Lockary v. Kayfetz

Decision Date30 October 1990
Docket NumberNo. 87-15044,87-15044
Citation917 F.2d 1150
CourtU.S. Court of Appeals — Ninth Circuit
PartiesMatthew LOCKARY; Susan Irland Lockary; Charles Gilbert; Phyllis Gilbert; James Macey; Anton Holter; Mesa Ranch, Inc., Plaintiffs-Appellants, v. Paul KAYFETZ; Victor Amoroso; Mary Lowry; Diana Lopez Farnsworth; Frederick B. McClellan; Peter Warshall; David L. Van Dusen; Doris Elaine Lemieux; Jack Bowen McClellan; William Niman; Judith Weston, as individuals; Bolinas Community Public Utility District, an incorporated public utility district; Bolinas Planning Council, a nonprofit corporation; John Goodchild; Gregory C. Hewlett; Steve Matson; Patricia L. Smith; Ray Moritz; Robert J. Scarola; Diane Middleton McQuaid; Frederick G. Styles, as individuals; Marin County Planning Department, Defendants-Appellees.

Richard M. Stephens and Orrin P. Finch, Pacific Legal Foundation, Sacramento, Cal., for plaintiffs-appellants.

R.S. Cathcart, Bledsoe, Cathcart, Leahy, Starr & Diestel, San Francisco, Cal., for defendant-appellee, Paul Kayfetz.

Richard E.V. Harris, Orrick, Herrington & Sutcliffe, San Francisco, Cal., for defendant-appellee, Bolinas Community Public Utility Dist.

Randall A. Padgett, Ginder, Belkin, Foster & Doyle, Berkeley, Cal., for defendant-appellee, William Niman.

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

Before WIGGINS, THOMPSON and TROTT, Circuit Judges.

WIGGINS, Circuit Judge:

Appellants, individuals, a partnership, and its general partners, are current and former owners of undeveloped land who contest the grant of summary judgment to appellees, a public utility district and its directors. On appeal, the individual appellants assert that appellees' refusal to grant water hookups to them constitutes a regulatory taking of their land and violates their constitutional rights to substantive due process and equal protection. Furthermore, individual appellants argue that the procedures used by appellees to enact a water moratorium and grant water hookups violates their right to procedural due process. Appellant partnership and its general partner assert a precondemnation blight taking. Both the individuals and partnership challenge the grant of legislative immunity to the public utility's directors for their enactment of water moratoriums. Furthermore, appellants contend that appellee Peter Warshall was dismissed pursuant to Fed.R.Civ.P. 41(a)(1). We have jurisdiction of appellants' timely appeal pursuant to 28 U.S.C. Sec. 1291 (1982).

I. STATEMENT OF FACTS AND PROCEEDINGS

Appellants are individuals and a limited partnership and its general partner that either have owned or now own undeveloped property in Bolinas, a community located in Marin County, California. The individual appellants purchased undeveloped land zoned for residential use on different dates. Charles and Phyllis Gilbert purchased their property in 1955; James Macey, in 1979; and Matthew and Susan Lockary, in 1981. Appellant Mesa Ranch, Inc., a general partnership, and Anton Holter, its general partner, owned approximately 210 acres intended for commercial development.

Appellees Bolinas Community Public Utility District and its directors (hereinafter "BCPUD") govern the public provision of water in Bolinas. In 1971, BCPUD enacted a moratorium on new water hookups and has continued to reenact that moratorium until its last reenactment in 1977 ("1977 reenactment"). The Gilberts, Lockarys and Macey have never received water from BCPUD. Unlike the Gilberts, Lockarys, and Macey, Mesa Ranch actually did receive water from BCPUD.

Appellants filed suit on November 10, 1982. The district court granted BCPUD's motion to dismiss as to some defendants and claims while preserving the present constitutional claims against BCPUD. Lockary v. Kayfetz, 587 F.Supp. 631 (N.D.Cal.1984) (Lockary I ). Although the district court denied the motion to dismiss BCPUD's directors from the suit, the district court granted them absolute legislative immunity for their enactment of the water moratoriums. Id. at 638.

Appellee Peter Warshall filed his answer to the appellants' complaint with the district court on April 10, 1984. On May 20, 1985, Mesa Ranch and Anton Holter filed a notice of voluntary dismissal of Peter Warshall pursuant to Fed.R.Civ.P. 41(a)(1).

