Petition for Writ of Certiorari — Buckley v. California Coastal Commission

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Supreme Court, U.S

vy) FILED

98 18 94 MAY 25199

Ars - GF int = Le °

In The

Supreme Court of the United States

PEGGY ANN BUCKLEY,

Petitioner,

CALIFORNIA COASTAL COMMISSION,

Respondent.

On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Second Appellate District, Division Two

PETITION FOR WRIT OF CERTIORARI

MicHAEL M. BERGER*

BERGER & Norton

A Law CorpPoRATION

1620 26th Street

Suite 200 South

Santa Monica, CA 90404-4040

(310) 449-1000

Counsel for Petitioner

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

\\4 0"

QUESTIONS PRESENTED

1. (a) May a state court rule, contrary to this Court’s

holdings in First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) and Lucas v.

South Carolina Coastal Council, 505 U.S. 1003 (1992), that

landowners who are prevented from improving and using their

land for a family home by invalid and unconstitutional land

use regulations — found by the court to be invalidly imposed

by a government agency acting without jurisdiction — may be

denied Sth Amendment just compensation for the resulting

regulatory taking of their land?

(b) May a state court rule that the supposed “rem-

edy” of landowners subjected to jurisdictionally invalid and

unconstitutional regulations is to knuckle under to the unlaw-

ful government demands and forego lawful use of their land

on pain of losing their right to seek just compensation in

court?

2. May a state court rule, contrary to this Court’s hold-

ings in First English, Lucas and Agins v. City of Tiburon, 447

U.S. 255 (1980), that unconstitutional land use regulations

that deny landowners all economically beneficial use of their

land for many years do not justify 5th Amendment compensa-

tion for a taking if the regulators (who lack jurisdiction to act)

can come up with some arguable — albeit invalid — basis for

their action?

3. May a state court nullify this Court’s holding in First

English (that the Sth Amendment compels compensation for

the period of time before a confiscatory regulation is struck

down), by ruling that no compensation can ever be constitu-

tionally due until after a court invalidates the regulation?

LIST OF PARTIES

In addition to the parties listed in the caption:

John Buckley.*

* John and Peggy Ann Buckley have divorced since the underlying

incidents occurred and have been represented by separate counsel at

bench.

TABLE OF CONTENTS

Page

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

I assoc 0d she ewad one 8496000000955 l

ea ea tapes ph ie eeu anes. eens onsen l

CONSTITUTIONAL AND STATUTORY PROVISIONS 3

Deum eeee se GO BOS CAGE 2c ccc ccc ccccvccvecses 3

REASONS FOR GRANTING THE WRIT............. 6

I FOR THE PAST TWENTY YEARS, CALIFORNIA

HAS CONSISTENTLY DENIED 5TH AMEND-

MENT PROTECTION TO ITS LANDOWNERS

AND HAS DEFIED THIS COURT’S HOLDINGS,

RESULTING IN WIDESPREAD INJUSTICE AND

AN UNDUE BURDEN ON THIS COURT. IT IS

TIME TO CALL A HALT TO THIS MAVERICK

Pb cg Cb ho Sieh er eeanae Cee. 6

A The Legal Climate in California Has Become

Openly Hostile to the Constitutional Rights of

i ice ec Uewe nee tneen saveyes 6

B- California’s Maverick Land Use Decisions Have

Consumed an Inordinate Part of This Court’s

Scarce Resources — More Than All Other Juris-

dictions Combined. It’s Time to Align Califor-

nia’s Takings Jurisprudence With the Rest of the

ee ee ee Ca Gee phase we o.¥ s 10

C In the Past Year, California Has Repeatedly

Thumbed Its Judicial Nose at This Court’s Deci-

sions, Ignored This Court’s Considered Holdings,

and Restored California Takings Law to its Anti-

Property Owner Bias of the Early 1980s ........ 12

TABLE OF CONTENTS - Continued

Page

II AS EXEMPLIFIED BY THE OPINION BELOW,

CALIFORNIA’S COURTS GIVE ONLY LIP SER-

VICE TO THIS COURT’S CONTROLLING DECI-

SIONS IN CASES SUCH AS FIRST ENGLISH AND

LUCAS. THE PROTECTION PROVIDED BY THE

5TH AMENDMENT IS IN FACT NOT AVAIL-

ABLE TO CALIFORNIA’S LANDOWNERS...... 15

III CURRENT CALIFORNIA LAW CONFLICTS

WITH THIS COURT’S DECISIONS BY HOLDING

THAT NO TAKING CAN OCCUR - REGARD-

LESS OF THE ECONOMIC IMPACT OF THE

REGULATORY ACTION - IF THE STATE HAD

AN ARGUABLY LEGITIMATE BASIS FOR ITS

oe err errr rrr re rrr Ty rye 19

IV IT CANNOT BE CONSTITUTIONAL TO

REQUIRE LANDOWNERS TO MAKE A HOB-

SON’S CHOICE OF SUCCUMBING TO THE

WRONGLY ASSERTED REGULATORY POWER

OF A GOVERNMENT AGENCY THAT HAS NO

JURISDICTION OVER THEIR PROPERTY, OR

LOSE THEIR ABILITY TO VINDICATE THEIR

RIGHTS UNDER THE JUST COMPENSATION

CLAUSE OF THE 5TH AMENDMENT.......... 22

CNT s oh ncn bench hana eres eee peneeesacene sas . 28

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980)..... 10, 18, 21

Alexander v. Town of Jupiter, 640 So. 2d 79 (Fla. App.

Sra orn pyre erry ys a ie ene Ae ee yr ey 17

Buckley v. California Coastal Commn., 68

Cal.App.4th 178 (1998) .........- cece eeeeeeeee passim

California Coastal Commn. v. City of Los Angeles,

L.A. Superior Ct. case no. 430788 (1983)........... 23

City of Monterey v. Del Monte Dunes at Monterey,

Bad Whe. Beek ee os nce desu i ecreutadvegonssvaneces 11

Cooper v. Aaron, 358 U.S. | (A errs e 15, 28

Cumberland Farms, Inc. v. Town of Groton, 247

Came. TIS CE. TGS) oc occ cen vecisccrewsvensces 17

Dames & Moore v. Regan, 453 U.S. 654 (1981)........ 21

Del Monte Dunes at Monterey, Ltd. v. City of Mon-

terey, 920 F.2d 1496 (9th Cir. 1990)............-.-. 12

Dolan y. City of Tigard, 512 U.S. 374 (1997)

OPO Cy Fee EE TY eee PT TT TET COE CE. 9, 11, 12, 26, 28

Eastern Enterprises v. Apfel, 524 U.S. __, 141

STR’ 2 8, | reer rer rrr rrr 22

Ehrlich v. Culver City, 512 U.S. 1231 (1994).......... 1]

Ex Parte Young, 209 U.S. 123 (1908).............. ee

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987)..........-. passim

Hensler v. City of Glendale, 8 Cal.4th 1 (1994)........ 16

Hodel v. Virginia Surface Min. & Recl. Assn., 452

ts & "i °) rn rer ers 1]

TABLE OF AUTHORITIES — Continued

Page

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

a Se , eerre rere enecrahivaed eee ces ee reels 12

Hughes v. Washington, 389 U.S. 290 (1967) ........... 20

Muriey v. Kincaid, ZS U.S. 9D (U9SS™) «cc vvecccesecees 21

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

oh PP eer re Eee 11, 20, 21

Keystone Bituminous Coal Assn. v. DeBenedictis, 480

ee ee COE, on oa oa bce cen eee eee aaa ee eee eA 11

Lake Country Estates v. Tahoe Reg. Plan. Agency, 440

SEDO on os 6005 ose eh ca bee ae eee eee 10

Landgate, Inc. v. California Coastal Commn., 17

Se TOU CODED sek va vevduceneheeveeseswans passim

Loretto v. Teleprompter Manhattan CATV Corp., 458

of 8 2: Ree rrr ere ee ee yee 20

Lucas v. South Carolina Coastal Council, 505 U.S.

i cs. oy aa te y ba wee wes 11, 13, 15, 17, 18, 21

MacDonald, Sommer & Frates v. County of Yolo, 477

EY UN ) os vnc. ne dee eee Cea 10

Mugler v. Kansas, 123 U.S. 623 (1887) ............... 21

Nollan v. California Coastal Commn., 483 U.S. 825

Ns eae baw hee eee eae eee cette passim

Parks v. Watson, 716 F.2d 646 (9th Cir. 1983)...... 25, 26

Penn Central Transp. Co. v. City of New York, 438

ee SEE bn. vis kv cn skedwekecnneedeanebeewaees 11

Pennell v. City of San Jose, 485 U.S. 1 (1988) ........ 11

Perry v. Sindermann, 408 U.S. 593 (1972).......... ao, ae.

vii

TABLE OF AUTHORITIES - Continued

Page

Pfeiffer v. City of La Mesa, 69 Cal. App.3d 74 (1977) .... 25

Preseault v. 1.C.C., 494 U.S. 1 (1990).......... 11, 16, 21

PruneYard Shopping Center v. Robins, 447 U.S. 74

BD oink coed ee ound ab ees bas 604 daenebeinewanets 10

Regional Rail Reorganization Act Cases, 419 U.S.

8, | rere mrs Sr et heer 21

Rindge Co. v. County of Los Angeles, 262 U.S. 700

| Sree er rr PererreT ity Ti 21

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)..... 21

San Diego Gas & Elec. Co. v. City of San Diego, 450

CE GRE CIN cond cavdeveisercusetvenstees 8, 10, 19

Santa Monica Beach, Ltd. v. Superior Court, 19

Cah Me G58 CIGGGD os ce ccd cedesswsensavececesss 13, 14

Suitum v. Tahoe Reg. Plan. Agency, 520 U.S. 725

CEE oc cwies duns dcasteneetievesvathekensersvneeens 11

United States v. Riverside Bayview Homes, Inc., 474

fh Be es. | rrr re errs Te 11

Yee v. City of Escondido, 503 U.S. 519 (1992)......... 11

Yuba Goldfields, Inc. v. United States, 723 F.2d 884

oo Be Serer rer rr 20, 26, 27

Whaler’s Village Club v. California Coastal Commn.,

173 Cal.App.3d 240 (1985). ......... 2. eee eee ee eee 24

Whitehead Oil Co. v. City of Lincoln, 515 N.W.2d 401

COU, FON oie tne rand b Fen 84 ¥s tether nes tenses 17

Vill

TABLE OF AUTHORITIES - Continued

Page

Williamson County Reg. Plan. Commn. v. Hamilton

a 2 rer re 11, 12, 16

Woodland Manor III Associates v. Keeney, 713 A.2d

MD wchevpadecacecd hee exeesaeek Dhciha ds 17

STATUTES

os ee ee Ok er ere is Ba

ae es es a OP OIE 9 6.00 0 be tease teenveuns 3, 22

ee en Te OP ce house cud bene ad oud we ene we eaeueees 2

CONSTITUTION

Rae. SOR, FANE Wie GE. Sisk ccc cvvendevesevevees 15

U.S. Constitution, 5th Amendment ................ passim

U.S. Constitution, 14th Amendment .................... 3

TExTs

Babcock & Siemon, The Zoning Game Revisited (Lin-

colin Inst. of Land Policy 1985) .................. 9, 11

Bauman, The Supreme Court, Inverse Condemnation,

and the Fifth Amendment, 15 Rutgers L.J. 15

GASSED GER SBR A RCO en eNeree Mek b arn me rN ere 7

Berger, You Can’t Win Them All — Or Can You? 54

Cal. State Bar J. 16 (Jan./Feb. 1979)..............2-. 24

Bosselman, Callies, & Banta, The Taking Issue

(Council on Environmental Quality 1973)............. 7

Callies, The Taking Issue Revisited, 37 Land Use Law

& Zetia Digdal © GY WGGs) co ccccvicccecvcvcceses 7

TABLE OF AUTHORITIES — Continued

Callies, Land Use Controls: An Eclectic Summary for

1980-1981, 13 Urban Lawyer 723 (1981).........

Coyle, Property Rights and the Constitution (State U.

OF oe: SU SOE webivdardceeceese eheneeee suns 9, 10

DiMento, et al., Land Development and Environmen-

tal Control in the California Supreme Court: The

Deferential,the Preservationist, and the Preserva-

tionist-Erratic Eras, 27 U.C.L.A.L. Rev. 859

CRD «onde eoaaes cowade eke nes Chaner eee aese ces

Fischel, Regulatory Takings: Law, Economics, and

Politics (Harvard U. Press 1995).............-6-.

Frieden, The Environmental Protection Hustle (M.I1.T.

rere rrr rr rere eee

Longtin, Avoiding and Defending Constitutional

Attacks on Land Use Regulations (Including

Inverse Condemnation), 383B NIMLO Municipal L.

Rev. POS 1GS CEST). ccc ccccvcccsredcsvencedouss

Meltz, Merriam, & Frank, The Takings Issue (Island

re Pre re rr rer rrr TT eT Tree

Merriam, A Planner’s View of Dolan, in Takings:

Land-Development Conditions and Regulatory Tak-

ings after Dolan and Lucas, ch. 10 at 211 (ABA

So re ee sae eae k Oke ROE Ra ev Ewe nea es

PETITION FOR WRIT OF CERTIORARI

Petitiorer Peggy Ann Buckley respectfully prays that a

Writ of Certiorari issue to review a final judgment and order

of the California Court of Appeal, Second Appellate District,

Division Two.

OPINIONS BELOW

The decision under review was filed 9n Dec. 1, 1998, and

is reported as Buckley v. California Coastal Commn., 68

Cal.App.4th 178, 80 Cal.Rptr.2d 562 (1998). (App., p. 1.)

Petitions for Rehearing were denied in an unreported order

filed Dec. 28, 1998. (App., p. 35.) The California Supreme

Court denied review in an unreported order filed Feb. 24,

1999. (App., p. 36.) The trial court's unreported Statements of

Decision, filed Nov. 18, 1993 and April 6, 1995, and Judg-

ments, filed Dec. 17, 1993 and July 12, 1995 (after a bifur-

cated trial), are at App., pp. 38, 47, 45, and 59 respectively.

This was the second round of appeals in this case. Ear-

lier, the Court of Appeal had issued an opinion on Oct. 15,

1997, reported at 68 Cal.Rptr.2d 146. The California Supreme

Court granted review on Jan. 28, 1998 and then, on July 8,

1998, transferred the matter back to the Court of Appeal with

directions to reconsider it in light of the Supreme Court's

recent decision in Landgate, Inc. v. California Coastal

Commn., 17 Cal.4th 1006 (1998) (App., p. 37).!

JURISDICTION

This case arises from the California courts’ refusal to

follow this Court’s Sth Amendment decisions and their refusal

to provide a compensatory remedy for a regulatory taking of

property. Here, as both courts held below, the California

Coastal Commission had no jurisdiction over Mr. and Mrs.

Buckley's property, but purported to regulate it anyway so as

' As a matter of California law, the Court of Appeal’s decision was

vacated when the Supreme Court granted review and transferred the matter

for reconsideration.

2? ’

to deny them the use of their land. (App., pp. 14, fn. 4; 15.)

When the Commission insisted on interfering with the con-

struction of a home on the Buckley property — by repeatedly

issuing “stop work” orders to the contractors and threatening i

to impose huge fines and punitive damages on them and the

Buckleys — the Buckleys sued, seeking compensation for the

de facto taking of their property under the Sth Amendment.

The trial court awarded such compensation for the Com-

mission's denial of use of the Buckleys’ land. The Court of

Appeal affirmed the adjudication that the Commission had

acted illegally and without jurisdiction, but nonetheless

reversed the compensatory remedy. Compelled to rely on the

California Supreme Court's recent decision in Landgate, Inc.

v. California Coastal Commn., 17 Cal.4th 1006, cert. den.,

142 L.Ed.2d 146 (1998), the Court of Appeal held that the

Commission's “mistaken” assertion of jurisdiction could not

result in a taking. It also held that, since the Commission

improperly asserted jurisdiction over only part of the Buck- i

leys’ land, there was no taking because they could have

knuckled under to the illegal assertion of regulatory power

and built something on the remainder of their land. '

Landgate is central to the case at bench. In it, the Califor-

nia Supreme Court simply refused to apply this Court's hold-

ing in First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304 (1987), and ruled that — as a matter

of law — no taking could occur during the period of time

between a government agency's wrongful regulatory action

and the time a court held it unconstitutional. That is directly

contrary to this Court's clear holding in First English. (See

pp. 15-17, infra.) Because the decision below was arrived at

under the compulsion of Landgate, the decision in Landgate

must be analyzed in this Petition in some depth.

a ee ee eee

The California Supreme Court denied review by a vote of

4-3, with Justices Baxter, Chin, and Brown dissenting. (App.,

p. 36.)

This Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§ 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fifth Amendment, United States Constitution:

“ .. . nor shall private property be taken for public use,

without just compensation.”

Fourteenth Amendment, United States Constitution:

“Section |... nor shall any State deprive any person of

life, liberty, or property without due process of law, ... ”

Pertinent portions of State law are at App., pp. 73-76.

STATEMENT OF THE CASE

In early 1988, John and Peggy Ann Buckley bought a

2.75 acre lot in an unincorporated part of Los Angeles County

known as Malibu. The lot was vacant and zoned for single-

family residential development; it was surrounded by similar

homes.

Although California’s coast is generally subject to the

regulatory jurisdiction of the California Coastal Commission,

the Legislature has exempted lots in single-family areas from

the Commission's jurisdiction. Those are regulated solely by

the local government. The only prerequisite was that the local

government formally grant exempt status to each individual

lot. (Cal. Pub. Res. Code §§ 30610.1, 30610.2; App., pp.

73-76.) Los Angeles County did so for the Buckleys’ entire

lot on Oct. 24, 1989 (App., p. 64), and so notified the

Commission.?

