Amicus Curiae Brief — George Sheetz, Petitioner v. County of El Dorado, California
Supreme Court briefDec 20, 2023
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No. 22-1074
In the Supreme Court of the United States
GEORGE SHEETZ, PETITIONER
v.
COUNTY OF EL DORADO, CALIFORNIA
ON WRIT OF CERTIORARI
TO THE COURT OF APPEAL OF CALIFORNIA,
THIRD APPELLATE DISTRICT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING RESPONDENT
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
TODD KIM
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor
General
WILLIAM B. LAZARUS
DANIEL HALAINEN
JACOB D. ECKER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Pursuant to California law, the County of El Dorado’s Board of Supervisors adopted a generally applicable legislative requirement that applicants for certain
types of development permits pay a traffic impact mitigation fee as set forth in a non-discretionary schedule
dividing the County into eight zones and calculating
fees based on the type of development. The fee is not
paid in lieu of any dedication of a real-property interest.
The question presented is:
Whether the special application of the unconstitutionalconditions doctrine this Court recognized in Nollan v.
California Coastal Commission, 483 U.S. 825 (1987),
and Dolan v. City of Tigard, 512 U.S. 374 (1994), applies
to the County’s traffic impact mitigation fee.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of Argument ................................................................ 6
Argument:
A generally applicable legislative traffic impact
mitigation fee that is unconnected to any dedication of
real property is not subject to the parcel-specific
“nexus” and “rough proportionality” requirements
this court adopted in Nollan and Dolan:
A. Nollan, Dolan, and Koontz apply a special rule
where the government obtains a real-property
interest, or its monetary equivalent, as a condition
of a land permit .............................................................. 10
B. A legislative traffic impact mitigation fee that is
calculated under a non-discretionary schedule and
unrelated to a dedication requirement is not
covered by Nollan, Dolan, and Koontz:
1. The fee at issue here does not implicate the
unconstitutional-conditions doctrine ..................... 16
2. The fee at issue here does not implicate the
core concerns underlying Nollan, Dolan, and
Koontz ...................................................................... 24
3. Extending Nollan, Dolan, and Koontz to this
context would have problematic consequences .... 27
C. Federal and state law already provide sufficient
protection against undue interference with
property interests .......................................................... 32
Conclusion ................................................................................... 34
(III)
IV
TABLE OF AUTHORITIES
Cases:
Page
Armstrong v. United States, 364 U.S. 40 (1960) ................. 21
Ballinger v. City of Oakland,
24 F.4th 1287 (9th Cir.), cert. denied,
142 S. Ct. 2777 (2022) .................................................. 22, 23
B.A.M. Dev., L.L.C. v. Salt Lake Cnty.,
282 P.3d 41 (Utah 2012) ..................................................... 30
Bauman v. Ross, 167 U.S. 548 (1897) .................................. 18
Bi-Metallic Inv. Co. v. State Bd. of Equalization,
239 U.S. 441 (1915) ............................................................. 30
Brown v. Legal Found., 538 U.S. 216 (2003) ....................... 21
Camara v. Municipal Ct., 387 U.S. 523 (1967) ................... 31
Cedar Point Nursery v. Hassid,
141 S. Ct. 2063 (2021) .............................. 7, 10, 12, 14, 27, 32
Chicago, Burlington & Quincy R.R. v. Chicago,
166 U.S. 226 (1897) ............................................................. 10
City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U.S. 687 (1999) .................................................... 13
County of Mobile v. Kimball, 102 U.S. 691 (1881) ....... 11, 17
Dolan v. City of Tigard,
512 U.S. 374 (1994) ............... 5, 6, 8, 12-16, 24, 26, 28, 31-33
Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) ....... 20, 21
F.P. Development, LLC v. Charter Township of
Canton, 16 F.4th 198 (6th Cir. 2021)................................. 30
Fallbrook Irrigation Dist. v. Bradley,
164 U.S. 112 (1896) ............................................................. 18
French v. Barber Asphalt Paving Co.,
181 U.S. 324 (1901) ..................................................11, 17, 18
Garrick Dev. Co. v. Hayward Unified Sch. Dist.,
3 Cal. App. 4th 320 (1992) .................................................... 4
Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) ....... 31
V
Cases—Continued:
Page
Home Builders Ass’n of Cent. Arizona v.
City of Scottsdale, 930 P.2d 993 (Ariz.),
cert. denied, 521 U.S. 1120 (1997) ..................................... 31
Houck v. Little River Drainage Dist.,
239 U.S. 254 (1915) ............................................11, 18, 23, 29
Kansas City S. Ry. Co. v. Road Imp. Dist.
No. 3 of Sevier Cnty., 266 U.S. 379 (1924) .................. 18, 19
Keystone Bituminous Coal Ass’n v. DeBenedictis,
480 U.S. 470 (1987) ............................................................. 29
Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595 (2013) .... 2, 5-8, 11, 13-17, 19, 22-24, 26, 27, 32
Krupp v. Breckenridge Sanitation Dist.,
19 P.3d 687 (Colo. 2001) ..................................................... 31
Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005) .................................................. 10-13, 25
Loretto v. Teleprompter Manhattan CATV Corp.,
468 U.S. 419 (1982) ............................................................. 14
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) ..................................................... 11, 32
McCarthy v. City of Cleveland,
626 F.3d 280 (6th Cir. 2010) ............................................... 22
Miller & Lux v. Sacramento & San Joaquin
Drainage Dist., 256 U.S. 129 (1921) ................................. 18
Murr v. Wisconsin, 582 U.S. 383 (2017) ........................ 11, 32
Myles Salt Co. v. Board of Comm’rs of the Iberia,
239 U.S. 478 (1916) ............................................................. 18
Nollan v. California Coastal Comm’n,
483 U.S. 824 (1987) .................................... 5, 6, 12-16, 24, 26
Norwood v. Baker, 172 U.S. 269 (1898) ............................... 21
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ........... 12, 25
Penn Central Transp. Co. v. New York City,
438 U.S. 104 (1978) ......................................................... 7, 12
Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) ...... 12, 25
VI
Cases—Continued:
Page
Phillip Wagner, Inc. v. Leser, 239 U.S. 207 (1915) ............ 21
Phillips v. Washington Legal Found.,
524 U.S. 156 (1998) ............................................................. 21
Roberts v. Richland Irr. Dist., 289 U.S. 71 (1933).............. 18
75 Acres, LLC v. Miami-Dade Cnty.,
338 F.3d 1288 (11th Cir. 2003) ........................................... 31
Sioux City Bridge Co. v. Dakota Cnty.,
260 U.S. 441 (1923) ............................................................. 33
Spencer v. Merchant, 125 U.S. 345 (1888) ........................... 18
Stop the Beach Renourishment, Inc. v.
