Petition for Writ of Certiorari — The Coalition for Fairness in SoHo and NoHo, Inc., et al., Petitioners v. City of New York, New York, et al.

Supreme Court briefApr 13, 2026

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No.

In the Supreme Court of the United States

_________

T HE C OALITION FOR F AIRNESS IN S OH O AND N OH O ,

I NC .; K AY P OWELL ; A MIT S OLOMON; I AN K ERNER;

L ISA R UBISCH ; SARA BERSHTEL ; J ENNIFER P ETTIT ;

L YNN S CHNITZER; ARTHUR S CHNITZER ;

CATERINA R OIATTI; R OBERT T RABOSCIA,

Petitioners,

v.

CITY OF N EW Y ORK, ET AL .,

Respondents.

_________

On Petition For A Writ Of Certiorari

To The New York Court of Appeals

_________

PETITION FOR A WRIT OF CERTIORARI

_________

J ACK L. L ESTER

41 Squaw Road

East Hampton, NY 11937

(631) 604-2228

DEBORAH J. LA FETRA

JONATHAN HOUGHTON

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, VA 22201

(202) 888-6881

CHRISTOPHER M. K IESER

Counsel of Record

BRIAN T. H ODGES

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, CA 95814

(916) 419-7111

CKieser@pacificlegal.org

Counsel for Petitioners

i

QUESTION PRESENTED

The New York City neighborhoods of SoHo and

NoHo contain 1,636 lofts subject to a highly restrictive

and outdated zoning designation limiting occupancy

to City-certified artists. But few certified artists

remain, leaving the mostly non-artist current

residents bereft of qualified buyers.

Residents

seeking to transition to a standard residential zoning

designation must obtain a conversion permit. But to

apply for a permit, residents must pay more than $100

per square foot—hundreds of thousands of dollars per

home—into a City-administered “Arts Fund.”

Residents challenged the fee as an unconstitutional

permit condition. Under Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), and Dolan v. City of

Tigard, 512 U.S. 374 (1994), the Fifth Amendment’s

Takings Clause limits the government’s power to

demand property from permit applicants in exchange

for approval. Koontz v. St. Johns River Water

Management District, 570 U.S. 595 (2013), recognized

that these limits extend to monetary demands. But

the New York Court of Appeals refused to apply

Nollan and Dolan. Conflicting with other state high

courts, it held that a monetary demand triggers the

unconstitutional conditions doctrine only where it is

imposed in lieu of a dedication of real property.

The question presented is:

Does the protection the Takings Clause provides to

land-use permit applicants encompass monetary

demands beyond those imposed in lieu of a dedication

of real property?

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioners were petitioners in the Supreme Court

of New York, County of New York, appellants in the

Supreme Court of New York, Appellate Division, and

respondents in the New York Court of Appeals. The

case began in the trial court as an Article 78 petition.

This is a mechanism under New York law to challenge

decisions of local governments. Petitioners are the

Coalition for Fairness in SoHo and NoHo, Inc.; Kay

Powell; Amit Solomon; Ian Kerner; Lisa Rubisch; Sara

Bershtel; Jennifer Pettit; Lynn Schnitzer; Arthur

Schnitzer; Caterina Roiatti; and Robert Traboscia.

Respondents were Respondents in the Supreme

Court of New York. They are the City of New York;

New York City Department of City Planning; New

York City Planning Commission; New York City

Council; and Zohran Mamdani, in his official capacity

as Mayor of the City of New York. 1

The Coalition for Fairness in SoHo and NoHo, Inc.,

does not have a parent corporation, and no publicly

held corporation owns more than 10% of its stock. The

remaining Petitioners are natural persons.

Eric Adams was Mayor when the Article 78 petition was filed

in the Supreme Court of New York. Zohran Mamdani replaced

him on January 1, 2026.

1

iii

STATEMENT OF RELATED CASES

These proceedings are directly related to the abovecaptioned case under Rule 14.1(b)(iii):

Coalition for Fairness in SoHo & NoHo, Inc. v. City

of New York, No. 112 (N.Y. Jan. 13, 2026)

Coalition for Fairness in SoHo & NoHo, Inc. v. City

of New York, No. 2023-05338 (N.Y. App. Div.

Dec. 5, 2024)

Coalition for Fairness in SoHo & NoHo, Inc. v. City

of New York, No. 151255/2022 (N.Y. Sup. Ct. Oct. 6,

2023)

iv

TABLE OF CONTENTS

Petition for a writ of certiorari .................................. 1

Opinions below ........................................................... 5

Jurisdiction ................................................................ 5

Constitutional and statutory provisions involved .... 5

Statement of the case ................................................ 6

A. History of land use in SoHo and NoHo .......... 6

B. The rezoning and the Arts Fund fee .............. 8

C. The lawsuit .................................................... 10

Reasons for granting the petition ........................... 13

I. The decision below opens a split among state

high courts over whether monetary exactions

trigger the unconstitutional conditions

doctrine ............................................................... 13

II. The decision below conflicts with multiple

strands of this Court’s precedent and creates

an end run around Nollan and Dolan ............... 20

A. The decision below incorrectly assumed that

a monetary obligation can never be the

object of a takings claim ............................... 21

B. The decision below incorrectly assumed that

application of the unconstitutional

conditions doctrine depends upon the

owner’s entitlement to the land use ............. 25

III. This case is an excellent vehicle to address a

question of nationwide importance .................. 30

Conclusion ................................................................ 32

v

APPENDIX

Opinion, State of New York Court of Appeals,

No. APL-2025-00028, filed January 13, 2026 .... 1a

Opinion, Supreme Court of the State of New York,

Appellate Division, First Judicial Department,

Index No. 151255/2022, Case No. 2023-05338,

filed December 5, 2024 ...................................... 54a

Decision and Order on Motion, Supreme Court

of the State of New York, New York

County, Index No. 151255/2022,

filed October 9, 2023 ......................................... 58a

Zoning Resolution 143-13, Joint Living-Work

Quarters for Artists........................................... 81a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

225 Northport, LLC v. Vill. of Northport,

No. 24-CV-2967, 2025 WL 2782360

(E.D.N.Y. Sep. 30, 2025)...................................... 19

Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, Inc.,

570 U.S. 205 (2013) ............................................. 27

All. for Responsible Plan. v. Taylor,

63 Cal. App. 5th 1072 (2021)............................... 18

Alpine Homes, Inc. v. City of W. Jordan,

424 P.3d 95 (Utah 2017)................................. 15-16

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

of Hartnett,

876 S.E.2d 476 (N.C. 2022) ............. 3, 13-14, 16-20

Ark. Game & Fish Comm’n v. United States,

568 U.S. 23 (2012) ............................................... 20

Armstrong v. United States,

364 U.S. 40 (1960) ....................................... 2, 4, 22

In re Black Diamond Min. Co., LLC,

507 B.R. 209 (E.D. Ky. 2014) .............................. 30

Brown v. Legal Found. of Wash.,

538 U.S. 216 (2003) .................................... 4, 21-23

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

12 N.W.3d 56 (Mich. Ct. App. 2023) ................... 16

Connick v. Myers,

461 U.S. 138 (1983) ............................................. 26

Dolan v. City of Tigard,

512 U.S. 374 (1994) ..................... 1-4, 10-12, 14-17,

19-20, 23-25, 27, 29-31

vii

Doyle v. Cont’l Ins. Co.,

94 U.S. (4 Otto.) 535 (1876) ................................ 26

Eastern Enterprises v. Apfel,

524 U.S. 498 (1998) ........................................ 22-24

Ehrlich v. City of Culver City,

12 Cal. 4th 854 (1996) ................................... 14, 19

Graham v. Richardson,

403 U.S. 365 (1971) ............................................. 27

Hollywood, Inc. v. Broward Cnty.,

431 So. 2d 606

(Fla. Dist. Ct. App. 1983) .................................... 18

Home Builders Ass’n of Cent. Ariz. v.

