Infinium Builders LLC v. Metropolitan Government of Nashville & Davidson County

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

INFINIUM BUILDERS LLC, )

KE HOLDINGS LLC d/b/a ASCENT )

CONSTRUCTION, ENRIQUE SELMAN, )

and JEAN LAFITTE BUILDERS LLC )

f/k/a JEAN LAFITTE DESIGNS LLC, on )

Behalf of Themselves and All Others )

Similarly Situated, )

)

Plaintiffs, )

) Case No. 3:23-cv-00924

v. ) Judge Aleta A. Trauger

)

METROPOLITAN GOVERNMENT OF )

NASHVILLE & DAVIDSON COUNTY, )

)

Defendant. )

MEMORANDUM

Before the court is the Motion for Summary Judgment (Doc. No. 110) filed by defendant

Metropolitan Government of Nashville & Davidson County (“Metro”) along with a supporting

Memorandum of Law (Doc. No. 111), seeking judgment in its favor on the two remaining claims

asserted by the plaintiffs in this case: Count I, a takings claim; and Count III, a due process claim.

The plaintiffs oppose the motion; Metro filed a Reply and a Notice of Supplemental Authority;

and the plaintiffs, with permission, filed a Sur-reply. (Doc. Nos. 123, 127, 131, 134.) For the

reasons set forth herein, the motion will be granted in part and denied in part.

I. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, any party “may move for summary judgment,

identifying each claim or defense . . . on which summary judgment is sought.” Fed. R. Civ. P.

56(a). “The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.

“[A] fact is ‘material’ within the meaning of Rule 56(a) if the dispute over it might affect

the outcome of the lawsuit under the governing law.” O’Donnell v. City of Cleveland, 838 F.3d

718, 725 (6th Cir. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A

dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the

non-moving party.” Peeples v. City of Detroit, 891 F.3d 622, 630 (6th Cir. 2018) (quoting Ford v.

Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002)). By its terms, Rule 56 anticipates “that the

mere existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be no genuine

issue of material fact.” Anderson, 477 U.S. at 247–48 (emphasis in original). In other words, even

if genuine, a factual dispute that is irrelevant or unnecessary under applicable law is of no value in

defeating a motion for summary judgment. On the other hand, “summary judgment will not lie if

the dispute about a material fact is ‘genuine.’” Id.

In ruling on a motion for summary judgment, it is not the judge’s function to make

credibility determinations, “weigh the evidence[,] and determine the truth of the matter, but to

determine whether there is a genuine issue for trial.” Id. at 249. In determining whether a genuine

issue of material fact exists, the court must assume as true the evidence of the nonmoving party

and draw all reasonable inferences in that party’s favor. Id. at 255; Tolan v. Cotton, 572 U.S. 650,

660 (2014). However, the “mere existence of a scintilla of evidence in support of the” nonmoving

party is not sufficient to avoid summary judgment. Anderson, 477 U.S. at 252. “[T]here must be

evidence on which the jury could reasonably find for the [nonmoving party].” Id. The inquiry,

therefore, “asks whether reasonable jurors could find by a preponderance of the evidence that the”

nonmoving party is entitled to a verdict. Id.

II. BACKGROUND

A. The Plaintiffs’ Claims

On August 30, 2023, plaintiffs Infinium Builders LLC (“Infinium”) and KE Holdings LLC,

doing business as Ascent Construction (“Ascent”), filed their original Class Action Complaint,

seeking “legal and equitable relief on behalf of themselves and all others” similarly situated. (Doc.

No. 1 ¶ 1.) After the filing of the first Amended Complaint in January 2024, the court granted in

part Metro’s Motion for Partial Judgment on the Pleadings, dismissing the plaintiff’s unjust

enrichment claim as barred by sovereign immunity. (Doc. No. 81.) The court also held that the

continuing violations doctrine did not apply, as a result of which the plaintiffs’ claims would be

governed by the one-year statute of limitations that applies to claims under 42 U.S.C. § 1983 in

Tennessee. (Id.)

With the filing of the plaintiffs’ Second Amended Complaint (“SAC”) in January 2025,

Jean Lafitte Builders LLC f/k/a Jean Lafitte Designs LLC (“Jean Lafitte”) and Enrique Selman, an

individual, joined as plaintiffs, likewise pursuing claims “on behalf of themselves and all others”

similarly situated. (Doc. No. 105, SAC ¶ 1.)

The plaintiffs seek injunctive relief and damages related to the enforcement of the Metro

Sidewalk Ordinance (“Sidewalk Ordinance” or “Ordinance”), BL2019-1659, codified at Metro.

Code § 17.20.120 et seq., and “the misuse of funds paid pursuant to the Sidewalk Ordinance.” (Id.

¶ 11.) The Sidewalk Ordinance was originally passed by Metro Council in 2017 and amended in

2019. (SAC ¶¶ 12–15.) On its face, it applies to the construction, development, or redevelopment

of certain properties within certain areas of Metropolitan Nashville as designated by the Ordinance

(“Covered Property”). (Id. ¶ 18.) Under the Ordinance, applicants for building permits for Covered

Property were required, in order to obtain a building permit, to (1) build or replace a sidewalk on

the property; (2) make an “in-lieu payment”—that is, contribute to the fund for the pedestrian

benefit zone (“Sidewalk Fund”) in lieu of constructing a sidewalk; or (3) pay a fee and submit an

application for a waiver of the Ordinance to the Metro Zoning Administrator (“MZA”). (Id. ¶ 19.)

The Sidewalk Ordinance requires that Fund contributions “shall be assigned and designated

for implementation of the strategic plan for sidewalks and bikeways, as approved by the planning

commission.” (Id. ¶ 24 (quoting Metro. Code § 17-20-120(D)(2) (2019), Doc. No. 125-1).) The

Ordinance further requires that Fund contributions “shall be allocated within ten years of receipt

of the payment within the same pedestrian benefit zone as the property to be developed; otherwise,

the payment shall be refunded to the building permit applicant.” (Id. ¶ 25 (quoting Metro. Code

§ 17-20-120(D)(2) (2019)).)

In May 2023, Metro ceased enforcement of the Sidewalk Ordinance, following the Sixth

Circuit’s ruling in Knight v. Metropolitan Government, 67 F.4th 816 (6th Cir. 2023), which held

that the question of whether the same Sidewalk Ordinance constituted an unconstitutional taking

as applied to the plaintiffs in that case was governed by the “unconstitutional-conditions” test

adopted by the Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1987),

1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), and not by the “deferential ‘balancing’

test that the Court adopted to assess zoning restrictions in Penn Central Transportation Co. v. New

York City, 438 U.S. 104 (1978).” Knight, 67 F.4th at 818. “In the end,” though, after deciding that

the unconstitutional-conditions test applied, the court concluded that it was not required to apply

the test, because Metro waived any argument as to its application in that case, expressly

abandoning any defense under Nollan’s test. Id. at 836. In other words, the Ordinance was deemed

to have failed the Nollan test and, therefore, to be unconstitutional as applied to the plaintiffs. The

court remanded, however, for this court to fashion an appropriate remedy. Id. at 837.

This court was not required to determine a remedy, however. Following remand, the Knight

parties reached a settlement that included entry of a permanent injunction pursuant to which Metro

ceased prospective enforcement of Metro. Code § 17.20.120 and removed all language from its

website that referenced Metro. Code § 17.20.120 or its operative terms. See Agreed Order for Entry

of Judgment, Exhibit 1, Knight v. Metro. Gov’t, No. 3:20-cv-00922 (M.D. Tenn. Sept. 22, 2023),

ECF No. 56.

Sometime in June 2023, shortly after the Sixth Circuit’s decision in Knight, Metro created

a website through which other entities and individuals who had complied with the Sidewalk

Ordinance by building sidewalks or contributing to the Fund could seek reimbursement of their

costs (the “Metro Sidewalk Claim Process”). On the Metro Sidewalk Claim Process website, Metro

initially agreed to “consider[] for potential reimbursement” claims “where (1) the claimed costs

were incurred on or after May 10, 2022, and (2) the claimant sought a variance from the Board of

Zoning Appeals or paid under protest.” (Doc. No. 41-2 at 1, Metro Sidewalk Claim Process website

application in effect as of November 2023; see also SAC ¶ 70 (misquoting Metro Sidewalk Claim

Process website).) Metro paid claims that it deemed in compliance with the claims criteria. (SAC

¶ 72.) These criteria remained visible to the public on the Metro Claim Process website until around

November 16, 2023. (Id. ¶ 75.)

