Loading...
HomeMy WebLinkAboutPC Min 1990-04-25 . . . CITY OF SEAL BEACH PLANNING COMMISSION MINUTES APRIL 25, 1990 ADJOURNED MEETING The adjourned meeting of the Seal Beach Planning Commission was called to order on Apr1l 25, 1990 at 7:30 p.m. by Chairman Sharp. PLEDGE OF ALLEGIANCE The Pledge of Allegiance was led by Mr. McCurdy. ROLL CALL Present: Cha1rman Sharp Commissioners Rullo, F1fe, McCurdy, Forsythe Also Present: Lee Whittenberg, D1rector, Dev. Srvcs. Dept. Barry Curt1s, Admin. Asst., Dev. Srvcs. Dept. CONSENT CALENDAR 1. MINUTES OF APRIL 18, 1990 MOTION by Rullo; SECOND by McCUrdy to approve the Minutes of April 18, 1990 as presented. MOTION CARRIED 5 - 0 AYES: Rullo, Fife, McCUrdy, Sharp, Forsythe PUBLIC HEARINGS 2. VARIANCE 1-90 242 FIFTH STREET, SEAL BEACH Staff Report Mr. Curtis presented the staff report. Var1ance 1-90 is a request, by applicants Rory and Andrew Hitchcock and Kurt DeMeire, to vary from Sect10n 28-801(1) of the Code. At the Planning Commiss1on meeting of March 21, 1990 the question was posed whether these applicants would be requ1red to pay Park and Recreat10n fees. Staff conferences with the City Attorney's Office determined that the proposed subdivision would require the ded1cat1on of park land or an 1n-lieu fee payment. If granted, Variance 1-90 would require the applicants to pay a fee of $150,000 to subd1vide two parcels from the existing three parcels. Staff recommended the Planning Commission request the city Council undertake a Code amendment to Section 21-32 to provide for minor subdiv1sions. Staff recommended the applicants withdraw their request for the present time. . . . Page 2 - Planning Commiss1on M1nutes of April 25, 1990 If the zoning text amendment is adopted, this variance request would become unnecessary. Mr. Curtis presented two letters for the Record from Michelle A. Brendel and Larry Peters (attached). commission Comments Mr. Sharp asked if the Code amendment would be City-wide? Mr. curtis said it would be specif1c to the Old Town area where the maJority of the eX1sting lots are already 25' wide and noted problems arise when a half lot is attached to another lot. Mr. Sharp asked how many lots are 1nvolved on First Street where the boat lot is? Mr. Curtis sa1d it's one lot to be subdivided for condominiums. Theoret1cally it could be subd1vided down to three to four lots if 1t were in D1strict 1 but it's not in District 1. Mr. Rullo asked staff how could th1S situat1on, where the two homes are built now, be considered as part of a future zoning text amendment? Mr. curtis expla1ned that the two homes at 242 Fifth Street are built as two units on a single lot and meet the set-back requ1rements for two separate lots. Public Hearing Kurt DeMe1re * 321 8th Street Mr. DeMeire sa1d they cannot pay the $150,000 park fees and withdrew their application for Variance 1-90. He hopes the City Council amends the QQgg to allow eventual sub-division of the lot. He sa1d these houses are their homes and are not speculat10n houses for re-sale. Bruce Stark * Old Town Mr. Stark commented that h1S w1fe, Michelle Brendell, was a prior owner of the property at 242 Fifth Street and not a prospect1ve purchaser. She sold it to a party who then sold it to the present owners. He questioned why the Planning Commission was considering the 1ssue now, after these houses have been bU11 t. Mr. Stark pointed out that a 25'x 117' lot in Old Town sells today for about $300,000. He said he thought th1S property sold for about $388,000 for 50' frontage. No one w1shed to speak further and the Public Hearing was closed. Mr. Wh1 ttenberg responded to the question of why the fee was discussed at this time rather than at the time the un1ts were built by saying that these fees are applicable at the time a subd1v1s1on of the property is proposed. When the 1nitial permits for the homes were issued there was no subdivision proposed and therefore no fees were required at that time. . . . Page 3 - Planning Commission M1nutes of April 25, 1990 Commission Comments MOTION by F1fe; SECOND by Forsythe to accept the request by the applicant to withdraw the application. MOTION CARRIED 5 - 0 AYES: Rullo, Fife, Mccurdy, Sharp, Forsythe *** MOTION by Rullo; SECOND by Fife to ask staff to investigate a zoning text amendment and bring a report back to the Planning Commission as soon as possible. Staff is instructed to investigate how many of these similarly situated properties are in town so the commission can estimate the potential loss of Quimby fees. MOTION CARRIED: 5 - 0 AYES: Rullo, Fife, Mccurdy, Sharp, ForSYthe *** 3. HELLMAN RANCH/MOLA DEVELOPMENT CORPORATION Chairman Sharp announced that this 1tem will be postponed until the regularly scheduled meeting of May 2, 1990. Chairman Sharp asked Mr. Whittenberg if the meeting of May 2, 1990 could be started earlier due to the anticipated length of that meeting? Mr. Whittenberg said the meeting must be at its regular time ... 7:30 p.m. MOTION by Rullo; SECOND by Fife to continue the item as specified on the Agenda to the meeting of May 2, 1990. MOTION CARRIED: 5 - 0 AYES: Rullo, Fife, Mccurdy, Sharp, ForsYthe *** ORAL COMMUNICATIONS Bruce Stark * Old Town Mr. Stark sa1d, assuming a zoning text amendment passes (permitt1ng 25' x 100' lots in Old Town as a m1nimum size) ... it seemed to him that a lot split or sub-division of a parcel would generate Quimby Act fees regardless of whether the Code approved 2500 or 25,000 square foot lots. Mr. Sharp sa1d we are trying to see if a fee structure could be set up where the fees would not be as high for a small sub-division as they are for a large sub-d1v1sion. . . . Page 4 - Planning Commission Minutes of April 25, 1990 Mr. Stark asked if he assumed that the ZTA reducing the minimum lot size from 5000 square feet to 2500 square feet also encompasses a reduction 1n the Quimby Act fees that would be generated? Mr. Whittenberg said, as he understood the Commiss1on, there are two separate areas of consideration: (1) to research and 1nvestigate whether it makes sense to reduce the minimum lot size in the Old Town area down to a minimum lot width of 25' and [a separate 1 tern to be considered concurrently] ( 2) the concern regarding Quimby Act fees. Staff is to prepare an impact report for the Commiss1on identifying the eX1sting numbers of lots in the community that could possibly be sub-divided under the proposed 25' lot size and estimate the number of 1ncoming dollars under the exist1ng