Opposition Brief — Kawaoka v. City of Arroyo Grande

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No. 94-99“

In the AUG 16 1994

Supreme Court Of| the o: re cuen

United States _

October Term 1994

KINGO KAWAOKA and TATSUMI KAWAOKA,,

Petitioners,

VS. q

THE CITY OF ARROYO GRANDE; THE CITY :

COUNCIL OF ARROYO GRANDE; MARK M. ;

MILLIS; B’ANN SMITH; GENE MOOTS; A. K. 4

DOUGALL; and DORIS OLSEN, :

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

KATHERINE E. STONE

California State Bar #62919

MYERS, WIDDERS & GIBSON

5425 Everglades Street, Suite 100

Post Office Box 7209

Ventura, CA 93006

Telephone No.: (805) 644-7188

Counsel of Record for Respondents,

CITY OF ARROYO GRANDE, et al.

Westside Law Pubishers « West Hollywood, CA 90069 © (310) 273-2887

aS et wh a aces OE VE perme (ae Y pe ee

aN eT, ee AI eee ey

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QUESTIONS PRESENTED FOR REVIEW

1. Did the City of Arroyo Grande's (“City’’)

general plan, which allows petitioners (“landowners”) to

develop approximately 83 single-family residences on

their 35-acre strawberry farm, provided they apply for a

specific plan under California law and development

approvals, work a taking of the land?

2. Did the lower courts err in rejecting the sub-

stantive due process claim by:

a. Finding the alleged impact of the general

plan insufficient to violate due process standards;

b. Finding no legally cognizable evidence

of improper motivation or discriminatory purpose;

c. Finding that the “as applied” substantive

due process claims were not ripe for judicial review?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...... i

TAR Ge GTO io Sk ne Aw eres li

TABLE OF AUTHORITIES CITED ........... Vv

STATEMENT OF JURISDICTION ............ ]

STATEMENT OF THE FACTS AND THE

Gee vc 65 eee eee eee 2

A. The Legally Relevant Facts - The

Challenged General Plan. ......... 3

B. Disputed Contentions And Facts

Misstated In The Petition For Cer-

OM ee icra wee a eos 8

: Viability of agriculture on

landowners’ land. .......... 9

a Alleged inability to file a -

ee 9

3. Alleged denial of “all eco-

“nomically viable use”. ...... 10

4. Evidence of Racial Preju-

MAS Vek Oe eas eae 11

ma The “Pretextual” Water

I 5 6 ce oo ee alae 12

SUMMARY OF ARGUMENT .............. 13

pe SPT ee eee ee ee ee 14

ili

I.

THE COURT LACKS JURISDICTION OVER

LANDOWNERS' “TAKING” CLAIM

WHICH WAS NEVER RAISED BELOW

AND IS ENTIRELY WITHOUT MER-

er ead naan ib ey 77 er 14

A. Landowners’ “Taking” Claim Is Not

Ripe For Review Because They

Never Sought “Just Compensation”

Through State Courts............ 15

RB. Landowners' Taking Claim Is Also

Utterly Without Merit And Presents

No Novel Or Important Issues Of

RES hia Fo SN Fe see 16

Il.

THE COURTS BELOW CORRECTLY APPLIED

THE LAW IN REJECTING

LANDOWNERS' SUBSTANTIVE DUE

POO NE 5 ov sh whale ecw ee 19

A. The Lower Courts Correctly Ap-

plied Federal Law In Rejecting The

Substantive Due Process Claim. ... 19

B. The Court Below Did Not Fail To

Consider Relevant Factors In Deny-

ing Landowners' Facial Substantive

ee re 21

ee The Lower Courts Properly Found

That Landowners Failed To Produce

Any Genuine Evidence Of Improper

DNS ors os eee oe ere 23

iV

D. The Courts Below Correctly Held

That Landowners' “As Applied”

eR 8 ee re yk

LPT oc eo SPUR ENS cS Peewee 26

SE, 0s -55s 0 40 a ks eee a App. 1

Vv

TABLE OF AUTHORITIES CITED

Cases | Page(s)

Agins v. Tiburon,

447 U.5. Zoo C1O9@) . . occas 14, 19, 22, 24

Armour and Company, Inc. v. Inver Grove Heights,

oF Oe Pe ho SHA ees 22

Austin v. City and County of Honolulu,

840 F.2d 678 (9th Cir. 1988) ........... 16

Barber & Sons v. Jackson County,

869 S.W.2d 113 (Mo. App.W.D. 1993) ... 20

Concrete Pipe and Products of California, Inc. v.

Construction Laborers Pension Trust,

mn Wie cp BA Oe GR ee CEI) 6. ks. 17

Estate of Himelstein v. City of Fort Wayne,

Bo eee, T* ae) 16

First English Evangelical Lutheran Church v.

County of Los Angeles,

Gee Si PE hs 60 5s 8 hw he oe 16

G.M. Engineers & Associates, Inc. v. West

Bloomfield Township,

922 F.ae Dee (oun Ge, 1990)... 5s 16

Gamble v. Eau Claire County,

> F208 aoe RP ee A) ke ee en. 13, 16

Gilbert v. City of Cambridge,

932 F.2d 51 (1st Cir. 1991) ....... 16, 19, 24

Greenbriar, Ltd. v. City of Alabaster,

881 F.2d 1570 (11th Cir. 1989) ...... 13, 16

Guimont v. Clarke,

854 P.2d 1, 121 Wash.2d 586 (1993) ..... 20

vi

Healing v. California Coastal Commission,

22 Cal.App.4th 1158,

27 Cal.Rptr.2d 758 (1994) ............ 16

Huttig v. City of Richmond Heights,

372 S.W.2d 833 (Mo. 1963) ........... 20

Kinzli v. City of Santa Cruz,

818 F.2d 1449 (9th Cir. 1987)

cert. Gam. 494 US. 10435 ........20-. 2, 24

Landmark Land Company v. Buchanan,

874 F.2d 717 (10th Cir. 1989) ...... 2, 19, 24

Nestor Colon Medina & Sucesores, Inc. v. Custudio,

964 F.2d 32 (Ist Cir 1992) ............ 20

Nollan v. California Coastal Commission,

de Rt 17

Pearson v. City of Grand Blanc,

961 F.2d 1211 (6th Cir. 1992) .......... 20

Penn Central Transportation Co. v. New

York City,

a Et) 14-15, 17

Pennell v. City of San Jose,

ee 20

Reserve Ltd. v. Tawn of Longboat Key,

17 F.3d 1374 (11th Cir. 1994) .......... 26

Schnuck v. City of Santa Monica,

935 F.2d 171 (ah Cir. 1991)... ....... 16

Sinaloa Lake Owners Assn. v. Simi Valley,

882 F.2d 1398 (9th Cir. 1989) .......... 16

Southern Pacific Transportation Co. v. City

of Los Angeles,

922 F.2d 498 (9th Cir. 1990) .... 2, 13, 16, 24

Tabb Lakes, Ltd. v. United States,

10 F.3d 796 (Fed. Cir. 1993) ...... 18, 19, 22

Vii

United States v. Riverside Bayview Homes, Inc.,

Pee eras Se Eo 5s co cae 0%.0-4 0 0 19

Williamson County Regional Planning Comm.

v. Hamilton Bank,

473 U.S. 172 (1985)... 1, 2, 7, 13, 14, 15, 24

Statutes

California Government Code

ke ee ee 5, 10

SED nig 6 a wae ae es vn ee 5

In the

Supreme Court of the

United States

October Term 1994

KINGO KAWAOKA and TATSUMI KAWAOKA,,

Petitioners,

VS.

THE CITY OF ARROYO GRANDE; THE CITY

COUNCIL OF ARROYO GRANDE; MARK M.

MILLIS; B’ANN SMITH; GENE MOOTS; A. K.

DOUGALL; and DORIS OLSEN,

Respondents.

OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF JURISDICTION

The Court lacks subject matter jurisdiction over

the “taking” claim. Williamson County Regional Planning

Comm. v. Hamilton Bank, 473 U.S. 172, 194-196, 105

S.Ct. 3108, 87 L.Ed.2d 126 (1985). This claim was never

raised in the proceedings below. Federal courts have no

jurisdiction over a taking claim because the landowners

never sought “just compensation” through available state

2

procedures. The claim is therefore not ripe for federal

court review. Williamson County, 473 U.S. 172, 194-196.

The courts below correctly held that the “as

applied” substantive due process claims are premature

because the landowner never applied for any development

approvals available under the state and local procedures.

17 F.3d at 1232-1233; 796 F.Supp at 1235. The lack of

a “final decision” regarding the application of the general

plan to the property precludes federal review. Williamson

County, 473 U.S. 172, 199-200; Southern Pacific Trans-

portation Co. v. City of Los Angeles, 922 F.2d 498, 507

(9th Cir. 1990); Kinzli v. City of Santa Cruz, 818 F.2d

1449, 1456 (9th Cir. 1987), cert. den. 494 U.S. 1043;

Landmark Land Company v. Buchanan, 874 F.2d 717,

722 (10th Cir. 1989).

Landowners have abandoned their equal protection

claim. The only claim over which the Court has jurisdic-

tion is the claim that the City's general plan on its face

violates substantive due process. 17 F.3d at 1233-1238.

STATEMENT OF THE FACTS AND THE CASE

Despite the-recitation of “facts” (many of them not

appearing anywhere in the record) presented by landown-

ers, this is not a case about reparations for injustices done

Japanese-American citizens during World War II. This is

a case about land use planning, and not a particularly

unusual one at that. An objective account of relevant facts

is stated below. Specific rebuttal to factual misstatements

and distortions by landowners is made in part B of the

statement of facts.

A. The Legally Relevant Facts - The

Challenged General Plan.

The subject property, 35 acres of land within the

boundaries of the City of Arroyo Grande is owned by a

family trust. Kingo Kawaoka (now deceased) farmed the

land, primarily growing strawberries, since first purchas-

ing it in 1954. The land is now leased to a tenant who

continues to grow strawberries on it. Landowners also

lived and raised their family in a home on the property.

Their business affairs are now managed primarily by

Craig Kawaoka, the family's senior son.

In the late 1980's landowners experienced losses

on their farming operations. They blamed the encroach-

ment of urban development surrounding their property,

which they said restricted their ability to use pesticides

and fungicides they believed necessary for the relatively

chemical-intensive business of strawberry production. The

record does not disclose whether other factors, such as

fluctuations in the notoriously fickle strawberry market,

poor management decisions or the historic California

drought occurring during this period may have been the

true cause of their losses. Notwithstanding the alleged

problems, the property was fumigated to prepare for

strawberry planting at least once after this lawsuit was

filed, and agricultural activities continue. Petitioner's

appendix, pp. 66-67.

Feeling that farming was no longer profitable, and

with Kingo Kawaoka approaching his 80's, the family

decided to attempt to sell the land for development. They

found a potential buyer who agreed to pay $6,000,000 if

the land were rezoned for relatively high density (5 units

per acre) single-family residential development. The land

4

was zoned at the time for commercial or light industrial

uses (a classification which also permitted agriculture).

Landowners engaged a consultant to assist them in

obtaining a rezoning. The consultant, Bertram Johnson,

quickly discovered that he could not, in his own words,

“make a deal” with City officials as was his apparent

expectation, for the necessary rezoning and subdivision

approvals through informal back-room negotiations.

Formal development applications were required. Johnson

and landowners, however, also discovered that the City

was in the process of updating its city-wide general plan.

Their efforts then turned towards influencing the general

plan process to achieve their goals.

The lengthy process of updating the City's general

plan began in 1988 and proceeded through environmental

review and innumerable public workshops and hearings

for over almost three years. The draft general plan

presented to the City Council in 1990 stated these basic

objectives for the City:

“It is the fundamental goal of the City of Arroyo

Grande to achieve-a community which:

*

Promotes a rural, small town atmo-

sphere and retains Arroyo Grande's

traditional ties to agriculture.

Recognizes limitations upon the

natural resources necessary to sup-

port urban and rural development,

and lives within those limits.

Accommodates a balance and vari-

ety of urban and rural lifestyles,

providing the best possible quality

of life for all residents.”

Consistent with these overriding objectives, the

draft general plan proposed to designate landowners’

property and three adjoining parcels, which together

constitute 55 acres of active farming within the City, for

continued agricultural use. The general plan also recog-

nized, however, that agricultural uses might not remain

viable on these properties in the long term. Policy 1.5 of

the draft general plan therefore specifically provided that,

upon it being demonstrated that agriculture is no longer

economically viable, the properties could be converted to

residential and commercial uses. 17 F.3d at 1229-1230.

Policy 1.5 also required that, prior to conversion, a

specific plan to guide development of all four properties

be prepared pursuant to California Government Code

Sections 65450-65457. Id. at 1230.

At several of the numerous public hearings held on

the proposed general plan before the City Planning

Commission and City Council, Craig Kawaoka and

Bertram Johnson appeared and objected to the agricultural

designation of landowners’ property. Johnson demanded

that the property instead be immediately designated for

single-family residential development. As evidence that

farming was no longer viable, Johnson presented records

of landowners’ several recent bad economic years and

letters from several sources regarding problems with

continued use of agricultural chemicals on the site. While

the evidence was less than compelling, the City Council

agreed to immediately designate the entire 55 acres for

residential and commercial development. Consistent with

Policy 1.5, “single family residential” development of up

6

to 4.5 units per acre was permitted on the southern

portion of the property. “Rural residential” development

of 1.0 units per acre was permitted on the northern half.

17 F.3d at 1230. The adjoining parcels were given similar

land use designations. The basis for these designations is

fully explained in the declaration of Lloyd Zola, the

City's general plan consultant, filed in the proceedings

below and attached as an appendix to this brief. These

land use designations together permitted development of

approximately 83 units on landowners' 35 acres. Over

Johnson's objections, the specific plan requirement was

retained by the City Council for all four parcels.

Partial success did not satisfy landowners. Their

potential buyer reduced his offer from $6,000,000 to

$3,735,000 and then withdrew it altogether. 17 F.3d at

1231. Landowners filed this suit in August 1990 claiming

that the specific plan requirement denied them due

process and equal protection, and that the City's actions

were racially motivated. Landowners also complained of

an emergency “water moratorium” ordinance enacted by

the City Council at the same time as the general plan

amendment. The ordinance temporarily (initially for 45

days and then for a full year) suspended processing of

new subdivision applications while the City studied its

growing water supply problem. During the litigation

(without, however, amending the complaint) landowners

added objections to the “rural residential” density restric-

tions imposed on part of their property. 17 F.3d at 1236;

796 F.Supp. at 1397. Neither landowners’ original nor

amended complaint alleged any “taking” of property in

violation of the Fifth Amendment's “just compensation

clause”. Landowners' counsel below apparently recog-

7

nized that such claims were barred by Williamson County,

473 U.S. 172, 194-196.

After extensive discovery, the case proceeded to

summary judgment. The City submitted portions of the

administrative record and lengthy declarations from its

planning consultant, Lloyd Zola, and various City repre-

sentatives setting out the basis for its planning policies

and decisions. Landowners submitted opposing evidence

massive in bulk, but largely devoid of content.

As the sole substantive evidence of racial discrimi-

nation, landowners presented declarations asserting that

former City Council member, Doris Olsen (now de-

ceased), had made a racially tinged statement (“Why

should these Japanese people make all that money?”) in

two private conversations to landowners’ real estate

agents near the time of the general plan hearings. One of

the declarants testified in deposition that the statement

was surprising and entirely out of character for Ms.

