FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL MCCLUNG; ANDREA 

MCCLUNG, individually and as a

marital community,

Plaintiffs-Appellants,

No. 07-35231 and

D.C. No. TAPPS BREWING, INC., a  CV-06-05006-RBL Washington corporation,

Plaintiff, OPINION

v.

CITY OF SUMNER,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

July 11, 2008—Seattle, Washington

Filed September 25, 2008

Before: Richard R. Clifton and N. Randy Smith,

Circuit Judges, and J. Michael Seabright,* District Judge.

Opinion by Judge Seabright

*The Honorable J. Michael Seabright, United States District Judge for

the District of Hawaii, sitting by designation. 

13741
COUNSEL

William C. Severson, William C. Severson PLLC, Seattle,

Washington, for the plaintiffs-appellants. 

Michael C. Walter, Keating, Bucklin & McCormack, Inc.,

Seattle, Washington, for the defendant-appellee.

OPINION

SEABRIGHT, District Judge: 

In 1995, Daniel and Andrea McClung (the “McClungs”)

sought to develop property they owned in the City of Sumner

(the “City”), and learned that their underground storm drain

pipe did not meet the City’s requirement for new developments to include pipes at least 12 inches in diameter. The

McClungs assert that the City’s subsequent request that they

install a 24-inch pipe in exchange for the City approving their

permit application and waiving certain permit and facilities

fees effected an illegal taking of their property. This case

presents an issue of first impression in this 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 Transportation Co. v. City of New York, 438 U.S. 104

(1978), or the nexus and proportionality standards of Nollan

13744 TAPPS BREWING v. CITY OF SUMNER
v. California Coastal Commission, 483 U.S. 825 (1987), and

Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm,

holding that the Penn Central analysis applies to the 12-inch

pipe requirement. As for the installation of the 24-inch pipe,

we conclude that the McClungs voluntarily contracted with

the City to install the 24-inch pipe and thus the installation of

that pipe was not a “taking” by the City. 

I.

Between 1990 and 1992, the City experienced considerable

flooding. To address this problem, the City took several steps,

including adopting Ordinance 1603 which requires most new

developments to include storm pipes with a minimum 12-inch

diameter, outlining plans for the City to replace certain storm

pipes with 18-, 21-, and 24-inch pipe, and constructing a

storm drainage trunk line paid for in part through raising the

stormwater general facility charge (“GFC”) imposed on property owners. 

Between 1983 and 1993, the McClungs purchased four

adjoining residential properties in the City, and in May 1994,

approached the City about converting one property into a

Subway sandwich shop and paving an alley for use as a parking lot. The City had previously vacated this alley in

exchange for certain conditions, including receiving an easement for public utilities and services that ran under the alley.

During the course of discussions regarding the steps the

McClungs would need to take to comply with the City’s flood

requirements, the parties learned that the storm pipe under the

property was 12-inch pipe for four feet, then changed to 6-

inch pipe for the remaining 350 feet. Because this pipe did not

comply with Ordinance 1603 and did not meet the City plans

for replacing certain pipes with 24-inch pipe, the City Engineer, via letter, offered to waive certain fees in exchange for

the McClungs installing a 24-inch instead of 12-inch pipe: 

To correct existing deficiencies, meet the needs of

your development and satisfy the future requireTAPPS BREWING v. CITY OF SUMNER 13745
ments as outlined in the Storm Water Comprehensive Plan, a 24-inch diameter storm drain is to be

installed as a condition of development. 

. . . 

As a developer, you are required to install a 12-inch

storm drain as a minimum. My estimate shows the

cost difference between a 12-inch and a 24-inch

diameter pipe ranges from $7,200 to $7,500. To offset the cost of the oversizing to meet the City’s Comprehensive Plan requirements, the City will waive

the storm drainage General Facilities Charge, permit

fees, plan review and inspection charges of the storm

drainage systems for both the development and the

Subway Shop. . . . If you find this acceptable, please

proceed with the revisions to the Plans. 