provisions of the Code (under Quimby Act fees). Plus a d1SCUSS1on as to what other c1ties currently use for their Quimby fees based on small sub-divisions as opposed to a large sub- d1vis1ons. The report is to 1nclude a consideration of a differing fee structures between, for example, a four lot sub-division or less and a different fee structure for a five-lot sub-div1sion or more. Mr. Fife asked staff if, since the Quimby Act is State legislation, the City Attorney would comment on whether or not we could wa1ve whatever benefits the State legislat10n was intended to confer? Mr. Whittenberg said yes. Mr. Stark noted land is unique and wondered why Seal Beach would care what other cities were doing? Mr. Whittenberg said the City's area of concern would be directed toward how cities handle the Quimby Act fees for small vs. large sUbdiv1sions, not to lot sizes. The lot sizes in Old Town are unique to the community. Mr. Stark said staff should explore the numbers of acres of parks in other cities because Seal Beach is very short of parks. Do they require one acre of parks for every 5000 people? Seal Beach has few City- owned parks the greenbelt is not City-owned, it's a Redevelopment Project, the City leases Edison Park and the park in College Park East 1S s1tting on borrowed land from the air station. Kurt DeMeire * 321 8th Street Mr. DeMeire commented that 1f one of the concerns is income generated for the City, he thought the City would want to demolish the high density income units which generate little income due to Proposition 13 and encourage new housing. . . . Page 5 - Planning Commission Minutes of Aprl1 25, 1990 STAFF CONCERNS Mr. Whittenberg said he would be conductlng a public workshop to get input on the Housing Element. It wll1 be held on Monday, April 30, 1990 at 7:00 p.m. in City Councl1 Chambers. This is for all persons wishing to discuss the Housing Element proposals before the Planning Commission. Copies of the Housing Element with revisions will be available to the public on Friday, Aprl1 27th. COMMISSION CONCERNS Chairman Sharp said that Mr. McCurdy will be on a previously scheduled cruise which will take place during the 5-2-90 Planning CommlSSlon meeting. Mr. Fife asked staff about 320 Coastline, where Mr. Dutton had built a spa into his side yard setbacks. Mr. Whittenberg replied that in March nOlse studies were done by the Orange County Environmental Management Agency along Paciflc Coast Hlghway and Seal Beach Blvd. They did nOlse measurements in the rear yards where the walls were six foot in some yards and eight foot in other yards. Staff wanted to see lf the lncreased height of a wall actually made any difference in noise levels. The results of those measurements have not come back to the Planning Department; it is anticipate they wll1 be back to staff by mid-May. Once staff has looked at those numbers they will then begln formulating some ideas and will report back to the Commission. Mr. Fife asked what the status was on 1733 Crestview where the patio encroaches into Gum Grove Park. Mr. Curtis said this matter was forwarded to the City Attorney last week. Staff has been unable to reach the property owner for the last month and he has exceeded the deadline put on this matter by staff. Mr. Rullo asked is staff had gotten any further with ticketing offenders for varlOUS violatlons. Mr. Whlttenberg said he met with the City Attorney on 4-24-90 and they are still doing research and background work on this matter. Staff hopes to have some more information on thls at the end of June. ADJOURNMENT Chairman Sharp adJourned the meeting at 8:30 p.m. Respectfully Submitted, c\o~~'"' Joan Fillmann Secretary Department of Development Services . . . Page 6 - Planning commission Minutes of April 25, 1990 These Mlnutes are tentative and are subject to Planning Commission approval. *** The Planning Commission Minutes of April 25, 1990 were approved by the Planning Commission on 5-q -'10 ~ . Mr. Lee Wh1ttenberg D1rector, Dept. of Development C1ty of Seal Beach 211 8th Street Seal Beach, Ca. 90740 219 Seal Beach Bl. #A Seal Beach,Ca. 90740 Apr11 25, 1990 Serv1ces Re: 242 & 242-1/2 5th Street, Var1ance 1-90 & Zon1ng Text Amendment Dear Mr. Wh1ttenberg: I am a pr10r owner of the above property. The parcel cons1sts of one 25' lot down the m1ddle and a half lot or 12-1/2' on e1ther s1de. I was told by the C1ty I would have to pay 1n-11eu park land ded1cat10n fees to subd1v1de th1s'lproperty so that two s1ngle fam11y homes could be bU11 t and sold. I understand others have been told the same 1nformat10n. The property has been sold for cons1derably less than the pr1ce for two s1de-by-s1de 25' lots due to these fees. The cost of the parcel plus the 1n-11eu fees for subd1v1s10n more closely approx1mates the cost of purchase of two s1de-by-s1de 25' lots wh1ch th1s property 1S not at th1s t1me. The current owners bought th1s parcel at s1qn1f1cantly below market 1f you want to cons1der th1s 2 s1de-by-s1de 25' lots wh1ch 1t 1S not. I understand the property sold for approx1mately $388,000. Current tax rolls show a full value of $395,760 for th1s property wh1ch probably reflects the sel11ng pr1ce of some $388,000 x 1.02% per Prop. 13. Wouldn't everyone love to purchase property far below market that carr1es . a cloud on the property and have C1ty cooperat10n 1n substant1ally ra1s1ng the1r property values through Zon1ng Text Amendments, etc? Your own staff report of 4-25-90 shows that 25% of a s1ngle fam11y lot has a fa1r market value of $75,000 and therefore 1t follows that you accept that a lot has at least a fa1r market value of $300,000 wh1ch 1S most 11kely conservat1ve. Forg1v1ng the 1n-11eu fees, or allow1ng subd1v1s10n w1thout the fees by enactment of a Zon1ng Text Amendment 1S s1mply g1v1ng these owners a g1ft of $300,000 or more. I be11eve there has never been ~n 1ntent to bU11d the two condos on th1s property and I be11eve the C1ty 1S cooperat1ng w1th th1s decept1on. The C1ty f11e on the property shows a letter from the Coastal Comm1SS1on dated 10-3-88 and descr1bes the proposed development as "construct10n of 2 s1ngle fam11y dwel11ngs, 23 feet h1gh, w1th 6 parkIng spaces." Var1ance App11cat10n s1gned by owner DeMe1re states"Two condos attached at the garage have already been approved. We are applY1ng for two totally separate condos." Pub11c not1ce 1n the Journal 4-6-89 referred to, "Request to construct two separate condom1m1ums 1n 11eu of the approved plans wh1ch call