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Failed Exactions, Mark Fenster
Failed Exactions, Mark Fenster
UF Law Faculty Publications
This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand …
The Stubborn Incoherence Of Regulatory Takings, Mark Fenster
The Stubborn Incoherence Of Regulatory Takings, Mark Fenster
UF Law Faculty Publications
The Supreme Court's unanimous decision in Lingle v. Chevron U.S.A., Inc. was met with restrained but largely appreciative notice by commentators. Lingle declared that the Takings Clause affirmatively protects property owners by awarding them compensation for regulations that impose the functional equivalent of a condemnation of their property. The regulatory takings doctrine thus differs from the substantive due process doctrine, which instead reviews the validity of a regulation and offers as its remedy the invalidation of an offending government action. Clearing the underbrush that had grown in nearly a century of Supreme Court precedent, the Court appeared to have made …