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No. 17-17504
________________________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
________________________

PEYMAN PAKDEL; SIMA CHEGINI,

Plaintiffs – Appellants,

v.

CITY AND COUNTY OF SAN FRANCISCO;

SAN FRANCISCO BOARD OF SUPERVISORS;
SAN FRANCISCO DEPARTMENT OF PUBLIC WORKS,

Defendants – Appellees.
_______________________________

On Appeal from the United States District Court

for the Northern District of California
Honorable Richard Seeborg, District Judge
_______________________________
APPELLANTS’ PETITION FOR REHEARING EN BANC
_______________________________
PAUL F. UTRECHT JAMES S. BURLING
Utrecht & Lenvin, LLP JEFFREY W. McCOY
109 Stevenson Street, 5th Floor ERIN E. WILCOX
San Francisco, California 94105 Pacific Legal Foundation
Telephone: (415) 357-0600 930 G Street
Email: [email protected] Sacramento, California 95814
Telephone: (916) 419-7111
THOMAS W. CONNORS Facsimile: (916) 419-7747
Black McCuskey Souers Email: [email protected]
& Arbaugh, LPA Email: [email protected]
220 Market Ave. S., Suite 1000 Email: [email protected]
Canton, Ohio 44702
Telephone: (330) 456-8341
Email: [email protected]
Attorneys for Plaintiffs – Appellants
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................... ii

FRAP 35(b) STATEMENT ........................................................................ 1
INTRODUCTION AND FACTUAL BACKGROUND .............................. 2
ARGUMENT ............................................................................................. 6
I. This Court Should Grant Rehearing En Banc to Clarify
that a Plaintiff Does Not Need to Exhaust Administrative
Remedies Before Filing a Takings Claim in Federal Court ............ 6
II. This Court Should Grant Rehearing En Banc to Answer
a Question of Exceptional Importance About the Scope
of the Unconstitutional Conditions Doctrine................................. 17
CONCLUSION ........................................................................................ 22
Form 11: Certificate of Compliance for Petitions for
Rehearing or Answers .......................................................................... 23
CERTIFICATE OF SERVICE................................................................. 24

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TABLE OF AUTHORITIES

Cases
Alto Eldorado P’ship v. Cty. of Santa Fe,
634 F.3d 1170 (10th Cir. 2011) ............................................................ 21
Ballinger v. City of Oakland,
398 F. Supp. 3d 560 (N.D. Cal. 2019) .................................................. 21
Bldg. Indus. Ass’n–Bay Area v. City of Oakland,
289 F. Supp. 3d 1056 (N.D. Cal. 2018),
aff’d, 775 F. App’x 348 (9th Cir. 2019) ............................................ 20-21
California Bldg. Indus. Ass’n v. City of San Jose, Cal.,
136 S. Ct. 928 (2016) .................................................................. 2, 17, 22
City of Portsmouth, N.H. v. Schlesinger,
57 F.3d 12 (1st Cir. 1995) ..................................................................... 21
Daniel v. County of Santa Barbara,
288 F.3d 375 (9th Cir. 2002) .......................................................... 15–16
Dodd v. Hood River County,
59 F.3d 852 (9th Cir. 1995) .............................................. 1, 7, 11, 15–16
Dolan v. City of Tigard,
512 U.S. 374 (1994) ........................................................... 2, 6, 17-20, 22
Garneau v. City of Seattle,
147 F.3d 802 (9th Cir. 1998) ........................................................... 18-19
Guatay Christian Fellowship v. County of San Diego,
670 F.3d 957 (9th Cir. 2011) ........................................................... 11-12
Hoehne v. County of San Benito,
870 F.2d 529 (9th Cir. 1989) ................................................................ 11
Horne v. U.S. Dep’t of Agric.,
750 F.3d 1128 (9th Cir. 2014), rev’d, 576 U.S. 350 (2015)................... 20
Knick v. Township of Scott,
139 S. Ct. 2162 (2019) ......................................................... 5–6, 8, 15-16
Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595 (2013) ..................................................................... 6, 17-20

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Lake Nacimiento Ranch Co. v. San Luis Obispo County,

841 F.2d 872 (9th Cir. 1987) .......................................................... 12–13
Levin v. City & Cty. of San Francisco,
71 F. Supp. 3d 1072 (N.D. Cal. 2014) .................................................. 20
McClung v. City of Sumner,
548 F.3d 1219 (9th Cir. 2008) ........................................................ 19–20
McGuire v. United States,
550 F.3d 903 (9th Cir. 2008) ........................................................... 10-11
Mechammil v. City of San Jacinto,
653 F. App’x 562 (9th Cir. 2016) ............................................. 1, 7, 10-12
Mitchum v. Foster, 407 U.S. 225 (1972) .................................................... 8
Nollan v. California Coastal Commission,
483 U.S. 825 (1987) ........................................................... 1, 6, 17-20, 22
Pakdel v. City & Cty. of San Francisco,
952 F.3d 1157 (9th Cir. 2020) .............................. 5–6, 12–13, 15, 17, 20
Parking Ass’n of Georgia, Inc. v. City of Atlanta,
515 U.S. 1116 (1995) ............................................................................ 21
Patsy v. Board of Regents of State of Florida,
457 U.S. 496 (1982) ...................................................... 1, 6–8, 10, 12, 17
Suitum v. Tahoe Reg’l Planning Agency,
520 U.S. 725 (1997) .............................................................................. 17
Williamson County Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City,
473 U.S. 172 (1985) ...................................................................... 1, 5–17
Rule
Circuit Rule 36-3 ....................................................................................... 1
Other Authorities
San Francisco Public Works, Department of Public Works
Expedited Conversion Program Frequently Asked Questions,
https://www.sfpublicworks.org/sites/default/files/4132-
ECP%20Questions_FINAL_102914.pdf ................................................ 3

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FRAP 35(b) STATEMENT

Appellants Plaintiffs Peyman Pakdel and Sima Chegini (the

Pakdels) respectfully request rehearing en banc for the following

reasons.

The panel decision conflicts with the Supreme Court’s decisions in

Patsy v. Board of Regents of State of Florida, 457 U.S. 496 (1982), and

Williamson County Reg’l Planning Comm’n v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985), and previous decisions of this Court.

Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995); Mechammil v.

City of San Jacinto, 653 F. App’x 562, 565 (9th Cir. 2016).1 Contrary to

these decisions, the panel majority opinion requires a plaintiff to

exhaust administrative remedies before filing a takings claim in federal

court. Consideration by the full court is necessary to secure and

maintain uniformity of the court’s decisions.

Additionally, the panel decision raises a question of exceptional

importance regarding the Takings Clause: whether the unconstitutional

conditions doctrine articulated in Nollan v. California Coastal

1Under Circuit Rule 36-3, Mechammil is cited “to demonstrate the

existence of a conflict among opinions, dispositions, or orders” in this
Circuit.
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Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S.

374 (1994), applies where the alleged taking arises from a legislatively

imposed condition rather than an administrative one. The scope of the

unconstitutional conditions doctrine is “an important and unsettled

issue under the Takings Clause” and warrants en banc review.

California Bldg. Indus. Ass’n v. City of San Jose, Cal., 136 S. Ct. 928,

928 (2016) (Thomas, J., concurring in the denial of certiorari).

INTRODUCTION AND FACTUAL BACKGROUND

Peyman Pakdel and Sima Chegini (the Pakdels) are a married

couple close to retirement. In 2009, they purchased a tenancy in

common interest in a six-unit building in San Francisco, giving them

ownership rights in one of the units. Volume 1, Excerpts of Record (ER)

1-2. The purchase agreement required the Pakdels to work with the

other owners to convert the tenancy in common interest into individual

condominiums as soon as possible. 2 ER 294. Dreaming of one day

retiring to the property, the Pakdels did not move in immediately

because of their careers in Ohio. Instead, the Pakdels rented their unit

to a tenant. Id.

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In 2013, the City and County of San Francisco stopped the then-

existing condominium conversion lottery and enacted a new ordinance.

2 ER 294-95. The new ordinance allowed for more conversions, but also

required that any applicant for conversion offer a lifetime lease to any

non-owning tenants, including some former tenants. 2 ER 295; San

Francisco Public Works, Department of Public Works Expedited

Conversion Program Frequently Asked Questions.2 Because the Pakdels’

tenant is much younger than them, a lifetime lease effectively prevents

the Pakdels from moving into their retirement home.

The Pakdels’ purchase agreement obligated them to cooperate

with the other tenant-in-common owners in applying to convert the

building under the City’s new conversion program. When the Pakdels

entered into the agreement, the City was using a conversion lottery.

That lottery preserved the rights of converting owners to perform

“Owner Move In” evictions under the San Francisco Rent Ordinance,

and to quit the rental business under California state law. See 2 ER

296. When the Pakdels signed the purchase agreement, they rightfully

2https://www.sfpublicworks.org/sites/default/files/4132-
ECP%20Questions_FINAL_102914.pdf.
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believed that upon conversion to a condominium, these laws would still

cover their Unit. 2 ER 294.

In 2015, the couple submitted the conversion application to

comply with their contractual obligations, despite their objections to the

lifetime lease requirement. 2 ER 295-97. Prior to submitting the

application, the Pakdels consulted with the City, and City officials

stated that the City would not grant any waivers of the lifetime lease

requirement. Furthermore, City officials told the Pakdels that if they

evicted their tenant to reclaim the unit as their primary residence the

City would disqualify the conversion application. Moreover, the Pakdels

could not challenge the lifetime lease requirement before converting

their Unit because, under the terms of the ordinance, filing a lawsuit

prior to conversion would halt all conversion applications and thereby

subject them to liability from their neighbors for breach of contract.

