Black v. City of Rancho Palos Verdes

Filed 9/6/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SUZANNE J. BLACK et al., B285135
Plaintiffs and (Los Angeles County
Appellants, Super. Ct. No. BS159447)
v.
CITY OF RANCHO PALOS
VERDES,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Amy D. Hogue, Judge. Affirmed.
Crockett & Associates and Robert D. Crockett for Plaintiffs
and Appellants.
Aleshire & Wynder, David J. Aleshire, and June S. Ailin for
Defendant and Respondent.
____________________________
The appellants (landowners) own eight lots in an area of
Rancho Palos Verdes that is the subject of a 1978 building
moratorium based on the resurgence of an ancient landslide.1 In
the trial court, the landowners sought relief from the building
moratorium and damages for inverse condemnation primarily on
the basis of our opinion in Monks v. City of Rancho Palos Verdes
(2008) 167 Cal. App. 4th 263 (Monks II). Based on their erroneous
interpretation of Monks II, the landowners did not first apply to
the city for permission to build on their lots.
The landowners argued that Monks II absolved them of the
need to exhaust administrative remedies or, alternatively, that
exhausting administrative remedies would be futile. The trial
court rejected those arguments and entered judgment for the city.
We also reject those arguments and affirm the trial court’s
judgment.
1 This litigation was initiated by Jason and Laura Parks,
Suzanne Black and Michael Griffith, Andrea Joannou, Arizona
Land Associates, Subhash and Jennifer Mendonca, Jerry and
Sandra Johnson, George and Leeane Twidwell, Judith King, Neil
Siegel and the Siegel and Friend Trust, Charles Parks, Jr., the
S.J. Parks Trust, and Michael and Norma Nopper. Andrea
Joannou dismissed her complaint on July 26, 2016. Laura and
Jason Parks, Charles Parks, Jr., and the S.J. Parks Trust
dismissed their complaint on August 25, 2016. Arizona Land
Associates dismissed its complaint on February 14, 2017.
Melinda Politeo filed a complaint in intervention and petition for
writ of mandate on June 28, 2017. The Third Amended Petition
and the Complaint in Intervention—the basis of the trial court’s
hearing—together represented eight parcels located in the area
described below as “Zone 2.”
2
BACKGROUND
Because much of the landowners’ argument relies on
Monks II and because our holdings in Monks II were dependent
on the background of that case, we draw on that opinion for
background here.
A. The Landslides
Between approximately 100,000 and 120,000 years ago,
there was a landslide in what is now the City of Rancho Palos
Verdes. The landslide covered two square miles on the south
central flank of the Palos Verdes Peninsula. Until relatively
recently, the landslide was inactive and presented no problems.
The area became populated with homes.
In August 1957, an area in the ancient landslide, east and
southeast of the landowners’ lots, began to move; this area is
commonly known as the Portuguese Bend landslide. Between
January 1974 and March 1976, another area in the ancient
landslide, south and southwest of plaintiffs’ lots, began to move;
this area is commonly known as the Abalone Cove landslide.
Both remain active.
B. The City’s Response to the Landslides
1. The Moratorium
On September 5, 1978, the city council enacted an urgency
ordinance prohibiting the development of property in the ancient
landslide area. The ordinance and subsequent amendments
created categories of exceptions to and exclusions from the
moratorium. (See Rancho Palos Verdes Mun. Code, §§ 15.20.040,
15.20.100.)
2. The Ehlig Memorandum
On May 26, 1993, Perry Ehlig, the city geologist, sent a
memorandum to the city’s director of public works proposing that
3
the moratorium area be divided into eight zones for purposes of
discussing remediation efforts and residential development.
