Takings & Inverse Condemnation

Class Description

Stay up-to-date on recent developments in California law affecting land use, planning and environmental compliance. Experts from the field provide succinct and practical analysis on recent case law and significant legislative and administrative changes that took effect this year.

Topics Include:

  • General plans, specific plans and zoning
  • The Subdivision Map Act
  • CEQA
  • Changes to redevelopment in California
  • Affordable housing
  • Regional land use planning and implementation of SB 375
  • Takings, exactions and dedications
  • New air quality guidelines
  • Land use litigation
  • Delta Stewardship Council’s Delta Plan
  • Adapting to sea level rise

Schedule:

March 1, 2017 – Wednesday, 9:00 a.m. to 4:30 p.m.

Sacramento: Sutter Square Galleria, 2901 K Street.

Instructors:

Cecily Talbert Barclay, Matthew Gray, and William Abbott

For more info, or to enroll visit: https://extension.ucdavis.edu/section/annual-land-use-law-review-and-update

 

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.

 

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. – 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

By William W. Abbott

Coppinger v. Rawlins (August 14, 2015, E060664) ___ Cal.App.4th ___.

County acceptance of a roadway dedication on a map does not assure acceptance of the roadway into the County maintained highway system.

In 1980, Robinson filed a parcel map, creating two numbered lots and 3 lettered lots: A, B and C. By certificate on the map, the County accepted the dedication offer on Lot A into the County maintained road system, and accepted Lots B and C on behalf of the public, but not into the County maintained system, specifying that acceptance would require a separate resolution by the Board of Supervisors.

Continue Reading Accepting Roadway Dedications On Behalf Of The Public As Compared To Accepting Roads Into The Publically Maintained Road System. Words Matter.

By Glen C. Hansen

In Honchariw v. County of Stanislaus (2015) 237 Cal.App.4th 388, the Court of Appeal for the Fifth Appellate District held that a landowner’s inverse condemnation claim for damages against the County of Stanislaus caused by an unconstitutional temporary taking was time-barred under Government Code section 66499.37. The owner previously had filed a successful petition for writ of mandate challenging the disapproval of a subdivision application, which resulted in the County’s reconsideration of the application and eventual approval of the project. However, the owner’s subsequent claim for compensation damages was time-barred under section 66499.37 because the mandamus proceeding had not established that there had been a compensable taking.

Continue Reading Do You Seek Compensation For An Unconstitutional Taking? Then Plead That With The Mandamus Action To Avoid The Potential Statute Of Limitations Bar!

By Glen C. Hansen

In Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, the Court of Appeal for the First Appellate District affirmed a trial court judgment that found that the County of Alameda was liable for $989,640.96 in damages for a temporary taking of plaintiff’s property, where the county stopped work on plaintiff’s project in light of a growth control initiative, even though the project fell within an exemption in the initiative and county officials failed to even consider such exemption, and where the county’s action in stopping the project constituted an unreasonable change from the County’s prior representations made to the property owner.

Continue Reading County’s Unreasonable Change In Position To Stop Project Results In $1 Million Temporary Takings Award.

By Glen C. Hansen

For nearly twenty years, Fifth Amendment takings challenges to adjudicative land-use exactions and permit conditions have been governed by the dual Supreme Court cases of Nollan v. California Coastal Commission, 483 U.S. 825 (1987),and Dolan v. City of Tigard, 512 U.S. 374 (1994). In Nollan, the Court held that a government could, without paying the compensation, demand the easement as a condition for granting a development permit the government was entitled to deny, provided that the exaction would substantially advance the same government interest that would furnish a valid ground for denial of the permit. The Court further refined that requirement in Dolan, holding that an adjudicative exaction requiring dedication of private property must also be “‘roughly proportional’ . . . both in nature and extent to the impact of the proposed development.” However, Nollan and Dolan involved the dedication of real property interests. In Koontz v. St. Johns River Water Management District, ___ U.S. ___, 2013 U.S. Lexis 4918 (2013), the Court held in a 5-4 decision that “the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money.” 

Continue Reading The U.S. Supreme Court’s Nollan/Dolan Jurisprudence Is Catching Up With The California Supreme Court in Ehrlich v. Culver City

By William W. Abbott

In California Building Industry Assn. v. City of San Jose (June 6, 2013, H038563) ___ Cal.App.4th ___, the City of San Jose adopted an inclusionary ordinance, requiring that new residential projects include units affordable to specified income ranges. Alternatively, the ordinance permitted the developer to pay an in lieu fee or dedicate land. The California Building Industry Association (“CBIA”) filed suit, challenging the validity of the ordinance on its face on the basis that the ordinance lacked any nexus to the deleterious effects of new residential development. CBIA did not allege that a compensable takings had occurred, but rather argued that the City lacked sufficient justification for the ordinance. The trial court agreed with CBIA and invalidated the ordinance. The City appealed.

Continue Reading Appellate Court Reverses Trial Court Invalidation Of Local Inclusionary Ordinance; Remanded For Further Review

By Glen Hansen

In Freeny v. City of San Buenaventura (June 4, 2013, B240893) ___ Cal.App.4th ___, the Court of Appeal for the Second Appellate District held, in an action against a city and five city council members for compensatory and punitive damages for voting against an application for building permits and variances, that public employees’ tort immunity for legislative decision-making under Government Code sections 820.2, 821 and 821.2 applies even when that decision-making is also alleged to involve the making of misrepresentations motivated by actual fraud, corruption or actual malice.

Continue Reading Public Officials Are Immune From Tort Liability For Legislative Actions Involving Misrepresentations That Are Motivated By Fraud, Corruption Or Actual Malice.

By Glen C. Hansen

Lost Tree Village Corp. v. United States, ___ F.3d ___, 2013 U.S. App. LEXIS 690 (Fed.Cir. 2013). Between 1968 and 1974, Lost Tree Village Corporation (“Lost Tree”) purchased approximately 2,750 acres of property on Florida’s mid-Atlantic coast, which included a barrier island on the Atlantic Ocean. That property included 4.99 acres now known as Plat 57, which is part of the entire peninsula known as the Island of John’s Island. From 1969 through the mid-1990s, Lost Tree developed approximately 1,300 acres it purchased into the upscale gated residential community of John’s Island. The development was made in a piecemeal manner, and not as a master-planned community.

Continue Reading US Army Corps Denies A §404 Permit: Can A Takings Claim Be Based On Consideration Of The Economic Affect On the Wetlands Parcel Only?