan “clearly
signaled the Court’s determination to provide greater protection for private property rights”
through the application of intermediate judicial scrutiny); Andrew W. Schwartz, Deputy City
38
39
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Not surprisingly, the content afforded by the Supreme Court to these first three
dimensions has provoked a significant amount of critical legal scholarship.42
However, the temporal dimension has gone largely undetected within exactions
jurisprudence, and, likely as a result, has not been fully explored in the academic
literature. The content afforded property’s temporal dimension is important on
several fronts. Nearly all takings disputes—regarding exactions or otherwise—at
least implicitly involve the temporal inquiry posed in Underkuffler’s model:
whether, and the extent to which, property interests may be refined in light of
social, political, economic, scientific, or technological developments.43 Yet there
are at least two other temporal issues surrounding property’s make-up that are
particularly relevant in the realm of exactions. In that earlier article, I analyzed
the first of these temporal issues: determining the point in time—be it upon the
proposition or imposition of an exaction—when property’s other dimensions
attach as to any particular permit applicant.44 I turn here to the second of these
temporal issues: assessing the relevance of the varying levels of delay between an
exaction and the external public impacts that exaction is intended to cure.
Attorney, S.F., Cal., Address at Georgetown Univ. Law Ctr., Litigating Regulatory Takings
Claims: The Application of Nollan/Dolan Heightened Scrutiny to Legislative Regulations and
“Unsuccessful Exactions,” (Oct. 2829, 1999); Donald C. Guy & James E. Holloway, The
Direction of Regulatory Takings Analysis in the Post-Lochner Era, 102 DICK. L. REV. 327, 346
(1998) (stating the Court’s nexus and proportionality tests represent the application of heightened
judicial scrutiny). See also STEVEN J. EAGLE, REGULATORY TAKINGS § 7-10(b)(7) (3d ed. 2005).
42
See, e.g., supra notes ___ and accompanying text.
43
Compare Stop the Beach Renourishment, Inc. v. Fla. Dept. of Envtl. Prot., 130 S. Ct. 2592, 2610
(2010) (plurality opinion) (suggesting that a judicial change in the common law could amount to
an unconstitutional taking even if that change is predictable), with Lucas v. S.C. Coastal Council,
505 U.S. 1003, 106970 (1992) (Stevens, J. dissenting) (“[O]ur ongoing self-education produces
similar changes in the rights of property owners: New appreciation of the significance of
endangered species; the importance of wetlands; and the vulnerability of coastal lands, shapes our
evolving understandings of property rights.” (citations omitted)).
44
Mulvaney, Proposed Exactions, supra note __. In that piece, I offered three reasons to suggest
that only upon the imposition of an exaction should the existing exaction takings construct attach
as to any individual permit applicant: first, where a proposed exaction is refused or withdrawn, no
property has been taken; second, judicial speculation on the substantive worth of hypothetical
exactions suggests such matters are not suitable for review; and third, burdening governmental
entities with possible takings liability for statements made during pre-decisional negotiation
sessions places a chilling effect on regulator-landowner coordination. Id. at 30102.
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III. RELYING ON EXACTIONS TO PREPARE FOR FUTURE CONTINGENCIES
Several recent exaction takings cases have addressed claims of takings liability
where the proffered exactions will not result in immediate or near-term
improvements, but instead respond to an anticipated future harm.
For
comparative purposes utilized in Part IV below, this section identifies three
examples of decisions hold that an exaction-for-the-future does not amount to a
taking, before analyzing three that reached the contrary conclusion.
A. A Sampling: An Exaction-for-the-Future Does Not Constitute a Taking
In McClure v. City of Springfield,45 Robert and Sharon McClure owned a 25,700
square foot lot in Springfield, Oregon, bordered by 8th Street to the east and Main
Street to the south.46 The McClures desired to divide their lot into three smaller
lots: Parcel 1 would border 8th Street only; Parcel 2 would lie mostly west of
Parcel 1, with a twenty-foot panhandle along the northern end of Parcel 1 to
provide access to 8th Street; and Parcel 3 would mirror Parcel 2 to the south, with
a similar twenty-foot panhandle along Parcel 1’s southern end to provide access to
8th Street.47 Main Street bordered the southern end of Parcel 3.48
The city’s planning director approved this partition request with several
conditions. One such condition called for the dedication of a twenty-foot right-ofway along the southern edge of the property to allow for the future widening of
Main Street.49 This proposed right-of-way along a portion of Parcel 3’s Main
Street border would eliminate the proposed twenty-foot panhandle granting Parcel
3 access to 8th Street and cause Parcel 3 to front entirely upon Main Street.50
The McClures viewed the condition as an excessive, unconstitutional exaction.51
The city commission imposed the planning director’s proposed condition.
However, Oregon’s Land Use Board of Appeals remanded the matter, ordering
the city to demonstrate that the public cost of increased traffic on Main Street
45
175 Ore. App. 425, 436 (Or. Ct. App. 2001).
Id. at 1223.
47
Id. at 1223-24.
48
Id.
49
Id. at 1224. The other conditions—which ultimately were deemed exaction takings under the
Dolan standard—included the dedication of “a 10 foot by 10 foot triangular area on the southeast
corner of the property to ensure adequate sight visibility and turning radius for the intersection at
M[ain] and 8th streets” and “a five-foot strip along the 8th Street frontage to widen the 8th Street
right-of-way for construction of a curbside sidewalk and street lighting, as well as sidewalk and
street lighting improvements along 8th Street. Id.
50
Id.
51
Id.
46
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caused by the McClures’ development was roughly proportional to the required
dedication of the twenty-foot right-of-way.52 The city adopted additional findings
to justify requiring the conditions,53 and the Land Use Board of Appeals
ultimately upheld the dedication condition in a subsequent proceeding.54
The McClures appealed, arguing that the city’s evidence did not indicate that
Main Street would ever be improved because the city had not acquired
dedications from all of the other owners whose property abutted Main Street.55
The McClures insisted that since the city lacked all of the required dedications to
expand Main Street, any benefits that the city claimed would stem from the
McClures’ dedication would be illusory, at least in the near-term.56
The court responded to this contention by asserting that “[i]f each property owner
could avoid an exaction because the city had not yet obtained all dedications
necessary to improve the street, no improvement would be possible.”57 To this
appellate panel, the timing of planned improvements to Main Street did not affect
whether the proposed conditions withstood Dolan’s roughly proportionality
strictures.58
The exaction at issue in Ocean Harbor House Homeowners Ass’n v. Cal.
Coastal Comm’n59 did not involve future traffic accommodation but rather an
assurance that the public could continue accessing a public trust resource after
projected erosion eliminated an existing access way to it. Ocean Harbor House is
a condominium complex on Del Monte Beach in Monterey, California.60 The
Ocean Harbor House Homeowners Association (“Association”) employed several
“soft” methods to combat higher-than-usual tides and coastal erosion that
threatened its seaward buildings, but none of them proved adequate.61 To achieve
more permanent protection, the Association sought permission from the
California Coastal Commission (“CCC”) to construct a 585-foot seawall.62
52
Id. at 1224-25.
Id. at 1225.
54
Id. at 1226.
55
Id. at 1228.
56
Id.
57
Id.
58
Id.
59
Ocean Harbor House Homeowners Ass’n v. Cal. Coastal Comm’n, 77 Cal. Rptr. 3d 432 (Cal.
Ct. App. 2008).
60
Id. at 435.
61
Id.
62
Id.
53
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The CCC prepared a report stating that the seawall ultimately would cause a loss
of one acre of beach with attending loss of lateral beach access and recreational
use.63 Though a California statute allowed seawalls to protect existing structures,
the CCC report noted that no feasible method existed to mitigate the beach loss at
that site with a seawall in place.64 To reconcile this conflict, the CCC report
recommended granting the permit to build the seawall on the condition that the
Association pays a mitigation fee, to be used for the purchase of beachfront
property elsewhere for public recreational use.65 The CCC calculated that the
beach in front of the Association’s buildings would erode at a rate of 870 square
feet per year for fifty years, at which point the relevant portion of beach would be
eliminated.66 It then estimated the recreational value of the beach per person and
used that figure, combined with the rate of erosion, to set the cumulative
recreational value of the beach until it completely eroded at $5.3 million.67
The Association brought suit against the CCC, arguing that the mitigation fee,
which represented the cumulative value of the beach over fifty years, was an
unconstitutional taking because there was no nexus or rough proportionality
between the fee and the impact of the seawall.68 After the trial court concluded
that the mitigation fee both shared a nexus and rough proportionality with the
seawall, the Association appealed.69
In drawing a nexus between the mitigation fee and the seawall’s impact, the
California appellate court emphasized the inevitability of beach erosion the
seawall would cause.70 Because the resultant loss of recreational use would occur
as the beach erodes, the court reasoned, a fee to increase recreational beach use
elsewhere has a “logical tendency” to mitigate the problem.71 Although the
Association could do nothing at its particular location to remedy the loss of public
beach, it could alleviate the general loss of public beach through the fee.72
It bore little mind to this California appellate court that the public benefits of the
exacted fee at issue rested on fifty years of foresight. As in McClure, this
63
Id. at 436.
Id.
65
Id.
66
Id.
67
Id. at 437, 439.
68
Id. at 440.
69
Id. at 441.
70
Id. at 445.
71
Id. at 446.
72
Id.
64
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temporal delay proved inconsequential to determining the exaction’s nexus or
rough proportionality with the stated development impact.
McClung v. City of Sumner73 represents a third case upholding an exaction-forthe-future in the face of a takings challenge. To combat considerable flooding it
had experienced in prior years, the City of Sumner adopted an ordinance (the
“diameter ordinance”) requiring all new developments to install storm pipes with
a minimum of twelve-inch diameters.74 The city also developed a plan (the “trunk
line plan”) for a storm drainage “trunk line” consisting of pipes even larger than
twelve inches in diameter that ultimately would receive discharge from a series of
future development sites and convey that discharge to an outfall.75
Daniel and Andrea McClung sought a permit from the city to (1) construct a
Subway restaurant on their property, and (2) pave an alley behind the restaurant
for parking.76 The alley already contained four feet of twelve-inch storm water
pipes and 350 feet of six-inch pipes.77 The city requested that the McClungs
replace all of the pipes with twenty-four-inch pipes to adhere to the city’s plans
for the storm drainage trunk.78 As the requesting pipes would exceed the diameter
ordinance’s minimum requirement, the city offered several concessions to offset
the additional cost of the pipes.79 The McClungs accepted these concessions and
developed their property with twenty-four-inch pipes.80
After construction had begun, the McClungs filed a complaint in Washington
state court alleging that the city’s efforts to upgrade its storm drains through the
trunk line plan amounted to a compensable taking.81 After a lengthy procedural
history, the case made its way to the U.S. Court of Appeals for the Ninth Circuit.
