Zilber v. Town of Moraga, C-87-1613 EFL.

• Decision Date: 22 August 1988
• Docket Number: No. C-87-1613 EFL.,C-87-1613 EFL.
• Citation: 692 F. Supp. 1195
• Parties: Norman A. ZILBER, Plaintiff, v. TOWN OF MORAGA, Defendant.
• Court: U.S. District Court — Northern District of California

692 F. Supp. 1195

Norman A. ZILBER, Plaintiff, v. TOWN OF MORAGA, Defendant.

No. C-87-1613 EFL.

United States District Court, N.D. California.

August 22, 1988.

Robert L. Dunn, Bancroft, Avery & McAlister, San Francisco, Cal., for plaintiff.

Charles J. Williams, Williams & Robbins, Martinez, Cal., for defendant.

MEMORANDUM DECISION

LYNCH, District Judge.

This action arises from defendant Town of Moraga's one-and-a-half-year moratorium on certain development applications and the passage of the Moraga Open Space Ordinance ("MOSO"). Plaintiff Zilber contends that the Town's actions violate the taking clause of the fifth amendment as well as substantive due process principles. The case is presently before the Court on the Town's motion for summary judgment. For the reasons explained below, the motion is granted.

BACKGROUND

As trustee for several entities, Zilber owns a number of undeveloped parcels of property in the Town. In either 1981 or 1982, Zilber hired a developer to prepare and submit a development plan for the property. The developer submitted the plan but withdrew it prior to receiving a decision.

In late 1983, Zilber entered an agreement with a new developer, in which the developer obtained an option to purchase the property for $1.7 million. The developer filed two alternative applications for "conceptual development plan approval."¹ On October 15, 1985, the Town Council enacted a moratorium on processing and approving subdivision applications pending completion of study of the general plan regarding ridge and hillside open space. The moratorium remained in effect until April 1, 1987.

The moratorium put a halt to consideration of the developer's application. Accordingly, the developer ceased pursuing its development plans and awaited the outcome of the April 1986 election. In that election, MOSO, an initiative measure, was enacted. Subsequently, the developer neither pursued its development plans nor exercised its purchase option, and the Town never issued a decision on the development application.

MOSO seeks to "protect the remaining open space resources within the Town." Its purpose is to further a variety of interests, including "ensuring that development does not occur in sensitive viewshed areas and protecting the health and safety of the residents of the Town by restricting development on steep or unstable slopes...." MOSO restricts development of open space primarily by prohibiting development on slopes of greater than 20% and on crests of minor ridgelines, and by limiting maximum density of development in open space and "high risk" areas.

After MOSO's enactment, the Town Council adopted guidelines for interpreting and implementing MOSO. Among other things, the guidelines establish a method for slope calculation and set standards for determining whether a region is a "high risk" area. In addition, the guidelines provide a vested rights exemption and a procedure called a "status determination." A "status determination" allows a property owner to obtain from the Town an assessment of whether his or her property is subject to MOSO, and if so, the Town will provide determinations on high risk areas, slope calculation, maximum permitted density, and permissible density transfers. Zilber has never sought a status determination.

The parties agree that at least some of Zilber's property is subject to MOSO. However, they dispute the extent to which MOSO restricts development. The Town concedes that the property includes land where development is prohibited, but contends that permissible density where development is not prohibited has yet to be determined. Zilber, on the other hand, asserts that the Town's estimate of undevelopable areas is understated and, in any event, that MOSO's practical effect is to render any meaningful development impossible.

DISCUSSION

In his complaint, Zilber advances four claims: (1) MOSO "as applied" to Zilber's property works a "permanent taking" without compensation in violation of the fifth amendment; (2) MOSO on its face works a "permanent taking" without compensation; (3) the development moratorium and MOSO work a "temporary taking" without compensation; and (4) MOSO and the moratorium entitle Zilber to a remedy under California's inverse condemnation law. In his motion papers, Zilber asserts that his takings allegations also state a claim for violation of substantive due process. The Court will treat the claims in the order listed.

