Ninth Circuit Rejects Takings Challenge to Affordable Housing Regulations and Endangered Species Protections


The City of Cotati has defeated the Pacific Legal Foundation ("PLF") in a challenge to the City's affordable housing regulations and protections for the endangered California Tiger Salamander ("CTS").

In Mead v. City of Cotati, Ninth Circuit Case No. 09-15005, PLF sued the City and state and federal wildlife agencies on behalf of a housing developer alleging various constitutional claims resulting from two conditions included in the Cotati Planning Commission's decision to issue a permit for his project - (1) comply with the City's affordable housing regulations and (2) comply with guidance issued by the wildlife agencies for the protection of the endangered CTS.

The Pacific Legal Foundation argued that both conditions were exactions and therefore should be analyzed under the takings test set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). They then argued that equitable relief is an available remedy under the Nollan/Dolan test and asked the court to enjoin the City from enforcing the two conditions. The City, represented by Meyers Nave, disagreed and explained that (1) the issues were not ripe for review, (2) a generally applicable development fee is not a land use exaction, and 3) the proper test to determine whether a taking had occurred was the Penn Central test, not the Nollan/Dolan test.

During the litigation, PLF announced on its website that the lawsuit against the City of Cotati was ground zero in its national campaign to eradicate affordable housing regulations and to change takings law in favor of property owners. On July 22, in an unpublished opinion, the Ninth Circuit affirmed the dismissal of the case by the District Court for failure to state a viable claim and rejected PLF's entreaties to soften the takings standards for property owners. In reaching its conclusion, the court agreed with the City on all grounds. This decision reaffirms the viability of the ripeness doctrine and the limited application of the Nollan/Dolan takings test in the Ninth Circuit.

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