WEBVTT 1 00:00:02.439 --> 00:00:06.919 Welcome to scots Cast, a project of the Federalist Society for Law and Public 2 00:00:06.960 --> 00:00:11.800 Policy Studies. Our contributors join us from around the country to bring you expert 3 00:00:11.800 --> 00:00:16.679 commentary on US Supreme Court cases as they are argued and the decisions are issued. 4 00:00:16.960 --> 00:00:21.559 The Federalist Society takes no position on particular legal or public policy issues. 5 00:00:21.800 --> 00:00:30.199 All expressions are those of the speaker. Hello, and welcome to Scota's Cast. 6 00:00:30.440 --> 00:00:33.960 I'm your host, Kyle Hammernis, on behalf of the Faculty division of 7 00:00:34.000 --> 00:00:38.479 the Federalist Society. We are here today to discuss Sheets versus County of El 8 00:00:38.520 --> 00:00:42.799 Dorado, California, which was argued before the Supreme Court on January ninth, 9 00:00:42.880 --> 00:00:47.520 twenty twenty four. We are joined today by Nancy Marzoula. Nancy is a 10 00:00:47.560 --> 00:00:51.479 partner at Marsoula Law and author Namacus brief in this case on behalf of the 11 00:00:51.560 --> 00:00:57.399 Atlantic Legal Foundation. Joining Nancy to discuss this case is David Lamferman. David 12 00:00:57.479 --> 00:01:02.200 is a partner at Rutan and Tucker LA and also a brief in this case 13 00:01:02.240 --> 00:01:07.079 on behalf of the California Building Industries Association and the National Association of Homebuilders. 14 00:01:07.519 --> 00:01:11.280 And with that I like to turn things over to Nancy to discuss how the 15 00:01:11.359 --> 00:01:15.599 case got to the Supreme Court and summarize the oil arguments. All right, 16 00:01:15.680 --> 00:01:19.599 well, thank you. I am delighted to be here and delighted to be 17 00:01:19.719 --> 00:01:29.120 joined by my colleague Dave Lanferman, and we are here today to talk about 18 00:01:29.640 --> 00:01:40.400 a very interesting case and an extremely lively and far reaching argument held by the 19 00:01:40.519 --> 00:01:45.439 Supreme Court in the case. Now, the facts that give rise to this 20 00:01:45.640 --> 00:01:55.519 case are surprisingly ordinary. They involve a gentleman, George Sheets, who went 21 00:01:55.560 --> 00:02:01.560 about trying to get a permit or approval from the County of El Dorado to 22 00:02:01.640 --> 00:02:10.039 construct a very modest manufactured house on his property. Now bear in mind that 23 00:02:10.159 --> 00:02:21.240 mister sheets proposed construction complied with all of the applicable zoning laws and requirements. 24 00:02:21.599 --> 00:02:30.560 The only hiccup in his approval process was the county's demand that he pay to 25 00:02:30.680 --> 00:02:37.280 the county almost twenty four thousand dollars. And if he didn't pay almost twenty 26 00:02:37.280 --> 00:02:39.840 four thousand dollars, they wouldn't give him the permit. Well, why did 27 00:02:39.960 --> 00:02:45.719 the county want this money? It's what a bit of money? Almost twenty 28 00:02:45.759 --> 00:02:52.319 four thousand dollars They told him they needed the money for traffic. It was 29 00:02:52.360 --> 00:02:57.680 a traffic impact mitigation fee. Mister Sheet said, well, what traffic do 30 00:02:57.719 --> 00:03:01.919 you anticipate I'm going to be generating by putting this modest house on my property. 31 00:03:02.680 --> 00:03:07.919 Well, the county responded by saying, well, that's not the point. 32 00:03:07.439 --> 00:03:12.639 The point is we need this money because we have a fund that we 33 00:03:12.719 --> 00:03:17.840 need money for that we use to widen streets, repair streets, et cetera. 34 00:03:19.360 --> 00:03:23.039 And this is the way we fund it. When people come to us 35 00:03:23.080 --> 00:03:29.159 and want to get a building permit, we look and see where in the 36 00:03:29.199 --> 00:03:32.960 county the property is located. That's the first step. Then we say, 37 00:03:34.599 --> 00:03:38.039 well, what are you going to build on the property? Is it a 38 00:03:38.080 --> 00:03:43.280 single family residence, is it a multifamily residence, or is it commercial? 