* Articles Editor, 1999–2000, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW. The author wishes to thank Sarah Evans and Professor Zygmunt Plater for their help in framing the issues in this Note.
1 See Gus Bauman & William H. Ethier, Development Exactions and Impact Fees: A Survey of American Practices, 50 Law & Contemp. Probs. 51, 51 (1987) (calling development exactions one of the “hottest issues” in landuse law); Robert H. Freilich & Terry D. Morgan, Municipal Strategies for Imposing Valid Development Exactions: Responding to Nollan, in Exactions, Impact Fees and Dedications: Shaping Land-use Development and Funding Infrastructure in the Dolan Era, 21, 21 (Robert H. Freilich & David W. Bushek eds., ABA, 1995) (noting the abundant commentaries on recent landuse exaction jurisprudence); Otto J. Hetzel & Kimberly A. Gough, Assessing the Impact of Dolan v. City of Tigard on Local Governments’ Land-Use Powers, in Takings: Land-Development Conditions and Regulatory Takings after Dolan and Lucas, 219, 219 (David L. Callies ed., ABA, 1996) (noting the United States Supreme Court has issued five decisions in the last seven years addressing landuse regulation and development). “Exaction” is used interchangeably with “development condition” throughout this Note to refer generally to the various landuse regulatory tools used by municipalities in conditioning development permits. See Vicki Been, “Exit” as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 Colum. L. Rev. 473, 478 n.29 (1991) (considering distinctions between development conditions and exactions to be “too fine” for her purposes).
2 See Been, supra note 1, at 478–79. “Municipality” is used interchangeably with “local government” throughout this Note to refer to counties, cities, towns, and villages. See id. at 473 n.2. While state agencies may occasionally impose exactions, the vast majority of exactions are imposed by municipal governments. See id. This Note similarly focuses on professional developers rather than ordinary landowners because most development conditions are imposed upon developers. See David A. Dana, Land Use Regulation in an Age of Heightened Security, in 1998 Zoning and Planning Law Handbook pt.4, ch. 8 at 10 n.20 (Christine Carpenter ed., 1998). The term “development permit” in this Note refers to any discretionary permit, variance, special exemption, or other governmental permission that a developer or landowner needs to change or expand the existing use of a property. See Douglas T. Kendall & James E. Ryan, Paying for the Change: Using Eminent Domain to Secure Exactions and Sidestep Nollan and Dolan, 81 Va. L. Rev. 1801, 1802 n.4 (1995).
3 272 U.S. 365, 393, 395–97 (1926) (finding it constitutional not to question wisdom of municipal ordinances).
4 See Dana, supra note 2, at 11.
5 See, e.g., Daniel R. Mandelker, Land Use Law 398 (4th ed. 1997); Bauman & Ethier, supra note 1, at 51–52; Bernard V. Keenan, Report of the Subcommittee on Exactions and Impact Fees, 23 Urb. Law. 627, 627 (1991).
6 See Thomas W. Ledman, Local Governmental Environmental Mitigation Fees: Development Exactions, The Next Generation, 45 Fla. L. Rev. 835, 842–53 (1993).
7 See Dana, supra note 2, at 13–14. Local governments derive their police powers from the state through enabling legislation or the local government’s comprehensive planning act. See Ledman, supra note 6, at 842–43. Local governments may not enact exaction ordinances without this derivative police power. See id. at 843; Keenan, supra note 5, at 853–55 (1992) (discussing successful challenges to landuse exactions based on lack of enabling authority).
8 See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 382–84 & n.5 (1994); Nollan v. California Coastal Comm’n, 483 U.S. 825, 827 (1987); Ledman, supra note 6, at 847–53.
9 See Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985) (referring to regulation that “goes too far”).
10 See, e.g., Dana, supra note 2, at 5; Deborah Rhoads, Developer Exactions and Public Decision Making in the United States and England, 11 Ariz. J. Int’l & Comp. L. 469, 469–70 (1994).
11 See, e.g., Dana, supra note 2, at 5; Rhoads, supra note 10, at 469–70.
12 See 483 U.S. at 825.
13 See 512 U.S. at 374.
14 Dana, supra note 2, at 5–7. The “nexus” test, created by the Supreme Court in Nollan, requires that the exaction bear a “nexus” or connection to the regulatory purpose that would have allowed the municipality to deny the development permit altogether. See 483 U.S. at 837. The “rough proportionality” test examines whether an exaction burdens the developer disproportionately more than it mitigates the development’s harmful impacts. See Dolan, 512 U.S. at 390–91, 391 n.8.
