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Here’s the latest in a case we’ve been following closely. (We won’t be commenting much, because it is one of ours.)

In The Coalition for Fairness in Soho and Noho, Inc. v. City of New York, No. 112 (Jan. 13, 2026), the New York Court of Appeals (dun-dun) held that

New York City wants to save space so artists can live there. If an owner wants to covert a SoHo or NoHo artist live/work space into plain old residential (because artists ain’t living in SoHo or NoHo), she better get ready to pay to the City’s Arts Fund a non-refundable fee of $100 per square foot as a precondition of even filing a building permit. When owners challenged this fee as unconstitutional under Nollan/Dolan/Koontz/Sheetz, the trial division said no.

But the Appellate Division held otherwise, concluding that the imposition of the…

Continue Reading NY Court Of Appeals Tees Up A Certworthy Exactions Case

This is going to be a short post, mostly because the U.S. Court of Appeals for the Ninth Circuit’s opinion in KOGAP Ent., Inc. v. City of Medford, No 24-5268 (Nov. 13, 2025) is itself short.

Before we go further, this disclosure: this is one of ours, and our Pacific Legal Foundation colleague Brian Hodges argued the case.

It’s a three-page memorandum opinion so there’s not a lot there to sink our teeth into, and it would be faster for you to just read it yourself, rather than us explaining what it said. Short story is that the city imposed an exaction requiring KOGAP to extend a city street. The court affirmed the exaction has an “essential nexus” to KOGAP’s proposed development project, holding that the street extension was justified because the development would likely result in “more auto-oriented uses.”

But the court held that there’s no evidence that…

Continue Reading CA9: No Evidence That Exaction Was Proportional

When government enters the pharmaceutical market as a participant, it naturally changes the dynamics. But when Congress does this, is it a taking? 

Medicare Part D is a voluntary prescription drug benefit program for Medicare beneficiaries. When Congress first created Part D in 2003, it barred the Centers for Medicare and Medicaid Services (“CMS”) from using its market share to negotiate lower prices for the drugs it covers. But Congress changed course when it enacted the Inflation Reduction Act of 2022 (the “IRA”). The IRA includes a Drug Price Negotiation Program (the “Program”) that directs CMS to negotiate prices over a subset of covered drugs that lack a generic competitor and represent the highest expenditures to the government.

In Bristol Myers Squibb Co. v. U.S. Dep’t of Health & Human Svcs., No. 24-1820 (Sep. 4, 2025), the U.S. Court of Appeals for the Third Circuit held no, it…

Continue Reading CA3: Statute That Leverages Govt Power To Drive Hard Bargains Isn’t A Taking

Heads up on a new article of interest to those of us who deal with exactions and Nollan/Dolan: Matthew Baker, Much Ado About Nollan/Dolan: The Comparative Nature of the Legislative Adjudication Distinctions in Exactions, 42 Urban Lawyer 171 (2010). Here’s a summary: 

Much has been made, by both commentators and courts, of the distinction between legislative and adjudicative land use exactions used to determine whether an exaction must meet the “essential nexus” requirement of Nollan v. California Coastal Commission and the “rough proportionality” test of Dolan v. City of Tigard. But practical application of the distinction has been anything but simple, only adding to the “mess” and “muddle” of Takings Clause jurisprudence. While exactions jurisprudence is admittedly messy, the apparent analytical incoherence results primarily from the confused and inconsistent application of the Nollan/Dolan test by lower courts, which would no doubt prefer…

Continue Reading New Article On Legislative-Adjudicative Distinction In Nollan/Dolan Analysis

To all those who attended today’s sessions on Practical Guide to Land Use and Zoning, thank you. 

Here is the upcoming attorney’s fee case in the US Supreme Court that I mentioned, the Hawaii fee-shifting statute in cases of “development” without a permit in environmental matters, and California’s Ehrlich v. City of Culver City case, where the court held that the Nollan/Dolan standards apply to non-property exactions, as well as governmental demands for property:

As we explain, we conclude that the tests formulated by the high court in its Dolan and Nollan opinions for determining whether a compensable regulatory taking has occurred under the takings clause of the Fifth Amendment to the federal Constitution apply, under the circumstances of this case, to the monetary exaction imposed by Culver City as a condition of approving plaintiff’s request that the real property in suit be rezoned to permit the…

Continue Reading ▪ Land Use and Zoning Seminar