Earlier this week, the Supreme Court declined review of the Ninth Circuit’s decision in McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008). In that case, the Ninth Circuit held:
This casepresents an issue of first impression in this Circuit — whether alegislative, generally applicable development condition that does notrequire the owner to relinquish rights in the real property, as opposedto an adjudicative land-use exaction, should be reviewed pursuant tothe 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 Cato Institute which along with others filed an amicus brief urging the Court to review the case, summarized 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 denial of review does not establish any precedent, and McClung remains good law in the Ninth Circuit.