Inverse Condemnation and Takings

Twenty years was a reasonable period of time for a public agency to accept a right-of-way dedication offer by physically occupying the property. Prout v. Department of Transportation, 31 Cal. App. 5th 200 (2019).

Prout developed a 165-acre residential subdivision that fronted State Highway 12 in Calaveras County. In 1989, Prout submitted to the California Department of Transportation (Caltrans) an application for an encroachment permit to connect his subdivision’s private road to Highway 12. Caltrans approved the encroachment permit conditioned upon Prout dedicating a 20-foot-wide strip of vacant land along Highway 12 (1.31 acres total) as public right-of-way. Final subdivision maps recorded in 1990 labeled the 20-foot strip as “area in the process of being deeded to Caltrans for highway purposes.” However, “the matter simply ‘fell through the cracks,’” and the 20-foot strip was never transferred by deed to Caltrans. In the subsequent years, Prout never was assessed or paid property taxes on the 20-foot strip, and he did not fence the area within his subdivision parcels.

Two decades later, while planning for work to improve Highway 12, Caltrans discovered that the 20-foot strip of land had never been transferred by deed. Caltrans requested that Prout sign a deed to convey the strip of land; Prout refused. Caltrans proceeded with widening Highway 12 to include the 20-foot strip of land, completing the work in 2011.

Prout filed an inverse condemnation action against Caltrans, alleging that Caltrans owed him just compensation for physically occupying the 20-foot strip of land. Caltrans filed a cross-complaint for breach of contract, promissory estoppel, and specific performance, alleging that Prout had accepted the benefit of the encroachment permit but refused to finalize the dedication and deed of the 20-foot strip. In response, Prout argued that if the dedication of the 20-foot strip was a condition of the encroachment permit (as claimed by Caltrans), it was an illegal exaction.
Continue Reading Public Agency Could Validly Accept Dedication After Twenty Years By Physically Occupying the Property

Under the doctrine of regulatory takings, a regulation of property that goes “too far” in burdening property rights will be recognized as a Fifth Amendment taking. The Supreme Court’s recent decision in Murr v. Wisconsin (U.S. Supreme Court No. 15-214, June 23, 2017), represents an important step in the evolution of regulatory takings jurisprudence. It addresses the issue of how to define the “proper unit of property” in the regulatory takings analysis, a question often termed “the denominator problem.” In Murr, the Court rejected the notion that a legally defined parcel is necessarily the relevant unit of analysis finding that, under certain circumstances, multiple legal parcels may jointly constitute the relevant unit of property. But the Court avoided adopting a bright-line rule to determine the relevant unit of property and instead adopted a complex, multifactor test to address the denominator problem.

Background of this Case

The property at issue in Murr consisted of two adjacent lots, Lot E and Lot F, in Troy, Wisconsin, owned by two brothers and two sisters, the petitioners in the case. Local regulations prevented these lots from being sold or developed unless there was a minimum of one acre of developable land. A lot merger provision also provided that adjacent lots under common ownership could not be sold or developed as separate lots if they did not meet the size requirement.

The two lots were situated along the St. Croix river, with a steep bluff cutting through the lots limiting the lots’ developable area. Though each lot was approximately 1.25 acres in size, the lots’ combined buildable area was only 0.98 acres due to the terrain.

The petitioners’ parents purchased Lot F in 1960 and built a small cabin on it. Lot F was later transferred to the family plumbing company. In 1963, they purchased neighboring Lot E, which they held in their own names. The lots remained under separate ownership until 1995, when they were transferred to the petitioners.

The petitioners became interested in moving the cabin on Lot F to a different portion of the lot and selling Lot E to fund the project. However, based on the lot merger provision, the local zoning board determined that the lots could not be separately sold or developed.

The petitioners filed an action, alleging that these restrictions amounted to a regulatory taking by effectively depriving them of all or practically all use of Lot E.

