Petition for Writ of Certiorari — Moore v. City of Costa Mesa

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BO. 1578

No.

In The

Supreme Court of the United States

October Term, 1989

—_

GARY MOORE,

Petitioner,

CITY OF COSTA MESA, a municipal

corporation, and THE CITY COUNCIL

OF THE CITY OF COSTA MESA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

RONALD A. ZUMBRUN

Of Counsel *EDWARD J. CONNOR, JR.

Terry MOsHENKO *Counsel Of Record

A Professional Law JoHN M. GROEN

Corporation Pacific Legal Foundation

4400 MacArthur 2700 Gateway Oaks

Boulevard, Suite 330 Drive, Suite 200

Newport Beach, CA 92660 Sacramento, CA 95833

Telephone: (714) 972-9725 Telephone: (916) 641-8888

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. When a municipality’s regulatory actions over

private property fail to substantially advance legitimate

governmental interests and are determined to invade the

owner’s property rights, can the owner state a claim for

compensation under the Just Compensation Clause of the

Fifth Amendment? Did the Court of Appeals err in limit-

ing the owner’s remedy to invalidation of the regulatory

action?

2. Did the Court of Appeals err in dismissing plain-

tiff’s temporary takings claim on the ground that a tem-

porary taking is compensable only when the plaintiff

alleges that substantially all economically viable use of

the property was denied?

3. Is:the Just Compensation Clause applicable to

some regulatory takings theories but not to others? Spe-

cifically, may a claim for compensation and temporary

taking be stated under either prong of Agins v. City of

Tiburon, 447 U.S. 255, 260 (1980), which establishes that a

land use regulation effects a taking if it fails to “substan-

tially advance legitimate state interests, or denies an own-

er economically viable use of his land.” (Emphasis added;

citation omitted.)

PARTIES

The caption contains the names of all parties to this

action.

ili

TABLE OF CONTENTS |

Page

8g BG ty ao 2 a i

ee a ess oa yeereueneeseets ii

Teme wr Auer iee CITED. ...........0000:- iv

Es 5 case keveevunebeteevsessevesses 1

tLe Che Siden vesnns¥eddewes sss 2

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

pe ee Bey) Bet 2

REASONS FOR GRANTING REVIEW.............. 8

I. THE DECISION BELOW INVOLVES AN IMPOR-

TANT QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN, BUT SHOULD BE, SETTLED

es shai aos oe aes ore ah tees +s 8

Il. THE DECISION BELOW CONFLICTS WITH

OTHER CIRCUIT COURT DECISIONS......... 10

eS ads FAV GN epee keseeteeseurnss 12

TABLE OF AUTHORITIES CITED

Page

Cases

A.A. Profiles, Inc. v. City of Ft. Lauderdale,

S50 F.2d 1609 Cth Cie. TSGS)... 2c. wc ccscccccccens: 11

Agins v. City of Tiburon, 24 Cal. 3d 266 |

(1979), aff'd on other grounds, 447 U.S. 255

RUPE 6540 ccc okseecetessiuecseretesss 4,5, 7, 8, 9, 10

Bello v. Walker, 840 F2d 1124 (3d Cir. 1988) ........ 11

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304

i, SPP Prer rr rrTErty Corrs. pyri 7, 8, 9, 10, 11

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

PER PEPE er ee oe ke pty per eee 5

MacDonald, Sommer & Frates v. Yolo County,

SF Be. ee SU rks de wa boeken eeeuveceeasnys ie

Nollan v. California Coastal Commission, 483 U.S.

Ee SUP ok ed cra hav ar oeateeevacnasewauesag ests 7, 8

Norco Construction, Inc. v. King County, 801 F.2d

oe. fe | eer rr er rer rT rere 12

Poirier v. Grand Blanc Township, 167 Mich. App.

770, 423 N.W.2d 351 (Mich. App. 1988)........... 11

San Diego Gas & Electric Co. v. City of San Diego,

Ce See Ge EE occa eteceedeuucgurewedareers rs 9

Sederquist v. City of Tiburon, 765 F.2d 756 (9th

a SE ark hia ey ha oe vere ace mace re eee 11, 12

Wheeler v. City of Pleasant Grove, 664 F.2d 99 (5th

COR TREE co scace cece te cene eee re see arn eran. 10

Wheeler v. City of Pleasant Grove, 746 F.2d 1437

Si RS A SO Cor Ee re re rer Li rey: 10, 11

nein.

TABLE OF AUTHORITIES CITED - Continued

Wheeler v. City of Pleasant Grove, 833 F.2d 267

CRAG Gi Fi ia chee eda cedes cuter wieeearernes:

Williamson County Regional Planning Commis-

sion v. Hamilton Bank, 473 U.S. 172 (1985)....3

STATUTES

26 USE. BS TAs x ve dae caudeeteieeressaeeees

DS TREN OR chi kone d ee enee eee tees eee

2 USS. & Wins escviensee b A are eens ee

RULES

Federal Rule of Civil Procedure 12(b)(6)..........

UNitTED States CONSTITUTION

Parnes Pa nooo ok hc 6k 065 eee ves

POUrtRetE ARROUIIOEE 6 oo odo 6 66 0055480

Page

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No.

In The

Supreme Court of the United States

October Term, 1989

GARY MOORE,

Petitioner,

CITY OF COSTA MESA, a municipal

corporation, and THE CITY COUNCIL

OF THE CITY OF COSTA MESA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Gary A. Moore seeks review of a decision of the

Ninth Circuit Court of Appeals dismissing his suit for

failure to state a claim under Federal Rule of Civil Pro-

cedure 12(b)(6).

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported at 886 F.2d 260 (9th Cir.

1989), and is reproduced as Appendix (App.) A. The

opinion of the United States District Court for the Central

District of California is reported at 678 F. Supp. 1448

(C.D. Cal. 1987), and is reproduced as Appendix B. The

unpublished opinion of the California Court of Appeal

for the Fourth Appellate District, Division Three, in the

preceding state court action is reproduced as Appendix E.

The Judgment of the Orange County Superior Court in

the preceding state court action is reproduced as Appen-

dix F.

. 4

JURISDICTION

The United States Court of Appeals for the Ninth

Circuit entered its judgment on September 26, 198°, and

filed its order denying a petition for rehearing on Janu-

ary 9, 1990. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides: “[Nlor shall private property be taken for

public use, without just compensation.”

The Fourteenth Amendment to the United States

Constitution provides: “[NJor shall any State deprive any

person of life, liberty, or property, without due process of

law.”

_—

STATEMENT OF THE CASE

In this case, the Ninth Circuit has denied temporary

taking damages even though there is no dispute that the

Patent tell st a AAR IE NO oa

2 te RAW See

government action failed to substantially advance legiti-

mate state interests.

The essential facts necessary for consideration of this

petition are straightforward. Moore owns two adjacent

lots on Wilson Street in the City of Costa Mesa. App.

at A-2. The lots are zoned C1, local business district. App.

at E-2. At present, there are two older houses on the lots;

Moore lives in one of the houses and runs a carpet

installation business out of the other.

In 1983, Moore wanted to expand his carpet business.

He therefore requested zoning variances from the city for

a permit to construct a commercial building on the two

lots to be used as warehouse and office space. App.

at E-2. The city granted the zoning variance, but with the

condition that he deed to the city approximately 10% of

his land so that the road could be widened in compliance

with the city’s master plan.! App. at A-2. :

After unsuccessfully appealing the conditional vari-

ance to the planning commission and the city council,

Moore filed an action on May 21, 1984, in state court

seeking relief from the condition. App. at B-2. Moore’s

' Wilson Street is currently 40 feet wide curb-to-curb in a

60 foot right-of-way. The city’s Master Plan of Highways

shows that Wilson Street will eventually be widened to a

70 foot street in an 84 foot right-of-way. App. at E-1-2.

2 The city does not contest that Moore has exhausted all of

the remedies available to him under state law. Compare Mac-

Donald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986);

Williamson County Regional Planning Commission v. Hamilton

Bank, 473 U.S. 172 (1985). See Moore v. City of Costa Mesa, 678 F.

Supp. at 1451 n.5, reproduced at Appendix B-8.

state court action sought a writ of mandamus to set the

condition aside, a declaration that the condition resulted

in a taking without compensation, damages for inverse

condemnation, and general damages and attorney’s fees.°

Moore alleged that any burden on the adjoining

street created by his proposed project was not sufficient

to justify the dedication requirement demanded by the

city. The state court agreed and granted mandamus and

declaratory relief, finding the evidence insufficient to

support any relationship between the variance request

and the city’s proposed street widening project. App.

at F-2; App. at A-3. On appeal, the California Court of

Appeal for the Fourth District, Division Three, affirmed

the decision in an unpublished opinion. The California

Supreme Court denied review on July 10, 1986. App.

at B-3.

Although the state trial court issued the peremptory

writ forbidding the city from imposing the condition, the

inverse condemnation claim for compensation was re-

served for trial. App. at A-4; App. at F-3. However,

because California law at that time did not allow dam-

ages for a regulatory taking (see Agins v. City of Tiburon,

24 Cal. 3d 266 (1979), aff’d on other grounds, 447 U.S. 255

* Moore also sought a declaration that Article 22, Section

13-316 of the city’s Municipal Code was unconstitutional on its

tace. This section requires land dedication as a condition to

granting a building permit where the master plan calls for

additional property for street widening. The ordinance was

tound facially valid by the state trial court and this ruling is

not in issue here. See App. at E-2.