15 See Dolan, 512 U.S. at 394–96; Nollan, 483 U.S. at 838–39.
16 See, e.g., Dolan, 512 U.S. at 383–86, 394–96; Nollan, 483 U.S. at 838–39.
17 See Dana, supra note 2, at 58–59 (noting that successful post-construction challenges to development conditions give developers the effect of unconditioned development and may cause municipal regulators to deny development permits altogether to avoid this loss).
18 Ehrlich v. City of Culver City, 911 P.2d 429, 449 (Cal. 1996) (speaking of returning municipality to status quo as objective after developer challenged exaction); see, e.g., Hetzel & Gough, supra note 1, at 220. Municipalities may deny development altogether rather than risk having exactions stricken and have the development proceed unmitigated. See Hetzel & Gough, supra note 1, at 220. This reasoning implies that municipalities lose the status quo when their development conditions are stricken and the development proceeds; municipalities must therefore deny development from the outset because they are unable to return to the status quo otherwise. See id.
19 See, e.g., Hetzel & Gough, supra note 1, at 220 (describing risk of losing “limited resources” for “misjudgments” in imposing exactions); Sam D. Starritt & John H. McClanahan, Land-Use Planning and Takings: The Viability of Conditional Exactions to Conserve Open Space in the Rocky Mountain West After Dolan v. City of Tigard, 114 S. Ct. 2309 (1994), 30 Land & Water L. Rev. 415, 451 (1995) (noting the potential cost of imposing exactions is a “difficulty” which may cause municipalities to deny development permits outright).
20 See, e.g., Dana, supra note 2, at 10; Hetzel & Gough, supra note 1, at 220.
21 See Hetzel & Gough, supra note 1, at 220.
22 Brief for Respondent at 19, Dolan v. City of Tigard, 512 U.S. 374 (1994) (No. 93–518); Arthur C. Nelson, Development Impact Fees: The Next Generation, in Exactions, Impact Fees and Dedications: Shaping Land-use Development and Funding Infrastructure in the Dolan Era, 87, 88 (Robert H. Freilich & David W. Bushek eds., 1995).
23 Agins v. City of Tiburon, 447 U.S. 255, 261 (1980).
24 Brief for Respondent at 19, Dolan (No. 93–518).
25 See Kendall & Ryan, supra note 2, at 1832–35 (discussing detrimental effects of nexus/rough proportionality review on efficiency and fairness of regulating land use with conditioned permits); Mark L. Movsesian, Severability in Statutes and Contracts, 30 Ga. L. Rev. 41, 43–44 (1995) (discussing use of severability doctrine in contract and statutory contexts). Kendall and Ryan’s reasoning implies that nexus/rough proportionality review is detrimental to municipalities because it leads to more challenged exactions, which leads to severed exactions and unmitigated development. See Kendall & Ryan, supra note 2, at 1832–35.
26 See Movsesian, supra note 25, at 43–44.
27 See id.
28 See id. at 48, 59.
29 See id. at 44.
30 See Ehrlich v. City of Culver City, 911 P.2d 429, 449 (Cal. 1996) (noting exactions accomplish municipalities’ objective of “escaping the narrow choice between denying [developer] his project permit altogether or subordinating legitimate public interests to . . . development plans”); Dana, supra note 2, at 10 (arguing municipalities over-regulate development due to fear exactions will be stricken).
31 See Movsesian, supra note 25, at 43–44 (explaining courts do not enforce contracts or statutes containing illegal or unconstitutional term or provision essential to overall agreement).
32 See Been, supra note 1, at 476–78 (explaining that developers’ choice of where to develop causes competition among municipalities for that business); Dana, supra note 2, at 63–64 (noting most developers transact repeatedly with the same few communities).
33 See, e.g., Brief for Respondent at 19, Dolan (No. 93–518) (noting municipalities’ ability to condition development with exactions facilitates commercial development); Dana, supra note 2, at 56–59 (discussing how regulators may deny development permits outright due to the threat of a developer’s suit challenging conditioned exactions).
34 Robert H. Freilich & Bruce G. Peshoff, The Social Costs of Sprawl, in 1998 Zoning and Planning Law Handbook pt. 5, ch. 9, at 6 (Christine Carpenter ed., 1998).
