Court of Appeal affirms rare taking due to spot zoning

Avenida San Juan Partnership v. City of San Clemente

201 Cal.App.4th 1256 (2011)

(4th Dist., Div. 3)

December 14, 2011

The plaintiff acquired 2.85 acres of undeveloped land in 1980, which allowed six dwellings per acre at the time. After a landslide occurred nearby in 1983, opposition developed to further development, and a petition was submitted to the City asking that the plaintiff’s property become open space. At the time, the City Attorney gave his opinion that would be a compensable taking. The City of San Clemente amended its General Plan in 1993 and imposed “residential, very low” (RVL) (1 dwelling per 20 acres) for that property, even though surrounding residential property was “residential, low” (RL) (4 per 1 acre).  The City formally rezoned the property RVL in 1996.

Ten years later, plaintiff submitted development plans for four dwellings, which was rejected. Plaintiff sued, claiming the City had done an illegal spot zoning. The trial court agreed as well as found the City had given inadequate notice of the change in zoning and that the changes were arbitrary and capricious. The court gave the City the option to vacate the zoning or pay damages of $1.3 million.

The Court of Appeal examined the takings law under the federal Constitution (Penn Central factors) and affirmed except as to the damages, which it remanded to the trial court for further consideration. The Court found the regulation had gone too far as applied to this property. The economic restrictions were dramatic, plaintiff’s investment-backed expectations were undermined, and the City’s real desire appeared to be to keep the parcel as an open space.

This case represents an extremely rare outcome. If there is any possible use of the property, even if a very poor one by comparison to the owner’s hopes, then there usually is no taking found. Undoubtedly, the cause of the anomaly was the clear, discriminatory spot zoning, in which plaintiff was treated differently, and for no apparent reason, from the surrounding properties.

Prepared by John Reaves


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