Kinzli v. City of Santa Cruz

Decision Date07 August 1987
Docket Number86-1624,Nos. 86-1504,s. 86-1504
Citation818 F.2d 1449
PartiesMargaret KINZLI; Evelyn Goossen; Philip Kinzli; Ernest Kinzli, Plaintiffs- Appellants, v. CITY OF SANTA CRUZ, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Jess S. Jackson, San Francisco, Cal., for plaintiffs-appellants.

Gerald Bowden, Santa Cruz, Cal., for defendant-appellee.

Dennis M. Eagan, San Francisco, Cal., for amicus curiae, State of Cal. and Cal. Coastal Committee.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, PREGERSON and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

The Kinzli plaintiffs (Kinzlis) brought this action against the City of Santa Cruz (City), alleging that the City violated their federal and state rights as property owners. The Kinzlis now appeal the district court's holdings in favor of the City, specifically: (1) the district court's dismissal on the merits of the Kinzlis' claim that the adoption of a local ordinance deprived them of their property without just compensation in violation of the fifth and fourteenth amendments of the United States Constitution; (2) the district court's dismissal on the merits of the Kinzlis' claim of a violation of their right to equal protection; (3) the district court's dismissal of their claim for relief under 42 U.S.C. Sec. 1983; and (4) the district court's grant of the City's motion for summary judgment on the Kinzlis' claim of denial of substantive due process rights and their claim of federal constitutional violations arising from the City's 1970 condemnation of their property. We hold that all of the Kinzlis' claims were not ripe for adjudication by the district court, and therefore vacate the district court's judgment.

I
A

The factual background of the Kinzlis' claims is exhaustively presented in the district court's published opinion, Kinzli v. City of Santa Cruz, 620 F.Supp. 609, 611-615 (N.D.Cal.1985). The facts relevant for the purposes of this appeal are summarized as follows:

The Kinzli property which is the subject of this action is located adjacent to the city limits of Santa Cruz and was purchased by the Kinzli family in 1925. Over the years, the Kinzli property gradually became surrounded by urban development, although the property has retained its rural character. Id. at 611.

In 1968, the City filed a condemnation action in state court to acquire approximately 4 acres of the Kinzli property for the construction of a public street, Broadway-Brommer Road. A stipulated judgment was entered in this condemnation proceeding in 1970, granting the City a right-of-way through the property. Since this time, the City has represented to the Kinzlis that Broadway-Brommer Road would be built and that their property could be developed for commercial and higher density residential purposes. These representations apparently continued until at least October of 1978, when the City filed, then abandoned, a second condemnation action to acquire more of the Kinzli property. The Broadway-Brommer Road was never built. Id. at 611-12.

In 1979, the voters of the City adopted an initiative ordinance entitled "City of Santa Cruz Measure O Greenbelt and Low Growth General Plan Policy Ordinance" (Measure O). Measure O limits the uses available to greenbelt land, which includes the Kinzli property, through 1990. There are eight land uses allowed under section 3 of the Measure, including one catchall: "Other uses [are allowed] which maintain the open space character of the land." 1 Section 4 of Measure O prohibits the City from providing certain urban services to the greenbelt land. The City is required under section 5 to revise its General Plan in accordance with the Measure. Finally, under section 8, no part of Measure O may be "amended or repealed except by a vote of the people." Id. at 613.

The Santa Cruz City Council subsequently enacted the Greenbelt Overlay Ordinance (GBO), which implements the Measure and explains the requirements for special use permits and conditions for the extension of urban services to greenbelt land. Santa Cruz Municipal Code ch. 24.53, Sec. 24.53.2000 (1981). The GBO allows a number of specific uses under special use permits, including uses which "maintain the open space character of the land." Id. Sec. 24.53.2010. 2 The GBO allows the extension of urban services to greenbelt land if such extension is consistent with the GBO and is approved by both the City Department of Water and the Department of Public Works. Id. Sec. 24.53.2040.

