THOMAS F. CASEY III,
Michael P. Murphy, Chief Deputy
(SBN 83887)
Miruni Soosaipillai,
Deputy (SBN 160858)
Timothy Fox,
Deputy (SBN 190084)
Hall of Justice and
Records
400 County Center, 6th
Floor
Fax: (650) 363-4034
H.
Hannig
Law Firm llp
2991 El Camino Real
Telephone: (650) 482-3040
Facsimile: (650) 482-2820
Attorneys for Plaintiffs
Oscar Braun, Andrea Braun
and The Oscar A. Braun Trust Dated 1996
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Pursuant
to the Court’s Pretrial Order and Federal Rule of Civil Procedure 16, the
parties submit this Joint Pretrial Conference Statement.
I. INTRODUCTION
On July 23, 2003,
plaintiffs Oscar Braun, Andrea Braun and the Oscar A. Braun Trust filed this
action for violation of civil rights under 42 U.S.C. § 1983. Plaintiffs’
First Amended Complaint for Violation of Civil Rights includes claims for First
Amendment, Fourteenth Amendment Equal Protection, and Fourteenth Amendment Due
Process violations.[1] The dispute arises out of actions taken by
The County contends that it did nothing more
than require the Brauns to “legalize” their buildings by ensuring proper code
compliance and paying the fees set by ordinance and resolution " and yet
the County’s contention is factually not supported by the administrative record
or published San Mateo County Planning and Building Division fee schedule. The Brauns had agreed to pay the lawful two
times the CDP permit fee of $7440 ( two time the normal permit fee of $3720.). Plaintiffs
contend that the County treated them in a manner that was different from others
similarly situated in retaliation for criticizing the Board of Supervisors
coastal apartheid policies.
The legalization
process culminated in the denial of permits by the San Mateo County Board of
Supervisors on
Plaintiffs
subsequently filed a state court action against the County in state Superior
Court, seeking, among other things, a declaration that the fees were improper
and not required for issuance of the permits for legalization of the various
structures on the property. In
particular, plaintiffs disputed the amount and timing of the fees imposed by
the Board of Supervisors, including the amount and timing of “investigation
fees.” Investigation fees are permit
fees imposed in cases (such as plaintiffs’) where construction is completed
without applying for or obtaining necessary permits, and then permits are
sought after the fact to “legalize” completed structures. The fees are designed to compensate the
County for the additional work involved in investigating and resolving code
violations in completed structures.
The County filed a
cross-complaint for code enforcement relating to the permit violations detailed
above. The state court action was set
for trial in July 2004, but was settled in late June 2004.
Plaintiffs continued
to pursue this action in federal court, alleging that the County’s handling of
this matter violated their civil rights.
II. STATEMENT
OF ISSUES
A. PLAINTIFFS’ LEGAL ISSUES
1. Was retaliation for First Amendment
activities a motivating factor in the
2. If the answer to 1 is “yes,” has the
County met its burden to prove that regardless of any improper motive, the
County would have taken the same course of action?
3. If the answer to 2 is “no,” what is the
amount of damages due to plaintiff?
B. DEFENDANT’S LEGAL
ISSUES
1. Is the Board of Supervisors the “final
policymaker”, under a 42 U.S.C.A. section 1983 analysis, for matters related to
the proceedings with regard to plaintiffs’ property at 1589 Higgins Canyon
Road, unincorporated San Mateo County?
2. Do actions by the Board of Supervisors
require a majority vote of their members to constitute action by the “final
policymaker” for purposes of analysis under 42 U.S.C.A. section 1983?
3. Did the County of San Mateo violate
plaintiffs’ First Amendment rights of free expression by retaliating against
them for their prior exercise of such rights during the process of considering
and acting on permits to legalize unpermitted construction on plaintiffs’
property at 1589 Higgins Canyon Road, unincorporated San Mateo County?
a. Was plaintiffs’ speech “public speech”
protected by the First Amendment?
b.
If the answer to issue 3(a) is yes, did the “final policymaker” know of
plaintiffs’ First Amendment speech?
c.
If the answer to issue 3(b) is yes, was plaintiffs’ speech a substantial
or motivating factor in the decision by the “final policymaker”?
d.
If the answer to issue 3(c) is yes, would the “final policymaker” have
made the same decision regardless of plaintiffs’ First Amendment speech?
e.
If the answer to issue 3(d) is yes, was the decision by the “final
policymaker” pretextual?
