CRAIG R. GRISWOLD and ROBIN GRISWOLD v. CITY OF CARLSBAD, California

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRAIG R. GRISWOLD and ROBIN
GRISWOLD,
Plaintiffs - Appellants,
v.
CITY OF CARLSBAD, California,
Defendant - Appellee.
No. 07-56592
D.C. No. CV-06-01629-WQH
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued May 7, 2009
Resubmitted September 16, 2010
Pasadena, California
Before: RYMER, KLEINFELD and SILVERMAN, Circuit Judges.
We review this case de novo and may affirm on any ground supported by the
record. Serrano v. Francis, 345 F.3d 1071, 1076–77, 1082 (9th Cir. 2003).
FILED
NOV 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

-2-
The Griswolds’ right to vote on municipal assessments was established by
state law, not federal law, so the cases regarding waiver of federal constitutional or
statutory rights do not control. To the extent that their claims are matters of federal
constitutional law, we must apply a case-by-case analysis rather than a categorical
approach. See Lynch v. City of Alhambra, 880 F.2d 1122, 1127–28 (9th Cir.
1989). Under the factors established in Lynch, the Griswolds’ waiver must be
treated as voluntary, and the waiver is not rendered unenforceable as contrary to
the public interest. See id. at 1126–28. A city may condition the receipt of a
building permit upon the acceptance of certain conditions, so long as those
conditions are reasonably related to the burden the proposed building project will
create. See Schott v. City of Kingman, 461 F.2d 593, 593–94 (9th Cir. 1972).
Under County of Imperial v. McDougal, 564 P.2d 14 (Cal. 1977) and
Pfeiffer v. City of La Mesa, 69 Cal. App. 3d 74 (Cal. Ct. App. 1977), narrowed on
other grounds and codified by Cal. Gov’t Code § 66020, the Griswolds’ agreement
to the deferral of the assessments and their construction of the improvements under
their permit effected a valid waiver of their right to challenge the conditions of
their permit. See also Hensler v. City of Glendale, 876 P.2d 1043, 1055 n.9 (Cal.
1994) (“The Legislature has now codified [Pfeiffer’s] rule that one who accepts the

-- 2 of 3 --

-3-
benefits of a permit may not later challenge conditions imposed on or in the
permit.”).
Pfeiffer holds that a landowner cannot “comply with a condition ‘under
protest,’ construct the required improvement, and then maintain an action,”
because “the proper method to test the validity of conditions in a building permit is
a proceeding in mandamus . . . .” Pfeiffer, 69 Cal. App. 3d at 76. Though the
Griswolds seek a remedy for something other than inverse condemnation as was
the case in Pfeiffer, this is a distinction without a difference for the purposes of this
case. Economic disadvantages in litigating the claimed invalidity of permit
conditions before proceeding with construction do not, under Pfeiffer, amount to
compulsion rendering the waiver invalid. See id. at 78.
AFFIRMED.

-- 3 of 3 --