HENSLER v. CITY OF GLENDALE (1993)

Statement of the Case

Plaintiff R.R. Hensler sued defendant City of Glendale for inverse condemnation of a tract of land based on the City's enactment of an ordinance precluding the development of a portion of Hensler's property by prohibiting construction along identified major ridge line areas.   The City demurred on several grounds, including statutes of limitations.   The trial court sustained the demurrer without leave to amend, and this appeal is from the order of dismissal thereafter entered.   We conclude that Hensler's action for inverse condemnation is time barred as a matter of law and therefore affirm.¹

Statement of Facts

As set forth in Hensler's complaint and its exhibits, the pertinent facts are as follows:

In 1978, Hensler purchased a 300 acre tract of land in the City of Glendale.   He purchased the tract intending to develop it consistent with the zoning then in effect which contained no prohibitions other than a restriction limiting development to single-family dwellings.   Later in the same year, Hensler submitted plans to the City for approval but a dispute arose about an Environmental Impact Report and Hensler temporarily abated his development activity.

In March 1981, the City added section 28–2.1 to the Glendale Municipal Code.   The ordinance prohibited the location of any “man-made features [on any of the] major ridge lines” ² and thereby foreclosed Hensler from development of approximately 40 percent of his property.   As authority for the enactment of the ordinance, section 28–3 of the Glendale Municipal Code recites that enactment of the ordinance is pursuant to “sections 8j and 11 of article XI of the Constitution of California and the Subdivision Map Act, Division 2 of Title 7, of the Government Code (commencing with § 66410) of the State of California.”

Between June 1983 and July 1984, Hensler submitted three different plans for the development of the tract.   During this same period, representatives of the City informed Hensler that any submittal which included development of the major ridge lines would be rejected.   The ordinance expressly identified and incorporated by reference sheets (maps) designating the affected major ridge lines and the tentative tract maps and plans submitted by Hensler were required to include plans for the complete preservation of the major ridge lines in their natural state.   On April 1, 1986, the City approved Hensler's plans for a 596–unit planned residential development, downsized to 588 units, and rejected all proposed use and any encroachment within, on, or over the major ridge lines within the tract.³

In September 1989, Hensler filed his complaint for inverse condemnation, seeking damages of $10 million.   He alleged that the prohibition of any development on the major ridge lines constituted a compensable taking under the state and federal Constitutions because such proscription rendered approximately 40 percent of his property economically and beneficially useless.

Discussion of Applicable Statute of Limitations

 The parties debate at great length the applicable statute of limitations.   Generally, an inverse condemnation action based upon damage to property must be filed within three years of discovery of the damage (Code Civ.Proc., § 338, subd. (j)), while an action based upon a taking of property generally is to be filed within five years of the taking.  (Code Civ.Proc., §§ 318 and 319.)   But neither statute applies here because Hensler's claim is based upon a decision made by the City pursuant to an ordinance enacted under the authority of the Subdivision Map Act, making the 90–day limitations period of Government Code section 66499.37 controlling.⁴

Government Code section 66499.37 is part of the Subdivision Map Act. (Gov.Code, § 66410 et seq.)   It appears in chapter 7 of the Act, which is entitled “Enforcement and Judicial Review.”   In pertinent part, the statute requires that “[a]ny action or proceeding to attack, review, set aside, void or annul the decision of ․ [a] legislative body concerning a subdivision ․ or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such action or proceeding is commenced ․ within 90 days after the date of such decision.   Thereafter all persons are barred from any such action or proceeding․”

The statute by its terms applies to “[a]ny action or proceeding” and is not limited to actions for administrative mandate under Code of Civil Procedure section 1094.5.   Accordingly, its 90–day time limit has been interpreted to apply to an action for declaratory relief challenging a board of supervisors' denial of a request to toll the expiration date of a tentative subdivision map (Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 282 Cal.Rptr. 564 [review den.] ) and to an action seeking both to declare unconstitutional a policy requiring the payment of “school impact fees” as a condition of approval of a subdivision map and to recoup fees already paid.  (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 150 Cal.Rptr. 606.)

The City enacted the ordinance prohibiting development on the major ridge lines pursuant to the authority granted to it by the Subdivision Map Act.   (Glendale Mun.Code, § 28–3.)   As alleged in Hensler's complaint, the predicate of his inverse condemnation action is “[t]he enactment of the Major Ridgeline Ordinance, and its subsequent actions upon plaintiff's plan of development conditioned on no development of the Affected Property․”  Because Government Code section 66499.37 specifically speaks to controversies arising out of the Subdivision Map Act regardless of how the action is framed or characterized, it necessarily prevails over the more general statute of limitations found in the Code of Civil Procedure.  (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 443, fn. 9, 275 Cal.Rptr. 113.) It follows that Hensler's inverse condemnation action is governed by Government Code section 66499.37.

