Also known as: regulatory exaction · exactions
Written by attorneys — see sources below.
A condition attached to a land-use permit that requires a property owner to convey an interest in land or pay a sum of money to the government. The condition constitutes a taking unless it satisfies an essential nexus to a legitimate governmental interest that would justify denial of the permit and is roughly proportional to the impacts of the proposed development.
Roger Ramirez sought a permit to construct a secure research facility on coastal property. The permitting authority approved the permit only if Roger granted a public trail easement along the bluff. The easement bore no connection to any access problems created by the facility itself. Because the demanded interest lacked an essential nexus to project impacts, the condition operated as an unconstitutional regulatory exaction.
Riverstone Manufacturing applied to expand its plant and offered to pay impact fees calibrated to traffic increases. The city refused the permit unless the company paid a much larger sum for unrelated park improvements. When the company declined, the city denied the permit. The refusal triggered scrutiny under the exactions doctrine because the monetary demand lacked the required nexus and proportionality.
Roland Rhodes owned two beachfront lots rendered unusable by a coastal regulation. The agency offered to issue a permit only if Roland conveyed a permanent public access easement across both parcels. The demand would have eliminated all economic use of the land. The condition therefore functioned as a regulatory exaction that effected a total taking.
Rachel Ramirez sought approval to enlarge a retail store. The city conditioned the permit on dedication of a strip for a public bike path far larger than any traffic increase the expansion would generate. No individualized findings linked the path's scope to the project's actual burdens. The oversized dedication operated as a regulatory exaction violating rough proportionality.
Petitioner Florence Dolan owns a plumbing and electric supply store located on a 1.67-acre parcel of land in the business district of the city of Tigard, Oregon. The store is on a parcel that includes a 9,700-square-foot building, and Fanno Creek flows through the southwestern corner of the lot within the 100-year floodplain. In the early 1970's, the city developed a comprehensive plan for managing surface water drainage in the Fanno Basin serving the area where the property is located. The comprehensive plan also contained provisions for a pedestrian and bicycle pathway system throughout the city, one of which was to follow along Fanno Creek. In 1988, petitioner applied for a permit to expand her store and pave the parking lot. The city planning commission granted the permit but required petitioner to dedicate a portion of her property for the construction of a public greenway along Fanno Creek and an additional 15-foot strip of land adjacent to the greenway for a pedestrian and bicycle pathway. The dedication required encompasses approximately 7,000 square feet, or roughly 10% of the property. Petitioner requested a variance from the city's dedication requirements. The planning commission denied the variance, and the city council affirmed the denial. Petitioner then filed suit in Oregon state court claiming an uncompensated taking. The Oregon trial court upheld the city's requirements. The Oregon Court of Appeals affirmed, as did the Oregon Supreme Court. The United States Supreme Court granted certiorari. The question presented was what standard of review applies to a claim that a city's exaction of a dedication of private property as a condition of a building permit constitutes an uncompensated taking of property in violation of the Fifth Amendment.
Roberto Reyes challenged a county requirement that he dedicate wetlands as a condition of a marina permit. Environmental groups intervened to defend the condition. The court examined whether the groups had standing to assert that the exaction mitigated project impacts. The dispute turned on whether the regulatory exaction satisfied constitutional standards.
Regina Robinson refused to purchase required insurance and faced an annual monetary charge collected through her tax return. She argued the charge was an unconstitutional regulatory exaction rather than a tax. The court analyzed whether the payment operated as a tax or as a penalty tied to conduct. Classification determined whether the exaction fell within Congress's taxing power.
A regulatory exaction is constitutional only if it satisfies an essential nexus between the demanded interest and a legitimate governmental interest that would justify outright denial of the permit. The exaction must also be roughly proportional in nature and extent to the projected impacts of the proposed development. The government bears the burden of making individualized findings to establish proportionality.
…law frequently looked to the generality of a regulation of property. For example, in the case of so-called "developmental exactions," we have paid special attention to the risk that particular landowners might "b[e] singled out to bear the burden" of a broader problem not of his own making. Nollan , 483 U. S., at 835,…
…passage is even less than the intrusion resulting from the required dedication of a sidewalk in front of private residences, exactions which are commonplace conditions on approval of development. Furthermore, the high-tide line shifts throughout the year, moving up to and beyond the seawall, so that public passage…
…petitioner's property for public use. The fact that the city characterizes the required dedications as "conditions" rather than "exactions" does not change the analysis. The city's requirements are designed to mitigate the impacts of the proposed development, and they must satisfy the "essential nexus" test. The city has not…
…to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions
…v. Rawlins , 662 P. 2d 888, 901-904 (Wyo. 1983) (holding that a fee to enhance parks, imposed as a permit condition, was a regulatory exaction), with Home Builders Assn. v. West Des Moines , 644 N. W. 2d 339, 350 (Iowa 2002) (rejecting Coulter and holding that a nearly identical fee was a tax). Nor does the majority's…
Yes. The standards govern demands for money as well as dedications of real property. A government's refusal to issue a permit because the applicant rejects a monetary condition that lacks the required nexus or proportionality constitutes a taking subject to exactions scrutiny.
A permit condition becomes an unconstitutional regulatory exaction when it requires conveyance of a property interest or payment of money without an essential nexus to project impacts or without rough proportionality to those impacts. Generalized public benefits or blanket policies do not satisfy the nexus requirement.
The government bears the burden of showing that the nature and extent of the exaction are roughly proportional to the projected impact of the proposed development. The property owner need not disprove proportionality.