Burch v. Smathers et al

Filing 71

MEMORANDUM DECISION AND ORDER granting 22 Defendant's Motion for Summary Judgment; denying 36 Plaintiff's Motion to Amend Complaint; denying as moot 58 Plaintiff's Motion to Extend Discovery; denying 65 Plaintiff's Motion to Supplement Plaintiff's Response to Defendant's Motion for Summary Judgment. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KEITH REIFERD BURCH,
Case No. 3:12-cv-00632-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER RE: Dkt. Nos. 22, 36, 58, 65

v.
RYAN SMATHERS, in his official
capacity as Mayor of the City of
Orofino; RON BANKS, TED BROWN,
MIKE DEITRICK, AVERY
DUNAWAY, DON GARDNER and
MARGUERITE McLAUGHLIN in their
official capacities as members of the
Orofino City Council,
Defendants.

Before the Court are four motions pending in this action filed by Plaintiff Keith R.
Burch against the Mayor of Orofino and members of the Orofino City Council
(collectively, “City Council”) under 42 U.S.C. § 1983 and Idaho law. The City Council
filed a Motion for Summary Judgment on all of Burch’s claims, (Dkt. 22), after which
Burch moved to amend the complaint (Dkt. 36) and extend discovery (Dkt. 58). On
December 4, 2013, the Court heard oral argument on the three motions and all three were
taken under advisement. (Dkt. 64.) For the reasons explained below, the Court will grant

MEMORANDUM DECISION AND ORDER - 1

the City Council’s motion for summary judgment, deny Burch’s motion to amend, and
deny as moot Burch’s motion to extend discovery.
Five days after the three motions were taken under advisement, Burch filed a
motion to supplement his response to the City Council’s motion for summary judgment
(Dkt. 65). The Court expedited briefing on the motion, the City Council filed a response
on December 16, 2013, and Burch filed a reply on January 1, 2014. In the interest of
avoiding delay, and because the Court finds the decisional process would not be
significantly aided by oral argument, Burch’s motion to supplement will be decided on
the record pursuant to District of Idaho Local Civil Rule 7.1(e). For the reasons discussed
more fully below, the Court will deny Burch’s motion to supplement.
BACKGROUND
Burch’s Complaint alleges the City Council violated his federal procedural due
process and equal protection rights by denying a special use permit application he
submitted in June 2012. The application sought permission to operate a law office in a
single family residential zone. Burch also claims the City’s hearing process violated
various provisions of Idaho’s Local Land Use Planning Act (“LLUPA”) (Idaho Code
§ 67-6501 et seq.) and, by extension, the due process guarantee in the Idaho Constitution.
In addition, Burch seeks to supplement his summary judgment response, amend his
complaint with a federal substantive due process claim and, depending on the outcome of
the City Council’s motion for summary judgment, extend discovery in this matter. The
City Council argues that Burch has not shown good cause for supplementation, the
proposed amendment to add a substantive due process claim is futile, further discovery is
MEMORANDUM DECISION AND ORDER - 2

unnecessary, and the City Council is entitled to summary judgment on all of Burch’s
claims.
1.

Findings of Fact
The Court finds the following to be the undisputed material facts for the purposes

of deciding the City Council’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(a).
The property at the heart of this controversy, 903 Kalaspo Avenue Orofino, Idaho, is
located in an R-2 zoning district. (Dkt. 1-1 at 1.) The Orofino City Code defines the R-2
zone as a “Single-Family Dwelling District.” Orofino City Code § 11-2-4. Further,
businesses other than small daycare facilities and certain “home occupations” 1 may
operate in the R-2 zone only by obtaining a special use permit. Id. On June 20, 2012,
Burch2 filed a written application for a special use permit to operate and post a sign for a
law office at 903 Kalaspo Avenue. (Dkt. 1-1 at 1.) A special use permit is necessary for
the proposed law office because, as Burch explains, the office is “incompatible with the
uses permitted outright in an R-2 Zone.” (Dkt. 1 ¶ 25.)
1

The Orofino City Code defines “home occupation” as:
Those activities engaged in one or two (2) rooms of a home or its
accessory building; such as home care products, arts and crafts, online
computer services, typing, bookkeeping and like activities. A home
occupation shall not detract from or change the integrity or character of
the residential zone. There shall not be any outside indication such as
signage or other indication that a home occupation exists at a residence.
Any occupation that does not conform with the intent of this definition
shall apply for a special use permit with the Planning and Zoning
Commission. The City reserves the right to revoke a home occupation
permit and license if the nature of the home occupation changes or
complaints on the home occupation persist.
Orofino City Code § 11-2-1 (emphasis added).
2

Plaintiff Keith Burch is an attorney licensed to practice law in Idaho. Burch elected to
appear pro se in this matter.
MEMORANDUM DECISION AND ORDER - 3

Applications for special use permits are considered first by the Orofino Planning
and Zoning Commission. Orofino City Code § 11-2-13. If the Planning and Zoning
Commission recommends approval of the permit, the City Council takes up the matter.
Id. After a public hearing on July 17, 2012, the Orofino Planning and Zoning
Commission voted to recommend approval of the special use permit requested by Burch.
(Dkt. 1-1 at 6.) A public hearing before the Orofino City Council followed on August 28,
2012. (Id. at 10-13.)
The Council considered Burch’s testimony in favor of his application, as well as
testimony and letters in opposition to the permit from other city residents and city
officials. (Id.) The hearing minutes show that the opposition to the proposed law office
noted its potential to increase traffic congestion and use on-street parking on Kalaspo
Avenue. (Id. at 11-12.) For example, the Orofino Police Chief stated that Kalaspo
Avenue becomes congested during school hours and students at the nearby elementary
school tend to walk in the middle of the street, as there are no sidewalks. (Id. at 11.) In
addition, several opponents contended the law office would be inconsistent with the
residential character of the R-2 zone. (Id. at 27-28; Dkt. 53-2 3-9, 11-15.) The hearing
minutes also state that, during the City Council’s deliberations, Council member
McLaughlin indicated Orofino’s Comprehensive Plan did not call for a transition from
residential to business uses in the R-2 zone. (Dkt. 1-1 at 11-13.) Other Council members
voiced concerns over traffic congestion on Kalaspo Avenue, consistency with the area’s
residential character, and the lack of support for Burch’s proposal. (Id.) Ultimately, the
City Council unanimously voted to deny Burch’s application. (Id.)
MEMORANDUM DECISION AND ORDER - 4

