North Pacifica, LLC. v. City of Pacifica

• Decision Date: 26 November 2002
• Docket Number: No. C-01-4823-EMC.,C-01-4823-EMC.
• Citation: 234 F.Supp.2d 1053
• Parties: NORTH PACIFICA, LLC, Plaintiff, v. CITY OF PACIFICA, et al., Defendants.
• Court: U.S. District Court — Northern District of California

234 F.Supp.2d 1053

NORTH PACIFICA, LLC, Plaintiff, v. CITY OF PACIFICA, et al., Defendants.

No. C-01-4823-EMC.

United States District Court, N.D. California.

November 26, 2002.

COPYRIGHT MATERIAL OMITTED

Jacquelynn C. Pope, Warshaw & Pope, Hermosa Beach, CA, for plaintiff.

Michelle Marchetta Kenyon, McDounough, Holland & Allen, Oakland, CA, for defendant.

ORDER GRANTING PLAINTIFF'S MOTION TO RECONSIDER ITS PRIOR ORDER (Docket No. 50) AND GRANTING DEFENDANT'S MOTION TO DISMISS (Docket No. 8)

EDWARD M. CHEN, Magistrate Judge.

I. FACTUAL SUMMARY AND PROCEDURAL HISTORY¹

A. First Amended Complaint

This suit by North Pacifica, LLC (hereinafter referred to as "North Pacifica") arises out of alleged violations of law by the City of Pacifica² in its handling and processing of North Pacifica's Development Permit Application for the construction of twenty-four (24) residential units in an area known as the "Bowl." The Permit Application was filed on July 31, 1999.

After lengthy delays in obtaining an application completion date from the City, North Pacifica filed in the San Mateo Superior Court, a Petition for a Writ of Administrative Mandate and/or Traditional Mandate on November 9, 2001, challenging the June 5, 2001 date of completion of the application deemed by the City,³ a date which permitted the City to avoid violation of laws governing the completion of an Environmental Impact Report. SAC ¶ 53. On December 10, 2001, North Pacifica also filed in San Mateo County, a complaint against the City claiming: [1] denial of substantive Due Process; [2] denial of Equal Protection; [3] violation of 42 U.S.C. § 1983; and [4] declaratory relief (seeking determination of an earlier completion date and of North Pacifica's right to the City's certification of an EIR within one year of the completion date).

On December 7, 2001, North Pacifica filed an identical complaint against the City in this Court. North Pacifica subsequently filed the First Amended Complaint on January 7, 2002, with the same claims. On February 11, 2002, the City filed a Motion to Dismiss Plaintiff's First Amended Complaint.

On July 30, 2002, this Court dismissed Plaintiff's substantive Due Process claim (the first and a portion of the third causes of action) for failure to establish a protectable property interest: 2) denied Defendant's motion to dismiss Plaintiff's Equal Protection claim (the second cause of action); and 3) dismissed Plaintiff's declaratory relief claim (the fourth cause of action) after declining to exercise supplemental jurisdiction. The City has since approved North Pacifica's application to develop the Bowl, thus leaving as the only relief at issue damages for the City's alleged violation of North Pacifica's rights.

On September 5, 2002, North Pacifica filed a motion for reconsideration under Civil Local Rule 7-9, and/or for relief from inadvertence and/or neglect pursuant to Federal Rules of Civil Procedure, Rule 60(b). North Pacifica requests that this Court reconsider its Order of July 30, 2002 in which it dismissed North Pacifica's substantive due process claim, contending that the Court erred in finding no protectable property interest.

II. ANALYSIS

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983). Dismissal of an action pursuant to Rule 12(b)(6) is appropriate only where it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991), quoting, Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir.1995). It is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support his or her claims. Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir.1997). In reviewing such a motion, the Court must assume all factual allegations to be true and must construe them in the light most favorable to the nonmoving party. North Star, 720 F.2d at 580.

