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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1219

## Text

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

i

QUESTIONS PRESENTED

The questions framed by the petitioner seriously
misstate the facts of this case; the questions are more
properly stated below.

1.

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:

c

Whether petitioner's facial claims are barred
by statutes of limitation.

il

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

I.

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
a

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
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

Vv

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

vi

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

ix

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.

3

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.

4

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

5

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).

7

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.

I.

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].

9

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

10

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.

1}

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...)

12

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.

13

I.

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.

14

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

15

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

16

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

17

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.

18

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.

19

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

20

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

21

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

22

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

23

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.

24

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.

© Cf., First English Evangelical Church of Glendale v. County
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].

25
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

P4

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

J
]
J
]
J
J
J
]
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

7
= « 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

]
J
J
]
J
|
1A
|
]
J
]
J
J
J
J
]
]
J
]
]

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

By
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.

A-12

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.

A-13

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:

A-14

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

A-15

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

A-16

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

A-17

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

k

ig
;
;
q
|

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2279%3A3. Public record. Not legal advice.