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TAKINGS

Shute, Mihaly & Weinberger LLP defends public entities in takings challenges and other related challenges, including equal protection and due process challenges under 42 U.S.C. section 1983. The firm also advises public entities on how to avoid takings litigation and assists public entities with nexus studies to support proposed regulations and exactions.

• The firm won a major victory in the U.S. Supreme Court for the Tahoe Regional Planning Agency (TRPA) in the recently decided Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S.Ct. 1465 (2003). The case involved regulatory takings claims brought by over 400 hundred property owners. The Supreme Court’s landmark decision held that temporary planning moratoria do not constitute a per se taking of property, and contains some of the Court’s strongest statements to date recognizing the importance of careful land use planning and regulation. The firm served as lead trial counsel in the ten-day court trial before the District Court and was counsel of record in the subsequent Ninth Circuit and Supreme Court proceedings.

• Shute, Mihaly & Weinberger represents San Francisco in San Remo Hotel v. City and County of San Francisco, which was heard in the United States Supreme Court on March 28, 2005.  The case involves a regulatory takings challenge to San Francisco's residential hotel conversion ordinance.  The ordinance, enacted in 1981, restricts the conversion of residential hotels to tourist use in order to preserve affordable housing.  The Supreme Court will determine whether takings plaintiffs have a right to a federal court hearing of their claims under the federal just compensation clause following an unsuccessful attempt to obtain compensation in state court under the just compensation clause of the state constitution, where the two suits are based on identical issues of fact and law.  Giving plaintiffs "two bites at the apple," San Francisco argued, would require the public to defend its laws twice--and win twice--but the property owner would only have to win once.  The Court is expected to issue its decision in the case (U.S. Supreme Court No. 04-340) in June 2005.

• The firm successfully defended the Tahoe Regional Planning Agency's (TRPA) new scenic regulations, which were enacted to address the scenic degradation at Lake Tahoe resulting from residential remodels and new construction in the shore area.  New construction and the increasing use of massive windows and other reflective building materials, along with decreased setbacks from the Lake, and increased vegetation removal all contribute to the degradation of the Lake’s world renowned scenic quality. In response to this threat, TRPA adopted new safeguards to protect scenic values while also allowing design flexibility.  An association of property owners sued TRPA over the new standards, bringing a laundry list of allegations, including challenges to TRPA’s authority to regulate, its procedures and evidence in support of the regulations, and a takings claim.  The firm and TRPA’s Agency Counsel succeeded in having all of the claims dismissed by the District Court.

• The firm recently successfully defended TRPA in another challenge to the Agency’s 1987 Regional Plan. This action, brought by Tahoe-Sierra Preservation Council and over 250 individual members of TSPC, alleged that TRPA’s implementation of the 1987 Plan effected an unconstitutional taking of their property and violated the Equal Protection Clause of the U.S. Constitution. The trial court dismissed plaintiff’s claims, and in a published opinion (Tahoe-Sierra Pres. Council, Inc.v. Tahoe Reg'l Planning Agency, 322 F.3d 1064 (9th Cir. 2003)) the Ninth Circuit held that, because TSPC already had an opportunity to challenge the 1987 Plan in an earlier lawsuit, all of plaintiffs’ claims were barred by the doctrine of res judicata.

• Shute, Mihaly & Weinberger LLP represented the City of Lafayette in the City’s appeal of a trial court ruling awarding substantial takings damages. The case arose out of the City’s denial of a lot line adjustment application, based on a finding that it would have violated the conditions of an existing subdivision. The California Court of Appeal unanimously reversed the trial court’s ruling for the landowners on their takings claim, finding that the record “sets forth legitimate reasons” for the City’s actions and that the City denied the lot line adjustment application in order to “advance governmental interests.” The Court further noted that “Hillside properties require particular oversight” and that “the monitoring of density and hillside slope requirements are legitimate governmental interests.” The published opinion appears at Loewenstein v. City of Lafayette, 127 Cal. Rptr. 2d 79 (2002).

