                                                                          FILED
                                                                           AUG 19 2011

                           NOT FOR PUBLICATION                         MOLLY C. DWYER, CLERK
                                                                        U .S. C O U R T OF APPE ALS



                    UNITED STATES COURT OF APPEALS

                           FOR THE NINTH CIRCUIT



CONKLIN DEVELOPMENT and                         No. 10-35322
ROBERT J. HEITMAN, JR.,
                                                2:09-cv-00070-FVS
             Plaintiffs-Appellants,

  v.                                            MEMORANDUM *

CITY OF SPOKANE VALLEY,

             Defendant-Appellee.


                   Appeal from the United States District Court*
                      for the Eastern District of Washington
                    Fred Van Sickle, District Judge, Presiding

                       Argued and Submitted July 12, 2011
                              Seattle, Washington



Before: CLIFTON, N.R. SMITH, Circuit Judges, and KORMAN, District Judge**




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District Judge,
Eastern District of New York, sitting by designation.
      Robert Heitman (“Heitman”), a professional real estate developer and manager

of land development company Conklin Development, owned a 5.4 acre tract of land

in the City of Spokane Valley in Washington State. On September 5, 2007, Heitman

submitted an application requesting that the City of Spokane Valley segregate his

property to effectuate the sale of 2.3 acres to the Spokane Valley Library District

(“Library”). The City approved Heitman’s request, but required the recording of a

title notice memorializing the fact that at some unspecified date the City intended to

acquire a strip comprising 10,400 square feet on the south-side of Heitman’s property

and bounding a roadway that the City planned to expand in the future. The land

referenced in the title notice is referred to as the “Future Acquisition Area” (“FAA”).

      Heitman appealed the City’s conditional approval of the land segregation and

imposition of the FAA title notice to the City’s land-use hearing examiner, who

affirmed the basis by which the City approved the land division and title notice

recording requirement, but required an amendment to the title notice indicating that

the City must pay fair value for the land when it takes the land to construct the

roadway. Moreover, Heitman’s agreement with the Library provided that he was

entitled to any compensation it received if the land was actually taken. Nevertheless,

Heitman argues that, as a result of the 25-foot wide FAA on the southern boundary of

the parcel for sale to the Library District, he had to modify his original sale agreement

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with the Library to include an additional 25-foot strip of land on the north-side of his

property. This alleged injury provides the basis for his action pursuant to 42 U.S.C.

§ 1983, which the district court rejected, alleging an inverse condemnation and an

unconstitutional land-use exaction.1

       The inverse condemnation claim is based on the allegation that the title notice

deprived Heitman of all use of the land subject to the FAA and of the right to exclude

others from it in a manner equivalent to “physical occupation” of the land. Although

the Supreme Court has held that any physical invasion of private property by the

government is a taking and entitles the owner to “just compensation,” see, e.g.,

Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 499 n.27 (1987), such

an invasion requires that the owner be “dispossess[ed] . . . of the rights to use, and

exclude others from, his property.” Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 436 n.12 (1982).

       The FAA does not “dispossess” Heitman of his right to use and exclude others.

See id. In fact, the title notice makes clear that the FAA remains “private property”

until the City decides to expand the roadway and pays fair market value for the land.

It is only when this occurs that a taking via physical invasion may be established and

       1
          The panel expresses no opinion as to how the City’s land-use restriction would fare under
the fact-intensive balancing analysis outlined in Penn Central Transportation Co. v. City of New
York, 438 U.S. 104 (1978).

                                                3
just compensation will be due.

      Nor does the hearing examiner’s conditioning the segregation of his land on the

issuance of the FAA title notice constitute an unconstitutional adjudicative land-use

exaction.   Such an exaction is one in which the “government demands that a

landowner dedicate an easement allowing public access to her property as a condition

of obtaining a development permit.” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528,

546 (2005). Under the holdings in Nollan v. California Coastal Comm’n, 483 U.S.

825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994), an “adjudicative

exaction requiring dedication of private property” is valid if it is related to and

“‘roughly proportional’ . . . both in nature and extent to the impact of the proposed

development.” Lingle, 544 U.S. at 547 (internal quotations and alterations omitted).

The applicability of the Nollan/Dolan framework is limited, however, to adjudicative

land-use exactions “requiring dedication of private property” where a per se physical

taking has occurred. Id. (emphasizing that Nollan/Dolan has not been extended

“beyond the special context” of adjudicative land-use exactions that “involved

dedications of property so onerous that, outside the exactions context, they would be

deemed per se physical takings”). Our holding that there was no such physical

occupation of the land in this case is sufficient to dispose of Heitman’s takings claim.

AFFIRMED.

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