The Ninth Circuit Court of Appeals, which has federal appellate jurisdiction over a major portion of the western U.S., has something of a reputation as the most overturned federal appeals court circuit.  While the truth of that is a mixed bag, an October 13, 2020 order in an important property rights case looks to be a worthy candidate for both a petition for writ of certiorari, a grant of cert by the U.S. Supreme Court, and maybe more.

Continue Reading Ninth Circuit to Supreme Court: Pound Sand

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?

On August 17, 2020, in Martis Camp Community Association v. County of Placer, __ Cal.App.5th __ (2020) (Case Nos. C087759 and C087778), the Third District Court of Appeal addressed several novel legal claims arising from the County of Placer’s partial abandonment of public easement rights in a road connecting two adjacent residential subdivisions near Lake Tahoe.

Continue Reading Court Holds That County’s Abandonment of Public Road Easement Rights Did Not Violate Brown Act, Was Supported by Substantial Evidence, and Did Not Create Takings Liability

On August 5, 2020, in Granny Purps, Inc. v. County of Santa Cruz, __ Cal.App.5th __ (2020) (Case No. H045387), the Sixth District Court of Appeal addressed several novel property rights issues related to a law enforcement action in the County of Santa Cruz in which officers seized more than 2,000 marijuana plants from a medical marijuana dispensary for violating a local ordinance restricting marijuana cultivation to no more than 99 plants.

Continue Reading Court Holds That Dispensary’s Violation of County Marijuana Cultivation Ordinance Does Not Justify Seizure of Plants But Rejects Related Takings Claim

Every once in a while a case comes along that calls to mind the adage that “just because you can think it doesn’t mean you should say it.”  The Second District Court of Appeal’s July 30, 2020 eminent domain decision in Rutgard v. City of Los Angeles, __ Cal.App.5th __ (2020) (Case No. B297655) is one of those cases.

Continue Reading Court Rules in Favor of Landowner in Eminent Domain Case Where City Did Not Use Condemned Property for its Intended Public Use Within 10 Years

The California Coastal Act governs land use planning for California’s entire coastal zone, directing the state Coastal Commission to maximize the public access to and along the coast consistent with the rights of property owners.  The Act protects public access by, among other things, precluding development from interfering with such use and protecting oceanfront land suitable for recreational use.  The Act also requires the Commission to minimize potential conflicts between the public and beachfront property owners and to resolve potential conflicts between the Coastal Act’s policies in a way that, on balance, is most protective of significant coastal resources.

Continue Reading Takings Challenge to Coastal Commission Setback Condition Fails for Not Presenting “Exact Issue” to the Agency

On June 21, 2019, the Supreme Court of the United States decided Knick v. Township of Scott, Pennsylvania, 588 U.S. __ (Case No. 17-647), a closely-watched property rights case that was argued first in October of 2018 and again in January of 2019 after Justice Brett Kavanaugh joined the Court.  Knick addressed the requirement, established in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), that property owners must seek just compensation under state law in state court before bringing a federal takings claim under 42 U.S.C. section 1983.

Continue Reading In Major Property Rights Decision, U.S. Supreme Court Rules That Property Owners May Sue in Federal Court Without Seeking a Just Compensation Remedy in State Court First

On May 8, 2019, in Cedar Point Nursery v. Shiroma, __ F.3d __ (Case No. 16-16321) (2019), a 2-1 Ninth Circuit panel majority held that a California regulation allowing union organizers access to agricultural employees on employers’ private property, to communicate about union organization under certain limited circumstances, is not a Fifth Amendment taking.

Continue Reading Ninth Circuit: “Access Regulation” Allowing Union Organizing Activities on Employers’ Private Property is Not a Fifth Amendment Taking

On April 5, 2019, in a case originally filed March 8, 2019, the Second District Court of Appeal certified for publication York v. City of Los Angeles, __ Cal.App.5th __ (Case No. B278254) (2019), an inverse condemnation case filed when the City of Los Angeles approved the construction of an 8,000 square foot home, 1,300 square foot guest house, driveway, swimming pool, tennis court, storage sheds, retaining walls, and “wine caves” on a 40-acre parcel in the Hollywood hills but denied the landowners’ request for approximately 79,000 cubic yards of grading that accompanied the proposed project.

Under the then-applicable version of the City’s grading ordinance, the maximum grading permitted on the property as a matter of right was 3,300 cubic yards.  But the ordinance provides the zoning administrator discretion to grant a “deviation” to allow additional grading in excess of the maximum allowed “by-right” if the zoning administrator makes certain required findings.


Continue Reading Court Holds That Takings Claims Are Not Ripe Because City’s Denial of Grading Permit Was Not a Final Decision

Takings cases involving transportation agencies such as Caltrans typically involve physical occupations of land under the law of eminent domain.  In a twist on such physical occupation, in a case originally filed on December 12, 2018, and published January 11, 2019, the Third District Court of Appeal held, in Prout v. Department of Transportation, 31 Cal.App.5th 200 (2019), that Caltrans’ physical occupation, without compensation, of a strip of land fronting State Highway 12 in the County of Calaveras to make highway improvements was a valid acceptance of an offer of dedication that did not amount to a taking under the law of inverse condemnation.

Continue Reading Caltrans’ Acceptance of Offer of Dedication by Physical Occupation Does Not Lead to Takings Liability