Posted by: Patricia Salkin | October 27, 2008

Ninth Circuit Finds Penn Central Analysis Applies to Generally Applicable Development Conditions that Do Not Require Owners to Relinquish Rights in Property

As a condition of permit approval for a change in use from a house to a Subway sandwich shop, the City required the property owners to finance the upgrade of a stormwater line from the current requirement of a 12 inch pipe to a 24-inch pipe.  The property owner challenged the requirement as a taking under the Nollan/Dolan tests that require a close connection between the impact of a proposed land use change and any conditions attached to a government land use permit. 


Noting that this was a case of first impression in the Ninth 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, 438 U.S. 104 (1978) or the nexus and proportionality standards of Nollan, 483 U.S. 825 (1987) and Dolan, 512 U.S. 374 (1994),  the Court upheld the District Court’s  determination that the Penn Central analysis applies. Further, in applying that analysis, the Court concluded that the requirement did not effect a regulatory taking with respect to the 12-inch pipe requirement.  As far as the 24-inch pipe requirement, the Court noted that since the property owners voluntarily contracted with the City to install that pipe, the installation was not a “taking” by the City.  


Tapps Brewing Inc. v. City of Sumner, 2008 WL 4349848 (C.A. 9 (wash) 9/25/2008).


The opinion can be accessed at:$file/0735231.pdf?openelement


  1. Again, the federal courts will twist doctrine any way possible to avoid these cases.

    The logic to this decision is totally lacking in any principle whatsoever. Under this logic, local governemnts could adopt a legislative ordianance that requires anyone pulling a building permit for a single family home to pay #1Million toward replacing the town’s sewer plan and the courts would uphold it.

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