Brost v. City of Santa Barbara

• Decision Date: 25 March 2015
• Docket Number: 2d Civil No. B246153
• Court: California Court of Appeals Court of Appeals
• Parties: LUKE BROST et al., Plaintiffs and Respondents, v. CITY OF SANTA BARBARA, Defendant and Appellant.

LUKE BROST et al., Plaintiffs and Respondents, v. CITY OF SANTA BARBARA, Defendant and Appellant.

2d Civil No. B246153

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

March 25, 2015

ORDER MODIFYING OPINION AND DENYING REHEARING[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on March 25, 2015, be modified as follows:

On page 22, the beginning of the third sentence in the first full paragraph is modified to state "The City cites" instead of "Plaintiffs cite," so that the sentence now begins

The City cites no authority stating that plaintiffs must rebuild their homes . . .

[There is no change in the judgment.]

Respondents' petition for rehearing is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 1342979)

(Santa Barbara County)

Plaintiffs Luke Brost, Lavell and Louise Canley, and Ruben and Pam Barajas, through their respective trusts, own three parcels of land in an active landslide area known as Slide Mass C of the Conejo Slide. An ordinance adopted by the City of Santa Barbara (City) in 1997 prohibits new construction on properties entirely within that slide mass. (See Santa Barbara Mun. Code (SBMC), ch. 22.90.)

Plaintiffs resided on the properties until their homes were destroyed by a wildfire in November 2008. When plaintiffs inquired about rebuilding their homes, the City maintained it had no discretion to permit reconstruction and declined to amend the ordinance to provide an exemption. The trial court determined the ordinance, as applied to plaintiffs, constituted an unlawful regulatory taking of their properties. To avoid having to compensate plaintiffs for a permanent taking, the City amended the ordinance in April 2012 to allow reconstruction. The court awarded plaintiffs damages for a temporary taking plus attorney fees and costs.

The City raises two arguments on appeal. First, it contends plaintiffs' takings claim is not ripe for consideration because they failed to file formal applications to rebuild their homes. The trial court rejected this contention, finding the filing of development applications would have been futile because the City lacked discretion to permit any development on plaintiffs' properties. Given the certainty of the properties' permitted uses, we agree that plaintiffs were not required to file formal development applications. Because the 1997 ordinance precludes all development, the City's inevitable rejection of plaintiffs' development applications was not necessary for the court to determine the extent of permitted development on the properties. (See Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 283 (Monks); Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1285, 1300-1301 (Dunn).)

Second, the City asserts the moratorium on new construction was justified under principles of state nuisance law. The trial court determined the City failed to meet its burden of showing that reconstruction of plaintiffs' homes would create a nuisance. It found that, at best, uncertainty exists regarding the stability of the geology within Slide Mass C. We conclude substantial evidence supports this finding. As stated in Monks, uncertainty regarding the area's geological stability "is not a sufficient basis for depriving a property owner of a home." (Monks, supra, 167 Cal.App.4th at p. 306.) We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Canleys acquired the single-family residence at 474 Conejo Road in 1970. Brost purchased the neighboring residence at 478 Conejo Road in 1992. The Barajases acquired the residence behind the Canleys' property, at 17 Ealand Place, in 1975. The properties are entirely within the portion of the Conejo Slide known as Slide Mass C.

Approximately 30 parcels are partially or entirely within the boundary of Slide Mass C. Of the parcels entirely within Slide Mass C, 13 have been developed. As discussed below, these include plaintiffs' three homes, which were destroyed by fire in2008, a home destroyed by a landslide in 1983, five homes destroyed by a slide in 1998, and four remaining homes.

In the 1980's, the generally slow-moving Conejo Slide had two larger movements, which broke utility lines, blocked a portion of Conejo Road, partially collapsed one home and adversely impacted three others. The City commissioned a geological report which recommended, among other things, a moratorium on new construction within Slide Mass C. Based on that report, the City adopted SBMC Ordinance No. 4294, which prohibited new construction subject to review of the ordinance every five years. The City extended the prohibition in 1991, but added a provision allowing new construction on lots partially within Slide Mass C, as long as the proposed building site is at least 25 feet outside of its boundary. (See SBMC Ord. No. 4698.)

