Jesse Elizondo v. City of Junction City

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JESSE ELIZONDO and RANDEE No. 16-35129
ELIZONDO,
D.C. No. 6:15-cv-01853-AA

Plaintiffs-Appellants,
MEMORANDUM*
v.

CITY OF JUNCTION CITY; MIKE
CAHILL, Mayor of Junction City; RANDY
NELSON, City Council President; BILL
DEMARCO; HERB CHRISTENSEN; JIM
LEACH; KAREN LEACH; and STEVEN
HITCHCOCK, City Council Members,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding

Submitted October 7, 2016**
Portland, Oregon

Before: O’SCANNLAIN, CLIFTON, and NGUYEN, Circuit Judges.

*
This disposition is not appropriate for publication and is not
precedent, except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
Jesse and Randee Elizondo (the “Elizondos”) appeal the district court’s

denial of their motion to preliminarily enjoin the City of Junction City (the “City”)

from cutting down a tree located in front of their residential property. We have

jurisdiction under 28 U.S.C. § 1292, and we affirm.

We review the denial of a preliminary injunction for abuse of discretion and

the underlying legal principles de novo. DISH Network Corp. v. F.C.C., 653 F.3d

771, 776 (9th Cir. 2011). The district court abuses its discretion when it bases “its

ruling on an erroneous view of the law or on a clearly erroneous assessment of the

evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

The district court here appropriately applied the preliminary injunction

factors under Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7, 20

(2008), and did not abuse its discretion in concluding that the Elizondos failed to

show a fair chance of success on the merits of their procedural due process claim.

See Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012). The City afforded

the Elizondos opportunities to be heard through public meetings and considered the

Elizondos’ arguments before deciding to cut down the tree. See Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (procedural due process simply

requires notice of the proposed decision, some explanation of the evidence

2
supporting the decision, and a meaningful opportunity for the affected party to tell

his side of the story).

The district court also did not abuse its discretion in denying preliminary

injunction on the Elizondos’ Equal Protection Clause claim. The Elizondos can

succeed on their claim only if they show that they were intentionally treated

differently from other similarly situated property owners, and that the difference in

treatment lacked a rational basis. See Gerhart v. Lake Cty., Mont., 637 F.3d 1013,

1022 (9th Cir. 2011). The evidence does not show that they were treated

differently than other similarly situated property owners. As the district court

noted, the situations of other property owners cited by the Elizondos were not

sufficiently similar because they did not present all of the unique issues posed by

the maple tree in front of the Elizondos’ property, including its location on an

intersection, which created a visual setback in violation of the thirty-foot

requirement of the municipal code, caused the surrounding sidewalk to buckle, and

obstructed the installation of an Americans with Disabilities Act-compliant ramp.

Moreover, the City provided multiple rational bases for its decision. The City’s

decision to remove the tree was based on legitimate considerations of the high

costs of alternatives and the aesthetics of maintaining a uniform street design. See

3
Seeboth v. Allenby, 789 F.3d 1099, 1105 (9th Cir. 2015) (noting that the state

court’s determination that parties were not similarly situated “amounts to a

determination that the state has a constitutionally sufficient reason for treating the

groups differently”); see also Clark v. City of Los Angeles, 650 F.2d 1033, 1039

(9th Cir. 1981) (approving aesthetics as a possible rational basis for a zoning

ordinance).

AFFIRMED.