Amicus Curiae Brief — George Sheetz, Petitioner v. County of El Dorado, California

Supreme Court briefNov 17, 2023

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No. 22-1074

In the Supreme Court of the United States

__________________

GEORGE SHEETZ,

Petitioner,

COUNTY OF EL DORADO, CALIFORNIA,

Respondent.

__________________

On Writ of Certiorari to the Court of Appeal of

California, Third Appellate District

__________________

Brief on the Merits for Amici Curiae California

Building Industry Ass’n and National Ass’n of

Home Builders in Support of Petitioner

__________________

David P. Lanferman

Counsel of Record

Douglas J. Dennington

Jayson A. Parsons

RUTAN & TUCKER, LLP

455 Market Street, Suite 1870

San Francisco, CA 94105

Tel: (650) 263-7900

dlanferman@rutan.com

ddennington@rutan.com

jparsons@rutan.com

Counsel for Amici Curiae

California Building Industry Association

and National Association of Home Builders

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

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

INTERESTS OF THE AMICI CURIAE . . . . . . . . . . 1

National Association of Home Builders.. . . . . 1

The

California

Building

Industry

Association. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Amici have direct interests in reversal and

correction of the decision below. . . . . . . . . . . . 2

SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . 5

SUMMARY OF FACTS . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

THE DECISION IS LEGALLY UNSOUND,

IS IN CONFLICT WITH THE BROADLYAPPLICABLE DOCTRINE PROHIBITING

UNCONSTITUTIONAL CONDITIONS, AND

WRONGLY ASSUMES THERE IS A

CONSTITUTIONALLY-RELEVANT

DISTINCTION BETWEEN “GENERALLY

APPLICABLE EXACTIONS” AND

EXACTIONS “IMPOSED ON A PROJECTSPECIFIC BASIS.” . . . . . . . . . . . . . . . . . . . . 12

There is no principled constitutional basis for

allowing an “exemption” from the prohibition

against the imposition of unconstitutional

conditions for “legislatively-established” or

“generally applicable” development fees and

exactions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. The prohibition of unconstitutional

conditions is applied broadly to all “units

of government.” . . . . . . . . . . . . . . . . . . . . 14

2. In determining the applicability of the

Nollan/Dolan requirements, there is no

valid basis to distinguish between

“legislatively established” exactions and

exactions imposed otherwise. . . . . . . . . . 17

3. Unjustified and disproportionate

exactions may be wrongly “extorted” by

“quasi-legislative” action at least as easily

as otherwise.. . . . . . . . . . . . . . . . . . . . . . . 18

4. Nearly all development fees and exactions

are derived from some “legislative” or

“quasi-legislative” authorization. . . . . . . 21

5. The relevant “distinction” regarding the

applicability of Nollan’s and Dolan’s

standards of judicial review is actually

between all types of “exactions” of

property or money – and traditional nonconfiscatory regulations on the use of

property. . . . . . . . . . . . . . . . . . . . . . . . . . . 24

II.

UNRELATED OR DISPROPORTIONATE

FEES

AND

EXACTIONS,

UNCONSTRAINED BY NOLLAN/DOLAN,

HAVE DISASTROUS IMPACTS ON

HOUSING AND PUBLIC POLICY. . . . . . . . 27

iii

Development fees, unconstrained by the

constitutional requirements to be related to,

and at least “roughly proportional” with,

impacts of development, reduce housing

supply and affordability. . . . . . . . . . . . . . . . . 27

Exempting “certain fees” from Nollan/Dolan

aggravates public policy and equity concerns

regarding access to housing. . . . . . . . . . . . . . 30

III.

OTHER LOWER COURTS REFUSE TO

APPLY THE “EXEMPTION” FROM

NOLLAN/DOLAN CLAIMED IN SHEETZ. 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

TABLE OF AUTHORITIES

CASES

Agins v. City of Tiburon,

447 U.S. 255 (1980). . . . . . . . . . . . . . . . . . . . . . . 25

Anderson Creek Partners, L.P. v. Cnty. of Harnett,

876 S.E.2d 476 (N.C. 2022). . . . . . . . . . . . . . 28, 33

Ballinger v. City of Oakland,

24 F.4th 1287 (9th Cir. 2022) . . . . . . . . . 14, 32, 33

B.A.M. Dev. LLC v. Salt Lake Cnty.,

128 P.3d 1161 (Utah 2006) . . . . . . . . . . . . . . . . . 21

Beck v. City of Whitefish,

653 F. Supp. 3d (D. Mont. Jan. 27, 2023) . . . . . 33

Cal. Bldg. Indus. Ass’n v. Bay Area Air Quality

Mgmt. Dist.,

362 P.3d 792 (Cal. 2015). . . . . . . . . . . . . . . . . . . . 2

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

577 U.S. 1179 (2016). . . . . . . . . . . . . . . . . . . . . . 18

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021). . . . . . . . . . . 4, 5, 12, 27, 32

Charter Twp. of Canton v. 44650, Inc.,

2023 WL 2938991 (Mich. Ct. App. 2023) . . . . . . 33

Dolan v. City of Tigard,

512 U.S. 374 (1994). . . . . . . . . . . . . 3, 4, 5, 6, 7, 8,

9, 10, 11, 12, 13, 14,

15, 16, 17, 23, 24, 25,

26, 27, 28, 29, 30,

32, 33, 34, 35

Ehrlich v. City of Culver City,

911 P.2d 429 (Cal. 1996). . . . . . . . . . . . . . 9, 15, 23

Fassett v. City of Brookfield,

975 N.W.2d 300 (Wis. Ct. App. 2022). . . . . . . . . 33

F.P. Dev., LLC v. Charter Twp. of Canton,

16 F.4th 198 (6th Cir. 2021) . . . . . . . . . . . . . . 4, 20

Frank Lyon Co. v. United States,

435 U.S. 561 (1978). . . . . . . . . . . . . . . . . . . . . . . 17

Heritage at Pompano Hous. Partners, L.P. v. City of

Pompano Beach, 2021 WL 8875658

(S.D. Fla. Dec. 15, 2021) . . . . . . . . . . . . . . . . . . . 26

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015). . . . . . . . . . . . . . . . . . . . . . . 26

