Opposition Brief — Long Beach Equities, Inc. v. County of Ventura

Supreme Court brief1992

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wuprenie LOU, Ud

FILED

&? j YAN 24 1992 |

No. 91-1076 | eFrice ¢ coe Chen |

In the Supreme Court

of the United States

October Term, 1991

LONG BEACH EQUITIES, INC.,

Petitioner,

VS.

COUNTY OF VENTURA, CALiFORNIA, and

CITY OF SIMI VALLEY, CALIFORNIA,

Respondents.

BRIEF OF RESPONDENT

CiTY OF SIMI VALLEY IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

John Torrance, City Attorney Katherine E. Stone *

Marjorie Baxter, Assistant Philip A. Seymour

City Attorney Freilich, Stone, Leitner & Carlisle

City of Simi Valley 11755 Wilshire Boulevard, Suite 1230

2929 Tapo Canyon Road Los Angeles, California 90025

Simi Valley, California 93063 (310) 444-7805

(805) 583-6700 * Counsel of Record

for Respondent

City of Simi Valley, California

Westside Law Publishers Los Angeles, California (310) 207-0272

QUESTIONS PRESENTED

The questions framed by the petitioner seriously

misstate the facts of this case; the questions are more

properly stated below.

Whether the City of Simi Valley's land use

regulations which permit development of

approximately three hundred twenty-five

(325) residential units on petitioner's two

hundred fifty (250) acres are facially

unconstitutional.

Whether petitioner's as applied claims are

ripe for judicial review where petitioner

never applied to annex to or develop in the

City.

Another issue briefed, but not addressed by the

lower courts is:

Whether petitioner's facial claims are barred

by statutes of limitation.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........c20ee000, i

TABS GP CR reeee ko Se hee eee aes il

lg | SPS ere ee ee Or ere oe Vv

TABLE OF AUTHORITIES CITED ............ vi

BRIEF OF RESPONDENT CITY OF SIMI

VALLEY IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI ........... l

CRIN TA Cg 6 cd 88S ee eee l

pb ik fg 6 erm T Om, ni th me ee l

CONSTITUTIONAL AND STATUTORY

Pu Vee 6 0 ca kc kee ee eee l

STATEMENT OF THE CASE .....ccscvdcesccn 2

A. ee 2

B. Statement Of The Facts ........... 2

[ Petitioner Misstates The Facts....... 4

REASONS WHY THE WRIT SHOULD BE

to. |) ) eer cr es Ait ee ier ses 6

pg 8 5 8 oy) betsy ho AS YA LO sr 6

THE STATE COURT’S DECISION DOES NOT

CONFLICT WITH THE APPLICABLE

DECISIONS OF THIS COMURE «..cnncceus 7

ili

A. The Alleged Facts In This Case Do

Not Come Close To The Limits Of

I, ia or es oo.

A The State Court Followed This

Court’s Guidance When It Found that

the Local Land Use Regulations Do

Not Constitute a Facial Taking ......

a. The State Courts examined the City

and County regulations and found

that they substantially advance

legitimate state interests ..........

b. The State Courts examined the City

and County regulations and found

that they do not foreclose all

Civ eug soak 600s

2. The State Courts Followed This

Court’s Guidance in Holding LBE’s

“As Applied” Claims Not Ripe for

EE og on 'wc wun eu 68-00

II.

LBE’S CONSTITUTIONAL CLAIMS ARE ALSO

Ill.

THE STATE COURT FOLLOWED THIS

COURT’S GUIDANCE IN DETERMINING

THAT THE CITY’S REGULATIONS DO

NOT VIOLATE LBE’S SUBSTANTIVE

DUE PROCESS RIGHTS ..............

IV.

THE PETITION DISCLOSES NO SPECIAL AND

IMPORTANT REASONS FOR GRANTING

REVIEW IN THIS CASE ............. 16

A. The Case Provides No Genuine

Opportunity to Define “Economically

WE oe on wae eben awake ts 16

B. The Case Involves No Important

Issue as to the Legitimacy of

Governmental Regulations ........ 17

1. The Case Provides No Genuine

Opportunity to Define “Economically

WE ES oe h ess eeabecn ae 17

- The Case Involves No Important

Issue as to the Legitimacy of

Governmental Regulations ........ 18

3. This Case Presents No Bona Fide

Issue of Frustrated “Reasonable

Investment-Backed Expectations” ... 19

ed This Case Presents No Close Issue of

MD. sv ono oe eb eee ae ee da we 21

GEMM so cavesent Suet esau ss wae 25

TABLE OF APPENDIX

Page

Appendix 1

Notice of Entry of Judgment filed

fe PP ree eee Cre ere A-1

Appendix 2

Excerpts of January 17, 1989 transcript of the

public hearing regarding general plan

amendment screening by the Board of

er ry Per erie ere A-5

Appendix 3

City of Simi Valley growth management ordinance,

SM ok oe do wean dae we A-9

TABLE OF AUTHORITIES CITED

Cases Page(s)

Agins v. Tiburon,

447 U.S. 255 ... 2, 8, 10, 15, 17, 18, 19, 22, 24

Avco Community Developers, Inc. v. South Coast

Regional Comm.,

17 Cal.3d 785 (1976), cert. denied

GD Gas BE a 6 cane tedcstncdecnyases 21

Barancik v. County of Marin,

872 F.2d 834 (9th Cir. 1988), cert. denied

fs eis Ff. reer rr ere 13, 14

Bateson v. Geisse,

857 F.2d 1300 (9th Cir. 1988) ............ 14

Berman vy. Parker,

SG UB. SACRO cv ccccesicans 10, 16, 18

California Coastal Commission v. Superior Court (Ham),

210 Cal.App.3d 1488 (1989) ............. 13

City of New Orleans v. Dukes,

Gay ULE Bee CHPOEe kt wckevns 9-10, 15, 18

Connolly v. Pension Benefit Guaranty Corp.,

GTS GE Bae GPO 1 6 + hod 40 bn chneeuns 20

De Anza Properties X, Ltd. v. County of Santa Cruz,

936 F.2d 1084 (9th Cir. 1991)......... 13, 14

Eide v. Sarasota County,

908 F.2d 716 (11th Cir. 1990), cert. denied

SRE BAR: Cie Gee in occ teushhease eas 11

Elysium Institute, Inc. v. County of Los Angeles,

232 Cal.App.3d 408 (1991) ...........45. 8

First English Evangelical Church of Glendale v. County

of Los Angeles,

210 Cal.App.3d 1353, cert. denied

120 S.C, O66 CIDOB) o.oo cnc cc ccveces 24

Vii

First English Evangelical Church of Glendale v. County

of Los Angeles,

ee I ce wesc e canes 6, 8, 24

Gilbert v. City of Cambridge,

932 F.2d 51 (Ist Cir. 1991) ....... 11, 12, 23

Hodel v. State of Indiana,

Ge Gs SP ONUEED Skee cccccccneccsne 18

Hoehne v. County of San Benito,

870 F.2d 529 (9th Cir. 1989) ............ 23

Kaiser Development Co. v. City and County of Honolulu,

649 F.Supp. 926 (D. Haw. 1986), affirmed

I ry rene ee 12

Keystone Bituminous Coal Assoc. v. DeBenedictus,

480 U.S. 470 (1987) ........... 6, 8, 18, 22

Kinzli v. City of Santa Cruz,

818 F.2d 1449 (9th Cir. 1987), cert. denied

Soe Gs Be CEE 6 ccc cc necacdees 12, 23

Kirby Forest Products, Inc. v. United States,

er kc n dc du es wabennsaeas 20

Landmark Land Company v. Buchanan,

874 F.2d 717 (10th Cir. 1989)......... 11, 23

MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340 (1986) 2... ween 11, 12, 22

McDougal v. County of Imperial,

942 F.2d 668 (9th Cir. 1991) ......... 18, 19

Nollan v. California Coastal Commission,

errr rer 6, 8, 19

Norco Construction, Inc. v. King County,

810 F.2d 1143 (9th Cir. 1986)............ 23

Pardee Construction Co. v. City of Camarillo,

Pee ee ere 21

Penn Central Trans. Co. v. City of New York,

ee Ws BP URUOED cc wececdecnnese 16, 18

vill

Philips Petroleum Co. v. Mississippi,

es CUED eke cccestacdecccesn 20

Rohn vy. City of Visalia,

214 Cal.App.3d 1463 (1989) .............. 8

Rossco Holdings, Inc. v. State of California,

212 Cal.App.3d 642 (1989), cert. denied

Sy DE os ccs cee ecceseece 13

Ruckelshaus v. Monsanto Co.,

re nD vs kenscbeneséecacs 20

Selby Realty Co. v. City of San Buenaventura,

oe 8 8 fer rrr ere 21

Surfside Colony, Ltd. v. California Coastal Commission,

226 Cal.App.3d 1260 (1991) .............. 8

Twaine Harte Associates, Ltd. v. County of Tuolumne,

MET GAS FE GRUUED ccc ccccccescece 8

United States v. Riverside Bayview Homes, Inc.,

oo rm

Unity Ventures v. County of Lake,

841 F.2d 770 (7th Cir. 1988), cert. denied

PPE tcrh then vies eeenee Canes 11

Village of Belle Terre v. Boraas,

eS GE bs ckanecvaseuass 9, 15, 18

Village of Euclid, Ohio v. Ambler Realty Co.,

BEE Gs PP GUM wee cccaccceen 9, 18, 22

Webb's Fabulous Pharmacies, Inc. v. Beckwith,

er PE ads bokeh a ede bes obs 20

Williamson County Regional Planning Comm. vy.

