Opposition Brief — Daniel v. Santa Barbara County

Supreme Court Uns

FILED

No. 02-107 |

j_ SEP 16 20”

i

OFFICE OF Tir

In The LE CLR

Supreme Court of the Gnited States

4

ANN DANIEL and LEONARD HILL,

Petitioners,

V.

COUNTY OF SANTA BARBARA,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF IN OPPOSITION

¢

STEPHEN SHANE STARK, County Counsel*

ALAN L. SELTZER, Chief Deputy

WILLIAM M. DILLON, Senior Deputy

105 East Anapamu Street, Suite 201

Santa Barbara, California 93101

(805) 568-2950

Attorneys for the County of Santa Barbara

September 2002 *Counsel of Record

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a landowner may challenge a county’s

acceptance of an irrevocable offer of dedication as an

unconstitutional taking in federal court, where the land-

owner did not first seek compensation under state law

procedures and where, in any event, the landowner and

his predecessor did not timely challenge the permit condi-

tion requiring the offer of dedication but instead voluntar-

ily complied with the permit condition and accepted the

benefits of the permit?

li

TABLE OF CONTENTS

Page

ER k IEG EMIS EME nso ccecsvsnneesdihinevacenanatassbiens i

Fr A Tr EEE titicidchkcinionndennnaeaaeae 1

fe te i i igh gy. | oo) |.” A eeneenennnnses cin 3

ETE tiiktins scionnnseriienaiaaeelan 7

I. THE DANIELS’ TAKINGS CLAIM DOES

NOT MEET THE SECOND PRONG OF THE

FEDERAL RIPENESS REQUIREMENT OF

WEL PRON COPIIVE © ov cssicennsstexsnninesassnsvens 7

II. THE PETITION SHOULD BE DENIED

BECAUSE IT IS BARRED BY THE STATUTE

OF LIMITATIONS AND DOCTRINES OF RES

JUDICATA AND WAIVER...................:ccceeeeeeees 9

A. The Claim Is Barred By the Statute of

Limitations and Res Judicata.................. 9

B. The Claim Is Barred By Waiver............... 11

Ill. THE DANIELS’ MANUFACTURED TAKINGS

CLAIM IS BASED ON A MISTAKEN VIEW OF

CALIFORNIA REAL PROPERTY LAW.............. 12

A. The Daniels’ Taking Theory Does Not

Present An Important Issue of Federal

RN i icaicccuicscavestiahtalhe tatentcinideiddniamaiaaamba: 12

B. The Daniels’ Takings Claim Is Meritless. 14

IV. THE DANIELS PRESENT NO IMPORTANT

Be OF BPN 6sesccssccnnnsvsedessnsseseeeses 17

io | nae ence ne ii Gd ae 19

cnecelieeitideemuieameaita |

2) SNR TED STEM,

ili

TABLE OF AUTHORITIES

Page

CASES

California Coastal Comm’n v. Superior Court

(“Ham”), 210 Cal.App.3d 1488, 258 Cal.Rptr. 567

RATT TRE te passim

City of Santee v. Superior Court, 228 Cal.App.3d

7138, 279 Cal. Rotr. 22 (Cal. App. 1991) ........................... 11

County of Imperial v. McDougal, 19 Cal.3d 505, 564

P.2d 14, 188 Cal.Rptr. 472, (Cal.), app. dismissed,

rc sncn cory casociorvevdnnvassedeensssvvbsevecesses 11

County of San Diego v. Miller, 13 Cal.3d 684, 119

Cee. Wd, Oe Fk LBP (197D).......00.00.0c0sserccesvensesens 17

Daniel v. County of Santa Barbara, 288 F.3d 375

oa cdo bucsniesciwusboouvabiee 4,7

Dodd v. Hood River County, 59 F.3d 852 (9th Cir.

1995), cert. denied, 525 U.S. 923 (1998) ...................000008 8

Dolan v. City of Tigard, 512 U.S. 374, 129 L. Ed. 2d

ee eG EE ccchsvcrnesessvevnssesievenessenssvoresoes 13

First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987) .............ccceeeeeeeeees 5

