Palmer v. City of Ojai

Decision Date03 March 1986
Citation223 Cal.Rptr. 542,178 Cal.App.3d 280
CourtCalifornia Court of Appeals Court of Appeals
PartiesHoward PALMER et al., Plaintiffs and Appellants, v. CITY OF OJAI et al., Defendants and Respondents. Civ. B003987, B005635.
Drescher, McConica & Young, Ventura, Fadem, Berger & Norton and Michael M. Berger, Santa Monica, for plaintiffs and appellants

Myers, Widders & Gibson and Monte L. Widders, City Atty., Ventura, Burke, Williams & Sorensen and Katherine E. Stone, Los Angeles, for defendants and respondents.

L. THAXTON HANSON, Acting Presiding Justice.

Consolidated appeals taken from judgments rendered in superior courts in Ventura County.

Petitioners Howard Palmer, doing business as Palmer Development Company and Ojai Investments, a California limited partnership, sought a writ of mandate to compel certain actions by respondents including the issuance of a building permit for a neighborhood commercial shopping center in Ojai. Named as respondents were the City Council, the Planning and Building Department, and the Planning Commission of the City of Ojai, and their individual members. The petition was denied; judgment was entered for respondents and a timely appeal from the judgment was taken. 1

Plaintiffs also filed a complaint for damages against the City of Ojai, the City Council, the Planning and Building Department and the Planning and Architectural Commission, as well as Does, seeking $6,375,000 in damages (as well as attorney fees, expenses and interest) for City's assertedly wrongful refusal to take action on the development project, i.e., the shopping center, alleging various theories of recovery.

Six causes of action were stated: (1) violation of federal civil rights, pursuant to 42 United States Code section 1983; (2) violation of California Constitutional rights; (3) inverse condemnation; (4) failure to discharge mandatory duties; (5) breach of the implied covenant of good faith and fair dealing; and (6) entitlement to declaratory Defendants' demurrer to the amended complaint was sustained without leave to amend save for two causes of action, the fourth and the sixth. Plaintiffs then filed a second amended complaint alleging four causes of action for failure to discharge mandatory duties and negligence per se. Defendants again demurred and the demurrer was sustained without leave to amend. By stipulation, the parties agreed to the filing of a third amended complaint, with defendants' demurrer sustained without leave to amend.

relief. The complaint was subsequently amended to add a cause of action for negligence per se.

Judgment was entered for defendants; a timely appeal was taken. The two matters have been consolidated for review in this court. With respect to the complaint for damages, a joint appendix in lieu of the clerk's transcript has been prepared, pursuant to rule 5.1 of the California Rules of Court.

FACTUAL SUMMARY AND PROCEDURAL HISTORY

On December 18, 1980, Developer filed an "Environmental Assessment Application" with defendants concerning a plan to develop 31 acres of land appropriately zoned on the Maricopa Highway in Ojai, near the local high school. Developer sought a subdivision permit and a conditional use permit, as well as a building permit.

The acreage subject to proposed development had formerly been a farm, but had not been used for agricultural purposes for years. It was filled with shrub grass and weeds. The project contemplated the use of 21 acres for the construction of 73 housing units. The remainder was to be used for a shopping center which would house a grocery store and a junior department store along with a restaurant, banking facilities and service stores. Provision had been made for parking. The conditional use permit was necessary for the grocery store and the junior department store; the current general plan proposed zoning included the remainder of the proposed commercial and residential usages. With the exception of drainage problems, increased noise and glare, no particular environmental or historical concerns were noted.

Prior to the December 18, 1980 filing, Developer had discussed the project with City officials for nearly a year. An earlier filing had been rejected because of a missing form; the December 18, 1980 filing included a site plan.

There was no formal response by City to the application, except City's planning director marked it "accepted" as of February 1981. Discussions continued between City and Developer. On April 14, 1981, City decided that an "Environmental Impact Report" (EIR) was required. Environmental discussions continued between City and Developer. Developer paid for the proposed EIR; Developer also hired consultants who reported to City on such matters as oak trees on the property for which City had expressed concern.

In September 1981, Developer complained that no EIR consultant had been selected by City. An EIR was prepared but rejected by City in March 1982. In May 1982, Developer made specific requests for the subdivision permit and the conditional use permit. By August 1982, the second EIR, for which Developer had also paid, was not complete and Developer complained in writing about the passage of time.

On January 20, 1983, Developer requested issuance of the necessary permits. On January 25, 1983, Developer submitted building plans and requested a building permit. The request was refused. On February 8, 1983, two meetings were held on the same evening by the Ojai Architectural and Planning Commission and the City Council of Ojai. Petitions had been circulated among Ojai citizens about the proposed Development Project, and the public mood was generally disapproving. At the meetings local citizens spoke adversely about the Project, stressing the need to protect Ojai's artistic simplicity.

The planning commission denied Developer's requests for the necessary permits. The city council held a public hearing and denied lot division and certification of the EIR.

This two-pronged litigation ensued for mandate and for damages as the result of City's refusal to permit Developer to proceed. Developer complained below, as it does here, that City, by protracted delay, had not complied with applicable statutory law.

THE STATUTORY SCHEME

In 1977 the California Legislature added chapter 4.5, entitled "Review and Approval of Development Projects" to the Government Code, commencing with section 65920. (Stats.1977, ch. 1200, p. 3993, § 1.)

In section 65921, the Legislature declared: "The Legislature finds and declares that there is a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects. Consequently, the provisions of this chapter shall be applicable to all public agencies, including charter cities." In the years since enactment, certain clarifying and expanding amendments have been made, but there have been no material alterations in the original statutory scheme.

Chapter 4.5 contained some definitions which are pertinent to our discussion here. Section 65927 defined development in a very broad manner; included was the subdivision of land pursuant to the Subdivision Map Act (Gov.Code, § 66410 et seq.), and the construction of all private as opposed to public facilities. 2 A development project was one which involved the issuance of a permit for construction or reconstruction but not a permit to operate. ( § 65928.)

A "lead agency" meant the public agency which has the principal responsibility for approving a project ( § 65929) and a "responsible agency" was defined as "a public agency, other than the lead agency, which has responsibility for carrying out or approving a project." ( § 65933.)

With respect to "expeditious decision-making," one object of legislative concern, the time limitation sections of chapter 4.5 began with section 65943, which, as it read during the events which gave rise to this litigation, stated: "Not later than 30 calendar days after any public agency has received an application for a development project, such agency shall determine in writing whether such application is complete and shall immediately transmit such determination to the applicant for the development project. If such written determination is not made within 30 days after receipt of the application, the application shall be deemed complete for the purposes of this chapter. In the event that the application is determined not to be complete, the agency's determination shall specify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete." (Emphasis added.)

This section was substantially amended by Statutes 1984, chapter 1723, section 1, to provide procedures for handling disputes that might develop between the public agency and the applicant concerning what constitutes "completeness" of an application for section 65943 purposes, but significantly, the 30-day time limitation remained intact.

The next time limitations were contained in sections 65950 and 65952. Section 65950 states: "Any public agency which is the lead agency for a development project shall approve or disapprove such project within one year from the date on which an application requesting approval of such a project has been received and accepted as complete by such agency. As specified in sections 21100.2 and 21151.5 of the Public Resources Code, the period specified With respect to the consequences for failing to comply with these time limitations, section 65956 declared:

                in such sections shall also begin on such date."  (Emphasis added.) 3  Section 65952 states:  "Any public agency which is a responsible agency for a development project shall approve or disapprove such project within whichever of the following time periods is longer:  [p] (a) Within 180 days
...

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