Pearl Inv. Co. v. City and County of San Francisco

• Decision Date: 29 October 1985
• Docket Number: No. 84-2345,84-2345
• Citation: 774 F.2d 1460
• Parties: PEARL INVESTMENT COMPANY, a California partnership, Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a Municipal corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1460

774 F.2d 1460

PEARL INVESTMENT COMPANY, a California partnership Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a Municipal corporation Defendant-Appellee.

No. 84-2345.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 14, 1985.

Decided Oct. 29, 1985.

Margaret A. Finn, Guadalupe Gamino, Finn & Gamino, San Francisco, Cal., Charles L. Siemon, Brian W. Blaesser, Siemon, Larsen & Purdy, Chicago, Ill., for plaintiff-appellant.

Paula Jesson and Melba Yee, Deputy City Attys., San Francisco, Cal., for defendant-appellee.

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

Before ANDERSON and CANBY, Circuit Judges, and REA, ^* District Judge.

CANBY, Circuit Judge:

Pearl Investment Company (Pearl) brought this civil rights action against the City and County of San Francisco (City) alleging that the City Planning Commission (Commission) violated the fifth and fourteenth amendments in acting upon a building permit application filed by Pearl. The sole issue on appeal is whether the district court abused its discretion in postponing the exercise of its jurisdiction pursuant to the Pullman abstention doctrine. We affirm.

BACKGROUND

Pearl owns two buildings in an area of San Francisco zoned for community business. The property has been used for eight commercial shops and twenty-four residential units. On December 31, 1981, Pearl filed an application with the City's Department of Public Works for a building permit to renovate the buildings for office use. Pearl was not apprised of the status of its application until July 2, 1982, when the Department of City Planning (Department) advised Pearl by letter that an environmental review would be required before the application was processed. After that review, the Department, on November 19, issued a Preliminary Negative Declaration that stated that the building renovation would not have a significant environmental impact. A tenants' association appealed that decision to the Commission. At the appeal hearing, the Commission affirmed the Department's issuance of the Negative Declaration and granted the Department's request for discretionary review.

The Commission employs discretionary review, under its powers in the City's Charter Section 7.500 ¹ and the City's Municipal Code, Part III, Section 26 ², to implement the policies of the City's Master Plan. Under discretionary review, Commission review extends beyond determining whether a proposed project complies with pertinent ordinances. The Commission may impose additional conditions tailored to the specific project and the objects of the Master Plan. In this case, the Commission conducted discretionary review because of its concern about the proposed project's dislocation of residential tenants.

After two continuances, the Commission, on March 10, 1983, began public hearings as part of its discretionary review of Pearl's application. On April 21, the Commission voted "an intent to approve the project, subject to final language being brought before the Commission." At the final public hearing on May 5, the Commission conditionally approved the project as limited to eleven units. The conditions on approval included that Pearl offer relocation assistance to all tenants who did not voluntarily vacate the units by May 5, 1983, and that Pearl cause the development, within San Francisco, of eleven replacement dwelling units of a type and size comparable to those being converted. The motion approving the project referred to the new Residence Element of the City's Master Plan, which had been adopted by the Planning Commission during the afternoon session of April 21, 1983, after the Commission tentatively had approved Pearl's project.

Pearl petitioned in state court for a writ of mandate to compel the City to approve automatically its building application under Cal.Gov't Code Secs. 65950 & 65956(b) (West 1983). The petition was denied. Pearl then filed this action in federal court under 42 U.S.C. Secs. 1983 & 1985 (1982). The crux of Pearl's complaint is that the Commission exercised its discretionary review power under constitutionally defective provisions and that the Commission imposed the relocation and replacement housing conditions arbitrarily. The complaint alleges federal procedural and substantive due process claims, an equal protection claim and an inverse condemnation claim. Pearl seeks damages and declaratory and injunctive relief.

The City moved to dismiss Pearl's complaint on the ground that the district court should abstain. After a hearing on the motion, the district court exercised its discretion to abstain under the abstention doctrine first articulated in Railroad Commission v. Pullman Co., 312 U.S. 496, 498, 61 S.Ct. 643, 644, 85 L.Ed. 971 (1941). The court, however, denied the City's request to dismiss the plaintiff's complaint and stayed the federal action pending state court adjudication of the state law issues. Pearl appealed the abstention order. We have jurisdiction to review a timely appeal of a Pullman abstention order. Rancho Palos Verdes Corp. v. City of Laguna Beach, 547 F.2d 1092, 1093 n. 1. (9th Cir.1976).

