An unfortunate amount of semantic confusion currently burdens the constitutional process of balancing private property rights and governmental public welfare protections. The Fifth Amendment contains both a general requirement of “due process,” and a corollary protection against unconstitutional “taking” of property. These are two separate protections, not just one. More than a century after the Takings Clause was drafted, an enigmatic decision, Pennsylvania Coal, expanded the clause to say that government regulations could cause such a diminution of private property value that they could unconstitutionally take that property, even with no physical appropriation (which is how the Framers had understood the clause). Having launched the concept of regulatory takings, the Court barely revisited it for another fifty years, while extensively developing general due process doctrine. Then, starting in the 1970s, the Justices began to expand the application of regulatory takings doctrine. But they did little to clarify the distinction between takings and general due process scrutiny. Nor did they clarify the essentially subjective line drawing of the takings inquiry, instead freighting it with new complexities, political agendas, and internal contradictions.
One particularly inapt result has emerged in the realm of land use regulatory exaction conditions, where a due process inquiry has been maladroitly commingled with takings test language. The Court began to distinguish the two in 2005, but left the resolution half-baked. Koontz v. St. Johns River Management District, in 2013, demonstrated the current semantic jumble, taking a basic due process exaction question and discussing it as a takings question. The semantics have resulted in unfortunate consequences. Building upon a factual and conceptual autopsy of the Koontz litigation, and noting a strategic semicolon from 1789 in the Fifth Amendment, this Article proposes a number of semantic hygiene clarifications for reviews of exactions and other “unconstitutional conditions”—(1) that judicial review of a permit exaction’s validity typically first must address a takings question—could the permit have been simply denied without excessively diminishing private property value?—if not, no added conditions are justified, but if so, then the further question of the exaction conditions’ constitutionality presents a further, distinct, targeted test based in due process—the Nollan-Dolan test; (2) that further review under Nollan-Dolan, based in substantive due process, applies whenever a landowner challenges the logic of any government-required exaction, whether monetary or not; and (3) recognizing Nollan-Dolan review of exaction conditions as a matter of substantive due process, rather than regulatory takings, fundamentally narrows the remedy options, as well as very usefully clarifies other enduring mysteries of the constitutional balance between public and private rights in property, a core issue of modern democratic governance. To serve these goals, this Article includes a suggested Semantic Lexicon of public/private property rights jurisprudence.
Zygmunt J.B. Plater and Michael O'Loughlin. "Semantic Hygiene for the Law of Regulatory Takings, Due Process, and Unconstitutional Conditions—Making Use of a Muddy Supreme Court Exactions Case." University of Colorado Law Review 89, no.3 (2018): 741-807.