Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1988)

MEMORANDUM^* 

Santa Fe Land Improvement Company appeals the dismissal of its regulatory taking claim brought pursuant to 42 U.S.C. § 1983 (1982). The district court determined that Santa Fe's claim was not ripe for judicial adjudication and dismissed for lack of subject matter jurisdiction. We affirm.

Santa Fe owns approximately 125 acres of undeveloped real property adjacent to the shoreline of San Francisco Bay in the City of Berkeley. Santa Fe is the only private owner of real estate on the Berkeley waterfront. The adjacent property, owned by the city, has been leased for a hotel and convention complex, office buildings, three restaurants, three sailing clubs, a boat repair yard and a 1,000-berth commercial marina.

Since 1971, Berkeley has rejected all development proposals put forward by Santa Fe. Santa Fe formally resubmitted an amended use permit application in 1985. The application was promptly rejected. Santa Fe appealed the decision to the City Council. The City Council scheduled a hearing on Santa Fe's appeal for June 4, 1985, but instead adopted an interim Urgency Ordinance establishing a 45-day moratorium on the issuance of any development permits for the waterfront. The City Council subsequently extended the permit moratorium to December 31, 1985, and then again to July 31, 1986.

On July 25, 1985, Berkeley directed its EIR consultant to recommend 500,000 square feet of total floor area development on plaintiff's 7,500,000 square feet of waterfront property. On September 12, 1985, the EIR consultant presented Berkeley with the "Berkeley Waterfront Plan Preferred Alternative" calling for 705,000 square feet of development. On February 12, 1986, Berkeley publicly adopted a "Revised Preferred Alternative" providing for 565,000 square feet of development and recommending that the central Meadow and Brickyard areas of Santa Fe's property be acquired for public recreation and open space uses.

On October 7, 1986, Berkeley culminated its Phase 2 Planning Process with the adoption of the Berkeley Waterfront Plan Amendment to the Master Plan (Waterfront Plan) and the Berkeley Waterfront Specific Plan (Specific Plan), both of which incorporated the provisions of the Revised Preferred Alternative. The Waterfront Plan states that the "Specific Plan constitutes the City's zoning for the Waterfront...." The Specific Plan enumerates in great detail the density, location, coverage, and specifications of development permissible on Santa Fe's property, and establishes a permit application process for such development.

The terms of the Waterfront Plan and the Specific Plan were endorsed by "Berkeley Measure Q," an initiative zoning ordinance passed by the city's voters on November 4, 1986. Measure Q stipulates that its specific terms shall not be amended or repealed except by vote of the people. Measure Q further provides that it shall not be construed to authorize a taking of private property for public use, or to implicate the constitutional rights of any property owner.

Santa Fe contends that Measure Q constitutes the final and immutable determination of the type and intensity of development legally permitted on its waterfront property and that, given the final and immutable nature of Measure Q, no recognized principle of ripeness bars Santa Fe from going forward with litigation. Santa Fe's claim that Measure Q effected a taking as applied to its property does not, however, present a concrete controversy ripe for adjudication. Santa Fe must first submit a development plan or apply for a land use permit. See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 348 (1986); Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985); Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1453, amended, 830 F.2d 968 (9th Cir. 1987), cert. denied, 108 S. Ct. 775 (1988).

Santa Fe, to initiate its regulatory taking claim, must first establish (1) that after Measure Q was adopted, a specific development plan was rejected, (2) that the rejection constituted a taking of its property, and (3) that any compensation tendered is unjust. MacDonald, 477 U.S. at 348; Kinzli, 818 F.2d at 1453.

In establishing the first element of its regulatory taking claim, Santa Fe must demonstrate that "a final and authoritative determination of the type and intensity of development legally permitted on the subject property [has been rendered]." MacDonald, 477 U.S. at 348. Without satisfaction of this prerequisite, it would be impossible to began assessing whether Measure Q goes too far:

[T]he difficult problem [is] how to define "too far," that is, how to distinguish the point at which regulation becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession.... [R]esolution of that question depends, in significant part, upon an analysis of the effect ... of the ... regulation [] had on the value of [the] property and investment-backed profit expectation. That effect cannot be measured until a final decision is made as to how the regulation [] will be applied to [the] property.

Williamson, 473 U.S. at 199-200 (footnote omitted). Similarly, we cannot determine whether Berkeley has failed to provide just compensation until we know what, if any, compensation the responsible city administrative body intends to provide. See id. at 195.

To surmount the final decision bar, Santa Fe's taking claim must reflect an already rejected development plan and a denial of a variance. See Herrington v. County of Sonoma, 834 F.2d 1488, 1494 (9th Cir. 1987); Kinzli, 818 F.2d at 1454. At the heart of this requirement is a showing of "concrete harm" upon Santa Fe as a landowner.

Santa Fe says it has not attempted to secure either a rejected plan or a variance denial following the enactment of Measure Q because to do so would be futile. Futility may be true, as a practical matter, but Santa Fe must go through the formal procedure before the action will lie. The final decision bar applies.

The Supreme Court in MacDonald has indicated that at least one meaningful application¹  must be submitted before the futility exception applies.²  477 U.S. at 352-53 n. 8; American Savings & Loan Association v. County of Marin, 653 F.2d 364 (9th Cir. 1981) (submission of a development application would not be futile where landowner had failed to submit an application). Because Santa Fe has failed to submit a meaningful application under the new ordinance, the futility exception does not apply to circumvent the final decision bar to its taking claim.³  See Lake Nacimiento Ranch Co. v. San Luis Obispo County, 841 F.2d at 872-77 (9th Cir. 1987), petition for cert. filed, June 22, 1988; Kinzli, 818 F.2d at 1455 n. 6. Consequently, we need not address the remaining questions that can be presented after ripeness is satisfied. The district court correctly determined that Santa Fe's regulatory taking claim was not ripe for consideration.

AFFIRMED.