2 ER 172.

On June 9 and 13, 2017, the Pakdels reiterated their objections to

the lifetime lease condition, specifically requesting that the City excuse

them from executing and recording a lifetime lease to their Unit. 2 ER

296; 1 ER 2 (district court opinion). The City refused these requests on

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June 12 and 13, 2017, and indicated that failing to execute the lifetime

lease would violate the ordinance. 2 ER 296-97; 1 ER 2.

The Pakdels subsequently filed a complaint in federal district

court, alleging, among other claims, that the lifetime lease requirement

was a taking of their property without just compensation. The district

court dismissed the takings claims solely on the ground that the

Pakdels did not comply with Williamson County’s requirement that a

plaintiff seek compensation for a taking in state court before filing in

federal court. 1 ER 5–7. The United States Supreme Court abrogated

this “state litigation” requirement while the Pakdels’ appeal was

pending. Knick v. Township of Scott, 139 S. Ct. 2162, 2169 (2019).

In a 2-1 decision, the court affirmed the dismissal under an

alternative argument that the suit was unripe because the County’s

land use decision was not “final.” Pakdel v. City & Cty. of San

Francisco, 952 F.3d 1157 (9th Cir. 2020). The panel majority held that

the City had not made a final decision on the lifetime lease requirement

because the Pakdels failed to utilize the City’s formal administrative

procedures to object to it. Id. at 1165. As a result of the decision, the

Pakdels were denied relief and are also foreclosed from ripening their

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claims in the future. Id. at 1168. Judge Bea dissented from the opinion,

stating that “[r]equiring plaintiffs to adhere to specific administrative

procedures for requesting ‘variances’ from a regulation … risks

‘establish[ing] an exhaustion requirement for § 1983 takings claims,’

something the law does not allow.” Id. at 1170 (Bea, J., dissenting)

(quoting Knick, 139 S. Ct. at 2173).

The panel majority also dismissed the Pakdels’ claim that the

lifetime lease requirement violated the unconstitutional conditions

doctrine as articulated in Nollan, Dolan, and Koontz v. St. Johns River

Water Mgmt. Dist., 570 U.S. 595, 604 (2013). Pakdel, 952 F.3d at 1162

n.4. The panel majority held that the lifetime lease requirement did not

violate Nollan and Dolan because the condition was imposed by a

legislative act, rather than an individualized adjudication. Id.

ARGUMENT

I. This Court Should Grant Rehearing En Banc

to Clarify that a Plaintiff Does Not Need to
Exhaust Administrative Remedies Before
Filing a Takings Claim in Federal Court

The Panel’s decision requires property owners to exhaust

administrative remedies before bringing a takings claim in federal

court. This is inconsistent with Patsy, 457 U.S. at 501, Williamson

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County, 473 U.S. at 193, and this Court’s previous decisions

interpreting Williamson County’s finality requirement. See Dodd, 59

F.3d at 858, 860; Mechammil, 653 F. App’x at 565. This Court should

grant the Petition to resolve these conflicts and to prevent changing the

ripeness doctrine into an exhaustion requirement.

In Patsy, the Court held that a plaintiff does not have to exhaust

administrative remedies before filing a lawsuit under 42 U.S.C. § 1983.

457 U.S. at 516. In reaching this holding, the Court looked at the

legislative histories of both § 1983 and its precursor, § 1 of the Civil

Rights Act of 1871. The Court determined that, with these statutes,

Congress intended to “throw open the doors of the United States courts

to individuals who” have suffered a deprivation of constitutional rights

and “provide these individuals immediate access to the federal courts

notwithstanding any provision of state law to the contrary.” 457 U.S. at

504 (citation omitted).

Even before Patsy, the Court had “on numerous occasions rejected

the argument that a § 1983 action should be dismissed where the

plaintiff has not exhausted state administrative remedies.” Patsy, 457

U.S. at 500. “Section 1983 opened the federal courts to private citizens,

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offering a uniquely federal remedy against” unconstitutional actions

taken under the color of state law. Mitchum v. Foster, 407 U.S. 225, 239

(1972). Requiring a plaintiff to exhaust administrative remedies would

frustrate the purposes of § 1983. Patsy, 457 U.S. at 511.

Three years after Patsy, the Court decided Williamson County.

473 U.S. at 186. The Court articulated two ripeness concepts potentially

applicable to takings cases. First, the Court held that a regulatory

takings claim is generally premature until the government reaches a

“final decision” applying its regulations. Id. at 186–94. The Williamson

County Court then went on to discuss a second ripeness barrier to some

takings cases. It stated: “[I]f a State provides an adequate procedure for

seeking just compensation, the property owner cannot claim a violation

of the Just Compensation Clause until it has used the procedure and

been denied just compensation.” Id. at 195. Knick overturned the second

requirement, while the finality requirement remains in place. 139 S. Ct.

at 2169.

Consistent with Patsy, Williamson County reaffirmed that

exhaustion of administrative remedies is not a prerequisite to filing a

takings claim in federal court. 473 U.S. at 194 n.13 (citing Patsy, 457

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U.S. 496); id. at 193. Williamson County’s finality requirement is

designed to ensure that a land use decision maker has “arrived at a

definitive position on the issue that inflicts an actual, concrete injury.”

473 U.S. at 193. Once such an injurious decision is final, a takings claim

is ripe. Id. The point of the requirement is to ensure that the

government has made a final decision imposing concrete harms on the

challenging parties. Id.

The Williamson County Court elaborated on how the finality

requirement differs from a rule requiring exhaustion of administrative

remedies. 473 U.S. at 193. The Court explained that finality is satisfied

by a “conclusive determination” by the government agency “whether it

would allow respondent to develop the subdivision in the manner

respondent proposed.” Id. By contrast, “the exhaustion requirement

generally refers to administrative and judicial procedures by which an

injured party may seek review of an adverse decision and obtain a

remedy if the decision is found to be unlawful or otherwise

inappropriate.” Id. In short, the issue in the finality inquiry is not

whether landowners participated in all available administrative

procedures. Id. at 192–93. Instead, finality rests on whether a

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government entity has conclusively applied the relevant regulation to

the plaintiff’s property. Id.

The finality requirement of Williamson County is forward looking,

while exhaustion is backward looking. In determining that the

plaintiff’s claim was not ripe, the Court looked to what procedures were

still available to the plaintiff. The Court indicated how the plaintiff had

“not yet obtained a final decision” and then explained how the plaintiff

could ripen its claims. Williamson County, 473 U.S. at 190 (emphasis

added). The Court ended its discussion of the finality requirement by

stating that the County’s decision “leaves open the possibility that [the

plaintiff] may develop the subdivision according to its plat after

obtaining the variances.” Id. at 193–94. Thus, consistent with Patsy, the

Williamson County court reiterated that “[e]xhaustion of review

procedures is not required” in order to satisfy the finality requirement.

473 U.S. at 194 n.13; id. at 192.

This Court’s previous decisions recognize that Williamson

County’s finality requirement is not an exhaustion requirement. See

Mechammil, 653 F. App’x at 565; McGuire v. United States, 550 F.3d

903, 909 n.2 (9th Cir. 2008) (holding that the government’s decision was

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final and stating that the government’s argument “might be better

characterized as an exhaustion argument or a defense to liability”);

Hoehne v. County of San Benito, 870 F.2d 529, 534 (9th Cir. 1989)

(rejecting district court’s failure to exhaust rationale). When applying

the finality requirement, this Court has looked forward, stating that the

finality inquiry is whether “there remained the ‘potential for ...

administrative solutions’” to resolve a dispute. Dodd, 59 F.3d at 858

(quoting Williamson County, 473 U.S. at 187). Exhaustion, on the other

hand, requires the Court to look backwards, to see if there were

administrative procedures available to a property owner before the

government made its decision. See Mechammil, 653 F. App’x at 565;

McGuire, 550 F.3d at 909 n.2; Williamson County, 473 U.S. at 193.

In this way, this Court has recognized that Williamson County’s

finality question “comports with ripeness jurisprudence generally

speaking ….” Guatay Christian Fellowship v. County of San Diego,

670 F.3d 957, 981 (9th Cir. 2011). “The central concern of ripeness is

whether the case involves uncertain or contingent future events that

may not occur as anticipated, or indeed may not occur at all.” Dodd,

59 F.3d at 860. Even when this Court has found a case unripe under the

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finality requirement, it has noted that administrative avenues remain

open to the plaintiff. See Guatay Christian Fellowship, 670 F.3d at 983,

987–88; Lake Nacimiento Ranch Co. v. San Luis Obispo County,

841 F.2d 872, 876 (9th Cir. 1987) (County’s decision was not final

because it suggested how Plaintiffs could submit a formal development

proposal going forward).

Put simply, ripeness, “i.e. the need to have received a final

decision,” does not require exhaustion “i.e. the need to first use state or

local procedures to allow a state or local agency to address a legal

dispute before filing a federal lawsuit.” Mechammil, 653 F. App’x at

565. When a City relies on an ordinance to regulate property, the City’s

decision is final under Williamson County. Id. “There is no general

exhaustion requirement under 42 U.S.C. § 1983.” Id. (citing Patsy,

457 U.S. at 516).

The panel majority, however, created an exhaustion requirement

here. In interpreting the finality requirement, the panel majority looked

backward, not forward. Specifically, the panel majority held that the

Pakdels failed to ripen their claims because they did not utilize the

City’s remedial procedures. Pakdel, 952 F.3d at 1165. The panel

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suggested that the Pakdels could have objected at a public hearing or

appealed the Department of Public Works’ decision. Id. But neither the

Panel majority, nor the City, suggests what the Pakdels can do going

forward to ripen their claims. Compare with Lake Nacimiento Ranch

Co., 841 F.2d at 876. Indeed, the panel majority’s decision leaves no

possibility that the Pakdels will obtain any relief from the City’s

lifetime lease requirement.