On or around November 16, 2023, however, Metro removed the language from its website

stating that it would consider reimbursement of claims for costs incurred on or after May 10, 2022

and determined that it would instead subject all reimbursement claims to a one-year statute of

limitations. (Id. ¶¶ 76–77.) According to the SAC, the plaintiffs and other putative class members

“could and did view the Metro Sidewalk Claim Process Website” prior to November 16, 2023 and

that they “relied on the May 10, 2022 date published to the Metro Claim Process Website, filing

claims, both denied and granted, for costs incurred on or after May 10, 2022.” (Id. ¶ 74.) “Similarly,

many chose to forego the filing of claims based on the understanding that Metro would not pay

them because they fell outside one of these two criteria.” (Id. ¶ 74.) However, as of November 16,

2023, Metro “unilaterally and without warning determined that it would apply a strict one-year

statute [of limitations] to claims going forward.” (Id. ¶ 77.)

In any event, all of the named plaintiffs in this case allege that they either paid in-lieu fees

or constructed sidewalks in order to receive building permits authorizing them to develop certain

properties within Metro Nashville; that Metro did in fact issue building permits; and that Metro

eventually issued final use and occupancy (“U&O”) letters with respect to those properties. In

Count I of the SAC, the plaintiffs claim that Metro’s conditioning the issuance of building permits

on the plaintiffs’ building a sidewalk or paying a fee in lieu of building a sidewalk constitutes an

unconstitutional taking. (SAC ¶ 182.)1

In addition, the plaintiffs allege that Metro has not “allocated” all of the plaintiffs’

payments into the Fund, as required by the Sidewalk Ordinance; that Metro does not “track the

properties for which in-lieu fees were paid to determine whether and to what extent they were

allocated”; that Metro has ceased allocating the Sidewalk Funds and has used such funds to

reimburse claims made pursuant to the Sidewalk Claim Process; that, in making such payments,

Metro has “diminished, reduced, or eliminated the unallocated funds that belong to Plaintiffs and

the members of the Permit Applicant Due Process Class, depriving them of their property”; that

1 The SAC also asserts that Metro’s requirement that the plaintiffs grant an easement as a

condition for issuing a building permit constituted an unconstitutional taking. (SAC ¶¶ 181–82.)

Metro does not provide a procedure for seeking a refund of unallocated funds; and, therefore, that

the plaintiffs and putative class members have been deprived of their property without due process.

(Id. ¶¶ 196–204.)

B. The Motion for Summary Judgment

Metro now seeks summary judgment on the named plaintiffs’ remaining claims. It raises

the following arguments:

(1) Infinium lacks standing to bring any claims in this lawsuit, because it did not

own any of the properties at issue and the fees it paid were immediately reimbursed

by the property owners;

(2) all of Ascent’s and Jean Lafitte’s claims are unripe, because they never sought

or received a final decision from Metro as to the application of the Sidewalk

Ordinance to their specific properties;

(3) alternatively, Ascent’s and Jean Lafitte’s takings claims are barred by the

doctrine of voluntary payment;

(4) also alternatively, most of Ascent’s and Jean Lafitte’s takings claims are barred

by the one-year statute of limitations, and all of Selman’s claims, though ripe, are

time-barred, and the plaintiffs cannot show that the statute of limitations should be

extended by the doctrine of equitable estoppel or otherwise; and

(5) the plaintiffs’ due process claims fail, because they cannot show arbitrary and

capricious government action, for purposes of a substantive due process claim, and

they have not shown a “present entitlement to any future, potential refunds of their

paid in-lieu fees which are contingent upon several factors,” for purposes of a

procedural due process claim (Doc. No. 111 at 2).

(See generally Doc. No. 111.)

In their Response, the plaintiffs make several concessions or clarifications. First, they

concede that Infinium, because it did not own the properties at issue, lacks standing to bring a

takings claim, though they continue to argue that Infinium has standing to bring a due process

claim. (Doc. No. 123 at 13.2) Second, they make it clear that plaintiff Selman did not intend to

state a due process claim. (Id. at 14.) And third, they agree that none of the named plaintiffs entered

into an easement or dedicated a right-of-way to Metro. (Id.) They also do not seek to advance

claims that would only be timely under their continuing violations theory, and they confirm that

they bring a procedural due process claim, not a substantive due process claim.3 They raise the

following arguments in opposition to summary judgment:

(1) the court should deny the Motion for Summary Judgment in its entirety, without

prejudice, until after class certification and class notice, based on the rule against

one-way intervention;

(2) the plaintiffs were not required to pursue administrative exhaustion of their

claims, and their claims became ripe for adjudication as soon as the plaintiffs

complied with the Ordinance;

(3) in any event, there is no prudential finality requirement for “facial challenges,

like Plaintiffs’ challenge here” (id. at 20);

(4) administrative exhaustion would not have satisfied Nollan and Dolan;

(5) alternatively, any ripeness requirement is satisfied by the issuance of U&O

letters, following which the plaintiffs had no mechanism for pursuing a waiver or

variance;

(6) Metro bears the burden of establishing voluntary payment, which it cannot do

in this case;

(7) not all claims are barred by the statute of limitations, first, because the

limitations period for all of the plaintiffs’ claims—including Jean Lafitte’s and

Selman’s, even though they did not join the lawsuit until January 2025—began

2 Inexplicably, the plaintiffs did not number the first page of their Response in Opposition,

as a result of which their pagination is inconsistent with that assigned by the court’s electronic

filing system. The court uses the CM/ECF pagination.

3 The court previously granted in part Metro’s Motion for Partial Judgment on the

Pleadings, holding, as relevant here, that the statute of limitations for the plaintiffs’ claims was not

extended by the “continuing violations” doctrine. Infinium Builders LLC v. Metro. Gov’t, No. 3:23-

CV-00924, 2024 WL 4009874, at *8 (M.D. Tenn. Aug. 30, 2024). The plaintiffs have preserved

their objections to that ruling for purposes of appeal but do not seek to relitigate claims that are

clearly time-barred, absent application of the continuing violations doctrine. (See Doc. No. 123 at

10 n.5.)

running on August 30, 2022 (or one year prior to the filing of the original Class

Action Complaint); second, because the plaintiffs’ claims accrued on the date

Metro issued U&O letters for the specific properties; and third, because Metro is

equitably estopped from applying a limitations period different from the May 10,

2022 accrual date first identified on its Claim Process Website; and

(8) Metro is not entitled to summary judgment on the due process claim, because

the Ordinance created an entitlement, requiring Metro to return the “specific funds”

the plaintiffs paid into the Sidewalk Fund “if they are not used in accordance with

the Ordinance,” and Metro has interfered with their property interest by “us[ing]

those funds for other, unauthorized purposes.” (Id. at 33–34.)

