Twain Harte Associates, Ltd. v. County of Tuolumne

• Decision Date: 11 January 1990
• Docket Number: No. F011310,F011310
• Citation: 265 Cal.Rptr. 737,217 Cal.App.3d 71
• Court: California Court of Appeals Court of Appeals
• Parties: TWAIN HARTE ASSOCIATES, LIMITED et al., Plaintiffs and Appellants, v. COUNTY OF TUOLUMNE et al., Defendants and Respondents.

Page 737

265 Cal.Rptr. 737

217 Cal.App.3d 71

TWAIN HARTE ASSOCIATES, LIMITED et al., Plaintiffs and Appellants, v. COUNTY OF TUOLUMNE et al., Defendants and Respondents.

No. F011310.

Court of Appeal, Fifth District, California.

Jan. 11, 1990.

Review Denied April 4, 1990.

[217 Cal.App.3d 76] Timothy F. O'Leary, Wilson, Sher, Marshall & Peterson, Oakland, for plaintiffs and appellants.

Stephen Dietrich, Jr., County Counsel, Leo J. Faulstich, Deputy County Counsel, Tuolumne County, Sonora, for defendants and respondents.

OPINION

DIBIASO, Associate Justice.

Appellants ¹ sued for inverse condemnation and declaratory relief, alleging that the adoption of a Tuolumne County (the County) ordinance rezoning a portion of a parcel of real property they owned constituted a "taking" for which just compensation must be paid. The trial court granted summary judgment in favor of the County, on the ground no taking had occurred and owners had failed to exhaust available "administrative remedies." The moving papers, however, disclose the existence of a triable issue of material fact on whether any attempt by owners to secure administrative relief from the ordinance would have been "futile." Thus, we reverse and remand.

The owners' complaint, filed October 23, 1987, contained two causes of action. The first count sought to plead a right to recover in inverse condemnation under the "Laws of California and ARTICLE I, SECTION 19 OF THE CONSTITUTION OF THE STATE OF CALIFORNIA²" on the ground a June 1987 "downzoning" deprived the [owners] of "all reasonable use of the property" and "prevented [owners] from receiving a fair return on [their] legitimate investment-backed expectations."

The second count, for declaratory relief, incorporated all the allegations of the first and prayed for a declaration that the downzoning ordinance was "invalid."

The County's answer denied all but a few of the averments of the complaint and set out a number of affirmative defenses.

On June 30, 1988, the County filed and served a notice of motion for summary judgment (CODE CIV.PROC., § 437C)³, with accompanying documents. The County's papers took the position no triable issue of material fact existed and the action had no merit because: (1) "no claim lies in inverse condemnation under the California Constitution for a rezoning;" (2) "the parcel, taken as a whole, has substantial economic use remaining;" and (3) "[the owner has] failed to exhaust [its] administrative remedies."

Owners contested the motion. After hearing, the trial court issued its written ruling granting the motion. The decision read in its entirety: "Motion for summary judgment is granted, the Court finds there was no taking and no exhaustion of administrative remedies." Judgment was subsequently entered and appellants' timely appeal followed.

FACTS ⁴

The 8.5-acre parcel of real property which is the object of this action is located in the Twain Harte unincorporated area of Tuolumne County. The parcel was originally created as part of the Black Oak Estates Unit 2 residential subdivision in April 1981. It was then owned by third persons not parties to the action below or to this appeal. In July 1981, the County issued to those third persons a development permit for the construction on the site of a shopping center with over 100,000 square feet of retail stores and offices. At the time the entire parcel was zoned C-1:0-Tx ("light commercial," with a building design permit requirement). The shopping center buildings were thereafter constructed along the south side of the property paralleling Twain Harte Drive and a parking lot was installed on the north side of the parcel. A 1.7-acre plot at the northern edge of the 8.5-acre parcel remained undeveloped after completion of the shopping center complex. The original construction permit did not include the plot in the shopping center development.

The residential lots of the Black Oak Estates Unit 2 subdivision were north of the 8.5-acre parcel and were separated from it by a county road. The 1.7-acre plot of undeveloped land, along with 15-to-20-foot-wide landscaped strips elsewhere around the shopping center complex, served as a buffer between the complex and the residential lots.

After the shopping center was built, the entire 8.5-acre parcel was acquired by owners.

