MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This is a federal civil rights case brought pursuant to 42 U.S.C. Section 1983 arising from the routine denial of a zoning change by the defendant City of Sunnyvale. Plaintiffs Leonard and Maryann Tyson allege violations of their rights to due process and equal protection secured by the Fourteenth Amendment to the United States Constitution, claiming that defendants arbitrarily denied plaintiffs' application to rezone certain real property. Defendants move for summary judgment, asserting that (1) plaintiffs' cause of action is barred by the doctrines of res judicata and collateral estoppel because plaintiffs failed to exhaust their judicial remedies in state court; (2) plaintiffs cannot establish that they had a property right protected by the due process clause; (3) the individual defendants are entitled to qualified immunity; and (4) plaintiffs' claim for damages is unsupported by the evidence.
In 1993, plaintiffs purchased a parcel of real property at a foreclosure sale with the intention of developing the property into single family homes. The total cost to plaintiffs was approximately $ 395,000, consisting of plaintiffs' bid of $ 150,000 and existing encumbrances on the property. The property, which measures approximately 38,768 square feet, is located at 1043 Cascade Drive, Sunnyvale, and is surrounded on three sides by single-family homes with lot sizes ranging from approximately 7,600 to 12,700 square feet. The property is L-shaped with a limited frontage of approximately 117 linear feet along Cascade Drive, and is wider and deeper towards the back. Plaintiffs knew at the time of purchase that the properly was in a residential neighborhood zoned "R-1," which required a minimum lot size of 8,000 square feet per dwelling unit, and a minimum front yard lot width (or "frontage") of 76 feet per lot The minimum frontage requirement prevented the development of more than one home along 1043 Cascade Drive, even though plaintiffs' 38,786 square foot lot could theoretically be divided into four 8,000 square foot lots under the R-1 zoning designation. However, prior to purchasing the property, Leonard Tyson had conversations with a member of the City of Sunnyvale planning staff, David Gates, which led him to believe that the property could be rezoned to allow for higher density home development. According to Mr. Gates, rezoning the property from R-1 to R-0 would be a "slam dunk."
In April of 1993, plaintiffs submitted three separate applications to the City of Sunnyvale Department of Community Development, Planning Division. Most importantly, plaintiffs applied for a zoning change from R-1 to "R-0/PD," to allow construction of up to six homes with frontage along a private access road and cul-de-sac instead of along a public road. The "R-1" to "R-0" zoning change would have reduced the minimum lot size requirement from 8,000 to 6,000 square feet per lot; the "PD" or planned development designation would have allowed for the construction of a private access street and a deviation from the minimum frontage restriction. The remaining two applications were for a special development permit ("SDP") and a tentative map
for the development of single family homes under the proposed R-0/PD zoning.
In accordance with the City of Sunnyvale's Charter
and Municipal Code, the Department of Community Development, Planning Division staff is responsible for reviewing the three applications, and preparing a report with recommendations to the Planning Commission. The Planning Commission reviews the staff's report and recommendations, conducts public hearings, and votes on the applications. Although the Planning Commission has the authority to approve SDPs, it is the City's standard policy to refer any matter involving re-zoning automatically to the City Council for additional public hearings and a final vote.
Over the course of the following year, plaintiffs' property was the subject of seven separate Planning Commission or City Council meetings, as well as four public hearings. At all relevant times, defendants William F. Powers, Trudi Ryan, and Gerri Langtry were employed by the City of Sunnyvale: Powers was Director of Community Development; Ryan was Planning Officer, acting supervisor of the Planning Division of the Department of Community Development; and Langtry was an Associate Planner within the Planning Division who reported directly to Ryan.
Trudi Ryan assigned Gerri Langtry the responsibility for reviewing the plaintiffs' applications and for preparing a Planning Division staff report ("staff report") for distribution to the Planning Commission, members of the public, and the plaintiffs. In the report, Ms. Langtry recommended on behalf of the staff that the Planning Commission deny the applicant's request to rezone the property from R-1 to R-0, and in the alternative, modify the zoning designation from R-1 to R-1/PD to allow the construction of four single family units along a private access street and cul-de-sac. Attached to the report were: maps, sketches and diagrams submitted by the plaintiffs; six letters submitted by residents in support of the proposed project and one resident letter in opposition to the project; a petition containing 90 signatures of individuals in opposition to the project; and other related documents.
The Planning Commission convened on June 14, 1993 to discuss the Planning Division's recommendations and to vote on plaintiffs' applications. The Commission also conducted a public hearing, during which seven individuals residing in the Cascade Drive neighborhood stated their opposition to the proposed project. Nevertheless, the Commission decided to postpone taking any action until June 28, 1993 at the request of Leonard Tyson. In the interim, the plaintiffs submitted modifications to the proposed SDP application, including changes to the lot sizes and architectural modifications to three of the six house plans.
