California Eminent Domain Report : a blog following condemnation, inverse condemnation, and regulatory takings written by attorneys with Nossaman LLP.

Yesterday, we wrote about the Avenida San Juan Partnership v. City of San Clemente decision.  For more information on the decision, see the following:

• Our E-Alert, Court of Appeal Upholds Regulatory Takings Decision Under Penn Central Test;
• Man Bites Dog! California Property Owner Wins Regulatory Taking Case in the California Court of Appeal, a blog post by Gideon Kanner on Gideon's Trumpet;
• Either Reverse Your Unconstitutional Spot Zoning, Or Pay. Your Choice, by Robert Thomas on his inversecondemnation.com blog; and
• Eminent Domain: Winning Owner In Inverse Condemnation Battle Cannot Recoup Fees By Attorney Owner Or Reap A Fee Multiplier Request, a piece in California Attorney's Fees focused, not surpisingly, on the attorneys' fees portion of the opinion.

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Last April, we reported on a bizarre case arising out of the City of San Clemente's attempt to down zone a piece of property.  The trial court had concluded that the down zoning constituted a taking and ordered the City to rescind a decision supported by that down zoning.  The City had denied an application to develop the property because the application did not conform to the current general plan and zoning ordinance (the City seems to have sidestepped the fact that the development applications included applications to amend the general plan and zoning). 

In addition to a writ of mandate ordering the City to rescind its decision, the Court also awarded damages of $1.3 million, representing the overall value of the property ($2.8 million), less the anticipated cost to build a driveway needed to support its development ($1.5 million).  Following a post-trial motion, the Court amended the judgment to make clear that the City had the choice of either (1) rescinding the denial based on the down zoning or (2) paying the damages award.

Yesterday, the Court of Appeal issued its decision in Avenida San Juan Partnership v. City of San Clemente.  It upheld the writ and the determination that the owner was entitled to a damages award, but it remanded the case for recalculation of the amount of the award.  It's a long, complicated opinion, and we'll just hit some of the high points for now.

Spot Zoning.  The Court held that the City had specifically targeted this property for down zoning, leaving it as an "island" of "minimum lot size zoning in a residential ocean of substantially less restrictive zoning."  It didn't help that the enabling legislation that created the new RVL (residential, very low) zoning had described the zone as intended for preserving "open space in canyons" by rezoning "significant acreage."  The subject property was less than three acres - and not located in a canyon.  This was enough to qualify as "irrational discrimination" under cases such as Hamer v.
Town of Ross (1963) 59 Cal.2d 776 and Arcadia Development Co. v. City of Morgan Hill (2011) 197 Cal.App.4th 1526, 1536.   

Penn Central and "Economically Viable" Uses.  The City argued that its action fell short of a regulatory taking, as a matter of law, because the RVL zoning did not leave the owner with no economically viable use of he property, a fatal flaw under Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003.  The Court held that this view "is too limited," and that a taking occurs where a regulation goes "too far," even if some economically viable use remains.  (See Palazzolo v. Rhode Island (2001) 533 U.S. 606.)   Where this occurs, courts look to the "Penn Central" test, which the California Supreme Court has held contains three "core" factors:

1. The economic effect on the landowner;
2. The extent of the regulation's interference with investment-backed expectations; and
3. The character of the governmental action.

The Court quickly concluded that all three factors "readily appl[ied]" in this case. 

Timeliness.  As we have reported in the past, regulatory takings claims often fail on procedural grounds, either because they are too late, missing the applicable statute of limitations, or because they are premature, failing on ripeness grounds.  (We've even seen cases, such as MHC Financing Limited Partnership Two v. City of Santee, where claims failed because they were both too late - and too early.) 

Here, the City argued that the owner waited too long to challenge the RVL zoning.  The Court disagreed, concluding that the statute began to run on the challenge only when the City denied the owners' development applications in 2007.   The Court went through a painstaking analysis of the difference between "facial" and "as applied" challenges, holding that the owners' challenge clearly fell on the "as applied" side of the ledger, making it timely. 

The City also argued that the owners' claim was not ripe because the owners failed to apply for entitlements to build what the RVL would have allowed them:  a single dwelling.  The Court rejected this argument as well, holding that under Palazzolo, the City's denial of the application qualified as final. 

Damages.  The Court examined closely the damages award, ultimately concluding that the trial court's methodology was flawed.  The trial court had performed a simple analysis, taking opinions of the value of the property absent the RVL zoning, and subtracting out the cost the owners would have incurred to build the (expensive) driveway necessary to support the property's development. 

