Amicus Brief: Sheetz v. El Dorado

Under the Fifth Amendment, the government can't take private property except for public use and with just compensation. But there are a lot of creative ways that the government can "take" private property. Sometimes, it puts conditions on getting a permit, such as building a public park or paying to mitigate environmental harms. Those can be an unconstitutional taking if the requirements are remote and disproportionate. 

George Sheetz wanted to build a home, but the city told him he'd need to pay over $20,000 as a "traffic mitigation fee." He sued and his case went all the way to the Supreme Court (and MI also filed an amicus brief), where he won. Now he's back at the Supreme Court on the question of how the city calculated his fee. 

The Manhattan Institute has joined the Texas Public Policy Foundation, the National Federation of Independent Business, and the Southeastern Legal Foundation on a brief supporting Mr. Sheetz. The city calculated his fee on class basis (i.e. applied to all single-family homes) rather than on a specific, individualized basis. We argue that the Takings Clause requires individualized fees. This is simply because such fees are tied to real-world impacts—such as the real environmental harm of a specific property rather than the class of all such properties. That is confirmed by the history and purpose of the Takings Clause, which is to make the government account for and compensate for the actual restrictions and confiscations of private property. The Supreme Court should again take Mr. Sheetz's case to clarify this confusion.

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

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

Photo: Lajst / E+ via Getty Images