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Andrew Contasti, An Individual; Annette v. City of Solana Beach

September 18, 2012

ANDREW CONTASTI, AN INDIVIDUAL; ANNETTE CONTASTI, AN INDIVIDUAL; JOE HERNANDEZ, AN INDIVIDUAL,
PLAINTIFFS,
v.
CITY OF SOLANA BEACH, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion for Summary Judgment, or in the Alternative Summary Adjudication of Issues filed by Defendant City of Solana Beach (ECF No. 32).

PROCEDURAL FACTS

On October 29, 2007, in the Superior Court of California, County of San Diego, Plaintiffs Andrew Contasti and Joe Hernandez filed a petition for writ of mandate pursuant to California Code of Civil Procedure section 1085 and a complaint for damages alleging violations of the Fifth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 against the Defendant City of Solana Beach. (ECF No. 5-3 at 2-8). On February 15, 2007, Plaintiffs Andrew Contasti and Joe Hernandez filed an amended petition for writ of mandate pursuant to California Code of Civil Procedure section 1085 and a complaint for damages alleging deprivation of due process and equal protection in violation of 42 U.S.C. § 1983. Id. at 10-21. On August 15, 2008, the state court issued an order denying the petition for writ of mandate and sustaining a demurrer to Plaintiffs' equal protection claim. Id. at 23. The court granted Plaintiffs twenty days to file an amended petition for writ of mandate or to amend the equal protection claim. Id. On September 3, 2008, Plaintiffs Andrew Contasti, Annette Contasti, and Joe Hernandez filed a second amended complaint in state court, which asserted claims for inverse condemnation and deprivation of substantive due process in violation of 42 U.S.C. § 1983. Id. at 25-34. The second amended complaint did not contain a petition for writ of mandate or a claim for violation of equal protection. Id. On April 3, 2009 Plaintiffs filed a Request for Dismissal Without Prejudice of their second amended complaint. Id. at 36. On June 9, 2006, the state court granted Plaintiffs' request for dismissal. Id. at 39.

On January 28, 2010, Plaintiffs filed a First Amended Complaint ("Complaint") against the City of Solana beach in this Court, asserting two claims for relief. (ECF No. 15). In the first claim for relief, Plaintiffs assert that the City Council's denial of Plaintiffs' application for a development review permit and structure development permit for one of two lots that they own was arbitrary and unreasonable, constituting a deprivation of substantive due process under the Fourteenth Amendment in violation of 42 U.S.C. § 1983. In the second claim for relief, Plaintiffs assert that they were treated differently from similarly situated persons when the City Council denied their permit,constituting a deprivation of equal protection under the Fourteenth Amendment in violation of 42 U.S.C. § 1983.

On April 29, 2011, Defendant filed a Motion for Summary Judgment or in the Alternative Summary Adjudication of Issues. (ECF No. 32). Plaintiffs filed no opposition. On July 26, 2011, the Court granted the Motion for Summary Judgment. (ECF No. 36).

On January 24, 2012, Plaintiff Andrew Contasti filed a Motion for Relief from Judgment on the grounds that Plaintiffs' attorney had fallen seriously ill and failed to inform them that a Motion for Summary Judgment had been filed by Defendant.(ECF No. 45). On February 2, 2012, Defendant filed a response to the Motion for Relief. (ECF No. 47). On May 11, 2012, Plaintiffs Annette Contasti and Joe Hernandez filed Notices of Joinder in the Motion for Relief from Judgment. (ECF Nos. 52, 54).

On July 9, 2012, the Court granted Plaintiffs' Motion for Relief from Judgment and vacated the July 26, 2011 Order granting the Motion for Summary Judgment. (ECF No. 61).

On August 6, 2012, Plaintiffs filed a Response to the Motion for Summary Judgment. (ECF No. 64). On August 13, 2012, Defendant filed a reply. (ECF No. 70).

