Toigo v. Town of Ross

• Decision Date: 30 October 1998
• Docket Number: No. A078486,A078486
• Citation: 70 Cal.App.4th 309,82 Cal.Rptr.2d 649
• Parties: Susanna TOIGO et al., Plaintiffs and Appellants, v. TOWN OF ROSS et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 649

82 Cal.Rptr.2d 649

70 Cal.App.4th 309

Susanna TOIGO et al., Plaintiffs and Appellants, v. TOWN OF ROSS et al., Defendants and Respondents.

No. A078486.

Court of Appeal, First District, Division 2, California.

Oct. 30, 1998.

Clement, Fitzpatrick & Kenworthy, Clayton Emerson Clement, Santa Rosa, for Appellants.

Shute, Mihaly & Weinberger, Fran M. Layton, San Francisco, and Susannah T. French, Hadden Wing Roth, San Rafael, for Respondents.

RUVOLO, J.

I. INTRODUCTION

By this action, appellants Susanna Toigo, H. Skip Berg and Brenda Berg (collectively, Toigo), sought to compel respondents the Town of Ross, the Town Council of the Town of Ross, and current and former town councilmembers Charles Goodman, Kelley Reid, Peter Barry, John Scott, and Mary Brown (collectively, the Town) to set aside the denial of Toigo's 1994 application for a five-lot subdivision on their hillside property. Toigo challenged the Town's decision on numerous grounds, three of which concern us here: 1) the Town abused its discretion in denying Toigo's subdivision application; 2) the Town is estopped from taking any action to deny Toigo's subdivision application by reason of the Town's prior approval of the subdivision's design; and 3) the regulation and restraint of Toigo's property constitutes a "taking" under the just compensation clause of the Fifth Amendment. (U.S. Const., 5th Amend.) The trial court rejected these arguments and entered judgment for the Town after denying Toigo's petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) ¹ and granting the Town's motion for summary adjudication (§ 437c, subd. (f)(1)). We affirm.

II. FACTS

In February 1989, Toigo purchased 36.5 acres of undeveloped property in the Town of Ross for $1.75 million. The property lies adjacent to Natalie Coffin Greene Park and Marin Municipal Water District lands. It is characterized by steep slopes, ridgelines, large numbers of oak trees, extensive native vegetation, rock outcroppings, and substantial areas of species habitat. The property is designated "Very Low-Density" in the "Ross General Plan," which restricts density to one to ten acres per dwelling unit. At the time of the underlying proceedings, the property was zoned R-1:B-5A, which requires a minimum lot size of five acres. It is located in the "Hillside Lot Hazard Zone," which permits construction of single-family homes provided that the environmental constraints typically found in Ross's steeply sloping hillsides can be avoided or mitigated.

On September 22, 1994, Toigo submitted a subdivision and related applications to the Town to subdivide the property into five residential lots, together with related access roadway, driveways, and utilities. Almost six months after receiving an initial letter of incompleteness from the Town, Toigo submitted a significantly revised subdivision map on April 17, 1995. Among other things, the revised map added a new 1,300-foot long access road and a 50,000 gallon water tank on portions of the property that were to be left undeveloped under the original application. On May 12, 1995, the Town again notified Toigo that their revised application was incomplete because it failed to provide all the necessary information relating to the revision. After receiving the required information, Toigo's application was deemed complete on June 15, 1995.

A staff report prepared on August 7, 1995, compared the revised application with Toigo's prior five-unit subdivision application which the Town denied in 1991. The Town's 1991 denial was primarily based on the inconsistency of Toigo's 1990 subdivision application with the open space provisions of the Ross general plan and zoning ordinance. Toigo filed a writ of administrative mandate to set aside the Town's decision. The trial court issued the writ, but the Court of Appeal upheld the project's denial on the ground that the Town did not abuse its discretion in finding Toigo's 1990 application was inconsistent with the general plan. (Berg v. Town of Ross (Feb. 24, 1995) A057967 [non pub. opn.].)

The report found that while the 1994 application contained substantial changes to the shape, size, boundaries and design of the five proposed lots and the access roadway, this revised design would result in environmental impacts "substantially more severe " than those considered in Toigo's 1991 application. (Italics added.) The report explains that "[t]he revised grading plan now proposed for the subdivision results in the disturbance of new areas, addition of fill to new areas, construction of additional retaining walls, construction of higher retaining walls, removal of additional trees and a doubling of the amount of excess earth for off-site disposal." The report also discussed relevant new information--such as the devastating 1991 Oakland hills fire--which added to the already serious safety concerns regarding the exceedingly steep grades of the proposed roadway and driveways.