for two attached condom1n1ums at 242 and 242-1/2 5th Street,Sedl Beach. II Var1ance 3-89 also allowed for wa1ver of a ten foot setback between dwel11ng un1ts on the same lot. However, th1s wa1ver 1S not noted 1n the pub11shed not1ce of pub11c hear1ng and appears 1nappropr1ate w1thout not1ce. The bU11d1ng perm1t #1331 dated 10-26-89 1S for "2 Apts.", but on the copy the word "condos" 1S 1nserted before"Apts." and then scratched out. . Var1ance 1-90 1S be1ng- heard at an "adJourned" Plimn1ng Comm1SSIon meet1ng wh1ch appears to be an InapproprIate forum. I be11eve 1t should be heard at a regularly scheduled meet1ng of the Plann1ng Comm1ss10n when res1dents regularly expect the Plann1ng Comm1ss10n. 4.:l..5.qo &bm;mcL Fol<. THe lCeCt>e/) * .. -2- . Any wa1ver of the park fees and/or the proposed Zon1ng Text Amendment to decrease the m1n1mum lot Slze 1n D1str1ct 1 1S slmply a glft to the current owners and may subJect the C1ty to Ilt1gat1on from others who d1d not rece1ve such spec1al prlvllege. Spec1f1cally, In add1t1on to the property at 242 & 242-1/2 Flfth Street, another lndlvldual in town known to be a C1ty "favorlte" stands to ga1n between several hundred thousand and several m1ll1on dollars In econom1C advantage by the proposed ZTA. Owners of 242 & 242-1/2 F1fth Street have appeared at the Plann1ng COffiM1ssion and compla1ned that they are hav1ng problems gettlng permanent f1nanclng and therefore need C1ty ass1stance. Flrst, th1s 1S not the C1ty'S problem as many property owners have f1nanc1ng problems due to the part1cular character1st1cs of the1r property, and secondly, I have spoken wlth a number of lenders and f1nd that f1nanc1ng 1S easlly ava1lable on condos up to 2 m1ll1on dollars WhlCh should certa1nly cover the needs of these owners. Th1S 1S my protest as to any wa1ver of the 1n-l1eu fees and obJect1ons to the proposed Zon1ng Text Amendment to decrease the m1n1mum lot Slze 1n D1str1ct 1. Please see that th1S letter lS conta1ned 1n packets on both these tOp1CS. For conven1ence, e1ght coples attached for 4-25-90 meet1ng. ely, __~ . IJ~ II M1C elle A. Brendel, Ph.D.1 , 1111J . \ ...- t . To: Clty of Seal Beach 211 8th St Seal Beach Plannlng Co~~ and Clty Cou~cll Dear Slr or Madam, On the Zonlng Text Amendments to create s~aller lots there are a number of 1ssues ralsed. 1.The reference to D1str1ct I 1n the papers reportlng the ZTA and Var1ance 1-90 1S unclear and fuzzy. Do you mean Councll D1str1ct I or Plannlng Dlstrlct I? 2.If the lot S1zes downtown are made smaller, 1.e. 25XIOOft or 2500 sq ft what happens for lots that are 25 X 1l7.5ft 1n s1ze? It appears that the back 17.5 ft of the lot 1.n the RHO area gets "non-conformed". Also the 'tak1ng' of that port10n off the leglt1mate lot Slze could be used for re-development purposes. For example, a common rede~elop~ent trlck 1S to take prlvate property for a street 1mprovement. Very easlly,then, a flfty foot wlde roadway can be constructed where the alleys are In the RHD Resldentlal Hlgh denslty -zoned areas. That lS, 17.5ft off the backs of each propert; along wlth the 15ft aIle:' 17 5+.17 5ft + a~le; "'ldth of 15ft equal~ 50 ft /[).. lea ~'I (-4t] > P.O. B~;; ;;~:2lS ;~a 0> fs Seal B :\' 4-25-90 /\ EIGHT COPIES ARE ATTACHED. PLEASE GIVE ONE ~O EACH PLANNING COMMISSIONER FOR MEETING 4-25-90 . 3.The creatlon of 2500 sq ft lot~ an)w~ere ln town at thl~ 1990 date could be used as precedent -settlng and be requested by OthEl~ In the lssue of wldenlng Bolsa, the Clty ltself could be the requestor The scenarlO for Bolsa lS that there lS a strlng of Hlgh TenSlon Ilnes runnl~g along Bolsa to Seal Beach Blvd. The) Slt on an easment. The c ler of record 1S the key here and as al most half of the 66ft wlde ea5e~ent lays on the street and sldewalk, the Clty lS 'owner of record Tnat lS 30ft of the easement lS pub11d land and 36ft 1.n the back yard of the home- owners. The tak1.ng of the 36ft off the length of the prlvate homeowners property would create lots of....2500 sq ft. So the Zonlng Text Amendment WhlCh lS an amen~ent of the general Plan,the Clty'S operatlng document, could well be applled here and be hard to avold such reS~est for appllcatlon Perhaps thlS wldenlng of Bolsa lssue lS the reason then ~I) the ZTA comes up now and Var 1-90 lS smokescreen . 4.In the Land Use Plan the Resolutlon 3735 shows that there are eXlstlng low denslty areas.1they lnclude Marlna H1Il ColI pk East and West and are mentloned as be1ng stable and not changlng much. Further Resolutlon 3735 dated recently as passed in Dec 1987 states that "NO ADDIDITIONAL LOW DENSITY RESIDENTIAL USE IS PROPOSED FOR THE CITY" (emphasls added). Therefore one can only conclude that the Mola proJect on the Hellman ranch 1.S to be cons1dered as Med1urn dens1ty development. Med1um Dens1ty 1.S descr1.bed as m1n1mum lot area of 2500 sq ft per dwell1.ng unlt. Also ment1.oned separately 1.5 2500 sq ft per dwel11ng un1.t 1n D1.st I so of PCH. Med denslty allows for s1.ngle fam11vhous1ng in clusters,townhouses, two-famlly houslng on a lot etc. If no add1t10nal low density was and 1.S proposed for the Clty then lS the Hellman Ranch to be medlum denslty? And wlth lots of 2500 sq ft? Perhaps then the Zon1.ng Text Amendment consldered for reductlon of lot S1zes 1.S to empower thlS part of the Land use Element belng clted as backgrou for hous1ng. element stud1es updated to comply w1.th Wetlands Soc1.ety laWsult. What 1S good fOr gQose...and the Mola can c1te th1.s to allow smaller lot sizes out there. That is the 130+ homes of 50 X 100 ft lots Ban be Spllt to create 260 lots and all reslde on the hlgh area between the Hlll and pollce Station. ThlS Zonln9 Text ammendrnent creates more non-conformlng property andfuakes for bad planning by creat1ng problems 1n other areas of Seal Beach J Larry Peters a;~?yrc 4- 2.5. C[o --.suh~cL +ole.. The ~ecoec::, ~ "'~ r3 1.cMr- .... '1-' ~;- ~ I h- WHAT CAN PUBLIC AGENCIES DO TO PROTECT THE PUBLIC INTEREST AFTER FIRST ENGLISH AND NOLLAN? V' I ~ ~ {'- ~ By Katherlne E. Stone if- 't > I l, I If>- '-f! ~ ~l 'f ,I r ill HAS THE SUPREME COURT CAST AN INSTANT PALL ON LAND USE CONTROLS? The edltors of the Los Angeles Times characterlzed the Supreme Court's declslon ln Flrst Engllsh Evangeli~ Lutheran Church of Glendale v. County of Los Angeles _ ("First English Church") that the Constltution requires Just compensation for over-regulatlon, as castlng an "lnstant pall on state and local land use controls at a tlme when such controls are crltlcal to tS~ orderly development and protectlon of the environrnent."