Grupe v. California Coastal Comm'n 166 Cal.App.3d

148, 212 Cal.Rptr. 578 (Cal.App. 1985)... 16

Hensler v. City of Glendale, 8 Cal.4th 1, 32 Cal.Rptr.2d

244, 876 P.2d 1043 (Cal. 1994).................c0cceeeeeeee 9, 13, 17

Jama Construction v. City of Los Angeles, 938 F.2d

1045 (9th Cir. 1991), cert. denied, 503 U.S. 919

adidas nchbnasnicdenueciietkiakadcnseiosovises 8

Lai v. City & County of Honolulu, 841 F.2d 301 (9th

Cir. 1988), cert. denied, 488 U.S. 994 (1988) .............. 8

iV

TABLE OF AUTHORITIES — Continued

Page

Leroy Land Development Co. v. Tahoe Regional

Planning Agency, 939 F.3d 696 (9th Cir. 1991) ...2, 11, 18

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

I is tinsch sia ssbeliitetibaniicctn teiceiaguedaaedenkinemcctaitebaiaie 16

Macri v. King County, 126 F.3d 1125 (9th Cir. 1997),

cert. denied, 522 U.S. 1153 (1998)..............0ccscccccsssesseoesees 8

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

Be BPN bcs sas Giucetsteiccuamaeecsgeuuaaeuenouaces 6, 13, 14, 16

Ojavan Investors v. California Coastal Comm'n, 26

Cal.App.4th 516, 32 Cal.Rptr. 103 (Cal.App. 1994),

cert. denied, 513 U.S. 1148 (1995)..........0..0.... 2,10, 11,15

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)............ 6, 18

Palo Alto Town & Country Village, Inc. v. BBTC

Co., 11 Cal.3d 494, 113 Cal.Rptr. 705 (Cal. 1974) ......... 15

Patrick Media Group, Inc. v. California Coastal

Comm'n, 9 Cal.App.4th 592, 11 Cal.Rptr.2d 824

SRI, SIE cesids cian once ahaaimeeala ake ee oki caidas 10, 13

Pfeiffer v. City of La Mesa, 69 Cal.App.3d 74, 137

mb ete. BG CRE te, 2B) vss sicssscnsinencssccoussousnsvisns 11

Rossco Holdings, Inc. v. State of California, 212

Cal.App.3d 642, 260 Cal.Rptr. 736 (Cal.App. 1989),

cert. denied, 494 U.S. 1080 (1990).............. 1, 10, 11, 138, 17

Suitum v. Tahoe Regional Planning Agency, 520

See, Fg At SR WEED each cusiabckesessosceacstersiaserias 7

United States v. 30.54 Acres of Land, 90 F.3d 790

Re AE iinet ncditnadicismaeedieeasonesh aes 16

Warner Bros. Pictures v. Brodel, 31 Cal.2d 766, 192

P.2d 949 (Cal.), cert. denied, 335 U.S. 944 (1948).......... 15

el

TABLE OF AUTHORITIES — Continued

Page

Washington Legal Foundation v. Legal Foundation

of Washington, 271 F.3d 835 (9th Cir. 2001)................... 8

Washington Legal Foundation v. Legal Foundation,

70 U.38.L.W 3761 (U.S. June 10, 2O0Z) ............ccccccssrsoeees 8

Williamson County Regional Planning Commission

uv. Hamilton Bank, 473 U.S. 172 (1985)................. passim

Wilson v. Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938,

Oe Ei ee re Lb isaciaeeirtidkepicissvins merece 9,13

STATUTES

ere i ioiwinsrcsntnisonganapsebsentnoneclanssveakenseenne 9

CAs SUS: TU are es sain caanscesvininnarinctcsonianecepsvannh 9, 0

INTRODUCTION

In this petition, the current owners of coastal property

seek to avoid the legal obligation to provide public access

that their predecessor in interest voluntarily assumed in

1974 when he obtained a coastal development permit for

the approval of a subdivision. This legal obligation was

affirmed in 1978 when the landowner accepted a second

coastal development permit to construct a house on one of

the subdivided lots and again in 1987 when the next

landowner recorded a formal offer to dedicate the ease-

ment in compliance with the conditions of approval. The

current landowners, Ann Daniel and Leonard Hill (the

“Daniels”), request that the Court review the Ninth

Circuit’s decision rejecting their claim that Santa Barbara

County’s acceptance of the 1987 irrevocable offer of dedica-

tion constituted a “taking.” The Daniels’ petition presents

no important federal questions and should be denied:

¢ The Daniels’ federal court claim is not ripe under

the second prong of this Court’s holding in Wil-

liamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172, 194 (1985), which

requires a plaintiff seeking relief for an alleged

taking to seek “compensation through the proce-

dures the State has provided for doing so,” before

a claim may be pursued in federal court.

e The doctrines of res judicata and waiver bar a

successor landowner from collaterally attacking

permit conditions where the predecessor land-

owner did not challenge the permit condition but

instead voluntarily complied with the permit con-

dition and accepted the benefits of the permit.

