unconstitutional conditions doctrine in California

2025(Ibid. [describing permit conditions of this nature --conditions that insist landowners “internalize the negative externalities of their conduct”--as “a hallmark of responsible land-use policy,” and noting that the Supreme Court has “long sustained such regulations against constitutional attack”]; see also Sheetz, supra, 601 U.S. at p. 275 11 [observing that the “government is entitled to put the landowner to the choice of accepting the bargain or abandoning the proposed development”].) But the Supreme Court has found that permitting conditions may sometimes go too far and make extortionate de

2024The unconstitutional conditions doctrine “vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.” (Koontz, supra, 570 U.S. at p. 604 .) A “ ‘special application’ of this doctrine . . . protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits.” (Ibid.) In these cases, the Supreme Court has noted that government officials may reasonably require landowners to “internalize the negative externalities of their conduct.” (Id. at p. 605.) So, for example, “[w]here a b

2025(Id. at pp. 252, 254– 255, 263.) The court rejected the plaintiffs’ argument based on the unconstitutional conditions doctrine because it concluded “the doctrine, with its attendant Nollan/Dolan test, generally is not applied to facial challenges.” (Id. at p. 267, italics omitted.) It relied in part on Action Apartment Assn. v. City of Santa Monica (2008) 166 Cal.App.4th 456, 470 , which in turn followed San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 670 , to hold that the Nollan/Dolan test governed only individual adjudicative permit approval decisions and fees, not

2025(Id. at pp. 252, 254– 255, 263.) The court rejected the plaintiffs’ argument based on the unconstitutional conditions doctrine because it concluded “the doctrine, with its attendant Nollan/Dolan test, generally is not applied to facial challenges.” (Id. at p. 267, italics omitted.) It relied in part on Action Apartment Assn. v. City of Santa Monica (2008) 166 Cal.App.4th 456, 470 , which in turn followed San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 670 , to hold that the Nollan/Dolan test governed only individual adjudicative permit approval decisions and fees, not

2025Takings Claim A. Legal Overview “As a general matter, the unconstitutional conditions doctrine imposes special restrictions upon the government’s otherwise broad authority to condition the grant of a privilege or benefit when a proposed condition requires the individual to give up or refrain from exercising a constitutional right.” (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 457 .) The Supreme Court has applied the unconstitutional conditions doctrine to protect various rights, including the rights of free speech and travel.

2025(Id. at pp. 276, 279.) However, “there can be no valid unconstitutional-conditions takings claim without a government exaction of property.” (California Building Industry Assn. v. City of San Jose, supra, 61 Cal.4th at p. 457 .) A regulation that “simply restricts the use of property without demanding the conveyance of some identifiable protected 10 property interest (a dedication of property or the payment of money) as a condition of approval” does not bring the unconstitutional conditions doctrine into play.

2019Inc. (2005) 544 U.S. 528, 536-537 .).) One instance in which a violation of the takings clause may occur is "[u]nder the well-settled doctrine of 'unconstitutional conditions,' " under which "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." (Dolan v. City of Tigard (1994) 512 U.S. 374, 385 .) Although the Lindstroms' takings clause argument is not

2015(See, e.g., Perry v. Sindermann (1972) 408 U.S. 593, 597-598 [ 33 L.Ed.2d 570 , 92 S.Ct. 2694 ]; Pickering v. Board of Education (1968) 391 U.S. 563, 568 [ 20 L.Ed.2d 811 , 88 S.Ct. 1731 ].) In the takings context, the special limitations imposed by the unconstitutional conditions doctrine upon which CBIA relies derive from the United States Supreme Court’s decisions in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [ 97 L.Ed.2d 677 , 107 S.Ct. 3141 ] (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 [ 129 L.Ed.2d 304 , 114 S.Ct. 2309 ] (Dolan).

2015(See, e.g., Perry v. Sindermann (1972) 408 U.S. 593, 597-598 [ 33 L.Ed.2d 570 , 92 S.Ct. 2694 ]; Pickering v. Board of Education (1968) 391 U.S. 563, 568 [ 20 L.Ed.2d 811 , 88 S.Ct. 1731 ].) In the takings context, the special limitations imposed by the unconstitutional conditions doctrine upon which CBIA relies derive from the United States Supreme Court’s decisions in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [ 97 L.Ed.2d 677 , 107 S.Ct. 3141 ] (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 [ 129 L.Ed.2d 304 , 114 S.Ct. 2309 ] (Dolan).

