Building Industry Association - Bay Area v. City of Oakland

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BUILDING INDUSTRY ASSOCIATION -
BAY AREA,
Plaintiff-Appellant,
v.
CITY OF OAKLAND,
Defendant-Appellee.
No. 18-15368
D.C. No. 3:15-cv-03392-VC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Submitted August 5, 2019**
San Francisco, California
Before: SILER,*** HAWKINS, and NGUYEN, Circuit Judges.
The Building Industry Association-Bay Area (“BIA”) challenges a 2017
ordinance passed by the City of Oakland, Oakland Mun. Code section 15.78.010,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
AUG 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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et seq., which imposes conditions on certain real estate development projects
within the city. In relevant part, the ordinance requires developers to commit a
small percentage (of up to 1%) of the project budget to displaying art in areas
freely accessible to the public, or, alternatively, to pay that amount directly into a
city fund that is set up to further those public art goals. BIA brought facial
challenges under the Takings Clause of the Fifth Amendment and the First
Amendment, which the district court ultimately dismissed with prejudice for
failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. BIA failed to state a claim under the Takings Clause. It argues that
the ordinance imposes an unconstitutional condition by effectuating an “exaction”
of property in contravention of Nollan v. Cal. Coastal Comm’n, 483 U.S. 825
(1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). However, the “predicate
for any unconstitutional conditions claim is that the government could not have
constitutionally ordered the person asserting the claim to do what it attempted to
pressure that person into doing.” Koontz v. St. Johns River Water Mgmt. Dist., 570
U.S. 595, 612 (2013). We find that the Ordinance conditions, which merely
regulate how developers may use their property rather than forcing developers to
cede property rights to the city, do not facially amount to a taking. See Penn Cent.
Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). Moreover, even

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assuming that they did, BIA is precluded by our precedent from raising its claim in
this posture, both because it is a facial claim and because the claim challenges a
legislative act, rather than an adjudicative land-use determination. See McClung v.
City of Sumner, 548 F.3d 1219, 1228 n.4 (9th Cir. 2008), abrogated on other
grounds by Koontz, 570 U.S. 595; Garneau v. City of Seattle, 147 F.3d 802, 811
(9th Cir. 1998). We thus affirm dismissal of this claim.
2. Similarly, the BIA failed to state a facial claim under the First
Amendment. We agree that the First Amendment is likely implicated: that is, we
cannot say that displaying or subsidizing art is purely conduct without expressive
content. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 706–07 (1986). However,
that the First Amendment is implicated does not alone necessitate analysis under
exacting scrutiny. We find the compelled speech precedents put forth by BIA
inapposite to the regulatory framework at hand. For example, the ordinance does
not endorse any specific viewpoint, see, e.g., Wooley v. Maynard, 430 U.S. 705
(1977), nor does it compel the subsidy of private speech, see, e.g., Janus v.
AFSCME, 138 S. Ct. 2448 (2018). In fact, given that the ordinance as a whole
preserves wide latitude and flexibility for developers, we decline to hold that it
necessarily “compels” speech, at least not in this facial challenge. As such, the
district court did not err by applying the lower form of scrutiny set forth in
Zauderer, or by concluding that Oakland’s policy satisfies this review because the

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ordinance is “reasonably related” to the city’s legitimate interests in improving the
city’s aesthetics and raising real estate property values. See Zauderer v. Office of
Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985). We
accordingly affirm dismissal of this claim as well.
AFFIRMED.

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