Amicus Curiae Brief — William A. Dabbs, Jr., Petitioner v. Anne Arundel County, Maryland

No. 18-54

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------WILLIAM A. DABBS, JR.,

Petitioner,

v.

ANNE ARUNDEL COUNTY, MARYLAND,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Maryland

-----------------------------------------------------------------BRIEF OF AMICI CURIAE

SOUTHEASTERN LEGAL FOUNDATION,

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL CENTER,

AND THE BEACON CENTER OF TENNESSEE

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------KAREN R. HARNED

LUKE A. WAKE

NFIB SMALL BUSINESS

LEGAL CENTER

1201 F St., N.W.,

Ste. 200

Washington, D.C. 20004

BRADEN BOUCEK

THE BEACON CENTER

OF TENNESSEE

P.O. Box 198646

Nashville, TN 37219

KIMBERLY S. HERMANN

Counsel of Record

SOUTHEASTERN LEGAL

FOUNDATION

2255 Sewell Mill Rd.,

Ste. 320

Marietta, GA 30062

(770) 977-2131

khermann@

southeasternlegal.org

Counsel for Amici Curiae

August 8, 2018

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether legislatively proscribed monetary exactions on land use development are subject to scrutiny

under the unconstitutional conditions doctrine as set

out in Koontz v. St. Johns River Water Management

District, 570 U.S. 595 (2013); Dolan v. City of Tigard,

512 U.S. 374 (1994); and Nollan v. California Coastal

Commission, 483 U.S. 825 (1987).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF CONTENTS ......................................

ii

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I.

Introduction ...............................................

4

II.

Only this Court can provide the clarity

needed to protect the constitutional right

to just compensation and to resolve the

deep split of authority over the standard

for reviewing legislatively-imposed exactions ...........................................................

8

A. A growing number of lower courts improperly refuse to apply Nollan and

Dolan simply because the government

imposes the unconstitutional condition by a legislative act rather than

through an adjudicatory process ......... 10

B. Unless this Court provides additional

guidance on the applicability of Nollan

and Dolan to legislatively-imposed

conditions, the split will continue to

deepen .................................................. 12

CONCLUSION..................................................... 17

iii

TABLE OF AUTHORITIES

Page

CASES

44 Liquormart Inc. v. Rhode Island, 517 U.S. 484

(1996) .........................................................................7

Alto Eldorado P’ship v. Cty. of Santa Fe, 634 F.3d

1170 (10th Cir. 2011) ...............................................13

Arcadia Dev. Corp. v. City of Bloomington, 552

N.W.2d 281 (Minn. Ct. App. 1996) ..........................14

Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct.

1807 (2016) ................................................................1

Cal. Bldg. Indus. Ass’n v. City of San Jose, 61

Cal. 4th 435 (2015) ..................................................13

Cal. Bldg. Indus. Ass’n v. City of San Jose, 136

S. Ct. 928 (2016) ............................................ 3, 16, 17

City of Portsmouth v. Schlesinger, 57 F.3d 12 (1st

Cir. 1995) .................................................................15

Commercial Builders of N. Cal. v. City of Sacramento, 941 F.2d 872 (9th Cir. 1991) ........................15

Common Sense All. v. Growth Mgmt. Hearings

Bd., 2015 Wash. App. LEXIS 1908 (Aug. 10,

2015) ........................................................................14

Curtis v. Town of S. Thomaston, 708 A.2d 657

(Me. 1998) ................................................................15

Dolan v. City of Tigard, 512 U.S. 374 (1994) ...... passim

Frost & Frost Trucking Co. v. R.R. Comm’n, 271

U.S. 583 (1926) ...................................................... 5, 8

Harris v. City of Wichita, 862 F. Supp. 287 (D.