The court ultimately held that the McClungs “contracted” for the twenty-four inch
pipes by accepting the conditional permit and engaging in construction, and
thereby waived their exaction takings claim.82 However, in dicta, the court
implied that, had the McClungs challenged the exaction pre-construction, the fact
that the twenty-four inch pipes would service anticipated but as yet un-
73
McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008).
Id. at 1222.
75
Id. The city funded this trunk line plan in large part by increasing the stormwater general facility
charge imposed on property owners.
76
Id.
77
Id.
78
Id.
79
Id. at 1223. These concessions included the waiver of permit and inspection fees.
80
Id.
81
Id.
82
Id. at 1229-30.
74
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contemplated neighboring development would not affect the exaction takings
analysis.
B. A Sampling: An Exaction-for-the-Future Does Constitute a Taking
In Burton v. Clark County,83 Lance Burton owned a 0.78-acre plot of land in a
relatively undeveloped area outside of Vancouver, Washington. 84 The parcel
adjoins existing subdivisions to the west and north, and high-voltage electrical
transmission lines on the south.85 “A parcel of raw land,” owned by one Maddux,
lay to the east.86
Burton proposed to subdivide his property into three wedge-shaped parcels for
construction of a residential cul-de-sac. The county’s apprehensions with
Burton’s project centered on traffic circulation and emergency vehicle access
associated with “pocket neighborhoods” that lack access to adjoining
developments.87 Northeast 65th Street runs east-west, and dead-ends into Burton’s
western boundary.88 Northeast 20th Avenue runs north-south, and dead-ends into
the northern boundary of Maddux’s property.89 Clark County planners had
desired since the 1980s to connect the two roads by extending them across Burton
and Maddux’s properties.90 The relevant portions of the county code stated:
Where a public road has been created in such a manner as to be
able to be extended …in accordance with adopted road
plans….then: (1) All residences…shall be constructed in such a
position on the property that they will not interfere with the
extension of the roadway…to adjacent areas and shall be so
situated that such extension will make orderly and planned
development for additional road installations to meet the
reasonable minimum requirements of good and safe traffic
circulation…, and, (2) Right-of-way…necessary to such
extension…and falling within parcels being developed, shall be
granted or created as a condition of development approval.91
83
Burton v. Clark County, 958 P.2d 343 (1998).
Id. at 345.
85
Id. at 34546.
86
Id. at 345.
87
See id. at 356.
88
Id. at 346.
89
Id.
90
Id. at 346
91
Clark County Code 12.05.370 (1998) (repealed by Sec. 1 of Ord. 1999-05-20).
84
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In the case of Burton’s proposed development, the county specifically wanted to
assure that, in the future, emergency vehicles responding to one of the homes in
Burton’s area could quickly exit “if called to another emergency elsewhere.” 92 It
produced a report estimating that Burton’s proposed development would generate
an additional thirty automobile trips per day on the nearby roads. 93 Therefore, the
county conditioned Burton’s approval on a 50 foot roadway dedication for the
extension of Northeast 65th Street that, when ultimately connected to a projected
future extension of Northeast 20th Avenue, would alleviate the county’s
concerns.94 In effect, the county’s decision to impose the noted exaction supports
the premise that, where a developer contributes to a changing landscape—here,
the conversion of a rural area to an urban area—it is the developer’s onus to
contribute in appropriate degree to curing the cumulative public problems
associated with that conversion.95
After some procedural irregularities,96 the trial court ultimately re-instated an
order of the county hearing examiner approving Burton’s short plat without the
exacted road.97 The county, the trial court affirmed, had not demonstrated that the
Id. at 356. According to the county hearing examiner, who rejected Burton’s initial appeal of
the County’s exaction imposition, “[c]onnectivity [of streets] also reduces trip distances and
thereby helps reduce pollution, makes it easier for pedestrians and bicyclists to go from one point
to another more directly, and provides for less isolation between neighborhoods.” Id. at 349.
93
Id. at 350. Road impact fees and dedications are commonly upheld where the governmental
entity establishes the fee based on the projected increase in motor vehicle trips associated with the
new development. See, e.g., N. Ill. Home Builders Ass’n, Inc. v. County of Du Page, 621 N.E.2d
1012, 1017 (Ill. App. Ct. 1993); Home Builders & Contractors Ass'n v. Palm Beach County, 446
So. 2d 140, 142 (Fla. Dist. Ct. App. 1984).
94
Id. (“When . . . the exacted road connects with Northeast 20th Avenue, it will tend to alleviate
the identified public problems. Traffic will be able to circulate to the east as well as to the west;
not all traffic will have to use the roads to the west; police and fire vehicles will be able to enter
the neighborhood from either direction; and fire trucks will be able to exit the neighborhood
without needing to turn around.”).
95
See, e.g., David M. Driesen, The Societal Cost of Environmental Regulation: Beyond
Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545, 59394 (1997) (identifying the
commonality of regulatory officials failing to separate, and account for, incremental individual
contributions to what ultimately amount to significant cumulative impacts).
96
Id. at 349350.
97
Where a court determines that the reviewed exaction violates Nollan and Dolan, it seems
appropriate that the regulating entity should have the ability to choose among the assuredly many
other conditions that would be enough to offset the development’s external effects. Mulvaney,
Proposed Exactions, supra note __, at 305. But see William J. Jones Insurance Trust v. City of
Fort Smith, 731 F. Supp. 912, 914 (W.D. Ark. 1990) (finding exaction takings liability and
ordering the government “to issue the requested permit unconditionally”); St. Johns River Water
Mgmt. Dist. v. Koontz, 5 So. 3d 8 (Fla. Ct. App. 2009) (finding exaction takings liability, and
ordering that the government (a) pay compensation for the lost rent of his entire underlying parcel
and (b) issue the permit the government had originally denied with only the applicant’s selfproposed permit condition attached thereto).
92
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road conditions required by the county’s standards were justified in light of the
impacts caused by Burton’s proposed development.98 Clark County appealed.99
The appellate court affirmed the trial court’s ruling in favor of Burton.100 The
appellate court’s decision has been identified by several scholars supportive of
limited governmental land use controls as a prescient presentation of what the
cryptic nexus and proportionality standards of Nollan and Dolan actually mean.101
The court suggested that, in the context of conditioning land use permits, “Nollan,
Dolan, and their Washington progeny stand for at least four propositions.”102
According to the court, Nollan and Dolan require the government to prove: (1)
there is a public problem;103 (2) the proposed development will create or
exacerbate that problem;104 (3) the exaction tends to alleviate that problem;105 and
(4) by complying with the exaction, the developer will fix no more of that
problem than he has created.106 According to the court:
When combined, these four propositions boil down to two
relationships: a relationship between the project and the identified
public problem, and a relationship between the identified public
problem and the proposed solution to that problem. … The
ultimate goal is [for the government] to show that the … exaction
… is reasonably related to all or part of an identified public
problem that arises from … the development project. Unless the
government makes this showing, it lacks a ‘legitimate state
interest’ …in imposing the … exaction.107
The court found that the government had identified a public problem—traffic—
“to at least a slight degree.”108 But it was concerned that the record failed to
indicate “when, if ever, the road being exacted from Burton will extend across the
98
Burton, 958 P.2d at 350.
Id.
100
Id.
101
See David L. Callies, Regulatory Takings and the Supreme Court: How Perspectives on
Property Rights Have Changed from Penn Central to Dolan, and What State and Federal Courts
Are Doing About It, 28 STETSON L. REV. 523, 570-71 n.309 (1999); David L. Callies & Glenn H.
Sonoda; Providing Infrastructure for Smart Growth: Land Development Conditions, 43 IDAHO L.
REV. 351 (2007); Richard Duane Faus, Exactions, Impact Fees, and Dedications—Local
Government Responses to Nollan/Dolan Takings Law Issues, 29 STETSON L. REV. 675 (2000).
102
Burton, 958 P.2d at 353
103
Id.
104
Id. at 354.
105
Id. at 355.
106
Id.
107
Id.
108
Id. at 356.
99
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Maddux’s parcel and connect with Northeast 20th Avenue.”109 This concern about
speculative activity on the part of the government planners peculiarly spurred the
court to engage in its own speculation: The court compared the effects of the
exaction if the connector road ultimately is constructed versus the effects of the
exaction if the connector road is never constructed.110
If the connector road ultimately is constructed, said the court, “it will tend to
alleviate the identified public problems.”111 Furthermore, the court said Burton’s
conferral of the easement would tend to alleviate those problems “in a way that is
‘roughly proportional’ to the project’s effect on those problems.”112 The court
stated that even though Burton’s development will exacerbate the traffic
circulation and emergency access problems to a small degree, the exaction
represents “only a small part of the solution to those problems.”113
But if the road is never connected, the exacted right-of-way obviously “will lack
any tendency to solve or alleviate any of the identified public problems.” 114 The
court found the crucial question, then, to be just when the exacted roadway will
extend across Maddux’s property.115 The appellate court “assume[d]” that the
government “may sometimes rely on the future as well as the present when
attempting to establish” the required nexus and proportionality between the
impacts of the development and the relevant exactions.116 However, it also
somewhat contradictorily asserted that the government “may not rely on the
future unless the record furnishes a basis for inferring what the foreseeable future
holds.”117 In probing the evidence for what the “foreseeable future” might hold,
the court found insufficient a staff report stating that the exacted road “shall be
surveyed and designed to eventually connect with Northeast 20th Avenue.”118 Yet
at the same time, it noted that a statement from a planner that “‘infill’ parcels like
Maddux’s are usually developed within a certain time after the urbanization
109
Id.
Id.
111
Id.
112
Id.
113
Id. The court asserted that the solution to the identified problems is “the creation of an overall
street grid as the area changes from rural to urban.” Id. It is not clear that the court selected the
appropriate variables for conducting the comparison required by Dolan’s rough proportionality
requirement. For a discussion on the variables appropriate for comparison in the course of a
“rough proportionality” analysis, see infra note __.
114
Id. at 357.
115
Id.
116
Id. at 355 n.52. The court acknowledged, however, that the extent to which the government
may rely on future events is “not well settled.” Id.
117
Id. at 355.
118
Id. at 357.
110
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process starts” could be sufficient.119 With no such statement in the record, the
court concluded that the exaction could amount to “a road to nowhere,” and thus
violated Dolan’s proportionality test.120
Goss v. City of Little Rock121 involved a rezoning request by one Charles Goss.
