Petition for Writ of Certiorari — Guinnane v. City of San Francisco

& 7 = } oy i rr Supreme Court, U.S.

FILED

MAY 3. 1988

JOSEPH F. SPANIOL, JR,

PET

No.

In the Supreme Court

of the

United States

OCTOBER TERM, 1987

ROY GUINNANE, GUINNANE CONSTRUCTION LD.. INC.

Petitioners,

V.

CITY AND COUNTY OF SAN FRANCISCO,

ROBERT PASSMORE AND ALEC BASH

Respondents.

Petition for Writ of Certiorari

to the Court of Appeal of

The State of California

CHARLES O. MORGAN, JR.

Law Offices of Charles O. Morgan, Jr.

450 Sansome Street

Suite 1310

San Francisco, CA 941i1

Telephone: (415) 392-2037

Attorneys for Petitioners

QUESTION PRESENTED

Whether plaintiffs are entitled to recover damages for a

taking of property following the decision in First English

Evangelical Lutheran Church of Glendale v. Los Angeles

County where defendants' activities prevented development of

the subject property.

LIST OF PARTIES

RULE 28.1

The parties to the proceedings below were the petitioners Roy

Guinnane and Guinnane Construction Co., Inc., and the

respondents City and County of San Francisco, Robert

Passmore and Alec Bash.

TABLE OF CONTENTS

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THE COURT OF APPEAL'S DECISION CONFLICTS

WITH THE CONTROLLING DECISIONS OF THIS

COURT AND ALLOWS A TAKING OF LAND

WITHOUT JUST COMPENSATION .................000008 7

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Appendix (Opinion of the Court of Appeal and Order Denying

Review After Judgment By The Court of Appeal

TABLE OF AUTHORITIES CITED |

Cases

Page

Agins v. City of Tiburon, 24 Cal.3d 266, affd. 447 U.S. 255

First English Evangelical Lutheran Church of Glendale v. Los

Angeles County, 482 U.S. ____, 96 L.Ed.2d 250, 197

BE BRED CRGRT Vcrcccsnsectesinsssonsaeriness eile 6,9

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

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Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)..... 6

Constitution

United States Constitution:

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No.

In the Supreme Court

of the

United States

OCTOBER TERM, 1987

ROY GUINNANE, GUINNANE CONSTRUCTION CoO., INC.

Petitioners,

V.

CITY AND COUNTY OF SAN FRANCISCO,

ROBERT PASSMORE AND ALEC BASH

Respondents.

Petition for Writ of Certiorari

to the Court of Appeal of

The State of California

The petitioners Roy Guinnane and Guinnane

Construction Co., Inc. respectfully pray that a writ of

certiorari issue to review the judgment and opinion of the

Court of Appeal of the State of California, First Appellate

District, Division One, entered in the above-entitled

proceeding on November 19, 1987.

OPINIONS BELOW

The opinion of the Court of Appeal of the State of

California, First Appellate District, Division One, dated

November 19, 1987, is reported at 197 Cal. App.3d 862 and

appears in Appendix A hereto. The Order Denying Review

After Judgment By The Court of Appeal of the California

Supreme Court, dated February 3, 1988, is unreported and

appears in Appendix B.

JURISDICTION

The California Supreme Court on February 3, 1988 denied

review after the November 17, 1987 decision of the Court of

Appeal. The petition for certiorari was filed within 90 days of

the California Supreme Court's denial of review. This

Court's jurisdiction is invoked under 28 U.S.C. sec. 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED |

United States Constitution, Amendment V. |

No person shall be held to answer for a capital, |

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall he |

be compelled in any criminal case to be a witness

a

’

against himself, nor be deprived of life, liberty or

property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

United States Constitution, Amendment XIV.

Section I. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

In June, 1979, petitioners Roy Guinnane and Guinnane

Construction Co., Inc. (hereinafter collectively “Guinnane”)

purchased for $210,000.00 four parcels of real property

located on Edgehill Way in the City and County of San

Francisco with the intention to eventually build a single family

residence on each lot. At the time, Guinnane was not aware of

any intention to condemn the property and would not have

purchased the property had he known.

