• Posts by Benjamin Z. Rubin
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    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 ...

Posted in Court Decisions

In a recent published decision, the California Court of Appeal had the opportunity to address this issue when the property owners of a beachside residence in the City of Los Angeles challenged a setback condition that the California Coastal Commission imposed on their proposed home remodel.  (See Greene v. Cal. Coastal Com. (Oct. 9, 2019) Case No. B293301.)


Background

Under the Coastal Act, property owners are required to obtain a Coastal Development Permit for “development” within the coastal zone.  “Development” is defined very broadly in the Coastal Act, and includes ...

Posted in Court Decisions

For more than three decades, most property owners have been relegated to state courts when pursuing a takings claim against a state or local agency.  In a 5-4 decision issued this week, the U.S. Supreme Court reversed itself and opened the door to the federal courthouse, allowing property owners to bypass the state courts and file a Fifth Amendment takings claim in federal court in the first instance.  Knick v. Township of Scott, 588 U.S. __ (June 21, 2019).  What this eventually means for property owners, and the federal courts, only time will tell.  However, one can reasonably assume that ...

The California Coastal Act establishes another layer of regulation governing development in the Coastal Zone. Development under the Coastal Act is defined to encompass essentially everything and anything.  For example, under the Coastal Act development includes such things as a lot line adjustment, releasing fireworks on the 4th of July, or putting up a No Trespassing sign.  While there are certain limited exemptions, in most cases individuals undertaking any development in the Coastal Zone must obtain a Coastal Development Permit.  In certain instances, the local agency’s ...

Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court’s recent decision in Horne v. Dep’t of AgricultureNo. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence.  (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015).  In Horne, the U.S. Supreme Court held, in an 8-1 decision, that the forced appropriation of a portion of a farmer’s raisin crop qualified as a clear physical taking requiring compensation under the Fifth Amendment to ...

Posted in Court Decisions

2013 was a banner year for developers under the takings clause, as both the U.S. Supreme Court and California Supreme Court issued decisions expanding the developers’ ability to challenge exactions as unconstitutional. In Koontz v. St. Johns River Water Management District, the U.S. Supreme Court held that the essential nexus and rough proportionality standards that apply to government property exactions also apply to monetary exactions that are tied to a governmental approval. And in Sterling Park v. City of Palo Alto, the California Supreme Court held that when a public ...

It depends.  A recent decision out of the Federal Circuit tackled this very issue, and the court's decision strongly suggests that a taking could arise under the right circumstances.  (Filler v. U.S. (Fed. Cir. Mar. 10, 2015) Case No. 2014-5117.)  As you probably already guessed by my use of the phrase "strongly suggests," both the lower court and the Federal Circuit in this case found that the plaintiff's challenge did not present the "right circumstances."

After sustaining a work-related injury, an employee of the U.S. National Marine Fisheries Service visited the ...

The burning question, is why?  While this is not the first time the U.S. Supreme Court has ever granted a petition for review in the same case, it is certainly not common.  And, it is downright uncommon for the Supreme Court to grant a second petition for review when the central issue in the case is a takings issue.  So what is the Supreme Court planning to do?  Are they going to revisit their 2013 decision and find that they made a mistake, and that the Hornes are actually required to first bring their takings claim in the Court of Federal Claims?  Or, is the Supreme Court ...

In September 2014, the Court of Appeal for the Fourth Appellate District issued a surprising decision, finding that even if an applicant maintains that it is accepting imposed permit conditions "under protest" and expressly asserts that it plans to challenge those conditions in court, it waives any such challenge by building the approved project.  (Lynch v. California Coastal Commission (2014) 229 Cal.App.4th 658.)  In reaching this conclusion, the majority found that the protest procedure provided in the Mitigation Fee Act was inapplicable because that Act does not ...

