Amicus Curiae Brief — Peyman Pakdel, et ux., Petitioners v. City and County of San Francisco, California, et al.

No. 20-1212

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

In The

Supreme Court of the United States

---------------------------------♦--------------------------------PEYMAN PAKDEL; SIMA GHEGINI,

Petitioners,

v.

CITY AND COUNTY OF SAN FRANCISCO;

SAN FRANCISCO BOARD OF SUPERVISORS;

SAN FRANCISCO DEPARTMENT OF PUBLIC WORKS,

Respondents.

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

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE

SOUTHEASTERN LEGAL FOUNDATION,

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL CENTER,

AND TEXAS PUBLIC POLICY FOUNDATION

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------KAREN HARNED

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER

555 12th St., N.W.

Ste. 1001

Washington, D.C. 20004

(202) 314-2061

karen.harned@nfib.org

KIMBERLY S. HERMANN

Counsel of Record

CELIA HOWARD O’LEARY

SOUTHEASTERN LEGAL

FOUNDATION

560 W. Crossville Rd.

Ste. 104

Roswell, GA 30075

(770) 977-2131

khermann@

southeasternlegal.org

ROBERT HENNEKE

TEXAS PUBLIC POLICY FOUNDATION

Counsel for Amici Curiae

901 Congress Ave.

Austin, TX 78701

(512) 472-2700

rhenneke@texaspolicy.com

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

Planning for their retirement home, Petitioners

(the Pakdels) purchased a tenancy-in-common interest

in a six-unit building in San Francisco, which gave

them occupancy rights to one unit. In the meantime,

they rented the unit to a tenant. The Pakdels’ purchase

agreement required them to cooperate with co-owners

to convert their tenancy-in-common interests into separately owned condominiums. The City later amended

its condo conversion ordinance to require converting

owners to offer a lifetime lease to any non-owning tenants. After the Pakdels applied for conversion, the City

twice denied their request to be excused from the

lifetime lease requirement. A divided Ninth Circuit

panel affirmed the dismissal of the Pakdels’ regulatory takings claim, holding that the City’s decision

was not “final” under Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985),

because the Pakdels had not exhausted administrative

remedies. The court also affirmed the dismissal of the

Pakdels’ unconstitutional conditions claim because the

condition was imposed through legislation. With nine

judges dissenting, the court denied rehearing en banc.

The questions presented are:

1. Whether a 42 U.S.C. § 1983 takings claim is

ripe under Williamson County’s finality requirement

when a city has definitively and unalterably imposed a

land use regulation on a landowner.

2. Whether the unconstitutional conditions doctrine applies to legislatively-imposed permit conditions.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

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

ii

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

iii

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

1

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

3

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

6

I.

II.

Allowing a government to evade the Constitution simply by imposing an unconstitutional condition through legislation

rather than through an ad hoc administrative process conflicts with this Court’s

precedent ...................................................

7

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 ........................................................... 11

CONCLUSION..................................................... 19

iii

TABLE OF AUTHORITIES

Page

CASES

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

(1996) .......................................................................11

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

1170 (10th Cir. 2011) ...............................................14

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

N.W.2d 281 (Minn. Ct. App. 1996) ..........................15

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

S. Ct. 928 (2016) ............................................ 5, 14, 18

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

Cir. 1995) .................................................................16

Commercial Builders of N. Cal. v. City of Sacramento, 941 F.2d 872 (9th Cir. 1991) ........................16

Common Sense All. v. Growth Mgmt. Hearings

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

2015) ........................................................................16

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

(Me. 1998) ................................................................17

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

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

U.S. 583 (1926) .................................................... 8, 11

Gomillion v. Lightfoot, 364 U.S. 339 (1930) ............. 4, 5

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

Kan. 1994) ......................................................... 12, 13

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

930 P.2d 993 (Ariz. 1997) ........................................15

iv

TABLE OF AUTHORITIES—Continued

Page

Home Builders Ass’n of Dayton and Miami

Valley v. City of Beavercreek, 729 N.E.2d 349

(Ohio 2000) ........................................................ 16, 17

Koontz v. St. Johns River Water Mgmt. Dist., 570

U.S. 595 (2013) ................................................ passim

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

687 (Colo. 2001) .......................................................15

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

F. Supp. 3d 1072 (N.D. Cal. 2014) ...........................17

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

(2005) ..................................................................... 7, 9