Knight v. Metropolitan Government of Nashville &

Davidson County,

67 F.4th 816 (6th Cir. 2023) . . . 10, 11, 19, 20, 24,

26, 32

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

570 U.S. 595 (2013). . . . . . . . . . . 3, 5, 6, 7, 12, 13,

14, 15, 16, 26, 35

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987). . . . . . . . . . . . . . . 3, 4, 5, 6, 7,

8, 9, 10, 11, 12,

13, 14, 15, 16, 17,

24, 25, 26, 27, 28, 29,

30, 32, 33, 34, 35

Pakdel v. City & County of San Francisco,

141 S. Ct. 2226 (2021). . . . . . . . . . . . . . . . . . . . . 32

Pakdel v. City & Cnty. of San Francisco,

2022 WL 14813709 (N.D. Cal. Oct. 25, 2022) . . 33

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

515 U.S. 1116 (1995). . . . . . . . . . . . . . . . . . . . . . 18

Perry v. Sindermann,

408 U.S. 593 (1972). . . . . . . . . . . . . . . . . . . . 14, 16

Regan v. Taxation With Representation of Wash.,

461 U.S. 540 (1983). . . . . . . . . . . . . . . . . . . . . . . 16

San Remo Hotel L.P. v. City & Cnty. of San

Francisco,

41 P.3d 87 (Cal. 2002). . . . . . . . . . . . . . . 15, 19, 20

Sheetz v. Cnty. of El Dorado,

300 Cal. Rptr. 3d 308 (Cal. Ct. App. 2022) 5, 6, 7,

8, 9, 10, 11, 16, 17,

21, 23, 24, 27, 32

Stop the Beach Renourishment, Inc. v. Fla. Dep’t of

Env’t Prot.,

560 U.S. 702 (2010). . . . . . . . . . . . . . . . . . . . . . . 17

Town of Flower Mound v. Stafford Ests. Ltd. P’ship,

135 S.W.3d 620 (Tex. 2004) . . . . . . . . . . . . . . . . 20

Tyler v. Hennepin County,

598 U.S. 631 (2023). . . . . . . . . . . . . . . . . . . . . . . 34

Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926). . . . . . . . . . . . . . . . . . . . . . . 25

Walker v. City of San Clemente,

192 Cal. Rptr. 3d (Cal. Ct. App. 2015) . . . . . . . . 22

vii

Wolf Ranch LLC v. City of Colorado Springs,

220 P.3d 559 (Colo. 2009) . . . . . . . . . . . . . . . . . . 22

STATUTES

Cal. Gov’t Code § 65589.5(a) . . . . . . . . . . . . . . . . . . 28

Colo. Rev. Stat. Ann. § 29-20-203(1) (West 2023) . . . 4

Utah Code Ann. § 17-27a-507(1) (West 2023). . . . . . 4

OTHER AUTHORITIES

Matthew Baker, Much Ado About Nollan/Dolan:

The Comparative Nature of the LegislativeAdjudicative Distinction in Exactions, 42 URB.

LAW. 171 (2010). . . . . . . . . . . . . . . . . . . . . . . 21, 32

Vicki Been, Impact Fees and Housing Affordability,

8 CITYSCAPE: J. OF POL’Y DEV. & RSCH. (2005) . 31

Fred P. Bosselman, Dolan Works, TAKING SIDES ON

T AKINGS I SSUES : P UBLIC AND P RIVATE

PERSPECTIVES (Thomas E. Roberts Ed. 2002) . . 17

CAL. LAND USE PRACTICE § 18.1 et seq., Exactions:

Dedications and Development Impact Fees

(Cont. Educ. Bar 2022). . . . . . . . . . . . . . . . . . . . 22

Paul Emrath, NAT’L ASS’N OF HOME BUILDERS,

GOVERNMENT REGULATION IN THE PRICE OF A

NEW HOME: 2021 (2021), https://perma.cc/42VY4K9L . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

viii

Paul Emrath & Caitlin Sugrue Walter, NAT’L

MULTIFAMILY HOUS. COUNCIL & NAT’L ASS’N OF

HOME BUILDERS, REGULATION: 40.6 PERCENT OF

THE COST OF MULTIFAMILY DEVELOPMENT

(2023), https://perma.cc/XJ7E-UJLD . . . . . . . 3, 30

Christopher T. Goodin, Comment, Dolan v. City of

Tigard and the Distinction Between

Administrative and Legislative Exactions: “A

Distinction Without a Constitutional Difference,”

28 U. HAW. L. REV. 139 (2005) . . . . . . . . . . . 22, 32

Steven Haskins, Closing the Dolan Deal: Bridging

the Legislative/Adjudicative Divide, 38 URB.

LAW. 487 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . 32

LONGTIN’S CAL. LAND USE § 8.43, Procedures for

Adopting Fees (2013) . . . . . . . . . . . . . . . . . . . . . 23

Sarah Mawhorter et al., TERNER CTR. FOR HOUS.

INNOVATION, IT ALL ADDS UP: THE COST OF

H OUSING D EVELOPMENT FEES IN SEVEN

CALIFORNIA

CITIES

(2018),

https://perma.cc/R7E8-28DD . . . . . . . . . . . . 29, 30

Hayley Raetz et al., TERNER CTR. FOR HOUS.

INNOVATION, RESIDENTIAL IMPACT FEES IN

CALIFORNIA: CURRENT PRACTICES AND POLICY

CONSIDERATIONS (2019), https://perma.cc/Y9TRUJ73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 31

Inna Reznik, Note, The Distinction Between

Legislative and Adjudicative Decisions in

Dolan v. City of Tigard, 75 N.Y.U. L. Rev. 242

(2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

David Schleicher, City Unplanning, 122 YALE L.J.

