Articles Posted in Takings/Inverse Condemnation

By Matthew Hinks
In a victory for California property owners, the California Court of Appeal, on March 13, 2014, issued a new opinion holding that the State of California’s proposed entry onto hundreds of properties in Northern California for geological and environmental testing amounted to a taking under the state constitution. The opinion of the court in Property Reserve, Inc. v. Superior Court may have a profound impact upon major public works projects throughout the state.
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By Matthew Hinks
The well-known “nexus” and “rough proportionality” tests from the United States Supreme Court’s opinions in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) do not apply where a condition to issuance of a building permit does not otherwise constitute a taking. So says the California Court of Appeal in Powell v. County of Humboldt, a new published opinion that could potentially limit the reach of Fifth Amendment takings protections for California property owners.

Factual Background

Scott and Lynn Powell own property near the Arcata-Eureka Airport in Humboldt County. The previous owners of the property constructed a covered porch and carport without securing a building permit. In May 2008, the County gave notice to the Powells that unless they secured an “after-the-fact” permit for the porch and carport they would be subject to monetary penalties. The Powells thereafter filed a permit application, which included work to secure the porch foundation and strengthen the structures to bring them into compliance with building codes. The County informed the Powells that, pursuant to a County general plan requirement, the County would require, as a condition to issuance of the permit, that the Powells dedicate an aircraft overflight easement over their property granting the County the right to, among other things, allow flights and noise inherent thereto, and regulate the release of substances, light and electrical emissions, in the airspace over the property.
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By Matthew Hinks
Amidst reports of rising home prices throughout California and fears of a new housing bubble, controversial plans floated by California cities to deal with the lingering effects of the mortgage meltdown by invoking their powers of eminent domain are gaining traction. The City of Richmond in Northern California has begun implementing the plan by sending letters to hundreds of holders of underwater mortgages — mortgages on homes that are now worth less than the mortgage amount — offering to purchase the loans at a discount. If the mortgage holders refuse, Richmond’s mayor has indicated that the city will move to seize the loans pursuant to its eminent domain powers.

The idea came to national prominence last year when the County of San Bernardino combined with the cities of Ontario and Fontana to form a Joint Powers Authority to publicly examine proposals to assist homeowners within their jurisdictions who are underwater on their mortgages. The JPA publicly flirted with the use of eminent domain to seize underwater mortgages only to abandon the idea after opposition surfaced.

The Los Angeles Times reports that the City of El Monte is considering adopting a similar plan. Other cities across the country and throughout California, including La Puente, near El Monte, and Orange Cove and San Joaquin in Fresno County, are reportedly doing the same.
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By Matthew Hinks
Chief Justice John Roberts recently observed during oral argument on the Supreme Court’s latest foray into the field of regulatory takings that the government does not lose a Penn Central case very often. A new opinion from the California Court of Appeal in Lockaway Storage v. County of Alameda represents one of those rare instances. But more than offering just an isolated example of a property owner victory in such cases, the court’s opinion in the Lockaway case delivers a significant blow to a major obstacle that has stood in the way for developers alleging damages caused by project delays — the California Supreme Court’s seminal decision in Landgate v. California Coastal Commission.

Facts of Complaint

In May 2000, Lockaway Storage (“Lockaway”) purchased an 8.45-acre parcel of land in an unincorporated area of Alameda County. The property was zoned for agricultural uses with an alternative conditional use for “open storage of recreational vehicles and boats”. Prior to Lockaway’s purchase of the property, the County had issued a Conditional Use Permit (“CUP”) authorizing an rv storage facility, which would expire if it was not implemented by September 22, 2002.
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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.
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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.
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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.
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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.
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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.
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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.
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