Lafayette Bollinger Dev. LLC v. Town of Moraga

93 Cal.App.5th 752

311 Cal.Rptr.3d 273

LAFAYETTE BOLLINGER DEVELOPMENT LLC et al., Plaintiffs and Appellants,

v.TOWN OF MORAGA et al., Defendants and Appellants.

A163636, A164395

Court of Appeal, First District, Division 1, California.

Filed July 19, 2023

Wendel Rosen LLP, Fennemore Wendel, Todd A. Williams, Allan C. Moore, and Thiele R. Dunaway, Oakland, for Plaintiffs and Appellants.

Burke, Williams & Sorensen, LLP, Michelle Marchetta Kenyon, Oakland, Kevin D. Siegel, San Francisco, and Maxwell A. Blum, Oakland, for Defendants and Appellants.

Humes, P.J.

For several reasons, including safety and environmental concerns, the Town of Moraga denied an application by Lafayette Bollinger Development LLC, Joan Bruzzone, and David Bruzzone (collectively, the Bruzzones) to develop housing on their 186-acre property (the property). As part of the application, the Bruzzones unsuccessfully sought to amend the property's land-use designation, which has been "Study" since Moraga adopted its first general plan in 1979 (the Study designation).

The Bruzzones petitioned for a writ of mandate and brought other claims against Moraga and its town council (collectively, Moraga or the town). The trial court issued a peremptory writ of mandate directing Moraga to give the property a legally compliant land-use designation, but it otherwise rejected the Bruzzones’ claims and entered judgment in favor of Moraga. It also granted Moraga's motion to strike and tax the Bruzzones’ costs and denied the Bruzzones’ motion for attorney fees. The Bruzzones appealed, and Moraga cross-appealed from the writ.

The Bruzzones’ primary claim on appeal is that the Study designation violates Government Code section 65302, subdivision (a) ( section 65302(a) ), which establishes requirements for a general plan's land-use element.¹ The Bruzzones contend that as a result of the designation's illegality, Moraga's "entire land use element [was] out of compliance" and the town was unauthorized to "consider[ ] development applications." Thus, they claim they are entitled to a writ requiring the town to reconsider their application after it gives the property a compliant designation. Moraga does not contest that the Study designation is legally invalid, but it nevertheless claims in its cross-appeal that the trial court erred by granting any writ relief.

We reject both parties’ arguments and affirm the writ of mandate the trial court issued. In doing so, we agree with the court that the lack of a legally compliant land-use designation alone did not preclude Moraga from denying the project application for unrelated reasons, none of which the Bruzzones challenge. We also reject the Bruzzones’ remaining contentions that the trial court wrongly rejected their non-writ claims for inverse condemnation, equal protection and due process, and declaratory relief, and that it improperly denied them their costs and attorney fees. Accordingly, we affirm the judgment and the orders denying the Bruzzones their costs and attorney fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

The property, known as Bollinger Valley, is in a rural area of Moraga near St. Mary's College that "is characterized by open space, agricultural uses, and low-density residential development." The property "is surrounded by hills ... and not visible from major roads and highways in the surrounding urbanized areas." Much of the property is sloped; about half of the proposed project site has grades over 20 percent, and "significant portions" have grades over 35 percent. The property is used for cattle grazing and a summer equestrian day camp.

Joan Bruzzone and her now-deceased husband purchased an interest in the property in 1967 and took full ownership in 1977. She later conveyed the property to Lafayette Bollinger Development LLC, a California limited liability company that both she and David Bruzzone, another "member[ ] of the Bruzzone [f]amily," participate in running.

Before Moraga was incorporated as a city in 1974, the property was part of unincorporated Contra Costa County. The property's zoning designation "allowed residential development with a density of approximately three dwelling units per acre," equating to over 500 units. Upon incorporating, Moraga retained the County's zoning designation for the property.

Five years later, in 1979, Moraga adopted its first general plan. All the land within its boundaries was designated into one of three categories—"Residential," "Commercial," or "Parks and Open Space." The property was put in the latter category and denominated "Public Open Space – Study." The following year, Moraga adopted a zoning ordinance under which the property was likewise designated as "Study." Under this designation, the permitted uses were "[a]griculture and accessory buildings thereto."