In its Reply, Metro pounces on the plaintiffs’ characterization of their takings claim as a

facial challenge to the Sidewalk Ordinance as part of their argument for why exhaustion of

administrative remedies was not required. Metro argues that, if indeed the plaintiffs intended to

assert a facial challenge—which is not at all clear in the pleadings—then the claim accrued upon

the passage of the Ordinance, making all of the plaintiffs’ claims barred by the one-year statute of

limitations. (Doc. No. 127 at 1.) The plaintiffs’ Sur-reply addresses only Metro’s contention that

their facial challenge to the Sidewalk Ordinance is time-barred, arguing both that it is not time-

barred and that they also raise and have never abandoned their as-applied challenge to the Sidewalk

Ordinance. (Doc. No. 134.) They suggest, in fact, that a challenge to an “inherently contingent”

legislative exaction such as the one at issue here must be brought as an as-applied challenge. (Id.

at 3.)4

III. DISCUSSION

A. The Rule Against One-Way Intervention

Class actions are governed by Federal Rule of Civil Procedure 23. It is widely recognized

that Rule 23 is both “intended to accommodate lawsuits to vindicate shared rights of widely-

4 In light of the plaintiffs’ position in their Sur-reply and the fact that the SAC does not

characterize the claim as a facial challenge, the court construes the plaintiffs’ challenge to the

Sidewalk Ordinance an as-applied challenge.

dispersed individuals where joinder of all the interested parties would be impractical” and to

provide “the full exoneration of those found innocent of alleged violations of collective rights.” In

re Forson, 583 B.R. 704, 709 (Bankr. S.D. Ohio 2018) (citation omitted). To achieve both of these

goals—complete vindication of meritorious group claims and the complete exoneration of falsely

accused defendants—“Rule 23 . . . requires both plaintiff class members (whether or not personally

participating in the class action) and defendants to be bound by judgments on class claims.” Id.

(citation omitted). The class procedure thus protects the “interests of absentee class members and

defendants” and “promote[s] judicial economy and efficiency by avoiding multiple adjudications

of the same issues.” Id. (quoting 5 Moore’s Federal Practice ¶¶ 23.023, 23.02 (3d ed. 2017)).

Rule 23 provides that, “[a]t an early practicable time after a person sues or is sued as a class

representative, the court must determine by order whether to certify the action as a class action.”

Fed. R. Civ. P. 23(c)(1)(A). Usually, therefore, “courts decide class certification motions before

addressing dispositive motions.” Forson, 583 B.R. at 710 (quoting Hyman v. First Union Corp.,

982 F. Supp. 8, 11 (D.D.C. 1997)). At the same time, “the timing provision of Rule 23 is not

absolute. Under the proper circumstances—where it is more practicable to do so and where the

parties will not suffer significant prejudice—the district court has discretion to rule on a motion

for summary judgment before it decides the certification issue.” Id. (quoting Wright v. Schock, 742

F.2d 541, 543–44 (9th Cir. 1984)).

In other words, while Rule 23 favors early determination of the class issue, neither the rule

nor due process “necessarily requires that the district court rule on class certification before

[addressing] a motion for summary judgment.” Id. (quoting Thompson v. Cnty. of Medina, 29 F.3d

238, 241 (6th Cir. 1994)). Generally, where “considerations of fairness and economy dictate

otherwise, and where the defendant consents to the procedure, it is within the discretion of the

district court to decide the motion for summary judgment first.” Id. (quoting Thompson, 29 F.3d

at 241); see also Taylor v. City of Saginaw, 11 F.4th 483, 489 n.3 (6th Cir. 2021) (finding it “within

the district court’s discretion to resolve defendants’ dispositive motion prior to class

certification”); Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 616 (6th Cir. 2002)

(“We have consistently held that a district court is not required to rule on a motion for class

certification before ruling on the merits of the case.” (citations omitted)).

One of the primary problems that arises when the court addresses a dispositive motion

before a class certification motion is that of “one-way intervention.” Forson, 583 B.R. at 710

(quoting Hyman, 982 F. Supp. at 11). “One-way-intervention” means that putative class members

have the ability to sit on the sidelines and watch how a case is resolved, before opting into a class

and without risking their individual claims. See id. In other words, defendants are “the risk-bearers

in this situation,” and the question of whether the court may resolve a summary judgment motion

before ruling on class certification typically depends on whether the defendants have waived the

right to have the certification motions decided first. See id. (quoting Hyman, 982 F. Supp. at 11).

As the Sixth Circuit has stated:

Here’s the general rule: When the defendant moves for and obtains summary

judgment before the class has been properly notified, the defendant waives the right

to have notice sent to the class, and the district court’s decision binds only the

named plaintiffs. “In such a situation, the defendants . . . assume the risk that a

judgment in their favor will not protect them from subsequent suits by other

potential class members, for only the slender reed of stare decisis stands between

them and the prospective onrush of litigants.”

Faber v. Ciox Health, LLC, 944 F.3d 593, 602–03 (6th Cir. 2019) (quoting Schwarzschild v. Tse,

69 F.3d 293, 297 (9th Cir. 1995)) (citation modified)).

Here, the plaintiffs invoke the one-way intervention rule while also recognizing that the

rule is primarily intended to protect defendants. The plaintiffs argue that ruling on the defendant’s

summary judgment motion now gives rise to the potential for protracted litigation if the defendant

later claims that a ruling on its summary judgment violated the rule against one-way intervention.

This fear is entirely speculative. The defendant is the party moving for summary judgment and has

clearly waived its right to have class certification decided first. Moreover, the court finds that

resolution of the Motion for Summary Judgment will have the benefit of substantially narrowing

the issues to be resolved, even if a class is ultimately certified. The court, therefore, will exercise

its discretion to rule on the Motion for Summary Judgment now, rather than deferring it until after

resolution of any class certification motion.

B. The Takings Claim

1. Ripeness

Generally, “a takings claim challenging the application of land-use regulations is not

ripe”—has not accrued—“unless ‘the government entity charged with implementing the

regulations has reached a final decision regarding the application of the regulations to the property

at issue.’” Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001) (quoting Williamson Cnty. Reg’l

Plan. Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985), overruled on other grounds by Knick

v. Twp. of Scott, 588 U.S. 180 (2019)). Although Knick overruled Williamson County’s state-court-

exhaustion requirement, the Supreme Court has recognized that Knick “left untouched Williamson

County’s alternative holding that plaintiffs may challenge only ‘final’ government decisions.”

Pakdel v. City of San Francisco, 594 U.S. 474, 477 (2021) (citing Knick, 588 U.S. at 188). Courts

considering the issue post-Knick have likewise continued to hold that “[a]s-applied takings and

substantive due process claims are not ripe until a plaintiff receives a final decision regarding the

application of the regulations to the property at issue.” Ballard v. City of W. Hollywood, No. 24-

538, 2025 WL 618110, at *1 (9th Cir. Feb. 26, 2025) (citing Williamson Cnty., 473 U.S. at 186);

accord SW Nashville EB Owner, LLC v. Metro. Gov’t, No. 3:24-cv-00710, 2025 WL 875366, at

*9 (M.D. Tenn. Mar. 20, 2025) (collecting cases).5

“The finality requirement is relatively modest. All a plaintiff must show is that ‘there [is]

no question . . . about how the regulations at issue apply to the particular land in question.’” Pakdel,

594 U.S. at 478 (quoting Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. at 739) (some internal

quotation marks omitted). Indeed, “[t]he rationales for the finality requirement underscore that

nothing more than de facto finality is necessary. This requirement ensures that a plaintiff has

actually ‘been injured by the Government’s action’ and is not prematurely suing over a

hypothetical harm.” Id. (quoting Horne v. Dep’t of Agric., 569 U.S. 513, 525 (2013)). Although

the Sixth Circuit, unlike some other circuits, applies the “finality” test “to both regulatory and

physical takings claims, courts have further sculpted the ripeness doctrine to fit the type of takings

claim involved.” Barber v. Charter Twp. of Springfield, 31 F.4th 382, 388 (6th Cir. 2022) (internal

quotation marks and citations omitted).6

5 The finality requirement does not apply to facial challenges to regulations. Wilkins v.

Daniels, 744 F.3d 409, 417 (6th Cir. 2014). As noted above, the court considers the plaintiffs’

takings claim to be an as-applied challenge.