• The firm represented the City of Saratoga in an inverse condemnation and writ action brought by the Saratoga Fire Protection District after the City denied the District’s application for construction of a fire station that was inconsistent with the City’s zoning regulations. The City demurred to the inverse condemnation claim on the grounds that the claim was not ripe for decision given that the District had made only one, relatively intense development proposal on the property, and because the courts have not extended the regulatory takings doctrine to require compensation for public, as opposed to private, property. After the court sustained the City’s demurrer, the parties settled the litigation with a new design for the proposed project.

• The firm represented the El Dorado County Local Agency Formation Commission (LAFCO) in an action alleging takings, due process and contracts clause violations, and seeking a writ of mandate, because the LAFCO denied plaintiffs' application for annexation to an irrigation district. The LAFCO demurred to the constitutional claims because the landowners had no property right that was infringed, the claims were not ripe for decision, and on other grounds. The court sustained the LAFCO’s demurrer. The trial court also found that LAFCO had a legitimate basis for denying plaintiffs’ annexation application and therefore denied the petition for writ of mandate.

• The firm represented the Monterey Peninsula Water Management District in a challenge to the District’s denial of a water distribution system permit for a large resort to be built on Monterey Bay. Plaintiff argued that the District’s action to deny the distribution permit was an unlawful allocation of plaintiff’s water to other water users with lower priority rights, alleging causes of action for inverse condemnation, denial of due process and writ of mandate. The District successfully demurred to the constitutional claims and, later, prevailed on the writ action.

The firm's long history of successfully defending government agencies against takings claims also includes:

• Successfully defending the Town of Tiburon before the United States Supreme Court in an action challenging the Town's open space ordinance as constituting inverse condemnation. (Agins v. Tiburon, 447 U.S. 255 (1980).)
  

• Successfully defending the Town of Ross in a takings, due process and equal protection challenge to the Town's denial of a five-lot subdivision application. (Toigo v. Town of Ross, 70 Cal.App.4th 309 (1998).)
  

• Successfully defending the City of Sacramento and the Sacramento Housing and Redevelopment Authority in litigation challenging the City's low-income housing fee on commercial development. (Commercial Builders v. City of Sacramento, 941 F.2d 872 (9th Cir. 1991), cert. denied, 504 U.S. 931 (1992).)
  

• Successfully defending the County of Santa Cruz against an inverse condemnation action challenging the County's mobile home rent control laws. (De Anza v. County of Santa Cruz, 936 F.2d 1084 (9th Cir. 1991).)
  

• Successfully defending the Tahoe Regional Planning Agency in federal court against a takings claim and other constitutional challenges to TRPA's regulation prohibiting the use of certain polluting watercraft engines. (Lake Tahoe Watercraft Recreation Ass'n v. TRPA, 24 F. Supp. 2d 1062 (E.D. Cal. 1998).) The firm negotiated a favorable settlement after winning dismissal of all constitutional claims.
  

• Successfully defending Butte County in an action filed by a developer of a large residential subdivision against the County and the City of Chico claiming their alleged delay in approving sewage treatment facilities for the project resulted in the developer's bankruptcy and loss of the property. (St. Clair v. City of Chico, 880 F.2d 199 (9th Cir.), cert. denied, 493 U.S. 993 (1989).)
  

• Successfully defending the County of Marin against takings and substantive due process challenges to the transfer of development of rights program within its zoning regulations for ranching and agricultural areas. (Barancik v. County of Marin, 872 F.2d 834 (9th Cir. 1988), cert. denied, 493 U.S. 894 (1989).)
  

• Successfully defending the City of Eureka in several federal court actions brought by a local property owner claiming that the City's denial of land use permits constituted a taking and violated his due process and equal protection rights.
  

