Ninth Circuit Speaks to Conditional Use Permit
by Kenneth B. Bley

This summer, the Ninth Circuit handed down its decision in Carpinteria Valley Farms Ltd v. County of Santa Barbara, 334 F.3d 796 (9th Cir. 2003).  Click here for full text.

The case was based on allegations that Santa Barbara County had given the land owner a hard time, in connection with the construction of a house and the use of private property as a polo field, because the owner had been outspoken about his dislike of what the county was doing in controlling land use in the area. The County required a conditional use permit (CUP) for the polo field and imposed several conditions for issuance of the residential building permit.  

The landowner filed suit in federal court, alleging only violations of equal protection and procedural due process, but no takings or substantive due process claims. The District Court threw the action out on the ground that the claims were really as-applied takings claims and were not ripe. The U.S. Court of Appeals for the Ninth Circuit reversed.

This case is interesting for several reasons. First, a landowner actually won in the Ninth Circuit. Second, there was no mention of abstention; the Ninth Circuit actually decided the case on the merits.

Third, the Ninth Circuit held that equal protection and procedural due process claims were not subsumed by the Takings Clause so that the ripeness requirements associated with takings do not apply.

Fourth, the Ninth Circuit did not even mention the fact that there was a property right involved. The CUP was clearly discretionary so the Ninth Circuit's finding that the District Court had erred is tantamount to saying that the property right is in the ownership of the land subject to the CUP. Most of the other Circuits hold (wrongly as far as I am concerned) that there is no property right in a discretionary permit.

Fifth, the Ninth Circuit cited Village of Willowbrook v. Olech in support of its holding that an equal protection claim had been stated without any mention of subjective ill-will.

Finally, although the Ninth Circuit held that a number of related discriminatory actions claims were time barred, they could still be introduced into evidence to show motive and to put the matter in context.

The Ninth Circuit's ruling in Carpinteria Valley Farms, while a bit surprising, is nevertheless a welcome development. Often bedeviled by the litany of issues cited above, property owners achieved a victory of sorts from an unexpected source. Time will tell whether or not the Ninth Circuit's holding was a complete anomaly or whether property owners actually stand a chance before the Ninth Circuit. [ return to top ]