Florida Dep’t of Envtl. Prot., 560 U.S. 702 (2010) .......... 26
Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Regional Planning Agency,
535 U.S. 302 (2002) ..................................................10, 22, 29
Tanimura & Antle Fresh Foods, Inc. v. Salinas
Union High Sch. Dist., 34 Cal. App. 5th 775 (2019) ......... 4
Tonawanda v. Lyon, 181 U.S. 389 (1901) ...................... 18, 20
Tyler v. Hennepin Cnty., 598 U.S. 631 (2023) .................... 11
United States v. Sperry Corp.,
493 U.S. 52 (1989) ..............................................11, 19, 28, 31
Vance v. Bradley, 440 U.S. 93 (1979) ................................... 31
Village of Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926) ............................................................. 31
Village of Willowbrook v. Olech,
528 U.S. 562 (2000) ............................................................. 33
Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
499 U.S. 155 (1980) ............................................................. 21
Wight v. Davidson, 181 U.S. 371 (1901) .............................. 21
Constitution and statutes:
U.S. Const.:
Amend. IV ........................................................................ 31
VII
Constitution and statutes—Continued:
Page
Amend. V ...............................................................1, 5, 6, 10
(Takings Clause) .............. 5, 9, 11, 15, 21, 26, 28, 29, 32
Amend. XIV ..................................................................... 10
(Due Process Clause) ............................................. 9, 32
(Equal Protection Clause) ..................................... 9, 32
Mitigation Fee Act,
Cal. Gov’t Code § 66001(a) (2022):
§ 66001(a)(3) ..................................................................... 33
§ 66001(a)(4) ..................................................................... 33
§ 66001(g) ......................................................................... 33
16 U.S.C. 797(e)...................................................................... 1
Miscellaneous:
Andrew T. Carswell ed., The Encyclopedia of Housing
(2d ed. 2012) ..................................................................2, 3, 19
2 John F. Dillon, Commentaries on the Law of
Municipal Corporations (4th ed. rev. and enlarged) ... 17
Julian C. Juergensmeyer et al., Land Use
Planning and Development Regulatory
Law (5th ed. 2023) ................................................................ 2
Arthur C. Nelson & Mitch Moody, Paying for
Prosperity: Impact Fees and Job Growth, in
The Brookings Inst. Ctr. on Urban &
Metropolitan Pol’y (June 2003) .......................................... 3
Shelley Ross Saxer, When Local Government
Misbehaves, 2016 Utah L. Rev. 105 (2016) ...................... 33
In the Supreme Court of the United States
No. 22-1074
GEORGE SHEETZ, PETITIONER
v.
COUNTY OF EL DORADO, CALIFORNIA
ON WRIT OF CERTIORARI
TO THE COURT OF APPEAL OF CALIFORNIA,
THIRD APPELLATE DISTRICT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
This case concerns the standard for determining
whether a generally applicable legislative traffic impact
mitigation fee that is not imposed in lieu of the dedication of an interest in real property constitutes a taking
within the meaning of the Fifth Amendment. Although
the United States does not administer traffic impact
mitigation fees comparable to the one at issue here, federal agencies administer programs under federal statutes and regulations that contemplate monetary funding for mitigation activities as a condition of landrelated permits. See, e.g., 16 U.S.C. 797(e). More generally, federal agencies impose taxes, assessments, and
fees that generally are not considered takings. The
United States therefore has a substantial interest in the
(1)
2
standards that apply to claims that permit fees constitute takings.
STATEMENT
1. This case concerns a traffic impact mitigation fee
imposed by respondent El Dorado County. Impact fees
are “charges levied by local governments on new developments in order to pay a proportionate share of the
capital costs of providing public infrastructure to those
developments.” Julian C. Juergensmeyer et al., Land
Use Planning and Development Regulatory Law 356
(5th ed. 2023). Early impact fees were used “to fund
water and sewerage capital construction programs during the 1950s and 1960s.” Andrew T. Carswell ed., The
Encyclopedia of Housing 384 (2d ed. 2012). Over time,
impact fees have come to be used to cover the costs of
“nonutility programs such as roads, parks, and schools
as well as other public services.” Ibid. Impact fees
“now exist in nearly all states.” Juergensmeyer 356; see
Carswell 385.
Impact fees are distinct from fees in lieu of a dedication of real property. In-lieu fees apply when a governmental entity “wishing to exact” an interest in real
property—for example, an easement—“give[s] the
owner a choice of either” dedicating the property interest “or making a payment equal to [its] value.” Koontz
v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 612
(2013). Because in-lieu fees “are predicated on dedication requirements,” “they can only be used where required dedications can be appropriately utilized.”
Juergensmeyer 359.
Impact fees, by contrast, apply where public facilities necessitated by new development do not require interests in land, but nonetheless impose additional costs
on the surrounding community. Impact fees “[a]ct[] like
3
user fees” by “guarantee[ing] benefits to those who pay
for them.” Carswell 385; see, e.g., Arthur C. Nelson &
Mitch Moody, Paying for Prosperity: Impact Fees and
Job Growth, in The Brookings Inst. Ctr. on Urban &
Metro. Pol’y (June 2003).
2. Respondent El Dorado County is a largely rural
county in California. The County has experienced considerable population growth in recent years, requiring
upgrades to public infrastructure, including constructing new roads and widening existing ones. See Resp.
Br. 4-5; Pet. App. A2-A3.
In 2004, the Board of Supervisors (Board) adopted a
new General Plan. Administrative Record (A.R.) 74.
Consistent with longstanding county policy, see, e.g.,
ibid.; A.R. 1518, the General Plan directed that
“[d]eveloper-paid traffic impact fees shall pay for the
portion of road capacity improvements, which would not
be paid for through other County revenue sources, necessary to offset and mitigate the traffic impacts reasonably attributable to new development.” A.R. 1520. To
implement that directive, the General Plan provided
that the Board would “[r]evise and adopt traffic impact
fee program(s) for unincorporated areas of the county
and adopt additional funding mechanisms necessary to
ensure that improvements * * * are fully funded and
capable of being implemented concurrently with new
development.” A.R. 1527.
Before adopting the traffic impact mitigation fee
program, respondent comprehensively studied the issue.
Respondent’s Department of Transportation
“identified road improvements for construction,” A.R.
2341-2342, relying on modelling designed to forecast the
amount of new development that would occur in the
County, its location, and the projected resulting number
of trips on public roads, e.g., A.R. 2341-2342, 3134, 3448-
4
3452; see A.R. 88-93, 131-137 (Board-enacted project
lists). Respondent engaged civil engineering firms and
conducted in-house analyses to estimate project costs,
A.R. 3451, and subtracted other sources of funding, including state and federal project-specific grants, A.R.
3134, 3351.
After considering more than 20 fee scenarios and
making various administrative and policy judgments,
see, e.g., A.R. 3081, 3100, the Board adopted the final
traffic impact mitigation fee program in August 2006,
A.R. 119-138; see Pet. App. A2-A3. The Board divided
the County into eight geographic zones. A.R. 23132314, 3516. The total adjusted cost of each project under the fee program “was then spread to each of the
eight fee zones proportionally, based on the [estimated]
traffic volumes using that specific project from each of
the zones.” A.R. 3521.
As required by California law, the Board found that
“the facts and evidence presented in the reports, analyses, and a public hearing * * * establish that there is
a reasonable relationship between the need for the described public facilities and the impacts of the types of
development described, for which the corresponding fee
is charged”; and also a “reasonable relationship between the fee’s use and the type of development for
which the fee is charged.” A.R. 120; see Cal. Gov’t Code
§ 66001(a) (2022); Tanimura & Antle Fresh Foods, Inc.
v. Salinas Union High Sch. Dist., 34 Cal. App. 5th 775,
791-792 (2019); Garrick Dev. Co. v. Hayward Unified
Sch. Dist., 3 Cal. App. 4th 320, 336 (1992). The Board
directly set the fees for each geographic zone and type
of development, requiring successful “building permit
applicants” after the fee structure’s effective date to
“pay the fee rate(s) listed in” the schedule. A.R. 121;
see A.R. 129-130.
5
In 2012, the Board adopted a revised fee schedule to
reflect, inter alia, development that had already occurred and updated estimates of new development.
A.R. 243-245.
