April 2011

Comes the sad news that Jess S. Jackson, of the renown Kendall-Jackson wine label, has passed away in his Northern California home. Details here (K-J website), here (San Francisco Chronicle), and here (Santa Rosa Press Democrat). Jackson’s biography reveals a life lived very large: winemaker, business mogul, philanthropist, race horse owner.

Add to that list takings lawyer. Before he went full-time into the wine business, Jackson’s law practice included representing property owners in condemnation and regulatory takings cases. Gideon Kanner, a long-time colleague, adds his rememberances here.

Property mavens, remember these cases?

  • Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir. 1987).
  • Del Monte Dunes of Monterey, Ltd. v. City of Monterey, 920 F.2d 1496 (9th Cir. 1990).
  • California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987).
  • United States v. 100

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Continue Reading Jess Jackson: Winemaker Extraordinaire, And Takings Lawyer

The Center for Constitutional Jurisprudence and the Reason Foundation have joined the list of parties (us included) who submitted briefs supporting the cert petition in Guggenheim v. City of Goleta, No. 10-1125 (petition for cert. filed Mar. 11, 2011). Their brief is available here.

In that case, California mobile home park owners are asking the Court to review the decision of a sharply divided en banc Ninth Circuit which held that Goleta’s mobile home rent control ordinance did not work a regulatory taking under Penn Central. because the Guggenheims purchased their mobile home park after it was rent regulated. The brief argues:

Although Amici agree that the Ninth Circuit decision below completely misconstrued this Court’s decision in Palazzolo, the Ninth Circuit was able to do this end-run of Palazzolo because of the underlying incoherence in the test that was first set out in Penn…

Continue Reading Another Guggenheim Amicus Brief: Ninth Circuit “End-Run” Around Palazzolo

Here’s another of the amicus briefs in Guggenheim v. City of Goleta, No. 10-1125. The brief of the National Association of Home Builders argues:

The Ninth Circuit in Guggenheim has rejected the widely held principle that regulatory takings claims run with the land for all subsequent title holders. As a result, the availability of the Fifth Amendment has, for all practical purposes, been eliminated for an entire class of property owners. The Guggenheim decision also creates adverse policy results for both property owners and local communities.

Massachusetts’ high court addressed this issue in Lopes v. City of Peabody, 629 N.E.2d 1312 (Mass. 1994). In Lopes, the court upheld the property owner’s regulatory takings case against an existing zoning ordinance even though the owner has purchased the land with full knowledge of environmental buffers that would limit the property’s development potential. Id. at 1313. The court explained…

Continue Reading Amicus Brief In Guggenheim: Takings Claims Run With The Land

“This is not what we normally do. We do land use, real estate, development law. Heck, I can get you zoning to be an airport if that’s what you want. But I don’t represent inmates, I don’t represent people charged with crime, I don’t represent criminals.”

                                     — Land Use attorney Joshua Safran

In most cases, the worlds of criminal law and land use law never meet. But in Crime After Crime, a documentary that is an official selection in the 2011 Sundance Film Festival (among other international festivals), two land use lawyers including our ABA State & Local Government Law Section colleague Nadia Costa (Vice-Chair of the Section’s Land Use Committee), enter a different milieu:

CRIME AFTER CRIME is the exclusive documentary film on the legal battle to free Debbie Peagler, a woman imprisoned for over a quarter century due to her connection to…

Continue Reading Land Use Lawyers, Criminal Justice, And Sundance

Beginning at 9:00 a.m. Central Time today, the Texas Supreme Court heard oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription. In March, the court agreed to rehear the case.

Launch the archived video feed in a separate window by clicking this link, then follow the live blog archive below, where we added our thoughts and background. Our Damon Key colleague Rebecca Copeland provided Texas background (she practiced in the Texas appeals courts before joining our firm, so knows what “writ ref’d n.r.e.” means).

Background on the case, including the briefs the the court’s original opinion, are posted here.