City of Scottsdale,

187 Ariz. 479 (1997)............................................. 14

Home Builders Ass’n of Dayton & the

Miami Valley v. Beavercreek,

89 Ohio St. 3d 121 (2000) .................................... 14

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

570 U.S. 595 (2013) .... 1-4, 12, 15, 18, 22-24, 27-29

Krupp v. Breckenridge Sanitation Dist.,

19 P.3d 687 (Colo. 2001) ...................................... 14

Levin v. City & Cnty. of San Francisco,

71 F. Supp. 3d 1072 (N.D. Cal. 2014) ............ 16-17

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

544 U.S. 528 (2005) ............................................. 27

Loretto v. Teleprompter Manhattan

CATV Corp.,

458 U.S. 419 (1982) ............................................. 21

Louisville Joint Stock Land Bank v. Radford,

295 U.S. 555 (1935) ......................................... 4, 22

McAuliffe v. City of New Bedford,

29 N.E. 517 (Mass. 1892) .................................... 26

viii

McCarthy v. City of Leawood,

257 Kan. 566 (1995)............................................. 14

Mem’l Hosp. v. Maricopa Cnty.,

415 U.S. 250 (1974) ............................................. 27

N. Ill. Home Builders Ass’n, Inc. v.

Cnty. of Du Page,

165 Ill. 2d 25 (1995) ............................................. 14

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ..................... 1-4, 10-12, 14-17,

19-20, 23-25, 27-31

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 27

Shapiro v. Thompson,

394 U.S. 618 (1969) ............................................. 27

Sheetz v. Cnty. of El Dorado,

84 Cal. App. 5th 394 (2022)................................. 18

Sheetz v. Cnty. of El Dorado,

335 Cal. Rptr. 3d 316

(Ct. App. 2025) ................................ 4, 17-19, 27, 29

Sheetz v. El Dorado Cnty.,

601 U.S. 267 (2024) ........................2, 11, 17, 24, 29

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

183 So. 3d 396 (Fla. Dist. Ct. App. 2014) ........... 31

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

5 So. 3d 8 (Fla. Dist. Ct. App. 2009) ................... 18

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

77 So. 3d 1220 (Fla. 2011) ................................... 15

Suffolk Cnty. Builders Ass’n, Inc. v.

Suffolk Cnty.,

46 N.Y.2d 613 (1979) ........................................... 25

ix

Tap House Real Est., LLC v. City of

Rochester,

No. 22-cv-492, 2024 WL 3470824

(D. Minn. Jul. 19, 2024)....................................... 19

Town of Flower Mound v. Stafford

Estates Ltd. P’ship,

135 S.W.3d 620 (Tex. 2004) ................................. 14

United States v. Sec. Indust. Bank,

459 U.S. 70 (1982) ............................................... 22

Vill. of Euclid v. Ambler Realty,

272 U.S. 365 (1926) ............................................. 24

Vill. of Norwood v. Baker,

172 U.S. 269 (1898) ............................................. 21

Webb’s Fabulous Pharmacies v.

Beckwith,

449 U.S. 155 (1980) .................................... 4, 21-22

Whitfield v. City of New York,

96 F.4th 504 (2d Cir. 2024) ................................. 10

Constitutional Provisions

U.S. Const amend. I .................................................. 26

U.S. Const amend. V....................................... 5, 13, 27

Statutes

28 U.S.C. § 1257 .......................................................... 5

N.Y. Mult. Dwell. §§ 275-278 ..................................... 6

N.Y. Mult. Dwell. §§ 280-287 ..................................... 6

Other Authorities

Brief for Amici Curiae City & Cnty. of

San Francisco, et al., Sheetz v. Cnty.

of El Dorado, No. 22-1074, 2023 WL

8869700 (U.S. Dec. 19, 2023) .............................. 30

x

County of El Dorado Response Br.,

Sheetz v. Cnty. of El Dorado,

No. C093682, 2022 WL 1570886

(Cal. Ct. App. Apr. 14, 2022) ............................... 18

Dana, David A., Land Use Regulation in

an Age of Heightened Scrutiny,

75 N.C. L. Rev. 1243 (1997) .................................. 3

Friedman, Lawrence M., et al., State

Supreme Courts: A Century of Style

and Citation,

33 Stan. L. Rev. 773 (1981) ................................. 30

Nat’l Ass’n of Home Builders, Building

Permits by State and Metro Areas,

https://tinyurl.com/562wfmbv

(last visited Apr. 6, 2026) .................................... 30

New York City Dep’t of Buildings,

Converting from JLWQA to

Residential Use,

https://tinyurl.com/3wa3j2xm

(last visited Apr. 6, 2026) ...................................... 9

New York City Dep’t of City Planning,

Rules for Special Areas,

https://tinyurl.com/3ymyv2yw

(last visited Apr. 6, 2026) ...................................... 9

Petition for Writ of Certiorari, Koontz v.

St. Johns River Water Mgmt. Dist.,

No. 11-1447, 2012 WL 1961402 (U.S.

May 30, 2012) ...................................................... 15

Van Alstyne, William W., The Demise of

the Right-Privilege Distinction in

Constitutional Law,

81 Harv. L. Rev. 1439 (1968) ......................... 25-26

Zoning Resolution § 143-002 .................................... 10

xi

Zoning Resolution 41-11 (1971),

https://tinyurl.com/3r9npb78 ................................ 7

1

PETITION FOR A WRIT OF CERTIORARI

New York City is withholding permits for a

necessary zoning change to force a group of private

property owners in Lower Manhattan to fund public

art. App. 81a-82a. Artist-restricted housing in the

SoHo and NoHo neighborhoods is an outdated relic of

the area’s manufacturing history. App. 56a. That is

why the City rezoned the area to encourage general

residential use, banning the restrictive zoning going

forward. App. 81a. But the rezoning comes with a

price levied only on the residents of designated artist

housing. Under the challenged Zoning Resolution, a

resident seeking to convert a loft to residential use

must obtain a conversion permit. App. 81-82a. Even

to apply for this permit, each owner must pay more

than $100 per square foot—more than $250,000 for

the typical home—into the City’s “Arts Fund.” Ibid.;

see also App. 28a. When multiplied by the 1,636

artist-restricted homes, the City demands more than

$450 million from residents in exchange for a zoning

change that is consistent with its general plan.

Because the City demands that residents

surrender their property—money—as a condition to

obtain a land-use permit, the state intermediate

appellate court applied this Court’s land-use exactions

precedents, Nollan v. California Coastal Commission,

483 U.S. 825 (1987), and Dolan v. City of Tigard, 512

U.S. 374 (1994). App. 55a-57a. Those cases make

clear that the Constitution permits the government to

demand property in exchange for a land-use permit

only if “there is a ‘nexus’ and ‘rough proportionality’

between the property that the government demands

and the social costs of the applicant’s proposal.”

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

2

595, 605-06 (2013). Under this standard, the New

York Supreme Court, Appellate Division, unanimously concluded that the Arts Fund fee is an

unconstitutional condition on the residents’ permit

applications because it is unrelated to any legitimate

City interest in denying conversions and does not

mitigate any actual impact of the conversions. App.

56a-57a.

The New York Court of Appeals reversed. App.

26a. In sustaining the Arts Fund fee, the Court of

Appeals did not challenge the lower court’s Nollan and

Dolan analysis. Instead, it adopted a categorical rule

excluding monetary exactions from heightened

scrutiny altogether. Although Koontz held that “the

government’s demand for property from a land-use

permit applicant must satisfy the requirements of

Nollan and Dolan . . . even when its demand is for

money,” 570 U.S. at 619, the Court of Appeals limited

this holding to money demanded in lieu of a

requirement that the applicant dedicate real property.

App. 20a-25a.