A. North Pacifica's Motion to Reconsider

On July 30, 2002, this Court held that North Pacifica could not set forth facts in support of its substantive due process claim because the Court found that neither the Pacifica Municipal Code, the California Environmental Quality Act ("CEQA"), nor the Permit Streamlining Act ("PSA") contained mandatory criteria that substantially constrained the City's discretion to deny the Development Permit. North Pacifica now moves for reconsideration under Civil Local Rule 7-9, and/or for relief from inadvertence and/or neglect pursuant to Federal Rules of Civil Procedure, Rule 60(b). The Local Rules allow for reconsideration when the moving party can show a "manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order." Rule 7-9(b)(3). Moreover, a motion for reconsideration may not "repeat any oral or written argument made by the applying party in support of or in opposition to the interlocutory order which the party now seeks to have reconsidered." Rule 7-9(c). After a court enters an order, it may set aside or change its order pursuant to either the local rules or Rule 60. Ground v. Sullivan, 785 F.Supp. 1407, 1411 n. 3 (S.D.Cal.1992).

1. Property Interest

North Pacifica's motion for reconsideration is limited to this Court's ruling regarding the PSA. In its previous order, this Court assumed that North Pacifica's substantive due process relied upon establishment of a property interest under California Government Code § 65589.5(d) of the PSA. This Court held that § 65589.5(d) did not apply because it applied only to low-income housing developments. July 30, 2002 Order, at 13-14. North Pacifica concedes that it inadvertently failed to specify that § 65589.5(j) was the particular subsection upon which it relies, and it now wishes to bring to the Court's attention that fact that § 65589.5(j) applies to all development permits, not just low-income and affordable housing. North Pacifica contends § 65589.5(j) limits the City's discretion in denying North Pacifica's development application in the instant case and thus creates a protectable property interest.

As noted above, this Court's prior ruling was based, in part, upon a determination that § 65589.5 applies to only very low, low, or moderate incoming housing projects. The title of § 65589.5 ("Housing development projects affordable to very low, low, or moderate income households; disapproval; conditions") supports this conclusion, as do most of its subsections. This Court acknowledges that it did not consider § 65589.5(j), so reconsideration is therefore warranted.

Section 65589.5(j) states:

When a proposed housing development project complies with applicable, objective general plan and zoning standards and criteria in effect at the time that the housing development project's application is determined to be complete, but the local agency proposes to disapprove the project or to approve it upon the condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by substantial evidence on the record that both of the following conditions exist:

(1) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.

(2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.

The Court finds that both the plain meaning and legislative history of § 65589.5(j) indicate that this subsection is not restricted to low income housing development projects but instead applies to all housing development projects including the one at issue here. Whereas subsection (d) refers to disapproval of a "housing project for very low, low- or moderate-income households," subsection (j) on its face is not so limited. It covers any "proposed housing development project." When the language of a statute is unambiguous, the plain meaning governs. Lennane v. Franchise Tax Bd., 9 Cal.4th 263, 268, 36 Cal.Rptr.2d 563, 885 P.2d 976 (1994). Moreover, when the California Legislature uses a term or phrase in one portion of a statute but excludes it from another, courts are not to imply an intent to include the missing term in the part of that statute were the term or phrase is excluded. People v. Gardeley, 14 Cal.4th 605, 621-22, 59 Cal.Rptr.2d 356, 927 P.2d 713 (1996); Cal.Code of Civ. Proc. § 1858. Moreover, § 65589.5(j) would be largely duplicative of § 65589.5(d) if subsection (j) applied only to low income housing. Landrum v. Superior Court 30 Cal.3d 1, 14, 177 Cal.Rptr. 325, 634 P.2d 352 (1981) ("[E]very statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.") (citing Stafford v. Realty Bond Service Corp. 39 Cal.2d 797, 805, 249 P.2d 241 (1952)).

This Court takes judicial notice of relevant legislative documents supplied by North Pacifica in order to better understand the California Legislature's intent regarding § 65589.5. See Post v. Prati, 90 Cal.App.3d 626, 633-35, 153 Cal.Rptr. 511 (19...