Accordingly, as of that date, the Commission lost juris-

diction over any part of the Buckleys’ lot. All courts below

agreed. (App., pp. 14, 61.) Apparently unwilling to relinquish

authority over the Buckleys’ property, the Commission falsely

asserted that the rear part of the lot was “environmentally

sensitive” and thus still under its control. As the trial court

would find, the Commission had no evidence to support its

2 In August 1989, the Commission had told the Buckleys that they

could not develop their lot unless they obtained either (1) a Commission

permit or (2) a certificate of exemption from the County. Within two

months, the Buckleys had done the latter.

assertion (App., p. 41), and all courts agreed that, in any

event, the law does not permit the Commission jurisdiction

over a portion of a lot. In short, the Commission's assertion of

jurisdiction was utterly baseless.

Beginning in October 1989, the County duly issued gra-

ding and building permits to the Buckleys for their single

family home. The County gave final approval in July 1990. In

March 1991, more than eight months after the County had

approved development, a landslide developed on the rear part

of the lot, and the Buckleys prepared to repair it. But the

Commission stopped them.* The Commission was aware of

the need to repair the landslide to prevent serious damage to

the property, but it nonetheless refused to permit the Buck-

leys’ requested repairs and thereafter repeatedly blocked their

efforts to do anything.

Notwithstanding its complete lack of jurisdiction over the

property, the Commission, on March 26, 1991 — nearly a year

and a half after the County issued its exemption certificate

(App., p. 64) — hand delivered to the Buckleys and their

contractor an order to “STOP WORK,” that said “[n]Jo grading

is permitted on this property,” noting that the Commission

had not issued a permit and ordering “all unpermitted work”

to stop. (App., p. 67; underlining in original; italics added.)

The Commission delivered another such stop work order to

the property on June 11, 1991. (App., p. 68.) Each stop work

order threatened to impose gargantuan fines and penalties on

the Buckleys and their contractors; the initial fine would be

$10,000, and it could be increased by $5,000 per day.

* Although not required — because the Commission had no

jurisdiction over their lot — the Buckleys did their best to work with the

Commission between May 1990 and March 1991 to obtain Commission

approval for their project (in an effort to avoid a costly, enervating battle

with a willful and well-funded adversary). The Commission turned them

down. The trial court found that it would have been futile for them to

continue thereafter to submit additional plans to the Commission. (App., p.

53.) Given the Commission's demonstrated attitude, that finding cannot be

gainsaid.

{SRN tt Sih! atta NG 0 0 Or EP

Ai aah Mae ny nah ce IN ae ee

On Nov. 12, 1991, the County’s Department of Public

Works ordered the Buckleys to repair the landslide. As the

Buckleys prepared to do so, the Commission delivered yet

another stop work order on Dec. 5, 1991. Again, the order

said that “[n]o grading or construction or landfill is permitted

on this property,” noted that the Commission had not issued a

permit for any work, and ordered “all unpermitted work” to

stop. (App., p. 70; emphasis added.)

The Commission's actions prevented the Buckleys from

using, repairing, or selling their property. (App., p. 52.) They

had become a shuttlecock between two regulatory agencies

warring with each other over their regulatory turf: the County

said “go,” but the Commission said “stop.”

The Buckleys sued the Commission for a taking of their

property under the Sth Amendment,* and the Commission

sued the Buckleys to “enforce” the Coastal Act and to collect

the fines and penalties noted above.

The trial court found that the Commission had no juris-

diction over the property, that its actions were improper, that

it presented no evidence that any part of the lot was environ-

mentally sensitive or in need of the Commission’s protection,

and that the Commission’s actions had taken the property

without compensation in violation of the federal and state

constitutions. (App., pp. 60-62.) Specifically, the court found

that the Commission's illegal interference prevented the

Buckleys from repairing the landslide, resulting in “egregious

erosion” of a “continuing” nature that permanently took the

property. (App., p. 52.) The trial court awarded the Buckleys

$1,355,837 as just compensation and $831,495 for attorneys’

fees and costs. (App., pp. 56, 62.)

The Court of Appeal agreed that the Commission had no

jurisdiction over the Buckleys’ property, but nonetheless

reversed the compensatory award. The court reasoned that the

4 The federal question was thus raised at the earliest moment, and

was argued throughout the trial and appellate briefing. Moreover, the tral

court expressly held that the Buckleys’ Sth Amendment rights were

violated and the Court of Appeal reversed that holding.

Buckleys (a) could have acceded to the Commission's

demands and built something on the front part of it (notwith-

standing the stop work orders that referred to the entire lot),*

and (b) were free to develop the entire lot as soon as the trial

court ruled against the Commission (notwithstanding the

Commission's continuing threats to seek ruinous fines and

penalties), and therefore the property was not taken. More-

over, said that court, under Landgate, the Commission's “mis-

taken” assertion of jurisdiction could not, as a matter of law,

be a taking, because no taking could begin until after the final

conclusion of all litigation over the validity of the Commis-

sion’s actions.

The California Supreme Court denied review by a vote of

4-3. (App., p. 36.) This Petition followed.

REASONS FOR GRANTING THE WRIT

FOR THE PAST TWENTY YEARS, CALIFORNIA HAS

CONSISTENTLY DENIED 5TH AMENDMENT PRO-

TECTION TO ITS LANDOWNERS AND HAS DEFIED

THIS COURT’S HOLDINGS, RESULTING IN WIDE-

SPREAD INJUSTICE AND AN UNDUE BURDEN ON

THIS COURT. IT IS TIME TO CALL A HALT TO THIS

MAVERICK JURISPRUDENCE

The Legal Climate in California Has Become Openly Hos-

tile to the Constitutional Rights of Property Owners

This Court's repeated holdings notwithstanding, Califor-

nia insists on marching to the beat of a different Sth Amend-

ment drummer. This is not just the Buckleys’ perception.

5 At no time did the court below explain how the asserted “freedom”

to knuckle under to an unconstitutional demand of a government agency

acting without jurisdiction, somehow cured the deprivation of the

Buckleys’ constitutional rights effected by the agency's illegal demands

that they stop all work on their property. It plainly did no such thing.

California holdings have become the subject of a drumbeat of

criticism and, at times, derision by commentators on both

sides of the issue. They have aptly characterized California's

attitude toward land owners as “more hostile . . . than any

other high court in the nation.” They concluded that Califor-

nia’s attitude was “extreme,”? “onerous [and] draconian”’® — in

short, “the most restrictive state in the country with respect to

land use.”° Even commentators outspokenly sympathetic to

government regulators concede that California's courts have

® DiMento, et al., Land Development and Environmental Control in

the California Supreme Court: The Deferential, the Preservationist, and

the Preservationist-Erratic Eras, 27 U.C.L.A.L. Rev. 859, 872 (1980). This

article was written by eight highly knowledgeable authors, including the

late UCLA law professor Donald G. Hagman, widely regarded as the

leading land use legal thinker and analyst of his time and noted for his

balanced position on the issues.

7 Fischel, Regulatory Takings: Law, Economics, and Politics 226

(Harvard U. Press 1995). The author is a professor at Dartmouth College,

and a highly regarded land economist of national stature.

8 Callies, The Taking Issue Revisited, 37 Land Use Law & Zoning

Digest 6, 7 (July 1985). The author, a professor of law at the University of

Hawaii, was co-author of one of the most influential books on land use -

one that was unequivocally written with a pro-regulation orientation. (See

Bosselman, Callies, & Banta, The Taking Issue [Council on Environmental

Quality 1973].) Professor Callies once summarized the California situation

this way (citing examples): “We all know the California courts won't let

landowners/developers build anything!” (Callies, Land Use Controls: An

Eclectic Summary for 1980-1981, 13 Urban Lawyer 723, 724 [1981].)

% Bauman, The Supreme Court, Inverse Condemnation, and the Fifth

Amendment, 15 Rutgers L.J. 15, 70 (1983). The author has seen both sides

of the issue, having served, at different times, as litigation counsel to the

National Association of Home Builders and as Chairman of the Maryland-

National Capital Park and Planning Commission (regulating land use in

Montgomery County, Md.).

applied this anti-property owner bias “consistently,” and that

it “pervades the body of California zoning law generally.”!'°

In 1987, this Court responded to California's idiosynera-

tic interpretation of the Sth Amendment. In reversing two

California decisions during a two-week span, this Court noted

how out of touch California law had become:

“Our conclusion on this point is consistent with the

approach taken by every other cour? that has con-

sidered the question, with the exception of the Cali-

fornia state courts. [Citing numerous cases from

other state and federal courts.]” (Nollan v. Califor-

nia Coastal Commn., 483 U.S. 825, 839 [1987],

emphasis added.)

This Court also plainly told California that it had not

been following the Sth Amendment:

.. the California courts have decided the com-

pensation question inconsistently with the require-

ments of the Fifth Amendment.” (First English

Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304, 311 [1987].)

“While the Supreme Court of California may

not have actually disavowed this general rule . .

we believe that it has truncated the rule by disal-

lowing damages that occurred prior to the ultimate

invalidation of the challenged regulation.” (First

English, 482 U.S. at 317; emphasis added.)

10 | Williams, American Land Planning Law § 6.03 at 115-116

(1974). Others openly gloated. See Longtin, Avoiding and Defending

Constitutional Attacks on Land Use Regulations (Including Inverse

Condemnation), 38B NIMLO Municipal L. Rev. 192-193 (1975), quoted

with disapproval in San Diego Gas & Elec. Co. v. City of San Diego, 450

U.S. 621, 655, fn. 22 (1981) (Brennan, J., dissenting, but expressing the

substantive views of five Justices).

One commentator noted that First English “brought Cali-

fornia, always at the fringe, in line with most other states.”!!

Unfortunately, that turned out to be a triumph of pious hope

over dismal reality.

Years later, nothing has changed; this Court's admonition

notwithstanding, Californians’ property rights remain very

much a constitutional “poor relation.” (Compare Dolan v. City

of Tigard, 512 U.S. 374, 392 [1997].) A poll of land use

experts on both sides of the issue found “California was a

near unanimous choice as the state least likely to protect

landowner rights. California municipalities . . . are accus-

tomed to meeting little resistance from the state courts.”!2

This merely confirmed what others had known already: Cali-

fornia had become the butt of black humor in the national

land use community. People elsewhere, it was said, “have

joked about why a developer would sue a California commu-

nity when it would cost a lot less and save much time if he

simply slit his throat.”'* In a more serious vein, these two

knowledgeable commentators!4 went on to observe that, “[i]n

California, the courts have elevated governmental arrogance

to a fine art.” (/d. at 263.) And so they have, the case at bench

being the quintessential “Exhibit A.”

'' Merriam, A Planner’s View of Dolan, in Takings: Land-

Development Conditions and Regulatory Takings after Dolan and Lucas,

ch. 10 at 211 (ABA 1996). The author is a noted pro-regulation advocate

and a past president of the American Institute of Certified Planners.

'2 Coyle, Property Rights and the Constitution 11 (State U. of NLY.

Press 1993).

'3 Babcock & Siemon, The Zoning Game Revisited 293 (Lincoln Inst.

of Land Policy 1985).

'4 The late Richard Babcock was, at the time, the recognized dean of

the Nation’s land use bar and — significantly — a vigorous defender of

expansive government regulatory control.

California’s Maverick Land Use Decisions Have Con-

sumed an Inordinate Part of This Court’s Scarce

Resources — More Than All Other Jurisdictions Combined.

It’s Time to Align California’s Takings Jurisprudence

With the Rest of the Nation

The upshot of “elevat{ing] governmental arrogance to a

fine art” is that California regulators do as they please.'*

After all, with a compliant judiciary that is willing to shield

them from accountability to the Constitution, even if it means

defying this Court’s pronouncements, they believe that they

have little to fear. The foreseeable result is more draconian

regulation'® that inspires more litigation. Abused property

owners who are backed into a corner feel they have nothing to

lose and file suit in the face of odds heavily against them.

And that brings cases here. Lots of them. A review of this

Court’s docket since 1978, when the modern era of this

Court’s regulatory taking jurisprudence began, reveals this

startling fact: land use cases arising in California account for

more of this Court's decisions in this field than those from all

other jurisdictions combined. Many of the household names

in Sth Amendment law arose in California: Lake Country

Estates v. Tahoe Reg. Plan. Agency, 440 U.S. 391 (1979);

PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980);

Agins v. City of Tiburon, 447 U.S. 255 (1980); San Diego Gas

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

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

340 (1986); First English Evangelical Lutheran Church v.

15 As Professor Coyle observed: “ .. . the basic message of the

[California Supreme] court was ‘Do what you want.’ ” (Coyle, supra, p.

156.)

16 It has been noted by another leading scholar, Professor Bernard

Frieden, then Chairman of the Planning Department at M.I.T., that

California land use laws have been freely abused so that, while paying lip

service to “good planning,” they were in fact applied to advance the

narrow, parochial self-interest of vocal suburbanites. (Frieden, The

Environmental Protection Hustle [M.1.T. Press 1979].)

County of Los Angeles, 482 U.S. 304 (1987); Nollan v. Cali-

fornia Coastal Commn., 483 U.S. 827 (1987); Pennell vy. City

of San Jose, 485 U.S. 1 (1988): Yee v, City of Escondido, 503

U.S. 519 (1992); Ehrlich v. Culver City, 512 U.S. 1231

(1994); City of Monterey v. Del Monte Dunes at Monterey,

Ltd., No. 97-1235 (argued Oct. 7, 1998: decision pending).!7

When the eleven cases decided by this Court from Cali-

fornia are compared to only ten land use regulatory taking

cases arising in all other jurisdictions combined," it is appar-

ent that something is alarmingly amiss in California’ One

State — no matter how large and populous — should not account

for more cases in this Court than the other Sixty-two jurisdic-

tions combined.'9 And this Court alone knows how many

unsuccessful petitions have been filed seeking review of addi-

tional California decisions.

The reason for this lopsided caseload is apparent: as

Babcock and Siemon put it, the California judiciary’s abject

deference to local land use regulators has encouraged “gov-

ernmental arrogance” (Babcock & Siemon, supra at p. 263),

and has led to a regulatory climate in which abuse of land-

Owners’ rights is unexceptional. This Court now has the

opportunity to respond by relieving California’s property

owners of their status as constitutional “poor relations” (see

'7 Although Del Monte Dunes came from the federal court system, it

was in court because of the mistreatment a California city meted out to the

property Owner — mistreatment emboldened by the California judiciary’s

historic deference to regulators.

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

(1978); Kaiser Aetna v. United States, 444 U.S. 164 (1979); Hodel v.

Virginia Surface Min. & Recl. Assn., 452 U.S. 264 (1981); Williamson

County Reg. Plan. Commn. v. Hamilton Bank, 473 U.S. 172 (1985); United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Keystone

Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987); Preseault v.

LC.C., 494 U.S. 1 (1990); Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992); Dolan v. City of Tigard, 512 U.S. 374 (1994); Suitum y.

Tahoe Reg. Plan. Agency, 520 U.S. 725 ( 1997).

'9 This figure is the sum of the other 49 states plus the 13 federal

circuits.

Dolan, 512 U.S. at 392) and, in the process, unburden its own

docket from this unseemly avalanche of California land use

cases. It is time to tell California that it is, after all, a part of

the Union.

In the Past Year, California Has Repeatedly Thumbed Its

Judicial Nose at This Court’s Decisions, Ignored This

Court’s Considered Holdings, and Restored California

Takings Law to its Anti-Property Owner Bias of the Early

1980s

There is no way to say this except plainly: in a series of

cases culminating during the last year, California has defi-

antly restored its law to what it was in 1986 — i.e., before this

Court corrected California's deviance through Nollan and

First English. It has de facto nullified this Court's holdings,

and has undermined whatever progress this Court mde in the

last two decades in bringing clarity to the law of regulatory

takings.*°

The criticism and recognition of this new California

reality has now gone beyond academics and practitioners. The

California Supreme Court is irreconcilably split: three of its

seven members have, in forceful language, exposed the Cali-

fornia position for what it ts.

Charging California with refusing to follow this Court's

constitutional decisions on regulatory takings, Justice Janice

20 It has also undermined this Court's procedural decision in

Williamson County that regulatory taking cases be fought primarily in state

courts “if a state provides an adequate procedure for seeking just

compensation. .. . (Williamson County, 473 U.S. at 195.) As now seems

obvious, California no longer provides even a theoretically “adequate

procedure for seeking just compensation” - having declared itself

unaffected by this Court's fundamental holdings — leaving California

property owners no alternative but to seek relief in federal courts. (See,

e.g., Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d

1496, 1507 [9th Cir. 1990]; Hoehne v. County of San Benito, 870 F.2d 529,

533-534 [9th Cir. 1989].)

Rogers Brown put it bluntly, but accurately: “in California, at

least for now, Lucas [v. South Carolina Coastal Council, 505

U.S. 1003 (1992)] is a dead letter.” (Landgate, Inc. v. Califor-

nia Coastal Commn., 17 Cal.4th 1006, 1043 {1998} [Brown,

J., dissenting].) This was based on the California majority's

“conviction that more than a decade of reinvigorated [United

States Supreme Court] takings jurisprudence has changed

nothing” (Santa Monica Beach, Ltd. vy. Superior Court, 19

Cal.4th 952, 1024 [1999] [Brown, J., dissenting]), a convic-

tion born of the “evident” fact that the California “majority is

unwilling to come to terms with the true meaning and opera-

tive effect of Lucas and First Lutheran.” (Landgate, 17

Cal.4th at 1041.)

Justice Marvin Baxter, in a lengthy and scholarly discus-

sion of this Court's takings jurisprudence, demonstrated that

the California majority simply refuses to follow this Court's

decisions. (Santa Monica Beach, 19 Cal.4th at 983-1018

(Baxter, J., dissenting].) Unmasking the majority's effort to

disguise its handiwork?! as seemingly in compliance with this

Court's teachings, Justice Baxter concluded simply that “[t]he

assumption of the majority that just compensation need not be

paid . . . finds no support in the authorities on which they

rely.” (/d. at 1003.) “Two centuries of jurisprudence since

Marbury v. Madison . . . have escaped notice.” (Id. at 1014.)