Single-family residential, non-agerestricted fees ranged from $13,330 to $35,740 across
the County’s eight zones. A.R. 246-253. Those fees reflect two components: a Highway 50 component, focusing on the “County’s main transportation corridor,”
A.R. 3517, and a local road component, see A.R. 246-253.
3. a. In December 2013, petitioner purchased property in El Dorado County. Resp. Br. 12. The property
falls within Zone 6, a relatively remote portion of the
County. Pet. App. A3; see Resp. Br. 6; A.R. 234 (map).
It is in a “Rural Region,” i.e., an area with “limited
availability of infrastructure and public services.”
Resp. Br. 12 (quoting A.R. 1461-1462).
In 2016, petitioner applied for a permit “to construct
a 1,854-square-foot single-family manufactured home
on his property.” Pet. App. A3. Petitioner paid, under
protest, the traffic impact mitigation fee of $23,420
mandated for single-family residential developments in
Zone 6, and he received a permit. Ibid.; A.R. 5072-5084.
b. Petitioner then filed this suit challenging the fee.
The state trial court rejected petitioner’s contention
that the fee violated federal and state law, and the court
of appeal affirmed. See Pet. App. A, B.
Most relevant here, petitioner contended that the fee
violated the Takings Clause of the Fifth Amendment to
the U.S. Constitution. Specifically, petitioner asserted
that the fee should be reviewed under the “special application” of the unconstitutional-conditions doctrine this
Court adopted for permit conditions involving easements in Nollan v. California Coastal Commission, 483
U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S.
374 (1994). Pet. App. A4. Petitioner argued that, ap-
6
plying those decisions, the County “failed to make an
individualized determination that an ‘essential nexus’
and ‘rough proportionality’ existed between the traffic
impacts caused by or attributable to [petitioner’s] project and the need for improvements to state and local
roads.” Id. at A4-A5; see Koontz, 570 U.S. at 603.
The court of appeal rejected that contention, explaining that Nollan, Dolan, and Koontz concerned ad hoc,
discretionary permit exactions requiring the dedication
of rights in real property, or fees “in lieu” of such dedications, whereas this case involves “legislatively mandated, generally applicable development fees.” Pet.
App. A10 (citation omitted); see id. at A17. The court
thus held that the traffic impact mitigation fee “is not
subject to the heightened scrutiny of the Nollan/Dolan
test.” Id. at A16. The court also rejected petitioner’s
state-law claims, holding that the fee comports with
California’s Mitigation Fee Act, Cal. Gov’t Code
§ 66001(a) (2022). Pet. App. A23-A27.
c. The California Supreme Court denied review.
Pet. App. C1.
SUMMARY OF ARGUMENT
Respondent’s legislative impact fee, which is imposed pursuant to a non-discretionary schedule and is
unrelated to any government attempt to obtain a dedication of real property, is not subject to the parcelspecific “nexus” and “rough proportionality” requirements of Nollan v. California Coastal Commission, 483
U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S.
374 (1994).
A. The Fifth Amendment prohibits the government
from taking private property without just compensation. U.S. Const. Amend. V. When the government
physically appropriates property or an interest therein,
7
the Court recognizes a per se taking requiring just compensation. By contrast, the Court has long recognized
that taxes and user fees are not takings. Between those
two poles, most “use restrictions” on private property—
including zoning laws and denials of land-use permits—
constitute takings only when they “ ‘go[] too far,’ ” a determination courts make by considering several factors.
Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 20712072 (2021) (citation omitted); see Penn Central
Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).
In Nollan and Dolan, this Court adopted a different
framework where a permitting authority makes an adjudicative, parcel-specific determination to condition
the grant of a land-development permit on the requirement that the applicant dedicate an easement allowing
public access to her property. In that context, the government must establish an “essential nexus” and
“ ‘rough proportionality’ ” between the required property dedication and the effects of the proposed land use.
Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.
595, 605-606 (2013) (citation omitted). In Koontz, the
Court held that a local government could not “evade”
the requirements of Nollan and Dolan by giving the
permit applicant the choice of either dedicating an easement or paying a fee in lieu of such a dedication. Id. at
606.
Three aspects of Nollan, Dolan, and Koontz demonstrate that those decisions are inapplicable here. First,
those decisions involve a “ ‘special application’ ” of the
unconstitutional-conditions doctrine. Koontz, 570 U.S.
at 604 (citation omitted): Because the easement in each
case would have constituted a taking requiring just
compensation outside of the land-permitting process,
the Court adopted a special standard to ensure that the
government’s action did not unduly burden the land-
8
owner’s right to just compensation. Second, each case
involved a discretionary, adjudicative decision; the
Court expressed concern that land-use permit applicants are “especially vulnerable” to “coercion” in that
context. Id. at 605. Third, the Court emphasized that
its decisions did not call into question the government’s
ability to impose land-use regulations or charge property taxes and other fees.
B. The traffic impact mitigation fee at issue here
does not fall within the rationale of Nollan, Dolan, and
Koontz.
First, as Koontz explains, “[a] predicate for any unconstitutional conditions claim is that the government
could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure
that person into doing.” 570 U.S. at 612. Here, however, the government could require petitioner to pay a
fee for the infrastructure necessitated by new development, including his own, outside of the permitting context. The traffic impact mitigation fee is closely analogous to taxes, special assessments for local improvements, and user fees—none of which constitute takings
requiring just compensation.
Second, this case differs from Nollan, Dolan, and
Koontz because it concerns a widely applicable legislative fee that “classif[ies] entire areas of the [County],”
Dolan, 512 U.S. at 384, and is unrelated to any dedication of an interest in real property, rather than the discretionary, adjudicative imposition of an easement (or
fee in lieu of dedication). This case therefore does not
implicate the concerns expressed in Nollan, Dolan, and
Koontz regarding the breadth of the government’s discretion and the potential for coercion.
Third, petitioner’s proposed expansion of Nollan,
Dolan, and Koontz to this context would threaten to
9
blur the line between dedication conditions (or in-lieu
fees) on the one hand, and taxes, user fees, and the like
on the other. Petitioner’s approach would require parcelspecific determinations that legislatures are ill-suited to
make, and that find no foothold in the Takings Clause,
which has never required an individualized determination regarding a use restriction or fee unconnected to
the dedication of a real-property interest. In addition,
by requiring case-specific exercises of discretion, petitioner’s approach would threaten to introduce the very
concerns that Nollan, Dolan, and Koontz were intended
to mitigate. And petitioner’s proposal would invert the
usual burden of proof for challenges to legislative actions.
C. Petitioner’s destabilizing proposal is also unnecessary. Federal and state law already provide adequate
protection from unduly burdensome permit-related
fees. Such fees might constitute takings under the
Court’s regulatory-takings framework under Penn
Central, and could potentially violate other constitutional provisions, including the Equal Protection Clause
or the Due Process Clause. And state law, including
California’s Mitigation Fee Act, provides additional
safeguards.
10
ARGUMENT
A GENERALLY APPLICABLE LEGISLATIVE TRAFFIC IMPACT MITIGATION FEE THAT IS UNCONNECTED TO ANY
DEDICATION OF REAL PROPERTY IS NOT SUBJECT TO
THE PARCEL-SPECIFIC “NEXUS” AND “ROUGH PROPORTIONALITY” REQUIREMENTS THIS COURT ADOPTED IN
NOLLAN AND DOLAN
A. Nollan, Dolan, And Koontz Apply A Special Rule Where
The Government Obtains A Real-Property Interest, Or
Its Monetary Equivalent, As A Condition Of A Land
Permit
1. The Fifth Amendment, which is made applicable
to the States through the Fourteenth Amendment,
states: “[N]or shall private property be taken for public
use, without just compensation.” U.S. Const. Amend.
