Subdivision Proposal Inconsistent With General Plan and Zoning Ordinances

In Toigo v. Town of Ross (1998), the plaintiff landowner twice proposed the subdivision of her property and twice her proposals were rejected by the local town council. On both occasions the town council found that the proposals were inconsistent with the town's general plan and zoning ordinances. In finding that, notwithstanding the two attempts over four years to develop the property, a further application to the city for a development permit was required before the plaintiff could pursue a regulatory takings claim, the court stated: "The problem in this case lies, as previously stated, in the fact that plaintiff has not explored a reduction in size, scope, or intensity of the proposed development. Therefore, the inference that is sought to be raised from Toigo's showing on summary judgment -- that the Town has applied the land use criteria it administers to the particular land in question in such a draconian fashion that reapplication for a modified plan would be futile -- derives from nothing more than 'speculation, conjecture, imagination or guess work,' and is insufficient to raise a triable issue of fact. In this connection, the United States Supreme Court has observed that 'rejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.' Therefore, Toigo's takings claim will not be ripe 'until it is in a position to allege not only that its initial permit applications were denied, but also that it has made some effort to pursue compromise with the Town that would allow some level of development." ( Toigo, supra, 70 Cal. App. 4th at p. 330.) In reaching this conclusion, the court added that "we need not determine at which point reapplications for development will become futile. Under pertinent authority, we are not required to engage in 'the virtual impossibility of determining what development will be permitted on a particular lot of land when its use is subject to the decision of a regulatory body invested with great discretion, which it has not yet even been asked to exercise." ( Id. at pp. 331-332.) The court in Toigo relied upon, among other authorities, the holding in Milagra where the landowners proposed a residential development which required an amendment to the existing general plan. Although the city council approved the proposed project and the general plan amendment, in a subsequent city referendum, the amendment was rejected by voters. The court found the failure of the city to adopt the plan amendment and approve the otherwise nonconforming plan did not create a ripe takings claim. ( Milagra, supra, 62 Cal. App. 4th at p. 118.) "All counties and cities in California are required to 'adopt a comprehensive, long-term general plan for the physical development of the county or city . . . .'The general plan is atop the hierarchy of local government law regulating land use. It has been aptly analogized to a "constitution for all future developments." A general plan amendment alters the course of the region's future development. By contrast, a variance is an administrative or quasi-judicial act permitting minor deviations from existing land use regulations so that the landowner does not suffer undue hardship, but which does not violate the overall established land use regulatory scheme. We interpret Williamson to mean that finality for purposes of a taking claim is determined by the denial of a requested deviation from the present land use scheme, not the rejection of an attempt to alter a comprehensive, long-range development scheme for the entire community." ( Milagra, supra, 62 Cal. App. 4th at pp. 118-119.) Even when a final definitive decision has been made by a local agency, a landowner may not then immediately sue for damages. Rather, the landowner must obtain a judicial determination that the local agency's action amounted to a taking. ( Hensler v. City of Glendale (1994) 8 Cal. 4th 1, 14-15 32 Cal. Rptr. 2d 244, 876 P.2d 1043 (Hensler); see also Healing v. California Coastal Com. (1994) 22 Cal. App. 4th 1158, 1174 27 Cal. Rptr. 2d 758.) In Hensler a landowner sought a permit to develop a large tract of homes. Consistent with an ordinance preventing development along hillside ridge lines, the city approved the project but prohibited the landowner from using or encroaching upon the major ridge which existed on his property. Three years after obtaining approval for the project the landowner sued the city, alleging the restriction on ridge line development amounted to a taking of his property. The court held the landowner should have challenged application of the ridge line ordinance to his property by way of a timely petition for administrative mandamus ( Code Civ. Proc., 1094.5) and that his failure to do so barred his inverse condemnation action. ( Hensler, supra, 8 Cal. 4th at pp. 27-28.) " 'The requirement that challenges to administrative actions constituting takings be brought initially by administrative mandamus assures that the administrative agency will have the alternative of changing a decision for which compensation might be required. If no such early opportunity were given, and instead, persons were permitted to stand by in the face of administrative actions alleged to be injurious or confiscatory, and three or five years later, claim monetary compensation on the theory that the administrative action resulted in a taking for public use, meaningful governmental fiscal planning would become impossible.' " (Ibid.)