See, e.g., California Coastal Comm’n v. Superior

Court (“Ham”), 210 Cal.App.38d 1488, 258

Cal.Rptr. 567 (Cal.App. 1989); Rossco Holdings,

2

Inc. v. State of California, 212 Cal.App.3d 642,

260 Cal.Rptr. 736 (Cal.App. 1989), cert. denied,

494 U.S. 1080 (1990).

e There is no conflict among the courts, because

both state and federal courts have found that a

landowner may not collaterally attack an offer of

dedication required as a permit condition after

the statute of limitations has expired and where

the landowner has obtained the benefits of the

permit. E.g., Ham; Leroy Land Development Co. v.

Tahoe Regional Planning Agency, 939 F.3d 696,

698-699 (9th Cir. 1991).

e Even putting aside that the Daniels’ takings claim

is barred by res judicata and waiver, their takings

claim based on County’s acceptance of the irrevo-

cable offer is meritless because it is based on a

misunderstanding of California law regarding

property dedications. Once a landowner records

an irrevocable offer of dedication, his ability to ex-

clude the public terminates upon acceptance of

the offer. The Daniels, as successors in interest,

have no greater property rights than what their

predecessors conveyed to them. See Oyavan Inves-

tors v. California Coastal Comm’n, 26 Cal.App.4th

516, 528, 32 Cal.Rptr. 103 (Cal.App. 1994), cert.

denied, 513 U.S. 1148 (1995). Because the Daniels’

predecessors had no right to object to the County’s

acceptance of the irrevocable offer of dedication,

neither did the Daniels.

The Daniels’ petition a for writ of certiorari should be

denied.

|

STATEMENT OF THE CASE

The Daniels purchased beachfront property in Santa

Barbara County in 1997. Pet. App. 2a. This property had

once been part of a larger parcel owned by Carl Johnson,

which he subdivided in 1974 into four separate parcels. Id.

A regional commission of the California Coastal Commis-

sion approved the division conditioned on Johnson’s

recordation of a 25-year “firm continuing” irrevocable

Offer to Dedicate to County a five-foot wide pedestrian and

bicycle easement across the property. Id.

Johnson appealed the imposition of the condition to

the California Coastal Commission (“Commission”), which

affirmed the regional commission’s decision. Jd. Johnson

did not seek judicial review of this administrative decision.

Id. This condition was reimposed in 1977 when Johnson

applied for and received a permit from the Commission to

build a house on the parcel now owned by the Daniels. Pet.

App. at 4a. Johnson did not challenge the condition and

built the house in 1978. Id.

In 1987, W. Bruce and Darlene Bucklew (“the

Bucklews”), who acquired the parcel from Johnson, were

required by the Commission to record a 25-year “irrevoca-

bie” Offer to Dedicate for the same five-foot easement

because Johnson had failed to comply with the 1977

permit condition requiring the offer of dedication. Pet.

App. at 4a & 22a. The Bucklews did not challenge the

Commission’s request and proceeded to record the offer to

dedicate. Pet. App. at 4a. All three offers were matters of

public record. Pet. App. at 2a. In 1997, the Daniels ac-

quired the property from the Bucklews. Pet. App. at 2a.

In 1998, and within the 25-year period, County

accepted the Bucklews’ offer to dedicate the easement. Id.

The Daniels challenged County’s actions in federal] district

court, alleging a violation of the Takings Clause of the

Federal] Constitution. Jd. The Daniels sought declaratory

and injunctive relief only, declining to seek compensation.

Pet. App. at 6a. Neither Johnson, the Bucklews, nor the

Daniels ever sought compensation for an alleged taking in

any state proceeding.

On County’s motion, the district court dismissed the

takings claim, holding that the Daniels lacked standing

because their property was subject to the offer to dedicate

at the time they purchased it. Pet. App. at 4a. Alterna-

tively, the district court held that the takings claim ac-

crued in 1974 and 1977, and in any event no later that

1987, and was therefore time-barred. Jd. Further, the

district court held that even if the Daniels had standing

and their takings claim was not time-barred, the claim

was not ripe because the Daniels could not allege that the

state had refused to compensate them or their predeces-

sors in interest for the alleged taking. Pet. App. at 5a. The

district court also dismissed the Daniels’ supplemental

state law claims. ld.

