1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 VILLAGE COMMUNITIES, LLC, et al., Case No.: 20-cv-01896-AJB-DEB 10 Plaintiffs,

ORDER:

11 v. 12 COUNTY OF SAN DIEGO; BOARD OF (1) DENYING PLAINTIFFS’ MOTION

SUPERVISORS OF COUNTY OF SAN FOR PARTIAL SUMMARY

13 DIEGO; and DOES 1–20, JUDGMENT; and

14 Defendants. (2) GRANTING IN PART AND 15 DENYING IN PART DEFENDANTS’

MOTION FOR SUMMARY

16

JUDGMENT, OR, IN THE

17 ALTERNATIVE, PARTIAL

SUMMARY JUDGMENT

18

19 (Doc. Nos. 36 & 37)

20 Presently pending before the Court is (1) Defendants Board of Supervisors of San 21 Diego (the “Board”) and County of San Diego’s (the “County”) (collectively, 22 “Defendants”) Motion for Summary Judgment, (Doc. No. 36), and (2) Plaintiffs’ Motion 23 for Partial Summary Judgment, (Doc. No. 37). The motions have been fully briefed. (Doc. 24 Nos. 40–43.) The Court thereafter ordered supplemental briefing on one issue as discussed 25 below. (Doc. No. 52.) Defendants filed their supplemental brief on June 17, 2022, (Doc. 26 No. 53), and Plaintiffs responded on June 24, 2022, (Doc. No. 54). For the reasons set forth 27 28 1 below, the Court DENIES Plaintiffs’ motion for partial summary judgment and GRANTS 2 IN PART AND DENIES IN PART Defendants’ motion for summary judgment. 3 I. BACKGROUND 4 In 2010, the County granted then-applicant Accretive Investments a “Plan 5 Amendment Authorization” for the Lilac Hills Ranch planned community (the “Project”) 6 on 608 acres of land in unincorporated North San Diego County, California (the 7 “Property”). (Doc. No. 37-1 at 10.) In 2012, Accretive submitted its development 8 application to the County, and the Project underwent environmental and public review 9 between May 2012 and 2015. (Id.) In September 2015, the San Diego County Planning 10 Commission voted to recommend Environmental Impact Review certification and project 11 approval to the Board, subject to modifications. (Id. at 11.) However, later that year, the 12 California Supreme Court issued a decision affecting the 2015 Project’s greenhouse gas 13 emissions analysis, which paused movement on the project. (Id.) 14 In 2016, Accretive placed a modified version of the 2015 Project on the ballot as a 15 voter initiative, but it was rejected by 64% of county voters. (Id.; Doc. No. 36-1 at 5.) In 16 2017, Village Communities overtook the Project and resumed processing the application. 17 (Doc. No. 37-1 at 12.) After acquiring the Property, Village Communities revised the 18 proposed project, working with the County’s Planning Commission staff to address various 19 concerns. (Id.) Nonetheless, on June 20, 2020, the Board formally voted to deny the project, 20 and Plaintiffs filed suit. (Id. at 26.) 21 This case ultimately concerns wildfire safety, as the Property sought to be developed 22 is in a high-risk area for such disasters. Plaintiffs assert that through its work with Planning 23 Commission staff, it revised the Project to mitigate the risk down to acceptable levels 24 consistent with the County’s General Plan, a master zoning document that governs all 25 future development within the County’s boundaries. Despite these revisions, Plaintiffs 26 allege Defendants denied the permit only after Village Communities refused to meet an 27 alleged unconstitutional condition—namely, acquiring “fuel modification easements” from 28 fifty adjacent landowners. 1 A fuel modification easement grants the easement holder the right to enter property 2 and control vegetation on the portion of the property subject to the easement. In the context 3 of wildfires, the permitted entry typically involves destroying and removing vegetation that 4 serves as “fuel” for fires, which can help stop a fire’s spread across a roadway. Here, the 5 main road leading to and from the Project site is a two-lane road called West Lilac Road, 6 which is surrounded to the north and east by an area called Keys Canyon that is 7 characterized by large, dense, flammable brush. (Doc. No. 36-1 at 9.) Particularly of 8 concern, the County Fire Authority (“County Fire”) found that the addition of over 3,000 9 cars from the Project residents, plus additional vehicles from people traveling to and from 10 the Project, would cause substantial traffic congestion on West Lilac during a wildfire 11 evacuation, presenting a risk of people becoming entrapped in their vehicles during an 12 evacuation. (Id. at 10.) Thus, Defendants allegedly required Village Communities to obtain 13 these easements from the individual property owners as a condition for approving the 14 development. 15 Plaintiffs contend Defendants unconstitutionally required Plaintiffs to obtain the 16 easements because (1) the County already had the legal authority the easements supposedly 17 convey, (2) other similar projects have not been subject to the same requirement, and 18 (3) Defendants’ actions were arbitrary and capricious. Plaintiffs assert four claims for 19 relief, each alleging violations of 42 U.S.C § 1983. 