New Ninth Circuit Opinion Finds Regulatory Takings Claim Fails Where Economic Impact of Manufactured Home Park Zoning Ordinances Was Minimal

November 1, 2012

By Matthew Hinks

A new opinion from the Ninth Circuit out of the State of Washington -- Laurel Park Community, LLC v. City of Tumwater -- offers an interesting application of the Supreme Court's regulatory taking jurisprudence.

Continue reading "New Ninth Circuit Opinion Finds Regulatory Takings Claim Fails Where Economic Impact of Manufactured Home Park Zoning Ordinances Was Minimal" »

Bad News and Good News for Billboard Companies: Ninth Circuit Refuses to Recognize Limit on City of Los Angeles Sign Ordinance but Curbs the Power of the City to Classify Commercial and Noncommercial Speech

October 26, 2012

By Matthew Hinks

The Ninth Circuit has issued a new "chapter in 'the story of billboards.'" Billboard companies and advertisers should take note of the court's opinion. Although the opinion refused to extend full First Amendment protection to billboards and advertising related to underlying expressive works, the court -- recognizing its central role in defining the contours of Constitutional liberties -- rejected the trial court's reasoning that a municipality should be afforded deference to define the divide between commercial and noncommercial speech.

Continue reading "Bad News and Good News for Billboard Companies: Ninth Circuit Refuses to Recognize Limit on City of Los Angeles Sign Ordinance but Curbs the Power of the City to Classify Commercial and Noncommercial Speech" »

Property Rights and Eminent Domain: Court Overturns Condemnation Victory On Right to Take Where Taking Did Not Result in Landlocked Parcel

September 27, 2012

By Matthew Hinks

In an opinion containing echoes of the United States Supreme Court's controversial and much maligned decision in Kelo v. City of New London, 545 U.S. 469 (2005), the California Court of Appeal has limited the reach of California Code of Civil Procedure § 1240.350(a). That section provides that a condemning agency that takes property resulting in the property being "cut off from . . . access to a public road", may also take property belonging to another party to provide alternative access to the original property. The Court of Appeal in Council of San Benito County Governments v. Hollister Inn, Inc., limited Section 1240.350(a) to situations where the taking leaves the original property completely landlocked.

Continue reading "Property Rights and Eminent Domain: Court Overturns Condemnation Victory On Right to Take Where Taking Did Not Result in Landlocked Parcel" »

An Interview with the New Executive Director of BCDC: Larry Goldzband

September 11, 2012

By Jon Welner

On July 20, Lawrence J. Goldzband was appointed Executive Director of the San Francisco Bay Conservation and Development Commission (BCDC).

BCDC is a state regulatory agency created in the 1960s to ensure the environmental protection and responsible economic development of San Francisco Bay. It has permit authority over all development in the Bay and within 100 feet of the shoreline, including the development of all ports and marine facilities. In recent years, BCDC has taken a leadership role in preparing the Bay Area for the effects of sea-level rise resulting from global climate change.

We recently sat down with Mr. Goldzband to discuss his perspective on the opportunities and challenges that lie ahead.

Continue reading "An Interview with the New Executive Director of BCDC: Larry Goldzband" »

Eminent Domain and Inverse Condemnation: Court of Federal Claims Opinions Recognize Limits to Right of Compensation for Less Than Permanent Takings

August 28, 2012

By Matthew Hinks

The Takings Clause of the Fifth Amendment to the United States Constitution provides that "private property [shall not] be taken for public use, without just compensation." The Constitution does not prohibit the taking of private property by the government -- so long as the taking is done for a "public purpose", -- but instead places a condition on the exercise of that power: namely, the payment of "just compensation". As the Supreme Court has recognized, "[t]he paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property." Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005). In other words, situations where the government obtains title to or physically occupies private property present relatively uncomplicated issues as to whether a taking has occurred. More nuanced issues arise, however, where governmental actions cause less than permanent occupations. This principle was on display in a pair of recent opinions from the United States Court of Federal Claims, a court established by Congress to adjudicate monetary claims against the federal government.