I. The "As-Applied" Claim

In order to recover on a taking claim based on government land use regulation, a plaintiff must establish two elements. First, the claimant must show "that the regulation has in substance `taken' his property." MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986). Second, he "must demonstrate that any proffered compensation is not `just.'" Id.

From these substantive elements, the Supreme Court and the Ninth Circuit have developed two "ripeness" principles permitting review on the merits only after certain threshold requirements are met. The first principle, drawn from the initial substantive requirement, provides that "an essential prerequisite to assertion of the claim is a final and authoritative determination of the type and intensity of development legally permitted on the subject property." Id.; see also Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172, 191, 105 S.Ct. 3108, 3119, 87 L.Ed.2d 126 (1984) (claim may not be evaluated "until the administrative agency has arrived at a final definitive position regarding how it will apply the regulations at issue to the particular land in question"); Agins v. Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) ("because the appellants have not submitted a plan for development of their property as the ordinances permit, there is as yet no concrete controversy regarding the application of the specific zoning provisions"); Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d 375 (9th Cir.1988); Herrington v. County of Sonoma, 834 F.2d 1488 (9th Cir.1987); Lake Nacimiento Ranch Co. v. San Luis Obispo County, 830 F.2d 977 (9th Cir. 1987), amended, 841 F.2d 872 (1988); Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir.), amended, 830 F.2d 968 (1987). The second ripeness principle holds that "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Williamson, 473 U.S. at 195, 105 S.Ct. at 3121.²

Under the "final decision" rule, a property owner's as applied taking claim is not ripe until the government has rejected at least one meaningful development application and denied at least one request for a variance. See Williamson, 473 U.S. at 193-94, 105 S.Ct. at 3120; Shelter Creek, 838 F.2d at 377; Kinzli, 818 F.2d at 1454. In some cases, a claim may not be ripe until several plans have been submitted and rejected. See, e.g., MacDonald, 106 S.Ct. 2567-68.

The Ninth Circuit, however, recognizes a "futility exception" to the final decision requirement: "the requirement of the submission of a development plan is excused if such an application would be an `idle and futile act.'" Kinzli, 818 F.2d at 1454. But the development of the futility exception has been uneven. At least initially, the Ninth Circuit applied no bright line rule in determining whether the futility exception was available in any given case. For example, in American Savings & Loan Ass'n v. County of Marin, 653 F.2d 364, 371 (9th Cir.1981), the court indicated that the matter is one of degree, finding the exception applicable when a sufficient number of development applications have been rejected. Similarly, in Norco Const., Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir.1986), the court stated that compliance with local ordinances is futile when it is "clear beyond peradventure that excessive delay in such a final determination has caused the present destruction of the property's beneficial use." See also Martino v. Santa Clara Valley Water Dist., 703 F.2d 1141, 1146 n. 2 (9th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983) (futility exception recognized but not defined).

In Kinzli, however, the Ninth Circuit apparently abandoned this case-by-case approach for a bright line rule. There, the district court ruling was consistent with previous decisions in that it treated the matter as a fact-bound issue not susceptible to resolution by a single inflexible rule:

Whether the controversy is ripe under Agins or whether plaintiffs should be excused on futility grounds can only be decided in the larger context of what uses remain. If there appear to be viable permissible uses under the Ordinance, plaintiffs must submit a development plan or application. If, however, the Ordinance deprives plaintiffs of any beneficial use, they should not be compelled to pursue futile procedures.

Kinzli v. City of Santa Cruz, 620 F.Supp. 609 (N.D.Cal.1985). The Court of Appeals rejected this approach:

We reject the district court's view that futility may be determined, absent any rejected development plan, by inquiring whether any beneficial use remains, or whether the regulatory regime inhibits the property's marketability. Adoption of such standards would require courts to speculate as to what potential uses may be lurking in the hopes of the property owner and in the minds of developers and city planners. This would result in the same sort of speculation that the ripeness doctrine prohibits.

Kinzli, 818 F.2d at 1454.

The Kinzli court then proceeded to interpret the Supreme Court cases to require that "at least one application must be submitted before the futility exception applies." Id. (emphasis in original). Moreover, the application must be "meaningful." Id. at 1455.

The Kinzli court also indicated that the futility exception will not apply until a...