20 II. LEGAL STANDARD 21 A court may grant summary judgment when it is demonstrated that there exists no 22 genuine dispute as to any material fact, and that the moving party is entitled to judgment 23 as a matter of law. See Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 24 157 (1970). The party seeking summary judgment bears the initial burden of informing a 25 court of the basis for its motion and of identifying the portions of the declarations, 26 pleadings, and discovery that demonstrate an absence of a genuine dispute of material fact. 27 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it might 28 affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, 1 Inc., 477 U.S. 242, 248–49 (1986). A dispute is “genuine” as to a material fact if there is 2 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See 3 Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 4 Where the moving party will have the burden of proof on an issue at trial, the movant 5 must affirmatively demonstrate that no reasonable trier of fact could find other than for the 6 movant. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where 7 the non-moving party will have the burden of proof on an issue at trial, the movant may 8 prevail by presenting evidence that negates an essential element of the non-moving party’s 9 claim or by merely pointing out that there is an absence of evidence to support an essential 10 element of the non-moving party’s claim. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 11 210 F.3d 1099, 1102–03 (9th Cir. 2000). If a moving party fails to carry its burden of 12 production, then “the non-moving party has no obligation to produce anything, even if the 13 non-moving party would have the ultimate burden of persuasion.” Id. If the moving party 14 meets its initial burden, the burden then shifts to the opposing party to establish that a 15 genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. 16 Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot “rest upon the 17 mere allegations or denials of [its] pleading but must instead produce evidence that sets 18 forth specific facts showing that there is a genuine issue for trial.” See Estate of Tucker, 19 515 F.3d 1019, 1030 (9th Cir. 2008) (internal quotation marks and citation omitted). 20 Where cross-motions for summary judgment are at issue, the court “evaluate[s] each 21 motion separately, giving the nonmoving party in each instance the benefit of all reasonable 22 inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790–91 (9th Cir. 2006) 23 (internal quotation marks omitted). That said, “the court must consider each party’s 24 evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC 25 v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). However, “[b]ald assertions that genuine 26 issues of material fact exist are insufficient.” See Galen v. Cty. of Los Angeles, 477 F.3d 27 652, 658 (9th Cir. 2007); see also Day v. Sears Holdings Corp., No. 11–09068, 2013 WL 28 1010547, at *4 (C.D. Cal. Mar. 13, 2013) (“Conclusory, speculative testimony in affidavits 1 and moving papers is insufficient to raise genuine issues of fact and defeat summary 2 judgment.”). “When opposing parties tell two different stories, one of which is blatantly 3 contradicted by the record, so that no reasonable jury could believe it, a court should not 4 adopt that version of the facts for purposes of ruling on a motion for summary judgment.” 5 Scott v. Harris, 550 U.S. 372, 380 (2007). 6 III. REQUESTS FOR JUDICIAL NOTICE 7 To begin, Defendants request judicial notice of five exhibits as part of their motion, 8 (Doc. No. 36-2), and two exhibits in their reply in support of their motion, (Doc. No. 42- 9 1). Under Federal Rule of Evidence 201, the court “may judicially notice a fact that is not 10 subject to reasonable dispute” for the following two reasons: (1) “it is generally known 11 within the trial court’s territorial jurisdiction,” or (2) it “can be accurately and readily 12 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 13 201(b). 14 A. Defendants’ Request for Judicial Notice: Exhibits 1–5 15 First, Defendants ask the Court to take judicial notice of (1) County of San Diego 16 Resolution No. 17-001, dated January 10, 2017; (2) Statement of Proceedings for the June 17 24, 2020 County of San Diego Board of Supervisors Regular Meeting Planning and Land 18 Use Matters; (3) Minute Order No. 3 for the County of San Diego Board of Supervisors 19 Meeting of June 24, 2020; (4) County Board of Supervisors Resolution No. 20-078, dated 20 June 24, 2020; and (5) Letter from Deputy Chief Administrative Office Sarah E. Aghassi 21 to the San Diego County Board of Supervisors for its June 24, 2020 meeting. (Doc. No. 22 36-2 at 2; see also Doc. No. 40-2.) Plaintiffs did not oppose this request or dispute the 23 authenticity of these documents. (See generally Doc. No. 41.) 24 Courts routinely grant judicial notice of public records. Harris v. Cty. of Orange, 25 682 F.3d 1126, 1132 (9th Cir. 2012) (noting that a court may take judicial notice of 26 “undisputed matters of public record”). Accordingly, Defendants’ request for judicial 27 notice of Exhibits 1–5 is GRANTED. 