With respect to this Court's seminal decision in First

English, (a) establishing that the constitutional remedy for a

regulatory taking is compensation and (b) holding that tempo-

rary takings are entitled to the same constitutional protection

as permanent takings, Justice Ming Chin demonstrated that

the current California position not only ignores this Court's

holding, but actually embraces the dissent in First English.

(Landgate, 17 Cal.4th at 1034 [Chin, J., dissenting]; see also

17 Cal.4th at 1039 [Brown, J., dissenting].)

7! Such subterfuge is an old California tactic in this field. As this

Court noted in First English, “the California Supreme Court may not have

actually disavowed” the constitutional mandate, but its holdings “truncated

the rule.” (First English, 482 U.S. at 317: emphasis added.) Here, the

words may be different, but the tune is the same.

It is hard to improve on Justice Brown’s observation

that:

“when [the United States Supreme Court] has

made an attempt to resolve definitively a difficult

point of constitutional law that is applicable to the

very issue before us, we ought either to respect its

judgment or provide a reasoned basis for refusing to

do so. To do otherwise, in Charles Fried’s words is

‘judicial impudence.’ [Citation.]” (Landgate, 17

Cal.4th at 1035 [Brown, J., dissenting].)

California law has thus been plunged into such “a state of

confusion” (Santa Monica Beach, 19 Cal.4th at 983 [Baxter,

J., dissenting]), that Justices on both sides of the California

divide have urged this Court to resolve matters, “preferably

sooner rather than later” (Santa Monica Beach, 19 Cal.4th at

1035 (Brown, J., dissenting]). While it is not surprising that a

dissenter would do so, a member of the majority has also

acknowledged the presence of questions that “only” this

Court can resolve and, “given the importance of this area of

the law, I respectfully suggest that it do so when the oppor-

tunity next arises.” (Santa Monica Beach, 19 Cal.4th at

982-983 [Kennard, J., concurring].)

As shown more fully post, California is now openly

defying this Court’s interpretation of paramount constitu-

tional authority. It has embraced a “rule” that was flatly

rejected by this Court in 1987, and espoused then only by

Justice Stevens’ dissent. The fact that three of California’s

seven Supreme Court Justices are refusing to join that intel-

lectual rebellion, and are protesting in such strong language,

highlights it for all to see. Those same three Justices dissen-

ted when the California Supreme Court denied discretionary

review in this case. (App., p. 36.)

The line has been plainly drawn in the California sand. It

should be apparent that only an unequivocal response from

this Court can restore constitutional primacy west of the

Colorado River. As things stand now, California courts have

performed the intellectual equivalent of firing on Fort Sumter,

and thus far - alas — they have gotten away with it. It is high

time to put this unfortunate judicial ante bellum attitude to an

end. Judges “in every state” (U.S. Const., Art. VI, cl. 2) are

bound by the Constitution (see Cooper v. Aaron, 358 U.S. 1,

18 [1958]}), and that includes California. What is at stake here

is the integrity of the rule of law.

AS EXEMPLIFIED BY THE OPINION BELOW, CALI-

FORNIA’S COURTS GIVE ONLY LIP SERVICE TO

THIS COURT’S CONTROLLING DECISIONS IN CASES

SUCH AS FIRST ENGLISH AND LUCAS. THE PROTEC-

TION PROVIDED BY THE 5TH AMENDMENT IS IN

FACT NOT AVAILABLE TO CALIFORNIA’S LAND-

OWNERS

To see California’s open rebellion, one need go no further

than to compare this Court’s analysis in First English with the

1998 decision in Landgate. In First English, this Court

reviewed — and rejected — California’s rule that the remedy

for a regulatory taking was to invalidate the regulation. This

Court held that compensation was constitutionally mandated.

(First English, 482 U.S. at 315, 322.) When it overruled

California’s unconstitutional rule, this Court did so precisely

because California refused to permit compensation for the

period before judicial invalidation that a regulation kept pri-

vate property from being put to economically productive use.

The California rule that this Court consigned to the constitu-

tional scrap heap in 1987 is precisely what the California

Supreme Court resuscitated in Landgate and the Court of

Appeal applied in the case at bench. The deliberate nature of

California’s intellectual insurrection is apparent when one

reads First English. This Court could not have been clearer in

its Opening paragraph, which left no doubt as to the issue

before it, the correct rule, and California’s disregard of it:

“In this case the California Court of Appeal

held that a landowner who claims that his property

has been ‘taken’ by a land-use regulation may not

recover damages for the time before it is finally

determined that the regulation constitutes a ‘taking’

of his property. We disagree, and conclude that in

these circumstances the Fifth and Fourteenth

Amendments to the United States Constitution

would require compensation for that period.” (First

English, 482 U.S. at 306-307; emphasis added.)

“While the Supreme Court of California may

not have actually disavowed this general rule... ,

we believe that it has truncated the rule by disallow-

ing damages that occurred prior to the ultimate

invalidation of the challenged regulation.” (First

English, 482 U.S. at 317; emphasis added.)?

First English thus holds that, -once the regulatory action

is administratively final, compensation is constitutionally

compelled for the period during litigation that determines the

invalidity of the regulation when its impact is to prevent all

economically productive use of the regulated land.?3 Califor-

nia, however, has simply nullified this Court’s teaching. It has

defiantly re-established pre-First English law by holding that

the aggrieved landowner must first sue to invalidate the regu-

lation, and that such a litigational period is merely part of the

“normal delay” in the “planning process” and cannot —

regardless of the illegality of the regulation and its effect on

the property owner — result in a constitutional taking that

requires compensation. (Landgate, 17 Cal.4th at 1010.) Once

again, California has “truncated the [constitutional] rule”

(First English, 482 U.S. at 317) by refusing compensation for

22 See Id. at 319 [Sth Amendment “requires” payment for losses

“during this period”]; id. at 322 [payment for the use of the property

“during this period” is constitutionally mandated].

23 In Williamson County, this Court was explicit that, once

administrative finality is achieved, the case is ripe, then and there (473 U.S.

at 186-187), and it is not necessary for the aggrieved landowner to seek

non-monetary judicial review remedies before suing to seek just

compensation. (See also Preseault v. 1.C.C., 494 U.S. 1 [1990] [challenge

to constitutionality of statute is not ripe until after landowner seeks just

compensation].) California, however, has obverted that rule as well,

holding that aggrieved owners must exhaust all administrative and judicial

remedies before being able to seek just compensation. (See Hensler v. City

of Glendale, 8 Cal.4th 1, 10 [1994].)

——---

this period. And this time it did so knowingly, in spite of three

dissenters forecefully demonstrating the conflict with First

English.

Not only does the California position conflict with First

English, it conflicts with other state court decisions. See, e.g.,

Cumberland Farms, Inc. v. Town of Groton, 247 Conn. 196

(Conn. 1998); Woodland Manor III Associates v. Keeney, 713

A.2d 806 (R.I. 1998); Whitehead Oil Co. v. City of Lincoln,

515 N.W.2d 401 (Neb. 1994); Alexander v. Town of Jupiter,

640 So. 2d 79 (Fla. App. 1994). In each of these cases, the

courts held that a taking claim is ripe when administrative

proceedings have concluded and a final administrative deci-

sion has been made. As the Connecticut Supreme Court put it,

“It is unnecessary for the plaintiff to await judicial review of

the administrative action” because, as this Court held in First

English, invalidation of the regulatory action would not suf-

fice to provide the constitutionally-mandated compensation.

(Cumberland Farms, 247 Conn. at 213; emphasis in original.)

This Court’s decision in Lucas fared no better at the

hands of the California court. In Lucas, this Court held that

denial of all economically beneficial or productive use of

property, whether permanent or temporary, is a “categorical”

per se taking that requires compensation. (Lucas, 505 U.S. at

1015.) Under California’s newly resurrected pre-1987 rule,

however, even such a drastic impact cannot be deemed a

taking if the “development restrictions on the subject property

substantially advanced some legitimate state purposes!?4) so

as to justify the denial of the development permit.” (Land-

gate, 17 Cal.4th at 1022.)25

24 Of course, how there can be a “legitimate” governmental purpose

when, as here, an agency acts unconstitutionally and without jurisdiction

(i.e., beyond the purview of its legitimate powers) no one has bothered to

explain.

25 Landgate is the key here because the court below simply applied

Landgate’s rationale. As the court below noted, somewhat self-

consciously:

California’s current test applied in the case at bench is

thus contrary to Lucas. Indeed, it is contrary to Agins, where

this Court first announced disjunctively that a taking occurs if

a regulation either denies the property owner economically

viable use or fails to substantially advance a legitimate state

interest. (447 U.S. at 260.) Both here and in Landgate, the

California courts de facto overruled Agins and twisted this

Court’s disjunctive test into a conjunctive one. It is now not

enough to prove that the government denied all economically

productive use for a period of years (at bench, the period is

now 10 years); landowners would also have to prove that

there was no legitimate state interest served. That distortion

of Agins and defiance of the Lucas test rightly drew the

California dissenters’ ire. They concluded that the California

position is “flatly incompatible with Lucas.” (Landgate, 17

Cal.4th at 1042; Brown, J., dissenting.) They are right. And

they are not alone. The most recent book published about

regulatory takings agrees that Landgate is contrary to Lucas:

“(T]he [Landgate] majority said such reasonable

errors are a normal part of the regulatory process.

By contrast, agency error would be a taking under

Lucas~if it indefinitely eliminated all use of the

property, just as an authorized agency action would

be.” (Meltz, Merriam, & Frank, The Takings Issue

79 [Island Press 1999]; emphasis added.)?6

“For better or for worse, in a four-to-three decision, the

{California Supreme Court] majority held that a legally

erroneous decision of a governmental agency during the

development approval process that results in a delay of the

permit is not a taking, as long as there is an objective, sufficient

connection between the land use regulation in question and a

legitimate governmental purpose. [Citation.]” (Buckley, 68

Cal.App.4th at 200; App., p. 30; emphasis added.)

26 This analysis contrasting Landgate with Lucas seems particularly

significant here because one of its authors — Richard M. Frank — is a Senior

Assistant Attorney General for California, and was one of the lawyers who

convinced the California Supreme Court to rule as it did in Landgate. (See

17 Cal.4th at 1009.)

The benefit of this Court’s most fundamental takings

decisions — decisions that took many years and monumental

effort on this Court’s part to create?’ — is being withheld from

California’s landowners. They are no less entitled to constitu-

tional protection by this Court than landowners in other states

— and far more in need of it.

CURRENT CALIFORNIA LAW CONFLICTS WITH

THIS COURT’S DECISIONS BY HOLDING THAT NO

TAKING CAN OCCUR - REGARDLESS OF THE ECO-

NOMIC IMPACT OF THE REGULATORY ACTION - IF

THE STATE HAD AN ARGUABLY LEGITIMATE BASIS

FOR ITS ACTIONS

The decision below, building on the California Supreme

Court’s decision in Landgate, holds that there cannot be a

regulatory taking as long as the government had an arguably

legitimate basis for its actions. (App., p. 32; Landgate, 17

Cal.4th at 1022.)

Wrong.

This Court’s jurisprudence has consistently held that tak-

ings are measured by the impact of the regulators’ acts on the

property owner, not their intentions. The government can no

more confiscate private property for good reasons than for

bad ones. Indeed, in every direct condemnation case, there is

a finding of public use and public necessity. But the presence

of those factors does not vitiate the Just Compensation Clause

— on the contrary, it triggers its applicability. Justice Bren-

nan’s frequently cited opinion in San Diego Gas aptly encap-

sulated this Court’s teachings with this quote from Justice

Stewart:

“{T]he Constitution measures a taking not by what a

State says, or by what it intends, but by what it

does.” (San Diego Gas, 450 U.S. at 653 [Brennan,

27 Some of the tortured history is recounted in First English, 482 U.S.

at 310.

J., dissenting but expressing the substantive views

of a majority]; quoting with approval from Hughes

v. Washington, 389 U.S. 290, 298 [1967] [Stewart,

J., concurring]; emphasis in original.)

The Court of Appeals for the Federal Circuit expanded

on that thought:

“The purpose and function of the [Sth] Amendment

being to secure citizens against governmental

expropriations, and to guarantee just compensation

for the property taken, what counts is not what the

government said it was doing, or what it later says

its intent was. . .. What counts is what the govern-

ment did. [Citing Hughes.]” (Yuba Goldfields, Inc.

v. United States, 723 F.2d 884, 889 [Fed. Cir. 1983];

emphasis in original.)

This Court has applied that bedrock constitutional philos-

ophy repeatedly. For example, in Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982), the New York

Court of Appeals upheld a statute as a valid exercise of the

police power. But commendable goals, like good intentions,

are no substitute for adherence to the Just Compensation

Clause:

“The Court of Appeals determined that § 828 serves

[a] legitimate public purpose . . . and thus is within

the State’s police power. We have no reason to

question that determination. /t is a separate ques-

tion, however, whether an otherwise valid regula-

tion so frustrates property rights that compensation

must be paid.” (Loretto, 458 U.S. at 425; emphasis

added.)

Similarly, in Kaiser Aetna v. United States, 444 U.S. 164

(1979), the Corps of Engineers had decreed that a private

marina be opened to public use. This Court disagreed and, in

the process, explained the relationship between justifiable

regulatory actions and the takings clause of the Sth Amend-

ment:

“In light of its expansive authority under the Com-

merce Clause, there is no question but that Con-

gress could assure the public a free right of access

to the Hawaii Kai Marina if it so chose. Whether a

Statute or regulation that went so far amounted to a

taking, however, is an entirely separate question.”

(Kaiser, 444 U.S. at 174; emphasis added; citations

deleted.)28

And, of course, that concept is the underpinning for this

Court’s categorical rule that, if regulation denies all economi-

cally beneficial or productive use of private land, it is a per se

taking. (Lucas, 505 U.S. at 1015; see Agins, 447 U.S. at 260.)

That is why, under Lucas, a taking always occurs when

economically productive use is prevented, “without case-

specific inquiry into the public interest advanced in support of

such a restraint.” (Lucas, 505 U.S. at 1015; emphasis added.)

In other words, for a taking to occur, it matters not whether

the regulators acted in good or bad faith. What matters is the

impact of their acts, not their motives. Indeed, it has long

been settled that courts will not inquire into the motivation of

political decisions to take private property, thus making their

bona fides judicially off limits. (See, e.g., Rindge Co. v.

County of Los Angeles, 262 U.S. 700, 709 [1923]; Mugler v.

Kansas, 123 U.S. 623, 661 [1887].)

And yet, the rule applied in California (both below and in

Landgate), is that when the regulators snuff out all reasonable

private land use, requiring years of litigation to correct, the

28 In a similar vein are cases like Preseault v. 1.C.C., 494 U.S. 1

(1990), Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), Dames &

Moore v. Regan, 453 U.S. 654 (1981), and the Regional Rail

Reorganization Act Cases, 419 U.S. 102 (1974). In each of them, the Court

was faced with the claim that Congress, in pursuit of legitimate goals, had

taken private property in violation of the Sth Amendment. In each, the

Court directed the property owners to the Court of Federal Claims to

determine whether these exercises of legislative power, though legitimate,

nonetheless required compensation. This bedrock principle of the law of

constitutional remedies goes back to the unanimous decision in Hurley v.

Kincaid, 285 U.S. 95 (1932) (Brandeis, J.), where the Court held that the

remedy for a taking resulting from validly constructed government works

is just compensation, not judicial second guessing of valid government

policies and decisions.

property Owner cannot even contend that a 5th Amendment

violation occurred if the government can conjure up some

objectively rational basis for its actions. (App., p. 32; Land-

gate, 17 Cal.4th at 1022.) That telescopes takings analysis

into due process analysis, something this Court has expressly

refused to do. (E.g., Nollan, 483 U.S. at 834, fn. 3; Eastern

Enterprises v. Apfel, 524 U.S. __, 141 L.Ed.2d 451 [1998]

[compare plurality, concurring, and dissenting opinions].)

California’s focus on the regulators’ objective good faith

is thus wholly contrary to this Court’s consistent teachings,

and presents aggrieved landowners in that State with a

Catch-22 conundrum - i.e., absent bad faith on the part of the

government (say the California courts), there is no taking

(Landgate, 17 Cal.4th at 1022); but when landowners seek to

offer evidence of bad faith, they are told that they may not do

so (Landgate, 17 Cal.4th at 1022).

IT CANNOT BE CONSTITUTIONAL TO REQUIRE

LANDOWNERS TO MAKE A HOBSON’S CHOICE OF

SUCCUMBING TO THE WRONGLY ASSERTED REGU-

LATORY POWER OF A GOVERNMENT AGENCY

THAT HAS NO JURISDICTION OVER THEIR PROP-

ERTY, OR LOSE THEIR ABILITY TO VINDICATE

THEIR RIGHTS UNDER THE JUST COMPENSATION

CLAUSE OF THE 5TH AMENDMENT

It is undisputed that the California Legislature exempted

coastal properties like the one at bench from the Coastal

Commission’s regulatory grasp. Single family lots in areas

already built up in that fashion are to be regulated by the local

land use authorities, not the Commission. (Cal. Pub. Res.

Code §§ 30610.1, 30610.2; App., pp. 73-76.) The regulatory

jurisdiction shifted formally when the Buckleys obtained a

certificate of exemption from Los Angeles County on Oct. 24,

1989. (App., p. 64.)?9

Notwithstanding the Buckleys’ exemption, the Coastal

Commission continued to interfere with their efforts to build

even a single family home on their lot. Indeed, the Commis-

sion prevented the Buckleys from repairing a landslide on

their lot, a pointless and arbitrary action that caused severe

damage to the property to no rational purpose. On March 26,

1991, the Commission delivered a “stop work” order to the

Buckleys and their contractor. In all capital letters, on the

Commission’s letterhead, it said at the top of the page, “STOP

WORK” four times. The order identified the property by

street address and said:

“You are hereby notified to stop all unpermitted

work.[30] No grading is permitted on this property.

