How about buying what you thought was a retirement home, only to be told that if you want the local government’s ok change the form of ownership of the property you’ve got to offer any tenant a lifetime lease? Here’s the cert petition, filed today in a case we’ve been following for a while, first as an outside observer, now as a (minor) participant.

This one seeks review of the Ninth Circuit’s ruling in Pakel v. City and County of San Francisco, in which a 2-1 panel affirmed the dismissal of a regulatory takings claim which the District Court threw out for not being ripe under Williamson County‘s “state procedures” requirement, and because the exaction imposed was accomplished by a generally-applicable legislative requirement and not via an administrative action. The Ninth Circuit rejected en banc review with beaucoup judges dissentaling.

Here are the Questions Presented:

Planning for their retirement home, Petitioners (the Pakdels) purchased a tenancy-in-common interest in a six-unit building in San Francisco, which gave them occupancy rights to one unit. In the meantime, they rented the unit to a tenant. The Pakdels’ purchase agreement required them to cooperate with co-owners to convert their tenancy-in-common interests into separately owned condominiums. The City later amended its condo conversion ordinance to require converting owners to offer a lifetime lease to any non-owning tenants. After the Pakdels applied for conversion, the City twice denied their request to be excused from the lifetime lease requirement. A divided Ninth Circuit panel affirmed the dismissal of the Pakdels’ regulatory takings claim, holding that the City’s decision was not “final” under Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), because the Pakdels had not exhausted administrative remedies. The court also affirmed the dismissal of the Pakdels’ unconstitutional conditions claim because the condition was imposed through legislation. With nine judges dissenting, the court denied rehearing en banc.

The questions presented are:

1. Whether a 42 U.S.C. § 1983 takings claim is ripe under Williamson County’s finality requirement when a city has definitively and unalterably imposed a land use regulation on a landowner?

2. Whether the unconstitutional conditions doctrine applies to legislatively-imposed permit conditions?

Stay tuned.

Programming note: we’re going to keep with our informal blog policy of not commenting much about or analyzing our own matters, at least while they are in-process. What we’ll do now is what we’ve always done in these situations: post up the public records such as briefs and court decisions, and perhaps point out what we think are the highlights you should focus on, and then let you check them out yourselves. We’ll leave the analysis to others, the courts included.

Petition for Writ of Certiorari, Pakdel v. City & County of San Francisco, No. ___ (U.S. Feb. 26, 2021)