The McClungs revised their development plan to include a

24-inch pipe, which was approved on April 25, 1996. A 24-

inch pipe was subsequently installed on the property. 

Despite voicing no objection to the 24-inch pipe installation

requirement and receiving the benefit of certain fees being

waived, on April 27, 1998, the McClungs filed a complaint in

Washington state court asserting violations of Washington

state law. After several years of protracted state court litigation (including a summary judgment motion, an appeal, a

trial, and further appeals), the Washington appeals court

found that the McClungs should be permitted to amend their

complaint to allege explicitly a violation of their Fifth

Amendment rights and remanded the action to the trial court.

Tapps Brewing, Inc. v. McClung, 2005 WL 151932, at *8

(Wash. App. Jan. 25, 2005). 

The McClungs subsequently amended their complaint to

allege that the City’s requirement that they upgrade the storm

drain was a taking in violation of the Fifth Amendment. In

13746 TAPPS BREWING v. CITY OF SUMNER
response, the City removed the action to the United States

District Court for the Western District of Washington. 

On cross-motions, the McClungs sought summary judgment on their federal takings claim, and the City sought summary judgment on all remaining claims.1

See Tapps Brewing,

Inc. v. City of Sumner, 482 F. Supp. 2d 1218, 1224-25 (W.D.

Wash. 2007). For the McClungs’ takings claim, the court separately analyzed Ordinance 1603’s requirement that all new

developments include 12-inch storm pipe and the City’s

request that the McClungs install a 24-inch storm pipe.

Applying the ad hoc analysis of Penn Central, the court determined that the 12-inch storm pipe requirement was not an

unconstitutional taking. Id. at 1228-31. Regarding the 12-inch

to 24-inch request, the court found that the McClungs had

contracted to install the 24-inch pipe in exchange for a waiver

of the GFC and various fees. Id. at 1231. The McClungs’

appeal followed. 

II.

The district court’s grant of summary judgment in favor of

the City is reviewed de novo, under the same standards

applied by the district court. Northrop Grumman Corp. v.

Factory Mut. Ins. Co., 538 F.3d 1090, 1094 (9th Cir. 2008).

“We must determine whether, viewing the evidence in the

light most favorable to the nonmoving party, any genuine

issues of material fact exist, and whether the district court correctly applied the relevant substantive law.” Fazio v. City &

County of S.F., 125 F.3d 1328, 1331 (9th Cir. 1997). 

1The district court granted the City’s motion on the McClungs’ state law

claims. See Tapps Brewing, Inc. v. City of Sumner, 482 F. Supp. 2d 1218,

1231-33 (W.D. Wash. 2007). The McClungs do not appeal this determination. 

TAPPS BREWING v. CITY OF SUMNER 13747
III.

A.

Before turning to the merits of this appeal, we address

briefly the issue of ripeness, “lest we overstep our jurisdiction.”

2

Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835,

871 (9th Cir. 2001) (en banc). 

Ripeness “is drawn both from Article III limitations on

judicial power and from prudential reasons for refusing to

exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509

U.S. 43, 57 n.18 (1993); Portman v. County of Santa Clara,

995 F.2d 898, 902 (9th Cir. 1993) (“The ripeness inquiry contains both a constitutional and a prudential component.”).

While Article III ripeness is jurisdictional, “[p]rudential considerations of ripeness are discretionary. . . .” Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1142 (9th

Cir. 2000) (en banc). 

[1] Although the Supreme Court has described takings

claim ripeness as addressing prudential rather than Article III

considerations, see Suitum v. Tahoe Regional Planning

Agency, 520 U.S. 725, 733-34 (1997) (describing the ripeness

standard of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson, 473 U.S. 172 (1985), as a

“prudential hurdle” to a regulatory takings claim), our Circuit

has analyzed takings claim ripeness as raising both prudential

and Article III considerations. Compare Beverly Blvd. LLC v.

City of West Hollywood, 238 Fed. Appx. 210, 212 (9th Cir.

