[00:00:00] Speaker 02:
Thank you, your honor.

[00:00:02] Speaker 02:
May it please the court.

[00:00:03] Speaker 02:
This is Catherine Veloy for the appellate Felix Mendelson.

[00:00:06] Speaker 02:
I'd like to reserve three minutes for rebuttal.

[00:00:09] Speaker 02:
Your Honor, we're here today because Mr. Mendelson trusted the county, and yet the county now wants to fault him for doing so, arguing that Mendelson should have known better than to follow its takings analysis procedure.

[00:00:20] Speaker 02:
But the county should be held to its word, and Mr. Mendelson's takings claim held to be ripe under the Supreme Court's relatively modest ripeness standard, because the county has made clear to a reasonable degree of certainty via its silence

[00:00:35] Speaker 02:
that Mr. Mendelson would never be able to develop his riparian zone law.

[00:00:39] Speaker 01:
So I'm having a hard time trying to understand that because how was it that Mr. Mendelson gave them an opportunity to respond and how was it that he received a definitive answer that he was not allowed?

[00:00:57] Speaker 02:
Your honor, under the county's own website, which it holds out, smcgov.org, the website states that any intention to proceed with an application for development that would run counter to the LCP residential ban, any individual must first be thoroughly reviewed by the county development director.

[00:01:17] Speaker 01:
Was that in your complaint?

[00:01:17] Speaker 02:
Yes, Your Honor, it was, and it's listed in the complaint on paragraph 18, 29, 30, and then it's discussed in the district court in the plaintiff's opposition to motion to dismiss on page 10, 14, and 15.

[00:01:30] Speaker 01:
In your request, I guess, what was it that you plead in your complaint that Mr. Mendelson did in terms of

[00:01:37] Speaker 01:
who did they send the request to, what was said, any of those details to indicate that this was a request and that they didn't respond.

[00:01:51] Speaker 02:
Your Honor, we're here on notice pleading and Mr. Mendelson says on paragraph 29, page 8,

[00:01:56] Speaker 02:
that he requested a takings analysis through the county's alternative procedure.

[00:02:00] Speaker 02:
This is the procedure that the county listed on its website.

[00:02:03] Speaker 04:
I'm sorry, but you said that you mentioned the website in your complaint, but I'm looking at those paragraphs and I don't think you mentioned the website.

[00:02:09] Speaker 02:
It doesn't say the website, Your Honor.

[00:02:10] Speaker 02:
That word is not used, but it discusses the alternative procedure, the takings analysis, which is the website in this case.

[00:02:18] Speaker 04:
I mean, how do we know that?

[00:02:19] Speaker 04:
It's so vague.

[00:02:20] Speaker 04:
How do we have any idea that was referring to this statement on the website?

[00:02:25] Speaker 02:
Well, Your Honor, that's the only alternative takings analysis that exists.

[00:02:29] Speaker 02:
The CDP has no opportunity or any example to actually seek a takings exception.

[00:02:35] Speaker 00:
This analysis the government holds out on its website is the only option that an individual has to actually- How can we consider that even now on appeal given that that's not in the complaint and it seems to be a critical sort of avenue or fact for purposes of the argument that you're making today?

[00:02:54] Speaker 02:
Well, again, Your Honor, this is a notice pleading, and he mentions this takings analysis in the light most favorable to Mr. Mendelson.

[00:03:01] Speaker 00:
You're right.

[00:03:01] Speaker 00:
It's a notice standard.

[00:03:04] Speaker 00:
But as Judge Friedland pointed out, I'm also looking at paragraphs 29 and 30 of the complaint at ER 210, and I see no mention of the website.

[00:03:13] Speaker 02:
The word website is not used.

[00:03:15] Speaker 02:
The takings analysis through the county's alternative procedure is the reference to the website.

[00:03:21] Speaker 00:
Can you point me to where it says the county's alternative

[00:03:28] Speaker 01:
And do you describe that alternative procedure?

[00:03:31] Speaker 02:
We do, Your Honor.

[00:03:32] Speaker 02:
They describe the alternative procedure in detail in the actual opposition to the defendant's motion to dismiss.

[00:03:38] Speaker 02:
But in paragraph 29.

[00:03:40] Speaker 02:
No, no, no.

[00:03:40] Speaker 01:
In your complaint?

[00:03:42] Speaker 02:
In the complaint, it discusses that the alternative procedure, it says submitted the request to the count.

[00:03:47] Speaker 01:
First of all, tell me where.

[00:03:49] Speaker 02:
In paragraph 29 and 30, there is the discussion that Mendelson submitted the request to the county staff to perform a takings analysis.

[00:03:57] Speaker 02:
The request represented an opportunity for the county pursuant to a procedure it created and made available to the public to assess whether and the extent to which lots four through seven could be developed.

[00:04:10] Speaker 02:
He then goes on to say in paragraph 30 that he tried repeatedly to obtain this analysis over the following six months.

[00:04:17] Speaker 02:
We can get additional information when discovery is completed in this case to actually how that was done.

