Thursday, October 2, 2008
Landslide Area Construction Moratorium Was a Taking – C.A.
By SHERRI M. OKAMOTO, Staff Writer
A Rancho Palos Verdes ordinance placing a moratorium on construction of new homes in an active landslide area deprived the land of all economically beneficial use and was an unconstitutional taking, as-applied to the owners of undeveloped lots in the region, this district’s Court of Appeal held yesterday.
Div. One reversed Los Angeles Superior Court Judge Cary H. Nishimoto’s decision in favor of the city, ruling that a future possibility of repairable damage to the landowners’ desired homes did not satisfy the city’s burden of justifying the city’s uncompensated taking.
The city enacted the ordinance imposing a moratorium on new construction near the south central flank of the Palos Verdes Peninsula following landslides in the areas known as Portuguese Bend and Abalone Cove.
It later established an administrative process for landowners to seek an exclusion from the moratorium if the landowners could demonstrate that the proposed constriction would not aggravate any existing geologic conditions in the area and granted several exclusions over the years. However, after the 18th hole of a beachfront golf course suddenly separated from the rest of the course and slid 100 feet toward the ocean, the city approved a resolution toughening the criteria for obtaining exclusions.
Plaintiffs, who own 16 vacant lots zoned for residential use in areas covered by the moratorium about one linear mile northwest of the golf course, had applied jointly for permission to build on their properties, and the application remained pending before the ordinance was changed so they filed suit seeking a writ of administrative mandate to invalidate the modified ordinance and alleging a claim for inverse condemnation.
Nishimoto found in the city’s favor based solely on the administrative record, but the Court of Appeal reversed, holding that plaintiffs were excused from exhausting their administrative remedies and entitled to a trial on the takings claim.
After a bench trial, Nishimoto again found in the city’s favor, concluding that the moratorium did not constitute a “permanent” taking because the plaintiffs could still seek an exclusion to it through the city’s administrative process. He also opined that the risk of significant land movement could be remedied under state nuisance law.
But Presiding Justice Robert M. Mallano wrote on appeal that Nishimoto’s findings were precluded by the law, and were not supported by substantial evidence.
Mallano explained that the ordinance was a permanent taking because the appellate court had previously determined that any effort by plaintiffs to utilize the city’s revised administrative process would have been futile.
Citing the U.S. Supreme Court’s 2002 decision in Lucas v South Carolina Coastal Council, 505 U.S. 1003, Mallano wrote that the city’s complete elimination of plaintiffs’ property’s values was categorically a compensable government taking unless the city could show it could obtain an injunction against the construction of homes on the plaintiffs’ lots under common law nuisance principles.
Noting the differing and sometimes conflicting views of numerous reports and witnesses at trial, Mallano reasoned that the trial court could not have made a definitive finding regarding the geologic stability of the plaintiffs’ properties.
“A permanent ban on home construction cannot be based merely on a fear of personal injury or significant property damage,” the jurist concluded, and ordered the case remanded for further proceedings to determine an appropriate remedy.
Mallano was joined in his opinion by Justice Frances Rothschild and Retired Justice J. Gary Hastings of Div. Four of this district’s Court of Appeal, sitting by assignment.
Justice Frances Rothschild and Retired Justice J. Gary Hastings of Div. Four of this district’s Court of Appeal, sitting by assignment, joined Mallano in his opinion.
Stuart Miller and Scott W. Wellman of Wellman & Warren represented the landowners. Kutak Rock, Edwin J. Richards and Julie R. Beaton represented the city.
The case is Monks v. City of Rancho Palos Verdes, 08 S.O.S. 5581.
Copyright 2008, Metropolitan News Company