1670 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATE OF CAL., LEGISLATIVE ANALYST’S OFFICE,

CALIFORNIA’S HIGH HOUSING COSTS: CAUSES AND

CONSEQUENCES (2015), https://perma.cc/DW74CXZB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

U.S. DEP’T OF HOUS. & URB. DEV., OFF. OF POL’Y

DEV. & RSCH., IMPACT FEES & HOUSING

AFFORDABILITY: A GUIDE FOR PRACTITIONERS

(2008), https://perma.cc/3CP7-XRRV . . . . . . . . . 31

Na Zhao, NAT’L ASS’N OF HOME BUILDERS, NAHB

PRICED-OUT ESTIMATES FOR 2023 (2023),

https://perma.cc/M36N-VZWB . . . . . . . . . . . . . . 28

INTERESTS OF THE AMICI CURIAE

The NATIONAL ASSOCIATION OF HOME

BUILDERS (“NAHB”) and the CALIFORNIA

BUILDING INDUSTRY ASSOCIATION (“CBIA”),

respectfully submit the accompanying brief as amici

curiae in support of the Petitioner, George Sheetz.1

National Association of Home Builders.

The National Association of Home Builders

(“NAHB”) is a Washington, D.C. based trade

association whose mission is to enhance and promote

housing availability and the home-building industry.

Chief among NAHB’s goals is providing and expanding

opportunities for all people to possess safe, decent, and

affordable housing. NAHB is a federation of more than

700 state and local associations, comprised of

approximately 140,000 members consisting of home

builders, remodelers, suppliers, and other professionals

supporting the home building industry. NAHB is an

active and informed advocate for home building and

housing production. It frequently participates as a

party litigant and amicus curiae to safeguard the

constitutional and statutory rights and economic

interests of its members, and all others interested in

the availability and affordability of housing nationwide.

Rule 37.6 disclosure: This Brief has been authored in whole

by the undersigned counsel on behalf of NAHB and CBIA, and no

monetary contributions were made by counsel or any party (other

than CBIA and NAHB) to fund the preparation of the Brief.

The

California

Association.

Building

Industry

The California Building Industry Association

(“CBIA”) is a statewide, non-profit trade association of

people and entities devoted to the planning,

construction, and provision of homes for the people of

California. It is comprised of more than 2,500 member

companies, including a wide range of people,

businesses, and diverse groups dedicated to the

provision of much-needed housing for Californians at

all levels of affordability and accessibility. Collectively,

CBIA’s members employ approximately 100,000 people,

and are responsible for providing approximately

80 percent of all new homes built and sold annually in

California. CBIA is a judicially-recognized advocate for

housing “representing homebuilders, architects, trade

contractors, engineers, designers, and other building

industry professionals.” Cal. Bldg. Indus. Ass’n v. Bay

Area Air Quality Mgmt. Dist., 362 P.3d 792, 795 (Cal.

2015).

CBIA previously submitted an amicus brief to the

California Supreme Court in support of Mr. Sheetz’s

petition for review filed with that Court.

Amici have direct interests in reversal and

correction of the decision below.

As regular and frequent applicants for development

approvals, the members of NAHB and CBIA are

routinely immersed in the land use and development

processes, which now include ubiquitous demands that

builders pay or provide a growing multitude of

development fees and exactions. Unconstrained – and

disproportionate – fees unduly inflate the costs of

housing and limit both the supply and affordability of

housing. Such regulatory costs and exactions add

significantly to the costs of housing production:

regulatory costs (mainly consisting of fees and

exactions) were recently found to comprise a staggering

40.6% of the total costs of multi-family housing

development nationally in 2022.2

Reasonably-related and proportionate fees can allow

for the appropriate internalization of development

impacts without stifling the feasibility of development.

NAHB and CBIA work in many communities and

jurisdictions that assure that their fees are both

reasonably-related and proportional to impacts, as

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

825 (1987) (requiring the government to show an

“essential nexus” between the alleged public impact of

development and the fee or exaction), Dolan v. City of

Tigard, 512 U.S. 374 (1994) (the government must also

show that the amount or burden of the exaction or fee

is at least roughly proportional to the alleged impact

the exaction or fee is intended to address), and Koontz

v. St. Johns River Water Mgmt. Dist., 570 U.S. 595

(2013) (logically holding that Nollan and Dolan apply

Paul Emrath & Caitlin Sugrue Walter, NAT’L MULTIFAMILY

HOUS. COUNCIL & NAT’L ASS’N OF HOME BUILDERS, REGULATION:

40.6 PERCENT OF THE COST OF MULTIFAMILY DEVELOPMENT (2023),

https://perma.cc/XJ7E-UJLD (fees and exactions found to comprise

over 26% of the total cost of multifamily development).

to monetary exactions and fees, as well as exactions of

possessory interests in property).3

As this Court recently observed in Cedar Point

Nursery v. Hassid, 141 S. Ct. 2063, 2079 (2021):

“[B]oth the nexus and rough proportionality

requirements of the constitutional conditions

framework should not be difficult to satisfy.” Amici

and their members can attest to the truth of this

statement; it is not difficult to calculate and establish

fees that meet those requirements – but only in those

jurisdictions where the courts respect and adhere to

this Court’s holdings.4

The questions presented in this case are of critical

“real-world” importance in the realms of development

and housing construction, because some courts still

refuse to consistently apply the Nollan/Dolan

standards to development fees and exactions, which

This Brief refers to the first two decisions, collectively, as

“Nollan/Dolan.”

Indeed, some states have incorporated the “essential nexus”

and “rough proportionality” requirements in legislation governing

development fees without triggering fiscal chaos. See e.g., Colo.

Rev. Stat. Ann. § 29-20-203(1) (West 2023) (Colorado’s Regulatory

Impairment of Property Rights Act, “RIPRA,” requiring an

essential nexus and rough proportionality); Utah Code Ann. § 1727a-507(1) (West 2023) (same). As observed in F.P. Dev., LLC v.

Charter Twp. of Canton, 16 F.4th 198, 207 (6th Cir. 2021): “In

other state court cases, . . . the government generally satisfies the

nexus and rough proportionality test with ease by introducing

some evidence relating to the ‘methodology and functioning’ of its

exactions.”

dramatically impacts the feasibility and viability of all

kinds of development activity nationwide.

SUMMARY OF ARGUMENTS

A. The decision below is legally unsound and

inconsistent with this Court’s controlling authority that

generally prohibits “the government” from imposing

unconstitutional conditions as the price of approvals or

benefits, including permits to build homes. Nollan, 483

U.S. 825; Dolan, 512 U.S. 374; Koontz, 570 U.S. 595.

The decision wrongly rejects the applicability of

those constitutional constraints to the County’s projectspecific imposition of the disputed mitigation fees,

claiming to be “bound” by a purported “rule” prevailing

in California (and in a number of other jurisdictions)

that categorically precludes the application of the

Nollan/Dolan/Koontz standards to development

exactions loosely characterized as being “generally

applicable” – i.e., legislatively-established. Sheetz v.

Cnty. of El Dorado, 300 Cal. Rptr. 3d 308, 321 (Cal. Ct.

App. 2022). The court below defended its decision by

claiming that “[u]nder California law, only certain

development fees are subject to the heightened scrutiny

of the Nollan/Dolan test.” Id. at 316.

To the contrary, this Court has repeatedly held that

the unconstitutional conditions doctrine applies widely,

and generally prohibits a unit of government – of any

type – from imposing preconditions to approval that

require the applicant to surrender their constitutional

rights. See, e.g., Cedar Point Nursery, 141 S. Ct. at

2079. Sheetz, and other lower court decisions of its ilk,

would unjustifiably punch a “loophole” in the otherwise

broad prohibition of unconstitutional conditions. Such

decisions appear to be in denial of this Court’s

elucidation of the constitutional requirements

applicable to exactions imposed as conditions to

development approval generally, and the fact that this

Court has not exempted any category of conditions or

exactions from those requirements.

Since

Nollan/Dolan/Koontz prescribe requirements for the

substantive constitutionality of exactions, it does not

matter, nor should it, how the exaction is imposed or

how large a group is subject to the exaction.

B. Sheetz, and others like it, rest on the unsound

assumption that there is some constitutionally-relevant

basis for distinguishing between exactions that are

“administratively” imposed on a “project-specific” basis,

and those described as “legislatively-established”

and/or “generally applicable to a broad class of people”

for purposes of judicial review. As shown below, that

underlying assumption reflects misunderstandings

both as to this Court’s precedent and as to the realities

of land use practice and the “process” by which

exactions are created and imposed.

A purported “exemption” from the rule prohibiting

unconstitutional conditions on that basis would

swallow the rule and make hollow this Court’s

jurisprudence. Sheetz illustrates how such an illusory

distinction is misused to justify applying a different –

“anything goes” – standard to many or most exactions

in jurisdictions like California.

As this Court has indicated, the relevant

“distinction” is, rather, the distinction between nonconfiscatory legislation that regulates the use of

property (such as traditional “Euclidean” zoning), and

exactions (in whatever form) that require the surrender

of property or constitutional rights, as to which the

protections of the Nollan/Dolan standards are required.

C. There are devasting economic consequences

implicated by decisions like Sheetz. In California and

other jurisdictions that imagine the “legislativeexactions loophole” in the unconstitutional conditions

prohibition, the judicial refusal to consistently enforce

the principles of Nollan/Dolan/Koontz has allowed local

and state governments to establish and impose an everexpanding constellation of unconstrained – and often

economically-prohibitive – development exactions.

The widespread use and abuse of such

unconstrained fees is now widely recognized as a

leading factor in the limited supply – and exorbitant

cost – of housing in California and other places that

have disdained the applicability of the

Nollan/Dolan/Koontz constitutional standards.

It also allows local governments in those

jurisdictions to continue to disproportionately burden

new residents with misallocated costs of public

facilities, and allows NIMBY5 townships to perpetuate

failed policies that stifle housing production and

facilitate exclusion of certain communities from

housing.

An acronym for “Not In My Backyard,” NIMBY is a common

land use term used to express the concept of self-interested

residents who would rather development occur somewhere else

– and who vote accordingly. See, e.g., David Schleicher, City

Unplanning, 122 YALE L.J. 1670, 1672 n.1 (2013).

SUMMARY OF FACTS

The traffic impact mitigation fee for which Mr.

Sheetz sought judicial review in this case was

ostensibly based on the County’s “legislatively-enacted”

General Plan policy.

The amount of the fee is generally based on the

location of the project (i.e., the specific

geographic zone within the County) and the type

of project (e.g., single-family residential,

multifamily residential, general commercial).

The program requires that new development pay

the full cost of constructing new roads and

widening existing roads without regard to the

cost specifically attributable to the particular

project on which the fee is imposed.

Sheetz, 300 Cal. Rptr. 3d at 312.

Mr. Sheetz was required to pay a “traffic impact

mitigation fee” of more than $23,000, under protest.

Id. His timely attempt to question the fee in court was

abruptly shut down by the trial court’s summary

refusal to apply the doctrine prohibiting

unconstitutional conditions, based simply on its

misguided belief that in California, only certain fees

are subject to the Nollan/Dolan requirements.

As relevant here, the [trial] court concluded the

TIM fee was not subject to the requirements of

Nollan and Dolan (and therefore did not violate

the “unconstitutional conditions doctrine” as a

matter of law) because it is a legislatively

prescribed development fee that is generally

applicable to a broad class of property owners.

Id. at 313.6

The California Court of Appeal affirmed. As a

result of that adherence to the deviant California “rule”

that fees deemed to be of legislative derivation are

exempt from the Nollan/Dolan standards, the Sheetz

court found the County permissibly excused itself from

any obligation to demonstrate that such an amount of

fees was even “roughly proportional” to the County’s

costs of “mitigating” additional traffic (if any) caused by

Mr. Sheetz building a modest “single-family

manufactured home” on his residentially-zoned lot.

The Sheetz decision cited several older California

cases following Ehrlich v. City of Culver City, 911 P.2d

429, 447 (Cal. 1996), in which California courts simply

questioned whether this Court’s Dolan decision applied

where the disputed exaction “takes the form of a

generally applicable development fee or assessment.”

That initial judicial ambivalence about the applicability

of the Nollan/Dolan standards appears to have ossified

into what the Sheetz court considered to be “the rule –

by which we are bound – that generally applicable

development fees are not subject to the Nollan/Dolan

test.” 300 Cal. Rptr. 3d at 321. It is respectfully

submitted that such a purported categorical “rule” is

In reality, the traffic impact fee is not “generally applicable” to

“the broad class” of property owners who use and benefit from the

County’s roads and streets, but is only applicable to that small

portion of the community that may seek a permit to build

something on their land.

not consistent with the Fifth or Fourteenth

Amendments to the Constitution, nor consistent with

the actual holdings of this Court.

