The Volokh Conspiracy

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Justice Barrett on the Takings Clause and the Police Power

"Though at times the two seem more like in-laws than soulmates."


After Justice Scalia's passing, the best writers on the Court are Chief Justice Roberts and Justice Kagan. Roberts is at his best in a non-ideological case where he has no need to keep votes or reach some contrived outcome. (Roberts's discussion of Wonder Bread today in the 9-0 Bisonnette case was delightful). Kagan is at her best when she goes full-on snark mode in dissent. She spares no one. After the two-way tie between Roberts and Kagan, I think Justice Barrett has climbed to third place. I always find her writing to be delightful, insightful, and clean. Plus she has the virtue of writing the quickest. I haven't run the numbers, but it seems that her opinions consistently come out shortly after oral argument, which means she circulates quickly and there are few revisions to be made.

Justice Barrett's opinion today in Sheetz v. El Dorado County was golden. I especially appreciated this tight summary of the Court's takings clause jurisprudence:

The Takings Clause's right to just compensation coexists with the States' police power to engage in land-use planning. (Though at times the two seem more like in-laws than soulmates.) While States have substantial authority to regulate land use, see Village of Euclid v. Amber Realty Co., 272 U. S. 365 (1926), the right to compensation is triggered if they "physically appropriat[e]" property or otherwise interfere with the owner's right to exclude others from it, Cedar Point Nursery v. Hassid, 594 U. S. 139, 149–152 (2021).That sort of intrusion on property rights is a per se taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). Different rules apply to State laws that merely restrict how land is used. A use restriction that is "reasonably necessary to the effectuation of a substantial government purpose" is not a taking unless it saps too much of the property's value or frustrates the owner's investment-backed expectations. Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123, 127 (1978); see also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1016 (1992) ("[T]he Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land" (internal quotation marks omitted)).

I do wonder what Justice Barrett thinks about her soulmate and her inlaws. And, as is often the case, with the soulmate comes the inlaws. Like love and marriage, you can't have one without the other. Though Justice Scalia's nearest hippies would beg to differ.

Justice Barrett also uses another hypothetical that likely comes from real-world experience–sort of like the babysitter-theme park hypo:

The government is entitled to put the landowner to the choice of accepting the bargain or abandoning the proposed development. See R. Epstein, Bargaining With the State 188 (1993). The bargain takes on a different character when the government withholds or conditions a building permit for reasons unrelated to its land-use interests. Imagine that a local planning commission denies the owner of a vacant lot a building permit unless she allows the commission to host its annual holiday party in her backyard (in propertyspeak, granting it a limited-access easement). The landowner is "likely to accede to the government's demand, no matter how unreasonable," so long as she values the building permit more. Koontz, 570 U. S., at 605. So too if the commission gives the landowner the option of bankrolling the party at a local pub instead of hosting it on her land. See id., at 612–615. Because such conditions lack a sufficient connection to a legitimate land-use interest, they amount to "an out-and-out plan of extortion." Nollan, 483 U. S., at 837 (internal quotation marks omitted). Our decisions in Nollan and Dolan address this potentialabuse of the permitting process. There, we set out a two-part test modeled on the unconstitutional conditions doctrine.

The Court's decision was unanimous: the Nollan/Dolan test applies if the condition is imposed by legislation. The Court found that "Nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules." The rest of the majority opinion is a breezy summary of how the Takings Clause has operated for centuries. Students learning about the Takings Clause can skim this analysis for a quick overview.

There are three separate writings. Justice Sotomayor, joined by Justice Jackson, stressed that the Court did not resolve "whether the permit condition would be a compensable taking if imposed outside the permitting context." In other words, the Court left open whether the Nollan/Dolan test should apply to fees imposed on a "class of properties" in the same fashion that it applies to a "particular development." Justice Gorsuch, in a separate concurrence, stated there is no difference, and both types of regulations should be compensable.

Justice Kavanaugh, joined by Justice Kagan, does what he alway does: reaches out to address issues that are not present in the case. Specifically, as Justice Kavanaugh often does, he explains that which has been done before can continue to be done:

Importantly, therefore, today's decision does not address or prohibit the common government practice of imposing permit conditions, such as impact fees, on new developments through reasonable formulas or schedules that assess the impact of classes of development rather than the impact of specific parcels of property. Moreover, as is apparent from the fact that today's decision expressly leaves the question open, no prior decision of this Court has addressed or prohibited that longstanding government practice. Both Nollan and Dolan considered permit conditions tailored to specific parcels of property. See Dolan v. City of Tigard, 512 U. S. 374, 379–381, 393 (1994); Nollan v. California Coastal Comm'n, 483 U. S. 825, 828– 829 (1987). Those decisions had no occasion to address permit conditions, such as impact fees, that are imposed on permit applicants based on reasonable formulas or schedules that assess the impact of classes of development.

I am often struck by how often Justice Kavanaugh repeats himself. He will often ask the same question, nearly verbatim, during oral argument. And they're not really questions. They are statements which indicate how he will vote, and he simply asks the lawyers if they agree with him. Or, if a lawyer says something unexpected, Kavanaugh tries to make sure they are still on the same page.

Likewise, Justice Kavanaugh's opinions are remarkably repetitive. In a one paragraph concurrence, he manages to repeat the two key phrases verbatim: "permit conditions, such as impact fees" and "reasonable formulas or schedules that assess the impact of classes of development." Without saying so, Kavanuagh signaled that these "common government practices" are fine. I imagine these sorts of land use issue would come before the Chevy Chase Town Council or the Montgomery Country Zoning and Code Compliance Division.

Going forward, every single lower-court judge will now cite Kavanaugh in any case about "impact fees" and determine whether the formal or schedule are "reasonable." Justice Kavanaugh, without saying so, has reached out to decide a huge issue that was not present here. He truly cannot resist doing this.