Judge James C. Chalfant, Case Number: 23STCP02775, Date: 2024-01-25 Tentative Ruling

Respondent City of Santa Clarita and its City Council (collectively, “City”) demur to the Petition filed by Petitioners Bradley Business Center and I-5/126 Limited Partnership (collectively, “Bradley”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioners commenced this action against City on August 2, 2023, alleging (1) administrative mandamus and (2) inverse condemnation. The verified Petition alleges in pertinent part as follows.

In August 2006, Petitioners acquired 9.49 acres of real property near the northeast corner of Newhall Ranch Road and Interstate 5 (“Property”). Pet., ¶¶ 1, 12. The City’s November 2007 General Plan confirmed the Property was zoned as Business Park (“BP”). Pet., ¶12. North of the Property is the Pitchess Detention Center, a Los Angeles County correctional and detention facility. Pet., ¶19. Across the Interstate 5 freeway to the west of the Property are Industrial zoned properties. Pet., ¶19. Parcels to the east and southeast are zoned as BP. Pet., ¶19.

After acquiring the Property, Petitioners engaged in discussions and meetings with the City to develop the Property. Pet., ¶13. Petitioners learned the City was preparing to place a Planned Development Overlay on the Property which would have limited viable uses under the existing BP zoning. Pet., ¶14.

The City wanted the overlay because it wanted the previous Property owners to sell to Costco. Pet., ¶14. Petitioners met with Costco and learned it was not interested in buying the Property. Pet., ¶14. Petitioners objected to the restrictions that the proposed overly would impose on the Property. Pet., ¶14. After Petetioners met several times with the City’s then Community Planning Director and Planning Director, the City withdrew its request for the overlay. Pet., ¶15.

In early 2007, the City Council approved a Memorandum of Understanding (“MOU”) to work with Petitioners to determine the Property’s development. Pet., ¶15. The City repeatedly demanded that Petitioners create a sales tax-generating project. Pet., ¶16. Because the Southern California Gas Company (“SoCal Gas”) refused to provide an access easement through its adjacent property to Newhall Ranch Road, the only access to the Property was through Biscailuz Drive, which is a narrow two-lane road,. Pet., ¶17. Petitioners could not find a potential commercial use to provide tax revenue as demanded and turned to self-storage as the only practical and economically viable development for the Property. Pet., ¶17. Self-storage was permitted by the BP zone designation in place when Petitioners purchased the Property. Pet., ¶17.

Petitioners then learned that the City had changed the zoning from BP to Community Commercial (“CC”). Pet., ¶18. The November 2007 General Plan lists the zone as BP, but the August 2010 General Plan Update – Land Use Change Map lists the zone as CC. Pet., ¶18. The City gave no specific notice to Petitioners of this zone change. Pet., ¶18. The City made the formal zone-change in 2013 and confirmed it in a December 2018 General Plan Update. Pet., ¶18.

The City singled out two parcels for the zone change from BP to CC: the Property and SoCal Gas’s parcel. Pet., ¶20. Of the two, only the Property is privately owned with any probable development potential in the near or foreseeable future. Pet., ¶20. This zone change leaves the Property and the SoCal Gas parcel as a two-parcel CC island, surrounded by Industrial and BP zoning. Pet., ¶20. The zone change constitutes irrational and arbitrary discrimination targeting Petitioners’ Property. Pet., ¶20.

The CC spot zoning leaves Petitioners with no means of practical economic development of the Property. Pet., ¶21. CC zoning is limited to uses such as daycare centers, retail, office, restaurants, and limited automotive repair uses. Pet., ¶20. None of these uses is desirable in close proximity to a detention facility. Pet., ¶21. Nor could Biscailuz Drive accommodate the traffic that these uses would bring. Pet., ¶21. These uses also would require access to the public sewer, which Petitioners do not have without access to Newhall Ranch Road. Pet., ¶21.

Self-storage is the only economically viable use for the Property. Pet., ¶22. It is allowed under BP zoning and was one of Petitioners’ intended uses when they bought the Property. Pet., ¶22. Self-storage generates less traffic than CC uses and would not overtax Biscailuz Drive or require access to the public sewer and wastewater services. Pet., ¶22.