Continue Reading Live Blog of Texas Supreme Court Argument In Severance (Beach “Rolling Easement” Case)

On Tuesday, April 19, 2011 starting at 9:00 a.m. Central Time, the Texas Supreme Court will hear oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription. Thus, the public does not gain an easement over private property upon sudden changes in the shoreline. In March, the court agreed to rehear the case. [Disclosure: my colleagues at Pacific Legal Foundation represent the property owner.]

St. Mary’s law school will be live streaming the arguments here.

Texas is one of those states (like Hawaii) that under common law now treats the vegetation line as the public-private boundary on beaches. (Technically, in Hawaii it isn’t the veg line, but rather the upper reaches of the high wash of the waves, as evidenced by the…

Continue Reading Argument Preview: Texas Supreme Court To Hear Arguments In Severance – Private Beaches, “Rolling” Easements

What we are reading today:

  • Should the Courts Help Los Angeles Commit Fiscal Suicide? – Gideon Kanner’s takedown of the recent California Court of Appeal decision in City of Los Angeles v. Superior Court, No. B225082 (Apr. 12, 2011), which held that in order to make out a claim for inequitable precondemnation activities, the city must actually have filed (or be contemplating filing) an eminent domain action. Because it hadn’t, the property owner could not get summary judgment on the Klopping claim. But as one colleague noted, if the city was not buying up these properties around LAX for a public purpose, just what was it doing? Also worth reading is Brad Kuhn‘s summary and analysis of the case here.

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Continue Reading Monday Round-Up

If you are a fan of Penn Central‘s “investment-backed expectations” factor, or the “notice” defense thought to be put to rest in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this is your week.

Earlier this week, we posted our amicus brief in Guggenheim v. City of Goleta, No. 10-1125, which argued the Ninth Circuit got it wrong when it held the fact that the property owners purchased their property subject to rent control was “fatal” to their takings claim. According to the Ninth Circuit’s en banc majority, the Guggenheims could not have investment-backed expectations because the rent control ordinance predated their purchase. Yesterday, we posted the city’s BIO, which asserted the Ninth Circuit didn’t “flout[the Supreme] Court’s decision in Palazzolo v. Rhode Island, 533 U.S. 606 (2001).”

Here’s the latest, the amicus brief of Equity Lifestyle Partners supporting the Petitioner. ELS owns hundreds …

Continue Reading Amicus Brief In Guggenheim: Ninth Circuit “Did Violence” To Penn Central Test

The city has filed its Brief in Opposition in Guggenheim v. City of Goleta, No. 10-1125.

That’s the case in which the owners of a mobile home park asserted the city’s mobile home rent control ordinance which the city adopted in 2002, is a taking under the three factor ad hoc test in Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978). The en banc Ninth Circuit held that the ordinance was not a taking, since the Guggenheims purchased their park years after the County of Santa Barbara adopted its rent control ordinance, and when the City of Goleta was incorporated in 2002, it adopted and continued the County’s ordinance. According to the Ninth Circuit, the fact that the Guggenheims purchased their land after it was rent controlled was “fatal” to their Penn Central claim, because they could not have “investment-backed expectations” at…

Continue Reading Brief In Opposition In Guggenheim: Ninth Circuit Applied All Penn Central Factors

In CRV Enterprises, Inc. v. United States, 626 F.3d 1241 (Fed. Cir. 2010), the U.S. Court of Appeals for the Federal Circuit (the court that hears appeals in regulatory taking and inverse condemnation cases against the federal government) held the EPA’s installation of a log boom on a navigable waterway in California’s central valley was not a taking even though it cut off the plaintiffs’ riparian access. We summarized the opinion here.

The property owners have filed a cert petition, asking the Court to review two Questions Presented:

1. In Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this Court repudiated the so-called Notice Rule, which held that post-enactment purchasers could not state a claim for a regulatory taking arising from restrictions adopted before they took title to the property. The Federal Circuit’s decision in this case — like the Ninth Circuit’s decision in Guggenheim v. …

Continue Reading Another Cert Petition Asks: Can A Post-Regulation Purchaser Bring A Takings Claim?