Recent takings cases challenging inclusionary housing ordinances tap into an ongoing controversy about whether government interventions in the housing market do more harm than good; but they also raise much more general questions about takings law. This Article uses the controversy raised by recent housing cases to probe the relationship between the Supreme Court’s regulatory takings jurisprudence and its exaction takings jurisprudence and to suggest a more coherent approach to implicit takings. The Court’s exaction takings jurisprudence is well-designed if it is applied appropriately. As a general matter, it encourages the mitigation of socially harmful nuisances, incentivizes developers to make socially desirable decisions about how to develop their properties, and protects private property from overreaching administrators who might abuse their discretion to usurp surpluses from the owners’ development projects. This Article offers guidelines for determining when the Court’s exaction takings jurisprudence should apply. It also proposes that, in some circumstances, a property owner should be able to make an exaction takings claim and a regulatory takings claim. Finally, it offers a roadmap for analyzing implicit takings claims more coherently. Under that roadmap, whether inclusionary housing programs should be subjected to the nexus and rough proportionality tests depends upon how they are designed.
Donald J. Smythe,
Exacting Inclusion: Property Theory, the Character of Government Action, and Implicit Takings,
Chapman L. Rev.
Available at: https://scholarlycommons.law.cwsl.edu/fs/394