The Supreme Court of the United States will hear two takings cases this term: Sheetz v. County of El Dorado, California, No. 22-1074, a takings case involving a California county’s “Traffic Relief” road improvement program financed, under county-enacted legislation, by a “monetary exaction” scheme imposed on all applicants for building permits, and Devillier v. Texas, No. 22-913, which raises a fundamental question of whether the Just Compensation Clause of the Fifth Amendment is self-executing or whether there must be some authorization to seek just compensation for a taking.

In the first of the two cases, George Sheetz was forced to pay a substantial exaction (i.e., fee) as a condition for obtaining a residential construction permit. The county’s scheme did not consider the specific traffic burdens created by Mr. Sheetz’s, or any other permit applicant’s, proposed construction project in imposing the fee. I had the honor of preparing an amicus brief for the Atlantic Legal Foundation in this case, arguing that there can be no legislative exceptions to the right to receive just compensation when private property is taken by the government for a public purpose. Read the amicus brief here.

The Devillier case involves flooding of private property resulting from the Texas Department of Transportation’s installation of a 3-foot high, impenetrable, centerline concrete barrier to block floodwaters from the north reaching the south side of a highway. Following heavy rainfalls, this deliberately constructed highway dam has repeatedly flooded landowners’ farms and ranches on the north side of the highway.

I also prepared an amicus brief on behalf of the Atlantic Legal Foundation for the Devillier case, arguing that a person whose property is taken without just compensation can seek redress against a State under the Just Compensation Clause even if the State’s legislature has not affirmatively given them a cause of action. Read the amicus brief here.