Kan. 1994) ......................................................... 10, 11

iv

TABLE OF AUTHORITIES – Continued

Page

Home Builders Ass’n of Cent. Ariz. v. Scottsdale,

930 P.2d 993 (Ariz. 1997) ........................................14

Home Builders Ass’n of Dayton and Miami Valley v. City of Beavercreek, 729 N.E.2d 349

(Ohio 2000) ..............................................................15

Koontz v. St. Johns River Water Mgmt. Dist., 133

S. Ct. 2586 (2013) ............................................ passim

Krupp v. Breckenridge Sanitation Dist., 19 P.3d

687 (Colo. 2001) .......................................................14

Levin v. City and Cty. of San Francisco, 71

F. Supp. 3d 1072 (N.D. Cal. 2014) ...........................16

Lingle v. Chevron U.S.A., Inc., 544 U.S. 528

(2005) ..................................................................... 4, 6

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ...................................................4

Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992) ........................................................1

Manocherian v. Lenox Hill Hosp., 643 N.E.2d

479 (N.Y. 1994) .................................................. 10, 11

Mead v. City of Cotati, 389 Fed. App’x 637 (9th

Cir. 2010) .................................................................13

Nat’l Ass’n of Home Builders v. Chesterfield Cty.,

907 F. Supp. 166 (E.D. Va. 1995) .............................16

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825

(1987) ............................................................... passim

N. Ill. Home Builders Ass’n, Inc. v. Cty. of Du

Page, 649 N.E.2d 384 (Ill. 1995)..............................15

v

TABLE OF AUTHORITIES – Continued

Page

Parking Ass’n of Ga., Inc. v. City of Atlanta, 450

S.E.2d 200 (Ga. 1994) .................................. 10, 11, 12

Parking Ass’n of Ga., Inc. v. City of Atlanta, 515

U.S. 1116 (1995) .................................................. 9, 10

Penn Central Transp. v. New York City, 438 U.S.

104 (1978) ................................................................13

Perry v. Sindermann, 408 U.S. 593 (1972) ...................9

Regan v. Taxation with Representation of Wash.,

461 U.S. 540 (1983) ...................................................9

Rumsfeld v. Forum for Acad. & Inst. Rights, Inc.,

547 U.S. 47 (2006) .....................................................9

San Mateo Cty. Coastal Landowners’ Ass’n v. Cty.

of San Mateo, 38 Cal. App. 4th 523 (1995) .............. 13

San Remo Hotel L.P. v. City and Cty. of San

Francisco, 41 P.3d 87 (Cal. 2002) ............................14

Spinell Homes, Inc. v. Mun. of Anchorage, 78

P.3d 692 (Alaska 2003)............................................13

St. Clair Cty. Home Builders Ass’n v. City of Pell

City, 61 So. 3d 992 (Ala. 2010) ................................13

Stop the Beach Renourishment v. Florida Dep’t

of Envtl. Prot., 560 U.S. 702 (2012) ...........................7

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S.

725 (1997) ..................................................................1

Town of Flower Mound v. Stafford Estates Ltd.

P’ship, 135 S.W.3d 620 (Tex. 2004) .........................15

vi

TABLE OF AUTHORITIES – Continued

Page

Trimen Dev. Co. v. King Cty., 877 P.2d 187 (Wash.

1994) .................................................................. 10, 11

United States v. Am. Library Ass’n, Inc., 539 U.S.

194 (2003) ..................................................................8

CONSTITUTIONAL PROVISION

U.S. Const. amend. V ............................................ 2, 4, 6

RULE

Sup. Ct. R. 37.2(a) .........................................................1

Sup. Ct. R. 37.6 .............................................................1

OTHER AUTHORITIES

Luke A. Wake & Jarod M. Bona, Legislative Exactions After Koontz v. St. Johns River Management, 27 Geo. Int’l Envtl. L. Rev. 539 (2015) .............. 6

Richard A. Epstein, Bargaining with the State

(1993) .........................................................................5

1

INTEREST OF AMICI CURIAE1

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public interest law firm

and policy center that advocates constitutional individual liberties, limited government, and free enterprise in the courts of law and public opinion. SLF

drafts legislative models, educates the public on key

policy issues, and litigates often before the Supreme

Court.

For 40 years, SLF has advocated for the protection

of private property interests from unconstitutional

governmental takings. SLF regularly represents property owners challenging overreaching government actions in violation of their property rights. Additionally,

SLF frequently files amicus curiae briefs in support of

property owners. See, e.g., Army Corps of Eng’rs v.

Hawkes Co., 136 S. Ct. 1807 (2016); Suitum v. Tahoe

Reg’l Planning Agency, 520 U.S. 725 (1997); Dolan v.

City of Tigard, 512 U.S. 374 (1994); and Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992).