Approximately one year later, on July 1, 1980, at a joint

meeting of the respondent City and County of San Francisco's

(hereinafter “City") Recreation and Park Commission and

respondent Planning Commission, the latter adopted

Resolution No. 8615 amending the Recreation and Open

Space Element of the Master Plan of City to include as open

space an area identified as “Edgehill Woods,” containing

Guinnane's property.

Although no funds were allocated to acquire the property,

the mere designation of Guinnane's property for acquisition as

Open Space meant that any construction of the property would

automatically be in conflict with the Master Plan of the City,

thereby requiring environmental review beyond that necessary

for other property in the area. The designation also meant that

the City would prohibit all construction on the subject

property, regardless of the amount of environmental review.

On September 4, 1980, Guinnane filed a building permit

application for the construction of a single family dwelling.

On November 4, 1980, respondent Robert Passmore,

Assistant Director of Planning Department — Implementation,

determined that an Environmental Impact Report (hereinafter

“EIR") was required on the property because the proposed

construction conflicted with the City's Master Plan.

City on July 7, 1981, decided to delete Guinnane's

property from the Open Space Element of the Master Plan,

thereby eliminating the sole basis for the EIR requirement.

Although City stated in Resolution 9277 that lack of funds

caused the deletion, it appears that City determined that

Guinnane's property was simply not suitable for open space

acquisition, though there had been no change in the property

since the original designation.

Despite this negation of its only basis for the EIR

requirement, the City did nothing to prevent further work on

PDEIR. The City did not decide that any development was

even possible on the subject property until December 10,

1981, when the Planning Commission adopted Resolution

No. 9257, allowing building permit applications to be

processed on property designated for Open Space acquisition

which was not going to be purchased.

Ee

It was not until March 4, 1982 that the City finally

determined that a Negative Declaration, rather than an EIR,

would be required.

Rather than easing the review, however, the City

effectively raised an insurmountable barrier by simultaneously

requiring that Guinnane include in his Negative Declaration a

discussion of an adjoining landowner's project. This

requirement was imposed by respondent Alec Bash, although

he knew that Guinnane and Borak (the adjoining landowner)

would not work together, that Borak refused to pay the cost of

any additional work, and that Borak's attorney had threatened

the City with a lawsuit if he were required to provide any

environmental document.

In April, 1982, Guinnane brough: suit for inverse

condemnation, violation of civil rights, conspiracy, and a writ

of mandate against respondents City, Passmore and Bash.

Since the filing of the lawsuit, respondent City has

continued to impose a series of unreasonable requirements on

Guinnane, effectively preventing him from completing

environmental review and obtaining approval of his building

permit application. For example, the City then imposed a new

requirement that Guinnane meet with City's Fire Department,

but the Fire Department refused to meet with Guinnane on

advice of the City Attorney.

On or about May 26, 1983, respondent City without notice

cancelled Guinnane's building permit application. As a result

of respondents’ actions, the property currently has no value.

Prior to trial respondents moved for summary judgment on

all causes of action. The Honorable Raymond D. Williamson,

Jr. granted the motion on February 4, 1986 and, on February

19, 1986 entered judgment in favor of respondents.

Guinnane timely appealed from the judgment to the Court

of Appeal, First Appellate District, of the State of California.

In an opinion filed November 19, 1987 and included herein as

Appendix A, Presiding Justice Racanelli of Division One

affirmed the judgment.

Thereafter, Guinnane timely petitioned the California

Supreme Court for review of the Court of Appeal's decision.

The California Supreme Court on February 3, 1988 filed its

Order Denying Review After Judgment By the Court of

Appeal, which is included herein as Appendix B.

The Court of Appeal acknowledged that recovery for

inverse condemnation is not limited to a direct physical

invasion — "taking" may also occur when a land use regulation

"goes too far." Opinion, Appendix A at A-3, quoting

Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 415.

The Court of Appeal further acknowledged that this Court

in First English Evangelical Lutheran Church of Glendale v.