In changing the finality requirement into an exhaustion

requirement, the Panel majority relied on an out of context quote from

Williamson County. Pakdel, 952 F.3d at 1166 (quoting Williamson

County, 473 U.S. at 190). The panel majority conflated the Supreme

Court’s description of the property owner’s intentions with the merits of

the decision. The property owners, in a letter to Williamson County,

“took the position that it would not request variances from the

Commission until after the Commission approved the proposed plat ….”

Williamson County, 473 U.S. at 190. The county’s procedures, however,

required landowners to request variances before approval, so the county

disapproved the plat. Id.

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But by disapproving the plat, Williamson County made no

decision about how the owners could use their land going forward.

Indeed, the county’s disapproval allowed the property owners to reapply

following the proper procedures after the case was dismissed.

Williamson County, 473 U.S. at 193–94. Importantly, the Court noted

that “[t]he Commission’s refusal to approve the preliminary plat does

not determine that issue … but leaves open the possibility that

respondent may develop the subdivision according to its plat after

obtaining the variances.” Id. (emphasis added). Only after the property

owners reapplied would the county make a final decision about whether

a variance would be granted.

Thus, when the Supreme Court decided Williamson County, the

government had not yet implemented its land use regulations, so the

Court could not determine how the county would apply those

regulations to the property. In contrast here, the City implemented the

regulation once the time to appeal had run and the regulation now

applies to the Pakdels. There are no future procedures available to the

Pakdels to get the City to change its position. Knowing how a city will

apply a regulation to a specific piece of property is the purpose of

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Williamson County’s finality requirement, and ripeness generally.

Dodd, 59 F.3d at 858, 861.

Nothing in Williamson County supports the panel majority’s

approach to the finality requirement. In fact, the panel majority’s

insistence that the Pakdels utilize all available administrative

procedures contradicts the longstanding principle, reaffirmed in

Williamson County, that a property owner does not have to exhaust

administrative remedies in order to file a takings lawsuit in federal

court. 473 U.S. at 193, 194 n.13.

The only other justification the panel majority offered to support

the creation of an exhaustion requirement was a decision of this Court

applying the now-overturned state litigation requirement. Pakdel, 952

F.3d at 1166 (citing Daniel v. County of Santa Barbara, 288 F.3d 375,

381 (9th Cir. 2002)). The panel majority believed Daniel provided an

“analogous context” to the situation here. Id. But, after Knick, that

analogy is faulty.

The pre-Knick logic of the state litigation requirement cannot be

applied to the finality requirement. Pakdel, 952 F.3d at 1171 n.3 (Bea,

J., dissenting). Prior to Knick, the understanding was that a plaintiff

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did not suffer a taking, and thus did not have a claim, until a state

court denied compensation. See Williamson County, 473 U.S. at 194–95.

That interpretation of the Takings Clause was incorrect, and the Knick

Court overruled the state litigation requirement. 139 S. Ct. at 2179.

Moreover, one of the Court’s justifications for overturning the

state litigation requirement was that it was contrary to “settled rule”

that “exhaustion of state remedies is not a prerequisite to an action

under” § 1983. Knick, 139 S. Ct. at 2167 (internal quotations omitted).

Knick rejected Daniel’s rationale that a plaintiff must follow all

available state procedures before bringing a takings claim in federal

court. Daniel, 288 F.3d at 381. Yet the panel majority relied on Daniel

to turn Williamson County’s finality requirement into an exhaustion

requirement.

The City has made it clear that, under its ordinance, it will apply

the lifetime lease requirement to the Pakdels’ property. There are no

future administrative procedures that will free the Pakdels from the

lifetime lease requirement. 2 ER 296–97; 1 ER 2. There are no

“uncertain or contingent future events that may not occur as

anticipated,” Dodd, 59 F.3d at 860, and “no question here about how the

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‘regulations at issue [apply] to the particular land in question.’” Suitum

v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 739 (1997) (quoting

Williamson County, 473 U.S. at 191). Here, the panel majority

contradicted Patsy, Williamson County, and this Court’s previous

decisions, and dismissed because the Pakdels failed to exhaust

administrative remedies. En Banc consideration is necessary to resolve

this conflict.

II. This Court Should Grant Rehearing En Banc to Answer

a Question of Exceptional Importance About the Scope
of the Unconstitutional Conditions Doctrine

Additionally, this case presents a question of exceptional

importance regarding the application of the unconstitutional conditions

doctrine articulated in Nollan, Dolan, and Koontz. The panel majority

dismissed the Pakdels’ unconstitutional conditions claim on the ground

that the doctrine does not apply when a condition is imposed through

legislation, rather than by an individualized administrative decision.

Pakdel, 952 F.3d at 1162 n.4. Whether the unconstitutional conditions

doctrine is limited to administrative decisions is “an important and

unsettled issue under the Takings Clause.” California Bldg. Indus.

Ass’n, 136 S. Ct. at 928 (Thomas, J., concurring in the denial of

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certiorari). The circuits are split on this question and, even within this

circuit, judges have reached different conclusions on the question.

Nollan and Dolan explain how the unconstitutional conditions

doctrine applies in the context of land-use regulations. Nollan, 483 U.S.

825; Dolan, 512 U.S. 374. The government may only exact a private

interest in property for the benefit of the public when the exaction bears

an “essential nexus” and “rough proportionality” to an adverse public

impact caused by the proposed project. Nollan, 483 U.S. at 837; Dolan,

512 U.S. at 391; see also Koontz, 570 U.S. at 614–15. Otherwise, the

condition is unconstitutional. See Dolan, 512 U.S. at 385. In short “the

government may not require a person to give up a constitutional right

… in exchange for a discretionary benefit conferred by the government

where the benefit sought has little or no relationship to the property.”

Id.

Since Dolan, this Court has inconsistently articulated when and

how the doctrine applies. In Garneau v. City of Seattle, this Court

recognized that “the Supreme Court has left unsettled the question

whether Dolan’s rough proportionality test applies to legislative, as

opposed to administrative exactions” but failed to answer that question.

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147 F.3d 802, 811 (9th Cir. 1998). Two judges wrote separate opinions,

offering their conflicting views on whether Nolan and Dolan apply to

legislatively imposed conditions. Id. at 813–15 (O’Scannlain, J.,

concurring and dissenting in part), 819–20 (Williams, J., concurring).

Later, in the decision cited by the panel majority here, this Court

addressed “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.”

McClung v. City of Sumner, 548 F.3d 1219, 1225 (9th Cir. 2008). This

Court applied the Penn Central test, id. at 1227–29, but left

unanswered whether Nollan/Dolan applies to “a legislative

development condition designed to advance a wholly unrelated

interest.” Id. at 1225 n.3.

Whether McClung remains good law is an open question. In

Koontz, the Supreme Court held that a monetary exaction can give rise

to a claim under Nollan and Dolan, and expressly abrogated the holding

in McClung. 570 U.S. at 603. Here, the panel majority interpreted that

abrogation narrowly, and cited McClung for the broad proposition that

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Nollan and Dolan do not apply to legislatively imposed conditions.

Pakdel, 952 F.3d at 1162 n.4.

McClung did not hold that legislative exactions are never subject

to Nollan and Dolan scrutiny. Indeed, one year after Koontz, this Court

applied the Nollan/Dolan framework to a legislative exaction of

personal property. Horne v. U.S. Dep’t of Agric., 750 F.3d 1128, 1141–43

(9th Cir. 2014), rev’d, 576 U.S. 350 (2015). This Court held that “Nollan

and Dolan provide an appropriate framework to decide” that case “given

the significant but not total loss of the Hornes’ possessory and

dispositional control over their” personal property. Id. at 1141 n.18.

En banc consideration is necessary to determine Koontz’s effect on

McClung. Lower courts in this circuit disagree about whether Koontz

undermines the reasoning for holding legislative exactions exempt from

Nollan and Dolan scrutiny. For example, Judge Breyer stated that

Koontz undermines the reasoning for holding legislative exactions

exempt from Nollan and Dolan. Levin v. City & Cty. of San Francisco,

71 F. Supp. 3d 1072, 1083 n.4 (N.D. Cal. 2014). Judge Chhabria

disagreed with that argument. Bldg. Indus. Ass’n–Bay Area v. City of

Oakland, 289 F. Supp. 3d 1056, 1058 (N.D. Cal. 2018), aff’d, 775 F.

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App’x 348 (9th Cir. 2019); see also Ballinger v. City of Oakland, 398 F.

Supp. 3d 560, 571 (N.D. Cal. 2019). En banc review by this Court will

clarify the scope of the unconstitutional conditions doctrine to the lower

courts.

Furthermore, an en banc rehearing would address a circuit split

on this question. The First Circuit applies the nexus and proportionality

tests to generally applicable permit conditions, while the Tenth Circuit

does not. Compare City of Portsmouth, N.H. v. Schlesinger, 57 F.3d 12,

16 (1st Cir. 1995), with Alto Eldorado P’ship v. Cty. of Santa Fe, 634

F.3d 1170, 1179 (10th Cir. 2011). Although this Court’s review cannot

resolve the circuit split, this Court can help provide guidance to those

circuits that have not answered the question.