In July 2018, Petitioners submitted a One Stop Review application to the City Planning Division. Pet., ¶23. The application sought preliminary review of a 320,584 square-foot self-storage and recreational vehicle storage facility on the Property. Pet., ¶23. On August 30, 2018, the City’s Design Review Committee (“DRC”)[2] issued a Design Review Report (“2018 Report”). Pet., ¶23. The 2018 Report acknowledged the Property is in a key commercial area that the City wanted developed as an active intense commercial use. Pet., ¶23. The City admitted that the Property could not support intense commercial use because of the narrowness of Biscailuz Drive. Pet., ¶23. The 2018 Report also stated that the proposed use was not permitted in a CC zone and that the City does not support a zone change or General Plan amendment for the Property. Pet., ¶24. These comments were inconsistent, arbitrary, and discriminatory. Pet., ¶24. The City knew about the Property’s access and wastewater constraints when it entered into the 2007 MOU with Petitioners. Pet., ¶24.

In September 2022, Petitioners submitted a second One Stop Review application seeking preliminary review of a change of zone and General Plan amendment for the Property from CC back to BP. Pet., ¶¶ 25, 27. The September 2022 application explained that the Property (1) had insufficient access to support the high traffic that any land use permitted under CC zoning would bring, (2) was too close to the 7,000-inmate Pitchess Detention Center to make such uses safe, and (3) had to rely on an onsite wastewater solution unfit for CC uses because extension of the public sewer system to the Property was not feasible. Pet., ¶26. Returning the Property to BP zoning would render it consistent with surrounding zoning and uses. Pet., ¶27. A BP zone would also restore Petitioners’ ability to evaluate and consider pursuing economically feasible uses. Pet., ¶27. Petitioners’ September 2022 application confirmed it was not seeking review of any specific site plan or development. Pet., ¶28.

On November 17, 2022, the DRC issued a Design Review Report (“2022 Report”) treating the September 2022 application as a request for specific plan of development. Pet., ¶28. The 2022 Report rehashed many comments in the 2018 Report. Pet., ¶28. It stated that the CC zone is intended for businesses that provide retail and service uses and are typically located along arterial streets or the intersections of high traffic corridors. Pet., ¶29. Yet, the City has known since 2007 that the Property is not located on an arterial street. Pet., ¶29. The City also knew that the Property does not have access to any “high traffic corridors.” Pet., ¶29. The 2022 Report also stated that self-storage is not permitted in the CC zone and would require a zone change and General Plan amendment to either BP or Industrial. Pet., ¶30.

In response to the DRC’s 2022 Report, Petitioners prepared an application (“Zoning Application”) for a change of zone and General Plan amendment to change the Property’s zoning from CC back to BP. Pet., ¶31. The Zoning Application did not seek review of any specific site plan and/or development. Pet., ¶31. The requested zoning change would reverse the City’s spot zoning and restored the zoning that existed for the Property when Petitioners purchased it. Pet., ¶31. The proposed change would have been consistent with surrounding properties and the DRC’s comments in its 2022 Report. Pet., ¶31.

When Petitioners attempted to file the Zoning Application on February 6, 2023, the Planning Division would not accept it. Pet., ¶32. Petitioners were informed that that Planning Division representatives would contact them with clarification or directions within the next two days. Pet., ¶32. The City did not contact Petitioners during that time. Pet., ¶32.

On February 15, 2023, Petitioners electronically submitted the Zoning Application. Pet., ¶32. The Zoning Application confirmed that once the City restored the BP zoning, Petitioners would evaluate and consider submitting a proposed development project consistent with the restored zoning and City standards. Pet., ¶33.

The Zoning Application reiterated that the limited access to the Property from Biscailuz Drive, the proximity to Pitchess Detention Center, and the impracticability of extending the public sewer system to the Property destroy any economically viable commercial use under CC. Pet., ¶35. Self-storage is not stigmatized by proximity to Pitchess Detention Center, can operate effectively with onsite wastewater solutions, and does not generate high volumes of traffic that would strain Biscailuz Drive. Pet., ¶36. It is one of the only economically feasible developments available for the Property. Pet., ¶36. The requested rezoning and General Plan Amendment would enable this development. Pet., ¶36.

The City did not deem the Zoning Application formally filed on February 15, 2023. Pet., ¶37. The City asserted that Petitioners were required to propose a specific development project for the City to consider a zone change and General Plan amendment. Pet., ¶37. On March 1, 2023, City Senior Planner David Peterson (“Peterson”) informed Petitioners the City could accept the Zoning Application without a specific development project, but only if Petitioners performed a full CEQA analysis that contemplated the highest use of the Property. Pet., ¶37. This would cost Petitioners hundreds of thousands of dollars. Pet., ¶37.