III. PLAINTIFF’S POSITION
Summary of
Legal Contentions
Section
1983 of Title 42 of the U.S. Code, enacted by Congress pursuant to § 5 of the
Fourteenth Amendment, creates an action for damages and injunctive relief
against local governmental bodies, including counties, who deprive a plaintiff
of rights, privileges, or immunities secured by the constitution. Section 1983 incorporates the Fourteenth
Amendment, which incorporates the Bill of Rights and applies them to the
states. Constitutional violations actionable
through Section 1983 include violations of the Fourteenth Amendment standing
alone, such as procedural due process or equal protection, or violations of the
Bill of Rights. First Amendment
provisions for Freedom of Speech, Freedom of the Press and Freedom to Petition
are among the rights applicable to the states through the Fourteenth
Amendment.
The Brauns’ contend that the
County, and most particularly its Board of Supervisors, retaliated against them
for exercising their First Amendment right to free speech. Specifically, the Brauns contend that the
The Brauns have been
outspoken critics of the
Specifically, the Brauns
allege that the
·
Rejecting
the ruling and advice of their own Planning Commission and
·
Charging
planning and building permit fees before any investigation had been conducted
to determine what the actual fees should be.
·
Enlarging
the County’s inquiry into the Braun’s property to involve inspections to look
for violations which bore no relationship to existing issues, and doing so after
the Brauns had already engaged in a protracted and arduous permitting process
with the Planning Commission that had finally been resolved.
·
Recording
a second Notice of Violation on the Brauns’ property when the first notice was
already in place, and doing so knowing that this act had the potential to
damage the Braun’s opportunity to enter into a lucrative contract with Sprint.
·
Ultimately
denying the Braun’s permit applications, and issuing an Order of Abatement
directing the Brauns to tear down structures on their property, which Order
indicated that the Brauns would have no further opportunity to legalize said
structures. This denial of permits was
ostensibly done because the Brauns refused to pay fees imposed by the County,
in spite of the fact that those fees were in violation of state law.
The Brauns intend to submit
evidence at trial to substantiate their claims that these acts were done in
retaliation for protected First Amendment activities. The evidence will fall under the following
broad categories:
·
Evidence
of close proximity in time between the Brauns’ political speech and the
County’s various punitive activities against them. Most particularly, the Brauns will establish
that they were involved in a contentious process wherein they staunchly opposed
the COSA/County plan known as the Devils Slide Project contemporaneous with the
Board of Supervisor’s hearing of the appeal on the Braun’s permit application
·
Evidence
suggesting that those who opposed the Brauns’ permit applications were
motivated by a desire to retaliate against the Brauns for protected speech, and
that the County was politically aligned with these opponents, and followed
their unreasonable recommendations regarding the handling of the permit applications.
·
Evidence
that the County’s purported legitimate reasons for treating the Brauns in the
manner that they did are all false and/or pretextual.
·
Evidence
that members of the County’s Board of Supervisors had openly and publicly
censured and criticized Mr. Braun, and expressed personal animosity toward him,
shortly prior to the Board’s rulings regarding the Braun’s permit applications.
·
Evidence
of a financial relationship, in the form of campaign contributions, between
Lenore Roberts, the Braun’s opponent in the permit process, and members of the
Board of Supervisors.
·
Evidence
that the County has admitted under oath that it took measures against the
Brauns that were unprecedented in the County’s history, without any explanation
as to what characteristics of the Braun’s circumstance necessitated such
measures.
The Bauns also contend that
the County’s conduct, from the very first to the very last, has followed a
pattern of retaliation. The Brauns
contend that the retaliation began in 1998 and has continued up through
today. Most recently, the Brauns,
through a local political lobby group, sued the County’s Local Agency Formation
Commission (LAFCO) and obtained a temporary injunction against it. Shortly thereafter, the County settled the
Brauns’ state court Mandamus action, which was filed to compel the County to
issue the Brauns the permits which they contend they should have received in
2002.
In that settlement, the
County promised to issue permits to the Brauns within a certain timeframe. The Brauns contend that the County has
purposefully dragged its feet in performing its obligations under the mandamus
settlement agreement, and has in fact violated the terms of that
agreement. This continued reluctance to
issue the Brauns their permits, close in time to yet another exercise of First
Amendment rights on the part of the Brauns, shows a longstanding pattern of
retaliatory conduct that has permeated this entire six-year process.