DISCUSSION

The Pullman abstention doctrine allows district courts, in exceptional cases, to postpone the exercise of jurisdiction. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). Federal courts should abstain in cases presenting a federal constitutional issue if constitutional adjudication could be avoided or if the constitutional question could be narrowed by a ruling on an uncertain question of state law. Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186 (1984); Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181-82, 14 L.Ed.2d 50 (1965); Railroad Commission v. Pullman Co., 312 U.S. at 498, 61 S.Ct. at 644. "[A]bstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication." Harman, 380 U.S. at 534, 85 S.Ct. at 1182. This doctrine does not contemplate, however, that federal courts defer to state adjudication when the state law issues are settled or when the outcome is reasonably uncertain. Id. Abstention is proper only in exceptional cases where principles of comity and federalism justify postponing the exercise of jurisdiction that Congress conferred upon federal courts.

We review abstention orders for an abuse of discretion. C-Y Development Co. v. City of Redlands, 703 F.2d 375, 377 (9th Cir.1983). The district court must exercise its discretion within the narrow and the specific limits of the abstention doctrine. McIntyre v. McIntyre, 771 F.2d 1316, 1318-19 (9th Cir.1985); Pue v. Sillas,

632 F.2d 74, 78 (9th Cir.1980). We have identified three concurrent criteria for Pullman abstention:

(1) The complaint "touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open."

(2) "Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy."

(3) The possibly determinative issue of state law is doubtful.

Canton v. Spokane School Dist. No. 81, 498 F.2d 840, 845 (9th Cir.1974) (quoting Railroad Commission v. Pullman Co., 312 U.S. at 498, 61 S.Ct. at 644). In applying these criteria, the district court should identify the state law issues that might be determinative or critical to the case's outcome and should explain why the resolution of those issues is uncertain.

1. Sensitive Areas of Social Policy

Pearl contends that the district court applied what it perceived as this court's per se abstention rule in state and local land-use cases. Pearl argues that this case was brought to redress a violation of civil rights and should not be viewed as a land-use case. Pearl further contends that the district court's decision, in effect, restricts the scope of 42 U.S.C. Sec. 1983 and deprives property owners of a meaningful remedy for the violation of civil rights under color of state law.

The Civil Rights Act protects property rights no less than individual liberties. Lynch v. Household Finance Corp., 405 U.S. 538, 542, 543, 92 S.Ct. 1113, 1117, 31 L.Ed.2d 424 (1972). Federal courts should be reluctant to abstain in civil rights cases regardless of the type of constitutional interest at stake; abstention can delay the redress of significant constitutional wrongs. See Canton v. Spokane School Dist., 498 F.2d at 845-46. The practical effect of abstention in these cases may be to impose an exhaustion requirement not appropriate to 42 U.S.C. Sec. 1983. Nevertheless, abstention may be proper in a civil rights case to avoid unnecessary interference with an important state program. See, e.g., Bank of America v. Summerland County Water Dist., 767 F.2d 544, 546-47 (9th Cir.1985); C-Y Development Co., 703 F.2d at 381 ("no per se civil rights exception to the abstention doctrine").

Pearl urges this court to abandon the "sensitive area of social policy" inquiry, which Pearl argues we apply unevenly. We often have held that land-use planning questions "touch a sensitive area of social policy" into which the federal courts should not lightly intrude. Bank of America, 767 F.2d at 546; Kollsman v. City of Los Angeles, 737 F.2d 830, 833 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985); C.Y. Development Co., 703 F.2d at 377; Santa Fe Land Improvement Co. v. City of Chula Vista, 596 F.2d 838, 840 (9th Cir.1979); Sederquist v. City of Tiburon, 590 F.2d 278, 281 (9th Cir.1978); Rancho Palos Verdes Corp., 547 F.2d at 1094-95.

We recognize that we have at times declined to abstain in cases dealing with arguably more sensitive social issues. See, e.g., Playtime Theaters, Inc. v. City of...