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 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

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.
Continue Reading Hotel San Remo: You Can Check Out, But Can You Ever Leave?

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.
Continue Reading Taking Kelo For What It Is Worth

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.
Continue Reading Hawaiian Case Prompts Sea Change in Takings Law