Hastings Law Journal


Mark Fenster


In a refreshingly clear and comprehensive decision, the Supreme Court explained in Lingle v. Chevron that the Takings Clause requires compensation only for the effects of a regulation on an individual's property rights. Under the substantive due process doctrine, by contrast, courts engage in a differential inquiry into both a regulation's validity and the means by which the regulation attempts to meet the government's objective. Lingle's explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission and Dolan v. City of Tigard, two regulatory takings decisions that reviewed "exactions," regulatory conditions placed on proposals to develop land. These decisions required courts to review not only a challenged condition's effects but also its validity and means, through their "nexus" and "proportionality" tests. In Lingle, the Court characterized its exactions decisions narrowly, as a limited effort to protect owners from extortionate measures. Lingle explained that the Court's rigorous tests for exactions, and their focus on regulatory means, apply only when an exaction's effects constitute a clear taking of property.

This Article attempts to resolve important matters left open for debate by Lingle's description of the Court's exactions jurisprudence. First, Lingle's narrow characterization of the exactions decisions is not dicta, because Lingle aimed to provide a comprehensive, unifying explication of the Court's takings jurisprudence. Furthermore, when read as Lingle requi;-es, Nollan and Dolan fit within the broader, institutionalist approach to the Takings Clause that the Court articulated in Lingle and its other Takings Clause decisions for the 2004 term, San Remo Hotel v. City and County of San Francisco and Kelo v. City of New London. Within this institutionalist framework, Nollan and Dolan can be read narrowly because judicial enforcement of the federal constitution is merely one institutional check among a web of public and private institutions that constrain local regulatory discretion. Thus, the powerful constitutional protection that "nexus" and "proportionality" provide may be limited. But, in their shadow, public and private actors at the state and local levels offer a more complex, responsive, and locally sensitive web of legal, political, and market controls than do the formal rules established in Nollan and Dolan.

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