Friedman v. City of Fairfax

Background

Jacob Friedman alleged that Fairfax officials interfered with his effort to construct a house, an accessory dwelling unit, and a junior accessory dwelling unit at 79 Wood Lane in Fairfax, California. The Planning Commission approved his application for a building permit in January 2022, and the Town issued the permit in August 2022.

Friedman later made changes to the approved construction plans. In June 2023, Mark Lockaby instructed him to obtain Planning Commission approval for two changes and to stop work on those changes. Lockaby issued a stop-work order on June 8, 2023. The Town refused to consider Friedman's attempted appeal. In August 2023, Lockaby suspended the permit without a hearing, stating that the construction changes had not been approved. Friedman continued construction, and a police officer later told his employees to stop work.

Friedman filed a state-court mandamus action. He alleged that the state court found that the Town owed him a hearing before suspending the permit and ordered the suspension and a second stop-work order set aside. The Planning Commission later held a hearing and suspended the permit until May 5, 2024. The Town Council held another hearing in February 2024, at which, according to the complaint, the permit was revoked. Friedman alleged that both hearings violated due process because he could not compel or cross-examine witnesses and because attorneys from the same law firm represented Town staff advocating suspension and the decision-making bodies.

Claims and analysis

The First Amended Complaint asserted six claims: a Fifth Amendment takings claim; claims under 42 U.S.C. § 1983 for Fifth and Fourteenth Amendment violations; inverse condemnation under the California Constitution; negligence; a California writ of mandate; and a claim under California Civil Code section 52.1, known as the Bane Act.

Federal and state takings claims. The court held that Friedman did not plausibly allege a vested property interest in the permit because he admitted making changes beyond the approved plans without obtaining an approved modification. Under the California authorities discussed by the court, rights obtained through a permit are no greater than the rights granted by the permit itself. The court also rejected Friedman's arguments based on equitable estoppel and due process.

The court dismissed without leave to amend the takings theory based on a vested interest in the permit. It allowed Friedman to amend a separate theory that he had a vested right to construct the portions of the project that the permit approved. The court rejected his regulatory-takings theories under both the Lucas rule and the Penn Central balancing test. It found that the alleged permit suspension did not eliminate all economic value from the property, and that Friedman had not adequately alleged the property's value before and after the government's action, a sufficiently reasonable investment-backed expectation, or a physical appropriation. The property takings claim was dismissed without leave to amend. The inverse-condemnation claim under the California Constitution was dismissed with limited leave to amend, consistent with the federal takings ruling.

Section 1983 claims. Section 1983 provides a way to seek relief for violations of federal rights by persons acting under state law. The court found that the complaint did not clearly identify which defendant was responsible for which conduct or clearly specify the theories of municipal liability against the Town. The court therefore dismissed the section 1983 claims with leave to amend, subject to its rulings on the individual theories.

The court dismissed with limited leave to amend the section 1983 takings claim because the underlying Fifth Amendment takings claim failed. It dismissed with leave to amend the procedural due process claim because Friedman had not adequately explained why the permit was a protected property interest under the Due Process Clause. Assuming that he could plead such an interest, the court concluded that he adequately alleged a procedural due process claim against Lockaby concerning the August 2023 suspension, which allegedly occurred without a pre-deprivation hearing. The court dismissed with leave to amend the procedural due process allegations concerning the January and February 2024 hearings because the complaint did not adequately establish a right to cross-examine witnesses or explain the federal legal basis for the alleged bias claim.

The court also dismissed with leave to amend the substantive due process claim. It concluded that the claim was not automatically barred by the takings claim because Friedman challenged allegedly arbitrary conduct. But the complaint did not clearly allege facts showing that the permit suspension and refusal to issue a Green Tag lacked any legitimate governmental objective, including the possible objective of bringing the project into compliance with the permit.

The equal protection claim was based on a “class-of-one” theory, which requires intentional different treatment from similarly situated persons without a rational basis. The court dismissed it with leave to amend because Friedman did not identify a similarly situated person or group that was arguably indistinguishable from him. The court noted that the complaint acknowledged that Friedman made unapproved changes and apparently refused to submit revised plans for approval, which supplied a possible rational basis for different treatment.

The court dismissed with leave to amend the Town's municipal-liability claim under Monell. Friedman had not adequately alleged that an official policy or custom, inadequate training, a final policymaker's decision, or ratification caused a constitutional violation. The court found that the complaint relied mainly on Friedman's own experience and did not allege facts showing the required policy, custom, notice, or ratification.

Negligence. Friedman's negligence claim was based solely on Lockaby's refusal to issue a Green Tag. The court held that the complaint did not establish that issuing the Green Tag was a mandatory duty rather than a discretionary authorization. It also found the statute Friedman cited inapplicable. The negligence claim was dismissed without leave to amend.

Writ of mandate. Friedman asked the court to order the Town to issue a Green Tag, reinstate the permit, and accept his appeal of the January 2024 suspension. The court declined to exercise supplemental jurisdiction over this California mandamus claim because its legal basis was unclear, counsel could not cogently explain why the federal court should retain jurisdiction, and the claim could involve novel or complex state-law issues. The claim was dismissed without prejudice to Friedman seeking relief elsewhere. The court's conclusion also stated that the mandate claim was dismissed without leave to amend in this action.

Bane Act. The court held that the Bane Act requires intentional interference, or attempted interference, with a legal right through threats, intimidation, or coercion. It found that Friedman's allegations of speech did not threaten violence and did not show coercion beyond the conduct he claimed was wrongful. The Bane Act claim was dismissed without leave to amend.

Disposition

The court granted the motion to dismiss. It required Friedman to identify the specific acts supporting each claim against each defendant. The court granted limited leave to amend the takings and inverse-condemnation claims concerning the approved portions of the construction, and granted leave to amend the section 1983 claims for municipal liability, substantive due process, procedural due process, and equal protection. It dismissed the negligence, mandate, and Bane Act claims without leave to amend as stated in the conclusion, while the mandate discussion specified that dismissal was without prejudice to seeking relief elsewhere. Friedman was granted leave to file a second amended complaint by September 9, 2024.