Respondents Brief — George Sheetz, Petitioner v. County of El Dorado, California
Supreme Court briefJul 5, 2023
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No. 22-1074
In the Supreme Court of the United States
GEORGE SHEETZ,
Petitioner,
v.
COUNTY OF EL DORADO,
Respondent.
On Petition for Writ of Certiorari
to the California Court of Appeal
Third Appellate District
OPPOSITION TO PETITIONER’S PETITION
FOR WRIT OF CERTIORARI
GLEN C. HANSEN
*Counsel of Record
Abbott & Kindermann, Inc.
2100 21st Street, Ste. A
Sacramento, California 95818
Tel: 916-456-9595
Email: ghansen@aklandlaw.com
Counsel for Respondent
i
TABLE OF CONTENTS
STATUTORY PROVISIONS THAT ARE NOT SET
OUT IN THE PETITION ............................................ 1
INTRODUCTION ........................................................ 4
STATEMENT OF THE CASE .................................... 5
REASONS FOR DENYING THE PETITION ............ 6
I.
The Petition Seeks An Advisory Opinion
Divorced From The Facts In This Case ........... 6
II.
The Petition Fails To Present Any Split Of
Authority On The Dispositive Issue In This
Case ................................................................... 7
A.
The “Reasonable Relationship” Test In
California’s Mitigation Fee Act
Satisfies The Constitutional Purposes
Of Nollan/Dolan For Legislative
Exactions. ............................................... 8
B.
The TIM Fees Here Satisfy The
“Reasonable Relationship” Test For
Legislative Exactions Under
California Law. .................................... 16
C.
The TIM Fees In This Case Were
Applied Without Discretion. ................ 19
ii
D.
None Of The Case Law Cited By Mr.
Sheetz Address The Application Of
The Nollan/Dolan Test To A
Legislatively Mandated, NonDiscretionary, Broadly-Applied Impact
Fee That Satisfies The MFA’s
“Reasonable Relationship” Test. ......... 20
III.
This Court Should Deny The Petition
Because Mr. Sheetz Essentially Challenges
The Constitutionality Of The MFA, Which
Was Never Raised Or Decided Below ............ 24
IV.
The Court Of Appeal’s Decision Below Is Not
In Tension With Koontz Or This Court’s
Recent Takings Precedents ............................ 26
A.
The Decision Below Is Not In Tension
With Koontz. .......................................... 26
B.
The Discretion Applied In Nollan And
Dolan Does Not Exist Here. ................. 30
C.
The Decision Below Is Not In Tension
With Cedar Point And Pakdel. ............. 35
CONCLUSION .......................................................... 37
iii
TABLE OF AUTHORITIES
CASES
Adarand Constructors, Inc. v. Mineta
534 U.S. 103, 109, 151 L. Ed. 2d 489, 122 S. Ct. 511
(2001) ...................................................................... 25
Amoco Oil Co. v. Village of Schaumburg
661 N.E.2d 380, 390 (Ill. Dist. Ct. App. 1995) ....... 21
Anderson Creek Partners, L.P. v. Cnty. Of Harnett
876 S.E.2d 476, 480-481, 497, 500, 503 n. 17 (N.C.
2022)........................................................................ 21
Better Housing for Long Beach v. Newsom
452 F.Supp.3d 921, 932 (C.D.Ca. 2020)................. 27
California Bldg. Indus. Ass’n v. City of San Jose,
Calif., 577 U.S. 1179 (2016) ................................... 20
California Building Industry Assn. v. City of San Jose
351 P.3d 974, 990 fn. 11 (Cal. 2015) ...................... 27
Camreta v. Greene, 563 U.S. 692, 717 ......................... 7
Cedar Point Nursery v. Hassid
141 S.Ct. 2063 (2021) ............................................. 35
Centex Real Estate Corp. v. City of Vallejo
(1993) 19 Cal.App.4th 1358...................................... 9
City of San Diego v. Board of Trustees of California
State University352 P.3d 883, 893-894 (Cal. 2015)
................................................................................. 12
iv
Conway v. California Adult Authority
396 U.S. 107.............................................................. 7
Cresta Bella, LP v. Poway Unified School Dist., 218
Cal.App.4th 438, 447 (Cal. Ct. App. 2013) .............. 9
CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419,
420 (2016) ............................................................... 25
Dolan v. City of Tigard (1994) 512 U.S. 374 ..... passim
Eastern Enterprises v. Apfel
(1998) 524 U.S. 498, 540 (1998) ............................. 28
EEOC v. Federal Labor Relations Authority
476 U.S. 19, 24 (1986) ............................................ 26
Ehrlich v. City of Culver City, 911 P.2d 429, 436, 12
Cal.4th 854 (Cal. 1996) .................................. passim
General Talking Pictures Corp. v. Western Electric
Co., 304 U.S. 175, 178-179 (1938) ............................ 5
Grupe v. California Coastal Com.
166 Cal.App.3d 148 (Cal. Ct.App. 1985) ................ 30
Heritage at Pompano Hous. Partners, L.P. v. City of
Pompano Beach2021 U.S. Dist. LEXIS 239647,
2021 WL 8875658 (S.D.Fla.. Dec. 15, 2021) .......... 21
Highlands-In-The-Woods, L.L.C. v. Polk Cnty.
217 So.3d 1175, 1178 (Fla. Dist. Ct. App. 2017) ... 21
Home Builders Ass’n of Dayton and the Miami Valley
v. City of Beavercreek
729 N.E.2d 349, 350-356 (Ohio 2000) .................... 23
v
Home Builders Assn. of Tulare/Kings Counties, Inc.
v. City of Lemoore (2010) 185 Cal.App.4th 554 ....... 9
Knight v. Metro. Gov’t of Nashville & Davidson Cnty.,
67 F.4th 816 (6th Cir. 2023) ............................. 33, 34
Koontz v. St. Johns River Water Management District
(2013) 570 U.S. 595 ........................................ passim
La Costa Beach Homeowners' Assn. v. California
Coastal Com.
101 Cal.App.4th 804, 817 (Cal. Ct. App. 2002) ..... 32
Landgate, Inc. v. California Coastal Com.
953 P.2d 1188, 1198 (Cal. 1998) ............................ 19
Lingle v. Chevron U.S.A., Inc.
544 U.S. 528, 546 (2005) ........................................ 30
Matsushita Elec. Industrial Co. v. Epstein
516 U.S. 367, 399 (1996) ........................................ 25
Nollan v. California Coastal Commission
(1987) 483 U.S. 825 ........................................ passim
Pakdel v. City & County of San Francisco
(2021) 141 S.Ct. 2226 ................................. 35, 36, 37
R. Simpson & Co. v. Commissioner
321 U.S. 225, 227 (1944) .......................................... 5
Rogers Mach., Inc. v. Washington County
45 P.3d 966, 978 n.13 (Or. Ct. App. 2002) ............. 23
San Remo Hotel v. City and County of San Francisco,
41 P.3d 87, 105 (Cal.2002) ..................................... 19
vi
Tower of Flower Mound v. Stafford Estates Ltd.
P’ship, 135 S.W.3d 620, 641-643 (Tex. 2004) ........ 22
Walker v. City of San Clemente
(2015) 239 Cal.App.4th 1350,................................... 9
Webster v. Cooper, 558 U.S. 1039, 1041 (2009) ......... 26
Zacchini v. Scripps-Howard Broadcasting Co.
