Petition for Writ of Certiorari — Loewenstein v. City of Lafayette, California
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021662 MAY 1 2 2093
~No.
OFFICE OF THE CLERK
In The
Supreme Court of the Anited States
,
Vv
PETER J. LOEWENSTEIN and
HELEN LOEWENSTEIN,
Petitioners,
W¥..
CITY OF LAFAYETTE, a Municipality,
Respondent.
2
7
On Petition For A Writ Of Certiorari
To The Court Of Appeal
Of The State Of California,
First Appellate District
¢
PETITION FOR A WRIT OF CERTIORARI
&
Vv
DAVID J. BOWIE
Counsel of Record
BOWIE & BRUEGMANN, LLP
1700 N. Broadway, Suite 350
Walnut Creek, CA 94596
(925) 939-5300
Attorneys for Petitioners
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OP. CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Whether litigation regarding the erroneous
application of a land use regulation which resulted in
denial of a development project is simply a “normal” part
of the development process so that compensation for a
temporary taking was properly denied puisuant to First
English Evangelical Lutheran Church of Glendale us.
County of Los Angeles, 482 U.S. 304 (1987).
2. Whether a landowner is entitled to just compensa-
tion for a temporary taking of his land if a land use regu-
lation as generally applied might be viewed as a part of a
reasonable regulatory process, but if, as applied to a
specific development project, it actually failed to substan-
tially advance any legitimate government interest.
3. Whether a landowner is entitled to just compensa-
tion pursuant to Lucas vs. South Carolina Coastal Coun-
cil, 505 U.S. 1003 (1992), for the temporary deprivation of
all economically feasible use of his land due to the errone-
ous application of land use regulation which effectively
prevented access and which precluded utilities services.
il
LIST OF PARTIES
The Petitioners are Peter G. Loewenstein and his-
wife, Helen Loewenstein. Petitioners were Plaintiffs in the
proceedings at the trial court level before the Contra Costa
Superior Court; they were Respondents and Cross-
Appellants before the California Court of Appeal, First
District, Division One; they were unsuccessful Petitioners
for Review before the California Supreme Court.
The City of Lafayette, a Municipality, was the Defen-
dant in proceedings before the Contra Costa Superior
Court, the Appellant and Cross-Respondent on appeal
before the California Court of Appeal, First District,
Division One, and the Respondent before the California
Supreme Court.
Amici Curiae, City and County of San Francisco, and
the State of California filed Briefs in Support of the City of
Lafayette before the California Court of Appeal. More than
50 California Cities joined with the City and County of
San Francisco and its Brief filed in support of the City of
Lafayette.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED..000000.o.oeecoceccesececcececcs... i
ee os Satseveeyeie ssiceeokssnnindeaseeseecseccccace: ii
TABLE OF CONTENTS ...0.......cccccsccsseseseeseceecececesc... iii
TABLE OF AUTHORITIES 0.0.0.0... ccccccsccccecesececescs... Vv
PETITION FOR WRIT OF CERTIORARI................ ee
OPINIONS AND ORDERS BELOW.......................... 2
to TES ee 4
CONSTITUTIONAL AND STATUTORY PROVISIONS _
soy si). hau ECE ROO en 5
STATEMENT OF THE CASE ooo... cccececcccccccececcc.. 7
A. STATEMENT OF FACTS ...000...cceccccccccsccecscs. 7
B. THE COURSE OF THE PROCEEDINGS
Se ih airbase ised nce ddenincedsorcincess.... 11
REASONS FOR GRANTING THE WRIT.............. 16
A. THE HOLDING OF THE CALIFORNIA
COURT OF APPEAL THAT LITIGATION
REGARDING THE ERRONEOUS APPLICA-
TION OF A LAND USE REGULATION
WHICH RESULTED IN DENIAL OF A DE-
VELOPMENT PROJECT IS SIMPLY A
“NORMAL” PART OF THE. DEVELOPMENT
PROCESS REQUIRING NO COMPENSA-
TION DIRECTLY CONFLICTS WITH THE
FIFTH AMENDMENT AND ITS REQUIRE-
MENT FOR PAYMENT OF JUST COMPEN-
SATION FOR A REGULATORY TAKING AS
SET FORTH IN FIRST ENGLISH................. 16
iV
TABLE OF CONTENTS -— Continued
Page
B. THE COURT OF APPEAL DECISION WHICH
HOLDS LITIGATION OVER WRONGFUL
REGULATORY ACTION TO BE BUT A NOR-
MAL PART OF THE REGULATORY PROC-
ESS CONFLICTS WITH DECISIONS OF
THE WISCONSIN SUPREME COURT.....=..... 21
C. THE DECISION OF THE COURT OF AP-
PEAL CONFLICTS WITH THIS COURT'S
OPINIONS IN AGINS AND NOLLAN IN ITS
HOLDING THAT A PARTICULAR LAND USE
REGULATION WHICH IS A PART OF A
REASONABLE REGULATORY PROCESS
CANNOT BE DEEMED TO HAVE FAILED
TO SUBSTANTIALLY ADVANCE GOVERN-
MENT INTERESTS AS APPLIED................... 22
D. REGULATORY ACTION WHICH PREVENTS
ACCESS TO LAND OR RENDERS UTILI-
TIES UNAVAILABLE MUST BE DEEMED
TO HAVE DEPRIVED A LANDOWNER OF
ALL ECONOMICALLY FEASIBLE USE OF
HIS LAND SO THAT JUST COMPENSATION
MUST BE PAID AS SET FORTH IN LUCAS... 27
CE IEE sictnsstdsiinneptiinisinnvnieadeenntalienweaniies 29
Vv
TABLE OF AUTHORITIES
ie Page
CASES:
_ Agins us. City of Tiburon, 447 U.S. 255 (1980).......... passim
Eberle vs. Dane County Bd., 595 N.W. 2d 730 (1999).2, 21, 28
First English Evangelical Lutheran Church of Glendale
us. County of Los Angeles, 482 U.S. 304 ( | passim
Landgate Inc. vs. California Coastal Commission,
2d Cal. 4th 1006 (2008) ...0....ccecssccoeseseeseeeesesses,..... passim
Loewenstein vs. City of Lafayette, 103 Cal. App. 4th
Fe PD iinicsinieiihbicsini cide ateiaa a sera 3, 20, 26, 29
Loretto vs. Teleprompter Manhatten CATV Corp.,
Fe a Sa i iviisicsisiecicnnniciiiadini oe 28
Lucas vs. South Carolina Coastal Council, 505 U.S.
1003 ST -sserveonsnsinspacicitaiimigtausiptaliie: 1, 15, 28, 29, 30
Nollan vs. California Coastal Commission, 483 U.S.
Sa, ON or REN Hatta Passim
San Dieguito Partnership vs. City of San Diego,
7 Cal. App. 4th 748 ( EMRE eM etn 13
STATUTES:
California Code of Civil Procedure Section og fT 14
California Code of Civil Procedure Section 1094.5 ........... 11
Government Code Section SEAMED sstivvivrncnvscsecbacsas 6, 138, 19
United States Constitution, Amendment V.............. passim
United States Constitution, Amendment XIV................ 4,5
MISCELLANEOUS:
Supreme Court Rules, Rule Se siscicciciaiapaadelbdliapiiaibeascioal 2,5
tel
1
PETITION FOR WRIT OF CERTIORARI
Petitioners respectfully petition for a Writ of Certio-
rari to review the Opinion of the California Court of
Appeal, First District, Division One, filed November 13,
2002. The California Supreme Court denied a Petition for
Review on February 11, 2003.
The California Court of Appeal tiated decided
this case on the strength of the State Supreme Court
holding in Landgate Inc. vs. California Coastal Commis-
sion, 17 Cal. 4th 1006 (1998). In Landgate, the California
Supreme Court held that a legally erroneous decision of a
government agency during the development approval
process which resulted in delay cannot constitute a tempo-
rary taking of property for the reason that litigation
challenging the validity of a land use restriction which
causes such delay is simply a “normal” part of the devel-
opment approval process. The wrongful regulatory action
taken by the City of Lafayette in denial of Petitioners’
development application was found to have been without
any support or justification and to have failed to substan-
tially advance any legitimate government interest. None-
theless, Petitioners’ required judicial challenge to
regulatery action was held to constitute mere “normal”
delay in the regulatory process consistent with the afore-
said Landgate holding. Petitioners submit that the Cali-
fornia Courts have eviscerated this Court’s holdings in
First English Evangelical Lutheran Church of Glendale vs.
County of Los Angeles, 482 U.S. 304 (1987) and Lucas vs.
South Carolina Coastal Council, 505 U.S. 1003 (1992), all
in violation of the Fifth Amendment’s just compensation
requirements.
2
In 1999, the Wisconsin Supreme Court addressed this
issue of litigation required to correct wrongful regulatory
action and “normal” development delay in Eberle vs. Dane
County Bd. of Adjustment, 595 N.W. 2d 730 (1999). Invited
to dispose of this issue in the same fashion as has the
California Supreme Court in Landgate and the Court of
Appeal in the subject case, the Wisconsin Supreme Court
specifically rejected the California approach to temporary
takings damages. In footnote 25 of its decision, the Wis-
consin Supreme Court refused to characterize litigation to
correct erroneous regulatory action as simply a “normal”
part of the development process and, therefore, made
possible an award of just compensation for a temporary
taking.
Pursuant to Supreme Court Rule 10(b), the grant of
Certiorari in this case would enable this Court to resolve
the evident conflict between the California and Wisconsin
Supreme Courts. In addition, the grant of Certiorari would
enable this Court to clearly and unambiguously define the
standards (1) for determining what constitutes “normal”
delay in the context of temporary takings jurisprudence,
(2) for determining what constitutes a legitimate state
interest or what type of connection between regulatory
‘action and state interest satisfies the requirement that the
former substantially advance the latter, and (3) for deter-
mining what constitutes the deprivation of all economi-
cally feasible use of property.
*
Vv
OPINIONS AND ORDERS BELOW
The November 13, 2002, published Opinion of the
California Court of Appeal, First Appellate District
3
(Division One) is reported at 103 Cal. App. 4th 718 and is
reprinted in the Appendix at App. 1. The December 10,
2002 Order of the Court of Appeal in which the Petition for
Rehearing was denied is reprinted in the Appendix at App.
31.
The California Supreme Court denied a Petition for
Review on February 11, 2003. That Order is reprinted in
the Appendix at App. 32. Remittitur issued and the case
became final on February 18, 2003; the Remittitur is
reprinted in the Appendix at App. 33.
The Contra Costa Superior Court issued three Orders,
a Statement of Decision, and a Judgment, all of which
were unpublished but relevant to this Petition. The
Superior Court Order Granting Petition for Writ of Man-
date is reprinted in the Appendix at App. 59. The Decision
and Order Re Ripeness is reprinted in the Appendix at
App 66. The Order Re Tentative Ruling is reprinted in the
Appendix at App 68. The Trial Court Statement of Deci-
sion and Judgment are reprinted in the Appendix at App.
72 and 98.
Some reference to the administrative proceedings
before the City of Lafayette City Council is necessary and
relevant to this Petition as the City’s improper and erro-
neous regulatory action formed the basis for all of the
judicial proceedings which followed. The City Council of
Lafayette adopted Resolution No. 69-98 in which it denied
Petitioners’ original development application; that Resolu-
tion is reprinted in the Appendix at App. 41. Subsequently,
the City of Lafayette first refused to correct its erroneous
regulatory action in an initial return to a Contra Costa |
Superior Court Peremptory Writ of Mandate, which initial
return is relevant to this Petition and is reprinted in the
ae Hee ON Seem Oh eee a a
eee a reer rae ay ae a Lanes aane Seaton SESS
4 ;
Appendix at App. 64. Finally, the City Council reversed its
position, in effect conceding that its regulatory action was
legally erroneous and approving Petitioners’ development
project in an Amended Return to Peremptory Writ of
Mandate which has been reprinted in the Appendix at
App. 103.
ee
Vv
JURISDICTION
The Decision of the California Court of Appeal, First
Appellate District, Division One, for which this Petition for
Writ of Certiorari has been sought was filed by the Clerk
of that Court on November 13, 2002. A Petition for Rehear-
ing was denied December 10, 2002. The California Su-
preme Court denied a Petition for Review in an Order filed
February 11, 2003. On February 18, 2003, the Court of
Appeal issued a Remittitur and the Decision became final.
From its very inception, this case has presented
important questions of constitutional Iaw. The Fifth
Amendment to the United States Constitution expressly
prohibits the taking of private property without due
process of law and payment of just compensation. The
Fifth Amendment is made applicable to the States by and
under the terms of the Fourteenth Amendment. The
Complaint filed with the trial court specifically sought
declaretory relief and damages pursuant to the takings
clause of the Fifth Amendment. The Court of Appeal
reversed a trial court judgment for a regulatory taking
based essentially upon the California Supreme Court case,
Landgate Inc. vs. California Coastal Commission, 17
Cal. 4th 1006 (1998). Landgate, in turn, represented the
California Supreme Court’s implementation of this Court’s
5
decision in First English Evangelical Lutheran Church of
Glendale vs. County of Los Angeles, 482 U.S. 304 (1987)
(which held a landowner may recover just compensation
damages for the taking of his property for the period
before it is finally determined that the regulation in
question worked a temporary taking except in cases
involving “normal” delays in obtaining building permits,
changes in zoning ordinances, variances, and the like).
Thus, jurisdiction exists pursuant to 28 U.S.C. Section
1257.
Because the Court of Appeal opinion made under the
authority of the California Supreme Court’s Landgate
decision directly conflicts with a decision of the Wisconsin
Supreme Court involving similar issues, and because that
opinion decides important questions of constitutional law
in a fashion which conflicts with decisions of this Court
and/or which should be settled once and for all by this
Court, jurisdiction also exists pursuant to Rule 10 of the
Supreme Court Rules.
,
—
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The United States Constitution, Amendment V, which
provides, in pertinent part, “No person shall be ... de-
prived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use,
without just compensation.”
The United States Constitution, Amendment XIV,
which provides, in pertinent part, “... [No State shall]
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdic-
tion the equal protection of the laws.”
6
The genesis of the dispute which gave rise to this case
was Petitioners’ application for a lot line adjystment in
which they proposed to reconfigure the lot lines of three
separate adjoining pre-existing legal parcels. As deter-
mined by the trial court, the three subject parcels might
have been merged into a single parcel and then resubdi-
vided under the California Subdivision Map Act. A Subdi-
vision Map Act application would clearly have been denied
' by the City of Lafayette, however. The reconfiguration of
lot lines of adjoining parcels is permitted as an exemption
\ from the Subdivision Map Act and little discretion is
‘afforded the City of Lafayette with respect to the approval
or denial of such an application. The Petitioners’ develop-
ment permit application was for lot line adjustment of
adjoining parcels and the City’s denial of that development
application was found to have been legally erroneous. The
lot line adjustment statute is relevant to these proceedings
and is found in California Government Code Section
66412(d). That statute provides as follows:
[The Subdivision Map Act in its entirety is inapplica-
ble to:]
“(d) A lot line adjustment between four or fewer
existing adjoining parcels, where the land taken
from one parcel is added to an adjoining parcel,
and where a greater number of parcels than
originally existed is not thereby created, if the lot
line adjustment is approved by the local agency,
or advisory agency. A local agency or advisory
agency shall limit its review and approval to a
determination of whether or not the parcels re-
sulting from the lot line adjustment will conform
to the local General Plan, any applicable Coastal
Plan, and Zoning and Building Ordinances. An
advisory agency or local agency shall not impose
7
conditions or exactions on its approval of a lot
line adjustment except to conform to the local
General Plan, any applicable Coastal Plan and
Zoning and Building Ordinances, to require the
prepayment of real property taxes prior to the
approval of the lot line adjustment, or to facili-
tate the relocation of existing utilities, infra-
structure, or easements. No tentative map, -
parcel map, or final map shall be required as a
condition to the approval of a lot line adjustment.
The lot line adjustment shall be reflected in a
deed which shall be recorded. No record of survey
shall be required for a lot line adjustment unless
required by Section 8762 of the Business and
Professions Code.”
Resolution 69-98 of the Lafayette City Council, which
is reprinted in the Appendix at App. 41.
4
v
STATEMENT OF THE CASE
A. Statement of Facts
The Petitioners Loewenstein are residents of the City
of Lafayette, California (City). The lot on which they built
their Lafayette home was created as a part of a 1977
subdivision. At the time that subdivision was approved,
the City imposed a condition, without explanation, which
precluded further subdivision “of the property”. App. 1-2.
Years later, the Loewensteins acquired a legal, but noncon-
forming and very small parcel of real property adjacent to
their residential lot (the Tank Lot). This Tank Lot had
been declared “surplus” by the East Bay Municipal Utility
District (District) as it had at one time housed a water
storage tank long since removed. As required by law, the
District offered the Tank Lot to the City as a pre-condition
8
to public sale. The District’s analysis of the Tank Lot
which accompanied its offer to the City noted that it
lacked both access and utilities, such that its independent
development was problematic, at best. The City declined to
purchase the Tank Lot and recommended instead that the
District sell it to an adjoining property owner who could
then merge the land or create a more useable lot through a
lot line adjustment. App. 57-58.
The entire purpose for the Loewensteins’ purchase of
the Tank Lot was to use the lot line adjustment procedure
to create a more useable lot with access and utilities upon
_ which they might construct a single-family residence. To
this end — and in accordance with City recommendations —
they proposed a lot line adjustment which would reconfig-
ure the Tank Lot into a conforming developable parcel
with utilities and road access which might be improved
with a single family residence of a type and size compati-
ble with other homes within the neighborhood. The City
denied the Loewenstein lot line adjustment despite the
fact that the Loewensteins proposed to do nothing other
than what the Citys recommendation to the District
anticipated. App. 3, 5.
