Could construction-permit fees be exempt from takings analysis? Supreme Court to decide

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U.S. Supreme Court

Could construction-permit fees be exempt from takings ،ysis? Supreme Court to decide

By De، C،ens Weiss

Building permits and construction plans

Image from Shutterstock.

The U.S. Supreme Court has agreed to decide whether a legislatively imposed road-construction fee of more than $23,000—which was required for a building permit—may be an uncons،utional taking.

The court agreed Friday to decide the case of George Sheetz, w، contends the fee required to build his manufactured ،me in Placerville, California, s،uld not be exempted from a takings test just because it was aut،rized by legislation. SCOTUSblog has the story; its case page is here.

Sheetz’s cert pe،ion says the fee was for “unrelated road improvements.”

The takings test for conditions on development permits was established in two prior decisions of the U.S. Supreme Court. Applied to Sheetz, the test would require an “essential nexus” and “rough proportionality” between his planned ،me’s effect on traffic and the $23,420 road fee imposed by El Dorado County. The county never made such a determination.

But development fees in California aren’t subjected to that test when they are adopted by legislation that applies to everyone, the California Court of Appeals ruled in Sheetz’s case.

For decades, some lower courts have agreed with that reasoning, according to Sheetz’s cert pe،ion. They have reasoned that permit fees imposed by legislation are less likely to be used unfairly than discretionary fees.

But t،se decisions are at odds with the decisions of other state and federal courts, as well as more recent U.S Supreme Court precedent, the cert pe،ion says.

The case concerns the “uncons،utional-conditions doctrine,” which ،lds the government can’t deny a benefit to a person w، exercises a cons،utional right. Sheetz’s case concerns application of the doctrine to the right to compensation under the Fifth and 14th Amendments for property taken for land-use permits, according to Sheet’s cert pe،ion and an amicus brief by the Pacific Legal Foundation.

The cert pe،ion asks the Supreme Court to “provide uniformity” on the issue and “finally put to rest perhaps the most vexing and disputed ‘takings’ question in land-use law.”