Opposition Brief — Moore v. City of Costa Mesa

—_——— a

Suprems Gout, Use

No. 89-1578 MAY 9 19% ;

In The Pp set aieal

Supreme Court of the United tates

October Term, 1989 ;

.

GARY MOORI 4

CITY OF COSTA MESA, a municiy .

corporation, and THE CITY COUNCII ‘@

OF THE CITY OF COSTA MESA 7

On Petition For Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

7

BRIEF IN OPPOSITION

+

Mapory, Boot, Z1 ND |

A Professional Corporation

LARRY [. Pieris

17822 East 17th Street

Suite 205

) )

lustin, California 9268

(714) 832-3772

Se

i

BEST AVAILAE

QUESTIONS PRESENTED

Although Petitioner sets forth a trilogy of questions,

in reality only one is presented by the Petition. That

pertains to whether the Court of Appeals, in affirming the

District Court’s holding that no compensable taking with-

in the ambit of the Fifth and Fourteenth Amendments

occurred, has decided an important federal question

which has not been, but should be settled by the court.

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTE? <.055 ssi viensverek hove ves i

TABLE OF AUTHOREEIES Semis css esses sep esee, ill

INTRODUCTION |... «ss caseue tapes ee seen en eae eee l

OPINIONS BELOW. . isa) <aeceeeeruear ene ener. |

JURISDICTION |... ....c5455500eeeaeen Sere ress 2

CONSTITUTIONAL PROVISIONS, STATUTES AND

CODES INVOLV&Es....-7.0saawas eeeaaa en eer eee es 2

STATEMENT OF FRE Gee. ss ees endevessaeeessy. 2

A. FACTUAL BACKGsUALINE? (ven ccresnccsnsess 2

B. PROCSEDINESS IRRree ose ucns dsecserevers cs 5

REASONS FOR DENYING WRIT .....5-.2..2++0s-: 7

THE REGULATION HEREIN DOES NOT CONSTI-

TUTE A COMPENSABLE TAKING .............. 9

CONCLUSION . ...oo:s-c ce eer en 17

iii

TABLE OF AUTHORITIES CITED

Page

Cases

United States Supreme Court:

Agins v. City of Tiburon, 447 U.S. 255 (1980)...... 13, 16

Andrus v. Allard, 444 U.S. 51 (1979) .............. 11, 12

Armstrong v. United States, 364 U.S. 40 (1960)........ 11

Chicago, B. & Q.R.R. Co. v. Chicago, 166 U.S. 226

og Sa PER KePS ne qe re baverviwer acces scence. 6

Connolly v. Pension Penefit Guar. Corp., 475 U.S. 211

IGE ice: 2S eR ee eae oe 9, 11

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987) 7, 8, 14, 15, 16, 17

Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) .10, 11

Hadacheck v. City of Los Angeles, 239 U.S. 394 (1915) .... 15

Hodel v. Irving, 461 U.S. 704 (1987)... 2.26. c cece eee: 8

Kaiser Aetna v. United States, 444 U.S. 164 (1979). ..9, 10

Keystone Bituminous Coal Association v. DeBenedic-

ee, See Wh S70 CIS) «we cece cen vee 7, 8, 9, 16, 17

Loretto v. Teleprompter Manhattan CATV Corp., 458

a ces cc ebe ses eth ches nccueeneveves 9, 10

McDonald, Sommer and Frates v. Yolo County, 477

SRR 2) eee Ae Tv y PETS TT Tey eT 14

Mugler v. Kansas, 123 U.S. 623 (1887)................ 15

Nollan v. California Coastal Comm’n, 483 U.S. 825

ETS a A ge a ee ee 8, 10

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

| Ee s, 9, 30,11, 12

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

iv

TABLE OF AUTHORITIES CITED —- Continued

Page

Prune Yard Shopping Center v. Robbins, 447 U.S. 74

| IS eee EE eee OTT LER ETE aT. ce

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)...9, 11

Thorpe v. Housing Authority of City of Durham, 393

coe Ai. Peer Peer errr ere eer ene 8

Ulniied States ex rel. TVA v. Powelson, 319 U.S. 266

(1949)

CTRPORRSOHED UES NRO WARHEDS TTR ON OROOO ODES E SHOES 6

Other Federal Cases:

Maher v. City of New Orleans, 516 F.2d 1051 (Sth

Cir. 1975), cert. denied, 426 U.S. 905 (1966) ........ 16

Moore v. City of Costa Mesa, 678 F.Supp. 1448 (C.D.

a ER a ou re eae aes Heke a Ree eee ees eae

Moore v. City of Costa Mesa, 886 F.2d 260 (9th Cir.

