Andrew Contasti; v. City of Solano Beach

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW CONTASTI; et al.,
Plaintiffs - Appellants,
v.
CITY OF SOLANO BEACH,
Defendant - Appellee.
No. 14-55197
D.C. No. 3:09-cv-01371-WQH-
BLM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted February 11, 2016**
Pasadena, California
Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
Plaintiffs Andrew Contasti, Annette Contasti, and Joe Hernandez appeal
from the district court’s entry of judgment in favor of the defendant City of Solana
FILED
MAR 09 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 5 --

Beach. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, vacate in
part, and remand for further proceedings.
I. Due Process
The district court granted the defendant’s motions in limine to preclude
evidence, testimony, or argument relating to the plaintiffs’ procedural and
substantive due process claims. It entered judgment in favor of the defendant on
these claims. We affirm the judgment as to the due process claims.
To obtain relief on a procedural due process claim, even assuming the
existence of a property interest at stake, the plaintiffs must establish a “lack of
process.” Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008) (quoting
Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). Here, the
defendant provided notice of its intent to consider the relevant permit applications,
held a public hearing on the applications, and issued a formal resolution denying
the applications for Lot 10. Thus, plaintiffs’ procedural due process claim fails as a
matter of law.
To obtain relief on a substantive due process claim, assuming the existence
of a cognizable property interest, the plaintiff must show that the government’s
conduct “fail[ed] to advance any legitimate government purpose.” Shanks, 540
F.3d at 1088. Contasti has failed to meet that burden here. The resolution denying
2

-- 2 of 5 --

the Lot 10 application provided a rational explanation for denial of the permit. It
stated that the proposed structure would have been “incompatible with other
nearby development” based on its square footage, particularly taking into account
the impact of Ordinance 357 on future developments. The decision was not,
therefore, “an ‘abuse of power’ lacking any ‘reasonable justification in the service
of a legitimate governmental objective.’” Id. (quoting Cnty. of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998)). The substantive due process claim consequently
fails as a matter of law.
II. Equal Protection
The district court also granted the defendant’s motion in limine to preclude
evidence, testimony, or argument relating to plaintiffs’ equal protection class-of-
one claim. It entered judgment in favor of the defendant on the equal protection
claim. We vacate the judgment in this respect and remand for further proceedings.
The district court concluded that the equal protection claim failed as a matter
of law based on Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012). In Towery, this
Court wrote that “[t]he class-of-one doctrine does not apply to forms of state action
that ‘by their nature involve discretionary decisionmaking based on a vast array of
subjective, individualized assessments.’” Id. at 660 (quoting Engquist v. Oregon
Dep’t of Agric., 553 U.S. 591, 603 (2008)). However, in Towery we went on to
3

-- 3 of 5 --

note that the class-of-one theory is inapplicable only “[a]bsent any pattern of
generally exercising the discretion in a particular manner while treating one
individual differently and detrimentally.” Id. at 660–61.
Here, the plaintiffs have stated a viable class-of-one claim based on the
defendant’s treatment of permit applications for other projects. According to a
declaration submitted by one of the plaintiffs, in the year before they applied for
permits, the defendant approved other developments on the same street as the
proposed Lot 10 development. These developments ranged in size from 4,209
square feet to 4,263 square feet. The proposed development for Lot 10 was 4,387
square feet in size, and the defendant rejected the permit applications for Lot 10
solely because it concluded that the proposed development was too large. The
proposed Lot 10 development was only 3 or 4 percent larger than the other
developments that the defendant had recently approved on the same street. These
facts support an inference that the defendant treated the plaintiffs “differently and
detrimentally” when compared with other permit applicants. Thus, Towery does
not preclude trial of their class-of-one claim.
Each party shall bear their own costs on appeal.
AFFIRMED IN PART, VACATED IN PART; REMANDED FOR
FURTHER PROCEEDINGS.
4

-- 4 of 5 --

5

-- 5 of 5 --