Village Communities, LLC v. County of San Diego

Opinion

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‘ _ UNITED STATES DISTRICT COURT VILLAGE COMMUNITIES, LLC, Case No.: 3:20-cv-01896-BEN-DEB Mainutt ORDER GRANTING-IN-PART _ v. DEFENDANTS’ MOTION TO || COUNTY OF SAN DIEGO; and BOARD| + D/SMISS or SANDIEGO OF THE COUNTY [E CF No. 5] □ Defendants. Plaintiff Village Communities, LLC (“Village Communities”) is suing Defendants the County of San Diego (the “County”) and the San Diego County Board of Supervisors (the “Board”) (collectively, “Defendants”) for claims arising from the denial of development permits. The matter comes before the Court on Defendants’ Motion to Dismiss the First Amendment Complaint, ECF No. 4 (“FAC”). ECF No. 5. As set forth below, the Motion is granted-in-part. BACKGROUND! Village Communities is a real estate development entity that owns approximately . ! The following overview of the facts is drawn from Village Communities’ FAC, ECF No. 4, which the Court assumes true in analyzing Defendants’ Motion to Dismiss. Erickson y. Pardus, 551 U.S. 89, 94 (2007). The Court is not making factual findings.

acres of land in an unincorporated area of San Diego County, California (the “Property”). FAC, ECF No. 4, □ 1. The Property is. located just east of Interstate 15 and south of West Lilac Road, approximately ten miles north of the City of Escondido. /d. at 28. Village Communities purchased the property in 2017 from another developer that unsuccessfully tried to develop the Property into approximately 1,750 homes, with an associated school, commercial, and retail facilities. /d. at {| 33,47. After acquiring the Property, Village Communities substantially revised the proposed project, working with Defendants’ Planning Department staff to address various concerns about its scope. Id. at 47-52. Nonetheless, Village Communities alleges the Planning Department staff was not satisfied with its efforts to reform the project and recommended the Board deny approval. Jd. at J] 94-100. On June 20, 2020, the Board formally voted to deny the project, and Village Communities filed suit. Id. | Fundamentally, this case involves concern (or lack thereof) about wildfires. The Property sought to be developed is in a high risk area for these disasters. FAC at □□□□ Village Communities argues that through its work with Planning Department staff, it revised the project to mitigate the risk down to acceptable levels consistent with the County’s General Plan, a master zoning document that governs all future development ) within the County’s boundaries, Id. at §§, 54. Despite these substantial revisions, Village Communities alleges Defendants denied the permit only after Village Communities refused to meet an unconstitutional condition, namely—purchasing “fuel modification }easements” from 50 adj acent land owners. Jd. at { 102. oe A fuel modification easement grants the easement holder the right to enter property control vegetation on the portion of the property subject to the easement. FAC at In the context of wildfires, the permitted entry typically involves destroying and removing vegetation that serves as the “fuel” for fires, which can help stop a fire’s spread across a roadway, like West Lilac Road. /d. Defendants allegedly required Village Communities to obtain these easements from the individual property owners as a condition for approving the development. /d. at { 100. 9. □

Village Communities argues Defendants’ unconstitutionally required Villages Communities to obtain the easements because (1) the County already has the legal. authority the easements supposedly convey, (2) other similar projects have not been 4 subject to the same requirement, and (3) Defendants’ actions were arbitrary and capricious. Village Communities asserts five claims for relief. FAC at J 107-136. Claims . one through four allege violations of 42 U.S.C. § 1983, while claim five seeks administrative mandamus pursuant to California Civil Procedure Code section □□□□□□□ Defendants move to dismiss each of the claims with prejudice. See Mot., ECF No. 5. LEGALSTANDARD _

1] dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or absence of sufficient facts to support a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 729, 732 (9th Cir. 2001). When considering a Rule 12(b)(6) motion, the Court “accept[s] as true facts alleged and draws] inferences from them in the light most favorable to the plaintiff.” Stacy v. Rederite Otto Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). A plaintiff must not merely allege conceivably unlawful conduct but must j allege “enough facts to state a claim to relief that is plausible on‘its face.” Bell Atl. Corp. lly. Twombly, 550 U.S. 544, 570 (2007). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Zixiang Li v. Kerry, 710 F.3d 995, 999 Cir, 2013) (quoting Ashcroft v. Igbal, 556 U.S. 662, 678 (2009))..“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Ifa court dismisses a complaint, it may grant‘ leave to amend unless “the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).

| ||. ANALYSIS Village Communities’ first four claims allege violations of 42 U.S.C. § 1983 (“Section 1983”), which prohibits state actors from depriving a plaintiff of the “rights, privileges or immunities secured by the Constitution.” To prevail on a Section 1983 }\claim, a plaintiff must show that “(1) acts by the defendants (2) under color of state law depriv[ed] [it] of federal rights, privileges or immunities [and] (4) caused [it] damage.” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 1284 (9th Cir. 11994)). Section 1983 “is not itself a source of substantive rights, but merely provides a imethod for vindicating federal rights elsewhere conferred.” Id. (citations omitted). Accordingly, each of Village Communities’ Section 1983 claims must plausibly allege the deprivation of a right protected by the Constitution or laws of the United States. As noted above, Defendants move to dismiss each claim. A. Takings Clause Claims (Claims I and 2) Village Communities’ first and second claims brought pursuant to Section 1983 allege violations of its rights under the Fifth Amendment’ Takings Clause through (1) inverse condemnation and (2)a temporary taking. FAC, J] 107-117. Village ) Communities argues Defendants committed a taking without just compensation by . ) denying its proposed development project “solely because Village Communities refused to accede to the County’s unconstitutional condition to secure 50 off-site roadway easements, at a substantial cost, to establish and maintain a 20-foot ‘fuel modification zone’ for fire clearing purposes.” Opp’n, ECF No. 8, 9. Defendants argue the FAC fails to state claims for relief because (1) “the County’s failure to enact legislation is not a i taking,” (2) the unconstitutional conditions doctrine does not apply to legislative enactments, and (3) there is no taking because Defendants did not require Village Communities to give up any property. Reply, ECF No. 11, 1-5. a7 The Fifth Amendment prohibits the government from taking private property for public use without just compensation. Additionally, “[u]nder the well-settled doctrine of

‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right ... in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit.” Dolan _ 4 City of Tigard, 512 U.S. 374, 385 (1994). “In evaluating [a plaintiffs claim, the Court] must first determine whether the ‘essential nexus’ exists between the ‘legitimate state interest’ and the permit condition exacted by the [government entity].” Jd. at 386, (quoting Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987)). The Supreme Court described this “essential nexus” as a “rough proportionality” between the exaction demanded by the government entity and the “nature and extent to the impact of the proposed development.” Jd. at 391, . 1] In 2013, the Supreme Court clarified that the unconstitutional conditions doctrine || does not depend “on whether the government approves a permit on the condition that the | applicant turn over property or denies a permit because the applicant fails todoso.” Koontz v. St. Johns River Water Management District, 570 U.S. 595, 606 (2013). □□□ Court further confirmed “that the government’s demand for property from a land-use permit applicant must satisfy the requirements of No/lan and Dolan even when. . . its demand is for money.” Id. at 619. Reading these authorities together, an. unconstitutional conditions claim may arise if the government demands an exaction of money that is not roughly proportional to the nature and extent of the development as a condition of permit approval. . Here, Village Communities alleges Defendants conditioned approval of its proposed development on agreeing to the purchase of fifty fuel modification easements. FAC, 10. Village Communities argues acquiring these easements would only come ata “substantial cost” because it was essentially required to purchase these easements from of the fifty landowners surrounding the Property in order to obtain approval for the project. at §/9, Village Communities also plausibly alleges Defendants did not need those easements because the County Consolidated Fire Code already provided Defendants the authority to take the actions the easements would provide: destroying and 45