433 U.S. 562, 566 (1977) .......................................... 7
STATUTES
California Government Code § 66468 (Deerings 2020)
................................................................................... 1
Gov. Code, § 66001 ............................................. passim
OTHER AUTHORITIES
CDC § 18.134.010 ....................................................... 33
Shapiro, et al., Supreme Court Practice (11th Ed.
2019), Ch. 6.37(i)(1), p. 6-148 ................................. 24
1
STATUTORY PROVISIONS THAT ARE NOT
SET OUT IN THE PETITION
California Government Code § 66001 (Deerings
2023).
(a) In any action establishing, increasing, or imposing
a fee as a condition of approval of a development
project by a local agency, the local agency shall do all
of the following:
(1) Identify the purpose of the fee.
(2) Identify the use to which the fee is to be put. If the
use is financing public facilities, the facilities shall be
identified. That identification may, but need not, be
made by reference to a capital improvement plan as
specified in Section 65403 or 66002, may be made in
applicable general or specific plan requirements, or
may be made in other public documents that identify
the public facilities for which the fee is charged.
(3) Determine how there is a reasonable relationship
between the fee’s use and the type of development
project on which the fee is imposed.
(4) Determine how there is a reasonable relationship
between the need for the public facility and the type
of development project on which the fee is imposed.
(b) In any action imposing a fee as a condition of
approval of a development project by a local agency,
the local agency shall determine how there is a
reasonable relationship between the amount of the
fee and the cost of the public facility or portion of the
public facility attributable to the development on
which the fee is imposed.
(c) Upon receipt of a fee subject to this section, the
local agency shall deposit, invest, account for, and
expend the fees pursuant to Section 66006.
2
(d)
(1) For the fifth fiscal year following the first deposit
into the account or fund, and every five years
thereafter, the local agency shall make all of the
following findings with respect to that portion of the
account or fund remaining unexpended, whether
committed or uncommitted:
(A) Identify the purpose to which the fee is to be put.
(B) Demonstrate a reasonable relationship between
the fee and the purpose for which it is charged.
(C) Identify all sources and amounts of funding
anticipated to complete financing in incomplete
improvements identified in paragraph (2) of
subdivision (a).
(D) Designate the approximate dates on which the
funding referred to in subparagraph (C) is expected
to be deposited into the appropriate account or fund.
(2) When findings are required by this subdivision,
they shall be made in connection with the public
information required by subdivision (b) of Section
66006. The findings required by this subdivision need
only be made for moneys in possession of the local
agency, and need not be made with respect to letters
of credit, bonds, or other instruments taken to secure
payment of the fee at a future date. If the findings are
not made as required by this subdivision, the local
agency shall refund the moneys in the account or
fund as provided in subdivision (e).
(e) Except as provided in subdivision (f), when
sufficient funds have been collected, as determined
pursuant to subparagraph (F) of paragraph (1) of
subdivision (b) of Section 66006, to complete
financing on incomplete public improvements
identified in paragraph (2) of subdivision (a), and the
public improvements remain incomplete, the local
3
agency shall identify, within 180 days of the
determination that sufficient funds have been
collected, an approximate date by which the
construction of the public improvement will be
commenced, or shall refund to the then current
record owner or owners of the lots or units, as
identified on the last equalized assessment roll, of the
development project or projects on a prorated basis,
the unexpended portion of the fee, and any interest
accrued thereon. By means consistent with the intent
of this section, a local agency may refund the
unexpended revenues by direct payment, by
providing a temporary suspension of fees, or by any
other reasonable means. The determination by the
governing body of the local agency of the means by
which those revenues are to be refunded is a
legislative act.
(f) If the administrative costs of refunding
unexpended revenues pursuant to subdivision (e)
exceed the amount to be refunded, the local agency,
after a public hearing, notice of which has been
published pursuant to Section 6061 and posted in
three prominent places within the area of the
development project, may determine that the
revenues shall be allocated for some other purpose for
which fees are collected subject to this chapter and
which serves the project on which the fee was
originally imposed.
(g) A fee shall not include the costs attributable to
existing deficiencies in public facilities, but may
include the costs attributable to the increased
demand for public facilities reasonably related to the
development project in order to (1) refurbish existing
facilities to maintain the existing level of service or
4
(2) achieve an adopted level of service that is
consistent with the general plan.
INTRODUCTION
Respondent County of El Dorado, California,
respectfully requests that this Court deny Petitioner
George Sheetz’s Petition For Writ Of Certiorari
(“Petition”) which seeks review of the judgment of the
California Court of Appeal, Third Appellate District.
The question presented in the Petition is
“whether a permit exaction is exempt from the
unconstitutional-conditions doctrine as applied in
Nollan [v. California Coastal Commission (1987) 483
U.S. 825] and Dolan [v. City of Tigard (1994) 512 U.S.
374] simply because it is authorized by legislation.”
But that is not what this case is about. The Court of
Appeal did not decline to apply the Nollan/Dolan test
“simply because it is authorized by legislation.” While
that may be true of some of the case law and
commentary cited in the Petition, it is not true here.
Mr.
Sheetz’
simplistic
distinction
between
“legislative” and “administrative” exactions, as well as
his discussion of the purported “legislative/
administrative loophole,” does not encompass the
totality of what the California Court of Appeal
concluded in the Decision below.
The question presented in the Petition ignores
the fact that the legislatively mandated, formulaic,
nondiscretionary and broadly-applied fees under the
County’s Traffic Impact Mitigation (“TIM”) Fee
Program that Mr. Sheetz challenges here were found
by the trial court and the Court of Appeal to fully
5
satisfy the “reasonable relationship” test for legislative
exactions under California’s Mitigation Fee Act, Govt.
Code 66000 et seq. (“MFA”). App. A-6 – A-7, A-23 – A27. No case cited in the Petition or in any of the amici
curiae briefs, or found by Respondent, has ever held
that impact fees that meet the reasonable relationship
test for legislative exactions in the MFA must also
satisfy the Nollan/Dolan test. Thus, there is no split of
authority for this Court to resolve in this case. The
Petition should therefore be denied. See e.g.,
R. Simpson & Co. v. Commissioner, 321 U.S. 225, 227
(1944) [“There appearing to be no conflict of decision
between circuits, we on November 9, 1942 denied
certiorari”]; General Talking Pictures Corp. v. Western
Electric Co., 304 U.S. 175, 178-179 (1938) [“Nor would
the writ be granted to review the questions of
anticipation and invention that petitioner argues, for
as to them there is no conflict between decisions of
circuit courts of appeals.”]
Furthermore, the Petition essentially challenges
the constitutionality of the distinction between
legislative exactions and adjudicatory exactions in the
MFA. But that issue was never raised or decided
below. For that additional reason, the Petition should
be denied.
STATEMENT OF THE CASE
Respondent hereby incorporates by reference
the “Factual And Procedural Background” in the Court
of Appeal’s Decision, below. App. A-2 to A-7.
The Superior Court denied Mr. Sheetz’ petition
for writ of mandamus. App. B-1. Mr. Sheetz timely
6
appealed. App. A-7. The Court of Appeal denied that
appeal, finding (1) that the Nollan/Dolan test did not
apply to the challenged TIM fees, and (2) that the TIM
fees complied with the MFA. App. A-7 to A-20, A-23 to
A-27. Mr. Sheetz timely petitioned the California
Supreme Court for review of the Court of Appeal’s
decision, and the California Supreme Court denied
that petition. C-1.
