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 ON DEFENDANTS’ MOTION

11 v. FOR RECONSIDERATION 12 COUNTY OF SAN DIEGO; BOARD OF

SUPERVISORS OF COUNTY OF SAN

13 DIEGO; and DOES 1–20, 14 Defendants. 15 16 17 18 19 Presently pending before the Court is Defendant’s motion for reconsideration, which 20 Defendants requested leave to file and which the Court granted during the Pretrial 21 Conference held on October 20, 2022. (Doc. No. 75.) This motion is suitable for 22 determination on the papers and without oral argument in accordance with Local Civil Rule 23 7.1.d.1. Accordingly, the Court hereby VACATES the Pretrial Conference currently set 24 for January 19, 2023 at 2:00 p.m. For the reasons provided in detail below, the Court 25 DENIES Defendants’ motion for reconsideration. 26 I. BACKGROUND 27 Village Communities, LLC is a real estate development entity that owns 28 approximately 608 acres of land in an unincorporated area of San Diego County, California 1 (the “Property”). (Second Amended Complaint (“SAC”), Doc. No. 27, ¶ 1.) The Property 2 is located east of Interstate 15 and south of West Lilac Road, approximately ten miles north 3 of the City of Escondido. (Id. ¶¶ 27–28.) Village Communities purchased the Property in 4 2017 from Accretive Investments, the former developer, and thus became the owner and 5 project applicant. (Id. ¶ 30.) Village Communities and its predecessor proposed to build a 6 housing and mixed-use community on this site, entitled Lilac Hills Ranch (the “Project”). 7 (Id. ¶ 27) Specifically, the Project proposed 1,746 homes, a town center with a fifty-room 8 inn and commercial, retail, and office spaces, a K–8 school, and a senior community center, 9 among other uses. (Id. ¶ 33.) 10 In 2010, the County granted Accretive the “Plan Amendment Authorization” for 11 Lilac Hills Ranch. (Doc. No. 37-1 at 10.) In 2012, Accretive submitted its development 12 application to the County, and the Project underwent environmental and public review 13 between May 2012 and 2015. (Id.) In September 2015, the San Diego County Planning 14 Commission voted to recommend Environmental Impact Review certification and project 15 approval to the Board, subject to modifications. (Id. at 11.) However, later that year, the 16 California Supreme Court issued a decision affecting the 2015 Project’s greenhouse gas 17 emissions analysis, which paused movement on the project. (Id.) 18 In 2016, Accretive placed a modified version of the 2015 Project on the ballot as a 19 voter initiative, but it was rejected by 64% of county voters. (Id.; Doc. No. 36-1 at 5.) In 20 2017, Village Communities overtook the Project and resumed processing the application. 21 (Doc. No. 37-1 at 12.) After acquiring the Property, Village Communities revised the 22 proposed project, working with Defendants’ Planning Department staff to address various 23 concerns. (Id.) Nonetheless, on June 20, 2020, the Board formally voted to deny the project, 24 and Plaintiffs filed suit. (Id. at 26.) 25 This case ultimately concerns wildfire safety, as the Property sought to be developed 26 is in a high-risk area for such disasters. Plaintiffs assert that through its work with Planning 27 Department staff, it revised the Project to mitigate the risk down to acceptable levels 28 consistent with the County’s General Plan, a master zoning document that governs all 1 future development within the County’s boundaries. Despite these revisions, Plaintiffs 2 allege Defendants denied the permit only after Village Communities refused to meet an 3 alleged unconstitutional condition—namely, acquiring “fuel modification easements” from 4 fifty adjacent landowners. 