In short, in 2002 the City approved permits for both lots despite determinations the San Diego County Regional Airport Authority’s determination the projects were incompatible with the airport. The developer completed construction of a commercial building on one of the lots in 2005, but the second permit expired in 2012 without commencement of any construction. The developer filed an application to restart the process for the second lot, but by that time the Authority had adopted an Airport Land Use Compatibility Plan that designated the property within a higher risk safety zone. Thus, despite its earlier decision to override the Authority’s objections under the predecessor plan to the ALUCP, the City now refused to do so.
The developer sued the airport and the county, but not the city. Bryan continues:
The Court noted that the developer’s argument “muddles” the type of taking he claimed to be an issue in the case and rejected his argument that the case law supports a separate category of “disguised” regulatory takings. Moreover, the Court held that the developer failed to satisfy an important first step in any regulatory takings analysis, which is to show that the decision at issue was “a sufficiently final land use determination” to support a takings claim. Here, the City was the land use agency vested with the authority to make final land use decisions, not the Authority, which had no such power.
The court noted that any takings claim needed to be against the city, which was the entity with actual land use regulatory power: "We conclude the trial court properly entered summary judgment in favor of the County and the Authority on the ground that undisputed evidence shows there was no taking by these defendants. To the extent Durkin has any arguable claim, which we express no opinion on, it would be against the City." Slip op. at 3.
The owner also asserted a Klopping claim for precondemnation conduct, which the court rejected because the airport didn't make a public announcement of its intent to acquire the property. The owner claimed the airport's safety plan (the ALUCP) was it's announcement, bu the court concluded that was just a plan, and the airport didn't expressly or implicitly intend to actually acquire and land. Sometimes a safety plan is just a safety plan.
As Bryan concludes,
Dryden Oaks is an interesting opinion with a helpful discussion of the regulatory takings and pre-condemnation damages but ultimately breaks no new ground for future cases. The case is a good reminder, however, of the complexities of this area of the law and the importance of pleading takings claims clearly in light of the well-established doctrines it discusses.
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