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Posted on August 12, 2010 by Abbott & Kindermann
By Leslie Z. Walker
In a case with a curious procedural posture, the Court of Appeal, First Appellate District, ruled that the Department of Water Resources is a “Person” for the purposes of Fish and Game Code section 2080 and thus is prohibited from taking an endangered or threatened species under the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) Kern County Water Agency v. Watershed Enforcers (2010) 185 Cal.App.4th 969.
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Posted on August 10, 2010 by Abbott & Kindermann
By Cori M. Badgley
Adam Bros. Farming, Inc. (“Adam”) has spent many years and a lot of money battling the County of Santa Barbara (“county”) over its wetlands delineation that covered land farmed by Adam. The saga began in California superior court, in which Adam brought suit claiming violations of the federal Equal Protection, Due Process and Takings clauses and seeking damages and declaratory and injunctive relief. The superior court found the takings claims were not ripe, and Adam amended its complaint to eliminate those claims. At trial, the court awarded Adam declaratory and injunctive relief and a jury awarded Adam damages. On appeal, the appellate court eliminated the damages, but upheld the declaratory and injunctive relief, holding that the wetlands delineation was contrary to law. See $5 Million Judgment Against Santa Barbara County Overturned by Appellate Court.
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Posted on July 27, 2010 by Abbott & Kindermann
By William W. Abbott
In an earlier case involving Takings jurisprudence, Supreme Court Justice Brennan once asked, “If a policeman must know the Constitution, then why not a planner?” Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (2010) ___ U.S. ___. Indeed, why not, and should the same question be asked of state courts? This issue came before the United States Supreme Court in the form of a submerged lands case from the State of Florida. Pursuant to Florida law, a beach front property owner has several rights. With respect to the slow addition of sand extending seaward into the ocean (accretion), the additional land belongs to the property owner. The sudden addition of land seaward (avulsion) however, belongs to the state as the owner of the submerged lands seaward of the mean high tide line. In the latter situation, the property line remains where it was prior to the avulsion. Florida law permits cities and counties to undertake beach restoration projects, typically involving placement of sand on submerged lands on the seaward side of the dividing property line. As part of that process, the State establishes the erosion control line. Once established, the common law of accretion (to increase or decrease property), no longer applies.
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Posted on October 28, 2009 by Abbott & Kindermann
By Cori Badgley
In Guggenheim v. City of Goleta (2009) 2009 U.S. App. LEXIS 21313, the court made two important rulings: a challenge to an ordinance on its face, instead of as applied to plaintiffs, could be brought as a regulatory taking claim and a mobile home park rent control ordinance constituted a regulatory taking under Penn Central. Courts have rarely upheld regulatory takings claims, and for a rent control ordinance to be found a taking would appear to greatly expand the possible situations in which a regulatory taking has occurred.
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Posted on February 25, 2009 by Abbott & Kindermann
By Cori M. Badgley and Nathan Jones
In Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, a developer asserted that a temporary regulatory taking occurred when the County of Santa Cruz (“County”) improperly and unlawfully delayed granting a ministerial permit for electricity. After extensively analyzing the various regulatory takings tests, the Court of Appeal, Sixth Appellate District, held that no regulatory taking had occurred.
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Posted on November 4, 2008 by Abbott & Kindermann
By William W. Abbott and Nathan Jones
While much is written about takings claims in the field of land use practice, the reality has been that for a number of reasons, it is extremely difficult for a California property owner to make a successful legal claim. In the context of a regulatory (as opposed to a physical) taking, the fact pattern to support a regulatory taking has to be extreme. The recent case of Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, vividly illustrates the types of extraordinary facts that must exist for a property owner to cross the finish line first.
