i

No. _________________________
In the

Supreme Court of the United States
DARTMOND CHERK AND
THE CHERK FAMILY TRUST,
Petitioners,

v.
COUNTY OF MARIN,

Respondent.
On Petition for Writ of Certiorari
to the California Court of Appeal
PETITION FOR
WRIT OF CERTIORARI
BRIAN T. HODGES
Pacific Legal Foundation
255 S. King Street, Ste. 800
Seattle, WA 98104
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
E-mail: BTH@
pacificlegal.org

LAWRENCE G. SALZMAN*
*Counsel of Record
OLIVER J. DUNFORD
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
E-mail: LSalzman@
pacificlegal.org

Counsel for Petitioners
Dartmond Cherk and the Cherk Family Trust

 i
QUESTIONS PRESENTED
Marin County imposed a $39,960 “affordable
housing” fee as a condition of approving a permit to
divide a residential lot, absent any finding that the fee
was needed to mitigate adverse impacts of the
proposed development. Alternatively, the property
owner might have dedicated various non-possessory
interests in the property, other land, or low-cost
housing units off-site to satisfy the condition. The
court below held that neither the fee nor its
alternatives were subject to the unconstitutionalconditions doctrine, which requires land-use permit
conditions to bear an “essential nexus” and “rough
proportionality” to adverse public impacts of the
proposed development. Nollan v. Cal. Coastal
Comm’n, 483 U.S. 825, 837 (1987); Dolan v. City of
Tigard, 512 U.S. 374, 391 (1994); Koontz v. St. Johns
River Water Mgmt. Dist., 570 U.S. 595, 604 (2013).
The questions presented are:
1. Whether permit conditions are exempt from
review under the unconstitutional-conditions doctrine
when their intended purpose is not to mitigate
adverse impacts of a proposed development but to
provide unrelated public benefits?
2. Whether
the
unconstitutional-conditions
doctrine applies to such permit conditions when
imposed legislatively, as the high courts of Texas,
Ohio, Maine, Illinois, New York and Washington and
the First Circuit Court of Appeals hold; or whether
that scrutiny is limited to administratively imposed
conditions, as the high courts of Alabama, Alaska,
Arizona, California, Colorado, and Maryland and the
Tenth Circuit Court of Appeals hold?

 ii
LIST OF ALL PARTIES
Dartmond Cherk and the Cherk Family Trust are
the petitioners herein and were the petitionerplaintiffs in the California state trial, appellate, and
Supreme Court proceedings below.
The County of Marin, California, is the respondent
herein and was the respondent in the courts below.
CORPORATE DISCLOSURE STATEMENT
Petitioners are an individual and a family trust
that have no parent companies, subsidiaries, or
affiliates that are publicly owned corporations. No
publicly held corporation has any ownership interest
in the subject property or trust.

 iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
LIST OF ALL PARTIES ............................................ ii
CORPORATE DISCLOSURE STATEMENT ........... ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES.......................................vi
PETITION FOR WRIT OF CERTIORARI .................1
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
CONSTITUTIONAL PROVISIONS AND
ORDINANCE AT ISSUE ............................................2
STATEMENT OF THE CASE ....................................2
A. The County Applied Its
Development Code to Impose a $39,960
“Affordable Housing” Fee as a Condition
of Approval of the Cherks’ Lot-Split ................5
B. The Trial Court Holds That the Fee Is Not
Subject to Scrutiny Under Nollan/Dolan ........6
C. The California Court of Appeal Affirms,
Holding that Neither the Fee nor
Alternative Conditions Are Subject to
Nollan/Dolan Because they Are Not Intended
to Mitigate the Public Impact of the
Project and Are Legislatively Imposed ............7
REASONS FOR GRANTING THE WRIT ..................9
I.

CALIFORNIA COURTS REFUSE
TO RECOGNIZE WELL-SETTLED
PROPERTY RIGHTS, IN CONFLICT
WITH DECISIONS OF THIS COURT ................9

 iv
II. THE CALIFORNIA COURTS’
END-RUN AROUND NOLLAN, DOLAN,
AND KOONTZ RAISES IMPORTANT
QUESTIONS OF FEDERAL LAW
THAT ONLY THIS COURT CAN SETTLE ...... 17
A. The California Courts’ “Intended
Purpose” Exception to the Nollan, Dolan,
and Koontz Tests Fails to Secure
Property Owners’ Fifth Amendment
Rights Against Uncompensated Takings ...... 18
B. California’s Legislative Exactions Exception
Conflicts with Unconstitutional-Conditions
Decisions of this Court ................................... 21
III. STATE AND LOWER FEDERAL
COURTS ARE DIVIDED ON THE
QUESTION WHETHER THE NOLLAN AND
DOLAN TESTS APPLY TO EXACTIONS
MANDATED BY LEGISLATION ...................... 25
CONCLUSION .......................................................... 30

 v
APPENDIX
A.

Cherk, et al. v. County of Marin, No. A153579
(Cal. Ct. App. filed Dec. 14, 2018) (Opinion)

B.

Cherk, et al. v. County of Marin, No. 1602934
(Marin Cty. Super. Ct. filed Jan. 11, 2018)
(Notice of Entry of Judgment or Order)

C.

Cherk, et al. v. County of Marin, No. S253558
(Cal. filed Mar. 13, 2019) (Order Denying
Petition for Review)

D.

Marin County Development Code § 22.22.060

E.

Marin County Development Code § 22.22.090

 vi
TABLE OF AUTHORITIES
Cases
2910 Georgia Ave. LLC v. D.C.,
234 F. Supp. 3d 281 (D.D.C. 2017) ........................ 19
616 Croft Ave., LLC v. City of W. Hollywood,
3 Cal. App. 5th 621 (Ct. App. 2016),
cert. denied, 138 S. Ct. 377 (2017) ......................... 18
Alto Eldorado P’ship v. Cty. of Santa Fe,
634 F.3d 1170 (10th Cir. 2011).............................. 27
Armstrong v. United States, 364 U.S. 40 (1960) ...... 18
California Bldg. Indus. Ass’n v. City of San Jose,
61 Cal. 4th 435 (2015).................................... passim
California Bldg. Indus. Ass’n v. City of San Jose,
Cal., 136 S. Ct. 928 (2016) ......................... 21, 26, 29
City of Portsmouth, N.H. v. Schlesinger,
57 F.3d 12 (1st Cir. 1995) ...................................... 27
Commercial Builders of N. Cal. v. City of
Sacramento, 941 F.2d 872 (9th Cir. 1991) ...... 27-28
Curtis v. Town of South Thomaston,
708 A.2d 657 (Maine 1998) .................................... 27
Dabbs v. Anne Arundel Cty., 458 Md. 331,
cert. denied, 139 S. Ct. 230 (2018) ......................... 27
Dolan v. City of Tigard,
512 U.S. 374 (1994)........................................ passim
Ehrlich v. City of Culver City,
12 Cal. 4th 854 (1996)............................................ 26
Ex parte Quarg, 149 Cal. 79 (1906) .......................... 15
Frost v. Railroad Comm’n of State of California,
271 U.S. 583 (1926)................................................ 24