Two justices of the Supreme Court have expressly recognized the

importance of this issue. Parking Ass’n of Georgia, Inc. v. City of

Atlanta, 515 U.S. 1116 (1995) (Thomas, J., joined by O’Connor, J.,

dissenting from denial of certiorari). As Justice Thomas stated, “[i]t is

not clear why the existence of a taking should turn on the type of

governmental entity responsible for the taking. A city council can take

property just as well as a planning commission can.” Id. at 1117–18;

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California Bldg. Indus. Ass’n, 136 S. Ct. at 928–29. The Supreme Court

has not clearly addressed this issue and this Court has inconsistently

approached the question.

The uncertainty of whether the unconstitutional conditions

doctrine applies to legislative exactions merits en banc consideration.

Judges of this Court, and within this Circuit, remain divided on the

correct approach to this question. This Court should grant the petition

for rehearing en banc to clearly resolve whether a legislatively imposed

condition is subject to Nollan and Dolan.

CONCLUSION

This Petition for rehearing en banc should be granted.

DATED: May 6, 2020.

Respectfully submitted,

PAUL F. UTRECHT
THOMAS W. CONNORS
JAMES S. BURLING
JEFFREY W. McCOY
ERIN E. WILCOX

s/ Jeffrey W. McCoy
JEFFREY W. McCOY

Attorneys for Plaintiffs – Appellants

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Form 11. Certificate of Compliance for

Petitions for Rehearing or Answers

9th Cir. Case Number(s) 17-17504_________________________

I am the attorney or self-represented party.

I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached

petition for rehearing en banc is:

[X] Prepared in a format, typeface, and type style that complies with
Fed. R. App. P. 32(a)(4)-(6) and contains the following number
of words: 4,150.
(Petitions and answers must not exceed 4,200 words)

OR

[ ] In compliance with Fed. R. App. P. 32(a)(4)-(6) and does not exceed

15 pages.

Signature s/ Jeffrey W. McCoy Date May 6, 2020

(use “s/[typed name]” to sign electronically-filed documents)

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CERTIFICATE OF SERVICE

I hereby certify that on May 6, 2020, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF

system.

s/ Jeffrey W. McCoy
JEFFREY W. McCOY

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEYMAN PAKDEL; SIMA CHEGINI, No. 17-17504

Plaintiffs-Appellants,
D.C. No.
v. 3:17-cv-03638-
RS
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO BOARD
OF SUPERVISORS; SAN FRANCISCO OPINION
DEPARTMENT OF PUBLIC WORKS,
Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California
Richard Seeborg, District Judge, Presiding

Argued and Submitted September 13, 2019

San Francisco, California

Filed March 17, 2020

Before: Ronald M. Gould, Carlos T. Bea, and Michelle T.

Friedland, Circuit Judges.

Opinion by Judge Friedland;

Dissent by Judge Bea
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2 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

SUMMARY *

Civil Rights

The panel affirmed the district court’s dismissal of an

action brought pursuant to 42 U.S.C. § 1983 against the City
and County of San Francisco asserting an as-applied
challenge to the Expedited Conversion Program, which
allows property owners to convert their tenancy-in-common
properties into condominium properties on the condition that
the owners agree to offer any existing tenants lifetime leases
in units within the converted property.

Plaintiffs purchased an interest in a tenancy-in-common

property in 2009 and soon thereafter rented their portion of
the property to a tenant. When the Expedited Conversion
Program began, plaintiffs and their co-owners applied to
convert their property and plaintiffs agreed to offer their
tenant a lifetime lease as a condition of converting and duly
received final approval from the City to convert. During the
process, plaintiffs had several opportunities to request an
exemption from the lifetime lease requirement but did not do
so. Indeed, toward the end of the process, they expressly
waived their right to seek such an exemption. But after
securing final approval, plaintiffs requested that the City not
require them to execute and record the lifetime lease or, in
the alternative, that the City compensate them. Consistent
with plaintiffs’ previous lack of objection and their prior
express agreements not to seek an exemption, the City
refused plaintiffs’ requests. Plaintiffs sued the City,

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 3

contending under various theories that the lifetime lease

requirement violated the Takings Clause of the Fifth
Amendment. The district court dismissed plaintiffs’ takings
claims because they had not sought compensation for the
alleged taking in state court, which then was required by
Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

The panel first acknowledged that the state-litigation

requirement has since been eliminated by Knick v. Township
of Scott, 139 S. Ct. 2162 (2019), so it was no longer a proper
basis for dismissal. Nevertheless, the panel held that
because plaintiffs did not timely ask the City for an
exemption from the lifetime lease requirement, they failed to
satisfy Williamson County’s separate finality requirement,
which survived Knick and thus continued to be a requirement
for bringing regulatory takings claims such as plaintiffs’ in
federal court. The panel stated that plaintiffs’ belated
attempts to request an exemption were untimely and
expressly waived. The panel therefore affirmed the
dismissal of plaintiffs’ takings claim as unripe.

The panel rejected plaintiffs’ argument that they were

exempt from the Williamson County ripeness requirements
because the Expedited Conversion Program effects a
“private” taking, benefitting private individuals rather than
the public. The panel held that plaintiffs’ characterization of
their claim as a “private” takings claim was foreclosed by
Rancho de Calistoga v. City of Calistoga, 800 F.3d 1083 (9th
Cir. 2015). The panel also rejected plaintiffs’ request that
the panel exercise its discretion to excuse plaintiffs from the
finality requirement. The panel concluded that none of the
cases plaintiffs used to argue that they should be excused
from the finality requirement presented circumstances
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4 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

analogous to those here, and the panel saw no reason to

invent a new rationale for exercising such discretion.

Dissenting, Judge Bea stated that because the City had

reached a final decision which denied plaintiffs’ request to
be excused from executing and recording a lifetime lease to
their unit, he would vacate the district court’s order
dismissing the takings claim and remand the case for further
proceedings.

COUNSEL

Jeffrey W. McCoy (argued), James S. Burling, and Erin E.

Wilcox, Pacific Legal Foundation, Sacramento, California;
Paul F. Utrecht, Utrecht & Lenvin, LLP, San Francisco,
California; Thomas W. Connors, Black McCuskey Souers &
Arbaugh, LPA, Canton, Ohio; for Plaintiffs-Appellants.

Kristen A. Jensen (argued) and Christopher T. Tom, Deputy

City Attorneys; Dennis J. Herrera, City Attorney; City
Attorney’s Office, City and County of San Francisco, San
Francisco, California; for Defendants-Appellees.

OPINION

FRIEDLAND, Circuit Judge:

In the City and County of San Francisco (the “City”),

ownership of multi-unit buildings is often shared by different
people through a form of property ownership known as a
tenancy in common. For years, those in the City who sought
to convert their tenancy-in-common property into
individually owned condominium property had to apply for
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 5

permission to do so through a lottery system. Because

conversion rights were granted through the lottery to only a
very limited number of properties each year, a backlog
developed. To clear that backlog, the City temporarily
suspended the lottery in 2013 and replaced it with the
Expedited Conversion Program (“ECP”), which allowed a
tenancy-in-common property to be converted into a
condominium property on the condition that its owner
agreed to offer any existing tenants lifetime leases in units
within the converted property.

Peyman Pakdel and Sima Chegini (collectively,

“Plaintiffs”) purchased an interest in a tenancy-in-common
property in 2009 and soon thereafter rented their portion of
the property to a tenant. When the ECP began, Plaintiffs and
their co-owners applied to convert their property. Plaintiffs
initially advanced through the application process without a
hitch: They agreed to offer their tenant a lifetime lease as a
condition of converting and duly received final approval
from the City to convert. During this process, they had
several opportunities to request an exemption from the
lifetime lease requirement but did not do so. Nevertheless,
at the eleventh hour, they balked. Refusing to execute the
lifetime lease they had offered to their tenant, Plaintiffs
instead sued the City, contending under various theories that
the lifetime lease requirement violates the Takings Clause of
the Fifth Amendment.

The district court dismissed Plaintiffs’ takings claims

because they had not sought compensation for the alleged
taking in state court, which was required by Williamson
County Regional Planning Commission v. Hamilton Bank of
Johnson City, 473 U.S. 172 (1985). That state-litigation
requirement has since been eliminated by Knick v. Township
of Scott, 139 S. Ct. 2162 (2019), so it is no longer a proper
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6 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

basis for dismissal. But because Plaintiffs did not ask the
City for an exemption from the lifetime lease requirement,
they failed to satisfy Williamson County’s separate finality
requirement, which survived Knick and thus continues to be
a requirement for bringing regulatory takings claims such as
Plaintiffs’ in federal court. We therefore hold that their
takings challenge is unripe, and accordingly affirm. 1

I.

A.

