Andrew Contasti v. City of Solano Beach , 644 F. App'x 743 ( 2016 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    MAR 09 2016
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ANDREW CONTASTI; et al.,                         No. 14-55197
    Plaintiffs - Appellants,           D.C. No. 3:09-cv-01371-WQH-
    BLM
    v.
    CITY OF SOLANO BEACH,                            MEMORANDUM*
    Defendant - Appellee.
    Appeal from the United States District Court
    for the Southern District of California
    William Q. Hayes, District Judge, Presiding
    Submitted February 11, 2016**
    Pasadena, California
    Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
    Plaintiffs Andrew Contasti, Annette Contasti, and Joe Hernandez appeal
    from the district court’s entry of judgment in favor of the defendant City of Solana
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Beach. We have jurisdiction under 
    28 U.S.C. § 1291
    . We affirm in part, vacate in
    part, and remand for further proceedings.
    I. Due Process
    The district court granted the defendant’s motions in limine to preclude
    evidence, testimony, or argument relating to the plaintiffs’ procedural and
    substantive due process claims. It entered judgment in favor of the defendant on
    these claims. We affirm the judgment as to the due process claims.
    To obtain relief on a procedural due process claim, even assuming the
    existence of a property interest at stake, the plaintiffs must establish a “lack of
    process.” Shanks v. Dressel, 
    540 F.3d 1082
    , 1090 (9th Cir. 2008) (quoting
    Portman v. Cnty. of Santa Clara, 
    995 F.2d 898
    , 904 (9th Cir. 1993)). Here, the
    defendant provided notice of its intent to consider the relevant permit applications,
    held a public hearing on the applications, and issued a formal resolution denying
    the applications for Lot 10. Thus, plaintiffs’ procedural due process claim fails as a
    matter of law.
    To obtain relief on a substantive due process claim, assuming the existence
    of a cognizable property interest, the plaintiff must show that the government’s
    conduct “fail[ed] to advance any legitimate government purpose.” Shanks, 
    540 F.3d at 1088
    . Contasti has failed to meet that burden here. The resolution denying
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    the Lot 10 application provided a rational explanation for denial of the permit. It
    stated that the proposed structure would have been “incompatible with other
    nearby development” based on its square footage, particularly taking into account
    the impact of Ordinance 357 on future developments. The decision was not,
    therefore, “an ‘abuse of power’ lacking any ‘reasonable justification in the service
    of a legitimate governmental objective.’” 
    Id.
     (quoting Cnty. of Sacramento v.
    Lewis, 
    523 U.S. 833
    , 846 (1998)). The substantive due process claim consequently
    fails as a matter of law.
    II. Equal Protection
    The district court also granted the defendant’s motion in limine to preclude
    evidence, testimony, or argument relating to plaintiffs’ equal protection class-of-
    one claim. It entered judgment in favor of the defendant on the equal protection
    claim. We vacate the judgment in this respect and remand for further proceedings.
    The district court concluded that the equal protection claim failed as a matter
    of law based on Towery v. Brewer, 
    672 F.3d 650
     (9th Cir. 2012). In Towery, this
    Court wrote that “[t]he class-of-one doctrine does not apply to forms of state action
    that ‘by their nature involve discretionary decisionmaking based on a vast array of
    subjective, individualized assessments.’” 
    Id. at 660
     (quoting Engquist v. Oregon
    Dep’t of Agric., 
    553 U.S. 591
    , 603 (2008)). However, in Towery we went on to
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    note that the class-of-one theory is inapplicable only “[a]bsent any pattern of
    generally exercising the discretion in a particular manner while treating one
    individual differently and detrimentally.” 
    Id.
     at 660–61.
    Here, the plaintiffs have stated a viable class-of-one claim based on the
    defendant’s treatment of permit applications for other projects. According to a
    declaration submitted by one of the plaintiffs, in the year before they applied for
    permits, the defendant approved other developments on the same street as the
    proposed Lot 10 development. These developments ranged in size from 4,209
    square feet to 4,263 square feet. The proposed development for Lot 10 was 4,387
    square feet in size, and the defendant rejected the permit applications for Lot 10
    solely because it concluded that the proposed development was too large. The
    proposed Lot 10 development was only 3 or 4 percent larger than the other
    developments that the defendant had recently approved on the same street. These
    facts support an inference that the defendant treated the plaintiffs “differently and
    detrimentally” when compared with other permit applicants. Thus, Towery does
    not preclude trial of their class-of-one claim.
    Each party shall bear their own costs on appeal.
    AFFIRMED IN PART, VACATED IN PART; REMANDED FOR
    FURTHER PROCEEDINGS.
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