Filed 7/24/13 CACERF Norco v. City of Norco CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



CACERF NORCO, LLC.,

         Plaintiff and Appellant,                                        E055486

v.                                                                       (Super.Ct.No. RIC10010637)

CITY OF NORCO et al.,                                                    OPINION

         Defendants and Respondents.




         APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge.

Affirmed.

         Cox, Castle & Nicholson, Kenneth B. Bley and Stanley W. Lamport for Plaintiff

and Appellant.

         Harper & Burns and John R. Harper for Defendants and Respondents.

                                               I. INTRODUCTION

         Plaintiff and appellant, CACERF Norco, LLC (CACERF), is the owner of

approximately 428 acres in the City of Norco. It filed the present writ petition and



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declaratory relief/inverse condemnation action against defendants and respondents, City

of Norco and the City Council of the City of Norco (collectively, the City), contending

that changes in the City’s general plan and zoning ordinances resulted in a taking of

CACERF’s property under the Fifth and Fourteenth Amendments. We disagree.

        We affirm the trial court’s denial of CACERF’s petition for writ of mandate and

the judgment entered on the declaratory relief/inverse condemnation action. We find that

to the extent CACERF’s petition is a “facial” challenge to the general plan designation

and zoning ordinance, the regulations do not deprive CACERF of all economically

beneficial or productive use of its land. To the extent CACERF’s attack is an “as

applied” challenge to the general plan designation and zoning ordinance, the claim is not

ripe.

                                        II. FACTS

        The property in question is approximately 428 acres in size. Immediately prior to

the subject general plan amendment and zone change the property was designated general

manufacturing and hillside. Under this land use, 378 acres could be used for

manufacturing and the remaining acres could be used for agricultural and low density

single-family homes.1 The land use designation was a holdover from the County of

Riverside prior to the City’s incorporation. The property was originally developed in


        1Uses allowed in the general manufacturing zone were manufacturing, research
and development, and wholesale and distribution, as well as warehousing. Ancillary uses
were allowed as long as they were incidental to the permitted uses. The hillside
agricultural zone allowed one house for every 10 acres.

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1958 by Wyle Laboratories for military and consumer product safety testing. As a result

of this use, the property became contaminated. Following Wyle Laboratories’s vacation

of the premises, the State Department of Toxic Substances Control began supervising

remediation of the site. As of late 2009, about one-half of the property had been cleaned.

The property is, in essence, vacant with a few remaining Wyle Laboratories buildings.

The site is surrounded on three sides by single-family residential development.

       In 2002, following vacation of the property by Wyle Laboratories, the property

was purchased by CRV SC Norco Partners for $18 million. CRV SC Norco Partners

submitted to the City a specific plan and tentative tract map. During this process it was

discovered that the land was contaminated; as a result, no immediate development was

permitted. In late 2009, the property was obtained in foreclosure by CACERF for

$9,422,707.2

       About this time the City began a process to amend its general plan and zoning

ordinances to create a new preservation and development zone. Under this land use

designation, development would be allowed only after a specific plan had been prepared;

allowed uses involved planned commercial development, planned recreational

development, and planned resort development. This new land use designation was to




       2   EnviroFinance owns the property through CACERF. EnviroFinance was the
initial lender on the project. At some point before the initial submittal by CRV SC Norco
Partners, Lehman Brothers became the primary owner of the property. After the initial
submission by CRV SC Norco Partners and the discovery that the property was
contaminated, Lehman Brothers defaulted on the loan.

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apply to two large parcels of property within the City. One was the CACERF parcel and

the other was a piece of property 475 acres in size, near Lake Norconian.3

       On the day the planning commission approved the general plan amendment and

zoning changes, counsel for CACERF directed a letter to the planning commission

requesting a 30-day continuance. By way of this letter, counsel for CACERF informed

the commission that in CACERF’s opinion, a residential land use designation for the

property was the best use. Thereafter, first readings of the general plan amendment and

zone changes were held before the City council. James Camp appeared at the hearing on

behalf of CACERF. During his presentation, Camp asked the council to continue the

matter because CACERF needed more time to study and understand the various land uses

being proposed. He further stated that CACERF had no immediate plans to develop the

property but that the manufacturing designation was not appropriate.4 On January 20,

2010, the date scheduled for the second reading of the general plan amendment and zone

changes, the council approved creation of the preservation and development zone. It

further approved the zone change relative to the Norconian parcel. As to the CACERF

parcel, the council, at the encouragement of CACERF, continued the second reading for



       3The Norconian site included the Norconian Hotel and Resort, the Naval Surface
Warfare Center, Riverside Community College, and the California Rehabilitation Center.

