In poker there’s a move called “Buying the pot.” This is when one person makes a very large bet in an attempt to discourage others from continuing the hand. But what if we’re not talking poker? What if we’re talking permit fees for the use of your own land? That is exactly what George Sheetz sued the County of El Dorado California for.
How many of you have built a house or other building? Or maybe you watch those home building or home improvement programs on TV. If either is true, you’re probably familiar with the idea of building permits. While I have many issues with the way these permits are frequently used, the case of Sheetz v. County of El Dorado, California, points to the use of excessive fees to control how you use your land.
Background
The question this case brings to the Supreme Court revolves around that Takings Clause of the Fifth Amendment.
As a condition of receiving a residential building permit, petitioner George Sheetz was required by the County of El Dorado to pay a $23,420 traffic impact fee. The fee was part of a “General Plan” enacted by the County’s Board of Supervisors to address increasing demand for public services spurred by new development. The fee amount was not based on the costs of traffic impacts specifically attributable to Sheetz’s particular project, but rather was assessed according to a rate schedule that took into account the type of development and its location within the County. Sheetz paid the fee under protest and obtained the permit. He later sought relief in state court, claiming that conditioning the building permit on the payment of a traffic impact fee constituted an unlawful “exaction” of money in violation of the Takings Clause. In Sheetz’s view, the Court’s decisions in Nollan v. California Coastal Comm’n, 483 U. S. 825, and Dolan v. City of Tigard, 512 U. S. 374, required the County to make an individualized determination that the fee imposed on him was necessary to offset traffic congestion attributable to his project. The courts below ruled against Sheetz based on their view that Nollan and Dolan apply only to permit conditions imposed on an ad hoc basis by administrators, not to a fee like this one imposed on a class of property owners by Board-enacted legislation. Sheetz v. County Of El Dorado, California
So we start with two interesting questions to consider. Shouldn’t a “traffic impact fee” be based on the impact to traffic? Or does an exorbitant fee amount to a taking under the Fifth Amendment? Mr. Sheetz claimed before the court that it was not the fee that was the problem, but how the county determined what that fee should be. This was not based on the law, but on previous opinions of the court. Previous courts held that the Supreme Court precedent cited did not apply. This court did not agree.
Held: The Takings Clause does not distinguish between legislative and administrative land-use permit conditions. Sheetz v. County Of El Dorado, California
Precedent Above Law
Before we get into the details of the case, I once again found a very disturbing fact about this case. The question presented to the court was not based on the Constitution or United States law, but on court precedent. This means that, once again, courts are making decisions not based on law, but based on their predecessors opinions. This shows that we no longer have courts of law, but courts of precedent. Which means we are no longer a nation of laws, but of opinions, since any judge can come to any decision he or she wants, based solely on their opinion. It also means we are no longer a constitutional republic, because people believe laws can be “overturned” by unelected judges who are rarely held accountable for their bad behavior on the bench.
The Takings Clause
Let’s look at the Takings Clause Sheetz claims was violated, and see if it applies.
…nor shall private property be taken for public use, without just compensation… U.S. Constitution, Amendment V
Is charging a fee to obtain permission to build, taking private property for public use? In general I would say no, but this case is unique. The purpose of this fee was “to address increasing demand for public services spurred by new development,” which would be a public use. However, the Takings Clause only allows one remedy: Just compensation. When the property being taken is a person’s money, what compensation can be just? The only one I can think of is the return of the fee, which doesn’t make much sense.
Some may argue that, since taxes will be collected on the new residence, which could be used to not only maintain but update infrastructure, an additional fee is unwarranted. Still, that would not be a taking under the Fifth Amendment.
The court held that the Takings Clause “does not distinguish between legislative and administrative land-use permit conditions.” To me it seems quite obvious that it doesn’t deal with land-use permitting at all, since it is not a question of taking land for public use, but exercising control over that land. So are there any protections against abusive permitting fees in the Constitution? Yes.
Due Process Clauses
Just because the traffic impact fee was not only exorbitant, but used for more than just traffic impact, does’t mean Mr. Sheetz’s constitutionally protected rights were protected. As with many Takings Clause cases, what we really have here is a violation of the Due process clauses.
