Del Monte Dunes at Monterey, Ltd. v. City of Monterey

• Decision Date: 12 December 1990
• Docket Number: No. 88-1593,88-1593
• Citation: 920 F.2d 1496
• Parties: DEL MONTE DUNES AT MONTEREY, LTD.; Monterey-Del Monte Dunes Corporation, Plaintiffs-Appellants, v. CITY OF MONTEREY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1496

920 F.2d 1496

DEL MONTE DUNES AT MONTEREY, LTD.; Monterey-Del Monte Dunes Corporation, Plaintiffs-Appellants, v. CITY OF MONTEREY, Defendant-Appellee.

No. 88-1593.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 16, 1988.

Decided Dec. 12, 1990.

Barbara R. Banke, Law Offices of Jess S. Jackson, San Francisco, Cal., for plaintiffs-appellants.

George A. Yuhas, Orrick, Herrington & Sutcliffe, San Francisco, Cal., for defendant-appellee.

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

Before HUG, TANG and BOOCHEVER, Circuit Judges.

HUG, Circuit Judge:

Appellants seek damages and other relief against the City of Monterey for its denial of appellants' application to develop ocean-front property. Appellants allege violations of the Fifth Amendment's takings clause as incorporated in the Fourteenth Amendment, of the equal protection and due process clauses of the Fourteenth Amendment, and of state law. The district court dismissed the takings claim as unripe and the remainder of the claims as both unripe and inadequately stated. ¹ The appellants contend that the property owners worked with the city planning staff, the planning commission, and the city council in preparing and refining the plans for a development of the property through five separate applications, meeting the City's objections and reducing the density of the project. The city council then approved a 190-unit development, provided that 15 conditions were met. Appellants contend that they met all of the conditions that were legally possible to fulfill, but the City reneged on its earlier approval of the project, without valid justification, when it denied approval of the tentative map.

FACTUAL BACKGROUND

The property at issue consists of 37.6 ocean-front acres ("Del Monte Dunes" or "Dunes") located in the City of Monterey, California ("City"). Adjacent to the Dunes are a multi-family residential development, other private property, a railroad right-of-way, and a state beach park. The Dunes were once used as a petroleum tank farm. Seven tank pads and an industrial complex remain on the property. A sewer line housed in 15-foot man-made dunes covered with jute matting and surrounded by snow fencing also traverses the property. The Dunes' native flora includes buckwheat plant, the natural habitat of the endangered Smith's Blue Butterfly. The petroleum company that previously used the Dunes introduced ice plant to help control soil conditions. Ice plant presently covers 25 percent of the Dunes and is slowly increasing, diminishing the natural flora.

Ponderosa Homes owned Del Monte Dunes before the appellants. In 1981, Ponderosa applied for permission to develop the Dunes into 344 residential units. The City rejected this application, and Ponderosa submitted three more applications for 264, 224, and 190 residential units, respectively. The City rejected each of these applications although the type and density of the proposed residential units could potentially have conformed to the City's general land-use plan and zoning ordinances. Ponderosa Homes then submitted a modified plan for development of 190 residential units. While this last application was pending, appellants purchased the Dunes and pursued the application.

Under California law, appellants had to obtain the City's approval of a tentative map in order to develop the Dunes. See generally Cal.Gov't Code Secs. 66410 to 66499.58 (West 1983 & Supp.1990). A tentative map is a precise drawing detailing the design of a project and the conditions on and around the proposed development site that must be met before a final map can be approved and actual development begun. Typically, an advisory board, such as a local planning commission, reviews a development application initially and recommends acceptance or rejection of a tentative map. Id. Sec. 66452.1 (Supp.1990). The local legislative body may then follow or reverse the advisory board by approving, conditionally approving, or denying the tentative map. Id. Sec. 66452.2 (Supp.1990). The specific applications filed by Del Monte, including those of its predecessor in title, and the City's responses are detailed in the discussion below.

PROCEDURAL HISTORY

Appellants' complaint sets out eight separate "claims for relief," only five of which allege substantive violations of state or federal law. The five substantive claims are based on the Fifth Amendment's taking clause as incorporated in the Fourteenth Amendment, the equal protection and due process clauses of the Fourteenth Amendment, and common law principles of estoppel and unjust enrichment. The remaining three claims identify remedies that appellants seek based on the five substantive grounds for recovery. In the remedial claims, appellants request an injunction against the City, relief under 42 U.S.C. Sec. 1983, and declaratory relief under 28 U.S.C. Secs. 2201, 2202.

