DocketNumber： Case No. 16-cv-02319-RS
Citation Numbers： 208 F. Supp. 3d 1095
Judges： Seeborg
Filed Date： 9/26/2016
Status： Precedential
Modified Date： 7/25/2022
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PETITION AND COMPLAINT
I. INTRODUCTION
This suit is the latest development in an on-going land-use dispute between Plaintiff AIDS Healthcare Foundation, Inc. (“AHF”) and the City of San Francisco (“the City”). AHF claims it was unconstitutionally targeted by San Francisco city legislators for taking a public and unpopular position in opposition to a HIV/AIDS medication known as pre-exposure prophylaxis (“PrEP”). AHF avers that, in retaliation for its stand on PrEP, the city legislators passed new zoning rules to delay its proposed building project in the Castro neighborhood. AHF previously sued the City in a related case alleging the new zoning rules violated its constitutional rights. The Court dismissed that complaint with leave to amend. AHF then requested a stay to seek conditional use authorization from the San Francisco Planning Commission in order to proceed with its project under the new rules.
On January 28, 2016, the Planning Commission disapproved AHF’s conditional use application. In response, AHF filed this new complaint and petition. AHF argues that the Planning Commission acted unconstitutionally and abused its discretion in denying its conditional use application. Defendants move to dismiss on the basis that AHF’s state-law claim is barred by the statute of limitations and the doctrine
II. FACTUAL BACKGROUND
The background of this dispute was described in detail in this Court’s January 21, 2015 order granting the City’s motion to dismiss AHF’s first amended complaint in AIDS Healthcare Foundation, Inc. v. City and County of San Francisco, et al., No. 14-ev-03499 (“related case”). There, AHF challenged the constitutionality of the new zoning rules (“Interim Controls”). The City moved to dismiss and the Court granted that motion because AHF failed to satisfy its pleading burden and exhaust administrative remedies. AHF filed a second amended complaint, which the City again moved to dismiss. While the second motion to dismiss was pending, the parties agreed to stay the case so that AHF could apply for conditional use authorization under the Interim Controls, which AHF did on May 20, 2015.
On January 28, 2016, the Planning Commission disapproved AHF’s conditional use authorization application in Motion No. 19533 (“the Motion”). The Motion provides:
APPEAL AND EFFECTIVE DATE OF MOTION: Any aggrieved person may appeal this Conditional Use Authorization to the Board of Supervisors within thirty (30) days after the date of this Motion No. 19553. The effective date of this Motion shall be the date of this Motion if not appealed (after the 30-day period has expired) OR the date of the decision of the Board of Supervisors if appealed to the Board of Supervisors.
Def.’s Request for Judicial Notice (“RJN”), Ex. A.
III. LEGAL STANDARD
Federal courts maintain limited jurisdiction and possess only power authorized by Article III of the United States Constitution and statutes enacted by Congress. See, e.g., Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). The party asserting jurisdiction bears the burden of establishing that subject matter jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The role of the federal courts “is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While “detailed factual allegations” are not required, a complaint requires sufficient factual averments to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. “[WJhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint has not shown that the pleader is entitled to relief. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
IY. DISCUSSION
Defendants argue that the Complaint should be dismissed for three reasons: (i) pursuant to Cal. Gov. Code § 65009, AHF’s action challenging the disapproval of its conditional use application should have been—and was not—filed within ninety days of the Planning Commission’s decision; (ii) AHF did not appeal the disapproval of its application to the Board of Supervisors and thus failed to exhaust its administrative remedies; and (iii) AHF’s Section 1983 claim is barred by res judica-ta. Each argument is addressed separately below.
A. Statute of Limitations
Defendants contend that Section 65009 of the California Government Code bars this action.
[N]o action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision:...
(E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.
(F) Concerning any of the proceedings, acts, or determinations taken, done, or made prior to any of the decisions listed in subparagraphs (A), (B), (C), (D), and (E).
They further rely on subdivision (e), which provides: “Upon the expiration of the time limits provided for in this section, all persons are barred from any further action or proceeding.” Section 65009 is strictly construed, such that “service is untimely even if it is only one day late[J” Beresford Neighborhood Assn. v. City of San Mateo, 207 Cal.App.3d 1180, 1187, 255 Cal.Rptr. 434 (1989).