Olsen. The district court found Olsen's alleged statements

“unsophisticated and insensitive, but also ambiguous at

best as evidence of racial animus. 796 F.Supp at 1330.

The Court of Appeals considered the statements “deplor-

able,” but also clearly insufficient, standing alone, to

support a claim of racism on the part of the entire City

Council. 17 F.3d at 1239. All of landowners’ witnesses

(including Craig Kawaoka) were unanimous that they

personally had never heard or seen any evidence of racial

animus by any City official. Landowners’ only other

“evidence” of racial animus consists of a report by Craig

Kawaoka of an alleged conversation in which another

Japanese American landowner speculated that racism

might have been the reason that the City attempted to

8

impose conditions he found objectionable upon the

development of his property. The courts below found

such evidence unconvincing. 17 F.3d at 1239-1240; 796

F.Supp. at 1331.

As to other evidence of improper motives, land-

owners offered only speculation and opinions as to the

City's alleged anti-development bias, and a single alleged

remark by one city staff person to the effect that water

and sewage constraints were being used as a “pretext” to

limit development. Landowners did not submit any

evidence at all to counter the City's documentation

showing that existing city water supplies were in fact

grossly insufficient to support the levels of development

projected by the general plan. The courts below not only

found landowners' evidence insufficient to raise any

triable issue, but also noted that the City's goal of limiting

development for reasons stated in the general plan is

manifestly a legitimate exercise of the City's police

power. 17 F.3d at 1236-1237; 796 F.Supp. 1325-1326.

B. Disputed Contentions And Facts

Misstated In The Petition For

Certiorari.

Pursuant to Rule 15.1, the City notes the following

factual and legal matters stated in the petition for certiora-

ri which are misstated, unsupported by the record or

subject to substantial dispute. It should be noted that the

City made timely evidentiary objections in the trial court

to much of the “evidence” relied on by landowners. The

district court did not rule on these objections, but instead

found that landowners had failed to raise any triable issue

even if such “evidence” was considered. Landowners had

9

thus already received more than the benefit of a doubt on

their claims.

a Viability of agriculture on

landowners' land.

Landowners repeatedly assert that the economic

infeasibility of continued agricultural use of the land, at

least for growing strawberries, has been proven. Actually,

the record contains no substantive evidence on this point.

The courts below simply assumed that continued agricul-

tural use was economically not feasible, based on the

City's own willingness to immediately redesignate the

land for residential use. Landowners have allegedly

suffered losses in their attempt to continue strawberry

growing in recent years. Whether this is the result of

permanently changed conditions or of other factors, such

as market fluctuations, the loss of Kingo Kawaoka's

personal management expertise, bad weather or other

conditions is open for debate.

2. Alleged inability to file a

specific plan.

Landowners also claim that it was legally impossi-

ble to pursue a specific plan application for approximately

one year after enactment of the City's amended general

plan, because formal regulations for processing of specific

plans were not adopted by the City until May, 1991.

During this period the City's zoning code was comprehen-

sively revised to implement the new general plan. Land-

owners contend that the land had no “economically viable

use” during this period because potential development

was foreclosed by the absence of formal specific plan

procedures. The courts below appear to have accepted

10

landowners' contention on this point for the sake of

argument, but found that such periods of delay, even if

proven, did not render the City's actions unconstitutional

or excuse landowners from actually applying for specific

plan approval once the City's regulations were adopted.

17 F.3d at 1232-1233 and 1235; 796 F.Supp. at 1325.

Contrary to landowners' apparent contentions, the

California statutes which authorize specific plans do not

require local agencies to enact special implementing

regulations before reviewing a proposed specific plan.

The basic requirements for specific plans are contained in

the state statutes themselves. See California Government

Code sections 65450, et seq. Had landowners or some

other party interested in developing the property seriously

proposed a specific plan immediately following adoption

of the revised general plan, such a proposal could have

and would have been given full consideration. As it is,

landowners’ representatives admitted on the record that

the family did not ever seriously intend to propose a

specific plan but merely regarded the specific plan

requirement as an impediment to sale of the property for

the price they desired.

ae Alleged denial of “all eco-

nomically viable use’’.

Landowners repeatedly assert they were denied of

all “economically viable” or “economically beneficial”

use of the property for at least some period of time. In

fact, the record (as already noted above) shows that the

family continued to farm the land, or lease it for farming,

and also to live on the land throughout the litigation. In

addition, the record contains appraisals prepared by

landowners' own appraiser which show that the land

11

retained a market value of $2,400,000 even with the mild

density restrictions and specific plan requirement. 17 F.3d

at 1235-1236. Although landowners complained below

that the property could not be sold at any price, the

evidence showed that landowners actually ceased efforts

to list or advertise the property after the general plan was

enacted, and instructed the family's broker not to accept

any Offers less than $6,000,000. 796 F.Supp. at 1324.

There is no factual basis for any claim of total, or even

severe, loss of use or loss of value of the land.

4. Evidence of Racial Preju-

dice.

The petition refers to “evidence that the respondent

decisionmakers were motivated by ... race prejudice

against persons of Japanese ancestry.” Petition, p. 9. In

fact, the courts below found that only’ one

council-member had made an arguably racially motivated

statement in private. The lower courts correctly concluded

that this provided no basis for attributing racial motives

to the City Council as a whole. In actual fact, landowners’

witnesses were unanimous in testifying in depositions that

none had ever heard, or even heard of, any arguably

racial remark or other evidence of racism by any public

official other than Doris Olsen.’ Landowners’ continued

references to alleged racial motivation, even after they

have abandoned their equal protection claim, can be

1

With respect to Ms. Olsen, a highly respected citizen, social

activist and early female career journalist, the City remains convinced

that Ms. Olsen never made the remarks attributed to her by landowners’

real estate agent. There is substantial evidence in the record that Ms.

Olsen never harbored the slightest animosity toward anyone based on

racial considerations.

12

assessed only as a tasteless emotional gambit, not a

legitimate legal argument. Landowners' further attempt to

characterize the City's policies favoring agriculture as a

“city-dwellers” ploy to “depriv[e] Japanese American

families of the economically beneficial use of their land,”

petition, p. 9, warrants no response.

De The “Pretextual’” Water

Shortage.

Landowners contend that proposed residential

development of their pror-rty would utilize less water

than currently used to irrigate strawberries. From this they

reason that the density restrictions and application of the

temporary “water moratorium” to their parcel were

arbitrary and a mere “pretext to block development.”

Petition, p. 7. The Court of Appeals found this issue at

best a side-show because the property could not be

developed without a specific plan, and no such plan was

ever proposed. The one-year water moratorium had no

actual impact on landowners. 17 F.3d at 1237.

The courts below also correctly noted that the

City's evidence of a pending city-wide water shortage was

in fact entirely unrebutted. 17 F.3d at 1237-1238.

Landowners' irrigation water is pumped from the same

common supply, an overdrafted groundwater basin, that

other landowners in the City also depend upon. As the

Court of Appeals noted, the City could, and indeed

should, rationally take into account the water needs of the

entire City, rather than merely the needs of landowners’

parcel, in conducting its general planning. 17 F.3d 1238.

The density restrictions on landowners’ parcel were also

enacted for additional reasons beyond water conservation,

l.e., concerns over traffic and a desire to preserve some

)

13

semblance of the City's historic character. 17 F.3d at

1236; 796 F.Supp. at 1326.

SUMMARY OF ARGUMENT

The “taking” argument was never raised below.

This Court lacks subject matter jurisdiction over the claim

because landowners never sought “just compensation” for

the alleged taking through available state court proce-

dures. Williamson County, 473 U.S. 172, 194-196;

Gamble v. Eau Claire County, 5 F.3d 285, 286 (7th Cir.

