The URL can be used to link to this page

Home My WebLink About09 AMICUS SAN DIEGO 10-07-02AGENDA REPORT NO. 9 10-07-02 MEETING DATE: TO: FROM: SUBJECT: OCTOBER 7, 2002 455-05 R=5 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL CITY ATTORNEY JOINDER IN AN AMICUS BRIEF IN SUPPORT OF THE CITY OF SAN DIEGO IN BORDER BUSINESS PARK, INC. vs. CITY OF SAN DIEGO SUMMARY: The Legal Advocacy Committee of the League of California Cities has approved preparation of the Amicus Brief and urges cities to join. RECOMMENDATION: The City Attorney recommends joinder in an amicus brief in support of the City of San Diego in Border Business Park, Inc. vs. City of San Diego. The City of San Diego is appealing a trial court decision that found the City liable for a "taking" of private property when the City publicly investigated a proposal to build a new international airport and re- routed commercial truck traffic on a street adjacent to the plaintiff's property. FISCAL IMPACT: There is no fiscal impact in taking this action. BACKGROUND: The plaintiff property owner alleged that the diminished marketability of the property due to the investigation of the airport proposal and re-routing of truck traffic amounted to a taking of his property for public use and the court agreed. See attached Summary prepared by the Brief Writer. In our opinion, prejudicial errors of law were made by the court; unless there is a physical invasion of the property or the property value is stripped to zero by over burdensome regulations, no taking as a matter of law can be found. The City was found liable for over $50 million for the two (2) "takings". Participation in the amicus brief (which is at no cost to the City) is warranted to help the Court understand the statewide problem that could result if the lower court ruling is affirmed. Any City planning has the potential to diminish the marketability of some property and increase the marketability of others. Likewise, controlling traffic on City streets can have adverse and positive impacts on nearby businesses and residents. While the City Internet TUSTIN AGENDA REPORT OCTOBER 7, 2002 JOINDER IN AMICUS BRIEF of Tustin strives to be sensitive to concerns about adverse impacts, some adverse impacts cannot be avoided in their entirety. If this trial court decision becomes a reported appellate decision, it will dramatically increase the City's liability exposure and will stifle efforts to rebuild, improve, or redevelop any portion of the City. ATTACHMENTS' Summary prepared by writer of Amicus Brief. I nternet WOODRUFF SPRRDL[N SMRRT 714 835 ??8? P.02/06 DONALd) R. LINCOLN KENNETH C. TUREK HENRY E, HEATER DAVID SEMELSBERCiER JAMES C. ALLEN LrNDA ]3. REICH ERIN M. WINDSOR KIMBERLY K. HARRIS OF COUNSEL RONALD L. ENDEMAN ENDEMAN, LINCOLN, TUREK & HEATER LLP ~'~o~ (619) 544-0123 ATTORNEYS AT LAW G00 "B' STREET, SUITE 2400 SAN DIEGO, CALIFORNIA 92101-45 g2 s,~-~)l ~ o AUG 1 2 w~BS,T~ ATTENTION ALL CITIES! This Case Could Severely Impact Your Ability to Plan Projects Lois Jeffrey, City Attorney Woodruff, Spradlin & Smart 701 S. Parker St., Suite 8000 Orange, CA 92868-4760 Re' Border Business Park, Inc. v. City of San Diego, California Court of Appeal, Fourth Appellate District, Division One, No. D039225 Dear City Attomey: The Legal Advocacy Committee of the League of California Cities has approved the preparation of an Amicus Brief in support of the City of San Diego ("San Diego") in the above-entitled ease. In addition, the League is urging other cities to join in on that brief. I, av..d other members of my firm, will be drafting thc Amicus Brief and request that your City join in that Brief due to the issues of major significance to all California Cities. Case Summary This is an appeal from a state Trial Court ruling which found San Diego liable for approximately $100 million in damages for inverse condemnation based on (1) San Diego's activities relating to its planning for a possible international airport to be located near the property owner's property, and (2) San Diego's activities relating to the re-routing of commercial truck traffic onto public streets adjacent to the property owner's property in order to reach a federal border crossing. 0CT-01-2002 1~:05 714 835 7787 P. 02 DCT-OI-~DO~ ~:04 DOODRUFF SP~DL[N $~T 7~4 ~ 7787 P.