Appellants then filed a motion for abstention due to an alleged ripeness defect. BCPUD thereafter filed a motion for summary judgment on all of appellants' claims. The district court denied appellants' motion for abstention and granted summary judgment in favor of BCPUD on November 16, 1987. Lockary v. Kayfetz, No. 82-6191 (N.D.Ca. Nov. 16, 1987) (Lockary II ).

II. DISCUSSION
A. STANDARD OF REVIEW

We review de novo a district court's grant or denial of a motion for summary judgment. Securities and Exchange Comm'n v. Belmont Reid & Co., 794 F.2d 1388, 1390 (9th Cir.1986). We may affirm a grant of summary judgment only if the trial court properly found that no genuine issue exists as to any material fact and that the moving parties are entitled to judgment as a matter of law. Loehr v. Ventura County Community College District, 743 F.2d 1310, 1313 (9th Cir.1984).

B. INDIVIDUAL APPELLANTS: THE GILBERTS, THE LOCKARYS, AND MACEY
1. The Takings Claim

The Gilberts, Lockarys and Macey first contend that the district court erred in denying their motion for abstention because their takings claim was not yet ripe. Ripeness is a jurisdictional issue, Austin v. City and County of Honolulu, 840 F.2d 678, 680 n. 2 (9th Cir.1988), which we review de novo. Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1453 n. 4 (9th Cir.1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 775, 98 L.Ed.2d 861 (1988).

The Gilberts, Lockarys and Macey argue that their claim suffers a ripeness defect because of First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), a decision entered after appellants filed suit. First English explicitly disapproved of the California state law rule expressed in Agins v. City of Tiburon, 24 Cal.3d 266, 275-77, 598 P.2d 25, 29-31, 157 Cal.Rptr. 372, 375-76 (1979) (in bank), aff'd on other grounds, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), which held that no state compensation is available for regulatory takings. The Gilberts, Lockarys and Macey argue that this disapproval may somehow have required them to attempt to pursue a remedy for a regulatory taking in California state court, lest they run afoul of Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), which held that a fifth amendment takings claim is not ripe until the landowner has sought "compensation through the procedures the state has provided." Id. at 194-95, 105 S.Ct. at 3121. We reject their contention. The appropriate point for determination of the adequacy of state compensation procedures occurs at the time the alleged taking occurs, Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1402 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). Thus First English does not in any way affect the ripeness of their suit. Because no other ripeness problem exists, we reach the merits of the Gilberts', Lockarys' and Macey's takings claim. 1

The Gilberts, Lockarys and Macey contend that BCPUD's refusal to grant them water hookups constitutes a regulatory taking of their property in violation of the fifth amendment. This claim encompasses two different kinds of takings challenges: an "as applied" challenge and a "facial challenge." See, e.g., Lake Nacimiento Ranch Co. v. San Luis Obispo County, 841 F.2d 872, 876-77 (9th Cir.1987), cert. denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988). Appellants' "as applied" challenge involves a claim that BCPUD's refusal to grant water hookups to them so damages the value of their land that it constitutes an unconstitutional taking of the appellants' property interest in their land. See, e.g., id. Their "facial challenge" attacks the mere enactment of the restriction as a taking of their property interest in the water they seek to obtain. The district court characterized appellants' claim solely as a facial challenge and found no triable issue of fact. We agree with that conclusion. However, because triable issues of fact surround appellants' as applied takings claim, we reverse.

BCPUD's failure to grant water hookups does not constitute a taking of the Gilberts', Lockarys' and Macey's interest in their land if it: 1) substantially advances a legitimate state interest; and 2) does not deny them economically viable use of his land. Nollan v. California Coastal Comm'n, 483 U.S. 825, 834, 107 S.Ct. 3141, 3146-47, 97 L.Ed.2d 677 (1987). Here, there is a tenable claim that BCPUD's failure to grant water hookups to the Gilberts, Lockarys and Macey may deny them all economically viable use of their land.

A regulation which destroys a major portion of the land's value denies a property owner of all economically viable use of his land. See Moore v. City of Costa Mesa, 886 F.2d 260, 263 (9th Cir.1989). Whether a regulation denies landowners all economically viable use of their land requires consideration of the existence of other permissible uses of that land, Agins v. City of Tiburon, 447 U.S. 255, 262, 100 S.Ct. 2138, 2142, 65 L.Ed.2d 106 (1980), and the economic impact of the regulation and the extent to which it interferes with the landowners' reasonable investment backed expectations. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 191, 105 S.Ct. 3108, 3118-19, 87 L.Ed.2d 126 (1985). Also included within this inquiry is the consideration whether the regulation caused the loss of economic viability. If the loss is caused by something other than the government regulation, it...

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