No.

24-

In the
Supreme Court of the United States

JAMES GARY COLLINS,

Petitioner,

v.

MONTEREY COUNTY, CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

John M. Sosbe D. Duane Cook

Sosbe Law Firm, PLLC Counsel of Record
1570 Bond Pike 105 Thoroughbred Way
Stamping Ground, KY 40379 Georgetown, KY 40324
(502) 542-0790
[email protected]

Counsel for Petitioner

October 28, 2024

120070

A
(800) 274-3321 • (800) 359-6859
 i

QUESTIONS PRESENTED FOR REVIEW

Does a taking analyzed under Lucas v. S.C. Coastal

Council1 require that the affected property be left with
no value even if the regulation in question deprives the
property of all economically beneficial uses?

Does Palazzolo v. Rhode Island 2 leave any room for

consideration of the landowners’ expectations in a Penn
Central3 takings analysis?

Do the decisions in Loper Bright Enters. v. Raimondo4,

Cedar Point Nursery v. Hassid, 5 Sheetz v. Cnty. of El
Dorado6 and Lingle v. Chevron USA, Inc.7, change the
way courts should evaluate the “character of governmental
action” factor in a Penn Central analysis?

1. 505 U.S. 1003 (1992)

2. 53 U.S. 606 (2001)

3. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104
(1978)

4. 144 S.Ct. 2244 (2024)

5. 594 U.S. 139 (2021)

6. 601 U.S. 267 (2024)

7. 544 U.S. 528 (2005)

 ii

A LIST OF ALL PARTIES

The parties to this proceeding are James Gary Collins,

Petitioner, and Monterey County, California, Respondent,
both of whom are listed in the caption.
 iii

CORPORATE DISCLOSURE STATEMENT

(RULE 29.6)

The Petitioner is an individual.

 iv

PROCEEDINGS DIRECTLY RELATED

TO THE CASE IN THIS COURT

There are no cases “directly related” to this case as

defined in Supreme Court Rule 14.1(b)(iii).
 v

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

A LIST OF ALL PARTIES . . . . . . . . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT

(RULE 29.6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

PROCEEDINGS DIRECTLY RELATED TO

THE CASE IN THIS COURT . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

CITATIONS TO OPINIONS OR ORDERS

ENTERED IN THE CASE . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE BASIS OF SUPREME

COURT JURISDICTION . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITU TIONA L , STATU TORY A ND

REGULATORY PROVISIONS . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . . 9
 vi

Table of Contents
Page
THE REASONS THIS PETITION SHOULD
BE GRANTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

DOES A TAKING AS ANALYZED UNDER

LUCAS REQUIRE THAT THE AFFECTED
PROPERTY BE LEFT WITH NO VALUE
EVEN IF THE REGULATION IN QUESTION
DEPRIVES THE PROPERT Y OF ALL
ECONOMICALLY BENEFICIAL USES . . . . . . . 21

DOES PALAZZOLO V. RHODE ISLAND

LEAVE ANY ROOM FOR CONSIDERATION
OF THE LANDOWNER’S EXPECTATIONS
I N A PE N N C E N T R A L T A K I N G S
ANALYSIS? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

DO THE DECISIONS IN LOPER BRIGHT

ENTERS. V. RAIMONDO, CEDAR POINT
NURSERY V. HASSID, SHEETZ V. CNTY. OF
EL DORADO AND LINGLE V. CHEVRON
USA, INC. CHANGE THE WAY COURTS
SHOULD EVALUATE THE “CHARACTER
OF GOVERNMENTAL ACTION” FACTOR
IN A PENN CENTRAL ANALYSIS? . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
 vii

TABLE OF APPENDICES
Page
APPENDIX A — MEMORANDUM OF THE
UNITED STATES COURT OF APPEALS
FOR T HE NIN T H CIRCU I T, FILED
JUNE 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA,
FILED AUGUST 18, 2023 . . . . . . . . . . . . . . . . . . . . . 4a

APPENDIX C — RESOLUTION BEFORE

THE BOARD OF SUPERVISORS IN AND
FOR THE COUNT Y OF MONTEREY,
STAT E OF CA LI FORN I A , FI LED
APRIL 19, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31a

APPENDIX D — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED JULY 30, 2024 . . . . . 38a

APPENDIX E — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA,
FILED AUGUST 18, 2023 . . . . . . . . . . . . . . . . . . . . 39a

APPENDIX F — RELEVANT CONSTITUTIONAL

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40a

APPENDIX G — EXCERPTS FROM CALUP

AND MAP LU12B . . . . . . . . . . . . . . . . . . . . . . . . . . 42a
 viii

TABLE OF CITED AUTHORITIES

Page
Cases

Ave. 6E Invs., LLC v. City of Yuma,

818 F.3d 493 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 16

Bridge Aina Le’a, LLC v.

Haw. Land Use Comm’n.,
141 S.Ct. 731 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) . . . . . . . . . . . . . . . . . . . . . 29, 32, 39

Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Dolan v. City of Tigard,

512 U.S. 374 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Halverson v. Skagit County,

42 F. 3rd 1257 (9th Cir. 1994) . . . . . . . . . . . . . . . . 19, 38

Lingle v. Chevron USA, Inc.,

544 U.S. 528 (2005) . . . . . . . . . . . . . . . 12, 23, 29, 31, 37

Loper Bright Enters. v. Raimondo,

144 S.Ct. 2244 (2024) . . . . . . . . . . . . . . . . . 29, 32, 35, 36

Lost Tree Vill. Corp. v United States,

787 F.3d 1111 (Fed Cir., 2015),
cert. denied 137 S. Ct. 2325 (2017) . . . . . . . . . . . . . . 27
 ix

Cited Authorities
Page
Lucas v. S.C. Coastal Council,
505 U.S. 1003 (1992) . . . . . . . . . . . . . . . . . . . . 21, 22, 39

Marbury v. Madison,
5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803) . . . . . . 35

Nollan v. California Coastal Commn.,

483 U.S. 825 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 33, 34

Palazzolo v. Rhode Island,

53 U.S. 606 (2001) . . . . . . . 15, 16, 18, 23, 24, 27, 30, 37

Penn Cent. Transp. Co. v. New York City,

438 U.S. 104 (1978) . . . . . . . . . . . . 14, 18, 19, 26, 28, 29,
30, 31, 37, 38

Sheetz v. Cnty. of El Dorado,

601 U.S. 267 (2024) . . . . . . . . . . . . . . . . . . 23, 29, 33, 34

Tahoe-Sierra Pres. Council v.

Tahoe Reg’l Planning Agency,
535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Constitutional Provisions

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . 23, 32, 36, 39

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . 32

 x

Cited Authorities
Page
Statutes, Rules and Regulations

28 U.S.C. §1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. §1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C. §1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C. §1367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C. §2201 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C.§1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CIP § 20.146.030.C.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CIP § 20.146.030.C.1.c . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Other Authorities

Gregor y M. Stein, The Modest Impact of

Palazzolo v. Rhode Island, 36 Vermont Law
Review 675 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

John Adams, Discourses on Davila, in 6 Works of

John Adams 280 (C. Adams ed. 1851) . . . . . . . . . . . . 33
 1

CITATIONS TO OPINIONS OR
ORDERS ENTERED IN THE CASE

Order of the United States Court of Appeals for the Ninth

Circuit, filed July 30, 2024

Memorandum of the United States Court of Appeals for

the Ninth Circuit, filed June 20, 2024

Judgment of the United States District Court for the

Northern District of California, filed August 18, 2023

Order of the United States District Court for the Northern

District of California, filed August 18, 2023

STATEMENT OF THE BASIS OF

SUPREME COURT JURISDICTION

The District Court Order Granting Defendant’s

Motion for Summary Judgment was entered August 18,
2023. The case was timely appealed and the Circuit Court
Memorandum affirming the District Court Decision was
entered June 20, 2024. Petitioner filed a motion for an
En Banc Hearing which was denied by an order entered
July 30, 2024. This Court has jurisdiction under 28 U.S.C.
§1254(1).

CONSTITUTIONAL, STATUTORY
AND REGULATORY PROVISIONS

United States Constitution Fifth Amendment

United States Constitution Fourteenth Amendment

 2

STATEMENT OF THE CASE

A. Introduction.

This case arises out of the Monterey County Board

of Supervisors’ refusal to approve Mr. Collins’ request to
rezone his property (21 acres in the Carmel Highlands,
hereinafter referred to as the “Collins Property”) to
allow the construction of a home. Mr. Collins and his
wife bought the property in 1994, intending to build
their retirement home there. 8 (5-ER-1047)9 At the time
of his purchase, all contiguous properties were zoned for
residential construction and most had homes. (3-ER-401)
and (4-ER-741)

The Carmel Area Land Use Plan (CALUP) was

adopted by the Monterey County Board of Supervisors
in 1982 and amended several times thereafter. The most
important of those amendments for this case occurred
on February 16, 1994,10 when the zoning designation on
property on Spruce and Canyon Road was changed to
allow residential construction. During a deposition in this
case, planning staff employee, Fiona Jensen, confirmed
that this property, like the Collins Property, was formerly
owned by the Behavioral Science Institute (BSI). It was
consequently given the benefit of the Carmel Area Land
Use Plan (CALUP) special treatment designation which

8. Mrs. Collins passed away in January 2014.

9. Citations to the Circuit Court record have been maintained
for some documents which do not appear in the appendix.
10. Mr. and Mrs. Collins purchased their property on
February 8. 1994.
 3

provided that all BSI properties would be zoned for

residential development.

The Monterey County planning agency has twice

recommended that the property be rezoned as requested
by Mr. Collins—in two separate reports prepared five
years apart by different planning staffers.11 No records
exist explaining why the Collins Property is zoned as
it is. (4-ER-750–752) There has been no claim that the
property contains wetlands, has any landmarks, or
endangered plant or animal species. In short, the Collins
Property has no unique characteristics when compared
to the contiguous properties to justify a different zoning.
(2-ER-78–79)

B. History.

In December of 1966, Mr. N. J. D’Ambrogio transferred

property in the Carmel Highlands area to the Monterey
County Foundation for Conservation (the “Foundation”).
(3-ER- 438 – 439) A local newspaper, the Monterey
Peninsula Herald, dated December 24, 1966, described
the property as consisting of 30 acres with a creek
bank and a grove of redwood trees. (6-ER-1268–1270)
However, the property transferred to the Foundation
did not have any of these characteristics, and it was this

11. At the time of the first report (hereinafter referred to as

the “2017 Agency Report”) (3-ER-427–621; 4-ER-623–656) the
agency was known as Resource Management Agency (“RMA”).
At the time of the second report (hereinafter referred to as the
“2022 Agency Report”) (4-ER-657–740) the agency was known
as Housing and Community Development (“HCD”). This agency
is referred to hereinafter as “RMA/HCD” to avoid any confusion
created by the one agency having two names at two different times.
 4

property which ultimately became the Collins Property.

A second newspaper article in the same newspaper dated
February 6, 1967, quoted an official of the Foundation
as indicating the intention to dedicate a property as a
preserve in the memory of Major DeAmaral. (6-ER-
1275–1277) That dedication never happened. Instead, the
Foundation deeded a conservation and scenic easement
(the “Easement”), to Monterey County. (3-ER-607–615)
The property described in the Easement (the Collins
Property) is not the property described in the newspaper
articles. The Easement which was terminable unilaterally
by the Foundation or its successor never mentions Major
DeAmaral. Subsequent owners of the property, Walter
and Loretta Warren, on December 21, 1990, filed a notice
of termination of the Easement. (3-ER-439)

On the strength of nothing but newspaper articles

in a local paper published more than fifty years ago, the
DeAmaral family has vocally opposed the rezoning and
converted Chairperson Adams of the Board of Supervisors
to their cause.

The various transfers that took the Collins Property

from the Foundation to Mr. Collins are outlined in the
2017 Agency Report of RMA /HCD. (3-ER-438–439)
Properties owned by the Behavioral Science Institute,
including the Collins Property (referred to hereafter as
the “BSI Property”), were identified in the Carmel Area
Land Use Plan as a special treatment area, developable for
residential use. (4-ER-658) There are currently 12 lots that
make up the BSI Property, eight of which are developed
with a total of nine homes. The average elevation of these
homes is 455 feet above sea level, including one home at
845 feet above sea level and one home at 260 feet above
 5

sea level. (4-ER-666) Elevations of the Collins Property

range from 450 to 860 feet above sea level. (4-ER-667)

In 2003, the California Coastal Commission did a

Periodic Review of the Carmel Area Land Use Plan
and prepared Map LU-12b, (4-ER-741) which shows
the Collins Property as a developable parcel with
one maximum allowable unit. It also shows that the
contiguous properties to the north, east, and south have
been zoned for residential development since 1988. The
Collins Property is contiguous on its western side to the
residential lots in the long-established Carmel Highlands
community. (4-ER-741)

The Collins Property is zoned RC(CZ), a zoning

designation which does not allow the construction of a
residence. (4-ER-658) The only uses allowed (hereafter
the “Allowed Uses”) on RC(CZ) property are the following:
(1) Resource dependent educational and scientific research
facilities uses, and low intensity day use; (2) recreational
uses such as trails, picnic areas and boardwalks; and (3)
restoration and management programs for fish, wildlife,
or other physical resources. (4-ER-666–668) Monterey
County, Cal. Ordinance § 20.36.040. In other words, only
public, park-like uses. However, no development permits
have ever been issued for Allowed Uses on property zoned
RC(CZ) in Monterey County.

Nearing retirement, in 2012 Mr. Collins began

applying for the building permits and zone change
necessary for his home. RMA/HCD, after an extensive
review of the specific plans for the Collins home, and after
requiring a number of changes in the building plans,
 6

prepared the 2017 Agency Report recommending the

necessary building permits be approved by the Monterey
County Planning Commission, and that the Monterey
County Board of Supervisors rezone the property.12 (3-
ER-427) This report, with exhibits, was 229 pages long. Id.

The Board of Supervisors’ decision purportedly

depended on the status of the Easement. RMA/HCD
staffers expressed the opinion that the Easement had
been properly terminated by Mr. and Mrs. Warren. (3-
ER-474) Nonetheless, the Board of Supervisors postponed
the decision on the zone change until a court could decide
on the status of the Easement. (6-ER-1236) This allowed
County counsel to argue that constitutional claims based
on a denial of the rezone were not ripe (as the rezoning was
not being denied, just delayed), substantially increasing
the cost and delay of Mr. Collins’ efforts to build his home.

As required by the Board of Supervisors, Mr. Collins

filed an action in the United States District Court for
the Northern District of California (“Collins 1”), Case
Number 519-CV-01214-NC. On motion of County counsel,
Mr. Collins’ constitutional claims were dismissed without
prejudice as unripe and the case proceeded as a quiet title
action. (6-ER-1279–1291) The District Court in Collins 1,
after a bench trial, determined that the Easement had
been terminated, not by the Warrens, but instead by
counsel for Mr. Collins. (6-ER-1288)

Having been successful in the quiet title action, Mr.

Collins again applied for rezoning. RMA/HCD again

12. The report and recommendation was prepared by Anna

Quenga, Associate Planner, and approved by Carl P. Holm, RMA
Director. (3-ER-430)
 7

prepared an extensive report (the “2022 Agency Report”)

and again recommended the rezoning. (4-ER-657) The
2022 Agency Report with exhibits was 84 pages long. (4-
ER-657–740) It was prepared by planner Fionna Jensen
and approved by Erik Lundquist, Director of Housing
and Community Development. (4-ER-660) The RMA/
HCD reported that “Staff finds that there is compelling
evidence to indicate the parcel was intended to allow one
residence.” (4-ER-659)

The 2022 Agency Report contained Ms. Jensen’s

proposed resolution (the “Proposed Resolution”) to be
approved by the Board of Supervisors, which is thirteen
pages long and contains detailed findings supporting the
rezoning. (4-ER-677–690) The 2022 Agency Report and
the Proposed Resolution were presented to the Board
at a public hearing on March 8, 2022 (the “March 2022
Hearing”). (4-ER-826–866) The only feedback that Ms.
Jensen got from any Board member after her presentation
of RMA/HCD support for the zone change were comments
made by Chairperson Adams centered on her support for
the creation of a DeAmaral Preserve (4-ER-858–860) and
comments made by Supervisor Phillips, who spoke in favor
of the rezone. (4-ER-855–856)

Chairperson Adams mentioned the DeA maral

Preserve multiple times during her formal comments at
the March 8, 2022 hearing. (4-ER-858 [line 25]; 4-ER-859
[lines 11-19]; 4-ER-860 [lines 11-12]) No supervisor other
than Chairperson Adams and Supervisor Phillips even
expressed any curiosity about the 2022 Agency Report.
(4-ER-837; 4-ER-857–858; 4-ER-860)

The comments of Supervisor Phillips included the

following in favor of the rezoning: (4-ER-855–856)
 8

I w i l l ma ke a mot ion t o suppor t st a f f

recommendation and approve it. I don’t
think we’ve treated this man in a—fairly in
the process, and I think he is entitled to do
something with this property. If we deny this,
all he can do is maybe can sell to the city and
can raise butterflies on the property, but he has
no other use. And immediately around this area
are residences....

And I think there is still a question of whether

the De Amaral Preserve is on this land or
somewhere else. But that’s something we’ll
litigate down the road, but we’re going to spend
a lot of county money on it. (4-ER-856)

Only two of five supervisors said anything substantive at

the March 22 Hearing—Ms. Adams and Mr. Phillips—and
both made clear that the real issue was the DeAmaral
Preserve claims.

At the end of the March 2022 Hearing, the Board of

Supervisors determined to deny the rezone application but
would not or could not say why. County counsel suggested
that the Board pass a resolution indicating its intent to
deny the application and directing “staff [Ms. Jensen] to
return with the appropriate findings ... at a later date.”
(4-ER-864) This resolution was adopted on a 3-2 vote at
the end of the March 2022 Hearing. (4-ER-864–865) In
other words, the Board made its decision, and directed
Ms. Jensen to invent excuses (“appropriate findings”)
for it (4-ER-863–864)—which she did despite later
testifying that she continued to agree with her original
report. Ms. Jensen prepared a three-page resolution (the
“Final Resolution”) listing six reasons (each referred to
 9

hereafter as “Denial Reason No. 1,” etc.) for denial of

Mr. Collins’ application. (4-ER-867–869) None of the six
reasons invented by Ms. Jensen can be reasonably said
to reflect any legitimate concerns raised by any member
of the Board or the public at the March 2022 Hearing or
thereafter.

The Final Resolution was adopted on April 19, 2022.

(4-ER-869). The purported “reasons” given by Planner
Jensen for the denial of the rezone were contradicted
by the 2022 Agency Report (4-ER-657–740), she had
prepared only a little over a month before. Denial Reasons
1 and 2 (4-ER-868) claimed, wrongly, that the rezone
would be inconsistent with the CALUP because: (a) the
entire property was visible from Highway 1 and the
entire property consisted of upper steeper slopes (Denial
Reason No.1) and (b) development on the property had
the potential to harm Environmentally Sensitive Habitat
Areas (Denial Reason No. 2).

This action (“Collins 2”) was filed shortly after the

adoption of the Final Resolution denying the zone change
(5-ER-1048–1219; 6-ER-1221–1424). Jurisdiction in the
District Court to hear Mr. Collins’ claims exists under 28
U.S.C. §1331, under the Civil Rights Act, 42 U.S.C. 1983,
“its jurisdictional counterpart,” 28 U.S.C. §1343, 28 U.S.C.
§2201 et seq., and, as to the state law claims, 28 U.S.C.
§1367 (supplemental jurisdiction), and 28 U.S.C.§1332
(diversity jurisdiction).