The City sent Burch a written notice of the Council’s decision on September 4,
2012, which states “the Orofino City Council has denied your application for a Special
Use Permit….” (Id. at 26.) The notice further states “the City Council noted that
[Burch’s] request was not in conformance with the adopted Future Land Use Map within
the City’s Comprehensive Plan” and “[i]ncreased traffic conditions, the lack of support
[for the application] and maintaining the integrity of the R-2 Zone (Residential) were
critical components for denying [Burch’s] request.” (Id.) Burch claims the notice omitted
certain language required by Idaho law and, thus, does not qualify as notice of a final
decision. (Pl.’s Stmt. of Contested Material Facts ¶ 16, Dkt. 53-1.) However, during the
Court’s hearing on the motions, Burch conceded that the City Council reached a final
decision denying his special use permit application.3
According to Burch, the denial of his requested special use permit differs from the
Council’s treatment of two similar permit applicants. After the denial of Burch’s permit,
the City Council, in December 2012, approved a special use permit for a law office in an
R-3 zone. (Burch Aff. ¶¶ 113-14, Dkt. 53-3.) And, two years before Burch’s application,
the City Council approved a special use permit for an eight-child daycare in the R-2 zone
on H Street, less than one block away from Burch’s Kalaspo Avenue home. (Dkt. 1-1 at
15 (map), 17 (initial daycare hearing), 24 (daycare approval with conditions).)
The daycare permit was issued to Jennifer Dunaway, the wife of Avery Dunaway,
one of the Council members who considered Burch’s application. (Id. at 16-17.) Avery
3

This concession is essential to Burch’s claims because, had the City Council not
reached a final decision, the lawsuit would not be ripe. See Hoehne v. County of San Benito, 870
F.2d 529, 532 (9th Cir. 1989).
MEMORANDUM DECISION AND ORDER - 5

Dunaway was not a member of the City Council in 2010, when his wife received the
daycare special use permit. (Id.) Burch submitted the only letter in opposition to the
proposed daycare, in which he expressed concerns that the daycare would reduce the
value of his Kalaspo Avenue property through increased noise and traffic not suitable for
the residential setting. (Id. at 18-19.) At an April 13, 2010 hearing on her daycare permit
application, Dunaway stated she did not believe traffic would be a problem.4 (Id. at 17.)
Then, at a July 13, 2010 hearing, the City Council approved Dunaway’s application
subject to certain conditions. (Id. at 24.) Although Dunaway requested an unconditional
permit for a twelve-child daycare, (Id. at 17), the permit allows only eight children,
requires a yearly review, and states that “legitimate complaints may result in…
revocation.” (Id. at 24.)
2.

Procedural Background
Burch filed his Complaint on December 27, 2012. The Complaint names as

defendants Ryan Smathers, in his official capacity as the Mayor of the City of Orofino,
and individual City Council members – Ron Banks, Ted Brown, Mike Deitrick, Avery
Dunaway, Don Gardner, and Marguerite McLaughlin. Under 42 U.S.C. § 1983, Burch
alleges that the City Council’s deficient hearing procedures and irrational differential
4

Burch proposes to supplement his summary judgment response with an “expert report”
by Dr. Ahmed Abdel-Rahim, a professional engineer. (Dkt. 65.) Dr. Abdel-Rahim opines that the
Dunaway’s daycare would produce more vehicle “trips” than Burch’s proposed law office.
(Abdel-Rahim Rpt. at 3, Dkt. 66-1.) The report also indicates that the “morning peak hour of the
daycare facility traffic is likely to be the same as the morning peak hour for the adjacent street
area” but that the law office’s morning peak would be different. (Id.) As discussed below, Burch
has failed to show good cause for supplementing the record with the report. Nonetheless, Dr.
Abdel-Rahim’s conclusions do not demonstrate that the daycare produced problematic traffic
levels. Nor does the report show the City Council lacked a rational basis for its traffic concerns
in connection with Burch’s application.
MEMORANDUM DECISION AND ORDER - 6

treatment of his application deprived him of his federal due process and equal protection
rights. In addition, Burch alleges the Council violated various procedural requirements in
Idaho’s LLUPA and, thus, also infringed upon his due process rights under the Idaho
Constitution.
The City Council filed its Answer on January 25, 2013. The Council served by
mail its initial discovery disclosures to Burch on March 7, 2013. On the same day, the
City Council filed a motion for summary judgment, (Dkt. 22), seeking judgment on all of
Burch’s claims. This motion for summary judgment was filed less than three months after
Burch filed his Complaint.
On March 24, 2013, Burch timely filed a motion for an extension of time to
respond to Defendants’ motion for summary judgment, and the Court granted extension
through April 10, 2013. (Dkt. 28.) Then, on April 6, 2013, Burch filed a motion under
Rule 56(d) asking the Court for additional time to conduct discovery before responding to
Defendants’ motion for summary judgment. In its May 15, 2013 Order, the Court granted
Burch sixty days to conduct discovery, including written interrogatories to all named
defendants. (Dkt. 38.) Consistent with Rule 56(d), the Court limited discovery to subjects
where Burch articulated a specific, non-conclusory need for additional information—
namely, “the City Council’s issuance of special use permits to similarly situated
properties and the identity of the persons responsible for the audio recordings of the
public hearings.” (Dkt. 38 at 10.) Discovery proceeded through early summer.
In late June, Burch moved to further extend the deadline for his summary
judgment response. Finding good cause, the Court extended the response deadline to July
MEMORANDUM DECISION AND ORDER - 7

23, 2013. (Dkt. 50.) Burch filed his opposition to the motion for summary judgment in
accordance with that deadline, and Defendants filed their reply in early August 2013.
Also before the Court are Burch’s motions for leave to file an amended complaint,
(Dkt. 36), and to extend the Court’s September 30, 2013 deadline for factual discovery
(Dkt. 58). The motion to amend requests leave to add (1) a federal substantive due
process claim; (2) more alleged facts concerning the federal equal protection claim; and
(3) claims for compensatory damages, including presumed damages. The City Council,
paraphrasing their summary judgment arguments, contends the proposed amendments
would be futile. The motion to extend discovery seeks a new schedule for discovery,
following resolution of the motion for summary judgment—a request that the City
Council does not oppose but, instead, contends is unnecessary given the substantial
discovery that has already occurred. As mentioned above, on December 4, 2013, the
Court heard oral argument on all three motions and took them under advisement.
On December 9, 2013, without requesting permission, Burch filed a motion to
supplement his response to the City Council’s motion for summary judgment—more than
four months after Burch filed his response to the motion for summary judgment. (Dkt.
65.) The motion to supplement requests that the Court consider an “Expert Witness
Report,” which Burch disclosed to the City Counsel in discovery but failed to submit in
the record before the Court. To avoid delay, the Court expedited briefing on the motion to
supplement. The City Council filed its opposition on December 16, 2013, Burch filed a
reply on January 1, 2014, and the motion to supplement is ripe for consideration.