 vii
Garneau v. City of Seattle,
147 F.3d 802 (9th Cir. 1998).................................. 28
Gregory v. City of San Juan Capistrano,
191 Cal. Rptr. 47 (1983)......................................... 15
Home Builders Ass’n of Cent. Arizona v.
City of Scottsdale, 930 P.2d 993 (Ariz. 1997),
cert. denied, 521 U.S. 1120 (1997) ......................... 27
Home Builders Ass’n of Dayton & the Miami Valley
v. City of Beavercreek,
729 N.E.2d 349 (Ohio 2000) .................................. 27
Home Builders Ass’n of Greater Chicago
v. City of Chicago,
213 F. Supp. 3d 1019 (N.D. Ill. 2016).................... 18
Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015) ....... 15
Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595 (2013)........................................ passim
Koontz v. St. Johns River Water Mgmt. Dist.,
No. 11-1447, 2012 WL 3142655
(U.S. Aug. 1, 2012) ................................................. 22
Krupp v. Breckenridge Sanitation Dist.,
19 P.3d 687 (Colo. 2001) ........................................ 27
Lafayette Ins. Co v. French,
59 U.S. (18 How.) 404 (1855) ................................. 23
Laguna Royale Owners Ass’n v. Darger,
174 Cal. Rptr. 136 (1981)....................................... 15
Levin v. City & Cty. of San Francisco,
71 F. Supp. 3d 1072 (N.D. Cal. 2014).................... 28
Manocherian v. Lenox Hill Hosp.,
643 N.E.2d 479 (N.Y. 1994),
cert. denied, 514 U.S. 1109 (1995) ......................... 27

 viii
Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) ........ 23
Mead v. City of Cotati,
389 Fed. App’x 637 (9th Cir. 2010) ....................... 27
Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241 (1974)................................................ 23
Nollan v. Cal. Coastal Comm’n,
483 U.S. 825 (1987)........................................ passim
Northern Illinois Home Builders Ass’n, Inc. v.
Cty. of Du Page, 649 N.E.2d 384 (Ill. 1995) .......... 27
Old Dearborn Distrib. Co. v. Seagram Distillers
Corp., 299 U.S. 183 (1936) ..................................... 15
Parking Ass’n of Georgia, Inc. v. City of Atlanta, Ga.,
515 U.S. 1116 (1995).................................. 26, 28-29
Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922)................................................ 19
San Remo Hotel L.P. v. City & Cty. of San Francisco,
27 Cal. 4th 643 (2002)...................................... 26-27
Sherbert v. Verner, 374 U.S. 398 (1963) ................... 23
Speiser v. Randall, 357 U.S. 513 (1958) ................... 24
Spinell Homes, Inc. v. Municipality of Anchorage,
78 P.3d 692 (Alaska 2003) ..................................... 27
St. Clair Cty. Home Builders Ass’n v. City of Pell
City, 61 So. 3d 992 (Ala. 2010) .............................. 27
Sterling Park, L.P. v. City of Palo Alto,
57 Cal. 4th 1193 (2013).......................................... 15
Town of Flower Mound, Tex. v. Stafford Estates
Ltd. P’ship, 135 S.W.3d 620 (Tex. 2004) ............... 27
Trimen Development Co. v. King Cty.,
877 P.2d 187 (Wash. 1994) .................................... 27

 ix
Wooster v. Dep’t of Fish & Game,
211 Cal. App. 4th 1020 (2012) ............................... 16
Federal Statute
28 U.S.C. § 1257(a) ......................................................1
State Statute
Cal. Civ. Code § 711 .................................................. 16
Federal Constitution
U.S. Const. amend. V ..................................................2
U.S. Const. amend. XIV, § 1 .......................................2
Marin County Regulations
MCC § 22.22.060 ................................................... 8, 14
MCC § 22.22.060(A)(1) .............................................. 14
MCC § 22.22.060(A)(2) .............................................. 14
MCC § 22.22.080(A)-(C) ............................................ 15
MCC § 22.22.080(G) .................................................. 14
MCC § 22.22.090 ................................................... 2, 14
MCC § 22.22.090(A) .............................................. 8, 14
MCC § 22.22.090(B) .................................................. 14
MCC § 22.22.120(B) .................................................. 15
MCC § 22.22.120(B)(1)-(2)......................................... 15
MCC § 22.22.120(B)(5) .............................................. 15
Miscellaneous
Burling, James S. & Owen, Graham,
The Implications of Lingle on Inclusionary Zoning
and other Legislative and Monetary Exactions,
28 Stan. Envtl. L.J. 397 (2009) ............................. 25

 x
Callies, David L., Regulatory Takings & the Supreme
Court: How Perspectives on Property Rights Have
Changed from Penn Central to Dolan, and What
State and Federal Courts Are Doing About It,
28 Stetson L. Rev. 523 (1999) .......................... 24-25
Fla. Dep’t of Env. Reg., Policy for “Wetlands
Preservation-as-Mitigation” (June 20, 1988)........ 22
Haskins, Steven A., Closing the Dolan Deal—
Bridging the Legislative/Adjudicative Divide,
38 Urb. Law. 487 (2006) ........................................ 25
Taylor, Mac, California’s High Housing Costs:
Causes and Consequences, Legislative Analyst’s
Office (2015), http://www.lao.ca.gov/reports/
2015/finance/housing-costs/housing-costs.pdf ........2

 1
PETITION FOR WRIT OF CERTIORARI
Dartmond Cherk and the Cherk Family Trust (the
Cherks) respectfully request that this Court issue a
writ of certiorari to review the judgment of the
California Court of Appeal, First Appellate District,
Division One.

OPINIONS BELOW
The unreported opinion of the California Court of
Appeal is available at Cherk v. Cty. of Marin,
No. A153579, 2018 WL 6583442 (Cal. Ct. App.
Dec. 14, 2018), review denied Mar. 13, 2019, and is
reproduced in Petitioner’s Appendix (Pet. App.) A. The
unreported opinion of the Superior Court of Marin
County, Case No. CIV1602934 (filed Dec. 6, 2017) is
reproduced in Pet. App. B. The California Supreme
Court order denying review appears in Pet. App. C.

JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C.
§ 1257(a). The Cherks brought suit on the basis of the
Fifth and Fourteenth Amendments to the United
States Constitution, alleging that Marin County
violated the unconstitutional-conditions doctrine by
requiring a $39,960 “affordable housing” fee as a
condition of receiving a permit to change the use of
their land. The California Court of Appeal ruled
against the Cherks on December 14, 2018. The matter
became final on March 13, 2019, when the California

 2
Supreme Court denied review of the decision. This
petition is timely pursuant to Rule 13.

CONSTITUTIONAL PROVISIONS AND
ORDINANCE AT ISSUE
The Takings Clause of the United States
Constitution provides that “private property [shall
not] be taken for public use without just
compensation.” U.S. Const. amend. V. This guarantee
is made applicable to the states by the Fourteenth
Amendment, which provides, in relevant part, that no
state shall “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const.
amend. XIV, § 1. The “affordable housing” ordinance
at the center of the case is Marin County Code (MCC)
§ 22.22.090.

