Yesterday, the Supreme Courtroom heard oral argument in Sheetz v. County of El Dorado, an necessary Takings Clause property rights case. When the Supreme Courtroom determined to take the case, most observers (myself included) thought the primary problem can be whether or not there’s a “legislative exception” to takings legal responsibility in at the least some conditions the place the Fifth Modification in any other case requires the federal government to pay “just compensation.” In Nollan v. California Coastal Fee, Dolan v. Metropolis of Tigard, and different instances, the Supreme Courtroom beforehand dominated that state and native governments typically violate the Takings Clause once they impose exactions as a situation of letting property homeowners develop their land. Some decrease courts—together with the California Courtroom of Appeals on this case—have held there isn’t a Takings Clause legal responsibility for land-use exactions in instances the place the requirement was imposed by laws, slightly than by government officers or regulatory companies.
In Sheetz, a property proprietor had been barred by the Nation from constructing a single-family dwelling on his property until he first payed at $23,420 “traffic mitigation” price. The official query introduced by the case is that this:
Whether or not a building-permit exaction is exempt from the unconstitutional-conditions doctrine as utilized in Nollan v. California Coastal Fee and Dolan v. Metropolis of Tigard, Oregon just because it’s licensed by laws.
If yesterday’s oral argument is any indication, the Supreme Courtroom will not have any bother concluding the reply is “no.” All or almost the entire justices appear to agree there isn’t a legislative exception. Certainly, even counsel for the County of El Dorado agreed.
In reply to a query by Justice Thomas, she said that the reply to the query of whether or not a allow situation qualifies as a taking can’t be answered “by looking
at whether there is some sort of legislation.” Chief Justice John Roberts instantly famous that her “answer to the question presented is, I think, the same as the Petitioner [the property owner].”
Justice Neil Gorsuch later mentioned he “thought we had taken the case address [the] question of whether Nollan and Dolan simply [do not] apply to legislative enactments of any kind,” however oral argument revealed there’s “radical agreement” on that problem. Gorsuch is a conservative justice and powerful advocate of constitutional property rights. However liberal Justice Elena Kagan equally said there “there is radical agreement…. that you don’t get a pass from unconstitutional conditions analysis just because you’ve passed generally applicable legislation. And that’s, of course, true in unconstitutional conditions analysis generally, and so too it’s true of unconstitutional conditions analysis in the property area.”
With such unaccustomed consensus between the justices and the events to the case, I feel it overwhelmingly possible the Courtroom will rule there isn’t a such factor as a “legislative exception” to takings legal responsibility. The justices could even be unanimous on that problem (although I’m not completely positive Justice Sotomayor will agree, so they could not). For causes summarized right here, I feel this resounding rejection of the legislative exception principle would be the proper end result.
That, nonetheless, nonetheless leaves the tough query of what sorts of regulatory charges qualify as takings, and which don’t. Over the course of the oral argument, the justices struggled with this problem. It is exhausting to inform what they are going to say in the event that they attempt to resolve it, and the way broad the ensuing ruling will likely be.
Numerous questions targeted on the problem of whether or not tolls and person charges qualify as takings if the property proprietor prevails. I feel the reply is “no,” as a result of there’s a essential distinction between the federal government charging a price for the usage of public property (akin to a freeway), and charging a price in trade for letting the proprietor use his or her personal property, as on this case, the place Sheetz should pay a big sum simply to have the ability to construct a home on his personal land. Some justices additionally raised the perennial problem of methods to distinguish takings from property taxes.
The Courtroom may keep away from these issues completely by limiting its holding to the legislative exception problem (which, in any case, was the main target of the official query introduced), and remanding the remainder to the decrease courts. Gorsuch and Thomas appeared to wish to just do that. However I do not know if there are three different justices who will go together with that strategy. If not, it is exhausting to foretell how a lot additional the Courtroom will go together with its holding and what it can say.
For extra evaluation of the Sheetz oral argument, try posts by Robert Thomas at Inverse Condemnation, and Tim Mulvaney at PropertyProfblog. Mulvaney has useful extra particulars on what the Courtroom would possibly do in the event that they resolve to transcend merely rejecting the legislative exception principle.
NOTE: The property proprietor is represented by the Pacific Authorized Basis, which can be my spouse’s employer. Nevertheless, she will not be a part of the litigation crew engaged on the case.