Kawaoka v. City of Arroyo Grande, CV 90-4465 Kn (Ex).

• Decision Date: 30 April 1992
• Docket Number: No. CV 90-4465 Kn (Ex).,CV 90-4465 Kn (Ex).
• Citation: 796 F. Supp. 1320
• Court: U.S. District Court — Central District of California
• Parties: Kingo KAWAOKA and Tatsumi Kawaoka, Plaintiffs, 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.

796 F. Supp. 1320

Kingo KAWAOKA and Tatsumi Kawaoka, Plaintiffs, 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.

No. CV 90-4465 Kn (Ex).

United States District Court, C.D. California.

April 30, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John B. Murdock, Santa Monica, Cal., for plaintiffs.

Judy Skousen, City Atty., City of Arroyo Grande, Katherine E. Stone, Margaret Moore Sohagi, Philip A. Seymour, Freilich, Stone, Leitner & Carlisle, Los Angeles, Cal., for defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

KENYON, District Judge.

The Court, having received and considered both defendants' and plaintiffs' motions for summary judgment, and the papers filed in support thereof and opposition thereto, GRANTS defendants' motion for summary judgment and DENIES plaintiffs' motion for summary judgment.

In making these rulings, the Court makes the following findings of fact. For approximately 38 years, plaintiffs have owned and primarily farmed 35 acres of strawberry fields located along the southern border of Arroyo Grande. Adjacent to plaintiffs' parcel are 20 additional acres under three separate ownerships, some of which have also been used for strawberry farming. From October of 1990 to July of 1991, plaintiffs leased the farmable portion of their land (28 acres) to a company that continued to grow strawberries on the property. Plaintiffs' land is currently leased to a third-party who is attempting to farm cabbage, although the land remains cultivated for strawberries.

In 1988, the City began to update its general plan, a comprehensive, land-use planning device required of every city by state law. Cal.Govt.Code §§ 65300-65359. After preparing numerous workshops, interviews, public opinion surveys, interviews, and public hearings, and informing the public of proposed general plan changes, the City arrived at a revised general plan, the primary goal of which is to preserve the town's traditional rural and agricultural atmosphere.¹

In accordance with the general plan objectives, the City designated large portions of land for continued agricultural use, including the subject 55 acres. However, in response to concerns regarding the long-term viability of agriculture on the parcel, the City added to the draft general plan Land Use Element Policy 1.5, which states:

"At such time as they are no longer economically viable, permit the conversion of the existing strawberry fields located south of Grand Avenue near the western city limits to urban use subject to preparation of a specific plan as set forth in Government Code Sections 65450-65457 ...

a. If converted, utilize the northerly portion of the property adjacent to Grand Avenue for commercially-related uses.

b. If converted, utilize the southerly portion of the property for single family residential (less than 5.0 dwelling units per gross acre) and rural residential (less than 2.0 dwelling units per gross acre) uses."

Beginning April 9, 1990, the City Council initiated hearings to review the draft general plan. Plaintiffs, represented by their consultant Burtram Johnson ("Johnson"), appeared at several of these hearings to present evidence that agriculture is not economically viable on the subject property and to request the conversion of the property from an agricultural to a residential designation. Plaintiffs also lodged an objection to the Policy 1.5 specific plan requirement.

In response to plaintiffs' requests, the City Council changed the land use designation of all 55 acres. The 20 acres surrounding the plaintiffs' plot were converted from agricultural to residential and/or commercial. Plaintiffs' property was divided into two residential classifications; the northern portion was designated "SF" (single family, 4.5 units per acre maximum) while the southern portion was designated "RR" (rural residential, 1.0 unit per acre maximum). In addition, the City Council maintained the specific plan requirement for all 55 acres.

On May 22, 1990, the City both adopted the general plan update by a five to zero vote and enacted a 45 day water moratorium imposing restrictions on some development applications within the City.² Then, on June 26, 1990, the City Council extended the water moratorium by ten months and 15 days, to expire by its own terms in May of 1991.