5 A fuel modification easement grants the easement holder the right to enter property 6 and control vegetation on the portion of the property subject to the easement. In the context 7 of wildfires, the permitted entry typically involves destroying and removing vegetation that 8 serves as “fuel” for fires, which can help stop a fire’s spread across a roadway. Here, the 9 main road leading to and from the Project site is a two-lane road called West Lilac Road, 10 which is surrounded to the north and east by an area called Keys Canyon that is 11 characterized by large, dense, flammable brush. (Doc. No. 36-1 at 9.) Particularly of 12 concern, the County Fire Authority (“County Fire”) found that the addition of over 3,000 13 cars from the Project residents, plus additional vehicles from people traveling to and from 14 the Project, would cause substantial traffic congestion on West Lilac during a wildfire 15 evacuation, presenting a risk of people becoming entrapped in their vehicles during an 16 evacuation. (Id. at 10.) Thus, Defendants allegedly required Village Communities to obtain 17 these easements from the individual property owners as a condition for approving the 18 development. 19 Plaintiffs contend Defendants unconstitutionally required Plaintiffs to obtain the 20 easements because (1) the County already had the legal authority the easements supposedly 21 convey, (2) other similar projects have not been subject to the same requirement, and (3) 22 Defendants’ actions were arbitrary and capricious. Plaintiffs assert four claims for relief, 23 each alleging violations of 42 U.S.C § 1983. 24 On July 1, 2022, this Court denied Plaintiffs’ motion for summary judgment and 25 granted in part and denied in part Defendants’ motion for summary judgment, or in the 26 alternative, partial summary judgment (“July 1 Order”). (Doc. No. 55.) Relevant to this 27 memorandum, in the July 1 Order, this Court held there was no legislative act which would 28 preclude Plaintiffs’ takings claim under Nollan/Dolan. (Id. at 9.) As to Defendants’ second 1 defense, the Court held that “while the Supervisors of the Board may have had additional 2 independent reasons for denying the Project, Plaintiffs’ failure to acquire offsite easements 3 was the basis for the motion denying Project approval.” (Id. at 10.) Thus, the Court held 4 that Project denial was not for reasons independent of the easement condition, as discussed 5 further below. 6 During the October 20, 2022 pretrial conference, Defendants requested the Court to 7 reconsider denial of summary judgment and again raised these two defenses of (1) project 8 denial for independent reasons, and (2) the existence of a legislative action, and requested 9 further supplemental briefing on these issues, which the Court granted. The parties 10 submitted their supplemental briefs, (Doc. Nos. 75, 77), and this order follows. 11 II. LEGAL STANDARD 12 Federal Rule of Civil Procedure 59(e) provides that, after entry of judgment, a court 13 may alter or amend the judgment. “[T]he district court enjoys considerable discretion in 14 granting or denying [a Rule 59(e)] motion.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 15 1111 (9th Cir. 2011) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 16 1999) (en banc) (per curiam)). However, because “the rule offers an extraordinary remedy, 17 [it should] be used sparingly in the interests of finality and conservation of judicial 18 resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) 19 (citation and internal quotation marks omitted). As such, a Rule 59(e) motion generally 20 should not be granted absent highly unusual circumstances, 389 Orange St. Partners v. 21 Arnold, 179 F.3d 656, 665 (9th Cir. 1999), such as an intervening change in controlling 22 law, the availability of newly discovered or previously unavailable evidence, or the need 23 to correct a clear error or prevent a manifest injustice, Allstate Ins. Co., 634 F.3d at 1111; 24 see also McDowell, 197 F.3d at 1255 n.4 (finding no abuse of discretion “merely because 25 the underlying order is erroneous, rather than clearly erroneous”). 26 III. DISCUSSION 27 Relevant to this motion, Plaintiffs’ first and second claims allege violations of their 28 rights under the Fifth Amendment’s Takings Clause through (1) inverse condemnation and 1 (2) a temporary taking, on the grounds that the County’s request for offsite fuel 2 modifications is an unconstitutional condition. (SAC ¶¶ 107–117.) 3 In their supplemental briefing, Defendants argue (1) the Board denied the Project for 4 additional reasons independent of the easement condition, and thus Plaintiffs cannot prove 5 causation; and (2) the Board’s rejection of the Project was a legislative action that is not 6 subject to an unconstitutional conditions claim. (Doc. No. 75.) 