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

No. 22-1074

IN THE

Supreme Court of the United States

___________

GEORGE SHEETZ,

Petitioner,

v.

COUNTY OF EL DORADO, CALIFORNIA,

Respondent.

___________

On Writ of Certiorari to the California Court of

Appeal, Third Appellate District

___________

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

NINA HENRY

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

December 20, 2023

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION

AND

SUMMARY

OF

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

1

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

5

I. As Originally Understood, the Takings

Clause Applied Only to the Direct

Appropriation of Property ..........................

5

II. This Court’s Cases Have Applied the

Takings Clause to Physical

Appropriations of Property, the

Functional Equivalent of Such

Appropriations, and Government Efforts

to Evade the Clause’s Protections .............

14

III. The Traffic Impact Mitigation Program

Is Not an Unconstitutional Taking ...........

20

CONCLUSION .....................................................

23

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) ................................

3

Dolan v. City of Tigard,

512 U.S. 374 (1994) .................. 4, 16-18, 21, 22

First English Evangelical Lutheran Church

of Glendale v. Cnty. of Los Angeles,

482 U.S. 304 (1987) ....................................

5

Garneau v. City of Seattle,

147 F.3d 802 (9th Cir. 1998) ......................

21

Koontz v. St. Johns River Water Mgmt.

Dist.,

570 U.S. 595 (2013) .............................. 4, 18-21

Legal Tender Cases,

79 U.S. (12 Wall.) 457 (1870) ....................

13

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

544 U.S. 528 (2005) .................................... 3, 15

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ................................. 10-12

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ........................ 4, 16, 17, 21

N. Transp. Co. v. City of Chicago,

99 U.S. 635 (1878) ......................................

13

Pumpelly v. Green Bay & Miss. Canal Co.,

80 U.S. 166 (1871) ..................................... 14, 15

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104 (1978) ....................................

16

Pa. Coal Co. v. Mahon,

260 U.S. 393 (1922) ................................... 15, 16

Respublica v. Sparhawk,

1 U.S. (1 Dall.) 357 (Pa. 1788) ...................

6

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

Francisco,

27 Cal. 4th 643 (Cal. 2002) .......................

22

State ex rel. Civello v. City of New Orleans,

154 La. 271 (1923) ......................................

22

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

535 U.S. 302 (2002) ...................................

13

Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926) ................................... 16, 22

Constitutional Provisions and Legislative Materials

U.S. Const. amend. V .................................... 2, 5

Books, Articles, and Other Authorities

A Bill Concerning Mill Dams and Other

Obstructions of Water Courses, reprinted

in 2 The Papers of Thomas Jefferson,

1777 – 18 June 1779 (Julian P. Boyd ed.,

1950) ........................................................... 3, 8

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

1 William Blackstone, Commentaries with

Notes of Reference, to the Constitution

and Laws, of the Federal Government of

the United States; and of the

Commonwealth of Virginia (St. George

Tucker ed., 1803) ........................................ 6, 13

By-Law of Nov. 4, 1789, reprinted in ByLaws of the City of Hartford (Hudson &

Goodwin 1797) ............................................

9

Fundamental Constitutions of Carolina

art. 44 (1669), reprinted in 1 Bernard

Schwartz, The Bill of Rights: A

Documentary History (1971) ......................

7

John Hart, Fish, Dams, and James

Madison: Eighteenth-Century Species

Protection and the Original

Understanding of the Takings Clause, 63

Md. L. Rev. 287 (2004) .............................

3

John F. Hart, Land Use Law in the Early

Republic and the Original Meaning of the

Takings Clause, 94 Nw. U. L. Rev. 1099

(2000) ......................................................... 3, 7-9

Samuel Johnson, A Dictionary of the

English Language (1755-56) ......................

12

Douglas T. Kendall & Charles P. Lord, The

Takings Project: A Critical Analysis and

Assessment of the Progress So Far,

25 B.C. Envt’l Aff. L. Rev. 509 (1998) .......

5

v

TABLE OF AUTHORITIES -- cont’d

Page(s)

James Madison, Note to His Speech on the

Right to Suffrage (1821), in 3 The Records

of the Federal Convention of 1787 (Max

Farrand ed., 1911)......................................

11

James Madison, Observations on the

“Draught of a Constitution for Virginia”

(ca. Oct. 15, 1788), in 11 The Papers of

James Madison (Robert A. Rutland et al.

eds., 1977) ...................................................

11

Magna Carta art. 28 (1215), reprinted in

Sources of Our Liberties: Documentary

Origins of Individual Liberties in the

United States Constitution and Bill of

Rights (Richard L. Perry & John C.

Cooper eds., 1959) ......................................

7

Mass. Const. of 1780, reprinted in 3 The

Federal and State Constitutions, Colonial

Charters, and Other Organic Laws of the

States, Territories, and Colonies Now or

Heretofore Forming the United States of

America (Francis N. Thorpe ed., 1909) .....

9

Mass. Body of Liberties (1641), reprinted in

Sources of Our Liberties: Documentary

Origins of Individual Liberties in the

United States Constitution and Bill of

Rights (Richard L. Perry & John C.

