Appeal from the Northern District of California. CV 91-4550-SC. Samuel Conti, District Judge, Presiding
Before: Canby And Noonan, Circuit Judges and Huff,*fn* District Judge.
Appellants Mori Point Development, Inc. and National Investors Financial, Inc. appeal the district court's dismissal of their complaint based on a finding that the action was not ripe. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The appellants bring this action against the City of Pacifica, the City Council of Pacifica, and the individual members of the City Council (collectively "City"). The appellants allege a violation of their substantive and procedural due process rights and a denial of their right to equal protection. The appellants are attempting to develop coastal property in the City of Pacifica, known as "Mori Point." The project initially included plans for a conference center, a commercial center, residential units, and two restaurants. Portions of the area sought to be developed by the appellants is the habitat of the endangered San Francisco Garter Snake.
The attempted development of the area includes the following history. In 1982, residents of the City approved a growth control initiative which required city-wide approval to rezone land zoned as "agricultural." At that time, most of the property in Mori Point was zoned agricultural. In 1984, the appellants' predecessor submitted a ballot proposition ("Measure C") to rezone the property to "Planned Development" and sought approval of a Development Plan for the project. The classification of "Planned Development" is a special classification in which allowable uses are limited to those set forth in the Development Plan. The Development Plan submitted along with Measure C also set forth the specific locations where the particular uses could be built. Measure C provided that the property could not be rezoned from the Planned Development designation without approval of the City's voters.
Voters approved the rezoning and the Development Plan. In November 1984, the City Council of Pacifica adopted an ordinance which rezoned the property and approved the Development Plan.
In August 1986, the appellants' predecessor applied to the City for approval of a specific plan, tentative map, variance, General Plan amendment, and Local Coastal Land Use Plan ("LCLUP") amendment. In December 1986, the City circulated for comments a Draft Environmental Impact Report regarding the project. During 1987 and 1988, the City Planning Commission held four public hearings on the anticipated land uses of the project and the environmental approvals for the project.
In March 1988, the City Planning Commission approved the specific plan, tentative map, variance, General Plan amendment, and LCLUP amendment. The Planning Commission also adopted findings for the certification of the Final Environmental Impact Report. In connection with the approval, the City imposed numerous conditions on the development of the property. These conditions include specifications for the protection of the San Francisco Garter Snake, provision of public beach access, fire and police protection, the hours of operation for heavy machinery, and numerous other conditions.
The appellants' predecessor appealed certain of the conditions to the City Council. Various citizens' groups also appealed the approval of the project. After holding hearings, the City Council denied the appeals, with the exception of the citizens' appeals concerning the proposed residential units as the units related to the protection of the San Francisco Garter Snake. Consequently, in July 1988, the City Council certified the Final Environmental Impact Report; approved the amendment to the General Plan, the tentative map, and the specific plan; and approved the variance as to all aspects of the project, with the exception of the residential proposal. The City Council also recommended to the California Coastal Commission approval of an amendment to the LCLUP. The tentative map and variance approvals were to be valid for two years, until approximately July 1990.
Following this approval, a citizens' group filed suit in state court, challenging the City Council's approval of the Development Plan. This action raised issues regarding the compliance of the project with the California Environmental Quality Act.
In May 1990, the appellants requested a one-year extension of the permits for the tentative map and variance. In July 1990, the Planning Commission denied the request for an extension, and the appellants appealed the denial to the City Council. The City Council disapproved the Commission's denial and granted the appellants a one-year extension, until approximately July 1991.
In April 1991, the appellants sought a stay of the running of the one-year extension for the tentative map and variance. The appellants sought a stay for the duration for the citizens' lawsuit. The Planning Commission denied the request for the stay, and the appellants again appealed to the City Council. In June 1991, the City Council also denied the request for the stay. Consequently, on June 25, 1991, the appellants sought a one-year extension for the tentative map and variance. The application was automatically granted until the earliest of sixty days or a decision on the request. After holding a public hearing, the Planning Commission denied the request for an extension. The appellants again appealed to the City Council.
On August 12, 1991, the City Council denied the request. In support of its denial, the City Council stated, "The City Council finds that the subdivision and variance as currently designed are likely to cause substantial environmental damage and substantially and avoidably injury to wildlife or its habitat." Supplemental Excerpt of Record ("SER") at 2. As an additional "separate and independent ground for denial," the City Council found the appellants had failed to make sufficient progress on the project, contrary to assurances that significant progress would be made. Id. at 3.
Following the City Council's denial of an extension, in November 1991, the appellants filed an inverse condemnation action in state court. On December 30, 1991, the appellants filed this action in federal district court. In July 1992, the state court dismissed the action without prejudice, finding the action was unripe. The state court action, however, is still pending in a petition for writ of mandate. On April 3, 1992, the district court granted the appellees' motion to dismiss, also finding the action was unripe. The appellants then filed a timely notice of appeal to this court.
The appellants raise several arguments on appeal. First, the appellants argue the action fits within the futility exception to the ripeness doctrine. The appellants next argue the district court erred by dismissing the action without affording the appellants an ...