Opinion
No. C04-1843 BZ.
September 7, 2004
ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND
Before me is the motion of defendant Contra Costa Health Services Department to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6). Accepting the allegations of the complaint as true, plaintiffs own a vacant lot in Orinda identified as Assessor's Parcel Number 265-070-007 (the "Property"). Complt. ¶ 1. In 1970, the Board of Supervisors of Contra Costa County enacted an ordinance prohibiting the installation of a septic tank on properties located within one-thousand feet of a reservoir or tributary stream. Id. ¶ 5 (the "Ordinance"). The Property is located less than one thousand feet from a tributary covered by the Ordinance, but plaintiffs contend that when the land's topography is taken into account, the distance from the tributary increases to 1800 feet. Id. ¶ 6. On December 17, 2002 plaintiffs applied to Contra Costa County for approval to build a single family residence and to install a septic system on the Property. Id. ¶ 8. On February 11, 2003 Contra Costa County denied the application and on March 13, 2003 plaintiffs' appeal was denied. Id. Plaintiffs initiated this action asserting both facial and as-applied takings claims. Id. ¶¶ 11-15 (allegation that defendants' denial of plaintiffs' application constituted a taking "for public use without just compensation" in violation of their fifth and fourteenth amendment rights); ¶¶ 12-13 (allegation that Ordinance "does not substantially advance a legitimate state interest" and is "arbitrary and cannot be said to rationally advance the state's interest"). Defendants' conduct is also alleged to have violated plaintiffs' equal protection rights. Id. ¶ 14. Plaintiffs seek injunctive and declaratory relief pursuant to 28 U.S.C. § 2201 establishing that defendants' conduct violated plaintiffs' constitutional rights and prohibiting future denials of plaintiffs' application. Id. ¶ 16. Plaintiffs allege in the alternative a claim for inverse condemnation. Id. ¶ 17.
All parties consented to my jurisdiction pursuant to 28 U.S.C. § 636(c).
On July 6, 2004 defendant Contra Costa County Health Services Department moved to dismiss the entire complaint pursuant to Rule 12(b)(6). Defendants contend that plaintiffs' equal protection, takings, and inverse condemnation claims "fail to state a claim upon which relief may be granted on the grounds that no `taking' has been adequately pled, that defendant has not violated the equal protection rights of plaintiffs, that the claims are barred by the statute of limitations applicable to 42 U.S.C. § 1983 which is plaintiffs' exclusive remedy, and that this matter is not `ripe' for adjudication in this court." Mot. p. 2.
On July 21, 2004 defendant City of Orinda joined in defendant Contra Costa Health Services Department's motion to dismiss.
The applicable statute of limitations for actions brought pursuant to 42 U.S.C. § 1983 is two years. Carpinteria Valley Farms Ltd. v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003) (citing Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001)); Hacienda Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651, 655 n. 2 (9th Cir. 2003); Mudd v. McColgan, 30 Cal.2d 463, 468 (1947); Cal. Civ. Code § 335.1 (2003). Defendants never explain how a claim alleged to have arisen in early 2003 is barred by the two year statute when suit was filed in mid-2004. Defendants' motion to dismiss on the grounds that plaintiffs' claims are barred by the statute of limitations is therefore DENIED.
As defendants correctly point out, 42 U.S.C. § 1983 provides the exclusive remedy for claims alleging violations of constitutional rights. Bank of Lake Tahoe v. Bank of America, 318 F.3d 914, 917 (9th Cir. 2003). While not alleged specifically in the complaint, I will assume for purposes of this motion that the complaint is brought pursuant to 42 U.S.C. § 1983, considering that the declaratory relief statute, 28 U.S.C. § 2201, does not confer federal jurisdiction over plaintiffs' claims.
