California Land Use, Environmental & Real Estate Lawyer & Attorney : Abbott & Kindermann Law Firm : Sacramento, CA

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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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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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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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.

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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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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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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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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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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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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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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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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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