                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 22 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL MEAD,                                    No. 09-15005

             Plaintiff - Appellant,              D.C. No. 4:08-cv-03585-CW

  v.
                                                 MEMORANDUM *
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.




                    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.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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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