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‘ 7 8 _ UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || VILLAGE COMMUNITIES, LLC, Case No.: 3:20-cv-01896-BEN-DEB 12 Mainutt ORDER GRANTING-IN-PART _ 13 v. DEFENDANTS’ MOTION TO 14 || COUNTY OF SAN DIEGO; and BOARD| + D/SMISS 15 or SANDIEGO OF THE COUNTY [E CF No. 5] □ 16 Defendants. 17 18 Plaintiff Village Communities, LLC (“Village Communities”) is suing Defendants 19 || the County of San Diego (the “County”) and the San Diego County Board of Supervisors 20 || (the “Board”) (collectively, “Defendants”) for claims arising from the denial of 21 development permits. The matter comes before the Court on Defendants’ Motion to 22 || Dismiss the First Amendment Complaint, ECF No. 4 (“FAC”). ECF No. 5. As set forth 23 || below, the Motion is granted-in-part. 24 BACKGROUND! 25 Village Communities is a real estate development entity that owns approximately 26 ||. 27 ||! 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.

1 acres of land in an unincorporated area of San Diego County, California (the 2 ||“Property”). FAC, ECF No. 4, □ 1. The Property is. located just east of Interstate 15 and 3 || south of West Lilac Road, approximately ten miles north of the City of Escondido. /d. at 4 || 28. Village Communities purchased the property in 2017 from another developer that 5 || unsuccessfully tried to develop the Property into approximately 1,750 homes, with an 6 associated school, commercial, and retail facilities. /d. at {| 33,47. After acquiring the 7 || Property, Village Communities substantially revised the proposed project, working with 8 || Defendants’ Planning Department staff to address various concerns about its scope. Id. at 9 47-52. Nonetheless, Village Communities alleges the Planning Department staff was 10 || not satisfied with its efforts to reform the project and recommended the Board deny 11 approval. Jd. at J] 94-100. On June 20, 2020, the Board formally voted to deny the 12 project, and Village Communities filed suit. Id. | 13 Fundamentally, this case involves concern (or lack thereof) about wildfires. The 14 || Property sought to be developed is in a high risk area for these disasters. FAC at □□□□ 15 || Village Communities argues that through its work with Planning Department staff, it 16 revised the project to mitigate the risk down to acceptable levels consistent with the 17 ||County’s General Plan, a master zoning document that governs all future development 18 |) within the County’s boundaries, Id. at §§, 54. Despite these substantial revisions, Village 19 || Communities alleges Defendants denied the permit only after Village Communities 20 ||refused to meet an unconstitutional condition, namely—purchasing “fuel modification 21 |}easements” from 50 adj acent land owners. Jd. at { 102. oe 22 A fuel modification easement grants the easement holder the right to enter property 23 control vegetation on the portion of the property subject to the easement. FAC at 24 In the context of wildfires, the permitted entry typically involves destroying and 25 ||removing vegetation that serves as the “fuel” for fires, which can help stop a fire’s spread 26 || across a roadway, like West Lilac Road. /d. Defendants allegedly required Village 27 || Communities to obtain these easements from the individual property owners as a 28 || condition for approving the development. /d. at { 100. 9. □

1 Village Communities argues Defendants’ unconstitutionally required Villages 2 || Communities to obtain the easements because (1) the County already has the legal. 3 || 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 5 || capricious. 6 Village Communities asserts five claims for relief. FAC at J 107-136. Claims . 7 || one through four allege violations of 42 U.S.C. § 1983, while claim five seeks 8 administrative mandamus pursuant to California Civil Procedure Code section □□□□□□□ 9 Defendants move to dismiss each of the claims with prejudice. See Mot., ECF No. 5. 10 LEGALSTANDARD _

1] dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal 12 ||theory or absence of sufficient facts to support a cognizable legal theory. Johnson v. 13 || Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 14 729, 732 (9th Cir. 2001). When considering a Rule 12(b)(6) motion, the Court 15 ||“accept[s] as true facts alleged and draws] inferences from them in the light most 16 || favorable to the plaintiff.” Stacy v. Rederite Otto Danielsen, 609 F.3d 1033, 1035 (9th 17 || Cir. 2010). A plaintiff must not merely allege conceivably unlawful conduct but must 18 |j allege “enough facts to state a claim to relief that is plausible on‘its face.” Bell Atl. Corp. 19 lly. Twombly, 550 U.S. 544, 570 (2007). “A claim is facially plausible ‘when the plaintiff 20 || pleads factual content that allows the court to draw the reasonable inference that the 21 || defendant is liable for the misconduct alleged.” Zixiang Li v. Kerry, 710 F.3d 995, 999 22 Cir, 2013) (quoting Ashcroft v. Igbal, 556 U.S. 662, 678 (2009))..“Threadbare 23 recitals of the elements of a cause of action, supported by mere conclusory statements, do 24 || not suffice.” Iqbal, 556 U.S. at 678. 25 Ifa court dismisses a complaint, it may grant‘ leave to amend unless “the pleading 26 || could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. 27 N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 28