28 /// 1 B. Defendants’ Request for Judicial Notice: Exhibits 34 & 39 2 Next, attached to Defendants’ reply brief are additional requests for judicial notice 3 of (1) portions of the Statement of Proceedings for the July 8, 2020 County of San Diego 4 Board of Supervisors Regular Meeting Planning and Land Use Matters, and (2) California 5 Fire Code § 1010.1.9. (Doc. No. 42-1 at 2.) The Court finds these two documents irrelevant 6 to the present matter. Thus, at this stage of the proceedings, as the two exhibits are 7 irrelevant to any controversy the Court must resolve and the documents cannot be 8 incorporated by reference, judicial notice of Exhibits 34 and 39 is DENIED. See Gerritsen 9 v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1026 (C.D. Cal. 2015) (declining to 10 take judicial notice of several exhibits finding they were irrelevant to the matter). 11 IV. EVIDENTIARY OBJECTIONS 12 Defendants lodge a separate statement of evidentiary objections to Plaintiffs’ 13 evidence submitted in support of Plaintiffs’ motion for summary judgment. (Doc. No. 40- 14 1.) However, Defendants’ objections do not comply with the Civil Case Procedures of the 15 Honorable Anthony J. Battaglia, U.S. District Judge, which requires objections relating to 16 the motion to be set forth in the parties’ opposition or reply. J. Battaglia Civ. Case Proc. 17 § II.A. As such, the Court does not consider Defendants’ objections. 18 V. DISCUSSION 19 Plaintiffs’ four claims allege violations of 42 U.S.C. § 1983, which prohibits state 20 actors from depriving a plaintiff of the “rights, privileges or immunities secured by the 21 Constitution.” To prevail on a Section 1983 claim, a plaintiff must show that “(1) acts by 22 the defendants (2) under color of state law (3) depriv[ed] [it] of federal rights, privileges or 23 immunities [and] (4) caus[ed] [it] damage.” Thornton v. City of St. Helens, 425 F.3d 1158, 24 1164 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 25 42 F.3d 1278, 1284 (9th Cir. 1994)) (internal quotation marks omitted). Section 1983 “is 26 not itself a source of substantive rights, but merely provides a method for vindicating 27 federal rights elsewhere conferred.” Id. (internal quotation marks omitted). 28 /// 1 Defendants move for summary judgment on each of Plaintiffs’ four claims for 2 (1) inverse condemnation, (2) temporary taking, (3) equal protection violations, and 3 (4) substantive due process violations. (Doc. No. 36.) Plaintiffs move for partial summary 4 judgment to establish Defendants’ liability under its four claims alleging violations of 5 Section 1983. (Doc. No. 37.) The Court will address each basis for summary judgment 6 below. 7 A. Plaintiffs’ First and Second Takings Clause Claims 8 Plaintiffs’ first and second claims, brought pursuant to Section 1983, allege 9 violations of their rights under the Fifth Amendment’s Takings Clause through (1) inverse 10 condemnation and (2) a temporary taking, on the grounds that the County’s request for 11 offsite fuel modifications is an unconstitutional condition. (SAC ¶¶ 107–117.) Plaintiffs 12 and Defendants both move for summary judgment on these claims. (Doc. Nos. 37-1 at 29– 13 31, 36-1 at 14–25.) Specifically, Plaintiffs assert the County wrongfully conditioned the 14 Project on the purchase of fifty fuel modification easements from off-site landowners, 15 which would only come at a “substantial cost” to Plaintiffs. (Doc. No. 37-1 at 31.) Plaintiffs 16 further contend the County did not need those easements because the County Consolidated 17 Fire Code already provided the County and/or fire authority with the legal authorization to 18 clear vegetation near the public roadway—the same authority the easement would provide. 19 (Id.) Defendants counter that (1) the County needed to undertake legislative acts to amend 20 its General Plan and zoning ordinance to approve the Project; (2) the Board denied the 21 Project for additional reasons independent of the easement condition; (3) there is no 22 unconstitutional taking because the County did not require Plaintiffs to give up property; 23 and (4) there is no unconstitutional taking because the easement condition satisfies the test 24 set out in Koontz v. St. Johns River Water Management Dist., 570 U.S. 595 (2013), under 25 Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of 26 Tigard, 512 U.S. 374 (1994). (Doc. No. 36-1 at 14–25.) 27 /// 28 /// 1 1. Generally Applicable Legislation 2 As an initial matter, Defendants assert that because the County could not approve 3 the Project without amending its General Plan or zoning ordinance, the County’s decision 4 was a legislative one which does not give rise to a taking. (Doc. No. 36-1 at 17.) Although 5 Defendants again raise this argument in their supplemental briefing, it is outside the scope 6 of what the Court previously ordered and thus will disregard this argument. (See Doc. No. 7 52.) The Court ultimately finds this argument unavailing. 