The current U.S. Supreme Court uses a dizzying assortment of new and rarely used methodologies to reach decisions (e.g., originalism, textualism, and the undefined “major question” doctrine). Selective use, or ignoring these methodologies, gives the Court significant latitude to achieve preferred policy and ideological goals. Court observers are noticing that the Court is seizing an expanded role away from the executive branch, congress, and administrative expertise, becoming the unelected supreme branch. Mark A. Lemley, The Imperial Supreme Court, 136 Harv. Law Rev. F. 97 (Nov. 2022).
Sometimes the Court reverses previous legal precedent that is the cornerstone of a stable judicial system. This judicial consistency is what lawyers call stare decisis. In the most egregious example, the three Trump-appointed justices helped overturn the 50-year Roe v. Wade women’s reproductive rights decision. This was contrary to their congressional confirmation testimony that recognized the importance of stare decisis and Roe’s precedent.
Despite a reduced caseload, the Court has selectively granted emergency petitions and cases for review, including bypassing lower court review. It appears the Court is using its discretion to accept cases with an opportunity to advance an agenda. Because it takes only four justices to accept a case for review, many of these cases fail to attract a fifth justice needed for a ruling. Without agreement, the Court often remands the case to lower courts or rules on procedural reasons. Yet even these “non-decisions” suggest a thumb on the scale and possibly a rain check for a future controversial ruling for political reasons (e.g., after the 2024 election). Note the intentional delay in the presidential immunity case without clear guidelines and dismissing the mifepristone case on procedural standing grounds. This creates judicial uncertainty and often provides a roadmap for a future case.
The April 2024 Supreme Court property rights case, Sheetz v. County of El Dorado, is a prime example of accepting a case for review and failing to reach a definitive ruling. This case received little media attention (other than among real estate developer circles). While the case involves an impact fee on new development to finance more road capacity, the ruling could impact land use planning and future infrastructure financing options, including building infrastructure resiliency to protect communities from extreme weather. The Court’s non-decision (a remand to the California courts to again review the case under the Court’s reasoning) is already affecting communities' ability to manage land use which is commonly allowed under traditional police powers. The resulting judicial uncertainty on state and local ability to invest in new land-related infrastructure comes when climate change-induced extreme weather is affecting landscapes. After decades of predictable weather patterns, communities are grappling with managing and funding infrastructure to reduce flooding, provide water supply, protect against wildfires, and adapt to sea level rise.
It is surprising that the Court even agreed to review this property rights case as it undermines substantial judicial precedent favoring state authority to control local matters, as well a state rights policy orientation of the present Court. After extensive study and public engagement, California elected officials passed legislation on new property development zones needing more road capacity. The impact fee is a standard financing tool allowed under traditional local police powers and upheld by decades-old U.S. Supreme Court precedent. Previous Supreme Court decisions have recognized that states are primarily responsible for land use if the imposed property condition follows the Fifth Amendment to the U.S. Constitution (the “Takings Clause”). The Supreme Court has overwhelmingly upheld the constitutionality of local land restriction and financing for many local interests, e.g., phase new development, add new infrastructure (roads, sewers, stormwater control) associated with new development, provide open space, protect drinking water, preserve natural resources, encourage transportation-oriented density, etc.
Yet after accepting the Sheetz property rights case for review, the Court could not get five justices to agree on applying the facts to previous Court precedent it had used in similar land use permit cases. The Court previously used a judicial construct called the “unconstitutional conditions” doctrine in reviewing land use permit cases. Applying the unconstitutional conditions doctrine under the Takings Clause was well defined in a trio of decades-old Supreme Court cases (Nollan, Dolan, and Koontz). However, in Sheetz the Court did not follow previous criteria, thus injecting judicial uncertainty into what criteria is needed to constitute a property taking. Without clear new criteria the Court has created another squishy doctrine to stand with the similarly undefined major question doctrine applied in the West Virginia v. EPA power plant decision. Consider how different the underlying Sheetz facts are from the Supreme Court’s reasoning and precedent in the previous trio of permit land use cases :
- There was no property taken in Sheetz. The unconstitutional conditions doctrine requires a threatened constitutional right, such as the Takings Clause. The previous trio of property permit cases all involved some land parcel extraction. While one case (Koontz) included money instead of part of the land extraction, there was still real estate involved in the land permit negotiations. In Sheetz there was no land at stake for being extracted by the government.
- Sheetz involved a fee. Courts give great deference to the imposition of fees and taxes for community purposes and are rarely considered a taking.
- In Sheetz there was no administrative government official involved with negotiating a development permit decision. Rather, elected legislative political officials, after public engagement and study, carefully crafted legislation for set fees in designated areas affecting new road infrastructure capacity.
- Mr. Sheetz was not coerced. Rather he voluntarily elected to buy property in a previously designated zone with a set impact fee to build a house. In the previous trio of cases the permit official’s demand occurred during negotiation with the individual property owner, thus amounting to leverage or coercion.
Under the previously established Supreme Court’s criteria for applying the unconstitutional conditions doctrine, the Court could have applied the uncontested Sheetz facts for agreeing with the state court’s ruling, while still refining the reasoning for the outcome. Yet five justices could not agree on whether there was a taking much less how the Sheetz facts fit into the unconstitutional conditions doctrine. Lacking agreement on to how to expand property rights, the Court vacated the state ruling on its narrowly submitted question-- that there is no general legislative exemption from the Takings Clause-- and sent the case back to the state.
By not applying and reaffirming the Court’s previous criteria, the Court creates uncertainty on the extent the Court will ultimately increase its scrutiny into state police power actions to expand property rights. This uncertainty will increase litigation, slow infrastructure investment, and reduce financial resources for new public infrastructure to manage growth and protect communities from extreme weather. Early examples of these consequences are included in a new American Bar Association publication. Smith, A., The Supreme Court increases its involvement in local land use: the continuing Sheetz saga, Natural Resources & Environment Journal, vol 39, no 1 (Summer 2024).
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