So SET ee Cee ee ree ee Pre erg ye eeu nen

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

toe ke ee | ee eer reer er vee 15

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

| See ee ee eer eT reer TT ree ee ee 16

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

Ra WEE CeteeVeween cs cabs sesscuhe vebexueneens 15, 16

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

SRR NEES Soccer tcc dacuerans ometitnan as 15, 16

Wheeler v. City of Pleasant Grove, 833 F.2d 267 (11th

Sy BES evi cae s seks dee eeesbcereneerny tenes 15, 16

CONSTITUTION

U.S. Const. Amend. 1.... . . 2

TABLE OF AUTHORITIES CITED - Continued

Page

Us. Comat. Amel WV. occccccankcnceorere ee 2

U.S. Comsl. Aged: TAY oo << soxscndcckoee eee 2

STATUTES AND Copes

46 USAW. § IGG) os ce cee 2

2 USA. OB: Ge ee eee <o4a4aseee eee 2

Costa Mesa Muni. Code, § 13-316 .................... 2

Rut

Fed. R. Civ. Proc., Rule 12(b)(6) 1; me be

rea. R. Cio. Pome, Bo oe eee 6

INTRODUCTION

Respondents, CITY OF COSTA MESA, a municipal

corporation, and the CITY COUNCIL OF THE CITY OF

COSTA MESA, hereby submit their Brief in opposition to

the Petition for a Writ of Certiorari to review judgment of

the Court of Appeals for the Ninth Circuit in this case. By

this Petition, the court is invited to scrutinize and then

overturn the reasoned exercise of discretion by the Ninth

Circuit Court of Appeals and the underlying District

Court in dismissing petitioner’s Complaint for failure to

state a claim against respondents, upon which relief can

be granted within the ambit of Federal Rules of Civil Pro-

cedure, Rule 12(b)(6). A considered review of the record

below, and the applicable statutory and decisional au-

thority plainly demonstrates the wisdom and propriety of

the lower courts opinions. In addition thereto, as is more

fully set forth hereinbelow, several compelling reasons

exist for the court not to exercise its discretion and,

therefore, deny the Petition herein.

-

» il

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 FSupp. 1448 (C.D.

Cal. 1987), and is reproduced as App. B. The unpublished

opinion of the California Court of Appeals for the Fourth

Appellate District, Division 3, in the preceding State

Court action is reproduced as App. C. The judgment of

(

N

the Orange County Superior Court in the preceding State

Court action is reproduced as App. D.

a

.

JURISDICTION

Respondents do not question the jurisdiction of this

court under 28 U.S.C. § 1254(1) as set forth in the Petition.

,’

vv

CONSTITUTIONAL PROVISIONS, STATUTES

AND CODES INVOLVED

The text of the following constitutional provisions,

statutes, and codes relevant to the determination of the

Petition are set forth as App. E and are: U.S. Const.

Amend. I; U.S. Const. Amend. V; U.S. Const. Amend. XIV;

Civil Rights Act of 1871, 42 U.S.C. § 1983; and Costa Mesa

Munt. Code, § 13-316.

—~ —---—- - — - —————

STATEMENT OF THE CASE

A. Factual Background

Petitioner owns two adjoinir g lots, containing 12,862

square feet with a 107 foot frontage on Wilson Street,

Costa Mesa, California [App. C-1]. The aforesaid street is

40 feet wide, curb to curb, with a 60 foot right-of-way

(id.J; [App. C-2]. The City’s Master Plan of Highways

shows that Wilson Street will eventually be widened to a

70 foot street and an 84 foot right-of-way [/d].

While the streets where the Master Plan requires

additional property for street widening, the City’s Munic-

ipal Code! requires a land dedication for street widening

as a condition to granting a Building Permit over

$2,000.00. In applying the Code, the City’s Planning Dis-

trict analyzes the proposed development to determine the

vehicle traffic it will generate. If the proposed develop-

ment increases traffic flow, the dedication requirement is

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

oper may seek a variance [App. C-2].

Petitioner’s lots are zoned C-1, Local Business. Com-

mercial properties abut Wilson Street on both sides. A

medium density condominium complex is behind the

lots. At present and at all times pertinent, two older

houses are on the lots; petitioner used to live in one and

use the other as an office and storage facility for his

carpet installation business, under a Conditional Use Per-

mit [/d.].2

' Costa Mesa Municipal Code, Section 13-316 [See App.

E-1].

2 In late 1983, petitioner 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 [App. C-2]. He also requested a new Conditional

Use Permit to allow his business to occupy the proposed

buildings [/d.]. In analyzing petitioner’s variance request, the

Planning District used the City’s General Plan Traffic Study to

determine the anticipated traffic load which a typical 6,621

square foot C-1 building would generate. The staff estimated

that petitioner’s building would generate 230 “trip ends” (ve-

hicle arrivals or departures), 191 more trip ends than the

estimate for the current structures. The staff recommended

denying petitioner’s requested variance from the dedication

requirement since petitioner’s development would create an

estimated 600% increase in traffic at the site [App. C-3].

a —_— —— =

After holding public hearings in January, 1984, the

City’s Building Commission granted petitioner’s Building

Permit and Conditional Use Permit, but denied the vari-

ance from the dedication provision which required peti-

tioner to dedicate the 12 foot Wilson Street frontage to

complete the 84 foot right-of-way [App. C-2]. The dedica-

tion area, 1,308 square feet is 10.17% of the lots total

area.3

In March, 1984, petitioner filed an action in Superior

Court of the State of California in and for the County of

> Petitioner appealed the Commission’s decision to the

City [App. C-3]. A public hearing was held in February, 1984

by the City Council and granted the permits subject to the

same conditions [/d.]. In essence, petitioner was compelled by

the exaction to give up the usage of a couple of parking spaces

so as to allow for the placement and construction of public

sidewalk. In California, as in other states, local governments

rely extensively upon dedications and exactions as a means of

placing some of the costs of new or intensified development on

permittees and developers. For about forty-seven years this

has been so. At first, California law permitted mandatory

dedications and exactions only for streets, alleys, drainage, and

public utility easements necessitated by development [See Cal.

Gov't Code, § 66475, first enacted in 1943, as Cal. Bus. & Prof.

Code, § 11535]. In later years, laws in California were enacted

granting authority to condition subdivision approval upon

either dedication of land or provision of in-lieu fees for other

infrastructure elements required for new subdivisions. Local

governments, like respondents, were given authority, inter alia,

to require payment of fees to defray the cost of drainage and

sanitary sewer facilities [Cal. Gov't Code, § 66483] and to defray

the cost of constructing bridges and “major thorcughfares”,

Cal. Gov't Code, § 66484. The reason why such laws are favored

is because of the manifest public benefit which inures from

their application.

Orange requesting (1) mandamus to set aside the condi-

tion, (2) declaratory relief that the condition was invalid,

(3) damages for inverse condemnation, and (4) general

damages and attorneys’ fees [App. F-3, C-3]. The state

Supericr Court, which reviews zoning decisions on a

“substantial evidence” standard, granted petitioner’s

mandamus and declaratory relief action [App. F-4, C-3}.

It was held that respondent’s proposed condition was not

reasonably related to the relatively small projected in-

crease in traffic from the new building [/d.]. Respondent

pursued an appeal in the California Court of Appeals for

the Fourth District, Division 3, and in an unpublished

decision, the Court of Appeals affirmed the Superior

Court Ruling on a 2-1 vote, with the dissenting Justice

voting to uphold the respondent’s condition [App. F-4;

C-1/8]. The California Supreme Court denied review,

with Justice Reynoso dissenting [App. B-3, F-4].

B. Proceedings Below

On February 20, 1987, petitioner filed suit in United

States District Court for the Central District of California.

Subsequently on May 20, 1987, respondent moved to

dismiss petitioner’s entire action under Federal Rules of

Civil Procedure, Rule 12(b)(6) [App. B-3]. Petitioner’s op-

position was filed on June 8, 1987 with a supplemental

response also filed on June 14, 1987. Respondent’s reply

was filed on June 17, 1987. The Motion to Dismiss was

heard by the District Court on June 22, 1987 [Id.]. The

District Court entered judgment dismissing petitioner’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 upon which relief could be granted. Peti-

tioner timely filed a Motion for a new trial on July 16,

1987 [App. B-4]. Fed. R. Civ. Proc., R. 59. Opposition to the

Motion for a new trial was filed by respondent on July 22,

1987. Oral argument was heard on August 10, 1987 and

the District Court entered its Amended Memorandum of

Decision on August 22, 1987 [App. B-11]. Petitioner filed

a timely appeal of the District Court’s decision on Sep-

tember 25, 1987.

Petitioner filed his Opening Brief on March 7, 1988.

Respondents filed their Responsive Brief on April 1, 1988.