8 In Dolan, the Supreme Court highlighted that the “the city made an adjudicative 9 decision to condition petitioner’s application for a building permit on an individual parcel,” 10 instead of imposing an “essentially legislative determination[] classifying entire areas of 11 the city . . . .” 512 U.S. at 385; see also Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 546 12 (2005) (“Both Nollan and Dolan involved Fifth Amendment takings challenges to 13 adjudicative land-use exactions.”); Better Housing for Long Beach v. Newsom, 452 F. 14 Supp. 3d 921, 932 (C.D. Cal. 2020) (same). Courts recognize that “adjudicative” zoning 15 decisions are typically ad hoc, characterized by the exercise of discretion by the city or 16 administrative body. Legislative actions, on the other hand, are characterized by “generally 17 applicable legislation . . . that [] applie[s], without discretion or discrimination,” to every 18 property within the purview of the legislation. San Remo Hotel L.P. v. City of San 19 Francisco, 27 Cal. 4th 643, 645 (2002); see also Ballinger v. City of Oakland, 398 F. Supp. 20 3d 560, 570 (N.D. Cal. 2019) (holding the plaintiff’s unconstitutional exaction claim failed 21 as a matter of law because it was generally applicable legislation); Better Housing for Long 22 Beach, 452 F. Supp. 3d at 933 (positing that for “general land use regulations,” the 23 appropriate test is a Penn Central regulatory takings analysis, rather than Nollan/Dolan 24 scrutiny). 25 Plaintiffs do not allege or argue that amending the County’s General Plan or zoning 26 ordinance is a regulatory taking under Penn Central Transportation Co. v. City of New 27 York, 438 U.S. 104, 124 (1978), or a facial challenge to either. (Doc. No. 41 at 9.) Rather, 28 Plaintiffs assert its takings claims are adjudicative decisions based on Defendants’ denial 1 of the Project solely because Village Communities refused to secure fifty offsite roadway 2 fuel modification easements. (Id. at 8.) The Court agrees. 3 Plaintiffs’ takings claims are not predicated on legislative determinations classifying 4 an entire area of the County or on the County’s decision not to amend the General Plan or 5 zoning ordinance. Rather, Defendants made an adjudicatory decision to condition only 6 Plaintiffs’ development application with an easement condition. Moreover, the proposed 7 development application did not involve a countywide general plan amendment or a zoning 8 ordinance generally applicable to the entire county area. As such, the Court finds there was 9 no legislative act which would preclude a takings claim under Nollan/Dolan. 10 2. The Board’s Denial of the Project 11 Defendants further argue that because the Board allegedly denied the Project for 12 multiple reasons independent of the easement condition, no taking occurred. (Doc. No. 36- 13 1 at 18–19.) Specifically, Defendants assert the Board denied the Project because the 14 majority of the Supervisors (1) were not going to disregard the public vote to reject the 15 proposed Project just four years prior, and (2) found the proposed Project inconsistent with 16 General Plan Policy H-2.1. (Id. at 19.) After insufficient briefing by both parties, the Court 17 ordered supplemental briefing and requested Defendants and Plaintiffs to address whether 18 Defendants had the ability to exercise their police power to deny the Project altogether. 19 (Doc. No. 52.) 20 In Nollan, the Supreme Court agreed with the Government’s position that “a permit 21 condition that serves the same legitimate police-power purpose as a refusal to issue the 22 permit should not be found to be a taking if the refusal to issue the permit would not 23 constitute a taking.” 483 U.S. at 836. Thus, the Court held, if the Government “could have 24 exercised its police power . . . to forbid construction of the house altogether, imposition of 25 the condition would also be constitutional.” Id. However, “unless the permit condition 26 serves the same governmental purpose as the development ban, the [condition] is not a 27 valid regulation of land use but ‘an out-and-out plan of extortion.’” Id. at 837. 28 /// 1 Defendants point to the June 24, 2020 County of San Diego Board of Supervisors 2 meeting minutes, where Supervisor Dianne Jacob discussed these various concerns, 3 including that the public vote “was soundly defeated by the public in 2016. Sixty-four 4 percent of the voters rejected the project.” (Doc. No. 36-4 at 241.) Supervisor Jacob went 5 on further to state the “[c]urrent project still grossly violates the county general plan, 1,746 6 homes versus 110 that would be allowed to our general plan.” (Id.) Defendants rely on 7 Nollan, asserting “[a] refusal to approve the proposed Project for reasons independent of 8 the easement condition is not a taking.” (Doc. No. 36-1 at 19 (citing Nollan, 483 U.S. at 9 836).) However, Supervisor Jacob acknowledged the motion pending before the Board 10 “was only on the easement issue and the fuel modification along West Lilac Road.” (Doc. 11 No. 36-4 at 239–40.) Additionally, Resolution No. 20-078 (“A Resolution of the San Diego 12 County Board of Supervisors Denying General Plan Amendment (GPA)”) specifically 13 outlines Plaintiffs’ failure to obtain offsite easements as the basis for the Board’s denial of 14 the Project. (Doc. No. 37-7 at 195–99.) As such, while the Supervisors of the Board may 15 have had additional independent reasons for denying the Project, Plaintiffs’ failure to 16 acquire offsite easements was the basis for the motion denying Project approval. 