Rosemary Jensen v. County of Sonoma , 444 F. App'x 156 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSEMARY JENSEN AND No. 10-16459
RANDY JENSEN,
D.C. No. 3:08-cv-03440-JCS
Plaintiffs - Appellants,
v. MEMORANDUM*
COUNTY OF SONOMA,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, District Judge, Presiding
Argued and Submitted June 16, 2011
San Francisco, California
Before: BYBEE, and MURGUIA, Circuit Judges, and EZRA, District Judge.**
Plaintiffs-Appellants Rosemary and Randy Jensen ("the Jensens") appeal the
district court's grant of summary judgment to the County of Sonoma ("the
County") on the Jensens' 42 U.S.C. § 1983 claims asserting various constitutional
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
** The Honorable David A. Ezra, United States District Judge for the District of Hawaii,
sitting by designation.
violations. The claims arise from a hearing held by the County to abate various of
the Jensens' uses of 50 Sonoma Mountain Road, a "Diverse Agricultural" zoned
property that the County had determined to be in violation of county zoning
ordinances. Because the history of the case is familiar to the parties, we need not
recount it in its entirety here.
As an initial matter, the County's claims were not barred by the doctrine of
res judicata or claim preclusion under the holding in Miller v. County of Santa
Cruz, 39 F.3d 1030 (9th Cir. 1994), because the Appellants, unlike the appellant in
Miller, sought a writ of mandate under California Code of Civil Procedure §
1094.5.
The Court affirms the district court's ruling that the county ordinance at issue
in this case is not unconstitutionally vague. Section 26-08-020 of the Sonoma
County Code sets forth permitted uses for land zoned as "Diverse Agricultural."
The code section is amply detailed and, when viewed in the context of the entire
ordinance, a reasonable person can discern that the storage of non-operative
vehicles, the operation of a junkyard, or a truck or equipment terminal or depot are
not permitted uses for such land. See, e.g., Turning Point, Inc. v. City of Caldwell,
74 F.3d 941, 944 (9th Cir. 1996).
We also affirm the district court's ruling that the County did not violate the
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Jensens' substantive due process rights. Because the Jensens do not assert that
they belong in a protected class, they must establish that: 1) they are a member of
an identifiable class; 2) that they were intentionally treated differently from others
similarly situated; and 3) that there is no rational basis for the difference in
treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The County's
actions comport with equal protection if there is "any reasonably conceivable state
of facts that could provide a rational basis for the classification." See SeaRiver
Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002) (quoting
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)).
Even assuming the Jensens could satisfy the other requirements under the
test, they failed to establish that the County lacked a rational basis for having
complaint-driven enforcement of an ordinance or for prohibiting the outdoor
storage of non-operative vehicles while allowing the indoor storage of such
vehicles, the outdoor storage of operative vehicles, and the outdoor storage of
historic vehicles. While a complaint-driven system of enforcement could
theoretically leave some unreported violations unabated, an efficient allocation of
limited enforcement resources provides a rational basis for a complaint-based
system. Cf. Rosenbaum v. City and Cnty. of San Francisco, 484 F.3d 1142, 1155
(9th Cir. 2007) ("[T]he police may legitimately respond to citizen complaints and
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stop excessive amplified sound, especially if unpermitted."). And the County's
stated environmental concerns are sufficient to justify its distinction between the
outdoor storage of non-operative vehicles and other permitted vehicle storage.
The County also had a rational basis for concluding that the Jensens did not
have a protected grandfathered use of their property pursuant to Hansen Brothers
Enterprises, Inc. v. Board of Supervisors, 12 Cal. 4th 533 (1996). The County
could only have committed a substantive due process violation in denying the
Jensens' grandfathered use if it “could have had no legitimate reason for its
decision.” Richardson v. City and Cnty. of Honolulu, 124 F.3d 1150, 1162 (9th
Cir. 1997) (quoting Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th
Cir. 1994)). The County concluded that the Jensens' use of the property for
extensive car storage did not predate the 1975 ordinance based on an aerial photo
showing that the property was not being used in that way in 1980. The County’s
reliance on the 1980 photograph provided a legitimate basis for its decision.
The Jensens' Fourth Amendment claim, which is based on the order from the
County directing them to schedule an inspection confirming abatement, fails
because no search or seizure occurred. Cf. Conner v. City of Santa Ana, 897 F.2d
1487, 1490-92 (9th Cir. 1990) (finding a Fourth Amendment violation where
police, without a warrant, removed automobiles deemed a public nuisance from
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private property). Furthermore, given its finding that there was a zoning ordinance
violation, the County's order requiring the Jensens to schedule inspection to
confirm abatement is reasonable and does not present a Fourth Amendment
violation. See Sanchez v. Cnty. of San Diego, 464 F.3d 916, 923–924 (9th Cir.
2006); G.H. Love, Inc. v. Fleming, 161 F.2d 726, 728 (9th Cir. 1947).
The Jensens' claim that they were penalized for seeking a hearing in
violation of their First Amendment right to petition the government for redress also
lacks merit. As the district court noted, there is no evidence in the record –
including on the penalty sheet – to support the Jensens' claim that they were
penalized for either seeking or participating in the hearing. The Jensens' due
process claim, which is also based on the penalty sheet, also lacks basis and
support in the record. The penalty sheet provides parameters and limitations for
the administrative officer to make a penalty calculation, and the Jensens had an
opportunity to be heard at the hearing. See Mathews v. Eldridge, 424 U.S. 319,
333 (1976). Therefore, the district court's ruling dismissing these claims is also
affirmed.
The district court’s order granting the County's motion for summary
judgment is AFFIRMED.
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