Back to Mirada Surf Main PageSHUTE, MIHALY & WEINBERGER
Attorneys At Law
396 Hayes Street
San Francisco, CA 94102
Telephone: (415) 552-7272
Telecopier: (415) 552-5816
August 15, 1997
Mary Hobbs
Moss Beach, CA
Re: Evaluation of Potential Takings Claim on Behalf of the McCracken-Byers Property
Dear Ms. Hobbs:
You have asked me to advise you concerning whether San Mateo County could be subject to a valid takings claim by the owners of the McCracken-Byers property which is designated for "Park" use in the relevant portions of the San Mateo County General Plan. This question arises from discussions by a negotiating team appointed by the El Granada Waterfront Task Force. Apparently, there may be a compromise plan under consideration by the negotiating team but I have disregarded any information pertaining to the terms of a possible compromise. I have only considered legal issues relating to the alleged takings claim.
Drawing from several telephone conversations and some material provided by the San Mateo County Planning Department, my understanding of the situation is as follows: Approximately 14 acres of land located on the east side of Highway 1 between El Granada and Miramar (referred to as the McCracken-BYers property) has been designated for Park use since approximately 1978 in relevant County plans. The County has never made any attempt to acquire the land. It is not clear but it seems that the zoning is RM/CZ (Resource Management/Coastal Zone District) which would allow very low density development (40 or more acres/unit) and one density credit per legal parcel (no determination of the number of parcels has been made). The owners of the McCracken-Byers parcel have stated that in the absence of a consensus plan, they would apply to the County for approval of 75 homes on the parcel designated for Park use.
My conclusions are as follows:
1. The Park designation on the McCracken-Byers parcel does not in and of itself constitute a taking of the owners' property rights. Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal. 3d, 110, 117-118 (Designations in a general plan for public use are not takings.)
2. A takings claim could only be pursued if a proper application for development is filed and denied by the County based on the Park designation. Williamson County Regional Planning Comm'n v. Hamilton Bank (1985) 473 U.S. 172, 183 (Courts will not consider takings claims until it is established by an application process just what level of development the agency will allow). If the County were to receive and deny a proper application for 75 homes on the McCracken-Byers parcel on the basis of the Park designation and if the County were to refuse to allow any development of the property, the owners would very likely prevail on a takings claim in court. Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003 (Where the owner can make no reasonable use of property due to government regulation, a taking will be found).
3. The owners might argue that the County intends to deprive them of the use of their property in order to drive down the price so that the County could acquire the property cheaply. Under this legal theory, the owners could recover the full market value of the property if successful. However, given the apparent lack of interest of the County in acquiring the parcel it seems unlikely that the owners could win in court on this theory. The court would very likely limit the damages for the taking to so-called "interim damages" measured as the loss to the owner for the period from the time of the County's denial (not the 1978 Park designation) to the time of the final judgment. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) 482 U.S. 304 (compensation must be paid for loss of use during the period of time government regulation constitutes a taking). The court would give the County the option to acquire the full fee or exempt the property from the takings restriction and pay the interim damages. Hensler v. City of Glendale (1994) 8 Cal. 4th 1 (It is the local agency and not the court which has the power to choose between buying the property or paying interim damages). Interim damages for the relatively short period of time between denial and final judgment would probably be a small percentage of the market value of the property. But, if the County chose to pay those damages as determined by the court, the property would still be in private ownership and the County would be exposed to continued damage claims until it acquired the property or amended the relevant plans to allow development.
4. It is unlikely the County would allow itself to get into the position of being sued for a taking on the basis of the Park designation on the McCracken-Byers parcel. More likely, the County would entertain some level of development. The amount and kind of development the County would approve would be a function of the County's general outlook on development in the coastal area. The usual rough and tumble of the local land use process would ensue and the outcome would be a product of planning considerations as well as the respective political influence of the developer and the opponents. However, the County would not restrict development in an effort to save its Park designation.
If you have any questions or wish me to attend a meeting of the El Granada Waterfront Task Force, please contact me.
Very truly yours,
SHUTE, MIHALY & Weinberger
(signed) E. Clement Shute, Jr.
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