Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^* 

Gregory, Elmer and Robert Taylor appeal the district court's grant of summary judgment in favor of the County of Sonoma on the Taylors' claim under 42 U.S.C. § 1983, in which they sought damages, compensation, and declaratory and injunctive relief from the County's alleged impairment of the value of certain pieces of property that they owned. They had claimed below that the County's refusal to grant them the permits that would allow them to use the land in the way they planned constituted a taking of their property without just compensation. They also claimed that the way in which the County processed their applications for these permits violated their due process and equal protection rights.

The claim that the application of a regulation constitutes a compensable taking "is not ripe until the land owner has received a final decision regarding how it will be allowed to develop its property." Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir. 1989). The same finality requirement applies to a due process challenge to land use regulations. Williamson County Regional Planning v. Hamilton Bank, 473 U.S. 170, 200 (1985). It also applies to a claim that such regulations violate the equal protection clause. Shelter Creek Development Corp. v. City of Oxnard, 838 F.2d 375, 379 (9th Cir. 1988), cert. denied, 488 U.S. 851 (1989). Thus, as a threshold matter, we must determine whether the Taylors' claims are ripe by looking to the finality of the County's decision concerning the extent of permissible use of their land.

We accept the Taylors' contention that they have met this requirement. For one of the properties in question, the County issued a development permit that would allow less extensive renovation than the Taylors had requested permission to do. It thus rejected the Taylors' proposal insofar as it differed from the final permit that was issued. The County's determination that the other property in question lies in a flood zone had the effect of a final decision precluding the Taylors from carrying out their development plans, for it acted as a signal that any further proposals would be rejected. See Hoehne, 870 F.2d at 535 (where it is clear that further requests for development permits would be futile, land owner need not continue to submit proposals). Therefore, we may proceed to discuss the merits of the Taylors' claims.

We must agree with the district court that the Taylors have not shown a deprivation of an economically viable use of their property that would rise to the level of a taking. The imposition of regulatory ordinances that merely diminish the value of property does not require a municipality to pay compensation to those affected. See, e.g., William C. Haas & Co., Inc. v. City and County of San Francisco, 605 F.2d 1117 (9th Cir. 1979), cert. denied, 445 U.S. 928, reh'g denied, 446 U.S. 929 (1980) (dimunition of property value from $2 million to $100,000 not a taking). The record shows that the Taylors were able to use their properties despite the denial of the development permits. There has thus been no compensable taking. We therefore affirm the district court's grant of summary judgment for the County on the Taylors' takings claims.

We further must agree with the district court that the Taylors' allegations that the County imposed arbitrary procedures upon them are not sufficient to subject the County to liability under section 1983. An entitlement to due process cannot exist by itself; rather, it must attach to an independent liberty or property interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Under California law, the Taylors are not entitled to develop their property without the required permits, and have no right to receive those permits without the County's approval. Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Cal. 3d 785, 791 (1976); Contra Costa Theater, Inc. v. City of Concord, 511 F. Supp. 87 (N.D. Cal. 1980), appeal dismissed and cert. denied, 460 U.S. 1085 (1983). The district court correctly granted summary judgment in favor of the County on the Taylors' due process claim, because the Taylors could point to no liberty or property right to which due process would attach.

The Taylors' strongest argument lies in their equal protection challenge to the County's actions. In their affidavits in opposition to the County's summary judgment motion, they asserted that the County treated their applications for building permits in an usually harsh manner and denied them what it freely and regularly permitted to others. They correctly point out that to prevail in this motion, they needed only to show that there existed some genuine issue of material fact which, if resolved in their favor, would warrant an ultimate judgment for them. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

We must, however, look to the record that was before the district court. The only evidence that the County acted arbitrarily consisted of two nearly identical unsupported statements from the Taylors themselves. They did not specifically identify any other persons similarly situated who had received better treatment, and thus did not counter the County's showing that it followed its usual procedures in dealing with the Taylors' applications. Because the record before the district court showed that the Taylors had not been able to present any evidence to support their argument that they had been the victims of selective enforcement, the district court determined that they would be unable to meet their burden on their equal protection claim. See Contra Costa Theater, 511 F. Supp. at 91 (where plaintiffs do not claim membership in a suspect class or deprivation of a fundamental right, to prove a violation of their equal protection rights they must show that the action complained of is "totally lacking in rational justification or ... patently arbitrary."). Our review is limited to that same record. Fed. R. App. P. 10(a). See Lowe v. City of Monrovia, 773 F.2d 998, 1004 (9th Cir. 1985) (affirming summary judgment against plaintiff on discrimination claim where record before the district court contained assertions of racial disparities in hiring but no statistics to bear out assertions). We find no error in the district court's determination.

The district court correctly found that the plaintiffs could prove no set of facts that would support a judgment in their favor. Summary judgment for the County was therefore proper.

AFFIRMED.