17 In their supplemental briefing, Defendants additionally contend they had the police 18 power to deny the Project because (1) state planning and zoning laws expressly gave the 19 Board the power to deny the Project; (2) the California Environmental Quality Act 20 (“CEQA”) gave Defendants the authority to deny the Project; and (3) they lawfully 21 exercised their discretion to deny the Project for reasons other than the easement condition. 22 (Doc. No. 52 at 2–10.) However, the Supreme Court has “repeatedly rejected the argument 23 that if the government need not confer a benefit at all, it can withhold the benefit because 24 someone refuses to give up constitutional rights.” Koontz, 570 U.S. at 608. Although 25 Defendants are correct they had the authority to deny the Project on grounds unrelated to 26 the easement condition, the County explicitly conditioned approval of the Project on 27 Plaintiffs’ acquisition of offsite easements. As such, “[e]ven if [Defendants] would have 28 been entirely within its rights in denying the permit for some other reason, that greater 1 authority does not imply a lesser power to condition permit approval on petitioner’s 2 forfeiture of his constitutional rights.” Id. 3 3. Transfer of Property Interest 4 Next, Defendants assert there is no unconstitutional taking because the County did 5 not require Plaintiffs to give up any property, either in the form of an easement or money. 6 (Doc. No. 36-1 at 19–21.) Specifically, Defendants argue County Fire did not demand 7 Plaintiffs to set aside any portion of the Project site or otherwise give up any portion of the 8 Project site to the County. (Id. at 20.) Moreover, despite Plaintiffs’ speculation that they 9 “would need to pay exorbitant amounts of money to obtain the easements,” Defendants 10 neither required this, nor did Plaintiffs ask a single West Lilac property owner for an 11 easement. (Id.) Thus, no property owner demanded money in exchange for an easement. 12 (Id.) Plaintiffs counter that some property owners would want money for an easement, and 13 that the fifty property owners “could extract $50,000 for each easement, or $2.5 million 14 total, or ‘higher.’” (Doc. No. 43 at 10.) 15 The Fifth Amendment prohibits the government from taking private property for 16 public use without just compensation. Additionally, “[u]nder the well-settled doctrine of 17 ‘unconstitutional conditions,’ the government may not require a person to give up a 18 constitutional right . . . in exchange for a discretionary benefit conferred by the government 19 where the benefit sought has little or no relationship to the property.” Dolan, 512 U.S. at 20 385. “In evaluating [a plaintiff’s claim, the Court] must first determine whether the 21 ‘essential nexus’ exists between the ‘legitimate state interest’ and the permit condition 22 exacted by the [government entity].” Id. at 386 (quoting Nollan, 483 U.S. at 937). The 23 Supreme Court described this “essential nexus” as a “rough proportionality” between the 24 exaction demanded by the government entity and the “nature and extent to the impact of 25 the proposed development.” Id. at 391. 26 In the land-use context, “a special application of [the unconstitutional conditions] 27 doctrine . . . protects the Fifth Amendment right to just compensation for property the 28 government takes when owners apply for land-use permits.” Koontz, 570 U.S. at 604 1 (citations and internal quotation marks omitted). In Nollan, for example, the Supreme Court 2 held that a state agency could not, without paying just compensation, require the owners 3 of beachfront property to grant a public easement over their property as a condition for 4 obtaining a building permit. 483 U.S. at 831–42; see also Dolan, 512 U.S. at 379–80, 394– 5 95 (concluding that a taking occurred when a city required a landowner to dedicate a 6 portion of her real property to a greenway that would include a bike and pedestrian path 7 for public use). Because of the typically broad powers wielded by permitting officials, 8 landowners who seek governmental authorization to develop their properties “are 9 especially vulnerable to the type of coercion that the unconstitutional conditions doctrine 10 prohibits.” Koontz, 570 U.S. at 605. “Extortionate demands” made by permitting 11 authorities can “frustrate the Fifth Amendment right to just compensation, and the 12 unconstitutional conditions doctrine prohibits them.” Id.; see Dolan, 512 U.S. at 396. 