Kawaoka v. City of Arroyo Grande

Citation17 F.3d 1227
Decision Date02 March 1994
Docket NumberNo. 92-55714,92-55714
PartiesKingo KAWAOKA; Tatsumi Kawaoka, Plaintiffs-Appellants, v. The CITY OF ARROYO GRANDE; The City Council of Arroyo Grande; Mark M. Millis; B'Ann Smith; Gene Moots; A.K. Dougall; Doris Olsen, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

John B. Murdock, Santa Monica, California, for the plaintiffs-appellants.

Katherine E. Stone, Myers, Widders & Gibson, Ventura, California, for the defendants-appellees.

Craig Labadie, Robert N. Katz, McDonough, Holland & Allen, Oakland, California, for the amicus.

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

Before: FLETCHER, PREGERSON and HALL, Circuit Judges.

FLETCHER, Circuit Judge:

Kingo and Tatsumi Kawaoka appeal the district court's grant of summary judgment for the City of Arroyo Grande (the "City") on the Kawaokas' claims that the City's general plan and temporary water moratorium deny the Kawaokas substantive due process and equal protection. We affirm.

BACKGROUND

Since 1954, the Kawaokas have owned thirty-five acres of land within the City of Arroyo Grande. Until recently, the Kawaokas have used their property primarily for strawberry farming. Adjacent to and in close proximity to the Kawaokas' property are twenty additional acres of agricultural land owned by three separate parties, part of which has also been used for strawberry farming. The land surrounding these fifty-five acres is currently used for residential and commercial purposes. Recently, strawberry farming on the Kawaokas' property has become economically non-viable, in part because of the incompatibility of pesticide use with residential uses in this primarily residential area.

In 1988, the City began to update its general plan, a comprehensive land-use plan for the physical development of the City required by state law. Cal.Gov't Code Secs. 65300-65361 (West Supp.1993). After numerous workshops, the City prepared a draft revised general plan. A primary goal of the general plan was to preserve the traditional rural atmosphere of the area. In the draft LUE 1.5 also requires that a specific plan be prepared prior to the land's conversion to residential use. 1 A specific plan is a tool that implements a general plan in one of three ways: (1) by acting as a policy statement that refines the general plan's policies with respect to a specific area; (2) by directly regulating land use; or (3) by combining detailed policies and regulations into a focused scheme for development. See Governor's Office of Planning & Research, Specific Plans in the Golden State, at 7 (1989). Specific plans must include information regarding the distribution, location, and uses of land within the plan area; the distribution of transportation, sewage, water, drainage, solid waste disposal and energy facilities; standards for developing the land; and a program for implementing development of the land. Cal.Gov't Code Sec. 65451 (West Supp.1994). The specific plan must be consistent with the general plan. Cal.Gov't Code Sec. 65454 (West Supp.1994).

revised general plan, with respect to the fifty-five acres belonging to the Kawaokas and the other three landowners in question, the City Council noted that while it wanted to preserve the land for agricultural use, it was concerned that such use might not be economically viable in the future. The City therefore designated the fifty-five acres for agricultural use, but also added Land Use Element Policy ("LUE") 1.5, which states that upon a showing that an agricultural use is no longer viable, the land could be converted to commercial and residential uses.

In April and May, 1990, the City Council held hearings to review the draft revised general plan. The Kawaokas retained a consultant, Burtram Johnson, to appear at several meetings on their behalf. Johnson argued that the Kawaokas' property should be designated for residential use rather than agricultural use and objected to the specific plan requirement.

In response to the Kawaokas' requests, the City Council changed the land use designation of the fifty-five acres. The Kawaokas' property was divided into two parcels: the northern parcel was designated single family ("SF") use, subject to 4.5 maximum units per acre; the southern portion was designated rural residential ("RR") use, with 1.0 maximum units per acre. According to Lloyd Zola, a planning consultant hired by the City to update several elements of its general plan, these densities were recommended in part because the City believed it faced long-term water availability problems. Overall density reductions throughout the City were recommended as one way to address the anticipated water shortage. Zola also recommended this combination of densities as a compromise between the density of surrounding lands and the density that the Planning Commission had proposed to apply to existing non-prime agricultural lands. The specific plan requirement was maintained. 2

On May 22, 1990, the City Council unanimously adopted the general plan update. On the same day, it adopted a forty-five day water moratorium imposing restrictions on some development applications in the City.