| ||. ANALYSIS 2 Village Communities’ first four claims allege violations of 42 U.S.C. § 1983 3 (“Section 1983”), which prohibits state actors from depriving a plaintiff of the “rights, 4 || 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 6 depriv[ed] [it] of federal rights, privileges or immunities [and] (4) caused [it] 7 damage.” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005) (quoting 8 Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 1284 (9th Cir. 9 |11994)). Section 1983 “is not itself a source of substantive rights, but merely provides a 10 |imethod for vindicating federal rights elsewhere conferred.” Id. (citations omitted). 11 || Accordingly, each of Village Communities’ Section 1983 claims must plausibly allege 12 || the deprivation of a right protected by the Constitution or laws of the United States. As 13 ||noted above, Defendants move to dismiss each claim. 14 A. Takings Clause Claims (Claims I and 2) 15 Village Communities’ first and second claims brought pursuant to Section 1983 16 allege violations of its rights under the Fifth Amendment’ Takings Clause through (1) 17 || inverse condemnation and (2)a temporary taking. FAC, J] 107-117. Village 18 |) Communities argues Defendants committed a taking without just compensation by . 19 |) denying its proposed development project “solely because Village Communities refused 20 || to accede to the County’s unconstitutional condition to secure 50 off-site roadway 21 easements, at a substantial cost, to establish and maintain a 20-foot ‘fuel modification 22 ||zone’ for fire clearing purposes.” Opp’n, ECF No. 8, 9. Defendants argue the FAC fails 23 ||to state claims for relief because (1) “the County’s failure to enact legislation is not a 24 |i taking,” (2) the unconstitutional conditions doctrine does not apply to legislative 25 || enactments, and (3) there is no taking because Defendants did not require Village 26 || Communities to give up any property. Reply, ECF No. 11, 1-5. a7 The Fifth Amendment prohibits the government from taking private property for 28 || public use without just compensation. Additionally, “[u]nder the well-settled doctrine of

1 || ‘unconstitutional conditions,’ the government may not require a person to give up a 2 || constitutional right ... in exchange for a discretionary benefit conferred by the 3 || 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 5 || Court] must first determine whether the ‘essential nexus’ exists between the ‘legitimate 6 || state interest’ and the permit condition exacted by the [government entity].” Jd. at 386, 7 || (quoting Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987)). The Supreme 8 || Court described this “essential nexus” as a “rough proportionality” between the exaction 9 || demanded by the government entity and the “nature and extent to the impact of the 10 || proposed development.” Jd. at 391, . 1] In 2013, the Supreme Court clarified that the unconstitutional conditions doctrine 12 || does not depend “on whether the government approves a permit on the condition that the | 13 || applicant turn over property or denies a permit because the applicant fails todoso.” 14 || Koontz v. St. Johns River Water Management District, 570 U.S. 595, 606 (2013). □□□ 15 || Court further confirmed “that the government’s demand for property from a land-use 16 || permit applicant must satisfy the requirements of No/lan and Dolan even when. . . its 17 ||demand is for money.” Id. at 619. Reading these authorities together, an. unconstitutional 18 conditions claim may arise if the government demands an exaction of money that is not 19 || roughly proportional to the nature and extent of the development as a condition of permit 20 || approval. . 21 Here, Village Communities alleges Defendants conditioned approval of its 22 || proposed development on agreeing to the purchase of fifty fuel modification easements. 23 ||FAC, 10. Village Communities argues acquiring these easements would only come ata 24 “substantial cost” because it was essentially required to purchase these easements from 25 of the fifty landowners surrounding the Property in order to obtain approval for the 26 || project. at §/9, Village Communities also plausibly alleges Defendants did not need 27 || those easements because the County Consolidated Fire Code already provided 28 || Defendants the authority to take the actions the easements would provide: destroying and 45