39 00:03:44.080 --> 00:03:51.400 So, depending on the answers to those two questions, we impose a prefixed, 40 00:03:51.719 --> 00:03:58.599 established fee on every building per applicant. And it's our understanding as the 41 00:03:58.680 --> 00:04:04.360 county that that's all we have to do to pass constitutional muster, because this 42 00:04:04.639 --> 00:04:15.479 is a fee scheme set out by the legislature, the county legislative body, 43 00:04:15.560 --> 00:04:20.199 so to speak. And so mister Sheets said, well that doesn't seem right 44 00:04:20.279 --> 00:04:27.800 to me. So he in fact challenged. He brought a constitutional taking challenge 45 00:04:28.199 --> 00:04:34.160 to this permit exaction fee that was being imposed on him, and it turns 46 00:04:34.199 --> 00:04:41.199 out that the California courts did infect agree with the county. They said, 47 00:04:41.759 --> 00:04:47.759 look, if this were a fee imposed by some other process, maybe an 48 00:04:47.839 --> 00:04:54.480 individual determination that had been made by the county, we'd really dig into it, 49 00:04:54.600 --> 00:04:59.959 and we would require that the county showed that there was a nexus betwe 50 00:05:00.240 --> 00:05:08.680 the fee and the traffic that his proposed use would cause. That's the so 51 00:05:08.800 --> 00:05:15.199 called nexus test announced in Nolan. And we would also look to see that 52 00:05:15.279 --> 00:05:23.399 the fee was roughly proportional to the traffic burdens or the impact on the roads 53 00:05:23.480 --> 00:05:31.399 that mister schuets Is proposed development might create, and that's the so called Dolan 54 00:05:31.560 --> 00:05:39.839 test. So in other circumstances those tests would apply the Nolan Dolan test, 55 00:05:40.279 --> 00:05:44.920 but in this case, because it's the legislature, we get essentially a free 56 00:05:44.959 --> 00:05:48.199 pass. All we have to show is that, well, there's traffic problems 57 00:05:48.319 --> 00:05:54.040 or street construction needs in the county, and we think this is a good 58 00:05:54.079 --> 00:06:04.040 idea to fund the construction by imposed in these fees on permit applications. The 59 00:06:04.319 --> 00:06:12.560 specific question the Supreme Court agreed to hear was whether there is in fact a 60 00:06:12.759 --> 00:06:20.360 legislative exception to what is referred to as the unconstitutional conditions doctrine. That's the 61 00:06:20.519 --> 00:06:29.800 Nolan Dolan test I just described. Was the California Pellet Court and lower courts 62 00:06:29.879 --> 00:06:39.240 were they correct. This case has generated a lot of interest among various interests 63 00:06:39.279 --> 00:06:46.160 within the across the country. Seven AMIICAS briefs were filed, really eight. 64 00:06:46.279 --> 00:06:50.639 The American Planning Association filed a brief which purported to be on behalf of neither 65 00:06:50.759 --> 00:06:55.079 party, but it was really on behalf of the county. So there were 66 00:06:55.120 --> 00:07:00.800 eight briefs filed, and support of the county, including the Solicitor General of 67 00:07:00.839 --> 00:07:06.839 the United States, a variety of states and students, including the state of 68 00:07:06.879 --> 00:07:14.839 California. And their basic argument was everything's working fine. And by the way, 69 00:07:14.959 --> 00:07:20.519 look at all those wonderful projects we can fund by requiring people who want 70 00:07:20.560 --> 00:07:25.560 to use their property to pay a fee. It's great, it's wonderful. 71 00:07:26.439 --> 00:07:32.600 Well on support of the mister Sheets, he had almost twice as many, 72 00:07:32.879 --> 00:07:40.800 really well over twice as many groups jump in and say, wait a minute, 73 00:07:41.199 --> 00:07:47.079 it doesn't make any sense to carve out from this heightened review under the 74 00:07:47.199 --> 00:07:56.160 unconstitutional conditions doctrine to say that wealth the legislature does the taking that they're exempt 75 00:07:56.399 --> 00:08:03.319 from. Nolan Dolan. We have group such as the Southeastern Legal Foundation, 76 00:08:03.000 --> 00:08:11.959 the National Chamber of Commerce, National Association of Realtors. Dave will talk about 77 00:08:11.000 --> 00:08:18.040 his brief for the National Association of Homebuilders and the California Building Industry Association, 78 00:08:20.360 --> 00:08:24.879 and my brief on behalf of the Atlantic Legal Foundation. I talked about the 79 00:08:24.920 --> 00:08:31.040 fact that the constitutional injury is a saying regardless of who does the taking. 