SUPREME COURT

OF THE UNITED STATES

IN THE SUPREME COURT OF THE UNITED STATES

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GEORGE SHEETZ, )

Petitioner, )

v. ) No. 22-1074

COUNTY OF EL DORADO, CALIFORNIA, )

Respondent. )
- - - - - - - - - - - - - - - - - -

Pages: 1 through 98

Place: Washington, D.C.

Date: January 9, 2024

HERITAGE REPORTING CORPORATION

Official Reporters
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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - - - -

3 GEORGE SHEETZ, )

4 Petitioner, )

5 v. ) No. 22-1074

6 COUNTY OF EL DORADO, CALIFORNIA, )

7 Respondent. )

8 - - - - - - - - - - - - - - - - - -

10 Washington, D.C.

11 Tuesday, January 9, 2024

12

13 The above-entitled matter came on for

14 oral argument before the Supreme Court of the

15 United States at 10:02 a.m.

16

17 APPEARANCES:

18 PAUL J. BEARD, II, ESQUIRE, Los Angeles, California;

19 on behalf of the Petitioner.

20 AILEEN M. McGRATH, ESQUIRE, San Francisco, California;

21 on behalf of the Respondent.

22 ERICA L. ROSS, Assistant to the Solicitor General,

23 Department of Justice, Washington, D.C.; for the

24 United States, as amicus curiae, supporting the

25 Respondent.

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1 C O N T E N T S

2 ORAL ARGUMENT OF: PAGE:

3 PAUL J. BEARD, II, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF:

6 AILEEN M. McGRATH, ESQ.

7 On behalf of the Respondent 49

8 ORAL ARGUMENT OF:

9 ERICA L. ROSS, ESQ.

10 For the United States, as amicus

11 curiae, supporting the Respondent 82

12 REBUTTAL ARGUMENT OF:

13 PAUL J. BEARD, II, ESQ.

14 On behalf of the Petitioner 95

15

16

17

18

19

20

21

22

23

24

25

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1 P R O C E E D I N G S

2 (10:02 a.m.)

3 CHIEF JUSTICE ROBERTS: We'll hear

4 argument first this morning in Case 22-1074,

5 Sheetz versus the County of El Dorado.

6 Mr. Beard.

7 ORAL ARGUMENT OF PAUL J. BEARD, II

8 ON BEHALF OF THE PETITIONER

9 MR. BEARD: Mr. Chief Justice, and may

10 it please the Court:

11 The county refused to give George

12 Sheetz a permit to build a home unless he paid a

13 substantial fee to finance public road

14 improvements. He was faced with an impossible

15 choice: the taking of over $23,000 or the

16 ability to use his land. Though the fee went

17 beyond mitigation, he did submit to the fee and

18 paid under protest. After all, the permit was

19 worth far more than the fee.

20 That's the same improper leveraging

21 that led to this Court's rule in Nollan, Dolan,

22 and Koontz that all permit exactions should be

23 subject to heightened scrutiny. Such review is

24 needed to ensure that the government is not

25 committing a taking in the guise of the police

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1 power to mitigate for land use impacts. Yet,

2 the lower court refused to apply Nollan/Dolan

3 simply because the fee came from a legislative,

4 preset, generally applicable schedule that the

5 county had adopted.

6 The decision below is as wrong as it

7 is dangerous. First, nothing in the Court's

8 exactions precedents, the Takings Clause, or the

9 unconstitutional conditions doctrine justifies

10 that broad exception.

11 Second, it's a perversion of Nollan

12 and Dolan to say that because an exaction is

13 generally applicable, therefore, it requires no

14 heightened review. The exact opposite is true.

15 Such an exaction only amplifies the risk that

16 the government hasn't tailored its exaction to a

17 project's impacts, and that cries out for

18 Nollan/Dolan review.

19 Finally, upholding the lower court's

20 decision would just invite the government to

21 monetize across the country all of their permit

22 exactions and to preset legislative fees in

23 order to escape heightened review. The

24 exception would swallow the rule.

25 All permit exactions, whether monetary

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1 or otherwise, generally applicable or ad hoc,

2 should be subject to Nollan and Dolan to ensure

3 the government doesn't take more than it is

4 entitled to under its police power to mitigate

5 for land use impacts. The Court should reverse

6 and remand with instructions to apply heightened

7 review to the court -- to the county's fee.

8 I look forward to the Court's

9 questions.

10 JUSTICE THOMAS: Do we have to decide

11 any more than whether Nollan/Dolan scrutiny

12 applies to -- can apply here to legislative

13 exaction?

14 MR. BEARD: Justice Thomas, the Court

15 is -- is able to just answer the question

16 presented, which is simply whether there's some

17 kind of a legislative generally applicable

18 exception to Nollan and Dolan, yes.

19 JUSTICE THOMAS: If -- if the -- if --

20 if Respondent concedes that, is there anything

21 else we should do?

22 MR. BEARD: There's nothing for the

23 Court to do. That is the question presented.

24 They -- they've essentially conceded that

25 primary point that there is no legislative

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1 generally applicable exception.

2 JUSTICE JACKSON: Can I ask a

3 fundamental --

4 CHIEF JUSTICE ROBERTS: In all --

5 JUSTICE JACKSON: Oh, sorry.

6 CHIEF JUSTICE ROBERTS: I was just

7 going to say, in -- in all of the other takings

8 cases, there was an identifiable property

9 interest that was at issue. So, unless your

10 argument is that money is property, this is a

11 very different application of the Takings

12 Clause, isn't it?

13 MR. BEARD: We think it's -- it's very

14 consistent with the Takings Clause and, in

15 particular, with the Court's decision in Koontz,

16 where -- where the Court held explicitly, if the

17 money demand has a direct link to an

18 identifiable property interest, which in that

19 case and in this case was the land that was

20 proposed for use, that direct link is sufficient

21 to render the -- the monetary demand a monetary

22 exaction subject to Nollan and Dolan.

23 CHIEF JUSTICE ROBERTS: Well, it

24 involves land, but they're not taking any

25 particular property interest. They're not

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1 taking any part of the land. They're not taking

2 an easement. It's just use to which the land is

3 -- is being put, you can argue it's the value of

4 the land, but you -- and even in the other cases

5 where we're talking about money, it's usually

6 money in a particular pot, whether it's, you

7 know, in the legal fees case or those sorts of

8 situations.

9 I don't think there's another case

10 under Nollan and Dolan and Koontz where what's

11 involved is simply value as opposed to a

12 concrete identifiable property interest.

13 MR. BEARD: It's true that it is

14 Koontz that we are relying on for that

15 identifiable property interest link to the

16 property demand. It comes within the unique

17 context of a land use permitting process where

18 there -- there's a concern about the improper

19 leveraging of the permit to extort money or

20 land.

21 And as Koontz again said, so long as a

22 monetary demand operates on or burdens a

23 particular piece of property, as in Koontz and

24 as here, that is sufficient to --

25 JUSTICE SOTOMAYOR: Taxes --

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1 JUSTICE GORSUCH: Could your --

2 JUSTICE SOTOMAYOR: -- and user fees

3 do that. General building permits do that.

4 There's all -- and Koontz was very clear that,

5 I'm quoting from it, "This case does not affect

6 the ability of government to impose property

7 taxes, user fees, and similar laws and

8 regulations that may impose financial burdens on

9 property owners."

10 And I don't think we need to reach

11 this question, but it wasn't really argued below

12 and it wasn't even argued in the presentation on

13 cert of what's the difference between this and

14 those kinds of impositions.

15 MR. BEARD: Justice Sotomayor --

16 JUSTICE SOTOMAYOR: I can see

17 arguments on both sides, but I -- I -- I don't

18 understand why the essence of Koontz isn't what

19 the Chief observed, which is are -- is the state

20 taking for its own personal use your property,

21 an identified piece of property? Money has

22 never been viewed as that way. A -- a --

23 MR. BEARD: Well, in Koontz, money was

24 viewed as -- as a protectable interest when tied

25 to the underlying land --

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1 JUSTICE SOTOMAYOR: Well, but you had

2 to --

3 MR. BEARD: -- on which it was

4 operating.

5 JUSTICE SOTOMAYOR: -- it was either

6 give me an easement or give me money, so it was

7 tied to a property interest that the state --

8 the government was going to take over.

9 MR. BEARD: That is not a reasonable

10 reading of -- of Koontz. It wasn't the tie

11 between the monetary demand and the in lieu

12 request for a dedication of real property. It

13 was the tie between the monetary demand

14 operating on the property owner's land. It was

15 burdening operating on his land because he was

16 seeking a permit, a valuable permit --

17 JUSTICE SOTOMAYOR: That was going to

18 give the government use of another piece of

19 land.

20 JUSTICE JACKSON: Can I try it this

21 way? My question is whether your argument is

22 that all permit extractions should be -- are

23 implicating the Takings Clause. Anytime the

24 government asks for a fee related to real

25 property, the Takings Clause is implicated?

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1 MR. BEARD: I would frame it more

2 narrowly, Justice Jackson. I would say that

3 anytime the government, in the land use

4 permitting context, appropriates money for the

5 purpose of mitigating a land use, that is

6 subject to Nollan, Dolan, and Koontz and -- and

7 the requirement -- requirement for the

8 government to show that it's -- what it's doing

9 is mitigation --

10 JUSTICE JACKSON: Right. I understand

11 your argument is that Nollan and Dolan applies

12 in that situation. But what if I believe that

13 Nollan and Dolan only applies when the Takings

14 Clause is implicated? Because what we're

15 talking about here is the unconstitutional

16 conditions doctrine.

17 And so the condition has to be

18 unconstitutional in order to even implicate the

19 Nollan -- at least the way that I read the

20 cases. So what I'm trying to understand is,

21 what is unconstitutional about a county saying,

22 if you want to build in this way, because of the

23 impacts on the traffic or environment or

24 whatever, you have to pay a fee?

25 MR. BEARD: There is nothing as such

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1 wrong with the government making that demand.

2 JUSTICE JACKSON: All right. So then

3 we don't have an unconstitutional condition.

4 MR. BEARD: Well, we have an

5 unconstitutional condition in the sense that if

6 the government had knocked on Mr. Sheetz's door

7 and said, we want this sum of money to pay for

8 road improvements down the road, down the way,

9 that in our view would have been an

10 unconstitutional taking.

11 JUSTICE JACKSON: Would that --

12 JUSTICE BARRETT: I --

13 JUSTICE JACKSON: -- that would have

14 been a taking?

15 MR. BEARD: That would have been a

16 taking if he was being asked to give money to

17 the government for a public improvement project

18 as -- as his status as a landowner.

19 JUSTICE BARRETT: Mr. Beard, I'm

20 pretty confused because I thought your argument

21 was that this was in some sense an in lieu of

22 because, as Justice Jackson's pointing out, this

23 was an exaction, but it was kind of a trade for

24 something. It was for either giving up some use

25 of his property or, perhaps in the Lucas sense,

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1 you know, all use of the property.

2 But now I think you're -- you're -- so

3 that would be kind of the -- the taking part?

4 I -- I guess I didn't understand it to be an

5 argument that was solely about the taking of

6 money that was unrelated.

7 MR. BEARD: What I was referring to in

8 the -- in the example of the government

9 unilaterally requesting or demanding that money

10 be put to a particular use outside the

11 permitting process, I was referring to the

12 predicate for the Unconstitutional Conditions

13 Doctrine.

14 JUSTICE BARRETT: Okay.

15 MR. BEARD: And it's our view that --

16 that if the government had -- had demanded money

17 or actually taken money, as it has here, to put

18 to a public use, because of his ownership of the

19 land, that that would be a taking under the

20 Koontz rationale, which is, when there is this

21 demand linked to a particular piece of property,

22 that can rise to the level of a protectable

23 interest under the Takings Clause.

24 JUSTICE ALITO: Could your claim be

25 conceptualized as one involving a -- a no -- a

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1 no-build easement?

2 MR. BEARD: It certainly --

3 JUSTICE ALITO: A type of easement on

4 the property that prohibits any building.

5 MR. BEARD: It certainly could be

6 characterized that way because, if -- if he

7 doesn't -- if he doesn't pay the ransom, he

8 can't build. And so, in that sense, there is a

9 complete annihilation of his use. As I put it

10 in -- in my opening, it's -- it's this terrible

11 choice between having to -- to pay $23,000 or

12 give up his right to build.

13 So, in that sense, he is precluded

14 from building if he doesn't pay.

15 JUSTICE BARRETT: And that is kind of

16 more of an in lieu of. I mean, what Justice

17 Alito is proposing to you is different, I think,

18 than the way you were styling your argument

19 before.

20 MR. BEARD: Well, in lieu has a kind

21 of esoteric meaning, I think, in the exactions

22 case, in exactions case law, meaning --

23 JUSTICE BARRETT: Okay. Well -- well,

24 I'll -- I'll -- I'll retract that. Not in lieu

25 of, but in that sense, you are demanding a

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1 property interest because you're demanding an

2 easement, like a no-build easement, which might

3 be a variation of, say, a total conservation

4 easement in exchange, or you can pay the money.

5 Is that how your --

6 MR. BEARD: Yes, it can be

7 characterized that way. We have been

8 characterizing it in terms of Koontz because we

9 think this case is on all fours with Koontz.

10 JUSTICE JACKSON: But can you

11 characterize the -- can you characterize it in

12 terms of what's actually happening in this case?

13 MR. BEARD: Yes.

14 JUSTICE JACKSON: I mean, I didn't

15 understand the county to say anything about give

16 up your land or don't build on your land or, you

17 know, we want an easement, we're taking your

18 land. I thought what was happening in Koontz,

19 just as in Nollan and Dolan, is that the county

20 actually was interested in possession of the

21 land, a dedicated easement for some reason.

22 And in Nollan and Dolan, they, you

23 know, said in order to -- you know, they set it

24 up in a situation in which you -- the county

25 could get that easement under those

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1 circumstances. And in Koontz, they said, okay,

2 fine, you don't have to give us the land, you

3 can give us money in lieu of giving us the land.

4 But I didn't understand that dynamic

5 to be what is happening here. This seems to me

6 more like a property tax or a user fee that they

7 say -- you know, a toll or something that --

8 that if you build on your land in this way, it's

9 going to cause certain impacts, and so, in order

10 to permit you to do that building, you need to

11 pay for the fee.

12 MR. BEARD: Right. And -- and -- and

13 this is an impact -- impact mitigation

14 requirement. The precedents teach us that when

15 there is an impact mitigation requirement that,

16 yes, the government does have the police power

17 to mitigate for impacts, but it can't ask for

18 something else or something beyond mitigation.

19 JUSTICE JACKSON: It can't ask for

20 something unconstitutional. It can't ask for

21 something it couldn't have asked for --

22 MR. BEARD: Correct.

23 JUSTICE JACKSON: -- consistent with

24 the Constitution.

25 MR. BEARD: Yes.

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1 JUSTICE JACKSON: So that's why I

2 asked you why is it unconstitutional for them to

3 impose a fee, a user fee, a toll. What your --

4 your argument is suggesting that every toll is

5 -- is a taking, that every --

6 MR. BEARD: No.

7 JUSTICE JACKSON: -- property tax is a

8 taking.

9 MR. BEARD: No. Taxes and user fees

10 and other kinds of levies, they're entirely

11 different on the basis of the -- the -- the

12 power that's being invoked, the state or local

13 procedures pursuant to which they're being

14 invoked, the functional object of the thing

15 that's being levied, so, for example, a tax

16 generally is to raise revenues. It's not to

17 mitigate impacts to land use.

18 A user fee is used to compensate the

19 government or reimburse the government for a --

20 JUSTICE JACKSON: To mitigate impacts

21 --

22 MR. BEARD: -- a service or product.

23 JUSTICE JACKSON: -- to mitigate

24 impacts for -- for users.

25 MR. BEARD: But it's not, because a

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1 user fee -- in California, for example, the

2 Constitution defines a user fee as the provision

3 of a good or service to the payer and to nobody

4 else. That is not what is happening here.

5 Everyone use the roads, and Mr. Sheetz

6 may not even use the roads that are being

7 improved with his fee. So all of those other

8 taxes, user fees, financial obligations examples

9 are totally distinct. And as Koontz --

10 JUSTICE KAGAN: But the Court has made

11 clear that user fees generally don't have to be

12 calibrated to individual people's uses, right?

13 That --

14 MR. BEARD: True.

15 JUSTICE KAGAN: -- a legislature can

16 make an overall judgment about the way in which

17 categories of people use various services.

18 And I think what Justice Jackson is

19 saying is, why shouldn't we understand what

20 happened here in exactly that way? That,

21 actually, this scheme is highly reticulated, but

22 it's a judgment about how different categories

23 of people, you know, some people who are

24 building single residential homes and some

25 business owners and some churches and, you know,

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1 many different categories of people, they've

2 made evaluations of how -- how much those people

3 are going to use the roads, are going to

4 increase the burden on the roads, and so how

5 much they have to pay.

6 And that seems like a pretty classic

7 -- I mean, I'm sure different counties and

8 places have different terminologies for

9 different sorts of fees, but the concept of that

10 is a user fee. We're making a judgment that you

11 and other people that fit within your category

12 are going to use the roads X amount, and so you

13 should have to pay Y amount.

14 MR. BEARD: That is to give a meaning

15 to a user fee. That -- that just doesn't exist

16 in -- in any jurisdiction of which we're aware.

17 A user fee is very specifically

18 defined. It has -- it has its own procedures.

19 It has its own standard of review to determine

20 whether it is a taking if it goes beyond what's

21 reasonably allowed in terms of the cost.

22 No one has ever claimed in this case

23 that this is anything but mitigation. No one

24 ever claimed, including the county, the lower

25 courts, that this was something like a user fee.

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1 And this goes to --

2 JUSTICE SOTOMAYOR: Excuse me.

3 MR. BEARD: Yes.

4 JUSTICE SOTOMAYOR: User fees in my

5 mind, the essence of them is, I'm using

6 something, I should pay for that use. You're

7 using public roads that are going to have to be

8 built because you build this kind of project,

9 you're going to have to use public roads.

10 When I pay a toll, generally, I pay a

11 toll, it's now in New York $10, I can go a block

12 or I can go one exit or I can go 10 exits, I'm

13 paying the same $10. No one's looking at my

14 individual project trip and saying you're only

15 using it for a fraction of a moment, you're

16 going to say that comes under the rough

17 proportionality.

18 But it doesn't. What's being judged

19 is the project as a whole. And this is what the

20 government's doing. So I said to you this

21 hasn't really been fleshed out below, but the

22 concept that has to be addressed is what's the

23 essence of a user fee. I personally don't see

24 that as very different in impact.

25 And -- but the question is, when a

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1 court is reviewing that, is it reviewing it for

2 reasonableness, proportionality, or is it

3 reviewing it for impact on an individual

4 property? And I don't see how it can be that.

5 So this may be a hybrid, and we may have to look

6 at it someday, but it is not pure one side or

7 the other.

8 MR. BEARD: Justice Sotomayor, I -- I

9 think your example just highlights the fact that

10 user fees, like a toll, it's a -- it's a kind of

11 user fee, there's no question about that, but it

12 highlights the fact that, yes, user fees are

13 subject to more lax review.

14 What we're talking about entirely is

15 the heartland of land use regulation where the

16 government holds a permit over the property

17 owner's head, a very valuable permit, and says

18 we'll give you your right to build --

19 JUSTICE KAGAN: Well, that's quite --

20 MR. BEARD: -- so long as you pay us.

21 JUSTICE KAGAN: -- that -- that's

22 quite right, that in these kinds of cases we're

23 concerned about the sort of leverage that a

24 government official or a legislature has because

25 of the permitting process.

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1 But -- but still you have to show that

2 outside the permitting process there would be a

3 taking. I mean, that's when -- and I think

4 you've agreed to that already. I don't think

5 you disagree with that. That would -- so you

6 need a taking outside the permitting process in

7 order then to say, oh, gosh, in this permitting

8 process, what the government is trying to do is

9 leverage its power to force people to give up

10 their right to just compensation.

11 But you need the right to just

12 compensation to exist, and the question is,

13 where do you get that right when it's only what

14 seems to me a highly articulated user fee

15 scheme?

16 MR. BEARD: We get the right from the

17 fact that the government has required the owner

18 of a particular piece of property to dedicate

19 money to public use. And in this case, as we've

20 seen in this case, the government can mitigate

21 for land uses, but what it cannot do is -- is

22 impose a burden that should be shared by the

23 public as a whole on a select few. Who are the

24 select few? The minority of land use applicants

25 who happen at any given time to need to build or

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1 rebuild on their property.

2 JUSTICE BARRETT: Okay. So --

3 CHIEF JUSTICE ROBERTS: So that's --

4 JUSTICE BARRETT: -- what if it's not

5 a permit? Oh, go ahead, Chief.

6 CHIEF JUSTICE ROBERTS: I was just

7 going to say, so that is your key distinction,

8 as however you want to characterize the

9 assessment or whatever, is that it is applied to

10 a particular use by a particular owner? In

11 other words --

12 MR. BEARD: It's always --

13 CHIEF JUSTICE ROBERTS: -- it's not --

14 MR. BEARD: Yeah.

15 CHIEF JUSTICE ROBERTS: It -- it's not

16 a broadly applicable tax or -- or fee? But --

17 but I don't see how that's a significant

18 distinction because it's like tolls. I mean,

19 the tolls are only assessed on people who drive

20 on that road. And yet, that doesn't suggest

21 that the tolls are a taking.

22 MR. BEARD: Well, and that's because

23 -- and they may be a taking, so we don't want to

24 concede that point. But it's -- a user fee,

25 again, is reimbursement for a product or service

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1 used.

2 JUSTICE KAGAN: I don't have to --

3 JUSTICE ALITO: Well --

4 JUSTICE KAGAN: -- buy those EZ passes

5 anymore.

6 (Laughter.)

7 MR. BEARD: That's a matter of

8 convenience, though, Your Honor.

9 JUSTICE ALITO: Mr. Beard, suppose we

10 -- suppose one thinks that there has to be a

11 very close connection to -- that your case

12 involves what is allegedly a very close

13 connection to real property and that that's the

14 issue that would be presented in this case.

15 If you win on the precise -- on the

16 question on which we granted cert, which is

17 whether there is a total exemption for

18 legislative enactment -- so let's assume for the

19 sake of argument that the Court were to agree

20 with you on that, and so there has to be an

21 application of whatever the test is to

22 legislative enactments.

23 And then there are legislative

24 enactments and there are legislative enactments,

25 and they -- some apply to a very broad category

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1 of -- of property, and some apply -- some could

2 apply to a very narrow category of property.

