Agenda - Planning Commission - 09/05/2013

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July 25, 2013 I Volume 7 I Issue 14 Zoning Bulletin Lockaway argued that its Project was exempt from Measure D under § 22 of the ordinance. Lockaway argued that this "grandfather clause" applied to its Project because it had obtained all necessary discretionary approvals from the County prior to Measure D's effective date. It noted, and the County agreed, that the building permit that had not yet issued prior to the expiration of the 1999 CUP was merely ministerial. The superior court found that Measure D did not apply to the Lockaway Project because the undisputed facts established that the proj- ect was "squarely under the protections of Section 22 of Measure D." The court found that the County's application of Measure D was a temporary regulatory taking making it liable in damages to Lockaway on its cause of action for inverse condemnation. The court awarded Lockaway $504,175 in lost profits and $324,954 in increased construc- tion costs due to the 30-month delay caused by the County's application of Measure D to the Project, plus attomey's fees. The County appealed. The County argued that § 22's exemptions were more narrow than the superior court had interpreted, and that, in any case, they did not apply to Lockaway because Lockaway had failed to timely obtain all discretionary approvals. The County further argued that even if Measure D did not prohibit Lockaway from completing its Proj- ect, the temporary suspension of the Project did not, amount to a constitutional taking as a matter of law. DECISION: Judgment of superior court affirmed. The Court of Appeal, First District, Division 3, California, held that Lockaway's Project was exempt under § 22 of Measure D because the CUP had been implemented and all but the ministerial permits had been obtained. The court also held the County's temporary suspension of Lockaway's Project development was a regulatory taking under the Fifth Amendment to the United States Constitution, entitling Lockaway to just compensation. Looking at the plain language of § 22, the court found that it created an exemption from the restrictions and requirements of Measure D for all existing and unaltered development, or proposed development, provided the developer obtained all discretionary County approvals and permits before December 22, 2000. And, the court found that the County had stipulated to the facts that: the CUP for the Lockaway Project was obtained before Measure D went into effect; the grading permit was is- sued after Measure D went into effect but was a ministerial permit; and the building permits issued after the CUP's expiration date were ministerial. Thus, the court concluded that the Lockaway Project was exempt from the use restrictions imposed by Measure D, pursuant to § 22. In determining that the County's actions amounted to a regulatory taking the court explained: The Fifth Amendment, which applies to the states via the 14th Amendment, prohibits government from taking private property for public use without just compensation. 10 ©2013 Thomson Reuters