May 3, 2010

Landowners need not resort to legislative process to ripen takings claims

By Landowners need not resort to legislative process to ripen takings claims

Author: Luke A. Wake

In December we filed a brief in Howard v. San Diego arguing that a landowner is not required to seek a general plan amendment in order to ripen a takings claim, and on Friday we recieved a positive decision from the Fourth Appellate District on that issue.

In this case a couple sought to build a barn on their property, but they were told that they could not build where they originally intended because the County planned to build a road across their land in the future. They recieved a building permit with an express condition prohibiting them from building in the footprint of the proposed road. They then filed a takings claim against the County, but the suit was dismissed without prejudice because they had failed to seek an administrative remedy; specifically, the County wanted them to seek a remapping of the road. Once they sought a remapping, their claim was once more dismissed as unripe because they had failed to seek a General Plan Amendment, which the County argued was an "administrative remedy." The couple sought appeal of this dismissal, and we filed an amicus on their behalf arguing that their claims were ripe.

Our amicus brief argued that a General Plan Amendment is a legislative process, and that the couple could not be required to seek such a remedy in order to ripen their takings claim. In light of our arguments, the Court asked the parties for further briefing on the question of whether the General Plan Amendment was legislative or administrative in nature. The court ultimately accepted our argument that the couple could not be required to seek a General Plan Amendment in order to ripen their claims because such an amendment is a legislative act and not an administrative remedy.

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