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Ninth Circuit Affirms Installations of Road Median Against Constitutional Challenges

Wardany v. City of San Jacinto, 9th Circuit Case No. 11-55879 (February 14, 2013) involved the installation of a median strip in front of plaintiff’s business so as to prevent motorists from making a left turn onto the property.  Plaintiff alleged a taking, violation of procedural due process and equal protection rights, and the First Amendment speech and establishment clauses.  The District Court granted summary judgment and plaintiff appealed.

The Ninth Circuit said there must be a protected property or liberty interest under state law for many of these constitutional provisions raised to operate and found plaintiff had no such interest in any particular level of access to its property.  That property remains accessible except for a prohibited direct left hand turn into the property.  Even if there were such an interest, plaintiff is affected in the same way that other property owners along the same stretch of road are subject to the new median.  Moreover, Defendant City alleged it mailed notices of the change (although plaintiff denies receiving the same).

Having found no procedural due process violation, the Ninth Circuit also rejected plaintiff’s equal protection and First Amendment challenges as there was no discriminatory treatment on the basis of race or national origin, or differential treatment of plaintiff’s business, aside from plaintiff’s own speculation which did not create a triable issue of fact.  The previous denial of plaintiff’s cell tower request appeared to the court to be a proper application of the City’s zoning ordinance and the court noted that plaintiff could have sought a variance or asked for a rezoning of the property but declined to do so.  The court saw no connection between this denial (and the previous sign code violation dispute) and the median installation sufficient support a retaliatory motive.  Similarly, there was no establishment clause violation shown in the record except plaintiff’s suggestion that an adjacent church was attempting to buy his property.  Finally, there was no factual basis for a taking or inverse condemnation claim under either federal or California constitutional or statutory laws to support a civil rights claim.  The District Court judgment was thus affirmed.

This case illustrates the folly of spending time and money to make constitutional claims without a supportive evidentiary basis.

Wardany v. City of San Jacinto, 11-55879 (9th Cir.) (February 14, 2013).

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