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Contasti v. City of Solana Beach

United States District Court, Ninth Circuit

October 22, 2013

ANDREW CONTASTI, an individual; ANNETTE CONTASTI, an individual; and JOE HERNANDEZ, an individual, Plaintiffs,
v.
CITY OF SOLANA BEACH, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Defendant's Motion in Limine to Preclude Evidence, Testimony or Argument Relating to Violation of Substantive Due Process (ECF No. 108).

BACKGROUND FACTS

On January 28, 2010, Plaintiffs filed the First Amended Complaint ("Complaint"), alleging two claims for relief against Defendant City of Solana Beach based upon the decision of the City Council to deny Plaintiffs' application for a development review permit for Lot 10 located at 360 North Granados Avenue in the City of Solana Beach. (ECF No. 15). In the first claim, Plaintiffs assert that the denial of the development review permit was arbitrary and unreasonable, constituting a deprivation of due process in violation of 42 U.S.C. § 1983. In the second claim, Plaintiffs assert that they were treated differently from similarly situated persons when the City Council denied their permit for Lot 10, constituting a deprivation of equal protection in violation of 42 U.S.C. § 1983.

On April 29, 2011, Defendant City of Solana Beach filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues ("Motion for Summary Judgment"). (ECF No. 32). Defendant argued that the Court should grant summary judgment in its favor on Plaintiff's substantive due process claim because "plaintiffs failed to file a writ of mandate [in a previous state court action], [and] their claim... is barred by the doctrines of res judicata and collateral estoppel. Id. at 5. Defendant argued that the Court should grant summary judgment on Plaintiff's equal protection claim "because [the claim] has been adjudicated, and because the City's decision was rationally related to a permissible state objective." Id.

On July 26, 2011, the Court issued an Order granting the Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues. (ECF No. 36). With regard to the due process claim, the Court stated: "Plaintiffs did not file an opposition to the motion for summary judgment, despite an opportunity to do so. Plaintiffs have not shown that there are genuine issues for trial that preclude summary judgment." Id. at 6. The Court concluded that the claim for violation of due process was barred. With regard to the equal protection claim, the Court found "that Defendant has carried its burden pursuant to Rule 56 and Plaintiffs have not shown that there are genuine issues for trial that preclude summary judgment." Id. at 7.

On July 27, 2011, the Clerk of the Court issued a Judgment against Plaintiffs Andrew Contasti, Annette Contasti, and Joe Hernandez. (ECF No. 37).

On January 24, 2012, Plaintiff Andrew Contasti filed a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b). (ECF No. 45).

On July 9, 2012, the Court issued an Order granting the Motion for Relief from Judgment finding that Plaintiffs had demonstrated excusable neglect and extraordinary circumstances sufficient to warrant relief. (ECF No. 61). On August 6, 2012, Plaintiffs filed an opposition to Defendant's Motion for Summary Judgment. (ECF No. 69). Plaintiffs argued that they were not precluded from bringing their due process claim in this Court "because Plaintiffs' § 1983 claim for violation of their right to Substantive Due Process is different from Plaintiffs' application for a permit which was denied by the City Council in the underlying administrative proceeding." Id. at 13. With respect to the equal protection claim, Plaintiffs argued that a triable issue of fact existed "because the claim has not already been adjudicated and the city unjustifiably treated Plaintiffs differently." Id. at 17. On August 13, 2012, Defendant filed a reply in support of the Motion for Summary Judgment. (ECF No. 70).

On September 18, 2012, the Court denied Defendant's Motion for Summary Judgment in its entirety. (ECF No. 71). With respect to Plaintiff's substantive due process claim, the Court concluded that "the preclusive effect of the City Council's decision does not extend to the substantive due process claim presented in this federal action." Id. at 10. With respect to Plaintiffs' equal protection claim, the Court concluded that "there is a triable issue of fact as to whether the Defendant's alleged justification for denying Plaintiff's application was based on an improper motive' and served as a pretext for differential treatment.'" Id. at 16 (citation omitted).

On May 24, 2013, the Court issued an Order denying Defendant's Motion for Leave to File Second Summary Judgment Motion on the grounds that a second summary judgment based upon an expanded factual record was not appropriate. (ECF No. 96).