□ clearing vegetation near a public roadway to prevent the spread of a wildfire. Jd. These \allegations plausibly state prima facie inverse condemnation and temporary takings || claims based on the unconstitutional conditions doctrine. | Defendants’ arguments concerning legislative enactments may be persuasive at later phases of the litigation. Village Communities will also have to prove the casual jrelationship between the alleged unconstitutional condition and the Board’s decision, not the Planning Department staff's recommendation. However, “accept[ing] as true facts alleged and draw[ing] inferences from them in the light most favorable to the plaintiff,” the Court finds Village Communities has plausibly stated claims for relief invoking the Takings Clause. Stacy, 609 F.3d at 1035. Accordingly, the Court denies Defendants’ Motion to Dismiss these claims, B. Due Process Claim (Claim 4) ‘Village Communities next argues Defendants violated its rights under the Due Process Clause of the Fourteenth Amendment by arbitrarily and unreasonably denying its development application. FAC, ECF No. 4, 4125-26. Defendants argue that legislative immunity shields them from this claim, because approving Village Communities’ permits “required two legislative acts—amending the County’s General Plan and its zoning ordinance.” Reply, ECF No. 11, 6 (citing Thornton v. City of St. Helens, 425 F.3d 1158, ) 1163 (9th Cir. 2005)). The Due Process Clause of the Fourteenth Amendment provides: “No State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause “provides heightened protection against government interference with certain fundamental rights and liberty linterests.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Violations of rights protected by the Due Process Clause may be either substantive or procedural. To maintain a substantive due process claim, a plaintiff must show (1) a governmental restriction on a liberty that (2) lacked a rational relationship to a government interest. N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 485 (9th Cir. 2008). Thus, in the context

of this case, “a challenge to land use regulation may state a substantive due process \claim, so long as the regulation serves no legitimate government purpose.” N. Pacifica LLIC v. City of Pacifica, 526 F.3d 478, 484 (9th Cir. 2008). A regulation serves no legitimate government purpose where a “land use action lacks any substantial relation to the public health, safety, or general welfare.” Jd. (quoting Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 856 (9th Cir. 2007)). Here, Village Communities alleges Defendants imposed a requirement that it obtain useless fuel modification easements as a condition precedent to approval of the proposed development. FAC, ECF No. 4, 76. Village Communities reasons these }easements lack any relationship to the public health, safety, or general welfare because Defendants already have the authority to do the action the easements supposedly allow— destroy and remove vegetation on the Property that would be subject to the easement. Because this condition for project approval is allegedly needless and redundant of existing authority, it “serves no legitimate government purpose.” N. Pacific LLC, 526 F.3d at 484. . Without deciding the issue, the Court concludes Village Communities has plausibly alleged a substantive due process claim. Moreover, it finds Defendants’ arguments unpersuasive. In North Pacifica, the Ninth Circuit analyzed whether the allegedly wrongful behavior of failing to timely process land use permits could support a substantive due process claim. Jd. at 485. That court concluded the defendant city council had legitimate reasons for delaying the permit applications and affirmed dismissal of the substantive due process claim. /d. Notably, however, the court reached merits of that question and did not rely on a grant of legislative immunity. /d. Moving forward, Village Communities retains the burden of proving particular conduct violated its substantive due process rights and Defendants remain free to advance legislative immunity arguments for particular Defendants and particular actions. Here, however, the FAC plausibly alleges Defendants denied the development application for reasons unrelated to public health, safety, or general welfare. Accordingly, the Court

