Amicus Brief: Sheetz v. County of El Dorado

George Sheetz applied to the County of El Dorado, California, for a permit to build a modest house on his property. As a condition of obtaining the permit, he was required to pay a monetary exaction of $23,420 to help finance unrelated road improvements. The county demanded payment even though it made no individualized determination that the exaction—a substantial sum for Mr. Sheetz—bore an “essential nexus” and “rough proportionality” to the purported impacts associated with his project, as required by the Supreme Court in its now-canonical Nollan (1987) and Dolan (1994) cases.

After Sheetz challenged the exaction, a California trial court held that, because it was authorized by legislation (county ordinance), it was immune from Nollan/Dolan review. The court of appeals affirmed, and the state supreme court declined review. So, it seems that California has judicially created an exemption from constitutional scrutiny of legislative exactions, in conflict with a slew of federal and state courts.

Sheetz asked the U.S. Supreme Court to take his case and MI joined four other organizations on a supporting amicus brief. We argued that the plain text of the Fifth Amendment Takings Clause protects property rights regardless of which branch of government is involved and that there’s no ill effect from providing judicial review of legislative exactions. The Supreme Court took the case, unanimously vacated the lower court’s ruling, and remanded for Nollan/Dolan review, precisely because the Takings Clause doesn’t distinguish between legislative and administrative land-use permit conditions. As Justice Barrett wrote for the Court, “Nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules.”

Now back before the California court of appeals, MI has joined the Citizen Action Defense Fund and groups of builders and property owners on a brief arguing that (1) invalidating this exaction won’t negatively impact the capacity of other jurisdictions to impose constitutional mitigation fees and (2) undue exactions greatly exacerbate America’s ever-worsening housing crisis.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Photo: Peter Cade / Stone via Getty Images