Los Angeles County (1987) 482 U.S. __., 96 L.Ed.2d 250,

107 S.Ct. 2378 had held that damages were recoverable for a

temporary, regulatory taking, thereby overruling California

law that had precluded damage recoveries in claims for

regulatory takings. Agins v. City of Tiburon (1979) 24

Cal.3d 266, affd. 447 U.S. 255.

In its opinion, however, the Court of Appeal distinguished

First English on the grounds that this Court in First English

had assumed a taking had occurred by accepting as true an

allegation that the ordinance at issue had denied the landowner

all use of his property. Opinion, Appendix A at A-6.

In this case, the Court of Appeal determined that Guinnane

did not establish that a taking occurred. /d. Relying on Penn.

Central Transp. Co. v. New York City (1978) 438 U.S. 104,

131, the Court of Appeal reasoned that, in cases where a

regulation has diminished the value of property, the inquiry

should focus on the uses permitted under the regulation and:

Plaintiff cannot contend he was denied all use of

his property. He was neither deprived of his

right to exclude others from his land nor denied

the right to sell the property.

Opinion, Appendix A, at A-7.

The Court of Appeal further determined that plaintiff's

claim that he was denied the right to develop his property was

premature because there had been no final action on a second

building permit application as of the time of the summary

judgment. Opinion, Appendix A, at A-7. Since the City no

longer intended to acquire the property, Guinnane at most had

a claim for a temporary taking. /d. at A-8.

Finally, the Court of Appeal found that the 5-year delay in

acting upon plaintiff's original application was either an

example of noncompensable "normal delays in obtaining

building permits," Id. at A-9 (quoting First English, 107 S.Ct.

at 2389) or attributable to Guinnane. Opinion, Appendix A, at

A-11-12.

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEAL'S DECISION CONFLICTS

WITH THE CONTROLLING DECISIONS OF THIS

COURT AND ALLOWS A TAKING OF LAND

WITHOUT JUST COMPENSATION

A review of Penn. Central Transportation Co. v. New

York City (1978) 438 U.S. 104, 131, upon which the First

Appellate District Court of Appeal relies for its reasoning,

illustrates the extreme interpretation of the law set forth in the

Opinion. The uses permitted under the regulation at issue in

Penn Central included the operation of a busy railroad terminal

containing office space and concessions. Although the

landowner contended its right to develop the air rights above

the terminal had been taken, there was no suggestion that any

and all construction above the terminal was prohibited, and the

regulation transferred development rights to other property in

the area. There was, therefore, no taking. Penn. Central, 438

U.S. at 136-37.

By contrast, no development was allowed on Guinnane's

property from September, 1980 to December, 1981, as the

Court of Appeal acknowledges in its Opinion, Appendix A, at

A-3.

Although the Court of Appeal is correct in stating that

Guinnane could exclude others from the land, there is no

explanation as to what value Guinnane's right to exclude

others from his land would be to him. The land was

completely undeveloped open space, which is why the City

wanted it for a park. There is nothing in the record to indicate

that Guinnane ever intended to develop his property into a

park. The Court of Appeals' implicit assumption that

Guinnane has "use" of his property simply because the public

cannot freely invade his vacant lot ignores entirely this Court's

long-standing rule that a:

statute that substantially furthers public policies

may so frustrate distinct investment-backed

expectations as to amount to a taking.

Penn. Central, 438 U.S. at 127.

Finally, although in theory Guinnane did have "the right to

sell the property," City's activities had deprived the subject

property of all value. The Court of Appeal acknowledged but

ignored Guinnane's contention that the property had no value.

Opinion, Appendix A, at A-8, n.3.

The Court of Appeal also ignored the rationale of First

English Evangelical Lutheran Church v. County of Los

Angeles (1987) 482 U.S. , 96 L.Ed.2d 250, 107 S.Ct.

2378. Although this Court distinguished cases in which

"normal delays" in obtaining permits resulted, where an

ordinance:

denied appellant all use of its property for a

considerable period of years, . . . we hold that

invalidation of the ordinance without payment of

fair value for the use of the property during this

period of time would be a constitutionally

insufficient remedy.

First English, 96 L.Ed.2d. at 268.