The Tank Lot was adjacent, but not contiguous, to the
Loewenstein residential lot. The two lots only share a
common corner. Given this logistical circumstance, the
Tank Lot, by itself, could neither be merged into the
Loewenstein residential lot nor was it feasible to reconfig-
ure the Tank Lot through a lot line adjustment process
only involving the residential lot. The Tank Lot and the
residential lot were physically separated from sharing a
common boundary line (as opposed to a common corner) by
land which comprised yet a third lot — a lot owned by
adjoining neighbors, the Millers. By adding a triangular
portion of the Miller lot to the Tank Lot and Loewenstein
Tare
9
residential lot, sufficient common boundaries existed to
merge the lots, resubdivide them, and/or reconfigure them
using the lot line adjustment process. The Loewenstein
residential lot has public road access and available utili-
ties. Since the residential lot and the Tank Lot share only
a common corner with no common boundary line, however,
regulatory approval by the City of either a lot line adjust-
ment or a subdivision was required to extend roadway
access and utilities to the Tank Lot. App. 4.
The adjoining neighbors who owned the third lot
which was a part of the lot line adjustment refused to
participate in any fashion in a Subdivision Map Act
application. They were concerned over the impact of
potential exactions and conditions of approval which the
City might impose as a part of the Subdivision Map Act
process. App. 4. It was found by the trial court on the
preponderance of the evidence that the City would not
have approved a Subdivision Map Act application in any
case. App. 66. Despite this latter circumstance, the City
Council’s Resolution which denied the Loewenstein devel-
opment application took pains to stress that the denial
was as to the lot line adjustment process, but that the
Loewensteins might seek the same end result if they
would merely pursue a tentative subdivision map through .
the Subdivision Map Act process. App. 41.
The City was well aware of the statutory procedure for
lot line adjustments as it acknowledged that hundreds of
such applications had been routinely processed over a
period of at least 16 years without a single denial save
and except the subject Loewenstein application. App. 72,
78, 80. The City’s denial of the Loewenstein lot line
adjustment application and its urging that the Loewen-
steins might seek approval of the development project
through the Subdivision Map Act process was ingenuous.
10
Obviously, if the City was prepared to grant the end result
sought by the Loewensteins through the Subdivision Map
Act process, it might just as well have approved the lot
line adjustment. In fact, the trial judge found the City’s
regulatory action taken in denial of the lot line adjustment
application to have been erroneous and without substan-
tial or any evidence in the record to support it. App. 59.
The trial judge also found that there was no reasonable
probability that a subdivision application would have been
approved by the City. App. 66. In the absence of approval
of the lot line adjustment application, the Loewensteins
were found to have been denied all economically viable use
of their land. On the preponderance of the evidence pro-
duced at trial, the trial judge also found that the Loewen-
steins’ expectations regarding development of their Tank
Lot were reasonable investment-backed expectations
which were completely frustrated by the City’s regulatory
action. App. 72, 79. This was particularly egregious as
both the District and the City had anticipated that the
ultimate purchaser of the Tank Lot would use precisely
the lot line adjustment process selected by the Loewen-
steins to render the Tank Lot more useable and actually
developable given the lack of access or utilities at the time
of its purchase. App. 72.
Finally, and importantly, the trial court found that the
City had failed to offer any credible evidence of any sub-
stantial government purpose which was furthered by its
regulatory action of denial of the Loewenstein lot line
adjustment application. To the contrary, the trial court
found that approval of that development application would
have furthered any number of substantial government
purposes involved in converting a former legal but non-
conforming lot, into a legal and conforming lot, and ren-
dering that lot developable with a home of the size and
0 EE —
11
quality compatible with the surrounding neighborhood.
App. 72, 81.
The trial court initially held the City’s denial of the
Loewenstein development application to have been erro-
neous. It issued a peremptory writ of mandate command-
ing that said denial be-set aside and other action taken in
light of the Court’s decision. App. 59. In its return to the
Peremptory Writ, the City declined to reconsider its
decision and proposed to appeal the trial court determina-
tion. App. 64. After trial and a finding that Petitioners
were entitled to damages based on the taking of their
property through regulatory action with a correlative
award of just compensation damages, the City suddenly
abandoned its prior position and filed an Amended Return
to the Peremptory Writ of Mandate. App. 103. In the
Amended Return, the City reversed its position on the lot
line adjustment and approved it. This action on the City’s
part converted what had been a permanent taking of
Petitioners’ land into a temporary taking for which just
compensation damages might be awarded. It was this
issue of the temporary taking which was presented to the
Court of Appeal as the trial court was afforded no oppor-
tunity to decide either the issue of a temporary taking of
Petitioners’ land or the amount of damages which might be
properly assessed.
B. The Course of the Proceedings Below
After Petitioners fruitlessly exhausted all of their
administrative remedies, they sought judicial review of the
City’s denial of their lot line adjustment application
pursuant to California Code of Civil Procedure Section
1094.5. The first of three separate trial judges ruled
12
conclusively that “ ... whether the standard of review be
substantial evidence or arbitrariness, Respondent City of
Lafayette’s denial has no support in the Administrative
Record.” A Peremptory Writ of Mandate was issued;
however, the City refused to reconsider its prior permit
denial. The case then proceeded through several Motions
in Limine to trial on the issue as to whether the City’s
denial of the lot line adjustment application had effected a
regulatory taking. In ruling on a Motion in Limine, the
original trial judge found on the preponderance of the
evidence that “ ... it would be futile for Plaintiffs to
proceed with an application under the Subdivision Map
Act. Defendants own planning staff has made that clear
... and “... there is no reasonable possibility that Plain-
tiffs can develop their landlocked tank site independent of
their residential parcel”.
Prior to actual trial on the issue of a regulatory
taking, the City raised the California Supreme Court
Decision in Landgate Inc. vs. California Coastal Commis-
sion, 17 Cal. 4th 1006 (1998) as bar to any finding that a
regulatory taking might have occurred. The principal basis
of the Citys argument was its contention that the delay
attendant upon the need to seek judicial review of the
City’s erroieous regulatory action was but a part of
“normal delay” which might not give rise to “takings”
damages. That issue was heard by a second trial judge to
whom the case had been assigned and who rendered an
Interlocutory Order holding that, on the record presented
by the Motion, the City’s action was not objectively unrea-
sonable but that “ ... whether or not there has been a
taking cannot be determined on the existing record be-
cause there are disputed issues of fact.” The judge who
rendered the interlocutory Order then recused herself and
13
the case was assigned for trial on the issue of a takings
and the amount of just compensation due, if any.
After a full evidentiary court trial, the trial judge
ruled that a regulatory taking had occurred and that
Petitioners were entitled to just compensation. In so
_ Tuling, the trial judge specifically found (1) the Loewen-
steins purchased the Tank Lot with reasonable invest-
ment-backed expectations that it could be rendered a
buildable lot with proper access and available utilities
through the lot line adjustment process; (2) the economic
impact of the City’s regulatory action denied all economi-
cally viable use of the property; and (3) the City’s regula-
tory action failed to substantially advance any legitimate
state interest and involved the application of an arbitrary
standard in direct conflict with the plain language of
California Government Code Section 66412(d) and a prior
California Court of Appeal case which was held to be
directly on point — San Dieguito Partnership vs. City of
San Diego, 7 Cal. App. 4th 748 (1992). The trial court
rendered a Statement of Decision and a Judgment, which
Judgment was for the fair market value of the property as
a permanent taking.
After Judgment but prior to appeal, the City reversed
its position on the lot line adjustment and approved it as
presented. This action on the City’s part clearly changed
the nature of the regulatory taking so that the issue then
became whether a temporary taking had occurred for
which just compensation was due. Unfortunately, the trial
court had filed an Order to reopen the case to determine
whether the City’s withdrawal of its rejection of the lot
line adjustment affected the amount of damages when the
statutory time period in which the Court could have ruled
14
on a new trial motion had run. At that point, the case was
in the following procedural posture:
A. The City had belatedly filed an Amended Return
to the Peremptory Writ of Mandate which approved the
Loewenstein lot line adjustment in compliance with the
original trial court ruling on the administrative mandate
cause of action. This had the effect of restoring to the
Loewensteins their land, as the City then abandoned the
course of action which gave rise to just compensation
damages for a permanent regulatory taking.
B. The City pursued an appeal on the issue of a
temporary regulatory taking. The parties agreed that the
City’s abandonment of its legal position on which the
denial of the lot line adjustment was based rendered the
regulatory taking temporary. (First English Evangelical
Lutheran Church of Glendale vs. County of Los Angeles,
482 U.S. 304, 321 (1987) — after taking occurs, the gov-
ernment retains the option to withdraw an invalidated
regulation.) The trial court itself had no occasion to actu-
ally consider a ruling on the issue of a temporary taking as
the Order purporting to reopen the case to determine
whether the change of position had affected the amount of
damages was filed beyond the statutory time period in
which the court could have ruied on a new trial motion
and the motion was therefore denied by operation of law.
California Code of Civil Procedure Section 660.
C. The Court of Appeal reviewed the Evidentiary
Record amassed at trial and reached its own independent
conclusion after its independent review and reweighing of
the evidence, that no temporary regulatory taking had
occurred, thereby reversing a trial court judge who
awarded just compensation for a permanent regulatory
15
taking. The Court of Appeal gave no deference to the
factual findings of the trial court which were supported by
substantial evidence and which would have supported an
award of damages for a temporary taking under the
doctrine of First English.
The Opinion of the California Court of Appeal is
objectionable on numerous bases. In part, it is certainly
the case that the Court of Appeal chose to independently
review the record and make its own factual findings in
derogation of the well known rule which requires appellate
courts to defer to trial courts on factual issues so long as
such factual issues are supported by substantial evidence
in the trial court record. Nonetheless, the Petitioners have
not sought review in this Court simply to rectify a mani-
fest injustice based upon application of an improper
standard for appellate review of factual findings. Instead,
Petitioners seek this Court’s review because that decision
effectively eliminates temporary takings damages in
California by virtue of its conclusion that essentially any
erroneous regulatory action requiring judicial review and
challenge is simply non-compensable “normal” delay
encountered as part of the regulatory process. The Court
of Appeal Decision conflicts with this Court’s opinions in
First English and Lucas vs. South Carolina, 505 U.S. 1003
(1992), which makes available to an aggrieved landowner
just compensation damages for a temporary taking of his
land. Further, the Court of Appeal Decision cenflicts with
this Court’s holding in Agins vs. City of Tiburon, 447 U.S.
255 (1980) and Nollan vs. California Coastal Commission,
483 U.S. 825 (1987), in which it was expressly held that
the failure of regulatory action to substantially advance
legitimate government interests might, in and of itself,
cause a taking for which just compensation damages are
recoverable.
16
Finally, the Court of Appeal Decision is in direct
conflict with a recent opinion of the Wisconsin Supreme
Court in which the latter court simply declined to follow
California’s Landgate rule, as it specifically held that a
judicial challenge to administrative regulation is not a
“normal part” of the regulatory process.
&
vy
REASONS FOR GRANTING THE WRIT
A. THE HOLDING OF THE CALIFORNIA COURT
_OF APPEAL THAT LITIGATION REGARDING
THE ERRONEOUS APPLICATION OF A LAND
USE REGULATION WHICH RESULTED IN
DENIAL OF A DEVELOPMENT PROJECT IS
SIMPLY A “NORMAL” PART OF THE DEVEL-
OPMENT PROCESS REQUIRING NO COM-
PENSATION DIRECTLY CONFLICTS WITH
THE FIFTH AMENDMENT AND ITS RE-
QUIREMENT FOR PAYMENT OF JUST COM-
PENSATION FOR A REGULATORY TAKING AS
SET FORTH IN FIRST ENGLISH
In Agins us. City of Tiburon, 447 U.S. 255 (1980)
(Agins), this Court acknowledged that the application of a
General Zoning law to particular property effects a taking
if the ordinance does not substantially advance legitimate
state interests or denies an owner the economically viable
use of his land. The California Supreme Court had previ-
ously determined that the landowner could not recover
damages for inverse condemnation even if zoning ordi-
nances as applied to the land had constituted a taking.
That court had held that only mandamus and declaratory
relief were remedies available to such a landowner. (Agins
ie it ica
17
us. City of Tiburon, 24 Cal. 3d 266 (1979)). In Agins, this
Court concluded that no taking had occurred and, there-
fore, “ ... we need not consider whether a state may limit
the remedies available to a person whose land has been
taken without just compensation.” Jd. @ 263.
In First English Evangelical Lutheran Church of
Glendale vs. County of Los Angeles, 482 U.S. 304 (1987)
(First English), this Court addressed the remedial ques-
tion which was left unanswered in Agins, due to concerns
over finality. This Court noted that the California Su-
preme Court may not have actually disavowed its general
rule in Agins, but it had truncated that rule by disallowing
damages that occurred prior to the ultimate invalidation of
a challenged regulation. Therefore, this Court held that
where government activities have already worked a taking
of all use of property, no subsequent action by the govern-
ment can relieve it of the duty to provide just compensa-
tion for the period during which the taking was effective.
The opinion in First English then added an important
disclaimer: The decision was limited to the facts presented
and did not deal with the quite different questions that
would arise in the case of “normal delays” in obtaining
building permits, changes in zoning ordinances, variances,
and the like. Jd. @ 321.
In Landgate Inc. vs. California Coastal Commission,
17 Cal. 4th 1006 (1998), (Landgate) the California Su-
preme Court gave lip service to First English and its
holding that a temporary taking of property due to invalid
regulation might be compensable. In fact, the California
Supreme Court acknowledged that its own decision in
Agins had been repudiated by First English. Nonetheless,
the majority of the Supreme Court in Landgate, concluded
18
that the mistaken assertion of jurisdiction over develop-
ment is part of the development approval process and
delays that result by reason of judicial review may be
imposed without a just compensation obligation. In effect,
Landgate represents a return by the California Supreme
Court to its Agins doctrine prior to issuance of this Court’s
First English opinion, as Landgate held that judicial
challenges to wrongful regulatory action were merely a
“normal” part of the regulatory process. Landgate did
acknowledge an extremely narrow exception to the forego-
ing rule in apparent deference to First English: If a regu-
latory position was so unreasonable from a legal
standpoint as to lead to the conclusion that it was taken
for no purpose other than to delay the development project
before it, a temporary taking might be deemed to have
occurred since such a delaying tactic would not advance
any valid government objective.
In his dissent in First English, Justice Stevens argued
unsuccessfully that “Litigation challenging the validity of
a land use restriction gives rise to a delay which is just as
‘normal’ as an administrative procedure seeking a vari-
ance or an approval of a controversial plan.” See First
English, 482 U.S. @ 334-335.
In dissent of the majoritys opinion in Landgate,
Justice Chin contended that “[wJhen a regulatory agency
prohibits all use of a particular property, and the property
owner is forced to sue the agency to get it to change its
position, its stonewalling is not fairly characterized as a
‘normal delay in the permit approval process.” See Land-
gate, 17 Cal. 4th at 1205. Justice Brown also dissented and
concluded that when wrongful assertions of jurisdiction
that leave property economically valueless “can be con-
verted into ‘the recognition that a judicial determination of
'
19
the validity of certain preconditions to development is a
normal part of the development process,’ then, in Califor-
nia, at least for now, Lucas is a dead letter.” See Landgate,
17 Cal. 4th at 1043.
The California Supreme Court majority opinion in
Landgate, and the Court of Appeal in this case, have used
the “normalcy” standard announced in First English to
reject the majority opinion of that case and to adopt the
position of Justice Stevens in dissent. It was Justice
Stevens who argued that wrongful regulatory action
requiring judicial intervention was but part of the regula-
tory process for which delay was “normal” and to be
expected. The Landgate majority did slightly modify the
Stevens dissent in a nod to this Court’s majority opinion
by holding that an agency's legal position might be so
transparently unreasonable that it must be deemed to
have been adopted solely for purposes of delay. As the
application of Landgate to this case indicates, however,
that exception is more imaginary than real. Landgate
actually represents a return to California law as it existed
prior to this Court’s Agins opinion, and both Landgate and
this case directly conflict with First English.
In this case, the City and the District which sold the
Loewensteins the subject Tank Lot both anticipated that
said lot might be rendered developable through reconfigu-
ration with adjoining lots pursuant to California’s lot line
adjustment statute (Government Code Section 66412(d)).
The Tank Lot was only offered to adjoining landowners in
recognition of this circumstance. It was concededly a legal,
pre-existing parcel so that subdivision was not involved in
any way, shape or form. Despite the straight-forward
language of Government Code Section 66412(d) and its
own prior expectations, the City took the position that the
lot line adjustment sought by the Loewensteins was
20
inappropriate and that a development application clearly
exempt from the Subdivision Map Act process should
somehow be reviewed as though it was a subdivision.
Two trial court judges found the City’s legal position to
be utterly unjustified, foreclosed by statute and case law.
Nonetheless, on this same record, the California Court of
Appeal characterized the assertion of wrongful regulatory
jurisdiction as nothing more than “an honest difference of
opinion” requiring litigation over threshold issues which
might not be “transform[ed] ... into a compensable tak-
ing.” Loewenstein vs. City of Lafayette, 103 Cal. App. 4th
718, 736 (2002). If the facts of this case are insufficient to
qualify it for the narrow exception to Landgate’s “nor-
malcy” rule then First English is a “dead letter” in Cali-
fornia as temporary takings damages simply may not be
recovered whenever delays are encountered due to wrong-
ful regulatory action.