2015(See, e.g., Perry v. Sindermann (1972) 408 U.S. 593, 597-598 [ 33 L.Ed.2d 570 , 92 S.Ct. 2694 ]; Pickering v. Board of Education (1968) 391 U.S. 563, 568 [ 20 L.Ed.2d 811 , 88 S.Ct. 1731 ].) In the takings context, the special limitations imposed by the unconstitutional conditions doctrine upon which CBIA relies derive from the United States Supreme Court’s decisions in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [ 97 L.Ed.2d 677 , 107 S.Ct. 3141 ] (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 [ 129 L.Ed.2d 304 , 114 S.Ct. 2309 ] (Dolan).

2023Such interference with constitutional rights is impermissible.” (Perry v. Sindermann (1972) 408 U.S. 593, 597 ; see also California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 457 [“As a general matter, the unconstitutional conditions doctrine imposes special restrictions upon the government’s otherwise broad authority to condition the grant of a privilege or benefit when a proposed condition requires the individual to give up or refrain from exercising a constitutional right”].) The doctrine, “vindicates the Constitution’s enumerated rights by preventing the government

2015(See, e.g., Perry v. Sindermann (1972) 408 U.S. 593, 597-598 [ 33 L.Ed.2d 570 , 92 S.Ct. 2694 ]; Pickering v. Board of Education (1968) 391 U.S. 563, 568 [ 20 L.Ed.2d 811 , 88 S.Ct. 1731 ].) In the takings context, the special limitations imposed by the unconstitutional conditions doctrine upon which CBIA relies derive from the United States Supreme Court’s decisions in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [ 97 L.Ed.2d 677 , 107 S.Ct. 3141 ] (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 [ 129 L.Ed.2d 304 , 114 S.Ct. 2309 ] (Dolan).

2025(Ibid. [describing permit conditions of this nature --conditions that insist landowners “internalize the negative externalities of their conduct”--as “a hallmark of responsible land-use policy,” and noting that the Supreme Court has “long sustained such regulations against constitutional attack”]; see also Sheetz, supra, 601 U.S. at p. 275 11 [observing that the “government is entitled to put the landowner to the choice of accepting the bargain or abandoning the proposed development”].) But the Supreme Court has found that permitting conditions may sometimes go too far and make extortionate de

2024Courts have found the right to compensation under the federal takings clause triggered when the government “ ‘physically appropriat[es]’ property or otherwise interfere[s] with the owner’s right to exclude others from it.” (Sheetz v. County of El Dorado (2024) 601 U.S. 267, 274 (Sheetz).) Courts have found likewise when the government imposes use restrictions that “sap[] too much of the property’s value or frustrate[] the owner’s investment-backed expectations.” (Ibid.) And relying on the unconstitutional conditions doctrine, courts have found the government violates the federal takings clause

2015(See, e.g., Perry v. Sindermann (1972) 408 U.S. 593, 597-598 [ 33 L.Ed.2d 570 , 92 S.Ct. 2694 ]; Pickering v. Board of Education (1968) 391 U.S. 563, 568 [ 20 L.Ed.2d 811 , 88 S.Ct. 1731 ].) In the takings context, the special limitations imposed by the unconstitutional conditions doctrine upon which CBIA relies derive from the United States Supreme Court’s decisions in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [ 97 L.Ed.2d 677 , 107 S.Ct. 3141 ] (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 [ 129 L.Ed.2d 304 , 114 S.Ct. 2309 ] (Dolan).

2015(See, e.g., Perry v. Sindermann (1972) 408 U.S. 593, 597-598 [ 33 L.Ed.2d 570 , 92 S.Ct. 2694 ]; Pickering v. Board of Education (1968) 391 U.S. 563, 568 [ 20 L.Ed.2d 811 , 88 S.Ct. 1731 ].) In the takings context, the special limitations imposed by the unconstitutional conditions doctrine upon which CBIA relies derive from the United States Supreme Court’s decisions in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [ 97 L.Ed.2d 677 , 107 S.Ct. 3141 ] (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 [ 129 L.Ed.2d 304 , 114 S.Ct. 2309 ] (Dolan).