C. Proceedings Below.

On February 21, 2023, before the expiration of

discovery deadlines, the County filed its motion for
 10

summar y judg ment. (4 -ER- 898 – 919) Mr. Collins

responded but also pointed out that summary judgment
was not appropriate because discovery deadlines had not
passed and discovery was not complete. (4-ER-880–884)
The District Court deferred a decision on the County’s
motion and ordered that the parties file supplemental
briefs at the close of discovery.

Counsel for Mr. Collins then took a second deposition

of Ms. Jensen (4-ER-742–807) and obtained the reports
of three experts: Dr. Jeff Froke, Joel Panzer, and Susan
Layne.

Dr. Froke has an extensive, relevant resume. (2-

ER-73–77) and rendered the opinions that: (1) “It is
unreasonable to expect development of any of the Allowed
Uses [on the Collins Property] to yield revenue in excess of
cost” (2-ER-78); and (2) “[T]here are, or at least were, no
significant differences in the flora and fauna, or sensitive
resource areas, or historical values of the Collins Property
when compared to the surrounding—and now developed
properties, to justify the disparate treatment of Collins
with the more restrictive RC(CZ) zoning.” (2-ER-90)

Mr. Panzer has a master’s degree in Geography

with an emphasis in rural and regional planning and
environmental review from California State University
(2-ER-93) and has worked as a planner or planning
consultant in Monterey County for almost 40 years. (2-
ER-94)

Mr. Panzer confirmed that the County has never

issued a permit for the development of Allowed Uses on
any property zoned RC(CZ). (2-ER-95) Mr. Panzer also
reports that he is unaware of any outright denial of a
 11

coastal development permit due to a development’s: (a)

visibility from Highway 1; or (b) its location on slopes in
excess of 30%. (2-ER-96–97) Mr. Panzer’s report points
out that the Monterey County Coastal Implementation
Plan (“CIP”) development standards are not absolute.
For example, viewshed development options include: (i)
developing the portion of the parcel least visible within the
public viewshed (CIP § 20.146.030.C.1); and (ii) designing a
structure to minimize visibility and blending into the site
and site surroundings (CIP § 20.146.030.C.1.c). (2-ER-96)
Moreover, a permit for development on 30% slopes may
be issued with a finding, based on substantial evidence,
that: “ ... there is no alternative which would allow
development to occur on slopes of less than 30% ... ” CIP
§ 20.146.030>c.1.a. [sic] (2-ER-97)

Susan Layne is a California licensed real estate

appraiser (2-ER-149) and has rendered the opinion that the
Collins Property as currently zoned has a residual value
of $55,000 (2-ER-194),13 and that the Collins Property if
rezoned as requested by Mr. Collins would have a value
of $1,510,000. (2-ER-170).

The District Court entered its judgment in favor of

the County on all of Mr. Collins’ claims on August 18,
2023. (1-ER-2–21).

Mr. Collins timely appealed and on June 30, 2024,

eight days after oral argument, the Circuit Court issued
a three-page Memorandum, affirming the District Court,
without reference to the record and without addressing
any arguments made by Mr. Collins.

13. Mr. Collins paid $129,000 for the property in 1994.

 12

Mr. Collins’ Petition for Rehearing En Banc, filed

July 5, 2024, was denied by the Court of Appeals on July
30, 2024.

The Due Process claim.

There is no evidence that members of the Board of

Supervisors were concerned about public health, safety,
or general welfare when considering the Collins’ request,
and, their action bears no substantial relation to those
values. Lingle v. Chevron USA, Inc., 544 U.S. 528, 548
(2005) (Justice Kennedy, concurring: “This separate
writing is to note that today’s decision does not foreclose
the possibility that a regulation might be so arbitrary or
irrational as to violate due process.”)

Ms. Jensen followed instructions to invent reasons for

denial of the Collins application and did so without any
further research or any further contact with any member
of the Board of Supervisors. (4-ER-764; 4-ER-782) The
2022 Agency Report (prepared by Ms. Jensen) says
that the rezoning of this property would be consistent
with the BSI standards established by the Carmel Area
Land Use Plan. (4-ER-686) The Final Resolution (also
prepared by Ms. Jensen) says that rezoning would be
inconsistent with the BSI standards. (4-ER-868) In
addition, the Final Resolution contains a number of factual
statements directly contradicted by the 2022 Agency
Report. For example, the first reason given to justify
the decision includes a finding that the entire property is
visible from Highway 1 and that consequently the rezone
is “inconsistent with the BSI development standards.”
(4-ER-868) However, the entire property is not visible
from Highway 1 (which Ms. Jensen confirmed during her
deposition). (3-ER-409) Moreover, the BSI development
 13

standards do not require that the property not be visible

from Highway 1, they require only that the units (homes)
not be visible from Highway 1. (4-ER-770–771)

The Lucas Takings Claim.

The District Court ignored overwhelming evidence

that the Collins Property as currently zoned has no
economically viable use.

If the entire Collins Property constitutes the upper-

steeper portion of the BSI Property as provided in the
Final Resolution (it does not) and if the entire Collins
property is visible from Highway 1 as provided in the
Final Resolution (it is not), then the Carmel Area Land
Use Plan requires the property to remain as “open space”
(i.e., undeveloped). Policy 4.4.3.E.6 of the Carmel Area
Land Use Plan specifies that the BSI Property may be
developed for residential use, provided the units are
outside of the view from Highway 1 and that the “upper
steeper portion” remain in open space. (4-ER-658)

The District Court found incorrectly that Dr. Froke’s

report was the exclusive basis for Mr. Collins’ claim that
his property as currently zoned has no viable economic
use. (1-ER-11) The issues discussed above regarding the
reach of the Final Resolution provide all of the necessary
support for Mr. Collins’ claim here. However, it is hard to
imagine another person who is more qualified to address
this question. Dr. Froke after extensive analysis reported
that “it is unreasonable to expect development of any of
the Allowed Uses to yield revenues in excess of cost.”
(2-ER-78)
 14

The Penn Central Takings Claim.

The consideration of the Penn Central factors should

have resulted in a determination that the Board of
Supervisors’ action was an unconstitutional taking of the
Collins Property.

Adverse Impact on Mr. Collins.

The District Court found that because the appraisals

of Ms. Layne relied on the opinion of Dr. Froke and because
the District Court discounted Dr. Froke’s opinion in this
regard, Mr. Collins did not present evidence sufficient to
create a genuine controversy about the adverse impact
of the regulation. (1-ER-13) This finding was mistaken
in many ways, and also ignored the obvious—that the
property has less value as currently zoned than it would
if rezoned to allow residential development. Even the
appraiser engaged by the County determined that there
was a significant difference between the value of the
property as currently zoned ($158,000.00) and the value
of the property if rezoned ($950,000.00). (2-ER-200)

Int er ference With Inve stment-Ba cked

Expectations.

In discussing this element, the District Court ignored

most of the evidence which makes Mr. Collins’ expectations
of obtaining a rezone objectively reasonable. Instead, the
District Court concluded:

Given the multiple levels of uncertainty

inherent in the zoning and construction process,
no objectively reasonable person would have
 15

believed they had a reasonable probability of

obtaining Collins’ desired outcome [a rezoning
of the property].”14

The District Court listed general factors which will likely

be present in any case in which notice of the restriction at
the time of purchase is an issue.15 (1-ER-13) These factors
are resolved favorably to Mr. Collins by the holding of
the United States Supreme Court in Palazzolo v. Rhode
Island, supra,16 which was that the Penn Central claim is
not barred by the fact that an owner’s title was acquired
after the effective date of the particular regulation. Id.
at 627.

The lower court decisions do not account for the

multitude of people who did think there was a “reasonable
probability” that the property would be rezoned—
including: (a) the staff and management of the RMA/HCD
who in 2017 did an extensive evaluation of the property and
Mr. Collins’ building plans and produced a 229-page report
recommending not only that the property be rezoned,
but that the necessary building permits be issued for the
Collins’ Property; (b) the architects, engineers, biologists,
lawyers, and the like, that Mr. Collins had to employ to

14. Order at p. 12 (1-ER-14)

15. The general seriousness of zoning laws, the uncertainty
of political processes, and knowledge of restriction at the time of
purchase.
16. While the District Court cites to Palazzolo in its
discussion of ripeness (1-ER-10), it does not mention the holding in
Palazzolo that a buyer’s notice of the restriction does not eliminate
a Penn Central claim.
 16

satisfy the RMA/HCD permitting requirements.17 (c)

the staff and management of RMA/HCD who in 2022
produced an 84-page report recommending that the
property be rezoned.18 For that matter if there was no
reasonable probability of success, why should the Board
of Supervisors insist Mr. Collins undertake the quiet title
action of Collins 1, rather than deny rezoning from the
outset?

Neither the County nor the District Court nor the

Circuit Court offered any explanation as to why it was not
objectively reasonable for Mr. Collins to expect to obtain
rezoning. It is not patently obvious that a person buying
property surrounded by residential properties could not
reasonably think that he could get whatever zoning needed
to build a home on his property. Nor was there any claim
that it is harder to get a property rezoned in Monterey
County than in other counties. Should the decision be
different in the City of Yuma where over a three-year
period, 75 out of 76 rezoning requests were granted?19

The lower courts’ decisions relegate the holding in

Palazzolo to an insignificant and ultimately nonsensical
standing decision. A pre-acquisition restriction will
not prevent a takings claim by the new owner, but the
existence of the restriction will surely count against his
takings claim and in some cases in some jurisdictions will
be dispositive on the takings issue.

17. All as described in the 2017 Report.

18. In 2022, after his success in the quiet title action (Collins
1) Mr. Collins applied only for the rezone.
19. See, Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493,
497 (9th Cir. 2015).
 17

We know that Mr. Collins’ expectations were

“investment-backed”. He purchased the property in 1994
for $129,000 intending to build his retirement home there.
He has continued to pay property taxes even though he has
received no income from the property. In 2012 he began
to apply for the building permits necessary to construct
his home. He has not itemized his costs in those efforts,
but even a cursory glance at the 2017 Agency Report will
make it clear that those costs were considerable because
that report details the work of Mr. Collins’ architects,
lawyers, biologist, etc, that led ultimately to the planning
agency’s decision to recommend the necessary building
permits be granted and that the property be rezoned.
Since that time, Mr. Collins has incurred the enormous
costs of prosecuting two Federal lawsuits (Collins 1 and
2) and the costs of appeal of this case.

The Equal Protection Claim.

The reason for the District Court’s decision on the

Collins Equal Protection claim was as follows:

Collins fails to prov ide any identify ing

information regarding these properties. Most
importantly, Collins doesn’t specify the zoning
information, history of rezoning (if any) or
treatment by the relevant authorities. In doing
so, Collins puts the cart before the horse and
deprives the Court of the necessary context
by which to adjudge the Board’s allegedly
pretextual reasoning. (1-ER-20–21)

Neither the Board, nor RMA /HCD, nor counsel for

the County, nor the District Court explained how
 18

characteristics of the contiguous properties not identified

by Mr. Collins might impact the equal protection analysis.
No one has claimed, for example, that the Collins Property
is unique historically, archeologically, or geologically when
compared to contiguous properties.

THE REASONS THIS PETITION

SHOULD BE GRANTED:

This case presents an opportunity for the resolution of

exceptionally important and controversial issues in the law
of takings under the Fifth and Fourteenth Amendments
to the Constitution.

This case raises the question of whether in Lucas-

type takings claims the key is loss of value or loss of
economically viable use. There was a split of authority
even in this case. The District Court here took the “uses”
road and the Circuit Court took the “value” road.

This case presents the opportunity to finally reconcile

the holding in Palazzolo with the holdings in Penn Central.
The logic of Palazzolo dictates an abandonment of the
owner’s expectations factor in the Penn Central analysis.
Yet many courts view Palazzolo as only a standing case,
having no substantive effect on the takings analysis. See,
Gregory M. Stein, The Modest Impact of Palazzolo v.
Rhode Island, 36 Vermont Law Review 675 (2012). The
Circuit Court in this case ruled that the existence of
the restrictive zoning prior to Mr. Collins’ acquisition
of the property meant that in the opinions of the lower
courts he could not establish any of the three Penn
Central factors.
 19

Recent decisions in this Court should significantly

change the evaluation of the “character of government
action” factor in Penn Central—making clear that property
rights are not poor relations to other constitutional rights
and by making clear that local government interpretations
of their own regulations are not entitled to particular
deference. Recent decisions in this court overrule cases
like Halverson v. Skagit County, 20 a case relied upon by
both the District Court and the Circuit Court in this case.

ARGUMENT

Introduction:

The decisions of the District Court and the Ninth

Circuit Court of Appeals on all the Collins claims are
remarkable for their deference to the claims made by
the County and the disregard of the claims made by Mr.
Collins.

This extreme deference to local government infects

substantive Due Process claims, Takings Clause claims
and, at least in this case, Equal Protection claims alike.
It is symptomatic of the hesitancy of courts to appear to
second guess legislative decisions about the need for, and
potential effectiveness of legislation. For example, with
respect to Mr. Collins’ substantive Due Process claim,
the courts below relied on the holding in Halverson v.
Skagit County, 21 for the proposition that in property-
related due process cases there is no requirement that the
government’s action actually advances its stated purpose:

20. 42 F. 3rd 1257 (9th Cir. 1994)

21. 42 F. 3rd 1257 (9th Cir. 1994)
 20

“ [ W ] her e , a s her e , t he pl a i nt i f fs r ely

on substantive due process to challenge
governmental action that does not impinge on
fundamental rights, we do not require that the
government’s action actually advance its stated
purposes, but merely look to see whether the
government could have had a legitimate reason
for acting as it did.”

Id. at 1262.

It will be a rare local government that cannot come

up with a land use decision which could have a legitimate
reason. If courts will “merely look to see whether the
government could have had a legitimate reason for acting
as it did,” that is the end of the inquiry. If a government
is creative enough with its statement of its purposes, the
Court will not permit the affected landowner to rebut
that claim.

But some evaluation of regulations is necessary. If

courts cannot take a hard look at the real purposes and
likely outcome of land use decisions, they cannot determine
whether the restriction is arbitrary and irrational (for Due
Process purposes), or that a land use restriction goes too
far (for Takings Clause purposes) if they do not take a
hard look at how far the restriction actually goes.

This is not a case in which deference is owed to the

District Court’s review of the evidence because the County
presented no evidence.
 21

DOES A TAKING AS ANALYZED UNDER LUCAS22

REQUIRE THAT THE AFFECTED PROPERTY BE
LEFT WITH NO VALUE EVEN IF THE REGULATION
IN QUESTION DEPRIVES THE PROPERTY OF ALL
ECONOMICALLY BENEFICIAL USES?

Answer: This is still very much an open question, but

elimination of all economically viable uses seems more
like the functional equivalent of a government occupation
of the property than does the elimination of value, and is
consistent with the actual language used by the Court in
Lucas.

The Circuit Court took the “value” road and found that
“[T]he complete elimination of a property’s value is the
determinative factor” for the application of a Lucas taking.
Circuit Court Memorandum filed June 20, 2024 at page
2. The District Court took the “economically viable uses”
road. The District Court discounted the detailed opinion
of Collins’ expert, Dr. Froke, who concluded that the
Allowed Uses would be unlikely to ever generate income
in excess of costs. The District Court completely ignored
the Collins argument that the six reasons the County gave
in its Final Resolution will, although illegitimate, require
the property to remain undeveloped.

On the other hand, the District Court accepted at

face value the County’s assertion that the Allowed Uses
gave the property economically viable uses even though
the County presented no evidence on this point and did
not rebut the claims made by Mr. Collins.

22. 505 U.S. 1003 (1992).

 22

In Lucas this Court ruled that:

We think, in short, that there are good reasons

for our frequently expressed belief that when
the owner of real property has been called upon
to sacrifice all economically beneficial uses in
the name of the common good, that is, to leave
his property economically idle, he has suffered
a taking.

Lucas, supra, at 1019.

However, the Court in Tahoe-Sierra Pres. Council v.

Tahoe Reg’l Planning Agency, 23 emphasized value over
economic viability. The dissenters described the decision
of the majority as follows:

T he Cou r t a lso re a ds L u ca s a s bei ng

fundamentally concerned with value, ante,
at 25-27, rather than with the denial of “all
economically beneficial or productive use of
land,” 505 U.S. at 1015. But Lucas repeatedly
discusses its holding as applying where “no
productive or economically beneficial use of land
is permitted.” ....

Id. at 350. (Rehnquist dissent, joined by Scalia and

Thomas).

Recently, this Court has adopted the position of the

dissenting justices in Tahoe-Sierra, and put the emphasis
back on the denial of economic uses rather than denial of
all value as the touchstone of a Lucas taking:

23. 535 U.S. 302 (2002).

 23

(“[T]he Fifth Amendment is violated when land-

use regulation does not substantially advance
legitimate state interests24 or denies an owner
economically viable use of his land” (internal
quotation marks omitted))

Sheetz v. County of El Dorado25 (Emphasis supplied.)

Where, as here, the government requires property to

remain idle that is the functional equivalent of an actual
occupation of the land by the government. While the
land may have some residual value, the value is entirely
speculative, having significant value only to a person who
believes he can one day get the restriction lifted 26. The
law should not, in that case, put the risk that the property
can be sold on the landowner and ignore the value lost
because of the government restriction. The speculative
risks will not be placed on the government in any event
because, the compensation to be paid by the government
will presumably be measured by the loss caused by the
regulation less the value (if any) of the property retained
by the landowner.

24. But, see the discussion below regarding Lingle v. Chevron

U.S.A, Inc. and the “substantially advances” part of this takings
formulation.
25. 601 U.S. 207, 274 (2024)
26. All the more troubling given the district court below
would find such a buyer’s belief was not objectively reasonable
despite Palazzolo
 24

DOES PALAZZOLO V. RHODE ISLAND 27 LEAVE

A N Y ROOM FOR CONSIDERATION OF THE
LANDOWNER’S EXPECTATIONS IN A PENN
CENTRAL TAKINGS ANALYSIS?

Answer: No.

Palazzolo’s basic premise is that if a land use

restriction constitutes a taking, the transfer of the affected
property does not prevent the transferee from pursuing
compensation for the taking:

Were we to accept the State’s rule, the

postenactment transfer of title would absolve
the State of its obligation to defend any action
restricting land use, no matter how extreme
or unreasonable. A State would be allowed, in
effect, to put an expiration date on the Takings
Clause. This ought not to be the rule. Future
generations, too, have a right to challenge
unreasonable limitations on the use and value
of land.

533 U.S. 627.

This holding is not qualified by reference to the

identity of any subsequent purchaser or by reference to
when the transfer occurs or what the expectations of the
subsequent purchaser are at the time of the transfer. But if
this is so, the expectations of some unknown future buyer
have nothing to do with whether a taking has occurred.

27. 533 U.S. 606 (2001).

 25

If, on the other hand, the claimant/landowner buys

the property before the land use restriction is adopted,
why would his expectations be relevant to the question of
whether a taking has occurred? Suppose for example, a
speculator expects the county to adopt a limit on wetlands
development and suppose the idea of such a limit has
been batted around for a long time and is well known.
If the wetlands development limit would have been a
taking before the speculator bought the property, why
should his buying the property change that calculus? If
the speculator sells the property before resolution of the
takings issue, is it the transferee’s expectation that is
relevant to the takings determination?

On its face the Takings Clause requires an answer

to two basic questions: (a) was the claimant’s property
taken by the government, and (b) if so, what constitutes
just compensation for what was taken? The landowner’s
expectations and investments are relevant to the issue
of the value of what was taken only if the concern is (as
was Justice O’Connor’s concern in Palazzolo) that the
claimant not receive a windfall. But if that is a concern,
surely there are better ways to address windfall profits
than by illogical engineering of the definition of takings.