3 And -- and my question is whether you

4 think that the test that applies to a

5 legislative enactment that applies to a category

6 of property should be the same as the one that

7 applies in the permitting process, where there

8 is an individualized determination.

9 So let me give you two examples. You

10 have a law like this that imposes a fee, a -- a

11 -- a particular fee, a set fee, on anybody who

12 builds a tiny house, like 500 square feet. I

13 don't know how many square feet a tiny house

14 has, but a tiny house, okay? Everybody -- they

15 do a study and they figure out that people on

16 average who have these tiny houses have X number

17 of cars and they calculate that. Or they have

18 one, anybody who wants to build anything pays

19 the same fee. So the person who wants to build

20 a tiny house pays the same amount as somebody

21 who wants to build a 20,000-foot house.

22 How would you apply it in those two

23 situations?

24 MR. BEARD: Justice Alito, in both

25 circumstances, is the fee being applied to

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1 mitigate the use of the land?

2 JUSTICE ALITO: Yeah. Mm-hmm.

3 MR. BEARD: There would be no

4 difference that I can perceive in those two

5 examples. In each case, the government would

6 need to show -- if challenged, the government

7 would need to show nexus and rough

8 proportionality.

9 JUSTICE ALITO: On an individualized

10 basis on -- for legislative categorical

11 enactments, the same standard that you would

12 apply to a permit?

13 MR. BEARD: Well, the "individualized

14 determination" language comes from Dolan, as --

15 as Your Honor knows, and it requires some sort

16 of individualized determination. That is a

17 substantive standard as we view it that just

18 requires that the focus be on the individual

19 parcel or property in question.

20 So the inquiry is never, is there a --

21 a connection between the fee and a broad class

22 of -- of properties as different in nature and

23 in impacts as they may be? That is not the

24 inquiry under Dolan. What we would insist on is

25 that the same standard --

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1 JUSTICE KAGAN: But, under Dolan, of

2 course -- I mean, I'm very interested in this

3 exact same question. Let's assume that there

4 was a taking. Let's just put that aside, the

5 questions that we've been talking about. And

6 let's assume that you're right that there's some

7 kind of unconstitutional conditions doctrine

8 that does apply to generally applicable

9 legislation, right?

10 And then I think what Justice Alito is

11 saying is, why would it be the exact same kind

12 of unconstitutional conditions requirement,

13 test, evaluation, what have you, when we're not

14 talking about an individual permitting decision,

15 but we're talking about a generally applicable

16 scheme? I mean, the legislature has decided to

17 cut across a wide swath of individuals.

18 What would it mean to do parcel-based

19 Nollan/Dolan in that context and why would we do

20 parcel-based Nollan/Dolan in that context? Why

21 wouldn't we ask more generally about the

22 proportionality or reasonableness or whatever

23 word you want to use of the general legislative

24 scheme?

25 MR. BEARD: Because just because the

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1 government decides to, writ large,

2 undifferentiatedly appropriate property, whether

3 it be easement or some fee, just because it

4 happens to do it via legislation writ large

5 doesn't mean it shouldn't be subject to the same

6 standard, which is -- is to protect an

7 individual property owner's right against an

8 uncompensated taking. There is no --

9 JUSTICE KAGAN: So what would you

10 evaluate? I mean, to me, that just makes it

11 sound as though a county can't -- can't pass

12 generally applicable laws anymore because, I

13 mean, a -- a Nollan/Dolan analysis, I would -- I

14 would think, you would have to look at the size

15 of the individual property, you know, in a case

16 like this, the distance from the highway, the

17 number of residents, the -- the exact amount of

18 use that they're going to do.

19 I mean, that's what Nollan/Dolan

20 individualized inquiry looks like. I mean,

21 that's just saying forget about generally

22 applicable fees anymore. There aren't going to

23 be any.

24 MR. BEARD: I don't think that is

25 correct, Justice Kagan, because a well-crafted,

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1 granular, legislative impact fee schedule could

2 pass muster under Nollan and Dolan's heightened

3 review. Why? Because, if -- if -- if it's

4 based on, say, a group of development that is

5 sufficiently granular, all of the members of

6 that group, say single-family homes between 1200

7 to 1500 square feet, produce the same kinds of

8 impacts, and it's not this broad-brushed

9 category of all development pays $50,000.

10 That kind of a fee is sufficiently

11 individualized, has a sufficient individualized

12 justification for the fee in the range. And

13 that -- that derives from the rough

14 proportionality standard. What is rough

15 proportionality? It means that any given

16 project's impacts could have a range of fees so

17 long as it's roughly proportionate to the impact

18 of that project.

19 JUSTICE KAGAN: I think your red light

20 is on. So sorry.

21 MR. BEARD: Excuse me.

22 JUSTICE KAGAN: We can -- I'm going to

23 ask more questions about this --

24 MR. BEARD: Okay.

25 JUSTICE KAGAN: -- but I just want to

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1 --

2 MR. BEARD: Thank you.

3 CHIEF JUSTICE ROBERTS: Thank you,

4 counsel.

5 Justice Thomas?

6 Justice Sotomayor?

7 JUSTICE SOTOMAYOR: I have a case,

8 Mira Mar. There, the -- the lower court

9 examined 20 different permitting conditions

10 under Nollan/Dolan, from whether a drainage pipe

11 really needed to be extended to a requirement

12 that the developer use a concrete water line cap

13 instead of compacted fill dirt.

14 It doesn't seem to me that when

15 legislative schemes are being imposed, even

16 including this one, there were 5,000 pages of

17 statistics and calculations that the -- that the

18 -- that the state involved itself with, that

19 that's really what we want district courts to be

20 doing.

21 Should I use compact dirt instead of a

22 water cap? And that -- if you're going to

23 require the sort of Nollan/Dolan test, that's

24 what you're calling for. And if you're going to

25 start saying, as you did, that you're reserving

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1 the right to say that a toll could be an

2 unconstitutional taking, I bet New York State is

3 going to -- New York City is going to be sued

4 very soon on that -- on that toll to come down

5 into lower Manhattan.

6 I mean, at what point do we stop

7 interfering?

8 MR. BEARD: Well, as to the toll issue

9 and the user fee more -- more broadly, I'm not

10 sure any monetary demand is totally exempt from

11 the Takings Clause. The question is, what

12 standard of review do you apply? And -- and the

13 standard for users who pay taxes --

14 JUSTICE SOTOMAYOR: Oh, you're

15 absolutely right. It -- it's not.

16 MR. BEARD: -- are very deferential

17 and -- and low because you don't have the same

18 kind of coercive problem that you have in the

19 land use permitting context, where government

20 can just use individual property owners or even

21 a class of individual property owners who need

22 permits to raise funds because they don't want

23 to raise funds via taxes.

24 That's unpopular. Let's use the --

25 the alleged impacts from individual property

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1 owners to fund public improvement projects that

2 should be funded by the -- by the entire public.

3 All we're asking for is a test that

4 ferrets out legitimate mitigation against a -- a

5 confiscation or appropriation of property that

6 doesn't mitigate for the project's impacts and

7 is clearly just a way to raise money that can't

8 be raised for political reasons through the

9 taxing power.

10 JUSTICE SOTOMAYOR: Thank you.

11 CHIEF JUSTICE ROBERTS: Justice Kagan?

12 JUSTICE KAGAN: I think what we were

13 talking about is that what a -- a -- a

14 legislature can decide to do is to do legitimate

15 mitigation. And I agree that that's a question

16 that our cases ask about. You know, are you

17 doing legitimate mitigation or are you using

18 your power to do something more?

19 But a -- a legislature can decide to

20 do legitimate mitigation through broad rules and

21 through categories and through averages. And I

22 think that you just suggested no, you wouldn't

23 really have to do it piece by piece by piece as

24 long as you had the right categories.

25 But I think I'm going to suggest that

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1 -- that this scheme is highly reticulated. You

2 know, I'm just going to read you all the

3 categories: singly -- single-family

4 residential, multi-family residential, high trip

5 commercial, general commercial, office,

6 industrial, warehouse, church, gas station, golf

7 course, campground, bed and breakfast.

8 Those are a lot of categories. And,

9 you know, so what's wrong with a county doing

10 exactly this? We're going to set up lots of

11 different categories that reflect how much use

12 we think different enterprises and activities

13 use -- how much use they -- they -- they -- they

14 put on the roads and then we're going to charge

15 them fees, and there's going to be some

16 averages. Some people are going to pay a little

17 bit more than they should. Some people are

18 going to pay a little bit less.

19 But, you know, except if we're going

20 to go house by house by house, that seems to be

21 what a county would do.

22 MR. BEARD: So the problem with the

23 fee that was imposed on Mr. Sheetz, yes, they

24 have categories, and he falls into the

25 single-family category, although they -- they

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1 group all single-family homes together, for

2 example. Any -- anything from, I don't know,

3 four -- 400 to 500 square feet to 5,000, 6,000

4 square feet, all of them have the same impacts.

5 But the fundamental problem is the

6 burden-shifting. They -- they -- the county

7 specifically and purposely shifted the burden of

8 traffic impacts from non-residential retail,

9 office, other commercial on to new residential.

10 And the reason they said they did it

11 was because we -- we don't want to discourage

12 new commercial from coming in to our -- our

13 jurisdiction. We don't want to overburden them

14 with impact fees. Let's just shift the burden

15 over to residential. It's that kind of

16 burden-shifting that reveals that the fee

17 actually was not tailored to Mr. Sheetz's house.

18 JUSTICE KAGAN: Thank you, Mr. Beard.

19 MR. BEARD: Thank you.

20 CHIEF JUSTICE ROBERTS: Justice

21 Gorsuch?

22 JUSTICE GORSUCH: I just want to make

23 sure I understand that last exchange and some

24 others like it. We're dealing here with a

25 legislative challenge, a challenge to a piece of

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1 legislation, but, of course, in Dolan, there was

2 legislation that executive actors were pursuing,

3 and, in fact, executive actors usually pursue

4 takings or any other action pursuant to

5 legislation.

6 And so whether it's legislative or an

7 executive action, we're dealing with a law, and

8 the question is whether it's proportional. And

9 one thing that might go to proportionality in a

10 specific case, because you're not making a

11 facial challenge, you're making an as-applied

12 challenge, is how carefully reticulated it is to

13 your circumstance.

14 Is -- is that a fair summary of the --

15 of the question once we move past the QP?

16 MR. BEARD: Yes.

17 JUSTICE GORSUCH: Okay. And I -- I

18 think a lot of what Justice Kagan and others

19 have said might well go to proportionality and

20 make this proportional.

21 Now I know you disagree with that, but

22 would you at least agree that that's an

23 available argument on remand?

24 MR. BEARD: On remand, the county

25 could certainly argue that the fee that was

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1 imposed on Mr. Sheetz was roughly proportional

2 to his impacts.

3 JUSTICE GORSUCH: Because it's a

4 carefully reticulated scheme and that it --

5 MR. BEARD: Correct.

6 JUSTICE GORSUCH: Okay.

7 MR. BEARD: Of course, we would

8 disagree with that, but yes.

9 JUSTICE GORSUCH: I understand you

10 disagree with that, but that would be the --

11 MR. BEARD: It certainly has that

12 argument available.

13 JUSTICE GORSUCH: -- that would be the

14 nature of the dispute on remand?

15 MR. BEARD: Yes.

16 JUSTICE GORSUCH: All right. Thank

17 you.

18 CHIEF JUSTICE ROBERTS: Justice

19 Kavanaugh?

20 JUSTICE KAVANAUGH: Can I just pick up

21 on that? If you win on the idea that

22 legislative exactions are subject to

23 Nollan/Dolan and you win on impact fees are

24 subject to Nollan/Dolan, then it comes down to

25 how do you apply the nexus and rough

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1 proportionality test that Justice Kagan, Justice

2 Alito, Justice Gorsuch have been asking you

3 about.

4 And I found your reply brief -- well,

5 first of all, the amicus briefs of the states

6 and of the American Planning Association, for

7 example, say in essence, paraphrasing, it would

8 be a total disaster to try to do that on a

9 parcel-specific basis and would really destroy

10 the concept of imposing impact fees for new

11 development.

12 And in your reply brief, I thought you

13 came back on page 16 and said: "While a fee

14 based on classes of development can survive

15 Nollan/Dolan, a fee schedule premised on a range

16 of fees for different development classes will

17 not necessarily run afoul of Nollan/Dolan." And

18 that -- and I think you've repeated that today.

19 And then you have a sentence: "Of

20 course, to guarantee the fee is constitutional,

21 the government must make an individualized

22 determination that the fee as applies to his

23 project satisfies Nollan/Dolan."

24 So I view those two things as

25 inconsistent in that paragraph, and I'm trying

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1 to kind of drill down on what exactly are you

2 saying needs to be shown by a county when it has

3 a fee schedule or formula in order to show rough

4 proportionality?

5 MR. BEARD: When challenged, it needs

6 to show that the fee, once -- the fee from the

7 schedule bears an essential nexus and rough

8 proportionality to the impacts of the proposed

9 development before it.

10 So getting to that last sentence that

11 Your Honor read, the idea is that many

12 jurisdictions, Texas is one of them, they have

13 what I would call default. Illinois has it too.

14 Default legislative impact fee schedules.

15 They have very well-crafted, detailed

16 impact fee schedules. They don't do this weird

17 burden-shifting for political reasons. And then

18 an applicant has the opportunity to say: Well,

19 hold on, I think that fee is excessive given the

20 impacts of this project.

21 Now, if it's well-articulated and

22 well-crafted, you're not going to see many

23 challenges from developers, especially the --

24 the mid- to -- to larger-sized developers. But

25 you may have the occasional one.

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1 And in that circumstance, certainly,

2 the government would need to show that its fee

3 is roughly proportionate to the impacts, the fee

4 that it drew from the legislative fee schedule.

5 JUSTICE KAVANAUGH: So is -- is it

6 okay to classify all single-family homes

7 together?

8 MR. BEARD: I mean, I think it

9 depends. Where is it located? What are -- what

10 are the sizes of these single-family homes? I

11 mean, that's a traffic impact question. But,

12 certainly, just class --

13 JUSTICE KAVANAUGH: That's a critical

14 question for workability of what you're

15 proposing, at least that's what the, I think,

16 amicus briefs suggest and the county suggests,

17 that, you know, the current way of -- or not the

18 current way, but approaching it in a

19 formula-based way would be more transparent,

20 more predictable, and that your way is going to

21 be more time-consuming, administratively

22 burdensome.

23 So I just want to make sure you have a

24 chance to respond --

25 MR. BEARD: Well, it --

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1 JUSTICE KAVANAUGH: -- to that.

2 MR. BEARD: -- it very well may be,

3 but this is a constitutional standard --

4 JUSTICE KAVANAUGH: No, I understand

5 that.

6 MR. BEARD: -- and the Constitution

7 doesn't have to --

8 JUSTICE KAVANAUGH: But -- but then

9 where are the -- predictability, where are the

10 lines drawn? You know, does -- do single-family

11 homes have to be divided into small, medium,

12 large? How close you are to the highway? If --

13 do you have bikers in the household who don't

14 use the roads?

15 MR. BEARD: Well, it -- it -- it -- it

16 doesn't -- the proportionality question, the

17 nexus and proportionality questions don't rely

18 on what the individuals are doing. It's a

19 project, right, this is a single-family home of

20 X size. This is what we expect, this is what we

21 anticipate the traffic impacts to be.

22 But, to go to your point, the county

23 itself in 2019 realized that it could be better

24 crafted by creating single-family homes

25 categorized by square footage and that makes

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1 common sense, whereas before it said

2 administrative problems, too costly. Now we see

3 that they're going in that direction.

4 And all applying Nollan and Dolan will

5 do is keep governments honest and to make sure

6 that they're actually doing the work of creating

7 fees where an individual project will come

8 before it and, yeah, that -- that fee from the

9 schedule will be roughly proportional.

10 JUSTICE KAVANAUGH: And, again, I --

11 I -- that's great, but I'm not sure how you

12 answer that question, but I -- I think I'll let

13 it go there. Okay.

14 MR. BEARD: Okay.

15 CHIEF JUSTICE ROBERTS: Justice

16 Barrett?

17 JUSTICE BARRETT: I have one question

18 that's related to Justice Kavanaugh's question,

19 which is it seems kind of like a nightmare to

20 figure out where the line should be drawn in

21 these categories, and you're trying to -- you're

22 trying to mitigate the potential consequences of

23 that.

24 I mean, when you're deciding how

25 reticulated it has to be, would the lines drawn

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1 between various categories be judged on a

2 rational basis level? Because it seems like

3 you're saying, well, you look at whether the

4 category is roughly proportional, but, as

5 Justice Kavanaugh's pointing out, individual

6 parcels within that category may have varying

7 impacts on the traffic.

8 So how do you decide where the lines

9 should be drawn?

10 MR. BEARD: Well, I think --

11 JUSTICE BARRETT: Is it

12 proportionality? Is that your answer?

13 MR. BEARD: Proportionality as to the

14 particular project and rough proportionality as

15 to the particular project. So, as I said, there

16 could be a fee within a category to which that

17 project belongs that may be roughly

18 proportionate. It doesn't have to be exact. It

19 could be roughly proportionate.

20 JUSTICE BARRETT: Okay.

21 MR. BEARD: And as to the lines,

22 categories and how do you judge --

23 JUSTICE BARRETT: Yeah.

24 MR. BEARD: -- those, that sounds to

25 me like a -- like a facial challenge to the

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1 program, that the program hasn't been done

2 correctly because it's created categories that

3 --

4 JUSTICE BARRETT: Okay. Let's let

5 that go. The other question that I have is

6 about how much your argument is tied to the fact

7 this arises in a permitting context. So let's

8 imagine that instead of tying this traffic

9 impact exaction to granting the permit, let's

10 say that your client builds the home and then,

11 after that, so a permit's been granted and

12 fallen out of the picture, the county comes back

13 and says we're going to have a special

14 assessment applicable to everybody in this

15 development of X amount of money, say it's the

16 same 20 whatever thousand dollars that your

17 client paid to cover traffic impacts.

18 Does that implicate Nollan/Dolan?

19 MR. BEARD: Since that occurs outside

20 the land use permitting context, that would not

21 implicate the Nollan/Dolan test, and -- and --

22 JUSTICE BARRETT: But do you think it

23 might be a taking or implicate the Takings

24 Clause?

25 MR. BEARD: Well, as I said earlier, I

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1 don't know that any monetary appropriation is

2 carte blanche exempt from the Takings Clause.

3 The question really comes down to has the

4 government, in exercising its assessment power,

5 its tax power, police power, has it exceeded

6 what it's entitled to under that power? And --

7 JUSTICE BARRETT: So property taxes

8 too?

9 MR. BEARD: Property taxes, one case

10 that was cited in Koontz from 1960, Brushaber,

11 said yeah, the progressive tax is

12 constitutional. There's no taking. We could

13 imagine a situation where it becomes so

14 confiscatory that that portion of it may become

15 a taking. So that's just to say that taxes

16 generally are as a matter -- just as a matter of

17 fact exempt. You're not going to mount a very

18 strong takings challenge to a -- a tax.

19 JUSTICE BARRETT: Thank you.

20 MR. BEARD: Yeah.

21 CHIEF JUSTICE ROBERTS: Justice

22 Jackson?

23 JUSTICE JACKSON: So I guess I'm

24 really, really confused now because I did not

25 understand the taking question constitutionally,

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1 the way that we analyze it and think about it,

2 to be a matter of has the government overstepped

3 its authority. I thought that takings were the

4 dedication of private property to public use for

5 which the government would have to pay just

6 compensation.

7 MR. BEARD: Yes.

8 JUSTICE JACKSON: All right. So, if

9 that's the case, then it seems to me we have to

10 have that kernel of thing happening in whatever

11 scenario that you say Nollan and Dolan applies.

12 And I don't understand why that's

13 happening in a situation like the one that

14 Justice Barrett articulated or any of the toll

15 situations. So, for example, in this very case,

16 instead of a fee schedule at the beginning for a

17 -- a single-use person like your client, the

18 county says we will just set up a toll booth

19 outside of the road in front of his house. And

20 so, instead of charging him a certain amount for

21 riding on the roads upfront via this fee

22 schedule, we'll make him pay every time he comes

23 home.

24 Taking in your perspective?

25 MR. BEARD: That sounds to me like a

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1 user fee that is occurring outside the land use

2 permitting context with a special --

3 JUSTICE JACKSON: It's not outside the

4 land use -- it's not outside land use because

5 he's only doing this, as the Chief Justice

6 posited, because he has to come there in order

7 to get to his house.

8 MR. BEARD: I don't conceive of that

9 as -- as being within the heartland of land use

10 permitting. Land use permitting is kind of a

11 very defined world where you go for a permit to

12 use your property, you need the government's

13 permission to do so, and the government extorts

14 something in return.

15 JUSTICE JACKSON: But doesn't the

16 something have to be a dedicated use of the

17 property in order for the Takings Clause --

18 MR. BEARD: Yes.

19 JUSTICE JACKSON: -- to apply?

20 MR. BEARD: Yes, and I --

21 JUSTICE JACKSON: Right.

22 MR. BEARD: Yes.

23 JUSTICE JACKSON: So why is that

24 happening in a situation in which the government

25 is just asking for a fee in connection with the

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1 -- getting the permit?

2 MR. BEARD: Because the government is

3 appropriating, is directing the owner of

4 property to make a monetary payment for -- for

5 land use mitigation purposes. If it's --

6 JUSTICE JACKSON: So how -- how --

7 MR. BEARD: -- in that world --

8 JUSTICE JACKSON: Okay. So how does

9 just compensation work? The Takings Clause says

10 that the government can do that. They just have

11 to pay just compensation. So, in your scenario

12 where the government is extracting a fee in this

13 way as a part of conditioning, what is the just

14 compensation part of this?

15 MR. BEARD: Well, it's -- the just

16 compensation part of it is that the government

17 has appropriated a sum of money for which it

18 owes compensation, a refund.

19 JUSTICE JACKSON: So, basically,

20 you're saying, unlike our tax -- our -- our

21 normal takings jurisprudence that would allow

22 the government to do it, they just have to pay.

23 Here, the government effectively can't do it

24 because it would be offset by the need to

25 provide a refund?

