Contasti et al v. City of Solana Beach

Filing 9

ORDER: The Complaint is dismissed for lack of subject-matter jurisdiction. No later than 30 days from the date of this Order, Plaintiffs may file a motion for leave to amend the Complaint, accompanied by a proposed amended complaint. If Plaintiffs do not file a motion for leave to amend within thirty days, the Court will order this case to be closed. Signed by Judge William Q. Hayes on 11/10/2009. (mdc) Modified on 11/12/2009 - Okay per chambers. (mdc) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 HAYES, Judge: 17 The matter before the Court is the Motion to Dismiss the Complaint Pursuant to Federal 18 Rule of Civil Procedure 12(b)(6) ("Motion to Dismiss"), filed by Defendant City of Solana 19 Beach ("City"). (Doc. # 5). 20 I. 21 Background On June 25, 2009, Plaintiffs initiated this action by filing the "Complaint for Damages ANDREW CONTASTI, ANNETTE CONTASTI and JOE HERNANDEZ, individuals, vs. CITY OF SOLANA BEACH, Plaintiffs, CASE NO. 09cv1371-WQH-BLM ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Defendant.

22 [42 U.S.C. § 1983]" ("Complaint"). (Doc. # 1). 23 24 A. Allegations of the Complaint Plaintiffs are the owners of two adjoining residential lots (Lots "9" and "10") located

25 at 360 North Granados Avenue, Solana Beach. In February 2007, Plaintiffs applied for 26 building permits (called "Development Review Permits" and "Structure Development 27 Permits") to build a 4,031 square foot two-story dwelling on Lot 9, and a 4,387 square foot 28 two-story dwelling on Lot 10. (Compl. ¶ 11). On July 11, 2007, the City conducted a public
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1 hearing on Plaintiff's applications for building permits on Lot 9 and Lot 10. 2 3 1. Lot 9

On July 11, 2007, the City's engineering and planning staff recommended approval of

4 Plaintiffs' Lot 9 application. At the July 11, 2007 hearing, the City's Mayor and City Council 5 requested Plaintiff Andrew Contasti ("Contasti") to reduce the square footage of the home 6 proposed for Lot 9 by 230 square feet. "Contasti agreed at the hearing to this reduction." 7 (Compl. ¶ 19). "After the July 11 hearing, Contasti submitted revised drawings for Lot 9, 8 reducing the square footage for the proposed Lot 9 home by 256 square feet (instead of the 9 Council-recommended 230 square feet). The permits for Lot 9, based on these revised 10 drawings, were approved by the City." (Compl. ¶ 20). City Resolution 2007-108, "supporting 11 the approval of the home on Lot 9," found that "`[t]he proposed single-family residence is 12 designed in a manner that is compatible with other nearby development because the proposed 13 use is the same as other nearby single-family residences.'" (Compl. ¶ 27). 14 15 2. Lot 10

On July 11, 2007, the City's engineering and planning staff recommended approval of