Statement of Damages
The Brauns contend that the
County’s activities, and most especially their recording of two Notices of
Violation and a Notice of Abatement without opportunity to cure, which have
clouded the title of the property, have diminished the value of the property
over time, and have made it essentially impossible to sell the property while
the market was stronger. The Brauns also
contend that as a result of the County’s actions, they have lost an opportunity
to enter into a contract with Sprint to permit the leasing of space for relay
towers on their property, which would have resulted in revenues to the Brauns
in the millions over a period of several years.
Finally, the Brauns are seeking general damages for violation of their
civil rights.
The Brauns damages include
the following items:
1. Diminution in the value of their property.
2. Lost revenue opportunities.
3. Costs and expenses associated reappraisal and refinancing of
the property.
4. Emotional distress.
5. Attorney’s fees and costs in prosecuting the Brauns’
administrative mandamus action.
Summary of Facts and Certain
Key Pieces of Evidence
Plaintiffs
Oscar Braun and Andrea Braun (collectively “the Brauns”) are citizens of the State of California,
residing at 1589 Higgins Canyon Road in the unincorporated Half Moon Bay area
of San
Oscar
Braun is the president of the Half Moon Bay Coastside Foundation, aka Save Our
Bay (hereinafter “Save Our Bay”), and the Brauns’ residence serves as the
headquarters for Save Our Bay. Save Our
Bay is a community-based, 501(c)(3) nonprofit, environmental-watchdog,
charitable corporation, which was established at the personal request of the
late United States Secretary of Commerce Ron Brown and was later incorporated
on December 23, 1999. Save Our Bay is a
recognized member and active participant in the NOAA Water Quality Protection
Program aka WQPP, the RWQCB Stormwater Pollution Prevention Program aka STOPPP,
the California Coordinated Resource Management Planning Council aka Coastside
CRMP Council, and the Coastside Fire Safe Council (representing San Mateo
County Coastal Zone which compromises approximately 73% of County’s land area).
Save Our Bay also founded the Half Moon Bay Chapter of the Surfrider
Foundation.
From its location in the heart of the
Through
his work with Save Our Bay, Oscar Braun has actively sought to establish a
comprehensive watershed management program in
Plaintiff
Oscar Braun has long been outspoken on issues of public interest. In addition to being the president of Save
Our Bay, Oscar Braun is also the online publisher of the
Mr. Braun has utilized
these forums under his First Amendment rights of freedom of speech and of the
press as a frequent critic of the Board of Supervisors and various County
practices, policies and programs, including the Devil’s Slide project and the
failure of the County to provide adequate services to coastal residents. He is a frequent speaker before the
On
“In 1998
March 2, 2001, Save Our Bay
received a letter from Joseph W.
Cotchett, Esquire to Oscar Braun and
April 25, 2001 letter to
On
On
In
early December 2001, Lennie Roberts, the Legislative Advocate for the Committee
for Green Foothills and Cynthia Giovannoni, co-owner of Half Moon Bay Sealing
& Paving, filed their Applications of Appeal to the County’s Board of
Supervisors:
As Lennie Roberts’ January
15, 2002 testimony before the Board of Supervisors indicated, since January
1998 to the present time, the Appellants and members of the Coastal Open Space
Alliance (COSA) have published
their political views, ambitions and repeatedly re-defined the nature of
their private sector open space
enterprise partnerships with elected officials of the County of San
Mateo, Mid-Peninsula Regional Open Space District (MROSD) and other public
governmental and regulatory agencies; the Appellant’s publications, public
speech and proclamations clearly reveals the motives behind their relentless
retaliation campaign against the Brauns stable and affordable housing
development permits and the
unconstitutional ( denying Equal Protection & Due Process under the
Fourteenth Amendment) basis for their appeals “under the color of law” can be
reviewed online at COSA cartel members
websites: http://www.GreenFoothills.Org/news/archive.html
, www.OpenSpace.Org , http://www.OpenSpaceTrust.Org
, http://www.Packard.Org/ , http://www.Moore.Org , http://www.Surfrider.Org , http://LomaPrieta.SierraClub.Org/ ; and Save Our Bay v. MROSD Writ of Mandate
e-Administrative Record MROSD Coastal Annexation Project ; or Save Our Bay v.