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1 MR. BEARD: Well, if the government

2 has committed an uncompensated taking, which we

3 -- which we assert is the appropriation of this

4 monetary exaction, connected and tied to a real

5 property interest, if it's done an uncompensate

6 -- an uncompensated taking, as we allege, then

7 the remedy is to compensate the government --

8 the property owner --

9 JUSTICE JACKSON: All right.

10 MR. BEARD: -- which is why we seek a

11 --

12 JUSTICE JACKSON: Let me -- one -- one

13 last question because I -- I guess I -- I am

14 sympathetic to your concerns about government

15 overreach and the extent to which, you know,

16 people who are landowners are being shaken down

17 for fees. I get that.

18 What I guess I'm wondering is whether

19 the awkwardness in terms of all of these

20 doctrines that we're talking about with respect

21 to this scenario is coming from the fact that

22 it's really not a taking scenario in that you

23 have other bases that you might be able to claim

24 as the reason why the government shouldn't be

25 able to do this.

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1 So, for example, the Due Process

2 Clause. It sounds to me like you were making a

3 procedural due process argument when you said

4 the burden-shifting is the problem in response

5 to Justice Kagan.

6 At one point, you said, you know, this

7 is about keeping the government honest. There

8 are other claims in the law that do that work,

9 right? If you were unfairly singled out, you

10 could bring an Equal Protection Clause claim.

11 But I just don't know that takings is what is

12 doing the work for you here in terms of

13 challenging the government's program.

14 MR. BEARD: Well, we think the Takings

15 Clause does apply because the Takings Clause --

16 the animating principle is you don't select a

17 few to bear public burdens that should be borne

18 by the -- borne by the public as a whole. And

19 that's what we think happened exactly to Mr.

20 Sheetz.

21 JUSTICE JACKSON: Thank you.

22 MR. BEARD: -- that he -- thank you.

23 CHIEF JUSTICE ROBERTS: Thank you,

24 counsel.

25 MR. BEARD: Thank you.

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1 CHIEF JUSTICE ROBERTS: Ms. McGrath.

2 ORAL ARGUMENT OF AILEEN M. McGRATH

3 ON BEHALF OF THE RESPONDENT

4 MS. McGRATH: Mr. Chief Justice, and

5 may it please the Court:

6 Like countless local governments

7 across the country, the County of El Dorado

8 charges a fee to developers to address the

9 impacts of new development using a predetermined

10 schedule, as Justice Kagan has ident- -- has

11 emphasized, reticulated by geographic zone and

12 development type.

13 As the findings below make clear, the

14 programmatic fee in this case does not pay for

15 road improvements generally. It pays for only

16 those improvements necessary to alleviate

17 increased traffic from new development.

18 Neither precedent nor principle

19 supports, much less compels, applying

20 Nollan/Dolan's individualized test to those

21 programmatic fees. In centuries' worth of

22 precedent, this Court has reiterated that

23 governments can charge fees to property owners,

24 such as special assessments to fund public

25 improvements and user fees to fund government

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1 services.

2 This Court has always held that those

3 fees, which are indistinguishable from the fee

4 at issue, are not takings. Without that

5 predicate for application of the

6 unconstitutional conditions doctrine,

7 Nollan/Dolan cannot apply.

8 More fundamentally, the county's

9 impact fee shares all of the key features with

10 the other property taxes, user fees, and similar

11 property-based charges that this Court has

12 cordoned off from Nollan/Dolan review. It is

13 imposed by the legislature subject to an array

14 of state law requirements and applies to all

15 similar new development in the county based on

16 the legislature's finding that new development

17 creates the need for and will benefit from the

18 road improvements the fee will fund. And,

19 critically, it does not attempt to obtain any

20 dedication of real property.

21 Petitioner would disregard those

22 limiting features and expand Nollan/Dolan to

23 commonplace impact fees. But doing so would

24 have dire consequences for land use planning.

25 Forcing local governments to justify a

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1 programmatic fee on a parcel-by-parcel basis

2 would disrupt, if not destroy, their ability to

3 fund capital-intensive infrastructure necessary

4 to serve new development, bringing such

5 development to a grinding halt. The Takings

6 Clause does not compel that sea change.

7 I welcome the Court's questions.

8 JUSTICE THOMAS: Do you think, again,

9 not specifically this case, but do you think

10 that legislative exactions can be subject to

11 Nollan/Dolan scrutiny?

12 MS. McGRATH: I think that there are

13 legislative exactions that could be subject to

14 Nollan/Dolan scrutiny, yes, Justice Thomas. I

15 think our position here, which is the position

16 and the rule that the court of appeal applied

17 below, is that certain kinds of legislative

18 development impact fees do categorically fall

19 outside of Nollan/Dolan. While it's possible to

20 imagine or identify scenarios where the

21 legislature might effect a taking on a

22 programmatic basis, we would not bring those

23 kinds of -- of, you know, unusual scenarios

24 within our rule, but our position is that this

25 type of legislation does categorically fall

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1 outside Nollan/Dolan.

2 JUSTICE THOMAS: Well, it seems that

3 much of your argument actually goes to the

4 nature of the -- of the fee itself as opposed to

5 its origins in legislation.

6 MS. McGRATH: I -- I -- I agree with

7 that, that -- that our position is -- is not

8 that the legislature categorically has some sort

9 of insulation from what Nollan/Dolan requires.

10 Our position is that when the

11 legislature acts in this case as the legislature

12 has in a way that is functionally and

13 constitutionally indistinguishable from the way

14 that the legislature acts in instances where the

15 Court has already said that Nollan/Dolan does

16 not apply, that that is the reason that

17 Nollan/Dolan does not apply in this context.

18 JUSTICE THOMAS: Well, that could -- I

19 mean, that argument could have been -- the same

20 argument could have been made in Nollan and

21 Dolan. You -- you could have made the same

22 argument that this type of tax in that case

23 that -- from an ordinance or from a local

24 regulation was exempt because of the nature of

25 the exaction.

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1 MS. McGRATH: I don't think so,

2 Justice Thomas. I think, in each of those

3 cases, I think the primary distinction we would

4 point to is that each of those cases, as already

5 has been discussed today, purported to apply the

6 unconstitutional conditions framework, which

7 means that the question of each of -- of those

8 cases is, is the permit condition effectuating a

9 taking that the government would have to pay for

10 if it effectuated outside the permit process.

11 That answer is not answered by looking

12 at whether there is some sort of legislation --

13 legislative authorization present somewhere at

14 the -- in the scheme. It is looking at what

15 that condition does, and I think that --

16 CHIEF JUSTICE ROBERTS: Well, based --

17 based on your answer there, I think your answer

18 to the question presented is, I think, the same

19 as the Petitioner.

20 JUSTICE THOMAS: Yeah.

21 CHIEF JUSTICE ROBERTS: The question

22 presented is whether a permit exaction is exempt

23 from the unconstitutional conditions doctrine as

24 applied in Nollan and Dolan simply because it is

25 authorized by legislation.

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1 You said the answer to that is no,

2 that the -- the fact that it's legislation does

3 not give it an automatic exemption. Your

4 friend's answer is no for the same reason.

5 MS. McGRATH: Well, I think today I

6 heard my friend's answer to be more candid, just

7 as it is in his brief, is that his position is

8 that any permit condition that is imposed on a

9 development permit is subject to Nollan/Dolan.

10 That is what he said on page 44 in the

11 blue brief and the relief that he is asking from

12 this Court. It's also the -- the relief that I

13 heard him asking for this morning.

14 And so, in answering the question

15 presented, I think what that highlights is that

16 the question is not whether legislative -- some

17 sort of legislative authorization somewhere in

18 the scheme categorically exempts permit

19 conditions from Nollan/Dolan.

20 The question is whether this kind of

21 legislation, which is ubiquitous and commonly

22 used, is subject to Nollan/Dolan. And, there, I

23 would also refer back to what the question

24 presented says about the unconstitutional

25 conditions doctrine.

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1 The question is whether what the --

2 which requires a determination that the

3 condition that the government is imposing would

4 be a taking if it were performed outside of the

5 permitting context. And, here, you know, we

6 think the answer is no.

7 But, as I said, more fundamentally,

8 the Court has said before that certain kinds of

9 legislation -- property taxes, special

10 assessments, user fees -- are categorically

11 outside of Nollan/Dolan, and our position --

12 CHIEF JUSTICE ROBERTS: Well --

13 MS. McGRATH: -- is that the fee --

14 JUSTICE GORSUCH: Counsel, I -- I --

15 I -- I think you're right about all of that,

16 that, you know, whether this is a tax is a

17 really interesting question. Whether it's a

18 user fee is a really interesting question.

19 But, as I read the court of appeals

20 below, they said we're not even going to get

21 into any of that because Nollan and Dolan simply

22 doesn't apply to legislative enactments of any

23 kind, whether it's a tax, whether it's a fee,

24 whether it's something else.

25 And I thought we had taken the case to

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1 address that question. And as the Chief Justice

2 has pointed out, I think there's radical

3 agreement on that question today.

4 MS. McGRATH: I -- I think, if you

5 read --

6 JUSTICE GORSUCH: And so why wouldn't

7 -- what would be wrong with allowing both sides

8 to go back and make their arguments, recognizing

9 that Nollan and Dolan does apply to some

10 legislative enactments, and then we can -- you

11 can go back to the courts below and talk about

12 whether this is a tax, whether it's a user fee,

13 or whether it isn't, but that there's just no

14 categorical exemption from legislative

15 enactments?

16 What would be wrong with that holding

17 today?

18 MS. McGRATH: I think what would be --

19 JUSTICE GORSUCH: Which we might all

20 be able to walk out of the courtroom agreeing

21 on.

22 MS. McGRATH: I -- I think that the

23 two main problems with that, Justice Gorsuch, is

24 that is not the rule that the court of appeal

25 applied below. And I think, on page A17 of the

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1 --

2 JUSTICE GORSUCH: Well, let's say --

3 let's say that's what I -- let's -- let's say

4 that's the premise on which we -- I think we

5 understood we took this case, me, myself and I.

6 Then what?

7 MS. McGRATH: I think that then, if --

8 if the question is whether we would welcome an

9 opinion that simply says there is no legislative

10 exemption from Nollan/Dolan, I think we would

11 prevail under that standard because that is not

12 the position or the rule that the court of

13 appeal applied below.

14 The court of appeal applied a rule

15 that said that legislatively mandated

16 development --

17 JUSTICE GORSUCH: I think -- I think

18 you're -- you're fighting my -- my -- my

19 condition. If -- if -- if that's how I

20 understood the court of appeal below and --

21 and -- and if that's how I understood the QP

22 that we're being asked to decide and if we can

23 all agree on that, would the government fight a

24 world in which it's allowed to go back and make

25 all of the arguments you want to make here today

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1 before another court in the first instance

2 rather than asking us, the court of review

3 rather than first view, to -- to try and tackle

4 them?

5 MS. McGRATH: I think my answer would

6 be similar, is that I think it would be an odd

7 opinion to write where it was not the rule that

8 was applied below. But I'll take the

9 hypothetical. And even there, I think what --

10 what -- what is apparent from the briefing and

11 what you hear from the arguments today is that

12 the core of this disagreement is about whether

13 all permit conditions are or are not subject to

14 Nollan/Dolan. That's the very premise of the

15 QP, is whether there's an exemption --

16 JUSTICE GORSUCH: No, no. The premise

17 of the QP is what -- what we know in -- in

18 Dolan, for example, administrative agents said

19 you have to give me a 15-foot strip access to

20 the beach. That -- that was subject to an

21 unconstitutional conditions analysis.

22 And the only difference between that

23 and this is that there you had an executive

24 actor who was applying a legislative command,

25 and, here, you have an executive actor applying

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1 maybe a more specific or -- or -- or more

2 obvious legislative command, but in both

3 instances, there are executive actors applying

4 legislative commands. And we're being asked, I

5 think, just to decide whether that makes a

6 difference.

7 MS. McGRATH: I think that what

8 happened in Nollan/Dolan and Koontz all looks

9 fundamentally different from what the county is

10 doing -- is doing here in a way that I think

11 bears on what you are getting at, Justice

12 Gorsuch, which is that what the -- what the

13 governments were doing in Nollan/Dolan and

14 Koontz was fundamentally different from the

15 county scheme, which is indistinguishable from

16 property taxes, user fees, and special

17 assessments.

18 JUSTICE GORSUCH: Is this a tax? Is

19 this a tax? I mean, if we're going to go down

20 that road, do you think -- I -- I didn't see

21 that word in your -- your brief. I might --

22 might have missed it.

23 MS. McGRATH: Oh, I do -- I do think

24 --

25 JUSTICE GORSUCH: Do you think this is

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1 a tax under California law?

2 MS. McGRATH: Under California law, it

3 is not a tax, but I think, for purposes of

4 constitutional law, it is a tax. And the cases

5 would be --

6 JUSTICE GORSUCH: So we have to decide

7 that? We have -- we have to decide it's --

8 constitutionally, it's a tax even though, under

9 California law, it's not a tax in order to go

10 down this road, resolving the parties' disputes

11 beyond the QP?

12 MS. McGRATH: I think that our

13 position is that the most straightforward way

14 for the Court to resolve this case is to say

15 that the fee that the county charged here is

16 indistinguishable from property taxes, special

17 assessments, and user fees as this Court has

18 always defined them.

19 JUSTICE KAVANAUGH: Wouldn't --

20 wouldn't --

21 JUSTICE ALITO: Counsel, I -- I -- I'm

22 puzzled by your statements about what the court

23 below held. It said it over and over again that

24 Nollan and Dolan do not apply to legislation.

25 "Only individualized development fees

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1 as distinguished from legislatively mandated

2 generally applicable development fees are

3 subject to the Nollan/Dolan test." That's on

4 page 407.

5 On 409, "While the Nollan/Dolan test

6 applies to monetary land loose" -- "land use

7 exactions which are imposed ad hoc on an

8 individual and discretionary basis, it does not

9 apply to generally applicable development impact

10 fees imposed through legislative action.

11 "As our Supreme Court has explained,

12 legislatively prescribed monetary fees as

13 distinguished from a monetary condition imposed

14 on an individual permit application on an ad hoc

15 basis that are imposed as a condition of

16 development are not subject to the Nollan/Dolan

17 test."

18 MS. McGRATH: I think, Justice Alito,

19 that each of those descriptions of the court of

20 appeals rule incorporates the additional nuances

21 that we are emphasizing here, which is not the

22 presence of legislation, it is a development

23 impact fee that applies as here generally to a

24 broad class of permit applicants, meaning it

25 applies the way that legislature -- legislatures

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1 typically make broad programmatic --

2 JUSTICE SOTOMAYOR: Counsel, you --

3 MS. McGRATH: -- descriptions

4 particularly --

5 JUSTICE SOTOMAYOR: -- you're fighting

6 -- you're fighting the words. And what's the

7 difference between that -- would that statement

8 apply to a legislature saying, you get a permit

9 only if you pay us 20 -- $20,000 or dedicate

10 10 percent of your land to -- to conservation?

11 Now that would be a taking, wouldn't it?

12 MS. McGRATH: It would be a taking.

13 JUSTICE SOTOMAYOR: So you're fighting

14 -- they were saying, if it's part of a

15 generalized scheme, no matter how it's imposed,

16 as opposed to an individual assessment, it's out

17 of Nollan/Dolan. So it's not. It can be in

18 Nollan/Dolan. The question is, is this type of

19 fee subject to Nollan/Dolan?

20 I agree with you, but that's what

21 Justice Alito was saying. They started from

22 a -- from a broader sense of saying there can

23 never be a taking if it's generalized --

24 generalized imposition by a legislature. And

25 that's just not true.

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1 MS. McGRATH: I -- I -- I don't take

2 the court of appeal to have applied that rule.

3 In California --

4 JUSTICE SOTOMAYOR: Well, you're

5 fighting how others read this.

6 JUSTICE KAVANAUGH: If they applied

7 that -- well, if they didn't apply that rule --

8 well, let's start over.

9 Let's assume that legislative

10 exactions are covered by Nollan/Dolan. And then

11 you want to say, but impact fees, I think, are

12 exempt from Nollan/Dolan. Right?

13 MS. McGRATH: That's correct.

14 JUSTICE KAVANAUGH: Okay. But

15 wouldn't that allow a county or entity,

16 government entity, to impose exorbitant impact

17 fees that are obviously being used to fund

18 improvements in the other part of the county

19 that the county can't get the county counsel or

20 whatever to pass tax increases for? And isn't

21 that a core concern of our entire jurisprudence

22 in this area?

23 MS. McGRATH: I -- I think that that

24 would not enable counties to do what you're

25 describing, Justice Kavanaugh. And I think that

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1 those limits would flow directly from the -- the

2 analogies that we're drawing to the special

3 assessment context, where the legislature does

4 have authority to decide which properties --

5 JUSTICE KAVANAUGH: Well --

6 MS. McGRATH: -- will be --

7 JUSTICE KAVANAUGH: -- can I just

8 interrupt? I'm sorry. You said impact fees are

9 not subject to scrutiny under Nollan/Dolan.

10 What, then, are the limits on impact

11 fees being used to coerce more money out of the

12 development to pay for other things going on in

13 the other part of the county that they can't get

14 the tax increases for? That's a --

15 MS. McGRATH: Well, I think, at a

16 minimum, here in California and in, I believe,

17 the 37 other states that the states' brief

18 identifies as setting limits on impact fees,

19 those fees would unquestionably not satisfy the

20 limits in those state laws which require --

21 JUSTICE KAVANAUGH: State laws. What

22 federal constitutional --

23 MS. McGRATH: I think --

24 JUSTICE KAVANAUGH: -- limits are

25 there, if any? Maybe -- you know, if you're

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1 just going to say rational basis, I'm not sure

2 that works, but -- but go ahead.

3 MS. McGRATH: I do think the Due

4 Process Clause would provide a check there. And

5 I also think that the Court could reason by

6 analogy to the special assessment and the user

7 fee cases where the Court has been clear that,

8 despite the deference that legislatures receive

9 in this area, they have to act reasonably. And

10 those reasonable limits include, for instance,

11 in -- in the user fee context, that if --

12 JUSTICE KAVANAUGH: Do you think it's

13 reasonable to impose impact fees that are not

14 designed to fund, say, the road that needs to be

15 built because of the development but to fund

16 improvements to schools on the other part --

17 side of the county?

18 MS. McGRATH: Absolutely not, and I

19 think that fee would unquestionably fail. That

20 would fail state law and I think would pose

21 serious questions under the Due Process Clause.

22 JUSTICE KAVANAUGH: Just serious

23 questions?

24 MS. McGRATH: I -- I -- I do not see

25 -- if there is no reasonable basis, and I don't

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1 think a reasonable basis --

2 JUSTICE KAVANAUGH: Well, the

3 reasonable basis is the county needs the money

4 to fund the schools.

5 MS. McGRATH: I don't think that's a

6 reasonable basis to impose that charge

7 exclusively on new development. And here again,

8 I would point to the special assessment cases

9 that makes -- that make clear that, typically,

10 when the government is charging fees to a

11 specific group of property owners, that is based

12 on its determination, subject to reasonableness,

13 but notwithstanding that a determination that

14 those properties will specifically benefit from

15 the public --

16 JUSTICE KAVANAUGH: What's the

17 difference between reasonableness as you're

18 describing it and rough proportionality and

19 essential -- and nexus?

20 MS. McGRATH: I -- I think it -- and I

21 think that actually touches on kind of the core

22 of what our dispute is here, which I think your

23 earlier questions were also touching on, Justice

24 Kavanaugh, is that we do not dispute as a matter

25 of state law or federal law that there has to be

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1 a connection between new development and the

2 fees that the county charges.

3 What we do dispute is that then when

4 the legislature has to justify how it imposed

5 that -- those -- imposes those fees, that it has

6 to do that on a parcel-by-parcel basis.

7 JUSTICE KAVANAUGH: Okay. So the

8 whole dispute then, I think, does come down

9 to -- we can use the adjectives, but you agree

10 rough proportionality has to apply, I think, and

11 -- and nexus. You say not Nollan/Dolan, but you

12 say the same words as Nollan/Dolan apply. But

13 the key dispute then is do we do that by looking

14 at the formula to see whether the formula is

15 roughly proportional, as Justice Kagan was

16 saying, or do we have to go to the individual

17 house and say, well, what about the impacts of

18 that house on the road?

19 MS. McGRATH: Right. I mean -- and

20 just to be clear, as I think everyone

21 understands, we dispute that there is any taking

22 anywhere in the picture, and so we would dispute

23 that any sort of constitutional principle in

24 addition to due process reasonableness

25 protections applies.

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1 But -- but accepting the hypothetical

2 or -- or answering, I think, more directly the

3 question, is, yes, the core practical problem

4 that this would create for counties is that it

5 -- it would disable counties from acting on the

6 predetermined bases that they routinely act in

7 this context and that they need to be able to

8 use to fund the kind of infrastructure

9 improvements that we are talking about, schools,

10 sewer systems, roads.

11 JUSTICE KAVANAUGH: Right.

12 MS. McGRATH: These are the kind of

13 infrastructure that counties --

14 JUSTICE KAVANAUGH: And I think the

15 next question then is how reticulated does the

16 formula have to be? And --

17 JUSTICE JACKSON: But can I -- can I

18 just --

19 JUSTICE KAVANAUGH: Can I just finish

20 that?

21 JUSTICE JACKSON: Sorry.

22 JUSTICE KAVANAUGH: And, you know,

23 what -- there's going to be litigation over

24 that. What -- what do -- what do you think?

25 How reticulated, because Justice Kagan said this

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1 one is very reticulated. I agree with that.

2 How -- how reticulated does it have to be to

3 satisfy constitutional scrutiny?

4 MS. McGRATH: Under -- under the

5 constitutional test, putting aside the three

6 dozen state laws that I think would require

7 exactly the -- the connection that California --

8 that El Dorado drew in this case, that the

9 5,000-page administrative record supports, I

10 think, as a matter of constitutional law, there

11 would need to be a line that the legislature

12 would need to draw between the properties on

13 which the fee is imposed and the nature of the

14 fee that I think would prevent -- and I would

15 certainly take the position that it would

16 prevent -- counties from -- from tagging new

17 developers exclusively to pay for entirely

18 unrelated public improvements.

19 JUSTICE KAVANAUGH: Sorry.

20 JUSTICE JACKSON: No, that's all

21 right. Sorry.

22 So Justice Kavanaugh has been

23 discussing the sort of core practical problem of

24 how do we figure out when the county has

25 overstepped and gone too far and there must be a

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1 limit. And all of that is true, but I guess I'm

2 concerned about the core legal problem that is

3 the threshold question of which test should

4 apply when, given the claims that are being made

5 by Mr. Sheetz in this case?

