The California Supreme Court has ordered the publication of another round in the litigation involving a doughnut shop owner and the City of Hawaiian Gardens.
In an opinion issued in June 2002 — but not ordered published until late May of this year — the Second District Court of Appeal overturned a lower court, which dismissed the doughnut shop owner's inverse condemnation lawsuit. The appellate panel ruled that the shop owner should have had the opportunity to amend his lawsuit to prove his case. The court, however, did now determine whether or not the shop owner deserved compensation for inverse condemnation.
Last year, the state Supreme Court ordered publication of the Second District opinion in a related case, Kong v. City of Hawaiian Gardens Redevelopment Agency, 101 Cal.App.4th 1317, (see CP&DR Legal Digest, October 2002). In that case, the appellate court ruled that the doughnut shop owner, Veisna Kong, was eligible for relocation benefits as a "displaced person" even though he remained in business for six years on property the city acquired under threat of eminent domain.
In this separate lawsuit alleging inverse condemnation, Kong sought damages for losing business goodwill, improvements to his shop and inventory. He also sought precondemnation damages, alleging the city behaved inappropriately before acquiring the property. The city acquired the property where Kong was the sublessee in 1993 and sold it the following year to Dr. Irving Moskowitz, who eventually developed a casino. Kong continued to operate his doughnut shop in the same location until late 1999, when Moskowitz evicted him so he could demolish the building and construct a parking lot for the casino.
Los Angeles County Superior Court Judge Bruce Mitchell sustained the city's demurrer, indicating that he agreed with the city that Kong had not made enough of a case for the litigation to continue. Judge Mitchell refused to let Kong amend his complaint and the judge dismissed the lawsuit.
Kong appealed and the appellate panel overturned Mitchell. Kong "has demonstrated that there is a reasonable possibility that he can cure the defects" in his lawsuit, the court ruled. "Consequently, he must be afforded leave to amend his complaint."
The city argued that there was no connection between its purchase of the property and Kong's displacement from his place of business. Kong continued to do business at the location for six years after the city acquired the property, which was longer than his original sublease, the city noted.
But, as in its ruling regarding displacement benefits, the court held that it was the agency's initial acquisition of the premises that resulted in Kong getting evicted.
The Case:
Kong v. City of Hawaiian Gardens Redevelopment Agency, No. B146142, 2003 DJDAR 5487. Filed June 13, 2002. Ordered published, May 21, 2003.
The Lawyers:
For Kong: Anthony Parrille, (626) 294-0010.
For the city: M. Lois Bobak, Woodruff, Spradlin & Smart, (714) 558-7000.
An administrative hearing that the City of Beverly Hills conducted for an adult business permit renewal violated the business's right to due process, the Second District Court of Appeal has ruled.
The problem was that a city attorney — who earlier had contended that the business failed to submit a complete permit renewal application — also advised the hearing officer who considered the business's appeal of the decision to deny the renewal application.
A Southern California housing developer that has aggressively fought a wide variety of government fees in recent years has lost a building permit and plan review fee case at the Fourth District Court of Appeal.
In a terse opinion, the unanimous three-judge appellate panel ruled that Barratt American's claims were either time-barred or attempted to rely on the wrong statutes.
The Sonoma County Water Agency's environmental impact report for a project to increase the agency's withdrawals from the Russian River has been thrown out by the First District Court of Appeal. The EIR's analysis of cumulative impacts and project alternatives, and the document's description of the environmental setting were all inadequate, the court ruled.
The City of Buena Park has successfully defended a lawsuit against city ordinances that prohibit long-term occupancy of motel rooms. The Fourth District Court of Appeal ruled that the ordinances were not unconstitutional takings and did not deprive the motel owners of equal protection.
The California Coastal Commission lost its jurisdiction over development of a proposed elementary school in Encinitas because the Commission did not determine within 49 days whether a "substantial issue" existed, the Fourth District Court of Appeal has ruled. The ruling appears to knock down a practice in which the Commission within 49 days of receiving an appeal sets a later hearing date without addressing any of the issues.
Claims that Sacramento County violated the California Environmental Quality Act while approving a commercial development have been dismissed by the Third District Court of Appeal because the project opponent did not submit a written request for a hearing within 90 days of filing a lawsuit.
The attorney for opponent Forster-Gill, Inc., argued that a telephone call to the court clerk within the 90-day period was adequate, but the appellate court disagreed, ruling that the law "plainly contemplates a written request that can be, and is, filed with the court."
A state appellate court has upheld the California Coastal Commission's denial of a development permit for a small mixed-use project in Morro Bay.
The court rejected developer Dan Reddell's arguments that the commission violated his due process and equal protection rights, and that its decision was a regulatory taking of property. Instead, the Second District Court of Appeal ruled that substantial evidence supported the commission's finding that Reddell's project was inconsistent with Morro Bay's local coastal plan (LCP).
A state appellate court has thrown out an Inyo County general plan amendment that the county argued was nothing more than a clarification of a longstanding policy.
A unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, concluded that the amendment was more than a mere clarification and that the county should have completed an environmental impact report before approving the amendment.
A City of West Hollywood moratorium on new multi-family housing development has been declared invalid by the Second District Court of Appeal. The court ruled that the city had not made required findings for the moratorium.
The Ninth U.S. Circuit Court of Appeals has set back a plan to develop the country's largest solid waste landfill near Joshua Tree National Park. The court ruled that the environmental analysis for the project was inadequate and that the Bureau of Land Management undervalued land it would provide to the landfill developer.
A state appellate court has struck down a California Environmental Quality Act exemption for an air district rule permitting new power plants to offset emissions by paving roads. The court found that the Mojave Desert Air Quality Management District did not have adequate evidence to support its finding that the rule could not have a negative impact on the environment.
A developer is not entitled to reimbursement or damages from a consultant hired by a local government to complete an environmental impact report, the First District Court of Appeal has ruled. Even when the consultant fails to complete an EIR in a timely manner, the consultant owes no contractual duty to the developer that paid for the consultant, the court concluded.