MEMORANDUM DECISION AND ORDER - 8

DISCUSSION
The facts material to Burch’s federal claims are few and not in genuine dispute.
The facts material to Burch’s state law claim—the date the City sent Burch notice of the
Council’s decision and the date Burch filed the Complaint—are also beyond dispute.
Upon consideration, the Court finds summary judgment is appropriate for reasons more
fully set forth below. From this, it follows that Burch’s proposed amendments to the
complaint are futile and the motion to extend discovery is moot. In addition, the Court
finds Burch has not shown good cause to supplement his response to the motion for
summary judgment.
1.

Motion for Summary Judgment
a.

Standard for Summary Judgment

Rule 56 directs the court to “grant summary judgment if the movant shows there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Critically, “the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “A dispute
about a material fact is genuine ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’” Freecycle Sunnyvale v. Freecycle Network, 626 F.3d
509, 514 (9th Cir.2010) (quoting Anderson, 477 U.S. at 248).
“The moving party initially bears the burden of proving the absence of a genuine
issue of material fact.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir.2010)
MEMORANDUM DECISION AND ORDER - 9

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the non-moving
party bears the burden of proof at trial, the moving party need only prove that there is an
absence of evidence to support the non-moving party's case.” Id. (citing Celotex, 477
U.S. at 325). “Where the moving party meets that burden, the burden then shifts to the
non-moving party to designate specific facts demonstrating the existence of genuine
issues for trial.” Id. (citing Celotex, 477 U.S. at 324). “If a party... fails to properly
address another party's assertion of fact as required by Rule 56(c), the court may...
consider the fact undisputed for the purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
b.

Federal Procedural Due Process

The Due Process Clause of the Fourteenth Amendment guarantees that “[n]o State
shall… deprive any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. Critically, procedural due process requirements apply to the
deprivation of only those interests protected by the Fourteenth Amendment. Bd. of
Regents v. Roth, 408 U.S. 564, 569 (1972). Burch maintains that certain City Council
members’ bias against his permit request, coupled with Council members’ ex parte views
of 903 Kalaspo Avenue, violated the Fourteenth Amendment’s due process guarantee. In
response, Defendants advance two alternative arguments for granting summary judgment
on Burch’s federal procedural due process claim—Burch does not have a protected
interest in the special use permit and, even if he did, Burch received due process.
The existence of a protected interest is the threshold inquiry. “[N]ot every
procedural requirement ordained by state law… [is] entitled to constitutional protection.”
Shanks v. Dressel, 540 F.3d 1082, 1091 (9th Cir. 2008). Rather, relief on a federal
MEMORANDUM DECISION AND ORDER - 10

procedural due process claim is available only to a plaintiff who can “establish the
existence of ‘(1) a liberty or property interest protected by the Constitution; (2) a
deprivation of the interest by the government; [and] (3) lack of process.’” Id. at 1090
(quoting Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)).
i.

Liberty Interest

Burch’s Complaint does not explicitly allege a deprivation of a constitutionally
protected liberty interest. Nevertheless, the City Council argues in its memorandum in
support of summary judgment that Burch does not have a liberty interest at stake. (Dkt.
22-1 at 7.) Burch responds that summary judgment would be premature until he
articulates a liberty interest claim “in accord with the timeline appropriate for this
controversy.” (Dkt. 53 at 9.) The Court will not accept Burch’s invitation to defer
judgment, however, especially when Burch had ample time to clearly state a liberty
interest claim and ample notice that the Council would dispute its existence. Indeed, the
City Council raised the issue in its March 7, 2013 memorandum, yet Burch’s April 29,
2013 proposed amended complaint does nothing to clarify the interest or interests at stake
in his due process claim. Moreover, the deadline for amended pleadings has long since
passed.
Even if the Court liberally construes the pleadings—as it would for non-attorney
pro se litigants, see Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)—
Burch’s liberty interest claim fails. There is “some generalized due process right to
choose one’s field of private employment.” Conn v. Gabbert, 526 U.S. 286, 291-92
(1999). Nevertheless, a protected liberty interest has only been recognized where “(1) a
MEMORANDUM DECISION AND ORDER - 11

plaintiff challenges the rationality of government regulations on entry to a particular
profession or (2) a state seeks permanently to bar an individual from public
employment.” Guzman v. Shewry, 552 F.3d 941, 954 (9th Cir. 2008). There is simply no
evidence suggesting that the Council’s decision barred Burch from public employment or
inhibited his entry into the practice of law. Quite the opposite, Burch is duly admitted to
practice law in Idaho and is engaged in private practice, including the maintenance of this
lawsuit. Therefore, the record before the Court indicates Burch does not have a
cognizable liberty interest at stake.
ii.

Property Interest

A constitutionally protected property interest in a land use permit exists where
state law gives rise to a “legitimate claim of entitlement” to the permit. Gerhart v. Lake
County, Mont., 637 F.3d 1013, 1020 (9th Cir. 2011), cert. denied 132 S.Ct. 249 (2011).
“Vested rights in a land development permit… ‘are created and their dimensions are
defined by existing rules or understandings that stem from… state law.’” Outdoor Media
Group, Inc. v. City of Beaumont, 503 F.3d 895, 903 (9th Cir. 2007) (quoting Roth, 408
U.S. at 577). A legitimate claim of entitlement can exist where state law significantly
limits the decision maker’s discretion or where the decision maker’s policies and
practices create a de facto property interest. Gerhart, 637 F.3d at 1021. However, “[a]
constitutional entitlement cannot be created—as if by estoppel—merely because a wholly
and expressly discretionary state privilege has been granted generously in the past.”
Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981).

