Adams v. City of Seattle

Charles Gardner is a Research Fellow at the Mercatus Center at George Mason University. His research focuses on planning law and housing affordability. Mr. Gardner submits this brief as part of his work as a Mercatus scholar.

Emily Hamilton is a Senior Research Fellow at the Mercatus Center at George Mason University. Her research focuses on urban economics. Dr. Hamilton submits this brief as part of her work as a Mercatus scholar.

The Mercatus Center, as an organization, takes no position on the arguments in this brief or the issues in the case.

No party or counsel for any party in the pending appeal has authored this brief, in whole or in part, and no entity or person, aside from amici curiae, the Mercatus Center, and their counsel, made any monetary contribution intended to fund the preparation of this brief.

This case is important to amici because it involves government authority to exploit the land-use permitting process to extract exactions from landowners. These exactions have important implications at a national level for the supply of new housing and housing affordability, issues which are of foremost concern to the amici and the research they perform.

Amici seek to assist the Court by “supplementing the efforts of counsel” for the parties and “drawing the court’s attention” to facts and “law that might otherwise escape consideration.” Funbus Sys., Inc. v. Cal. Pub. Utils. Comm’n, 801 F.2d 1120, 1125 (9th Cir. 1986). Specifically, this amicus brief places the legal issues in this case in a national economic context, demonstrating that when, as here, excessive permit conditions curtail housing supply, there can be no “essential nexus” between the government’s permit program and its stated goal: housing affordability.

Among the questions before this Court are (1) whether the Nollan and Dolan tests set out by the Supreme Court under its unconstitutional conditions doctrine are applicable to determine the constitutionality of permit conditions on a facial challenge; and (2) whether under Nollan, the permit conditions required by the City of Seattle’s Mandatory Housing Affordability residential permitting program (“MHA”) lack an “essential nexus” with the program’s stated objective of mitigating rising housing costs. As discussed herein, basic economics—including the law of supply and demand—demonstrate that there can be no “essential nexus” between the MHA’s mandated fees and restrictions on housing development, which prevent housing growth, and the program’s stated policy objective of lowering housing costs. Indeed, inclusionary zoning policies like the MHA program can exacerbate the twin problems of insufficient housing construction and high housing costs.