Suppose Mr. Collins spent nothing on the property and

had no expectations at the time he acquired the property
(for example by gift or inheritance) and later filed a motion
for an application to rezone his property. And suppose
the County is found to have taken his property. Is just
compensation determined by a reasonable appraisal of
the property or is just compensation determined to be
$0 because Mr. Collins had no expectations and made no
investments in the property?
 26

Justice O’Connor justified the “owner expectations”

factor in Penn Central as a way to prevent windfall profits
to real estate speculators. Justice Scalia’s response to
Justice O’Connor included the following analysis:

The principle that underlies her separate

concurrence is that it may in some (unspecified)
circumstances be “[un]- fai[r],” and produce
unacceptable “windfalls,” to allow a subsequent
purchaser to nullify an unconstitutional
partial taking (though, inexplicably, not
an unconstitutional total taking) by the
government. Ante, at 635. The polar horrible,
presumably, is the situation in which a sharp
real estate developer, realizing (or indeed,
simply gambling on) the unconstitutional
excessiveness of a development restriction
that a naïve landowner assumes to be valid,
purchases property at what it would be worth
subject to the restriction, and then develops
it to its full value (or resells it at its full value)
after getting the unconstitutional restriction
invalidated.

This can, I suppose, be called a windfall—

though it is not much different from the
w indfalls that occur ever y day at stock
exchanges or antique auctions, where the
knowledgeable (or the venturesome) profit at
the expense of the ignorant (or the risk averse).
There is something to be said (though in my
view not much) for pursuing abstract “fairness”
by requiring part or all of that windfall to
be returned to the naïve original owner, who
 27

presumably is the “rightful” owner of it. But

there is nothing to be said for giving it instead
to the government—which not only did not lose
something it owned, but is both the cause of the
miscarriage of “fairness” and the only one of
the three parties involved in the miscarriage
(government, naïve original owner, and sharp
real estate developer) which acted unlawfully—
indeed unconstitutionally.

533 U.S. at 636.

Apart from concerns about windfalls to speculators

(which Justice Scalia has so clearly dispensed with in
his Palazzolo concurring opinion), there is no logical
connection between the expectations of the property
owner and the question of whether a takings has occurred.

Moreover, there is no good reason to suspect that

speculators are standing in line to purchase properties
which have regulatory restrictions which may lead to
a successful takings claim. See, Lost Tree Vill. Corp. v
United States28 (“In the real world, real estate investors
do not commit capital either to undevelopable property
or to long, drawn-out, expensive and uncertain takings
lawsuits.”)

The Circuit Court held (again without citation to

authority or to the record):

The County’s decision merely maintained

the existing designation and was not at all

28. 787 F.3d 1111, 1118 (Fed Cir., 2015), cert. denied 137
S. Ct. 2325 (2017).
 28

comparable to a physical invasion of his

property.

Taken literally, this would mean that government agencies

have no obligation to compensate property owners for, or
correct past takings deemed to have occurred prior to,
the acquisition of the property. In other words, this logic
renders the decision of this Court in Palazzolo toothless.
In the Ninth Circuit the landowner who acquires property
after the effective date of a land use restriction has
standing to bring a takings claim, but will fail all three
Penn Central factors—(a) the “character of government
action,” because the government need take no action, (b)
the owner expectations factor, because the owner had
notice of the land use restriction before he purchased the
property, and (c) the adverse impact on the owner factor,
because the owner knew what he was getting into.

Any reasonable weighing of the benefits to the public

as against the losses to Mr. Collins comes out decidedly in
favor of Mr. Collins. The Collins Property has no historic
buildings, no wetlands, no archeological sites, it has no
endangered plants or animals. Even if it did have any of
these characteristics, they could not be enjoyed by the
community because the property is still owned by Mr.
Collins who will retain at least the ability to exclude the
public from his property.
 29

DO THE DECISIONS IN LOPER BRIGHT ENTERS.

V. RAIMONDO, CEDAR POINT NURSERY V. HASSID,
SHEETZ V. CNTY. OF EL DORADO AND LINGLE V.
CHEVRON USA, INC. CHANGE THE WAY COURTS
SHOULD EVALUATE THE “CHARACTER OF
GOVERNMENTAL ACTION” FACTOR IN A PENN
CENTRAL ANALYSIS?

Answer: Yes as to Loper, Cedar Point, and Sheetz;

No as to Lingle.

The Fifth Amendment just compensation requirement

is “designed to bar the government from forcing some
people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.” The
Court’s decision in Penn Central, supra, has for more
than 50 years provided the standards for the evaluation
of claims of regulatory takings, but those standards have
proven to be very difficult to apply. Mr. Justice Thomas
has described the problem this way:

The Court has “generally eschewed any set

formula for determining how far is too far,”
requiring lower courts instead “to engage in
essentially ad hoc, factual inquiries.” .... ” But
courts must also “‘weig[h] ... all the relevant
circumstances.’” A s one might imag ine,
nobody—not States, not property owners, not
courts, nor juries—has any idea how to apply
this standardless standard.

Bridge Aina Le’a, LLC v. Haw. Land Use Comm’n. 29 J.

Thomas dissent to denial of petition for certiorari. Accord,

29. 141 S.Ct. 731 (2021).

 30

Pomeroy, 22 Fed. Cir. B.J. 677, Penn Central after 35

years: A Three Part Balancing Test or a One Strike Rule
(2012-2013). Given the “ad hoc, factual inquiries” involved,
it is distressing to see the district court make no findings
of fact.

If the property owner’s expectations are not a factor

to be considered for the reasons discussed above, then a
takings analysis requires only a balancing of public and
private interests. A simple balancing of public and private
interests was suggested, in fact, by Justice O’Connor in
her concurring opinion in Palazzolo v. Rhode Island:

We have “identified several factors that have

particular significance in these “essentially
ad hoc, factual inquiries. Two such factors are
the economic impact of the regulation on the
claimant and, particularly, the extent to which
the regulation has interfered with distinct
investment-backed expectations. Another is
“the character of the governmental action.
The purposes served, as well as the effects
produced, by a particular regulation inform
the takings analysis. [A] use restriction on
real property may constitute a ‘taking’ if not
reasonably necessary to the effectuation of
a substantial public purpose, or perhaps if it
has an unduly harsh impact upon the owner’s
use of the property”);

Id. at 633-634 (O’Connor concurring) (Internal citations

and quotation marks eliminated. Emphasis supplied.)
The highlighted language from Justice O’Connor points
to a balancing in which a taking may be found even when
 31

some public purpose is served by the restriction if the

impact of the restriction on the landowner is “unduly
harsh.” There is no mention of the expectations of the
landowner in this example. This balancing addresses the
two Penn Central factors necessary for a fairness and
justice determination—the impact to the landowner and
the public purpose served. Although the Penn Central
decision does not mention balancing, and although Justice
O’Connor does not expressly advocate a balancing of the
factors, her description of the “character of governmental
action” factor—“[t]he purposes served, as well as the
effects produced, by a particular regulation”—certainly
invites a balancing with the effect of the regulation on the
rights of the landowner. It does not remotely justify any
deference to governmental explanations of the purposes
or effect of the regulation. 30

In its decision affirming the District Court’s summary

judgment on the Collins due process claim, the court of
appeals echoed the District Court and ruled that:

[T]the county’s decision explained that rezoning

the property would be inconsistent with the
broader use plan for the area that preserved
its natural character.

Circuit Court Memorandum at p.2.

The “broader use plan for the area”—the Carmel

Area Land Use Plan (“CALUP”)—of course designates
30. The Court’s rejection of the similar “substantially advance
legitimate state interests” test in Lingle v. Chevron (in an opinion
authored, ironically, by Justice O’Connor) is addressed below.
 32

certain areas to be preserved. However, the CALUP also

identifies areas in which housing development is allowed
and expected. In its briefs below, Mr. Collins showed that
the decision of the Board to deny the Collins zone change
request was inconsistent with the CALUP. The “findings”
of the Board were also inconsistent with the findings of
the County’s planning agencies and they were inconsistent
with the development which has already occurred on other
parts of the BSI property.

This deference shown to the Board of Supervisors’

interpretation of the CALUP was never appropriate and
is certainly not supportable after Loper, and Cedar Point.

Nothing in the language of the Constitution suggests

that property rights are of less importance than the other
rights addressed in the Bill of Rights. Indeed, property
rights are the only rights mentioned repeatedly in the first
ten amendments (See the 3rd, 4th, and 5th Amendments).

In Cedar Point Nursery, supra, this Court reversed

the Ninth Circuit Court of Appeals and held that a
California Statute that required land owners to give
access to their property to union organizers was a taking
under the Fifth Amendment. This Court described the
Fifth Amendment and the importance of property rights
in this way:

The Takings Clause of the Fifth Amendment,

applicable to the States through the Fourteenth
Amendment, provides: [N]or shall private
property be taken for public use, without just
compensation.” The Founders recognized
that the protection of private property is
 33

indispensable to the promotion of individual

freedom. As John Adams tersely put it,
[p]roperty must be secured, or liberty cannot
exist.” Discourses on Davila, in 6 Works of John
Adams 280 (C. Adams ed. 1851). This Court
agrees, having noted that protection of property
rights is necessary to preserve freedom and
empowers persons to shape and to plan their
own destiny in a world where governments are
always eager to do so for them....

594 U.S. 139, 147. (Internal citations and quotation marks

omitted.).

Sheetz v. County of Eldorado involved this Court

in review of a traffic impact fee adopted by the County
Board of Supervisors and imposed as a condition to the
issuance of a building permit for the construction of a
modest home. Mr. Sheetz paid the fee under protest and
then brought suit in California on the theory that the fee
was an improper exaction and, consequently, a takings
prescribed by this Court’s holdings in Nollan v. California
Coastal Commn. 31 and Dolan v. City of Tigard. 32 The
County argued successfully in the lower courts that
Nollan and Dolan applied only to permit conditions set
by administrators, not to fees imposed by Board-enacted
legislation. This Court reversed and held that the Takings
Clause does not distinguish between legislative and
administrative imposed permit conditions. In the course
of its opinion the Court said this about the Takings Clause:

31. 483 U.S. 825 (1987).

32. 512 U.S. 374 (1994).
 34

Failing to give like treatment to legislative

conditions on building permits would thus
relegate the just compensation requirement]
to the status of a poor relation to other
constitutional rights. In sum, there is no basis
for affording property rights less protection in
the hands of legislators than administrators.
The Takings Clause applies equally to both—
which means that it prohibits legislatures and
agencies alike from imposing unconstitutional
conditions on land-use permits.

Sheetz, 601 U.S. 679 (2024)(Internal citations and quotation

marks omitted. Emphasis supplied.)

Responding to claims in dissent that the Cedar Point

ruling would involve the Court in legislating, the Court
said:

With regard to the complexities of modern

society, we think they only reinforce the
importance of safeguarding the basic property
rights that help preserve individual liberty,
as the Founders explained. In the end, the
dissent’s permissive approach to property
rights hearkens back to views expressed (in
dissent) for decades. See, e.g., Nollan, 483
U. S., at 864 (Brennan, J., dissenting) (“[The
Court’s] reasoning is hardly suited to the
complex reality of natural resource protection
in the 20th century.”); Loretto, 458 U. S., at 455
(Blackmun, J., dissenting) (“[T]oday’s decision
... represents an archaic judicial response to a
modern social problem.”); Causby, 328 U. S., at
 35

275 (Black, J., dissenting) (“Today’s opinion is,

I fear, an opening wedge for an unwarranted
judicial interference with the power of Congress
to develop solutions for new and vital national
problems.”). As for today’s considered dissent,
it concludes with “Better the devil we know
... ,” post, at 16, but its objections, to borrow
from then-Justice Rehnquist’s invocation
of Wordsworth, “bear[ ] the sound of ‘Old,
unhappy, far-off things, and battles long ago,’”
Kaiser Aetna, 444 U. S., at 177.

594 U.S. 139, 158-59.

Loper, supra, involved a challenge to a r ule

promulgated by the Marine Fisheries Service (MFS)
which required some fishing boats to allow government
observers to travel with the boats and required boat
owners to pay the salaries of those observers. Faced
with the claim that the relevant statute did not authorize
such a regulation, the lower courts cited Chevron U. S.
A. Inc. v. Natural Resources Defense Council, Inc 33
for the proposition that courts are required to defer to
“permissible” agency interpretations of the statutes
those agencies administer—even when a reviewing court
reads the statute differently. The Loper Court overruled
Chevron. The Court relied, in part, on the Administrative
Procedure Act provisions expressly granting to the courts
the responsibility to interpret the law, 5 U. S. C. §706, but
made clear that court’s powers in that regard stretches
back to Marbury v. Madison, 5 U.S. 137, 1 Cranch 137,
177, 2 L. Ed. 60 (1803). (“It is emphatically the province

33. 467 U. S. 837 (1984)

 36

and duty of the judicial department to say what the law

is.”). The Loper Court’s reasoning is summarized in the
following passage:

[A]gencies have no special competence in

resolving statutory ambiguities. Courts do. The
Framers anticipated that courts would often
confront statutory ambiguities and expected
that courts would resolve them by exercising
independent legal judgment. Pp. 21–23.

144 S. Ct. 2244, 2251. This reasoning is equally applicable

to interpretation of state and local regulations., like
CALUP.

The County’s incorrect and unsubstantiated claim

that the requested rezone would be inconsistent with the
CALUP is entitled to no greater deference than are the
claims of the planning agencies and Mr. Collins that the
rezone would be consistent with the CALUP.

Lingle purports to severely limit the following tried

and true definition of a takings requiring compensation:

T]he Fifth Amendment is violated when land-

use regulation does not substantially advance
legitimate state interests or denies an owner
economically viable use of his land” (internal
quotation marks omitted)).

This Court ruled that the “substantially advances”

formula is not a valid method of identifying regulatory
takings for which the Fifth Amendment requires just
compensation”.
 37

However, this changes little or nothing in a proper

understanding of the requirements of Penn Central.
Justice O’Connor34 in her concurring opinion in Palazzolo,
defined the “character of governmental action” factor to
require an examination of “[t]he purposes served, as well
as the effects produced, by a particular regulation.” This
does not require a different analysis of governmental
action than does an examination of whether “a regulation
substantially advances legitimate state interests.”

The Lingle opinion included the following reasoning:

In stark contrast to the three regulatory

takings tests discussed above, the “substantially
advances” inquiry reveals nothing about
the magnitude or character of the burden a
particular regulation imposes upon private
property rights. Nor does it provide any
information about how any regulatory burden
is distributed among property owners. In
consequence, this test does not help to identify
those regulations whose effects are functionally
comparable to government appropriation or
invasion of private property; it is tethered
neither to the text of the Takings Clause nor
to the basic justification for allowing regulatory
actions to be challenged under the Clause.

544 U.S. 528, 542.

There is nothing in the three Penn Central factors

explicitly requiring the revelation of the “magnitude or

34. Who, ironically, was the author of the opinion in Lingle.

 38

character of the burden a particular regulation imposes

upon private property rights” nor is there anything in
Penn Central that specifically requires a finding about
how any regulatory burden is distributed among property
owners. So, in that sense the “substantially advances” test
is no different than what we have now.

Finally, the “substantially advances” formula

is not only doctrinally untenable as a takings
test—its application as such would also present
serious practical difficulties. The Agins formula
can be read to demand heightened means-ends
review of virtually any regulation of private
property. If so interpreted, it would require
courts to scrutinize the efficacy of a vast array
of state and federal regulations—a task for
which courts are not well suited. Moreover, it
would empower—and might often require—
courts to substitute their predictive judgments
for those of elected legislatures and expert
agencies.

Id. at 544.

This is really the heart of the problem of Penn Central

standards—the reluctance of courts to evaluate the
efficacy of legislation and regulations which has led to
cases like Halverson, supra. Moreover, the Penn Central
“character of governmental action” factor as described by
Justice O’Connor in her concurring opinion in Palazzolo
requires an examination of “the purposes served, as well
as the effects produced, by a particular regulation.” This
requires no less an evaluation of legislation than does the
“substantially advances test.” Constitutional cases impose
unique burdens on courts. The Collins case should have
 39

been easy because the Board’s decision created no public

benefits while it prevents the construction of one modest
home on the Collins Property. Other cases will be harder.
But the Cedar Point decision and common sense make
clear that the effort is required.

More than this, the Court in Sheetz has revived the

“substantially advance legitimate state interests” test
verbatim:

“[T]he Fifth Amendment is violated when

land-use regulation does not substantially
advance legitimate state interests or denies
an owner economically viable use of his land”
Quoting from Lucas v. South Carolina Coastal
Council, 505 U. S. 1003, 1016, 112 S. Ct. 2886,
120 L. Ed. 2d 798 (1992).

601 U.S. 267, 274 (2024).

 40

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

John M. Sosbe D. Duane Cook

Sosbe Law Firm, PLLC Counsel of Record
1570 Bond Pike 105 Thoroughbred Way
Stamping Ground, KY 40379 Georgetown, KY 40324
(502) 542-0790
[email protected]

Counsel for Petitioner

October 28, 2024

APPENDIX
 i

TABLE OF APPENDICES
Page
APPENDIX A — MEMORANDUM OF THE
UNITED STATES COURT OF APPEALS
FOR T HE NIN T H CIRCU I T, FILED
JUNE 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA,
FILED AUGUST 18, 2023 . . . . . . . . . . . . . . . . . . . . . 4a

APPENDIX C — RESOLUTION BEFORE

THE BOARD OF SUPERVISORS IN AND
FOR THE COUNT Y OF MONTEREY,
STAT E OF CA LI FORN I A , FI LED
APRIL 19, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31a

APPENDIX D — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED JULY 30, 2024 . . . . . 38a

APPENDIX E — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA,
FILED AUGUST 18, 2023 . . . . . . . . . . . . . . . . . . . . 39a

APPENDIX F — RELEVANT CONSTITUTIONAL

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40a

APPENDIX G — EXCERPTS FROM CALUP

AND MAP LU12B . . . . . . . . . . . . . . . . . . . . . . . . . . 42a
 1a

APPENDIX A —Appendix A
MEMORANDUM OF THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED JUNE 20, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-16153

JAMES G. COLLINS,

Plaintiff-Appellant,

v.

COUNTY OF MONTEREY,
A GOVERNMENT ENTITY,

Defendant-Appellee.

June 12, 2024, Argued and Submitted,

San Francisco, California; June 20, 2024, Filed

Appeal from the United States District Court

for the Northern District of California. D.C.
No. 5:22-cv-02560-NC. Nathanael M. Cousins,
Magistrate Judge, Presiding.

Before: SCHROEDER, GOULD, and R. NELSON,

Circuit Judges.
 2a

Appendix A

MEMORANDUM*

James Collins appeals the district court’s grant of

summary judgment in favor of the County of Monterey
in his 42 U.S.C. § 1983 action challenging the County’s
refusal to approve his request for rezoning. Collins
sought to construct a home on property he had purchased
that was designated a resource conservation zone. That
designation prohibits residential construction.

Collins first contends that the County’s decision

denied him substantive due process because it lacked any
substantial relation to the public health, safety, or general
welfare. Yet, the County’s decision explained that rezoning
the property would be inconsistent with the broader use
plan for the area that preserved its natural character.
Collins has thus failed to show the government could have
had no legitimate reasons for its decision. See Halverson
v. Skagit County, 42 F.3d 1257, 1262 (9th Cir. 1994).

Collins also argues that the County’s decision deprived

his property of any economically viable use. His own
expert appraised the property as having significant
economic value, so there was no taking within the meaning
of Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 112
S. Ct. 2886, 120 L. Ed. 2d 798 (1992). See Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S.
302, 332, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002) (A Lucas

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.
 3a

Appendix A

taking occurs only in the “‘extraordinary case’ in which a

regulation permanently deprives property of all value.”).

