Despite hyperbolic and misleading criticism from various NIMBY groups, California is one step closer to important new state-level land use and housing reform. Contrary to bald statements that these bills would “crush” single-family zoning or “end homeownership” in California, these are modest, incremental measures that preserve substantial local control and respect private property rights.
On June 28, 2021, the Supreme Court issued Pakdel v. City and County of San Francisco, 594 U.S. ____ (2021), a unanimous per curiam opinion vacating a ruling by the Ninth Circuit in favor of the City and County of San Francisco. The petition for review was filed by a married couple who bought an interest in a six-unit apartment building in San Francisco’s Russian Hill neighborhood. The couple’s interest gave them the right to occupy one of the units, which they planned to live in when they retired. Until retirement, however, they rented the apartment to a tenant.
In a 6-3 opinion written by Chief Justice John Roberts, Cedar Point Nursery v. Hassid, __ U.S. __ (2021) (Case No. 20-107), the Supreme Court issued a major property rights decision in favor of landowners in a case addressing California labor union organizing laws that allow union organizers “access” to agricultural employees on employers’ private property. But despite popular media accounts, the case is only nominally about labor laws. Instead, it is principally about takings under the Fifth and Fourteenth Amendments, and it confirms that governmental entities may not force landowners to allow unwanted third parties to trespass on their private property. In the clear words of the Court, “[w]henever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place.”
Continue Reading Supreme Court Issues Major Property Rights Decision in Favor of Landowners, Confirming that Government-Sanctioned Physical Invasions of Private Property are Categorically Compensable Under the Takings Clause
On May 4, 2021, in Alliance for Responsible Planning v. Taylor (County of El Dorado), __ Cal.App.5th __ (2021) (Case No. C085712), the Third District Court of Appeal affirmed a trial court decision invalidating as a violation of the unconstitutional conditions doctrine certain County of El Dorado planning policies enacted via ballot initiative.
On May 4, 2021, the Second District Court of Appeal affirmed a trial court decision, in Kracke v. City of Santa Barbara, __ Cal.App.5th __ (2021) (Case No. B300528), enjoining the City of Santa Barbara’s enforcement of a short-term vacation rental ban in the coastal zone, through proactive enforcement of existing zoning regulations, unless it obtains Coastal Commission approval or a waiver of such requirement.
In Ruegg & Ellsworth v. City of Berkeley, __ Cal.App.5th __ (2021) (Case No. A159218), the first published appellate decision addressing Senate Bill 35, the First District Court of Appeal reversed a trial court decision in favor of the City of Berkeley regarding a project with apartments over retail filed under the provisions of Senate Bill 35. The Court of Appeal rejected all of the City’s arguments, reversed the trial court in all respects, including its use of a deferential standard of review, and required the City to issue the requested ministerial permit approving the project.
In a case that exists only because of the choices a city made in both application decision-making and litigation, the Second District Court of Appeal held, in Felkay v. City of Santa Barbara, __ Cal.App.5th __ (2021), that multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance.
During California’s strawberry harvesting season in the summer of 2015, union activists entered a nursery’s property under the authority granted by a California regulation that allows union organizers to enter the private property of agriculture businesses for three hours at a time, 120 days per year, to recruit potential new members. The organizers entered the nursery’s property with bullhorns in hand, distracting and intimidating hundreds of employees who were preparing young strawberry plants for shipment. For three consecutive days during the same summer, the organizers also attempted to enter the private property of a family-owned grower and shipper of fresh produce.
In a low-profile but important new decision, San Luis Obispo Local Agency Formation Commission v. City of Pismo Beach, __ Cal.App.5th __ (2021) (Case No. B296968), the Second District Court of Appeal affirmed a trial court decision and held that the Cortese-Knox-Hertzberg Act (Gov. Code § 56000 et seq.) does not authorize a local agency formation commission (“LAFCO”) to require an indemnification agreement or to require the payment of attorney fees based on such an agreement.
As former U.S. Supreme Court Justice John Paul Stevens famously explained, more than 30 years ago, about the Supreme Court’s takings cases:
“Even the wisest of lawyers would have to acknowledge great uncertainty about the scope of this Court’s takings jurisprudence.”
Nollan v. California Coastal Comm’n, 483 U.S. 825, 866 (1987) (dissenting opinion).