By David M. Greenwald
Davis, CA – On Monday, David Taormino, in an expected action, filed a suit against the city attempting to compel them to process the Palomino Place application.
The city pushed back, arguing basically that the application has been deemed incomplete and it had been a moving a target.
The city responded, “The City has not taken any formal action to deny the project, nor has the City refused to process Mr. Taormino’s application; on the contrary, the City has informed Mr. Taormino of the next steps required to in order to complete his subdivision map application.”
On September 15, Taormino’s legal counsel sent a letter to the City stating his intention to proceed with his project under “Builders’ Remedy” without seeking any legislative approvals for his project.
In the letter, Matt Keasling of Taylor and Wiley noted that they were removing a “requested general plan amendment to residential land use designation.”
He writes that “the City has repeatedly indicated that such legislation actions afford it unfettered discretion as to how, when and if it will process the Palomino Place application.” He said, “With the removal of the requested general plan amendment… processing of the remaining Palomino Place entitlements is purely adjudicative in nature without any request for legislative action.”
Perhaps of more interest to me, and eventually to the community, is another aspect of this.
Attorney Matt Keasling also noted a second complaint would potentially be filed under Section 1983 arguing that the council has violated Taormino’s constitutionally protected civil rights.
He argues that this constitutes “a regulatory taking of property rights without just compensation” and a “procedural due process violation stemming from among other thing, bias” and he alleges “retaliatory conduct by the City serving no legitimate governmental function.”
While they are not taking on Measure J directly, I have long believed that the notion of “regulatory taking of property rights without just compensation” is a legal avenue to challenge Measure J itself.
A few years ago, I noted the TRPA case from 2002: Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).
In that case, there was a 32-month moratorium on development.
The plaintiffs in that case, “real estate owners affected by the moratoria and an association representing such owners, ﬁled parallel suits, later consolidated, claiming that TRPA’s actions constituted a taking of their property without just compensation.”
The courts split on whether that moratorium constituted an unlawful taking. Ultimately, the US Supreme Court in a 6-3 ruling overturned a lower court ruling that “the moratoria did constitute a taking under the categorical rule” because “TRPA temporarily deprived petitioners of all economically viable use of their land. On appeal, TRPA successfully challenged the District Court’s takings determination.”
Arguing the TRPA case was John Roberts—now Chief Justice of the US Supreme Court.
Also of note, the dissenters were the three right-winger justices—Rehnquist, Thomas and Scalia. Naturally, one might think given, the present makeup of the court, they might be inclined to overrule the 2002 decision.
How similar is Measure J to a 32-month moratorium? On the one hand, you can easily argue that there is no hard barrier to development implemented in Measure J. It simply has to gain the vote of the public.
On the other hand, you can argue that Measure J has effectively foreclosed peripheral development for 25 years and therefore, given the demographics of the community, is actually a lot more onerous than a 32-month moratorium.
What struck me though was the language of Taormino’s attorney, tapped into the same language at issue in the TRPA case.
To be clear, Taormino is not challenging Measure J here. Nor is he intending to challenge Measure J in the future.
However, nothing would stop California YIMBY or even Legal Services from coming in with a lawsuit in the future—particularly if the city fails to address its rezoning.
There is also no reason to believe that the state itself—as they have elsewhere—wouldn’t come in with a challenge to Measure J, arguing that it is causing the city to violate recent state laws attempting to address the housing crisis.
This lawsuit itself doesn’t threaten Measure J, but it could open the door for one that does.