The district court dismissed appellants' taking claim as unripe and the unjust enrichment claim as an impermissible variant of the taking claim. The court also held that the equal protection and due process claims were unripe but alternately dismissed those claims on the merits for failure to state a claim for relief. The court then dismissed the estoppel claim on the merits for failure to state a claim. Finally, the court determined that the remedial claims had no basis independent of the five substantive claims and dismissed the entire complaint. On appeal, appellants have confined their legal and factual arguments to the dismissal of the taking, equal protection, and due process claims. As a result, we do not address the substantive claims for estoppel and unjust enrichment, and we limit our consideration of the three remedial claims to their impact on the constitutional claims.

ISSUES PRESENTED

1. Whether appellants' constitutional claims under the taking, equal protection, and due process clauses of the Fifth and Fourteenth Amendments are ripe for review.

2. Whether appellants have adequately stated claims for relief under the equal protection and due process clauses of the Fourteenth Amendment.

ANALYSIS

I. Ripeness of the Constitutional Claims

Whether appellants' constitutional claims are ripe for review presents a question of law affecting our subject matter jurisdiction. Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d 375, 377 (9th Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 134, 102 L.Ed.2d 106 (1988). We review the district court's resolution of this question de novo. Herrington v. County of Sonoma, 857 F.2d 567, 568 (9th Cir.1988), modifying 834 F.2d 1488 (1987), cert. denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 860 (1989).

A. Regulatory Taking Claim

Appellants' regulatory taking claim challenges the application of the City's land use regulations to the proposed development of the Dunes. An as applied challenge under the takings clause requires the landowner to establish that the government has (1) taken the landowner's property by imposing regulations that go too far (2) without tendering just compensation for the taking. Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1453 (9th Cir.), modified on other grounds, 830 F.2d 968 (9th Cir.1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 775, 98 L.Ed.2d 861 (1988). Both the taking element and the compensation element must be ripe before the claim is justiciable. See Austin v. City and County of Honolulu, 840 F.2d 678, 679-80 (9th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 136, 102 L.Ed.2d 109 (1988). The City contends both elements of appellants' taking claim are unripe.

1. Ripeness of the Taking Element

The taking component of an as applied claim is not ripe until the local government issues a final decision on the application of land use regulations to the affected property. Id. The cases of this circuit and the Supreme Court have identified two areas of concern that illuminate and define the finality requirement. Finality first requires the rejection of development formally sought by the landowner. At a minimum, the landowner must submit one formal development plan and seek a variance from any regulations barring the development proposed in the plan. Lake Nacimiento Ranch Co. v. County of San Luis Obispo, 841 F.2d 872, 876 (9th Cir.) (citing Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 187-88, 105 S.Ct. 3108, 3117, 87 L.Ed.2d 126 (1985)) (other citation omitted), modifying 830 F.2d 977 (9th Cir.1987), cert. denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988). Finality also requires the local government to determine authoritatively the type and intensity of development that land use regulations will allow on the subject property; such a determination helps a court to evaluate whether regulation of the subject property is excessive by identifying the extent of the regulation. See Herrington, 857 F.2d at 570; Lai v. City and County of Honolulu, 841 F.2d 301, 303 (9th Cir.), cert. denied, 488 U.S. 994, 109 S.Ct. 560, 102 L.Ed.2d 586 (1988). Thus, a landowner may need to resubmit modified development proposals that satisfy the local government's objections to the development as initially proposed. See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 351-53, 106 S.Ct. 2561, 2567-68, 91 L.Ed.2d 285 (1986).

This circuit recognizes a limited futility exception to the requirement that a landowner obtain a final decision regarding the application of land use regulations to the affected property. Kinzli, 818 F.2d at 1454. Under this exception, the resubmission of a development plan or the application for a variance from prohibitive regulations may be excused if those actions would be idle or futile. See Herrington, 857 F.2d at 570; Shelter Creek, 838 F.2d at 379. The landowner bears the burden of establishing, by more than mere allegations, the futility of pursuing any of the steps needed to obtain a final decision. Herrington, 857 F.2d at...