_1 The Times edltorial worrled that planning agencies may be paralyzed by fear of facing huge monetary judgments and suggests that the validlty of routlne land use regulations may be put ln doubt br the Supre~e C~4rt's rullng. Other newspapers echoed the Tlmes pesslmlsm._1 Developers' attorneys j~bllantly pronounced Nollan v. Callfornla Coastal Comrnlsslon_/ the death knell to the Comrnlssion's beach access program and predlcted an end to "extortlons" for development permits. Michael Berger, comrnentlng on Flrst English Church and Nollan, wrote ln the Dally Journal liThe recent declsions represent merely the tlp of a large lceberg; much of the Supreme Court's land use attention during the past decade has focused on California." Mr. Berger says prop~7[ty owners want the recent land use decislons applied._ At the same time publlC officials, particularly ln Callfornla's coastal areas, are faced wlth development pressures that threaten to overwhelm and destroy our quality of life. For example, over 80% of Callfornlans llve wlthln a one hour drlve of the coast. As observed by the L.A. Times "If coastal protectlon lS relaxed rather6than strengthened, the hour's drlve mlght not be worth It."_1 In the last lssue of the Callfornla Real Property Journal, Marsh and Rosenthal correctly observed that lithe I 4 . I I . constltutlonal and analytlc tools of the CO~7t are far too llmlted to brlng about the needed balance."- ThlS wrlter agrees wlth the above pOlnt, but respectfully dlssents from Marsh and Rosenthal's suggestlon (WhlCh echoes that of developers' attorneys), that Flrst Engllsh Church and Nollan rePa~sents a dramatlc break wlth flfty years of ]urlsprudence.-/ The Supreme Court's Recent Declslons Should Not Inhlblt Reasonable Land Use Regulatlon. In contrast to the two well publlclzed oplnlons noted above, a thlrd land use case declded by the Supreme Court thlS term went almost unnotlced. In Ke,~tone Bltumlnous Coal Assoclatlon v. De Benedlctls,- ("Keystone Coal") the court upheld a regulatlon almost ldentlcal to the one struck d~~q Slxty flve years ago In Pennsylvanla Coal Co. v. Mahon--/, where Chlef Justlce Ollver Wendell Holmes, Jr. lnvoked a constltutlonal debate by statlng "If regulatlon goes too far lt wlll be recognlzed as a tak1ng". The "taklng" debate has pltted the reserved power of state and local government r~/exerclse the pollce power for health, safety and welfare__ agalnst the Just compensatlon clause of the fifth amendment to the United States Constltution. For the last slxty-flve years government lawyers have argued that a sufflclent remedy for a land use regulatlon that goes too far 1S 1nvalldatlon of the regulatlon under the due process clause of the Constltutlon. First Engllsh Church has settled that debate. Developer and landowner attorneys have now persuaded a maJorlty of the court that Just compensatlon lS requ1red by the f1fth amendment for even a temporary tak1ng. Whlle the constltutlonal debate has ended, the h1gh court's oplnlons thlS term do not In any way suggest that reasonable land use regulat10ns wlll subJect local government to damages or that government should refra1n from condltlonlng development on the provlslon of land dedlcatlons, 1mpact fees, and other exactlons. On the contrary, government may stlll proht~7t cltlzens from ra1sing livestock 1n thelr backyards,-- proh1bt~/cltlzens from runn1ng buslnesses In res1dent1al areas,-- requ1re exactlons to m1tigate 1mpacts of development and put a temporary hold on deYi7opment. The court's prlor decls10n In Aglns v. Tiburon-- limltlng a _lir \ developer to one house for everyone, two or f1ve acres was not overruled, but aff1rmed in F1rst Engl1sh Churc~5,nd Nollan. Government may st1ll proh1b1t at~/use of,-- or even destroy property that is dangerous.-- But 1f a regulat10n den1es a landowner all use of h1S or her property w1thout val1d ]ust1f1cat1on, or 1f a ded1cat1on cond1t1on 1S not reasonably related to the 1mpacts caused by the develop- ment, the government may be requ1red to pay compensat1on. It 1S 1nterest1ng to note that none of the cases 1nvolved the typ1cal local regulat10n of a developer's des1re to bU1ld a h1gh dens1ty proJect on sens1t1ve coastal property. Each of the cases 1nvolved un1que facts Wh1Ch cannot be app11ed across the board to all res1dent1al and commerc1al development of v1rg1n land. I ~ I f I I ! I I I The Rul1ng In F1rst Engl1sh Church Is No B1g Surpr1se. It lS not surpr1s1ng that the Un1ted States Supreme Court ~~~ ruled that the f1fth amendment Just compensat1on clause--I of the Un1ted States Const1tut1on obl1gates the payment of 1nter1m damages 1f a government regulat10n amounts to even a temporary tak1ng of property. Before ta79, when the Cal1forn1a Supreme Court in Ag1ns v. T1buron __I held that "lnverse condemnat1on lS an 1nappropr1ate and undes1rab1e remedy 1n cases in which unconst1tut1onal regulat10n lS alleged," most government lawyers assumed damages m1ght be awarded 1n a proper case. Slnce at least 1981, when f1ve ]Ust1ces of the Un1ted StateI Supreme Court 1n San D1ego Gas & Electric Co. v. San D1ego~/ 1nd1cated compensation might be constitutionally required and Just1ce Brennan stated "[alfter all, 1f a poliS8man must know the Const1tut1on then why not a p1anner?,"--1 we have been expect1ng a rul1ng to that effect from the h1gh court.21/ What lS surpr1s1ng lS the veh1cle the court chose to make 1tS pronouncement--a case where the regulat10n appears to be clearly ]ust1f1ed on 1tS face. In F1rst Engl1sh Church, Ch1ef Just1ce Rehnqu1st, ]olned by Just1ces Brennan, White, Marshall, Powell and Scal1a, reached the remedy without f1nd1ng a wrong. The Court expressly dld not dec1de whether Los Angeles County's inter1m flood ord1nance (enacted as an urgency measure after a f1re and flash flood destroyed ten llves and a camp for hand1capped ch1ldren) actually den1ed the church "all use of 1tS property or whether the county m1ght avo1d the conclus1on that a compens1ble tak1ng had occurred by establ1sh1ng that the '" ~ 1 f ,; j den1al of all use was 1nsulated as a pa2~ of the State's author1ty to enact safety regulat1ons.,,_1 As stated by Just1ce Stevens, d1ssent1ng: "[I]t 1S 1mperat1ve to stress that the court does not hold that appellant 1S ent1tled to compensat1on as a result of the flood protect1on regulat10n that the county enacted. No matter whether the regulat10n 1S treated as one that depr1ves appellant of 1tS property on a permanent or temporary bas1s, the court's precedents demonstrate the type of regulatory program at23~sue here cannot const1tute a tak1ng."