Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1989)

MEMORANDUM^* 

Childers appeals from the district court's June 27, 1989 order granting defendants-appellees' (hereinafter collectively referred to as "the County") motion to dismiss Childers' first amended complaint, without further leave to amend. The district court dismissed his claim for lack of ripeness. We review de novo the propriety of a dismissal for lack of ripeness. Herrington v. Sonoma County, 857 F.2d 567, 568 (9th Cir. 1988), cert. denied, 489 U.S. 1090 (1989).

In August 1988, Childers purchased 270 lots in the Lake Rancho Viejo area of Northern San Diego County, along with the right to acquire the remaining 470 acres in the project. In 1981, the San Diego County Board of Supervisors approved a land use scheme for the area, issuing a specific plan, an approved tentative map, an approved major use permit, a rezoning resolution and a certified environmental impact report. After he purchased the property, Childers sought clarification from the Department of Planning and Land Use (DPLU) of the types of housing permitted under the project documents approved in 1981. The DPLU rendered an administrative decision on September 14, 1988, that factory-built homes, as well as mobile homes, could be built at Lake Rancho Viejo. Third parties appealed the decision to the San Diego County Planning Commission.

Following an evidentiary hearing, the Planning Commission decided that the project documents did not permit factory-built housing. It concluded that the board had approved only a mobile home project for the area and reversed the DPLU's decision.

Childers then filed an action in federal district court alleging that the County's reversal of the DPLU's decision was arbitrary, capricious and irrational and violated Childers' rights to substantive due process, procedural due process, equal protection, civil rights under 42 U.S.C. § 1983, and related state constitutional protections. That action was dismissed for lack of ripeness.

"A constitutional challenge to land use regulations is ripe when the developer has received the planning commission's 'final definitive position regarding how it will apply the regulations at issue to the particular land in question.' " Herrington v. County of Sonoma, 857 F.2d 567, 568-569 (9th Cir. 1988) (quoting MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, reh'g denied, 478 U.S. 1035 (1986)). The district court was correct in holding that the decision was not ripe because Childers had not submitted a plan to the Board of Supervisors seeking permission to place factory-built homes in the disputed area and had not sought a variance to allow such building.

At oral argument, appellant conceded that it had no procedural due process claim, so we need not address whether appellant should be required to seek a variance before bringing such a claim to federal court. For cases involving takings claims and alleged violations of substantive due process, the Supreme Court has required plaintiffs to seek a variance from the applicable zoning before their appeals can be heard in federal court. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186-194 (1985); Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1404-1405 (9th Cir. 1989), cert. den. sub nom. Doody v. Sinaloa Lake Owners Ass'n, --- U.S. ----, 110 S. Ct. 1317 (1990). Such a procedure would yield a final determination of the allowable land uses. From that final decision, a federal court could determine "the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations." Williamson 473 U.S. at 191.

Childers argues that it should not be required to apply for a variance under the "futility exception" to the finality requirement. Under this exception, the requirement of the submission of a development plan is excused if such an application would be an "idle and futile act." Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir.), modified, 830 F.2d 968 (1987). The futility test is not met where a "meaningful application has not yet been made." Kinzli, 818 F.2d at 1455 (citing MacDonald Sommer & Frates v. Yolo County, 477 U.S. 340). Like the Kinzlis, Childers has not applied for a variance, so the futility exception is not available. Kinzli, 818 F.2d at 1455. The futility exception does not save Childers' claim from dismissal for lack of ripeness.

Childers contests the district court's ruling that before coming to federal court, it is required to pursue state remedies which provide for judicial review of administrative decisions by writ of mandate. Ca.Code Civ.Pro. Sec. 1904.5; Temescal Water Co. v. Department of Public Works, 44 C.2d 90, 280 P.2d 1 (1955). Because we decide that Childers' claim is not ripe because of its failure to seek a variance, we need not reach the issue of the adequacy of state remedies.

The district court's judgment is AFFIRMED.