ARGUMENTS

The appellate court decision in Sheetz – and the

California Supreme Court’s unexplained refusal to

review it – further highlight the confusion among lower

courts as to whether there is, or should be, some

“exemption” from this Court’s general prohibition

against unconstitutional conditions if the challenged

exactions, imposed as conditions of land development

approvals, are characterized as legislatively imposed,

or generally-applicable.

Arguments seeking to justify such an exemption

were most recently – and comprehensively – rejected by

the Sixth Circuit in Knight v. Metropolitan Government

of Nashville & Davidson County, in which the Court

explained in detail why a legislatively-enacted

ordinance requiring the imposition of sidewalk

exactions as a condition of permit approval are not

exempt from the unconstitutional conditions doctrine

of Nollan/Dolan, concluding that

Nollan’s unconstitutional-conditions test applies

just as much to legislatively compelled permit

conditions as it does to administratively imposed

ones.

Nothing in the text or original

understanding of the Takings Clause justifies

Nashville’s requested distinction. Its requested

distinction also conflicts both with the Supreme

Court’s unconstitutional-conditions precedent

and with its takings precedent.

67 F.4th 816, 829 (6th Cir. 2023).

If left standing, the Sheetz decision would

improperly sanction the County’s imposition of “the full

cost” of new county-wide road improvements solely on

applicants for new building permits, despite the

appellate court’s acknowledgement that the County

admittedly made no effort to proportionately allocate

those costs between costs of improvements made

necessary by impacts of new development and costs

attributable to existing deficiencies or community

needs.

The unfounded refusal to apply the Nollan/Dolan

constitutional requirements on the artificial basis that

the exactions are deemed to be “legislatively

established” thus tolerates the imposition of

unconstitutional conditions that would otherwise be

prohibited. Cases like Sheetz do not deny that

unrelated and disproportionate fees and exactions are

unconstitutional conditions; rather they argue that

governments can get away with otherwise admittedly

“extortionate” conditions if the blackmail note is

written by a town council and addressed to “a group” of

unspecified (and indefinable) breadth.

As a direct result, disproportionate exactions are

condoned and add to the already extraordinary and

crushing costs of housing in California and other

jurisdictions that refuse to require governments to

show any nexus and proportionality between the

amount of fees demanded and the alleged public costs

of mitigating the alleged impacts of new development.

THE DECISION IS LEGALLY UNSOUND,

IS IN CONFLICT WITH THE BROADLYAPPLICABLE DOCTRINE PROHIBITING

UNCONSTITUTIONAL CONDITIONS, AND

WRONGLY ASSUMES THERE IS A

CONSTITUTIONALLY-RELEVANT

DISTINCTION BETWEEN “GENERALLY

APPLICABLE EXACTIONS” AND

EXACTIONS “IMPOSED ON A PROJECTSPECIFIC BASIS.”

This Court has repeatedly explained that the

Nollan/Dolan/Koontz standards are based on

application of the doctrine of unconstitutional

conditions in the context of land-use permitting. The

doctrine generally prohibits the government – whether

in its legislative, adjudicatory, or other embodiments –

from demanding the surrender of constitutional rights

as “the price” for receiving or enjoying discretionary

government-issued permits or benefits. See e.g., Dolan,

512 U.S. at 385; Cedar Point Nursery, 141 S. Ct. at

2072 (“The essential question is not . . . whether the

government action . . . comes garbed as regulation (or

statute, or ordinance, or miscellaneous decree).”).

There is no principled constitutional basis

for allowing an “exemption” from the

prohibition against the imposition of

unconstitutional conditions for

“legislatively-established” or “generally

applicable” development fees and

exactions.

This Court previously rejected similar attempts by

government actors in various state courts to carve out

“exceptions” to the broad applicability of the

constitutional requirements of Nollan and Dolan. In

Koontz, the Court colorfully explained that there was

no merit to the attempts of state courts to “effectively

inter[]” the constitutional protections articulated in

“those important decisions.” 570 U.S. at 599.

The Court rejected two previously-asserted

arguments that sought to limit the scope of those

“important decisions.” First, it rejected the argument

that they did not apply in cases where the permit

applicant refused to comply with the government’s

demands.

Next, it rejected the argument that

Nollan/Dolan requirements should not apply to

“monetary exactions.” Id. at 606–09, 613–18.

This case vividly illustrates the need for the Court

to again reject the efforts of some misguided lower

courts to “effectively inter” or unduly limit the

constitutional protections demanded by “those

important decisions.”

1. The prohibition of unconstitutional

conditions is applied broadly to all

“units of government.”

This

Court’s

jurisprudence

prohibits

unconstitutional conditions in general in many

situations. Perry v. Sindermann, 408 U.S. 593, 597

(1972). “[T]he doctrine barring unconstitutional

conditions is broader than the exactions context.”

Ballinger v. City of Oakland, 24 F.4th 1287, 1299 (9th

Cir. 2022) (citing Koontz, 570 U.S. at 604 (collecting

cases re same)).

The Court has not carved out an exception to that

doctrine that would allow the government in some

states to impose otherwise unconstitutional conditions

– provided only that they do so (1) in a land use

permitting context, and (2) base their conditions or

exactions of on some legislatively-established

authorization, or make their exactions applicable to a

large enough group of fee payers.

To the contrary, the Court has previously explained

the broad applicability of the unconstitutional

conditions doctrine in the context of development

permitting in its holdings in Nollan and Dolan as

follows:

In those cases, we held that a unit of

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, 570 U.S. at 599.

The Court did not suggest that “a unit of

government” might slip through a loophole in the

constitutional requirements, or insulate its exactions

from meaningful judicial review, by the artifice of

establishing the unlawful condition by way of

“legislative” action. It would indeed be strange if state

and local “units of government” could evade

constitutional mandates by such a simple dodge, or if

taking local “quasi-legislative” action served as a selfcreated loophole trumping the prohibition against

unconstitutional conditions.