The National Federation of Independent Business

Small Business Legal Center (NFIB Legal Center) is a

nonprofit, public interest law firm established to provide legal resources and be the voice for small

1

No counsel for a party has authored this brief in whole or

in part, and no person other than amici curiae, its members, and

its counsel has made a monetary contribution to the preparation

or submission of this brief. See Sup. Ct. R. 37.6. All parties were

notified of amici curiae’s intention to file this brief at least 10 days

prior to the filing of this brief. Petitioner and Respondent have

consented to the filing of this brief. See Sup. Ct. Rule 37.2(a).

2

businesses in the nation’s courts through representation on issues of public interest affecting small businesses. The NFIB is the nation’s leading small

business association, representing members in Washington, D.C., and all 50 state capitals. Founded in 1943

as a nonprofit, nonpartisan organization, NFIB’s mission is to promote and protect the right of its members

to own, operate, and grow their businesses. To fulfill its

role as the voice for small business, the NFIB Legal

Center frequently files amicus briefs in cases that affect small businesses.

The Beacon Center of Tennessee is a nonprofit

organization based in Nashville, Tennessee that advocates for free-market policy solutions within Tennessee. Property rights and constitutional limits on

government mandates are central to its goals.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

A government may not require a person to give up

a constitutional right as a condition of conferring a discretionary government benefit. The “unconstitutional

conditions doctrine” protects private property owners

from being forced to surrender their Fifth Amendment

right to just compensation to obtain a building permit,

a variance, or other government benefit related to their

property. Under the tests set forth by this Court in Nollan v. California Coastal Commission, 483 U.S. 825

(1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994),

a “government may not condition the approval of a

3

land-use permit on the owner’s relinquishment of a

portion of his property unless there is a ‘nexus’ and

‘rough proportionality’ between the government’s demand and the effects of the proposed land use.” Koontz

v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586,

2591 (2013).

This Court applies the unconstitutional conditions

doctrine to conditions imposed both legislatively

and administratively. In fact, the conditions at issue in

Nollan, Dolan, and Koontz, all of which this Court

found unconstitutional, were legislatively-imposed

conditions. See Nollan, 483 U.S. at 828-30; Dolan, 512

U.S. at 377-78; Koontz, 133 S. Ct. at 2591-93. Ignoring

this Court’s precedent, more and more lower courts, including in the present case, refuse to apply the heightened scrutiny mandated by Nollan and Dolan to

legislatively-imposed conditions. This deepening split

of authority allows the government to evade proper

constitutional review, casts a cloud on governmental

actions, and even worse, results in the unconstitutional

taking of property without just compensation.

Amici write separately because the division

among the lower courts “shows no signs of abating.”

Cal. Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct.

928, 928 (2016) (Thomas, J., dissental). The conflict

among the lower courts leaves private property owners

and courts struggling to determine the level of scrutiny

applicable to legislatively-imposed conditions and provides state and local governments with a roadmap for

evading the Constitution. By granting certiorari, this

Court can resolve the split and provide the resolution

4

needed to protect and preserve those property rights

guaranteed by the Fifth Amendment.

------------------------------------------------------------------

ARGUMENT

I.

Introduction.

The Fifth Amendment to the United States Constitution prohibits the government from taking private

property without just compensation. U.S. Const.

amend. V. There are three primary taking doctrines:

physical takings, regulatory takings, and takings

based on the unconstitutional conditions doctrine.

Thus, a taking occurs when the government (1) directly

appropriates or physically invades private property (a

physical taking), Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 432-33 (1982); (2) enacts or

applies a regulation that is “so onerous that its effect

is tantamount to a direct appropriation or ouster” (a

regulatory taking), Lingle v. Chevron U.S.A., Inc., 544

U.S. 528, 536-37 (2005); or (3) places conditions on a

property owner’s right to use or build on her property

that lack any reasonable relationship to the development (an unconstitutional condition, or an exaction),

Koontz, 133 S. Ct. at 2591; Dolan, 512 U.S. 374; Nollan,

483 U.S. 825.

In its most basic formulation, the unconstitutional

conditions doctrine provides that a government may

not require a person to give up a constitutional right

in exchange for a discretionary government benefit.

In the seminal unconstitutional conditions case, the

5

United States Supreme Court held that a government

may not do indirectly that which it could not accomplish directly:

[T]he power of the state [ . . . ] is not unlimited; and one of the limitations is that it may

not impose conditions which require relinquishment of constitutional rights. If the state

may compel the surrender of one constitutional right as a condition of its favor, it may,

in like manner, compel a surrender of all. It is

inconceivable that guarantees embedded in

the Constitution of the United States may

thus be manipulated out of existence.

