                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 26 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DANIEL D. CLAXTON,                               No. 10-15844

              Plaintiff - Appellee,              D.C. No. 2:08-cv-01058-MCE-
                                                 EFB
  v.

COLUSA COUNTY; STEPHEN                           MEMORANDUM *
HACKNEY,

              Defendants - Appellants,

  and

BOARD OF SUPERVISORS OF THE
COUNTY OF COLUSA,

              Defendant.



                   Appeal from the United States District Court
                      for the Eastern District of California
                  Morrison C. England, District Judge, Presiding

                       Argued and Submitted July 13, 2011
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                         -2-

Before: SILVERMAN and GRABER, Circuit Judges, and LYNN,** District Judge.

      Colusa County appeals the district court’s grant of Daniel Claxton’s petition

for a writ of mandate, ordering the County to rehear Claxton’s application to

subdivide his 421 acres of orchard farmland into thirty nine parcels, including

thirty-five 10-acre parcels. Although the district court was correct that the County

improperly applied Resolution 07-010 to Claxton’s application, the district court

erred in failing to uphold the County’s action on the basis of three independent

findings, each supported by substantial evidence in the record, that Claxton’s

application was inconsistent with the County’s General Plan. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We reverse.1

      The district court erred in holding that Claxton’s challenge to the validity of

Resolution 07-010 was not a facial attack subject to the limitations period set by

California Government Code section 65009(c)(1)(A). Claxton asserts a facial

challenge by claiming that the Board did not follow state law when it passed the



      **
             The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for Northern Texas, Dallas, sitting by designation.
      1
        We deny the County’s request for judicial notice of extra-record evidence.
See Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943
(9th Cir. 2006); Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d
1443, 1450 (9th Cir. 1996).
                                         -3-

resolution and, thus, “no set of circumstances exist[] under which the [legislative

act] would be valid.” See United States v. Salerno, 481 U.S. 739, 745 (1987). As a

result, the limitations period for a challenge to Resolution 07-010 began to run on

the date of the Board of Supervisors’ action, February 20, 2007. Cal. Gov’t Code §

65009(c)(1)(A). Claxton’s facial attack on the measure, filed April 8, 2008, is

therefore untimely.

      We agree with Claxton and the district court that Claxton’s application was

“complete” when submitted. The problems with the application identified by the

Planning Department should have and could have been resolved by requests for

correction, clarification, amplification, or supplemental information as envisioned

by California Government Code section 65944(a) rather than a determination that

the application was incomplete. Claxton’s application therefore should have been

determined or deemed complete within thirty days of its January 10, 2007

submission date; that is, no later than February 10, 2007. Cal. Gov't Code §

65943(a). Because Resolution 07-010, adopted February 20, 2007, was not in

effect on the date that Claxton's application should have been deemed complete,

the Resolution should not have been applied to Claxton’s application. See Cal.

Gov't Code § 66474.2(a).
                                         -4-

      However, independent of the Resolution, the County made sufficient

findings supported by substantial evidence when it denied Claxton’s application.

See Topanga Ass’n for a Scenic Cmty. v. County of Los Angeles, 522 P.2d 12,

13-14 (Cal. 1974); Craik v. County of Santa Cruz, 96 Cal. Rptr. 2d 538, 545 (Ct.

App. 2001). The County found that Claxton’s proposed subdivision was

inconsistent with the General Plan’s policy that land in the Agricultural General

designation should remain agricultural and not be converted to rural residential

use. The high number of proposed 10-acre parcels proposed by Claxton might

well impair the integrity and character of the Exclusive Agriculture zone because

such small parcels are “not economically viable” for agricultural use and tend to

attract non-farming property owners who may not be able to maintain productive

agricultural operations or adjust to farming culture and, consequently, might create

a series of nuisances for neighboring farmers. Substantial evidence therefore

supports the County’s decision to deny Claxton’s application based on findings

independent of Resolution 07-010 that the proposed subdivision was inconsistent

with the County’s General Plan. See Harris v. City of Costa Mesa, 31 Cal. Rptr.

2d 1, 6 (Ct. App. 1994) (“‘the opinions of neighbors may constitute substantial

evidence’”) (quoting Desmond v. County of Contra Costa, 25 Cal. Rptr. 2d 842,

847 (Ct. App. 1993); Browning Ferris Indus. of Cal., Inc. v. City Council, 226 Cal.
                                          -5-

Rptr. 575, 583 (Ct. App. 1986) (holding that opinions of Planning Department staff

may constitute substantial evidence).

      Finally, we reject Claxton’s claim that the County denied him a fair hearing.

Claxton’s application, which proposed to create a greater number of 10-acre

parcels than had ever previously been attempted, raised novel issues that the

County had a right to address. See Delta Wetlands Props. v. County of San

Joaquin, 16 Cal. Rptr. 3d 672, 686 (Ct. App. 2004) (“The mere fact [that a

particular project] was the impetus for the [legislative measure] does not mean it

unfairly discriminates against the project. The evil sought to be remedied will

often not come to the attention of authorities until a use is proposed or a permit

application is made.”). Claxton also argues that the County’s resistance to his

application evinces bias, but the stated opposition of County officials to his

proposed subdivision in advance of the public hearing does not constitute bias in

and of itself. What it shows is disagreement, not bias. See Clark v. City of

Hermosa Beach, 56 Cal. Rptr. 2d 223, 233 (Ct. App. 1996); Applebaum v. Bd. of

Dirs. Barton Mem’l Hosp., 163 Cal. Rptr. 831, 836 (Ct. App. 1980). The record

shows the County to have been solicitous of his application, even bending

procedural rules over the objections of Supervisors and members of the public to

allow him additional time to negotiate with and provide supplemental information
                                          -6-

to Planning Department staff before proceeding in front of the Board of

Supervisors.

      Also unavailing is Claxton’s argument that the County unfairly

discriminated against his proposal to create 10-acre parcels while approving the

applications of his neighbors to do so. The County’s opposition rested on the

dramatically greater number of parcels in Claxton’s proposed subdivision, a factor

supported by the California Subdivision Map Act. See, e.g., Colony Cove Props.,

LLC v. City of Carson, 114 Cal. Rptr. 3d 822, 828-29 (Ct. App. 2010) (stating that

proposal to subdivide land into five or more parcels requires approval of both a

tentative and final map, whereas a proposal to subdivide into four or fewer requires

only a parcel map). Indeed, the County expressed opposition to another

application that had initially proposed five or more 10-acre parcels in the Exclusive

Agriculture zone, but later approved the proposal after the applicant reduced the

number of 10-acre parcels to three. The County stated that it would support

Claxton’s application if he were to similarly reduce the number of 10-acre parcels

proposed, but Claxton declined to do so. Claxton has not shown that similarly

situated applications were treated more favorably. The district court therefore

erred in finding that Claxton did not receive a fair hearing.

      REVERSED.
