(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . Supreme Court to rule on ability of states to manage growth and prevent climate damage. [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-11-12 Recent Supreme Court decisions have upended previously recognized privacy rights and environmental protection. The Court often based these controversial decisions on novel legal theories (e.g., major question and originalism) rather than follow prior legal precedent, including the Court showing less deference to government experts. This trend is subjecting the Court to criticism for usurping congressional, executive branch, and state policymaking entities. Mark A. Lemley, The Imperial Supreme Court, 136 Harv. Law Rev. F. 97 (Nov. 2022). A Court decision coming in 2024 may have a similar consequential impact on traditional state and local communities exercising their primary responsibility to balance local economic development with the public welfare. On September 29, 2023, the Supreme Court teed up this issue by electing to hear a case affecting the ability of state and local communities to manage land use (commonly allowed under traditional police powers enacted via state legislation). Sheetz v. County of El Dorado, Docket No. 22-1074. This forthcoming decision comes as climate change-induced extreme weather is affecting community landscapes. Communities are grappling with how to manage increasing regional challenges, such as flooding, water supply, wildfires, sea level rise, and ill-equipped public infrastructure. After decades of predictable weather patterns, communities are revisiting the adequacy of their land use management tools such as building codes, impact fees, and zoning to enhance public welfare, safety, economic development, and quality of life. Unfortunately, with current and predicted levels of greenhouse gases (GHG) in the atmosphere, extreme regional weather patterns will persist for decades. The International Panel on Climate Change (IPCC) has been correct in forecasting these climate changes. The IPCC scientists agreed on GHG reduction targets to keep global warming below a 1.5°C increase, beyond which weather patterns become more catastrophic. The IPCC considered over a thousand strategies to achieve the 1.5°C goal. Chris Mooney, We looked at 1,200 possibilities for the planet's future. These are our best hope, Washington Post (Dec. 1, 2022). Few of these strategies met the 2100 goal without a large interim exceedance of the 1.5°C threshold before 2100. The few relatively successful strategies required transformational action beyond current national GHG reduction commitments. Thus, urban communities are on notice that extreme weather will persist for decades, so communities should accelerate planning and action for the public welfare. City leaders and planners are on the front line for understanding regional changes and existing authority to protect public safety, quality of life, and reduce future damage. Urban communities rely on planning, project financing, building codes, and zoning to make appropriate changes that promote public welfare. How the 2024 Sheetz decision shapes existing, and future development management tools may depend on how far the Court expands its reach into traditionally state land use authority. Previous Supreme Court decisions have recognized that states have the primary responsibility for land use if any imposed property condition follows the Fifth Amendment to the US Constitution (the “Takings Clause”). The Supreme Court has generally upheld the constitutionality of local zoning/building codes as a valid exercise of local police power when the land restriction has a substantial relationship to the public welfare. As urban areas grew, courts allowed states even more flexibility in imposing conditions to address additional public purposes, e.g., phase new development, provide open space, protect drinking water, preserve natural resources, encourage transportation-oriented density, etc. Property restrictions are generally upheld if the local vision is established through comprehensive planning and enacted into rules. Since 2013 the Supreme Court further clarified a standard that lets land use regulators attach conditions to an individual’s property. The standard requires that the condition has an “essential nexus” connected to a legitimate governmental interest and the imposed condition is “roughly proportional” to the estimated impact on the public. This strict Supreme Court criteria has not applied to legislatively adopted programs that impose land restrictions on a general class of property owners, largely on the reasoning that government officials follow existing rules and are publicly elected. For the first time, the Supreme Court in Sheetz will weigh in on whether a land use condition (or comparable fee) imposed by a legislative body has the same stringent Taking Clause standard applicable to individual property owners. In Sheetz, the underlying California courts all upheld the county development impact fee because it was imposed under a legislatively prescribed program for a category of property owners, so not subject to the more restrictive Taking Clause for individuals. In imposing a traffic impact fee, the county relied on its general plan developed under the state Mitigation Fee Act for managing growth and open roads. There is concern that the Supreme Court will use the Sheetz case to expand its view of property owner rights under the Takings Clause and infringe on legislatively enacted state land use programs. Many state programs impose contributions from new development to manage a variety of community features related to land usage, including stormwater runoff, flooding, water supply, transportation, school capacity, wastewater, etc. These programs related to unbuilt development efficiently manage community-wide or regional land use at a lower cost. The property owner’s own development benefits from these programs. For example, new development conditions/fees often support regional infrastructure improvements, such as reducing flooding, delivering water, maintaining adequate transportation, etc. However, the current Supreme Court seems more deferential toward property owners’ ability to develop their property. In its recent decision, Sackett v. EPA, 598 US ____ (2023), the Court held in favor of a property owner’s ability to build a house on property with a federally protected wetland despite the broader impact of eliminating substantial categories of domestic wetlands previously protected by the U.S. Environmental Protection Agency under Democratic and Republican administrations. James McElfish, Jr., What comes next for clean water? Six consequences of Sackett v. EPA (May 26, 2023). With the land development industries supporting the California Sheetz appeal, it will be interesting to see if Justice Clarence Thomas will participate after discovery of his unreported lavish gifts from developer Harlan Crow. Justice Alito, who penned the majority Sackett opinion, noted that, “Regulation of land and water use lies at the core of traditional state authority.” Despite this reaffirmation of traditional state land use authority, the stakes are high for the Court hindering state and local governments seeking to manage community landscapes already subject to sustained urban growth and extreme weather. If the Court expands its deference toward property developer rights versus previous local police power precedent, the Sheetz decision could have a significant impact on increasingly critical existing and future state land use programs. 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