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Elroy Payne v. Mono County; Mono County Board of Supervisors; Mono County Planning Commission

September 13, 2012



This case, in which plaintiff is proceeding pro se, was referred to the undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Defendants Mono County Board of Supervisors and Mono County Planning Commission move to dismiss plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). Dckt. No. 13. For the reasons stated herein, the undersigned recommends that the motion to dismiss be granted with very limited leave to amend.


Plaintiff alleges that he is the owner of a residence and real property near Crowley Lake in Mono County. First Am. Compl. ("FAC"), Dckt. No. 8, ¶¶ 6, 11. According to plaintiff, on December 12, 2002, the Mono County Planning Commission (the "Commission") approved an application from a water company for the construction and installation of a water storage tank in a location directly adjacent to plaintiff's property. Id. ¶¶ 11, 13. The water tank that was approved was to be no higher than 16 feet and no wider than 55 feet, among other things. Id.

¶ 13. Plaintiff alleges that although neither the water company nor any Mono County employees conducted or submitted a survey to determine the precise elevation level upon which the 16 foot tank would be placed, the simulations submitted to the Commission established that the tank bottom would be based at an elevation of 6982 feet. Id. ¶¶ 15, 16. The Commission also required the water company to plant evergreen trees of at least 15 feet in height in order to improve the view for local residents. Id. ¶ 17. On December 17, 2012, the Mono County Board of Supervisors (the "Board") upheld the Commission's vote and gave approval for the construction and installation of the water tank. Id. ¶ 18.

Plaintiff alleges that on July 25, 2008, the water company submitted to various Mono County building and planning agencies technical plans for the design, construction, and installation of the water tank. Id. ¶ 21. According to plaintiff, the plans the company submitted depicted the tank almost four feet higher than in the approved plan. Id. In November 2008, plaintiff then conducted a visual inspection of the tank site and determined that the grading on the site appeared to be completed, even though the water company had not removed a proper amount of earth to comply with the elevation stated in the approved plan. Id. ¶ 22. Plaintiff notified the appropriate Mono County agencies and an investigation was conducted. Id. ¶ 23. On December 23, 2008, the Mono County Department of Public Works notified the water company that the grading was two feet too high and failed to comply with the approved plan, and that the elevation had to be lowered. Id. ¶ 26. However, the addition to the tank was not noticed and/or commented on until February 19, 2009, when an employee from the Department of Public Works noticed the addition and indicated that the new structure exceeded the approved height by over three feet. Id. ¶ 27.

Also, according to plaintiff, on December 11, 2008, the Commission conducted a meeting to decide on a landscaping plan for the tank project, but did not notify plaintiff about the meeting. Id. ¶ 24. At the meeting, the Commission approved a landscaping plan that called for coverage of the tank with trees that were not evergreen trees, as provided in the original approved plan. Id. ¶ 25.

On April 13, 2009, plaintiff requested a hearing from various agencies to review the entire amendment plan and also requested that he be informed as soon as any permits were issued relating to the water tank. Id. ¶¶ 28, 29. The same day, the Mono County Community Development Department, Building Division, issued a permit to the water company to construct and install the water tank. Id. ¶ 30.

On or about May 7, 2009, plaintiff requested from Mono County Counsel all documents relating to the tank project, including all permits issued. Id. ¶ 31. However, plaintiff did not receive notice of the building permit for the tank until on or about June 15, 2009. Id. ¶ 32. A couple days later, Mono County Counsel notified plaintiff that the Department of Public Works had also issued a grading permit. Id. ¶ 33.

On or about June 23, 2009, plaintiff requested an appeal from the Mono County Construction Board of Appeals. Id. ¶ 34. While plaintiff recognized the appeal was late, he noted that he was not informed of the issuance of the permit until 60 days after it issued, despite plaintiff's requests for notice. Id. The Mono County Construction Board of Appeals Board never responded to plaintiff's request for a hearing; instead, Mono County Counsel informed plaintiff that his request was untimely. Id. ¶ 35. The same day, plaintiff requested a hearing and/or appeal from the Board of Supervisors, the Commission, and the Department of Public Works. Id. ¶ 36. Plaintiff received informal notice from the Board of Supervisors that a hearing was set for July 14, 2009, relating only to the issuance of the grading permit. Id. ¶ 37.

On July 14, 2009, plaintiff attended the hearing and argued that the grading permit did not require the water company to grade to a sufficient level to keep the maximum height of the tank at the level originally approved by the Commission and the Board (6998 feet, or 16 feet higher than the approved base elevation of 6982 feet). Id. ¶ 38. Plaintiff also presented evidence that the water company was not being required to plant evergreen trees, as was provided in the original approved plan. Id. The Board also heard testimony from Department of Public Works employees and persons associated with the water company, and determined that the base grade level was to be 6982 feet and the maximum allowable building height was to be 6998 feet. Id.

¶ 39. Then, after receiving evidence from the Department of Public Works employee who originally indicated that the water company's designed structure exceeded the approved height by over three feet but who now indicated otherwise, the Board determined that the top of the tank did not count by law as a component of the tank itself and therefore the tank did not exceed the 16 foot maximum height. Id. ¶ 40. Based on that finding, the Board voted to uphold the grading permit as issued. Id. ¶ 41.

Plaintiff alleges that, after the Board's decision, he sought mandamus relief from the Mono County Superior Court, but his petition for such relief was denied on August 26, 2009. Id.

¶ 42. The water company has since completed the construction of the water tank. Id. ¶ 43. According to plaintiff, the height of the tank exceeds the original approved plan by approximately six feet and completely obstructs plaintiff's view of Crowley Lake. Id. ¶ 44. Additionally, trees are not properly installed so as to cover the tank. Id. ¶ 45.

Plaintiff filed a complaint in this court on August 26, 2011, asserting claims for violation of substantive and procedural due process under the Fourteenth Amendment, and for a permanent injunction, and asserting most of the same facts that were in plaintiff's petition for mandamus relief. See Compl., Dckt. No. 1, ¶¶ 49-63; Req. for Jud. Not. ("RFJN"), Dckt. No. 13-2, at 5-13.*fn1

Then, on January 9, 2012, plaintiff filed an amended complaint, again alleging most of the same facts and claims, but also alleging that several months after the July 14, 2009 hearing, plaintiff discovered that the Board met in secret the night before that hearing and agreed that plaintiff's requests to modify the tank design and construction would be denied. FAC ¶¶ 46-47.

Plaintiff's first amended complaint further alleges that since the petition for mandamus was denied, defendants have refused plaintiff's requests that they make changes to the tank to lessen its impact on plaintiff. Id. ¶ 48. Plaintiff also alleges that personnel in the Mono County Department of Finance have repeatedly found plaintiff in default on his property taxes even though he was not in default, and have refused plaintiff's proper and timely property tax payments, forcing him to overpay his property taxes to prevent a forced sale of his property. Id.

¶¶ 49-50. Additionally, plaintiff alleges that Mono County has sent personnel to investigate alleged housing violations on numerous occasions, and "demanded that Plaintiff do certain things that he is not required to do." Id. ¶ 51. Plaintiff alleges that after he complained to the Board about the investigations, "Mono County personnel confronted Plaintiff ...

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