16 the Lot 10 application. 17 18 19 20 21 22 23 24 25 26 27 28 At the same July 11 hearing, the City Council, notwithstanding the compliance of the proposed Lot 10 home with all City regulations, indicated that it wanted the square footage of the proposed home reduced. However, the Council did not allow Contasti to agree at the hearing to a reduction of the square footage for Lot 10 as it had for Lot 9. Nor did the City Council give Contasti any guidance about the amount of square footage it wanted reduced. Instead, the City Council advised Contasti to `take his best shot' in submitting a reduced square-footage home. (Compl. ¶ 23). After the July 11, 2007 hearing, "Contasti caused his project designer to redesign the Lot 10 home by reducing the square footage by 258.25 square feet. Revised drawings reflecting this reduced square footage were submitted to the City." (Compl. ¶ 24). At a September 19, 2007 hearing, "the City denied plaintiffs' proposed home on Lot 10." (Compl. ¶ 26). City Resolution 2007-125, "supporting the denial of the home on Lot 10," states: "`The proposed single-family residence is designed in a manner that is incompatible with other nearby residences because it is not compatible with existing or potential future single family
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1 development.'" (Compl. ¶ 28). "This ground for denial is both tautological and arbitrary 2 because there is no reason given for alleged incompatibility with `nearby residences.'" Id. 3 The Resolution states that "`Adverse effects upon neighboring properties have been identified 4 from this development.'" Id. "No such adverse effects are identified, other than square 5 footage comparisons with surrounding fifty-year-old properties." Id. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The council concluded by finding that the proposed residence `is approximately 387 square feet larger than the maximum size of future residences in the area analyzed.' The alleged incompatibility of a single-family residence in a singlefamily zoning district that complies with then-applicable maximum square footage limits is an arbitrary and unreasonable conclusion. The reference to `maximum size of future residences' apparently refers to Ordinance No. 357. As the planning staff noted: `The proposed project is not subject to Ordinance No. 357 because it [the project application] was deemed complete prior to the ordinance effective date of March 24, 2007 (project deemed complete as of February 24, 2007).' To the extent that the City sought to impose a lateradopted ordinance to plaintiffs' application, the City acted arbitrarily and unreasonably. Id. The Resolution also states: "`The site layout and design of the proposed project do not visually and functionally enhance its intended use as a single-family residence because the bulk and scale of the proposed project is incompatible with nearby structures.'" Id. "There is no definition of `bulk' and `scale' in the municipal ordinance, nor are those terms mentioned in the staff analysis of Lot 10. To the extent `bulk and scale' are not defined by maximum allowable floor area, height maximums, and square footage maximums contained in the ordinance (all of which plaintiffs' application satisfied), then those findings are arbitrarily vague and subjective and unreasonable." Id. The Complaint's first claim alleges that the City's denial of Plaintiffs' application for a building permit for Lot 10 constituted a deprivation of Plaintiffs' right to due process under the Fourteenth Amendment to the United States Constitution, thereby violating 42 U.S.C. § 1983. The Complaint's second claim alleges that the City's denial of Plaintiffs' application for a building permit for Lot 10 constituted a deprivation of Plaintiffs' right to equal protection under the Fourteenth Amendment, thereby violating 42 U.S.C. § 1983. In support of the second claim, Plaintiffs allege: The proposed homes on Lots 9 and 10 were identical in all material ways, and
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1 2 3 4 5

the City's approval of one (Lot 9) and denial of the other (Lot 10) was discriminatory. There was no rational basis for this treatment.... In addition, the City's approval of new homes in the immediate vicinity of plaintiffs' property demonstrated the discriminatory treatment of the City's denial of the Lot 10 proposed home. These approvals included ... the approval of homes located at 140 South Granados (4,209 square feet), 142 South Granados (4,209 square feet), and 146 South Granados (4,263 square feet). These homes were approved in 2006, and were identical in all material ways to plaintiffs' proposed Lot 10 home.

6 (Compl. ¶ 33-34). 7 8 9 Plaintiffs seek consequential damages, attorneys' fees and costs. B. State Court Litigation

After the City denied the Lot 10 permit application on September 19, 2007, Plaintiffs

10 filed a Petition for Writ of Mandate and Complaint for Damages against the City in San Diego 11 Superior Court on October 29, 2007. (Def.'s Request for Judicial Notice, Ex. A, Doc. # 5-3).1 12 Plaintiffs' claims related to the City's September 19, 2007 denial of the Lot 10 permit 13 application. On February 15, 2008, Plaintiffs filed an amended petition and complaint alleging 14 causes of action for (1) writ of mandate, (2) inverse condemnation, (3) due process, and (4) 15 equal protection. (Def.'s Request for Judicial Notice, Ex. B, Doc. # 5-3). 16 The City filed a demurrer as to each of Plaintiffs' four causes of action in the amended

