67 F.4th 816
6th Cir.2023Background
- Nashville enacted a sidewalk ordinance requiring building-permit applicants in designated areas to dedicate a public pedestrian easement and either construct a sidewalk meeting city standards or pay an in-lieu fee (fee = estimated cost per linear foot, capped at 3% of construction value).
- The ordinance allows administrative waivers for hardships and variances from the Board of Zoning Appeals; in practice some applicants were required to build sidewalks to nowhere or pay fees used miles away.
- James Knight and Jason Mayes sought permits under the ordinance, were denied waivers/variances, paid or faced fees, and sued alleging a Fifth Amendment taking.
- The district court granted summary judgment for Nashville, applying Penn Central’s regulatory-takings balancing test rather than the Nollan/Dolan unconstitutional-conditions (exactions) framework.
- On appeal, the Sixth Circuit reversed: it held Nollan/Dolan/Koontz apply to legislatively enacted permit conditions as well as ad hoc administrative ones, and remanded for the district court to address remedy and any undeveloped factual issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Governing test for permit conditions | Nollan/Dolan (unconstitutional-conditions/exactions) governs conditions on building permits, including legislative ones | Penn Central (regulatory-takings balancing) should govern generally applicable legislative conditions; Nollan applies only to ad hoc administrative exactions | Nollan/Dolan/Koontz apply to permit conditions whether imposed administratively or legislatively; no textual, historical, or precedential basis to distinguish by actor |
| Whether the sidewalk ordinance satisfies Nollan/Dolan (nexus and rough proportionality) | Ordinance lacks nexus and rough proportionality (e.g., ‘‘sidewalks to nowhere’’; fees used far from the property) | Nashville did not meaningfully defend the ordinance under Nollan/Dolan on appeal (relied on Penn Central) | The court did not decide the merits: Nashville waived any defense under Nollan/Dolan by failing to brief it; merits left for district court on remand |
| Proper remedy for alleged taking | Plaintiffs sought injunction and restitution/return of in-lieu fees as just compensation | Nashville did not fully brief remedies on appeal | Remanded to district court to determine appropriate remedy (injunction, compensation, or other relief) |
Key Cases Cited
- Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (establishes nexus requirement for exactions as unconstitutional conditions)
- Dolan v. City of Tigard, 512 U.S. 374 (1994) (adds rough-proportionality requirement to exactions review)
- Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013) (applies Nollan/Dolan to monetary exactions and clarifies attempted-taking remedies)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) (multi-factor balancing test for regulatory takings)
- Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021) (treats compelled easements granting public access as per se physical takings)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (regulatory takings rule where a regulation deprives owner of all economically beneficial use)
- Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) (clarifies takings doctrine and distinguishes regulatory takings inquiry)
- Knick v. Township of Scott, 139 S. Ct. 2162 (2019) (rejects state-court exhaustion requirement for federal takings claims)