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Property Owner's 1st, 14th Amendment Claims to Get Hearing

A Santa Barbara County property owner has been allowed to pursue a lawsuit alleging that the county violated his rights of free speech, equal protection and due process by giving him a hard time with proposed developments. The Ninth Circuit Court of Appeals upheld a district court decision, which threw out five of the landowners' claims because they were filed too late. However, the Ninth Circuit overturned the lower court with regard to two claims that were not filed too late. The lower court had ruled that they were unripe takings claims, but the appellate panel characterized them as "separate claims supported by allegations of discrete constitutional violations." The appellate panel directed the district court to review the merits of those two claims. The lawsuit was filed by Patrick Nesbitt, who owns property along the coast near Carpinteria. Nesbitt has sought to develop his property in a number of ways and has received 11 county permits since acquiring the property in 1994. The litigation apparently stems from conflicts between Nesbitt and the county over the size of a residence he wants to construct and a polo field. The county has proposed numerous conditions on the residence, has told Nesbitt to apply for a major conditional use permit for the polo field, and has threatened to levy $25,000-per-day fines if he plays polo without obtaining the permit. Nesbitt claimed that the more he spoke out in public forums, including to local newspapers, about the county, the county increased conditions and restrictions on his property and delayed permitting thereby violating his First Amendment rights. He also argued that his right to equal protection of the law was violated because the county did not impose the same conditions on similarly situated property owners. And he contended his right to due process had been violated because the county subjected his plans to a local review committee and because biased decision-makers had been motivated by retaliation. Nesbitt cited a number of actions by the county to support his position. However, all but two of the actions occurred more than a year before he filed his lawsuit, and the statute of limitations was one year, according to both the district court and the Ninth Circuit. Two contentions, however, were not barred by the statute of limitations: That the county wrongly required Nesbitt to apply for a major conditional use permit and then failed to act on the application, and that the county attached discriminatory conditions to his residential building permit. The district court determined these two contentions were "as applied" takings claims, and the court ruled that they were not ripe for court review because the county had not rendered final decisions. But the appellate court disagreed. "If, as Nesbitt alleged, the county's requirements, conditions, delays and fees were imposed in retaliation for his exercise of his First Amendment rights to publicly criticize the county and to access the courts, Nesbitt suffered harm thereby and did not have to await further action by the county," the court ruled. The same theory applies to Nesbitt's equal protection and due process claims, the court ruled. "[H]is challenge is to the procedure he had to endure to get those permits. Even if the county relented today and issued all of the permits Nesbitt has applied for, he still would have been injured by the treatment he allegedly received and which caused him harm." The Case: Carpinteria Valley Farms v. County of Santa Barbara, No. 01-57218, 03 C.D.O.S. 5504, 2003 DJDAR 6974. Filed June 25, 2003. The Lawyers: For Carpinteria Valley Farms (Nesbitt): A. Barry Cappello, Cappello & McCann, (805) 564-2444. For the county: David Pettit, Caldwell, Leslie, Newcombe & Pettit, (213) 629-9040.
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