In Black v. City of Palos Verdes, published September 6, 2018, the Second District Court of Appeal, Division 1 affirmed the trial court's decision denying a petition for a writ of mandate and finding that the defendant city's moratorium on construction in a landslide area was not a regulatory taking. The city had areas where ancient landslides were active. A previous development moratorium ordinance that required property owners to engage in expensive private testing to establish that the area was stable (which would have been futile, since the city found the area was not stable) was found unconstitutional. The city repealed the ordinance, and amended its moratorium to allow building in the landslide area provided that an exemption permit was approved by the city, the project complied with the city code's mitigation provisions, and the owner submitted any studies the city required to demonstrate the development would not exacerbate the existing situation. A group of landowners filed a petition for writ of mandamus and a complaint for inverse condemnation seeking to compel the city to take certain actions concerning development in the landslide area. One landowner submitted an application for an exception to the moratorium before the suit was filed. The record did not show what action was taken on the application. The landowner settled with the city and was no longer a party to the suit.
The appellate court ruled that the trial court properly ruled against the landowners. The landowners' facial attack against the moratorium failed, because it was not a regulation that went too far. The landowners could not prevail on an as-applied challenge, because they had not exhausted the administrative remedies available by applying for an exception to the moratorium. They failed to demonstrate that exhausting those remedies would be futile. They could not rely on the previous litigation as precedent for futility, because the ordinance on which the previous case was based had been repealed and the moratorium amended.
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