The cases that exempt “certain fees” from

Nollan/Dolan are not even consistent as to the basis for

the purported exemptions. For example, a plurality of

the California Supreme Court in Ehrlich, 911 P.2d 429,

initially purported to exempt “a generally applicable

development fee or assessment,” (id. at 447 (plurality

opinion of Arabian, J.) imposed not “individually” but

“pursuant to an ordinance or rule of general

applicability” (id. at 464 (Kennard, J., concurring in

part and dissenting in part)). That same court would

later claim that “[t]he ‘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,” and restated

“the distinction we drew in Ehrlich [and other cases]

between ad hoc exactions and legislatively mandated,

formulaic mitigation fees.” San Remo Hotel L.P. v. City

& Cnty. of San Francisco, 41 P.3d 87, 105 (Cal. 2002)

(cleaned up, emphasis added). The Sheetz court below

stated the scope of the purported exemption yet

another way: “The requirements of Nollan and Dolan,

however, do not extend to development fees that are

generally applicable to a broad class of property owners

through legislative action.” 300 Cal. Rptr. 3d at 316

(emphasis added).

Is the purported “exemption” from Nollan/Dolan

based on “the general applicability” of the exaction

regime, or on the “breadth of the class” of impacted

property owners, or on the establishment of the

exaction “through legislative action” – or all of the

above? The inability of lower courts to provide a

consistent definition of the scope of the purported

exemption demonstrates its dubious provenance.

Courts in states such as California offer no coherent

constitutionally-based excuse for creating an

“exemption” from the doctrine based simply on how, or

by whom, “the Government” acts. By contrast, this

Court has consistently stated the doctrine in more

absolute terms: “We have said in a variety of

contexts that ‘the government may not deny a

benefit to a person because he exercises a

constitutional right.’” Koontz, 570 U.S. at 604

(quoting Regan v. Taxation With Representation of

Wash., 461 U.S. 540, 545, (1983)) (emphasis added); see

also Perry, 408 U.S. at 597.

There is no principled basis for allowing some lower

courts, such as the California state courts, to continue

to exempt “legislatively-established” fees and exactions

from the application of the unconstitutional conditions

doctrine in the economically-vital context of land use

and building permit approvals. See, e.g., Stop the

Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot.,

560 U.S. 702, 713–14 (2010) (“The Takings Clause . . .

is not addressed to the action of a specific branch or

branches. It is concerned simply with the act, and not

with the governmental actor.”).

2. In determining the applicability of the

Nollan/Dolan requirements, there is no

valid basis to distinguish between

“legislatively established” exactions and

exactions imposed otherwise.

“The law respects form less than substance” is a

maxim of jurisprudence honored by most courts. See,

e.g., Frank Lyon Co. v. United States, 435 U.S. 561, 573

(1978): “In applying this doctrine of substance over

form, the Court has looked to the objective economic

realities of a transaction rather than to the particular

form the parties employed.”

The decision in Sheetz, however, wrongly inverts

this principle in order to disregard the unlawful and

disproportionate substance of an exaction simply

because the exaction is perceived as coming in the

“form” of a legislative act, or an act “generally

applicable” to a broad group.

“To summarize, there is no logical reason why the

form of the exaction should dictate the test that

determines the fairness of it.” Fred P. Bosselman,

Dolan Works, TAKING SIDES ON TAKINGS ISSUES: PUBLIC

AND PRIVATE PERSPECTIVES, 345, 350 (Thomas E.

Roberts Ed. 2002).

Members of this Court have called out the fallacy of

this purported distinction for years:

It is not clear why the existence of a taking

should turn on the type of governmental entity

responsible for the taking. A city council can

take property just as well as a planning

commission can.

Moreover, the general

applicability of the ordinance should not be

relevant in a takings analysis. If Atlanta had

seized several hundred homes in order to build

a freeway, there would be no doubt that Atlanta

had taken property. The distinction between

sweeping legislative takings and particularized

administrative takings appears to be a

distinction without a constitutional difference.

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

1116, 1117–18 (1995) (Thomas, J., joined by O’Connor,

J., dissenting from denial of certiorari).7

3. Unjustified and disproportionate

exactions may be wrongly “extorted” by

“quasi-legislative” action at least as

easily as otherwise.

In the context of land use exactions and fees, the

purported justification most frequently offered for

imagining such a distinction is the unfounded

assumption in some courts, such as in California, that

See also Cal. Bldg. Indus. Ass’n v. City of San Jose, 577 U.S.

1179 (2016) (Thomas J., concurring in denial of certiorari) (“I

continue to doubt that the existence of a taking should turn on the

type of governmental entity responsible for the taking.”).

administrative or “quasi-adjudicatory” entities are

more likely than “legislative bodies” to abuse the power

to impose exactions or to extort unjustified money or

property interests. See San Remo Hotel, 41 P.3d at

103–05. The San Remo Hotel court cited absolutely no

evidence to support this naïve and wildly inaccurate

assumption.8 In any event, this “rationale” does not

reflect high regard for the integrity of either type of

governmental body.

To the contrary, it is widely recognized that fees

“are politically popular because they are charged to

developers rather than current residents.” Hayley

Raetz et al., TERNER CTR. FOR HOUS. INNOVATION,

RESIDENTIAL IMPACT FEES IN CALIFORNIA: CURRENT

PRACTICES AND POLICY CONSIDERATIONS 21 (2019)

(hereafter, “RESIDENTIAL IMPACT FEES IN CALIFORNIA”),

https://perma.cc/Y9TR-UJ73. Demanding fees from

“newcomers” can thus enable governments, including

elected legislative bodies, to shift much of the cost of

such improvements away from current users of public

infrastructure (e.g., the voting general public) to a

narrow segment of the public (e.g., prospective new

homebuyers and residents) not likely to be wellrepresented in the local electoral processes.

The Sixth Circuit in Knight appropriately

questioned this purported justification: “This claim

suffers from both legal and practical problems. . . .

It is the experience of the amici and their members, to the

contrary, that many local politicians enthusiastically campaign on

anti-development positions, and tout their “no growth” policies,

including high fees on newcomers.

Practically, an ‘extortion’ risk exists no matter the

branch of government responsible for the condition.”

67 F.4th at 835 (citing Town of Flower Mound v.

Stafford Ests. Ltd. P’ship, 135 S.W.3d 620, 641 (Tex.

2004)).