(1980)) Moore did not attempt to set a trial date and

secure his compensation through the state court.4 Instead,

on February 20, 1987, Moore filed this suit in federal

court under 42 U.S.C. § 1983 alleging his rights were

violated under the Fifth and Fourteenth Amendments of

the United States Constitution. 28 U.S.C. § 1331(1) (juris-

diction of District Court).

Moore alleged that the City of Costa Mesa denied

him his right to use and develop his property free of

unreasonable restrictions or conditions. App. at C-3.

Moore alleged that the imposition of the unlawful dedica-

tion requirements, although invalidated after more than

two years of litigation, entitled him to recover interim

damages. The results of the state court proceedings were

4 Moore’s taking claim in federal court is in compliance

with this Court’s ripeness doctrine established in Williamson

County Regional Planning Commission v. Hamilton Bank, 473 U.S.

172. Under that decision, a claimant must have a final decision

from the local agency and must pursue available state compen-

sation remedies before a claim in federal court is ripe. There is

no question that Moore had secured a final decision regarding

the dedication requirement attached to the zoning variance. See

Footnote 3, infra. On the state compensation requirement, Wil-

liamson County requires pursuing reasonable, certain, and ade-

quate state procedures that “exist at the time of the taking.” Id.

at 194. In Moore’s case, at the time of the taking and when

Moore filed his action in federal court, there was not a pro-

cedure available in California for seeking compensation for a

regulatory taking. The sole remedy was to seek declaratory

relief or mandamus to invalidate the regulation. Agins v. City of

Tiburon, 24 Cal. 3d 266. In an identical situation, the Ninth

Circuit Court of Appeals has properly recognized that a claim

for compensation in federal court is ripe. Hoehne v. County of

San Benito, 870 F.2d 529, 533-34 (9th Cir. 1989).

alleged as well as the California law precluding Moore

from recovering interim damages for a regulatory taking

and limiting his state remedies to mandamus relief in-

validating the dedication requirement. App. at C-4-5.

Since Moore was pursuing his damages in federal

court, the state court on September 7, 1988, issued a

ruling abating and staying the state court action pending

resolution of the compensation claim in the federal

courts. App. at D.°

The Ninth Circuit has now ruled that Moore’s com-

plaint failed to state a valid claim for which compensa-

tion is available. Despite the fact that “the California

courts determine[d] that the conditional variance invaded

Moore’s property rights” (App. A-9), the court neverthe-

less ruled that a compensable takings claim had not been

stated because Moore had not been denied all economi-

cally viable use of the property.

> Given the procedural posture of the damages issue, the

prior state court action does not present a res judicata issue.

The Ninth Circuit in the opinion below correctly explained:

“The Superior Court of California did not decide

whether Moore was entitled to compensation for the

alleged temporary taking. Instead, after the court

ordered the writ, found that the Code section was

not unconstitutional, and awarded attorney’s fees

and costs, it stated ‘[a]ll other issues reserved for

trial.’

“On appeal, the City conceded at oral argument

that res judicata does not apply to the facts of this

case.” App. A-4 n.2.

SOS Pile tite CUIAB UE wa a a eae

ibis Pe

The Ninth Circuit’s reasoning initially recognizes

that under this Court’s decision in Agins v. City of Tiburon,

447 U.S. 255, a land use regulation effects a taking if it

does not substantially advance legitimate state interests,

or denies the owner economically viable use of the land.

App. at A-5 (citing Agins, 447 U.S. at 260). The first prong

of the Agins formulation was applied by this Court in

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

where it was held that a condition attached to the issu-

ance of a development permit effected a taking because

the condition did not substantially advance the state in-

terests claimed to justify the exaction. Moore’s case is like

Nollan. In both cases a development permit was condi-

tioned by a requirement for land dedication (Nollan: pub-

lic access easement; Moore: street widening dedication)

which was found to be invalid because the exaction was

not sufficiently related to the impacts of the proposed

use.

Despite the obvious parallels between Moore and

Nollan, and despite the fact that the California courts had

already ruled the city’s land dedication requirement to be

unlawful regulation, the Ninth Circuit held that Moore

had not stated a claim for relief and would not have an

opportunity to attempt to prove his damages at trial.

The Ninth Circuit’s reasoning was based on the fact

that Moore’s complaint did not allege that he was denied

substantially all economically viable use of the property.

App. at A-7. The Court of Appeals interpreted this

Court's ruling in First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), as

authorizing interim damages for temporary takings only

in cases where it is alleged, as was done in First Church,

that all use of the property is denied. App. at A-8. Since

Moore’s ternporary taking ciaim was based on an invalid

condition attached to a zoning variance request, the court

ruled that this invasion of property rights did not state a

claim for interim damages.

The Court of Appeals correctly notes that “in Nollan

the [Supreme] Court did not decide whether damages

could be recovered for the time a conditional coastal

development permit was in effect. The Court merely de-

clared invalid the conditional permit, which required a

public easement across a beach before a new house could

be constructed.” App. at A-9.

That issue is now squarely presented in this case.

REASONS FOR GRANTING REVIEW

THE DECISION BELOW INVOLVES AN IMPORTANT

QUESTION OF FEDERAL LAW WHICH HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY THIS COURT

As the Ninth Circuit explained, this Court has not

resolved whether interim damages are available for a

temporary taking based on the first prong of the Agins

formulation. Nollan did not present that issue since the

plaintiff there did not pursue damages. Nollan, 483 U.S.

at 828.

Similarly, the decision in First Church does not ad-

dress whether interim damages are available when a land

use regulation is found to constitute a taking on the

ground that the regulation fails to substantially advance

legitimate state interests. The decision in First Church,

although seeming to set forth a broad constitutional rule

requiring compensation whenever a regulatory action re-

sults in a taking, expressly limits its holding to the facts

presented where the ordinance denied the owner all use

of the property. First Church, 482 U.S. at 321. First Church

therefore established that temporary taking claims based

on the second prong of Agins are maintainable, but left

open the question of whether interim damages can be

recovered when the regulatory action is found to consti-

tute a taking based on the first prong of Agins.

This issue is of national significance and should be

resolved by this Court. The temporary taking question

has been of special interest to this Court, having at-

tempted to reach the issue on four separate occasions

prior to First Church. The Court now has an opportunity

to complete its task and resolve whether interim damages

are available for all temporary takings (i.e., first and

second prong takings) or whether the compensation rem-

edy applies only for takings alleging temporary denial of

all economically viable use.

The considerations which supported granting review

in First Church apply equally to this case. Like First

Church, the property owner here is being limited to seek-

ing invalidation of the regulatory action through a man-

damus proceeding and is being denied an opportunity to

attempt to prove damages at trial. Whether or not interim

damages are available is of critical importance to land use

6 Agins, 447 U.S. 255; MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340; Williamson County, 473 U.S. 172; San Diego

Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981).

regulators who must know the extent of potential liability

when enacting land use regulations. Similarly, property

owners responding to regulatory actions must be in-

formed of the dimensions of the constitutional protection

afforded by the Just Compensation Clause.

THE DECISION BELOW CONFLICTS WITH

OTHER CIRCUIT COURT DECISIONS

As explained above, the Ninth Circuit decision pre-

cludes recovery for interim damages based on regulatory

actions which fail to substantially advance legitimate

government interests under the first prong of Agins. The

Ninth Circuit decision limits the holding in First Church

to situations where the property owner alleges that the

regulation denies all use of the property. The decision

below is in direct conflict with other Circuit Court of

Appeals decisions.

For example, the decision below is in direct conflict

with the decisions by the Fifth and Eleventh Circuits. In

Wheeler v. City of Pleasant Grove, 664 F.2d 99 (5th Cir. 1981)

(Wheeler I), the Fifth Circuit held that an arbitrary prohi-

bition on the construction of an apartment building effec-

ted a taking. Id. at 100. Even though the property could

have been used to construct a different type of building,

1.e., alternative uses of the property were available, this

fact was irrelevant to the takings claim based on the

arbitrary deprivation of the right to use and develop the

property ina lawful manner. Although the restriction was

invalidated, the Eleventh Circuit nevertheless recognized

in Wheeler v. City of Pleasant Grove, 746 F.2d 1437 (11th Cir.

VA AE eT ee Bn ae Ae Sintec a te Peng th > att pl MiP, Teach ied

)

sited oi a lh ls Se

eis 1

Lal ai li

1984) (Wheeler II), that a compensable temporary taking

occurred during the time the restriction was in effect.

Wheeler II, 746 F.2d at 1440-41. In Wheeler v. City of Pleas-

ant Grove, 833 F.2d 267 (11th Cir. 1987) (Wheeler III), the

Court reaffirmed that interim damages were available

under First English. Id. at 270; see also A.A. Profiles, Inc. v.

City of Ft. Lauderdale, 850 F.2d 1483, 1487-88 (11th Cir.

1988); Poirier v. Grand Blanc Township, 167 Mich. App. 770,

423 N.W.2d 351 (Mich. App. 1988) (allowing temporary

taking damages for wrongful rezoning even though origi-

nal zoning was restored and use of the property was

never precluded).