Posted in New Legislation

On November 24, 2014, the Federal Highway Administration (FHWA) published a proposed rule that would amend the regulations governing how Federal grant recipients acquire, manage, and dispose of real property.  Thus, the proposed rule, if it becomes final, has the potential to impact the daily operations of transportation agencies all across the United States.  Some of the more notable proposed revisions include:

  • Broader authority for public agencies to proceed with construction contract bidding when the agency has not acquired all real property interests needed for the ...
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The question now is, is the court's statement merely a bump in the road or a roadblock?  The United States filed the eminent domain action seeking to condemn certain access rights so it could increase its profitability when it sold vacant federal land in Alameda County, California.  In its complaint and declaration of taking, the United States alleged that it needed to condemn the property interest for the "continuing operations" of the Alameda Federal Center.  In support of the taking, the United States relied on the General Service Administration's general authority.  The federal ...

In a published decision, the California Court of Appeal for the Second Appellate District rejected the California Coastal Commission's ("Commission") collateral estoppel argument and found that there is no rational nexus or rough proportionality between the work proposed by an applicant on a private residence a mile from the coast and a lateral public access easement imposed by the Commission as a condition of approval.  Accordingly, the easement condition amounted to an unconstitutional taking.  (Bowman v. Cal. Coastal Com. (Oct. 23, 2014).)

In 2002, the property owner of ...

Posted in Events

Just in case you lost track of the Martins Beach saga, here is a quick summary and update.  According to reports, a couple of years after billionaire Vinod Khosla bought beachfront property in San Mateo County for over $30 million, his property manager locked a gate to a private access road on the property.  This access road, however, in addition to providing access to the property's residence, also had been used by the public to access Martins Beach (the parties do not agree as to whether the public use was permissive or under claim of right).

Following the gate closure, lawsuits have been ...

Posted in Court Decisions

If you ask ten attorneys what keeps them up at night, at least six of them will recount nightmares about missing a filing deadline.  I know what you're thinking.  How hard can it be?  You just look in the Code, find the applicable limitations period, and then you're off.  However, as with all things law related, it very rarely is that simple.  In a recent decision issued by the Second Appellate District, the court explained why filing deadlines are not the only thing practitioners should have nightmares about.  In Excelaron, LLC v. County of San Luis Obispo

Posted in Projects

On June 10, 2014, President Obama signed into law the Water Resources Reform and Development Act of 2014, which, among other things, streamlines the U.S Army Corps of Engineers' infrastructure authorization process, accelerates project delivery, and authorizes federal funding for a variety of projects, including projects in California.  Among these California projects is the San Clemente Shoreline project, which includes construction and continuing maintenance of coastal protection measures along the San Clemente shoreline. 

Under the proposal that ...

Posted in Court Decisions

In June of last year, the U.S. Supreme Court issued a unanimous opinion in Horne v. Department of Agriculture holding that California raisin handlers could assert a takings claim as an affirmative defense to an enforcement action filed by the United States.  I am happy to point out that in our analysis of the Supreme Court's decision, we explained that "[n]o court has yet found that the Hornes were subject to an unconstitutional taking; rather, the Supreme Court merely held that the jurisdictional argument relied on by the Ninth Circuit to avoid a decision on the merits was ...

Posted in Court Decisions

As we reported last month, the United States of America and the Federal Aviation Administration had filed a motion to dismiss a lawsuit brought by the City of Santa Monica in federal court seeking to confirm its alleged right to control the fate of the Santa Monica Airport.  Yesterday, the federal court threw out the City's lawsuit, holding that:

  • The Quiet Title Claim was time-barred;
  • The takings claim had to be brought before the United States Court of Federal Claims pursuant to the Tucker Act; and
  • The Tenth Amendment and Fifth Amendment Due Process Claims were not ripe.  

The federal court ...

Posted in Events

As recently reported by Aaron Kinney of the San Mateo County Times, State Senator Jerry Hill is planning to introduce legislating requiring the California State Lands Commission to acquire the private property of a Silicon Valley billionaire.  According to the report, after buying beachfront property for $37.5 million, Vinod Khosla, whose net worth was estimated at $1.5 billion as of September 2013, decided to preclude the public from using a private access road leading to his property and the beach.  Some local residents were apparently upset by the closure ...

