GRIFFIN HOMES INC v. CITY OF SIMI VALLEY

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Court of Appeal, Second District, Division 6, California.

 GRIFFIN HOMES, INC., etc., Petitioner, v. SUPERIOR COURT of the State of California, County of Ventura, Respondent. CITY OF SIMI VALLEY, etc., et al., Real Parties in Interest.

Civ. Nos. B047708, B049139.

Decided: April 30, 1991

 Fadem, Berger & Norton and Michael M. Berger and Marlena J. Mouser, Los Angeles, for petitioner. No appearance for respondent. John Torrance, City Atty., Marjorie Baxter, Asst. City Atty., Freilich, Stone, Leitner & Carlisle and Katherine E. Stone, for real parties in interest City of Simi Valley and Rancho Simi Open Space Conservancy Agency.  John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Richard M. Frank and Theodora Berger, Asst. Attys. Gen., Nancy K. Chiu and Gail Ruderman Feuer, Deputy Attys. Gen., as amici curiae on behalf of real parties in interest City of Simi Valley and Rancho Simi Open Space Conservancy Agency. John K. Van de Kamp, Atty. Gen., Richard M. Frank, Acting Asst. Atty. Gen., Nancy K. Chiu, Deputy Atty. Gen., for real party in interest Santa Monica Mountains Conservancy. Morrison & Foerster and Robin M. Shapiro and John P. Lodise, Los Angeles, for real party in interest Ahmanson Developments, Inc. Harold E. Geer, in pro. per. Gordon R. Lindeen, Simi Valley, for real party in interest Rancho Simi Parks & Recreation. Berne Rolston, Santa Monica, for real party in interest Paragon Homes, Inc.

Here a developer has filed an action against a city alleging that the city's slow-growth ordinance interferes with the developer's property rights.

We hold that the developer has failed to state a cause of action for violation of the Federal Civil Rights Act (42 U.S.C. § 1983), and that traditional mandamus is not available to attack the validity of an adverse administrative decision denying the issuance of building allocations to the developer.   We hold also that the developer has not stated a cause of action for inverse condemnation.   We therefore affirm the trial court and deny the developer's petitions for writ of mandate.

BACKGROUND

Griffin Homes, Inc., a California corporation, (Griffin) owns two large parcels of land located in the City of Simi Valley (City).   It seeks to build 187 houses on a parcel known as Greenbriar and 217 houses on a parcel known as Hopetown.   Griffin expects to complete its development in 1992.

On July 21, 1986, City enacted a “growth control” ordinance which limits the number of building permits for residential units that City may issue during a given year.   Under this ordinance, as amended in 1988, City Council evaluates competing projects and awards points based upon its consideration of nine primary criteria and fifteen secondary criteria.   Some of the criteria are:  affordability, low-density, preservation of natural terrain, provision of open space, proximity of the project to public transportation and shopping centers, mitigation of traffic problems, and construction of infrastructure.   The projects are then placed in a queue that is based upon their ranking under a point system.   Only those projects placed into the queue are eligible for building permits.

On October 13, 1986, City approved a tentative map and zone change for Greenbriar.   On December 24, 1987, Griffin applied for an allocation grant to build 63 units on phase 1 of Greenbriar.   On April 25, 1988, Griffin was  ranked by City as first in the queue and, consequently, received City's authorization to build 63 units on Greenbriar.   Griffin contends that it was required to build $2,840,481 worth of roads, sewers, and flood control improvements that were largely beyond the infrastructure needs generated by Greenbriar.   Griffin alleges that it spent more than $1 million for costs relating to the project's infrastructure.   Griffin claims that its best laid plans went awry because City, following the award of the allocations to build 63 units, denied its application to complete Greenbriar and did not place Griffin in the queue.

On February 22, 1988, a tentative subdivision map was approved for the Hopetown project.   Griffin claims to have agreed to spend $2,500,000 for certain off-site road widening and drainage projects that have little to do with the Hopetown project.   On March 28, 1988, Griffin deeded 188 acres of its Hopetown property to the Rancho Simi Open Space Conservancy Agency, a joint powers agency formed by City and the Rancho Simi Recreation and Park District.   In exchange, Griffin received $1 million in cash, as well as various fee waivers and sundry considerations.   Griffin contends that among such considerations is a grant from the City giving it the right to build all of its Hopetown project within a four-year period.   On May 17, 1988, Griffin applied to build 217 units on Hopetown.   However, City has, thus far, refused Griffin any allocation grants on Hopetown.