6 The Ninth Circuit has held that “Williamson County applies only to regulatory, not per

se, takings.” Fowler v. Guerin, 899 F.3d 1112, 1117 (9th Cir. 2018). A decision from the District

of Oregon with a fact pattern closely analogous to the one here recently held, based on Fowler,

that the plaintiffs were not required to pursue an administrative appeal to satisfy the finality

requirement. Newberg Crestview, LLC v. City of Newberg, No. 3:22-CV-1289-AR, 2023 WL

8372167, at *5 (D. Or. Dec. 4, 2023). In that case, the plaintiff’s request for approval of a

development project was conditioned on the plaintiff’s making public infrastructure improvements

near its property, including, among other things, building sidewalks. The plaintiff brought a takings

claim, and the city moved for dismissal on the basis that the claim was unripe because the plaintiff

had not alleged a final decision and had not followed proper appeal procedures. Id. at *1, 3. The

court rejected that argument, characterizing the takings claim as a “land-use exaction claim” and

defining “land-use exaction” as occurring “when government demands property in exchange for

approval of a land-use permit.” Id. at *4. In other words, land-use exaction claims are those

governed by Nollan and Dolan, as extended by Koontz v. St. Johns River Water Management

District, 570 U.S. 595 (2013). The Oregon District Court stated, “Williamson County’s finality

requirement does not apply to land-use exaction claims. . . . The finality requirement ‘developed

However, as Barber explained, in a case involving a physical taking, “the taking itself is

viewed as a final action.” Id. In this case, the plaintiffs achieved finality when they were assessed

a fee in exchange for a building permit, paid the fee, and were issued a building permit. The time

to appeal has expired, and the record strongly suggests that appeals would have been largely futile

anyway, except under the narrow circumstances described by the Ordinance. See Metro. Code §

17.20.120(A)(3). More to the point, the plaintiffs are not awaiting a decision, and “there [is] no

question . . . about how the ‘regulations at issue apply to the particular land in question.’” Pakdel,

594 U.S. at 478 (quoting Suitum, 520 U.S. at 739). No avenue remains open for the government to

clarify or change its position. Upon paying into the Sidewalk Fund to satisfy a condition for

obtaining a building permit, each plaintiff was actually “injured by the Government’s action and

in the regulatory taking context,’ and has not been extended to other types of takings.” Newberg ,

2023 WL 8372167, at *4 (quoting Suitum, 520 U.S. at 733 n.6; and then citing Pakdel, 594 U.S.

at 475 (“When a plaintiff alleges a regulatory taking in violation of the Fifth Amendment, a federal

court should not consider the claim before the government has reached a ‘final’ decision.”)). As

the court explained:

Indeed, the justification for the finality requirement is only applicable in the context of

regulatory takings. The requirement “follows from the principle that only a regulation that

‘goes too far’ results in a taking.” Suitum, 520 U.S. at 734 (citation omitted). “A court

cannot determine whether a regulation has gone ‘too far’ unless it knows how far the

regulation goes.” Id. The factors that a court must examine in a regulatory takings case,

including economic impact and interference with reasonable investment-backed

expectations, “simply cannot be evaluated until the administrative agency has arrived at a

final, definitive position regarding how it will apply the regulations at issue to the particular

land in question.” Williamson County, 473 U.S. at 191.

That reasoning does not apply to land-use exaction claims, which are not based on broadly

applicable regulations that “go[] too far” and do not entail the same fact-intensive inquiry

as do regulatory takings claims. See Koontz, 570 U.S. at 614 (distinguishing between “Penn

Central’s essentially ad hoc, factual inquiry” and “the per se takings approach” used in

exaction cases).

Id. at *5. This court would be inclined to agree, but the Sixth Circuit, as noted above, continues to

apply Williamson County to land-use exaction claims as well as to regulatory takings claims.

is not prematurely suing over a hypothetical harm.” Pakdel, 594 U.S. at 478 (internal quotation

marks and citation omitted).

The situation here is entirely unlike that in SW Nashville, for example, in which the plaintiff

sought to challenge Metro’s failure to issue a building permit, and this court dismissed the case as

unripe. SW Nashville, 2025 WL 875366, at *1. There, Metro had not yet made a decision and had

instead placed the permit application on hold, pending a roadway assessment and a determination

of whether an anticipated new roadway would impact the plaintiff’s property. Thus, at the time the

plaintiff filed suit, “it remain[ed] entirely unclear whether Metro [would] . . . deny the plaintiff’s

Application and institute condemnation proceedings or, instead, resituate the projected roadway

and grant the Application.” Id. at *12. The court dismissed without prejudice the takings claims

under federal and state law on ripeness grounds. Id.

Nor does this case resemble any of those cited by the defendant. In Andrews, for example,

the Sixth Circuit reversed the district court’s decision dismissing the plaintiff trust’s takings claim,

which stemmed from the defendant city’s denial of the trust’s rezoning application. Andrews, 11

F.4th at 465–66. The question at issue on appeal was whether “the discretionary nature of City’s

denial of the Trust’s application for rezoning of its property . . . deprives the Trust of a cognizable

property interest to challenge the current . . . zoning of its property for takings purposes.” Id. at

470. The Sixth Circuit found a cognizable property interest and observed in passing only that “a

plaintiff’s failure to seek discretionary allowance for an otherwise proscribed use of their

property—say, through a permit or application for a variance—will often doom their takings claim

as unripe.” Id. at 469. But it did not reach the ripeness question in that case, and Metro has not

pointed to any cases with facts similar to those here dismissing takings claims as unripe.

The court also pauses to recognize the distinction between prudential and jurisdictional

ripeness. “If a case is ‘dependent on contingent future events that may not occur as anticipated, or

indeed may not occur at all,’ it is not constitutionally ripe.” Carman v. Yellen, 112 F.4th 386, 400

(6th Cir. 2024) (quoting Trump v. New York, 592 U.S. 125, 131 (2020) (per curiam)) (some internal

quotation marks omitted). Prudential ripeness, on the other hand, “is concerned with (1) whether

a claim is fit for judicial review; and (2) the hardship to the parties.” Id. at 401 (citing Kiser v.

Reitz, 765 F.3d 601, 607 & n.2 (6th Cir. 2014)). The finality requirement is a prudential rather than

jurisdictional consideration and is not applied “mechanistically.” Lilly Invs. v. City of Rochester,

674 F. App’x 523, 526 (6th Cir. 2017). Moreover, application of the prudential ripeness doctrine

“requires that the court exercise its discretion to determine if judicial resolution would be desirable

under all of the circumstances.” Jackson v. City of Cleveland, 925 F.3d 793, 807 (6th Cir. 2019)

(internal quotation marks and citation omitted). Here, there is no reason to withhold judicial

resolution. As set forth above, the plaintiffs need only demonstrate that Metro has “reached a final

decision regarding the application of the regulation to the property at issue.” Id. (quoting

Williamson Cnty., 473 U.S. at 186). Applying this standard, the court finds that the plaintiffs’

takings claims are ripe.

2. The Voluntary Payment Doctrine

Metro also argues that the plaintiffs’ takings claims fail, because each of them (with certain

exceptions not relevant here) voluntarily complied with the Sidewalk Ordinance without protesting

or objecting. This argument—which is conceptually related to Metro’s ripeness argument—posits

that a plaintiff cannot show that “he or she has been compelled to hand over property unless and

until the government decides whether its law or regulation will be applied to [the] property.” (Doc.

No. 111 at 12 (citing Palazzolo, 533 U.S. at 620–21).) The cases Metro cites for the proposition

that a plaintiff’s “voluntary surrender of property to the government” bars a takings claim largely

involve due process claims decided in the context of plaintiffs’ voluntary payment of fines for civil

or criminal infractions. (See id. at 13 (citing, e.g., Gradisher v. Cnty. of Muskegon, 255 F. Supp.

2d 720, 728 (W.D. Mich. 2003), aff’d, 108 F. App’x 388 (6th Cir. 2004); Evans v. City of Ann

Arbor, No. 21-10575, 2022 WL 586753, at *10 (E.D. Mich. Feb. 25, 2022), aff’d, No. 22-1774,

2023 WL 5146731 (6th Cir. Aug. 10, 2023)).) None of the cited cases involves the

unconstitutional-conditions doctrine. The court finds that they are of little relevance to the issue

presented here.

Moreover, voluntary payment is an affirmative defense on which the burden of proof rests

with the party asserting it. U.S. Small Bus. Admin. v. McDonald, 772 F.2d 909 (6th Cir. 1985);

Pratt v. Smart Corp., 968 S.W.2d 868, 872 (Tenn. Ct. App. 1997). Under Tennessee law, the

defense “is not universally applicable to all transactions” and, in particular, “does not come into

play in situations involving a transaction that violates public policy.” Pratt, 968 S.W.2d at 872.