V; see Chicago, Burlington & Quincy R.R. v. Chicago,
166 U.S. 226, 239 (1897). This Court has recognized that
different standards apply to determine whether different types of government actions constitute takings requiring just compensation.
a. “The paradigmatic taking requiring just compensation is a direct government appropriation or physical
invasion of private property.” Lingle v. Chevron U.S.A.
Inc., 544 U.S. 528, 537 (2005). That “ ‘clearest sort of
taking’ ” occurs when the government “uses its power of
eminent domain to formally condemn property” or
“physically takes possession of property without acquiring title to it.” Cedar Point Nursery v. Hassid, 141
S. Ct. 2063, 2071 (2021) (citation omitted). In that situation, the Constitution imposes a “categorical obligation
to provide the owner with just compensation.” Ibid.
(citing Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321 (2002)).
11
This Court also has held that where a government
action “completely deprive[s] an owner of ‘all economically beneficial use’ of * * * property,” a per se taking
occurs. Lingle, 544 U.S. at 538 (quoting Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1019 (1992)
(brackets omitted)); see Murr v. Wisconsin, 582 U.S.
383, 393 (2017). As the Court explained in Lucas, “from
the landowner’s point of view,” such a “total deprivation” is “the equivalent of a physical appropriation.” 505
U.S. at 1017.
b. At the other end of the spectrum, many government actions do not fall within the Takings Clause even
when they may affect property. Most pertinent here,
“[i]t is beyond dispute that taxes and user fees . . . are
not takings.” Koontz v. St. Johns River Water Mgmt.
Dist., 570 U.S. 595, 615 (2013) (brackets, citation, and
internal quotation marks omitted). As this Court explained last Term, property taxes “are not themselves a
taking, but are a mandated ‘contribution from individuals . . . for the support of the government . . . for which
they receive compensation in the protection which government affords.’ ” Tyler v. Hennepin Cnty., 598 U.S.
631, 637 (2023) (quoting County of Mobile v. Kimball,
102 U.S. 691, 703 (1881)).
The Court also has recognized the closely related
principle that government may “require the property
specially benefited to bear the expense of local improvements” without effecting a taking. French v. Barber Asphalt Paving Co., 181 U.S. 324, 344 (1901) (citation omitted); see, e.g., Houck v. Little River Drainage Dist., 239
U.S. 254, 264-265 (1915). Similarly, “a reasonable user
fee is not a taking if it is imposed for the reimbursement
of the cost of government services.” United States v.
Sperry Corp., 493 U.S. 52, 63 (1989).
12
c. In between those two poles, many “public program[s]” merely “adjust[] the benefits and burdens of
economic life to promote the common good.” Penn
Cent. Transp. Co. v. New York City, 438 U.S. 104, 124
(1978). Government actions within that class constitute
takings only when they “go[] too far.” Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). As the
Court recognized a century ago, “[g]overnment 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.” Id. at 413.
To determine whether a government action constitutes a taking under the Penn Central framework,
courts consider such factors as “[t]he economic impact
of the regulation on the claimant”—“particularly, the
extent to which the regulation has interfered with distinct investment-backed expectations”—and “the character of the government action.” 438 U.S. at 124. The
Court has applied the Penn Central framework in a variety of contexts in which the government “imposes regulations that restrict an owner’s ability to use his own
property,” including “zoning ordinances, orders barring
the mining of gold, * * * regulations prohibiting the
sale of eagle feathers,” Cedar Point Nursery, 141 S. Ct.
at 2071-2072 (citations omitted), and challenges to the
denial of a development permit, Palazzolo v. Rhode Island, 533 U.S. 606, 611-612, 632 (2001). The Penn Central factors thus “have served as the principal guidelines for resolving regulatory takings claims that do not
fall within the physical takings or Lucas [per se] rules.”
Lingle, 544 U.S. at 539.
2. a. This Court has adopted a different framework
in “the special context of land-use exactions.” Lingle,
544 U.S. at 538. In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of
13
Tigard, 512 U.S. 374 (1994), the Court considered “adjudicative land-use exactions,” i.e., a permitting authority’s parcel-specific determination to condition a development permit on the requirement “that a landowner
dedicate an easement allowing public access to her
property.” Lingle, 544 U.S. at 546; see City of Monterey
v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702
(1999).
In Nollan, the landowners submitted a coastal development permit application, which was granted subject
to the condition that they provide the public an easement across a portion of their beachfront property. 483
U.S. at 827-829. In Dolan, the landowner sought a permit to redevelop the site of her store, which was granted
subject to the condition that she dedicate approximately
ten percent of her real property for improvements to a
storm drainage system and a pedestrian/bicycle pathway. 512 U.S. at 379-383. The Court held that such conditions constitute takings where the government does
not make an individualized determination that the required dedication of the property interest has a
“ ‘nexus’ ” (Nollan) and “ ‘rough proportionality’ ” (Dolan) to “the effects of the proposed land use.” Koontz,
570 U.S. at 599. In Koontz, the Court held that a permitting authority could not “evade” the requirements of
Nollan and Dolan by requiring that a permit applicant
either dedicate an easement or, in lieu of such dedication, “agree[] to hire contractors to make improvements
to District-owned land several miles away.” Id. at 601602, 612.
b. Three aspects of Nollan, Dolan, and Koontz are
especially relevant and demonstrate that those decisions are inapplicable here.
i. First, those decisions “ ‘involve a special application’ ” of the unconstitutional-conditions doctrine, Koontz,
14
570 U.S. at 604 (citation omitted), and thus reflect the
“overarching principle” that “the government may not
require a person to give up a constitutional right * * *
in exchange for a discretionary benefit,” Dolan, 512
U.S. at 385 & n.12, nor “burden[] the Constitution’s enumerated rights by coercively withholding benefits from
those who exercise them,” Koontz, 570 U.S. at 606. The
special application of that principle adopted in Nollan,
Dolan, and Koontz “protects the Fifth Amendment
right to just compensation for property the government
takes when owners apply for land-use permits.” Id. at
604.
In both Nollan and Dolan, the Court began its analysis by observing that if the government had demanded
the easements outside of the permitting process, it
would have engaged in a per se taking requiring just
compensation. Dolan, 512 U.S. at 384; Nollan, 483 U.S.
at 831; see Cedar Point Nursery, 141 S. Ct. at 20732074. In both cases, the Court emphasized that the demanded easement interfered with “one of the most essential sticks in the bundle of rights that are commonly
characterized as property”—the right to exclude—and
effectively created a permanent physical occupation.
Nollan, 483 U.S. at 831-832 (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433
(1982)); see Dolan, 512 U.S. at 384, 393; see also Cedar
Point Nursery, 141 S. Ct. at 2072-2073.