AHF argues that the Planning Commission’s disapproval of its conditional use
AHF’s argument is illogical and adopting it would undermine the statutory purpose of Section 65009. The language of Section 65009 is broad. It covers “any decision” on the “matters listed” in Sections 65901 and 65903. That Section 65009(c)(1)(E) incorporates by reference decisions on “the matters listed in Sections 65901 and 65903” suggests that the Legislature intended Section 65009 to reach the “matter” of conditional use applications. Moreover, Section 65901 refers to the exercise of “powers granted by local ordinance” and Section 65903 similarly refers to procedures “provided by local ordinance.” The San Francisco Planning Code authorizes the Planning Commission to “hear and make determinations regarding applications for the authorization of conditional uses.” S.F. Planning Code §§ 303(a), 303.1(d). Likewise, the Planning Code authorizes the Board of Supervisors to review any “final determination by the Planning Commission on an application for conditional use authorization may be appealed to the Board of Supervisors” and “overturn the Commission’s approval or denial of a conditional use.” Id. §§ 303(f)(4), 316.6.
AHF argues that the Legislature specifically intended to exclude decisions by the Planning Commission from Section 65009(c)(1)(E) because that section does not incorporate by reference Section 65902, which discusses the authority of the Planning Commission. Specifically, Section 65902 provides: “In the event that neither a board of zoning adjustment or the office of a zoning administrator has been created and established, the planning commission shall exercise all of the functions and duties of said board or said administrator.” AHF interprets the omission of Section 65902 in Section 65009(c)(1)(E) as evidence that the Legislature did not intend to make Planning Commission decisions subject to the 90-day rule. Instead, AHF argues, the Legislature intended to include only decisions by the zoning administrator, which are covered by Section 65901, or the board of appeals, which are covered by Section 65903. Yet, the substance of Section 65902 is different from the substance of Sections 65901 and 65903. Whereas Sec
Other courts have rejected the notion that the reviewing body, rather than the underlying decision being reviewed, determines the applicability of Section 65009. See, e.g., Stockton Citizens for Sensible Planning v. City of Stockton, 210 Cal.App.4th 1484, 1492, 149 Cal.Rptr.3d 222 (2012) (finding “no question” that the city’s Community Development Department Director was acting as the zoning administrator for purposes of Section 65009 where the city council, by local ordinance, vested him with the authority to review development projects); Royalty Carpet Mills, Inc. v. City of Irvine, 125 Cal.App.4th 1110, 23 Cal.Rptr.3d 282 (2005) (applying Section 65009 to bar a petition challenging decision by city council that overturned planning commission’s denial of conditional use permit.); Wagner v. S. Pasadena, 78 Cal.App.4th 943, 93 Cal.Rptr.2d 91 (2000) (applying Section 65009 to bar a petition challenging city council’s affirmation of planning commission’s grant of conditional use permit).
Honig v. San Francisco Planning Dept., 127 Cal.App.4th 520, 25 Cal.Rptr.3d 649 (2005) is instructive. There, real parties applied for a zoning variance and a building permit. The zoning variance was approved. Appellant, a neighbor of the applicant, filed a request with the planning commission for discretionary review of the building permit. The planning commission denied appellant’s request and the department of building inspections subsequently issued the building permit. Appellant appealed the issuance of the building permit to the board of appeals, which upheld the permit. Appellant then filed a petition for writ of administrative mandate. The court sustained the respondent’s demurrer to the petition on the grounds that it was time-barred pursuant to Section 65009. The court of appeal considered whether the petition was subject to Section 65009. It noted that, “[b]y its terms, Section 65903 only lists a board of appeal’s determination of an appeal from ‘the board of zoning adjustment or the zoning administrator.’ ” Id. at 527, 25 Cal.Rptr.3d 649. In that case, however, the board of appeals decision did not originate with the zoning board or the zoning administrator. Instead, it originated with the planning commission. The court of appeal found that Section 65009 still applied. It reasoned: “The attack on the building permit is, in reality, nothing more than a challenge to the variance.” Id., at 528, 25 Cal.Rptr.3d 649. It explained that “[t]he decision of the board of appeals upholding the building permit therefore involved issues of zoning and planning... [I]t would exalt form over substance to refuse to apply that section....” Id.
