Guinnane v. City and County of San Francisco

Decision Date19 November 1987
Citation241 Cal.Rptr. 787,197 Cal.App.3d 862
CourtCalifornia Court of Appeals Court of Appeals
PartiesRoy GUINNANE et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. A034516.

Law Offices of Charles O. Morgan, Jr. and Paul Kleven, San Francisco, for plaintiffs and appellants.

Louise H. Renne, City Atty. and Andrew W. Schwartz, Deputy City Atty., San Francisco, for defendants and respondents.

RACANELLI, Presiding Justice.

Plaintiffs and appellants, 1 real estate developers, brought an inverse condemnation action against defendants on a theory that the city's conduct in delaying action on a building permit application to construct four single-family houses on four adjoining lots, pending environmental review, was so unreasonable as to amount to a taking without just compensation. Following an order granting summary judgment in favor of the city, plaintiff appeals.

Factual Background

In 1979, plaintiff Roy Guinnane purchased four vacant lots located on Edgehill Way in San Francisco. In July 1980, the recreation and parks commission and the planning commission, acting jointly, designated an area known as "Edgehill Woods," which included plaintiff's lots, for study for possible acquisition as a city park. Accordingly, Edgehill Woods was included in the recreation and open space element of the city's master plan.

In September 1980, plaintiff filed an application for a building permit. The "environmental evaluation" submitted with the permit application revealed plaintiff's intent to build four single-family houses on the lots. After an initial study, the city's planning department concluded the construction might have significant environmental effects and required an environmental impact report (EIR). 2 Thereafter, plaintiff hired a consultant to prepare a preliminary draft EIR, which ultimately was submitted in September 1981.

In October 1981, after a year-long study, the recreation and parks commission and the planning commission decided to acquire only a portion of Edgehill Woods; the area to be acquired did not include plaintiff's lots.

In December 1981, the planning commission amended the master plan to allow construction projects on lots which were not to be acquired. On January 14, 1982, the planning commission rescinded its requirement of an EIR for plaintiff's proposed development.

The planning commission's rescission of the EIR requirement for plaintiff's proposed development was conditioned upon another initial study. Following the initial study, the planning department concluded an EIR was not required but that a negative declaration was indicated. In that regard, the planning department requested plaintiff to submit certain information in support of the negative declaration. However, plaintiff failed to submit all of the requested information until more than three years later in September 1985.

On October 18, 1985, the city issued a negative declaration, amended in November in response to public comments.

Meanwhile, plaintiff filed his lawsuit in 1982, long before the city's environmental review was completed in November 1985. Due to plaintiff's failure to submit the requested data, plaintiff's building permit application had been cancelled in 1983. On December 30, 1985, plaintiff filed a new application. At the time city's motion for summary judgment came on for hearing (February 1986), plaintiff's new building permit application had not yet been acted upon.

Discussion
I.

It has long been established that inverse condemnation is not limited to a direct physical invasion. A "taking" may occur when a land use regulation "goes too far." (Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322.) At the time of the proceedings below, California law declared that a landowner could not maintain a suit for damages resulting from a regulatory taking; that the landowner's remedy was limited to an action for mandamus or declaratory relief to invalidate and remove the challenged regulation. (Agins v. City of Tiburon (1979) 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25, affd. 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106.)

Given that settled law, plaintiff could not, and did not, assert a regulatory taking. Instead, plaintiff sought to rely on the rule announced in Klopping v. City of Whittier (1972) 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345, that a landowner may recover damages for unreasonable precondemnation activities. Such reliance was wholly misplaced.

In Klopping, the city first initiated eminent domain proceedings against plaintiffs' property, then dismissed the action announcing its intention to condemn the property in the future. Plaintiffs sued in inverse condemnation alleging that as a result of the city's announced intention, a cloud was placed over the property resulting in loss of rentals and diminution of the value of the property. The Klopping court held that under such circumstances the landowners could maintain an action for inverse condemnation compelling the city to proceed with its announced intention to condemn and to pay the landowners the market value of the property before the cloud was created and the value declined. (8 Cal.3d at p. 52, 104 Cal.Rptr. 1, 500 P.2d 1345.)

Plaintiff seems to suggest that city's delay in acting upon his application constituted unreasonable precondemnation activities. But plaintiff overlooks a fundamental distinction between this case and Klopping: unlike Klopping, there was never any announcement by the city of an intention to condemn plaintiff's property. At most, the property was properly designated as open space within the master plan, to be studied for possible acquisition as a public park.

Of course, a planning designation is not the functional equivalent of an announced intent to condemn. Thus, in Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111, the court held that a general plan designation of plaintiff's property as a street did not give rise to an action for inverse condemnation.

"The plan is by its very nature merely tentative and subject to change. Whether eventually any part of plaintiff's land will be taken for a street depends upon unpredictable future events. If the plan is implemented by the county in the future in such manner as actually to affect plaintiff's free use of his property, the validity of the county's action may be challenged at that time."

(Id., at p. 118, 109 Cal.Rptr. 799, 514 P.2d 111.)

The Selby court noted the basic difference from Klopping in concluding that the adoption of a general plan is "several leagues short of a firm declaration of an intention to condemn property." (Selby Realty Co. v. City of San Buenaventura, supra, 10 Cal.3d at p. 119, 109 Cal.Rptr. 799, 514 P.2d 111.) Moreover, the court reasoned,

"If a governmental entity and its responsible officials were held subject to a claim for inverse condemnation merely because a parcel of land was designated for potential public use on one of these several authorized plans, the process of community planning would either grind to a halt, or deteriorate to publication of vacuous generalizations regarding the future use of land."