80 00:08:31.360 --> 00:08:37.000 Now, interestingly, this case gained so much public public attention that the Wall 81 00:08:37.039 --> 00:08:43.799 Street Journal wrote an editorial that was published on Saturday, and it was their 82 00:08:43.919 --> 00:08:50.960 lead editorial, and they came out all full force on behalf of mister Sheets, 83 00:08:52.799 --> 00:08:58.600 and they said, and I quote, politicians increasingly trample property rights to 84 00:08:58.600 --> 00:09:05.480 promote what they deemed to be the public good. Progressive states and cities one 85 00:09:05.559 --> 00:09:11.159 that are ruling for mister Sheets could imperils the schemes, perhaps, but the 86 00:09:11.240 --> 00:09:18.679 Constitution doesn't let the government commit highway robbery. So with that, Dag, 87 00:09:18.799 --> 00:09:22.200 why didn't I turn to you and get your take and the take from the 88 00:09:22.200 --> 00:09:31.080 building industry of the building industry. Both the California Building Industry Association and the 89 00:09:31.159 --> 00:09:37.639 National Association of Homebuilders were very concerned about this case back when it was still 90 00:09:37.679 --> 00:09:43.480 in the California State court system and had us join with the petitioner, mister 91 00:09:43.519 --> 00:09:50.080 Sheets, asking the California Supreme Court to review and reverse the Court of Appeal 92 00:09:50.759 --> 00:09:56.399 because of the conflict and the jurisdictions, and also to the point you made 93 00:09:56.440 --> 00:10:05.200 that there's no principled constitutional reason why an exaction is legitimate if it's made by 94 00:10:05.320 --> 00:10:09.679 the Board of Supervisors, but not legitimate if it's made by the Planning Commission. 95 00:10:11.240 --> 00:10:16.919 The impact is the same on the subjected property or developer. This California 96 00:10:16.000 --> 00:10:22.720 Supreme Court declined to review the case without comment. The case is really important 97 00:10:22.759 --> 00:10:31.399 to the building industry the people that are briefed on behalf of because increasingly, 98 00:10:33.080 --> 00:10:39.360 development impact fees are a major factor, perhaps even the primary factor, in 99 00:10:39.399 --> 00:10:43.799 the cost of construction of residential housing, depending on what jurisdiction you're in, 100 00:10:45.240 --> 00:10:52.279 and a jurisdiction like California in which the courts have declined to apply Nolan, 101 00:10:52.559 --> 00:10:58.360 Dolan and Kuntz across the board, and in which the courts say if the 102 00:10:58.440 --> 00:11:05.279 county adopts a schedule fees that's beyond our scrutiny. California and other cases, 103 00:11:05.399 --> 00:11:09.679 like other states like it, find that their impact fees continue to rise, 104 00:11:11.240 --> 00:11:20.799 whereas a study that was conducted in conducted in twenty nineteen by the California Department 105 00:11:20.840 --> 00:11:26.240 of Housing and Community Development reported that on average, development fees continue to rise 106 00:11:26.279 --> 00:11:33.960 in California, while nationally fees have decreased. In the jurisdictions that do apply 107 00:11:35.279 --> 00:11:39.919 Dolan, which requires a showing of rough proportionality between the amount of the fee 108 00:11:41.559 --> 00:11:46.399 and the impact of new development, those cases have a constraint not just on 109 00:11:48.679 --> 00:11:54.000 does there has the government shown a reasonable nexus or connection between the impact of 110 00:11:54.000 --> 00:11:58.200 the project, but is the dollar amount of the fee or in faction, 111 00:12:00.159 --> 00:12:05.279 the proportion at least to the impact. So there is a constraint in those 112 00:12:05.320 --> 00:12:09.159 states which has been missing in California, and which is one of the reasons 113 00:12:09.159 --> 00:12:15.519 that the building industry was very optimistic that the court would not just grant review 114 00:12:15.559 --> 00:12:20.879 in this case, but reverse it and make it clear that the standards that 115 00:12:20.960 --> 00:12:26.480 it had developed in nineteen ninety six with Dolan and then later on in twenty 116 00:12:26.519 --> 00:12:33.240 thirteen with coons that those standards requiring both reasonable nexus and a rough proportionality, 117 00:12:33.600 --> 00:12:39.440 that those standards shild apply across the board, regardless which branch of government or 118 00:12:39.480 --> 00:12:50.080 which level of government establishes the impact fee. So there was briefing by other 119 00:12:50.120 --> 00:12:56.039 anarchist groups in addition to the homebuilders, pointing out that a study conducted for 120 00:12:56.159 --> 00:13:03.399 the California Housing and Community Development Departs in August of twenty nineteen showed that the 121 00:13:03.480 --> 00:13:09.960 average regulatory costs of fees and exactions added twenty three thousand, four hundred and 122 00:13:11.000 --> 00:13:16.360 fifty five dollars per single family residents and added over nineteen thousand dollars per multifamily 123 00:13:16.519 --> 00:13:24.360 residential unit. They reported that that was almost three times the national average. 