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69 B.U. L. Rev. 823 (1989)
Take My Beach, Please: Nollan v. California Coastal Commission and a Rational-Nexus Constitutional Analysis of Development Exactions

handle is hein.journals/bulr69 and id is 831 raw text is: 'TAKE' MY BEACH, PLEASE!: NOLLAN V. CALIFORNIA COASTAL COMMISSION AND A RATIONAL-NEXUS CONSTITUTIONAL ANALYSIS OF DEVELOPMENT EXACTIONS Development exactions are a form of land-use regulation in which a munici- pality requires a developer to give something to the community as a condition to receiving permission to develop.' In the majority of cases, the requisite con- tribution consists of a land dedication or a monetary payment.2 In some cases, however, the exacted contribution may also take the form of an agreement to restrict the use of the property to which the development exaction is applied.3 Because development exactions restrict the development of private property, they have been the subject of frequent litigation. Disgruntled developers gener- ally claim that exactions ordinances constitute takings of property without just compensation and/or deprive them of their property without due process of law.4 Courts should evaluate these constitutional claims using a two-part ana- lytical model. First, courts must decide whether the required contribution would be uncon- stitutional if enacted as an independent land-use regulation rather than as a quid pro quo for permission to develop.5 This inquiry generally focuses on Connors & High, The Expanding Circle of Exactions: From Dedication to Linkage, 50 LAW & CONTEMP. PROBS. 69, 70 (1987). 2 See infra notes 176-87 and accompanying text. See Nollan v. California Coastal Comm'n, 107 S. Ct. 3141, 3154 n.3 (1987) (Brennan, J., dissenting) (arguing that the development exaction in question required only that the developer agree to a restriction on the property's use). One example of a development exaction involving a restriction on the use of the property is the typical historic preservation ordinance providing for transferable development rights. For ex- ample, in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), the Supreme Court addressed a New York City ordinance that restricted owners of historic buildings from altering landmark buildings in such a way that would unduly hinder the protection, enhancement, perpetuation, and use of the landmark. Id. at 112. In return for this restriction on the property's use, the ordinance provided that the owners of landmark buildings could transfer development rights attached to the landmark property in order to develop nearby properties beyond the point permitted under current zoning laws. Id. at 114. Thus, the historic preservation ordinance was the effective equivalent of a development exaction because the property owner was given permission to develop one parcel beyond the scope ordinarily permitted by law in return for a promise not to destroy the historic landmark located on another parcel. 4 See Johnston, Constitutionality of Subdivision Control Exactions: The Quest For a Rationale, 52 CORNELL L. REV. 871, 873 (1967). See e.g., Nollan, 107 S. Ct. at 3145-46 (analyzing the initial question whether the 823

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