County of San Mateo LAFCO Writ of
Mandate e-Administrative Record ; in
addition to Oscar Braun and Save Our Bay Devil’s Slide Tunnels Project Coastal
Development Appeal e-Administrative
Record; in letters to the Brauns from COSA
attorneys Joseph W. Cotchett
(Committee for Green Foothills) and Maryann Dresner (Wildlife Associates); in
their multiple letters and comments to the County of San Mateo Planning
Commission; in their hi-profile coordinated appeal letter writing campaign to the County of San Mateo Board of Supervisors
; also in their well publicized online
real estate scheme regarding their
targeted Moon Acres Ranch, the “last missing strategic parcel” of the infamous
Dean & Dean aka Westinghouse 8,000 acre holdings to complete the $200 million
The Appellants decried to
the Board that the content of the EnviroBank Press Releases cites Sprint antennae cellular sites, two water wells and a
helicopter landing area. Based solely
on the contents of these press releases, Appellants asked the Board of Supervisors
to order an investigation to search for new code violations on the Brauns
property that were unrelated to the matter then before the Board. The following are selected quotations from
Appellants’ presentation to the Board:
“The
County has allowed this Applicant to defer payment of the
Violation/Investigation fees until the Building Permit Application stage. The
CDP should not be granted until the outstanding Application
Violation/Investigation fees are paid.”
“The security gate, located adjacent to
“Mr. Braun’s Press Release indicated that the house was approximately
ten thousand square feet structure. Mr. Braun refused to answer a question from
the Planning Commission as to whether the house was built according to the
plans approved by the County. The CDP
should not be granted until the County can verify that the house, as approved
by the County in 1991, was built according to the approved plans.”
“Additionally, Mr. Braun’s Press Release includes reference to an
agricultural well on the property. Is this well being used for domestic
purposes? If so, does it meet water quality standards? The CDP should not be
granted until the adequacy of the well(s) to serve the proposed affordable
housing unit is determined.”
“Condition 15 of the CDP requires that legalization of the septic
system shall occur prior to the issuance of the building permit, and that the
septic system shall meet current setback requirements. This condition should not be left to the
building permit stage, but should be required prior to the issuance of the
CDP….It is also unlikely, given his track record, that Mr. Braun will ever
comply with the requirements in Condition 15, which carries out Mitigation
Measure Number 1 in the environmental document.
Only when the Planning Commission (and
“In his Press Release dated
“In summary, it has taken nearly four years and extraordinary efforts
on the part of Building Inspection, Planning Environmental Health , and
Appeal of PLN 1999-00079 BOS Appeal Hearing Transcript
Lennie Roberts testimony before the Board of Supervisors in part:
“While he has proceeded to build numerous
structures without permits, he at the same time filed complaints against state
parks and county public works department, he has appealed coastal development
permits for Half Moon Bay Grading and Paving and Wildlife Associates which are
two properties in the area in each of these cases there have been unanimous
votes to approve the projects of the Planning Commission, the Board of
Supervisors, and the Coastal Commission. He also alleged there was an illegal
and hazardous dump on the Casannelli Ranch property which is now owned by
Summary of Planning Commission & Staff Findings &
Recommendations: Deny the Appeal of PLN 1999-000 because “The proposed project, as
conditioned, complies with all applicable General Plan Policies and Local
Coastal Program Policies specifically those related to visual impacts. The Project is also consistent with all
applicable Resource Management Coastal Zone and stable regulations”
“Dear Ms. Roberts and Ms. Giovannoni,
The Board of Supervisors continued this matter for ninety (90) days to:
Have the applicant pay all fees due for planning, building and
environmental health permits and approvals, including all applicable
investigation fees and penalties due for
construction without permits.
Have staff record a Notice of Violation (NOI) , to be released only
when all required permits are finaled.
Have Environmental Health investigate and clarify sewage disposal and
water supply issues and their proposal solution.
Have Planning and Building verify that the main house complies with
approved plans and determine the appropriate remedy if it does not.”
The County has claimed
through deposition testimony that they have followed a practice of charging ten
times the normal building fees.
However, the record reveals that the County has followed a practice and
policy for over twenty years (as shown by the 1994 Investigation Fees Memo
of Terry Burnes SMC published Planning and Building Fee Schedule)
of charging investigative fees of two times the normal
cost of Planning and Building Permit fees and ten times the cost
only for grading and tree cutting violations done without the benefit of a CDP.
The Administrative Record reveals that as a
condition to legalize their development, the Brauns agreed
to pay the traditional two times investigation fees of $7440.
Also, as noted on the both the 1994 memo and June 2004 SMC Planning and
Building Fee Schedule attached, there are NO Fees (waived by resolution of
the BOS) for farm labor or affordable housing and the fees for the
"Confined Animal Keeping Certificate of Exemption" (for 5
horses or less) is $114...... not $20,132.80 or 10 times
anything. Hence, the County charged the
Brauns in a manner that was not only illegal under state law, but different
from what they had traditionally charged others.