Hamilton Bank,

TS oh a Oe 11, 22

Yost v. Thomas,

EE CD i oo hs bh Sw wea wes 3

Zinermon v. Burch,

ee ee io 5 4 6 bw ool ee 13

STATUTES

42 U.S.C.

PE ee re 14

California Code of Civil Procedure

ae ls ls oaks be hes bes 6 oA 2

California Evidence Code

I ee. aa ey so yin ede ee oe 2

TS ee aa 2

California Government Code

tera at LL ei ot Se 4

Cr eR rn VU eh aera in ee 13

oer a kao c, Ler sh 2 a 3

I ns ce lg ag sehr 3

a ei ne 3,4

BRIEF OF RESPONDENT CITY OF SIMI VALLEY

IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

There are no special and important reasons for

granting review in this case, and the petition materially

misstates the facts, and misrepresents the law decided by

the state courts.

OPINIONS BELOW

The petition fails to disclose that following the

decision of the California Court of Appeal, granting the

City of Simi Valley’s (“City”) petition for a writ of

mandate, the remittitur was issued on October 1, 1991 and

the trial court entered judgment in favor of the City on

December 2, 1991. (Appendix 1.) Petitioner has not

appealed this judgment to the state appellate courts.

JURISDICTION

Jurisdiction is lacking because:

] The as applied claims are not ripe for

judicial review; and

2 The petitioner has not exhausted its state

court appeals from the trial court’s judgment

entered January 3, 1992.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The City’s growth management ordinance,

Ordinance No. 638 is Appendix 3.

STATEMENT OF THE CASE

A. Procedural History.

The state courts decided this case on the complaint

and matters of which it may and did take judicial notice.’

The demurrer of the County of Ventura (“County”) was

sustained by the trial court and an appeal taken. The

demurrer of the City was sustained in part and overruled in

part by the trial court. The California Court of Appeal

granted the City’s petition for an extraordinary writ to

review the overruling of the City’s demurrer to certain

causes of action.? After the Court of Appeal issued its

final opinion (Petition, Appendix D) and the California

Supreme Court denied review (Petition, Appendix E), the

remittitur issued from the Court of Appeal to the trial court

and judgment was entered on January 3, 1992

(Appendix 1). Petitioner has not exhausted its state court

appeals from this judgment.

B. Statement Of The Facts.

In 1969 the County of Ventura adopted annexation

policies (the Guidelines for Orderly Development) which

' California Evidence Code §§ 452-453; California Code of

Civil Procedure § 430.30; see Agins v. Tiburon, 447 U.S. 255, 259

n.6 (1980). The California courts took judicial notice of City and

County ordinances, plans, resolutions and other official acts of the

City and the County. Petition, Appendix C, p. 3; and Appendix F,

pp. 2-4 and 6.

2 The demurrer was sustained without leave to amend for the

third, fourth and fifth causes of action and overruled as to the first

cause of action (inverse condemnation), second cause of action

(denial of substantive and procedural due process), and sixth cause of

action (declaratory and injunctive relief). See Petition, Appendix F,

p. 6.

directed urban development into incorporated areas in order

to conserve County resources, ensure the availability of

municipal services and prevent urban sprawl. See

California Government Code § 65859.

In 1984 Long Beach Equities (“LBE”’), a holding

company of a bank, allegedly purchased two hundred fifty

(250) acres of the two thousand eight hundred (2,800) acre

Marr Ranch which is one of many large ranches near the

City of Simi Valley within the City’s sphere or area of

influence. The City’s general plan covers these

unincorporated areas. In 1984 the City’s then existing

general plan showed intense future development for the

Marr Ranch area. (One thousand one hundred (1,100)

residential units and a shopping center.) The City adopted

hillside grading restrictions and a ten (10) year growth

management program in 1986, and a revised general plan

The density and intensity of development was reduced City-

wide and in its sphere and area of influence, including the

Marr Ranch, as a result of these actions. A _ brief

development moratorium was in effect while the City

studied planning alternatives. See California Government

Code § 65858.

After purchaséng the two hundred fifty (250) acres

in 1984 LBE took a preliminary steps towards annexation

by proposing a specific plan for the Marr Ranch.’ Because

there are multiple ownerships within the Marr Ranch the

City became the applicant for the specific plan. The draft

> A specific plan is a legislative act, Yost v. Thomas,

36 Cal.3d 561 (1984). It is a traditional planning tool authorized by

the California Legislature over twenty-five (25) years ago for the

“systematic implementation” of a general plan. California

Government Code § 65451.

specific plan was revised after the hillside development

restrictions went into effect. When the City began its

general plan revision (and adopted a development

moratorium), LBE ceased pursuing annexation to the City.

The City’s revised general plan adopted in 1988 permits

three hundred twenty-five (325) residential units on LBE’s

two hundred fifty (250) acre parcel. In 1984, LBE

attempted to file a subdivision map with the County for two

hundred forty-nine (249) units. In accordance with its long

existing annexation policies the County told LBE it must

first annex to the City before subdividing the property for

urban development.

LBE has never applied to annex to or develop in the

City of Simi Valley.

A Petitioner Misstates The Facts.

Even with the liberality afforded pleading cases by

both California and federal courts, petitioner’s statement of

the case to this Court is out of bounds. The statement not

only misrepresents the actual facts and opinion below and

facts of which the California courts may and did take

judicial notice, the statement also misrepresents the facts as

pleaded in petitioner's own complaint. For example:

1. Petitioner now claims, but did not allege in its

complaint, that it only purchased the property “after both

the County and the City assured LBE that both entities

believed that the property was uniquely suited for

immediate development.” Petition, p. 2.

Before the property can be developed, the area must

be annexed to the City pursuant to California Government

Code §§ 56000 et seq. The property may be “prezoned” as

a first step. California Government Code § 65859. LBE

never applied to prezone the land or annex to the City.

Before development can occur petitioner must also submit

applications for approval of a development plan, a

subdivision map and building permits.

2. Petitioner now claims but did not allege that “at

the City’s request LBE prepared a Specific Plan.” Petition,

p. 2, | 2; emphasis added.

This is not alleged in the complaint. In 1984 LBE

prepared a draft specific plan. LBE abandoned the specific

plan and has never petitioned to annex to the City or made

any development application to the City.

3. “[A]t the City’s encouragement and request LBE

paid to have infrastructure being installed in the

neighboring development [oversized].” Petition, p. 3.

This is nowhere alleged and is completely false.

Paragraph 25 of the first amended complaint alleges that

“({E]ncouraged by the Defendants, Long Beach Equities

cooperated in paying for the oversizing of the infrastructure

installed through the residential development immediately

adjacent and to the south of the 250 acre parcel... .”

There is no infrastructure to service urban development on

LBE’s property.

4. “The City imposed a moratorium. . . and stopped

processing the Specific Plan for this property.” Petition,

p. 3.

The long expired moratorium (in 1987) did not

apply to LBE’s specific plan. The moratorium only applied

to development permits, not legislative acts such as specific

plans and zoning. LBE simply abandoned the specific plan

and never pursued annexation to the City.

5. “But the City won’t process that application [for

two hundred forty-nine (249) homes] until LBE prepares a

new Specific Plan... .” Petition, p. 3.

This is a complete falsehood and not alleged in the

complaint. LBE never submitted its subdivision proposal

to the City and development permits. The City will accept

applications for annexation, a specific plan if only LBE

would submit one.

6. “City employees told the County Board of

Supervisors that it would take 8 to 10 years for LBE to

complete the Specific Plan/EIR process now demanded and

then obtain project approval, and then seek some of the few

building permit allocations now permitted under the City’s

slow ‘growth ordinance.’” Petition, p. 3.

LBE misrepresents the comments of an assistant

City planner at a County Board of Supervisors public

hearing. The planner said the City’s growth management

program is a ten (10) year program, not that it would take

LBE ten (10) years to develop in the City. See Appendix 2.

REASONS WHY THE WRIT SHOULD BE DENIED

INTRODUCTION

While many important questions may have been left

unanswered by this Court’s 1987 regulatory takings

decisions,‘ this is not the case to answer them. Under even

the most conservative interpretation of takings

jurisprudence, a land use regulation that allows three

hundred twenty-five (325) units on two hundred fifty (250)

* — Keystone Bituminous Coal Assoc. v. DeBenedictus, 480 U.S.