Griffin appears to have protested both City's refusal to allow for the prompt construction of additional units upon Greenbriar, as well as City's refusal to allow for immediate development of Hopetown.   On January 23, 1989, the City Council held a public hearing for the purpose of determining which of 11 residential projects to place in the queue.   Based upon rankings made by City Council, neither of Griffin's projects was placed in the queue.   On January 30, 1989, City Council adopted a resolution that placed the projects of two competing builders in the queue.

On July 28, 1989, Griffin filed a petition seeking a writ of mandate to compel City to comply with the slow-growth ordinance, as well as an action for declaratory relief, inverse condemnation, specific performance, and damages for violation of its civil rights.   In the complaint, Griffin alleges that, having been placed in the queue, it was entitled under the terms of the ordinance to remain in the queue until the completion of its Greenbriar project.   Griffin also asserts that, in reliance upon City's assurances that 217 homes could be built upon the parcel, it purchased and improved the Hopetown parcel, as well as committed itself to build the necessary infrastructure upon the parcel and also donated the land for a park.

City filed a demurrer.   On January 18, 1990, respondent superior court sustained portions of the demurrer without leave to amend.   The court  found that although Griffin had labeled two of its causes of action as being for traditional mandamus, such causes were in fact for administrative mandamus and, as such, were barred by the statute of limitations.  (Code Civ.Proc., § 1094.5.)   The court also ruled that Griffin had no federal civil right remedy because it had not alleged the deprivation of a federally protected right.   Demurrers to the remaining causes of action were sustained, but with leave to amend.

Griffin sought relief by way of extraordinary writ.   This court granted an alternative writ relating to the January 18 ruling.

On February 20, 1990, Griffin filed an amended complaint.   Included in the amended complaint were causes of action for declaratory relief, specific performance, rescission, and inverse condemnation.   City demurred to these causes of action.

On March 22, 1990, respondent court sustained, without leave to amend, City's demurrer to the inverse condemnation cause of action.   The trial court was of the view that Griffin had failed to allege facts sufficient to show there to be no economically viable use of the land;  further, it held that City's granting to petitioner the right to build houses on 63 of the 187 lots on one of the two parcels sufficed to constitute an economically viable use of Griffin's property.

The trial court overruled the demurrer as to the causes of action for declaratory relief, specific performance, and rescission.   The court noted that it had previously overruled the same demurrer upon the ground that the ordinances were designed to manage growth, and were not zoning ordinances within the meaning of Government Code section 65009, subdivision (c).   It also held that the procedures set forth in Government Code section 65864 et seq. are not the exclusive method for local agencies to enter into development agreements and that the question of the existence of a contract was, therefore, one of fact.

Neither side was entirely pleased with the ruling of the trial court.   The parties sought review by way of petitions for extraordinary relief.   We denied the petition filed by City and Rancho Simi Open Space Conservancy Agency, but issued an alternative writ of mandate on Griffin's petition.   (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273, 258 Cal.Rptr. 66.)

On October 29, 1990, this court filed its opinion.   City, however, pointed to some errors in this first opinion, and we have threfore granted a rehearing.

 DISCUSSION

A. An Observation

 Perhaps due to a perceived uncertainty or confusion in the law, complaints seeking relief in inverse condemnation and related causes of action often suffer from a profusion of facts.   They are so fact specific that they read more like declarations in support of a motion for summary judgment than like a traditional complaint.   This case is no exception.

While working our way through Griffin's 66–page complaint, we thought nostalgically of Code of Civil Procedure section 425.10 which states that “[a] complaint ․ shall contain ․ the following:  [¶] (a) A statement of the facts constituting the cause of action, in ordinary and concise language․”  Long ago, Justice Field lamented:  “[I]n numerous instances before us, pleadings [are] filled with recitals, digressions and stories, which only tend to prolixity and obscurity.”  (Green v. Palmer (1860) 15 Cal. 411, 414.)

Despite our sympathy with counsel's dilemma, we are not prepared to say that complaints for inverse condemnation are exempt from Code of Civil Procedure section 425.10.   Brevity is the soul of a well-pled complaint.   Providing too many details obscures rather than enlightens.   Our vacated opinion proves this point.   We look hopefully to the future.   Perhaps it will bring us a coherent body of inverse condemnation law.   On the other hand, the future may bring only further confusion:  “no unified dream but a mince pie, long in the baking, never quite done.”  (E.B. White, One Man's Meat (1944).)

