Feds. Dist. Court in TN Holds Ordinance Did Not Result in an Unconstitutional Taking Without Compensation

This post was authored by Matthew Loescher, Esq.

Plaintiffs James Knight and Jason Mayes – individuals who owned residential property in Nashville, Tennessee – brought suit challenging the constitutionality of the Sidewalk Ordinance implemented by the Metropolitan Government of Nashville and Davidson County. Plaintiffs described this Ordinance as “conditioning home building permits on the property owner’s funding of sidewalks.” Both parties moved for summary judgment.

Plaintiffs did not argue that the Sidewalk Ordinance, facially or as applied to them, or that it would fail the Penn Central balancing test; instead, they contended that the appropriate standard was the Nollan/Dolan test and that the Sidewalk Ordinance could not pass that test. While the application of the Sidewalk Ordinance in this case shared some features of the “adjudicative” actions at issue in Nollan and Dolan, as it pertains to individual applicants for building permits and also required the granting of a public right-of-way or easement along with the building of the sidewalk, the court found that the Sidewalk Ordinance was essentially “legislative,” and its application therefore did not require individualized, adjudicatory decision making. Accordingly, the court held that the Sidewalk Ordinance at issue was a generally applicable land use regulation and that the Nollan/Dolan standard of review did not apply to generally applicable land use regulations, as opposed to adjudicative land use exactions.

The court next found, upon a review of the record, that Metro is easily satisfied Penn Central. Here, there was no evidence that the economic impact of the Sidewalk Ordinance on the plaintiffs was substantial. Moreover, the costs imposed by the Sidewalk Ordinance, relative to the overall cost of the plaintiffs’ construction projects, was minimal, as the in-lieu fee was capped at three percent of the “total construction value of the permit.” Additionally, there was no evidence that the Ordinance meaningfully interfered with the plaintiffs’ “investment-backed expectations,” as it has been long accepted that sidewalks improve property values ​​– especially as plaintiffs did not refute Metro’s contention that sidewalks, as stated in the Sidewalk Ordinance, benefits the city of Nashville, its residents, and individual property owners and enhances the value, desirability, and safety of the plaintiffs’ properties and neighborhoods. Accordingly, the court granted Metro’s motion for summary judgment.

Knight v Metropolitan Government of Nashville & Davidson County, 572 F. Supp. 3d 428 (MD TN 11/16/2021)

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