Tenancy in common is a form of shared property

ownership in which “each owner has an equal right to
possession and use of the entire property.” Marcia Rosen &
Wendy Sullivan, From Urban Renewal and Displacement to
Economic Inclusion: San Francisco Affordable Housing
Policy 1978-2014, 25 Stan. L. & Pol’y Rev. 121, 134 n.57
(2014). In San Francisco, many multi-unit buildings are co-
owned as tenancies in common. See Carolyn Said, Strangers
Sharing Mortgages, SFGate (Aug. 25, 2005),
https://www.sfgate.com/realestate/article/Strangers-sharing-
mortgages-Many-would-be-2645563.php. Co-owners of such
properties can “make agreements among themselves[] to
give each owner an exclusive right” to occupy or use a
particular unit within the building. Tom v. City & County of
San Francisco, 16 Cal. Rptr. 3d 13, 16 (Ct. App. 2004). In
a condominium, by contrast, “each owner has exclusive
ownership and possession of a single unit and common

1
Plaintiffs asserted other constitutional claims as well, which the
district court dismissed with prejudice. We address Plaintiffs’ appeal of
the dismissal of those claims in a concurrently filed memorandum
disposition. Plaintiffs also asserted state law claims, which the district
court dismissed as procedurally barred. Plaintiffs have not appealed the
dismissal of those claims.
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 7

ownership only for the common areas.” Rosen & Sullivan,

supra, at 134 n.57.

Owners of tenancy-in-common units may hope to

convert those units into condominiums in order to attain
superior title and improved credit opportunities.
Condominium owners in San Francisco may also derive
significant economic value from selling their properties after
conversion because, in contrast to most tenancy-in-common
properties, condominiums are not subject to the City’s rent
control laws once sold by the converting owner.

In 2009, Plaintiffs purchased a tenancy-in-common

interest in a six-unit San Francisco building (the “Building”),
which, by agreement with their co-owners, afforded
Plaintiffs the right to exclusively use one unit (the “Unit”).
They rented the Unit to a tenant, intending to move in
themselves when they retired. Plaintiffs also contracted with
their co-owners to take all steps available to convert the
Building into condominiums, which would allow them to
gain independent title to their respective units.

At the time Plaintiffs purchased and rented out the Unit,

the City granted condominium conversion rights using a
lottery system. Under the lottery system, only 200 units
were granted permission to convert each year, and a
considerable backlog of conversion applications
accumulated. In 2013, the San Francisco Board of
Supervisors acted to clear this backlog by enacting
Ordinance 117-13 (the “Ordinance”), which suspended the
conversion lottery until 2024 and replaced it with the ECP.
The ECP allowed property owners to convert their tenancy-
in-common properties into condominium properties subject
to an application fee and certain conditions. Most notably,
the ECP required owners who did not occupy their units
themselves and instead rented to tenants to furnish
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8 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

incumbent tenants with “a written offer to enter into a life

time lease” for the converting unit (the “Lifetime Lease
Requirement”). S.F. Subdivision Code § 1396.4(g)(1). 2
Owners who extended a lifetime lease were entitled to a
partial refund of the ECP application fee. See S.F.
Subdivision Code § 1396.4(h). The Lifetime Lease
Requirement was designed to mitigate an adverse effect that
the City feared would result from the accelerated conversion
of tenancy-in-common properties into condominium
properties under the ECP—“a large number of tenants
[displaced] into a very expensive rental housing market.” In
other words, the ECP sought to achieve the City’s objective
of temporarily allowing more condominium conversions
while also limiting the displacing effects of such
conversions.

In 2015, Plaintiffs and their fellow Building owners

submitted an ECP application to the San Francisco
Department of Public Works (the “Department”). Following
a public hearing, the Department approved their tentative
conversion map in January 2016. 3 In November 2016,
Plaintiffs signed an agreement with the City committing to
offer a lifetime lease to their tenant, and in fact offered their
tenant such a lease. In that agreement, Plaintiffs specifically
“covenant[ed] and agree[d] that [they] w[ould] not seek a
waiver of the provisions of the [ECP] applicable to the
Lifetime Lease Units” after that stage of the approval

2
A similar, but narrower, requirement existed under the lottery
system. Converting owners were required to offer lifetime leases to
tenants aged 62 or older and to permanently disabled tenants. See S.F.
Subdivision Code § 1391(c). There were also some limits on rental rates
and increases for units occupied by such tenants. See id.
3
A “tentative map” is “a map made for the purpose of showing the
design of a proposed subdivision.” S.F. Subdivision Code § 1309(k).
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 9

process. In exchange for offering the lifetime lease,

Plaintiffs sought and received a partial refund of the ECP
application fee. See S.F. Subdivision Code § 1396.4(h).
Their final conversion map was approved in December
2016.

Until that point, Plaintiffs had given the City no

indication that they objected to the Lifetime Lease
Requirement. But on June 9 and again on June 13, 2017—
six months after they secured final approval to convert—
Plaintiffs “requested that the City not require them to
execute and record the lifetime lease,” or “in the alternative
to compensate them for transferring a lifetime lease interest
in their property.” Consistent with Plaintiffs’ previous lack
of objection to the Lifetime Lease Requirement and their
prior express agreement not to seek a waiver of ECP
requirements after November 2016, the City refused both
requests.

B.

Instead of executing and recording the lifetime lease,

Plaintiffs sued the City in federal district court, asserting an
as-applied challenge to the Ordinance under 42 U.S.C.
§ 1983. The Complaint alleged that the Lifetime Lease
Requirement effects a regulatory taking of Plaintiffs’
property without just compensation in violation of the
Takings Clause. 4 Because the Ordinance contains a clause

4
Plaintiffs alleged in the alternative that the Lifetime Lease
Requirement effects an exaction, a physical taking, and a private taking.
But because these alternative theories plainly fail as a matter of law, we
analyze Plaintiffs’ takings challenge as a regulatory takings claim. The
Lifetime Lease Requirement is not an exaction under Nollan v.
California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City
of Tigard, 512 U.S. 374 (1994), because it is “a general requirement
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10 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

providing that the filing of any legal challenge to the

Lifetime Lease Requirement triggers a suspension of the
entire ECP with respect to tenant-occupied units for the
duration of the litigation, this lawsuit has halted the City’s
processing of ECP applications for properties with tenant-
occupied units since June 2017.

The district court granted the City’s motion to dismiss

Plaintiffs’ Complaint because Plaintiffs had not sought
compensation for the alleged taking of their property through
a state court proceeding. Plaintiffs timely appealed.

II.

We review de novo grants of motions to dismiss. Naruto

v. Slater, 888 F.3d 418, 421 (9th Cir. 2018). “We may affirm
the district court’s dismissal on any grounds supported by
the record.” Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1136
(9th Cir. 2013).

imposed through legislation,” rather than “an individualized”

requirement to grant property rights to the public imposed as a condition
for approving a specific property development. McClung v. City of
Sumner, 548 F.3d 1219, 1227–29 (9th Cir. 2008), abrogated on other
grounds by Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595
(2013). And the Lifetime Lease Requirement does not amount to a
physical taking because Plaintiffs voluntarily applied for conversion
under the ECP. See Yee v. City of Escondido, 503 U.S. 519, 527 (1992)
(“The government effects a physical taking only where it requires the
landowner to submit to the physical occupation of his land.”); FCC v.
Fla. Power Corp., 480 U.S. 245, 252 (1987) (law limiting the rent that
utility companies could charge for leasing space on utility poles to cable
television operators was not a physical taking because the utility
companies “voluntarily entered into [the] leases with [the] cable
company tenants”). Finally, as explained below, Plaintiffs’ private
takings claim is simply a reframing of their regulatory takings claim.
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 11

III.

“Constitutional challenges to local land use regulations

are not considered by federal courts until the posture of the
challenges makes them ‘ripe’ for federal adjudication.” S.
Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502
(9th Cir. 1990). In Williamson County Regional Planning
Commission v. Hamilton Bank of Johnson City, 473 U.S. 172
(1985), the Supreme Court articulated two independent
ripeness requirements for regulatory takings claims. First,
under the finality requirement, a takings claim challenging
the application of land-use regulations was “not ripe until the
government entity charged with implementing the
regulations ha[d] reached a final decision regarding the
application of the regulations to the property at issue.” Id. at
186. Second, under the state-litigation requirement, a claim
was not ripe if the plaintiff “did not seek compensation [for
the alleged taking] through the procedures the State ha[d]
provided for doing so.” Id. at 194.

A.

The district court dismissed Plaintiffs’ takings challenge

under the state-litigation requirement. While this appeal was
pending, however, the Supreme Court in Knick v. Township
of Scott, 139 S. Ct. 2162 (2019), eliminated that requirement.
The Court held in Knick that “[t]he Fifth Amendment right
to full compensation arises at the time of the taking,
regardless of post-taking remedies that may be available to
the property owner.” Id. at 2170. Accordingly, a plaintiff
need not seek compensation in state court to ripen a federal
takings claim. Id.

In light of Knick, Plaintiffs’ failure to seek just

compensation in state court no longer bars them from
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12 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

bringing their takings claim in federal court in the first

instance.

B.

The City nevertheless maintains that Plaintiffs’ takings

claim is unripe under the first Williamson County
requirement, which prohibits a plaintiff from filing suit
“until the government entity charged with implementing the
regulations has reached a final decision regarding the
application of the regulations to the property at issue.” 473
U.S. at 186. Knick left this finality requirement untouched,
so that aspect of Williamson County remains good law.
Knick, 139 S. Ct. at 2169 (“Knick does not question the
validity of this finality requirement, which is not at issue
here.”); see also id. at 2174 (noting that Williamson County
“could have been resolved solely on the . . . ground that no
taking had occurred because the zoning board had not yet
come to a final decision”); Campbell v. United States, 932
F.3d 1331, 1340 & n.5 (Fed. Cir. 2019) (recognizing that the
finality requirement “remains good law under Knick”).
Plaintiffs do not contend otherwise; they instead argue that
they satisfied the finality requirement. We agree with the
City, however, that Plaintiffs’ takings claim remains unripe
because they never obtained a final decision regarding the
application of the Lifetime Lease Requirement to their Unit.