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Posted in Court Decisions

Earlier this month, the California Court of Appeal answered a question that had been outstanding for almost two decades: What standard of review applies to beneficial spot zoning? In Foothill Communities Coalition v. County of Orange, that question was finally answered when the Court held that beneficial spot zoning will be valid only when the record demonstrates that the zoning is "in the public interest."

In 1996, Associate California Supreme Court Justice Stanley Mosk stated in a concurring decision that although courts are traditionally deferential with respect to zoning ...

Posted in Projects

On July 6, 2012 President Obama signed into law MAP-21, which, among other things, contained new National Environmental Policy Act ("NEPA") requirements for the Federal Transit Administration ("FTA") and Federal Highway Administration ("FHWA").  Earlier this month, pursuant to a mandate in MAP-21, FTA and FHWA adopted new regulations governing the implementation of two new categorical exclusions.  The two new categorical exclusions apply to (1) projects within an existing right-of-way, and (2) projects receiving limited Federal funding.  

NEPA is the ...

Posted in Court Decisions

On October 31, 2013, the City of Santa Monica filed a complaint in federal court against the United States of America and the Federal Aviation Administration ("FAA") with the hope of confirming its alleged right to control the fate of the Santa Monica Airport.  Both sides agree that:  (i) the City leased the airport property to the United States in 1941 to support the war effort, (ii) the United States made substantial improvements to the property, (iii) the United States terminated the lease in 1948, (iv) the 1948 instrument terminating the lease contained a reversionary clause, and ...

Posted in Court Decisions

In the second flooding decision issued by the U.S. Court of Appeals for the Federal Circuit in the past two weeks, the court held that there was no physical taking because the property was never actually flooded and no de facto taking because no federal entity or regulation prohibited the plaintiffs from using their property.  (See Stueve Bros. Farms, LLC v. United States (No. 2013-5021, Dec. 11, 2013).)

In 1941, the U.S. Army Corps of Engineers completed the construction of the Prado Dam on the Santa Ana River near Corona, California.  Because the Army Corps anticipated that operation of ...

Posted in Court Decisions

As you may recall, last December we reported on the U.S. Supreme Court's decision in Arkansas Game and Fish Commission v. United States, in which the Supreme Court held that government-induced flooding of limited duration may be compensable.  (See Supreme Court Holds Temporary Flooding Can Be A Taking.)  The Supreme Court explained that the relevant factors in determining whether a temporary flooding rises to the level of a compensable taking include:  (i) the degree to which the invasion is intended or is a foreseeable result of authorized government action, (ii) the ...

Posted in Projects

Caltrans and the Amador County Transportation Commission have scheduled a public workshop for the proposed State Route 88 Pine Grove Improvements Project for tonight at 5:30 p.m.  The workshop will take place at the Pine Grove Town Hall, located at 19889 Highway 88, Pine Grove, California 95665.  The notice for the public workshop states that Caltrans and the County Transportation Commission have proposed "to modify State Route 88 through the Town of Pine Grove in order to reduce congestion, improve operations and enhance safety between the intersections at Climax Road and Tabeaud ...

Posted in Court Decisions

Yesterday, the California Supreme Court decided one of two pending cases dealing with inclusionary housing, holding that when a public agency requires a developer to convey units at below market rates and make substantial cash payments, the developer may challenge these conditions under the California Mitigation Fee Act.  (Sterling Park v. City of Palo Alto (Oct. 17, 2013) 2013 Cal. Lexis 8112.)  The California Supreme Court’s decision clarifies the scope of the Mitigation Fee Act, confirming that inclusionary in-lieu fees are subject to the essential nexus and rough ...

Posted in Court Decisions

As reported by our colleague Robert Thomas on inversecondemnation.com, the California Supreme Court granted the California Building Industry Association's (CBIA) petition for review in California Building Industry Association v. City of San Jose.  The case will be the first test in California post-Koontz on whether the nexus/proportionality requirements apply to general regulations such as affordable housing exactions.

The CBIA filed the petition after the Court of Appeal for the Sixth Appellate District reversed and remanded the Superior Court's decision ...

