Article Title

Takings and Extortion


Daniel P. Selmi


The Supreme Court has repeatedly employed an extortion narrative in deciding when governmental actions imposing exactions on development projects constitute takings under the Fifth Amendment. In that narrative, local officials act in ever-present bad faith by misusing their regulatory powers to coerce concessions by developers seeking land use approvals. While the extortion narrative has received little attention, it operates as an explanatory device for understanding the Court’s takings jurisprudence in the exactions field. The narrative has justified the expansion of exactions takings law beyond real property, substantially altered the deference normally accorded by the Court to local government actions, and allowed the Court to extend takings analysis into pre-decision bargaining. The concept may well lead the Court to further expand the scope of takings.

This Article analyzes the extortion narrative and concludes that it cannot support these changes in takings law. Not only is the narrative based on assumed facts, the factual context of land use exactions does not fit within the legal concept of extortion. Furthermore, use of the term devalues the constitutional status of locally elected officials while altering the function of the Takings Clause from determining when compensation is required to prophylactically preventing local government abuses by monitoring local government decision-making processes. In doing so, this Article concludes, the Court’s decisions employing the extortion narrative have departed from the actual language of the Fifth Amendment and intruded into the protections provided by a separate constitutional provision, the Due Process Clause.