Similarly, in Guru Nanak Sikh Society v. County of Sutter, 326 F.Supp.2d 1128 (E.D. Cal. 2003), the court applied Section 65009 to bar an action challenging a county’s denial of the plaintiffs conditional use application. The plaintiff brought a claim for judicial review under Cal. Code Civ. Proc. § 1094.5 and defendants moved to dismiss on the basis that more than ninety days passed between the determination of the board of supervisors and the filing of the complaint. There, like here, the plaintiff argued that the statute of limitations applies only to grants of conditional use permits, not to denials of such permits. The court disagreed, finding that “[t]he
In construing a statute, the Court seeks to implement the legislative purpose. Here, “[t]he clear legislative intent of this statute is to establish a short limitations period in order to give governmental zoning decisions certainty, permitting them to take effect quickly and giving property owners the necessary confidence to proceed with approved projects.” Ching v. San Francisco Bd. of Permit Appeals, 60 Cal.App.4th 888, 893, 70 Cal.Rptr.2d 700 (1998). AHF disagrees and contends that the purpose of the statute is more limited. It relies on the introductory language of section 65009(a)(1): “The Legislature finds and declares that there currently is a housing crisis in California and it is essential to reduce delays and restraints upon expeditiously completing housing projects.” AHF contends that the statute aims to expedite the completion of approved, housing projects, so the statute of limitations in Section 65009(c)(1)(E) applies only to approved, not denied, permits.
Legislators did enact Section 65009 to hasten the construction of housing to meet a deficit, but housing was only part of their concern. The broad language of Section 65009 reflects a desire to speed developments in general. Introduced in 1983, the bill “create[d] three sets of deadlines for filing and serving lawsuits that challenge local land use decisions...” Enrolled Bill Report for A.B. 998, 2 (Sept. 21, 1983). It created a 120-day limit for challenges to general plans and zoning, a two-year limit for challenges to housing projects, and a 90-day limit for “conditional use permits and variances.” Id. It aimed to “provide certainty in local government land use decisions ...” Id. Indeed, the Legislature emphasized the statute’s wide applicability with a 1987 amendment to remove “housing” from subdivision (a)(2). See Stats. 1987, ch. 218, § 1. Section 65009 now strives to “to provide certainty for property owners and local governments regarding decisions made pursuant to this division” (Cal. Gov. Code § 65009(a)(3)) and thus to alleviate the “chilling effect on the confidence with which property owners and local governments can proceed with projects” (id., § 65009 (a)(2)) created by potential legal challenges to local planning and zoning decisions. Nothing in the statute’s legislative history suggests its limits apply only to approved housing projects, as AHF contends.
For these reasons, Section 65009 is applicable to the Planning Commission’s disapproval of AHF’s conditional use authorization application. The strict construction of Section 65009 does not work an injustice in this case. AHF had thirty days to file its appeal under San Francisco Planning Code section 308.1(b). Had AHF appealed, it would have had another ninety days after a decision by the Board of Supervisors to file this action. AHF suggests in a footnote that the ninety-day clock only started running after the thirty-day period to appeal to the Board of Supervisors expired. The plain language in the Planning Commission’s decision precludes that interpretation. It says: “The effective date of this Motion shall be the date of this Motion if not appealed (after the 30-day period has expired) OR the date of the decision of the Board of Supervisors if appealed to the Board of Supervisors.” Def.’s RJN, Ex. A. The language is unequivocal. AHF has been on notice, since April 28, 2016, of its right to appeal and its deadline for seeking judicial review.
