U.S. Supreme Court Denies Sheetz' Petition for Writ of Certiorari
A 2017 case that started with a $23,420 traffic impact fee to construct a 1,845 square foot home in rural El Dorado County, California has now, finally, run its course. On June 15, 2026, the U.S. Supreme Court denied George Sheetz’s petition for writ of certiorari (Case No. C093682) for review of a California Court of Appeal decision that upheld the constitutionality of the fee.
That was the second time that Sheetz asked the high court to review the fee. The first time was in 2023. He argued that the monetary exaction was a taking under the Fifth Amendment of the U.S. Constitution (“private property [shall not] be taken for public use without just compensation”) made applicable to the States through the Fourteenth Amendment, and the demand by the county that he pay the exaction as a condition of obtaining his development permit was unconstitutional. The trial court ruled in favor of the county. On appeal, the California Court of Appeal, Third District, also ruled in favor of the county. Sheetz sought review by the California Supreme Court, which denied review. He then sought review by the U.S. Supreme Court.
See my prior article in Law 360 for a full discussion of that appeal.
The Court held, on April 24, 2024, that the heightened scrutiny standard, the Nollan/Dolan test, applied to development impact fees, including the traffic impact fee charged against Sheetz, even when it was legislatively enacted and not imposed by a local government on a specific project as a condition for the property owner to be granted a development permit under the cases of Nollan v. Cal. Coastal Com., 483 U.S. 825 (1987), Dolan v. City of Tigard, 512 U.S. 374 (1994), and Koontz v. St. Johns River Water Mngmt. [“Koontz”], 570 U.S. 595 (2013). Under California law, at the time, the Nollan/Dolan test did not apply to legislatively determined development impact fees.
On remand, the California Court of Appeal held, on July 29, 2025, that the traffic impact fee was constitutional, applying the Nollan/Dolan test. Sheetz petitioned the California Supreme Court for review. The state high court denied the petition but ordered that the Court of Appeal opinion not be published, eliminating its precedential value.
On February 9, 2026, Sheetz filed his second petition for writ of certiorari with the U.S. Supreme Court.
Sheetz argued that the Court of Appeal failed to apply the heightened scrutiny standard as required under Sheetz v. County of El Dorado [“Sheetz”], 601 U.S. 267 (2024). Specifically, Sheetz asked the high court to determine whether “the Takings Clause’s protection against unconstitutional permit conditions encompass[es] an evidentiary requirement (as opposed to a legislative process) by which the government bears the burden to demonstrate that its development permit exaction complies with Dolan’s ‘rough proportionality’ standard[.]” He also asked whether it was possible for an impact fee to “be roughly proportional when imposed on one discrete class of development (residential) for the purpose of addressing impacts caused by another discrete class of development (commercial)?”
In Sheetz’s view, the Court of Appeal, by examining whether the legislative process was “rational,” skirted the rough proportionality test. “In so doing, the court below replaces the constitutionally required, empirical question of whether an impact fee is appropriately limited to mitigating effects of the subject development with a procedural question of whether the government engaged in a rational methodology in developing its fee program.” (Cert. Pet. at p. 2.)
In the County’s view, however, the Court of Appeal faithfully applied the Nollan/Dolan test to the schedule of traffic impact fees and not a rational basis test to the legislative process. “Indeed, it did not consider the County’s legislative process (committee hearings, votes, etc.) at all. Rather, it asked whether the ‘method’ would, as a matter of fact based on evidence, assign proportional burdens to properties with certain characteristics, based on evidence of their impacts. The question was thus whether the method actually established the requisite relationship—i.e., whether it showed ‘an outcome of rough proportionality,’ as petitioner puts it.” (Cert. Opp. at p. 23 [emphasis in orig.])
The County urged the Court to, rather than grant the petition for certiorari, allow the question of how to apply Nollan/Dolan to legislatively enacted fees to “percolate in the lower courts” first. (Id. at p. 34.)
“The need for percolation is readily apparent. It was only two years ago that this Court clarified a critical threshold issue in Sheetz. Before that decision, it was unclear whether Dolan had any application to the sort of class-based fee imposed here. The lower courts need time to react to Sheetz and to develop thoughtful answers to the tailoring question the Court expressly left open.” (Id.)
It’s impossible to say why, after their June 11, 2026 conference, the justices denied Sheetz’s second cert petition. It could be that the justices didn’t see a substantial enough constitutional issue to address. After all, legislative bodies (state legislatures, county boards of supervisors, and city councils, among others) commonly enact schedules for development impact fees. These schedules are, typically, the result of a political process driven by policy priorities and the economic needs of a particular jurisdiction. Many factors come into play, and many interests are involved: property owners, developers, and community groups, to name a few. Whereas the question of whether a legislatively enacted impact fee was a taking for purposes of the Fifth Amendment fell within a particular area of jurisprudence setting limits on a government’s power to exact fees from property owners, a question of how a legislatively body applies the takings test in these instances seems more pedestrian.
In fact, it was surprising to me that the distinguished team (Paul Beard II, et al.) that brought us the heavy hitting decisions in Koontz and Sheetz, appealed Sheetz v. County of El Dorado, 113 Cal.App.5th 113 (2025). Maybe they were really hoping that their client Sheetz would get his $23,420 refund from the county.
Research assistance from Diego Hernandez.