Frost & Frost Trucking Co. R.R. Comm’n, 271 U.S. 583,

594 (1926) (striking down a California statute that unconstitutionally conditioned the right of commercial

carriers to operate on public highways). The “doctrine

holds that even if a state has absolute discretion to

grant or deny any individual a privilege or benefit, it

cannot grant the privilege subject to conditions that

improperly ‘coerce,’ ‘pressure,’ or ‘induce’ the waiver of

that person’s constitutional rights.” Richard A. Epstein, Bargaining with the State 5 (1993). And courts

have invoked the unconstitutional conditions doctrine

in a wide range of cases where the government sought

to trade a discretionary benefit for a person’s right to

free speech, right to freedom of religion, right to equal

protection, and right to due process of law. Id. at 9-10

(discussing and citing unconstitutional condition doctrine cases).

6

Through Nollan, Dolan, and Koontz, this Court

made clear that the unconstitutional conditions doctrine also applies to protect property rights against coerced waivers. Lingle, 544 U.S. at 547 (explaining, in a

unanimous opinion, that the tests set forth in Nollan

and Dolan constitute a “special application” of the unconstitutional conditions doctrine). Under the Nollan

and Dolan tests, a government cannot condition the

grant or denial of a land-use permit, or in this case a

“development entitlement,” on the relinquishment of

another right unless it can show that there is both a

“nexus” and “rough proportionality” between its demand and the effects of the proposed land use. Koontz,

133 S. Ct. at 2591. “Extortionate demands for property

in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have

property taken without just compensation.” Id. at

2596. As this Court explained, the unconstitutional

conditions doctrine recognizes a constitutional injury

where a government forces a property owner to choose

“between (a) foregoing development opportunities,

while preserving Fifth Amendment rights and (b) sacrificing those rights in order to obtain authorization to

carry out development.” Luke A. Wake & Jarod M.

Bona, Legislative Exactions After Koontz v. St. Johns

River Management, 27 Geo. Int’l Envtl. L. Rev. 539, 569

(2015). A finding that such a condition is unconstitutional is the equivalent of finding that such a demand

“amount[s] to a per se taking[.]” Koontz, 133 S. Ct. at

2600 (citing Dolan, 512 U.S. at 384; Nollan, 483 U.S. at

831).

7

Here, as in Nollan, Dolan, and Koontz, the “condition” imposed by the government comes in the form of

a required dedication of private property for a public

use. And, as in Nollan, Dolan, and Koontz, the “condition” here is imposed in accordance with a legislative

enactment. See Nollan, 483 U.S. at 828-30 (state law

requiring dedication of beachfront property for a public

access point as a condition to obtain a development

permit); Dolan, 512 U.S. at 377-78 (city land-use planning ordinance requiring dedication of property for a

bike path and greenway as a condition to obtain a permit); Koontz, 133 S. Ct. at 2591-93 (state law requiring

an in-lieu fee as a condition to obtain a development

permit for land designated as wetlands).

A property owner’s constitutional right should not

hinge on whether the government violates that right

through a legislative act versus an administrative one.

See Stop the Beach Renourishment v. Florida Dep’t of

Envtl. Prot., 560 U.S. 702 (2012) (emphasizing that the

Takings Clause is unconcerned with which “particular

state actor is” burdening property rights).2 To be sure,

the Court has always applied the unconstitutional conditions doctrine just the same when reviewing conditions imposed by statute. See, e.g., 44 Liquormart Inc.

v. Rhode Island, 517 U.S. 484, 512-13 (1996) (striking

2

The Takings Clause applies equally to all coordinate

branches of state government under the Fourteenth Amendment.

Therefore, it cannot be that the Takings Clause imposes a different standard of review for actions violative of property rights

when carried out by a legislative body where that same action

would constitute a taking where carried out by an administrative

agency.

8

down a statute conditioning the right to do business on

waiver of constitutional rights); United States v. Am.

Library Ass’n, Inc., 539 U.S. 194 (2003) (conditioning

receipt of government funds on waiver of rights). Indeed, in the seminal unconstitutional conditions case,

this Court struck down a California statute that unconstitutionally conditioned the right of commercial

carriers to operate on public highways. Frost & Frost

Trucking Co., 271 U.S. at 594 (“It is inconceivable that

guaranties embedded in the Constitution of the United

States may thus be manipulated out of existence.”).