The majority opinion in First English specifically
rejected the proposition that litigation over a wrongful
regulatory action was a normal part of the development
process in much the same fashion as building permits,
variances and zoning ordinances. As is evident in this
case, the California Courts have elected to misconstrue
and misapply the normalcy standard announced by Chief
Justice Rehnquist. As decided, this case directly conflicts
with the holding of First English, which would not excuse
wrongful regulatory decisions requiring judicial interven-
tion as merely “normal delay”.
The California Courts have been intransigent in their
refusal to follow First English and its requirement for
payment of just compensation in the event of a regulatory
taking. This case offers this Court the opportunity to not
merely resolve the conflict of California decisions with the
21
Court’s opinion in First English, but also to better define
those circumstances which might truly be regarded as
“normal delays” requiring no compensation.
The protection of property ownership is a fundamental
theme in American constitutional thought. This case
affords this Court the opportunity to clarify its prior
pronouncements regarding temporary takings jurispru-
dence and to correct an unconstitutional State Court
decision.
B. THE COURT OF APPEAL DECISION WHICH
HOLDS LITIGATION OVER WRONGFUL
REGULATORY ACTION TO BE BUT A NOR-
MAL PART OF THE REGULATORY PROCESS
CONFLICTS WITH DECISIONS OF THE WIS-
CONSIN SUPREME COURT
The Wisconsin Supreme Court decided Eberle us.
Dane County Bd. of Adjustment, 595 N.W. 2d 730 (1999),
shortly after the California Supreme Court decision in
Landgate. The issue was whether or not the Eberles had
successfully stated a valid claim for a temporary regula-
tory taking under the Wisconsin and United States Consti-
tutions. The Eberles had unsuccessfully pursued an
application for a special exceptions permit so that they
might build a driveway access to their land. The denial of
that permit by the local agency had the effect of cutting off
all access. The Court held that a complete lack of legal
access to land constituted a deprivation of all economically
feasible use. As the Court observed, “The Eberles could
hardly be expected to parachute onto their property in
order to use it.” Id. @ 740. The Wisconsin Supreme Court
construed First English as requiring just compensation for
a temporary taking in the event judicial action is required
to overturn a wrongful regulatory decision which had the
22 .
effect of depriving a landowner the economically feasible
use of his land.
In Footnote 25 of its decision, the Wisconsin Supreme
Court noted that it had been urged to adopt the reasoning
of the majority opinion in Landgate. It declined to do so.
The Wisconsin Supreme Court pointed out that the argu-
ment of the majority in Landgate was clearly considered
and rejected by this Court in First English, since Justice
Stevens made the same argument as did the Landgate
majority in his dissenting opinion in First English. The
Wisconsin Supreme Court felt that the eventual receipt of
permit approval might not convert an actual taking into a
mere delay.
The Wisconsin and California Supreme Courts have
each construed and applied the First English normalcy
standard and temporary takings doctrine in conflicting
fashion. Only this Court can resolve that conflict and
clarify the constitutional question regarding the necessity
for just compensation when wrongful regulatory action
requires judicial intervention.
C. THE DECISION OF THE COURT OF APPEAL
CONFLICTS WITH THIS COURT'S OPINIONS IN
AGINS AND NOLLAN IN ITS HOLDING THAT A
PARTICULAR LAND USE REGULATION WHICH
IS A PART OF A REASONABLE REGULATORY
PROCESS CANNOT BE DEEMED TO HAVE
FAILED TO SUBSTANTIALLY ADVANCE LE-
GITIMATE GOVERNMENT INTERESTS AS AP-
PLIED
In Agins, 447 U.S. @ 260, this Court stated that the
Fifth Amendment is violated when land-use regulation
“does not substantially advance legitimate state interests
23
or denies an owner economically viable use of his land.” In
Nollan vs. California Coastal Commission, 483 U.S. 825
(1987) (Nollan), this Court held that a use restriction may
constitute a taking if it is not reasonably necessary to
effect a substantial government purpose. This Court
further noted that its cases have not elaborated on the
standards for determining what constitutes a legitimate
state interest or what type of connection between the
regulation and the state interest satisfies the requirement
that the former substantially advance the latter. A legiti-
mate state interest which is substantially advanced by
regulatory action compels a finding that imposition of the
regulation does not require payment to the landowner of
just compensation so long as it does not deny use of the
property in such drastic fashion as to constitute a taking.
This “substantially advance” standard requires stricter
scrutiny than simply asking if the government rationally
decided the matter. This Court noted that it viewed the
Fifth Amendment property clause to be more than a
pleading requirement and compliance with it to be more
than an exercise in cleverness and imagination. The
condition for abridgement of property rights requires a
substantial advancement of legitimate state interests.
This essential nexus between legitimate state interest
and government regulation required by Nollan is utterly
missing in this case. The creative and speculative justifi-
cations advanced by the Court of Appeal in support of the
City’s regulatory action in denial of the Loewenstein Lot
Line Adjustment Application utterly conflict with Nollan
in that there were no objectively identifiable legitimate
government interests which were advanced by the City’s
wrongful regulatory action. A grant of Certiorari will
afford this Court the opportunity to elaborate on the
standards for determining what constitutes a legitimate
24
state interest and for correcting a decision which conflicts
directly with Agins and Nollan.
After a full evidentiary hearing in this case, the trial
court concluded that the City’s denial of the Loewenstein
Lot Line Adjustment Application failed to advance any
legitimate state interest. That decision was certainly
based in part upon the lack of credibility the trial court
attributed to the City’s principal witness and the fact that
the City routinely processed hundreds of lot line adjust-
ment applications while denying only the Loewenstein
application. On the other hand, the trial court noted that
many legitimate state interests, including, but not limited
to, the conversion of non-conforming lots into conforming
lots and rendering lots sufficient in size to accommodate
development compatible with the surrounding neighbor-
hood, would actually have been substantially advanced
had the City approved the Lot Line Adjustment Applica-
tion.
The Court of Appeal isolated the entire inquiry re-
garding the legitimate government interest which the City
~ allegedly sought to further by means of denial of the
Loewenstein lot line adjustment to the reasons given for
rejecting that application expressed in City Resolution 69-
98. As set forth therein, the Citys alleged legitimate
government interests were based on concerns that the
reduced area of the new parcel after lot line adjustment
would fail to conform to minimum lot size requirements
for hillside lots and that the application created a fifth lot
in a duly restricted subdivision with improvements and
utilities designed for four lots.
The Court of Appeal conceded that the City incorrectly
maintained that lot size requirements for subdivision
applied as well to existing hillside lots which were merely
25
to be reconfigured by lot line adjustment; however, the
monitoring of hillside slope density requirements for
subdivisions were still held to be matters of legitimate
government interest even if erroneously applied. The
Court of Appeal also held that the prohibition against
further subdivision imposed by the City in 1977 as a part
of subdivision map approval was a legitimate exercise of
government policy and regulatory authority.
The problem with the Court of Appeal decision and its
approval of so-called legitimate government interests
furthered by the City’s action in this case is that the
concerns for hillside lots and the prohibition against
further subdivision may have been reasonable or even
permitted as a matter of general zoning law; however,
those concerns as applied simply lacked any “essential
nexus” to the City’s regulatory action which denied the
Loewenstein Lot Line Adjustment Application.
The entire record of proceedings in this case makes
clear that all three of the lots involved in the Loewenstein
lot line adjustment fully conformed with all building and
zoning ordinances after reconfiguration through lot line
adjustment — but not before. If hillside property required
particular oversight (as suggested by the Court of Appeal)
then, objectively, the City should have approved — rather
than denied — the lot line adjustment. Both the Court of
Appeal and the City Resolution voiced concerns that the
reduced area of the reconfigured parcels would fail to
conform with requirements for hillside lots. The only
evidence in the record unequivocally demonstrates, how-
ever, that alleged legitimate government interests regard-
ing lot size requirements for hillside lots could only be
substantially advanced by approval of the Loewenstein lot
line adjustment — as opposed to its denial. This is because
the Tank Lot prior to lot line adjustment was only
26
approximately twenty percent of the land area required by
the City to conform with the zoning district and only five
percent of the required land area for a hillside lot subject
to slope density regulation. After lot line adjustment, the
Tank Lot was substantially larger than required by the
zoning district and sufficient in size to meet hillside slope
density requirements (which were not applicable in any
case).
Finally, the City’s Resolution and the Court of Appeal
both cited concerns that approval of the lot line adjust-
ment would create a fifth lot “in a duly restricted subdivi-
sion with improvements and utilities designed for four
lots.” Loewenstein vs. City of Lafayette, 103 Cal. App. 4th
718 @ 732 (2002). No evidence exists anywhere within the
entire record of proceedings to the effect that the 1977
subdivision improvements made to adjoining property
might somehow be overburdened by the requirements for
access and utilities for a fifth lot. Moreover the Tank Lot
was a valid legal lot which might be developed if the
absence of access and utilities was overcome. Therefore,
denial of the lot line adjustment had no objective bearing
on this supposed legitimate government interest in avoid-
ing the “creation” of a fifth lot in a restricted subdivision.
The Court of Appeal did not quarrel with the evidence
or trial court finding that approval of the Loewenstein lot
line adjustment would have actually furthered a number
of important and legitimate planning interests. That the
City’s expressed concerns might have been reasonable and
might have even involved legitimate government interests
in the abstract is of no avail if the essential nexus between
regulatory action and those so-called legitimate govern-
ment interests and concerns is lacking as applied. That
the Court of Appeal’s attempt to conform its decision to the
holding of Nollan might be applauded for its cleverness
27
and imagination is_no substitute for lack of an essential
nexus between City regulatory action and any legitimate
City purpose.
This case affords this Court the opportunity to elabo-
rate on the standards applicable for determining what
constitutes a legitimate state interest and the nature of
the relationship between the regulation and the state
interest. If allowed to stand, the Court of Appeal decision
would exonerate any regulatory action from being consid-
ered a regulatory taking so long as such action might be a
part of a reasonable legislative scheme even if, as applied,
no essential nexus between the regulatory action and a
legitimate government interest existed.
It is a teaching of Agins and Nollan that the govern-
ment’s regulatory action must substantially advance some
legitimate government purpose for there to be an abridg-
ment of property rights, absent compliance with the Fifth
- Amendment’s requirement for payment of just compensa-
tion. It makes no difference whether or not a landowner is
left with economically feasible use or value of his land
while subject to regulation if the regulation is imposed
witiiout furthering any legitimate government interest.
D. REGULATORY ACTION WHICH PREVENTS
ACCESS TO LAND OR RENDERS UTILITIES
UNAVAILABLE MUST BE DEEMED TO HAVE
DEPRIVED A LANDOWNER OF ALL ECO-
NOMICALLY FEASIBLE USE OF HIS LAND SO
THAT JUST COMPENSATION MUST BE PAID
AS SET FORTH IN LUCAS
This Court has described at least two discrete catego-
ries of regulatory action as compensable without case
specific inquiry into the public interest advanced- in
—
_
28
support of the restraint. The first encompasses regulations
that compel the property owner to suffer a physical “inva-
sion” of his property. In general, no matter how minute the
intrusion, and no matter how weighty the public purpose
behind it, compensation has been required. See Loretto vs.
Teleprompter Manhatten CATV Corp., 458 U.S. 419 (1982).
The second situation in which this Court has found cate-
gorical treatment appropriate is where regulation denies
all economically beneficial or productive use of land.
In Lucas vs. South Carolina Coastal Council, 505 U.S.
1003 (1992) (Lucas), this Court acknowledged that the
rhetorical force of the “deprivation of all economically
feasible use” rule is greater than its precision, since the
rule does not make clear the “property interest” against
which the loss of value is to be measured. The result has
been inconsistent pronouncements by the Court. In Lucas,
it was suggested that the answer to the difficult question
of “deprivation” might lie in how the owner’s reasonable
expectations had been shaped by the state’s law of prop-
erty — whether and to what extent the state’s law has
accorded legal recognition and protection to the particular
interest in land with respect to which the takings claimant
alleges a diminution in (or elimination of) value.
In Eberle vs. Dane County Bd. of Adjustment, 595
N.W. 2d 730 (1999), the Wisconsin Supreme Court
unequivocally held that a lack of access caused by
regulatory action must be deemed to ave denied the
landowner all economically feasible use of his property.
This Court has made no corollary pronouncement.
In this case, the Court of Appeal observed that “the
Loewensteins were not prevented fiom building a resi-
dence on the Tank Parcel if they could supply access and
29
were not prevented from supplying an access.” Loewen-
stein us. City of Lafayette, supra, 103 Cal. App. 4th @ 733.
The only evidence in the court record unequivocally
indicated that the Tank Lot was without any legal means
of access or utilities. These circumstances were described
in the analysis prepared by the District prior to sale of the
Tank Parcel and were incorporated into the City’s own
Resolution which denied the Lot Line Adjustment Applica-
tion. The only evidence in the record indicated that neither
access nor utilities might be afforded the Tank. Lot in the
absence of the lot line adjustment the City denied. The
Court of Appeal is correct that the City did not prevent the
Loewensteins from supplying an access; its decision simply
made that impossible. Similarly, the City’s regulation did
not prevent the Loewensteins from building a residence on
the Tank Lot if they could supply access and utilities -
which they, of course, could not.
The grant of Certiorari in this case would enable this
Court to add precision to its formulation of its “deprivation
standard” and would also enable this Court to reconcile
conflicting decisions between the Wisconsin Supreme
Court holding that the denial of access satisfied “depriva-
tion” requirements and the California Courts’ holding that
the practical effect of regulatory action might be ignored so
long as there is no express regulation which, by its terms,
causes “deprivation”.
4
ae
CONCLUSION
Determinations of liability in regulatory takings cases
are “essentially ad hoc, factual inquiries”. Lucas, 505 U.S.
@ 1015. In this case, those factual inquiries occurred at
trial from which factual findings were made and the
30
conclusion was reached that the City of Lafayette deprived
the Loewensteins of all economically feasible use of their
land through regulatory action to their damage for no
particular purpose without advancing any government
interest.
The Court of Appeal made no factual inquiries, but did
speculate regarding improbable development opportunities
for the land in question and plausibly legitimate general-
ized interests which might have sustained regulatory
action, but for the fact that the essential nexus between
these generalized interests and the subject regulatory
action was missing.
On the authority of Landgate, the Court of Appeal
held that the City’s wrongful and unjustifiable assertion of
regulatory jurisdiction was but a usual and ordinary part
of the “normal” regulatory process. If the Court of Appeal
decision is allowed to stand, then this Court’s holdings in
First English, Nollan, and Lucas, have academic interest
but no practical application in California.
It is respectfully submitted that this Petition for Writ
of Certiorari should be granted if the rhetorical force of
this Court’s opinions is to be given any practical effect.
Dated: May 12, 2003
Respectfully submitted,
DAVID J. BOWIE
Counsel of Record
BOWIE & BRUEGMANN, LLP
1700 N. Broadway, Suite 350
Walnut Creek, CA 94596
(925) 939-5300
Attorneys for Petitioners
INDEX TO APPENDIX
Published Decision of the California Court of
Appeal, First District, Division One [Filed
November 13, 2002, review denied]. 103 Cal
WI PE WI ieicacescskesnnnenitcecieisecesicccsce App. 1
Order in Re Denial of Petition for Rehearing
filed December 10, 2002..........c.cccceccccccceccececcees App. 31
Order in Re Denial of Petitio:, for Review,
California Supreme Court filed February 11,
NIT hinds sinsasialchadiniteedemscdisddaisecs ie) App. 32
Remittitur, Notice from the Clerk of the Court
of Appeal that the Decision of the cause is fi-
nal entered February 18, 2008 ...........e.c00........ App. 33
Notice of Entry of Judgment and Judgment
After Appeal, Contra Costa County Superior
Court filed April 8, 2003 oo......cecccccccccccecceccecees App. 35
City of Lafayette, City Council Resolution No.
69-98 Adopted August 10, 1998....................... App. 41
Order Granting Petition for Writ of Mandate
et i eg i eS aC Ne App. 59
Peremptory Writ of Mandate filed November
Wiis: SITET neseanenastibindiotiniabeseeneicidtenieiaiidaantaliadc sot App. 61
Return To Peremptory Writ of Mandate filed
I a i a App. 64
Decision and Order Re: Ripeness filed Janu-
a NERS OTN Oe Date T oe ee ee App. 66
Order Re Tentative Ruling filed April 24,
I ies atecbetetideinetiaeseinibeih tatiesabbiliciineigs es cat to App. 68
Notice of Recusal filed May 30, 2000............... App. 71
Statement of Decision filed July 3, 2000.......... App. 72
Minute Order filed August 4, 2000................... App.83 |
15.
16.
17.
18.
19.
ii
INDEX TO APPENDIX — Continued
Notice of Entry of Judgment filed October 10,
IEEE taisiinininititepnicidinnpnicistinnthintaiaaniidlgindeieaintideueitic App. 98
Amended Return To Peremptory Writ of .
Mandate filed November 16, 2000................. App. 103
City of Lafayette, City Council Resolution No.
78-00 Adopted November 27, 2000................. App. 106
Order In Re Motion For New Trial filed
SII Bi, Be cncccinscsinccenienscnciccwreseyioninnies App. 109
Notice of Appeal filed December 27, 2000..... App. 111
App. 1
Filed 11/13/02
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
PETER G. LOEWENSTEIN
et al., A093590
Plaintiffs and Appellants, | (Contra Costa County
7 Super. Ct. No. C98-03977)
CITY OF LAFAYETTE,
Defendant and Appellant.
