Here's the amicus brief filed yesterday by the National Federation of Independent Business Small Business Legal Center, joined by Owners' Counsel of America, in a case we've been following.
This case asks the Court to resolve a big outstanding issue: are legislatively-imposed exactions (however that term is defined) subject to the same high level of scrutiny under the Nollan-Dolan-Koontz test as are administratively-imposed exactions?
Our brief argues:
The Respondent, City of West Hollywood (“City”), forces property owners into the same unconstitutional dilemma which faced James and Marilyn Nollan, Florence Dolan, and Coy Koontz. Nollan v. California Coastal Comm’n., 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). Specifically, the Petitioners were forced to choose between their fundamental rights to either (a) obtain just compensation or (b) develop and use their property. Indeed, they were foreclosed from obtaining a building permit without dedicating significant monetary assets to fund the City’s affordable housing program—i.e., private property that the City could not have taken out right. 616 Croft Ave., LLC v. City of W. Hollywood, 3 Cal. App. 5th 621, 625 (Cal. Ct. App. 2016) (“The City calculates the ‘in-lieu’ fee according to a schedule developed via resolution by the West Hollywood City Council…”).While that permitting condition would have unquestionably been subject to a heightened standard of review, under Koontz, if imposed at the discretion of executive actors—the California courts held that a much more deferential standard should apply in this case solely because the condition was imposed by dictate of an enacted ordinance. 616 Croft Ave., 3 Cal. App. 5th at 625; Ehrlich v. City of Culver City, 12 Cal.4th 854, 860, 880–881 (Cal. 1996). But the constitutional injury is the same whether inflicted at the discretion of a lawless zoning commission or a legislative body indifferent to an individual’s constitutional rights. And the Takings Clause applies by the same terms regardless of which governmental entity has taken the lead in advancing confiscatory regulatory policies. See Lingle v. Chevron U.S.A., 544 U.S. 528 (2005); Stop the Beach Renourishment v. Flordia Dep’t. of Envtl. Prot., 560 U.S. 702 (2012).
Br. at 3-4.