In enacting the moratorium, the City Council relied on reports indicating that the City's water supply was 3,492 acre feet per year as of May 1990. If the City granted all pending development applications, an annual supply of approximately 4,415-4,611 acre feet would be required. If conservation measures were implemented, the City would still have a shortfall of 637 to 833 acre feet per year. On June 26, 1990, the water moratorium was extended by ten months and fifteen days to run for a total of one year.

In 1988 or 1989, prior to the amendment to the general plan, the Kawaokas decided to sell their property. They received two offers for $6 million each, which were rescinded due either to water availability or density problems. At the time the general plan was adopted, the sale documents for the Kawaokas' property were in escrow to a third party, Lee Webb, who had also offered $6 million to purchase the property. Apparently, this offer was contingent on the property being designated for a minimum density of 5.0 residential units per acre. After the adoption of the general plan, Webb terminated the pending escrow and offered to purchase the property for $3,735,000 due to the lower density designations adopted by the plan. This second offer was retracted when Webb learned that a specific plan would be required prior to development. The second Webb offer may not have been mentioned to anyone in the Kawaoka family because they instructed their broker to reject any offer of less than $6 million.

At the time that the general plan amendment was adopted, the City did not have any regulations describing how a property owner could apply for a specific plan. The California Code does not require cities to adopt such regulations, but instead appears to envision that the local planning agency will prepare specific plans. See Cal.Gov't Code Secs. 65450-65457 (West Supp.1994). Section 65456(b) of the California Government Code anticipates that individuals may request that a city adopt a specific plan and authorizes the city to require them to pay a deposit for the estimated cost of preparing the plan. Moreover, state law describes the information that a specific plan must contain and the proper procedures by which the city should adopt the plan. Cal.Gov't Code Secs. 65450-65457 (West Supp.1994).

In July 1990, the Kawaokas were advised that the City would adopt ordinances specifying how parties could apply for specific plans. They were informed that they could not apply for a specific plan until the ordinances containing the guidelines and applicable procedures were in place. On May 14, 1991, nine months after the Kawaokas filed this suit, the City adopted the ordinances containing the relevant regulations for applying for and adopting specific plans.

The Kawaokas filed suit in district court in August 1990. In December 1991, the City filed a motion for summary judgment and on April 30, 1992 the district court granted the City's motion. See Kawaoka v. City of Arroyo Grande, 796 F.Supp. 1320 (C.D.Cal.1992). The Kawaokas timely appealed.

The district court had jurisdiction over the Kawaokas' facial challenges under 28 U.S.C. Secs. 1332(a) & 1343(a)(3) and 42 U.S.C. Sec. 1983. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

DISCUSSION
I. "As Applied" Substantive Due Process Challenge

The district court held that it did not have subject matter jurisdiction over the Kawaokas' "as applied" challenge to the City's water moratorium and general plan because these challenges were not ripe for review. The Kawaokas' "as applied" claim alleges that because the City had no specific procedures or fee schedules for applying for specific plans when the general plan was adopted, the specific plan requirement as applied to the Kawaokas' property is an arbitrary means by which the City is blocking development of the Kawaokas' land. 3 The Ripeness requirements are relevant only to "as applied" challenges, and not to facial challenges. Southern Pac. Transp. Co. v. Los Angeles, 922 F.2d 498, 507 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991). The ripeness doctrine serves the purpose of avoiding premature adjudication of administrative actions. A constitutional challenge to land use regulations is ripe when a property owner or developer has received the planning commission's " 'final, definitive position regarding how it will apply the regulations at issue to the particular land in question.' " MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351, 106 S.Ct. 2561, 2567, 91 L.Ed.2d 285 (1986) (quoting Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 191, 105 S.Ct. 3108, 3118, 87 L.Ed.2d 126 (1985)). We have...

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