After the adoption of the general plan, Lee Webb ("Webb") offered to buy plaintiffs' land for $3,735,000, although he quickly retracted the offer upon learning that any development of the land would require the submission of a specific plan. The record indicates, however, not only that plaintiffs did or would have rejected the $3,735,000 offer, but also that they subsequently declined to advertise the property or list it on any real estate exchange, in spite of their intent to sell the property for development.

In addition, at no time during the relevant period did plaintiffs either prepare (or ask the City to prepare) a specific plan for their property or file a formal zone change or development application. Although plaintiffs claim the lack of available application procedures accounts for their inaction, on May 14, 1991, approximately one year after the adoption of the general plan, the City passed the Arroyo Grande Development Code, including procedures for adopting and amending specific plans.

I. Summary Judgment Legal Background

According to FRCP 56(c), a court shall grant summary judgment if there is enough information on the record to show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party has the initial burden of proving, based on the total record, an absence of genuine factual issues for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmovant must present concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). In addition, expert affidavits must be countered by expert affidavits in order to create a triable issue of fact. Jones v. Wike, 654 F.2d 1129, 1130 (5th Cir.1981). Finally, "neither a desire to cross-examine an affiant nor an unspecified hope of undermining his/her credibility suffices to avert summary judgment." National Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95 (9th Cir.1983).

II. Whether the Instant Action is Ripe for Review

In the Ninth Circuit, a challenge to a land-use regulation is unripe until the property-owner submits at least one meaningful application for development. Southern Pacific v. City of Los Angeles, 922 F.2d 498 (9th Cir.1990); Herrington v. County of Sonoma, 857 F.2d 567 (9th Cir. 1988) Referring to the ripeness finality requirement, the court noted, "a final decision requires at least: `(1) a rejected development plan, and (2) a denial of a variance.'" In addition, "a landowner may need to resubmit modified development proposals that satisfy the local government's objections to the development as initially proposed." Del Monte, 920 F.2d 1496, 1501. Finally, although the Southern Pacific court does elaborate on a "futility exception" exception to the general rule, "the futility exception does not alter an owner's obligation to file one meaningful development proposal." Southern Pacific, 922 F.2d 498, 504; Herrington v. County of Sonoma, 857 F.2d 567 (9th Cir. 1988), accord Del Monte Dunes v. City of Monterey, 920 F.2d 1496 (9th Cir.1990).

Because plaintiffs here never submitted any formal development application, failing to meet the Ninth Circuit threshold requirement for finality, the instant action does not appear ripe for this Court's review. Although plaintiffs' repeatedly argue that government action violates substantive due process at the moment the harm occurs, rendering their action ripe upon the adoption of the updated general plan, they fail to realize that for their "as applied" challenge, a showing of injury requires, at the very least, one application for development.

Plaintiffs also argue that both the City's one year water moratorium and its one year lag in passing a formal Development Code excessively delayed the development of plaintiffs' property. Their argument fails for two reasons. First, neither the water moratorium, which did not prevent landowners' from filing specific plan applications, nor the City's delay in passing its Development Code, which arguably only supplemented already sufficient specific plan procedures, excused plaintiffs' failure to make a formal development application. Second, to the extent that specific plan application procedures were unavailable in 1990, the City's one year delay in passing the formal Development Code was not unreasonable. Agins, 447 U.S. 255, 262, n. 9, 100 S.Ct. 2138, 2143 n. 9 ("mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are incidents of ownership."). In Zibler v. Town of Moraga, 692 F.Supp. 1195, 1207 (N.D.Cal.1988), the Ninth Circuit found that "a one-and-a-half-year development moratorium in order to develop a comprehensive scheme for regulating open space seems neither unreasonable, nor, standing alone, sufficiently burdensome to require compensation." Moreover, under California Government Code § 65858, a legislative body may adopt for as long as two years an interim urgency measure prohibiting uses which may be in conflict with a general plan.

Therefore, because plaintiffs failed to utilize their clear opportunity to file an application for development, the instant action appears unripe. Even if ripe, however, plaintiffs' challenge still fails on the merits of its substantive due process and equal...