124 00:13:24.679 --> 00:13:28.480 As to the amount of fees, those numbers actually seem low to me. 125 00:13:28.639 --> 00:13:33.320 I practiced in California and have been dealing with development fees for thirty something years. 126 00:13:33.320 --> 00:13:37.960 Those twenty four thousand dollars would be a bargain in most parts, certainly 127 00:13:37.960 --> 00:13:46.679 in coastal California. A study by the home Builders of the Greater Central Valley 128 00:13:46.720 --> 00:13:52.240 found that on average, bees average fifty thousand dollars per house in Sacramento County 129 00:13:52.279 --> 00:13:56.480 which is not one of the higher priced residential areas in the state. They 130 00:13:56.519 --> 00:14:03.960 found that the average fees added ninety seve seven thousand dollars per house, and 131 00:14:03.279 --> 00:14:07.519 other examples in the suburbs around Sacramento of up to one hundred and five thousand 132 00:14:09.159 --> 00:14:13.399 going back to twenty eighteen. Again, the California's own agency, the Housing 133 00:14:13.399 --> 00:14:20.559 and Community Development Agency, conducted a study that found several cities charging up to 134 00:14:20.799 --> 00:14:28.159 one hundred and fifty seven thousand dollars per house five years ago. So it 135 00:14:28.240 --> 00:14:37.200 is a significant factor in the cost of housing. California is very visible and 136 00:14:37.879 --> 00:14:41.320 audible in terms of recognizing that we have a housing shortage and the housing we 137 00:14:41.360 --> 00:14:50.320 do have is very expensive. The California legislature actually passed a bill in which 138 00:14:50.320 --> 00:14:56.399 they made a legislative finding California Government Code sixty five five eight nine point five 139 00:14:56.000 --> 00:15:03.440 which the legislature said that the excessive cost so California's housing supply is partially caused 140 00:15:03.480 --> 00:15:07.759 by many local governments that require high fees and exactions be paid by producers of 141 00:15:07.759 --> 00:15:16.759 housing. In recent years, California state government has been enacting bills to try 142 00:15:16.759 --> 00:15:22.960 to improve the feasibility and reduce the cost of producing housing. Basically, it's 143 00:15:22.000 --> 00:15:28.799 put the state government in conflict with local governments who are still generally resistant to 144 00:15:30.159 --> 00:15:35.240 having their discretion trimmed in terms of approval of housing, but the state has 145 00:15:35.240 --> 00:15:41.039 been pushing in favor of it. That was ironic in this case that the 146 00:15:41.080 --> 00:15:45.759 state would weigh in on the side of the county in favor of basically unconstrained 147 00:15:45.799 --> 00:15:50.799 fees because in the last four years have been two significant bills passed to require 148 00:15:52.399 --> 00:16:00.039 some standards legislative standards or fees imposed on new housing development, regardless of what 149 00:16:00.039 --> 00:16:04.919 the Supreme Court does with the Sheets case. So, Dave, how did 150 00:16:04.960 --> 00:16:11.639 you think the argument went. I don't get the opportunity or had the interest 151 00:16:11.960 --> 00:16:15.960 to listen to any of these. I thought it was fascinating. I thought 152 00:16:17.000 --> 00:16:21.399 that the advocate for the petitioner, Paul Beard, did an excellent job of 153 00:16:21.960 --> 00:16:27.159 arguing the issue raised in the Sheets case and addressing the question presented on which 154 00:16:27.200 --> 00:16:33.639 the Supreme Court had granted sert. As you said, the question presented was 155 00:16:36.240 --> 00:16:41.559 is a permit exaction exempt from the unconstitutional conditions doctrine as applied in Nolan and 156 00:16:41.600 --> 00:16:51.679 Dolan simply because it's authorized by legislation, and he explained both as a matter 157 00:16:51.720 --> 00:16:56.639 of constitutional