Collins’s alternative takings claim also fails because

he did not proffer evidence showing that any of the
Penn Central factors weigh in his favor. See Penn Cent.
Transp. Co. v. City of New York, 438 U.S. 104, 124, 98
S. Ct. 2646, 57 L. Ed. 2d 631 (1978) (setting forth three
factors for determining whether a taking has occurred).
It was not objectively reasonable for Collins to expect to
build a residence on the property because he purchased
it knowing that the zoning designation did not permit him
to do so. The County’s decision merely maintained the
existing designation and was not at all comparable to a
physical invasion of his property. Moreover, the economic
impact of the County’s decision cannot be assessed because
Collins failed to offer an appraisal of the property’s value
before the decision.

To establish an equal protection violation, Collins

had to provide evidence of similarly situated owners of
property that the County treated differently than he was.
See Gerhart v. Lake County, 637 F.3d 1013, 1022 (9th Cir.
2011). Collins showed only that other properties in the
surrounding area had homes constructed on them. He did
not establish the properties were similarly situated in all
material respects.

AFFIRMED.
 4a

APPENDIXAppendix B
B — ORDER OF THE
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA,
FILED AUGUST 18, 2023
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA

Case No. 22-cv-02560-NC

JAMES G. COLLINS,

Plaintiff,

v.

COUNTY OF MONTEREY,

Defendant.

Filed August 18, 2023

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

Re: ECF 44

After years of sparring, Plaintiff James Collins’

claim of unconstitutional conduct by elected officials of
Defendant County of Monterey (the “County”) reaches
an inflection point. This case concerns the decision by the
County Board of Supervisors (the “Board”) to deny Collins’
application to rezone his property to a less-restrictive
 5a

Appendix B

designation. Collins asserts the Board’s decision not only

deprived him of his chance to build his retirement home
without compensation, but also constituted impermissible
machinations by elected officials. The central issue
boils down to whether the Board’s actions represent
unconstitutional transgressions or mere byproducts of the
democratic process. After consideration of the briefings,
Collins’ claims decisively lie with the latter. Therefore,
the Court GRANTS the County’s motion for summary
judgment.

BACKGROUND

A. Property Overview

This dispute concerns an undeveloped 21-acre

property located on Mt. Devon Road in Monterey County,
California (the “Property”). ECF 56, Ex. D at 1. The
Property is located on a forested hillside in Carmel
Highlands. Id. Prior to Collins’ ownership, the Property
was part of a larger tract. In 1966, the land was donated
to the Monterey County Foundation for Conservation. Id.
at 7. The Foundation subsequently granted a Conservation
and Scenic Easement Deed (the “Easement”) to the
County. Id. The Foundation later granted the land to the
Behavioral Sciences Institute (“BSI”). Id.

In 1983, the County adopted the Carmel Area Land

Use Plan (“CAR LUP”). At that same time, the Collins’
Property was rezoned to Resource Conservation Coastal
Zone (“RC(CZ)”). Id. at 8. The RC(CZ) zoning ordinance
requires a coastal administrative permit, unless exempt,
for the following principal uses: “Resource dependent
 6a

Appendix B

educational and scientific research facilities uses, and

low intensity day use recreation uses such as trails, picnic
areas and boardwalks; Restoration and management
programs for fish, wildlife, and other physical resources.”
Id. at 12. The RC(CZ) zoning designation does not allow
residential development. Id. at 11. The CAR LUP also
listed the broader BSI lands as Special Treatment Areas.
Id. at 9. In pertinent part, this stated “the BSI lands may
be developed for residential use . . . The upper steeper
portions shall remain in open space.” Id.

In 1994, Collins and his wife purchased the Property.

Id. at 8. Twenty years later, Collins filed an application
requesting approval for construction of a single-family
dwelling and rezoning. Id. Collins sought to rezone
the Property from RC(CZ) to Watershed and Scenic
Conservation, Special Treatment, Coastal Zone, which
permits residential development. ECF 44, Ex. D at 1.
The Board denied Collins’ application without prejudice
pending judicial determination concerning the status of
the Easement. Id.

B. Collins I

Collins filed suit before this Court seeking a

declaratory judgment of quiet title on his property as to
the Easement (Collins I). In Collins I, Plaintiff asserted
the Easement had been terminated. Alternatively, Collins
claimed the County should be equitably estopped from
enforcing the Easement because he was a good faith
purchaser for value without notice of the encumbrance.
This Court presided over a three-day bench trial on these
issues.
 7a

Appendix B

The Court issued its Findings of Fact and Conclusions

of Law. See Collins v. County of Monterey, No. 19-cv-
01214-NC, 2021 U.S. Dist. LEXIS 77733, 2021 WL
1561511, at *1-2 (N.D. Cal. Apr. 21, 2021). The Court held
the Easement was terminated in 2019. 2021 U.S. Dist.
LEXIS 77733, [WL] at *6. The Court also concluded that
Collins was aware of the Easement and zoning designation
when he purchased the property. Id. Thus, he was not a
good faith purchaser for value. Id.

C. The Present Dispute

Follow ing the Court’s decision, Collins again

submitted an application to rezone the Property from
RC(CZ) to Watershed and Scenic Conservation. ECF
56, Ex. D at 3. Members of the County’s Housing and
Community Development (“HCD”) staff prepared a report
on Collins’ Property for the Board. The report outlined the
historical background and allowed uses of the Property, as
well as environmental considerations under the California
Environmental Quality Act. The HCD staff also submitted
a Draft Board Resolution. See ECF 56, Ex. G. The Draft
Resolution recommended adopting “ a resolution of intent
to approve the Local Coastal Program Amendment to
rezone the property from Resource Conservation, Coastal
Zone [“RC(CZ)”] to Watershed and Scenic Conservation.”
Id. at 13.

On March 8, 2022, the Board held a public hearing

on Collins’ rezoning application. See ECF 56, Ex.
H. The hearing included testimony from HCD staff
member, Fionna Jensen, members of the public, Collins’
 8a

Appendix B

representative, and Collins himself. At the conclusion of

the hearing, the Board adopted a resolution of intent to
deny the application for the rezone. Id. at 39:14-40:3. On
April 19, 2022, the Board adopted the Resolution denying
Collins’ application. ECF 56, Ex. I. In the Resolution, the
Board concluded that the rezoning was inconsistent with
the BSI development standards because the Property
“contains slopes exceeding 30%, has the highest elevation
of all BSI properties, and is visible from Highway 1 and
Point Lobos.” Id. at 2 Additionally, the Board found the
rezoning had the potential to impact sensitive biological
resources, and that the RC(CZ) zoning is consistent with
the original intent of the easement and requirements of
properties designated Forest and Upland Habitat. Id. at
2-3. Overall, the Board concluded, “[p]ublic policy supports
preservation of the subject property.” Id. at 3.

The present litigation shortly followed. The County

filed this motion for summary judgment. ECF 44 (“Mot.”).
Collins filed an opposition, wherein he requested additional
briefing and discovery. ECF 47 (“Opp’n”). The Court
granted Collins’ request. ECF 51. Following the County’s
reply brief (ECF 48), Collins timely filed his supplemental
briefing with expert reports. ECF 56 (“Pl.’ Suppl.”). The
County also filed a supplemental reply. ECF 63.

LEGAL STANDARD

Summary judgment may be granted only when,

drawing all inferences and resolving all doubts in favor
of the nonmoving party, there is no genuine dispute as to
any material fact. Fed. R. Civ. P. 56(a); Tolan v. Cotton,
 9a

Appendix B

572 U.S. 650, 651, 134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014);
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986). A fact is material when, under
governing substantive law, it could affect the outcome of
the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute
about a material fact is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id. Bald assertions that genuine issues
of material fact exist are insufficient. Galen v. Cnty. of
L.A., 477 F.3d 652, 658 (9th Cir. 2007).

The moving party bears the burden of identifying

those portions of the pleadings, discovery, and affidavits
that demonstrate the absence of a genuine issue of material
fact. Celotex, 477 U.S. at 323. Once the moving party meets
its initial burden, the nonmoving party must go beyond
the pleadings, and, by its own affidavits or discovery, set
forth specific facts showing that a genuine issue of fact
exists for trial. Fed. R. Civ. P. 56(c); Barthelemy v. Air
Lines Pilots Ass’n, 897 F.2d 999, 1004 (9th Cir. 1990)
(citing Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.
1983)). All justifiable inferences, however, must be drawn
in the light most favorable to the nonmoving party. Tolan,
572 U.S. 651 (citing Liberty Lobby, 477 U.S. at 255).

DISCUSSION

Although styled as a partial motion for summary

judgment, the County’s motion attacks each of Collins’
three causes of action. Consistent with the County’s
request, the Court addresses the briefings as a motion
 10a

Appendix B

for summary judgment of all of Collins’ claims. See Reply

at 1 n.1.

I. Preliminary Considerations1

The County requests the Court take judicial notice

of the following documents in support of its motion for
summary judgment: (1) Monterey County Board of
Supervisors Resolution No. 22-125; (2) Findings of Fact
and Conclusions of Law, Collins v. County of Monterey,
No. 19-cv-01214-NC, 2021 U.S. Dist. LEXIS 77733, 2021
WL 1561511 (N.D. Cal. Apr. 21, 2021); (3) Order Amending
Findings of Fact and Conclusions of Law, Collins v. County
of Monterey, No. 19-cv-01214-NC (N.D. Cal. June 7, 2021);
and (4) Monterey County Board of Supervisors Order,
dated September 25, 2018. ECF 44-2 at 1-2. Plaintiff did
not oppose the County’s requests.

The requested documents can be readily grouped into

two categories: (1) the Court’s prior orders in Collins I,
and (2) Monterey County government records. First, the
Court will take judicial notice of its prior orders as they
are publicly filed documents. Reyn’s Pasta Bella, LLC
v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).
However, the Court does not take judicial notice of such
orders to supply facts or conclusions of law to the present

1. The County asserts in its motion for summary judgment

that collateral estoppel prevents Collins from re-litigating certain
issues decided in Collins I. The Court declines to address collateral
estoppel because Collins does not appear to contest the issues as
the County suggests; nor are they necessary to the resolution of
the present dispute.
 11a

Appendix B

matter. See Wyatt v. Terhune, 315 F.3d 1114 (9th Cir. 2003).
Second, and relatedly, the Court will also take notice of the
existence (but not the truth of) the Board’s documents as
they are matters of the public record. See City of Carmel-
By-The-Sea v. U.S. Dep’t of Transp., No. 92-cv-20002-SW,
1994 U.S. Dist. LEXIS 6823, 1994 WL 190839, at *4 (N.D.
Cal. May 12, 1994) (overruled on other grounds).

II. Fifth Amendment Takings Claims

The Takings Clause of the Fifth A mendment

provides that private property cannot “be taken for
public use, without just compensation.” “The Clause is
made applicable to the States through the Fourteenth
Amendment.” Murr v. Wisconsin, 582 U.S. 383, 392, 137
S. Ct. 1933, 198 L. Ed. 2d 497 (2017). Historically, courts
applied the Takings Clause to “ ‘direct appropriation’ of
property . . . or the functional equivalent of a ‘practical
ouster of [the owner’s] possession.’” Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.
Ct. 2886, 120 L. Ed. 2d 798 (1992) (citations omitted).
Takings jurisprudence expanded beyond these confines
to include “regulatory takings,” where governmental
regulation of private property was “so onerous that its
effect is tantamount to a direct appropriation or ouster.”
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005),
125 S. Ct. 2074, 161 L. Ed. 2d 876.

A tripartite system emerged for the assessment of

regulatory takings. First, a regulation that requires a
property owner to suffer a permanent physical occupation,
regardless of the size of the intrusion, warrants
 12a

Appendix B

compensation. See Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 441, 102 S. Ct. 3164, 73 L. Ed.
2d 868 (1982). Second, a property owner who is deprived
of “all economically beneficial uses” of his property has
suffered a taking. Lucas, 505 U.S. at 1019. Third, the
court engages in a multi-factor “essentially ad hoc, factual
inquir[y]” set forth in Penn Central Transportation Co.
v. New York City to determine if a taking occurred. 438
U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978).

Collins alleges the County’s denial of his rezoning

application made it “legally and practically impossible . . .
to obtain any economically beneficial or productive use
of the Property.” Compl. ¶ 70. While Collins asserts this
denial is “best seen as a categorical taking,” the Court
analyzes his claim under both Lucas and Penn Central.
Opp’n at 8.

A. Plaintiff’s Takings Claim is Ripe

The County presents a threshold issue that Collins’

takings claim is not ripe because, despite attempts to
obtain authorization to build a home on the Property, he
hasn’t attempted to develop it according to its entitled
uses. Mot. at 8.

A regulatory takings claim is not ripe for adjudication

until the government regulatory entity has reached a
“final” decision. Suitum v. Tahoe Reg’l Plan. Agency, 520
U.S. 725, 735, 117 S. Ct. 1659, 137 L. Ed. 2d 980 (1997). The
ripeness inquiry previously required the plaintiff to show
the government entity reached a final decision and that the
 13a

Appendix B

property owner exhausted state law procedures to obtain

compensation. Williamson County Reg’l Plan. Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 186-94, 105
S. Ct. 3108, 87 L. Ed. 2d 126 (1985). The Supreme Court
excised the latter state exhaustion requirement, holding
that a property owner may assert a Fifth Amendment
claim at the time of the taking without the need to pursue
subsequent state action. Knick v. Township of Scott, 139
S. Ct. 2162, 2177, 204 L. Ed. 2d 558 (2019). However,
the finality requirement remained intact, requiring
plaintiffs to show “there [is] no question . . . about how
the ‘regulations at issue apply to the particular land in
question.’” Pakdel v. City & County of San Francisco, 141
S. Ct. 2226, 2230, 210 L. Ed. 2d 617 (2021) (quoting Suitum,
520 U.S. at 739). This leaves a “relatively modest” finality
requirement that assesses whether the government has
committed to a position that causes actual, as opposed to
hypothetical, harm to the plaintiff. Pakdel, 141 S. Ct. at
2230.

The County argues that Collins’ takings claim is not

ripe because he hasn’t attempted to develop the Property
according to its “entitled uses.” Mot. at 8. As presently
zoned, the Property permits the development of “resource
dependent education and scientific research facilities,
low intensity day use recreation uses, and restoration
and management programs for physical resources.” Pl.’s
Suppl., Ex. 9 at 3. According to the County, Collins’ failure
to explore such alternative development options precludes
a finding of a “final and authoritative determination of
the type and intensity of development” permitted on
the Property. Reply at 3 (quoting Kinzli v. City of Santa
 14a

Appendix B

Cruz, 818 F.2d 1449, 1453 (9th Cir. 1987)). However, the
Kinzli court affirmed the claim was not ripe, in part,
because the plaintiffs didn’t submit a development plan
or apply for a land use permit at all. 818 F.2d at 1453.
Several recent cases where the court found the plaintiff’s
claims to be unripe follow this general distinction. See e.g.,
Ralston v. County of San Mateo, No. 21-cv-01880-EMC,
2021 U.S. Dist. LEXIS 161988, 2021 WL 3810269, at *9
(N.D. Cal. Aug. 26, 2021) (dismissing plaintiffs’ case as
unripe because they did not apply for required coastal
development permit); Mendelson v. San Mateo Cnty., No.
20-cv-05696-AGT, 2023 U.S. Dist. LEXIS 38008, 2023 WL
2396328, at *3 (N.D. Cal. Mar. 7, 2023).

The Board’s denial of Collins’ request to rezone his

Property satisfies the “de facto finality” requirement set
forth in Pakdel. 141 S. Ct. at 2230. Unlike the plaintiffs in
Kinzli, Collins has submitted applications to the requisite
governmental body, and received final adjudication. Based
on the Board’s Resolution, it is clear that Collins cannot
develop a single-family home on the Property based on
the RC(CZ) zoning. See Pl.’s Suppl., Ex. 9 at 3. This is a
final decision because no avenues of appeal exist. As to
the County’s claim regarding the Property’s allowed uses,
the Court does not believe the ripeness doctrine requires
“a landowner to submit applications for their own sake,”
particularly for land uses they do not desire. Palazzolo
v. Rhode Island, 533 U.S. 606, 622, 121 S. Ct. 2448, 150
L. Ed. 2d 592 (2001). Therefore, Collins’ takings claim is
ripe for adjudication.
 15a

Appendix B

B. Lucas Claim

As noted above, “when the owner of real property has

been called upon to sacrifice all economically beneficial
uses in the name of the common good, that is, to leave
his property economically idle, he has suffered a taking.”
Lucas, 505 U.S. at 1019. “[T]he complete elimination of a
property’s value is the determinative factor.” Lingle, 544
U.S. at 539. As such, a Lucas taking is reserved for the
“extraordinary case.” Tahoe-Sierra Pres. Council, Inc.
v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 303, 122 S. Ct.
1465, 152 L. Ed. 2d 517 (2002); see also Lingle, 544 U.S.
at 538 (describing Lucas claims as a “relatively narrow”
category of regulatory takings challenges).

Collins claims the County effectuated a Lucas

taking by denying his rezoning request “to prevent
any development . . . and preserve [the Property] as an
open space in perpetuity for the public.” Compl. ¶ 66.
However, Collins overstates this position. The RC(CZ)
zoning designation permits some development, including
“educational and scientific research facilities uses, and low
intensity day use recreation uses.” Opp’n at 8. Despite this,
Collins alleges these uses are unlikely to generate income
because the size and characteristics of the Property are
unsuited for use by academic or conservation groups. Id.
at 11.

Collins relies exclusively on the opinions of his expert,

Jeff Froke, to support the claim that the Property has no
economically viable uses. Pl.’s Suppl. at 4. On summary
judgment, the Court draws all reasonable factual
 16a

Appendix B

inferences in favor of Collins. See Anderson, 477 U.S.

at 255. However, the nonmoving party cannot establish
the basis to deny a motion for summary judgment by
proffering conclusory opinions from an expert. See,
e.g., Soremekun v. Thriffty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007) (“Conclusory, speculative testimony
in affidavits and moving papers is insufficient to raise
genuine issues of fact to defeat summary judgment.”);
San Francisco Baykeeper v. City of Sunnyvale, 627 F.
Supp. 3d 1102, 1128 (N.D. Cal. 2022) (noting defendants’
expert’s “conclusory statements . . . is insufficient to raise
a triable issue of fact”).

Here, Froke’s report is replete with the same

conclusory claims found throughout the pleadings and
opposition papers. Critical to Collins’ Lucas claim is
Froke’s conclusion that “[i]t is unreasonable to expect
development of any of the A llowed Uses to yield
revenue in excess of costs.” Pl.’s Suppl., Ex. B at 1. The
support for this claim is at best conclusory, and at worst
illusory. Turning to the analysis, Froke lists various
cost deductions associated with running a nature center
or scientific field station. For the nature center, Froke
states a “conservative estimate of cost would amount to
~ $751,000” based on an itemized list of expenses. Id. at
6. However, Froke fails to supply any support or rationale
underlying how each of the expenses was calculated. For
instance, he broadly lists “Nature Center building” at
$210,000, but fails to explain what this cost pertains to
(e.g., costs associated with constructing the structure) or
whether it is a recurring expense (e.g., maintaining the
structure) or both. Id.
 17a

Appendix B

Froke’s field station cost analysis fares no better.

Froke estimates the total cost as $856,000 simply by
adding $105,000 to the nature center costs. Id. at 9. As with
the nature center expenses, Froke fails to provide any
explanation as to how he arrived at such figures or even
how each expense contributes to the additional $105,000.
Moreover, Froke fails to provide any concrete basis for
his conclusion that environmental groups or academic
institutions would not be interested in the Property.

Perhaps most damaging to Froke’s conclusions

is the complete lack of any revenue projections. The
Court strains to understand how Froke can assert that
development of the Property according to its allowed uses
won’t produce sufficient revenue without any mention of
said revenue. As such, Froke’s conclusory opinions fail
to create a triable issue of fact concerning the economic
viability of Collins’ Property. Because the Lucas claim is
entirely reliant on Froke’s conclusions, Collins has failed
to raise an issue of material fact that he has been deprived
of “all economically beneficial uses” of his Property.
Therefore, the County is entitled to summary judgment
on Collins’ Lucas claim.

C. Penn Central Claim

In the alternative, Collins alleges the rezoning denial

constitutes a taking under the Penn Central factors.
Compl. ¶ 72. Under Penn Central, courts assess three
factors: (1) “[t]he economic impact of the regulation on
the claimant,” (2) “the extent to which the regulation has
interfered with distinct investment-backed expectations,”
 18a

Appendix B

and (3) “the character of the governmental action.” Penn

Cent., 438 U.S. at 124. “The first and second factors are
the primary factors.” Bridge Aina Le’a, LLC v. Land Use
Comm’n, 950 F.3d 610, 630 (9th Cir. 2020). Collins fails to
proffer sufficient evidence for any of these factors.

1. Economic Impact

The economic impact of a regulation “compare[s]

the value that has been taken from the property with
the value that remains in the property.” Colony Cove
Properties, LLC v. City of Carson, 888 F.3d 445, 450 (9th
Cir. 2018) (quoting Keystone Bituminous Coal Ass’n v.
DeBenedictis, 480 U.S. 470, 497, 107 S. Ct. 1232, 94 L.
Ed. 2d 472 (1987)). To do so, courts focus “both on the
character of the action and on the nature and extent of the
interference with rights in the parcel as a whole.” Penn
Cent., 438 U.S. at 130-31. “[W]here an owner possesses
a full ‘bundle’ of property rights, the destruction of
one ‘strand’ of the bundle is not a taking, because the
aggregate must be viewed in its entirety.” Andrus v.
Allard, 444 U.S. 51, 65-66, 100 S. Ct. 318, 62 L. Ed. 2d 210
(1979). Even the denial of a property’s most profitable use
is not dispositive of a taking. Id. at 66; see also Killgore v.
City of S. El Monte, No. 19-cv-00442-SVW (JEM), 2020
U.S. Dist. LEXIS 133110, 2020 WL 4258584, at *6 (C.D.
Cal. Apr. 24, 2020) (finding plaintiff failed to satisfy the
economic impact prong because the city’s revocation of
a permit to operate a massage parlor didn’t prevent the
plaintiff from other uses of the property).
 19a

Appendix B

Collins alleges the Property suffered a 96% reduction

in value after the Board’s decision. Pl.’s Suppl. at 6. Collins
supports this conclusion through the comparison of two
appraisal reports. The first report appraises the Property
as an undeveloped parcel at $55,000. See ECF 58, Ex. K
at 3. Whereas the second report appraises the Property at
$1,510,000 based on the condition that the land was rezoned
to allow development. See ECF 58, Ex. L at 3. However,
such appraisals are flawed because Plaintiff has failed to
incorporate full consideration of the “value that remains
in the property.” Colony Cove, 888 F.3d at 451 (emphasis
added). Instead, Collins has conceived a scenario where
the Property lies vacant, despite the fact the RC(CZ)
zoning designation allows some forms of development. As
noted in the preceding section, Collins failed to expound
on the economic potential of the Property’s allowed uses.
As such, Collins has failed to present sufficient evidence
to create a triable issue of fact as to the economic impact
of the County’s rezoning denial.

2. Investment-Backed Expectations

The second Penn Central factor considers “the extent

to which the regulation has interfered with distinct
investment-backed expectations.” Penn Cent., 438 U.S.
at 124. “To form the basis for a taking claim, a purported
distinct investment-backed expectation must be objectively
reasonable.” Colony Cove, 888 F.3d at 452. A property
owner’s “unilateral expectation[s]” or “abstract needs” are
not reasonable, and thus “cannot form the basis of a claim
that the government has interfered with property rights.”
Bridge Aina Le’a, 950 F.3d at 634 (quoting Ruckelshaus
 20a

Appendix B

v. Monsanto Co., 467 U.S. 986, 1005, 104 S. Ct. 2862, 81 L.

Ed. 2d 815 (1984)); see also Guggenheim v. City of Goleta,
638 F.3d 1111, 1120 (9th Cir. 2010) (noting this expectation
“implies reasonable probability, like expecting rent to be
paid, not starry eyed hope of winning the jackpot if the
law changes”).

In this case, Collins’ hopes to rezone the Property

more closely resemble assumptions, as opposed to
expectations. To start, “[u]nder California law, there
is no right to any particular or anticipated zoning.”
Tyson v. City of Sunnyvale, 920 F. Supp. 1054, 1060
(N.D. Cal. 1996). When Collins purchased the Property,
he knew it was subject to the more-restrictive RC(CZ)
zoning designation. Pl.’s Suppl., Ex. H at 23:16-18. In
spite of this, Collins claims the surrounding properties
containing residential developments, as well as the CAR
LUP policy stating “[t]he BSI property may be developed
for residential use” contributed to his expectations. Pl.’s
Suppl. at 6. Beyond the permissive phrasing of the policy,
Collins’ references to surrounding properties is merely
a unilateral assumption that his Property will also
allow residential development. Even if it was reasonable
to conclude the other properties engendered some
expectation, Collins fails to proffer evidence that any of
these properties were also once subject to the same or
similar restrictive zoning requirements.

The closest Collins comes to a reasonable expectation

are the recommendations to approve the rezone issued by
County planning staff. However, any such expectation is
quickly dispelled by the applicable regulatory backdrop
 21a

Appendix B

and uncertain nature of the political process. See Evans

Creek, LLC v. City of Reno, No. 21-16620, 2022 U.S. App.
LEXIS 29816, 2022 WL 14955145, at *2 (9th Cir. Oct. 26,
2022) (noting the city’s discretion to annex the property
under Nevada law cuts against the plaintiff’s economic
expectations). For one, the planning staff are not the final
decision-makers, nor has Collins presented evidence that
the Board is compelled to follow their recommendations.
Moreover, the planning staff’s recommendation did
not necessarily reflect the opinions of the Planning
Commission, which “adopted a resolution recommending
that the Board of Supervisors not adopt the ordinance
to rezone the property” from RC(CZ) to Watershed
and Scenic Conservation. Mot., Ex. D at 3. Given the
multiple levels of uncertainty inherent in the rezoning and
construction process, no objectively reasonable person
would have believed they had a reasonable probability of
obtaining Collins’ desired outcome. Therefore, Collins fails
to present sufficient evidence supporting his investment-
backed expectations claim under Penn Central’s second
prong.

3. Character of Government Action

Penn Central lastly instructs that “[a] ‘taking’ may

more readily be found when the interference with property
can be characterized as a physical invasion by government
than when interference arises from some public program
adjusting the benefits and burdens of economic life to
promote the common good.” Colony Cove, 888 F.3d at
454 (quoting Penn Cent.,438 U.S. at 124). There is no
physical invasion by the County in this case. Instead, the
 22a

Appendix B

alleged taking centers on the County’s denial of Collins’

rezoning request. The Supreme Court has upheld “land-
use regulations that destroyed or adversely affected
recognized real property interests” when, as here, the
relevant government entity “reasonably concluded that
‘the health, safety, morals, or general welfare’ would be
promoted by prohibiting particular contemplated uses
of land.” Penn Cent., 438 U.S. at 125. As discussed in
greater detail below, the Board conducted public hearings,
considered input from the community and reached a
determination that the rezone was not within the policies
set forth in the CAR LUP. The third factor does not weigh
in favor of Collins’ claim.

In sum, Collins has failed to raise triable issues of

fact with respect to each of the Penn Central factors. It
follows that Collins has failed to support either his Lucas
or Penn Central claim. Accordingly, the County is entitled
to summary judgment on Collins’ federal Takings Clause
claim.

III. Due Process

The Due Process Clause of the Fourteenth Amendment

protects against the deprivation “of life, liberty, or
property, without due process of law.” U.S. Const., amend.
XIV, § 1. “The touchstone of due process is protection of
the individual against arbitrary action of government.”
Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 41
L. Ed. 2d 935 (1974). The Due Process Clause has both
procedural and substantive components - the latter of
which “[bars] certain government actions regardless of
 23a

Appendix B

the fairness of the procedures used to implement them.”

County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.
Ct. 1708, 140 L. Ed. 2d 1043 (1998).

Collins alleges the County violated his right to

substantive due process by arbitrarily using its regulatory
power to deny his rezoning request. Compl. ¶ 81.

A. Preemption

The County asserts a threshold challenge to Collins

due process claim, alleging it is preempted by his takings
claim. “[T]he Fifth Amendment does not invariably
preempt a claim that land use action lacks any substantial
relation to the public health, safety, or general welfare.”
Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d
851, 856 (9th Cir. 2007). Instead, the Fifth Amendment
precludes due process claims that fall within the “three
basic categories” governing takings jurisprudence -
(1) physical invasion of property, (2) deprivation of all
economically beneficial use, or (3)the Penn Central
analysis. See id. at 855. The Ninth Circuit illustrates this
distinction in Colony Cove. 640 F.3d at 948. The Colony
Cove plaintiff alleged the city mobile home rent control
ordinance violated both the Due Process Clause and
Takings Clause. Id. at 954. Its due process claims were
couched in terms that the ordinance not only deprived
it of a fair return on investment, but also that the rental
review board acted arbitrarily in applying the ordinance.
Id. at 960. The Ninth Circuit held the former theory to
be “subsumed by the Takings Clause,” whereas the latter
was not. Id.; see also Shanks v. Dressel, 540 F.3d 1082,
 24a

Appendix B

1087 (9th Cir. 2008) (concluding the plaintiffs’ claim was

not preempted because it sought the invalidation of an
allegedly arbitrary land use action).

As in Colony Cove, Collins has presented separately

distinct theories for his due process and takings claims.
On one hand, Collins’ takings claim alleges the County’s
actions deprived him of economically beneficial or
productive use of his Property. Compl. ¶ 70. On the
other hand, the locus of Collins’ due process claim lies in
the allegedly arbitrary acts of regulatory power by the
Board. See id. ¶ 81. This fine distinction is laid bare by
the underlying purposes of these rights. The aim of the
Takings Clause is “to secure compensation in the event
of otherwise proper interference amounting to a taking.”
Lingle, 544 U.S. at 537 (emphasis in original). The Due
Process Clause, however, is concerned with vindicating
the rights of individuals harmed by government actions of
which can have no legitimate purpose. See North Pacifica
LLC v. City of Pacifica, 526 F.3d 478, 485 (9th Cir. 2008).
As such, due process violations cannot be rectified by the
Takings Clause because “[n]o amount of compensation can
authorize such action.” Lingle, 544 U.S. at 543.

As noted above, Collins’ due process claim is grounded

in the allegedly improper decision by the Board to
create the DeAmaral Preserve at the expense of Collins’
Property. Therefore, the Takings Clause is an improper
vehicle to redress such an allegedly impermissible act
of municipal tyranny because the Court would be tacitly
endorsing such practices. Inasmuch as this claim lies in
the arbitrary exercise of governmental power, Collins’
due process claim is not preempted.
 25a

Appendix B

B. Due Process Analysis

The due process clause does not broadly prohibit every

governmental deprivation of property. See Halverson v.
Skagit Cnty., 42 F.3d 1257, 1260 (9th Cir. 1994); see also
Lakeview Dev. Corp. v. City of South Lake Tahoe, 915
F.2d 1290, 1295 (9th Cir. 1990) (“It is well established
that there is no federal Constitutional right to be free
from changes in land use laws.”). In fact, substantive due
process protection is often reserved for the vindication
of fundamental rights, such as those related to bodily
integrity, family, procreation, and marriage. See Albright
v. Oliver, 510 U.S. 266, 272, 114 S. Ct. 807, 127 L. Ed.
2d 114 (1994). In cases like this that do not involve such
fundamental rights, courts “do not require that the
government’s action actually advance its stated purposes,
but merely look to see whether the government could have
had a legitimate reason for acting as it did.” Halverson,
42 F.3d at 1262.

The courts have long upheld zoning restrictions as

reasonable extensions of the state’s police powers. See
e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365,
390, 47 S. Ct. 114, 71 L. Ed. 303, 4 Ohio Law Abs. 816
(1926). Nevertheless, substantive due process ensures that
property owners have the “right to be free of arbitrary or
irrational zoning actions.” Village of Arlington Heights
v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263, 97 S. Ct.
555, 50 L. Ed. 2d 450 (1977). However, the standard for
determining if governmental action is constitutionally
arbitrary is “exceedingly high.” Shanks, 540 F.3d at 1088.
This is because a due process claim lies when a “land use
 26a

Appendix B

action lacks any substantial relation to the public health,

safety, or general welfare.” North Pacifica, 526 F.3d at
484. Thus, “[t]he irreducible minimum of a substantive
due process claim challenging land use regulation is
failure to advance any governmental purpose.” Id.; see
also Halverson, 42 F.3d at 1262 (explaining this “heavy
burden” requires the plaintiff demonstrate that the
government “could have had no legitimate reason for its
decision”) (emphasis omitted).

The County has submitted sufficient evidence showing

the denial of Collins’ rezoning application was rationally
related to legitimate government interests. By law, zoning
within the Carmel area must be consistent with CAR
LUP. Opp’n, Ex. 6 at 12:17-20; see also Cal. Gov’t Code
§ 65860. As part of the former BSI property, CAR LUP
includes certain restrictions covering Collins’ Property.
Among these requirements is that “[t]he upper steeper
portion shall remain in open space.” Pl.’s Suppl., Ex. D at
9. Similarly, the CAR LUP policy concerning the RC(CZ)
zoning designation prohibits development that would
threaten rare and endangered plant and animal species.
The Board’s Resolution found Collins’ rezoning request
ran afoul of both of provisions of CAR LUP. Pl.’s Suppl.,
Ex. I. The Board’s findings were supported by the report
prepared by planning staff. In particular, the report
indicated that “the entire property contains slopes that
exceed 30 percent slopes and has a high erosion hazard.”
Pl.’s Suppl., Ex. D at 16. That same report also notes the
potential presence of “Oak savanna, Central Maritime
Chaparral, Monterey Pine, and Smith’s Blue butterfly” on
Collins’ Property. Id. at 15. These concerns were further
 27a

Appendix B

voiced by several members of the local community during

the March 8, 2022, Board hearing. See, Pl.’s Suppl., Ex.
H at 16:10-27:15. Such neighborly opposition “is also a
legitimate factor in legislative decisionmaking.” Nelson
v. City of Selma, 881 F.2d 836, 839 (9th Cir. 1989)

Collins’ opposition, however, fails to shoulder the

heavy burden of demonstrating a lack of any legitimate
governmental purpose. Instead, much of Collins’ claims
resemble a “run of the mill dispute between a developer
and a planning agency.” Tyson, 920 F. Supp. at 1064. For
instance, Collins’ expert, Joel Panzer, is simply “unaware
of an outright denial” based on the presence of steep slopes
or sensitive areas, not that they are illegitimate reasons
for the County’s decision. Pl.’s Suppl., Ex. J at 3-4.

Perhaps recognizing the challenge of this burden,

Collins alleges the County’s reasoning was mere pretext
disguising the Board’s true intention of creating the
DeAmaral Preserve. Collins points to Supervisor Mary
Adams’ remarks during the 2022 Board hearing. Opp’n
at 18. However, the motives of such officials are generally
irrelevant to an inquiry concerning the reasonableness
of their decisions. Tyson, 920 F. Supp. at 1064. Even
assuming they were relevant, Collins fails to allege
any facts demonstrating a personal motive or financial
interest, as opposed to a mere policy disagreement. See
Arroyo Vista Partners v. County of Santa Barbara, 732
F. Supp. 1046, 1054 (C.D. Cal. 1990). On a more practical
level, the Board requires majority approval and Collins
also fails to allege that other Supervisors were tainted by
Adams’ supposed improper motive, let alone were aware
 28a

Appendix B

of it. Accordingly, the Board’s denial of Collins’ rezoning

application did not violate his due process rights. As
such, the Court grants the County’s motion for summary
judgment with respect to Collins’ claim under the Due
Process Clause.

IV. Equal Protection Clause

Collins alleges the County violated the Equal

Protection Clause by preventing the residential rezone,
despite similarly situated developments surrounding the
Property. Compl. ¶ 78.

The Equal Protection Clause guarantees that “[n]o

state shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” U.S. Const. amend. XIV,
§ 1. Equal protection claims often concern governmental
classifications that disparately affect certain groups of
citizens more than others. Engquist v. Oregon Dep’t of
Agric., 553 U.S. 591, 601, 128 S. Ct. 2146, 170 L. Ed. 2d
975 (2008). However, an equal protection claim may also
apply if an individual “has been irrationally singled out as
a so-called ‘class of one.’” Id. To prevail on his class of one
claim, Plaintiff must show the Board: (1) intentionally, (2)
treated Collins differently than other similarly situated
property owners, (3) without a rational basis. Gerhart v.
Lake County, 637 F.3d 1013, 1022 (9th Cir. 2011).

A. Disparate Treatment

The equal protection analysis requires a basis of

comparison by which to assess whether the government’s
 29a

Appendix B

application of the law was improper. To do so, courts will

categorize the party being discriminated against and
assess how that party compares to “similarly situated”
individuals. Squaw Valley Dev. Co. v. Goldberg, 375 F.3d
936, 945 (9th Cir. 2004). In Squaw Valley, the Ninth
Circuit noted that plaintiff failed to present any evidence
of a comparably sized discharger with similar levels of
activity or regulatory scrutiny. Id. However, a “similarly
situated” person need not be identical to the plaintiff, but
must be similar “in all relevant respects.” Ariz. Dream Act
Coal. v. Brewer, 855 F.3d 957, 966 (9th Cir. 2017) (quoting
Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120
L. Ed. 2d 1 (1992)).

Without such comparisons, the court would have no

basis for determining if the plaintiff was intentionally
singled out. See Gerhart, 637 F.3d at 1022. In Gerhart,
the plaintiff alleged that county commissioners violated
the Equal Protection Clause by denying him a permit to
construct an access road and approach to his property. Id.
The Ninth Circuit found plaintiff “presented considerable
evidence” of disparate treatment based on testimony from
at least ten other property owners who built approaches
to the same road. Id. Importantly, the Gerhart court
noted the county commissioners were aware of these
constructions yet didn’t require approach permits. Id.

Here, Collins’ Equal Protection claim reads more as

a critique of the Board’s decisionmaking, as opposed to
the required comparative analysis. Collins exhaustively
details the various purported f laws in the Board’s
reasoning without any reference to a comparable situation.
 30a

Appendix B

The only reference is that Collins’ Property “is completely

surrounded by homes or properties surrounded by
homes.” Opp’n at 15. As in Squaw Valley, Collins fails
to provide any identifying information regarding these
properties. Most importantly, Collins doesn’t specify
the zoning information, history of rezoning (if any) or
treatment by the relevant authorities. In doing so, Collins
puts the cart before the horse and deprives the Court of
the necessary context by which to adjudge the Board’s
allegedly pretextual reasoning. As a result, Collins’ “class-
of-one” equal protection claim premised on disparate
treatment fails. See SmileDirectClub, LLC v. Tippins, 31
F.4th 1110, 1123 (9th Cir. 2022) (affirming district court’s
dismissal of plaintiffs’ class-of-one claim for failure to
establish they were similarly situated to other licensed
dentists and orthodontists in California). The Court grants
the County’s motion for summary judgment on Collins’
Equal Protection Clause claim.

CONCLUSION

Based on the foregoing, the County’s motion for

summary judgment as to all of Collins’ causes of action
is GRANTED.

IT IS SO ORDERED.

