Njd, Ltd. v. City of San Dimas

• Decision Date: 31 July 2003
• Docket Number: No. B160784.,B160784.
• Court: California Court of Appeals Court of Appeals
• Parties: NJD, LTD., Plaintiff and Appellant, v. The CITY OF SAN DIMAS et al. Defendants and Respondents.

2 Cal.Rptr.3d 818

110 Cal.App.4th 1428

NJD, LTD., Plaintiff and Appellant, v. The CITY OF SAN DIMAS et al. Defendants and Respondents.

No. B160784.

Court of Appeal, Second District, Division 5.

July 31, 2003.

Certified for Partial Publication.^*

Rehearing Denied August 18, 2003.

Review Denied November 12, 2003.

Newmeyer & Dillion, Newport Beach, Karen J. Lee and Paul L. Starita for Plaintiff and Appellant.

Brown, Winfield & Canzoneri, Vicki E. Land, Mark W. Steres and Tracy M. Noonan, Los Angeles, for Defendants and Respondents.

TURNER, P.J.

I. INTRODUCTION

NJD, Ltd., plaintiff, appeals from a judgment in favor of the defendants, the City of San Dimas (the city) and its city council. On appeal, plaintiff contends Judge Judith Ashmann-Gerst erroneously denied an in limine motion in connection with a facial regulatory takings challenge to amendments to the city's municipal code which restricted construction in a hillside area. Plaintiff further argues that Judge David P. Yaffe incorrectly denied its mandate petition alleging violations of the California Environmental Quality Act (Pub. Resources Code¹, § 21000 et seq.). In the published portion of this opinion, we will discuss the issue resolved by Judge Ashmann-Gerst—the evidence she could consider in resolving plaintiffs facial takings challenge to the constitutionality of the city's hillside zoning restrictions. We find no prejudicial error or abuse of discretion. Accordingly, we affirm the judgment.

II. BACKGROUND

Plaintiff owns approximately 200 acres of land in the city's northern foothills. The foothills area consists of nearly 3,000 acres of land, more than 900 of which are undeveloped and privately owned. The foothills are a sparsely populated area of steep terrain. The fire risk in the area is high. Roughly one-half the foothills area is occupied by the Angeles National Forest, parkland, an equestrian center, and a golf course.

On July 22, 1997, the city instituted a moratorium on development in the northern foothills area. The moratorium was in effect through July 22, 1999. During that time, a consultant under contract with the city studied development of the area and produced a report. An environmental impact report was subsequently prepared. Following public hearings, the city council approved a general plan amendment.² The city council also adopted the Northern Foothills Specific Plan, which was included in the San Dimas Municipal Code as Chapter 18.542.³ The city's actions are referred to collectively as "Amendment 99-1." It is undisputed plaintiff purchased its foothills property while the moratorium was in effect and the development study was ongoing, but before the development restrictions were enacted.

Plaintiff filed a mandate petition alleging California Environmental Quality Act violations. Judge Yaffe denied the petition. The matter was later tried on plaintiffs first amended complaint alleging inverse condemnation, due process and equal protection violations, and seeking declaratory relief. Judge Ashmann-Gerst found plaintiff had not established the elements of its claims. As noted above, plaintiff appeals from the judgment denying its writ petition and finding against it on its first amended complaint.

III. DISCUSSION

A. Inverse Condemnation

1. General principles of takings jurisprudence

a. The two constitutional provisions

The federal and state Constitutions guarantee real property owners "just compensation" when their land is "taken for public use...." (U.S. Const., 5th Amend.; Cal. Const., art. I, § 19.) The federal takings clause is made applicable to the states through the Fourteenth Amendment. (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592; Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 773, 66 Cal.Rptr.2d 672, 941 P.2d 851.) California's takings clause is somewhat broader in its application than its federal counterpart. Article I, section 19 of the California Constitution provides in part, "Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner." Unlike the Fifth Amendment federal takings clause which provides "nor shall private property be taken for public use, without just compensation," article I, section 19 of the California Constitution provides coverage for "damage[ ] for public use...." As a result, article I, section 19 of the California Constitution protects what the California Supreme Court has characterized as "`a somewhat broader range of property values'" than does the corresponding federal constitutional provision. (San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 664, 117 Cal.Rptr.2d 269, 41 P.3d 87; Hensler v. City of Glendale (1994) 8 Cal.4th 1, 9, fn. 4, 32 Cal.Rptr.2d 244, 876 P.2d 1043.) Aside from that difference, the California Supreme Court has construed the state and federal clauses congruently. (San Remo Hotel v. City and County of San Francisco, supra, 27 Cal.4th at p. 664, 117 Cal.Rptr.2d 269, 41 P.3d 87; see Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 957, 962-975, 81 Cal.Rptr.2d 93, 968 P.2d 993.)