35 See id.
36 See Rhoads, supra note 10, at 472.
37 See id.
38 See R. Marlin Smith, From Subdivision Improvement Requirements to Community Benefit Assessments and Linkage Payments: A Brief History of Land Development Exactions, 50 Law & Contemp. Probs. 5, 5 (1987).
39 See id.
40 Id. at 5–6.
41 See id.
42 See Rhoads, supra note 10, at 472.
43 See Smith, supra note 38, at 6.
44 See Theodore C. Taub, Exactions, Linkages, and Regulatory Takings: The Developer’s Perspective, in Exactions, Impact Fees and Dedications: Shaping Land-use Development and Funding Infrastructure in the Dolan Era, 125, 129 (Robert H. Freilich & David W. Bushek eds., 1995).
45 See id.
46 See id.
47 See id.
48 See, e.g., Bauman & Ethier, supra note 1, at 51–52; Rhoads, supra note 10, at 473.
49 See, e.g., Bauman & Ethier, supra note 1, at 51–52; Rhoads, supra note 10, at 473. As an example, Florida’s population increased by 43.5% between 1970 and 1980, and as of 1987 the state had an estimated deficit of $53 billion for unmet infrastructure needs. See Taub, supra note 44, at 126 (citing The Final Report of the State Comprehensive Plan Committee to the State of Florida (Feb. 1987)).
50 See Nelson, supra note 22, at 88; Rhoads, supra note 10, at 473 & n.33. While property taxes comprised nearly 43% of municipalities’ general revenues nationwide in 1976, this percentage had fallen to 29.5% by 1986. See Rhoads, supra note 10, at 473 n.33.
51 See Nelson, supra note 22, at 87–88. While federal grants were about 15% of local own-source revenue in 1979, this dropped to five percent in 1989. See id. During the same time period, state grants fell from 53% to 44%. See id.
52 See Rhoads, supra note 10, at 474. While the cost of building one lane-mile of road in Florida in 1967 was $100,000, exclusive of right-of-way, that cost had tripled by 1986. See id.
53 See Bauman & Ethier, supra note 1, at 52.
54 See id.
55 See, e.g., Ledman, supra note 6, at 839–41; Taub, supra note 44, at 130–32.
56 See, e.g., Ledman, supra note 6, at 839–40; Taub, supra note 44, at 130.
57 See, e.g., Ledman, supra note 6, at 840–41; Taub, supra note 44 at 131–32.
58 See Ledman, supra note 6, at 841.
59 See, e.g., Ledman, supra note 6, at 840–41; Taub, supra note 44, at 132.
60 See Taub, supra note 44, at 125.
61 See Bauman & Ethier, supra note 1, at 52; Rhoads, supra note 10, at 473–74.
62 See Kendall & Ryan, supra note 2, at 1832; Been, supra note 1, at 482–83.
63 See, e.g., Been, supra note 1, at 482–83; Edward J. Kaiser & Raymond J. Burby, Exactions in Managing Growth: The Land-Use Planning Perspective, in Private Supply of Public Services: Evaluation of Real Estate Exactions, Linkage, and Alternative Land Policies 113, 116 (Rachelle Alterman ed., 1988); Kendall & Ryan, supra note 2, at 1832–34.
64 See, e.g., Been, supra note 1, at 482; Kaiser & Burby, supra note 63, at 116; Kendall & Ryan, supra note 2, at 1833–34.
65 See Been, supra note 1, at 483.
66 See Been, supra note 1, at 483; Kendall & Ryan, supra note 2, at 1832.
67 See Kendall & Ryan, supra note 2, at 1832. This view considers the profit as the developer’s alone despite the fact that the municipality had helped to create the profit by allowing the development to proceed. See id.
68 See, e.g., Collis v. City of Bloomington, 246 N.W.2d 19, 26 (Minn. 1976) (exactions may constitute “grand theft”); Robbins Auto Parts v. City of Laconia, 371 A.2d 1167, 1169 (N.H. 1977) (city officials attempting to “extort” citizen by conditioning development permit with an exaction).
69 Webster’s Third New International Dictionary 790 (1986) (emphasis in original).
70 See Been, supra note 1, at 475–78 (fear of extortion is unfounded and the law generally supports judicial deference where market factors guide bargaining terms).