7 A. Motion for Reconsideration 8 As a preliminary matter, Defendants fail to address the legal standard for motions 9 for reconsideration, and do not provide a basis for reconsideration, such as an intervening 10 change in controlling law, the availability of newly discovered or previously unavailable 11 evidence, or the need to correct a clear error or prevent a manifest injustice. Allstate Ins. 12 Co., 634 F.3d at 1111. Additionally, Defendants fail to show “what new facts or different 13 facts and circumstances are claimed to exist which did not exist, or were not shown, upon 14 such prior application.” CivLR 7.1.i.l. Rather, Defendants merely state that denial of a 15 summary judgment motion is an interlocutory order and thus has the inherent procedural 16 power to reconsider, rescind, or modify the order. (Doc. No. 75 at 5.) Defendants further 17 state they “do not believe that the Court’s ruling denying both parties summary judgment 18 on Plaintiffs’ takings claim definitely ruled against Defendants on defenses two and three, 19 but to the extent the Court believes it did so, the Court has the power to revisit those 20 rulings.” (Id.) 21 Defendants also fail to address Civil Local Rule 7.1.i.2’s requirement that a motion 22 for reconsideration “be filed within twenty-eight (28) days after the entry of the ruling, 23 order, or judgment sought to be reconsidered.” Twenty-eight days from the Court’s July 1 24 Order was July 29, 2022. However, rather than filing a motion for reconsideration within 25 the appropriate time, Defendants requested supplemental briefing on these issues during 26 the pretrial conference on October 20, 2022. Defendants have not raised any additional 27 basis for asking the Court to reconsider its holdings from the July 1 Order. 28 /// 1 B. Defense 2: Whether the Project Denial Was for Independent Reasons 2 As in its motion for summary judgment, Defendants argue that because the Board 3 allegedly denied the Project for multiple reasons independent of the easement condition, 4 no taking occurred. (Doc. No. 75 at 5–10.) Specifically, Defendants assert the Board denied 5 the Project because the majority of the Supervisors (1) were not going to disregard the 6 public vote to reject the proposed Project just four years prior, and (2) found the proposed 7 Project inconsistent with General Plan Policy H-2.1. (Id. at 5–6.) In support, Defendants 8 point to the June 24, 2020 County of San Diego Board of Supervisors Statement of 9 Proceedings and Minute Order, which “[f]ound that th[e] project is inconsistent with 10 General Plan Policy H-2.1, “Development that Respects Community Character.” (Doc. No. 11 36-4 at 18, 45.) Thus, assert Defendants, the “Statement of Proceedings confirm that the 12 Board’s denial was independently based on General Plan Policy H-2.1.” (Doc. No. 75 at 13 7.) However, both documents state Resolution No. 20-078 was also adopted by the Board. 14 (Doc. No. 36-4 at 18, 45.) The adopted resolution was Resolution No. 20-078, “A 15 Resolution of the San Diego County Board of Supervisors Denying General Plan 16 Amendment (GPA) . . . , Zoning Reclassification . . . , Specific Plan . . . , Master Tentative 17 Map . . . , Implementing Tentative Map . . . , Major Use Permit . . . , and Site Plan . . .” 18 which states the Project was inconsistent with the General Plan “based on these significant 19 unresolved fire safety concerns . . . .” (Id. at 49.) In the body of the Resolution, Plaintiffs’ 20 failure to obtain the offsite easements is discussed extensively. (See id. at 48–50.) 21 At the June 24, 2020 County of San Diego Board of Supervisors Meeting, the 22 relevant item on the agenda was for “Recommended denial of Lilac Hills Ranch general 23 plan amendment, specific plan, zone reclassification, tentative maps, major use permit, and 24 site plan, located in the Valley Center and Bonsall Community Plan Areas.” (Id. at 7.) At 25 this meeting, after Cal Fire San Diego Unit Chief Tony Mecham recommended denial of 26 the Project due to Plaintiffs’ failure to acquire the easements, Supervisor Desmond made a 27 “motion to refer the project back to staff for further analysis and allow the applicant 28 additional time to try to resolve fire-related issues . . . .” (Id. at 226.) Thereafter, Supervisor 1 Jacob made a substitute motion “for the staff recommendations which would be to deny 2 the Project. There are two recommendations. The first one is regarding CEQA, and the 3 second recommendation is to adopt the resolution.” (Id. at 248.) This motion was seconded 4 by Supervisor Fletcher, who then stated he “would just add to the staff recommendation . . 