On March 27, 2023, Petitioners met with City Planner Peterson to discuss the Zoning Application and the Property’s development limitations. Pet., ¶38. Petitioners explained that it would be futile to spend money on a CEQA study only for the City to refuse the rezoning as stated in the 2018 Report. Pet., ¶38. Peterson agreed to investigate whether the City would reconsider its staunch opposition to a zone change and General Plan amendment. Pet., ¶38. Peterson said he was supportive of a zone change but would need to speak to his superiors about it, including Community Development Director Jason Crawford (“Crawford”). Pet., ¶38.

On May 5, 2023, Peterson confirmed by email that the City would not support the requested change of zone and General Plan amendment. Pet., ¶39. On May 16, 2023, Peterson emailed that he had spoken to Crawford, who in turn had spoken to City Manager Kenneth Striplin (“Striplin”). Pet., ¶39. Based on the comments received from Striplin, the City would under no circumstances support or approve the zoning change. Pet., ¶39. This position was consistent with the comments from the 2018 Report stating that the Property is in a key commercial area that the City desires to have active, intense commercial uses and that self-storage is not an active commercial use. Pet., ¶40.

The City has made clear what its decision would be on applications for a zone change, General Plan amendment, and a self-storage project on the Property. Pet., ¶40. The City will not accept the Zoning Application without Petitioners spending hundreds of thousands of dollars. Pet., ¶40. California law does not require Petitioners to pursue futile administrative remedies to invoke the court’s jurisdiction. Pet., ¶40.

The Petition’s first cause of action is for administrative mandamus, Petitioners have exhausted their administrative remedies to the extent they are not futile. Pet., ¶43. The City has made clear what its decision would be on any application for a zone change, General Plan amendment, and a self-storage project on the Property. Pet., ¶43. It refuses to accept the Zoning Application without expensive CEQA analysis, design plans, landscaping and related studies. Pet., ¶43.

The City has prejudicially abused its discretion by spot zoning the Property, refusing to approve the Zoning Application, and refusing to permit a self-storage development project on the Property, despite the fact that it is the only economically viable option. Pet., ¶44. This has seriously damaged Petitioners and will continue to do so. Pet., ¶46. The City also has a lengthy history of harassment and discrimination against the Seidenglanz family, who partially own the Property. Pet., ¶47.

The Petition’s second cause of action is for inverse condemnation. The City’s conduct constitutes inverse condemnation through a regulatory taking depriving Petitioners valuable property rights and economically viable use of the Property. Pet., ¶50. The spot-zoning and refusal to restore the BP zoning has stripped the Property of all economically viable development potential and diminished its market value. Pet., ¶51. It also wholly undermines Petitioners investment-backed expectations when they bought the Property zoned as BP. Pet., ¶51. The City’s motive seems to be to force Petitioners to keep the Property as open space or sell it. Pet., ¶51. The City also singled out the Property for unequal treatment because, aside from SoCal Gas’ parcel, every surrounding property remains zoned as either BP or Indutrial. Pet., ¶52. The City has refused to compensate Petitioners for this taking. Pet., ¶53.

Petitioners seek a writ of mandate compelling the City to (1) approve a zone change and General Plan amendment for the Property from CC to BP, and (2) approve a self-storage development project for the Property. Pet. Prayer for Relief, ¶1. Petitioners also seek compensatory damages. Pet. Prayer for Relief, ¶1.

Petitioners seek a judgment that the City’s unlawful and improper actions constitute a regulatory taking or inverse condemnation of property rights. Pet. Prayer for Relief, ¶2.

Under both causes of action, Petitioners seek damages to the extent permitted by law, costs, and attorney’s fees under CCP sections 1021.5 and 1036. Prayer for Relief, ¶¶ 3-5.

Govt. Code section 65009(c)(1) sets forth a statute of limitations applicable to actions attempting to attack, review, set aside, or void a decision of a legislative body to adopt or amend a (1) general or specific plan, (2) zoning ordinance, (3) regulation attached to a specific plan, (4) development agreement, or (5) condition attached to a variance, conditional use permit, or any other permit. Such actions must be commenced, and service must be made on the legislative body, within 90 days after the legislative body’s decision. Govt. Code §65009(c)(1).