17 petition and complaint. On August 15, 2008, the state court overruled the City's demurrer as 18 to the first three causes of action, but sustained the demurrer as to Plaintiffs' equal protection 19 claim. The state court stated: "The court finds that the Plaintiffs have failed to allege a 20 required element of [an equal protection] cause of action: that Plaintiffs have been treated 21 differently than other people in similar situations. Plaintiffs are granted 20 days leave to 22 amend to allow them to state a cause of action including this element." (Def.'s Request for 23 Judicial Notice, Ex. C at 1, Doc. # 5-3). 24 On September 3, 2008, Plaintiffs filed a Second Amended Complaint alleging two

25 causes of action: due process and inverse condemnation. (Def.'s Request for Judicial Notice, 26 Ex. D, Doc. # 5-3). 27 The Court takes judicial notice of the filings in the State Court Action. See 28 Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998).
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1

On April 3, 2009, Plaintiffs filed a request for dismissal of the state court action without

2 prejudice. (Def.'s Request for Judicial Notice, Ex. E, Doc. # 5-3). On June 9, 2009, the state 3 court entered a judgment of dismissal pursuant to Plaintiffs' request. (Def.'s Request for 4 Judicial Notice, Ex. F, Doc. # 5-3). Plaintiffs initiated their action in this Court on June 25, 5 2009. (Doc. # 1). On July 10, 2009, the state court judgment of dismissal was amended to 6 include an award of costs to the City in the amount of $8,276.02. (Def.'s Request for Judicial 7 Notice, Ex. G, Doc. # 5-3). 8 9 C. Motion to Dismiss

On July 20, 2009, the City filed the Motion to Dismiss. (Doc. # 5). With respect to

10 Plaintiffs' due process claim, the City contends that the "claim is not ripe because plaintiffs[] 11 have not alleged sufficient facts to show they exhausted their remedies under state law," and 12 the Plaintiffs do not have standing because "plaintiffs[] have failed to allege sufficient facts 13 to show they were deprived of a protected property interest or that the City acted arbitrarily or 14 capriciously." (Doc. # 5-1 at 5). The City contends that "Plaintiffs' equal protection claim has 15 already been adjudicated in state court because plaintiffs failed to amend their Complaint to 16 include the equal protection claim after the state court sustained the demurrer with leave to 17 amend. In addition, the equal protection claim is not ripe." (Doc. # 5-1 at 10). 18 On August 14, 2009, Plaintiffs filed an opposition to the Motion to Dismiss. Plaintiffs

19 contend that "[t]he City improperly conflates ripeness standards for takings cases and due 20 process/equal protection cases. This action does not plead a taking, and is ripe for adjudication 21 under the ripeness standards governing the due process and equal protection claims that are 22 pled." (Doc. # 6 at 3). Plaintiffs contend that they have standing to pursue their claims, and 23 their equal protection claim is not barred "because the state court ruling held only that 24 plaintiffs had failed to plead an element of their equal protection claim, a technical failure that 25 they have now cured in this federal complaint." (Doc. # 6 at 14). 26 On August 24, 2009, the City filed a reply brief in support of the Motion to Dismiss.

27 (Doc. # 7). 28 //
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1 II. 2 3

Discussion A. Standard of Review

"Whether a claim is ripe for adjudication goes to a court's subject matter jurisdiction

4 under the case or controversy clause of article III of the federal Constitution." St. Clair v. City 5 of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (citation omitted). "Like other challenges to a 6 court's subject matter jurisdiction, motions raising the ripeness issue are treated as brought 7 under Rule 12(b)(1) even if improperly identified by the moving party as brought under Rule 8 12(b)(6)." Id. (citation omitted). 9 "When subject matter jurisdiction is challenged under Federal Rule of Procedure

10 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." 11 Tosco Corp. v. Communities for Better Env't, 236 F.3d 495, 499 (9th Cir. 2001). Upon a 12 motion to dismiss pursuant to Rule 12(b)(1), a party may make a jurisdictional attack that is 13 either facial or factual. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 14 2004). A facial attack occurs when the movant "asserts that the allegations contained in a 15 complaint are insufficient on their face to invoke federal jurisdiction." Id. A factual attack 16 occurs when the movant "disputes the truth of the allegations, that by themselves, would 17 otherwise invoke federal jurisdiction." Id. 18 In the Motion to Dismiss, the City does not dispute the truth of the allegations. The