13 Here, the Court finds neither party has adequately provided evidence of whether 14 Plaintiffs were required to give up property in the form of money. Kenneth Keagy, a state- 15 licensed and certified general real estate appraiser, estimated that an easement along West 16 Lilac would cost $3,000 or less for twelve of the forty-eight parcels, while the remaining 17 thirty-six parcels would likely range from about $4,000 to $65,000 per parcel, averaging 18 about $22,000 per parcel. (Declaration of Kenneth Keagy, Doc. No. 37-9, ¶ 7.) However, 19 despite this appraisal, Plaintiffs fail to offer evidence that any property owners along West 20 Lilac would indeed demand money in exchange for an easement. Likewise, Defendants fail 21 to offer any evidence that Plaintiffs would not be required to pay money in exchange for 22 easements along West Lilac. As such, the Court DENIES both Plaintiffs’ and Defendants’ 23 motions for summary judgment as to Plaintiffs’ takings claims, and declines to engage in 24 determining whether there was a nexus and rough proportionality. 25 B. Plaintiffs’ Substantive Due Process Claim (Claim Four) 26 Plaintiffs next argue Defendants violated their rights under the Due Process Clause 27 of the Fourteenth Amendment by arbitrarily and unreasonably denying their development 28 application. (SAC ¶¶ 124–28.) Specifically, Plaintiffs assert the easement condition 1 imposed by Defendants lacks any relationship to the public health, safety, or general 2 welfare, and thus violated Plaintiffs’ substantive due process rights. (Doc. No. 37-1 at 32.) 3 Defendants respond that Plaintiffs’ substantive due process claim fails because they do not 4 have a protected property interest, and that even if they did, the easement condition had a 5 rational relationship to the County’s legitimate interest in ensuring the Project did not 6 create an undue risk of entrapment to nearby residents during a wildfire evacuation. (Doc. 7 No. 36-1 at 25–26.) Although the Parties again raise this argument in their supplemental 8 briefings (see Doc. Nos. 53 at 18; 54 at 13), it is outside the scope of what the Court 9 previously ordered. (See Doc. No. 52.) Thus, the Court does not consider these arguments. 10 “To state a substantive due process claim, the plaintiff must show as a threshold 11 matter that a state actor deprived it of a constitutionally protected life, liberty or property 12 interest.” Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008). However, “[t]he Supreme 13 Court has ‘long-eschewed . . . heightened [means-ends] scrutiny when addressing 14 substantive due process challenges to government regulation’ that does not impinge on 15 fundamental rights.” Id. (quoting Lingle, 544 U.S. at 542). As such, “the irreducible 16 minimum of a substantive due process claim challenging land use action is failure to 17 advance any legitimate governmental purpose.” Id. (internal quotation marks and citation 18 omitted); Matsuda v. City and Cty. of Honolulu, 512 F.3d 1148, 1156 (9th Cir. 2008) 19 (“[S]tate action which neither utilizes a suspect classification nor draws distinctions among 20 individuals that implicate fundamental rights will violate substantive due process only if 21 the action is not rationally related to a legitimate governmental purpose.”) (internal 22 quotation marks omitted). The Ninth Circuit has described a plaintiff’s burden on such a 23 claim as “exceedingly high.” Shanks, 540 F.3d at 1088. Moreover, “there is a due process 24 claim where a ‘land use action lacks any substantial relation to the public health, safety, or 25 general welfare.’” N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 484 (9th Cir. 2008) 26 (quoting Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 856 (9th Cir. 2007)). 27 Here, Plaintiffs’ substantive due process claim is not premised on an allegation that 28 the County’s actions impinged on their fundamental rights. Rather, Plaintiffs contend the 1 County used its ability to impose a conditional use permit on the Project as a pretext to 2 effectuate a private taking. As previously discussed above, to maintain a substantive due 3 process claim for a private taking, “a plaintiff must allege: (1) the government’s action was 4 “arbitrary, irrational, or lacking any reasonable justification in the service of a legitimate 5 government interest”; and (2) the government’s actions deprived them of a protected 6 property interest. Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 962 (9th Cir. 7 2011) overruled on other grounds by Knick v. Township of Scott, 139 S. Ct. 2162 (2019). 8 Next, “[i]f it is ‘at least fairly debatable’ that the decision to [require the acquisition 9 of easements] was rationally related to legitimate government interests, the[n] 10 [Defendants’ action] ‘must be upheld.’” Christensen v. Yolo Cnty. Bd. of Sup’rs, 995 F.2d 11 161, 165 (9th Cir. 1993) (quoting Nelson v. City of Selma, 881 F.2d 836, 839 (9th Cir. 12 1989)). 