470 (1987); Nollan v. California Coastal Commission, 483 U.S. 825

(1987); First English Evangelical Church of Glendale v. County of

Los Angeles, 482 U.S. 304 (1987).

acres of ranch land does not on its face constitute a taking

of private property without just compensation, and a

developer must at least try to annex to and develop in the

City before claiming it would be futile to do so. The City’s

growth management program (Appendix 3) which permits

substantial development each year does not on its face

prohibit LBE from developing; LBE cannot be put in a

better position than other potential developers by refusing

to even apply to annex fo or for permission to develop in

the City.

Even if petitioner’s constitutional claims had some

merit and even if the California court erred in its analysis,

the outcome of this case would be the same because

petitioner’s facial challenges to the City’s regulations are

barred by statutes of limitation and the City has not applied

it regulations to petitioner’s property.

THE STATE COURT’S DECISION DOES

NOT CONFLICT WITH THE APPLICABLE

DECISIONS OF THIS COURT

A. The Alleged Facts In This Case Do

Not Come Close To The Limits Of

Police Power.

Even if there is confusion in the lower courts about

the meaning of “economically viable use of property” this

is not the case to dispel it. The state appellate court

correctly stated this Court’s standard for takings analysis:

“To state a cause of action for inverse

condemnation LBE must plead facts which

show either that: (1) the application of the

general zoning laws to its property does not

substantially advance a legitimate state

interest, or (2) such laws deprive it of

substantially all economically viable use of

its land.”* Petition, Appendix C, p. 10;

emphasis added.

California courts have not hesitated to tell state and

local governments when they exceed their police powers.°

On its facts, this case does not present any important

question for this Court’s review.

1. The State Court Followed This Court’s

Guidance When It Found that the

Local Land Use Regulations Do Not

Constitute a Facial Taking.

a. The state courts examined the

City and County regulations

and found that they

substantially advance

legitimate state interests.

The state court took judicial notice of and examined

the City and County regulations and found that both the

County’s Guidelines for Orderly Development and the

> E.g., Agins, 447 U.S. 255, 261; Nollan, 483 U.S. 825;

Keystone, 480 U.S. 470; and First English, 482 U.S. 304.

® E.g., Surfside Colony, Ltd. v. California Coastal

Commission, 226 Cal.App.3d 1260, 1267-1269 (1991) [applying

Nollan); Twaine Harte Associates, Ltd. v. County of Tuolumne,

217 Cal.App.3d 71, 80-92 (1990) [denial of use of parcel]; Rohn v.

City of Visalia, 214 Cal.App.3d 1463, 1472-1477 (1989) [illegal

exaction]; Elysium Institute, Inc. v. County of Los Angeles,

232 Cal.App.3d 408 (1991) [equal protection].

City’s growth management program substantially advance

legitimate state interests. The Court of Appeal observed:

“The County enacted the Guidelines to

promote efficient and effective delivery of

community services and to conserve the

resources of County by encouraging urban

development to occur within cities. The

Guidelines emphasize annexation as a means

to accomplish these purposes.

“City enacted its ordinance ‘to

protect the unique, _ hill-surrounded

environment; enhance the quality of life;

promote public health, safety or welfare and

the general well-being of the

community....’ By limiting the rate,

distribution, quality and type of residential

development on an annual basis, with

periodic reviews of the ongoing situation,

City seeks ‘to improve local air quality,

reduce traffic demands . . . and ensure that

future demands for such essential services as

water, sewers and the like are met... .””

Petition, Appendix C, p. 11; emphasis added.

The state court’s recognition that “such legislative

action is well designed to prevent the ill effects of poorly

planned urbanization” (Petition, Appendix C, p. 13) is one

that this Court has repeatedly acknowledged. E.g., Village

of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 392-

395 (1926); Village of Belle Terre v. Boraas, 416 U.S. 1,9

(1974); Agins, 447 U.S. 255, 261. As often noted by this

Court, such legislative determinations are the province of

the legislative bodies, not the courts. City of New Orleans

v. Dukes, 427 U.S. 297, 304 (1976); Berman v. Parker, 348

U.S. 26, 32-33 (1954).

b. The state court examined the City and

County regulations and found that

they do not foreclose all development.

The City’s regulations which permit LBE three

hundred twenty-five (325) units on two hundred fifty (250)

acres do not on their face deny “economically viable use”

of LBE’s property. Agins, 447 U.S. 255, 262 [maximum of

one (1) unit per acre]. This general plan designation allows

more density than the two hundred forty-nine (249) units

LBE allegedly desires. Cf., Petition, p. 3.

The state court correctly observed that the City and

County regulations “do not rule out development upon

annexation.” Petition, Appendix C, p. 22. The City growth

management ordinance, of which the state courts took

judicial notice, does not on its face require that

development be delayed. In fact certain types of housing

(e.g., affordable) are given priority. Appendix 3, p. 4, § 7.

“If LBE successfully applied for annexation it could explore

other possibilities for development under the growth

management ordinance.” Petition, Appendix C, p. 18.

Interesting questions as to the precise meaning of

“reasonable investment back expectations,” “economically

viable use” or “ripeness” are not justiciable in this case.

2. The State Courts Followed This

Court’s Guidance in Holding LBE’s

“As Applied” Claims Not Ripe for

Judicial Review.

LBE has never presented any development plans

upon which the City might act. It would be a novel idea

indeed to hold that the City may be held accountable for a

regulatory “taking” of property over which it has absolutely

no legal jurisdiction or regulatory control. The City has no

such power until the property is annexed to the City.

LBE did take a very preliminary step toward

annexation by proposing a specific plan in 1984. LBE does

not allege that this specific plan was ever formally rejected

by the City. LBE has never actually applied to annex to

the City. Having failed to pursue annexation or submit and

pursue to conclusion any application to develop in the City,

LBE lacks the essential element of an “as applied” claim —

a final decision reflecting the City’s actual application of

its regulations to the property.

Since Williamson County Regional Planning

Comm. v. Hamilton Bank, 473 U.S. 172, 189-191 (1985),

it has been recognized by this Court and all the circuit

courts that failure to seriously pursue development

approvals through available lega! channels is a jurisdictional

bar to an “as applied” taking claim.’ These cases rest upon

See e.g., MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340, 351-352 (1986); Gilbert v. City of Cambridge, 932

F.2d 51, 61 (Ist Cir. 1991); Eide v. Sarasota County, 908 F.2d 716,

723-727 (11th Cir. 1990), cert. denied 111 S.Ct. 1073 (1991);

Landmark Land Company v. Buchanan, 874 F.2d 717, 721-722 (10th

Cir. 1989); Unity Ventures v. County of Lake, 841 F.2d 770, 774-776

(continued...)

important practical as well as jurisdictional restrictions. “A

court cannot determine whether a regulation has gone ‘too

far’ unless it knows how far the regulation goes.”

MacDonald, 477 U.S. 340, 348. They also rest on a

fundamental substantive restriction. Until a landowner’s

good faith efforts to actually develop (or otherwise utilize)

the property have been denied by the government, the

government has not taken the property. United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 126-127

(1985) [mere imposition of permit requirements not a

taking]; Gilbert, 932 F.2d 51, 61.

Ripeness is not a game invented to test a

landowner’s pleading ingenuity or adeptness at filing

pretextual development “applications.” Ripeness mandates

genuine efforts to comply with existing police power

regulations before the jurisdiction of the courts may be

invoked. LBE has made no such effort, and therefore has

no basis for claiming that its constitutional rights have been

denied. This case, contrary to LBE’s suggestion, does not

involve any fine points of the “ripeness” doctrine. LBE’s

claims are mainstream and dead center, precisely the type

of speculative, premature claims barred by the ripeness

doctrine.

(...continued)

(7th Cir. 1988), cert. denied 488 U.S. 891; Kinzli v. City of Santa

Cruz, 818 F.2d 1449, 1453-1455 (9th Cir. 1987), cert. denied

484 U.S. 1043 (1988); Kaiser Development Co. v. City and County of

Honolulu, 649 F.Supp. 926, 940-942 (D. Haw. 1986), affirmed

898 F.2d 112.

LBE’S CONSTITUTIONAL CLAIMS ARE

ALSO TIME BARRED

LBF’s challenges to the City’s land use regulations

are also inappropriate for this Court’s review because all of

LBE’s facial claims are barred by applicable statutes of

limitation. Though not addressed in the state court’s

opinion, the issue was raised and briefed in the City’s

petition for extraordinary relief.

The time limits for any facial taking claim run from

the time the challenged regulations are enacted.

Zinermon v. Burch, 494 U.S. 113 (1990) [substantive due

process violation is “complete when the wrongful action is

taken”); De Anza Properties X, Ltd. v. County of Santa

Cruz, 936 F.2d 1084, 1085-1086 (9th Cir. 1991);

Barancik v. County of Marin, 872 F.2d 834, 836 (9th Cir.

1988), cert. denied 110 S.Ct. 242 (1989). The statute of

limitations for any challenge to the City’s zoning or general

plan enactments is one hundred twenty (120) days.

