Takings & Inverse Condemnation

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In a divided ruling, the United States Supreme Court held that a property owner had failed to establish the existence of protected property rights under Florida law to stop a beach replenishment project, and as a result, the Court need not determine whether or not a ruling by the Florida Supreme Court constituted a physical taking affecting ocean front property owners.
Continue Reading Takings Analysis Potentially Applies to Judicial Decisions as Well

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.
Continue Reading Take This! Wealth-Transfer under Rent Control Ordinance Constitutes a Regulatory Taking

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.
Continue Reading Delay in Granting Ministerial Electrical Permit is Not a Regulatory Taking

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.
Continue Reading Court Answers Monk’s Prayers: City, Thou Shall Not Take!

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