Although originally meant to be temporary "while the planning agency conduct[ed] detailed studies," the Study designation remained in place for the next two decades. An updated general plan adopted in 1990 designated the property as "Study Area," and it was no longer included in the "Parks and Open Space" category. In a letter to the town planning commission before this update, David Bruzzone objected that Moraga "ha[d] failed to change the property to the appropriate zoning and [his] family ha[d] been deprived of the use of the property."

Moraga adopted its current general plan in June 2002. Before doing so, the town considered changing the property's land-use designation to "non-MOSO open space."² The Bruzzones objected to this change, proposing instead that the property's designation remain the same and the town "authorize a professional [planning] study that would be paid for by [the Bruzzones]." Subsequently, a staff report stated that maintaining the Study designation would not be "a significant disadvantage" for Moraga, given that the development standards for either that designation or the non-MOSO open space designation would be similar, and "[t]he information that would be gained by the [t]own at the property owners[’] expense" while the Study designation continued "would be very beneficial to the [t]own as it considers the orderly development of this property." Thus, the report recommended "retaining the [S]tudy designation for a period not to exceed two years."

In line with this recommendation, the general plan adopted in 2002 designated the property as "Study Area." The land-use element of the plan explained that "[d]ue to the special character of the Bollinger Canyon area, its unique development issues, and its status as one of the few remaining areas of development potential in the [t]own, the ... [a]rea will be the subject of a ‘special study’ conducted by area property owners to document the site's opportunities and constraints and define a conceptual plan of development consistent with the [general plan's] goals and policies." The contemplated "Bollinger Canyon Special Study" was to include a "Conceptual Development and Conservation Plan [(CDC Plan)] ... to illustrate how the site could be developed in a manner consistent with the [general plan's] goals and policies," which would have various elements, including proposed land-use designation(s) and proposed general plan amendments as necessary "to ensure ongoing consistency between the proposed development and the [general plan]." An appendix to the general plan noted that the special study, which was to be developed with Moraga's support, was scheduled to be "[c]omplete by December 2004."

In late 2003, the Bruzzones submitted a report that included "the findings of a year-long planning and engineering analysis" of the property, a CDC Plan describing a proposed project of 126 single-family homes, and "a formal application to amend the [general plan]" to change the Study designation and accompanying zoning. Specifically, the Bruzzones sought to change the designation to (1) residential – two dwelling units per acre for 92 acres of the property and (2) non-MOSO open space for the remaining acres.

Under the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ), the project required an environmental impact report (EIR), to be paid for by the Bruzzones. A draft EIR was begun in the mid-2000's but not released until February 2013.³ The draft EIR evaluated the proposed 126-home project as well as five less dense alternatives of "no project," 8 homes, 37 homes, 100 homes, and 121 homes.

In the same period, Moraga developed "Hillsides and Ridgelines regulations" (Hillside Regulations) to limit development on the town's hillsides. In response to the Bruzzones’ concern that the Hillside Regulations "would preclude approval and implementation of any otherwise feasible housing project on the ... property," Moraga exempted their project from the new regulations, which were officially adopted in April 2018. The exemption provided, however, that "once any pending development project application has been acted upon by the final reviewing body or is withdrawn by the applicant, this exemption shall no longer apply to any such application."

Meanwhile, a final EIR was published in January 2017. That summer, the Bruzzones submitted a revised project of 85 homes (the project), which required revisions to the EIR. A revised final EIR was published in September 2018, and the following month a hearing on the project was held before the planning commission. The planning commission recommended that the town council deny the Bruzzones’ application and, as a result, not certify the EIR. The planning commission also recommended that the town council "strongly consider" a 37-home alternative project.

The Bruzzones appealed the planning commission's decision. In November 2018, after a public hearing, the town council denied the appeal and adopted the planning commission's recommendations. In doing so, the council denied the request for a general plan amendment and accompanying rezoning and affirmed that the proposed land-use designation for the...