2007) (“We need not resolve whether this claim is ripe under

the standards articulated in Williamson . . . and . . . assume

without deciding that the takings claims are ripe in order to

2The district court found the McClungs’ claim ripe for review. See

Tapps Brewing, Inc., 482 F. Supp. 2d at 1227-28. On appeal, the City originally argued that the McClungs’ takings claim was not ripe, but then at

the hearing agreed with the McClungs that the claim was indeed ripe. 

13748 TAPPS BREWING v. CITY OF SUMNER
reject them on the merits.”); and Weinberg v. Whatcom

County, 241 F.3d 746, 752 n.4 (9th Cir. 2001) (“We assume

without deciding that the Federal takings claim is ripe.”); with

West Linn Corporate Bank L.L.C. v. City of West Linn, 534

F.3d 1091, 1099 (9th Cir. 2008) (describing ripeness as “ ‘determinative of jurisdiction’ ” (quoting S. Pac. Transp. Co. v.

City of L.A., 922 F.2d 498, 502 (9th Cir. 1990))); Vacation

Village, Inc. v. Clark County, 497 F.3d 902, 912 (9th Cir.

2007) (same); and Hacienda Valley Mobile Estates v. City of

Morgan Hill, 353 F.3d 651, 661 (9th Cir. 2003) (affirming

district court’s determination of lack of subject matter jurisdiction based on a Williamson analysis). 

[2] We need not determine the exact contours of when takings claim ripeness is merely prudential and not jurisdictional.

In this case, we easily conclude that the facts presented raise

only prudential concerns. The McClungs installed the storm

pipe over ten years ago, resulting in a clearly defined and concrete dispute. See Thomas, 220 F.3d at 1139 (stating that Article III ripeness requires the court to analyze whether the

“alleged injury is too ‘imaginary’ or ‘speculative’ to support

jurisdiction”). Because this case raises only prudential ripeness concerns, we have discretion to assume ripeness is met

and proceed with the merits of the McClungs’ takings claim.

Accordingly, we do not resolve whether this claim is ripe

under the standards articulated in Williamson, and instead

assume without deciding that the takings claim is ripe in order

to address the merits of the appeal. 

B.

At issue are two different upgrades — Ordinance 1603

requiring that all new developments include a minimum of

12-inch storm pipe, and the request that the McClungs install

a 24-inch pipe. We analyze these two upgrades separately,

and hold that the district court properly found that the Penn

Central analysis applies to the 6- to 12- inch requirement, and

that the McClungs contracted to install a 24-inch pipe. 

TAPPS BREWING v. CITY OF SUMNER 13749
1.

[3] The Ninth Circuit has yet to address 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

addressed under the Penn Central or Nollan/Dolan framework. Other courts addressing this general issue have come to

different conclusions. Compare Clajon Prod. Corp. v. Petera,

70 F.3d 1566, 1579 (10th Cir. 1995) (finding that “[g]iven the

important distinctions between general police power regulations and development exactions, and the resemblance of

development exactions to physical takings cases, we believe

that the ‘essential nexus’ and ‘rough proportionality’ tests are

properly limited to the context of development exactions”);

City of Olympia v. Drebick, 126 P.3d 802, 807-08 (Wash.

2006) (rejecting the view “that local governments must base

GMA impact fees on individualized assessments of the direct

impacts each new development will have on each improvement planned in a service area”); San Remo Hotel L.P. v. City

& County of S.F., 41 P.3d 87, 104-05 (Cal. 2002) (distinguishing between a fee condition applied to a single property

that would be subject to Nollan/Dolan review, and a generally

applicable development fee); Home Builders Ass’n of Cent.

Ariz. v. City of Scottsdale, 930 P.2d 993, 1000 (Ariz. 1997)

(finding that Dolan does not apply to a generally applicable

legislative decision); and McCarthy v. City of Leawood, 894

P.2d 836, 845 (Kan. 1995) (concluding that nothing in Dolan

supports its application to impact fees); with Town of Flower

Mound v. Stafford Estates Ltd., 135 S.W.3d 620, 636 (Tex.

