Do You Seek Compensation For An Unconstitutional Taking? Then Plead That With The Mandamus Action To Avoid The Potential Statute Of Limitations Bar!
By Glen C. Hansen
In Honchariw v. County of Stanislaus (2015) 237 Cal.App.4th 388, the Court of Appeal for the Fifth Appellate District held that a landowner's inverse condemnation claim for damages against the County of Stanislaus caused by an unconstitutional temporary taking was time-barred under Government Code section 66499.37. The owner previously had filed a successful petition for writ of mandate challenging the disapproval of a subdivision application, which resulted in the County’s reconsideration of the application and eventual approval of the project. However, the owner’s subsequent claim for compensation damages was time-barred under section 66499.37 because the mandamus proceeding had not established that there had been a compensable taking.
Nicholas Honchariw submitted a vesting tentative map application to the County’s Planning Commission to subdivide his land, along with a request for an exception to the County's rule requiring that all subdivision lots be connected to a public water system whenever such a system is available. The Planning Commission voted to deny both the application and the request for an exception. The County’s Board of Supervisors (“Board”) denied Honchariw’s administrative appeal of the Planning Commission’s decisions, without making any findings specified in subdivision (j) of section 65589.5 of the Government Code. In June 2009, Honchariw filed a petition for administrative mandamus, challenging the Board's denial of his application. In November 2011, the Court of Appeal ordered the trial court to issue a writ of mandate directing the Board of supervisors to vacate its denial of Honchariw's subdivision project application, reconsider the application, and make certain determinations and findings in the event that it again denied the application. In January 2012, the superior court issued the writ of mandate and directed the Board to file a return to the writ within 90 days. The Board's initial return was filed in April 2012 and stated that the hearing on its reconsideration of Honchariw's vesting tentative map application would be held in May 2012. On May 22, 2012, the Board approved the project.
In December 2012, Honchariw filed a complaint against the County and the Board that alleged they were liable for inverse condemnation and for violating his right to substantive due process. Honchariw alleged the Board's May 2012 approval of his application ended the temporary taking of his property without just compensation. He sought damages of $2.5 million for the alleged taking. The trial court sustained the Defendants’ demurrer without leave to amend and dismissed the action on the grounds that the causes of action for inverse condemnation damages were time-barred by the 90-day statute of limitations contained in section 66499.37 (which governs actions to attack or review decisions involving a controversy arising out of the Subdivision Map Act). Honchariw appealed the judgment of dismissal. The Court of Appeal affirmed.
The Court of Appeal held that the 90-day statute of limitations in section 66499.37 applied to the inverse condemnation action based on Hensler v. City of Glendale (1994) 8 Cal.4th 1. Under Hensler, a landowner may elect to pursue a damage claim for an unconstitutional taking after a mandamus proceeding results in a final judgment, if the initial mandamus action results in a final judgment establishing that there has been a compensable taking of the plaintiff's land. Thus, the initial mandamus petition must include the unconstitutional taking cause of action even though it was not required to seek compensation for the alleged taking. The Court explained: “[T]he two-step procedure approved in Hensler allows a plaintiff to postpone bringing a claim for damages caused by an unconstitutional taking until a mandamus proceeding has been completed, provided that the mandamus judgment or order establishes an unconstitutional taking or due process violation.” The Court repeated:
Hensler requires, at a minimum, the mandamus action to challenge the validity of the regulation or administrative decision on the ground it effected an unconstitutional taking. Such a challenge to the validity would be ripe when the mandamus petition is filed and, therefore, section 66499.37 requires that challenge to be brought within 90 days even though the exact parameters of any compensation for the taking cannot be determined until after the local agency has made a final decision about which option it will adopt in response to any judgment obtained in the mandamus proceeding.
In this case, Honchariw failed to meet those requirements. While his mandamus action fell within the statutory text of section 66499.37, Honchariw did not allege that a compensable taking was established in the mandamus proceeding. He failed to allege (and could not allege) the existence of a final judgment establishing that there had been a compensable taking of his land. Thus, his inverse compensation action was untimely under section 66499.37.
While the inverse condemnation claim should be pled with the writ of mandamus claim, the usual course of action is to bifurcate the different claims for purposes of trial. Code of Civil Procedure section 1048, subdivision (b), provides the trial court with the discretion to order separate trials of any cause of action “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” In most cases that include such combined claims, bifurcation is reasonable under section 1048 because a property owner seeking to recover on an inverse condemnation claim against an agency must first establish the invalidity of the condition the agency seeks to impose(see Serra Canyon Co. v. California Coastal Commission (2004) 120 Cal. App. 4th 663, 669; Rossco Holdings, Inc. v. State of California (1989) 212 Cal.App.3d 592, 657); and because, unlike the inverse condemnation claim, a writ of mandamus claim will be generally be determined on the administrative record alone without extrinsic factual evidence obtained through testimony and/or discovery. (See Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 576-578; Cal. Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 255-256; Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1269-1271; Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App. 4th 93, 102; Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1390-1391.) Thus, best practices are to first plead the claims together for statute of limitations purposes, but then birfurcate the claims and stay the inverse condemnation claim until after the writ of mandamus claim has been adjudicated.
Glen Hansen is a Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.