The Daniels appealed the dismissal of their takings

claim. In a reported decision, the Ninth Circuit affirmed

the decision of the district court. Daniel v. County of Santa

Barbara, 288 F.3d 375 (9th Cir. 2902). The Ninth Circuit

determined the claim was not ripe under the second prong

of this Court’s holding in Williamson County, which

requires a plaintiff seeking damages for an alleged taking

to seek compensation first in state proceedings before

seeking relief in the federal courts. Pet. App. at 7a. The

Court stated:

.. the second Williamson County requirement

does not appear to have been satisfied. Neither

Johnson nor the Bucklews ever attempted to use

state procedures to obtain just compensation

from the Commission, which exacted the offers to

dedicate, or from the County of Santa Barbara,

to which the offers were made. Assuming that

adequate state procedures were available to seek

such compensation, the failure of Johnson and

the Bucklews to seek just compensation meant

that they never created ripe federal takings

claims.

Pet. App. at 8a.’

Alternatively, the Ninth Circuit found that if there

had been no adequate state compensation remedy avail-

able in California until 1987 when this Court decided First

English Evangelical Lutheran Church v. Los Angeles

County, 482 U.S. 304 (1987), then the claim was ripe as

soon as the Commission’s decision was final. Pet. App. at

8a, citing Williamson County 473 U.S. at 194-197. In such

case, the Ninth Circuit concluded the claim was barred by

the statute of limitations. Pet. App. at 9a.

In concluding the claims were barred by the statute of

limitations, the Court determined that the imposition of

the permit conditions requiring an irrevocable offer of

’ The Ninth Circuit assumed the alleged taking was a “regulatory

taking,” (Pet. App. at 6a) but noted that even if the takings claim was a

physical taking, it made no difference as to the application of the second

requirement of Williamson County (Pet. App. at 9a). “In a physical

takings case, as in a regulatory takings case, the property owner must

have sought compensation for the alleged taking through available

state proceedings.” Jd.

———

dedication was like the taking of an option and the taking

of the options occurred in 1974, 1978, and 1987. Pet. App.

at lla. Because the County did not have to pay anything

to exercise the option, the Ninth Circuit determined that

“the value of what was taken from Johnson and the

Bucklews was the full value of the easement.” Jd. There-

fore, when the Daniels purchased the property from the

Bucklews, the offer to dedicate had already been taken

from the predecessor in interest and “County's acceptance

of one of those offers took nothing from the Daniels that

had not already been taken.” Jd.

Further, the Ninth Circuit found that the Daniels had

“purchased their property with notice of the [conditions

and recorded offer to dedicate]. They cannot by virtue of

their purchase, obtain greater rights than those held by

their predecessors in interest.” Pet. App. at 10a. On these

facts, the court held that this Court’s decision in Palazzolo

v. Rhode Island, 533 U.S. 606 (2001), did not resurrect the

Daniels’ takings claim.

Finally, the Ninth Circuit ruled that even if the

takings claim was ripe under Williamson County, the

Daniels’ remedy was to seek compensation rather than

declaratory and injunctive relief. Pet. App. at 13a. The |

Ninth Circuit held that if there is a constitutional infir- |

mity in this situation, it is in the state’s failure to pay for |

the taking, because, as stated by this Court in Nollan v.

California Coastal Commission 483 U.S. 825, 841, 842

(1987), “California is free to ... [use] its power of eminent

domain for the ‘public purpose,’ ... but if it wants an

easement across the Nollans’ property, it must pay for it.”

Pet. App. at 14a, quoting Nollan.

,%

vv

~~]

ARGUMENT

I. THE DANIELS’ TAKINGS CLAIM DOES NOT

MEET THE SECOND PRONG OF THE FED-

ERAL RIPENESS REQUIREMENT OF WIL-

LIAMSON COUNTY.

The Daniels’ petition is meritless for a variety of

independent reasons, and none present important federal

questions or a conflict among the courts. The first reason

is noncompliance with the requirements of Williamson

County. In Williamson County, 473 U S. at 186, this Court

identified two separate ripeness hurdles that a plaintiff

must satisfy prior to seeking relief for a takings claim in

federal court: the final decision requirement and the state

compensation requirement. As reiterated in by this Court

in Suitum v. Tahoe Regional Planning Agency, 520 US.

725, 117 S.Ct. 1659 (1997):

Williamson County ... explained that a plaintiff

must demonstrate that she has both received a

‘final decision regarding the application of the

[challenged] regulations to the property at issue’

from ‘the government entity charged with im-

plementing the regulations,’ id., at 186, 105

S.Ct., at 3116, and sought ‘compensation through

the procedures the State has provided for doing

so, id., at 194, 105 S.Ct., at 3120.

Id. at 734, 117 S.Ct. at 1665.

