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Dartmond Cherk, et al. v. Marin County, California

Paid petition · Court of Appeal of California, First Appellate District, No. A153579 · judgment December 14, 2018

Certiorari denied · December 9, 2019
Pre-decision estimate: 3% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

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?

Counsel of record

For petitioner
Lawrence G. Salzman
Pacific Legal Foundation

For respondent
Brian Philip Goldman
Orrick, Herrington & Sutcliffe LLP

Case

Conference history
Distributed for 4 conferences

Amicus briefs
4 cert-stage

Proceedings

  1. Dec 09 2019
    Petition DENIED.
  2. Dec 02 2019
    DISTRIBUTED for Conference of 12/6/2019.
  3. Nov 19 2019
    Rescheduled.
  4. Nov 18 2019
    DISTRIBUTED for Conference of 11/22/2019.
  5. Nov 14 2019
    Rescheduled.
  6. Oct 30 2019
    DISTRIBUTED for Conference of 11/15/2019.
  7. Oct 25 2019
    Reply of petitioners Dartmond Cherk, et al. filed.
  8. Oct 16 2019
    Brief of respondent Marin County, California in opposition filed.
  9. Oct 03 2019
    Motion to extend the time to file a response from October 7, 2019 to October 16, 2019, submitted to The Clerk.
  10. Oct 03 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including October 16, 2019.
  11. Aug 30 2019
    Motion to extend the time to file a response is granted and the time is extended to and including October 7, 2019.
  12. Aug 29 2019
    Motion to extend the time to file a response from September 5, 2019 to October 7, 2019, submitted to The Clerk.
  13. Aug 06 2019
    Response Requested. (Due September 5, 2019)
  14. Jul 31 2019
    DISTRIBUTED for Conference of 10/1/2019.
  15. Jul 15 2019
    Brief amici curiae of Southeastern Legal Foundation, et al. filed.
  16. Jul 15 2019
    Brief amici curiae of National Association of Home Builders, et al. filed.
  17. Jul 12 2019
    Brief amicus curiae of Center for Constitutional Jurisprudence filed.
  18. Jul 11 2019
    Amicus brief of California Association of Realtors not accepted for filing. (July 15, 2019)
  19. Jul 11 2019
    Brief amici curiae of California Association of Realtors filed.
  20. Jun 18 2019
    Blanket Consent filed by Petitioners, Dartmond Cherk, et al.
  21. Jun 11 2019
    Petition for a writ of certiorari filed. (Response due July 15, 2019)