California Government Code § 65009; see Rossco Holdings,

Inc. v. State of California, 212 Cal.App.3d 642, 565-661

(1989), cert. denied 110 S.Ct. 1809 (1990);* California

Coastal Commission v. Superior Court (Ham),

210 Cal.App.3d 1488, 1495-1496 (1989) [holding statutory

time limits for mandamus challenge also control inverse

*. Petitioner blatantly misrepresents the holding of Rossco Hold-

ings, 212 Cal.App.3d 642 by stating that this decision requires a

landowner to challenge the constitutionality of underlying statutes as

a prerequisite to challenging any zoning action. This is false. The

case merely states that any damages claim for a taking must be

brought within the same time period as a petition for writ of

mandate, i.e., the time for legal challenge on any other grounds.

condemnation challenges to land use regulatory actions].

The time limit for any facial challenge under 42 U.S.C.

§ 1983 in California is one year from the date of enactment.

De Anza Properties, 936 F.2d 1084, 1085; Barancik,

872 F.2d 834, 836.

The County Guidelines were adopted in 1969; the

City’s growth management ordinance in 1986, both more

than one (1) year before this action was filed. The general

plan amendment permitting three hundred (325) units on

LBE’s two hundred fifty (250) acres occurred in October

1988, more than one hundred twenty (120) days before the

City was named a defendant in this action.

Il.

THE STATE COURT FOLLOWED THIS

COURT’S GUIDANCE IN DETERMINING

THAT THE CITY’S REGULATIONS DO

NOT VIOLATE LBE’S SUBSTANTIVE DUE

PROCESS RIGHTS

This case presents no colorable issue of “arbitrary or

Capricious” regulation implicating substantive due process

concerns. This is not the case of an individual property or

property owner singled out for vindictive or irrational

treatment, a fact which serves to distinguish it from

virtually every case in which a violation of substantive due

process has been found. See, e.g., Bateson v. Geisse,

857 F.2d 1300 (9th Cir. 1988). Rather, LBE simply

speculates as to the effects of a number of city-wide and

county-wide planning policies (i.e., the City’s growth

management program, the City’s hillside zoniny ordinance,

the City’s comprehensive general plan revision, and the

County’s annexation policy.) The County’s annexation

policy had been in effect for fifteen (15) years before LBE

bought the property. While the density of development for

LBE’s property was reduced by the hillside zoning and

general plan revision, LBE fared no differently than many

other owners of undeveloped land, and retains the ability to

develop thiee hundred twenty-five (325) residences on its

property. To suggest that “malice” or some concealed

motive of “preventing development of LBE’s property”

(petition, p. 23) can be implied from these city-wide general

planning actions is simply ridiculous.

LBE apparently also suggests that any attempt to

downzone property is_ inherently “arbitrary and

Capricious” — at least where adequate infrastructure and

services are allegedly available — and should be subjected

to court scrutiny under a “balancing” test. This Court has

never suggested, however, that the legitimate function of

planning and zoning regulations is limited to determining

whether “‘adequate” sewer, water and other services are

available for a particular property. Government planners

must also obviously take into account the ability of regional

facilities and resources to serve all development in the area,

not merely development on the plaintiff’s land. Here the

City’s regulations were adopted, among other things, “to

improve local air quality, reduce traffic demands. . . and

ensure that future demands for such essential services as

water, sewers and the like are met... .” Petition,

Appendix C, p. 11. Limitations on development may also

be imposed for a variety of other reasons recognized as

legitimate by this Court. See, e.g., Village of Belle Terre,

416 U.S. 1, 9 [preserving quiet residential character]; Agins,

447 U.S. 255, 261i [discouraging “premature and

unnecessary conversion of open-space land” and protecting

residents from “ill-effects of urbanization’]; Dukes, 427

U.S. 297, 304 [preserving community character]; see also

Penn Central Trans. Co. v. City of New York, 438 U.S. 104,

129 (1978); Berman, 348 U.S. 26, 33 [community may be

“beautiful as well as healthy, spacious as well as clean,

well-balanced as well as carefully patrolled’’].

This is also not, as LBE attempts to characterize it,

a case of “refusal to permit development.” Petition, p. 23.

This is the case of a developer who has never seriously

applied for permission to develop under the locally

mandated procedures, i.e., annexation to the City and

application for development approvals through the same

channels as every other property owner in the City. The

City’s regulations on their face permit substantial

development once the property is annexed to the City.

IV.

THE PETITION DISCLOSES NO SPECIAL

AND IMPORTANT REASONS’ FOR

GRANTING REVIEW IN THIS CASE

The leitmotif of LBE’s petition is that the standards

for “taking” and other constitutional challenges to land use

regulations are unsettled. LBE does little, however, to

explain how the facts alleged in this particular case will

assist the Court to resolve these thorny issues.

A. There Is No Developed Factual

Record.

Because this case comes to this Court from a

dismissal at the pleading stage, there is no developed

factual record which would assist the court in realistically

addressing concrete land use issues of general concern. The

“record” consists of scattered factual allegations in LBE’s

complaint, embedded in literally scores of pages of

rhetorical vilification and characterization of the

respondents’ actions and a voluminous amount of

city/county documents of which the California courts took

judicial notice. At most this case presents pleading issues

under California law. Perhaps even this would be of some

interest to California land use lawyers, but it is unlikely to

provide any useful guidance or clarification of substantive

issues to government planners and officials, landowners, the

general public, or trial courts presented with genuine

constitutional issues. Consideration of this case would not

represent the best use of this Court’s time, even were the

purported constitutional issues raised by LBE fairly

presented.

B. This Case Implicates No Important

Unsettled Issue of Takings Law.

On it face, this case is nothing more than a garden

variety zoning case. Even assuming that issues remain to

be resolved in the area of takings clause jurisprudence, this

case offers scant opportunity to expand on existing case

law.

2 The Case Provides No Genuine

Opportunity to Define “Economically

Viable Use’.

The challenged land use regulations in ‘this case

provide for development of three hundred (325) units on

two hundred fifty (250) acres. Whatever, the outer

boundaries of “economically viable use,” they are plainly

not implicated by residential zoning in excess of one (1)

unit per acre. Cf., Agins, 447 U.S. 255, 262.

2. The Case Involves No Important Issue

as to the Legitimacy of Governmental

Regulations.

This case involves no novel issue regarding the

legitimacy of land use regulations. It merely involves the

time-worn claim that changes in local land use policies

might render the developer’s plans impractical. LBE does

not seriously contend that any of the stated purposes of

City’s and County’s regulations are illegitimate, nor could

it given well settled authority. See,Village of Euclid,

272 U.S. 365; Village of Belle Terre, 416 U.S. 1, 9; Agins,

447 U.S. 255, 261; Dukes, 427 U.S. 297, 304; Penn

Central, 438 U.S. 104, 129; Berman, 348 U.S. 26, 33.

Neither is this a case in which the regulations fail to

“substantially advance” their apparent goals. Rather the

purpose and effect — that of abating the consequences of

runaway development — are direct and to the point.

LBE also suggests that assessment of the legitimacy

and reasonableness of the respondent’s actions necessarily

requires a factual trial and a fine balancing of interests.

Petition, p. 12-13, citing McDougal v. County of Imperial,

942 F.2d 668, 679-680 (9th Cir. 1991). This argument

simply ignores the posture of the case. The only challenge

currently justiciable is a facial challenge to the City’s and

County’s general policies.’ In the context of facial

challenges, this Court has had little trouble resolving the

legitimacy of such challenged regulations. See, e.g., Agins,

447 U.S. 255; Keystone, 480 U.S. 470, 485-492; Hodel v.

State of Indiana, 452 U.S. 314, 327-329 (1981). In an

individual permit case, such as McDougal, 942 F.2d 668,

* Assuming the applicable statues of limitation are ignored.

the court may indeed have occasion to more closely

examine the relationship between purported government

objectives and the actual impacts of the regulation.

McDougal involved the imposition of particular

development restrictions and conditions, not promulgation

of general policies.

The challenged regulations in this case are neither

unduly harsh or unusual on their face—they permit

development of three hundred twenty-five (325) units on

LBE’s land—nor is there any apparent mismatching of ends

and means. Cf., Nollan, 483 U.S. 825. The regulations

limit the overall intensity of development on LBE’s land,

and elsewhere in the City and its sphere and area of

influence. This is precisely what they must do to serve the

obvious, permissible goals relating to air quality, water

supply, solid waste disposal and traffic congestion. This

Court cannot endorse plaintiff’s view that the legitimacy of

every planning action must be tested by a judicial trial.

Contrary to LBE’s view, the state court of appeal acted

correctly in this case in resolving the legitimacy issue as a

matter of law.

3. This Case Presents No Bona Fide Issue

of Frustrated “Reasonable Investment-

Backed Expectations.”

