Michael Mead v. City of Cotati, a municipal corporation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL MEAD,
Plaintiff - Appellant,
v.
CITY OF COTATI, a municipal
corporation; PLANNING COMMISSION
OF THE CITY OF COTATI; UNITED
STATES FISH AND WILDLIFE
SERVICE; DONALD KOCH, in his
official capacity as Director of the
California Department of Fish and Game;
CALIFORNIA DEPARTMENT OF FISH
AND GAME,
Defendants - Appellees.
No. 09-15005
D.C. No. 4:08-cv-03585-CW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Argued and Submitted February 10, 2010
San Francisco, California
Before: GOODWIN, BERZON and IKUTA, Circuit Judges.
FILED
JUL 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Michael Mead, a developer, appeals the district court’s dismissal, on
ripeness grounds, of his takings claims against the City of Cotati (“the City”), the
U.S. Fish & Wildlife Service (“the Service”), and the California Department of
Fish & Game (“the Department”). We affirm.
The Supreme Court has established a two-part ripeness test for Fifth
Amendment regulatory takings claims: (1) “[A] claim that the application of
government regulations effects a taking of a property interest is not ripe 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 of Johnson City,
473 U.S. 172, 186 (1985). (2) “[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.
Mead first objects to the City’s requirement that he mitigate the impact of
his proposed development on the endangered California Tiger Salamander, in
accordance with the Interim Mitigation Guidelines issued by the Service and the
Department. As to this requirement Mead has not met the first prong of the
Williamson County test. As an alternative to complying with the mitigation

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requirements, Mead may hire a licensed biologist to survey his property, following
Service and Department survey guidance. If the survey indicates that no
salamanders are present on the site, then the Service will issue a “no effect” letter,
and the mitigation requirements will be lifted. Although Mead did hire a
consultant to determine the distance of his property from salamander breeding
pools, he has not submitted a properly performed survey to the Service, and the
Service has thus declined to issue a “no effect” letter. Mead does not argue that the
cost of performing a proper survey would amount to a taking. Because Mead has
not received a final determination from the Service as to whether the salamander
mitigation requirements apply to his development project, he has not met the first
prong of the Williamson County test, and his takings claim is therefore not ripe.
Cf. Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 739 (1997) (holding a
takings claim ripe where the relevant agency had “finally determined” that the
petitioner’s land lay entirely within an environmentally sensitive area in which
development was not allowed).
Second, Mead contests the application of the City’s affordable housing
requirements to his project. “[A]ssum[ing] without deciding that the takings claim
is ripe,” McClung v. City of Sumner, 548 F.3d 1219, 1224 (9th Cir. 2008), we
reject Mead’s claim on the merits.

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Mead has several options for complying with the affordable housing
requirement, one of which is to pay an in-lieu fee. See City of Cotati Municipal
Code § 17.31.050. A generally applicable development fee is not an adjudicative
land-use exaction subject to the “essential nexus” and “rough proportionality” tests
of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v.
City of Tigard, 512 U.S. 374 (1994). See McClung, 548 F.3d at 1225. Instead, the
proper framework for analyzing whether such a fee constitutes a taking is the fact-
specific inquiry developed by the Supreme Court in Penn Central Transportation
Co. v. New York City, 438 U.S. 104 (1978). See McClung, 548 F.3d at 1225.
Mead has not alleged facts that would satisfy the Penn Central test; on the
contrary, he insists that his claim is not a Penn Central claim but a Nollan/Dolan
claim. Mead has therefore failed to state a claim on which relief can be granted.
III.
The judgment of the district court is AFFIRMED.

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