In September 1971, Goss purchased 3.7 acres in an unincorporated area outside
Little Rock.122 Goss operated a convenience store, gas station, laundromat, and
car wash on the premises since soon after that purchase.123 In 1985, Little Rock
annexed an area that included Goss’s property.124 In accordance with the city
code, the annexed area was classified for single-family residential use.125
However, the city permitted Goss to continue his operations pursuant to a
nonconforming use exception.126 Still, he requested that the city rezone the
property for commercial use to make it easier for him to sell it.127
The City of Little Rock denied this commercial rezoning request in light of the
applicant’s refusal to dedicate a portion of his property for highway expansion as
a condition thereto.128 This denial, according to the city, sought to protect the
public from the increased traffic that would result from rezoning the property
from its current residential-only classification.129 Both the District Court and the
119
Id. at 357 n. 60.
Id. at 357. A small selection of state courts rejected exactions-for-the-future of a similar nature
prior to Nollan and Dolan. See, e.g., Unlimited v. Kitsap County, 750 P.2d 651 (1988) (rejecting,
pre-Dolan, an exaction where the government intended to hold the property “until undefined
future time” when the anticipated roadway “can be extended to connect with other, as yet unbuilt,
roads” and “[t]here is no expectation that the property that could use the anticipated roadway “is to
be developed at the same time” as the applicant’s development); Simpson v. N. Platte, 292
N.W.2d 297 (1983) (rejecting, prior to both Nollan and Dolan, a condition requiring the provision
of a right of way where “[n]o project was immediately contemplated whereby the street [which
would be partially constructed on the right of way] would be constructed nor is there any evidence
regarding what the particular project would involve”). The decision in Burton seems to sit in
contrast with a Washington appellate court opinion handed down in Isla Verde International
Holdings, Inc. v. City of Camas, 990 P.2d 429 (Wash. Ct. App. 1999) just one year after Burton.
As one scholar describes it, the court upheld “a road dedication requirement for emergency
vehicles in the absence of evidence concerning the cost of the road and its effects on the subject
property.” Callies & Sonada, supra note __, at 363. Yet, peculiarly, two of the three judges that
decided Burton also concurred in the holding in Isla Verde. Judge Dean Morgan authored Burton,
an opinion in which Judge Karen G. Seinfeld joined. Burton, 958 P.2d at 345. Their roles simply
were reversed in Isla Verde. 990 P.2d 429.
121
Goss v. City of Little Rock, 151 F.3d 861, 863 (8th Cir. 1998).
122
See Goss v. City of Little Rock, 90 F.3d 306, 307 (8th Cir. Ark. 1996).
120
123
124
125
126
127
Id.
128
129
Id. at 862.
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Court of Appeals agreed that the traffic problem could be remedied by the
requested dedication of land, assuming the dedication was in fact used to expand
the highway presently adjoining Goss’s property.130 However, the U.S. Court of
Appeals for the Eighth Circuit affirmed a district court ruling that found the city’s
proposed assessment of the impact of rezoning Goss’s property for commercial
use “too speculative,” and thus violative of Dolan.131 The court derided the city
for conditioning the rezoning request on alleviating traffic concerns, for any
significant additional traffic would only be generated “at some unknown point in
the future” if Goss’s buyer or his successors actually used the property as rezoned
and erected a strip mall on the land.132
In Schultz v. City of Grants Pass,133 the petitioners submitted an application for a
development permit to partition their 3.85-acre property in two.134 One lot would
measure ninety-feet by two hundred and one-feet at the corner of Savage Street
and Beacon Drive, while the other would consist of the land that remained.135
The city conditioned approval of the subdivision on the provision of several
rights-of-way for public roads.136 The city reasoned that the division of the
property would increase street use and, therefore, improvement and expansion of
the streets was essential. 137 With respect to the extent of the dedications, the city
pointed to the potential build-out of Schultz’s parcel to include the construction of
twenty homes, as authorized under the city’s comprehensive community
development plan.138
130
Id.
Id. at 863. For an analysis of whether the exaction takings construct that is ordinarily applied
when an exaction is imposed is also applicable at the point in time when, as in Goss, an exaction is
merely proposed, see Mulvaney, supra note __. For purposes of discussing Goss herein, it is
assumed that such an application is appropriate.
132
Id. Goss is a peculiar holding, for the court stated, “Little Rock has a legitimate interest in
declining to rezone Goss’s property, and the city may pursue that interest by denying Goss’s
rezoning application outright, as opposed to denying it because of Goss’s refusal to agree to an
unconstitutional condition . . . .” Id. at 864. Thus, the court said that a taking occurred, but no
remedy—compensation or otherwise—was due. Id. at 866. See also David L. Callies, Regulatory
Takings and the Supreme Court: How Perspectives on Property Rights Have Changed from Penn
Central to Dolan, and What State and Federal Courts Are Doing About It, 28 STETSON L. REV.
523, 570-71 n.309 (1999) (“[w]hile finding the highway dedication a taking, the court held the city
could avoid any takings claims by simply refusing to rezone the subject property without the
invalid dedication, pursuing its legitimate interest in declining to rezone property”).
133
Schultz v. City of Grants Pass, 884 P.2d 569 (Or. Ct. App. 1994).
134
Id. at 570.
135
Id.
136
Id.
137
Id. at 571.
138
Id.
131
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As in Goss, while the court agreed that the city had established the sufficient
nexus, it rejected the city’s position regarding proportionality. 139 The court
criticized the city for establishing conditions based on anticipated impacts that
could result from maximization of the property’s development potential.140 The
court found nothing in the record to indicate that the petitioners intended to
develop the property to its full potential in the near term. It declared that this
“worst-case scenario” was improperly based only on “the city’s speculation as to
what other construction could take place at some time in the future.”141
C. Summarizing the Exaction-for-the-Future Samples
In sum, this Part has identified six examples where courts have faced takings
claims challenging the imposition of exactions-for-the-future. The cases
demonstrate the commonality of local government usage of exactions to counter
development impacts beyond those expected to occur in the present or near-term.
The disparate results on the takings question necessitate a deeper look into the
jurisprudential, theoretical, and normative themes underlying those decisions that
seemingly treat exactions-for-the-future as presumptively less constitutionally
palatable than more traditional exactions.
IV. EXACTIONS-FOR-THE-FUTURE AS TAKINGS:
JURISPRUDENTIAL, THEORETICAL, AND NORMATIVE THEMES
This Part explores four themes underlying those lower court decisions finding that
exactions-for-the-future amount to compensable takings.
First, judicial
predisposition against exactions-for-the-future exposes a fundamental tension
with the direction of land use law towards additional comprehensive planning.
Second, the vitality of some jurisdictions’ apparent requirement that exactions
bear immediate fruit arguably is equivalent to a near categorical rule against using
exactions to counter a broad collection of public harms that pose precise
quantification difficulties. Third, requiring in the course of a takings analysis that
exactions demonstrate an imminent or near-term response to a public problem
perpetuates the longstanding vagaries at the boundaries of takings and due process
review. Fourth, incorporating an immediacy criterion into exaction takings law
signals a theoretical vision of private property as creating a barrier between
individual interests and permissible government action that is even more
139
Id. at 572.
Id.
141
Id. (emphasis added).
140
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significant than that espoused in the U.S. Supreme Court exaction takings
decisions in Nollan and Dolan.
A. Tension with Planning Demands
Land use planning broadly guides property development by establishing the type
and degree of allowable intensification of real property. It typically reflects a
community’s long term vision, economic conditions, geography, and
environmental resources. The existence of comprehensive planning in a given
jurisdiction has long served as a basis for deference in regulatory takings cases.142
More recently, its import has been recognized in disputes surrounding whether an
outright exercise of eminent domain is conducted for a “public use.”143 This
section first surveys the impact of planning in these two areas of takings law. It
then distinguishes the prominent role of planning in regulatory takings and
“public use” jurisprudence from its peculiarly limited role in exaction takings case
law and, in particular, in those cases involving exactions-for-the-future.
i.
Planning and Regulatory Takings
The U.S. Supreme Court routinely has pointed toward governmental planning
efforts in support of judicial deference to ordinary regulatory acts in regulatory
takings disputes.144 This tack is no more evident than in the “polestar” of modern
regulatory takings jurisprudence, Penn Central Transportation Co. v. City of New
York.145 In dissent, then-Justice Rehnquist chided New York’s historic landmarks
ordinance as singling out select property owners to bear the economic burdens of
the public’s preservation ideals.146 Yet Justice Brennan’s opinion for the majority
asserted that “New York City law embodies a comprehensive plan to preserve
structures of historic or aesthetic interest wherever they might be found in the
city.”147
The Penn Central Court went on to establish a multi-factor balancing test
centered on the economic impact individual landowners bear in light of the
reasonable expectations associated with their investment.148 In subsequent
application, this test has proven quite deferential to the government, particularly
142
See infra notes __ and accompanying text.
See infra notes __ and accompanying text.
144
Nicole Stelle Garnett, Planning as a Public Use?, 34 ECOLOGY L.Q. 443, 448 (2007).
145
Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).
146
Id. at 147 (Rehnquist, J., dissenting).
147
Id. at 132.
148
Id. at 12428.
143
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amidst evidence of comprehensive planning. For instance, in Tahoe-Sierra Pres.
Council v. Tahoe Reg’l Planning Agency,149 planning efforts to preserve the water
quality of Lake Tahoe proved central to the Court’s rejection of property owners’
claims that a thirty-two month development moratorium required the payment of
compensation.150
Six Justices stressed the critical function of “interim
development controls,” favorably citing “consensus in the planning community”
that such devices “are an essential tool of successful development.”151
I am in the process of incorporating additional examples and analysis here. For
the most up-to-date version of this section, or to provide comments or make
suggestions of particularly apt examples, please contact the author at
tmulvaney@law.txwes.edu.
ii.
Planning and “Public Use”
There also is a significant body of U.S. Supreme Court takings jurisprudence
outside the regulatory context, including a triumvirate of cases surrounding the
Fifth Amendment’s command that the government shall not take private property
“for public use” without providing just compensation.152 In the first of these
cases, Justice Douglas wrote for a unanimous court that “blighted or slum
area[s]…must be planned as a whole. . . . If owner after owner were permitted to
resist[,] . . . integrated plans for redevelopment would suffer greatly.”153 In the
second of the Court’s celebrated “public use” decisions, the Court—again,
unanimously—upheld the condemnation of landlords’ reversions for the purpose
of transferring them to tenants as part of a comprehensive “land reform” program
aimed at breaking an oligopolistic land market.154
Planning took on increasing significance in the third installment of the Court’s
public use jurisprudence in 2005 in Kelo v. City of New London.155 Justice
Stevens’ opinion for the Court emphasized that the comprehensive nature of New
Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 331 (2002)
Tahoe-Sierra, 535 U.S. 302 (2002).