STATEMENT OF THE CASE
For decades California has suffered from a chronic
housing shortage, due in large measure to the refusal
of local governments to permit enough housing
construction to meet a rising population. 1 The result
is a severe lack of affordable homes for people of low
and moderate income, a problem which the state has
recognized as a serious detriment to the social and
economic well-being of its citizens. See California
Bldg. Indus. Ass’n v. City of San Jose, 61 Cal. 4th 435,
1 See Mac Taylor, California’s High Housing Costs: Causes
and Consequences, Legislative Analyst’s Office 10–12 (2015),
http://www.lao.ca.gov/reports/2015/finance/housing-costs/housin
g-costs.pdf.

 3
441 (2015) (CBIA). A growing number of cities and
counties have enacted “inclusionary housing”
ordinances aimed at increasing the amount of housing
available to low-income residents. Typical ordinances
require developers to dedicate the subject property to
“affordable housing,” exacting various non-possessory
property interests for public use, or to pay money or
transfer other land or housing units to the
government as a condition of government approval of
a land-use permit.
Marin County applied its inclusionary housing
ordinance here, requiring the Cherks to pay a $39,960
“affordable housing” fee as a condition of receiving a
permit to split their undeveloped residential lot in
two. It was undisputed that the Cherks’ lot-split
neither caused nor had an adverse impact on the
region’s affordable housing problem; the County in
fact acknowledged that the lot-split would increase
the amount of land available for housing in the area.
Pet. App. B at 20.
This Court’s precedent holds that land-use permit
conditions “burden[ing] [the] ownership of a specific
parcel of land,” such as the one at issue here, are
subject to a “special application” of the
unconstitutional-conditions doctrine. Koontz v.
St. Johns River Water Mgmt. Dist., 570 U.S. 595, 613
(2013). Under this doctrine, conditions imposing
monetary exactions or dedications of property must
bear an “essential nexus” and “rough proportionality”
to adverse public impacts of the proposed
development. Nollan v. Cal. Coastal Comm’n, 483
U.S. 825, 837 (1987); Dolan v. City of Tigard, 512 U.S.
374, 391 (1994); Koontz, 570 U.S. at 604.

 4
The County’s permit condition “implicates the
central concern of Nollan and Dolan: the risk that the
government may use its substantial power and
discretion in land-use permitting to pursue
governmental ends that lack an essential nexus and
rough proportionality to the effects of the proposed
new use of the specific property at issue,” Koontz, 570
U.S. at 613, thereby taking an otherwise protected
property interest without compensation.
The court below determined, however, that the
tests set out in Nollan, Dolan, and Koontz do not
apply: First, because the County’s demands were not
intended by the County to mitigate any adverse public
impacts of the Cherks’ lot-split, but rather “‘to
advance purposes beyond mitigating the impacts . . .
attributable to [their] particular development.’” Pet.
App. A at 16 (quoting CBIA, 61 Cal. 4th at 474)
(emphasis added); second, following a long line of
California cases, because “legislatively prescribed
monetary fees—as distinguished from ad hoc
monetary demands by an administrative agency”—
are not subject to the unconstitutional-conditions
tests. Id. at 23 (quotation marks and citation omitted).
These conclusions are in apparent conflict with the
decisions of this Court on an important and
unresolved question with respect to the first matter
and deepen a long-standing, nationwide split among
lower courts with respect to the second.

 5
A. The County Applied Its
Development Code to Impose a $39,960
“Affordable Housing” Fee as a Condition
of Approval of the Cherks’ Lot-Split
In the year 2000, the Cherks applied to the County
to divide a vacant 2.79-acre parcel of land that had
been in their family for several generations into two,
single-family residential lots. Pet. App. A at 2–3. In
2003, while the permitting process was ongoing, the
County amended its “affordable housing regulations,”
contained in Title 22 (Development Code) of the Marin
County Code. Id. at 3. For small lot-split projects like
the Cherks’, the amended Development Code states
that “the project applicant shall pay an in-lieu fee” to
the County for the purpose of affordable housing. Id.
at 3–4.
The permitting process stalled but resumed in fits
and starts for various reasons over the course of
several years, until the County granted approval of
the subdivision in December 2007. Pet. App. A at 5.
The approval was conditioned on the Cherks’ payment
of the $39,960 fee, pursuant to the formula described
by the Development Code. Id. The County made no
findings that the Cherks’ project caused or
exacerbated the region’s affordable housing problem.
To the extent it made any relevant findings, it
determined that “[t]he project would result in a future
increase in the availability of housing opportunities in
an existing residential area.” Pet. App. B at 20
(emphasis added).
The Cherks obtained several extensions of time to
pay the fee and record a required parcel map that
would complete the process, and, in July 2015, they
paid the fee under protest and recorded the parcel

 6
map. In February 2016, an attorney for the Cherks
wrote the County asking for a refund of the fee, on the
ground that it was an unlawful monetary exaction.
The County did not respond. Pet. App. A at 6.
B. The Trial Court Holds That the Fee Is Not
Subject to Scrutiny Under Nollan/Dolan
In August 2016, the Cherks filed an action in the
Marin County Superior Court for a refund of the fee,
alleging it to be an unconstitutional condition under
the doctrine set out in Nollan, Dolan, and Koontz. Pet.
App. A at 6–7. They moved for judgment on the
questions whether the County’s monetary exaction
violated either the state’s Mitigation Fee Act or the
federal unconstitutional-conditions doctrine. Id.
With respect to the unconstitutional-conditions
claim, the trial court’s ruling contained two holdings.
First, the court held that the “fee imposed as a
condition for approval of Petitioners’ project does not
impose a ‘monetary exaction’ subject to” the
unconstitutional-conditions-test. Pet. App. B at 36.
The court found that the fee was “not a development
impact fee intended to defray the public burden
directly caused by” the lot-split and therefore not an
exaction within the meaning of Nollan and Dolan. Id.
at 8. It was, rather, a mere “land use restriction[]”
subject to rational basis review. Id. at 34. The court
relied heavily on the California Supreme Court’s
analysis of the affordable-housing program at issue in
CBIA, which similarly exempted the City of San Jose’s
permit conditions from review under Nollan because
they were purportedly “intended to advance purposes
beyond mitigating adverse public impacts or effects
that [we]re attributable to a particular development
and instead to produce a widespread public benefit.”