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Posted on September 9, 2008 by Abbott & Kindermann
By William W. Abbott
In response to low production of affordable housing units, the City of Santa Monica adopted new and amended ordinances to increase the supply of affordable housing in June, 2006. These enactments were challenged by a coalition of multifamily residential developers on multiple grounds, with two issues going to the Court of Appeals: do the holdings of Nollan and Dolan apply to the ordinance enactment (as compared to the application of an ordinance to a given individual), and were the enactments subject to approval by the Department of Housing and Community Development (“HCD”) pursuant to its review powers of Housing Elements? As to both issues, the appellate court ruled in the negative. Action Apartment Association v. City of Santa Monica (August 28, 2008) 2008 Cal.App.Lexis 1372.
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Posted on September 2, 2008 by Abbott & Kindermann
By Cori Badgley
In Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783, Konstantine and Alexandra Skoumbas claimed that damage caused by a storm drain, a portion of which was owned by the City of Orinda (“City”), amounted to a physical taking of their property. Agreeing with the City, the trial court granted the City’s motion for summary judgment on the grounds that a taking could not have occurred where the City did not own the entire storm drain. The Court of Appeal, First Appellate District reversed the trial court’s ruling and held that the fact that the City only owned a portion of the storm drain did not preclude the conclusion that a physical taking occurred. Instead, the court ruled the question is “whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.”
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Posted on June 23, 2008 by Abbott & Kindermann
By Cori M. Badgley
In Ocean Harbor House Homeowners Association v. California Coastal Commission (2008) 163 Cal.App.4th 215, the California Coastal Commission (“Commission”) imposed a $5.3 million mitigation fee on a homeowner’s association that needed a permit to build a seawall to protect residences that would otherwise fall into the ocean. Attempting to find relief from the fee, the homeowner’s association sued the Commission, but the court denied all relief and upheld the fee.
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Posted on May 27, 2008 by Abbott & Kindermann
By Cori M. Badgley and Kate J. Hart
In an attempt to invalidate or, at a minimum, get damages for the California Coastal Commission’s (“Commission”) denial of a coastal development permit, Charles A. Pratt Construction Co., Inc. (“Pratt”) brought suit against the Commission, claiming that the Commission’s decision violated Pratt’s vested right to develop its property and, in the alternative, if the decision was valid, the Commission committed a regulatory taking by denying the coastal development permit. In Charles A. Pratt Construction Co., Inc. v. California Coastal Commission (2008) 162 Cal.App.4th 1068, the Court of Appeal, Second Appellate District upheld the Commission’s denial of the permit and dismissed Pratt’s regulatory takings claim for lack of ripeness.
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Posted on May 13, 2008 by Abbott & Kindermann
By Cori Badgley
After losing on its state takings claim in Montana state court, a mining company was then turned away by federal court on constitutional grounds. In federal court, the governor of Montana, who was the named defendant, argued that the governor and the state were immune from suit in federal court under the rarely referenced Eleventh Amendment of the United States Constitution. The Ninth Circuit Court of Appeals agreed with the governor and dismissed the mining company’s suit.
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Posted on April 15, 2008 by Abbott & Kindermann
Responding to an adverse $36 million judgment handed down in November of 2007, the City of Half Moon Bay has negotiated a settlement whereby the City will pass legislation allowing the developer to develop the property formerly delineated as wetlands. In the case leading to settlement, Yamagiwa v. City of Half Moon Bay (N.D. Cal. 2007) 2007 U.S.Dist.LEXIS 22573, the court awarded the developer $36 million for the wetlands accidentally created by the City that, according to the court, amounted to a physical taking of the property.
See Abbott & Kindermann's full review of this case entitled City's Accidental Creation of Wetlands Leads to Finding of Physical Taking and a $36.8 million Judgment Against City.
Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.
Posted on January 9, 2008 by Abbott & Kindermann
By Joel Ellinwood, AICP
A July 1, 2005
article posted on this blog termed the Supreme Court’s ruling in
Lingle v. Chevron U.S.A., Inc. (2005) 544 U.S. 528 a “sea change” in 5th Amendment regulatory takings claim analysis by striking the “substantially advances a legitimate state interest” test. Now the fallout from
Lingle from the Ninth Circuit makes it clear that the test survives to form the basis for 14th Amendment substantive due process challenges to land use regulations. However, the ultimate viability of such claims remains to be seen.