Cooper eds., 1959) ......................................

6

vi

TABLE OF AUTHORITIES -- cont’d

Page(s)

Northwest Ordinance of 1787, art. 2,

reprinted in Sources of Our Liberties:

Documentary Origins of Individual

Liberties in the United States

Constitution and Bill of Rights (Richard

L. Perry & John C. Cooper eds., 1959) ......

10

Joseph L. Sax, Takings and the Police

Power, 74 Yale L.J. 36 (1964) ....................

12

Bernard Schwartz, Takings Clause—“Poor

Relation” No More?, 47 Okla. L. Rev. 417

(1994) ........................................................ 11, 12

Theodore Sedgwick, A Treatise on the Rules

Which Govern the Interpretation and

Application of Statutory and

Constitutional Law (1857) .........................

13

Speech Proposing Bill of Rights (June 8,

1789), in 12 J. Madison, The Papers of

James Madison (C. Hobson et al. eds.,

1979) ...........................................................

11

William Michael Treanor, The Original

Understanding of the Takings Clause

and the Political Process,

95 Colum. L. Rev. 782 (1995)........... 2, 5-7, 9-12

Vt. Const. of 1777, ch. I, art. II, reprinted

in 6 The Federal and State Constitutions,

Colonial Charters, and Other Organic

Laws of the States, Territories, and

Colonies Now or Heretofore Forming the

United States of America (Francis N.

Thorpe ed., 1909)........................................

9

1

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and to preserve the

rights and freedoms it guarantees. CAC has an

interest in ensuring that the Takings Clause of the

Fifth Amendment is interpreted in accordance with its

text and history and accordingly has an interest in this

case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In 2006, El Dorado County in California

established a Traffic Impact Mitigation fee program

(“the Program”) to finance the construction and

widening of roads in the County. Under the Program,

as refined through changes adopted in 2012, the

builders of new developments are required to help pay

for the cost of building and widening roads. As

relevant here, the Program imposes a flat fee for

certain residential developments and a variable fee

based on square footage for others. Pet. App. D-14-15.

The amount of the fee does not depend on the new

development’s specific impact on the roads.

In 2016, Petitioner applied for a permit to

construct a single-family home on his plot of land, and

the County agreed to issue the building permit on the

1 No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than amicus or its counsel made a monetary contribution to

its preparation or submission.

2

condition that he pay the Program fee of $23,420 for

improvements to the state highway and local roads.

The following year, Petitioner challenged the Program

arguing, among other things, that it was

unconstitutional under the Constitution’s Takings

Clause. The California state courts rejected this

challenge, Pet. App. A-1, C-1, and this Court should

affirm.

The Program at issue here does not violate the

Takings Clause for the simple reason that the County

is neither taking Petitioner’s property nor, in an effort

to evade the Takings Clause’s just compensation

requirement, requiring him to make a monetary

payment.

All the County is doing is requiring

Petitioner to pay a fee to help improve roads that

might be negatively affected by his development. The

Takings Clause does not prohibit—and this Court has

never understood it to prohibit—governments from

charging those sorts of fees. This Court should reject

Petitioner’s invitation to expand the scope of the

Clause in a manner that would be inconsistent with its

text and history, as well as this Court’s precedent.

The Takings Clause provides that “private

property [shall not] be taken for public use, without

just compensation.” U.S. const. amend. V. Consistent

with its text, the Clause was originally understood to

apply only to the direct appropriation of private

property. See William Michael Treanor, The Original

Understanding of the Takings Clause and the Political

Process, 95 Colum. L. Rev. 782, 782 (1995) (“[T]he

Takings Clause and its state counterparts originally

protected property against physical seizures, but not

against regulations affecting value.”).

At the time of the Founding, colonial and state

constitutions prohibited only the direct appropriation

3

of property, and governmental regulations that

affected the value of property were commonplace.

Indeed, James Madison, the drafter of the Takings

Clause, introduced legislation prohibiting landowners

from building a mill or dam unless a court inquest first

concluded that potential negative consequences to the

region could be prevented, mitigated, or repaid in

damages. A Bill Concerning Mill Dams and Other

Obstructions of Water Courses, reprinted in 2 The

Papers of Thomas Jefferson, 1777 – 18 June 1779, at

464, 466 (Julian P. Boyd ed., 1950). Under Madison’s

proposal, colonial landowners were required to pay

fees before developing their properties—much like the

fees Petitioner paid to the County—even when doing

so effectively destroyed the value of a mill site. See

John Hart, Fish, Dams, and James Madison:

Eighteenth-Century Species Protection and the

Original Understanding of the Takings Clause, 63 Md.

L. Rev. 287, 313 (2004) (describing “fish-passage laws

contemporary with the adoption of the Takings Clause

[that] prohibited obstruction of migratory fish by mill

dams”).

For decades, the Clause was applied consistently

with this understanding. See Cedar Point Nursery v.

Hassid, 141 S. Ct. 2063, 2071 (2021) (“Before the 20th

century, the Takings Clause was understood to be

limited to physical appropriations of property.”). And

even as this Court has expanded somewhat the scope

of the Takings Clause, it has been careful to limit the

Clause’s application to governmental actions that

could reasonably be considered equivalent to direct

appropriations that were within the scope of the

Clause’s original meaning, or that were efforts to

evade the Clause’s application to such appropriations.

See, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,

539 (2005) (explaining that categories of takings

4

“share a common touchstone,” as “[e]ach aims to

identify regulatory actions that are functionally

equivalent to the classic taking in which government

directly appropriates private property or ousts the

owner from his domain”).

In the permitting context, for example, this Court

has made clear that governments may not impose

conditions that are designed to evade the Takings

Clause’s requirements. As this Court explained in

Nollan v. California Coastal Commission, 483 U.S.

825 (1987), a permit condition is impermissible if “[t]he

purpose . . . [is] the obtaining of an easement to serve

some valid governmental purpose, but without

payment of compensation.” Nollan, 483 U.S. at 837;

see also Dolan v. City of Tigard, 512 U.S. 374, 384

(1994) (permit condition impermissible where, had

easement been directly requested, “a taking would

have occurred”). And in Koontz v. St. Johns River

Water Management District, 570 U.S. 595 (2013), this

Court made clear that the Nollan-Dolan rule applies

not only when governments seek to obtain an

easement through a permit condition, but also when

they seek to use a permit condition to obtain a

monetary exaction in lieu of an easement. See id. at

612 (expressing concern that “a permitting authority

wishing to exact an easement could simply give the

owner a choice of either surrendering an easement or

making a payment equal to the easement’s value”); id.

at 613 (“this case bears resemblance to our cases

holding that the government must pay just

compensation when it takes a lien”).

This Court has never suggested—let alone held—

that the Takings Clause extends as broadly as

Petitioner suggests, and this Court should reject the

invitation to so expand it now. Doing so would be at

5

odds with both this Court’s precedents and the text

and history of the Clause.

ARGUMENT

I. As Originally Understood, the Takings

Clause Applied Only to the Direct

Appropriation of Property.

1. The Takings Clause of the Fifth Amendment

states that “private property [shall not] be taken for

public use, without just compensation.” U.S. Const.

amend. V. By its terms, the Clause’s scope is quite

narrow: it applies only when the government takes

private property. And rather than preventing such

takings, it only requires the government to provide

just compensation when those takings occur. See First

English Evangelical Lutheran Church of Glendale v.

Cnty. of Los Angeles, 482 U.S. 304, 314 (1987). While

the Constitution does not define the term, a “taking”

most naturally means an expropriation of property,

such as when the government exercises its eminent

domain power to physically acquire private property to

build a road, military base, or park. See Douglas T.

Kendall & Charles P. Lord, The Takings Project: A

Critical Analysis and Assessment of the Progress So

Far, 25 B.C. Envt’l Aff. L. Rev. 509, 515 (1998).

The Clause’s focus on actual appropriations of

private property makes sense in light of the historical

circumstances that preceded the adoption of the

Clause.

Prior to the ratification of the Fifth

Amendment, “there was no [federal] rule requiring

compensation when the government physically took

property or regulated it. The decision to provide

compensation was left entirely to the political process.”

Treanor, supra, at 783; see id. (“[T]he framers did not

favor absolute protection of property rights.”). Thus,

during the Revolutionary War, the military regularly

6

seized private goods without providing compensation.

See 1 William Blackstone, Commentaries with Notes of

Reference, to the Constitution and Laws, of the Federal

Government of the United States; and of the

Commonwealth of Virginia 305-06 (St. George Tucker

ed., 1803) (statement by Tucker regarding the

“arbitrary and oppressive mode of obtaining supplies

for public uses . . . as was too frequently practised

during the revolutionary war, without any

compensation whatsoever”); Respublica v. Sparhawk,

1 U.S. (1 Dall.) 357, 363 (Pa. 1788) (upholding

uncompensated seizure of provisions from private

citizens during the war).

Indeed, only two foundational documents from the

colonial era included even limited recognition of a

right to compensation for the taking of private

property,

and

both

covered

only

physical

appropriations of property. Treanor, supra, at 785.

First, the Massachusetts Body of Liberties, adopted in

1641, imposed a compensation requirement that

applied only to the seizure of personal property: “No

mans Cattel or goods of what kinde soever shall be

pressed or taken for any publique use or service,

unlesse it be by warrant grounded upon some act of the

generall Court, nor without such reasonable prices and

hire as the ordinarie rates of the Countrie do afford.”

Mass. Body of Liberties § 8 (1641), reprinted in Sources

of Our Liberties: Documentary Origins of Individual

Liberties in the United States Constitution and Bill of

Rights 149 (Richard L. Perry & John C. Cooper eds.,

1959) [hereinafter Sources of Our Liberties]; see

Treanor, supra, at 785 n.12 (“This provision of the

Body of Liberties appears to have been modelled on

Article 28 of Magna Carta, which barred crown

officials from ‘tak[ing] anyone’s grain or other chattels,

without immediately paying for them in money.’”

7

(quoting Magna Carta art. 28 (1215), reprinted in

Sources of Our Liberties 16)).

