by William W. Abbott and Janell M. Bogue
In Dunn v. County of Santa Barbara (2006) 2006 Cal.App.Lexis 74, David Dunn submitted a subdivision application for his six acre parcel located in the unincorporated Summerland area of Santa Barbara County. His land had some unique characteristics: it was located on a sea cliff and was bisected diagonally by an earthquake fault. He wanted to divide it into two equal size parcels, as there were two possible building envelopes on the land and the area was zoned for a minimum sized lot of three acres. The property, because of its proximity to the coast, is under the jurisdiction of the California Coastal Commission and is subject to the County’s Local Coastal Plan (“LCP”).
In conjunction with his application, Dunn retained a biological expert whose report showed that there were two small artifical wetland areas on the property. The County’s own expert also found these wetlands and the County concluded that the wetlands were entitled to special protection as an environmentally sensitive habitat area (“ESHA”) under the LCP. A subsequent EIR for the project found that even with setbacks, disturbance from grading and building “would likely result in a loss of wetlands in [the] area.” The Planning Commission and the Board of Supervisors denied the application for subdivision. Dunn filed a petition for a writ of administrative mandate as well as a complaint for damages from a regulatory taking and civil rights violations. Later, he filed a motion for summary adjudication. The trial court found that Dunn did not meet his burden of proof on the summary adjudication motion. The trial court also found that the County’s findings and decision to deny Dunn’s subdivision application were supported with substantial evidence. Finally, the trial court found that the takings and civil rights violation claims were not yet ripe and thus could not be adjudicated. Dunn appealed.
The court of appeal first agreed with the decision below and held that Dunn did not meet his initial burden for a grant of summary adjudication. A motion for summary adjudication should be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Though Dunn filed a separate statement containing what he claimed were undisputed facts, the court of appeal agreed with the trial court’s characterization of the statement as “components of Dunn’s larger claim of entitlement to judgment on his petition for writ of mandate.” Since all the material facts were contained in the administrative record, the court of appeal held that the petition for administrative mandate was the “proper, and exclusive, procedural means for seeking a streamlined review of an agency’s decision.”
Next, the court of appeal held that the County’s decision to deny the subdivision application was based on substantial evidence in the record. Dunn asserted that the County misinterpreted the regulations in designating the areas wetlands, but the court pointed out that the record showed that every biological expert–even his own–agreed that the areas were wetlands. Dunn also claimed that there also had to be some other evidence that the wetlands on his property were valuable. The court looked to the record and held that biological surveys, which showed that the subject property contained valuable wetland indicator species and also that native wildlife species could use the area, contained sufficient evidence upon which the County could rest its decision. Dunn further asserted that only higher quality wetlands could be protected, but the court rejected that argument because the Coastal Act does not distinguish between wetlands according to their quality. Finally, Dunn challenged the County’s designation of his wetlands as ESHAs, but the court held that the aforementioned biological evidence was sufficient evidence to support the County’s decision to classify the wetlands and to apply the heightened protection called for in the LCP.
Lastly, the court rejected the trial court’s determination that Dunn’s constitutional claims were not ripe for adjudication. These kinds of claims are not ripe until “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Here, the County asserted the Dunn had to apply for a permit for the claim to become ripe. The court disagreed and said that the County repeatedly told Dunn that he could build a residence on the property. “Once…the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.” The court continued, “Because the County has made it clear that its wetland and ESHA regulations effectively limit the development of Dunn’s property to one residence, his takings claim is ripe for adjudication even though he has not sought permission to build that residence.”
As a general rule, it is very difficult, under California law, to establish the ripeness of takings claims. As discussed in the decision, a disgruntled property owner ordinarily must submit and have final action taken upon development applications. Ironically, clear land use rules may increase legal exposure, reminding us all of the time worn expression that no good deed goes unpunished.
William W. Abbott is a partner and Janell M. Bogue is a law clerk with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.