In 1997, the City determined, based on updated geological reports, that "[t]he earth within the boundary of Slide Mass C is unstable; structures and other property on Slide Mass A, Slide Mass B, and Slide Mass C have been damaged because of that instability; and further damage to structures and property within the boundary of Slide Mass C is highly probable." Consequently, the City adopted SBMC Ordinance No. 5030, which added Chapter 22.90 to its Municipal Code (Chapter 22.90). Subject to limited exceptions, Chapter 22.90 permanently enjoins "[a]ll new construction . . . on the parcels which are located entirely or partially within the boundary of Slide Mass C," so as to allow the area to return to an undeveloped state upon expiration of the useful life of the existing buildings.

Chapter 22.90 defines "New Construction" as "any man-made change to improved or unimproved real property after June 11, 1991, including, but not limited to, buildings or other residential structures, mining, dredging, filling, grading, paving, excavation or drilling operations, which requires a building permit." (SBMC, ch. 22.90.020, subd. C.) The exceptions include (1) routine repairs and maintenance to residential structures, roads, driveways and utilities, (2) remodeling of the interior of existing homes and (3) additions to an existing structures which do not exceed 150 squarefeet during any 24-month period. (Id. at ch. 22.90.030, subd. C.) An exemption also is possible for new construction that is at least 25 feet outside the boundary of Slide Mass C. (Id. at ch. 22.90.040, subd. A.)

The 1998 slide occurred after a series of heavy winter rains. In addition to destroying five homes within Slide Mass C, it caused the City to red-tag the Barajas home because the garage was pushing up against the residence. The Canley home was yellow-tagged due to broken waste piping and sanitation concerns. The Brost home was green-tagged as safe. The City established a Conejo Slide hazardous mitigation program which qualified for state and federal disaster assistance funds. Under this program, the City formed a nonprofit corporation and offered to purchase 11 properties within Slide Mass C. It ultimately purchased the five properties where the homes were completely destroyed.

The City lifted the red-tag on the Barajas home in 2001 after the structure was stabilized. During that time period, the owners of a neighboring property within Slide Mass C requested that Chapter 22.90 be amended to allow the rebuilding of homes destroyed by a fire or other non-geologic catastrophe. The City rejected the request, concluding the proposed amendment could not be justified based on the "area's landslide movement, the original 1984 study and analysis of Geotechnical Consultants, continued subsequent landslide movement that has substantially damaged several existing homes, and the recent slide analysis and recommendations of [the City's] Engineering Geologist Consultant."

A wildfire, known as the "Tea Fire," swept through Santa Barbara in 2008, destroying plaintiffs' homes and more than 150 other residences. Plaintiffs and others who had lost their homes retained the City's former chief building official, Roy Harthorn, to assist them in obtaining permits to rebuild. Harthorn met numerous times with George Estrella, the successor chief building official, who determined plaintiffs were ineligible for building permits under Chapter 22.90. Estrella explained that while he had some discretion to issue a building permit for new construction on a parcel that is at least 25feet outside Slide Mass C, he had no such discretion for properties entirely within that slide mass.

Harthorn completed a master building application for the Barajas property, which included drawings of their previous home with a "specific request to reconstruct [the] home using those plans as a general guide." When Harthorn showed the drawings to Estrella during a meeting on January 7, 2010, Estrella said "[he] would not authorize [the request] to be processed where he would authorize others outside the slide boundary to be processed." Estrella also stated that City staff would not support an amendment of Chapter 22.90 to allow development of those properties.

At Harthorn's recommendation, plaintiffs and other homeowners retained Robert Hollingsworth, an engineer and geologist, to re-evaluate the limits of the Conejo Slide and to assess whether burned homes within the active slide area could safely be rebuilt. Hollingsworth prepared a report in May 2009, in which he concluded that construction should be allowed at the owner's risk because future movement rates should not exceed those in the past due to recent drainage improvements. Frank Kenton, the City's retained engineer and geologist, disagreed. He opined that although the slide movement historically has...