□ 1 ||clearing vegetation near a public roadway to prevent the spread of a wildfire. Jd. These 2 |\allegations plausibly state prima facie inverse condemnation and temporary takings 3 || claims based on the unconstitutional conditions doctrine. | 4 Defendants’ arguments concerning legislative enactments may be persuasive at 5 later phases of the litigation. Village Communities will also have to prove the casual 6 |jrelationship between the alleged unconstitutional condition and the Board’s decision, not 7 the Planning Department staff's recommendation. However, “accept[ing] as true 8 || facts alleged and draw[ing] inferences from them in the light most favorable to the 9 || plaintiff,” the Court finds Village Communities has plausibly stated claims for relief 10 || invoking the Takings Clause. Stacy, 609 F.3d at 1035. Accordingly, the Court denies 11 || Defendants’ Motion to Dismiss these claims, 12 B. Due Process Claim (Claim 4) ‘Village Communities next argues Defendants violated its rights under the Due 14 || Process Clause of the Fourteenth Amendment by arbitrarily and unreasonably denying its 15 || development application. FAC, ECF No. 4, 4125-26. Defendants argue that legislative 16 immunity shields them from this claim, because approving Village Communities’ permits 17 “required two legislative acts—amending the County’s General Plan and its zoning 18 || ordinance.” Reply, ECF No. 11, 6 (citing Thornton v. City of St. Helens, 425 F.3d 1158, 19 |) 1163 (9th Cir. 2005)). 20 The Due Process Clause of the Fourteenth Amendment provides: “No State shall . . 21 ||. deprive any person of life, liberty, or property, without due process of law.” U.S. 22 || Const. amend. XIV, § 1. The Due Process Clause “provides heightened protection 23 || against government interference with certain fundamental rights and liberty 24 |linterests.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Violations of rights 25 protected by the Due Process Clause may be either substantive or procedural. To 26 || maintain a substantive due process claim, a plaintiff must show (1) a governmental 27 || restriction on a liberty that (2) lacked a rational relationship to a government interest. N. 28 || Pacifica LLC v. City of Pacifica, 526 F.3d 478, 485 (9th Cir. 2008). Thus, in the context

1 || of this case, “a challenge to land use regulation may state a substantive due process 2 |\claim, so long as the regulation serves no legitimate government purpose.” N. Pacifica 3 ||LLIC v. City of Pacifica, 526 F.3d 478, 484 (9th Cir. 2008). A regulation serves no 4 || legitimate government purpose where a “land use action lacks any substantial relation to 5 || the public health, safety, or general welfare.” Jd. (quoting Crown Point Dev., Inc. v. City 6 || of Sun Valley, 506 F.3d 851, 856 (9th Cir. 2007)). 7 Here, Village Communities alleges Defendants imposed a requirement that it 8 || obtain useless fuel modification easements as a condition precedent to approval of the 9 || proposed development. FAC, ECF No. 4, 76. Village Communities reasons these 10 |}easements lack any relationship to the public health, safety, or general welfare because 11 || Defendants already have the authority to do the action the easements supposedly allow— 12 destroy and remove vegetation on the Property that would be subject to the easement. 13 Because this condition for project approval is allegedly needless and redundant of 14 || existing authority, it “serves no legitimate government purpose.” N. Pacific LLC, 526 15 || F.3d at 484. . 16 Without deciding the issue, the Court concludes Village Communities has 17 ||plausibly alleged a substantive due process claim. Moreover, it finds Defendants’ 18 arguments unpersuasive. In North Pacifica, the Ninth Circuit analyzed whether the 19 allegedly wrongful behavior of failing to timely process land use permits could support a 20 || substantive due process claim. Jd. at 485. That court concluded the defendant city 21 council had legitimate reasons for delaying the permit applications and affirmed 22 || dismissal of the substantive due process claim. /d. Notably, however, the court reached 23 merits of that question and did not rely on a grant of legislative immunity. /d. 24 Moving forward, Village Communities retains the burden of proving particular 25 || conduct violated its substantive due process rights and Defendants remain free to advance 26 || legislative immunity arguments for particular Defendants and particular actions. Here, 27 || however, the FAC plausibly alleges Defendants denied the development application for 28 reasons unrelated to public health, safety, or general welfare. Accordingly, the Court

