UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ JAMES KNIGHT; JASON MAYES, │ Plaintiffs-Appellants, │ > No. 21-6179 │ v. │ │ METROPOLITAN GOVERNMENT OF NASHVILLE & │ DAVIDSON COUNTY, TENNESSEE, │ Defendant-Appellee. │ ┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:20-cv-00922—Aleta Arthur Trauger, District Judge.

Argued: July 21, 2022

Decided and Filed: May 10, 2023

Before: BATCHELDER, WHITE, and MURPHY, Circuit Judges. _________________

COUNSEL ARGUED: Braden H. Boucek, SOUTHEASTERN LEGAL FOUNDATION, Roswell, Georgia, for Appellants. John W. Ayers, METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Nashville, Tennessee, for Appellee. ON BRIEF: Braden H. Boucek, Kimberly S. Hermann, Celia Howard O’Leary, SOUTHEASTERN LEGAL FOUNDATION, Roswell, Georgia, Meggan S. DeWitt, BEACON CENTER OF TENNESSEE, Nashville, Tennessee, for Appellants. John W. Ayers, Allison L. Bussell, METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Nashville, Tennessee, for Appellee. Chance Weldon, TEXAS PUBLIC POLICY FOUNDATION, Austin, Texas, George A. Dean, TUNE ENTREKIN & WHITE, PC, Nashville, Tennessee, Jay R. Carson, WEGMAN HESSLER, Cleveland, Ohio, Daniel T. Woislaw, PACIFIC LEGAL FOUNDATION, Arlington, Virginia, Richard N. Coglianese, CITY OF COLUMBUS, Columbus, Ohio, for Amici Curiae.

MURPHY, J., delivered the opinion of the court in which BATCHELDER, J., joined in full. WHITE, J. (pg. 29), concurred in the majority’s application of the Nollan/Dolan test and in its remand for the reasons stated. No. 21-6179 Knight, et al. v. Metro Gov’t of Nashville & Davidson Cnty. Page 2

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OPINION _________________

MURPHY, Circuit Judge. The Metropolitan Government of Nashville and Davidson County (“Nashville”) passed a “sidewalk ordinance” that imposes sidewalk-related conditions on landowners who seek building permits. To obtain a permit, owners must grant an easement across their land and agree to build a sidewalk on the easement or pay an “in-lieu” fee that Nashville will use to build sidewalks elsewhere. This ordinance implicates a question about the Fifth Amendment’s Takings Clause that has divided state courts. See Cal. Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct. 928, 928 (2016) (Thomas, J., concurring in the denial of certiorari).

In particular, the parties here disagree over the “test” that we should use to judge whether the sidewalk ordinance commits a taking. The landowner plaintiffs ask us to apply the “unconstitutional-conditions” test that the Supreme Court adopted to assess conditions on building permits in Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Nashville responds that the Court has applied Nollan’s test only to ad hoc administrative conditions that zoning officials impose on specific permit applicants—not generally applicable legislative conditions that city councils impose on all permit applicants. For legislative conditions, Nashville says, we should tur