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ...................................................7

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

479 (N.Y. 1994) ........................................................12

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

Cir. 2010) ........................................................... 14, 16

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

Page, 649 N.E.2d 384 (Ill. 1995)..............................17

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

907 F. Supp. 166 (E.D. Va. 1995) .............................17

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

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

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

1116 (1995) .......................................................... 6, 12

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

S.E.2d 200 (Ga. 1994) ........................................ 12, 13

v

TABLE OF AUTHORITIES—Continued

Page

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

104 (1978) ................................................................14

Perry v. Sindermann, 408 U.S. 593 (1972) ...................6

Regan v. Taxation with Representation of Wash.,

461 U.S. 540 (1983) ...................................................6

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

547 U.S. 47 (2006) .....................................................6

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

Cty. of San Mateo, 38 Cal. App. 4th 523

(1995) .......................................................................14

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

Francisco, 41 P.3d 87 (Cal. 2002) ............................15

Spinell Homes, Inc. v. Mun. of Anchorage, 78 P.3d

692 (Alaska 2003)....................................................15

Stop the Beach Renourishment v. Florida Dep’t

of Envtl. Prot., 560 U.S. 702 (2012) .........................10

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

City, 61 So. 3d 992 (Ala. 2010) ................................15

Town of Flower Mound v. Stafford Estates Ltd.

P’ship, 135 S.W.3d 620 (Tex. 2004) .........................17

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

1994) ........................................................................12

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

194 (2003) ................................................................11

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ................................................ 3, 7

vi

TABLE OF AUTHORITIES—Continued

Page

RULES

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) .........................................................................9

Richard A. Epstein, Bargaining with the State 5

(1993) ..................................................................... 8, 9

1

INTEREST OF AMICI CURIAE1

Southeastern Legal Foundation (SLF) is a national

nonprofit, public interest law firm and policy center

that advocates for constitutional individual liberties,

limited government, free speech, and free enterprise in

the courts of law and public opinion. For 45 years, SLF

has advocated, both in and out of the courtroom, for the

protection of private property interests from unconstitutional governmental takings. SLF drafts legislative

models, educates the public on key policy issues, and

litigates often before this Court.

National Federation of Independent Business Small

Business Legal Center (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 rights of its members to own, operate, and grow their businesses. To protect its members’ interests, NFIB frequently files

amicus curiae briefs in cases that threaten to harm

small businesses. Specifically, Amicus NFIB files this

brief because the small business community is concerned about eminent domain abuse. Too often, local

officials ignore this Court’s precedent regarding the

unconstitutional conditions doctrine, particularly when

it comes to small businesses. Local governments often subject small businesses to more zoning, permitting, and licensing requirements than the average

1

Rule 37 statement: The parties were notified that Amici intended to file this brief more than 10 days before its filing and

consented to its filing. See Sup. Ct. R. 37.2(a). No party’s counsel

authored any of this brief; Amici alone funded its preparation and

submission. See Sup. Ct. R. 37.6.

2

person. Without uniform enforcement of the doctrine,

small business owners are left to the whims of local officials on the vitality of their constitutional rights.

The Texas Public Policy Foundation (“TPPF”) is

a 501(c)(3) nonprofit, nonpartisan research institute.

The Foundation’s mission is to promote and defend liberty, personal responsibility, and free enterprise by educating policymakers and shaping the public policy

debate with sound research and outreach. Through its

Center for the American Future, TPPF seeks to uphold

the rights and limitations on governmental power

guaranteed through the United States Constitution.

Amici’s direct interest here stems from their profound commitment to protecting America’s legal heritage, including private property rights. Unconstitutional

conditions that lack a nexus and rough proportionality

are unconstitutional, regardless of whether the government imposed the condition through legislation or

through an ad hoc administrative process. This case is

another example of lower courts misapplying the unconstitutional conditions doctrine and serves to further deepen the divide among the lower courts. Unless

and until this Court resolves the split and provides

much needed clarity, local governments will be able to

continue evading constitutional review.

