Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

MEMORANDUM^* 

In Sierra Lake Reserve v. City of Rocklin, No. 89-15371, slip op 8463, 8477 (9th Cir July 9, 1991), we held that to state a claim for violation of substantive due process " [appellant] must show that no rational relationship exists between the vacancy control provision and the purpose of the ordinance." In that case, as in this one, " [appellant] cannot meet this heavy burden. [The government] could reasonably believe that in the majority of cases the ordinance serves the valid public purpose of keeping mobile home rent from becoming prohibitively high. How well the ordinance serves this purpose is a legislative question, one the court will not consider." Id (citations omitted). See also Pennell v. City of San Jose, 485 US 1, 13-14 (1988) (upholding rent control ordinance against claim of due process violation).

The regulation appellant challenges in this case is indistinguishable from the one in Sierra Lake. No substantive due process violation has been alleged; the district court did not err in dismissing the action.

Appellant nevertheless asks us to vacate the judgment and remand so that he may amend his complaint to state a takings claim. But we have no basis for disturbing a judgment that was properly entered by the district court. Appellant must live with his litigation decisions. See RT 8, 11 [ER 37, 40] (suggesting that appellant's failure to state a takings claim was made deliberately for strategic reasons).

Because the takings and the substantive due process theories both turn on the same set of operative facts, see RT 8 [ER 37], the judgment as to the substantive due process claim may preclude any further litigation by appellant based on the vacancy control ordinance. See McClain v. Apodaca, 793 F2d 1031, 1033 (9th Cir 1986). We recognize, however, that appellant may have omitted a takings claim because he had not exhausted state remedies. See Williamson County Regional Planning Comm. v. Hamilton Bank, 473 US 172, 185-97 (1985). We have since held that the developing law in California makes it futile to file a takings claim in state court under the theory announced in Hall v. City of Santa Barbara, 833 F2d 1270 (9th Cir1986). See Sierra Lake, slip op at 8470-71. Because the issue is not before us, we express no opinion as to whether or not appellant is precluded from filing a new action in district court alleging a takings clause violation.

AFFIRMED.