/s/
NATHANAEL M. COUSINS
United States Magistrate Judge

Dated: August 18, 2023

 31a

Appendix
APPENDIX C — C
RESOLUTION BEFORE
THE BOARD OF SUPERVISORS IN AND FOR
THE COUNTY OF MONTEREY, STATE OF
CALIFORNIA, FILED APRIL 19, 2022

BEFORE THE BOARD OF SUPERVISORS

IN AND FOR THE COUNTY OF MONTEREY,
STATE OF CALIFORNIA

In the matter of the application of:

COLLINS (PLN130339)
RESOLUTION NO. 22-125

Resolution by the Monterey County Board of Supervisors:

1) Find the denial of the project statutorily

exempt per Section 21080(b)(5) of the Public
Resources Code and Section 15270(a) of the
CEQA Guidelines; and

2) Deny the applicant’s request to amend the Local

Coastal Program to rezone the property from
Resource Conservation [RC(CZ)] to Watershed
and Scenic Conservation, 40 acres per unit,
Design Control, Special Treatment, Coastal Zone
[WSC/40-D-SpTr(CZ)].

[PLN130339, James G. Collins, 83 Mount Devon Road,

Carmel, Carmel Area Land Use Plan (APN: 241-021-
007-000)]

I. RECITALS

WHEREAS, on November 21, 2021, James G. Collins and

Sook Collins, hereinafter referred to as the “Applicant,”
 32a

Appendix C

made an application to rezone a 21-acre parcel located

at 83 Mount Devon Road, Carmel (Assessor’s Parcel
Number: 241-021-007-000) (hereafter “the subject
property”) from Resource Conservation, Coastal Zone
[RC(CZ)] to Watershed and Scenic Conservation, 40 acres
per unit, Design Control, Special Treatment, Coastal
Zone [WSC/40-D-SpTr(CZ)], (hereafter referred to as
“Rezone”);

WHEREAS, in 1983, the County adopted the Carmel

Area Land Use Plan, which is a part of the County’s
certified Local Coastal Program under the Coastal Act.
At that time, the property was subject to the Conservation
and Scenic Easement and the Carmel Area Land Use Plan
designated the property “Resource Conservation—Forest
& Upland Habitat.” The Carmel Area Land Use Plan
notes that the designation was applied to the “Point Lobos
Reserve and the DeAmaral Preserve.” The County zoned
the property Resource Conservation, Coastal Zone (RC
(CZ)) in keeping with the Land Use Plan designation. The
purpose of RC zoning is “to provide a district to protect,
preserve, enhance, and restore sensitive resource areas
in the County of Monterey.” (Monterey County Code,
Title 20 (coastal zoning), Section 20.36.010.) The Resource
Conservation Zoning District of Title 20 does not allow
residential development (Monterey County Code, Title
20, Chapter 20.36);

WHEREAS, in April 2021, the U.S. District 4 Court of

California found that the subject property’s conservation
and scenic easement was effectively terminated in 2019 as
a result of meeting the conditions present for unilateral
termination under Article 7 of the Deed. Article 7 of
 33a

Appendix C

the Easement Deed allows the Grantor to terminate

the Easement under specific conditions. By its terms,
the Easement allows the Foundation, or its successors
in interest—such as James Collins—to terminate the
Easement when California or Monterey County passes
conservation legislation which restricts, or would by
agreement restrict, the use of the Property for “scenic
and recreational uses or for the use of natural resources
or for the production of food and fiber.” The Court found
that the rezoning from Agriculture/Residential, which
allowed two residential units, to Resource Conservation,
which does not allow residential units, restricts the use
of the Property, and therefore triggers the condition in
Article 7 of the Easement deed required for unilateral
termination. As a result of the land use and zoning
designations in the Carmel Land Use Plan that restrict
the use of the property for scenic and recreational uses,
the conservation and scenic easement is no longer in effect;

WHEREAS, on March 08, 2022, the Board of Supervisors,

at a duly noticed public hearing adopted a resolution of
intent to deny the proposed Rezone by a vote of 3 ayes and
2 noes and continued the hearing to a date uncertain with
direction to Staff to return with a resolution containing
findings for denial of the Rezone;

WHEREAS, on April 19, 2022, the Board of Supervisors

held a public hearing to consider taking action on the
Rezone;

WHEREAS, the Board of Supervisors reference to the

following facts and findings with respect to the Rezone:
 34a

Appendix C

1. The Carmel Area Land Use Plan (CAR LUP)

delineates the subject property as part of the
Behavioral Science Institute lands as shown
on Figure 2—Special Treatment Areas of the
Land Use Plan. Policy 4.4.3.E.6 of the CAR LUP
provides that “the BSI lands may be developed
for residential use. A maximum of 25 units may
be approved; all units shall be sited outside of the
view of Highway 1… The upper steeper portion
shall remain in open space.” The entire property
contains slopes exceeding 30%, has the highest
elevation of all BSI properties, and is visible from
Highway 1 and Point Lobos, and therefore the
Rezone is inconsistent with the BSI development
standards.

2. The CAR LUP designates the property as

“Resource Conservation—Forest & Upland
Habitat.” Pursuant to Chapter 4.5.A of the
CAR LUP, the Resource Conservation Forest
and Upland Habitat designation is applied
to ESHA and open space areas set aside for
resource preservation. Implementation of the
land use designation in April 1983 resulted
in the rezoning the subject property from
Agriculture/Residential, Mobile Home Exclusion,
20-acre minimum building site [“K-V-B-5 20-
acre min.”] to Resource Conservation, Coastal
Zone [“RC (CZ”]. The purpose of the RC zoning
district is “to provide a district to protect,
preserve, enhance, and restore sensitive resource
areas in the County of Monterey.” (Monterey
County Code, Title 20 (Coastal Zoning), Section
 35a

Appendix C

20.36.010.) Additionally, Policy 4.4.3 of the CAR

LUP states, “[d]evelopment that would threaten
rare and endangered plant and animal species
in the Resource Conservation areas shall not be
allowed.” The property contains Environmentally
Sensitive Habitat Areas (“ESHA”) and special
status species, and therefore reasonably
foreseeable development resulting from the
Rezone (1 main residential unit) has the potential
to impact the sensitive resources.

3. Although the conservation easement has been

terminated, the Resource Conservation zoning
district is consistent with the original intent of
the easement and is consistent with requirement
of properties designated Forest and Upland
Habitat.

4. Public policy supports preservation of the subject

property, and no public policy reasons have been
advanced to support the proposed rezoning of the
property.

5. The Applicant knew or should have known

restrictions applicable to the property at the time
the property was purchased on February 8, 1994.
Potential uses of the property consistent with the
CAR LUP and Zoning may be considered under
separate permitting.

6. The Applicant retains economically viable use of

the subject property in that the existing zoning,
 36a

Appendix C

Resource Conservation, allows for uses including

but not limited to resource dependent education
and scientific research facilities, low intensity
day use recreation uses, and restoration and
management programs for physical resources;

WHEREAS, pursuant to Appendix 13 of the Coastal

Implementation Plan, Local Coastal Program Amendments
which are denied by the Board of Supervisors are not
appealable to the California Coastal Commission, making
the Board of Supervisors decision final.

II. DECISION

NOW, THEREFORE, be it resolved, based on the above

findings, the written and documentary evidence, the staff
reports, oral testimony, and the administrative record as
a whole, that the Board of Supervisors does hereby:

1. Find that the denial of the proposed rezoning

is statutorily exempt under the California
Environmental Quality Act pursuant to Section
21080(b)(5) of the Public Resources Code and
Section 15270(a) of the CEQA Guidelines; and

2. Deny the request to amend the Local Coastal

Program to rezone a 21-acre parcel located
at 83 Mount Devon Road, Carmel (Assessor’s
Parcel Number: 241-021-007-000) from Resource
Conser vation, Coasta l Zone [RC(CZ)] to
Watershed and Scenic Conservation, 40 acres
per unit, Design Control, Special Treatment,
Coastal Zone [WSC/40-D- SpTr(CZ)]
 37a

Appendix C

PASSED AND ADOPTED on this 19th day of April 2022,

by roll call vote:

AYES: Supervisors Alejo, Lopez, Askew and Adams

NOES: None
ABSENT: Supervisor Phillips
(Government Code 54953)

I, Valerie Ralph, Clerk of the Board of Supervisors of the

County of Monterey, State of California, hereby certify
that the foregoing is a true copy of an original order of
said Board of Supervisors duly made and entered in the
minutes thereof of Minute Book 82 for the meeting April
19, 2022.

Dated: April 21, 2021

File ID: RES 22-078
Agenda Item No.: 40

Valerie Ralph, Clerk of the Board of Supervisors

County of Monterey, State of California

/s/
Julian Lorenzana, Deputy
 38a

APPENDIX D —Appendix
ORDER D
OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT, FILED JULY 30, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-16153

JAMES G. COLLINS,

Plaintiff-Appellant,

v.

COUNTY OF MONTEREY,
A GOVERNMENT ENTITY,

Defendant-Appellee.

D.C. No. 5:22-cv-02560-NC

Northern District of California, San Jose

ORDER

Before: SCHROEDER, GOULD, and R. NELSON,

Circuit Judges.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P.
35. The petition for rehearing en banc, Docket No. 35, is
DENIED.
 39a

APPENDIX EAppendix E
— JUDGMENT OF THE
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF CALIFORNIA,
FILED AUGUST 18, 2023

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case No. 22-cv-02560-NC

JAMES G. COLLINS,

Plaintiff,

v.

COUNTY OF MONTEREY,

Defendant.

Filed August 18, 2023

JUDGMENT

On August 18, 2023, the Court granted Defendant

County of Monterey’s motion for summary judgment.
Accordingly, judgment is entered in favor of Defendant.
The Clerk shall close the file.

IT IS SO ORDERED.

Dated: August 18, 2023

/s/
NATHANAEL M. COUSINS
United States Magistrate Judge
 40a

Appendix
APPENDIX F
F — RELEVANT
CONSTITUTIONAL PROVISIONS

AMENDMENT V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put
in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.
 41a

Appendix F

AMENDMENT XIV SECTION 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside. No
state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.
 42a

Appendix
APPENDIX G
G — EXCERPTS
FROM CALUP AND MAP LU12B

CARMEL AREA LAND USE PLAN

LOCAL COASTAL PROGRAM

CERTIFIED APRIL 14, 1983
MONTEREY COUNTY, CALIFORNIA

UPDATE INDEX

CARMEL AREA LAND USE PLAN AMENDMENTS

As certified by the California Coastal Commission for

the following date, with final acceptance by the Board
of Supervisors:

1. January 22, 1985—AMEND TEXT—4.5.H—APN

009-131-20. Single Duplex on one lot in Carmel Woods
(PC-5162, Gump, 1-84). Resolution 87-267.

2. April 9, 1986—AMEND POLICY—2.4.4.B.8—Add

language to regulate wastewater runoff (PC-5433,
1-86). Resolution 87-267.

3. April 9, 1991—AMEND POLICY—2.2.5.2—and

MAP CHANGE—Change zoning designation from
MDR/2(24) to MDR/2(18). Reduce height in Carmel
Meadows from 24 to 18 feet (PC 6780, 1-89, 1-91).
Resolution 91-348 and 91-349, Ordinance 3546.

4. April 9, 1991—AMEND POLICY—2.2.5.2—and

MAP CHANGE—Change zoning designation from
MDR/2(24) to MDR/2(18). Reduce height in Carmel
 43a

Appendix G

Point from 24 to 18 feet (PC 7299, Gushman, 1-91).

Resolution 91-348 and 91-351.

5. June 13, 1991—AMEND POLICY—4.4.3.F. 1.a—and

CIP 20.146.120.C.1(a)(1). Allow expansion of visitor
serving facilities. (PC 7594, Mission Ranch, 2-91).
Resolution 91-348 and 91-352.

6. June 13, 1991—MAP CHANGE—APN 009-511-03,

fronting on and southerly of 15th and Dolores Streets—
AND AMEND POLICIES AND TEXT—4.4.3.F.1.c,
4.5.H and 4.6—AND AMEND CIP—20.146.120.1(a)
(3). Reduce number of residential units to 31 and
change zoning maps from MDR/6/SpTr to MDR/4/
SpTr (PC 7698, Mission Ranch, 2-91). Resolution 91-
348 and 91-353; Ordinance 3547.

7. February 16, 1994—MAP CHANGE—APN 241-021-

13—Fronting on and easterly of Spruce and Fern
Canyon Roads. Change land use designation from RC
to LDR (1.1 acre portion of property) and change the
CIP zoning maps on a 9.3 acre portion from RC/SpTr
and LDR/1/SpTr to Low Density Residential/3.5/
SpTr (PC 92-243, Garren, 1-94). Resolution 94-122,
Ordinance 3755.

8. March 9, 1995—AMEND POLICIES—2.2.5.2 AND

5.3.2.4—AMEND CIP SECTIONS—20.140.070.H
(now 20.70.120.H) and 20.146.130.E.5.e(3)(c)—MAP
CHANGE—Yankee Point area. Change zoning maps
to reduce height to 20 and 26 feet, depending on
location (PC 94134, 1-95). Ordinance 3805—April 18,
1995.
 44a

Appendix G

CARMEL AREA LAND USE PLAN

UPDATE INDEX #1
AMEND TEXT—4.5.H—APN 009-131-20
JANUARY 22, 1985

Medium-density residential development is the primary

use. The density for new subdivision is 2 units per acre,
except on the Mission Ranch property where a density
of 2-6 units per acre may be allowed subject to section
4.4.3.F.1 and Odello (162 units) subject to section 4.4.3.F.3.
Exception is also made for Block 6, Carmel Woods which
has historically been zoned Duplex Residential (R-2”). On
that block, one unbuilt lot of record existed as of August 8,
1984. That lot may be allowed a single duplex use. Re-use
of existing developed lots on that block shall comply with
the basic density requirements of this section. Minimum
parcel size will be determined upon application review.
This designation is applied to the City of Carmel vicinity
and to Carmel Meadows. Public/quasi-public uses (5.5. 1)
and densities of overnight accommodations currently in
operation are permitted.

CARMEL AREA LAND USE PLAN

UPDATE INDEX #2
AMEND POLICY 2.4.4.B.8
APRIL 9, 1986

Add language to regulate wastewater runoff

8. All new and/or expanding wastewater discharges into

the coastal waters of Monterey County shall require
a permit from the Health Department. Applicants
 45a

Appendix G

for such permits shall be required to submit, at a

minimum, the following information and studies:

a) Three years monitoring records identifying

the existing characteristics of the proposed
wastewater discharge. Particular areas of
concern include toxic chemicals, inorganic heavy
metals, bacteria, and other indicators prescribed
as threats to the health and safety of coastal
waters, or

b) Provide comprehensive projections of the proposed

wastewater discharges; both quantitative and
qualitative characteristics must be specifically
identified. Specific figures for the indicators
identified in a) must be included in the projections.

c) Provide complete information on levels of

treatment proposed at the treatment facility to
remove those indicators mentioned in a). This
information shall also include reliability and
efficiency data of the proposed treatment.

d) Provide a comprehensive monitoring plan for

testing of wastewater for indicators identified in
a).

e) Perform oceanographic studies to determine the

most suitable location and methods for discharge
into the ocean.

f) Perform tests of ocean waters at the proposed

discharge site and surrounding waters to
 46a

Appendix G

establish baseline or background levels of toxic

chemicals, heavy metals, bacteria and other water
quality indicators. These tests must be performed
no more than one year prior to submittal of the
proposal. Historical data may not be substituted
for this requirement.

g) Perform toxicity studies to determine the impacts

of the proposed wastewater discharges on marine
life, as well as on recreational uses of the coastal
waters.

h) Identify and analyze alternative methods of

wastewater disposal. This shall include hydro-
geologic studies of the applicant’s groundwater
basin to determine the water quality problems
in that area and if onsite disposal will have an
adverse impact on groundwater quality.

The data and results of requirements a) through

h) must be submitted to the County’s Chief
of Environmental Health for evaluation and
approval. A wastewater discharge permit shall be
issued only if the above information demonstrates
that the proposed wastewater discharge will
not degrade marine habitats; will not create
hazardous or dangerous conditions; and will
not produce levels of pollutants that exceed
any applicable state or federal water quality
standards.
 47a

Appendix G

CARMEL AREA LAND USE PLAN

UPDATE INDEX #3
AMEND POLICY 2.2.5.2
APRIL 9, 1991

2. In order to provide for more visually compatible

structures, the County’s existing height ordinance
for the Carmel Point area should be retained to limit
the maximum height of new structure along Scenic
Road to 24 feet from the natural grade. This height
limit shall also apply to Carmel Meadows, including
the Portola Corporation and Williams properties.
To ensure protection of the viewshed, the maximum
height of structures located in the Carmel Meadows
area, including the Portola Corporation and Williams
properties, shall be limited to 18 feet measured from
natural average grade.

CARMEL AREA LAND USE PLAN

UPDATE INDEX #4
AMEND POLICY 2.2.5.2
APRIL 9, 1991

2. In order to provide for more visually compatible

structures, the County’s existing height ordinance
for the Carmel Point area should be retained to limit
the maximum height of new structure along Scenic
Road to 24 feet from the natural grade. the height
limit in the Carmel Point Area should be limited to a
maximum height of 18 feet from the natural average
grade. This height limit shall also apply to Carmel
Meadows, including the Portola Corporation and
Williams properties. To ensure protection of the
 48a

Appendix G

viewshed, the maximum height of structures located

in the Carmel Meadows area, including the Portola
Corporation and Williams properties, shall be limited
to 18 feet measured from natural average grade.

CARMEL AREA LAND USE PLAN

UPDATE INDEX #5
AMEND POLICY 4.4.3.F.1.a
JUNE 13, 1991

a. The existing commercial/visitor serving facilities

(other than the dance hall), consisting of the 26 visitor
serving units, restaurant, tennis club, may be granted
a use permit which allows for the continued use, but
prohibits expansion or other uses, and for their full
refurbishment which shall be limited to painting
and internal remodeling without change in outer
structures, without enlargement of capacity, and
without expansion of present use. and caretaker’s unit,
may be allowed expansion to a maximum of 31 units
subject to securing a Coastal Development Permit
and meeting the goals and policies of the Carmel Area
Land Use Plan and Coastal Implementation Plan.

The total area of any new Mission Ranch visitor

serving unit as defined in Section 5.40.020.F of the
Monterey County Code, shall not exceed 500 square
feet.

A Historical Resources designation shall be added to

protect the important historic buildings.
 49a

Appendix G

CARMEL AREA LAND USE PLAN

UPDATE INDEX #6
AMEND POLICIES 4.4.3. F.1. c and 4.5 H
JUNE 13, 1991

Policy 4.4.3.F. 1. c:

c. If and when the dance hall and all other existing

commercial/visitor-serving uses on the property are
permanently abandoned, a clustered medium-density
(2-6 4 units per net developable acre not including
wetlands area, but not to exceed a maximum of 75
31 units) residential development, which may include
a restaurant and tennis club, may be allowed on the
site provided that such development conforms to
the policies of the plan, particularly the resource
protection policies for the protection of coastal
wetlands.