Nonetheless, the lower court here refused to apply

Nollan and Dolan scrutiny simply because Anne Arundel County imposed the permit condition legislatively,

rather than administratively. The Maryland Court of

Appeal is not the first to make this improper distinction and to ignore this Court’s unconstitutional conditions doctrine jurisprudence. Instead, this is one more

decision contributing to an ever-deepening split of authority on this issue.

II.

Only this Court can provide the clarity

needed to protect the constitutional right to

just compensation and to resolve the deep

split of authority over the standard for reviewing legislatively-imposed exactions.

More and more lower courts are dispensing with

Nollan and Dolan scrutiny simply because the government imposed the unconstitutional condition by a

legislative act rather than through a discretionary

9

administrative process. Even though the “distinction

between sweeping legislative takings and particularized administrative takings appears to be a distinction

without a constitutional difference,” Parking Ass’n of

Ga., Inc. v. City of Atlanta, 515 U.S. 1116, 1117-18

(1995) (Thomas, J., joined by O’Connor, J., dissenting

from denial of certiorari), the rejection of Nollan and

Dolan’s heightened scrutiny creates several conflicts

that warrant this Court’s attention.

The first and most obvious is the direct conflict

with this Court’s precedent set forth in Nollan and Dolan, and recently reaffirmed in Koontz – cases which

all involved conditions imposed through a legislative

act. The second is the conflict with this Court’s precedent as it relates to the unconstitutional conditions

doctrine generally, and the lack of support for distinguishing between legislative and adjudicative acts.3

The third is the growing conflict among the lower

courts, both state and federal.

3

This Court has consistently applied the unconstitutional

conditions doctrine to both legislatively- and administratively-imposed conditions without regard to the condition’s origin. See, e.g.,

Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 5960 (2006) (applying doctrine to a legislatively-imposed condition

without regard to its origin); Regan v. Taxation with Representation of Wash., 461 U.S. 540, 545 (1983) (same); Perry v. Sindermann, 408 U.S. 593 (1972) (applying doctrine to administrativelyimposed condition without regard to its origin).

10

A. A growing number of lower courts improperly refuse to apply Nollan and

Dolan simply because the government

imposed the unconstitutional condition by a legislative act rather than

through an adjudicatory process.

In 1995, just one year after this Court’s opinion in

Dolan, in a dissent from a denial of certiorari, Justice

Thomas acknowledged that the lower courts were already “in conflict over whether [Dolan’s] test for property regulation should be applied in cases where the

alleged taking occurs through an act of the legislature.” Parking Ass’n of Ga., 515 U.S. at 1117. Just a few

months after Dolan, at least four lower courts disagreed about its application, with two applying the

nexus and rough proportionality test to legislative takings and two refusing to do so. Compare Harris v. City

of Wichita, 862 F. Supp. 287, 294 (D. Kan. 1994) (denying motion for reconsideration) (declining to apply Dolan because case involved legislative regulatory taking

rather than an adjudicative one), and Parking Ass’n of

Ga. v. City of Atlanta, 450 S.E.2d 200, 203 (Ga. 1994)

(same), with Trimen Dev. Co. v. King Cty., 877 P.2d 187,

194 (Wash. 1994) (applying Dolan even though challenged ordinance was a legislative enactment), and

Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479, 483

(N.Y. 1994).

In Trimen Development, a developer challenged a

local ordinance requiring developers to dedicate land

for open space or pay a fee in lieu of the dedication as

a condition to obtaining subdivision plat approval. 877

11

P.2d at 188. Less than one month after Dolan, the Supreme Court of Washington applied this Court’s rule to

the ordinance and found a rough proportionality between the dedication or in-lieu fee and the impact of

the proposed development. Id. at 194.

One month later in Manocherian, the Court of Appeals of New York reviewed a property owner’s challenge of a city ordinance that required property owners

to offer renewal leases to not-for-profit hospitals. 643

N.E.2d at 479-80. In doing so, the court applied Nollan

and Dolan, explaining that through them, this Court

“establish[ed] a constitutional minimum floor of protection which [it] lacks authority to diminish under the

Supremacy Clause.” Id. at 482. It continued, noting

there is no evidence “for concluding that the Supreme

Court decided to apply different takings tests” and that

this Court’s takings jurisprudence “suggests and supports a uniform, clear and reasonably definitive standard of review in takings cases.” Id. at 483.