Guinnane has not received fair value for the period during

which all acknowledge he could not develop his property.

Disputes exist as to responsibility for continuing delays

thereafter. This Court must not allow the Opinion of the Court

of Appeal to undermine the holding and spirit of First English.

CONCLUSION

For all the above reasons, this Court should issue a writ of

certiorari to review the judgment of the Court of Appeal.

Respectfully submitted,

Charles O. Morgan, Jr.

Counsel for Petitioners

A-1

APPENDIX A

[197 Cal. App.3d 862]

[No. A034516, First Dist., Div. One, Nov. 19, 1987]

ROY GUINNANE et al.,

Plaintiffs and Appellants,

v.

CITY AND COUNTY OF

SAN FRANCISCO et al.,

Defendants and Respondents.

OPINION

RACANELLI, P.J. — Plaintiffs and appellants,’ real estate

developers, brought an inverse condemnation action against

defendants on a theory that the city's conduct in delaying

action on a building permit application to construct four single-

family houses on four adjoining lots, pending environmental

review, was so unreasonable as to amount to a taking without

just compensation. Following an order granting summary

judgment in favor of the city, plaintiff appeals.

1 Since the interests of plaintiffs and appellants are identical, we will refer

to them hereafter in the singular for convenience.

~ ~_

A-2

FACTUAL BACKGROUND

In 1979, plaintiff Roy Guinnane purchased four vacant

lots located on Edgehill Way in San Francisco. In July 1980,

the recreation and parks commission and the planning

commission, acting jointly, designated an area known as

"Edgehill Woods," which included plaintiff's lots, for study

for possible acquisition as a city park. Accordingly, Edgehill

Woods was included in the recreation and open space element

of the city's master plan.

In September 1980, plaintiff filed an application for a

building permit. The "environmental evaluation" submitted

with the permit application revealed plaintiff's intent to build

four single-family houses on the lots. After an initial study,

the city's planning department concluded the construction

might have significant environmental effects and required an

environmental impact report (EIR).2 Thereafter, plaintiff hired

a consultant to prepare a preliminary draft EIR, which

ultimately was submitted in September 1981.

In October 1981, after a year-long study, the recreation

and parks commission and the planning commission decided

to acquire only a portion of Edgehill Woods; the area to be

acquired did not include plaintiff's lots.

In December 1981, the planning commission amended the

master plan to allow construction projects on lots which were

not to be acquired. On January 14, 1982, the planning

commission rescinded its requirement of an EIR for plaintiff's

proposed development.

The planning commission's rescission of the EIR

requirement for plaintiff's proposed development was

conditioned upon another initial study. Following the initial

2The planning commission upheld the decision of the planning

department on plaintiff's administrative appeal.

ia

A-3

study, the planning department concluded an EIR was not

required but that a negative declaration was indicated. In that

regard, the planning department requested plaintiff to submit

certain information in support of the negative declaration.

However, plaintiff failed to submit all of the requested

information until more than three years later in September

1985.

On October 18, 1985, the city issued a negative

declaration, amended in November in response to public

comments.

Meanwhile, plaintiff filed his lawsuit in 1982, long before

the city's environmental review was completed in November

1985. Due to plaintiff.s failure to submit the requested data,

plaintiff's building permit application had been cancelled in

1983. On December 30, 1985, plaintiff filed a new

application. At the time city's motion for summary judgment

came on for hearing (February 1986), plaintiff's new building

permit application had not yet been acted upon.

DISCUSSION

I.

It has long been established that inverse condemnation is

not limited to a direct physical invasion. A "taking" may occur

when a land use regulation "goes too far." (Penna. Coal Co.

v. Mahon (1922) 260 U.S. 393, 415.) At the time of the

proceedings below, California law declared that a landowner

could not maintain a suit for damages resulting from a

regulatory taking; that the landowner's remedy was limited to

an action for mandamus or declaratory relief to invalidate and

remove the challenged regulation. (Agins v. City of Tiburon

(1979) 24 Cal.3d 266, affd. 447 U.S. 255.)

