The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, who is proceeding pro se, brings this civil rights action.
Pending before the court is defendants' motion for summary judgment
(Doc. 74) and plaintiff's opposition thereto (Doc. 109). Also before
the court are: (1) defendants' request for judicial notice (Doc.
74-1); (2) plaintiff's objections (Doc. 110) to defendants' separate
statement of undisputed fact based on alleged perjury;*fn1
and (3) plaintiff's amended motion to strike (Doc. 111) the
declarations filed in support of defendants' motion for summary
judgment based on alleged perjury.
A. Plaintiff's Allegations
Plaintiff names as defendants Siskiyou County, members of the Siskiyou County Planning Commission, members of the Siskiyou County Board of Supervisors, and others. He states that he owns an interest in real property situated in Siskiyou County. The property is located "directly behind a gravel pit owned and operated by the Defendant." According to plaintiff, on August 3, 1966, the Siskiyou County Planning Commission issued a use permit "allowing for the installation and operation of an asphalt hot plant to manufacture aggregate and asphalt paving products." He states that his predecessor-in-interest began making use of the property consistent with the use permit and that the use permit became a "vested property right which runs with the land." He adds that the 1966 use permit does not contain any termination provision.
Plaintiff claims that, on December 10, 2002, "[c]counsel for the Plaintiff gave written notice . . . to Rick Barnum as Director of the Siskiyou County Planning Department that the property owners were going to move forward with a business plan consistent with the Use Permit." On February 13, 2003, the Planning Commission, through its director Wayne Virag, responded with a letter asserting that the use permit was no longer valid. According to plaintiff, the "Planning Director's decision was made without any hearing, without legislative authority, and without any legislative body action all in violation of Plaintiff's due process rights relating to termination of a vested property right." Following the decision, Siskiyou County filed an appeal which was heard on May 4, 2005.*fn2 The Planning Commission rejected the appeal and affirmed its determination that the 1966 use permit was no longer valid. Plaintiff alleges that the appeal was heard over his objection because the Planning Commission "lacked any authority to conduct the [May 4, 2005] hearing." On May 24, 2005, plaintiff appealed to the Siskiyou County Board of Supervisors, which also affirmed the Planning Commission's determination regarding the use permit.
Plaintiff alleges in Count 1a civil rights claim based on the determination that the 1966 use permit was not valid:
In declaring the Use Permit to be invalid based on Siskiyou County Code § 10-6.2501, Siskiyou County by and through the Planning Director, the Planning Commission, and the Board of Supervisors abused their discretion and failed to proceed in the manner required by law in that the termination of the Use Permit deprived Plaintiff of a vested property right.
Termination of the Use Permit constitutes a taking of property without just compensation in violation of Article I, Section 19 of the California Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. The termination violated Plaintiff's procedural and substantive due process rights . . . .
Plaintiff contends that, as the result of the determination that the use permit was no longer valid, he has been "denied the use of the Property consistent with the Use Permit from September of 2000 through the entry of a final order July 13, 2007. . . ."
In their request for judicial notice, defendants ask the court to judicially notice various state court orders and Siskiyou County ordinances. Attached to their request is a July 20, 2007, final judgment in Siskiyou County Superior Court case no. SCCVSV-05-222 in which the state court granted plaintiff's petition for a writ of mandate challenging the determination that the 1966 use permit was invalid. In the 2007 judgment, the state court ordered:
That a Writ of Mandate issue commanding Defendant . . . County of Siskiyou to refrain from denying Plaintiff's . . . right to exercise all rights granted to his predecessor in interest . . . under that certain Use Permit issued August 3, 1966 . . . .
In Count 2, plaintiff references an action he brought asking the Superior Court to declare the 1966 use permit valid with respect to his property.*fn3 According to plaintiff, defendants interposed demurrers based on failure to exhaust administrative remedies because they ". . . did not want the case heard . . . because [they] knew that a hearing concerning a Vested Use Permit would necessarily result in the protection of Plaintiff's property rights."*fn4 Plaintiff states that he was told by the Siskiyou County Counsel -- defendant Frank DeMarco -- that ". . . the county would rather fight Plaintiff in court in hopes of winning instead of taking on the masses of Mt. Shasta when they filed in court if Plaintiff was allowed to go forward." Plaintiff adds:
. . .At that point Plaintiff asked Mr. DeMarco if that meant that the county would rather squash Plaintiff's property rights in court in hopes of the court making a mistake in its final decision and finding against Plaintiff. Mr. DeMarco said "I guess you could state it that way."
According to plaintiff, defendants conspired to thwart his state court case even though they knew the use permit was valid.