Despite the “uniform, clear and reasonably definitive standard,” a few months later, the District Court

of Kansas expressly declined to apply Dolan because

the condition at issue was imposed legislatively rather

than applied on an ad hoc administrative basis. Harris,

862 F. Supp. at 294. Shortly thereafter, the Supreme

Court of Georgia followed suit and refused to apply the

stricter scrutiny to a group’s challenge of a city ordinance requiring owners of surface parking lots to dedicate portions of their property to create barrier curbs

and landscaping areas. Parking Ass’n of Ga., 450

S.E.2d at 201-02. The court rejected the plaintiff ’s

12

reliance on Dolan, opting instead to apply a test of its

own creation, the significant detriment test. Id. at 203

n.3. However, Justice Sears, joined by Chief Justice

Hunt and Justice Carley, wrote a strong dissent expressing their belief that the court erred in failing to

follow this Court’s takings jurisprudence as set forth

in Nollan and Dolan. Id. at 203-04 (Sears, J., dissenting).

This almost immediate split of authority following

Dolan provided state and local governments with a

roadmap to evade constitutional scrutiny – impose

land-use conditions through legislative enactments rather than through administrative procedures and

avoid meaningful constitutional review. When property owners challenged legislatively-imposed exactions, governmental defendants could, from the

beginning, persuade the court to side with the District

Court of Kansas and the Supreme Court of Georgia

and apply a lower level of scrutiny.

B. Unless this Court provides additional

guidance on the applicability of Nollan

and Dolan to legislatively-imposed conditions, the split will continue to deepen.

Over the last two decades, the split has deepened

and local and state governments continue to evade the

Constitution. For example, the lower courts have found

13

the following conditions valid, under Maryland’s approach.4

4

•

Ordinances requiring dedication of affordable housing units. See Cal. Bldg. Indus. Ass’n v. City of San Jose, 61 Cal. 4th

435, 459 n.11 (2015); Alto Eldorado P’ship

v. Cty. of Santa Fe, 634 F.3d 1170, 1179

(10th Cir. 2011); Mead v. City of Cotati,

389 Fed. App’x 637, 639 (9th Cir. 2010);

•

A county ordinance imposing an agricultural and open space easement on subdivision applicants. See San Mateo Cty.

Coastal Landowners’ Ass’n v. Cty. of San

Mateo, 38 Cal. App. 4th 523, 546-49

(1995);

•

An ordinance imposing landscaping and

street maintenance requirements as a

condition to obtain a permit or certificate

of occupancy. Spinell Homes, Inc. v. Mun.

of Anchorage, 78 P.3d 692, 702 (Alaska

2003);

•

A city ordinance conditioning permit approvals on requirements to pay impact

fees. See St. Clair Cty. Home Builders

Ass’n v. City of Pell City, 61 So. 3d 992,

1007 (Ala. 2010);

•

An ordinance requiring developers to pay

a sanitation permit fee as a condition for

Where Nollan, Dolan, and Kootnz are held inapplicable,

courts typically apply the much more deferential balancing test

set forth in Penn Central Transp. v. New York City, 438 U.S. 104

(1978).

14

development approval. See Krupp v.

Breckenridge Sanitation Dist., 19 P.3d

687, 695-96 (Colo. 2001);

•

A city ordinance imposing a water resources development fee on all new realty

developments. See Home Builders Ass’n of

Cent. Ariz. v. Scottsdale, 930 P.2d 993, 996

(Ariz. 1997);

•

A city ordinance requiring mobile home

park owners who close their parks to pay

displaced tenants. See Arcadia Dev. Corp.

v. City of Bloomington, 552 N.W.2d 281,

286 (Minn. Ct. App. 1996);

•

A city ordinance imposing a fee on hotel

owners as a condition for a permit to reconfigure business to no longer provide

rooms to long-term renters. See San

Remo Hotel L.P. v. City and Cty. of San

Francisco, 41 P.3d 87, 105 (Cal. 2002); and

•

An ordinance requiring property owners

to dedicate a significant portion of their

property as a conservation area as a condition for a permit. Common Sense All. v.