Govt. Code section 65009 is intended to provide certainty for property owners and local governments regarding land-use decisions. Stockton Citizens for Sensible Planning v. City of Stockton, (2012) 210 Cal.App.4th 1484, 1491 (citing Govt. Code §65009(a)(3)). In providing this certainty, the statute’s function is to alleviate the “chilling effect on the confidence with which property owners and local governments can proceed with projects.” Ibid. (citing Govt. Code §65009(a)(2)).

The Planning Commission provides recommendations to the City Council on legislative acts such as General Plan amendments, revisions to the Unified Development Code, specific plans, and land use ordinances. RJN Ex. B, p. I-14 (General Plan Introduction).

An applicant may file for a General Plan amendment by submitting an application with the City’s Community Development Department. RJN Ex.B, p. I-22. An amendment to the General Plan constitutes a project under CEQA and is therefore evaluated for its environmental effects and consistency with other elements of the General Plan. Id. General Plan amendments must be reviewed for a recommendation by the Planning Commission prior to final action by the City Council. Id.

The City adopted architectural guidelines in 2002, updated them in 2009, and renamed them as the Community Character and Design Guidelines. RJN Ex. B, p. 1-12. The purpose of the Design Guidelines is to retain and encourage architectural variety, promote quality, and maintain the scale and appearance of the City, with attractive development that preserves and enhances natural features and provides amenities for enjoyment of the community. Id. The Design Guidelines play a critical role in implementing the General Plan’s goals and policies. RJN Ex. B, p. I-21.

All applications for development reviews, minor use permits, variances, conditional use permits, tentative tract maps, grading permits, or other entitlements that include physical alteration or construction shall be reviewed to ensure consistency with the Design Guidelines. RJN Ex. A, p. I-14 (Design Guidelines). The Director of Community Development and/or the Planning Commission or City Council will decide if a proposed project is consistent with the Design Guidelines’ overall intent. Id.

The DRC consists of various City departments. RJN Ex. A, p. 1-19. After submission of a One Stop Review application, these departments provide preliminary comments regarding the submittal requirements and the potential development. Id. An applicant who goes through the One Stop process receives credit for its cost towards the processing fees for the project’s formal submission. Id.

Depending on the level of permit, a project may be approved by City staff, the Planning Commission, or the City Council. Id. If a public hearing is necessary, the project goes to the Planning Commission or City Council for approval. Id.

Demurrers are permitted in administrative mandate proceedings. CCP §§1108, 1109. A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings. CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257. The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading. CCP §430.10. A demurrer is timely filed within the 30-day period after service of the complaint. CCP §430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain; (g) In an action founded on a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP sections 411.35 or 411.36. CCP §430.10.

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318. The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94), but it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47.

The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. This rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (“Vance”) (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. CCP §430.31(a). As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. CCP §430.31(a)(1). The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. Id. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. CCP §430.31(a)(3).

“[A] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” State ex rel. Metz v. CCC Information Services, Inc., (2007) 149 Cal.App.4th 402, 413.

If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed. CCP §472a(c). However, in response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. CCP §430.41(e)(1).

The storage facility proposed in Petitioners’ September 2022 Zoning Application is not permitted in the CC zone. RJN Ex. C, pp. 1, 4 (PL7). Petitioners’ proposed use would require a General Plan amendment/zone change if they chose to move forward with the application. RJN Ex. C, pp. 2, 4 (PL7). Petitioners are entitled to apply $1,515 in credit towards the entitlement fees for all the required entitlement applications, including for a General Plan amendment/zone change. RJN Ex. C, p. 2.

Respondent City demurs to the Petition’s administrative mandamus and inverse condemnation claims.

The DRC’s 2022 Report states that the Property is located in the CC zone, which is for businesses that provide retail and service uses primarily serving the local market. RJN Ex. C, p. 4 (PL6). Representative uses include restaurants, clothing stores, hardware and auto parts stores, grocery markets, pharmacies, banks and financial services, specialty retail, theaters and nightclubs, day care centers, and medical services. Ibid.

