Sheetz v. El Dorado County US Supreme Court

[Ian Wilson]

Here's a revisit of Nollan.

The Amicus Briefs and other documents can be downloaded here:
https://supreme.justia.com/cases/federa ... se-title-3


Here's some fun reading for the evening.

SHEETZ v. COUNTY OF EL DORADO.pdf

[Mike Mueller]

So if I understand this correctly, this will go back to the lower courts to actually address Sheetz's "nuanced arguments" and we might see something more about his in a few years?

Mikey Mueller, PLS 9076
Sonoma County

[hellsangle]

No "word salads" from Justice Sotomayor - short and sweet and to the point!

[LS_8750]

I think we are looking at a lot of development projects unlocking in the near future.

[jamesh1467]

I have just read the opinion and not the underlying documents, but my understanding of what happened here:

• A guy challenged impact fees as a taking on his parcel under the 5th amendment as is anyone’s right. (he paid the fees to get the permit and then challenged that he was required to pay them)

• The Supreme Court has already weighed in on this subject with the Nollan and Dolan tests decades ago for how to decide if something is a “taking” under the 5th that respects this guy's constitutional rights. It effectively says, "evaluate the evidence in this way and decide as a court on the facts in this method to see if its a taking".

• Both at trial and on appeal, the California Appellate System decided to bypass the established Nollan and Dolan tests and create their own new legal standard where they don’t even need to review the facts or ask the question if impact fees are a “taking” under the 5th Amendment because the fees came from “legislature.” Relying on some precedent from the California Supreme Court. But effectively bypassing this guy’s constitutional rights for no reason.

• It just apparently was automatically not a "taking" in the California Court system's, because "legislature" made the fees, not administrative staff and it was generalized to multiple parcels? Not just one? So any impact fees you pay at building permit could never be a "taking," ever. Your 5th amendment right apparently didn't apply to the subject in the eyes of the California Supreme Court

• This guy rightfully appealed to the Federal Supreme Court once our State Supreme Court didn’t agree to hear the case. (they effectively made the precedent and by not hearing the case they implied it was settled for them)

• The Supreme Court said that the El Dorado County Board of Supervisors cannot violate this guy’s constitutional rights under the 5th Amendment just because they are “legislature.” The court of appeals messed up in not even judging the case based on the Nollan and Dolan tests.

• It could have been a taking. It could not have been a taking, the Supreme Court didn’t say. They just basically said: use the Nollan and Dolan tests to ensure this guy’s constitutional rights are not violated.

“State courts have reached different conclusions on the question whether the Takings Clause recognizes a distinction between legislative and administrative conditions on land-use permits.[3] We granted certiorari to resolve the split.” They are being super nice here as though there is potentially some massive difference on whether or not it's okay to violate someone’s constitutional rights just because it went to an elected official instead of just someone who is an appointed government employee. Everyone knows those fees are basically made by admin/consultants and just consented to by the legislature anyway. Unless the legislature is really actively involved in day-to-day operations, they just greenlight everything the admin/consultants did. There's really some huge difference there? This whole line of precedent the CA Appellate system made seemed nuts. The takings clause is from our original bill of rights over 200 years ago. How could the framers have intended for there to be a difference between the legislature and administrative agencies when administrative agencies only popped into existence about 50 years ago? The difference between agencies and legislature wasn't even around for the framers to think there could be a difference when they made the takings clause. Also as Barrett points out, even our framers made the takings clause with the idea that "legislature" were the ones that the people needed protection against back during the revolution. There really was no basis for this line of precedent at all.

Can you imagine what kind of crazy fees elected officials could start tacking on if this was actually how our government worked? Some unopposed council members in a town of 5000 people gets a fee approved for "jaywalking enforcement" or something stupid like that in one very small section of the town confined to like 5 houses just to get back at their neighbors they didn't like with no legal recourse available at all for that neighbor. The neighbor would just automatically lose in court and have to pay the fee because "legislature" didn't like them. The court couldn't even hear their case. Let's not even get into big cities..... Want to see a dedicated land use tax for any new building permits in rich areas but not in poor areas of the same town... that was where this was going.....With no real discretion or oversight requirements. Just blanket dictatorial authority for legislature to impose the fee however and wherever they wanted to be within their own town/city. Barrett has another example in the opinion too.