Conversion to residential use shall not be permitted

until an equal number of new equivalently-priced
visitor-serving units have been made available in the
unincorporated coastal zone of Monterey County. For
the purposes of this paragraph, “equivalently-priced
visitor-serving units” shall mean hotel or motel units
in a comparable price range, campground and RV
spaces, or similar accommodations. Findings that
such units have been made available shall be made by
the County, based upon substantial evidence, at the
time of submission of a permit application.
 50a

Appendix G

Policy 4.5.H:

H. Medium—Density Residential

Medium-density residential development is the primary

use. The density for new subdivision is 2 units per acre,
except on the Mission Ranch property where a density
of 2-6 4 units per acre may be allowed subject to section
4.4.3.F.1 and Odello (162 units) subject to section 4.4.3.F.3.
Exception is also made for Block 6, Carmel Woods which
has historically been zoned Duplex Residential (R-2”). On
that block, one unbuilt lot of record existed as of August 8,
1984. That lot may be allowed a single duplex use. Re-use
of existing developed lots on that block shall comply with
the basic density requirements of this section. Minimum
parcel size will be determined upon application review.
This designation is applied to the City of Carmel vicinity
and to Carmel Meadows. Public/quasi-public uses (5.5.1)
and densities of overnight accommodations currently in
operation are permitted.
 51a

Appendix G

CARMEL AREA LAND USE PLAN

UPDATE INDEX #6
AMEND POLICY 4.6 (CHART)
JUNE 13, 1991
Est.
Max
New
Density Res.
Approx. for New Dev.
Land Use Loca- Acreage Sub- # of
Category tion (Acres) division units
Watershed
and Scenic
Conservation
– below the Coastal 2,400 1 unit per 60
1,000 foot Hills and 40 acres
elevation ridges
contour east of
Highway 1
– above the 1,740 1 unit per 331
1,000 foot 80 acres
elevation
contour
– Palo 560 1 unit per 14
Corona 40 acres
Ranch
– Rancho 600 1 unit per 15
San Carlos 40 acres
Agricultural Odello 134 3 units/ac 162
Conservation property on 54 acres
 52a

Appendix G

Recreation Lower 343 Riley = 12 28

and Visitor-Area of units
Serving Point Hudson =
Commercial Lobos 16 units
Ranch
(“Flat-
lands”)
Low Density – Carmel 740 1 unit per 2182
Residential High- acre
lands
Medium – City of 656 2 units per 148
Density Carmel acre
Residential Vicinity
and
Carmel
Meadows3
– Mission 21 (gross) 2-6 4
Ranch units per net
developable acre
(75 31 max.)

ESTIMATED TOTAL 753 709 (units max.)4

NEW RESIDENTIAL
DEVELOPMENT:
 53a

Appendix G

CARMEL AREA LAND USE PLAN

UPDATE INDEX #7
MAP CHANGE—APN 241-021-13
FEBRUARY 16, 1994

[Map omitted]

CARMEL AREA LAND USE PLAN

UPDATE INDEX #8
AMEND POLICIES 2.2.5.2 AND 5.3.2.4
MARCH 9, 1995

Policy 2.2.5.2:

2. In order to provide for more visually compatible

structures, the height limit in the Carmel Point Area
should be limited to a maximum height of 18 feet from
the natural average grade. To ensure protection of the
viewshed, the maximum height of structures located
in the Carmel Meadows area, including the Portola
Corporation and Williams properties, shall be limited
to 18 feet measured from natural average grade.

To ensure that new development in the Yankee Point

area remains subordinate to the visual resources
of the area, and to ensure that visual access from
Highway 1, Yankee Point Drive, and Mal Paso Road
is protected, the height limit in the Yankee Point
area of Carmel Highlands-Riviera, for all properties
seaward of Yankee Point Drive, and for properties
with frontage along the east right of way line of
Yankee Point Drive that face such properties seaward
 54a

Appendix G

of Yankee Point Drive, shall be 20 feet. The height

limit for all other properties in the area shall be 26
feet.

In addition to such height limits, new development

shall be subject to design guidelines to be adopted
by the Planning Commission for the Yankee Point
area. Such guidelines shall affect the visibility and
design of structures in a manner so as to preserve
and protect, to the maximum extent feasible, public
visual resources and access described herein.

Policy 5.3.2.4:

4. Existing visual access from scenic viewing corridors

(e.g., Highway 1, Scenic Road, Spindrift Road, Yankee
Point Drive) and from major public viewpoints, and
future opportunities for visual access from the frontal
ridges east of Highway 1 should be permanently
protected as an important component of shoreline
access and public recreational use.
 55a

Appendix G

MONTEREY COUNTY, CALIFORNIA

CARMEL AREA LAND USE PLAN
LOCAL COASTAL PROGRAM

Approved by the Monterey County

Planning Commission March 25, 1981

Adopted by the Monterey County

Board of Supervisors October 19, 1982

Amended by the Monterey County

Board of Supervisors October 23, 1984

Certified by the California Coastal Commission*

April 14, 1983

Amended and Certified by the Coastal Commission

January 22, 1985

This document was prepared with financial assistance

from the Office of Coastal Zone Management, National
Oceanic and Atmospheric Administration, under the
provisions of the Federal Coastal Zone Management
Act of 1972 as amended, and from the California Coastal
Commission, under the provisions of the California
Coastal Act of 1976.

* Two small areas in Carmel Highlands were not

certified by the Coastal Commission. These are shown
on Figure 1A.

* * *
 56a

Appendix G

wetland area or established drainage patterns unless

it is to significantly improve the existing drainage.

5. Low-density residential development shall generally be

located in rural areas where an essentially residential
character exists—i.e., the Carmel Highlands-
Riviera. Vacant lots in this area should continue to
be developed to the extent that site and resource
protection constraints allow. Housing densities and
lot sizes shall be consistent with the ability of septic
systems to dispose of waste without contamination
of coastal streams or creation of hazards to public
health. Accordingly, with the exception of Behavioral
Science Institute property, the density and minimum
parcel size for new land divisions shall be one acre
unless waste disposal constraints dictate otherwise.

6. The BSI property may be developed for residential

use. A maximum of 25 units may be approved; all
units shall be sited outside of the view from Highway
1. These units may be used in conjunction with the
institutional use. The upper steeper portion shall
remain in open space.

7. Residential development is permitted on the portion

of the Rancho San Carlos within the Coastal Zone,
comprising approximately 600 acres, with the
allowable density for new subdivision to be based on
one unit per 40 acres.

8. Rural residential development is appropriate for

the “Flatlands” area, the lower area of Point Lobos
 57a

Appendix G

Ranch presently characterized by rural residential

use. New land divisions within this area shall result
in a maximum of 28 additional units permissible if
conversion of visitor serving commercial to residential
units is carried out pursuant to the provisions of
policy 4.4.3.F.4.C. Preference should also be given to
transferring 8 units of residential development for the
Riley holdings to the Flatlands pursuant to policies
2.2.4.10.b and 4.4.3.G.3. New development in this area
shall be located within the forest cover and shall not
be allowed on the open, scenic pasturelands.

9. Residential development of Point Lobos Ranch shall

only be considered within the context of an overall
development and management plan(s) for the entire
ranch that provide for recreation and visitor-serving
uses provided, however, that no individual owner shall
be prevented from making and proceeding with a
separate application for residential development, if
full notice is given to other owners of such proceeding
so that overall development and management may
be discussed during the consideration of any such
application.

Also required is residential (if any) clustering

and substantial open space available for on-site
recreational use by hotel patrons and the public and
to require protection of adjacent State Parks land.

10. To protect the rural character and scenic natural

resources of the coastal hills and ridges east of
Highway 1 designated as Watershed and Scenic
 58a

Appendix G

Conservation, parcels shall be retained in the largest

possible size. With the exception of the Sawyer
property and the frontal slopes of the Palo Corona
Ranch, the density for new land divisions shall be
1 unit per 40 acres below the 1,000-foot elevation
contour and 1 unit per 80 acres above the 1,000-foot
contour, clustering

* * *

2.3 ENVIRONMENTALLY SENSITIVE HABITATS

2.3.1 Overview

Environmentally sensitive habitat areas are areas in which

plant or animal life or their habitats are rare or especially
valuable due to their special role in an ecosystem. These
include rare, endangered, or threatened species and their
habitats; other “sensitive” species and habitats such as
species of restricted occurrence and unique or especially
valuable examples of coastal habitats; all coastal wetlands
and lagoons; riparian corridors; rocky intertidal areas;
near shore reefs and offshore rocks and islets; kelp
beds; rookeries and haul-out sites; important roosting
sites; Areas of Special Biological Significance (ASBS) as
identified by the State Water Resources Control Board.
The California Coastal Act provides unprecedented
protection for environmentally sensitive habitat areas
and, within such areas, permits only resource-dependent
uses (e.g., nature education and research, hunting, fishing,
and aquaculture). The Coastal Act also requires that any
development adjacent to environmentally sensitive areas
 59a

Appendix G

be properly sited and designed to avoid impacts which

would degrade these habitats.

The Carmel Coastal Segment supports a variety of rare,

endangered, or sensitive terrestrial species and habitats:
riparian corridors, Monterey cypress forest, Gowen
cypress woodland, significant stands of Monterey pine,
coast redwood forest, north coastal prairie, and dwarf
coastal chaparral. These environmentally sensitive
habitats should be protected for a variety of reasons: their
high scientific and educational values, their scenic values,
their high wildlife values ‘ and/or their importance in
watershed protection. Several are in public ownership and
are thereby afforded a high degree of protection, though
even these may be threatened by overuse or potential
development on surrounding lands. Other habitats must
be protected from the damaging effects of development
activities or inappropriate activities such as off-road
vehicle use. Protection of the Carmel River riparian
corridor is a particular concern. Sections of the river, both
within and outside of the planning area, have experienced
extensive modification and damage as a result of continued
urban development and related flood control measures and
water supply development.

The Carmel area also supports a remarkable abundance

and diversity of marine life. Rocky intertidal areas, kelp
beds, offshore rocks, bluffs, and cliffs are prominent plant
and wildlife habitats along the Carmel coast. A number of
species of pelagic birds, shorebirds, and marine animals,
including the threatened sea otter, utilize and, to various
degrees, depend upon these marine habitats. certain
 60a

Appendix G

sensitive marine resources already receive protection

under policies and laws guiding local, state, and federal
agencies. Both the Carmel Bay and the marine waters
surrounding Point Lobos Reserve are legally protected
through their designation as Areas of Special Biological
Significance and Ecologic Reserves.

The only major wetland in the Carmel area is the brackish

lagoon and marsh located at the mouth of the Carmel
River. Though most of this wetland is in State ownership,
it is subject to degradation from water pollution,
sedimentation, and recreational use.

2.3.2 Key Policy

The environmentally sensitive habitats of the Carmel

Coastal Segment are unique, limited and fragile resources
of statewide significance, important to the enrichment of
present and future generations of County residents-and
visitors; accordingly, they shall be protected, maintained
and, where possible, enhanced and restored. All categories
of land use, both public and private shall be subordinate
to the protection of these critical areas (see Map B).

Plant communities considered as sensitive are categorized

as follows:

Rare, endangered and sensitive plants

Northern coastal prairie
Chamise-Monterey Manzanita dwarf coastal chaparral
Gowen cypress woodland
Monterey cypress and pine forests
Redwood forest
 61a

Appendix G

Si nce not a l l Mont erey P i ne Fore st a re a s a re

environmentally sensitive habitat, the restrictions of these
policies shall only apply where such forests are determined
to be sensitive on a case by case basis.

Rare and Endangered Species are those identified as rare,

endangered and/or threatened by the State Department
of Fish and Game, United States Department of Interior
Fish and Wildlife Service, the California Native Plant
Society, IUCN list, and/or pursuant to the 1973 Convention
on International Trade in Endangered Species of Wild
Fauna and Flora. Sensitive species are those locally rare
or unique plants defined as endemic, relict, or distinct. In
the Carmel Area, rare, endangered, and sensitive species
include Hickman’s Onion, Sandmat Manzanita, Monterey
Ceanothus, Hutchinson’s Delphinium, California
Dichondra, Point Lobos Eriogonum, Gardener’s Tampah,
Rhododendrons and other species that from time to time
may be added or deleted from this list.

Only small-scale development necessary to support the

resource-dependent uses may be located in sensitive
habitat areas if they can not feasibly be located elsewhere.

2.3.3 General Policies

1. Development , i nclud i ng veget at ion remova l,

excavation, grading, filling, and the construction of
roads and structures, shall be avoided in critical and
sensitive habitat areas, riparian corridors, wetlands,
sites of known rare and endangered species of plants
and animals, rookeries and major roosting and haul-
 62a

Appendix G

out sites, and other wildlife breeding or nursery

areas identified as critical. Resource-dependent uses,
including nature education and research, hunting,
fishing, and aquaculture, shall be allowed within
environmentally sensitive habitats and only if such
uses will not cause significant disruption of habitat
values. Only small-scale development necessary to
support the resource-dependent uses may be located
in sensitive habitat areas if they can not feasibly be
located elsewhere.

Wetlands are defined as lands which may be covered

periodically or permanently with shallow water and
include saltwater marshes, fresh water marshes, open
or closed brackish water marshes, swamps, mudflats
and fens.

2. Land uses adjacent to locations of environmentally

sensitive habitats shall be compatible with the long-
term maintenance of the resource. New land uses
shall be considered compatible only where they
incorporate all site planning and design features
needed to prevent habitat impacts and where they
do not establish a precedent for continued land
development which, on a cumulative basis, could
degrade the resource.

3. New development adjacent to environmentally

sensitive habitat areas shall be allowed only at
densities compatible w ith the protection and
maintenance of the adjoining resources. New
subdivisions shall be approved only where potential
 63a

Appendix G

impacts to environmentally sensitive habitats from

development of proposed parcels can be avoided.

4. To protect environmentally sensitive habitats and

the high wildlife values associated with large areas
of undisturbed habitat, the County shall retain
significant and, where possible, contiguous areas
of undisturbed land in open space use. To this end,
parcels of land totally within sensitive habitat areas
shall not be further subdivided. On parcels adjacent to
sensitive habitats, or containing sensitive habitats as
part of their acreage, development shall be clustered
to avoid habitat impacts.

5. Where private or public development is proposed in

documented or expected locations of environmentally
sensitive habitats—particularly those habitats
identified in General Policy No. I—field surveys by
qualified individuals or agency shall be required in
order to determine precise locations of the habitat
and to recommend mitigating measures to ensure its
protection. This policy applies to the entire segment
except the internal portions of Carmel Woods, Hatton
Fields, Carmel Point (Night heron site excluded),
Odello, Carmel Meadows, and Carmel Riviera. If any
habitats are found on the site or within 100 feet from
the site, the required survey shall document how the
proposed development complies with all the applicable
habitat policies.

6. The County shall require deed restrictions or

dedications of permanent conservation easements
 64a

Appendix G

in environmentally sensitive habitat areas where

development is proposed on parcels containing such
habitats. Where development has already occurred
in areas supporting sensitive habitat, property
owners should be encouraged to voluntarily establish
conservation easements or deed restrictions.

7. Where development is permitted in or adjacent to

environmentally sensitive habitat areas, the County,
through the development review process, shall
restrict the removal of indigenous vegetation and land
disturbance (grading, excavation, paving, etc.) to that
needed for the structural improvements themselves.

8. The County shall require the use of appropriate native

species in proposed landscaping.

9. Where public access occurs or has been introduced in

areas of environmentally sensitive habitats, it shall
be limited to low-intensity recreational, scientific, or
educational uses such as nature study and observation,
education programs in which collecting is restricted,
photography, and hiking. Access in such areas shall
be controlled and confined to designated trails and
paths. No access shall be approved which results in
significant disruption of habitat.

10. The County should request advice and guidance

from the California Department of Fish and Game in
evaluating proposals for new or intensified land uses—
including public access, recreation, and associated
facilities—in or adjacent to environmentally sensitive
habitat areas.
 65a

Appendix G

11. The Department of Fish and Game, which has

responsibility for listing rare and endangered
plants, should provide Monterey County w ith
updated information on plants, locations, and habitat
requirements.

2.3.4 Specific Policies

Terrestrial Plant Habitats

1. To afford long-term protection from the impacts of

existing or potential development, public or private
acquisition of sites of rare, endangered, and sensitive
plants shall be encouraged by the County.

2. Public access to areas of rare, endangered, and

sensitive plants should be actively discouraged and
directed to less sensitive areas. Where allowed, public
access should be strictly managed. Otherwise, the
area should be closed.

3. If existing livestock operations are intensified

and concentrated in or near riparian corridors,
a management program to protect the riparian
resource should be developed.

4. The State Department of Parks and Recreation should

restrict uses of northern coastal prairie habitat to
educational and scientific activities. Recreational uses
and development of structures and trails should be
avoided on prairie habitat areas.
 66a

Appendix G

5. Development proposed near Gowen cypress habitat

shall be set back a minimum of 100 feet to protect
this sensitive resource. No development should be
allowed in this buffer area, and the natural vegetation
should be retained. A maintenance program should
be established for the Gowen cypress habitat.

6. The County, in coordination with the State Department

of Parks and Recreation, should ensure long-term
protection of the remaining Gowen cypress habitat
occurring on private land.

7. Recreational access and associated facilities within

Monterey cypress habitat in Point Lobos State
Reserve should be restricted to existing trails.

MAP B

[Map omitted]

8. The County should work with landowners or other

public agencies (such as the Coastal Conservancy),
as the need arises, to protect both significant stands
of Monterey pine and coast redwood forest through
permanent conservation easements, deed restrictions,
or, where necessary, fee acquisition.

9. In recognition of its function as riparian habitat and

of its important role in watershed protection, redwood
forest habitat in the Carmel coastal segment should
be retained as open space through encouragement
of conservation easement, or, where necessary, fee
acquisition.
 67a

Appendix G

10. Redwood forest and chaparral habitat on land

exceeding 30 percent slope should remain undisturbed
due to potential erosion impacts and loss of visual
amenities.

Riparian Corridors and Other Terrestrial Wildlife

Habitats

1. Riparian plant communities shall be protected

by establishing setbacks consisting of a 150-foot
open space buffer zone on each side of the bank
of perennial streams and 50 feet on each side of
the bank of intermittent streams, or the extent of
riparian vegetation, whichever is greater. No new
development, including structural f lood control
projects, shall be allowed within the riparian corridor.
However, improvements to existing dikes and levees
shall be allowed if riparian vegetation damage can
be minimized and at least an equivalent amount
and quality of replacement vegetation is planted. In
addition, exceptions may be made for carefully sited
recreational trails. The setback requirement may be
modified if it can be demonstrated that a narrower
corridor is sufficient to protect existing riparian
vegetation. Riparian vegetation is an association
of plant species which typically grows adjacent to
freshwater courses and needs or tolerates a higher
level of soil moisture than dryer upland vegetation.

2. The State Water Quality Control Board and the

California Department of Fish and Game, in
coordination with the County of Monterey, should
 68a

Appendix G

establish and reserve instream flows sufficient to

protect and maintain riparian vegetation, fishery
resources and adequate recharge levels for Protection
of groundwater supplies. Maintenance of instream
flows should not preclude control of water levels in the
Carmel River lagoon for flood protection purposes;
i.e., opening the sandbar at the river mouth shall not
be precluded by this policy.

3. The County should encourage a program of riparian

woodland restoration as a part of the development
and environmental review process. As a condition of
approval of projects adjacent to riparian corridors,
the County, where appropriate, should require
landscaping with native riparian species.

4. To protect important wildlife habitat, all off-road

recreational vehicle activity should be discouraged
within riparian corridors and public access should
be limited to designated areas. Accordingly, roads
and trails should be sited to avoid impacts to riparian
habitat.

5. Wildlife management considerations shall be

included in the evaluation of development proposals,
particularly land division proposals. Large, and where
possible, contiguous areas of native vegetation should
be retained in order to meet the various needs of those
wildlife species requiring large areas of undisturbed
habitat.

6. Critical wildlife habitat areas (refer to General Policy

No. 2) shall be protected through permanent easement
 69a

Appendix G

or fee acquisition and an adequate distance between

such habitat and disturbed areas (e.g., building sites
and roads) shall be maintained.

7. To allow for wildlife movement from one open space

area to another, adequate corridors (greenbelts)
connecting open space areas should be maintained or
provided. Such a corridor shall be specifically retained
for movement of wildlife to and from uplands east of
Point Lobos Reserve and the Reserve itself.

8. Except where necessary to alleviate a hazardous

situation, snag removal should be avoided in areas of
Monterey pine, coast live oak, or coast redwood which
are retained in open space use.

9. The restoration of Northern Coastal Prairie in Point

Lobos State Reserve should provide for the retention
of snags along the ecotone and within the area to be
converted to prairie.