 7
Id. at 24–25 (internal quotation marks and citations
omitted). Second, the trial court ruled that
“legislatively prescribed monetary fees that are
imposed as a condition of development are not subject
to the Nollan/Dolan test.” Id. at 35 (quoting CBIA, 61
Cal. 4th at 4[59] n.11).
C. The California Court of Appeal Affirms,
Holding that Neither the Fee nor
Alternative Conditions Are Subject to
Nollan/Dolan Because they Are Not
Intended to Mitigate the Public Impact of
the Project and Are Legislatively Imposed
The California Court of Appeal affirmed the trial
court; also following CBIA, it concluded that fees and
other inclusionary housing permit conditions
intended to “produce a widespread public benefit” are
not exactions at all and are therefore beyond the
ambit of Nollan, Dolan, and Koontz’s holdings. Pet.
App. A at 16 (quotation and citation omitted). The
Court of Appeal also concurred with the trial court
that “‘legislatively prescribed monetary fees’—as
distinguished from ad hoc monetary demands by an
administrative agency—‘that are imposed as a
condition of development are not subject to the
Nollan/Dolan test.’” Id. at 23 (quoting CBIA, 61 Cal.
4th at 459 n.11).
The appellate court went further, however,
hinging its ruling on its interpretation of the County’s
Development Code and concluding that the fee paid by
the Cherks “is not subject to the unconstitutional
conditions doctrine because there were alternative
means of complying with the inclusionary housing
ordinance that did not violate Nollan/Dolan.” Pet.
App. A at 23–24. Here, the court referred to the

 8
uncontroversial proposition in Koontz that “so long as
a permitting authority offers the landowner at least
one alternative [to the money condition] that would
satisfy Nollan and Dolan, the landowner has not been
subjected to an unconstitutional condition.” Id. at 13
(quoting Koontz, 570 U.S. at 611).
According to the Court of Appeal, the Cherks
might have satisfied the County’s affordable housing
condition by satisfying one of several alternatives to
paying a fee. First, it said, the Cherks could have
ignored the written demand for the in-lieu fee
contained in the County’s final permit approval and
instead chosen to “round up” the calculation under
Section 22.22.090(A) of the Development code. By
doing so, they might have avoided paying the fee by
dedicating one full lot in perpetuity to affordable
housing and submitting to an exaction of various nonpossessory property interests in the subject property.
Pet. App. A at 20. The court assumed without
substantial analysis that these conditions would not
violate Nollan/Dolan. It also reviewed “other sections
of the Development Code” to suggest “alternatives to
the requirement of dedicating onsite units for
affordable housing purposes” that the Cherks might
have pursued. Those options included dedicating and
“construct[ing] [] affordable housing units offsite” or
“dedicati[ng] [] other lots of suitable real property to
the County.” Id. at 21 (citing Marin County Code
§ 22.22.060). Because the court believed none of these
conditions burdening the Cherks’ ownership of their
specific parcel constituted exactions within the
meaning of Nollan and Dolan, it held that the fee paid
by the Cherks was “not subject to the unconstitutional
conditions doctrine.” Id. at 23.

 9
The Cherks filed a petition for review in the
California Supreme Court, which was denied. Pet.
App. C. They respectfully ask this Court to issue a
writ of certiorari to clarify the important questions of
federal law at issue.

REASONS FOR GRANTING THE WRIT
I.
CALIFORNIA COURTS REFUSE
TO RECOGNIZE WELL-SETTLED
PROPERTY RIGHTS, IN CONFLICT
WITH DECISIONS OF THIS COURT
The California Court of Appeal’s decision adopted
two rules that categorically exclude discrete and wellrecognized property interests from the protections of
the Fifth Amendment and the doctrine of
unconstitutional conditions. First, it said that landuse permit conditions are not subject to the
unconstitutional-conditions doctrine where they
impose burdens intended to provide broad public
benefits rather than to mitigate adverse impacts of a
proposed change in land use. Pet. App. A at 18.
Second, it said that such conditions are never subject
to the doctrine when they are imposed legislatively
and not ad hoc by administrative agencies. Id. at 23.
In doing so, the court’s ruling directly conflicts with
the precedent of this Court and leaves property
owners vulnerable to the type of government coercion
and uncompensated takings of legally cognizable
property interests that the unconstitutionalconditions doctrine is intended to prevent.

 10
The nexus and rough proportionality tests are
important safeguards of private property rights in the
context of land-use permitting. Koontz, 570 U.S.
at 612; see also Nollan, 483 U.S. at 833 n.2 (“[T]he
right to build on one’s own property—even though its
exercise can be subjected to legitimate permitting
requirements—cannot remotely be described as a
‘governmental
benefit.’”).
The
tests
protect
landowners by recognizing the limited circumstances
in which the government may lawfully condition
permit approval upon the dedication of a property
interest to the public: (1) the government may require
a landowner to dedicate property to a public use only
where the dedication is necessary to mitigate for the
negative impacts of the proposed development on the
public; and (2) the government may not use the permit
process to coerce landowners into giving property to
the public that the government would otherwise have
to pay for. Koontz, 570 U.S. at 604–06; see also Dolan,
512 U.S. at 385 (“[G]overnment may not require a
person to give up the constitutional right . . . to
receive just compensation when property is taken for
a public use [] in exchange for a discretionary benefit
[that] has little or no relationship to the property.”).
Nollan and Dolan require this heightened scrutiny
since landowners “are especially vulnerable to the
type of coercion that the unconstitutional-conditions
doctrine prohibits because the government often has
broad discretion to deny a permit that is worth far
more than property it would like to take.” Koontz, 570
U.S. at 605; see also id. at 607 (“Extortionate demands
for property in the land-use permitting context run
afoul of the Takings Clause not because they take
property but because they impermissibly burden the

 11
right not to have property taken without just
compensation.”).
In Nollan, the California Coastal Commission,
acting pursuant to mandates of state legislation,
required the Nollan family to dedicate an easement
over a strip of their private beachfront property as a
condition of obtaining a permit to rebuild their home.
483 U.S. at 827–28. The Commission justified the
condition on the grounds that “the new house would
increase blockage of the view of the ocean, thus
contributing to the development of ‘a “wall” of
residential structures’ that would prevent the public
‘psychologically . . . from realizing a stretch of
coastline exists nearby that they have every right to
visit,’” and would “increase private use of the
shorefront.” Id. at 828–29 (quoting state agency staff
report). The Nollans refused to accept the condition
and brought a federal takings claim against the
Commission in state court, arguing that the condition
constituted a taking because it bore no logical
connection to the impact of their proposed
development.
This Court agreed, holding that because the
easement condition lacked an “essential nexus” to the
alleged public impacts that would result from the
Nollans’ project, it was an unconstitutional taking. Id.
at 837. Because the Nollans’ home would have no
impact on public-beach access, the Commission could
not justify a permit condition requiring them to
dedicate an uncompensated easement over their
property. Id. at 838–39. Without a constitutionally
sufficient connection between a permit condition and
a project’s alleged impact, the easement condition was

 12
“not a valid regulation of land use but ‘an out-and-out
plan of extortion.’” Id. at 837 (citations omitted).
In Dolan, this Court clarified how close a “fit” is
required between a permit condition and the alleged
public impact of a proposed land use. There, the city
imposed conditions on Florence Dolan’s permit to
expand her plumbing and electrical supply store,
requiring her to dedicate some of her land for floodcontrol improvements and a bicycle path. 512 U.S.
at 377. Dolan refused to comply with the conditions
and sued the city in state court. This Court held that
although the city established a nexus between both
conditions and Dolan’s proposed expansion, the
conditions were nevertheless unconstitutional. Even
when a nexus exists, there still must be a “degree of
connection between the exactions and the projected
impact of the proposed development.” Id. at 386.
There must be rough proportionality—i.e., “some sort
of individualized determination that the required
dedication is related both in nature and extent to the
impact of the proposed development.” Id. at 391
(footnote omitted). The Dolan Court held that the city
had not demonstrated that the conditions were
roughly proportional to the impact of Dolan’s land-use
change and invalidated the permit conditions. Id.
In Koontz, this Court held that fees imposed “in
lieu” of the dedication of property must also comply
with the nexus and proportionality requirements. In
that case, a government permitting agency
conditioned the approval of Coy Koontz’s application
to develop a portion of his commercially-zoned
property. 570 U.S. at 601–04. The agency demanded
that Koontz either dedicate 13.9 acres of his land or
pay a fee in lieu of the additional demanded property.