Likewise, the 1669 Fundamental Constitutions of

Carolina, which were drafted by John Locke and never

fully

implemented,

would

have

mandated

compensation only for the direct seizure of real

property. Treanor, supra, at 785-86. Locke sought to

authorize public construction of buildings and

highways, so long as “[t]he damage the owner of such

lands (on or through which any such public things

shall be made) shall receive thereby shall be valued,

and satisfaction made by such ways as the grand

council shall appoint.”

Id. at 786 (quoting

Fundamental Constitutions of Carolina art. 44 (1669),

reprinted in 1 Bernard Schwartz, The Bill of Rights: A

Documentary History 115 (1971)).

2. Because the Founders were concerned about the

physical appropriation of property, regulations

affecting the value of property were viewed as

unproblematic. For example, colonial governments

commonly regulated land use and business operations,

see id. at 789 (collecting examples), yet no colonial

charter required compensation for property owners

affected by those regulations—not even when the

regulations affected a property’s value.

And,

significantly, colonial property regulations frequently

caused landowners to incur expenses related to the

community’s welfare and interests. Id. at 788-89; see

John F. Hart, Land Use Law in the Early Republic and

the Original Meaning of the Takings Clause, 94 Nw. U.

L. Rev. 1099, 1103 (2000) (“Legislation contemporary

with the Takings Clause provides especially

persuasive evidence that for those who framed and

ratified it the words ‘property . . . taken for public use’

meant appropriation and not regulation.”).

8

In fact, James Madison successfully introduced a

law in the Virginia Assembly requiring landowners to

pay the costs necessary to address the local impact of

new construction and to drain unimproved tidal lands.

A Bill Concerning Mill Dams and Other Obstructions

of Water Courses, 18 June 1779, in 2 The Papers of

Thomas Jefferson, 1777 – 18 June 1779, at 464-67

(Julian P. Boyd ed., 1950).

Under Madison’s

legislation, mill developers seeking to dam a river had

to prove that their actions would not harm the

community by, for example, obstructing the flow of fish

or river navigation. A committee of twelve local

freeholders would review the proposed building site “to

examine the lands above and below, of the property of

others, which may probably be overflowed, and say to

what damage it will be of to the several proprietors.”

Id. The committee would also “enquire whether and

in what degree fish of passage and ordinary navigation

will be obstructed, whether by any and by what means

such obstruction may be prevented; and whether, in

their opinion, the health of the neighbours will be

annoyed by the stagnation of the waters.”

Id.

Permission to build could be subject to “such

conditions for preventing the obstruction, if any there

will be, of fish of passage, and ordinary navigation as

to them shall seem right.” Id. Even after permission

was granted, the mill owner still had to pay for any

upstream

and

downstream

damages

likely

attributable to the construction before he began to

build, and the builder could also be held liable for other

damages that were not “actually foreseen and

estimated” by the committee. Id.

Those laws were consistent with a long tradition of

land use regulation. Local laws required landowners

to drain swampland, build gristmills, open and operate

mines, and develop idle land, often under penalty of

9

forfeiture of the underlying parcel. Hart, Land Use

Law, supra, at 1117-29. For example, the 1789 law

that incorporated Hartford, Connecticut stated that a

town committee had to approve the plans of “any

Dwelling House, Shop, or Building” to ensure the

building “shall best correspond with the Line or the

Street” and “be most regularly proportioned to the

Situation of the adjacent Buildings,” and landowners

would be fined if they built a noncompliant building.

Id. at 1110 (citing By-Law of Nov. 4, 1789, reprinted in

By-Laws of the City of Hartford 37-38 (Hudson &

Goodwin 1797)). Similar laws existed in colonial New

York, Georgia, Virginia, South Carolina, North

Carolina, and Pennsylvania. Id. at 1109-15.

3. After the American Revolution, “[n]one of the

state constitutions adopted in 1776 had just

compensation requirements” for physical takings or

for regulations that affected property rights. Treanor,

supra, at 789. As state constitutions later began to

provide compensation for the taking of property, those

protections covered only physical appropriations of

property. See id. at 791. The Vermont Constitution,

for example, provided that “whenever any particular

man’s property is taken for the use of the public, the

owner ought to receive an equivalent in money.” Vt.

Const. of 1777, ch. I, art. II, reprinted in 6 The Federal

and State Constitutions, Colonial Charters, and Other

Organic Laws of the States, Territories, and Colonies

Now or Heretofore Forming the United States of

America 3740 (Francis N. Thorpe ed., 1909)

[hereinafter The Federal and State Constitutions].

Similarly, the Massachusetts Constitution of 1780

stated that “whenever the public exigencies require

that the property of any individual should be

appropriated to public uses, he shall receive a

reasonable compensation therefor.” Mass. Const. of

10

1780, part I, art. X, reprinted in 3 The Federal and

State Constitutions, supra, at 1891. Further, the

Northwest Ordinance of 1787 stated that “should the

public exigencies make it necessary, for the common

preservation, to take any person’s property, or to

demand his particular services, full compensation

shall be made for the same.” Northwest Ordinance of

1787, art. 2, reprinted in Sources of Our Liberties,

supra, at 395. Significantly, “[i]n each case, a plain

language reading of the text indicates that it protected

property only against physical confiscation, and the

early judicial decisions construed them in this way.”