A Coastal Permit has not been issued for this pro-

ject.” (App., p. 67; emphasis added.)

The notice also threatened to impose fines for any work

on the property, including a base fine of $10,000 plus addi-

tional fines of as much as $5,000 per day. Similar notices

were delivered by the Commission on June 11, 1991 and Dec.

5, 1991. (App., pp. 68-72.) Confronted with the unmistakable

presence of the County’s certificate of exemption, the Com-

mission ingenuously asserted that a part of the Buckleys’

single lot was environmentally sensitive so the Commission

had jurisdiction over that part. That ploy flew in the teeth of

the statute, which exempted entire lots, and the County’s

29 Apparently, the Commission has never liked this legislative

restriction on its jurisdiction. In 1983, the Commission filed — and lost — a

challenge to exemptions issued by the City of Los Angeles. (California

Coastal Commun. v. City of Los Angeles, L.A. Superior Ct. case no. 430788

[1983].) Thus even though, as noted earlier, the Commission’s state of

mind is irrelevant, it is much more likely that its action was consciously

(and stubbornly) undertaken, rather than being “mistaken,” as gently

characterized by the Court of Appeal. (App., p. 31.)

30 The Buckleys had all the appropriate County development permits.

This reference is to a State permit that the Commission had no jurisdiction

to issue, deny, or even consider.

certificate, which also exempted the Buckleys’ entire lot.

(App., pp. 65-66.) Moreover, as the trial court found, the

Commission never presented evidence to support its claim of

environmental sensitivity (App., p. 41), thus rendering its

position unsupportable and plainly in bad faith. Nonetheless,

even after the trial court held that the Commission had no

jurisdiction over the Buckleys’ lot, the Commission remained

defiant. In the trial court’s words: “The Commission has

represented to the Court, through its counsel, that it will

continue to claim jurisdiction until all appeals are exhausted.”

(App., p. 50.)

But though without jurisdiction, the Commission was not

without power. Its “stop work” orders were directed to the

Buckleys’ contractors as well as to them. As each was posted,

the contractors immediately complied. After all, contractors

do business pursuant to State licenses, and no single family

home construction project can be worth risking either their

licenses or the kind of ruinous fines the Commission threat-

ened to impose. That same cloud of fiscal disaster hung over

the Buckleys themselves.*! Regardless of their firm belief in

the correctness of the trial court’s ruling, they had no guaran-

tee that the Commission would not somehow convince a

California appellate court to reverse it.32 Recall that, in

Nollan, the Commission persuaded the California courts that

reconstruction of a beachfront cottege would create a “psy-

chological barrier” which would justify what this Court

3! This is no hyperbole. See, e.g., Whaler’s Village Club v. California

Coastal Commn., 173 Cal.App.3d 240 (1985), where the California courts

held the Commission to be within its powers when it sought to confiscate

beachfront homeowners’ land and to fine them because they created

emergency revetments (without Commission approval) in order to save

their homes from being destroyed by unusually severe winter tides.

32 In light of the history of California’s attitude toward property

owners described earlier, that concern was not unfounded. Beyond that, the

Commission has for years had a record of reversing unfavorable trial court

rulings that is magnitudes better than that of mere mortal litigants. (See the

Statistics reported in Berger, You Can't Win Them All — Or Can You? 54

Cal. State Bar J. 16 [Jan./Feb. 1979].)

termed “out and out... extortion” of their land. (Nollan, 483

U.S. at 837-838.)

And yet, the Court of Appeal held that there was no

taking because the Buckleys could have developed the front

portion of the lot and could have developed all of it once the

trial court had ruled (App., p. 20).

What a Hobson’s choice to put before these innocent

citizens! Either concede regulatory power to an agency that

had no jurisdiction and lose the use of at least half of your

property, or lose the ability to seek constitutionally mandated

compensation for the impact of the agency’s actions. Actually,

under this court-imposed scenario, the Buckleys would lose

their constitutional rights either way for, in California, when

landowners comply with an unconstitutional government

demand under protest and then seek the adjudication of its

illegality, they are told by the state courts that their compli-

ance with the illegal demand is deemed to waive their rights.

(E.g., Pfeiffer v. City of La Mesa, 69 Cal. App.3d 74 [1977].)

This California rule plainly defies the unconstitutional

conditions doctrine; government cannot condition the exercise

of constitutional rights. (Perry v. Sindermann, 408 U.S. 593

[1972].) In Parks v. Watson, 716 F.2d 646 (9th Cir. 1983),

landowners asked the City of Klamath to vacate certain

“paper streets” (i.e., streets that appeared as lines on an

official map but that had never been built) across their land.

The city agreed but, in exchange, demanded title to the

owners’ geothermal wells. There was no connection between

the wells and the street vacation, and no question that the

wells were substantially more valuable then the streets sought

to be vacated. The landowners were simply convenient “fish

in a barrel” from whom the city thought it could extort

something to which it was not entitled. As the Court of

Appeals saw it, the city’s action was a demand that the

landowners give up their Sth Amendment right to compensa-

tion for their property as a condition to obtaining street

vacation. Holding the city’s position constitutionally infirm,

the court said:

“the government may not impose a choice between

the government benefit and the exercise of a consti-

tutionally guaranteed right.” (Parks, 716 F.2d at

650.)

In so holding, the court relied on Perry, where this Court

held that a public employer may not condition employment on

the employee’s forsaking First Amendment rights. This Court

likewise applied the Perry rule in Dolan, 512 U.S. at 385-386,

to the property owner’s claim that the city was forcing her to

choose between obtaining a building permit and being com-

pensated for property taken for municipal greenbelt/bikeway/

flood channel purposes.

Here, the Court of Appeal conditioned the Buckleys’

ability to seek compensation for a Sth Amendment violation

on their agreeing to submit to the exercise of power — not

lawful jurisdiction, but merely naked, unlawful power — by

the Commission in a way that the same court had already held

to be “void.” (App., pp. 15, 20.)

In this context, it bears emphasis that the government is

not merely another citizen. The Buckleys were faced with an

opponent that demonstrated both the will and the ability to

remain “in their face” for as long as it took to achieve its

goal. The Commission repeatedly posted “stop work” orders

that it had no authority to issue, and sent those orders to the

Buckleys’ State-licensed building contractors, threatening

their livelihood via ruinous fines for continued work. Its

lawyer (a Deputy Attorney General) wrote to them, repeating

the financial threats. Even after losing at trial, it told the trial

court that it would continue its claim of regulatory jurisdic-

tion until it had run out of appeals, which is just what it did.

And yet, in the teeth of that, the Court of Appeal faulted the

Buckleys because they did not defy the Commission’s stop

work orders and build with this sword of Damocles hanging

over them.

With respect, the Court of Appeal ignored reality. Or,

perhaps, it merely illustrated the grim reality that property

owners have to face in California courts. A more constitu-

tionally sensitive view of similar facts was expressed by the

Court of Appeals for the Federal Circuit. In Yuba Goldfields,

Inc. v. United States, 723 F.2d 884 (Fed. Cir. 1983), the

United States asserted ownership of property containing pre-

cious metals. The U.S. Army Corps of Engineers wrote to the

record owner of the mineral interest and ordered that further

dredging or removal of material “is prohibited.” As here and

in Landgate, the government said it asserted its claim “only

long enough to obtain a judicial determination.” (/d. at 886.)

But, unlike the California courts, the Federal Circuit

recognized the impact of such governmental conduct:

“The trial court’s characterization of the role of the

United States as that of a private person is flawed

by its disregard of the express notice, ‘dredging is

prohibited.’ Private persons do not talk like that;

governments do.

* * *

“(T]he United States is not a private party. It

imposes penalties, criminal and civil, the threat of

which lurks behind government statements like

those here involved, regardless of what the govern-

ment may have intended. The United States calls

upon unlimited resources.” (/d. at 889.)

The situation at bench is far more severe than in Yuba

Goldfields. The threat of penalties did not “lurk” behind the

scenes. It was right out front. Even though it lacked jurisdic-

tion, in every “stop work” order and ietter, the Commission

threatened the Buckleys and their contractors with debilitat-

ing fines. (App., pp. 67-72.) As this Court put it in the classic

opinion in Ex Parte Young, 209 U.S. 123, 146 (1908):

“When the legislature, in an effort to prevent any

inquiry of the validity of the particular statute, so

burdens any challenge thereof in the courts that the

party affected is necessarily constrained to submit

rather than take the chances of the penalties

imposed, then it becomes a serious question

whether the party is not deprived of the equal pro-

tection of the laws.”

The reality facing Mr. and Mrs. Buckley was that their

implacable foe was hovering over them, constantly threaten-

ing to bankrupt them and anyone who dared to work for them.

They had no “choice” to build anything; their only “choice”

was to surrender their constitutional rights to build on their

land (see Nollan, 483 U.S. at 834, fn. 2), or to surrender their

right to be compensated for the taking of their land (see First

English, 482 U.S. at 322). To say that the court below was

unrealistic when it so asserted in its Opinion (App., p. 20)

would be to indulge in gross understatement. What the record

shows is the Commission’s wrongful exercise of raw govern-

mental power that realistically prevented all use of the prop-

erty. It was a constitutional outrage for California’s appellate

courts to apply their own insular brand of “law” to tell the

Buckleys that their constitutional “rights” consisted of either

knuckling under to the Commission’s lawless demand or for-

feiting their right to the protection of the Sth Amendment.

This Court would not tolerate such parochial defiance of the

supreme law of the land when other constitutional rights were

threatened (e.g., Cooper v. Aaron, 358 U.S. 1), and no reason

appears why defiance of the Just Compensation Clause should

be tolerated here (compare Dolan, 512 U.S. at 392).

CONCLUSION

With the surfeit of land use litigation produced in Cali-

fornia’s courts and more than two decades of experience since

this Court announced in Agins that government action deny-

ing economically viable use of land requires compensation,

one thing is incontestible: there is no reported California case

in which a property owner has ever recovered compensation

for a regulatory taking from a California state court — in spite

of the fact that California is the most populous, the most

litigious, and probably the most highly regulated state in the

Union, that has spawned more regulatory takings cases in this

Court than all other American jurisdictions combined. The

reason for that is now abundantly clear: that’s the way the

California Supreme Court wants it and, to that end, it has no

inhibition about frustrating and indeed defying this Court’s

Sth Amendment decisions.

That situation must change. Californians are entitled to

better. The integrity of this Court’s holdings is entitled to

better. The Constitution is entitled to better. Mrs. Buckley

prays that certiorari be granted, that California’s rules be

brought in line with this Court’s settled jurisprudence, and

that the compensatory judgment entered by the trial court be

reinstated.

Respectfully submitted,

MicHaet M. Bercer*

BerGcer & Norton

Counsel for Petitioner

*Counsel of Record

App. 1

APPENDIX A

[No. B081544. Second Dist., Div. Two. Dec. 1, 1998.]

PEGGY ANN BUCKLEY et al., Plaintiffs and Respon-

dents, v. CALIFORNIA COASTAL COMMISSION, Defen-

dant and Appellant.

PEGGY ANN BUCKLEY et al., Cross-complainants and

Respondents, v. CALIFORNIA COASTAL COMMISSION,

Plaintiff, Cross-defendant and Appellant.

Alan V. Hager, Joseph Barbieri, Matthew Rodriguez and

Terry T. Fujimoto, Deputy Attorneys General, for Defen-

dant and Appellant and for Cross-defendant and Appel-

lant.

Thomas M. Banks, Shapiro, Rosenfeld & Close, Eliot G.

Disner and Elizabeth E. Webb for Plaintiffs and Respon-

dents and for Cross-complainants and Respondents.

OPINION

NOTT, J. -

The California Coastal Commission (Commission)

appeals from a judgment awarding $2,187,331.76 in dam-

ages, attorney fees and costs to respondents Peggy Ann

App. 2

and John Buckley for the taking of their property without

compensation. !

We affirm the trial court’s ruling that the Commission

had no jurisdiction over the rear portion of the Buckleys’

lot. However, the damage award is reversed because the

evidence does not establish that the mistaken assertion of

jurisdiction by the Commission amounts to a taking.

(Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th

1006 [73 Cal.Rptr.2d 841, 953 P.2d 1188].) For the reasons

stated below, we also reverse the award of attorney fees.

Il. Facts AND ProcepuRAL History

In January 1988, the Buckleys purchased an unde-

veloped lot in Malibu, which was at the time an unincor-

porated area of the County of Los Angeles (County). The

Buckleys intended to build a single-family residence on

the lot, which is located in an established single-family

residential community. They were informed by their real

estate broker that the lot was exempt from review or

regulation by the Commission for construction of a sin-

gle-family residence. The Buckleys paid $485,000 for the

property, and they invested between $200,000 and

$300,000 adding electricity, water, gas, a fence, a septic

1 According to a declaration filed in November 1996 by

counsel for John Buckley, the Buckleys are married but have

been separated and estranged for many months. Peggy Ann

Buckley had her own attorney for the damages phase of the

trial, and continues to be represented by separate counsel on

appeal. We will refer to the Buckleys separately when their

arguments on appeal require it.

App. 3

system, and a foundation for the garage to the property;

and having the building and grading plans developed.

The lot is 2.75 acres, rectangular in shape, running

lengthwise from east to west. The front portion of the lot

is a level area of about 1.15 acres that descends into a

steep ravine in the westerly or rear portion, covering

about 1.6 acres. Before it was purchased by the Buckleys,

significant road grading had occurred on the west portion

of the lot, including a road cut along the slope of the

ravine’s north side wall.

In November 1988, the Buckleys retained a soils engi-

neering firm. The geological engineer, Dale Glenn, testi-

fied that she first visited the site in 1988 with the soils

engineer, who “indicated that there were some stability

problems with the canyon and that in order to accomplish

development of the site, that it would be very likely that

the canyon would have to be filled in and that we needed

a study in that canyon.” However, Glenn described the

original grading plan, trial exhibit 30, as a plan for gra-

ding the front portion of the lot. In her direct testimony,

she was asked whether, as of February 27, 1990, “would it

have been possible for the Buckleys to develop their

property by simply grading the portion of the property

shown in exhibit 30 and constructing the residence that

was permitted in 1989?” Glenn replied, “Yes.”

Meanwhile, although they did not yet have grading

plan approval, by August 15, 1989, the Buckleys had

stockpiled fill dirt on the front portion of the lot. On that

date, the Buckleys received a letter from the Commission

stating that the property was located in the coastal zone,

and that a coastal development permit was required for

App. 4

any development. On August 25, in response to the Buck-

leys’ answer to its earlier letter, the Commission agreed

that the County had the authority to exempt from coastal

development permits development projects involving

new single-family homes.?

A subsequent letter from the Commission stated that

because the rear portion of the lot was in an environmen-

tally sensitive habitat area (ESHA), the rear portion was

not part of the exemption. The Buckleys were informed

that they could either seek a coastal development permit —

or submit to the Commission a valid exemption issued by

the County. They were warned that if they chose the

latter, they would not be allowed to develop the rear of

the property where the ravine is located.

The Buckleys replied that they were not developing

the rear portion of the lot and that if they decided to do

so in the future, they would seek a coastal development

permit.

The County issued the exemption on October 24,

1989. The Buckleys’ plans for grading the front portion of

the lot and building a residence of 15,000 square feet were

approved by the County.

In the fall of 1989, the Buckleys decided to sell the lot

rather than build on it. They were advised by real estate

2 The exemption is known as a “Calvo exclusion” after the

former state assemblyman who sponsored the legislation

permitting the exemption, which is codified at Public Resources

Code sections 30610.1 and 30610.2.

All further statutory references are to the Public Resources

Code unless otherwise stated.

App. 5

brokers in the area that a dispute with the Commission

would have a negative impact on the selling price. John

Buckley testified that he was told that with a permit to

build, the property was worth between $1.5 and $2 mil-

lion.

The Buckleys’ expert, Frederick Chin, a real estate

consultant and appraiser, testified that the land value

appreciated approximately 115 percent a year between

January 1988 and May 1990; and that the lot was worth

$1.3 million in May 1990.

A new grading plan, dated February 1990 and

referred to as exhibit 31 at trial, was readied for submis-

sion to the County. It called for three building pads in the

rear section of the lot: two pads in the ravine and one on

the ridge. The pads were to be for a garden, a riding ring

or tennis court, and a guest house. The plan was submit-

ted to the County in April 1990, but not submitted to the

Commission until October 1990.

Dale Glenn testified that the new grading plan would

have stabilized the ravine. However, she admitted on

cross-examination that the plan was designed to increase

usable space. She said, “The canyon was unstable, it

needed to be stabilized, that was going to create a great

expense for the Buckleys and to offset some of that

expense, we recommended that they do a grading solu-

tion that would gain saleable or some usable land on the

property as opposed to some other method which we

hadn't explored even at that time . . . for instance, soldier

App. 6

piles would put a great expense on the site and produce

nothing.”*

In February 1991, the Commission’s staff report rec-

ommended denial of the request because the develop-

ment would be inconsistent with the ESHA policies of the

California Coastal Act of 1976 (Pub. Resources Code,

§ 30000 et seq. (Coastal Act)). Glenn testified that a few

days after the rain in March 1991, just before the Commis-

sion’s March 13 hearing on the permit application, she

discovered a landslide condition on the lot. The Buckleys

informed the commissioners that a landslide had devel-

oped in the ravine and that it threatened the adjacent

properties. The Commission denied the application. The

Buckleys did not appeal the Commission ruling.

Just after the Commission’s denial, the County deter-

mined that the Commission had no jurisdiction over any

portion of the lot. As testified to by Dale Glenn, the

County approved the later grading plan, exhibit 31, on

March 19, 1991. The Buckleys began grading the lot. The

Commission sent a stop work order in March 1991 which

stated: “Re: Grading in a canyon, outside the exclusion

area with valid coastal development permit.” The order

notified the recipient “to stop all work. Any additional

3 Donald Kowalewsky, an engineering geologist called to

testify for the Commission, explained that soldier piles are

reinforced concrete caissons, two feet in diameter, with a steel

reinforcement beam down the center. In this case, the piles

could be placed in the ground near the top of the slope and

extend to a depth of about 40 feet, which would prevent future

deterioration of the slope from undermining the driveway or

the rest of the improved properties to the south of the area of the

landslide.

