Petition for Writ of Certiorari — Kollsman v. City of Los Angeles
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In the Supreme Court @ cr L STEVAS.
United States (Os
October Term, 1984
84-883 —
No. 84 -
EVA KOLLSMAN, CITY NATIONAL BANK,
as Special Administrators of the Estate of
Paul Kollsman, deceased,
Petitioners,
v,
CITY OF LOS ANGELES,
a municipal corporation,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERROLD A. FADEM
MICHAEL M. BERGER
of FADEM, BERGER & NORTON
501 Santa Monica Boulevard
Suite 600
P.O. Box 2148
Santa Monica, California 90406
Telephone: (213) 451-9951
Attorneys for Petitioners
Westside Law Publishers Los Angeles, California (213) 477-0491
QUESTIONS PRESENTED
1. Because of the harmful effects of delay on the
parties and the impact on both state and federal judicial
systems of trial, should the determination whether to
abstain be primarily a pre-trial determination, so years of
litigational effort by both court and counsel are not wasted
by a hindsight post-trial review? When abstention has
been denied and a trial on the merits has been concluded,
is it a better use of limited judicial resources to review the
merits of the case rather than “‘armchair quarterbacking”’
the pre-trial abstention decision?
2. When the District Court has refused four requests
to abstain and the Court of Appeals has denied a pretrial
Petition for Writ of Mandate seeking to compel abstention,
is it error for the Court of Appeals to re-examine the
abstention issue after the case has been fully tried on the
merits, order abstention, and compel the parties (after
seven years of Federal Court litigation) to begin anew in
state court?
3. Is it proper for the Ninth Circuit Court of Appeals
to decide that, in land use planning and zoning cases, the
District Courts have no discretion to consider the merits
and that abstention in favor of state court adjudication is
mandatory? Ought such a rule — which contradicts all
decisions of this Court on abstention — survive as
precedent in the largest Circuit in the Nation?
4. Indetermining whether a state law issue is a matter
of sufficient local sensitivity to require abstention, is it
proper for the Ninth Circuit Court of Appeals (in contrast
to all other Courts of Appeals to consider the issue) to
conclude that land use planning and zoning cases are
almost a/ways so sensitive that abstention is required?
Otherwise expressed, are planning and zoning cases any
more locally sensitive than public school, motor vehicle,
li
and prison condition cases which Federal Courts routinely
decide?
5. In determining whether state law is so uncertain
that abstention is mandatory, is it sufficient for a Court of
Appeals merely to note ( without analysis) that counsel for
one of the litigants says he disagrees with the District
Court’s interpretation?
6. Is abstention mandatory when a substantial federal
issue will remain regardless of the outcome of state
litigation?
7. When acase pending in the District Court contains
both Federal Constitutional issues and state statutory
issues and is fully tried as to all issues, is it appropriate for
the District Court to decide a state statutory issue first, in
an effort to avoid reaching Federal Constitutional issues?
If a District Court does that in compliance with cases such
as City of Mesquite v. Alladin’s Castle, Inc. (1982) 455
US 283, 294-295, is it error for a Court of Appeals to
vacate and order abstention?
PARTIES
All parties are listed in the caption.
ili
TOPICAL INDEX
Page
Questions Presented i
Parties li
Opinions Below ]
Jurisdiction 2
Constitutional And Statutory Provisions 3
Statement Of The Case 3
Reasons For Granting The Writ 7
INTRODUCTION 7
ABSTENTION IS PROPERLY A PRE-TRIAL DECI-
SION, WHICH CONSERVES THE RESOURCES OF
THE LITIGANTS AND BOTH JUDICIAL SYSTEMS,
RATHER THAN A POST-TRIAL DECISION REQUIR-
ING MULTIPLE TRIALS ON THE MERITS
THIS COURT HAS UNIFORMLY HELD THAT ABSTEN-
TION IS THE EXCEPTION TO THE DUTY OF DIS-
TRICT COURTS TO ADJUDICATE CASES INVOLVING
SUBSTANTIAL FEDERAL QUESTIONS. THE NINTH
CIRCUIT IS ATTEMPTING TO ESTABLISH THE
OPPOSITE
LAND USE CASES ARE NOT SO SENSITIVE THAT
ABSTENTION MUST ALWAYS BE REQUIRED
TO ESTABLISH SUFFICIENT UNCERTAINTY OF
STATE LAW TO REQUIRE ABSTENTION, MORE IS
REQUIRED THAN TO NOTE THAT COUNSEL FOR
ONE OF THE PARTIES SAYS HE DISAGREES WITH
THE DISTRICT COURT
11
13
15
iV
IT HAS LONG BEEN SETTLED THAT A DECISION
SHOULD BE BASED ON A PENDENT STATE LAW
CLAIM RATHER THAN A FEDERAL CONSTITUTION-
AL CLAIM 17
THE FEDERAL CONSTITUTIONAL RIGHTS OF THE
KOLLSMAN HEIRS OUGHT NOT BE SACRIFICED
ON THE ALTAR OF ABSTENTION 19
CONCLUSION 20
TABLE OF AUTHORITIES
Cases Page
Agins v. City of Tiburon[1979] 24 C 3d 266 [aff'don
other grounds 447 US 255] 19
Bell v. Hood [1946] 327 US 678 11, 20
Canton v. Spokane School Dist. #81 [9th Cir 1974]
498 F2d 840 21
CIR v. Duberstein [1960] 363 US 278 3
City of Mesquite v. Alladin’s Castle, Inc. (1982) 455
US 283 ii
City of Moore v. Atchison, Topeka, & Santa Fe Ry.
[10th Cir 1983] 699 F2d 507 14
Colorado River Water Cons. District v. U.S. [1976]
424 US 800 7, 11
County of Allegheny v. Frank Mashuda Co. [1959]
360 US 185 14
C-Y Dev. Co. v. City of Redlands [9th Cir 1983] F2d
375 12
Gilliland v. County of Los Angeles [1981] 126 CA
3d 610 19-20
Hawaii Housing Auth. v. Midkiff [1984] ___ US
___., 81 LEd 2d 186 12, 15, 16
Heritage Farms, Inc. v. Solebury Tp. [3d Cir 1982]
671 F2d 743 14
Hostetter v. Idlewild Liquor Corp. [1964] 377 US
324 9
Inwood Laboratories v. Ives Laboratories [1982]
456 US 844 3
Isthmus Landowners Assn. v. State [9th Cir 1979]
601 F2d 1087 12
Kollsman v. City of Los Angeles (9th Cir 1984) 737
F2d 830 1, 8, 11, 12, 14, 15-16
Kolisman v. City of Los Angeles (CD Cal 1983) 565
F.Supp. 1081 1
Lodestar Co. v. County of Mono (E.D.Cal. 1984)
—_.. F. Supp. : , Fn. 23 18
vi
Lynch v. Household Fin. Corp. [1972] 405 US 538
Mayor v. Educational Equality League [1974] 415
12
US 605 9,17
Moses H. Cone Hosp. v. Mercury Const. [1983]
US , 74 L Ed 2d 765
Nasser v. City of Homewood [11th Cir 1982] 671
F2d 432
Newport Inv., Inc. v. City of Laguna Beach [9th Cir
1979] 564 F 2d 893
Ohio Bureau of Employment Serv. v. Hodary (1977)
431 US 471
Pennhurst State School of Hosp. v. Halderman
(1984) __E US _____, 79 L Ed 2d 67
Public Util. Com. v. United Fuel Gas Co. [1943]
317 US 456
1317 US 456
Pue v. Sillas [9th Cir. 1980] 632 F 2d 74
Railroad Comm’n v. Pullman Co. [1941] 312 US
7
14
12
17
17
9
21
496 9,13
Rancho Palos Verdes Co. v. City of Laguna Beach
[9th Cir 1976] 547 F 2d 1092
San Diego Gas & Elec. Co. v. City of San Diego
[1981] 450 US 621 [Brennan, J., dissenting]
12
5, 12, 19, 20
Santa Fe Land Imp. Co. v. City of Chula Vista [9th
Cir. 1979} 596 F.2d 838
Sederquist v. City of Tiburon [9th Cir 1978] 590
12
F.2d 278 12, 18
Silverman v. Barry [DC Cir. 1984] 727 F.2d 1121
Spivey v. Barry [DC Cir. 1981] 665 F.2d 1222
Toussaint v. Yockey [9th cir. 1984] 722 F.2d 1490
Urbanizadwora Versalles, Inc. v. Rivera Rios [1st Cir.
1983] 701 F.2d 993
U.S. v. Clarke (1980) 445 US 253
Wilcox v. Consolidated Gas Co. [1908] 212 US 19
Zwickler v. Koota (1967) 389 US 241
14
10
21
14
13
1]
1]
Vii
Statutes
California Government Code
§ 65950 2
§ 65956 y a
United States Code
28 USC §1254(1) 3
28 USC §1331 2
28 USC §1332 2
28 USC §1343 2
42 USC §1983 2, 12, 19
Other Authorities
Tribe, American Constitutional Law[1978] § 3-40
at 151 9
No. 84 -
In the Supreme Court of the
United States
October Term, 1984
EVA KOLLSMAN, CITY NATIONAL BANK,
as Special Administrators of the Estate of
Paul Kollsman, deceased,
Petitioners,
v.
CITY OF LOS ANGELES,
a municipa! corporation,
Respondent.
PETITION FOR WRIT OF CERTIORARI!
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The Petitioners respectfully pray that a Wnit of Certiorari
issue to review a judgment and order of the United States
Court of Appeals for the Ninth Circuit.
OPINIONS BELOW
The opinion of the Court of Appeals (App. A) is
reported as Kolisman v. City of Los Angeles (9th Cir
1984) 737 F 2d 830. The Court of Appeals (by a 2-1 vote)
vacated the District Court’s judgment and ordered absten-
tion. The District Court’s opinion (App. C) is reported as
Kollsman v. City of Los Angeles (CD Cal 1983) 565 F
Supp. 1081.
JURISDICTION
This is a land use planning case in which the property
owner, Mr. Kollsman,' sought a determination as a matter
of Federal Constitutionai law that the City’s regulation of
his vacant land in such a way that no economically viable
use could be made of it violated the due process and equal
protection guarantees and constituted a taking of his 85
acre property for public use (open space) without compen-
sation. He asked both injunctive and compensatory relief.
Jurisdiction was based on 28 USC §1331. When the
complaint was filed, Tashi Land Corp. (wholly owned by
Mr. Kollsman) was the titular owner of the subject
property. As it was a New York resident, jurisdiction was
also based on 28 USC § 1332.2 When the complaint was
amended to seek relief pursuant to the Civil Rights Act (42
USC § 1983), jurisdiction was additionally founded on 28
USC §1343. Mr. Kollsman also sought relief pursuant to
California law, under both the District Court's pendent
and diversity jurisdiction. Cal Govt Code § §65950 and
65956 provide that, when a subdivision application is not
acted on by a city within one year, it is deemed approved.
After trial on the merits of the Federal Constitutional
issues as well as the pendent state issue, the District Court
entered judgment on the state issue only, deeming Mr.
Kollsman’s subdivision approved, while reserving jurisdic-
tion over the Federal Constitutional issues.
'Mr. Kolisman died at age 82, knowing that the District Court had
ruled in his favor but without seeing the judgment entered. His widow
and City National Bank, co-Special Administrators of his estate for
his California property, were substituted in his stead on appeal. As the
record refers to Mr. Kollsman as the property owner, this Petition will
do likewise for clarity and consistency.
?Tashi Land Corp. was later dissolved and its only asset (the
subject property) distributed to Mr. Kollsman.
The District Court’s judgment (App. D) and it’s opinion
(App. C), including findings, were filed February 1, 1983.
The Court of Appeals’ judgment (App. A) vacating the
District Court’s judgment and ordering abstention by a 2-
1 vote (Judge Reinhardt dissenting), was filed July 17,
1984. The timely Petition for Rehearing was denied
September 5, 1984 (App. B).
This Court’s jurisdiction is invoked pursuant to 28 USC
§1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
This Petition deals primarily with the abstention doctrine,
a judge-made concept, which has no Constitutional or
Statutory genesis.
The District Court’s judgment was based on California
statutes, primarily Cal Govt Code § §65950 and 65956.
They are reproduced in App. E.
STATEMENT OF THE CASE}
Mr. Ko!'sman owned 85 acres of vacant hillside land in
a valuable, desirable area of the City of Los Angeles,
adjacent to an estate on which he lived. The property had
been acquired over a period of decades with the idea of
creating a high quality, luxury subdivision. Thus, although
the zoning on the property would have permitted 247
homes on the 85 acres, Mr. Kollsman (after lengthy study
and consultation with neighbors and government officials)
proposed only 70 homes.
‘This statement is based on the District Court's findings (App. C).
The opinion of the Court of Appeals (App. A) did not overturn any
findings or conclude that they were unsupported. To the extent that its
factual recitation deviates from the findings, it appears to be improper.
(Compare /nwood Laboratories v. lves Laboratories |1982|456 US
844, 855-857: CIR v. Duberstein |1960| 363 US 278, 291-292.)
The day after Mr. Kollsman submitted his tentative
tract inap (the first step in subdivision approval), the City
adopted a part of its general plan which contained a
regulatory device called the “slope density formula.’’ The
formula was intended to severely restrict development in
some hillside areas. It applied to the Kollsman property.
In fact, the “slope density formula’”’ is so restrictive that
appraisers for both sides agreed at trial that its application
to Mr. Kollsman’s land (allowing only 9 homes on his 85
acres) deprived the property of any economically viable
use.
The City’s appraiser said “ .. . development. . . would
not have been economically feasible.” (RT [1979] 762)
Mr. Kollsman’s appraiser concluded:
*.., the 85 acres for subdivision purposes has no
value. It would show a negative result, a loss.”
(RT [1979] 158)
The case was tried in 1979 on the Federal issues of due
process, equal protection, and inverse condemnation.
A year later, with no decision forthcoming, Mr. Kollsman
sought leave to amend his complaint to add a state law
cause of action, to give the District Court the opportunity
to base its judgment (at least in part) on non-Constitutional
grounds, as this Court has repeatedly taught. During the
pendency of the litigation, the California legislature
completed enactment of a series of statutes designed to
encourage construction of housing, ease the process of
obtaining permits, and speed the process of land develop-
ment. Cal Govt Code § §65950 and 65956 require a city
to act on land development applications within one year or
they are deemed approved.
In 1981, the District Court heard additional testimony
on the state law issue.
Two years later, in 1983, the District Court found that
Mr. Kollsman had done all that was required of him, that
the City had acted in bad faith in refusing to process his
subdivision proposal, and that the proposal must be
deemed approved. (App. C, pp C-29-30) Judgment was
entered on this issue only, with jurisdiction over the
already-tried Federal Constitutional issues still held in
abeyance. (App. D)*‘
During the litigation, the City repeatedly asked the
District Court to abstain. Four times, these requests were
denied. In 1978, the City sought a writ of mandate from
the Court of Appeals to compel abstention. After full
briefing by both sides, the writ was denied. (See App. C, p
C-3.)
Then, in 1984, seven years after the litigation began and
after a full trial on the merits of all issues, the Court of
Appeals (over Judge Reinhardt’s vigorous dissent) decided
that abstention was required. In so doing, the Ninth
Circuit:
e reinforced its own peculiar rule that abstention is
the ru/e in land use planning and zoning cases,
rather than the exception in all cases;
e decided that land use planning and zoning cases
are always matters of extreme local sensitivity
which require abstention (apparently unlike
cases involving public schools, motor vehicles,
and prison conditions, which are not);
e concluded that a District Court has virtually no
discretion to entertain a land use planning or
zoning case on its merits without first abstaining;
4Interim damages for the period during which development was
prohibited remained to be determined. (See San Diego Gas & Elec.
Co. v. City of San Diego |1981}| 450 US 621 |Brennan, J.,
dissenting|.) The amount could not be determined until after develop-
ment.
e held that the mere fact that counsel for one of the
litigants says he disagrees with a District Court’s
interpretation of state law automatically demon-
strates the uncertainty of state law and requires
abstention; and
e _ ignored generations of this Court’s holdings that
decisions ought to be based on non-Constitutional 3
grounds where possible. |
Because the Federal Constitutional issues had already :
been fully tried and awaited only the preparation of
findings and a judgment, and in order to end this litigation
economically (which ought to be in the interest of all
litigants and both judicial systems), Mr. Kollsman’s heirs
offered (in their Petition for Rehearing) to forego any
attempt at relief under California law. Instead, they asked
that the case be remanded to the District Court for
determination of the Federal Constitutional issues.* They
remain willing to do that.
ee
‘This was the solution preferred by Judge Reinhardt in dissent. He
believed the District Court's application of state law to the facts was
erroneous. Rather than abstain, he urged remand for determination of
the Federal Constitutional issues. (See App. A, pp A-28-31.)