Treanor, supra, at 791.

Ultimately, when the Framers adopted the federal

Takings Clause, they also protected against the

physical appropriation of property. As one scholar has

explained it, “the right against physical seizure

received special protection . . . because of the framers’

concern with failures in the political process.” Id. at

784. For various reasons, the Framers feared that the

ordinary political process would not adequately protect

physical possession of property. Id. at 782 (“the

limited scope of the [T]akings [C]lause[] reflected the

fact that, for a variety of reasons, members of the

framing generation believed that physical possession

of property was particularly vulnerable to process

failure”); see, e.g., id. at 829-30 (explaining how

Vermont’s Takings Clause and other state analogues

were “designed to provide security against the type of

process failure to which majoritarian decisionmaking

processes were peculiarly prone”—namely “real

property interests”).

For example, the statements of James Madison,

the drafter of the Clause and its chief proponent,

“uniformly indicate that the clause only mandated

compensation when the government physically took

11

property.” Treanor, supra, at 791; see Lucas v. S.C.

Coastal Council, 505 U.S. 1003, 1057 n.23 (1992)

(Blackmun, J., dissenting) (“James Madison, author of

the Takings Clause, apparently intended it to apply

only to direct, physical takings of property by the

Federal Government.”); accord Bernard Schwartz,

Takings Clause—“Poor Relation” No More?, 47 Okla.

L. Rev. 417, 420 (1994). Madison believed that

physical property needed special protection in the form

of a compensation requirement “because its owners

were

peculiarly

vulnerable

to

majoritarian

decisionmaking.” Treanor, supra, at 847. Madison

wrote, for instance, of the need for a means to protect

physical property ownership separate from the

political process because, “[a]s the holders of property

have at stake all the other rights common to those

without property, they may be the more restrained

from infringing, as well as the less tempted to infringe

the rights of the latter.” James Madison, Note to His

Speech on the Right to Suffrage (1821), in 3 The

Records of the Federal Convention of 1787, at 450-51

(Max Farrand ed., 1911). He described “[t]he necessity

of . . . guarding the rights of property,” a matter that

he observed “was for obvious reasons unattended to in

the commencement of the Revolution.”

James

Madison, Observations on the “Draught of a

Constitution for Virginia” (ca. Oct. 15, 1788), in 11 The

Papers of James Madison 287 (Robert A. Rutland et al.

eds., 1977). Thus, Madison was concerned that the

political process would be insufficient to preserve

physical property rights, and he drafted the Takings

Clause to protect against political-process failures.

See Treanor, supra, at 854.

The drafting history of the Takings Clause

confirms its limited scope. As originally drafted, the

Clause read, “No person shall be . . . obliged to

12

relinquish his property, where it may be necessary for

public use, without a just compensation.” Lucas, 505

U.S. at 1028 n.15 (quoting Speech Proposing Bill of

Rights (June 8, 1789), in 12 J. Madison, The Papers of

James Madison 201 (C. Hobson et al. eds., 1979)).

Because no one besides Madison advocated for the

inclusion of a Takings Clause in the Bill of Rights, and

there is no record of anyone advocating to expand the

scope of Madison’s original draft, there is no reason to

think the final draft was meant to be more robust than

the original. See Treanor, supra, at 834 (“Aside from

Madison, there was remarkably little desire for any

kind of substantive protection of property rights

against the national government.” (footnote omitted)).

Thus, although no legislative history exists that

explains why a select committee, of which Madison

was a member, altered the wording before the

Amendment’s adoption, “[i]t is . . . most unlikely that

the change in language was intended to change the

meaning of Madison’s draft Takings Clause.”

Schwartz, supra, at 420.

As one scholar has argued, “[t]he substitution of

‘taken’ for Madison’s original ‘relinquish’ did not mean

that something less than acquisition of property would

bring the clause into play,” Schwartz, supra, at 420,

because Samuel Johnson’s Dictionary—a prominent

Founding-era dictionary—defined “to take” in 1789 as,

among other things, “[t]o seize what is not given”; “[t]o

snatch; to seize”; “[t]o get; to have; to appropriate”;

“[t]o get; to procure”; and “[t]o fasten on; to seize,” id.

at 420-21 (quoting 1-2 Samuel Johnson, A Dictionary

of the English Language (1755-56)).

4. Accounts from shortly after the adoption of the

Takings Clause confirm that it was understood to

apply only to physical appropriations. “[A]lthough

‘contemporaneous commentary upon the meaning of

13

the compensation clause is in very short supply,’”

Lucas, 505 U.S. at 1057 n.23 (Blackmun, J.,

dissenting) (quoting Joseph L. Sax, Takings and the

Police Power, 74 Yale L.J. 36, 58 (1964)), an 1803

treatise recognized that the Clause “was probably

intended to restrain the arbitrary and oppressive

mode of obtaining supplies for the army, and other

public uses, by impressment, as was too frequently

practised during the revolutionary war.” 1 William

Blackstone, Commentaries, supra, at 305-06. Another

treatise writer observed in 1857 that “[i]t seems to be

settled that, to entitle the owner to protection under

[the Takings] [C]lause, the property must be actually

taken in the physical sense of the word.” Theodore

Sedgwick, A Treatise on the Rules Which Govern the

Interpretation and Application of Statutory and

Constitutional Law 519 (1857).

