Suzanne J. Black v. City of Rancho Palos Verdes

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.”

3

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

4

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

5

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

6

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

7

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

8

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

9

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.

10

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.

11

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

12

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,

13

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.

14

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

15

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.

16

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

17

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

18

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.

19

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



7 The 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.

20

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.

The judgment is affirmed. The city is entitled to its costs on appeal.