REASONS FOR GRAWTING THE WRIT
INTRODUCTION
The Ninth Circuit Court of Appeals has created its own
backwater of abstention law which is at odds with this
Court’s consistent teachings. As the largest Circuit Court
in the Nation, there is a need to bring its holdings into
harmony with this Court’s paramount holdings. These
aberrant holdings have been developing over the last eight
years. It is time for this Court to halt the nonconformity.
This Court has consistently held that abstention is an
‘,.. extraordinary and narrow exception to the duty of a
district court to adjudicate a controversy properly before it
... (Colorado River Water Cons. Dist. v. U.S. [1976]
424 US 800, 813; quoting with approval.) As this Court
recently concluded:
‘But we emphasize that our task in cases such as
this is not to find some substantial reason for the
exercise of federal jurisdiction by the district
court; rather, the task is to ascertain whether
there exist ‘exceptional’ circumstances, the ‘clear-
est of justifications,’ that can suffice under
Colorado River to justify the surrender of that
jurisdiction. Although in some rare circumstances
the presence of state-law issues may weigh in
favor of that surrender, see n 29, supra, the
presence of federal-law issues must always be a
major consideration weighing against surrender.”
(Moses H. Cone Hosp. v. Mercury Const.
[1983] _. US _., 74 L Ed 2d 765, 786;
emphasis, the Court’s.)
The Ninth Circuit’s rule is in sharp contrast to this
Court’s, at least in land use planning and zoning cases. As
Judge Reinhardt lamented in his dissent:
‘By attempting to make abstention the absolute
rule in zoning cases rather than the exception in
all cases, the majority does a disservice to the
litigants, who deserve, at a minimum, a reasonably
prompt resolution of the federal issues that are
determinative of this lawsuit.’ (Kollsman v.
City of Los Angeles {9th Cir 1984] 737 F 2d
830, 844 [App. A, p A-30]; Reinhardt, J.
dissenting)
In land use planning and zoning cases, the Ninth Circuit
has stripped District Courts of their discretion. It has
concluded that such cases automatically involve highly
sensitive matters of local concern. It has concluded that
the mere expression of disagreement with the District
Court’s interpretation of state law by counsel for one of the
litigants is sufficient to establish uncertainty and mandate
interpretation by state courts — with all its attendant delay
— before adjudicating the Federal issues.
The majority has gutted the elementary duty of District
Courts to try cases within their jurisdiction. It has stood
the abstention doctrine on its head by commanding
abstention in virtually all land use planning and zoning
cases.
This court’s attention is sorely needed to return the law
of the Ninth Circuit to that of the Nation.
ABSTENTION IS PROPERLY A PRE-TRIAL
DECISION, WHICH CONSERVES THE RE-
SOURCES OF THE LITIGANTS AND BOTH
JUDICIAL SYSTEMS, RATHER THAN A
POST-TRIAL DECISION REQUIRING MUL-
TIPLE TRIALS ON THE MERITS
The abstention doctrine seeks to serve a dual purpose. It
attempts to avoid Federal/state friction by not having
Federal courts unnecessarily decide issues of state law. It
also attempts to conserve judicial resources by having
uncertain state law issues determined by the courts with
the jurisdiction and primary interest in deciding them.
(Railroad Comm’n v. Pullman Co. [1941] 312 US 496,
500)
Abstention necessarily creates some delay, while a case
remains in a “holding pattern”’ in District Court awaiting
the outcome of state court determination of state law
issues. Because of the adverse impact of delay, this Court
has repeatedly cautioned that the impact of delay deserves
to be weighed when deciding whether to abstain. (See,
e.g., Bellotti v. Baird |1976]| 428 US 132, 150; Mayor v.
Educational Equality League {1974} 415 US 605, 628;
Hostetter v. Idlewild Liquor Corp. |1964] 377 US 324,
329; Public Util. Com. v. United Fuel Gas Co. [1943]
317 US 456, 462-463; Tribe, American Constitutional
Law |1978] §3-40 at 151.)
The economy benefit of abstention is not available if
abstention is ordered by an appellate court after trial on
the merits.
Abstention is, by its nature, a pre-trial determination.
It determines where trial will take place. To conserve limited
judicial resources (in both state and Federal systems), the
id
District Court’s pre-trial determination ought to stand
unless reversed in an extraordinary writ proceeding before
trial.
To do otherwise, and permit appellate courts to second
guess trial judges after trial has already been had and
command not one, but two additional trials,° is profligate.
As the D.C. Circuit Court of Appeals recently expressed
it:
‘We do not believe that a decision to abstain at
this late date [i.e., after trial] would serve the
purposes that animate the abstention principle,
and we decline to order a complete relitigation of
this case in the local courts.” (Spivey v. Barry
[DC Cir 1981] 665 F 2d 1222, 1229)
The decision of the Ninth Circuit in this case is plainly
at odds with the realistic assessment of the D.C. Circuit in
Spivey. Judge Reinhardt’s dissent, by contrast acknowledges
the need to infuse abstention decisions with realism and
practicality:
“The suit has already outlived the original
plaintiff, Paul Kollsman. The Kollsman estate
will be most fortunate indeed if it is able to
resolve even the simple and unimportant state
law aspect of this litigation by 1987 — ten years
after the time the original application was filed.
The case will then return to the federal courts for
resolution of the federal issues unless by that
time the plaintiffs have abandoned their rights in
despair. In my opinion, we have a legal duty to
exercise our jurisdiction now.
x* *
Please recall that the upshot of a post-trial abstention order (such
as issued by the Court of Appeals at bench) is to wipe out the trial
which already occurred, send the parties to state court for a trial (and
appeal) of state law issues, and then conduct yet another Federal trial
on the Federal issues.
1]
“By attempting to make abstention the absolute
rule in zoning cases rather than the exception in
all cases, the majority does a disservice to the
litigants, who deserve, at a minimum, a reason-
ably prompt resolution of the federal issues that
are determinative of this lawsuit. We should
allow the already long delayed dispute to pro-
ceed to an orderly resolution. The abstention
doctrine and its accompanying delay should be
reserved for cases involving extraordinary cir-
cumstances.” (Kollsman, 737 F 2d at 844;
App. A, p A-30)
Many decisions are best entrusted to the discretion of
the trial judge. This is one of them. The time to review it for
abuse is before trial, not after seven years of Federal
litigation.
THIS COURT HAS UNIFORMLY HELD
THAT ABSTENTION IS THE EXCEPTION
TO THE DUTY OF DISTRICT COURTS TO
ADJUDICATE CASES INVOLVING SUB-
STANTIAL FEDERAL QUESTIONS. THE
NINTH CIRCUIT IS ATTEMPTING TO ES-
TABLISH THE OPPOSITE
Where Federal questions are central to a lawsuit, the
plaintiff has a right to have his case tried in the Federal
courts. (Wilcox v. Consolidated Gas Co. [1908] 212 US
19, 40; Bell v. Hood [1946] 327 US 678, 681)
The duty of the District Courts to try such cases has
been termed “*. . . virtually unflagging . . .”” (Colorado
River, 424 US at 817). See also Zwickler v. Koota(1967)
389 US 241.
‘| A]bstention from the exercise of federal juris-
diction is the exception, not the rule. | Citation. ]
12
(Hawaii Housing Auth. v. Midkiff [1984]
US , 81 L Ed 2d 186, 194;
quoting with approval.)
The central issues in this case are Federal. They are
Constitutional. They deal with the basic civil rights of
people who own property. (See San Diego Gas, 450 US
at 647-653 (Brennan, J., dissenting]; Lynch v. Household
Fin. Corp. [1972] 405 US 538-552.)
In the last eight years, the Ninth Circuit has issued more
published opinions in land use/abstention cases than all
other Circuits combined. Its rule seems to be abstention.
(See Kollsman v. City of Los Angeles [9th Cir 1984]
737 F 2d 830;.C-Y Dev. Co. v. City of Redlands [9th Cir
1983] 703 F 2d 375; Isthmus Landowners Assn. v. State
[9th Cir 1979] 601 F 2d 1087; Santa Fe Land Imp. Co. v.
City of Chula Vista [9th Cir 1979] 596 F 2d 838;
Sederquist v. City of Tiburon [9th Cir 1978] 590 F 2d
278; Newport Inv., Inc. v. City of Laguna Beach [9th Cir
1977] 564 F 2d 893; Rancho Palos Verdes Co. v. City of
Laguna Beach [9th Cir 1976] 547 F 24 1092.)
In C-Y Development, the Ninth Circuit made its land
use rule quite express. That case was based on 42 USC
§ 1983. Acknowledging that this Court has said absten-
tion ought not apply in § 1983 cases, the Ninth Circuit
nonetheless abstained because none of this Court’s
§ 1983 cases had involved land use. (See 703 F.2d at
381.)
This routine application led Judge Reinhardt (in dissent)
to conclude that the Ninth Circuit is attempting to make
abstention ‘“‘. . . the absolute rule in zoning cases rather
than the exception inallcases. . .”’(Kollsman, 737 F 2d
at 844; App. A, p A-30)
The Ninth Circuit’s rule is an affront to this Court. It
flies in the face of all of this Court’s abstention decisions.
Review is deserved.
13
LAND USE CASES ARE NOT SO SENSITIVE
THAT ABSTENTION MUST ALWAYS BE
REQUIRED
In Railroad Comm’n v. Pullman Co. (1941) 312 US
496, 498, this Court held that Federal courts ought not
delve into “*. . . a sensitive area of social policy . . .” by
Constitutional adjudication if state court interpretation of
state law could obviate the need.
That general statement, however, was not intended to
severely restrict Federal jurisdiction. As noted above,
abstention was to be a limited exception, not the rule.
On the subject of a state’s eminent domain power
(involved at bench because this is an action for inverse
condemnation [see U.S. v. Clarke (1980) 445 US 253,
257]), this Court concluded a quarter of a century ago that
the field was not so sensitive as to routinely require
abstention:
“It is suggested, however, that abstention is
Justified on grounds of avoiding the hazard of
friction in federal-state relations any time a
District Court is called on to adjudicate a case
involving the State’s power of eminent domain,
even though, as in this case, the District Court
would simply be applying state law in the same
manner as would a state court. But the fact thata
case concerns a State’s power of eminent do-
main no more justifies abstention than the fact
that it involves any other issue related to
sovereignty. Surely eminent domain is no more
mystically involved with ‘sovereign prerogative’
than a State’s power to regulate fishing in its
waters, [citation], its power to regulate intrastate
trucking rates, [citation], a city’s power to issue
certain bonds without a referendum, [citation],
14
its power to license motor vehicles, [citation],
and a host of other governmental activities
carried on by the states and their subdivisions
which have been brought into question in the
Federal District Courts despite suggestions that
those courts should have stayed their hand
pending prior state court determination of state
law.
‘‘Furthermore, the federal courts have been
adjudicating cases involving issues of state emi-
nent domain law for many years, without any
suggestion that there was entailed a hazard of
friction in federal-state relations.”” County of
Allegheny v. Frank Mashuda Co. [1959] 360
US 185, 191-192; emphasis added.)
In stark contrast to this clear directive from this Court,
the Ninth Circuit Court of Appeals completed nearly a
decade of revisionist lawmaking by noting in this case.
‘We have repeatedly noted that land use planning
is a sensitive area of social policy that meets the
first requirement for Pu//man abstention. | Cita-
tions.]”” (Kollsman, 737 F 2d at 833; App. A,
p A-7)
No other Circuit employs such a knee-jerk holding of
“local sensitivity.” In fact, the other Circuits treat land
use cases the same as any other, refusing reflex deferrence.
(See, e.g., Urbanizadora Versalles, Inc. v. Rivera Rios
[1st Cir 1983] 701 F 24993, 998; Heritage Farms, Inc. v.
Solebury Tp. [3d Cir 1982] 671 F 2d 743, 746-747; City
of Moore v. Atchison, Topeka, & Santa Fe Ry. {10th Cir
1983] 699 F 2d 507, 510; Nasser v. City of Homewood
[11th Cir 1982] 671 F 2d 432, 439; Silverman v. Barry
[DC Cir 1984] 727 F 2d 1121, 1123-1124.)
15
In terms of local sensitivity, there can never have been a
land use case of more local sensitivity than Hawaii
Housing Auth. v. Midkiff (1984) _ US __, 81 L Ed 2d
186, which dealt with the constitutionality of a Hawaiian
Statute designed to redistribute land ownership throughout
the state. If ever a land use case cried out for deference to
local wishes, that was it. Yet, when the State suggested
abstention, this Court refused. Because the state law was
clear (even though unconstrued by state courts) and no
interpretation would remove the Federal issues, abstention
was denied.
The same is true here. The state law is clear. Regardless
of its determination, the Federal Constitutional issues will
remain.’ Under Midkiff, abstention would not have been
warranted before trial. It is certainly improper after trial.
The Ninth Circuit is out of step with this Court and the
other Circuits. Review is needed so American citizens
who live in the Ninth Circuit receive the same treatment
accorded those living elsewhere.
TO ESTABLISH SUFFICIENT UNCERTAIN-
TY OF STATE LAW TO REQUIRE ABSTEN-
TION, MORE IS REQUIRED THAN TO NOTE
THAT COUNSEL FOR ONE OF THE PARTIES
SAYS HE DISAGREES WITH THE DISTRICT
COURT
The majority below concluded that state law was
uncertain. How? By noting that the City’s attorney
disagreed with the District Court’s interpretation. (Kolls-
"Le., even if a state court decides the Kolisman development was
not deemed approved, the Federal question of whether the City’s
severe restriction of the property’s use — conceded by the City’s own
appraiser to render the property not economically useable — will
remain
16
man, 737 F 2d at 834-836; App. A, pp A-8-12) However,
as Judge Reinhardt cogently said in dissent:
“It is not enough simply to say, as the majority
does: the district court says X and the City says
Y; therefore, there is a dispute as to state law;
accordingly, the law is unclear and we must
abstain. In order to conclude that abstention is
appropriate, a court must at least identify which
issues are Critical to the outcome of the litigation
and which involve questions to which the answer
is, in its opinion, actually unclear. The majority
does neither here.” (Kol/sman, 737 F 2d at 839;
App. A, p A-18; Reinhardt, J., dissenting;
emphasis, Judge Reinhardt’s.)
Judge Reinhardt’s dissent is in harmony with this
Court’s teaching, as well as with common sense. The
majority follows neither. As this Court said in Midkiff:
“The dissenting judge in the Court of Appeals
suggested that, perhaps, the state courts could
make resolution of the federal const tutional
questions unnecessary by their construction of
the Act. See 702 F 2d, at 811-812. In the
abstract, of course, such possibilities always
exist. But the relevant inquiry is not whether
there is a bare, though unlikely, possibility that
state courts might render adjudication of the
federal question unnecessary. Rather, ‘|wle
have frequently emphasized that abstention is
not to be ordered unless the statute is of an
uncertain nature, and is obviously susceptible of
a limiting construction.’ Zwickler v. Koota, 389
US 241,251, andn 14, 19 LEd2d 444, 88 SCt
391 (1967), These statutes are not of an uncertain
nature and have no reasonable limiting construc-
tion. Therefore, Pullman-abstention is unneces-
(Al ial
17
sary.” (US , 81 L Ed 2d at 195;
emphasis added. )
To the same effect are Ohio Bureau of Employment Serv.
v. Hodory (1977) 431 US 471, 481 and Mayor v.
Educational Equality League (1974) 415 US 605, 628.
Particularly where the effect of its ruling is to undo
seven years of Federal litigation on the merits and order
the parties to begin again in state court, it seems incumbent
on a Court of Appeals to do more than note the non-
startling fact that the lawyer for the losing party in the
District Court says he disagrees with the District Court’s
legal analysis.
This Ninth Circuit rule will make a shambles of the
abstention doctrine. It ought not be permitted to harden
into precedent.
IT HAS LONG BEEN SETTLED THAT A
DECISION SHOULD BE BASED ON A PEN-
DENT STATE LAW CLAIM RATHER THAN
A FEDERAL CONSTITUTIONAL CLAIM
Every first year law student learns of this Court’s
preference for reaching decisions on non-Constitutional
grounds if that is possible. The point was recently
reiterated in Pennhurst State School & Hosp. v. Halderman
(1984)__ US___., 79 L Ed 2d 67, 89-90:
“This Court long has held generally that when a
federal court obtains jurisdiction over a federal
claim, it may adjudicate other related claims
over which the court otherwise would not have
: jurisdiction. | Citations.] The Cuurt also has held
that a federal court may resolve a case solely on
the basis of a pendent state-law claim, [citation]
and that in fact the court usually should dosoin
order to avoid federal constitutional questions,
LE EEE _—<3O LL
18
[citation]; Ashwander v. TVA, 297 US 288,
347, 80 L Ed 688, 56 S Ct 466 (1936)
(Brandeis, J., concurring) ([I|f a case can be
decided on either of two grounds, one involving a
constitutional question, the other a question of
statutory construction or general law, the Court
will decide only the latter’).”’ (Emphasis added. )
The District Court did what this Court has repeatedly
said it must do. It based the principal thrust of its decision
on a state statutory ground. (Jurisdiction over the Federal
Constitutional issues was reserved.)