In contrast with the decision below, the Wheeler deci-

sions recognize that a temporary taking requiring com-

pensation for interim damages can be stated as a result of

arbitrary land use restrictions even though alternative

uses may exist for the property. The opinion below re-

jects, as a matter of law, petitioner’s ability to go forward

to prove his claim on the identical takings theory.”

The decision below also conflicts with decisions from

within the same circuit. In Sederquist v. City of Tiburon,

765 F.2d 756 (9th Cir. 1984), the property owners chal-

lenged a regulation imposing conditions on their ability

? Adding further to the conflict among the various circuits

is the Third Circuit’s decision in Bello v. Walker,

840 F.2d 1124 (3d Cir. 1988). Like the Moore decision now on

petition for certiorari, the court in Bello interpreted First Church

as authorizing temporary taking damages only when all eco-

nomic use of the property is denied. Bello, 840 F.2d at 1131.

to file applications for property development. The Ninth

Circuit stated:

“By facially challenging these conditions the

landowners may be able to establish a taking. In

Agins, the Supreme Court identified two means

by which a ‘taking’ may occur.

“Consistent with the first prong, a ‘use re-

striction on real property may constitute a tak-

ing if not reasonably necessary to the

effectuation of a substantial public purpose.’ ...

[A]ssuming the law as applied to the factual

findings made at trial show the conditions im-

posed are illegal under California law, those

conditions are not ‘reasonably necessary’ to ad-

vance those interests. If the landowners can es-

tablish that situation, the City may have ‘taken’

the landowners’ property.” Sederquist, 765 F.2d

at 761 (citations omitted).

Similarly, Norco Construction, Inc. v. King County,

801 F.2d 1143 (9th Cir. 1986), authorizes inverse condem-

nation claims based on government actions which unrea-

sonably delay property development. Id. at 1145. The

plaintiff here should likewise have an opportunity to

show that the unreasonable delay caused by imposition

of an illegal dedication requirement was compensable.

fin,

CONCLUSION

Whether the Just Compensation Clause requires in-

terim compensatory damages for temporary takings

which occur as a result of regulatory actions which fail to

substantially advance legitimate state interests is an issue

of critical importance to property owners and land use

regulators. The federal courts are split as to how to re-

solve this issue.

Under the Ninth Circuit’s decision, a property owner

can be subjected to years of delay and consequent dam-

age due to regulatory action that does not further a

legitimate state interest. Ultimately, the property owner

may prevail in having the regulatory action ruled invalid,

but under the decision below, will be told there is no

compensation remedy and that the sole recourse is in-

validation.

Of course, First Church was necessarily limited to the

facts of that case where the property owner allegedly was

deprived of all use. The question presented here is

whether a compensation remedy is required where the

taking claim is based upon failure of the regulatory action

to substantially advance a legitimate state interest. The

present case should now be reviewed to allow the Court

to answer this question which was left unresolved in First

Church.

DATED: April, 1990.

Respectfully submitted,

Of Counsel RONALD A. ZUMBRUN

TERRY MOSHENKO *EDWARD J. CONNOR, JR.

A Professional Law *Counsel of Record

Corporation JouN M. Groen

440 MacArthur Boulevard, Pacific Legal Foundation

Suite 330 2700 Gateway Oaks

Newport Beach, CA 92660 Drive, Suite 200

Telephone: (714) 972-9725 Sacramento, CA 95833

Telephone: (916) 641-8888

Attorneys for Petitioner

APPENDIX

AA-1

APPENDIX AA

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

(Filed Jan. 9, 1990)

GARY A. MOORE, ) No. 87-6432

Plaintiff-Appellant, D.C. No.

‘i ) CV87-1125MRP

CITY OF COSTA MESA, et al, } ORDER

)

Defendants-Appellees.

Before: HALL and LEAVY, Circuit Judges, and

GEORGE,” District Judge

The panel has voted to deny the petition for rehear-

ing. Judges Hall and Leavy have voted to reject the

suggestion for rehearing en banc, and Judge George has

so recommended.

The full court has been advised of the en banc sug-

gestion and no judge of the court has requested a vote on

it.

The petition for rehearing is DENIED and the sugges-

tion for rehearing en banc is REJECTED.

* The Honorable Lloyd D. George, United States District

Judge, District of Nevada, sitting by designation.

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A-1

APPENDIX A

Gary A. MOORE, Plaintiff-Appellant,

CITY OF COSTA MESA, et al.,

Defendants-Appellees.

No. 87-6432.

United States Court of Appeals,

Ninth Circuit.

Argued Aug. 3, 1988.

Submitted Aug. 26, 1988.

Decided Sept. 26, 1989.

Terry M. Moshenko, Newport Beach, Cal., for plain-

tiff-appellant.

Richard Booth and Larry T. Pleiss, Madory, Booth,

Zell and Pleiss, Tustin, Cal., for defendants-appellees.

Appeal from the United States district court for the

Central District of California.

Before HALL and LEAVY, Circuit Judges, and

GEORGE”, District Judge.

LEAVY, Circuit Judge:

OVERVIEW

The appellant Gary Moore (Moore) claims that a con-

ditional variance requiring part of his property to be

deeded to the City of Costa Mesa (the City) was a partial

*The Honorable Lloyd D. George, United States District Judge

for the District of Nevada, sitting by designation.

A-2

temporary taking in violation of the fifth amendment, for

which he is owed compensation. The conditional variance

ultimately was declared invalid by the California courts.

We affirm the decision of the district court that the

conditional variance was not a violation of the takings

clause for which compensation is owed.

FACTS

Moore owns two adjacent lots, each containing a

house, on Wilson Street in Costa Mesa. Moore lives in one

of the houses and runs his carpet installation business out

of the other. In 1983, Moore requested a zoning variance

from the city so he could construct a large commercial

building on the two lots.

The City’s master plan called for proposed widening

of Wilson Street. The City granted Moore the zoning

variance, but with the condition that he deed to the City

that part of his land needed for the proposed widening

project. The condition was part of a City policy! for

proposed developments that would increase traffic on a

street slated for widening. Approximately ten percent of

Moore’s entire parcel was needed for the proposed wid-

ening.

Moore unsuccessfully appealed the conditional vari-

ance to the Costa Mesa Planning Commission and to the

City Council. He filed a petition for a writ of mandamus

and a complaint for declaratory relief and damages

' Costa Mesa Municipal Code, Article 22, Section 13-316,

Street Dedications.

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A-3

against the City in Orange County Superior Court. Moore

requested: (1) the condition be set aside, (2) a declaration

that the condition was unconstitutional, (3) damages for

inverse condemnation, and (4) general damages and at-

torney’s fees. The court granted Moore mandamus and

declaratory relief, finding the evidence insufficient to

support any relationship between the proposed widening

project and the expansion of Moore’s business premises.

The court issued a peremptory writ forbidding the City to

impose the condition. However, the Superior Court spe-

cifically found that the City’s policy was not unconstitu-

tional on its face. The Court of Appeals affirmed the

decision and the California Supreme Court denied re-

view.

In 1987, Moore sued in federal court under 42 U.S.C.

§ 1983, alleging his rights were violated under the takings

clause of the fifth amendment and the equal protection

clause of the fourteenth amendment, as well as his sub-

stantive and due process rights under the fourteenth

amendment. Moore claimed the three year delay from

1983 to 1986 in obtaining a building permit was an uncon-

stitutional temporary taking of his property, thereby enti-

tling him to damages and attorney’s fees and costs. The

city moved to dismiss the complaint for failure to state a

claim upon which relief can be granted under Federal

Rules of Civil Procedure 12(b)(6).

The district court dismissed Moore’s complaint with

prejudice. The court sua sponte applied res judicata to

Moore’s claims, finding that he had presented a claim for

money damages to the state court, and that the state court

had rendered judgment adversely to Moore on that issue.

Alternatively, the district court found that Moore had

A-4

failed to state a claim for a taking without compensation

in violation of the fifth amendment. A motion for recon-

sideration was denied, and. Moore appealed. On appeal,

Moore argues only the takings claim.?

DISCUSSION

Standard of Review

A dismissal for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6) is reviewed de

novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d

547, 552 (9th Cir.1984). Review is limited to the contents

of the complaint. Id. A complaint should not be dismissed

“unless it appears beyond doubt that plaintiff can prove

no set of facts in support of his claim which would entitle

him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.

99, 101-02, 2 L.Ed.2d 80 (1957). All allegations of materia]

fact are taken as true and construed in the light most

favorable to the nonmoving party. Western Reserve Oil &

Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert.

denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 773 (1986).

Motions to dismiss for failure to state a claim must be

viewed with particular skepticism in cases involving

2 The Superior Court of California did not decide whether

Moore was entitled to compensation for the alleged temporary

taking. Instead, after the court ordered the writ, found that the

Code section was not unconstitutional, and awarded attorney’s

fees and costs, it stated “[a]ll other issues reserved for trial.”

On appeal, the City conceded at oral argument that res

judicata does not apply to the facts of this case. Therefore, we

need not address the district court’s application of this doc-

trine.