13 Defendants present extensive evidence indicating they acted in good faith in an effort 14 to advance legitimate governmental interests—namely, that they were concerned with the 15 safety of persons evacuating on West Lilac Road during a wildfire, and that they required 16 the easement condition to address wildfire evacuation concerns. For example, Defendants 17 have offered sufficient evidence that due to substantial fuel along West Lilac Road, a main 18 area evacuation route, these areas would pose a significant risk of entrapping those in the 19 area during a wildfire evacuation, were the Project to be implemented. (Doc. No. 36-1 at 20 22–23; Declaration of Anthony Mecham (“Mecham Decl.”), Doc. No. 36-8, ¶¶ 12–15; 21 Doc. No. 36-3 at 262, 265, 405–409.) Specifically, there are currently approximately 22 eighty-one residences located along West Lilac Road. (Doc. Nos. 36-1 at 22–23, 36-3 at 23 265.) However, the Project proposes to add approximately 5,000 residents and over 3,000 24 vehicles to the area, not including those staying at the proposed hotel or senior care center, 25 or visiting the retail and commercial area, which creates a risk of entrapment along West 26 Lilac Road during a wildfire evacuation. (Id.) Moreover, County Fire determined that 27 before supporting the Project, vegetation management on West Lilac Road was necessary 28 to make the Project safe for current and future residents because the addition of over 3,000 1 cars to the area from the Project would cause substantial traffic congestion on West Lilac 2 Road during a wildfire evacuation, which, coupled with the presence of brush along West 3 Lilac, would present a risk of people becoming entrapped in their vehicles during an 4 evacuation. (Doc. No. 36-1 at 10.) 5 Under Koontz, Nollan, and Dolan, “the government may choose whether and how a 6 permit applicant is required to mitigate the impacts of a proposed development,” so long 7 as it does “not leverage its legitimate interest in mitigation to pursue governmental ends 8 that lack an essential nexus and rough proportionality to those impacts.” Koontz, 570 U.S. 9 at 605. 10 Plaintiffs’ contention that the County’s fire risk concerns were not legitimate merely 11 because the County’s evacuation time analysis differed from that of Plaintiffs’ and failed 12 to consider Plaintiffs’ alternative proposals to the easement condition do no more than 13 present the type of “‘run of the mill dispute between a developer and a town planning 14 agency’ that fails to implicate concerns about due process deprivations.” Teresi Invs. III v. 15 City of Mountain View, 609 Fed. Appx. 928, 930 (9th Cir. 2015); Creative Env’ts, Inc. v. 16 Estabrook, 680 F.2d 822 (1st Cir. 1982); Stubblefield Constr. Co. v. City of San 17 Bernardino, 32 Cal. App. 4th 687, 711–12 (1995). Plaintiffs have not met the “exceedingly 18 high burden” required to show the Board or the County behaved in a constitutionally 19 arbitrary fashion, Matsuda, 512 F.3d at 1156, nor have they established that Defendants’ 20 easement requirement, or the denial of the Project, was arbitrary and capricious. Rather, 21 Defendants’ decision was rationally based on the perceived undue risk of entrapment to 22 nearby residents during a wildfire evacuation. Plaintiffs have not presented evidence 23 adequate to permit a reasonable fact finder to decide that the County’s motivations for 24 requiring the easement condition did not include any legitimate concern for public safety. 25 Indeed, the evidence shows the County was motivated in substantial part by safety 26 concerns. Accordingly, the decision to require Plaintiffs to acquire easements did not 27 violate their due process rights. See Teresi Invs. III, 609 Fed. Appx. at 930. 28 /// 1 Accordingly, the Court DENIES Plaintiffs’ motion for summary judgment and 2 GRANTS summary judgment in favor of Defendants as to the fourth claim for relief in the 3 SAC based upon Plaintiffs’ assertion of violation of substantial due process under the 4 Fourteenth Amendment. 5 C. Plaintiffs’ Equal Protection Claim (Claim Three) 6 Plaintiffs further assert Defendants violated their rights under the Equal Protection 7 Clause of the Fourteenth Amendment by imposing a condition for development on 8 Plaintiffs that Defendants did not impose on other, similarly situated development 9 proposals during the same period. (SAC ¶ 120.) 10 The Equal Protection Clause of the Fourteenth Amendment provides that “No State 11 shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. 12 Const. amend. XIV, § 1. “When an equal protection claim is premised on unique treatment 13 rather than on a classification, the Supreme Court has described it as a ‘class of one’ 14 action.” N. Pacifica LLC, 526 F.3d at 486 (citing Village of Willowbrook v. Olech, 528 15 U.S. 562, 564 (2000) (per curiam)). To succeed on this kind of “class of one” equal 16 protection claim, Plaintiffs must demonstrate that Defendants “(1) intentionally (2) treated 17 [Plaintiffs] differently than other similarly situated property owners, (3) without a rational 18 basis.” Gerhart v. Lake Cnty., 637 F.3d 1013, 1021–22 (9th Cir. 2011). 