The state compensation requirement means that

takings claims against local and state governments must

begin in state courts. Indeed, before it issued its decision

in Daniels v. County, the Ninth Circuit has routinely and

uniformly applied Williamson County to dismiss federal

takings claims where the plaintiff did not first seek com-

pensation through available state court procedures. See,

e.g., Macri v. King County, 126 F.3d 1125, 1130 (9th Cir.

1997), cert. denied, 522 U.S. 1153 (1998) (dismissing

takings claim for failure to first seek relief in state court);

Jama Construction v. City of Los Angeles, 938 F.2d 1045,

1047-48 (9th Cir. 1991), cert. denied, 503 U.S. 919 (1992)

(dismissing claim because “Jama did not seek compensa-

tion through California procedures before bringing its

federal action.”); Lai v. City & County of Honolulu, 841

F.2d 301, 303 (9th Cir. 1988), cert. denied, 488 U.S. 994

(1988) (dismissing claim because plaintiffs failed to “pur-

sue all avenues of relief before presenting a takings claim

in federal court”). Moreover, this requirement has been

uniformly applied by the Circuit Courts. See Dodd v. Hood

River County, 59 F.3d 852, 859 n.3 (9th Cir. 1995), cert.

denied, 525 U.S. 923 (1998) (citing cases from the First,

Second, Sixth, Seventh, Tenth and Eleventh Circuits).’

Therefore, under the second prong of Williamson

County, the petition should be denied.

* Petitioners suggest that this issue is being reviewed by this Court

in Washington Legal Foundation v. Legal Foundation, 70 U.S.L.W 3751

(U.S. June 10, 2002) (No. 21-1325). The issues raised in that case,

however, are far different from the land use context, as that review

focuses on the Ninth Circuit’s holding in Washington Legal Foundation

v. Legal Foundation of Washington, 271 F.3d 835 (9th Cir. 2001), which

rejected a challenge that the Washington State Interest on Lawyers’

Trust Account (““IOLTA”) program unconstitutionally took the interest

generated by their monies placed in IOLTA trust accounts.

9

Il. THE PETITION SHOULD BE DENIED BE-

CAUSE IT IS BARRED BY THE STATUTE OF

LIMITATIONS AND DOCTRINES OF RES JU-

DICATA AND WAIVER.

Even if the second prong of Williamson County did not

prevent the Daniels from bringing this claim in federal

court, the Daniels’ challenge to the offer of dedication

required by the Coastal Commission was barred many

years ago.

A. The Claim Is Barred By the Statute of

Limitations and Res Judicata.

As an alternative to its holding that the Daniels’ claim

is not ripe, the Ninth Circuit determined that the claim

was barred by the “applicable” statute of limitations. Pet.

App. at 9a. For takings claims under 42 U.S.C. section

1983, the applicable statute of limitations is the state

statute of limitations. Wilson v. Garcia, 471 U.S. 261, 275,

105 S.Ct. 1938, 1946-1947, 85 L. Ed. 2d 254, 266 (1985).

Although the Ninth Circuit did not specify which statute

of limitations it had applied, the district court held that in

California the claim was barred either by the three-year

(for claims priory to 1985) or one-year (for post 1985 claims)

statute of limitations. Pet. App. at 42a. The district court

further noted that any claim in state court for compensa-

tion must be filed within 90 days of the date of the

final adjudicatory administrative decision. Jd. n. 42, citing

Hensler v. City of Glendale, 8 Cal.4th 1, 22, 32 Cal.Rptr.2d

244, 876 P.2d 1043, 1047 (Cal. 1994) and Cal. Gov. Code

10

§ 66499.37.° Regardless of which statute of limitations

applied, it is clear that the time to file a claim challenging

the exaction of an offer of dedication that first occurred in

1974 expired long before the Daniels acquired the property

in 1997.

If a landowner fails to file a timely challenge, the

Coastal Commission’s subdivision approval or permit

decision becomes final, and the application of state law

principles of res judicata and collateral estoppel renders

the Commission’s decision “immune from collateral attack,

either by inverse condemnation action or by any other

action.” Patrick Media Group, Inc. v. California Coastal

Comm’n, 9 Cal.App.4th 592, 608, 11 Cal.Rptr.2d 824, 833

(Cal.App. 1992).

