Posts Tagged ‘Taking’


On rehearing, the Second Appellate District determined a public access easement required in a coastal development permit was an unconstitutional exaction based on the facts in the case Bowman v. California Coastal Commission, Case No. B243015 (Oct. 23, 2014). An earlier blog post describing the court’s original published opinion and the underlying facts of the case can be found here.

In short, Walton Emmick purchased approximately 400 acres of land in San Luis Obispo County that contained a single, uninhabitable residence and a barn in a state of disrepair. In 2002, Emmick applied to the County for a coastal development permit (CDP) to connect an existing well to the house. Emmick also received over-the-counter permits authorizing dry-rot removal and repairs to the roof and deck. Significantly, the County Code exempts repair and maintenance activities “that do not result in any change to the approved land use of the site or building…” from CDP requirements. Emmick began work pursuant to the over-the-counter construction permits but did not begin any of the work under the CDP.

As explained in the prior opinion, the original CPD included a condition imposing a lateral easement for public access along the shorefront portion of the property. No appeal to this condition was filed. Later, however, the County rescinded the first CDP and issued a second CDP that removed the condition imposing the easement. Environmental groups and two coastal commissioners appealed the second CDP to the California Coastal Commission, and the Commission accepted jurisdiction. After hearing, the Commission determined that the easement condition contained in the original CDP was permanent and binding on the landowner, and removal of the easement condition would violate the policy favoring public access to coastal resources. The Commission conditioned its permits on the implementation of the easement contained in the County’s original CDP.

Emmick’s estate filed a petition for an administrative writ of mandate to eliminate the public access condition from the CDP. The estate argued that the access easement condition constitutes an unlawful exaction of its property under the Fifth Amendment.

In its original opinion, the Court of Appeal denied the petition. The court determined that the estate failed to exhaust its administrative remedies because it had not challenged the County’s original CDP imposing the easement condition. Ordinarily, explained the court, the failure to pursue administrative remedies in an administrative mandamus action will bar a party from pursuing a remedy in court under the doctrine of collateral estoppel. In reaching the conclusion that Emmick’s estate had failed to exhaust, the court determined that Emmick had relied on the original CDP to make improvements on the property.

On rehearing, the court emphasized that, in fact, Emmick only completed work pursuant to the over-the-counter permits. Since these improvements were exempt from CDP requirements, the court concluded that Emmick had not relied on the original CDP. In light of these facts, the court concluded the doctrine of collateral estoppel did not support the court barring Emmick’s arguments due to a failure to exhaust administrative remedies.

The court then considered whether the access easement condition violated the Nollan and Dolan regulatory takings test: an argument the court did not previously reach. In this case, the easement lacked the “essential nexus” required by those cases since Emmick never accepted any benefit of the original CDP. Therefore, forcing Emmick to accept the access easement condition would amount to an unconstitutional taking.

This case presents an unusual about-face from an appellate court following a rehearing on a published opinion. The result of the rehearing here emphasizes the importance of the factual record in a mandamus case.

 

Court of Appeal Holds Required Overflight Easement in Exchange for Building Permit is Not a Taking

In Powell v. County of Humboldt, the First District Court of Appeal held that the required dedication of an airspace easement in exchange for a building permit was not an unconstitutional government taking under either state or federal law.

The Powells purchased a property containing a mobile home with an illegal attached covered porch and carport. When the Powells applied for an after-the-fact building permit, the County informed them that they would need to grant an airspace easement over their home in order to obtain the permit. The Humboldt County General Plan requires, as a condition for obtaining a building permit, that private property owners provide an aircraft overflight easement allowing planes from the nearby airport to fly overhead. The Powells sued, claiming the requirement was a government taking for which compensation was due.

The Fifth Amendment to the United States Constitution states that private property shall not be taken for public use without just compensation. Several Supreme Court cases have attempted to define what it means to “take” property. One way the government can effectuate a taking is through physical invasion of one’s property. (Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419.) Another way to take property is by depriving an owner of all economically beneficial use of that property. (Lucas v. S.C. Coastal Council (1992) 505 U.S. 1003.) The government can also effect a taking with regulation that interferes with investment-backed expectations of the property owner. (Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104.) Here, the Court of Appeal found there was no physical invasion, deprivation of all beneficial use of the property, or interference with the Powells’ investment-backed expectations.

The court also assessed the Powells’ claim within the framework of the Nollan/Dolan cases. (Nollan v. California Coastal Commission (1987) 483 U.S. 825; Dolan v. City of Tigard (1994) 512 U.S. 374.) Nollan and Dolan both involved regulatory takings resulting from government demands that a landowner dedicate an easement allowing public access to the owner’s property as a condition of obtaining a development permit. The court noted that in both of those cases the dedications were so onerous that the exactions were essentially deemed per se physical takings. Here, however, even under California’s more expansive takings clause (whereby property damage may be considered a taking), the easement did not rise to the level of a per se physical taking. There was no evidence that the overflight easement would invade the Powells’ private airspace, substantially interfere with the use and enjoyment of their property, or cause a measureable reduction in the property’s value.

The court noted that this easement could, under the right circumstances, be considered a taking. The Powells, however, failed to present sufficient evidence that at the time of their suit, the practical effect of the easement was to bring about such a taking. The court found nothing to preclude the Powells from seeking just compensation if airport operations substantially increased in the future.