On December 7, 2017, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the County of Ventura’s land use regulations, which require a conditional use permit for “temporary outdoor” events, violate the First Amendment’s protections of free speech and expression.

The case, Epona, LLC v. County of Ventura, __ F.3d __ (9th Cir. 2017), arose out of a CUP application to use a 40-acre working ranch and vineyard known as the Epona Estate for up to 60 outdoor events per year, including weddings.  The property is zoned for agricultural use, and neighboring properties are designated either as agricultural or as open space.

The County’s zoning ordinance provides that a CUP “shall” issue when certain standards are satisfied, and the applicant bears the burden of proving all relevant standards can be met.  Among other things, the proposed use must be:

a) consistent with the intent and provisions of the County’s General Plan and Zoning Ordinance;

b) compatible with the character of surrounding, legally established development;

c) not obnoxious or harmful, [and must not] impair the utility of neighboring property or uses;

d) not detrimental to the public interest, health, safety, convenience, or welfare; and

e) compatible with existing and potential land uses in the general area where the development is to be located.

County staff supported issuance of the permit.  In the face of objections from neighboring landowners, however, the County’s Planning Commission denied the application, finding that it was not compatible with the rural community, has the potential to impair the utility of neighboring property or uses, and has the potential to be detrimental to the public interest, health ,safety, convenience, or welfare.  The Board of Supervisors split its vote 2-2, which had the effect of affirming the denial.

The applicant then filed a complaint in federal district court alleging that the standards and denial violated the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).  The court held that the applicant could only challenge the CUP scheme “as applied” and granted the County’s motion to dismiss for failure to state a claim.  The court also held that the permitting scheme was “content neutral” and did not grant “unbridled discretion” to the County.

A three judge panel of the Ninth Circuit Court of Appeals reversed the district court, holding that the applicants could bring a facial challenge to the County’s permitting scheme.  The Court then reasoned that the foregoing permitting standards do not provide sufficiently specific and objective guidance to local officials.  Accordingly, the Court held that the County’s ordinance imposes an unconstitutional prior restraint on protected speech by vesting local permitting officials with unbridled discretion to grant or deny a permit.

Epona, LLC is an important new property rights case that highlights the limits of local land use regulation in the context of federal constitutional protections.  Neither the provision of specific guidelines nor a requirement of specific factual findings is necessarily determinative of whether an ordinance confers excess discretion in a facial challenge.  Rather, courts will “look to the totality of the factors to assess whether an ordinance contains adequate safeguards to protect against official abuse.”


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.