       4  CACERF also directed a letter to the council informing it that CACERF did not
object to removing the M-2 zoning from its land, but that a total preclusion of residential
development from its land “makes infeasible and uneconomic the preferred primary uses
of the property.”

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purposes of discussing with CACERF the City’s acquisition of the parcel for open space

and conservation.5

          On April 21, the City council, by way of a consent calendar item, approved the

zone change for the CACERF parcel. On the preceding day, CACERF had provided the

City with 215 pages of reports prepared by consultants for CACERF; the reports

communicated that the property could not be put to an “economically beneficial or

productive use” under the new zoning.

          On May 27, 2010, CACERF filed its petition for writ of mandate. Joined with the

petition were causes of action for declaratory and injunctive relief and inverse

condemnation. The trial court was provided with 735 pages of “Administrative Record.”

Following a hearing, the petition was denied. The parties thereafter, and without waiving

their right to appeal, stipulated to the entry of judgment on the remaining causes of

action.

                                       III. ANALYSIS

          Both at the trial level and on appeal, CACERF’s argument is somewhat confusing.

By way of its petition, CACERF pleads that the City’s rezoning “results in an

unconstitutional taking of the Property because it deprives CACERF of all beneficial and

productive use of the Property. The new zoning allows only planned commercial,

recreational and resort projects and expressly prohibits residential development. Because

none of the allowed uses are economically viable, the rezoning renders the Property

          5   At this hearing, Stanley Lamport appeared on behalf of CACERF.

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worthless. [¶] . . . [¶] . . . The only economically viable use for the Property is

residential development.” In its prayer, however, CACERF seeks only to have the court

vacate and set aside its rezoning of the property.

       The incongruity in CACERF’s position is that a vacation by the City of its

rezoning would have no effect on CACERF’s inability to use the property for residential

purposes, the only use CACERF argues would be appropriate. Vacation of the new land

use designation would have the effect of returning the property to a manufacturing

designation, a use which CACERF is already on record before the City as opposing.

       With this said, we address CACERF’s arguments.

                             IV. STANDARD OF REVIEW

       “The adoption or amendment of a general plan is a legislative act. (Gov. Code,

§ 65301.5.) A legislative act is presumed valid, and a city need not make explicit

findings to support its action. [Citations.] A court cannot inquire into the wisdom of a

legislative act or review the merits of a local government’s policy decisions.”

(Federation of Hillside & Canyon Assns. v. City of Los Angeles (2005) 126 Cal.App.4th

1180, 1195.)

       Generally, review of a legislative act under Code of Civil Procedure section 1085

is limited to determining whether the agency’s action was arbitrary, capricious, entirely

without evidentiary support, or procedurally unfair. (Hernandez v. City of Encinitas

(1994) 28 Cal.App.4th 1048, 1059.)




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       Where the factual record is settled, and the challenge is to the constitutionality of

the legislative action, we must engage in an independent review; this is so regardless of

the procedural mechanism by which it reaches us. “Constitutional issues are always

reviewed de novo. [Citation.] Here, the likelihood of prevailing on the merits does

depend upon a question of law, because we are asked to conduct a facial review of the

ordinance to determine whether it is constitutional.” (Vo v. City of Garden Grove (2004)

115 Cal.App.4th 425, 433.)

       “The standard of judicial review with respect to economic regulation has been

clearly established: ‘[L]egislation regulating . . . or otherwise restricting . . . property

rights is within the police power if its operative provisions are reasonably related to the

accomplishment of a legitimate governmental purpose.’ [Citation.] This standard is

consistent with the United States Supreme Court’s . . . observation that ‘[w]here property

interests are adversely affected by zoning, the courts generally have emphasized the

breadth of municipal power to control land use and have sustained the regulation if it is

rationally related to legitimate state concerns and does not deprive the owner of

economically viable use of his property.’ [Citation.]” (Griffin Development Co. v. City

of Oxnard (1985) 39 Cal.3d 256, 264, fn. omitted; see Agins v. City of Tiburon (1980)

447 U.S. 255, 260.)

       Here, CACERF does not argue that the general plan amendment and zoning

ordinance are not rationally related to legitimate state concerns. Rather, its sole argument




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is that the City’s actions deprives it of all viable economic use of its property. We turn to

this issue.