REASONS FOR DENYING THE PETITION
I.
The Petition Seeks An Advisory Opinion
Divorced From The Facts In This Case
The question presented in the Petition avoids
the actual facts in this case, and therefore seeks an
advisory opinion from this Court. Because this is an
“as applied” challenge to the TIM fees, App. A-5 – A-6,
Mr. Sheetz framed the question to the California
Supreme Court as whether a legislative exaction “like
the one imposed by the County” is subject to
heightened scrutiny under the unconstitutional
conditions doctrine set forth in Nollan, Dolan and
Koontz v. St. Johns River Water Management District
(2013) 570 U.S. 595. But now in this Court, Mr. Sheetz
strips out from the question presented any reference to
the facts regarding the actual exaction imposed by the
County on his building project in this case. Instead,
Mr. Sheetz asks this Court to determine the
constitutionality of generic legislatively imposed
impact fees under Nollan/Dolan, and not the actual
7
fees at issue here. 1 Petitioner essentially invites this
Court to issue an advisory opinion, which this Court is
not permitted to render. Zacchini v. Scripps-Howard
Broadcasting Co., 433 U.S. 562, 566 (1977). See
Camreta v. Greene, 563 U.S. 692, 717 (KENNEDY, J.
dissenting) [“The ‘ “judicial Power” is one to render
dispositive judgments,’ not advisory opinions.”] This
Court should therefore deny the Petition. See e.g.,
Conway v. California Adult Authority, 396 U.S. 107,
110 (1969) [where Court would “in effect be rendering
an advisory opinion” if it passed upon the “purely
artificial and hypothetical issue tendered by the
petition for certiorari,” the Court dismissed the writ of
certiorari as improvidently granted.]
II.
The Petition Fails To Present Any Split
Of Authority On The Dispositive Issue In
This Case
Mr. Sheetz asserts that “governments have
turned to cloaking their exactions in legislation –
knowing that, in doing so, their exactions can escape
Nollan/Dolan scrutiny. That’s precisely what
happened to Mr. Sheetz in this case.” (Petition, 6.)
But that is not what happened here. The development
impact fee imposed on Mr. Sheetz was legislatively
adopted by the County pursuant to the procedures and
processes set forth in California’s legislatively enacted
MFA. The Petition (1) omits any discussion about the
1 The facial challenge that is now presented to this Court, if it
was separated from the “as-applied” challenge, would be barred
by the applicable statute of limitations. App. B-7 to B-16.
8
“reasonable relationship” test in the MFA, which test
applies to all legislatively imposed development
impact fees in California; (2) omits any discussion
about how the courts below found that the TIM fees at
issue here satisfy that reasonable relationship test;
(3) omits any discussion that the TIM fees were
applied to Mr. Sheetz’ building project without any
administrative discretion; and (4) omits the fact that
no court has ever held that legislatively mandated,
formulaic, nondiscretionary and broadly applied
impact fees that satisfy that reasonable relationship
test under the MFA must also satisfy the
Nollan/Dolan standard.
As a result of such
omissions, the Petition fails to present any split of
authority on the dispositive issue in this case.
Certiorari should therefore be denied here.
A.
The “Reasonable Relationship” Test In
California’s Mitigation Fee Act Satisfies The
Constitutional Purposes Of Nollan/Dolan For
Legislative Exactions.
The
public
policy
considerations
and
constitutional concerns of developers and property
owners raised in the Petition and in the several
amicus briefs were specifically addressed by the
California Legislature when it enacted the MFA. The
California Supreme Court explained that the MFA
“was passed by the [California] Legislature ‘in
response to concerns among developers that local
agencies were imposing development fees for purposes
unrelated to development projects.’” Ehrlich v. City of
Culver City, 911 P.2d 429, 436, 12 Cal.4th 854 (Cal.
1996) (“Ehrlich”) (citation omitted). To that end, the
MFA “establishes a variety of requirements to ensure
9
local agencies timely use these fees to pay for public
facilities that serve those very developments rather
than divert the fees for general revenue purposes.”
Walker v. City of San Clemente, 239 Cal.App.4th 1350,
1356 (Cal. Ct. App. 2015). The MFA creates “uniform
procedures for local agencies to follow in establishing,
imposing, collecting, accounting for, and using
development fees.” Centex Real Estate Corp. v. City of
Vallejo,19 Cal.App.4th 1358, 1361–1362 (Cal. Ct. App.
1993).
When a local agency legislatively establishes a
development fee, the MFA requires in subdivision (a),
of section 66001 of the California Government Code,
that “the local agency to identify the purpose of the fee
and the use to which the fee will be put. The local
agency must also determine that both ‘the fee’s use’
and ‘the need for the public facility’ are reasonably
related to the type of development project on which
the fee is imposed.” Home Builders Assn. of
Tulare/Kings Counties, Inc. v. City of Lemoore, 185
Cal.App.4th 554, 561-565 (Cal. Ct. App. 2010) (“City
of Lemoore”). Specifically, section 66001(a) of the
MFA requires that, for legislatively imposed fees, the
legislative body must find that “there is a reasonable
relationship between the fee’s use and the type of
development project on which the fee is imposed.”
App. A-13. A local agency must engage “in a reasoned
analysis designed to establish the requisite connection
between the amount of the fee imposed and the
burden created.” (Cresta Bella, LP v. Poway Unified
School Dist., 218 Cal.App.4th 438, 447 (Cal. Ct. App.
2013).) As the Court of Appeal explained in the
Decision below:
10
“[T]he local agency has the initial
burden
of
producing
evidence
sufficient to demonstrate that it used
a valid method for imposing the fee in
question, one that established a
reasonable relationship between the
fee charged and the burden posed by
the development.” “However, the
figures upon which the public agency
relies
will
necessarily
involve
predictions
regarding
population
trends and future building costs, and
they need not be exact. ‘As a practical
matter it will not always be possible to
fashion a precise accounting allocating
the costs, and consequent benefits, of
particular
building
projects
to
particular portions of the population.
All that is required of the [agency] is
that it demonstrate that development
contributes to the need for the
facilities, and that its choices as to
what will adequately accommodate
the [new population] are reasonably
based.’ ” App. A-24 (citations omitted).
Justice Mosk of the California Supreme Court
described the constraints that the “reasonable
relationship” test imposes on legislatively imposed
impact fees as follows:
Government Code section 66000 et seq.
extensively regulates the imposition of
development
fees,
including
requirements that the purpose of the
11
fee must be identified with specificity,
and that a “reasonable relationship”
must exist between the fee’s use and
the type of development project on
which the fee is imposed. The
statutory scheme also mandates a
public hearing process for the adoption
of a fee, and a procedure for the refund
of unused portions of the fee.
Moreover, a development fee which
exceeds the burdens and benefits of
development will be found to be a
special tax that requires two-thirds
voter approval under article XIII A,
section
4
of
the
California
Constitution. [¶] Even under more
deferential review, a court’s inquiry
into the validity of the reasonable
relationship between a development
fee and a development impact will not
be a “rubber stamp.” [Ehrlich, supra,
911 P.2d at 458-459 (MOSK, J.
concur).]