Continue reading "Eminent Domain and Inverse Condemnation: Court of Federal Claims Opinions Recognize Limits to Right of Compensation for Less Than Permanent Takings" »

Los Angeles Superior Court Rules Saudi Prince's Benedict Canyon Project Was Illegally Subjected to L.A. Building Code Provisions

August 25, 2012

News Release


LOS ANGELES -- On August 23, 2012, a Los Angeles Superior Court judge ruled that the residential project proposed in the Benedict Canyon area by Saudi prince Abdul-Aziz ibn Abdul-Aziz al Saud, the Deputy Foreign Minister of Saudi Arabia, had been illegally subjected by the City of Los Angeles to rules that are not applicable to the project. [Tower Lane Properties, Inc. v. City of Los Angeles, Los Angeles Superior Court case no. BS137339.]

The rule at issue is City Building Code sec. 91.7006.8.2 which requires projects that are subject to subdivision to apply for a tentative tract map prior to grading on sites greater than 60,000 square feet. The city and certain neighbors argued that this provision is applicable to the Saudi prince's project even though no subdivision was proposed or contemplated. Hence, they argued the project requires a discretionary review and public hearings.

The court found that the code section is not applicable to the project and ordered the city not to apply this provision to the project. The proposed project consists of three single family homes on three separate legal lots on Tower Lane.

Martha and Bruce Karsh, who own a large estate property next door, elected to intervene in the lawsuit. The Karsh's legal arguments regarding the applicability of this code section were also rejected by the court. In papers filed with the court, Tower Lane Properties submitted evidence of city records showing that Martha and Bruce Karsh had pulled numerous grading and building permits for their own property between 2003 to 2010 in order to construct a recreational building, a guest house, a conservatory with basement, and other improvements, and not once did the City subject them to the very same ordinance they argued Tower Lane Properties must adhere to, even though their property is also greater than 60,000 square feet. Tower Lane Properties produced evidence that the city had never before applied this ordinance to an applicant proposing a single family home on a single legal lot.

Martha and Bruce Karsh have been leading opponents of the project who have waged a campaign-style attack against the project and Prince Abdul-Aziz. The City of Los Angeles Ethics Commission website shows that Martha and Bruce Karsh had also hired a team of lobbyists to influence the city processing of this project. Bruce Karsh is one of the co-founders of Oaktree Capital, an international investment and management firm and, according to the Los Angeles Times, the largest creditor of Tribune Co. which owns the Los Angeles Times.

"Our client designed a project to comply with all the zoning and building code regulations, but in response to outside pressures the city devised new interpretations intended to force our client into a lengthy and unnecessary analysis of non-existent issues. This is a residential project which is completely consistent with neighboring properties and will be constructed in compliance with building and grading regulations. Yesterday's detailed and well- reasoned court ruling vindicates our client's position that the City tried to apply its rules in a discriminatory manner," said Benjamin M. Reznik, land use attorney for the Saudi prince. "It is most unfortunate that our client has been vilified by certain members of the community for doing nothing more than insisting that the laws of our city be applied to him fairly in the same manner as they are applied to other homeowners."

Click here to review the court's tentative decision, which became final after the hearing of August 23, 2012.

Contact
Benjamin M. Reznik
Jeffer Mangels Butler & Mitchell LLP
1900 Avenue of the Stars, Los Angeles CA 90067
BMR@jmbm.com
310.201.3572

Litigating Property Rights Cases in California: Law Seminars International

August 8, 2012

by Matthew Hinks

Litigating property rights cases in California requires navigating a confusing mélange of sometimes unfamiliar and often times conflicting groups of laws, rules and regulatory agencies.

On October 17, 2012, at the Marriott Los Angeles Downtown Hotel, I will be co-chairing an advanced one-day seminar entitled Litigating Property Rights and leading a distinguished panel of speakers who will help us understand this procedural and substantive thicket.

Continue reading "Litigating Property Rights Cases in California: Law Seminars International" »

Bay Island Club v. California Coastal Commission; Newport Beach Property Owner Succeeds in Invalidating Coastal Commission Permit Condition in Litigation Implicating Regulatory Takings Theories

July 29, 2012

By Matthew Hinks

The California Coastal Commission may not unilaterally impose a right of public access over private property. So says the California Court of Appeal in Bay Island Club v. California Coastal Commission.

