We see ourselves as a humble servant of the Lord and their Lordships, who imbibes wisdom from their opinions, none being more authoritative than the times when SCOTUS lays down the law of the land. And so, we always thought — at least since 1987 when their Lordships spoke — that to pass constitutional muster in inverse condemnation/exaction cases it is necessary for the government to establish an essential nexus between a private development activity and its impact on public resources. Right? Like it says in Justice Scalia’s opinion in Nollan v. California Coastal Commission, 483 U.S. 825 (1987). That means that there must be a nexus, or connection, between the private land owner’s development activity and its impact on public resources, sufficient to justify a demand by the government that the owner give up something (typically land) in exchange for being permitted to proceed with his private activity that produces that negative impact.
We thought that by now this was a “well settled” point of law, as lawyers like to put it.
So imagine our surprise when we came across a sentence in a more recent SCOTUS opinion in which — who else? — Justice Scalia delivered himself of the following line: “‘Substantial nexus’ is novel legalese with no established meaning in the present context.” Pacific Operations. Offshore Operations v. Valladolid, 2012, U.S. Lexis 577.
So it turns out that the word “nexus” may or may not have any meaning, depending on the context. We hope it retains meaning in the exaction/taking context. But then again, who can tell?
Go figure.