The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is Defendant's Motion to Dismiss the First Amended Complaint. (Doc. # 17).
On June 25, 2009, Plaintiffs Andrew Contasti, Annette Contasti, and Joe Hernandez initiated this action by filing their Complaint. (Doc. # 1). On November 11, 2009, the Court dismissed the Complaint for lack of subject matter jurisdiction. (Doc. # 9). The Court allowed Plaintiffs to file a motion for leave to amend within thirty days of the date of the order. Id. On January 20, 2010, the Court granted Plaintiffs' Motion to Amend. (Doc. # 14). On January 28, 2010, Plaintiffs filed their First Amended Complaint ("FAC"), which is the operative complaint. (Doc. # 15). On February 12, 2010, Defendant City of Solana Beach filed its Motion to Dismiss the First Amended Complaint. (Doc. # 17). On July 1, 2010, the Court held oral argument on the motion. See Doc. # 22.
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
Plaintiffs are the owners of two adjacent lots, Lots 9 and 10, located in the City of Solana Beach at 360 North Granados Avenue. (Doc. # 15 at ¶ 4). Plaintiffs applied for building permits to build homes on each lot and received notice that the applications were complete on February 24, 2007. Id. at ¶ 12. The home designed for Lot 9 was 4,031 square feet and the home designed for Lot 10 was 4,387 square feet. Id. At a hearing on July 11, 2007, the City Council requested that Plaintiffs reduce the size of the home planned for Lot 9 by 230 square feet. Id. at ¶¶ 20. Plaintiffs agreed to the reduction and submitted revised drawings after the hearing, which were approved by the city. Id. At the same hearing, the City Council denied the permit for Lot 10. Id. at ¶ 23. Although the home proposed for Lot 10 complied with the square footage limitations, the City Council told Plaintiffs that it wanted the size of the home reduced, but did not allow Plaintiffs to agree to the reduction at the hearing. Id. The City Council did not tell Plaintiffs how much the home should be reduced by, instead telling Andrew Contasti to "take his best shot" at submitting a reduced square footage home. Id. Although Plaintiffs requested a variance for Lot 10 similar to the variance granted for Lot 9, the City Council refused the request. Id. at ¶ 33. After the hearing, Plaintiffs submitted revised drawings which reduced the size of the home by 258.25 square feet and changed the exterior of the home "from a Tuscan Villa look to a Craftsman home style." Id. at ¶¶ 24, 35. The director of community development, who could grant or deny variances, declined to rule on the revised application and instead recommended that the City Council make the decision. Id. at ¶ 36. At a hearing on September 19, 2007, the City denied Plaintiff's proposed home on Lot 10. Id. at ¶¶ 25-26.*fn1
City Resolution 2007-125, "supporting the denial of the home on Lot 10," states: "'The proposed single-family residence is designed in a manner that is incompatible with other nearby residences because it is not compatible with existing or potential future single family development.'" Id. at ¶ 28. "This ground for denial is both tautological and arbitrary because there is no reason given for alleged incompatibility with 'nearby residences.'" Id. The Resolution states that "'Adverse effects upon neighboring properties have been identified from this development.'" Id. "No such adverse effects are identified, other than square footage comparisons with surrounding fifty-year-old properties." Id.
The council concluded by finding that the proposed residence 'is approximately 387 square feet larger than the maximum size of future residences in the area analyzed.' The alleged incompatibility of a single-family residence in a single-family zoning district that complies with then-applicable maximum square footage limits is an arbitrary and unreasonable conclusion. The reference to 'maximum size of future residences' apparently refers to Ordinance No. 357.
As the planning staff noted: 'The proposed project is not subject to Ordinance No. 357 because it [the project application] was deemed complete prior to the ordinance effective date of March 24, 2007 (project deemed complete as of February 24, 2007).' To the extent that the City sought to impose a later-adopted ordinance to plaintiffs' application, the City acted arbitrarily and unreasonably.
Id. The Resolution also states: "'The site layout and design of the proposed project do not visually and functionally enhance its intended use as a single-family residence because the bulk and scale of the proposed project is incompatible with nearby structures.'" Id. "There is no definition of 'bulk' and 'scale' in the municipal ordinance, nor are those terms mentioned in the staff analysis of Lot 10. To the extent 'bulk and scale' are not defined by maximum allowable floor area, height maximums, and square footage maximums contained in the ordinance (all of which plaintiffs' application satisfied), then those findings are arbitrarily vague and subjective and unreasonable." Id.
After this resolution, Plaintiffs did not further pursue a variance because "the Council's finding of 'adverse impacts upon neighboring properties' legally foreclosed the requisite finding to support [the granting] of a variance that [Plaintiffs' proposed design] 'not be detrimental' to the 'properties . . . in the vicinity.'" Id. at ¶ 39. Additionally, because Plaintiff's original plans complied with all applicable city zoning regulations, "[f]urtherpursuit of a variance would have been futile because . . . variances are typically granted for departures from objective development standards . . . . [and] there was no departure from objective development standards in [Plaintiff's] proposal from which to seek a variance." Id. at ¶ 40.
The FAC's first claim for relief alleges the City's denial of Plaintiffs' application for a building permit for Lot 10 was arbitrary and unreasonable, constituting a deprivation of Plaintiffs' right to due process under the Fourteenth Amendment of the United States Constitution, thereby violating 42 U.S.C. § 1983.
The FAC's second claim for relief alleges that the City's denial of Plaintiffs' application for a building permit for Lot 10 constituted a deprivation of Plaintiffs' right to equal protection under the Fourteenth Amendment of the United States Constitution, thereby violating 42 U.S.C. § 1983. In support of this claim, Plaintiffs allege:
The proposed homes on Lots 9 and 10 were identical in all material ways, and the City's approval of one (Lot 9) and denial of the other (Lot 10) was discriminatory. There was no rational basis for this treatment. . . . In addition, the City's approval of new homes in the immediate vicinity of plaintiffs' property demonstrated the discriminatory treatment of the City's denial of the Lot 10 proposed home. These approvals included . . . the approval of homes located at 140 South Granados (4,209 square feet), 142 South Granados (4,209 square feet), and 146 ...