July 23, 2002 Notice of Final Local Decision Subject PLN1999-00079 :
“Based on the information provided by staff and evidence presented at the
hearing, the Board of Supervisors accepted the staff recommendation, made the
findings, denied the above referenced permits and adopted Resolution #065454 as
attached.”
August 28, 2002 Notice to Abate Building and Zoning Violations 1589 Higgins Canyon Road, Half Moon Bay,
California “ Because you were denied the required discretionary planning
permits, you will not be able to apply
for any building permits to legalize this work.
Therefore, you must obtain demolition permits to remove the un-permitted
and illegal structures.”
The
July 22, 2004 Ex Parte Hearing before the Honorable Marie S.
Weiner: See City of Half Moon Bay v.
Superior Court (Yamagiwa v. California Coastal Commission) 106 Cal. App.4th 795
( 1st Dist. 2003) SMC Superior Court,
Case Number 402781, Case Name: Joyce Yamagiwa , et al, v. California Coastal
Commission et al Re: “Under the doctrine of exhaustion of administrative
remedies, where an administrative remedy is provided by statue, relief must be
sought from the administrative body and this remedy exhausted before the courts
will act.” (Citation) This rule is not a matter of judicial
discretion, but is fundamental rule of procedure laid down by the courts of
last resort, followed under the doctrine of stare decisis and binding upon all
courts.” (Citation) Exhaustion of administrative remdies is, in short, “a
jurisdictional prerequisite to resort to the courts.” (Citation) “The rational is the prevention of
interference with the jurisdiction of administrative tribunals by the courts,
which are only authorized to review final administrative determinations.
(Citation)”
July 27, 2004, San Mateo County Board of Supervisors Agenda Item 13, “
De Novo Administrative Hearing for Consideration of an application for a
Coastal Development Permit, a Resource Management Coastal Zone Permit and
Stable Permit County File Number: PNL 1999-00079 (Oscar Braun) See Statement
and Documents for the record on behalf of Oscar Braun. Ted Hannig protests the
IV. DEFENDANT’S POSITION
Defendant contends that the decision
to deny the permits was rationally based on the existence of permit violations,
and the dispassionate application of the Board’s ordinances and resolutions
setting legalization fees; and that accordingly, there is no claim that
presents any basis for liability against the County. The Court heard defendant’s motion for
summary judgment on
A.
Plaintiffs Cannot Establish that the Board of
Supervisors’ Action Was in Retaliation for the Exercise of First Amendment
Rights
Plaintiffs allege
that actions taken by the County were in retaliation for their exercise of
their First Amendment rights of free expression. Because only the County as an entity has been
named as a defendant, and because the Board of Supervisors is the “final
policymaker” for purposes of the claims asserted, only the actions of the Board
are subject to scrutiny.
In order to
prevail on their First Amendment claim, “plaintiffs must plead and ultimately
prove that their conduct was protected by the First Amendment, and, second,
that such conduct prompted retaliatory action by the Board [of
Supervisors].” Arroyo Vista Partners v. County of Santa Barbara, 732 F. Supp.
1046, 1055 (C.D. Cal. 1990) (citing Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct.
568 (1977)). As part of a prima facie
case, a plaintiff must show that the protected conduct was a “substantial” or
“motivating” factor in the defendant’s decision. Mt.
Healthy, 429
A plaintiff may
establish retaliatory motive by producing (1) evidence that the decision-maker
knew of the protected speech, and (2) evidence of at least one of the
following: (a) proximity in time between the protected speech and the adverse
decision such that a jury could infer retaliation, (b) the decision-maker’s
expressed opposition to the speech, or (c) false or pretextual reasons for the
decision. Keyser v.
First, plaintiffs
cannot meet their burden with regard to the “proximity in time” test. According to plaintiffs’ own allegations,
they have been vigorously engaged in their protected First Amendment activities
continuously since at least 1995. Here,
the totality of circumstances leads to the conclusion that no “reasonable
inference” of retaliation can be drawn from the timing of the Board’s
action. By plaintiffs’ own assertion,
their robust exercise of their First Amendment rights has been ongoing for many
years.
Further, unlike
the situation in virtually all employment First Amendment cases, the Board was
not in a position to pick and choose the time of its purported retaliatory
action; instead, the matter came before the Board in the normal course of
events — and even then, only because third parties took an appeal from the
Planning Commission. Thus, plaintiffs will
not be entitled to a presumption of retaliatory motive merely because of
timing.
