A Santa Barbara County property owner’s takings claim has received new life, thanks to a Second District Court of Appeal ruling. The appellate panel overturned a lower court that had ruled the property owner filed the claim too soon.

The trial court had determined the takings lawsuit was not “ripe” for a judicial decision because the level of development Santa Barbara County would permit on the six-acre site was unknown. Without a final answer from the county, the lawsuit could not go forward, the trial court ruled. The Second District, however, found that the county had made clear exactly how much development it would permit, meaning that the property owner had his final answer and the lawsuit could proceed. The appellate court made no decision on the merits of the takings argument.

At issue is a parcel in the unincorporated coastal town of Summerland, a few miles east of Santa Barbara. In 1995, the property owner, David Dunn, submitted an application to divide the parcel into two three-acre lots. The existing six-acre lot was created via a 1986 parcel map and had two potential building envelopes on either side of an active earthquake fault. The property lies in the coastal zone, so it is subject to the Coastal Act and the county’s local coastal plan (LCP).

After preparation of an environmental impact report (which was never certified), the county denied the lot-split application. Biologists had identified about one-sixth of an acre of wetlands on the property, and, despite the 1986 parcel map, setbacks from the wetlands and the coastal bluff made it impossible to locate a second building site, the county determined. Additionally, grading for development would likely result in loss of some wetlands, according to the county.

Dunn sued. He alleged that the county had violated his constitutional and civil rights by carrying out a physical and regulatory taking of his property. In early 2004, Santa Barbara County Superior Court Judge J. William McLafferty ruled that there had been no physical taking of the property, and that the regulatory takings claim was unripe.

A unanimous three-judge panel of the Second District, Division Six, upheld Judge McLafferty on the claim of physical taking, but overruled the decision on the regulatory takings. In finding the regulatory takings claims premature, McLafferty had said uncertainty “exists with respect to the scope of any development project which would be allowed on the remaining existing building envelope” because of setback requirements and wetlands protections. He also said the county could consider rezoning or a variance, or permit minor development in otherwise protected areas.

But the Second District, pointing to the denial of the lot split application, said the county had in fact made up its mind. Under Palazzolo v. Rhode Island, (2001) 533 U.S. 606 (see CP&DR Legal Digest, August 2001), a property owner need not submit “‘further and futile applications,’” the court ruled.

“The county has made clear that only one viable building site remains after the application of its regulations, and that Dunn will be allowed to build a single-family residence on that site,” Justice Steven Perren wrote for the court. “Because the county has stated that it will not allow Dunn to subdivide his property, and that it will allow him to build only one residence on the remaining building site, the permissible use of the property is known to a reasonable degree of certainty. Accordingly, the takings claims are ripe for review.”

In portions of the ruling upholding the Superior Court decision, the Second District backed the county’s designation of wetlands and environmentally sensitive habitat areas (ESHA) on Dunn’s property. Dunn had argued that the wetlands have no environmental value. The court pointed out that Dunn’s own biological consultant recognized the areas in question contain the attributes of wetlands. There was also evidence that a number of animal species rely on the wetlands, the court noted. Plus, the court ruled, under the Coastal Act, all wetlands — no matter their quality — are deserving of protection.

The Coastal Act also mandates protection of ESHA. Dunn argued that the county’s definition of ESHA was too broad and the regulations too restrictive.

“Nothing in Dunn’s briefs,” Perren wrote, “demonstrates that the wetlands on his property are not entitled to this heightened protection.”

The case now returns to Superior Court for consideration of the takings claim.

The Case:
Dunn v. County of Santa Barbara, No. B175149, 06 C.D.O.S. 781, 2006 DJDAR 1023. Filed January 25, 2006.

The Lawyers;
For Dunn: Diane Matsinger, Hatch & Parent, (805) 560-8808.
For the county: Kelly Casillas, county counsel’s office, (805) 568-2950.