Liability for Delay In Processing Parcel Development Proposal

Takings jurisprudence not only requires a final determination as to the permissible level of development for a particular parcel, but also largely relieves regulatory agencies of liability for delays which may occur while such a determination is being reached. See Landgate, Inc. v. California Coastal Com. (1998) 17 Cal. 4th 1006, 1030 [73 Cal. Rptr. 2d 841, 953 P.2d 1188] (Landgate); Kawaoka v. City of Arroyo Grande (9th Cir. 1994) 17 F.3d 1227, 1233; Guinnane v. City and County of San Francisco (1987) 197 Cal. App. 3d 862, 865, 869-870 [241 Cal. Rptr. 787].) Liability for delay in processing a development proposal may only be imposed when it goes "beyond that to be expected as part of the normal permit process." (Hensler, supra, 8 Cal. 4th at p. 15.) The normal permit process includes the period in which a property owner must litigate with an agency "over other threshold questions that must be resolved before it can be determined whether a development should be permitted to proceed." (Landgate, supra, 17 Cal. 4th at p. 1030.) The Supreme Court has recognized that resolution of such threshold questions "often turns on the construction and application of complex statutory schemes and results in significant delays in the development process." (Ibid.) Notwithstanding the lengthy interval which may pass while such issues are resolved by way of litigation, the interval is not compensable because " 'the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking' " ( Id. at p. 1027.) Rather, "a judicial determination of the validity of certain preconditions to development is a normal part of the development process, and the fact that a developer must resort to such a determination does not constitute a per se temporary taking." ( Id. at p. 1030.) "Of course . . . a governmental agency may not evade the takings clause by fabricating a dispute over the legality of a lot, or by otherwise arbitrarily imposing conditions on development in order to delay or discourage that development. The government agency's assertion of authority, whether or not erroneous, must advance some legitimate government purpose." (Landgate, supra, 17 Cal. 4th at p. 1029.)