151
Id. at 33839.
149
150
152
153
Berman v. Parker, 348 U.S. 26, 30 (1954) (upholding the National Capital Planning
Commission’s condemnation of non-blighted department store building because of, in part, the
comprehensive nature of the Commission’s redevelopment plan).
154
See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984).
155
Kelo v. City of New London, Conn., 545 U.S. 468 (2005). As one scholar notes, “The Kelo
majority mentioned the words “plan” and “planning” forty times; Justice Kennedy’s separate
opinion brought the tally to nearly fifty.” See Garnett, supra note __, at 444.
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London’s planning process provided support for the finding that the
condemnation of the residential properties at issue furthered a public economic
redevelopment purpose.156 Justice Kennedy, who provided the deciding vote to
uphold the city’s condemnation of residential properties for purposes of economic
redevelopment, authored a separate opinion.157 This separate opinion—of
considerable import for lower courts and litigants moving forward given the
Court’s 5-4 split—arguably went even further than the majority with respect to
the import of planning. Justice Kennedy suggested that planning very well may
be the determining factor in separating presumptively impermissible government
acts from valid public takings.158 While he would not engage in “conjecture” as
to when such a presumption might apply, he explained his comfort with the
conclusion that Kelo did not present such an instance.159
iii.
Planning and Exaction Takings
Given this consistent emphasis on land use planning in the U.S. Supreme Court’s
regulatory takings and “public use” jurisprudence, it is surprising that any
discussion of planning is mysteriously absent in the Court’s principal exaction
takings cases of Nollan and Dolan.160 The Nollan majority makes no mention of
the fact that the claimant purchased property in an area with an existing
Id. at 48387 (“The City has carefully formulated an economic development plan that it
believes will provide appreciable benefits to the community. … [A] one-to-one transfer of
property, executed outside the confines of an integrated development plan would certainly raise a
suspicion that a private purpose was afoot.”).
157
Id. at 49093. (Kennedy, J., concurring)
158
Id. See also Garnett, supra note __, at 444. Kennedy’s perspective echoes that of the Illinois
Supreme Court’s opinion in Southwest Illinois Development Authority v. National City
Environmental, 768 N.E.2d 1 (Ill. 2002). In that case, the Illinois Supreme Court rejected a
proposed condemnation of land that would be used for parking as part of an alleged economic
redevelopment plan. Id. at 10. The Court declared:
The [Southwest Illinois Development Authority] did not conduct or commission a thorough study
of the parking situation at Gateway. Nor did it formulate any economic plan requiring [the]
additional parking …. Clearly, the foundation of this taking is rooted not in the economic and
planning process with which the [Authority] has been charged. Rather, this action was undertaken
solely in response to [a private company’s] expansion goals …. It appears [the Authority’s] true
intentions were to act as a default broker of land for [that private company’s] proposed parking
plan.
Id. Southwest Illinois Development Authority provides the converse of W. Seafood Co. v. U.S.,
202 F. App’x 670 (5th Cir. 2006), where the Court of Appeals for the Fifth Circuit rejected a
landowner’s claim that the government’s asserted public purpose was pretextual because the
government’s significant planning measures mirrored those of New London in Kelo.
159
Kelo, 545 U.S. at 493 (Kennedy, J., concurring) (“[T]his taking occurred in the context of a
comprehensive development plan meant to address city-wide depression, and the projected
economic benefits of the project cannot be characterized as de minimis.”).
160
But see Garnett, supra note __, at 450 (“When a property owner challenges a regulation as
confiscatory, courts must … determine whether the government is asking owners to bear a
disproportionate burden of providing public benefits [in the exactions context).”).
156
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comprehensive government policy of requiring all similarly situated owners to
facilitate the exercise of public trust rights by conferring a public walking corridor
along the water’s edge as a condition to development.161 While the Dolan
majority offered surface praise to long-term planning—“[c]ities have long
engaged in the commendable task of land use planning …. The city's goals . . . are
laudable…”162—it simultaneously ignored the longstanding judicial deference to
the practice.
The Dolan Court explicitly pronounced what was implicit in Nollan:163 it departed
from the general rule applicable to zoning and other use restrictions that the
burden properly rests on the party challenging the regulation to prove that it
arbitrarily restricts a property right.164 Instead, the Court declared that the
government bears the burden to justify the required exactions.165 The Dolan
majority’s decision to abandon the traditional standard of deference afforded to
local governments that have conducted considerable planning was not lost on
Justice Stevens. In dissent, Justice Stevens asserted, “The Court has made a
serious error by abandoning the traditional presumption of constitutionality and
imposing a novel burden of proof on a city implementing an admittedly valid
comprehensive land use plan.”166
iv.
Planning and Takings Cases Involving Exactions-for-the-Future
In those lower court decisions finding that exactions-for-the-future amount to
takings, planning is not ignored, as largely occurred in Nollan and Dolan. Indeed,
the lower courts’ consideration of planning in the Burton, Goss, and Schultz
decisions outlined in the previous Part is quite explicit. It is, however, peculiar—
these decisions actually demonstrate an affirmative aversion to long-term
planning. In Burton, Clark County had identified the connector road on its
comprehensive plan, and the development, as proposed, would eliminate the
161
David A. Dana, Land Use Regulation in an Age of Heightened Scrutiny, 75 N.C. L. REV. 1243,
1263-65 (1997).
162
Dolan v. City of Tigard, 512 U.S. 374, 396 (1994).
163
Fenster, Takings Formalism, supra note __, at 627 (explaining that Nollan did not affirmatively
indicate that it was shifting the burden of proof to the government).
164
See Dolan, 512 U.S. at 405 (Stevens, J., dissenting) (“The Court has made a serious error by
abandoning the traditional presumption of constitutionality and imposing a novel burden of proof
on a city implementing an admittedly valid comprehensive land use plan.”).
165
Id. at 391, n.8 (“Justice Stevens’ dissent takes us to task for placing the burden on the city to
justify the required dedication. He is correct in arguing that in evaluating most generally
applicable zoning regulations, the burden properly rests on the party challenging the regulation to
prove that it constitutes an arbitrary regulation of property rights. Here, by contrast, the city made
an adjudicative decision to condition petitioner’s application for a building permit on an individual
parcel. In this situation, the burden properly rests on the city.”).
166
See id. at 405 (Stevens, J., dissenting).
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possibility of that road ever being constructed; in Goss, the landowner could
continue personally operating his commercial outfit only in light of the City of
Little Rock’s decision to grandfather this use despite its non-conformance with a
longstanding city-wide scheme; and, in Schultz, the City of Grants Pass, through
its community development plan, authorized the landowner to build up to twenty
homes on the relevant parcel and, in light of this authorization, merely sought
roadway easements to accommodate it. In effect, the finding of takings liability
in these types of cases faults governmental entities for over-planning.
Land use planning can inform the courts of the genuine-ness of the government’s
interest. In that sense, a comprehensive plan directly counters other types of
“plans” that so frightened the Nollan majority—those “out-and-out plans of
extortion.”167 And as one scholar reliably predicts, “Since Kelo encourages
planning, more planning will occur.”168 But in those jurisdictions where courts
express significant skepticism about exactions-for-the-future, governmental
entities seeking to preserve the exactions tool have to walk a dizzying line: they
presumably must search for a level of planning that is enough so as not to trigger
traditional regulatory takings or “public use”169 concerns, but at the same time not
too much so as to avoid triggering exactions takings liability.
B. Per Se Exaction Takings?
Prior to Nollan and Dolan, permitting entities admittedly were required to make
some effort to quantify their findings in support of an exaction beyond mere
conclusory statements, whether guided by a comprehensive land use plan or
not.170 However, not all anticipated burdens can be precisely temporally defined.
This section suggests that the “immediacy” criterion, at least as applied in cases
like Burton, Goss, and Schultz, almost serves as a per se rule against using
exactions-for-the-future to counter certain development impacts. This nearcategorical rule emanates from the fact that it is impossible for governmental
entities to meet the level of proof required where there necessarily is some
See, e.g., Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987) (internal quotations
omitted) (suggesting exactions may be "an out-and-out plan of extortion").
168
See Garnett, supra note __, at 461.
169
See Garnett, supra note __, at 454 (suggesting that, post-Kelo, “government officials will view
planning as a constitutional safe harbor and private litigants will consider a lack of planning a
constitutional red flag”).
170
See, e.g., Collis v. City of Bloomington, 246 N.W.2d 19 (Minn. 1976); Simpson v. City of N.
Platte, 292 N.W.2d 297, 301 (Neb. 1980); City of Coll. Station v. Turtle Rock Corp., 680 S.W.2d
802, 807 (Tex. 1984); Call v. City of West Jordan, 606 P.2d 217, 220 (Utah 1979); Jordan v. Vill.
of Menomonee Falls, 137 N.W.2d 442 (Wis. 1965); Wald Corp. v. Metro. Dade County, 338 So.
2d 863, 866-67 (Fla. Dist. Ct. App. 1976).
167
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uncertainty in projecting the specific amount of the public burdens forecast to
occur.
It bears admission that requiring exactions to exhibit an immediate or near-term
curative effect may have little impact in some exaction disputes.171 For instance,
Nollan involved an example of an external community impact that could be
immediately “cured.” Once the majority settled on a narrow definition of “public
access,”172 it had little difficulty concluding that the imposed exaction (a public
walking easement along the ocean) did not—and could never—“cure” the
development’s impact (blockage of the public’s view of the ocean).173 The Court,
however, suggested that a condition restricting the height or width of the proposed
structure, prohibiting fences, or requiring the provision of a public “viewing spot”
would cure the view loss immediately.174 For Justice Brennan in dissent, walking
access and view access are one in the same; thus, in his eyes, the access required
via the California Coastal Commission’s walking easement exaction would cure
the access lost due to the development without delay.175
But in other circumstances, the demand that exactions offset development impacts
in short order makes the utilization of conditional development approvals a
challenging proposition.176 Literature on the difficulties in proving causation is
voluminous, and it is these difficulties that make is quite unlikely that the party
bearing the burden of proof will prevail. Dolan itself is instructive here. First,
Dolan’s development—expansion of a hardware store and construction of a new
parking lot—would increase impervious cover, thereby preventing the infiltration
Faus, supra note __, at 703 (“traditional regulatory dedications and improvements are imposed
because there is a well-established cause-and-effect relationship between the property dedication
and improvements required by the regulations and social evils of congestion, safety, and health
problems that the regulations seek to remedy.”).
