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HomeMy WebLinkAbout29-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: Authorization to join amicus curiae briefin support 0, [" ,- '-. "L of the City of Lafayette in the case ofLoewensteinv. City of I . I ,"" I . , i i Lafayette Dept: CITY ATTORNEY Date: October 17, 2001 Synopsis of Previous Council action: None. Recommended motion: That the Mayor and Common Council authorize the City Attorney to join in the amicus curiae brief in support of the City of Lafayette in the case of Loewenstein v. City of Lafayette. L1.f~ rJ Signature Contact person: Robert L. Simmons Phone: 5355 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: None Source: Finance: Council Notes: Agenda Item No, :L l:J- illS/OJ STAFF REPORT Council Meeting Date: November 5. 2001 TO: FROM: DATE: AGENDA ITEM: Mayor and Common Council James F. Penman, City Attorney October 17, 2001 Authorization to join amicllS brief in support of the City of Lafayette in the case of Loewenstein v. Qty of Lafayette The City of Lafayette denied the plaintiff a lot line adjustment when he tried to use it to circumvent the subdivision process, The trial court held that the denial of the lot line adjustment was a "taking" and awarded $611,666.66 in damages. The "taking" was regulatory since it deprived plaintiff of all economically visible use of his property. The matter is now on appeal. The appeal will focus on two issues: the failure of plaintiff to file a development application, and a diminution in value is not a taking. The issues presented are important to all cities because the trial court has significantly broadened their potential liability to property owners. The City Attorney recommends the City of San Bernardino join in the amicus curiae brief There is no charge to the City of San Bernardino in the joinder in this brief '{J -\ ~ ~ LAW OFFICES of CHARLES J. WILLIAMS c.J.. ,iI?' ll1lt.: a Professional Corporation Charles 1. Williams Muir Parkway 1330 Arnold Drive, Suite 149 Martinez, CA 94553 Telephone: (925) 228-3840 Facsimile: (925) 228--1703 E-Mail: ChasLaw@AOL.com MEMORANDUM To: California City Attorneys From: Charles J, Williams, City Attorney E. Clement Shute, Special Counsel Date: October 2, 200 I Re: Request to Cities to Join as Amicus Curiae in Loewenstein v. City of La fa vette (No. 8093590, Court of Appeal of the State of California, First Appellate District) On behalf of the City of Lafayette ("City"), we join with the League of California Cities in urging you to join in an amicus curiae brief which will be filed in the First District Court of Appeal in Lowenstein v. City of La fa vette. The amicus brief is being prepared by Andrew Schwartz, Deputy City Attorney of the City of San Francisco. There is no cost to your city to join in the amicus brief. The remainder of this memorandum sets forth the background of the case and why the issues raised are of major significance to cities. CASE SUMMARY The principal issue in this case is whether the City is liable to the property owner for a compensable taking of private property for the two year period during which the City's denial of his application for a lot line adjustment was in effect. The plaintiff property owner lives on a three (3) acre parcel that is part of subdivision limited to four building sites. A condition of the subdivision's approval prohibited further subdivision of the four lots without City approval. After building his home and living there for 10 years, the property owner paid $13,500 to acquire an abandoned water district tank site for the purpose of combining it with his existing three (3) acre residential parcel and then splitting the resulting parcel into two residential parcels. The tank site was a substandard, but legal non- conforming parcel. The property owner thus sought to use the lot line adjustment process, thereby avoiding the subdivision process, to create a fifth building site in the subdivision. After the City denied the property owner's application for a lot line adjustment, the property owner filed a legal action asserting two claims: a writ of mandate to compel the City to grant the lot line adjustment and an inverse condemnation claim for damages. The trial court granted the petition for writ of mandate and held, following the trial of the inverse condemnation claim, that the City's denial of the application for a lot line adjustment deprived the property owner of substantially all economically viable use ofms property. The trial court awarded damages in the amount of$61 1,666.66. The court denied the City's motion for a new trial. The City hereafter converted the alleged permanent taking to a temporary taking by rescinding its denial and approving the application for a lot line adjustment. WHY THIS CASE MERITS CITY ATTENTION This case presents issues of major significance to cities involving the law of inverse condemnation. First, a taking was found notwithstanding the property owner's failure to submit even one development application, contrary to established principles of ripeness. The court relied on the extremely narrow futility exception, even though there was no dispute that, without the lot line adjustment, the property was legally developable and could support a single family residence of substantial value. Ifupheld, the ruling would broaden the futility exception and encourage property owners to bring takings chaIlenges against preliminary land use decisions. Second, the takings claim was based solely on the City's allegedly improper denial ofa lot line adjustment. The facts of the case are very similar to those of Lan dilate v. California Coastal Commission (1998) 17 Cal.4tb 1006, 73 Cal. Rptr.2d 841, in which the California Supreme Court rejected a takings claim based on the Coastal Commission's legaIly erroneous but good faith assertion of jurisdiction over a lot line adjustment. The court in the present case properly held that there was no taking under Landllate since the City's denial of the lot line adjustment, though legally erroneous, was reasonable and in good faith. But while this should have ended the inquiry the court went on to undertake a second takings analysis under Penn Central and found that a taking had occurred. By ruling that a normal delay in development caused by preliminary litigation is a compensable takings, the decision could have a chilling effect at every step of the decision making process. Third, the court applied the Penn Central factors to find a taking even though the plaintiffs had suffered, at most, a restriction in their ability to expand the size of their existing, developable lot. The decision runs counter to a long line of precedent holding that a mere diminution in the value of property is not sufficient to effect a taking. THE AMICUS BRIEF Amicus City and County of San Francisco will address three issues in its brief on behalf of California cities. First, it will argue that the trial court should not have reached the takings claim because the claimants failed to secure a final decision regarding the permissible level of development on the tank site. The United States Supreme Court has consistently affirmed that the final decision ripeness doctrine is crucial to the preservation of government's flexibility to regulate land use in the public interest. Allowing landowners to bring takings claims straight to court, without obtaining a determination as to the level of development to the local agency will allow, undermines every city's administrative land use regulatory process. Second, San Francisco will argue that Landgate imposes a blanket rule controlling every takings claim arising from regulatory delay, Under Landgate, a regulatory delay claim is not compensable as a taking, even if the exercise of regulatory authority is later determined to be erroneous, if that authority is exercised under a good faith belief in its validity, Application of the Penn Central three-factor test to a regulatory delay case would eviscerate Landgate, exposing local government agencies to massive liability for takings. Third, even if the appellate court disagrees and affirms the trial courts' decision to apply Penn Central, San Francisco will argue that the City of Lafayette's temporary interference with the claimants' use of the tank site did not effect a taking. Penn Central requires an analysis of three factors: (I) the economic impact of the challenged regulation; (2) the claimants' reasonable, investment-backed expectations; and (3) the character of the government action. (Penn Central, 438 U.S. at p. 124.) San Francisco will demonstrate that a delay in development occasioned by a local agency's delay in approval of a lot line adjustment cannot constitute a taking under any of the Penn Central factors. The Appellate Advocacy Committee of the California League of Cities urges all California cities to join in this important amicus effort. Currently it is anticipated that the amicus brief will be filed concurrently with the City of Lafayette's opposition brief on or about December 20, 2001. If your city is willing to join as an amicus party, please obtain the necessary authority and return the enclosed consent form by facsimile or first class mail as soon as possible but no later than November 15, 2001. If you need further information, please do not hesitate to call either Charles J. Williams, Lafayette City Attorney ((925) 228-3840) or Osa Armi of the law firm of Shute, Mihaly & Weinberger ((415) 552-7272), We look forward to receiving your support.