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America is confronting a housing crisis. As James Burling explains in his recently-released book, Nowhere to Live: The Hidden Story of America’s Housing Crisis, “we’re simply not creating enough housing. And at the core of our inability to create enough housing, we have government policy after government policy that prevents needed housing from being built.” The Supreme Court recently dealt with one pernicious housing policy—the extraction of land-development impact fees from property owners in exchange for building permits—in Sheetz v. County of El Dorado, California.
In Sheetz, the Supreme Court unanimously held that the government can’t avoid court scrutiny of land-use exaction fees (as well as other types of exactions), regardless of whether the exaction is imposed by an executive (or administrative) government body or a legislative body. The county required George Sheetz to pay a $23,420 traffic-impact permit fee before he was allowed to build a small, prefabricated home on a residential lot. The Supreme Court, in Nollan v. California Coastal Commission and Dolan v. City of Tigard, had previously held that land-use exactions must be both sufficiently related to the purpose for which the exactions are imposed and roughly-proportional to the property-development’s impact on the community. Mr. Sheetz sued the county, arguing that such a high exaction was not sufficiently related or proportional to any possible traffic burden imposed by building his modest home.
But El Dorado County argued its $23,420 permit fee—calculated using a fee schedule designed to raise revenue needed to offset the increased traffic resulting from the property development—was exempt from Nollan-Dolan scrutiny because the exaction was imposed through the legislative process by the county commission, instead of by an executive or administrative body. The Supreme Court unanimously held, “[n]othing in the constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules.”
Sheetz follows the trail blazed by Nollan, Dolan, and Koontz v. St. John’s River Water Management District, where the Court ruled that a Florida land-use agency’s exaction violated the Takings Clause of the Constitution. The exaction in Koontz required a landowner to pay to restore government-owned wetlands located miles away from his property in order for him to obtain a permit to develop his property. Each case has presented a new type of creatively-coercive land-use restriction that unconstitutionally violated private property rights.
The Supreme Court’s decision in Sheetz calls for further exploration of how governments continue to infringe on property rights through exactions, zoning, and other land-use restrictions, and what effect this has on housing availability and affordability. To that end, Pacific Legal Foundation invites scholars and litigators to submit proposals to participate in a scholarly research roundtable exploring these issues. Proposals are welcome that address land-use exactions, zoning, the unconstitutional conditions doctrine, and other housing and land-use issues from legal, economic, political, historical, and related angles, including empirical approaches.
For more information, check out the call for papers.