6 And so that takes me back to wondering

7 whether the most straightforward way to win in

8 this case, from your perspective, is not

9 necessarily to prove that this is a tax or prove

10 that this is, you know, a user fee, but to say

11 this is not a taking.

12 We have very clear, very

13 well-established legal principles as to what

14 qualifies as a taking. And whatever this is, I

15 think we can say that since it isn't the kind of

16 dedicated property appropriation that occurs in

17 Nollan, Dolan, and Koontz, that it's not a

18 taking, so this particular formula doesn't

19 apply.

20 Isn't -- isn't that the most

21 straightforward? Like Justice Gorsuch was --

22 was starting to investigate your position that

23 this qualifies as a tax. And so then we have to

24 sort of figure out, well, what does that mean?

25 Is it a tax? Can't you win by just saying this

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1 is not a taking?

2 MS. McGRATH: Yes. Absolutely. We

3 would welcome that opinion. That is our

4 position. And the reason that we invoke the tax

5 and the property tax and special assessment

6 context is that the Court has categorically said

7 those are not takings. But, absolutely, we

8 agree. There -- put -- but even putting all

9 that to the side, there is no possible taking

10 here.

11 I -- you know, the question was asked

12 earlier about could a county go to a development

13 and say you have to pay the fees that result

14 from the burdens on county -- county

15 infrastructure that flow from this development.

16 For instance, you need to pay for the sewer

17 improvements that are going to be needed to the

18 county's sewer system to account for the fact

19 that we are expecting an additional 5,000

20 residents to inhabit this new development.

21 Unquestionably, there is -- a county

22 could do that outside the permitting context,

23 and that's the answer to the question in this

24 case.

25 CHIEF JUSTICE ROBERTS: Thank you,

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1 counsel.

2 Justice Thomas?

3 Justice Alito?

4 JUSTICE ALITO: When you talk about

5 due process, are you talking about substantive

6 or procedural due process?

7 MS. McGRATH: I think procedural due

8 process.

9 JUSTICE ALITO: So what procedure --

10 the argument would be that certain procedures

11 have to be applied on an individualized basis

12 before this fee could be assessed against,

13 collected against a particular landowner?

14 MS. McGRATH: I think we would invoke

15 the same kind of due process principles that are

16 identified in cases like Bi-Metallic, which said

17 that due process -- procedural due process

18 operates in this area, but it operates at a

19 highly -- highly generalized level that requires

20 counties to do things like enact legislation,

21 provide opportunity for comment and feedback,

22 but that -- that counties do not -- it is

23 affirmatively rejected the idea that counties

24 need to do that on an individualized basis.

25 But, beyond that, Justice Alito, I

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1 also think -- if I can -- can return to

2 answering the rest of the --

3 JUSTICE ALITO: No. That was an

4 answer. Thank you.

5 CHIEF JUSTICE ROBERTS: Justice

6 Sotomayor?

7 JUSTICE SOTOMAYOR: No, thank you.

8 CHIEF JUSTICE ROBERTS: Justice Kagan?

9 JUSTICE KAGAN: So, Ms. McGrath, I

10 want to follow up on Justice Gorsuch's idea of

11 radical agreement. And I -- I -- I want to give

12 you -- suggest what it is that there is radical

13 agreement on and what it is that there is not

14 radical agreement on, and see if you agree with

15 me.

16 So what there is radical agreement on

17 is that you don't get a pass from

18 unconstitutional conditions analysis just

19 because you've passed generally applicable

20 legislation. And that's, of course, true in

21 unconstitutional conditions analysis generally,

22 and so too it's true of unconstitutional

23 conditions analysis in the property area. If

24 there has been a taking and that taking is being

25 leveraged in the permitting process by generally

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1 applicable legislation, there's no pass just

2 because that's the mechanism that's being used.

3 So first let me ask you if you agree

4 with that?

5 MS. McGRATH: I agree.

6 JUSTICE KAGAN: Okay. Here are two

7 things it seems to me that the parties

8 fundamentally disagree on, which is probably --

9 one of these two things is going to answer this

10 dispute in the end, but there are two things.

11 Is -- number one, was -- is there a taking at

12 all? Because if this is just something like a

13 tax, unconstitutional conditions analysis never

14 comes into play, and you say it never comes into

15 play, and Mr. Beard says it absolutely comes

16 into play. So that's one question that you're

17 very much at odds on. Is that correct?

18 MS. McGRATH: That's correct.

19 JUSTICE KAGAN: The second question

20 that you're very much at odds on is, even if you

21 assume that there has been some kind of taking

22 here and that unconstitutional analysis does

23 come into play -- and by that, I mean what we

24 have in past cases called Nollan/Dolan analysis,

25 right?

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1 Even if you assume that that

2 unconstitutional analysis comes into play, it

3 might look very different from what Nollan/Dolan

4 analysis looks like just because Nollan and

5 Dolan were focused on individual parcels,

6 individual property owners, and this is a

7 general scheme, and it would be very difficult

8 to apply Nollan and Dolan analysis literally to

9 a general scheme.

10 So that there might be ways in which

11 Nollan/Dolan analysis becomes something that,

12 you know, really looks different in application.

13 And I think Mr. Beard says no, not really, and

14 you say, yes, really. Is that correct?

15 MS. McGRATH: That's also correct.

16 JUSTICE KAGAN: So that's the

17 agreement. Those are the two big disagreements?

18 MS. McGRATH: I think that is correct,

19 Justice Kagan.

20 JUSTICE KAGAN: Okay. I just wanted

21 to make that clear.

22 CHIEF JUSTICE ROBERTS: Justice --

23 Justice Gorsuch?

24 JUSTICE GORSUCH: That's super helpful

25 because, as I read it, and I may be the only

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1 one, though I don't think so, the only QP was on

2 the first question, whether Nollan/Dolan applies

3 to legislative enactments. There -- there was a

4 circuit split. That's -- that's why we took the

5 case. And we could answer that and be done.

6 Now, if we went on, we have to decide

7 whether it's a tax for the first one, and on the

8 second one, we have to decide whether there's a

9 difference between legislative enactments in

10 gross and specific actions. On that, I guess, I

11 had a question.

12 Couldn't one recharacterize what

13 happened in Dolan as legislation in gross, there

14 was a county code that said if thou wants to

15 develop on a beach, thou will give 15-foot

16 easements. And all they did was pretty much

17 ministerially apply the legislative code.

18 So how are we supposed to draw a

19 distinction if we're going to get -- if we're

20 going to go down that road and try and decide

21 that question, which I don't think is before us,

22 but if we were to, how do we distinguish between

23 Dolan and your case?

24 MS. McGRATH: So I think there are two

25 bases of distinction. I think one relates to

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1 what Dolan itself decided. And, there, I think

2 that Dolan itself involved legislation that

3 looks very different from the legislation here

4 in two respects.

5 And, here, I would point the Court to

6 page 380 of the Dolan decision, which emphasized

7 two features of that ordinance. One was that it

8 allowed for variances, significant variances

9 from any sort of baseline mitigation floor that

10 the legislation imposes, and, number two, it

11 gave permitting officials discretion to identify

12 the amount of open space that was required under

13 that scheme when they --

14 JUSTICE GORSUCH: Yeah, but they

15 didn't -- they didn't do either of those things.

16 They just pretty much followed the rule, 15-foot

17 easement, boom, you've to give us a 15-foot

18 easement as I understood it.

19 MS. McGRATH: I think that's also, of

20 course, putting to the side the fact that that

21 case involved an easement and therefore

22 didn't -- didn't raise these questions.

23 JUSTICE GORSUCH: I understand that.

24 But that's all that -- that's the first can of

25 worms, which we're not getting -- I mean, we

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1 could say that this is a tax and that's a

2 different -- but this is the second can of worms

3 that -- that we're talking about now, which is

4 legislation versus specific, and I guess I'm not

5 sure where we draw that line.

6 MS. McGRATH: I think, there, the line

7 that we draw, which gets to the second part of

8 my answer to the first question, is on the

9 non-discretionary and mandatory nature of the

10 fees that were charged here.

11 Here, the fees are set by a

12 predetermined schedule. That is exactly what

13 the Petitioner is challenging.

14 JUSTICE GORSUCH: So, if there were a

15 predetermined schedule, but a potential for

16 variance existed, but they didn't vary, it would

17 then be on the Dolan side of the line rather

18 than your side of the line?

19 MS. McGRATH: I think, if it were a --

20 I think it's on -- the condition in Dolan is on

21 the Dolan side of the line primarily because

22 there's a taking.

23 But, here, I think that in a case

24 where there's significant discretion involved or

25 variances allowed, I think that would be a

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1 harder case and a different one. And, here,

2 we're emphasizing the non-discretionary and

3 mandatory nature, which we think, again, you

4 know, relates primarily to the similarity to

5 that.

6 JUSTICE GORSUCH: Thank you. Thank

7 you.

8 CHIEF JUSTICE ROBERTS: Justice

9 Kavanaugh?

10 JUSTICE KAVANAUGH: One question. On

11 the "is it a taking question" that Justice Kagan

12 raised and there's disagreement on that, and you

13 say there's not a taking and you had answered

14 Justice Jackson the same way, I think, though,

15 then your due process review does, I think -- I

16 just want to get back to this -- apply concepts

17 like rough proportionality and essential nexus

18 so long as that review is not applied at the

19 parcel-specific level. Is that correct?

20 MS. McGRATH: I think we would use

21 words like reasonableness or rationality rather

22 than rough proportionality, but I think, Justice

23 Kavanaugh, at the end of the day, I take your

24 question to be suggesting there's not a

25 significant difference in your mind between

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1 those two scenarios, in which case that -- that

2 is, I think, part of -- that is part of our --

3 our position, is that if any sort of heightened

4 review is necessary here, it needs to be

5 performed at a programmatic basis that looks at

6 the categories that the legislature itself has

7 drawn.

8 JUSTICE KAVANAUGH: Thank you.

9 CHIEF JUSTICE ROBERTS: Justice

10 Barrett?

11 JUSTICE BARRETT: No.

12 CHIEF JUSTICE ROBERTS: Justice

13 Jackson?

14 JUSTICE JACKSON: So I just want to

15 clarify. In your exchange with Justice Gorsuch,

16 who very clearly isolated the question

17 presented, as I read it, the question presented

18 at least as the Petitioner put it forward is

19 whether a permit exaction is exempt from the

20 unconstitutional conditions doctrine simply

21 because it's authorized by legislation.

22 So it seems to me that there is a

23 threshold assumption that the permit exaction

24 would otherwise trigger the unconstitutional

25 conditions doctrine, and the question is, is it

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1 exempt from that just because of legislation.

2 So, because there is disagreement

3 about whether it would trigger it to begin with,

4 I would think that to isolate the question

5 presented as -- at a minimum, we would have to

6 expressly preserve the assumption, right?

7 I mean, our -- our holding or our

8 opinion would have to say assuming that a permit

9 exaction of the nature of this one triggers the

10 unconstitutional, that we couldn't not say that,

11 right, in order to just isolate the question

12 presented?

13 MS. McGRATH: I think that's exactly

14 right, Justice Jackson. I think that's part of

15 the reason that we think we are directly

16 answering the question presented here, because

17 of that assumption that all permit conditions

18 are --

19 JUSTICE JACKSON: And -- and if it

20 turns out that the assumption is easy based on

21 our case law, let's say, the Court looks at this

22 and very clearly says or thinks that, you know,

23 if we don't have a dedicated appropriation of

24 land kind of scenario, then there is no taking,

25 would you encourage us to go ahead and say that

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1 in this case?

2 MS. McGRATH: Yes.

3 JUSTICE JACKSON: Thank you.

4 CHIEF JUSTICE ROBERTS: Thank you,

5 counsel.

6 Ms. Ross.

7 ORAL ARGUMENT OF ERICA L. ROSS

8 FOR THE UNITED STATES, AS AMICUS CURIAE,

9 SUPPORTING THE RESPONDENT

10 MS. ROSS: Thank you, Mr. Chief

11 Justice, and may it please the Court:

12 I'd like to hit three main points

13 which I think are responsive to a lot of the

14 conversation that we've been having this

15 morning.

16 First, on the question of how broadly

17 the question presented sweeps, I certainly agree

18 with you, Justice Jackson, that there is a

19 logically antecedent question baked into the

20 question presented, which is whether the

21 unconstitutional conditions doctrine applies

22 here at all. For reasons I'd like to talk about

23 in a moment, we don't think it does.

24 But, if the Court doesn't want to

25 reach that question, I think what's really

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1 important if it's going to say that there is no

2 sort of legislative exception from Nollan and

3 Dolan is for the Court to make clear that these

4 are still cases applying, as this Court said in

5 Koontz, a special application of the

6 unconstitutional conditions framework.

7 And so, when the parties go back

8 and -- and parties across this country read this

9 Court's decision, it remains clear that you have

10 to identify a taking for a Nollan/Dolan claim to

11 get off the ground.

12 Second, I think there was some

13 conversation about what is the focus of the

14 taking that Petitioner is suggesting here. I

15 think it was clear in his introduction this

16 morning and has been clear throughout the

17 briefing if you look at pages 25 to 26 in

18 particular of the blue brief that he's not

19 making any sort of claim regarding a taking of

20 his property, meaning the physical real

21 property.

22 What he is claiming is that this

23 $23,000 fee is itself a taking. And we think

24 that is not correct for all of the reasons that

25 have already been discussed this morning and

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1 that many of you have recognized.

2 I think this Court in Koontz talked

3 about taxes, user fees, and similar laws and

4 regulations, so I don't think that to prevail

5 the county necessarily has to show that this is

6 a tax or a user fee, but as Justice Barrett

7 pointed out earlier, I think it is quite similar

8 to the class of special assessments that this

9 Court has held for a hundred-plus years in cases

10 like Hauck and Fallbrook and French are not

11 subject to any sort of takings analysis or any

12 heightened takings analysis. They are subject

13 to normal constitutional constraints.

14 And I think this goes to the point

15 that no court or this Court at least to my

16 knowledge has never held that a widely

17 applicable fee paid by large numbers of people

18 to pay for government infrastructure is a

19 taking. And I think doing so in this case would

20 be -- would be very disruptive.

21 And I guess this gets me to the last

22 and third point about the disruptiveness of the

23 rule that I hear Petitioner to be asking. I

24 think he is asking for, as he has said, a

25 personal-specific analysis.

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1 I think that has several problems.

2 The workability ones certainly have already been

3 discussed, but I also think there's an element

4 of horizontal fairness here. When you have a

5 class and everyone within the class pays the

6 same amount, that actually can be viewed as far

7 more fair than having these one-off

8 individualized determinations.

9 I think, in -- in a -- in adopting a

10 standard that's more like what the states have

11 suggested in their amicus brief should the Court

12 go down the Nollan/Dolan road -- and, again, I

13 want to be clear, we don't think there's any

14 reason to do so, but if the Court is inclined to

15 do so, you know, I think it would be very

16 important, one, again, to say that this has to

17 operate at the class level, so the class at

18 which the legislature is acting, and, two, that

19 reasonable judgments, reasonable legislative

20 judgments need to be able to be made regarding

21 the class, how the -- how the county or the

22 local government is going to allocate the

23 burdens of taxation.

24 CHIEF JUSTICE ROBERTS: Counsel,

25 you -- you said that there would be no takings

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1 analysis with respect to a widely applicable

2 provision that covers a large number of people.

3 MS. ROSS: I think when we're talking

4 about money, when we're talking about a payment

5 for government services, so I think that makes

6 this case look a lot like a tax user fee.

7 Similar laws and regulations, as this Court said

8 in Koontz on page 615 of the opinion, are

9 outside of the -- the takings context and

10 outside of Nollan and Dolan.

11 CHIEF JUSTICE ROBERTS: So if it's

12 narrowly applicable and applies only to a

13 relatively small number of people, then the

14 takings analysis does apply?

15 MS. ROSS: No. I think the question

16 is -- what I'm trying to get at is this idea of

17 individualized ad hoc decision-making versus the

18 broadly applicable legislative standard --

19 CHIEF JUSTICE ROBERTS: Yeah, but,

20 obviously, that's a broad range. And I'm just

21 trying to get a sense of exactly where you would

22 have -- I mean, because this is a threshold

23 determination, but if it depends on

24 individualized analysis and you've got to figure

25 out, well, where along that spectrum does it

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1 apply, that's not a very helpful threshold.

2 MS. ROSS: So I think this is similar

3 to analyses that the Court has conducted in

4 other areas. I mean, I think there is -- we

5 cite it in our brief -- I apologize, the name of

6 the case is escaping me at the moment -- but

7 basically in the due process context, we do draw

8 this distinction between whether you get an

9 individualized hearing because we're really

10 talking about sort of one-offs or we're talking

11 about class-wide legislation.

12 I think what's really key here is

13 because this applies to a wide swath of

14 landowners, it's done at the class level. As I

15 said earlier, it -- it has horizontal fairness

16 and it has I think a greater responsiveness in

17 the political process than you have --

18 CHIEF JUSTICE ROBERTS: So are you

19 saying that if you have a provision that applies

20 categorically in terms of its phraseology but it

21 turns out there are only, you know, three houses

22 in the county that are going to be affected,

23 that you would analyze that differently?

24 MS. ROSS: So I'm not sure it's a

25 takings -- it becomes a takings problem, Mr.

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1 Chief Justice. And I apologize. I probably

2 should have said that initially. I think that,

3 you know, that may have sort of a -- an

4 arbitrariness question under the Due Process

5 Clause or an equal protection. Maybe it's not a

6 class of one, maybe it's a class of three

7 problem. But there would be a singling out

8 analysis. I just don't think that's anything

9 like what we have in this case.

10 JUSTICE GORSUCH: Ms. Ross, I -- I

11 certainly understand your point that classes

12 might be very informative when we're talking

13 about a tax or a user fee and whether it meets

14 rational basis test.

15 But if this were a taking -- and I'm

16 not saying it is, okay? I'm not sure we have to

17 answer that question, as I've already indicated.

18 But if -- if it were a taking, why would that

19 make a difference? If it actually -- if -- if

20 the legislature said we're going to take

21 everybody's property, and there's no question of

22 taking your property, how on earth would that be

23 better than an individualized agency official

24 saying I'm taking Ms. Ross's property and no one

25 else's?

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1 MS. ROSS: So, Justice Gorsuch, I

2 completely agree with you that this

3 consideration is not dispositive.

4 JUSTICE GORSUCH: It's relevant when

5 we get to taxes and user fees. I accept that.

6 But you'd agree that it also doesn't cut much if

7 we're actually talking about a true taking?

8 MS. ROSS: That's correct, Justice

9 Gorsuch. And I think that just reflects that

10 this Court has sort of always treated physical

11 appropriations of real property as the

12 quintessential taking, the classic taking as

13 this Court has said time and time again. It's

14 what the -- the clause, the text of the clause

15 itself, I think, is most focused --

16 JUSTICE GORSUCH: Yeah.

17 MS. ROSS: -- on, and so it makes

18 sense that we have different rules in that

19 context.

20 JUSTICE GORSUCH: Yeah. Thank you.

21 JUSTICE JACKSON: And so can you just

22 clarify, say a little bit more about that? I

23 mean, you seem fairly confident that this is not

24 a taking. So can you say exactly why that is?

25 MS. ROSS: Certainly, Justice Jackson.

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1 So I think it's not a taking because, as I think

2 I said earlier, this Court has never found a

3 taking in a situation in which the government is

4 charging a -- if you want to call it a tax, a

5 user fee, a other similar law or regulation, to

6 pay for public benefits, public infrastructure,

7 public services. It has never found a taking in

8 that context.

9 I think there are a few reasons why

10 that's so. First, of course, there is this sort

11 of oft-repeated line that taxes are not takings.

12 And I think that's -- that has meaning. And the

13 reason it has meaning is because the Court long

14 recognized that governments need to be able to

15 fund themselves and that when they do so, they

16 are not engaging in, again, this sort of core

17 taking physical appropriation of private

18 property activity.

19 I think if you wanted to put this in a

20 box -- you know, the user fee has been talked

21 about a lot this morning -- I think a special

22 assessment is a really good way of thinking

23 about this, as I think Justice Barrett noted

24 earlier. The -- the special assessment cases

25 make clear that not only can government charge

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1 taxes at sort of a general level, it can also do

2 it, it can define a particular district as in

3 Houck and Fallbrook and the other sort of

4 irrigation district cases or it can define a

5 particular class of property owners --

6 JUSTICE JACKSON: Does it -- does it

7 matter that it's doing that in connection with

8 property? What I understood Mr. Sheetz's

9 counsel to say is that when you do that in

10 connection with property, then we're sort of

11 getting into takings territory.

12 MS. ROSS: So I don't think a link to

13 property can be enough or any link to property

14 can be enough. And -- and if I could give two

15 quick examples. I mean, I think a property tax

16 obviously does that, and that has never been

17 thought to be a taking. And, similarly, I think

18 a transfer tax. I may really want to exercise

19 my right as a property holder or property owner

20 to sell my property, but nobody has ever thought

21 that the government engages in a taking when it

22 requires me to pay a certain percentage to

23 Maryland or the District of Columbia or whatever

24 it is when I sell my property.

25 So I don't think just any link to

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1 property is enough. I think, to bring this back

2 to Koontz, the link to property that was really

3 at issue there was the in lieu nature of the

4 fee. The choice on the table was pay me an --

5 or give me over a real property interest, an

6 easement that's going to destroy the right to

7 exclude that this Court has recognized as sort

8 of the core right in physical real property, or

9 pay an equivalent amount of money.

10 And the concern, I think, as this

11 Court made clear at page 612 of the opinion,

12 when it talking about the anti-circumvention

13 rationale, is that if you allow the -- the

14 county to do that -- that, give me one or the

15 other, it's always going to be able to get the

16 property that it wanted at the outset because it

17 can just keep ratcheting up the fee.

18 JUSTICE ALITO: Did you -- do you --

19 do you agree that the California court held that

20 Nollan/Dolan does not apply to legislation?

21 MS. ROSS: So, Justice Alito, with all

22 due respect to the California Court of Appeal, I

23 think the -- the opinion is less than clear in

24 some places. I do think there are parts of the

25 opinion -- I think my friend pointed to pages 16

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1 to 17, if I'm remembering correctly. There's a

2 footnote that sort of analogizes this to special

3 assessment and, I think, refers to some of the

4 cases that talk about the in lieu nature. And

5 so if you wanted to squint at the opinion and

6 find a more nuanced rule, I think you could do

7 that.

8 CHIEF JUSTICE ROBERTS: Thank you,

9 counsel.

