In County of Alameda v. Superior Court, 133 Cal. App. 4th 558 (2005), the California Court of Appeal, First District, ruled that a developer seeking to bring an inverse condemnation action may not invoke the futility exception to the ripeness doctrine until the developer has submitted a development proposal to land use authorities and had it denied.
In November 2000, voters in the County of Alameda approved Measure D, an initiative that modified the County’s general plan to preserve more agricultural and open space. San Leandro Rock Company owned two parcels of property in the County. Measure D changed the designation of San Leandro’s property from an agricultural area to a “resource management” area, which permitted a number of the same uses allowed under the prior zoning, but only permitted very low density residential development. Local authorities were not permitted to exercise discretion to vary the permitted uses. Any changes to Measure D required the approval of the voters.
San Leandro filed an inverse condemnation action in the Superior Court of Alameda County, claiming that Measure D deprived San Leandro of all economically viable uses of its property. The County filed a motion for summary judgment, arguing that San Leandro’s claim was not ripe because the property owner had never submitted a development proposal to the County. San Leandro responded that Measure D clearly delineated the permissible uses of San Leandro’s property and that none of the permissible uses were economically viable. Since Measure D did not allow local officials to exercise discretion to vary the permitted uses, San Leandro argued that it was futile to submit a development application. The Superior Court denied the County’s motion for summary judgment, citing the futility exception to the ripeness doctrine.
The Court of Appeal disagreed, ruling that San Leandro’s claim was not ripe, that the futility exception did not apply, and that the County’s motion for summary judgment must be granted. Noting that courts cannot accurately determine the impact of a particular regulation on a proposed development until local land use officials have had an opportunity to interpret and apply the regulation, the Court applied the general rule that before an inverse condemnation action is ripe, “a landowner must have made at least one development proposal that has been thoroughly rejected by land use authorities and have prosecuted at least one meaningful application for a zoning variance which has been finally denied.”
The Court of Appeal emphasized that futility cannot be established by the testimony of expert witnesses that there is no economically feasible use of the property under applicable zoning regulations. The Court noted that although Measure D restricted permissible uses of San Leandro’s property, certain general categories were permitted and that it was possible that the County’s application of Measure D would allow an economically beneficial use. As such, the Court concluded that resort to administrative procedures was not futile and that it was not sufficient for San Leandro to demonstrate that the local officials probably would not approve its proposed development. In order to demonstrate futility, a developer must make a development proposal and have it rejected.
For more information please contact Donna Jones and Michael Wilmar. Donna Jones is a partner in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Diego office. She graduated with a B.A. in Journalism, with honors, from Texas A&M University in 1981. She graduated with a J.D. from the University of Texas, with high honors, as a member of Order of the Coif and as Grand Chancellor, in 1990. She has spent her legal career specializing in land use in San Diego. Michael Wilmar is special counsel in the Real Estate, Land Use and Natural Resources Practice Group in the firm’s San Francisco office.