Second, plaintiffs
cannot adduce any evidence demonstrating that a majority of Board members
expressed opposition to plaintiffs’ exercise of their First Amendment
rights. Frequently, governmental
decision makers are required to make choices that will be embraced by some and
decried by others. In this case, there
is no evidence to indicate that a majority of Board members expressed
opposition to plaintiffs’ alleged exercise of their First Amendment
rights. Plaintiffs have remote evidence
of only two members of the Board even
having an opinion about Mr. Braun’s past speech activities. Plaintiffs are required by Monell to adduce evidence that three
members of the Board (i.e., a
majority, as required by Monell) were
concerned about Mr. Braun’s political activities. Accordingly, plaintiffs will not be able to
produce even circumstantial evidence of retaliatory motive on the part of the
Board acting through a majority.
Finally,
plaintiffs will be unable to present evidence of false or pretextual reasons
for the decision. The issues before the
Board were straightforward: (1) did the structures meet all requirements for
issuance of the required permits, and (2) were the plaintiffs willing to pay
all fees necessary to secure these permits?
Based on evidence presented at the hearing, and the Brauns’
unwillingness to pay the fees to legalize the structures, the Board denied the
permits (and, in fact, had no option but to deny the permits given its
conclusions that the fees were owed by the Brauns). Because plaintiffs provided the Board with
this quite adequate non-retaliatory reason to deny legalization, evidence of
retaliatory motive is irrelevant. Even
if retaliatory motive could be established, defendant can nevertheless prevail
if it can establish that the same decision would have been reached anyway. In this case, establishing that the result of
the Board of Supervisors hearing would have been the same regardless if
plaintiffs’ political speech had never been made will be a simple matter. When plaintiffs refused to pay the fees set by ordinance and resolution, the Board
was left with no choice but to decline to issue permits. There is no doubt that the decision would have
been the same even without Oscar Braun’s history of speech on matters of public
interest. By refusing to pay the fees set by ordinance, Mr. Braun made the
Board’s decision easy, and made the Board’s alleged retaliatory motives
irrelevant.
B.
Plaintiffs’ Equal Protection Claim Fails Because They
Cannot Establish That They Have Been Intentionally and Irrationally Treated
Differently
Plaintiffs contend
that they have experienced treatment with regard to the processing of their
permit applications that was different from other similarly situated
persons. They do not claim that their
disparate treatment arose from their membership in any protected class, nor do
they claim that the County impinged upon any fundamental right. Rather, their claim is solely a selective
enforcement claim under Village of
Willowbrook v. Olech, 528
Where, as here,
state action does not implicate a fundamental right or a suspect
classification, the plaintiff must establish a “class of one” equal protection
claim by demonstrating that it “has been intentionally treated differently from
others similarly situated and that there is no rational basis for the
difference in treatment.”
C.
Plaintiffs Cannot Establish Either a Procedural or
Substantive Due Process Claim
Plaintiffs titled
their Third Count “Violation of Procedural Due Process.” Despite having pled a procedural Due Process
claim, plaintiffs later characterized it as a substantive Due Process claim in
their Opposition to Defendant’s Motion for Summary Judgment. However, the Ninth Circuit does not recognize
substantive Due Process claims in the land use arena, because such rights are
addressed by a more specific provision of the Constitution. Armendariz
v. Penman, 75 F.3d 1311, 1325–26 (9th Cir. 1996) (“We have held that
substantive due process claims based on governmental interference with property
rights are foreclosed by the Fifth Amendment's Takings Clause.”)
Even if the Court
were to recognize a substantive Due Process claim, any substantive due process
claim relating to the amount of the fees would be rendered moot by the
settlement of the state court lawsuit between the parties. On
“The jurisdiction
of federal courts depends on the existence of a case or controversy.” GTE
Cali-fornia, Inc. v. Federal Communications Comm’n., 39 F.3d 940, 945 (9th
Cir. 1994). Ordinarily, a “party must
maintain a live controversy through all stages of the litigation process.” Doe v.