Petitioner responded with a Reply Brief which was filed

on May 9, 1988. Oral argument was then heard on August

3, 1988.

On September 26, 1989, the Ninth Circuit Court of

Appeals published its Opinion—affirming the District

Court’s ruling that no compensable taking occurred un-

der the circumstances involved.® Petitioner then

4 Respondents have conceded that res judicata does not

apply to the facts of this case [App. A-4 n.2].

> Petitioner’s pleadings alleged manifold theories of relief

including abridgement of First Amendment rights and privi-

leges but the only theory pursued in the lower courts is under

the Fifth and Fourteenth Amendments. More specifically, the

gravamen of petitioner’s claims arise under the “taking” clause

of the Fifth Amendment wherein it declares that property shall

not “be taken for public use without just compensation.” The ‘

“taking” clause applies to the States through the Fourteenth

Amendment. See United States ex rel. TVA v. Powelson, 319 U.S. ;

266, 279 (1949); Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226,

235-41 (1897). .

.

Z

el

petitioned the Ninth Circuit Court of Appeals for rehear-

ing with a suggestion for a rehearing En Banc. Respon-

dents filed an Answer to the aforesaid Petition and on

January 9, 1990, the Ninth Circuit Court of Appeals de-

nied same [App. G-1].

Petitioner then petitioned this court for a Writ of

Certiorari to the Ninth Circuit Court of Appeals.

a

vr

REASONS FOR DENYING WRIT

The principal reasons why this court should not

grant certiorari in this case are that:

(1) While petitioner poses a trilogy of interesting

abstract questions for the court to answer, those questions

have already been answered by this court in Keystone

Bituminous Coal Association v. DeBenedictis, 480 U.S. 470

(1987) [Keystone] and First English Evangelical Lutheran

Church v County of Los Angeles, 482 U.S. 304 (1987) [First

English] and, therefore, need not be addressed again in

this case; and

(2) The claimed conflicts between the decisions of the

Ninth Circuit and other circuits, simply are not apprecia-

ble.

This case, therefore, does not meet any of the “special

and important reasons” set forth in Supreme Court Rule

17 for granting certiorari.

What Petitioner has requested of the court is to issue

an advisory opinion on the parameters of taking claims.

To comply with contravene the constitutional and policy

prohibitions on the issuance of advisory opinions,® as

well as the important policy laid down by this court

through decades of experience, that the decision of

whether a regulation constitutes a taking it over can be

made after a careful analysis of the facts of each case. See

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

104, 124 (1978) [Penn Central]. That policy is of particular

importance here, where the sole grounds of attack in the

federal courts rest on the economic viability of remaining

uses”? an inquiry unique to the facts of each case.

The spring board for all questions presented by peti-

ner is the misguided belief that the courts takings

analysis is in need of clarification. It is not. During the

courts’ 1987 Term® the takings analysis put forth initially

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

[Mahon] by Justice Holmes was adapted and reaffirmed.

By accommodating the Mahon analysis, the court pro-

vided the requisite guidance for lower courts conducting

6 As the Court stated in Thorpe v. Housing Authority of City

of Durham, 393 U.S. 268 (1969): “We do not sit, however, to

decide abstract, hypothetical or contingent questions . . . or to

decide any constitutional question in advance of the necessity

for its decision” Id. at 284.

7 At no time has petitioner been deprived of substantially

all reasonable economic use of his property. Petitioner was

allowed to construct his proposed buildings as originally de-

signed [See App. H-1] and to use the entire lot, including the

area designated for eventual street widening. He instead chose

not to, and to this day has not done so. In fact respondents are

informed and believe petitioner no longer resides or conducts

business in California.

8 During the 1987 Term the court decided Keystone; Hodel

v. Irving, 481 U.S. 704 (1987); First English; and Nollan v. Califor

nia Coastal Comm'n, 483 U.S. 825 (1987) [Nollan].

taking analysis. What is needed now is further develop-

ment by the lower courts of this court’s analysis not

reassessment of same again.

THE REGULATION HEREIN DOES NOT

CONSTITUTE A COMPENSABLE TAKING

Probably the only general accepted maxim of modern

takings analysis is that it is an ad hoc, fact oriented

inquiry. Keystone, 480 U.S. at 495, citing Kaiser Aetna v.

United States, 444 U.S. 164, 175 (1979) [Kaiser Aetna]: Loret-

to v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 432

(1982) [Loretto]. In Penn Central, 438 U.S. 104 (1978), the

court admitted that it has been unable to develop any

“set formula” for determining when the Constitution re-

quires the government to compensate economic injuries

caused by public action. 438 U.S. at 124.

