West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), a petition we've been following that asked whether the nexus and "rough proportionality" tests for a regulatory taking in Nollan and Dolan are limited to government demands for land, has been denied.
California and Texas say the nexus and rough proportionality standards apply to all exactions (we don't want the government blackmailing permit applicants, regardless of the tribute that is demanded), while Florida says they don't. Other courts have also weighed in on one side or the other, and lacking guidance from the Supreme Court, will continue to flounder about on this issue.
We suspect the Court's reluctance to address the confusion has less to do with the issue at hand (must all exactions be related and proportional to the predicted impact of the development) and more to do with the Court's inabliity to describe the nature of the cause of action after Lingle. In that case, the Court "relocated" the "substantially advance" test from takings law to due process, even as it reaffirmed the validity of Nollan and Dolan. If we had to guess, we'd say Justice Kennedy wouldn't mind viewing Nollan and Dolan through due process lenses, while Justice Scalia ain't having none of that.
Meanwhile, while the Court tries to make doctrinal sense of exactions, local governments who demand them, and property owners who have to choose whether to acquiese to them, are left wondering whether and what is legal, and the federal constitutional standard now varies from state to state.
The beat goes on.