Wetlands and Marine Habitats

1. A setback of 100 feet from the edge of all coastal

wetlands shall be provided and maintained in open
space use. No new development shall be allowed in this
setback area. The edge of wetlands shall be pursuant
to policy 2.3.3.5, based on the wetlands definition in
policy 2.3.3.1 and using the U.S. Fish and Wildlife
Service’s classification of Wetlands and Deep Water
Habitats of the United States.
 70a

Appendix G

2. The County shall assist the maintenance and

protection of the Carmel River lagoon and marsh
by encouraging the retention of sufficient instream
flows and controlling erosion and sedimentation from
surrounding and upstream areas.

3. The County shall seek designation of the Carmel

River lagoon and marsh as a natural preserve within
the State Park Systems as recommended by the
Point Lobos—Carmel River State Beach General
Plan. Eventual management by the Department
of Parks and Recreation shall include measures to
limit public access to this natural preserve and to
retain the present character of the marsh and lagoon.
Particular attention should be given to the control of
sedimentation and “filling-in” of this wetlands area.

4. Alteration of the shoreline, including diking, dredging,

and filling, shall not be permitted except where
demonstrated as essential for protection of existing
residential development or necessary public facilities.
Existing dikes and levees can be improved subject to
these and other plan policies.

5. Concentration of recreational development or

recreational activities near accessible tidepool
communities shall not be permitted.

6. The County shall support the continued designation

of Carmel Bay as an Area of Special Biological
Significance.
 71a

Appendix G

7. Permits for dredging and other activities which

would substantially modify the substrate of kelp
forest communities should be reviewed by the Marine
Resources Region of the Department of Fish and
Game.

8. Commercial, industrial or recreational uses which have

the potential to discharge harmful waste products
into the air or water or to generate loud noises or
disruptive vibrations should not be permitted in the
vicinity of seabird and marine mammal colonies.

9. Development on parcels adjacent to intertidal habitat

should be sited and designed to prevent percolation
of septic runoff and deposition of sediment.

2.3.5 Recommended Actions

Land Use Regulation and Management

1. The County should adopt a Riparian Corridor

Ordinance to provide for setbacks from the edge of
both banks of perennial and intermittent streams
and from the edge of the average high water line of
wetlands as specified in the preceding policy section.
The ordinance should restrict all new development in
the setback area. Except for areas with existing dikes
and levees, it should also prohibit the dumping of all
spoils into riparian corridors. Enforcement of the
Riparian Corridor ordinance should be coordinated
with the Department of Fish and Game.
 72a

Appendix G

2. The County should cooperate with the Monterey

Peninsula Water Management District in drafting a
plan for management of the entire Carmel River with
preservation and protection of a continuous riparian
corridor as one of its main objectives.

3. The County should work with the State Department

of Parks and Recreation and the State Coastal
Conservancy to explore the reservation of significant
coastal resource areas, as provided for in the State
Coastal Conservancy Act.

4. The County should encourage the restoration of

sensitive plant habitats on public and private lands. A
program to control and eliminate noxious non-native
vegetation should be developed in conjunction with
the State Department of Parks and Recreation and
State Department of Fish and Game.

5. The County should work in coordination with the

Department of Fish and Game, federal government
agencies (e.g., Fish and Wildlife Service), and local
botanists to develop effective conservation easements,
associated means of implementation and enforcement
procedures to protect sensitive plants and critical
habitat locations.

6. To provide long-term protection f or the Carmel River

and marsh and lagoon, the State Department of Parks
and Recreation should investigate the feasibility of
State acquisition of riparian and wetland habitat
remaining in private ownership.
 73a

Appendix G

7. To reduce accumulated fuel loads, maintain the health

and vigor of the pine and cypress forests, facilitate
reproduction of the Gowen and Monterey cypress,
and reduce the spread of Monterey pine into certain
areas such as Northern Coastal Prairie, the State
Department of Parks and Recreation should develop
a fuel hazard reduction and prescribed burning
program. Such a program should not be executed,
however, until it is proven practical and prudent. In
the meantime, the California Department of Parks
and Recreation should give serious consideration to
contracting for manual removal of fuel-hazardous
materials.

8. A forest conservation and management program

should be developed and implemented by the County
and the State Department of Parks and Recreation
to maintain those Monterey pine and Coast redwood
forest areas retained as open space. The management
program should include the following elements:

a. The retention of snags for wildlife use

b. Control of disease and pests

c. W here applicable, measures to minimize

alteration of drainage patterns as a result of new
development

d. Provision and regulation of public access and

recreational use.
 74a

Appendix G

9. The State Department of Parks and Recreation should

monitor disturbed areas such as trail construction
sites for the presence of noxious plants and erosion,
and such potential problems should be immediately
controlled.

10. A fish ladder should be constructed at the diversion

dam on San Jose Creek to facilitate migration of
steelhead for spawning upstream. Funding for
this ladder should be requested from the State
Department of Water Resources through its Stream
Enhancement Program.

11. To prevent damage or degradation of this sensitive

habitat area, public access to the Gibson Creek Annex
should be managed through ranger or docent-guided
tours as recommended by the Point Lobos State
Reserve-Carmel River State Beach General Plan.

12. The State Department of Parks and Recreation’s

interpretive program should include static displays,
guided nature walks and published information which
emphasize the values of environmentally sensitive
habitats and which are directed toward the general
public.

13. The County, in coordination with the State Department

of I Parks and Recreation and other concerned
agencies or organizations should promote increased
public understanding of the importance and values of
environmentally sensitive habitats by the following
means:
 75a

Appendix G

a. Encouraging and supporting environmental

education programs that emphasize understanding
of local habitat areas in the public schools and
in informal educational programs offered by
community organizations.

b. Providing signs, interpretive displays and/or

educational materials at appropriate locations
to inform the public of the sensitivity and habitat
values of selected local sites.

Monitoring and Continuing Research

1. The State Water Resources Control Board, the State

Department of Fish and Game, the State Department
of Parks and Recreation, the County of Monterey, the
Carmel Sanitary District, and the universities and
research stations should develop a coordinated water
quality monitoring program for the Areas of Special
Biological Significance.

2. The Department of Fish and Game should continue

to evaluate the impact of kelp harvesting on other
marine resources (e.g., juvenile fish, sea otters) and
the uses dependent upon them (e.g., sport fishing,
recreational diving, scenic driving, and picnicking).
The results of its evaluation should be forwarded to
the County and other concerned agencies such as
the U. S. Fish and Wildlife Service and the State
Department of Parks and Recreation.

3. The Department of Fish and Game should evaluate

the adequacy of restrictions on kelp harvesting. The
 76a

Appendix G

rule which states that a maximum 50 percent of a kelp

bed may be cut should be given special scrutiny.

4. The State Department of Fish and Game should work

with the U.S. Fish and Wildlife Service to determine
those factors currently affecting the growth rate of
the otter population. The County should request the
Department of Fish and Game to report annually on
the status of the sea otter population.

5. The Department of Fish and Game should work with

the U.S. Fish and Wildlife Service and the Point Bird
Observatory to assess and report on the status of
pelagic bird and marine mammal populations off the
Carmel coast in relation to West Coast populations.
Special attention should be given to threats to food
sources and habitat integrity, particularly to potential
expansion of the squid fishery which could reduce the
available food supply for marine birds and mammals.

6. The County shall continue to monitor the review

process of the Outer Continental Shelf (OCS) Lease
Sale to express its continuing opposition to lease sales
and to coordinate its actions with other affected local
coastal governments.

7. The County should work with the OcS Planning Group,

the U.S. Coast Guard, and the Department of Fish and
Game to ensure that oil transport activities near the
Monterey Carmel coast include adequate procedures
to protect marine bird and mammal (particularly, sea
otters) populations and to clean up oil spills.
 77a

Appendix G

8. The County should work with the Federal Office of

Coastal Zone Management of the Bureau of Land
Management (BLM) and with the National Oceanic
and Atmospheric Administration (NOAA) to the
Department of Commerce to assure that northbound
sea lanes for tanker traffic off this coast are well
outside the three-mile limit in order to protect the
entire shoreline from possible spills or coincidental
pumping of bilges.

2.4 WATER AND MARINE RESOURCES

2.4.1 Overview

The Carmel coasts’ major streams are the Carmel

River, San Jose Creek, Gibson Creek, Wildcat Creek,
and Malpaso Creek. With the exception of the Carmel
River, these streams are small, but all directly support
riparian wildlife and plant communities. Because many
of the streams are small, development of residences,
agriculture, and public or private recreation and visitor-
serving facilities can place excessive demands on the
water available in some watersheds. When overuse is
allowed, through unwise approvals of development or
use applications, degradation of the natural environment
results with loss of plant, wildlife, and fish habitats.
Eventually, people dependent on the adequate supply of
quality water will suffer too as private and community
water systems fail. The drought of 1976-78 emphasized
the critical need for a careful and conservative approach
to planning and to recognize that drought year flows are
the controlling factor for all human and natural uses.
 78a

Appendix G

Deterioration of water quality poses a threat to both

freshwater and marine communities. Potential point
sources of pollution include the Carmel Sanitary District
Sewage Treatment plant and existing package treatment
plants. Secondarily-treated effluent from the sanitary
district’s treatment plant is discharged into the Carmel
Bay ASBS, (Area of Special Biological Significance)
while effluent from the two package treatment plants is
discharged into the open ocean south of the Point Lobos
ASBS. Nonpoint sources of pollution include: (1) the
contaminants and sediments found in urban stormwater
runoff entering the Carmel River and Carmel Bay ASBS,
and (2) septic system and leachfield failures in the Carmel
Highlands area.

In recent years, the Carmel River has experienced

extensive erosion and sedimentation while the Carmel
Bay has sustained a notable decline in water clarity.
Preservation of the remarkable diversity of marine
life found in Point Lobos and Carmel Bay ASBS’s and
protection of those scientific, educational, and recreational
values dependent on this marine life will require that
a high level of water quality be maintained. Similarly,
protection of the coastal streams natural environment will
necessitate that both water quality and adequate instream
flows be maintained.

All decisions concerning the development of the Carmel

area must ensure the protection of water quality through
the use of adequate stream setbacks, grading and erosion
control measures, and vegetative maintenance.
 79a

Appendix G

2.4.2 Key Policy

The water quality of the Carmel area’s coastal streams

and of the Point Lobos and Carmel Bay Areas of Special
Biological Significance shall be protected and maintained.
Instream flows should be protected in order to maintain the
natural plant community and fish and wildlife. In general,
the County will require adherence to the best watershed
planning principles, including: stream setbacks, stream
flow maintenance, performance controls for development
site features, maintenance of safe and good water quality,
protection of natural vegetation along streams, and careful
control of grading to minimize erosion and sedimentation.

2.4.3 General Policies

1. The effects of all new development proposals or

intensification of land use activities or water uses
on the natural character and values of the Carmel
coasts streams will be specifically considered in all
land use decisions. Subjects to be addressed in such
evaluations include protection of water quantity and
quality, wildlife and fish habitat, and recreational and
scenic values. Land use proposals determined to pose
unacceptable impacts to the natural integrity of the
stream must be modified accordingly. The County
should request technical assistance from the State
Department of Fish and Game in determining effects
on fish and wildlife habitat and appropriate mitigation
measures.
 80a

Appendix G

2. New development including access roads shall be sited,

designed and constructed to minimize runoff, erosion,
and resulting sedimentation. Land divisions shall be
designed to minimize the need to clear erodable slopes
during subsequent development. Runoff volumes and
rates should be maintained at pre-development levels,
unless provisions to implement this result in greater
environmental damage.

3. Point and non-point sources of pollution of Point Lobos

and Carmel Bay ASBS’s, coastal streams and the
Carmel River Lagoon and Marsh shall be controlled
and minimized.

4. New development shall be located and developed at

densities that will not lead to health hazards on an
individual or cumulative basis due to septic system
failure or contamination of groundwater. On-site
systems should be constructed according to standards
that will facilitate long-term operation. Septic
systems shall be sited to minimize adverse effects to
public health and sensitive resource areas.

5. The use of on-site wastewater management systems

that reduce the risk of failure or groundwater
contamination and are approved by the County Health
Department should be encouraged.
 81a

Appendix G

2.4.4 Specific Policies

A. Water Availability

* * *

6.2.1 Zoning Ordinance Changes

A. Rezoning

Rezoning of the Carmel area will be necessary to reflect

the land use plan. The uses, densities, and locations of
zoning revisions must be consistent with Land Use Plan
Map and policies as closely as possible in accordance with
State laws. Zoning should be adequately flexible to permit.
The range of uses and densities provided for in the plan.

The Monterey County Zoning Ordinance (Ord. No. 911)

should be amended to delete use of the combining Coastal
Zone (CZ) district, and to add general coastal zone
regulations and separate coastal zone districts as set out
above. The general regulations will incorporate and refer
to Coastal Act (Public Resources Code Section 30000 et.
seq.) policies. They will also incorporate provisions of the
Monterey County Zoning Ordinance for Design Control
Districts (Section 25) and Scenic Conservation Districts
(Section 23.3c), for appeal (Section 32), and enforcement
(Section 36), and provisions of the Subdivision Ordinance
(Ord. No. 1713) for appeal and for enforcement (Section 10).
 82a

Appendix G

Some suggested zoning districts include:

CZ-WSC Coastal Zone —Watershed and Scenic

Conservation District: Includes low-density
residential development, low-intensity
recreation, agriculture, and forest and
watershed management.

CZ-SNRR Coastal Zone—Scenic and Natural Resource

Recreation District: Includes low-intensity
recreational uses.

CZ-ST Special Treatment: Includes areas where

concentration of development may be
permitted subject to resource protection
measures of the land use plan.

B. Development Permits

All development in the coastal zone will be required to

obtain a development permit from the County that will
be approved based on demonstrated compliance with the
plan and all its provisions. Some forms of development,
similar to that exempted in the Coastal Act, may also
be exempted from obtaining a coastal permit from the
County. Final action on coastal permits will be taken by
the Board of Supervisors for standard subdivisions; all
other development will be considered by the Planning
Commission subject to Board appeals.
 83a

Appendix G

C. Site Plan Review

Projects applying for a coastal permit will undergo

a comprehensive site plan review to determine the
consistency of the proposed project with the plan. The
applicant will be permitted flexibility to develop in any
manner which is consistent with any of the variety of uses
and densities included in the particular zoning district
and which meets the performance standards set forth in
the land use plan.

D. Performance Standards

* * *
 84a

Appendix G

Monterey County Periodic Review

Development and Preservation
Carmel Area Uplands
 85a

Appendix G

MONTEREY COUNTY ZONING

COASTAL IMPLEMENTATION PLAN—TITLE 20

20.36—RC (CZ) DISTRICT

20.36.010 PURPOSE.

The purpose of this Chapter is to provide a district to

protect, preserve, enhance, and restore sensitive resource
areas in the County of Monterey. Of specific concern are
the highly sensitive resources inherent in such areas
such as viewshed, watershed, plant and wildlife habitat,
streams, beaches, dunes, tidal areas, estuaries, sloughs,
forests, public open space areas and riparian corridors.
The purpose of this Chapter is to be carried out by
allowing only such development that can be achieved
without adverse effect and which will be subordinate to
the resources of the particular site and area.

20.36.020 APPLICABILITY.

The regulations of this Chapter shall apply in all “RC”

districts subject to Chapter 20.62 (Height and Setback
Exceptions) and Chapter 20.70 (Coastal Development
Permits) of this Title.

20.36.030 NONEXEMPT DEVELOPMENT

The following list shall require a coastal development

permit regardless of which category of allowed uses it
falls into:
 86a

Appendix G

A. Development which w i l l cause a Sig n i f icant

Environmental Impact;

B. Development within the Critical Viewshed as defined

by Section 20.145.020.V (Big Sur);

C. Development on slopes of 30% or greater (25% in

North County) except as provided for in Section
20.64.230 (C) (2) and (3);

D. Ridgeline Development;

E. Development within 100 feet of mapped or field

identified environmentally sensitive habitats;

F. Development with positive archaeological reports;

G. Land divisions;

H. Development of new or expanded agricultural

operations if 50% or more of the parcel has a slope
of 10% or greater; or where the operation is to occur
on soils with a high or very high erosion hazard
potential, according to the Soil Conservation Service
Soil Survey Manual.

20.36.040 PRINCIPAL USES ALLOWED, COASTAL

ADMINISTRATIVE PERMIT REQUIRED IN EACH
CASE. (20.70) UNLESS EXEMPT (20.70.120)

A. Resource dependent educational and scientific

research facilities uses, and low intensity day use
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Appendix G

recreation uses such as trails, picnic areas and

boardwalks;

B. Restoration and management programs for fish,

wildlife, or other physical resources;

2 0. 3 6 .0 50 CON DITIONA L USES A LLOW ED,

COASTAL DEVELOPMENT PERMIT REQUIRED
IN EACH CASE. (20.70) UNLESS EXEMPT (Section
20.70.120)

A. Except in Big Sur dredging, filling, excavation, dams,

flood control facilities, dikes levees, revetments,
seawalls and cliff retaining walls;

B. Except in Big Sur public utility facilities such as pipe

lines, underground and overhead utility extensions,
and water tanks, but not including public/quasi-public
uses such as schools, fire stations, or parking lots;

C. In Big Sur only hike-in and environmental campsites;

D. Legal nonconforming use of a portion of a structure

extended throughout the structure (ZA);

E. Legal nonconforming use changed to a use of a similar

or more restricted nature;

F. For State Parks and Fish and Game Reserves,

uses subject to State-approved facilities and area
management plans;
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Appendix G

G. Lot Line Adjustments;

H. Subdivisions;

I. Conditional Certificates of Compliance;

J. Other resource conservation uses of a similar

character, density and intensity to those uses listed in
this Section determined by the Planning Commission
to be consistent and compatible with the intent of this
Chapter and the applicable land use plan.

20.36.060 SITE DEVELOPMENT STANDARDS.

A. Minimum Building Site

The minimum building site shall be one acre.

B. Structure Height and Setback Regulations

The following structure height and setback regulations

apply unless superseded by a structure height limit noted
on the zoning map (e.g. “RC/10(24’)” would limit structure
height to 24 feet), setback requirements when combined
with a “B” district, setbacks shown on a recorded final or
parcel map, or setback lines on a Sectional District Map.

1. Main Structures

a) Minimum Setbacks

Front: 30 feet
Side: 20 feet
Rear: 20 feet
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Appendix G

b) Height

Maximum Height: 30 feet

2. Accessory Structures (Habitable)

a) Minimum Setbacks

Front: 50 feet
Side: 6 feet
Rear: 6 feet

b) Height

Maximum Height: 15 feet

3. Accessory Structures (Non-habitable)

a) Minimum Setbacks

Front: 50 feet
Side: 6 feet on front one-half of property;
1 foot on rear one-half of property.
Rear: 1 foot

b) Height

Maximum Height: 35 feet

4. Accessory structures used as barns, stables or

farm outbuildings shall not be less than 50 feet
from the front of the property or 20 feet from
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Appendix G

the side or rear property line or 20 feet from any

residence on the property.

C. Minimum Distance Between Structures

Main Structures: 20 feet

Accessory/Main Structure: 10 feet
Accessory/Accessory: 6 feet

D. Building Site Coverage, Maximum: 5%

E. Parking Regulations

All parking shall be established pursuant to

Chapter 20.58.

F. Landscaping Requirements

None, except as may be required by condition of

approval of a Coastal Administrative Permit or
Coastal Development Permit. Natural vegetation
shall be retained or restored.

G. Lighting Plan Requirements

None, except as may be required by condition of

approval of a Coastal Administrative Permit or
Coastal Development Permit.
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Appendix G

H. Sign Regulations

Signing for all development shall be established

pursuant to Chapter 20.60.

I. Building Site Area

The minimum building site area shall be one acre.

20.36.070 SPECIAL REGULATIONS.

A. Manufactured Dwelling Units

Manufactured dwelling units meeting the standards

of Section 20.64.040 are permitted subject to the
requirements of any conventional dwelling unit in this
Chapter.