Koontz held that the unconstitutional-conditions
doctrine did not cease to apply because the permitting
authority would have allowed the landowner “to spend
money” as an alternative to its request that he relinquish “a more tangible interest in real property.” 570
U.S. at 612. The Court observed that if it accepted that
contention, “it would be very easy for land-use permitting officials to evade the limitations of Nollan and
15
Dolan”—and thus of the Takings Clause—by giving the
landowner a choice between “surrendering an easement” or paying an “ ‘in lieu’ ” fee “equal to the easement’s value.” Ibid. (citation omitted). Thus, as in Nollan and Dolan, the Court in Koontz emphasized the
need to protect the landowner against the imposition of
a condition that would be unconstitutional if imposed
outside of the permitting process.
ii. Second, Nollan, Dolan, and Koontz each arose in
the context of a permitting authority’s adjudicative,
parcel-specific determination to condition the grant of a
permit on a particular easement (or fee in lieu of an
easement). Dolan expressly distinguished “land use
planning” laws the Court had previously upheld—which
involved “essentially legislative determinations classifying entire areas of the city”—from the city’s “adjudicative decision to condition [Dolan’s] application for a
building permit on an individual parcel.” 512 U.S. at
384-385. Koontz explained that in the latter context,
“land-use permit applicants are especially vulnerable to
the type of coercion that the unconstitutional conditions
doctrine prohibits because the government often has
broad discretion to deny a permit that is worth far more
than property it would like to take.” 570 U.S. at 604605; see Nollan, 483 U.S. at 837 & n.5 (expressing concern that if government entities were permitted to “leverag[e]” the permitting process to obtain easements
without paying just compensation, they might adopt
“stringent land-use regulation which the State then
waives to accomplish other purposes”).
iii. Third, in these cases, the Court emphasized the
limited nature of its decision and disclaimed any destabilizing effect on the government’s ability to impose
land-use regulations or charge taxes and other types of
fees.
16
The Court’s decisions in this area consistently recognize that “many proposed land uses threaten to impose
costs on the public that dedications of property can offset,” and that “[i]nsisting that landowners internalize
the negative externalities of their conduct is a hallmark
of responsible land-use policy.” Koontz, 570 U.S. at 605.
The Court thus “ha[s] long sustained [land-use] regulations against constitutional attack.” Ibid.; see Dolan,
512 U.S. at 384; Nollan, 483 U.S. at 834. And although
Koontz applied the Nollan/Dolan framework to certain
in-lieu fees imposed in the permitting process, the
Court emphasized that its decision would “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.” 570 U.S. at 615.
B. A Legislative Traffic Impact Mitigation Fee That Is
Calculated Under A Non-Discretionary Schedule And
Unrelated To A Dedication Requirement Is Not Covered
By Nollan, Dolan, And Koontz
The standard developed in Nollan and Dolan, and
applied in Koontz, is inapplicable where, as here, the
government imposes a legislative, non-discretionary
impact fee on new development without attempting to
obtain an interest in the landowner’s real property.
1. The fee at issue here does not implicate the
unconstitutional-conditions doctrine
Petitioner frames the question presented as
“whether a permit exaction is exempt from the
unconstitutional-conditions doctrine as applied in Nollan and Dolan simply because it is authorized by legislation.” Pet. I; see, e.g., Pet. Br. 25-26. That question—
and much of petitioner’s argument—presumes that the
“special application” of the unconstitutional-conditions
17
doctrine this Court adopted in those cases would apply
here but for the legislative nature of the fee. That is
incorrect. As Koontz recognized—and as petitioner appears to agree, see Pet. Br. 14, 22, 28-29—“[a] predicate
for any unconstitutional conditions claim is that the government could not have constitutionally ordered the
person asserting the claim to do what it attempted to
pressure that person into doing.” 570 U.S. at 612. That
predicate is lacking where the government charges an
impact fee without any request for an interest in real
property. Because the government could charge such a
fee outside of the permitting process without engaging
in a taking, its decision to do so within the permitting
process does not burden landowners’ constitutional
right to just compensation.
a. “It is beyond dispute that taxes and user fees . . .
are not takings.” Koontz, 570 U.S. at 615 (brackets, citation, and internal quotation marks omitted). The fee
at issue here is closely analogous to both types of assessments, and thus could have been imposed outside of
the permitting process without constituting a taking.
i. “[T]axation for a public purpose, however great,
[is not] the taking of private property for public use, in
the sense of the Constitution.” Kimball, 102 U.S. at 703.
The Court has long considered “the authority to require
the property specially benefited to bear the expense of
local improvements” to be a “branch of the taxing
power, or included within it.” French, 181 U.S. at 343344 (quoting 2 John F. Dillon, Commentaries on the
Law of Municipal Corporations § 752 (4th ed. rev. and
enlarged)). Thus, “the legislature, in the exercise of the
right of taxation, has the authority to direct the whole,
or such part as it may prescribe, of the expense of a public improvement, such as the establishing, the widening,
the grading or the repair of a street, to be assessed upon
18
the owners of lands benefited thereby.” Id. at 342 (discussing Bauman v. Ross, 167 U.S. 548 (1897)); see, e.g.,
Tonawanda v. Lyon, 181 U.S. 389 (1901) (similar). In
that context, legislative determinations about how to
apportion fees receive significant deference. “The State
in its discretion may lay such assessments in proportion
to position, frontage, area, market value, or to benefits
estimated by commissioners.” Houck, 239 U.S. at 265;
see Spencer v. Merchant, 125 U.S. 345, 356 (1888).
Similarly, “in the absence of flagrant abuse or purely
arbitrary action a State may establish drainage districts
and tax lands therein for local improvements, and * * *
none of such lands may escape liability solely because
they will not receive direct benefits.” Miller & Lux,
Inc. v. Sacramento & San Joaquin Drainage Dist., 256
U.S. 129, 130 (1921). In this context, the “method of assessing the lands” is a “matter[] of detail in arriving at
the proper and fair amount and proportion of the tax
* * * which is open to the discretion” of the legislature.
Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 176
(1896). Even if the method of assessment is “in some
instance inequitable and unequal, * * * that is far from
rising to the level of a constitutional problem.” Id. at
177; see, e.g., Roberts v. Richland Irrigation Dist., 289
U.S. 71, 75 (1933). Rather, such special assessments are
unconstitutional only if they violate due process because
they are “palpably arbitrary, and therefore a plain
abuse of power.” Kansas City S. Ry. Co. v. Road Improvement Dist. No. 3 of Sevier Cnty., 266 U.S. 379, 386
(1924); see, e.g., Myles Salt Co. v. Board of Comm’rs of
the Iberia, 239 U.S. 478, 482-483 (1916); Houck, 239 U.S.
at 265; Tonawanda, 181 U.S. at 392.
The traffic impact mitigation fee at issue here is
functionally equivalent to these types of special assessments. Respondent designed the fee schedule to re-
19
quire new development to pay for “road capacity improvements” that are “reasonably attributable to new
development.” A.R. 1520. The impact fee charges new
development for the cost of expanding and building
roadways by projecting the number of trips the development will add to those roads. See, e.g., A.R. 1520,
2341-2342, 3134, 3448-3452. Thus, unlike the easements
at issue in Nollan, Dolan, and Koontz, respondent could
constitutionally impose such an assessment outside of
the permitting context so long as it was not “palpably
arbitrary,” Kansas City S. Ry. Co., 266 U.S. at 386.1
ii. The impact fee here is also closely analogous to a
user fee, which respondent likewise could charge outside of the permitting context without engaging in a taking. Impact fees “[a]ct[] like user fees [by] guarantee[ing] benefits to those who pay for them.” Carswell
385. As discussed, respondent imposed the fee on new
development based on a legislative determination that
such development creates the need for, and will benefit
from, the building and widening of new and existing
roads.
As in the case of special assessments, user fees generally do not constitute takings, see Sperry, 493 U.S. at
To be sure, the Court has sometimes “found takings where the
government, by confiscating financial obligations, achieved a result
that could have been obtained by imposing a tax.” Koontz, 570 U.S.
at 615; see id. at 615-616. But this case concerns not a specific “financial obligation[],” but instead a fee that can be paid from the
payee’s general resources or any other source. See pp. 20-22, infra.
The point is not simply that respondent could have achieved “an economically equivalent result through taxation,” Koontz, 570 U.S. at
616. It is instead that in form, substance, and effect, the traffic impact mitigation fee is substantially similar to taxes to pay for public
improvements that do not constitute takings outside of the landpermitting context.
