A couple of years ago, we posted the complaint (actually, a petition for mandate) alleging a big regulatory takings claim against the County of San Luis Obispo based on the County’s denial of a permit to drill for oil. A very big claim. $6.24 billion big. See “Wow, That’s A Lot of Just Compensation.”
We always wondered what happened to that lawsuit. Now, thanks to our colleagues at the California Eminent Domain Report, we know.
In “How Untimely Service Can Be Deadly To Your Takings Claim,” Ben Rubin reports that in an unpublished decision, the California Court of Appeal affirmed the dismissal of the complaint for failure to timely serve it on the County. The plaintiffs filed the complaint on time, they just didn’t serve it. Read Mr. Rubin’s write up for the details, but here are the highlights:
- The County’s denial of the permit contained a notice that the applicant could seek judicial review, and that “the time within which judicial review must be sought is governed by the provisions of California Code of Civil Procedure section 1094.6 and Chapter 1.09 of the San Luis Obispo County Code.”
- That statute and ordinance require that a complaint be filed within 90 days of the final decision.
- The County’s notice, however, didn’t say anything about the deadline for service of the complaint.
- The plaintiffs filed their complaint within 90 days, but didn’t serve it until 129 days after the final decision.
- Unfortunately, a California statute (Cal. Gov’t Code § 65009) required the complaint also be served within 90 days of the decision.
On that basis, the trial court dismissed (demurred), and the Court of Appeal affirmed, rejecting the plaintiffs’ estoppel, preemption, and waiver claims.
As the Hawaii Supreme Court recently concluded in Kellberg v. Yuen, 319 P.3d 432 (Haw. 2014), the government cannot remain silent when it issues appealable final decisions in cases like this, but it has a due process obligation to inform an applicant in a “clear and conspicuous” notice “how an interested person may challenge that decision.” See also Brody v. Vill. of Port Chester, 434 P.3d 121 (2d Cir. 2005). [Disclosure: we represented the prevailing party in the Kellberg case.]
Here, the County didn’t sit silently by. At least not completely. It informed the applicant that there was one statute and one ordinance that “governed” the time in which judicial review must be sought. But the County’s notice kind of left out the other part of the concept of the timeliness of judicial review, service of the complaint. So it is hard for us to see how the County’s notice that “the time within which judicial review must be sought is governed by [the 90-day filing deadlines]” isn’t woefully incomplete and misleading, and therefore a denial of due process.
The Court of Appeal, however, didn’t see it that way, and held that “[a]lthough it might be better practice to include a reference to section 65009, the County’s failure to do so here provides no basis for us to deem it estopped from asserting the statute as a defense.”
“Better” practice? We’ll say. The Due Process Clause is “better” practice in our book. The government should not be able to mislead by omission on something so criticial about its own procedures.