The Planning Division distributed an updated staff report, which recommended for the second time that the Commission deny plaintiffs' applications, and in the alternative approve rezoning to R-1/PD. On June 28, 1993, the Planning Commission reconvened. After what appears to be a preliminary vote by the Commission against granting plaintiffs' applications, plaintiff Leonard Tyson interjected a request for a continuance to July 26, 1993, which was granted. The Commission went forward with the public hearing portion of the meeting, during which Mr. Tyson addressed the Commission and presented slides and other exhibits in support of his applications. The Commission also considered the comments of five residents in the Cascade Drive neighborhood who were against the development of six homes, and one resident who was in favor of the plaintiffs' proposed development plan.
At the Planning Commission meeting held on July 26, 1993, plaintiffs requested another continuance to August 9, 1993. Before the next meeting, Leonard Tyson submitted a modified proposal for developing five homes instead of six, a document he characterizes as a "positive consensus" illustrating neighborhood support for the proposed development, and a speech.
The Planning Division staff prepared an updated staff report, which inexplicably did not include Mr. Tyson's "positive consensus" or speech. However, Mr. Tyson personally distributed the "positive consensus" and read his speech verbatim at the Planning Commission meeting held on August 9, 1993. The Planning Division staff recommended that the Commission deny plaintiffs' proposed development of five homes, and instead approve development of four homes. Seven of the eight neighbors attending the meeting also voiced their opposition to the proposed development. The Planning Commission voted 5-2 in favor of denying plaintiff's proposal and in favor of the staff's recommendations, whereupon the matter was automatically referred to the Sunnyvale City Council, which retains sole discretion to authorize zoning changes.
At the first City Council meeting held on August 31, 1993, a group of neighbors from the Cascade Drive area requested and received a continuance of the matter. On September 14, 1993, the City Council met again. During the public hearing portion of the meeting, Leonard Tyson distributed various materials and addressed the Council at length regarding the history of the project, his proposal, and the concerns of the staff and neighbors. Nine neighbors also addressed the Council, six who stated their opposition, and three who stated their support, for the plaintiffs' proposed development. The City Council voted unanimously in accordance with the recommendations of the Planning Commission to deny plaintiffs' applications, and in the alternative to approve rezoning from R-1 to R-1/PD.
At the next scheduled meeting held on September 21, 1993, the City Council denied plaintiffs' request for reconsideration of his applications, and for the second time, voted unanimously to support rezoning from R-1 to R-1/PD. Thereafter, plaintiffs did not submit any petitions or additional applications to have the property rezoned.
Instead, consistent with the new R-1/PD zoning designation, plaintiffs submitted new applications for an SDP to construct four homes and for a tentative map to subdivide the property into four lots and a private street, which were both unanimously approved by the planning Commission by May of 1994. Shortly thereafter, plaintiffs executed a purchase and sale agreement for their property.
Plaintiffs did not seek review of the City Council's decision by way of administrative mandamus pursuant to California Code of Civil Procedure Section 1094.5,
or ordinary mandamus pursuant to California Code of Civil Procedure Section 1085. Instead, plaintiffs filed the instant action on July 6, 1994, claiming that defendants violated their constitutional rights to due process and equal protection, and deprived them of the fair market value of their property.
On July 27, 1994, plaintiffs signed and accepted the terms and conditions of the SDP granted by the City of Sunnyvale. In November of 1994, plaintiffs closed escrow on the sale of the still undeveloped property for $ 630,000. The property has since been developed with the construction of four single-family homes and a private street.
Summary judgment shall be entered against the non-moving party if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.
