Nicholas Honchariw v. County of Stanislaus ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 22 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS HONCHARIW, Trustee, No. 16-17256
Honchariw Family Trust,
D.C. No.
Plaintiff-Appellant, 1:16-cv-01183-LJO-BAM
v.
MEMORANDUM*
COUNTY OF STANISLAUS and
BOARD OF SUPERVISORS OF
COUNTY OF STANISLAUS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Argued and Submitted February 15, 2018
San Francisco, California
Before: SCHROEDER, TORRUELLA,** and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Juan R. Torruella, United States Circuit Judge for the
First Circuit, sitting by designation.
Plaintiff-Appellant Nicholas Honchariw appeals the district court’s order
dismissing his federal takings and due process claims. Our appellate jurisdiction
rests on 28 U.S.C. § 1291, and we AFFIRM.
After unsuccessfully seeking administrative approval of his proposed
subdivision in 2009, Honchariw brought a mandamus action in state court and
obtained a favorable ruling from the California Court of Appeal in 2011. See
Honchariw v. Cty. of Stanislaus, 200 Cal. App. 4th 1066 (Ct. App. 2011). He
obtained administrative approval in 2012, and subsequently filed a new state court
action for inverse condemnation that the Court of Appeal held was time barred.
See Honchariw v. Cty. of Stanislaus, 238 Cal. App. 4th 1, 15 (Ct. App. 2015).
Honchariw then sought relief in federal court. He now appeals the dismissal
of his federal § 1983 action claiming damages for a regulatory taking and denial of
due process in connection with the original 2009 administrative denial. The
district court dismissed the takings claim on the ground that Honchariw failed to
exhaust state remedies by failing to timely pursue his remedies under state law, as
the Court of Appeal had ruled. The district court dismissed his due process claim
because it accrued upon the 2009 denial and was not filed within the two-year
statute of limitations.
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On appeal, the thrust of Honchariw’s argument is that neither claim ripened
until the 2012 approval. But the challenged deprivation of use of the property took
place in 2009 with the permit denial, and thus his grievances all stem from that
action. See TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (“[A] claim
accrues when the plaintiff knows or has reason to know of the injury which is the
basis of the action.”).
A regulatory takings claim is not ripe for review in federal court until the
plaintiff has sought “compensation through the procedures the State has provided
for doing so.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 194 (1985). A plaintiff who fails to bring his state
claim in compliance with the applicable statute of limitations thus forfeits his
federal claim as well. See Daniel v. Cty. of Santa Barbara, 288 F.3d 375, 382 (9th
Cir. 2002). Because Honchariw’s inverse condemnation action was untimely
under state law, Honchariw, 238 Cal. App. 4th at 15, he is now barred from
pursuing a federal takings claim.
There is a limited exception to the exhaustion requirement where state
remedies are either unavailable or inadequate. Williamson Cty., 473 U.S. at 196-
97. Honchariw contends that applying the governing 90-day state limitations
period to his takings claim foreclosed any available state court remedies because he
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did not have a ripe inverse condemnation action until his subdivision was approved
in 2012. But, as the California Court of Appeal explained, Honchariw could have
timely brought his inverse condemnation action as part of his mandamus petition
within 90 days of the 2009 decision. Honchariw, 238 Cal. App. 4th at 14-15. The
cases on which Honchariw relies recognize that claims based on regulatory denials
of property use accrue when there has been a final administrative decision under
state law as to the claimed denials. See Williamson Cty., 473 U.S. at 186; Norco
Constr., Inc. v. King Cty., 801 F.2d 1143, 1145 (9th Cir. 1986). That final decision
here was the Board’s 2009 denial, not its 2012 approval. Indeed if an owner had to
wait for a favorable result he might never be able to challenge a denial as a
violation of federal rights.
Moreover, the California Court of Appeal’s 2015 decision observed that
even if the inverse condemnation claim did not ripen until the Board’s 2012
approval, Honchariw did not file his inverse condemnation claim until after the 90-
day limitation period had expired. See Honchariw, 238 Cal. App. 4th at 15. The
district court thus correctly held that there was a failure to exhaust state law
remedies.
The district court also correctly determined that Honchariw’s federal due
process claim is time barred. Honchariw’s claim accrued when his application was
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denied in 2009. Further proceedings vindicating Honchariw’s rights could not
have led to the due process violation—if anything, they eliminated the violation.
Accordingly, Honchariw’s claim was untimely under the applicable two-year
statute of limitations. See Action Apartment Ass’n, Inc. v. Santa Monica Rent
Control Bd., 509 F.3d 1020, 1026 (9th Cir. 2007) (“It is well-established that
claims brought under § 1983 borrow the forum state’s statute of limitations for
personal injury claims, and in California, that limitations period is two years.”)
(internal citations omitted).
AFFIRMED.
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