1993); Southern Pacific, 922 F.2d 498, 502-503;

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,

1574-1575 (11th Cir. 1989). The taking claim is also

utterly without merit. The City's general plan permits

substantial use of the property (approximately 83 residen-

tial units). The plan has not interfered with present use

(agriculture) or unreasonably reduced the value of the

property ($2,400,000 with the general plan designation).

The substantive due process claims are also

entirely without merit. The courts below fully considered

landowners’ claims of improper or “pretextual” motives

and excessive economic impacts. The lower courts simply

found no factual basis for attributing false motives to the

City, and found the alleged economic detriment well

within the range normally associated with zoning and

planning restrictions. Landowners simply failed to provide

any substantial evidence to support a substantive due

process claim under the standards applied by federal

courts. The lower courts also correctly found that

landowners’ “as applied” substantive due process claims

were not ripe because landowners had never made any

effort to file applications for development of the property.

-

od

FE

j

14

ARGUMENT

I.

THE COURT LACKS JURISDICTION

OVER LANDOWNERS' “TAKING”

CLAIM WHICH WAS NEVER

RAISED BELOW AND IS ENTIRELY

WITHOUT MERIT.

Grant of certiorari on landowners’ first and main

issue is patently inappropriate for two reasons;

(1) the “takings” issue was not

raised below;

(2) the Court lacks subject matter

jurisdiction over this claim because land-

owners never sought or were denied “just

compensation” in state courts. Williamson

County, 473 U.S. 172, 194-196.

Even were this Court inclined to consider the

“merits,” such as they are, this case involves no important

issues of takings law; it is nothing more than a garden

variety land use planning dispute. The City's general plan

permits approximately 83 residential units on the 35 acre

parcel. Cf. Agins v. Tiburon, 447 U.S. 255, 262 (1980),

100 S.Ct. 2138, 65 L.Ed.2d 106 [open space zoning

limiting development to 1-5 units per 5 acres not a

taking]. If landowners wish to sell, their own appraiser

calculated the market value of the land, as restricted, at

$2,400,000. This is hardly the kind of situation in which

the “justice and fairness” commanded by the Fifth

Amendment dictates that these landowners be rewarded

at public expense. Penn Central Transportation Co. v.

15

New York City, 438 U.S. 104, 124 (1978), 98 S.Ct. 2646,

57 L.Ed.2d 631.

A. Landowners' “Taking” Claim Is

Not Ripe For Review Because

They Never Sought “Just Com-

pensation” Through State Courts.

Landowners acknowledge that their counsel below

decided “not to specifically allege a ‘taking ’,” and that

the courts below “held categorically ‘that this is not a

takings case. ’” Petition for certiorari, pp. 13, 11.” Even

this is a bit of an understatement. Landowners not only

never even pled or argued any taking issue below, but

they expressly acknowledged in their briefs that no taking

claim was being pursued. Neither party attempted to

make any record to support or disprove a taking claim.

Nevertheless, having lost on all other grounds, landown-

ers now assert that their previous omission “does not

presently preclude this Court from determining whether

a ‘taking ’ occurred” and even suggest that the courts

below had a duty to consider the takings issue sua sponte.

Petition, p. 13.

Both the Ninth Circuit and landowners’ former

counsel understood that, since Williamson County,

473 U.S. 172, this Court has held that private landowners

alleging a “taking” may not pursue their claim in federal

courts until they have first exhausted available procedures

2 Somewhat inconsistently, landowners also state that their

previous counsel's election not to raise a taking claim “did not stop the

court below from considering the question, if in somewhat cursory

fashion”. (Petition, p. 13.) In fact, it is clear from the decisions

published below that neither the district court nor the Ninth Circuit con-

sidered any hypothetical taking issue.

16

for recovering “just compensation” is state courts. 473

U.S. 172, 194-196. The rule has since been applied

without question in every circuit. Gamble, 5 F.3d 285,

286; Gilbert v. City of Cambridge, 932 F.2d 51, 63-65

(1st Cir. 1991); Southern Pacific, 922 F.2d 498, 502-503;

Greenbriar, 881 F.2d 1570, 1574-1575; Estate of

Himelstein v. City of Fort Wayne, 898 F.2d 573, 575-576

(7th Cir. 1990); G.M. Engineers & Associates, Inc. v.

West Bloomfield Township, 922 F.2d 328, 331 (6th Cir.

1990); Austin v. City and County of Honolulu, 840 F.2d

678, 680-681 (9th Cir. 1988).

Landowners made no attempt whatsoever to seek

recovery through state courts. Since this Court's decision

in First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987), 107 S.Ct. 2378, 96

L.Ed.2d 250, California courts have provided a constitu-

tionally adequate damages remedy. Schnuck v. City of

Santa Monica, 935 F.2d 171, 173 (9th Cir. 1991); Sinaloa

Lake Owners Assn. v. Simi Valley, 882 F.2d 1398, 1403

(9th Cir. 1989); see Healing v. California Coastal

Commission, 22 Cal.App.4th 1158, 1169, 27 Cal.Rptr.2d

758 (1994).

This Court has no jurisdiction to hear landowners’

belated taking claim.

B. Landowners' Taking Claim Is

Also Utterly Without Merit And

Presents No Novel Or Important

Issues Of Takings Law.

Aside from its jurisdictional problems, landowners'

“taking” claim is frivolous on the merits.

17

Unlike Dolan v. City of Tigard, ___ U.S. ___, 94

Daily Journal D.A.R. 8803, and Noilan v. California

Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97

L.Ed.2d 677 (1987), this case does not involve an

unconstitutional exaction or physical taking of an ease-

ment or other interest in landowners’ property. This is

simply a case of the property being designated in the

City's general plan in a manner which is alleged to reduce

its development potential and impair its market value.

The general plan does not interfere at all with the historic

use of the land (agriculture); it does not prevent more

profitable development. The general plan permits devel-

opment of approximately 83 residential units on the

property. (One residence - landowners' family home —

exists there now.) Landowners’ own appraiser calculated

the value of the 35 acres, even with all challenged City

restrictions in place, as $2,400,000. 17 F.3d at 1235.

Although the record does not disclose it, this value is

almost certainly greater than the value if sold for its

current and historic use, i.e., agriculture, even if it is less

than the $6,000,000 landowners claim the land would be

worth if it were upzoned to suit their personal demands.

No court in modern history has suggested that a

mere reduction in potential profitability of land amounts

to a taking; indeed, even demonstrable reductions in

market value, absent the extreme, do not constitute a

taking. Penn Central, 438 U.S. 104, 131; Concrete Pipe

and Products of California, Inc. v. Construction Laborers

Pension Trust, __ U.S. __, 113 S.Ct. 2264, 2290 (1993).

The City respectfully suggests that this case does not

justify a new or different rule.

18

Landowners’ aliernate argument is that the City at

least temporarily denied them “all economically produc-

tive and beneficial use of their land” for the one-year

period in which (1) the City had not adopted specific

procedures for approving a specific plan on the property;

and (2) the temporary “water moratorium” was in effect.

The courts below found that, even if these measures did

place an additional one-year hurdle in the path of devel-

opment, such delays are not unreasonable. 17 F.3d at

1237; 796 F.Supp. 1325. Landowners remained free to

continue farming, and, contrary to claims in the petition,

actually did so by first planting crops and then leasing the

land for agriculture. The family also continued to occupy

a portion of the land for their residence. The courts below

also found no evidence that landowners were precluded

from selling the land during this period for its appraised

value of $2,400,000. Instead, landowners essentially

imposed their own moratorium by refusing to list or

advertise the property and instructing their broker to

reject any offers below the unrealistic value of

$6,000,000. 17 F.3d at 1231; 796 F.Supp. at 1324. They

made it clear in. the record below that they have no

intention of developing the land; the family's desire is

merely to sell the land to a qualified developer for top

dollar.

The little authority cited by landowners does not

support a temporary taking claim. Tabb Lakes, Lid. v.