Moreover, the few Supreme Court decisions prior

to 1870 interpreting the Takings Clause held that

“acts done in the proper exercise of governmental

powers, and not directly encroaching upon private

property, though their consequences may impair its

use, are universally held not to be a taking within the

meaning of the constitutional provision.” Northern

Transp. Co. v. City of Chicago, 99 U.S. 635, 642 (1878)

(emphasis added). In fact, until the last few decades

of the nineteenth century, the Supreme Court

steadfastly refused to extend the Clause beyond actual

appropriations. In 1870, the Court affirmed that the

Takings Clause “has always been understood as

referring only to a direct appropriation, and not to

consequential injuries resulting from the exercise of

lawful power.” Legal Tender Cases, 79 U.S. (12 Wall.)

457, 551 (1870); see Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Regional Plan. Agency, 535 U.S. 302, 321 (2002)

(“The text of the Fifth Amendment itself provides a

14

basis for drawing a distinction between physical

takings and regulatory takings. Its plain language

requires the payment of compensation whenever the

government acquires private property for a public

purpose, whether the acquisition is the result of a

condemnation proceeding or a physical appropriation.

But the Constitution contains no comparable reference

to regulations . . . .”).

In subsequent years, the Court somewhat

expanded the scope of the Clause. But, as the next

Section discusses, even in those cases it applied the

Clause only to governmental actions that were the

functional equivalent of physical appropriations of

property and those that were designed to evade the

Clause’s restrictions on such appropriations.

II. This Court’s Cases Have Applied the

Takings Clause to Physical Appropriations

of Property, the Functional Equivalent of

Such Appropriations, and Governmental

Efforts to Evade the Clause’s Protections.

The notion that the Takings Clause may apply to

government actions beyond the physical expropriation

of property emerged gradually over the next century

as the Court considered cases in which government

action very closely resembled expropriations of

property. The first of these cases, Pumpelly v. Green

Bay & Mississippi Canal Co., 80 U.S. 166 (1871),

involved a state-authorized dam that flooded the

petitioner’s property. Id. at 167. The Court noted that

“[i]t would be a very curious and unsatisfactory result,

if . . . it shall be held that if the government refrains

from the absolute conversion of real property to the

uses of the public it . . . can inflict irreparable and

permanent injury to any extent,” or “in effect, subject

it to total destruction without making any

compensation, because, in the narrowest sense of that

15

word, it is not taken for the public use.” Id. at 177-78.

To avoid such a result, the Court held that, “where real

estate is actually invaded by superinduced additions

of water, earth, sand, or other material, . . . so as to

effectually destroy or impair its usefulness, it is a

taking, within the meaning of the Constitution.” Id. at

181 (emphases added).

The Court made clear,

however, that “[b]eyond this we do not go, and this case

calls us to go no further.” Id.

Nearly fifty years later, in Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393 (1922), the Court again

narrowly expanded the reach of the Takings Clause.

This time the Clause was expanded to encompass

regulations that the Court viewed as particularly

oppressive. Yet even in expanding the scope of the

Clause to reach government regulations, the Court

was once again careful to limit its reach to instances

in which the effect of a regulation was tantamount to

the direct appropriation of property contemplated by

the text of the Fifth Amendment. See Lingle, 544 U.S.

at 539 (noting that to bring a successful regulatory

takings claim, a plaintiff must “identify regulatory

actions that are functionally equivalent to the classic

taking in which government directly appropriates

private property or ousts the owner from his domain”).

Mahon involved a challenge to the Kohler Act, a

Pennsylvania law that prevented coal companies from

mining coal that formed the support for surface-level

land.

260 U.S. at 416-17.

Pennsylvania law

recognized the right to this support property as a

distinct property interest, and this Court stated that

the Act “purports to abolish what is recognized in

Pennsylvania as an estate in land—a very valuable

estate.” Id. at 414. The Court declared that the

Pennsylvania law had “very nearly the same effect for

constitutional purposes as appropriating or destroying

16

[the estate],” id., and, again relying on this analogy to

an expropriation of property, declared that a

regulation can be considered a taking when it “goes too

far,” id. at 415. In that case, the Court concluded that

“[b]ecause the statute made it commercially

impracticable to mine the coal, and thus had nearly

the same effect as the complete destruction of rights

claimant had reserved from the owners of the surface

land, . . . the statute was invalid as effecting a ‘taking’

without just compensation.” Penn Central Transp. Co.

v. City of New York, 438 U.S. 104, 127-28 (1978)

(emphasis added) (discussing Mahon).

While governmental action becomes a taking if it

completely destroys the value of property,

governmental action does not become a taking simply

because it may reduce to some degree the value of

property.