19 City contends that Plaintiffs' claims are not ripe because "plaintiffs do not, and cannot, allege 20 the denial of the development review permit was a final decision." (Doc. # 5-1 at 7). 21 22 B. Ripeness

"In the area of land use, the doctrine of ripeness is intended to avoid premature

23 adjudication or review of administrative action. A constitutional challenge to land use 24 regulations is ripe when the developer has received the planning commission's `final definitive 25 position regarding how it will apply the regulations at issue to the particular land in question.'" 26 Herrington v. County of Sonoma, 857 F.2d 567, 568-69 (9th Cir. 1988) (quoting Williamson 27 Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 191 (1985)). In the context of due process 28 and equal protection claims, courts "require a final decision by the government which inflicts
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1 a concrete harm upon the plaintiff landowner."2 Herrington, 857 F.2d at 569. "A final 2 decision requires at least: `(1) a rejected development plan, and (2) a denial of a variance.'" 3 Id. (quoting Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir. 1987)); see also 4 Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1232 (9th Cir. 1994) ("Typically, before a 5 decision is final the landowner must have submitted one formal development plan and sought 6 a variance from any regulations barring development in the proposed plan that have been 7 denied."). "A landowner may avoid the final decision requirement if attempts to comply with 8 that requirement would be futile." Herrington, 857 F.2d at 569 (citation omitted). Under this 9 "futility exception," the plaintiff has a "heavy burden of showing that compliance with local 10 ordinances would be futile." Am. Sav. & Loan Ass'n v. County of Marin, 653 F.2d 364, 371 11 (9th Cir. 1981). 12 The Complaint in this case alleges that the City passed a resolution denying Plaintiffs'

13 application for a building permit for Lot 10. (Doc. # 1 ¶¶ 26, 28). The Court concludes that 14 this allegation satisfies the requirement of "a rejected development plan." Herrington, 857 15 F.2d at 569. However, the Complaint does not allege­and Plaintiffs have not asserted­that 16 Plaintiffs were (a) denied a variance, or (b) attempts to comply with the variance requirement 17 would be futile, or (c) "pursuit of a variance was not a legally viable option." Id. at 569-70 18 ("[T]he second Kinzli factor­application for a variance­need not be met in this case because 19 pursuit of a variance was not a legally viable option."); see also Kawaoka, 17 F.3d at 1232 n.4 20 (same); Traweek v. City and County of San Francisco, 920 F.2d 589, 594 (9th Cir. 1990) 21 ("Appellants have not applied for a variance. Although appellants need not apply for a 22 variance if such application does not constitute a legally viable option, appellants have not 23 indicated any facts which satisfy their heavy burden of establishing the futility exception.") 24 (citation omitted). For this reason, the Complaint must be dismissed for lack of subject-matter 25 jurisdiction. 26 Because Plaintiffs do not assert a takings claim, they need not have "obtain[ed] a 27 decision as to the feasibility of a less intensive development" in order for their claims to ripen. Herrington v. County of Sonoma, 834 F.2d 1488, 1497 (9th Cir. 1987). Similarly, Plaintiffs 28 are not required to show that they exhausted state procedures for obtaining compensation. See Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir. 1989).
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1 III. 2

Conclusion IT IS HEREBY ORDERED that the Complaint is DISMISSED for lack of subject-

3 matter jurisdiction. No later than thirty (30) days from the date of this Order, Plaintiffs may 4 file a motion for leave to amend the Complaint, accompanied by a proposed amended 5 complaint. If Plaintiffs do not file a motion for leave to amend within thirty days, the Court 6 will order this case to be closed. 7 DATED: November 10, 2009 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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WILLIAM Q. HAYES United States District Judge