Here's the latest in a case we've been following. In Pakdel v. City and County of San Francisco, No. 17-17504 (9th Cir. Mar. 17, 2020), a 2-1 panel of the U.S. Court of Appeals held that a federal takings case was not ripe because the plaintiffs had not sought an exemption ("variance") from the regulation.
Now, the property owners have asked the en banc Ninth Circuit in this petition to consider the issue. The panel decision created a "target rich environment" as they say:
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 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).
Petition at 1-2.
Stay tuned. We will be following along.
Appellants' Petition for Rehearing En Banc, Pakdel v. City & County of San Francisco, No. 17-17504 (May 6, 2020)