Indeed, this Court has repeatedly

recognized “that government may execute laws or

programs that adversely affect recognized economic

values.” Id. at 124-25; Mahon, 260 U.S. at 393

(“Government hardly could go on if to some extent

values incident to property could not be diminished

without paying for every such change in the general

law.’”). And it is for this reason that “the authority of

state and local governments to engage in land use

planning has been sustained” by this Court “against

constitutional challenge as long ago as” 1926. Dolan,

512 U.S. at 384 (citing Village of Euclid v. Ambler

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

To be sure, this Court has held that the Takings

Clause imposes some limitations in the permitting

context, but in doing so, it has consistently emphasized

the Clause’s focus on the direct appropriation of

property. In Nollan v. California Coastal Commission,

483 U.S. 825 (1987), the government refused to let a

landowner rebuild a beach house on his property

17

unless he agreed to grant an easement allowing the

public to pass through the property. Id. at 842. As the

Court explained, “[h]ad California simply required the

Nollans to make an easement across their beachfront

available to the public on a permanent basis . . . we

have no doubt there would have been a taking.” Id. at

831; see id. at 832 (a “permanent physical occupation”

amounting to an unconstitutional taking occurs

“where individuals are given a permanent and

continuous right to pass to and fro, so that the real

property may continuously be traversed, even though

no particular individual is permitted to station himself

permanently upon the premises”).

Because taking the easement without paying just

compensation would have run afoul of the Clause, the

Court concluded that “requiring it to be conveyed as a

condition for issuing a land-use permit” also ran afoul

of the Clause unless there was a sufficient nexus

between the condition and a legitimate exercise of the

state’s police power. Id. at 834. In the absence of such

a nexus, “[t]he purpose . . . becomes, quite simply, the

obtaining of an easement to serve some valid

governmental purpose, but without payment of

compensation.” Id. at 837. Or, as this Court put it

more colorfully, “the building restriction is not a valid

regulation of land use but ‘an out-and-out plan of

extortion.’” Id.

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

Court again emphasized that the permitting process

cannot be used to evade the requirements of the

Takings Clause, and it resolved a question left open by

Nollan—that is, “the required degree of connection

between the exactions imposed by the [government]

and the projected impacts of the proposed

development.” Id. at 377. Dolan sought to expand her

business’s parking lot, and the City conditioned

18

approval of her permit on her agreement to dedicate

two portions of her property to uses specified by the

City. Id. at 380. The Court held that the City had not

shown a strong enough connection between the

proposed conditions and the City’s goals to justify the

serious intrusion on Dolan’s right to exclude the public

from her property. Id. at 395-96.

As in Nollan, the Court underscored that the

easement requirement was a taking due to the

infringement on her property rights: “Without

question, had the city simply required petitioner to

dedicate a strip of land along Fanno Creek for public

use, . . . a taking would have occurred.” Id. at 384; see

id. (“access would deprive petitioner of the right to

exclude others, one of the most essential sticks in the

bundle of rights that are commonly characterized as

property” (internal citations omitted)). And as in

Nollan, the Court emphasized that “the government

may not require a person to give up a constitutional

right—here the right to receive just compensation

when property is taken for a public use—in exchange

for a discretionary benefit conferred by the

government where the benefit sought has little or no

relationship to the property.” Id. at 385.

Most recently, in Koontz v. St. Johns River Water

Management District, 570 U.S. 595 (2013), this Court

again made clear that Nollan and Dolan “provide

important protection against the misuse of the power

of land-use regulation.” Id. at 599; see id. at 604

(“Nollan and Dolan . . . protect[] the Fifth Amendment

right to just compensation for property the

government takes when owners apply for land-use

permits.”). There, Coy Koontz sought permits to

develop the 3.7-acre northern section of his property,

and the government agreed to approve the

construction only if he agreed to one of two

19

concessions: he could either reduce the size of his

planned development and deed the remainder of his

property to the District as a conservation easement, or

he could proceed with the development as proposed but

pay to fund offsite mitigation work on District-owned

land several miles away. Id. at 601-02. The Florida

Supreme Court held that Nollan and Dolan did not

apply because the government was not demanding an

easement, but rather that Koontz spend money to

improve his land. Id. at 611-12.

This Court reversed, recognizing that “if we

accepted this argument it would be very easy for landuse permitting officials to evade the limitations of

Nollan and Dolan.” Id. at 612. As this Court

explained, “[b]ecause the government need only

provide a permit applicant with one alternative that

satisfies the nexus and rough proportionality

standards, a permitting authority wishing to exact an

easement could simply give the owner a choice of

either surrendering an easement or making a payment

equal to the easement’s value.” Id. The Court further

explained that because the “monetary obligation

burdened petitioner’s ownership of a specific parcel of

land,” “this case bears resemblance to our cases

holding that the government must pay just

compensation when it takes a lien—a right to receive

money that is secured by a particular piece of

property.” Id. at 613. The Court thus emphasized that

“[t]he fulcrum this case turns on is the direct link

between the government’s demand and a specific

parcel of real property.” Id. at 614; see also id. at 617

(“respondent has maintained throughout this

litigation that it considered petitioner’s money to be a

substitute for his deeding to the public a conservation

easement on a larger parcel of undeveloped land”).