10 Justice Alito, anything?

11 Justice Sotomayor?

12 Justice Kagan?

13 Justice Kavanaugh?

14 JUSTICE KAVANAUGH: One question. The

15 concern on the other side, I think, is that

16 property developers and owners will be charged

17 impact fees to pay for costs of the county more

18 generally, including on other sides of the

19 county. You -- you say the Takings Clause has

20 nothing to say about that.

21 What constitutional limits, if any,

22 are there, and how would you phrase the exact

23 test?

24 MS. ROSS: Sure. So I think the --

25 the Takings Clause, as some of Justice Jackson's

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1 questions went to earlier, doesn't really speak

2 to this because, again, it's not talking about

3 things that the government can't do. It's

4 talking about things the government has to pay

5 for when it does do. And so I don't think it's

6 necessarily imposing a substantive limit.

7 But I think other -- certainly state

8 law has filled a lot of this area. Indeed,

9 Dolan sort of drew its test from state law

10 standards that have been well established for

11 decades and, I think, have only gotten sort of

12 more onerous since then.

13 But -- but federal constitutional

14 provisions, I think there are due process

15 checks. As I mentioned to the Chief Justice,

16 there would be equal protection checks as well.

17 JUSTICE KAVANAUGH: And what -- what

18 would be the phrasing of the due process check?

19 MS. ROSS: So I think the way that

20 this Court has described it is essentially a --

21 a reasonableness or an arbitrariness test. I

22 acknowledge that courts have given the

23 government significant discretion in this area

24 and the legislature significant discretion in

25 this area, but I think that is often true when

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1 we're talking, again, about generally applicable

2 legislation that isn't impeding on -- or isn't

3 taking a private property interest itself.

4 JUSTICE KAVANAUGH: Thank you.

5 CHIEF JUSTICE ROBERTS: Justice

6 Barrett?

7 Justice Jackson?

8 Thank you, counsel. The case is

9 submitted. Oh, rebuttal. I'm sorry.

10 (Laughter.)

11 CHIEF JUSTICE ROBERTS: I was up late

12 last night.

13 REBUTTAL ARGUMENT OF PAUL J. BEARD, II

14 ON BEHALF OF THE PETITIONER

15 MR. BEARD: Thank you, Mr. Chief

16 Justice.

17 Just a few points. The other

18 interesting thing about the court of appeal's

19 decision is that it doesn't treat this exaction

20 as a tax or a user fee or anything else, other

21 than a mitigation requirement.

22 So this case comes to the Court on the

23 premise this -- that this is a mitigation

24 requirement and that the only reason the court

25 of appeal thought that Nollan and Dolan don't

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1 apply is because of its legislative character.

2 In other words, the courts in California agree

3 with us that at least in some cases, ad hoc

4 impact fees, those are subject to Nollan and

5 Dolan, which I think is an interesting

6 concession from the California courts even, that

7 -- that go contrary -- that goes contrary to the

8 counties' and the United States Government's

9 position.

10 On the issue of due process, rational

11 -- equal protection, yes, those clauses could be

12 available in a challenge like this, but the

13 problem, of course, is that they provide very

14 little protection to the property owner.

15 Substantive due process, as I understand the

16 cases, would require a showing of arbitrary and

17 capricious on the part of the property owner

18 challenging it. Equal protection would require

19 rational basis.

20 It's Nollan and Dolan that provides --

21 that provide the kind of robust protections for

22 property owners that -- that this context

23 requires. On administrability we are not -- we

24 are not asking for parcel-specific analyses or

25 project-specific analyses.

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1 As such, it is true, as we state in

2 our reply brief, that a project-specific

3 analysis is the way to go if the government

4 wants to guarantee for itself that its

5 mitigation will pass constitutional muster, that

6 the constitutional outcome required by Nollan

7 and Dolan, nexus and rough proportionality are

8 met. The only way to do that is on a

9 project-specific basis.

10 Now, the county here decided to impose

11 its impact fee without any kind of

12 administrative proceeding or hearing or anything

13 like that. And we're not challenging that

14 aspect, but it's curious, because in Nollan and

15 Dolan, you did have an administrative process

16 attached to a conditional permit. And so there

17 the government was able to make that

18 individualized determination that it's

19 legislative mandate was or was not tailored to

20 the particular impacts of the project.

21 Finally, everyone loves good roads and

22 schools and public infrastructure, so the

23 government certainly has many tools at its

24 disposal, including taxes, to pay for those.

25 What we're saying is that the

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1 government can't select a few. The one or two

2 or -- or -- or a few property owners who happen

3 to need a permit at any given time to select

4 them to bear the burdens of paying for that

5 public infrastructure, and all Nollan and Dolan

6 do is ensure that that's not happening, that

7 what the government is doing is mitigation and

8 nothing more.

9 Thank you, Your Honor.

10 CHIEF JUSTICE ROBERTS: Thank you,

11 counsel. The case is submitted.

12 (Whereupon, at 11:31 a.m., the case

13 was submitted.)

14

15

16

17

18

19

20

21

22

23

24

25

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71:2,7 74:15 83:25 85:2 88:17 79:16 86:14 87:1 92:20 96:
$ accept [1] 89:5 although [1] 32:25 1
B
$10 [2] 19:11,13 accepting [1] 68:1 American [1] 36:6 applying [6] 40:4 49:19 58: back [10] 36:13 42:12 54:
$20,000 [1] 62:9 access [1] 58:19 amicus [6] 1:24 2:10 36:5 24,25 59:3 83:4 23 56:8,11 57:24 70:6 79:
$23,000 [3] 3:15 13:11 83: account [1] 71:18 38:16 82:8 85:11 approaching [1] 38:18 16 83:7 92:1
23 acknowledge [1] 94:22 amount [9] 18:12,13 24:20 appropriate [1] 27:2 baked [1] 82:19
$50,000 [1] 28:9
across [4] 4:21 26:17 49:7 27:17 42:15 44:20 77:12 appropriated [1] 46:17 BARRETT [22] 11:12,19
12:14 13:15,23 22:2,4 40:
1 83:8 85:6 92:9 appropriates [1] 10:4
16,17 41:11,20,23 42:4,22
10 [2] 19:12 62:10 act [2] 65:9 68:6 amplifies [1] 4:15 appropriating [1] 46:3
acting [2] 68:5 85:18 analogies [1] 64:2 appropriation [6] 31:5 43: 43:7,19 44:14 80:10,11 84:
10:02 [2] 1:15 3:2 6 90:23 95:6
11:31 [1] 98:12 action [3] 34:4,7 61:10 analogizes [1] 93:2 1 47:3 70:16 81:23 90:17
actions [1] 76:10 analogy [1] 65:6 appropriations [1] 89:11 based [7] 28:4 36:14 50:15
1200 [1] 28:6 53:16,17 66:11 81:20
15-foot [4] 58:19 76:15 77: activities [1] 32:12 analyses [3] 87:3 96:24,25 arbitrariness [2] 88:4 94:
activity [1] 90:18 analysis [20] 27:13 58:21 21 baseline [1] 77:9
16,17 bases [3] 47:23 68:6 76:25
1500 [1] 28:7 actor [2] 58:24,25 73:18,21,23 74:13,22,24 arbitrary [1] 96:16
actors [3] 34:2,3 59:3 75:2,4,8,11 84:11,12,25 86: area [7] 63:22 65:9 72:18 basically [2] 46:19 87:7
16 [2] 36:13 92:25 basis [20] 16:11 25:10 36:9
17 [1] 93:1 acts [2] 52:11,14 1,14,24 88:8 97:3 73:23 94:8,23,25
actually [11] 12:17 14:12, analyze [2] 44:1 87:23 areas [1] 87:4 41:2 51:1,22 61:8,15 65:1,
1960 [1] 43:10 25 66:1,3,6 67:6 72:11,24
20 17:21 33:17 40:6 52:3 Angeles [1] 1:18 aren't [1] 27:22
2 66:21 85:6 88:19 89:7 animating [1] 48:16 argue [2] 7:3 34:25 80:5 88:14 96:19 97:9
20 [3] 29:9 42:16 62:9 ad [5] 5:1 61:7,14 86:17 96: annihilation [1] 13:9 argued [2] 8:11,12 beach [2] 58:20 76:15
20,000-foot [1] 24:21 3 another [3] 7:9 9:18 58:1 argument [27] 1:14 2:2,5,8, bear [2] 48:17 98:4
2019 [1] 39:23 addition [1] 67:24 answer [17] 5:15 40:12 41: 12 3:4,7 6:10 9:21 10:11 BEARD [96] 1:18 2:3,13 3:
additional [2] 61:20 71:19 12 53:11,17,17 54:1,4,6 55: 11:20 12:5 13:18 16:4 23: 6,7,9 5:14,22 6:13 7:13 8:
2024 [1] 1:11
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25 [1] 83:17
adjectives [1] 67:9 answered [2] 53:11 79:13 82:7 95:13 6,13 15:12,22,25 16:6,9,22,
26 [1] 83:17
administrability [1] 96:23 answering [4] 54:14 68:2 arguments [4] 8:17 56:8 25 17:14 18:14 19:3 20:8,
3 administrative [5] 40:2 58: 73:2 81:16 57:25 58:11 20 21:16 22:12,14,22 23:7,
3 [1] 2:4 18 69:9 97:12,15 antecedent [1] 82:19 arises [1] 42:7 9 24:24 25:3,13 26:25 27:
37 [1] 64:17 administratively [1] 38:21 anti-circumvention [1] array [1] 50:13 24 28:21,24 29:2 30:8,16
380 [1] 77:6 adopted [1] 4:5 92:12 articulated [2] 21:14 44:14 32:22 33:18,19 34:16,24
adopting [1] 85:9 anticipate [1] 39:21 as-applied [1] 34:11 35:5,7,11,15 37:5 38:8,25
4 39:2,6,15 40:14 41:10,13,
affect [1] 8:5 anybody [2] 24:11,18 aside [2] 26:4 69:5
400 [1] 33:3
21,24 42:19,25 43:9,20 44:
affected [1] 87:22 Anytime [2] 9:23 10:3 asks [1] 9:24
407 [1] 61:4 7,25 45:8,18,20,22 46:2,7,
affirmatively [1] 72:23 apologize [2] 87:5 88:1 aspect [1] 97:14
409 [1] 61:5 15 47:1,10 48:14,22,25 74:
afoul [1] 36:17 apparent [1] 58:10 assert [1] 47:3
44 [1] 54:10 15 75:13 95:13,15
agency [1] 88:23 appeal [8] 51:16 56:24 57: assessed [2] 22:19 72:12
49 [1] 2:7 bears [2] 37:7 59:11
agents [1] 58:18 13,14,20 63:2 92:22 95:25 assessment [11] 22:9 42:
5 agree [17] 23:19 31:15 34: appeal's [1] 95:18 14 43:4 62:16 64:3 65:6 become [1] 43:14
22 52:6 57:23 62:20 67:9 appeals [2] 55:19 61:20 66:8 71:5 90:22,24 93:3 becomes [3] 43:13 75:11
5,000 [3] 29:16 33:3 71:19
69:1 71:8 73:14 74:3,5 82: APPEARANCES [1] 1:17 assessments [5] 49:24 55: 87:25
5,000-page [1] 69:9
17 89:2,6 92:19 96:2 applicable [20] 4:4,13 5:1, 10 59:17 60:17 84:8 bed [1] 32:7
500 [2] 24:12 33:3
agreed [1] 21:4 17 6:1 22:16 26:8,15 27: Assistant [1] 1:22 begin [1] 81:3
6 agreeing [1] 56:20 12,22 42:14 61:2,9 73:19 Association [1] 36:6 beginning [1] 44:16
6,000 [1] 33:3 agreement [6] 56:3 73:11, 74:1 84:17 86:1,12,18 95: assume [6] 23:18 26:3,6 behalf [8] 1:19,21 2:4,7,14
612 [1] 92:11 13,14,16 75:17 1 63:9 74:21 75:1 3:8 49:3 95:14
615 [1] 86:8 ahead [3] 22:5 65:2 81:25 applicant [1] 37:18 assuming [1] 81:8 believe [2] 10:12 64:16
AILEEN [3] 1:20 2:6 49:2 applicants [2] 21:24 61:24 assumption [4] 80:23 81: belongs [1] 41:17
8 below [12] 4:6 8:11 19:21
ALITO [21] 12:24 13:3,17 application [6] 6:11 23:21 6,17,20
82 [1] 2:11 49:13 51:17 55:20 56:11,
23:3,9 24:24 25:2,9 26:10 50:5 61:14 75:12 83:5 attached [1] 97:16
9 36:2 60:21 61:18 62:21 72: applied [12] 22:9 24:25 51: attempt [1] 50:19 25 57:13,20 58:8 60:23
3,4,9,25 73:3 92:18,21 93: 16 53:24 56:25 57:13,14 authority [2] 44:3 64:4 benefit [2] 50:17 66:14
9 [1] 1:11
10 58:8 63:2,6 72:11 79:18 authorization [2] 53:13 54: benefits [1] 90:6
95 [1] 2:14
allege [1] 47:6 applies [18] 5:12 10:11,13 17 bet [1] 30:2
A alleged [1] 30:25 24:4,5,7 36:22 44:11 50: authorized [2] 53:25 80:21 better [2] 39:23 88:23
a.m [3] 1:15 3:2 98:12 allegedly [1] 23:12 14 61:6,23,25 67:25 76:2 automatic [1] 54:3 between [16] 8:13 9:11,13
A17 [1] 56:25 alleviate [1] 49:16 82:21 86:12 87:13,19 available [3] 34:23 35:12 13:11 25:21 28:6 41:1 58:
ability [3] 3:16 8:6 51:2 allocate [1] 85:22 apply [34] 4:2 5:6,12 23:25 96:12 22 62:7 66:17 67:1 69:12
able [9] 5:15 47:23,25 56: allow [3] 46:21 63:15 92:13 24:1,2,22 25:12 26:8 30: average [1] 24:16 76:9,22 79:25 87:8
20 68:7 85:20 90:14 92:15 allowed [4] 18:21 57:24 77: 12 35:25 45:19 48:15 50:7 averages [2] 31:21 32:16 beyond [5] 3:17 15:18 18:
97:17 8 78:25 52:16,17 53:5 55:22 56:9 aware [1] 18:16 20 60:11 72:25
above-entitled [1] 1:13 allowing [1] 56:7 60:24 61:9 62:8 63:7 67: awkwardness [1] 47:19 Bi-Metallic [1] 72:16
absolutely [5] 30:15 65:18 already [6] 21:4 52:15 53:4 10,12 70:4,19 75:8 76:17 big [1] 75:17

