Agenda - Planning Commission - 09/05/2013

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Zoning Bulletin July 25, 2013 I Volume 7 I Issue 14 } Six months after Lockaway's purchase of the property, in November 2000, the County voters enacted Measure D, a growth control initiative. Measure D became effective on December 22, 2000. Among other things, Measure D generally prohibited the development of a storage fa- cility in the area of Lockaway's property, except by public vote. Nota- bly, § 22 of Measure D provided that: (a) Measure D did not "affect existing parcels, development, structures, and uses that are legal at the time it becomes effective"; and (b) Measure D applied to "development or proposed development which ha[d] not received all necessary discretionary County and other approvals and permits prior to the effec- tive date of [Measure D]." Even after Measure D became effective, Lockaway pursued its plan to develop the Property. Throughout the development process, Lockaway had frequent dialogue with County administrators. County administra- tors never told Lockaway that Measure D use restrictions applied to the Lockaway Project. In fact, County administrators encouraged the Proj- ect and acknowledged that Lockaway had already implemented the 1999 CUP. They also assured Lockaway that if grading and building permits were not issued by the CUP's September 22 expiration date, a formal letter would be prepared stating that the CUP had been implemented. Lockaway obtained its grading permit on September 19. However, the County did not issue a building permit for the Project prior to the September 22, 2002, termination date of the 1999 CUP. After the CUP expiration date passed, the County changed its position: The County took the position that Measure D applied to the Project because Lockaway had not obtained a building permit and commenced construction prior to Measure D's December 22, 2000, effective date. No mention was made of the possible effect of § 22 on Lockaway's right to proceed with the Project. Lockaway argued that its right to complete the Project was unaffected by Measure D because the 1999 CUP was implemented before it expired. Under protest, Lockaway applied for a new CUP. The County Board of Zoning 'Adjustment denied the application on the ground that it was in- consistent with Measure D. The County Board of Supervisors affirmed that decision. Lockaway then filed suit against the County. Among other things, Lockaway alleged that the County's action amounted to a regulatory taking (i.e., inverse condemnation) under the Fifth Amendment to the United States Constitution, and that Lockaway was entitled to damages for the County's suspension of Lockaway's development Project. The County argued that the Lockaway Project could not proceed because the 1999 CUP was issued pursuant to a zoning provision which was superseded by Measure D. According to the County, when Measure D took effect in December 2000, the zoning ordinance became ineffec- tive and the 1999 CUP issued pursuant to that ordinance was also ineffective. © 2013 Thomson Reuters