---------------------------------♦---------------------------------

3

SUMMARY OF ARGUMENT

A government may not require a person to give up

a constitutional right as a condition to receiving 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. Cal. Coastal Comm’n, 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 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., 570 U.S. 595, 599

(2013).

This Court has consistently applied the unconstitutional conditions doctrine to conditions imposed both

legislatively and administratively. In fact, as Petitioners explain, the conditions found unconstitutional in

Nollan, Dolan, and Koontz all followed from legislation

rather than ad hoc administrative decisions. Pet. at

30; see also Nollan, 483 U.S. at 828-30; Dolan, 512 U.S.

at 377-78; Koontz, 570 U.S. at 599-603. And this Court

struck down each of those conditions as unconstitutional in violation of the Fifth Amendment. Nollan, 483

U.S. at 841-42; Dolan, 512 U.S. at 396; Koontz, 570 U.S.

at 619.

4

Ignoring the facts of those precedent-setting cases,

a growing number of lower courts refuse to apply the

heightened scrutiny mandated by Nollan and Dolan to

legislatively-imposed conditions, recognizing exaction

claims only when the government imposes the condition in an ad hoc administrative setting. The Ninth

Circuit here is no exception—refusing to even consider

the Pakdels’ unconstitutional conditions claim solely

because the condition was imposed through legislation, and thus depriving them of even an opportunity

to assert their constitutional right.

The danger of treating challenges to legislativelyand administratively-imposed exactions as two distinct actions warranting separate forms of judicial review cannot be overstated. It would be irrational to

hold that a condition that is unconstitutional when

applied by a zoning board becomes wholly acceptable

and unreviewable if adopted by a city council. To hold

otherwise incentivizes governments to coerce the surrender of property exclusively through legislative

means, because such measures would be functionally

immune from judicial review under the Takings

Clause. This Court itself has warned against this danger, finding: “When a State exercises power wholly

within the domain of state interest, it is insulated from

federal judicial review. But such isolation is not carried

over when state power is used as an instrument for circumventing a federally protected right.” Gomillion v.

Lightfoot, 364 U.S. 339, 347 (1930). This Court and the

entire judicial branch acts as a check on state and local

governments to prevent them “from exploiting a power

5

acknowledged to be absolute in an isolated context to

justify the imposition of an ‘unconstitutional condition.’ ” Id.

As a result, this Court has never distinguished between unconstitutional conditions imposed by legislative bodies and unconstitutional conditions imposed by

administrative bodies. Ignoring this Court’s precedentsetting cases, a growing number of lower courts refuse

to apply the heightened scrutiny mandated by Nollan

and Dolan to legislatively-imposed conditions, recognizing exaction claims only when the government imposes the condition in an ad hoc administrative setting.

This not only defies the unconstitutional conditions

doctrine and Nollan, Dolan, and Koontz, but it also results in a deep and now established split among state

and federal courts. This deepening split of authority allows the government to evade proper constitutional review, casts a cloud on governmental actions, and even

worse, leads to 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., concurring in denial of certiorari). Only this Court can resolve the split and provide the resolution needed to protect and preserve

those property rights guaranteed by the Fifth Amendment. And until it does, private property owners and

courts are left struggling to determine the level of scrutiny applicable to legislatively-imposed conditions, and

6

state and local governments are handed a roadmap to

evade the Constitution.

---------------------------------♦---------------------------------

ARGUMENT

Although the “distinction between sweeping legislative takings and particularized administrative

takings appears to be a distinction without a constitutional difference,” Parking Ass’n of Ga. v. City of Atlanta, 515 U.S. 1116, 1117-18 (1995) (Thomas, J., joined

by O’Connor, J., dissenting from denial of certiorari),

many lower courts dispense with Nollan and Dolan

scrutiny simply because the government imposed the

unconstitutional condition by a legislative act rather

than through a discretionary administrative process.

This rejection of Nollan and Dolan’s heightened scrutiny creates several conflicts2 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

2

This Court has consistently applied the unconstitutional

conditions doctrine to both legislatively- and administrativelyimposed conditions without regard to the condition’s origin. See,

e.g., Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S.