B. Civil Rights Action

 We must decide whether Griffin has sufficiently alleged that the City, in implementing its slow-growth ordinance, has deprived it of rights secured by the Constitution or by laws of the United States and the State of California.   We are guided by the rule that the demurrer admits all material facts that are properly pled.  (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 492 P.2d 1137.)

Griffin charges that the trial court took too narrow a view of the law relating to federal civil rights actions.   It asserts that the superior court was operating under the mistaken impression that such actions under 42 United States Code section 1983 are limited to issues of racial discrimination in the absence of an adequate state remedy.

 “Section 1983 provides a remedy for individuals alleging deprivations of their constitutional rights by action taken ‘under color of state law.’ ”  (Lake  Country Estates v. Tahoe Planning Agcy. (1979) 440 U.S. 391, 399, 99 S.Ct. 1171, 1176, 59 L.Ed.2d 401.)   An action under section 1983 exists independently of any state remedy and is not limited to incidents of racial discrimination.  (Zinermon v. Burch (1990) 494 U.S. 113, –––, 110 S.Ct. 975, 982, 108 L.Ed.2d 100, 113;  Felder v. Casey (1988) 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123;  Ellis v. Dyson (1975) 421 U.S. 426, 432–433, 95 S.Ct. 1691, 1694–1695, 44 L.Ed.2d 274;  Williams v. Horvath (1976) 16 Cal.3d 834, 841, 129 Cal.Rptr. 453, 548 P.2d 1125.)   Nor is it necessary for one to exhaust state remedies prior to seeking relief under section 1983.  (Rutherford v. City of Berkeley (9th Cir.1986) 780 F.2d 1444, 1447.)

 A civil rights action is generally unavailable to review garden-variety zoning disputes;  nonetheless, such an action may lie where a municipality's refusal to grant a building permit deprives a developer of some federal statutory or constitutional right.  (See, e.g., Bateson v. Geisse (9th Cir.1988) 857 F.2d 1300, 1303;  but cf. Creative Environments, Inc. v. Estabrook (1st Cir.1982) 680 F.2d 822, 833;  Chongris v. Board of Appeals of Town of Andover (1st Cir.1987) 811 F.2d 36, 46.)

 The parties do not quarrel with the general proposition that arbitrary and unreasonable governmental interference with vested property rights will give rise to a civil rights cause of action.  (See, e.g., Agins v. Tiburon (1980) 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106;  Littlefield v. City of Afton (8th Cir.1986) 785 F.2d 596, 604–607.)   The federal constitution recognizes that a property owner has the right to the economically viable use of his or her land and the right not to have that land taken by the government without due process of law and payment of just compensation.  (Agins, supra, 447 U.S. at p. 260, 100 S.Ct. at p. 2141.)

On occasion, a governmental entity may, by acting under the guise of some otherwise reasonable measure, be instead attempting to exact either illegal concessions from the builder, or zone the builder's property into inutility.   (See, e.g., First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250;  Nollan v. California Coastal Comm'n (1987) 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677;  Lockary v. Kayfetz (9th Cir.1990) 908 F.2d 543;  Sinaloa Lake Owners Ass'n v. City of Simi Valley (9th Cir.1989) 882 F.2d 1398, 1409;  see also Frieden:  The Environmental Protection Hustle (MIT Press 1979).)   If proven, such conduct by government constitutes an incursion into a landowner's rights of such magnitude as to deny the “ ‘justice and fairness' guaranteed by the Fifth and Fourteenth Amendments.”  (Agins v. Tiburon, supra, 447 U.S. at pp. 262–263, 100 S.Ct. at pp. 2142–2143.)

 One's right to engage in a trade may not be predicated upon the relinquishment of constitutional rights.  (See, e.g., Cunningham v. Superior  Court (1986) 177 Cal.App.3d 336, 347, 222 Cal.Rptr. 854;  Whaler's Village Club v. California Coastal Com. (1985) 173 Cal.App.3d 240, 259, 220 Cal.Rptr. 2.)   The arbitrary and irrational interference by government with property rights violates a person's right to substantive due process.   (Usery v. Turner Elkhorn Mining Co. (1976) 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752.)