More importantly, those courts categorically

exempting “legislatively-derived” exactions (or

“generally-applicable” exactions) from the prohibition

against unconstitutional conditions offer no sound legal

or constitutional basis for doing so.9 If, as this Court

has repeatedly held, the Constitution prohibits “the

Government” from demanding extortionate fees or

other unconstitutional conditions, what precedent,

logic, or evidence might justify a loophole in that

prohibition based solely on whether the extortionate

fees are exacted based on “legislative authority”?

Nearly all exactions are derived from some source of

“legislative” action, whether from a town council’s

ordinance or from a state constitution or statute. And

“legislative action” can, and does frequently, result in

disproportionate and extortionate exactions as much as

otherwise. See e.g., F.P. Dev., LLC v. Charter Twp. of

Canton, 16 F.4th 198 (6th Cir. 2021) (holding that city’s

legislatively-enacted tree replacement ordinance

unlawfully resulted in imposition of unjustified

exaction of more than $47,000 of in-lieu tree

replacement fees).

As skeptically observed by the Texas Supreme Court, the San

Remo Hotel decision “provided the only justification for the

limitation – political reality.” Town of Flower Mound v. Stafford

Ests. Ltd. P’ship, 135 S.W.3d 620, 640 (Tex. 2004).

Alternatively, if the “exemption” is defended by

claiming the disputed exactions are “generally

applicable to a broad class,” that begs the question:

Where does the Constitution draw such an imaginary

line? How many is “a broad class”? How many more

lawsuits will be litigated to seek answers to such

vexing questions raised by cases like Sheetz?

4. Nearly all development fees and

exactions are derived from some

“legislative” or “quasi-legislative”

authorization.

There is no basis in actual land use practice for

courts to claim to espy a real or widespread distinction

based on the source of the authority for an exaction, or

based on the number of applicants upon whom the

exaction may be imposed. “In practical terms, the

distinction is simply an unworkable standard in the

context of land use regulation.” Matthew Baker, Much

Ado About Nollan/Dolan: The Comparative Nature of

the Legislative-Adjudicative Distinction in Exactions,

42 URB. LAW. 171, 179 n.64 (2010).

In fact, this is an artificial, or at least irrelevant,

distinction. “Some land-use decisions fall neatly within

the legislative/adjudicative categorical framework.

Most do not. . . . ‘[I]n reality, the discretionary powers

of municipal authorities exist along a continuum and

seldom fall into the neat categories of a fully

predetermined legislative exaction or a completely

discretionary administrative determination as to the

appropriate exaction.’” B.A.M. Dev. LLC v. Salt Lake

Cnty., 128 P.3d 1161, 1170 (Utah 2006) (quoting Inna

Reznik, Note, The Distinction Between Legislative and

Adjudicative Decisions in Dolan v. City of Tigard, 75

N.Y.U. L. Rev. 242, 266 (2000)).

“[T]he difficulty lies . . . in determining where,

exactly, generally applicable, legislatively formulated

fees end and adjudicatively imposed development

exactions begin.” Wolf Ranch LLC v. City of Colo.

Springs.10

Virtually all fees and exactions are “established” by

some source of legislative action authorizing the

governmental unit to ultimately “impose” a fee or

exaction. The legislatively-authorized fees or exactions

may then be “imposed” administratively on individual

projects, in a “second step,” when they apply for a

development permit.11 By contrast to zoning, which

applies continuously to all similarly-situated

properties, whether or not the property owner is

seeking a governmental permit, while fees must be

authorized by some first-step legislative action, they

are usually imposed only in response to a specific

application for an approval, as one-time charges. See

generally CAL. LAND USE PRACTICE § 18.1 et seq.,

Exactions: Dedications and Development Impact Fees

(Cont. Educ. Bar 2022).

See also Christopher T. Goodin, Comment, Dolan v. City of

Tigard and the Distinction Between Administrative and Legislative

Exactions: “A Distinction Without a Constitutional Difference,” 28

U. HAW. L. REV. 139 (2005).

See, e.g., Walker v. City of San Clemente, 192 Cal. Rptr. 3d 635,

640–42 (Cal. Ct. App. 2015) (explaining the two-step fee

establishment/imposition process under California law).

Local planning staff members do not typically have

the authority to unilaterally invent or demand such

exactions out of thin air. The unique in-lieu fees

negotiated “behind closed doors” in the Ehrlich case

may have been “ad hoc” and project-specific, but they

were created and imposed by the City Council itself.

As described in a leading California land use

treatise, the process by which development fees are

actually imposed on a builder or permit applicant

involves two steps:

Development fees are imposed in a twostep process. First, the local agency adopts an

ordinance or resolution levying fees to be

imposed on future development projects.

Second, the agency imposes the fees on a specific

project as a condition of development approval.

LONGTIN’S CAL. LAND USE § 8.43, Procedures for

Adopting Fees (2013).

The disputed fees in Sheetz were based on a

legislatively-adopted general plan policy but were

imposed on a “second-step” project-specific basis in the

course of an administrative permit-issuance process.

If the supposed “rule” invoked in Sheetz were to be

sustained, then virtually all fees and exactions will be

categorically exempt from the constitutional

protections mandated by this Court in Dolan.

5. The relevant “distinction” regarding the

applicability of Nollan’s and Dolan’s

standards of judicial review is actually

between all types of “exactions” of

property or money – and traditional

non-confiscatory regulations on the use

of property.

Those lower courts that claim to perceive a

purported distinction between two or more “types” of

development exactions for purposes of deciding

whether or not Nollan/Dolan is applicable do not

identify any clear constitutional authority for such a

distinction. Instead, they give only a narrow, grudging,

and misleading spin on some of the statements, or

dicta, from this Court.

Much of that misguided spin is often attributed to

misreading a bit of dictum in Dolan.12 In a footnote in

the majority opinion in Dolan (512 U.S. at 391 n.8) –

ostensibly responding to the dissent’s criticism of

“placing the burden on the city” to justify the

challenged exaction – a “distinction” was made as to

the standards applicable to two different types of

governmental action affecting property. However, the

distinction actually made in Dolan was not the same

distinction asserted by the lower court in Sheetz.