Here, the mere fact that the plaintiffs paid the in-lieu fee in order to obtain a building permit,

without formally protesting or objecting, does not establish the elements of voluntary payment. In

addition, an unconstitutional condition is arguably, by its nature, coercive and violative of public

policy. The court will not apply the voluntary payment doctrine in this setting. Accord Heritage at

Pompano Hous. Partners, L.P. v. City of Pompano Beach, No. 20-61530-CIV, 2021 WL 8875658,

at *7 (S.D. Fla. Dec. 15, 2021) (denying defendant’s motion for summary judgment on

“acquiescence” grounds in an unconstitutional-conditions case)

3. Statute of Limitations

The remaining question is which, if any, of the alleged takings fall within the applicable

statute of limitations. The plaintiffs have effectively conceded that takings claims related to a

number of their properties, as identified in discovery and enumerated by Metro in support of its

motion, would be time-barred under any metric. No further discussion of those properties is

necessary. Likewise, Metro concedes for purposes of summary judgment that, if the claims are not

barred by ripeness and voluntary payment, Ascent has takings claims relating to the payment of

the in-lieu fee for five properties that would not be time-barred: (1) 1407 Harding Place; (2) 3998

Harding Place; (3) 4000 Harding Place; (4) 796 Montrose Avenue; and (5) 2509 Vaulx Lane.

Metro’s motion will be denied with respect to these properties without further discussion.

The parties dispute whether a number of other claims would be time-barred, including:

(1) property owned by Ascent located at 1323 Harding Place;

(2) property owned by Lafitte located at 6205 Freedom Drive, 6207 Freedom Drive,

646A Vernon Avenue, and 646B Vernong Avenue; and

(3) property owned by Selman located at 2838 A Bronte Avenue and 2838B Bronte

Avenue.

Regarding 1323 Harding Place, it is undisputed that Ascent paid the in-lieu fee on June 14,

2022, and Metro issued the U&O Letter on September 19, 2023. Lafitte paid the in-lieu fees for

its four properties in 2021 (the Freedom Drive properties) and 2023 (the Vernon Avenue

properties), and Metro issued U&O Letters for these parcels in June 2023 and March 2023,

respectively.

For his two properties, Selman actually built sidewalks, which were completed in April

2023 and for which U&O Letters were issued in 2023. However, Selman sought a waiver from the

Sidewalk Ordinance prior to building the sidewalks. It is undisputed that Metro’s final decision

denying the request for a waiver was issued on April 26, 2022, and Selman’s building permit issued

shortly thereafter. (See Doc. No. 110-1 at 94–98.)

Metro asserts that, for any of Ascent’s claims to be timely, they must have accrued no later

than August 30, 2022, or one year before Ascent filed suit, and that, for Lafitte’s and Selman’s

claims to be timely, they must have accrued no later than January 27, 2024, or one year before the

filing of the SAC joining them as plaintiffs. (Doc. No. 111 at 14–15.) It also asserts that Selman’s

claims accrued, at the latest, on the date Metro issued its final decision regarding a waiver. For

Ascent and Lafitte, Metro’s position is that the claims accrued on the date they paid the in-lieu

fees. By Metro’s calculations, all of the above-referenced disputed claims are untimely.

The plaintiffs argue first that, with respect to all of these properties, the running of the

statute of limitations is tolled by equitable estoppel, as a result of Metro’s posting on the Sidewalk

Claim Process Form that it would consider claims for costs incurred on or after May 10, 2022.

Second, the plaintiffs contend that, if equitable estoppel does not apply, then their claims are timely

so long as they accrued within one year before the filing of the original Complaint, because Lafitte

and Selman both benefit from tolling under the doctrine announced in American Pipe &

Construction Co. v. Utah, 414 U.S. 538, 554 (1974). The plaintiffs also contend that their claims

did not accrue, and the limitations period did not begin to run, until Metro issued a U&O Letter

for each property, as “[t]hat is when Metro determined that Plaintiffs and other property owners

had complied with the Sidewalk Ordinance and the sidewalk was approved for public use.” (Doc.

No. 123 at 31.) Based on these arguments, the plaintiffs’ disputed claims would all be timely.

As set forth below, the court finds that the plaintiffs cannot establish that equitable estoppel

applies, but Lafitte and Selman are entitled to American Pipe tolling. However, the claims accrued

upon the takings, not the issuance of the U&O Letters.

a) Equitable Estoppel

“When the doctrine of equitable estoppel is applicable, it prevents a defendant from

asserting what could be an otherwise valid statute of limitations defense.” Redwing v. Cath.

Bishop, 363 S.W.3d 436, 460 (Tenn. 2012) (citation omitted). The party invoking the doctrine has

the burden of proof. Id. When properly asserted and applicable, equitable estoppel “tolls the

running of the statute of limitations when the defendant has misled the plaintiff into failing to file

suit within the statutory limitations period.” Id. (citing Fahrner v. SW Mfg., Inc., 48 S.W.3d 141,

145 (Tenn. 2001)). As the Tennessee Supreme Court has further explained,

whenever a defendant has made out a prima facie statute of limitations defense, the

plaintiff must demonstrate that the defendant induced him or her to put off filing

suit by identifying specific promises, inducements, suggestions, representations,

assurances, or other similar conduct by the defendant that the defendant knew, or

reasonably should have known, would induce the plaintiff to delay filing suit.

Id. That is, the doctrine “applies only when the defendant engages in misconduct.” Id. (citing B &

B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 849 (Tenn. 2010)). “The focus

of an equitable estoppel inquiry ‘is on the defendant’s conduct and the reasonableness of the

plaintiff’s reliance on that conduct.’” Id. at 461 (quoting Hardcastle v. Harris, 170 S.W.3d 67, 85

(Tenn. Ct. App. 2004)).

Examples of situations in which courts have equitably estopped defendants from asserting

a statute of limitations defense include when a defendant “promises not to assert a statute of

limitations,” “promises to pay . . . the plaintiff’s claim without requiring the plaintiff to file suit,”

or “promises to settle a claim without litigation following the conclusion of another proceeding

between the defendant and a third party.” Id. at 460–61 (citations and footnotes omitted).

In this case, Metro posted a website some time in June 2023, within a month after Knight

was issued, in which it initially agreed to “consider[] for potential reimbursement” claims

submitted through the website that met two criteria: “(1) the claimed costs were incurred on or

after May 10, 2022, and (2) the claimant sought a variance from the Board of Zoning Appeals or

paid under protest.” (Doc. No. 41-2 at 1, Metro Sidewalk Claim Process website application in

effect as of November 2023.) Around November 16, 2023 (i.e., several months after this lawsuit

was filed), Metro replaced the first criterion with language stating that it would consider

reimbursement of claims for costs incurred within one year prior to submission of the claim. (SAC

¶¶ 76–78.) The website did not promise payment of any claims—it promised only to consider

claims that met the stated criteria.

Notably, although the plaintiffs allege that Infinium submitted claims through the Metro

Sidewalk Claim Process website (see SAC ¶ 80), none of the other plaintiffs are alleged to have

submitted claims prior to filing this lawsuit. Instead, they state that “those [named plaintiffs and

putative class members] who intended to assert claims as part of the Metro Claim Process, but did

not prior to Metro’s unilateral change to the criteria, will now have any claim for costs incurred

between May 10, 2022, and August 30, 2022, denied by Metro as untimely.” (Id.) Thus, for

example, Ascent “paid in lieu sidewalk fees for property between May 10, 2022 and August 30,

2022, which Metro might have approved but which would now be denied as untimely.” (Id.)