Because the City demanded a

monetary contribution to the Arts Fund rather than

an interest in real property, the Court of Appeals held

that the demand did not trigger the protections of

Nollan and Dolan. App. 24a-25a.

Nollan, Dolan, Koontz, and Sheetz v. El Dorado

County, 601 U.S. 267 (2024), recognized important

limits on the government’s power to use its leverage

over a land-use permit applicant to force a property

owner “to bear public burdens which, in all fairness

and justice, should be borne by the public as a whole.”

Armstrong v. United States, 364 U.S. 40, 49 (1960). By

excluding monetary exactions from these protections,

the decision below creates a roadmap for permitting

authorities to evade Nollan and Dolan. Under its

3

logic, instead of demanding real property or in-lieu

fees to purchase offsite property, governments could

simply impose an extortionate fee to support any

public purpose—even condemnation of public easements otherwise unlawful under Nollan and Dolan.

See Koontz, 570 U.S. at 612 (without heightened

scrutiny for monetary exactions, “it would be very

easy for land-use permitting officials to evade the

limitations of Nollan and Dolan”); David A. Dana,

Land Use Regulation in an Age of Heightened Scrutiny, 75 N.C. L. Rev. 1243, 1260 n.88 (1997) (if Nollan

and Dolan do not extend to monetary conditions,

governments “could rely on monetary conditions to

reach the same objectives they previously achieved by

means of non-monetary conditions”). Consequently,

Nollan and Dolan would cease to be effective limits on

the government’s permitting power.

The Court covered much of this ground in Koontz,

which applied the logic of Nollan and Dolan to

monetary exactions. But the Court of Appeals’

decision opened a split over whether Koontz applies

broadly to all monetary exactions, or, as the Court of

Appeals held, only to those monetary exactions

explicitly imposed in lieu of a demand for real

property. Compare App. 20a-25a with Anderson Creek

Partners, L.P. v. Cnty. of Hartnett, 876 S.E.2d 476, 496

(N.C. 2022) (concluding that “the ‘monetary exactions’

with which Koontz was concerned were not limited to

‘in lieu of’ fees and, instead, encompassed a broader

range of governmental demands for the payment of

money as a precondition for the approval of a land-use

permit”). Certiorari is warranted to resolve this

conflict, which has implications for land-use

permitting nationwide.

4

Certiorari is also warranted because the Court of

Appeals’ analysis conflicts with this Court’s

traditional understanding of the unconstitutional

conditions doctrine. Specifically, the Court of Appeals’

assumption that the Arts Fund fee could not trigger

the doctrine because it is a mere financial obligation

cannot be reconciled with this Court’s consistent

recognition that the government violates the Takings

Clause when it seizes money tied to a particular

property interest. See, e.g., Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155, 163-65 (1980); Brown

v. Legal Found. of Wash., 538 U.S. 216, 236, 240

(2003). Indeed, Koontz cited these precedents, along

with cases recognizing the seizure of a lien as a taking,

for the proposition that a monetary obligation may

trigger Nollan and Dolan. 570 U.S. at 613, 616-17

(citing Armstrong, 364 U.S. at 44-49, and Louisville

Joint Stock Land Bank v. Radford, 295 U.S. 555, 60102 (1935)). Relatedly, the court below mistakenly

focused on the residents’ lack of entitlement to

conversion, App. 18a-19a, something that is never

relevant in this Court’s unconstitutional conditions

precedent because there is no need to apply for

something to which one is automatically entitled.

This case presents a clean vehicle to resolve these

important conflicts. The New York Court of Appeals

addressed only whether Nollan and Dolan apply

where the permitting agency demands money not in

lieu of a demand that the applicant cede a real

property interest. There is no credible argument that

the Arts Fund fee is a tax or user fee. So, much like

Koontz and Sheetz, this petition presents only the

predicate question of law: whether the City must

satisfy the nexus and proportionality tests before it

can force selected residents to subsidize public art in

5

exchange for a conversion permit. Whether the Arts

Fund fee can satisfy these tests will be left to the lower

courts on remand. Here, the Court need only answer

a pure question of law that has percolated in the lower

courts for more than a decade. A clear answer would

provide much-needed certainty to landowners and

permitting authorities confronted with monetary

conditions applied to millions of land-use permits

sought each year across America.

OPINIONS BELOW

The opinion of the New York Court of Appeals

(App. 1a) will be reported and is currently available at

2026 WL 88133. The opinion of the Appellate Division

(App. 54a) is reported at 233 A.D. 3d 433. The opinion

of the Supreme Court of New York (App. 58a) is

unpublished, but available at 2023 WL 6535289.

JURISDICTION

The judgment of the New York Court of Appeals

was entered on January 13, 2026. This Court has

jurisdiction under 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides, in relevant part, “nor shall

private property be taken for public use, without just

compensation.”

New York City Zoning Resolution 143-13, in

relevant part, is reprinted at App. 81a.

6

STATEMENT OF THE CASE

A. History of Land Use in SoHo and NoHo

SoHo and NoHo are lower Manhattan neighborhoods centered around Houston Street. 1 Between the

Civil War and World War II, both neighborhoods were

important manufacturing centers. App. 4a. But

manufacturing began to decline in the postwar years,

and by the 1960s the neighborhoods contained many

vacant buildings. Ibid. These abandoned cast-iron

lofts, with their large floor plans, high ceilings, and

sturdy floors, attracted many artists to the area. Ibid.

But SoHo and NoHo were still zoned for

manufacturing use, so artists living and working in

the lofts were engaged in a nonconforming use. See

App. 4a, 50a.

To rectify this situation, in 1971 the state

legislature enacted Article 7-B of the Multiple

Dwelling Law.

The law established a new

designation—“joint living-work quarters for artists,”

or JLWQA—and allowed artists to convert manufacturing lofts to JLWQA to legalize their occupancy

as long as they met certain health and safety

standards. N.Y. Mult. Dwell. §§ 275-278. Gradually,

the legislature allowed conversion of different types of

manufacturing units to JLWQA. See, e.g., id. §§ 280287.

New York City continued to zone the areas for

manufacturing use, prohibiting general residential

SoHo is short for “South of Houston Street;” NoHo for “North

of Houston Street.” See App. 3a.

1

7

and retail use. Envision at 36. 2 City zoning law

permitted only those who were certified as artists by

the Department of Cultural Affairs, and their

families, to occupy JLWQA homes. App. 4a-5a, 60a.

The JLWQA restriction was legally designated as a

manufacturing use. 3 It sought to balance legalizing

the artists’ residences with the City’s desire to protect

the neighborhoods’ remaining manufacturing jobs

from large-scale residential and retail development.

Envision at 40.

Yet the City never effectively enforced the artist

restriction. By 1983, a Department of City Planning

survey showed that certified artists occupied only 30%

of JLWQA units. Envision at 39. In 1986 the City

passed an “interim” measure that allowed non-artists

to remain in their homes and permitted family

members of certified artists to remain there when the

artists moved out or died. See App. 6a. Meanwhile,

the number of artists the City certified each year

plunged, effectively eliminating any legal market for

JLWQA-designated homes. Envision at 39. The

City’s non-enforcement of the JLWQA restriction

combined with a lack of eligible artist-buyers rendered

the JLWQA designation obsolete. App. 56a (acknowledging the Envision Report’s conclusion that the

JLWQA restriction is “outdated”). Consequently,

2 The Department of City Planning’s November 2019

“Envision SoHo/NoHo” Report was part of the record below and

referenced in the court’s opinions. See, e.g., App. 4a-6a. It is cited

as “Envision” here for clarity.

It is available at

https://tinyurl.com/3873s7ew (last visited Apr. 6, 2026).

3 The purpose of JLWQA was “to protect residences from an

undesirable environment and to ensure the reservation of

adequate areas for industrial development.” Zoning Resolution

41-11 (1971), https://tinyurl.com/3r9npb78.

