The Court of Appeal for the Second Appellate District held that property owners whose request to grade almost 80,000 cubic yards on their property was denied by a city, but who submitted no other alternative grading proposal in connection with their plans to build a house and other structures on their property, did not have inverse condemnation or civil rights claims that were “ripe” for adjudication. The court’s independent review of the city’s findings demonstrated that the city “has neither rendered a final decision nor precluded all development of the property,” contrary to the allegations in the owners’ complaint.
In York, property owners sought to grade 79,700 cubic yards on a 40-acre parcel “on a prominent ridge” in the Hollywood Hills “under the iconic Hollywood Sign which is prominent to the east of the site.” The property is prominently visible from the “flats of Hollywood”, the Hollywood Freeway, the Central Los Angeles Basin and the walking trail around Lake Hollywood. The requested grading, which was intended to allow the construction of a 8,000 square foot house, a 1,300 square foot guest house, a driveway, swimming pool, tennis court, storage sheds, retaining walls and “wine caves,” was more than 24 times the amount that is permitted as of right. In fact, a significant portion of the grading was for a private tennis court to be built into the hillside and for a ridgeline access road up to that tennis court. The Zoning Administrator for the City of Los Angeles granted most of the building permits for the structures but denied the grading request. The Administrator permitted the maximum of 3,300 cubic yards of grading permitted as of right by the Municipal Code. The Administrator did not approve grading in between the 3,300 and 79,700 amounts because he said that “all I had before me was 79,000 cubic yards. I did not have any alternatives to this particular project. So, it was either ‘yea’ or ‘nea’ on that particular issue.” The owners appealed the Administrator’s decision to the Area Planning Commission. While the owners made some changes to their proposal, such as eliminating the proposed tennis court, they did not reduce their grading request. The Commission denied the administrative appeal.
The owners then filed an action that not only included a petition for a writ of mandamus, but also included a civil rights claim (due process and equal protection) and a cause of action for inverse condemnation. The civil rights claim alleged that the City had arbitrarily and unlawfully imposed restrictions on the use of the property and treated the owners differently than other similarly situated homeowners. The takings claim alleged that the City had taken the property by depriving them of substantially all economically viable or beneficial uses of the Property. After the trial court denied the mandate petition, the City moved for judgment on the pleadings as to the takings and civil rights claims on the grounds of ripeness. The trial court entered judgment on that basis, and the Court of Appeal affirmed.
The appellate court affirmed the denial of the petition for writ of mandate because the owners failed to present any evidence (as opposed to mere argument by their attorneys) that the owners could not build a house on the property other than with the 79,000 cubic yards of cut or fill. “[A]s the applicants for the land use adjustment, plaintiffs bore the burden of demonstrating their entitlement to the adjustment.”
The appellate court further agreed with the ripeness decision by the trial court. The Court of Appeal noted that a motion for judgment on the pleadings “is equivalent to a demurrer.” And the California Supreme Court has held that a demurrer “may be sustained when the complaint shows on its face the claim is not ripe for adjudication.” (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal. 3d 110, 118.) Here, the findings by the Administrator contradicted the allegations on the face of the complaint that the City’s decision was final.
The Court of Appeal concluded that the City “has neither rendered a final decision nor precluded all development of the property.” While the City denied the request for 79,700 cubic yards of cut and fill grading, “it neither definitively limited plaintiffs to 3,300 cubic yards of fill nor precluded plaintiffs from submitting another, more modest, development proposal.” Even though the procedural context was a motion for judgment on the pleadings, the Court of Appeal independently reviewed the Administrator’s findings that “reveal[ed] that the City has not made a final determination denying plaintiffs the right to build a house on their property.” The Court rejected contrary allegations in the complaint regarding the finality of the City’s decision. Thus, the City’s determination “cannot properly be characterized as ‘a final decision regarding the application of the zoning ordinance … to [the owners’] property,’ and it therefore cannot for the basis for a regulatory takings claim.” The lack of a final agency decision similarly supported the court’s affirmance of the trial court’s granting the motion for judgment on the pleadings as to the owners’ civil rights claims for alleged violation of due process and equal protection.
The York decision was based on state law. However, that same ripeness rule applies to constitutional claims alleged in federal court. (See National Park Hospitality Assn. v. Department of Interior, 538 U.S. 803, 807-08, (2003); Palazzolo v. Rhode Island, 533 U.S. 606, 620-621 (2001); Mehaffy v. United States, 98 Fed. Cl. 604, 612-613 (2011). See e.g., Bee’s Auto, Inc. v. City of Clermont, 927 F.Supp.2d 1318 (M.D.Fla.2013).) The U.S. Supreme Court’s recent decision in Knick v. Township of Scott, Pennsylvania, ___ U.S. ___, 139 S.Ct. 2162, 204 L.Ed.2d 558 (2019), did not change that ripeness rule. As Chief Justice Roberts stated in Knick:
In Williamson County [Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985)], a property developer brought a takings claim under §1983 against a zoning board that had rejected the developer’s proposal for a new subdivision. Williamson County held that the developer’s Fifth Amendment claim was not “ripe” for two reasons. First, the developer still had an opportunity to seek a variance from the appeals board, so any taking was therefore not yet final. 473 U. S., at 186-194. Knick does not question the validity of this finality requirement, which is not at issue here. [___ U.S. at ___; 139 S.Ct. at 2169.]
In short, property owners generally need to pursue several development proposals before they can assert constitutional claims in court against local agency decisions involving their property.
Glen Hansen is Senior Counsel at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.