ELR Citation: ELR 21376
No(s). 90-15364 (9th Cir. Jul 9, 1991)

The court holds that a condominium developing company, having voluntarily entered into a settlement agreement with a regulatory agency and consented to conducting mitigation measures, cannot now challenge the agreement as a taking because of a subsequent change in the law. Four years after the settlement the Supreme Court decided Nollan v. California Costal Commission, 17 ELR 20918, which articulated a new two-part test for determining whether land use regulation constitutes a taking. The court first holds that, even assurning that the mitigation measures constitute a taking under Nollan if unilaterally imposed, they cannot be a taking because plaintiff negotiated and agreed to the provisions in exchange for the permission to continue its development project without being subject to a newly enacted project review requirement. Further, the parties' agreement to the district court's continued jurisdiction for the purpose of enforcing the agreement does not permit plaintiff to bring an ex post facto challenge to renounce the agreement based on the subsequent changes in the law. In any case, the court holds that the provisions do not constitute a taking under Nollan because they directly furthered the agency's mission to reduce adverse environmental effects resulting from plaintiff's project.

Counsel for Appellant
Gary A. Owen
Crowell, Susich, Owen & Tachs
510 W. 4th St., P.O. Box 1000, Carson City NV 89702
(702) 882-1311

Counsel for Appellee
Thomas J. Hall
305 S. Arlington, P.O. Box 3948, Reno NV 89505
(702) 348-7011

Before: Mary M. Schroeder and Jerome Farris, Circuit Judges, and Edward Dumbauld,^* District Judge.