Ensuring Land Use Litigators
Their Day in Court
by Timothy F. O’Leary

Land-use litigation is often won or lost before the parties file suit. Parties unaccustomed to land-use litigation may overlook the importance of the administrative process which can result in procedural defects that preclude judicial review.

Successful land-use litigation depends on careful and aggressive participation in the administrative process. This column outlines some practical steps parties and their counsel should follow during the administrative process to ensure that they will have their day in court. Although following these steps will not ensure success, ignoring them will certainly produce defeat.

1. Present All Factual and Legal Arguments During the Administrative Process

A superior court reviewing a petition for administrative writ of mandamus sits as a court of appeal. The administrative agency acts as the trier of fact. Thus, rules commonly applied by appellate courts also apply to a superior court petition seeking reversal of an administrative decision.

The first of these rules is that the trial court reviewing a petition for administrative writ of mandate will not consider a legal argument which the parties failed to asset during the administrative process. Practitioners may be surprised to learn that the secret argument they were saving for trial court review - believing that it might be ignored by the administrative agency - will not be heard because this argument was not first posited during the administrative process. Surprise is not a tactic that trial courts will tolerate when reviewing petitions for writ of mandate. Accordingly, counsel must ensure that, in the administrative proceedings, their clients raise all legal arguments they intend to rely on during judicial review.

This requirement presents practical difficulties because parties who present exotic legal arguments are not received well during the administrative process. Quoting the latest Supreme Court decisions on procedural due process rarely convinces a planning commission that it should grant your client a lot line split. Planning commissions, city councils, and boards of supervisors are often concerned with more "nuts and bolts" issues, such as the potential development's impact on the neighborhood, resource supplies, and the like.

The practical difficulty of presenting legal arguments during the administrative process is exacerbated by the fact that your lay client is often the person addressing the administrative body. Clients usually address the pertinent agencies during the administrative process to save cost and to demonstrate their personal stake in the approval of the development. Clients who have repeatedly appeared before the agency also may have developed personal relationships with the members which ensure a warmer reception than the attorney can expect.

Parties and their counsel are thus confronted with the dilemma of how to prepare to win an approval at the administrative level, but satisfy procedural requirements for judicial review in case of defeat. The need to raise all legal arguments during the administrative process aggravates this tension if the client is burdened with the responsibility of making the legal arguments before the administrative agency.

Fortunately, the cases requiring that all legal arguments be asserted during the administrative process do not specify how these legal arguments should be presented. Thus, the best solution to the dilemma is to submit a written statement containing the legal arguments on which a party ultimately will rely if the proposed development is denied. Even if these legal arguments are not reiterated when the client addresses the administrative agency, presenting the legal arguments in written form will preserve the arguments for judicial review. Presenting the legal arguments in written form also allows the client concentrate on the practical and political issues addressed during open session.

An exception to the rule requiring the presentation of all legal arguments during the administrative process applies when the legal argument challenges the constitutional authority of the respondent administrative agency. In Floystrup v. City of Berkeley Rent Stabilization Bd. (12990) 219 CA3d 1309, 1317, 268 CR 898, 902, the court of appeal permitted appellants to argue that the rent withholding orders of the Berkeley Rent Stabilization Board violated Cal Const art VI, ß1 (the judicial powers clause), even though this argument had not been presented during the administrative process. The court reasoned that this argument need not have been made during the administrative process because it challenged the board's constitutional authority to act. Counsel contemplating whether to include a legal argument during the administrative process should take little comfort in this narrow exception. The safer practice is to present all legal challenges in writing during the administrative process.

Parties should also present all factual support for their position during the administrative process. This rule emanates from the judicial doctrine which limits judicial review of petitions for writ of mandate to the administrative record. Limiting judicial review tot he administrative record also occurs because generally no discvoeyr is permitted in actions seeking writs of administrative mandamus.