MEMORANDUM DECISION AND ORDER - 12

With these principles in mind, the Court looks to Idaho law. The LLUPA
provision governing the special use permitting process provides in relevant part:
A special use permit may be granted to an applicant if the proposed use is
conditionally permitted by the terms of the ordinance, subject to conditions
pursuant to specific provisions of the ordinance, subject to the ability of
political subdivisions, including school districts, to provide services for the
proposed use, and when it is not in conflict with the plan.
Idaho Code § 67-6512(a) (emphasis added). Critically, this provision does not say “a
special use permit shall be granted”; rather, operative word “may” clearly indicates the
Council has discretion to grant or deny a permit even if all other listed conditions are
satisfied. See Marcia T. Turner, L.L.C. v. City of Twin Falls, 159 P.3d 840, 848-49 (Idaho
2007). Although the City Council may impose conditions on special use permits or order
“studies of the social, economic, fiscal and environmental effects of the proposed special
use,” nothing in the Orofino City Code constrains the Council’s discretion to grant or
deny special use permits. Orofino City Code § 11-2-13. In other words, both LLUPA and
the City Code lack mandatory language that would give rise to a legitimate claim of
entitlement to a special use permit under the circumstances of this case.
In a similar context, the United States Court of Appeals for the Ninth Circuit held
that a Spokane, Washington, ordinance did not create a legitimate claim of entitlement.
Shanks, 540 F.3d at 1090. Shanks involved a claim that the City of Spokane, by
approving a building permit in a historic district, violated neighboring property owners’
procedural due process rights. The Ninth Circuit assumed without deciding that the
neighbors could have a constitutionally protected interest in the application of zoning
rules to a neighboring property, but nevertheless found they had no legitimate claim of
MEMORANDUM DECISION AND ORDER - 13

entitlement to denial of the building permit. Id. Spokane’s ordinance, like Orofino’s, did
not mandate an outcome, and Washington law, like LLUPA, did not obligate the city to
act in a particular way. Id. Accordingly, the Ninth Circuit affirmed summary judgment in
favor of the city.
Likewise, in Gerhart, the Ninth Circuit found neither Montana law nor the Lake
County, Montana, Commissioners’ practices and polices created a legitimate claim of
entitlement to a land use permit. 637 F.3d 1013. There, as here, the aggrieved plaintiff
sued under 42 U.S.C. § 1983, alleging the permit denial violated his due process and
equal protection rights. In affirming the district court’s summary judgment on Gerhart’s
due process claims, the panel emphasized the controlling Montana statute, like Idaho
Code § 67-6512(a), featured the permissive word “may” and thus did not significantly
constrain the Commissioners’ discretion to deny the permit. Id. at 1020. The panel also
examined whether the Commission’s past practice of leniently granting the permit gave
Gerhart a legitimate claim of entitlement. Although Gerhart believed his permit
application would be approved, there was no evidence of a “mutual understanding” that
Gerhart’s permit would be granted. Id. at 1021. Consequently, Gerhart’s unilateral belief
that the permit should have been granted did not amount to a constitutionally protected
property interest.
In the face of this precedent, Burch argues Idaho law is different. Burch contends
that “[t]aken together” LLUPA and the Orofino City Code create a legitimate claim of
entitlement by imposing procedural constraints on the Orofino City Council. (Dkt. 53 at
8-9.) However, “procedural requirements ordinarily do not transform a unilateral
MEMORANDUM DECISION AND ORDER - 14

expectation into a protected interest….” Wedges/Ledges of California, Inc. v. City of
Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994). Only if procedural requirements amount to
a “significant substantive restriction on decision making” do they give rise to a protected
property interest. Id. (internal quotation omitted). The Court finds no such restrictions in
either LLUPA or the Orofino City Code, and Burch makes no showing to the contrary.
Both LLUPA and the Orofino City Code contain numerous requirements for
special use permit hearings. See Idaho Code 67-6512; Orofino City Code § 11-2-13.
However, procedural elements, such as the form, content, or timing of notice, do not
create substantive permitting criteria nor do they compel permit approval when certain
conditions are met. In fact, both LLUPA and the Orofino City Code unequivocally state:
“A special use permit shall not be considered as establishing a binding precedent to grant
other special use permits.” Id. This language forecloses reliance on the City’s Council’s
past permit decisions and underscores the discretionary, case-by-case nature of the
special use permitting process.
Similarly, Orofino’s special use application form does not cabin the City Council’s
discretion by requiring a “narrative statement.” A complete special use application form
must include a statement addressing nine land use factors. 5 (See Dkt. 1-1 at 1 (Burch’s
5

The special use application form requires a narrative statement that the proposed special use:
1) Will, in fact, constitute a special use as established on the Official Schedule of
District Regulations for the Zoning District involved;
2) Will be harmonious with and in accordance with the general objectives or with
any specific objective of the Comprehensive Plan and Zoning Ordinance;
3) Will be designed, constructed, operated and maintained to be harmonious and
appropriate in appearance with the existing or intended character of the general
vicinity and that such use will not change the essential character of the area;
4) Will not be hazardous or disturbing to existing or future neighboring uses;

MEMORANDUM DECISION AND ORDER - 15

application form).) These factors highlight considerations generally at issue for special
use permits, but nowhere does the application form, let alone LLUPA or the Orofino City
Code, limit the City Council’s analysis to those factors. The application form does not
suggest that a permit will be granted merely because an applicant submits a narrative
statement addressing each factor. To the contrary, the applicant’s narrative, like
testimony and other materials received during the public hearing, provides information
for the Council to consider in its decision on the permit request.
In sum, Idaho law does not impose a constitutionally significant restriction on the
City Council’s discretion to issue or deny special use permits. Notwithstanding Burch’s
unilateral expectation, the procedural requirements of LLUPA and the Orofino City Code
create no legitimate claim of entitlement to a special use permit. Because Burch does not
make the threshold showing of a constitutionally protected interest, his federal due
process claim fails as a matter of law.

5) Will be served adequately by public facilities and services such as streets,
police and fire protection, drainage, refuse disposal, water and sewer, and schools;
or that the persons or agencies responsible for the establishment of the proposed
use shall be able to provide such services;
6) Will not require excessive additional requirements at public cost for facilities
and services and will not be detrimental to the economic welfare of the
community;
7) Will not involve uses, activities, processes, materials, equipment and
conditions of operation that will be detrimental to any persons, property or the
general welfare of the public;
8) Will have vehicular approaches to the property which shall be so designed as
not to create an interference with traffic on surrounding public thoroughfares;
9) Will not result in the destruction, loss or damage of a natural, scenic, or historic
feature of major importance.
(Dkt. 1-1 at 1.)
MEMORANDUM DECISION AND ORDER - 16

c.