[00:04:23] Speaker 04:
So you need discovery usually when you need to ask the other side something, but it's in your client's possession what he did.

[00:04:31] Speaker 04:
I mean, if he sent an email, he could describe the email.

[00:04:33] Speaker 04:
If he made a call, he could describe the call.

[00:04:37] Speaker 04:
We don't have any idea what he did really.

[00:04:39] Speaker 01:
Except submitted a request.

[00:04:40] Speaker 01:
That's the word in the complaint.

[00:04:42] Speaker 02:
Yes, submitted a request.

[00:04:44] Speaker 02:
Submitted a request.

[00:04:45] Speaker 01:
Was that a conversation, counsel?

[00:04:47] Speaker 02:
Your Honor.

[00:04:48] Speaker 01:
Was that a phone call, counsel?

[00:04:49] Speaker 02:
Your Honor.

[00:04:50] Speaker 01:
What was it?

[00:04:51] Speaker 02:
It doesn't go into detail as to whether or not it actually was done, but we're confident that discovery will show a substantial indication of what he actually went through and did in this case.

[00:05:00] Speaker 04:
But can you explain why you need discovery to find out from your own client what he did?

[00:05:04] Speaker 02:
Your Honor.

[00:05:05] Speaker 02:
On this notice pleading standard, what we're asking is that the county that for a reasonable degree of certainty that he be allowed to go into this additional information.

[00:05:14] Speaker 00:
So I think the difficulty that we're having with this argument that you're making is that typically you would file an application for a permit that would be denied that could result in a claim that your client could bring to challenge the denial.

[00:05:28] Speaker 00:
Absent the filing of an application, you're arguing that there is some alternative procedure that the county itself has offered or made available.

[00:05:38] Speaker 00:
And it's that argument that has no support that we can find in the record.

[00:05:43] Speaker 00:
So if there is, because all of this relates to a ripeness issue, which is if you haven't actually made an application that has been denied, we have to know whether or not there was a legitimate alternative procedure, which you keep saying, but that language, that allegation, that's a threshold allegation that the county made an alternative procedure available to the public that your client utilized that procedure and still was not given.

[00:06:13] Speaker 00:
the analysis that he was requesting.

[00:06:15] Speaker 02:
That's correct, Your Honor.

[00:06:16] Speaker 02:
And in the light most favorable to Mr. Mendelson, the term takings analysis that he submitted the request should be viewed as enough to get past notice pleading.

[00:06:25] Speaker 02:
But even if it wasn't, then we would ask that this court allow us to amend the complaint to simply put the word website in to explain what he did in more detail.

[00:06:33] Speaker 04:
But, under this notice pleading standard- I didn't see you ask or explain what you would amend with.

[00:06:41] Speaker 04:
Are you now, today, telling us what you could amend with to make this clearer?

[00:06:46] Speaker 02:
Your Honor, we could amend by putting exactly what Mr. Mendelson did for the website procedure, who he contacted, additional information.

[00:06:54] Speaker 02:
And what would that say?

[00:06:57] Speaker 02:
Sorry that there's a bug.

[00:06:58] Speaker 02:
I'm not sure what's happening with that.

[00:07:01] Speaker 02:
Your honor, it would go into more detail about who he contacted.

[00:07:07] Speaker 02:
But your honor, the fact is that the county has held out this procedure, has included obligatory language, must first go through it.

[00:07:14] Speaker 02:
And this is the only procedure available.

[00:07:16] Speaker 04:
Well, that is definitely not true.

[00:07:18] Speaker 04:
The procedure available is to file a regular application, and there's clear procedures for that.

[00:07:24] Speaker 02:
There is an application for a CDP, but not to get a takings exception to 310.

[00:07:28] Speaker 02:
There is no information.

[00:07:31] Speaker 02:
The county has no form, no worksheet, nothing to seek an exception to 310.

[00:07:37] Speaker 04:
Okay, so how do you deal with California law and McAllister?

[00:07:43] Speaker 04:
Because California law says very clearly that the county either has to grant this thing or figure out a way to give you an exception so that they don't have to pay a takings claim.

[00:07:53] Speaker 04:
And McAllister says that and you don't deal with McAllister in your brief as far as I can tell.

[00:07:57] Speaker 04:
So it seems like California has said that when you make this kind of application, there may be an exception because otherwise they have this problem under the McAllister case.

[00:08:05] Speaker 02:
Your honor, that's correct that McAllister does say that.

[00:08:07] Speaker 02:
And potentially, I mean, we assume in our brief, even for that, we include a footnote saying that even assuming that, why would Mr. Mendelson in this case have to actually go through that procedure?

[00:08:21] Speaker 04:
But even assuming that- Well, okay, you might not like the procedure, but that's an entirely different kind of claim.

[00:08:25] Speaker 04:
Like, you're claiming you did the procedure and got a denial, and it doesn't seem like you did the procedure.

[00:08:31] Speaker 02:
Your Honor, but the procedure here for the CDP application, it specifically says what needs to be included.

[00:08:37] Speaker 02:
In that inclusion, there is no mention of seeking a 310 exception.

