Upending Local Legislative Control

Abstract

For nearly a century, local governments nationwide have crafted land-use laws in a legal environment that affords them deference and autonomy. Though zoning laws upheld by the Supreme Court as constitutional in Village of Euclid v. Ambler Realty Co. have a checkered history involving racial and socioeconomic discrimination, zoning reform has attempted to reduce such negative effects, leaving in place a framework where ordinary citizens are empowered to exercise their voices through their local legislatures without concern that unelected judges will interfere with how they choose to regulate the property in their own communities.

All of this is set to change in the wake of the Court’s 2024 decision, Sheetz v. County of El Dorado. There, the Court emphatically proclaimed that Takings Clause challenges to legislative and administrative land-use regulations are equally subject to heightened scrutiny under the Nollan/Dolan standard. The Court’s brief, sweeping, and unanimous opinion leaves several questions unanswered, as multiple concurrences illuminated. What of the “threshold question” of whether permit conditions would be a taking if they were imposed outside of the permitting context? Are class-based restrictions subject to the same heightened scrutiny as restrictions that target individual pieces of property? And, top of mind for many land-use scholars—does Sheetz tip a 100-year-old apple cart by suddenly subjecting all zoning regulation to heightened judicial scrutiny?

In this Article, I argue that Sheetz does have the potential to upend local legislative control by subjecting localized determinations such as zoning regulations to heightened Nollan/Dolan scrutiny. I show that Sheetz’s fatal flaw was that it conflated the question of whether legislative land-use restrictions are subject to the Takings Clause with the question of whether legislative land-use restrictions are subject to heightened Nollan/Dolan scrutiny. The two questions are not the same because the Court has a robust yet straightforward framework for analyzing Takings Clause claims that utilizes different tiers of scrutiny depending on whether the challenged government action creates a situation where the state can abuse its police power.

Thankfully, despite Sheetz’s shortcomings, all is not lost. This survey of various courts’ approaches to takings claims since Sheetz shows that there is a path forward that properly distinguishes between which legislative restrictions are subject to Nollan/Dolan and which ones are not. Accordingly, the Article ends with an analytical framework for future courts to use when determining what level of judicial scrutiny applies to the takings claim before them. By committing to give judicial deference to “the American people, through their elected representatives and appointed officials”1 courts will prevent the Sheetz decision from upending local legislative control.

Keywords: zoning, Village of Euclid, Sheetz, impact fees, Nollan/Dolan, Koontz, exactions, monetary fees, unconstitutional conditions, regulatory takings, judicial deference, judicial scrutiny, legislative scrutiny, Takings Clause