In summary, it is
defendant’s position that plaintiffs have taken a dispute over the handling of
land use permits that belonged in state court (where an action based on the
same facts was in fact filed), and attempted to transform it into a federal
civil rights case. While they may be dissatisfied
with the results of the process by which land use decisions are made in
V. WITNESSES
A. PLAINTIFFS’ WITNESSES
1. Oscar Braun, Plaintiff
2. Andrea Braun,
Plaintiff
3. Bernie Neves, farm
laborer Moon Acres Ranch
4. John Plock, Chair Save Our Bay
5. Ted Hannig Esq.
6. Gino Magri , farmer
7. James Rice, Soil Farm
8. Carl Hoffman, Stables, POST tenant
9. Roxy Stone-Hoffman, RCD Director, POST tenant
10. Chris Andreson, adjoining neighbor
11. Rusty Tate, adjoining neighbor
12. Don & Leatha Pretre, adjoining neighbors
13. Albert “Kitty” Hernandez, adjoining neighbor
14. Michael Thaxton , V.P. Bank of
15. Charles & Betty Shafae , President HCHA
16. William & Margaret Herndon, HCHA
17.
James and Anna Marie Spilker, HCHA
18. Richard Braun, brother and HCHA
19. Douglas Brinkmeier & Kim Hargraves , HCHA
20. John & Catherine Dull, HCHA
21. Charles & Cheryl Curry, HCHA
22. Thomas & Kathleen Ferenz, ,HCHA
23. Walter & Patricia Ferenz, HCHA
24. Kenneth J. Habeeb, Real Estate Appraiser
25. Terry Burnes, former SMC
Planning Administrator
26. William Cameron,
27. Jim Eggemeyer, SMC Planning Review Manager
28. Steve Hartsell , Health Dept.
Inspector Coastside
29. Paul Koenig, former Director Environmental Services
30. Dean Peterson, Director Enviro. Health Dept.
31. Anne Jensen, SMC Solid Waste Investigator
32. Gary Warren, SMC Code Enforcement
33. Margaret Hernandez, SMC Code Enforcement
34. Laura Thompson, SMC Planner
35. Kelly Pepper, Sprint PCS
36. Jim Mattison, Green Drake Engineering (Sprint)
37. Cynthia Giovannoni, HMBS&P
38. Lenore Roberts , CGF Lobbyist
39. Marcia Raines , SMC
40. Gary Giovannoni , HMBS&P
41. Steve Karlin, Wildlife Associates
42. Tom Pacheco, former RCD, landfill operator
43. Audry Rust, President POST
44. John Wade, former POST
45. Jack Olson, SMC Farm Bureau
46. Craig Brittan, MROSD
47. Martha Payotos, SMC LAFCO
48. Mary Davey, CGF & MROSD
49. Zoe Kersteen-Tucker, CGF
50. Brian Zamora, Director SMC Health Dept.,
51. James Rourke, RCD
52. Sheriff Deputy John Gonzales
53. Sheriff Sgt. Dal Porto
54. Deputy Counsel
55. Deputy Counsel Miruni
Soosaipillai
56. Mark Delaphaine, CCC
57. Deirdre Holbrook, POST ( HMB Review Editor)
58. Gary Arata, farmer
59. Louis Figone, farmer
60. John Mueller, Chair San
Francisco RWQCB
61. Robert Naify, E-Top (Dean &
Dean)
62. Keet Nerhan, KN Properties
(Dean & Dean)
63. Tim Hudson, farmer, PMAC
64. John & Clarence Arata,
farmers
65. Chuck Kozak, Coastal
66.
67. Michael Murphy, rancher
68. Vince Muzzi Esq.
69. Ron Sturgeon, farmer
70.
71. Nina Pellegrini, Citgizen’s for Responsible Open Space
72. John Silver, SMC Planning Commission
73. Ralph Nobles, SMC Planning Commission
74. Bob Vasquez, Former SMC Planning Commission
75. Dominic Muzzi, famer
76.
77. John Quinlan, SMC Sheriff
78. Loretta Barsamian, San Francisco RWQCB
79. Rosie Slaughter, Director –Examinations TE\/GE Div., IRS
80. Brian Arnold, State Fish & Game
81.
82. Ging
83.Norman Mineta, U.S.Secretary of Transportation
84. U.S.
85.
86. U.S. Senator Charles Grassley , Budget Committee
87. Susan Gladstone, San Francisco RWQCB
88. Habte Kifle, San Francisco RWQCB
89. Ann Crum, San Francisco RWQCB
90.Walter Moore, VP, POST
91. Paul Ringgold,
92. Leonard Warren, Granada Sanitation District
93. April Vargus, CGF
94.
