                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 02 2010

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




                            FOR THE NINTH CIRCUIT



CRAIG R. GRISWOLD and ROBIN                      No. 07-56592
GRISWOLD,
                                                 D.C. No. CV-06-01629-WQH
             Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

CITY OF CARLSBAD, California,

             Defendant - Appellee.



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

                               Argued May 7, 2009
                          Resubmitted September 16, 2010
                               Pasadena, California

Before: RYMER, KLEINFELD and SILVERMAN, Circuit Judges.


       We review this case de novo and may affirm on any ground supported by the

record. Serrano v. Francis, 345 F.3d 1071, 1076–77, 1082 (9th Cir. 2003).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The Griswolds’ right to vote on municipal assessments was established by

state law, not federal law, so the cases regarding waiver of federal constitutional or

statutory rights do not control. To the extent that their claims are matters of federal

constitutional law, we must apply a case-by-case analysis rather than a categorical

approach. See Lynch v. City of Alhambra, 880 F.2d 1122, 1127–28 (9th Cir.

1989). Under the factors established in Lynch, the Griswolds’ waiver must be

treated as voluntary, and the waiver is not rendered unenforceable as contrary to

the public interest. See id. at 1126–28. A city may condition the receipt of a

building permit upon the acceptance of certain conditions, so long as those

conditions are reasonably related to the burden the proposed building project will

create. See Schott v. City of Kingman, 461 F.2d 593, 593–94 (9th Cir. 1972).




      Under County of Imperial v. McDougal, 564 P.2d 14 (Cal. 1977) and

Pfeiffer v. City of La Mesa, 69 Cal. App. 3d 74 (Cal. Ct. App. 1977), narrowed on

other grounds and codified by Cal. Gov’t Code § 66020, the Griswolds’ agreement

to the deferral of the assessments and their construction of the improvements under

their permit effected a valid waiver of their right to challenge the conditions of

their permit. See also Hensler v. City of Glendale, 876 P.2d 1043, 1055 n.9 (Cal.

1994) (“The Legislature has now codified [Pfeiffer’s] rule that one who accepts the


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benefits of a permit may not later challenge conditions imposed on or in the

permit.”).




      Pfeiffer holds that a landowner cannot “comply with a condition ‘under

protest,’ construct the required improvement, and then maintain an action,”

because “the proper method to test the validity of conditions in a building permit is

a proceeding in mandamus . . . .” Pfeiffer, 69 Cal. App. 3d at 76. Though the

Griswolds seek a remedy for something other than inverse condemnation as was

the case in Pfeiffer, this is a distinction without a difference for the purposes of this

case. Economic disadvantages in litigating the claimed invalidity of permit

conditions before proceeding with construction do not, under Pfeiffer, amount to

compulsion rendering the waiver invalid. See id. at 78.




      AFFIRMED.




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