Carpinteria Valley Farms v. County, Santa Barbara

• Citation: 344 F.3d 822
• Decision Date: 25 June 2003
• Docket Number: No. 01-57218.,01-57218.
• Parties: Carpinteria Valley Farms, Ltd., a California limited partnership, f/k/a Kbdr Properties, Ltd., a California limited partnership; Yeager Holdings, Inc., a Colorado corporation; Patrick M. Nesbitt, individually and as Trustee of the Patrick M. Nesbitt Family Trust, Plaintiffs-Appellants, v. The County of Santa Barbara, a municipal corporate entity; Santa Barbara County Planning and Development Department, a County department; Dan Gira; Noel Langle; al Mccurdy; Patty Miller; June Pujo; Jennifer Trunk, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

344 F.3d 822

Carpinteria Valley Farms, Ltd., a California limited partnership, f/k/a Kbdr Properties, Ltd., a California limited partnership; Yeager Holdings, Inc., a Colorado corporation; Patrick M. Nesbitt, individually and as Trustee of the Patrick M. Nesbitt Family Trust, Plaintiffs-Appellants, v. The County of Santa Barbara, a municipal corporate entity; Santa Barbara County Planning and Development Department, a County department; Dan Gira; Noel Langle; al Mccurdy; Patty Miller; June Pujo; Jennifer Trunk, Defendants-Appellees.

No. 01-57218.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2003 — Pasadena, California.

Filed June 25, 2003.

Amended September 23, 2003.

A. Barry Cappello, Santa Barbara, California, and Norman Pine, Sherman Oaks, California, for the plaintiffs-appellants.

David Pettit, Los Angeles, California, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Nora M. Manella, District Judge, Presiding. D.C. No. CV-00-10154-NM.

Before: Cynthia Holcomb Hall, David R. Thompson, and Marsha S. Berzon, Circuit Judges.

ORDER

IT IS HEREBY ORDERED that the opinion filed June 25, 2003, and published at 334 F.3d 796, is amended as follows:

1. Page 798, second paragraph, end of the second sentence which concludes "the County") — insert the following sentence:

He alleged that the County had pursued a "go tough on Nesbitt" policy which encompassed several distinct constitutional violations.

2. Page 798, second paragraph, clause that ends with "were not imposed on similarly situated property owners;" — insert after "owners;" a reference to footnote 1. Then, at the bottom of page 798, insert as footnote 1 the following:

1. The equal protection count of Nesbitt's complaint draws on the same series of events that underlie his First Amendment count; he alleges

that this improper conduct [not imposed on similarly situated persons] was pursuant to a County policy and/or custom under which County officers and policymakers directed that planning regulations be implemented in a retaliatory and disparate fashion as against Plaintiffs, based on Plaintiffs' protected activities, and under which County officers and policymakers ratified said disparate treatment of Plaintiffs.

3. Page 799, end of the second full paragraph that concludes with the words "permitting delays have lengthened." — add the following sentence:

He alleges that Planning Department staff members admitted that, due to "political pressure," they were applying a "go tough on Nesbitt" policy.

4. Page 800, after the citation to Norco Constr., Inc., in the upper, left-hand portion of the page, at the end of the paragraph, change the period to a semi-colon and add: "; Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir.1989)."

5. Page 802, headnote [6], line 9 of the paragraph that begins "Although the County" — delete the parenthetical that begins "e.g., restricting him from playing" and ends "develop his property." Replace that parenthetical with:

(e.g., retaliation for exercising his First Amendment rights and restricting him from playing polo on his property for nine years while waiting for a major conditional use permit).

6. Page 802, upper right-hand portion of the page, at the end of the paragraph that concludes "demands made on homeowner)." — change the period to a semi-colon and add:

see also id. at 565-66 (Breyer, J., concurring) ("This case ... does not directly raise the question whether the simple and common instance of a faulty zoning decision would violate the Equal Protection Clause. That is because the Court of Appeals found that in this case respondent had alleged an extra factor as well — a factor that the Court of Appeals called `vindictive action,' `illegitimate animus,' or `ill will.'").

7. Page 802, fourth full paragraph that begins "The fact that Nesbitt's constitutional claims arise" — delete the entire paragraph and replace it with the following:

Our decision today does not overrule or limit the traditional ripeness test for "as applied" takings claims or claims for which the analysis depends upon such claims. See S. Pac. Transp., 922 F.2d at 507; Norco Constr., 801 F.2d at 1145; Hoehne, 870 F.2d at 532. Rather, due to the egregious facts Nesbitt has alleged (e.g., the Planning Department staff members' admission of a "go tough" policy and the County's nine-year delay in reaching a decision on the major conditional use permit for his recreational polo field), we conclude that this case is directly analogous to Harris, which reasoned that:

Even if the County has not made a final and authoritative determination of the development allowed on Harris' property, he has been deprived of the commercial use of his land.... The fee and the deprivation of the commercial use of his land amount to actual, concrete injuries which are separate from any taking Harris may have suffered. These injuries thus have already occurred and do not depend on the finality of the County's determination of the permissible uses of his property. Therefore, because Harris' procedural due process claim does not directly arise from, or rely on, his taking claim, we hold that it is not subject to the ripeness constraints applicable to regulatory takings, and we may review it.