 13
Id. at 601–02. Koontz objected to the condition and the
agency denied his application. Id. at 602–03. On
review, this Court confirmed that an in-lieu fee is
often the “functional[] equivalent” of a property
exaction. Id. at 612. Thus, courts considering a
monetary-exactions claim must first analyze the
entire demand imposed by the government to
determine whether “it would transfer an interest in
property from the landowner to the government.” Id.
at 615. If so, then the in-lieu fee constitutes an
exaction subject to the nexus and proportionality
tests.
In the case at hand, Marin County conditioned the
Cherks’ land-use permit on payment of an in-lieu fee.
The court below exempted that fee from scrutiny
under the nexus and proportionality tests by finding
that the Cherks could have avoided the fee by
submitting to alternative demands. Pet. App. A at 20–
23. The court, however, glossed over the important
step of considering whether those alternative
demands themselves violated the nexus and
proportionality tests. It merely assumed that they
were, without analysis, by likening them to the
conditions considered in CBIA, with the conclusory
statement that the alternatives were mere
“regulation[s] of the use of land.” Id. at 20.
In conflict with decisions of this Court, the court
below failed to acknowledge that each of the purported
alternatives required the Cherks to transfer wellrecognized property interests to the County without
compensation. The County forced the Cherks to either
pay a fee that violated the standards of Koontz, or
submit to an exaction of property interests that
violated the standards of Nollan and Dolan. In

 14
constitutional terms, that is no choice at all—and
certainly not a set of alternatives that insulates the
County’s demand from the unconstitutionalconditions tests.
Specifically, the County’s inclusionary housing
ordinance requires landowners to choose between
(1) the dedication of 20 percent of the total number of
lots to affordable housing (MCC § 22.22.090(A)),
which, as discussed below, exacts several discrete,
non-possessory property interests; and (2) paying a
fee in-lieu of the above dedication (MCC
§ 22.22.090(B)), which is used by the County to
further its affordable-housing program (See MCC
§ 22.22.080(G)). See Pet. App. E at 1–2 (MCC
§ 22.22.090).
The court below suggested two further alternatives
that might have been available to the Cherks: (3) “the
construction of affordable units offsite [MCC
§ 22.22.060(A)(1)],” which would result in the same
exactions of non-possessory interests as the lotdedication noted above in the first option; and (4) “the
dedication of other lots of suitable real property to the
County or its designee to develop the required
inclusionary units [MCC § 22.22.060(A)(2)].” Pet. App.
A at 21–22. See also Pet. App. D at 1–2 (MCC
§ 22.22.060). While the Court of Appeal did not engage
in any substantive analysis of these conditions, each
and every one of them independently exacts legally
cognizable property interests and fails the
unconstitutional-conditions tests set out by Nollan,
Dolan, and Koontz.
As to the first option, and as referenced in the
County’s ordinances, dedicating a lot to affordable

 15
housing exacts several discrete, non-possessory
property interests cognizable under precedents of this
Court and California property law: (a) the grant of a
perpetual purchase option to the County (MCC
§ 22.22.120(B)(5)); (b) the abridgement of the right to
freely alienate property and set its price (MCC
§ 22.22.120(B)(1)-(2)); and (c) the creation of a
beneficial interest in the dedicated lots (or housing
units developed on those lots) in favor of the County,
which is valued at the difference between the market
value and the County-designated “affordable” price of
the property, and which is secured by a recorded
agreement akin to a covenant or negative servitude
(see MCC § 22.22.080(A)-(C) & MCC § 22.22.120(B))
(controlling the eligible purchasers, renters, resales,
and price in perpetuity). 2
2 California property law recognizes and protects each of
these interests. First, under California law, owners have a right
to sell their property to whomever they choose, at a price they
choose—which places value on the purchase option or right of
first refusal imposed by the County’s ordinance. See Sterling
Park, L.P. v. City of Palo Alto, 57 Cal. 4th 1193, 1207 (2013) (a
purchase option is a protected property right); Gregory v. City of
San Juan Capistrano, 191 Cal. Rptr. 47, 58 (1983) (a right of first
refusal is a property right); see also Horne v. Dep’t of Agric., 135
S. Ct. 2419, 2429 (2015) (finding a taking even where the
government shares the sale proceeds of seized raisins because
“the growers lose any right to control their disposition”); Old
Dearborn Distrib. Co. v. Seagram Distillers Corp., 299 U.S. 183,
191–92 (1936) (“[T]he right of the owner of property to fix the
price at which he will sell it is an inherent attribute of the
property itself, and as such is within the protection of the Fifth
and Fourteenth Amendments.”); Laguna Royale Owners Ass’n v.
Darger, 174 Cal. Rptr. 136, 144 (1981) (recognizing an owner’s
right to use and dispose of property as he chooses); Ex parte
Quarg, 149 Cal. 79, 80 (1906) (An owner of property has a “clear
right to dispose of it, to sell it to whom he pleases and at such

 16
Because the first option—the dedication of a lot to
affordable housing—constitutes an exaction of
protected property interests subject to the Nollan and
Dolan tests, the second option of an “in-lieu” fee is
similarly subject to review. See Koontz, 570 U.S.
at 612 (monetary exactions are subject to Nollan and
Dolan tests). Moreover, option three—the dedication
of housing units—exacts the same protected nonpossessory property interests as option one except
that it imposes those burdens offsite rather than on
the subject property. This difference “does not obviate
the need to determine whether the demand for offsite
mitigation satisfied Nollan and Dolan.” Id. at 611.
And option four is a simple demand for land
(unrelated to the Cherks’ proposed project) in
exchange for a permit, which triggers the application
of Nollan and Dolan.
The state court’s holding thus failed to protect
well-recognized property rights from being indirectly
taken without compensation. Now, in California,
land-use permit conditions are not subject to
heightened scrutiny when they impose burdens
intended to provide broad public benefits unrelated to
the proposed change in land use. Pet. App. A at 16.
Further, these conditions, when they are imposed by
legislative mandate, are never subject to the
price as he can obtain.”); Cal. Civ. Code § 711 (a property owner
has the right to freely alienate property, and to be free from
unreasonable restraints on alienation of property).
The right to enforce a covenant is also a protected property
right. See, e.g., Wooster v. Dep’t of Fish & Game, 211 Cal. App.
4th 1020, 1026 (2012) (holding that conservation easements
imposing covenants on the terms of use of property are protected
property interests for takings purposes).