Growth Mgmt. Hearings Bd., 2015 Wash.

App. LEXIS 1908, *17-19 (Aug. 10, 2015).

Had those conditions been administratively-imposed,

those courts would have applied Nollan and Dolan

scrutiny and many of those conditions would have, perhaps, been invalidated.

The severity of the split of authority is readily apparent when one compares these cases and conditions

15

with those that follow. Despite the similarities between

the laws listed above, the courts evaluating the following legislatively-imposed conditions all applied Nollan

and Dolan scrutiny.

5

•

A city ordinance requiring dedication of

affordable housing units. Commercial

Builders of N. Cal. v. City of Sacramento,

941 F.2d 872, 875 (9th Cir. 1991);5

•

Ordinances conditioning permit approvals on requirements to pay impact fees.

See City of Portsmouth v. Schlesinger, 57

F.3d 12, 16 (1st Cir. 1995); Home Builders

Ass’n of Dayton and Miami Valley v. City

of Beavercreek, 729 N.E.2d 349, 355-56

(Ohio 2000);

•

A town ordinance imposing road improvement requirements as a condition to obtain a development permit. See Town of

Flower Mound v. Stafford Estates Ltd.

P’ship, 135 S.W.3d 620, 641 (Tex. 2004);

•

A town ordinance imposing an easement

for fire prevention purposes as a condition for subdivision approval. See Curtis

v. Town of S. Thomaston, 708 A.2d 657,

660 (Me. 1998);

•

State statutes and local ordinances imposing transportation impact fees on new

developments. See N. Ill. Home Builders

The Ninth Circuit applied only Nollan to the affordable

housing ordinance at issue in Commercial Builders because it decided the case several years before Dolan.

16

Ass’n, Inc. v. Cty. of Du Page, 649 N.E.2d

384, 397 (Ill. 1995);

•

A city ordinance requiring property owners to pay a lump sum to displaced tenants as a condition for withdrawing rentcontrolled property from the rental market. Levin v. City and Cty. of San Francisco, 71 F. Supp. 3d 1072, 1089 (N.D. Cal.

2014); and

•

An ordinance requiring a cash proffer in

exchange for a favorable action on rezoning applications. Nat’l Ass’n of Home

Builders v. Chesterfield Cty., 907 F. Supp.

166, 168-69 (E.D. Va. 1995).

Not only has the split deepened, but as Justice

Thomas noted in his concurring opinion in support of

the Court’s denial of certiorari, the “division shows no

signs of abating.” Cal. Bldg. Indus. Ass’n, 136 S. Ct. at

928. For over two decades, “lower courts have divided

over whether the Nollan/Dolan test applies in cases

where the alleged taking arises from a legislatively imposed condition rather than an administrative one.” Id.

And, while this Court has recognized that there is no

“precise mathematical calculation,” Dolan, 512 U.S. at

395, for determining when an adjustment of rights has

reached the point when “fairness and justice,” id. at

384, requires compensation, until this Court “decide[s]

this issue, property owners and local governments are

left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively

impose exactions that would not pass muster if done

17

administratively.” Cal. Bldg. Indus. Ass’n, 136 S. Ct. at

929. As Justice Kagan explained in Koontz, the split of

authority “casts a cloud on every decision by every local government to require a person seeking a permit to

pay or spend money.” Koontz, 133 S. Ct. at 2608 (Kagan, J., dissenting).

------------------------------------------------------------------

CONCLUSION

For all these reasons, and those stated by the Petitioner in the Petition for a Writ of Certiorari, amici

curiae respectfully request that this Court grant writ

of certiorari, and on review, reverse the decision of the

Maryland State Court of Appeals.

Respectfully submitted,

KAREN R. HARNED

LUKE A. WAKE

NFIB SMALL BUSINESS

LEGAL CENTER

1201 F St., N.W.,

Ste. 200

Washington, D.C. 20004

BRADEN BOUCEK

THE BEACON CENTER

OF TENNESSEE

P.O. Box 198646

Nashville, TN 37219

KIMBERLY S. HERMANN

Counsel of Record

SOUTHEASTERN LEGAL

FOUNDATION

2255 Sewell Mill Rd.,

Ste. 320

Marietta, GA 30062

(770) 977-2131

khermann@

southeasternlegal.org

Counsel for Amici Curiae

August 8, 2018