doctrine, there's no reason for carving at an exception in favor of 158 00:16:56.879 --> 00:17:06.119 these imposed by a board of supervisors or a city council. The government attorneys 159 00:17:06.480 --> 00:17:11.960 for the County of El Dorado and then the Solicitor General was granted temnists to 160 00:17:11.039 --> 00:17:15.759 argue in support of the county. They didn't really seem to be arguing this 161 00:17:15.880 --> 00:17:25.400 case. They basically wanted to go back in two cases coming up before this, 162 00:17:25.640 --> 00:17:30.880 Like Dolan, they seemed to question why would the Supreme Court require that 163 00:17:30.920 --> 00:17:33.920 there be a showing of re proportionality as to any fee. And then of 164 00:17:33.960 --> 00:17:40.039 course they argued that this was not a taking and so that neither Dolan or 165 00:17:41.759 --> 00:17:45.720 Dolan should apply. They shouldn't have to show either a nexus or portionality. 166 00:17:45.960 --> 00:17:53.440 There were several justices from the Supreme Court, Justice Jackson, Justice Kagan who 167 00:17:55.160 --> 00:18:00.920 seemed to refuse to see a difference between development impact fees and taxes or user 168 00:18:00.960 --> 00:18:07.519 fees. Now, Dave you, I like you was astonished at how far 169 00:18:07.640 --> 00:18:15.200 a feel the argument seemed to go. At one point, uh Justice Kagan 170 00:18:15.440 --> 00:18:19.920 was talking about the fact that she does to give up her easy pass. 171 00:18:21.000 --> 00:18:29.880 So I mean this really for such a very narrow, laser pointed issue the 172 00:18:30.240 --> 00:18:36.480 courts, for the justices on the court saying well, what about property taxes? 173 00:18:36.519 --> 00:18:41.799 What about user fees? And on and on and on. It really 174 00:18:42.519 --> 00:18:49.000 got very far afeel from this precise issue before the court, and a couple 175 00:18:49.039 --> 00:18:56.440 of the Justice justices tried to bring the issue back, bring the court back 176 00:18:56.519 --> 00:19:03.880 to the narrow issue before it. I think Justice Alito and Justice Gorsage both 177 00:19:03.960 --> 00:19:10.359 tried to refocus the argument and did you hear what I heard, Dave, 178 00:19:10.839 --> 00:19:18.599 which was the county attorney agreeing with the petitioner, mister Sheets, that there's 179 00:19:18.839 --> 00:19:26.200 no blanket exception for legislative takings. And I believe it was Alito, it 180 00:19:26.240 --> 00:19:30.960 may have been Gorsach who seemed like they didn't really hear that either, and 181 00:19:32.039 --> 00:19:40.480 they really wanted to button that really essentially concession down, and they asked it 182 00:19:40.559 --> 00:19:45.319 squarely, and the county attorney said, yes, that's correct, that is 183 00:19:45.359 --> 00:19:49.240 the county's position, and I think everybody then said, well, what are 184 00:19:49.240 --> 00:19:56.000 we doing here? Then? I believe at least that was the implied after 185 00:19:56.039 --> 00:20:00.799 he got that concession from the county's attorney. Yeah, arguments started. Paul 186 00:20:00.880 --> 00:20:06.839 Muird for the petitioner mister Sheets went first, and of course he was questioned 187 00:20:07.079 --> 00:20:12.759 critically by I thought, but by Justice Jackson Kayan, with a little bit 188 00:20:12.799 --> 00:20:19.319 of questioning from Justice Soda Mayor, again not focusing on whether or not there 189 00:20:19.319 --> 00:20:23.440 should be a legislative exemption. I mean, whether there should be an exemption 190 00:20:23.519 --> 00:20:29.000 from dolan or legislative fees, but they're questioning kind of went back to trying 191 00:20:29.039 --> 00:20:34.000 to re argue kuns whether there should be a distinction between development impact fees and 192 00:20:34.759 --> 00:20:41.880 other revenue raising measures used by local governments. And the Petitioner's Council was trying 193 00:20:41.920 --> 00:20:47.799 to point out, with some support from Justice Corsage and Justice Alito, that 194 00:20:48.960 --> 00:20:56.680 taxes are different than fees. They have different procedural and constitutional limitations. As 195 00:20:56.720 --> 00:21:00.960 an aside, in California, as a result of statewide voter initiatives like Proposition 196 00:21:02.119 --> 00:21:07.400 thirteen in subsequent pretty much any tax has to be voter approval. So these 197 00:21:07.440 --> 00:21:14.160 couldn't be Balo