19 Defendants argue that class-of-one equal protection claims do not arise out of 20 exercises of discretion based on subjective, individualized determinations. (Doc. No. 40 at 21 31.) In Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012), the Ninth Circuit stated “[t]he 22 class-of-one doctrine does not apply to forms of state action that ‘by their nature involve 23 discretionary decisionmaking based on a vast array of subjective, individualized 24 assessments.’” (quoting Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 603 (2008)). 25 The Ninth Circuit further noted in Towery that the class-of-one theory is inapplicable only 26 “[a]bsent any pattern of generally exercising the discretion in a particular manner while 27 treating one individual differently and detrimentally.” Id. at 660–61 (emphasis in original); 28 see Prime Healthcare Servs., Inc. v. Harris, 216 F. Supp. 3d 1096, 1117 (S.D. Cal. 2016). 1 In Las Lomas Land Co. v. City of Los Angeles, 177 Cal. App. 4th 837 (2009), the 2 California Court of Appeal held the class of one equal protection theory was inapplicable 3 to the city’s decision to deny approval of the plaintiff’s proposed development project, 4 which “presented complex urban planning and land use issues.” Id. at 860. The California 5 Court of Appeal explained: “The decision whether to approve a project of this sort 6 ordinarily would involve numerous public policy considerations and the exercise of 7 discretion based on a subjective, individualized determination.” Id. 8 Here, like the city’s decision in Las Lomas Land Co. to deny approval of the 9 plaintiff’s proposed development project, the County’s decision on this case involved 10 “numerous public policy considerations and the exercise of discretion based on [the] 11 subjective, individualized determination[s].” 177 Cal. App. 4th at 860. The San Diego 12 County Board of Supervisors based their decision on the Environmental Impact Report, 13 reviewed and considered by the Planning Commission, and County Fire’s 14 recommendations. (Doc. No. 37-7 at 195.) Additionally, the Board noted the Project was 15 inconsistent with the General Plan and would not minimize the population exposed to 16 wildfire hazards. (Id. at 196.) The Board ultimately rejected Plaintiffs’ project after it 17 explicitly found “the Project has not implemented measures that reduce the risk of 18 structural and human loss due to wildfire and is inconsistent with [the] General Plan 19 Policy[.]” (Id. at 196–97.) As such, the Court finds the class-of-one doctrine is inapplicable 20 here. 21 Defendants further contend that even if a class-of-one equal protection claim did 22 apply, Plaintiffs cannot prove the second and third elements of their claim. (Id.) 23 Specifically, they argue Plaintiffs cannot prove the County treated Plaintiffs differently 24 than other similarly situated property owners, or that the County lacked a rational basis for 25 the easement condition. (Id.) 26 Here, there is a genuine issue as to a material fact regarding whether Plaintiffs were 27 treated differently than other similarly situated developers. Plaintiffs have identified other 28 allegedly similarly situated development projects (Valiano, Harmony Grove Village South, 1 || Newland Sierra, Village 14, and Village 13), to which Howard Windsor, Plaintiffs’ fire 2 || protection consultant, opined the Project had a lesser proportion of their land in “County 3 || Fire Hazard Severity Zones” as compared to allegedly similar projects. (Doc. No. 41-3 at 4 ||38.) However, as noted by Defendants, Plaintiffs admit each GPA is unique, and that no 5 GPA project is the same. (Declaration of Mark Slovick, Doc. No. 36-6, 4 3; Deposition 6 Jon Rilling, Doc. No. 40-12 at 398-99.) Defendants contend the County analyzed the 7 || Project using the same process it uses on every General Plan Amendment (“GPA”) project, 8 that because each GPA project is unique, there are no similarly situated property 9 |}owners. (Doc. No. 40 at 31.) Additionally, Defendants assert there are no other GPA 10 projects that have the same fire and evacuation issues, “such as a nearby canyon with 11 ||} substantial fuels and locations of uninterrupted fuels from that canyon to a main evacuation 12 || route.” Ud.) 13 However, because Defendants have shown the easement condition is rationally 14 || related to the County’s legitimate interest in wildfire evacuation safety, as discussed above, 15 Court DENIES Plaintiffs’ motion for summary judgment and GRANTS Defendants’ 16 || motion for summary judgment as to the third claim for relief in the SAC. 17 || VI. CONCLUSION 18 For all the reasons stated, the Court GRANTS IN PART AND DENIES IN PART 19 || Defendants’ motion for summary judgment and DENIES Plaintiffs’ motion for summary 20 || judgment. 21 22 IT IS SO ORDERED. 23 |!Dated: July 1, 2022 © er : □□ 24 Hon. Anthony J.Battaglia 25 United States District Judge 26 27 28 18