5 . to find that the project is inconsistent with the general plan Policy H-2.1, development 6 that respects community character.” (Id.) However, there was no second to Supervisor 7 Fletcher’s add-on/amendment. (See id. at 243–46.) Thereafter, Supervisor Jacob’s motion 8 was restated by the clerk and passed by a majority vote. (Id. at 248.) 9 Defendants assert that because Supervisor Jacob “separately [found] the Project 10 inconsistent with General Plan Policy H-2.1[,]” that denial was not based upon the 11 easement condition. However, Resolution 20-078 was adopted at the meeting alongside 12 the finding “that the project is inconsistent with General Plan Policy H-2.1, “Development 13 that Respects Community Character.” (Id. at 18.) Moreover, as discussed, Supervisor 14 Fletcher’s amendment regarding General Plan Policy H-2.1 was not seconded or voted on. 15 Thus, there is a question as to whether the clerk’s minutes reflecting that the Project was 16 denied in part due to inconsistency with General Plan Policy H-2.1 was in error. 17 Moreover, although there may have been additional independent reasons for denying 18 the Project, Plaintiffs’ failure to acquire offsite easements remains one basis for the motion 19 denying Project approval, as found in the July 1 Order. Defendants admit “Resolution No. 20 20-078 is only part of the Board’s official actions denying the Project” but argue that 21 Koontz is distinguishable because “there was no indication that the defendant water district 22 in Koontz denied the permit at issue for reasons other than the plaintiff’s failure to pay for 23 improvements to district-owned land.” (Doc. No. 75 at 8.) However, Defendants fail to cite 24 any law for the proposition that where multiple reasons are on the record for denial of a 25 project, that the alleged unconstitutional condition is no longer a relevant consideration. 26 Indeed, as argued by Plaintiffs’, the County’s “other reasons” defense is insufficient under 27 the Supreme Court’s unconstitutional conditions doctrine. In Koontz v. St. Johns River 28 Mgmt. Dist., 570 U.S. 595 (2013), the Supreme Court noted that “[e]ven if respondent 1 would have been entirely within its rights in denying the permit for some other reason, that 2 greater authority does not imply a lesser power to condition permit approval on petitioner’s 3 forfeiture of his constitutional rights.” Id. at 608. 4 Defendants further assert that Plaintiffs’ takings claim fails because they cannot 5 prove causation. (Doc. No. 75 at 9.) Specifically, Defendants argue that even without the 6 easement condition, the Project would still have been denied. (Id.) Defendants also argue 7 that because Plaintiffs cannot prove but-for causation, they are not entitled to compensatory 8 damages. (Id. (citing Goss v. City of Little Rock, 151 F.3d 861 (8th Cir. 1998)).) However, 9 these arguments were not raised in Defendants’ motion for summary judgment and are 10 outside the scope of supplemental briefing. As such, the Court declines to consider these 11 new arguments. 12 Based on the foregoing, the Court finds that denial of the Project was not for reasons 13 independent of the easement condition. 14 C. Defense 3: Whether the Board of Supervisors’ Rejection of the Project 15 Was a Legislative Action 16 Next, Defendants assert that because the County could not approve the Project 17 without amending its General Plan or zoning ordinance, the County’s decision was a 18 legislative one which does not give rise to a taking. (Doc. No. 75 at 11.) Defendants point 19 to California’s longstanding law that “[a]dopting or amending a general plan is a 20 quintessential legislative act[,]” as opposed to adjudicative or administrative. Molloy v. Vu, 21 42 Cal. App. 5th 746, 758 (2019). Indeed, “the amendment of a legislative act is itself a 22 legislative act and the amendment of a general plan is thus a legislative act . . . .” Yost v. 23 Thomas, 36 Cal. 3d 561, 570 (1984) (internal quotation marks and citations omitted). 