A-5

claims of inverse condemnation. Sinaloa Lake Owners

Ass'n v. City of Simi Valley, 864 F.2d 1475, 1478 (9th

Cir.1989) (citing Halli v. City of Santa Bartara, 833 F.2d

1270, 1274 (9th Cir.1986), cert. denied, __ U.S. __,

108 S.Ct. 1120, 99 L.Ed.2d 281 (1988)).

Whether Moore’s Complaint States a Claim for Compensation

The fifth amendment guarantees that private proper-

ty shall not “be taken for public use without just compen-

sation.” Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138,

65 L.Ed.2d 106 (1980). It is established doctrine that

“ ‘while property may be regulated to a certain extent, if

regulation goes too far it will be recognized as a taking.’ ”

First Evangelical Lutheran Church v. Los Angeles County,

482 U.S. 304, 316, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250

(1987) (quoting Pennsylvania Coal Co. v. Mahon, 260 U'S.

393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922)). A taking

may be found without any physical invasion where ” ‘a

public entity acting in furtherance of a public project

directly and substantially interferes with property rights

and thereby significantly impairs the value of proper-

ty....’” Martino v. Santa Clara Water Dist., 703 F.2d 1141,

1147 (9th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 151,

78 L.Ed.2d 141 (1983) (quoting Richmond Elks’ Hall Ass‘n

v. Richmond Redevelopment Agency, 561 F.2d 1327, 1330 (9th

Cir.1977)). The application of a general zoning law to

particular property effects a taking if the ordinance does

not substantially advance legitimate state interests, or

denies an owner the economically viable use of his land.

Agins, 447 U.S. at 260, 100 S.Ct. at 2141 (citations omit-

ted).

A-6

The governmental action that results in a taking of

property necessarily implicates the “ ‘constitutional

obligation to pay just compensation.’ ” First Evangelical,

482 US. at 315, 107 S.Ct. at 2386 (quoting Armstrong v.

United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569,

4 L.Ed.2d 1554 (1960)). The Supreme Court recently has

held that compensation must be paid for the temporary

regulatory taking of all of a person’s property, until the

time the regulation is invalidated by the courts. First

Evangelical, 482 U.S. at 321, 107 S.Ct. at 2383, 2389.

However, not all regulatory invasions of property

rights amount to unconstitutional takings. See Martino,

703 F.2d at 1146 (distinguishing regulations that invade

property rights from unconstitutional takings). A regula-

tion that adversely affects property values does not con-

stitute a taking unless it destroys a major portion of the

property’s value. See Keystone Bituminous Coal Ass‘n v.

DeBenedictis, 480 U.S. 470, 496, 498, 107 S.Ct. 1232, 1248,

1249, 94 L.Ed.2d 472 (1987) (requirement that 27 million

tons of coal not be mined is not a taking when this

amount represents only 2% of owners’ coal), Hodel v.

Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264,

296-97, 101 S.Ct. 2352, 2370-71, 69 L.Ed.2d 1 (1981) (mere

enactment of regulatory statute not a taking because it

does not categorically deny surface mining and does not

regulate alternative uses to which the lands may be put),

see also Agins, 447 U.S. at 260, 100 S.Ct. at 2141 (1980)

(whether there is an unconstitutional taking depends on

whether ordinance does not substantially advance legiti-

mate state interests, or denies an owner the economically

viable use of his land), Citizens Ass‘n of Portland v. Interna-

tional Raceways, Inc., 833 F.2d 760, 762 (1987) (whether

PUN ee ee

eT Le sh oth A ale

SOP BALA AN 65

A-7

there is an unconstitutional taking depends on whether

the owner has been deprived of his property’s economi-

cally viable use). Further, “[mJere fluctuations in value

during the process of governmental decision-making, ab-

sent extraordinary delay, are ‘incidents of ownership.

They cannot be considered as a “taking” in the constitu-

tional sense.’ ” Agins, 447 U.S. at 263 n.9, 100 S.Ct. at 2143

n. 9 (quoting Danforth v. United States, 308 U.S. 271, 285,

60 S.Ct. 231, 236, 84 L.Ed. 240 (1939)), accord First Evan-

gelical, 107 S.Ct. at 2388. Finally, loss of anticipated gains

or future profits is not usually sufficient to constitute a

taking. Andrus v. Allard, 444 U.S. 51, 66, 100 S.Ct.,318, 327,

62 L.Ed.2d 210 (1979).

In his complaint, Moore alleges he suffered damages

during the time the conditional variance was imposed,

because “the costs of development and construction of

the improvements contemplated .. . has increased sub-

stantially in value and Moore has suffered additional

losses due to lack of ability to use the Subject Property

during said period.” Complaint at 5, para. 16. Moore

claims damages in excess of $25,000. It is significant that

there are no allegations that all Moore’s property was

taken, or that he was denied all or substantially all of its

economically viable use, or that there was an unreason-

able delay in the decision-making process.

Despite Moore’s citations to the recent Supreme

Court and Ninth Circuit decisions in First Evangelical and

Martino, these cases do not support Moore’s claim that his

inability to develop his property constituted an uncon-

stitutional regulatory taking for which compensation

must be paid. In First Evangelical, an interim ordinance

prohibited the construction or reconstruction of buildings

A-8

for the church’s retreat center, which had been destroyed

by a flood. 482 U.S. at 307, 107 S.Ct. at 2381-82. The

complaint alleged that the interim ordinance “denies all

use of [the property].” 482 U.S. at 308, 107 S.Ct. at 2384.

The Court decided that compensation must be paid for

the time the interim ordinance was in effect because it

denied all use of property. 482 U.S. at 321, 107 S.Ct.

at 2389. The Court explicitly did not extend its holding to

cases like Moore’s: “We limit our holding to the facts

presented, and of course do not deal with the quite

different questions that would arise in the case of normal

delays in obtaining building permits, changes in zoning

ordinances, variances, and the like which are not before

us.” Id.

Like First Evangelical, this circuit’s decision in Martino

also involved allegations that the landowners had been

deprived of all of their property’s reasonable economic

uses, by ordinances requiring permits and dedications for

a flood control project before any development could

occur. The complaint alleged that the Martinos’ property

“has been deprived of all of its reasonable beneficial

economic uses and its economic return and mar-

ketability. ...” 703 F.2d at 1144. We reversed the district

court’s grant of summary judgment to the Santa Clara

Valley Water District, finding that the complaint alleged

facts which, if true, could constitute a taking. Id. at 1142.

Unlike the regulations in First Evangelical and Mar-

tino, the conditional variance at issue here affected only a

small portion of Moore’s property. Moore does not allege

that his ongoing carpet contracting business was in any

way adversely affected by the conditional variance. Thus,

he does not allege he was deprived of substantially all

oe eee ree

A-9

reasonable use of his property. While the California

courts determine that the conditional variance invaded

Moore’s property rights, this was not an “invasion” of

sufficient magnitude to have denied Moore the “justice

and fairness” guaranteed by the fifth and fourteenth

amendments. See Martino, 703 F.2d at 1146.

The Supreme Court’s decision in Nollan v. California

Coastal Comm’‘n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d

677 (1987), also does not support Moore’s position. As

Moore concedes, in Nollan the Court did not decide

whether damages could be recovered for the time a con-

ditional coastal development permit was in effect. The

Court merely declared invalid the conditional permit,

which required a public easement across a beach before a

new house could be constructed. 107 S.Ct. at 3148-50.

Consequently, even taking all Moore’s allegations as

true, construing them in the light most favorable to him,

and viewing the dismissal with skepticism, it appears

beyond doubt that Moore can prove no set of facts in

support of his claim which would entitle him to relief.

His allegations are insufficient to state a claim for uncon-

stitutional regulatory taking for which compensation is

due, and there is no case law that supports his position.

The district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim was proper.

AFFIRMED.

B-1

APPENDIX B

Gary MOORE, Plaintiff,

CITY OF COSTA MESA, et

al., Defendants.

No. CV-87-1125 MRP.

United States District Court,

C.D. California.

Aug. 26, 1987.

Hugh R. Coffin, Pizer & Michaelson, Inc., Santa Ana,

Cal., for plaintiff.

Larry T. Pleiss, Madory, Booth, Zell & Pleiss, Tustin,

Cal., for defendants.

AMENDED MEMORANDUM

OF DECISION

PFAELZER, District Judge.

This Court heard oral argument on plaintiff Gary

Moore’s motion for a new trial on August 10, 1987. Hav-

ing read the papers submitted and considered the argu-

ments contained therein, the Court denies plaintiff's

motion.

|. Facts

Plaintiff Gary Moore owns two adjacent lost within

the defendant City of Costa Mesa. At present, there are

houses on each of the two lots.! Moore lives in one house,

' The record does not reflect whether Moore has torn

down the houses and begun to construct his office (continued)

B-2

and used the other for his carpet installation business. In

late 1983, Moore requested zoning variances to build a

| large commercial building, with both warehouses and

office space, on the two lots. Moore’s lots front on Wilson

Street in Costa Mesa. The city’s master plan calls for the

eventual widening of Wilson Street. The city granted

Moore his zoning variance and permits on the condition

that he deed over to the city the land necessary for the

| widening of Wilson Street. This land represented just

over ten percent of Moore’s entire parcel. The city re-

quired this condition as part of a stated policy covering

situations in which a proposed new development would

increase traffic on a street that needed widening. Moore

unsuccessfully appealed to the Costa Mesa Planning

Commission and to the City Council. On May 21, 1984,

having exhausted his administrative remedies, Moore

sued the city in Orange County Superior Court request-

ing (1) mandamus to set aside the condition; (2) declara-

tory relief that the condition was invalid; (3) damages for

inverse condemnation; and (4) general damages and at-

torney’s fees. The Superior Court, which reviews zoning

decisions under a “substantial evidence” standard,

granted Moore mandamus and declaratory relief. It held

that the city’s policy was not reasonably related to the

relatively small projected increase in traffic from the new

building. Moore states that he decided to abandon his

claims for damages in the Superior Court, although he

building. However, it is clear that the parties do not dispute

that Moore had the use of the houses for the entire period of

the alleged taking, from 1983 until 1986.

