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

May 15, 2013



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 second amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6); or, in the alternative, for an order granting judgment on the pleadings pursuant to Rule 12(c). Dckt. No. 25.*fn1 For the reasons that follow, the motion to dismiss should be granted without leave to amend.


Plaintiff alleges that he is the owner of a residence and real property near Crowley Lake

in Mono County. See 2d Am. Compl. ("SAC") ¶¶ 6, 11, Dckt. No. 23, at 2. 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. According to plaintiff, the Mono County Board of Supervisors (the "Board") approved the design of the tank at 8 feet below the existing grade. Id. ¶ 15. 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. ¶ 18. On December 17, 2012, the Board upheld the Commission's vote and gave approval for the construction and installation of the water tank. Id. ¶ 19.

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. ¶ 22. According to plaintiff, the plans the company submitted depicted the tank almost 4 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. ¶ 23. Plaintiff notified Hap Hazard, the local member of the Board, who instructed appropriate Mono County agencies to conduct an investigation. Id. ¶ 24. On December 23, 2008, the Mono County Department of Public Works notified the water company that the grading was too high and failed to comply with the approved plan, and that the elevation had to be lowered. Id. ¶ 27. The investigators recorded the elevation of the pre-existing grade to determine the correct tank elevation, id. ¶ 28, which confirmed that the design was, in fact, 3 feet higher than the approved 8 foot limit. Id. ¶ 29. 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. ¶ 29.

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. ¶ 25. At the meeting, the Commission approved a landscaping plan that called for coverage of the tank with trees that were not evergreen trees, as required by the original approved plan. Id. ¶ 26.

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. ¶¶ 31, 32. 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. ¶ 33.

On or about May 7, 2009, plaintiff requested from Mono County Counsel all documents relating to the tank project, including all permits issued. Id. ¶ 34. However, plaintiff did not receive notice of the building permit for the tank until on or about June 15, 2009. Id. ¶ 35. A few days later, Mono County Counsel notified plaintiff that the Department of Public Works had also issued a grading permit. Id. ¶ 36.

On or about June 23, 2009, plaintiff requested an appeal from the Mono County Construction Board of Appeals. Id. ¶ 38. 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 never responded to plaintiff's request for a hearing, id. ¶ 37; instead, Mono County Counsel informed plaintiff that his request was untimely. Id. ¶ 39. The same day, plaintiff requested a hearing and/or appeal from the Board of Supervisors, the Commission, and the Department of Public Works. Id. ¶ 40. Plaintiff received informal notice from the Board of Supervisors that a hearing was set for July 14, 2009, in Bridgeport, California--seventy miles from the site--and relating only to the issuance of the grading permit. Id. ¶ 41.

Plaintiff alleges that, six to nine months after the court denied his request for mandamus relief, he learned from a former Mono County Counsel that Mono County officials had met in private on July 13, 2009 to discuss the July 14, 2009 hearing. Id. ¶ 53. During that meeting, the officials agreed to deny Payne's request to modify the tank design and construction, regardless of any evidence that Payne presented at the hearing. Id. ¶ 54. The same former Mono County Counsel also told plaintiff that "Mono County was the most corrupt county he ever worked for." Id. ¶ 57. The meeting was conducted in private, no evidence was presented at the meeting, and no arguments or public comments were made. Id. ¶ 55. However, plaintiff also alleges that the former Mono County Counsel was present at the meeting and told the attendees that "Payne was right about everything he had argued." Id. ¶ 56.

Plaintiff contends he was not aware of the meeting because he was not provided with notice and he therefore would have had no way of knowing about it had the Mono County Counsel not informed him about it later. Id. ¶ 58. Plaintiff alleges that the County deliberately withheld information concerning the meeting--before, during, and after the hearing. Id. ¶ 59. According to plaintiff, the meeting made the public hearing a mere formality. Id. ¶ 60. "Payne was allowed to speak [at the hearing] but Payne was not heard nor did the Defendants consider Payne's evidence or arguments." Id.

Nevertheless, 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. ¶ 42. 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. In addition, plaintiff introduced correspondence penned by a Mono County engineer to Mono County's project head that suggested a shorter and wider tank that would not exceed the height limits. Id. ¶ 43. 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. ¶ 45. 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. ¶ 46. Based on that finding, the Board voted to uphold the grading permit as issued. Id. ¶ 48. Thereafter, plaintiff alleges, the County instructed Mono County employees, who originally sided with Payne, not to talk to him or make any efforts to remedy the issues raised by him before the July 14, 2009 hearing. Id.

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.

¶ 49. The water company has since completed the construction of the water tank. Id. ¶ 50. According to plaintiff, the height of the tank exceeds the original approved plan by approximately six feet and completely obstructs his view of Crowley Lake. Id. ¶ 51. Additionally, trees are not properly installed so as to cover the tank. Id. ¶ 52.


On July 29, 2009, plaintiff filed a petition for mandamus relief in Mono County Superior Court against defendants Mono County, the Board, and the Commission (along with other Mono County Departments not named as defendants in the present action). See Defs.' Req. for Jud. Not. ("RFJN"), Dckt. No. 25-2, at 5-13.*fn2 As part of his petition for mandamus relief, plaintiff asserted claims for violation of substantive and procedural due process under the Fourteenth Amendment, id. at 11, and requested the court stay all prior decisions/orders allowing the defendants to build a water tank that allegedly would obstruct plaintiff's view of the lake near his residential property. On September 2, 2009, after a hearing on the merits, the Mono County Superior Court denied plaintiff's petition in its entirely and entered judgment for defendants. Id., Dckt. No. 25-3, at 67-68.

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, ΒΆΒΆ 49-63; Dckt. No. 25-2, at 5-13. 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 ...

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