904 F.2d at 501 (emphasis added); cf. Herrington v. County of Sonoma, 834 F.2d 1488, 1495 (9th Cir.1987), amended by 857 F.2d 567 (1988). Similarly, Nesbitt's alleged First Amendment, procedural due process, and equal protection injuries stem from the retaliation he claims. As in Harris, these alleged injuries are separate from any purported taking. They are also independent of whether or not the County's decisionmaking has been completed.

In the same vein, we have considered a complaint by landowners whose motel was shut down by the City of San Bernardino as a health and safety hazard. Patel v. Penman, 103 F.3d 868, 874 (9th Cir.1996). The Patel plaintiffs argued that the City unfairly targeted their property with the purpose of driving them out of business. Their complaint alleged, inter alia, claims under 42 U.S.C. § 1983 for violations of procedural and substantive due process and equal protection. Patel, 103 F.3d at 873. On appeal, we affirmed summary judgment in favor of the City on the substantive due process claim because that claim was preempted by the Takings Clause. Id. at 873-75. We also affirmed summary judgment in favor of the City on the related equal protection claim, but did so by reaching the merits, concluding that the petitioners had "offered absolutely no evidence that they were treated differently from others who were similarly situated." Id. at 877. On the procedural due process claim, which had proceeded to trial and resulted in a verdict in favor of the City, we reversed because "[n]o evidence whatsoever was presented to the jury to prove that the [petitioners] were given notice and an opportunity to be heard after the closure of the motel." Id. at 878.

Thus, in certain limited and appropriate circumstances, claims under 42 U.S.C. § 1983 concerning land use may proceed even when related Fifth Amendment "as applied" taking claims are not yet ripe for adjudication. See also Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1233, 1238-41 (9th Cir. 1994) (reaching the merits of the appellants' equal protection claim based on alleged racial animus, even though we found the companion "as applied" takings challenge unripe under Williamson). The fact that Nesbitt's constitutional claims arise in the context of the County's permitting process does not render those claims "unripe," so long as Nesbitt otherwise meets ripeness requirements.

8. Page 803, upper left-hand portion of the page, end of the paragraph following the cite to Harris, 904 F.2d at 501, insert a reference to footnote 5, and at the bottom of the page insert as footnote 5:

5. While we conclude that Nesbitt's allegations are not subject to the Williamson finality requirements applicable to "as applied" taking claims, we do not thereby decide that his First Amendment, procedural due process, and equal protection claims are exempt from general ripeness requirements, nor do we express any opinion on the merits of those claims. Thus, our decision affirms our intention that "[t]he Courts of Appeals were not created to be `the Grand Mufti of local zoning boards,' nor do they `sit as super zoning boards or zoning boards of appeals.'" Dodd v. Hood River County, 136 F.3d 1219, 1230 (9th Cir.1998) (citing Hoehne, 870 F.2d at 532; Raskiewicz v. Town of New Boston, 754 F.2d 38, 44 (1st Cir.1985)) (alterations omitted).

IT IS FURTHER ORDERED that with the foregoing amendments, Judge Berzon has voted to deny the petition for rehearing and for rehearing en banc. Judges Hall and Thompson have voted to deny the petition for rehearing and have recommended denial of the petition for rehearing en banc. The full court has been advised of the petition for court rehearing en banc, and no judge of the court has requested en banc rehearing. See Fed.R.App. P. 35(b).

The petitions for panel rehearing and for rehearing by the court en banc are DENIED.

IT IS FURTHER ORDERED that no further petitions for rehearing or for rehearing en banc may be filed.

OPINION

DAVID R. THOMPSON, Circuit Judge.

Patrick M. Nesbitt and associated entities Carpinteria Valley Farms, Ltd., Yeager Holdings, Inc., and the Patrick M. Nesbitt Family Trust (collectively, "Nesbitt") own land in Santa Barbara County, California. Nesbitt wanted to develop the land in a variety of ways, including building a personal residence on it and using part of the property as a private polo field. The County imposed a number of requirements on this planned development which included, inter alia, requiring Nesbitt to apply for a major conditional use permit to play polo on the property and requiring him to accept numerous conditions for issuance of a...