Just about all developers have had bad experiences with boards of supervisors, city councils and planning commissions. Most developers try their best to accommodate their demands, but what if the constant denials are something more than policy? What if it's personal?

     Until now, homeowners, developers and builders had no recourse, but a recent appellate decision gives landowners a court-backed remedy to respond to unscrupulous local government agencies and public employees.

     Carpinteria Valley Farm Ltd. v. County of Santa Barbara says that government land-use agencies cannot infringe on a landowner's civil rights and undertake a pattern of discriminatory actions against the landowner.

     Carpinteria Valley Farms was a corporate arm of property owner Patrick Nesbitt. Nesbitt purchased 20 acres in the 160-acre Edgewood Ranch subdivision in Montecito in 1994. Before his acquiring the property, the location was undeveloped and neglected and had been used as a county dump site.

     As a polo team owner, Nesbitt wanted to build a polo field and a residence on the property. The adjacent neighborhood contains other polo practice facilities. The home he was attempting to build was between 8,000 square feet and 12,000 square feet. Homes of similar size or larger had been constructed near Nesbitt's property.

     Nesbitt was active in local, state and national politics and, at the time, happened to be on the wrong side of the political fence of a supervisor in his district. Nesbitt had actively campaigned for candidates running against the supervisor.

     During the 10 years after purchasing the property, Nesbitt submitted more than 11 applications to the county to develop the property according to zoning codes, conditions, covenants and restrictions.

     The county consistently delayed the process, imposed conditions and constraints not imposed on other property owners, charged Nesbitt tens of thousands of dollars in unlawful fines and fees, forced him to adhere to a permitting process not required by other similarly situated property owners and encouraged local citizen groups to interfere with his efforts. Some of the county's most outrageous actions follow:

     "The county erroneously determined that a portion of Nesbitt's property was a monarch butterfly habitat. The county forced Nesbitt to hire scientists to study the location. These butterfly experts determined that no butterfly site existed on the property. The county ignored the scientists' findings and, instead, required Nesbitt to create a butterfly habitat on a large corner of his property. Nesbitt had to pay $31,000 in so-called butterfly habitat mitigation fees.

     "After plans for Nesbitt's residence were finally approved, a Santa Barbara County planning department staff member called Nesbitt's project manager and said the approval was reversed. Upper-level supervisors told the staff member that they were under intense political pressure from people who wanted to see the project stymied.

     Nesbitt became very vocal about his treatment by the county. The more he spoke out, the worse his treatment became. Eventually, planning department staff members revealed to Nesbitt employees that they were told by their superiors to "go tough on Nesbitt" and to restrict his project.

     Nesbitt sued the county, arguing that a pattern of behavior existed that amounted to equal protection violations and, under the federal Civil Rights Act, Nesbitt's civil rights had been violated.

     A federal judge threw out the case, but the decision was reversed on appeal to the 9th U.S. Circuit Court of Appeal.

     The higher court held that the federal Civil Rights Act protects anyone who applies for a land-use permit to a local agency and is confronted with a pattern of discriminatory behavior and denial of due process.

     The court also based its decision on whether the government entity's decision-making process included impermissible considerations such as the desire to punish landowners for exercising their First Amendment rights.

     Because of the precedent-setting nature of Carpinteria Valley Farm, government entities and public employees must be extraordinarily careful about misbehavior that falls under the federal Civil Rights Act guidelines.

     In the past, government boards and commissions felt they were immune from liability because of the difficulty of bringing legal action against them. Now a federal opinion makes it more difficult for public employees to get away with discriminatory or retaliatory behavior.
The court strengthened the civil rights of individuals who come before local government. Its ruling sends a clear message that local governments cannot use their considerable power to harass and abuse the civil rights of its citizens.

     Carpinteria Valley Farm makes it clear that improper government behavior against its citizens will no longer be tolerated. City and county government employees should be on notice that they must now treat their constituency fairly and with respect or otherwise face the consequences.

A. Barry Cappello is managing partner of the Santa Barbara law firm of Cappello & Noël. He represented Patrick Nesbitt in Carpinteria Valley Farms Ltd. v. County of Santa Barbara.

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