Ehlig explained that each zone has its own unique
characteristics. “Zone 1” consists of about 550 acres of
“[u]nsubdivided land unaffected by large historic landslides and
[is] located uphill or to the west of subdivided areas.” It is the
northern most zone and curves downward to the southwest,
extending to the ocean. Zone 1 is the western border for the
entire moratorium area. Zone 2, which covers approximately 130
acres, consists of “[s]ubdivided land unaffected by large historic
landslides”; it is located below Zone 1. “Zone 6” occupies the
eastern portion of the moratorium area, covers about 210 acres,
and includes parts of the Portuguese Bend landslide; it touches
Zone 2’s eastern border where Zone 2 is approximately 425 feet
from north to south. “Zone 3,” the smallest zone with about 15
acres, is “[u]nsubdivided land unaffected by large historic
landslides and [is] located seaward of Sweetbay Road”; at its
northern most point, Zone 3 abuts about one-fourth of the
southeastern line of Zone 2. “Zone 5,” approximately 90 acres in
size, is “[l]and affected by the Abalone Cove landslide and
adjacent land where minor movement has occurred due to loss of
lateral support”; the northern portion of Zone 5 runs along the
south central line of Zone 2. In short, Zone 2 is bounded by Zone
1 to the north, Zone 6 to the east, Zone 3 to the southeast, Zone 5
due south, and Zone 1 to the southwest and the west. (Zones 4
and 8 are to the east of Zone 6 and do not touch Zone 2; Zone 7
runs along the shoreline, below Zone 6.)
Ehlig’s memorandum stated that certain lots in Zone 2
“could be developed without adversely affecting the stability of
the large ancient landslide. In fact, if development were
4
combined with installation of additional wells, stability would be
improved. Most lots can be developed with minimal grading and
without a net import or export of earth. Such grading would have
no impact on the stability of the deep-seated slide. [¶] Ground
water is the only variable within Zone 2 which affects its
stability. Zone 2 currently contacts one monitoring well and four
producing[, or dewatering,] wells. Eight to ten more monitoring
wells are needed to provide a detailed picture of ground water
conditions within Zone 2. Four to six more producing wells are
needed to better control ground water conditions. If the costs of
the needed wells were funded from fees paid for permission to
develop vacant lots, development would improve the stability of
the large ancient landslide.”
3. Zone 2 and the Factor of Safety
Discussions between city officials and lot owners in Zone 2
sometimes focused on the “factor of safety,” a geotechnical term
used to explain the stability of a parcel of land. The factor of
safety is expressed as a number reflecting the relationship
between the physical factors that cause instability and those that
aid stability. A safety factor of 1.0 indicates that the instability
forces are equal to the stability forces, and the property is
therefore considered “barely stable or almost unstable.” A safety
factor of 1.5 means that the forces of stability are at least 50
percent greater than the forces that cause instability. An area
with a factor of safety greater than 1.0 is stable by definition.
Nevertheless, because a safety factor cannot be calculated with
precision, a factor of at least 1.5 provides an important margin of
error and is accepted as the standard factor of safety by
geotechnical professionals for residential construction. A smaller
margin of error—a lower factor of safety—may be appropriate for
5
construction if more is known about the geology of a particular
area, for example, that the groundwater is under control. For
purposes of our opinions in the Monks cases and this case, a
“local” or “localized” factor of safety refers to the stability of a
single lot in Zone 2; a “gross” safety factor refers to Zone 2 in its
entirety.
As outlined in more detail in Monks II, the city continued to
study Zone 2 and the potential for development after passing the
moratorium, and eventually installed utilities for the vacant lots
in Zone 2, namely, gas, electric, and water. The sewer system
was completed in late 2001. On January 16, 2002, the plaintiffs
in the Monks case filed an application with the city’s department
of planning, building, and code enforcement, requesting an
exclusion from the moratorium.
4. Approval of Resolution No. 2002-43
On June 12, 2002, while the Monks plaintiffs’ application
was pending, the city council approved resolution No. 2002-43.
The resolution, which flowed from the city’s continued study of
Zone 2’s landslide issues, provided that “the City Council is
directing City Staff to continue to deny requests for development
permits for new homes in the Zone 2 area . . . until an applicant
submits a complete Landslide Moratorium Exclusion application”
that established a gross safety factor of 1.5 or higher. City
officials understood that a geological study to determine the
safety factor of Zone 2 would cost somewhere between $500,000
and $1 million, if not more.