8

SoHo and NoHo grew into

neighborhoods they are today.

the

mixed-use

B. The Rezoning and the Arts Fund Fee

This situation persisted until 2018, when the City

finally endeavored to update the zoning in SoHo and

NoHo. In the Envision SoHo/NoHo Report, the

Department of City Planning recognized that

“[p]olicies enshrined in zoning and other regulations

in the early 1970’s have become ineffective tools to

manage and support the vibrant mixed-use environments that define the neighborhoods today.” Envision

at 11. It recognized that “many residents who are not

certified artists are caught in legal limbo,” while

“residents who are themselves certified artists have a

limited ability to sell, rent, and grant units.” Envision

at 40. Particularly due to the dearth of certified

artists—fewer than five per year in some recent

years—“owners of market-rate rental buildings

struggle with finding certified artist tenants to comply

with legal requirements.” Ibid. The report concluded

that the JLWQA restriction was “outdated.” Envision

at 62.

But rather than simply permitting residential use

of JLWQA homes, the City proposed a “conversion”

process. To convert a JLWQA home to residential use,

an owner would have to apply for a permit and pay

into a City-administered Arts Fund.

Despite

overwhelming public opposition—including a 36-1 nay

vote from the local Community Board—the City

ultimately approved the rezoning conversion process

with the mandatory Arts Fund fee. See App. 30a-31a.

Under the 2021 Zoning Resolution, general

residential and retail uses are permitted as of right in

SoHo and NoHo except for existing JLWQA residents.

9

See App. 56a. The Zoning Resolution bans new

JLWQA units and effectively requires existing nonartist residents of such units to apply for a permit to

convert their homes to general residential use. App.

81a-82a. 4 Conversion serves no health and safety

purpose because JLWQA homes are already certified

as fit for occupation by the City’s Department of

Buildings. 5

Before applying for a conversion permit, applicants

must pay “a non-refundable contribution” to the

“SoHo-NoHo Arts Fund” in the amount of “$100 per

square foot of floor area to be converted.” App. 81a82a. 6 The City has no specific plans for its windfall

As written, the City’s rezoning effectively forced JLWQA

residents who are not certified artists (nearly all of them) to

convert or remain subject to fines or other enforcement for

maintaining a nonconforming use. See New York City Dep’t of

Buildings, Converting from JLWQA to Residential Use,

https://tinyurl.com/3wa3j2xm (last visited Apr. 6, 2026) (listing

potential enforcement mechanisms). State law now permits each

resident living in a JLWQA home on the date of the rezoning to

remain there as if he or she were a certified artist. See App. 62a.

This removed the immediate threat of displacement, but not the

eventual need to convert.

5 The parties stipulated in the trial court that conversions are

essentially ministerial undertakings because “the building

regulations applying to JLWQA and Residential UG2 are

similar.” Coalition for Fairness in SoHo & NoHo, Inc. v. City of

New York, Supreme Court, New York County, Index No.

151255/2022, NYSCEF Doc. No. 171, at 4 (June 16, 2023).

6 The amount increases annually to account for inflation.

Each additional dollar per square foot increases the overall fee

about $2,500. The current fee stands at $115.76 per square foot.

New York City Dep’t of City Planning, Rules for Special Areas,

https://tinyurl.com/3ymyv2yw (last visited Apr. 6, 2026). Thus,

the cost to apply for a conversion permit now approaches

$300,000 for most homes.

4

10

and only the vaguest constraints on how it is spent.

According to the City, the fee is designed to “support

arts programming, projects, organizations, and

facilities that promote the public presence of the arts”

in lower Manhattan and “extend[] the cultural legacy

of SoHo and NoHo generally.” App. 31a (quoting

Zoning Resolution § 143-002).

Conversions are theoretically voluntary. But in

practice, JLWQA residents have little choice but to

pay the fee and seek conversion eventually. See supra

n.4. Because so few certified artists remain, the

market for artist-restricted housing is extremely

limited. See Envision at 39-40. And the current

residents will not live forever—when a present

JLWQA owner dies, someone will have to pay the Arts

Fund fee. Eventually, all 1,636 units will have to be

converted. This will net the City a windfall of more

than $450 million, with nearly boundless discretion on

how to spend it.

C. The Lawsuit

Petitioners are JLWQA residents and a nonprofit

association representing them (“Residents”). They

challenged the Arts Fund fee in New York state

court. 7 Among other things, the Residents argued the

fee was an unconstitutional monetary exaction that

could not satisfy Nollan and Dolan. App. 71a. The

Supreme Court, New York County, upheld the Arts

Fund fee. In its view, a conversion permitting process

The Residents brought an Article 78 petition in the Supreme

Court of New York. See App. 59a-60a. An Article 78 petition is

a “special proceeding[] in which a petitioner may obtain speedy

review of state administrative action.” Whitfield v. City of New

York, 96 F.4th 504, 511 (2d Cir. 2024).

7

11

does not involve “a land use decision which

conditioned approval of development on the

dedication of property to public use.” App. 75a.

Characterizing the Arts Fund fee as a standalone

monetary exaction not related to a demand for real

property, the state trial court refused to apply Nollan

and Dolan. App. 77a.

The Appellate Division unanimously reversed. The

five-member intermediate appellate panel held that

“[t]he Arts Fund fee constitutes a permit condition for

which the ‘two-part test modeled on the unconstitutional conditions doctrine’ applies.” App. 55a-56a

(quoting Sheetz, 601 U.S. at 270-71, 274-76). It then

held that the Arts Fund fee could not satisfy either

Nollan or Dolan. As for Nollan’s nexus requirement,

the Appellate Division held that the Arts Fund fee “is

not related to any land use interest” and does not

“promote the asserted legitimate end of preserving

JLWQA stock for certified artists.” App. 56a-57a. And

the fee failed Dolan’s rough proportionality test

because “the conversion of [JLWQA] units imposes no

increased costs to the artistic community.” App. 57a.

Without evidence of impact flowing from the

conversions, no exaction could satisfy proportionality.

The City appealed to the New York Court of

Appeals, which reversed in a divided opinion. The

majority refused to apply Nollan and Dolan because it

found that the Residents “failed to identify any

compensable property interest within the meaning of

the Takings Clause that the [Arts Fund] Fee affects.”

App. 17a. According to the majority, the fee itself

could not trigger the unconstitutional conditions

doctrine as a categorical matter, because it “is not

requested ‘in lieu of’ a transfer of a private property

interest, and thus it would not constitute a

12

compensable taking if it were imposed directly rather

than as a condition of receiving a conversion permit.”

App. 17a-18a; see also App. 20a-25a (reading Koontz

to extend Nollan and Dolan only to fees demanded in

lieu of a dedication of real property).

Judge Halligan concurred. She agreed with the

majority’s reading of Koontz “as applying only to

monetary conditions which are offered as an alternative to a condition that would be a per se taking if

imposed directly.” App. 27a. But she recognized that

applying Nollan and Dolan to monetary exactions

“has some merit, and it may well eventually prevail.”

Ibid. And she cast doubt on some of the majority’s

rationales, writing that she was “not persuaded that

the lack of any entitlement to conversion or

diminishment in the value of a JLWQA unit resolves

the question before us.” App. 26a.

Judge Garcia dissented. In his view, Koontz

requires that “such monetary exactions as conditions

on permit approvals be examined under the Nollan/

Dolan standard.” App. 41a. Judge Garcia explained

that Koontz itself did not involve an in-lieu fee and

nothing in the opinion limits it to such fees. App. 41a42a. Instead, a monetary exaction triggers the

unconstitutional conditions doctrine because the

demand is “linked to a specific identifiable property

interest such as . . . parcel of real property,” which

renders the fee itself the predicate taking. App. 44a

(quoting Koontz, 570 U.S. at 614). Proceeding to apply

Nollan and Dolan, Judge Garcia agreed with the

Appellate Division that the Arts Fund fee failed both

tests and is an unconstitutional condition. App. 51a53a.

