The current U.S. Supreme Court uses a dizzying array of new and rarely used methods to make decisions (e.g., originalism, textualism, and the undefined “major question” doctrine). The selective use or disregard of these methods gives the Court considerable latitude to achieve favored political and ideological goals. Court observers note that the Court is taking on an expanded role, moving away from the executive branch, Congress, and administrative expertise, and becoming the unelected supreme power. Mark A. Lemley, The Reich Supreme Court136 Harv. Law Rev. F. 97 (Nov. 2022).
Sometimes the court overturns previous precedents that are the cornerstone of a stable judicial system. This judicial consistency is what legal experts call “stare decisis.” In the most egregious example, the three justices appointed by Trump helped overturn the 50-year-old Roe v. Wade decision on women’s reproductive rights, contrary to their confirmation testimony to Congress, in which they had acknowledged the importance of stare decisis and Roe’s precedent.
Despite a reduced caseload, the Court has selectively granted emergency motions and cases for review, including bypassing lower court review. It appears that the Court is using its discretion to take cases that offer the opportunity to advance an agenda. Because only four justices are required to take a case for review, many of these cases fail to attract a fifth justice needed to decide. Without agreement, the Court often remands the case to lower courts or rules on procedural grounds. Yet even these “non-decisions” suggest a thumbs up and perhaps a future controversial ruling being postponed for political reasons (e.g., after the 2024 election). Note the deliberate delay in the presidential immunity case without clear guidelines and the dismissal of the mifepristone case on procedural grounds. This creates judicial uncertainty and often provides a roadmap for a future case.
The Sheetz v. County of El Dorado case, which will be heard before the Supreme Court in April 2024 on property rights, is a prime example of a case being accepted for review and not reaching a final decision. This case received little media attention (except in real estate development circles). Although the case involves a development fee on new construction to fund greater road capacity, the ruling could have implications for land use planning and future financing options for infrastructure, including building resilient infrastructure to protect communities from extreme weather. The court’s non-decision (a remand to the California courts to reconsider the case based on the Court’s reasoning) is already compromised the ability of communities to manage land use, which is usually permitted under traditional police powers. The resulting legal uncertainty about the ability of states and localities to invest in new land-based infrastructure arises when extreme weather events caused by climate change impact landscapes. After decades of predictable weather patterns, communities struggle to manage and finance infrastructure to reduce flooding, ensure water supplies, 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 a key precedent favoring state authority in controlling local affairs, as well as a direction of state law policy under the current Court. After extensive study and public participation, California’s elected officials have passed laws for new development areas that require more road capacity. The development fee is a standard financing tool permitted 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 when the property restrictions imposed comply with the Fifth Amendment to the U.S. Constitution (the “expropriation clause”). The Supreme Court has overwhelmingly upheld the constitutionality of local land restrictions and funding for many local interests, such as incremental redevelopment, building new infrastructure (roads, sewers, stormwater control) in connection with new development, providing open space, protecting drinking water, preserving natural resources, promoting transit-oriented density, etc.
But after the court took the Sheetz property rights case for review, it could not get five justices to agree to apply the facts to a previous precedent it had used in similar land use permit cases. The court previously used a legal construct called “unconstitutional conditions” doctrine when reviewing land use permit cases. The application of the unconstitutional conditions doctrine under the Expropriation Clause was clearly defined in three decades-old Supreme Court cases (Nollan, Dolan, and Koontz). In Sheetz, however, the Court did not follow the previous criteria, creating legal uncertainty about the criteria required for an expropriation. Without clear new criteria, the Court has created yet another vague doctrine that sits alongside the similarly undefined main issue doctrine applied in West Virginia v. EPA’s Power Plant. Consider how different the underlying facts of Sheetz are from the Supreme Court’s reasoning and precedent in the previous three land use permit cases:
- In Sheetz, no property was expropriated. The unconstitutional conditions doctrine requires a threatened constitutional right, such as the Expropriation Clause. The previous three property permit cases all involved expropriation of land. While in one case (Koontz) money was at stake rather than a portion of the land expropriated, real estate was still at stake in the land permit negotiations. In Sheetz, there was no land at stake that could be expropriated by the government.
- Sheetz was subject to a fee. Courts place great importance on the collection of fees and taxes for municipal purposes and rarely consider them to be expropriation.
- In Sheetz, no administrative official was involved in the construction permit negotiations. Rather, elected political representatives in the legislative branch, after public input and consideration, carefully crafted legislation that establishes fixed fees in certain areas that impact the capacity of the new road infrastructure.
- Mr. Sheetz was not coerced. Rather, he voluntarily decided to purchase a property in a previously designated zone with a set development fee in order to build a home. In the three previous cases, the permitting officer’s request arose during negotiations with the respective property owner and thus amounted to pressure or coercion.
Under the Supreme Court’s previously established criteria for applying the unconstitutional conditions doctrine, the Court could have used the undisputed facts of Sheetz to agree with the state court’s ruling while refining the reasoning for the outcome. But five justices could not agree on whether expropriation occurred, much less how the facts of Sheetz fit into the unconstitutional conditions doctrine. Unable to reach agreement on how to extend property rights, the Court reversed the state’s ruling on its narrowly worded question—that there is no general statutory exception to the Expropriation Clause—and remanded the case to the state.
By failing to apply and reaffirm its previous criteria, the Court is creating uncertainty about the extent to which it will ultimately increase its control over state police actions to expand property rights. This uncertainty will lead to more litigation, slow infrastructure investment, and reduce funding for new public infrastructure to accommodate growth and protect communities from weather extremes. Early examples of these consequences can be found in a new publication from the American Bar Association. Smith, A., The Supreme Court Strengthens Its Commitment to Local Land Use: The Continuing Sheetz Saga, Natural Resources & Environment Journal, Vol. 39, No. 1 (Summer 2024).
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