Federal Equal Protection

Burch contends the City Council’s denial of his special use permit application
violates equal protection because he was treated differently than similarly situated
applicants. However, Burch does not contend the discrimination was on the basis of a
suspect classification or in derogation of a fundamental right. (See Dkt. 1 ¶ 69.) Rather,
Burch maintains he is a “class of one” singled out for disparate treatment without rational
basis. (Id. ¶ 68-69.)
The Equal Protection Clause of the Fourteenth Amendment provides: “No state
shall… deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. In addition to supporting claims against class-based
discrimination or deprivation of fundamental rights, the United States Supreme Court has
recognized that the equal protection clause may, in some circumstances, afford
individuals relief from intentional, irrational, and differential treatment at the hands of the
Government. E.g., Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam).
But, to succeed on his “class of one” claim, Burch must demonstrate the City Council:
“(1) intentionally (2) treated [Burch] differently than other similarly situated property
owners, (3) without rational basis.” Gerhart, 637 F.3d at 1022 (citing Willowbrook, 528
U.S. at 564).
Noting that disparate treatment, alone, is insufficient, the City Council first argues
summary judgment should be granted because there is no evidence of “purposeful,
invidious discrimination.” (Dkt. 22-1 at 14.) Although a class of one claimant must
receive intentional differential treatment, the treatment need not be motivated by animus
MEMORANDUM DECISION AND ORDER - 17

or ill will. Gerhart, 637 F.3d at 1022. The City Council quotes out-of-circuit case law for
the proposition that the class of one plaintiff must suffer “purposeful, invidious
discrimination.” (Dkt. 22-1 at 13 (quoting Sunrise Corp. of Myrtle Beach v. City of
Myrtle Beach, 420 F.3d 322, 329 (4th Cir. 2005).) But the word “invidious” implies an
element of subjective ill will that is not required by Ninth Circuit precedent. Compare
Gerhart, 637 F.3d at 1022 (“subjective ill will” unnecessary) with Black’s Law
Dictionary 535 (9th Ed. 2009) (defining “invidious discrimination” as “[d]iscrimination
that is offensive or objectionable, esp. because it involves prejudice or stereotyping.”)
There can be little doubt the Orofino City Council intentionally treated Burch
differently than successful special use permit applicants. The Council denied his
application and stated reasons for doing so. (Dkt. 1-1 at 26.) But the inquiry does not end
here. To survive summary judgment, there must be evidence from which a reasonable
trier of fact could determine Burch was treated differently from similarly situated
applicants without rational basis. Burch cannot make this showing.
“The Equal Protection clause does not forbid classifications”; “[i]t simply keeps
governmental decisionmaker’s from treating differently persons who are in all relevant
respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). In the land use context, at
least one Circuit has set a high bar, requiring a class of one plaintiff to demonstrate
treatment different from “someone who is prima facie identical in all relevant respects.”
Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002). “An equal
protection claim will not lie by ‘conflating all persons not injured into a preferred class
receiving better treatment’ than the plaintiff.” Thornton v. City of St. Helens, 425 F.3d
MEMORANDUM DECISION AND ORDER - 18

1158, 1167 (9th Cir. 2005) (quoting Joyce v. Mavromatis, 783 F.2d 56, 57 (6th Cir.
1986)). For this reason, the Ninth Circuit has found that different land uses, or even an
identical use in a different zone, do not qualify as similarly situated. Id. at 1167-68.
In Thornton, for instance, the operators of an automobile wrecking yard brought a
class of one claim after the city of St. Helens, Oregon, denied a necessary local land use
approval. Id. Summary judgment was appropriate because the wrecking yard operators
could not show the city treated other wrecking yards differently. Id. Although there were
no other wrecking yards in the city, other businesses in the same “Heavy Industry” zone
were not similarly situated, as they did not raise the same regulatory concerns. Id.
Conversely, in Gerhart, the Ninth Circuit found similarly situated ten properties on the
same block that were not required to obtain the same permit as the plaintiff. 637 F.3d at
1022. The lesson of these cases is that a class of one plaintiff must show other persons
were treated differently in nearly identical circumstances.
Here, Burch argues the City Council granted two special use permits to similarly
situated applicants. First, Burch highlights the Council’s approval of a permit for a law
office in an R-3 zone. (Dkt. 53 at 18.) The City Council approved the R-3 law office
application in December 2012, a few months after it denied Burch’s R-2 law office
application. But “[e]vidence of different treatment of unlike groups does not support an
equal protection claim.” Thornton, 425 F.3d at 1168.
Although the use and timing are nearly identical, the two zoning classifications are
dissimilar. One clear difference is that Orofino’s R-3 zone is less restrictive than the R-2
zone with respect to off-street parking. Parking lots are allowed for all permitted uses in
MEMORANDUM DECISION AND ORDER - 19

the R-3 zone, whereas only church parking lots are allowed in the R-2 zone. Orofino City
Code §§ 11-2-4(B) (R-2), -5(B) (R-3). Congestion related to on-street parking was one of
the factors in the Council’s decision to deny Burch’s application. Unlike Gerhart, where
the plaintiff was forced to apply for a permit that was not required for ten other properties
on the same block, 637 F.3d 1013, the different zoning classifications distinguish the two
law offices here. Approval of the R-3 permit merely shows the Council consistently
requires special use permits for law offices in residential zones and may approve or deny
a permit application depending on the circumstances. Therefore, the R-3 law office is not
similarly situated to Burch’s proposed R-2 law office.
Second, Burch highlights the fact that the City Council granted Jennifer Dunaway
a special use permit to operate an eight-child daycare. The daycare operates in a home on
H Street in the R-2 zone close to Burch’s property. The permit was conditionally granted
for a different business use, at a different time (2010), by a somewhat different City
Council, and for a residence on a different street. (Dkt. 1-1 at 24.) Nevertheless, Burch
insists the daycare is similarly situated to his proposed law office merely because it is an
in-home business in the R-2 zone.
Under this logic, every permit denial for a proposed R-2 business could rise to the
level of an equal protection violation, converting the Court into the arbiter of Orofino’s
land use policy. Yet “land-use planning questions touch a sensitive area of social policy
into which the federal courts should not lightly intrude.” Pearl Inv. Co. v. San Francisco,
774 F.2d 1460, 1463 (9th Cir. 1985). This policy is particularly important in Idaho, where
there is a “strong presumption” in favor of local zoning decisions. Sanders Orchard v.
MEMORANDUM DECISION AND ORDER - 20