What the District Court got for its pains (after seven
years of litigation) was an inexplicable order from the
Court of Appeals vacating its decision and commanding it
to submit an issue to another court.®
The Ninth Circuit’s decision flies in the face of settled
law. But for this Court’s clear preference for avoiding
Constitutional issues, the case could have been decided on
the primary issues tried. (Indeed, it still could be if the case
were remanded for that purpose.) It is unseemly for the
8 The ostensible reason was to obtain a definitive interpretation of
state law from state courts. However, as ably pointed out in Lodestar
Co. v. County of Mono (E.D.Cal.1984) F. Supp. ,
fn. 23, the chances of getting such a determination are
slight. Most California Court of Appeal decisions are not published
and not precedential Few cases reach the Supreme Court. Thus, after
years of delay, there may in fact be no definitive determination of state
law. See, e.g., the plight of Mr. and Mrs. Sederquist. They began
Federal litigation in 1975. The District Court abstained and the Ninth
Circuit affirmed. (Sederquist v. Tiburon [9th Cir. 1978] 590 F.2d
278) Their state court litigation resulted in an unpublished opinion
and their Federal iitigation continues to this day. (See Sederquist v.
Tiburon (9th Cir. 1984] ___ ss F2d
aw NT
19
Ninth Circuit to criticize the District Court for doing what
this Court has commanded.
THE FEDERAL CONSTITUTIONAL RIGHTS
OF THE KOLLSMAN HEIRS OUGHT NOT
BE SACRIFICED ON THE ALTAR OF ABS-
TENTION
What sets this nation apart from the rest of the world is
not merely the recitation in the Constitution that the rights
of individuals are important,’ but their protection by the
judiciary.
That protection of the rights of individuals has been
both the glory and the duty of the Federal courts.
But if the Federal courts weaken in their role as the
individual’s bulwark against unconstitutional state and
local actions, then the rights of individuals will be reduced
to fading words on yellowing parchment. Rights which are
not enforced are not rights at all.
If the genera! rule in land use cases is to abstain, as
Judge Reinhardt’s dissent sadly puts it, then the Federal
Constitutional rights of California property owners are
rendered meaningless.
California courts do not enforce the Federal Constitu-
tional rights of property owners. (Compare Agins v. City
of Tiburon [1979] 24 C 3d 266 [aff'd on other grounds
447 US 255], with San Diego Gas & Elec. Co. v. City of San
Diego|1981] 450 US 621, 647,651,655, fn22, 660-661
[Brennan, J., dissenting procedurally, but apparently
expressing the view of at least five Justices on the
merits].) Even when the gravamen of the complaint is
violation of the Federal Civil Rights Act (42 USC
§ 1983), the California courts ignore Federal law and
apply non-remedial California law. (See Gilliland v.
%Many constitutions do that, including the Soviet Union’s.
20
County of Los Angeles [1981] 126 CA 3d 610, 617.) On
the efficacy of the California “remedy,” see Justice
Brennan’s dissent in San Diego Gas & Elec. Co., 450 US
at 653-656.
Such a result is bad enough when suit is initiated in state
court. But when a plaintiff chooses the Federal forum to
try his Federal Constitutional case (as he has a right to do
| Bell v. Hood (1946) 327 US 678, 681]), and then after
seven years of litigation is told that he must begin anew in
the state courts, one sputters to find an appropriately
descriptive term.
Delay — by itself — violates the Constitutional rights of
Mr. Kollsman’s heirs. (See San Diego Gas & Elec. Co.,
450 US at 656-657.)
The chilling effect on California property owners of
knowing that they must subject themselves to the inhospit-
able atmosphere of the California court system (accompa-
nied by the scandalous delays in getting cases concluded
in metropolitan courts),'° forfeits Federal Constitutional
rights.
That cannot be justice.
CONCLUSION
If the abstention doctrine is to function fairly, the
decision below cannot be permitted to stand. It is the final
nail in a casket the Ninth Circuit Court of Appeals has
been constructing for nearly a decade.
The Ninth Circuit’s abstention doctrine thumbs its nose
at this Court. It removes District Court discretion. It finds
extreme local sensitivity in all land use cases while not
finding it in public school (Canton v. Spokane School
10It takes five years for a civil case in Los Angeles Superior Court to
proceed from complaint filing to trial.
21
Dist. #81 [9th Cir 1974] 498 F 2d 840), motor vehicle
(Pue v. Sillas [9th Cir 1980] 632 F 2d 74), and prison
condition ( Toussaint v. Yockey [9th Cir 1984] 722 F 2d
1490) cases. It finds automatic uncertainty in local law
because the lawyer for the losing party says he disagrees
with the District Court’s legal analysis.
It is time for this Court to call a halt.
For the Ninth Circuit to be permitted to establish its
own body of law — at odds with the decisions of this Court
and the other Circuits — in the hope that this Court will be
too busy or uninterested in procedural decisions to
intervene, contravenes elemental fairness.
The Petitioners pray that a writ issue to conform the law
of the Ninth Circuit to that of the rest of the Nation.
Respectfully submitted,
JERROLD A. FADEM
MICHAEL M. BERGER
FADEM, BERGER & NORTON
By: MICHAEL M. BERGER
Attorneys for Petitioners
APPENDIX
A-1
Eva KOLLSMAN, City National Bank,
Tashi Land Corporation, a New York
corporation, Plaintiffs-Appellees,
V.
GITY OF LOS ANGELES, a municipal
corporation, Defendant-Appellant.
No. 83-5798.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 4, 1984.
Decided July 17, 1984.
Michael M. Berger, Fadem, Berger, McIntire & Norton,
Los Angeles, Cal., for plaintiffs-appellees.
William L. Waterhouse, Los Angeles, Cal., for
defendant-appellant.
Joseph Barbieri, Deputy Atty. Gen., San Francisco,
Cal., for amicus Cal. Coastal Comm. et al.
Appeal from the United States District Court for the
Central District of California.
Before SNEED and REINHARDT, Circuit Judges, and
SOLOMON’, District Judge.
SNEED, Circuit Judge:
Paul Kollsman sought approval from the City of Los
Angeles to develop an eighty-five acre subdivision. The
City denied the application on the ground that Kollsman
had failed to submit requested information. Kollsman
filed an action in federal district court alleging that the
City’s land use regulations violate the Fifth and Fourteenth
*Honorable Gus J. Solomon, Senior United States District Judge for
the District of Oregon, sitting by designation.
APPENDIX A
A-2
Amendments and provisions of state law. Without addres-
sing the federal consititutional claims, the district court
held that Kollsman’s subdivision application must be
deemed approved under California law. We conclude that
the district court, 565 F.Supp. 1081, should have abstained
and allowed state courts to decide the questions of land
use planning. We therefore vacate the judgment of the
district court and remand.
I.
FACTS AND PROCEEDINGS BELOW
Paul Kollsman proposed to develop a seventy lot
subdivision on an eighty-five acre tract of land located in
the Santa Monica Mountains. On January 12, 1977,
Kollsman submitted to the City of Los Angeles a proposed
tract map and an “environmental Assessment Form.”
The City notified Kollsman on February 16, 1977, that it
would not accept his subdivision application before he
submitted a draft Enivronmental Impact Report (EIR).
Kollsman submitted a first draft EIR on July 28, 1977.
By a memorandum dated August 16, 1977, the City
informed Kollsman that two additional sections should be
added to the EIR. Kollsman submitted a second draft EIR
on September 13, 1977. The City circulated this draft for
comment among concerned homeowner groups. On
November 30, 1977, the City sent Kollsman a memoran-
dum requesting further environmental information. The
City sought information on development alternatives that
would conform to the City’s ‘‘slope denisty formula’’ and
utilize “‘cluster development” as opposed to individual
units.! Four months later, on March 3, 1978, Kollsman
'The “slope density formula” is part of the “community plan” for
the Bel Air-Beverly Crest District of Los Angeles, which includes
Kollsman’s land. The City prepares community plans as part of the
general plan required by California statutes. See Cal.Gov.Code §
A-3
submitted certain information requested by the City. He
did not, however, submit information on alternative
development plans.
The City informed Kollsman in a letter dated May 11,
1978, that the draft EIR could not be compl«ted until he
submitted information on alternative development plans
and the slope density formula. On advice cf counsel,
Kollsman did not provide the additional information. The
City mailed Kol!sman a form notice of “Determination of
Incompleteness of Application’”’ on November 22, 1978.
Two months later, on January 12, 1979, the City informed
Kollisman that a public hearing could not be held on his
application without completion of the EIR. On November
14, 1979, the City sent Kollsman a “Notice of Intent to
Disapprove without Prejudice” for the reason that he had
not submitted requested information. The City denied
Koilsman’s subdivision application on November 26,
19792
Concurrent with the City’s processing of the sub-
division application, Kollsman contested the land use
regulations in federal district court. Kollsman filed a six-
65302. The community plan shows specific land uses and densities of
development for the various communities of the City. The City
Planning Commission adopted the Bel Air-Beverly Crest District
plan on March 4, 1976; the Los Angeles City Council endorsed the
plan on January 13, 1977.
The slope density formula determines the number of units allowed
on land designated as “minimum density housing.” Under the
formula, the maximum number of dwelling units depends on the
average natural slope of the land. The slope density formula indicates
that no more than nine dwelling units may be permitted on Kollsman’s
85 acres.
*The City notified Kollsman at this time that he could appeal the
denial of his application to the City Planning Commission. On
December 20, 1979, the district court approved a stipulation agreed
to by Kollsman and the City suspending the administrative appeal.
A-4
count complaint on March 1, 1977. Counts I and III
sought to invalidate the slope density formula on con-
stitutional theories of inverse condemnation and equal
protection. Court III requested $6.3 million in damages
for inverse condemnation. Counts IV, V, and VI involved
state law claims. The district court granted the City’s
motion to dismiss Count V on April 25, 1977, and granted
summary judgment in favor of the City on Counts IV and
VI on March 28, 1978. In March and April of 1979, a
seven-day bench trial was held on the constitutional
claims.
On March 21, 1980, Kollsman filed a motion to submit
additional evidence that raised, for the first time, the
argument that his subdivision application should be
“deemed approved” pursuant to California statutes. The
court held two additional days of trial in April 1981. On
November 11, 1981, the court issued an opinion stating
that it had found for the plaintiff on the issue of liability and
directing plaintiff's counsel to submit proposed findings of
fact and conclusions of law. Over the City’s opposition,
the court on February 22, 1982, granted Kollsman’s
motion to amend the complaint to conform to proof. The
amendment added two counts: Count VII asserts that
Kollsman’s application must be “deemed approved”
under California law, and Court VIII claims rights under
42 U.S.C. § 1983.
On February 2, 1983, the district court held that
Kollsman’s subdivision application must be “deemed
approved” pursuant to California Government Code
Sections 65950 and 65956(a).° This result is based on the
3Cal.Gov.Code §65950 provides in pertinent part:
Any public agency which is the lead agency for a
development project shall approve or disapprove such
project within one year from the date on which an
A-5
court’s conclusion that Kollsman’s application was
complete in fact and must be “deemed complete” on
November 22, 1978. The court asserted that this con-
clusion is valid even though the City sent Kollsman a
notice on that date stating that his application was
incomplete. The district court found that the City could
not in good faith determine that the application was
incomplete when Kollsman had submitted all information
that the City could lawfully request under applicable
California statutes. The application was complete, and we
must read its letter of November 22, 1978 to say that.
Because the City did not act on Kollsman’s application
within one year from November 22, 1978, the court
concluded that the application must be deemed approved.
The City filed a timely notice of appeal.‘
Count VII raises difficult state law issues of great
importance to the people of California. As already
indicated, abstention is the appropriate course here.
We, therefore, vacate and remand.
application requesting approval of such project has been
received and accepted as complete by such agency.
Cal. Gov.Code §65956(a) provides:
In the event that a lead agency or a responsible agency
fails to act to approve or to disapprove a development
project within the time limits required by this article, such
failure to act shall be deemed approval of the development
project.
*Paul Kollsman died before the district court entered its judgment.
We granted the motion of his widow, Eva Kollsman, and City
National Bank for substitution as parties herein. Mrs. Kollsman and
the bank are administrators of Paul Kollsman’s estate. For convenience,
we will refer to appellees as “Kollsman.”
A-6
IL.
DISCUSSION
The abstention doctrine based on Railroad Commission
v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.
971 (1941) is a narrow exception to the district court’s
duty to decide cases properly before it. Pullman allows
postponement of the exercise of federal jurisdiction when
“a federal constitutional issue . . . might be mooted or
presented in a different posture by a state court deter-
mination of pertinent state law.’’ C- Y Development Co. v.
City of Redlands, 703 F.2d 375, 377 (9th Cir. 1983)
(quoting County of Allegheny v. Frank Mashuda Co.,
360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163
(1959)).
[1] We apply an abuse of discretion test in reviewing
district court abstention decisions. E.g., C- Y Development
Co., 703 F.2d at 377. This standard of review, however,
does not preclude invoking abstention in cases in which
there exist compelling reasons to allow state courts to
resolve issues of state law. Cf Richardson v. Koshiba,
693 F.2d 911, 915-18 (9th Cir. 1982) (ordering Pullman
abstention after raising issue sua sponte). We believe that
this is such a case.°
We have relied on three criteria for the application of
Pullman abstention: (1) the complaint must touch a
‘Our earlier refusal to grant a writ of mandamus requiring the
district court to abstain, No. 78-1557 (9th Cir. June 7, 1978), does
not preclude us from now holding that the district court should have
abstained. First, we apoly a more stringent standard of review under
our mandamus jurisdiction than when reviewing on direct appeal a
district court's order under the abuse of discretion standard. Badham
v. U.S. Dist. Ct. for N.D. Cal, 72! F.241170, 1171 (9th Cir. 1983).
Second, our order denying the petition for mandamus was issued
before Kolisman raised the argument that his application should be
deemed approved under Cal:fornia law. Thus, our earlier order did
not consider the state law issues now involved in the case.
ae aaa Sa aaa
A-7
sensitive area of social policy into which the federal courts
should not enter unless there is no alternative to adjudi-
cation; (2) a definitive ruling on the state issues by a state
court could obviate the need for constitutional adjudication
by the federal court; and (3) the proper resolution of the
potentially determinative state law issue is uncertain.
Richardson, 693 F.2d at 915; see C-Y Development Co.,
703 F.2d at 377; Canton v. Spokane School Dist. No. 81,
498 F.2d 840, 845 (1974).
[2] The first and second criteria are clearly satisfied in
this case. We have repeatedly noted that land use planning
is a sensitive area of social policy that meets the first
requirement for Pullman abstention. E.g., C- Y Develop-
ment Co., 703 F.2d at 377; Santa Fe Land Improvement
Co. v. City of Chula Vista, 596 F.2d 838, 840 (9th Cir.
1979); Ranchos Palos Verdes Corp. v. City of Laguna
Beach, 547 F.2d 1092, 1094 99th Cir. 1976). The second
requirement is also met. The conclusion eventually reached
by the district court illustrates that a ruling on Kollsman’s
state law claims could obviate the need to address the
federal constitutional claims.
We also find that the third requirement for Pullman
abstention is met here. The district court’s decision rests
on an interpretation of interlocking statutory provisions
enacted during the course of this litigation. The district
court acknowledged that there have been few state cases
that interpret the particular California code sections
underlying its decision. Slip Op. at 21. Moreover,
appellants persuasively argue that resolution of this case
requires attention not only to Chapter 4.5 of the California
Government code, the focus of this district court’s opinion,
but also consideration of the interrelation of that chapter
with the Subdivision Mar Act and the California Environ-
mental Quality Act.®
*The California Environmental Quality Act, Cal. Pub.Res.Code
A-8
The uncertainty of state law issues is illustrated by
comparing the reasoning of the district court with the
City’s arguments before this court. For example, the
district court relied on section 65941 of the California
Government Code to conclude that the City could not in
good faith refuse to accept Kollsman’s application as
complete.’. That section, the court held, prohibits the City
from requiring Kollsman to submit the “informational
equivalent” of an EIR. Because the district court found
that Kollsman had submitted sufficient information to
allow the City to prepare a legally adequate EIR, the court
held that the City must consider Kollsman’s application
complete even though the City insisted that it was not. The
City rejects this interpretation and argues that the request
§21000 et seq., requires preparation of an EIR whenever a project
may have a significant adverse impact on the environment. No Oil,
Inc. v. City of Los Angeles, 13 Cal.3d68, 118 Cal. Rptr. 34,529 P.2d
66 (1974).
The California Subdivision Map Act prohibits the City from
approving projects that do not comply with the general and specific
area plans. Cal.Gov.Code § §66473.1, 66474.61; Woodland Hills
Residents Ass'n, Inc. v. City Council of the City of Los Angeles, 44
Cal. App.3d 825, 118 Cal. Rptr. 856 (1975).