Although the court hus not endorsed a clear test to

determine whether a land use restriction is a taking, three

factors, derived from the Mahon analysis, have been em-

phasized by the court: (1) the character of the govern-

mental action; (2) the economic impact of the regulation

on the claimant and particularly; (3) the extent to which

the regulation has interfered with investment-backed ex-

pectations. See Connolly v. Pension Benefit Guar. Corp., 475

U.S. 211, 225 (1986) [Connolly]. These factors, although

derived from the Mahon analysis, have been shaped by

the court during the 68 years since Mahon was decided.

In determining whether a challenged regulatory mea-

sure effects a taking, the court first assesses the character

of a governmental action. See Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1005 (1984) [Ruckelshaus]; Loretto, 458 U.S. at

10

426; Prune Yard Shopping Center v. Robbins, 447 U.S. 74, 83

(1980); Kaiser Aetna, 444 U.S. at 175. When regulating the

use of property pursuant to its police power, the govern-

ment sometimes physically occupies the property, in

whole or in part, and at other times simply regulates the

landowner’s use of the property. See Penn Central, 438

U.S. at 124. The court has held that where the government

physically occupies the property, the action constitutes a

taking. Nollan, 483 U.S. 825, 831-32 (1987); Loretto, 458

U.S. at 426. In contrast, where the government simply

regulates the use of property, the court asks whether the

provision sufficiently implicates the public interest. See

Penn Central, 438 U.S. at 126-28. Where a particular regu-

lation benefits the public, it is less likely that the govern-

ment will be required to pay compensation.

A significant line of cases concerning regulatory en-

actments, decided after Mahon, gives much weight to the

public interest implicated by a given regulation. The

court has upheld legislative action, for instance, when

dealing with public interest. In Goldblatt v. Town of Hemp-

stead, 369 U.S. 590 (1962) [Goldblatt], the appellants owned

a tract of land upon which they had mined sand and

gravel for over 30 years, creating a large, deep, water

filled crater. Id. at 591. The town amended its ordinance

“to prohibit [mining] below the water table and to impose

an affirmative duty to refill an excavation presently be-

low that level”. Id. at 582. The court, again, analyzing the

issue under the Fourteenth Amendment, upheld the regu-

lation as a valid exercise of the police power notwith-

standing the fact that the regulation had completely

destroyed the mining utility of the property. Id. at 593.

11

Thus, under the Mahon analysis, if a State legislature

reasonably concluded that “the health, safety, morals or

general welfare” of the public would be promoted by

prohibiting particular uses of land, the pursuant regula-

tion would not constitute a taking, even if it would adver-

sely affect property rights. The court in Goldblatt noted,

however, that a regulation may be “so onerous as to

constitute a taking.” Id. at 594; See also Ruckelshaus, 467

U.S. at 1011-14 [guarantees of confidentiality and exclu-

sive use regarding trade secrets giving rise to reasonable

investment-expectations and disclosure of such secrets

constitutes taking]; Armstrong v. United States, 364 U.S. 40,

48 (1960) [government’s action destroying value of the

shipbuilder’s liens constitutes taking].

The second factor the court considers in evaluating a

given regulatory measure, and the focal one in Mahon, is

the extent of economic loss suffered by the owner. See

Penn Central, 438 U.S. at 124; Mahon, 260 U.S. at 414.

While no clear line has been drawn as to the degree of

loss requiring compensation, the court has noted that

even severe loss in value does not necessarily constitute a

taking. The court also has held that to determine the loss

actually suffered, the party must be considered as a

whole, not divided into its parts. Andrus v. Allard, 444

U.S. 51, 65-66 (1979) [Andrus]; Penn Central, 438 U.S. at

136-37.

The economic inquiry also focuses on the reasonable

investment-backed expectations of the owner. See Con-

nolly, 475 U.S. at 226; Ruckelshaus, 467 U.S. at 1005. The

landowner is protected from a change in land use regula-

tions if he makes substantial expenditures on a developed

project in good faith in reliance on a government act. The

12

court then assesses whether a regulation is a sharp rever-

sal of a governmental stance, upon which the aggrieved

owner specifically had relied by investing in the particu-

lar benefit that the questioned regulation would remove

or destroy. Generally, where beneficial uses of the proper-

ty remain, the court will not find interference with invest-

ment-backed expectations sufficient to constitute a

taking. See Andrus, 444 U.S. at 66; Penn Central, 438 US.

at 136. Further, the court tends to evaluate existing eco-

nomic activities, rather than loss of future profits.

