News Release 
November 21, 2023
ALF Argues That There Are No Exceptions To The Fifth Amendment's "Just Compensation" Guarantee For Governmental Takings

Question Presented:

Whether a permit fee is exempt from the "unconstitutional conditions" doctrine simply because the fee is authorized
by legislation

"The California appellate court's analysis turns the constitutional guarantee against uncompensated takings on its head."
Atlantic Legal Foundation
The Supreme Court has granted certiorari in Sheetz v. County of El Dorado, California, No. 22-1074, a takings case that involves a California county’s “Traffic Relief” road improvement program financed, in accordance with county-enacted legislation, by a “monetary exaction” scheme imposed on all applicants for building permits. Petitioner George Sheetz was forced to pay a substantial exaction (i.e., fee) as a condition for obtaining a residential construction permit. The county’s scheme did not take into account the specific traffic burdens, if any, created by Mr. Sheetz’s, or any other particular permit applicant’s, proposed construction project.

ALF has filed an amicus brief supporting Petitioner Sheetz. The brief, authored by nationally prominent takings law expert and ALF Advisory Council member Nancie G. Marzulla, argues that there can be no legislative exceptions to the right to receive just compensation when private property is taken by the government for a public purpose.

Case Background

Under the Supreme Court’s “unconstitutional conditions” doctrine, “the government may not require a person to give up a constitutional right . . . in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property.” Dolan v. City of Tigard, 512 U.S. 374, 385 (1994). In the takings context, the Court held in Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987), that there must be an “essential nexus” “between the ‘legitimate state interest’ and the permit condition.” And under Dolan, 512 U.S. at 391, there must be a “rough proportionality” between the exaction and any burden created by the proposed development.

In an opinion that the California Supreme Court declined to review, the California Court of Appeal held that because the county’s exaction scheme was authorized by legislation, Nollan/Dolan constitutional scrutiny does not apply. According to the Court of Appeal, “requirements of Nollan and Dolan . . . do not extend to development fees that are generally applicable to a broad class of property owners through legislative action . . . as distinguished from a monetary condition imposed on an individual permit application on an ad hoc basis.” 

ALF's Amicus Brief

ALF’s amicus brief argues that the California appellate court’s analysis turns the constitutional guarantee against uncompensated takings on its head. More specifically, the Just Compensation Clause contains no exceptions to the government’s duty to pay just compensation when it takes private property for public use.

The California Court of Appeal's holding is wrong because in the takings context there is no principled, constitutional basis for distinguishing between legislatively required exactions and those that are imposed on an ad hoc (i.e., individualized) basis at an administrative agency’s discretion. As a result, the Nollan/Dolan unconstitutional conditions test applies to the California county’s exaction scheme, which on its face fails to satisfy that test since it in no way considers whether there is an essential nexus or even rough proportionality between a particular exaction imposed for a particular permit.
Media Contact: Larry Ebner | Tel: 202-349-1421
About the Atlantic Legal Foundation

For more than 46 years, the Atlantic Legal Foundation, a national, nonprofit, nonpartisan, public interest law firm, has advocated in the Supreme Court, federal courts of appeals, and state appellate courts for individual liberty, free enterprise, property rights, limited & responsible government, sound science in judicial & regulatory proceedings, and effective education, including parental rights and school choice.
New York Office
500 Mamaroneck Ave., Suite 320
Harrison, New York 10528

Washington, D.C. Office
1701 Pennsylvania Ave., NW, Suite 200
Washington, D.C. 20006

California Office
1527 Stone Canyon Rd.
Los Angeles, CA 90077

Main Number: (914) 834-3322