Applying this rule, the California courts repeatedly

have rejected collateral attacks on permit conditions,

including public access conditions, where the time for

properly challenging the Commission’s decision has long

since passed. See Ham, 210 Cal.App.3d 1488, 258

Cal.Rptr. 567 (Cal.App. 1989) (rejecting collateral attack

on access condition where landowner failed to file timely

challenge, complied with condition and accepted benefits

of permit); Rossco Holdings, 212 Cal.App.3d 642, 260

Cal.Rptr. 736 (Cal.App. 1989), cert. denied, 494 U.S. 1080

(1990) (barring collateral attack on access conditions

where applicant failed to timely file a challenge to condi-

tions); Ojyavan Investors, 26 Cal.App.4th 516, 32 Cal.Rptr.

* County has consistently argued in this case that the 90-day

statute of limitation of Cal. Gov. Code § 66499.37 applies. See, e.g., ER

0049.

11

103 (Cal.App. 1994), cert. denied, 513 U.S. 1148 (1995)

(failure to timely challenge permit conditions renders

them immune from collateral attack by successor in

interest).

In this case, the original landowner, Johnson, never

filed an action challenging the either the Coastal Commis-

sion’s 1974 approval of the subdivision or the 1977 build-

ing permit. Nor did the Bucklews challenge the 1987

requirement that they record the irrevocable offer to

dedicate. As a result, under uniform principles in both the

federal and state courts, the statute of limitations and

doctrine of res judicata bar the Daniels’ claim. Ham;

Rossco Holdings; see Leroy Land Development Co. at 698-

699.

B. The Claim Is Barred By Waiver.

The Daniels’ collateral attack on the permit conditions

is also barred under California’s waiver doctrine. Under

this doctrine, a challenge to a permit condition by a

landowner or his successor in interest is waived when the

landowner complies with the permit condition or accepts

the benefits of the permit. County of Imperial v. McDou-

gal, 19 Cal.3d 505, 510-12, 564 P2d 14, 17-18, 138

Cal.Rptr. 472, 474-75 (Cal.), app. dismissed, 434 U.S. 944

(1977). California courts frequently have applied this rule

against collateral attacks on permit conditions. Rossco

Holdings, 212 Cal.App.3d at 654, 260 Cal.Rptr. at 742

(waiving challenge to access condition by receiving bene-

fits of permits and by complying with condition); see

Ojavan Investors, Inc., 26 Cal.App.4th at 527-28, 32

Cal.Rptr.2d at 110, City of Santee v. Superior Court, 228

Cal.App.3d 713, 279 Cal.Rptr. 22 (Cal.App. 1991); Pfeiffer

12

v. City of La Mesa, 69 Cal.App.3d 74, 137 Cal.Rptr. 804

(Cal.App. 1977).

Applying this state law rule, the permit “runs with

the land” and the Daniels succeeded to the benefits of the

permit issued to Johnson. The Daniels cannot now chal-

lenge the condition placed on issuance of that permit.

Consequently, the Daniels’ petition should be denied.

III. THE DANIELS’ MANUFACTURED TAKINGS

CLAIM IS BASED ON A MISTAKEN VIEW OF

CALIFORNIA REAL PROPERTY LAW.

Even if the Daniels could avoid Williamson County’s

second prong and were allowed to bypass the statute of

limitations and the doctrines of res judicata and waiver, |

their takings claim would not present an important issue |

of federal law.

A. The Daniels’ Taking Theory Does Not Pre-

sent An Important Issue of Federal Law.

Implicitly realizing the untimeliness of their action,

the Daniels seek to manufacture a takings claim by their

dual taking theory — that the imposition of a permit

condition requiring an offer of dedication constitutes one

taking and that County’s 1998 acceptance of the irrevoca-

ble offer of dedication is a second, legally distinct taking.

Pet. at 17. The Daniels, however, do not point to any

reported decision, treatise, law review article or other

legal source that supports this peculiar theory.

Inventing a new legal theory does not make it an

important new issue of federal law. Nor do the Daniels

elevate this issue in importance by pointing to “literally

OT I et ome

Ee Ne eT RT NS OT TC eT mS

13

hundreds of other offers .. . are soon to expire.” Pet. at 18.

Even if these offers ever get accepted, the Daniels are

presumptuous in assuming that other landowners also will

seek to renege on legal obligations that they voluntarily

undertook.‘

The Daniels also argue that the Court should grant

the petition because landowners have “little incentive” to

contest the initial offer of dedication, thereby encouraging

governments to use the offer of dedication “scheme” to

circumvent the requirements of Nollan. Pet. at 19. This

assertion is incredible. Cases such as Hensler, Ham,

Rossco, and Patrick Media for years have provided land-

owners notice that they are legally required to bring a

challenge to a permit condition when the condition is first

imposed, and cases such as Nollan and Dolan v. City of

Tigard, 512 U.S. 374, 129 L. Ed. 2d 304, 114 S.Ct. 2309

(1994) give the permittee every incentive to challenge the

imposition of the original permit condition if government

oversteps its authority. Notwithstanding the Daniels’