Thus, the MFA proves the truth of Justice
Kagan’s point in Koontz that courts can use “state law
to protect against monetary demands.” Koontz, supra,
570 U.S. at p. 629 (KAGAN, J. dissenting). This
Court’s majority agreed: “[T]he dissent is correct that
state law normally provides an independent check on
excessive land use permitting fees.” Koontz, supra,
570 U.S. at p. 629. As the Court of Appeal explained
in the Decision below, “legislatively imposed
development impact fees that are not subject to the
Nollan/Dolan test remain subject to the means-end
12
judicial review under the Mitigation Fee Act.” App. A15. Accordingly, the Petition and the amicus briefs
are surprisingly silent regarding the present
application of the reasonable relationship test in the
MFA, which governs every legislatively imposed
exaction in California.
The reasonable relationship test in section
66001(a) of the MFA was designed by the California
Legislature to not only protect the interest of
developers, as discussed above, but also to satisfy the
constitutional purposes underlying the “rough
proportionality” test in Dolan. This Court concluded
in Dolan that the “reasonable relationship” test used
by the states, such as the MFA, was the closest to the
federal constitutional norm. Dolan, supra, 512 U.S. at
391. This Court adopted the term “rough
proportionality” to describe that norm, explaining
that such a formulation entails “some sort of
individualized determination that the required
dedication is related both in nature and extent to the
impact of the proposed development.” Ibid. (fn.
omitted.) Although no “precise mathematical
calculation is required,” a local agency must
nevertheless “make some effort to quantify its
findings in support of the dedication” beyond mere
conclusory statements that it will mitigate or offset
some anticipated burden created by the project. Id. at
395-396. That is also what the MFA’s “reasonable
relationship” test was designed to do in regard to
legislative exactions. See City of San Diego v. Board
of Trustees of California State University, 352 P.3d
883, 893-894 (Cal. 2015) [“mitigation fees imposed on
a project must be reasonably related and roughly
proportional to that project's impacts” (citing Gov.
13
Code, § 66001, subds. (a)(3)–(4), (b) & (g); Ehrlich,
supra, 911 P.2d at 437-438; and Dolan, supra, 512
U.S. at 391].
The MFA requirements therefore prevent
legislative exactions in California from being
arbitrary, oppressive, and unjust, which amicus
curiae admits is “the sort of review provided by Nollan
and Dolan.” Brief of The Cato Institute As Amicus
Curiae etc. (“CATO Brief”), 10.
The MFA
requirements for legislative exactions follows the
constitutional requirements in Nollan/Dolan. The
California Supreme Court explained:
[T]he Legislature incorporated into
Government Code section 66001,
subdivision (a)(3) of the Act a standard
that generally corresponds to the one
reflected in the high court’s takings
jurisprudence (see Dolan, supra, 512
U.S. at [391] [“We think the
‘reasonable relationship’ test adopted
by a majority of the state courts is
closer to the federal constitutional
norm . . . . [W]e do not adopt it as such,
partly because the term . . . seems
confusingly similar to the term
‘rational basis’ . . .”]), it is appropriate
for this court to interpret the statutory
standard in a manner consistent with
the high court’s decisions in Nollan
and Dolan so that a development fee
imposed pursuant to the act, and that
satisfies its requirements, will not be
subject to challenge on constitutional
14
grounds.
By
interpreting
the
“reasonable relationship” standard
adopted by Government Code section
66001 as imposing a requirement
consistent with the Nollan/Dolan
standard, we serve the legislative
purpose of protecting developers from
disproportionate and excessive fees,
and carry out the legislative intent of
imposing a statutory relationship
between monetary exaction and
development project that accurately
reflects the prevailing takings clause
standard.
We must, in other words, recognize
that in the wake of Dolan the term
“reasonable relationship” [in the
MFA] embraces both constitutional
and statutory meanings which, for all
practical purposes, have merged to the
extent that the Dolan decision applies
to development fees--an issue we
address below. Thus, developers who
wish to challenge a development fee on
either statutory or constitutional
grounds must do so via the statutory
framework
provided
by
the
[Mitigation Fee] Act. [Ehrlich, supra,
911 P.2d at 437-438 (ARABIAN, J.
plur. opn.]
In his concurrence in Ehrlich, Justice Mosk similarly
added: “Nollan and Dolan in most cases impose no
additional constitutional burden on the government to
15
justify development fees beyond the burden it already
bears under the state constitution and statute.”
Ehrlich, supra, 911 P.2d at 459 (MOSK, J. concur). In
short, the reasonable relationship test in the MFA
that applies to legislative exactions satisfies the same
constitutional concerns articulated in Nollan/Dolan.
The only difference in the Nollan/Dolan test
and the MFA’s reasonable relationship standard for
legislative exactions is that, whereas Dolan prescribes
“some sort of individualized determination that the
required dedication is related both in nature and
extent to the impact of the proposed development,”
512 U.S. at 391, the “required nexis” for legislative
exactions under the MFA “is established based on the
justifiable imposition of fees on a class of development
rather than particular projects.” App. A-21 (emphasis
added). However, the constitutional purposes
underlying the individualized determination element
in Dolan are nevertheless satisfied by the reasonable
relationship test for legislative exactions under the
MFA. Whereas Dolan seeks to ensure that the
development fee is related “both in nature and extent
to the impact of the proposed development” Dolan, 512
U.S. at 391, the trial court in this case, reviewing the
County’s compliance with the MFA, found that the
administrative record established that “the fee bore a
reasonable relationship, in both intended use and
amount, to the deleterious public impact of the
project.” App. A-6. The Court of Appeal affirmed and
similarly concluded that “Sheetz has failed to show
that the record before the County clearly did not
support the County’s determinations regarding the
reasonableness of the relationship between the fee
and his development project.” App. A-27.
16
Furthermore, the considerations in Dolan that
governments cannot circumvent constitutional
requirements with mere “conclusory statement[s]”
about the public interest, Dolan, 512 U.S. at 395, and
that the government must “make some effort to
quantify its findings,” id., were satisfied by the
County’s compliance with the MFA’s reasonable
relationship test, as discussed below.
B.
The TIM Fees Here Satisfy The “Reasonable
Relationship” Test For Legislative Exactions
Under California Law.
In response to Mr. Sheetz’ arguments on the
merits, the trial court held, and the Court of Appeal
affirmed, that the County’s TIM Fee Program
satisfied the reasonable relationship test for
legislative exactions required in section 66001(a) of
the MFA. Petition, 10-11 (citing App. A-16). When the
County adopted new TIM fee rates in February 2012,
the County’s Board of Supervisors explained that,
“starting in 1984 and continuing until the present
time, the Board has adopted and updated various fee
resolutions to ensure that new development on the
western slope pay to fund its fair share of the costs of
improving the county and state roadways necessary to
serve that new development ….” App. D-1 (emphasis
added); see also App. A-3; Petition, 8. The trial court
concluded the County met its burden of producing
evidence that it used a valid method for imposing the
TIM fee in 2012, one that established a reasonable
relationship between the fee charged and the burden
posed by Sheetz’s development project. App. A-6. The
Court of Appeal affirmed. App. A-27. Thus, amici
17
curiae’s assertion that, under Nollan/Dolan, “[t]he
County may be entitled to demand that new
development contribute a fair, and proportionate,
share to the costs of improved roads made necessary
by development, but no more,” Brief of Amici Curiae
California Building Industry Association, etc. (“CBIA
Brief”), 29, is exactly what happened here because of
the County’s compliance with the MFA when it
adopted the TIM fees.
