Eminent Domain Report

We’ve been closely watching the Sheetz v. County of El Dorado case, which has worked its way up through the California trial and appellate courts all the way to the U.S. Supreme Court. For a quick refresher, the case concerns whether legislatively enacted development impact fees (such as fees for building permits, etc.) are subject to the rough proportionality and nexus requirements (i.e., can a generally enacted permit fee be the subject of an unconstitutional taking).

Oral arguments took place yesterday. If you’re interested in a summary of how those went, I’d suggest taking a look at Robert Thomas’ inverse condemnation blog post, which provides an excellent summary – and provides links to the transcript and audio. One interesting take-away from Robert’s summary is that there appears to be an agreement that there’s no “free pass” from the Nollan / Dolan unconstitutional conditions analysis just because a government agency has passed generally applicable legislation. If there’s no disagreement on that concept, does it end the case? But there also appears to be a potential dispute about whether a different standard (something other than nexus / proportionality) should apply to broad, legislative impact fees. 

The Supreme Court’s decision will be one we’ll continue to monitor closely, as it could have widespread implications to government agencies in California if they need to change the way impact and permit fees are calculated across the board. We’d expect a decision in the next few months, so stay tuned.