The City of Lafayette (City) appeals from a judgment
ordering it to pay just compensation for the delay caused
by its erroneous denial of property owners’ lot line adjust-
ment application. Respondents, the Loewensteins, pur-
chased a small, landlocked parcel, intending to use it as
part of a division of an existing property without having to
resort to the Subdivision Map Act (SMA). (Gov. Code,
§ 66410 et seq.)' When the City refused to allow the
desired reconfiguration by a lot line adjustment, respon-
dents obtained a ruling that the City erred and they were
entitled to compensation. The central issue presented in
this appeal is whether a two-year delay precipitated by the
City’s erroneous action is an unlawful temporary taking of
private property for a public use. Our Supreme Court, in
Landgate, Inc. v. California Coastal Com. (1998) 17
' All statutory references are to the Government Code.
App. 2
Cal.4th 1006 (Landgate), resolved the same issue and
replied in the negative. Under the facts of this case, we are
bound to follow the rationale of that decision and reverse.
FACTUAL BACKGROUND
In 1984 or 1985, attorney Peter Loewenstein and his
wife, Helen Loewenstein, built a 4400 square-foot home on
a lot of approximately three acres in the City. The lot was
created as part of a 1977 subdivision of four lots that
included a restriction on creating any additional lots and
was located in an area of lots with a greater than 15
percent slope, designated as hillside land. The area was
zoned R-20 which provided for a minimum lot size of
20,000 square feet, or approximately one-half acre. When
they bought the property, the Loewensteins understood
that it could not be subdivided without City approval.
Retween 1989 and 1992, the Loewensteins discussed
building a second home on their three-acre lot. Peter
Loewenstein engaged attorney Colette Stone to investigate
the prospect of dividing the lot to allow him to build a
second house. Loewenstein told Stone that with a property
as large as his, there must be a mechanism by which he
could divide it.
In reviewing the conditions of approval of the original
subdivision, Stone discovered that the number of lots in
the subdivision was restricted to the four existing lots.
Stone determined that compliance with the subdivision
procedure was an undesirable alternative. Stone spoke
with various city planners and learned the requirements
for obtaining a lot line revision. The lot line adjustment
exception to the SMA stated that the adjustment could not
create a greater number of parcels and that the affected
App. 3
parcels must conform to local zoning and building ordi-
nances. (Gov. Code, §§ 66410, 66412, subd. (d).) Unlike a
subdivision proposal, a lot line revision involved only a
ministerial decision by the City’s Planning Services
Manager, Michael Henn.
Stone understood the Loewensteins would need to
acquire additional property to develop a second building
site under the lot line revision procedure. If they did not
purchase a second parcel, the plan to divide their lot would
have been subject to the subdivision process, as the lot line
adjustment exemption does not apply if the adjustment
creates an additional lot. (§ 66412, subd. (d).) Stone’s plan
was to merge a smaller new lot into the existing lot, then
divide the merged property into two lots. Stone would
argue that the lot line adjustment only resulted in enlarg-
ing the newly acquired second parcel, which was outside
the subdivision, rather than splitting the existing lot into
two lots.
Stone learned that East Bay Municipal Utility District
(EBMUD) had declared as surplus a small, neighboring
parcel, formerly the site of a water tank. The parties refer
to that parcel as the “tank parcel.”* In early 1996, the
Loewensteins purchased the tank parcel for $13,500,
which was EBMUD’s computed fair market value of
* Through Stone’s inquiries, the Loewensteins learned that there
were two undeveloped adjacent properties available. One of the
undeveloped properties was 19 acres and the other was one-tenth of an
acre. Ultimately, the Loewensteins decided that acquisition of the
larger parcel was economically unfeasible and focused on the smaller
parcel.
App. 4
property in Lafayette at that time.’ The tank parcel shared
a common corner with the Loewensteins’ existing lot, but
did not share a boundary. They bought it “as is,” knowing
that it was only 4500 square feet and that it had no road
or utility access. In his lot line adjustment application to
the City, Peter Loewenstein stated that the tank site had
no value. However, he knew that it was a legal non-
conforming lot on which a single-family residence could be
built if the site had utility and road access.
Miller, the neighboring property owner, orally agreed
to give the Loewensteins a small triangular-shaped section
of his land so that the tank parcel would share a common
boundary and could be merged into their lot. Absent
acquisition of the triangular piece of Miller’s property, they
had no access to the tank parcel. The Loewensteins never
applied to the City for a lot line adjustment to adjust only
the boundary of the Miller property to establish access.‘
On September 11, 1997, the Loewensteins applied for
a three-way lot line adjustment. The proposed lot line
adjustment would have added the triangular portion of the
Miller lot to the Loewensteins’ lot, merged the tank parcel
into the Loewensteins’ lot, and divided that three-acre lot
into Parcel 1 and Parcel 2. Parcel 1, containing the
* In accordance with the applicable provisions of the Government
Code, EBMUD first offered the tank parcel to the City. The City
declined to purchase it and recommended that EBMUD sell the lot to
an adjoining property owner, who could merge the land, or create a
more useable lot through a lot line revision.
* Although Miller did not oppose Loewenstein’s plan to build a
second house, Loewenstein testified that Miller was “extremely adverse
to any type of subdivision.”
——
App. 5
Loewensteins’ home, would have been reduced to 1.07
acres and Parcel 2, the former back portion of the lot, now
including the tank parcel, would have been 2.12 acres.
Stone hand carried the application to Michael Henn
and waited for him to sign off on it. Instead, a series of
communications ensued explaining why the application
was not being processed. Henn deferred to City Attorney
Charles Williams, who was reviewing the application.
While Stone characterized the process as merely expand-
ing the smaller tank parcel into a larger conforming lot,
the City viewed the application as a splitting of the
Loewensteins’ existing lot within the subdivision. Stone
later testified that neither the planning commission nor
the city council gave her any advance assurances that a lot
line adjustment application would be approved.
Ultimately, the City denied the lot line adjustment
application, and the Loewensteins then appealed that
decision to the Lafayette City Planning Commission
(commission). The commission denied the appeal, stating
that the proposed action would place a fifth lot and house
in a subdivision that was restricted to four lots. The
commission also made a finding that the proposed adjust-
ment would not be consistent with local zoning because it
would reduce the lot area of the proposed new parcels to
1.07 and 2.12 acres which did not conform to the minimum
lot area requirements of the municipal code, based on the
average slope of lots defined as hillside land. In the com-
mission’s opinion, the lot line revision proposal was a
circumvention of the normal subdivision requirements.
The commission’s decision was appealed to the city
council. On May 11, 1998, that body issued a resolution
denying the adjustment. Additional hearings were held
App. 6
before the city council on June 22, 1998, July 27, 1998, and
August 10, 1998. Peter Loewenstein explored filing a
subdivision application after the city council issued its
May 11 resolution, but determined that he did not want to
risk a denial of such an application, in light of the time
‘and expense involved. Loewenstein asked the city council
to amend the former resolution to make the denial effec-
tive immediately so that a court challenge could be insti-
tuted. On August 10, 1998, the city council complied, and
issued a second denial in Resolution No. 69-98, that
superceded the original denial.
Resolution No. 69-98 recited the underlying facts of
the lot line adjustment application and determined that a
fifth lot could not be authorized in the subdivision without
compliance with the City’s subdivision regulations and the
SMA. The resolution stated that approving the Loewen-
steins’ application would have the effect of creating a new
lot, and of creating a fifth lot in the restricted subdivision.
It acknowledged the Loewensteins’ view that they were
not creating a fifth lot because they were adding approxi-
mately two acres of their lot to the tank parcel, which was
outside the subdivision. The resolution determined that
the building site for the proposed residence would be on
the split-off portion of the original lot, rather than on the
tank parcel, resulting in a fifth lot serviced by infrastruc-—
ture and improvements constructed for the original four-
lot subdivision. A specific building site was not a part of
the application. The resolution concluded that the Loewen- .
steins’ proposal deprived the City of its authority over
subdivisions and allowed the Loewensteins to avoid the
mandatory and discretionary requirements that are a part
of the subdivision process.
App. 7
On September 24, 1998, the Loewensteins filed a
complaint in superior court seeking administrative man-
damus, ordinary mandamus, declaratory relief and dam-
ages for inverse condemnation under the takings clause of
the Fifth Amendment of the United States Constitution.
The parties submitted the case to Superior Court
Judge Richard L. Patsey, based on the administrative
record, oral argument and documents evidencing the
legislative history of the lot line adjustment exception to
the SMA. (§ 66412, subd. (d).) On March 9, 1999, Judge
Patsey filed an order granting the petition for writ of
mandate, stating “granting the lot line adjustment would
not violate any zoning, building or slope density ordi-
nances or regulations of [rlespondent City of Lafayette.
Thus, whether the standard of review be substantial
evidence or arbitrariness, [rJespondent City of Lafayette’s
denial has no support in the administrative record.” Judge
Patsey rejected the Citys argument that the section
66412, subdivision (d) exception for lot line adjustments
was not applicable, stating that there was no restriction in
the Government Code against creating a greater number
of parcels within a subdivision, but only against creating a
greater number of parcels than previously existed.
The Loewensteins filed a memorandum of costs that
claimed attorney fees under section 800, providing for fees
when the “determination of the proceeding was the result of
arbitrary or capricious action or conduct by a public entity or
an officer thereof in his or her official capacity, ... ” The
court granted the City’s motion to tax costs, stating that
denial of the lot line adjustment application was not
arbitrary and capricious within the meaning of section
800.
: App. 8
At the April 1999 hearing on the motion to tax costs,
Judge Patsey characterized the case as “a very close and
... difficult case” and acknowledged that the legislative
history supported the City’s argument and that the City’s
contention that it should be able to control development
“made a good deal of sense.” The court continued: “This
was no minor lot line adjustment by any stretch of the
imagination in my view and, therefore, I had to wrestle
with the question whether or not the result of burdening a
subdivision with five homes by this lot line adjustment,
where it was originally designed to accommodate four
homes, was appropriate and lawful.” The court concluded:
“[Bly no stretch of the imagination can I say, given the
wrestling I did with this issue, that the City’s position was
arbitrary or capricious.” On November 3, 1999, the court
issued its writ of mandate ordering the City to set aside its
denial of the application and reconsider its action in light
of the court’s decision.
In August of 1999, the parties submitted issue confer-
ence statements on the takings issue. The Loewensteins
argued that denial of the lot line adjustment application
constituted a taking of their property without just compen-
sation. The City argued the legal issues of ripeness and
that its action was not a taking under Landgate, supra, 17
Cal.4th 1006.
On January 27, 2000, Judge Patsey issued an order
rejecting the City’s ripeness argument, stating that it
would be futile for the Loewensteins to proceed with an
application under the SMA and that there was no possibil-
ity that the landlocked tank parcel could be developed
independent of the residential parcel.
App. 9
On April 24, 2000, Judge Rivera, to whom the case
had been reassigned, issued an order regarding the City’s
argument that Landgate precluded a finding of inverse
condemnation as a matter of law. That order consisted of
two findings. The first finding was that: “[t]he court
cannot find on the record presented that the City’s action
was so objectively unreasonable that it was made for no
other reason than to delay the proposed project. To the
contrary the City’s decision, though erroneous, was ra-
tional and, as stated by Judge Patsy [sic], not arbitrary or
capricious. Nor can a delay of a little over two years for
processing the application, the administrative appeals and ~-
this litigation be considered an unreasonable delay that
results in a taking.” Despite the finding that the regula-
tory delay alone did not amount to a taking, the court
without elaboration found there were disputed issues of
fact and referred the issue for trial of what the order
_ characterized as “the remaining theory for taking” under
Penn Central Transp. Co. v. New York City (1978) 438 U.S.
104 (Penn Central) and Kavanau v. Santa Monica Rent
Control Bd. (1997) 16 Cal.4th 761 (Kavanau). Judge
Rivera subsequently recused herself and the matter was
assigned to Judge Kolin for trial.
The trial court bifurcated the issues of liability for a
taking and the appropriate amount of just compensation.
At the trial, the testimony focused on the nature of the
City’s objections to the application and the potential uses
of the tank parcel.
Planning Services Manager Michael Henn testified
that the conditions of approval of the Loewensteins’
subdivision restricted it to four lots. The restriction was
supposed to be formalized though the recordation of a scenic
easement deed. He did not believe the scenic easement deed
App. 10
had ever been recorded.” He stated if the tank site had
road and utility access, a two-story, 3150 square-foot
residence could be constructed on the site. In Henn’s
opinion, if a lot line application had been filed merely
seeking to transfer the triangular portion of the Miller
property to the Loewensteins and provide access to the
tank parcel, it would not be considered a subdivision and
would have been routinely granted.
On July 3, 2000, Judge Kolin issued a decision follow-
ing the trial. The court reviewed the case law on inverse
condemnation, noting that a-regulation that deprives a
property owner of all economically beneficial use of the
land effects a taking requiring just compensation. Al-
though the court noted Landgate, it stated that the case
was similar to San Dieguito Partnership v. City of San
Diego (1992) 7 Cal.App.4th 748 (San Dieguito), and deter-
mined that the City had used an improper standard in
evaluating the lot line adjustment application. Based on
Judge Patsey’s findings and the testimony and documents
presented at trial, the court determined that the impact of
the City’s action was to deny the Loewensteins “substan-
tially all economically viable use of their property.” The
court found, on the evidence presented: that the Loewen-
steins could not develop the landlocked tank parcel with-
out the Citys approval of the application; that the
property was without market value because it was pur-
chased only with a view towards the lot line adjustment;
* City planner Elizabeth Van Popering testified that in addition to
the restriction in the subdivision conditions, the conditions of a
variance that the Loewensteins had obtained when they built their
home included the four-lot limitation.
App. 11
that the City’s regulatory action was unrelated to any
substantial public purpose; and that Henn’s testimony
regarding the rejection of the Loewensteins’ application
was not credible in light of the evidence that in 16 years,
over 200 lot line adjustments had been approved.
The court listed three specific findings in its decision:
(1) the Loewensteins purchased the tank parcel with
reasonabie investment-backed expectations that it could
be rendered a buildable lot through the lot line adjustment
process; (2) the economic impact of the City’s regulation
denied all economicaily viable use of the property; and (3)
the City’s regulatory action failed to advance any legiti-
mate state interest and involved tke application of an
arbitrary standard in direct conflict with the plain lan-
guage of section 66412, subdivision (d) and San Dieguito.
The court awarded $611,666.66 in just compensation for
the loss of use of the proposed new parcel as merged with
the tank parcel. The court also awarded costs and attorney
fees to the Loewensteins.
A corrected judgment incorporating the issuance of
the writ of mandate and findings on liability and just
compensation was filed on October 2, 2000. The City
moved for a new trial, which was denied by operation of
law.® The City filed a notice of appeal from the judgment.
* The court filed an order purporting to reopen the case to deter-
mine whether the Citys withdrawal of its rejection of the lot line
adjustment application affected the amount of damages. The order was
filed beyond the statutory time period in which the court could have
ruled on the new trial motion and the motion was therefore denied by
operation of law. (Code Civ. Proc., § 660 [time for ruling on new trial
motion is 60 days after notice of entry of judgment].)
App. 12
The Loewensteins filed a cross-appeal from portions of
Judge Patsey’s order denying attorney fees under section
800.
On November 13 and 27, 2000, the City rescinded its
: denial of the request for a lot line adjustment and with-
ii : drew its legal position on which the denial was based,
thereby rendering the taking temporary. (First Lutheran
Church v. Los Angeles County (1987) 482 U.S. 304, 321
(First Lutheran) [after taking occurs government retains
option to withdraw invalidated regulation].) On May 1,
2001 the City granted the re-submitted lot line adjustment
application.’
a
DISCUSSION
: The Constitution prohibits the government from
taking private property for public use without just
compensation. (U.S. Const., 5th & 14th Amends; Cal.
Const., art. I, § 19.) But the prohibition has limits that
allow the government to fulfill its purpose without paying
for every exercise of the police power. As stated by Justice
Holmes in Penna. Coal Co. v. Mahon (1922) 260 U.S. 393,
“[glovernment hardly could go on if to some extent values
incident to property could not be diminished without
paying for every such change in the general law.” (260 U.S.
" The City’s unopposed request for judicial notice of its formal
withdrawal of the denial of the request for a lot line adjustment and its
May 1, 2001 letter granting the re-submitted lot line adjustment is
granted. (San Mateo County Coastal Landowners’ Assn. v. County of
San Mateo (1995) 38 Cal.App.4th 523, 552-553 [court took judicial
notice of legal opinion letter from county as official act of legislative
department of any state].) |
App. 13
at p. 413.) “The general rule at least is, that while prop-
erty may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking.” (260 U.S. at
p. 415.)
When government regulation denies an owner all
economically beneficial use of the land, a taking is estab-
lished and compensation is due. (Lucas v. South Carolina
Coastal Council (1992) 505 U.S. 1003, 1015.) When the
regulation deprives the owner of something short of all
economically beneficial use, courts consider the factors
identified in Penn Central, supra. Those factors include
“(t]he economic impact of the regulation on the claimant
and, particularly, the extent to which the regulation has
interfered with distinct investment-backed expectations
... [and] the character of the governmental action. A
‘taking’ may more readily be found when the interference
with property can be characterized as a physical invasion
by government, [citation], than when interference arises
from some public program adjusting the benefits and
burdens of economic life to promote the common good.”
(Penn Central, supra, 438 U.S. at p. 124.)
A recent case reconfirmed that the analysis described
in Penn Central, supra, 438 U.S. 104, is still the appropri-
ate method of determining whether a taking has occurred,
in the absence of the categorical takings represented by
actual occupation of the land or where regulation deprives
the landowner of all economically viable use of the land.
(Tahoe-Sierra P. Council v. Tahoe RPA (2002) 535 U.S.
302.)