47, 59-60 (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 administratively-imposed condition without regard to its origin). As Petitioners explain, lower courts’ refusal to apply heightened scrutiny

to legislatively-imposed conditions conflicts with this Court’s

precedent as it relates to the unconstitutional conditions doctrine

generally, and lacks support for distinguishing between legislative and adjudicative acts. Pet. at 16.

7

Dolan, and recently reaffirmed in Koontz: cases which

all involved conditions imposed through a legislative

act. And the second is the growing conflict among the

lower courts, both state and federal.

I.

Allowing a government to evade the

Constitution simply by imposing an unconstitutional condition through legislation rather than through an ad hoc

administrative process conflicts with this

Court’s precedent.

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 “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,

570 U.S. at 599; Dolan, 512 U.S. 374; Nollan, 483 U.S.

825.

8

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

Court held that a government may not do indirectly

what 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 many cases when 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,

9

and right to due process of law. Id. at 9-10 (discussing

and citing unconstitutional condition doctrine cases).

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 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, 570 U.S. at 599.

“Extortionate demands for property in the landuse 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 607. 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

10

“amount[s] to a per se taking[.]” Koontz, 570 U.S. at 615

(citing Dolan, 512 U.S. at 384; Nollan, 483 U.S. at 831).

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 government imposed its “condition” 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, 570 U.S. at 599-603 (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).3 To be sure,

the Court has always applied the unconstitutional

3

The Takings Clause applies equally to all coordinate

branches of state government under the Fourteenth Amendment.

For that reason, it cannot be that the Takings Clause imposes a

different standard of review for actions violating property rights

when carried out by a legislative body where that same action

would constitute a taking where carried out by an administrative

agency.

11

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

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. See Frost &

Frost Trucking Co., 271 U.S. at 594.

That said, the lower court here refused to apply

Nollan and Dolan scrutiny simply because the City imposed the condition legislatively, rather than administratively. The Ninth Circuit 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.

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

12

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

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

13

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 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. Soon after, the Supreme Court of Georgia followed suit and refused to apply the nexus and

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

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

n.3. Yet Justice Sears, joined by Chief Justice Hunt and

Justice Carley, wrote a strong dissent contending that

the court erred in failing to follow this Court’s takings

jurisprudence under 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

14

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.

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

the following conditions valid, under the Ninth Circuit’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);

When Nollan, Dolan, and Kootnz are held inapplicable,

courts typically apply the much more deferential balancing test

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

(1978).

15

•

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

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

16

•

An ordinance requiring property owners

to dedicate much 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

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

This Court will notice that the Ninth Circuit itself appears

to be split when it comes to legislatively- and administrativelyimposed conditions. In Commercial Builders, the Ninth Circuit

applied only Nollan to the affordable housing ordinance at issue

because it decided the case several years before Dolan. But as the

present case and Mead, 389 Fed. App’x at 639 show, the Ninth

Circuit has not applied Nollan and Dolan scrutiny to any legislatively-imposed conditions in recent years.

17

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

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).

18

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 legislativelyimposed 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 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, 570

U.S. at 628 (Kagan, J., dissenting).

---------------------------------♦---------------------------------

19

CONCLUSION

For all of these reasons, and those stated by the

Petitioners in the Petition for a Writ of Certiorari,

Amici request that this Court grant the writ of certiorari.

Respectfully submitted,

KAREN HARNED

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER

555 12th St., N.W.

Ste. 1001

Washington, D.C. 20004

(202) 314-2061

karen.harned@nfib.org

KIMBERLY S. HERMANN

Counsel of Record

CELIA HOWARD O’LEARY

SOUTHEASTERN LEGAL

FOUNDATION

560 W. Crossville Rd.

Ste. 104

Roswell, GA 30075

(770) 977-2131

khermann@

southeasternlegal.org

ROBERT HENNEKE

TEXAS PUBLIC POLICY FOUNDATION

Counsel for Amici Curiae

901 Congress Ave.

Austin, TX 78701

(512) 472-2700

rhenneke@texaspolicy.com

April 1, 2021