United States, 10 F.3d 796 (Fed. Cir. 1993), cited at p. 12

of the petition, represents a fair statement of current law.

As the court in Tabb Lakes noted, as long as a land use

regulatory scheme permits reasonable development with

appropriate permits, there is no taking. Delays in obtain-

19

ing necessary approvals are an inevitable and, absent

extremes, permissible element of every regulatory

scheme. 10 F.3d 796, 800-802, citing Agins, 447 U.S.

255, 263 n. 9 and United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 126-127, 106 S.Ct. 455, 88

L.Ed.2d 419 (1985); see also Gilbert, 932 F.2d 51, 56;

Landmark Land Company, 874 F.2d 717, 721. In Tabb

Lakes, the facts presented were far more aggravated than

here. Development of the plaintiffs parcel was substan-

tially delayed by the assertion of the permitting authority

which was ultimately found to be invalid. 10 F.3d at

802-803. The City in this case did not “take” plaintiff's

land by enacting a temporary moratorium on new subdivi-

sions while its water supply problems were studied, or by

delaying slightly in adopting new regulations governing

specific plans.

II.

THE COURTS BELOW CORRECTLY

APPLIED THE LAW IN REJECTING

LANDOWNERS' SUBSTANTIVE DUE

PROCESS CLAIM

Landowners briefly contend that the courts below

committed a number of legal or moral errors in rejecting

their substantive due process claim. None of these claims

have merit.

A. The Lower Courts Correctly Ap-

plied Federal Law In Rejecting

The Substantive Due Process

Claim.

Landowners do not cite any substantial disagree-

ment between the Ninth Circuit and other circuits over

20

the standard to be applied to substantive due process

claims. Instead they cite state court decisions from a total

of two states (Washington and Missouri) which purport

to apply a form of balancing test in determining whether

local regulatory actions violate substantive due process.

Guimont v. Clarke, 854 P.2d 1, 121 Wash. 586 (1993),

Barber & Sons v. Jackson County, 869 S.W.2d 113, 117

(Mo. App.W.D. 1993); Huttig v. City of Richmond

Heights, 372 S.W.2d 833, 839 (Mo. 1963). The City is

aware of no decision by this Court or any federal circuit

which endorses this approach. Although the circuits apply

differing verbal formulas, they all uphold governmental

actions against substantive due process challenges so long

as the actions substantially advance a legitimate govern-

mental interest, are not arbitrary or capricious, and are not

taken for some impermissible motive, e.g., discriminatory

or retaliatory motives. See, generally, Pearson v. City of

Grand Blanc, 961 F.2d 1211, 1217-1224 (6th Cir. 1992)

[discussing substantive due process cases from all cir-

cuits]; see also Pennell v. City of San Jose, 485 U.S. 1,

11, 108 S.Ct. 849, 857, 99 L.Ed.2d 1 (1988); Nestor

Colon Medina & Sucesores, Inc. v. Custudio, 964 F.2d

32, 45-47 (1st Cir 1992).

It is perhaps worth noting that not even the

erroneous state decisions cited by landowners would

support recovery on the facts of this case. In Barber &

Sons, 869 S.W.2d 113, 117-118, the court found that

reduced land value caused by the county's zoning deci-

sion was a “detriment to which this court does not afford

significant weight.” The land at issue was deemed worth

$5,000 per acre as zoned by the county versus $48,300

per acre if rezoned as desired by the plaintiff, a ninefold

21

differential. In this case the land is worth $2,400,000 as

zoned versus a theoretical value of $6,000,000 if rezoned

as desired by landowners. Thus, even under the indulgent

standards applied in Missouri, landowners plainly would

have a difficult time persuading any court that the City's

actions imposed an excessive private detriment.

B. The Court Below Did Not Fail To

Consider Relevant Factors In

Denying Landowners' Facial Sub-

stantive Due Process Claim.

Landowners’ basic contention on their facial

substantive due process claim is that the courts below

ignored a number of allegedly relevant factors. All of

landowners’ points were thoroughly considered by the

courts below, even those arguably irrelevant under the

controlling standards. The courts below simply concluded

that the claims were not only legally specious but wholly

unsupported by evidence. It is, of course, a proper

function of summary judgment motions to screen out

such claims.

Landowners first fault the lower courts for failing

to consider the “detriment” to themselves in terms of

alleged loss of use of their land and reduced market

value. As discussed previously, there was no loss of use.

They remained free to farm or lease the land, and actually

did so. They were also free to pursue development

permits or sell the land for development, subject only to

the City's planning requirements. With these restrictions

the land retained a value of $2,400,000, or approximately

$68,500 per acre, even according to petitioner's own

appraiser. If this is an unconstitutional economic hardship,

it is One most citizens would be willing to bear even

22

without compensation. Contrary to landowners’ conten-

tions, the lower courts fully considered their economic

claims in determining whether their due process rights

were violated. 17 F.3d at 1235; 796 F.Supp. at

1329-1330. The Court of Appeals expressly noted the

difference between the property's as-is appraised value

($2,400,000) and the $6,000,000 desired by landowners.

17 F.3d at 1235-1236. The court simply concluded that

this is not the type of extreme imposition which might

justify a substantive due process claim.

The courts below also considered landowners’

arguments regarding development delays and “lost use”

of the property caused by the specific plan requirement.

17 F.3d at 1233. Applying well-settled principles, howev-

er, the courts simply found the relatively short-term

delays involved were neither unreasonable nor unconstitu-

tional given the modern realities of planning and develop-

ment and so has every other court which has considered

the issue, including this Court. See, e.g., Agins, 447 US.

255, 263 n. 9; Tabb Lakes, 10 F.3d 796, 800-802 [three-

year delay caused by improper assertion of regulatory

authority]; Armour and Company, Inc. v. Inver Grove

Heights,, 2 F.3d 276, 278 (1993) [alleged reduction of

value and loss of ability to sell property caused by

protracted redevelopment planning activities].

Landowners' situation is no different than that of virtually

any large parcel owner today who would prefer to build

condominiums rather than grow crops. The government

does not act arbitrarily or capriciously or incur liability

under the due process clause because it places reasonable

limits on development, and requires planning and devel-

23

opment to proceed in a rational manner. The Court of

Appeals in this case held no more.

C. ‘The Lower Courts Properly

Found That Landowners Failed

To Produce Any Genuine Evi-

dence Of Improper Motives.

Landowners, although having abandoned their

equal protection claim, contend that the court below erred

by failing to consider the possible “pretextuality of

respondent decisionmakers' state of mind.” Petition, p. 15.

The courts below fully considered landowners’ claim of

pretextual motives, and found it entirely devoid of

evidentiary support. Landowners attempt to recharacterize

the record as containing actual evidence of improper City

motives. It does not. The lower courts found the City's

stated reasons for the general plan amendments and water

moratorium were fully supported by facts and reason set

forth in the record in lengthy declarations and the admin-

istrative record of the City's actions. There is no counter-

vailing substantive evidence suggesting that a majority of

the City Council members acted for any improper reason.

Having failed to produce anything other than suspicion

and speculation regarding alleged ulterior motives,

landowners could not survive summary judgment.

D. The Courts Below Correctly Held

That Landowners' “As Applied”

Claim Was Not Ripe.

It is less than clear what difference it would have

made even had the lower courts addressed landowners’

“as applied” substantive due process claim on its merits.

In any case, landowners do not appear to dispute that any

24

“as applied” substantive due process claim must meet the

final decision requirements of Williamson County, 473

U.S. 172, 199-200; see also Southern Pacific, 922 F.2d

498, 507; Landmark Land Company, 874 F.2d 717, 722;

Kinzli, 818 F.2d 1449, 1456.

In an effort to get around this particular hurdle,

landowners simply recharacterize the issue and complete-

ly misstate the record. The courts below, having found

the City's specific plan requirement and water moratorium

facially valid, held that landowners must actually apply

for specific plan approval before making an as applied

attack on these regulations. 17 F.3d at 1231-1233.