Bay Island Club (the "Club") is comprised of 24 shareholders and owners of single-family residences on Bay Island, a private island located in Newport Bay in the City of Newport Beach. It has held title to the island since the early 1900s. Balboa Peninsula lies adjacent to the island and was conveyed to the East Newport Town Company ("East Newport") by the State of California in 1904. In 1927, East Newport granted to the Club an easement "to construct, maintain, repair and replace a bridge for pedestrian and/or automobile travel". Subsequently, East Newport deeded fee title, subject to the Club's easement, to certain real property, including the channel under the easement to the City.

The bridge built over the easement that existed at the time of the decision was constructed in 1958. In 2006, the Club applied to the California Coastal Commission for a permit to replace it with a 10-foot wide and 130-foot long bridge. Sometime prior to filing the application, the Club had erected a gate on the mainland side of the bridge preventing use of the bridge by the public. There was conflicting evidence in the record over when the gate was built, including evidence from members of the public that the gate was constructed after 1976, which, if true, meant that the gate was constructed in violation of the Coastal Act (passed in 1976), because it was built without a Coastal permit.

Continue reading "Bay Island Club v. California Coastal Commission; Newport Beach Property Owner Succeeds in Invalidating Coastal Commission Permit Condition in Litigation Implicating Regulatory Takings Theories" »

Developers' Rights and Due Process; Illegal Moratoria Do Not Give Rise to Section 1983 Civil Rights Claims

July 12, 2012

By Matthew Hinks

Consider these facts: A married couple owns waterfront property in a picturesque harbor. They devoutly wish to build a pier or a dock on their property; however, the city refuses to even accept an application for a permit. This is because the city had previously passed and repeatedly extended an illegal moratorium preventing construction of new docks and piers in the area in which the couple's property is located. The initial moratorium was passed on an emergency basis without a prior public hearing and without findings documenting the emergency or justifying expedited treatment. A state trial court declared that the rolling moratorium violated the state constitution. After the state appellate court granted a stay of the trial court's decision, the city announced that it would continue to refuse permit applications for over-water structures during the pendency of the appeal and continued extending the moratorium until the city adopted a new comprehensive shoreline use plan that permanently banned new over-water construction and forever prevented the couple from building their dock.

Despite the earlier stay, the state court of appeal unanimously affirmed the trial court's ruling. The state Supreme Court also affirmed holding that, not only is "[t]here is no authority in [applicable state law], express or inherent, [that] justifies the [c]ity's attempt to impose unilateral moratoria", state law affirmatively prohibits city-adopted moratorium in these circumstances. The state Supreme Court determined that the city's actions amounted to a "clear violation of [the] property owners' rights" and "resulted in a physical degradation of these private owners' property". Further, the city's resort to the illegal moratoria was especially suspect being that, "the [c]ity had years to make any required plan changes but did not do so."

Continue reading "Developers' Rights and Due Process; Illegal Moratoria Do Not Give Rise to Section 1983 Civil Rights Claims" »

Attention Sign Companies and Outdoor Advertisers: New Ninth Circuit Decision Partially Invalidates on First Amendment Grounds Permit Scheme Regulating Commercial Weddings

June 15, 2012

By Matthew Hinks

Sign litigation, especially litigation over the constitutionality of ordinances and regulations affecting signage, often involves familiar, but competing, concepts. Although the courts recognize that outdoor advertising signs are subject to certain protections as "commercial speech" under the First Amendment, municipalities and agencies nevertheless hold significant authority to regulate signage. So long as the regulations on signage are content neutral and further the recognized governmental interests in protecting traffic safety and eliminating visual blight, the regulations are generally upheld. However, where an ordinance or regulatory scheme affords local officials too much -- or in the courts' parlance, "unbridled" -- discretion over whether to approve, deny or condition the approval of a sign, the courts are willing to step in and strike down the offending regulation. Although not a sign case, a new opinion out of the Ninth Circuit, Kaahumanu v. State of Hawaii, 2012 DJAR 7472 (9th Cir., June 6, 2012), offers a wonderful illustration of these competing principles.

Continue reading "Attention Sign Companies and Outdoor Advertisers: New Ninth Circuit Decision Partially Invalidates on First Amendment Grounds Permit Scheme Regulating Commercial Weddings" »

Development Rights and CEQA Challenges: Court of Appeal Upholds 3-Year Tolling Agreement in CEQA Lawsuit - Cause of action governed by a 30-day limitations period

May 29, 2012

by Matthew Hinks

The California Legislature and the courts have recognized that challenges to the California Environmental Quality Act (CEQA), if allowed to drag on, would impede the decisions of public agencies regarding land use. For this reason, CEQA imposes very short limitations periods and requires CEQA cases be given priority in both the trial courts and the courts of appeal.