C. The Monks Litigation
1. Monks I
In light of resolution No. 2002-43, the Monks plaintiffs
decided not to pursue their pending application for an exclusion
6
from the moratorium. Instead, on July 10, 2002, they filed a
petition for writ of administrative mandate and a complaint for
inverse condemnation.
The Monks plaintiffs argued that the city council had
abused its discretion in approving resolution No. 2002-43 and
that the resolution constituted a “taking” within the meaning of
article I, section 19 of the California Constitution. The Monks
plaintiffs stated that they “have had no opportunity to testify, to
offer opinions of their own experts, or to question City officials
and consultants,” and if “ ‘the administrative record is not an
adequate basis on which to determine if the challenged action
constitutes a taking’ . . . , plaintiffs reserve their right to take
discovery and introduce additional evidence, particularly in the
form of their own testimony, the testimony of experts, and the
examination of City officials.”
Based only on the administrative record—documents
related to the May 20, 2002 hearing before the city council—and
oral argument, the trial court denied the writ petition and
determined that resolution No. 2002-43 did not constitute a
taking.
On appeal, the city argued that the takings claim was not
ripe because the plaintiffs had not exhausted their
administrative remedies. (Monks v. City of Rancho Palos Verdes
(Feb. 23, 2005, B172698) [nonpub. opn.] at pp. 17-19 (Monks I).)
We reviewed exhaustion of administrative remedies and
exceptions to that requirement in detail. In the context of the
Monks plaintiffs’ challenge to “the requirement that they show a
safety factor of 1.5 for the entire zone” and their argument that “a
lower safety factor should be used and that the safety factor of an
individual lot, not the zone, should be determinative,” we found
7
that resolution No. 2002-43 and the moratorium, taken together,
rendered exhaustion of administrative remedies futile. (Monks I,
supra, at p. 19.) We reversed the trial court’s judgment and
remanded the case for a trial on the takings claim. (Monks I,
supra, at pp. 7-9; Monks II, supra, 167 Cal.App.4th at p. 284.)
2. Monks II
On remand, the trial court tried the plaintiffs’ takings
claim. During the trial, the parties settled the plaintiffs’
temporary takings claim, leaving the permanent takings claim
for determination. (Monks II, supra, 167 Cal.App.4th at p. 293.)
The trial court “ultimately concluded that plaintiffs’ claim of a
permanent taking failed because, under state nuisance law, ‘the
potential for significant land movement in Zone 2, however
minor, can only be deemed to constitute . . . a substantial and
reasonable interference [with collective social interests].’ The
[trial] court also found that the moratorium did ‘not go too far in
regulating plaintiffs’ . . . interests’ in light of its important
nature, its negligible effect on permitted uses, and its lack of
interference with plaintiffs’ reasonable investment-backed
expectations.” (Ibid.)
On the second appeal, which resulted in the published
opinion the landowners here rely upon so heavily, we again
reversed the trial court’s judgment. We concluded that by
requiring the plaintiffs to establish a gross (rather than local)
safety factor of at least 1.5, “the city deprived plaintiffs’ land of
all economically beneficial use without proving a justification
therefor under state principles of nuisance or property law,” and
had therefore violated the state takings clause. (Monks II, supra,
167 Cal.App.4th at p. 303.) We remanded and directed the trial
8
court to “determine an appropriate remedy for the permanent
taking exacted by the city.” (Id. at p. 310.)
3. Monks III
We issued our opinion in Monks II in October 2008. On
January 21, 2009, the city repealed resolution No. 2002-43. The
city also amended the moratorium to except the Monks plaintiffs
from the moratorium “provided[] that a landslide moratorium
exception permit is approved by the director, and provided that
the project complies with the criteria set forth in Section
15.20.050 (Landslide Mitigation Measures Required) . . . .” The
new Monks exception required that “[s]uch projects shall qualify
for a landslide moratorium exception permit only if all applicable
requirements of this code are satisfied,” and only after the
particular Monks plaintiff “submit[ted] to the director [of city
planning] any geological or geotechnical studies reasonably
required by the city to demonstrate to the satisfaction of the city
geotechnical staff that the proposed project will not aggravate the
existing situation.” (Rancho Palos Verdes Mun. Code, §
15.20.040, subd. (P).)