 17
unconstitutional-conditions doctrine. Pet. App. A
at 23. These rulings warrant review because they are
in violation of the Fifth Amendment, the
unconstitutional-conditions doctrine, and this Court’s
precedent.
II.
THE CALIFORNIA COURTS’
END-RUN AROUND NOLLAN, DOLAN,
AND KOONTZ RAISES IMPORTANT
QUESTIONS OF FEDERAL LAW THAT
ONLY THIS COURT CAN SETTLE
An exaction of money or property conditioning the
use of a specific parcel of land “implicates the central
concern of Nollan and Dolan: the risk that the
government may use its substantial power and
discretion in land-use permitting to pursue
governmental ends that lack an essential nexus and
rough proportionality to the effects of the proposed
new use of the specific property at issue,” Koontz, 570
U.S. at 614, thereby taking an otherwise protected
property interest without compensation.
In this case, the County’s demand for a fee was
triggered by the Cherks’ application to change the use
of their land. The court below, following a line of
California “affordable housing” cases, sidestepped
Nollan and Dolan by focusing on the reason why the
County demanded a property interest (to provide
broad public benefits) and on how it was demanded
(by legislative mandate vs. ad hoc administrative
demand) rather than the circumstances that triggered
the Cherks’ obligation to pay. The court’s holdings
allow local governments to leverage the land-use
permitting process to force individual property owners
to bear the cost of an affordable-housing program that

 18
would otherwise (and should) be borne by the public
as a whole. The Takings Clause is aimed at curtailing
just that kind of government action. See Armstrong v.
United States, 364 U.S. 40, 49 (1960).
The California courts have created exceptions to
Nollan, Dolan, and Koontz that undermine the
Takings Clause, exceptions that only this Court can
resolve.
A. The California Courts’ “Intended
Purpose” Exception to the Nollan,
Dolan, and Koontz Tests Fails to Secure
Property Owners’ Fifth Amendment
Rights Against Uncompensated Takings
The prevailing rule in California is that Nollan
and Dolan’s heightened scrutiny applies only “to fees
whose purpose is to mitigate the effects or impacts of
the development on which the fee is imposed,” and not
to permit conditions “intended to advance purposes
beyond mitigating the impacts or effects that are
attributable to a particular development.” CBIA, 61
Cal. 4th at 472, 474; see also 616 Croft Ave., LLC v.
City of W. Hollywood, 3 Cal. App. 5th 621, 629 (Cal.
Ct. App. 2016), cert. denied, 138 S. Ct. 377 (2017)
(Nollan and Dolan do not apply because “the purpose
of the in-lieu housing fee here is not to defray the cost
of increased demand on public services resulting from
Croft’s specific development project, but rather to
combat the overall lack of affordable housing.”).
Other courts have followed California’s lead in
creating this exception to Nollan and Dolan. See, e.g.,
Home Builders Ass’n of Greater Chicago v. City of
Chicago, 213 F. Supp. 3d 1019, 1024 (N.D. Ill. 2016)
(Nollan/Dolan do not apply to a demand that a

 19
developer pay a fee or set aside housing units for lowincome tenants as a condition of permit); 2910 Georgia
Ave. LLC v. D.C., 234 F. Supp. 3d 281, 305 (D.D.C.
2017) (citing CBIA as persuasive against a claim that
an inclusionary-housing program in D.C. constitutes
an unlawful exaction). This “intended purpose”
exception to the unconstitutional-conditions doctrine
fails to secure property owners’ Fifth Amendment
rights against uncompensated takings.
When the government requires a property owner
to give up money or other property interest as a
condition of a land-use permit, it bears the hallmarks
of an exaction. Koontz, 570 U.S. at 613. Yet, when a
permit condition purports to advance broad public
purposes totally unrelated to the proposed land-use
change, California will not treat the condition as an
exaction. This leads to absurd results. A
municipality’s demand will be subject to heightened
scrutiny (only) when the government admits that its
condition is aimed at mitigating an adverse public
impact of a proposed project; yet it enjoys mere
rational basis review when it purports to use the
permit process for a worse, arbitrary purpose—i.e., to
take property for a purpose totally unrelated to any
public impact attributable to the project.
A determination that a permit condition serves a
broad public need, however, cannot justify an
appropriation of private property for public use
without compensation, absent any showing that it
mitigates the adverse public impact of the project. See
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416
(1922) (“[A] strong public desire to improve the public
condition is not enough to warrant achieving the
desire by a shorter cut than the constitutional way of

 20
paying for the change.”). By designating a broad
public need for “affordable housing” as the
determinative factor on which to decide whether an
exaction has occurred, the California rule places
property owners in just the vulnerable position that
the unconstitutional-conditions doctrine aims to
prevent. The nexus and proportionality analysis is
necessary to determine whether a development
condition is “merely being used as an excuse for taking
property simply because at that particular moment
the landowner is asking the city for some license or
permit.” Dolan, 512 U.S. at 390 (quotation and
citation omitted).
This case presents that risk starkly. Simply put,
the Cherks wanted to change the use of their property.
That change caused no adverse impact warranting
mitigation; yet the County leveraged its permitting
power to take a large cash payment from them as a
condition of allowing the change in use. Had the
County made this demand outside the permitting
process, it would have been a per se taking of the
Cherks’ property. Koontz, 570 U.S. at 612. The County
is able to accomplish its objective without
compensation here only because the denial of the
Cherks’ right to the ordinary and productive use of
their property would have caused even greater
financial pain. Id. at 605. The California courts have
endorsed this end-run around the Takings Clause by
refusing to apply Nollan and Dolan to so-called
“affordable housing” permit conditions.

 21
B. California’s Legislative Exactions Exception
Conflicts with Unconstitutional-Conditions
Decisions of this Court
In a recent denial from certiorari on the question
whether legislatively-mandated exactions are exempt
from scrutiny under Nollan, Dolan, and Koontz,
Justice Thomas “doubt[ed] that ‘the existence of a
taking should turn on the type of government entity
responsible for the taking.’” California Bldg. Indus.
Ass’n v. City of San Jose, 136 S. Ct. 928, 928 (2016)
(Thomas, J., concurring in denial of certiorari)
(citation omitted). This doubt is well-founded because
this Court has not generally drawn any distinction
between legislative and adjudicative exactions.
The Nollan, Dolan, and Koontz cases all involved
conditions mandated by general legislation—a fact
noted in each opinion. The dedication of an easement
over the Nollans’ beachfront, for example, was a
general requirement imposed by state law. Nollan,
483 U.S. at 828–30 (California Coastal Act and
California Public Residential Code imposed publicaccess conditions on all coastal development permits);
see also id. at 859 (Brennan, J., dissenting) (Pursuant
to the California Coastal Act of 1972, a deed
restriction granting the public an easement for lateral
beach access “had been imposed [by the Commission]
since 1979 on all 43 shoreline new development
projects in the Faria Family Beach Tract.”).
Similarly, both the bike-path and greenway
dedications at issue in Dolan were mandated by
municipal land-use ordinances. See Dolan, 512 U.S.
at 377–78; id. at 378 (The city’s development code
“requires that new development facilitate this plan by
dedicating land for pedestrian pathways”); id. at 379