Policy for Time Bar for Constitutional Challenge to Subdivision Approval

 Although Hensler's complaint raises a claim of a serious impairment of a constitutional right, “even a constitutional right is subject to reasonable statutory periods of limitation within which to commence an action for its vindication.”  (Timberidge Enterprises, Inc. v. City of Santa Rosa, supra, 86 Cal.App.3d at p. 886, 150 Cal.Rptr. 606.)   Hensler does not quarrel with this fundamental proposition but he contends that only a very liberal application of the five-year statute is constitutionally permissible in this case.   We do not agree.  “ ‘The power of the Legislature to provide reasonable periods of limitation is unquestioned and the fixing of time limits within which particular rights must be asserted is a matter of legislative policy․  The only restriction as to the legislative power with respect to a statute of limitations is that it must not be so manifestly inequitable as to amount to a denial of justice, and unless such is the case, its determination is final.’  [Citation.]  Under this criteria, the [90–day] period of limitations of Government Code section 66499.37 is manifestly reasonable.”   (Timberidge Enterprises, Inc. v. City of Santa Rosa, supra, 86 Cal.App.3d at pp. 886–887, 150 Cal.Rptr. 606.) ⁵  The legislative intent in requiring swift action by the aggrieved party is to expedite, consistent with the requirements of due process of law, judicial review of Subdivision Map Act controversies.  (Presenting Jamul v. Board of Supervisors, supra, 231 Cal.App.3d at pp. 671–672, 282 Cal.Rptr. 564, and cases cited therein.)

 In Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 11 Cal.Rptr.2d 824, the court explained the solid policy concerns for requiring a litigant to first raise a claim of inverse condemnation by way of administrative mandamus when the claim arises out of a challenge to administrative actions.   In the context of regulating and approving subdivisions the same policy reasons are applicable.   The City must be able to “plan its actions in the public interest and to make reasonable and responsible allocations of resources that it holds in trust for the public ․ [and] be alerted promptly both when its decisions are questioned, and when, as a result of a particular decision, the agency may be liable for inverse condemnation damages.”  (At pp. 611–612, 11 Cal.Rptr.2d 824.)   Furthermore if the City is “operating with limited resources [it] may be liable for inverse condemnation damages as a result of a particular decision, the [City] must be afforded an opportunity to change or stay enforcement of the challenged action, remove or modify a challenged condition, or take other action to mitigate the claimed damages if it determines enforcement of its order does not merit the compensation required to be paid․  [¶] 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.  [Citations.]”  (Id. at pp. 612–613, 11 Cal.Rptr.2d 824.)   The rationale of the Patrick Media Group holding is fully applicable here.

Appellant's Delay Falls Within the Operation of Government Code Section 66499.37

 According to the allegations in Hensler's complaint, he learned of his right to raise this claim no later than April 1, 1986, when the City approved his plan for a 588–unit development because “[i]n the process of review of the above plans, the defendant City rejected all proposed use and any encroachment within [the major ridge lines on his property].”   Hensler had 90 days from the date of that decision to file “[a]ny action or proceeding to attack, review, set aside, void or annul the decision ․ or to determine the reasonableness, legality or validity of any condition attached thereto ․”  (Gov.Code, § 66499.37;  emphasis added.)   There is no reason why Hensler could not have brought his action within 90 days after the approval of his plans because the area of his development was specifically definable by reference to the tentative tract map he was required to file and because the absolute and total prohibition of the ordinance results in a present and ascertainable loss.

Contrary to Hensler's claim, this is not a situation in which there was any difficulty in pinpointing the fact of the taking and calculating the resulting damages.   This case involves neither a continuing wrong nor a loss which does not materialize until some time after the taking has occurred.  (See, e.g., Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, 286–290, 74 Cal.Rptr. 521, 449 P.2d 737.)   By April 1986, Hensler knew that he would be precluded from developing 40 percent of his land.   At that juncture, he knew there had been what he characterizes as “a legislative conversion of 40% of his substantial tract of land into an untouchable public preserve of some sort, and that this [was] a de facto taking of the Affected Land ․ which was thus deprived of all reasonable use as a matter of law.”  (Emphasis in original.)   The impact of the City's decision was clear and the nature and extent of Hensler's damages were completely ascertainable.   Hensler's failure to bring any action within 90 days after the approval of his subdivision map bars his claim as a matter of law.⁶

Although the United States Supreme Court has held that a property owner cannot be limited to the remedy of invalidation of a regulatory taking (First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 321–322, 107 S.Ct. 2378, 2389–2390, 96 L.Ed.2d 250), it does not follow that a property owner can compel the government to exercise the power of eminent domain.   Here the issue is not the form of action implemented by the property owner, but the excessive delay in doing anything.   With the passage of time, the City's practical options remaining to accommodate the landowner's claim of taking may have diminished in terms of available resources and the development of other private and public projects.   By deferring the commencement of his inverse condemnation action for more than three years after the approval of his subdivision map, Hensler falls squarely within the operation and purpose of Government Code section 66499.37.⁷

Disposition

The judgment (order of dismissal) is affirmed.

