Inverse condemnation claims can be tricky, particularly in the regulatory context. You don't want to file your claim too soon, as that will likely result in your claim being booted out of court on ripeness grounds. But you also don't want to file your claim too late, as that can result in your claim being barred by the applicable statute of limitations. It is a delicate balance, and one that can often defy logic. (For a real world example of this Catch 22, see Brad Kuhn's Blog Post.) Last week, in Rivera v. County of Solano, Case No. A133616, the California Court of Appeal had occasion to address this very issue.
In 2011, the County of Solano adopted an ordinance generally limiting the number of roosters that may be kept on a single parcel of land to 4 or less. The ordinance, however, expressly stated that it did not apply to "commercial poultry ranches whose primary commodity is the production of eggs or meat for sale as permitted by the County . . . or to legitimate poultry hobbyists as approved in writing by the Agricultural Commissioner . . . ." The plaintiffs, self-proclaimed poultry hobbyist who had approximately 60 roosters and 40 hens on their property, alleged that the adoption of the ordinance resulted in a taking, violated their constitutional rights, and was preempted by state and federal law. The trial court granted the County's demurrer without leave to amend. A key component of the trial court's holding with respect to the inverse claim was the finding that plaintiffs' claim was not ripe because they had failed to exhaust their administrative remedies, as they had not sought a final determination from the Agricultural Commissioner as to whether they were "legitimate poultry hobbyists." Disappointed with the result, plaintiffs appealed. The Court of Appeal, however, upheld the dismissal, essentially taking the analytical baton from the trial court and running with it.
The Court of Appeal explained that in order for a regulatory takings claim to be ripe the plaintiff must demonstrate that it has: "(1) obtained a final decision from the governmental authority charged with implementing the regulations . . . , and (2) pursued compensation through the state remedies unless doing so would be futile." And, because the plaintiffs failed to seek a determination from the Agricultural Commissioner, the Court of Appeal found that they could not satisfy this burden. In reaching this conclusion the Court of Appeal dismissed the plaintiffs' futility argument, which was premised on the assertion that the Agricultural Commissioner would not grant the necessary variance. Specifically, the Court of Appeal stated that the "[p]laintiffs' mere speculation that any such request would be denied is insufficient to trigger the futility exception." Accordingly, the Court of Appeal affirmed the trial court's dismissal of the inverse claim on ripeness grounds; the Court of Appeal also affirmed the dismissal of plaintiffs' other claims.
Although ripeness can be a tricky issue, particularly in the regulatory context, the Court of Appeal's recent decision is a stark reminder of the need to give the issue its due consideration. And, just because I can't help myself, one can also say that the decision is a reminder to property owners to make sure that they get their ducks (or roosters) in a row before they file a complaint.
Ben Rubin assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters dealing with the Federal and State Endangered Species Act ...
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