13

REASONS FOR GRANTING THE PETITION

The New York Court of Appeals’ categorical

holding that the unconstitutional conditions doctrine

does not reach monetary exactions unless they are

imposed in lieu of a dedication of real property

squarely conflicts with the decisions of the North

Carolina Supreme Court and several other state

courts interpreting Koontz. It also diverges from preKoontz precedent applying heightened scrutiny to

monetary demands. Left uncorrected, the Court of

Appeals’ rule threatens to swallow the protections the

Fifth Amendment provides land-use permit applicants against extortionate government demands.

Clarity on this point is essential because land-use

permitting is ubiquitous across all jurisdictions,

affecting millions of landowners. This case presents a

clean vehicle to resolve the split. The Court should

grant the petition.

I.

The Decision Below Opens a Split Among

State High Courts Over Whether Monetary

Exactions Trigger the Unconstitutional

Conditions Doctrine

The New York Court of Appeals’ decision

exacerbates confusion in the lower courts as to which

monetary exactions are subject to Nollan/Dolan

scrutiny. The majority below held that the unconstitutional conditions doctrine provides land-use permit

applicants no protection against extortionate fees

unless the government imposes the fee in lieu of

requiring a dedication of real property. App. 17a-25a.

By contrast, the North Carolina Supreme Court in

Anderson Creek held that “the ‘monetary exactions’

with which Koontz was concerned were not limited to

‘in lieu of’ fees and, instead, encompassed a broader

14

range of governmental demands for the payment of

money as a precondition for the approval of a land-use

permit.” 876 S.E.2d at 496.

The existing split harkens back to the one this

Court addressed more than a decade ago in Koontz.

After Nollan and Dolan established limits on the

government’s power to use the permitting process to

extract property concessions from applicants, several

state high courts applied these protections to purely

monetary exactions. See N. Ill. Home Builders Ass’n,

Inc. v. Cnty. of Du Page, 165 Ill. 2d 25, 30-33 (1995)

(traffic impact fee); Ehrlich v. City of Culver City, 12

Cal. 4th 854, 859, 862, 874-76 (1996) (recreation and

art fees); Home Builders Ass’n of Dayton & the Miami

Valley v. Beavercreek, 89 Ohio St. 3d 121, 124, 128

(2000) (traffic impact fee); Town of Flower Mound v.

Stafford Estates Ltd. P’ship, 135 S.W.3d 620, 622, 63940 (Tex. 2004) (traffic impact fee). Others disagreed.

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

687, 691, 697 (Colo. 2001) (plant investment exaction

not subject to Nollan and Dolan); McCarthy v. City of

Leawood, 257 Kan. 566, 568, 580 (1995) (refusing to

apply Dolan to a traffic impact fee on the ground that

“[t]here is nothing in the opinion . . . which would

apply the same conclusion to Leawood’s conditioning

certain land uses on payment of a fee”); Home Builders

Ass’n of Cent. Ariz. v. City of Scottsdale, 187 Ariz. 479,

480, 486 (1997) (refusing to apply Dolan to a water

resources fee, distinguishing it on the ground that a

fee is a “considerably more benign form of regulation”

than a real property exaction).

Koontz also involved a purely monetary exaction.

The permitting agency refused to issue a development

permit unless Mr. Koontz agreed to finance improvements to government land miles away. 570 U.S. at

15

601-02. The Florida Supreme Court sided with those

courts that limited Nollan and Dolan to demands for

real property. It held the unconstitutional conditions

doctrine inapplicable because the government “did not

condition approval of the permits on Mr. Koontz

dedicating any portion of his interest in real property

in any way to public use.” St. Johns River Water

Mgmt. Dist. v. Koontz, 77 So. 3d 1220, 1231 (Fla.

2011). In short, the Florida Supreme Court held that

Mr. Koontz could not claim the protection of Nollan

and Dolan because the government demanded money,

not real property, in exchange for a permit grant.

This Court granted certiorari to resolve the split

among state high courts over whether Nollan and

Dolan “apply to a land-use exaction that takes the

form of a government demand that a permit applicant

dedicate money, services, labor, or any other type of

personal property to a public use.” Petition for Writ of

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

Dist., No. 11-1447, 2012 WL 1961402, at *i-ii (U.S.

May 30, 2012). It answered yes, holding that Nollan

and Dolan protect land-use permit applicants against

extortionate demands “even when [the] demand is for

money.” Koontz, 570 U.S. at 619.

After Koontz, courts initially acknowledged that a

monetary demand could serve as the predicate taking

to trigger the protections of the unconstitutional

conditions doctrine. Describing Koontz, a unanimous

Utah Supreme Court wrote that “[u]ntil relatively

recently,” this Court applied Nollan and Dolan “only

where the government demanded a real property right

in exchange for a land-use permit.” Alpine Homes,

Inc. v. City of W. Jordan, 424 P.3d 95, 103 (Utah

16

2017). 8 “But in Koontz, the Court examined a fact

pattern in which the government essentially

demanded money in exchange for a land-use permit.”

Ibid. As a result, the court explained that Koontz held

“a demand for money in exchange for a land-use

permit is an unconstitutional condition under the

takings clause unless the government can show an

essential nexus and rough proportionality between

the amount of money requested and the social costs of

the proposed development.” Id. at 104.

But the story did not end there. Seeking to pare

back Nollan and Dolan, permitting authorities began

to argue that Koontz extended their protections only

to demands made in lieu of a required dedication of

real property. The government tried this in Anderson

Creek, defending an ordinance that required “developers to pay one-time water and sewer ‘capacity use’

fees associated with each lot that they wish to

develop” in exchange for the necessary permit

approvals. 876 S.E.2d at 479, 506; see id. at 491-92

(summarizing the government’s in-lieu argument).

But the North Carolina Supreme Court rejected it,

holding that “the ‘monetary exactions’ with which

Koontz was concerned were not limited to ‘in lieu of’

fees and, instead, encompassed a broader range of

governmental demands for the payment of money as

a precondition for the approval of a land-use permit.”

Id. at 496; see also Charter Twp. of Canton v. 44650,

Inc., 12 N.W.3d 56, 75 (Mich. Ct. App. 2023) (“Koontz

did not limit the applicability of the unconstitutionalconditions doctrine to money demands in lieu of

dedication”); Levin v. City & Cnty. of San Francisco,

The court ultimately ordered dismissal of the takings claims

on procedural grounds. Id. at 101.

8

17

71 F. Supp. 3d 1072, 1082-83 (N.D. Cal. 2014)

(applying Nollan and Dolan to a tenant relocation fee

charged in exchange for a permit to remove a unit

from the rental market).

Then came this Court’s decision in Sheetz. Like

many pre-Koontz exactions cases cited above, Sheetz

involved a traffic impact fee. The Court unanimously

reversed the California Court of Appeal’s holding that

Nollan and Dolan do not apply to legislativelyimposed permit conditions, 601 U.S. at 271, explaining that “there is no basis for affording property rights

less protection in the hands of legislators than

administrators.” Id. at 279. But Justice Sotomayor’s

concurrence observed that, in dismissing Mr. Sheetz’s

claim on the pleadings, the California courts had not

determined whether the County’s traffic impact fee

would be a taking if demanded outside the permitting

context—a necessary finding to trigger the

unconstitutional conditions doctrine. Id. at 280-81

(Sotomayor, J., concurring).

That observation caused further confusion, as some

read it to suggest that whether impact fees are subject

to Nollan and Dolan remains an open question.