 Thus, an illegal exaction of property occurs where the government requires that, as condition for the issuance of building permits, a builder dedicate property for public use where such use bears no relationship to the benefit conferred.  (E.g., Associated Home Builders Etc., Inc. v. City of Walnut Creek (1971) 4 Cal.3d 633, 641, 94 Cal.Rptr. 630, 484 P.2d 606;  Grupe v. California Coastal Com. (1985) 166 Cal.App.3d 148, 165, 212 Cal.Rptr. 578;  Remmenga v. California Coastal Com. (1985) 163 Cal.App.3d 623, 627, 209 Cal.Rptr. 628.)  “Where the conditions imposed are not reasonably related to the landowner's proposed use but are imposed by a public entity to shift the burden of providing the cost of a public benefit to one not responsible for or only remotely or speculatively benefiting from it, there is an unreasonable exercise of police power.”  (Whaler's Village Club v. California Coastal Com., supra, 173 Cal.App.3d at p. 259, 220 Cal.Rptr. 2.)

The complaint alleges that City was manipulating its authority to grant building permits in order to exert leverage on Griffin to build improvements;  further, that such improvements bore little or no relationship to the subject projects.   Griffin alleges that, in reasonable reliance upon City's inducements, it spent considerable sums to construct infrastructures upon all of its parcels, to completely grade the entire 47.5–acre Greenbriar site, and to install $2,840,481 worth of infrastructure that is unrelated to the 63 homes it was subsequently allowed to build.   Griffin contends that it built these improvements in reasonable reliance upon City's promise to allow the prompt building of the Greenbriar project.   The net result of this series of events, according to Griffin, is that it presently has 63 houses sitting in the middle of a completely graded 47.5–acre site.

Griffin claims that, as a distinct wrong, it has been prevented from making any economic use of the Hopetown parcel.   It alleges that Hopetown lies vacant and unused.   Griffin avers to have transferred 188 acres of Hopetown land to City's open space agency for one-third of its market value, and to have dedicated a 13–acre local park, as well as to have committed itself to spend $2,500,000 for infrastructure that is largely a benefit to the region rather than to the specific project.   Griffin alleges that its actions were undertaken with the understanding that City would allow full development of Hopetown over a four- to five-year period.

  Griffin's claims of illegal exactions falls within two classes.   The first consists of those exactions, generally built outside of the project area, that went beyond the infrastructure needs (e.g., the widening of existing streets and the construction of off-site storm drains).   The second category is composed of project improvements that, due to City's alleged refusal to grant all of the permits, are beyond the needs of the houses that are built on the site (e.g., the grading of vacant lots, streets, and sewers).

Even if true, the allegations comprising the first kind of illegal exaction are barred by the statute of limitations.   This breach of Griffin's rights occurred at the moment City imposed the illegal exaction.  (See Zinermon v. Burch, supra, 494 U.S. at p. –––, 110 S.Ct. at p. 982, 108 L.Ed.2d at p. 113.)  “A property owner has been denied substantive due process ․ the moment a governmental decision affecting his property has been made in an arbitrary and capricious manner, regardless of whether he is later compensated for that violation.”  (Greenbriar, Ltd. v. City of Alabaster (11th Cir.1989) 881 F.2d 1570, 1574, fn. 8;  see also Crow–New Jersey 32 Ltd. v. Township of Clinton (D.N.J.1989) 718 F.Supp. 378, 381–382.)

The first category of exactions, if proven to be illegal, would be violative of Griffin's rights at the time they were imposed.   They would be illegal regardless of whether City subsequently refused to issue allocations.   Griffin seemingly went along with these demands and did not cry “foul” until City refused to promptly issue all of the allocations.

 Absent a showing of estoppel, there is a time limit of one-year for the filing of a civil rights action arising out of a claim for an illegal exaction.  (Barancik v. County of Marin (9th Cir.1988) 872 F.2d 834, 836.)   Griffin's complaint was filed more than one year after the purported exactions were demanded by City.   As such, its claim of illegal exaction is barred by the statute of limitations.  (See also Rossco Holdings Inc. v. State of California (1989) 212 Cal.App.3d 642, 654, 260 Cal.Rptr. 736.)

Griffin also complains that it built on-site improvements that, due to City's parsimonious policy in issuing allocations, are presently oversized when viewed in relation to the number of houses built upon the site.   We find this claim of deprivation to be premature in that there is no allegation that City has adopted a permanent ban on development of the subject property.  (Williamson Planning Comm'n v. Hamilton Bank (1985) 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126.)