Fed.R.Civ.P. 56(c). Once a proper motion is made, entry of summary judgment is mandated where the responding party fails to make a showing sufficient to establish the existence of an element to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The test to determine whether a motion for summary judgment should be granted mirrors the standard for a directed verdict: "the trial judge must direct the verdict if, under governing law, there can be but one reasonable conclusion as to the verdict" Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial' under Rule 56(c)." Matsushita Electric Industrial Co. v. Zenith Radio Corp. 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
In determining whether there are genuine issues of material fact for trial, the evidence is viewed in the light most favorable to the nonmoving parties, and all justifiable inferences are to be drawn in their favor. Anderson, 477 U.S. at 255, 106 S. Ct. at 2513; Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104 (9th Cir. 1991). The substantive law determines which facts are material. Id. at 248, 106 S. Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment" Id. Genuine issues are not raised by mere conclusory allegations. Blodgett v. County of Santa Cruz, 553 F. Supp. 1090, 1094 (N.D. Cal. 1981), aff'd 698 F.2d 368 (1982). "Nor are they raised by allegations in the complaint which are not supported by the record submitted, and which are controverted by affidavits in support of the motion for summary judgment" Blodgett, 553 F. Supp. at 1094; Fed.R.Civ.P. 56(e). Furthermore, a "mere existence of a scintilla of evidence" is insufficient to defeat a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S. Ct. at 2512. Where there are no genuine issues of material fact, and the only dispute is as to pure legal questions, summary judgment is the proper procedural device for adjudicating the lawsuit. Smith v. Califano, 597 F.2d 152, 155 (9th Cir. 1979), cert. denied by Smith v. Harris, 444 U.S. 980, 100 S. Ct. 481, 62 L. Ed. 2d 406 (1979).
To prevail on a section 1983 claim, plaintiffs must show that their alleged injuries amounted to a constitutional deprivation, and that the defendants' actions caused the constitutional violation. Halverson v. Skagit County, 42 F.3d 1257, 1260 (9th Cir. 1994).
In the present case, plaintiffs allege violations of their rights to due process and equal protection arising out of the deprivation of a property interest "in that only four houses were approved for the property as opposed to five or six houses, which deprived plaintiff of the far market [value] of his property."
Thus, the alleged constitutional violations are predicated on the denial of plaintiffs' re-zoning application.
Plaintiffs assert that they were not afforded procedural due process because they were deprived of their right to a fair hearing before unbiased City planners; that they were denied substantive due process when defendants arbitrarily and capriciously denied their re-zoning application; and further, that they were denied equal protection because defendants accorded more favorable zoning treatment to a property allegedly similar to plaintiffs' property.
A. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment protects against deprivation "of life, liberty, or property, without due process of law." U.S. Const., amend. XIV, sec.1.
To state a procedural due process claim, plaintiffs must establish that they had a protected property interest, and if so, that they were denied this property right without the process which was due under the circumstances. 732 F. Supp. 1046, 1053 (C.D. Cal. 1990). "At the core of the due process clause is the right to notice and 'at a meaningful time and in a meaningful manner.'" Sinaloa Lake Owners Association v. City of Simi Valley, 882 F.2d 1398, 1405 (9th Cir. 1989), cert. denied by Doody v. Sinaloa Lake Owners Ass'n, Inc., 494 U.S. 1016, 110 S. Ct. 1317, 108 L. Ed. 2d 493 (1990). Further, "a fair trial in a fair tribunal is a basic requirement of due process," which applies not only to courts, but also to state administrative agencies. Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995).
1. Plaintiffs Had No Protected Right To R-0 Zoning
The property interests protected by the due process clause are defined by state law. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001, 104 S. Ct. 2862, 81 L. Ed. 2d 815 (1984) (property interests are not created by the constitution; rather, they are created and their dimensions are defined by existing independent sources such as state law); Boone v. Redevelopment Agency of City of San Jose, 841 F.2d 886, 893 (9th Cir. 1988), cert. denied 488 U.S. 965, 109 S. Ct. 489, 102 L. Ed. 2d 526 (1988); Richmond Elks Hall Ass'n v. Richmond Redevelopment Agency, 561 F.2d 1327, 1330 (9th Cir. 1977). Under California law, there is no right to any particular or anticipated zoning. Lakeview Dev. Corp. v. City of South Lake Tahoe, 915 F.2d 1290, 1295-96 (9th Cir. 1990), cert. denied, 501 U.S. 1251, 111 S. Ct. 2890, 115 L. Ed. 2d 1055 (1991), citing Avco Community Developers, Inc. v. South Coast Regional Comm'n, 17 Cal. 3d 785, 796, 132 Cal. Rptr. 386, 553 P.2d 546 (1976), appealed dismissed cert. denied 429 U.S. 1083, 97 S. Ct. 1089, 51 L. Ed. 2d 529 (1977) ("It is beyond question that a landowner has no vested right in existing or anticipated zoning."); Arlington Group v. City of Riverside, 2 F.3d 1156 (9th Cir. 1993) (unpublished disposition); Cf. Toso v. City of Santa Barbara, 101 Cal. App. 3d 934, 162 Cal. Rptr. 210 (1980), cert. denied 449 U.S. 901, 101 S. Ct. 271, 66 L. Ed. 2d 131 (1980) (property owner acquires no vested right as against future zoning). Nor is there a right to discretionary permits. Avco, supra.