172
Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 849-50 (1987) (Brennan, J., dissenting)
(suggesting the majority’s has a “unrealistically limited conception of what measures could
reasonably be chosen to mitigate the burden produced by a diminution of visual access.”).
173
Id. at 838.
174
Id. at 836. However, the public record does not reveal that the permitting agency later required
any such viewing spot or like condition. Many scholars have noted that, if presented a choice
between providing a public viewing spot on one’s upland property and an access corridor along
the water, many might very well select the access corridor. See, e.g., Jerold S. Kayden, Zoning for
Dollars: New Rules for an Old Game? Comments on the Municipal Art Society and Nollan Cases,
39 Wash. U. J. Urb. & Contemp. L. 3, 47–48; Dana, supra note __, at 127782.
175
Id. at 84950 (Brennan, J., dissenting). Molly McUsic explains that the California Coastal
Commission had enumerated public goals beyond the provision of visual access that were “at least
rationally related to the permit condition,” but that the Court ignored. See McUsic, supra note __,
at 63738.
176
Fenster, Takings Formalism, supra note __, at 653 (“Takings rules impose external formality
on local regulatory decision making, requiring local governments to demonstrate nexus and
proportionality when those metrics are difficult to find, prove, and negotiate. In some instances,
such formality will work as intended; in others, it will not.”).
171
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of water into the underlying soil.177 Second, the expansion of the store would
bring more customers into the downtown area, and with more customers comes
more cars.178 The majority had little difficulty concluding that exacting a strip of
the applicant’s land for floodplain preservation and a bicycle path could cure the
development’s flooding and traffic impacts.179 However, the Dolan Court’s rather
elusive remand apparently tasked the trial court with determining this difficult
proportionality question: will the exaction ultimately “cure” more flooding and
traffic than the flooding and traffic that the applicant’s proposed development will
cause, such that the government has asked for too much?180
It is a far simpler task to measure if an exaction alleviates blockage of a public
access way, as in Nollan, than it is to measure if an exaction alleviates anticipated
traffic or flooding in a case like Dolan.181 It is true that traffic impact analyses
routinely are utilized to measure problems associated with roadway congestion,
including the economic costs linked to prolonged travel time, the environmental
and health effects of air pollution, and public safety.182 Yet accurately assessing
the future societal utilization of pedestrian and bicycle alternatives is a difficult
undertaking.183 And assessing the impact of floodplain degradation associated
177
Dolan v. City of Tigard, 512 U.S. 374, 382 (1994).
Id.
179
Id. at 387. Whether the walking easement exaction in Nollan cured too much—the
proportionality question—proved irrelevant to the Nollan majority, for no amount of walking
access, even if quite small, would cure the loss of viewing access.
180
Id. at 39596. Which variables are appropriate for comparison under Dolan’s “rough
proportionality” analysis is not settled. See Thomas W. Merrill, Dolan v. City of Tigard:
Constitutional Rights as Public Goods, 72 DENV. U. L. REV. 859, 885 (1995); McUsic, supra note
__, at 631. There are at least four values that could be relevant: (A) the public cost of those harms
attributable to the proposed development; (B) the reduction in those public costs that are
anticipated to result from the permit conditions; (C) the market value of the “property” acquired
through the permit condition; and (D) the financial benefits the applicant will realize from the
permit. One could make a colorable argument that the relevant comparison is between (A) and
(B), (A) and (C), or (B) and C), and quite possibly even (A) and (D).
181
See, e.g., Robert H. Freilich, & Terry D. Morgan, Municipal Strategies for Imposing Valid
Development Exactions: Responding to Nollan, in EXACTIONS, IMPACT FEES AND DEDICATIONS
2829 (Robert H. Freilich & David W. Bushek eds., 1995) (suggesting that “incremental needs for
public services and facilities generated by new development” are “susceptible to reasonably
precise measurement” when compared to the difficulties in measuring the adverse effects of
development on the affordable housing supply and the environment).
182
See, e.g., JAMES C. NICHOLAS, THE CALCULATION OF PROPORTIONATE-SHARE IMPACT FEES
2334 (1988); Roger Dahlstrom, Development Impact Fees: A Review of Contemporary
Techniques for Calculation, Data Collection, and Documentation, 15 N. ILL. U.L. REV. 557
(1995); Mary Edwards, Traffic Impact Analysis, under Community Guide to Development Impact
Analysis, UNIV. OF WIS. LAND INFO. & COMPUTER GRAPHICS FACILITY
http://www.lic.wisc.edu/shapingdane/facilitation/all_resources/impacts/analysis_traffic.htm (last
visited Aug. 27, 2011).
183
See, e.g., U.S. DEP’T OF TRANSP., PEDESTRIAN AND BICYCLE DATA COLLECTION IN UNITED
STATES COMMUNITIES: QUANTIFYING USE, SURVEYING USERS, AND DOCUMENTING FACILITY
EXTENT,
January
2005,
178
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with development akin to that proposed by Dolan is all the more challenging.
While scientific tools are being developed that more accurately measure the
curative benefits of preserving a stream bank (or, say, re-creating wetlands or
species habitat),184 precisely measuring the curative effect of such measures
remains a grave difficulty given the vast complexity of ecological systems. 185
Indeed, Dolan’s claim drew on these very difficulties, for she asserted “that the
city…has not identified any ‘special quantifiable burdens’ created by her new
store that would justify the particular dedications required from her which are not
required from the public at large.”186 This is a calculated litigation strategy:
advocate that a court adopt a standard (here, requiring the government to identify
“special quantifiable burdens”) that the opposing party could never meet (here, in
light of the types of impacts at stake). But, as Chief Justice Rehnquist’s opinion
for the Dolan majority attests, because the burdens are not specifically
quantifiable does not mean they do not exist. This understanding is evident, for
instance, where the Court indicates its concern only that the City of Tigard may
have demanded too much—a dedication—when an easement would suffice to
address the city’s concerns.187
http://www.pedbikeinfo.org/pdf/casestudies/PBIC_Data_Collection_Case_Studies.pdf; Robert H.
Freilich, and Terry D. Morgan, Municipal Strategies for Imposing Valid Development Exactions:
Responding to Nollan, in EXACTIONS, IMPACT FEES AND DEDICATIONS 21 (Robert H. Freilich &
David W. Bushek eds., 1995); Fenster, supra note __, at 658. See also Keith Hirokawa, Three
Stories About Nature: Property, the Environment, and Ecosystem Services, 62 MERCER LAW
REVIEW 541 (2011) (discussing the commoditization of ecosystem services); James Salzman &
J.B. Ruhl, Currencies and the Commodification of Environmental Law, 53 STAN. L. REV. 607
(2000).
184
See,
e.g.,
Impervious
Cover,
U.S.
ENVTL.
PROT.
AGENCY,
http://www.epa.gov/athens/research/impervious (last updated July 27, 2011); CHRISTIAN LAYKE,
MEASURING NATURE'S BENEFITS: A PRELIMINARY ROADMAP FOR IMPROVING ECOSYSTEM
SERVICE INDICATORS, 4 (World Research Institute Working Paper, 2009), available at
http://www.wri.org/publication/measuring-natures-benefits (compiling and assessing current
ecosystems services indicators in order to inform and advance efforts to inform policy-makers’
understanding of ecosystem services). But see FRANK ACKERMAN AND LISA HEINZERLING,
PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING (2004)
(emphasizing the limits of contingent valuation of natural resources) and James Salzman, Creating
Markets for Ecosystem Services: Notes From the Field, 80 N.Y.U. L. REV. 870, 872 (2005)
(identifying many obstacles to establishing markets and payment programs for ecosystem services
such as biodiversity protection).
185
See, e.g., Holly Doremus, Lesson Learned, in The Endangered Species Act at Thirty: Renewing
the Conservation Promise, Vol. 1 195, 20304 (Dale D. Goble et al. eds., 2006) (“Despite thirty
years of experience, what we don’t know about dwindling species and their protection could still
fill volumes.”).
186
Dolan v. City of Tigard, 512 U.S. 374, 38586 (1994) (emphasis added).
187
See Id. at 393 (“The city has never said why a public greenway, as opposed to a private one,
was required in the interest of flood control.”). On remand, however, even after the city no longer
was asking for a dedication of property but rather only an easement, an Oregon trial court
concluded that the city could not meet its burden under the “rough proportionality” test. The city
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Even where the benefits of a responsive action to development impacts are
accurately measureable, those benefits still may be far off in the future. One area
of contemporary concern where these quantification challenges are magnified
surrounds attempts to counter the delayed harms of coastal development as sea
levels inevitably rise. Plainly, the rate and timing of sea-level rise remain
uncertain.188 Therefore, the benefits of any measures taken today to counter its
effects are also uncertain. This uncertainty, however, does not reflect the absence
of long-term costs, or the lack of any need to take responsive action in the nearterm.189 To the contrary, it may suggest that at least for certain types of sea-level
rise impacts, exactions-for-the-future are quite prudent when compared to the
expected cost of reacting later.190 For example, preemptive individualized
setbacks on undeveloped properties could allow for future coastal wetland
migration at a fraction of the cost of removing approved development in the
future to facilitate such migration.191 For another, designing and funding coastal
ultimately forewent an appeal, instead agreeing to pay Dolan nearly $1.5 million for the relevant
strip of property as part of a settlement agreement. See, e.g., Randall T. Shephard, Takings Law:
Do We Really Want More Judicial Intervention in State Land Use Regulation?, 1 GEO. J.L. & PUB.
POL’Y 99, 102 n.22 (2002) (citing City of Tigard Will Pay Dolans $ 1.5 Million in Bikepath
“Takings” Case, BUS. WIRE, Nov. 21, 1997); Faus, supra note __, at 67677; Samuel H.
Weissbard & Camellia K. Schuk, Taking Issue with Taking by Regulation, COM. INVESTMENT
REAL ESTATE (Nov.–Dec. 1998), available at http://www.ccim.com/cire-magazine/articles/takingissue-taking-regulation; Dolan v. Tigard: Owner Gets $1.4 Million From City—at Last!, REALTOR
MAG., (July 1, 1998), available at http://www.realtor.org/archives/lawyoujul1998b.