71 See Nelson, supra note 22, at 95.
72 See id.
73 See Been, supra note 1, at 512; Nelson, supra note 22, at 95.
74 See Been, supra note 1, at 511.
75 See id. at 512.
76 483 U.S. 825, 837 (1987) (quoting J.E.D. Assoc. v. Atkinson, 432 A.2d 12, 14–15 (N.H. 1981)).
77 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
78 See Dolan v. City of Tigard, 512 U.S. 374, 386–88 (1994); Nollan v. California Coastal Comm’n, 483 U.S. 825, 831–37 (1987).
79 See 483 U.S. at 827–28.
80 See id. at 828.
81 See id.
82 See id. at 828–29, 835–39.
83 See id. at 835–36, 838. The Court stated: “We find that this case does not meet even the most tailored standards [of a test determining how close a nexus between the condition and the burden is required].” Id. at 838. The Court continued, “It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans’ property reduces any obstacles to viewing the beach created by the new house.” Id.
84 Nollan, 483 U.S. at 836.
85 See id. at 831.
86 See id. at 834–37.
87 See id. at 836–37.
88 See id.
89 Id. at 837 (quoting J.E.D. Assoc. v. Atkinson, 432 A.2d 12, 14–15 (N.H. 1981)).
90 See, e.g., Laurence H. Tribe, American Constitutional Law 598 n.18 (2d ed. 1988); Been, supra note 1, at 474–75; Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1463–64, 1505 (1989) (interpreting Nollan as an unconstitutional conditions case). The Supreme Court made more explicit its reliance on the unconstitutional conditions doctrine in developing Nollan’s nexus test when deciding Dolan v. City of Tigard. See 512 U.S. at 385. “Under the well-settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken for a public use—in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property.” Id.
91 Sullivan, supra note 90, at 1415.
92 See 483 U.S. at 836–37.
93 See Dolan, 512 U.S. at 374; Kendall & Ryan, supra note 2, at 1810.
94 See Dolan, 512 U.S. at 379.
95 See id. at 379–80.
96 See id. at 380.
97 See id. at 380–81.
98 See id. at 386–88.
99 See id. at 388–93.
100 Dolan, 512 U.S. at 391.
101 Id. The majority suggested in a footnote that the burden lies with the municipality in this case because the city’s decision was adjudicative rather than legislative. See id. at 391 n.8. For a discussion of the practical impact of shifting the burden of proof, see Julian R. Kossow, Dolan v. City of Tigard, Takings Law, and the Supreme Court: Throwing the Baby out with the Floodwater, 14 Stan. Envtl. L.J. 215, 237–41 (1995).
102 See Dolan, 512 U.S. at 386–87, 394–96.
103 See id. at 395–96 (finding development condition unconstitutional and concluding opinion without mention of severability analysis); Nollan, 483 U.S. at 841 (concluding opinion without severability analysis after finding development condition unconstitutional).
104 See Nollan, 483 U.S. at 829–30.
105 See id.
106 See Dolan, 512 U.S. at 396; Brief for Respondent at 2, Dolan (No. 93–518) (describing Ms. Dolan’s plans to expand in the future tense).
107 See Dolan, 512 U.S. at 396.
108 See 877 P.2d 1201, 1201 (1994) (remanding to the City of Tigard without further analysis).
109 Dolan v. City of Tigard, 512 U.S. 374, 391 (1994); Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987).
110 See Been, supra note 1, at 545; Kendall & Ryan, supra note 2, at 1815.
111 Laurie Reynolds, Living With Land Use Exactions, 11 Yale J. on Reg. 507, 514 (1994) (book review); see also Been, supra note 1, at 545; Kendall & Ryan, supra note 2, at 1815.
112 See Dana, supra note 2, at 58–59 (describing how post-construction challenges to development permits affect unconditional development and may cause municipalities to avoid this by denying development permits altogether). As long as courts sever unconstitutional conditions from permits, leaving developers with unconditioned permits, unconditional development results whether or not developers challenge the exaction before, during or after construction. See id.
113 Lynda L. Butler, State Environmental Programs: A Study in Political Influence and Regulatory Failure, 31 Wm. & Mary L. Rev. 823, 830–31 (1990).
114 Id. at 838.
115 While Nollan was decided in 1987, and the Virginia study was reported in 1990, the 1994 Dolan decision increased Nollan’s judicial scrutiny by adding the rough proportionality requirement. See Dolan, 512 U.S. at 391.