’Cal.Gov.Code §65941 provides:
The information compiled pursuant to section 65940
shall also indicate the criteria which such agency will
apply in order to determine the completeness of any
application submitted to it for a development project.
In the event that a public agency is a lead agency for
purposes of Division 13 (commencing with Section
21000) of the Public Resources Code, such criteria shall
not require the applicant to submit the informational
equivalent of an environmental impact report as part of a
complete application; provided, however, that such cri-
teria may require sufficient information to permit the
agency to make the determination required by Section
21080.1 of the Public Resources Code.
A-9
for information was authorizied by the City’s administra-
tive guidelines for evaluating a development project's
consistency with the general plan.*. Moreover, the City
maintains that section 65941 was not applicable to local
agencies at the time it determined the application was
incomplete.’
The district court and the City also differ on the
completeness of Kollsman’s application. The district
court noted that section 65943 of the California Govern-
ment Code requires that “[iJn the event that the application
is determined not to be complete, the agency’s determin-
ations shall specify those parts of the application which
are incomplete and shall indicate the manner in which they
can be made complete.” The district court found that the
City’s letter of November 22, 1978, did not satisfy this
requirement and concluded that the City’s determination
of incompleteness was both incorrect and ineffective. It
*The City Office of Planning and Research adopted ‘Permit
Guidelines” to carry out Chapter 4.5 of the Government Code.
Permit Guidelines § 1087.1, effective January 31, 1978, provides:
Local agencies should adopt as one of their criteria for
completeness the requirement that the development pro-
ject be shown in the application to be consistent with the
applicable general plan required by Government Code
sections 65300 eet seq,
The City argues that this provision authorized it to demand that
Kollsman submit information on development alternatives consistent
with the slope density formula.
*Section 65940, referred to in the first paragraph of §65941, did
not apply to local agencies until June 30, 1983. Before it was
amended in 1982, see 1982 Cal.Sate Ch. 84, § 1, the first paragraph
referred only to state agencies.
Kollsman responds by noting that the language in the second
paragraph of §65941 refers to “a public agency” and that the City
comes under the statutory definition of “public agency.” See
Cal.Gov.Code §65932.
A-10
therefore concluded that the City had failed to satisfy the
time limits of section 65924.'°. The district court held that
the legislature intended that if the substantive requirements
of section 65943 are not satisfied within the specified time
limits, a development application should be deemed
complete.'' Therefore, Kollsman’s application must be
deemed accepted as complete on Novemer 22, 1978.!2
'°Cal.Gov.Code §65924 provides:
With respect to any development project an application
for which has been accepted as complete prior to January
1, 1978; the deadlines specified in Section 65950 and
65952 shall be measured from January 1, 1978. With
respect to such application received prior to January |,
1978, but not determined to be complete as of that date, a
determination that the application is complete or in-
complete shall be made not later than 60 days after the
effective date of the act amending this section in 1978.
The amendment adding the last sentence to §65924 became
effective on September 26, 1978. Thus, the City had until November
26, 1978, to determine whether Kollsman’s application was complete.
'' Section 65943 provides in pertinent part:
Not later than 30 calendar days after any public agency
has received an application for a development project,
such agency shall determine in writing whether such
application is complete and shall immediately transmit
such determination to the applicant for the development
project.
As originally enacted, §65943 did not specify the consequences of
a public agency’s failure to make the determination within the
specified time limit. Moreover, §65924 provides a separate time
period for the determination of completeness on applications, such as
Kollsman’s that were submitted before January |, 1978. See supra
note 10. In 1979, §65943 was amended to provide that “if such
written determination is not made within 30 days after receipt of the
application, the application shall be deemed complete for purposes of
this chapter.” This amendment became effective on October 2, 1979.
'2The district court's rationale for concluding that the application
must be deemed complete on November 22, 1978, is somewhat
opaque. The district court stated that as early as May 12, 1978, the
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The city disputes each link in the district court’s
reasoning. The City argues that the district court erred by
applying section 65943, as amended, retroactively to
Kollsman’s application,'? and even if the section applies
retroactively, an application should not be deemed
complete even when an agency makes a timely, but
erroneous determination that an application is incomplete.
The City insists that the earliest possible date that
City had all of the information that it could lawfully require Kollsman
to supply. At 1095. The City, the district court found, suspended
processing of the application and did not make a bona fide determin-
ation of completeness or incompleteness at any time prior to
November 22, 1978. /d. After observing that the legislature intended
that applications should be deemed complete “in the event of failure
to meet the substantive requirements prescribed in §65943 within the
time limits,’ and that Kollsman’s application was in fact complete,
the district court concluded that the application must be deemed
complete as of November 22, 1978. At 1095.
Kollsman argues that a letter from the City dated November 14,
1979 may be read as a concession that the application was complete
on November 22, 1978. The letter notified Kollsman that the City
intended to disapprove the application on November 21, 1979, in
order to meet the one-year deadline. The district court observed that
“the notice of November 14, 1979, reflects an awareness that the
Kollsman application was complete in fact on November 22, 1978.”
At 1096. Nonetheless, the district court did not specifically rely on
this observation in concluding that the application must be deemed
complete on November 22, 1978. Instead, the court made its
comments concerning the November 14, 1979, letter when it
considered whether the application should be deemed approved. See
at 1096.
'5The legislature specifically addressed the problem of pending
application when it amended §65924. See supra note 10. When the
legislature amended § 65943, however, it did not distinguish between
pending and subsequent applications.
The City argues that before the effective date of the “deemed
complete” provision of §65943, an applicant’s remedy for failure to
comply with the time limits was to seek a writ of mandamus directing
the agency to make the completeness determination.
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Kolisman’s application could be deemed complete is
November 26, 1978.'4 If the application is deemed
complete on this date, the City’s rejection of the application
on November 26, 1979 satisfies the one-year time limit
provided by section 65950.'°
Even if we assume that the district court correctly held
that Kollsman’s application must be deemed complete on
November 22, 1978, uncertainty still obscures the legal
consequences of that holding. The district court concluded
that because the City had not satisfied the one-year
deadline to approve or disapprove a completed application,
the application must be deemed approved. At 1096.
Various California state agencies, participating as amicus
curiae, argue that Kollsman’s application may not be
deemed approved because he failed to submit a project
proposal that complies with the California Environmental
Quality Act and the Subdivision Map Act.'® The City
'4The City was not required to make a determination of the
completeness of Kollsman’s application before November 26, 1978.
See supra note 10. The City argues that if the district court correctly
held that the determination of incompleteness on November 22,
1978, was ineffective, the proper conclusion is that this determination
must be disregarded. Thus, if §65943 applies retroactively, the City
reasons that the earliest date that the application could be deemed
complete is November 26, 1978.
'S See supra note 3. If the one-year period commenced on Novem-
ber 26, 1978, the City’s disapproval of the project on November 26,
1979 was timely. November 25, 1979 was a Sunday, which extended
the City’s time to act until the next working day. See Cal.Civ.Code
§§7, 10. The City also maintains that its requests for additional
information should be interpreted as implicit denials of Kollsman’s
application. Cf Carmel Valley View, Lid. v. Maggini, 91 Cal. App.3d
318, 323, 155 Cal.Rptr. 208, 211-12 (1979) (request for supplemental
information considered implicit disapproval for purposes of “deemed
approved” provision of Subdivision Map Act). Kollsman attempts to
distinguish Maggini by arguing that here the district court found that
the City acted in bad faith.
'6See supra note 6. Kollsrnan counters by arguing that the later
enactment of Chapter 4.5 of the California Governmnet Code takes
precedence over the earlier legislation.
A-13
argues that if Kollsman’s application is deemed approved,
such approval must be subject to appeal to the City
Planning Commission and the City Council.'? Alterna-
tively, the City maintains that Kollsman’s subdivision
may only be deemed approved subject to the slope density
formula.
These state law issues require us to conclude that the
district court abused its discretion by failing to abstain.
This case implicates the concerns underlying the first and
third criteria for Pullman abstention.'® Land use planning
'7The City relies on Woodland Hills Residents Ass'n, Inc. v. City
Council, 44 Cal.App.3d 825, 118 Cal. Rptr. 856 (1975), which
construed a then effective “deemed approved” provision of the
Subdivision Map Act. Appellants challenged an advisory agency’s
approval of a subdivision. The trial court concluded that this action
was deemed approved by the Planning Commission and the City
Council because each body had voted by a tie vote to deny appeal
from the advisory agency’s decision. The Court of Appeals reversed,
and held that the City Council had to determine if the project was
consistent with the City’s general plan. See id. at 830-31, 837-38,
118 Cal.Rptr. at 858-59, 863-69.
'8The Supreme Court’s recent decision in Pennhurst State School
& Hospital v. Halderman, U.S. ___, 104 §.Ct. 900, 79
L.Ed.2d 67 (1984), indicates that abstention often will be appropriate
when state land use regulations are challenged on state and federal
grounds. Pennhurst held that the Eleventh Amendment bars federal
courts from ordering state officials to conform their conduct to state
law. The court acknowledged that under Ex parte Young, 209 U.S.
123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and Edelman v. Jordan,
415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Eleventh
Amendment poses no barrier to prospective relief against state
officials for violation of federal law. Justice Powell, writing for the
Court in Pennhurst, noted:
A federal court’s grant of relief against state officials on
the basis of state law, whether prospective or retroactive,
does not vindicate the surpeme authority of federal law.
On the contrary, it is difficult to think of a greater intrusion
on state sovereignty than when a federal court instructs
state officials on how to conform their conduct to state
law. Such a result conflicts directly with the principles of
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is a sensitive area of social policy. At issue here is the
application of Chapter 4.5 of the California Government
Code, which has as its purpose the establishment of clear
requirements for the approval of development projects and
the expediting of decisions on such projects. Cal.Gov.
Code section 65921. Chapter 4.5, however, must be
reconciled with earlier legislation, such as the California
Environmental Quality act, which requires a balancing of
the policies underlying Chapter 4.5 with the concerns
reflected in the earlier enactments. This task is best left to
the state courts. Cf Rancho Palos Verdes Corp., 547
F.2d at 1095 (abstention appropriate in case involving
recently enacted “web of statutes” that attempts to
“* grapple with difficult land use problems’’). We conclude,
therefore, that abstention is requires in this case.!®
federalism that underlie the Eleventh Amendment. We
conclude that Young and Edelman are inapplicable in a
suit against state officials on the basis of state law.
104 S.Ct. at 911.
In a suit in which relief would run against the state, Pennhurst
indicates that plaintiffs must go to state court to obtain relief based on
state law. This is true even in cases in which the state law claims are
pendent to federal claims. See id. at 919-20. Our holding in this case
does not depend on Pennhurst; we need not determine if Kollsman’s
suit is in fact a suit against the state. Cf id. at 920 n. 34 (noting that
suit nominally against local government officials is barred if relief
effectively runs against state). We merely observe that state courts
may be the sole forum for effective relief for state law claims in land
use cases involving state and federal law. This fact provides a very
persuasive grounds for abstention in such cases.
'YKollsman relies on Shamrock Development Co. v. City of
Concord, 656 F.2d 1380 (9th Cir. 1981) and Midkiff v. Tom, 702
F.2d 788 (9th Cir. 1983) to support his argument that abstention is
not required in this case. We believe that Shamrock Development
and Midkiff are distinguishable. In the former case, we held that
although abstention would have been appropnate, the district court
had not abused its discretion by retaining the case. In Shamrock
Development, a developer claimed that a city had violated state law
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Because the district court should have abstained, we
vacate its judgment and remand. At the request of either
party, the district court should retain jurisdiction of the
federal constitutional issues pending proceedings in the
state courts. See, e.g., Migra v. Warren City School
District Bd. of Ed., U.S. , 1048S. St. 892, 898 n.
7, 79 L.Ed.2d 56 (1984); England v. Louisiana State
Board of Medical Examiners, 375 U.S. 411, 84 S.Ct.
461, 11 L.Ed.2d 440 (1964); Richardson, 693 F.2d at
918.
VACATED and REMANDED.
REINHARDT, Circuit Judge, dissenting:
I respectfully dissent.
I believe that the majority errs in holding that the district
court abused its discretion by not abstaining from deciding
the merits. There are no uncertain state law questions that
must be resolved here. Rather, the case turns principally
on a factual issue with a painfully obvious answer. Moreover,
I believe that the majority’s dispostion of the case
illustrates how procedural rules intended to aid the federal
and the state and federal constitutions by conditioning approval of a
subdivision on the developer’s dedication of land for city street
expansion. We believe that the case before us involves issues that are
more complicated and more intrusive into a sensitive area of social
concern than those involved in Shamrock Development. In Midkiff,
the state law issues were not uncertain and their resolution would not
obviate the need to address federal constitutional issues. See 702
F.2d at 789 n. 1.
Kollsman also argues that abstention will create unjust delay in the
determination of his state law claims. This consequence, however,
must be accepted when the demands of comity and federalism require
abstention. See C- Y Development Co., 703 F.2d at381. Nordoes the
fact that Kollsman also raised claims under 42 U.S.C. § 1983 alter
our conclusions that abstention is appropriate. See id.
A-16
judiciary in performing its duties can, if misapplied, serve
to deprive parties of fair and adequate resolution of their
dispute. By unnecessarily and improperly invoking the
abstention doctrine, the majority does a disservice to both
parties, and no favor to the federal courts. Rather than
vacate the district court’s decision on abstention grounds,
we should reverse its state law decision on the merits and
remand the case to the district court for resolution of
Kollsman’s constitutional claims.
In January 1977, Pau! Kollsman submitted to the City
of Los Angeles an application for the development of a
seventy lot subdivision. While that application was pending,
he filed an action in district court containing both state and
federal claims.! After considering the arguments for
abstaining, the district court ruled that abstention was not
appropriate.? The district court went on to dispose of the
action on state law grounds and never reached the federal
claims.
The district court held, in what must have been a
surprise to all concerned, that, under California law,
Kollsman’s application was accepted as complete on
November 22, 1978 and was deemed to be approved as a
result of the City’s failure to act by November 22, 1979.
Apparently finding it difficult to accept the district court’s
singular approach to the issue, the majority concluded that
there are too many uncertain questions of state law
involved and abstention is therefore warranted. I, on the
other hand, think it clear that the district court wholly
! Although the majority does not specify the precise basis of the
district court’s jurisdiction, the district court stated that it had both
divesity and federal question surisidiction. We have jurisdiction over
the appeal of the district court’s final decision under 28 U.S.C. § 1291
(1982).
2In deciding not to abstain, the district court suggested that its
decision turned on the conclusion that it was capable of interpreting
the state law “with minimum interference in state processes.”
A-17
ignored the plain requirements of the California Govern-
ment Code as well as the uncontrovertible facts when it
decided that the City had accepted Kollsman’s application
as complete. In my opinion, there are no unclear or
uncertain questions of state law that require resolution in
this case.
The district court, intentionally or otherwise, circum-
vented the provisions of California law by finding as a
matter of fact that the City had acepted Kollsman’s
application as complete. Because its critical finding of fact
is so clearly erroneous,the district court’s decision cannot
stand. It is obvious from the record before us that the City
did the precise opposite of that which the district court
says it did. The City express/y found that the application
was incomplete, not complete. Moreover, even if, under
California law, Kollsman’s application could have been
deemed complete, that event would not have occured until
several days late on November 26, 1978. Even in that
case, the City could not be deemed to have approved the
application, for the City subsequently explicitly dis-
approved the application in a timely manner. Thus,
contrary to the district court’s assertion, it is absolutely
clear that the City never approved the application,
explicitly or by operation of law.
The majority unnecessarily raises many state law
questions that it says have unclear answers. However, we
need not resolve any of those state law issues in order to
decide this case. We can and must view the issue of the
appropriateness of abstention differently after the district
court has decided the case on the merits than we would at
the outset of the litigation. When an abstention motion is
made early in the proceedings, the court will often not be in
a position to know which issues will prove determinative
or even which issues it will be necessary to consider. Much
may depend on how the parties decide to develop facts that
A-18
are not yet before the court and how the court then resolves
particular factual questions: whether or not a court must
proceed down a particular road often will be determined
by the decisions that are made at the preceding crossroad.
However, after the tria! is over and the facts and the law
have both been fully explored, we can determine with
certainty what, if any, state law questions must be decided
and whether the answer to any such questions is unclear.
The majority therefore errs in justifying abstention by
raising many state law questions simply because at first
blush they may appear to be of some relevance; in fact, a
careful review of the fully developed record demonstrates
that those questions are wholly irrelevant to the proper
resolution of the dispute before us.
The majority errs in another basic respect in its
approach to the abstention doctrine. It is not enough
simply to say, as the majority does: the district court says
X and the City says Y; therefore, there is a dispute as to
state law; accordingly, the law is unclear and we must
abstain. In order to conclude that abstention is appropriate,
a court must at least identify which issues are critical to the
outcome of the litigation and which involve questions to
which the answer is, in its opinion, actually unclear. The
majority does neither here.