 22
(“The City Planning Commission . . . granted
petitioner’s permit application subject to conditions
imposed by the city’s [Community Development
Code].”). And the in-lieu fee at issue in Koontz was
required by state law. Koontz, 570 U.S. at 600–01
(Florida’s Water Resources Act of 1972 and Wetland
Protection Act of 1984 require that permitting
agencies impose conditions on any development
proposal within designated wetlands).
Koontz, which like this case involved a fee imposed
in lieu of a dedication of private property to the public,
is directly on point. Id. at 600–02. The permitting
authority in that case determined the amount of the
fee pursuant to a generally applicable regulation
setting the minimum mitigation ratio. 3 Id. Florida’s
Department of Environmental Protection adopted the
regulation nearly a decade before Koontz submitted
his permit application. Id. That the fee was
legislatively required did not deter this Court from
concluding that it was subject to the nexus and
proportionality tests (id. at 613–17)—a fact that
compelled Justice Kagan, writing in dissent, to
question whether the majority had rejected the
legislative-versus-adjudicative distinction. Id. at 628–
29 (Kagan, J., dissenting).
Koontz holds that when the government imposes
an in-lieu fee on a permit approval, the reviewing
court must look at the underlying condition to
determine whether it implicates the doctrine of
unconstitutional conditions. See Koontz, 570 U.S.
3 See Respondent’s Brief in Opposition, Koontz v. St. Johns
River Water Mgmt. Dist., No. 11-1447, 2012 WL 3142655, at *5
n.4 (U.S. Aug. 1, 2012) (citing Fla. Dep’t of Env. Reg., Policy for
“Wetlands Preservation-as-Mitigation” (June 20, 1988)).

 23
at 612 (An in-lieu fee is the “functional[] equivalent”
of the demand for a dedication of property.). Thus, as
a predicate to an as-applied challenge, a court must
first determine whether any of the alternative
demands would violate the Constitution. Id. at 611.
Here, by adopting a categorical rule that excludes
all legislatively mandated exactions from inquiry, the
court below eliminated this necessary determination,
leaving constitutionally guaranteed rights without
meaningful protection.
The legislative/adjudicative distinction also finds
no support in the history of the unconstitutional
conditions doctrine even beyond the land-use context.
Since the 19th century, this Court has relied on the
doctrine to invalidate legislative acts that impose
unconstitutional conditions. 4 The purpose of the
4 See Lafayette Ins. Co v. French, 59 U.S. (18 How.) 404, 407
(1855) (invalidating provisions of state law conditioning
permission for a foreign company to do business in Ohio upon the
waiver of the right to litigate disputes in the U.S. Federal
District Courts because “[t]his consent [to do business as a
foreign corporation] may be accompanied by such condition as
Ohio may think fit to impose; . . . provided they are not
repugnant to the constitution or laws of the United States”); see
also Marshall v. Barlow’s Inc., 436 U.S. 307, 315 (1978)
(invalidating provisions of the Occupational Safety and Health
Act, holding that a business owner could not be compelled to
choose between a warrantless search of his business by a
government agent or shutting down the business); Miami Herald
Publ’g Co. v. Tornillo, 418 U.S. 241, 255 (1974) (holding a state
statute unconstitutional as an abridgement of freedom of the
press because it forced a newspaper to incur additional costs by
adding more material to an issue or remove material it desired
to print); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (holding
provisions
of
unemployment
compensation
statute
unconstitutional where government required person to “violate a
cardinal principle of her religious faith” in order to receive

 24
doctrine—to enforce a constitutional limit on
government authority—explains why it applies
without regard to the type of government entity
making the unconstitutional demand:
[T]he power of the state . . . is not
unlimited; and one of the limitations is
that it may not impose conditions which
require relinquishment of constitutional
rights. If the state may compel the
surrender of one constitutional right as a
condition of its favor, it may, in a like
manner, compel a surrender of all. It is
inconceivable that guarantees embedded
in the Constitution of the United States
may thus be manipulated out of
existence.
Frost v. Railroad Comm’n of State of California, 271
U.S. 583, 593–94 (1926) (invalidating state law that
required trucking company to dedicate personal
property to public uses as a condition for permission
to use highways).
Legal scholars also find “little doctrinal basis
beyond blind deference to legislative decisions to limit
[the] application of [Nollan or Dolan] only to
administrative or quasi-judicial acts of government
regulators.” David L. Callies, Regulatory Takings &
the Supreme Court: How Perspectives on Property
Rights Have Changed from Penn Central to Dolan,
and What State and Federal Courts Are Doing About
benefits); Speiser v. Randall, 357 U.S. 513, 528–29 (1958) (ruling
that a state constitutional provision authorizing the government
to deny a tax exemption for applicants’ refusal to take loyalty
oath violated unconstitutional-conditions doctrine).

 25
It, 28 Stetson L. Rev. 523, 567–68 (1999). Indeed,
where a single government body writes the law, issues
permits, and sits in review of its decision—as the
County does here—it is often difficult to distinguish
one branch of the government from the other.
Steven A. Haskins, Closing the Dolan Deal—Bridging
the Legislative/Adjudicative Divide, 38 Urb. Law.
487, 514 (2006) (describing the difficulty in drawing a
line between legislative and administrative decisionmaking in the land-use context). The irrelevance of
the “legislative vs. administrative” distinction comes
as no surprise, because Nollan and Dolan are rooted
in the unconstitutional-conditions doctrine, which
“does not distinguish, in theory or in practice, between
conditions imposed by different branches of
government.” James S. Burling & Graham Owen, The
Implications of Lingle on Inclusionary Zoning and
other Legislative and Monetary Exactions, 28 Stan.
Envtl. L.J. 397, 400 (2009).
California’s adoption of a categorical rule
exempting all legislatively mandated exactions from
the heightened scrutiny required by Nollan/Dolan/
Koontz warrants review because it conflicts with
decisions of this Court and their rationale.
III.
STATE AND LOWER FEDERAL COURTS ARE
DIVIDED ON THE QUESTION WHETHER
THE NOLLAN AND DOLAN TESTS APPLY TO
EXACTIONS MANDATED BY LEGISLATION
The Court of Appeal decision below adds to a longstanding and deepening nationwide split among state
and lower federal courts on the question whether
legislatively-imposed permit conditions are subject to
review under the Nollan and Dolan tests. This case