An exception to this rule applies for evidence which the petitioning party was prevented from introducing during the administrative process. Counsel should recognize that courts are generally hostile to exploiting this exception. Parties who intend to rely on it to expand on the administrative record during judicial review should lay a foundation during the administrative process that such evidence was proffered, but the agency refused to accept it.

2. Exhaust Administrative Remedies

Practitioners are better acquainted with the rule which compels petitioners to exhaust all their administrative remedies before seeking judicial review. Constraints of time and money do not, however, always allows developers the luxury of complying strictly with this requirement. Nonetheless, courts construe exceptions to the exhaustion of administrative remedies requirement narrowly. The fact that the respondent agency has denied an identical request from another property owner may be insufficient to separate, though identical, development application though the full administrative process.

A narrow exception applies when the respondent agency has already acted in contemplation of the proposed development. In Twain Harte Assocs., Ltd. v. County of Tuolumne (1990 217 CA3d 71, 91 265 CR 737, 748, the property owner applied to the planning commission for a lot split and tentative parcel map. After denying the application, the planning commission downzoned the parcel to prevent commercial uses. The board of supervisors followed the planning commission's recommendation and enacted the downzoning by ordinance. Because the board of supervisors had already acted in response to the proposed development, the court of appeal held that the applicant did not need to seek a variance from the downzoning.

Subject to this narrow exception, parties should follow all the steps provided for administrative review of local government decisions before seeking judicial intervention.

3. The Application Should Be Ripe

The doctrine of ripeness is a related, though distinct, requirement with more general application to challenging land-use decisions. Practitioners should ensure that their clients have described the proposed development fully during the administrative process. Even if the developer exhausts all administrative remedies, failure to propose a complete development will limit the developer's arguments during judicial review.

For example, when a parcel is downzoned to prevent commercial uses, developers may be inclined to cease drafting a development proposal. The practical reason is that developers are reluctant to spend money on architectural and engineering fees to develop plans for a parcel which the country has reserved for open space. Developers logically prefer to wait to see if the country will rezone the property before spending thousands of dollars on a proposed development.

In an effort to save money, however, developers limit the arguments they can make in court. Developers who fail to submit a development proposal may be limited to presenting only "facial" challenges to the agency action during judicial review. The developer probably will be unable to present an "as-applied" challenge (i.e., claim that, as applied to a particular property, a statute effects an uncompensated taking) during judicial review.

Further, even if the developer prevails in court, the developer may have difficulty proving compensatory damages. The court will not have had the benefit of reviewing a proposed development project, and will not award speculative damages based on a development proposal that was never submitted to the appropriate local governing body. Thus, even though developers now have a legal basis for recovering damages for a "temporary" taking (First English Evangelical Lutheran Church v. County of Los Angeles (1987) 482 US 304, a developer's failure to submit a completed development proposal will prevent it from proving such damages during trial.

4. Draft Findings That Will Withstand Judicial Review

If your client is fortunate enough to achieve a favorable decision during the administrative process, counsel should take steps to ensure that the decision will withstand judicial review. Counsel should offer to assist the local agency in drafting appropriate findings supporting its decision.

Certain agencies may consider such offers as attempts to usurp their powers. In these instances, the proposal should be couched in terms suggesting that the developer is simply identifying the requisite elements. The reviewing court will accord deference to an administrative agency finding. A litigant will be unable to take advantage of this rules unless the agency includes the appropriate findings in its decision. Thus, including all appropriate administrative findings will enhance the prospects that the administrative agency decision will be affirmed.

A lawyer's role in administrative proceedings is significant in laying the foundation for successful judicial review. Though the client will most often want to address the appropriate agencies personally, counsel should ensure that the client preserves all legal arguments and explores all opportunities for administrative review.

Parties should not neglect the administrative process even if they expect the hostile agency to decline their proposed development. Ignoring the administrative process may prevent your client from obtaining a day in court. If landowners hope to succeed at trial, they must begin actively pursuing that goal during the administrative process.