In First Lutheran, supra, 482 U.S. 304, the United
States Supreme Court addressed the appropriate remedy
when government regulation in fact causes a temporary
ne
App. 14
deprivation of all economically viable use of private prop-
erty. Although the First Lutheran case determined that
compensation was appropriate for a temporary taking, it
did not address the issue of whether the regulatory activ-
ity in that case actually resulted in a taking. The court
stated that it was not addressing “the quite different
questions that would arise in the case of normal delays in
obtaining building permits, changes in zoning ordinances,
variances, and the like which are not before us.” (/d. at p.
321.)
Some of the most difficult questions in “taking”
jurisprudence arise from the issues implicated when a
temporary taking is caused by government regulation and
land use decision making. (See, e.g., Lycett, Landgate, Inc.
v. California Coastal Commission: Why Temporary Tak-
ings Law is “Screwed Up.” (2000) 7 Hastings W.-N.W.J.
Env. L. & Policy 55.) However, our Supreme Court has
directly addressed the subject of temporary taking caused
by delays in issuing land use permits. (Landgate, supra,
17 Cal.4th 1006.) The Landgate court unequivocally
rejected the argument that a temporary loss of all use of
property caused by the erroneous denial of a development
permit necessarily results in a compensable taking. But
the Landgate court also noted that a different case would
be presented if a delay in issuing a permit “was so unrea-
sonable from a legal standpoint” as to support the conclu-
sion that the government agency was only delaying the
development project. (Landgate, supra, 17 Cal.4th at p.
1024.)
In support of the trial court’s decision in this case, the
Loewensteins try to fit this case into the exception for
legally unreasonable acts mentioned in Landgate. They rely
primarily on two cases, San Dieguito, supra, 7 Cal.App.4th
-_—
App. 15
748 and Ali v. City of Los Angeles (1999) 77 Cal.App.4th
246 (Ali), to argue that the City’s legal position was
objectively unreasonable, which precludes reliance on
Landgate.
Alternatively, the Loewensteins contend that even if
the City’s actions did advance a legitimate interest, denial
of the application interfered with their reasonable invest-
ment-backed expectations, caused a direct economic
impact on them, and thus failed the Penn Central analy-
sis.’ We disagree with both contentions for the following
reasons.
The Case Is Governed By the Holding in Landgate
We agree with Judge Rivera’s ruling that the City’s
action was not objectively unreasonable because it was not
taken solely to delay the proposed project. As further
developed by the testimony at trial, even assuming the
City’s decision was erroneous, it was rational and not
arbitrary or capricious.’ In light of the facts developed in
this case, the delay of a little over two years to resolve the
* Because we find there was no taking as a matter of law, we do not
consider the amount of compensation due. However, we note that there
was no evidence that the City restricted the Loewensteins’ ability to sell
the tank parcel, to enter it or to exclude others from it. Peter Loewen-
stein candidly admitted that if there was road and utility access, it was
possible to develop the tank parcel independently. Furthermore,
Loewenstein testified that although he believed the best building site
was on the tank parcel itself, he never submitted an application for a
particular building site or access for the proposed new parcel, or talked
with anyone at the City about a specific building site.
* Because the Ci.y complied with the writ of mandate, the issue of
the correctness of the City’s action is not before us.
App. 16
threshold issue of the availability of the lot line adjust-
ment exception to the SMA was not an unreasonable
regulatory delay. Landgate mandates these conclusions as
we now explain.
The issue analyzed in Landgate was stated by Justice
Mosk as: “whether a delay in the issuance of a develop-
ment permit partly owing to the mistaken assertion of
jurisdiction by a government agency is a type of ‘tempo-
rary taking’ contemplated in First Lutheran, or if it is
more in the nature of a ‘normal delay’ that does not consti-
tute a taking.” (Landgate, supra, 17 Cal.4th at p. 1010.)
The plaintiff in Landgate bought a sloped lot in the Malibu
Hills, subject to the jurisdiction of the California Coastal
Commission (Coastal Commission) that along with a
second lot, had been reconfigured by the prior owners with
the consent of the county. (Jd. at p. 1010.)
When Landgate received county approval for grading
and building a large home on its property, the Coastal
Commission, based on staff recommendations and a
memorandum from the Attorney General, continued the
matter to consider the threshold issue of whether the
earlier lot line adjustment was legal. (Jd. at pp. 1011-
1013.) When the Commission ultimately denied the
application, Landgate filed a petition for writ of mandate
and a complaint alleging a taking without just compensa-
tion. (Id. at p. 1013.)
The trial court granted Landgate’s petition and set
aside the Commission’s denial, stating that the lot line
adjustment was not subject to the Commission’s jurisdic-
tion. The Court of Appeal upheld the trial court’s decision,
stating that the Commission’s position regarding the lot
line adjustment would render the property valueless. After
App. 17
the writ of mandate issued, a modified application was
approved with conditions. (Jd. at pp. 1014-1015.)
Landgate then moved for summary adjudication on its
takings claim, arguing that the erroneous assertion of
jurisdiction to determine the legality of the lot line ad-
justment prevented all economically viable use of the
property. Although the trial court granted Landgate’s
motion and the Court of Appeal affirmed, the Supreme
Court reversed. The Supreme Court summarized applica-
ble takings jurisprudence, culminating with the First
Lutheran case. The court noted that First Lutheran did not
address “normal delays in obtaining building permits,
changes in zoning ordinances, variances, and the like... . ”
(Id. at pp. 1015, 1017, 1032.) “Virtually every court that
has examined the issue has concluded ... that a regula-
tory mistake resulting in a delay does not, by itself,
amount to a taking of property. [Citations.]” (Landgate,
supra,-17 Cal.4th at pp. 1018-1019.) The Landgate court
agreed with the many other courts concluding that “an
error by a governmental agency in the development
approval process does not necessarily amount to a taking
even if the error in some way diminishes the value of the
subject property, ... ” (Id. at p. 1020.)
The court acknowledged that if the government’s error
is “of a particular constitutional type — the passage and
enforcement of a law or regulation that deprives property
of all value — then the teaching of First [Lutheran] is that
such an error is a compensable taking. But government
land use regulations and decisions . . . which, despite their
ultimately determined statutory defects, are part of a rea-
sonable regulatory process designed to advance legitimate
government interests, are not takings of property... .” (Id.
at p. 1021.)
App. 18
Applying the Landgate analysis to this case, there is
no substantial evidence to support the conclusion that the
City’s action was taken for any motive other than carrying
out a substantial government interest. At oral argument of
this appeal, the Loewensteins argued that the trial court
based its decision in part on its determination that Henn’s
testimony was not “persuasive or entirely credible” and
that 200 other lot line applications had been granted in
the past. According to respondents, we are bound by the
trial court’s findings of fact. The legitimacy of a city’s
interest in land use planning, as expressed in the applica-
ble resolution in this case, does not rest on the testimony
of Henn. Henn, who was only the planning services man-
ager, could not have testified as to the intent or legitimacy
of an action by the council.
The trial court’s finding regarding the credibility of
one individual, even if accepted, has little bearing on the
ultimate issue of the local government’s motive. Resolution
of that question is an objective determination, drawn not
from an inquiry into individual motives, but from an
analysis of the evidence supporting the government
agency’s official findings. “The proper inquiry is not into
the subjective motive of the government agency, but
whether there is, objectively, sufficient connection between
the land use regulation in question and a legitimate
governmental purpose so that the former may be said to
substantially advance the latter.” (Landgate, supra, 17
Cal.4th at p. 1022.)
Peter Loewenstein presented evidence of other lot line
adjustments that were approved by the City to the council.
He testified at the trial that he reviewed a number of
applications and selected the best four or five that he felt
would demonstrate why his application should be granted.
App. 19
When asked on cross-examination if any of the applica-
tions concerned a restriction on further subdivision,
Loewenstein answered that he thought, but was not
certain, that one of the applications may have involved
such a restriction. When confronted with the specific
application, he conceded that he had not stated there was
a similar restriction in his presentation to the City. He
also conceded that he had not checked on the particular
restrictions in that application.
Even if Loewenstein had presented evidence that the
City made exceptions to a similar subdivision restriction
in other applications, the existence of exceptions to a valid
policy regarding development would not negate the City’s
showing that the policy was legitimate in this case. Our
Supreme Court flatly rejected a similar argument in
Landgate, stating: “The fact that there may have been
exceptions to this policy, based on considerations particu-
lar to these specific projects, for reasons not present in the
current administrative record and about which we can
only speculate, does not negate the fact that the [Coastal]
Commission had a rational policy preference for concen-
trating development on the south side of De Butts Ter-
race.” (Landgate, supra, 17 Cal.4th at p. 1024.) The
evidence that other lot line applications were granted is
not substantial evidence in support of the trial court’s
finding that the City was not pursuing a legitimate gov-
ernmental interest.
The City’s reasons for rejecting the lot line revision
application, as expressed in the official resolution, were
based on concerns that the reduced area of the new parcels
would not conform to the minimum lot size requirements
for hillside lots, and that the application created a fifth lot
in a duly restricted subdivision with improvements and
App. 20
utilities designed for four lots. Even if the City incorrectly
maintained that lot size and subdivision restrictions
applied, the monitoring of density and hillside slope
requirements are legitimate governmental interests. (See,
e.g., Northwood Homes, Inc. v. Town of Moraga (1989) 216
Cal.App.3d 1197, 1202 [local ordinance placing stringent
restrictions on hillside development upheld as reasonably
related to the regional welfare]; Del Mar v. California
Coastal Com. (1984) 152 Cal.App.3d 49, 52 [slope and
density considerations supported commission’s decision to
deny permit].) Hillside properties require particular
oversight. The 1977 City-imposed land use restriction
prohibiting further subdivision was a legitimate exercise
of governmental policy and regulatory authority.
Unlike the summary lot line adjustment procedure,
the SMA provides opportunities for neighborhood input on
the effects of development and detailed study of all im-
pacts on the community. (See, e.g., Horn v. County of
Ventura (1979) 24 Cal.3d 605, 616 [neighbors entitled to
notice and opportunity to be heard before the approval
occurs]; Cohan v. City of Thousand Oaks (1994) 30
Cal.App.4th 547, 555 [SMA gives opportunity to other
property owners to be heard where subdivision plan
impacts topography, density, public health, access rights,
or community land use plans].) Protecting the rights of its
residents to be heard on community land use is also a
valid governmental purpose. Although the record does not
demonstrate any opposition of immediate neighbors to the
lot line adjustment proposal, a formal subdivision process
with notice to affected landowners affords broader com-
munity comment.
When Landgate applies, the Penn Central factors will,
of necessity, be absent. The normal delay in approving the
App. 21
application cannot be said to have “‘prohibited a beneficial
use to which [the property] had previously been devoted’
[citation], thus interfering with [the Loewensteins’] ‘pri-
mary expectation’ [citation].” (Kavanau, supra, 16 Cal.4th
at p. 780.) The delay here did not abrogate the total use of
the property, as did the government action in Penn Cen-
tral, supra, 438 U.S. at pp. 127-128.) There was no physi-
cal invasion, no extinguishing of a fundamental attribute
of ownership, or loss of all beneficial use of the tank
parcel. (Kavanau, supra, 16 Cal.4th at pp. 780-781.)
The Loewensteins were not prevented from building a
residence on the tank parcel if they could supply access
and were not prevented from supplying an access. Henn
testified that under existing setback and frontage re-
quirements, a 1575 square foot single story and a 3150
square foot two-story house could be constructed on the
tank lot. The only delay was in obtaining permission to
use a summary procedure to change the use of the ac-
quired parcel, to enlarge it and divide the existing parcel.
“(T]he submission that appellants may establish a ‘taking’
simply by showing that they have been denied the ability
to exploit a property interest that they heretofore had
believed was available for development is quite simply
untenable.” (Penn Central, 438 U.S. at p. 130 [rejecting
argument that taking of air space rights occurred].)
The delay in the Loewensteins’ development plans
caused by the need for resolution of this threshold issue,
and the court’s subsequent determination that the City
was mistaken, does not convert the pursuit of a reasonable
policy into an unconstitutional taking. (See also Littoral
Development Co. v. San Francisco Bay Conservation etc.
Com. (1995) 33 Cal.App.4th 211, 221 [no unconstitutional
regulatory taking where property was only subject to delay
—_
App. 22
caused by uncertainty as to regulatory jurisdiction].)
Landgate, Inc. similarly contended that from the time the
development plan was denied in February 1991 until the
time it was approved in February 1993 after the lot line
issue had been resolved by litigation, the development
process was at a standstill, effectively depriving the
property of all economic benefit. (Landgate, supra, 17
Cal.4th at pp. 1013, 1015.) But Landgate explains that a
judicial determination of the validity of certain precondi-
tions to development is a normal part of the development
process.” (Landgate, supra, at p. 1030.) Such a temporary
bottleneck in the process is not a taking of property.”
The Exception Noted in Landgate Does Not Apply
The Landgate court noted an exception to its holding
that normal delay in obtaining permits is not a taking,
even though the government’s position substantially
advances a legitimate state interest, if the “position was so
unreasonable from a legal standpoint as to lead to the
conclusion that it was taken for no purpose other than to
delay the development project before it.” In such a case,
the court stated that this kind of “delaying tactic” could
not be said to advance any valid government purpose.
(Landgate, supra, 17 Cal.4th at p. 1024.) |
** Numerous examples are set forth in Landgate, supra, 17 Cal.4th
at pp. 1030-1031. Cf. Comment, Horsley, The Abnormalcy of Normal
Delay (2001) 28 Pepperdine L.Rev. 414, 428-429. E
" For example, a-temporary delay in receiving the benefits of
property ownership, such as a delay in receiving increased rental
income due to an imposed rent increase limit, does not constitute a
taking of property. (Kavanau, supra, 16 Cal.4th at p. 780.)
App. 23
The Loewensteins contend that San Dieguito, supra, 7
Cal.App.4th 748 and Ali, supra, 77 Cal.App.4th 246
decided the precise question at issue here adversely to the
City and made the City’s insistence on blocking the lot line
adjustment objectively unreasonable and without legal
support. Both of the cited cases are transparently distin-
guishable and do not purport to decide the issue facing the
City in this case.
In San Dieguito, a developer applied for a lot line
adjustment to reconfigure nine existing parcels in a 189-
acre area. (San Dieguito, supra, 7 Cal.App.4th at p. 751.)
The application was rejected based on a city attorney’s
opinion that it created more than five new lots and was,
therefore, subject to the SMA. (Id., at pp. 753-754.) The
owner filed an action seeking to compel the city to process
a lot line adjustment under the exception in section 664 12,
subdivision (d). The trial court agreed with the city that
the lot line adjustment exception to the SMA was intended
to permit only minor changes in parcel lines and implied
that only two parcels could be the subject of an adjust-
ment. The Court of Appeal in San Dieguito rejected the
trial court’s reasoning, stating that the language of subdi-
vision (d) was clear, and it did not refer to minor changes
or limit the number of parcels.” (San Dieguito, supra, 7
Cal.App.4th at pp. 756-759.)
Ali, supra, 77 Cal.App.4th 246 does not address the
issue facing the City in this case. In Ali, the city’s action of
* In 2001, the Legislature changed the application of the SMA
exception to limit it to: “a lot line adjustment between four or fewer
existing adjoining parcels, ...”
App. 24
denying a demolition permit for a hotel that was substan-
tially destroyed in a fire based on a local ordinance prohib-
iting demolition of such housing violated the Ellis Act.
(§ 7060, subd. (a).) The court distinguished Landgate,
based on that court’s discussion of whether the actions of
the regulating government entity advance a legitimate
government purpose. The Ali court held that the city’s
action violating state law was arbitrary and unreasonable
in light of the earlier case of Javidzad v. City of Santa
Monica (1988) 204 Cal.App.3d 524, that held a city ordi-
nance governing rental property was preempted by the
Ellis Act. (Ali, supra, 77 Cal.App.4th at p. 255.)
The Loewensteins argue that like the cities in San
Dieguito and Ali, the City here has taken an objectively
unreasonable and legally unsupportable position that
leads to the conclusion that it was seeking only to delay
development. They contend that the City should have
known it could not reject the application on the ground it
violated municipal hillside ordinances cr created new
parcels in a restricted subdivision because San Dieguito
decided this precise issue. Without commenting on the
rationale of San Dieguito and Ali and because they are
distinguishable, we reject the notion that they apply here
for the following reasons.”
“Unlike the city in San Dieguito, the City here did not
deny the application because it was inferring limitations
c. the number of lots subject to the lot line exception or
* The reasoning of Ali has been criticized. (Alperin, The “Takings”
Clause: When Does Regulation “Go Too Far?” (2002) 31 Sw.U.L.Rev. 169,
221-225.)
App. 25
because it assumed that only minor changes could be
processed under the exception. It rejected the application
because it believed the adjustment would create an extra
lot in a restricted subdivision and because of concerns that it
would violate municipal ordinances regarding hillside
property. The exception in section 66412, subdivision (d)
expressly recognizes that a city may consider whether the
proposed lot line adjustment will violate local land use
ordinances. The exception states: “A local agency ... shall
limit its review and approval to a determination of whether
or not the parceis resulting from the lot line adjustment will
conform to the local zoning and building ordinances.” Unlike
the City of San Dieguito, the City of Lafayette attempted to
do no more than what the statute allows — ensure confor-
mance with local zoning and building restrictions.
Moreover, relying on the independent advice of the city
attorney, the City rejected the proposal for reasonable land
use purposes. City Resolution No. 69-98, in the record, sets
forth legitimate reasons that advance governmental inter-
ests for denying the lot line adjustment application.