_1 Also 1t is 1mportant to stress that the Court d1d not hold, as suggested by some developers' attorneys, that all (or any) temporary morator1ums are per se a tak1ng. The term temporary tak1ng refers to the t1me when an otherw1se permanent regulat10n was 1n effect before be1ng 1nvalidated by a Court or w1thdrawn by a publ1C agency. Temporary regulat10ns for rezon1ng or other land use purposes would not ord1narily const1tute a tak1ng -- as stated ~~/the Un1ted States Supreme Court In Ag1ns v. T1buron._ Only A Narrow Issue Was Dec1ded In First English Church The 1ssue dec1ded by the Supreme Court 1n F1rst Engl1sh Church 1S very narrow: "Where the government's act1v1t1es have already worked a tak1ng of all use of property, no subsequent action by the government can relieve 1t of the duty to prov1de compensat1on for the perlod dur1ng WhlCh the ~glung was effective." {Emphasis added).__/ ~ " It is apparent that Ch1ef Just1ce Rehnqu1st was frustrated w1th the Court's repeated fa1lure to reach the tak1ng question. Four t1mes 1n the last SlX years, after assum1ng ]ur1sd1ction, the Court ruled that e1ther the regulat2~~ d1d not constitute a tak1ng, as in Ag1ns v. T1buron__l, or that factual disputes might still lead to the conclus1on that no taking had oS9urred, as in MacDonald, Sommer & Frates v. Yolo County,_ Will1amson County Reg10nal ~ 11. ;1 !1 \; I I I . i i d l . t i . . I . I Plannlng Comm'n. v. Hamllt~~ IBank~/ and San Dlego Gas & Electrlc Co. v. San Dlego.--I ThlS term the Court accepted three land use cases where a taklng was clalmed: Flrst Engllsh Church, Nollan and Keystone Coal. As none of the cases presented facts sufficlent to actually constltute a compenslble taklng, the Chlef Justlce had to declde38~e remedy In a vacuum, or "leave lt for another day."- Curlously, the Court selected from the three potentlal taklng cases before lt thlS term the case WhlCh most observers vlewed as the least llkely to constltute a taklng. Flrst Engllsh Church lnvolved a challenge to Los Angeles County's lnterlm flood ordlnance adopted as an urgency measure after a devastatlng flood destroyed llves and property, lncludlng a retreat and a camp for handlcapped chlldren owned by the Flrst Engllsh Church. The camp was sltuated along Mlll Creek, a natural dralnage channel In Los Angeles County. Only the low lYlng portlon of the Church's property was affected by the ordlnance. The ma]Orlty of the Court 1n First Engllsh Church llmlted ltS dlScusslon and 1tS holdlng to the remedy avallable lf a temporary taklng 15 found. The Court speclflcally dld not address whether the ordlnance In questlon actually effected a taklng. Nor dld it alter the tests generally employed by the Court for determlnlng whether a taklng has occurred. Chlef Justlce Rehnqulst emphaslzed that for purposes of hlS oplnlon only, the Court assumed that the moratorlum had deprlved the church of all use of ltS property for a conSlderable perlod of time. He also emphaslzed that even lf thlS were true, compensatlon would not be rj~41red lf the regulatlon was ]ustlfled for safety reasons._/ As examples of such ]ustlflcatlon, the Chlef Justlce referred to cases upholdlng the exerClse of the pollce power prohlbltlng ex~,/vatlons below two feet above maxlmUID/ground water leve1477 brlck yards In certaln areasll and a dlstlllery.~1 Justlce Rehnqulst repeatedly emphaslzed hlS assumptlon that the church was deprlved of all use of ltS property, and dld not suggest that somethlng less would amount to a taklng. Slgnlflcant1y, the court stated that the regulatlon In Agln~, where property was dow~~qned to 1-5 unlts per flve acres" ld not effect a taking."_/ . . . I I , I f I f Slnce at least 1926 ~hen the Supreme Court declded Euclld v. Ambler Realty Co.,1-1 lt has been establlshed that (1) a regulatory program does not constltute a taklng unless lt destroys all reasonable use of the property; (2) state law deflnes property rlghts; and (3) government may, ln a proper exerClse of ltS pollce power, substantlally lnterfere wlth even vested property rlghts to prevent harm. The Court's declslon ln First English Church does not change these established land use rules. The Nollan Case Old Not Slgniflcantly Alter Land Uses Rules In Nollan, a 5-4 declslon authored by Justice Scalia, JOined by Rehnqulst, White, Powell and O'Connor, the Court held lnvalid as applled to the Nollan's property the Coastal Commlsslon's requirement that a permit to bUild a new beachfront house be condltloned on provid1ng publlC access along that beach. Although the Court stated that 1n th1S c1rcumstance, 1f the State wanted to prov1de for publ1C access lt would have to pay for 1t, there was no tak1ng because the Nollans had bUllt the1r house without complYing with the cond1t1on. The Court observed that condlt1on1ng development on ded1cation of land lS constltutlonal 1f the cond1t1on 1S designed to serve the same purposes for Wh1Ch the Commission could deny the permit, but ruled: "The eVident constltutlonal propriety disappears, however, 1f the cond1tlon Subst1tuted for the prohlb1tlon utterly falls to further the end advanced a1 the Just1flcation for the prohlbitlon."-1.1 The Court recognized that the Comm1ssion's goal to ensure adequate publiC access to the publiC tidelands was valld, but held that there was an 1nsufflclent "nexus" between th1S purpose and the condit1on imposed. In other words, the Commisslon did not show that the new house would burden publiC access to the beach. Nor did the eVidence show that the dedication conditlon would relieve the 1mpacts the Commission advanced as Justlflcation for the condition lnterference with the publiC'S Vlew of the ocean. The Court dld say, however, that assumlng the Commisslon could have exercised itS police power to deny the permit because of lmpacts caused by the development, alone or ln conJunction wlth other slmilar developments, cond1tlons related to those visual impacts such as height llmitations, Wldth restrictions, a ban on fences, or even requlrlng a "view1ng I spot" on the NO~a,nls property for passersby would be const1tut1onal.