Gem County, 52 P.3d 840, 843 (2002). Policy considerations aside, the record
demonstrates that the daycare is a different business use on a different street than Burch’s
proposed in-home law office.
Even assuming that the R-3 law office or the daycare is similarly situated, the
record clearly demonstrates rational reasons for distinguishing Burch’s law office. In the
class of one context, the test is “whether there is a rational basis for the distinction, rather
than the underlying government action.” Gerhart, 637 F.3d at 1023. In other words,
summary judgment is appropriate if the Court determines, as a mixed question of law and
undisputed fact, there was a rational basis for distinguishing Burch’s application from
those of similarly situated applicants. The undisputed facts show a clear rational basis for
distinguishing the R-3 law office from Burch’s proposed R-2 office. The very purpose of
zoning is to facilitate different forms of development in different zones, and the distinct
zoning classifications implicate a host of different land use policy concerns. The City
Council could therefore rationally distinguish Burch’s proposal from a law office in a
different zone.
The record also shows the City Council had several rational bases for
distinguishing Burch’s proposed law office from the daycare. While only Burch opposed
the daycare application, the record contains numerous examples of public opposition to
Burch’s application. Standing alone, public opposition to a land use proposal may not be
enough, but it is an “appropriate factor for consideration….” Nelson v. City of Selma, 881
F.2d 836, 839 (9th Cir. 1989); see also Schwartz v. Adams County, No. 1:09-cv-019-EJLCWD, 2010 WL 2667207, at * 7 (D. Idaho July 1, 2010) (finding public opposition
MEMORANDUM DECISION AND ORDER - 21

provided rational basis for land use enforcement action). Relying on more than just the
strong opposition, the City Council cited other rational bases for its decision.
For instance, Council members and the public expressed concerns about
consistency with the Orofino Comprehensive Plan and preservation of the
neighborhood’s residential character. It is undisputed that allowing more businesses in
the R-2 zone would tend to alter its residential character. Moreover, the City Council
heard testimony regarding the law office’s potential to exacerbate traffic congestion,
parking issues, and consequent public safety concerns on Kalaspo Avenue—a street
where many children walk to school. The daycare, by contrast, was on a different street
and the record does not indicate a similar level of public or official concern about
consistency with surrounding uses, parking, or traffic congestion. And, critically, both
LLUPA and the Orofino City Code prohibit treating one special use permit as precedent
for another. Idaho Code 67-6512; Orofino City Code § 11-2-13.
At bottom, it is not irrational to conclude that an eight-child daycare is more
consistent with a neighborhood of single-family homes than a law office. Thornton
instructs that dissimilar businesses in the same zone are not necessarily entitled to similar
treatment. See 425 F.3d at 1167-68. And, unlike Gerhart, where there was some evidence
to contradict each reason for the County Commissioner’s decision, 637 F.3d at 1023-24,
there is no genuine dispute here. The City Council stated, in writing, that traffic, the lack
of public support, consistency with the Comprehensive Plan, and maintaining the area’s
residential character were all “critical components” of the decision to deny Burch’s
application. (Dkt. 1-1 at 26.)
MEMORANDUM DECISION AND ORDER - 22

Burch does not contend the City Council’s stated reasons are untrue or illegitimate
governmental concerns. Rather, he asserts that the stated reasons are merely pretext for
an otherwise irrational decision. Considering the record, the Court is not persuaded by
Burch’s contention. Further, pretext does not necessarily equate to illegitimacy or
irrationality. And, in any event, the rational basis test is not a vehicle for scrutinizing
decision makers’ subjective motives. Instead, “government actions that do not affect
fundamental rights or liberty interests and do not involve suspect classifications will be
upheld if they are rationally related to a legitimate state interest.” Fields v. Palmdale Sch.
Dist., 427 F.3d 1197, 1208 (9th Cir.2005).
The Court concludes that no reasonable jury could find the City Council lacked a
rational basis for distinguishing Burch’s law office permit application from the daycare’s
application. There is support in the record for each of the City Council’s stated reasons
for denying Burch’s application. And there is no evidence that the City Council
irrationally disregarded similar concerns when it granted the daycare’s special use permit.
Therefore, the Court will grant summary judgment on Burch’s equal protection claim.
d.

State Law Claims

Burch contends the City Council’s hearing process violated several LLUPA
requirements. Specifically, Burch alleges violations of Idaho Code Sections 67-6506
(Council members with conflicts of interest may not participate in decisions), 67-6535
(permit decisions are to be based on standards), and 67-6536 (requiring a verbatim record
of all hearings). Burch also claims: “Idaho Code §§ 67-6519(4) and 67-6521(1)(d), as
informed by Idaho Code § 67-6535,… [entitle him] to injunctive and prospective relief”
MEMORANDUM DECISION AND ORDER - 23

for violations of the due process guaranteed by Article I, Section 13 of the Idaho
Constitution. (Dkt. 1 ¶ 110-111.)
LLUPA’s judicial review provisions are the “exclusive” avenue for review of all
land use decisions by Idaho’s local governments. Giltner Dairy, LLC v. Jerome County,
249 P.3d 358, 361 (Idaho 2011). In other words, a government action pursuant to LLUPA
is not reviewable except as authorized by LLUPA. Burns Holdings, LLC v. Madison
County Bd. of County Com’rs, 214 P.3d 646, 662 (Idaho 2009). Under LLUPA, land use
permit applicant must seek judicial review of a permit denial within 28 days of
exhausting all administrative remedies under the local ordinance. Idaho Code §§ 676519, -6521.
Burch does not cite, and the Court cannot identify, an Orofino City Code provision
granting additional administrative remedies once the City Council denies a special use
permit. Indeed, the parties agree that the City Council reached a final decision to deny
Burch’s special use permit application. There is also no dispute that the City of Orofino
sent Burch written notice of that decision on September 4, 2012, nor does Burch contend
the city’s notice is somehow ineffective. Hence, Burch exhausted his administrative
remedies before filing his complaint on December 27, 2012—113 days after the City sent
notice.
Arguing only that the Court's jurisdiction over his state law claims renders
LLUPA’s judicial review provision inapplicable, Burch’s opposition to the City
Council’s motion for summary judgment does not address timeliness. While it is true the
Court has supplemental jurisdiction over Burch’s state law claims, see generally City of
MEMORANDUM DECISION AND ORDER - 24

Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 164-68 (1997) (discussing supplemental
jurisdiction), it does not follow that the Court must jettison the relevant state law. When
considering supplemental state law claims, federal courts apply the relevant state statute
of limitations. Notrica v. Bd. of Supervisors of San Diego County, 925 F.2d 1211 (9th
Cir. 1991). After all, “[i]t is not the function of a federal court to rescue a party from the
danger of limitation by permitting the litigation of inappropriate matters in federal court.”
Id. at 1216 (internal quotations omitted).
The 28-day limitation on judicial review prescribed by LLUPA governs Burch’s
state law claims, whether filed in this Court or in Idaho state court. By any reasonable
measure, Burch’s claims under LLUPA are untimely. Moreover, Article I, Section 13 of
the Idaho Constitution does not provide a free-standing cause of action. Burch cites no
authority besides LLUPA that would entitle him to relief on his state constitutional claim.
Thus, the state constitutional claim is also time barred because it is intertwined with
Burch’s untimely LLUPA claims.
2.

