A cert petition has been filed seeking review of the Ninth Circuit’s decision in McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), the case in which the court held:
This case presents an issue of first impression in this Circuit — whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm, holding that the Penn Central analysis applies to the 12-inch pipe requirement.
The Ninth Circuit’s opinion is available here. The petition presents three questions:
As a condition for approving their building permit, the City of Sumner required Dan and Andrea McClung to replace a much undersized City-owned storm sewer that served their property and numerous other lots within a several block area.1 While the McClungs’ project contributed little to the need for the new larger pipe, they were nevertheless required to bear 85 percent of its cost. The McClungs ask the Court to resolve whether just compensation is due when a permit applicant is required to upgrade a public facility far beyond what is necessary to mitigate the impacts of the new development. The questions presented are:
1. When government requires a land use permit applicant to upgrade publicly-owned infrastructure facilities to legislatively prescribed standards, is just compensation due where the government fails to show that the burden of the upgrade is roughly proportional to the impacts of the new development?
2. Do the nexus and proportionality standards of Nollan v. California Coastal Commission, and Dolan v. City of Tigard, apply only to required dedications of real property, or do they equally apply to a monetary exaction that requires the permit applicant to upgrade a public infrastructure facility?
3. Is a property owner barred from seeking just compensation because he yields under financial duress to a permit condition that effects a taking of property?
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1. The first sentence of the Ninth Circuit opinion inaccurately implies that the storm water pipe at issue belongs to the McClungs: “the McClungs … learned that their underground storm drain pipe did not meet the City’s requirement….” (emphasis added). App. A at 4a. The pipe is not the McClungs’ pipe; it is the City’s pipe. That fact is uncontroverted. App. D at 52a, App. G at 59a–60a.
Download the petition here. The Pacific Legal Foundation, the Cato Institute and the Building Industry Association of Washington have filed an amicus brief, available here. The amicus brief is also posted at JD Supra here, along with a summary of the case:
When Daniel and Andrea McClung applied for a permit to build a smallbusiness on their property, the City of Sumner, Washington, chargedthem nearly $50,000 to pay for improvements to the City’s entire stormdrainage system. The McClungs sued the City under the Fifth Amendmentto the Constitution, whose Takings Clause prohibits the government from”taking” private property for public use without just compensation.They argue that the City cannot force them to pay fees for off-sitepipes absent proof that their development would have a specificdetrimental effect on the existing drainage system—and without anyevidence that the impact was worth $50,000. The Ninth Circuit ruled infavor of the City, reasoning that money is not property (so there couldbe no unconstitutional taking) and that because the fees were imposedby ordinance (so the City’s determination that the pipes neededupgrading was justification enough for the fees). The McClungs have nowasked the Supreme Court to review their case. Cato, joined by thePacific Legal Foundation and the Building Industry Association ofWashington, argues that this case is a perfect vehicle for the Court torevisit the scope of Fifth Amendment protections. Our brief highlightsthe deep divisions among state and federal courts over severalimportant issues, such as whether the Takings Clause applies tolegislative (as opposed to bureaucratic) exactions and whether itapplies to monetary exactions (not just burdens on land use). The Courtshould take this case to ensure that the standard for reviewingdevelopment conditions is uniform across the country and make clearthat property right protections do not depend on ill-defineddistinctions such as the form of property demanded by the government orthe manner in which a condition is imposed.
The Supreme Court’s docket for the case is available here.