• Successfully defending the City of Berkeley in a federal court inverse condemnation action filed by Santa Fe Pacific over the City's limitations on development of the Berkeley Waterfront.
  

• Assisting the City of Pacifica in its successful defense of concurrent state and federal court inverse condemnation actions challenging the City's requirement that a project proponent complete further environmental review before allowing development of Mori Point, a locally significant natural area in the City.
  

• Winning dismissal on appeal of takings and related constitutional claims against the City of Oceanside arising from the City's adoption of an equestrian zoning ordinance, which established minimum parcel sizes for certain subdivisions. The state Court of Appeal reversed a Superior Court judgment for damages and attorneys' fees against the City in excess of $3.3 million that had been obtained prior to the firm's representation.
  

• Successfully defending the City of Orinda in both state and federal litigation alleging takings, equal protection, and due process violations arising out of a referendum denying approval of the proposed Gateway Valley residential/golf course development. The firm assisted the City in negotiating a settlement agreement with the developer which avoided further litigation.
  

• Successfully defending the East Bay Regional Park District in takings actions filed by applicants for a proposed residential subdivision in both state and federal courts.
  

• Successfully defending the East Bay Regional Park District in takings actions filed in both state and federal courts by a developer, and obtaining a sanctions award in the amount of $25,000 against plaintiffs for bringing a frivolous action.
  

• Successfully defending Santa Cruz County in a state court inverse condemnation action filed by a landowner prevented from developing property that failed to meet the County's minimum lot size requirement for septic systems.

• Successfully representing Monterey County in a federal takings action filed by the owners of a commercial goat dairy operation found to be a nuisance. After the firm filed a motion to dismiss the takings claim on ripeness, statute of limitations and other grounds, the plaintiffs voluntarily dismissed their case.

In addition, the firm has appeared numerous times as counsel for amici curiae (friends of the court) on behalf of local governments and agencies in significant cases in the United States and California Supreme Courts, as well as in appellate courts:

• Appeared on behalf of numerous California cities and counties as amici curiae in support of the defendant City in Milagra Ridge Partners, Ltd. v. City of Pacifica, 62 Cal.App.4th 108 (1998), in which the Court of Appeal held that a property owner's application to amend the City's General Plan was not sufficient to demonstrate that its takings claim was ripe.
  

• Appeared on behalf of numerous California cities and counties as amici curiae in support of the defendant City in Hensler v. City of Glendale, 8 Cal.4th 1 (1994), in which the California Supreme Court held that a property owner challenging a decision made under the Subdivision Map Act must exhaust administrative and judicial remedies before bringing a takings claim, and comply with the Subdivision Map Act's 90-day statute of limitations.
  

• Appeared before the U.S. Supreme Court on behalf of national and statewide mobile-home owner interest groups as amici curiae in support of the City of Escondido in Yee v. City of Escondido, 503 U.S. 519 (1992). Ruling for the City and amici, the Court held that the challenged vacancy control provisions did not effect a physical taking requiring compensation by the City. The Court's decision overturned the Ninth Circuit's earlier decision in Hall v. City of Santa Barbara, 833 F.2d 1270 (9th Cir. 1986).
  

• Appeared on behalf of numerous California cities and counties as amici curiae in support of the California Coastal Commission in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), a landmark U.S. Supreme Court case concerning the constitutional limits of requiring land use dedications.

Members of the firm have lectured extensively on takings and exactions before professional, governmental, and academic audiences, and have written numerous articles and treatise chapters summarizing takings and exactions law. (See, e.g., Ellison Folk et al., Takings and Other Constitutional Controls, in California Environmental Law and Land Use Practice ' ch 65 (Kenneth A. Manaster & Daniel P. Selmi eds., 2000); Fran M. Layton & Susannah T. French, Dolan v. City of Tigard: The Supreme Court's Rough Proportionality Standard Is Still Rough Around the Edges, 1994 Cal. Env. L. Rptr. 243).).

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