Motion to Amend Complaint
Burch timely moved to amend his Complaint the day before the Court’s deadline

for amended pleadings. The proposed amended complaint would add three new features
to the Complaint: (1) a substantive due process claim; (2) new factual allegations
concerning a special use permit granted to a law office in Orofino’s R-3 zone; (3) a
compensatory damages claim under 42 U.S.C. § 1988.
Rule 15 allows amendment after a responsive pleading only with leave of the
Court or the opposing party’s written consent. Fed. R. Civ. P. 15(a)(2). Typically, leave
MEMORANDUM DECISION AND ORDER - 25

to amend is liberally granted, but leave is properly denied when amendment would be
futile. DCD Programs, LTD. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). “[F]utility
includes the inevitability of a claim’s defeat on summary judgment.” Johnson v. Am.
Airlines, Inc., 834 F.2d 721, 724 (9th Cir. 1987). The City Council argues, and the Court
agrees, all of Burch’s proposed amendments are futile.
As with Burch’s procedural due process claim, a substantive due process claim is
viable only when it involves the deprivation of a constitutionally protected interest.
Gerhart, 637 F.3d 1013. Because LLUPA and the Orofino City Code clearly provide the
City Council broad discretion to grant or deny special use permits, Burch lacks a
legitimate claim of entitlement to such a permit. Accordingly, Burch’s proposed
substantive due process claim fails for the same reason as his procedural due process
claim.
Likewise, additional facts do not save Burch’s equal protection claim. In the land
use context, the similarly situated requirement sets a high bar. As discussed above, the
City’s approval of a special use permit for a law office in an R-3 zone does not bolster
Burch’s challenge to a permit denial in an R-2 zone. The R-3 classification is less
restrictive than R-2 and permits off-street parking development. In addition, the City
Council presented evidence that the R-3 application did not raise the same traffic,
parking, and congestion concerns as Burch’s application. (Dkt. 39 at 10 (citing 2d
Montambo Aff. ¶ 10-11, Dkt. 34-1).) Simply put, the two law offices are not similarly
situated. See Thornton, 425 F.3d at 1167-68. Therefore, adding new facts about the R-3
law office would not advance Burch’s class of one equal protection claim.
MEMORANDUM DECISION AND ORDER - 26

Finally, because each of Burch’s theories of liability is subject to summary
judgment, it would be futile to amend the Complaint with additional damage claims. The
motion to amend the complaint will be denied because the proposed amendments would
inevitably be defeated on summary judgment.
3.

Motion for Extension of Time to Complete Discovery
Burch requests additional time to conduct discovery because “discovery to date

has been limited… and because further discovery may be necessary to achieve full
resolution of this controversy.” (Dkt. 58 at 2 (emphasis added).) His request comes five
months after the Court partially granted his Rule 56(d) motion to defer consideration of
the motion for summary judgment pending discovery. (Dkt. 38.) Burch is technically
correct that discovery was limited by the Court’s Order dated April 29, 2013, but he
overlooks the source of the limitation—his largely conclusory allegations and Rule 56(d)
itself. Burch specifically requested only information concerning “the City Council’s
issuance of special use permits to similarly situated properties and the identity of the
persons responsible for the audio recordings of the public hearings.” (Id. at 10.)
The Court permitted discovery on these subjects, and Burch seized the
opportunity. Not only did the City Council respond to Burch’s interrogatories, but Burch
deposed every defendant. Now, Burch asserts, without more, that “additional discovery in
this controversy will be necessary.” This assertion fails not only because it lacks
specificity, see State v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998), but also because no
controversy remains.

MEMORANDUM DECISION AND ORDER - 27

A district court may grant summary judgment, despite a party’s assertion that
additional discovery is necessary, when additional discovery would not preclude
summary judgment. Qualls ex rel. Qualls v. Blue Cross of California, Inc., 22 F.3d 839
(9th Cir. 1994). According to the analysis above, none of Burch’s existing or proposed
claims withstand summary judgment. Burch’s motion to extend discovery gives no
indication that additional discovery would preclude summary judgment. In fact, the
motion does not identify what, if any, additional discovery Burch seeks. Thus, the motion
will be denied as moot.
4.

Motion to Supplement
Months after the City Council’s motion for summary judgment was fully briefed

and nearly one week after the Court took the above motions under advisement, Burch
moved to supplement his summary judgment response. Burch requests the Court consider
a report prepared by Dr. Ahmed Abdel-Rahim, a professional engineer licensed in Idaho.
Dr. Abdel-Rahim’s report purports to show: (1) an eight-child daycare on H Street
produces more “trips” than a single-tenant office building with two employees on
Kalaspo Avenue (a proxy for Burch’s proposed law office) and (2) unlike the daycare,
“morning peak” traffic for Burch’s “office building” is not likely to coincide with that of
the adjacent streets. (Abdel-Rahim Rpt. at 2, Dkt. 66-1.)
Burch claims that the motion to supplement is made “pursuant to Dist. Idaho Loc.
Civ. Rule 7.” (Dkt. 65 at 1.) As an initial matter, there is no “Local Rule 7” in the District
of Idaho. There is, however, a Local Rule 7.1, which pertains to motion practice and

MEMORANDUM DECISION AND ORDER - 28

which the Court will presume is the basis for Burch’s motion. Even so, Burch’s reliance
on this rule is unavailing.
Typically, Local Rule 7.1(c) requires a response to a motion for summary
judgment, along with any supporting materials, to be filed 21 days after service of the
motion on the non-moving party. However, the Court extended Burch’s response
deadline three times, ultimately moving the default March 27, 2013 deadline to July 22,
2013. The Court granted each extension because Burch articulated good cause. See Fed.
R. Civ. P. 6(b)(1). But, because the motion to supplement came long after the response
deadline and days after the Court took the matter under advisement, Burch must show not
only good cause for more time, but also that the late motion to supplement was the result
of excusable neglect. Id.
The Court analyzes Burch’s claim of “excusable neglect” according to four
factors: “(1) the danger of prejudice to the opposing party; (2) the length of the delay and
its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the
movant acted in good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261
(9th Cir. 2010). The Court finds Burch’s motion to supplement is made in good faith.
However, the remaining three factors indicate Burch’s neglect is not excusable.
The City Council underscores the potential for prejudice, noting it “expended
considerable resources” arguing its motion for summary judgment on a record that did
not contain Dr. Abdel-Rahim’s report. (Dkt. 68 at 3.) On the other hand, Burch
characterizes the delay as “short” and thus unlikely to prejudice the City Council because

