Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 863 F.2d 886 (9th Cir. 1988)

Harvey H. TODA, Plaintiff-Appellant,v.CITY AND COUNTY OF HONOLULU, Defendant-Appellee.

No. 87-2820.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1988.* Decided Dec. 2, 1988.

Before CHOY, O'SCANNLAIN, and TROTT, Circuit Judges.


MEMORANDUM** 

Harvey H. Toda appeals the district court's summary judgment for the City and County of Honolulu ("Honolulu") on the issues of regulatory taking, procedural due process, infringement of contractual rights, and conspiracy. We affirm.

FACTS AND PROCEEDINGS

This action arises out of the change in zoning of real property identified as Tax Map Key Number 9-9-19-01 situated on Welelau Place, Aiea Heights, State of Hawaii. In November of 1942, Honolulu established an "AA" residential zoning for the subject property. In 1963, Toda and his wife purchased the real property as tenants by the entirety. In 1969, Honolulu rezoned the subject parcel to "R-3" residential pursuant to a Comprehensive Zoning Code. In 1981, Honolulu adopted a development plan for the Primary Urban Center which down-designated the parcel to "Preservation." In 1982, the parcel was down-zoned to "P-1" preservation by Honolulu's adoption of Zoning Map No. 7. In 1985, one acre of the subject property was redesignated "Residential" by amendment of the development plan for the Primary Urban Center. In 1986, that one acre portion was rezoned "R-10" Residential by amendment to Zoning Map No. 7.

Toda filed a claim in the district court alleging that Honolulu had violated his constitutional rights: (1) against infringement of contracts; (2) to due process of law; and (3) to just compensation. Each of these claims had various sub-allegations.

At a hearing before Judge Fong, on Honolulu's motion for summary judgment, Toda appeared to withdraw several of his complaints, and the remaining claims were dealt with by way of summary judgment. The order was filed and summary judgment granted to Honolulu on the issues of regulatory taking, infringement of contractual rights, procedural due process, and conspiracy. Toda filed an appeal before the order was filed, but after the hearing, thus, pursuant to Fed. R. App. P. 4(a) (1) and (2), the notice is timely.

DISCUSSION

A district court's entry of summary judgment is reviewed de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir. 1987).

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In addition, when a motion for summary judgment is made and supported as provided by the rules, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Toda here did not set forth any genuine issue of material facts, thus leaving none in dispute. The district court applied the applicable law to the undisputed facts.

The Supreme Court held in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), that a just compensation claim based upon a regulatory taking is not ripe for review by the federal court until the concerned party has: (1) sought and received a final decision by the proper governmental authority responsible for implementing the regulation, id. at 186; and (2) sought and been denied compensation through state procedures. Id. at 195. Such adjudications allow factfinding for which the state agency is particularly qualified, and ensures that the claim is ripe for review. Id.; Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1453-54 (9th Cir. 1987), amended, 830 F.2d 968 (1987), cert. denied, 108 S. Ct. 775 (1988). Toda has never claimed that a development plan of his was rejected by the authorities. Therefore, under Hamilton Bank, this case cannot be considered ripe for review. The district court properly granted summary judgment to the City and County of Honolulu on this matter.

Toda claims that he was denied procedural due process because Honolulu did not inform him of its zoning changes. This circuit has ruled that the enactment of a general zoning ordinance is a legislative act, Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1349-50 (9th Cir. 1982), which does not require procedural due process to anyone affected by it. Texaco v. Short, 454 U.S. 516, 531-38 (1982); O'Neill v. Town of Nantucket, 711 F.2d 469, 471 (1st Cir. 1983). Therefore, the district court properly found that the zoning ordinances about which Toda complains need not have been preceded by notice to the landowners concerning their implementation.

Toda also argues that his purchase of the property and his payment of property taxes vested in him the right to retain the property, zoned as it was when he first purchased it. The zoning regulations established on Toda's property do not constitute a contract between Honolulu and Toda. Therefore, the zoning remained subject to modification. See generally Texaco, 454 U.S. at 532-33.

Therefore, the district court was correct when it held that no constitutional violation of contract had occurred as a result of Honolulu's zoning regulations.

Toda contends that Honolulu conspired to downzone his property so that it could later acquire his property at a reduced value for its use as a sewage facility. Honolulu submitted the affidavits of personnel in charge of sewage station development, Yamashita and Honke, stating that they had no knowledge that Honolulu planned on using Toda's property as a sewage pump station. According to Fed. R. Civ. P. 56(e), Toda was required to set forth specific facts in light of these affidavits. His failure to do so allowed summary judgment on this issue.

Finally, Toda presents a new argument on appeal that the zoning laws violated the Constitution in that they were ex post facto. Even if this court were to hear the claim at this time, it could not grant Toda any relief on this ground. Ex post facto laws only prohibit the application of new punitive measures to a consummated crime. Lindsey v. Washington, 301 U.S. 397, 401 (1937). This court is not presented with an ex post facto claim involving a crime.

CONCLUSION

The district court appears to have dealt with all of the issues before it. Given the multifaceted nature of Toda's allegations, the district court did an admirable job of sifting his contentions so as to separate out and dispose of the above arguments.

We uphold the district court's summary judgment dismissal of all of Toda's claims.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3