But in a potentially troubling new case, the California Court of Appeal explicitly blessed the type of unreasonable litigation delay the Legislature protected against in enacting CEQA.

Continue reading "Development Rights and CEQA Challenges: Court of Appeal Upholds 3-Year Tolling Agreement in CEQA Lawsuit - Cause of action governed by a 30-day limitations period" »

Litigant's Failure to Establish Basis for Property Tax Base Transfer Highlights the Need to Exercise Special Care in Administrative Proceedings to Ensure that Judicial Remedies are Preserved

May 22, 2012

By Matthew Hinks

May a property owner who sells property to a non-governmental entity as part of a government redevelopment project under the threat of eminent domain transfer the tax base of the original property to replacement property? Not on the record presented by the plaintiff in Duea v. County of San Diego, 204 Cal. App. 4th 691 (2012).

Continue reading "Litigant's Failure to Establish Basis for Property Tax Base Transfer Highlights the Need to Exercise Special Care in Administrative Proceedings to Ensure that Judicial Remedies are Preserved" »

California U.S. District Court's Nationwide Injunction Affects Mining, Oil and Gas, and Timber Activities on National Forests

May 1, 2012

by Scott Castro

This article was first published by Law360. © 2012 Portfolio Media, Inc.

In mid-March, the U.S. District Court for the Eastern District of California issued a nationwide injunction that significantly affects mining exploration activities within lands managed by the U.S. Forest Service. Until this ruling, the Forest Service has relied on a June 4, 2003 agency regulation (located at 36 C.F.R. Part 215) (the "215 Regulation") that exempted from public notice, comment and administrative appeals activities deemed to be categorically excluded ("categorical exclusions" or "CEs") from the National Environmental Policy Act ("NEPA").

In a March 19, 2012 summary judgment ruling in Sequoia ForestKeeper v. Tidwell, however, U.S. District Court Judge Lawrence J. O'Neill invalidated the 215 Regulation's exemption for categorical exclusions.

Continue reading "California U.S. District Court's Nationwide Injunction Affects Mining, Oil and Gas, and Timber Activities on National Forests" »

State Law Permitting Establishment of Medical Marijuana Dispensaries Trumps Local Zoning Ordinances; Are There Implications for Sign and Supergraphics Litigation?

April 13, 2012

By Matthew Hinks

A trial court's order granting the motion of the City of Lake Forest for a preliminary injunction against the operations of a medical marijuana dispensary has gone -- well -- "up in smoke". Orange County Superior Court Judge Chafee had ruled that the city's zoning ordinances, which did not recognize dispensaries as a permitted use and expressly prohibited unpermitted uses, established a complete ban against medical marijuana dispensaries justifying preliminary injunctive relief. The Court of Appeal in City of Lake Forest v. Evergreen Holisitc Collective, 203 Cal. App. 4th 1413 (2012), disagreed and reversed that decision.

Continue reading "State Law Permitting Establishment of Medical Marijuana Dispensaries Trumps Local Zoning Ordinances; Are There Implications for Sign and Supergraphics Litigation?" »

Renewable Energy Update: Two New Nationwide Permits for Dredge and Fill Activities Under Section 404 of the Clean Water Act Now Effective for Renewable Energy Projects

March 22, 2012

by Scott Castro

On March 19, 2012, two new and 48 reissued Nationwide Permits (NWPs) for certain dredge and fill activities requiring authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act took effect. Nationwide Permits are issued by the Corps under Section 404(e) to provide a streamlined authorization process for dredge and fill activities having minimal adverse effects on the aquatic environment. Every five years, the Army Corps of Engineers issues revised and/or new Nationwide Permits. The last permits were issued in 2007, and expired on March 18, 2012. The two new NWPs affect renewable energy facilities, and projects qualifying for these Nationwide Permits should benefit from significant reductions in the time, effort and money necessary to obtain a Section 404 permit.

Continue reading "Renewable Energy Update: Two New Nationwide Permits for Dredge and Fill Activities Under Section 404 of the Clean Water Act Now Effective for Renewable Energy Projects" »