LBE contends that this Court has not exhaustively

examined or explained the significance of “reasonable

investment-backed expectations” in takings analysis. LBE,

however, remains free to develop its property for residential

development. Cf, Agins, 447 U.S. 255, 262 [owner

remains free to pursue “expectations” through permit

process]. The City and County policies requiring

annexation and preparation of a specific plan were in effect

long before LBE bought its property. LBE’s only possible

complaint is its speculation that it may not be able to build

as fast as it would like under the City’s growth

management program.

This Court has made it abundantly clear that

asonable investment-backed expectations” are significant

only when they are reasonable. Philips Petroleum Co. v.

Mississippi, 484 U.S. 469 (1988) [“We have recognized the

importance of honoring reasonable expectations in property

interests. [Citation.] But such expectations can only be of

consequence where they are ‘reasonable’ ones.” ];

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1006-1008

(1984).

Like the Fifth Amendment notion of “property”

itself, the “reasonableness of a landowners expectation” can

only be understood in the context of applicable state laws.

Cf., Ruckelshaus, 467 U.S. 986, 1001; Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980). In

an area subject to heavy ongoing governmental regulation

there can be no reasonable expectation that regulations will

remain frozen for a particular property owner’s benefit.

Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211,

226-227 (1986); Ruckelshaus, 467 U.S. 986, 1008-1010.

As this Court has indicated many times, exposure to

changing regulations is merely one of the inherent

“incidents” to property ownership; only where regulatory

changes are “substantial and unforeseeable, and can easily

be identified and redistributed” do they become significant

for takings purposes. Kirby Forest Products, Inc. v. United

States, 467 U.S. 1, 14 (1984); emphasis added. The

County’s annexation policies were in effect for over fifteen

(15) years before LBE purchased the property and most

cities in the County had already adopted some sort of

growth management program to address traffic and air

quality concerns. See Pardee Construction Co. v. City of

Camarillo, 37 Cal.3d 465 (1984).

Land use regulation is classically a field in which

current policies are subject to change. Under California

law, a general plan is by nature tentative and “subject to

alteration.” Selby Realty Co. v. City of San Buenaventura,

10 Cal.3d 110, 119-120 (1973). Also under California law,

a landowner generally accrues no right to rely on existing

zoning until all development permits have been granted.

Avco Community Developers, Inc. v. South Coast Regional

Comm., 17 Cal.3d 785, 791-797 (1976), cert. denied

429 U.S. 1083. The court below relied on this principle in

finding that no “reasonable investment-backed expectations”

of LBE’s were implicated by the city and county

regulations.

LBE is a sophisticated investment firm, well

schooled in the uncertainties of land use development. LBE

could have no “reasonable expectation” that it would be

exempted from the city-wide changes in zoning and

reevaluation of the general plan which occurred in 1984-

1988. Indeed, some of the policies LBE complains of (i.e.,

the County’s annexation policy and the City’s requirement

for a specific plan) were in place when LBE purchased its

property in 1984.

_ ba This Case Presents No Close

Issue of Ripeness.

LBE contends in its headline argument that “there is

hopeless confusion throughout the country on what it takes

to ‘ripen’ a regulatory taking case...” Petition, p. 23.

Somewhat paradoxically, LBE argues in the text that

determination of ripeness is inherently an ad hoc exercise

(ibid.), and hence one which defies the promulgation of

fixed judicial rules. If ripeness indeed requires an

inherently ad hoc determination, it can hardly be said that

reviewing the ad hoc analysis of the state court of appeal in

this case will lead to a major settling of the law in this area.

“Ripeness” considerations do not, of course, bar

facial challenges to governmental regulations. Keystone,

480 U.S. 470, 485-494; Agins, 447 U.S. 255, 260 [taking

claim]; Village of Euclid, 272 U.S. 365, 386. This was

recognized by the court of appeal in this case. Petition,

Appendix C, pp. 11 and 19.

“Ripeness” is a concern where the property owner

alleges that the actual application of otherwise valid

regulations will produce an unconstitutional result. LBE

has alleged no facts supporting such a claim. As this Court

has long recognized, such a case cannot be litigated until

the court has some idea of what the result of application of

the regulations will actually be. MacDonald, 477 U.S. 340,

349-351; Williamson County, 473 U.S. 172, 191. The

courts below have universally declined to accept a

plaintiff's mere speculations as to the future result, for

obvious reasons. Litigation of such a case can only result

in a trial of what might occur in the future, not what

actually has or will occur.

Instead of opening the courts to judicially sponsored

guessing games, the lower courts following MacDonald and

Williamson County have universally held that no concrete

controversy arises until there has been at least an actual

attempt to develop under the laws (generally manifested by

an actual application), and at least some affirmative

government action to deny development. See, e.g., cases

cited at note 7. Some decisions suggest that a concrete

controversy may be precipitated by affirmative

governmental acts other than formal denial of an

application, such as a preemptive rezoning or other action

specially calculated to defeat the application. Landmark

Land, 874 F.2d 717, 721-722; Gilbert, 932 F.2d 51, 61; cf,

Hoehne v. County of San Benito, 870 F.2d 529 (9th Cir.

1989) [rejected application followed by rezoning excused

further applications]. LBE, however, does not allege any

facts which even approach the threshold of ripeness. There

is no dispute that the mandated path to development in this

case was annexation to the City, and that LBE never

petitioned to annex.

LBE also contends that the development process

under the City’s jurisdiction might take too long. No facts,

however, support this allegation. The state court of appeal

examined the City’s actual regulations and found:

“Neither is it “‘clear beyond

peradventure that the Growth

Management Ordinance would result in such

excessive delay that it can be assumed that

all of the property’s beneficial uses have

presently been destroyed. (See Kinzli v. City

of Santa Cruz, supra, 818 F.2d at p. 1454,

fn.5, citing Norco Construction, Inc. v. King

County, 810 F.2d 1143, 1145 (9th Cir.

1986).) The instant temporary ordinance

calls for a reevaluation in 1991 of its

restrictions, pursuant to the 1990 census and

it automatically expires in 1996.” See

Appendix C, p. 6, § 11.

The state court also found after reviewing the City’s

growth management program that “The restrictions in the

Growth Management Ordinance and the open-space zoning

designations do not rule out development upon annexation.”

Petition, Appendix C, p. 22. This Court has never

suggested that speculative “delays” amount to a “taking” of

property. See Agins, 447 U.S. 255, 263 n.9; cf., First

English, 482 U.S. 304, 321 [distinguishing “normal delays

in obtaining building permits, changes in zoning ordinances,

variances and the like]. The state court of appeal’s

interpretation of the City’s ordinances themselves — as

opposed to LBE’s self-serving and wholly inaccurate

characterizations of the regulations — does not offend

constitutional sensibilities. Courts of law are competent to

interpret ordinances and regulations; they are not bound by

a plaintiff's pleaded interpretation or speculation regarding

their meaning.

LBE takes refuge in a line of cases which hold that

the ripeness requirement is satisfied where the result of the

regulations is certain, i.e., pre-ordained by the regulations

themselves. Petition, pp. 28-29. The example given is

First English, 482 U.S. 304, where the challenged

regulations on their face (purportedly) banned all

development."° This argument merely reiterates the

obvious — facial challenges are not barred by ripeness

considerations. A regulation which on its face forbids

development is thus subject to immediate attack. This is

not such a case.

of Los Angeles, 210 Cal.App.3d 1353, cert. denied 110 S.Ct. 866

(1989) [when the Califomia court examined the actual ordinance it

found the ordinance did not, in fact, ban all development].

CONCLUSION

For all the foregoing reasons respondent City of

Simi Valley respectfully submits that this case presents no

special and important reasons for review by writ of

certiorari.

Respectfully submitted,

Freilich, Stone, Leitner & Carlisle

By KATHERINE E. STONE

Counsel of Record for Respondent

CITY OF SIMI VALLEY

APPENDICES

- 7

reas Det

ee es ee ames

_ ee 2 le Se > Se

Ne ee eS ae ee Oe eee ae ee

A-1

JOHN TORRANCE, CITY ATTORNEY

MARJORIE A. BAXTER, ASSISTANT CITY -

ATTORNEY Feoby ED

CITY OF SIMI VALLEY

2929 Tapo Canyon Road JAN 03 1992

Simi Valley, California 93063; SHEILA GONZALEZ, Superior Court

q Executive Officer and Clerk

an am

FREILICH, STONE, LEITNER & CARLISLE

KATHERINE E. STONE —

11755 Wilshire Boulevard, Suite 1230

Los Angeles, California 90025

(213) 444-7805

Attorneys for Respondents/Defendants

CITY OF SIMI VALLEY anc

THE RANCHO SIMI OPEN SPACE

CONSERVANCY AGENCY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF VENTURA

LONG 3EACH EQUITIES, INC., CASE NO.

a California corporation; 103364

MARR RANCH ASSOCIATES,

INC., a California NOTICE OF

corporation, ENTRY OF

Petitioners/Plaintiffs, JUDGMENT

]

A ]

COUNTY OF VENTURA; BOARD OF

SUPERVISORS OF THE COUNTY J

OF VENTURA: PLANNING COMMISSION |

FOR THE COUNTY OF VENTURA:

THE CITY OF SIMI VALLEY;

THE CITY COUNSIL OF SIMI J

VALLEY: DOES 3 THROUGH 50, |

Respondents and Defendant

A-2

TO ALL PARTIES AND TO THEIR ATTORNEYS OF

RECORD:

PLEASE TAKE NOTICE that on December 3, 1991

a judgment of dismissal was filed and entered in this action.

