Sederquist v. City of Tiburon
| Decision Date | 15 July 1985 |
| Docket Number | No. 83-2111,83-2111 |
| Citation | 765 F.2d 756 |
| Parties | David N. SEDERQUIST and Marilyn T. Sederquist, Plaintiffs-Appellants, v. CITY OF TIBURON, a municipal corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert G. Schuchardt, San Francisco, Cal., for plaintiffs-appellants.
Lisa A. Goldfien, San Rafael, Cal., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before MERRILL, SKOPIL, and FERGUSON, Circuit Judges.
This case presents another chapter in a long and bitter dispute between the City of Tiburon and several landowners. The essence of the landowners' claim is that the City has taken their property without just compensation in violation of the fifth and fourteenth amendments of the United States Constitution. The district court granted summary judgment in favor of the City. We reverse and remand.
In 1959, David and Marilyn Sederquist acquired by deed approximately one acre at the top of Tiburon Ridge. Frank and Marie Gariffo acquired approximately one-half acre by deed in 1965, and J.W. Schuchardt similarly acquired approximately one-half acre in 1974. These lots and three others comprise an area referred to as the Hacienda Heights Subdivision located in the City of Tiburon. Tiburon was incorporated in 1964.
Each of these conveyances included a grant of a 50-foot easement to use Hacienda Drive for roadway and utility purposes. This easement extends from Hacienda Heights to Trestle Glen Boulevard, a public road. Hacienda Drive at this point is an unpaved road that bisects a "natural preserve" located near Hacienda Heights.
Hacienda Heights was created by the subdivision of a tract of property into five lots in 1958 and a sixth lot in 1959. According to the then California Subdivision Map Act, Cal.Govt.Code Sec. 11535, the split of more than five parcels constituted a "subdivision." Although that Act required that a subdivision map be filed for each subdivision, no subdivision map for Hacienda Heights was filed. In 1974, the City discovered this deficiency and recorded notices of violation against the properties.
In 1967, the City adopted Ordinance 9NS. This ordinance zoned the landowners' property RO-1, which allowed for one residence per 40,000 sq. ft. (approximately one acre). In 1968, the Sederquists applied for a variance to allow their land to be divided into two lots. The City's Board of Adjustments investigated the request and recommended the variance be granted because "the proposed lots are in character with the other five lots in the immediate area." The City approved this variance by Resolution. For some unknown reason, a Parcel Map required to put this variance into effect was never filed.
In 1971, the Sederquists inquired about obtaining a building permit for one of their two lots. At this time the Sederquists In February 1972, the Sederquists filed another application for a lot split. In April 1972, the Sederquists filed an application for a use permit. At that time the City had a moratorium on development of "ridge lands" that it was considering acquiring for "open space." This moratorium included the Sederquists' land. That moratorium necessitated the "use permit."
claim they discovered that a Parcel Map concerning the 1968 variance had never been recorded. The lack of a recorded Parcel Map nullified the 1967 lot split.
In August 1972, the City passed Resolution 466 which approved the use permit and authorized the renewed request for a lot split. The resolution conditioned approval, and hence recording of the Parcel Map, on the City Engineer's certification that "provision has been made for adequate road access, fire protection, and storm drainage." The City proceeded to certify the Sederquists' Parcel Map. This included a certification from the City Engineer that the map conformed with the requirements of section 11575 of the Subdivision Map Act. The Deputy City Engineer sent the Parcel Map and the Sederquists' check for the recording fee to the Director of Community Development. The Deputy City Engineer's accompanying letter stated the approval was of the map and not the conditions required by Resolution 466, as he understood they would condition approval of a building permit. The Director of Community Development certified the Parcel Map's compliance with Chapter 14 of the City Code. He then sent the map to the Marin County Recorder, who recorded it.
The City refuses to recognize the recording of the Parcel Map. It bases this on a claim that the Sederquists knew the conditions of Resolution 466 had not been met. It claims the approval of the lot split was done mistakenly.
In addition to the easement to use Hacienda Drive, the Sederquists own an easement to use Round Hill Road. The Sederquists claim this is an "imperfect easement" in that it is clouded by the existence of a one-foot non-access strip that the City must waive to permit the Sederquists to use the easement. This easement apparently also does not meet the City's standards in width for paving for residential access.