I'll give you a hint, this is a bit of a trick question.  Give up?  Okay.  Whenever you name a State agency, of course. 

In Lavine v. State of California (pdf), a property owner filed a lawsuit after the Regional Water Quality Control Board adopted, and the California State Water Resources Control Board approved, a ban on on-site septic systems in Malibu.  (Case No. B238030, Aug. 20, 2013, Unpublished.)  The plaintiff owned a single-family residence in Malibu that utilized an on-site septic system; no public sewer system was available to residences in the area.  Although the ...

Posted in Court Decisions

In 1985, the U.S. Supreme Court issued Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, a landmark decision (as Supreme Court decisions often are) that drastically slashed the number of federal takings claims.  In Williamson County, the Supreme Court held that courts lack jurisdiction over federal regulatory takings claims unless a final decision has been issued and the property owner has exhausted all "adequate State procedures."  The Supreme Court also clarified that exhaustion of adequate State procedures generally requires ...

Posted in Right to Take

The House of Representatives has once again resurrected the "Private Property Rights Protection Act" (HR 1944), a bill that would limit the power of eminent domain on a nationwide scale.  I say once again, because as we reported in 2012 (see January 26, 2012 post by Brad Kuhn), the House Judiciary Committee approved a nearly identical bill by an overwhelming 23-5 vote, only to have the bill languish on the House floor.  The vote this time around, however, was nowhere near as emphatic, as the bill barely passed out of the Subcommittee on the Constitution and Civil Justice with a skimpy 5-3 ...

Posted in Court Decisions

An eminent decision out of the Ninth Circuit United States Court of Appeals is not a common occurrence.  A Ninth Circuit eminent domain decision dealing with intangible property is even less common.  Yet, on April 26, 2013, the Ninth Circuit took it even one step further, issuing an eminent domain decision dealing with intangible property in which the condemning authority is an Indian Tribe.

Having explained just how rare it is to see this type of decision, I now need to make a confession.  While the Ninth Circuit decision arises out of an eminent domain action in which an Indian Tribe is ...

Posted in Projects

As reported earlier today by a number of news outlets (see for example this KCET article by Chris Clarke), the Bureau of Land Management ("BLM") will be issuing a Final Rule to facilitate right-of-way applications for lands with wind and solar energy development potential.  As explained in the press release issued by the BLM, in the past

"lands included in a proposed right-of-way [would] remain open to the location and entry of mining claims while the BLM" considered the application.

However, the Final Rule, which will be published in the Federal Register, permits the BLM to temporarily ...

Posted in Court Decisions

What happens when a property owner unknowingly pays the electricity bill on a city-owned parking lot for over 15 years?  If you said nothing, then you get a gold star.

In Murphy v. City of Sierra Madre (pdf), a recent decision out of the Second Appellate District, the plaintiffs-appellants were the subsequent owners of a piece of property originally purchased from the City through a Disposition Development Agreement.  When the City originally transferred the property, it also mistakenly transferred an adjacent electrical meter for a City-owned parking lot.  As a result, from ...

Posted in Court Decisions

On February 27, 2013, the U.S. Court of Appeals for the Federal Circuit affirmed (pdf) the dismissal of a Fifth Amendment takings claim based on the finding that the claim was "not ripe."  The claim is unusual because it arose in the context of the federal Endangered Species Act (ESA).

Casitas Municipal Water District (Casitas) has a contract with the federal Bureau of Reclamation and a license with the State of California authorizing it to divert water for the Ventura River Project (Project).  The contract with the Bureau of Reclamation states that Casitas ...

Posted in Right to Take

Before you get your hopes up, this is not a reference to "Opposites Attract" by Paula Abdul, and I will not be singing.  Rather, I am referring to the Montana Legislature's recent decision to repeal a two-year-old law that gave private power-line developers the authority to condemn private property.  The 2011 law was passed in order to override a state court decision prohibiting the use of eminent domain for private power-line development.  As reported in the Independent Record, supporters of the repeal effort believe "that the law gave unprecedented power to private companies to run ...