However, plaintiffs emphasize that a Planning Division staff member, David Gates, told them that re-zoning the property to R0/PD was a "slam dunk," implying that "but for" the alleged due process violation, it was virtually certain that their re-zoning application would have been approved. In Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54 (2d Cir. 1985), the court addressed a similar argument brought by a plaintiff landowner who had been denied a license and certificate of approval for the operation of an automobile junkyard. In evaluating the procedural due process claim, the court focused on whether plaintiff had "a legitimate claim of entitlement" to the license and certificate. Id. at 58; see also Parks v. Watson, 716 F.2d 646, 656 (9th Cir. 1983) ("A property interest in a benefit protected by the due process clause results from 'a legitimate claim of entitlement' created and defined by an independent source, such as state or federal law."). The court articulated the test for this inquiry to be whether there was either a "certainty or a very strong likelihood" that the applications would have been granted in the absence of the alleged due process violation. Id. at 59 Applying this test to the present case, it is clear that Mr. Gates' comments did not create a "legitimate claim of entitlement." Mr. Gates was a planner for the City of Sunnyvale Planning Division, and was not an agent of the Planning Commission nor the City Council. Plaintiffs have failed to present any evidence that Mr. Gates had actual or apparent authority to assure or promise plaintiffs that their rezoning application would be approved. Moreover, the undisputed facts establish that approving a re-zoning is purely a discretionary act, which can only be authorized by the City Council.
As a matter of law, plaintiffs did not have a vested right to a particular zoning designation, and accordingly, their procedural due process claim necessarily fails. See e.g. Boone v. Redevelopment Agency of City of San Jose, 841 F.2d at 893.
2. Plaintiffs Were Provided Due Process
Even if plaintiffs had a vested property interest, which they did not, they have nevertheless failed to establish that they were deprived of a fair proceeding before unbiased decision-makers. "In attempting to make out a claim of unconstitutional bias, a plaintiff must 'overcome a presumption of honesty and integrity' on the part of decision-makers." Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995). Plaintiffs must show that "the adjudicator 'has prejudged, or reasonably appears to have prejudged, an issue.'" Id.
Plaintiffs specifically fault defendant Gerry Langtry for omitting the "positive consensus" and speech from the staff report.
Plaintiffs also assert that defendant William Powers "called plaintiff Leonard Tyson a 'sly operator' in front of Lisa Grote, Bill Powers, and Brice McQueen, all members of various Sunnyvale City Councils."
In addition, plaintiffs assert that defendant Trudi Ryan "'laughed historically' [sic] at plaintiffs on the telephone and told them 'guess what...you can't go in for another year to re-submit your plans' upon the Commission's refusal to re-zone plaintiff's real property."
None of this conduct rises to the level of a constitutional violation for various reasons. The failure to include the "positive consensus" and speech in the staff report was rectified by Leonard Tyson when he distributed the "positive consensus" and read his speech verbatim at the Planning Commission meeting held on August 9, 1993. Further, plaintiffs' assertion that William Powers called Leonard Tyson a "sly operator" is absolutely unsupported by competent evidence, and is irrelevant to the City Council's decision to deny plaintiffs' re-zoning application.
The telephone conversation between Trudi Ryan and Mr. Tyson is also irrelevant to the City Council's decision to deny plaintiffs' re-zoning application: indeed, the conversation took place after the City Council had finally denied the re-zoning application. Even if the comments of Ryan and Powers could be interpreted as some evidence of bias, neither defendant had authority to approve or reject plaintiffs' re-zoning application.
Moreover, the undisputed evidence establishes that Leonard Tyson attended the seven public meetings and four public hearings at which his property was discussed, and was given an opportunity to address the Planning Commission as well as the City Council. There is no competent evidence indicating that the individual defendants negatively influenced the City Council's decision. Nor is there any evidence suggesting any irregularities during these proceedings; rather, the minutes of these meetings confirm that discussions regarding plaintiffs' property were conducted in an orderly and professional manner. In short, plaintiffs received at least the minimum due process required by the Constitution, and have failed to overcome the presumption that the City Council members acted with honesty and integrity. Accordingly, defendants are entitled to summary judgment to the extent the section 1983 claim is predicated on a purported violation of plaintiffs' right to procedural due process. See Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 830 (1st Cir. 1982), cert. denied 459 U.S. 989, 103 S. Ct. 345, 74 L. Ed. 2d 385 (1982).
