On Tuesday, the Ninth Circuit denied en banc review of a divided panel ruling (in Pakdel v. City of San Francisco) that held that a takings challenge was “unripe” because plaintiffs failed to avail themselves of a previously existing opportunity to apply for an exemption. But as Judge Daniel P. Collins (joined by eight other judges) explains in his dissent from the denial of rehearing, the panel majority, under the confused rubric of lack of finality, has instead imposed a requirement that takings plaintiffs exhaust state remedies. (The panel dissenter, Judge Carlos Bea, argued similarly.) Such a requirement “directly contravenes” the Supreme Court’s decision just last year in Knick v. Township of Scott and grossly misconceives the distinct finality requirement that remains from Williamson County Regional Planning Comm’n v. Hamilton Bank (1985).
An excerpt from Judge Collins’s dissent (underlining added):
Under the facts of this case, the application of Williamson County’s finality requirement is straightforward. The City has definitively imposed the Lifetime Lease Requirement on Plaintiffs’ property, and there is no further avenue open to them under local law to avoid that. Indeed, Plaintiffs twice requested an exemption from the requirement, and the City rejected both requests. Neither the City nor the panel majority contend that any route of administrative appeal remains available to Plaintiffs. There is therefore no danger that a federal court would have to speculate as to how the City would apply the Lifetime Lease Requirement here. The City’s decision is final, the Lifetime Lease Requirement applies, and Plaintiffs’ suit is ripe. The panel therefore should have remanded the case to the district court for consideration of the merits of Plaintiffs’ claim.