In Penn Central the court illustrated the application of

its three part takings analysis. There, the court upheld a

landmark preservation law that prohibited Penn Central

Railroad from erecting an office building on top of Grand

Central Terminal in New York City. The court employed

its takings analysis to determine whether the government

must compensate for economic injuries caused by land-

marking, essentially regulating enactments made in the

public interest.

With respect to the character of a governmental ac-

tion, the court found that a “taking may more readily be

found when the interference with property can be charac-

terized as a physical invasion governed by government

than when interference arises from some public

program as adjusting the benefits and burdens of eco-

nomic life to promote the common good.” Penn Central,

138 U.S. at 124. The court further determined that it was a

regulation in which the public interest was great. Id. at

109. It then considered the economic impact of the regula-

tion on the claimant, and particularly, the extent to which

the regulation interfered with investment-backed expec-

tations. Id. While the claimants were not permitted to use

13

their ownership of air rights to build an office tower, the

court stated that other reasonable, beneficial uses of a site

remained. Id. at 138 n. 36. There was thus an insufficient

interference with investment at expectations. Id. at 138.

Because the regulations served a strong public interest,

did not completely destroy the economic value of proper-

| ty, and did not substantially interfere with the reasonable

investment-backed expectations, the Court held that the

regulation did not constitute a taking. Id.

The current approach to takings law, then, encom-

passes an examination of both the purpose of the regula-

tion and the devaluation of the property affected by the

regulation. This frame work has developed from the anal-

ysis set forth by Justice Holmes in Mahon. The court first

examines whether the regulation involves a physical in-

trusion onto the property. If so, the court finds a taking,

regardless of the magnitude of the physical intrusion. If

the government has simply regulated the use of property

in question, the court then assesses whether or not the

legislature has acted in the public interest. Where the

regulation benefits the health, safety, or welfare of the

public, the court evaluates the extent of economic harm

suffered by the property owner. The taking inquiry thus

has tended to focus primarily on the absolute or relative

severity of the economic impact of the regulation on the

complaining owner’s interest rather than on regulatory

| purpose. However, contrary to petitioner’s position here-

in,? the Mahon analysis contemplates, at least for a

% Petitioner refers in his petition [Pet. 7,12] to the Agins [v.

Tiburon, 447 U.S. 255 (1980)] test but same is nothing more than

(Continued on following page)

14

compensable taking, that the landowner prove, not only

that the burdensome regulation precluded him from

using his property, but also he must establish that the

enactment of the regulation extended beyond the govern-

ment’s legitimate exercise of its police power.

In First English, the court clearly stated that evidence

of both of the aforementioned factors is necessary to es-

tablish a compensable taking. Because the court’s deci-

sion was based on the adequacy of the church's

Complaint as a matter of law, and not as a resolution of

facts in the case, the court cautioned:

“We accordingly have no occasion to decide

whether the ordinance at issue actually denied

appellant all use of his property or whether the

county might avoid the conclusion that a com-

pensable taking had occurred by establishing

that the denial of all use was insulated as part of

the State’s authority to enact taking regulations

These questions, of course, remain open for de-

cision on the remand to be directed today.”

First English, 482 U.S. 304, 107 S.Ct. at 2384-85 (citations

omitted). Justice Stevens in First English clearly agrees

with the respondent's position. He maintains that “some

sort of improper purpose or insufficient justification must

be alleged in order to properly challenge the constitu-

tionality of an ordinance.” Id. at 2392 (Stevens, J.,

(Continued from previous page)

the Mahon analysis. Interestingly, the Court in First English

noted that it had earlier held that no taking occurred in either

McDonald Sommer and Frates v. Yolo County, 477 U.S. 340 (1986)

or Agins because it found the property owner’s allegations of

denial of all use were “false” as a matter of law. 482 U.S. at,

107 S.Ct. at 2384.

15

dissenting). Justice Stevens clearly limits the application

of the majority opinion to instances where both of the

aforementioned Mahon factors are met. He argues that the

court, “does not, and could not under our precedents,

hold that the allegation sufficiently allege a taking or that

the county’s effort to preserve life or property could ever

constitute a taking.” Id. at 2393 (Stevens, J., dissenting). In

particular, Justice Stevens referred to the traditional nui-

sance exception to the takings doctrine, established in

such cases as Hadacheck v. City of Los Angeles, 239 U.S. 394

(1915) [emissions from brick yard]; Mugler v. Kansas, 123

U.S. 623 (1887) [intoxicating liquors], whereby a health

and safety regulation cannot constitute taking because all

individuals hold property under an implied obligation to

refrain from injurious or obnoxious uses of their property.

