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In addition to Devilliers v. United States (which I discussed here), yesterday the Supreme Court decided to hear another case regarding the takeover clause: Sheetz v. El Dorado County. Here is the question raised in this case:

Whether the application for a building permit is exempt from the doctrine of unconstitutional conditions as applied in Nolan v. California Coastal Commission And Dolan v. City of Tigard, Oregon Simply because it is permitted by law.

in Nolan, Dolan, And Some later cases, the Supreme Court ruled that state and local governments sometimes violate the Takings Clause of the Fifth Amendment (which requires the payment of “just compensation” when the government seizes private property) when they impose extortions as a condition of allowing property owners to develop their land. Some lower courts – incl California Court of Appeals in this case– They emphasized that there is no obligation of acquisition condition in relation to land use infringements in cases where such condition has been imposed by legislation, rather than by executive officers or regulatory bodies.

Takeovers pose many difficulties. Supreme Court precedent in this area is far from a model of clarity. In many situations, under current precedent, it’s really hard to know whether or not a takeover has occurred.

But the issue raised by this case should be easy: there is and cannot be any “legislative exception” to liability under the takeover clause in cases where such liability might otherwise exist. The primary goal of the Bill of Rights—including the Takeover Clause—is to limit legislative impositions, no less than executive impositions. As the Supreme Court affirmed in its famous First Amendment decision in… West Virginia State Board of Education v. Barnett (1943), “The primary purpose of the Bill of Rights is to withdraw certain topics from the vicissitudes of political controversy, place them beyond the reach of majorities and officials, and establish them as legal principles to be applied by the courts.” Neither the takeover clause generally nor the takeover clause specifically constitute exceptions to this general principle.

Cato Institute Amicus curiae brief Urging the Court to hear this case addresses this key point in detail (unlike some other recent seizure cases, I did not participate in writing Cato’s brief in this case). It also explains why we cannot rely on the democratic process to effectively protect the rights of property owners in taking/development cases. I would add that many of the beneficiaries of new development are people who have been priced out of a certain area due to building restrictions, but would likely move there if developers were allowed to build new housing. This is the type of group that often has little or no influence over the political processes of local government.

But the Court need not even consider such issues of political economy. They can only rely on the basic principle that the primary purpose of constitutional rights is to impose limits on the political process, including legislatures.

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