        Allegations of an unconstitutional taking of property can be presented by way of a

“facial” attack on the regulating ordinance or by an “as applied” challenge to the

regulation. (Keystone Bituminous Coal Assn. v. DeBenedictis (1987) 480 U.S. 470, 494-

496.)

        “A facial challenge to the constitutional validity . . . considers only the text of the

measure itself, not its application to the particular circumstances of an individual. . . .

‘“[P]etitioners must demonstrate that the act’s provisions inevitably pose a present total

and fatal conflict with applicable constitutional prohibitions.”’ [Citations.][6] [¶] An as

applied challenge may seek (1) relief from a specific application of a facially valid . . .

ordinance to an individual . . . who [is] under [an] allegedly impermissible present

restraint . . . as a result of the manner or circumstances in which the . . . ordinance has

been applied, or (2) an injunction against future application of the . . . ordinance in the

allegedly impermissible manner . . . . It contemplates analysis of the facts of a particular

case . . . to determine the circumstances in which the . . . ordinance has been applied and

to consider whether in those particular circumstances the application deprived the


        6 As explained in Hodel v. Virginia Surface Min. & Reclam. Assn. (1981) 452
U.S. 264, 295: “Because appellees’ taking claim arose in the context of a facial
challenge, it presented no concrete controversy concerning either application of the Act
to particular surface mining operations or its effect on specific parcels of land. Thus, the
only issue properly before the District Court and, in turn, this Court, is whether the ‘mere
enactment’ of the Surface Mining Act constitutes a taking.”

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individual to whom it was applied of a protected right.” (Tobe v. City of Santa Ana

(1995) 9 Cal.4th 1069, 1084; Avenida San Juan Partnership v. City of San Clemente

(2011) 201 Cal.App.4th 1256, 1277 [“An as applied challenge considers the application

of that law to the particular circumstances of the case.”].)

       At both the trial level and on appeal, CACERF submits that its challenge to the

general plan amendment and zoning ordinance is a facial attack. “The test to be applied

in considering this facial challenge is fairly straightforward. A statute regulating the uses

that can be made of property effects a taking if it ‘denies an owner economically viable

use of his land. . . .’ [Citations.] [¶] Petitioners thus face an uphill battle in making a

facial attack on the Act as a taking.” (Keystone Bituminous Coal Assn. v. DeBenedictis,

supra, 480 U.S. at p. 495.)

       Here, it is clear that CACERF’s facial challenge must fail. In looking at the text of

both the general plan amendment and the implementing zoning ordinance, CACERF is

not denied economically viable uses of its land. There is nothing on the face of the

general plan amendment or ordinance which denies CACERF an economically beneficial

or productive use of its land. (See Penn Central Transp. Co. v. City of New York (1978)

438 U.S. 104, 131 [land use regulations causing a diminution in value, standing alone, do

not establish a “taking”].) Here, the preservation and development zone allows for

planned mixed use commercial/office park projects, planned recreational projects, and

planned resort projects. On its face, CACERF is not deprived of economically viable

uses of its land. The fact that the uses may not be those that CACERF desires, or uses


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from which it can maximize its investment, is beside the point. The general plan

amendment and zone change simply do not facially result in a taking of CACERF’s land

under the Fifth Amendment.

       CACERF’s argument also fails, if construed as an “as applied” challenge. Its

claim is simply not ripe in that it failed to avail itself of ordinary processes by which a

final decision could be obtained as to the application of the relevant land uses to its

property. As explained in Agins, before an as applied challenge lies, the property owner

must submit to the local body a plan of development which is denied. (Agins v. City of

Tiburon, supra, 447 U.S. at p. 260.) “[A] claim that the application of government

regulations effects a taking of a property interest is not ripe until the government entity

charged with implementing the regulations has reached a final decision regarding the

application of the regulations to the property at issue.” (Williamson Co. Regional

Planning v. Hamilton Bank (1985) 473 U.S. 172, 186.) “A final decision by the

responsible state agency informs the constitutional determination whether a regulation

has deprived a landowner of ‘all economically beneficial use’ of the property, [citation],

or defeated the reasonable investment-backed expectations of the landowner to the extent

that a taking has occurred, [citation]. These matters cannot be resolved in definitive

terms until a court knows ‘the extent of permitted development’ on the land in question.”