Defendants argue AHF’s state law claim is barred because AHF failed to exhaust available administrative remedies. As noted in the motion denying AHF’s conditional use application, AHF had the right to appeal the Planning Commission’s decision to the Board of Supervisors. Indeed, Section 308.1(a) of the S. F. Planning Code provides: “The action of the Planning Commission.. .in approving or disapproving in whole or in part an application for conditional use authorization ... shall be subject to appeal to the Board of Supervisors.” Section 308.1(b) further provides: “Any appeal under this Section shall be taken by filing written notice of appeal with the Board of Supervisors within 30 days after the date of action by the Planning Commission. The notice of appeal shall be subscribed by either (i) the owners of at least 20 percent of the property affected by the proposed amendment or conditional use or (ii) five members of the Board of Supervisors.” AHF did not appeal.
AHF contends it had no effective administrative remedy, so the exhaustion doctrine does not apply. AHF argues that the available remedy was inadequate because Section 308.1(b) conditions the right to appeal on circumstances outside of the appellant’s control. AHF relies on two cases— Eye Dog Foundation v. State Board of Guide Dogs for Blind, 67 Cal.2d 536, 63 Cal.Rptr. 21, 432 P.2d 717 (1967) and SJCBC, LLC v. Horwedel, 201 Cal.App.4th 339, 135 Cal.Rptr.3d 85 (2011)—rejecting the application of the exhaustion doctrine where there was no effective administrative remedy. Both cases are distinguishable. In Eye Dog Foundation the court held the plaintiff foundation could not have asserted its constitutional claims and sought relief in an administrative procedure because it could not initiate that procedure; only the Attorney General could do so by filing an accusation. 67 Cal.2d at 544, 63 Cal.Rptr. 21, 432 P.2d 717. Similarly, in SJCBC, the court found that petitioners could not have initiated the administrative review that they allegedly were required to exhaust, and the party authorized to do so—the director—did not do so before petitioners sought judicial relief. 201 Cal.App.4th at 349, 135 Cal.Rptr.3d 85.
Here, AHF does not allege that it sought the requisite subscriptions for its notice of appeal but could not collect them due to the conduct of third parties outside of its control. Indeed, there is nothing on the record to show that AHF attempted to comply with the requirements of Section 308.1(b) at all. AHF bears the burden of establishing jurisdiction and fails to do so here. Its complaint does not even cast doubt on the availability of remedies. Moreover, AHF’s argument is belied by the record. Defendants have produced recent Board of Supervisor agendas showing conditional use appeals. See Def.’s Supp. RJN, Exs. A-C. Thus, as a general matter, compliance with Section 308.1(b) is not so difficult as to amount to a denial of the right to appeal.
AHF’s related argument, that its appeal to the Board of Supervisors would have been futile, fails for the same reason. AHF contends that its “sole, unsubscribed” appeal would have been rejected, pursuant to Section 308.1(b). Rather than argue that attempting to secure the subscriptions or argue the appeal would have been futile, AHF maintains the fact that the unsubscribed appeal would have been rejected is reason alone to except this ease from the exhaustion doctrine. For the reasons discussed above, AHF’s futility argument fails.
Amendment would be futile. The failure here is not one of pleading. Instead, the failure is the absence of a viable claim. The
C. Res Judicata
Defendants argue that AHF’s failure to petition for administrative mandamus in a timely fashion is fatal to its constitutional claim under 42 U.S.C. § 1983 (“Section 1983”). They rely on Briggs v. City of Rolling Hills Estates, 40 Cal.App.4th 637, 647, 47 Cal.Rptr.2d 29 (1995). There, the court of appeal affirmed the trial court’s grant of summary judgment in favor of a city in a homeowners’ claim for injunctive relief and damages under Section 1983. The homeowners alleged that a city ordinance was void for vagueness and that the city wrongfully deprived plaintiffs of their constitutional right to use their property. As a condition for permitting a substantial addition to plaintiffs’ house, the city applied the ordinance and required the removal of an unapproved patio. Plaintiffs did not seek judicial review of this condition by administrative mandamus, but instead filed suit. The trial court found that plaintiffs’ constitutional claims based on the ordinance, as applied, were precluded by their failure to challenge the city’s decision directly by administrative mandamus. The court of appeal affirmed based not on the doctrine of “failure to exhaust administrative remedies,” but on “a form of res judicata, of giving collateral estoppel effect to the administrative agency’s decision, because that decision has achieved finality due to the aggrieved party’s failure to pursue the exclusive judicial remedy for reviewing administrative action.” 40 Cal.App.4th at 645, 47 Cal.Rptr.2d 29.
