Regulatory takings

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Confirming once again that the shopping mall defines California’s culture, the California Supreme Court in Fashion Valley Mall, LLC v. National Labor Relations Bd., No. S144753 (Dec. 24, 2007), held that the mall is a public forum for the airing of grievances, and that the mall’s owner did not have the right to prohibit protesters from urging on-site a boycott of a mall tenant. 

The First Amendment does not prohibit private censorship, but the court held that the California Constitution’s free speech clause provides greater protection than the First Amendment.  Thus, under California law, private shopping malls may not bar on-site protests, even when those protests are directed at a mall tenant.  The court reaffirmed the holding of Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979) which held that shopping malls are fora for public speech.  In other words, unlike the owners of other types of private…

Continue Reading Free Speech on Private Property: Cal Supreme Court Confirms California’s Mall-Centric Culture

In anticipation of the upcoming eminent domain conferences, ALI-ABA has posted a (free!) short podcast by Michael Berger about the recent $37 million inverse condemnation judgment against a northern California for causing the plaintiff’s land to become undevelopable wetlands (Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007)).  See you at the conference (Jan 3-5, 2008). Continue Reading Podcast on $37m Federal Inverse Condemnation Judgment

As reported here and here, the City of Half Moon Bay, California is going to appeal the $37 million federal inverse condemnation judgment to the Ninth Circuit.  In the first story, the San Francisco Chronicle reports:

The Half Moon Bay CityCouncil on Tuesday night voted to hire a team of appellate lawyers andannounced it would fight a potentially ruinous federal court decisionthat orders the city to pay $36.8 million to a developer in a propertydispute.

“The City Council has decided to go forward with an appeal,” MayorBonnie McClung told a crowd of more than 70 people gathered for thecouncil’s first regular meeting since the ruling came down. “We areunited in our position at this point that this is the best course ofaction for us.”

The council voted unanimously to hire Orrick, Herrington &Sutcliffe, a San Francisco law firm that specializes in public financeand corporate law. In the same

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Continue Reading City Will Appeal $37 Million Inverse Condemnation Judgment to Ninth Circuit

The $37 million inverse condemnation judgment against the City of Half Moon Bay, California by  the US District Court for the Northern District of California is having some repercussions, as reported by the San Francisco Chronicle:

Under the worst-casescenario, officials say, Half Moon Bay would become the first Bay Areacity forced to dissolve, and the coastal town’s land would become anunincorporated part of San Mateo County.

Members of the City Council say that’s unlikely, and they plan tovote at a public meeting tonight to retain an appellate law firm and afinancial consultant to advise them on how to tackle a court judgmentthat is more than three times Half Moon Bay’s $10 million annual budget.

. . .

Funding such a bond wouldmean “significant budget cuts across the board,” the City Council saidin a joint statement last week. “Everything will be affected – parks,streets, libraries, repairs – every municipal function will…

Continue Reading Government’s Response to $37M Inverse Condemnation Judgment

From January 3 – 5, 2008, ALI-ABA is putting on its annual program of eminent domain seminars, this time in San Francisco, California.  Two programs are being offered: “Condemnation 101: Fundamentals of Condemnation Law and Land Valuation” for those who want a course on the basics, and “Eminent Domain and Land Valuation Litigation,” for those who have some experience in this area of law.  The links above have agenda and faculty details, as well as registration information.  If you register by December 17, 2007 (midnight) using the code “DEC200730,” you will get 30% off of these or any other ALI-ABA course or materials.  Great deal.

These seminars are perhaps the best of their kind offered.  The faculty is great, and the agendas look like they will be their usual high quality.  I’m attending the advanced course.  If you register, be sure to let me know and Continue Reading Eminent Domain Seminars – January 2008

The Wall Street Journal posts “Whose Beach Is This Anyway,” a story about how shoreline erosion is resulting in legal disputes nationwide over ownership and building setbacks.