Although the city opted on remand “to allow plaintiffs to
build homes on their lots[, p]laintiffs asserted they were also
entitled to compensation for the decline in the fair market value
of their properties. The trial court disagreed, stating that the city
had remedied the permanent taking by repealing [resolution No.
2002-43] and enacting a new resolution allowing plaintiffs to
develop their properties.” (Monks v. City of Rancho Palos Verdes
(Mar. 28, 2013, B237221) [nonpub. opn.] (Monks III).) We agreed
with the trial court and affirmed.
9
D. The Landowners’ Dispute – The Instant Case
In October 2014, Andrea Joannou applied for permission to
build a single-family residence on a lot she owned in Zone 2. The
city responded with a completed “Geotechnical Investigation
Report Review Checklist” that required “additional input” from
Joannou.2 The record does not disclose any further action on
Joannou’s application, and no other landowner ever applied for
permission to build.3
On November 15, 2015, the landowners filed their original
petition for writ of mandamus and complaint for inverse
condemnation. After a series of demurrers and amendments to
2 The checklist the city provided to Joannou states: “It is
unclear from the report if the applicant is submitting the report
for an exception or exclusion to the Moratorium Land Use Section
of the Building Code. Please clarify.”
3 Joannou is no longer a party to this litigation. In June
2014, Joannou and the city settled a separate lawsuit regarding
property Joannou owned in a different zone with a single-family
residence that had “moved over the years since [it was built in]
1956” to a location “several hundred feet away from its original
location” and onto a neighboring lot. As part of the settlement,
the city agreed to credit Joannou for fees she had paid for permits
to rebuild on the original lot in the event she chose to seek
permits to rebuild either on that lot or on the lot she owned in
Zone 2. Joannou submitted an application for permission to build
on her Zone 2 property in October 2014. The landowners
continue to rely on her application for permission to build on her
Zone 2 property and the city’s geotechnical investigation report
review checklist as evidence of the futility of exhaustion of
administrative remedies. The city’s response, however, can be
construed as nothing more than a request for more information
from Joannou.
10
the petition and complaint spanning about a year, the parties
stipulated to the filing of a third amended petition and
complaint—the operative complaint—in March 2017 requesting a
writ of mandamus ordering the city to take certain actions
regarding undeveloped lots in Zone 2 and alleging a single cause
of action for inverse condemnations ordering the city to take
certain actions regarding undeveloped lots in Zone 2.
In November 2016, after the litigation had been pending for
more than a year, Jennifer Mendonca “approached the [c]ity’s
planning department desk, [and was told] that in order to qualify
for an exclusion to build [her] home on [her] lot in Zone 2,
[Mendonca] would need to submit a geotechnical report analyzing
the impact [her] home would have on the region-wide Portuguese
Bend landslide, showing the proposed structure would satisfy a
safety factor of 1.5.” An e-mail from an assistant city planner to
Mendonca dated November 29, 2016, and specifically regarding
Mendonca’s lot explains that “[n]o other new developments are
allowed [in Zone 2], unless the applicant can demonstrate they
fall under one of the Exceptions listed in [Rancho Palos Verdes
Municipal Code] Chapter 15.20.” The record contains no
application and reflects no city response to any application
submitted by or on behalf of Mendonca for any exception or
exclusion.
The record also contains a November 2016 e-mail that
purports to be from an associate city planner to a commercial real
estate broker regarding his client’s property in Zone 2. The
e-mail states: “Please . . . note that because the property is
within the City’s Landslide Moratorium Area, you would not be
able to construct a new house anywhere on this lot, even with the
11
proper geotechnical reports.”4 The record discloses no application
regarding the property about which the broker stated he
inquired.