On September 8, 2023, City explained to Petitioners the grounds for its belief that the Petition fails to sufficiently plead any cause of action. Siegel Decl., ¶¶ 4-6. Petitioners disagreed but acknowledged that the City fulfilled the meet-and-confer requirement. Siegel Decl., ¶7. The court agrees.

The City contends that Petitioners failed to exhaust their administrative remedies for the administrative mandamus claim and that it also is not ripe.

As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies. See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554. Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures. Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.

The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.” Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293. The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary. Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4th377, 391.

The failure to allege exhaustion of administrative remedies or facts excusing the failure to exhaust renders the petition subject to demurrer for failure to state a cause of action. See, e.g., Stenocord Corp. v. City & County of San Francisco, (1970) 2 Cal.3d 984, 990. A mere allegation that petitioners have exhausted their administrative remedies has been held to be conclusory and insufficient to survive demurrer. Pan Pacific Property v. County of Santa Cruz, (1978) 81 Cal.App.3d 244, 251. On the other hand, such an allegation has also been held sufficient to survive demurrer. Wong v. Regents of University of California, (1971) 15 Cal.App.3d 823, 829. Therefore, the court has discretion in determining whether the allegation is adequate.

The City points out the Petitioners applied for an amendment to the General Plan and a zoning change but did not apply for approval of a specific self-storage project. Petitioners have since abandoned their application. Hence, they have failed to exhaust their administrative remedies. Dem. at 14.

There are exceptions to the exhaustion doctrine; exhaustion is excused when an administrative remedy is unavailable, is inadequate, or it would be futile to pursue it. McAllister v. County of Monterrey, (2007) 147 Cal.App.4th. 253, 275. Other exceptions include "situations where the agency indulges in unreasonable delay...when the subject matter lies outside the administrative agency's jurisdiction, [or] when pursuit of an administrative remedy would result in irreparable harm...." Ibid; Green v. City of Oceanside, (1987) 194 Cal.App.3d 212, 222.

The Petition relies on one of these exceptions by alleging that exhaustion of Petitioners’ administrative remedies would be futile. Pet., ¶43. Exhaustion of administrative remedies may be excused if the administrative agency has made it clear what its ruling would be such that an administrative appeal would be futile. Huntington Beach Police Officers' Assn. v. City of Huntington Beach, (1976) 58 Cal.App.3d 492, 499. Futility is shown when “the petitioner can positively state that the [decision maker] has declared what its ruling will be in the particular case.” Gantner & Mattern Co. v. California Employment Com., (“Gantner”) (1941) 17 Cal.2d 314, 318. The futility exception applies only if the administrative process would serve no purpose because the agency’s denial of relief is a fait accompli. See Sea & Sage Audubon Society v. Planning Commission of the City of Anaheim, (“Sea & Sage”) (1983) 34 Cal.3d 412, 418-19.

The futility exception to the exhaustion requirement is a mixed question of law and fact. Econ. Empowerment Foundation v. Quackenbush, (1997) 57 Cal.App.4^th 677, 692. Where facts are pleaded that would show an administrative remedy is futile, the matter is a question of fact to be decided when evidence can be presented. Twain Harte Associates, ltd. v. County of Tuolumne, (1990) 217 Cal.App.3d 71, 90. Allegations contradicted by judicially noticed facts may be disregarded. Intengan v. BAC Home Loans Servicing LP, (2013) 214 Cal.App.4^th 1047, 1055. Evidence that the decision-maker has previously decided cases on similar facts against the petitioner’s position does not show futility. Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 300.

Petitioners rely on Ogo Associates v. City of Torrance, (“Ogo”) (1974) 37 Cal.App.3d 830. There, Ogo Associates applied for a building permit to build low-income apartments financed by the federal government. Id. at 832. The existing zoning permitted construction of the apartments. Id. Ogo applied for a building permit, but before a permit could be issued, the city imposed a moratorium on building permits and dwelling-unit construction in that part of the city. Id. The city then rezoned the area for light manufacturing purposes only. Id.

The Ogo court held that the futility doctrine applied to Ogo’s failure to exhaust its administrative remedies by seeking a variance from the rezoning because Ogo could positively state the city council would not have granted one. Id. at 834. The evidence was overwhelming that the city council rezoned the area because of Ogo’s plans to build the housing project. Id. It was inconceivable the city council would grant a variance for the very project whose existence brought about the enactment of rezoning. Id.

