Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. (Super. Ct. No. 30-2008-00101411)
The opinion of the court was delivered by: Rylaarsdam, Acting P. J.
CERTIFIED FOR PUBLICATION
Motions to strike portions of the opening and reply briefs. Motions denied. Judgment affirmed in part and reversed and remanded in part.
The City of San Clemente (City) appeals from a conditional judgment in favor of Avenida San Juan Partnership (the owners). The City imposed an "RVL" or "residential, very low" set of land use restrictions on an undeveloped 2.85 acre parcel in the middle of a residential tract otherwise zoned "Residential, Low (RL) Density Zone." The RVL designation limits parcels to one dwelling per 20 acres. RL, by contrast, allows at least four dwellings per acre. There were two phases of trial. In phase one, the trial court concluded the restrictions constituted spot zoning. It issued a writ of mandate declaring the resolution denying the owners' application to develop four houses on the property null and void and ordered the City to adopt a new resolution vacating the resolution denying the owners' application.
The City asked for a stay of the writ. The stay was granted. In phase two, there was a trial on the owners' request for damages. The court found a compensable taking, using the "Penn Central factors" test. (See Penn Central Transp. Co. v. City of New York (1978) 438 U.S. 104 (Penn Central).) The court entered a conditional judgment. The judgment gave the City the choice of either complying with the writ of mandate or paying $1.3 million in damages for the value of the property taken by the RVL restrictions.
We affirm the judgment so far as the trial court gave the City the choice of either complying with the writ of mandate or paying inverse condemnation damages. The City's refusal to lift the imposition of the RVL restriction on this particular parcel was arbitrary and capricious. As the trial court also found, applying the factors enumerated by Penn Central, that refusal to lift the RVL restrictions imposed specifically on this parcel constituted a taking. Further, this litigation was timely. This action is in substance an "as applied" challenge to the City's denial of requested changes to the City's land use scheme which otherwise works a peculiar hardship on the particular parcel at issue here, not a general attack on RVL zoning as such. However, we reverse the judgment to afford the trial court the opportunity to reconsider the fair market value of the property.
The subject parcel consists of an undeveloped 2.85 acres on a slope that fronts Avenida San Juan. When the owners bought it in 1980, the zoning allowed six dwellings per acre.
In the early 1980's the owners wanted to develop four houses on the property. Their plans were well within the existing land use restrictions. The City approved plans to subdivide the property allowing for four single family lots. These lots would be connected to the street by a cul-de-sac road. Construction of the road required considerable grading, but the City specifically found that there were no geological obstacles to developing the property with four residences. A city resolution at the time stated that "'all competent evidence before the City Council indicates that the site is developable without danger to adjacent properties.'"
Opposition arose in the neighborhood. In 1983 a landslide occurred in the Verde Canyon area, which is generally located to the southwest of the subject parcel and lies behind the homes which front the southern side of Avenida San Juan. The landslide did not involve the subject parcel. Even so, a group of neighbors petitioned the City to make the subject parcel open space. The City attorney at the time, however, opined that rezoning the parcel as open space would be a compensable taking. The City engineer said there was no reason to reconsider the tentative parcel map approval already given. The property remained zoned six houses per acre. However, the owners did not develop it at the time.
2. The 1993 and 1996 RVL Restrictions
In 1993, the City amended its general plan to create the RVL zoning and impose it on several properties, including the subject property. All parcels surrounding the subject property, however, were zoned RL. RVL zoning in San Clemente allows only one residence for every 20 acres. RL zoning allows four dwellings per acre.
The City did not get around to formally rezoning the property from
"R-1-B-1" to the one-dwelling-per-20 acres RVL until 1996. In mid-February of that year the City approved changing the zoning for a variety of properties to correspond to the 1993 amended general plan.
The general plan states that the purpose of RVL zoning is to preserve open space in canyons. RVL zoning, under the terms of the City's ordinance, is intended to apply to cases of "significant acreage." The subject parcel is 2.85 acres. It is not a canyon. It is a slope. The ordinance says nothing about slopes.
The ordinance specifically recites that the purpose of RVL zoning is to "preserve currently undeveloped canyons which are either geologically unstable, or aesthetic open-space, or biological resources." There is no dispute that the parcel does not contain "any sensitive biological resources."
3. The 2006 Variance Application and 2007 Denial
None of the partners in the partnership actually found out about the downzoning from R-1-B-1 to RVL until 2004. That year they hired a civil engineer to help them once again try to develop the property.
In early September 2006 the owners submitted a development application to build four dwellings on the 2.85 acres. Specifically, the application sought a general plan amendment, zoning amendment, tentative parcel map, site plan permit, conditional use permit, and variance.
Some five months later, in February 2007, the city planning commission recommended denial of the application. The owners sought review by the city council. At a meeting of the city council on July 24, 2007, a resolution was approved denying the application.
4. The Ensuing Litigation
Within 40 days, on August 29, 2007, the owners filed suit in federal court. They alleged, among other claims, inverse condemnation based on the spot zoning of the property. A number of city officials were added as nominal defendants. The federal court granted a motion to dismiss, but with leave to amend. After the owners amended their complaint in federal court, they filed this action in state court and dismissed the federal action.
There is no argument on appeal that the dismissal with leave to amend by the federal court has any sort of preclusive effect. The City accepts that the August 29, 2007 filing date in federal court is the one on which the litigation commenced for purposes of the statute of limitations. (See 28 U.S.C. § 1367(d).)
The parties agreed to an order bifurcating the trial. The trial court was first to consider the owners' request for administrative mandate. Remaining issues were to be decided in a second phase.
The writ of mandate phase was heard by Judge Stock. Her statement of decision reached three major conclusions:
(1) The City did not give adequate notice of the downzoning of the property via the imposition of the 1993 and 1996 RVL restrictions to the owners. What notice was given to the general public was either in the San Clemente Sun Post, or posted at City Hall. Judge Stock found it was practically impossible for the owners to discover "anything that had to do with the prospective down-zoning of their property." The City never circulated any map showing that downzoning "prior to the adoption of the amendments." A review of a 32,000-page administrative record showed that no "draft general plan map had ever been published" as part of the City's activity "leading up to the approval" of the general plan amendments " so as to allow even a casual observer to notice that the Avenida San Juan property was going to be zoned as RVL." In fact, Judge Stock "manually searched through over 500 pages of that general plan draft with the marked-up version, and found no reference therein to the RVL designation." Citing Harris v. County of Riverside (9th Cir. 1990) 904 F.2d 497, much of Judge Stock's statement of decision was devoted to explaining that the lack of notice in fact constituted a due process violation.
(2) The RVL restrictions were arbitrary and capricious as applied to the property. The restrictions created "an isolated area that has become an island of minimum lot size zoning in a residential ocean of substantially less restrictive zoning." An examination of the administrative record reveals "no findings or support at any level in the general plan amendment process for tying the RVL designation to the subject property." In practical effect, the property had been rezoned from low density residential allowing four houses to an Open Space-4 designation, i.e., one house on 20 acres. Judge Stock also wrote that the "small number of homes contemplated on the parcel would add a mere four houses' worth of traffic," but "there are no issues of buffer zones or any other unique facts that call for this parcel to remain a residentially-landlocked island." Moreover, the amount of grading and retaining walls required were insufficient "to overcome the constitutional deficiencies inherent in the adoption of the General Plan Amendment which led to the mandatory adoption of the zoning Ordinance in 1996."
Judge Stock in fact noted that one of the senior staff for the City had observed that the original title of RVL was Open Space-4, but the staffer thought the designation was too obvious since it may send "the wrong message."
(3) The owners' suit was timely under the applicable statute of limitations. Following Travis v. County of Santa Cruz (2004) 33 Cal.4th 757 (Travis), Judge Stock held that the appropriate statute of limitations was the 90-day period established by Government Code section 65009, subdivision (c)(1)(E). (All further undesignated statutory references are to that Code.) The owners filed suit within 90 days of the City's July 24, 2007 decision.
The ensuing writ of mandate filed September 10, 2009, (1) declared the City's resolution denying the owner's land use application null and void; (2) ordered the City to adopt a new resolution vacating the earlier resolution denying the owners' application; and (3) ordered the City to file a return to the writ within 60 days showing the City complied with the writ's terms. The City took the position that it was going to contest the writ in an appeal. The trial court stayed the writ in early December.
ii. inverse condemnation trial
Phase two commenced in mid-December. Trial included a site visit by Judge McEachen, testimony from 13 witnesses, and numerous exhibits. On February 1, 2010, Judge McEachen issued a statement of decision and judgment finding that the City had deprived the owners of all economically viable use of the parcel.
Judge McEachen specifically rejected the City's various reasons for zoning the property RVL, finding the parcel is not a canyon, as the City claimed, and there was no evidence of "negative geotechnical data." In fact the court noted that the land's "stability" was shown by a nearby cliff that faces the street without a retaining wall, and there was nothing unusual about the parcel's topography. The vegetation was the same chaparral and brush that is typical of all of Southern California. The trial court found the real reason for the RVL zoning was the City's desire to keep the property as open space.
Judge McEachen also specifically found "bad faith" in the City's handling of the owners' 2006 development application. He wrote: "Even though Plaintiff asked for a general plan amendment and a zoning amendment, the denials were all illogically 'based' on the fact that the application did not comply with the general plan and zoning ordinances." In essence, the City never gave any serious consideration to the owners' application. Under the heading "City's Bad Faith Handling of Plaintiff's 2006 Development Application," he wrote: "With the September 1, 2006 application, Plaintiff submitted a proposed tentative parcel map which is substantially similar to Tentative Parcel Map 82-832 [the one conditionally approved back in 1983]. However, the application was rejected first by Mr. Nicholas [an associate City planner], then by the City's Planning Commission, then by the City Council. Even though Plaintiff asked for a general plan amendment and a zoning amendment, the denials were all illogically 'based' on the fact that the application did not comply with the general plan and zoning ordinances. Also, Mr. Nicholas wrote in at least two reports that since his recommendation to deny the application was based on its nonconformity to the general plan and zoning ordinances, 'staff did not complete any further review,' meaning no real investigation occurred. Therefore, City had zero evidence for a finding that the proposed development was somehow physically unsuitable." (Italics added.) Judge McEachen further found that the City's land use officials had ignored the City's own ordinances which seek to promote cooperation with local landowners so as to come to a balanced accommodation of interests.
The judge elaborated on the City's underlying purpose to keep the property open space: "City targeted the Property for the stated purpose of 'protecting open space,' thus forcing Plaintiff to bear a public burden which should be borne by the public as a whole. Although City retained the authority to further amend the general plan and zoning ordinances, it held fast to its RVL zoning decision, instead of correcting this injustice."
Not surprisingly, Judge McEachen found a regulatory taking of the parcel by the City. He used what is often called the Penn Central factors approach. Judge McEachen enumerated no less than nine factors all pointing in the direction of a taking: (1) The major loss of use of the property as the result of the government action, (2) the loss of investment backed expectations from what they had been at the time of acquisition, (3) the arbitrariness of the rezoning, (4) the unequal treatment of the subject parcel in comparison with the surrounding properties, (5) the fact that the City's action was prompted by the desire of the neighbors to keep the subject parcel as complete open space, (6) the City's core motivation for the downzoning was to keep the subject parcel as open space, (7) the City's attitude of being substantively against any development of the property, (8) the absence of any action by the City to mitigate the financial burdens imposed by the downzoning, and finally, (9) the fact that the downzoning had clearly prevented the "best use" of the land (which would be four lots, not one).
Judge McEachen then calculated the amount of just compensation. There was evidence its fair market value was $2.8 million if developable with four lots. From that $2.8 million he deducted the cost of the cul-de-sac road. The judge took the cost estimate for the road from the City's cost expert at about $1.5 ...