In August 2016, the city responded to a special
interrogatory the landowners propounded regarding exclusions
under Rancho Palos Verdes Municipal Code, section 15.20.100,
with the following statement: “To date, [the city] has not found
any Landslide Moratorium Exclusions granted under Municipal
Code section 15.20.100.” In February 2017, Ara Mihranian, the
city’s director of community development, testified that since the
Monks case no applications for exclusion from the moratorium
had been filed.5
4 The e-mail is undated, contains no information in the
“from” field, and offers no identifying information about the
specific lot to which it refers. The trial court sustained the city’s
objection to the e-mail and to the portion of the real estate
broker’s declaration purporting to contextualize and authenticate
the e-mail. The landowners have not appealed the trial court’s
evidentiary ruling.
5 The record is silent regarding whether there were any
applications before our Monks opinions. The record indicates that
Neil Siegel purchased his property in the early 1990’s and
“periodically re-engaged . . . over the years” with the city’s
director of planning regarding permission to build on his lot.
“The substance of those communications,” according to Siegel,
“was that ‘his hands were tied[,]’ and that the City Council would
be establishing requirements for how to go about obtaining
permission to develop, that at present no procedure existed for
obtaining permission to develop this lot, but that the City Council
would eventually establish such procedures; but that no
application for development of this lot could be accepted by his
office at this time.” Siegel’s declaration, dated February 9, 2017,
12
On July 28, 2017, the trial court conducted a hearing on the
petition for writ of mandamus and complaint. The trial court
denied the petition for writ of mandate and found that the
landowners had failed to demonstrate that the moratorium
constituted an unlawful taking. In the trial court’s view, the
landowners did not demonstrate that the moratorium, “on its
face, prevent[ed] all economic use of properties located in Zone 2.”
The trial court further noted that the landowners needed to
“exhaust administrative remedies before the [trial court could]
determine whether, as applied to the[ landowners’] properties
and their intended uses for the properties, there is an unlawful
taking.”
On August 22, 2017, the trial court entered judgment for
the city. The landowners timely appealed.
DISCUSSION
The landowners contend that they do not challenge the
trial court’s determination regarding exhaustion of
administrative remedies. They “instead challenge the
constitutionality of the moratorium.” In so doing, however, the
landowners necessarily challenge the trial court’s determination
that they must exhaust administrative remedies. We explain
below.
A. Constitutional Challenge
Assuming the landowners do not challenge the trial court’s
determination that they must exhaust, but have not exhausted,
administrative remedies, the landowners’ constitutional
does not specify when “at present” and “at this time” were in the
context of Siegel’s “periodic re-engagement” over the three
referenced decades.
13
challenge to the moratorium is a facial challenge. (See Hensler v.
City of Glendale (1994) 8 Cal. 4th 1, 11 (Hensler).) Unless and
until there is an administrative application of the moratorium or
evidence establishing the futility of exhaustion, we have no
means to determine the constitutionality of that application.
But the basis of the landowners’ facial challenge to Rancho
Palos Verdes Municipal Code, chapter 15.20 is not clear from the
landowners’ briefs. The challenge appears to be based on our
finding in Monks II that the moratorium coupled with the city’s
then-existing resolution No. 2002-43 constituted a categorical
taking. (See Monks II, supra, 167 Cal.App.4th at p. 305.)
The Rancho Palos Verdes Municipal Code lays out a
detailed administrative procedure by which an applicant can seek
an exclusion from the city council. To grant an exclusion the city
council must determine, among other things, that “[t]he exclusion
shall not aggravate any existing geologic conditions in the area.”
(Rancho Palos Verdes Mun. Code, § 15.20.100, subd. (C)(3).) This
is the portion of the moratorium that the landowners contend
makes the moratorium facially unconstitutional. In Monks,
however, we were considering that language in the context of
resolution No. 2002-43, which provided that the city’s final
decision on an application for an exclusion would be to “continue
to deny requests for development permits for new homes in the
Zone 2 area . . . until an applicant submits a complete Landslide
Moratorium Exclusion application” that established a gross
safety factor of 1.5 or higher. The city has repealed resolution
No. 2002-43, and the record contains no indication of how the city
would ultimately decide an application for exclusion.