[00:08:42] Speaker 02:
There's nothing.

[00:08:43] Speaker 02:
There's no website, or I'm sorry, there is a website, but there's no form, there's no worksheet.

[00:08:49] Speaker 02:
Is Mr. Mendelson simply supposed to do a takings analysis and append it to the end of the CDP application?

[00:08:54] Speaker 02:
There's nothing.

[00:08:55] Speaker 04:
Well, doesn't California law under Macalester say that basically the county

[00:08:59] Speaker 04:
has to do it itself because it's not allowed to.

[00:09:02] Speaker 04:
It has to figure out how to help him or get or try to avoid paying a takings claim.

[00:09:07] Speaker 02:
It says that it has to do something, but it doesn't go into detail about how Mr. Mendelson is supposed to provide this necessary information that the county says it needs.

[00:09:15] Speaker 02:
And in the county's brief, they say that multiple times.

[00:09:17] Speaker 02:
Mr. Mendelson just needs to provide the necessary information and we would give him an answer.

[00:09:22] Speaker 02:
But there's no way to provide it according to the county's own CDP application.

[00:09:26] Speaker 02:
There's no way to seek a 310 exception.

[00:09:29] Speaker 02:
What information does he need to provide to prove taking?

[00:09:33] Speaker 02:
Doesn't the county have some duty to show?

[00:09:36] Speaker 02:
how to take a 310 exception.

[00:09:38] Speaker 02:
And in this case, when Mr. Mendelson found nothing, he turns to the county's website, not BuzzFeed, not WikiHow, but the county's website.

[00:09:45] Speaker 04:
Before, I mean, you only get the takings claim if they deny the application.

[00:09:49] Speaker 04:
How does he have any idea that when he gives them the information about the land and the water and the plants or whatever, that they're not going to say, fine, build what you want?

[00:09:58] Speaker 04:
How does he have any idea they're not going to do that?

[00:10:00] Speaker 02:
Your Honor, again, how is he supposed to give them this information?

[00:10:04] Speaker 04:
Well, he fills out the application.

[00:10:05] Speaker 02:
The application has no way to seek a 310 exception.

[00:10:09] Speaker 04:
But he only needs the exception if he doesn't get granted the development permit, and he might get granted the development permit.

[00:10:15] Speaker 02:
The 310 exception is needed.

[00:10:17] Speaker 02:
what McAllister discusses is whether or not they have the authority to grant the 310 exception, but that's needed for any LCP here because he is in the riparian corridor.

[00:10:26] Speaker 04:
Well I'm not even sure we know that because the map says this stuff about like the boundaries are unclear and we need the specifics about your land.

[00:10:32] Speaker 02:
Well he has alleged that his property is fully covered by riparian vegetation, paragraph 22, and that his property is fully within the riparian corridor, paragraph 23.

[00:10:42] Speaker 02:
And, Your Honor, in case this affirmative requirement that the county has created for itself ... Is that a bee?

[00:10:49] Speaker 02:
I don't know what it is.

[00:10:50] Speaker 00:
It's big.

[00:10:51] Speaker 00:
I'm wondering if maybe we should just pause for a second.

[00:10:53] Speaker 00:
Yeah, maybe we should pause.

[00:10:54] Speaker 04:
There's some kind of bug flying around.

[00:10:55] Speaker 04:
I don't know if there's something we can do.

[00:10:58] Speaker 04:
It's not yellow.

[00:11:00] Speaker 00:
I would be distracted too if there was a bee flying around.

[00:11:05] Speaker 04:
Is there anything we can ... Sorry?

[00:11:10] Speaker 04:
Yeah, maybe if you go back to the table, we can do something about the bee.

[00:11:13] Speaker 04:
Or I don't even know if it's a bee.

[00:11:14] Speaker 04:
It might be a fly.

[00:11:15] Speaker 01:
It's a bee.

[00:11:22] Speaker ?:
I don't know.

[00:11:23] Speaker 04:
That's the first one.

[00:11:23] Speaker 04:
I think it's the first for me as well.

[00:11:26] Speaker 04:
Did it follow you, or is it still at the podium?

[00:11:30] Speaker 02:
Oh, no, it's over here.

[00:11:36] Speaker ?:
It's just a fly.

[00:11:36] Speaker ?:
It's just a fly, I think.

[00:11:44] Speaker 02:
I'm sorry that this happened.

[00:11:48] Speaker 04:
I'm not sure where this bug came from.

[00:11:49] Speaker 04:
Have we gotten rid of it?

[00:12:01] Speaker 01:
Oh, they're fine.

[00:12:06] Speaker 01:
Well, as you get started here, I just want to... You said this in passing, but I just want to be clear.

[00:12:12] Speaker 01:
You would be in agreement to send it back for amendment.

[00:12:15] Speaker 01:
Is that what your argument would be?

[00:12:19] Speaker 02:
Your Honor, we don't believe amendment is... Can we restart the time again?

[00:12:21] Speaker 00:
I'm sorry.

[00:12:21] Speaker 00:
Thank you.