App. 7

unpermitted work on this site will be considered ... a

violation of the Coastal Act.” Shortly after that, Malibu

became an incorporated city, and a grading and construc-

tion moratorium was imposed on all city properties.

At some point, the Buckleys decided to grade the rear

portion of the lot based on the County approval they

received. In June 1991, the Commission again hand deliv-

ered a stop work order. The order notified the Buckleys

“to stop all unpermitted work. No grading is permitted

on this property. A Coastal Permit has not been issued for

this project.”

In August 1991, the Attorney General sent a letter to

the attorney who represented the Buckleys at the Com-

mission hearing. The letter stated that “the Commission

denied their permit application to develop the rear por-

tion of their lot. . . . Despite the denial and a stop work

notice . . . the Buckleys have continued to perform gra-

ding and filling on the site in violation of the Coastal

Act.”

In November, after a County geologist observed an

unstable natural slope on the rear of the lot and the

County ordered the Buckleys to abate the landslide that

was occurring there, they resumed grading. They also

filed for an emergency permit with the Commission on

the basis that there was a landslide condition that needed

immediate attention. An engineer from the Commission

and a geologist from the City inspected the lot and con-

cluded that the landslide condition did not pose an immi-

nent threat but was a normal consequence of the rains.

The engineer and the geologist also concluded that the

grading plan submitted by the Buckleys was not the

App. 8

minimum necessary to mitigate the geological conditions.

The Commission denied the emergency request on those

grounds. The Buckleys continued grading from Novem-

ber 27, 1991, until the Commission issued the final stop-

work order on December 5, 1991. It again stated that they

had to “stop all unpermitted work. No grading or con-

struction or landfill is permitted on this property. A

Coastal Permit has not been issued for this project.”

The Buckleys filed this declaratory relief action in

December 1991. The Commission subsequently filed an

action for injunctive relief and civil penalties and fines.

The Buckleys cross-complained in that case for declara-

tory relief and damages. The cases were consolidated,

and the Buckleys’ initial action was found to be the lead

case. That matter was then severed from the rest of the

action, and a court trial proceeded.

In the declaratory relief action, the court held that the

Commission had no jurisdiction over the lot. The Buck-

leys’ motion to sever that action from the cross-complaint

was granted. The trial court entered a final judgment in

the declaratory relief action, and the Commission filed a

notice of appeal.

Subsequently, the Buckleys placed the lot on the mar-

ket for a sale price of $1.4 million by order of the family

law court.

Trial proceeded on the Buckleys’ cross-complaint for

damages. The trial court awarded $1,355,837 in damages

for the permanent taking of their property, and

$831,494.76 in attorney fees, appraiser fees and costs.

App. 9

II]. CONTENTIONS

We will address the following contentions raised by

the Commission: (1) the Buckleys’ complaint for declara-

tory relief challenging the Commission’s jurisdiction over

the property is barred by their failure to file a writ of

mandate petition challenging the Commission’s permit

decision; (2) the trial court erroneously determined that

the rear portion of the Buckleys’ lot was exempt from the

permit requirements of the Coastal Act; (3) the Buckleys’

taking claim is barred by their failure to seek a writ of

mandate challenging the Commission’s jurisdiction; (4)

even if the Commission wrongfully asserted jurisdiction

over the property, its actions did not constitute a per se

taking of the property; (5) section 30005 has no applica-

tion to the issue of whether the Commission engaged in a

taking; (6) the Buckleys are not entitled to attorney fees

because there was no taking; and (7) the trial court was

biased against the Commission. In light of our resolution

of these issues, we need not discuss the Commission’s

argument that the trial court erroneously calculated the

amount of damages.

IV. Discussion

A. The Declaratory Relief Action Is Not Barred by the

Failure to File a Writ Petition

The Commission begins its argument with a citation

to section 30801, which provides: “Any aggrieved person

Shall have a right to judicial review of any decision or

action of the commission by filing a petition for a writ of

mandate in accordance with Section 1094.5 of the Code of

Civil Procedure, within 60 days after the decision or

App. 10

action has become final.” Asserting that the Buckleys’

permit application was denied on March 15, 1991, and

that they failed to file a writ petition challenging the

assertion of jurisdiction by May 15, 1991, or anytime after,

the Commission contends that the declaratory relief

action collaterally attacking the Commission's jurisdic-

tion is barred as a matter of law.

The trial court rejected the Commission’s argument

on the ground that the Commission did not have jurisdic-

tion over the lot at the time the permit was denied; and,

therefore, the Buckleys were not required to file a writ

petition. Thus, the question before us is whether the

statutes creating the exemption from coastal development

permits allow a partial lot exemption, which is the basis

of the Commission’s position; or whether an exemption

of any portion of a lot is an exemption of the whole lot,

which is the heart of the Buckleys’ argument.

1. Statutory language

“4h

[O]jur first task in construing a statute is to ascer-

tain the intent of the Legislature so as to effectuate the

purpose of the law. In determining such intent, a court

must look first to the words of the statute themselves,

giving to the language its usual, ordinary import. . . . The

words of the statute must be construed in context, keep-

ing in mind the statutory purpose, and statutes or statu-

tory sections relating to the same subject must be

harmonized, both internally and with each other, to the

extent possible. [Citations.] Where uncertainty exists,

consideration should be given to the consequences that

will flow from a particular interpretation. [Citation.] Both

App. 11

the legislative history of the statute and the wider histori-

cal circumstances of its enactment may be considered in

ascertaining the legislative intent. . . . [Citations.]” ’ [Cita-

tion.]” (Central Pathology Service Medical Clinic, Inc. v.

Superior Court (1992) 3 Cal.4th 181, 186-187 [10

Cal.Rptr.2d 208, 832 P.2d 924].)

Section 30610.1 required, within 60 days of its effec-

tive date, January 1, 1980, the Commission to designate

areas in the coastal zone where construction of a single-

family residence on a vacant lot meeting certain criteria

would not require a coastal development permit. “Areas

shall be designated for the exclusion provided for in this

section if construction of single-family residences within

the area to be designated has no potential, either individ-

ually or cumulatively, for significant adverse impacts

on... environmentally sensitive areas. ...” (§ 30610.1,

subd. (b).)

Subdivision (c) of section 30610.1 provides that no

coastal development permit is required for the construc-

tion of a single-family residence on any vacant lot which

meets certain criteria, including if it: “(2) Is a legal lot as

of the effective date of this section and conforms with the

minimum lot size and lot use designations of the applica-

ble general plan and zoning ordinances.”

Pursuant to section 30610.2, subdivision (a), a local

government with jurisdiction over a lot issues a written

certification that the lot is exempt from the coastal devel-

opment permit requirement because the lot meets the

criteria specified in subdivision (c) of section 30610.1.

According to the analysis of the Proposed legislation

by the Assembly Committee on Resources, Land Use, and

App. 12

Energy, the Coastal Act required a permit for construction

of any structure in the coastal zone. The requirement was

“criticized as overly-stringent when applied to the con-

struction of single-family residences in coastal areas

which are already substantially developed for residential

purposes.” Pursuant to the proposed new sections, in

unincorporated areas such as Malibu at that time, once

the Commission designated specific zones, “all lots

within such areas or zones would be exempt from the

permit requirement for single-family residences.”

The purpose of the legislation was to allow owners of

lots in designated areas to build single-family residences

without having to obtain a coastal development permit

from the Commission. Sections 30610.1 and 30610.2 had

the effect of eliminating the Commission’s participation

in the approval process for construction of single-family

residences within the designated areas.

There is no provision that allows the Commission to

designate a portion of a lot as being within sections

30610.1 and 30610.2. Both statutes use the term “a vacant

lot.” Once the Commission determined that a lot was

within the single-family residence construction area,

nothing in the statute permitted the Commission to retain

jurisdiction over the decision to develop any part of that

lot. If the Commission wanted to retain control over

whether to allow improvements in the southwest corner

of the Buckley lot, it had no alternative but to place the

entire lot outside the area designated for single-family

residence construction. By placing the lot within that

area, the Commission forfeited its control and its discre-

tion to approve or disapprove of construction on that lot.

_—————_ - ere ee ee ee

App. 13

To hold otherwise would not only add provisions to

the statutes that were not included by the Legislature, it

would also inhibit the legislative purpose of the statute. If

a portion of a lot placed within the single-family resi-

dence construction area is subjected to the coastal devel-

opment permit process, the owners must go through the

Commission to improve their property. The very purpose

of the statutes at issue here was to avoid that. We there-

fore hold that when the Commission, acting pursuant to

section 30610.1, placed any portion of a lot within the

single-family residence construction area, it placed the

entire lot within that area. By placing a lot within the

single-family residence construction area, the Commis-

sion relinquished jurisdiction over development decisions

regarding the entire lot thereby.

2. The Buckleys were not required to file a writ

petition

444

[A] matter within the commission’s jurisdiction’ ”

is any “quasi-judicial matter requiring commission

action... . ” (§ 30321.) Because the Commission had no

role in the construction permit process regarding the

Buckley lot, it follows that the Commission has no juris-

diction over the Buckley lot.

As stated in Abelleira v. District Court of Appeal (1941)

17 Cal.2d 280, 288 [109 P.2d 942, 132 A.L.R. 715], lack of

jurisdiction is “an entire absence of power to hear or

determine the case, an absence of authority over the

subject matter or the parties.” That is an apt description

of the relationship between the Commission and the

Buckleys’ single-family residence construction on the lot.

- App. 14

Subject matter jurisdiction cannot be conferred by

consent, waiver or estoppel. (Summers v. Superior Court

(1959) 53 Cal.2d 295, 298 [1 Cal.Rptr. 324, 347 P.2d 668];

National Union Fire Ins. Co. v. Stites Prof. Law Corp. (1991)

235 Cal.App.3d 1718, 1723 [1 Cal.Rptr.2d 570]; Rowland v.

County of Sonoma (1990) 220 Cal.App.3d 331, 333 [269

Cal.Rptr. 426].) Therefore, the fact that the Buckleys filed

an application for a coastal development permit and the

Commission denied the application did not confer on the

Commission jurisdiction over the improvement of the lot.

Because the Commission had no authority to deny the

permit, the Buckleys were not required to seek judicial

review of the denial. We do not disagree with any of the

authorities cited by the Commission for the proposition

that failure to obtain judicial review of a determination

by an administrative agency by a timely petition for writ

of administrative mandate renders the administrative

action immune from collateral attack. (See, e.g., Rezai v.

City of Tustin (1994) 26 Cal.App.4th 443, 448 [31

Cal.Rptr.2d 559]; Patrick Media Group, Inc. v. California

Coastal Com. (1992) 9 Cal.App.4th 592, 602 [11 Cal.Rptr.2d

824]; California Coastal Com. v. Superior Court (1989) 210

Cal.App.3d 1488, 1498 [258 Cal.Rptr. 567].) We simply

hold that the cases do not apply here.

4 The Commission also cites a series of cases, Hensler v. City

of Glendale (1994) 8 Cal.4th 1, 13-14 [32 Cal.Rptr.2d 244, 876 P.2d

1043], among them, to argue that res judicata bars the Buckleys’

declaratory relief action. We do not agree that Hensler would

support such a statement, but we need not discuss it or any of

the other cases cited to support this contention. Our conclusion

that the Commission had no jurisdiction over any

improvements on the lot completely resolves in favor of the

Buckleys the issue of whether the declaratory relief action was

barred.

App. 15

The rule of exhaustion of administrative remedies

does not apply where the subject matter lies outside the

administrative agency’s jurisdiction. (Public Employment

Relations Bd. v. Superior Court (1993) 13 Cal.App.4th 1816,

1827 [17 Cal.Rptr.2d 323]; Residents for Adequate Water v.

Redwood Valley County Water Dist. (1995) 34 Cal.App.4th

1801, 1808 [41 Cal.Rptr.2d 123].) The Commission had no

power to deny the Buckleys permission to improve any

portion of their lot. Because it lacked power to make any

determination, the denial of a permit to the Buckleys was

a void act that could be set aside at any time. (See Becker

v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493 [165

Cal.Rptr. 825, 612 P.2d 915].)

B. The Takings Claim Is Not Barred by the Failure to

File a Writ Petition

The Commission next argues that their failure to

challenge the Commission’s permit decision bars the

Buckleys from claiming that the Commission’s assertion

of permit jurisdiction resulted in a taking of their prop-

_ erty. The Commission cites the same authorities relied on

in the preceding contention. This argument, like the ear-

lier one, is based on the premise that the Commission had

jurisdiction. Our conclusion that the Commission did not

have jurisdiction when it denied the permit, and that the

matter falls within an exception to the doctrine of exhaus-

tion of administrative remedies, disposes of this issue as

well.

App. 16

C. The Trial Court Erred in Finding That the Commis-

sion’s Assertion of Jurisdiction Over the Buckley Lot

Was a Taking

After ruling that the Commission’s prohibition

against grading did not advance a legitimate state interest

and denied the Buckleys any economically viable use of

the lot, the trial court found that the Commission’s asser-

tion of jurisdiction over the development of the lot was a

per se permanent regulatory taking of the Buckleys’

property. The Commission is correct in its contention that

the ruling by the trial court was erroneous, because the

ruling is not supported by substantial evidence.

1. The substantial evidence test

Review of condemnation proceedings tried before the

court requires the appellate court to determine whether

there is any substantial evidence to support the findings.

(City of Commerce v. National Starch & Chemical Corp.

(1981) 118 Cal.App.3d 1, 18 [173 Cal.Rptr. 176].) The

substantial evidence rule applies as well on review from

inverse condemnation proceedings. (See Patrick Media

Group, Inc. v. California Coastal Com., supra, 9 Cal.App.4th

592, 605 [appellate court bound by implied finding of fact

supported by substantial evidence].)

Substantial evidence is not any evidence, but sub-

stantial proof of the essentials which the law requires in a

given case. (Roddenberry v. Roddenberry (1996) 44

Cal.App.4th 634, 651 [51 Cal.Rptr.2d 907].) Substantial

evidence has ponderable legal significance, is reasonable,

credible and of solid value. (Kuhn v. Department of General

Services (1994) 22 Cal.App.4th 1627, 1633 [29 Cal.Rptr.2d

App. 17

191].) We focus on quality, not quantity, because very

little solid evidence might be substantial, while a host of

extremely weak evidence might be insubstantial. (Rodden-

berry v. Roddenberry, supra, at p. 651.) Inferences may

constitute substantial evidence, but they must be the

product of logic and reason. Speculation or conjecture

alone is not substantial evidence. (Ibid.) The ultimate test

is whether it is reasonable for a trier of fact to make the

ruling in question in light of the whole record. (Kuhn v.

Department of General Services, supra, at p. 1633.)

2. The takings law

Governments are prohibited from taking private

Property for public use without compensation. (U.S.

Const., 5th and 14th Amends; Cal. Const., art. L § 19.) To

obtain compensation, the property owner may bring an

action for inverse condemnation. (United States v. Clarke

(1980) 445 U.S. 253, 257 [100 S.Ct. 1127, 1130, 63 L.Ed.2d

373] [inverse condemnation is an action to recover com-

pensation for taking of property by means other than

condemnation proceedings].) In an inverse condemnation

action, the property owner has the burden of alleging and

proving the owner’s property right and its infringement.

(Gilbert v. State of California (1990) 218 Cal.App.3d 234,

249-250 (266 Cal.Rptr. 891]; People ex rel. Dept. Pub. Wks. v.

Romano (1971) 18 Cal.App.3d 63, 72, fn. 4 [94 Cal.Rptr.

839].)

The mere assertion of regulatory jurisdiction by a

governmental body does not constitute a taking. (United

States v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121,

App. 18

126-127 [106 S.Ct. 455, 459, 88 L.Ed.2d 419].) The require-

ment that a person obtain a permit before engaging in a

certain use of the property does not itself take the prop-

erty; the very existence of a permit system implies that

permission may be granted to allow the owner to use the

property as desired. Even if the permit is denied, there

may be other viable uses available to the owner. Only

when a permit is denied and the effect of the denial is to

prevent economically viable use of the land in question

can it be said that a taking has occurred. (Ibid.; Dolan v.

City of Tigard (1994) 512 U.S. 374, 385 [114 S.Ct. 2309,

2316-2317, 129 L.Ed.2d 304] [land use regulation does not

effect a taking if it substantially advances legitimate state

interests or does not deny owner economically viable use

of the land]; Lucas v. South Carolina Coastal Council (1992)

505 U.S. 1003, 1015-1016 [112 S.Ct. 2886, 2893, 120 L.Ed.2d

798] [Fifth Amendment violated when land use regula-

tion denies owner economically viable use of land]; Agins

v. Tiburon (1980) 447 U.S. 255, 260-262 [100 S.Ct. 2138,

2141-2142, 65 L.Ed.2d 106].)

For example, in Lucas v. South Carolina Coastal Coun-

cil, a statute entitled the “Beachfront Management Act,”

enacted after the property owner purchased two residen-

tial beach front lots, barred the owner from building any

permanent habitable structures. The Supreme Court held

that “[w]here the State seeks to sustain regulation that

deprives the land of all economically beneficial use” (505

U.S. 1027 [112 S.Ct. at p. 2899]), the state must compen-

sate the owner for taking the property. However, as noted

by our Supreme Court in Kavanau v. Santa Monica Rent

Control Bd. (1997) 16 Cal.4th 761, 774 [66 Cal.Rptr.2d 672,

941 P.2d 851], a regulation may effect a taking even if it

App. 19

leaves the owner some economically beneficial use of the

property. Kavanau cites to footnote 8 in Lucas v. South

Carolina Coastal Council, wherein the United States

Supreme Court left open the possibility of a taking where

the deprivation caused by a regulation “is one step short

of complete.” (Lucas v. South Carolina Coastal Council,

supra, 505 U.S. at p. 1019, fn. 8 [112 S.Ct. at p. 2895.)

