Frear Schmid v. County of Sonoma ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       MAY 24 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    FREAR STEPHEN SCHMID; ASTRID                    No.    21-15722
    SCHMID,
    D.C. No. 3:19-cv-00883-JD
    Plaintiffs-Appellants,
    v.                                             MEMORANDUM*
    COUNTY OF SONOMA,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    James Donato, District Judge, Presiding
    Argued and Submitted January 13, 2022
    San Francisco, California
    Before: GOULD, BENNETT, and R. NELSON, Circuit Judges.
    This appeal arises from the denial of a building permit exemption that would
    have allowed Appellants’ barn, illegally constructed without building permits,
    lawfully to remain on the land in compliance with the Sonoma County Municipal
    Code. We mention the facts only as necessary to explain our decision.
    In or around 2000, Appellants Frear and Astrid Schmid (“Schmids”)
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    constructed a barn on their property without obtaining the necessary permits. After
    the Schmids received a citation from Sonoma County for their unpermitted
    construction of the barn, they applied for an agricultural building exemption from
    the usual building permit requirements.
    Sonoma County sent an inspector to assess whether the building was being
    used for agricultural purposes. When the inspector arrived, the barn was closed, but
    the inspector noticed that it was being used to store vehicles and not for agricultural
    purposes. The Schmids objected to that assessment. The inspector offered to
    conduct a second inspection, but said he would need access to the inside of the barn.
    The Schmids did not allow this, claiming that the County could not condition its
    grant of the agricultural exemption on an inspection of the interior of their barn.
    Sonoma County then denied the Schmids’ request for an agricultural exemption.
    The Schmids brought a § 1983 claim in the district court challenging the
    denial of their permit exemption. The district court granted summary judgment for
    the County of Sonoma. The Schmids appeal, and we affirm the district court.
    Summary judgment is proper when there is no dispute as to the material facts
    of the case. Fed. R. Civ. P. 56. We consider whether, “viewing the evidence in the
    light most favorable to the nonmoving party, . . . there are any genuine issues of
    material fact and whether the district court correctly applied the relevant substantive
    law.” Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 
    330 F.3d 1110
    , 1131–
    2
    32 (9th Cir. 2003). “A predicate for any unconstitutional conditions claim is that the
    government could not have constitutionally ordered the person asserting the claim
    to do what it attempted to pressure that person into doing.” Koontz v. St. Johns River
    Water Mgmt. Dist., 
    570 U.S. 595
    , 612 (2013). Here, the Schmids contend that the
    County of Sonoma could not constitutionally order them to submit to an interior
    inspection of their barn to obtain the agricultural building exemption.
    Section 7-7(b) of the Sonoma County Municipal Code requires that a written
    application for an agricultural exemption be filed with the chief building official.
    The application must include a description of the present use of the land, a
    description of the building or structure to be exempted, and its proposed use. When
    construction of the structure is completed, an inspection must be performed by
    permit resource management division staff to ensure that the structure is complete
    and is being used for the purpose listed on the application. Sonoma County, Cal.,
    Mun. Code § 7-7(d).
    The Schmids argue that Sonoma County is violating the unconstitutional
    conditions doctrine by pressuring them to submit to an interior inspection of their
    barn before issuing an exemption in violation of their Fourth Amendment rights.
    Appellants contend that the inspection must occur after issuance of the permit or
    exemption as stated in Section 7-7(d) of the Sonoma County Municipal Code.
    3
    We reject Appellants’ argument. First, Appellants admit that the County
    could constitutionally require an inspection in connection with the building
    permitting process. Appellants simply contend that the inspection must come after
    a grant of the exemption. But under the circumstances here, the timing of the
    constitutional act does not render it unconstitutional. Also, it makes no sense to
    require the issuance of a building permit exemption before the inspection of the
    target structure or premises. Such a requirement would be the equivalent of putting
    the cart before the horse. Allowing exemptions without inspection would promote
    a lack of safety and the misuse of the building code procedures.
    Appellants constructed an unpermitted barn on their property. Section 7-7 of
    the Sonoma County Municipal Code makes clear that an application for the
    agricultural exemption should be made before the structure is constructed and placed
    on the land. Appellants objected to an inspection after the barn was constructed.
    But an inspection is proper. As outlined in Section 7-7(d) of the County’s Municipal
    Code, once the construction on the structure (i.e., the barn) is completed, an
    inspection must be performed by the County’s permit resource management division
    staff. The Schmids completed construction of the barn years before any discussion
    of an inspection. Now that they have applied for a permit exemption, the County
    may require an inspection.
    4
    Appellants’ second contention is that their due process rights were violated at
    the Board of Building Appeals (“BOBA”) hearing regarding the Schmids’
    unpermitted barn. “The base requirement of the Due Process Clause is that a person
    deprived of property be given an opportunity to be heard ‘at a meaningful time and
    in a meaningful manner.’” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist.,
    
    149 F.3d 971
    , 984 (9th Cir. 1998) (quoting Armstrong v. Manzo, 
    380 U.S. 545
    , 552
    (1965)). Appellants were not denied their procedural due process rights because
    they received notice of, and were able to participate in, the hearing before the BOBA.
    Appellants received ample opportunity to present their evidence. Appellants plead
    their case and the County put on evidence. Appellants assert that the hearing was
    conducted in an impromptu, “ad hoc manner,” with Appellants being denied the right
    to cross examine witnesses or present evidence in a meaningful fashion.        Under
    normal administrative law procedures, “the opportunity to cross-examine witnesses
    [is not] mandatory in all cases.” Buckingham v. Sec’y of U.S. Dep’t of Agric., 
    603 F.3d 1073
    , 1083 (9th Cir. 2010). Appellants fail to establish any due process
    violation.
    AFFIRMED.
    5