Like the Petition, all of the amici curiae briefs
in support of the Petition ignore the County’s
compliance with the reasonable relationship test in
the MFA.
Rather, such briefs are filled with
misleading and out of context statements about
legislatively adopted fees in general without reference
to the TIM fees that are actually at issue here. Such
misleading statements, unsupported by any citation
to the record here, include the following: “The exaction
for road funding is unrelated to Mr. Sheetz’s activity
and far out of proportion to any costs that the County
of El Dorado might incur as a result of it,” Brief of
Amicus Curiae The Buckeye Institute, etc. (“Buckeye
Brief”), 2; the County “extract[s] payments from
individual property owners for conduct disconnected
from those roads,” Buckeye Brief, 6; local government
may impose “unjustified fees that admittedly lack
even ‘rough proportionality’ to the impacts of new
development as in this case,” CBIA Brief, 23; the TIM
fees here are “arbitrary property confiscations in the
land-use permit process,” Brief of Amicus Curiae
Pacific Legal Foundation (“PLF Brief”), 28; “there is
no limit to the amount of money or property that the
government can demand as a permit condition,” PLF
Brief, 4; “there is no end to the types of social burdens
18
the government can place on an individual permitseeker,” PLF Brief, 4; and “a least in California, there
is no effective state court review of fees if they are
characterized as ‘legislative,’ as plainly shown in
Sheetz.” Brief of Amici Curiae California Building
Industry Association, etc. (“CBIA Brief”), 20. Because
there is no supporting evidence whatsoever in the
record in this case for these conclusory and misleading
statements, their inclusion in the amicus briefs
further demonstrate that Mr. Sheetz and amici curiae
are seeking a conclusory opinion from this Court.
Mr. Sheetz and amici curiae’s avoidance of the
County’s compliance with the MFA’s reasonable
relationship test also makes inapposite the public
policy arguments raised in the amicus briefs
regarding the “politics of takings” and “majoritarian
processes,” CATO Brief, 15-22, “majoritarian
oppression,” PLF 16-17, and the “adverse
consequences of development fees on equity, housing
affordability, and other “serious drawbacks” if fees are
not proportionate to impacts.” CBIA Brief, 22. In
short, the complete lack of any consideration of the
MFA’s requirements make the arguments of Mr.
Sheetz and the amici curiae merely hypothetical and
advisory in the case at bar, thereby precluding this
Court’s review.
19
C.
The TIM Fees In This Case Were Applied
Without Discretion.
The Nollan/Dolan test does not apply here
because the formulaic TIM fees are applied without
any discretion on the part of the County’s
administrative officials. The California Supreme
Court recognized that adjudicative discretion is the
key to determining when Nollan/Dolan applies. See
Ehrlich, supra, 911 P.2d at 444 (ARABIAN, J. plur.
opn.) [heightened scrutiny of the Nollan/Dolan test is
appropriate “[w]hen such exactions are imposed . . .
neither generally nor ministerially, but on an
individual and discretionary basis” (emphasis added)];
San Remo Hotel v. City and County of San Francisco,
41 P.3d 87, 105 (Cal.2002) [ “The ‘sine qua non’ for
application of Nollan/Dolan scrutiny is thus the
‘discretionary deployment of the police power’ in ‘the
imposition of land-use conditions in individual cases’”
(quoting Ehrlich, supra, 911 P.2d at 439 (ARABIAN,
J plur. opn..) (emphasis added)); Landgate, Inc. v.
California Coastal Com., 953 P.2d 1188, 1198 (Cal.
1998) [Nollan/Dolan applies to “development fees
imposed on a property owner on an individual and
discretionary basis.”
(emphasis added)]; In the
Decision below, the Court of Appeal recognized that
there was no discretion in the application of the TIM
Fees:
“We conclude the trial court properly
determined that the TIM fee is not subject to the
heightened scrutiny of the Nollan/Dolan test. The fee
is not an “ad hoc exaction” imposed on a property
owner on an individual and discretionary basis.” App.
A-16.
20
D.
None Of The Case Law Cited By Mr. Sheetz
Address
The
Application
Of
The
Nollan/Dolan Test To A Legislatively
Mandated, Non-Discretionary, BroadlyApplied Impact Fee That Satisfies The
MFA’s “Reasonable Relationship” Test.
The Petition simplistically presents the
question here as whether there is “a constitutional
difference between legislative and administrative
exactions for purposes of Nollan/Dolan review”
Petition, 2. But the Decision below is not simply about
“whether the Nollan/Dolan test applies in cases
where the alleged taking arises from a legislatively
imposed condition rather than an administrative one.”
California Bldg. Indus. Ass’n v. City of San Jose,
Calif., 577 U.S. 1179 (2016) (THOMAS, J. concurring
in denial of certiorari). Merely framing the issue as a
generic ‘legislative’ exaction versus a generic
‘administrative’ exaction does not accurately describe
the dispositive issue in this case. The simplistic
distinction that permeates the entire Petition fails to
account for (1) the formulaic and generally applied
legislative exactions at issue in this case; (2) the
reasonable relationship” requirements that are
satisfied by the TIM fees here; (3) the state courts’
ruling that the TIM fees complied with the
requirements of the MFA; and (4) the lack of any
discretion in the County’s application of the TIM Fees.
Because none of the case law cited in the Petition (or
the amicus briefs) ever applied the Nollan/Dolan test
to legislative exactions that meet such criteria, there
is no split of authority for this Court to resolve and
therefore certiorari should be denied.
21
Several cases relied on by Mr. Sheetz did not
involve formulaic and generally applied legislative
exactions. See Highlands-In-The-Woods, L.L.C. v.
Polk Cnty., 217 So.3d 1175, 1178 (Fla. Dist. Ct. App.
2017) [“We are not convinced that the County’s
decision regarding Highlands was only legislative in
nature and not adjudicative,” and the County
ordinance requiring the connection to a reuse system
“may also apply to other subdivisions in the county”
(emphasis added)]; Amoco Oil Co. v. Village of
Schaumburg, 661 N.E.2d 380, 390 (Ill. Dist. Ct. App.
1995) [“the so-called ‘ordinance’ at issue here did not
itself reflect a uniformly applied legislative policy.
Indeed, the dedication requirement was clearly sitespecific and adjudicative in character.”]
Several of the cases relied on by Mr. Sheetz
address legislatively adopted exactions, but there is
no discussion in those cases as to whether the
exactions were required to satisfy a “reasonable
relationship” test such as that which is mandated by
the MFA in California. For example, there is no
indication in Anderson Creek Partners, L.P. v. Cnty.
Of Harnett, 876 S.E.2d 476, 480-481, 497, 500, 503 n.
17 (N.C. 2022) that the sewer hook-up fee mandated
by local ordinance in that case was ever subjected to a
“reasonable relationship” test when it was enacted.
The same is true of the governmental requirements at
issue in Heritage at Pompano Hous. Partners, L.P. v.
City of Pompano Beach, 2021 U.S. Dist. LEXIS
239647, 2021 WL 8875658 (S.D.Fla.. Dec. 15, 2021);
Highlands-In-The-Woods, L.L.C. v. Polk Cnty., supra;
and Amoco Oil Co. v. Village of Schaumburg, supra.