188
See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SYNTHESIS
REPORT,
SUMMARY
FOR
POLICYMAKERS
7
(2007),
available
at
http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf (“Because understanding of
some important effects driving sea level rise is too limited, this report does not assess the
likelihood, nor provide a best estimate or an upper bound for sea level rise.”); JAMES G. TITUS,
U.S. ENVTL. PROT. AGENCY, COASTAL SENSITIVITY TO SEA-LEVEL RISE: A FOCUS ON THE MIDATLANTIC
REGION,
IMPLICATIONS
FOR
DECISIONS
141
(2009),
http://www.epa.gov/climatechange/effects/coastal/pdfs/ccsp_part3.pdf.
189
See Dana, supra note __, at 126884.
190
These anticipatory exactions could address the concern that, with increased storm surge due to
sea level rise, land previously not at risk of flooding previously will be in the future. See, e.g.,
CSA International, Inc., supra note __, at 24. See also COASTAL SENSITIVITY TO SEA-LEVEL RISE:
A FOCUS ON THE MID-ATLANTIC REGION, supra note __.
191
See, e.g., JON KUSSLER, ASSOCIATION OF STATE WETLAND MANAGERS, INC., COMMON
QUESTIONS: WETLAND RESTORATION, CREATION, AND ENHANCEMENT 15 (2006), available at
http://old.aswm.org/propub/20_restoration_6_26_06.pdf. There are some instances where the
economic impact of an exaction to a developer could be postponed until the relevant problem
arises in the future. See Titus, supra note __, at 1313 (discussing the concept of rolling
easements). Waiting until coastal land loss is imminent to establish setback requirements has
elicited concerns of significant (and constitutionally compensable) economic impacts to coastal
landowners, as evident in Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 (1992).
But the notion of a rolling easement, which imperceptibly “rolls” as sea levels rise, seemingly
raises fewer takings concerns. As one scholar states, “[R]olling easements would not deny all
productive use. Although productive use would eventually end if and when the sea level rises to a
particular elevation, the regulation itself does not prevent productive use when implemented.”
Titus, supra note __, at 1357. In other words, rolling easements allow the targeted activity to
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infrastructure in a manner that accounts for rising sea levels may be more cost
efficient than retrofitting such infrastructure at a later date.192
The demanding criterion of the exactions-for-the-future cases, in practice, allows
the imposition of exactions for only those burdens that are quantifiable in the
present or near term. Demanding that local governments on limited budgets pay
just compensation for the safety-inducing emergency connector right-of-way in
Burton and the traffic-reducing rights-of-way in Goss and Schultz necessarily
allows certain impacts of intensified land uses to go unmitigated.
C. Delineating Takings and Due Process Review
This section first explains that the U.S. Supreme Court’s exaction takings
decisions have long stood atop a jurisprudentially uncomfortable fence that
traditionally divides due process and takings analyses. It then recounts how the
Court recently sought to justify this rather peculiar exaction takings/due process
hybrid. Yet even making two weighty assumptions—(1) that exactions-for-thefuture are not per se takings, as discussed in the prior Part, and (2) the Supreme
continue, at least for a time. Id. at 1352. Imposition of a rolling easement is less likely a taking
than imposition of a setback requirement because the coastal landowner can continue to maintain a
structure on the property until that maintenance threatens elimination of the public’s flowed lands,
destruction of public infrastructure, or other detrimental public effects.
Regulatory actions regarding subsurface mining have produced a similar dichotomy. The
foundational, if cryptic, regulatory takings case of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922), involved Pennsylvania’s Kohler Act that prohibited mining activities when such activities
threatened homes with subsidence. The U.S. Supreme Court declared that the Kohler Act
immediately destroyed the subsurface estate held by the plaintiff, the Pennsylvania Coal
Company, which sat below residences at risk. See id. at 41216. Yet sixty years later the Court
found that Pennsylvania’s Bituminous Mine and Land Conservation Act—which also sought to
minimize the risk of subsidence by limiting the amount of coal that could be mined—did not
amount to a regulatory taking because mining could continue until subsidence became a threat.
See Keystone Bituminous Coal Ass’n v. DeBenedictus, 480 U.S. 470, 498501 (1987). That
some ability to mine remained proved material, though that ability grew only out of the
legislature’s preemptive approach to a public safety problem that would inevitably arise in the
future.
Amortization schemes provide another analogy. A municipal zoning scheme that phases out
nonconforming uses through a lengthy amortization period often has only a trivial impact on the
present economic value of private property. See Titus, supra note __, at 132223). Therefore,
such regulatory efforts are unlikely to require the payment of just compensation to affected
landowners when compared to the immediate removal of a non-conforming use. See, e.g., Oswalt
v. Cnty. of Ramsey, 371 N.W.2d 241, 246 (Minn. Ct. App. 1985) (declaring that a municipality
can phase out non-conforming uses over a reasonable period of time without paying
compensation).
192
See, e.g., James G. Titus et al., Greenhouse Effect, Sea Level Rise, and Coastal Drainage
Systems, 113 J. WATER RESOURCES PLAN. & MGMT. 216, 216227 (1987) (asserting that
retrofitting or rebuilding a drainage system can cost ten to twenty times as much as including
larger pipes in the initial construction).
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Court’s rationalization for the exaction takings/due process hybrid in the realm of
exactions is justifiable—this section asserts that those lower courts imputing an
immediacy criterion into exaction takings analyses have produced a rather
remarkable consequence: economic regulations taking the form of exactions-forthe-future are susceptible to invalidation in a manner akin to the judicial
dissolution of economic regulations in the now-discredited Lochner era.
i.
The Due Process Footing of Exaction Takings Jurisprudence
At the dawn of modern regulatory takings jurisprudence in Penn Central, the U.S.
Supreme Court suggested in dicta that substantive review of a regulation’s
validity might be appropriate in takings analyses.193 Two years later, in Agins v.
City of Tiburon,194 the Court drew on Penn Central’s dicta to declare that a land
use regulation restricting development density did not constitute a taking. 195 The
Court explained that its holding rested on the finding that the regulation at issue
“substantially advanced” the legitimate state interest of discouraging “premature
and unnecessary conversion of open-space to urban uses.”196 The Court asserted
that its “substantially advance” test derived from three prior momentous land use
cases involving not takings, but substantive due process challenges.197 Agins’
fusion of these two constitutional clauses produced the following result: the
judiciary could invalidate and enjoin state economic legislation on the basis that
the law does not “substantially advance a legitimate state interest,” without regard
to whether the challenged legislation diminishes the economic value or usefulness
of any property. This judicial power threatened a reinstitution of the intrusive,
late-nineteenth and early twentieth century review of economic regulatory efforts
through the backdoor of the Takings Clause.
After more than two decades of scholarly commentary describing Agins’s errant
mixture of due process and takings analyses,198 the Court finally—and
Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104, 127 (1978). (“[I]t is, of course,
implicit . . . that a use restriction on real property may constitute a ‘taking’ if not reasonably
necessary to the effectuation of a substantial public purpose . . . . ”).
194
Agins v. City of Tiburon, 447 U.S. 255 (1980).
195
See id. at 260–62.
196
Id. at 261.
197
Id. at 26162.
198
See, e.g., Michelman, supra note __, at 160514; Richard L. Settle, Regulatory Taking Doctrine
in Washington: Now You See It, Now You Don't, 12 U. PUGET SOUND L. REV. 339, 35152
(1989); John D. Echeverria & Sharon Dennis, The Takings Issue and the Due Process Clause: A
Way out of a Doctrinal Confusion, 17 VT. L. REV. 695 (1993); Glen E. Summers, Comment,
Private Property Without Lochner: Toward a Takings Jurisprudence Uncorrupted by Substantive
Due Process, 142 U. PA. L. REV. 837 (1993); Kenneth Bley, Substantive Due Process and Land
Use: the Alternative to a Takings Claim, in TAKINGS: LAND-DEVELOPMENT CONDITIONS AND
193
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unanimously—admitted its error.199 In the 2005 case of Lingle v. Chevron, the
Court explicitly abandoned the Agins test for regulatory takings purposes. The
decision disentangles at least some of the longstanding vagaries at the boundary
of due process and takings review in this way: Lingle largely eliminates
“substantial advancement” takings claims, relegating challenges to the merits of
governmental action to the judiciary’s substantive due process jurisprudence and
the attendant deferential rational basis review.200
Though the Court had not regularly cited to the “substantially advance” test after
Agins, the test did serve a principal role in both Nollan and Dolan.201 One might
REGULATORY TAKINGS AFTER DOLAN AND LUCAS 289, 291 (David L. Callies ed., 1996); John D.
Echeverria, Does a Regulation That Fails to Advance a Legitimate Governmental Interest Result
in a Regulatory Taking?, 29 ENVTL. L. 853 (1999); Jerold Kayden, Land-Use Regulations,
Rationality, and Judicial Review: The RSVP in the Nollan Invitation, 23 URB. LAW. 301 (1991);
Kenneth Salzberg, “Takings” as Due Process, or Due Process as “Takings”?, 36 VAL. U. L. REV.
413 (2002); Ronald J. Krotoszynski, Jr., Expropriatory Intent: Defining The Proper Boundaries of
Substantive Due Process and the Takings Clause, 80 N.C. L. REV. 713 (2002); D. Benjamin
Barros, The Police Power and the Takings Clause, 58 U. MIAMI L. REV. 471 (2004). Justice
Kennedy had, a decade before Lingle, suggested the same. Eastern Enterprises v. Apfel, 524 U.S.
498, 546 (1998) (Kennedy, J., concurring in judgment and dissenting in part) (suggesting that in
instances where “the legitimacy of Congress’ judgment rather than on the availability of
compensation, the more appropriate constitutional analysis arises under general due process
principles rather than under the Takings Clause. … [The Court should] “reserv[e] takings analysis
for cases where the governmental action is otherwise permissible.”). See also id. (Breyer, J.,
dissenting) (“at the heart of the [Takings] Clause lies a concern, not with preventing arbitrary or
unfair government action, but with providing compensation for legitimate government action that
takes ‘private property’ to serve the ‘public’ good. … [There is] no need to torture the Takings
Clause [to house claims of arbitrariness that have a] “natural home in the Due Process Clause…”).
199
At oral argument, Justice Scalia suggested the court was going to have to “eat crow” in
rejecting the twenty-five year-old Agins test. See Transcript of Oral Argument at 21, Lingle v.
Chevron U.S.A., Inc., 544 U.S. 528 (2005) (No. 04-163). Justice O’Connor’s opinion for the
unanimous Court opened, “On occasion, a would-be doctrinal rule or test [here, the “substantially
advance” test] finds its way into our case law through simply repetition of a phrase – however
fortuitously coined.” Lingle, 544 U.S. at 531. The decision concludes, “Twenty-five years ago,
the Court posited that a regulation of private property "effects a taking if [it] does not substantially
advance [a] legitimate state interest." The lower courts in this case took that statement to its logical
conclusion, and in so doing, revealed its imprecision. Today we correct course.” Id. at 548
(internal citations omitted).
