Item 6 Staff Report Request for Amicus Participation in Loewenstien v. City of Lafayette, Court of Appeal, First Appellate District, Case Number 8093590, at No Cost to the Townfl
MEETING DATE: 11/05/01
ITEM NO. /
COUNCIL AGENDA REPORT
DATE: November 1, 2001
TO: MAYOR AND TOWN COUNCIL
FROM: ORRY P. KORB, TOWN ATTORNEY( -
SUBJECT: REQUEST FOR AMICUS PARTICIPATION IN LOEWENSTIEN v. CITY OF
LAFAYETTE, COURT OF APPEAL, FIRST APPELLATE DISTRICT, CASE
NUMBER 8093590, AT NO COST TO THE TOWN
RECOMMENDATION:
Authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of
Lowenstein v. City of Lafayette, Court of Appeal, First Appellate District, case number 8093590, at
no cost to the Town.
BACKGROUND:
The issue in this case is whether a two-year time period for a city to process and subsequently deny
a lot line adjustment application constituted a compensable taking of private property. The trial court
found the city's denial of the lot line adjustment lacked adequate support. The trial court also found
that the denial of the lot line adjustment denied the property owner substantially all economically
viable use of the property since the city needed to approve the lot line adjustment in order for the
property to be developed. The property owner, the court said, purchased the lot with distinct
investment -backed expectations and awarded the property owner $611,666.66 in damages.
This decision conflicts with the 1998 decision of the California Supreme Court in Landgate v.
California Costal Commission. In Landgate, the Court held that a property owner did not suffer a
compensable temporary taking during the time the California Coastal Commission erroneously, but
in good faith, asserted jurisdiction over a proposed lot line adjustment. While the trial court in this
case recognized that Landgate limited the takings claim, it nevertheless looked elsewhere for
authority to support a finding that the city had temporarily taken the plaintiffs property. It is this
type of overlapping and conflicting authority that has made it difficult to answer taking questions.
PREPARED BY: O' ' Y P_KORB, TOWN ATTORNEY
Reviewed by:1J'
Rev: 11/1/01 4:42 pm
Reformatted: 7/19/99
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MAYOR AND TOWN COUNCIL
SUBJECT: REQUEST FOR AMICUS PARTICIPATION IN LOEWENSTIEN v. CITY OF
LAFAYETTE, COURT OF APPEAL, FIRST APPELLATE DISTRICT, CASE
NUMBER 8093590, AT NO COST TO THE TOWN
October 25, 2001
The amicus will address three issues: (1) that the trial court should not have reached the takings
claim because the claimants failed to secure a final decision regarding a key land use issue; (2) that
Landgate imposes a blanket rule controlling every takings claim arising from regulatory delay; and,
(3) the temporary interference with the plaintiff's use of a portion of his property did not result in
a taking.
Every public entity that processes land use applications may be subject to a takings claim similar to
the subject case. For that reason, support for this amicus brief is recommended.
Attachments: Letter dated October 2, 2001 from Charles J. Williams, Esq.
Distribution: Charles J. Williams, Esq., Muir Parkway, 1330 Arnold Dr., #149, Martinez, CA
94553
Charles J. Williams
To:
From:
Date:
Re:
LAW OFFICES
of
CHARLES J. WILLIAMS
a Professional Corporation
Muir Parkway
1330 Arnold Drive, Suite 149
Martinez, CA 94553
MEMORANDUM
California City Attorneys
Charles J. Williams, City Attorney
E. Clement Shute, Special Counsel
October 2, 2001
Telephone: (925) 228-3840
Facsimile: (925) 228-1703
E-Mail: ChasLaw aU� AOL.com
Request to Cities to Join as Amicus Curiae in
Loewenstein v. City of Lafayette (No. 8093 590, 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 Lafayette. 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 of his property. The trial court awarded
damages in the amount of $611,666.66.
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. If upheld, the ruling would broaden the futility exception and encourage
property owners to bring takings challenges against preliminary land use decisions.
Second, the takings claim was based solely on the City's allegedly improper denial of a lot
line adjustment. The facts of the case are very similar to those of Landgate v. California Coastal
Commission (1998) 17 Ca1.4`h 1006, 73 Cal. Rptr.2d 841, in which the California Supreme Court
rejected a takings claim based on the Coastal Commission's legally 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 Landgate 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: (1) 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.
Town Council Minutes November 5, 2001
Redevelopment Agency Los Gatos, California
HEARINGS CONTINUED
HIGHLAND AVENUE 19/SINGLE FAMILY RESIDENTIAL CONTINUED
Motion by Mr. Pirzynski, seconded by Mr. Glickman, to uphold the decision of the Planning
Commission and deny the appeal. Carried unanimously.
Council Comments:
Planning Commission must have a full and complete design to review before approval.
Council sees very little change in the design before them.
There is a need to start over with the information that has been received concerning this site.
The site is incredibly unique and difficult to protect.
The house must sit on the lot without causing undue impact.
Everything that has been stated about this lot over the years should be included in a thoughtful design.
The current plans are far too large and create far too much impact on this pristine site.
There is no need to entertain a variance.
Look at the property to create a design. Do not plan your house and impose it on the site.
Begin the process over and create a plan that can flow with the environment.
MINUTES OF OCTOBER 15, 2001 (05B.V)
Ray Davis, resident, spoke to page 3, and insisted that his statement be reflected to the effect that Mr.
Blanton does not live in Los Gatos.
Motion by Mr. Blanton, seconded by Mr. Attaway, that Council/Agency approve the Joint Town
Council/Redevelopment Agency Minutes of October 15, 2001, as submitted. Carried unanimously.
For the record Mr. Blanton responded that he has lived in Los Gatos since 1966 and continues to do so.
AMICUS BRIEF/LOEWENSTIEN VS. CITY OF LAFAYETTE (06.28)
Ray Davis, resident, spoke regarding the City Attorney of Lafayette, Charles Williams. Mr. Davis
disagreed with Mr. Williams actions.
Motion by Mr. Blanton, seconded by Mr. Attaway, that Council authorize the Town Attorney to
include the Town of Los Gatos as an amicus curiae in the case of Loewenstien, vs. City of Lafayette,
Court of Appeal, First Appellate District, Case #8093590, at no cost to the Town. Carried unanimously.
CLERK ADMINISTRATOR/RESOLUTIONS 2001-122, 2001-123 & 2001-125 (07.29)
Ray Davis, resident, questioned this item and noted that he had spoken to the Manager about this
proposed classification.
Motion by Mr. Blanton, seconded by Mrs. Decker, that Council adopt Resolution 2001-125 entitled,
RESOLUTION OF THE TOWN OF LOS GATOS APPROVING EMPLOYMENT
AGREEMENT BETWEEN THE TOWN OF LOS GATOS AND CLERK ADMINISTRATOR
Carried unanimously.
Motion by Mr. Blanton, seconded by Mrs. Decker, that Council adopt Resolution 2001-123 entitled,
RESOLUTION OF THE TOWN OF LOS GATOS ESTABLISHING THE COMPENSATION
AND BENEFITS OF THE ELECTED TOWN CLERK. Carried unanimously.
TC:D13:MMI 10501
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