THE INAPPLICABILITY OF THE
ABSTENTION DOCTRINE
The general rule concerning the exercise of federal
jurisdiction was once simple:
The judiciary cannot, as the legislature may,
avoid a measure, because it approaches the
confines of the constitution .... with whatever
doubts, with whatever difficulties, a case may be
attended, we must decide it, if it be brought
before us. We have no more right to decline the
eT ee
A-19
exercise of jurisdiction which is given, than to
usurp that which is not given. The one or the
other would be treason to the constitution.
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed.
257 (1821) (Marshall, C.J.).
Over time, however, the Supreme Court has made
limited inroads on that rule. One example is the abstention
doctrine, originally created in Railroad Commission of
Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85
L.Ed. 971 (1941). “[T]he Supreme Court has stated that
the doctrine of abstention ‘is an extraordinary and narrow
exception to the duty of a District Court to adjudicate a
controversy properly before it.’ ’’ Hillery v. Rushen, 720
F.2d 1132, 1137 (9th Cir. 1983) (quoting County of
Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79
S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959)); see, e.g.,
Colcrado River Water Conversation District, v. United
States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47
L.Ed.2d 483 (1976) C-Y Development Co v. City of
Redlands, 703 F.2d 375, 377 (9th Cir. 1983).
Designed for reasons of federalism and for the purpose
of making it possible to avoid the unnecessary resolution
of constitutional questions, the abstention doctrine allows
a district court to exercise its equitable powers in extra-
ordinary instances to abstain from resolving state law
issues. See, e.g., Pue v. Sillar, 632 F.2d 74, 78 (9th Cir.
1980) (citing Baggert v. Bullitt, 377 U.S. 360, 84 S.Ct.
1316, 12 L.Ed.2d 377 (1964)). In reviewing a district
court's decision whether “compelling reasons” justify
application of the abstention doctrine, we apply an abuse
of discretion standard. See, e.g., Midkiff v. Tom, 702
F.2d 788, 789 n. 1, 799 (9th Cir. 1983), reversed on other
grounds, sub nom. Hawaii Housing Authority v. Midkiff,
U.S. , 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984).
We have been extremely hesitant to find that a district
A-20
court abused its discretion in deciding state law questions.
For example, in a case involving a municipal zoning
decision, we refused to hold that the district court abused its
discretion in deciding not to abstain; we did so even though
it “was a case in which abstention would have been
advisable, and well within the discretion of the court... .
State law questions clearly predominated over federal
questions. But we have no basis for holding that it was an
abuse of discretion to retain the case.”” Shamrock
Development Co. v. City of Concord, 656 F.2d 1380,
1385 99th Cir. 1981).
As the majority correctly restates, we have relied
on three criteria in evaluating the propriety of the appli-
cation of the abstention doctrine. See, e.g., Canton v.
Spokane School District No. 81, 498 F.2d 840, 845 (9th
Cir. 1974). The first criterion is that the complaint must
involve a “sensitive area of social policy”’ that is best left
to the states to address.‘ The second criterion is that a
ruling on the state law issue may render unnecessaiy the
The majority's decision is based entirely on its view that the
district court should have abstained. Thus, to reach its result, the
majority was required to appiy an abuse of discretion standard. It is
far from clear why the majority believes that the district court's
decision was not only wrong but that it constituted an abuse of
discretion. I, on the other hand, believe the district court was right not
to abstain but that it based that decision on the wrong reasons. I first
review the district court's substantive decisions regarding state law
issues under the standard we normally use to review such decisions.
Having concluded that the district was wholly incorrect regarding the
merits of those state law issues, | believe it is then appropriate to
review the abstention issue under a de novo standard. However, |
would reach the result I do here regardless of the standard of review
applicable to any of these questions.
*I agree with the district judge that the effect of any decision here as
to the state law questions, whatever it might be, will for practical
reasons be so limited that the first criterion is not met. See infra p
843,
A-21
resolution of a constitutional question. The final factor,
which I believe is dispositive here, is whether the proper
resolution of the possibly determinative state law issue is
uncertain. See, e.g., Pue v. Sillas, 632 F.2d at 78-81.
If the proper resolution of the state law question is
certain, abstention if improper. Even if the particular issue
has never been addressed by the state courts, the proper
resolution of a state law question may be certain. See., e.g.
Harman v. Forssenius, 380 U.S. 528, 534-35, 85 S.Ct.
1177, 1188-89, 14 L.Ed.2d 50 (1965); Meredith v.
Winter Haven, 320 U.S. 228, 232, 234-35, 64 S.Ct. 7,
10-11, 88 L.Ed. 9 (1943); Hillery v. Rushen, 720 F.2d
1132, 1137 (9th Cir. 1983); Midkiff v. Tom, 702 F.2d at
789-90 n. 1; see also Field, Abstention in Consitutional
Cases, 122 P.Pa.L.Rev. 1071, 1092 (1974) (arguing in
favor of **|l]imiting abstention to cases in which the state
law issue is extremely unclear’; (emphasis added)). Thus,
even though the district court said that “*[t|here have been
few cases which interpret the California code sections
which are involved in this case,” 565 F.Supp. 1081,
1090, that alone would not mandate abstention.
Although several interrelated provisions of California
law are raised by one or the other of the parties, the facts of
this case, and the express language of the provisions that
determine its results, ar such that it is not necessary to
resolve any unclear questions of state law. The one legal
theory that the district court seems to be suggesting may
readily be determined to be wholly without foundation.
Then, when the simple critical factual question raised by
the district court is isolated and given even the most
cursory consideration, the outcome of the case becomes
absolutely clear, whatever uncertain state law questions
may otherwise be said to exist are no longer of any
possible relevance. In short, the majority’s entire list of
“uncertain” state law questions consists of questions that
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we need not, and should not, resolve in this case.
Accordingly, the majority’s invocation of the abstention
doctrine is unnecessary and inappropriate.
THE DISTRICT COURT'S DECISION
It is clear that under California law the City was
required to determine whether Kollsman’s application was
complete and notify him in writing of that determination by
November 26, 1978; in addition, if the City determine that
the application was not complete it was required to specify
the deficient parts of the application in the written
notification. There can be no dispute as to the state law on
those points.°
‘As enacted in 1977, with an effective date of January 1, 1978,
Cal.Gov't Code §65943 (Deerings 1979) stated that:
Not later that 30 calendar days after any public agency
has received an application for a development project,
such agency shall determine in writing whether such
application is complete and shall immediately transmit
such determination to the applicant for the development
project. In the event that the application is determined not
to be complete, the agency's determination shall specify
those parts of the application which are incomplete and
shall indicate the manner in which they can be made
complete.
However, Cal.Gov't Code §65924 (Deerings 1979) as enacted in
1977 and amended in 1978 established a different time limitation for
applications, like Koilsman’s, filed before, but not determined to be
complete by, January 1, 1978. Section 65924, in relevant part, states
that
[with respect to such application received prior to
January |, 1978, but not determined to be complete as of
that date, a determination that he application is complete
or incomplete shall be made not later than 60 days after
the effective date of the act amending this section in 1978.
Because section 65924 became effective on September 26, 1978, the
City had 60 days from September 26, 1978, or until November 26,
1978, to determine whether Kollsman’s application was complete.
Neither the district court nor any party diputes the applicability of this
section to Kollsman’s appeal.
_ eee
A-23
The City informed Kollsman in a letter dated Novem-
ber 22, 1978, that his application had been “determined to
be incomplete,” and stated what information was missing
from the application. The district court seemingly relied
on two grounds in holding that by sending the letter the
City accepted the application as complete on November
22, 1978. First, the district court concluded that the
application in fact was complete under California law; it
then apparently decided that, for that reason, the letter
must be read as having the opposite effect of its stated
purpose. Second, the district court apparently read a
subsequent letter of November 14, 1979 as somehow
reversing, with retroactive effect, the plain meaning of the
letter of November 22, 1978. Neither of these arguments
can withstand any level of scrutiny, and neither purports to
rely on any principle of California law.
The district court’s unarticulated legal theory that if an
application is in fact complete, a determination that it is
incomplete constitutes a determination that it is complete
is highly ingenious but wholly unmeritorious. Moreover,
even assuming that the application did in fact contain all
the information required by California law and that the
City’s request for further information was erroneous or
made in bad faith, the City’s one year period for approving
a complete application still could not have commenced to
run earlier than November 26, 1978, if at all.
Assuming the answer to every theoretically unclear
state law issue to be favorable to Kollsman’s position, the
one year period for approval or disapproval would have
©The letter indicated that, along with other information, an
environmental impact report (EIR) was missing from the application.
The parties disagree as to whether under California law Kollsman
was required to file an EIR. Given the proper resolution of the case,
see infra pp. 841-843, I find it wholly unnecessary to resolve the
question of whether an EIR was required to be submitted with the
application.
A-24
begun on November 26, 1978 because that was the date
on which, under the California statute, the City was
required to make its determination as to the completeness
of Kollsman’s application.’ The only possible way the
one year period could have commenced to run before
November 26, 1978 would have been not only for the
City’s finding of incompleteness to be deemed a finding of
completeness, but even more critical, for the City to have
somehow obtained notice that such was the paradoxical
effect of its request for further information. While it may
be argued that under some circumstances a City may have
notice than an application will be deemed complete if it
fails to act on a date by which it is required to decide
whether or not the application is complete, I am aware of
7We may assume, for example that under California law Kollsman’s
application would have been deemed complete if the City had failed to
act by November 26, 1978. We can also assume that Kollsman’s
application contained all the information required by applicable
St. ites. We can even assume that under California law a bad faith
response is treated in the same manner as a failure to respond at all
and that in this case the City’s response was made in bad faith. I make
these assumptions arguendo although in my opinion there is no
statutory basis for deeming Kollsman’s application to be complete
under any circumstances. Cal.Gov't. Code §65943 ( Deerings 1984)
was amended in 1979 (and the amendment became effective on
October 2, 1979) to add a new second sentence: “If such written
determination is not made within 30 days after receipt of the
application, the application shall be deemed complete for purposes of
this chapter.” Because his application was filed in January 1977, this
new “deemed complete”’ provision to section 65943 did not apply to
Kollsman’s application. Section 65924 did, instead. But even if the
amendment to section 65943 were applied retroactively and to
applications subject to the separate time limitation of Cal.Gov't Code
§65924 (Deerings 1979), see supra note 5,under the “60 days after
the effective date”’ provision of the latter section the application could
not have been deemed complete until November 26, 1978. Therefore, ’
the City’s disapproval on November 26, 1979, would have fallen
within the one year limitations period of Cal.Gov't Code § §65950,
65956(b) (Deerings 1979). Accordingly, we need not address any of
the “unclear” state law questions.
| A-25
no theory under which the City of Los Angeles could be
said to have afforded notice that its preliminary determi-
nation as to incompleteness and its request for further
information would trigger the running of a one year statute
that commences, according to its terms, only when the
application is “accepted as complete.’
Thus, the district court’s decision must rest on its
second theory—its apparent resolution of a factual issue it
perceived to be raised by the two letters sent by the City to
Kollsman. The November 22, 1978 letter was, as we have
noted, ciear and unambiguous. It found Kollsman’s
application incomplete and requested further information.
Almost one year later, in a form letter to Kollsman dated
November 14, 1979, the City stated that under a recent
Statutory amendment it “is required to act on certain
projects ... within one year of the date of acceptance of an
application as complete”’ and that it planned to disapprove
the application on November 21, 1979. The letter con-
tained no specifics about Kollsman’s application, except
for the date that it was originally filed. It did not state that
Kollman’s application had ever been accepted as com-
plete; nor did it state the date on which any such action
might have occurred, nor the date on which the City was
*Cal.Gov't Cod §65950 (Deerings 1979) states, in relevant part,
that “‘any public agency which is the lead agency for a development
project shall approve or disapprove such project within one year from
the date on which an application requesting approval has been
received and accepted as complete by such agency.” (emphasis
added). Section 65950 was amended in 1983. The amendments
become effective on January |, 1990 and therefore do not bear upon
Kollsman’s application. Even making all the assumptions set forth in
note 7, supra there is no way the City could have known that all the
statutory construction issues, including the obviously insuperable bar
of retroactivity, would be decided in an arbitrary and erroneous
manner and that in addition its sending of its November 22, 1978
letter of incompleteness would be treated by the district court as
constituting a determination of completeness.
EE
a
A-26
required to approve or disapprove his application. In fact,
the letter stated specifically that the application “has been
held pending receipt of requested additional materials.”’
Thus, on its face the November 14, 1979 letter in no way
reverses, or even contradicts, the November 22, 1978
one; in fact, it is in some important respects consistent
with the earlier letter.
The district court read the letter as “‘a stroke of
conscience,” 565 F.Supp. at 1096, and concluded that it
demonstrated that the City had accepted the application
as complete on November 22, 1978. This factual conclu-
sion is wholly contrary to the evidence and to all rules of
logic. It is inconceivable that the November 14, 1979
letter—a form letter that was devised to comply with a
recent amendment to a statute and was in significant
respects consistent with the November 22, 1978 letter—
could serve to reverse completely the plain meaning of the
earlier letter so that an express statement that the
application was incomplete must be read retroactively as
stating that the application was complete. The majority
says that “(t]he district court’s rationale for concluding
that the application must be deemed complete on Novem-
ber 22, 1978, is somewhat opaque.” Majority opinion p.
835 n. 12. I disagree. Rather then merely opaque, the
district court’s factual conclusion is, in my opinion,
bizarre, as well as wholly and clearly erroneous.
There is, in fact, only one possible interpretation of the
November 22, 1978 letter: Kollsman was notified on
November 22, 1978 that the City had determined that his
application was incomplete; the City’s letter meant and
continued to mean precisely what it said and not the
opposite. That meaning could not be changed, retro-
actively or otherwise, by a subsequent letter. Moreover,
there are various possible explanations for the City’s
action in sending the November 14, 1979 form letter. The
A-27
letter could have been sent to Kollsman (1) because the
City was making one final attempt to obtain information it
had been seeking for some time, (2) because the City had
decided to disapprove a// applications in which the parties
failed to supply requested information, despite the fact
that no formal disapproval was required with respect to
applications previously found to be incomplete, (3) out of
bureaucratic confusion over whether the recent amend-
ment to the statute required new disapproval letters in cases of
longstanding incomplete applications, or (4) simply out of
an excess of caution. It is of no significance which
explanation is correct, nor is it significant that the City
could have sent an individualized letter that more clearly
specified its purpose and that was more narrowly tailored
to Kollsman’s situation. What matters for the purposes of
the case before us is that, as I have said, the 1979 letter
could not under any theory serve to reverse, retroactively,
the plain meaning of the 1978 letter. Of equal importance,
even if a district court did have the discretion to give such
effect to the 1979 letter, there is no means by which
retroactive notice to the City could serve to afford it the
one-year statutory period within which to approve or
disapprove a completed application.
After an application is accepted as complete, the City is
required to approve or disapprove it within one year.
Cal.Gov’t Code §65950 (Deerings 1979)? Failure to do
so is deemed to constitute approval.'!° Even assuming that
Kollsman’s application could be deemed complete as a
result of the City’s finding it incomplete, as I have already
explained, the earliest date on which it would have been
‘See supra note 8.
'0Cal.Gov't Code §65956(a) (Deerings 1979) provides that **[i]n
the event that a lead agency or a responsible agency fails to act to
approve or to disapprove a development project within the time limits
required by this article, such failure to act shall be deemed approval of
the development project.”
A-28
deemed complete would have been November 26, 1978.
Thus, at worst, the City had untii November 26, 1979 to
approve or disapprove the application. It acted within that
deadline when it sent a jetter of disapproval on that date.
In sum, despite the majority’s statements to the con-
trary, there are no uncertain state law questions that we
need to resolve. Rather, to reach the proper result, we need
only resolve a factual question with an obvious answer.
Abstention was improper for another reason as well.
There is no “sensitive area of social policy” implicated
here. Although zoning may generally involve sensitive
areas of social policy, this narrow dispute does not.
The specific issues raised here are far from sensitive if
for no other reason than that they will almost certainly
never be raised again. As the district court recognized,
there is “‘little likelihood that the future will bring State
Court decisions on applications which were filed prior to
January 1, 1978 and remain undetermined. In this
respect, the Kollsman case may be unique. At least the
possibility of additions to the species has long been
extinct.” 565 F.Supp. at 1090.
In short, the majority errs in stating that Kollsman’s
claim “raises difficult state law issues of great importance
to the people of California.’’ Majority Opinion slip op. p.
3053, p. 833. We need not decide any difficult or unclear
questions of state law, but only a simple factual issue—the
meaning of an unambiguous letter. Moreover, because
most of the issues the parties discuss in the briefs probably
will never be raised again, it is wrong to say that they are of
great, or even any, importance to the people of California.