[00:12:22] Speaker 02:
Thank you, Your Honor.

[00:12:23] Speaker 02:
We don't believe amendment is necessary on this notice pleading standard, but if the court believes it is, we would go back and amend our complaint to include those specific allegations.

[00:12:33] Speaker 02:
But Your Honor, again.

[00:12:34] Speaker 04:
So I don't, usually you ask, you say something about asking for leave to amend.

[00:12:40] Speaker 04:
I don't believe you did that here, but if you'd like to do that today, could you, it would be helpful to me to hear a little bit more about what you would say in an amendment so I can figure out if it would actually solve this problem.

[00:12:50] Speaker 02:
Your Honor, we would just include the specific information for how Mr. Mendelson asked who he contacted.

[00:12:55] Speaker 02:
And could you tell me what that would be?

[00:12:56] Speaker 02:
I cannot tell you what that would be right now.

[00:12:59] Speaker 02:
I would speak with him about the specifics to include in this.

[00:13:02] Speaker 00:
beyond beyond what hit the specifics of his request would you be amending the complaint to include specific details about an alternative procedure that was offered by the county for the specific takings analysis that you

[00:13:17] Speaker 02:
claim the county should have provided absent an application we would simply include the word website because it is on the website and it is to this day I checked last night this is still held out as a procedure on the SMC gov dot org that an individual

[00:13:33] Speaker 02:
to who wants to proceed with the CDP application must first be thoroughly reviewed by the county.

[00:13:40] Speaker 01:
But you would include additional information like what was the website you send it to, when did that occur, the period of time that you waited.

[00:13:50] Speaker 01:
There was information in your complaint indicated that for the next six months that there are several attempts, but no specific indication of who they spoke to, what they did.

[00:14:01] Speaker 01:
None of that was in the complaint.

[00:14:03] Speaker 01:
There was just this general notion.

[00:14:05] Speaker 02:
There's no specificity for who he contacted and specifically when, but it does say that he made repeated attempts to get an analysis and to get a response over the last six months.

[00:14:16] Speaker 01:
Do you have any authority that says that this period of silence is enough to indicate that this is a final decision?

[00:14:26] Speaker 01:
In other words, this notion of silence being a final decision.

[00:14:30] Speaker 02:
Your honor, there are many cases that say, including Environmental Defense Fund versus Hardin 428 F2D 1093.

[00:14:37] Speaker 02:
Saying what?

[00:14:38] Speaker 02:
That says that when administrative inaction has precisely the same impact on the rights of the party as denial of relief, an agency cannot preclude judicial review by casting its decision in the form of inaction rather than the form of denying relief.

[00:14:51] Speaker 02:
That's essentially what the county has done here.

[00:14:53] Speaker 02:
It's decided to say nothing to Mr. Mendelson, no smoke signal, no email.

[00:14:58] Speaker 02:
It could have sent him a five-second call telling him, go ahead and do the formal CDP application, just append your takings analysis to the end of it.

[00:15:05] Speaker 02:
But it did nothing.

[00:15:06] Speaker 02:
And silence in this case should presumptively be a no.

[00:15:10] Speaker 02:
It's certainly not a yes.

[00:15:12] Speaker 02:
I don't know any case that has said that silence should be construed as a yes, go ahead, do what you want to do.

[00:15:16] Speaker 00:
I'm going to ask your counsel on the other side about the website, but can you give me the actual website that you're relying on?

[00:15:24] Speaker 00:
Yes, Your Honor.

[00:15:25] Speaker 00:
It is included.

[00:15:33] Speaker 02:
It is HTTPSSMCgov.org slash planning slash San Mateo County Montecito riparian corridor.

[00:15:43] Speaker 02:
Can you say that again a little slower?

[00:15:45] Speaker 00:
I'm sorry.

[00:15:45] Speaker 02:
Yes SMCgov.org backslash planning backslash San Mateo County Montecito riparian corridor and that website can specifically be found on in our opening brief on page 4 foot 3.

[00:16:01] Speaker 02:
Thank you.

[00:16:02] Speaker 02:
And I'd reserve the rest of my time, Your Honor.

[00:16:04] Speaker 04:
We'll give you some extra time because we'll plan to give you three minutes to make up for this fly.

[00:16:19] Speaker 03:
Good morning, Your Honors.

[00:16:21] Speaker 03:
Lauren Carroll, Deputy County Attorney for Defendant Appellee, County of San Mateo.

[00:16:26] Speaker 03:
I hesitate to get too much into this discussion of the website, because as Your Honors pointed out, it was not alleged in the complaint.

[00:16:35] Speaker 01:
The complaint alleges- So why wouldn't we just let them send it back and have them amend it?

[00:16:40] Speaker 03:
Because, Your Honor, amending the complaint would not cure the ultimate problem, which is that Mr. Mendelson has not received a final decision from the county.

[00:16:49] Speaker 01:
This website- Well, do you have any record of this informal request?

[00:16:54] Speaker 01:
Does the county have any record of this informal request?

[00:16:56] Speaker 03:
I have some information about what happened.