The Court correctly noted that this methodology ignores the fact that the takings conclusion was premised on on the Penn Central test, not a "no economically viable use" theory.  Because of this, damages had to take into account the fact that the property still has some value, even with the RVL zoning in place:  "A very large taking is not a total taking."

There were a number of other issues addressed in the Court's opinion, including an interesting attorneys' fees discussion, but I think they go beyond the scope of a blog post.   As we digest the opinion a bit further, we'll probably have more to say.

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We've covered in the past regulatory takings claims and the benchmark three-prong Penn Central test for analyzing potential liability.  We've also noted the issues involved in consistently applying those factors, and the resulting unpredictibility in evaluating the merits of potential regulatory takings claims.  

William Wade, Ph.D., a resource economist with the firm Energy and Water Economics, often writes about these issues, offering clearly articulated potential solutions to dealing with these Penn Central issues.  And Mr. Wade has done it again, as his recent article, Sources of Regulatory Takings Economic Confusion Subsequent to Penn Central appearing in the Environmental Law Reporter, is another fine piece of work.  Among other insights, Mr. Wade explains that

Courts have confused ad hoc considerations of case facts with economic valuation methods, which are not ad hoc."

We recommend checking out our colleague Robert Thomas' blog post about Mr. Wade's article at inversecondemnation.com.  And, as a shameless plug, take note of Mr. Wade's "Author's Note," paying thanks to yours truly for help with the article.  It was a truly enjoyable -- and honorable -- experience working with one of the foremost economic experts in the field of regulatory takings.

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When analyzing potential liability for a regulatory takings claim, most land use and eminent domain attorneys immediately look to the three-prong test set forth by the U.S. Supreme Court in Penn Central Transportation Co. v. New York City (1978) 438 U.S. 104.  Those three factors include:

• the economic impact of the regulation;
• the extent to which the regulation has interfered with distinct investment-backed expectations; and
• the character of the government's regulation.

Unfortunately, it's much easier said than done.  Practitioners and courts alike have struggled over the years in (1) deciding how to measure a regulation's economic impact and (2) determining whether the regulation has interfered with an owner's "distinct investment-backed expectations."  This is especially true given the Supreme Court's direction that each case deserves an independent, "ad hoc" factual inquiry.

William Wade, an expert in financial economics, has prepared an excellent article addressing what has resulted from this perplexity:  unpredictability in evaluating the merits of regulatory takings claims.  Mr. Wade's article, "A few thoughts about origins of confusion subsequent to Penn Central," suggests this stems from "too much talk and not enough math," as the calculations are straight-forward for financial experts, yet the waters are muddied through the courts' reluctance to apply economics and analyze income losses as opposed to property value depreciation.

For example, Mr. Wade suggests that while an appraisal may accurately measure a change in a property's value, it does not accurately measure economic losses to the owner of an income-producing property.  For purposes of analyzing a temporary regulatory taking, Mr. Wade urges us not to consider the property's percentage decline in value, but instead the property owner's change in income.  This is how damages are calculated in tort cases, and Mr. Wade advocates that damages in regulatory takings cases should be no different.

Mr. Wade sums up his article with the conclusion that "[u]ntil the Supreme Court puts an end to faulty understanding of economics within the Penn Central test, . . . widespread confusion of takings jurisprudence will persist."  

The recent Guggenheim Ninth Circuit en banc decision (pet. denied May 16, 2011) turns out be be consistent with standard economics expressed by the Court in Loveladies Harbor, Inc. v. U.S. (Fed. Cir. 1994) 28 F.3d 1171, 1177: 

[T]he owner who bought with knowledge of [a particular] restraint could be said . . . to have assumed the risk of any economic loss.  In economic terms, . . . the market had already discounted for the restraint, so that a purchaser could not show a loss in his investment attribu[table] to [the regulatory action]." 

While more recent Federal Circuit cases have confounded basic economics, Loveladies made sense at the time and rings true in Guggenheim.  Take a look at Mr. Wade's article for yourself.

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We thought it was over in 2009 when the Ninth Circuit held that the City of Goleta's rent control ordinance constituted a taking.

We thought it was over in late 2010 when an en banc Ninth Circuit panel ruled the other way, holding that the property owner failed to establish the "investment-backed expectations" necessary to establish a takings claim under Penn Central.