200
Of course, takings must be for a “public use” in accord with the text of the Fifth Amendment.
However, the court’s “public use” inquiries are quite narrow. See infra notes __ and
accompanying text. The differences between the Takings Clause’s public use requirement and the
traditional substantive due process inquiry of whether a government action is rationally related to
advance a legitimate state interest have provided fodder for an interesting academic discussion.
See, e.g., _______. For purposes herein, suffice it to say that the refuted “substantial
advancement” language of Agins is markedly stricter than the substantive due process rational
basis review.
201
Nollan stated that the government’s access corridor condition “utterly failed to further the end
advanced as the justification for the prohibition.” Nollan v. Cal. Coastal Comm’n, 483 U.S. 825,
837 (1987). Likewise, Dolan asserted, “A land use regulation does not effect a taking if it
‘substantially advances legitimate state interests’ and does not ‘deny an owner economically
viable use of his land.’” Dolan v. City of Tigard, 512 U.S. 374, 385 (1994). There was no claim
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imagine, therefore, that Lingle necessitated the Court’s overruling Nollan and
Dolan, as well. However, Lingle, if cryptically, largely left the Court’s exactions
takings jurisprudence intact. The Lingle Court suggested that the Nollan and
Dolan tests are “worlds apart” from the Agins test.202 The Court’s attempt to
distinguish the Nollan and Dolan tests from the Agins test rested on the fact that
the latter assessed whether some state interest is substantially advanced by a given
regulation, while the former two assess only whether the proffered exaction
substantially advances the same public interest that is threatened by the proposed
development project.203
ii.
Due Process and Exactions-for-the-Future
The import of the Court’s distinguishing between “some” and “same” is
debatable, for both inquiries presumably require scrutinizing the means and ends
of a legislative decision beyond the traditional deference afforded to legislative
acts under longstanding substantive due process jurisprudence.204 Yet even
assuming that this is an appropriate distinction that supports the Lingle Court’s
preservation of Nollan and Dolan, the exactions-for-the-future takings findings
cannot be similarly justified.
Take the Burton v. Clark County example described in Part III. Same-ness was
not at issue. The question of interest to the court was whether the requested rightof-way would serve any (i.e., some) state interest at all. The court ultimately
answered this question in the negative, concluding that the uncertainty
surrounding the development of those parcels adjacent to Plaintiff’s proposed
in Nollan or Dolan that the development condition at issue denied the property owner all
economically viable use of her land; indeed, no evidence was presented of any economic impact at
all.
202
See Lingle, 544 U.S. at 545–48.
203
See Lingle, at 547 (“In neither [Nollan or Dolan] did the Court question whether the exaction
would substantially advance some legitimate state interest. Rather, the issue was whether the
exactions substantially advanced the same interests that land-use authorities asserted would allow
them to deny the permit altogether.”) (internal citations omitted). In an amicus brief filed in
support of the State of Hawaii, the Solicitor General of the United States pressed this very
distinction. See Solicitor General Brief, Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) (No.
04-163),
available
at
http://supreme.lp.findlaw.com/supreme_court/briefs/04-163/04163.mer.ami.usa.html (“Because the governmental bodies in Nollan and Dolan sought to use the
landowners' planned development activities to justify uncompensated exactions that would
otherwise have violated the Constitution, the Court required a heightened showing, not simply that
the permit conditions would advance some state interest, but that they would alleviate germane
problems, i.e., problems caused by the permitted development activities themselves.”).
204
Timothy M. Mulvaney, The Remnants of Exaction Takings, 33 ENVIRONS ENVTL. L. & POL'Y J.
189, 213 n.141 (2010). One commentator pondered whether the preservation of Nollan and Dolan
in Lingle was a “force[d]…distinction.” See, e.g., Sarah B. Nelson, Case Comment: Lingle v.
Chevron U.S.A., Inc., 30 HARV. ENVTL. L. REV. 281, 290 (2006).
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subdivision rendered the demanded exaction too speculative in nature.205 The
Court suggested that it “need not reach” Burton’s substantive due process claim
because the “takings claim is dispositive.”206 But it is difficult to understand how
an exaction could survive rational basis review, as required by the Due Process
Clause, where that exaction did not withstand the significantly more probing
“substantially advance” test of its merit.207 This assumes, however, that the
Burton court believes rational basis review is indeed an appropriate standard for
assessing the validity of government’s proposed solutions to perceived public
problems. And, indeed, this assumption may be incorrect. The court stated, “In
passing, we observe that the ideas inherent in the federal Takings Clause may be
the same as those … that determine whether a regulation violates substantive due
process.”208 On the “propriety of substantive due process” review, the court
remarkably and unapologetically cited only to (1) a vague statement in a U.S.
Supreme Court plurality opinion with which five Justices did not concur, and (2)
Lochner itself.209
D. Visions of Property
While this entire draft is an early work-in-progress, this particular section will be
completely restructured and revised. For the most up-to-date version of this
section, or to provide suggestions, please contact the author at
tmulvaney@law.txwes.edu.
205
Burton v. Clark County, 958 P.2d 343, 35657(1998).
Id. at 357.
207
Id.
208
Id.
209
Id. (“Regarding the propriety of substantive due process as an overall concept, see Eastern
Enter., 524 U.S. at ---, 118 S. Ct. at 2153 (section IV-D of plurality opinion); Lochner v. New
York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905).”). In Eastern Enterprises, the Justices
addressed a constitutional claim against a federal law requiring coal operators to pay premiums
toward pension plans based upon the number of miners whom they had previously employed.
While five Justices found the legislation at issue unconstitutional, they did not agree on a
rationale. A plurality opinion asserting that any law that retroactively creates unanticipated and
nonconsensual monetary liability does not implicate the Due Process Clause but rather takes
“property” in violation of the Takings Clause. Justice Kennedy, concurring in the result, declared
the legislation violative of only the Due Process Clause. The divided opinion raised the question
of whether a concurrence in part and dissent in part by Justice Kennedy on due process grounds,
coupled with a four-Justice dissent also on due process grounds, resulted in a precedential
rejection of the takings theory cited by a four-Justice plurality. See, e.g., Commonwealth Edison
Co. v. United States, 271 F.3d 1327, 133940 (Fed. Cir. 2001) (“[F]ive justices of the Supreme
Court in Eastern Enterprises agreed that regulatory actions requiring the payment of money are
not takings. . . . [W]e are obligated to follow the views of that majority.”); John D. Echeverria,
Lingle, Etc.: The U.S. Supreme Court’s 2005 Takings Trilogy, 35 ENVTL. L. REP. 10,577, 10,583
n.52 (2005) (“[A] majority of the Court (Justice Kennedy and the four dissenters) indicated that a
monetary assessment should not be viewed as falling within the scope of the Takings Clause.”).
206
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It is a common error to begin discussion of differing visions of property, and the
constitutional limits on land related laws in particular, with the U.S. Supreme
Court’s 1922 opinion in Pennsylvania Coal Co. v. Mahon. Indeed, significant
public land use controls were prevalent at America’s dawn. And not all early land
use controls were negative; many imposed affirmative duties on property owners.
Eric Freyfogle asserts that, for the drafters of the Declaration of Independence, “it
was collective liberty that was the primary issue of the day…the power of the
colonists as a people to govern themselves without interference [from the
outside], not the rights of individuals to resist constraint.”210
A vision of property limitations steeped only in a narrow set of common law
principles did not arise until the nineteenth century, when “America’s insatiable
desires to develop the continent, expand markets, widen choices and multiply the
nation’s wealth” prompted a narrower conception of land use controls.211
Landowners started envisioning industrial, intensified land uses, which would
require a property regime that defined a landowner’s rights and obligations in a
way that allowed activities that instilled harm on others.212 In turn, the judiciary
began to favor not the community-centered, agrarian society of the colonial days
but the rise of industrial development. This judicial shift set the stage for a probusiness theory of property; from this perspective, property was no longer
considered a product of the state, but a natural, abstract right free of communal
obligations.213
It was this individualistic perception that took center stage in Pennsylvania Coal
Co. v. Mahon, and continues in the modern day to fuel regulatory and exaction
taking claims demanding that “the community … compensate landowners
whenever it ask[s] them to halt community-harming activities.”214 In Mahon, the
Pennsylvania Coal Company contested a statute that prohibited the mining of
subsurface coal if it spoiled the stability of the overlying land. 215 Writing for the
Id. at 59. See also WILLIAM J. NOVAK, THE PEOPLE’S WELFARE: LAW AND REGULATION IN
19TH CENTURY AMERICA 11 (1996) (“[L]iberty was never absolute, it always had to conform to
the superior power of self-governing communities to legislate and regulate in the public interest.”);
Anderson, Commodity and Propriety, 29 (asserting that the central dilemma of America politics of
the day was not “the protection of individual freedoms against collective action but rather, the
protection of the public rights of the people against aristocratic privileges and power”).
211
FREYFOGLE, supra note __, at __.
212
Id. at 70.
213
Id. at 81.
214
Id. at 84. See Singer & Beerman, supra note __, at 218 (suggesting that the U.S. Supreme
Court’s takings jurisprudence of the 1980s and 1990s disregards the issue of unfair distributions of
social obligations as defined by difficult value judgments in favor of a more naturalized and
formalized conception of property based on the individual Justices’ intuition and “biased by preexisting common law definitions”).
215
Pa. Coal Co. v. Mahon, 260 U.S. 393, 412 (1922).
210
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Court in Mahon, Justice Holmes first declared that government “could hardly go
on” if it had to pay for every modification that negatively impacts the value of
certain properties.216 Of course, however, the opinion is most commonly cited for
distinguishing ordinary regulations from those that go “too far.”217 The Court’s
conclusion that the statute at issue did implicate this “test,” whereby the
government must provide compensation, can only stem from the then-prevailing
individualistic vision of private property: in assessing the statute’s effect, the
Court started from the baseline that the coal company had the right to do as it
wished.
Clashes between land use controls and an alleged absolute, essential right to build
became particularly contentious when, beginning in earnest in the 1950s, the
ecological degradation and public health effects associated with industrial and
other intensified land uses came into focus. And slowly, common law courts
began to sympathize with landowners harmed by the land uses of their fellow
community members.218 But, still, many courts saw the legislature as best
equipped to address comprehensive environmental and social problems. This
produced at least two effects. First, political stalemate in the legislature would
lead to continued ecological degradation and social ills in the face of judicial
inaction. Second, and more importantly, property owners could point to the
outdated common law as the baseline of the vested rights in challenging
legislation that affected those alleged rights.219
In Lucas v. South Carolina Coastal Council in 1992,220 and Dolan soon thereafter
in 1994, the U.S. Supreme Court would address high-profile clashes between (A)
the industry-promoting vision of property that had first gained prominence in the
nineteenth century and (B) a re-developing vision of the collective interest as a
protected public component of the institution of property.