~/06 City Attorney August 8, 2002 Page 2 In 1983 Plaintiff Border Business Park, Inc. ("Border B.P.") purchased 320 acres of undeveloped land in Otay Mesa, a rural area soutl'/of San Diego and adjacent to the Mexican border. Border B.P. planned to develop 312 acres into an industrial business park. On October 16, 1986, Border B.P. and San Diego entered into a Development Agreement. On September 22, 1995, Border B.P. filed suit in the San Diego Superior Court alleging that San Diego had breached the 1986 Development Agreement and engaged in other conduct that was so disruptive that it amounted to unconstitutional taking of its property. Specifically, Border B. P. claimed that San Diego had acted "recklessly" by publicly investigating a proposal to build a new international airoort in the Otav Mesa area without first taking appropriate steps to verify that the project was ~,iable. The Trial Court agreed finding that San Diego was liable under inverse condemnation law for temporarily diminishing the marketability of Border B.P.'s property. In addition, the Trial Court ruled that San Diego was also liable under inverse condemnation law for exacerbating the traffic near Border B.P.'s property by re-routing commercial truck traffic onto adjacent public streets in order to reach a federal border crossing. The jury found that San Diego had breached the Development Agreement, and awarded $29.2 million in damages for "breach of contract," $25.5 million for the airport planning "taking," and $39.8 for the traffic diversion "taking." After the verdict, the Trial Judge reoused himself. The case was transferred to a new Judge, who ordered a new trial on the "breach of contract" cause of action. The Court, however, denied San Diego's Motion for a New Trial or Judgment NOV on the portion of the Judgment dealing with its liability for inverse condemnation. With interest, this remaining portion of the Judgment against San Diego exceeds $91 million. I~ssues_ofMaior SiGnificance to California Municipalities Statewide The issues raised in this case are important to all California municipalities. As to the first issue, all that occurred was the planning and the study of a proposed airport which "could" have impacted Border B.P.'s property if the airport project had proceeded forward. San Diego never passed a formal resolution or took other procedural steps to condemn the property. If the Trial Court decision stands, the ability of cities to engage in municipal planning and studies could be seriously impaired. The issue involving the truck traffic arose after the federal government diverted all commercial truck traffic from the existing San Ysidro border crossing to the new Otay Mesa border crossing. Because San Diego had jurisdiction over the public streets leading to the new Otay Mesa border crossing, San Diego was forced to quickly determine the best method of redirecting this truck traffic. After considering all feasible alternatives, 0CT-01-2002 16:06 714 835 7787 97~ P.03 OCT-OI-~OB~ 16:04 WOODRUFF SPRADLIN SMART 714 835 ?787 P.B4/06 · City Attorney August 8, 2002 Page 3 San Diego determined the best alternative was to use a street adjacent to Border B.P.' s property. Border B.P. was never denied access to its property. San Diego's decision merely increased traffic along the adjacent street. If the Trial Court decision stands, every city could be at risk for inverse condemnation damages every time it changes traffic patterns. Even more important than the two specific issues discussed in the Trial Court ruling this case potentially impacts broader legal questions about a City's liability for adverse impacts on private property where no physical invasion has occurred. The Amicus Brief The primary purpose of the Amicus Brief will be to explain to the Court of Appeal the potential impact its decision will have on the actions of municipalities throughout California. It will also discuss the legal standards a Court should use in determining whether a municipality is liable under inverse condemnation when its actions or inactions have adverse impacts on private property where no physical invasion has occurred. San Diego's Appellant' s Opening Brief was filed on June 24, 2002. Border B.P.'s Respondent's Brief is currently due by September 23, 2002. We are planning to file the Amicus Brief after the filing of Border B.P.'s Brief, or at approximately the same time as San Diego's Reply Brief is filed. If you have any questions concerning the case or the position to be taken in the Amiens Brief, please call me. We would be happy to provide you with a copy of San Diego's Opening Brief on Appeal if you believe it would be helpful in making your decision as to whether or not to join in the Amiens Brief. If you do agree to join m this Amicus Brief, please .,.end me an A.~thorizaO. on of Representation, which '-'ncludcs your state bar number, as soon as possible. Donald R. Lincoln DRL/mrs 0CT-01-~08~ 16:86 714 835 778? 97~ P.04