Because the TIM Fees in the case at bar were
governed by (and satisfied) the “reasonable
22
relationship” test in the MFA, but the legislative
exactions in the case law cited by Mr. Sheetz did not,
the Petition does not present a split of authority for
this Court to resolve.
Even though there is no administrative
discretion in the application of the TIM fees here, Mr.
Sheetz relies on case law where there was substantial
discretion in the application of legislatively mandated
exactions. Petition, 14-15. For example, in Tower of
Flower Mound v. Stafford Estates Ltd. P’ship, 135
S.W.3d 620, 641-643 (Tex. 2004), the Texas Supreme
Court applied Nollan/Dolan to a local ordinance that
required all developers to construct concrete streets.
However, the ordinance contained an exception to
that requirement if the Town’s Council found and
determined “that such standards work a hardship”
due to the “costs” and “other related factors” resulting
from the imposition of that requirement in individual
cases. Id. at 624. In the Stafford Estates case, the
Town denied the request by the plaintiff developer for
an exception to that requirement, even though the
Town “had exercised its discretion to grant exceptions
to other developers on a project-by-project basis.” Id.
Thus, the Stafford Estates case addressed a
discretionary application of a legislatively adopted
exaction, similar to that in Dolan. However, because
there is no discretion in the application of the TIM
Fees by the County in the case at bar, Stafford Estates
is materially different case, and Mr. Sheetz therefore
fails to establish the existence of any split of authority
between the Texas case and the Decision below.
Mr. Sheetz even relies upon case law that
actually supports California’s position. Mr. Sheetz
23
points out that in Home Builders Ass’n of Dayton and
the Miami Valley v. City of Beavercreek, 729 N.E.2d
349, 350-356 (Ohio 2000), the Ohio Supreme Court
applied a “dual rational nexus test” purportedly under
Nollan/Dolan to a legislative exaction. Petition, 1213. However, that “dual rational nexus test” did not
actually follow Nollan/Dolan because it omitted the
“individualized
determination”
component
of
Nollan/Dolan. As the Oregon Court of Appeals
accurately explained, the Dayton decision “made no
individualized assessment of proportionality at all but
instead reviewed the legislation from a facial
perspective as it applied to developers generally.”
Rogers Mach., Inc. v. Washington County, 45 P.3d 966,
978 n.13 (Or. Ct. App. 2002). Thus, Dayton is actually
contrary to Mr. Sheetz’ position and essentially
supports the position taken by the California courts.
Therefore, none of the authorities cited by
Mr. Sheetz are similar to the case at bar, where the
legislatively imposed, formulaic and nondiscretionary
impact fees were found to comply with the “reasonable
relationship” requirement in the MFA. None of the
cases cited in the Petition hold that legislative
exactions that comply with the “reasonable
relationship” standard in the MFA (or a similar
standard) must also satisfy the “individualized
determination” component of the Nollan/Dolan test.
None of the case law cited in the Petition disagrees
with, or even discusses, whether the MFA’s
“justifiable imposition of fees on a class of
development rather than particular projects,” App.
A-21, is consistent with Nollan/Dolan. This is not the
proper case for this Court to explore such issues. “The
more important an issue is, the more the Court would
24
benefit by allowing the issue to percolate so it can
avail itself of the wisdom of other courts before
settling a momentous matter. This argument is
especially appropriate if the issue is inadequately
explored in the opinions below.” Shapiro, et al.,
Supreme Court Practice (11th Ed. 2019), Ch. 6.37(i)(1),
p. 6-148.
In short, no split of authority exists on the key
dispositive issues here. This Court should deny
certiorari in this case.
III.
This Court Should Deny The Petition
Because
Mr.
Sheetz
Essentially
Challenges The Constitutionality Of The
MFA, Which Was Never Raised Or Decided
Below
Mr. Sheetz argues that the “individualized
determination” in the Nollan/Dolan standard must
apply to the legislatively imposed TIM fees. Petition,
8. Because the MFA distinguishes between legislative
fees in subdivision (a) of Government Code section
66001, and adjudicatory fees in subdivision (b) of
section 66001, Mr. Sheetz’ Petition essentially asks
this Court to decide whether that distinction in the
MFA is constitutional under Nollan/Dolan. As the
Court of Appeal explained,
Section 66001, subdivision (a) applies to
quasi-legislative decisions to impose
development impact fees on a class of
development projects, whereas section
66001, subdivision (b) applies to
25
adjudicatory, case-by-case decisions to
impose a development impact fee on a
particular development project. The
difference between these subdivisions is
that only subdivision (b) of section 66001
requires an individualized more specific
determination of reasonableness for each
particular project. [App. A-20 - A-21.]
Citing numerous California cases, the Court of Appeal
concluded that subdivision (a) applies to the TIM fees
here, and not subdivision (b), because “California law
does not require an individualized or site-specific
determination of reasonableness for each particular
project subject to the [TIM] fee.” App. A-21, A-23. The
Petition essentially asks this Court to determine
whether that distinction in the MFA between
subdivisions (a) and (b), of Government Code section
66001, is constitutional under Nollan/Dolan. The
arguments of amicus curiae further demonstrate that
the Petition is, in fact, a challenge to the
constitutionality of “California law,” i.e., the MFA.
CBIA Brief, 8.
However, that constitutional issue was never
raised or considered below, and “[it is not this Court's
usual practice to adjudicate either legal or predicate
factual questions in the first instance.” CRST Van
Expedited, Inc. v. EEOC, 578 U.S. 419, 420 (2016).
“Mindful that this is a court of final review and not
first view," Matsushita Elec. Industrial Co. v. Epstein,
516 U.S. 367, 399 (1996) (GINSBURG, J. concurring
in part and dissenting in part), this Court ordinarily
“do[es] not decide in the first instance issues not
decided below." Adarand Constructors, Inc. v. Mineta,
534 U.S. 103, 109, 151 L. Ed. 2d 489, 122 S. Ct. 511
26
(2001) (per curiam) (internal quotation marks
omitted).
Accordingly, this Court should deny
certiorari here. See e.g., Webster v. Cooper, 558 U.S.
1039, 1041 (2009) (SCALIA, J. dissenting) [“Since he
did not argue that ground to the Court of Appeals, and
since that court did not address it, we would almost
certainly deny certiorari”]; EEOC v. Federal Labor
Relations Authority, 476 U.S. 19, 24 (1986) [where
petitioner failed to raised issues in the Court of
Appeals, “[u]nder these circumstances, several central
issues on which resolution of the question presented
may well turn cannot be reached or resolved.
Accordingly, we dismiss the writ of certiorari as
improvidently granted.”]
IV.
The Court Of Appeal’s Decision Below Is
Not In Tension With Koontz Or This
Court’s Recent Takings Precedents
A.
The Decision Below Is Not In Tension With
Koontz.
Contrary to Mr. Sheetz’s argument, the
Decision below is not in tension with Koontz because
Koontz simply did not address the issue raised in his
Petition. Mr. Sheetz argues that Koontz concluded
“that the Nollan/Dolan standard applies to all permit
exactions, including legislative ones,” and affirmed
that “all exactions in the land-use permitting context,
whether or not garbed in legislation, are subject to
scrutiny under the unconstitutional-conditions
doctrine.” Petition, 19, 20, 24. That is incorrect. As
Justice Kagan correctly observed, the majority
27
opinion in Koontz did not address that issue. Koontz,
supra, 570 U.S. at 628 (KAGAN, J. dissenting). The
Court of Appeal made a similar observation:
We have carefully reviewed Koontz and
agree with our Supreme Court [of
California] that [Koontz] “does not
purport to decide whether the
Nollan/Dolan test is applicable to
legislatively
prescribed
monetary
permit conditions that apply to a broad
class of proposed developments.”