Relying in part on that reading, the New York Court

of Appeals below diverged from Anderson Creek to

hold that the protections of Nollan and Dolan do not

apply to all monetary exactions, but only to those

imposed in lieu of a required dedication of real

property. See App. 16a-17a (relying on Justice

Sotomayor’s Sheetz concurrence). It read Koontz as a

case where “[t]he unconstitutional conditions doctrine

was invoked to prevent the government from coercing

the landowner into giving up not the money itself, but

instead the easement that the fee was demanded in

lieu of.” App. 21a. With this understanding, it

18

categorically limited Koontz to in-lieu fees. 9 Many

other courts have followed Anderson Creek’s

reasoning. Most prominently, after remand in Sheetz,

El Dorado County for the first time raised the

argument that Koontz applies only to in-lieu fees. 10

The Court of Appeals’ divergence was at least in part due to

its misunderstanding of the facts of Koontz. Koontz did not

involve an in-lieu fee. The Florida courts understood the demand

as a pure monetary exaction. St. Johns River Water Mgmt. Dist.

v. Koontz, 5 So. 3d 8, 12 (Fla. Dist. Ct. App. 2009) (observing that

the condition “did not involve a physical dedication of land but

instead a requirement that Mr. Koontz expend money to improve

land belonging to the District”). Had the exaction been an in-lieu

fee, it would have been subject to heightened scrutiny under

Florida’s long-established exactions doctrine.

See, e.g.,

Hollywood, Inc. v. Broward Cnty., 431 So. 2d 606, 611-12 (Fla.

Dist. Ct. App. 1983). Under those circumstances, the dispute

likely never would have reached the Florida Supreme Court.

Thus, this Court’s discussion of in-lieu fees in Koontz, 570 U.S.

at 612, is best understood not as “limiting the reach” of the

decision but “simply being a response to the Florida Supreme

Court’s conclusion that a governmental demand for money rather

than an interference in tangible property rights did not

constitute a taking.” Anderson Creek, 382 N.C. at 28.

10 The posture of Sheetz is another example of how Justice

Sotomayor’s concurrence triggered confusion. Before this Court’s

decision, the parties and the courts assumed the traffic impact

fee was an exaction that would trigger the unconstitutional

conditions doctrine if it had been imposed administratively.

Sheetz v. Cnty. of El Dorado, 84 Cal. App. 5th 394, 405 (2022) (“A

land use exaction occurs when the government demands real

property or money from a land use permit applicant as a

condition of obtaining a development permit.”); County of El

Dorado Response Br., Sheetz v. Cnty. of El Dorado, No. C093682,

2022 WL 1570886, at *31-39 (Cal. Ct. App. Apr. 14, 2022)

(acknowledging that “development fees” are exactions). That’s

because California precedent had long acknowledged impact fees

triggered Nollan and Dolan. See Ehrlich, 12 Cal. 4th at 874-76;

All. for Responsible Plan. v. Taylor, 63 Cal. App. 5th 1072, 1085,

1087 (2021).

9

19

The California Court of Appeal rejected it, instead

confirming that a government conditioning a building

permit on the payment of a traffic impact fee must

satisfy Nollan and Dolan. Sheetz v. Cnty. of El

Dorado, 335 Cal. Rptr. 3d 316, 331 (Ct. App. 2025)

(opinion on remand subsequently ordered depublished), petition for writ of certiorari pending, No. 25958. 11 Other courts agreed, whether explicitly or by

implication. See, e.g., 225 Northport, LLC v. Vill. of

Northport, No. 24-CV-2967, 2025 WL 2782360

(E.D.N.Y. Sep. 30, 2025) (“as Koontz makes clear,

building permit fees must satisfy Nollan and Dolan”);

Tap House Real Est., LLC v. City of Rochester, No. 22cv-492, 2024 WL 3470824 (D. Minn. Jul. 19, 2024)

(applying Nollan and Dolan to traffic-impact fee

permit condition and denying motion to dismiss).

Underscoring the stark divide that now exists, both

Anderson Creek and the decision below drew spirited

dissents.

The opinions debate whether Koontz

involved an in-lieu fee. Compare App. 40a-41a

(Garcia, J., dissenting), with Anderson Creek, 876

S.E.2d at 507-08 (Earls, J., dissenting). They also

delve into the implications of applying the limitations

of Nollan and Dolan to monetary exactions. See App.

23a (majority opinion) (expressing fear that “every fee

imposed by the government in connection with a landuse permit would constitute a taking and would need

to be ‘properly tailored to pass the Nollan/Dolan test.’”

(quoting App. 44a (Garcia, J., dissenting))); Anderson

Creek, 876 S.E.2d at 507 (Earls, J., dissenting) (calling

11 The court ultimately held the fee satisfied Nollan and Dolan.

See id. at 333. This demonstrates the difference between finding

a monetary exaction subject to Nollan and Dolan and actually

invalidating it as an unconstitutional condition.

20

the application of Nollan and Dolan to monetary

exactions “an unwarranted and unwise expansion of

the scope of the Takings Clause that will engender

frequent litigation and may ultimately diminish the

capacity of municipalities to recoup fees to offset the

costs of maintaining vital public infrastructure”).

Only this Court can resolve this conflict.

Ultimately, in diverging from the consensus and

limiting the reach of Nollan and Dolan, the New York

Court of Appeals decision echoes what the Florida

Supreme Court did in Koontz. The Court should

likewise grant this petition.

II. The Decision Below Conflicts with Multiple

Strands of This Court’s Precedent and

Creates an End Run Around Nollan and

Dolan

In holding that Nollan and Dolan do not apply to a

monetary demand in exchange for a permit, the New

York Court of Appeals misapplied two lines of this

Court’s precedent to create a new categorical defense

to unconstitutional conditions claims predicated on

the Takings Clause. Cf. Arkansas Game & Fish

Comm’n v. United States, 568 U.S. 23, 31-32 (2012)

(admonishing against such creation of new categorical

defenses).

If the majority’s reasoning below

proliferates, these mistakes will undermine the Fifth

Amendment’s vital protection against government

extortion in land-use permitting. The Court of

Appeals’ decision is a road map for permitting

authorities to avoid the constitutional limits on their

power—limits this Court has zealously guarded for

four decades.

21

A. The decision below incorrectly assumed

that a monetary obligation can never be

the object of a takings claim

Key to the Court of Appeals’ holding that a

monetary exaction cannot trigger the unconstitutional

conditions doctrine was the majority’s assumption,

contrary to Koontz, that a monetary obligation can

never be a taking. The majority correctly explained

that a landowner must demonstrate the challenged

permit condition would be a taking on its own to

trigger the doctrine. See App. 17a. But it was wrong

to conclude that a monetary exaction like the Arts

Fund fee can never be the predicate taking.

Outside the exactions context, it is well settled

that, in some circumstances, money can be the

property interest supporting a takings claim. In

Webb’s Fabulous Pharmacies, this Court unanimously

held that Florida could not take the interest from an

interpleader account simply by declaring the principal

to be public property because it was in the state court’s

possession. 449 U.S. at 164. In Brown, too, the Court

recognized that the transfer of interest in an IOLTA

account would be a per se physical taking “akin to the

occupation of a small amount of rooftop space in

Loretto [v. Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982)].” 538 U.S. at 217-18. And in Village

of Norwood v. Baker, the Court found a taking when

the government demanded money to pay the public’s

cost to condemn an owner’s property for new roads,

holding that “the exaction from the owner of private

property of the cost of a public improvement in

substantial excess of the special benefits accruing to

him is, to the extent of such excess, a taking.” 172

U.S. 269, 279 (1898).

22

On the other hand, in Eastern Enterprises v. Apfel,

the Court considered an Act of Congress that imposed

a “severe, disproportionate, and extremely retroactive

burden” on some coal companies to pay retirement

benefits for miners and their dependents. 524 U.S.

498, 538 (1998) (plurality opinion). Four justices

would have held that such a burden effected a taking.