Defendants City of Simi Valley and The City Council of

Simi Valley were awarded costs in the amount of

$6,189.75. Attached as Exhibit “A” is a true and correct

copy of the judgment.

Dated: December 31, 1991

Respectfully submitted,

FREILICH, STONE, LEITNER & CARLISLE

iT thorn Nhu,

KATHERINE E. STONE

Attorneys for Respondents/Defendants

CITY OF SIMI VALLEY, et al.

gat rILeb

= « DEC - 9 1991

ess “ena Clee meee

orem ia Dri

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF VENTURA

LONG BEACH EQUITIES, INC., CASE NO.

a California corporation; 103364

MARR RANCH ASSOCIATES,

INC., a California

corporation, —

Petitioners/Plaintiffs,

ater

vs.

COUNTY OF VENTURA; BOARD OF

SUPERVISORS OF THE COUNTY

OF VENTURA; PLANNING COMMISSION

FOR THE COUNTY OF VENTURA;

THE CITY OF SIMI VALLEY;

THE CITY COUNCIL OF SIMI

VALLEY; DOES 3 THROUGH S50,

Respondents and Defendants.

The demurrer of defendants City of Simi Valley and

City Council of Simi Valley (“City”) to the first amended

complaint was heard on October 26, 1989, before the

Honorable Bruce Thompson, Judge of the Superior Court.

Karen J. Lee of HAMILTON & SAMUELS appeared for

plaintiff Long Beach Equities. Robert Philibosian of Baker

& McKenzie appeared for plaintiff Marr Ranch.

Katherine E. Stone of FREILICH, STONE, LEITNER &

CARLISLE appeared for the City. The Court granted the

demurrer without leave to amend as to the Third Cause of

Action (discrimination in application of zoning and land

regulation laws), Fourth Cause of Action (deprivation of

civil rights), Fifth Cause of Action (conspiracy to deprive

plaintiffs of civil rights), and overruled the demurrer as to

]

A-4

the First Cause of Action (inverse condemnation), Second

Cause of Action (denial of substantive and procedural due

process of law), and Sixth Cause of Action (declaratory and

injunctive relief).

The City filed a petition for mandate to compel the

trial court to sustain the City’s demurrer in its entirety

without leave to amend. In Long Beach Equities, Inc. v.

County of Ventura (1991) 231 Cal.App.3d 1016, the Court

of Appeal granted the City’s petition for a writ of mandate

and held “let a writ of mandate issue to compel the trial

court to enter a new and different order sustaining City’s

demurrer in its entirety without leave to amend. Costs to

the City and County.” (/d. at 1042.) The remitter was

issued on October 1, 1991.

NOW THEREFORE IT IS HEREBY ORDERED,

ADJUDGED AND DECREED THAT:

1. The demurrer of defendants CITY OF SIMI VALLEY

AND CITY COUNCIL OF SIMI VALLEY is

sustained as to each and every cause of action without

leave to amend.

2. The first amended complaint is dismissed with

prejudice.

3. Plaintiffs shall take nothing by this suit.

4. Defendants CITY OF SIMI VALLEY AND CITY

COUNCIL OF SIMI VALLEY are awarded costs to

the City in the amount of $ 6184,75 |

Dated: VEC 2 1991 _ pat

JUDGE OF THE SUPERIOR COURT

A-5

JANUARY 17,1989 TRANSCRIPT OF THE PUBLIC

HEARING REGARDING GENERAL PLAN

AMENDMENT SCREENING BY THE BOARD OF

SUPERVISORS

SUPERVISOR LACEY: Any questions? Thank you

very much. Did.. Mr. Lightfoot, you look like you now

want to testify. O.K.

MR. JAMES LIGHTFOOT: Madam Chairman and

members of the Board, I apologize for the statement I made

earlier. It was not my intent to speak, but inasmuch as

representatives of Long Beach Equities have raised the

issue of the growth control ordinance, I felt that it was

worthwhile to remind you of where the numbers came from

initially. In 1985, in conjunction with development of the

208 Water Quality Plan, the Air Quality Management Plan,

the Spheres of Influence Study, and the Sub-regional

Transportation Plan, the County prepared the Countywide

Planning Program (CPP) Population Forecast which

allocated population growth to various jurisdictions within

the County. These populations forecasts were adopted by

this Board of Supervisors, and subsequently were adopted

by the various cities including the City of Simi Valley. In

July of 1986, the City adopted its Control Growth

Management Plan which was designed to bring the City’s

growth into conformance with the CPP projections. Uh,

what we now see is an application to the County by Long

Beach Equities for a General Plan Amendment, and

Tentative Tract approvals, that appear to be an attempt to

avoid adherence to the City’s general plans, City’s codes

and ordinances, as well as the CPP projections adopted by

the County. Consequently, the City must object in the

A-6

strongest possible terms to these actions being processed by

the County. The comments that both Mr. Freidman and

Mr. Hamilton made about the timing are fairly close to

correct. We have a program that was adopted, it’s a ten-

year program as mentioned, in 1986, in July, that has

specific rules applied to the first five years only. The City

is now approaching the fourth and fifth year, and the

numbers of permits that will be available in this fourth and

fifth year are very limited because of the numbers that were

issued in the first three years. At the point of reevaluation,

at the five-year mark, we will have, we believe, the

information from the 1990 federal census. If we have

managed to adhere to the CPP projections in a workmanlike

and satisfactory manner, the rules that were adopted for the

first five years, in all probability, will be relaxed.

However, if we find that the population has grown beyond

our projections, then the next five years are going to be as

tight as the first five. The other statements as have been

made by your staff, referring to the policies, the policies

adopted by LAFCO, these we certainly concur with, but we

believe that to avoid the actions that the City has laid out

in their codes and ordinances at this time is certainly not an

action that we would feel should occur. The question was

raised by Mr. Hamilton, where is the injury, where is the

reason for adhering to the City’s code and ordinances? We

believe that the reason and the injury has to do with the

numbers that were developed under the 208 Water Quality

Management Plan, the Air Quality Plan, and the other plans

dealing with the transportation and infrastructure. I’d be

happy to answer any other further questions. Thank You.

SUPERVISOR LACEY: Any questions? Thank you,

very much. That’s all the cards I have on this one.

A-7

SUPERVISOR JAMES DOUGHERTY: Madam

Chair, the testimony and the aerial photo that we’ve been

given clearly indicate that this is entirely a City problem.

If in fact, the Board is going to be called upon to address

what some persons may see as inequities occurring in the

cities another forum is going to have to tell us to do that.

So, with those words, Madam Chairman, I would move to

follow the staff recommendations and deny this project.

SUPERVISOR LACEY: O.K., any objections? All

right, that will be the straw motion. O.K., item 5. I don’t

have any cards on this, I’m just telling you that.

(Mr. Eisenhut proceeds with the next request)

A-8

_ CERTIFICATE OF THE CLERK OF THE BOARD OF

SUPERVISORS COUNTY OF VENTURE

I RICHARD D. DEAN, County Clerk and Ex-officio

Clerk of the Board of Supervisors of the County of

Venture, State of California, do hereby certify that the

attached transcript of the Venture County Board of

Supervisors hearing of January 17, 1989, Item No. 6,

Applicant No. 4, is true and correct, as per the recording of

said meeting, on file in the Clerk of the Board Office,

Administration Building of the County Government Center,

800 South Victoria Avenue, in the City of San

Buenaventura, County of Venture, State of California.

IN WITNESS WHEREOF, I have hereunto set my

hand and caused the seal of said Board of Supervisors to be

affixed hereto this 16th day of February, 1990.

RICHARD D. DEAN, County Clerk

and Ex-officio Clerk of the

Board of Supervisors

Deputy

A-9

ORDINANCE NO. 638

AN ORDINANCE OF THE CITY COUNCIL OF

THE CITY OF SIMI VALLEY ADOPTING A

CONTROLLED-GROWTH LIMITATION PLAN

AND MAKING FINDINGS OF FACT IN

SUPPORT THEREOF

WHEREAS, The City Council of Simi Valley is

concerned about the rate of growth and quality of

development in the City. While the City Council recognizes

the need for new jobs, improved shopping facilities and

housing opportunities for all the residents of the

community, including young adults, families and senior

citizens, they also recognize the need to augment the

existing General Plan policies and City ordinances which

regulate residential development. Therefore, in order to

protect the unique, hill-surrounded environment; enhance

the quality of life; promote public health, safety of welfare

and the general well-being of the community, the City

Council deems it necessary to adopt a_ strong

CONTROLLED-GROWTH LIMITATION PLAN. This

Plan will limit the rate, distribution, quality and type of

residential development on a year-to-year basis to improve

local air quality, reduce traffic demands on local streets and

the 118 Freeway and ensure that future demands for such

essential services as water, sewers and the like are met; and

WHEREAS, the City Council has monitored

development and land uses, and related trends in the

Community in accordance with the General Plan; and

WHEREAS, the City Council held public meetings on

May 5, 12 and 19, 1986 and duly noticed public hearings

on June 9, 16, 23, 26 and 30, 1986 to consider issues

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associated with the City’s future population and growth and

the consideration of growth management alternatives.