95. Christopher Thuallog
96. Catherine Slater Carter
97. Thomas Huening, SMC Controller
98. Father Domingo, Our Lady of the Pilar
99. Robert Smith, Army Corp. of Engineers
100. David Tom, SMC
Election Division
101. Tim Frahm, SMC Farm
Bureau
102.Peter La Tourrette,
President, CGF
103. Dianne McKenna,
Chair POST
104. Karie Thomson, Chair, POST Coastal Campaign
105.Susan Packard Orr,
Chair Packard Foundation
106. George Vera, CFO
Packard Foundation
107. Gordon Moore,
Founder of
108. Lewis W. Coleman,
President,
109. James Reynolds, RCD Director
110. Richard Allen, RCD
Director, POST tenant
B. DEFENDANT’S
WITNESSES
1. Miroo Brewer, former employee of San
Mateo County Planning and Building Division
2. Terry Burnes,
3. William Cameron,
4. Jim Eggemeyer,
5. Gary Fitzer,
6. Steve Hartsell,
7. Paul Koenig, former employee of San Mateo County Planning and Building
Division
8. Dean Peterson,
9. Anne
Jensen,
10. Gary Warren,
11. Margaret Hernandez,
12. Mark Church, Member of the
13. Rose Jacobs-Gibson, Member of the
14. Rich Gordon, Member of the
15. Jerry Hill, Member of the
16. Mike Nevin, Member of the
17. Lily Toy, former Planner,
19. Laura Thompson, former employee of San
Mateo County Planning and Building Division
19. Kelly Pepper, Alaris Group (Sprint issue)
20. Jim Mattison (Sprint issue)
21. Cynthia Giovannoni, Brauns’ neighbor
VI. EXPERT
WITNESSES
A. PLAINTIFFS’ EXPERT WITNESSES
Plaintiff does not
intend to call any expert witnesses to testify at trial.
B. DEFENDANT’S EXPERT WITNESSES
1.
Monica Ip will testify that,
assuming a finding of liability, the plaintiffs suffered damages in the amount of
$396,995 in connection with the Sprint Site Agreement, and $62,464 in
connection with the delay in refinancing the mortgage on their property; and
that if the plaintiffs were to produce an agreement with NexTel similar to the
agreement with Sprint, the amount of damages would be similar.
A copy of Ms. Ip’s report, with a
corrected Exhibit 1, and Ms. Ip’s CV are attached to this statement as Exhibit
1.
2. Victor Reizman will testify that the recorded notices of violation
would not have prevented the plaintiffs from being able to list the property
for sale with a real estate broker, sell the property, or obtain financing on
the property; and that the value of the property would be affected only to the
extent of the cost to remedy the violations.
A copy of Mr. Reizman’s report and CV are attached to this statement as Exhibit
2.
VII. ADDITIONAL
MATTERS TO BE ADDRESSED BY THE COURT
A. Order Establishing A Reasonable Limit
On The Time Allowed For Presenting Evidence (FRCP 16(c)(15))
Given that the
court has set aside 10 court days for the trial of this matter, the parties
seek an order limiting each side to four days for the presentation of
evidence.
B. Avoidance
Of Unnecessary Proof And Of Cumulative Evidence (FRCP 16(c)(4))
1) Defendant
seeks a ruling from the court to limit the introduction of evidence which does
not relate to actions taken by the
2) Defendant
seeks a stipulation from plaintiffs that the Court should take judicial notice
of the following documents: the
documents attached to defendant’s Request for Judicial Notice submitted in
connection with its Motion for Summary Judgment (attached hereto as Exhibit 3).
3) Defendant
seeks a stipulation from plaintiffs to admit into evidence the Administrative
Record of hearings before the Board of Supervisors on
4) Defendant
seeks a stipulation from plaintiffs to admit into evidence the transcripts of
the hearings before the Board of Supervisors on
5) Defendant
seeks a stipulation from plaintiffs to admit into evidence the videotapes of
the hearings before the Board of Supervisors on
6)
Defendant seeks a stipulation from plaintiffs that the Court should take
judicial notice of the following document:
San Mateo County Ordinance Code, Zoning Regulations, Chapter 1.5 (§§ 6105.0
through 6105.4).
7) Defendant
seeks a stipulation from plaintiffs to admit into evidence the Settlement
Agreement, dated
Dated:
December 28,
2004 |
H.
The Hannig Law Firm |
|
Attorneys for
Plaintiffs OSCAR BRAUN, et al. |
Dated:
December 28,
2004 |
THOMAS F. CASEY
III, By: Michael
P. Murphy, Chief Deputy |
|
|
L:\LITIGATE\B_CASES\Braun, Oscar\joint pretrial conf
stmt - Defs Dec 15 DRAFT.doc
[1]
The Second and Third Causes of Action were dismissed by this Court pursuant to
Defendants’ Motion For Summary Judgment on