To the contrary, the Dolan majority contrasted the

city’s exaction of property rights in that case against

several cases involving challenges to traditional types

“This view treats one sentence in Dolan as trumping

everything else in the opinion.” Knight v. Metro. Gov’t of Nashville

& Davidson Cnty., 67 F.4th 816, 834 (6th Cir. 2023).

of regulations on the use of property: “The sort of land

use regulations discussed in the cases just

cited . . . [i.e., Euclid v. Ambler Realty Co., 272 U.S. 365

(1926) and Agins v. City of Tiburon, 447 U.S. 255

(1980)].” Id. at 385 (emphasis added). Similarly, the

majority agreed, in footnote 8, that

[the dissent] is correct in arguing that in

evaluating most generally applicable zoning

regulations, the burden properly rests on the

party challenging the regulation to prove that it

constitutes an arbitrary regulation of property

rights. See, e. g., Village of Euclid v. Ambler

Realty Co., 272 U.S. 365, . . . (1926). Here, by

contrast, the city made an adjudicative decision

to condition petitioner’s application for a

building permit on an individual parcel. In this

situation, the burden properly rests on the city.

See Nollan, 483 U.S. at 836.

Id. at 391 n.8 (emphasis added).

Thus, the “distinction” drawn in Dolan actually

contrasted the burden of proof required when

challenging “most generally applicable zoning

regulations” (as applied in Euclid) against the

imposition of conditions (having their basis in a general

plan policy) requiring the exaction of property interests

as the “price” of the project-specific permit at issue in

Dolan. See id. at 385.

Dolan’s footnote 8 did not purport to contrast two

types of “exactions,” nor did it purport to distinguish

“generally applicable exactions” from ad hoc or “quasiadjudicatory” exactions. Rather Dolan contrasted the

judicial review applicable to exactions generally

against the more deferential standard of review

sometimes applied to traditional (“Euclidean”) types of

legislation regulating the use of property.13

The relevant distinction made in the Dolan footnote

was thus between non-confiscatory regulation of

property use and exaction of property by the

Government. Such a distinction between governmental

action that regulates property and action aimed at

exacting or acquiring property is consistent with this

Court’s recognition of “the settled difference in our

takings jurisprudence between appropriation

and regulation.” Horne v. Dep’t of Agric., 576 U.S.

350, 362 (2015) (emphasis added).

The purported constitutional “distinction” between

legislative or “generally-applicable” exactions and the

administrative imposition of project-specific fees is thus

a false construct. Indeed, the Court’s applications of

Nollan/Dolan standards to exactions have actually

involved exactions based upon authority enacted in

some underlying “legislative” or “generally applicable”

actions, but imposed in a second-step:

In Koontz, for example, the government sought to

demand exactions from the permit applicant under the

At least one perceptive District Court has pointed out the error

of reading footnote 8 in the Dolan opinion as contrasting two

“types” of exactions. To the contrary, the Southern District of

Florida pointed out that “[t]he footnote [in Dolan] addresses

‘general zoning regulations,’ not all generally applicable

regulations.” Heritage at Pompano Hous. Partners, L.P. v. City of

Pompano Beach, 2021 WL 8875658, at *16 (S.D. Fla. Dec. 15, 2021)

(cited on another point in Knight, 67 F.4th at 829).

authority of “generally-applicable” state legislation, the

Henderson Wetlands Resource Management Act. 570

U.S. at 601.

In Cedar Point Nursery, 141 S. Ct. at 2069, the

condition was based on a generally-applicable state

regulation.

Even in Dolan itself, the challenged exaction was

imposed on Mrs. Dolan – much as in Sheetz – based on

the City’s quasi-legislative, “generally applicable,” land

use policies, as pointed out by Justice Souter in his

dissent.14

II.

UNRELATED OR DISPROPORTIONATE

F E E S

A N D

E X A C T I O N S ,

UNCONSTRAINED BY NOLLAN/DOLAN,

HAVE DISASTROUS IMPACTS ON

HOUSING AND PUBLIC POLICY.

Development fees, unconstrained by the

constitutional requirements to be related

to, and at least “roughly proportional”

with, impacts of development, reduce

housing supply and affordability.

NAHB estimates that almost 73% of the households

in the United States cannot afford a median priced

See 512 U.S. at 413–14 (Souter, J., dissenting). As the Justice

noted, the Dolan exactions were imposed pursuant to requirements

in the city’s legislatively-enacted development code, much the

same as the roadway exaction imposed in Sheetz.

home.15 It is widely recognized that unjustified, and

disproportionate, development fees and exactions

significantly impair the availability and affordability of

housing. See, e.g., Cal. Gov’t Code § 65589.5(a): “The

Legislature finds and declares . . . [t]he excessive cost

of the state’s housing supply is partially caused by

activities and policies of many local governments

that . . . require that high fees and exactions be paid by

producers of housing.”

The challenges of trying to provide housing that

approaches even a modest level of affordability are

widely recognized, especially in states like California.

See, e.g., STATE OF CAL., LEGISLATIVE ANALYST’S

OFFICE, CALIFORNIA’S HIGH HOUSING COSTS: CAUSES

AND CONSEQUENCES (2015) (hereafter, “CALIFORNIA’S

HIGH HOUSING COSTS”), https://perma.cc/DW74-CXZB.

Those challenges become even more severe if courts

refuse to apply the Nollan/Dolan requirements to fees

that are loosely characterized as “legislativelyestablished” and allow local governments to impose

unjustified fees that admittedly lack even “rough

proportionality” to the impacts of new development as

in this case. See, e.g., Anderson Creek Partners, L.P. v.

Cnty. of Harnett, 876 S.E.2d 476, 505–06 (N.C. 2022)

(acknowledging that the costs of development fees are

often passed to the ultimate purchasers of new homes).

See Na Zhao, NAT’L ASS’N OF HOME BUILDERS, NAHB PRICEDOUT ESTIMATES FOR 2023 (2023), https://perma.cc/M36N-VZWB.

California, where the state courts have refused to

apply the Nollan/Dolan constitutional requirements to

“legislatively established” development fees, stands out

for extraordinarily high development fees.

See

CALIFORNIA’S HIGH HOUSING COSTS at 13–19

(“[D]evelopment fees—charges levied on builders as a

condition of development—are higher in California

than the rest of the country.”).

A 2018 study