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.

Continue Reading Supreme Court Issues Another Important Property Rights Decision

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.

Continue Reading County’s Initiative-Enacted General Plan Traffic Mitigation Policies Are Unconstitutional Exactions

Judge Amy Coney Barrett was nominated, for a reason, to replace the late Justice Ruth Bader Ginsburg as an Associate U.S. Supreme Court Justice.  As other commenters have noted, a Justice Barrett is expected to move the Court to the right on a wide range of issues, including health care, gun control, and abortion.  But what is far less clear at this point is how a Justice Barrett would influence or alter the Court’s property rights jurisprudence.

Continue Reading What Might Supreme Court Nominee Amy Coney Barrett Mean to Property Rights?

Without a single mention of the U.S. or California constitutions, the San Francisco city attorney’s office issued an April 13, 2020 memo declaring that the City may “take any measure necessary to prevent the spread of an infectious disease.”

Continue Reading San Francisco Asserts Sweeping Power “To Take Any Measure Necessary” to Prevent Spread of COVID-19

Seeking to piggyback on the State of Emergency Governor Gavin Newsom declared on March 4, 2020 as part of the state’s response to address the global COVID-19 pandemic, California cities filed a letter with the Governor asking him to “pause” various important statutory timelines that apply to twelve parts of state law, including several that play a central role in the ongoing housing crisis.  In the six-page letter, dated March 22, 2020, the League of California Cities explains that

Continue Reading California Cities Seek Relief From Project Processing, Public Records Act, and Other Key Statutory Timelines During State of Emergency Resulting From COVID-19

Senate Bill 330, referred to as the Housing Crisis Act of 2019, contains two major parts intended to accelerate housing production over the next five years by streamlining permitting and ensuring no net loss in housing capacity.  Governor Newsom signed SB 330 into law on October 9, 2019, and it will be in effect from January 1, 2020 until January 1, 2025 unless extended via additional legislation.

The first major part of SB 330 establishes various “good government” requirements that affect the processing of housing development projects in every California city and county.  The second part of the law limits the ability of “affected” cities and counties—a smaller but substantial subset of agencies that are designated by the U.S. Census Bureau as “urbanized areas or urban clusters”—to downzone property and regulates the ability of developers to replace existing housing with new housing.

The focus of this blog post is the powerful new, and applicant-friendly, statutory form of vested rights referred to as a “preliminary application,” contained in the first part of SB 330, over which cities and counties have no discretion.


Continue Reading Establishing Vested Rights Through SB 330’s Preliminary Application: Understanding the Key Differences Between “Deemed Complete” and “Determined to be Complete” in the “Housing Crisis Act of 2019”

The law has many terms for the word “fairness,” including due process, good faith, neutral, and unbiased. And among the basic principles of fairness, the Latin maxim “nemo debet esse judex in propria causa” stands out. It provides, essentially, that no one should be a judge in their own case or in a case in which they have an interest.

This famous legal maxim was squarely addressed in a recent case of first impression, Lippman v. City of Oakland, __ Cal.5th__ (2018), where California’s First District Court of Appeal reversed a trial court decision that rejected a landowner’s challenge to a building code violation reviewed by a single hearing officer appointed by the same branch of the City that issued the disputed citation. The decision was originally filed December 22, 2017 and later certified for publication on January 22, 2018.


Continue Reading City of Oakland’s Building Code Appeal Process Violates State Law and Infringes Private Property Rights the State of California Has an Interest in Protecting