California Land Use Blog

By Matthew Hinks

Evidence of just compensation to be awarded in an eminent domain action is all but invariably put on through expert opinion. In a bit of good news for property owners facing eminent domain proceedings, the California Court of Appeal has issued a new opinion offering a relaxed view of the admissibility of expert opinions relating to comparable sales.

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.

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.

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.

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.

by Matthew Hinks

Court judgments finding a regulatory taking are relatively rare. So too are decisions upholding the oft-heard complaint of "spot zoning". In the recent case of Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4th 1256 (2011), the court (and the plaintiff) hit the daily double.