Posted in Court Decisions

Earlier this week, in an unpublished decision (pdf), the Ninth Circuit affirmed the denial of compensation for construction that altered a point of access to an existing business.  (Wardany v. City of San Jacinto (9th Cir. 2013) 2013 U.S. App. LEXIS 3463.) 

For those readers who never forget a post, you probably recall that we discussed the district court's decision a couple of years ago.  (See Brad Kuhn's June 1, 2011 Blog Post.)  For the rest of us mortals, here is a quick summary.   The property owner operated a "One Stop Market" that vehicle traffic could access ...

Posted in Court Decisions

In Lost Tree Village Corporation v. United States, the Federal Circuit addressed this question head on, concluding, to the surprise of no one, that the answer will largely depend upon the unique facts in each case. 

The question arose because the Army Corps of Engineers denied Lost Tree Village Corporation (Lost Tree), a commercial and real estate developer, a permit to fill wetlands on a 4.99 acre plat.  The 4.99 acre plat (Plat 57), along with one other plat (Plat 55) and some scattered wetlands, were holdovers from various properties totaling ...

Posted in Projects

As recently reported in the San Clemente Times, Caltrans is scheduled to begin construction on the Interstate 5/Ortega Highway Interchange project in mid-February.  (See Brian Park's article in the San Clemente Times, Jan. 10, 2013.)   The project, which will reconfigure the Ortega Highway bridge and a number of on-ramps and off-ramps in order to relieve congestion, has had substantial impacts on property owners and businesses.  According to the article, Caltrans anticipates having a complete project schedule by the end of the month.     

Posted in Court Decisions

After passing on a number of Fifth Amendment issues in recent history, the U.S. Supreme Court is scheduled to hear three cases this term in which the takings clause plays a prominent role.  And today, the Court addressed the first of these three cases, holding that a temporary-flooding can result in a taking requiring just compensation under the Fifth Amendment.  

In Arkansas Game and Fish Commission v. United States, the Arkansas Game and Fish Commission argued that a temporary but reoccurring flooding of its property resulted in a taking requiring just compensation.  The ...

Posted in Court Decisions

When I was a child, a long long time ago, I learned the importance of paying attention to detail.  While I will not bore you with the details of my adolescence and the shenanigans that forced my parents to drive home this message, I will tell you that I certainly learned to always cross my T's and dot my I's.  Late last week, the California Court of Appeal issued an unpublished decision in Compton Unified School District v. Hassan, Case No. B233412, prohibiting an after-the-fact challenge to a condemnation order issued almost two years prior, largely on the ...

Posted in Court Decisions

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 ...

Posted in Court Decisions

On August 30, 2012, the Second Appellate District of the California Court of Appeal held that a privately owned utility could be subject to strict liability for inverse condemnation, thereby concurring with a similar holding previously reached out of the Fourth Appellate District.

A typical inverse condemnation action is initiated when a property owner files a complaint essentially asserting that a government agency is trying to take its property without filing a formal eminent domain action.  Typical inverse condemnation claims involve ...

Posted in Court Decisions

Yes!  And two separate groups recently learned this fact the hard way.  On April 17, the Eastern District of California issued two separate decisions dismissing two separate inverse condemnation claims with prejudice because the plaintiffs did not have an independent property interest in the subject property.  In Abarca v. Merck & Co. (E.D. Cal. Apr. 17, 2012) Case No. 1:07-cv-0388, a group of minor plaintiffs and a group of non-owner landscape plaintiffs filed an action against the County of Merced, the Merced Irrigation District, and Merced Drainage District ...

Posted in Court Decisions

Last year I saw Win Win, a movie starring Paul Giamatti, Amy Ryan and Jeffrey Tambor.  The movie, besides receiving critical acclaim, had two hooks for me.  One, the protagonist in the movie is an attorney.  I am a sucker for almost any lawyer movie.  (I still say My Cousin Vinny is one of the best 50 movies of the past 50 years.)  And two, the movie included wrestling.  No, not the Hulk Hogan and Macho Man Randy Savage stuff.  I mean the real folkstyle wrestling that occurs every 4 years at the Olympics and at the collegiate level. 

