City Is Not Liable For Equal Protection And Due Process Claims When It Did Not Knowingly Impose Unique Conditions Or Irrational Delays Upon Developer

In North Pacifica LLC v. City of Pacifica, (— F.3d —, 2008 WL 2026085, C.A.9 (Cal.), May 13, 2008), the United States Court of Appeals considered a developer’s claims that a city violated its constitutional right of equal protection by imposing unique conditions upon its proposal to develop property and of due process by repeatedly imposing delays upon the project.

The court ruled that the city was liable for neither since the unique condition about which the developer complained was not knowingly imposed by the city council, and since the delays served a legitimate government purpose and were neither arbitrary nor irrational.


In 1999, developer North Pacifica LLC (“North Pacifica”) sought approval from the City of Pacifica (“City”) to develop a condominium project on a 4.3-acre parcel within the City. Over the next two years, before acting on the proposal, the City made a number of requests of North Pacifica for additional information. The City also retained outside counsel to handle the matter. The outside counsel recommended that the City council approve the project subject to 39 conditions of approval, one of which was condition 13(b), which specified that owners of the condominium units were to be held “jointly and severally” liable for the repair, maintenance and replacement of building exteriors and various other common areas. Written responses to the City from North Pacifica’s attorneys expressed opposition to the conditions including condition 13(b). But at the City council’s public hearing on the project in August 2002, North Pacifica did not orally express opposition to condition 13(b). The council then approved the proposal subject to all of the conditions, including 13(b). However, a citizen opposed to the project appealed to the state Coastal Commission, which has since continued to block the development.

North Pacifica filed suit claiming that the City had violated its due process right by unreasonably imposing delays upon the project, and its equal protection right by imposing upon it a unique condition, condition 13(b). The district court dismissed the due process claim but awarded damages to the developer on the equal protection claim stemming from condition 13(b). Both parties appealed.


The court ruled that the district court erred and the City was not liable for an equal protection violation, because it had not knowingly imposed a unique condition on the developer. Case precedents show that an equal protection claim requires that a plaintiff must establish “the City intentionally, and without rational basis, treated the plaintiff differently from others similarly situated,” the court said. But here, outside counsel inserted the contested language into the permit and the developer voiced no opposition to the language to the City council at its hearing on the permit. Therefore, there was no evidence that council members knew they were imposing a unique condition on North Pacifica when they approved condition 13(b), the court found.

The district court was right to dismiss the due process claim, the court ruled, because the City had shown a legitimate government interest in acquiring more information about the project each time it delayed action. Therefore, the court found there was no “arbitrary or irrational conduct” by the City.

Finally, the court noted the additional delays imposed by the Coastal Commission had undermined North Pacifica’s claims of City-caused harm to its project because regardless of the City’s actions, the project remained blocked from moving forward anyway. The court therefore affirmed the district court’s dismissal of North Pacifica’s due process claims but reversed the order holding the City liable for an equal protection violation. The awards of damages, costs and attorneys fees to North Pacifica were vacated and the matter remanded for judgment in favor of the City.