(Palazzolo v. Rhode Island (2001) 533 U.S. 606, 618.) “Under our ripeness rules a

takings claim based on a law or regulation which is alleged to go too far in burdening

property depends upon the landowner’s first having followed reasonable and necessary


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steps to allow regulatory agencies to exercise their full discretion in considering

development plans for the property, including the opportunity to grant any variances or

waivers allowed by law. As a general rule, until these ordinary processes have been

followed the extent of the restriction on property is not known and a regulatory taking has

not yet been established.” (Id. at pp. 620-621; Williamson Co. Regional Planning v.

Hamilton Bank, supra, at p. 191, fn. omitted [“[U]ntil the [entity] determines that no

variances will be granted, it is impossible . . . to find, on this record, whether [petitioner]

‘will be unable to derive economic benefit’ from the land.”].) And, as expressed in

MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 350: “The local

agencies charged with administering regulations governing property development are

singularly flexible institutions; what they take with the one hand they may give back with

the other.”

       We begin by noting that CACERF’s involvement in the City’s development

process was minimal at best. It did not appear before the planning commission when it

was considering the general plan amendment and zone change. At the first reading of the

amendment and zone change before the City council, a representative for CACERF

requested a continuance so that CACERF could get up to speed with the process. At the

time set for the second reading, a representative appeared for purposes of encouraging the

council to continue the agenda item so as to discuss the possibility of the City acquiring

the property. Three months thereafter, and on the day of the second reading, CACERF,




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without appearing, submitted reports prepared by two separate consultants. Hardly can

this be considered conduct intended to ripen one’s claim.

       While the doctrine of ripeness does not require futile acts by the property owner, it

does require a sense of finality in terms of the uses which will be allowed on the property.

(Palazzolo v. Rhode Island, supra, 533 U.S. at p. 622.) Here, that stage has not been

reached. As indicated by the representative of CACERF at the December 2009 City

council meeting: “We don’t have any immediate plans for the property because we’ve

only owned it a week and a half. . . . [¶] . . . [¶] . . . I’m not here to advocate any

particular plan because we don’t have a plan. . . .” To ripen its “as applied” claim,

CACERF must not only have a plan, it must submit at least some plan which is acted

upon by the entity. Otherwise, the courts are acting in a vacuum.

       As indicated earlier: “The local agencies charged with administering regulations

governing property development are singularly flexible institutions; what they take with

the one hand they may give back with the other.” (MacDonald, Sommer & Frates v. Yolo

County, supra, 477 U.S. at p. 350.) Within the confines of the preservation and

development general plan designation and zoning, there has been no demonstration that it

is not workable. Our record contains reports from Robert Charles Lesser & Co., Real

Estate Advisors, and PFK Consulting. They are relatively generic in nature, analyzing

the demand for office and retail space in the general area and the unfeasibility of resort or

hotel development. There is no discussion in the reports showing that CACERF has




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attempted to work with the City in identifying the types of facilities that may be both

appropriate and workable for the area.

       For its claim to be ripe, CACERF must demonstrate that the City is irrevocably

wedded to the preservation and development designation and that it indeed deprives

CACERF of the economically beneficial or productive use of its land. CACERF has

submitted nothing to the City for purposes of reaching a stage of finality.

       Further, under Government Code section 65358, the general plan may be

amended. CACERF has not sought such an amendment. There is not even a showing of

the submission of a conceptual plan to the City for purposes of residential development.

And while CACERF may think it futile, it clearly is not. As reflected in the October 28,

2009, planning commission minutes: “Member Newton asked what mechanisms are in

place if in the future the City does see the need for residential. [Planning manager] King

said any future property owner could come in for rezoning and that would be at the

discretion of the [C]ity.” Here, CACERF has not followed the reasonable and necessary

steps to afford the City the opportunity to exercise its full discretion. As such, an “as

applied” challenge does not lie.




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                                 V. DISPOSITION

     The judgment is affirmed. Respondents shall recover their costs on appeal.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                           KING
                                                                                  J.


We concur:

RAMIREZ
                     P. J.

MILLER
                        J.




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