Koontz involved an adjudicative,
individual and discretionary land-use
determination, and the majority
opinion does not address whether the
Nollan/Dolan
test
applies
to
legislatively
mandated,
generally
applicable formulaic development fees.
[App. A-17 (citing California Building
Industry Assn. v. City of San Jose, 351
P.3d 974, 990 fn. 11 (Cal. 2015).]
See also Better Housing for Long Beach v. Newsom,
452 F.Supp.3d 921, 932 (C.D.Ca. 2020) [“Koontz itself
involved an adjudicative, individual determination,
and the majority never addressed Nollan/Dolan’s
application to general legislation.”] Therefore, the
Court of Appeal was correct in concluding that,
“because the monetary exaction in Koontz was not a
generally applicable development impact fee, the
decision, in our view, cannot be read as compelling the
application of the Nollan/Dolan test to the fee at issue
here.” App. A-18.
28
The Decision below is also not in tension with
Koontz because the Decision conforms to the
constitutional considerations discussed by this Court
in Koontz. This Court explained in Koontz that
government can impose two different kinds of
financial burdens on property owners. One kind
“‘operate[s] upon or alter[s] an identified property
interest’ by directing the owner of a particular piece of
property to make a monetary payment.” Koontz,
supra, 570 U.S. at 613 (quoting Eastern Enterprises v.
Apfel (1998) 524 U.S. 498, 540 (1998) (KENNEDY, J.
opinion)). This kind of financial demand “burdens
petitioner’s ownership of a specific parcel of land.” Id.
A “per se takings” approach under Nollan/Dolan is
proper for this kind of financial burden because “the
government commands the relinquishment of funds
linked to a specific, identifiable property interest.” Id.
at 613-614. Thus, the “fulcrum” of the Court’s decision
to apply Nollan/Dolan in Koontz was “the direct link
between the government’s demand and a specific
parcel of real property.” Id. at 614. Here, no such
direct link applies. The TIM fees are broadly applied
based on geographic areas and the type of
construction involved, which is akin to the “legislative
classifying areas of a jurisdiction” that Mr. Sheetz
admits does not fall within Dolan. Petition, 23.
The second kind of financial burden imposed on
property owners by government involves “property
taxes, user fees, and similar laws and regulations that
may impose financial burdens on property owners.”
Koontz, supra, 570 U.S. at 615-616. Such financial
burdens are not governed by Nollan/Dolan. Id.
Because generally applied and non-discretionary
legislative exactions do not target an “identified,”
29
“particular,” or “specific parcel of real property,” but
instead apply generally to parcels of land, they are
similar to “property taxes, user fees, and similar laws
and regulations” for which Nollan/Dolan does not
apply. As Justice Mosk opined in Ehrlich: “[I]f a
municipality
can
constitutionally
impose
a
development tax as long as it is rationally based, why
is a higher level of constitutional scrutiny required
when, as in the case of generally applicable
development fees, the ‘tax’ is earmarked for use in
alleviating specific development impacts rather than
for the general fund?” Ehrlich, supra, 12 Cal.4th at
894 (MOSK, J. concurring.)
Additionally, the dual objectives of “landowners
internaliz[ing] the negative externalities of their
conduct” and preventing the government from
“engaging in out-and-out extortion,” Koontz, supra,
570 U.S. at 605-06, are satisfied in this case because,
as the Court of Appeal properly concluded, “the
County met its initial burden to demonstrate that it
used a valid method for imposing the TIM fee, one that
established a reasonable relationship between the fee
charged and the burden posed by Sheetz’s
development of a single-family residence in
geographic Zone 6.” App. A-27
Thus,
the
constitutional
considerations
expressed in Koontz are satisfied by broadly applied,
nondiscretionary legislative exactions that meet the
“reasonable relationship” standard in the MFA, such
as the TIM fees here, even where Nollan/Dolan is not
applied. Surprisingly, none of that is discussed in the
Petition. And that is not raised or discussed in any of
the case law cited in the Petition.
30
B.
The Discretion Applied In Nollan And
Dolan Does Not Exist Here.
The Decision below is also not in tension with
Koontz because Nollan and Dolan involved
discretionary,
adjudicatory
application
of
governmental exactions. Mr. Sheetz’s argument that
Nollan and Dolan “did not involve administrative or
ad hoc decision-making” Petition, 21, is contradicted
not only by this Court’s statement in Lingle v. Chevron
U.S.A., Inc., 544 U.S. 528, 546 (2005), that “[b]oth
Nollan and Dolan involved Fifth Amendment takings
challenges to adjudicative land-use exactions,” but
also by the facts in the Nollan and Dolan cases.
In his discussion of Nollan, Mr. Sheetz
highlights the role of the legislative enactment of
California Public Resources Code section 30212,
which statute requires the property owners in that
case to obtain a coastal development permit from the
California Coastal Commission.
Petition, 21.
However, Mr. Sheetz ignores the fact that there was
significant adjudicative discretion on the part of the
Commission in the application of that statute. Such
discretion not only is inherent in the language of
section 30212, see Grupe v. California Coastal Com.,
166 Cal.App.3d 148 (Cal. Ct.App. 1985) [quoting
section 30212], but is also shown in this Court’s
discussion in Nollan about the individual permit that
was sought in that case:
[T]he Commission held a public
hearing, after which it made further
factual findings and reaffirmed its
imposition of the condition. It found
that the new house would increase
31
blockage of the view of the ocean, thus
contributing to the development of “a
‘wall’ of residential structures” that
would
prevent
the
public
“psychologically . . . from realizing a
stretch of coastline exists nearby that
they have every right to visit.”
[Citation.] The new house would also
increase private use of the shorefront.
[Citation.]
These
effects
of
construction of the house, along with
other area development, would
cumulatively “burden the public's
ability to traverse to and along the
shorefront.” [Citation.] Therefore the
Commission could properly require
the Nollans to offset that burden by
providing additional lateral access to
the public beaches in the form of an
easement across their property.
[Nollan, supra, 483 U.S. at 828-829.]
This Court also pointed out,
[t]he Nollans’ new house, the
Commission found, will interfere with
“visual access” to the beach. That in
turn (along with other shorefront
development) will interfere with the
desire of people who drive past the
Nollans’ house to use the beach, thus
creating a “psychological barrier” to
“access.” The Nollans’ new house will
also, by a process not altogether clear
from the Commission’s opinion but
32
presumably potent enough to more
than offset the effects of the
psychological barrier, increase the use
of the public beaches, thus creating
the need for more “access.” These
burdens on “access” would be
alleviated by a requirement that the
Nollans provide “lateral access” to the
beach. [Id. at 838.]
Thus, the Commission’s findings in Nollan involved
significant adjudicative discretion on the part of the
Commission in determining how to apply the public
access requirement in section 30212. See e.g., La Costa
Beach Homeowners' Assn. v. California Coastal Com.,
101 Cal.App.4th 804, 817 (Cal. Ct. App. 2002)
[discusses “Commission’s exercise of discretion in this
case” regarding how public beach access is to be
provided under section 30212.] Such administrative
discretion in the application of the exaction warrants
Nollan/Dolan review. But no such discretion exists
in the application of the TIM fees here. That fact is
nowhere mentioned in the Petition.