Landowners claimed below, and again in this Court, that

it would have been futile to apply for specific plan

approval because specific regulations for processing

specific plan applications were not adopted until May

1991, approximately one year after the general plan was

adopted. This argument misses the point.

First, landowners do not deny that an application

could have been filed well before judgment was entered

in this action, rendering further litigation potentially

unnecessary. 17 F.3d at 1232. Second, landowners

misunderstand the “futility” exception to the ripeness

doctrine. The fact that an owner is required to wait before

filing an application, at least where the period of delay is

not unreasonable, does not mean that application will be

futile. This Court and other courts have long recognized

that some degree of delay or inconvenience adheres in

every planning process and is simply one of the incidental

burdens which must be born for the privilege of living in

a modern society. Agins, 447 U.S. 255, 263 n. 9; Gilbert,

932 F.2d 51, 56; Landmark Land Company, 874 F.2d

25

717, 721. Landowners' claim is particularly hollow in this

case; they admitted below that the family has no intention

of submitting and following through on a specific plan

application themselves; their real objection is merely that

the specific plan requirement allegedly adversely affects

the property's value.

Landowners’ argument is buttressed with several

gross distortions of fact. For example, they allege that

“There is no question that for years prior to respondents’

adoption of procedures by which landowners could

supposedly apply for ‘specific plans ’ enactment by the

City Council, the Kawaokas had notified respondents of

the current non-viability of agricultural uses on their

property.” Petition, p. 16. The “specific plan” requirement

complained of did not even exist until May 1990 when

the general plan was adopted. It was never previously

asserted and there is no evidence that landowners ever

advised the City that agriculture was (allegedly) no longer

viable on their land before the general plan hearings. In

fact, landowners or their lessees were still growing

strawberries on the land when the case was heard in the

Court of Appeals.

Landowners now baldly assert that a “meaningful

application” was made for specific plan approval in the

form of “in person contact between the Kawaokas and

their representatives on the one hand, and various city

representatives on the other.” Petition, p. 17. This passage

apparently refers to one of the few occasions in which

landowners' “consultant”, Bertram Johnson, made infor-

mal inquiries by telephone or at the City Planning

Department counter as to how application could be made

for a specific plan. That the courts below did not find

26

these superficial inquiries to be a “me.ningful applica-

tion” should come as little surprise. See Reserve Ltd. v.

Town of Longboat Key, 17 F.3d 1374, 1381-1382 (11th

Cir. 1994) [informal efforts to have permit restored

insufficient to satisfy final decision ripeness require-

ments].

CONCLUSION

This case raises no significant issue for Supreme

Court review. The petition for certiorari should be denied.

Respectfully submitted,

KATHERINE E. STONE

MYERS, WIDDERS & GIBSON

Counsel of Record for Respondents,

CITY OF ARROYO GRANDE, et al.

APPENDIX

App. 1

APPENDIX

DECLARATION OF LLOYD B. ZOLA

1. lam a citizen of the United States and the State

of California. I am over the age of 18 years and if called

upon, could and would competently testify to the follow-

ing.

QUALIFICATIONS

2. I am the founder and president of a professional

planning consulting firm called Planning Network and

have been so for over eight (8) years. I have been hired

by the City of Arroyo Grande (“City”) as an expert

witness in the case of Kingo Kawaoka v. City of Arroyo

Grande. I received my B.A. in Urban Studies in 1974

and did graduate studies in Public Administration. As

president and founder of Planning Network, I employ and

supervise over twenty (20) employees. I directly prepare

planning studies and reports, including general plans,

specific plans and environmental impact reports (“EIR”s).

I am responsible for overall project strategy and quality

control, design and implementation of public participation

programs and making presentations before administrative

and legislative bodies.

3. Prior to founding my own consulting firm, I

was Director of Planning for L.D. King Engineering for

three (3) years. I was responsible for preparing specific

plans and EIRs. I spent the previous five (5) years as a

planner for public agencies including Riverside County,

San Joaquin County and the City of Concord. I prepared

several General Plan elements, and reviewed and pro-

posed comments on legislation on preserving agricultural

land.

| E

iy Ke

App. 2

4. I have received project awards for preparing

The Moreno Valley General Plan, The Foothill Boulevard

Specific Plan and The East Chino Specific Plan.

5. I was also an expert witness on behalf of the

Quechan Tribe of the Fort Yuma Indian Reservation in a

case relating to adjudicating water rights along the

Colorado River. The case included a determination of

which portions reservation could be commercially farmed.

A true and correct copy of my curriculum vitae is

attached as Exhibit A.

THE CITY OF ARROYO GRANDE

6. The City of Arroyo Grande (“City”) is located

on the central coast southwest of the City of San Luis

Obispo. Its population in 1988 was approximately

13,700. The entire City is 5.45 square miles. (Exhibit 3,

Existing Setting Report, p. 102.) Arroyo Grande was

historically a farming town. In 1988 there existed

approximately 700 acres of land designated agriculture

within the city limits. (Exhibit 5, EIR, p. 164.) Agricul-

tural production includes row crops such as strawberries

and vegetable farming. In 1988, approximately 72 acres

within the City were farmed for strawberries. There are

still approximately 72 acres cultivated with strawberries.

THE GENERAL PLAN UPDATE

Overview of General Planning

7. Under California law, every city is required to

have a General Plan which serves as a “Constitution” for

land use within the city. (Government Code § 65300.)

The General Plan guides the long term physical develop-

ment of the City and is comprised of goals, policies and

objectives, and includes a land use diagram designating

population density and building intensity. (Government

Code § 65302.) There are seven (7) mandatory elements

App. 3

of a General Plan (land use, housing, conservation, open

space, circulation, noise and safety) anc several optional

elements. (Government Code § 65302.) Cities are

required to update a General Plan as necessary to ensure

the plan adequately addresses future land use issues. The

housing element must be updated every five (5) years —

Government Code § 65588.

Overview Of Arroyo Grande’s General

Plan Update Process

8. I was retained by the City in early 1988 to

update three (3) elements of its General Plan; land use,

conservation and open space. At the same time, City

staff was directed to update the housing element. (Col-

lectively these actions were known as “General Plan

update”.) The City’s General Plan update process took

place over a two (2) year period, and included the

following steps:

a. Evaluating existing land uses, resource

constraints and public concerns resulting in a report

entitled “Existing Setting and Community Issues Report.”

b. Drafting three (3) land use alternative

scenarios resulting in a report entitled “Land Use Alterna-

tives and Holding Capacity Report.”

c. Drafting the land use, housing, open

space and conservation elements of the General Plan.

d. Preparing an Environmental Impact

Report (“EIR”) on the General Plan update. (Public

Resources Code § 21000 et seq.)

e. Revising the draft General Plan update

per Planning Commission and City Council direction and

public input.

App. 4

Public Participation In The Arroyo Grande

General Plan Update

9. Public participation in the General Plan update

was extensive. The City notified over 5,100 people of

the General Plan update, conducted an informal commu-

nity opinion survey and held thirteen (13) workshops and

public hearings before the Planning Commission and City

Council over a two (2) year period. Early in the General

Plan program, community leaders were interviewed by

myself and my assistant, Mr. Kent Norton of Planning

Network. Interviews consisted of one-on-one sessions

with City Council members including Councilwoman

Doris Olsen, one Planning Commission member, and

members of the public selected by the City. I personally

interviewed the Mayor and all councilmembers, including

Doris Olsen. In none of the interviews were any dispar-

aging statements against any racial group made. All of

those interviewed emphasized agriculture as a major

component of the City’s identity, and indicated that,

although it might be difficult, agricultural lands should be

preserved.

10. In addition to community leader interviews, I

conducted two (2), one-evening town hall meetings.