 For the sake of jurisdictional and practical considerations, it has been said that “[w]ise adjudication has its own time for ripening.”   (Maryland v. Baltimore Radio Show (1949) 338 U.S. 912, 918, 70 S.Ct.  252, 94 L.Ed. 562.)   Challenges to regulatory takings premised upon a claim of violation of the due process clause must first await a final determination by the appropriate governmental agency.  (Del Monte Dunes v. City of Monterey (9th Cir.1990) 920 F.2d 1496, 1500.)   The application of the ripeness doctrine avoids pell-mell judicial review of local land use decisions and affords local government the opportunity to address valid complaints posed by the developer.  (Hoehne v. County of San Benito (9th Cir.1989) 870 F.2d 529, 532.)

In Williamson Planning Comm'n v. Hamilton Bank, supra, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126, a developer's plans for using a parcel of land had been frustrated as a consequence of a change in zoning laws.   The developer, however, had not submitted plans to the local governmental entity that was responsible for enforcing the zoning law.   The Supreme Court ruled that the claim was not ripe for adjudication until “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.”   (Id., at p. 186, 105 S.Ct. at p. 3116.)

 The requirement of finality is not required where further participation in the administrative process by the builder would be an “ ‘idle and futile act.’ ”  (Martino v. Santa Clara Valley Water Dist. (9th Cir.1983) 703 F.2d 1141, 1146, fn. 2.)  “The landowner bears the burden of establishing, by more than mere allegations, the futility of pursuing any of the steps needed to obtain a final decision.”  (Del Monte Dunes v. City of Monterey, supra, 920 F.2d at p. 1501.)   Griffin attempts to plead around the ripeness obstruction by alleging that, as a consequence of City's actions, it will not receive any more allocation grants.   This conclusive statement, however, is belied by allegations contained in the amended complaint.   Griffin alleges it did not expect to complete the development until 1992.   There is no allegation that City has issued a final determination that would preclude the possibility of Griffin's completing its projects by that date.

 Griffin finally contends that because City's allocation procedures are arbitrarily enforced, it has been deprived of procedural and substantive rights under the due process clause.   As mentioned, City has not completed its allocation process.   As such, this claim is not ripe for adjudication.   We therefore conclude that the civil rights cause of action did not state sufficient allegations to have withstood an attack by way of demurrer.

c. Mandamus

Griffin seeks to establish, by way of petition for traditional mandamus, that City was refusing to follow its own ordinance.  (Code Civ.Proc.,  § 1085;  see, e.g., Great Western Sav. & Loan Assn. v. City of Los Angeles (1973) 31 Cal.App.3d 403, 413, 107 Cal.Rptr. 359;  Palmer v. Fox (1953) 118 Cal.App.2d 453, 258 P.2d 30.)   It argues that, under the terms of the ordinance, Griffin should maintain its position at the head of the line until all permits have been issued.   Griffin claims this is not a challenge to the merits of an administrative decision.   It asserts, rather, that City refuses to follow the ordinances that require Griffin to remain in the queue until the entire project is completed.

The complaint alleges that the City Council acted in an arbitrary and capricious manner when it conducted a public hearing on the allocation grants.   Griffin asserts that the allocation procedure was a sham because the City Council hearing included no analysis as to whether each project met the criteria.

It also avers that City Council members listed projects in the order of their personal preference and openly admitted that they were not sure what they had done or why they had done it.   Griffin also alleges that, after the public hearing, the City staff revised the ranking without disclosing the criteria used.   Griffin claims that the City officials' insouciance deprived it of fundamental constitutional rights.

In response, City points out that the determination of Griffin's entitlement to allocation grants was made at an administrative hearing, and its purported failure to follow its laws does not remove the action from the scope of administrative mandamus under Code of Civil Procedure section 1094.5.  (Cf. State of California v. Superior Court (1974) 12 Cal.3d 237, 115 Cal.Rptr. 497, 524 P.2d 1281.)   City contends that Griffin's “[i]nvocation of the words ‘mandatory duty’ or similar phraseology does not magically convert a Code of Civil Procedure § 1094.5 proceeding into a Code of Civil Procedure § 1085 proceeding.”   We agree.

“A traditional writ of mandate under section 1085 is a method of compelling the performance of a legal, usually ministerial duty, whereas the purpose of an administrative mandamus proceeding, under section 1094.5, is to review the final adjudicative action of an administrative body.”  (Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 808, 165 Cal.Rptr. 908.)