Furthermore, there is nothing about the language of the
14
statute—absent the offending and repealed resolution—that
commands the outcome the landowners urge.
Monks II is not dispositive, and application of our finding in
Monks II to a changed set of circumstances is not appropriate or
persuasive. Furthermore, neither the landowners’ arguments nor
our review of the moratorium in the city’s municipal code reveal
facial constitutional infirmity. (See also Tobe v. City of Santa
Ana (1995) 9 Cal. 4th 1069, 1084.)
B. Exhaustion of Administrative Remedies
1. Stare Decisis
Although the landowners claim to be challenging only the
constitutionality of the moratorium, they argue at length about
exhaustion of administrative remedies.6 The landowners contend
that Monks II absolves them of the responsibility for exhausting
administrative remedies under the doctrine of stare decisis. We
disagree.
Our holding in Monks II was about the moratorium in the
context of a city council resolution that required Zone 2 property
owners to establish a gross (or region-wide as opposed to local, or
single-lot only) safety factor of 1.5 or higher as a condition of
construction. (Monks II, supra, 167 Cal.App.4th at pp. 278-279.)
“[I]n Monks I, we held that plaintiffs were excused from
6 The landowners reiterate in their reply brief that their
challenge to the moratorium is a facial challenge. However,
having found no facial constitutional infirmity on our own review
and having no facial constitutional infirmity identified for us, we
can only conclude that the landowners’ challenge is to the city’s
potential future application of the moratorium (absent the
resolution at issue in Monks II) if a fact-specific application for
exclusion is ever presented.
15
exhausting their administrative remedies—from having to
establish a gross safety factor of 1.5—on the ground of futility.
The city council had already decided that Zone 2 had a safety
factor less than 1.5 and was not going to be persuaded otherwise.
We stated that plaintiffs should not be required to pay between
$500,000 and $1 million to conduct a study in an attempt to prove
what the city would not believe. Thus, the use of the
administrative process was pointless.” (Id. at p. 304, original
italics.)
In Monks II, we noted that the evidence about the
administrative requirements had not changed, and we therefore
applied Monks I’s futility determination as the law of the case in
Monks II. (Monks II, supra, 167 Cal.App.4th at p. 304.) We said:
“The gist of the evidence did not change. At the trial, plaintiffs
simply offered more evidence that a local safety factor was
geologically acceptable and that their lots had a safety factor of at
least 1.5; the city asserted again that, under the resolution,
plaintiffs had to prove a gross safety factor and offered more
evidence that the safety factor of Zone 2 was less than 1.5. And
no one [citation] provided any additional evidence about the cost
of determining the gross safety factor of Zone 2. In these
circumstances, it would make a mockery of the principle of
finality . . . if, after we remanded the takings claim for a trial on
the merits, the trial court found instead that plaintiffs should
seek an exclusion under the resolution a second time, using the
same administrative process as before.” (Ibid.)
On January 21, 2009, the city repealed the resolution that
commanded the outcomes in our Monks I and Monks II opinions.
Neither the record nor our review of the city’s municipal code
reveals any evidence that the city continues to require property
16
owners to demonstrate a gross safety factor of at least 1.5 as a
condition of construction. Our opinion in Monks II dealt almost
exclusively with resolution No. 2002-43 and how it implemented
the moratorium. We did not in that case consider the
moratorium outside the context of that resolution. Because
“ ‘cases are not authority for propositions not considered,’ ” (In re
Marriage of Cornejo (1996) 13 Cal. 4th 381, 388) Monks II is not
dispositive of the exhaustion of administrative remedies question
here.