The Takings Clause

The Takings Clause of the Fifth Amendment provides that property shall not “be taken for public use, without just compensation.” Traditionally, the Takings Clause reached only a direct appropriation or physical occupation of property. The Court’s regulatory takings jurisprudence was initiated by Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), which declared that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”

Two subsequent Supreme Court decisions provide guidance on application of this principle. In Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992), the Court stated that, with certain qualifications, a regulation which “denies all economically beneficial or productive use of land will require compensation under the Takings Clause.” When a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking may still be found based on multiple factors described in Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978), which include (1) the economic impact of the regulation; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.
Continue Reading Supreme Court Announces New Test for Regulatory Takings Claims

A city cannot prohibit development on more than one-third of an otherwise developable site in anticipation of future condemnation of that portion of the property. Such a restriction denies the landowner all economically beneficial use of the restricted land and constitutes a taking requiring just compensation. Jefferson Street Ventures, LLC v. City of Indio, No. G049899 (4th App. Dist., April 21, 2015).

Jefferson Street Ventures owned a vacant 27-acre parcel that included the site of a long-proposed highway interchange project. In 2005, Jefferson submitted a proposal to the City to develop a retail shopping center on its entire parcel. At the time, the federal and state agencies involved in the interchange project were in the process of completing environmental reviews to satisfy NEPA and CEQA. The City could not acquire property for the interchange until the environmental reviews were completed.

The City Council did not approve development of the entire 27-acre parcel, but rather conditioned approval of Jefferson’s master plan on leaving nine acres for the future interchange undeveloped and reserving a two-acre temporary no-build area for a highway off-ramp during the interchange construction. The City Council included the conditions based on the advice of its staff that it would be much more expensive to acquire property for the interchange project if Jefferson developed the entire site because the City would then incur additional condemnation costs for demolition of buildings and relocation of tenants

The court of appeal held that the City’s conditional approval of Jefferson’s development plan resulted in an uncompensated taking of the 11 acres. A regulation that deprives a landowner of all economically beneficial or productive use of its property is a per se taking that requires just compensation. Under all applicable land use regulations, Jefferson’s entire 27-acre property was developable, and its master plan was in full compliance with governing regulations.
Continue Reading Don’t Bank On It: Court of Appeal Takes Issue with City’s Development Prohibition

The Northern District of California has struck down part of San Francisco’s rent control ordinance as an unconstitutional taking under the Fifth Amendment in Levin v. City and County of San Francisco, Dist. Court, ND California 2014, No. 3:14-cv-03352-CRB (N.D. Ca Oct 21, 2014). The case may have important implications for monetary exactions in local land use permitting.

At issue in Levin were the relocation payments required by the 2014 amendments to the San Francisco rent control ordinance. Under the ordinance, owners of rent-controlled property were required to make certain payments for tenants evicted under the Ellis Act. Under the 2014 amendments to the rent ordinance, in order to withdraw the unit under the Ellis Act, property owners were required to pay the greater of the lump sum required under the original ordinance or an amount equal to twenty-four times the difference between the unit’s current monthly rate and the fair market value of a comparable unit in San Francisco.

Plaintiffs, owners of rent-controlled properties in San Francisco, filed suit, bringing a facial challenge against the 2014 ordinance as violating the Takings Clause of the Fifth Amendment.

The court ruled in favor of the plaintiffs, finding that the 2014 ordinance constituted an exaction that violated the Takings Clause. The court first held that the San Francisco ordinance, which demanded monetary payment from the property owners in exchange for a permit to remove a unit from the rental market, had to satisfy the Nollan/Dolan requirements of essential nexus and rough proportionality. Next, the court found that the ordinance could not meet either of those requirements. Both steps in the court’s analysis may prove important in future cases involving monetary exactions.

Extending the reach of Nollan/Dolan

The Nollan/Dolan standard constitutes a special application of the unconstitutional conditions doctrine to the government’s land use permitting power. The Nollan and Dolan cases specifically applied to adjudicative land use exactions involving a government demand for property owners to dedicate an easement as a condition of obtaining a development permit. The central concern in these two cases was that the government may use its substantial power in land use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the property.

The Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District expanded the reach of Nollan and Dolan to monetary exactions. Because of the direct link between the government’s demand and a specific piece of real property, the Court held that the central concern in Nollan and Dolan was implicated and application of the standard to monetary exactions was appropriate.
Continue Reading Federal Court Invalidates San Francisco Tenant Relocation Requirements

 A recent California Court of Appeal decision considered the argument that a county requiring property owners to dedicate an overflight easement as a condition to issuance of a building permit was an unconstitutional exaction. The court concluded that the owners could not establish a taking because they were unable to show that the government simply