Heritage Reporting Corporation

Sheet 1 $10 - big
 100
Official - Subject to Final Review
bikers [1] 39:13 Case [49] 3:4 6:19,19 7:7,9 16,21 55:12 56:1 71:25 73: compact [1] 29:21 convenience [1] 23:8
bit [3] 32:17,18 89:22 8:5 13:22,22 14:9,12 18: 5,8 75:22 79:8 80:9,12 82: compacted [1] 29:13 conversation [2] 82:14 83:
blanche [1] 43:2 22 21:19,20 23:11,14 25:5 4,10 85:24 86:11,19 87:18 compel [1] 51:6 13
block [1] 19:11 27:15 29:7 34:10 43:9 44: 88:1 93:8 94:15 95:5,11, compels [1] 49:19 cordoned [1] 50:12
blue [2] 54:11 83:18 9,15 49:14 51:9 52:11,22 15 98:10 compensate [2] 16:18 47: core [8] 58:12 63:21 66:21
boom [1] 77:17 55:25 57:5 60:14 69:8 70: choice [3] 3:15 13:11 92:4 7 68:3 69:23 70:2 90:16 92:
booth [1] 44:18 5,8 71:24 76:5,23 77:21 church [1] 32:6 compensation [8] 21:10, 8
borne [2] 48:17,18 78:23 79:1 80:1 81:21 82: churches [1] 17:25 12 44:6 46:9,11,14,16,18 Correct [12] 15:22 27:25
both [4] 8:17 24:24 56:7 59: 1 84:19 86:6 87:6 88:9 95: circuit [1] 76:4 complete [1] 13:9 35:5 63:13 74:17,18 75:14,
2 8,22 98:11,12 circumstance [2] 34:13 completely [1] 89:2 15,18 79:19 83:24 89:8
box [1] 90:20 cases [20] 6:8 7:4 10:20 20: 38:1 concede [1] 22:24 correctly [2] 42:2 93:1
breakfast [1] 32:7 22 31:16 53:3,4,8 60:4 65: circumstances [2] 15:1 conceded [1] 5:24 cost [1] 18:21
brief [10] 36:4,12 54:7,11 7 66:8 72:16 74:24 83:4 24:25 concedes [1] 5:20 costly [1] 40:2
59:21 64:17 83:18 85:11 84:9 90:24 91:4 93:4 96:3, cite [1] 87:5 conceive [1] 45:8 costs [1] 93:17
87:5 97:2 16 cited [1] 43:10 concept [3] 18:9 19:22 36: couldn't [3] 15:21 76:12
briefing [2] 58:10 83:17 categorical [2] 25:10 56: City [1] 30:3 10 81:10
briefs [2] 36:5 38:16 14 claim [5] 12:24 47:23 48:10 concepts [1] 79:16 counsel [13] 29:4 48:24 55:
bring [3] 48:10 51:22 92:1 categorically [7] 51:18,25 83:10,19 conceptualized [1] 12:25 14 60:21 62:2 63:19 72:1
bringing [1] 51:4 52:8 54:18 55:10 71:6 87: claimed [2] 18:22,24 concern [4] 7:18 63:21 92: 82:5 85:24 91:9 93:9 95:8
broad [7] 4:10 23:25 25:21 20 claiming [1] 83:22 10 93:15 98:11
31:20 61:24 62:1 86:20 categories [14] 17:17,22 claims [2] 48:8 70:4 concerned [2] 20:23 70:2 counties [9] 18:7 63:24 68:
broad-brushed [1] 28:8 18:1 31:21,24 32:3,8,11,24 clarify [2] 80:15 89:22 concerns [1] 47:14 4,5,13 69:16 72:20,22,23
broader [1] 62:22 40:21 41:1,22 42:2 80:6 class [14] 25:21 30:21 38: concession [1] 96:6 counties' [1] 96:8
broadly [4] 22:16 30:9 82: categorized [1] 39:25 12 61:24 84:8 85:5,5,17,17, concrete [2] 7:12 29:12 countless [1] 49:6
16 86:18 category [9] 18:11 23:25 21 87:14 88:6,6 91:5 condition [11] 10:17 11:3, country [3] 4:21 49:7 83:8
Brushaber [1] 43:10 24:2,5 28:9 32:25 41:4,6, class-wide [1] 87:11 5 53:8,15 54:8 55:3 57:19 COUNTY [45] 1:6 3:5,11 4:
build [12] 3:12 10:22 13:8, 16 classes [3] 36:14,16 88:11 61:13,15 78:20 5 10:21 14:15,19,24 18:24
12 14:16 15:8 19:8 20:18 cause [1] 15:9 classic [2] 18:6 89:12 conditional [1] 97:16 27:11 32:9,21 33:6 34:24
21:25 24:18,19,21 centuries' [1] 49:21 classify [1] 38:6 conditioning [1] 46:13 37:2 38:16 39:22 42:12 44:
building [5] 8:3 13:4,14 15: cert [2] 8:13 23:16 Clause [24] 4:8 6:12,14 9: conditions [22] 4:9 10:16 18 49:7 50:15 59:9,15 60:
10 17:24 certain [6] 15:9 44:20 51: 23,25 10:14 12:23 30:11 12:12 26:7,12 29:9 50:6 15 63:15,18,19,19 64:13
builds [2] 24:12 42:10 17 55:8 72:10 91:22 42:24 43:2 45:17 46:9 48: 53:6,23 54:19,25 58:13,21 65:17 66:3 67:2 69:24 71:
built [2] 19:8 65:15 certainly [13] 13:2,5 34:25 2,10,15,15 51:6 65:4,21 88: 73:18,21,23 74:13 80:20, 12,14,14,21 76:14 84:5 85:
burden [4] 18:4 21:22 33:7, 35:11 38:1,12 69:15 82:17 5 89:14,14 93:19,25 25 81:17 82:21 83:6 21 87:22 92:14 93:17,19
14 85:2 88:11 89:25 94:7 97: clauses [1] 96:11 conducted [1] 87:3 97:10
burden-shifting [4] 33:6, 23 clear [16] 8:4 17:11 49:13 confident [1] 89:23 county's [3] 5:7 50:8 71:18
16 37:17 48:4 challenge [7] 33:25,25 34: 65:7 66:9 67:20 70:12 75: confiscation [1] 31:5 course [9] 26:2 32:7 34:1
burdening [1] 9:15 11,12 41:25 43:18 96:12 21 83:3,9,15,16 85:13 90: confiscatory [1] 43:14 35:7 36:20 73:20 77:20 90:
burdens [6] 7:22 8:8 48:17 challenged [2] 25:6 37:5 25 92:11,23 confused [2] 11:20 43:24 10 96:13
71:14 85:23 98:4 challenges [1] 37:23 clearly [3] 31:7 80:16 81: connected [1] 47:4 COURT [63] 1:1,14 3:10 4:
burdensome [1] 38:22 challenging [4] 48:13 78: 22 connection [8] 23:11,13 2 5:5,7,14,23 6:16 17:10
business [1] 17:25 13 96:18 97:13 client [3] 42:10,17 44:17 25:21 45:25 67:1 69:7 91: 20:1 23:19 29:8 49:5,22
buy [1] 23:4 chance [1] 38:24 close [3] 23:11,12 39:12 7,10 50:2,11 51:16 52:15 54:12
change [1] 51:6 code [2] 76:14,17 consequences [2] 40:22 55:8,19 56:24 57:12,14,20
C character [1] 96:1 coerce [1] 64:11 50:24 58:1,2 60:14,17,22 61:11,
calculate [1] 24:17 characterize [3] 14:11,11 coercive [1] 30:18 conservation [2] 14:3 62: 19 63:2 65:5,7 71:6 77:5
calculations [1] 29:17 22:8 collected [1] 72:13 10 81:21 82:11,24 83:3,4 84:
calibrated [1] 17:12 characterized [2] 13:6 14: Columbia [1] 91:23 consideration [1] 89:3 2,9,15,15 85:11,14 86:7 87:
CALIFORNIA [14] 1:6,18, 7 come [5] 30:4 40:7 45:6 67: consistent [2] 6:14 15:23 3 89:10,13 90:2,13 92:7,11,
20 17:1 60:1,2,9 63:3 64: characterizing [1] 14:8 8 74:23 Constitution [3] 15:24 17: 19,22 94:20 95:18,22,24
16 69:7 92:19,22 96:2,6 charge [4] 32:14 49:23 66: comes [12] 7:16 19:16 25: 2 39:6 Court's [7] 3:21 4:7,19 5:8
call [2] 37:13 90:4 6 90:25 14 35:24 42:12 43:3 44:22 constitutional [14] 36:20 6:15 51:7 83:9
called [1] 74:24 charged [3] 60:15 78:10 74:14,14,15 75:2 95:22 39:3 43:12 60:4 64:22 67: courtroom [1] 56:20
calling [1] 29:24 93:16 coming [2] 33:12 47:21 23 69:3,5,10 84:13 93:21 courts [6] 18:25 29:19 56:
came [3] 1:13 4:3 36:13 charges [3] 49:8 50:11 67: command [2] 58:24 59:2 94:13 97:5,6 11 94:22 96:2,6
campground [1] 32:7 2 commands [1] 59:4 constitutionally [3] 43:25 cover [1] 42:17
candid [1] 54:6 charging [3] 44:20 66:10 comment [1] 72:21 52:13 60:8 covered [1] 63:10
cannot [2] 21:21 50:7 90:4 commercial [4] 32:5,5 33: constraints [1] 84:13 covers [1] 86:2
cap [2] 29:12,22 check [2] 65:4 94:18 9,12 context [20] 7:17 10:4 26: crafted [1] 39:24
capital-intensive [1] 51:3 checks [2] 94:15,16 committed [1] 47:2 19,20 30:19 42:7,20 45:2 create [1] 68:4
capricious [1] 96:17 CHIEF [45] 3:3,9 6:4,6,23 8: committing [1] 3:25 52:17 55:5 64:3 65:11 68: created [1] 42:2
carefully [2] 34:12 35:4 19 22:3,5,6,13,15 29:3 31: common [1] 40:1 7 71:6,22 86:9 87:7 89:19 creates [1] 50:17
cars [1] 24:17 11 33:20 35:18 40:15 43: commonly [1] 54:21 90:8 96:22 creating [2] 39:24 40:6
carte [1] 43:2 21 45:5 48:23 49:1,4 53: commonplace [1] 50:23 contrary [2] 96:7,7 cries [1] 4:17
Heritage Reporting Corporation
Sheet 2 bikers - cries
 101
Official - Subject to Final Review
critical [1] 38:13 9,12,17 50:15,16 51:4,5,18 75:5,8 76:13,23 77:1,2,6 enough [3] 91:13,14 92:1 23,25 59:3
critically [1] 50:19 54:9 57:16 60:25 61:2,9, 78:17,20,21 83:3 86:10 94: ensure [3] 3:24 5:2 98:6 exempt [8] 30:10 43:2,17
curiae [3] 1:24 2:11 82:8 16,22 64:12 65:15 66:7 67: 9 95:25 96:5,20 97:7,15 enterprises [1] 32:12 52:24 53:22 63:12 80:19
curious [1] 97:14 1 71:12,15,20 98:5 entire [2] 31:2 63:21 81:1
current [2] 38:17,18 difference [9] 8:13 25:4 58: Dolan's [1] 28:2 entirely [3] 16:10 20:14 69: exemption [5] 23:17 54:3
cut [2] 26:17 89:6 22 59:6 62:7 66:17 76:9 dollars [1] 42:16 17 56:14 57:10 58:15
79:25 88:19 done [4] 42:1 47:5 76:5 87: entitled [2] 5:4 43:6 exempts [1] 54:18
D different [22] 6:11 13:17 14 entity [2] 63:15,16 exercise [1] 91:18
D.C [2] 1:10,23 16:11 17:22 18:1,7,8,9 19: door [1] 11:6 environment [1] 10:23 exercising [1] 43:4
dangerous [1] 4:7 24 25:22 29:9 32:11,12 36: DORADO [4] 1:6 3:5 49:7 Equal [5] 48:10 88:5 94:16 exist [2] 18:15 21:12
day [1] 79:23 16 59:9,14 75:3,12 77:3 69:8 96:11,18 existed [1] 78:16
dealing [2] 33:24 34:7 78:2 79:1 89:18 down [12] 11:8,8 30:4 35: equivalent [1] 92:9 exit [1] 19:12
decades [1] 94:11 differently [1] 87:23 24 37:1 43:3 47:16 59:19 ERICA [3] 1:22 2:9 82:7 exits [1] 19:12
decide [12] 5:10 31:14,19 difficult [1] 75:7 60:10 67:8 76:20 85:12 escape [1] 4:23 exorbitant [1] 63:16
41:8 57:22 59:5 60:6,7 64: dire [1] 50:24 dozen [1] 69:6 escaping [1] 87:6 expand [1] 50:22
4 76:6,8,20 direct [2] 6:17,20 drainage [1] 29:10 esoteric [1] 13:21 expect [1] 39:20
decided [3] 26:16 77:1 97: directing [1] 46:3 draw [5] 69:12 76:18 78:5, especially [1] 37:23 expecting [1] 71:19
10 direction [1] 40:3 7 87:7 ESQ [4] 2:3,6,9,13 explained [1] 61:11
decides [1] 27:1 directly [3] 64:1 68:2 81:15 drawing [1] 64:2 ESQUIRE [2] 1:18,20 explicitly [1] 6:16
deciding [1] 40:24 dirt [2] 29:13,21 drawn [5] 39:10 40:20,25 essence [4] 8:18 19:5,23 expressly [1] 81:6
decision [7] 4:6,20 6:15 disable [1] 68:5 41:9 80:7 36:7 extended [1] 29:11
26:14 77:6 83:9 95:19 disagree [5] 21:5 34:21 35: drew [3] 38:4 69:8 94:9 essential [3] 37:7 66:19 79: extent [1] 47:15
decision-making [1] 86: 8,10 74:8 drill [1] 37:1 17 extort [1] 7:19
17 disagreement [3] 58:12 drive [1] 22:19 essentially [2] 5:24 94:20 extorts [1] 45:13
dedicate [2] 21:18 62:9 79:12 81:2 Due [19] 48:1,3 65:3,21 67: established [1] 94:10 extracting [1] 46:12
dedicated [4] 14:21 45:16 disagreements [1] 75:17 24 72:5,6,7,15,17,17 79:15 evaluate [1] 27:10 extractions [1] 9:22
70:16 81:23 disaster [1] 36:8 87:7 88:4 92:22 94:14,18 evaluation [1] 26:13 EZ [1] 23:4
dedication [3] 9:12 44:4 discourage [1] 33:11 96:10,15 evaluations [1] 18:2
50:20 discretion [4] 77:11 78:24 dynamic [1] 15:4 even [13] 7:4 8:12 10:18 17:
F
default [2] 37:13,14 94:23,24 6 29:15 30:20 55:20 58:9 faced [1] 3:14
deference [1] 65:8 discretionary [1] 61:8
E 60:8 71:8 74:20 75:1 96:6 facial 34:11 41:25
[2]
deferential [1] 30:16 discussed [3] 53:5 83:25 each [5] 25:5 53:2,4,7 61: Everybody [2] 24:14 42:14 fact [10] 20:9,12 21:17 34:3
define [2] 91:2,4 85:3 19 everybody's [1] 88:21 42:6 43:17 47:21 54:2 71:
defined [3] 18:18 45:11 60: discussing [1] 69:23 earlier [8] 42:25 66:23 71: Everyone [4] 17:5 67:20 18 77:20
18 disposal [1] 97:24 12 84:7 87:15 90:2,24 94: 85:5 97:21 fail [2] 65:19,20
defines [1] 17:2 dispositive [1] 89:3 1 exact [6] 4:14 26:3,11 27: fair [2] 34:14 85:7
demand [9] 6:17,21 7:16, dispute [9] 35:14 66:22,24 earth [1] 88:22 17 41:18 93:22 fairly [1] 89:23
22 9:11,13 11:1 12:21 30: 67:3,8,13,21,22 74:10 easement [15] 7:2 9:6 13:1, exaction [14] 4:12,15,16 5: fairness [2] 85:4 87:15
10 disputes [1] 60:10 3 14:2,2,4,17,21,25 27:3 13 6:22 11:23 42:9 47:4 fall [2] 51:18,25
demanded [1] 12:16 disregard [1] 50:21 77:17,18,21 92:6 52:25 53:22 80:19,23 81:9 Fallbrook 84:10 91:3
[2]
demanding [3] 12:9 13:25 disrupt [1] 51:2 easements [1] 76:16 95:19 fallen [1] 42:12
14:1 disruptive [1] 84:20 easy [1] 81:20 exactions [11] 3:22 4:8,22, falls 32:24
[1]
Department [1] 1:23 disruptiveness [1] 84:22 effect [1] 51:21 25 13:21,22 35:22 51:10, far [3] 3:19 69:25 85:6
depends [2] 38:9 86:23 distance [1] 27:16 effectively [1] 46:23 13 61:7 63:10 features [3] 50:9,22 77:7
derives [1] 28:13 distinct [1] 17:9 effectuated [1] 53:10 exactly 17:20 32:10 37: federal 64:22 66:25 94:
[9]
[3]
described [1] 94:20 distinction [6] 22:7,18 53: effectuating [1] 53:8 1 48:19 69:7 78:12 81:13 13
describing [2] 63:25 66:18 3 76:19,25 87:8 either [3] 9:5 11:24 77:15 86:21 89:24 fee [91] 3:13,16,17,19 4:3 5:
descriptions [2] 61:19 62: distinguish [1] 76:22 EL [4] 1:6 3:5 49:7 69:8 examined [1] 29:9 7 9:24 10:24 15:6,11 16:3,
3 distinguished [2] 61:1,13 element [1] 85:3 example [9] 12:8 16:15 17: 3,18 17:1,2,7 18:10,15,17,
designed [1] 65:14 district [4] 29:19 91:2,4,23 else's [1] 88:25 1 20:9 33:2 36:7 44:15 48: 25 19:23 20:11 21:14 22:
despite [1] 65:8 divided [1] 39:11 emphasized [2] 49:11 77: 1 58:18 16,24 24:10,11,11,19,25
destroy [3] 36:9 51:2 92:6 doctrine [10] 4:9 10:16 12: 6 examples [4] 17:8 24:9 25: 25:21 27:3 28:1,10,12 30:
detailed [1] 37:15 13 26:7 50:6 53:23 54:25 emphasizing [2] 61:21 79: 5 91:15 9 32:23 33:16 34:25 36:13,
determination [9] 24:8 25: 80:20,25 82:21 2 exceeded [1] 43:5 15,20,22 37:3,6,6,14,16,19
14,16 36:22 55:2 66:12,13 doctrines [1] 47:20 enable [1] 63:24 except [1] 32:19 38:2,3,4 40:8 41:16 44:16,
86:23 97:18 doing [16] 10:8 19:20 29: enact [1] 72:20 exception 4:10,24 5:18 21 45:1,25 46:12 49:8,14
[5]
determinations [1] 85:8 20 31:17 32:9 39:18 40:6 enactment [2] 23:18 24:5 6:1 83:2 50:3,9,18 51:1 52:4 55:13,
determine [1] 18:19 45:5 48:12 50:23 59:10,10, enactments [9] 23:22,24, excessive [1] 37:19 18,23 56:12 60:15 61:23
develop [1] 76:15 13 84:19 91:7 98:7 24 25:11 55:22 56:10,15 exchange [3] 14:4 33:23 62:19 65:7,11,19 69:13,14
developer [1] 29:12 Dolan [43] 3:21 4:12 5:2,18 76:3,9 80:15 70:10 72:12 83:23 84:6,17
developers [5] 37:23,24 6:22 7:10 10:6,11,13 14: encourage [1] 81:25 exclude [1] 92:7 86:6 88:13 90:5,20 92:4,
49:8 69:17 93:16 19,22 25:14,24 26:1 34:1 end [2] 74:10 79:23 exclusively [2] 66:7 69:17 17 95:20 97:11
development [29] 28:4,9 40:4 44:11 52:21 53:24 55: engages [1] 91:21 Excuse [2] 19:2 28:21 feedback [1] 72:21
36:11,14,16 37:9 42:15 49: 21 56:9 58:18 60:24 70:17 engaging [1] 90:16 executive 34:2,3,7 58: fees
[6]
[51] 4:22 7:7 8:2,7 16:

Heritage Reporting Corporation

Sheet 3 critical - fees
 102
Official - Subject to Final Review
9 17:8,11 18:9 19:4 20:10, 4 68:8 90:15 greater [1] 87:16 3 52:13 59:15 60:16
12 27:22 28:16 32:15 33: fundamental [2] 6:3 33:5 grinding [1] 51:5
I individual [18] 17:12 19:14
14 35:23 36:10,16 40:7 47: fundamentally [5] 50:8 55: gross [2] 76:10,13 idea [5] 35:21 37:11 72:23 20:3 25:18 26:14 27:7,15
17 49:21,23,25 50:3,10,23 7 59:9,14 74:8 ground [1] 83:11 73:10 86:16 30:20,21,25 40:7 41:5 61:
51:18 55:10 59:16 60:17, funded [1] 31:2 group [4] 28:4,6 33:1 66: ident [1] 49:10 8,14 62:16 67:16 75:5,6
25 61:2,10,12 63:11,17 64: funds [2] 30:22,23 11 identifiable [4] 6:8,18 7:12, individualized [18] 24:8
8,11,18,19 65:13 66:10 67: guarantee [2] 36:20 97:4 15 25:9,13,16 27:20 28:11,11
2,5 71:13 78:10,11 84:3
G guess [8] 12:4 43:23 47:13, identified [2] 8:21 72:16 36:21 49:20 60:25 72:11,
89:5 93:17 96:4 gas [1] 32:6 18 70:1 76:10 78:4 84:21 identifies [1] 64:18 24 85:8 86:17,24 87:9 88:
feet [5] 24:12,13 28:7 33:3, gave [1] 77:11 guise [1] 3:25 identify [3] 51:20 77:11 83: 23 97:18
4 General [7] 1:22 8:3 26:23 10 individuals [2] 26:17 39:
ferrets [1] 31:4 32:5 75:7,9 91:1 H II [5] 1:18 2:3,13 3:7 95:13 18
few [7] 21:23,24 48:17 90:9 generalized [4] 62:15,23, halt [1] 51:5 Illinois [1] 37:13 industrial [1] 32:6
95:17 98:1,2 24 72:19 happen [2] 21:25 98:2 imagine [3] 42:8 43:13 51: informative [1] 88:12
fight [1] 57:23 generally [23] 4:4,13 5:1, happened [4] 17:20 48:19 20 infrastructure [8] 51:3 68:
fighting [5] 57:18 62:5,6, 17 6:1 16:16 17:11 19:10 59:8 76:13 impact [28] 15:13,13,15 19: 8,13 71:15 84:18 90:6 97:
13 63:5 26:8,15,21 27:12,21 43:16 happening [8] 14:12,18 15: 24 20:3 28:1,17 33:14 35: 22 98:5
figure [5] 24:15 40:20 69: 49:15 61:2,9,23 73:19,21, 5 17:4 44:10,13 45:24 98: 23 36:10 37:14,16 38:11 inhabit [1] 71:20
24 70:24 86:24 25 93:18 95:1 6 42:9 50:9,23 51:18 61:9, initially [1] 88:2
fill [1] 29:13 geographic [1] 49:11 happens [1] 27:4 23 63:11,16 64:8,10,18 65: inquiry [3] 25:20,24 27:20
filled [1] 94:8 GEORGE [2] 1:3 3:11 harder [1] 79:1 13 93:17 96:4 97:11 insist [1] 25:24
Finally [2] 4:19 97:21 gets [2] 78:7 84:21 Hauck [1] 84:10 impacts [26] 4:1,17 5:5 10: instance [3] 58:1 65:10 71:
finance [1] 3:13 getting [5] 37:10 46:1 59: head [1] 20:17 23 15:9,17 16:17,20,24 25: 16
financial [2] 8:8 17:8 11 77:25 91:11 hear [3] 3:3 58:11 84:23 23 28:8,16 30:25 31:6 33: instances [2] 52:14 59:3
find [1] 93:6 give [21] 3:11 9:6,6,18 11: heard [2] 54:6,13 4,8 35:2 37:8,20 38:3 39: instead [5] 29:13,21 42:8
finding [1] 50:16 16 13:12 14:15 15:2,3 18: hearing [2] 87:9 97:12 21 41:7 42:17 49:9 67:17 44:16,20
findings [1] 49:13 14 20:18 21:9 24:9 54:3 heartland [2] 20:15 45:9 97:20 instructions [1] 5:6
fine [1] 15:2 58:19 73:11 76:15 77:17 heightened [7] 3:23 4:14, impeding [1] 95:2 insulation [1] 52:9
finish [1] 68:19 91:14 92:5,14 23 5:6 28:2 80:3 84:12 implicate [4] 10:18 42:18, interest [12] 6:9,18,25 7:12,
first [12] 3:4 4:7 36:5 58:1,3 given [6] 21:25 28:15 37: held [6] 6:16 50:2 60:23 84: 21,23 15 8:24 9:7 12:23 14:1 47:
74:3 76:2,7 77:24 78:8 82: 19 70:4 94:22 98:3 9,16 92:19 implicated [2] 9:25 10:14 5 92:5 95:3
16 90:10 giving [2] 11:24 15:3 helpful [2] 75:24 87:1 implicating [1] 9:23 interested [2] 14:20 26:2
fit [1] 18:11 golf [1] 32:6 high [1] 32:4 important [2] 83:1 85:16 interesting [4] 55:17,18
fleshed [1] 19:21 GORSUCH [35] 8:1 33:21, highlights [3] 20:9,12 54: impose [8] 8:6,8 16:3 21: 95:18 96:5
floor [1] 77:9 22 34:17 35:3,6,9,13,16 36: 15 22 63:16 65:13 66:6 97:10 interfering [1] 30:7
flow [2] 64:1 71:15 2 55:14 56:6,19,23 57:2,17 highly [5] 17:21 21:14 32:1 imposed [12] 29:15 32:23 interrupt [1] 64:8
focus [2] 25:18 83:13 58:16 59:12,18,25 60:6 70: 72:19,19 35:1 50:13 54:8 61:7,10, introduction [1] 83:15
focused [2] 75:5 89:15 21 75:23,24 77:14,23 78: highway [2] 27:16 39:12 13,15 62:15 67:4 69:13 investigate [1] 70:22
follow [1] 73:10 14 79:6 80:15 88:10 89:1, hit [1] 82:12 imposes [3] 24:10 67:5 77: invite [1] 4:20
followed [1] 77:16 4,9,16,20 hoc [5] 5:1 61:7,14 86:17 10 invoke [2] 71:4 72:14
footage [1] 39:25 Gorsuch's [1] 73:10 96:3 imposing [3] 36:10 55:3 invoked [2] 16:12,14
footnote [1] 93:2 gosh [1] 21:7 hold [1] 37:19 94:6 involved [5] 7:11 29:18 77:
force [1] 21:9 got [1] 86:24 holder [1] 91:19 imposition [1] 62:24 2,21 78:24
Forcing [1] 50:25 gotten [1] 94:11 holding [2] 56:16 81:7 impositions [1] 8:14 involves [2] 6:24 23:12
forget [1] 27:21 government [65] 3:24 4:16, holds [1] 20:16 impossible [1] 3:14 involving [1] 12:25
formula [5] 37:3 67:14,14 20 5:3 8:6 9:8,18,24 10:3, home [4] 3:12 39:19 42:10 improper [2] 3:20 7:18 irrigation [1] 91:4
68:16 70:18 8 11:1,6,17 12:8,16 15:16 44:23 improved [1] 17:7 isn't [9] 6:12 8:18 56:13 63:
formula-based [1] 38:19 16:19,19 20:16,24 21:8,17, homes [7] 17:24 28:6 33:1 improvement [2] 11:17 31: 20 70:15,20,20 95:2,2
forward [2] 5:8 80:18 20 25:5,6 27:1 30:19 36: 38:6,10 39:11,24 1 isolate [2] 81:4,11
found [3] 36:4 90:2,7 21 38:2 43:4 44:2,5 45:13, honest [2] 40:5 48:7 improvements [11] 3:14 isolated [1] 80:16
four [1] 33:3 24 46:2,10,12,16,22,23 47: Honor [4] 23:8 25:15 37:11 11:8 49:15,16,25 50:18 63: issue [6] 6:9 23:14 30:8 50:
fours [1] 14:9 1,7,14,24 48:7 49:25 53:9 98:9 18 65:16 68:9 69:18 71:17 4 92:3 96:10
fraction [1] 19:15 55:3 57:23 63:16 66:10 84: horizontal [2] 85:4 87:15 inclined [1] 85:14 itself [10] 29:18 39:23 52:4
frame [1] 10:1 18 85:22 86:5 90:3,25 91: Houck [1] 91:3 include [1] 65:10 77:1,2 80:6 83:23 89:15
framework [2] 53:6 83:6 21 94:3,4,23 97:3,17,23 98: house [13] 24:12,13,14,20, including [4] 18:24 29:16 95:3 97:4
Francisco [1] 1:20 1,7 21 32:20,20,20 33:17 44: 93:18 97:24
French [1] 84:10 government's [4] 19:20 19 45:7 67:17,18 inconsistent [1] 36:25 J
friend [1] 92:25 45:12 48:13 96:8 household [1] 39:13 incorporates [1] 61:20 JACKSON [45] 6:2,5 9:20
friend's [2] 54:4,6 governments [6] 40:5 49: houses [2] 24:16 87:21 increase [1] 18:4 10:2,10 11:2,11,13 14:10,
front [1] 44:19 6,23 50:25 59:13 90:14 however [1] 22:8 increased [1] 49:17 14 15:19,23 16:1,7,20,23
functional [1] 16:14 granted [2] 23:16 42:11 hundred-plus [1] 84:9 increases [2] 63:20 64:14 17:18 43:22,23 44:8 45:3,
functionally [1] 52:12 granting [1] 42:9 hybrid [1] 20:5 Indeed [1] 94:8 15,19,21,23 46:6,8,19 47:9,
fund [11] 31:1 49:24,25 50: granular [2] 28:1,5 hypothetical [2] 58:9 68:1 indicated [1] 88:17 12 48:21 68:17,21 69:20
18 51:3 63:17 65:14,15 66: great [1] 40:11 indistinguishable [4] 50: 79:14 80:13,14 81:14,19