Defendants contend that plaintiffs fail to state a facial takings claim. Motion 2, 5-6. Having reviewed the complaint, I find that plaintiffs plead sufficient facts to state a facial takings claim based on allegations that the Ordinance does not substantially advance a legitimate state interest. Complt. ¶¶ 11-13. Contrary to defendants' arguments, this claim is ripe.Id.; San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095, 1102 (9th Cir. 1998) (citing Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 409-10 (9th Cir. 1996) (facial takings claim based on a failure to substantially advance theory is ripe the instant the challenged ordinance is passed). Moreover, defendants are incorrect in their assertion that in order to maintain this claim, plaintiffs must also allege denial of the economically viable use of their Property. Sinclair, 96 F.3d at 406 (plaintiff states a facial takings claim by alleging that challenged regulation either fails to substantially advance a legitimate state interest, or denies plaintiff the economically viable use of their land) (emphasis added).
To the extent that plaintiffs allege that the Ordinance as-applied constitutes a taking without just compensation, the claim is not ripe. Complt. ¶ 11; Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985); see also Yee v. City of Escondido, 503 U.S. 519, 534 (1992). Under Williamson, prior to bringing a federal as-applied takings claim a plaintiff must show that (1) "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue," and (2) the claimant sought "compensation through the procedures the State has provided for doing so." Id. at 186. Neither the complaint nor the moving papers address whether the March 13, 2002 denial of plaintiffs' appeal was a "final decision" underWilliamson, or whether plaintiffs could have sought a variance from the Ordinance. Assuming arguendo that plaintiffs received a "final decision", plaintiffs do not allege that prior to bringing their claims in federal court, they sought "compensation through the procedures the State has provided for doing so."Carson Harbor Village, Ltd. v. City of Carson, 353 F.3d 824, 826-27 (9th Cir. 2004) (explaining that government action does not become a taking until the property owner has been denied "just compensation") (citations omitted); Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686 (9th Cir. 1993). Plaintiffs as-applied takings claim is therefore unripe and is DISMISSED with leave to amend. Plaintiffs' third cause of action for Inverse Condemnation, which plaintiffs concede is not ripe (Opp. 2:1-2), is likewise DISMISSED. If plaintiffs believe they can allege a ripe claim, they may amend.
This order does not address whether the statute of limitations may bar plaintiffs from re-filing this claim in the event that it overcomes the ripeness barrier.
Plaintiffs' also fail to state a claim for violation of the Equal Protection Clause of the Fourteenth Amendment. See Complt. ¶ 14 (alleging that "Contra Costa County's moratorium ordinance constitutes a violation of plaintiffs' equal protection rights under the Fourteenth Amendment to the United States Constitution . . ."). To state an equal protection claim where, as here, a government's action does not involve a suspect classification or implicate a fundamental right, plaintiffs must allege that they have been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976).
In their complaint, plaintiffs recognize the legitimate state interest in preserving a clean water supply. Complt. ¶ 10 ("[p]laintiffs do not dispute that [the Ordinance] is intended to advance a legitimate state interest"). They argue, not always clearly, that the one-thousand foot barrier does not advance the legitimate interest because the topography causes some properties located outside of the one thousand foot barrier to pollute more than those located within the Ordinance's limit. Plaintiffs also argue that the failure to recognize advances in septic tank technology renders the Ordinance "arbitrary". Conspicuously absent from the complaint are any allegations that plaintiffs have been treated differently from other similarly situated property owners. Statements in their opposition that defendants "have now approved certain applicants who are more subject to the ordinance restrictions, while they have arbitrarily and irrationally denied these plaintiffs' applications for permits which appear to be within the qualifying criteria of the ordinance", does not cure deficiencies in their complaint. Opp. 2:2-6. Therefore, plaintiffs' equal protection claim is DISMISSED with leave to amend.
The complaint somewhat inconsistently also alleges that, "[i]t is undisputed that the regulation substantially advances a state interest, indeed one shared by the plaintiffs themselves, namely the preservation of a clean water supply." See Opp. 8:3-4.
For the foregoing reasons, IT IS HEREBY ORDERED that defendants' motion to dismiss is GRANTED IN PART. Plaintiffs' as-applied takings claim, inverse condemnation claim, and equal protection claim are DISMISSED with leave to amend. IT IS FURTHER ORDERED that if plaintiffs wish to amend their complaint, they must do so no later than October 8, 2004.