The City’s view of the Loewensteins’ application is
rational and closely related to the planning goals of local
zoning and building ordinances. The result of the Loewen-
steins’ proposed lot line adjustment would have split the
three-acre parcel with the aim of building a fifth house on
the parcel in the restricted hillside subdivision. By pur-
chasing the small tank parcel, and folding it into this plan,
they could argue that they met the letter of the lot line
exception, in that tlcz’ owned two lots before, and two lots
after the adjustment. The Loewensteins’ proposal was a
creative concept, worthy of the City’s consideration. To
avoid the City’s concerns about building a fifth home, the
Loewensteins argued they were not inerging the tank parcel
App. 26
into the subdivision lot, but were pulling a section of the
original lot out of the subdivision and placing it into the tank
parcel. These fine distinctions, although accepted by the trial
court’s ruling that the City’s view was wrong, do not make
the Citys valid concerns either legally unreasonable or
logically deficient. Judge Patsey’s decision did not transform
an honest difference of opinion into a compensable taking.
Neither San Dieguito nor Ali supply the applicable
legal rule for the unusual lot line adjustment proposed by
the Loewensteins. The City here did not violate a state law
and did not claim to read limitations into the SMA, but
sought only to make certain that the application complied
with local land use regulations. This case fits like a hand
in a glove with the rule established by Landgate. Resolu-
tion of the threshold issue of the legality of the lot line
adjustment was a normal delay in the process of obtaining
a permit pertaining to land use. (Landgate, supra, 17
Cal.4tn at pp. 1017-1018.)
"he Penn Central Factors Are Negated By the Landgate
Analysis
The Loewensteins argue that even if the City was
pursuing a valid governmental interest, its delay in
processing the lot line adjustment application interfered
with their reasonable investment-backed expectations and
therefore failed the Penn Central analysis. (Kavanau,
supra, 16 Cal.4th at p. 775 [rent control regulation that
does not deprive owner of all economic use is evaluated by
Penn Central factors].) As noted above, the Penn Central
factors include consideration of the economic impact of the
regulation, the character of the government’s action and
the extent of interference with “distinct investment-backed
expectations.” (Penn Central, supra, 438 U.S. at p. 124.)
App. 27
However, the Penn Central factors are resolved by the
analysis in Landgate. Once a court determines that a
governmental entity engaged in decision-making whose
purpose is not delay for delay’s sake but legitimate over-
sight, the question of whether a landewner has a reason-
able investment-backed expectation that is impacted in a
manner requiring compensation is, of necessity, answered
in the negative. A landowner can have no reasonable
expectation that there will be no delays or bona fide
differences of opinion in the application process for devel-
opment permits. Sometimes the application process must
detour to the court process to resolve a genuine disagree-
ment. Because such delay comes within the Landgate
category of normal delays in the development approval
process, there is no taking even if the value of the subject
property is diminished in some way. (Landgate, supra, 17
Cal.4th at p. 1020.)
Similarly, a normal delay in the approval process does
not prohibit a use to which the property was previously
devoted, or result in acquisition of resources for a public
purpose, but is inherent in the legitimate exercise of a
city’s duty to monitor land use planning. (Kavanau, supra,
16 Cal.4th~ at pp. 780-782.) The temporary economic
impact on a landowner caused by a Landgate delay is
considered a normal incident of property ownership, and
as such, does not figure in the weighing process against
the government in a Penn Central analysis. In short, the
analysis stops when Landgate forecloses it.
The Cross-Appeal
The Loewensteins cross-appeal from Judge Patsey’s
order denying attorney fees for the mandamus portion of
—
App. 28
the case under section 800. This contention is based on the
argument that the Citys actions were arbitrary and
capricious. The trial court found otherwise and we agree.
Section 800 provides for attorney fees: “where it is
shown that the award, finding, or other determination of
the proceeding was the result of arbitrary or capricious
action or conduct by a public entity or an officer thereof in
his or her official capacity, ... ” Judge Patsey made ex-
plicit comments to the effect that the City’s position had
some support in the legislative history, and opined that the
Loewensteins’ application was not a routine lot line ad-
justment and that it presented “a very close and ...
difficult case.” We agree that the City’s position regarding
the application “made a good deal of sense.” The Loewen-
steins failed to show that this case involved arbitrary or
capricious agency action.
DISPOSITION
The judgment on the takings claim is reversed.“ The
case is remanded with directions to enter a new judgment
in favor of the City. The order regarding attorney fees is
_ affirmed. Appellant is entitled to costs.
Marchiano, P.J.
“ In light of our determination that Landgate is the linchpin in
this case, there is no need to decide appellant’s argument that Judge
Patsey erred in determining “ripeness.”
App. 29
We concur:
Swager, J.
Margulies, J.
CERTIFIED FOR PUBLICATION
Loewenstein et al. v. City of Lafayette, A093590
Trial Court: Contra Costa County Superior Court
Trial Judge: The Honorable Judge Patsey
The Honorable Judge Rivera, and
The Honorable Judge Kolin
Attorneys:
David J. Bowie
Bowie & Bruegmann, LLP
(Attorney for Appellants/Plaintiffs — Peter G. Loewenstein
et al.)
Charles J. Williams, City Attorney
E. Clement Shute, Jr.
William J. White
Osa L. Armi
Shute, Mihaley & Weinberger LLP
(Attorneys for Appellant/Defendant — City of Lafayette)
Dennis J. Herrera, City Attorney
Andrew J. Schwartz, Deputy City Attorney
(Attorneys for Amicus Curiae — City and County of San
Francisco)
Bill Lockyer, Attorney General
Richard M. Frank, Chief Assistant Attorney General
J. Matthew Rodriquez, Senior Assistant Attorney General
_ App. 30
Joseph Barbieri, Deputy Attorney General
Office of the Attorney General
(Attorneys for Amicus Curiae — State of California)
App. 31
COURT OF APPEAL, FIRST APPELLATE DISTRICT
350 MCALLISTER STREET
SAN FRANCISCO, CA 94102
DIVISION 1
PETER LOEWENSTEIN, et al.,
Plaintiffs and Appellants,
v.
CITY OF LAFAYETTE, ’
Defendant and Appellant.
A093590
Contra Costa County No. C9803977
(Filed Dec. 10, 2002)
' BY THE COURT:
The petition for rehearing is denied.
Date: DEC 10 2002 MARCHIANO, P.J. P.J.
App. 32
Court of Appeal, First Appellate District,
Division One — No. A093590
S112362
IN THE SUPREME COURT OF CALIFORNIA
En Banc
PETER G. LOEWENSTEIN et al.,
Plaintiffs and Appellants,
¥.
CITY OF LAFAYETTE,
Defendant and Appellant.
(Filed Feb. 11, 2003)
Petition for review DENIED.
Chin, J., and Brown, J., are of the opinion the petition
should be granted.
GEORGE
Chief Justice
App. 33
COURT OF APPEAL, FIRST APPELLATE DISTRICT
350 MCALLISTER STREET
SAN FRANCISCO, CA 94102
DIVISION 1
David J. Bowie
Bowie & Bruegmann
1700 N. Broadway
Ste. 350
Walnut Creek, CA 94596
PETER LOEWENSTEIN, et al.,
Plaintiffs and Appellants,
v.
CITY OF LAFAYETTE,
Defendant and Appellant.
A093590
Contra Costa County No. C9803977
** REMITTITUR **
I, Ron D. Barrow, Clerk of the Court of Appeal of the
State of California, for the First Appellate District, do
hereby certify that the decision entered in the above-
entitled cause on November 13, 2002 has now become
final.
v_ Appellant ___ Respondent to recover costs
Each party to bear own costs
Costs are not awarded in this proceeding
(wae
Costs are not awarded in this proceeding
ee
Witness my hand and the Seal of the Court affixed at
my office this FEB 18 2003
App. 34
(SEAL)
Ron D. Barrow
Clerk of the Court
BETH ROBBINS
Deputy Clerk
App. 35
CHARLES J. WILLIAMS (State Bar No. 26659)
BEST BEST & KRIEGER LLP
Muir Parkway
1330 Arnold Drive, Suite 149
Martinez, CA 94553
Tel: (925) 228-3840
Fax: (925) 228-1703
E. CLEMENT SHUTE, JR. (State Bar No. 36542)
WILLIAM J. WHITE (State Bar No. 181441)
OSA L. ARMI (State Bar No. 193543)
SHUTE, MIHALY & WEINBERGER LLP
396 Hayes Street
San Francisco, CA 94102
Tel: (415) 552-7272
Fax: (415) 552-5816
Attorneys for Defendant
CITY OF LAFAYETTE -
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
PETER G. LOEWENSTEIN ) Case No. C98-03977
and HELEN LOEWENSTEIN, ) NOTICE OF ENTRY
Plaintiffs, OF JUDGMENT
vs.
CITY OF LAFAYETTE,
a Municipal Corporation, and
DOES 1 through 50, inclusive,
Defendants.
Nee Nee ee ole ee
_NOTICE IS HEREBY GIVEN, that on April 8, 2003,
the attached Judgment After Appeal was entered in the
above-captioned action.
App. 36
Dated: April 16,2003 SHUTE, MIHALY &
WEINBERGER LLP
By: /s/ E. Clement Shute, Jr.
E. CLEMENT SHUTE, JR.
App. 37
CHARLES J. WILLIAMS (State Bar No. 26659)
BEST BEST & KRIEGER LLP
Muir Parkway
1330 Arnold Drive, Suite 149
Martinez, CA 94553
Tel: (925) 228-3840
Fax: (925) 228-1703
E. CLEMENT SHUTE, JR. (State Bar No. 36542)
WILLIAM J. WHITE (State Bar No. 181441)
OSA L. ARMI (State Bar No. 193543)
SHUTE, MIHALY & WEINBERGER LLP
396 Hayes Street
San Francisco, CA 94102
Tel: (415) 552-7272
Fax: (415) 552-5816
Attorneys for Defendant
CITY OF LAFAYETTE
_
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
PETER G. LOEWENSTEIN ) Case No. C98-03977
and HELEN LOEWENSTEIN, ) tPROPOSED}
Plaintiffs, JUDGMENT AFTER
APPEAL :
vs. )
CITY OF LAFAYETTE ) (Filed Apr. 8, 2001)
a Municipal Corporation, and )
DOES 1 through 50, inclusive,
Defendants. )
This case arises out of the decision of the City of
Lafayette (“City”) to deny a lot line adjustment application
submitted to it by Helen and Peter G. Loewenstein
App. 38
(“Plaintiffs”). On September 24, 1998, Plaintiffs initiated
their legal challenge to the City’s decision by filing a
petition for writ of mandate and complaint for declaratory
relief and damages under a constitutional takings theory.
On March 9, 1999, Judge Patsey of this Court entered
an order granting Plaintiffs’ petition for writ of mandate,
directing the City to set aside its prior decision denying
the lot line adjustment application, and ordering the City
to reconsider that application. Pursuant to California
Government Code section 800, Judge Patsey also entered
an order denying Plaintiffs’ request for attorney fees for
litigation of their petition for writ of mandate (hereinafter
“order regarding attorney fees”). On November 16, 2000,
the City filed an amended return to the writ of mandate
indicating that the City would not pursue an appeal of the
writ of mandate. On January 22, 2001, the City notified
Plaintiffs by letter that it would grant a renewed request
for a lot line-adjustment, and inquired how respondents
intended to proceed. On May 1, 2001, the City granted the
lot line adjustment requested by Plaintiffs.
Judge Kolin of this Court held a trial on Plaintiffs’
takings claim on June 12-14, 2000, and awarded Plaintiffs
a total of $611,666.66 in damages (including interest) for
that claim in a judgment entered on September 25, 2000
(hereinafter “takings claim judgment”). The City made a
motion for a new trial, which motion was denied by opera-
tion of law.
On December 27, 2000, the City filed a notice of
appeal of the takings claim judgment and on January 16,
2001, Plaintiffs filed a notice of cross-appeal of the order
regarding attorney fees. On November 13, 2002, the
California Court of Appeal reversed this Court’s takings
App. 39
claim judgment against the City, affirmed this Court’s
order regarding attorney fees, and indicated that the City
is entitled to recover costs. The Court of Appeal also
remanded the case with directions to enter a new judg-
ment in favor of the City.
The Court of Appeal denied Plaintiffs’ petition for
rehearing on December 10, 2002. The California Supreme
Court denied Plaintiffs’ petition for review on February 11,
2003. The Court of Appeal issued the remittitur on Febru-
ary 18, 2003.
It is therefore ORDERED, ADJUDGED AND DE-
CREED that:
1. This Court’s September 25, 2000 judgment for
Plaintiffs is vacated;
2. Judgment is entered for the City pursuant to the
Court of Appeal’s decision;
3. Plaintiffs shall not recover any damages or re-
ceive any declaratory relief;
4, Plaintiffs shall not recover any attorney fees or
costs; and
5. The City shall recover from Plaintiffs litigation
costs in the amount of $1920.05.
Dated: 3/21/, 2003 By: /s/ Terence L. Bruiniers
Judge of the Superior Court
HELD FOR 10 DAYS
App. 40
DECLARATION OF SERVICE
Peter G. Loewenstein and Helen Loewenstein v.
City of Lafayette Superior Court, County of
Contra Costa — Case No. C 98-03977
[, the undersigned, certify and declare that I am over
the age of 18 years, employed at 396 Hayes Street in the
City and County of San Francisco, State of California, and
not a party to the above-entitled case. On April 16, 2003, I
served the following document:
NOTICE OF ENTRY OF JUDGMENT
and by placing a true copy of said document in a sealed
envelope, with postage thereon fully prepaid, in the United
States Mail at San Francisco, California, addressed as
follows:
—
David J. Bowie Peter G. Loewenstein
Bowie & Bruegmann, LLP Peri Executive Centre
1700 North Broadway, 2033 North Main Street,
Suite 350 Suite 430
Walnut Creek, CA 94596 Walnut Creek, CA 94596
I do hereby certify that I am employed in the office
of a member of the Bar of this Court at whose direction
the service was made. I declare under penalty of perjury
that the foregoing is true and correct.
Executed on April 16, 2003, at San Francisco,
California.
/s/ Mike Lewis
Mike Lewis
: App. 41
BEFORE THE CiTy COUNCIL OF THE
CITY OF LAFAYETTE
In the Matter of:
Denying the appeal of Peter )
and Helen Loewenstein up- +)
holding the Planning Commis- )
sion LLR1-98 decision to deny ) Resolution No. 69-98 98
a request for a three parcel lot-)
line revision, Burton Vista Ct., )
R-20 Zone, APN 236-090-012, )
126-090-015, 239-100-002. )
RECITALS
A. On September 12, 1997, Peter and Helen Loewen-
stein (“Applicants”) filed an_application (LLR 1-98)
requesting a three-parcel lot-line revision. The pro-
posed site is located in the R-20 zoning district
(LMC section 6-781 through 6-793).
B. The Planning Commission reviewed the application
on March 19, 1998. After considering the informa-
tion received at the hearing, the Planning Commis-
sion denied the request: based on the following
findings:
1. The proposed action would place a fifth lot
and house within a City-approved subdivi-
sion that was restricted to four lots and
four houses.
2. The proposed action would not be consis-
tent with the city zoning because it would
reduce the lot area of one proposed parcel
to 1.07 acres, which does not comply with
the lot area requirement of LMC sections
6-3104 and 6-3105(b), and would reduce
the lot area of the other proposed parcel to
App. 42
2.12 acres, which does not comply with
LMC 6-3104.
3. The Commission expressed the opinion
that the LLR process proposal in this case
was a circumvention of the normal re-
quirements of the subdivision process.
On March 23, 1998, Applicants appealed the
Planning Commission’s decision to the City Coun-
cil.
The City Council held a public hearing on April 27,
1998. The City Council heard testimony and received
evidence from the City staff and from the Applicants,
and after consideration of the evidence submitted, di-
rected staff to prepare a Resolution for consideration
at the meeting of May 11, 1998. At the May 11th
meeting, the Applicants and the City Council agreed
to make the resolution effective upon expiration of a
period which would permit Applicants to explore a
suggestion by the Council that Applicants file a sub-
division application. The Council thereupon adopted
Resolution No. 43-98.
The Applicants did explore the filing of a subdivision
application. After conferring with City staff and its
own engineer, Applicants determined that they did
not want to risk a denial of a subdivision application
given the time and expense involved in such a pro-
ceeding and their belief that a lot line adjustment
was the proper method to accomplish their goal.
Applicants have asked the City Council to amend
Resolution No. 43-98 to make it effective upon adop-
tion so that they may initial legal proceedings chal-
lenging the City Council’s denial of the lot line
adjustment.
App. 43
G. In contemplation that a court will be called upon to
review these proceedings, the City Attorney has
drafted this revised resolution of denial to provide
complete findings upon which the City Council’s de-
cision is clearly disclosed and to take into account
some of the Applicant’s comments and objections to
the proposed adoption of the revised resolution.
H. The Council has considered the matter presented to
it by the Applicant and the City Staff.
NOW, THEREFORE, the City Council of the City of
Lafayette, California finds and determines as follows:
1. Applicants’ appeal regarding a three-parcel
lot-line revision is denied based upon the
following findings:
a. Government Code section 66412(d) author-
izes a lot line adjustment under conditions
when land taken from one parcel is added to
an adjacent parcel but a greater number of
parcels than originally existed is not created
thereby. In approving a lot line adjustment,
the City is limited in its review and approval
to a determination of whether the resulting
parcels will conform to City zoning and
building ordinances. The City may not im-
pose conditions or exactions on its approval
except to conform to City zoning and build-
ing ordinances. The City may not require a
tentative, parcel or final map.
b. Applicants are the owners and residents of a
3.04 acre parcel, located in a four-lot subdi-
vision that was approved in 1977 (MSL 7-
77). The 3.04 acre lot is improved with a
single family residence.