Plaintiff also asserts in Count 2 that his case "arises not only of the deprivation of constitutional rights alleged in count 1, but also out of a civil action against plaintiff filed in 2001 by the Siskiyou County District Attorney's Office for damages resulting from plaintiff's sale of dirt dug from the property." He asserts that, through this lawsuit, the "principal parties attempted to deprive Plaintiff of the vested right stated in Count 1 as a method of getting revenge for his successful defense of the frivolous case."*fn5 He adds that the 2001 civil action ". . . was filed instead of a citation for an infraction in an attempt to get a larger sum of money from Plaintiff." Plaintiff does not allege that the action was improperly filed.*fn6
Finally, plaintiff states allegations concerning his application in 2000 for a use permit and reclamation plan. Plaintiff states that objections were raised because of safety concerns relating to a nearby railway underpass. He states that he and county officials agreed to share the cost of a traffic study. According to plaintiff, the traffic study concluded that the underpass was indeed too narrow and needed to be widened before plaintiff's project could go forward. Plaintiff claims that the ". . . engineer made findings, not on the basis of his independent judgment, but on the basis of the undue and unlawful influence of the County and the individuals named in this count of the complaint."
On November 21, 2008, the court issued findings and recommendations addressing defendants' motion to dismiss. The court concluded that plaintiff did not state any cognizable federal claims and recommended dismissal of the action with prejudice. Timely objections to the findings and recommendations were filed and, on March 3, 2009, the District Judge assigned to this case issued an order partially declining to adopt the findings and recommendations and denying the motion to dismiss. The March 3, 2009, order began with the following:
Upon review of the file, the court does not adopt the magistrate judge's findings and recommendations with respect to plaintiff's § 1983 claims based upon the alleged violations of his substantive due process rights and the Takings Clause. The court adopts the magistrate judge's findings and recommendations in all other respects.
As to the Takings Clause, the District Judge outlined the following applicable law:
The Takings Clause of the Fifth Amendment prohibits the government from taking "private property . . . for public use, without just compensation." U.S. Const. amend. V. "Whether a particular restriction amounts to a taking depends largely upon the particular circumstances of each case -- that is, on essentially ad hoc, factual inquiries." Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764, 782 (9th Cir. 2000) (quoting Penn Central Transp. Co. v. City of N.Y., 438 U.S. 104, 124 (1978)). Courts have looked at three primary factors in conducting the balance of public and private factors at stake: "(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the government action." Id. Moreover, if the property owner seeks to press a claim based upon a denial of just compensation and a state provides an adequate procedure for seeking just compensation, "the property owner cannot claim a violation of the Just Compensation Clause until [he] has used the procedure and been denied just compensation." Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 193 (1985).
As to due process, the District Judge outlined the following applicable law:
To state a claim for violation of the substantive due process clause, plaintiff must allege that "a state actor deprived [him] of a constitutionally protected life, liberty, or property interest." Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008) (citing Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026 (9th Cir. 2007)). Such a violation is not preempted by the Takings Clause where the land use action challenged is "so arbitrary or irrational that it runs afoul of the Due Process Clause." Shanks, 540 F.3d at 1087 (quoting Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 542 (2005)).
Applying these rules to the instant case, the District Judge concluded:
Plaintiff's complaint alleges that defendants violated his constitutional rights when the Siskiyou County Planning Director informed him that a Use Permit relating to his property was no longer valid. (Compl., filed July 21, 2008, ¶ 13). The Siskiyou County Planning Commission and the Siskiyou County Board of Supervisors upheld this position. (Id. ¶¶ 18, 21). Taking plaintiff's allegations as true and drawing all reasonable inferences therefrom, plaintiff has sufficiently set forth a claim for violation of his constitutional rights. The court cannot determine as a matter of law on a motion to dismiss the nature of the alleged taking or the nature of the government action. Nor can the court determine, as a matter of law on the record before it, whether plaintiff unsuccessfully attempted to obtain just compensation through State procedures. Therefore, defendants' motion to dismiss these claims on the bases relied upon by the magistrate judge is DENIED.
Finally, the District Judge noted in a footnote: "The court makes no findings with respect to other arguments raised in defendants' motion to dismiss but not relied upon by the magistrate judge."
Given that the court concluded in the November 21, 2008, findings and recommendations that plaintiff stated no cognizable federal claims, and in light of the District Judge's March 3, 2009, order adopting the findings and recommendations in all respects except as specifically discussed in the order, this action is now limited to plaintiff's § 1983 claims based on violation of the Takings Clause and/or violation of substantive due process. Defendants argue in their motion for summary judgment that the District Judge's order had the effect of dismissing all of Count 2 and that, as a result, this action only proceeds on Count 1 as against Siskiyou County and the Siskiyou County Planning Commission.
The court does not agree. It is clear from the complaint and the District Judge's order referencing allegations set forth in the complaint that Claim 1 consists of plaintiff's § 1983 claims (based on both the Takings Clause and due process) as against the municipal defendants. In Count 2 plaintiff "incorporates all other parts of the complaint to the extent that such incorporation is logical, fair, and just." Plaintiff also states: "This claim [Claim 2] arises not only out of the deprivations of constitutional rights alleged in Count 1, but also out of a previous civil case. . . ." In light of these allegations, the court concludes that plaintiff has incorporated his § 1983 claims alleged in Count 1 based on violation of the Takings Clause and/or due process into Count 2. In ...