Approval Process: Landowner Loses Subdivision for a Second Time
Completing the subdivision application process twice, and having the project rejected both times, does not qualify as an exhaustion of the administrative process, The First District Court of Appeal as ruled.
In a case from the Town of Ross, a unanimous three-judge panel said a landowner's taking claim was not ripe because the landowner had not used up all administrative remedies. The court also said the "futility exception" was not available because the landowner had filed only two applications, both for five-lot subdivisions.
"The problem in this case lies, as previously stated, in the fact that (the landowner) has not explored either a reduction in size, scope or intensity of the proposed development," Justice Ignazio J. Ruvolo wrote. The landowner's contention that the town would reject any development application "derives from nothing more than ‘speculation, conjecture, imagination or guess work' and is insufficient to raise a triable issue of fact (O'Neil v. Drake (1985) 169 Cal.App.3d 1038, 1044)."
The court also ruled the city did not abuse its discretion, and the court rejected the landowner's argument that the city was estopped from denying the application because the landowner lacked any project approval. The California Supreme Court in late February ordered the publishing of the appellate ruling, which was filed October 30, 1998.
This was not the first time this controversy has reached the Court of Appeal. Four years ago, the court in an unpublished case also found the city had not abused its discretion in denying a proposed subdivision because the Town Council determined the development was inconsistent with the general plan (Berg v. Town of Ross (Feb. 24, 1995) A057967 [typed opn.]).
In February 1989, Susanna Toigo, H. Skip Berg and Brenda Berg (collectively known as Toigo) purchased 36.5 acres of undeveloped property in Ross for $1.75 million. The steeply sloped property has many oak trees, extensive native vegetation and rock outcroppings, and it provides wildlife habitat. The city's general plan designated it as "very low density" and it was zoned residential with 5-acre minimum lot sizes.
After losing its first round with the city, Toigo submitted a revised five-lot subdivision application on September 24, 1994. The city said the application and a revision submitted on April 17, 1995 were incomplete. The city deemed the application complete on June 15, 1995. In a staff report, city planners said the new application contained a different lot design and different road access, but planners called the environmental impacts "substantially more severe" than those associated with the subdivision in the 1990 application. The Town Council in August 1995 unanimously denied the project.
In a lawsuit, Toigo challenged the denial on numerous grounds, including the estoppel theory, under which the city would be precluded from denying the project because of earlier endorsements from city officials. Toigo filed an administrative mandamus claim alleging the town prejudicially abused its discretion. The city successfully demurred to Toiga's estoppel claim and on March 18, 1997, received summary judgement that disposed of the entire matter. The city won again when the appellate court affirmed the decision of Marin County Superior Court Judge Gary Thomas.
Toigo argued that even though the city had not made an absolute final decision on what could be built on the property, the takings claim was ripe under the futility exception. In a declaration, project engineer John Stuber said submitting a revised application was futile because the manner in which the city rejected the latest application made clear the city would not allow any residential development on the site. Judge Thomas granted the city summary judgement on the issue because Stuber offered only speculation.
The appellate court agreed. "When closely examined, the critical portions of Stuber's declaration constitute little more than unsupported conclusions and opinions and do not constitute the competent factual proof required to raise an issue of material fact on summary judgement," the court wrote.
The town's refusal to permit one use is not a refusal to permit all uses, the court said. Even the town's rezoning of the site in December 1995 — to require 10-acre minimum lot sizes — does not prevent all economically viable use of the property, the court ruled.
The city did not abuse it discretion in denying the subdivision application because the Town Council supported its decision with 38 pages of findings, the court wrote. "The findings methodically detail how Toigo's proposal conflicted with distinct provisions of the Ross general plan," the court wrote. "For example, the findings pointed out that the proposed improvements — which would require a cut of 12,500 cubic yards of earth, substantial tree removal, and an extensive network of retaining walls — are inconsistent with the general plan policies requiring the protection of natural resources, the environment, open space and community character."
As for the estoppel claim, the court noted "that Toigo faces daunting odds in establishing estoppel against a government entity in a land use case." The landowners said they redesigned the subdivision with clustered building sites because the city had earlier endorsed a clustering alternative. However, the trial judge rejected this argument because the town made "general statements endorsing the concept" of a clustered alternative. Moreover, the latest Toigo proposal was different from the clustered alternative the town discussed.
The appellate court again supported the trial judge's ruling and said the landowners needed to be much farther along in the approval process before they could argue estoppel.
"Courts have yet to extend the vested rights or estoppel theory to instances where a developer lacks a building permit or the functional equivalent, regardless of the property owner's detrimental reliance on local government actions and regardless of how many other land use and other preliminary approvals have been granted," the court wrote.
Susanna Toigo v. Town of Ross, No. A078486, 99 Daily Journal D.A.R. 1829, 99 C.D.O.S. 1455 (filed October 30, 1998, ordered published February 24, 1999).
For Toigo: Clayton E. Clement, Clement, Fitzpatrick & Kenworthy, (707) 523-1181.
For Town of Ross: Fran M. Layton, Shulte, Mihaly & Weinberger, (415) 552-7272.