The Washington Examiner has published an op-ed about McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), petition for cert. filed May 2, 2009, “When the Government Takes Your Money, It Takes Your Property,” by Cato Institute’s Ilya Shapiro and Pacific Legal Foundation’s Lauren Wiggins (who filed an amicus brief urging the Court to review the case).
McClung involves an exaction of money, and not land, as a condition of a development permit. The Ninth Circuit held that legislative exactions are not subject to Nollan/Dolan:
Courts are deeply divided over whether the Fifth Amendment applies tothe taking of property by means of fees such as the ones the McClungswere assessed. They are also split as to whether legislatively imposedconditions allow a local government to avoid making individualizeddeterminations of a development’s impact. Courts like the NinthCircuit rely on the fact that the Supreme Court has never actuallyspelled out that money is property (an issue also at the heart of anotherwise unrelated case seeking high court review, Empress Casino v.Giannoulias). Nor has the Court clearly stated that monetaryconditions placed on development are subject to the same scrutiny asother restrictions and regulations.
Our summary of the Ninth Circuit’s decision and the cert petition is posted here, along with the authors’ amicus brief.