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Housing Project Improperly Killed, Appeals Court Says

December 25, 1987|Associated Press

SAN FRANCISCO — A private housing development planned by John Herrington before he became U.S. Energy Secretary was improperly killed by local officials in Northern California, but a jury's $2.5-million damage award was excessive, a federal appeals court ruled Thursday.

'Shocks the Conscience'

The U.S. 9th Circuit Court of Appeals upheld a lower-court order allowing Herrington and his brother, David, to revive plans for a 32-home development in Sonoma County, but ruled that the damage award was "so grossly excessive that it shocks the conscience."

Two of the judges voted to return the case to U.S. District Court for a new assessment of damages. The third judge, Thomas Tang, said the suit was premature and should have been dismissed.

County Counsel Jamez Botz said he was encouraged at the reversal of damages but uncertain whether the county would appeal the remainder of the ruling. Lawyers for Herrington were unavailable Thursday.

Herrington and his brother, a San Diego building contractor, first made plans for the development in 1976 on 540 acres they own 10 miles west of the town of Sebastopol.

County supervisors voted in 1979 that the proposal was inconsistent with requirements to preserve agriculture and timber resources in the county general plan, and later rezoned the area to allow no more than seven housing units on the property.

The Herringtons contended that county planning staff misrepresented facts about the property and that they were wrongfully prevented from taking part in county hearings.

Actions Called Arbitrary

A federal court jury ruled that the county had violated the Herrington's constitutional property rights by acting arbitrarily, and without supporting evidence, in deciding that the development was inconsistent with the general plan.

The jury awarded $2.5 million in lost property value, profits and interest. Consistent with the verdict, U.S. District Judge Charles Legge then ordered the county to reverse its ruling regarding the general plan, a decision that revives the development but does not necessarily require the county to approve the 32-unit proposal.

The appeals court said there was some evidence to support the verdict in the Herringtons' favor--the claims of altered documents and the denial of opportunity to take part in county hearings.

The opinion by Judge Herbert Choy expressed skepticism about the brothers' claims that their proposal fit the county's agricultural and environmental policies, or that the county had approved similar residential plans on other property. But Choy said a failure by county lawyers to object at the proper time required the court to defer to jury findings that were supported by some evidence.

Damages for Delays

In overturning the damages as excessive, Choy cited expert testimony that the property was worth $1.3 million fully developed.

Since the Herringtons still own the land and may be able to develop it, the $2.5-million award is based on speculation and duplicate amounts, Choy said. He indicated that proper damages would compensate the brothers for losses caused by whatever improper delays they suffered.

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