__ L1ke the dec1s1on ln F1rst Engllsh Church, the Court's hold1ng 1n Nollan lS narrow and reafflrmed trad1- tlonal land use rules. The maJor1ty c1ted to the downzon1ng ln Aglns v. Tlburon as an example of a val1d land use regu- latlon, as 1t had ln F1rst Engllsh Church. The pract1cal effect of the Nollan dec1s1on 1S to requlre state and local governments to artlculate clear flndlngs that 11nk cond1t1ons requlrlng ded1catlons and other exact10ns to the burdens caused by the development. The Court Reaff1rmed Government Power To Control Land Use In Keystone Coal . State and local governments' power to enact and enforce reasonable land use regulat10ns w1thout 11ablllty for damages was reafflrmed earl1er thlS term ln Keystone Coal. The case arose out of a challenge to a Pennsylvanla statute Wh1Ch requlres coal mlne operators to leave a cer- ta1n amount of coal 1n the ground to prevent land SUbS1d- ence. The Pennsylvan1a State Leg1slature based 1tS dec1s1on to 1mplement the support requ1rement on deta1led f1nd1ngs that the leglslat10n was 1mportant for the protect1on of publ1C health and safety, preservatlon of ~ffected mun1Cl- palltles' tax bases and land development.~1 I j I I I I , I ~67ty-flVe years ago, ln Pennsylvanla Coal Company v. Mahon,__ the Supreme Court held that a similar regulation was not properly Just1f1ed. ThlS tlme, however, ln an oplnlon wr1tten by Just1ce Stevens a maJor1ty of the Court held that the regulat10n was a valld exerClse of the pollce power and not a taklng of property wlthln the meanlng of the flfth amendment tak1ng clause. The Court held that the m1ne operators had not sustalned thelr heavy burden of show1ng that the statute on its face effects a taklng. The Court emphas1zed that the record showed that (1) the state had acted to arrest what it perceived to be a slgnlf1cant threat to the common welfare; and (2) the statute d1d not make lt lmposslble for the mlne operators to prof1tably engage ln the1r bus1ness or unduly 1nterfere w1th the operator's 1nvestment-backed expectatlons. The Court further held that the coal left 1n the ground 1S not a separate segment of property for purposes the tak1ng clause, and that the requ1rement tha~ the coal left 1n place d1d not effect a physlcal tak1ng.~1 of be ~~",~ ! THE CASES SHOULD NOT INHIBIT REASONABLE LAND USE REGULATION Although as a practical matter the Flrst English Church and the Nollan cases may temporar1ly have a Ch1ll1ng effect on local land use plann1ng, the Supreme Court's op1n1ons th1S term do not ln any way suggest that reasonable land use regulatlons w1ll subJect local government to damages. Th1S lS eVldenced by the Keystone Coal dec1s1on, WhlCh applled the trad1tlonal tak1ng analysls and upheld the Pennsylvan1a statute, and the Nollan dec1s1on where the Court stated: "Our cases have not elaborated on the standards for determ1n1ng what con- st1tutes a 'leg1tlmate state 1nterest' or what type of connectlon between the regu- lat10n and the state 1nterest satlsf1es the requ1rement that the former 'sub- stant1ally advance' the latter. They have made clear, however, that a broad range of governmental purposes and reg~- lations sat1sfles these requ1rements."....1/ The Court then c1ted as examples of vall~ land use regulat10n c~~~s uphold~ng s~en1c z~n1n~~/, landmark preservat1on--1 and res1dent1al Zon1ng.~1 Thus, although the Court's three "taking" dec1s10ns th1S term may result 1n closer Jud1cial scrut1ny of land use regulat1ons, local government may cont1nue to enact morator1ums, rezone property, proh1b1t development ln setback areas and greenbelts, control growth, preserve historlcal landmarks, prevent nOX10US uses of property and requ1re land ded1cat1ons and other exactlons to m1t1gate the lmpacts of development, so long as the regulat10n does not amount to a compens1ble "taking" under the trad1t1onal tak1ng analys1s. QUESTIONS LEFT UNANSWERED BY THE COURT'S DECISIONS What Is A Taklng? Th1S term the Supreme Court d1d not add any new 1ns1ghts on what m1ght constitute a taking. The Court has often stated that there are no hard and fast rules for determ1n1ng when a taking has occurred, and that such a46/ dec1s1on must be made on an ad hoc, ca~;-by-case basis.-- In PruneYard ShOPP1nq Center v. Robins--/, the Court stated: . . "It 1S well establ1shed that not every destruct10n or In]Ury to property by governmental actlon has been held to be a taklng 1n the const1tutlonal sense. Rather, the determ1nat1on whether state law unlawfully lnfrlnges on a landowner's property 1n vlolatlon of the tak1ng clause requlres an exam1nat1on of whether the restr1ct1on on pr1vate property forces some people alone to bear publ1C burdens Wh1Ch, 1n all fa1rness and ]Ust1ce, should be borne by the publlC as a whole." In Nollan, the ma]Orlty relled on the Court's op1nlon 1n Agins v. Tlburon as expresslng the test for a tak1ng as follows: . lOA land use regulat10n does not effect a taklng lf 1t 'substantlally advancers] leg1t1mate state 1nterests' and does not 'den[y] an owner econom1cally v1able use of h1S land', ~~ ,v. T1buron, 447 U.S. 2 5 5, 2 6 0 (1980)." _I , I In analyz1ng a tak1ng cla1m the Court has trad1- t10nally focused on two pr1mary factors. The f1rst 1S the character of the state act1on. As a rule, 1t 1S more d1ff1- cult to establ1sh a tak1ng when the lnterference w1th prop- erty 1S character1zi~/as regulatory as opposed to actual phys1cal occupat1on_ , and harder st1ll when the 1nterference lS necessary for ths Qromot1on of the health and safety of the general publ1C~7. The more substantlal the publ1C 1nterest, the less llkely 1t 1S that a tak1ng w1ll be found. Local ent1t1es have broad d1scret1on to el1m1nate nOX10US uses of property, or uses Wh1Ch constltute a publ1C nU1sance, even 1f the exerC1se of such d1scret1on substantially tqterferes with an 1nd1vldual's use of h1S or her property.~1 In Flrst Engl1sh Church, the Court recognlzed that even all use might be proh1blted 1n a flood zone for safety reasons. The second pr1mary factor lS the l~~qCt of the regulat10n on protected property 1nterests._1 In Keystone Coal, the Court noted that the statute d1d not make 1t rmposs1ble to engage 1n the coal m1nlng bus1ness or unduly 1nterfere w1th 1nvestment-backed expectat1ons. When analyz1ng these k1nds of factors 1t lS 1mportant to remember that property 1nterests are 37reated and def1ned by state laws, not the Const1tut1on.~ I ~ Any "taklng" analysls should start wlth the questlons: (I) what alleged property interest has been "taken"; and (2) lS lt a protected lnterest under Callfornla law? For example, ln Callfornla development lS a prlvllege, not a rlght, and a developer cannot have a reasonable 1nvestment-backed expectatlon (a protected property 1nterest) 1n a ~art1cular development untll he has ga1ned a vested r1ght.