state taxes under California's constitution, right, And I think that 198 00:21:15.440 --> 00:21:21.839 Paul Beard for mister Sheets made it clear in his in his briefs that this 199 00:21:22.079 --> 00:21:27.640 issue was very narrow, and yet nevertheless we wound up spending an enormous amount 200 00:21:27.680 --> 00:21:33.640 of time with all of the council addressing the issue well, what's what's a 201 00:21:33.799 --> 00:21:37.039 tax, what's a user fee? What's this? What's that? In fact, 202 00:21:37.119 --> 00:21:44.400 the argument even got so attenuated that at one point, just to Salita, 203 00:21:44.880 --> 00:21:52.640 Alito got into a disagreement with the attorney for the county who argued tried 204 00:21:52.680 --> 00:22:00.880 to argue that the Pellet Court's decision was ambiguous, and he did and then 205 00:22:02.079 --> 00:22:06.920 us, what makes you say that? And he actually got out the decision 206 00:22:07.759 --> 00:22:11.359 and read portions of it to her, and she said, well, I 207 00:22:11.400 --> 00:22:18.920 still think that's ambus. The Caliperate Court of Appeal had explicitly stated, there's 208 00:22:18.920 --> 00:22:26.240 a reason for upholding the county's traffic impact fee schedule was based on the fact 209 00:22:26.279 --> 00:22:33.319 that it had been legislatively adopted and was broadly applicable to an undefined number of 210 00:22:33.319 --> 00:22:38.119 persons. That was the stason for the decision, and much of the argument 211 00:22:38.319 --> 00:22:47.240 from those who disagreed with the petitioner was far field from that point. You 212 00:22:47.279 --> 00:22:51.079 know, there was argument, I think it was Justice Jackson or maybe Justice 213 00:22:51.119 --> 00:22:56.640 Kagan said something about well what if what if the County had just required me 214 00:22:56.680 --> 00:23:00.279 to put a toll booth in my driveway, and I pay a top to 215 00:23:00.680 --> 00:23:04.400 every time I went on to the public road. I mean, there were 216 00:23:04.440 --> 00:23:14.240 some extreme examples, but forth again far Afield and I think there were other 217 00:23:14.440 --> 00:23:18.400 justices that pointed out that the question on which Sert had been granted was the 218 00:23:18.480 --> 00:23:25.039 narrow issue of you know, is there an expression to the rules set forth 219 00:23:25.039 --> 00:23:30.680 in Nolan, Dolan and Coons depending on what branch or government adopted the fees. 220 00:23:33.720 --> 00:23:40.920 I agree with you. I read the California and Pillow decision as being 221 00:23:41.279 --> 00:23:48.519 crystal clear that we're not even going to look at any arguments about whether this 222 00:23:48.839 --> 00:23:53.240 was a taking, whether it wasn't a taking, anything along those lines, 223 00:23:53.319 --> 00:24:00.119 because the rational basis test applies because it's a legislative to take king, and 224 00:24:00.559 --> 00:24:07.200 that test, which we all know is a very low bar, that bar 225 00:24:07.400 --> 00:24:15.480 has been easily lost, and so therefore that's the end of the discussion. 226 00:24:18.799 --> 00:24:25.680 So the argument today was one in which all of the Justice, including Justice 227 00:24:25.839 --> 00:24:33.119 Thomas on several occasions, participated and by asking questions, probing responses, and 228 00:24:33.160 --> 00:24:40.799 so forth. In fact, Justice Thomas kicked off the questions by stating at 229 00:24:40.839 --> 00:24:47.839 the outset that in his question that his understanding of the issue was that it 230 00:24:48.039 --> 00:24:52.400 was in fact a very narrow issue, and you would have thought that that 231 00:24:52.480 --> 00:25:00.960 would have kept the Council focused on that very specific issue legislative conditions, but 232 00:25:02.839 --> 00:25:08.079 he failed to keep them focused on the issue at hand. I guess one 233 00:25:08.079 --> 00:25:15.119 other interesting thing in my mind was the fact that the sg's office did in 234 00:25:15.279 --> 00:25:25.519 fact request argument time, and yet I didn't find the sg's argument that compelling. 