The story notes Hawaii’s Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), a case which I discussed here:

Property owners are battling in some states overso-called building setbacks, which dictate how far new structures mustbe built from the water. Hawaiian counties, for example, require thatnew construction be at least 20 feet and often up to 40 feet inland ofthe shoreline.

In recent years, some landowners planted salt-tolerantplants at their seaward property line, hoping the vegetation line wouldserve as the shoreline for setback purposes even if the tide sometimesextended past the plants. The state agreed in some cases, but concernedneighbors and environmental groups sued to have the issue clarified.Hawaii’s Supreme Court…

Continue Reading Wall St. Journal on Beach Erosion Issues (video)

There’s an interesting discussion going on over at The Volokh Conspiracy about the recent $37 million inverse condemnation/regulatory takings federal judgment against the City of Half Moon Bay, California.  I wrote about the decision here and here. 

The comments to Professor Somin’s post are particularly thought-provoking, especially the ones dealing with whether the decision is an “inverse condemnation” case or a “regulatory takings” case.  On one hand, government causing flooding on private property is a classic inverse condemnation situation; the intrusion of water onto private property is the equivalent of the government taking a flowage easement, so it is required to pay fair value for it.  That’s what happened in the Half Moon Bay case.  On the other hand, the “wipeout” of economically beneficial uses and a “physical invasion” are two per se categories of regulatory takings, both of which also occurred in the case. 

So the case is…

Continue Reading What’s the Difference Between “Inverse Condemnation” and a “Regulatory Taking?”

Two updates on Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007), the $37 million inverse condemnation judgment about which I posted here.  In that case, the US District Court for the Northern District of California held the city liable for ataking after it caused the plaintiff’s property to flood, whichrendered it an undevelopable “wetland.”  You flood it, you bought it.

First, Gideon Kanner posts his latest comments on the ripeness argument made by the city, and a recent write up of the case in the LA lawyer’s daily paper, the Los Angeles Daily Journal. 
Professor Kanner writes about the city’s post-trial argument that the case belonged in state court under the Williamson County ripeness doctrine (federal takings claims must be brought first in state courts).  As I mentioned, the case was originally brought by the plaintiff in state court, but was removed…

Continue Reading In Ripeness Doctrine, What’s Good For the Goose is Not Necessarily Good for the Gander

In Action Apartment Ass’n v. City of Santa Monica, No. 05-56533 (Dec. 3, 2007), the US Court of Appeals for the Ninth Circuit sustained Santa Monica, California’s 2002 amendments to its rent control ordinance against a takings and due process challenge:

In this appeal, we are presented with a claim that Santa Monica’s rent control ordinance is unconstitutional under both the “public use” component of the Fifth Amendment’s Takings Clause and the substantive component of the Fourteenth Amendment’s Due Process Clause. We conclude that the Fifth Amendment claims are not viable, that the facial Fourteenth Amendment claim is time-barred, and that the as applied Fourteenth Amendment claim is unripe. We therefore affirm the judgment of the district court, dismissing the complaint.

Slip op. at 15619.  The court held that the case were not distinguishable from the claims in Schnuck v. City of Santa Monica, 935 F.2d 171, 172…

Continue Reading Ninth Circuit: Rent Control Ordinance Not a Taking or Due Process Violation

Update: More on the case here and here.  Professor Gideon Kanner’s take on the case here.

Update 3/2008: The parties have settled.

Check out the Findings of Fact and Conclusions of Law  issued by the US District Court for the Northern District of California in Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007).  No need to digest all 167-pages: the bottom line is that the court awarded a judgment of $36.8 million because the city caused the plaintiff’s property to become wetlands, and rendered it undevelopable. 

The court held that the city was liable for inverse condemnation under both California and federal law, and that the compensation to be awarded to the landowner was difference in the value of the property before the taking, compared to after.  The court also held the city liable for common law nuisance and…

Continue Reading No. Cal. Federal Court Whacks City for $36.8m Inverse Condemnation Award