The Court of Appeal has recently reminded land use practitioners of an important deadline when pursuing a takings claim: A takings challenge based on a land use determination must be filed within 90 days of that determination even though a claim for resulting damages may be asserted later. If not filed within the 90-day period, the takings claim is barred. (Honchariw v. County of Stanislaus (5th Dist. 2015) ____ Cal.App.4th ______ (Court of Appeal No. F069145).)
The starting point in the analysis is Government Code section 66499.37 which imposes a 90 day limitation period on: “any action or proceeding to attack, review, set aside, void, or annul the decision of an advisory agency, appeal board, legislative body, concerning a subdivision, or any of the proceedings, acts or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality, or validity of any condition attached thereto . . . .” This statute bars a challenge to the propriety of a land use determination if not brought within the specified 90 day period. However – and this is what the Honchariw case reminds us – this limitation period also governs claims that the decision amounts to a regulatory taking in violation of the Fifth Amendment to the United States Constitution and/or Article I, Section 19(a) of the California Constitution.
In Hensler v. City of Glendale (1994) 8 Cal.4th 1, the California Supreme Court held that an inverse condemnation claim asserting the unconstitutional application of a land use decision was subject to the 90 day statute of limitation “unless it alleges the existence of a final judgment establishing that there has been a compensable taking of the plaintiff’s land.” The Supreme Court noted that the legislative intent behind section 66499.37 was clear, namely, to ensure that challenges to land use decisions are asserted promptly, and to give the local entity an opportunity to rescind its action rather than pay compensation for a taking. If section 66499.37 does not apply, the generally applicable limitation period to assert a claim for “damage” to property is three years, and for a “taking” of property, five years. (See, e.g., Bookout v. State ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1483.)
However, Hensler did not require that the initial takings challenge include a claim for damages, and later cases have confirmed that a two step procedure may be used – that is, the first step of filing an action within the 90 day period challenging the land use decision as a taking, and the second step of filing an action for damages governed by the longer statute of limitation. Of note, the question whether a taking has occurred is for a judge to decide, while the question of damages is for a jury. Thus, a property owner can elect to “split” his or her regulatory takings claim into “liability” and “damages” actions. The property owner can also elect to join both claims in one action, in which case there will typically be a bifurcated proceeding – a first “liability” phase decided by the judge, and a second “damages” phase decided by a jury. But under either scenario, the property owner must assert the claim that the land use decision is a compensable taking within the short 90-day limitation period.
In Honchariw, the property owner, Nicholas Honchariw, filed a writ of mandate challenging the denial of a vesting tentative map by the County of Stanislaus within the requisite 90 day period, but the mandate action did not assert that the action was an unconstitutional taking. After an appeal, the writ of mandate was issued, and the court set aside the denial of the vesting tentative map. Following issuance of the writ, the County approved the project. Seven months later, Honchariw filed an action for inverse condemnation. However, because Honchariw had not obtained a prior judgment (in the mandate action) finding a compensable taking, the Court sustained a demurrer to the complaint. Accordingly, Honchariw was barred from asserting a takings claim.
Honchariw illuminates a potential trap for the unwary. Namely, if the challenged land use decision constitutes an unconstitutional taking, that issue must be raised within the 90 day period generally applicable to actions challenging land use decisions. If it is not, the right to assert a regulatory taking claim is lost. A petition for review is pending with the California Supreme Court.