9th Circuit Court of Appeals Rules Against Ventura County Conditional Use Permitting Scheme

Editor’s Note: This post originally appeared on the Rocky Mountain Sign Law Blog here: https://www.rockymountainsignlaw.com/2017/12/ninth-circuit-rules-ventura-county-conditional-use-permitting-scheme/#more-2436

Michael Fowler, a resident of Ventura County, California, cultivated a garden on a portion of his agriculturally-zoned 40 acre property and began renting it out for wedding ceremonies and similar events with much success. However, due to changes to the County’s permit requirements, Mr. Fowler is now required to obtain a conditional use permit (CUP) before hosting any additional weddings on his estate.  With reservations already on his books, Mr. Fowler submitted the required application.  Officials tasked with reviewing his application found that the use would cause no adverse impacts and recommended granting the permit; however, after receiving complaints from neighbors, these same officials denied his application.  The Board of Supervisors upheld the denial on appeal.  This seemingly capricious denial forced Mr. Fowler to chose between breaking the law and dashing the dreams of couples who had already booked his venue by essentially cancelling their weddings.  Sensibly, he chose the latter “option,” resulting in at least one scathing review of his business and untold reputational harm.

Thwarted but not defeated, Mr. Fowler challenged the permitting scheme in the Untied States District Court for the Central District of California, claiming, among other things, that it abridges his customers’ right of free speech in violation of the First Amendment. The District Court dismissed his suit on all grounds and Mr. Fowler timely appealed his case to the Ninth Circuit.

There, the Ninth Circuit first held that Mr. Fowler has standing to challenge the County’s permitting scheme, noting that (i) vendors have well-established third-party standing to advocate for the rights of their customers and (ii) Mr. Fowler’s “injury” is redressable through elimination of the CUP scheme.

That threshold matter firmly settled, the Ninth Circuit then held that the ordinance was not a valid time, place, and manner restriction on speech for two reasons. First, the Court found that the CUP scheme lacks definite and objective standards upon which officials must base their decisions.  Second, the Court noted that the CUP scheme lacks a specific time limit in which officials must reach their decision.  According to the Ninth Circuit, these deficiencies within the CUP scheme give permitting officials “unbridled discretion” in direct violation of the First Amendment.  With this ruling in hand, Mr. Fowler may once again request injunctive relief in District Court, though it remains to be seen whether wedding bells are in his future.

 

Epona v. County of Ventura, 2017 WL 6044233 (9th Cir. Dec. 7, 2017)