Landgate, Inc. v. California Coastal Com'n

Page 841

73 Cal.Rptr.2d 841

17 Cal.4th 1006, 953 P.2d 1188, 28 Envtl. L. Rep. 21,236,

98 Cal. Daily Op. Serv. 3200,

98 Daily Journal D.A.R. 4453

LANDGATE, INC., et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

No. S059847.

Supreme Court of California

April 30, 1998.

Reznik & Reznik, Benjamin M. Reznik, Sherman Oaks, Fred N. Gaines, Woodland Hills, John M. Bowman, Los Angeles, Kevin M. Kemper, L. Elizabeth Strahlstrom and Monica Witt, for Plaintiffs and Appellants.

Paul B. Campos, James S. Burling and Stephen E. Abraham, Sacramento, as Amici Curiae on behalf of Plaintiffs and Appellants.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Jan S. Stevens and Richard M. Frank, Assistant Attorneys General, Peter H. Kaufman and Joseph Barbieri, Deputy Attorneys General, for Defendant and Appellant.

Louise H. Renne, City Attorney (San Francisco), Andrew W. Schwartz, Deputy City Attorney, Johanna H. Wald, John D. Echeverria, San Francisco, and Enrico G. Nardone, Trucksville, PA, as Amici Curiae on behalf of Defendant and Appellant.

MOSK, Justice.

In First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 321, 107 S.Ct. 2378, 2389, 96 L.Ed.2d 250, ¹ the court held that "where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which a taking was effective." In so holding, the court cautioned that the holding did not extend to "the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us." (Ibid.) In the present case, we consider whether a delay in the issuance of a development permit partly owing to the mistaken assertion of jurisdiction by a government agency is a type of "temporary taking" contemplated in First English, or if it is more in the nature of a "normal delay" that does not constitute a taking. The Court of Appeal held that a temporary taking had indeed occurred. We conclude that the present case falls squarely into the category of a normal delay rather than a temporary taking, and therefore reverse the Court of Appeal.

I.

Because of the complexities of this case, a somewhat detailed recitation of the facts is in order. The case centers on the efforts of plaintiff Landgate, Inc., ² to build a large home in the Malibu Hills. Landgate's predecessor in interest owned two long, thin parcels or "lots" oriented in a north-south direction. The northern portions were sloped, the southern portions flat. One of the lots contained a single family home on the southern portion. The coast lay to the south of these lots.

In the mid-1980's, the County of Los Angeles (the County) planned to provide an east-west road that would run through the two lots. The landowner and the County agreed that, in exchange for the owner's dedicating portions of the parcels for the roadway easement, the County would reconfigure the lots into a single, sloped 2.45-acre lot north of the road and a single, flat 1.56-acre lot south of the road, each still zoned for a single-family home. The County completed the road improvement, designated as De Butts Terrace, and formally approved a lot re-configuration, which was recorded July 5, 1989.

The lots in question are and at all relevant times were in the coastal zone (Pub. Resources Code, § 30103) and therefore subject to the development restrictions imposed by the California Coastal Act of 1976 (Coastal Act), Public Resources Code section 30000 et seq. The act requires local governments within the coastal zone to prepare Local Coastal Programs (LCP's) containing a Land Use Plan (LUP) and a set of implementing ordinances designed to promote the act's objectives of protecting the coastline and its resources and maximizing public access. (Pub. Resources Code, §§ 30001.5, 30512, 30513.) In general, the act provides that, until a certified LCP is approved by the California Coastal Commission (Commission), authority to approve development lies with the Commission. (Id., § 30519.) At the time the pertinent events took place, the Commission had approved the County's LUP for Malibu but had not yet approved the LCP. Therefore, the Commission retained jurisdiction over the issuance of coastal development permits for the area in which the subject property is located.

In October 1990, Landgate bought the sloped northern lot and received County approval in concept for grading and building plans for a single-family home to be built on the property. Landgate applied to the Commission for permits to build the house and related structures. Landgate's permit application sought approval of a 9,036-square-foot home and guest house, a swimming pool and septic tank and 8,500 cubic yards of grading. As originally proposed, the house was 44 feet above existing grade. Before the Commission's initial consideration of the development, Landgate modified its proposal by reducing the house to 7,500 square feet, eliminating the guest house and reducing the proposed grading to 4,300 cubic yards.

At its December 1990 and February 1991 meetings, the Commission was presented with staff reports objecting to several aspects of the project. First, staff was concerned with visual impacts of the house, since it was located next to Escondido Canyon, "a highly scenic area which includes a hiking trail to Escondido Falls. The proposed project is located south and west of Escondido Canyon and is visible from the Escondido Falls Trail and the Escondido Falls." The preservation of scenic and recreational resources of the coastal area is encouraged by both the Coastal Act and the Malibu LUP. (See Pub. Resources Code, § 30251.) Staff concluded that the visual impact of Landgate's proposed development would be significant both because of its location on the lower, northern lot closer to the trail and falls, and because of the 44-foot height, 9 feet above the allowable height contained in the Malibu LUP.

Second, staff found the amount of grading required of the proposed project to be objectionable. "In essence, the applicant is creating a large level pad area on a hillside lot, instead of designing the house to conform with the natural topography." The grading plan was contrary to the Malibu LUP, which called for the minimization of grading for all new development "to ensure the potential negative effects of runoff and erosion on [visual] resources are minimized." Staff found that these problems would be alleviated if the house was built on the southern side of De Butts Terrace.

These concerns and objections were inextricably linked to staff's third concern, that the Commission had not approved the lot line adjustment obtained from the County by Landgate's predecessor in interest. As noted, prior to the approval of the lot line adjustment, the length of the lots ran in a north to south direction standing side-by-side east to west. If the old lots had remained, then development could have been directed to the more topographically and visually suitable southern portion of the property. Staff further concluded that the lot line adjustment had been illegal. It reached its conclusion as follows: It first observed that section 30106 of the Public Resources Code contains a broad definition of "development" for which a coastal development permit is necessary. " 'Development' means, on land, in or under water, the placement or direction of any solid material or structure; discharge or disposal of any drenched material or any gaseous, liquid, solid, or thermal waste; grading, removing, dredging, mining, or extraction of any materials; change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act ... and any other division of land, including lot splits, except where the land division is brought about in connection with the purchase of such land by a public agency for public recreational use...." (Ibid., italics added.) Staff then cited a 1986 memorandum from the Attorney General circulated to the Commission concluding that "[a] lot line adjustment is a form of a lot split. In some instances, a lot line adjustment may be so minor as to warrant the Commission finding that it is de minimis and qualifies for a waiver pursuant to section 30624.7. In other instances a lot line adjustment may be such that it does bring about a major change in the density or intensity of use of land. In such a case it would fall within the definition of development in section 30106, and would necessarily require a coastal development permit."

The staff report then considered whether the lot line adjustment in question "involves a major change in the density or intensity of land use." It concluded that while a lot line adjustment did not alter the density of development it would alter its intensity: "The topography north of De Butts Terrace is relatively steep and not suited to development. This proposed project would change the intensity of land use in this area by allowing development of the north side of the road.... Staff believes that the least environmentally damaging site for development is on the coastal [i.e. southern] side of De Butts Terrace and that the original lot configuration of long thin parcels extending across the road should not be altered."

The Commission considered the various issues raised by staff at its December 13, 1990, meeting and voted to continue the matter because of questions concerning the legality of the lot line adjustment. According to the declaration of Landgate's engineer/representative in support of its motion (Petrovsky Declaration), "once the lot line adjustment issue was raised ... staff would not negotiate with regard to issues of the size of home, grading, etc. Instead, the legality of...