In June 1984, the County approved an amendment to the development permit which authorized the addition of 5,500 square feet to the center. In July 1984, it approved another amendment to the development permit which allowed the addition of 1,000 more square feet to the center. Neither amendment, nor any related proposal submitted to the County by the owners, contemplated development of any portion of the 1.7-acre plot. After the two additions were completed, the shopping center complex and parking lot occupied about 6.8 acres, substantially all of the original 8.5-acre parcel with the exception of the 1.7-acre undeveloped plot.

In March 1987 the owners applied to the County for approval of a parcel map which would split the entire 8.5-acre parcel into three separate parcels. The 6.8-acre shopping center and parking lot would be one parcel; the remaining 1.7-acre undeveloped plot would be divided into two new parcels of approximately 1 acre and .7 acres, respectively.

At the time the owners submitted their application for approval of the parcel map, the 1.7-acre plot carried the same "light commercial" zoning it had borne since creation of the entire 8.5 acre parcel in 1981. The proposed parcel map did not disclose any desire on the part of the owners to develop, in whole or in part, either of the two new parcels.

On May 4, 1987, the Department of Transportation and Engineering Services denied the owners' application for approval of the parcel map. The owners did not appeal the determination to the Board of Supervisors.

On June 30, 1987, at the request of the Planning Director, the Board of Supervisors, after hearings before it and the Planning Commission, adopted Ordinance No. 1558, which rezoned the 1.7-acre undeveloped plot from its existing C-1:O-Tx designation to an "O," or "open space" designation. The stated purpose of the rezoning was to "insure land use compatabilitybetween two conflicting land uses, residential and commercial."

The uses permitted under "open space" zoning are severely restricted. Generally, no uses are unconditionally allowed. Only recreational, farming, public utility, and, in some instances, "roads, driveways, and bridges" are sanctioned if a "conditional use" permit is first secured. There is no provision in the applicable ordinance for commercial or related uses under any circumstances.

The owners filed suit upon the Board's adoption of Ordinance No. 1558.

The Planning Director advised owners further development of the shopping center parcel might be possible if an appropriate application were made. The Planning Director also advised owners development might be allowed on the 1.7-acre undeveloped plot if appropriate mitigation measures were incorporated within any proposed project.

Owners have not applied for a variance under any relevant ordinance or statute with respect to the 1.7-acre undeveloped plot. Since 1984, owners have not sought the County's approval for any specific project on the 8.5-acre parcel.

DISCUSSION

I.

A. Burden of Proof

The burden of proof imposed upon a party who seeks summary judgment under section 437c is substantial. Where, as here, a defendant is the moving party, its evidence submitted in support of the motion must either disprove at least one essential element of every cause of action of the plaintiff's complaint or prove an affirmative defense that would bar every cause of action of the complaint. (Frazier et al. v. Boccardo et al. (1977) 70 Cal.App.3d 331, 338, 138 Cal.Rptr. 670; Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (Rutter 1989) § 10:125 rev. # 1, 1989.)

Accordingly, if a properly noticed motion for summary adjudication (§ 437c, subd. (f)) is not also before the court ⁵ and the defendant's proof leaves at least one plausible theory or basis of recovery unchallenged, the burden is not met and plaintiff's failure to oppose the motion is immaterial. (Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 639, 177 Cal.Rptr. 445; Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 229 Cal.Rptr. 209; Weil & Brown, supra, § 10:126 rev. # 1, 1989.) That the plaintiff will have the affirmative burden of proof at trial is of no consequence. (Security Pacific National Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 179, 165 Cal.Rptr. 38; Weil & Brown, supra, § 10:133 rev. # 1, 1989.)

B. Standard of Review

Appellate review is limited to the facts contained in the documents presented to the trial judge. We exercise our independent judgment as to the legal effect of the undisputed facts disclosed by the parties' respective papers on the motion and outlined earlier in this opinion. (Bonus-Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357).

II.

With the foregoing factual and legal prologue in mind, we now turn to the substantive aspects of this appeal.

Article I, section 19, of the California Constitution guarantees private property shall not be taken for public use without the payment of just compensation to the owner. Governmental land use regulations may in some instances effect a "taking." (Penna. Coal Co. v. Mahon (1922) 260 U.S 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322; First Lutheran Church v. Los Angeles County (1988) 482 U.S. 304, 316, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250.) However, not every sovereign act with respect to property requires compensation. "Government hardly could go on if to some extent valuesincident to property could not be diminished without paying for every such change in the general law." (Penna. Coal Co. v. Mahon, supra, 260 U.S. at p. 413, 43 S.Ct. at p. 159.) Thus, the United States Supreme Court has...