235 00:25:25.839 --> 00:25:33.920 I don't think they made anything added much to the argument for why this 236 00:25:37.000 --> 00:25:48.599 legislative exaction should be exempt from the Nolan Dolan heightened scrutiny, So I think 237 00:25:48.680 --> 00:25:55.279 that was kind of a wasted opportunity they had if they actually had anything helpful 238 00:25:55.319 --> 00:26:00.319 to say for their side their view, they didn't necessarily managed to get it 239 00:26:00.359 --> 00:26:07.720 across very well during the argument. Solicitor General's position the case was a bit 240 00:26:07.799 --> 00:26:12.839 odd. In their application to file their amicus brief or to ask for time 241 00:26:12.880 --> 00:26:18.359 for argument, the federal government made a point of saying that the federal government 242 00:26:19.000 --> 00:26:25.240 generally doesn't impose development impact fees. We have some mitigation fees for wetlands and 243 00:26:25.319 --> 00:26:30.440 other federal programs, but we're not really a player in this development impact fee 244 00:26:30.319 --> 00:26:34.279 arena. Nevertheless, we want to come in on the side of government in 245 00:26:34.319 --> 00:26:41.680 general to basically be given as much discretion as possible in raising revenue, and 246 00:26:41.799 --> 00:26:49.400 that the standards should be not very stringent when it comes to development impact fees. 247 00:26:51.440 --> 00:27:00.079 Again, it was that argument, together with the counties argument about what 248 00:27:00.240 --> 00:27:06.359 standard should apply here, made me wonder, Okay, if they agree that 249 00:27:06.440 --> 00:27:11.480 there should be a nexus and a rough proportionality requirement for fees imposed on it 250 00:27:11.720 --> 00:27:18.640 as as on at hack project specific basis. If they agree that that's the 251 00:27:18.720 --> 00:27:25.599 law, why doesn't that standard apply otherwise or why don't they want it to 252 00:27:25.640 --> 00:27:29.640 apply others or are they afraid that they can't meet that standard? If it's 253 00:27:29.839 --> 00:27:34.880 if it's applied across the board. That's it point other than we want unfettered 254 00:27:34.920 --> 00:27:42.599 discression posing without any limitation. I mean, the just spop that up. 255 00:27:42.839 --> 00:27:47.160 It's kind of an elephant in the room from my point of view that they're 256 00:27:47.279 --> 00:27:51.039 arguing that we want new standards but not really telling the court why they want 257 00:27:51.079 --> 00:27:55.440 new standards. The implications we will because we want to be able to raise 258 00:27:55.480 --> 00:28:00.839 money without having to show of rough proportionality. I thought it was odd. 259 00:28:02.240 --> 00:28:04.680 So I'm going to put you on the spot and ask you to call the 260 00:28:04.759 --> 00:28:14.039 case. How do you think it's going to come out? I think I 261 00:28:14.039 --> 00:28:21.440 think the majority of the court seems inclined to focus on the narrow pant and 262 00:28:21.480 --> 00:28:25.960 I think there's a majority of the justices that will reverse on that basis. 263 00:28:26.319 --> 00:28:30.599 I mean, there was a couple of them that suggested if we just reversed 264 00:28:30.640 --> 00:28:34.799 the California Court of Appeal and say there is no blanket exemption, we remanned 265 00:28:34.839 --> 00:28:38.960 the case and the court can decide whether or not the county has carried its 266 00:28:38.960 --> 00:28:45.000 burden to show that the fees are reasonable, they meet a reasonable nexus stand 267 00:28:45.039 --> 00:28:48.920 and they meet a rough proportit extent, that issue can go back and we 268 00:28:48.960 --> 00:28:51.920 don't have to get into the weeds on the rest of it. I think 269 00:28:51.960 --> 00:28:57.240 that probably has at least five votes. I wasn't sure where Justice Barrett came 270 00:28:57.279 --> 00:29:02.039 out of that. There was some questions she asked. It indicated to me 271 00:29:02.160 --> 00:29:08.400 she had some confusion with area distinguishing fees from assessments, which have entirely different 272 00:29:08.440 --> 00:29:17.160 constitutional and statutory requirements. But I think it would be reversed and remanded for 273 00:29:17.440 --> 00:29:22.880 proceedings applying the Nolan Dolan standards. Yeah, I fully agree with you. 274 00:29:22.960 --> 00:29:29.559 I count at least five votes. I'm not sure who the five are. 275 00:29:30.119 --> 00:29:37.519 I mean AMA's Alito, I hope Roberts. I mean I think we've got 276 00:29:37.720 --> 00:29:41.720 five. We've got enough for a reversal. I think that we might get 277 00:29:41.759 --> 00:29:52.039 a concurring opinion, and that concurrence would delve into this user fee, tolls 278 00:29:52.079 --> 00:29:59.519 and so forth, So there