B-3

never filed any formal document to that effect. The Court

of Appeals, in an unpublished decision, affirmed the

Superior Court ruling on a 2-1 vote, with the dissenting

judge voting to uphold the city’s policy. On July 10, 1986,

the Supreme Court of California denied review, with

Justice Reynoso dissenting.

On February 20, 1987, Moore filed suit in this Court

under 42 U.S.C. § 1983. Although he was awarded declar-

atory relief in the state courts, he claims that the delay in

obtaining his permit from 1983 to 1986 constituted an

unconstitutional temporary taking of his property, entit-

ling him to monetary damages. He alleges that the delay

violated his rights under the Taking Clause of the Fifth

Amendment, the Equal Protection Clause of the Four-

teenth Amendment, and his rights to both substantive

and procedural due process under the Fourteenth

Amendment.? Defendants are the City of Costa Mesa, the

City Council of Costa Mesa, and ten unnamed Doe defen-

dants.

This Court heard oral argument on June 22, 1987 on

defendants’ motion to dismiss Moore’s complaint. The

Court entered judgment dismissing Moore’s complaint

with prejudice on July 6, 1987, on the grounds that it was

barred by res judicata and that it failed to state a claim.

2 Moore’s other constitutional claims only state a cause of

action to the extent that his taking claim states a cause of

action. As discussed below, the Supreme Court has written a

number of opinions in recent years dealing with similar claims,

and has always discussed the prcblem in terms of the takings

clause. The parties’ arguments and analysis in connection with

this motion framed the issues solely in terms of the takings

clause.

B-4

On July 16, 1987, Moore timely filed a motion for a new

trial under Fed.R.Civ.P. 59, which in this context is essen-

tially the equivalent of a motion for reconsideration.

Il. Statute of Limitations

The statute of limitations in California for § 1983

actions is one year. See Wilson v. Garcia, 471 U.S. 261,

105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The parties dispute

whether the longer, pre-Wilson statute of limitations

should apply to this action, but the dispute is immaterial.

Moore’s deprivation, if any, continued until his relief in

state court was final, on July 10, 1986. This suit was filed

less than one year later, and was therefore timely even

under Wilson. Even if Moore’s cause of action somehow

accrued earlier, his state suit on the same facts tolled the

statute. See, e.g., Valenzuela v. Kraft Inc., 801 F.2d 1170 (9th

Cir. i986), modified, 815 F.2d 570 (1987); Bollinger v. Nation-

al Fire Ins. Co., 25 Cal.2d 399, 154 P.2d 399 (1944).

Ill. Res Judicata

Although the parties did not argue the issue of res

judicata in the motion to dismiss, the Court raised the

issue sua sponte. See McClain v. Apodaca, 793 F.2d 1031,

1033 (9th Cir.1986). Defendants have relied on this issue

in their opposition to the motion now before the Court.

The parties agree that Moore originally made a claim for

damages on these same facts before the state court, and

that this claim was based on essentially the same legal

theory now advanced in this Court. Moore states that he

decided to abandon this claim for damages before the

state court on the authority of Agins v. City of Tiburon,

B-5

24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979), aff'd,

447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). Agins,

in a portion of the opinion which was not reviewed by

the U.S. Supreme Court, held that money damages are

not available as a remedy for overly restrictive zoning.

This portion of Agins was recently overruled in First

English Evangelical Lutheran Church v. County of Los An-

geles,___ U.S. __, 107 S.Ct. 2378, 2387-89, 96 L.Ed.2d 250

(1987). First Church held that even a “temporary taking”

between the enactment and judicial invalidation of an

overly-restrictive land use ordinance could be compens-

able under the Fifth Amendment. See id.

Res judicata bars relitigation in federal court of any

state court judgment to the same extent that the state

would bar relitigation. See Heath v. Cleary, 708 F.2d 1376,

1379 (9th Cir.1983), 18 C. Wright, A. Miller & E. Cooper,

Federal Practice & Procedure § 4469 (1981). Moore argues

that in light of Agins, pressing his claim for money dam-

ages in state court would have been futile. However,

Moore cites no cases in support of a “futility” exception

to the principle of res judicata. Generally, a change in

controlling law will not provide an exception to res judi-

cata. See Federated Dept. Stores v. Moitie, 452 U.S. 394,

398-401, 101 S.Ct. 2424, 2427-29, 69 L.Ed.2d 103 (1981);

Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499,

1503-04 (11th Cir.1984), cert. denied, 469 U.S. 1191,

105 S.Ct. 966, 83 L.Ed.2d 970 (1985); In re Tennessee Central

Ry. Co., 498 F.2d 904, 906 (6th Cir.1974). In any case,

Moore’s claim for damages was not necessarily futile. If

he had been unsuccessful in the Superior Court, he could

have pressed his claim on appeal, and, if unsuccessful,

B-6

petitioned for certiorari to the United States Supreme

Court. This is exactly what happened in First Church.

Under California law, res judicata applies not only to

those claims actually litigated in a prior proceeding, but

also to those which could have been litigated as part of

that cause of action. The case of Hatch v. Bank of America,

182 Cal.App.2d 206, 5 Cal.Rptr. 875 (1960) is instructive.

In that case, the plaintiff successfully brought suit to

obtain possession of a truck. In a later suit, the plaintiff

sought damages for use of the truck during the period of

its conversion. The Court dismissed the second suit as

barred by res judicata on the ground that the same funda-

mental set of facts had been presented in the first action.

The Ninth Circuit has expressly applied this rule in cases

like this one where the plaintiff first brings a state court

action for mandamus, and later seeks damages in the

federal courts. In Clark v. Yosemite Community College

Dist., 785 F.2d 781, 786 (9th Cir.1986), the court held the

fact that the plaintiff abandoned his claim for damages in

state court did not negate the binding effect of that judg-

ment as res judicata. Claim preclusion applied wherever,

as here, there is an identity of facts with those in a

previous action. See McClain, 793 F.2d at 1033. The fact

that a plaintiff requests a different type of relief, or even

presents a different legal theory, does not negate or lessen

the binding effect of the previous state court judgment.?

3 To the extent that Moore argues that the state court

judgment was in error, the lower federal courts do (continued)

B-7

Therefore, the Court holds that Moore’s claim for dam-

ages under § 1983 is barred by the res judicata effect of

his state court judgment.

IV. The Merits

In the alternative, the Court holds that Moore has

failed to state a claim for taking without just compensa-

tion in violation of the Fifth Amendment. First Church

has changed the landscape somewhat in the area of tak-

ings law. See also, Nollan v. California Coastal Comm’‘n,

__ US. __, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).

In First Church, a flash-flood wiped out a camp-

ground belonging to the church. The County Council

then passed an ordinance totally barring any construction

where the flood had occurred. The church sued for dam-

ages, Claiming that this ordinance effected a taking of its

property, which was entirely within this floodplain. The

state court dismissed the damage claim, holding that

not sit as courts of appeal for state court judgments. See District

of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct.

1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S.

413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); cf. Pennzoil Co. v. Texaco,

Inc., __ U.S. __, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). To the

extent that he argues that the application of res judicata leaves

a wrong without a remedy, this contention is incorrect. Moore

effectively waived his remedy by not pursuing it in the state

court proceeding.

4 The Fifth Amendment is applied to the states by the

Fourteenth Amendment. Chicago, B. & Q.R.R. Co. v. Chicago,

166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897).

B-8

even if the ordinance was invalid, such a temporary

taking (from the time of enactment until the judicial

invalidation of the ordinance) was not compensable in

money damages, on the authority of the Supreme Court

of California in Agins. The United States Supreme Court

overruled, holding that a total government ban on the use

of a property, even if temporary in duration, could consti-

tute a “taking” for the purpose of the Fifth Amendment,

and must be monetarily compensated. See First Church,

107 S.Ct. at 2387-88; see also Martino v. Santa Clara Valley

Water District, 703 F.2d 1141 (9th Cir.) (same), cert. denied,

464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983).

First Church is like this case in that it involves gov-

ernment overregulation of temporary duration.? How-

ever, First Church is unlike this case in that it involved a

complete taking of the property at issue. In First Church,

the appellant was completely unable to use its camp-

ground as a result of the ordinance at issue. Martino

likewise involved a situation in which there had been a

complete taking; the landowners in that case were com-

pletely unable to use two undeveloped lots across which

the local water district planned to route a floodway. See

703 F.2d at 1143-44.© In contrast, in this case, Moore has

5 Defendants do not contest that Moore has exhausted all

of the remedies available to him under state law. Compare

MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340,

106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Williamson County Region-

al Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct.