116 See Butler, supra note 113, at 830–34; Hetzel & Gough, supra note 1, at 243.
117 See 512 U.S. at 391 n.8; see also Hetzel & Gough, supra note 1, at 243; Kossow, supra note 101, at 238–41.
118 See Hetzel & Gough, supra note 1, at 243.
119 See Agins v. City of Tiburon, 447 U.S. 255, 261 n.8 (1980) (discussing the “ill effects of urbanization,” including “air, noise and water pollution, traffic congestion, destruction of scenic beauty, disturbance of the ecology and environment, hazards to geology, fire and flood, and other demonstrated consequences of urban sprawl”).
120 See, e.g., Dana, supra note 2, at 10; Hetzel & Gough, supra note 1, at 220, 243.
121 See Richard H. Cowart, Negotiating Exactions Through Development Agreements, in Private Supply of Public Services: Evaluation of Real Estate Exactions, Linkage, and Alternative Land Policies 219, 219 (Rachelle Alterman ed., 1998); Rhoads, supra note 10, at 505.
122 See Cowart, supra note 121, at 219.
123 Id.
124 See Rhoads, supra note 10, at 506–07.
125 See id. at 507. These states are Arizona, Colorado, Florida, Hawaii, Louisiana, Minnesota, Nevada, New Jersey, and Washington. See id.
126 See id. at 506.
127 See id.
128 See Cowart, supra note 121, at 219–20.
129 See id. In this way the parties are not limited by municipal ordinances that would apply to all similarly situated applicants. See id.
130 See id. at 220.
131 See id.
132 See John J. Delaney, Development Agreements: The Road from Prohibition to “Let’s Make a Deal!”, in Exactions, Impact Fees and Dedications: Shaping Land-use Development and Funding Infrastructure in the Dolan Era, 384, 394 (Robert H. Freilich & David W. Bushek eds., 1995).
133 See id. at 392–93; Rhoads, supra note 10, at 509.
134 939 F.2d 696 (9th Cir. 1991).
135 See id. at 697–98.
136 See id. at 698.
137 Id.
138 560 A.2d 599 (Md. 1989).
139 See id. at 600–01.
140 See id. at 601–02.
141 See id.
142 See id. at 602.
143 See id.
144 Meredith, 560 A.2d at 604.
145 See, e.g., Blagden Alley Ass’n v. District of Columbia Zoning Comm’n, 590 A.2d 139 (D.C. 1991) (holding duress is not a defense to enforcing development agreement); Sylvania Elec. Prods. v. City of Newton, 183 N.E.2d 118 (Mass. 1962) (denying claims of improper conditional zoning where applicant’s agreement to specific use limitations was considered to be voluntary action).
146 See Rhoads, supra note 10, at 508–09.
147 See id.
148 See Part I, supra, and accompanying footnotes.
149 See, e.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684–85 (1987); Restatement (Second) of Contracts § 184(1) (1981); Irving M. Copi, Symbolic Logic 16–18, 22–24 (5th ed. 1979).
150 See Copi, supra note 149, at 22–24. This basic argument form is known as Modus Tollens. See id.
151 See id.
152 See id.
153 See id.
154 See Movsesian, supra note 25, at 43.
155 See Restatement (Second) of Contracts § 184(1) (1981).
156 See Alaska Airlines, 480 U.S. at 684–85.
157 For a more detailed discussion of the severability doctrine, see Mark L. Movsesian’s article, supra note 25, at 41–73.
158 See Farnsworth, Contracts § 5.1, at 345–48 (2d ed. 1990).
159 See Movsesian, supra note 25, at 47.
160 See Farnsworth, supra note 158, at 384–85.
161 See id. at 348–50.
162 See Movsesian, supra note 25, at 47.
163 See Restatement (Second) of Contracts § 184(1) (1981).
164 See Toledo Police Patrolmen’s Ass’n, Local 10 v. City of Toledo, 641 N.E.2d 799, 803 (Ohio Ct. App. 1994), appeal denied, 639 N.E.2d 795 (Ohio 1994).
165 See, e.g., Panasonic Co. v. Zinn, 903 F.2d 1039, 1041 (5th Cir. 1990); John D. Calamari & Joseph M. Perillo, The Law of Contracts § 22–4(d), at 784 (2d ed. 1977).
