United States District Court, E.D. California
RICHARD J. RYAN, Plaintiff,
CITY OF LINCOLN, et al., Defendants.
December 6, 2018, the court granted the City of
Lincoln’s motion to dismiss without leave to amend,
effectively ending Ryan’s suit against the City.
See ECF No. 27. Ryan now asks the court to vacate
its order by granting leave to amend his complaint, claiming
he can allege additional facts that will support the futility
exception under the Fifth Amendment’s takings analysis.
ECF No. 32. The City opposes the motion, ECF No. 36, and Ryan
has replied, ECF No. 37. On January 25, 2019, the court heard
oral argument, then submitted the matter for resolution by
written order. After consideration, and for the reasons set
forth below, Ryan’s motion to amend is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
court in its December 6, 2018 order on the motion to dismiss
set forth the relevant facts of this case. ECF No. 27. Those
facts, in large part, are reproduced here as necessary for
the purposes of this order.
First Amended Complaint (“FAC”) alleges five
claims against the City, among other defendants, related to
defendants’ alleged taking of Ryan’s property for
public use without providing just compensation. FAC ¶
23. Two of Ryan’s claims are federal claims: Inverse
condemnation in violation of the Fifth Amendment (claim 1)
and violation of due process under the Fourteenth Amendment
(claim 2). Id. ¶¶ 23–32. The other
three claims are state claims: Making a false promise (claim
3) and two claims for intentional misrepresentation (claims 4
and 5). Id. ¶¶ 33–44. Ryan purchased
the property that is the subject of his claims - 968
Virginiatown Road, Lincoln, California - in 2001.
Id. ¶¶ 12–13. In January 2015,
Placer County issued Ryan a residential construction permit
to build his personal residence on the property. Id.
¶¶ 13–14, 17, 20. On May 6, 2015, the City
formally began annexation proceedings with respect to a large
portion of County territory to facilitate development of a
master-plan community known as the Lincoln Village 1 Specific
Plan (“Village 1 Plan”). Id. ¶ 15.
Ryan’s property sits within the territory that the City
ultimately annexed. Id. Ryan alleges he did not
receive notice from the City of the annexation until after it
become final, id. ¶ 16; he says the City
promised him, despite the annexation, that he could still
“absolutely build his house,” id. ¶
17; but the City and County then conspired to prevent him
from completing construction of his home, id. ¶
18. Further, Ryan alleges County officials informed him on
March 14, 2017, of a discrepancy involving a water well on
his property and told him that if the discrepancy was not
resolved by the residential construction permit’s
expiration date of May 5, 2017, the County would not renew
his permit. Id. ¶¶ 14, 20. Ryan did not
resolve the discrepancy and the County declined to renew his
permit. Id. ¶ 21. Finally, Ryan claims the City
has demanded he move the pad on which he will build his new
house to a new location, which is cost prohibitive.
Id. Alternatively, Ryan alleges the City has
effectively rendered his property void of all intended use by
zoning the property “Open Space” under the
Village 1 Plan. Id.
11, 2018, the City moved to dismiss Ryan’s complaint,
arguing the court lacks subject matter jurisdiction because
Ryan’s inverse condemnation claim based on the Fifth
Amendment is not ripe, and all remaining claims must also be
dismissed for lack of subject matter jurisdiction. ECF No.
12. In its December 6, 2018 order, the court agreed that
under the Fifth Amendment Ryan is required to show, among
other things, that a final regulatory determination had been
made affecting his property, or that he is excepted from
obtaining a decision because such a request would be
futile. ECF No. 27 at 5. By failing to plead facts
sufficient to support either of these requirements, the court
found it lacked subject matter jurisdiction over the claims
and granted the City’s motion to dismiss. Id.
at 13. In so doing, the court denied Ryan an opportunity to
amend, reasoning that, “granting amendment would be
futile and cause undue delay, not because Ryan is clearly
incapable of eventually curing the deficiencies in the
complaint, but because of the length of the administrative
process Ryan still must undergo to satisfy the ripeness
requirement.” Id. at 12. Ryan now seeks a
reprieve from the court’s order, claiming that
“if granted leave to amend, he could amend his
pleadings to allege that seeking a variance would be a futile
act as the variance ordinance precludes the granting of a
variance to allow a residence in open space.” ECF No.
32-1 at 2. Having considered the parties’ arguments,
the court resolves the motion here.
motion for reconsideration or relief from judgment is
appropriately brought under either Rule 59(e) or Rule 60(b)
of the Federal Rules of Civil Procedure. Fuller v. M.G.
Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) (citing
Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989)).
The motion “is treated as a motion to alter or amend
judgment under Federal Rule of Civil Procedure 59(e) if it is
filed [within the 28-day window provided by that Rule].
Otherwise, it is treated as a Rule 60(b) motion for relief
from a judgment or order.” Am. Ironworks &
Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892,
898–99 (9th Cir. 2001) (citations omitted). Because
Ryan filed his motion within 28 days of entry of judgment as
to the City, the court treats the motion as a motion for
reconsideration under Rule 59(e).