3108, 87 L.Ed.2d 126 (1985).

6 In Martino, the property at issue “ ‘had[d] been deprived

of all of its reasonable beneficial economic uses and its eco-

nomic return and marketability,’ ” 703 F.2d at 1144.

B-9

been able to continue to use his property for his home

and business; he has merely been unable to build a new

and more profitable building to replace the current build-

ings.”

Moore argues in response that he city’s action did

constitute a total taking of the strip of his land nearest

Wilson Street. However, as the Supreme Court stated in

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

98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), ” ‘[t]aking’ jurispru-

dence does not divide a single parcel into discrete seg-

ments and attempt to determine whether rights in a

particular segment have been entirely abrogated. In de-

ciding whether . . . a taking [has occurred], this Court

focuses rather both on the character of the action and on

the nature and extent of the interference with rights in

the parcel as a whole[.]” See id. at 130-31, 98 S.Ct. at 2662;

see also Keystone Bituminous Coal Ass‘n. v. DeBenedictis,

___ US. __, 107 S.Ct. 1232, 1248, 94 L.Ed.2d 472 (1987);

Andrus v. Allard, 444 U.S 51, 65-66, 100 S.Ct. 318, 326-27,

62 L.Ed.2d 210 (1979). The proper focus is on Moore’s

entire parcel of land, and it is clear that the city’s condi-

tion did not constitute a taking of Moore’s entire parcel.

? At oral argument on the motion to dismiss, Moore con-

tended that the City’s action had effectively denied him all use

of his property during the pendency of his state court lawsuit.

After the Court pointed out that the complaint and the record

of the state court action (which Moore appended to the com-

plaint) revealed that this was not so, Moore conceded at the

motion for a new trial that he had had use of the two houses

during the period at issue.

Weerlea re ade

B-10

Moore does not allege any actual physical invasion of

his property; rather, he alleges a regulatory taking. Com-

pare Loretto v. Teleprompter Manhatten CATV Corp., 458 U.S.

419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).® It is settled

that government regulation does not constitute a taking

merely because it affects the value of a property. See

Agins, 447 U.S. at 263 n.9, 100 S.Ct. at 2143 n. 9; Dan-

forth v. United States, 308 U.S. 271, 285, 60 S.Ct. 231, 236,

84 L.Ed. 240 (1939).9 Regulation only constitutes a taking

if it “ “denies an owner economically viable use of his

land’ ” or if it “ ‘interfere[s] with reasonable investment

backed expectations’ ” in that use. DeBenedictis, 107 S.Ct.

at 1247 (citations omitted) (holding that Pennsylvania’s

anti-subsidance act limiting the operation of coal mines

8 Nollan, 107 S.Ct. 3141, like this case, involved a govern-

mental body’s attempt to acquire an easement over part of a

parcel of real estate in return for permitting the landowners to

develop the remainder of the parcel. Also like this case, the

governmental body’s condition of development was not rea-

sonably related to the burdens imposed by the new develop-

ment, and as a result constituted an unconstitutional taking

unless the owners were paid just compensation. However, the

landowners in Nollan did not assert that they were entitled to

damages for the period of time prior to the invalidation of the

ordinance, and the Supreme Court did not indicate that they

were entitled to such damages. The Court held only that the

permanent imposition of the condition at issue would consti-

tute a taking without just compensation, id. at 3146-48. In any

case, without the requested building permits, the landowners

in Nollan were apparently deprived of any use of the property

(the only building on the property had become uninhabitable),

unlike Moore in this case. Id. at 3143.

° Were this not the case, not only would all zoning ordi-

nances constitute takings, so too would government decisions

concerning spending, taxation, and money supply, all of which

can and do affect the value of real estate.

B-11

did not effect a taking).1° The appellant in First Church

successfully pled this; Moore has not and cannot. He

pleads that the expense of building his improvements

increased during the delay and that he lost the use of the

improvements for the period of the delay. These losses do

not rise to the level of an unconstitutional taking. See

DeBenedictis, 107 S.Ct. at 1247. Therefore, Moore’s com-

plaint fails to state a claim and his motion for a new trial

must be denied.

IT IS THEREFORE ORDERED that plaintiff’s motion

for a new trial is denied.

10 The standards applied in DeBenedictis are well-settled

law. See Hodel v. Virginia Surface Mining and Reclamation Ass‘n,

Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Agins v.

Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980);

Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383,

62 L.Ed.2d 332 (1979); Penn Central Transp. Co. v. New York City,

438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

C-1

APPENDIX C

HUGH R. COFFIN

a member of

PIZER & MICHAELSON INC.

ATTORNEYS AT LAW

2122 NORTH BROADWAY, SUITE 100

SANTA ANA, CALIFORNIA 92706

(714) 558-0535

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GARY L. MOORE,

Plaintiff,

-VSs-

CITY OF COSTA MESA, a

municipal corporation,

THE CITY COUNCIL OF THE

CITY OF COSTA MESA, and

DOES I through X, Inclusive,

Defendants, )

CIVIL CASE NO.

CV 87-1125 MRP (TX)

COMPLAINT FOR

DEPRIVATION OF

CIVIL RIGHTS,

DENIAL OF EQUAL

PROTECTION OF

THE LAW,

DEPRIVATION OF

PROPERTY WITHOUT

DUE PROCESS OF

LAW (CIVIL RIGHTS)

(Filed Feb. 20, 1987)

Plaintiff, GARY L. MOORE (“MOORE”) alleges as

follows:

1. This action arises under the Civil Rights Act of

1871, 42 U.S.C. Section 1983 as hereinafter more fully

appears. This Court has jurisdiction over this matter un-

der 42 U.S.C. Section 1983 and 1988 and 28 U.S.C. Sec-

tions 1331 and 1343.

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2. This is a Civil Action in which Plaintiff, GARY L.

MOORE, seeks damages against Defendants CITY OF

COSTA MESA, and CITY COUNCIL OF THE CITY OF

COSTA MESA (hereinafter collectively referred to as

“CITY”) for deprivations of MOORE’s rights, privileges

and immunities under the First, Fifth and Fourteenth

Amendments of the United States Constitution.

3. At all times relevant herein, MOORE was, and

now is, a citizen of the United States and a resident of the

County of Orange, California.

4. At all times mentioned herein, Defendant CITY

was, and now is, a municipal corporation organized and

existing under the laws of the State of California.

5. MOORE owns certain real property located in the

City of Costa Mesa, with a common street address of 221

and 225 West Wilson Street, Costa Mesa, California, and

identified as Assessor Parcel Numbers AP 419-012-25 and

419-012-26 (hereinafter collectively “Subject Property”).

6. The CITY COUNCIL of the CITY OF COSTA

MESA at all times mentioned herein has been and now is

a legislative body of the CITY OF COSTA MESA, and at

all times mentioned herein has been, and now is, charged

under the provisions of the Municipal Code of the CITY

OF COSTA MESA as the body to hear appeals and make

final administrative decisions and determinations in re-

gard to applications for conditional use permits and in-

terpretation of the provisions of the planning, zoning and

development provisions of the Municipal Code of the

City of Costa Mesa.

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7. On or about February 21, 1984, the CITY COUN-

CIL OF THE CITY OF COSTA MESA considered the

appeal of MOORE in regard to an application for a condi-

tional use permit to improve the Subject Property. On or

about February 24, 1984, the City Clerk of the CITY

mailed to MOORE a notice of the decision of the CITY

COUNCIL of the CITY in regard to MOORE’s application.

as ee ey eee ee

8. The decision of the CITY COUNCIL of the CITY

was invalid as to MOORE, and the CITY COUNCIL

abused its discretion and denied MOORE his rights, priv-

ileges and immunities secured by the First, Fifth and

Fourteenth Amendments of the United States Constitu-

tion to own, use and develop property free from unrea-

sonable restrictions or conditions as to the use or

development of the subject property. The conditions im-

posed by the CITY COUNCIL of the CITY for develop-

ment of the subject property included the requirement, as

a pre-condition for development, for an unlawful dedica-

| tion of more than ten percent (10%) of the land area of the

Subject Property and MOORE, furthermore, was required

: to re-design his project and the layout of the structures to

be improved on the Subject Property to comply with

additional requirements of the CITY. The CITY COUNCIL

of the CITY, furthermore, unreasonably and unlawfully

restricted the uses of the Subject Property beyond that

which is lawful and otherwise damaged MOORE’s inter-

est in and right to the reasonable use and development of

the Subject Property.

9. On May 21, 1984, MOORE filed a petition for Writ

of Mandamus and Complaint for Declaratory Relief and

Damages in the Superior Court of the State of California,

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in and for the County of Orange, denominated as Case

No. 42 99 35.

10. The Honorable Judith M. Ryan, Judge of the

Superior Court of the State of California for the County of

Orange, ordered that a Writ of Mandamus issue and a

Writ issued in this case on or about November 15, 1984.

The terms of the Writ are contained in a true and correct

copy of the Peremptory Writ of Mandamus which is

attached hereto, marked Exhibit “A” and incorporated

herein by this reference.