In November 1973, the Sederquists and others petitioned for approval of an Assessment District. The proposed district would have had the power of eminent domain to allow Round Hill Road to be widened so utilities could be constructed and the road paved as access to Hacienda Heights. A memorandum from the City Manager to the City Council recommended the Assessment District not be approved until the City: (1) adopts its "Circulation Element," and (2) "approves a Master Plan and an EIR" (Environmental Impact Report). The Town Council denied approval of the district without prejudice to the filing of a new petition.
The Sederquists inquired whether the City would allow them to pave and use Hacienda Drive. The City responded that, because it considered Hacienda Heights to be an illegal subdivision, the Sederquists needed to comply with all the requirements for a legal subdivision. It stated that one of those requirements was "the preparation of subdivision maps (which may be the 'master plan' of the area if you prefer)."
In November 1975, the Sederquists and Gariffos submitted an application to pave the relevant half-mile portion of Hacienda Drive to serve as a private driveway. The City deemed the application to be incomplete because it did not include a master plan of the area. Nevertheless, the Mayor directed the Council to consider the application. The City denied the application to pave in August 1976 when it adopted Resolutions 203 and 842. The latter resolution stated that the proposed Circulation Element provides that Hacienda Drive remain unpaved and "the proper improved street access is via Round Hill Road." It further stated the land was undeveloped with no utilities and that access "is satisfactory for the use presently being made."
The Sederquists also applied for a variance from the provisions of the zoning ordinance The City insists that the landowners submit a "Master Plan" because their easement to use Hacienda Drive traverses RPD-1 zoned land for one-half mile. At a Board of Adjustments hearing in June 1976, the City's Director of Community Development stated that the City is requiring "a master plan for the entire development of those seven lots and the access, ...." At the same hearing a board member expressed concern to the City Attorney over the propriety of requiring a property owner to "try[ ] to make commitments on properties that you are not in control of." The City Attorney responded that those are problems that arise when there is an "illegal subdivision." Sederquist filed a declaration stating the other lot owners in Hacienda Heights would not cooperate in attempting to develop a master plan. The City's Director of Community Development submitted a declaration stating that the City does not require an application to contain "the signature or approval of other property owners."
which required a Master Plan and Environmental Impact Report. The City denied the variance when it adopted Resolutions 278 and 841. The landowners lost a state court proceeding for a writ of mandate challenging the denial.
In 1976, the City adopted its "Circulation Element." The plan designates the unpaved portion of Hacienda Drive involved in this litigation as an "unpaved all-weather emergency service" road. It states that roads so designated "should" have a locked gate at their junction with paved streets. There is a gate on Hacienda Drive; however, it is not locked. The Circulation Element provides that Round Hill Road should be extended and improved to provide access to residential properties in the area.
On February 11, 1975 the landowners filed a complaint in district court. They alleged inverse condemnation, a denial of due process and equal protection, estoppel, and misrepresentation. The district court abstained from the state law questions. See Sederquist v. City of Tiburon, 590 F.2d 278 (9th Cir.1978). After state court proceedings, the landowners returned to federal court for consideration of their federal claims. They expressly reserved those claims for federal court litigation per England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). The court granted the City's motion for summary judgment and denied the landowners' motion for partial summary judgment.
We review de novo a grant of summary judgment. Lojek v. Thomas, 716 F.2d 675, 677 (1983). We must determine if there is any genuine issue of material fact and whether the substantive law was correctly applied. Fed.R.Civ.P. 56(c); Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984).
There is one theme that goes primarily to the heart of this dispute--the failure of the landowners to submit a complete application for permission to...
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Kawaoka v. City of Arroyo Grande
...is considered as part of the Kawaokas' facial challenge.7 The Kawaokas argue that the district court misapplied Sederquist v. City of Tiburon, 765 F.2d 756 (9th Cir.1984). The district court properly interpreted Sederquist to question whether a city may properly require joint action by prop......
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...It follows that plaintiffs' had a right to the connections, again, unlike appellants here. Finally, appellants cite Sederquist v. City of Tiburon (9th Cir.1984) 765 F.2d 756 for the principle that regulations other than general zoning laws can amount to a taking. We do not disagree. But, ag......
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