 Traditional mandate is available when public officers, boards, and agencies refuse to perform an act that the law requires them to perform.   For example, a lawsuit seeking to declare as invalid a rule that was illegally adopted by a municipality is the proper subject for review by way of traditional mandate.  (Vernon Fire Fighters v. City of Vernon, supra, 107  Cal.App.3d at p. 810, 165 Cal.Rptr. 908.)   By the same token, the actions of a governmental entity, arrived at outside of any formal decision-making process, may be questioned by the means of traditional mandamus.   (Phillips v. San Luis Obispo County Dept. Etc. Regulation (1986) 183 Cal.App.3d 372, 376, 228 Cal.Rptr. 101;  Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 219, 136 Cal.Rptr. 527.)

Review by way of administrative mandamus under Code of Civil Procedure section 1094.5 “is the exclusive remedy for judicial review of adjudicatory administrative actions of ․ local-level agencies․”  (Cal.Administrative Mandamus (Cont.Ed.Bar 1989) § 1.4, p. 5.)  “[T]he decision to grant or deny a development allotment application involves the basic elements of the adjudicatory process:  the application of established criteria to existing facts.”  (Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168, 176, 196 Cal.Rptr. 670.)

The gist of the petition for mandamus is that Griffin, having been placed in the queue to build a phase of Greenbriar, claims, under the terms of section 9–1.1804 of the ordinance, that “[s]uch a project shall not lose its place in the queue.”   From this, Griffin argues it was entitled to seek allocations so that it could build its entire Greenbriar project.   Griffin thus contends that the determination of its right to remain in the queue was purely ministerial, and no administrative hearing was required.  (See Langsam v. City of Sausalito (1987) 190 Cal.App.3d 871, 880, 235 Cal.Rptr. 672;  Court House Plaza Co. v. City of Palo Alto (1981) 117 Cal.App.3d 871, 883, 173 Cal.Rptr. 161.)

The ordinance in question allows a developer to apply for permission to build a portion of a project.  (Simi Valley Mun.Code, § 9–1.1805.)   There are tactical advantages in seeking permission to build but a portion of the project.   In this manner, a developer submits for review the most attractive portion of its project (e.g., affordable single family dwellings, mitigation of traffic problems, and low density).

At this point, we cannot say that, because City grants permission to build one phase of a project, the ordinance necessarily allows a developer to build the project in its entirety.   The obvious intent of section 9–1.1804 of the Simi Valley Municipal Code is to vouchsafe the right of a developer to build all allocations that have, thus far, been granted to it.  (Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 797, 132 Cal.Rptr. 386, 553 P.2d 546.)   Griffin's proposed interpretation of section 9–1.1804 would lead to unfair results.   For example, a developer could apply for a portion of its project that would be likely to obtain a high ranking, and then parlay such an allocation into the right to build the entire project  notwithstanding that remaining portions of the project may have undesirable features (e.g., high cost and lack of open space) not comprised by the initial phase.

 The allocation process is adjudicative in nature as it involves City Council's ranking of competing projects based upon consideration of a variety of factors.   At a City Council meeting of January 23, 1989, the City considered and rejected Griffin's application to obtain further allocations for Greenbriar.   Under such circumstances, administrative mandate is the proper vehicle to obtain review of City's refusal to issue permits.  (State of California v. Superior Court, supra, 12 Cal.3d at p. 248, 115 Cal.Rptr. 497, 524 P.2d 1281;  Pacifica Corp. v. City of Camarillo, supra, 149 Cal.App.3d at p. 176, 196 Cal.Rptr. 670.)

 Griffin elected to pursue the allocation process in phases.   It does not allege that City refused permission to complete phase I.   We find that the granting of allocations for phase I did not give Griffin the automatic right to be granted allocations for the second and third phases.

 Although allegedly held in a slipshod manner, the City did conduct an administrative hearing concerning the application to build additional phases.   The resolution of Griffin's varied contentions requires that the reviewing court look at the record of this administrative proceeding to determine whether the governmental entity has proceeded in the manner required by law.  (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123–124, 109 Cal.Rptr. 799, 514 P.2d 111.)   As such, Griffin's writ petition, in seeking to contest the validity and application of the slow-growth ordinance, must be classified as a sounding in administrative mandate.   (Pacifica Corp. v. City of Camarillo, supra, 149 Cal.App.3d at p. 178, 196 Cal.Rptr. 670;  see also Woods v. Superior Court (1981) 28 Cal.3d 668, 675–677, 170 Cal.Rptr. 484, 620 P.2d 1032.)