11. Thereafter, CITY appealed the decision of the

trial court to the Court of Appeal of the State of Califor-

nia, which affirmed the decision of the trial court by an

opinion filed March 24, 1986. A true and correct copy of

said opinion is attached hereto, marked Exhibit “B” and

incorporated herein by this reference.

i2. Thereafter, CITY petitioned the Court of Appeal

for rehearing, which was denied April 11, 1986.

13. Thereafter, CITY petitioned the California Su-

preme Court for review, which petition was denied

July 20, 1986. A true and correct copy of the denial of the

petition for review by the California Supreme Court is

attached hereto, marked Exhibit “C” and incorporated

herein by this reference.

14. MOORE is informed and believes and thereon

alleges that the law of the State of California is such that

it will not permit MOORE to recover interim damages for

the loss of use and the ability to reasonably develop the

Subject Property between the date of the unreasonable

restriction and the date the restriction is ended, under the

Neel

C-5

laws of the State of California and the United States in

that the decision by the California Supreme Court in

Agins v. Tiburon (1979), 24 Cal. 3d 266; 157 Cal. Rptr. 372,

limits the ability of MOORE in State Court to an action in

mandamus and for recovery of costs only and MOORE

may not recover damages or attorneys fees, and the only

remedy available to MOORE is a federal action.

15. The conduct of the CITY constituted a judicially

determined overregulation of the use of the Subject prop-

erty in violation of the First, Fifth and Fourteenth

Amendments of the United States Constitution. This con-

duct was established by the trial court and affirmed by

the Court of Appeal of the State of California.

16. As a direct, consequential and proximate result

of the conduct of the CITY, MOORE has suffered damages

in the inability to use his property for the period of time

between the first imposition of the restriction in the case

of the Subject Property and the date the restriction is

ended, during which period of time the cost of develop-

ment and construction of the improvements contem-

plated by MOORE has increased substantially in value

and MOORE has suffered additional losses due to lack of

ability to use the Subject Property during said period.

17. As a result of said conduct, MOORE has been

damaged in an amount in excess of $25,000.00, and will

be established according to proof. Said conduct of the

CITY constituted taking of property of MOORE without

due process of law in violation of the First, Fifth, and

Fourteenth Amendments of the United States Constitu-

tion.

sn eneeenner eens

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18. As a result of said conduct, MOORE has been

damaged in an amount in excess of $25,000.00, and will

be established according to proof. Said conduct of the

CITY constituted “denial of equai protection of the law”

for “due process” in violation of the First, Fifth, and

Fourteenth Amendments of the United States Constitu-

tion.

19. MOORE has been required to retain an attorney

to protect his interests and MOORE is entitled to recovery

of attorneys fees under 42 U.S.C. Section 1988.

WHEREFORE, MOORE respectfully requests the fol-

lowing relief:

1. For compensatory damages in an amount of in

excess of $25,000.00, according to proof;

2. For attorneys fees pursuant to 42 U.S.C. Section

1988;

3. That MOORE recover his costs of suit incurred

herein;

4. And for such other and further relief as the Court

deems just and proper.

Dated: February 20, 1987.

PIZER & MICHAELSON INC.

By /s/ Hugh R. Coffin

HUGH R. COFFIN

Attorneys for Plaintiff

D-1

APPENDIX D

Law Offices

MADORY, BOOTH, ZELL AND PLEISS

A Professional Corporation

Mailing Address

Post Office Box 11120

Santa Ana, California 92711

Suite 205 The Centre Building

17022 East 17th Street

Tustin, California 92680

(714) 932-3772 (213) 626-3787

Attorneys for defendant CITY OF COSTA MESA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE

GARY L. MOORE, CASE NO.

Plaintiff, 42°99 39

vs. NOTICE

CITY OF COSTA MESA, et al., OF RULING

Defendants. DATE:

September 7, 1988

TIME: 9:30 A.M.

DEPT: 25

TRIAL:

None Pending

ee ee

TO ALL PARTIES HEREIN AND TO THEIR RESPEC-

TIVE ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on September 7, 1988,

the motion of defendant, CITY OF COSTA MESA, to

abate the State court proceedings in Orange County Su-

perior Court, Case No. 42 99 35, came on regularly for

hearing in Department 25 of the above-entitled court

D-2

before the Honorable William F. McDonald, Judge, pre-

siding. Mark A. Birmingham of Madory, Booth, Zell and

Pleiss appeared on behalf of defendant and moving party,

CITY OF COSTA MESA.

After due consideration of the matter, the Court

granted said motion and thereby ordered that all State

court proceedings in the above-captioned action, Orange

County Superior Court Case No. 42 99 35, are forthwith

abated and stayed pending final resolution of the Appeal

presently pending in the United States Court of Appeal

Ninth Circuit, Appeal No. 87-6432, entitled Gary Moore v.

City of Costa Mesa.

DATED: September 8, 1988

MADORY, BOOTH, ZELL and

PLEISS

A Professional Corporation

By LARRY T. PLEISS

LARRY T. PLETSS

Attorneys for Defendant

CITY OF COSTA MESA

E-1

APPENDIX E

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CITY OF COSTA MESA,

Defendant and Appellant.

GARY L. MOORE, ) G002071

Plaintiff and Respondent. Ray ee

i } OPINION

)

APPEAL from a judgment of the Superior Court of

Orange County. Judith M. Ryan, Judge. Affirmed.

Thomas C. Wood, City Attorney, and Eleanor M. Frey,

Assistant City Attorney, for Defendant and Appellant.

Pizer & Michaelson, Inc., and Hugh R. Coffin for

Plaintiff and Respondent.

May a city require a landowner to dedicate a portion

of his land for street widening as a condition of granting

a conditional use permit? Yes, but only if substantial

evidence exists showing a reasonable relationship be-

tween the landowner’s proposed use and the dedication

requirement. |

Moore owns two adjoining lost, containing 12,862

square feet with a 107 foot frontage, on Wilson Street in

the City of Costa Mesa (“the City”). Wilson Street

is currently 40 feet wide curb-to-curb in 60 foot

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right-of-way. The City’s Master Plan of Highways shows

that Wilson Street will eventually be widened to a 70 foot

street in an 84 foot right-of-way.

On streets where the Master Plan requires additional

property for street widening. Costa Mesa Municipal Code

Section 13-316 requires land dedication for street widen-

ing as a condition to granting a building permit over

$2,000.! In applying section 13-316, the City’s Planning

District analyzes the proposed development to determine

the vehicle traffic it will generate. If the proposed devel-

opment increases traffic flow, the dedication requirement

is imposed. If not, the requirement is waived, or the

developer may seek a variance.

Moore’s lots are zoned C1. local business district.

Commercial properties abut Wilson Street on both sides.

A medium density condominium complex is behind the

lots. At present, two older houses are on the lots; Moore

lives in one and uses the other as an office and storage

facility for his carpet installation business, under a condi-

tional use permit (“CUP”). (Carpet contracting is not a

permitted use under Cl zoning, but maybe allowed un-

der a conditional use permit.)

In late 1983, Moore requested zoning variances for a

permit to build a 6.621 square-foot building on the two

lots: a 3,528 square foot warehouse with 3,028 of office

space on a second floor. He also requested a new CUP to

allow his business to occupy the proposed building. In

' At the trial level, Moore challenged the constitutionality

of section 13-316. The court found the section to be constitu-

tional on its face. Moore did not appeal this decision and we

do not address it here.

0 ee eee

E-3

analyzing Moore’s variances requests, the Planning Dis-

trict used the City’s General Plan Traffic Study to deter-

mine the anticipated traffic load which a typical 6,621

square foot Cl building would generate. The Staff esti-

mated that Moore’s building would generate 230 “trip-

ends” (vehicle arrivals or departures). 191 more trip-ends

than the estimate for the current structures. The Staff

recommended denying Moore’s requested variance from

the dedication requirement since Moore’s development

would create an estimated 600% increase in traffic at the

site.

After holding public hearings in January 1984, the

City’s Planning Commission granted Moore’s building

permit and CUP, but denied the variance from the dedica-

tion provision which required Moore to dedicate the

12 foot Wilson Street frontage to complete the 84 foot

right-of-way. The dedication area, 1,308 square feet, is

10.17% of the lots’ total area.

Moore appealed from the Commission’s decision to

the Costa Mesa City Council. The Council held a public

hearing in February 1984 and granted the permits subject

to the same conditions.

Moore petitioned the superior court for an adminis-

trative writ of mandamus, challenging the dedication re-

quirement’s validity. (Code Civ. Proc., § 1094.5) The court

granted the writ, finding the evidence in the record insuf-

ficient to establish a reasonable relationship between the

dedication requirement and Moore’s proposed develop-

ment. The City now appeals.

This appeal’s primary issue is the sufficiency of the

evidence on the dedication’s reasonableness. It is now

E-4

well-established that a governmental body may require

dedication as a condition for property development as

long as the dedication is reasonably related to the re-

quested use. (Associated Home Builders, etc., Inc. v. City of

Walnut Creek (1971) 4 Cal.3d 633, 639 et seq.; Ayres v. City

Council of City of Los Angeles (1949) 34 Cal.2d 31, 41-42;

Remmenga v. California Coastal Com. (1985) 163 Cal.App.3d

623, 627-628; Gov. Code, § 65909.) The question before us

is threefold: (1) whether substantial evidence supported

the City’s finding that Moore’s project would increase

traffic; (2) whether the dedication is reasonably related to

the traffic increase; and (3) who decides (1) and (2). We

will consider these questions in reverse order.

