Harris v. County of Riverside

• Decision Date: 30 May 1990
• Docket Number: No. 88-6498,88-6498
• Parties: Steven J. HARRIS, Plaintiff-Appellant, v. COUNTY OF RIVERSIDE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 497

904 F.2d 497

Steven J. HARRIS, Plaintiff-Appellant, v. COUNTY OF RIVERSIDE, Defendant-Appellee.

No. 88-6498.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1989.

Decided May 30, 1990.

John B. Murdock, Santa Monica, Cal., for plaintiff-appellant.

Timothy T. Coates, Greines, Martin, Stein & Richland, Beverly Hills, Cal., for defendant-appellee.

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

Before HUG, CANBY and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

Steven J. Harris appeals the district court's grant of summary judgment in favor of the County of Riverside, California (the County). Harris owns a small piece of land in the County which he has used for various business purposes including renting all terrain vehicles (ATVs). He claims that by rezoning his property as residential and imposing bureaucratic roadblocks to his ability to comply with County land use procedures, the County has taken his property in violation of his fifth amendment rights and violated his fourteenth amendment rights to procedural and substantive due process, including depriving him of his liberty to pursue a livelihood. In a thorough opinion, the district court found that these claims were not ripe, and that Harris' constitutional rights were not violated. We need not decide whether the claims directly arising from Harris' allegations of a taking are ripe for judicial review, because under the circumstances of this case, we find that Harris was denied procedural due process and reverse on that ground.

FACTS AND PROCEDURAL HISTORY

In 1984, Harris purchased approximately three quarters of an acre of desert land in the West Coachella Valley near Palm Springs for $15,000. He intended to use the property for an ATV rental facility. In December 1984 and January 1985, shortly after he acquired the property and began his business, Harris was visited several times by County sheriff's officers in connection with his business operation. In late January 1985, a County Building and Safety inspector informed Harris that his use of the property was improper, and he needed to file a plot plan to receive permission to operate his business.

Harris made several trips to the County's Department of Building and Safety and to its Planning Department to see what he needed to do to comply with County land use requirements. On each trip, County employees told him of an application or fee of which he had not been told on previous visits. Eventually, this amounted to fees of between $4,200 and $6,000 for a plot plan, a conditional use permit, and preservation of the habitat of the fringe-toed lizard. Baffled by the mounting fees he was being asked to pay, Harris researched the County land use codes. He discovered a grandfather clause for nonconforming land uses which he believed applied to him. Harris also read the applicable zoning regulation and concluded that his use of the property was permissible without a conditional use permit. Harris consulted an employee in the Building and Safety Department who agreed with his interpretations.

Over the next few months, Harris received two notices of land use violation from the Building and Safety Department. Harris wrote to the Department and visited both the Planning and the Building and Safety Departments, in an attempt to comply with the County's requirements and to request a waiver of any required fees. He was told "that the County officials took a dim view of [his] development plans, that even were [he] to post the fees that [he] would, without a doubt, have [his] applications denied." His request for a waiver of the fees was refused.

Harris was also frequently visited by County sheriff's officers during this time. The officers never cited him for any violations, but they gave him numerous instructions concerning the operation of his ATV rental business, all of which he followed. On January 28, 1986, Harris was arrested on criminal misdemeanor charges of using more than 200 square feet of outside storage space and renting ATVs without an enclosure. Once again he returned to the Planning Department in an attempt to comply with County requirements, only to discover that his property had been redesignated from CPS (desert land accommodating commercial uses) to residential. He was told that he would have to pay another $2,400 to $3,000 to file an application to change the zoning back to CPS.

