Also known as: exactions · unlawful levy · extortionate demand
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A government-imposed condition on a development permit that requires a property owner to dedicate land or pay money to the public. The condition effects a taking unless an essential nexus exists between the demand and a legitimate interest that would justify outright denial of the permit and the exaction is roughly proportional to the projected impact of the development.
A government-imposed condition on a development permit that requires a property owner to dedicate land or pay money to the public. The condition effects a taking unless an essential nexus exists between the demand and a legitimate interest that would justify outright denial of the permit and the exaction is roughly proportional to the projected impact of the development.
Ewan Eckhart seeks a permit to enlarge his hardware store. The city conditions approval on his dedicating a strip of land for a greenway and a bike path. The city offers no individualized findings showing that the required dedications are roughly proportional to any traffic or drainage impact from the expansion. The conditions fail the proportionality test and constitute an uncompensated taking.
A monetary charge imposed by Congress whose character as a tax or penalty is determined by its practical operation and effect rather than its statutory label. The charge functions as a tax when collected through the income-tax system, varies with income or filing status, and is expected to raise substantial revenue.
Elijah Edwards refuses to purchase minimum health coverage. The IRS collects an annual sum from him calculated as a percentage of his taxable income and reported on his federal return. The payment is expected to generate substantial revenue. Because the charge operates through the tax system and varies with income, it is treated as a tax for constitutional purposes even though Congress called it a penalty.
A monetary charge imposed by Congress whose character as a tax or penalty is determined by its practical operation and effect rather than its statutory label. The charge functions as a tax when collected through the income-tax system, varies with income or filing status, and is expected to raise substantial revenue.
Each sense below has its own examples, sources, and questions.
Edward Everett applies to rebuild a beachfront home. The coastal commission grants the permit only if he conveys a public easement across the property for lateral beach access. The subdivision creates no demonstrated impact on public access that the easement would mitigate. The condition lacks an essential nexus and effects a taking.
Eileen Epstein requests a permit to develop coastal property. When she declines to pay a monetary exaction the agency demands, the agency denies the permit. The demanded payment bears no nexus or proportionality to any impact of the project. The denial is subject to Nollan/Dolan scrutiny and constitutes a taking.
Esther Eisenberg owns beachfront lots rendered unusable by a coastal-protection statute. The state imposes no permit condition or demand for dedication. Because the regulation leaves no economically viable use and does not involve an exaction, the owner may pursue a categorical takings claim without satisfying nexus or proportionality tests.
The exaction must bear an essential nexus to a legitimate governmental interest that would justify denying the permit outright. It must also be roughly proportional in nature and extent to the projected impact of the proposed development.
Yes. The standards govern demands for money as well as real-property dedications. Refusal to issue a permit because an applicant rejects an invalid monetary condition triggers the same nexus and proportionality scrutiny.
The government bears the burden. It must make an individualized determination showing that the nature and extent of the exaction are roughly proportional to the impact of the development.
Emanuel Escobar operates a religious facility that uses peyote in ceremonies. The state denies unemployment benefits after he is discharged for that use. The denial does not involve any monetary exaction collected through the tax system, so the constitutional analysis turns on free-exercise standards rather than tax characterization.
A court examines the exaction's practical operation rather than its label. When the charge is collected with income-tax returns, varies with income or filing status, and is expected to raise substantial revenue, it functions as a tax even if Congress called it a penalty.
…law). As I noted in Bowen v. Roy : “The fact that the underlying dispute involves an award of benefits rather than an exaction of penalties does not grant the Government license to apply a different version of the Constitution. . . . The fact that appellees seek exemption from a precondition that the Government…