Petitioners argue that, like Ogo, they have included extensive allegations which, taken as true, make clear that the City would not grant the Zoning Application and permit a self-storage development. The Petition alleges that, when Petitioners purchased the Property, it was zoned BP and self-storage was an allowed use. Pet., ¶¶ 17-19. In 2010, the City singled out the Property and SoCal Gas’s adjacent property and rezoned them CC. Pet., ¶¶ 20-22. The City made the spot zoning change knowing that the Property was not suitable for any of the uses permitted under CC zoning, is located next to the Pitchess Detention Center, has limited access to utilities and no sewer, and has limited road access that cannot support retail or related CC uses. Pet., ¶¶ 12-22, 26. The City also knew that the zoning island it created is effectively one parcel because the Property is the only parcel privately owned. Pet., ¶¶ 20-22.

Petitioners submitted a “One Stop Review application in 2018 for a self-storage facility and the DRC’s 2018 Report stated that self-storage is not permitted in the CC zone and would require a zone change, and the “City does not support a Zone change or General Plan Amendment for the subject property.” Pet., ¶23. In response, Petitioners submitted another One Stop Review application seeking preliminary review of a General Plan amendment and a zone change. Pet., ¶25-22. The DRC’s 2022 Report reiterated that a zone chance and General Plan amendment would be required. Pet., ¶¶ 28-31.

In February 2023, Petitioners prepared the Zoning Application for a zone change and General Plan amendment, but the City demanded that Petitioners spend hundreds of thousands of dollars before the Zoning Application would be considered. Pet., ¶32. In March 2023, Petitioners met with the City’s Senior Planner to discuss the Zoning Application and were ultimately informed in May 2023 that the City Manager stated that the City would not support a zone change or General Plan amendment. Pet., ¶39. This was part of a long history of harassment and discrimination against the Seidenglanz family, which partially owns the Property. Pet., ¶47.

From these allegations, Petitioners conclude that they have alleged that the City changed the Property’s zoning knowing that it would thwart the Property’s economic development. They rely on Ogo’s comment that ‘[it is inconceivable that the city would grant a variance for the very project whose prosecutive existence brought about the enactment of rezoning.” 37 Cal.App.3d at 835. Petitioners argue that the Petition’s allegations concerning the DRC’s 2018 and 2022 Reports and the May 2023 communications confirm that a self-storage facility will not be permitted and the City will not grant a zone change and General Plan amendment to do so. Opp. at 6-9.

The Petition’s allegations concerning futility are insufficient as a matter of law. When Petitioners submitted the Zoning Application in February 2023, they initially were informed that they needed to have a specific project in order to obtain a General Plan amendment and rezoning. Pet., ¶37. On March 1, 2023, Senior Planner Peterson changed the City’s position and informed Petitioners that the City could accept the Zoning Application without a specific development project, but only if Petitioners performed a CEQA analysis considering the highest use of the Property. Pet., ¶37. Peterson was supportive of a zone change when the parties met in March 2023, but he later informed Petitioners by email that he spoke to Community Development Director Crawford, who spoke with City Manager Striplin, and the latter stated that the City would under no circumstances support or approve a zone change. Pet., ¶39. Petitioners implicitly acknowledge that they have abandoned the Zoning Application.

At most, Petitioners knew from this triple hearsay alleged that the City Manager was opposed to a General Plan amendment and rezoning. Yet, it is the City Council, not a Planning official or the City Manager, which makes that determination. The City Council decides whether to amend the City’s General Plan or zoning. RJN Ex. B, p. 1-22.[5] Petitioners have no reasonable basis to conclude that the City Council has declared it would rule against the Zooning Application.

It is for this reason that Ogo, supra, 37 Cal.App.3d at 834, is clearly distinguishable. The timing of that case is important. The city council passed the moratorium and zoning amendment expressly to prohibit Ogo’s project to construct low-income apartments. Id. at 832. Ogo’s only administrative remedy was to apply for a variance. Id. at 834. The futility doctrine applied because the city council, the decision-maker that would have to grant a variance, was the same decision-maker that changed the zoning ordinance to block the development. Id. there was no reason to believe the city council would change its mind.

