San Dimas Growth Restriction Withstands Facial Challenge
A developer's allegation that a City of San Dimas general plan amendment was an unconstitutional taking has been rejected by the Second District Court of Appeal.
The owner of 200 acres in the foothills of the eastern San Gabriel Valley city contended that a general plan amendment aimed at protecting natural resources was unconstitutional on its face. The landowner — NJD Ltd. — argued that the general plan amendment denied "all economically viable use of the property" by reducing potential building densities.
The court, however, determined that some development was still allowed under the general plan amendment. The court suggested that what NJD was actually contesting was how the general plan amendment was applied to NJD's property.
"[W]hether there is no economically viable use of plaintiff's property absent a change in the allowable density is a question that exceeds the reach of a facial challenge to Amendment 99-1," Presiding Justice Paul Turner wrote for the court. "It presents a concrete controversy as to the application of the zoning restrictions to plaintiff's particular property. Plaintiff's argument with respect to the restrictions set forth in the general plan does not render its facial challenge viable."
In July 1997, the city imposed a moratorium on development in the northern foothills area — about 3,000 acres, one-third of which are privately owned and undeveloped. Two years later, the city adopted general plan amendment 99-1, which reduced permitted building densities and emphasized protection of natural resources. During the two-year interim period, NJD purchased 200 acres of undeveloped land in the foothills. Unhappy with the city's planning, NJD filed a lawsuit alleging violations of the California Environmental Quality Act (CEQA) and contending the amendment was an inverse condemnation of the property.
Different Los Angeles County Superior Court Judges ruled against the CEQA claim and the takings argument. The landowner appealed, and a unanimous three-judge panel of the Second District, Division Five, upheld the lower court.
The appellate court published only the portion of its opinion addressing the takings claims. In the decision, Justice Turner provided something of a primer on takings law. There are two types of challenges to a zoning statute — facial and "as applied." The facial challenge, courts have said repeatedly, is the tougher argument to win because the landowners must prove that the mere enactment of the regulation constitutes a taking, according to Tuner, who cited Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, (2002) 535 U.S. 302 (see CP&DR Legal Digest, May 2002) and Suitum v. Tahoe Regional Planning Agency, (1997) 520 U.S. 725 (see CP&DR Legal Digest, June 1997)
The California Supreme Court has distinguished the two types of takings this way: A facial challenge considers "only the text of the measure itself, not its application to the particular circumstances of an individual," Turner wrote, citing Tobe v. City of San Ana, (1995) 9 Ca.4th 1069. Meanwhile, an as-applied challenge considers the specific application of a facially valid ordinance to an individual or class of individuals.
At the trial court level, NJD contended the general plan amendment was facially invalid because it denied "all economically viable use of the property" — terminology derived from the U.S. Supreme Court's 1994 landmark Lucas case. But NJD also sought to introduce evidence as to the regulation's economic affect on its land. Los Angeles County Superior Court Judge Judith Ashmann-Gerst blocked introduction of that evidence.
The appellate panel upheld Ashmann-Gerst, ruling that the only thing at issue in NJD's lawsuit was the regulation itself. "Plaintiff is making a facial challenge to Amendment 99-1. As such, the legal issue plaintiff presents is what the United States Supreme Court characterized as ‘whether the "mere enactment"' of Amendment 99-1 constitutes a taking, i.e. denies the "‘owner economically viable use"' of the hillside property," Turner wrote.
Clearly, some economically viable uses were still permitted, the court noted, contrasting the regulation with the regulation struck down in Lucas that prohibited construction of any habitable structure. The San Dimas general plan amendment permitted single-family dwellings on every existing lot and on new parcels of 5 to 80 acres. The regulation also allowed equestrian uses, commercial communications facilities and public utility facilities. And the city included a variance procedure. Thus, the court held that the facial challenge failed.
In the unpublished portion of the ruling, the court upheld the environmental impact report for the general plan amendment and the related zoning change and specific plan.
NJD, Ltd., v. City of San Dimas, No. B160784, 2003 DJDAR 8574. Filed July 31, 2003.
For NJD: Karen J. Lee, Newmeyer & Dillion, (949) 854-7000.
For the city: Vickie Land, Brown, Winfield & Canzoneri, (213) 687-2100.