Monks v. City of Rancho Palos Verdes
| Decision Date | 01 October 2008 |
| Docket Number | No. B201280.,B201280. |
| Citation | 84 Cal. Rptr. 3d 75,167 Cal.App.4th 263 |
| Court | California Court of Appeals Court of Appeals |
| Parties | JOHN MONKS et al., Plaintiffs and Appellants, v. CITY OF RANCHO PALOS VERDES, Defendant and Respondent. |
Stuart Miller; Wellman & Warren and Scott W. Wellman for Plaintiffs and Appellants.
Kutak Rock, Edwin J. Richards and Julie R. Beaton for Defendant and Respondent.
In 1978, the City of Rancho Palos Verdes enacted an ordinance imposing a moratorium on the construction of new homes in the vicinity where landslides had recently occurred. Plaintiffs own vacant lots covered by the moratorium. Some have been waiting over 30 years to build homes on their properties. Plaintiffs' lots are zoned for single-family dwellings.
Eventually, the city council established an administrative process allowing the owners of undeveloped lots to seek an exclusion from the moratorium. After the city completed the installation of a sewer system, plaintiffs filed a joint application with the city for permission to build on their properties. In 2002, while the application was pending, the city council conducted a public hearing and toughened the criteria for obtaining an exclusion from the moratorium, approving a resolution making it impossible for plaintiffs to build.
Plaintiffs then filed this action, seeking a writ of administrative mandate to invalidate the resolution and alleging a claim for inverse condemnation based on the state takings clause. Under the state Constitution, "[p]rivate property may be taken . . . for public use only when just compensation . . . has first been paid to, or into the court for, the owner." (Cal. Const., art. I, § 19.) Plaintiffs argued they did not have a full and fair opportunity to present evidence before the city council and should be allowed to introduce additional evidence in the trial court on their takings claim. The trial court denied that request and ultimately found in the city's favor on the merits based solely on the administrative record. Plaintiffs appealed. On February 23, 2005, we concluded that plaintiffs were entitled to a trial on the takings claim and reversed (Monks v. City of Rancho Palos Verdes (Feb. 23, 2005, B172698) [] (Monks I)).
A trial followed. The case was tried to the bench. During the trial, plaintiffs settled their temporary takings claim, leaving the permanent takings claim for adjudication. Both sides relied in part on the prior administrative record and presented additional documentary evidence and the testimony of witnesses. The trial court determined that a permanent taking had not occurred, finding that the city had acted with proper authority in imposing the moratorium and passing the resolution. Judgment was entered accordingly.
(1) We conclude that the resolution, by implementing the moratorium and continuing to prevent plaintiffs from building on their properties, "deprive[d] [plaintiffs'] land of all economically beneficial use." (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1027 [120 L.Ed.2d 798, 112 S.Ct. 2886, 2899] (Lucas).) Consequently, the city had the burden at trial of proving that the construction ban was justified by "background principles of the State's law of property and nuisance." (Id. at p. 1029 ; see id. at pp. 1031-1032 .)
The city failed to meet its burden of justifying the moratorium—as applied to plaintiffs' lots—through evidence showing a reasonable probability of personal injury or property damage other than the possibility of damage to plaintiffs' desired homes in the distant future—damage that could be repaired. A permanent ban on home construction cannot be based merely on a fear of personal injury or significant property damage. Because the city did not carry its burden in light of the evidence and principles of state nuisance and property law, we reverse the judgment and remand for proceedings to determine an appropriate remedy.
The following evidence, facts, and procedural history are taken from our prior opinion (Monks I, supra, B172698) and the subsequent proceedings on remand.
In ancient times, about 100,000 to 120,000 years ago, there was a landslide in part of what is now known as the City of Rancho Palos Verdes. This ancient landslide covered two square miles on the south-central flank of the Palos Verdes Peninsula. Until relatively recent times, the landslide remained inactive and presented no problems. The area became populated with homes.
In August 1957, an area in the ancient landslide, east and southeast of plaintiffs' lots, began to move; this area is commonly known as the Portuguese Bend landslide. Between January 1974 and March 1976, another area in the ancient landslide, south and southwest of plaintiffs' lots, began to move; this area is commonly known as the Abalone Cove landslide. Both remain active.
On September 5, 1978, the city council enacted an urgency ordinance prohibiting the development of property in the ancient landslide area. Section 5 of the "landslide moratorium" states: (Rancho Palos Verdes Ord. No. 108U, § 5.) The ordinance exempts "[r]epairs or renovations of existing structures or facilities which do not increase the land coverage" and the "[r]econstruction of an existing building . . . [that has] been damaged or destroyed by fire or other casualty." (Id., § 4(a), (b).) In June 1982, the council amended the ordinance to allow a homeowner to "replace" a "damaged portion [of a residence] for a new equivalent portion without changing form or function." (Rancho Palos Verdes Ord. No. 155U, § 1.) Over the years, the council has enacted several other exemptions for existing homes located in the moratorium area. (See Rancho Palos Verdes Mun. Code, § 15.20.040.)
The city retained Robert Stone & Associates to perform a geotechnical investigation of the Abalone Cove landslide. In a February 28, 1979 report, Stone referred to the northern part of the moratorium area—where plaintiffs' lots are located—stating:
The Stone report noted that a southern portion of the moratorium area, unlike the northern part, was still active: "Where the landslide crosses Palos Verdes Drive South, it has a total displacement of nearly 2½ feet and is moving at an average rate of about 1 inch per week." The active slide area in the south extended northward to a point about one-fourth of a mile below plaintiffs' lots. The report recommended that four to six "dewatering" wells be placed near the "head" of the active slide to remove groundwater and that a sewer system be installed.
In 1987, the city received $10 million for abatement projects to improve plaintiffs' lots and the surrounding areas. Part of this money would later be used to install a sewer system for plaintiffs' properties.
In December 1991, the city council established an administrative process allowing lot owners to seek an exclusion from the moratorium. To be exempt, the owner had to show that the proposed residence would "not aggravate any existing geologic conditions in the area." (Rancho Palos Verdes Mun. Code, § 15.20.100.C.3.)
On May 26, 1993, Perry Ehlig, the city geologist, sent a memorandum to the city's director of public works, proposing that the moratorium area be divided into eight zones for purposes of discussing remediation efforts and residential development. The city agreed. Plaintiffs' lots are located in zone 2 (Zone 2). As Ehlig indicated, each zone has its own unique characteristics. Zone 1 (Zone 1) consists of about 550 acres of "[u]nsubdivided land unaffected by large historic landslides and [is] located uphill or to the west of subdivided areas." It is the top, or northernmost, zone and curves downward to the southwest, extending to the ocean. By curving in a southwestern direction, Zone 1 becomes the western border for the entire moratorium area. Zone 2, which covers approximately 130 acres, consists of "[s]ubdivided land unaffected by large historic landslides"; it is located below Zone 1. Zone 6 (Zone 6) occupies the eastern portion of the moratorium area, covers about 210 acres, and includes parts of the Portuguese Bend landslide; it touches Zone 2's eastern border where Zone 2 is approximately 425 feet from north to south. Zone 3 (Zone 3), the smallest zone, with about 15 acres, is "[u]nsubdivided land unaffected by large historic landslides and [is] located seaward of Sweetbay Road"; at its northernmost point, Zone 3 abuts about one-fourth of the southeastern line of Zone 2. Zone 5 (Zone 5), approximately 90 acres in size, is "[l]and affected by the Abalone Cove landslide and adjacent land where minor movement has occurred due to loss of lateral support"; the northern portion of Zone 5 runs along the south-central...
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