1
20
60-62, and they are reviewed deferentially. The
“amount of a user fee” need not “be precisely calibrated
to the use that a party makes of Government services[,]
[n]or does the Government need to record invoices and
billable hours to justify the cost of its services.” Id. at
60. Rather, user fees need only be a “fair approximation
of the cost of benefits supplied.” Ibid. (citation omitted).
Given the close similarity between the traffic impact
mitigation fee at issue here and the taxes and user fees
this Court has approved, petitioner cannot establish the
necessary predicate for an unconstitutional-conditions
claim under Nollan, Dolan, and Koontz.
b. Petitioner’s contrary arguments lack merit.
i. Petitioner errs in broadly suggesting (Pet. Br. 1213, 25-26) that outside of the permitting context, the
government engages in a taking whenever it obtains
“money” from a private party. Most obviously, as just
discussed, taxes and user fees are not takings. And
while petitioner suggests (Br. 25) that the fee here
would have constituted a taking “[h]ad the County singled out Mr. Sheetz, qua landowner and outside the permitting process, to make” the same “monetary payment
* * * for road improvements,” petitioner was not “singled out” to pay the fee. Rather, he was required to pay
the same fee as any similarly situated permit applicant
in the same use category (single-family residential) and
zone (6). That type of assessment or user fee would not
constitute a taking outside of the permitting process.
See, e.g., Tonawanda, 181 U.S. at 392 (upholding a special assessment where there was no evidence “that the
burdens imposed on the property of the complainant
were other than those imposed upon that of other persons in like circumstances”).
ii. More generally, in Eastern Enterprises v. Apfel,
524 U.S. 498 (1998), five Justices of this Court took the
21
view that the Takings Clause does not apply to
government-imposed financial obligations that “d[o] not
operate upon or alter an identified property interest.”
Id. at 540 (Kennedy, J., concurring in the judgment and
dissenting in part); see id. at 554-556 (Breyer, J., dissenting); but see id. at 522-537 (plurality opinion) (determining that the statute imposing retroactive liability
on coal operators to fund healthcare benefits of certain
retired coal miners effected a regulatory taking under
Penn Central).
The decisions petitioner cites (Br. 12-13) are consistent with the more limited proposition of five Justices
in Eastern Enterprises and the other decisions cited
above. They involved the government’s obtaining of
identified funds, such as the interest in a particular bank
account, see Brown v. Legal Found., 538 U.S. 216, 235
(2003); Phillips v. Washington Legal Found., 524 U.S.
156, 160 (1998); Webb’s Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155, 162 (1980), or the seizure of a
particular lien, Armstrong v. United States, 364 U.S. 40,
44 (1960), rather than an obligation to pay money from
any source.2
As petitioner appears to acknowledge (Br. 26 n.9), Norwood v.
Baker, 172 U.S. 269 (1898), involved “[s]pecial facts,” Wight v. Davidson, 181 U.S. 371, 385 (1901): The local government there attempted to evade the Takings Clause by condemning the landowner’s property to build a road; paying compensation; and then attempting to reclaim the money paid by demanding that the landowner pay it back as a purported assessment on her property. Contrary to petitioner’s suggestion (Br. 13), that case does not stand for
the proposition that any monetary fee—or even any monetary fee
associated with land, see pp. 22-23, infra—constitutes a taking. See
Phillip Wagner, Inc. v. Leser, 239 U.S. 207, 219 (1915) (explaining
that “much that is said in” Norwood “must be read in connection
with the [Court’s] subsequent cases”).
2
22
For that reason, “all circuits that have addressed the
issue” following Eastern Enterprises “have uniformly
found that a taking does not occur when the statute in
question imposes a monetary assessment that does not
affect a specific interest in property.” McCarthy v. City
of Cleveland, 626 F.3d 280, 285 (6th Cir. 2010) (collecting cases). As the Ninth Circuit recently explained,
“money may still be subject to a per se taking if it is a
specific, identifiable pool of money,” but an ordinance
that “imposes a general obligation to pay money and
does not identify any specific fund of money * * * does
not effectuate” a taking. Ballinger v. City of Oakland,
24 F.4th 1287, 1294-1295, cert. denied, 142 S. Ct. 2777
(2022).
iii. Petitioner’s suggestion that Koontz applies a different rule whenever a “direct link” exists between a
demand for money and a piece of real property is also
mistaken. E.g., Br. 26 (citation omitted). Koontz held
that the government could not leverage its interest in
obtaining an easement in property (and the accompanying right to exclude) to extract an in-lieu fee from the
owner. 570 U.S. at 612-614. Although the Court at
times expressed its holding broadly, see, e.g., id. at 619,
the Court did not purport to “apply [its] precedent from
the physical takings context” to all “[l]and-use regulations” that involve money, Tahoe-Sierra, 535 U.S. at
323-324. Rather, the Court viewed its decision as consistent with the understanding of Eastern Enterprises
discussed above. See Koontz, 570 U.S. at 617. And the
Court explained that it was unnecessary to “say more”
about whether a general obligation to pay money constitutes a taking because, in Koontz, “petitioner’s
money” was demanded as “a substitute for his deeding
to the public a conservation easement,” which outside of
23
the permitting context, would have constituted a taking.
570 U.S. at 617.
Koontz’s statement that the “fulcrum” of its analysis
was “the direct link between the government’s demand
and a specific parcel of real property,” must be read in
that “limited” context. 570 U.S. at 614. Especially so
understood, Koontz’s holding does not extend to this
case. Respondent did not attempt to extract a realproperty interest from petitioner, but instead imposed
a fee that may be paid from any source, and that (like a
special assessment or user fee) will be used to fund government infrastructure that will be built or expanded in
light of new development.
Indeed, a broad reading of Koontz would cause the
very confusion the decision disclaimed. The Court there
emphasized that its decision would 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.” 570 U.S. at 615. But
if any “direct link” between real property and the requirement to pay a fee were sufficient to trigger application of the Nollan/Dolan standard, then (contrary to
Koontz’s assurance) the government’s ability to impose
property taxes and other property-related fees would
be questioned. Such fees are often connected to a particular parcel and its “position, frontage, area, [or] market value”—yet those fees have never been considered
takings. Houck, 239 U.S. at 265; see, e.g., Ballinger, 24
F.4th at 1297 (finding that a “relocation fee” associated
with an apartment was not a taking, where the fee was
“linked to real property, but no more so than property
and estate taxes”).
24
2. The fee at issue here does not implicate the core
concerns underlying Nollan, Dolan, and Koontz
Respondent’s traffic impact mitigation fee lacks another key feature of Nollan, Dolan, and Koontz: It is
not assessed in discretionary, adjudicative proceedings,
but rather is predetermined through legislative action
“classifying entire areas of the [County].” Dolan, 512
U.S. at 385.
a. The Court’s land-use exaction decisions rest on a
determination “that land-use permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the
government often has broad discretion to deny a permit
that is worth far more than property it would like to
take.” Koontz, 570 U.S. at 604-605; see Nollan, 483 U.S.
at 837 & n.5. Indeed, in Dolan, the Court distinguished
“land use planning” laws it had previously upheld—
which involved “essentially legislative determinations
classifying entire areas of the city”—from the facts of
that case, which involved the city’s “adjudicative decision to condition petitioner’s application for a building
permit on an individual parcel.” 512 U.S. at 384-385.
The concerns discussed in Nollan, Dolan, and
Koontz do not apply to the broadly applicable legislative
fee at issue here. Like other land-use regulations this
Court has upheld, respondent’s fee schedule “classif [ies] entire areas of the [County],” Dolan, 512 U.S. at
385, and it applies broadly to new development. Neither
the formulation of that fee, nor its application to petitioner, rendered petitioner “especially vulnerable to the
type of coercion that the unconstitutional conditions
doctrine prohibits,” Koontz, 570 U.S. at 605. To the contrary, the fee was derived through a legislative process
that focused on balancing the legislature’s considered
25
judgment that new development should pay its fair
share of impacts on county roads with, inter alia, “the
need to keep the fees financially feasible” considering
affordable housing goals and business conditions. A.R.
3101; see A.R. 3080.
Legislative balancing of that kind does not present
the same risk of abuse of the permitting process that
animate Nollan, Dolan, and Koontz. Rather, like other
land-use planning decisions made by legislative bodies,
the impact fee here was a “change in the general law”
that might constitute a taking only if it “goes too far.”
Mahon, 260 U.S. at 413, 415; see, e.g., Palazzolo, 533
U.S. at 632 (remanding for state court to consider the
assertion that a permitting authority’s denial of a development permit constituted a taking “under the Penn
Central analysis”).
b. Petitioner contends (Pet. Br. 15-24) that Nollan,
Dolan, and Koontz in fact concerned legislatively imposed exactions—and that, as a result, all permitting
conditions in the land-use context are subject to those
decisions. That argument flouts not only the Court’s
express statements in those decisions, but also its
recognition in Lingle that “[b]oth Nollan and Dolan involved Fifth Amendment takings challenges to adjudicative land-use exactions—specifically, government demands that a landowner dedicate an easement allowing
public access to her property as a condition of obtaining
a development permit.” 544 U.S. at 546 (emphasis
added).
Petitioner is correct that legislation played some role
in the facts of Nollan, Dolan, and Koontz by either requiring or authorizing the types of conditions the permitting authorities ultimately imposed. But in each
case, the permitting authority made a parcel-specific
determination whether the statutory requirement ap-
26
plied or how it should be achieved. See Koontz, 570 U.S.
at 600-602; Dolan, 512 U.S. at 377-383; Nollan, 483 U.S.
at 828-829. Petitioner is thus wrong to suggest that the
Court understood those cases to involve only legislative
enactments. Indeed, if that were the case, it would have
made little sense for the Court to distinguish its prior
decisions upholding land-use regulations on the ground
that they “involved essentially legislative determinations classifying entire areas of the city,” rather than
“adjudicative decision[s]” regarding “individual parcel[s].” Dolan, 512 U.S. at 385.
c. Petitioner observes (Br. 29) that neither the
unconstitutional-conditions doctrine nor the Takings
Clause “exempts the legislative branch.” See Pet. Br.
29-37. But no one suggests they do. Rather, the special
application of the unconstitutional-conditions doctrine
adopted in Nollan and Dolan does not apply here because respondent’s fee could be constitutionally imposed outside of the permitting context. See pp. 16-23,
supra.
As for the Takings Clause, the question is simply
what standard courts use to determine whether the government has engaged in a taking requiring just compensation. The Court applies different standards to that
inquiry depending on the type of action at issue. See
pp. 10-13, supra. And while the branch of government
that takes an action is not dispositive, “the manner of
state action may matter” in determining whether a taking has occurred. Stop the Beach Renourishment, Inc.
v. Florida Dep’t of Envtl. Prot., 560 U.S. 702, 715 (2010)
(plurality opinion). 3
As petitioner observes (Br. 31), Cedar Point Nursery rejected
the suggestion that a physical invasion of property might not be a
3
27
3. Extending Nollan, Dolan, and Koontz to this context
would have problematic consequences
As already discussed, applying the “special” rule of
Nollan, Dolan, and Koontz to a legislative permitting
fee that is imposed pursuant to a non-discretionary
schedule and that is unrelated to a dedication requirement would unmoor that rule from its doctrinal underpinnings. It also would confuse the line between
(1) easements and in-lieu fees, and (2) “property taxes,
user fees, and similar laws and regulations that may impose financial burdens on property owners” without
constituting a taking. Koontz, 570 U.S. at 615.
Applying Nollan, Dolan, and Koontz to such fees
would be problematic for two additional reasons. First,
those decisions require an individualized determination
that would be unworkable in the legislative context.
Second, those decisions invert the usual burden of proof
for challenges to legislative action, requiring the government to demonstrate that its action satisfies the
nexus and rough-proportionality requirements.
a. i. Nollan, Dolan, and Koontz arose in the context of parcel-specific adjudicative determinations. In
that situation, the decisions require the government to
make “some sort of individualized determination that
per se taking “because it arises from a regulation.” 141 S. Ct. at
2072. The Court explained that the “essential question” was not
“whether the government action at issue comes garbed as a regulation (or statute, or ordinance, or miscellaneous decree),” but
“whether the government has physically taken property for itself or
someone else—by whatever means—or has instead restricted a
property owner’s ability to use his own property.” Ibid. This case
does not concern a physical taking claim, and Cedar Point Nursery
did not address a legislative permitting fee imposed under a nondiscretionary schedule and unrelated to any dedication of the
owner’s property.
28
the required dedication is related both in nature and extent to the impact of the proposed development.” Dolan, 512 U.S. at 391. But legislative bodies engaging in
programmatic decision-making do not make individualized determinations. Rather, the fee at issue here illustrates the level of generality at which legislative bodies
act. Before petitioner purchased or sought to develop
his property, respondent divided El Dorado County into
8 zones based on projected future development, and 14
development types based on the projected number of
trips on public roads that would result from each type
of use.
Petitioner contends (Br. 42-43) that to satisfy the
Takings Clause, respondent’s permitting authority
should have done what the legislature could not: provide a “mechanism” for making a parcel-specific determination that the impact fee has a nexus and is roughly
proportional to “the actual public impacts of ” “each proposed use or development.” But nothing in the Takings
Clause or this Court’s decisions mandates that vast expansion of the role of local permitting authorities who,
under state law, would otherwise ministerially apply a
legislatively predetermined fee.
To the contrary, this Court’s decisions illustrate the
ill fit between petitioner’s individualized standard and
legislative enactments. For example, the Court has distinguished between legitimate user fees and potential
takings by asking whether the fees are “so clearly excessive as to belie their purported character as a user
fee.” Sperry, 493 U.S. at 61-62. Similarly, the Court
has recognized that “special assessments [may be] imposed * * * in proportion to position, frontage, area,
market value, or to benefits estimated by commissioners,” and that “there is no requirement of the Federal
Constitution that for every payment there must be an
29
equal benefit.” Houck, 239 U.S. at 265. Those standards comport with the general understanding of the
Takings Clause, which “has never been read to require
the States or the courts to calculate whether a specific
individual has suffered burdens * * * in excess of the
benefits received” from a use restriction. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491
n.21 (1987).
By requiring an individualized inquiry under the
Nollan/Dolan standard, petitioner’s proposal also
would threaten grave and unwarranted administrative
costs. As petitioner acknowledges (Br. 43), his rule
would hamstring local governments from making predictive judgments, requiring instead that they justify
fees on a parcel-specific basis. That requirement would
be prohibitively costly for many local governments,
“transform[ing] government regulation into a luxury
few governments could afford,” Tahoe-Sierra, 535 U.S.
at 321. And it would deprive regulated parties of the
notice and clarity that comes with predetermined, classwide fees.