(Id., at pp. 120-121, 109 Cal.Rptr. 799, 514 P.2d 111; see also Cambria Spring Co. v. City of Pico Rivera (1985) 171 Cal.App.3d 1080, 1097-1098, 217 Cal.Rptr. 772 [adoption of redevelopment plan]; Dale v. City of Mountain View (1976) 55 Cal.App.3d 101, 107, 127 Cal.Rptr. 520 [amendment to general plan to restrict user of property to open space]; Navajo Terminals, Inc. v. San Francisco Bay Conservation etc. Com. (1975) 46 Cal.App.3d 1, 120 Cal.Rptr. 108 [adoption of resolution establishing property as a park].)

In the present case, we are likewise compelled to conclude that the city's designation of plaintiff's property as a site to be studied for possible acquisition as a public park did not amount to an announced intention to condemn so as to justify an action in inverse condemnation.

II

After the briefs were filed in the present case, the U.S. Supreme Court decided First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1987) 482 U.S. 304 [96 L.Ed.2d 250, 107 S.Ct. 2378] (hereafter First English ). In that case the Supreme Court overruled the California Supreme Court's decision in Agins v. City of Tiburon, supra, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25, and held damages were recoverable for a regulatory taking even if the taking is temporary. In a supplemental brief filed with this court, plaintiff now argues that he need no longer rely on Klopping for his claim for damages and bases his claim for damages on the traditional theory of a regulatory taking as discussed in First English. Our analysis of such alternate theory of recovery yields a result unfavorable to plaintiff.

Although the Supreme Court has determined that a temporary regulatory taking is compensable, there is nothing in First English which changes the rule that a "taking" must occur before compensation may be claimed. In First English, the court assumed a taking had occurred. On the appeal from the trial court's order striking a portion of the complaint, the lower court and the Supreme Court accepted as true the allegation that the county's ordinance denied the landowner all use of the property. Thus, the court framed the issue before it as "whether abandonment by the government requires payment of compensation for the period of time during which regulations deny a landowner all use of his land." (First English, supra, 107 S.Ct. at p. 2387, emphasis added.) The court remanded the matter for further proceedings on whether a regulatory taking had actually occurred: "whether the ordinance at issue actually denied appellant all use of its property or whether the county might avoid the conclusion that a compensable taking had occurred by...

To continue reading

Request your trial
24 cases
  • Griffin Homes, Inc. v. Superior Court (City of Simi Valley)
    • United States
    • California Court of Appeals
    • 29 Octubre 1990
    ...Lutheran Church v. County of Los Angeles, supra, 210 Cal.App.3d 1353, 258 Cal.Rptr. 893; Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862, 868-869, 241 Cal.Rptr. 787.) It follows that Griffin's claim for inverse condemnation is premature and not ripe for adjudication. ......
  • Smith v. City and County of San Francisco
    • United States
    • California Court of Appeals
    • 14 Noviembre 1990
    ...sustained where face of complaint established no deprivation of all reasonable use of property]; Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862, 868, 241 Cal.Rptr. 787 [plaintiff could not contend he had been denied all use of his property]; Pan Pacific Properties, I......
  • Tahoe Regional Planning Agency v. King
    • United States
    • California Court of Appeals
    • 26 Junio 1991
    ...action. (Duffy v. City of Long Beach (1988) 201 Cal.App.3d 1352, 1358-1359, 247 Cal.Rptr. 715; Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862, 241 Cal.Rptr. 787 cert. denied, 488 U.S. 823, 109 S.Ct. 70, 102 L.Ed.2d 47 (1988); Pier Gherini v. California Coastal Com. (......
  • Border Business Park v. City of San Diego
    • United States
    • California Court of Appeals
    • 19 Septiembre 2006
    ...169; Tilem v. City of Los Angeles (1983) 142 Cal.App.3d 694, 708-709, 191 Cal.Rptr. 229; Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862, 864-867, 241 Cal.Rptr. 787.) We note, however, that the express language of Klopping's holding does not appear to require an annou......
  • Request a trial to view additional results
3 books & journal articles
  • Lucas v. South Carolina Coastal Council: the categorical and other "exceptions' to liability for Fifth Amendment takings of private property far outweigh the "rule".
    • United States
    • Environmental Law Vol. 29 No. 4, December 1999
    • 22 Diciembre 1999
    ...are considered part of the ordinary burden of living in a regulated society. See Guinnane v. City & County of San Francisco, 197 Cal. App. 3d 862, 868-70 (Cal. Ct. App. (127) See Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802-03 (Fed. Cir. 1993) (holding that any mistakes or delay ......
  • The taking issue in the Ninth Circuit after Lucas.
    • United States
    • Environmental Law Vol. 24 No. 3, July 1994
    • 1 Julio 1994
    ...(154.) First Evangelical Church v. County of Los Angeles, 482 U.S. 304 (1987). (155.) Guinnane v. City and County of San Francisco, 241 Cal. Rptr. 787, 789 Cal.Ct.App (1988), cert. denied, 488 U.S. 823 (1988). (156.) Levald, Inc., 998 F.2d at 686. (157.) Id. at 686-89. (158.) Id. at 687. (1......
  • Regulatory Takings Since the Supreme Court Trilogy, Continued
    • United States
    • Colorado Bar Association Colorado Lawyer No. 21-1, January 1992
    • Invalid date
    ...Tocco v. New Jersey Council on Affordable Housing, 576 A.2d 328 (N.J.App.Div. 1990); Guinnane v. City and County of San Francisco, 241 Cal.Rptr. 787 (Cal.App. 1 Dist. 1987). 26. Bank of the Orient v. Town of Tiburon, 269 Cal.Rptr. 690 (Cal.App. 1990); N.J. Shore Builders v. Mayor, 561 A.2d ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT