Charles Gardner

As anticipated by the “radical agreement” among the parties and justices at oral argument, the Supreme Court’s recently released decision in Sheetz v. County of El Dorado put to rest the question of whether legislatively-imposed land use permit conditions are outside the scope of the takings clause.  The unanimous ruling confirms the common-sense proposition that a state action cannot evade constitutional scrutiny simply because it’s a law of general application rather than an administrative decree, and subjects conditions on building permits – whether monetary or not – to the essential nexus and rough proportionality requirements enshrined in the Nollan and Dolan cases. The narrow ruling reflects the sound principle that, when dealing with constitutional questions, a court shouldn’t address hypotheticals or other issues not in direct contention among the parties. Nonetheless, the majority felt compelled to state that it would not address “whether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development,” which seems to leave open the possibility that the answer might be “no.” Justice Gorsuch, in his concurrence, was astonished by this statement, wondering how a court which had just endorsed the universal applicability of the takings clause could stumble into another arbitrary distinction with no basis in common sense or constitutional law. The court’s concern was not a jurisprudential one, but apparently a policy one: in another concurrence, Justices Kavanaugh, Kagan and Jackson note that “[i]mportantly, therefore, today’s decision does not address or prohibit the common government practice of imposing permit conditions, such as impact fees, on new developments . . . .”  The justices’ impression that applying the current Nollan/Dolan formula to impact fees would or even could “prohibit” them is unfounded.  As Emily Hamilton and I wrote […]

As various housing reform bills work their way through the lawmaking process in American state legislatures, several new legal challenges to local land use and zoning ordinances are simultaneously underway in state and federal courts. Among these courtroom efforts are challenges to occupancy restrictions, short-term rental bans, inclusionary zoning and single-family zoning itself. On May 9, 2023, the Pacific Legal Foundation filed a complaint on behalf of two plaintiffs in the United States District Court for the District of Kansas challenging a City of Shawnee ordinance (Ordinance No. 3419) which prohibits more than three unrelated adults from living together in a single residence. These limits, often adopted by localities as a means of excluding student renters or other groups of persons who are perceived as subverting the proper purpose of the so-called single-family home, are challenged by the plaintiffs as a violation of the constitutional right of free association and specifically the right to select and establish a household. The lawsuit also alleges that the ordinance violates equal protection and is beyond the scope of Kansas’ zoning enabling act (K.S.A. 12-741 et seq.), which does not authorize cities to regulate persons based upon blood or legal relationship. In Nevada, the Clark County District Court on February 16, 2023 issued a preliminary injunction blocking Clark County from implementing and enforcing certain sections of its short-term rental ban (Clark County Code, Title 7, Chapter 7.100, Sections 7.100.110-.260). The lawsuit, filed by the Greater Las Vegas Short Term Rental Association, alleges among other things that the ordinance is arbitrary and capricious, reads as unconstitutionally vague, infringes on free association and effects a taking of property. That ruling has now been appealed to the Supreme Court of Nevada. On December 15, 2022, the Institute for Justice commenced a lawsuit on behalf of a Seattle […]