2004) (finding that the Nollan/Dolan analysis is not limited to

dedications of land); and Home Builders Ass’n v. City of

Beavercreek, 729 N.E.2d 349, 356 (Ohio 2000) (applying

Nollan/Dolan in “evaluating the constitutionality of an impact

fee ordinance”). 

After reviewing the cases establishing these tests and the

principles underlying them, we conclude that Penn Central

applies to Ordinance 1603.

13750 TAPPS BREWING v. CITY OF SUMNER
A plaintiff seeking to challenge a government action as an

uncompensated taking of private property may proceed under

one of four theories: by alleging (1) a physical invasion of

property, (2) that a regulation completely deprives a plaintiff

of all economically beneficial use of property, (3) a general

regulatory takings challenge pursuant to Penn Central, or (4)

a land-use exaction violating the standards set forth in Nollan

and Dolan. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 548

(2005). At issue here is application of the latter two doctrines.

[4] In Penn Central, the New York City Landmarks Preservation Commission refused to approve plans to construct an

office building over Grand Central Terminal due to its “landmark” status under the Landmarks Preservation Law. Penn

Central, 438 U.S. at 116-17. Penn Central recognized that

“[a] ‘taking’ may more readily be found when the interference

with property can be characterized as a physical invasion by

government, than when interference arises from some public

program adjusting the benefits and burdens of economic life

to promote the common good.” Id. at 124 (citation omitted);

see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 535 U.S. 302, 322-23 (2002) (distinguishing cases involving physical possession of property versus

regulations that do not cause a categorical taking). Penn Central acknowledged that it was “unable to develop any ‘set formula’ ” for evaluating these types of claims, but identified

relevant factors, such as the economic impact of the regulation on the claimant, the extent to which the regulation has

interfered with distinct investment-backed expectations, and

the character of the governmental action. Penn Central, 438

U.S. at 124; see also Lingle, 544 U.S. at 538-39 (discussing

Penn Central). 

In comparison to Penn Central, “[b]oth Nollan and Dolan

involved Fifth Amendment takings challenges to adjudicative

land-use exactions — specifically, government demands that

a landowner dedicate an easement allowing public access to

her property as a condition of obtaining a development perTAPPS BREWING v. CITY OF SUMNER 13751
mit.” Lingle, 544 U.S. at 546. In Nollan, the California

Coastal Commission conditioned the grant of Nollan’s

development/rebuilding permit of his beachside home on Nollan’s dedication of an easement on the property to the public.

Nollan, 483 U.S. at 828. In Dolan, the Oregon Land Use

Board of Appeals conditioned the grant of Dolan’s permit to

expand a store and parking lot on Dolan’s dedication of a portion of the relevant property as a “greenway” and bicycle/

pedestrian pathway. Dolan, 512 U.S. at 379-80. The Supreme

Court recently described the holdings of these cases as follows: 

In each case, the Court began with the premise

that, had the government simply appropriated the

easement in question, this would have been a per se

physical taking. [Dolan, 512 U.S. at 384; Nollan,

483 U.S. at 831-32]. The question was whether the

government could, without paying the compensation

that would otherwise be required upon effecting such

a taking, demand the easement as a condition for

granting a development permit the government was

entitled to deny. The Court in Nollan answered in the

affirmative, provided that the exaction would substantially advance the same government interest that

would furnish a valid ground for denial of the permit. [Nollan, 483 U.S. at 834-37.] The Court further

refined this requirement in Dolan, holding that an

adjudicative exaction requiring dedication of private

property must also be “ ‘rough[ly] proportiona[l]’

. . . both in nature and extent to the impact of the

proposed development.” [Dolan, 512 U.S. at 391.] 

Lingle, 544 U.S. at 546-47. In Nollan, the Court stuck down

the condition as an unconstitutional taking because there was

no logical connection (i.e., no “essential nexus”) between the

adverse impacts of the development and the required easement. Nollan, 483 U.S. at 837. In Dolan, the Court found the

exactions unconstitutional because the City failed to show that

13752 TAPPS BREWING v. CITY OF SUMNER
the conditions were roughly proportional to the negative

impacts caused by the development. Dolan, 512 U.S. at 394-

95. 

