A new(er) law review article, worth reading, from Dean Shelly Saxer, "When Local Government Misbehaves," 2016 Utah L. Rev. 105 (2016). Here's the abstract:
In this article, Dean Saxer examines the Supreme Court’s decision in Koontz v. St. Johns River Water Management District. In that land use case, the Court held that proposed local government monetary exactions from property owners to permit land development were subject to the same heightened scrutiny test as imposed physical exactions. The Court left unanswered the question of how broadly this heightened scrutiny should be applied to other monetary obligations imposed by the government. Saxer argues that “in lieu” exactions that are individually assessed as part of the permitting process should be treated differently than the impact fees that are developed through the legislative process and are applied equally to all developers without regarding to a specific project. Accordingly, Koontz’s application should be limited to “the special context of land-use exactions” rather than be extended to all regulatory monetary obligations.
Saxer begins by identifying the various levels of scrutiny applied to land use decisions and shows how these levels are designed to prevent the abuse of power, particularly when actions are exercised at the individualized level. She concludes by suggesting that exactions that result in a permanent physical occupation of real property should be subject to heightened scrutiny. However, only administrative, individualized, monetary exactions, designed to replace a physical exaction, such as the kind involved in Koontz, should be subject to heightened scrutiny to control the potential for abuse. Legislatively-determined monetary conditions such as impact fees, but not taxes, should be subject to review under state law standards, which range from a reasonableness test to more stringent tests under statutory or judicial determinations. In the absence of a state standard of review, legislatively-enacted impact fees challenged in federal court should be analyzed under the standard rational basis test for land use regulation.
While we may not agree with a lot of what she writes, we think this article is well done and worth a read. Download it here.