Given that settled law, plaintiff could not, and did not,

assert a regulatory taking. Instead, plaintiff sought to rely on

A-4

the rule announced in Klopping v. City of Whittier (1972) 8

Cal.3d 39, that a landowner may recover damages for

unreasonable precondemnation activities. Such reliance was

wholly misplaced.

In Klopping, the city first initiated eminent domain

proceedings against plaintiffs' property, then dismissed the

action announcing its intention to condemn the property in the

future. Plaintiffs sued in inverse condemnation alleging that

as a result of the city's announced intention, a cloud was

placed over the property resulting in loss of rentals and

diminution of the value of the property. The Klopping court

held that under such circumstances the landowners could

maintain an action for inverse condemnation compelling the

city to proceed with its announced intention to condemn and to

pay the landowners the market value of the property before the

cloud was created and the value declined. (8 Cal.3d at p. 52.)

Plaintiff seems to suggest that city's delay in acting upon

his application constituted unreasonable precondemnation

activities. But plaintiff overlooks a fundamental distinction

between this case and Klopping: unlike Klopping there was

never any announcement by the city of an intention to

condemn plaintiff's property. At most, the property was

properly designated as open space within the master plan, to

be studied for possible acquisition as a public park.

Of course, a planning designation is not the functional

equivalent of an announced intent to condemn. Thus, in Selby

Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d

110, the court held that a general plan designation of plaintiff's

property as a street did not give rise to an action for inverse

condemnation.

"The plan is by its very nature merely tentative and

subject to change. Whether eventually any part of

plaintiff's land will be taken for a street depends

A-5

upon unpredictable future events. If the plan is

implemented by the county in the future in such

manner as actually to affect plaintiff's free use of

his property, the validity of the county's action

may be challenged at that time."

(Id ., at p. 118.)

The Selby court noted the basic difference from Klopping

in concluding that the adoption of a general plan is "several

leagues short of a firm declaration of an intention to condemn

property." (Selby Realty Co. v. City of San Buenaventura,

supra, 10 Cal.3d at p. 119.) Moreover, the court reasoned,

"If a governmental entity and its responsible

officials were held subject to a claim for inverse

condemnation merely because a parcel of land was

designated for potential public use on one of these

several authorized plans, the process of community

planning would either grind to a halt, or deteriorate

to publication of vacuous generalizations regarding

the future use of land."

(/d., at pp. 120-121; see also Cambria Spring Co. v. City of

Pico Rivera (1985) 171 Cal.App.3d 1080, 1097-1098

[adoption of redevelopment plan]; Dale v. City of Mountain

View (1976) 55 Cal.App.3d 101, 107 [amendment to general

plan to restrict user of property to open space]; Navajo

Terminals, Inc. v. San Francisco Bay Conservation etc. Com.

(1975) 46 Cal.App.3d 1 [adoption of resolution establishing

property as a park].)

In the present case, we are likewise compelled to conclude

that the city's designation of plaintiff's property as a site to be

studied for possible acquisition as a public park did not

i a

A-6

amount to an announced intention to condemn so as to justify

an action in inverse condemnation.

I.

After the briefs were filed in the present case, the U.S.

Supreme Court decided First English Evangelical Lutheran

Church of Glendale v. Los Angeles County (1987) 482 U.S.

___, [96 L.Ed.2d 250, 107 S.Ct. 2378] (hereafter First

English).In that case the Supreme Court overruled the

California Supreme Court's decision in Agins v. City of

Tiburon. supra, 24 Cal.3d 266, and held damages were

recoverable for a regulatory taking even if the taking is

temporary. In a supplemental brief filed with this court,

plaintiff now argues that he need no longer rely on Klopping

for his claim for damages and bases his claim for damages on

the traditional theory of a regulatory taking as discussed in

First English. Our analysis of such alternate theory of

recovery yields a result unfavorable to plaintiff.