NOW, THEREFORE, THE CITY COUNCIL OF THE

CITY OF SIMI VALLEY DOES ORDAIN AS FOLLOWS:

SECTION 1. The City Council finds and declares

that:

A. The above recitals are true and correct.

B. The adoption of this CONTROLLED-

GROWTH LIMITATION PLAN will not have a significant

effect on the environment and that a Negative Declaration

has been completed in compliance with C.E.Q.A. and the

State C.E.Q.A. Guidelines and said Negative Declaration is

hereby approved.

C. The adoption of a CONTROLLED-

GROWTH LIMITATION PLAN is necessary to carry out

the City’s General Plan Goals and Policies, incorporated

herein by reference and for the protection of the public

health, safety, or welfare based upon the findings contained

in Section 2 herein.

SECTION 2. The City Council further finds and

declares:

A. That the Countywide Planning Program’s

base population projections for the Simi Valley Growth

Area from 1980 to 2010 (1980, 80,294; 1985, 90,640; 1990,

103,220; 1995, 112,650; 2000,121,170; 2005, 129,220;

2010, 136,930) will permit orderly improvement of water

supply, wastewater treatment, flood control and regional

transportation facilities and are used as a major component

in the creation of the Air Quality Management Plan

(AQMP).

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B. That maintenance of clean and healthful air

is essential to the community, and failure to adopt a

CONTROLLED-GROWTH LIMITATION PLAN will pose

a threat to the public health, safety, or welfare by impeding

the AQMP’s Reasonable Extra Efforts Program.

C. That future residential development which is

not in compliance with the Countrywide Planning Program

may force some local streets to service Level F at peak

hours, and that the 118 Freeway, during morning and

evening peak hours, is already operating in excess of

capacity. The inability of the 118 Freeway to handle

projected traffic for Simi Valley, Moorpark and Thousand

Oaks is a region-wide problem.

D. That the traffic operating at Level F during

peak hours will cause a decline in local air quality and

create the potential for decline in the health of residents of

the community.

E. That it is important to the health, safety or

welfare of the residents of Simi Valley that local roadways:

and the 118 Freeway operate at the best available functional

level.

F. That the Cities of Simi Valley, Thousand

Oaks, and Moorpark and the County unincorporated area,

by virtue of a substantial number of approved units, have

provided ample opportunity for dditional dwelling units in

eastern Ventura County. Therefore, the City Council has

balanced the effect of this CONTROLLED-GROWTH

LIMITATION PLAN against the region’s housing needs

and have determined that the facts supporting the need for

the CONTROLLED-GROWTH LIMITATION PLAN

outweigh the effects which the PLAN might have on the

region’s housing needs.

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G. That numerous vacant industrial buildings in

the City demonstrate that local employment is not keeping

pace with dwelling unit construction and new residents are

forced to commute to jobs outside Simi Valley, further

aggravating 118 Freeway peak hour congestion.

H. That the adoption of a CONTROLLED-

GROWTH LIMITATION PLAN to limit growth will allow

the Ventura County Flood Control District to provide

necessary channel improvements to Calleguas Creek,

Arroyo Simi, Sycamore Canyon, and Tapo Canyon at a rate

that will help keep pace with future development. Floods

have occurred in the Oxnard Plain over the past eight years,

resulting in millions of dollars in property damage. Several

of these floods have led to the filing of lawsuits against the

City, alleging that the development has_ increased

stormwater runoff into the Arroyo Simi, thus contributing

to downstream flooding. The fiscal threat to the City of

these types of cases poses a threat to public health, safety,

or welfare. The CONTROLLED-GROWTH LIMITATION

PLAN will reduce future development-related stormwater

runoff into Calleguas Creek, thus minimizing the potential

for lawsuits against the City.

I. That this CONTROLLED-GROWTH

LIMITATION PLAN is needed because the supply of water

from the Calleguas Municipal Water District may be

restricted by the Metropolitan Water District during peak

demand hours in the future.

J. That due to the historical decline in school

enrollment and the holding in reserve of closed schools, the

CONTROLLED-GROWTH LIMITATION PLAN will not

adversely affect the Simi Valley Unified School District.

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K. That the County of Ventura has adopted the

Countywide Planning Program for the protection of the

public health, safety, or welfare based upon findings of fact

relating to the impacts of air quality, water quality, traffic

and balancing the region’s housing needs.

L. That in reliance on the Countywide Planning

Program findings of fact, which are incorporated by

reference herein, the City has adopted the population

projections of said Program.

SECTION 3. The City’s actual population is the

determining factor in this CONTROLLED-GROWTH

LIMITATION PLAN.

SECTION 4. The adopted Growth Area Population

Guidelines which are used in the Countywide Planning

Program, AQMP, 208 Water Quality Management Plan and

Regional Transportation Plan for the Growth Area are

established as the population forecast used in this

CONTROLLED-GROWTH LIMITATION PLAN. The

target population for 1991 shall be 105.106, and the

maximum permissible population for 1996 shall be 114,354

The City Council shall reserve the right to further limit

population growth for the purpose of promoting public

health, safety, or welfare; traffic control; compliance with

County, State, or Federal regulations; or other compelling

reasons.

SECTION 5. To reasonably implement a

CONTROLLED-GROWTH LIMITATION PLAN, a

population limitations may be achieved only through

restrictions on issuance of building permits for new

dwelling units. For this purpose, the term “equivalent

dwelling unit” shall be utilized, which, at the adoption

hereof, shall be defined as:

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a) an apartment unit is equivalent to 2.3

residents, and

b) any other single family dwelling unit is

equivalent to 3.258 residents.

These ratios shall be binding on the City until

July 1, 1989, at which time the City Council may,

following a duly-noticed public hearing, adjust these ratios

per demographic data then available, except however, that

no such adjustment shall allow a reduction in these 2.3 and

3.358 ratios by more than 10%. The equivalent dwelling

unit permit maximum which will provide the method to

predetermine, measure, and control population growth

through the issuance of building permits, as illustrated on

Exhibit A attached tc this ordinance, shall be the Population

Growth Guidelines of the City.

SECTION 6. During the first fiscal year of this PLAN

(July 1, 1986 to June 30, 1987), available quarterly permits

(as illustrated within Exhibit A), may be exceeded by no

more than fifty (50) percent for each quarter of that year;

during the second fiscal year (July 1, 1987 to June 30,

1988), available quarterly permits (as illustrated within

Exhibit A) may be exceeded by no more than forty (40)

percent for each quarter of that year; and during the third

fiscal year (July 1, 1988 to June 30, 1989), available

quarterly permits (as illustrated with Exhibit A) may be

exceeded by no more than thirty (30) percent for each

quarter within that year. All remaining permits shall be

distributed equally over fiscal years four and five of this

CONTROLLED-GROWTH LIMITATION PLAN.

SECTION 7. Senior, senior affordable and affordable

residential developments for very-low to lower income

households shall have preferential rights for allotment of

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permits. Senior and senior affordable units shall have not

less than twenty (20) percent and other affordable not less

than fifteen (15) percent of each allocation period’s

available permits identified on Exhibit A and in accordance

with the allocation system to be established per Section 10.

SECTION 8. Any available quarterly permits

remaining unused shall be available in any subsequent

quarter.

SECTION 9. The City shall review this

CONTROLLED-GROWTH LIMITATION PLAN

concurrent with the General Plan Update to be begun not

later than June 1989 to evaluate the progress toward the

projected population figure for 1991 (105,106). Based upon

this review, the permit allocation procedure shall be revised

to ensure that maximum population projections are not

exceeded.

SECTION 10. Immediately following the effected

date of this PLAN, the City shall adopt, after a duly-noticed

public hearing, a system for allocating building permits to

implement the requirements of this PLAN. Within ninety

(90) days of the effective date of this PLAN, the allocation

system shall be adopted by ordinance. The allocation

system shall include criteria for the evaluation of projects,

including but not limited to: Senior citizen housing; housing

for very-low or lower income families; design excellence,

including community-wide amenities; infill development;

housing which provides a positive fiscal impact on City

revenues; and the availability or provision for public

facilities and services, including but not limited to, sewers,

roads, water, storm drains and the like; or additional urgent

housing needs determined by the City Council after public

hearings. The allocation system shall also set criteria for

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evaluating single-unit developments. In the interim, the

permit over-allocation provisions in Section 6 hereof shall

not be applicable and available permits shall be issued on

a first-come, first-serve basis subject to the numerical limits

in Exhibit A. If an allocation System has not been

approved within the ninety (90) days following the effective

date of this PLAN, no further building permits shall be

issued until the allocation system is approved. The City

Council shall adopt an urgency moratorium to implement

this provision if necessary. The provisions of this PLAN

shall apply to all residential planned developments, tentative

tracts, and vesting tentative tracts, except the Wood Ranch

Specific Plan, for which the provisions of The Wood Ranch

Development Agreement shall prevail. The total number of

permits remaining to be issued to The Wood Ranch under

The Specific Plan shall be averaged over the term of the

Development Agreement and subtracted annually from the

total number of permits available for all residential

development. Upon termination of the Development

Agreement, unallocated permits related thereto shall be

made available City-wide and shall be added to Exhibit A

accordingly. In the event that a previously adopted

ordinance on this subject mandated the establishment of an

allocation system similar hereto, compliance with said

previous ordinance shall constitute compliance with this

section.

