Armendariz v. Penman, s. 93-55393
| Citation | 75 F.3d 1311 |
| Decision Date | 07 February 1996 |
| Docket Number | 93-55587 and 93-55748,Nos. 93-55393,s. 93-55393 |
| Parties | 96 Cal. Daily Op. Serv. 839, 96 Daily Journal D.A.R. 1369 Tomas ARMENDARIZ; Rosa C. Armendariz; Harry Julian Brown, Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees, v. James F. PENMAN; W.R. Holcomb; David M. Stachowski; Cecil Dillard; Kenneth J. Henderson, et al., Defendants-Appellants. Tomas ARMENDARIZ; Rosa C. Armendariz; Harry Julian Brown, Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees, v. James F. PENMAN; W.R. Holcomb; David M. Stachowski; Cecil Dillard; Kenneth J. Henderson, et al., Defendants, and Al Boughey; Larry Reed, Defendants-Appellants. Tomas ARMENDARIZ; Rosa C. Armendariz, Plaintiffs-Appellees, v. James F. PENMAN, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Christopher D. Lockwood, MacLachlan, Burford & Arias, San Bernardino, California, and Cynthia Ludvigsen, San Bernardino, California, for defendants-appellants.
Darlene Fischer Phillips, Hill, Farrer & Burrill, Los Angeles, California, for plaintiffs-appellees.
Appeals from the United States District Court for the Central District of California; Consuelo B. Marshall, District Judge, Presiding.
Before: WALLACE, Chief Judge, BROWNING, SCHROEDER, FLETCHER, POOLE, BEEZER, WIGGINS, KOZINSKI, JOHN T. NOONAN, Jr., T.G. NELSON, and MICHAEL DALY HAWKINS, Circuit Judges.
Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Chief Judge WALLACE; Partial Concurrence and Partial Dissent by Judge SCHROEDER; Partial Concurrence by Judge BEEZER.
This is an interlocutory appeal from the denial of summary judgment to city employees who claim that they are entitled to qualified immunity. The recitation of events below necessarily follows the allegations of the parties--nothing has been put to the crucible of trial.
Several years ago the City of San Bernardino embarked on a program of vigorously enforcing its housing code. The City boarded up low-income housing units, evicting tenants among whom were suspected gang members, drug dealers and other criminals, and revoking the property owners' business licenses and certificates of occupancy. We consider whether the city officials responsible for the administration of this program can be sued for depriving the property owners of substantive due process or equal protection.
The plaintiffs are owners and former owners of low-income housing units in the Arden-Guthrie section of the City of San Bernardino ("the City"), an area of high crime and predominantly low-income housing. In 1991, the City conducted a series of housing code enforcement sweeps in Arden-Guthrie. The sweeps were massive undertakings, with city officials, police, firefighters, and housing code inspectors descending on the area to inspect dozens of pre-selected buildings. All told, the City summarily closed 95 buildings over a six-month period, evicting the tenants and driving them to other parts of the city.
The City didn't notify affected property owners in advance that the sweeps would occur, didn't inform owners at the time of the closures why their buildings were being shut down, and didn't identify the specific code violations they found until well after the sweeps had been completed and the buildings closed. In some cases, as many as six weeks passed before the owners were informed why their properties had been closed, leaving them without guidance as to what they needed to do to reopen units or how they could challenge the City's action. When the closure notices did arrive, they either were worded so vaguely as to be unhelpful or cited seemingly minor, easily repairable violations. For example, some notices cited "general dilapidation" as a reason for the closures. Others cited more specific, but no more compelling, reasons, such as holes in firewalls, which could be patched in a matter of hours, or air conditioning units in the windows which could be removed in minutes. 1 In conjunction with these evictions, the City revoked the plaintiffs' business licenses and certificates of occupancy, also without notice or an opportunity to be heard.