might be a concurring opinion that would make it 279 00:29:59.599 --> 00:30:07.799 clear that their vote in favor of reversal was very narrowly focused to the extent 280 00:30:07.839 --> 00:30:14.759 that we get a dissent. Kagan jumps out at me because she made such 281 00:30:14.799 --> 00:30:18.200 a big deal about the fact that she didn't even think this was a taking 282 00:30:18.279 --> 00:30:23.319 at all. I think Jackson fell in that category as well. She didn't 283 00:30:23.359 --> 00:30:30.519 understand why the Fifth Amendment was even implicated here, and I do have to 284 00:30:30.559 --> 00:30:38.240 say I think that issue. The longer the argument went along, more this 285 00:30:38.359 --> 00:30:44.519 issue became sort of diffuse, and we lost track of the fact that this 286 00:30:45.039 --> 00:30:53.799 was an application to use property that was being conditioned. I think as your 287 00:30:53.880 --> 00:31:02.160 argument went on, both the County and the Solicitor General seem to be relying 288 00:31:02.920 --> 00:31:11.480 morely on practicality and workability type arguments, basically saying, well, if a 289 00:31:11.480 --> 00:31:18.400 local agency cannot legislatively adopt a schedule of fees, how is the government supposed 290 00:31:18.440 --> 00:31:25.000 to comply with the language in Dolan that says there should be at least a 291 00:31:25.000 --> 00:31:30.920 good faith effort to make an individual determination that the fee amount is roughly proportional. 292 00:31:32.920 --> 00:31:34.319 You know, does that mean that each parcel has to go through a 293 00:31:34.359 --> 00:31:40.599 separate analysis? And I thought the petitioners counsel and mister Beard did a good 294 00:31:40.640 --> 00:31:45.359 job of responding to that, pointing out that there can still be categories of 295 00:31:45.200 --> 00:31:51.799 fees that will be adopted legislatively. And so the thing that was missing in 296 00:31:51.839 --> 00:31:56.400 the Sheets case is mister Seats paid a fee based on the category of the 297 00:31:56.440 --> 00:32:01.599 county put his house, his single family house in and there was neither an 298 00:32:01.640 --> 00:32:07.359 opportunity at the administrative level or in the court level for him to question the 299 00:32:07.400 --> 00:32:14.480 applicability of that category. I mean, the county county attorney argued, they 300 00:32:14.640 --> 00:32:19.880 linked about the studies that they'd put together and how they had carefully selected the 301 00:32:19.920 --> 00:32:22.880 fee amounts. And that may all be true. But if there's a fee 302 00:32:22.920 --> 00:32:29.519 payer who questions that under the California court decision that fee payer doesn't get a 303 00:32:29.559 --> 00:32:34.359 day in court to question the government agency as to how they put the fee 304 00:32:34.400 --> 00:32:38.039 together or how should apply to him. It's to outful and I think also 305 00:32:38.200 --> 00:32:45.759 Petitioners Council pointed out that in the states that don't follow California, which do 306 00:32:45.319 --> 00:32:52.440 require some effort to show for portionality, there has not been floodgates have an 307 00:32:52.440 --> 00:32:57.880 open with litigation by property owners and developers questioning fees. It'll be probably more 308 00:32:57.960 --> 00:33:02.240 the exception than the rule when there's really anomalous or an exporbatant feed it somebody 309 00:33:02.240 --> 00:33:07.200 who wants to spend the time and money in court fighting. Thank you for 310 00:33:07.279 --> 00:33:10.279 listening to this episode of SCO Discast. SCO Discast is the project of the 311 00:33:10.279 --> 00:33:16.799 Federalist Society, a not for profit educational organization of conservative and libertarian law students, 312 00:33:17.079 --> 00:33:22.559 law professors, and lawyers, founded upon the principles that the state exists 313 00:33:22.559 --> 00:33:25.799 to preserve freedom, that the separation of governmental power is essential to our constitution, 314 00:33:27.000 --> 00:33:30.920 and that it is emphatically the province and duty of the judiciary to say 315 00:33:30.960 --> 00:33:34.559 what the law is, not what it should be. Don't forget to subscribe 316 00:33:34.599 --> 00:33:37.960 to our podcast series, including SCO discasts and Practice group podcasts, on iTunes 317 00:33:38.039 --> 00:33:43.440 or Google Play. 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