The facts of Nollan and Dolan — involving adjudicative,

individual determinations conditioning permit approval on the

grant of property rights to the public — distinguish them from

the line of cases upholding general land use regulations.

Dolan, 512 U.S. at 384-85. Unlike the facts of Dolan, cases

questioning land use regulations “involve[ ] essentially legislative determinations classifying entire areas of the city” and

placing limitations on the use owners may make of their property. Id. at 385. In comparison to legislative land determinations, the Nollan/Dolan framework applies to adjudicative

land-use exactions where the “government demands that a

landowner dedicate an easement allowing public access to her

property as a condition of obtaining a development permit.”

Lingle, 544 U.S. at 546. Indeed, the Supreme Court has recognized that it has “not extended the rough-proportionality test

of Dolan beyond the special context of exactions — land-use

decisions conditioning approval of development on the dedication of property to public use.” City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702 (1999)

(emphasis added); see also Tahoe-Sierra Pres. Council, Inc.

v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 772 n.11 (9th

Cir. 2000), aff’d 535 U.S. 302 (2002) (noting that the Nollan/

Dolan framework applies to “land-use decisions conditioning

approval of development on the dedication of property to public use” and is “inapposite to regulatory takings cases outside

[this] context”). 

[5] Applying the general principles underlying the Nollan/

Dolan and Penn Central cases, we hold that Ordinance 1603’s

requirement that new developments include at least 12-inch

storm pipes is subject to review under the Penn Central analysis. 

[6] Similar to Penn Central, which addressed whether

restrictions imposed by law on the plaintiff’s development of

TAPPS BREWING v. CITY OF SUMNER 13753
a landmark building effected a taking, see Penn Central, 438

U.S. at 122, at issue here is whether Ordinance 1603 — which

applies to all new developments — effected a taking by

requiring the McClungs to install a 12-inch pipe. Ordinance

1603 is akin to the “classic example” recognized by Penn

Central of zoning laws that generally “do not affect existing

uses of real property” but rather affect proposed development,

and are upheld where the “ ‘health, safety, morals, or general

welfare’ would be promoted by prohibiting particular contemplated uses of land.” Id. at 125 (quoting Nectow v. Cambridge, 277 U.S. 183, 188 (1928)). That Ordinance 1603

required the McClungs to take the affirmative step of installing a new pipe, as opposed to prohibiting development generally, does not change the analysis. Indeed, Ordinance 1603 is

less intrusive than such zoning laws because the McClungs

were able to build their Subway sandwich shop after installation of the legislatively-mandated pipe. 

Unlike Nollan and Dolan, the facts of this case involve neither an individual, adjudicative decision, nor the requirement

that the McClungs relinquish rights in their real property.

Ordinance 1603 was the source of the 12-inch storm pipe

requirement, not an adjudicative determination applicable

solely to the McClungs. Further, the City already had an easement for the storm pipe such that the McClungs gave up no

rights to their real property. To extend the Nollan/Dolan analysis here would subject any regulation governing development to higher scrutiny and raise the concern of judicial

interference with the exercise of local government police

powers. As noted by San Remo Hotel, 41 P.3d at 105, any

concerns of improper legislative development fees are better

kept in check by “ordinary restraints of the democratic political process.” 

The McClungs make several arguments against application

of the Penn Central standard, none of which is compelling.

First, relying on Brown v. Legal Foundation of Washington,

538 U.S. 216 (2003), the McClungs argue that the require13754 TAPPS BREWING v. CITY OF SUMNER
ment that they install a new pipe acted as a monetary exaction

and resulted in a per se physical taking of their money, to

which Penn Central does not apply. Brown did not address

monetary exactions, and in any event, did not apply the

Nollan/Dolan analysis to the facts presented. Rather, Brown

addressed the narrow issue of whether a transfer of interest

accrued on an IOLTA account to the Legal Foundation of

Washington was an uncompensated taking, and found that it

should be analyzed under a per se approach as opposed to the

Penn Central analysis. Brown, 538 U.S. at 235. 

[7] We further reject the McClungs’ characterization of

Ordinance 1603 as creating a monetary exaction — it does not

require the payment of money in exchange for permit

approval. Rather, it provides an across-the-board requirement

for all new developments. Even if the upgrade could be

viewed as a monetary exaction for the cost of upgrading the

storm pipe, however, Nollan/Dolan still would not apply. A

monetary exaction differs from a land exaction — “[u]nlike

real or personal property, money is fungible.” United States

v. Sperry Corp., 493 U.S. 52, 62 n.9 (1989); see also San

Remo Hotel, L.P. v. S.F. City & County, 364 F.3d 1088, 1097-

98 (9th Cir. 2004), aff’d 545 U.S. 323 (2005) (stating that the

state court’s analysis of the state issues “was thus equivalent

to the approach taken in this circuit, which has also rejected

the applicability of Nollan/Dolan to monetary exactions such

as the ones at issue here”); Garneau v. City of Seattle, 147

F.3d 802, 808 (9th Cir. 1998) (upholding a city ordinance that

required landlords to pay a $1,000 per tenant relocation assistance fee to low income tenants displaced by the change of

use or substantial rehabilitation of a property);3 Commercial

3The main opinion of Garneau v. City of Seattle, 147 F.3d 802 (9th Cir.

1998), written by Judge Brunetti, found that the Nollan/Dolan analysis did

not apply to this permit condition. Id. at 808. However, in concurring

opinions, Judge O’Scannlain stated that Nollan/Dolan should apply, id. at

814, while District Judge Williams found that the permit condition should

be analyzed under the Due Process Clause instead of the Fifth Amendment. Id. at 818. In the end, two of the three Garneau judges agreed that

Nollan/Dolan did not apply to the permit requirement. 

TAPPS BREWING v. CITY OF SUMNER 13755
Builders of N. Cal. v. Sacramento, 941 F.2d 872, 873-75 (9th

Cir. 1991) (rejecting application of Nollan to ordinance that

conditioned the issuance of nonresidential building permits on

the payment of a fee used to assist in financing low-income

housing). 

Next, the McClungs attempt to recast the facts as involving

an individualized, discretionary exaction as opposed to a general requirement imposed through legislation. The McClungs

make this argument in recognition of the fact that at least

some courts have drawn a distinction between adjudicatory

exactions and legislative fees, which have less chance of

abuse due to their general application. See San Remo Hotel,

41 P.3d at 104 (distinguishing between a fee condition applied

to single property that would be subject to Nollan/Dolan

review and a generally applicable development fee). The facts

do not support the McClungs falling within the former category. All new developments must have at least 12-inch storm

pipe; there is no evidence on the record that the McClungs

were singled out.4

[8] In sum, we affirm the district court’s determination that

the Penn Central analysis applies to the requirement that the

McClungs install a 12-inch storm pipe.5

4The McClungs also argue that Ordinance 1603 does not require a

developer to replace non-conforming storm pipe, and even if it did, the

requirement is invalid under Revised Code of Washington (“RCW”)

82.02.020, which prohibits the City from imposing fees on developments.

The district court previously found that Ordinance 1603 “established

twelve inches as the minimum pipe size requirement for any new development in the City of Sumner.” Tapps, 482 F. Supp. 2d at 1228 n.7. The district court also addressed, and granted summary judgment on, the

McClungs’ state law claim for violation of RCW 82.02.020. Id. at 1233.

The McClungs did not appeal the district court’s grant of summary judgment on the state law claims and did not raise either of these arguments

in their Opening Brief. The McClungs are therefore precluded from making this argument. 

5Because the McClungs’ appeal is premised on the contention that

Nollan/Dolan review should apply here — and they have not argued that

the City was not entitled to summary judgment if Penn Central applied —

our conclusion that Penn Central provides the proper standard resolves the

McClungs’ challenge to the City’s 12-inch pipe requirement. 

13756 TAPPS BREWING v. CITY OF SUMNER
2.

In comparison to the 12-inch requirement, the request that

the McClungs install a 24-inch pipe was not based on any

general regulation applicable to the McClungs, but rather an

individualized request. We need not decide whether this factual difference affects whether the Nollan/Dolan or Penn Central analysis applies, however, because we hold that the

McClungs impliedly contracted to install a 24-inch pipe. See

Hewitt v. Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991) (“It is

well-established that this court should avoid adjudication of

federal constitutional claims when alternative state grounds

are available.”). 

[9] Under Washington law, “[b]efore a court can find the

existence of an implied contract in fact, there must be an

offer; there must be an acceptance; the acceptance must be in

the terms of the offer; it must be communicated to the offeror;

there must be a mutual intention to contract; [and] there must

be a meeting of the minds of the parties.” Milone & Tucci,

Inc. v. Bona Fide Builders, Inc., 301 P.2d 759, 762 (Wash.

1956) (internal citation omitted). “[U]nder a unilateral contract, an offer cannot be accepted by promising to perform;

rather, the offeree must accept, if at all, by performance, and

the contract then becomes executed.” Multicare Med. Ctr. v.

Dep’t of Social & Health Servs., 790 P.2d 124, 131 (Wash.

1990). The City has the burden to “prove each essential fact

[of a contract], including the existence of a mutual intention.”

Cahn v. Foster & Marshall, Inc., 658 P.2d 42, 43 (Wash.

App. 1983); see also Bogle & Gates, P.L.L.C. v. Zapel, 90

P.3d 703, 705 (Wash. App. 2004). 

[10] In its December 27, 1995 letter, the City offered to

waive certain permit fees in exchange for the McClungs’

installation of a 24-inch storm pipe: 

As a developer, you are required to install a 12-inch

storm drain as a minimum. My estimate shows the

TAPPS BREWING v. CITY OF SUMNER 13757
cost difference between a 12-inch and a 24-inch

diameter pipe ranges from $7,200 to $7,500. To offset the cost of the oversizing to meet the City’s Comprehensive Plan requirements, the City will waive

the storm drainage General Facilities Charge, permit

fees, plan review and inspection charges of the storm

drainage systems for both the development and the

Subway Shop. . . . If you find this acceptable, please

proceed with the revisions to the Plans. 

(emphasis added). This letter provides the McClungs the

choice of either agreeing to install a 12-inch pipe and pay the

usual fees, or install a 24-inch pipe and receive the fee waiver.

The McClungs accepted the latter option by revising their

development plans and installing a 24-inch pipe. Thus, the

McClungs impliedly contracted to install the 24-inch pipe. 

[11] None of the McClungs’ arguments against the existence of a contract has merit. First, the McClungs argue that

installing the 24-inch pipe was a mandatory requirement. The

plain language of the December 27, 1995 letter clearly shows

otherwise. Second, the McClungs claim that they did not

understand the letter as an offer. Their subjective intent, however, is irrelevant where their objective actions indicate

acceptance of the offer. See City of Everett v. Sumstad’s

Estate, 631 P.2d 366, 367 (Wash. 1981) (stating that Washington follows the “objective manifestation theory of contracts”). Third, the McClungs argue that for there to be an

implied contract, it would have to cover the entire upgrade

from 6-inch to 24-inch pipe because the 6-inch to 12-inch

requirement was illegal and/or contrary to Nollan/Dolan. As

discussed above, Nollan/Dolan does not apply, and the district

court rejected their state law claims. Finally, the McClungs

argue that the City misrepresented its authority and the

McClungs acted under compulsion. There is absolutely no

legal or factual support for these arguments, and we reject this

claim out of hand. Because the McClungs were not compelled

13758 TAPPS BREWING v. CITY OF SUMNER
to install a 24-inch pipe, but voluntarily contracted with the

City to do so, there was simply no “taking” by the City. 

IV.

We hold that the district court properly determined that the

Penn Central standard applies to the City’s requirement that

the McClungs install a storm pipe at least 12 inches in diameter, and that the McClungs impliedly contracted to install a

24-inch pipe. 

AFFIRMED.

TAPPS BREWING v. CITY OF SUMNER 13759