Unpublished Disposition, 930 F.2d 920 (9th Cir. 1991)

MEMORANDUM^** 

Charles Ruggles appeals the district court's grant of defendant's summary judgment motion. Ruggles brought suit on a variety of claims challenging a hillside zoning ordinance entitled Measure R which was adopted by the voters of the City of Riverside. We affirm.

* The district court found that it lacked jurisdiction on Ruggles' claims that Measure R created an unconstitutional taking, violated due process, and violated equal protection on the basis that these claims were not ripe. The question of ripeness goes to the district court's subject matter jurisdiction to hear the case. See Shelter Creek Development Corp. v. City of Oxnard, 838 F.2d 375, 377 (9th Cir.), cert. denied, 488 U.S. 851 (1988).

To assert a regulatory takings claim, the plaintiff must establish that there has been "a final and authoritative determination of the type and intensity of development legally permitted on the subject property." MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986). For there to have been a "final and authoritative determination," the plaintiff must have (1) submitted a development plan which was rejected; and (2) sought a variance which would permit uses not allowed under the regulations. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 187-88 (1985); Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir. 1987), cert. denied, 484 U.S. 1043 (1988).

Ruggles failed to take either of these actions. The district court noted that "there is no evidence that Mr. Ruggles made any application, even less a meaningful one, for a determination of the applicability of Proposition R to the property." Therefore, no "final and authoritative determination" had been made. Nor does the futility exception apply because Ruggles has failed to satisfy the requirement of at least one meaningful application. See Kinzli, 818 F.2d at 1455.

Ruggles' taking claim is therefore not ripe. Without a final decision by the City regarding the property, Ruggles' due process and equal protection claims are also not ripe. See id. at 1455-56. These claims were properly dismissed by the district court.

II

The district court also properly granted the defendant's summary judgment motion on Ruggles' claim that Proposition R was unconstitutionally vague. Due process requires that an ordinance give adequate notice of its scope. Grayned v. City of Rockford, 408 U.S. 104, 108 (1971). Economic regulation, however, is subject to a less strict vagueness test. Hoffman Estates v. Flipside, 455 U.S. 489, 498 (1982). This is in part because "the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process." Id.

Proposition R provided notice of possible zoning restrictions. It specified to what property the regulations would apply, and Ruggles had access to the formula used by the city. In addition, the city provided an administrative process that could clarify any uncertainties. We agree with the district court that the Proposition and its implementing formula clearly gave "the person of ordinary intelligence a reasonable opportunity to know what [was] prohibited, so that he [might] act accordingly." Graynard, 408 U.S. at 108. Summary judgment was properly granted on the vagueness claim.

III

The district court also acted correctly in granting summary judgment on Ruggles' claim that the Proposition violated the Contract Clause. As the court noted, the contract clause was intended to prevent the states from altering or eliminating pre-existing contracts. See Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934). Here, because the Proposition was passed five years prior to the formation of the option contract, the contract clause was not implicated.

IV

The City requests that we award it attorneys' fees as prevailing defendants in a 42 U.S.C. § 1983 case. Attorneys' fees should be granted to the defendant only when the action was "frivolous, unreasonable, or without foundation." Hughes v. Rowe, 449 U.S. 5, 14 (1980).

We find this suit to be frivolous. Ruggles allegations stem from his loss of an economic opportunity due to a pre-existing ordinance. Rather than submitting a development plan or seeking a variance, Ruggles abandoned his option and filed suit against the city. The city shall receive its attorneys' fees on appeal.

AFFIRMED.