Whether the owner has been denied substantially all

economically viable use of the property is a factual

inquiry that requires the analysis of such factors as the

economic impact of the regulation, interference with the

landowner’s reasonable, investment-backed expectations

and the character of the government action. (Kaiser Aetna

v. United States (1979) 444 U.S. 164, 175 [100 S.Ct. 383, 390,

62 L.Ed.2d 332].) The basis of the inquiry is the owner’s

entire property holdings at the time of the alleged taking,

not just the adversely affected portion. (Keystone Bit-

uminous Coal Assn. v. DeBenedictis (1987) 480 U.S. 470, 497

[107 S.Ct. 1232, 1248, 94 L.Ed.2d 472].)

Temporary takings which deny a landowner all use

of property are not different in kind from permanent

takings, for which compensation is clearly required. (First

Lutheran Church v. Los Angeles County (1987) 482 U.S. 304,

318 [107 S.Ct. 2378, 2387, 96 L.Ed.2d 250].) The First

Lutheran court repeatedly used the term “all uses” to

describe a temporary taking. Later United States Supreme

Court permanent regulatory takings cases, such as those

cited above, have employed expressions more favorable

to the showing that must be made to establish a taking,

such as “ ‘economically viable use of [the] land’ ” (Dolan

v. City of Tigard, supra, 512 U.S. at p. 385 [114 S.Ct. at p.

2316]) and “all economically beneficial or productive use

App. 20

of land” (Lucas v. South Carolina Coastal Council, supra, 505

U.S. at pp. 1015-1016 [112 S.Ct. at p. 2893)).

3. The application of the substantial evidence rule

and the law of takings to this case

The trial court’s determination that there was a per-

manent taking of the Buckleys’ property was incorrect.

After the trial court ruled that the Commission had no

jurisdiction over the lot, the Commission’s stop work

orders no longer had any effect. Any taking that might

have occurred was ended by that ruling. There is no basis

in the facts, in the law, or in logic that would support the

view that a permanent taking occurred in this case. We

turn to the question of whether there was a temporary

taking of the Buckley property.

The evidence established that until the County

approved exhibit 31 after the landslide formed in March

1991, Buckleys had valid building and grading permits

for the front portion of the lot. Pursuant to the County

permits, the Buckleys or a subsequent owner were enti-

tled to proceed with the construction of the 15,000-

square-foot house that the Buckleys’ plans called for. The

Commission asserted jurisdiction only over the rear por-

tion of the property, where the ravine is located. The

Commission acknowledged that the front portion of the

lot was subject to County jurisdiction pursuant to the

Calvo exclusion, a point not in dispute after the exemp-

tion was issued by the County in October 1989. Indeed,

the initial grading permit the Buckleys sought from the

Commission concerned only the rear portion of the lot.

The Buckleys, however, chose not to grade and chose to

App. 21

build on only the front portion of the lot. Dale Glenn

testified that the later grading and building plan, exhibit

31, was developed in part because the ravine had to be

stabilized. However, the County had already approved

the Buckleys’ plan to build a 15,000-square-foot house on

the property without requiring any grading in the ravine

area. The Buckleys could have built or sold the property

before submitting exhibit 31 to the County.

Subsequently, exhibit 31 was approved by the

County. From this the Buckleys argue that the earlier

grading and building plan, exhibit 30, was superseded

and, because of the Commission’s refusal to allow them

to grade the rear of the lot they were not entitled to build

at all after March 1991. However, the Buckleys did not

establish that the County would not have been willing to

allow them to execute the earlier approved plan, exhibit

30, after the Commission did not approve the application

to grade the rear of the lot pursuant to exhibit 31.

Because the Buckleys could have developed the front

portion of the lot, or sold the lot with the County permits

in place, the grading restriction imposed by the Commis-

sion, though erroneous, did not prevent all economically

viable or productive use of the lot even before the Buck-

leys obtained a successful result in the declaratory relief

portion of the trial. Therefore, the record does not sup-

port a finding that there was a temporary taking in this

case.

App. 22

a. The impact of the landslide on the taking

analysis

To support the trial court’s ruling, Peggy Ann and

John Buckley both assert that after the landslide devel-

oped in the ravine, the Commission’s prohibition against

grading the rear of the lot effected a taking of the entire

lot because, at that point, the front portion of the prop-

erty could not have been developed without grading the

entire property. The evidence supports the position that

the landslide changed the situation on the rear portion of

the lot and made grading a necessity. The evidence does

not support the argument that, as a result, a taking

occurred.

Peggy Ann states that after the landslide, “any devel-

opment of the Lot would require the landslide to be

mitigated.” Both respondents rely on the testimony of

Dale Glenn, who stated that after the landslide she could

not provide to the County a report required by the Los

Angeles County Building Code, stating that no conditions

on the property would adversely affect the adjoining

properties. However, other portions of Ms. Glenn’s testi-

mony bring into question the Buckleys’ premises: first

that the grading plan they submitted to the Commission

was the only plan that would have remedied the land-

slide, and second that the Commission’s failure to

approve that grading plan the Buckleys submitted caused

them to be unable to build at all and thus effected a

taking.

Glenn testified that exhibit 31 was designed to create

more usable space for the Buckleys, to offset some of their

App. 23

expense. However, she did not testify that after the Com-

mission’s rejection of the exhibit 31 grading plan she

attempted to modify exhibit 31 in any way in order to

obtain approval for grading the ravine area with perhaps

only one or two pads.

The Glenn testimony undercuts the Buckleys’ posi-

tion, as does the testimony of the Commission’s engineer-

ing geologist, Donald Kowalewsky. Kowalewsky testified

that the rear portion of the lot could have been graded in

a way that would have stabilized the ravine with substan-

tially less grading than the Buckley’s proposed grading

plan. He recommended removing all the landslide mate-

rial and additional earth to a depth of 12 feet, and replac-

ing it with compacted fill. Drains would be placed within

the fill to prevent the groundwater from building up

behind the fill. The fill would be placed within a reinforc-

ing geofabric that would stabilize the fill and prevent it

from undergoing superficial instability such as the slide

currently taking place on the property.° According to

Kowalewsky, when finished, the slope would be land-

scaped to have a natural look. He stated that this pro-

posal would require “substantially less grading” than the

Buckleys’ plan.

In fact, the Buckleys did not attempt to work with the

Commission to develop a plan that would require less

° The geofabric was described as “a webbed net of a

specialized plastic material that does not deteriorate. . . . It is

typically placed about two feet apart, vertically, and it provides

additional strength to the soil such that the soils will not sheer

or break across or through this fabric material.”

App. 24

grading of the ravine. The Commission’s permit applica-

tion reviewer, Barbara Carey, testified that the Buckleys’

permit denial was not a denial of all development. The

Buckleys had the option of submitting a different grading

plan. At that point, the court commented that the Buck-

leys “did not want to.” But, as noted by the Commission’s

counsel, the Buckleys had a duty to mitigate their dam-

ages. Carey stated that the Buckleys never applied for a

grading permit with a plan for less development.

Carey also testified that, as a permit application

reviewer, “something like” Kowalewsky’s suggestion that

the failed earth material be removed and replaced with a

compact fill, reinforced by geofabric and subdrains

“would more likely be recommended for approval.” She

was also asked about Kowalewsky’s idea that a retaining

structure such as soldier piles be placed along the edge of

the driveway. Again she stated that such a plan would be

more likely to be recommended for approval, and she

testified that it would be less intrusive to the environ-

mentally-sensitive habitat area.

Therefore, the evidence at trial did not support the

Buckleys’ position. The grading plan the Buckleys

wanted was not necessarily the only one that would

accomplish the goal of stabilizing the ravine. The Com-

mission’s denial was not unreasonable, and no evidence

6 In her petition for rehearing, Peggy Ann argues that

Kowalewsky’s testimony was unreliable in part because Dale

Glenn had testified that the County does not allow geofabric. At

that time, however, it was the Commission, not the County, that

the Buckleys had to work with in order to develop an approved

grading plan for the rear of the lot.

App. 25

indicated that the Commission would not entertain a

different grading approach. The denial of the grading

plan submitted to stabilize the landslide was not a taking.

b. The effect of section 30005

Both Peggy Ann and John contend that the Commis-

sion interfered with their efforts to abate the landslide, in

violation of section 30005, which provides that no provi-

sion of the Coastal Act “is a limitation . . . (W]... [G] (b)

On the power of any city or county . . . to declare,

prohibit, and abate nuisances.” Even if true, such viola-

tion of section 30005 could not have caused a taking, in

light of our conclusion that the evidence does not show

that the Commission was against any grading of the

ravine whatsoever. The record shows that the Commis-

sion denied the first and only grading plan submitted by

the Buckleys, one that, according to the testimony of the

Buckleys’ geological engineer, was designed to gain more

usable land while stabilizing the ravine.

c. The Buckleys’ interpretation of the stop work

orders was not reasonable

Peggy Ann also argues that the Commission’s stop

work orders were not limited to the rear areas of the lot,

but related to the entire lot. She cites in support the

testimony of the Commission’s enforcement officer, Pam

Emerson, who admitted that the December 1991 stop

work order did not state that it was limited to the ESHA

area. However, Peggy Ann ignores other testimony on

this point.

App. 26

The March 1991 stop work order stated: “Re: Grading

in a canyon, outside the exclusion area with valid coastal

development permit.” The order notified the recipient “to

stop all work. Any additional unpermitted work on this

site will be considered . . . a violation of the Coastal Act.”

The June 1991 stop work order notified the Buckleys

“to stop all unpermitted work. No grading is permitted

on this property. A Coastal Permit has not been issued for

this project.”

The August 1991 letter from the Office of the Attor-

ney General to the attorney for the Buckleys at the Com-

mission hearing stated that “the Commission denied their

permit application to develop the rear portion of their

lot... . Despite the denial and a stop work notice . . . the

Buckleys have continued to perform grading and filling

on the site in violation of the Coastal Act.”

Finally, the December 1991 stop work order again

stated that the Buckleys had to “stop all unpermitted

work. No grading or construction or landfill is permitted

on this property. A Coastal Permit has not been issued for

this project.”

Although the June and December stop work orders

do not refer specifically to the rear portion of the lot, the

March stop work order did, as did the letter from the

Attorney General's Office. Pam Emerson, the enforcement

officer for the Commission, testified that the letters did

not refer to the rear of the lot because the Commission

knew that the Buckleys had a Calvo exclusion for the

front portion of the lot.

App. 27

John admitted that the Commission never stated that

it was asserting jurisdiction over the entire lot. Peggy

Ann testified that after the August 1991 letter, she

believed that she had the right to develop the property,

but she believed the Commission would never leave them

alone. She admitted, however, that she did not contact the

Commission to determine whether the stop work orders

referred to the whole lot. In fact, no one contacted the

Commission on behalf of the Buckleys to clarify this point

~ not the lawyer they hired to appear before the Commis-

sion, not the facilitator they hired to move their permit

through the Commission, not the lawyers they hired to

pursue this litigation. Moreover, John testified that they

put in electricity, water, gas, a fence, a septic system and a

foundation for the garage on the exempt portion of the

lot, but there was no evidence that the Commission inter-

fered with any of that work. Therefore, we conclude that

there was no evidentiary basis for the Buckleys’ position

that the Commission was prohibiting them from doing

any work on the lot.

d. The Buckleys did not establish that the per-

mits are no longer valid

Peggy Ann contends that if the Buckleys were

required to modify the approved County plans to accom-

modate a different grading plan after the change of juris-

diction from the County to the City of Malibu, they

would probably have to start the permit process over

again. However, the Buckleys did noi establish whether

the City of Malibu would in fact require them to start the

process again.

App. 28

The Buckleys’ appraiser, Mr. Chin, testified that he

did not check with the City or the County to determine

whether the permits issued by the County were still valid

at the time of trial. The Buckleys called Grant Lawseth,

who is with the County Building and Safety Division,

who testified that the City of Malibu was honoring build-

ing permits issued by the County, though he was not sure

about grading permits. On cross-examination, he testified

that he did not know whether the Buckleys tried to

determine whether their County permits are still valid. In

fact, the court itself noted that there was no evidence on

the question of whether the City of Malibu would honor

the permits issued to the Buckleys. It was, however, the

Buckleys’ burden to establish that, and there was no

evidence that they could not still build according to the

County-approved plans.

e. The Landgate Decision

Finally, the recent decision of our Supreme Court in

Landgate, Inc. v. California Coastal Com., supra, 17 Cal.4th

1006 precludes any monetary recovery by the Buckleys.

Boiled down to its essence, Landgate held that, under the

facts presented, an incorrect decision of the Commission

in asserting jurisdiction over property did not constitute

a temporary taking.

(1) Facts

Landgate is a developer which purchased land in

Malibu that was subject to the Coastal Act, and thus the

concurrent jurisdiction of the County and the Commis-

sion.

App. 29

Landgate proposed to grade its north lot and build a

large residence, which would include a guest house and a

swimming pool. The County gave its blessing to the

project.

Landgate applied to the commission for a permit,

which was denied on three grounds: (a) the visual impact

of the project on the environment, (b) excessive amounts

of grading, and (c) an illegal lot line.

Of the three reasons, the lot line adjustment was the

sticking point. Landgate had previously received County

permission to revise the lot lines of property it owned

because of a road which had been constructed in the area.

The Commission regarded the County’s action as illegal.

The County believed that the Commission had waived its

right to object by acquiescing in the construction of the

road.

Subsequently, Landgate revised its project to alleviate

any problems regarding visibility and grading. The Com-

mission denied the project once again, with the lot line

adjustment still being the major problem.

Landgate then filed two actions. The first was a writ

of mandate based on the argument that the Commission

had no jurisdiction over the lot line adjustment. The

second was a complaint for damages for a “taking” with-

out just compensation.

The trial court granted the writ of mandate, holding

that the lot line adjustment was not within the Commis-

sion’s purview. The trial court ordered the Commission to

rehear the application on its merits. The court of appeal

affirmed, holding that the Government Code did not

App. 30

authorize the Commission to invalidate a legally recorded

lot line adjustment to which the Commission had given

tacit approval.

In February of 1993, Landgate’s project (modified

again) was approved, subject to conditions relating to

height limits, drainage, color and landscaping, to which

Landgate did not object.

Both sides then filed for summary adjudication on

Landgate’s “takings” complaint. The trial court found that

the Commission’s erroneous assertion of jurisdiction pre-

vented the use of the property from February of 1991

until February of 1993 and awarded damages of $155,657.

The Commission appealed. Landgate also appealed that

the damages were too low.

(2) The decision

The Supreme Court granted review to decide a single

issue: Whether the Commission’s mistaken assertion of

jurisdiction led to a temporary taking.

For better or for worse, in a four-to-three decision,

the majority held that a legally erroneous decision of a

governmental agency during the development approval

process that results in a delay of the permit is not a

taking, as long as there is an objective, sufficient connec-

tion between the land use regulation in question and a

legitimate governmental purpose. (Landgate, Inc. v. Cali-

fornia Coastal Com., supra, 17 Cal.4th 1006, 1022.)7

7 Justice Chin and Justice Rogers each wrote separate

dissents, and each was joined by Justice Baxter. The thrust of

App. 31

The Supreme Court stated that a mere assertion of

regulatory jurisdiction did not equate to a regulatory

taking. (17 Cal.4th at p. 1027.) “[W]hen the Commission

determined that Landgate’s lot was not legal, it could

legitimately litigate the lot line question without offend-

ing the takings clause. The Commission could not be said

to have reached a final and authoritative determination of

the development on Landgate’s lot until after the dispute

about the legality of the lot had been resolved.” (Id., at p.

1029.)

Further, the Supreme Court said that the reality of

the application process is that, on occasion, disputes will

lead to judicial proceedings. However, so long as such

proceedings are not brought on by the arbitrary or capri-

cious acts of the governmental agency, the delay in

approval occasioned by judicial proceedings is simply an

unfortunate part of the normal process. (17 Cal.4th at pp.

1029-1032.)

(3) Application of Landgate

As in Landgate, the present case likewise involves the

mistaken assertion of jurisdiction by the Commission. In

the previous part of this opinion at part A.1., we have

held, in a question of first impression, that the Commis-

sion could not exempt a lot from having to obtain a

each dissent is that when a regulatory agency prohibits all use

of a particular property and the owner is forced to sue the

agency to achieve the correct result, a compensable taking has

occurred. Further, litigation over land use is not a “normal

delay.”

App. 32

coastal development permit and yet still retain jurisdic-

tion over another part of that same lot. Under the Land-

gate test, no taking is involved so long as there is an

objective and sufficient connection “between the land use

regulation in question and a legitimate governmental

purpose, so that the former may be said to substantially

advance the latter. [Citations.]” (17 Cal.4th at p. 1022.)

Similar to Landgate, the present matter essentially

involved a clash of wills between the County and the

Commission and, to a certain extent, the Buckleys. How-

ever, the record does not support a finding that there was

anything improper about the Commission’s position that

the rear portion of the lot was indeed an environmentally

sensitive habitat area. Nor is there any support for the

proposition the Commission’s motives were in bad faith.

In any event, as stated in Landgate, we are not to look at

the subjective motive of the government agency but

instead to determine whether objective evidence supports

the connection between the regulation and a legitimate

purpose. (17 Cal.4th at p. 1022.) As previously stated, the

evidence shows that there was indeed a connection

between the land use regulation and a legitimate govern-

mental purpose in attempting to control the rear portion

of the Buckleys’ property.

f. Conclusion as to taking

We conclude that the Buckleys did not establish that

the assertion of jurisdiction and denial of the grading

permit was either a permanent or a temporary taking.

There was, therefore, no basis for the trial court’s award

of damages, which is reversed.