Id. But Justice Kennedy’s controlling opinion held

that even the imposition of a “staggering financial

burden” is not a taking if it “does not operate upon or

alter an identified property interest.” Id. at 540

(Kennedy, J., concurring in the judgment and

dissenting in part). He instead found the Act’s

retroactive liability violated the Due Process Clause,

providing the fifth vote to invalidate it. Id. at 547.

Koontz reconciled these disparate strands. It held

that a permit condition demanding money is different

than a stand-alone monetary obligation because the

permit condition “operate[s] upon . . . an identified

property interest” when it “direct[s] the owner of a

particular piece of property to make a monetary

payment” as a condition of receiving a permit. Koontz,

570 U.S. at 613-14. The Koontz Court viewed the

monetary demand in exchange for a permit as a taking

just like the money from the specific accounts in

Brown and Webb’s, or “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 612-13 (citing

Armstrong, 364 U.S. at 44-49; Louisville Joint Stock

Land Bank, 295 U.S. at 601-02; United States v. Sec.

Indust. Bank, 459 U.S. 70, 77-78 (1982).

In short, “when the government commands the

relinquishment of funds linked to a specific, identifiable property interest such as a bank account or

23

parcel of real property, a ‘per se [takings] approach’ is

the proper mode of analysis under the Court’s

precedent.” Koontz, 570 U.S. at 614 (quoting Brown,

538 U.S. at 235). This is the key characteristic that

connects the dots; the reason why a pure monetary

exaction may be the predicate taking supporting an

unconstitutional conditions claim.

“[U]nlike in

Eastern Enterprises,” a monetary exaction “burden[s]

. . . ownership of a specific piece of land.” Id. at 613.

Unconstitutional conditions scrutiny attaches because

of “the direct link between the government’s demand

and a specific parcel of real property.” Id. at 614. It

is this link that “implicates the central concern of

Nollan and Dolan”—that the government will abuse

its discretion over permitting to extort property from

the permit applicant unrelated to the government’s

legitimate interest in mitigating the impact of the

applicant’s land use. Ibid.

Despite this, the New York Court of Appeals

adopted a categorical rule that a monetary permit

demand can never serve as the predicate taking

unless it operates in lieu of a demand for real

property. The bright line rule allowed the Arts Fund

fee to sidestep Nollan/Dolan scrutiny even though the

intermediate appellate court unanimously found the

fee lacks any connection to a legitimate land-use

interest. App. 56a-57a. And the fee avoided scrutiny

despite the substantial impact it has on the Residents’

ownership of their homes. Put simply, the connection

between the monetary demand and the use and

ownership of the burdened property exists whether

the demand is for money or real property. Both are

subject to the coercive, extortionate demands that the

unconstitutional conditions doctrine protects against.

Nollan, 483 U.S. at 837 (California Coastal Commis-

24

sion’s exaction requirement was an “out-and-out plan

of extortion”) (citation omitted); Koontz, 570 U.S. at

606 (majority opinion) (same); Sheetz, 601 U.S. at 275

(“Our decisions in Nollan and Dolan address this

potential abuse of the permitting process.”).

The Court of Appeals’ failure to recognize these key

principles led it to embrace a categorical rule that

threatens to eviscerate the Fifth Amendment’s

protections for land-use permit applicants and upend

decades of precedent in many jurisdictions holding

fees subject to Nollan and Dolan. The majority below

recognized no practical limit on how much money the

government may demand in exchange for a land-use

permit. 12 But money is property. That it is fungible

does not remove it from the protection of the Takings

Clause. There is no practical difference between this

result and the outcomes the Court sought to prevent

in Nollan, Dolan, and Koontz. 13 This Court’s review

12 The

concurring opinion below gestured towards potential

limits imposed by the Due Process Clause. But as the opinion

itself recognized, prevailing on a due process theory would

require a showing that the fee is “wholly arbitrary.” App. 28a;

see also Koontz, 570 U.S. at 629 n.3 (Kagan, J., dissenting) (“[T]he

Due Process Clause provides an additional backstop against

excessive permitting fees by preventing a government from

conditioning a land-use permit on a monetary requirement that

is ‘basically arbitrary.’” (quoting Eastern Enterprises, 524 U.S. at

557-58 (Breyer, J., dissenting))). This is not a meaningful limit

on the government’s permitting leverage. Very rarely will a court

find that an ordinance is “clearly arbitrary and unreasonable,

having no substantial relation to the public health, safety,

morals, or general welfare.” Vill. of Euclid v. Ambler Realty, 272

U.S. 365, 395 (1926).

13 This doesn’t mean that permit review fees would trigger

Nollan/Dolan scrutiny. Unlike exactions ostensibly designed to

mitigate some impact of the permitted land use, application fees

25

is necessary to ensure the continuing vitality of its

land-use exactions precedent.

B. The decision below incorrectly assumed

that application of the unconstitutional

conditions doctrine depends upon the

owner’s entitlement to the land use

The Court of Appeal's decision also rests on a

fundamental “misunderstanding of how the unconstitutional conditions doctrine operates.” App. 48a

(Garcia, J., dissenting). The majority defends limiting

Nollan and Dolan with an observation that

“Petitioners knowingly assumed a property interest in

JLWQA-restricted spaces.” App. 18a. The crux of this

point is that the Residents are not entitled to

conversion. See also App. 26a (Halligan, J., concurring) (“I am not persuaded that the lack of any

entitlement to conversion . . . resolves the question

before us”). But lack of entitlement does not matter

in the unconstitutional-conditions analysis. This was

true long before this Court applied the doctrine to

land-use permitting in Nollan.

By design, the

doctrine protects those who had no preexisting right

to the permit, license, or benefit they sought from

being coerced into surrendering a constitutional right.

See William W. Van Alstyne, The Demise of the Right-

are user fees calculated to offset the administrative costs of

processing a permit. Under New York law, these fees “must be

. . . reasonably necessary to the accomplishment of the regulatory

program.” Suffolk Cnty. Builders Ass’n, Inc. v. Suffolk Cnty., 46

N.Y.2d 613, 619 (1979). New York City, of course, does not claim

that the six-figure fees demanded in this case were necessary to

defray the cost of administering conversion permits. Nollan and

Dolan apply only to conditions relating to the proposed land use.

26

Privilege Distinction in Constitutional Law, 81 Harv.

L. Rev. 1439, 1445-47 (1968) (collecting cases).

The roots of the unconstitutional conditions

doctrine stretch back more than a century. In the

nineteenth century, it was generally accepted that if

one had no right to a particular benefit, the government could condition receipt of the benefit on anything

it would like. In one famous case, Justice Holmes

wrote that a policeman fired for his political speech

“may have a constitutional right to talk politics, but

he has no constitutional right to be a policeman.”

McAuliffe v. City of New Bedford, 29 N.E. 517, 517

(Mass. 1892). But even then, some began to argue

that “[t]he argument used, that the greater always

includes the less, and, therefore, if the State may

exclude the appellees without any cause, it may

exclude them for a bad cause, is not sound.” Doyle v.

Cont’l Ins. Co., 94 U.S. (4 Otto.) 535, 543-44 (1876)

(Bradley, J., dissenting).

This view eventually won out. Since then, the

Court has applied the unconstitutional conditions

doctrine to protect the exercise of many constitutional

rights. For example, even though individuals have no

right to continued government employment, they

generally cannot be fired for exercising their First

Amendment right to speak on a matter of public

concern. See Connick v. Myers, 461 U.S. 138, 142

(1983) (“For at least 15 years, it has been settled that

a state cannot condition public employment on a basis

that infringes the employee’s constitutionally

protected interest in freedom of expression.”). Even

though nonprofit organizations have no right to

government funding, the government cannot “seek to

leverage funding” it provides to a nonprofit organization “to regulate speech outside the contours of the

27

program itself.” Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, Inc., 570 U.S. 205, 214-15 (2013). And

although there is no federal right to receive public

assistance, this Court has long held that the

government cannot leverage an applicant’s benefits

application by requiring the applicant to give up his

constitutional right to travel. Shapiro v. Thompson,

394 U.S. 618 (1969) (invalidating one-year waiting

period for new residents of a jurisdiction to receive

public assistance); Graham v. Richardson, 403 U.S.

