Boxer v. City of Beverly Hills (2016) 246 Cal.App.4th 1212
By Glen C. Hansen
In Boxer v. City of Beverly Hills (2016) 246 Cal.App.4th 1212, the Court of Appeal for the Second Appellate District held that the trial court properly sustained the City of Beverly Hills’ (“City”) demurrer to an inverse condemnation cause of action brought against the City by homeowners whose views of the Los Angeles Basin and surrounding hills, including the Hollywood sign, were blocked by the City’s planting and maintaining of coastal redwoods on a City park adjacent to the homeowners’ property. In an inverse condemnation action, the property owner must establish the first element that the public entity has “taken or damaged” his or her property, before the second element of just compensation is addressed. Property is “taken or damaged” within the meaning of article I, section 19 of the California Constitution when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself. In this case, the plaintiffs failed to establish any one of those three alternatives.
Plaintiffs did not allege that either the trees or anything associated with the trees physically invaded their property. Thus, plaintiffs failed to allege any physical intrusion, occupation, or invasion of their property or any physical damage to their property. Also, plaintiffs failed to show any “intangible intrusion” onto their property. When the conduct of a public entity results in an “intangible intrusion” onto the plaintiff’s property that does not physically damage the property, the plaintiff must allege that the intrusion has resulted in a burden on the property that is direct, substantial, and peculiar to the property itself. Here, plaintiffs argued that an “intangible intrusion” existed because the trees unobstructed their view of Los Angeles and its surrounding hillsides and prominent landmarks. However, under California law, plaintiffs had no right to an unobstructed view over adjoining property. The visual impairment from the City’s trees could not, itself, constitute an unconstitutional taking. Plaintiffs’ alternative argument regarding diminution in the value of their property from the obstructed view was also unavailing, because that argument failed to establish the first element of a compensable taking or damaging of their property. Diminution in value is a component of the second element of just compensation, which is not considered until after the first element of a “taking or damage” has already been proved. Accordingly, plaintiffs failed to allege an inverse condemnation cause of action, and the demurrer was properly sustained by the trial court.
Glen Hansen is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.