First English, 107 S.Ct. at 2391 (Stevens, J. dissenting). The

three dissenting members of the court in First English

clearly feel that there can never be a taking without an

improper and arbitrary exercise of the police power by

the regulatory agency.

The decisions by the Fifth and Eleventh Circuits in

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

[Wheeler I]; Wheeler v. City of Pleasant Grove, 746 F.2d 1437

(11th Cir. 1984) [Wheeler II]; and Wheeler v. City of Pleasant

Grove, 833 F.2d 267 (11th Cir. 1987) [Wheeler III] are not in

conflict with the Ninth Circuit Court of Appeals in this

case and are inapposite.!” The Fifth Circuit in Wheeler

10 Norco Construction, Inc. v. King County, 801 F.2d 1143

(9th Cir. 1986) is inapposite. There developer brought civil

rights action against county based on county’s delay in ap-

proving developer’s preliminary plat application. The First

(Continued on following page)

16

| found that the enactment of the ordinance therein was a

“pald attempt to revoke an already authorized building

permit.” 664 F.2d at 100. The court went on to state

“findings by the trial court indicate this action was a

confiscatory measure. Under Maher v. City of New Orleans,

516 F.2d 1051 (5th Cir. 1975), cert. denied, 426 U.S. 905

(1966), if a regulatory undertaking is confiscatory in na-

ture, it is a taking.” 664 F.2d at 100. There were further

grounds for the finding of a taking, but, again, the grava-

men of the Wheeler I decision was the good faith reliance

on the prior permit approval and the sharp reversal

based upon public out crying and condemnation of all

apartment construction. Wheeler I] did not decide that a

taking occurred, but rather simply applied the “law of the

case” doctrine. 746 F.2d at 1441. Lastly, Wheeler III dealt

almost exclusively with how to calculate the compensa-

tion due when a taking has occurred. 833 F. 2d at 270.

The First English requirement of compensation for

temporary takings presents a problem only to the extent

that takings analysis is unpredictable. Based upon the

court’s decisions in Keystone and First English which reaf-

firm and to a certain extent re-formulate the Mahon analy-

sis, a proper balance between the individual landowner’s

right to protection against severe economic loss and the

need for legislatures to have some freedom in regulating

(Continued from previous page)

English court characterized such a situation as a “quite differ-

ent question” 482 U.S. __, 107 S.Ct. at 2389.

Sederquist v. City of Tiburon, 765 F.2d 756 (9th Cir. 1984)

|Sederquist], was a facial challenge wherein the court assumed

that both of the so-called prongs of the Agins test could be met.

Hence, even Sederquist is consistent with respondents’ position.

17

the use of land has been set forth. There is no need for

any further articulation of the exact parameters of the test

to be employed. It is not the “either/or” test urged by

petitioner, but rather a more flexible ad hoc fact oriented

inquiry and its application therefore is unique to each

case.

,%

bs

CONCLUSION

Respondents submit that the lower courts, based

upon the foregoing, properly granted their Motion to

Dismiss under Federal Rules of Civil Procedure, Rule

12(b)(6). Petitioner cannot piead, let alone prove any

compensatory taking occurred.

Keystone and First English have preserved the analysis

first set forth by Justice Holmes in Mahon and utilized by

the court during the 68 year interim between these deci-

sions. The Court in Keystone and First English has simply

proven that the Mahon diminution in value test is emi-

nently workable in the context of modern regulatory

needs. By defining more clearly how the respective ele-

ments of the test are to be weighed, the court took a step

toward eliminating inconsistent standards among lower

courts.

The fact that no question has been presented here in

which the court has not already long decided upon, or as

a matter of conflict in reality between the Circuit Courts

of Appeal, militates strongly in favor of denying and not

granting the Petition for Writ of Certiorari herein.

18

DATED: May 8, 1990

Respectfully submitted,

Mapory, BootH, ZELL AND PLEIss

A Professional Corporation

Larry T. PLEiss

17822 East 17th Street

Suite 205

Tustin, California 92680-2183

(714) 832-3772

Attorneys for Defendants and

Respondents, City of Costa Mesa

and the City Council of the

City of Costa Mesa

APPENDIX

A-1

APPENDIX A

Gary A. MOORE, Plaintiff-Appellant,

v.

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

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

Street Dedications.

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

“uniess 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 Hall v. City cf Santa Barbara, 833 F.2d

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

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

aw

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 U.S. 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

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-ef 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

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,

v.