1.

Williamson County illuminates the rationale for and

scope of the finality requirement. There, a county planning
commission disapproved a landowner’s proposed plat for
developing a tract of land after determining that the plat
violated various zoning regulations. 473 U.S. at 181. Local
government entities “had the power to grant certain
variances” from the zoning regulations that would have
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 13

resolved many of the commission’s objections to the plat.

Id. at 188. Yet the landowner did not seek such variances.
Id. Instead, the landowner brought suit in federal court
alleging that the commission’s application of the zoning
regulations amounted to a taking of the property. Id. at 182.
The Supreme Court held that the takings claim was not ripe
in part because factors central to determining whether a
regulatory taking occurred—such as “the economic impact
of the challenged action and the extent to which it interferes
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.” Id. at 191. Williamson County thus made clear
that the finality requirement “is compelled by the very nature
of the inquiry” required in a takings case. Id. at 190.

The Court has further emphasized that the finality

requirement “responds to the high degree of discretion
characteristically possessed by land-use boards” in granting
variances from their general regulations with respect to
individual properties. Suitum v. Tahoe Reg’l Planning
Agency, 520 U.S. 725, 738 (1997). In light of “such
flexibility or discretion,” courts cannot make “a sound
judgment about what use will be allowed” by local land-use
authorities merely by asking whether a development
proposal “facially conform[s] to the terms of the general use
regulations.” Id. at 738–39; see also MacDonald, Sommer
& Frates v. Yolo County, 477 U.S. 340, 348 (1986)
(explaining that “[a] court cannot determine whether a
regulation has gone ‘too far’ until it knows how far the
regulation goes,” which requires “a final and authoritative
determination” of how the regulation will be applied to the
property in question). And “[b]y requiring [a plaintiff] to
seek recourse at the local level” before bringing a federal
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14 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

takings claim, the finality requirement “enable[s] us to

respect principles of federalism which counsel in favor of
resolving land use disputes locally.” Guatay Christian
Fellowship v. County of San Diego, 670 F.3d 957, 979 (9th
Cir. 2011).

Accordingly, under Williamson County, “a final decision

exists when (1) a decision has been made ‘about how a
plaintiff’s own land may be used’ and (2) the local land-use
board has exercised its judgment regarding a particular use
of a specific parcel of land, eliminating the possibility that it
may ‘soften[] the strictures of the general regulations [it]
administer[s].’” Adam Bros. Farming, Inc. v. County of
Santa Barbara, 604 F.3d 1142, 1147 (9th Cir. 2010)
(alterations in original) (quoting Suitum, 520 U.S. at 738–
39). This rule means that a plaintiff must “meaningful[ly]”
request and be denied a variance from the challenged
regulation before bringing a regulatory takings claim. S.
Pac. Transp. Co., 922 F.2d at 503. But “[t]he term
‘variance’ is not definitive or talismanic; if other types of
permits or actions are available and could provide similar
relief, they must be sought.” Id.; see also, e.g., McMillan v.
Goleta Water Dist., 792 F.2d 1453, 1455, 1457 (9th Cir.
1986) (holding that a takings claim became ripe when the
plaintiffs’ request for an exemption from a moratorium on
new water connections was denied by the water district).
Plaintiffs who “have foregone an opportunity to bring their
proposal” to use their property in a manner that diverges
from the regulation alleged to effect a taking “before a
decisionmaking body with broad authority to grant different
forms of relief” therefore “cannot claim to have obtained a
‘final’ decision.” S. Pac. Transp. Co., 922 F.2d at 503.
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 15

2.

The San Francisco Department of Public Works is a

decisionmaking body with broad authority over
condominium conversions in the City, including discretion
to grant relief from conversion requirements. See S.F.
Subdivision Code § 1312(a) (vesting discretion in the
Director of Public Works to “authorize exceptions to any of
the substantive requirements set forth in [the Subdivision]
Code and in the Subdivision Regulations” upon “application
by the subdivider”); Cal. Gov’t Code § 66473.5. Plaintiffs,
however, did not ask the Department for an exemption from
the Lifetime Lease Requirement during the ECP approval
process, even though they concededly had opportunities to
do so.

Plaintiffs could have sought an exemption at or leading

up to the January 7, 2016 public hearing held on their
conversion application. Before that hearing, as required by
local and state law, Plaintiffs and their Building co-owners
submitted a tentative conversion map for the City’s
approval. See S.F. Subdivision Code § 1303(c); Cal. Gov’t
Code § 66473.5. The tentative conversion map included a
promise to extend lifetime leases to existing tenants, without
noting any objection from Plaintiffs to that condition of
conversion.

The City notified Plaintiffs and the public that in the

twenty days before the Department’s proposed decision on
the tentative map, any interested party could raise objections.
See S.F. Subdivision Code § 1396.4(c)(2) (providing that
“any interested party may file a written objection to [a
conversion] application” before the Department rules on a
tentative map); Cal. Gov’t Code § 65009(b)(1) (providing
that interested parties may challenge a map application at
“the public hearing or in written correspondence delivered
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16 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

to the public agency prior to, or at, the public hearing”).

Again, Plaintiffs did not object to the requirement that their
proposed plan include an offer of a lifetime lease.

It appears that Plaintiffs could also have objected to the

Lifetime Lease Requirement by appealing the Department’s
approval of the tentative map. See S.F. Subdivision Code
§ 1314(a) (“The proposed subdivider[] or any interested
party may appeal to the Board [of Supervisors] from a final
decision of the Director [of Public Works] approving,
conditionally approving, or disapproving a Tentative
Map.”). The notice of tentative approval sent to Plaintiffs
informed them of their right to appeal, stating: “This
notification letter is to inform you of your right to appeal this
tentative approval. IF YOU WOULD LIKE TO FILE AN
APPEAL OF THE TENTATIVE APROVAL: You must do
so in writing with the Clerk of the Board of Supervisors
within ten (10) days of the date of this letter.” Plaintiffs,
however, did not even attempt to appeal.

Plaintiffs do not dispute that they gave no indication of

any reservations about the Lifetime Lease Requirement
despite having had these opportunities to request an
exemption. To the contrary, after allowing each objection
period to lapse, they forged ahead with the conversion
process and entered into a written agreement with the City
to provide a lifetime lease to their tenant, in which they
expressly waived their right to thereafter seek an exemption
from the Lifetime Lease Requirement. Plaintiffs also
applied for and received from the City a partial refund of the
ECP application fee—a refund only available to property
owners who offered lifetime leases to their tenants. See S.F.
Subdivision Code § 1396.4(h). It was not until six months
after Plaintiffs had obtained final approval of their
conversion map, and seven months after they had committed
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 17

to offering a lifetime lease in exchange for the benefits of

conversion, that they finally asked “the City not [to] require
them to execute and record the lifetime lease.”

The dissent asserts that Plaintiffs’ belated attempts to

request an exemption satisfied the finality requirement. 5
Dissent at 26. But by that point, Plaintiffs’ request was
untimely and expressly waived. Takings plaintiffs cannot
make an end run around the finality requirement by sitting
on their hands until every applicable deadline has expired
before lodging a token exemption request that they know the
relevant agency can no longer grant. In Williamson County,
the Supreme Court expressly rejected the landowner’s
position that it could satisfy the finality requirement by

5
We note that Plaintiffs themselves did not even advance this
argument until their supplemental reply brief, where it was mentioned in
passing in a footnote. In the same footnote, Plaintiffs suggested that any
request for an exemption would have been futile because “the City had
no discretion to waive the lifetime lease requirement.” They offered no
argument or evidence to substantiate this assertion; they cited only
section 1396.4(g) of the Ordinance, which says nothing about depriving
the City of discretion to waive the Lifetime Lease Requirement. In light
of the City’s open-ended solicitation of objections to the conversion
application, we cannot assume that an exemption request would have
been futile.

We have no examples before us of exemptions from the Lifetime

Lease Requirement, but that does not mean exemptions would have been
unavailable. Because Plaintiffs’ lawsuit halted the ECP for all tenant-
occupied properties, the City has not had any opportunities to consider
exemption requests. Moreover, given that the Lifetime Lease
Requirement was animated by concerns of widespread displacement of
tenants, it is possible that the City would have been more amenable to
exemption requests from individual owners, like Plaintiffs, who were
seeking to convert a single unit that they planned to move into
themselves, than from landlords who sought to convert multiple
properties.
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18 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

“request[ing] variances from the Commission . . . after the

Commission approved the proposed plat,” which would
have been too late under the commission’s regulations. 473
U.S. at 190. That the commission would still theoretically
have had the power to grant a variance after plat approval
was apparently immaterial to the Court’s analysis. The
Court explained that the landowner’s “refusal to follow the
procedures for requesting a variance” was fatal to its
contention that “the Commission’s disapproval of the
preliminary plat was equivalent to a final decision that no
variances would be granted.” Id.