The doctrine of exhaustion of judicial remedies aims to prevent an aggrieved party from avoiding the preclusive effects of an adverse administrative action by forgoing the right to judicial review by failing to proceed in mandate. If the party initially pursues a claim in, an administrative forum in which the party has an adequate opportunity to litigate disputed issues, the party will suffer preclusive effects of an adverse decision or findings in a later action if it fails to seek judicial review of the administrative decision in state court through mandamus.
There are, however, predicates to the doctrine’s application.
Here, it is improper to give preclusive effect to the Planning Commission’s administrative decision with regard to the AHF’s application for conditional use authorization. First, the Planning Commission did not consider the same issue as the one that is currently before the Court. The Section 1983 claim raised by this lawsuit “could not have been before the [Planning Commission] because it was [their] ultimate decision... and the allegedly discriminatory nature of that decision, that gave rise to plaintiffs claims.” Guru Nanak Sikh Soc’y, 326 F.Supp.2d at 1133. As Guru Nanak Sikh Society found “[i]t would be counterintuitive, to say the least, for a federal court to shield local government officials from scrutiny under the Constitution and federal civil rights laws by giving preclusive effect to their allegedly discriminatory decisions. Federal common law does not command such an abdication of judicial responsibility.” Id. at 1134; see also Congregation Etz Chaim v. City of Los Angeles, No. CV 10-1587 CAS EX, 2011 WL 12462883, at *7 (C.D. Cal. Jan. 6, 2011).
Second, even if the claims at issue were the same, it is hardly clear that the Planning Commission’s review was conducted with sufficient safeguards to be equated with a state court judgment. Defendants have made no effort to show that the Planning Commission’s proceedings possessed the indicia of proceedings undertaken in a judicial capacity and, in any event, the allegations of the Complaint do not suggest they did.
V. CONCLUSION
Defendants’ motion to dismiss AHF’s state law claim for a writ of mandate is granted without leave to amend. Defendants’ motion to dismiss AHF’s claim for violation of its constitutional rights, under 42 U.S.C. § 1983, is denied. Yet, as discussed at the September 15, 2016 hearing, AHF’s constitutional claim is dismissed without prejudice. AHF may incorporate that claim into a third amended complaint in the related case, AIDS Healthcare Foundation, Inc. v. City and County of San Francisco, et al., No. 14-cv-03499.
IT IS SO ORDERED.
. The factual background is based on the averments in the Complaint, which must be taken as true for purposes of a motion to dismiss.
. Judicial notice of local laws, resolutions, and records of administrative proceedings is appropriate here. See, e.g., Colony Cove Prop., LLC v. City of Carson, 640 F.3d 948, 954-56 n.3-4 (9th Cir. 2011) (taking judicial notice of undisputed contents of local ordinances and resolutions). Defendants’ requests for judicial notice are granted. See Def.’s RJN Exs. A-D; Def.’s Supplemental RJN Exs. A-C.
. California’s limitation rules apply to state-law claims. See McQuiston v. City of Los Angeles, 564 Fed.Appx. 303, 306 (9th Cir. 2014)
. As a matter of federal common law, preclu-sive effect can only be given to state administrative adjudications if the state proceeding satisfied the fairness requirements outlined in United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). See Miller v. County of Santa Cruz, 39 F.3d 1030, 1032-33 (9th Cir. 1994). In light of California’s incorporation of the Utah Construction standard, the inquiry is whether the administrative hearing met the requirements of California law such that a California court would have accorded the determination preclusive effect. See Eilrich v. Remas, 839 F.2d 630, 633 (9th Cir. 1988), cert. denied, 488 U.S. 819, 109 S.Ct. 60, 102 L.Ed.2d 38 (1988); Takahashi v. Bd. of Trustees of Livingston Union Sch. Dist., 783 F.2d 848, 850-51 (9th Cir. 1986) (detailing the claim preclusive effect of prior judicial and administrative decisions on a later § 1983 claim).