Landgate, Inc. v. California Coastal Commission

CHIN, J., Dissenting.

The takings clause of the federal Constitution guarantees property owners “just compensation” when their property is “taken for public use.” (U.S. Const., 5th Amend.) In First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 322 [ 107 S.Ct. 2378, 2389-2390 , 96 L.Ed.2d 250 ] (First English), the United States Supreme Court held that a property owner could recover compensation for a temporary taking.

First English involved a Los Angeles County ordinance that the plaintiff alleged prohibited all use of its property. (First English, supra, 482 U.S. at p. 308 [ 107 S.Ct. at p. 2382 ].) The plaintiff asserted that the ordinance constituted a taking of its property for public use, and it sought just compensation. (Ibid.) The trial court and California Court of Appeal ruled that plaintiff was not entitled to compensation unless the county opted to retain the ordinance following a judicial determination that the ordinance constituted a taking. (Id. at pp. 308-309 [107 S.Ct. at pp. 2382-2383].) In other words, these courts held that no taking could occur during the period of litigation over the validity of the ordinance. The United States Supreme Court disagreed, holding that, even if the county withdrew the ordinance as a result of the litigation, it still owed compensation for the temporary period the ordinance was in effect. (Id. at p. 322 [107 S.Ct. at pp. 2389-2390].)

Here, the California Coastal Commission (Commission) made clear that it opposed the lot line adjustment that created Landgate’s lot, and therefore *1033 opposed all development of Landgate’s property regardless of the magnitude of the development. The Commission’s decision denying Landgate’s application for a development permit had the same impact on Landgate as the ordinance in First English had on the plaintiff in that case. Landgate sued the Commission and successfully established that the Commission’s decision was wrong under state law and also that it constituted a taking. The Commission then approved development of Landgate’s property, thereby preventing Landgate from asserting a permanent taking. Under these circumstances, First English makes clear that the Commission must pay compensation for the temporary taking that occurred while its total ban on development of Landgate’s property was in effect.

The majority notes that the high court did not decide in First English whether “normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like” would amount to a temporary taking. (First English, supra, 482 U.S. at p. 321 [ 107 S.Ct. at p. 2389 ].) The majority argues that this case involves a “normal delay” in the permit approval process, not a temporary taking. (Maj. opn., ante, at pp. 1010, 1030.) I disagree. When a regulatory agency prohibits all use of a particular property, and the property owner is forced to sue the agency to get it to change its position, its stonewalling is not fairly characterized as a “normal delay” in the permit approval process. Here, the Commission’s denial of Landgate’s development permit was not, as the majority argues, “conditional,” merely calling for some reasonable act of compliance by Landgate. (Maj. opn., ante, at p. 1028.) Rather, the Commission made clear that it would not approve any development on Landgate’s lot regardless of the circumstances. Nor did the Commission in this case temporarily delay the permit approval process “pending resolution of a threshold issue.” (Maj. opn., ante, at pp. 1029, 1030.) Rather, the Commission flatly denied the permit, and its decision was final in every sense. The Commission was not planning to take any further action. Landgate had to sue the Commission to get relief.

In his dissent in First English, Justice Stevens articulated the precise argument on which the majority relies here. Specifically, Justice Stevens asserted, as does the majority here (maj. opn., ante, at p. 1030), that litigation over the validity of a land use restriction is simply a “normal delay[]” in the permit approval process and therefore cannot give rise to a temporary taking. (First English, supra, 482 U.S. at p. 334 [ 107 S.Ct. at p. 2396 ] (dis. opn. of Stevens, J.).) Justice Stevens stated: “The Court’s analysis .. . appears to erect an artificial distinction between ‘normal delays’ and the delays involved in obtaining a court declaration that the regulation constitutes a taking. HQ In my opinion, . . . [l\itigation challenging the validity of a land-use restriction gives rise to a delay that is just as ‘normal’ *1034 as an administrative procedure seeking a variance or an approval of a controversial plan.” (Id. at pp. 334-335 [ 107 S.Ct. at p. 2396 ] (dis. opn. of Stevens, J.), italics added, fns. omitted.) Thus, Justice Stevens would have held that litigation over the validity of a land use regulation, like other “normal delays” in the permit approval process, cannot give rise to a temporary taking even if the regulation deprives the property owner of all use of its property. The majority of the high court considered Justice Stevens’s argument and rejected it. Now, the same argument has found new life in the majority opinion here.

I agree with the majority “that a government agency may deny a development permit when the reasonable conditions imposed on development are not met . . . .” (Maj. opn., ante, at p. 1027.) I also agree that “a judicial determination of the validity of certain preconditions to development is a normal part of the development process, and . . . does not constitute a per se temporary taking.” (Maj. opn., ante, p. 1030, original italics.) Nevertheless, if the “preconditions to development” have the effect of prohibiting all use of the property regardless of the circumstances, then they constitute a taking. If those preconditions are permanent, then the taking is permanent; if those preconditions are temporary, then the taking is temporary. The majority cites numerous cases (maj. opn., ante, at pp. 1030-1031) in which litigation delay was “a normal part of the regulatory process.” (Maj. opn., ante, at p. 1031.) I find these cases irrelevant to the issue before us. First, these cases do not address whether the litigation delay constituted a temporary taking. Second, I do not argue that, in this case, the litigation delay by itself gave rise to the temporary taking; rather, I argue that the Commission’s total and final ban on all use of Landgate’s property (which existed during the litigation delay) gave rise to the temporary taking. As long as that total ban was in effect, the temporary taking continued.

In First English, the court held that “where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” (First English, supra, 482 U.S. at p. 321 [ 107 S.Ct. at p. 2389 ].) The majority would limit this holding to cases involving “the passage and enforcement of a law or regulation that deprives property of all value.” (Maj. opn., ante, at p. 1021, italics added.) I find no basis in First English for this limitation. Here, the policies reflected in the Commission’s adjudicative decision, like the ordinance at issue in First English, “worked a taking of all use of property,” and nothing “can relieve [the Commission] of the duty to provide compensation for the period during which the taking was effective.” (First English, supra, 482 U.S. at p. 321 [ 107 S.Ct. at p. 2389 ].)

*1035 Accordingly, I dissent.

Baxter, J., concurred.