Again, I don't know what the California appellate system was doing. 9-0 and came out early in the SCOTUS season with all the other 9-0 opinions. There’s no real debate here. The California Appellate system was wrong. Any other SCOTUS bench would have likely done the same thing. El Dorado County even conceded that they should lose the case in oral arguments. Part B of the opinion is basically an “I can’t believe you did this” section from Barrett/her clerks that even the Liberal justices except Sotomayor signed onto without refuting it in their own opinions. The California Court of Appeal declined to assess the County’s traffic impact fee for an essential nexus and rough proportionality based on its view that the Nollan/Dolan test does not apply to “legislatively prescribed monetary fees.”.... That was error. Nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules......The Constitution’s text does not limit the Takings Clause to a particular branch of government.....It does not single out legislative acts for special treatment.. Effectively/summarized how I understand it: "What are you doing? Don't you know how the constitution works? Why am I having to teach it to you California?" Technically, Sotomayor tried to say there was still potentially a threshold where the Nollan and Dolan tests wouldn't need to apply, and you don't just need to blankly use the Nollan and Dolan tests for every situation, but she was the lone ranger and she still joined the opinion and didn't dissent.

For the most part, this seems like a technical cleanup to ensure our government and constitutional rights stay intact. If the precedent was allowed to be held that “legislature” could bypass someone’s 5th Amendment right, it would almost certainly be abused. Also, there's a factor here about the takings clause. Its basically one line in the constitution with higher authority than everything else, so it can be vastly misinterpreted unless SCOTUS speaks on it. They basically spoke here to say: "Don't misinterpret our previous decisions. Use the Nollan and Dolan tests"

For any of you who are against this... You can't just say, "I want it my way, and I don't care how I get it." You never know when states flip from blue to red, and if that happens, do you want people to start having the right to impose certain social ideas on your city and county just because they are "legislature"? Because that's where it will go next. Very smart people will take this idea of bypassing everyone's 5th Amendment rights, and they will find a way twist it out of the land planning frying pan where you think it doesn't matter and into mainstream politics. That's probably why SCOTUS granted the cert, so it didn't get legs and became a bigger problem to be used as precedent in other areas of law and get so mixed in other areas of precedent that the SCOTUS would potentially lose the ability to correct it later. Both sides have very smart people who are a little bit radical, and they will abuse anything they can to get their way. (Trust me, both sides do it, one side is not "better". They both twist the law and will use loopholes like this to get what they want) We all have rights, and we all have to respect everyone else's rights. Hence, 9-0.

I am still amazed at what nutty thing some attorneys can get away with and how long they can get away with it. Or at least how high up it has to go before someone calls them out on it........lets not pretend 23K is a big impact fee in California, but still. There is a right and wrong way to do things. SCOTUS takes 80 cases a year and denies thousands? They don't take a lot of things that will come out 9-0. They take the tough questions, not the easy questions like these. Their time could have been spent with tougher questions than this one.

Every SCOTUS opinion typically has trickle down effects though, so I guess we will wait and see what they are or what I was missing.





Will this change development? Maybe. Theoretically, this would just keep the status quo of everyone’s constitutional rights and there should be no changes. But something tells me local governments in California were following this “legislature” idea bypassing everyone’s constitutional rights with some of their policies. The court's didn't come up with this all on their own. Attorneys can all play their games with this and I am sure some people are getting some court cases ready to go. The problem is that it will likely take more litigation to develop by forcing the Nollan and Dolan tests, not less. Litigation almost always slows down development, not speeds it up. (This was a problem I saw in the northeast, almost every major development project was run by an attorney, and very little got done compared to what we get done here)

I have read articles about this case saying "Some local governments will avoid imposing impact fees at all, to avoid litigation costs...Other localities will hire staff or consultants to make individualized determinations of impact fees, thus increasing the cost in money and time of development approvals" I agree with this possibility and this would be a bad thing. This case does have the potential to cause cities and countries to slow down development because they are scared of litigation now on their impact fees. I can see (and have already seen) that every development is required to do an individual engineering study for each fee on their development and how it ties into each city's master plans where the fees were derived from. Making the development applicant's own engineers prove that their impact fee is "reasonable and proportional". Yes it puts you in the drivers seat to do that, but its just more work that slows down the process even more and most firms don't have the engineering capacity to redo city's master plans every time a new development pops up.

One way I have seen it done is where the city forces the developer to hire the city's own consultant to do a study and then that study was just absolutely insanely costly and unreasonable for the infrastructure requirements. I had to spend weeks of meetings and pages of reports refuting that engineer's claims to save the client about $500,000 for infrastructure on a little commerical parcel that would was almost guaranteed never to be used. As in, I had rock-solid evidence; I was literally almost copying the same commercial development design as the adjacent parcel to the point the next-door engineer could plausibly have justification that I was copying his design if it wasn't on an adjacent parcel. None of the city's consultants' decisions came with calculations to justify the issues. None of them came with justification in city standards. (for engineers, I took the rational method at a 1.0 C value and still came up with a value 33% less than this guy's number, again, he wouldn't show me his work) It was a totally crazy and potentially fraudulent engineering analysis, and we still got stuck dealing with it for months until we were able to make it go away. All the while, our developer paid both us and the city's consultant time and materials because it was an added item while we disputed this guy's insane claims about our design. I am pretty sure it was just an attempt to kill the project.