The redesignation of Harris' property occurred during consideration of the West Coachella Valley Community Plan which amended the County's state-required General Plan ("General Plan Amendment"). The General Plan Amendment encompassed over one hundred square miles (approximately six hundred thousand acres) and was enacted in December 1985, after a public hearing and approval by the County Board of Supervisors. The County, in compliance with state law, published notice of the public hearing on November 1, 1985. In response to that notice, the Board of Supervisors received a letter written by a local land developer and a Palm Springs city councilman, dated November 5, 1985. The authors requested that the General Plan Amendment be changed to redesignate Harris' property and the immediate surrounding land as residential, in part to "eliminate a ... motorcycle park which in turn creates a fire, health and safety hazard for the neighbors." The General Plan Amendment enacted in December incorporated this change. Harris received no notice of the change prior to its enactment as part of the General Plan Amendment.

Between March and July 1986, after he had learned that his property had been rezoned, Harris and his wife visited the County's Deputy Planning Director, Planning Director, and Supervising Planners in charge of the community plans team. Harris received a new fee schedule and directions on what he needed to do to comply with County requirements, but again he was unsuccessful in getting any assistance from the Planning Department in filling out the necessary forms. He also investigated the possibility of a "less intense" use of the property to no avail.

Harris then visited the Building and Safety Department and discovered the letter from the local developer and the city councilman requesting that the area of land including Harris' property be redesignated as residential. He tried to meet with Kay Ceniceros, a County supervisor, to discuss the zoning change but was unable to do so. Convinced that further efforts to comply with County requirements would be futile, Harris abandoned his efforts and filed this lawsuit.

Harris filed suit in pro per against the County on September 16, 1986. He eventually obtained counsel and filed a third amended complaint alleging a taking of his property in violation of his constitutional and civil rights under the fifth and fourteenth amendments and 42 U.S.C. Sec. 1983 (1982), as well as deprivation of his constitutional rights to due process and to engage in a common occupation. On May 18, 1988, the County filed a motion for summary judgment. Before ruling on the motion, the district court wisely decided that there were genuine issues of fact to be resolved in determining whether any further efforts by Harris to file appropriate applications with the Planning Department would have been futile. Therefore, the court conducted

an evidentiary hearing in front of a jury on this issue. The jury resolved the principal factual issues concerning futility against Harris. On September 1, the court filed its memorandum decision granting the County's motion for summary judgment. Harris filed this timely appeal.

DISCUSSION

We review the district court's grant of summary judgment de novo to determine whether there are any genuine issues of material fact and whether the court correctly applied the relevant substantive law. Lake Nacimiento Ranch Co. v. County of San Luis Obispo, 841 F.2d 872, 875 (9th Cir.1988), modifying 830 F.2d 977 (1987), cert. denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988). The majority of Harris' claims arise from his allegation that the County took his property without just compensation. The district court concluded that all of these claims were precluded on ripeness grounds.

Harris argues that his claims are ripe. The linchpin of his ripeness argument, and by implication his taking and related claims, is the rezoning of his property from CPS to residential. Harris alleges that the County knew the use Harris was making of his property and rezoned his land in response to that use. Thus, according to Harris, the County reached a final determination as to the uses it would allow on the property, and his taking claims are ripe for judicial review. See Hoehne v. County of San Benito, 870 F.2d 529, 533 (9th Cir.1989) (taking claim was ripe because County's rezoning of property in response to plaintiffs' proposed use reflected County's final decision on how land could be used).

Procedural Due Process

Initially we must address Harris' challenge to the validity of the County's decision rezoning his property. He claims that he was denied his procedural due process right to individual notice of the public hearing on the adoption of the General Plan Amendment. The County maintains that this claim arises out of Harris' taking claim and thus is also precluded on ripeness grounds. Procedural due process claims arising from an alleged taking may be subject to the same ripeness requirements as the taking claim itself depending on the circumstances of the case. Herrington v. County of Sonoma, 857 F.2d 567, 569 n. 1 (9th Cir.1988) ("[W]e see no reason, under the circumstances of this case, to apply a different standard to Herrington's procedural due process claim, which, like its equal protection and substantive due process claims, relates to the process by which the County reached its conclusion.") (emphasis in original), modifying 834 F.2d 1488, 1494-98 (1987), cert. denied, --- U.S. ----, ...