empty claims of “coerciou” and “extortion,” there is no

reason to create a new constitutional rule that would allow

landowners to challenge the acceptance of irrevocable

offers of dedication many years after they have accepted

permit conditions and enjoyed the benefits of the permit. See

Leroy Land Development Co., 939 F.3d at 698-699 (challenge

to settlement agreement imposing conditions of development

five years after execution, based on a subsequent takings

* Indeed, the Daniels completely overstate the issue. In Santa

Barbara County, of the 72 outstanding offers to dedicate accepted by

County, see Cole Pet. at 4, only two landowners (Cole and Daniel) have

chosen to challenge County’s acceptance.

14

analysis articulated in Nollan, rejected because it “ ...

would inject needless uncertainty and an utter lack of

finality to settlement agreements of this kind”).

B. The Daniels’ Takings Claim Is Meritless

In any event, the Daniels’ underlying takings claim is

meritless, even putting aside that it is barved by res

judicata and waiver. The Daniels’ claim that County’s

acceptance of an irrevocable offer of dedication constitutes

a separate compensable taking is founded on a mistaken |

understanding of the property “right” retained by a land-

owner after the landowner has recorded an irrevocable

offer of dedication. As the Daniels properly concede, state

real property law must measure the property interest

claimed to be taken. Pet. at 10. In the Daniels’ view of

California law, the public does not “acquire any right to

the easement” until the offer is accepted. Pet. at 11-12.

The Daniels’ theory that County’s acceptance of an

irrevocable offer of dedication is a separate taking is based

on a misreading of California real property law. Once the

landowner records an irrevocable offer of dedication, he

has conveyed away the right to exclude the public should

the irrevocable offer ever be accepted and opened to the

public. In this case, for example, the irrevocable offer

granted by the Daniels’ predecessor states that:

. Offer{ing] for dedication to the County of

Santa Barbara or its successor in jurisdiction, for

recreational pedestrian and bicycle access an

easement 5’ in width from Padaro Lane to the

mean high tide line. . . . Said offer shall be a firm

continuing offer of dedication which is not re-

jected or vitiated by failure to accept or pur-

ported rejection for a period of 25 years, unless

ii ii ia

15

the County has in the meantime provided beach

access within a distance of 300 yards upcoast or

downcoast of this parcel. The offer of dedication

shall be conditioned on assumption by the

County of Santa Barbara or its successor, of the

burden of maintenance of the easement and the

beach area to which access is provided, together

with the burden of public liability on the ease-

ment.

Pet. App. at 2a. (Emphasis by Ninth Circuit.)

Therefore, although the landowner may have the

qualified right to exclude others while the irrevocable offer

of dedication is outstanding, that right is subject to

immediate extinction once the agency accepts the offer. A

public agencys acceptance of the irrevocable offer of

dedication is not a taking of a landowner’s property right;

it is the public’s exercise of a right that the landowner

explicitly conveyed away when he made the irrevocable

offer of dedication. See, e.g., Ojavan Investors, 26

Cal.App.4th at 528, 32 Cal.Rptr. at 110 (finding that prior

landowner had waived right to challenge deed restrictions

by having accepted the benefits of the permit and that

current landowner can take “only the title [the prior

owner] had and subject to prior recorded instruments”).

As recognized by the Ninth Circuit, under both federal

and California law, an irrevocable offer of dedication is like

an option, and the taking of an option occurs when the

option is granted, not when it is exercised. Pet. App. at

10a; and see Palo Alto Town & Country Village, Inc. v.

BBTC Co., 11 Cal.3d 494, 502, 521 P.2d 1097, 1102, 113

Cal.Rptr. 705 (Cal. 1974) (the making of an option is an

“irrevocable offer”); Warner Bros. Pictures v. Brodel, 31

Cal.2d 766, 772, 773, 192 P.2d 949, 952 (Cal.), cert. denied,

16

335 U.S. 944 (1948) (an “option contract gives the optionee

a right against the optionor for performance of the con-

tract ... which the optionor cannot defeat by repudiating

the option”). Thus, when County accepted the irrevocable

offer, County’s action took nothing from the Daniels “that

had not already been taken.” Pet. App. at lla. The Cali-

fornia authority upon which the Daniels rely concerns

revocable offers of dedication, not irrevocable offers, Pet.

at 11-12, and simply highlights that the Daniels’ takings

claim is entirely dependent on having this Court reach a

different conclusion about the California law of property

dedication.°

Finally, the determination that the acceptance of an

irrevocable offer is not a taking accords with this Court's

views in Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992). In Lucas, decided five years after Nollan,

this Court acknowledged that “we assuredly would permit

the government to assert a permanent easement that was

a pre-existing limitation upon the landowner’s title.”