b. The two types of takings— categorical and regulatory

i. The United States Supreme Court's analysis

The United States Supreme Court has identified two types of takings liability; categorical and regulatory takings. In Brown v. Legal Foundation of Wash. (2003) 538 U.S. 216, 231-235, 123 S.Ct. 1406, 1417-1418, 155 L.Ed.2d 376, the United States Supreme Court synthesized its prior decisions concerning the two types of takings: "`Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by "essentially ad hoc, factual inquiries," Penn Central [Transp. Co. v. City of New York (1978)] 438 U.S. [104], at 124, 98 S.Ct. 2646 designed to allow "careful examination and weighing of all the relevant circumstances." Palazzolo [v. Rhode Island, supra,] 533 U.S. [at p.] 636 (O'Connor, J., concurring).' " (See also San Remo Hotel v. City and County of San Francisco, supra, 27 Cal.4th at p. 664, 117 Cal.Rptr.2d 269, 41 P.3d 87.)

As to the first type, categorical takings, which are subject to per se rules, in Brown, citing its decision last year in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 321-323, 122 S.Ct. 1465, 152 L.Ed.2d 517, the United States Supreme Court held: "`When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, [citation], regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. [Citations.] Similarly, when the government appropriates part of a rooftop in order to provide cable TV access for apartment tenants [citation]; or when its planes use private airspace to approach a government airport [citation], it is required to pay for that share no matter how small.'" (Brown v. Legal Foundation of Wash., supra, 538 U.S. at p. 235, 123 S.Ct. at p. 1418; see Loewenstein v. City of Lafayette (2002) 103 Cal.App.4th 718, 728, 127 Cal.Rptr.2d 79.)

In Brown, again citing to its analysis in Tahoe-Sierra Preservation Council, the United States Supreme Court contrasted the categorical duty to compensate, which is subject to the straightforward application of per se rules, with regulatory takings as follows: "`But a government regulation that merely prohibits landlords from evicting tenants unwilling to pay a higher rent, [citation]; that bans certain private uses of a portion of an owner's property, [citations]; or that forbids the private use of certain airspace, [citation], does not constitute a categorical taking.'" (Brown, v. Legal Foundation of Wash., supra, 538 U.S. at p. 235, 123 S.Ct. at p. 1418, citing Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, supra, 535 U.S. at pp. 321-323, 122 S.Ct. 1465.) The United States Supreme Court in Brown characterized the differences between the categorical and regulatory takings as follows: "`"The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions." [Citations.]' " (Brown v. Legal Foundation of Wash, supra, 538 U.S. at p. 235, 123 S.Ct. at p. 1418, citing Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, supra, 535 U.S. at pp. 321-323, 122 S.Ct. 1465.)

In Palazzolo v. Rhode Island, supra, 533 U.S. at pages 617-618, 121 S.Ct. 2448, the United States Supreme Court identified two regulatory taking situations. The first is where a regulation denies a landowner all economically viable use of the property. The second compensable regulatory taking scenario occurs when a regulation places limitations on land use that fall short of a complete deprivation of all economically beneficial use of the property. In Palazzolo, the United States Supreme Court held: "[W]e have given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, we have observed, with certain qualifications ... that a regulation which `denies all economically beneficial or productive use of land' will require compensation under the Takings Clause. Lucas [v. South Carolina Coastal Council (1992) ] 505 U.S. [1003,] at 1015, 112 S.Ct. 2886 ; see also id., at 1035, 112 S.Ct. 2886 (Kennedy, J concurring); Agins v. City of Tiburon [ (1980) ] 447 U.S....