[CERTIFIED FOR PARTIAL PUBLICATION[*]]
[As modified June 24, 2015.]
APPEAL from a judgment of the Superior Court of Stanislaus County, No. 680294 Hurl W. Johnson III, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Nicholas Honchariw for Plaintiff and Appellant.
Shute, Mihaly & Weinberger, Matthew D. Zinn, Laura D. Beaton; John P. Doering, County Counsel, and Thomas E. Boze, Deputy County Counsel, for Defendants and Appellants.
Plaintiff contends the trial court erred when it applied the 90-day statute of limitations contained in Government Code section 66499.37 to his inverse condemnation action and concluded the action was untimely. Plaintiff argues California law allows him to postpone bringing a complaint for just compensation until after he successfully challenged the local government’s land use decision in a mandamus proceeding.
We conclude that the 90-day statute of limitations in section 66499.37 applies to the inverse condemnation action. (Hensler v. City of Glendale (1994) 8 Cal.4th 1 [32 Cal.Rptr.2d 244, 876 P.2d 1043] (Hensler).) While we agree with plaintiff that a land owner may elect to pursue a damage claim for an unconstitutional taking after a mandamus proceeding results in a final judgment, the initial mandamus action must result in “a final judgment establishing that there has been a compensable taking of the plaintiff’s land.” (Id. at p. 7.) Here, plaintiff’s mandamus action did not seek to establish an unconstitutional taking occurred when the county denied his subdivision application. Therefore, plaintiff does not qualify for the two-step procedure identified in Hensler. As a result, the unconstitutional taking claim in his inverse condemnation action is time barred under section 66499.37.
As to the cross-appeal involving the denial of sanctions against plaintiff, we conclude the trial court correctly determined plaintiff’s complaint was not frivolous.
We therefore affirm the judgment of dismissal.
FACTS AND PROCEEDINGS
Plaintiff Nicholas Honchariw proposed to divide a 33.7-acre parcel of land in the Knights Ferry area of Stanislaus County into eight residential parcels and one undeveloped parcel. In connection with this proposal, Honchariw submitted a vesting tentative map application to the planning commission of the County of Stanislaus.
In February 2009, the planning commission considered Honchariw’s application and his request for an exception to the county’s rule requiring that all subdivision lots be connected to a public water system whenever such a system is available. The planning commission voted to deny Honchariw’s application and the request for an exception.
Honchariw filed an administrative appeal. In March 2009, the Board of Supervisors of the County of Stanislaus (Board) voted to disapprove the subdivision project application and to deny the request for an exception to the rule requiring connections to an available public water system. The Board did not make any of the findings specified in subdivision (j) of section 65589.5 (i.e. that the project would have a specific, adverse impact and there is no satisfactory method to mitigate or avoid that adverse impact).
In June 2009, Honchariw filed a petition for administrative mandamus, challenging the Board’s disapproval of his application.
The superior court denied the petition, concluding that the Board was not required to make written findings under subdivision (j) of section 65589.5 when it denied the application.
In November 2011, we reversed the superior court’s judgment and ordered the court to issue a writ of mandate directing the Board to vacate its denial of Honchariw’s subdivision project application, reconsider the application, and make certain determinations and findings in the event that it again denied the application. (Honchariw v. County of Stanislaus
(2011) 200 Cal.App.4th 1066, 1081-1082 [132 Cal.Rptr.3d 874].)
In January 2012, the superior court issued the writ of mandate and directed the Board to file a return to the writ within 90 days. The Board’s initial return was filed in April 2012 and stated that the hearing on its reconsideration of Honchariw’s vesting tentative map application would be held in May 2012.
On May 22, 2012, the Board approved the project.
In December 2012almost seven months after the approvalHonchariw filed a complaint against the County of Stanislaus and the Board (collectively defendants) that alleged they were liable for inverse condemnation and for violating his right to substantive due process. Honchariw alleged the Board’s May 2012 approval of his application ended the temporary taking of his property without just compensation. He sought damages of $2.5 million for the alleged taking.
In October 2013, after successive successful demurrers, Honchariw filed a second amended complaint (SAC), which again asserted causes of action for inverse condemnation and deprivation of substantive due process rights. The SAC is the operative pleading for purposes of this appeal.
Defendants again demurred based on the 90-day statute of limitations contained in section 66499.37.
In December 2013, the superior court sustained the demurrer without leave to amend, concluding that the ...