Moreover, we have held in the analogous context of the

then-binding state-litigation requirement that when a
plaintiff missed deadlines or failed to comply with other
requirements for ripening a federal takings claim, the claim
must be dismissed. See Daniel v. County of Santa Barbara,
288 F.3d 375, 381 (9th Cir. 2002) (“[T]he failure of [the
plaintiffs] to seek just compensation meant that they never
created ripe federal takings claims,” and such failure “cannot
now be cured because the applicable state limitation periods
have long since expired.”); see also Pascoag Reservoir &
Dam, LLC v. Rhode Island, 337 F.3d 87, 96 (1st Cir. 2003)
(“[A takings] claimant cannot be permitted to let the time for
seeking a state remedy pass without doing anything to obtain
it and then proceed in federal court on the basis that no state
remedies are open.” (quoting Gamble v. Eau Claire County,
5 F.3d 285, 286 (7th Cir. 1993))). Other courts of appeals
have reached similar conclusions. See Liberty Mut. Ins. Co.
v. Brown, 380 F.3d 793, 799 (5th Cir. 2004) (“By failing to
utilize available state remedies for obtaining compensation,
[the plaintiff] has prevented itself from meeting the second
ripeness requirement of Williamson County. Further,
because the three-year prescriptive period for an inverse
condemnation action [under state law] has now expired, . . .
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 19

[the plaintiff] has permanently prevented the claim from ever

ripening.”); Pascoag Reservoir, 337 F.3d at 94 (similar);
Vandor, Inc. v. Militello, 301 F.3d 37, 39 (2d Cir. 2002)
(similar); Gamble, 5 F.3d at 286 (similar); Harris v. Mo.
Conservation Comm’n, 790 F.2d 678, 681 (8th Cir. 1986)
(similar).

The rationale for such a rule was straightforward: If a

plaintiff could have bypassed the (then-existing) state-
litigation requirement and “obtain[ed] jurisdiction in the
federal courts simply by waiting until the statute of
limitation bars the state remedies,” the state-litigation
requirement would have been meaningless. Pascoag
Reservoir, 337 F.3d at 95 (quoting Harris, 790 F.2d at 681).
This rationale applies with equal force to the finality
requirement. Allowing a takings claim to proceed when a
variance or exemption was not requested at the proper
junctures would undermine the purposes of the finality
requirement by eliminating local officials’ opportunities to
exercise discretion and by presenting federal courts with ill-
defined controversies. See Guatay Christian Fellowship,
670 F.3d at 977 (“[T]he final decision requirement . . . is the
sole means by which a court can know precisely how the
regulation at issue would finally be applied to the property”
in question, and “accords with principles of federalism . . .
by encouraging resolution of land use disputes at the local
level.”); see also FERC v. Mississippi, 456 U.S. 742, 767
n.30 (1982) (“[R]egulation of land use is perhaps the
quintessential state activity.”). The dissent does not explain
how the finality requirement can retain any force if a takings
claim brought by a plaintiff who made no attempt to follow
the prescribed procedures for obtaining a final decision can
be considered ripe. By allowing property owners to bypass
state and local governments’ processes for making land use
decisions, the dissent’s approach would subvert principles of
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20 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

comity and federalism. Williamson County prohibits us

from going down that path. See 473 U.S. at 186–91.

Plaintiffs protest that requiring them to have sought an

exemption through the prescribed procedures amounts to
imposing an administrative exhaustion requirement in the
guise of a finality requirement. It is true that, in general,
“there is no requirement that a plaintiff exhaust
administrative remedies before bringing a § 1983 action.”
Williamson County, 473 U.S. at 192. But the Court in
Williamson County nevertheless held that, in the takings
context, a property owner’s failure to seek a variance
through procedures made available by the local land-use
authority meant that the authority had not reached a final
decision. See id. at 193. The Court explained that the
finality requirement would have been satisfied only by a
“conclusive determination” by the local land-use authority
“whether it would allow [the property owner] to develop the
[parcel of land] in the manner [the owner] proposed.” Id. at
193. Here, Plaintiffs never “proposed” that the City exempt
them from the Lifetime Lease Requirement. They gave the
City no inkling that they wanted an exemption, and therefore
gave it no opportunity to exercise its “flexibility or
discretion” to grant such an exemption. See Suitum, 520
U.S. at 738. At bottom, Plaintiffs’ argument is that because
they ignored the finality requirement for long enough, it no
longer applies to them. As Williamson County made clear,
that is not correct. 473 U.S. at 190 (“[I]n the face of [the
property owner’s] refusal to follow the procedures for
requesting a variance, . . . [the owner] hardly can maintain
that the Commission’s disapproval of the preliminary plat
was equivalent to a final decision that no variances would be
granted.”).
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 21

Instead of attempting to ripen their claim during the

proper course, Plaintiffs knowingly waived their right to
seek an exemption. We therefore affirm the dismissal of
Plaintiffs’ takings claim as unripe. 6

3.

Plaintiffs offer two further arguments in an attempt to

save their takings claim from dismissal, neither of which is
persuasive.

a.

Plaintiffs first argue that, even if their regulatory takings

claim is unripe, their first cause of action—which alleges
that the ECP effects a “private” taking because it benefits
private individuals rather than the public—is exempt from
the Williamson County ripeness requirements. We disagree.

6
The dissent contends that dismissing Plaintiffs’ takings claim on
the ground that they have foregone their opportunity to ripen it “is a
merits ruling rather than one about ripeness.” Dissent at 27. Certainly,
the contingent nature of Plaintiffs’ interest in condominium conversion
would tend to undermine their claim that the conversion effected a
taking. See Bowers v. Whitman, 671 F.3d 905, 913 (9th Cir. 2012)
(explaining that there is no taking “if the property interest [at issue] is
contingent and uncertain or the receipt of the interest is . . .
discretionary” (quotation marks omitted)). But as cases like Daniel and
Pascoag Reservoir illustrate, the consequence of the failure to timely
ripen a takings claim is that the claim must be dismissed before its merits
can be evaluated. See Pascoag Reservoir, 337 F.3d at 96 (affirming
dismissal of takings claim with prejudice because the plaintiff’s “failure
to bring a timely suit for compensation under state law has led to the
forfeiture of its federal taking claim.”); Daniel, 288 F.3d at 381
(affirming dismissal of takings claim with prejudice because “the failure
of [the plaintiffs] to seek just compensation meant that they never created
ripe federal takings claims”).
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22 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

Even if some category of “private” takings claims could

be exempt from the finality requirement, which is a question
we need not decide, 7 Plaintiffs’ characterization of their
claim as a “private” takings claim is foreclosed by Rancho
de Calistoga v. City of Calistoga, 800 F.3d 1083 (9th Cir.
2015). In that case, a mobile home park (Rancho) alleged
that the City of Calistoga’s mobile home rent-control
ordinance, which limited the magnitude of annual rent
increases, effected “an unconstitutional private taking
because any purported ‘public use’ [was] pretextual.” Id. at
1092. Rancho insisted that the “real purpose” behind the
ordinance was to provide rent subsidies to mobile home
tenants, which violated the Supreme Court’s admonishment
in Kelo v. City of New London, 545 U.S. 469 (2005), that
“the sovereign may not take the property of A for the sole
purpose of transferring it to another private party B.”
Rancho de Calistoga, 800 F.3d at 1092–93 (quoting Kelo,
545 U.S. at 477). We explained, however, that, where no
physical seizure such as that in Kelo had occurred, a private
takings claim alleging “public takings motivated by a
‘private purpose’” was “simply a renaming of [a] regulatory
takings claim.” Id. at 1092 (citation omitted). That is,
Rancho’s argument was an attempt to “refram[e]” its
challenge to an alleged regulatory taking as a private takings
claim “through an attack on the stated purposes of the rent-
control scheme.” Id. at 1092–93.

7
Plaintiffs cite only precedent holding that “a plaintiff alleging [a
private] taking would not need to seek compensation in state proceedings
before filing a federal takings claim” under the state-litigation
requirement of Williamson County. Armendariz v. Penman, 75 F.3d
1311, 1320 n.5 (9th Cir. 1996) (en banc), overruled in part on other
grounds as recognized in Crown Point Dev., Inc. v. City of Sun Valley,
506 F.3d 851 (9th Cir. 2007).
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 23

Plaintiffs’ private takings theory fails for the same

reason. Like Rancho, they allege that the Lifetime Lease
Requirement is “intended to favor a particular private party
with only incidental or pretextual public benefits.” Also like
Rancho, Plaintiffs argue that “the City has taken their
property for the sole purpose of benefiting another private
party” in violation of Kelo. Where, as here, full possession
of the property has not been seized, such a challenge is at
bottom a regulatory takings claim subject to Williamson
County’s finality requirement—which, as explained above,
Plaintiffs cannot satisfy.

b.

As a last resort, Plaintiffs urge us to excuse them from

the finality requirement in this instance as an exercise of our
discretion. Because Williamson County’s ripeness
requirements are prudential, not jurisdictional, we do have
some discretion whether to impose them. See Guggenheim
v. City of Goleta, 638 F.3d 1111, 1118 (9th Cir. 2010) (en
banc). But none of the circumstances that prompted the
exercise of discretion in the cases Plaintiffs rely on for this
argument are present here.

First, there are no concerns in this case about different

claims proceeding simultaneously in state and federal court,
as in Town of Nags Head v. Toloczko, 728 F.3d 391 (4th Cir.
2013). 8 See id. at 399. Second, the City here raised the
ripeness issue at the first opportunity, in contrast to the
defendant city in Yamagiwa v. City of Half Moon Bay, 523
8
Plaintiffs’ non-takings claims will not generate piecemeal
litigation. As discussed in the concurrently filed memorandum
disposition, Plaintiffs’ unreasonable seizure, due process, and equal
protection claims incurably fail as a matter of law on the merits and so
were properly dismissed without leave to amend.
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24 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

F. Supp. 2d 1036 (N.D. Cal. 2007), which acted in bad faith

by not asserting ripeness as a defense until more than two
years into the case, following the completion of trial. See id.
at 1108. Third, this case is unlike

Guggenheim, in which we opted not to impose the state-

litigation requirement on the plaintiffs because we
concluded that their takings claim failed on the merits, “so it
would [have been] a waste of the parties’ and the courts’
resources to bounce the case through more rounds of
litigation.” 638 F.3d at 1118. Plaintiffs here have urged us
not to reach the merits of their takings claim in the first
instance, because “the parties have [not had] an opportunity
to develop a factual record that would allow this Court to
properly analyze” the claim. The rationale of Guggenheim
thus has no applicability in this case.