Mandated individual studies for each individual fee on each individual development are 100% not the solution and will almost certainly lead to more litigation while slowing down development and housing. I am guessing, or fearful, that is what most people will think is the solution here. At best, they should only be required as an appeal process if an individual wants to challenge the impact fee calculation. They shouldn't be mandated.

We still need impact fees. I know they have a good purpose... whether they are "reasonable and proportional" on an individual basis is debatable; whether they are used without corruption on an individual basis is debatable, but as a whole, they are needed. Cities and counties will just come up with something else to get the revenue stream that impact fees take away if you strike down the impact fees. It will probably be worse and less transparent than it is now with Impact Fees.

If anyone wants to give good ideas to the CA legislature, ideally, our legislature would learn from this case and set out a standardized framework for all cities to hold to with their impact fees. This would be a standardized process/framework that would allow cities/counties to respect the Nolan and Dolan tests to create impact fees without fear of individual litigation inside this framework. So if these cities and towns followed the framework, any legal challenge would actually be on the framework itself that was provided by the state legislature, and smaller cities and towns wouldn't really need to worry so much because the state and the big cities and towns would realize that if the framework was pierced, their impact fees would come under scrutiny too so they would come to the aid of small towns. Also, on the development side....developers will have the ability to give input to the framework and make legal challenges on the framework that would lower costs of development across the entire state. Its not 100% our area of work for me to know it would truly be the solution without causing other problems, but that's how I would try to solve the problem. The planning associations could do this as guidelines and distribute it out to planners. But it would be better as a state framework that could build up case law behind it to give everyone a peace of mind. (yes, this does sound like another CEQA, but CEQA has its advantages, even though it has its problems, too)




These kinds of cases are a waste of time. They are everyone's right to take them to court, but what did this case really accomplish? This guy's rights got violated by the court's through the litigation process not the impact fees themselves. I am guessing he's going to lose on remand. 23k seems pretty middle of the road compared to everywhere else. Or they won't even try to take it back to court because the whole point of this case was to get the crazy CA precedent line shot down by an "activist" attorney group, and the whole point was to just get SCOTUS to fix the issues with the CA Appellate system. I didn't read into it enough to figure out if that's the case here. But it would be much better if everyone just understood how and why the impact fees were created through some kind of open and transparent process. A lot of times, these fees are justified; you added a new home on your SB9 lot, so you need to pay 1/10th of a signal upgrade 2 blocks away that will be required to go in after 9 other parcels do SB9 permits or remodel because you all will drive more on this street; that sort of thing. That's what we do in those infrastructure master plans/rate studies anyway. We just don't ever include that kind of transparency in the final drafts or you have to really dive into the studies and know what you are looking for to find it.

While I do think this was the right thing to do by SCOTUS, I can see how it could become a hindrance to development in the long term out of fear of litigation and not helpful to development proceedings long term. I am guessing that why this case came from a small-time land owner for 23k and not a big-time developer in a major city for millions in fees. The smart developers didn't want to create more bureaucratic hoops when you can just pay the fees right now and be done with it. The goal is and always will be to get projects finished as fast as possible. The fees typically get passed on to the consumer anyway in development cost models. They are built into the budget. As long as they aren't insane compared to the cost of the development, these fees typically just get paid without much fight. (developers always complain, and they can fight their own battles about fees with their own lobbyists, but they almost always end up paying) Again, that's probably why a case like this had to come from an actual consumer and not a developer. Because a guy like this is one of the few people that is actually affected by the cost of the impact fees. Most people don't even realize they are paying them when they buy a new house.

Long term, I don't know if this case was super helpful to consumers in California. It was absolutely the right decision by SCOTUS, and the appellate system was way out of line. But I think it does the housing problem and consumers in California a disservice in the long term because big Supreme Court decisions scare people, and they can respond irrationally. This case was a win for attorneys who will get more business from it. I don't think it was really a win for anyone else. I still blame the California appellate system for all that, though. They are supposed to know better. They could have remanded the case just like SCOTUS did. They chose to violate this guy's constitutional rights instead and forced SCOTUS to make a national statement.

If you all wanted proof that every person in every profession and every level of "years of experience" makes things up as they go, this is pretty good evidence that that the kinds of things we are talking about over in the standards discussion happens everywhere and in every profession. Its not specific to surveyors.


I don't really know if this is the CLSA's place to get involved as its more land planning and not a whole lot about surveying. But I haven't seen a lot of opinions out there about this. We are also the only professionals that are specifically enabled to do land planning in California and this kind of discussion isn't the worst thing to have on the forum:)