                                                                                           FILED
                                NOT FOR PUBLICATION                                         JUL 20 2011

                                                                                       MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                                   U.S. COURT OF APPEALS



                                FOR THE NINTH CIRCUIT


 ROSEMARY JENSEN AND                                     No. 10-16459
 RANDY JENSEN,
                                                         D.C. No. 3:08-cv-03440-JCS
                Plaintiffs - Appellants,

   v.                                                    MEMORANDUM*

 COUNTY OF SONOMA,

                Defendant - Appellee.


                       Appeal from the United States District Court
                          for the Northern District of California
                        Joseph C. Spero, District Judge, Presiding

                           Argued and Submitted June 16, 2011
                                San Francisco, California

Before: BYBEE, and MURGUIA, Circuit Judges, and EZRA, District Judge.**

        Plaintiffs-Appellants Rosemary and Randy Jensen ("the Jensens") appeal the

district court's grant of summary judgment to the County of Sonoma ("the

County") on the Jensens' 42 U.S.C. § 1983 claims asserting various constitutional



         *
                This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
         **     The Honorable David A. Ezra, United States District Judge for the District of Hawaii,
sitting by designation.
violations. The claims arise from a hearing held by the County to abate various of

the Jensens' uses of 50 Sonoma Mountain Road, a "Diverse Agricultural" zoned

property that the County had determined to be in violation of county zoning

ordinances. Because the history of the case is familiar to the parties, we need not

recount it in its entirety here.

       As an initial matter, the County's claims were not barred by the doctrine of

res judicata or claim preclusion under the holding in Miller v. County of Santa

Cruz, 39 F.3d 1030 (9th Cir. 1994), because the Appellants, unlike the appellant in

Miller, sought a writ of mandate under California Code of Civil Procedure §

1094.5.

       The Court affirms the district court's ruling that the county ordinance at issue

in this case is not unconstitutionally vague. Section 26-08-020 of the Sonoma

County Code sets forth permitted uses for land zoned as "Diverse Agricultural."

The code section is amply detailed and, when viewed in the context of the entire

ordinance, a reasonable person can discern that the storage of non-operative

vehicles, the operation of a junkyard, or a truck or equipment terminal or depot are

not permitted uses for such land. See, e.g., Turning Point, Inc. v. City of Caldwell,

74 F.3d 941, 944 (9th Cir. 1996).

       We also affirm the district court's ruling that the County did not violate the


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Jensens' substantive due process rights. Because the Jensens do not assert that

they belong in a protected class, they must establish that: 1) they are a member of

an identifiable class; 2) that they were intentionally treated differently from others

similarly situated; and 3) that there is no rational basis for the difference in

treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The County's

actions comport with equal protection if there is "any reasonably conceivable state

of facts that could provide a rational basis for the classification." See SeaRiver

Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002) (quoting

FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)).

      Even assuming the Jensens could satisfy the other requirements under the

test, they failed to establish that the County lacked a rational basis for having

complaint-driven enforcement of an ordinance or for prohibiting the outdoor

storage of non-operative vehicles while allowing the indoor storage of such

vehicles, the outdoor storage of operative vehicles, and the outdoor storage of

historic vehicles. While a complaint-driven system of enforcement could

theoretically leave some unreported violations unabated, an efficient allocation of

limited enforcement resources provides a rational basis for a complaint-based

system. Cf. Rosenbaum v. City and Cnty. of San Francisco, 484 F.3d 1142, 1155

(9th Cir. 2007) ("[T]he police may legitimately respond to citizen complaints and


                                            3
stop excessive amplified sound, especially if unpermitted."). And the County's

stated environmental concerns are sufficient to justify its distinction between the

outdoor storage of non-operative vehicles and other permitted vehicle storage.

      The County also had a rational basis for concluding that the Jensens did not

have a protected grandfathered use of their property pursuant to Hansen Brothers

Enterprises, Inc. v. Board of Supervisors, 12 Cal. 4th 533 (1996). The County

could only have committed a substantive due process violation in denying the

Jensens' grandfathered use if it “could have had no legitimate reason for its

decision.” Richardson v. City and Cnty. of Honolulu, 124 F.3d 1150, 1162 (9th

Cir. 1997) (quoting Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th

Cir. 1994)). The County concluded that the Jensens' use of the property for

extensive car storage did not predate the 1975 ordinance based on an aerial photo

showing that the property was not being used in that way in 1980. The County’s

reliance on the 1980 photograph provided a legitimate basis for its decision.

      The Jensens' Fourth Amendment claim, which is based on the order from the

County directing them to schedule an inspection confirming abatement, fails

because no search or seizure occurred. Cf. Conner v. City of Santa Ana, 897 F.2d

1487, 1490-92 (9th Cir. 1990) (finding a Fourth Amendment violation where

police, without a warrant, removed automobiles deemed a public nuisance from


                                          4
private property). Furthermore, given its finding that there was a zoning ordinance

violation, the County's order requiring the Jensens to schedule inspection to

confirm abatement is reasonable and does not present a Fourth Amendment

violation. See Sanchez v. Cnty. of San Diego, 464 F.3d 916, 923–924 (9th Cir.

2006); G.H. Love, Inc. v. Fleming, 161 F.2d 726, 728 (9th Cir. 1947).

      The Jensens' claim that they were penalized for seeking a hearing in

violation of their First Amendment right to petition the government for redress also

lacks merit. As the district court noted, there is no evidence in the record –

including on the penalty sheet – to support the Jensens' claim that they were

penalized for either seeking or participating in the hearing. The Jensens' due

process claim, which is also based on the penalty sheet, also lacks basis and

support in the record. The penalty sheet provides parameters and limitations for

the administrative officer to make a penalty calculation, and the Jensens had an

opportunity to be heard at the hearing. See Mathews v. Eldridge, 424 U.S. 319,

333 (1976). Therefore, the district court's ruling dismissing these claims is also

affirmed.

      The district court’s order granting the County's motion for summary

judgment is AFFIRMED.




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