Now, we're not sure if it's ever going to be over.  Apparently, Dan Guggenheim has decided to seek review by the U.S. Supreme Court, so there may yet be more drama for the long-playing battle between the Guggenheims and the city over a mobile home rent control ordinance that the parties seem to agree has the effect of transferring the vast majority of the mobile home park's value to the tenants. 

So what happens now?  First, the Guggenheims must actually file their Petition for Writ of Certiorari, asking the Supreme Court to review the case.  Then, the Court decides whether it wants to review the case, and it's a serious uphill battle.  The Court receives thousands of petitions each year and it typically selects only about 100 of them for review.  In other words, based on the math alone, the Guggenheims aren't likely to see the inside of those hallowed halls. 

But some cases are more likely than others to pique the Justices' interest (four must agree that review is warranted), and controversial land use cases that have garnered media and practitioners' interests - and that have generated multiple, conflicting decisions by separate panels of a federal Circuit Court - probably have a greater likelihood of being chosen then most cases. 

Add to this that the decision comes out of the Ninth Circuit - which has a well-documented reputation for receiving far more than its share of decisions selected for review - and the Guggenheims probably have a decent shot (of course, even if these factors make the case five times more likely to be selected than a typical case, that still probably means only about a 10% chance of being reviewed).

And if the Supreme Court grants review?  Obviously each case is reviewed on its own merits, but according to an analysis of ten years' worth of Supreme Court review, the Ninth Circuit was reversed (or had its decision vacated) 80% of the time and affirmed 20% of time.  In other words, the Guggenheims' odds once they get there are a whole lot better than the odds of getting there in the first place.

We'll let you know what happens.

UPDATE:  February 4, 2011, 4:00 p.m.  Since publishing this post earlier today, I've gotten feedback from several sources, some from people involved in the case and some from other interested observers.  The one consistent comment is a belief that the chances of Supreme Court review are quite a bit higher than I forecast above.   While nobody is telling me they thinks it's a slam dunk, there is some optimism that this really does meet a lot of the criteria the Court looks for when selecting cases.  Stay tuned.

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An interesting battle is raging in the Santa Ynez Valley.  Mattei's Tavern, a "landmark" in Los Olivos for more than 100 years, is slated for a redevelopment plan by its owner.  A local activist group, known as the Valley Alliance, wants to stop the owner's plans.  And one arrow in their quiver has been to nominate the tavern for listing as a historical landmark. 

According to an April 29 article by Kathy Cleary in the Santa Ynez Valley Journal Valley Alliance Historic Landmark Nomination:  Eminent Domain Takeover?, the purpose of the nomination is to give the Historic Landmark Advisory Commission (HLAC) the power to approve (or deny) plans to alter the building.  And (at least according to Ms. Cleary), at least one member of the HLAC has expressed sympathy with the Valley Alliance's goal of stopping the owner's plans. 

What does this have to do with eminent domain?  Maybe nothing.  But the possible designation and assertion of control by the HLAC raises the specter of a regulatory takings claim pursuant to the Supreme Court's seminal decision in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).  That decision established a key, three-part test for analyzing regulatory takings claims: the economic impact of the regulation on the claimant; the extent to which the regulation has interfered with investment-backed expectations; and the character of the governmental action.  

If the owner can prove that the designation and, more particularly, the level of control the designation might place in the hands of the HLAC, meets the three-part Penn Central test, a court may hold that the act constitutes a compensable taking of the owner's property.  Indeed, deciding whether restraints imposed by designation as a historical landmark was the whole point of the Penn Central case (though the court ultimately found that the designation at issue there did not meet the very test established by the case). 

That the owner might assert a claim under Penn Central if the HLAC accepts the property's nomination has not been lost on government officials.  According to Ms. Cleary:

County Counsel has said that decisions on historic landmarking of property without the owners’ consent will be considered in light of the Penn Central eminent domain case.

What happens next?  At the owner's request, the HLAC continued the April 12 hearing on the nomination to its May 10 meeting.  In the meantime, the owner appears to be moving forward with its plans, which are described in more detail in a February 10 article in the Lompoc Record, Debate rages over Mattei’s Tavern future, and a January 19 article in the Santa Ynez Valley News, Landmark protection sought for Mattei’s Tavern,  

Finally, if you're looking for more about the building's history, take a look at a 1974 pamphlet, Mattei's Tavern.

Photo Note:  Image depicts Mattei's as it appeared in about 1888, when it was known as the Central Hotel and was a key stagecoach stop.

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