The Court of Appeal for the Sixth Appellate District affirmed a trial court judgment that rejected constitutional claims, including a regulatory takings challenge, against a Monterey County ordinance that provided that no one may keep more than four roosters on a single property without a rooster keeping operation permit. In its analysis of the takings claim, the court provided a helpful clarification of the key evidentiary differences between a “facial” regulatory takings claim and an “as-applied” regulatory takings claim.
The Monterey County ordinance included a number of permit provisions that were relevant to court’s analysis of the plaintiffs’ various constitutional claims. The permit could not be issued to anyone who has a criminal conviction for illegal cockfighting or other crime of animal cruelty. Permitted rooster keeping operations must comply with certain minimum standards, such as maintaining structurally sound pens that protect roosters from cold and are properly cleaned and ventilated. The ordinance included four exemptions from the permit requirement: for poultry operations (defined as raising more than 200 fowl for the primary purpose of producing eggs or meat for sale); poultry hobbyists (a member of a recognized organization that promotes the breeding of poultry for show or sale); minors who keep roosters for an educational purpose; and minors who keep roosters for a Future Farmers of America project or 4-H project. There was no evidence presented at trial regarding whether the plaintiffs were eligible for such a permit, whether a permit had been granted or denied, or whether plaintiffs had even applied for a permit.
Plaintiffs alleged that the rooster keeping ordinance was a regulatory taking, one that deprives them of all beneficial use of their property. The complaint described the taking claim as an “as applied” challenge because of the way that the ordinance allegedly applied to plaintiffs’ property. But that is not how the plaintiffs ended up arguing their case. Plaintiffs essentially changed their claim into a “facial” regulatory takings challenge at trial, since no evidence was introduced other than the text of the ordinance and some related legislative documents. In a “facial” challenge to the constitutional validity of a statute or ordinance, the court considers only the text of the measure itself, not its application to the particular circumstances of an individual, and not any other evidence. To succeed on a facial challenge, a plaintiff must show that the law in question could never be applied in a constitutional manner; it is not enough to show that the law would be unconstitutional under some circumstances.
At trial in this case, plaintiffs essentially pursued only a “facial” challenge and failed to provide the evidence necessary for the “as applied” claim that was originally alleged in the complaint. The Court of Appeal explained:
Plaintiffs agreed to limit the scope of the issues tried to solely whether the ordinance is valid on its face (and accordingly did not present evidence of how the ordinance affected them) it was fatal to their regulatory taking challenge. That is because a regulatory taking claim—in contrast to a physical occupation or direct appropriation of property—requires evidence of how the regulation affects the property in question. As the Supreme Court has instructed, determining whether a statute constitutes a regulatory taking requires “an ‘ad hoc’ factual inquiry,” necessitating the consideration of “factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action.” [32 Cal.App.5th at p. 262 (quoting Horne v. Dept. of Agriculture, 576 U.S. ___, 135 S.Ct. 2419, 2427 (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978))).]
Thus, the “as applied” regulatory taking claim that was alleged in the complaint failed at trial because there was “no evidence on which to evaluate the economic impact of the regulation or the level of its interference with reasonable investment-backed expectations.”
Accordingly, the trial court found that the ordinance did not violate the Fifth Amendment and entered judgment for the County on that claim, and the Court of Appeal affirmed.
Glen Hansen is Senior Counsel at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.