App. 44
Applicants wish to use the lot line adjust-
ment procedure to split off the rear portion
of its 3.04 acre lot and combine that portion
with a separate parcel, which Applicants
have acquired, to create a fifth building lot.
One of the conditions of approval of the sub-
division in which Applicants’ lot is located is
that there shall be no further subdivision of
any of the four lots. An owner of a lot subject
to this condition may seek to further subdi-
vide its lot, but to do so must seek approval -
of a change in this condition. If the City
changes the condition to permit the creation
of additional lot(s), the owner is required to
comply with the Subdivision Map Act (Gov't
Code §§66410, et seq.) and the City’s subdi-
vision regulations.
The separate parcel that Applicants ac-
quired is near, but not contiguous to, its
subdivision lot and is located outside the
subdivision. This separate parcel was origi-
nally part of a larger parcel owned by the
Moraga Company. It was acquired by the
East Bay Municipal Utility District (EB-
MUD) for use as a tank site in 1931. The
tank site is a parcel 75 by 60 feet in area
(4,500 sq. ft.). The documents from the files
of EBMUD relating to the acquisition of the
parcel by Applicants are attached to this
resolution as Exhibit A.
The lot line adjustment proposed by Appli-
cants requires that the boundaries of Appli-
cants’ lot and that of a neighboring lot
within the subdivision be adjusted so that
the tank site parcel becomes contiguous to
App. 45
Applicants’ lot. To accomplish this, a trian-
gular parcel would be taken from a
neighboring subdivision lot and added to
Applicants’ subdivision lot. This would make
the tank site parcel contiguous to Appli-
cants’ subdivision lot. Upon completing this,
the boundaries of the tank site parcel and
Applicants’ subdivision lot would be ad-
justed so that the original 3.04 acre lot
would be divided such that the existing resi-
dence and surrounding area would comprise
a 1.07 acre lot, rather than a 3.04 acre lot,
and the tank site parcel would be combined
with the remaining portion of the original
3.04 acre lot to comprise a 2.12 acre lot.
Approving this series of lot line adjustments
would-create two lots and result in a fifth
building site within the subdivision where
only four lots are approved for development.
Applicant states that a fifth lot is not being
created and that the subdivision will still
consist of four lots because a portion of its
subdivision lot is being removed and added
to the tank site parcel. However, the build-
ing site for the proposed residence is not on
the tank site parcel but is on the portion of
the 3.04 acre subdivision lot that would be
split off from it. This fifth lot would be
served by the infrastructure and subdivision
improvements constructed for the four lot
subdivision. It is questionable whether the
tank site parce] could be developed as an in-
dependent building site.
The regulation and control of the design and
improvement of subdivisions within its
boundaries is vested in the City (Gov't Code
App. 46
§§66414, 66418, 66419). The approval of Ap-
plicants’ lot line adjustment would deprive
the City of the authority vested in it by the
Subdivision Map Act. It would permit the
Applicants to avoid the mandatory and dis-
cretionary requirements that are a part of
the subdivision process though the use of the
non-discretionary lot line adjustment proc-
ess.
i. The City Council concludes that the Appli-
cants’ proposal would create an additional
lot and is, therefore, a division of land
within the meaning of Chapter 6-31 of the
Lafayette Municipal Code. Applicants’ 3.04
acre lot is “hillside land,” as that term is de-
fined in Lafayette Municipal Code (LMC)
section 6-3103. As such, if it is to be divided
into two parcels, it is subject to LMC section
6-3101 through 6-3108. These provisions
specify the minimum lot area required for a
building site on hillside land. In turn, the
require lot area for a hillside lot depends
upon the lot’s average slope. The lot line ad-
justment proposed would not conform to
City zoning because, based on their respec-
tive average slopes, the proposed 1.07 acre
lot would not comply with the lot area
requirement of LMC sections 6-3104 and 6-
3105(b), and the proposed 2.12 acre lot
would not comply with the lot area require-
ment of LMC section 6-3104.
2. This determination is a denial of the author-
ity to use the lot line adjustment process. It
is not a denial of the Applicants’ right to
apply for the creation of the lot proposed by
following the City’s subdivision regulations.
App. 47
3. This resolution supercedes and rescinds
Resolution No. 43-98, adopted on May 11,
1998. This resolution becomes effective
upon its adoption.
PASSED AND ADOPTED by the City Council of the
City of Lafayette at a meeting held on August 10, 1998 by
the following vote:
AYES: Councilmembers Horn, Strauss, and Mayor Gro-
din
NOES: None
ABSENT: Councilmember Samson
ABSTAIN: Councilmember Tatzin
/s/ Anne Grodin
Mayor
ATTEST:
/s/ Susan M. Jusaitis
City Clerk
EXHIBIT A
(LOGO) EAST BAY
MUNICIPAL UTILITY DISTRICT
LYNELLE M. LEWIS
SECRETARY OF THE DISTRICT
July 13, 1998
Michael Henn, Planning Services Manager
City of Lafayette
P. O. Box 1968
Lafayette, California 94549-1968
App. 48
Dear Mr. Henn:
In response to your July 6, 1998 letter request re informa-
tion on the sale of property on Burton Vista Court to Mr.
and Mrs. Loewenstein, enclosed are the following docu-
ments from the District’s files:
1. Notice of Public Auction Option to Purchase
for August 22, 1996;
2. Surplus Property Value Estimate; and
3. Memoranda from Stephen J. Boeri to Rebecca
F. Lamoreaux, dated October 7, 1996, re: Sale
of Surplus District Property, CC 212, Lafayette.
Please contact Stephen J. Boeri, Manager of Real Estates
Services, at 287-1248, if you need further assistance.
Sincerely,
/s/ Lynelle M. Lewis
Lynelle M. Lewis
Secretary of the District
LML:mp
Enclosures
cc: Stephen J. Boeri
w:\ltr.hen
App. 49
(LOGO)
EBMUD
NOTICE OF
PUBLIC AUCTION
OPTION TO PURCHASE
(Sealed Bid)
DATE:
ij. TIME:
F PLACE:
OPTION PERIOD:
OPTION DEPOSIT
AMOUNT:
MINIMUM BID:
PROPERTY LOCATION:
FOR MORE INFO
CONTACT:
Wednesday [Thursday],
August 24 [22], 1996
4:06 [9:30] p.m.
East Bay Municipal Utility
District
Administration Building
375-11th Street, Oakland, CA
9th Floor Conference Room
60 Days After the Acceptance
and Approval of the Bid by the
District’s Board of Directors
$2,500
$13,500
Burton Vista and Carlyle
Terrace, Lafayette
(See map on reverse)
Gayle Thomas
East Bay Municipal Utility
District _
375 Eleventh Street
Oakland, CA 94607-4204
(510) 287-1247
M-F 7:30 a.m. — 5:00 p.m.
App. 50
PROPERTY INFORMATION
Size: Approximately 4500 Square feet
Assessor’s Parcel No.: 239-100-002
Zoning: R-20 Residential
Utilities: There is no record access to the site; and
there are no utilities to the site, but utilities are in the
nearby streets.
The property is being sold “as is” and is subject to all
title exceptions, restrictions, easements and reservations
whether or not of record.
IT IS THE BUYER'S RESPONSIBILITY TO DETER-
MINE THE ACCEPTABLE USES OF THIS PROPERTY.
[Title Report attached]
SEALED BID PROCESS
The minimum bid price is $13,500. Sealed bids will be
accepted in the Real Estate Services Section of the East
Bay Municipal Utility District, located on the 9th floor at
375-1lth Street Oakland, CA 94607, until 1:00 p.m. on
Wednesday, August 21, 1996, at which time they will be
opened.
The Option to Purchase Agreement must be executed and
returned with a CASHIER’S CHECK, CERTIFIED
CHECK, OR MONEY ORDER in the amount of $2,500.
Bid opening will commence at 9:30 AM +:00-p-m- on the
9th floor of EBMUD. The highest qualified bid will be
determined and accepted. Unaccepted bids will be re-
turned by mail as addressed therein. The successful
bidder’s deposit is non-refundable.
App. 51
BID ACCEPTANCE
Any acceptance of a bid by the person conducting the sale
shall be subject to the acceptance and approval of the
District.
BID REJECTIONS
The District reserves the right to reject any and all offers
and waive any informality or irregularity in any offer or to
accept any offer deemed in the best interests of the Dis-
trict, or to withdraw the property from the sale.
BIDDER DEFAULT
In the event that the high bidder fails to exercise his or
her option within the Option Period or defaults in comple-
tion of the sale, the District may, at its discretion, offer the
Option to the second highest bidder. If the second highest
-bidder accepts the offer, the deposit requirement and
terms of Option to purchase shall be the same as stated in
this notice of sale, except that the Option Period shall
commence upon acceptance and approval by the District.
CLOSING TRANSACTION
Successful bidder will have the Option Period of 60 days
after the District approves and accepts the bid to complete
the transaction under the TERMS OF OPTION TO PUR-
CHASE, attached hereto.
In the event any term or condition in the agreement
conflicts with or violates any statutory requirements in
the sale of public property, only that part or portion of this
App. 52
agreement so conflicting shall be amended to conform with
any applicable legal requirements at the time.
All District employees may bid to acquire surplus District
property, except employees who have direct access to
information not generally available to the public or who
influences the purchase or sale of right-of-way or other
real property.
THE INFORMATION CONTAINED HEREIN IS BE-
LIEVED RELIABLE, BUT IS NOT GUARANTEED.
OPTION TO PURCHASE AGREEMENT
(SILENT BID)
For the purchase of the real property located between
Burton Vista and Carlyle Terrace in Lafayette, California,
and described in Exhibit “A” attached hereto and made a
part hereof, the undersigned Optionee hereby agrees to
the terms and conditions of option hereinafter set forth
and further agrees to pay
DOLLARS ($ ) as full payment for the purchase of
said property. A deposit in the amount of $2,500.00 is paid
herewith and the balance in the sum of $
will be paid within the Option Period specified herein,
namely 60 days after acceptance of this Agreement by the
East Bay Municipal Utility District.
TERMS AND CONDITIONS
1. The Option Period shail commence on the first day
following the date of the approval and acceptance of
this Option by the District’s Board of Directors. The
App. 53
full purchase price shall be paid on or before expira-
tion of the Option Period.
There may be circumstances beyond the control of the
Optionee which prevent completion of the terms and
conditions within the Option Period. Under these cir-
cumstances, East Bay Municipal Utility District may, at
its discretion, provide for an extension of the Option Pe-
riod if it is deemed in the best interests of East Bay
Municipal Utility District. It is understood that the suc-
cessful bidder acquires no right, title, interest or equity
in or to said property until the deed is recorded.
The sale under this Option is subject to the approval
of East Bay Municipal Utility District. The successful
bidder may take possession when the deed from the
East Bay Municipal Utility District has been re-
corded.
East Bay Municipal Utility District reserves the right to
cancel the sale at any time prior to recording of the
deed. In the event of cancellation of sale, all monies de-
posited shall be refunded without payment of interest.
The right, title and interest in the property to be sold
pe shall not exceed that vested in East Bay Municipal
Utility District, and the property is being sold subject
to all title exceptions, restrictions, easements and
reservations, whether or not of record. The successful
purchaser may obtain a policy of title insurance at its
own expense. :
The Optionee shall pay all recording fees, documen-
tery transfer taxes, or other real estate transaction
iaxes, or fees by whatever name known, including es-
crow fees or broker’s commission, if any, and personal
property sales taxes where applicable.
East Bay Municipal Utility District does not guaran-
tee the condition of the property nor does it assume
App. 54
any responsibility for the conformance to codes or
permit regulations of the City and/or County in which
the property is located. It is the BUYER'S RESPON-
SIBILITY to determine and comply with all building,
planning and zoning regulations relative to the prop-
erty and the uses to which it can be put. THE PROP-
ERTY WILL BE SOLD ON AN “AS IS” BASIS.
Optionee hereby acknowledges reading and having read,
hereby agrees to all terms, rights and remedies as set
forth herein.
The property shall be conveyed by Grant Deed to:
(show full
name(s))
(show how title to be vested)
It is also agreed that all notices and services pertai ing to
matters arising in connection with this transactior, may be
made upon Optionee in person or by mail addressed to
bidder at:
(address)
(phone)
OPTIONEE EAST BAY MUNICIPAL
DISTRICT
Bid accepted and approved:
By:
Stephen J. Boeri
Manager of Real Estate Services
Date: Date:
App. 55
SURPLUS PROPERTY VALUE ESTIMATE
Property Name: Lafayette Tank Site (CC-212)
APN: 239-100-002
Former District Use: Tank Site
Property Address: Burton Vista & Carlyle Terrace, Lafayette
Zoning: R-20 General Plan: Residential
(20,000 SF minimum)
Best Use: Residential — Plottage to adjoining Landowner
Possible Hazardous Material (including underground tanks)
Yes ___ No _X
Property Rights Appraised: Fee
Date Inspected: 5/1/96
PROJ ECT DESCRIPTION:
Fee Sale of .10 acres to adjoining property owner.
PARCEL DESCRIPTION:
Parcel is .10 acres, landlocked, gently sloping to the east.
View of Burton Valley, several large oak trees. Nearest
utilities are in St. Mary’s and there is no easement serving
this parcel.
VALUE ANALYSIS:
This 60' x 75' parcel cannot be developed independently as
a single family residential lot as it has insufficient land
area to meet the minimum lot requirement and is below
the average normal standardized size and shape of other
privately owned properties in the immediate neighbor-
hood. There is no record access to the site and there are no
utilities to the site but utilities are nearby. The most
reasonable highest and best use is for asseinblage with one
App. 56
of the adjacent parcels as a pad area on a larger lot. This
parcel is at the high end of a knoll, which when combined
with adjacent property, would be well suited for a single
family residence.
I have used comparable market data to estimate the value
of buildable lots in the area. Assemblage parcels are
typically discounted somewhat as there is limited market
demand for such property. In this case, only the three
adjacent properties can utilize this parcel. However, this
property has excellent view potential and may be the most
logical site for a single family residence when combined
with adjoining property. For these reasons, the subject
4,500 s/f parcel has not been discounted but has been
valued the same as surrounding property. Buildable lots
sell for approximately $90,000 or $3.00-4.00/s.f. Therefore, _
the estimated value is $3.00-4.00/s.f. x 4;500 sf. or
$13,500-$18,000.
Recommended minimum bid: $13,500
/s/ Gayle Thomas
APPRAISER-REAL DATE
ESTATE REPRESENTATIVE
The undersigned has reviewed and approved this estimate.
MANAGER OF REAL ESTATE SERVICES
eens eS Tee: mee re
App. 57
October 7, 1996
MEMO TO: Rebecca F. Lamoreaux, Manager of Cus-
tomer and Community Services
FROM: Stephen J. Boeri, Manager of Real Estate
Services /s/
SUBJECT: Sale of Surplus District Property, CC 212,
Lafayette
RECOMMENDED ACTION
Approve the sale of surplus District property CC-212
located between Carlyle Terrace and Burton Vista Court
in Lafayette (see attached map), to an adjacent property
owner.
DISCUSSION
The District acquired this .10 acre site in 1931 from the
Moraga Company as a tank site to serve their small
subdivision (there is no evidence of monetary considera-
tion). In 1942, a new, larger tank was constructed on
property near this tank and this tank was removed from
‘service. This property has not been used for District
operations since then.
The District declared the property surplus in 1989. On ~
August 22, 1996, the property was offered for sale by
sealed bid to the three adjacent property owners. The
minimum bid was set at $13,500. The highest bid received
was $13,500 from Peter and Helen Loewenstein.
App. 58
—
EVALUATION
The City of Lafayette found the proposed property sale to
be in conformance with its general plan, strongly recom-
mending sale to an adjacent property owner due to its size.
The parcel does not have record access and, due to its size
(under 10,000 square feet), the District was not required to
offer the property for sale to other public agencies. A
Notice of Exemption was posted.
District staff valued the property in a range of $13,500 to
$18,000 and established a minimum bid of $13,500 for the
purposes of auction. Three adjacent property owners were
sent Notices of Public Auction by Sealed Bid and also
letters inviting their participation. One bid was received
from one party, with a high bid of $13,500. The successful
bidder has deposited $2,500 with the District and has 60
days (until October 22, 1996) to pay the balance. This sale
does not require Board approval. Per the signature author-
ity memo dated August 26, 1996, (copy attached) the
Manager of Customer and Community Services has
authority to dispose of fee title in values under $20,000.
SJB:GT:la
App. 59 ©
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF CONTRA COSTA
HON. RICHARD L. PATSEY, JUDGE
DEPARTMENT 13
PETER G. LOEWENSTEIN and
HELEN LOEWENSTEIN,
Plaintiffs and Petitioners,
vs. | Case No. C98-03977
CITY OF LAFAYETTE, etc., et al.,
Defendants and Respondents.
ORDER GRANTING PETITION
FOR WRIT OF MANDATE
(Filed Mar. 9, 1999)
Having considered the oral argument of counsel and
[having /s/ KLP] reviewed again the administrative record,
I am satisfied the tentative ruling denying the petition is
in error. Accordingly, I grant the petition, order Respon-
dent City of Lafayette to set aside its decision of August
10, 1998, and order Respondent to reconsider Petitioners’
lot line application. ~
I conclude, given this administrative record, that
granting the lot line adjustment would not violate any
zoning, building or slope density ordinances or regulations
of Respondent City of Lafayette. Thus, whether the stan-
dard of review be substantial evidence or arbitrariness,
Respondent City of Lafayette’s denial has no support in
the administrative record.