365 (1971) (invalidating state statute requiring

resident aliens to reside in the state for 15 years

before receiving public assistance); Mem’l Hosp. v.

Maricopa Cnty., 415 U.S. 250 (1974) (invalidating

state statute requiring an individual to reside in a

county for a year as a condition on the receipt of

nonemergency medical care at the county’s expense).

Nollan and Dolan are heirs to this tradition. The

exactions cases “‘involve a special application’ of this

doctrine that protects the Fifth Amendment right to

just compensation for property the government takes

when owners apply for land-use permits.” Koontz, 570

U.S. at 604 (quoting Lingle v. Chevron U.S.A. Inc., 544

U.S. 528, 547 (2005)). And just like the other

applications, Nollan, Dolan, Koontz, and Sheetz are

not concerned with whether a permit applicant is

otherwise entitled to the permit. Nor do they care

whether the permit applicant knew about the permitting limitation upon acquisition of the property. See

Palazzolo v. Rhode Island, 533 U.S. 606, 629 (2001)

(explaining that the Nollan Court rejected the

dissenting argument that the owner’s unconstitutional conditions claim should have failed because he

was on notice of the Coastal Commission’s policy

requiring permit applicants to dedicate a lateral

28

access easement). On the contrary, the entire premise

of these cases is that the government can deny the

permit. 14 It is the government’s power to say “no” that

gives it the leverage to impose conditions in the first

place.

Nor is there any support in this Court’s precedent

for the Court of Appeals’ related assumption that the

government may attach unrelated conditions to a

permit on the ground that receipt of the permit adds

substantial value to the applicant’s property. See App.

18a; but see Nollan, 483 U.S. at 837 & n.5 (“While a

ban on shouting fire can be a core exercise of the

State’s police power to protect the public safety, and

can thus meet even our stringent standards for

regulation of speech, adding the unrelated condition

alters the purpose to one which, while it may be

legitimate, is inadequate to sustain the ban.”). On the

contrary, Koontz understood that it is precisely

because “the government often has broad discretion to

deny a permit that is worth far more than property it

would like to take” that “applicants are especially

vulnerable to the type of coercion that the

unconstitutional conditions doctrine prohibits.” 570

U.S. at 604-05.

14 To be sure, “the right to build on one’s own property—even

though its exercise can be subjected to legitimate permitting

requirements—cannot remotely be described as a ‘governmental

benefit.’” Nollan, 483 U.S. at 833 n.2. But the Nollans took title

to the property subject to the Coastal Commission’s permitting

jurisdiction, and this Court assumed the Commission’s power to

deny the permit. Id. at 837. Under the City’s theory, by applying

for a permit the Nollans sought to extend their property rights

rather than exercise their existing rights. Cf. App. 18a-19a. Yet

the unconstitutional conditions doctrine protected them all the

same.

29

Of course, the high value of a land-use permit to

the applicant is also a strong indication that the

permit would confer upon the landowner the ability to

use his property in a way he couldn’t without a permit.

In all four of this Court’s exactions cases, the value of

the permitted activity far exceeded the cost of the

exaction. See Nollan, 483 U.S. at 827-29 (permit

approved for the improvement of a condemned

bungalow into a modern home); Dolan, 512 U.S. at 379

(permit approved to double the size of a hardware

store and expand the parking area); Koontz, 570 U.S.

at 601-02 (seeking a permit to improve a vacant parcel

of land for commercial use); Sheetz, 601 U.S. at 272

(granting a permit to build a family home on a vacant

parcel). Far from removing the urgency, it is because

the value of the permit on offer often exceeds the value

of a coercive and unconstitutional demand that

heightened scrutiny is necessary. Koontz, 570 U.S. at

604-05.

In short, the Court of Appeals’ categorical rule is

inconsistent with the nature of the unconstitutional

conditions doctrine. The conversion permits at the

center of this case are not meaningfully different from

the land-use permits sought in Nollan, Dolan, Koontz,

or Sheetz. If permit applicants had to show a preexisting entitlement to the permit to trigger the

unconstitutional conditions doctrine, the doctrine’s

protections for property owners would amount to

little.

30

III. This Case Is an Excellent Vehicle to Address

a Question of Nationwide Importance

More than a million building permits are issued

each year in the United States. 15 Monetary exactions

like impact fees are “ubiquitous.” See Brief for Amici

Curiae City & Cnty. of San Francisco, et al., Sheetz v.

Cnty. of El Dorado, No. 22-1074, 2023 WL 8869700, at

*8 (U.S. Dec. 19, 2023). Resolution of the question

presented will determine whether permitting authorities seeking these exactions must honor the

protections of Nollan and Dolan against extortionate

demands. This is outcome determinative in many

cases, including this one, where refusal to apply

Nollan and Dolan triggered reversal of a unanimous

Appellate Division ruling.

New York alone saw more than 46,000 building

permits issued in 2024. See supra n.15. Cash-hungry

localities now face only theoretical limits in imposing

extortionate fees. Without the protections of Nollan

and Dolan, little exists to stop them from demanding

more and more—say, rather than $100 per square foot

into an Arts Fund, $250 per square foot into the

general fund, which would amount to nearly

$1 billion. And the New York Court of Appeals has

always been one of the most influential state high

courts nationwide, influencing state and federal

courts alike. See Lawrence M. Friedman et al., State

Supreme Courts: A Century of Style and Citation, 33

Stan. L. Rev. 773, 804-06 (1981) (showing historical

influence); In re Black Diamond Min. Co., LLC, 507

B.R. 209, 217 (E.D. Ky. 2014) (“federal courts often

15 See Nat’l Ass’n of Home Builders, Building Permits by State

and Metro Areas, https://tinyurl.com/562wfmbv (last visited

Apr. 6, 2026).

31

look to the New York Court of Appeals’ influential

opinion in Sage Realty as persuasive authority on the

scope of federal privilege”). The decision below invites

permitting authorities to evade the Fifth Amendment’s protections in the many jurisdictions where the

law is unsettled. Only this Court’s intervention can

settle the law nationwide.

This case presents a clean vehicle to do so. The

contours of New York City’s permitting regime are

clear and undisputed. The case arrives from a final

judgment of the state’s highest court, after which 12

state appellate judges—five of the Appellate Division

and the seven Court of Appeals judges—divided 6-6 on

the question presented. Perhaps most importantly,

resolving the question presented would not require

the Court to delve into fact-intensive questions to

determine whether the Arts Fund fee could satisfy

Nollan and Dolan. Like in Koontz, that work would

be left for the state courts on remand. See St. Johns

River Water Mgmt. Dist. v. Koontz, 183 So. 3d 396

(Fla. Dist. Ct. App. 2014) (Florida Court of Appeals

ruling on remand after Koontz).

Courts across the country have weighed in on the

important question presented, including divided

opinions from the high courts of New York and North

Carolina. The time is ripe for this Court to decide it.

32

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

J ACK L. L ESTER

41 Squaw Road

East Hampton, NY 11937

(631) 604-2228

CHRISTOPHER M. K IESER

Counsel of Record

BRIAN T. H ODGES

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, CA 95814

(916) 419-7111

ckieser@pacificlegal.org

D EBORAH J. L A F ETRA

JONATHAN HOUGHTON

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, VA 22201

(202) 888-6881

Counsel for Petitioners

APRIL 2026

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.

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Petition for Writ of Certiorari — The Coalition for Fairness in SoHo and NoHo, Inc., et al., Petitioners v. City of New York, New York, et al. | Frix