FACTS

Plaintiffs Andrew Contasti, Annette Contasti and Joe Hernandez own two adjacent lots, Lot 9 and Lot 10, located at 360 North Granados Avenue in the City of Solana Beach. Plaintiffs applied for development review permits and structure development permits to build a home on each lot. On July 11, 2007, the City Council approved Plaintiffs' permit application for the Lot 9 home, on the condition that Plaintiffs reduce the 4,031 square foot design by 230 square feet. Plaintiffs agreed to the reduction of the Lot 9 home and submitted revised drawings after the hearing which were approved by the City Council. The hearing was continued to August 22, 2007 to discuss the permit application for the Lot 10 home, which was designed to be 4,387 square feet. After the July 11, 2007 hearing, Plaintiffs submitted revised drawings which reduced the size of the Lot 10 home by 258.25 square feet. On August 22, 2007, the hearing was continued to September 19, 2007. On September 19, 2007, the City Council denied Plaintiffs' permit application for the original 4,387 square foot design of the Lot 10 home.

On October 10, 2007, the City Council issued City Resolution 2007-125, which formally denied the permit application for Lot 10. The Resolution 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. Adverse effects upon neighboring properties have been identified from this development...." 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."

Plaintiffs submit the declaration of Plaintiff Andrew Contasti, who states: In March 2007, the Solana Beach Civic and Historical Society sought to halt demolition of the church building located on Lots 9 and 10 in the hope of obtaining a historical designation for the church building. ... At the April 11, 2007 meeting, I learned that the Mayor and all of the other members of the City Council were, in fact, members of the Historical Society. I also learned that two of the five City Council members at the time lived in the same area in which my property was located. Indeed, Councilmember Mike Nichols recused himself from the discussion because he lived across the street and within 500 feet of Lots 9 and 10. Furthermore, then-mayor, Lesa Heebner, stated at the hearing that she "lived very close to this area" and that she was "very interested in saving this building" because she "love[d] this building." Also at the April 11, 2007 meeting, the Mayor and Councilmember David Roberts admitted that each of them had spoken with the prior City Manager about the City possible purchasing the property for a community center, but were advised by the City Manager that the previous price (of $1.4 million) was too expensive and that there was not enough "in the City coffers" to purchase the property. ...

On July 11, 2007, the Solana Beach City Council held a hearing, which I attended, in which the permit application for Lot 9 was approved (with a slight reduction of 230 feet in square footage initiated by us after the City Council began discussing Ordinance No. 357, even though it did not apply to Lot 9). The findings of this hearing are set forth in Solana Beach Resolution No. 2007-108, and were consistent with the City's Staff Report dated July 11, 2007 (Exhibit 4 to the RJN). ...

Yet even though the plans for Lot 10 were developed in conjunction with the plans for Lot 9 and were in all respects fundamentally the same, and even though the city staff had recommended approval of both applications and Ordinance No. 357 did not apply to either application, the City Council refused to approve the Lot 10 application during the July 11, 2007 hearing (even though it had just approved the Lot 9 application at the same hearing).

The City Council kept referencing Ordinance No. 357 and the "spirit" of the ordinance even though it did not apply to my properties. The City Council told me I had "one bite at the apple." The Mayor told me I would not be allowed to make a "back-room" adjustment to the square footage of the home proposed for Lot 10. She also threatened that I could go forward with my application but that if it was denied (as I certainly believed it would given the tenor of her remarks), I would have to "go to the back of the line" and reapply (and thus be subject to the provisions of Ordinance No. 357, even though my original application was exempt from the Ordinance). And while I understood the City Council to be asking for a reduction in square footage for Lot 10 like that which we had voluntarily given for Lot 9 ..., this time it refused to give any guidance about the amount of square footage it wanted reduced. Instead, the City Council told me to "take your best shot" at changing the plans. As with the other City Council meetings, I was only given three minutes to speak to address the Council's concerns. ...

At the September 19, 2007 hearing, the City then denied the Lot 10 home application, finding that the residence was now "incompatible with other nearby development" and that "adverse effects upon neighboring properties have been identified from this development." ...

I investigated whether the City had approved any other new homes in the immediate vicinity of Lots 9 and 10 and found approvals for homes located at 140 South Granados (4,209 square feet), 142 South Granados (4,209 square feet), and 146 South Granados (4,263 square feet). These homes were approved in 2006, the year before our applications, and ...


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