On June 2, 2023, Mountain States Legal Foundation filed an amicus curiae brief along with the Texas Public Policy Foundation in support of George Sheetz in his legal battle against the County of El Dorado.
In the US Constitution, the Fifth Amendment has a provision called the Takings Clause, which prohibits governments from taking private property for public use from citizens without just compensation. Many people are familiar with the concept of “eminent domain,” where the government can require you to sell your property at an appropriate value so they can use the property for things such as public highways. If there is a public use for land, the public must pay private citizens a fair value.
However, the Takings Clause is much more than that. This important part of our supreme law forbids government entities—like a county in California—from shunting the costs of some expensive government project onto specific and unwilling individuals.
Normally, when a government wants to finance a project, it has to raise taxes or incur debt. But many local governments have craftily devised ways to raise money without such politically undesirable solutions. What they do is force “exactions” onto prospective land developers—such as George—as a condition of receiving a required government building permit. As an example, if a company wants to construct an office building on the west side of town, the city might force an exaction and require they pay to also construct a playground on the east side of town. In any other context, we’d call this kind of practice extortion.
The Supreme Court thought it put an end to this practice thirty years ago when it held that any such exaction must be significantly related to off-setting the harm that construction actually caused. That is, if a new parking garage is paved over a grassy lot, the owner of garage must pay for the expansion of nearby stormwater runoff infrastructure, as the now-missing soil can no longer absorb the rain.
That would be sensible, but local governments do what they do best and have spent the last three decades working around and exploiting a perceived loophole in the Supreme Court’s decisions. They argue the Supreme Court only banned the practice of exaction when it was an administrative agency violating people’s rights, not when it’s done by a city council or county commission.
George Sheetz is dealing with that flawed argument today. He wants to build a single-family residence on his property in Placerville, California. The County of El Dorado, however, attempted to charge him a whopping $23,420 under the pretext of a “traffic impact mitigation fee.” Supposedly, his new home with his one car would so dramatically affect traffic the one or two times per day he leaves the house that the county thought it appropriate to charge him over twenty grand for it.
The federal district court and the Ninth Circuit of Appeals have thus far let the fee stand, but now George has brought his case all the way to the Supreme Court so that the justices can finally finish the job they started more than thirty years ago.
Mountain States joined our allies at the Texas Public Policy Foundation in writing an amicus curiae on George’s behalf. It is time to end exactions in all its forms and across every level and office of government. We argued in our brief that the Takings Clause is concerned with the protection of property rights from all branches of government equally. Helping George fight this case is a part of our larger efforts to protect property rights for all Americans.