Of course, if a claimant submitted a timely claim through the website that met Metro’s

criteria, and Metro delayed payment of the claim and then denied it after the limitations period for

filing suit had expired, such a claimant would arguably have a colorable basis for asserting that

the limitations period should be tolled through equitable estoppel. But none of the plaintiffs here

(aside from Infinium, whose claims will be dismissed for lack of standing) submitted timely

claims. And the website, standing alone, did not constitute a promise to pay claims at all, much

less a promise to pay them without litigation or a promise to waive the statute of limitations. On

its face, the website stated that Metro would “consider” claims submitted using the established

procedure that met the criteria identified on the website. Any claimant who delayed filing a

potentially meritorious claim in reliance on the website cannot be deemed to have behaved

reasonably. And claimants who knew that they did not meet the identified criteria were

immediately put on notice that they would have to follow some other procedure to pursue their

claims. Moreover, although the plaintiffs allege in the SAC that Metro might have approved

Ascent’s claims if they had been submitted through the Sidewalk Claim Process website, they do

present any proof that Ascent relied on the website or that Ascent met both criteria identified on

the website.

More importantly, Metro’s initial decision to extend the limitations period following

Knight and its later decision to begin relying on a one-year limitations period beginning

approximately six months after Knight was issued cannot be characterized as “misconduct,” and

nothing about the Metro Sidewalk Claim Process website was misleading. The website did not

remotely imply—much less promise—that lawsuits to recover sidewalk fees would be subject to

the same criteria. The fact that the Claim Process apparently relied on legal principles

(finality/ripeness and voluntary payment) that this court has now rejected does not change that

conclusion. The plaintiffs have not presented any facts that justify application of equitable estoppel

to toll the statute of limitations.

b) American Pipe Tolling

In American Pipe, the Supreme Court held that motions to intervene filed by putative class

members shortly after class certification was denied were timely, because “the commencement of

the original class suit tolls the running of the statute [of limitations] for all purported members of

the class who make timely motions to intervene after the court has found the suit inappropriate for

class action status.” Am. Pipe, 414 U.S. at 553. This concept is now known as American Pipe

tolling. The Supreme Court subsequently extended American Pipe tolling to class members who

opt out, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 n.13 (1974), and to plaintiffs who file

separate actions after the denial of class certification, Crown, Cork & Seal Co. v. Parker, 462 U.S.

345 (1983).

The Second, Third, Ninth, and Tenth Circuits have held that American Pipe tolls the

limitations period for individual claims filed both before and after the certification stage—that is,

that presumptive class members are not required to wait for a ruling on class certification before

opting to file their own individual lawsuit. See Aly v. Valeant Pharms. Int’l Inc., 1 F.4th 168, 180

(3d Cir. 2021); In re Hanford Nuclear Rsrv. Litig., 534 F.3d 986, 1009 (9th Cir. 2008); State Farm

Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1228 (10th Cir. 2008); In re Worldcom Sec.

Litig., 496 F.3d 245, 255 (2d Cir. 2007) (“Nothing in the Supreme Court decisions . . . suggests

that the rule should be otherwise for a plaintiff who files an individual action before certification

is resolved. To the contrary, the Supreme Court has repeatedly stated that ‘the commencement of

a class action suspends the applicable statute of limitations as to all asserted members of the class

who would have been parties had the suit been permitted to continue as a class action.’” (quoting

Crown, 462 U.S. at 353–54) (some internal quotation marks omitted)).

The Sixth Circuit alone7 has expressly held, to the contrary, that plaintiffs who file

independent actions before a decision on class certification in the initial class action forfeit

American Pipe tolling. Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d

780, 791 (2016) (citing Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 568 (6th Cir.

2005)). Although the court in Stein recognized that Wyser-Pratte “now represents the minority

rule” and expressed “doubts about its holding,” it also recognized that Wyser-Pratte “remain[ed]

controlling.” Id. at 789.

In this case, Metro, without referencing American Pipe, Stein, or Wyser-Pratte, asserts that,

to be timely, any claims brought by Lafitte and Selman must have accrued within one year prior

to January 27, 2025, when the SAC identifying them as plaintiffs was filed. Relying on American

Pipe, the plaintiffs respond that, as “members of the classes” pleaded in the original Complaint,

7 The First Circuit has stated in dicta that the “policies behind Rule 23 and American Pipe

would not be served, and in fact would be disserved, by guaranteeing a separate suit at the same

time that a class action is ongoing.” Glater v. Eli Lilly Co., 712 F.2d 735, 739 (1st Cir. 1983).

Lafitte and Selman “get the benefit of tolling as of the date of that filing.” (Doc. No. 123 at 30

(citing Am. Pipe, 414 U.S. at 554).) Metro replies that Lafitte’s and Selman’s claims are time-

barred under Stein, effectively conflating intervention with independent actions. (Doc. No. 127 at

2–3.)

Neither party addresses the (sparse) relevant caselaw pertaining to the addition of new

plaintiffs to a proposed class action prior to certification, as distinct from the filing of a separate

action by class members prior to certification. Those few district courts within the Sixth Circuit

faced with this issue have largely extended American Pipe to permit the proposed amendments,

but without addressing how Stein/Wyser-Pratt might impact the analysis. See, e.g., LaDrigue v.

City of Bay City, No. 1:19-CV-11196, 2022 WL 1205000, at *2 (E.D. Mich. Apr. 22, 2022)

(granting the plaintiff’s motion to amend to add a new class representative and holding that the

new plaintiff’s claims were timely, having been tolled under American Pipe when the original

complaint was filed (citing Phillips v. Ford Motor Co., 435 F.3d 785, 788 (7th Cir. 2006)); Smith

v. Leis, No. 1:08-CV-00234, 2009 WL 1687945, at *2 (S.D. Ohio June 12, 2009) (same); Bromley

v. Mich. Educ. Ass’n-NEA, 178 F.R.D. 148, 158 (E.D. Mich. 1998) (same).

The question, then, is whether the Sixth Circuit would treat intervening plaintiffs the same

way it has treated plaintiffs filing a wholly separate action. At least one opinion from the Seventh

Circuit suggests that it might not. Notably, in Phillips v. Ford Motor Co., the named plaintiffs in

two putative class actions sought to add additional named plaintiffs to avoid the statute of

limitations. Phillips, 435 F.3d at 786. As a result, the Seventh Circuit addressed essentially the

same question presented here: “whether amending a complaint to add or substitute named plaintiffs

(class representatives) ‘commences’ a new suit.” Id.8 The Seventh Circuit noted that “[r]elation

back to add named plaintiffs in a class action suit is of particular importance because of the

interests of the unnamed members of the class.” Id. at 788. To illustrate this concern, the court

posed a hypothetical: “Suppose Mr. X files a class action and after the statute of limitations has

run the defendant settles with X. If a named plaintiff cannot be substituted for X with relation back

to the date of the filing of the original complaint, the class will be barred from relief.” Id. The

Seventh Circuit concluded that, because the new plaintiffs stated claims arising out of “the same

transaction or occurrence set up in the original pleading,” and because the filing of a class action

“tolls the statute of limitations for class members,” the addition of the new plaintiffs “did not

commence new suits.” Id.

In light of the dearth of authority on this question and the fact that the Sixth Circuit itself

has cast doubt on the continuing validity of Wyser-Pratt, the court finds that the appellate court

would not treat intervening plaintiffs the same way it has treated plaintiffs filing independent

actions. The court further holds that, because Lafitte and Selman did not commence new lawsuits

and instead were simply added to this one, they benefit from American Pipe tolling.

c) Accrual of the Claims

The statute of limitations for § 1983 claims is the relevant state’s statute of limitations for

personal injury torts. Beaver St. Invs., LLC v. Summit Cnty., 65 F.4th 822, 826 (6th Cir. 2023)

8 In Phillips, the Seventh Circuit was presented with two petitions for leave to appeal from

orders remanding two class action suits to Illinois state courts. The petitions were filed under the

Class Action Fairness Act of 2005, Pub. L. 109–2, 119 Stat. 4 (Feb. 18, 2005), and the question

they presented was “whether amending a complaint to add or substitute named plaintiffs (class

representatives) ‘commences’ a new suit” under the Act. Phillips, 435 F.3d at 786. Because the

suits were filed before the effective date of the Class Action Fairness Act but the amendments

were filed after it, “if the amendments are deemed to commence new suits, these suits are

removable to federal district court; otherwise not.” Id.

(citing Wallace v. Kato, 549 U.S. 384, 387 (2007)). There is no dispute that the one-year statute of

limitations in Tenn. Code Ann. § 28-3-104(a)(3) applies to civil rights claims arising in Tennessee.

Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015). Thus, because

equitable estoppel does not toll the limitations period, but Lafitte and Selman benefit from

American Pipe tolling, all of the plaintiffs’ claims, to be timely, must have accrued on or after

August 30, 2022, or one year before the original Complaint was filed.

So when did the claims accrue? As indicated above, the parties disagree on this question,

too. The plaintiffs suggest, without citing any authority, that the date on which their claims became

“final,” for ripeness purposes, is not necessarily the same date on which the claims accrued. (See

Doc. No. 123 at 30 (“Metro conflates its proposed finality/ripeness standard with the date a claim

accrued . . . .”).) The plaintiffs assert that the date on which Metro issued U&O Letters, thus

signifying that “property owners had complied with the Sidewalk Ordinance and the sidewalk was

approved for public use,” should be deemed the accrual date. (Id.)9 Alternatively, the plaintiffs

posit that their claims accrued on the date on which in-lieu fees were paid. (Id.)

Metro suggests that Selman’s claims related to his property on Bronte Avenue accrued on

April 26, 2022, the date on which the zoning administrator issued a final decision on Selman’s

application for a waiver. (Doc. No. 111 at 17.) It asserts that Ascent’s and Lafitte’s claims accrued

upon payment of the in-lieu fee.

Although the limitations period for § 1983 actions is borrowed from state law, federal law

governs when the limitations period begins to run. Wallace, 549 U.S. at 388; Beaver St. Invs., 65

9 Metro does not respond to the plaintiffs’ Statement of Additional Facts identifying the

significance of the U&O Letters, other than to state that these are not material facts. (See Doc. No.

128, Metro Resp. SAF ¶¶ 16–19.) The court therefore finds that these facts are not disputed for

purposes of summary judgment.

F.4th at 826. “The ‘standard rule’ is that the statute of limitations for § 1983 claims begins to run

when a ‘plaintiff has a complete and present cause of action . . . .’” Beaver St. Invs., 65 F.4th at826

(6th Cir. 2023) (quoting Wallace, 548 U.S. at 388) (alteration in original). A complete cause of

action arises “when the plaintiff knows or has reason to know of the injury which is the basis of

his action.” Id. (quoting Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 520 (6th Cir. 1997)).

To determine the date on which a § 1983 action accrues, courts look “to what event should have

alerted the typical lay person to protect his or her rights.” Id. (citation omitted).

For takings claims, a property owner has an actionable claim “when the government takes

his property without paying for it . . . and therefore may bring his claim in federal court under

§ 1983 at that time.” Knick, 588 U.S. at 185. That is, “‘the act of taking’ is the ‘event which gives

rise to the claim for compensation.’” Id. at 190 (quoting United States v. Dow, 357 U.S. 17, 22

(1958)).

Here, for the plaintiffs who paid the in-lieu fee to obtain a building permit and did not

appeal, the taking was complete upon payment of the fee to secure a building permit. At that time,

a “typical lay person” would have been alerted to the need “to protect his or her rights.” Beaver St.

Invs., 65 F.4th at 826. A taking had occurred, and the affected property owner could have filed suit

immediately, without waiting for a U&O Letter. This means that Ascent’s claim related to the

property at 1323 Harding Place, for which it paid the in-lieu fee on June 14, 2022, is time-barred.

Lafitte’s claims related to properties at 646A and 646B Vernon Avenue are not time-barred, as the

in-lieu fees were paid in February 2023, but its claims related to the Freedom Avenue properties

are time-barred, as the in-lieu fees were paid in 2021, well outside the one-year limitations period.

For Selman, who sought a waiver, his claims accrued either on the date on which his request

for a waiver was denied or when he acquiesced to that ruling and obtained a building permit,

because Metro’s decision was final—and Selman should have known that he needed to protect his

rights—at that time. The date on which the sidewalk construction was completed and approved is

merely incidental; Selman had no need to wait until the sidewalk construction on his property had

been completed to know that his rights had been violated. Because his request for a waiver was

denied in April 2022, and the building permit was issued in June 2022 (see Doc. No. 110-1 at 94–

98), his claims are clearly time-barred.

In sum, the court finds that several of Ascent’s and Lafitte’s claims may proceed, but Metro

is entitled to summary judgment on the plaintiffs’ time-barred takings claims.

C. The Due Process Claim

1. The Parties’ Positions

As set forth above, the Sidewalk Ordinance requires that Metro use in-lieu fees paid by

permit applicants in accordance with the Ordinance within ten years of receipt or return the

payment to the property owner. The relevant provision states in full:

Any such contributions [to the fund for the pedestrian benefit zone in lieu of

construction] received by the metropolitan government shall be assigned and

designated for implementation of the strategic plan for sidewalks and bikeways, as

approved by the planning commission. The applicant’s payment shall be allocated

within ten years of receipt of the payment within the same pedestrian benefit zone

as the property to be developed; otherwise, the payment shall be refunded to the

building permit applicant.

(Doc. No. 125-1, Metro. Code § 17.20.120(D)(2).)

The plaintiffs’ position is that Metro has used their payments “for other, unauthorized

purposes.” (Doc. No. 123 at 34 (citing Kumrow Dep., Doc. No. 110-2 at 38; Metro’s Resp. to Pls.’

2d Set of Interrogs., Doc. No. 125-4 ¶ 6).) They claim that Metro’s unauthorized use has

diminished the amount of money in the Sidewalk Fund and, moreover, that, “[o]nce the funds are

paid, the Ordinance provides no process to challenge the use of the funds or to ensure the funds

are used in accordance with the requirements of the Ordinance.” (Id. (citing Metro. Code §§

17.20.120, 17.20.125).) Thus, they contend that they are “permit applicants” who submitted in-

lieu payments but who have no “procedural recourse outside of this litigation” for reimbursement

of those funds in accordance with the Ordinance. (Id.)10

In support of their due process claim, the plaintiffs assert that they have a protected property

interest in the return of “those specific funds” that they paid into the Sidewalk Fund “if they are

not used in accordance with the Ordinance” (id.) and that Metro has “deprived them of this

property” by “us[ing] in-lieu payments on expenditures other than building sidewalks within the

pedestrian benefit zone from which the funds were received” (id. at 36).

Kristin Kumrow, Assistant Director, Finance, for Metro’s Department of Transportation

(“NDOT”), testified regarding the receipt of, and accounting for, funds allocated to the Sidewalk

Fund. According to Kumrow, once an in-lieu payment was received by NDOT from Metro’s codes

division, the payment would be deposited into “the general Metro bank account,” and “the

appropriate general ledger accounting string was assigned to the deposit so that NDOT could

identify and make sure it was in the correct accounting string or funding source.” (Kumrow Dep.

30–31.) All funds within the Sidewalk Fund are assigned to a specific pedestrian benefit zone, and

NDOT tracks the money and knows how much has been allocated for sidewalks in each particular

pedestrian benefit zone. (Id. at 31.) Kumrow also testified, however, that even when Metro’s

engineering division decides to build sidewalks within a particular pedestrian benefit zone, and

NDOT communicates to engineering that there is money in the Sidewalk Fund allocated to that

zone, engineering might or might not decide to use some, all, or none of the available funds

allocated for that zone. (Id. at 31–34.)

10 The due process claim apparently relates to payments into the Sidewalk Fund with

respect to which takings claims would be barred by the one-year statute of limitations.

As of May 2023, when Knight was issued, over $14,000,000 in Metro’s account was in the

accounting string for the Sidewalk Fund. Since then, approximately $4,000,000 has been paid out

of the Sidewalk Fund to reimburse claimants who submitted successful claims through the Metro

Sidewalk Claim Process, to pay interest on those claims, and to reimburse a smaller number of

claimants who paid to build sidewalks rather than paying an in-lieu fee. (Id. at 38–40.)

