Supreme Court Rules that Legislation Does Not Protect Improper Impact Fees

Legal
Published
Contact: Thomas Ward
[email protected]
VP, Legal Advocacy
(202) 266-8230

Following a unanimous decision handed down by the U.S. Supreme Court today, California home owners, builders and developers may now challenge improper local impact fees for housing development even if the fees are authorized by legislation.

The decision is a major victory for the home owner involved in the case as well as home builders and developers, especially in California. NAHB and the California Building Industry Association (CBIA) submitted two amicus briefs in the case supporting the home owner.

The case, Sheetz v. El Dorado County, involved George Sheetz, a California resident who in 2016 applied for a permit to build an 1,800-square-foot manufactured home on a residential-zoned lot he owned. The county imposed a $23,420 “traffic mitigation fee” on the permit. Sheetz protested the fee but ultimately paid it, and then immediately sued the county arguing the fee was improper.

At state court, Sheetz argued that the fee was not closely connected to or proportional to the actual impact his new residence would have on the roads, key tests laid out by precedent in two prior Supreme Court cases (commonly called the Nollan/Dolan test). The county countered that the test does not apply because the impact fee was authorized by legislation — from the county council in this case — rather than by bureaucracy.

A small number of state courts, including California’s, have carved out legal exceptions to the proportionality test if the fees in question are authorized by a legislative body, as opposed to simply a permitting board or other administrative office. El Dorado County argued that this arrangement protected the fees from challenges under the Takings Clause of the Fifth Amendment. The California state court sided with the county and Sheetz appealed to the Supreme Court.

NAHB and CBIA wrote in their amicus briefs that the Supreme Court has an opportunity to “make clear that there is no such ‘loophole’ in the prohibition against governmental demands for unconstitutional conditions.” An improper taking is improper even if approved by legislation.

All nine Supreme Court Justices agreed, with Justice Amy Coney Barrett writing the unanimous opinion. Justice Barrett wrote, “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.”

The narrow ruling kicked the case back down to lower courts to decide if Sheetz’s $23,420 fee was a taking, and thus, improper. It did not resolve larger questions about the way permitting and impact fees are calculated and structured. It did, however, provide an avenue for home owners, builders and developers to invoke the Takings Clause in challenges to impact fees in states where the fees are authorized by legislation.

The case may have a significant long-term impact on permitting fees for home development. NAHB will closely monitor fallout from the case and communicate directly with members.

Subscribe to NAHBNow

Log in or create account to subscribe to notifications of new posts.

Log in to subscribe

Latest from NAHBNow

Membership

Jul 21, 2025

NAHB Mourns Passing of Rick Herman

NAHB mourns the passing of Rick Herman, longtime Executive Officer of the Rochester Home Builders Association (RHBA) in New York. Rick joined RHBA 30 years ago and served as a tireless advocate for members in Rochester and around the state.

Construction Costs

Jul 18, 2025

Metals and Equipment Drove Material Prices Higher in June

Residential building material prices rose in June, driven primarily by higher construction machinery and equipment part prices, based on data from the most recent Producer Price Index (PPI). Metal commodities also experienced significant increases, following recently implemented tariffs on steel and aluminum.

View all

Latest Economic News

Economics

Jul 21, 2025

Use of Private Water and Sewer Systems in New Single-Family Homes

The share of new single-family homes built with individual septic systems declined slightly in 2024 compared to the previous year, while the share of homes served by private wells remained steady.

Economics

Jul 21, 2025

Sales of Lower-Priced New Single-Family Homes Declined Over the Past Five Years

From 2020 to 2024, sales of lower-priced new homes declined significantly as the market moved toward higher-priced segments. Rising construction costs—driven by inflation, supply chain disruptions, and labor shortages—as well as higher regulatory costs, made it increasingly difficult for builders to construct affordable homes.

Economics

Jul 18, 2025

State-Level Employment Situation: June 2025

Nonfarm payroll employment increased in 27 states in June compared to the previous month, while employment decreased in 23 states and the District of Columbia. According to the Bureau of Labor Statistics, nationwide total nonfarm payroll employment increased by 147,000 in June following a gain of 144,000 jobs in May.