2. Futility of Exhaustion of Remedies
“The Ninth Circuit ‘recognizes a limited futility exception to
the requirement that a landowner obtain a final decision
regarding the application of land use regulations to the affected
property. . . . Under this exception, the resubmission of a
development plan or the application for a variance from
prohibitive regulations may be excused if those actions would be
idle or futile. . . . The landowner bears the burden of
establishing, by more than mere allegations, the futility of
pursuing any of the steps needed to obtain a final decision. . . .
Moreover, before claiming the exception, the landowner must
submit at least one development proposal and one application for
a variance if meaningful application and submission can be
made. . . .’ [Citation.] [¶] . . . [¶]
“The futility exception as articulated in California cases
has largely followed the pattern described by the [Ninth]
Circuit . . . . That is, our cases have recognized that the exception
is narrow and that it requires some development proposal by the
landowner and that only when, by way of its response to the
proposal, a governmental agency has as a practical matter
defined what development will be allowed may a court then
17
determine whether there has been a taking. ‘The futility
exception is extremely narrow: “[T]he mere possibility, or even
the probability, that the responsible agency may deny the permit
should not be enough to trigger the excuse. . . . . To come within
the exception, a sort of inevitability is required: the prospect of
refusal must be certain (or nearly so).” . . .’ ” (Calprop Corp. v.
City of San Diego (2000) 77 Cal. App. 4th 582, 593-594.)
The landowners’ stated justifications for not exhausting
remedies here are unconvincing. The landowners rely on
Joannou’s application for permission to build on her Zone 2
property. But the record contains no information about whether
the city approved or denied that application, which followed a
settlement between Joannou and the city regarding another of
Joannou’s properties that had slid several hundred feet onto a
neighboring lot.
The remainder of the landowners’ evidence is no more
convincing. The record contains no decisions by the city council
on the ultimate question of whether anyone might build on a
property located in Zone 2. And the statements the record does
contain appear to have all been elicited by the landowners and
their counsel after the landowners had already filed suit. It is
specious to contend that it would be futile to exhaust
administrative remedies neither having attempted to do so nor
having developed a record establishing futility before filing suit.
We cannot determine based on the record before us that the
city’s response to any given application for exclusion is a foregone
conclusion. We cannot, therefore, conclude that exhaustion of
administrative remedies would be futile.
18
3. Expense of Exhaustion of Remedies
The landowners also correctly point out that “courts may
consider the expense of the administrative process as one factor
in determining whether exhaustion is appropriate.”7 (Monks I,
supra, B172698 at p. 18, italics added.) But it is not the only
factor. We found it a very persuasive factor in Monks I, where
the parties agreed that exhausting administrative remedies
would cost an individual homeowner hundreds of thousands of
dollars, if not more than $1 million to reach a conclusion that
resolution No. 2002-43 necessarily foreordained.
Here, however, the expense of exhaustion is summarized in
the landowners’ argument that they “did not want to hire
architects and engineers and pay fees only to see an application
for an exclusion rejected.”8 Fees to hire architects and engineers
to work with a single parcel are not the “unusual expense” to
which we referred in Monks I, where the lot owners were facing
the expense of establishing the gross safety factor for a 130-acre
piece of the city. Nor are they unusual expenses at all in the
7The landowners rely heavily on this language from our
published opinion in Monks II, where it appears in the
background section as a quote from Monks I. This language in
the background section of Monks II should not be relied upon in
any other case as anything other than background for the issues
we were deciding and the law of the case in Monks II.
8 At oral argument, the landowners argued that building on
a Zone 2 lot would cost approximately $35 million to essentially
“dig out” of the landslide. That cost, however, assuming the city
would even require “digging out” of the landslide, would be a
building cost, not an application cost. The evidence is relevant,
therefore, not to the question of futility of applying for permission
to build, but to the cost of building, which is not before us.
19
process of acquiring a building permit. We cannot conclude from
the record before us that the expense of applying for an exclusion
from the city’s building moratorium excuses the landowners from
that administrative process.
DISPOSITION
The judgment is affirmed. The city is entitled to its costs
on appeal.
CERTIFIED FOR PUBLICATION.
CHANEY, Acting P. J.
We concur:
BENDIX, J.
CURREY, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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