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

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.

Continue Reading Santa Barbara Liable for Taking Private Property When its Permit Denial Made Clear no Development Would be Allowed

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.

Continue Reading Supreme Court Wrestles with Line Drawing in an Important Property Rights Case Addressing Physical Taking Rules in the Context of Labor Union Organizing Laws

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).


Continue Reading Supreme Court Again Declines to Hear Major Property Rights Case, Leaving in Place Hopelessly Muddled Takings Doctrine

In a concise December 7, 2020 opinion, Hotop v. City of San Jose, __ F.3d __ (2020) (Case No. 18-16995), a 3-0 panel of the Ninth Circuit Court of Appeals affirmed the district court’s dismissal of an action alleging that portions of San Jose’s “Apartment Rent Ordinance” violated the Fourth, Fifth, Fourteenth, and Contracts Clause rights of individual apartment owners and an unincorporated trade association of San Jose landlords.  The challenged regulations require landlords to disclose information about rent stabilized units to the City and condition landlords’ ability to increase rents on providing that information.  In essence, the regulations limit rent increases on approximately 38,000 apartments in San Jose.  Although the regulations have existed in various forms since 1979, San Jose remains one of the least affordable communities in the United States.

Continue Reading City “Apartment Rent Ordinance” Survives Constitutional Challenge by Landlords

On November 13, 2020, the U.S. Supreme Court issued an order granting certiorari in Cedar Point Nursery v. Hassid.  The question presented in the successful cert petition is “whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.”

Continue Reading Supreme Court Decides to Hear Important Property Rights Case Addressing Whether Time-Limited Easements Are a Physical Taking Under Per Se Rules

On November 5, 2020, in AMCAL Chico LLC v. Chico Unified School District, __ Cal.App.5th __ (2020) (Case No. C087700), a case involving the Chico Unified School District’s imposition of school impact fees on a dormitory complex to house unmarried Chico State University students, the Third District Court of Appeal affirmed a trial court decision rejecting a developer’s suit seeking a refund of the fees.

Continue Reading School District Not Required to Evaluate Impact of Private University Housing Project Before Imposing Impact Fees

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