MEMORANDUM DECISION AND ORDER - 29

it received the report as part of Burch’s expert disclosures. (Dkt. 70 at 7.) That is a
dramatic mischaracterization of the posture of this case.
Burch has been in possession of Dr. Abdel-Rahim’s report since August 13, 2013.
(Id. at 6.) Oral argument on all pending motions took place on December 4, 2013, almost
four months after Burch received the report. During oral argument, the Court specifically
asked the parties whether the record contained evidence of traffic problems associated
with the daycare. Despite this clear prompt from the Court, Burch did not mention the
report and, instead, Burch admitted there was nothing in the record. Then, five days after
the matter was taken under advisement, Burch moved to add the report to the record.
Allowing Burch to supplement the record at this late stage would, at a minimum, require
the City Council to submit additional briefing on a matter that was ripe for a decision in
its favor. Such delay and added expense would clearly be prejudicial to the City Council.
According to Burch, the tardy motion to supplement resulted from a combination
of inadvertence and inexperience. Pro se litigants “are required to become familiar with
and comply with all Local Rules of this District, as well as the Federal Rules of Civil…
Procedure.” Dist. of Idaho Loc. Civ. R. 83.7. And it should go without saying that
attorneys practicing in any court are expected to know and follow applicable rules and
procedures. Indeed, it is Burch’s professional responsibility as a licensed attorney to
competently represent his clients. See Idaho R. Prof’l Conduct 1.1. That obligation is not
diminished where, as here, an attorney represents himself. In all cases, “[c]ompetent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.” Id. Thus, a mistake or, worse, failure to
MEMORANDUM DECISION AND ORDER - 30

comprehend the Court’s procedural rules is not a good reason to supplement the record so
late in this proceeding.
The likelihood of prejudice to the City Council, the long delay, and Burch’s
inadequate reasons for supplementation indicate his neglect is not excusable.
Nevertheless, the Court is mindful that the general purpose of its procedural rules is to
ensure a decision on the merits. Ahanchian, 624 F.3d at 1258-59. For that reason, the
Court will consider the substance of the report to determine what, if any, impact it would
have on this proceeding.
Burch claims that the report raises a genuine issue of fact material to his class of
one equal protection claim. Specifically, Burch contends the report shows the daycare on
H Street produces more traffic than a single-tenant office building on Kalaspo Avenue.
But this information does not alter the conclusion that the City Council had a rational
basis for distinguishing Burch’s special use permit application from that of the daycare
operator. The report is dated August 9, 2013—it did not exist when the City Council
considered Burch’s special use permit application or Dunaway’s application for the
daycare permit. It would be inappropriate for the Court to apply a retrospectoscope to the
City Council’s decision by considering evidence not before the City Council in either
permit proceeding. Further, Dr. Abdel-Rahim’s analysis does not indicate that the traffic
caused by the daycare is in any way problematic; it merely states the daycare produces
more “trips” at a time that coincides with the “morning peak” for the adjacent streets.
Observations concerning traffic on H Street do not show the City Council’s concerns

MEMORANDUM DECISION AND ORDER - 31

with Kalaspo Avenue were unfounded,6 nor do they undercut any of the City Council’s
other rationales for denying Burch’s special use permit application. In fact, the report
constitutes an admission that Burch’s proposed law office would increase the number of
“trips” on Kalaspo Avenue, lending credence to the City Council’s concern over
“[i]ncreased traffic conditions.” (Dkt. 1-1 at 26.) Simply put, Dr. Abdel-Rahim’s report
would not alter the Court’s decision on the merits.
The Court finds that it would be highly prejudicial to allow Burch to ambush the
City Council with Dr. Abdel-Rahim’s post-hoc analysis. Burch did not disclose the report
to the Court until months after the applicable deadline, nor did he even mention it during
oral argument on the very issue it purportedly disputes—the rational basis for the City
Council’s decision. Now, Burch cites only inadvertence and inexperience as the reasons
for the delay. This amounts to neither excusable neglect nor good cause for
supplementation so late in this case. Therefore, the motion to supplement will be denied.
CONCLUSION
The essential defect in Burch’s suit against the City Council is his reliance on the
federal constitution rather than state law. Land use decisions—especially the
discretionary special use permit at issue here—involve matters of local concern and
expertise. Indeed, “[t]he Supreme Court has erected imposing barriers… to guard against
the federal courts becoming the Grand Mufti of local zoning boards.” Hoehne v. County
of San Benito, 870 F.2d 529, 532 (9th Cir. 1989). Lacking a legitimate claim of
6

There is nothing in the record to suggest that traffic on H Street is problematic. But, as
discussed above, there is evidence in the record to suggest that additional traffic or congestion on
Kalaspo Avenue can rationally be considered undesirable.
MEMORANDUM DECISION AND ORDER - 32

entitlement to the special use permit and unable to demonstrate that similarly situated
applicants were treated differently without rational basis, Burch cannot prevail on his
federal constitutional claims. While judicial review under LLUPA might have afforded a
remedy, Burch’s state law claims also fail because he did not seek judicial review within
28 days of the City Council’s final decision. Therefore, the City Council is entitled to
summary judgment on all of Burch’s claims. None of the facts or legal theories in
Burch’s proposed amended complaint or motion to supplement would avoid this result.
ORDER
Based on the foregoing, the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED:
1) Defendants’ Motion for Summary Judgment (Dkt. 22) is GRANTED.
2) Plaintiff’s Motion to Amend Complaint (Dkt. 36) is DENIED.
3) Plaintiff’s Motion to Extend Discovery (Dkt. 58) is DENIED AS MOOT.
4) Plaintiff’s Motion to Supplement Plaintiff’s Response to Defendant’s
Motion for Summary Judgment (Dkt. 65) is DENIED.
5) Final judgment dismissing this action with prejudice shall be entered in this
case accordingly.
January 03, 2014

MEMORANDUM DECISION AND ORDER - 33