Takings & Inverse Condemnation

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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.
Continue Reading Applicability of Nollan and Dolan to Facial Challenges to Inclusionary Housing Ordinances

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.”…
Continue Reading Full Ownership by Public Agency of Drainage Improvement Not Needed to Prove Physical Taking

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.
Continue Reading A Detailed Record Can Make All the Difference: Court Upholds Commission’s Imposition of $5.3 Million Fee

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.
Continue Reading The Development Blues: Property Lies Undeveloped for 30 Years and Counting

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.
Continue Reading Governor of Montana Successfully Asserts Sovereign Immunity to Takings Claim

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.
Continue Reading A Dim Light at the End of a Long Tunnel: Municipal Land Use Decisions and Substantive Due Process

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.
Continue Reading City’s Accidental Creation of Wetlands Leads to Finding of Physical Taking and a $36.8 million Judgment Against City

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”).
Continue Reading Subdivision Woes: A fault line, a sea cliff, and two wetlands…so what’s the problem here?

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.
Continue Reading Don’t Fence Me In