At a July 13, 1995, public hearing on Toigo's subdivision application, staff, councilmembers and members of the public alike voiced serious concerns about the proposal, including fire safety, visual impacts, the effect of the project on the surrounding neighborhood, parking, grading, tree removal and lot design. In view of these pervasive concerns, the Town directed its staff to further analyze the proposal. The subsequent staff report issued July 28, 1995, documented the project's inconsistency with the Town's general plan, subdivision ordinance standards, and other land use requirements. The report observed, "An Environmental Impact Report was prepared for the 1990 application to develop a [five]-lot subdivision on this site. Despite the information obtained from this prior EIR, the current submittal is not an improvement over the earlier submittal.... [T]his proposal, in many respects, is actually worse than the 1990 submittal." The report concludes with the following advice: "[T]he applicant should redesign the project to propose On August 10, 1995, after providing Toigo additional time to respond to the staff report and hearing additional public testimony, the town council unanimously denied the development application and adopted findings regarding its environmental, safety and aesthetic impacts and its inconsistency with local planning requirements. The Town found that preparation of an environmental impact report (EIR) would be a costly exercise in futility "because the project is fundamentally flawed and is inconsistent with numerous provisions of the General Plan, zoning regulations and local and state subdivision regulations."

economically viable development, which complies with the requisite Town regulations and harmonizes with the existing environment. Meaningful environmental review of this proposal can occur once the project design complies with minimum, basic Town regulations."

Toigo filed this action on October 11, 1995. After an initial demurrer by the Town, Toigo filed their "Second Amended Verified Petition for Writs of Mandamus or Prohibition and Complaint for Damages and Declaratory Relief." The amended complaint, which was filed on January 29, 1996, challenged the denial of Toigo's 1994 subdivision application on numerous grounds, including an estoppel theory. Toigo alleged they had reasonably relied, to their detriment, on assurances that the Town would approve a subdivision designed in accordance with certain design specifications recommended at the time their 1990 subdivision application was denied. Having redesigned their proposal in accordance with these recommendations, Toigo claimed the Town was estopped from promulgating findings claiming this design was inconsistent with local land use policies. Toigo also alleged that the Town's denial of their five-lot subdivision application deprived them of any viable economic value or use of their property, thus amounting to an unconstitutional taking. In Toigo's administrative mandamus claim, they alleged the Town prejudicially abused its discretion in denying Toigo's 1994 development proposal by failing to adopt adequate findings and by adopting findings that were not supported by substantial evidence.

After the Town successfully demurred to Toigo's estoppel claim, the Town filed a motion for summary adjudication of numerous remaining claims, including their cause of action alleging an unconstitutional taking. On March 18, 1997, after completion of briefing and a hearing, the trial court issued an order granting the Town's summary adjudication motion and denying Toigo's request for writ relief, which effectively disposed of Toigo's entire action. This appeal followed.

III. DISCUSSION

A. Trial Court's Denial of Administrative Mandamus

Toigo mounts a perfunctory challenge to the Town's decision to deny the 1994 five-unit development application as "an abuse of discretion, unsupported by appropriate findings, and unsupported by substantial evidence." Toigo raised this issue below in their petition for writ of administrative mandamus (§ 1094.5). The court denied the requested relief after concluding that Toigo "failed to establish an abuse of discretion because the Town's denial of their subdivision and other applications was supported by findings and, considering the entire record, the findings were supported by substantial evidence...."

Where, as here, a land use decision is challenged by administrative mandamus, courts are to apply the substantial evidence standard of review. (§ 1094.5, subd. (c); Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334, 25 Cal.Rptr.2d 842; Topanga Assn. for a Scenic Community v. County of Los Angeles (1989) 214 Cal.App.3d 1348, 1356, fn. 4, 263 Cal.Rptr. 214.) With respect to Toigo's conclusory challenge to the Town's exercise of discretion, Toigo's brief so flagrantly violates established rules of appellate procedure that this assignment of error is deemed waived. Toigo fails to set forth any...