Kumrow further clarified in her Declaration, however, that “[e]very dollar that has been

paid out of the Sidewalk Fund to build sidewalks can be traced back to a specific in-lieu fee and

permit, within that same pedestrian benefit zone.” (Kumrow Decl., Doc. No. 110-4 ¶ 4.) She also

states that, although Metro has temporarily suspended expenditures from the Sidewalk Fund during

the pendency of the Sidewalk Claim Process, “NDOT has and will continue to allocate all funds

received as in-lieu fees (including any such fees paid by the Plaintiffs) within the same pedestrian

benefit zone as the applicant’s property and has no plans to deviate from that course of managing

the Sidewalk Fund.” (Id. ¶¶ 5–6.) In addition, if necessary, Metro Council would be “able to satisfy

any expenses incurred against the Sidewalk Fund, including any in-lieu fee refunds that might

come due at some point in the future, by various means, including specific appropriation.” (Id.

¶ 7.)

Relying on Kumrow’s deposition testimony that money was paid out of the Sidewalk Fund

to reimburse claimants who submitted claims in accordance with the Metro Sidewalk Claim

Process, including claimants who paid the in-lieu fee and those who built sidewalks, the plaintiffs

insist that Metro has misused the money in the Sidewalk Fund by spending it in ways not

contemplated by the Sidewalk Ordinance, has diminished the amount of money available to

reimburse the plaintiffs if their in-lieu payments have not been used within ten years of payment

to build sidewalks in the pedestrian benefit zone in which the subject properties are located, and

has not provided the plaintiffs any procedure for challenging Metro’s misallocation or for seeking

reimbursement of their in-lieu payments. The plaintiffs also take issue with Kumrow’s Declaration

to the extent, the plaintiffs claim, it is inconsistent with her deposition testimony.

2. Discussion

The Fourteenth Amendment to the U.S. Constitution provides that no “State [shall] deprive

any person of life, liberty, or property, without due process of law.” To prove a § 1983 procedural

due process claim, the plaintiffs must establish that

(1) [they have] a life, liberty, or property interest protected by the Due Process

Clause, (2) [they were] deprived of this protected interest, and (3) the state did not

afford [them] adequate procedural rights prior to depriving [them] of [their]

protected interest.

Durham v. Martin, No. 21-5099, 2021 WL 6777028, at *5 (6th Cir. Nov. 23, 2021) (citing Hahn

v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999)). In considering procedural due process claims,

the court must first “determine whether the interest at stake is within the Fourteenth Amendment’s

protection of liberty and property.” Ferencz v. Hairston, 119 F.3d 1244, 1247 (6th Cir. 1997). And

only if the plaintiff establishes the deprivation of such an interest does the court “consider the form

and nature of the process that is due.” Id. (citing Bd. of Regents v. Roth, 408 U.S. 564, 570–71,

(1972)).

Protected property interests are “created and their dimensions are defined by existing rules

or understandings that stem from an independent source such as state law—rules or understandings

that secure certain benefits and that support claims of entitlement to those benefits.” Roth, 408

U.S. at 577. In other words, the court must look to Tennessee law to determine whether the

plaintiffs have a protected property interest. Smallwood v. Cocke Cnty. Gov’t, 290 F. Supp. 3d 755,

761 (E.D. Tenn.), aff’d, 754 F. App’x 310 (6th Cir. 2018); see also Agrawal v. Montemagno, 574

F. App'x 570, 578–79 (6th Cir. 2014) (“A protected property interest is one to which a plaintiff

has a legitimate claim of entitlement under state law.” (citing Ferencz, 119 F.3d at 1247)).

The Supreme Court has recognized the existence of a protected property interest when a

claimant has a “present entitlement” to “exercise ownership dominion over real or personal

property, or to pursue a gainful occupation.” Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189,

196 (2001). However, a plaintiff “can have no legitimate claim of entitlement to a discretionary

decision.” Richardson v. Twp. of Brady, 218 F.3d 508, 517 (6th Cir. 2000). In the context of

government benefits, for example, such as pension benefits, a claimant is generally not deemed to

have a protectable interest when the “benefit has not yet commenced” and “a determination of

entitlement has not yet been made.” Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 317 (M.D.

Pa. 2004) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 60 (1999)). “Entitlement to a

benefit, creating a ‘property’ interest under the Due Process Clause, arises only when government

has created an unqualified right to receive the benefit or when the appropriate authority has deemed

conditions to receipt satisfied.” Id. (citing Lujan, 532 U.S. at 194–98; Am. Mfrs., 526 U.S. at 60).

In other words, there is a “difference between eligibility and entitlement. The former means that

the person has an ability to seek a benefit. The latter means that the person may now control it.

And only the latter is constitutionally significant for purposes of ‘property.’” Id. (citing Am. Mfrs.,

526 U.S. at 60). “To hold otherwise would render every question of state contract and statutory

interpretation a matter of constitutional concern. . . . Not every alleged breach of a state contract

is a due process claim.” Id. at 318 (citations omitted).

As for the deprivation element, “[a] constitutionally cognizable deprivation occurs when

an individual’s reasonable expectation to use and control a benefit is so diminished as to reduce

substantially the value of the benefit.” Id. at 321 (citing Mennonite Bd. of Missions v. Adams, 462

U.S. 791, 798 (1983). “Reasonable expectation, like legitimate entitlement, is founded on

governing rules and understandings, usually state law. When these rules accord a right to use or

control a benefit, and the exercise of that right is significantly restricted or eliminated, the

Constitution recognizes a deprivation.” Id. (internal citation omitted). However, the due process

clause also does not protect against the “spectre of some future deprivation.” Muscarello v.

Winnebago Cnty. Bd., 702 F.3d 909, 914 (7th Cir. 2012).

Metro, in this case, argues that the plaintiffs cannot establish either a protected property

interest or the deprivation of any such interest. The plaintiffs counter that none of the cases cited

by the defendant is on point and insist that the Ordinance’s use of “shall” entitles them to a refund

of their in-lieu payments if the funds are not spent on sidewalks. They further insist that they have

been deprived of that entitlement by Metro’s expenditure of money from the Sidewalk Fund on

something other than building sidewalks within the pedestrian benefit zone from which the funds

were received.

The court finds the plaintiffs’ due process claim to be utterly without merit. Although

neither party points to a case that is remotely on point (likely because the situation is unusual and

the plaintiffs’ claim is such an outlier), the plaintiffs’ entitlement to repayment is clearly contingent

upon whether, in ten years from the date of their payments (which cannot have occurred prior to

2017, because that was when the Sidewalk Ordinance was first enacted), the funds have been spent

on building sidewalks within the appropriate pedestrian benefit zone. If they have not been spent

for that purpose, then the plaintiffs will be entitled to reimbursement. Until then, their eligibility

for reimbursement is entirely conditioned on matters that are outside their control. They do not

have a present entitlement to control those funds or to seek reimbursement.

34

As for deprivation, it is difficult to see how the plaintiffs can have been deprived of funds

to which they are not yet, and may never be, entitled. Moreover, even if the court were to presume

that the plaintiffs have a protected property interest in the return of the unspent in-lieu funds, their

argument about the misuse of the Sidewalk Fund is entirely speculative. Money, as Metro points

out, is fungible. The plaintiffs are not entitled to a return of the specific dollars they paid into the

fund, and the fact that Metro is allocating funds from the Sidewalk Fund to pay claims made

through the Sidewalk Claim Process does not diminish the plaintiffs’ expectation that they will be

reimbursed 1f, in fact, they become entitled to rermbursement. There is no suggestion on the record,

for example, that Metro is insolvent or that it would be unable to reimburse the plaintiffs as

required by the Ordinance.

In short, the plaintiffs’ procedural due process claim fails as a matter of law on the facts

presented. None of the plaintiffs is entitled to an immediate return of funds, and they have not been

prospectively denied the recovery of funds to which they might someday be entitled. Metro is

entitled to summary judgment on the plaintiffs’ due process claim. Because this holding applies to

all plaintiffs, the court has no need to address the plaintiffs’ contention that Infinium’s due process

claim somehow survives, even though Infinium lacks standing to pursue a takings claim.

IV. CONCLUSION

For the reasons set forth herein, Metro’s Motion for Summary Judgment will be granted in

part and denied in part. An appropriate Order is filed herewith.

United States District Judge