Rule 59(e), a motion for reconsideration should not be
granted, absent highly unusual circumstances, unless the
district court is presented with newly discovered evidence,
committed clear error, or if there is an intervening change
in the controlling law.” Orange St. Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation
omitted). Further, Local Rule 230(j) requires that a motion
for reconsideration state “what new or different facts
or circumstances are claimed to exist which did not exist or
were not shown upon such prior motion, or what other grounds
exist for the motion; and . . . why the facts or
circumstances were not shown at the time of the prior
motion.” E.D. Cal. L.R. 230(j)(3)–(4).
argues Lincoln Municipal Code (“LMC”) §
18.58.030 demonstrates that any effort to seek a variance
with the City would be futile, thus satisfying the futility
exception to the finality prong under a takings analysis. ECF
No. 32-1 at 2; see also Kinzli v. City of Santa
Cruz, 818 F.2d 1449, 1454 (9th Cir.) (internal quotation
marks and citation omitted) (“Under this [futility]
exception, the requirement of the submission of a development
plan is excused if such an application would be an idle and
futile act.”), as amended, 830 F.2d 968 (9th
Cir. 1987). LMC § 18.58.030 provides: “[T]he city
planner shall not grant a variance which is not otherwise
expressly authorized by the zoning regulation governing the
parcel of property.” Ryan argues that because his
property is zoned “open space” under the Village
1 Plan, and residential use is prohibited in an area zoned
for open space, City officials are precluded from granting a
residential-use variance under LMC § 18.58.030. ECF No.
32-1 at 2.
opposition, the City argues Ryan asserts no new facts
justifying relief and “does not assert that the City
lacks authority to grant administrative relief.” ECF
No. 36 at 4. In support, the City points to the declaration
of Matt Wheeler, Community Development Director for the City.
ECF No. 36-1. In his declaration, Wheeler avers “Ryan
has not submitted a formal development plan to the
City,” and “[s]ince Ryan no longer has a pending
permit with the County, he will need to proceed with a
re-zoning application, which includes a request to amend the
Village 1 Specific Plan and the City’s General
Plan.” Id. ¶¶ 2, 5. Wheeler also
states that any “proposed amendments and zone change
would need to be approved by both the Planning Commission and
the City Council at public hearings.” Id.
¶ 5. In reply, Ryan argues the City is injecting new
arguments, “namely that an application to rezone the
property should be required in order to exhaust
administrative remedies,” rather than addressing the
variance application issue the parties argued in the briefing
on the prior motion to dismiss. ECF No. 37 at 4.
court finds Ryan’s argument unpersuasive. Ryan does not
explain why the availability of an administrative
determination through a rezoning application, rather than a
variance application, alters the court’s analysis.
Rather, it appears the application processes for rezoning and
variances are substantially similar. Compare LMC
§§ 18.54.030–040, 18.58.010– 020, ECF
No. 20 at 222–23 (explaining variance application,
hearing and review process), with City of Lincoln
Universal Application Form, ECF No. 36-1 at 5–12
(providing for rezoning request), and Wheeler Decl.
¶ 5 (“[P]roposed amendments and zone change would
need to be approved by both the Planning Commission and the
City Council at public hearings.”). Further, whether a
municipality’s action is a zoning determination or a
variance decision does not affect the pre-filing requirements
for a takings claim to be brought in federal court. Indeed,
zoning determinations lie at the heart of much takings
jurisprudence. See, e.g., Harris v. Cty. of
Riverside, 904 F.2d 497, 500 (9th Cir. 1990) (“The
linchpin of [plaintiff’s] ripeness argument, and by
implication his taking and related claims, is the rezoning of
his property.”); Eide v. Sarasota Cty., 908
F.2d 716, 727 (11th Cir. 1990) (“[W]e are not satisfied
that the consideration of [plaintiff’s] arguments . . .
establishes that the County would not grant him commercial
zoning if he applied for rezoning.”); Pace Res.,
Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1030 (3d Cir.
1987) (rezoning of plaintiff’s property “from
industrial to agricultural use cannot support a taking claim
under principles of taking analysis”). That rezoning
may have been the better path for Ryan to pursue, even though
the court did not address that option in its prior order,
merely underscores that there were a number of avenues by
which Ryan could have sought an administrative determination.
Yet, instead of availing himself of one of those options, he
chose to seek immediate relief in federal court.
the court resolves the pending motion on its merits, the
court notes that Ryan here for the first time identifies LMC
§ 18.58.030 as a basis for his futility argument.
Neither Ryan’s original complaint, ECF No. 1, his first
amended complaint, ECF No. 4, his opposition to the
City’s motion to dismiss, ECF No. 16, nor his request
for judicial notice, ECF No. 17, point to § 18.58.030
for support. Even assuming § 18.58.030 is on point, Ryan
provides no explanation regarding why he did not rely on
§ 18.58.030 before, in opposition to the City’s
motion to dismiss. While the court previously took judicial
notice of portions of the municipal code provided by the
City, see ECF Nos. 20, 27 at 3-5, it was not the
court’s responsibility to comb through the entire code
in search of provisions favorable to Ryan’s position.
See Clarke v. Tannin, Inc., 301 F.Supp. 3d 1150,
1161 (S.D. Ala. 2018) (“[T]he Court will not
manufacture or support arguments on behalf of the
litigants.”). In this respect, Ryan has not satisfied
Local Rule 230(j)(4)’s threshold requirement that he
explain “why the facts or circumstances were not shown
at the time of the prior motion.”
event, in light of the merits analysis set forth above and
the record before the court, it appears a viable framework
for Ryan to seek a final administrative determination still
exists, even if it is not the variance procedure the court
addressed in resolving the parties’ motion to dismiss;
Ryan has failed to avail himself of that framework. ...