~7 The rlght to develop a partlcular proJect generally does not vest untll there has been substantlal detr1ment ln good fa5~' reI lance on a valldly lssued bUlldlng permlt.-- There lS no rlght tQ6q hlgher or even to the eX1stlng zonlng class1ficatlon.~1 It lS not unt1l a protected property rlght has been "taken" that the questlon of compensatlon ar1ses, and before a landowner can clalm a denlal of ,11 use he must apply for a "reasonable use" of the land.~1 These well-establlshed rules have not been affected by the Court's decislon ln First Engllsh Church or Nollan, and are reaff1rmed ln Keystone Coal. It lS lmportant to be aware, however, that S7ghts may vest earlier pur~~qnt to a development agreement,~ a vestlng tentatlve ma~~/or automatlc approval under the Permlt Streamlinlng Act.-- If A Taklng Has Occurred, When Did It Start? In Flrst Engllsh Church, Justlce Rehnqulst assumed that the county's moratorlum had denled the church of all use of 1tS property from the outset for a substant1al per10d of t1me, and 1ncluded llt1gatlon delays 1n the calculat1on. Th1S lS dlsturblng because lltlgat10n delays can be substantlal, and such delays are often beyond the control of defendant government agencles. The opinlon dld not explaln when such delays mlght become a taklng, but stated: "We . . . do not deal w1th the qU1te different questlons that would arlse in the case of normal delays in obtainlng bUllding permlts, changes in zoning ordinances, varlancgI/and the llke, which are not before us."-- .- ~ ~-... , . . Just a ~~ar ago, 1n C1ty of Renton v. Playt1me Theatres, Inc.,~/ Just1ce Rehnqu1st wr1t1ng for the ma]Or1ty stated "the C1ty must be allowed a reasonable opportun1ty to exper1ment w1th Solut1ons to adm1ttedly ser10US problems." Prev1ously, 1n W1ll1amg~~ County Reg10nal Plann1ng Comm'n v. Ham1lton Bank,-- the Court held that even an e1ght-year appl1cat1on process d1d not present a "r1pe" tak1ng cla1m. Before a r1pe tak1ng 1ssue could be presented the landowner must reapply for a development perm1t and make a "mean1ngful a~il1cat1on." In MacDonald, Sommer & Frates v. Yolo County,--I the Court requ1red the developer to seek a var1ance before cons1der1ng the tak1ng cla1m. These cases show that what const1tutes a substant1al per10d of t1me 1n the V1ew of the Supreme Court needs clar1f1cat1on. What Is Just Compensat1on? . The Court only br1efly d1scussed the quest10n of the measure of damages for regulatory tak1ngs 1n F1rst Engl1sh Church. In 1tS d1Scuss1on, the Court relied on phys1cal tak1ng cases ar1s1ng out of the government's tem- porary appropr1at1on of pr1vate property dur1ng World War II. The Court noted that 1n these cases, the measure of damages was based on the value of the use of the land dur1ng the per10d of t1me the land was used by the government. "'It 1S the owner's loss, not the taker's ga1g~/wh1Ch 1S the measure of the value of the property taken.'''__ Questions rema1n as to the standard for measur1ng the owner's loss. It would appear that only the m1n1mum const1tutional use m1ght be compens1ble for a temporary tak1ng, not the h1ghest and best use. Other 1ssues such as the owner's duty to m1t1gate, offsets for 1ncreases 1n value and many other well-recogn1zed rules for valu1ng property damage remaln to be Iltlgated. Normally, 1n Cal1fornla, a temporary depr1vatlon of all use wlll be offset by 1ncreases 1n land value. What Nexus Is Const1tutlonally Requ1red For Development Condit1ons? The ded1cat1on condlt1on 1n Nollan was held 1nval1d because the ma~g7r 1 ty fel t 1 t "utter ly falls to fur ther the end advanced."__ But the Court d1d not clar1fy what type of connect1on 1S const1tut1onally requ1red. It has always been the rule 1n Cal1forn1a and elsewhere that there must be a reasonable relat1onsh1p between the development 1mpacts and exact1ons. The landowner 1n Nollan argued that there must be a d1rect connect1on between the cond1t1on and the burdens created by the development. The Un1ted States Supreme Court d1d not accept th1S argument. Nor did the Court address the 1ssue of whether thg ~xact1on was d1sproport1onate to the benef1ts conferred.-ZI Slnce Assoc1ated Homebu1lders v. Walnut Creek,68/ Cal1forn1a courts have held that only an indirect nexus 1S requ1red. The Coastal Commlsslon cases p;gqr to Nollan have all rel1ed on thlS "lndlrect nexus" test.-I Although the Court characterlzed the Callforn1a rule as the mlnor1ty pos1tlon, lt d1d not accept the pla1ntlff's proffered dlrect nexus test. Instead the ma)Or1ty used the terms "substantlally advanc1ng a leg1tlmate s18te lnterest" and "serves the same governmental purpose."_1 The ma)Or1ty also recogn1zed that the cumulat1ve 1mpacts of slm1lar developments could 9I/a leg1tlmate government bas1s for 1mpos1ng exact10ns._ Just1ce Brennan, dlssent1ng, lnterpreted the standard artlculated by the ma]Or1ty to be the fam1l1ar rule that there must be a "reasonable relatlonshlp" between the lmpacts of the development and the condit1on 1mposed. After the Supreme Court's decis10n in Nollan, 1t 1S somewhat uncertaln precisely what sort of nexus will pass constltutional muster. As a pract1cal matter, th1S 1S gen- erally not a problem because statutes such as Government Code Sect10n 65959 requlre a close nexus for monetary exac- t10ns lmposed as condltlons of development approval. Exac- t10ns lmposed under the Subd1vis10n Map Act also requ1re a fa1rly close nexus. More exotlC condlt10ns are generally only 1mposed on larger developments as a result of negot1a- t10ns. CONCLUSION '\ ~ Although the Unlted States Supreme Court has held that compensat1on may be requlred for a regulatory tak1ng 1n certaln clrcumstances, the lower federal courts and the Cal1fornla courts have seldom found that a local land use regulat10n on 1tS face or as applied const1tutes a tak1ng, and to date no appellate court has awarded compensat10n for over-regulation of land. It 1S 1mportant to remember that government has a duty to govern especlally 1n tlmes such as these where development pressure~ threaten lrrevers1ble harm. :: i> 1'1 ~ FOOTNOTES 1. 482 U.S. , 107 S.Ct. , 96 L.Ed.2d 250 (1987). 2. Los Angeles T~mes, June 11, 1987, Part II, p. 4. 