FOOTNOTES

1.   The trial court's order recited:  “The action is barred by the statute of limitations;  plaintiff has waived any challenge to the conditions of the subdivision approval;  plaintiff has failed to allege facts sufficient to constitute a ‘taking’ of property without just compensation and, as a matter of law, plaintiff has not been deprived of substantially all reasonable use of his property.”   Because our determination of this appeal is based solely on the statute of limitations, we do not address the other issues.

2.   Glendale Municipal Code (Major Ridge Line Ordinance) section 28–2.1 provides in pertinent part:  “(a) Intent and purpose.   The city is experiencing unprecedented hillside subdivision development which without proper planning may destroy major ridge lines which are an exhaustible and precious scenic resource of the city and its citizens;  it is necessary that subdivision developers include with their tentative tract maps, plans for the preservation of major ridge lines.  [¶] (b) Submission of plans.   The tentative tract map and plans for any subdivision development which touches, crosses, includes or effects major ridge lines shall include plans for the complete preservation of such major ridge line areas in their natural state.  [¶] (c) Major ridge lines defined.   A major ridge line shall be any ridge line in the city of Glendale so designated as ‘major ridges' on Sheet Nos. OC, OD, IC, ID, 4A, 4B, 4C, 5B, 5C, 5D, 6B, 6C, 6D, 6E, 6F, 7B, 7C, 7D, 7E, 7F, 8C, 8D, 8E, 9E, 9F, 9G, 10E, 10F, and 10G of the Glendale, Los Angeles County, California, Metropolitan Area two hundred (200) scale topographic maps which are attached hereto, incorporated herein and by this reference made a part hereof.   No engineered slopes, housing construction, streets, utilities, or other man-made features shall be permitted within identified major ridge line areas․”

3.   Hensler subsequently sold his interest in the property to entities which completed much of the development.   Hensler's sale does not bar him from seeking damages for the amount by which his selling price was reduced by the alleged taking.  (City of Los Angeles v. Ricards (1973) 10 Cal.3d 385, 389, 110 Cal.Rptr. 489, 515 P.2d 585.)

4.   Government Code section 66499.37 provides:  “Any action or proceeding to attack, review, set aside, void or annul the decision of an advisory agency, appeal board or legislative body concerning a subdivision, or of any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 days after the date of such decision.   Thereafter all persons are barred from any such action or proceeding or any defense of invalidity or unreasonableness of such decision or of such proceedings, acts or determinations.   Any such proceeding shall take precedence over all matters of the calendar of the court except criminal, probate, eminent domain and forcible entry and unlawful detainer proceedings.”

5.   When Timberidge was decided, Government Code section 66499.37 provided for a 180–day period.   In 1980, the Legislature amended the statute to provide for a 90–day period.  (Kirk v. County of San Luis Obispo (1984) 156 Cal.App.3d 453, 459, fn. 4, 202 Cal.Rptr. 606.)   That change does not affect the vitality of Timberidge's conclusion that the statute represents a valid exercise of legislative power.

6.   Because Hensler neither brought an action in administrative mandamus nor filed a complaint for money damages in 1986, we need not address his contentions that recent United States Supreme Court decisions indicate that he would have been required to pursue only the latter option.   We do note, however, that current precedent from the California Courts of Appeal have resolved the question adversely to Hensler.   (Patrick Media Group, Inc. v. California Coastal Com., supra, 9 Cal.App.4th 592, 607–613, 11 Cal.Rptr.2d 824, relying upon Preseault v. ICC (1990) 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1;  Rossco Holdings Inc. v. State of California (1989) 212 Cal.App.3d 642, 656–661, 260 Cal.Rptr. 736 [review den.], cert. denied 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 940;  and California Coastal Com. v. Superior Court (1989) 210 Cal.App.3d 1488, 1496, 258 Cal.Rptr. 567.)

7.   Between June 28, 1983, and July 24, 1984, Hensler submitted various plans to the City and was advised that any plans that did not comply with the ordinance prohibiting development of the ridge lines would be rejected.   On that basis alone, Hensler's claim was arguably barred no later than July 25, 1989, two months prior to the filing of the action.   (Code Civ.Proc., §§ 318 and 319.)   We do not consider this factor in reaching our decision because the case arises in the context of the Subdivision Map Act and because the date of the approval of the subdivision tract map provides a more definitive and unequivocal point in time for establishing when Hensler's cause of action accrued.

CHARLES S. VOGEL, Associate Justice.

ARLEIGH M. WOODS, P.J., and STEPHENS, J.*, concur.