Coupled with other actions taken by the City, the closures placed property owners in a precarious position. If they wanted to reopen their properties, the plaintiffs had to obtain costly permits for repairs and run a gauntlet of city inspections conducted at the property owners' expense. Because the City had evicted the plaintiffs' tenants, the plaintiffs were earning no income from the properties to fund repairs, and many had so leveraged their properties that they could not qualify for city or federal rehabilitation loans, which have minimum requirements for an equity interest. Several plaintiffs allege that the City, as part of an effort to force them out of business or into line with the City's plan to rid the area of undesirable tenants, deliberately withheld loan money in order to hinder the plaintiffs' efforts to make repairs. 2 The City also shut off power to the closed buildings. With the area left largely deserted by the relocation of tenants, vagrancy and vandalism became a serious problem. Departing tenants trashed their apartments in retaliation for being moved, and owners attempting to bring their buildings up to code often found their repairs wrecked by vandals before city inspectors arrived.
For all of these reasons, the plaintiffs feared that they would be unable to obtain new certificates of occupancy in a timely fashion. The timing of these certificates was particularly important. The owners' four-plexes were tolerated in an area zoned for two units per lot only because they were preexisting non-conforming uses. Under the City's interpretation of its Municipal Code and General Plan, the properties would lose that status if they remained vacant for more than 180 days.
In short, the sweeps took a substantial toll on the plaintiffs. To justify its summary closure of the plaintiffs' buildings, the City relied on its powers under the San Bernardino Municipal Code, which vests "the building official or his representative [with] summary power to secure from entry any structure which in his discretion he determines to be immediately dangerous or hazardous, or in any other manner injurious to public health or safety," City of San Bernardino, Municipal Code (SBMC), ch. 15.28.140, and permits the City, once it determines that a building is sufficiently dangerous, to "require the building ... to be vacated forthwith and not reoccupied until the required repairs and improvements are completed," SBMC, ch. 15.28.030.
Although the ostensible purpose of the City's code enforcement activity was the reduction of urban blight, the plaintiffs allege that city officials conducted these emergency sweeps for one or both of two pretextual motives. One alleged purpose of the sweeps was to force tenants with criminal records or suspected gang affiliations or both to relocate outside the City. The sweeps were billed as a "carrot and stick" approach to cleaning up Arden-Guthrie: If owners took on the mantle of law enforcement and evicted unwanted tenants, the City would provide rehabilitation loans and other assistance (the carrot); if owners did not cooperate, their buildings would be closed in the sweeps and their tenants would be evicted by the City (the stick). That model citizens might also be uprooted as a result of the program, or that some property owners might not be able to weather the storm of city inspections without the benefit of income from their properties, were unfortunate but necessary consequences of the plan. The plaintiffs also allege that city officials conducted the sweeps to enable a commercial developer to acquire contiguous property in Arden-Guthrie on the cheap, bulldoze the low-income housing units, and replace them with a planned shopping center. According to the plaintiffs, the City effectuated these purposes by "faking" the existence of serious housing code violations purportedly discovered on the plaintiffs' properties during the sweeps in order to invoke the City building official's emergency powers to evict the plaintiffs' tenants and revoke the plaintiffs' business licenses and certificates of occupancy.
The owners filed this lawsuit under 42 U.S.C. § 1983 and the Fair Housing Act, 42 U.S.C. § 3601 et seq., stating the following four claims:
1) that closure of their property without pre-deprivation notice, a hearing, or exigent circumstances, and without adequate post-deprivation relief, violated their right to procedural due process under the Fourteenth Amendment;
2) that the city's invocation of its emergency powers to close down their properties when no real emergency existed, along with other actions by the city, including specifically the decision to deny rehabilitation loans to several of the owners whose properties were closed, was arbitrary and capricious, and violated their Fourteenth Amendment right to substantive due process;
3) that the city's decision to close down plaintiffs' properties violated the equal protection clause of the Fourteenth Amendment;
4) that the city's decision to focus the sweeps on Arden-Guthrie had a disparate impact on the minority community of San Bernardino in violation of the Fair Housing Act.
The complaint originally named dozens of city officials, but most proved to be immune from suit for one reason or another and were dropped from the case. Only six defendants remain: William Holcomb, the City's Mayor; James Penman, the City Attorney; Al Boughey and Larry Reed, two successive Directors of Planning and Building Services; Kenneth Henderson, Director of the city's Redevelopment Agency; and Nester Nazario, a loan officer at the Redevelopment Agency. 3
These defendants filed motions for summary judgment, claiming ...
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