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.

I. 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-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).

a

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

> 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).

© 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.

ee

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 (19_9).9 Regulation only constitutes a taking

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

of Gs

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

® 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.

9 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

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

GARY L. MOORE, ) G002071

Plaintiff and Respondent. Rg oye

Vv. )

CITY OF COSTA MESA, ee

Defendant and Appellant. )

)

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

C-2

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 Cl. 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-

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

do not address it here.

C-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

a

C-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) wnether 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

seinen tanita

C-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

C-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

wider <. 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 Cedication 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 in 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.]” (Scrutton 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.

a

C-7

NOT TO BE PUBLISHED

Trotter/s/

TROTTER, P.J.

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 wiil 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

C-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.

D-1

APPENDIX D

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

VS. ) JUDGMENT

) ON PETITION

THE CITY OF TA MESA, "

nad oe ESA, etc.) FOR WRIT OF

‘é ) 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,

D-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;

D-3

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

E-1

APPENDIX E

RELEVANT CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V, provides in

part:

“{NJor shall private property be taken for public

use without just compensation.”

United States Constitution, Amendment XIV, provides in

part:

“[N]o state shall . . . deprive any person

of... property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.”

RELEVANT STATUTE

The Civil Rights Act of 1871, 42 U.S.C. § 1983 provides:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be sub-

jected, any citizen of the United States or other

persons within the jurisdiction thereof to the

deprivation of any rights, privileges, or immu-

nities, secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proceedings for re-

dress.”

RELEVANT CODE

Costa Mesa Municipal Code, Section 13-316 provides:

“Wherever the approved and up-to-date master

plan of streets and highways for the City of

Costa Mesa indicates that additional private

property is required for street-widening pur-

poses, property dedications must be made by

E-2

the owner of said property prior to the granting

of any building permit for over two thousand

dollars ($2,000.00) in improvements on any one

lot, legal description, or ownership in any one

twelve-month period. Wherever the public con-

venience and necessity may be served, the city

shall have the power to grant encroachment per-

mits to the owner for the use of that portion of

the property dedicated as heretofore set out,

said encroachment permits being for uses other

than permanent structures or improvements by

said property owner.”

F-1

APPENDIX F

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, ) CIVIL CASE NO.

Plaintiff, 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)

-Vs-

CITY OF COSTA MESA, a

municipal corporation,

THE CITY COUNCIL OF THE

CITY OF COSTA MESA, and

DOES I through X, Inclusive,

Defendants,

(Filed Feb. 20, 1987)

wee eee eee eee”

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.

F-2

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.

F-3

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.

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,

F-4

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.

12. 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

I irs incteeenreeteenmeatimee

F-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 resvit

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.

ee

F-6

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 equal 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

ie naan

G-1

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF COSTA MESA, et al.,

Defendants-Appellees.

GARY A. MOORE, ) No. 87-6432

Plaintiff-Appellant, D.C. No.

_ ) CV87-1125MRP

) ORDER

)

)

(Filed Jan. 9, 1990)

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 Henorable Lloyd D. George, United States District

Judge, District of Nevada, sitting by designation.

TABULATION

Ae

ma ome

Covunaee

P dP 0G hd HSRED

Orrrci ont 1/8608

C Oem. /w ARE roves

a 1/600 &

TOTAL

OAR Boe Gerd wh

MBOC APE (OTHER

Mae GETBACK)

mace 145 38 a

peovwee 4

oven erace

Pamn mee ARGA

4 ote

SECOND FLOOR PLAN iis 5 me

18,008 «af.

@.et8 af.

are

‘a4 8TAULs

7.9 sTaus

10.86 8TaLe

204 STAs

660 a!.

606 a.

o.ere ersten

6,408 67./4a%

>

GARY PLAN FOR;

RY MOORE CARPETS

H-1

APPENDIX H

86 ACRES) 11,664 6.7. AFTER 8.0.8. DEDICATION

a“

OPPrce PHAGE TWO

1,488 «.!.

|

a?

FICE PHAGE OE

a 1,006 ef.

225WEST WRSON , COSTA MESA ,CALIFORNIA

- @'-" ON MABOMAY WALLS

7 O

WARTHOUSE-PHABE Od

1,764 eof.

sat. i EK p- —-b — 4

-« o ll ~

am ’ maseoneny 0 = |

ad. mere TLL be - ~}~ =

cv of

0 8 10 20 40

ZE-8 3-169

60

221 & 225 WEST WILSON