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- Title
EXTENDING REGULATORY TAKINGS THEORY BY APPLYING CONSTITUTIONAL DOCTRINE AND ELEVATING TAKINGS PRECEDENTS TO JUSTIFY HIGHER STANDARDS OF REVIEW IN KOONTZ.
- Authors
Holloway, James E.; Guy, Donald C.
- Abstract
The Roberts Court decided a regulatory takings issue involving an impact fee or conditional demand that required real estate developers to pay a fee or spend money to make offsite improvements in order to receive a development permit. Almost three decades ago, a similar issue that required the landowner to grant an interest in land had been at the center of the Rehnquist Court's efforts to give greater protection to the right to receive just compensation. The Rehnquist Court gave more protection to private property rights by applying the unconstitutional conditions doctrine to justify heightened scrutiny of conditional demands. In Dolan v. City of Tigard, the Rehnquist Court reviewed land dedication conditions that required a landowner to grant the government a right-of-way or use of the land to receive a land use permit, such as a building permit. The Roberts Court faced a similar issue and followed the Rehnquist Court in Koontz v. St. Johns River Water Management District. The Roberts Court used lesser precedents that dealt with financial obligations and economic regulations to establish a constitutional framework to limit conditional demands imposing financial obligations to spend money. In Koontz, the government demanded a mitigation or impact fee that required the landowner to pay money or a fee to make offsite improvements. The Roberts Court follows the path of the Rehnquist Court by giving greater protection to the right to receive just compensation through imposing heightened scrutiny on some conditional demands and per se test on others.
- Subjects
REAL property; KOONTZ v. St. Johns River Water Management District; DOLAN v. City of Tigard (Supreme Court case); LUCAS v. South Carolina Coastal Council; PENNSYLVANIA Coal Co. v. Mahon (Supreme Court case)
- Publication
Widener Law Review, 2016, Vol 22, Issue 1, p33
- ISSN
1933-5555
- Publication type
Article