Code of Civil Procedure section 1094.6 places a 90–day statute of limitations on challenges to administrative decisions.   The complaint in the present matter was filed six months after the City Council's decision to reject Griffin's application to proceed with the entire Greenbriar project.   City therefore contends that respondent court properly sustained the demurrer to the cause of action for mandamus.   We find that the trial court did not abuse its discretion when it sustained the demurrer as to the cause of action for traditional mandamus.

D. Inverse Condemnation

 The general rule is easily stated:  a cause of action for inverse condemnation will lie where the regulation in question does not advance a  legitimate governmental interest, or where it serves to deprive the landowner of all, or substantially all, of the use of his land.   (Ruckelshaus v. Monsanto Co. (1984) 467 U.S. 986, 1005, 104 S.Ct. 2862, 2874, 81 L.Ed.2d 815;  Agins v. Tiburon, supra, 447 U.S. at p. 260, 100 S.Ct. at p. 2141;  Martino v. Santa Clara Valley Water Dist., supra, 703 F.2d at p. 1147;  Griffin Development Co. v. City of Oxnard (1985) 39 Cal.3d 256, 217 Cal.Rptr. 1, 703 P.2d 339.)   It is extremely difficult, however, to apply the rules to specific cases.  (Ruckelshaus, supra, 467 U.S. at p. 1005, 104 S.Ct. at p. 2874;  Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 123–124, 98 S.Ct. 2646, 2658–2659, 57 L.Ed.2d 631.)   The cases that discuss the law of inverse condemnation are “subject to no academic rule.” 1  (See Siemon & Larsen, The Taking Issue Trilogy:  The Beginning of the End? (1988) 33 Wash.U.J.Urb. & Contemp.L. 169, 198–199.)

 City raises the defense that Griffin's inverse condemnation claim is not ripe for adjudication.  (Williamson Planning Comm'n v. Hamilton Bank, supra, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126.)   The requirement of a final administrative decision does not apply in those cases that challenge an ordinance, on its face, as being arbitrary and unreasonable.  (Keystone Coal Association v. DeBenedictis (1987) 480 U.S. 470, 494, 107 S.Ct. 1232, 1246, 94 L.Ed.2d 472;  Smithfield Concerned Citizens v. Town of Smithfield (1st Cir.1990) 907 F.2d 239, 242–243.)

 Among its many objections to the ordinance, Griffin avers that the regulation is arbitrary in that it does not substantially advance any legitimate state interest.  (See, e.g., Euclid v. Ambler Realty Co. (1926) 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303.)   The test to be applied is whether the land use ordinance under review is, on its face, arbitrary and capricious, having no substantial relationship to public health, safety, morals or general welfare.  (Nollan v. California Coastal Comm'n, supra, 483 U.S. at p. 837, 107 S.Ct. at p. 3148;  Agins v. Tiburon, supra, 447 U.S. at p. 261, 100 S.Ct. at p. 2141.)   The slow-growth ordinance was enacted by City with the avowed purpose to “protect the unique, hill-surrounded environment;  enhance the quality of life;  promote public health, safety or welfare and the general well-being of the community․”

There has long been concern over the harmful consequences visited upon urban centers as a result of rapid and uncontrolled growth.  “So it is that in California one sees not only the consequence of unplanned, careless, or deliberately destructive past activity;  one also gets the feeling that the worst is yet to come.   There are times when the change without apparent direction,  and the growth without control, give the appearance of socially acceptable madness, of a human population irruption that may well end tragically both for the people and for the land.”  (Dasmann, The Destruction of California (1966) p. 28.)

In 1961, sociologist Lewis Mumford chronicled the manner in which the unchecked growth of suburbs had resulted in the destruction of those characteristics that once made suburbia attractive.  “Instead of creating the Regional City, the forces that automatically pumped highways and motor cars and real estate developments into the open country have produced the formless urban exudation.   Those who are using verbal magic to turn this conglomeration into an organic entity are only fooling themselves.   To call the resulting mass Megalopolis, or to suggest that the change in spatial scale, with swift transportation, in itself is sufficient to produce a new and better urban form, is to overlook the complex nature of the city.   The actual coalescence of urban tissue that is now taken by many sociologists to be a final stage in city development, is not in fact a new sort of city, but an anti-city.   As in the concept of anti-matter, the anti-city annihilates the city whenever it collides with it.”  (Mumford, The City in History (1961) ch. 16.)

