Real Estate & Property Law

New Article On Legislative-Adjudicative Distinction In Nollan/Dolan Analysis

By Robert Thomas (inversecondemnation.com)

Heads up on a new article of interest to those of us who deal with exactions and Nollan/Dolan: Matthew Baker, Much Ado About Nollan/Dolan: The Comparative Nature of the Legislative Adjudication Distinctions in Exactions, 42 Urban Lawyer 171 (2010). Here's a summary: 

Much has been made, by both commentators and courts, of the distinction between legislative and adjudicative land use exactions used to determine whether an exaction must meet the "essential nexus" requirement of Nollan v. California Coastal Commission and the "rough proportionality" test of Dolan v. City of Tigard. But practical application of the distinction has been anything but simple, only adding to the "mess" and "muddle" of Takings Clause jurisprudence. While exactions jurisprudence is admittedly messy, the apparent analytical incoherence results primarily from the confused and inconsistent application of the Nollan/Dolan test by lower courts, which would no doubt prefer a more clear and predictable standard of review. Part I of this article briefly describes the Nollan/Dolan analysis and the legislative-adjudicative distinction set forth in Dolan. Part II discusses the divergent approaches to the distinction among the lower courts and outlines the major academic criticisms of the legislative-adjudicative distinction, including several alternative standards. Part III then argues that the legislative-adjudicative distinction is essentially a functional, comparative inquiry into whether the burden imposed by the exaction to achieve a public benefit is being broadly shouldered by the community, or unfairly shouldered by a small group within the community. As a threshold inquiry, the distinction seeks to preserve a measured deference to government in the exactions context. Part III also briefly states the theoretical basis for a comparative analysis of exactions.

The article is available here (may require ABA membership). The article is the winner of the 26th Smith-Babcock-Williams Student Writing Competition.

Full post as published by inversecondemnation on July 12, 2010 (boomark / email).