I disagree with Respondent’s view that the exemption
under Govt. Code Section 6641(d) is inapplicable here. By
the plain language of the section a“. . . greater number of
App. 60
parcels than originally existed is not. . . .” created by the
lot line adjustment. Respondent’s argument that I must
read into the statute a further restriction that a greater
number of parcels may not be created within an existing _
subdivision is not supported by the legislative history of
Section 6641(d), the plain meaning of the section of this
record. :
IT IS SO ORDERED THIS
9TH DAY OF MARCH, 1999.
/s/ Patsey
RICHARD L. PATSEY
JUDGE OF THE SUPERIOR
COURT
~
App. 61
Collette Stone, Esq. (SBN 129773)
BOORNAZIAN, JENSEN & GARTHE
1500 Newell Ave., 6th Floor
Walnut Creek, CA 94596
Telephone (510) 934-8400
David J. Bowie (SBN 50167)
William J. Bruegmann (SBN 94969)
_ BOWIE & GRUEGMANN, LLP
1331 N. California Blvd., Suite 780
Walnut Creek, Ca 94596 ~
Telephone (925) 939-5300
Telecopier (925) 939-5392
Attorneys for Plaintiffs Peter and Helen
LOEWENSTEIN 7
_-SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
Case No.
C98-03977
Trial Date: TBA
Dept: Dept 13
PETER G. LOEWENSTEIN and__+?)
)
)
)
si PEREMPTORY
)
)
HELEN LOEWENSTEIN,
Petitioners and Plaintiffs,
CITY OF LAFAYETTE, et al.,
Respondents and Defendants.
THE PEOPLE OF THE STATE OF CALIFORNIA
To: Respondent, THE CITY OF LAFAYETTE, a Munici-
pal Corporation.
On March 9, 1999, the Honorable Richard L. Patsey,
Judge of this Court, entered an Order Granting the
Petition for Writ of Mandate heretofor filed by PETER G.
LOEWENSTEIN and HELEN LOEWENSTEIN, Petitioners.
App. 62 -
Notice of Entry of said Order was filed and served on or
about March 15, 1999.
YOU ARE HEREBY COMMANDED upon receipt of
this Writ to set aside your decision of August 10, 1998,
in the administrative proceedings entitled “In the
Matter of: Denying the Appeal of PETER and HELEN
LOEWENSTEIN upholding the Planning Commission
LLR1-98 Decision to Deny a Request for a Three Parcel
Lot-Line Revision, Burton Vista Court, R-20 Zone, APN
236-090-012, 236-090-015, 239-100-002, which proceed-
ings are hereby remanded to you, to reconsider your
action in the light of this Court’s Order Granting Peti-
tion for Writ of Mandate, in which this Court made the
following determinations:
A. That granting the lot line revision requested by
Petitioners would not violate any zoning, build-
ing, or slope density ordinances or regulations
of Respondent, CITY OF LAFAYETTE, such
that the denial thereof was without support in
the Administrative Record; and
B. Government Code Section 66412(d) is inappli-
cable to these circumstances by virtue of the
plain language of that statute that a “
greater number of-parcels than originally ex-
isted is not .. .” created by Petitioner’s lot line
revision.
YOU ARE HEREBY COMMANDED to take any
further actions specifically enjoined on you by law; but
nothing in this Writ shall limit or control the discretion
legally vested in you.
————
App. 63
YOU ARE FURTHER COMMANDED to make and
file a return to this Writ on or before 60 days from date
hereof setting forth what you have done to comply.
SEAL
K. TORRE,
Clerk of the Superior Court
By D. DOW, Deputy Clerk
LET THE FOREGOING WRIT ISSUE,
DATED: 11/3/99
By /s/ Patsey
Honorable Richard J. Patsey
Judge of the Superior Court
APPROVED AS TO FORM
/s/ Charles J. Williams
CHARLES J. WILLIAMS,
City Attorney, City of Lafayette
App. 64
Charles J. Williams, SBN 026659
Charles J. Williams, APC
Muir Parkway
1330 Arnold Drive, Suite 149
Martinez, California 94553
Telephone: (925) 228-3840
Facsimile: (925) 228-1703
Attorney for Respondent and Defendant
CITY OF LAFAYETTE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
PETER G. LOEWENSTEIN and ) Case No.
HELEN LOEWENSTEIN, ) C98-03977
Petitioners and Plaintiffs, RETURN TO
. PEREMPTORY
; WRIT OF
CITY OF LAFAYETTE, et al., ) MANDATE
Respondents and Defendants. ) (Filed
) dan. 19, 2000)
To: THE SUPERIOR COURT OF THE STATE OF CALI-
FORNIA:
Respondent, CITY OF LAFAYETTE, makes the
following return to the Peremptory Writ of Mandate
issued in this action:
At its regular meeting held on January 10, 2000, the
City Council of the City of Lafayette directed the City
Attorney to file the City’s Notice of Appeal of the judgment
granting the peremptory wit of mandate upon entry of a
final judgment that disposes of all causes of action be-
tween the parties. (See Morehart vs. County of Santa
re ae en ee ee Ty
App. 65
Barbara (1994) 7 C4th 725, 29 CR2nd 804; Nerhan vs.
Stinso Beach County Water District (1994) 27 CA4th 536,
33 CR2nd 10.
Dated: January 14, 2000
/s/ Charles J. Williams
Charles J. Williams, APC
Charles J. Williams
Attorney for Respondents
and Defendants
CITY OF LAFAYETTE
App. 66
IN THE SUPERIOR COURT OF THE STATE
OF CALIFORNIA IN AND FOR THE
COUNTY OF CONTRA COSTA
PETER G. LOEWENSTEIN NO. C98-03977
and HELEN LOEWENSTEIN, DECISION AND
Petitioners and Plaintiffs, ORDER -
vs. RE: RIPENESS
CITY OF LAFAYETTE, (Filed Jan. 27, 2000)
et al.,
Respondents and Defendants /
I have considered the briefs and arguments of the
parties concerning ripeness.
Defendant contends the question whether it has
taken Plaintiffs’ property is not ripe for adjudication
since Plaintiffs have not established that Defendant has
arrived at a final position regarding development of
Plaintiffs’ property. In particular, Defendant contends:
1) That Plaintiffs can proceed by application under the
Subdivision Map Act; 2) That Plaintiffs may be able to
develop the tank site independently of their residential
parcel. |
I reject Defendant’s arguments. The declaration of Ms.
Stone satisfies me that it would be futile for Plaintiffs to
proceed with an application under the Subdivision Map
Act. Defendant’s own planning staff has made that clear.
Further, as the Stone declaration also shows, there is no
reasonable possibility that Plaintiffs’ can develop their
landlocked tank site independent of their residential
parcel.
App. 67
I order this case set for a status conference before
Judge Rivera on February 28, 2000 at 8:30 a.m. at which
time a trial date can be set on the “taking” issue.
DATED: JAN 27 2000.
/s/ Richard L. Patsey
RICHARD L. PATSEY
JUDGE OF THE SUPERIOR
COURT
App. 68
Charles J. Williams, SBN 026659
Charles J. Williams, APC
Muir Parkway
1330 Arnold Drive, Suite 149
Martinez, California 94553
Telephone: (925) 228-3840
Facsimile: (925) 228-1703
Attorney for Respondent and Defendant
CITY OF LAFAYETTE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
PETER G. LOEWENSTEIN and ) Case No.
HELEN LOEWENSTEIN, ) C98-03977
Petitioners and Plaintiffs, ‘ ORDER RE
i ) TENTATIVE
j ee RULING
CITY OF LAFAYETTE, a Mumicipal, (Filed
Corporation, and DOES 1 through
50, inclusive, ) Apr. 24, 2000)
)
Respondents and Defendants. )
This matter came on for hearing on April 11, 2000,
before the Honorable Maria Rivera, Judge of the Superior
Court, Department 7, following the Court’s téntative
ruling on April 10, 2000 relating to the issue of whether or
not the City is liable to the Plaintiffs in inverse condemna-
tion.
Following the Court’s tentative ruling, Charles J.
Williams, Esq. requested argument; thereafter he ap-
peared on behalf of Defendant, CITY OF LAFAYETTE,
and David Bowie, Esq. appeared on behalf of Petitioners
App. 69 "
PETER G. LOEWENSTEIN and HELEN LOEWEN-
STEIN.
The Court, having considered the points and authori-
ties presented by Petitioners and Respondents, and having
considered the arguments of both Respondents and Peti-
tioners on the issue of inverse condemnation liability, it is
found, determined and ordered that the Court’s tentative
ruling stands as follows:
1. The Court cannot find on the record presented
that the City’s action was so objectively unrea-
sonable that it was made for no other reason than
to delay the proposed project. To the contrary the
City’s decision, though erroneous, was rational
and, as stated by Judge Patsy, not arbitrary or
capricious. Nor can a delay of a little over two
years for processing the application, the adminis-
trative appeals and this litigation be considered
an unreasonable delay that results in a taking. As
stated in Landgate, Inc. vs. California Coastal
Commission (1998) 17 C4th 1006, 73 CR2nd 841,
the “normal” permit process includes the period in
which the property owner must litigate over
threshold questions that must be resolved relat-
ing to the underlying project. No case cited holds
that a two year time delay for resolving this kind
of threshold issue constitutes an unreasonable de-
lay;
2. Regarding the remaining theory for taking,
described by the City as the ad hoc balancing test,
whether or not there has been a taking cannot be
determined on the existing record because there
are disputed issues of fact. Further, the determi-
nation of whether there has been a taking under
Penn Central Transportation Co. vs. City of New
York (1978) 438 US 104 and Kavanau vs. Santa
App. 70
Monica Rent Control Board (1997) 16 C4th 761,
66 CR2nd 681 requires additional evidence that
must is be inextricably intertwined with issues of
valuation. Accordingly, the remaining issues for
trial are:
(1) whether there has been a “regulatory
taking”, and if so
(2) the amount of “just compensation”
The issue of whether or not there has been a regula-
tory taking is set for an evidentiary hearing on June 12,
2000.
Dated: April 18, 2000
/s/ MARIA P. RIVERA
The Honorable Maria Rivera
Judge of the Superior Court
Approved as to Form:
/s/ David J. Bowie 4/12/00
David J. Bowie, Esq. Date
Attorney for Petitioners/Plaintiffs
PETER %. LOEWENSTEIN and
HELEN LOEWENSTEIN
App. 71
IN THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA IN AND FOR THE COUNTY
OF CONTRA COSTA
PETER G. LOEWENSTEIN and )
HELEN LOEWENSTEIN, )
Plaintiffs,
vs.
CITY OF LAFAYETTE,
Defendant.
No. C98-03977
NOTICE OF
RECUSAL
(Filed May 30, 2000)
i a
Upon due reflection and consideration, the Court has
decided it must recuse itself from further proceedings in
this matter. The case is assigned for all purposes to
Department 18. The trial date of June 12 is confirmed.
Dated: May 30, 2000
/s/ Maria P. Rivera
Judge of the Superior Court
App. 72
Colette Stone, Esq. (SBN 129773)
BOORNAZIAN, JENSEN & GARTHE
1500 Newell Ave., 6th Floor
Walnut Creek, CA 94596
Telephone (510) 934-8400
David J. Bowie (SBN 50167)
William J. Bruegmann (SBN 94969)
BOWIE & BRUEGMANN, LLP
1331 N. California Blvd., Suite 780
Walnut Creek, CA 94596
Telephone (925) 939-5300
Telecopier: (925) 939-5392
Attorneys for Plaintiffs Peter and Helen
Loewenstein
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
PETER G. LOEWENSTEIN and ) Case No. C98-03977
HELEN LOEWENSTEIN, ) epROPOSEDI
Petitioners and Plaintiffs, STATEMENT OF
) DECISION
) (Filed Jul. 3, 2000)
vs.
CITY OF LAFAYETTE, et al.,
Respondents and Defendants. )
I
INTRODUCTION
This subject action was filed on September 24, 1998.
In their pleadings, the Plaintiffs sought administrative
and ordinary mandamus as well as declaratory relief.
The filed complaint also sought to recover damages
App. 73
based upon the Takings Clause of the Fifth Amendment
as incorporated against the State by the Fourteenth
Amendment of the United States Constitution whereby
compensation to a land owner was required under those
circumstances wherein a regulatory ruling of state or
municipal agencies has denied the owner the economi-
cally viable use of his land.
On March 9, 1999, this Court, the Honorable Rich-
ard L. Patsey, Judge, presiding, issued an Order Grant-
ing Petition for Writ of Mandate. Based on the
Administrative Record offered into evidence, the Court
concluded that granting the lot line adjustment which
Plaintiffs had sought did not violate any zoning, build-
ing or slope density ordinances or regulations of the
Respondent City of Lafayette. Thus, whether the stan-
dard of review was substantial evidence or arbitrari-
ness, the Respondent City’s denial was without support
in the Administrative Record. The Court specifically
rejected the Respondent City’s argument that the plain
language of Government Code Section 66412(d) must be
expanded to include a restriction that a greater number
of parcels not be created within an existing subdivision
by a lot line adjustment pursuant to said statute. A
Peremptory Writ of Mandate was subsequently issued;
in its return to the Writ the Respondent City declined to
reconsider its decision and instead elected to appeal the
Court’s determination.
Subsequent to issuance of the aforesaid Peremptory
Writ of Mandate, the remaining issues posed by the
Plaintiffs’ Takings claim were contested by means of a
series of motions made by the Respondent, City of
Lafayette.
App. 74
On January 27, 2000, this Court, the Honorable
Richard L. Patsey, Judge, presiding issued a Decision
and Order re Ripeness. That decision and Order fol-
lowed a motion filed by the Respondent City of Lafayette
in which it contended that the Plaintiffs’ Takings claims
were not ripe for adjudication on the grounds of Plain-
tiffs’ alleged failure to establish that the Responden
City of Lafayette had arrived at a final position regard-
ing development of Plaintiffs’ property. In particular,
the Respondent City contended that Plaintiffs could
proceed by application under the Subdivision Map Act to
Act; in addition, the Court factually found that there -
was no reasonable possibility that Plaintiffs could
develop their landlocked real property parcel independ-
ent of the lot line adjustment they sought through the
City of Lafayette pursuant to Government Code Section
66412(d). The Decision and Order of Judge Patsey
assigned the subject case to the Honorable Maria
Rivera, Judge of this Court, for the setting of a trial date
on Plaintiffs’ Takings Issues.
On April 24, 2000, this Court, the Honorable Maria
Rivera, Judge presiding, issued an Order in which she
held that a delay of approximately two years in processing
Plaintiffs’ Lot Line Adjustment Application, the adminis-
trative appeals, and this litigation might not be considered
an unreasonable delay which, in and of itself, might result
iceman
App. 75
in a Taking pursuant to Landgate Inc. vs. California
Coastal Commission (1998) 17 C 4th 1006. In that same
Order, Judge Rivera set for evidentiary hearing and trial
the issues as to whether or not there had been a taking of
Plaintiffs’ property pursuant to Penn Central Transporta-
tion Company vs. City of New York (1978) 438 U.S. 104
and Kavanau vs. Santa Monica Rent Control Board (1997)
16 C 4th, 761 and, if so, the amount of “just compensation”
due Plaintiffs. The issues of a “taking” and the amount of
“just compensation” due were bifurcated for purposes of
trial by Order of this Court, the Honorable William M.
Kolin, Judge, presiding, with the stipulation of counsel for
the parties.
A Statement of Decision was requested by the parties
and has been prepared based upon the Court’s tentative
decision placed of record upon conclusion of the “Takings”
evidence and after oral argument on the “Takings Issue”
and then after submission of the case following of evidence
and argument as to the “just compensation” issue. The
parties, through their respective attorneys, waived a jury
as to the second bifurcated issue of “just compensation”. A
Statement of Decision is intended to set forth an explana-
tion of the factual and legal basis of the decision as to the
principal controverted issues. Code of Civil Procedure
Section 632; Rules of Court, Rule 232.
Trial of this subject case commenced June 12, 2000, in
Department 18 of this Court before the Honorable William
M. Kolin, Judge presiding. The Plaintiffs were represented
by and through their attorneys, David J. Bowie and
Colette Stone. The Respondent, City of Lafayette, was
represented by its attorney, Charles J. Williams. Trial was
concluded June 14, 2000.
App. 76
II
THE CITY’S LIABILITY FOR A “TAKING” OF
PLAINTIFF’S REAL PROPERTY
Since the 1970’s, the use of inverse condemnation to
challenge government regulation of property has been
explosive in California and elsewhere. A regulatory taking
is often referred to as an unreasonable exercise of a public
entity’s police power. The United States Supreme Court
has recognized that a regulation of property that “goes too
far” may effect a taking of that property, though its title
remains in private hands. Penn. Coal Co. vs. Mahon (1922)
260 US 393, 415.
To escape liability for its interference with private
property rights, a public entity's regulatory action must be
“necessary” for the general good of the public. Keystone
Bituminous Cole Assn vs. DeBenedictis (1987) 480 U.S.
470, 503. There is no set formula for determining when
justice and fairness require that economic injury caused by
regulatory action be compensated. As stated in Penn
Central Transportation Company vs. City of New York
(1978) 438 U.S. 104, 124, these cases are essentially “ad
hoc” inquiries.”
A takings claim based on a legal theory that a regula-
tion has a proper public purpose but imposes so severe a
burden on the individual property as to amount to a
taking of private property for public use without prior
compensation was allowed in Lucas vs. South Carolina
Coastal Council (1992) 505 US 1003. In First English
Evangelical Lutheran Church vs. Los Angeles County
(1987) 482 U.S. 304, an ordinance which prohibited the
reconstruction of buildings in an interim flood
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