24 “Similarly, the rezoning of land is a legislative act . . . .” Id. “California precedent has 25 settled the principle that zoning ordinances, whatever the size of parcel affected, are 26 legislative acts.” Arnel Dev. Co. v. City of Costa Mesa, 28 Cal. 3d 511, 514 (1980). 27 Courts recognize that “adjudicative” zoning decisions are typically ad hoc, 28 characterized by the exercise of discretion by the city or administrative body. Legislative 1 actions, on the other hand, are characterized by “generally applicable legislation . . . that [] 2 applie[s], without discretion or discrimination,” to every property within the purview of 3 the legislation. San Remo Hotel L.P. v. City of San Francisco, 27 Cal. 4th 643, 645 (2002); 4 see also Ballinger v. City of Oakland, 398 F. Supp. 3d 560, 570 (N.D. Cal. 2019) (holding 5 the plaintiff’s unconstitutional exaction claim failed as a matter of law because it was 6 generally applicable legislation); Better Housing for Long Beach, 452 F. Supp. 3d at 933 7 (positing that for “general land use regulations,” the appropriate test is a Penn Central 8 regulatory takings analysis, rather than Nollan/Dolan scrutiny). 9 Plaintiffs’ permit application filed with the County in January 2018 consisted of: (1) 10 a General Plan Amendment; (2) Specific Plan; (3) Rezone; (4) two Tentative Maps 11 subdividing the parcels; (5) Major Use Permit to operate project wastewater facilities; and 12 (6) Site Plan for Project parks. (Doc. No. 77 at 19.) Plaintiffs first respond that their permit 13 application was to be heard concurrently as a whole as one application and decided at one 14 public hearing and in one final decision, and the application was specific and limited to the 15 Lilac Hills Ranch Project. (Id.) During the pretrial conference and in their supplemental 16 briefing, Defendants rely upon Arnel Development Co., which stood fast to the California 17 precedent that “zoning ordinances, whatever the size of parcel affected, are legislative 18 acts,” 28 Cal. 3d at 514, and thus the Nollan/Dolan unconstitutional conditions claim does 19 not apply. (Doc. No. 75 at 15.) 20 Plaintiffs respond that “[c]ourts treat a government action that consists of a mix of 21 legislative and adjudicatory decisions as adjudicatory.” (Id. (citing Mountain Defense 22 League v. Board of Supervisors, 65 Cal. App. 3d 723, 729 (1977) (“Where . . . an agency 23 in two capacities is simultaneously disposing of two legally required functions with but 24 one decision, review of that determination must be by the more stringent standard.”).) 25 Plaintiffs specifically assert that the Project’s final map stage is an adjudicatory action 26 arising under California’s Subdivision Map Act. (Id. at 20.) Plaintiffs are correct that the 27 “approval of a tentative subdivision map by a local agency is an adjudicatory 28 administrative decision.” Griffis v. Cnty. of Mono, 163 Cal. App. 3d 414, 426 (1985) 1 (emphasis added). “The reason the decision is adjudicatory in nature is that it represents 2 the application of general standards to specific parcels of real property; the decision is 3 therefore determined by facts peculiar to the individual case.” Id. at 426–27; see also 4 Linborg-Dahl Investors, Inc. v. City of Garden Grove, 179 Cal. App. 3d 956, 961 (1986) 5 (applying legal standard for adjudicatory decisions in considering city council’s decision 6 to deny site plan application). 7 Moreover, “where the government makes an adjudicative decision to condition an 8 application for a building permit on an individual parcel[,]” the burden shifts to the 9 government to show its condition is roughly proportional to the burden placed on the permit 10 applicant. Garneau v. City of Seattle, 147 F.3d 802, 811 (9th Cir. 1998). In Dolan, the 11 Supreme Court highlighted that the “the city made an adjudicative decision to condition 12 petitioner’s application for a building permit on an individual parcel,” instead of imposing 13 an “essentially legislative determination[] classifying entire areas of the city . . . .” 