Although the Supreme Court has determined that a

temporary regulatory taking is compensable, there is nothing

in First English which changes the rule that a "taking" must

occur before compensation may be claimed. In First English,

the court assumed a taking had occurred. On the appeal from

the trial court's order striking a portion of the complaint, the

lower court and the Supreme Court accepted as true the

allegation that the county's ordinance denied the landowner all

use of the property. Thus, the court framed the issue before it

as “whether abandonment by the government requires

payment of compensation for the period of time during which

regulations deny a landowner ail use of his land." (First

English, supra, 107 S.Ct. at p. 2387, emphasis added.) The

court remanded the matter for further proceedings on whether

a regulatory taking had actually occurred: “whether the

A-7

ordinance at issue actually denied appellant all use of its

property or whether the county might avoid the conclusion that

a compensable taking had occurred by establishing that the

denial of all use was insulated as a part of the State's authority

to enact safety regulations.” (/d., at pp. 2384-2385.)

Here, in contrast, plaintiff did not establish that a taking

occurred. The United States Supreme Court has never

developed a "set formula to determine where regulation ends

and taking begins." (Goldblatt v. Hempstead (1962) 369 U.S.

590, 594.) When, as here, the claim is made that the

regulation has significantly diminished the property value,°

the focus of the inquiry is on the uses of the property which

remain. (Penna Central Transp. Co. v. New York City

(1978) 438 U.S. 104, 131.) Plaintiff cannot contend he was

denied all use of his property. He was neither deprived of his

right to exclude others from his land nor denied the right to

sell the property. Moreover, the record does not show

whether any final action has been taken on his building permit

application filed in December 1985. As earlier noted, no

action had been taken by the city as of the time the summary

judgment motion was heard. Consequently, plaintiff's

assertion that he has been denied the right to develop the

property is premature.4 (Williamson Planning Comm'n v.

3The record discloses that plaintiff purchased the property for $210,000

and claims it is now valueless. However, plaintiffs expert appraiser

valued the land at $1.5 million on the assumption it could be developed.

4The denial of plaintiff's application to build four 5-bedroom, 5-bath

houses of 6,000 square feet each, if it has occurred, does not constitute a

denial of all use of the land. The denial of an ability to exploit a property

interest heretofore believed available for devclopment is not a taking.

(Penna. Central Transp. Co. v. New York City, supra, 438 U.S. at p.

130.) We are informed that during the pendency of this appeal, the city in

fact did deny plaintiff's application. If he believes the denial was arbitrary

Footnote continued on next page.

a

A-8

Hamilton Bank (1985) 473 U.S. 172, 186-191; see also

MacDonald, Sommer & Frates v. Yolo County (1986) 477

U.S. ___, [91 L.Ed.2d 285, 294-296, 106 S.Ct. 2561,

2566].) In such circumstances, plaintiff could not allege and

prove a permanent taking of his property.

In any event, since the city decided not to acquire

plaintiff's property for a public purpose, the "cloud" on the

property was eventually removed. Insofar as plaintiff argues

that he suffered a temporary taking during the city's study

period, his theory is still unsound. There is no showing that

the delay in the city's processing of plaintiff's permit

application was anything more than the normal period of time

for governmental decision making. Such an interim delay

does not constitute a temporary taking.

We are guided by two high court decisions. First, in

Agins v. Tiburon (1980) 447 U.S. 255, the city downzoned

the plaintiffs’ property, restricting the number of allowable

residential dwellings. Before rezoning plaintiffs’ property, the

city had undertaken studies which recommended acquisition of

plaintiffs’ land for open space. After the rezoning, the city

filed an eminent domain proceeding but eventually abandoned

it. The plaintiffs’ inverse condemnation theory of suit was

rejected by the California Supreme Court. (Agins v. City of

Tiburon. supra, 24 Cal.3d at p. 278.) And that determination

was later upheld by the United States Supreme Court: "The

State Supreme Court correctly rejected the contention that the

municipality's good-faith planning activities, which did not

result in successful prosecution of an eminent domain claim,

so burdened the appellants’ enjoyment of their property as to

constitute a taking. See also City of Walnut Creek v.

Leadership Housing Systems, Inc., 73 Cal. App.3d 611, 620-

or unreasonable, plaintiff could elect to seek administrative mandamus

relief.