166 See, e.g., Zinn, 903 F.2d at 1041–42; Yakima County (West Valley) Fire Protection Dist. No. 12 v. City of Yakima, 858 P.2d 245, 259 (Wash. 1993).
167 See, e.g., National Iranian Oil Co. v. Ashland Oil, Inc., 817 F.2d 326, 333–34 (5th Cir. 1987), cert. denied, 484 U.S. 943 (1987); Zerbetz v. Alaska Energy Ctr., 708 P.2d 1270, 1282–83 (Alaska 1985).
168 See, e.g., National Iranian Oil, 817 F.2d at 333–34; Zerbetz, 708 P.2d at 1282–83.
169 See Movsesian, supra note 25, at 48.
170 See id.
171 See, e.g., Eckles v. Sharman, 548 F.2d 905, 909 (10th Cir. 1977); Toledo Police Patrolmen’s Ass’n, Local 10 v. City of Toledo, 641 N.E.2d 799, 803 (Ohio Ct. App. 1994), appeal denied, 639 N.E.2d 795 (Ohio 1994)(severing unenforceable term where contract contained severability clause and history of term’s negotiation failed to show that term was consideration for other, enforceable, term).
172 See Eckles, 548 F.2d at 907–09 (holding severability clause facilitates interpretation but is insufficient to direct a verdict where evidence of negotiation history calls intent of parties into question).
173 See Movsesian, supra note 25, at 43.
174 See, e.g., State ex. rel. Huston v. Commissioners of Perry County, 5 Ohio St. (1 Critch.) 497, 507 (1856); Warren v. Mayor of Charlestown, 68 Mass. (2 Gray) 84, 90–91 (1854); see also Movsesian, supra note 25, at 42–43.
175 See Movsesian, supra note 25, at 58–59.
176 Alaska Airlines, 480 U.S. at 685; see also Movsesian, supra note 25, at 58–60.
177 See Movsesian, supra note 25, at 59–60. As an example, in Alaska Airlines the Supreme Court determined Congress’ intent concerning the severability of a statutory provision by examining both the text and the legislative history of the statute. See 480 U.S. at 686–87.
178 See Alaska Airlines, 480 U.S. at 686.
179 United States v. Jackson, 390 U.S. 570, 585 n.27 (1968); see also Dorchy v. Kansas, 264 U.S. 286, 290 (1924) (describing severability clause as “merely” an “aid” in determining legislative intent, “not an inexorable command”).
180 See Alaska Airlines, 480 U.S. at 686.
181 See id. at 685. “[T]he unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.” Id.; see, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 313–16 (1936); Retirement Bd. v. Alton R.R., 295 U.S. 330, 362 (1935).
182 See, e.g., New York v. United States, 505 U.S. 144, 186–87 (1992); Alaska Airlines, 480 U.S. at 697; INS v. Chada, 462 U.S. 919, 932 (1983). Whereas the contract context provides the court (on occasion) with the option to rewrite the offending term, the blue-pencil rule does not apply in the legislative context due to the separation of powers doctrine. See Movsesian, supra note 25, at 57–58. “A court has no constitutional authority to rewrite legislation.” See id.
183 See Hetzel & Gough, supra note 1, at 220. When exactions are stricken, municipalities are forced to expend “limited resources to compensate for misjudgments in what was presumed to be a valid means of obtaining public cost contributions from private landowners . . . .” Id.
184 See Ehrlich v. City of Culver City, 911 P.2d 429, 449 (Cal. 1996) (speaking of returning municipality to status quo as objective after developer challenged exaction); see, e.g., Hetzel & Gough, supra note 1, at 220. Municipalities may deny development altogether rather than risk having exactions stricken and the development proceed unmitigated. See Hetzel & Gough, supra note 1, at 220. This reasoning implies that municipalities lose the status quo when their development conditions are stricken and the development proceeds.
185 Ehrlich, 911 P.2d at 449.
186 See Kendall & Ryan, supra note 2, at 1832–35 (discussing detrimental effects of nexus/rough proportionality review on efficiency and fairness of regulating land use with conditioned permits); Movsesian, supra note 25, at 43–44 (discussing use of severability doctrine in contract and statutory contexts). Kendall and Ryan’s reasoning implies that nexus/rough proportionality review is detrimental to municipalities because it leads to more challenged exactions, which leads to severed exactions and unmitigated development. See Kendall & Ryan, supra note 2, at 1032–35.