The parties subsequently filed motions in limine and on September 6, 2013, the Court held a hearing on the motions in limine. (ECF No. 139).

CONTENTIONS OF THE PARTIES

Defendant contends that, as a matter of law, Plaintiffs were not deprived of a constitutionally protected property interest when the City Council denied their application for a development review permit. (ECF No. 108 at 2). Defendant contends that Plaintiffs should be precluded from presenting evidence, testimony or argument relating to a violation of either substantive or procedural due process. Id. at 1. Defendant asserts that: "The permit at issue in this case is not the objective, structure development permit, but the discretionary development review permit. " Id. at 3. Defendant asserts that the development review permit for Lot 10 was denied "because it did not comply with the special discretionary development criteria as set forth in [SMBC] Section 17.68.040.F." Id. at 4. Defendant contends that the denial of the development review permit based upon discretionary considerations cannot form the basis for a property interest. Id. at 7. Because Plaintiffs cannot establish that they had a property interest in the special discretionary permit, Defendant contends that Plaintiffs cannot establish a constitutional violation. Id. at 7-8.[1]

Plaintiffs agree that the due process claim requires that a state actor deprived them of a constitutionally protected life, liberty or property interest. (ECF No. 126 at 4). Plaintiffs contend that Defendant "is wrong on its central legal argument, which is that there can be no protected property interest, and therefore no substantive due process violation, simply because the City had the right to exercise discretion in the permitting process." Id. at 5. Plaintiffs assert that typical land use disputes involving alleged procedural irregularities, violations of state law, and unfairness ordinarily do not implicate substantive due process, but that a due process violation is established by the arbitrary or irrational conduct taken in this case. Id. at 13. Plaintiffs further contend that they are able to demonstrate the violation of a "vested property right, " on the grounds that Defendant denied their permit for noncompliance with Ordinance 357, not yet in effect of the date the application was "deemed complete" in violation of Cal. Govt.Code § 66474.2(a). Id. at 15.

UNDISPUTED FACTS

Plaintiffs Andrew Contasti, Annette Contasti, and Joe Hernandez owned two adjacent lots, Lot 9 and Lot 10, located at 360 North Granados Avenue in the City of Solana Beach. In February 2007, Plaintiffs submitted applications to build homes on two lots that they owned in the City of Solana Beach, Lots 9 and 10. Plaintiffs submitted two applications to the City of Solana Beach for two permits for each lot: (1) a development review permit; and (2) a structure development permit.

On July 11, 2007, the City Council held a hearing and approved Plaintiffs' permit application for Lot 9 finding that no adverse effects upon neighboring properties have been identified. Plaintiffs agreed to reduce the 4, 031 square footage home proposed for Lot 9 by 230 square feet and submitted revised drawings after the hearing, which were approved by the City Council.

The hearing was continued to August 22, 2007 to consider 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 4, 387 square foot design of the Lot 10 home.

On October 10, 2007, the City Council issued Resolution 2007-125, which formally denied the permit application for Lot 10. The City Council resolution found that the proposed Lot 10 development " does not comply with the following development criteria as set forth in Solana Beach Municipal Code Section 17.68.040.F:"

a. Relationship with Adjacent Land Uses - The proposed single family residence is designed in a manner that is incompatible with other nearby development because it is not compatible with existing or potential future single family development. Adverse effects upon neighboring properties have been identified from this development. An analysis of the development characteristics of nearby residences was completed to compare the proposed residence with nearby residential development. The area analyzed included lots within the same LMRd Zone that are located on the east side of North Granados and the west side of Glenmont Avenue southward to El Viento and northward approximately half way to Lynnwood Avenue. The average lot size in the area analyzed is approximately 8, 500 square feet and ranges from 8, 300 to 16, 600 square feet. The average total floor area of structures is approximately 1, 700 square feet and ranges from 947 to 3, 721 square feet. The proposed 4, 387 square foot (3, 987 gross square foot) residence is approximately 2, 700 square feet larger than the average existing residences. The maximum size of future development, which would be subject to Ordinance 357, would be approximately 3, 600 gross square feet. The proposed residence is approximately 387 square feet larger than the maximum size of future residences in the area analyzed.
b. Building and Structure Placement - 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 ...

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