Sheetz Update
WBPA Members and Friends,
Just the other day the entire United States Supreme Court ruled in favor of a Californian who was forced to pay $23,420 in traffic impact fees for installing a manufactured home on his land in rural El Dorado County.
The question posed to the court was whether a permit exaction is exempt from the unconstitutional-conditions doctrine as applied in Nollan/Dolan simply because it is authorized by legislation?
Justice Barrett, writing for the entire Court, seemingly took note of our amicus brief stating “The Takings Clause does not distinguish between legislative and administrative permit conditions,” and “In sum, there is no basis for affording property rights less protection in the hands of legislators than administrators. The Takings Clause applies equally to both—which means that it prohibits legislatures and agencies alike from imposing unconstitutional conditions on land-use permits.”
What does this mean for Washington property owners? Simply put all land use conditions must now meet the two tests as laid out in Nolan and Dolan:
- First, permit conditions must have an “essential nexus” to the government’s land-use interest, and
- Permit conditions must have “‘rough proportionality’” to the development’s impact on the land-use interest.
The requirement for an essential nexus is that “such conditions lack a sufficient connection to a legitimate land-use interest, they amount to “an out-and-out plan of extortion,” (Nolan). The rough proportionality rule requirement is due to a “permit condition that requires a landowner to give up more than is necessary to mitigate harms resulting from new development has the same potential for abuse as a condition that is unrelated to that purpose,” (Dolan).
If either of these potential government abuses start to sound familiar to you, you would be right.
Seattle's Mandatory Housing Affordability fee fails both tests.
The only reason put forward during its enactment for a nexus was that “building more homes creates homelessness.” Putting aside for one moment how absurd that is, it fails the essential nexus test. As for the rough proportionality, the MHA fee fails that test. The City itself has admitted on multiple occasions that the amount to be paid or provided is based on the “value” of the upzoning, rather than on the impacts, if any, of the proposed development upon any need for public housing.
Plainly, Seattle’s MHA fee is the “pay to play’ extortion that the Supreme Court ruled on Nolan. The ruling in Sheetz bodes well for ongoing litigation against Seattle's MHA fee.
In WBPA’s amicus brief, coauthored by the Citizens Action Defense Fund, we wrote: “the government cannot, without compensation, demand individuals surrender property (including money), or interests therein, for reasons unrelated to the uses for which they seek official approval, and in an amount that is not commensurate with the costs the public would shoulder as a result.”
We are happy to see that all nine justices of the Supreme Court of the United States agree with our position and protected your constitutional property rights.
Help us keep up the fight! Our association is currently engaged in impactful litigation, advocacy and elections work to protect the property rights of our commercial, retail and residential real estate members.
Pitch in now and help deliver more wins like this.
Our goal is to raise an additional $250,000 this year for our legal defense efforts.
Be part of a positive change for property rights in Washington State.