187 See Movsesian, supra note 25, at 43–44 (discussing use of severability doctrine in contract and statutory contexts).
188 See Ehrlich, 911 P.2d at 438.
189 Id. at 438 (emphasis added).
190 See, e.g., Dolan v. City of Tigard, 512 U.S. 374 (1994) (nowhere discussing the parties’ intent as to the condition’s importance to the permit); Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (nowhere discussing the parties’ intent as to the condition’s importance to the permit).
191 See, e.g., Dolan, 512 U.S. at 387, 393–96 (discussing the valid mitigatory purposes of the conditions, but striking them as unconstitutional); Nollan, 483 U.S. at 829–30, 841–42 (mentioning that the Nollans completed building the new house and striking the mitigatory condition).
192 See Rhoads, supra note 10, at 469–70 (describing burden development places on municipalities’ infrastructure and natural resources).
193 See Farnsworth, supra note 158, § 2.20.
194 See, e.g., Nollan, 512 U.S. at 829–30, 841–42 (striking exaction when the Nollans had already completed construction).
195 See, e.g., Restatement (Second) of Contracts § 184(1) (1981); Movsesian, supra note 25, at 43–44 (discussing judicial tradition of determining severability of conditions or terms in contracts and statutes by examining intent of parties).
196 See Movsesian, supra note 25, at 43–44 (determining whether conditions are essential in contracts and statutes).
197 See, e.g., St. Johns County v. Northeast Fla. Builders Ass’n, 583 So. 2d 635, 640 (Fla. 1991) (severing unconstitutional section of ordinance when intent of ordinance will be unaffected); Eastern Air Lines, Inc. v. Department of Revenue, 455 So. 2d 311, 317 (Fla. 1984), appeal dismissed, 474 U.S. 892 (1985) (noting severance appropriate if legislative intent is fulfilled and remainder of law is not rendered incomplete by severance).
198 See Movsesian, supra note 25, at 43–44 (discussing the judicial tradition of determining severability in contracts and statutes by examining intent of the parties).
199 See id. (noting courts will sever illegal contractual term or unconstitutional statutory provision where term or provision is unessential to agreement).
200 See id. (explaining courts enforce remaining contract or statute after severing unconstitutional term or provision).
201 See Been, supra note 1, at 476, 543–45.
202 See id. (arguing that Nollan’s heightened judicial scrutiny is unnecessary, and even harmful, where market forces sufficiently constrain municipal overreaching through exactions).
203 See id. at 476–78, 511–28.
204 See id. at 528–45.
205 See Been, supra note 1, at 511–12; Nelson, supra note 22, at 95.
206 See Been, supra note 1, at 511–12 (stating competition prevents municipalities from overreaching).
207 See Nollan, 483 U.S. at 837 (quoting J.E.D. Assoc. v. Atkinson, 432 A.2d 12, 14–15 (N.H. 1981)) (describing exaction imposed for illegitimate purposes as “extortion”).
208 See id.
209 See Movsesian, supra note 25, at 43–44 (explaining courts sever unconstitutional provisions and illegal terms from statutes and contracts when provisions and terms are nonessential to the agreement).
210 See Nollan, 483 U.S. at 828. Because the Nollans completed construction of their house prior to the litigation’s outcome, an application of the severability doctrine would not have stopped them from building. See id. Nonetheless, the case is still helpful in determining how the Court could apply severability analysis. See id.
211 See id. at 828; Appellee’s Motion to Dismiss at 5, Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (No. 86–133).
212 See Appellee’s Motion to Dismiss at 5, Nollan (No. 86–133).
213 See Brief for Appellants at 5, Nollan (No. 86–133).
214 See id.
215 See Nollan, 483 U.S. 825, 829; Brief for Appellants at 10–11, Nollan (No. 86–133).
216 See Nollan, 483 U.S. at 829–30.
217 See id.; Brief for Appellants at 5, Nollan (No. 86–133).
218 See Brief for Appellants at 5, Nollan (No. 86–133).
219 See Movsesian, supra note 25, at 47–50, 58–60 (noting courts do not sever essential unconstitutional provisions or illegal terms from statutes and contracts, but rather hold the entire agreement unenforceable).
220 See, e.g., Dana, supra note 2, at 10; Hetzel & Gough, supra note 1, at 220; Kendall & Ryan, supra note 2, at 1813–15.
221 See Brief for Respondent at 19, Dolan (No. 93–518).