Moreover, petitioner’s rule would create the very
discretion that this Court found potentially problematic
in Nollan, Dolan, and Koontz. In those cases, the Court
expressed concern that the permitting authority’s wide
discretion introduced the risk of government burdening
a landowner’s right to just compensation. See p. 15, supra. By requiring parcel-specific adjudication, petitioner would introduce the concern that Nollan, Dolan,
and Koontz sought to mitigate.
ii. Petitioner asserts (Br. 38) that his approach is
workable on the theory that “[s]ince Dolan, lower
courts have applied the nexus and proportionality tests
to analyze legislative exactions designed to subsidize
road construction and maintenance.” But as petitioner
30
acknowledges, many of the cases he invokes involved
“site-specific” conditions that a landowner “dedicate
property” or pay an in-lieu fee. Pet. Br. 39 (discussing
B.A.M. Dev., L.L.C. v. Salt Lake Cnty., 282 P.3d 41, 4346 (Utah 2012)); see id. at 40-41 (addressing cases requiring the dedication of “property for road widening
and other traffic infrastructure”). Petitioner’s reliance
(Br. 42) on the Sixth Circuit’s decision in F.P. Dev., LLC
v. Charter Township, 16 F.4th 198 (2021), is misplaced
for similar reasons: The parties there did not “raise”
the question whether Nollan, Dolan, and Koontz applied to a tree-replacement or mitigation ordinance
(which resembled an in-lieu fee), and the court therefore did not decide that “interesting” issue. Id. at 206.
Petitioner thus provides no meaningful support for the
proposition that it is workable to apply a parcel-specific
analysis to legislatively predetermined fee schedules
that are wholly divorced from any dedication requirement.
iii. Nor is petitioner correct that declining to apply
Nollan, Dolan, and Koontz in this context would be “unworkable” because it would “require[] courts to draw
difficult lines between legislative and ad hoc or adjudicatory exactions.” Pet. Br. 43. Rules distinguishing between legislative enactments and adjudicative decisions
are hardly novel to the law.
For example, this Court has long recognized that due
process does not require individualized hearings where
“[g]eneral statutes within the state power are passed
that affect the person or property” of “more than a few
people.” Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915). Bi-Metallic itself concerned a legislative enactment “increasing the valuation
of all taxable property in Denver,” id. at 443-444, and
courts have applied the same distinction to due-process
31
challenges to land-use regulation, see, e.g., 75 Acres,
LLC v. Miami-Dade Cnty., 338 F.3d 1288, 1294 (11th
Cir. 2003). A similar dichotomy between generally applicable legislative or administrative standards, on the
one hand, and individualized determinations, on the
other, exists in the Fourth Amendment context. See,
e.g., Camara v. Municipal Ct., 387 U.S. 523, 538 (1967).
Most relevant here, numerous courts already distinguish, without difficulty, between legislative, nondiscretionary, generally applicable fees and ad hoc determinations subject to this Court’s land-use exactions
framework. See, e.g., Krupp v. Breckenridge Sanitation Dist., 19 P.3d 687, 696 (Colo. 2001) (en banc); Home
Builders Ass’n v. City of Scottsdale, 930 P.2d 993, 1000
(Ariz.) (en banc), cert. denied, 521 U.S. 1120 (1997).
b. Nollan, Dolan, and Koontz are a poor fit for legislatively imposed, widely applicable fees for the further
reason that they shift the burden to the government to
demonstrate that its action is constitutional.
As a general matter, statutes are presumed constitutional because “absent some reason to infer antipathy,
even improvident decisions will eventually be rectified
by the democratic process and * * * judicial intervention is generally unwarranted no matter how unwisely
[courts] may think a political branch has acted.” Vance
v. Bradley, 440 U.S. 93, 97 (1979) (footnote omitted).
The rule is generally the same in a suit challenging an
alleged taking: As the Court explained in Dolan, “in
evaluating most generally applicable” land-use laws,
“the burden properly rests on the party challenging the
regulation to prove that it constitutes an arbitrary regulation of property rights.” 512 U.S. at 391 n.8 (citing
Village of Euclid v. Ambler Realty Co., 272 U.S. 365
(1926)); see id. at 385; see also, e.g., Sperry, 493 U.S. at
60; Goldblatt v. Town of Hempstead, 369 U.S. 590, 596
32
(1962) (town ordinance on dredging and excavating
property subject to “the usual presumption of constitutionality”).
Dolan provides an exception where the government
makes “an adjudicative decision to condition” a landrelated permit on a dedication tied to “an individual parcel.” 512 U.S. at 391 n.8. In that “situation,” Dolan
stated, “the burden properly rests on the city.” Ibid.
But as already discussed, that exception rests on two
grounds, neither of which applies here. First, because
the government’s appropriation of an easement would
constitute a per se taking if made outside of the permit
context, the government bears the burden of avoiding
what otherwise would be its obligation to pay just compensation. Second, the Court has suggested that the
adjudicative context supports burden-shifting because
the government’s “broad discretion to deny a permit”
makes “permit applicants * * * especially vulnerable
to * * * coercion” in that situation. Koontz, 570 U.S. at
605. In the absence of those two conditions, no sound
basis exists to displace the usual presumption that legislative bodies act constitutionally.
C. Federal And State Law Already Provide Sufficient Protection Against Undue Interference With Property Interests
Finally, petitioner’s proposal to extend Nollan, Dolan, and Koontz to legislatively determined impact fees
like the one at issue here is unwarranted in light of the
significant protection already provided by federal and
state law.
1. The Takings Clause provides adequate protection
from unduly burdensome development fees. A landuse-related fee is permissible only if it is “a legitimate
exercise of the government’s police power.” Murr, 582
U.S. at 400. And Penn Central sets out a general test
33
applicable to land-use regulations. Under that framework, a fee might constitute a taking if it went “ ‘too
far’ ” based on factors such as its “economic impact,” “its
interference with reasonable investment-backed expectations, and the character of the government action.”
Cedar Point, 141 S. Ct. 2072 (citation omitted). A fee
that deprives the owner of all economically viable use of
the land also could constitute a taking under Lucas, 505
U.S. at 1019. And other provisions of the Constitution
would protect a landowner from being singled out from
other similarly situated individuals without a rational
basis, see, e.g., Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam) (Equal Protection Clause);
Sioux City Bridge Co. v. Dakota Cnty., 260 U.S. 441,
445 (1923), or from arbitrary fees, see p. 18, supra (Due
Process Clause).
2. State law provides additional protection. In California, the Mitigation Fee Act requires “a reasonable
relationship between” “the fee’s use” and “the need for
the public facility,” on the one hand, and “the type of
development project on which the fee is imposed,” on
the other. Cal. Gov’t Code § 66001(a)(3) and (4) (2022);
see id. § 66001(g) (providing that the fee “shall not include the costs attributable to existing deficiencies in
public facilities”). That standard, tailored to legislatively determined impact fees, is parallel to the one this
Court adopted to focus on individual parcels in Nollan
and Dolan, see Dolan, 512 U.S. at 391, and it has been
adopted by a majority of States, Shelley Ross Saxer,
When Local Government Misbehaves, 2016 Utah L.
Rev. 105, 112 (2016). Given this substantial protection,
there is no reason to unmoor the nexus and roughproportionality standards from their doctrinal underpinnings and apply them to generally applicable legisla-
34
tive fees unrelated to any government attempt to obtain
a dedication of real property.
CONCLUSION
The judgment of the California Court of Appeal
should be affirmed.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
TODD KIM
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor
General
WILLIAM B. LAZARUS
DANIEL HALAINEN
JACOB D. ECKER
Attorneys
DECEMBER 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.