The Kinzli property falls within the greenbelt land covered by Measure O and the GBO. The City acknowledges that Measure O affects the uses available for the Kinzli property, such that if Measure O and the GBO had not been adopted and the superseded 1964 General Plan was still in force, the Kinzli property would now be designated for high density development. Kinzli, 620 F.Supp. at 613.

The Kinzlis attempted to sell the property in 1978 and 1979 under contracts which were conditioned upon the receipt of permits from the City for residential development. One potential purchaser/developer filed an application on behalf of the Kinzlis with the City for residential units on the property. However, he did not pursue the application once he was told by a staff engineer for the Department of Public Works that the City could not provide water services to the property. An unofficial map then used by the Department indicated that this was the case. Id.

While Measure O prevents the uses contemplated in this abandoned application, the Kinzlis have not submitted an application for a permit allowing any other potential use. Id. at 613. The securing of a development permit is a process requiring the consideration and approval of an application by numerous state and local agencies. It entails negotiation, modification of plans, and the filing of an Environmental Impact Report. This process has not been set in motion by the Kinzlis; the developer initiated the permit process but withdrew his application for a residential use permit at an early stage. Id. at 613-14.

B

In 1980, the Kinzlis brought this action against the City, charging that the adoption of Measure O, as applied to their property, and the City's conduct relating to the 1970 condemnation proceedings, violated their federal constitutional and civil rights and their rights under California law. At trial, the district court focused on the questions of whether the Kinzlis' taking claim was ripe for adjudication and, if so, whether a taking had occurred.

In a published decision, the district court held that there had been no taking of the Kinzlis' property and therefore no violation of their rights under the fifth and fourteenth amendments, such that they were not entitled to relief under 42 U.S.C. Sec. 1983. Kinzli, 620 F.Supp. 609. In its subsequent unpublished order of December 17, 1985, the district court granted summary judgment for the City regarding the Kinzlis' claims relating to the 1970 condemnation proceedings, explaining that these claims were not ripe for review. The court also found that there had been no equal protection violation. The district court then exercised its discretion and dismissed Kinzlis' pendent California state law claim for inverse condemnation, which was based upon the same facts as the federal claims.

On appeal, the Kinzlis argue that: (1) the district court erred in finding that beneficial uses for the property remained and, therefore, that the City's restrictions on the property's available uses did not effect a taking in violation of the fifth and fourteenth amendments; (2) the district court violated procedural due process by finding that the City's regulation of the Kinzli property did not deny the Kinzlis their equal protection rights where their equal protection claim was not heard at trial; and (3) the district court erred in dismissing claims based upon the City's 1970 condemnation proceedings as not ripe for adjudication.

II

We first address the Kinzlis' contention that the district court erred in finding that the adoption of Measure O did not deprive them of property without compensation in violation of the fifth and fourteenth amendments 3 and that, as a result, they were not entitled to relief under 42 U.S.C. Sec. 1983. We believe that the district court erred, not because the court should have found that a taking had occurred, but because it should have dismissed the takings claim as not ripe for adjudication. The district court applied an incorrect ripeness test, prematurely reaching the merits and resting its decision on the finding of "no taking." Id. at 616-17, 624. 4

The district court properly recognized that under Supreme Court authority, the Kinzlis' claim that Measure O effected a "taking" as applied to their property does not, as a rule, present a concrete controversy ripe for adjudication unless the Kinzlis have first submitted a development plan or applied for a land use permit. Kinzli, 620 F.Supp. at 616. See also MacDonald, Sommer & Frates v. Yolo County, --- U.S. ----, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986); Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3117, 87 L.Ed.2d 126 (1985); Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). Recently, in MacDonald, the Supreme Court explained that to assert a regulatory takings claim, a plaintiff must establish its two components: (1) that the regulation has gone so far that it has "taken" plaintiff's property, and (2) that any compensation tendered is not "just." MacDonald, 106 S.Ct. at 2566.

To establish this first component of a regulatory takings claim, "an essential prerequisite" must be present: there must be

a final and authoritative determination of the type and intensity of development legally permitted on the subject...

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