 26
presents
that
question
in
a
particularly
straightforward way and is an ideal vehicle for
resolving the controversy.
As the alternative basis for its decision exempting
the County’s permit condition from scrutiny under
Nollan and Dolan, the court below noted that “the inlieu fee is a legislatively mandated fee that applies to
a broad class of permit applicants.” Pet. App. A at 23.
Under California law, the court explained,
“‘legislatively
prescribed
monetary
fees’—as
distinguished from ad hoc monetary demands by an
administrative agency—‘that are imposed as a
condition of development are not subject to the
Nollan/Dolan test.’” Id. (quoting CBIA, 61 Cal. 4th
at 459 n.11 (citing San Remo Hotel L.P. v. City & Cty.
of San Francisco, 27 Cal. 4th 643, 663–71 (2002));
Ehrlich v. City of Culver City, 12 Cal. 4th 854, 876
(1996)).
A split of authority has been growing now for
nearly 25 years on the question whether there is a
legally relevant difference between exactions imposed
by legislation versus those imposed ad hoc by
administrative agencies. See Parking Ass’n of Georgia,
Inc. v. City of Atlanta, Ga., 515 U.S. 1116, 1117 (1995)
(Thomas, J., dissenting from denial of certioriari)
(recognizing a nationwide split of authority);
California Bldg. Indus. Ass’n, 136 S. Ct. at 928
(Thomas, J., concurring in denial of certiorari)
(division has been deepening for over twenty years).
The courts of last resort of Texas, Ohio, Maine,
Illinois, New York, and Washington and the First
Circuit Court of Appeals do not distinguish between
legislatively and administratively imposed exactions
and apply the nexus and proportionality tests to

 27
generally applicable permit conditions. See Town of
Flower Mound, Tex. v. Stafford Estates Ltd. P’ship,
135 S.W.3d 620, 641 (Tex. 2004); Home Builders Ass’n
of Dayton & the Miami Valley v. City of Beavercreek,
729 N.E.2d 349, 355–56 (Ohio 2000); Curtis v. Town
of South Thomaston, 708 A.2d 657, 660 (Maine 1998);
City of Portsmouth, N.H. v. Schlesinger, 57 F.3d 12, 16
(1st Cir. 1995); Northern Illinois Home Builders Ass’n,
Inc. v. Cty. of Du Page, 649 N.E.2d 384, 397 (Ill. 1995);
Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479, 483
(N.Y. 1994), cert. denied, 514 U.S. 1109 (1995); Trimen
Development Co. v. King Cty., 877 P.2d 187, 194
(Wash. 1994).
On the other hand, the courts of last resort of
Alabama, Alaska, Arizona, California, and Colorado,
Maryland, and the Tenth Circuit Court of Appeals,
limit Nollan and Dolan to administratively imposed
conditions. See Dabbs v. Anne Arundel Cty., 458 Md.
331, 356, cert. denied, 139 S. Ct. 230 (2018); CBIA, 61
Cal. 4th at 459 n.11 (citing San Remo Hotel, 27 Cal.
4th at 666–69); Alto Eldorado P’ship v. Cty. of Santa
Fe, 634 F.3d 1170, 1179 (10th Cir. 2011); St. Clair Cty.
Home Builders Ass’n v. City of Pell City, 61 So. 3d 992,
1007 (Ala. 2010); Spinell Homes, Inc. v. Municipality
of Anchorage, 78 P.3d 692, 702 (Alaska 2003); Krupp
v. Breckenridge Sanitation Dist., 19 P.3d 687, 696
(Colo. 2001); Home Builders Ass’n of Cent. Arizona v.
City of Scottsdale, 930 P.2d 993, 996 (Ariz. 1997), cert.
denied, 521 U.S. 1120 (1997).
Meanwhile, the Ninth Circuit is internally
conflicted on this question. See Mead v. City of Cotati,
389 F. App’x 637, 639 (9th Cir. 2010) (Nollan and
Dolan do not apply to legislative conditions);
Commercial Builders of N. Cal. v. City of Sacramento,

 28
941 F.2d 872, 874–76 (9th Cir. 1991) (adjudicating a
Nollan-based claim against an ordinance requiring
developers to provide affordable housing); Garneau v.
City of Seattle, 147 F.3d 802, 813–15, 819–20 (9th Cir.
1998) (plurality opinion, the court divided equally on
whether Nollan and Dolan apply to legislative
exactions); see also Levin v. City & Cty. of
San Francisco, 71 F. Supp. 3d 1072, 1083 n.4 (N.D.
Cal. 2014) (Koontz undermines the reasoning for
holding legislative exactions exempt from scrutiny
under Nollan and Dolan).
Two Justices of this Court have expressed
skepticism at the purported difference between
legislatively and administratively imposed exactions.
In Parking Ass’n of Georgia, the Atlanta City Council,
motivated by a desire to beautify the downtown area,
adopted an ordinance that required owners of parking
lots to include landscaped areas equal to at least 10
percent of the paved area. 515 U.S. at 1116 (Thomas,
J., joined by O’Connor, J., dissenting from denial of
certiorari). The dissenting Justices criticized the
notion that there is a meaningful distinction between
legislatively imposed conditions and other exactions:
It is not clear why the existence of a
taking should turn on the type of
government entity responsible for the
taking. A city council can take property
just as well as a planning commission
can. Moreover, the general applicability
of the ordinance should not be relevant
in a takings analysis. If Atlanta had
seized several hundred homes in order to
build a freeway, there would be no doubt
that Atlanta had taken property. The

 29
distinction between sweeping legislative
takings
and
particularized
administrative takings appears to be a
distinction without a constitutional
difference.
Id. at 1117–18.
Justice Thomas again expressed doubt in his
dissent from denial of certiorari in California Bldg.
Indus. Ass’n, 136 S. Ct. at 928 (questioning whether
“the existence of a taking should turn on the type of
governmental entity responsible for the taking.”)
(citing Parking Ass’n of Georgia, 515 U.S. at 1117–18).
There, he wrote that the “lower courts have divided
over whether the Nollan/Dolan test applies in cases
where the alleged taking arises from a legislatively
imposed condition rather than an administrative
one,” noting:
Until we decide this issue, property
owners and local governments are left
uncertain about what legal standard
governs legislative ordinances and
whether cities can legislatively impose
exactions that would not pass muster if
done administratively. These factors
present compelling reasons for resolving
this conflict at the earliest practicable
opportunity.
Id. at 928–29; see also Koontz, 570 U.S. at 628 (Kagan,
J., dissenting) (The fact that this Court has not yet
resolved the split of authority on this question “casts
a cloud on every decision by every local government to
require a person seeking a permit to pay or spend
money.”).

 30
This deep split of authority is firmly entrenched,
and it cannot be resolved without this Court’s
clarification. This case presents the matter as a pure
issue of law for consideration.

CONCLUSION
For the reasons above, Petitioners respectfully
request that this Court grant the petition for writ of
certiorari, and reverse the decision of the California
Court of Appeal.
DATED: June 2019.
Respectfully submitted,
BRIAN T. HODGES
LAWRENCE G. SALZMAN*
Pacific Legal Foundation
*Counsel of Record
255 S. King Street, Ste. 800 OLIVER J. DUNFORD
Pacific Legal Foundation
Seattle, WA 98104
930 G Street
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
Sacramento, CA 95814
Telephone: (916) 419-7111
E-mail: BTH@
Facsimile: (916) 429-7747
pacificlegal.org
E-mail: LSalzman@
pacificlegal.org
Counsel for Petitioners
Dartmond Cherk and the Cherk Family Trust