Supreme Court Rules there is no “Legislative Exception” to the Takings Clause
In Sheetz v. County of El Dorado, decided today, the Supreme Court unanimously ruled that there is no “legislative exception” to the Takings Clause. In previous cases such as Nollan v. California Coastal Commission and Dolan v. City of Tigard, the Court ruled that state and local governments sometimes violate the Takings Clause when they impose “exactions” as a condition of allowing property owners to develop their land. Some state courts—including the California Court of Appeal in this case—have held there is no Takings Clause liability for land-use exactions in cases where the requirement was imposed by legislation instead of by regulatory agencies. In this instance, a landowner had been barred by El Dorado County from building a new home on his property unless he first paid a $23,420 “traffic impact mitigation” fee.
Oral argument revealed that the justices were in “radical agreement” (as Justice Elena Kagan put it) in rejecting the idea that there is any such legislative exception. Indeed, even counsel for the County seemed to abandon the argument that any such exception exists. Thus, today’s unanimous decision to that effect comes as little surprise. Justice Amy Coney Barrett’s opinion for the Court effectively summarizes the reasons why the idea that there is a legislative exception makes little sense:
Nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules.
The Constitution’s text does not limit the Takings Clause to a particular branch of government. The Clause itself, which speaks in the passive voice, “focuses on (and prohibits) a certain ‘act’: the taking of private property without just compensation.” Knight v. Metropolitan Govt. of Nashville & Davidson Cty., 67 F. 4th 816, 829 (CA6 2023). It does not single out legislative acts for special treatment. Nor does the Fourteenth Amendment, which incorporates the Takings Clause against the States. On the contrary, the Amendment constrains the power of each “State” as an undivided whole. §1 Thus, there is “no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation.” Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U. S. 702, 714 (2010) (plurality opinion). Just as the Takings Clause “protects ‘private property’ without any distinction between different types,” Horne v. Department of Agriculture, 576 U. S. 351, 358 (2015), it constrains the government without any distinction between legislation and oth
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