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Posted on December 18, 2007 by Abbott & Kindermann
By Cori Badgley
While compensation for regulatory takings remains elusive for California landowners, recovery of monetary damages for physical takings is established jurisprudence. In a stunning reminder of the physical/regulatory taking dichotomy, a federal court recently awarded over $36 million dollars in damages against the City of Half Moon Bay (“City”) whose assessment district project created wetlands on private property. The plaintiff’s case was based on theories of inverse condemnation, trespass and nuisance. Further, the court granted injunctive relief against the City from collecting assessments from the plaintiff. Not surprisingly, the City just announced that it will appeal the decision. We will see if they have more luck with the Ninth Circuit Court of Appeals.
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Posted on February 15, 2006 by Janell Bogue
by William W. Abbott and Janell M. Bogue
In Dunn v. County of Santa Barbara (2006) 2006 Cal.App.Lexis 74, David Dunn submitted a subdivision application for his six acre parcel located in the unincorporated Summerland area of Santa Barbara County. His land had some unique characteristics: it was located on a sea cliff and was bisected diagonally by an earthquake fault. He wanted to divide it into two equal size parcels, as there were two possible building envelopes on the land and the area was zoned for a minimum sized lot of three acres. The property, because of its proximity to the coast, is under the jurisdiction of the California Coastal Commission and is subject to the County's Local Coastal Plan ("LCP").
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Posted on November 1, 2005 by Janell Bogue
by Sophie Rowlands
Apparently, you can still buy a home in California where the cattle (if not buffalo) do roam. Just look for property located within a designated Open Range area. Pursuant to California Food and Agriculture Code section 17124, the board of supervisors in any California county may pass an ordinance devoting the entire county or certain portions of it to livestock grazing. Such areas do not have to be limited to publically owned lands; they can and often do encompass privately owned lands.
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Posted on August 1, 2005 by Janell Bogue
by William W. Abbott
In San Remo Hotel v. City and County of San Francisco (2005) 125 S.Ct. 2491, the United States Supreme Court ventured once again in the area of takings jurisprudence, addressing the circumstances in which property owners may be trapped in state court rather than federal district court. As disappointed property owners typically prefer federal court, the San Remo decision is important and overdue as a clarification as to litigation tactics.
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Posted on July 1, 2005 by Janell Bogue
by Elias E. Guzman
Eminent domain actions are guided by the Fifth Amendment of the United States Constitution, which guarantees that governments shall not take private property "for public use, without just compensation." It is this notion of "public use" that was examined in the recent Supreme Court case Kelo v. City of New London, 125 S.Ct. 2655 (2005). In Kelo, the Court held that a local government body, or its agent, can in fact use eminent domain to take private property for a "private use," as long as the taking is justified by being part of a larger economic development plan that helps or benefits the community.
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Posted on July 1, 2005 by Janell Bogue
by Joel Ellinwood, AICP and Janell M. Bogue
In May the Supreme Court announced a unanimous decision that changes 25 years of Fifth Amendment jurisprudence, eliminating the "substantially advances" test for determination of whether a government regulation results in a taking of property. In Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), the Court said that the test first laid out in Agins v. City of Tiburon, 447 U.S. 255 (1980) was not appropriate for determining whether a government regulation requires compensation. This clarifies what was until now a somewhat murky and muddled area of law.
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Posted on June 1, 2002 by Janell Bogue
by Diane G. Kindermann and Robert T. Yamachika
The United States Supreme Court on April 23, 2002 decided in Tahoe- Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) that temporary, government-imposed development moratoria do not automatically amount to a regulatory taking of private property requiring just compensation.
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