No person … shall be deprived of life, liberty, or property, without due process of law; U.S. Constitution, Amendment V
The most obvious deprivation Mr. Sheetz encountered was the deprivation of his property, namely his money, but that’s not all. By requiring that Mr. Sheetz receive a permit to build on his own land, he was denied the use and benefit of that property. Before we get to the question of due process, there’s another clause we have to deal with, this time in the Fourteenth Amendment.
nor shall any State deprive any person of life, liberty, or property, without due process of law; U.S. Constitution, Amendment XIV
Since the County of El Dorado is a subdivision of the State of California, they too are subject to the Fourteenth Amendment. Which leads to the question, when the County Board of Supervisors enacted their “General Plan,” which included this fee structure, did they do so with due process of law?
due process: An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual. Due Process: The Free Legal Dictionary
Is requiring a permit to build on your own property a governmental activity designed to safeguard the rights of an individual? Possibly. If the requirements for a permit are to ensure the safety and rights of others, then yes, because their individual rights matter as well. Does requiring a fee for the impact your building will have on neighborhood traffic protect the rights of the individual? Again, possibly. For example, if you are building a single residence, the impact on traffic should be minimal. If, however, you are building a development with multiple homes, that traffic impact would be larger, and may require the county to build or upgrade roads to support the new traffic. Does it protect your rights to be required to pay a fee not based on the impact your project would actually have on traffic, but based on some rate schedule cooked up by the county? I don’t think so.
Court Opinion
While the question before the court was the appeal of lower court decisions that the precedent cited didn’t apply because of how the fee was imposed, Justice Barrett wrote in her decision:
The Court’s decisions in Nollan and Dolan address the potential abuse of the permitting process by setting out a two-part test modeled on the unconstitutional conditions doctrine. … First, permit conditions must have an “essential nexus” to the government’s land-use interest, ensuring that the government is acting to further its stated purpose, not leveraging its permitting monopoly to exact private property without paying for it. … Sheetz v. County Of El Dorado, California
First, the condition for issuing a permit must have an “essential nexus” to government’s land use interest? While I’m not sure about other court precedents, by limiting permitting power to government’s interest in land use, that should extend no further than the impact on both public and neighboring property.
But there’s more.
… Second, permit conditions must have “rough proportionality” to the development’s impact on the land-use interest and may not require a landowner to give up (or pay) more than is necessary to mitigate harms resulting from new development. Sheetz v. County Of El Dorado, California
Second, these permit conditions, including the fees they charge, must be roughly proportional to the impact on the land-use. Meaning, in this case, the actual traffic impact of Mr. Sheetz’s building project.
While the court pointed out these limitations on the permitting process, the justices had to deal with the actual question presented to them.
As the parties now agree, conditions on building permits are not exempt from scrutiny under Nollan and Dolan just because a legislative body imposed them. Whether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development is an issue for the state courts to consider in the first instance, as are issues concerning whether the parties’ other arguments are preserved and how those arguments bear on Sheetz’s legal challenge. Sheetz v. County Of El Dorado, California
Yes, El Dorado County’s requirements for building permits can be reviewed under Nollan and Dolan, but the question of the specificity of those conditions are an issue for state courts, not federal. For this reason the court vacated and remanded the decision to back to the California Court of Appeals for further consideration.
Conclusion
So why did I decide to review this case? First, it brings to light something I’ve been seeing more and more of at the county level: The use of the permitting process as a means to dictating to people what they can do with their land. As I’ve stated before, using permitting to help insure that building projects do not deprive others of their rights is justifiable. However, the permitting regulations, along with their zoning and building codes, have become more about controlling what people do with their land than protecting the actual rights of others. This is one of the reasons it’s so important to be focused on what your local governments are doing; they are more likely to infringe on your rights than the federal government. Whether it’s excessive fees or just onerous regulations that attempt to dictate to you what to do with your property because of what someone else thinks, these deprivations of property violate the Constitution of the United States, and almost certainly the constitution of your state as well.
The fact that attorneys focus on the Takings Clause rather than the Due Process Clause not only show the failures of our legal education system, but why it’s so important that you know the Constitution and are prepare to defend and assert your rights for yourself. Because there is no guarantee that your attorney, much less the courts, actually knows what the Constitution says.
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