The City has the statutory authority to control land

use planning. (Gov. Code, §§ 65000 et seq.; Bownds v. City

of Glendale (1980) 113 Cal.App.3d 875, 880-881.) When an

administrative decision does not involve any fundamen-

tal vested right, the trial court should only review the

administrative record to determine whether the findings

are supported by substantial evidence. (Bixby v. Pierno

(1971) 4 Cal.3d 130, 144.) The Planning Commission’s

dedication requirement does not involve any fundamen-

tal vested right. Acquisition of a vested right to construct

a building requires (1) a building permit, and (2) substan-

tial expenditures in reliance on the permit. (Santa Monica

Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858, 864.)

Moore has no inherent vested right to a use permit;

development of land is a privilege, not a right. (See

Sommers v. City of Los Angeles (1967) 254 Cal.App.2d 605,

620.)

Therefore, the trial court’s review was limited to

examining the administrative record to insure that the

E-5

City’s decisions were supported by substantial evidence.

On appeal, our review is identical. (Bixby v. Pierno, supra,

4 Cal.3d at p. 149.) We may not weigh the evidence in the

administrative record (Hingsbergen v. State Personnel Board

(1966) 240 Cal.App.2d 914, 916-917), and we must indulge

all reasonable inferences supporting the City’s decision.

(Sommers v. City of Los Angeles, supra, 254 Cal.App.2d

at p. 610.) It is Moore’s burden to show that the City

abused its discretion, that is, that the evidence is insuffi-

cient to support the City’s decision. (Bringle v. Board of

Supervisors (1960) 54 Cal. 2d 86, 89.)

Moore failed to show the evidence insufficient to

support the City’s finding regarding the projected traffic

increase. The main evidence before the City and trial

court was the Planning District projection that Moore’s

development would generate 191 additional trip-ends.

This projection was based upon a traffic study prepared

for the City by independent professional urban planners.

Moore presented no evidence that the study was unreli-

able or incorrect. He merely asserted that it did not

accurately predict his specific business’ traffic potential.

The relevant concern, however, is the building’s potential

for traffic generation, not Moore’s potential for traffic gener-

ation as its tenant. For planning to be at all effective, the

City must consider the reasonably anticipated future de-

mands which a project will place upon the traffic system.

(See Ayres v. City Council of Los Angeles (1949) 34 Cal.2d

31, 41.)

Nevertheless, the trial court did not err in finding no

reasonable relationship between the projected traffic in-

crease and the dedication. A dedication is reasonable if it

will help fulfill public needs emanating directly from the

hiatal

E-6

proposed use. (Ayres v. City Council of Los Angeles, supra,

34 Cal.2d at p. 42; Scrutton v. County of Sacramento (1969)

275 Cal.App.2d 412, 421-422.) We fail to see any direct,

reasonable relationship between an increase of 191 trip-

ends (95.5 cars) per day and a public need for street

widening. Even indulging all reasonable inferences in the

City’s favor, this small traffic increase does not, by itself,

justify the dedication. We recognize that a developer may

be required to contribute to the cost of an eventual public

need by forced dedication even if the individual develop-

ment alone does not create the need, but the projected

need and the dedication must be reasonably related to the

proposed development. (Associated Home Builders, etc.,

Inc. v. City of Walnut Creek, supra, 4 Cal.3d at pp. 637-640;

Remmenga v. California Coastal Commission, supra,

163 Cal.App.3d 623, 628-630.) A city may consider the

incremental effect of a single project in evaluating that

project’s impact on the entire traffic system. Nevertheless,

the single project must contribute to the public need in a

way which makes the actual dedication reasonable. Oth-

erwise, any incremental increase im traffic from a pro-

posed development, however small, could trigger a

forced dedication for street widening. “An arbitrarily

conceived exaction will be nullified as a disguised at-

tempt to take private property for public use without

resort to eminent domain... . [Citations.]” (Scruiton v.

County of Sacramento, supra, 275 Cal.App.2d at p. 421.) We

agree with Moore and the trial court that the projected

increase of 191 trip-ends, while theoretically related to

the eventual need for street widening, was not reasonably

related to the forced dedication in this case.

The judgment and writ of mandamus are affirmed.

FOES

Sek te

'E-7

NOT TO BE PUBLISHED

Trotter/s/

I concur:

Sonenshine/s/

SONENSHINE, J.

Crosby, J., dissenting.

I dissent. Although this project would not create an

immediate need to widen Wilson Street, it was lawful for

the city to consider the cumulative impact of future de-

velopment to exact the dedication of the easement in

exchange for the conditional use permit. (Ayres v. City

Council of Los Angeles (1949) 34 Cal.2d 31; Associated

Homebuilders, etc., Inc. v. Walnut Creek (1971) 4 Cal.3d 633.)

The burden on the land represented by the easement

would be very slight until the future development occurs

and the land is actually utilized: The city is willing to

allow it to be used for parking or landscaping in the

meantime. When the street is improved, respondent’s

property will share in that benefit.

95 additional car trips a day do not seem many; but if

only four new businesses on respondent’s side of street

and five more on the other were to generate similar

numbers, the city would be faced with a thousand more

trips a day from this one block. Multiplied by perhaps

dozens of similar blocks, the congestion might approach

the gridlock conditions now common on many local

streets. After the fact the city will find it difficult or

impossible to improve the street in this post-Proposition

13 era; for then it may be widened only by condemning a

E-8

great deal of improved property, possibly including some

of the new buildings themselves.

The majority’s holding is clearly against the trend of

current case law. (See, e.g., Paoli v. California Coastal Com.

(Feb. 21, 1986, A028421) __ Cal.App.3d __; Nollan v.

California Coastal Com. (Feb. 18, 1986, B004663) ___ Cal.

App. 3d __; Grupe v. California Coastal Com. (1985) 166

Cal.App.3d 148; Remmenga v. California Coastal Com.

(1985) 163 Cal.App.3d 623.) It will also, if applied in other

cases, seriously hamper Costa Mesa’s efforts to plan for

the future of all its citizens, including respondent whose

property must someday lose much of its value when it

looks out upon a parking lot anachronistically named

“Wilson Street.”

I would reverse.

Crosby, J.

F-1

APPENDIX F

PIZER & MICHAELSON INC.

Attorneys at Law

2122 North Broadway, Suite 100

Santa Ana, California 92706

(714) 558-0635

Attorneys for Plaintiff and Petitioner Gary L. Moore

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE

GARY L. MOORE, ) CASE NO.

Plaintiff & Petitioner, 42 99 35

as ) JUDGMENT

) ON PETITION

THE CITY O TA "

bp! F COS MESA, etc ) FOR WRIT OF

) MANDAMUS

Defendants & Respondents. )

) (Filed

)

Nov 13, 1984)

This cause came on regularly for hearing on Notice of

Petitioner’s Application for Writ of Mandamus on Au-

gust 28, 1984 at 9:30 a.m. in Department 22 of the above-

entitled court, the Honorable Judith M. Ryan, Judge Pre-

siding, sitting without a jury. Petitioner appeared by his

attorney, Hugh R. Coffin of Pizer & Michaelson Inc. Re-

spondents appeared by their attorney, Eleanor M. Weaver,

Assistant City Attorney of the City of Costa Mesa. The

Court received the entire Administrative Record in this

cause, heard argument of counsel and the matter having

been submitted for decision,

1 neem eisai

F-2

IT IS ORDERED, ADJUDGED AND DECREED as

follows:

1. There is insufficient evidence in the Record to

support the imposition of Condition No. 11 (the condition

which requires dedication of additional right of way for

the widening of West Wilson Street) as a condition to

approval of Petitioner’s Application, designated as

ZE-83-169;

2. Specifically, the Court finds that there is insuffi-

cient evidence as to the “relationship between the exac-

tion and the proposed use.” Ayres v. City Council of Los

Angeles (1949) 34 Cal.2d 31, 207 P.2d 1;

3. A Peremptory Writ of Mandate shall be issued

and directed to Respondent, City of Costa Mesa, and the

City Council of the City of Costa Mesa commanding

Respondents, and each of them, immediately after receipt

of the Writ to set aside the decision made by Respondent,

City Council, on February 21, 1984 insofar as it imposes

condition No. 11 of approval requiring Petitioner to dedi-

cate all land 42’ south of the center line of West Wilson

Street to the City of Cost Mesa;

4. The Writ shall further command Respondents to

reconsider the matter in light of this Judgment and the

findings contained herein;

5. The Court does not find that the Costa Mesa

Municipal Code, Article 22, Section 13-316 Street Dedica-

tions is unconstitutional on its face;

6. Petitioner shall have and recover from Respon-

dent the sum of $1,500.00 as and for attorney’s fees

pursuant to §800 of the California Government Code;

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7. Petitioner’s request for attorney’s fees pursuant

to California Code of Civil Procedure §1021.5 is denied;

8. Petitioner shall have and recover from Respon-

dent Petitioner’s costs and disbursements in this proceed-

ing for preparation of the Administrative Record, filing

fees and related court costs in the sum of $469.15.

All other issues reserved for trial.

Dated: Nov 6 1984

/s/ Judith M. Ryan

JUDGE OF THE

SUPERIOR COURT

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