Order for the Courts: Reforming the Nollan/Dolan Threshold Inquiry for Exactions

Authors

Winfield B. Martin

Abstract

For decades prior to 2005, Fifth Amendment regulatory takings jurisprudence languished in a state of confused neglect. Rather than articulating a clearly discernable standard for determining whether a violation of the Takings Clause had occurred, Justices rebuffed government action that seemed to amount to “an out-and-out plan of extortion” and nodded in approval when they deemed the government to have “acted diligently and in good faith” or in furtherance of a “compelling interest.” In trying to parse this imprecise thicket, scholars have characterized the Court’s approach to regulatory takings as a “muddle,” in “disarray,” and “incoherent.” Professor Kent even noted that it is “now axiomatic” that this period of regulatory takings jurisprudence is considered a “constitutional quagmire.” This Comment argues that the Court’s recalibrated view of Nollan and Dolan as applications of the doctrine of unconstitutional conditions suggests that nexus and proportionality standards should be applied to both legislatively and adjudicatively imposed exactions. Part II discusses the pre-Lingle state of exactions analysis and the debate regarding the appropriate level of scrutiny to apply to different types of exactions. Part III reviews the Lingle decision itself and its determination that Nollan and Dolan are based upon the doctrine of unconstitutional conditions. Part IV proposes a balancing test to resolve the difficult threshold inquiry of whether an exaction should be examined under heightened scrutiny. Part V revisits the Ninth Circuit’s holding in McClung v. City of Sumner that legislative exactions are outside of the Nollan/Dolan framework, applying the balancing test in lieu of a formalistic determination.

Recommended Citation

Winfield B. Martin, Order for the Courts: Reforming the Nollan/Dolan Threshold Inquiry for Exactions, 35 SEATTLE U. L. REV. 1499 (2012).