App. 33

4. The Buckleys are not entitled to attorney fees

Code of Civil Procedure section 1036 provides: “In

any inverse condemnation proceeding the court render-

ing judgment for the plaintiff by awarding compensa-

tion . . . shall determine and award or allow to the

plaintiff, as a part of that judgment. . . a sum that will, in

the opinion of the court, reimburse the plaintiff’s reason-

able costs, disbursements, and expenses, including rea-

sonable attorney, appraisal, and engineering fees, actually

incurred because of that proceeding in the trial court or

in any appellate proceeding in which the plaintiff pre-

vails on any issue in that proceeding.”

Inasmuch as we have reversed the compensation

award because the evidence did not support a taking, we

must reverse as well the $831,494.76 in attorney fees,

appraisal fees and costs awarded pursuant to section 1036

of the Code of Civil Procedure. (City of Los Angeles v.

Property Owners (1982) 138 Cal.App.3d 114, 121 [187

Cal.Rptr. 667], review den. and cert. den.) Under the plain

language of the statute, since the Buckleys will not

receive a compensation award for inverse condemnation,

they are not entitled to attorney fees.

5. The trial court was not biased against the Com-

mission

The trial court several times used phrases such as

“government tyranny” and “tyrannical behavior” when

teferring to the acts of the Commission. Despite these

statements, our review of the massive record in this case

- |

App. 34

does not indicate that the court was biased against the

Commission to the extent that reversal is required on that

ground. (Contra, Catchpole v. Brannon (1995) 36

Cal.App.4th 237 [42 Cal.Rptr.2d 440].)

DISPOSITION

The judgment in the declaratory relief action (No.

BC044916) is affirmed. The judgment in the cross-com-

plaint for damages (No. $C015614) and the award of

attorney fees and costs are reversed. Each party is to bear

its own costs on appeal.

Boren, P.J., and Zebrowski, J., concurred.

App. 35

APPENDIX B

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION 2

December 28, 1998

BUCKLEY, PEGGY ANN

Plaintiff-Respondent

Vv.

CALIFORNIA COASTAL

COMMISSION

Defendant-Appellant

B081544

Los Angeles County No. BC044916

THE COURT:

Petition[s] for rehearing [are] denied.

cc: All Counsel

File

App. 36

APPENDIX C

Second Appellate District, Division Two, No. B081544

$066022

IN THE SUPREME COURT OF CALIFORNIA

PEGGY ANN BUCKLEY Et Al., Respondents

CALIFORNIA COASTAL COMMISSION, Appellant

(Filed Feb. 24, 1999)

Respondents’ petition for review DENIED.

Baxter, J., Chin, J., and Brown, J., are of the opinion

the petition should be granted.

/s/ GEORGE

Chief Justice

App. 37

APPENDIX D

Second Appellate District, Division Two No. B081544

$066022

IN THE SUPREME COURT OF CALIFORNIA

CALIFORNIA COASTAL COMMISSION, Appellant

PEGGY ANN BUCKLEY et al., Respondents

(Filed Jul. 8, 1998)

The above-entitled review is hereby transferred to

the Court of Appeal, Second Appellate District, Division

Two, with directions to vacate its decision and to recon-

sider the cause in light of Landgate, Inc. v. California

Coastal Com. (1998) 17 Cal.4th 1006.

/s/ George

Chief Justice

/s/ Mosk

Associate Justice

/s/ Kennard

Associate Justice

/s/ Werdegar

Associate Justice

/s/ Chin

Associate Justice

/s/ Brown

Associate Justice

/s/

Associate Justice

App. 38

APPENDIX E

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

PEGGY ANN BUCKLEY

and JOHN W. BUCKLEY,

Plaintiffs,

CASE NO. BC044916

{| ]} STATEMENT OF

DECISION [Cal. Rules of

Ct., Rule 232(c)]

)

) (Filed Nov. 18, 1993)

)

Vs.

CALIFORNIA COASTAL

COMMISSION, COUNTY

OF LOS ANGELES,

Defendants.

Trial pursuant to this Court's bifurcation order of

April 5, 1993 came on regularly for hearing, the Honor-

able William Huss, Judge presiding, on August 23, 1993

on the following issues:

(1) Whether or not the entire lot owned by

plaintiffs Peggy Ann Buckley and John W. Buck-

ley, located at 6815 Dume Drive Malibu, Califor-

nia (“the Lot”) is exempt from Coastal

Development Permit requirements; and

(2) Whether or not the California Coastal

Commission (“the Commission”) may in any

way limit plaintiffs’ compliance with the nui-

sance abatement orders issued by the County of

Los Angeles (“the County”) with respect to the

Lot.

Appearing for plaintiffs Peggy Ann Buckley and John

W. Buckley were Eliot G. Disner, Esq. and Beverly Tillett

Pine, Esq. Appearing for defendant California Coastal

A EOF GOI

App. 39

Commission was Terry Fujimoto, Esq. Appearing for

defendant the County of Los Angeles was Paul I.

Yoshinaga, Esq.

Documentary evidence was introduced on behalf of

the respective parties and the cause was argued and

submitted for decision. The Court, having considered the

evidence and heard the arguments of counsel and being

fully advised, issues the following statement of decision:

1. With regard to the issue of whether or not the Lot

in its entirety is exempt from Coastal Development Per-

mit requirements, the Court’s decision is that the entire

Lot is exempt from the Coastal Development Permit

requirements of the Coastal Act.

a. The Court has based its decision on the following

facts:

1. In January, 1988, the Buckleys purchased the

Lot which consisted of a vacant residential lot on which

they planned to build a single-family residence (Buckley

decl. ¥ 3).

2. The Lot is located in a developed single-

family residential community (Supp. Buckley decl. { 2).

[Text Deleted In Original]

4. On October 24, 1989, the County certified

that “the [L]ot and the proposed single-family residence

meets the requirements of Section 30610.1(c) of the Public

Resources Code and is thereby exempt from the coastal

development permit requirements of the Coastal Act”

(Plaintiffs’ Ex. 514).

App. 40

5. The County timely sent a copy of the Certifi-

cate of Exemption to the Commission (Admitted in Com-

mission’s Answer, { 10), which went unchallenged by the

Commission (undisputed).

6. Between October, 1989 and March, 1991, the

County then issued grading and building permits calling

for the grading and construction of a single-family resi-

dence on the Lot (Plaintiffs’ Ex. 522).

7. On October 5, 1990, the Buckleys applied to

the Commission for a coastal development permit which

was denied by the Commission on March 15, 1991. The

Buckleys did not appeal the Commission's denial by way

of petition for writ of mandate (undisputed).

8. In adopting the Calvo exclusion amendments

to the Coastal Act (PRC §§ 30610.1 and 30610.2), the

Assembly Committee on Resources, Land Use and Energy

noted that “[w]here the residential character of an area

has already been established, it is asserted there is little

public benefit to be achieved by requiring lot owners to

obtain coastal permits before building single family

homes.” Legislative Intent Service, Ex. 3a, pp. 1-2 (Plain-

tiffs’ Ex. 1 to August 19, 1993 Decl. of Burtram Johnson).

b. The legal basis for the Court’s decision is:

1. No coastal development permit is required

for the construction of a single-family residence on any

existing vacant lot meeting specified area and lot criteria

(PRC § 30610.1(a)).

2. The County had determined that the Lot met

the statutory requirements for exemption from coastal

development permit requirements pursuant to PRC

App. 41

§ 30610.1(c) and issued a Certificate of Exemption from

the coastal development permit requirements of the

Coastal Act for said Lot in accordance with PRC

§ 30610.2. The commission did not challenge the County-

issued Certificate of Exemption pursuant to CCP 1085

(undisputed).

3. The Commission cannot assert jurisdiction to

the rear portion of the Lot based upon Map 96 of the

Calvo AB 643 Final Adopted Maps (Plaintiffs’ Ex. 504)

because the Minutes of the Coastal Commission Meeting

for January 22-24, 1980 (Commission’s Ex. 2 to the Decl.

of Priscilla Goehler) approved and adopted only the

cross-hatched areas shown on the Calvo AB 643 Final

adopted Maps pursuant to PRC § 30610.1. The portion of

the Lot over which the Commission purports to assert

jurisdiction here is not within such cross-hatched areas

and was not specifically referred to in said minutes.

4. As to the portion of the Lot over which the

Commission purports to assert jurisdiction (the rear por-

tion of the Lot), the evidence fails to support the Commis-

sion’s claim that it falls within an environmentally

sensitive area as defined by PRC § 30107.5 or that desig-

nation of the rear portion of the Lot as such was officially

approved and adopted by the Commission.

5. The evidence also fails to support the Com-

mission’s claims that the rear portion of the Lot falls

within a Sensitive Coastal Resource Area as defined by

PRC § 30116, or that the Commission recommended to

the Legislature that the area be designated as such, or

that the Legislature so designated the area as such by

App. 42

statute, pursuant to PRC § 30502 in accordance with PRC

§ 30502.5 (undisputed).

6. The Commission's res judicata defense, based

upon California Coastal Commission v. Supertor Court (Ham)

(1989) 210 Cal. App. 3d 1488, is insufficient because the

Commission had no valid claim to subject matter jurisdic-

tion over the Lot at the time it denied plaintiffs’ applica-

tion for a coastal development permit. Id. at 1501. The

Certificate of Exemption applied to the entire Lot and

therefore there was no administrative remedy plaintiffs

had to pursue because the Commission exceeded its

authority obviating the need for any further administra-

tive remedy.

2. With regard to the issue of whether or not the

Commission may in any way limit plaintiffs’ compliance

with the nuisance abatement orders issued by the County

with respect to the Lot, the Court’s decision is that the

Commission has no authority to limit or interfere in any

way with the power of defendant County to declare,

prohibit, and/or order and proscribe the manner of

abatement of nuisances with respect to the Lot. Accord-

ingly, the Commission’s stop work orders bearing viola-

tion file number V-5-MAL-91-025 are void and of no

effect.

a. The Court based its decision on the following

facts:

1. On March 26, 1991, the Commission hand

delivered a stop work order referenced “Violation File

Number: V-5-MAL-91-025” to plaintiffs notifying them

that no grading would be permitted on the property, that

a Coastal Permit had not been issued for the project and

OP ORS eee

Raed Rais ARSE

se SRR NERO TPR aN ieee Dew

App. 43

that, any additional unpermitted work on the site would

be considered a knowing and intentional violation of the

Coastal Act which would subject plaintiffs to heavy mon-

etary fines and penalties (Plaintiffs’ Ex. 517).

2. On June 11, 1991, the Commission hand

delivered a second stop work notice with respect to the

Lot (Plaintiffs’ Ex. 518).

3. On November 12, 1991, the Department of

Public Works for the County ordered plaintiffs to perform

grading on the Lot pursuant to the grading permit issued

by the County to abate the hazardous condition on the

Lot identified in the geotechnical reports reviewed by the

County (Plaintiffs’ Ex. 524).

4. On December 5, 1991, the Commission hand

delivered a third stop work notice with respect to the

entire Lot (Plaintiffs’ Ex. 519).

5. On March 6, 1992, the Department of Public

Works for the County of Los Angeles again ordered plain-

tiffs to perform grading on the Lot pursuant to the gra-

ding permit issued by the County to abate the hazardous

condition which had developed on the Lot (Plaintiffs’ Ex.

531).

b. The legal basis for the Court’s decision is:

1. The Commission has no authority to limit in

any way the power of the County to declare, prohibit and

abate nuisances (PRC § 30005), including the issuance of

any stop work orders.

2. The Commission cannot legally claim juris-

diction over any portion of the Lot (paragraphs 1 b. 1-6

are incorporated herein by reference).

App. 44

Judgment is hereby ordered to be entered as follows:

1. The Lot in its entirety is exempt from the Coastal

Development Permit requirements of the Coastal Act,

PRC § 30000 et seq.

2. The Commission has no authority to limit or

interfere in any way with the power of the County to

declare, prohibit, and/or order and proscribe the manner

of abatement of nuisances with respect to the Lot.

Accordingly, the Commission’s stop work orders bearing

violation file number V-5-MAL-91-025 are void and of no

force and effect.

Dated: NOV 18 1993

/s/ William Huss

Judge of the

Superior Court

Prepared and submitted by:

SHAPIRO, POSELL, ROSENFELD & CLOSE

A Professional Corporation

2029 Century Park East, Suite 2600

Los Angeles, California 90067

(310) 277-1818

By /s/ Beverly Tillett Pine

Beverly Tillett Pine

One of Plaintiffs’ Attorneys

App. 45

APPENDIX F

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

PEGGY ANN BUCKLEY ) CASE NO. BC044916

and JOHN W. BUCKLEY, ) JUDGMENT AFTER

Plaintiffs, TRIAL BY COURT ON

BIFURCATED ISSUES

(Filed Dec. 17, 1993)

VS.

CALIFORNIA COASTAL

COMMISSION, COUNTY

OF LOS ANGELES,

Defendants.

ll ee ee

Pursuant to this Court’s bifurcation order of April 5,

1993, trial commenced before the Honorable William

Huss, Judge Presiding, on August 23, 1993 on the follow-

ing issues:

(1) Whether or not the entire lot owned by

plaintiffs Peggy Ann Buckley and John W. Buck-

ley, located at 6815 Dume Drive, Malibu, Cali-

fornia (“the Lot”) is exempt from Coastal

Development Permit requirements; and

(2) Whether or not the California Coastal

Commission (“the Commission”) may in any

way limit plaintiffs’ compliance with the nui-

sance abatement orders issued by the County of

Los Angeles (“the County”) with respect to the

Lot.

Appearing for plaintiffs Peggy Ann Buckley and John

W. Buckley were Eliot G. Disner, Esq. and Beverly Tillett

Pine, Esq. Appearing for defendant California Coastal

App. 46

Commission was Terry Fujimoto, Esq. Appearing for

defendant the County of Los Angeles was Paul I.

Yoshinaga, Esq.

Documentary evidence having been presented by

both parties, and the cause having been argued and sub-

mitted tor decision, and the Court having filed its State-

IT IS ORDERED, ADJUDGED, AND DECREED that:

1. The Lot in its entirety is exempt from the Coastal

Development Permit requirements of the Coastal Act,

PRC § 30000 et seq.

2. The Commission has no authority to limit or

interfere in any way with the power of the County to

declare, prohibit, and/or order and proscribe the manner

of abatement of nuisances with respect to the Lot.

Accordingly, the Commission’s stop work orders bearing

violation file number V-5-MAL-91-025 are void and of no

torce and ettect.

Dated: DEC 17 1993

/s/ William Huss

Judge of the Superior Court

BSP TPS PETRA SVAN AER SEN: IL el NRE

App. 47

APPENDIX G

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

CALIFORNIA COASTAL

COMMISSION,

Plaintiff,

VS.

PEGGY ANN BUCKLEY

and JOHN BUCKLEY,

Defendants.

PEGGY ANN BUCKLEY

and JOHN BUCKLEY,

Cross-Complainants,

VS.

CALIFORNIA COASTAL

COMMISSION, COUNTY

OF LOS ANGELES,

Cross-Defendants.

)

—

CASE NO.

SC015614/

BC044916

STATEMENT

OF DECISION

(Filed Apr. 6, 1995)

On December 20, 1991, Peggy Ann Buckley and John

W. Buckley (“the Buckleys”) filed Case Number BC (44

916. Thereafter, on March 5, 1992, the California Coastal

Commission (“Commission”) filed Case Number SC 015

614. On May 11, 1992, the Buckleys filed a Cross-Com-

plaint in Case Number SC 015 614 seeking declaratory

relief identical to that in Case Number BC 044 916 and, in

addition, damages for an unlawful taking of their prop-

erty. Case Number SC 015 614 was transferred to this

App. 48

Court from the West District of the Los Angeles County

Superior Court. Thereafter, on April 15, 1993, the two

cases were ordered consolidated for trial on bifurcated

legal issues.

The Court, by its Statement of Decision on November

18, 1993, in Case No. BC044916 (incorporated by refer-

ence herein), found that an undeveloped lot located at

6815 Dume Drive, Malibu, California (“the Lot”) owned

by cross-complainants the Buckleys was exempt from the

jurisdiction of the Commission. On December 17, 1993,

the Court ordered the cases severed and the remainder of

Case Number SC 015 614 was set for triai.

By Order of November 28, 1994, the Court summarily

adjudicated that the Commission’s assertion of jurisdic-

tion over the Lot constituted a per se taking of the Lot

under the Fifth and Fourteenth Amendments of the

United States Constitution and under Article 1, Section 19

of the California Constitution, for which just compensa-

tion must be paid.

Between January 4 and January 26, 1995, trial ensued

with respect to the following unresolved issues:

(1) the nature, extent and duration of the

Commission’s regulatory taking of the Lot.

(2) The damages caused to the Buckleys by

the Commission as a consequence of its unlaw-

ful taking of the Lot.

At trial Eliot G. Disner, Esq. appeared for John W.

Buckley. Thomas M. Banks, Esq. appeared for Peggy Ann

Buckley. Terry T. Fujimoto, Esq. and Alan V. Hager, Esq.

appeared for defendant Commission. Documentary evi-

dence was introduced and oral testimony taken on behalf

App. 49

of the respective parties. On January 31, 1995, the Court

personally viewed the Lot with Messrs. Disner, Banks

and Fujimoto in attendance. Thereafter, written argu-

ments were filed with the Court and the case then sub-

mitted for decision. On March 16, 1995, the Court held a

further hearing at which Messrs. Disner, Banks, Fujimoto

and Hager appeared.

The Court, having thus considered all the evidence

and having heard the arguments of counsel and being

now fully advised, finds in this Statement of Decision the

following facts:

1. By its Statement of Decision filed November 18,

1993 in Case Number BC 044 916, this Court made the

following findings which are adopted herein:

(a) In January, 1988, the Buckleys pur-

chased the Lot which consisted of a vacant resi-

dential lot on which they planned to build a

single-family residence.

(b) The Lot is located in a developed sin-

gle-family residential community.

