Nature of the Case
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Facts
In the fall of 2010, P wanted to open a gun store in Alameda County, California. P concluded that there was a demand for a full-service gun store in an unincorporated area of D called San Lorenzo. P contacted D's Planning Department for information as to any land use or other permits necessary to open a gun store in unincorporated areas of D. Under Ordinance Sections 17.54.130 et seq. P was required to get a conditional use permit. Such permits are required for certain land uses and are granted after a special review in which D determines whether or not the proposed business (1) is required by public need; (2) is properly related to other land uses and transportation and service facilities in the area; (3) if permitted, will materially and adversely affect the health or safety of persons residing or working in the vicinity; and (4) will be contrary to the specific performance standards established for the area. Section 17.54.131 (Zoning Ordinance) requires, that businesses selling firearms in unincorporated areas of D be located at least five hundred feet away from any of the following: schools, daycare centers, liquor stores or establishments serving liquor, other gun stores, and residentially zoned districts. P identified a suitable rental property. The Staff of the D Planning Department made the following findings: there was a public need for a licensed firearms dealer; the proposed use was compatible with other land uses and transportation in the area; and a gun shop at the proposed site would not adversely affect the health or safety of persons living and working in the vicinity. It also found that the site did not satisfy the Zoning Ordinance's distance requirements, because it was approximately 446 feet from two residential properties in different directions. The distance calculation was based on measurement from the closest exterior wall of the proposed gun shop to the property lines of the disqualifying properties. P's permit application was denied. After a public hearing D acknowledged the ambiguity in the Zoning Ordinance regarding how the 500 feet should be measured for the purpose of determining compliance. Whether measured from the exterior wall, front door, or property line of the proposed gun shop, it was within 500 feet. D’s staff recommended that P be denied a Conditional Use Permit and variance. The Zoning Board passed a resolution granting P a variance and approving his application for a Conditional Use Permit. It granted the variance in light of the physical buffer created by a major highway between the proposed site and the nearest residential district. The Zoning Board also determined that there was a public need for a licensed firearms retailer in the neighborhood. The San Lorenzo Village Homes Association filed an appeal and the Board of Supervisors voted to sustain the appeal, overturning the Zoning Board's decision and revoking the Conditional Use Permit. P was unable to identify any property that satisfied the ordinance's 500-foot rule and was otherwise suitable-in terms of location, accessibility, building security, and parking-for a gun shop. A study found it 'virtually impossible to open a gun store in unincorporated D' that would comply with the 500-foot rule 'due to the density of disqualifying properties.' P filed a complaint in federal district court based on due process, equal protection, and Second Amendment grounds, and alleged violations of P's own rights as well as those of his prospective customers. D filed a motion to dismiss the complaint for failure to state a claim, which the district court granted. A three-judge panel reversed the district court's dismissal of P's Second Amendment Claims, remanding for further proceedings. This appeal resulted.
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