1-|| denies Defendants’ Motion to Dismiss this claim as well. 2 C. Equal Protection Claim (Claim 3) 3 Village Communities next alleges Defendants violated its rights under the Equal 4 Protection Clause of the Fourteenth Amendment by imposing a condition for 5 development on Village Communities that Defendants did not impose on other, similarly 6 || situated development proposals during the same time frame. FAC, { 120. Defendants 7 argue their decision to deny permitting was discretionary, precluding an equal protection □ 8 |iclaim, and also benefits from legislative immunity. Reply, ECF No. 11, 6-7. 9 The Equal Protection Clause of the Fourteenth Amendment provides: “No □□□□□ 10 ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. 11 |] Const. amend. XIV, § 1. “When an equal protection claim is premised on unique 12 treatment rather than on a classification, the Supreme Court has described it as a ‘class of | 13 || 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 15 || must allege the government treated it “differently from others similarly situated.” Id. 16 || The discriminatory treatment must be “intentionally directed” at the plaintiff, as opposed 17 being an accident or random act.” Jd. (citations omitted). 18 Here, Village Communities has plausibly pled these allegations, It alleges 19 || Defendants imposed the fuel modification.easement condition only on its proposed 20 || development and not on “other similarly situated properties and projects in the County at 21 || or about the same time frame.” FAC, 120, The FAC even lists several projects, 22 || providing Defendants additional notice of the nature of Village Communities’ claim. Jd. 23 || As discussed above, Village Communities alleges the fuel modification easement 24 || condition is an unconstitutional condition, and by imposing the condition Defendants are 25 treating Village Communities “differently from others similarly situated.” N. Pacifica, 26 F.3d at 486. Therefore, the Court finds this claim is also facially plausible, and 27 || denies Defendants’ Motion to Dismiss this claim. See Zixiang Li, 710 F.3d at 999. 28

Q :

1 D. Administrative Mandamus (Claim 5) 2 Village Communities’ final claim seeks Administrative Mandamus. FAC, ECF 3 ||No. 4, 129-136. It asks the Court to issue “an alternative or peremptory writ of 4 || 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 6 |1 140. Village Communities also argues that in light of the Supreme Court’s decision in 7 || Knick v. Township of Scott, 139 §. Ct. 2162 (2019), it no longer needs to pursue a 8 ||mandate claim as a condition precedent to a federal Takings Clause claim. Opp’n, ECF 9 8, 17. Defendants argue the claim should be dismissed because the Court cannot 10 || grant the relief Village Communities requests. Mot., ECF No. 5,9-10. | I] The Supreme Court recently held that “because a taking without compensation □ 12 || violates the self-executing Fifth Amendment at the time of the taking, the property owner 13 bring a federal suit at that time.” Knick, 139 S. Ct. at 2172. Here, Village 14 || Communities alleges the unconstitutional condition is the taking, which accrued on the 15 || date the Board denied its development application. Accordingly, the Court finds the 16 alleged taking has already occurred, and in accordance with Knick, Village Communities 17 || can now bring a Takings Clause claim without separately pursuing mandamus relief. 18 || Moreover, the Court agrees with Defendants that the requested mandamus relief asks the 19 |) Court to “compel a legislative body to act in a particular way,” which raises concerns of 20 |l infringing on the separation of powers on which this country was founded. See Johanson 21 |v. City Council of Santa Cruz, 222 Cal. App. 2d 68, 72 (1963). Put simply, the Court 22 grant Village Communities damages and other relief if it proves its § 1983 claims, 23 || but it cannot order the Board to approve this development. Accordingly, the Motion to 24 || Dismiss the fifth claim is granted. . 25 IV. CONCLUSION 26 For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED-IN- 27 || PART, ECF No. 5, as follows: 28 -

l 1.. Defendants’ Motion to Dismiss the first through fourth claims for relief in 2 the FAC brought pursuant to Section 1983 is DENIED. 3 2. Defendant’s Motion to Dismiss Plaintiff's Fifth Claim for Relief, seeking 4 || administrative mandamus is GRANTED. This claim is dismissed. 3. Plaintiff wishes to file an amended complaint, Plaintiff must request leave 6 || of this Court within fourteen (14) days of this Order. See Fed. R. Civ. P. 15 (a)(2).

IT IS SO ORDERED.

8 9 DATED: FebruaryZ~_, 2021 fo leecz 10 . HON T. BE Z 11 |] . United States District Judge 12

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