Land-use litigation is often won or lost before the parties file suit. Parties unaccustomed to land-use litigation may overlook the importance of the administrative process which can result in procedural defects that preclude judicial review. Successful land-use litigation depends on careful and aggressive participation in the administrative process, well before the matter is ever filed as an “appeal” to the California Superior Court.
A superior court reviewing a petition for administrative writ of mandamus sits as a court of appeal. The administrative agency acts as the trier of fact. Thus, rules commonly applied by appellate courts also apply to a superior court petition seeking reversal of an administrative decision.
The first of these rules is that the trial court reviewing a petition for administrative writ of mandate will not consider a legal argument which the parties failed to asset during the administrative process. That means the secret argument you were saving for trial court review will not be heard because this argument was not first posited during the administrative process.Surprise is not a tactic that trial courts will tolerate when reviewing petitions for writ of mandate.
This requirement presents practical difficulties because parties who present exotic legal arguments are not received well during the administrative process. Quoting the latest Supreme Court decisions on procedural due process rarely convinces a planning commission that it should grant a lot line split. Planning commissions, city councils, and boards of supervisors are often concerned with more political issues, such as the potential development's impact on the neighborhood, resource supplies, and the like.
The practical difficulty of presenting legal arguments during the administrative process is exacerbated by the fact that the land developer (nota lawyer) is often the person addressing the administrative body. Parties and their counsel are thus confronted with the dilemma of how to prepare to win an approval at the administrative level, but satisfy procedural requirements for judicial review in case of defeat.
Fortunately, the cases requiring that all legal arguments be asserted during the administrative process do not specify how these legal arguments should be presented. Thus, the best solution to the dilemma is to submit a written statement containing the legal arguments on which a party ultimately will rely if the proposed development is denied.Even if these legal arguments are not reiterated when the land developer addresses the administrative agency, presenting the legal arguments in written form will preserve the arguments for judicial review.
Parties should also present all factual support for their position during the administrative process. This rule emanates from the judicial doctrine which limits judicial review of petitions for writ of mandate to the administrative record. Limiting judicial review to the administrative record also occurs because generally no discovery is permitted in actions seeking writs of administrative mandamus.
2. Exhaust Administrative Remedies
Parties must exhaust all their administrative remedies before seeking judicial review. Constraints of time and money do not, however, always allows developers the luxury of complying strictly with this requirement.Nonetheless, courts construe exceptions to the exhaustion of administrative remedies requirement narrowly. The fact that the respondent agency has denied an identical request from another property owner may be insufficient to separate, though identical, development application though the full administrative process.
3. The Application Should Be Ripe
The doctrine of ripeness is a related, though distinct, requirement with more general application to challenging land-use decisions. Land developers should describe the proposed development fully during the administrative process. Even if the developer exhausts all administrative remedies, failure to propose a complete development will limit the developer's arguments during judicial review.
For example, when a parcel is downzoned to prevent commercial uses, developers may be inclined to cease drafting a development proposal. The practical reason is that developers are reluctant to spend money on architectural and engineering fees to develop plans for a parcel which the country has reserved for open space. Developers logically prefer to wait to see if the country will rezone the property before spending thousands of dollars on a proposed development.
The consequence of this approach, however, limit the arguments the developer can make in court. Developers who fail to submit a development proposal may be limited to presenting only "facial" challenges to the agency action during judicial review. The developer probably will be unable top resent an "as-applied" challenge (i.e., claim that, as applied to a particular property, a statute effects an uncompensated taking) during judicial review.
Further, even if the developer prevails in court, the developer may have difficulty proving compensatory damages. The court will not have had the benefit of reviewing a proposed development project, and will not award speculative damages based on a development proposal that was never submitted tot he appropriate local governing body. Thus, even though developers now have a legal basis for recovering damages for a "temporary" taking a developer's failure to submit a completed development proposal will prevent it from proving such damages during trial. See First English EvangelicalLutheran Church v. County of Los Angeles, 482 US 304 (1987).
4. Draft Findings That Will Withstand Judicial Review
If you are fortunate enough to achieve a favorable decision during the administrative process, you should take steps to ensure that the administrative decision will withstand judicial review. You should offer to assist the local agency in drafting appropriate findings supporting its decision.
Certain agencies may consider such offers as attempts to usurp their powers. In these instances, the proposal should be couched in terms suggesting that the developer is simply identifying the requisite elements. The reviewing court will accord deference to an administrative agency finding. A litigant will be unable to take advantage of this rules unless the agency includes the appropriate findings in its decision. Thus, including all appropriate administrative findings will enhance the prospects that the administrative agency decision will be affirmed.
Parties should not neglect the administrative process even if they expect the hostile agency to decline their proposed development. Ignoring the administrative process may prevent the land developer from obtaining a day in court. If landowners hope to succeed at trial, they must begin actively pursuing that goal during the administrative process.
The firm is pleased to report that in a hard fought matter spanning eight years, after a trial, and after four years on appeal, the California Court of Appeal ruled in favor of Tong Robbins’ clients, holding, in plain language, “We agree with plaintiffs.”
Much litigation is consumed in discovery, the formal process of asking questions and obtaining answers. Discovery responses are required to be code compliant, i.e. in accord with the provisions of the California Discovery Act. Failure to make code compliant responses is an easy way for a respondent to lose a discovery motion; and demanding code compliance is an easy way for the propounding party to win.
Sometimes after a plaintiff has lost a particularly acrimonious action the defendant will sue back, arguing that the original lawsuit was frivolous, brought in bad faith, malicious, or otherwise improper. In this second action, the former plaintiff (now defendant) will typically defend by arguing that she did nothing wrong; she was simply following her attorney’s advice. This is not the Nuremberg defense. It is known as the “advice of counsel” affirmative defense.
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