                                                                           FILED
                           NOT FOR PUBLICATION                              APR 26 2010

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




                            FOR THE NINTH CIRCUIT



SURF AND SAND, LLC,                              No. 08-16481

             Plaintiff - Appellant,              D.C. No. 5:07-CV-05043-RS

  v.
                                                 MEMORANDUM *
CITY OF CAPITOLA,

             Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                           Richard Seeborg, , Presiding

                      Argued and Submitted October 7, 2009
                            San Francisco, California

Before: SCHROEDER and BERZON, Circuit Judges, and STROM, ** District
Judge.

       Plaintiff Surf and Sand LLC (“Surf and Sand”) seeks to challenge a Capitola

municipal ordinance implementing a state statute designed to prevent owners of

mobile home parks from avoiding rent control by effecting sham conversions of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
the parks from rental to owned units. See Cal. Gov’t Code § 66427.5 (“State

Conversion Statute”); City of Capitola Municipal Code § 16.70 (“Conversion

Ordinance”). The Conversion Ordinance implements the State Conversion Statute

by detailing the information that park owners must disclose when conducting a

survey of resident support prior to a conversion and establishing a presumption that

a conversion is bona fide only if a majority of the renters support conversion. The

district court dismissed the action and we affirm.

      The district court correctly held that the facial challenge to the Conversion

Ordinance as a public regulatory taking was not ripe. Plaintiff had not sought

compensation from the state as required by Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Surf and

Sand contends on appeal that because Williamson creates a prudential barrier to the

exercise of jurisdiction, the district court should nevertheless have reached the

merits. Yet Surf and Sand offers no good reason why the district court should have

done so. Plaintiff never took any steps to convert the property and so is unable to

show that the Conversion Ordinance adversely affected it. Accordingly, our

decision in McClung v. City of Sumner, 548 F.3d 1219, 1224 (9th Cir. 2008), in

which the dispute was “clearly defined and concrete,” is not on point.




                                           2
      Surf and Sand also contends that its regulatory takings claim is ripe under

Williamson because an application to convert the park would be futile. Though our

case law does recognize a futility exception to Williamson’s ripeness requirements,

that exception addresses the futility of state compensation remedies, not the futility

of the municipal proceedings alleged to give rise to the taking. See Hacienda

Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651, 657-61 (9th Cir.

2003). Surf and Sand has not alleged any deficiencies in California’s

compensation remedies, and thus the futility exception is inapplicable here. We

therefore concur with the district court that Surf and Sand’s regulatory takings

claim is not yet ripe.

      The district court’s additional holding that Surf and Sand failed to state a

claim for a regulatory taking is also sound. Under Penn Central Transportation

Co. v. New York City, 438 U.S. 104 (1978), a plaintiff must demonstrate at least

some adverse impact, even in a facial challenge. Surf and Sand has not shown any.

The City has not yet denied Surf and Sand the opportunity to convert the park to

resident ownership.

      For similar reasons, Surf and Sand cannot establish that the City has

effectuated a private taking in violation of the Fifth Amendment’s “public use”




                                           3
requirement by transferring the value of the property from the owners to the

renters. See Kelo v. City of New London, 545 U.S. 469 (2005).

      The district court also correctly dismissed Surf and Sand’s claims that the

Conversion Ordinance violated its substantive due process and equal protection

rights. Surf and Sand argues that the City’s stated reason for adopting the

Conversion Ordinance was not its actual reason, and that the actual reason is

constitutionally improper. The City’s actual motivation, however, is irrelevant

under rational basis review; this court asks only “whether the governmental body

could have had no legitimate reason for its decision.” Richardson v. City and

County of Honolulu, 124 F.3d 1150, 1162 (9th Cir. 1997) (internal quotations

omitted). The Conversion Ordinance serves a legitimate purpose in preventing

evasion of rent control laws. See Equity Lifestyle Props., Inc. v. County of San

Luis Obispo, 548 F.3d 1184, 1194 (9th Cir. 2008) (recognizing rent control laws as

rationally related to a legitimate public purpose).

      The district court properly dismissed the “class of one” equal protection

claim. Surf and Sand’s complaint does not allege facts that would establish that

the mere enactment of the Conversion Ordinance resulted in Surf and Sand

suffering intentional, differential, and irrational treatment by the City, in

comparison to a similarly situated group. See Village of Willowbrook v. Olech, 528


                                            4
U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 589 (9th Cir.

2008).

         AFFIRMED.




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