Heritage Reporting Corporation

Sheet 4 fees - JACKSON
 103
Official - Subject to Final Review
82:3,18 89:21,25 91:6 95: Kavanaugh [36] 35:19,20 22 72:20 73:20 74:1 76:13 6 90:21 94:8 17,20 46:5 77:9 95:21,23
7 38:5,13 39:1,4,8 40:10 60: 77:2,3,10 78:4 80:21 81:1 lots [1] 32:10 97:5 98:7
Jackson's [2] 11:22 93:25 19 63:6,14,25 64:5,7,21,24 87:11 92:20 95:2 loves [1] 97:21 Mm-hmm [1] 25:2
January [1] 1:11 65:12,22 66:2,16,24 67:7 legislative [42] 4:3,22 5:12, low [1] 30:17 moment [3] 19:15 82:23
judge [1] 41:22 68:11,14,19,22 69:19,22 17,25 23:18,22,23,24 24:5 lower [5] 4:2,19 18:24 29:8 87:6
judged [2] 19:18 41:1 79:9,10,23 80:8 93:13,14 25:10 26:23 28:1 29:15 33: 30:5 monetary [13] 4:25 6:21,21
judgment [3] 17:16,22 18: 94:17 95:4 25 34:6 35:22 37:14 38:4 Lucas [1] 11:25 7:22 9:11,13 30:10 43:1
10 Kavanaugh's [2] 40:18 41: 51:10,13,17 53:13 54:16, 46:4 47:4 61:6,12,13
judgments [2] 85:19,20 5 17 55:22 56:10,14 57:9 58:
M monetize [1] 4:21
jurisdiction [2] 18:16 33: keep [2] 40:5 92:17 24 59:2,4 61:10 63:9 76:3, made [7] 17:10 18:2 52:20, money [25] 6:10,17 7:5,6,
13 keeping [1] 48:7 9,17 83:2 85:19 86:18 96: 21 70:4 85:20 92:11 19 8:21,23 9:6 10:4 11:7,
jurisdictions [1] 37:12 kernel [1] 44:10 1 97:19 main [2] 56:23 82:12 16 12:6,9,16,17 14:4 15:3
jurisprudence [2] 46:21 key [4] 22:7 50:9 67:13 87: legislatively [3] 57:15 61: mandate [1] 97:19 21:19 31:7 42:15 46:17 64:
63:21 12 1,12 mandated [2] 57:15 61:1 11 66:3 86:4 92:9
Justice [271] 1:23 3:3,9 5: kind [26] 5:17 11:23 12:3 legislature [21] 17:15 20: mandatory [2] 78:9 79:3 morning [6] 3:4 54:13 82:
10,14,19 6:2,4,5,6,23 7:25 13:15,20 19:8 20:10 26:7, 24 26:16 31:14,19 50:13 Manhattan [1] 30:5 15 83:16,25 90:21
8:1,2,15,16 9:1,5,17,20 10: 11 28:10 30:18 33:15 37:1 51:21 52:8,11,11,14 61:25 many [6] 18:1 24:13 37:11, most [4] 60:13 70:7,20 89:
2,10 11:2,11,12,13,19,22 40:19 45:10 54:20 55:23 62:8,24 64:3 67:4 69:11 22 84:1 97:23 15
12:14,24 13:3,15,16,23 14: 66:21 68:8,12 70:15 72:15 80:6 85:18 88:20 94:24 Mar [1] 29:8 mount [1] 43:17
10,14 15:19,23 16:1,7,20, 74:21 81:24 96:21 97:11 legislature's [1] 50:16 Maryland [1] 91:23 move [1] 34:15
23 17:10,15,18 19:2,4 20:8, kinds [7] 8:14 16:10 20:22 legislatures [2] 61:25 65:8 matter [9] 1:13 23:7 43:16, Ms [64] 49:1,4 51:12 52:6
19,21 22:2,3,4,6,13,15 23: 28:7 51:17,23 55:8 legitimate [4] 31:4,14,17, 16 44:2 62:15 66:24 69:10 53:1 54:5 55:13 56:4,18,
2,3,4,9 24:24 25:2,9 26:1, knocked [1] 11:6 20 91:7 22 57:7 58:5 59:7,23 60:2,
10 27:9,25 28:19,22,25 29: knowledge [1] 84:16 less [3] 32:18 49:19 92:23 McGRATH [51] 1:20 2:6 49: 12 61:18 62:3,12 63:1,13,
3,5,6,7 30:14 31:10,11,11, knows [1] 25:15 level [7] 12:22 41:2 72:19 1,2,4 51:12 52:6 53:1 54:5 23 64:6,15,23 65:3,18,24
12 33:18,20,20,22 34:17, Koontz [25] 3:22 6:15 7:10, 79:19 85:17 87:14 91:1 55:13 56:4,18,22 57:7 58: 66:5,20 67:19 68:12 69:4
18 35:3,6,9,13,16,18,18,20 14,21,23 8:4,18,23 9:10 10: leverage [2] 20:23 21:9 5 59:7,23 60:2,12 61:18 71:2 72:7,14 73:9 74:5,18
36:1,1,2 38:5,13 39:1,4,8 6 12:20 14:8,9,18 15:1 17: leveraged [1] 73:25 62:3,12 63:1,13,23 64:6,15, 75:15,18 76:24 77:19 78:6,
40:10,15,15,17,18 41:5,11, 9 43:10 59:8,14 70:17 83: leveraging [2] 3:20 7:19 23 65:3,18,24 66:5,20 67: 19 79:20 81:13 82:2,6,10
20,23 42:4,22 43:7,19,21, 5 84:2 86:8 92:2 levied [1] 16:15 19 68:12 69:4 71:2 72:7, 86:3,15 87:2,24 88:10,24
21,23 44:8,14 45:3,5,15,19, levies [1] 16:10 14 73:9 74:5,18 75:15,18 89:1,8,17,25 91:12 92:21
21,23 46:6,8,19 47:9,12 48:
L lieu [8] 9:11 11:21 13:16,20, 76:24 77:19 78:6,19 79:20 93:24 94:19
5,21,23 49:1,4,10 51:8,14 land [42] 3:16 4:1 5:5 6:19, 24 15:3 92:3 93:4 81:13 82:2 much [12] 18:2,5 32:11,13
52:2,18 53:2,16,20,21 55: 24 7:1,2,4,17,20 8:25 9:14, light [1] 28:19 mean [28] 13:16 14:14 18:7 42:6 49:19 52:3 74:17,20
12,14 56:1,6,19,23 57:2,17 15,19 10:3,5 12:19 14:16, limit [2] 70:1 94:6 21:3 22:18 26:2,16,18 27: 76:16 77:16 89:6
58:16 59:11,18,25 60:6,19, 16,18,21 15:2,3,8 16:17 20: limiting [1] 50:22 5,10,13,19,20 30:6 38:8,11 multi-family [1] 32:4
21 61:18 62:2,5,13,21 63:4, 15 21:21,24 25:1 30:19 42: limits [7] 64:1,10,18,20,24 40:24 52:19 59:19 67:19 must [2] 36:21 69:25
6,14,25 64:5,7,21,24 65:12, 20 45:1,4,4,9,10 46:5 50: 65:10 93:21 70:24 74:23 77:25 81:7 86: muster [2] 28:2 97:5
22 66:2,16,23 67:7,15 68: 24 61:6,6 62:10 81:24 line [9] 29:12 40:20 69:11 22 87:4 89:23 91:15 myself [1] 57:5
11,14,17,19,21,22,25 69: landowner [2] 11:18 72:13 78:5,6,17,18,21 90:11 meaning [7] 13:21,22 18:
19,20,22 70:21 71:25 72:2, landowners [2] 47:16 87: lines [4] 39:10 40:25 41:8, 14 61:24 83:20 90:12,13 N
3,4,9,25 73:3,5,5,7,8,8,9, 14 21 means [2] 28:15 53:7 name [1] 87:5
10 74:6,19 75:16,19,20,22, language [1] 25:14 link [7] 6:17,20 7:15 91:12, mechanism [1] 74:2 narrow [1] 24:2
22,23,24 77:14,23 78:14 large [5] 27:1,4 39:12 84: 13,25 92:2 medium [1] 39:11 narrowly [2] 10:2 86:12
79:6,8,8,10,11,14,22 80:8, 17 86:2 linked [1] 12:21 meets [1] 88:13 nature [10] 25:22 35:14 52:
9,9,11,12,12,14,15 81:14, larger-sized [1] 37:24 literally [1] 75:8 members [1] 28:5 4,24 69:13 78:9 79:3 81:9
19 82:3,4,11,18 84:6 85:24 last [5] 33:23 37:10 47:13 litigation [1] 68:23 mentioned [1] 94:15 92:3 93:4
86:11,19 87:18 88:1,10 89: 84:21 95:12 little [4] 32:16,18 89:22 96: met [1] 97:8 necessarily [4] 36:17 70:9
1,4,8,16,20,21,25 90:23 91: late [1] 95:11 14 mid [1] 37:24 84:5 94:6
6 92:18,21 93:8,10,11,12, Laughter [2] 23:6 95:10 local [5] 16:12 49:6 50:25 might [12] 14:2 34:9,19 42: necessary [3] 49:16 51:3
13,14,25 94:15,17 95:4,5,5, law [17] 13:22 24:10 34:7 52:23 85:22 23 47:23 51:21 56:19 59: 80:4
7,11,16 98:10 48:8 50:14 60:1,2,4,9 65: located [1] 38:9 21,22 75:3,10 88:12 need [20] 8:10 15:10 21:6,
justification [1] 28:12 20 66:25,25 69:10 81:21 logically [1] 82:19 mind [2] 19:5 79:25 11,25 25:6,7 30:21 38:2
justifies [1] 4:9 90:5 94:8,9 long [6] 7:21 20:20 28:17 minimum [2] 64:16 81:5 45:12 46:24 50:17 68:7 69:
justify [2] 50:25 67:4 laws [7] 8:7 27:12 64:20,21 31:24 79:18 90:13 ministerially [1] 76:17 11,12 71:16 72:24 85:20
69:6 84:3 86:7 look [7] 5:8 20:5 27:14 41: minority [1] 21:24 90:14 98:3
K lax [1] 20:13 3 75:3 83:17 86:6 Mira [1] 29:8 needed [3] 3:24 29:11 71:
KAGAN [30] 17:10,15 20: least [6] 10:19 34:22 38:15 looking [4] 19:13 53:11,14 missed [1] 59:22 17
19,21 23:2,4 26:1 27:9,25 80:18 84:15 96:3 67:13 mitigate [10] 4:1 5:4 15:17 needs [5] 37:2,5 65:14 66:
28:19,22,25 31:11,12 33: led [1] 3:21 looks [7] 27:20 59:8 75:4, 16:17,20,23 21:20 25:1 31: 3 80:4
18 34:18 36:1 48:5 49:10 legal [3] 7:7 70:2,13 12 77:3 80:5 81:21 6 40:22 Neither [1] 49:18
67:15 68:25 73:8,9 74:6, legislation [27] 26:9 27:4 loose [1] 61:6 mitigating [1] 10:5 never [9] 8:22 25:20 62:23
19 75:16,19,20 79:11 93: 34:1,2,5 51:25 52:5 53:12, Los [1] 1:18 mitigation [16] 3:17 10:9 74:13,14 84:16 90:2,7 91:
12 25 54:2,21 55:9 60:24 61: lot [6] 32:8 34:18 82:13 86: 15:13,15,18 18:23 31:4,15, 16

Heritage Reporting Corporation

Sheet 5 JACKSON - never
 104
Official - Subject to Final Review
New [15] 19:1130:2,3 33:9, often [1] 94:25 22 86:9,10 paying [2] 19:13 98:4 political [3] 31:8 37:17 87:
12 36:10 49:9,17 50:15,16 Okay [19] 12:14 13:23 15:1 over [9] 3:15 9:8 20:16 33:payment [2] 46:4 86:4 17
51:4 66:7 67:1 69:16 71: 22:2 24:14 28:24 34:17 35: 15 60:23,23 63:8 68:23 92: pays [5] 24:18,20 28:9 49: portion [1] 43:14
20 6 38:6 40:13,14 41:20 42: 5 15 85:5 pose [1] 65:20
next [1] 68:15 4 46:8 63:14 67:7 74:6 75: overall [1] 17:16 people [15] 17:17,23,23 18: posited [1] 45:6
nexus [8] 25:7 35:25 37:7 20 88:16 overburden [1] 33:13 1,2,11 21:9 22:19 24:15 position [14] 51:15,15,24
39:17 66:19 67:11 79:17 once [2] 34:15 37:6 overreach [1] 47:15 32:16,17 47:16 84:17 86:2, 52:7,10 54:7 55:11 57:12
97:7 one [37] 12:25 18:22,23 19: overstepped [2] 44:2 69: 13 60:13 69:15 70:22 71:4 80:
night [1] 95:12 12 20:6 23:10 24:6,18 29: 25 people's [1] 17:12 3 96:9
nightmare [1] 40:19 16 34:9 37:12,25 40:17 43: owes [1] 46:18 perceive [1] 25:4 possession [1] 14:20
no-build [2] 13:1 14:2 9 44:13 47:12,12 48:6 69: own [3] 8:20 18:18,19 percent [1] 62:10 possible [2] 51:19 71:9
nobody [2] 17:3 91:20 1 74:9,11,16 76:1,7,8,12, owner [7] 21:17 22:10 46:3 percentage [1] 91:22 pot [1] 7:6
Nollan [31] 3:21 4:11 5:2, 25 77:7 79:1,10 81:9 85: 47:8 91:19 96:14,17 performed [2] 55:4 80:5 potential [2] 40:22 78:15
18 6:22 7:10 10:6,11,13,19 16 88:6,24 92:14 93:14 98: owner's [3] 9:14 20:17 27: perhaps [1] 11:25 power [11] 4:1 5:4 15:16
14:19,22 28:2 40:4 44:11 1 7 permission [1] 45:13 16:12 21:9 31:9,18 43:4,5,
52:20 53:24 55:21 56:9 60: one's [1] 19:13 owners [12] 8:9 17:25 30: permit [33] 3:12,18,22 4:21, 5,6
24 70:17 75:4,8 83:2 86: one-off [1] 85:7 20,21 31:1 49:23 66:11 75: 25 7:19 9:16,16,22 15:10 practical [2] 68:3 69:23
10 95:25 96:4,20 97:6,14 one-offs [1] 87:10 6 91:5 93:16 96:22 98:2 20:16,17 22:5 25:12 42:9 precedent [2] 49:18,22
98:5 onerous [1] 94:12 ownership [1] 12:18 45:11 46:1 53:8,10,22 54: precedents [2] 4:8 15:14
Nollan/Dolan [52] 4:2,18 5: ones [1] 85:2 8,9,18 58:13 61:14,24 62:8 precise [1] 23:15
11 26:19,20 27:13,19 29: only [18] 4:15 10:13 19:14
P 80:19,23 81:8,17 97:16 98: precluded [1] 13:13
10,23 35:23,24 36:15,17, 21:13 22:19 45:5 49:15 58: PAGE [8] 2:2 36:13 54:10 3 predetermined [4] 49:9
23 42:18,21 50:7,12,22 51: 22 60:25 62:9 75:25 76:1 56:25 61:4 77:6 86:8 92: permit's [1] 42:11 68:6 78:12,15
11,14,19 52:1,9,15,17 54:9, 86:12 87:21 90:25 94:11 11 permits [2] 8:3 30:22 predicate [2] 12:12 50:5
19,22 55:11 57:10 58:14 95:24 97:8 pages [3] 29:16 83:17 92: permitting [20] 7:17 10:4 predictability [1] 39:9
59:8,13 61:3,5,16 62:17,18, open [1] 77:12 25 12:11 20:25 21:2,6,7 24:7 predictable [1] 38:20
19 63:10,12 64:9 67:11,12 opening [1] 13:10 paid [4] 3:12,18 42:17 84: 26:14 29:9 30:19 42:7,20 premise [4] 57:4 58:14,16
74:24 75:3,11 76:2 83:10 operate [1] 85:17 17 45:2,10,10 55:5 71:22 73: 95:23
85:12 92:20 operates [3] 7:22 72:18,18 paragraph [1] 36:25 25 77:11 premised [1] 36:15
Nollan/Dolan's [1] 49:20 operating [3] 9:4,14,15 paraphrasing [1] 36:7 person [2] 24:19 44:17 prescribed [1] 61:12
non-discretionary [2] 78: opinion [9] 57:9 58:7 71:3 parcel [1] 25:19 personal [1] 8:20 presence [1] 61:22
9 79:2 81:8 86:8 92:11,23,25 93: parcel-based [2] 26:18,20 personal-specific [1] 84: present [1] 53:13
non-residential [1] 33:8 5 parcel-by-parcel [2] 51:1 25 presentation [1] 8:12
nor [1] 49:18 opportunity [2] 37:18 72: 67:6 personally [1] 19:23 presented [14] 5:16,23 23:
normal [2] 46:21 84:13 21 parcel-specific [3] 36:9 perspective [2] 44:24 70:8 14 53:18,22 54:15,24 80:
noted [1] 90:23 opposed [3] 7:11 52:4 62: 79:19 96:24 perversion [1] 4:11 17,17 81:5,12,16 82:17,20
nothing [5] 4:7 5:22 10:25 16 parcels [2] 41:6 75:5 Petitioner [12] 1:4,19 2:4, preserve [1] 81:6
93:20 98:8 opposite [1] 4:14 part [14] 7:1 12:3 46:13,14, 14 3:8 50:21 53:19 78:13 preset [2] 4:4,22
notwithstanding [1] 66: oral [7] 1:14 2:2,5,8 3:7 49: 16 62:14 63:18 64:13 65: 80:18 83:14 84:23 95:14 pretty [4] 11:20 18:6 76:16
13 2 82:7 16 78:7 80:2,2 81:14 96: phrase [1] 93:22 77:16
nuanced [1] 93:6 order [10] 4:23 10:18 14:23 17 phraseology [1] 87:20 prevail [2] 57:11 84:4
nuances [1] 61:20 15:9 21:7 37:3 45:6,17 60: particular [18] 6:15,25 7:6, phrasing [1] 94:18 prevent [2] 69:14,16
number [6] 24:16 27:17 74: 9 81:11 23 12:10,21 21:18 22:10, physical [4] 83:20 89:10 primarily [2] 78:21 79:4
11 77:10 86:2,13 ordinance [2] 52:23 77:7 10 24:11 41:14,15 70:18 90:17 92:8 primary [2] 5:25 53:3
numbers [1] 84:17 origins [1] 52:5 72:13 83:18 91:2,5 97:20 pick [1] 35:20 principle [3] 48:16 49:18
other [28] 6:7 7:4 16:10 17: particularly [1] 62:4 picture [2] 42:12 67:22 67:23
O 7 18:11 20:7 22:11 33:9 parties [3] 74:7 83:7,8 piece [9] 7:23 8:21 9:18 12: principles [2] 70:13 72:15
object [1] 16:14
34:4 42:5 47:23 48:8 50: parties' [1] 60:10 21 21:18 31:23,23,23 33: private [3] 44:4 90:17 95:3
obligations [1] 17:8 10 63:18 64:12,13,17 65: parts [1] 92:24 25 probably [2] 74:8 88:1
observed [1] 8:19 16 87:4 90:5 91:3 92:15 pass [6] 27:11 28:2 63:20 pipe [1] 29:10 problem [10] 30:18 32:22
obtain [1] 50:19 93:15,18 94:7 95:17,20 96: 73:17 74:1 97:5 places [2] 18:8 92:24 33:5 48:4 68:3 69:23 70:2
obvious [1] 59:2 2 passed [1] 73:19 Planning [2] 36:6 50:24 87:25 88:7 96:13
obviously [3] 63:17 86:20 others [3] 33:24 34:18 63:5 passes [1] 23:4 play [5] 74:14,15,16,23 75: problems [3] 40:2 56:23
91:16 otherwise [2] 5:1 80:24 past [2] 34:15 74:24 2 85:1
occasional [1] 37:25 out [20] 4:17 11:22 19:21 PAUL [5] 1:18 2:3,13 3:7 please [3] 3:10 49:5 82:11 procedural [4] 48:3 72:6,7,
occurring [1] 45:1 24:15 31:4 40:20 41:5 42: 95:13 point [11] 5:25 22:24 30:6 17
occurs [2] 42:19 70:16 12 48:9 56:2,20 62:16 64: pay [35] 10:24 11:7 13:7,11, 39:22 48:6 53:4 66:8 77:5 procedure [1] 72:9
odd [1] 58:6 11 69:24 70:24 81:20 84:7 14 14:4 15:11 18:5,13 19: 84:14,22 88:11 procedures [3] 16:13 18:
odds [2] 74:17,20 86:25 87:21 88:7 6,10,10 20:20 30:13 32:16, pointed [3] 56:2 84:7 92: 18 72:10
office [2] 32:5 33:9 outcome [1] 97:6 18 44:5,22 46:11,22 49:14 25 proceeding [1] 97:12
official [2] 20:24 88:23 outset [1] 92:16 53:9 62:9 64:12 69:17 71: pointing [2] 11:22 41:5 process [29] 7:17 12:11 20:
officials [1] 77:11 outside [16] 12:10 21:2,6 13,16 84:18 90:6 91:22 92: points [2] 82:12 95:17 25 21:2,6,8 24:7 48:1,3 53:
offset [1] 46:24 42:19 44:19 45:1,3,4 51: 4,9 93:17 94:4 97:24 police [4] 3:25 5:4 15:16 10 65:4,21 67:24 72:5,6,8,
oft-repeated [1] 90:11 19 52:1 53:10 55:4,11 71: payer [1] 17:3 43:5 15,17,17 73:25 79:15 87:7,