3. The Los Angeles Herald Exam~ner op~ned that "The effect of the rul~ng could be far reach~ng. Off1c1als who prev~ously would have taken the broad publ1C ~nterest ~nto account 1n enact1ng new regulat~ons m~ght now back off for fear of be~ng sued by landowners. Zon~ng, health and safety regulat~ons and other rules curb1ng the use of property for publ~c ~nterest are essent~al ~n modern soc~ety. Unt~l the court puts some sharper boundar~es on ~ts dec~s~on, necessary controls may be put on hold." (Repr~nted ~n the Los Angeles Da~ly Journal, June 22, 1987, Part I, p. 4, col. 1.) 4. 483 U.S. , 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). 5. Da~ly Journal, September 28, 1987, p. 4. 6. Los Angeles T~mes, September 15, 1987, Part II, p. 4. 7. Cal~forn~a Real Property Journal, Vol. 5, No.2, p. 7. 8. Id. at p. 1. 9. 480 U.S. ____, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). 10. 260 U.S. 393, 415 (1922), 43 S.Ct. 158, 67 L.Ed.2d 322. 11. See,~, Eucl~d v. Ambler Realty Co., 272 U.S. 365 (1926), 47 S.Ct. 114, 71 L.Ed.2d 303. 12. Re~nman v. L1ttle Rock, 237 U.S. 171 (1915), 35 S.Ct. 582, 59 L.Ed.2d 969. 13. Zahn v. Board of Publ~c Works, 274 U.S. 325 (1927), 47 S.Ct. 594. 14. 447 U.S. 255 (1980), 100 S.Ct. 2138. 15. Goldblatt v. Hempstead, 369 U.S. 590 (1962), 82 S.Ct. 987. - .. "', I".. ......,., .... "'-- ~""r~" .u.;~_ "\............. "'-r.-~..-,=~...... ., ~ t" "," ',,, ,.....,'~ ',;r-.'f "-.':!'f!.~.,; ~~}.:J'~~lr:~~~7'F".'~~~""':,;.o""'~~tf"'~.:!I""~'~" I~ w "\.~r." i't f' .... , : .~.. t' , r "~J .~ : r!'<'.... ~. 16. Miller v. Schoene, 276 u.S. 272 (1928), 48 S.Ct. 246. 17. U.S. Const. amend. V (". . . nor shall pr1vate property be taken for publ1C use, w1thout Just compensat1on"). 18. 24 Cal.3d 266, 275 (1979). 19. 450 U.S. 621 (1981), 101 S.Ct. 1287. 20. Id. at 661, n. 26. 21. An even earl1er 1nd1cat1on from the Court that damages m1ght be ava1lable 1n regulatory tak1ng cases 1S d1cta from Goldblatt v. Hempstead, 369 U.S. 590 (1962), 82 S.Ct. 987, where the Court stated that governmental act10n 1n the form of regulat10n may "be so onerous as to const1tute a tak1ng Wh1Ch const1tut1onally requ1res compensat1on." Id. at 594. 22. F1rst EnglIsh Church, 96 L.Ed.2d at 262 (because the case went up to the Supreme Court on a motIon to strIke certa1n allegat10ns from the complaInt, the facts were never cons1dered by either the tr1al court or the appellate court). 23. Id. at 270. 24. 447 U.S. 255, 263 n.9 25. 96 L.Ed.2d at 268. 26. 447 U.S. 255, 100 S. Ct. 2138. 27. 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986). 28. 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). 29. 450 U.S. 621 (1981), 101 S.Ct. 1287. 30. Williamson Co. v. Ham1lton Bank, 87 L.Ed.2d at 138. 3l. First EnglIsh Church, 107 S.Ct. , 96 L.Ed.2d 262. 32. Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987. 33. Hadacheck v. Sebast1an, 239 U.S. 394 (1915), 36 S.Ct. - 143. /. ... II, i! 34. Mugler Kansas, 123 U.S. 623 (1887), 8 S. Ct. 273. II 0< v. II J . 35. Flrst Engllsh Church, 107 S.Ct. , 96 L.Ed.2d 261. 36. 272 U.S. 365 (1926), 47 S.Ct. 114. 37. Nollan, 97 L.Ed.2d 689. 38. Id. 39. Keystone Coal, 94 L.Ed.2d at 481. 40. 260 U.S. 393 (1922), 43 S.Ct. 158. 41. Keystone Coal, 94 L.Ed.2d at 498. 42. Nollan, 97 L.Ed.2d at 687-688. 43. Aglns v. Tlburon, 447 U.S. 255, 100 S.Ct. 2138. 44. Penn Central Transportatlon Co. v. Clty of New York, 438 U.S. 104 (1978), 98 S.Ct. 2646. 45. Euclld v. Ambler, 272 U.S. 365, 47 S.Ct. 114. 46. Penn Central, 438 U.S. 104, 98 S.Ct. 2646. 47. 447 U.S. 74, 82-83 (1980). 48. Nollan, 97 L.Ed.2d at 687. 49. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), 102 S.Ct. 3164. 50. Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987. 51. Mlller v. Schoene, 276 U.S. 272, 48 S.Ct. 246. 52. Penn Central, 438 U.S. 104, 98 S.Ct. 2646. 53. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). 54. Inc. v. South Coast 785 (1976). 55. Id. 56. Oceanlc Californla, Inc. v. North Central Coast Regional Comm'n, 63 Cal.App.3d 57 (1976). ~ ~> U . ., . '.. .... n r'i,"'J"," " !"\UIIII"~";l>';lfw>~' '1""'\'" "'~.",">~,""'~".1" . ~'., . . '. ' . . : . I~~ y. _,. t ,. : ,I . ..; ,':, \ ' : . . \ I .~ J't ......, ,01. . , "It . , , . 57. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986). 58. Gov't Code S 65866. 59. Gov't Code S 66498.1 et ~. 60. Gov't Code S 65956. 6l. Flrst EnglIsh Church, 107 S.Ct. , 96 L.Ed.2d at 268. 62. 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). 63. WIllIamson County RegIonal PlannIng Commlsslon v. Hamllton Bank, 473 U.S. 172 (1985), 105 S.Ct. 3108. 64. 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986). 65. FIrst EnglIsh Church, 107 S.Ct. 66. Nollan, 97 L.Ed.2d at 689. , 96 L.Ed.2d at 267. 67. rd. at 684. 68. 4 Cal.3d 633 (1971). 69. See,~, Grupe v. CalIfornIa Coastal Comm'n, 166 Ca1.App.3d 148 (1985). 70. No11an, 97 L.Ed.2d at 687. 71. rd. ;- t ;;r j;; l~ \ .l" fJ 1 t' , r> I , ~ 'I E. WHEN HAS REGULATORY ACTION GONE TOO FAR: WHAT IS A TAKING? 1\ ~ .~ { ;1. The Test ti . ;( A land use regulat10n lS not a tak1ng 1f: ,,\ 1. The regulat10n substant1ally advances a leg1t1mate governmental 1nterest; . .. 1 1 and . . 1 2. The regulat10n does not deny cla1mant econom1cally v1able use of h1S land. ... .; (Nollan v. Cal1forn1a Coastal Comm1ss1on, 483 U.S. , 97 L.Ed.2d 677, ___ S.Ct. ___(1987); Keystone B1tum1nous Coal Assn. v. DeBened1ct1s, 480 U.S. , 94 L.Ed.2d 472, 488 (1987);-Ag1ns v. T1buron, 447 U.S. 255, 260 (1980).) ~ '"" ... ~ t .,. , Analys1s 1. Does the regulat10n substantially advance a leg1t1mate governmental 1nterest? (a) What lS the 1dent1f1ed governmental 1nterest beh1nd the regulat1on? ~ i>' (b) How 1mportant lS the 1dent1f1ed state 1nterest: Is 1t health and safety related, or Just related to the general welfare? For perm1ts, lS the 1dent1f1ed governmental purpose suff1c1ent to ]ust1fy den1al of the appl1cat1on? , ri (c) Does the proJect or the act1v1ty sought to be regulated 1mpose a burden on the 1dent1f1ed governmental 1nterest? '" ~ . (1) D1rect (11) Ind1rect/cumulat1ve co. 1, ~ '" 00( .~ ?= 1, .. (d) Does the regulat10n allev1ate the burden 1mposed on the ident1f1ed state 1nterest? ~ ~ t (e) To what extent does the regulatlon slngle out the proJect to bear a dlsproportlonate share of the burden? 2. Does the regulatlon deny clalmant economlcally vlable use of hlS land? Looklng at the speclflc facts on a case by case basls, conslder the followlng factors: (a) EconomlC lmpact of the regulatlon Bundle of stlcks remalnlng Parcel as a whole (b) Interference wlth reasonable lnvestment-backed expectatlons - No reasonable expectation of a zonlng classlflcatlon unless a vested rlght. (c) Character of the governmental action. ~ t