In conclusion, because two of the three requirements for
abstention have not been satisfied, the majority errs in
invoking the doctrine.
A-29
THE ADVERSE EFFECTS OF ABSTENTION
The majority’s holding that the district court abused its
discretion in not abstaining will unnecessarily delay
resolution of Kollsman’s claims for many years. Assum-
ing that the plaintiffs have the necessary funds and
stamina to pursue this litigation indefinitely, the state law
issues will at some point be resolved in favor of the City,
on one ground or another, and the federal courts will
ultimately, if belatedly, be required to resolve the consti-
tutional questions. In a decision holding that a district
court properly decided the state law issues before it, the
Supreme Court condemned the delay resulting from
unnecessary application of the abstention doctrine. Mere-
dith v. Winter Haven, 320 U.S. 228, 237, 64 S.Ct. 7, 12,
88, L.Ed. 9(1943); see C. Wright, Law of Federal Courts
§52, at 305 (recognizing that Pullman abstention has
‘‘liJn a number of well-known cases ... led to delays of
many years before the case was finally decided on its
merits or limped to an inconclusive end’’ (footnotes
omitted)).
Here, the district court had jurisdiction over both the
federal and state law claims; absent extraordinary cir-
cumstances, the plaintiff should not be deprived of the
right to have his claims resolved in a federal forum.
Furthermore, the delay that will be caused by unnecessary
and improper abstention in this case is far longer than the
two year delay that the Supreme Court criticized in
Winter Haven.
In January 1977, Kollsman submitted the development
proposal to the City. In March 1977, he filed this
complaint. The district court decided the case in February
1983. We heard the appeal in January 1984. The
majority’s decision will effectively render moot the district
court proceedings and send the state issues to the Cali-
A-30
fornia courts for a new beginning. This will, of course,
delay for many years the final resolution of this dispute.
The suite has already outlived the original plaintiff,
Paul Kollsman. The Kollsman estate will be most fortu-
nate indeed if it is able to resolve even the simple and
unimportant state law aspect of this litigation by 1987—
ten years after the time the original application was filed.
The case will then return to the federal courts for
resolution of the federal issues unless by that time the
plaintiffs have abandoned their rights in despair. In my
opinion, we have a legal duty to exercise our jurisdiction
now.
THE MERITS OF THE STATE LAW ISSUES
In order to discuss the abstention questions fully, it has
been necessary to point out why I believe the district judge
decided the merits of the state-law questions erroneously.
I would, for the reasons I have already discussed, reach
those merits and reverse the district court’s decision.
CONCLUSION
Because there are no unclear questions of state law that
require resolution, because a sensitive social policy is not
implicated, and because the state law issues are in any
event of little or no importance to the people of California,
the majority errs in invoking the abstention doctrine. To
dispose of this case, we need only resolve a simple factual
question with an obvious answer. By attempting to make
abstention the absolute rule in zoning cases rather than the
exception in all cases, the majority does a disservice to the
litigants, who deserve, at a minimum, a reasonably prompt
resolution of the federal issues that are determinative of
this lawsuit. We should allow the already long delayed
dispute to proceed to an orderly resolution. The absten-
tion doctrine and its accompanying delay should be
reserved for cases involving extraordinary circumstances.
A-31
The district court’s decision on the state law questions
should be reversed on the merits and the case remanded so
that Kollsman’s constitutional claims may be resolved. I
believe that the majority errs in vacating the district
court’s decision on the basis of the abstention doctrine. I
therefore dissent.
B-1
FILE )
SEP 05 196.
PHILLIP 8. WINBER:
CLERK US. Subt oF .
United States Court of Appeals
for the Ninth Circuit
CITY OF LOS ANGELES,
a municipal corporation,
Defendants-Appellants.
EVA KOLLSMAN: CITY NATIONAL _ )
BANK: TASHI LAND CORPORATION, ) No.
a New York corporation, ) 83-5798
Plaintiffs-Appellees,
v. )
' ORDER
)
)
)
Before: SNEED and REINHARDT, Circuit Judges,
and SOLOMON’, District Judge.
A majority of the panel as constituted in the above case
has voted to deny the petition for rehearing and to reject
the suggestion for rehearing en banc.
The full court has been advised of the suggestion for en
banc rehearing, and no judge of the court has requested a
vote on the suggestion for rehearing en banc. Fed. R. App.
P. 35(b).
The petition for rehearing is denied, and the suggestion
for a rehearing en banc is rejected.
*Honorable Gus J. Solomon, Senior United States District Judge for
the District of Oregon, sitting by designation.
APPENDIX B
C-l
Paul KOLLSMAN: Tashi Land
Corporation, a New York
corporations, Plaintiffs,
v.
CITY OF LOS ANGELES, a municipal
corporation, Defendant.
No. CV 77-0770-ALS.
United States District Court,
C.D. California
Feb. 1, 1983.
Jerrold A. Fadem, Michael Berger, Richard D. Norton
of Fadem, Berger & Norton, Santa Monica, Cal., for
plaintiffs.
Ira Reiner, City Atty., Gary R. Netzer, Asst. City
Atty., William L. Waterhouse, Deputy City Atty., Los
Angeles, Cal, for defendant.
JURISDICTION
MEMORANDUM DECISION
STEPHENS, District Judge.
JURISDICTION
This court has jurisdiction founded on diversity of
citizenship and amount in controversy pursuant to Title
28, United States Code Section 1332.
Plaintiff is a citizen of the State of New York and
defendant is a municipal corporation incorporated under
the laws of the State of California having its principal
place of business in the State of California. The matter in
controversy exceed, exclusive of interest and costs, the
sum of ten thousand dollars. The court also has jurisdiction
founded upon Title 28, United States Code Section 1331,
the existence of a federal question.
APPENDIX C
C-2
SCOPE OF THIS OPINION
This opinion is limited in its scope to Count VII, added
with the permission of the court to conform to proof,
without deciding the constitutional questions raised in
other counts, a procedure which honors the principle that
preferably controversies should be decided upon other
than constitutional grounds. The courts has retained juris-
diction of the other counts.
The facts are largely undisputed. However, in some
instances there are conflicts in the evidence which must be
resolved. The facts as stated in this opinion represent a
resolution of conflicting evidence as well as a recitation of
the undisputed facts. Where there is a conflict in the
evidence, the statement of the court in this opinion is
intended as a finding of fact. To contribute to clarity, the
opinion combines fact and law. The court intends that its
statements of law be taken as the court’s conclusions of
law. See Fed.R.Civ.Pro 52(a)
PROCEDURAL HISTORY
On March |, 1977, plaintiffs filed a six count complaint
for inverse condemnation and a declaration that certain
actions by the City were invalid. Counts I, II, and III
raised claims under the Taking and Equal Protection
Clauses of the United States Constitution. Counts IV, V,
and VI raised claims under various provisions of California
State zoning and environmental control laws.
On March 31, 1977, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, defendants moved to
dismiss Counts II, III, [V, V and VI. The motion was
granted only as to Count V. Thereafter, on May 16, 1977,
the City filed its answer to plaintiffs’ complaint.
On September 8, 1977, the City filed a second motion
to dismiss for lack of diversity of citizenship jurisdiction
C-3
and on the grounds that this court should abstain from
exercising federal question jurisdiction. On November 22,
1977, the City’s motion to dismiss was denied.
On February 10, 1978, the City filed a motion for
summary judgment, pursuant to Rule 56, Federal Rules of
Civil Procedure, seeking a summary judgment as to
plaintiffs’ five remaining causes of action. Summary
judgment was granted as to Count IV and Count VI, and
denied as to Counts I, II, and III.
On March 15, 1978, the City filed a petition for writ of
mandamus in the United States Court of Appeals for the
Ninth Circuit. The City argued before the Court of
Appeals that plaintiffs’ complaint was not ripe for adjud-
ication and that the district court exceeded its jurisdiction
and abused its discretion by declining to abstain from
exercising jurisdiction over this case. On June 7, 1978, the
Court of Appeals denied the petition for writ of mandamus
stating in an order as follows:
“We cannot concur, at this stage of the
proceedings, that the complaint of the real
parties in interest fails to present a justiciable
controversy. Nor can we now find that the
district court has abused its discretion in declining
to abstain as the unsettled issues appear to
include substantial federal constitutional ques-
tions.”
On August 10, 1978, the Court of Appeals denied the
City’s petition for rehearing and suggestion for rehearing
en banc.
On July 27, 1978, the City filed a motion to strike
plaintiffs’ demand for a jury trial and said motion was
granted. The first phase of the trial was a six day court trial
ending April 5, 1979. On November 26, 1979, plaintiffs’
development application was disapproved by the City for
C-4
lack of completeness. Subsequently, the court viewed
subject property and two more days of trial were conducted,
ending April 22, 1981.
On February 17, 1982, at the suggestion of the court,
Kollsman filed a motion for leave to amend his complaint
to conform to the evidence pursuant to Rule 15(b) of the
Federal Rules of Civil Procedure. In a minute order dated
February 22, 1982, the court granted the motion. Kolls-
man’s amendment adds two causes of action. Count VIII
was a Civil rights claim under 42 U.S.C. § 1983 against
the City. Kollsman argued that as a result of the United
States Supreme Court’s ruling in Monell v. Dept. of Social
Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978), he was entitled to raise a claim under 42 U.S.C.
Section 1983 against the City.' This count has not been
litigated. Count VII was added to conform to proof. This
cause of action involved the application of Cal. Government
Code Sections 65920 et seg. (Review and Approval of
Development Projects), which became effective while this
case was pending. Since as expressed in this opinion,
Kollsman is entitled to relief under the provisions of Cal.
Government code Sections 65920 et seq., it is unnecessary
to address his claims under the United States Constitution
and 42 U.S.C. Section 1983 at this time.
THE CITY’S SUBDIVISION PROCESS
A discussion of the facts requires reference to the City’s
subdivision approval procedure.? A prospective subdivider
initiates the process for subdivision approval by submitting
to the City Planning Department a “Tentative Tract
‘Monell held, contrary to existing law at the time, that municipal
corporations are “persons” within the meaning of 42 U.S.C. § 1983,
and thus subject to liability for civil rights violations.
?This narrative summarizes the provisions of the Los Angeles
Municipal Code, Sections 17.00 through 17.49.
C-5
Map” which must describe the proposed development
project. This Tentative Map is circulated among a number
of City departments for comment. The departments
respond through written reports which are submitted to the
Planning Department to be consolidated and considered
by a Deputy Advisory Agency, a member of the Planning
Department staff with the statutory power to approve,
conditionally approve, or disapprove the proposed subdi-
vision. Prior to making its decision on the Tentative Map,
the Deputy Advisory Agency notifies all property owners
within 300 feet of the property proposed to be subdivided
of a public hearing to consider the proposal.
Along with the reports from various City departments,
the Deputy Advisory Agency also has the benefit of
information developed through the City’s environmental
review process. This procedure is mandated by the
California Environmental Quality Act of 1970 (hereafter
“CEQA” Pub. Resources Code Section 21000 et seq.)
and the State and City Guidelines promulgated under its
authority. CEQA requires that the City undertake a
preliminary analysis of all projects which may have an
impact on the environment. In Los Angeles, this initial
screening is accomplished by a Planning Department
Environmental Review Committee. If the screening iden-
tifies any “‘significant’’ effects on the environment which
may arise from the project, then the Planning Department
may require the developer to submit material for preparation
of a draft Environmental Impact Report (EIR). This draft
EIR, once complete, is then used by the Planning
Department to develop a full-scale analysis of all potential
environmental impacts. This analysis is circulated to
interested government agencies, the State Clearinghouse
in Sacramento, and the public for its review and comment.
Once all comments are received, the analysis emerges in
the Final EIR. This final EIR must be certified as
re
C-6
complete and then used by the Deputy Advisory Agency
is making his final decision. Pub. Resources Code §
21151.
If the information submitted by the developer for
preparation of a draft EIR is inadequate, subsequent
submissions are required until enough information is
provided for the City to describe the project, its impacts,
and alternatives in sufficient detail to solicit public
comments.
If the Deputy Advisory Agency disapproves the proposed
subdivision, the developer may appeal to the City Planning
Commission and, if necessary thereafter, to the City
Council L.A.M.C. § 17.06. If the Deputy Advisory
Agency approves the subdivision, any “interested person
adversely affected by the proposed subdivision” may
appeal to the Commission and then to the Council. Jd.
Ordinarily, approved subdivisions are subject to a number
of conditions which must be satisfied before construction
begins, such as dedication of property for streets, installation
of necessary utilities, etc. Once the conditions for approval
have been satisfied, the subdivider may submit to the City
his Final Tract Map. L.A.M.C. § 17.07. When this Final
Map is accepted and recorded, the subdivider may
commence construction and sell lots.
Elements of the City’s General Plan — like the Beverly
Crest-Bel Air District Plan — play an important role in
the subdivision process. Under state law, a subdivision
cannot be approved unless the Advisory Agency makes a
finding that the development is “consistent with applicable
general or speci%c plans.” Cal.Gov.Code § 66474.60.
This Advisory Agency finding is based on all available
information, including the final EIR and reports from City
Departments, and cannot be made until that information
base is complete.
C-7
FACTS
In 1946 Kollsman purchased a Mediterranean-style
home in the Santa Monica mountains above Beverly
Hills. The home was situated on 12 acres of land.
Thereafter, Kollsman began acquiring other undeveloped
property surrrounding his home intending to subdivide it
as he neared his retirement. The most recent acquisiton
was made in 1964, when Kollsman purchased a house and
two neighboring lots on Benedict Canyon Drive.
In 1946 the zoning for subject property was R-1, witha
minimum lot size of 5,000 square feet. In 1960 R-1-4
zoning was established which changed the minimum lot
size to 15,000 square feet. In 1971 an amendment to the
zoning plan was passed which allowed a maximum
density on subject property of 60% of the maximum
dwelling unit density shown on the existing plan.
On January 12, 1977, as a result of Kollsman’s efforts
and those of his engineers and geologists, Kollsman
submitted to the City’s Planning Department an Environ-
mental Assessment Form and Tentative Tract Map
33300, which showed his proposed residential subdivision.
One day later, on January 13, 1977, the City Council
adopted the Beverly Crest-Bel Air District Plan. The
District Plan limits development of private property in two
ways. First, the property is given a minimum density
designation which means the maximum density permitted
is 0.5 to 1 dwelling per acre. Second, dwelling unit density
is limited by the slope-density formula. According to the
formula, the allowable density for residential development
is as fol’ows:
D=50-S: D= maximum number of dwelling units per
gross acre allowable.
35 S= average slope of the land in percent.
C-8
Pursuant to this formula, the City claims plaintiffs
would be permitted to divide the 85 acres of subject
property into a maximurn of nine (9) building lots instead
of the seventy (70) he originally proposed and the
maximum eight-five (85) lots permitted under the District
Plan without the slope-density formula.
In a document dated February 2, 1977, the City’s
Planning Department informed Kollsman that a focused
environmental impact report should be prepared by
Kollsman, including a discussion of “slope analysis” and
an alternative residential design towards preserving existing
topography.’ The City’s Environmental Review Committee
adopted the City Planning Department’s recommendation
on February 9, 1977.
On February 16, 1977, the Environmental Review
Committee transmitted to Kollsman an “Environmental
Evaluation Form” which specified the areas which Kolls-
man was required to address in his EIR.‘
On July 28, 1977, Kollsman submitted a first draft
EIR. The first draft discussed project alternatives including
the statutorily mandated “no project” alternative, Cal.Pub.
3At this time, the City could lawfully require Kollsman to provide
them with a focused EIR. Cal.Gov.Code § 65941, which became
effective September 26, 1978, prohibits the City from requiring the
applicant to submit the “informational equivalent of an environmental
impact report as part of a complete application.”
4The Evaluation Form states in pertinent part that “(t]he ERC
[Environmental Review Committee] initial study indicates that
impacts could occur from this project's implementation due to the
following considerations: 1)Major Land Forms; 2) Hydrology:
3) Illumination; 4) Traffic; 5) Access; 6) Sanitary Sewers; 7) Solid
Waste; 8) Water Runoff; 9) Public Facilities (police, fire parks,
library.) An EIR should be prepared addressing all these impacts as
well as project alternatives; appropriate mitigation measures; and
energy conservation.”
.
it nied al lates
C-9
Resources Code, § § 21002, 21100, but did not address
the impact of the slope-density formula on the Kollsman
property, or a project alternative known as “cluster”
housing.» On September 13, 1977, Kollsman submitted
ten copies of a second draft EIR which was 58 pages long.
The City circulated this draft to the various homeowners’
associations.
On November 20, 1977, the Environmental Review
Committee marked the Kollsman draft EIR as a “data
base’, and specified that “support data’”’ on slope density
and cluster alternatives was needed, as well as additional
engineering information.® The requested engineering infor-
mation was supplied by Kollsman’s engineer on March 3,
1978. Slope density and cluster alternatives were not
discussed in this report.