Heritage Reporting Corporation

Sheet 6 New - process
 105
Official - Subject to Final Review
17 88:4 94:14,18 96:10,15 pure [1] 20:6 19 31:23 36:9 43:3,24,24 24 3 40:9 41:4,17,19 67:15
97:15 purported [1] 53:5 47:22 55:17,18 75:12,13, requirements [1] 50:14 routinely [1] 68:6
produce [1] 28:7 purpose [1] 10:5 14 82:25 87:9,12 90:22 91: requires [8] 4:13 25:15,18 rule [14] 3:21 4:24 51:16,24
product [2] 16:22 22:25 purposely [1] 33:7 18 92:2 94:1 52:9 55:2 72:19 91:22 96: 56:24 57:12,14 58:7 61:20
program [3] 42:1,1 48:13 purposes [2] 46:5 60:3 reason [11] 14:21 33:10 47: 23 63:2,7 77:16 84:23 93:6
programmatic [6] 49:14, pursuant [2] 16:13 34:4 24 52:16 54:4 65:5 71:4 reserving [1] 29:25 rules [2] 31:20 89:18
21 51:1,22 62:1 80:5 pursue [1] 34:3 81:15 85:14 90:13 95:24 residential [5] 17:24 32:4, run [1] 36:17
progressive [1] 43:11 pursuing [1] 34:2 reasonable [9] 9:9 65:10, 4 33:9,15
prohibits [1] 13:4 put [9] 7:3 12:10,17 13:9 13,25 66:1,3,6 85:19,19 residents [2] 27:17 71:20
S
project [13] 11:17 19:8,14, 26:4 32:14 71:8 80:18 90: reasonableness [7] 20:2 resolve [1] 60:14 sake [1] 23:19
19 28:18 36:23 37:20 39: 19 26:22 66:12,17 67:24 79: resolving [1] 60:10 same [22] 3:20 19:13 24:6,
19 40:7 41:14,15,17 97:20 putting [3] 69:5 71:8 77:20 21 94:21 respect [3] 47:20 86:1 92: 19,20 25:11,25 26:3,11 27:
project's [3] 4:17 28:16 31: puzzled [1] 60:22 reasonably [2] 18:21 65:9 22 5 28:7 30:17 33:4 42:16
6 reasons [5] 31:8 37:17 82: respects [1] 77:4 52:19,21 53:18 54:4 67:12
project-specific [3] 96:25
Q 22 83:24 90:9 respond [1] 38:24 72:15 79:14 85:6
97:2,9 QP [6] 34:15 57:21 58:15, rebuild [1] 22:1 Respondent [8] 1:7,21,25 San [1] 1:20
projects [1] 31:1 17 60:11 76:1 REBUTTAL [3] 2:12 95:9, 2:7,11 5:20 49:3 82:9 satisfies [1] 36:23
properties [4] 25:22 64:4 qualifies [2] 70:14,23 13 response [1] 48:4 satisfy [2] 64:19 69:3
66:14 69:12 question [69] 5:15,23 8:11 receive [1] 65:8 responsive [1] 82:13 saying [19] 10:21 17:19 19:
property [86] 6:8,10,18,25 9:21 19:25 20:11 21:12 23: recharacterize [1] 76:12 responsiveness [1] 87:16 14 26:11 27:21 29:25 37:2
7:12,15,16,23 8:6,9,20,21 16 24:3 25:19 26:3 30:11 recognized [3] 84:1 90:14 rest [1] 73:2 41:3 46:20 62:8,14,21,22
9:7,12,14,25 11:25 12:1,21 31:15 34:8,15 38:11,14 39: 92:7 result [1] 71:13 67:16 70:25 87:19 88:16,
13:4 14:1 15:6 16:7 20:4, 16 40:12,17,18 42:5 43:3, recognizing [1] 56:8 retail [1] 33:8 24 97:25
16 21:18 22:1 23:13 24:1, 25 47:13 53:7,18,21 54:14, record [1] 69:9 reticulated [10] 17:21 32:1 says [9] 20:17 42:13 44:18
2,6 25:19 27:2,7,15 30:20, 16,20,23 55:1,17,18 56:1,3 red [1] 28:19 34:12 35:4 40:25 49:11 68: 46:9 54:24 57:9 74:15 75:
21,25 31:5 43:7,9 44:4 45: 57:8 62:18 68:3,15 70:3 refer [1] 54:23 15,25 69:1,2 13 81:22
12,17 46:4 47:5,8 49:23 71:11,23 74:16,19 76:2,11, referring [2] 12:7,11 retract [1] 13:24 scenario [5] 44:11 46:11
50:10,20 55:9 59:16 60:16 21 78:8 79:10,11,24 80:16, refers [1] 93:3 return [2] 45:14 73:1 47:21,22 81:24
66:11 70:16 71:5 73:23 75: 17,25 81:4,11,16 82:16,17, reflect [1] 32:11 reveals [1] 33:16 scenarios [3] 51:20,23 80:
6 83:20,21 88:21,22,24 89: 19,20,25 86:15 88:4,17,21 reflects [1] 89:9 revenues [1] 16:16 1
11 90:18 91:5,8,10,13,13, 93:14 refund [2] 46:18,25 reverse [1] 5:5 schedule [12] 4:4 28:1 36:
15,19,19,20,24 92:1,2,5,8, questions [10] 5:9 26:5 28: refused [2] 3:11 4:2 review [14] 3:23 4:14,18,23 15 37:3,7 38:4 40:9 44:16,
16 93:16 95:3 96:14,17,22 23 39:17 51:7 65:21,23 66: regarding [2] 83:19 85:20 5:7 18:19 20:13 28:3 30: 22 49:10 78:12,15
98:2 23 77:22 94:1 regulation [3] 20:15 52:24 12 50:12 58:2 79:15,18 80: schedules [2] 37:14,16
property-based [1] 50:11 quick [1] 91:15 90:5 4 scheme [13] 17:21 21:15
proportional [6] 34:8,20 quintessential [1] 89:12 regulations [3] 8:8 84:4 reviewing [3] 20:1,1,3 26:16,24 32:1 35:4 53:14
35:1 40:9 41:4 67:15 quite [3] 20:19,22 84:7 86:7 riding [1] 44:21 54:18 59:15 62:15 75:7,9
proportionality [21] 19:17 quoting [1] 8:5 reimburse [1] 16:19 rise [1] 12:22 77:13
schemes [1] 29:15
20:2 25:8 26:22 28:14,15 R reimbursement [1] 22:25 risk [1] 4:15
schools [4] 65:16 66:4 68:
34:9,19 36:1 37:4,8 39:16,
radical [5] 56:2 73:11,12, reiterated [1] 49:22 road [13] 3:13 11:8,8 22:20
17 41:12,13,14 66:18 67: rejected [1] 72:23 44:19 49:15 50:18 59:20 9 97:22
14,16 scrutiny [6] 3:23 5:11 51:
10 79:17,22 97:7
raise [5] 16:16 30:22,23 31: related [2] 9:24 40:18 60:10 65:14 67:18 76:20
proportionate [4] 28:17 relates [2] 76:25 79:4 85:12 11,14 64:9 69:3
7 77:22 sea [1] 51:6
38:3 41:18,19
raised [2] 31:8 79:12 relatively [1] 86:13 roads [12] 17:5,6 18:3,4,12
proposed [2] 6:20 37:8 relevant [1] 89:4 19:7,9 32:14 39:14 44:21 Second [6] 4:11 74:19 76:
range [4] 28:12,16 36:15 8 78:2,7 83:12
proposing [2] 13:17 38:15 86:20
relief [2] 54:11,12 68:10 97:21
protect [1] 27:6 rely [1] 39:17 ROBERTS [35] 3:3 6:4,6, see [10] 8:16 19:23 20:4 22:
ransom [1] 13:7 17 37:22 40:2 59:20 65:24
protectable [2] 8:24 12:22 ratcheting [1] 92:17 relying [1] 7:14 23 22:3,6,13,15 29:3 31:11
Protection [6] 48:10 88:5 remains [1] 83:9 33:20 35:18 40:15 43:21 67:14 73:14
rather [4] 58:2,3 78:17 79: seek [1] 47:10
94:16 96:11,14,18
21
remand [4] 5:6 34:23,24 48:23 49:1 53:16,21 55:12
protections [2] 67:25 96: 35:14 71:25 73:5,8 75:22 79:8 seeking [1] 9:16
rational [5] 41:2 65:1 88: seem [2] 29:14 89:23
21
14 96:10,19
remedy [1] 47:7 80:9,12 82:4 85:24 86:11,
protest [1] 3:18 remembering [1] 93:1 19 87:18 93:8 95:5,11 98: seems [10] 15:5 18:6 21:14
rationale [2] 12:20 92:13 32:20 40:19 41:2 44:9 52:
prove [2] 70:9,9 rationality [1] 79:21 render [1] 6:21 10
provide [5] 46:25 65:4 72: repeated [1] 36:18 robust [1] 96:21 2 74:7 80:22
reach [2] 8:10 82:25 seen [1] 21:20
21 96:13,21
read [9] 10:19 32:2 37:11 reply [3] 36:4,12 97:2 ROSS [18] 1:22 2:9 82:6,7,
provides [1] 96:20 request [1] 9:12 10 86:3,15 87:2,24 88:10 select [5] 21:23,24 48:16
55:19 56:5 63:5 75:25 80: 98:1,3
provision [3] 17:2 86:2 87: 17 83:8
requesting [1] 12:9 89:1,8,17,25 91:12 92:21
19 require [5] 29:23 64:20 69: 93:24 94:19 sell [2] 91:20,24
reading [1] 9:10 sense [10] 11:5,21,25 13:8,
provisions [1] 94:14 real [9] 9:12,24 23:13 47:4 6 96:16,18 Ross's [1] 88:24
public [20] 3:13 11:17 12: required [3] 21:17 77:12 rough [13] 19:16 25:7 28: 13,25 40:1 62:22 86:21 89:
50:20 83:20 89:11 92:5,8 18
18 19:7,9 21:19,23 31:1,2 97:6 13,14 35:25 37:3,7 41:14
realized [1] 39:23 sentence [2] 36:19 37:10
44:4 48:17,18 49:24 66:15
really [22] 8:11 19:21 29:11, requirement [8] 10:7,7 15: 66:18 67:10 79:17,22 97:7
69:18 90:6,6,7 97:22 98:5 14,15 26:12 29:11 95:21, roughly [8] 28:17 35:1 38: serious [2] 65:21,22

Heritage Reporting Corporation

Sheet 7 process - serious
 106
Official - Subject to Final Review
serve [1] 51:4 23 70:24 77:9 80:3 83:2, sued [1] 30:3 14 93:23 94:9,21 91:14 98:1
service [3] 16:22 17:3 22: 19 84:11 87:10 88:3 89:10 sufficient [3] 6:20 7:24 28: Texas [1] 37:12 tying [1] 42:8
25 90:10,16 91:1,3,10 92:7 11 text [1] 89:14 type [5] 13:3 49:12 51:25
services [4] 17:17 50:1 86: 93:2 94:9,11 sufficiently [2] 28:5,10 themselves [1] 90:15 52:22 62:18
5 90:7 sorts [2] 7:7 18:9 suggest [4] 22:20 31:25 there's [24] 5:16,22 7:9,18 typically [2] 62:1 66:9
set [5] 14:23 24:11 32:10 SOTOMAYOR [21] 7:25 8: 38:16 73:12 8:4 20:11 26:6 32:15 43:
44:18 78:11 2,15,16 9:1,5,17 19:2,4 20: suggested [2] 31:22 85:11 12 56:2,13 58:15 68:23 74:
U
setting [1] 64:18 8 29:6,7 30:14 31:10 62:2, suggesting [3] 16:4 79:24 1 76:8 78:22,24 79:12,13, ubiquitous [1] 54:21
several [1] 85:1 5,13 63:4 73:6,7 93:11 83:14 24 85:3,13 88:21 93:1 uncompensate [1] 47:5
sewer [3] 68:10 71:16,18 sound [1] 27:11 suggests [1] 38:16 therefore [2] 4:13 77:21 uncompensated [3] 27:8
shaken [1] 47:16 sounds [3] 41:24 44:25 48: sum [2] 11:7 46:17 they've [2] 5:24 18:1 47:2,6
shared [1] 21:22 2 summary [1] 34:14 thinking [1] 90:22 unconstitutional [29] 4:9

shares [1] 50:9 space [1] 77:12 super [1] 75:24 thinks [2] 23:10 81:22 10:15,18,21 11:3,5,10 12:
SHEETZ [8] 1:3 3:5,12 17: special [15] 42:13 45:2 49: supporting [3] 1:24 2:11 third [1] 84:22 12 15:20 16:2 26:7,12 30:
5 32:23 35:1 48:20 70:5 24 55:9 59:16 60:16 64:2 82:9 THOMAS [11] 5:10,14,19 2 50:6 53:6,23 54:24 58:
Sheetz's [3] 11:6 33:17 91: 65:6 66:8 71:5 83:5 84:8 supports [2] 49:19 69:9 29:5 51:8,14 52:2,18 53:2, 21 73:18,21,22 74:13,22
8 90:21,24 93:2 suppose [2] 23:9,10 20 72:2 75:2 80:20,24 81:10 82:21
shift [1] 33:14 specific [5] 34:10 59:1 66: supposed [1] 76:18 thou [2] 76:14,15 83:6
shifted [1] 33:7 11 76:10 78:4 SUPREME [3] 1:1,14 61: Though [6] 3:16 23:8 27: under [22] 3:18 5:4 7:10 12:
shouldn't [3] 17:19 27:5 specifically [4] 18:17 33:7 11 11 60:8 76:1 79:14 19,23 14:25 19:16 25:24
47:24 51:9 66:14 survive [1] 36:14 thousand [1] 42:16 26:1 28:2 29:10 43:6 57:
show [8] 10:8 21:1 25:6,7 spectrum [1] 86:25 swallow [1] 4:24 three [4] 69:5 82:12 87:21 11 60:1,2,8 64:9 65:21 69:
37:3,6 38:2 84:5 split [1] 76:4 swath [2] 26:17 87:13 88:6 4,4 77:12 88:4
showing [1] 96:16 square [6] 24:12,13 28:7 sweeps [1] 82:17 threshold [4] 70:3 80:23 underlying [1] 8:25
shown [1] 37:2 33:3,4 39:25 sympathetic [1] 47:14 86:22 87:1 understand [15] 8:18 10:
side [8] 20:6 65:17 71:9 77: squint [1] 93:5 system [1] 71:18 throughout [1] 83:16 10,20 12:4 14:15 15:4 17:
20 78:17,18,21 93:15 standard [12] 18:19 25:11, systems [1] 68:10 tie [2] 9:10,13 19 33:23 35:9 39:4 43:25
sides [3] 8:17 56:7 93:18 17,25 27:6 28:14 30:12,13 tied [4] 8:24 9:7 42:6 47:4 44:12 77:23 88:11 96:15
significant [6] 22:17 77:8 39:3 57:11 85:10 86:18
T time-consuming [1] 38: understands [1] 67:21
78:24 79:25 94:23,24 standards [1] 94:10 table [1] 92:4 21 understood [5] 57:5,20,21
similar [9] 8:7 50:10,15 58: start [2] 29:25 63:8 tackle [1] 58:3 tiny [5] 24:12,13,14,16,20 77:18 91:8
6 84:3,7 86:7 87:2 90:5 started [1] 62:21 tagging [1] 69:16 today [7] 36:18 53:5 54:5 undifferentiatedly [1] 27:
similarity [1] 79:4 starting [1] 70:22 tailored [3] 4:16 33:17 97: 56:3,17 57:25 58:11 2
similarly [1] 91:17 state [14] 8:19 9:7 16:12 29: 19 together [2] 33:1 38:7 unfairly [1] 48:9
simply [7] 4:3 5:16 7:11 53: 18 30:2 50:14 64:20,21 65: Takings [34] 4:8 6:7,11,14
toll [11] 15:7 16:3,4 19:10, unilaterally [1] 12:9
24 55:21 57:9 80:20 20 66:25 69:6 94:7,9 97:1 9:23,25 10:13 12:23 30:11 11 20:10 30:1,4,8 44:14,18 unique [1] 7:16
Since [3] 42:19 70:15 94: statement [1] 62:7 34:4 42:23 43:2,18 44:3 tolls [3] 22:18,19,21 UNITED [6] 1:1,15,24 2:10
12 statements [1] 60:22 45:17 46:9,21 48:11,14,15 took [2] 57:5 76:4 82:8 96:8
single [1] 17:24 STATES [9] 1:1,15,24 2:10 50:4 51:5 71:7 84:11,12 tools [1] 97:23 unless [2] 3:12 6:9
single-family [9] 28:6 32:3, 36:5 64:17 82:8 85:10 96: 85:25 86:9,14 87:25,25 90: total [3] 14:3 23:17 36:8 unlike [1] 46:20
25 33:1 38:6,10 39:10,19, 8 11 91:11 93:19,25 totally [2] 17:9 30:10 unpopular [1] 30:24
24 states' [1] 64:17 talked [2] 84:2 90:20 touches [1] 66:21 unquestionably [3] 64:19
single-use [1] 44:17 station [1] 32:6 tax [36] 15:6 16:7,15 22:16 touching [1] 66:23 65:19 71:21
singled [1] 48:9 statistics [1] 29:17 43:5,11,18 46:20 52:22 55: trade [1] 11:23 unrelated [2] 12:6 69:18
singling [1] 88:7 status [1] 11:18 16,23 56:12 59:18,19 60:1, traffic [8] 10:23 33:8 38:11 unusual [1] 51:23
singly [1] 32:3 still [2] 21:1 83:4 3,4,8,9 63:20 64:14 70:9, 39:21 41:7 42:8,17 49:17 up [11] 11:24 13:12 14:16,
situation [6] 10:12 14:24 stop [1] 30:6 23,25 71:4,5 74:13 76:7 transfer [1] 91:18 24 21:9 32:10 35:20 44:18
43:13 44:13 45:24 90:3 straightforward [3] 60:13 78:1 84:6 86:6 88:13 90:4 transparent [1] 38:19 73:10 92:17 95:11
situations [3] 7:8 24:23 44: 70:7,21 91:15,18 95:20 treat [1] 95:19 upfront [1] 44:21
15 strip [1] 58:19 taxation [1] 85:23 treated [1] 89:10 upholding [1] 4:19
size [2] 27:14 39:20 strong [1] 43:18 Taxes [18] 7:25 8:7 16:9 17: trigger [2] 80:24 81:3 user [41] 8:2,7 15:6 16:3,9,
sizes [1] 38:10 study [1] 24:15 8 30:13,23 43:7,9,15 50:10 triggers [1] 81:9 18 17:1,2,8,11 18:10,15,17,
small [2] 39:11 86:13 styling [1] 13:18 55:9 59:16 60:16 84:3 89: trip [2] 19:14 32:4 25 19:4,23 20:10,11,12 21:
solely [1] 12:5 subject [23] 3:23 5:2 6:22 5 90:11 91:1 97:24 true [10] 4:14 7:13 17:14 62: 14 22:24 30:9 45:1 49:25
Solicitor [1] 1:22 10:6 20:13 27:5 35:22,24 taxing [1] 31:9 25 70:1 73:20,22 89:7 94: 50:10 55:10,18 56:12 59:
somebody [1] 24:20 50:13 51:10,13 54:9,22 58: teach [1] 15:14 25 97:1 16 60:17 65:6,11 70:10 84:
someday [1] 20:6 13,20 61:3,16 62:19 64:9 terminologies [1] 18:8 try [4] 9:20 36:8 58:3 76:20 3,6 86:6 88:13 89:5 90:5,
somewhere [2] 53:13 54: 66:12 84:11,12 96:4 terms [6] 14:8,12 18:21 47: trying [7] 10:20 21:8 36:25 20 95:20
17 submit [1] 3:17 19 48:12 87:20 40:21,22 86:16,21 users [2] 16:24 30:13
soon [1] 30:4 submitted [3] 95:9 98:11, terrible [1] 13:10 Tuesday [1] 1:11 uses [2] 17:12 21:21
sorry [7] 6:5 28:20 64:8 68: 13 territory [1] 91:11 turns [2] 81:20 87:21 using [5] 19:5,7,15 31:17
21 69:19,21 95:9 substantial [1] 3:13 test [17] 23:21 24:4 26:13 two [17] 24:9,22 25:4 36:24 49:9
29:23 31:3 36:1 42:21 49:
sort [26] 20:23 25:15 29:23 substantive [4] 25:17 72:5
20 61:3,5,17 69:5 70:3 88:
56:23 74:6,9,10 75:17 76: V
52:8 53:12 54:17 67:23 69: 94:6 96:15 24 77:4,7,10 80:1 85:18

Heritage Reporting Corporation

Sheet 8 serve - using
 107
Official - Subject to Final Review
valuable [2] 9:16 20:17 word [2] 26:23 59:21
value [2] 7:3,11 words [5] 22:11 62:6 67:12
variance [1] 78:16 79:21 96:2
variances [3] 77:8,8 78:25 work [4] 40:6 46:9 48:8,12
variation [1] 14:3 workability [2] 38:14 85:2
various [2] 17:17 41:1 works [1] 65:2
vary [1] 78:16 world [3] 45:11 46:7 57:24
varying [1] 41:6 worms [2] 77:25 78:2
versus [3] 3:5 78:4 86:17 worth [2] 3:19 49:21
via [3] 27:4 30:23 44:21 writ [2] 27:1,4
view [5] 11:9 12:15 25:17 write [1] 58:7
36:24 58:3
viewed [3] 8:22,24 85:6
Y
years [1] 84:9
W York [3] 19:11 30:2,3
walk [1] 56:20
wanted [4] 75:20 90:19 92:
Z
16 93:5 zone [1] 49:11

wants [5] 24:18,19,21 76:

14 97:4
warehouse [1] 32:6
Washington [2] 1:10,23
water [2] 29:12,22
way [29] 8:22 9:21 10:19,22
11:8 13:6,18 14:7 15:8 17:
16,20 31:7 38:17,18,19,20
44:1 46:13 52:12,13 59:10
60:13 61:25 70:7 79:14 90:
22 94:19 97:3,8
ways [1] 75:10
weird [1] 37:16
welcome [3] 51:7 57:8 71:
3
well-articulated [1] 37:21
well-crafted [3] 27:25 37:
15,22
well-established [1] 70:
13
whatever [9] 10:24 22:9
23:21 26:22 42:16 44:10
63:20 70:14 91:23
whereas [1] 40:1
Whereupon [1] 98:12
whether [41] 4:25 5:11,16
7:6 9:21 18:20 23:17 24:3
27:2 29:10 34:6,8 41:3 47:
18 53:12,22 54:16,20 55:1,
16,17,23,23,24 56:12,12,
13 57:8 58:12,15 59:5 67:
14 70:7 76:2,7,8 80:19 81:
3 82:20 87:8 88:13
whole [4] 19:19 21:23 48:
18 67:8
wide [2] 26:17 87:13
widely [2] 84:16 86:1
will [12] 36:16 40:4,7,9 44:
18 50:17,18 64:6 66:14 76:
15 93:16 97:5
win [5] 23:15 35:21,23 70:7,
25
within [7] 7:16 18:11 41:6,
16 45:9 51:24 85:5
Without [2] 50:4 97:11
wondering [2] 47:18 70:6

Heritage Reporting Corporation

Sheet 9 valuable - zone