During these meetings, local residents emphasized their

desire to retain the City’s rural, small town character and

also requested that agricultural lands within and adjacent

to the City be preserved. As a follow-up to community

leader interviews and town hall meetings, a “Land Use

Alternatives and Holding Capacity Report” (“Alternatives

Report”) was prepared by Planning Network under my

direction. (Exhibit 4.) The report was completed on

May 17, 1989. The purpose of the report was to identify

the major policy choices which the City’s updated

General Plan would address.

App. 5

11. I conducted two (2) joint workshops for the

City Council and members of the City boards and

commissions on June 19, 1989 and November 20, 1989.

Retaining the City’s rural small town character and

preserving agricultural lands were identified in these

workshops as important objectives for the General Pian.

The workshops also resulted in a consensus to manage

future population growth in a manner consistent with

available resources, particularly water.

12. In other communities, I have found “agri-

cultural preservation” to sometimes be related to a desire

to slow or stop urban development rather than a desire to

really preserve agriculture. In Arroyo Grande, I found

this generalization to be untrue; I found that local citizens

wanted to see agriculture operations continue.

13. Ten (10) public hearings were held: Five (5)

before the Planning Commission on 1/2/90, 1/30/90,

2/6/90, 2/26/90, and 3/19/90; and five (5) before the City

Council on 4/9/90, 4/24/90, 4/25/90, 4/30/90, and 5/22/90.

I was present at the public hearings, I presented General

Plan materials, answered questions and considered all

testimony. Exhibits 7 and 8 are certified copies of the

minutes of these meetings.

AGRICULTURAL LANDS AND THE GENERAL

PLAN UPDATE

Overview

14. Agriculture has been the central historical and

economic activity in Arroyo Grande since the 1840’s.

The nature of this resource is important when analyzing

how growth and change will affect the City. (See Exhibit

3, Existing Setting Report, p. 102.) The City’s previous

General Plan did not contain sufficient policy direction to

adequately preserve agricultural lands. (Exhibit 5, EIR,

p. 169,44.) By 1988 the City had already lost over half

App. 6

of its original approximate 725 acres of prime agricultural

soils to nonagricultural uses (Exhibit 3, Existing Setting

Report, pp. 103, 104 and 106; Exhibit 5, EIR, p. 165,

{ 1(2)). Preservation of agriculture emerged during the

general plan update as one of the strongest community

objectives. (Exhibit 3, Existing Setting Report, p. 108.)

15. The Alternatives Report identified three (3)

alternatives for preserving existing agricultural land.

a. Preserve all existing agricultural land,

whether or not they contain prime agricultural soils (as

defined by the U.S. Soil Conservation Service).

b. Preserve agricultural lands with prime

soils for agricultural use (399 acres), and allow non-prime

lands to convert to low density housing.

c. Preserve certain prime agricultural lands

(330 acres) by establishing selected roadways as perma-

nent barriers to further development (Exhibit 4, Alterna-

tives Report, pp. 123, 126, 129.)

16. The consensus among Planning Commission

and City Council as expressed at their June 19, 1989 joint

workshop was that agricultural lands within and adjacent

to the City should be preserved to the maximum extent

possible.

The Subject Property: Fifty-five (55) Acres

of Strawberry Fields

17. It is my understanding that the property at

issue in this lawsuit is fifty-five (55) acres of strawberry

fields located on the southern border of the City (“subject

property”). It is also my understanding that thirty-five

(35) of these acres are held in trust for the plaintiffs, the

Kawaokas (“plaintiff's property”). Plaintiffs’ property is

cultivated for strawberries and contains residences for the

Kawaokas. The remaining three (3) properties are

App. 7

cultivated for strawberries and contain commercial fruit

stands. It is also my understanding that these three (3)

remaining properties are owned by the Matsomotos,

Tomas and Youngs. (See Exhibit 18, deposition excerpts

of Craig Kawaoka, p. 458, line 15.)

18. At the joint public workshops, the Planning

Commission and City Council leaned towards preserving

the agricultural use of the subject property. They also

expressed concern regarding the future viability of

agriculture on the subject property. In response to these

concerns, I proposed that the City add a policy (later to

become Land Use Element (“LUE”) Policy 1.5) which

would permit the future conversion of the subject proper-

ty to residential and commercial uses upon a showing that

agriculture was no longer economically viable.

19. My understanding of the consensus reached by

Planning Commission and City Council members at their

June 19, 1989 workshop is:

a. All agricultural lands within and adjacent

to the City, including the fifty-five (55) acres of subject

property should be designated as Agriculture on the

General Plan land use diagram.

b. It would be desirable to retain the

existing agricultural uses on subject property as long as

they were viable.

c. A determination of viability would be

made at such time as a proposal to develop the subject

property was brought forward to the City. This under-

standing is reflected in the minutes of the June 19, 1989

workshop, Exhibit 6.

20. After the June 19, 1989 workshop, Planning

Network, under my direction, prepared the Land Use

Element (“LUE”) and Open Space and Conservation

App. 8

Element. The first draft of the General Plan designated

the subject property as “Agriculture” on the land use

diagram and included LUE Policy 1.5 which provide that,

‘At such time as they are no longer

economically viable, permit the conversion

of the existing strawberry fields located

south of Grand Avenue near the western

city limits to urban use subject to prepara-

tion of a specific plan as set forth in Gov-

ernment Code Sections 65450-65457.”

21. Other agricultural lands within the city were

preserved and protected by requiring that all prime soils

be retained as agriculture. (Exhibit 2, General Plan-LUE

Policies 12, LUE, p. 14; see also policy 1.2, p. 14.)

Plaintiffs’ Property

22. During the public hearings before the Planning

Commission, plaintiffs or their representatives indicated

they did not want their thirty-five (35) acres designated

agriculture on the land use diagram. The Planning

Commission recommended to the City Council that the

agricultural designation be adopted for the plaintiffs’

property, noting that proposed LUE Policy 1.5 would

permit conversion to residential uses upon a showing of

economic infeasibility and preparation of a specific plan.

23. At public hearings before the City Council,

plaintiffs or their representatives claimed strawberry

farming was not viable at the present time and requested

a residential designation for the property on the land use

diagram. In response to plaintiffs’ request, the City

Council revised the General Plan diagram to designate

residential use (with a small amount of commercial use

along Grand Avenue) for the fifty-five (55) acres of

strawberry fields which include the Kawaoka property.

App. 9

The City retained the requirement that a specific plan be

prepared before residential development could occur.

City Council’s actions are reflected in the minutes of

April 25, 1990. (Exhibit 8.)

SPECIFIC PLAN AS A PLANNING TOOL

24. A specific plan is a recognized and appropriate

planning method to facilitate conversion of existing

agricultural uses to other uses. Specific plans are a

traditional planning tool, authorized by the State legisla-

ture over twenty-five (25) years ago (Government Code

§ 65450, et seqg.). Specific plans are typically used to

master plan areas with multiple parcels in separate

ownership that pose common planning issues. (See State

General Plan Guidelines, Exhibit 13, p. 373.) Specific

plans specify the distribution, location and extent of land

uses and essential infrastructure such as water, sewage,

roads, waste disposal. (See Government Code § 65451.)

They avoid redundant planning expenses, avoid duplica-

tion of infrastructure costs and allow for shortened

environmental review. A specific plan may be prepared

by either the private or public sector. (Government Code

§ 65450; Exhibit 13, General Plan Guidelines, p. 373.)

In my experience the vast majority of specific plans are

prepared by the property owners and submitted to the city

for review and adoption. A description of specific plans

is set forth in the General Plan Guidelines, published by

the State Office of Planning and Research.

