Kennedy: Can local gov charge $50K for building permit? Zoning Laws. SCOTUS struck down permit fees

Senator John Kennedy posed hypothetical constitutional questions about federal versus local government authority.

William Mercer, a former U.S. attorney and longtime Montana state legislator, appeared before the Senate Judiciary Committee on Tuesday as President Donald Trump’s nominee for a seat on the U.S. District Court for the District of Montana.

Sen. John Kennedy, (R) Louisiana, questioned Mercer on federalism and property rights, including the constitutionality of federal zoning laws and excessive local permit fees. Mercer responded that zoning traditionally falls under local, not federal, control and said local governments have “inherent authority” to regulate such matters. Pressed by Kennedy on the limits of that authority, Mercer acknowledged that local policies can sometimes conflict with the U.S. Constitution if they cross certain lines. Senator John Kennedy posed hypothetical constitutional questions about federal versus local government authority.

When Kennedy asked whether Congress could constitutionally pass a law taking over local zoning authority from cities, Mercer responded that such federal action would not be constitutional.

“I don’t believe it would be,” Mercer said. “I believe that’s the sort of thing that the constitution has not given Congress the authority under Article One to do that, and in fact, in our system of federalism those things that are not set forth in the constitution reserve to the states.”

Mercer explained that zoning represents “quintessential public health, safety, welfare matters that we reserve to local government to resolve.”

Kennedy also questioned Mercer about potential constitutional limits on local government authority, including scenarios involving excessive building permit fees, testing the nominee’s understanding of takings clause jurisprudence under the Fifth Amendment.

When Kennedy asked whether a local government could charge $50,000 for a building permit, Mercer initially said he believed local government would have that authority and that it would be constitutional.

“I believe, Senator, I believe it would be,” Mercer said. “I think that they could establish that they need in order to engage in the permitting process and go through what they need to do as a local government. I doubt very much whether that would be a violation under a compensable taking under the fifth amendment.”

However, when Kennedy cited the Supreme Court case Sheets v. County of El Dorado, where the Court struck down a $23,420 building permit fee, Mercer acknowledged he was unfamiliar with that precedent.

Kennedy then pressed Mercer on whether local government actions could “step over the line” at some point, and Mercer agreed they could, acknowledging such actions could violate the takings clause.

Kennedy questions District Court Nominees William Mercer in Judiciary Committee

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Kennedy: Can local gov charge $50K for building permit? Zoning Laws. SCOTUS struck down $23,420 building permit fee