In sum, none of the cases Plaintiffs use to argue that they

should be excused from the finality requirement presented
circumstances analogous to those here, and we see no reason
to invent a new rationale for exercising such discretion.

IV.

For the foregoing reasons, we affirm the district court’s

dismissal of Plaintiffs’ takings claim.

AFFIRMED.
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 25

BEA, Circuit Judge, dissenting:

The majority is correct about the state of the law on the

“ripeness” of takings claims brought under 42 U.S.C.
§ 1983, in the wake of Knick. It remains the case that a
plaintiff may not bring suit for an unconstitutional regulatory
taking until “the government entity charged with
implementing the regulations has reached a final decision
regarding the application of the regulations to the property
at issue.” Williamson County Reg’l Planning Comm’n v.
Hamilton Bank, 473 U.S. 172, 186 (1985); see Knick v.
Township of Scott, Pa., 139 S. Ct. 2162, 2169 (2019).
However, because the City here has indeed reached such a
final decision, I would vacate the district court’s order
dismissing the takings claim and remand the case for further
proceedings. 1

Williamson County’s “finality requirement is concerned

with whether the initial decisionmaker has arrived at a
definitive position on the issue that inflicts an actual,
concrete injury,” not whether a request for “variances”
followed the decisionmaker’s administrative procedures.
Williamson County, 473 U.S. at 193. A takings claim is ripe
if, at the moment a suit is filed, it is possible for the court to
know “how far the regulation goes,” that is, whether and to
what degree a regulation or ordinance will be enforced
against the plaintiff. See Palazzolo v. Rhode Island, 533
U.S. 606, 622 (2001) (citation omitted). If the record is clear
that “no variances will be granted,” then the court knows the
scope of the regulation, it will be enforced as written, and the
claim is ripe. Williamson County, 473 U.S. at 191. Requiring

1
I concur in the memorandum disposition filed concurrently that
affirms the district court’s dismissal of the Plaintiffs’ other constitutional
claims.
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26 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

plaintiffs to adhere to specific administrative procedures for

requesting “variances” from a regulation, rather than simply
evaluating whether a decision about the application of a
regulation is final, is not mandated by Williamson County
and risks “establish[ing] an exhaustion requirement for
§ 1983 takings claims,” something the law does not allow.
See Knick, 139 S. Ct. at 2173; see also McGuire v. United
States, 550 F.3d 903, 909–10 (9th Cir. 2008).

The majority’s description of the Plaintiffs as never

having “obtained a final decision regarding the application
of the Lifetime Lease Requirement to their Unit,” is belied
by the facts. Majority Op. at 12. On June 9 and 13, 2017, the
Plaintiffs specifically requested that the City excuse them
from executing and recording a lifetime lease to their Unit.
The City refused these requests on June 12 and 13, 2017. At
least by June 13, 2017, the City’s position was final. The
Plaintiffs were required to execute and record the lifetime
lease; there would be no variance. The majority correctly
notes that the Plaintiffs made their requests to the City after
several notable events had occurred: (1) they had missed the
official window for appealing the tentative approval of their
subdivision map; (2) they had entered into a contract with
the City to offer the tenant a lifetime lease; (3) they had
offered the lifetime lease to the tenant; (4) they had received
a refund of $8,000 from the City in exchange for offering the
tenant a lifetime lease; and (5) they had their final
subdivision map approved. But none of this bears on the
question whether the City had reached a final decision that
required the Plaintiffs to comply with the lifetime lease
requirement. 2 The City’s rejections of the Plaintiffs’ belated

2
This is not to say that these are irrelevant considerations in
evaluating the merits of the Plaintiffs’ claims. But the limited question
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PAKDEL V. CITY & CTY. OF SAN FRANCISCO 27

requests were clear and final. Accordingly, the Plaintiffs’

claim was ripe.

The majority dismisses the City’s rejection of the

Plaintiffs’ requests to be excused from the lifetime lease
requirement and the unavoidable conclusion that this was a
final decision by the City, because the majority finds the
Plaintiffs’ requests were “untimely and expressly waived.”
Majority Op. at 17. But such a holding is a merits ruling,
rather than one about ripeness. The proper venue for
evaluating, in the first instance, whether the Plaintiffs’ claim
may be defeated by waiver, equitable estoppel, or any other
defense is in the district court on remand. Cf. Dodd v. Hood
River County, 59 F.3d 852, 863 (9th Cir. 1995) (reversing
the district court’s holding that a takings claim was not ripe
but remanding to consider whether the defense of collateral
estoppel applied).

The majority supports its conclusion that the Plaintiffs

lost their ability to ripen their claim because they did not
follow the City’s administrative procedures and object
earlier in the process, by citing to cases that applied the now-
defunct state-litigation requirement from Williamson
County. 3 See Majority Op. at 18–19. Though Williamson

here is whether the merits of the claims were ripe for review in the district
court.
3
The only Ninth Circuit case the majority references for this holding
is Daniel v. County of Santa Barbara, 288 F.3d 375, 381 (9th Cir. 2002),
which it cites for the proposition that if “a plaintiff missed deadlines or
failed to comply with other requirements for ripening the claim, the
claim must be dismissed.” Majority Op. at 18. The majority is
overreading the case. Daniel, beyond being about the Williamson County
state-litigation requirement and not the finality requirement, did not
involve generic “missed deadlines”; it involved the failure of plaintiffs
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28 PAKDEL V. CITY & CTY. OF SAN FRANCISCO

County mentioned the failure of the plaintiff to comply with

regulations for requesting variances, see 473 U.S. at 190, it
did so in a context where, unlike here, the plaintiff had
requested no variance, or other relief, whatsoever. The
majority has no direct authority for its holding that a request
for a variance or exemption to a land-use ordinance, made
and denied after the administrative deadline for filing
objections, cannot satisfy Williamson County’s requirement
that “the administrative agency has arrived at a final,

to commence an action for compensation within the applicable state

statute of limitations. The difference is significant. Before Knick, failure
to seek compensation through state proceedings for an alleged taking of
property not only deprived a plaintiff of potential payment, it also meant
that no cognizable constitutional violation had occurred. This was
because a taking was not without just compensation, and thus the Fifth
Amendment was not violated, until the state had denied a request to
compensate a plaintiff for property taken. See Williamson County, 473
U.S. at 194–95, overruled Knick, 139 S. Ct. at 2172. Therefore, a failure
to file a claim for compensation within the state limitations period was
conclusive that there was no cognizable constitutional violation.

But even after Knick, a failure to file a takings claim in the district
court within the timeframe of the state’s statute of limitations bars relief,
since claims brought under 42 U.S.C. § 1983 are subject to a state’s
statute of limitations for personal injury claims. See Wilson v. Garcia,
471 U.S. 261, 276 (1985). Seeking a variance from a land-use restriction
beyond the deadline outlined in a city regulation or ordinance does not
have the same consequence. Statutes of limitations, unlike local land-use
ordinances, are not “subject to the decision[s] of a regulatory body
invested with great discretion,” to issue waivers or exemptions. Suitum
v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 739 (1997). The only
hope for a plaintiff who fails to commence an action within the period of
the state’s statute of limitations is that a future state legislative act will
amend the statute and extend the limitations period. Whereas a plaintiff
seeking a variance from a land-use ordinance after the deadline may
petition a local board, possessed with great discretion, simply to consider
his untimely request and grant him relief.
 (57 of 57)
Case: 17-17504, 05/06/2020, ID: 11682419, DktEntry: 61-2, Page 29 of 29

PAKDEL V. CITY & CTY. OF SAN FRANCISCO 29

definitive position regarding how it will apply the

regulations at issue to the particular land in question.” Id. at
191.

Moreover, the very City ordinance that allows the

majority to assume that any request to be excused from the
lifetime lease requirement may not have been futile, despite
all practical indications to the contrary, allows the Director
of Public Works to “authorize exceptions to any of the
substantive requirements” in the City Subdivision Code or
regulations. See S.F. Subdivision Code § 1312(a) (emphasis
added). Surely the same discretion that would have allowed
the Director to excuse the Plaintiffs from the lifetime lease
requirement would have also allowed the Director to treat
the Plaintiffs’ waiver requests as timely. At worst, it seems
the Plaintiffs missed a deadline imposed by an ordinance that
the City, through the Director of Public Works, had broad
authority to waive. The City denied these requests for
variances when they were made and has confirmed in the
proceedings before us that there is nothing more that the
Plaintiffs may now do to be excused from the lifetime lease
requirement. By any common understanding of the word, the
City’s decision is final.

In sum, the Plaintiffs twice requested to be excused from

the lifetime lease requirement. The City denied these
requests in a final decision, and the Plaintiffs’ takings claim
is ripe for adjudication. The majority ignores the Plaintiffs’
requests for variances from the lifetime lease requirement
because of when they were made, and elevates adherence to
administrative procedure above the question of whether the
City has reached a final decision. Because of this error in the
majority’s opinion, I respectfully dissent.