Unlike Ogo, the City Council has done nothing that would suggest the outcome of its decision on Petitioners’ Zoning Application. As the City argues (Reply at 6), it is speculative for the Petition to suggest that, since the City Council adopted the General Plan Update in 2010 and the zone change in 2013, it necessarily would deny Petitioners’ application. See Pet., ¶18. These decade-old City Council decisions do not demonstrate how the City Council would decide Petitioner’s Zoning Application, or any application for a specific development project. Futility is shown when “the petitioner can positively state that the [decision maker] has declared what its ruling will be in the particular case.” Gantner, supra ,17 Cal.2d at 318. The futility exception applies only if the administrative process would serve no purpose because the agency’s denial of relief is a fait accompli. See Sea & Sage, supra, 34 Cal.3d at 418-19. The City Council has not been presented with the pertinent facts and has not declared what its ruling on the Zoning Application would be.

The City correctly relies on Tejon, supra, 223 Cal.App.4th at 149, in which a property owner wanted to build a residence but had been “informed” by a fire department “representative” that a building permit would not be approved unless there was a fire hydrant within 330 feet, and the owner received a DWP estimate that a fire hydrant would cost it $77,000. Id. The owner sued, contending that DWP had an obligation to provide water service and not impose these obligations on property owners. Id.

The city demurred to the initial and amended pleading, contending that the property owner failed to prepare plans or seek a project permit that would enable city departments to determine what conditions to impose on construction of the residence. Id. at 156-57. Complaining of the expense, the property owner contended that it should not have to undergo plan preparation and permitting procedures. Id. at 157. The Tejon decision stated that the courts are unsympathetic to a landowner’s contention that it should be allowed to litigate zoning or building regulations for a specific property without undergoing the complete permitting process. Id. Therefore, exhaustion of administrative remedies was required.

The developer argued that the futility doctrine applied because it is certain that a building permit would be denied unless a hydrant were installed within 300 feet of the proposed residence. Id. at 15. The court held that statements by city representatives other than the body charged with hearing and deciding an application are insufficient to plead futility. Id. The property owner could not say with certainty what charges would be imposed or what conditions would be enforced until the city rendered a final decision based on specific plans for construction. Id. It would be premature for the court to step in before the city had an opportunity to interpret its own rules and building requirements. Id.

Petitioners assert that Tejon is distinguishable because the statements used to support the futility argument were part of a “general conversation” with an “unknown representative of the city.” Id. at 152. Opp. at 9. This distinction is too narrow. Tejon’s holding in part is that an administrative agency’s final position cannot be inferred from general comments of staff, and it cited other authority to that effect. Id. at 158.

The Petition fails to allege facts that would demonstrate that the City Council has declared what its ruling on the Zoning Application, or a specific development application, would be. The futility exception to the exhaustion doctrine does not apply and the demurrer to the first cause of action is sustained.

For a controversy to be ripe, it “must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Pacific Legal Foundation v. California Coastal Commission, (“Pacific Legal Foundation”) (1982) 33 Cal.3d 158, 170. There is a two-part test for ripeness: (1) is the dispute sufficiently concrete? and (2) what is the hardship to the parties of withholding judicial review? Id. at 171. A “hardship” means an “imminent and significant hardship in further delay.” Farm Sanctuary, Inc. v. Dept. of Food & Agriculture, (1998) 63 Cal.App.4th 495, 502.

The City also argues that the administrative mandamus claim is not ripe. Dem. at 14, 15; Reply at 6. The court agrees. An action is not sufficiently concrete if the plaintiff has not completed the administrative mandamus process. This is because the court cannot speculate on what the agency would decide. Pacific Legal Foundation, supra 33 Cal.3d at 172. Petitioners have not submitted a proposed development project and completed the administrative process. Petitioners’ financial cost in completing this administrative process is not a “hardship in further delay”. As a result, the administrative mandamus claim is not ripe.

The Fifth Amendment of the United States Constitution provides private property shall not “be taken for public use, without just compensation.” Similarly, Article 1, section 19 of the California Constitution provides “[p]rivate property may be taken or damaged for public use only when just compensation… has first been paid to, or into court for, the owner.” A land use regulation constitutes a taking that requires compensation if its application denies an owner economically viable use of his or her land. McAllister v. California Coastal Commission, (“McAllister”) (2008) 169 Cal.App.4^th 912, 937.