In a letter dated May 11, 1978, the Environmental
Review Committee informed Kollsman that it would
suspend processing of Kollsman’s development application,
since Kollsman, on the advice of legal counsel, did not
specifically and independently discuss slope density and
cluster project alternatives.’
On September 26, 1978 amendments to Cal.Gov.Code
§65924 and 65925 became effective. Section 65941
prohibits the City from requiring of a development
applicant ‘“‘the informational equivalent’ of an EIR.
5Implemenation of the cluster alternative would have violated the
local residential zoning classification which requires each lot to be an
average minimum of 15,000 square feet.
6Shortly after the City made this request, Cal. Gov.Code § 65920
et seqg., which deals with Review and Approval of Development
Projects, became effective on January 1, 1978.
7On May 12, 1978 in a letter to the City, Kollsman’s engineer
stated: “I sincerely regret that you are unable to complete a suitable
draft EIR, but I cannot accept the inference that it is the lack of input
from this office that is the cause of said inability.”
C-10
Section 65924 requires that with respect to applications
received prior to January 1, 1978, but not yet determined
to be complete, the City must make such determination
not later than 60 days after the effective date of amend-
ment. This would have required the City to consider all of
the information available to it, evaluate the information,
and make a good faith determination of completeness or
incompleteness of the Kollsman application no later than
November 25, 1978.
[1] On November 22, 1978 the Planning Department
notified Kollsman that his development application was
incomplete. The reasons stated by the City were that (1)
the Bureau of Engineering required additional informa-
tion,® and (2) Environmental Assessment Data or an
EIR was needed. It is important to note that at this time the
City had the responsibility for preparing the EIR, Cal.
Pub. Resources Code §21082.1, and could not lawfully,
under Cal.Gov.Code § 65924, require the informational
equivalent of an EIR. The evidence establishes that by
November 22, 1978, Kollsman had provided the City
with sufficient environmental and engineering information
to enable the City to prepare a legally adequate EIR.
When this notification was sent to Kolisman, the City
knew that it was insufficient for failure to indicate the
manner in which the information could be made complete.
The City knew by May 12, 1978 that Kollsman thought
that ali engineering information and environmental assess-
ment data required by the City had already been furnished.
In these circumstances, good faith as well as the specific
provisions of Government Code § 65943 required identi-
fication of any type of engineering information or environ-
8The City does not specify in this notification what engineering
information is needed, although Gov.Code § 65943 provides: ‘“‘and
shall indicate the manner in which [the application] can be made
complete.”
ae ee Se Se ae,
722 Eo OvvOo3o3737eeoeoorrroooeeOoeEOE EE
C-11
mental data still needed by the City to enable it to prepare
an EIR. The City also knew that Kollsman had not
previously hestitated to promptly comply with all of the
City’s requests for information.
In a document dated January 12, 1979, the City
informed Kollsman that it could not schedule a public
hearing regarding approval of his tract pplication until
“specified items have been completed.’’ The document
indicates that environmental clearance was required, and
that the Planning Department was waiting for completion
of a “full EIR.”
A reasonable construction of this document would
indicate that the Planning Department could not schedule
a public hearing because it did not have clearance from the
Environmental Review Committee. Environmental clear-
ance may not be given by the Environmental Review
Committee without completion of a full EIR. Since it is the
City’s responsibility to prepare the fuil EIR, it is mani-
festly unjust that Kollsman should be penalized on the
basis of submitting an “‘incomplete” application, when the
material which would have made the application com-
plete, viz., a full EIR, was being withheld by the City itself.
All circumstances which the evidence disclosed being
considered, the lack of specificity in the City’s notices to
Kollsrman is quite apparently deliberately vague.
On November 14, 1979, the City gave Kollsman notice
of intent to disapprove his aplication without prejudice.
The notice states in part: “It is the intent of the Advisory
Agency to administratively disapprove all pending cases
approaching the one year deadline whenever a determina-
tion of approval cannot be made due to lack of submission
of sufficient information.”’
It is unclear why the City would feel compelled to
approve or disapprove Kolisman’s application before the
C-12
one year deadline imposed by Cal.Gov.Code § § 65950
and 65956. These sections apply only to complete
applications. If Kollsman’s application was as the City
argues, incomplete for lack of sufficient information, there
was no need for the City to meet the deadline imposed by
§ 65950. The City was free, under § 65956, to disapprove
the application for lack of completeness at any time, if it
felt that Kollsman was not, with reasonable diligence,
supplying information sufficient for completeness. See
Sahm, Project Approval Under the California Environ-
mental Quality Act: It Always Takes Longer Than You
Think, 19 Santa Clara L.Rev. 579 (1979); Cal.Gov.Code
§ 65956(b).
Shortly thereafter, on November 26, 1979, the City
gave Kollsman notice that his development application
was disapproved because he “failed to provide the
requested information.”” Kollsman did not appeal this
decision to the City Planning Commission.°
DISCUSSION AND DECISION
A. Kollsman Properly Amended His Complaint to
Conform to the Evidence Pursuant to Rule 15(b).
Rule 15(b) of the Federal Rules of Civil Procedures
provides:
(b) Amendments to Conform to the Evidence.
When issues not raised by the pleadings are tried
°A “Stipulation and Order” signed by Kollsman and the City on
December 11, 1979 states that “[i]t is hereby stipulated between
Plaintiffs and Defendant, by and through their respective attorneys of
record, that the running of the time for the filing of an appeal to the
City Planning Commission from the action of the Advisory Agency in
the matter of Tentative Tract No. 33300 be tolled from November 26,
1979 to and including the date upon which judgment in this matter
becomes final. It is further stipulated that the aforesaid stipulation
shall not affect the ability of either party to raise issues of fact and law
in any phase of the instant action.”
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by express or implied consent of the parties, they
shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues
may be made upon motion of any party at any
time, even after judgment; but failure so to
amend does not affect the result of the trial of
these issues. If evidence is objected to at the trial
on the ground that it is not within the issues made
by the pleadings, the court may allow the
pleadings to be amended and shall do so freely
when the presentation of the merits of action
will be subserved thereby and the objecting party
fails to satisfy the court that the admission of
such evidence would prejudice him in maintai-
ning his action or defense upon the merits. The
court may grant a continuance to enable the
objecting party to meet such evidence.
[2] Rule 15(b) was designed to provide the maximum
opportunity for each claim to be decided on its merits
rather than on procedural technicalities. 6 Wright &
Miller, Federal Practice & Procedure, § 1471, p. 359
(1971); Hardin v. Manitowoc-Forsythe Corp., 691
F.2d 449 (10th Cir. 1982). ‘‘It is well-settled that the
amendment of pleadings to conform to proof under Rule
15(b) of the Federal Rules of Civil Procedure rests in the
sound discretion of the trial court.’ Cole v. Layrite
Products Co., 439 F.2d 958 (9th Cir. 1971) (citations
omitted), quoted with approval in Gonzales v. United
Staes, 589 F.2d 465 (9th Cir.1979); Save Lake Washing-
ton v. Frank, 641 F.2d 1330 (9th Cir.1981). Leave to
amend is to be freely given ‘“‘when justice so requires,”
Fed.R.Civ.Pro. Rule 15(a); Stiles v. Gove, 345 F.2d 991
(9th Cir.1975), and refusal to grant leave to amend
C-14
without any justifying reason is an abuse of the trial court's
discretion. Foman v. Davis 371 U.S. 178, 182, 83 S.Ct.
227, 230, 9 L.Ed.2d 222 (1962).
[3] Rule 15(b) permits amendment of the complaint to
conform to the evidence at any time during the proceedings,
even after judgment, when the unpled issues have been
tried by express or implied consent of the parties. As
stated recently by the Tenth Circuit, “[t]he test of consent
is whether the opposing party had a fair opportunity to
defend and whether he could have presented additional
evidence had he known sooner the substance of the
amendment” Hardin v. Manitowoc-Forsyth Corp. supra
at 456. Consent will generally be found where the party
objecting to the motion to conform acquiesced in the
introduction of evidence bearing on the new issue, or
himself produced evidence on the new issue. Hardin v.
Manitowoc-Forsythe Corp., supra at 457; Dering v.
Williams, 378 F.2d 417 (9th Cir. 1967).
[4] The record makes it clear that the City made no
objection to the admission of evidence which made
apparent that the objective of the litigation might be
attainable without adjudicating the constitutional issues.
The evidence was largley documentary in nature at the
time it was introduced. In fact, the City itself introduced
through documents and testimony much of the evidence
which formed the basis of the claim under Cal.Gov.Code
§ 65920 et seg. Under these circumstances, the Court
finds that the City gave implied consent to the trial of the
issues raised by the amendment to conform to the
evidence.
[5,6] The City argues that the lapse of time between the
trial and Kollsman’s motion to conform unduly prejudiced
the City because it prevented it from having a fair
opportunity to conduct discovery, present appropriate
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pre-trial motions, and present full evidence on the issues
raised by the amendment. This argument was rejected for
two reasons. First, delay alone cannot defeat a Rule 15
motion to amend. See Bertrand v. Sava, 535 F.Supp.
1020(S.D.N.Y. 1982). Second, the City had the opportu-
nity, if it so chose, to request additional evidentiary
hearing at the time Kollsman’s motion for leave to amend
was granted pursuant to Rule 15(b). The City made no
such request.
[7] An additional reason for allowing amendment of
Kollsman’s complaint lies in the time-honored principle
that, whenever possible, controversies should be decided
on non-constitutional grounds, Ashwander v. Valley
Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688
(1936). The Court concludes that a Rule 15(b) amend-
ment to conform to the evidence was proper.
B. Exhaustion of Administrative Remedies
While not a matter of jurisdiction of the subject matter,
there are situations which require exhaustion of administ-
rative remedies as a prerequisite to the availability of
judicial relief. The facts which support relief under Count
VII require a discussion of this subject.
As initially noted, Plaintiff, Kollsman, is a citizen of the
State of New York, and the Defendant, the City of Los
Angeles, is a California municipal corporation. Diversity
jurisdiction is accordingly conferred pursuant to 28 U.S.C.
§ 1331. The record indicates, however, that under the Los
Angeles Municpal Code, Kollsman was entitled to appeal
the City’s disapproval of his tract application to the City
Planning Commission, but elected not to do so. Instead,
both parties, pursuant to a stipulation dated December 11,
1979, agreed to suspend the running of the time for the
filing of an administrative appeal, pending the outcome of
this case. The stipulation states in pertinent part that “the
C-16
aforesaid stipulation shall not affect the ability of either
party to raise issues of fact and law in any phase of the
instant action.”
[8-10] It is axiomatic that the subject matter jurisdiction
of the federal court may not be conferred by consent of the
parties. California v. La Rue, 409 U.S. 109, 111, n. 3,93
S.Ct. 390, 394, n. 3, 34 L.Ed.2d 342 (1972). Exhaustion
of administrative remedies, however, is not a federal
jurisdictional requirement, but a “prudential consideration.”
Steere Tank Lines, Inc. v. ICC 675 F.2d 763, n. 5 (Sth
Cir.1982). When not mandated by federal statute, the
requirement that a plaintiff exhaust available administrative
remedies prior to filing a claim for relief in federal court
may be waived by the defendant. Holloway v. Gunnell,
685 F.2d 150, 152, n. 2 (Sth Cir.1982). In the instant
case, the City waived the exhaustion requirement by
signing the stipulation of December 11, 1979.
There have been few cases which interpret the California
code sections which are involved in this case and little
likelihood that the future will bring State Court decisions
on applications which were filed prior to January 1, 1978
and remain undetermined. In this respect, the Kollsman
case may be unique. At least the possibility of additions to
the species has long been extinct. So where statutes may
require interpretations, it is necessary for this court to
proceed.
C. Completeness of the Kollsman Application.
California Government Code Sections 65920 et seq.,'°
which became effective in 1978 while this case was
pending, were intended by the California Legislature to
“streamline the permit process for development projects.”
Sahm, Project Approval, supra at 588. Cal.Gov.Code
Section 65921 provides:
Sometimes referred to as Development Act.
The Legislature finds and declares that there
is a statewide need to ensure a clear understanding
of the specific requirements which must be met
in connection with the approval of development
projects and to expedite decisions on such
projects. Consequently, the provisions of this
chapter shall be applicable to all public agencies,
including charter cities. :
When read in conjunction with the provisions of the
California Environmental Quality Act, Cal. Pub. Resources
§ 21000 ef seq., the Development Act represents a
comprehensive statutory scheme for the regulation of
development application processing by local agencies.’!
Included in the prescribed development application
procedures is an environmental review process which
analyzes the impact of the proposed development on the
environment.'? To further streamline the permit process
for development projects, the Legislature found it necessary
to expedite decisions on such projects by establishing
deadlines for phases of the permit process. For failure to
meet the deadlines, the Legislature provided that the
applications would be deemed complete or the project
approved.
Section 65924 of the Government Code states in
pertinent part that “[wJith respect to such application
received prior to January 1, 1978, but not determined to
Section 65930 defines “local agency” as “any public agency
other than a state agency.”
Section 65932 defines “public agency” as any state agency, any
county, city and county, city, regional agency, public district,
redevelopment agency, or other political subdivision.” Under the
definition of these terms, the City is clearly a “local agency” within
the meaning of the Development Act.
'2See note 2 and accompanying text.
C-18
be complete as of that date, determination that the
application is complete or incomplete shall be made no
later than 60 days after the effective date of the act
amending this section in 1978.” Since the Kollsman tract
application, which was submitted on January 12, 1977,
had not been determined to be complete or incomplete as
of January 1, 1978, the City was required, under Section
65924, to make that determination not later than 60 days
after September 26, 1978, the effective date of the statute.
[11] In a document dated November 22, 1978, Kollsman
was informed by the City that his development application
had been determined to be incomplete. While this document
was transmitted within the 60 day time constraint of
Section 65924, it was not a document which conformed to
statute and was therefore not legally sufficient to constitute
the determination required by law. It was not based on a
determinination which the Development Act seeks to
effectuate. This subject is further discussed below.
Section 65940 of the Government Code requires the
State of California to compile and make available one or
more lists which specify in detail the information required
from any development project applicant.'? Section 65941
requires that the information to be compiled pursuant to
Section 65940 include the criteria which the City applies
in order to determine the completeness of any application. '4
'3Section 65940 provides: “Not later tharm#June 30, 1978, each
State agency shall compile one or more lists which shall specify in
detail the information which will be required from any applicant for a
development project. Copies of such information shall be made
available to all applicants for development projects and to any person
who requests such information.”
Section 65941 provides: “[t]he information compiled pursuant to
Section 65940 shall also indicate the criteria which such agency will
apply in order to determine the completeness of any application
submitted to it for a development project.
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As of November 22, 1978, or at the very latest, January
12, 1979,'5 the only information missing from the Kollsman
tract application according to the list proposed by the
City, was a “full EIR”, which the City maintained should
include discussion of slope density and cluster project
alternatives.
As noted above, it was the duty of the City to prepare
the “full EIR.”” Under Section 65941, the City may not
lawfully require Kollsman to submit “the informational
equivalent of an environmental impact report” as part of a
complete development application,'® although it may
require “sufficient information to permit the agency to
make the determination required by Section 21081.1 of
the Public Resources Code.”’!’
Assuming arguendo that Kollsman did not submit the
informational equivalent of an EIR, Cal.Gov.Code Section
65941 prohibits the City from declaring the Kollsman
application incomplete on that basis. It is clear from a
\SThe document dated January 12, 1979 indicates that only
environmental clearance was requred before the City could schedule
a public hearing regarding approval of the Kollsman tract application. ©
'6The amendment to Section 65941, effective September 26,
1978, provides that “[i]n the event that a public agency is a lead
agency for purposes of Division 13 (commencing with Section
21000) of the Public Resources Code, such criteria shall not require
the applicant to submit the informational equivalent of an environ-
mental impact report as part of a complete application; provided,
however, that such criteria may require sufficient information to
permit the agency to make the determination required by Section
21080.1 of the Public Resources Code.”
17Cal.Pub.Resources Code § 21080.1 provides in pertinent part
that “(t]he lead agency shall have the responsibility for determining
whether an environmental impact report or a negative declaration
shall be required for any project subject to the provisions of this
division.” A negative declaration is a declaraton that there is no
environmental impact and that an EIR is not required. See Cal. Pub.
Resources Code §21064.
C-20
preponderance of the evidence, however, that not only did
Kollsman submit information sufficient to enable the City
to determine whether an EIR or negative declaration
should be made, but he also submitted information
sufficient to enable the City to draft a legally adequate
EIR.
A certified copy of the City’s guidelines for the
implementation of the California Environmental Quality
Act of 1970 provides in Article VI, §i(7):
7. The Final EIR
a. Contents of the Final EIR.
