# Petition for Writ of Certiorari — Kollsman v. City of Los Angeles > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1790%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1211 ## Text \b.F - FITED pec 4 1964 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 A-11 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. A-12 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 A-14 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 A-15 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 A-22 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 Novemb [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1790%3A1. Public record. Not legal advice.