Summary of a Recent
Judicial Development in
Urbanization & Agriculture

Delayed Approval of Electrical Permit Was Not
a Temporary Regulatory Taking

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Shaw v. County of Santa Cruz, 88 Cal. Rptr. 3d 186, 2008 WL 5274617 (Cal. Ct. App. 2008), the California Court of Appeals held that the plaintiffs had failed to prove that a county's delayed approval of an electrical permit amounted to a compensable temporary regulatory taking, and that by acquiescing to the trial court's order of judgment the plaintiffs had waived their right to challenge the court's dismissal of their remaining tort claims.

Background

The plaintiffs applied to the County of Santa Cruz for a permit to connect 400 amperes of electrical power to their undeveloped 74-acre lot, principally to power a new well that they had constructed under a separate permit to do so. Id. at *1. The County denied the application based on its construction of a local zoning ordinance that precluded issuance of a ministerial permit because the property lacked structures, and the plaintiffs brought claims against the County and two of its employees for inverse condemnation. Id. They also asserted claims of trespass, nuisance, and negligence, based on their allegations that the County had caused the spread of foreign weeds on the property by dumping street sweepings on a dead-end county road located next to the property. Id.

The trial court rejected the County's basis for denying the electrical permit and granted the plaintiffs relief. Id. The County then issued the permit and the plaintiffs connected power to their well, which had been powered in the interim by a generator. Id. In a separate trial on the plaintiffs' remaining claims, the trial court granted the County's motion in limine to bifurcate the issue of liability in the plaintiffs' inverse condemnation claim, and upon the stipulation of the parties, the court also concurrently tried liability issues in connection with the tort claims. Id. The court issued a Memorandum of Decision in the County's favor on the bifurcated issues, and requested the County to prepare a form of judgment. Id. at *2. The County submitted a proposed judgment to the plaintiffs' counsel that incorporated factual findings from the memorandum decision, gave judgment to the County, and dismissed the plaintiffs' entire complaint, including the claims that remained to be tried, with prejudice. Id. The plaintiffs' counsel informed the court that he had no objection to the form of the judgment, which the court then signed and entered. Id. The plaintiffs never requested that their remaining claims be tried rather than dismissed, nor did they make any post-trial motions or requests that the court vacate the dismissal of their constitutional violation claims that were never tried or dispositively ruled on by the court. Id. They ultimately appealed from the judgment, challenging the court's disposition of their claims for inverse condemnation, nuisance, and trespass. Id. They also claimed that the court erred by excluding evidence during the course of the bifurcated trial, and they alleged that the court erroneously disposed of their federal claims for violation of civil rights and due process on the basis that the claims were not ripe. Id.

Analysis and Holdings

The appellate court found no error in the trial court's handling of the bifurcated trial and concluded that the judgment in favor of the County on the tried claims was legally correct and supported by substantial evidence. Id. at *28, *30-31. The trial court's finding that the County's initial denial of the plaintiffs' application did not constitute a temporary regulatory taking was supported by evidence that much of the delay was due to the plaintiffs' own desire to conduct discovery, that the County was always willing to entertain the application under a discretionary rather than ministerial basis, and that the plaintiffs had continued to use their property for the very same purposes throughout the entire period between their permit application and the time of trial as they had prior to filing their application. Id. at *24-28. The appellate court further concluded that the plaintiffs acquiesced in the court's ultimate dismissal of their remaining claims with prejudice by failing to request that the claims be tried after the bifurcated portion of the trial had concluded or otherwise objecting to the dismissal of the claims in the judgment or seeking to vacate that dismissal, and they had therefore forfeited their right to challenge the asserted errors. Id. at *37. The court therefore affirmed the judgment granting dismissal of the plaintiffs' claims. Id.

The case was decided on December 19, 2008.