 Laws, such as City's ordinance, which serve to protect a community from the ill effects of haphazard urbanization, and which promote orderly development, are a proper exercise of police power.  (Smithfield Concerned Citizens v. Town of Smithfield, supra, 907 F.2d at p. 245;  Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 226 Cal.Rptr. 81, 718 P.2d 68;  First English Evangelical Lutheran Church v. County of Los Angeles (1989) 210 Cal.App.3d 1353, 1360, 258 Cal.Rptr. 893.)

 Griffin argues that governmental goals relating to the supply of affordable housing conflict with City's goal of protecting the environment through the means of slowing urban development.   The slow-growth ordinance may possibly hamper City's ability to provide its fair share of regional housing needs for low-income families.  (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 601, 135 Cal.Rptr. 41, 557 P.2d 473;  Gov.Code, § 65913 et seq.;  Health & Saf.Code, § 50000 et seq.;   see also Hansen v. Department of Social Services (1987) 193 Cal.App.3d 283, 297, 238 Cal.Rptr. 232.)   If so, City may be subject to a collateral attack premised upon the ground that the general plan lacks a due consideration of the housing needs of low-income persons.  (See, e.g., Southern Alameda Span. Sp. Org. v. City of Union City, Cal. (9th Cir.1970) 424 F.2d 291, 295–296;  Southern Burlington County NAACP v. Township of Mount Laurel (1975) 67 N.J. 151, 336 A.2d 713.)

 These competing interests, however, do not, of themselves, render growth-control laws invalid.  “The desirability of encouraging subdividers to  build low-cost housing cannot be denied and unreasonable exactions could defeat this object, but these considerations must be balanced against the phenomenon of the appallingly rapid disappearance of open areas in and around our cities.”  (Associated Home Builders Etc., Inc. v. City of Walnut Creek, supra, 4 Cal.3d at p. 648, 94 Cal.Rptr. 630, 484 P.2d 606.)   Cities and counties possess the legislative discretion to determine which of the conflicting imperatives must be chosen in order to promote public welfare.  (See, e.g., Gov.Code, §§ 65302, 65030, 65030.1;  Barancik v. County of Marin, supra, 872 F.2d at p. 837;  Associated Home Builders Etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 604, 135 Cal.Rptr. 41, 557 P.2d 473.)

Legislative choices in this area are presumed to be valid, and “ ‘․ so long as it remains a “question upon which reasonable minds might differ,” there will be no judicial interference with the municipality's determination of policy.’ ”  (Associated Home Builders Etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 605, 135 Cal.Rptr. 41, 557 P.2d 473;  see also Penn Central Transp. Co. v. New York City, supra, 438 U.S. at p. 129, 98 S.Ct. at p. 2661.)   Griffin has failed, further, to cite authority that would, upon a claim of inverse condemnation, overturn a local growth-control ordinance on the ground that it conflicts with state policy goals that relate to the provision of affordable housing.

Failing in a facial attack upon the slow-growth ordinance, Griffin attempts to plead around the ripeness doctrine in alleging that, as a consequence of City's actions, it will not receive any more allocation grants.   As we have said earlier, this conclusionary statement is contradicted by assertions that Griffin does not expect to complete the development until 1992, as well as by the failure to allege that City has issued a final determination which precludes Griffin from completing its projects by that date.

 City's enforcement of the ordinance may, at most, serve to delay the construction of these dwellings.  (See Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 473, 208 Cal.Rptr. 228, 690 P.2d 701.)   Reasonable delay by the government in approving a project does not constitute a taking.  (First English Evangelical Lutheran Church v. County of Los Angeles, supra, 210 Cal.App.3d 1353, 258 Cal.Rptr. 893;  Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862, 868–869, 241 Cal.Rptr. 787.)   It follows that Griffin's claim for inverse condemnation is premature and not ripe for adjudication.  (Hodel v. Virginia Surface Min. & Recl. Assn. (1981) 452 U.S. 264, 297, 101 S.Ct. 2352, 2371, 69 L.Ed.2d 1.)

 CONCLUSION

The petitions are denied and the alternative writ, having served its purpose, is ordered discharged.

FOOTNOTES

1.   We borrow the wisdom of Jack Point.  (See Gilbert & Sullivan, The Yeomen of the Guard (1888).)

GILBERT, Acting Presiding Justice.

YEGAN and ABBE,* JJ., concur.