My dad was a college wrestler, which is probably why ...

Posted in Court Decisions

California provides a special procedural remedy whenever a lawsuit implicates a defendant's First Amendment right to petition or free speech.  The procedure is commonly referred to as the "anti-SLAPP."  (SLAPP is an acronym for Strategic Lawsuit Against Public Participation.)  Under this procedure, the trial court evaluates the merits of the lawsuit using a summary judgment like process, often at an early stage of the litigation.  In a recent unpublished decision, the California Court  of Appeal affirmed the propriety of applying this procedure when a plaintiff is ...

Posted in Court Decisions

Reflecting on the Golden Age of Saturday Night Live, icons such as Chevy Chase, Bill Murray, Gilda Radner, Steve Martin, Jane Curtin, and Dan Aykroyd jump to mind.  As such, it should come as no surprise that one of my favorite recurring characters has always been Emily Litella.  An old lady who would spend a minute or so railing against some ridiculous topic premised on a mistaken understanding of some headline or story, only to conclude with a sweet "never mind" after the error was pointed out to her.  In a recent per curiam decision by the United States Court of ...

Posted in Court Decisions

On January 19, 2012, the California Court of Appeal issued an unpublished decision addressing this very question.  Specifically, in Flying J, Inc. v. Department of Transportation, Case No. F060545, the Court of Appeal affirmed the dismissal of plaintiff's claim for lost profits, finding that plaintiff's evidence was not sufficiently comparable in character and its calculations relied on too much conjecture about future events.      

Plaintiff Flying J operates truck stops.  In 1997, it purchased an 18.8 acre parcel adjacent to State Routes 14 and 58 in the Mojave ...

Posted in Projects

As recently reported by Jason Plautz at E&E in his article "Bipartisan lawmakers seek $13.8B for infrastructure improvements," members of the Transportation and Infrastructure Committee are discussing a potential bipartisan bill that would provide approximately $13.8 billion in funding for wastewater infrastructure projects, and several billion in alternative financing for clean water infrastructure projects. 

According to the draft bill summary, the bill would "create thousands of new, domestic jobs in the construction and wastewater-support sectors through ...

Posted in Court Decisions

You may recall that last year in Ridgewater Associates LLC v. Dublin San Ramon Services District, the California Court of Appeal held that a subsequent purchaser cannot recover for inverse condemnation where (1) it knowingly purchases property impacted by a government taking, and (2) the purchase price reflects the property's condition in light of the government impacts.  See Buyer Beware: Improper Sale Documentation Results in Waiver of Inverse Condemnation Claim by Brad Kuhn and Rick Rayl.  While the decision was originally published at 184 Cal.App.4th 629, the ...

Posted in Court Decisions

On July 29, 2011, the California Court of Appeal issued an unpublished decision confirming that when condemned property is subject to a roadway easement, and the property owner fails to demonstrate that there is "something special attaching to it," regardless of how the property is ordinarily bought or sold, the landowner is only entitled to nominal value.

In People ex rel. Department of Transportation v. Bakker, No. F060030, the California Department of Transportation (Department) condemned 18.13 acres of land belonging to the Bakkers, 4.4 acres of which were subject to a ...

As originally reported by Robert Thomas at inversecondemnation.com, a petition for certiorari was filed asking the U.S. Supreme Court to address "[w]hat category of takings are subject to heightened judicial scrutiny, and when is the risk of undetected favoritism so acute that an exercise of eminent domain can be presumed invalid?"  While Justice Kennedy brought this issue to the national stage when he raised the possibility of such conduct in a recent concurrence, as of today, and likely tomorrow, the question remains unanswered. 

In Kelo v. City of New ...

California Eminent Domain Report is a one-stop resource for everything new and noteworthy in eminent domain in California. We cover all aspects of eminent domain in California, including condemnation, inverse condemnation, and regulatory takings. We also keep track of current cases, project announcements, budget issues, legislative reform efforts, and report on all major California eminent domain conferences and seminars.

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