SECTION 11. Not later than July 1, 1991, the

facts creating the need and _ wnecessity for this

CONTROLLED-GROWTH LIMITATION PLAN shall be

re-evaluated in concert with the latest revisions of the

General Plan and the results of the 1990 United States

Census. Future growth limitations for the next five-year

portion of the CONTROLLED-GROWTH LIMITATION

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PLAN shall be based on the need and necessity established

by criteria enunciated in Section 4, the revised General

Plan, and the City’s 1996 Countywide Planning Program

Population Guideline of 114,354.

SECTION 12. This CONTROLLED-GROWTH

LIMITATION PLAN shall be in effect until July 1, 1996.

SECTION 13. THIS ORDINANCE SHALL NOT

BE REPEALED OR AMENDED EXCEPT BY A VOTE

OF THE PEOPLE. At the end of ten (10) years, this

ordinance, as it may be recommended for amendment by

4/5 vote of the Council following duly-noticed public

hearings, shall be placed on the ballot in order to allow its

re-adoption by the People.

SECTION 14. If any section, subsection, sentence,

clause, phrase, or portion of this ordinance is for any reason

held invalid or unconstitutional by any court of competent

jurisdiction, such portion shall be deemed a separate,

distinct and an independent provision and such decision

shall not affect the validity of the remaining portion hereof.

The City Council hereby declares that it would have passed

this ordinance, and each section, subsection, sentence,

clause and phrase hereof, irrespective of the fact that any

one of the sections, subsections, sentences, clauses or

phrases hereof be declared invalid or unconstitutional.

SECTION 15. The City Clerk shall cause this

ordinance to be published at least once in a newspaper of

general circulation, published and circulated in the City

within fifteen days after its passage, in accordance with

Section 36933 of the Government Code, shall certify to the

adoption of this ordinance and shall cause the ordinance

and his certification, together with proof of publication, to

be filed in the Office of the Clerk of this Cit.

PASSES and ADOPTED this 21 day of July, 1986.

A-18

ATTEST

WA i 4 # fT

Myrna Katsch, Deputy City Clerk

Chas

ELTON GALLEGLY, MAYOR OF THE CITY

OF SIMI VALLEY, CALIFORNIA

APPROVED AS TO FORM:

| OWS

~ “John Torrance, City Attorney

APPROVED AS TO CONTENT:

LESLIE

M.L. Koester, City Manager

pe 4 ts ee

James R. Lightfoot, Acting Director Department of

Community Development

A-19

EXHIBIT A

CONTROLLED GROWTH LIMITATION PLAN

Interpolated

**Permits Including Countywide

Quarter * Permits Available Over-allocation Planning Program

Beginning After Adjustment 50-40-30 Population

July 1, 1986 107 161 94,414.

October 1, 1986 107 161

January 1, 1987 107 160 95,672.

April 1, 1987 107 160

July 1, 1987 107 150

October 1, 1987 107 150

January 1, 1988 107 150 98,188.

April 1, 1988 107 149

July 1, 1988 107 139

October 1, 1988 107 139

January 1, 1989 107 139 100,704.

April 1, 1989 107 139

July 1, 1989 107 43

October 1, 1989 107 43

January 1, 1990 107 43 103,220.

April 1, 1990 107 43

July 1, 1990 107 43

October 1, 1990 107 43

January 1, 1991 107 43 105; 106.

April 1, 1991 te7 42

January 1, 1992 - 106,992.

January 1, 1993 - 108,878.

January 1, 1994 - 110,764.

January 1, 1995 - 112,650.

January 1, 1996 - 114,354.

* Historically Simi Valley has averaged 888 residential building permits per

year since 1975. However, in 1985, an unusually high number of permits

(2,328 equivalent dwelling unit permits) were issued due to low interest rates

and other economic conditions. Since, under the Countrywide Planning

Program policies adopted by the City Council, only 1,067 permits were

available for the year, 1,267 were borrowed from future allocations. So far, in

the first two quarters of 1986, 1,095 equivalent dwelling unit permits have been

issued. Only 534 permits (half of 1,067) were available, therefore an additional

561 were borrowed from future allocations. The number of permits available

for the next 5 years is 5,335 (1,067 X 5 = 5,335). Subtracting the borrowed

permits (1,261 + 561 = 1,822) from this five year allocation (5,335 - 1,822 =

3,513) leaves 3,513 residential permits available for the period from July 1,

A-20

1986 to June 30, 1991 in order to stay within the maximum population under

the Countywide Planning Program.

In addition, the Wood Ranch, per its Development Agreement has 2,952 permits

remaining to be issued over the next 10.75 years. This number (2,952) was

averaged over that time (approximately 274.6 permits per year) and the average

numbers were subtracted from each year’s number of available permits (per

Section 10). Therefore, the base figure distributed over the first five years of

the PLAN was: 3,513 - (274.6 X 5 = 1,373) = 2,140.

**Per Section 6 available quarterly permits may be exceeded by 50%, 40% and

30% during the first, second and third years, respectively, of the

CONTROLLED-GROWTH LIMITATION PLAN.

Me vec ariniins

A-21

I, Deputy City Clerk of the City of Simi Valley,

California, do hereby certify that the foregoing Ordinance

No. 638 was regularly introduced and adopted by the City

Council of the City of Simi Valley, California, at a regular

meeting thereof held on the 21 day of July, 1986, by the

following vote of the City Council:

AYES: Council Members McAdoo, Rock,

Mayor Pro Tem Stratton and Mayor

Gallegly

NAYS: None

ABSENT: Council Member Howard

ABSTAINED: None

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed the official seal of the City of Simi

Valley, California, this 22nd day of July, 1986.

LAP ee Ee

DEPUTY CITY CLERK OF THE

CITY OF SIMI VALLEY, CALIFORNIA

| HEREBY CERTIFY THAT THE

FOREGOING IS A TRUE AND

CORRECT COPY OF THE ORIGINAL

pare pfslat L2e2 —

ee ofthe CityClerk

Deputy City Clerk

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: I am and was at all times

herein mentioned, a citizen of the United States and a

resident of the County of Los Angeles, over the age of

eighteen (18) years and not a party to the within action or

proceeding; that my business address is 11852 Santa

Monica Boulevard, Suite 3, Los Angeles, California 90025;

that on January 24, 1992, I served the within Brief Of

Respondent City Of Simi Valley In Opposition To Petition

For Writ Of Certiorari in said action or proceeding by

depositing true copies thereof, enclosed in a sealed envelope

with postage thereon fully prepaid, in the United States mail

at Los Angeles, California, addressed as follows:

Clerk, United States

Supreme Court

One First Street, N_E.

Washington, D.C. 20543

(Express Mail: original

and forty copies)

Michael M. Berger

Berger & Norton

1875 Century Park East

Suite 600

Los Angeles, CA

The Honorable Steven Perren

Presiding Judge

Ventura County Superior

Court

Hall of Justice

800 South Victoria Avenue

Ventura, Califommia 93009

Karen J. Lee, Esq.

Hamilton & Samuels

4000 MacArthur Boulevard

Suite 5700

Newport Beach, CA 92660

J. Robert Flandrick

Virginia R. Pesola

Burke, Williams & Sorenson

611 West Sixth Street

Los Angeles, California 90017

Ronald A. Zumbrun

Edward J. Connor, Jr.

Timothy V. Kassouni

Pacific Legal Foundation

2700 Gateway Oaks Drive

Suite 200

Sacramento, CA 95833

;

Robert E. Philibosian, Esq. James L. McBride,

Baker & McKenzie County Counsel

725 South Figueroa Street Dennis L. Slivinski, Ass’t.

Los Angeles, California 90017 County Counsel

County of Ventura

Court of Appeal 800 South Victoria Avenue

Second Appellate District Ventura, California 93009

Division Six

1280 South Victoria Avenue The Honorable Bruce A. Thompson

Suite 201 Trial Court Judge

Ventura, California 93003 Ventura County Superior Court

800 South Victoria Avenue

Ventura, California 93009

I declare under penalty of perjury that the foregoing

is true and correct. Executed on January 24, 1992, at Los

Angeles, California.

Betty J. Malloy

(Original signed)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.