[00:16:59] Speaker 03:
It's outside the record, and I'd be happy to share what I know.

[00:17:01] Speaker 03:
My understanding is that Mr. Mendelson went to the planning counter and filled out a paper form that requested a takings analysis.

[00:17:11] Speaker 03:
I'm not sure how much information was in there, but whatever was included on this paper form was much less than what would be required for the county to reach a final decision, because it did not include any of the information that is complete.

[00:17:25] Speaker 03:
that is necessary to evaluate a development proposal, which is what the county needs in order to reach a final decision.

[00:17:33] Speaker 04:
And then what happened with the paper form?

[00:17:36] Speaker 03:
I'm not sure, Your Honor.

[00:17:38] Speaker 03:
I honestly don't know, Your Honor, why the county didn't respond.

[00:17:42] Speaker 03:
But Mr. Mendelson.

[00:17:43] Speaker 01:
But why can't they then say that's a final decision?

[00:17:46] Speaker 01:
That's a final decision.

[00:17:47] Speaker 01:
They didn't do anything.

[00:17:48] Speaker 01:
And this inactivity was enough.

[00:17:50] Speaker 01:
And under PACDEL, we're fine.

[00:17:54] Speaker 01:
We should be allowed to go forward.

[00:17:55] Speaker 03:
Your honor, it's not a final decision because the county is under no obligation to respond to this request for what Mr. Mendelson calls.

[00:18:03] Speaker 01:
But what is a person supposed to do?

[00:18:05] Speaker 01:
They go to county, this happens all the time.

[00:18:08] Speaker 01:
People go to government agencies, they submit what is in their websites purportedly, and there's nothing, there's silence.

[00:18:16] Speaker 01:
And what is someone supposed to do in that circumstance?

[00:18:19] Speaker 03:
I want to clarify a misconception, Your Honor.

[00:18:21] Speaker 03:
This website does not make any reference to something called a takings analysis.

[00:18:26] Speaker 03:
The language on the website, which was not in the complaint and was not presented to the court until this appeal, says, any intention to proceed with an application for development that would run counter to any of those policies, referring to the LCPs, must first be thoroughly reviewed

[00:18:42] Speaker 03:
by the community development director and county council.

[00:18:45] Speaker 03:
This is nothing more than a truism.

[00:18:47] Speaker 03:
If you go and look at the county zoning regulations, it invites members of the public who are interested in applying for a development permit to have a pre-application conference with the planning director.

[00:18:59] Speaker 03:
And in the application process itself,

[00:19:01] Speaker 03:
there's a lengthy period of time where the planning director is reviewing the proposal.

[00:19:06] Speaker 03:
And even then, in the zoning regulations for this pre-application conference, it's still necessary for the county to have some information about what this potential development is going to look at.

[00:19:17] Speaker 00:
And the language that you're citing on the website still refers to an application.

[00:19:22] Speaker 00:
It says, any intention to proceed with an application for development that would run counter to those policies

[00:19:29] Speaker 00:
must first be thoroughly reviewed by the community development director.

[00:19:33] Speaker 00:
So what you're saying is the requirement for an application is not changed.

[00:19:37] Speaker 00:
There's not an alternative procedure for getting a takings analysis.

[00:19:41] Speaker 00:
You have to file the application.

[00:19:43] Speaker 00:
You may be able to, if it's going to run afoul of the policies, you can speak to somebody about whatever your application is going to say.

[00:19:50] Speaker 00:
But it doesn't somehow negate the requirement of an application.

[00:19:55] Speaker 03:
That is precisely right, Your Honor.

[00:19:56] Speaker 03:
Nothing in this language on the county website suggests that this is an alternative procedure by which a potential developer can just bypass the county's typical application processes.

[00:20:08] Speaker 04:
So I think that's probably the better reading of this website, what you just said and what I just said.

[00:20:14] Speaker 04:
But I don't think it's that clear.

[00:20:16] Speaker 04:
I mean, I do think it is possible, and they're making an argument that you could read it and think there's something you're supposed to do to go to the development director and county council.

[00:20:25] Speaker 04:
Let's just for a moment assume this is ambiguous somehow.

[00:20:29] Speaker 04:
When he tries to give this paper form, why isn't there some obligation on the county's part to clarify what the process is for him?

[00:20:38] Speaker 04:
He's done something that's the wrong process according to you or an irrelevant process.

[00:20:42] Speaker 04:
Why isn't there some obligation to say, that was wrong, you're supposed to do this application?

[00:20:47] Speaker 03:
Again, Your Honor, I'm speculating a little bit here because I don't know exactly why the county didn't respond.

[00:20:52] Speaker 03:
I don't know who Mr. Mendelson's request was forwarded to and who was perhaps the correct person to receive that.

[00:21:01] Speaker 03:
But what we know from the complaint is that Mr. Mendelson requested a takings analysis.

[00:21:07] Speaker 03:
There's nothing in the county's regulations or on the website that suggests that this somewhat preliminary or early stage review by the community development director or the planning director is the same thing as a takings analysis.