B. Substantive Due Process
The due process clause also includes a substantive component "which guards against arbitrary and capricious government action even when the decision to take that action is made through procedures that are in themselves constitutionally adequate." Sinaloa Lake Owners Assn. v. City of Simi Valley, 882 F.2d at 1407. "In zoning dispute cases, the principle of substantive due process assures property owners of the right to be free from arbitrary or irrational zoning actions." Arroyo Vista Partners v. County of Santa Barbara, 732 F. Supp. at 1053. To establish a violation of substantive due process, plaintiffs must prove that the defendants' actions were "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Sinaloa, 882 F.2d at 1407; 17 F.3d 1227, 1234 (9th Cir. 1994), cert. denied U.S. , 115 S. Ct. 193, 130 L. Ed. 2d 125 (1994). Thus, any government action which 'has no substantial relation to the public health, safety, morals, or general welfare' is arbitrary and unreasonable, and the converse is also true. Halverson v. Skagit County, 42 F.3d 1257, 1262 (9th Cir. 1995).
"The protection from governmental action provided by substantive due process has most often been reserved for the vindication of fundamental rights," such as marriage, family, procreation, and the right to bodily integrity. Halverson v. Skagit County, 42 F.3d 1257, 1261 (9th Cir. 1994) (emphasis added), citing Albright v. Oliver U.S. , 114 S. Ct. 807, 812, 127 L. Ed. 2d 114 (1994). The Supreme Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended." Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). Accordingly, where, as here, plaintiffs rely on substantive due process to challenge governmental action that does not impinge on a fundamental right, federal courts "do not require that the government's action actually advance its stated purposes, but merely look to see whether the government could have had a legitimate reason for acting as it did." Halverson v. Skagit County, 42 F.3d at 1262, citing Wedges/Ledges of California, Inc. v. City of Phoenix, 24 F.3d 56, 66 (9th Cir. 1994); see also, Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir.), cert. denied U.S. , 115 S. Ct. 193, 130 L. Ed. 2d 125 (1994). In order to survive the motion for summary judgment, plaintiffs must demonstrate the irrational nature of the defendants' actions by showing that they "could have had no legitimate reason" for their decisions. See Halverson v. Skagit County, 42 F.3d at 1262, citing Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir.), cert. denied U.S. , 115 S. Ct. 193, 130 L. Ed. 2d 125 (1994). If it is "at least fairly debatable" that the decision is rationally related to a legitimate government interest, there can be no violation of substantive due process. Nelson v. City of Selma, 881 F.2d 836, 838 (9th Cir. 1989).
Rejection of development projects, including refusals to issue discretionary permits, do not ordinarily implicate substantive due process. Stubblefield Const. Co. v. City of San Bernardino, 32 Cal. App. 4th 687, 38 Cal. Rptr. 2d 413 (1995), cert. denied U.S. , 116 S. Ct. 300, 133 L. Ed. 2d 205 (1995). In Stubblefield, plaintiffs alleged violations of their substantive due process and equal protection rights, claiming that the City of San Bernardino had irrationally and arbitrarily manipulated the City processes and procedures for no legitimate reason, thereby preventing plaintiffs from constructing apartment buildings. The court held that plaintiffs had no vested right to build any particular apartment buildings, and that even if they did have such a right, they failed to establish a substantive due process violation. The court reasoned that the doctrine of substantive due process "does not protect individuals from all [governmental] actions that infringe liberty or injure property in violation of some law." Id. at 709. "Rather, substantive due process prevents "governmental power from being used for purposes of oppression," or "abuse of government power that shocks the conscience," or "action that is legally irrational in that it is not sufficiently keyed to any legitimate state interests." Id. quoting PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28 (1st Cir. 1991), cert. dismissed 503 U.S. 257, 112 S. Ct. 1151, 117 L. Ed. 2d 400 (1992). The court found that the City of San Bernardino had responded to political concerns, and concerns of constituents in the affected area, and that plaintiff had failed to establish that a particular councilman's strenuous opposition to the proposed development was arbitrary or irrational. The court characterized the lawsuit as an ordinary dispute between a developer and a municipality, and essentially declined to "sit as a super zoning board or a zoning board of appeals." Id. at 710-712.
Similarly, in Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir. 1982), plaintiffs alleged due process violations, asserting that the local planning board's rejection of plaintiffs' proposed residential housing development plan deprived them of their "right" to conduct a legitimate business and make a profit. The court rejected the plaintiffs' argument that their constitutional rights had been violated by the arbitrary application or "distortion" of the law to their property. The court also rejected plaintiffs' implication that the alleged constitutional violation was caused by town officials who were motivated by "parochial views of local interests which worked against plaintiffs' plan," stating:
Plaintiffs would thus have us rule that the due process clause to the United States Constitution was violated when Bolton's Planning Board, for the purpose of protecting what it viewed as the town's basic character, openly interpreted state subdivision laws and a state court decision in ways which frustrated plaintiffs' large scale housing development of a particular design.