In Lucas, the U.S. Supreme Court declared that just compensation is categorically
required where such laws deny a property owner all economically viable use of
216
Id. at 413
Id. at 415.
218
Waschak v. Moffat, 109 A.2d 310, 31824 (Musmanno, J., dissenting); Just v. Marinette Cnty.,
201 N.W.2d 761 (Wis. 1972) (upholding ordinance prohibiting the filling of wetlands, for it would
“prevent a harm from the change in [the property’s] natural character”), Prah v. Maretti, 321
N.W.2d 182, 188 (1982) (asserting that the reasons for rejecting the common law “ancient lights”
doctrine in the nineteenth century—including allowing relatively unhindered private
development—were no longer applicable in an age of increasing land use regulation and the social
priority on developing alternative energy sources, such that a landowner had standing to challenge
her neighbor’s development that would block the sunlight that otherwise would reach her solar
panels).
219
Id. at 96.
220
505 U.S. 1003 (1992).
217
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her property.221 But it is by now well-documented that the Court’s opinion in
Lucas had ramifications well beyond, and arguably much more significant than,
its creation of this narrow categorical rule demanding compensation for total
economic takings. That is, Lucas’s per se test is subject to one important caveat:
regulations merely re-stating “background principles,” such as those emanating
from state law, are immune from takings liability.222
In fashioning this caveat, the five-Justice majority in Lucas explicitly favored old
rules to new rules, and common law rules to regulation.223 And in the eyes of
those Justices, regulation is always new (and thus may very well implicate the
Takings Clause) if it does not directly mirror what nuisance law or some other
common law doctrine already implicitly commanded.224 But the decision
reflected a vision of property as defined only by the common law of the
nineteenth century. It was as if the early common law intact at the time of the
drafting of the Declaration of Independence and the U.S Constitution, as well as
almost two centuries of state and federal legislative acts that override the common
law, had no impact on the meaning of land ownership.225
Dolan continued this trend. Dolan, in essence, presents a cause-and-effect test
that prohibits any governmental effort that potentially might redistribute some of
the landowner’s economic wealth to the public. Taken to its logical end, because
all government actions affect the status quo distribution of wealth, a broad
application of this cause-and-effect test could threaten every form of government
221
In other words, where a regulation deprives a property owner of all economic value of her
property, takings liability is automatic, i.e. the Penn Central balancing test pertinent in most
regulatory takings disputes is inapplicable.
222
In the twenty years since Lucas, many lower courts have rejected claims challenging
governmental regulations as working unconstitutional takings in light of the “background
principles” defense. Michael C. Blumm & J.B. Ruhl, Background Principles, Takings, and
Libertarian Property: A Reply to Professor Huffman, 37 ECOLOGY L. Q. 805 (2010). Therefore,
whether the regulation at issue reflects a “background principle” now serves as a threshold inquiry
in every takings case.
223
Lucas, 505 U.S. at 101516 (“Any limitation so severe cannot be newly legislated or decreed
(without compensation), but must inhere in the title itself, in the restrictions that background
principles of the State’s law of property and nuisance already place upon land ownership. A law or
decree with such an effect must . . . do no more than duplicate the result that could have been
achieved in the courts . . . under the State’s law of . . . nuisance, . . . or otherwise.”). As I discuss
below, any good will respecting a state’s development of its common law exhibited by the Justices
in the Lucas majority arguably has been significantly constrained by an opinion recently signed by
several of those same Justices in Stop the Beach Renourishment.
224
This despite the fact that, as detailed above, “colonial governments regulated land use
extensively for purposes other than preventing harm.” Hart, Colonial Land Use Law, supra note
__, at 1253, 1257 (“Contrary to the conventional image of minimal land use regulation,
government in the colonial period often exerted extensive authority.”)
225
See Byrne, supra note __, at __; FREYFOGLE, supra note __, at 261 (“Private property is a
creature of the law…it is the sum total of all applicable laws, not merely a subset of them, that
shapes it.”).
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services because government benefits reaped by one individual or group almost
necessarily impose costs on another individual or group.226
The U.S. Supreme Court’s exaction takings decisions have not, however, resulted
in a wholesale dissolution of a broad swath of economic regulations. Still, as
noted in the previous section,227 they have placed significant, Lochner-like
constraints on the amount the government can “charge” for a specific
“government benefit:” permission to intensify land uses.228 This constraint
arguably is due in large part to the view of the Nollan and Dolan majorities that
the right to intensify the use of real property is not actually a government benefit
at all. Instead, it appears that, according to the Court, the ability to build is an
essential, inherent right protected by the Constitution. The underlying premise of
the U.S. Supreme Court’s exactions takings jurisprudence, then, is rather
straightforward: When stripped to its core, the public is only permitted to offset
what the landowner, upon construction, seizes for himself through the imposition
of public harms. Under this view, since the right to build already is in the owner’s
possession, the owner cannot be asked to pay anything for it.
The exactions-for-the-future decisions that impute an immediacy criteria into
exaction takings law go well beyond echoing Nollan and Dolan’s claim that a
landowners’ right to build is an essential component of constitutionally protected
property. However, Nollan and Dolan at least allow the public, in theory, to
offset the external harms attributable to the exercise of that right. Burton, Goss,
Schultz, and like decisions supplement that right to build with a right to commit or
contribute to future public harms.
…..
V. CONCLUSION
This article has sought to highlight the increasing propensity for exactions to take
aim at development impacts that are not going to result immediately or in the near
term, but rather those impacts that are anticipated to occur at some point further
off into the future. It suggests that, because of the delay between the imposition
of these exactions-for-the-future and their curative effects, some courts are
finding them less constitutionally palatable for Takings Clause purposes than
See, e.g., McUsic, supra note __, at 647 (“Residents of a wealthy neighborhood, for example,
could conceivably demand compensation from the city if they can show that a city-sponsored
housing project for low-income people lowered their property values, and that they did not cause
the project’s inhabitants to be poor.”).
227
See infra notes __ and accompanying text.
228
McUsic, supra note __, at 652 (“The government can never sell this benefit, the right to build,
for a price greater than the harm caused by the owner’s proposed development.”).
226
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exactions that respond to immediate or near term public harms. I assert that this
line of decisions reflects four important themes.
First, judicial predisposition against exactions-for-the-future exposes a
fundamental tension with the general emphasis on long-term planning in land use
law. Second, the vitality of some jurisdictions’ apparent requirement that
exactions bear immediate fruit arguably is equivalent to a per se rule against using
exactions to counter a broad collection of public harms that pose quantification
difficulties. Third, requiring in the course of a takings analysis that exactions
demonstrate an imminent or near-term response to a public problem perpetuates
the longstanding vagaries at the boundaries of takings and due process review.
Fourth, imputing an immediacy criterion into exaction takings review signals a
theoretical vision of private property that fortifies the already strong barrier
between individual interests and permissible government action that has been
erected in modern takings jurisprudence.
Each of the noted themes arguably provides jurisprudential, theoretical, and
normative justification for eschewing any distinction between exactions-for-thefuture and more traditional exactions; indeed, they may lend support for the claim
that exactions in general should be treated no differently for takings purposes than
other regulatory acts. However, to the extent that, in select jurisdictions,
exactions-for-the-future will be looked at with disdain in the context of
landowners’ takings suits, the next-best alternatives for local governments will
need to be considered.
For a sampling of potential alternatives that could serve as fodder for future
scholarship, I return to the matter of Burton v. Clark County, first taken up in Part
III above.229 In Burton, the County conditioned a subdivision approval on the
developer’s conferral of a right-of-way for an emergency connector road in the
event that—as anticipated by emerging development patterns—similar
subdivisions arose on adjacent lands in the future.230 An appellate panel held this
constituted an exaction taking because, since the planned road and adjacent
development might never be constructed, the right-of-way could amount to what
the court called a “road to nowhere.”231
In light of this result, municipalities might consider conditioning development
permits not on a dedication or easement, but rather on an option for an easement.
In Burton, the developer sought to construct a built-out residential cul-de-sac that
necessarily would be infeasible were he to retain vacant land for the County’s
229
230
231
See infra notes __ and accompanying text.
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later potential exercise of its option. Therefore, if the developer were to continue
with the cul-de-sac project, the County might retain the option of demanding the
easement if and when the connector road becomes a necessity. At that point, the
developer would be charged with buying out the property owner, presumably
based on a formula to which the property owner previously consented at the time
of purchase. This alternative may encourage the developer to limit the use of that
end-lot for rental purposes only from the beginning, for selling the property with
such an option attached could (A) be difficult, and (B) lead to complicated
valuation problems should that new owner make significant improvements to the
land prior to the County’s exercise of the option. Still, however, the developer
would reap some economic return, which likely is preferred to the more draconian
response that municipalities presumably have the discretion, if not always the
political will, to take: denial of the subdivision approval outright. This
abbreviated summary of alternatives conceivably available in Burton presents a
springboard for future scholarship aimed at fashioning creative exactions that are
responsive to future development harms and simultaneously able to survive
takings scrutiny.
When all was said and done in Burton, the County may have taken some solace in
the events that unfolded following Burton’s takings victory. Following the
Washington Supreme Court’s denial of the County’s petition for certiorari, the
County purchased the end lot of Burton’s proposed cul-de-sac for near market
value.232 As the County had expected, the adjacent lands were soon developed for
residential use, and the once projected need for connectivity became starkly
real.233 Yet, at least for takings purposes, it is of little import that the
government’s plan proved prescient in this particular case; indeed, there are other
instances where comprehensive land use plans arguably have erred.234 For
purposes of takings law, it is the front-end deference accorded to municipalities—
or, in the exactions-for-the-future context in cases like Burton, the lack thereof—
that will shape the role of land use planning, and the concomitant line between
alleged constitutionally-protected private development interests and anticipated
public harms, moving forward.
232
Conversation with Clark County Prosecuting Attorney Christopher Horne, August 21, 2010.
Id.
234
See, e.g., Patrick McGeehan, Pfizer to Leave City that Won Land-Use Case, N.Y. TIMES, Nov.
13, 2009, at A1, available at http://www.nytimes.com/2009/11/13/nyregion/13pfizer.html.
233