[00:21:23] Speaker 03:
Again, I'm speculating, but I'm not sure what in that request would set a light bulb off in the minds of planning staff that, oh, Mr. Mendelson wants to develop his property

[00:21:35] Speaker 03:
let's start to tell him how to engage in the development process.

[00:21:40] Speaker 03:
And there's no evidence in the record from the complainer otherwise that Mr. Mendelson ever reached out and said, hey,

[00:21:47] Speaker 03:
I want to develop my property.

[00:21:48] Speaker 03:
Can we talk about it or ask about it in any different way?

[00:21:51] Speaker 01:
Well, let's say that we allowed for amendment.

[00:21:53] Speaker 01:
I'm not suggesting that that's what we do, but let's say that we allowed for amendment and they included, well, on this date I went in and I filled out this paperwork.

[00:22:02] Speaker 01:
I included this information.

[00:22:04] Speaker 01:
I gave it to said person.

[00:22:07] Speaker 01:
I then followed up the next six months with this person on this date, this person on this date, this person on this date, and I received nothing.

[00:22:13] Speaker 01:
Would that satisfy the issues that are raised in this complaint?

[00:22:21] Speaker 03:
I think, Your Honor, it would depend on exactly what was provided and what was requested.

[00:22:28] Speaker 03:
I guess in a rare circumstance, I can imagine a scenario where enough time has passed and enough effort has been made by the plaintiff at which silence from the county would maybe satisfy Packdell and be considered de facto finality.

[00:22:46] Speaker 03:
But if you look at the decades of case law on the final decision rule, there is not a single case that Ms.

[00:22:53] Speaker 03:
Velloy has cited that shows an example of somebody being able to establish finality before they have received a final decision on a development application.

[00:23:04] Speaker 00:
How can it be de facto finality in this case if the request is for a takings analysis

[00:23:13] Speaker 00:
but the application is for development.

[00:23:15] Speaker 00:
So we would have, under Pacdel, a de facto finality if there had been a request to develop.

[00:23:21] Speaker 00:
Say he submitted a paper form that said, I'd like to develop my property, and then enough time passes where the county provides no response whatsoever.

[00:23:30] Speaker 00:
Perhaps that reaches the threshold for finality.

[00:23:34] Speaker 00:
But if a paper form is filed on a completely separate

[00:23:39] Speaker 00:
I think that's what you're saying, which is nobody at the county would have any idea that the request for a takings analysis is the equivalent of filing an application for development.

[00:23:48] Speaker 03:
I think that's exactly right, Your Honor.

[00:23:50] Speaker 03:
So as I said to Judge Mendoza, I can imagine a scenario perhaps in which a local agency's silence in response to repeated attempts to get an answer could be helpful.

[00:24:01] Speaker 03:
Get an answer to what?

[00:24:03] Speaker 03:
To a development application and to a proposal to develop.

[00:24:06] Speaker 03:
perhaps reaching out to get this pre-development conference that's provided for in the zoning regulations.

[00:24:12] Speaker 03:
But that is simply not the case here.

[00:24:15] Speaker 03:
In this case, I do not believe, based on my understanding of what has happened in this case and the allegations in the complaint, I don't believe there's any way that Mr. Mendelson could amend his complaint that could make this case right.

[00:24:28] Speaker 00:
Because- So let me ask a different version of the question I think Judge Mendoza's asking, which is, and I think you answered.

[00:24:34] Speaker 00:
What if the plaintiff had an opportunity to amend?

[00:24:36] Speaker 00:
But should we even consider at this stage the request for an amendment?

[00:24:42] Speaker 00:
Has there been a waiver?

[00:24:43] Speaker 00:
It was not requested below, and it wasn't even raised, as I understand, in the opening brief.

[00:24:47] Speaker 03:
No, Your Honor.

[00:24:48] Speaker 03:
In that regard, the court should not consider a request to amend, and I don't believe that Mr. Mendelson has alleged that amendment would be fruitful.

[00:24:58] Speaker 03:
I believe that Mr. Mendelson has alleged that what is in the complaint is sufficient, and that this is more of a legal argument rather than a factual argument.

[00:25:09] Speaker 03:
I also want to emphasize the importance of filing a full development application in this case to further underscore why there is no way that Mr. Mendelson could amend this complaint to

[00:25:20] Speaker 03:
create a final decision.

[00:25:21] Speaker 03:
At this stage, we do not know even whether to what extent these regulations might apply.

[00:25:28] Speaker 03:
Mr. Mendelson alleges that the property is covered in riparian vegetation, but the LCP regulations say there's a specific amount, at least 50% of riparian vegetation create a riparian corridor.

[00:25:40] Speaker 03:
And it says on the map that Mr. Mendelson cites on the website that's now part of this discussion,

[00:25:46] Speaker 03:
and in the regulations themselves that biological surveys, boundary studies, all of this detailed information is necessary in order to first determine whether the riparian corridor is on Mr. Mendelson's property and how much of the property is covered in the riparian corridor.

[00:26:03] Speaker 03:
And that's also necessary for the government, if necessary, to engage in this discretionary analysis under Section 310.

