Nollan, Dolan, and the Legislative Exception

Abstract

Most exactions are imposed through legislatively adopted fee or construction programs, with wide applicability and little administrative discretion. Truly one–time negotiations over development conditions, with all the rich possibilities for extortion noted by the U.S. Supreme Court in Nollan, are relatively rare. The “legislative exception” is a judicially created doctrine that holds heightened scrutiny under the Nollan and Dolan cases inapplicable to legislatively adopted exactions in certain states.