It is up to the states to set the procedure by which compensation may be sought. Hensler v. City of Glendale, (“Hensler”) (1994) 8 Cal.4th 1, 13. If the alleged taking is regulatory in nature, the property owner must afford the state the opportunity to exempt the property from the allegedly invalid development restriction. Id. The property owner may do so in a challenge to the development restrictions imposed by the administrative agency. Id. A property owner is entitled to a judicial determination whether a final agency action constitutes a taking for purposes of compensation. Id. at 15 (citation omitted). An administrative agency is not competent to decide whether its own action constitutes a taking, and in many cases administrative mandate is not an adequate forum to do so. Id. at 16. Typically, this is done through an inverse compensation action, which may be joined with the administrative mandamus claim. Id. at 16.

California case law has applied the exhaustion requirement to inverse condemnation. In arguing that a final decision has been made for ripeness purposes, the claimant has the heavy burden of setting forth facts that are “clear, complete, and unambiguous” showing that the agency has “drawn the line, clearly and emphatically, as to the sole use to which [the property] may ever be put.” Toigo v. Town of Ross, (1998) 70 Cal. App. 4th 309, 325. If the plaintiff fails to exhaust his or her administrative remedies for mandamus, there also is no ripe takings claim. Hensler, supra, 8 Cal.4th at 10-13. Until a final administrative decision has been made, one which affords the administrative agency and any reviewing body having similar authority the opportunity to amend the agency decision or grant a variance, whether a taking has occurred through application of a land-use regulation to specific property cannot be determined. Toigo v. Town of Ross, supra, 70 Cal.App.4^th at 325. Generally, a final decision requires at least (1) rejection of a formal development plan and (2) denial of a variance or something similar from the controlling regulations. Id. (citing Williamson Planning Comm’n v. Hamilton Bank, (1985) 473 U.S. 172, 187-88).

Because Petitioners have not obtained a final administrative decision on their Zoning Application or a specific development application, the inverse condemnation claim is not ripe.

The demurrer to the Petition is sustained. Petitioners seek leave to amend the Petition to cure any defects. Opp. at 15. They fail to identify any facts they could allege that would cure the defects and leave to amend is denied. An OSC re: dismissal is set for February 15, 2024 at 9:30 a.m.

[1] Petitioners failed to lodge a courtesy copy of their opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Their counsel is admonished to provide courtesy copies in all future filings.

[2] The City explains that the correct name is Development Review Committee, not Design Review Committee. Dem. at 8, n. 1.

[3] The City requests judicial notice of (1) Chapter 1 of the Santa Clarita Community Character & Design Guidelines (“Design Guidelines”), adopted by Resolution 09-19 on March 24, 2009 (RJN Ex. 1); (2) the Introduction to the City’s 2011 General Plan (“General Plan”), including a description of the 2009 Design Guidelines (RJN Ex. B); and (3) the November 17, 2022 DRC Report for Master Case 22-167, One Stop 22-021 (2022 Report) (RJN Ex. C).

Petitioners argue that the mandamus claim “should be decided on the merits, based on a full record.” To the extent that Petitioners are arguing that extra-record evidence is not permitted for their administrative mandamus claim, RJN Exs. 1 and 2 are official City acts which provide the legal operative framework for Petitioners’ claims and are not evidentiary in nature. An agency’s legislative enactments are subject to judicial notice. See Warmington Old Town Associates, L.P. v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 858, n. 3. RJN Ex. 3 would be part of the administrative record. In any event, it is expressly quoted in the Petition and may be judicially noticed. See Ingram v. Flippo, (1999) 74 Cal.App.4^th 1280, 1285, n. 3, disapproved on other grnds., Leon v. County of Riverside, (2023) 14 Cal.5^th 910, 931.

Petitioners also argue that judicial notice does not establish the truth of factual matters in the exhibits. While that is true, RJN Exs. 1-2 are offered to show the operative law and Ex. 3 is offered to show the DRC’s position on Petitioners’ application, not the truth of that position. The requests are granted. Evid. Code §§ 452(b), (c).

[4] Although the City demurs to the administrative mandamus cause of action’s facial challenge to the existing General Plan and zoning as time-barred (Dem. at 11), Petitioners explain that they are making an as-applied challenge, not a facial challenge. Opp. at 3-4. It is undisputed that Petitioners’ as-applied challenge is timely.

[5] The City also cites the Santa Clarita Municipal Code asserting that it requested judicial notice of the relevant sections as Exhibits D and E. Dem. at 9, n. 3. The City’s Request for Judicial Notice does not include any such exhibits.