2015(See Lingle, supra, at pp. 546-547; Monterey v. Del Monte Dunes at Monterey, Ltd. (1999) 526 U.S. 687, 702 [ 143 L.Ed.2d 882 , 119 S.Ct. 1624 ] [“[W]e have not extended the rough-proportionality test of Dolan beyond the special context of exactions — land-use decisions conditioning approval of development on the dedication of property to public use.”].) In the present case, contrary to CBIA’s contention, the San Jose inclusionary housing ordinance does not violate the unconstitutional conditions doctrine because there is no exaction — the ordinance does not require a developer to give up a pro

2015(See Lingle, supra, at pp. 546-547; Monterey v. Del Monte Dunes at Monterey, Ltd. (1999) 526 U.S. 687, 702 [ 143 L.Ed.2d 882 , 119 S.Ct. 1624 ] [“[W]e have not extended the rough-proportionality test of Dolan beyond the special context of exactions — land-use decisions conditioning approval of development on the dedication of property to public use.”].) In the present case, contrary to CBIA’s contention, the San Jose inclusionary housing ordinance does not violate the unconstitutional conditions doctrine because there is no exaction — the ordinance does not require a developer to give up a pro

2016(Danskin v. San Diego Unified School Dist. (1946) 28 Cal.2d 536, 554 [ 171 P.2d 885 ] [constitutional right to free speech and assembly]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 502-503 [ 55 Cal.Rptr. 401 , 421 P.2d 409 ] [constitutional right to free speech]; Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [ 211 Cal.Rptr. 398 , 695 P.2d 695 ] [constitutional right to privacy].) These cases addressed the unconstitutional conditions doctrine which holds that where the “receipt of a public benefit is conditioned upon the waiver of a constitutional right, the ‘gover

2016(Danskin v. San Diego Unified School Dist. (1946) 28 Cal.2d 536, 554 [ 171 P.2d 885 ] [constitutional right to free speech and assembly]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 502-503 [ 55 Cal.Rptr. 401 , 421 P.2d 409 ] [constitutional right to free speech]; Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [ 211 Cal.Rptr. 398 , 695 P.2d 695 ] [constitutional right to privacy].) These cases addressed the unconstitutional conditions doctrine which holds that where the “receipt of a public benefit is conditioned upon the waiver of a constitutional right, the ‘gover

2019Inc. (2005) 544 U.S. 528, 536-537 .).) One instance in which a violation of the takings clause may occur is "[u]nder the well-settled doctrine of 'unconstitutional conditions,' " under which "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." (Dolan v. City of Tigard (1994) 512 U.S. 374, 385 .) Although the Lindstroms' takings clause argument is not

2015Inc. (2005) 544 U.S. 528, 547 [ 161 L.Ed.2d 876 , 125 S.Ct. 2074 ] (Lingle) [Nollan and Dolan both involved “dedications of property so onerous that, outside the exactions context, they would be deemed per se physical takings”].) Nothing in Koontz suggests that the unconstitutional conditions doctrine under Nollan and Dolan would apply where the government simply restricts the use of property without demanding the conveyance of some identifiable protected property interest (a dedication of property or the payment of money) as a condition of approval.

2025(Id. at pp. 252, 254– 255, 263.) The court rejected the plaintiffs’ argument based on the unconstitutional conditions doctrine because it concluded “the doctrine, with its attendant Nollan/Dolan test, generally is not applied to facial challenges.” (Id. at p. 267, italics omitted.) It relied in part on Action Apartment Assn. v. City of Santa Monica (2008) 166 Cal.App.4th 456, 470 , which in turn followed San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 670 , to hold that the Nollan/Dolan test governed only individual adjudicative permit approval decisions and fees, not

2018However, another limitation on the applicability of the unconstitutional conditions doctrine to takings claims is that the doctrine, with its attendant Nollan / Dolan test, generally is not applied to facial challenges. ( Action Apartment Ass'n v. City of Santa Monica (2008) 166 Cal.App.4th 456 , 470, 82 Cal.Rptr.3d 722 ( Action Apartment ) [" Nollan / Dolan test developed for use in land exaction takings litigation applies only in the case of individual adjudicative permit approval decisions; not to generally applicable legislative general zoning decisions."].) The Action Apartment court affi

2022(Ballinger v. City of Oakland (2022) 24 F.4th 1287, 1299 [concluding that “ ‘[w]hat 16 matters for purposes of Nollan and Dolan is not who imposes an exaction, but what the exaction does’ ”].) Cedar Point is distinguishable.