[00:26:11] Speaker 03:
Because without that information about exactly what's on the property, the government is unable to determine, let's say, it is hard to develop on this property under the regulations.

[00:26:22] Speaker 03:
Perhaps there's something we can do to situate the proposed development on the property in a way that would have less of an impact.

[00:26:30] Speaker 03:
on the riparian corridor and the county could exercise its discretion under section 310.

[00:26:34] Speaker 03:
But it simply cannot do that without Mr. Mendelson submitting a full development application, which he has yet to do.

[00:26:41] Speaker 04:
Can I ask, so this case had an earlier appeal that was then remanded.

[00:26:45] Speaker 04:
And in the oral argument and the earlier appeal, there were a bunch of questions about an informal process.

[00:26:50] Speaker 04:
And it seemed, I actually don't remember if it was you or- It was your honor.

[00:26:55] Speaker 04:
So the county seemed to be acknowledging that there was an informal process in answer to the questions from the previous panel.

[00:27:03] Speaker 04:
What informal process were you talking about?

[00:27:06] Speaker 03:
To be honest, Your Honor, having gone back and rewatched, and my memory's a little fuzzy from it, but what I think I was trying to say is that in this you discussed with Ms.

[00:27:18] Speaker 03:
Villoy, the concept that the county can conduct this takings analysis, and that's Mr. Mendelson's words, but can conduct a legal analysis,

[00:27:30] Speaker 03:
in consultation with county council about whether a taking might occur if development were to be prohibited.

[00:27:37] Speaker 03:
So it might be, I might have been discussing that, and maybe informal's not the right word for that.

[00:27:42] Speaker 03:
However, and this might get us to the related case Rolston.

[00:27:47] Speaker 04:
I think their brief was quoting that oral argument.

[00:27:50] Speaker 04:
So in their brief, they talk about this informal process that the county acknowledged existed in the last appeal.

[00:27:56] Speaker 04:
So you don't remember thinking about what they meant?

[00:27:59] Speaker 03:
Your Honor, I think it's possible that I was referring to the county does occasionally engage in less formal conversations with potential applicants in order to help them navigate the application process.

[00:28:18] Speaker 03:
And I think that's what that's referring to.

[00:28:20] Speaker 03:
And this might tie us back to the Ralston case, the related case here in which the planning director did engage in some email conversations

[00:28:29] Speaker 03:
with a potential developer about the process of applying for a development permit.

[00:28:35] Speaker 03:
I don't want to hold myself too closely to what I said in the prior oral argument, but I think that stands that the county does endeavor to assist applicants to help them navigate the process because these regulations are complicated and they are pretty strict.

[00:28:49] Speaker 03:
And so the county wants to do what it can to help get people through that process.

[00:28:54] Speaker 03:
But ultimately, it can't do that and get to a final decision if it doesn't have any information about the property

[00:29:01] Speaker 03:
And in the Ralston case, those sort of informal communications between the planning director and the potential developer were found not to be a final decision, because that's exactly what they were.

[00:29:13] Speaker 03:
They were informal.

[00:29:14] Speaker 03:
They were preliminary.

[00:29:15] Speaker 04:
That's an unpublished decision, though, so we can't really make much of it, right?

[00:29:19] Speaker 03:
Your Honor, you can't cite it as binding authority, but it is quite persuasive.

[00:29:26] Speaker 03:
quite similar to this case.

[00:29:27] Speaker 03:
And the only difference is that there were some communications between the planning director and the developer in that case.

[00:29:34] Speaker 03:
And so the developer actually had something to point to that said this could be a final decision.

[00:29:38] Speaker 03:
The court disagreed.

[00:29:40] Speaker 03:
Here, there's not even that much.

[00:29:42] Speaker 03:
So the facts in this case are stronger for finding that this case is unripe than Ralston.

[00:29:49] Speaker 03:
And as the district court found in this case,

[00:29:51] Speaker 03:
Even though Ralston was unpublished, the analysis in Ralston applies equally to this case.

[00:29:58] Speaker 03:
Well, if the court doesn't have any further questions, I'll just wrap up briefly by saying that if the court were to allow this case to go forward at this stage, which would go against decades of case law and the final decision rule and the court's most recent decisions on this topic,

[00:30:18] Speaker 03:
That would require the district court to go into or put itself in the county's shoes and speculate as to how the county might have responded to a hypothetical development proposal and eliminate the county's inherent and legally authorized discretion to determine whether and to what extent Mr. Mendelson could develop this property.

[00:30:39] Speaker 03:
And the district court correctly concluded that this case was unripe and this court should affirm.

[00:30:44] Speaker 03:
Thank you.

[00:30:46] Speaker 04:
Thank you.

[00:30:46] Speaker 04:
Let's give, I think I said three minutes for rebuttal.

[00:30:54] Speaker 02:
Thank you, Your Honor.

[00:30:55] Speaker 02:
The county discusses and says that this website requirement is actually a truism.

[00:31:01] Speaker 02:
But the county is the one who wrote it.

[00:31:02] Speaker 02:
The county is the one who included it on the website.