A-9

624, 140 Cal. Rptr. 690, 695-697 (1977). Even if the

appellants’ ability to sell their property was limited during the

pendency of the condemnation proceeding, the appellants were

free to sell or develop their property when the proceedings

ended. Mere fluctuations in value during the process of

governmental decisionmaking, absent extraordinary delay, are

‘incidents of ownership. They cannot be considered as a

“taking” in the constitutional sense.’ [Citations.]" (Agins v.

Tiburon, supra, 447 U.S. 255, 263, fn. 9, emphasis added.)

Although the United States Supreme Court in First English

has now overruled the California Supreme Court's Agins

decision on another point, there is nothing in First English

which alters the established principle that the interim burden

imposed on a landowner during the government's decision

making process, absent unreasonable delay, does not

constitute a taking.

Indeed, the First English court distinguished Agins v.

Tiburon, supra, 447 U.S. 255, 263, on the ground that in

contrast to the ordinance in First English which prohibited all

building, “the preliminary activity [in Agins) did not work a

taking.” The First English court emphasized that the taking in

the case before it was “quite different" (107 S.Ct. at p. 2384)

from the situation involving “normal delays in obtaining

building permits ...." (/d., 107 S.Ct. at p. 2389.)

We therefore discern from Agins and First English that the

temporary suspension of land use which occurs during the

normal governmental decision making process does not

constitute a taking. Accordingly, the interim delay which

occurred herein while the city studied the possible acquisition

of plaintiff's property as an open space area did not constitute

a compensable taking.

————— ee |

Ill.

Plaintiff also asserts, however, that the city's delay in

acting upon his application was not “normal,” but rather

excessive and unreasonable. The argument finds no support

in the record. Indeed, as the city correctly points out, any

excessive delay was attributable solely to plaintiff's own

conduct and inaction. Any delay attributable to the city was

both reasonable and incidental.§

In short, the delays encountered in acting upon the permit

application were directly attributable to plaintiff. The time

attributable to the city's routine processing of the application

cannot be described as either excessive or unreasonable.

SNot surprisingly, plaintiff does not contend that the city acted

improperly in undertaking an environmental review before acting upon

his building permit application. Under CEQA, the city's environmental

review procedures were mandatory. (Pub. Resources Code, § 21000 et

seq.)

SWe recite the salient sequence of events: On September 4, 1980,

plaintiff filed his building permit application; in November 1980, the city

completed its initial environmental study and concluded the project may

have a significant environmental impact; in April 1981, five months after

the city requested an EIR, plaintiff's consultant first met to confer with

city officials.

In September 1981, plaintiff submitted a preliminary draft EIR; in

January 1982, the planning commission rescinded the EIR requirement

pending another initial study.

In March 1982, the planning department completed its study and

concluded that only a negative declaration would be required; the planning

department then requested plaintiff to furnish data to enable the city to

complete the negative declaration, including an analysis of the cumulative

impact of hillside development, a site survey showing the trees to be

removed, a report on fire-fighting problems, a soil test relating to

problems of landsliding and a a transportation analysis. Notwithstanding

City's repeated requests for the essential information, some three and one-

half years expired before plaintiff submitted the final item of information

(the site survey) in September 1985. The following month, city issued

the negative declaration.

A-11

Finally, we reject plaintiff's argument that the issue of

unreasonable delay should not have been decided on a motion

for summary judgment. The material facts were undisputed.

The only question was whether the city's conduct constituted

"normal" as opposed to "excessive" delay in the processing of

plaintiff's permit application. That question became one of

law properly decided in a summary judgment proceeding.

(See Angelus Chevrolet v. State of California (1981) 115

Cal.App.3d 995; County of Los Angeles v. Security Ins. Co.

(1975) 52 Cal. App.3d 808.)

The judgment is affirmed.

Newsom, J., and Holrdahl, J., concurred.

B-1

APPENDIX B

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

Ist District, Division 1, No. A034516

S003657

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

GUINNANE et al.

V.

CITY AND COUNTY OF SAN FRANCISCO et al.

Appellants’ petition for review DENIED.

LUCAS

Chief Justice