Lucas, 505 U.S. at 1028-29; and see United States v. 30.54

Acres of Land, 90 F.3d 790, 792 (3d Cir. 1996) (“Because

the navigational servitude was a preexisting limitation on

the landowners’ title to riparian land, we hold the Corps’

* The Daniels also rely on Grupe v. California Coastal Comm'n, 166

Cal.App.3d 148, 212 Cal.Rptr. 578 (Cal.App. 1985) to support their dual

taking theory. Pet. at 11. In Grupe, the court upheld the Commission's

imposition of a condition requiring the developer to make an offer of

dedication to mitigate the impacts of his project. The court recognized

the contingent nature of the residual “rights” of the landowner and that

the landowner’s ability to exclude existed only “until such time as a

public agency or private association agrees to accept the offer and

concomitant responsibility to police the beach.” Grupe, 166 Cal.App.3d

at 170, 212 Cal.Rptr. at 592 (emphasis added).

17

exercise of the servitude ... was not a taking[.]”).Under

California real property law, the recording of an irrevoca-

ble offer of dedication is a preexisting limitation on title

that extinguishes any right to exclude the public once the

irrevocable offer is accepted.

IV. THE DANIELS PRESENT NO IMPORTANT

ISSUES OF RIPENESS.

The Daniels concurrent assertion that their takings

claim was not ripe until County accepted the offer, Pet. at

15, fails for the same reason that it fails on the merits.

Again, the Daniels’ argument ignores that California law

requires that any challenges to subdivision approvals and

permit conditions, including constitutional challenges,

must be brought within the time period for challenging the

underlying administrative action. See Hensler, 8 Cal.4th at

22, 32 Cal.Rptr. at 257-258, Ham, 210 Cal.App.3d at 1493,

258 Cal.Rptr. at 568; Rossco Holdings, 212 Cal.App.3d at

657, 260 Cal.Rptr. at 744. Consequently, if there was a

takings claim, it became ripe many years ago when the

Commission imposed the permit condition exacting the

offer of dedication.

Moreover, the acceptance of an irrevocable offer of

dedication can never arise to a taking because, as dis-

cussed, once a landowner records an irrevocable offer of

dedication, he irrevocably conveys any right to exclude the

public if the offer of dedication is accepted. When County

accepted the Bucklews’ original offer of dedication, it simply

exercised the property interest that the Daniels’ predeces-

sor had irrevocably conveyed to the public, and that the

Daniels had no property interest to prevent. County of San

Diego v. Miller, 13 Cal.3d 684, 693, 119 Cal.Rptr. 491, 532

18

P.2d 139 (1975) (“owner of an unexercised option to pur-

chase land possesses a property right ... ”). Because a

takings claim based on the acceptance of such an offer

does not exist, it is pointless to consider when such a claim

might “ripen.”

The Daniels also appear to suggest that their ability

to attack the subdivision map and permit conditions was

somehow resurrected by this Court’s holding in Palazzolo

uv. Rhode Island, 533 U.S. 606 (2001). Palazzolo indicated

that a transfer of title does not necessarily bar a takings

claim, even though the new owner acquires the property

with knowledge of existing regulation. Palazzolo, however,

did not eliminate the statute of limitations for takings

claims, nor did it allow a subsequent landowner to assert a

takings claim that the predecessor had already lost before

the transfer. As the Ninth Circuit correctly held in this

case, the Daniels’ predecessor did not file a takings claim

before the limitations period expired, but instead complied

with the restriction and accepted the benefits of the

permit. Therefore, the Daniels “purchased their property

subject to the County’s pre-existing options to accept

dedication of an easement.... Because the full value of

the easement had already been taken from the Daniels’

predecessor, it took nothing of value from the Daniels.”

Pet. App. 13a. Palazzolo did not revive takings claims that

had expired long before the new owner acquired the

property.

*

19

CONCLUSION

This Court should deny the petition for a writ of

certiorari.

Respectfully submitted,

STEPHEN SHANE STARK, County Counsel*

ALAN L. SELTZER, Chief Deputy

WILLIAM M. DILLON, Senior Deputy

105 East Anapamu Street, Suite 201

Santa Barbara, California 93101

(805) 568-2950

Attorneys for the County of Santa Barbara

September 2002 *Counsel of Record