[00:31:04] Speaker 02:
And the county, as you correctly noted in the earlier iteration at the prior panel, holds this out as a process that- Well, it doesn't hold out the website.

[00:31:13] Speaker 04:
I couldn't find any discussion of the website in the prior oral argument.

[00:31:17] Speaker 04:
It just talked about informal process.

[00:31:19] Speaker 02:
informal process, but in the discussion when they're talking about, and Judge Bumate actually says, do you have a requirement to actually answer them, the county is the one that holds out and says, no, they have no requirement to say anything.

[00:31:32] Speaker 02:
They're clearly talking about the website in this case.

[00:31:34] Speaker 04:
I didn't think it was obvious they were talking about the website.

[00:31:36] Speaker 04:
I didn't see anyone mention the website.

[00:31:38] Speaker 04:
I don't know what they were talking about.

[00:31:40] Speaker 04:
The quote on page nine of your brief is the county saying, it's an informal process.

[00:31:47] Speaker 04:
It hasn't been used often as far as I know, once at most.

[00:31:51] Speaker 04:
I mean, I have no idea what that was.

[00:31:53] Speaker 02:
Well, Your Honor, in context, what they're talking about is the website and this procedure that was used.

[00:31:58] Speaker 02:
It's the whole reason why the case was actually remanded to discuss Pacdel in this situation as to whether or not Mr. Mendelson's going through this informal, informal their word process is enough to trigger a taking.

[00:32:11] Speaker 02:
And in light of Pacdel, and especially in light of Palazzolo, and the reasonable degree of certainty standard,

[00:32:17] Speaker 02:
That's all that is required here, a reasonable degree of certainty as to whether or not the case is right.

[00:32:22] Speaker 02:
That silence in the face of this duty to answer that they themselves have created through their own wording must first seek this proposal before actually moving ahead with an application.

[00:32:34] Speaker 02:
That silence should be construed as a no.

[00:32:37] Speaker 02:
And on a notice pleading standard, when he discusses his repeated attempts, or at least states that he made repeated attempts and that he requested this analysis,

[00:32:46] Speaker 02:
and then goes into further detail in the actual.

[00:32:50] Speaker 02:
opposition to the defendant's motion to dismiss, again on pages 14 and 15 of that brief, actually discusses the fact that this is a procedure that the county created in an effort to avoid.

[00:33:03] Speaker 04:
Can you point to where in the ER those pages of the brief are?

[00:33:06] Speaker 04:
I'm not sure I'm familiar with them.

[00:33:08] Speaker 02:
Yes, Your Honor.

[00:33:08] Speaker 02:
It is ER 167 and 168.

[00:33:12] Speaker 02:
And what do you think are the relevant details that it adds?

[00:33:17] Speaker 02:
Well, it discusses his 2019 application to the county.

[00:33:20] Speaker 02:
So it says that the county had instituted this special application process so they can apply for this takings analysis without submitting specific project plans.

[00:33:30] Speaker 02:
Upon application, the county renders a determination as to whether and the extent to which the LCP would allow development on the owner's land, and if development is prohibited, whether the prohibition affects a compensable taking.

[00:33:43] Speaker 04:
And then- All of the citations are just to the complaint, so it's actually not adding anything to the complaint, is it?

[00:33:49] Speaker 02:
Well, Your Honor, I think it provides context into this procedure that Mr. Mendelson went through.

[00:33:54] Speaker 04:
If, again, if the court wishes- I mean, it doesn't say, well, I don't know, what detail do you think it adds?

[00:33:58] Speaker 02:
Your honor, I think it adds that he has gone through this procedure again.

[00:34:01] Speaker 04:
It doesn't say the word says that too, right?

[00:34:04] Speaker 02:
It does, but it doesn't say the word website, but it elaborates on that.

[00:34:08] Speaker 02:
He tried to build on these.

[00:34:09] Speaker 02:
He sought this formal determination from the county on whether or not the county would allow him to move forward with the application as necessity.

[00:34:19] Speaker 02:
says, through the county's own words on the website, any intention to proceed with an application for development must first be thoroughly reviewed by these two individuals.

[00:34:28] Speaker 02:
The two individuals who would do the reviewing.

[00:34:30] Speaker 04:
That's not in the brief, though, the stuff you're now saying about the two individuals on the website, not in the brief you're talking about.

[00:34:35] Speaker 02:
Your Honor, I think it provides context back, again, to the complaint where he mentions this takings analysis.

[00:34:40] Speaker 02:
Takings analysis is just another word for the website, the process that the website held out.

[00:34:44] Speaker 02:
I see my time has expired.

[00:34:46] Speaker 02:
I just briefly ask this court reverse and remand for Mr. Mendelson to continue on this relatively modest standard.

[00:34:54] Speaker 04:
Thank you both sides.

[00:34:55] Speaker 04:
This case is submitted.

[00:34:56] Speaker 04:
The fly's gone.

[00:35:00] Speaker 02:
The fly's gone, I'm glad.

[00:35:03] Speaker 04:
It was up here for a little while.