1-|| denies Defendants’ Motion to Dismiss this claim as well. C. Equal Protection Claim (Claim 3) Village Communities next alleges Defendants violated its rights under the Equal Protection Clause of the Fourteenth Amendment by imposing a condition for development on Village Communities that Defendants did not impose on other, similarly situated development proposals during the same time frame. FAC, { 120. Defendants argue their decision to deny permitting was discretionary, precluding an equal protection □ iclaim, and also benefits from legislative immunity. Reply, ECF No. 11, 6-7. The Equal Protection Clause of the Fourteenth Amendment provides: “No □□□□□ ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. ] Const. amend. XIV, § 1. “When an equal protection claim is premised on unique treatment rather than on a classification, the Supreme Court has described it as a ‘class of | one’ action.” N. Pacifica LLC, 526 F.3d at 486 (citing Village of Willowbrook v. Olech, (14 |/528 U.S. 562, 564 (2000) (per curiam)). To support such a claim, Village Communities must allege the government treated it “differently from others similarly situated.” Id. The discriminatory treatment must be “intentionally directed” at the plaintiff, as opposed being an accident or random act.” Jd. (citations omitted). Here, Village Communities has plausibly pled these allegations, It alleges Defendants imposed the fuel modification.easement condition only on its proposed development and not on “other similarly situated properties and projects in the County at or about the same time frame.” FAC, 120, The FAC even lists several projects, providing Defendants additional notice of the nature of Village Communities’ claim. Jd. As discussed above, Village Communities alleges the fuel modification easement condition is an unconstitutional condition, and by imposing the condition Defendants are treating Village Communities “differently from others similarly situated.” N. Pacifica, F.3d at 486. Therefore, the Court finds this claim is also facially plausible, and denies Defendants’ Motion to Dismiss this claim. See Zixiang Li, 710 F.3d at 999. Q :

D. Administrative Mandamus (Claim 5) Village Communities’ final claim seeks Administrative Mandamus. FAC, ECF No. 4, 129-136. It asks the Court to issue “an alternative or peremptory writ of mandate commanding Defendants to vacate and set aside its decision to deny the Project > ||and take steps necessary to right the wrong imposed on Village Communities.” Id. at J 1 140. Village Communities also argues that in light of the Supreme Court’s decision in Knick v. Township of Scott, 139 §. Ct. 2162 (2019), it no longer needs to pursue a mandate claim as a condition precedent to a federal Takings Clause claim. Opp’n, ECF 8, 17. Defendants argue the claim should be dismissed because the Court cannot || grant the relief Village Communities requests. Mot., ECF No. 5,9-10. | I] The Supreme Court recently held that “because a taking without compensation □ violates the self-executing Fifth Amendment at the time of the taking, the property owner bring a federal suit at that time.” Knick, 139 S. Ct. at 2172. Here, Village Communities alleges the unconstitutional condition is the taking, which accrued on the date the Board denied its development application. Accordingly, the Court finds the alleged taking has already occurred, and in accordance with Knick, Village Communities can now bring a Takings Clause claim without separately pursuing mandamus relief. Moreover, the Court agrees with Defendants that the requested mandamus relief asks the ) Court to “compel a legislative body to act in a particular way,” which raises concerns of l infringing on the separation of powers on which this country was founded. See Johanson v. City Council of Santa Cruz, 222 Cal. App. 2d 68, 72 (1963). Put simply, the Court grant Village Communities damages and other relief if it proves its § 1983 claims, but it cannot order the Board to approve this development. Accordingly, the Motion to Dismiss the fifth claim is granted. . For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED-IN- PART, ECF No. 5, as follows: -

l 1.. Defendants’ Motion to Dismiss the first through fourth claims for relief in the FAC brought pursuant to Section 1983 is DENIED. 2. Defendant’s Motion to Dismiss Plaintiff's Fifth Claim for Relief, seeking administrative mandamus is GRANTED. This claim is dismissed. 3. Plaintiff wishes to file an amended complaint, Plaintiff must request leave of this Court within fourteen (14) days of this Order. See Fed. R. Civ. P. 15 (a)(2). IT IS SO ORDERED. DATED: FebruaryZ~_, 2021 fo leecz . HON T. BE Z ] . United States District Judge

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