                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 09 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANDREW CONTASTI; et al.,                         No. 14-55197

              Plaintiffs - Appellants,           D.C. No. 3:09-cv-01371-WQH-
                                                 BLM
 v.

CITY OF SOLANO BEACH,                            MEMORANDUM*

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                          Submitted February 11, 2016**
                              Pasadena, California

Before: FARRIS, CLIFTON, and BEA, Circuit Judges.

      Plaintiffs Andrew Contasti, Annette Contasti, and Joe Hernandez appeal

from the district court’s entry of judgment in favor of the defendant City of Solana




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Beach. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, vacate in

part, and remand for further proceedings.

                                    I. Due Process

      The district court granted the defendant’s motions in limine to preclude

evidence, testimony, or argument relating to the plaintiffs’ procedural and

substantive due process claims. It entered judgment in favor of the defendant on

these claims. We affirm the judgment as to the due process claims.

      To obtain relief on a procedural due process claim, even assuming the

existence of a property interest at stake, the plaintiffs must establish a “lack of

process.” Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008) (quoting

Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). Here, the

defendant provided notice of its intent to consider the relevant permit applications,

held a public hearing on the applications, and issued a formal resolution denying

the applications for Lot 10. Thus, plaintiffs’ procedural due process claim fails as a

matter of law.

      To obtain relief on a substantive due process claim, assuming the existence

of a cognizable property interest, the plaintiff must show that the government’s

conduct “fail[ed] to advance any legitimate government purpose.” Shanks, 540

F.3d at 1088. Contasti has failed to meet that burden here. The resolution denying


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the Lot 10 application provided a rational explanation for denial of the permit. It

stated that the proposed structure would have been “incompatible with other

nearby development” based on its square footage, particularly taking into account

the impact of Ordinance 357 on future developments. The decision was not,

therefore, “an ‘abuse of power’ lacking any ‘reasonable justification in the service

of a legitimate governmental objective.’” Id. (quoting Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998)). The substantive due process claim consequently

fails as a matter of law.

                                II. Equal Protection

      The district court also granted the defendant’s motion in limine to preclude

evidence, testimony, or argument relating to plaintiffs’ equal protection class-of-

one claim. It entered judgment in favor of the defendant on the equal protection

claim. We vacate the judgment in this respect and remand for further proceedings.

      The district court concluded that the equal protection claim failed as a matter

of law based on Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012). In Towery, this

Court wrote that “[t]he class-of-one doctrine does not apply to forms of state action

that ‘by their nature involve discretionary decisionmaking based on a vast array of

subjective, individualized assessments.’” Id. at 660 (quoting Engquist v. Oregon

Dep’t of Agric., 553 U.S. 591, 603 (2008)). However, in Towery we went on to


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note that the class-of-one theory is inapplicable only “[a]bsent any pattern of

generally exercising the discretion in a particular manner while treating one

individual differently and detrimentally.” Id. at 660–61.

      Here, the plaintiffs have stated a viable class-of-one claim based on the

defendant’s treatment of permit applications for other projects. According to a

declaration submitted by one of the plaintiffs, in the year before they applied for

permits, the defendant approved other developments on the same street as the

proposed Lot 10 development. These developments ranged in size from 4,209

square feet to 4,263 square feet. The proposed development for Lot 10 was 4,387

square feet in size, and the defendant rejected the permit applications for Lot 10

solely because it concluded that the proposed development was too large. The

proposed Lot 10 development was only 3 or 4 percent larger than the other

developments that the defendant had recently approved on the same street. These

facts support an inference that the defendant treated the plaintiffs “differently and

detrimentally” when compared with other permit applicants. Thus, Towery does

not preclude trial of their class-of-one claim.

      Each party shall bear their own costs on appeal.

      AFFIRMED IN PART, VACATED IN PART; REMANDED FOR

FURTHER PROCEEDINGS.


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