20

“Because of that direct link,” this Court added,

“this case implicates the central concern of Nollan and

Dolan: the risk that the government may use its

substantial power and discretion in land-use

permitting to pursue governmental ends that lack an

essential nexus and rough proportionality to the

effects of the proposed new use of the specific property

at issue, thereby diminishing without justification the

value of the property.” Id. at 614. Conversely, where

a fine or fee does not raise that central concern, it

raises no Takings Clause issue under this Court’s

precedents. As this Court emphasized in Koontz,

“[t]his case . . . does not affect the ability of

governments to impose property taxes, user fees, and

similar laws and regulations that may impose

financial burdens on property owners.” Id. at 615.

In sum, this Court’s Takings Clause cases make

clear that the Clause is implicated by the direct

physical appropriation of property, the functional

equivalent of such appropriations, and other

governmental actions designed to evade the Clause’s

limits. Fees of the type at issue here do not raise those

concerns, as the next Section discusses.

III. The Traffic Impact Mitigation Program Is

Not an Unconstitutional Taking.

The Traffic Impact Mitigation fee at issue here does

not raise the “central concern” of Nollan and Dolan

and thus does not implicate the Takings Clause.

In 2004, recognizing that greater development of

land could have adverse impacts on the roads and

traffic conditions in the County, the County adopted a

new general plan that, among other things, required

individuals seeking to build new developments to help

pay for the road improvements that would be

necessary to address the traffic impacts from such

21

development. Two years later, the County adopted the

Program at issue here in order to help raise funds to

construct new roads and widen existing roads. As part

of that Program, the County provided that payment of

the Traffic Imposition Fee would be imposed as a

condition to the approval of a building permit. The

TIM fee is thus a blanket fee that applies to all

builders in the County. While the amount of the fee

can vary based on the type of property or the square

footage, it is not individually set for any particular

parcel of land, and it does not identify particular land

that must be given to the government or a particular

pool of funds from which the fee must come.

Given that, this fee raises none of the concerns that

motivated this Court’s decisions in Nollan, Dolan, and

Koontz. In Nollan and Dolan, this Court was plainly

concerned that the government was seeking to

accomplish through a condition what it knew it could

not accomplish directly: taking an easement without

providing just compensation. Nollan, 483 U.S. at 831;

Dolan, 512 U.S. at 384; see also Garneau v. City of

Seattle, 147 F.3d 802, 811 (9th Cir. 1998) (describing

“the Court’s concern [in Dolan] that where the

government demands individual parcels of land

through adjudicative, rather than legislative, decision

making, there is a heightened risk of extortionate

behavior by the government”). Similarly, in Koontz,

this Court was concerned that the monetary exaction

was in lieu of an easement—as the Court said, “this

case bears resemblance to our cases holding that the

government must pay just compensation when it takes

a lien.” Koontz, 570 U.S. at 613.

By contrast, the fee here is not in lieu of an

easement, but is simply a blanket fee designed to raise

funds for necessary road improvements. It is thus no

more a taking than any monetary payment that could

22

be linked to land use or ownership. And, as this Court

has repeatedly recognized, such fees raise no concerns

under the Takings Clause. See id. at 615 (“[i]t is

beyond dispute that [t]axes and user fees . . . are not

‘takings’” (internal quotations omitted)); see also

Dolan, 512 U.S. at 385 (“essentially legislative

determinations classifying entire areas of the city”

were permissible, as were conditions that were “simply

a limitation on the use petitioner might make of her

own parcel” as opposed to “a requirement that she deed

portions of the property to the city”).

Notably, Petitioner is not without recourse if he

wishes to challenge the Program. Petitioner is already

challenging the Program under a California law

passed to address government overreach in this

context. Pet’r Br. 5. And precisely because this is a

general fee applicable to anyone who wishes to develop

land in the County, Petitioner can always seek change

through the political process. As the court below

noted, “generally applicable legislation is subject to

the ordinary restraints of the democratic political

process. A city council that charged extortionate fees

for all property development, unjustifiable by

mitigation needs, would likely face widespread and

well-financed opposition at the next election.” Pet.

App. A-14 (citing San Remo Hotel L.P. v. City & Cnty.

of San Francisco, 27 Cal. 4th 643, 671 (Cal. 2002)); cf.

Village of Euclid, 272 U.S. at 393 (“We have nothing to

do with the question of the wisdom or good policy of

municipal ordinances. If they are not satisfying to a

majority of the citizens, their recourse is to the ballot—

not the courts.” (quoting State ex rel. Civello v. City of

New Orleans, 154 La. 271, 283 (1923)) cf. Treanor,

supra, at 847 (discussing Madison’s belief that owners

of physical property were “peculiarly vulnerable to

majoritarian decisionmaking”).

23

In short, Petitioner may not like the County’s

decision to charge this fee, but that does not make it

unconstitutional.

Petitioner’s argument that the

Program violates the Takings Clause is at odds with

both this Court’s precedent and the text and history of

the Clause. This Court should reject it.

CONCLUSION

For the foregoing reasons, the judgment of the

California Court of Appeal should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

NINA HENRY

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

December 20, 2023

* Counsel of Record