512 U.S. 14 at 385; see also Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 546 (2005) (“Both Nollan 15 and Dolan involved Fifth Amendment takings challenges to adjudicative land-use 16 exactions.”); Better Housing for Long Beach v. Newsom, 452 F. Supp. 3d 921, 932 (C.D. 17 Cal. 2020) (same). Courts within the Ninth Circuit have since interpreted Koontz, noting 18 that “the Ninth Circuit and the California Supreme Court have expressly stated that a 19 development condition need only meet the requirements of Nollan and Dolan if that 20 condition is imposed as an ‘individual, adjudicative decision.’” Bldg. Indus. Ass’n—Bay 21 Area v. City of Oakland, 289 F. Supp. 3d 1056, 1058 (N.D. Cal. 2018); see Ballinger v. 22 City of Oakland, 398 F. Supp. 3d 560, 571–72 (N.D. Cal. 2019) (adopting analysis of 23 Building Industry Association). Thus, the “sine qua non” for application of Nollan/Dolan 24 scrutiny is the “discretionary deployment of the police power” in “the imposition of land- 25 use conditions in individual cases.” Ehrlich, 12 Cal. 4th at 869. 26 Here, Defendants utilized their discretion to impose an easement condition in 27 Plaintiffs’ individual case. Thus, because Plaintiffs’ takings claims are predicated on a 28 combination of adjudicative and legislative determinations, and because Defendants “made 1 an adjudicative decision to condition [Plaintiffs’] application for a building permit on an 2 individual parcel,” the Court finds Defendants’ acts amounted to an adjudicative decision 3 under which Nollan and Dolan would apply. 4 D. Remaining Issues 5 Defendants newly assert that denial of the Project defeats Plaintiffs’ takings claim 6 altogether and thus should be dismissed. (Doc. No. 75 at 8.) However, this argument is 7 outside the scope of the Court’s requested supplemental briefing and was not raised in 8 Defendant’s motion for summary judgment. (See generally Doc. No. 36-1.) As such, the 9 Court declines to address this argument. 10 E. Length of Trial 11 Lastly, Defendants assert that precluding these two defenses will not reduce the 12 length of the trial. (Doc. No. 75 at 18.) Specifically, Defendants argue Plaintiffs claimed 13 that trial would take 16 days before the issue of allowing these defenses arose. (Id.) 14 Thereafter, Plaintiffs revised their trial estimate down despite Defendants’ intention to 15 present these defenses. (Id.) Moreover, Defendants argue the time it would take to present 16 the evidence on these two defenses is minimal. (Id.) Plaintiffs respond that the County’s 17 two defenses will prolong the trial because “virtually every County deponent testified 18 extensively on precisely [these] two issues” and there are “numerous exhibits that address 19 these two defenses/issues.” (Doc. No. 77 at 23.) As such, Plaintiffs assert that 20 “[e]limination of such defenses will . . . ensure that the parties’ counsel are able to try this 21 case in the time allotted by the Court.” (Id. at 24.) 22 As a matter of law, the Court has ruled on the issue of these two defenses and finds 23 it unnecessary to waste the jury’s time with adjudicated matters. Therefore, the Court 24 declines to extend the length of trial. Based on the Final Pretrial Conference Order, the 25 Court will set time limits for the trial. 26 /// 27 /// 28 /// 1 |}IV. CONCLUSION 2 For all the reasons stated, the Court DENIES Defendants’ motion for 3 ||reconsideration. The Court moves the Pretrial Conference to February 2, 2023 at 2:00 4 || p.m. and confirms the Motion in Limine Hearing remains set for April 20, 2023 at 2:00 5 || p.m. The jury trial for this case remains set for May 2, 2023 at 8:30 a.m. The Court further 6 ||} ORDERS the parties to: 7 e File a Proposed Pretrial Conference Order in compliance with Local Rule 16 and 8 consistent with the Court’s rulings by January 26, 2023; and 9 e Contact the Magistrate Judge for a Mandatory Settlement Conference forthwith. 10 11 IT IS SO ORDERED. Dated: January 11, 2023 | ZS Zz : Le 13 Hon. Anthony J.Battaglia 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12