The final EIR shall be prepared by the Lead City
Agency and shall consist of the following:
(1) The Draft EIR;
(2) A list of persons, organizations, and public
agencies commenting on the Draft EIR;
(3) The comments and suggestions received
on the Draft EIR, verbatim or in summary;
(4) The responses of the Lead City Agency to
significant environmental points raised in the
review and consultation process;
(5) A brief summary of the significant informa-
tion contained in the EIR; and
(6) A certification prepared by the Lead City
Agency pursuant to subsection 2 of this section.
Although he was not legally required to, Kollsman
submitted to the City the informational equivalent of an
EIR. As can be observed from the City’s own guidelines
stated above, the only steps remaining for completion of a
final EIR were to be taken by the City.
Section 21002 of the Pub.Resources Code,'® and the
'8-Cal.Pub.Resources Code § 21002 provides in pertinent part
that’[t]he Legislature finds and declares that it is the policy of the
C-21
cases interpreting CEQA, make it clear that a legally
adequate EIR need not discuss a// alternatives, but merely
reasonable, or feasible'? alternatives. In Foundation for
San Francisco’s Architectural Heritage v. City and
County of San Francisco, 106 Cal.App.3d 893, 165
Cal.Rptr. 401 (1980), the court held that:
[a]n EIR must describe all reasonable alternatives
to the project (Pub.Resources Code §21061),
including those capable of reducing or eliminating
environmental effects; the specific alternatives
of “‘no project” must also be evaluated (Pub. Re-
sources Code, § § 21002, 21100; Guidelines,
Cal.Admin.Code, tit. 14, § 15143, subd.(d)).
The discussion of alternatives need not be
exhaustive and the requirement as to the discus-
sion of alternatives is subject to a construction of
reasonableness. The statute does not demand
what is not realistically possible, given the
limitation of time, energy and funds. ‘Crystal
ball’ inquiry is not required.
The statutory requirements for consideration
of alternatives must be judged against a rule of
reason. There is no need for the EIR to consider
an alternative whose effect cannot be reasonably
state that public agencies should not approve projects as proposed if
there are feasible alternatives or feasible mitigation measures available
which would substantially lessen the significant environmenal effects
of such projects, and that the procedures required by this division are
intended to assist public agencies in substantially identifying both the
significant effects of proposed projects and the feasible alternatives or
feasible mitigation measure which will avoid or substantially lessen
such significant effects.”
19Cal. Pub. Resources Code § 21061.1 defines the term “feasible”
as “capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic, environmental,
social and technological factors.”
C-22
ascertained and whose implementation is deemed
remote and speculative.
106 Cal.App.3d at 910, 165 Cal.Rptr. at 410 (citations
ommited).
In the instant case, Kollsman and his engineers made
outstanding efforts to supply the City with information
sufficient to allow the City to produce a legally adequate
EIR. Kollsman submitted a first draft EIR on July 18,
1977. This EIR draft discussed the statutorily mandated
“no project” alternative and two alternative projects.”° On
September 15, 1977, Kollsman submitted a second draft
EIR which the City circulated among members of local
homeowners’ associations. At the City’s request, Kollsman
submitted further information on March 3, 1978, which
included radius and topographical maps, blue prints, a
summary of the existing flora on the site, and grading
information.
The City’s response to the efforts of Kollsman and his
engineers in obtaining and submitting this environmental
and engineering information has been and continues to be
that the information provided is inadequate to enable the
City to complete a draft EIR. Specifically, a letter to
Kolisman’s engineer from the Environmental Review
Committee, dated May 11, 1978 states:
A discussion of the impact of the slope density
formula and an analysis of alternatives to the
proposed project (Item 5), both critical to the
completion of the EIR are still outstanding.
x*e eeeneeueenett#kt#=eik*i* *# i
20The alternative projects discussed were a 42-43-/ot subdivision
and an 85-/ot subdivision. Kollsman’s engineers concluded that “‘[t]o
develop the property at RE 15-1-H, its current zoning, would permit
the construction of up to 247 dwelling units, and would adversely
impact the character of the surrounding community.”
C-23
Until this information is provided by your office,
I am unable to complete a Draft EIR suitable for
public circulation.
At the very least, this statement is incredible. By
September 13, 1977, the City had already circulated
Kollsman’s second draft EIR to the local homeowners’
associations. Moreover, the standards for a legally adequate
EIR, as articulated in Architectural Heritage, supra do
not require the City to discuss the impact of the slope-
density formula on the Kollsman property, for three
reasons. First, CEQA does not require the discussion of
project alternatives to be exhaustive. Second, only those
alternatives whose effects are reasonably ascertainable,
and whose implementation is not remote and speculative,
need be discussed. The testimony presented at trial
indicates that implementation of the slope-density formula
to the Kollsman property, or any property for that matter,
would have had effects not reasonably ascertainable,
since even the City’s Planning Officers could not consis-
tently apply the formula. The number of lots allowed by
the formula is entirely dependent upon the method of
calculation employed,”! which may be artbitrarily selected
at the discretion of City Planning Officials.2? Since
CEQA would not have required such an arcane discussion
in a draft EIR, the City may not require Kollsman to
provide such a discussion as part of a complete application.”*
21For example, depending on the method of calculation used,
Kollsman would be permitted to divide his 85 acres into either a
maximum of 9 building lots, or a maximum of 4 building lots.
22Whether the slope-density formula is so vague and arbitrary as to
constitute a violation of some provision of the United States
Constitution is a question that need not be decided today.
23Furthermore, it is unclear why the City should require the
developer to discuss the implementation of the formula to developer's
property, when the City has all the necessary information to make the
C-24
Third, CEQA requires only discussion of ‘‘feasible’’
alternatives. As defined in CEQA, “‘feasible’’ means
“capable of being accomplished in a successful manner
within a reasonable period of time, taking into account
economic, environmental, social, and technological factors.”’
Cal.Pub. Resources Code § 21061.1. Development of
the Kollsman property according to the slope desnity
formula would not have been economically feasible. This
was obvious to the City from Kollsman’s discussion of
reducing the number of units as an alternative. Accordingly,
no independent or further discussion of it was required.
[12] An overwhelming preponderance of the evidence
establishes that by November 22, 1978, Kollsman provi-
ded the City with sufficient environmental, engineering,
and geological information to enable the City to prepare a
legally adequate EIR. Since Kollsman had provided the
information necessary from completion of an EIR by the
City, the City could not in good faith refuses to accept the
assessment itsclf. The City enacted an ordinance which limits
development of property by a novel and abstruse mathematical
formula. Since the City is responsible for creation of the formula, it
should know best how it is to be interpreted and applied. The City
could have discussed it in the EIR if it chose to do so.
The City argues that without a discussion of the application of the
slope density formula to the subject property, which the City insists
Kollsman was required to submit, it could not complete a legally
adequate EIR and proceed with the processing of Kollsman’s
application. This argument is patently frivolous and was contradicted
by the City’s own witness, Mr. Gary Morris, a Deputy Advisory
Agency in the City’s Planning Department. In a hearing conducted on
April 22, 1981, the following colloquy took place between the court
and Mr. Morris:
THE COURT: I think that the testimony in this case has indicated
that they apply slope-density formula, and that limits the number of
units that can be built on the site. That doesn’t have anything to do
with the environmental impact or anything, and it is an immutable figure
which can’t be exceeded. Do vou subscribe to that?
THE WITNESS: Yes, I do.
C-25
Kollsman application as complete on the grounds that it
could not prepare an adequate EIR. The action of the City
in refusing to certify the Kollsman application as complete
was contrary to the policies expressed in the Development
Act and CEQA, is ineffective and, as will further shown,
should be disregarded.
It has been pointed out that the Legislature intended to
provide a comprehensive plan for the expedition of
processing applications for development. It is certain that
this intention was that in the means of expedition of
processing, all applications should be treated alike. In this
respect the Legislature inadvertently overlooked reference
to applications initiated prior to January 1, 1978. That
this was inadvertent is evidenced by the fact that there is
no substantive reason for differentiation. In this context it
is important to remember that the Kollsman application
was initiated on January 12, 1977 by submitting a
Tentative Tract Map to the City Planning Department
and that it was in the same year, 1977, that in Cal.Gov.Code
§ 65921 the Legislature found and declared that a need
existed for specific requirement for the approval of
development projects and to expedite decisions on such
projects. The resulting comprehensive remedial legislation
is a reflection of long existing abuses of administrative
processes. Applications which have been long pending
represent the greatest need for expedition. It is beyond
speculation that the legislation enacted in 1977, 1978,
and 1979 to expedite development applications was and is
intended to apply to all applications, those initiated before
January 1, 1978.
As already mentioned, the statutes which comprise
Chapter 4.5 of the Cal.Gov.Code were enacted in 1977.
Those provisions regarding land development applications
filed prior to January 1, 1978 and not determined to be
complete did not identify for official action could be
C-26
measured. In 1978, the legislature adopted an amendment
to Section 65924, a part of Article 1, to rectify this
omission. The amendment provided: “with respect to such
application received prior to January 1, 1978, but not
determined to be complete as of that date, a determination
that the application is complete or incomplete should be
made not later than 60 days after the effective date of the
act amending this section in 1978.”’ The effective date of
this amendment was September 26, 1978. The Kollsman
application fell into the category described in the amend-
ment. This amendment of the 1977 legislation is a
reaffirmation of the legislative intent referred to above.
Section 65943, a part of Article 3 entitled “Applica-
tions for Development Projects: completeness of applica-
tion; determination; time; specification of parts not com-
plete and manner of completion,” reads as follows:
Not later than 30 calendar days after any
public agency has received an application for a
development project, such agency shall deter-
mine in writing whether such application is
complete and shall immediately transmit such
determination to the applicant for the develop-
ment project. [f such written determination is
not made within 30 days after receipt of the
application, the application shall be deemed
complete for purposes of this chapter. In the
event that the application is determined not to be
complete, the agency’s determination shall specify
those parts of the application, which are incom-
plete and shall indicate the manner in which they
can be made complete.”
The emphasis indicates an addition to the statute which
was added in 1979, effective October 2, 1979.
C-27
The portion of Section 65943 relevant to this discussion
is the last sentence, “‘In the event that the application is
determined not to be complete, the agency’s determina-
tions shall specify those parts of the application which are
incomplete and shall indicate the manner in which they
can be made complete.”’
The court concludes that wherever in Chapter 4.5 of the
Government Code a determination of incompleteness is
made, the contents of the determination is governed by
Section 65943 in that “‘the agency’s determination shall
specify those parts of the application which are in-
complete and shall indicete the manner in which they can
be made complete.”
The written determination of incompleteness made by
the City and transmitted to Kollsman does not comply
with the letter or the substance of the statutory require-
ments. It is defective and inadequate to accomplish the
statutory purpose. It is no more than a title without
substance, an empty shell, which does not attempt to
conform to the legislative purpose which, as the court sees
it, is an instruction to the City to be helpful by being
specific, not only in the respects which the City considers
the application incomplete but in addition thereto telling
him exactly what he might do to make it complete. As a
consequence, the document sent to Kollsman on Novem-
ber 22, 1978 entitied ‘“‘ Determination of Incompletness of
Application” is ineffective as the document required by
Section 65924 in light of the provisions of the last
sentence of Section 65943 and that the document should
be disregarded.
As was previously pointed out, there was nothing to
compel the City to make a determination as to the
completeness or incompleteness of an application until 60
days after September 26, 1978 when Cal.Gov.Code §
65924 became effective. Even though as early as May 12,
C-28
1978, it was apparent to the City that Kollsman knew of
no environmental information or engineering information
or other information which the City could lawfully require
an applicant to furnish, the City made no determination as
to completeness or incompleteness. On the contrary, the
City suspended processing the application. After the
effective date of Section 65924, this posture did not
change despite amendment to Section 65941 providing
that the informational equivalent of an EIR could not be
required. The document of November 22, 1979 shows
that at that time, the City was still asserting a lack of the
informational equivalent of an EIR. The court concludes
that the City did not proceed to make a bona fide
determination of completeness or incompleteness at any
time prior to November 22, 1978.
[13] The City was familiar with the statutory provi-
sions. The insufficiency of the notice given indicates that
the City had no intention to actually specify any parti-
culars in which the application could be said to be
incomplete because there was no additional information
which could be lawfully required.
It was the intent of the legislature that in the event of
failure to meet the substantive requirements prescribed in
Section 65943 within the time limits, the application
should be deemed complete. Further, the court finds as a
fact that the information which could legally be required
by the City was supplied to the City and the application
was in fact complete. The court concludes that in all
respects the application must be deemed complete for the
purposes of Cal.Gov.Code Chapter 4.5 and deemed
accepted as complete as of November 22, 1978.
D. Approval of the Kollsman Application
Section 65950 of the Government Code provides in
pertinent part: “Any public agency which is the lead
C-29
agency for a development project shall approve or dis-
approve such project within one year from the date on
which an application requesting approval of such project
has been received and accepted as complete by such
agency.” Section 65956(a) provides that “‘|i]n the event
that a lead agency or a responsible agency fails to act to
approve or to disapprove a development project within the
time limits required by this article, such failure to act shall
be deemed approval of the development project.”” Under
Sections 65950 and 65956, the City was required to
approve or disapprove the Kollsman application within
one year of the date it became complete, November 22,
1978.
The law provides that the time limits for action on
applications are maximum time limits and that public
agencies shall, if possible, approve or disapprove develop-
ment projects in shorter periods of time. Cal.Gov.Code §
65953. That it could have been and should have been
found complete long before the expiration of 60 days from
September 26, 1978 has been discussed. The City
anticipated the expiration of the 60 day time limit for
determining that the application was complete or incom-
plete by 3 days. However, in near total disregard of
Section 65953, the City’s action on processing applica-
tions was limited to compliance with maximum time limits
as calculated by the City. This calculation of the maxi-
mum time limit to approve or disapprove a development
project as required by Section 65956 was calculated as
being 60 days from the effective date of Section 65924,
September 26, 1978, plus one year, or November 26,
1979.
[14] Adhering to this method of calculation, it was by
letter dated November 26, 1979 that the City advised
Kollsman that his development application was dis-
approved for lack of completeness. However, the action as
C-30
to a determination of completeness or incompleteness of
an application was taken by the City on November 22,
1978. Since the court has ruled that this action is to be
taken as accepted as complete, the maximum time limit
prescribed by Section 65950 expired one year from
November 22, 1978 and the action taken by the City on
November 26, 1979, was in excess of the one year time
limit. The City failed to act to approve or disapprove the
Kollsman development project within the time limit of
Section 65956 and it is therefore deemed approved as
provided in Section 65956.
The notice of November 14, 1979 reads like a stroke of
conscience. The Kollsman tract number and the appli-
cant’s filing date were noted. It indicates that the one-year
deadline for approval or disapproval of the project was
approaching and that the City intended to disapprove the
project on November 21, 1979, one day before expiration
of the deadline. But the deadline passed before the
disapproval which was not forthcoming until November
26, 1979. The notice of November 14, 1979 reflects an
awareness that the Kollsman application was complete in
fact on November 22, 1978. In this case, the conse-
quences of missing the deadline are just.
It is found and determined that there is no just reason for
delay in the entry of judgment on this claim. Judgment on
Count VII should be entered as a final judgment on this
claim.
Plaintiff is entitled to judgment that his development
project, which is identified by reference to Tentative Tract
Map 33300, should be deemed approved subject to timely
determination of ordinary and reasonable conditions to
the recordation of a final tract map as otherwise provided
by law.
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United States District Court for the
Central District of California
PAUL KOLLSMAN; TASHI LAND
CORPORATION, a New York
corporation
Judgment
by 17-
770 pls
This action came on for trial before the Court, Honorable
Albert Lee Stephens, Jr., District Judge, presiding, and the
issues having been duly tried and a decision having been
duly rendered,
It is Ordered and Adjudged
Plaintiff Kollsman’s development project which is
identified by reference to Tentative Tract Map 33300
shall be deemed approved (Cal. Gov. Code §65956)
subject to timely determination of ordinary and reasonable
conditions to the recordation of a final tract map as
otherwise provided by law.
Plaintiffs,
Vv.
CITY OF LOS ANGELES,
a municipal corporation
Defendants
i ee ee ae ee ee ee ee
More than one claim for relief is presented in this action.
This judgment is on one claim embodied in Count VII and
APPENDIX D
D-2
is not an adjudication of any other claim. The court has
determined that there is no just reason for delay in entry of
judgment on this claim. Judgment on Count VII should be
entered as a final judgment on this claim. Accordingly, the
Clerk is directed to enter this judgment. (Federal! Rules of
Civil Procedure 54 (b)).
The Court reserves jurisdiction over all other claims.
Dated at Los Angeles, California, this 31st day of
January, 1983.
KMELLEZAS ¢
Albert Lee Stephens, Jr.
United States District Judge
WAS aT
See ESR oleae DAE. NRaCH eS
4
;
E-1
California Government Code Section 65950.
§65950. Public lead agency; approval or dis-
approval of project; time
Any public a
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