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Property Rights Get a Boost From Supreme Court Decision


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A California landowner won his challenge to the constitutionality of a fee a California county charged him to obtain a building permit on Friday. In 2016, George Sheetz of Placerville, CA, attempted to build a home on a parcel of land he owned. When he applied for a building permit, he was gobsmacked to learn that in addition to typical fees, he had to pony up $24,000 for a "traffic impact mitigation fee." A unanimous Supreme Court agreed with Sheetz that the "mitigation" fees he had been assessed ran afoul of the Fifth Amendment's "Takings" clause and had to be determined on a case-by-case and directly related to the work necessary to offset the impact of a project



Justice Amy Coney Barrett, writing for the court, said that impact fees had to be tailored to address a problem and couldn't be attached to a certain property type.

The state courts declined Sheetz’s suggestion. They concluded that the Nollan/Dolan test only applies to fees imposed on an individual basis, rather than fees – like the traffic impact mitigation fee – authorized by legislation.

The Supreme Court on Friday disagreed. In her 11-page opinion for a unanimous court, Barrett explained that nothing in the text of the Constitution indicates that the takings clause does not apply to fees imposed by legislatures. The same is true, she continued, for the history of the takings clause. “In fact,” she wrote, “special deference for legislative takings would have made little sense historically, because legislation was the conventional way that governments exercised their eminent domain power.” Nor, she added, do the Supreme Court’s cases interpreting the takings clause distinguish in any way “between legislation and other official acts.”

Barrett emphasized that the court’s ruling did not resolve some of the other issues raised by Sheetz’s challenge regarding the validity of the fee – “including whether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.” The state appeals court did not weigh in on this or other unresolved questions, Barrett explained, because it “proceeded from the erroneous premise that legislative permit conditions are categorically exempt from the requirements of Nollan and Dolan.” “Whether the parties’ other arguments are preserved and how they bear on Sheetz’s legal challenge are,” Barrett concluded, “for the state courts to consider in the first instance.”


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