Angeles (“County”) certified that “the [L]ot and

the proposed single-family residence meets the

requirements of Section 30610.1(c) of the Public

Resources Code and is thereby exempt from the

coastal development permit requirements of the

Coastal Act”. On that date, the County issued a

Certificate of Exemption, pursuant to Public

Resources Code §30610.2. The County timely

sent a copy of said Certificate to the Commis-

sion which went unchallenged by the Commis-

sion within the time period required therefor.

App. 50

(d) Between October, 1989 and March,

1991, the County then issued grading and build-

ing permits calling for the grading and construc-

tion of a single-family residence on the Lot.

(e) The Commission has no authority to

limit in any way the power of the “County to

declare, prohibit and abate nuisances (PRC

§30005), including the issuance of any stop work

orders”.

(f) The Commission cannot legally claim

jurisdiction over any portion of the Lot.

2. On August 15, 1989, the Commission first

attempted to exercise its jurisdiction on the Lot. It then

and thereafter issued to the Buckleys written threats and

stop work notices, the intent being to prevent any devel-

opment thereon. The Commission suggested that the

Buckleys obtain a County Certificate of Exemption for the

Lot, which they did. The Commission then never chal-

lenged the issuance of said Certificate. At all pertinent

times, no portion of the Lot could be developed without

grading it in its entirety, in accordance with the grading

plans approved and permitted by the County for the

development of the entire lot.

3. As of at least October 24, 1989 then, the Commis-

sion had no jurisdiction over the Lot, or any part thereof.

Thereafter and to the present, the Commission has con-

tinued to assert its claim of jurisdiction over the Lot and

prevented development thereon. The Commission has

represented to the Court, through its counsel, that it will

continue to claim its jurisdiction until all appeals are

exhausted.

App. 51

4. The assertion of jurisdiction by the Commission

over the Lot constitutes a per se taking thereof. Said

taking did not advance the legitimate interests of the

State of California and was arbitrary and capricious. By

its taking, the Commission also denied to the Buckleys

any economically viable use of the Lot.

5. The Buckleys in the third cause of action to their

Cross-Complaint alleged a conflict in jurisdiction over the

development of the Lot between the County and the

Commission, seeking therein a declaration to determine

which entity has jurisdiction over development of “the

Lot”. The Court now finds that the County has jurisdic-

tion over the development of “the Lot” to the same

degree that it had jurisdiction as of October 24, 1989, the

date said Calvo Certificate of Exemption was issued.

6. The taking of the Lot by the Commission was

permanent.!

7. In March, 1991, a landslide developed on “the

Lot”. On March 26, 1991, the Commission hand delivered

a stop work order referenced “Violation File Number:

V-5-MAL-91-025” to plaintiffs notifying them again that

no grading would be permitted on the property, that a

Coastal Permit had not been issued for the project and

that any additional unpermitted work on the site would

be considered a knowing and intentional violation of the

Coastal Act, which would subject plaintiffs to heavy mon-

etary fines and penalties. On June 11, 1991, the Commis-

sion hand delivered a\second stop work notice with

' The appropriate measurement and elements for a

temporary taking do not apply.

App. 52

respect to the Lot. On November 12, 1991, the Depart-

ment of Public Works for the County ordered plaintiffs to

perform grading on the Lot pursuant to the grading

permit issued by the County to abate the hazardous

condition on the Lot identified in the geotechnical reports

reviewed by the County. On December 5, 1991, the Com-

mission hand delivered a third stop work notice with

respect to the entire Lot. These arbitrary and capricious

acts of the Commission are the proximate cause of the

landslide and egregious erosion which are continuing on

the property, resulting in permanent damage, in addition

to potential liability to the owners of the property adjoin-

ing the landslide. The Court has confirmed that the land-

slide and erosion continues to this day.

8. The Buckleys had intended to sell the Lot in or

about the Fall of 1989. John Buckley testified that after he

and his wife, Peggy Ann, acquired the Lot in January,

1988, he suffered serious health problems and contem-

plated slowing down, such that he was not then willing

to assume the financial burden (that he could have other-

wise borne), for the 15,000 square foot house they had

planned to build there. However, the Buckleys were

unsuccessful at marketing the Lot after the Fall of 1989,

due to the Commission’s unlawful taking of the Lot.

9. The date of valuation is May 1, 1990. Given the

average time it took in the Fall of 1989 to sell unde-

veloped property in Malibu, the Buckleys would reason-

ably have done so at or about May 1, 1990, but for the

Commission’s unlawful taking of the Lot.

10. The Buckleys had a duty to mitigate their losses,

that is attempt to keep the erosion from adjacent

App. 53

undisputed jurisdiction areas, which they did. The Buck-

leys had no obligation to mitigate by applying to the

Commission a second time for a Coastal Development

Permit because it would have been futile to do so and

because the Commission had no jurisdiction in the first

place.

11. For purposes of valuation, there is no “compara-

ble” market for the Lot, as that term is defined in Evi-

dence Code §816. The properties chosen by the testifying

experts provide guidance to the Court in its determina-

tion of value, but none is “sufficiently alike in respect to

character, size, situation, and usability” to the Lot. There

is no evidence that the other properties are sufficiently

similar to the Lot in topography or view. Also, none of

the chosen properties included plans and permits to con-

struct a 15,000 square foot or similar residence. Further,

none of the other properties was shown to be free of the

Commission’s jurisdiction (by the applicability of a Calvo

Certificate of Exemption or otherwise), nor did any have

extensive erosion or landslide damage like the Lot, nor

was any involved in continuing litigation with the Com-

mission (with one exception).

12. The valuation of the Lot on May 1, 1990 is based

on the assumption that the highest and best use of the Lot

then was its development pursuant to the plans and

permits issued by the County of Los Angeles at or about

that time. Those plans and permits would have permitted

the expansion of the usable acreage of the Lot from 1.2 to

at least 1.75 acres and the construction of a 15,000 square

foot residence thereon.

App. 54

13. The valuation of the Lot now is also based on its

highest and best use, which is believed to be its value to a

speculator who will need to remedy the landslide, wait

until the conclusion of this case when the issue of the

Commission's lack of jurisdiction is finally resolved, and

probably start the planning and permitting process anew

to conform to laws and regulations not applicable to the

Lot in 1990.

14. Pursuant to Evidence Code §823, the Court takes

into account, inter alia, the following evidence to deter-

mining valuation that is just and equitable at both times:

(a) other properties compared and con-

trasted to the Lot by the expert witnesses,

including developed properties with the value

of their respective developments extracted;

(b) the estimates of real estate brokers

whose opinions were reported;

risks that a reasonable buyer would now be

likely to assume in light of the pendency of this

litigation;

(d) estimates of the marketability of the

Lot;

(e) the effect of the physical condition of

the Lot;

(f) the effect of the present doubtful status

of the plans and permits for the Lot; and

(g) the opinions of value provided by the

expert witnesses and by owner John Buckley.

App. 55

15. Taking the foregoing factors into account, the

value of the Lot as of May 1, 1990 was $1.2 Million. The

present value of the Lot is $250,000.

16. Since the Buckleys planned to sel! the Lot, rather

than develop and keep it, just compensation here is the

sum of:

(a) the difference in the value of the Lot on

May 1, 1990 and the date of Judgment herein,

during which the Buckleys involuntarily owned

the Lot;

(b) the monies lost from the inability of the

Buckleys to use the proceeds they would have

received upon the sale of their Lot, calculated

per CCP §§[1268.311] and 1268.350;

the Lot after the taking, which would not have

been incurred but for the taking; “

LE Be NMS MON Re ese

(d) the costs incurred dealing with the

Commission after the taking, in a futile attempt

by the Buckleys to win its approval, which costs

also would not have been incurred but for the

taking; and

S Spalert! AUR ar RMN A 5

(e) the reasonable attorney, appraisal and

engineering fees and costs incurred, per CCP

§1036.

17. The damages proximately caused to the Buck-

leys by the unlawful taking of their Lot by the Commis-

sion are as follows:

(a) $950,000, the difference in the Lot’s

value on May 1, 1990 ($1,200,000) and its value

at the time of trial ($250,000);

App. 56

(b) prejudgment interest of $306,698;

of $8,139 thereon; :

(d) expenses and costs related to dealing

with the Commission of $35,992, plus interest of

$6,878 thereon; and

(e) attorneys’, consultant and related fees

and costs in a sum to be determined prior to the

entry of Judgment herein.

18. The Buckleys are entitled to recover the sum of

$1,355,837, excluding attorneys and related fees and

costs.

The legal basis for the Court’s Decision is:

1. Pursuant to PRC §30005, the Commission has no

authority to limit in any way the power of the County to

declare, prohibit and abate nuisances, including the issu-

ance of an stop work orders. Furthermore, the Lot in its

entirety is exempt from the Coastal Development Permit

requirement of the Coastal Act, PRC §30000 et seq. There-

fore, the acts of the Commission constituted a taking

under the Fifth and Fourteenth Amendments of the

United States Constitution and under Article I, Section 19

of the California Constitution.

2. The County determined that the Lot met the stat-

utory requirements for exemption from coastal develop-

ment permit requirements, pursuant to PRC §30610.1(c),

and issued a Certificate of Exemption from the coastal

development permit requirements of the Coastal Act for

said Lot in accordance with PRC §30610.2. The Commis-

sion did not challenge the County-issued Certificate of

Exemption, pursuant to CCP §1085.

App. 57

3. There was a permanent taking of the Lot by the

Commission. Lucas v. South Carolina (1992) __ U.S. __,

112 S.Ct. 2886, San Diego Gas & Electric Company v. City of

San Diego (1981) 450 U.S. 621.

4. The Buckleys had a duty to mitigate their losses,

which they did. The Buckleys are also entitled to recover

the costs they incurred in so doing. Albers v. County of Los

Angeles (1965) 62 Cal.2d 250.

5. The determination of just compensation in a tak-

ings case is fact intensive Florida Rock Industries, Inc. v.

U.S. (Fed. Cir. 1994) 18 F.3d 1560.

6. The amount of damages related to the permanent

taking here is the difference in value of the Lot as of May

1, 1990 and the value as of the time of the litigation.

Kimball Laundry Co. v. United States (1949) 338 U.S. 1,

Lucas, supra. Also included in the damage award are the

holding costs. United States v. General Motors Corp. (1945)

323 U.S. 373. !

7. The Buckleys are entitled to prejudgment inter-

est. Glendale Redevelopment Agency v. Parks, (1993) 18 Cal.

App. 4th 1409. This is calculated by multiplying the dif-

ference in the Lot’s value between May 1, 1990 and this

date by the applicable rate of earnings of the Surplus

Money Investment Fund (CCP §§1268.311 and 1268.350).

App. 58

8. Pursuant to CCP §1036, the Buckleys are entitled

to reimbursement of their attorneys fees and related fees

and costs in this inverse condemnation proceeding.

IT IS SO ORDERED.

Dated: April 6, 1995 /s/ William Huss

WILLIAM HUSS

Judge

App. 59

APPENDIX H

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

CALIFORNIA COASTAL CASE NO.

COMMISSION, S$C015614/

Plaintiff, BC044916

VS. JUDGMENT

JOHN BUCKLEY, PEGGY ANN

BUCKLEY, and DOES 1-50

inclusive,

Defendants.

JOHN W. BUCKLEY, PEGGY (Filed

ANN BUCKLEY, Jul. 12, 1995)

Cross-Complainants,

VS.

CALIFORNIA COASTAL

COMMISSION; COUNTY OF

LOS ANGELES, and DOES 1-50,

inclusive,

Cross-Defendants.

ee eee eee eee eee eee ee ee ee”

On December 20, 1991, Peggy Ann Buckley and John

W. Buckley (“the Buckleys”) filed Case Number BC 044

916. On March 5, 1992, the California Coastal Commission

(“Commission”) filed Case Number SC 015 614. On May

11, 1992, the Buckleys filed a Cross-Complaint in Case

Number SC 015 614 seeking declaratory relief identical to

that sought in Case Number BC 044 916 and, in addition,

sought damages for the claimed unlawful taking of their

property by the Commission. Case Number SC 015 614

App. 60

was transferred to this Court from the West District of the

Los Angeles County Superior Court. Pursuant to Stipula-

tion of counsel on April 5, 1993, Case Number SC 015 614

was consolidated with Case Number BC 044 916, and the

issues tried and judgment entered in Case Number BC

044 916 are now res judicata in Case Number SC 015 614.

The Court thereafter, in Case Number BC 044 916,

found that an undeveloped lot located at 6815 Dume

Drive, Malibu, California (“the Lot”) owned by the Buck-

leys was exempt form the jurisdiction of the Commission

(November 18, 1993 Statement of Decision, incorporated

by reference herein).

The Court thereafter, in Case Number SC 015 614,

summarily adjudicated that the Commission’s assertion

of jurisdiction over the Lot constituted a per se taking of

the Lot under the Fifth and Fourteenth Amendments of

the United States Constitution and under Article I, Sec-

tion 19 of the California Constitution, for which just

compensation must be paid (November 28, 1994 Order

incorporated by reference herein).

Pursuant to this Court’s Order of December 17, 1993,

trial of the remaining issues in Case Number SC 015 614

commenced on January 4, 1995. The issues left to be

resolved at said trial were:

(1) The nature, extent and duration of the

Commission’s regulatory taking of the Lot.

(2) The damages caused to the Buckleys by

the Commission’s unlawful taking of the Lot.

At trial Eliot G. Disner, Esq. appeared for John W.

Buckley. Thomas M. Banks, Esq. appeared for Peggy Ann

App. 61

Buckley. Terry T. Fujimoto, Esq. and Alan V. Hager, Esq.

from the California Department of Justice appeared for

the Commission.

The Court, having considered all of the evidence,

both oral and documentary, having personally viewed the

Buckleys’ property, and after considering the written and

oral arguments of counsel, entered its Statement of Deci-

sion in this matter on April 6, 1995 (which is also incorpo-

rated by reference herein).

The Buckleys’ Motions for Attorney’s Fees and Costs

reasonably incurred in connection with this proceeding,

pursuant to C.C.P. §§1021.5 and 1036, and came on for

hearing on May 26, 1995. The Court having considered all

of the evidence with respect thereto, as well as having

considered the written and oral arguments of counsel,

then ruled that the Buckleys’ fees, costs, disbursements

and expenses actually incurred by them or their attorneys

in this consolidated proceeding have been reasonable and

that they are entitled to reimbursement therefor, speci-

fically as set forth hereinbelow.

In accordance with the foregoing, it is HEREBY

ORDERED, ADJUDGED AND DECREED that:

1. The Commission has no jurisdiction over the Lot.

To the extent that it attempted to exert jurisdiction over

the Lot, or any part of it, it did‘so improperly. The

Commission’s actions have not substantially advanced

any legitimate state interests, instead denied to the Buck-

leys the economically viable use of the Lot. Therefore, the

Commission’s assertion of jurisdiction over the Lot con-

stitutes a per se taking of the Lot under the 5th and 14th

App. 62

Amendments of the United States Constitution and Arti-

cle I, Section 19 of the California Constitution;

2. The County of Los Angeles (“County”) has juris-

diction over the Lot to the same degree that it had juris-

diction as of October 24, 1989, as if the Commission had

never attempted to assert its jurisdiction thereover;

3. The Commission may not interfere with, or limit

in any way, any effort by the County to declare, prohibit

or abate any nuisance on the Lot;

4. The Commission shall pay to the Buckleys just

compensation caused by said taking in the sum of

$1,355,837.00;

5. The Commission shall pay to Eliot G. Disner the

sum of $328,169.50 as and for his reasonable attorney’s

fees;

6. The Commission shall pay to Thomas M. Banks

the sum of $102, 104.16 as and for his reasonable attor-

neys fees;

7. The Commission shall pay to the Buckleys the

sum of $229,262.94 as and for costs, disbursements and

expenses reasonably incurred by them;

8. The Commission shall pay to Eliot G. Disner the

sum of $86,796.43 as and for costs, disbursements and

expenses reasonably incurred by him for John Buckley;

[Text Deleted In Original]

App. 63

10. The Commission shall pay to Peggy Ann Buck-

ley the sum of $85,161.73 as and for costs, disbursements

and expenses reasonably incurred by her.

IT IS SO ORDERED. /s/ William Huss

Dated: JUL 12 1995 Judge of the Superior

Court

App. 64

APPENDIX I

Certification Form for Local Government to Use for

Single-family Development Permits Only in Areas

Designated by the Commission

On October 24, 1989 Peggy Ann Buckley applied for a

permit to construct a single-family residential develop-

ment on an existing vacant (as of January 24, 1980) parcel

located at 6815 Dume Dr., Malibu which is within an area

designated by the California Coastal Commission pur-

suant to Section 30610.1 of the Public Resources Code.

Pursuant to Section 30610.2 of the Public Resources Code

the County of Los Angeles has determined that the con-

struction of this single-family residence meets all of the

following lot criteria:

[X] (1) The construction of the single-family

residence on the lot is not located

between the first public road and the

sea or immediately adjacent to the

inland extent of any beach or of the

mean high tide line where there is no

beach.

(Please attach a copy of Commission’s

8'/2" x 11" quad map showing location

of parcel within designated area.)

[X] (2) (a) The lot is a legal lot pursuant to

' Section 702.1A of Ordinance No.

1494 as of January 1, 1980.

(b) The lot also conforms with the

minimum lot size and lot use des-

ignations of the applicable gen-

eral plan and zoning ordinances.

(Please attach a copy or statement

App. 65

referencing the applicab’ . general

plan.)

[X] (3) The construction of the single-family

residence on the lot is not located

within an area known to the County of

Los Angeles, or designated by any

other public agency, as a geologic haz-

ard area or as a flood-hazard area. OR

although the lot is located within an

area recognized as a geologic hazard

area by __ (or flood hazard area by

__.) it has been determined by County

of Los Angeles to be a safe site for the

construction of a single-family resi-

dence.

[X] (4) The construction of the single-fa

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