2019As the Supreme Court has explained, " 'while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.' " (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1014 (Lucas).) Although " 'regulatory takings' jurisprudence [has] generally eschewed any ' "set formula" ' for determining how far is too far, preferring to 'engag[e] in . . . essentially ad hoc, factual inquiries' " there are "at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the

2016(Danskin v. San Diego Unified School Dist. (1946) 28 Cal.2d 536, 554 [ 171 P.2d 885 ] [constitutional right to free speech and assembly]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 502-503 [ 55 Cal.Rptr. 401 , 421 P.2d 409 ] [constitutional right to free speech]; Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [ 211 Cal.Rptr. 398 , 695 P.2d 695 ] [constitutional right to privacy].) These cases addressed the unconstitutional conditions doctrine which holds that where the “receipt of a public benefit is conditioned upon the waiver of a constitutional right, the ‘gover

2016(Danskin v. San Diego Unified School Dist. (1946) 28 Cal.2d 536, 554 [ 171 P.2d 885 ] [constitutional right to free speech and assembly]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 502-503 [ 55 Cal.Rptr. 401 , 421 P.2d 409 ] [constitutional right to free speech]; Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [ 211 Cal.Rptr. 398 , 695 P.2d 695 ] [constitutional right to privacy].) These cases addressed the unconstitutional conditions doctrine which holds that where the “receipt of a public benefit is conditioned upon the waiver of a constitutional right, the ‘gover

2016(Danskin v. San Diego Unified School Dist. (1946) 28 Cal.2d 536, 554 [ 171 P.2d 885 ] [constitutional right to free speech and assembly]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 502-503 [ 55 Cal.Rptr. 401 , 421 P.2d 409 ] [constitutional right to free speech]; Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [ 211 Cal.Rptr. 398 , 695 P.2d 695 ] [constitutional right to privacy].) These cases addressed the unconstitutional conditions doctrine which holds that where the “receipt of a public benefit is conditioned upon the waiver of a constitutional right, the ‘gover

2016(Danskin v. San Diego Unified School Dist. (1946) 28 Cal.2d 536, 554 [ 171 P.2d 885 ] [constitutional right to free speech and assembly]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 502-503 [ 55 Cal.Rptr. 401 , 421 P.2d 409 ] [constitutional right to free speech]; Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [ 211 Cal.Rptr. 398 , 695 P.2d 695 ] [constitutional right to privacy].) These cases addressed the unconstitutional conditions doctrine which holds that where the “receipt of a public benefit is conditioned upon the waiver of a constitutional right, the ‘gover

2015In maintaining its contrary view that the San Jose inclusionary housing requirement constitutes an exaction that compels a developer to convey a property interest to the city as a condition of development, CBIA relies primarily upon the discussion of exactions in this court’s recent decision in Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193, 1207 [ 163 Cal.Rptr.3d 2 , 310 P.3d 925 ] (Sterling Park), a case which also involved an affordable housing ordinance.

2015In maintaining its contrary view that the San Jose inclusionary housing requirement constitutes an exaction that compels a developer to convey a property interest to the city as a condition of development, CBIA relies primarily upon the discussion of exactions in this court’s recent decision in Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193, 1207 [ 163 Cal.Rptr.3d 2 , 310 P.3d 925 ] (Sterling Park), a case which also involved an affordable housing ordinance.

2015(See, e.g., Yee v. Escondido (1992) 503 U.S. 519, 532 [ 118 L.Ed.2d 153 , 112 S.Ct. 1522 ] (Yee) [describing mobilehome park rent control ordinance as “a regulation of [the mobile-home park owners’] use of their property”].) Contrary to CBIA’s contention, such a requirement does not constitute an exaction for purposes of the Nollan/Dolan line of decisions and does not trigger application of the unconstitutional conditions doctrine.

2015(See, e.g., Yee v. Escondido (1992) 503 U.S. 519, 532 [ 118 L.Ed.2d 153 , 112 S.Ct. 1522 ] (Yee) [describing mobilehome park rent control ordinance as “a regulation of [the mobile-home park owners’] use of their property”].) Contrary to CBIA’s contention, such a requirement does not constitute an exaction for purposes of the Nollan/Dolan line of decisions and does not trigger application of the unconstitutional conditions doctrine.