The exaction imposed on the property owner in
Dolan was similarly applied through the local
agency’s discretion. Mr. Sheetz discusses the role of
the City of Tigard (Oregon) Community Planning
Commission in granting the petitioner’s permit
application in the Dolan case subject to conditions
imposed by the Community Development Code
(“CDC”). Petition, 22-23. However, Mr. Sheetz fails to
discuss the adjudicatory and discretionary application
of the CDC by the Commission. This Court explained:
33
Petitioner requested variances from
the CDC standards. Variances are
granted only where it can be shown
that, owing to special circumstances
related to a specific piece of the land,
the literal interpretation of the
applicable zoning provisions would
cause “an undue or unnecessary
hardship” unless the variance is
granted. CDC § 18.134.010, App. to
Brief for Respondent B-47. Rather
than posing alternative mitigating
measures to offset the expected
impacts of her proposed development,
as allowed under the CDC, petitioner
simply argued that her proposed
development would not conflict with
the policies of the comprehensive plan.
Id., at E-4. The Commission denied
the request. [Dolan, supra, 512 U.S.
at 380-381 (emphasis added).]
Thus, Dolan involved wide adjudicative discretion
given to the administrative staff and City officials in
deciding whether to exempt the property owner from
the legislatively adopted standards of the CDC
through the variance process.
The recent decision by the Sixth Circuit Court
of Appeals in Knight v. Metro. Gov’t of Nashville &
Davidson Cnty., 67 F.4th 816 (6th Cir. 2023), relied
upon by Mr. Sheetz and amicus curiae, applied the
Nollan/Dolan standard to an ordinance that imposed
as conditions for building permits the obligations to
either build a sidewalk or pay an in-lieu fee, and to
34
dedicate a right-of-way and/or public pedestrian
easement across the property. However, unlike
property owners in El Dorado County under the TIM
fees here, a landowner could be exempted from the
right-of-way and/or easement in Knight either
through a “waiver” by a zoning administrator or
through a “variance” granted by the Board of Zoning
Appeals. Id. at 820-821. Indeed, the plaintiff in that
case sought such a waiver and variance, which were
denied. Id. Thus, the exaction in Knight was
ultimately applied to the landowner because of the
discretionary decisions of local zoning officials. That
discretionary application of the exaction in Knight is
akin to the adjudicative and ad-hoc exaction in Dolan,
and unlike the non-discretionary application of the
TIM fees to Mr. Sheetz’ project. As discussed above,
that distinction is fundamental to the application of
Nollan/Dolan in Koontz. But the amicus briefs omit
any discussion of that key distinction. See e.g.,
Buckeye Brief, 10-15.
Because the discretionary and adjudicatory
application of the exactions by administrative officials
that was present in Koontz, Nollan and Dolan did not
exist in the County’s application of the TIM fees to Mr.
Sheetz’ building project, the Decision below is not in
tension with those precedents of this Court. Again,
that key fact is simply avoided in the Petition and in
the amicus briefs in support of the Petition.
35
C.
The Decision Below Is Not In Tension With
Cedar Point And Pakdel.
Mr. Sheetz’s reliance on Cedar Point Nursery v.
Hassid, 141 S.Ct. 2063 (2021), is misplaced. Petition,
24-25. In Cedar Point, a California regulation allowed
representatives of a labor organization to enter an
agricultural employer’s property to solicit support for
unionization for up to three hours per day, 120 days
per year. Id. at 2069. This Court held that the
regulation violated the takings clause because it
“appropriate[d] a right to invade the growers’ property
and therefore constitute[d] a per se physical taking.”
Id. at 2072. This Court reasoned that the regulation
violated the right to exclude, which is “ ‘one of the most
treasured’ rights or property ownership.” Id. In
concluding that the regulation constituted a physical
taking as opposed to a regulatory taking, the court
explained that the “essential question is not . . .
whether the government action at issue comes garbed
as a regulation (or statute, or ordinance, or
miscellaneous decree). It is whether the government
has physically taken property for itself or someone
else—by whatever means—or has instead restricted a
property owner’s ability to use his own property.” Id.
But Cedar Point is distinguishable from the Decision
below. Cedar Point involved a state regulation that
only applied to property owned by agricultural
employers. Cedar Point does not purport to address
whether the heightened scrutiny of the Nollan/Dolan
test applies to the circumstances presented here – a
legislatively
mandated,
formulaic
and
nondiscretionary development impact fee that applies to
a broad class of proposed developments, and that
meets the “reasonable relationship” test of the MFA
36
(or a similar requirement). Therefore, the general
observation by this Court in Cedar Point that
Mr. Sheetz and amicus curiae rely upon – “whether
the government action at issue comes garbed as a
regulation (or statute, or ordinance, or miscellaneous
decree)” – Petition, 25; PLF Brief, 9 – is not the
dispositive issue in this case. The Decision below is not
in tension with Cedar Point.
Mr. Sheetz’s argument that the Decision below
is “in tension” with Pakdel v. City & County of San
Francisco, 141 S.Ct. 2226 (2021), is similarly
incorrect. In his description of the City of
San Francisco’s lifetime lease requirement in that
case, Mr. Sheetz admits that petitioners in that case
asked the city “to either excuse them from executing
the lifetime lease or compensate them for the lease.”
Petition, 26 (quoting Pakdel, supra, 141 S.Ct. at 2228
(emphasis added). In fact, the city “twice denied their
requests for the exemption.” Pakdel, supra, 141 S.Ct.
at p. 2229 (emphasis added). The Ninth Circuit in
Pakdel held that the City’s decision was not truly
“final” for purposes of a federal takings action
“because petitioners had made a belated request for
an exemption at the end of the administrative process
instead of timely seeking one ‘through the prescribed
procedures.’ ” Id. (citation omitted) (emphasis added).
In other words, the Ninth Circuit held that “a
conclusive decision is not really ‘final’ if the plaintiff
did not give the agency the ‘opportunity to exercise its
“flexibility or discretion” ‘ in reaching the decision.”
Id. (citation omitted) (emphasis added). This Court
reversed and remanded the case because “the Ninth
Circuit’s view of finality is incorrect.” Id. at pp. 22302231. There is no discussion in Pakdel regarding
37
whether the heightened scrutiny of the Nollan/Dolan
test applies to the circumstances presented here - a
legislatively
mandated,
formulaic
and
nondiscretionary development impact fee that applies to
a broad class of proposed developments, and meets the
“reasonable relationship” test in the MFA. While
Pakdel involved an adjudicative determination of an
“excuse” or “exemption” to the lifetime lease
requirement, the case at bar does not involve such an
adjudicative decision by a local agency regarding an
ad hoc determination of an excuse or exemption to a
generally applied legislative requirement. Thus, the
Decision below is not in tension with Pakdel.
CONCLUSION
For the reasons stated above, Respondent
requests that this Court deny Mr. Sheetz’s Petition
For Writ Of Certiorari in its entirety.
Respectfully submitted,
/s/ Glen C. Hansen
Glen C. Hansen
Counsel of Record
Abbott & Kindermann, Inc.
Counsel for Respondent
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.