25. As early in the General Plan update process as

May, 1989, in the Alternatives Report, I, along with City

staff, recommended that a specific plan be prepared when

the subject property converted from agriculture. In my

opinion a specific plan requirement was an important

planning requirement for the subject property for the

following reasons:

App. 10

a. All of these properties are planted in

strawberries and share similar difficulties in continuing

agriculture use. Developing any one of the parcels in

isolation could increase the problems facing the remaining

owners.

b. The fifty-five (55) acre subject property

is one of the largest undeveloped sites remaining in the

City. There is a need to plan roads, coordinate sewage

disposal, roadways, easements, drainage, utility services

and to distribute available water supplies and sewage

capacity.

c. A specific plan would also address the

unique problem facing the entire site, that of potential

pesticide residues in the soil, resulting om a long history

of pesticide and fumigant use.

d. The specific plan would provide the

owners of the strawberry fields with sufficient flexibility

to determine the optimal land use mix and site design at

the time they were ready to convert the property from

agricultural use.

26. Based upon my experience and my two (2)

years of work on the Arroyo Grande General Plan update,

I am of the opinion that the specific plan requirement for

conversion of the strawberry fields to non-agricultural

uses is appropriate; this requirement is a responsible

planning strategy to facilitate conversion of the strawberry

fields to a mix of residential and limited commercial uses.

RESIDENTIAL DENSITY FOR PLAINTIFFS’

PROPERTY

27. Plaintiffs’ property was designated heavy com-

mercial/light industrial under the 1987 General Plan, but

being cultivated for strawberries at the time of the

General Plan update.

App. 11

28. In keeping with plaintiffs’ request for a

residential designation, the City Council adopted a mixed

residential designation for the plaintiffs’ property. The

General Plan update permits residential development on

the subject property at a density of 4.5 dwelling units per

acre on half of the property and one dwelling unit per

acre on the other half of the property. Exhibit 1 is a

copy of the General Plan land use diagram showing these

designations.

29. I recommended this density because of the

limitations which the City faced regarding long-term

water availability. Sufficient long-term water supply was

not available to the City to support buildout of the

General Plan at a higher density. I believe that this

density is compatible with surrounding land use densities.

30. In addition, I recommended the density which

was ultimately applied to the Kawaoka property as a

compromise between the density of surrounding resi-

dential lands, and the policy direction given by Planning

Commission and City Council members at their June 19,

1990 workshop as to the appropriate density for existing

non-prime agricultural lands (one dwelling unit per one

and one-half acres). Thus, although the density assigned

to the Kawaoka property was less than that of surround-

ing developed lands, it was greater than the density

assigned by the updated General Plan land use map to

other existing, non-prime agricultural lands.

31. My recommendation for a mix of residential

densities was based on “averaging out” the intensity of

use within the fifty-five (55) acre strawberry fields,

considering the General Commercial designation assigned

to the lands adjacent to Grand Avenue. In this manner,

the overall intensity, projected water consumption, and

App. 12

projected traffic generation of the fifty-five (55) acres

would be equivalent to that of surrounding lands.

32. In recommending the density ultimately as-

signed to the fifty-five (55) acres of strawberry fields, I

believed that the proposed density would be compatible

with surrounding land use densities.

33. The mixed residential density supports several

additional General Plan policies and objectives including:

Objective 2.0. Encourage residential

densities, intensities, and patterns that are consistent with

a rural lifestyle and image and which provide an appro-

priate range of housing consistent with the Arroyo

Grande Housing Element. (Exhibit 2, General Plan-LUE

p. 16.)

Policy 2.3. Broaden the range of, and

encourage innovation in, available housing types, provide

housing for those not desiring dwellings on individual

parcels, those desiring a mobilehome lifestyle, as well as

for those desiring amenities not generally found in small

town subdivisions, such as common open space and

recreational areas. (Exhibit 2, General Plan-LUE p. 17.)

Policy 8.1. Limit the intensity of land use

and area population to that which can be supported by the

area's resource base, as well as circulation and infrastruc-

ture systems. (Exhibit 2, General Plan-LUE, p. 38.)

WATER CONSTRAINTS

34. As part of my duties in preparing the General

Plan update and EIR, I reviewed reports and studies on

the City’s water supply. I concluded that the City did not

have enough water available to accommodate maximum

buildout under the then existing General Plan.

App. 13

35. The City’s total annual water supply was

estimated under the General Plan update as follows:

1,202 acre feet of groundwater from the local

groundwater basin (based upon an informal

agreement with surrounding communities

and districts)

2,290 acre feet from Lopez Lake (based upon a

formal adjudication)

3,492 Total Acre Feet

(See Exhibit 3, Existing Setting Report, p. 111; See

Exhibit 5, EIR, p. 166-167.)

36. Based upon an average daily per capita water

consumption of 190 gallons, the EIR concluded the City’s

water supplies could only support a population of 16,800.

The EIR concluded the City would already have a

population of approximately 16,500 by April 1989 if all

homes were occupied (including approved units).

(Exhibit 5, EIR, pp. 166-167.) The previous General Plan

had planned for a maximum population of 24,000.

(Exhibit 5, EIR, p. 166.)

37. It was clear that the General Plan update

would need to reflect a reduction in population growth.

I recommended overall density reductions throughout the

City as a means of addressing the water shortage.

38. The resulting General Plan update contains a

level of growth that is nineteen percent (19%) less than

the previous General Plan. (Exhibit 5, EIR, p. 167.)

Even so, projected buildout of approximately 19,500

population is estimated to exceed the available water

supply by approximately 656 acre feet a year. (Exhibit

App. 14

5, EIR pp. 166-167.) The City adopted mitigation

measures and policies to minimize the projected water

shortage as part of the General Plan update. (Exhibit 5,

EIR, p. 168.) The City Council also adopted Interim

Urgency Ordinance No. 421 C.S., temporarily suspending

certain development applications including lot splits

and/or second units. (Exhibit 12, Ordinance 421 C.S.;

Exhibit 6, minutes of City Council hearing of May 22,

1990.) Ordinance No. 421 C.S. states the potential

existed that the City water supply would be exhausted

and overtaxed and there existed a current, immediate and

continuing threat to the public health, safety or welfare if

land divisions, rezoning and second units continued to be

approved. Ordinance No. 421 C.S. was extended by

Ordinance No. 423 C.S. (Exhibit 12), which expired in

May, 1991.

39. Based on my experience and expertise and

specifically my two (2) years work on the General Plan

for the City of Arroyo Grande, it is my opinion that the

General Plan land use, open space and conservation

elements prepared under my direction fully comply with

State law and are consistent with and reflect community

desires that were expressed during the General Plan

update including the need to preserve agricultural lands to

the maximum extent feasible and to manage future

growth in keeping with resource constraints.

I declare under penalty of perjury that the forego-

ing is true and correct and is of my own personal knowl-

edge, that if called to testify I could and would compe-

tently testify to the same, and that this declaration, was

App. 15

executed this day of November 1991, at

, California.

Original signed

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: I am and was at all times

herein mentioned, a citizen of the United States and a

resident of the County of Los Angeles, over the age of

eighteen (18) years and not a party to the within action or

proceeding; that my business address is 9105 Sunset

Boulevard, West Hollywood, California 90069; that on

August 16, 1994, I served the within Opposition To

Petition For Writ of Certiorari in said action or proceed-

ing by depositing true copies thereof, enclosed in a sealed

envelope with postage thereon fully prepaid, in the United

States mail at Los Angeles, California, addressed as

follows:

Clerk, United States Supreme Court Gerald Masahiro Sato

One First Street, N.E. Sato & Henry

Washington, D.C. 20543 2659 Townsgate Road, Suite 101

(By Express Mail: Original Westlake Village, CA 91361

and 40 Copies) (805) 495-5533

Attorneys for Petitioner,

Clerk, U.S. Court of Appeals Tatsumi Kawaoka

Ninth Judicial Circuit

121 Spear Street

San Francisco, CA 94119-3939

I declare under penalty of perjury that the forego-

ing is true and correct. Executed on August 16, 1994,

Los Angeles, California.

Betty J. Malloy

(Original Signed)