Reading the Takings Clause in line with the text and history of the Constitution, the Ninth Circuit ruled on September 25th in Tapps Brewing v. City of Sumner that the demanding standard of the Nollan/Dolan line of Fifth Amendment takings clause analysis was limited to cases involving individual, adjudicative decisions requiring the relinquishment of a right in real property (and not merely the payment of a monetary fee or the imposition of a permit condition).

After suffering a period of widespread flooding, the City of Sumner passed a generally applicable ordinance that required new developments to include storm pipes at least 12 inches in diameter. The individuals at the heart of the Ninth Circuit case, the McClungs, discovered that the property they wished to develop in Sumner did not meet this requirement. When the city sought to enforce its storm pipe requirement, the McClungs sued, arguing that the city’s requirement that they upgrade their pipe was an unconstitutional taking under the Fifth Amendment. In denying the McClungs claims, the Ninth Circuit distinguished the Nollan/Dolan cases—which involved “adjudicative, individual determinations conditioning permit approval on the grant of property rights to the public”—from the Sumner regulation, which was a general land use regulation.

Echoing the arguments made in a brief (pdf) filed by CAC’s predecessor organization Community Rights Counsel on behalf of our client, International Municipal Lawyers Association, the Tapps Brewing Court noted the consequences if it did not properly limit the application of demanding Nollan/Dolan standard: “To extend the Nollan/Dolan analysis here would subject any regulation governing development to higher scrutiny and raised the concern of judicial interference with the exercise of local government police powers.” The Ninth Circuit’s opinion properly interprets the Fifth Amendment and protects the ability of state and local governments to control development and ensure a sustainable balance between environmental concerns and land use.

The opinion is available here.