Petition for Writ of Certiorari — David Kagan, et al., Petitioners v. City of Los Angeles, California, et al.

No. _____________

In The

Supreme Court of the United States

____________________

DAVID KAGAN; JUDITH KAGAN;

FRANK REVERE; and RACHEL K. REVERE,

Petitioners,

v.

CITY OF LOS ANGELES; and

CITY OF LOS ANGELES HOUSING AND

COMMUNITY INVESTMENT DEPARTMENT,

____________________

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

FRANK REVERE

Revere & Wallace

355 S. Grand Ave.

Suite 2450

Los Angeles, CA 90071

Telephone: (213) 943-1333

frank@reverelawfirm.com

J. DAVID BREEMER*

*Counsel of Record

DEBORAH J. LA FETRA

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

DLaFetra@pacificlegal.org

Counsel for Petitioners

i

QUESTION PRESENTED

Frank and Rachel Revere and David and Judith

Kagan (Owners) own a duplex in Los Angeles,

California, as tenants in common. The Reveres live in

one unit. In 2019, the Reveres applied to the City to

displace a month-to-month tenant in the other unit, so

they could move in their own family members. The

City denied the request, concluding the tenant was

protected from eviction for a family move-in under Los

Angeles’ Rent Stabilization Ordinance. The Owners

sued, alleging the City’s decision forced them to suffer

a physical taking of their property.

The question presented is:

Whether a law that bars termination of a tenancy,

and compels the occupation of property by an

unwanted tenant, amounts to a per se, physical

taking, as the Eighth Circuit held in Heights

Apartments, LLC v. Walz, 30 F.4th 720 (8th Cir. 2022),

or is instead a permissible regulation of property

under Yee v. City of Escondido, 503 U.S. 519 (1992), as

the Ninth Circuit held below.

ii

PARTIES TO THE PROCEEDING

Petitioners David Kagan, Judith Kagan, Frank

Revere, and Rachel K. Revere were the plaintiffsappellants below.

Respondents City of Los Angeles and City of Los

Angeles Housing and Community Investment

Department were defendants-appellees below.

STATEMENT OF RELATED PROCEEDINGS

Kagan v. City of Los Angeles, No. 21-55233, 2022

WL 16849064 (9th Cir. Nov. 10, 2022) (opinion

issued).

Kagan v. City of Los Angeles, No. 2:20-cv-05515DMG-ADS, 2021 WL 958571 (C.D. Cal.) (judgment

entered February 11, 2021).

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS

AND STATUTES AT ISSUE ................................... 1

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE WRIT .............. 2

STATEMENT OF THE CASE .................................... 5

A. The National Context ..................................... 5

B. The Owners Acquire Their Property.............. 7

C. Los Angeles Refuses the Owners’

Request to Evict for Family Occupancy ......... 8

D. Proceedings Below .......................................... 9

REASONS FOR GRANTING THE WRIT ............... 12

I.

The Ninth Circuit’s Decision Conflicts

With This Court’s Physical Takings

Precedent ........................................................ 12

A. This Court’s Precedent Indicates That

Any Physical Occupation of Property

Is a Per Se Taking ........................................ 12

B. The Decision Below Conflicts With

the Court’s Per Se Physical Takings

Precedent ...................................................... 15

iv

1. The Ninth Circuit’s decision conflicts

with Loretto and Cedar Point.................. 15

2. The Ninth Circuit’s interpretation

of Yee is inconsistent with this

Court’s understanding of the case .......... 19

II.

The Decision Below Conflicts With Lower

Court Decisions, Including a Recent

Decision of the Eighth Circuit ....................... 23

A. The Ninth Circuit Decision Conflicts

With the Decision of the Eighth

Circuit in Heights ......................................... 23

B. The Decision Below Exacerbates a

Conflict Among the Lower Courts................ 25

1. Some courts have held that a

government-authorized

occupation of property by a

tenant is a physical taking ...................... 26

2. Other courts hold that an eviction

ban resulting in a compelled

tenancy is not a taking ............................ 31

CONCLUSION.......................................................... 34

APPENDIX

Memorandum Opinion (9th Cir. Nov. 10, 2022) ...... 1a

Order Re Defendants’ Motion to Dismiss

(C.D. Cal. Feb. 11, 2021) ........................................ 7a

Los Angeles Municipal Code § 151.30

Evictions for Owner, Family, or

Resident Manager Occupancy ............................. 17a

v

Complaint for Violations of the Civil Rights Act,

42 U.S.C. § 1983 (De Facto Physical Takings

Without Compensation and Denial of Due

Process) and Claim for Attorney’s Fees

Under 42 U.S.C. § 1988(b) [without exhibits] .... 24a

vi

TABLE OF AUTHORITIES

Cases

Alabama Ass’n of Realtors v. Dep’t of

Health & Human Servs.,

141 S.Ct. 2485 (2021) .......................................... 16

Aspen-Tarpon Springs Ltd. P’ship v. Stuart,

635 So.2d 61 (Fla. Dist. Ct. App. 1994) .............. 27

Bakanauskas v. Urdan,

206 Cal.App.3d 621 (1988) ............................ 27–28

Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021) ...........3–4, 13–14, 16, 18, 34

Cwynar v. City & Cnty. of San Francisco,

90 Cal.App.4th 637 (2001) ............... 6–7, 18, 28–31

Elmsford Apt. Assocs., LLC v. Cuomo,

469 F.Supp.3d 148 (S.D.N.Y. 2020) .............. 22, 33

F.C.C. v. Fla. Power Corp.,

480 U.S. 245 (1987) ....................................... 22–23

Fresh Pond Shopping Center, Inc. v. Callahan,

464 U.S. 875 (1983) ............................................... 4

Gallo v. District of Columbia,

No. 1:21-cv-03298, 2022 WL 2208934

(D.D.C. June 21, 2022) .............................. 2, 32–33

Gonzales v. Inslee,

21 Wash.App.2d 110 (2022) .......................... 31–32

Harmon v. Markus,

412 F.App’x 420 (2d Cir. 2011)...................... 10, 32

Heights Apts., LLC v. Walz,

30 F.4th 720 (8th Cir. 2022) ............ 2, 4, 15, 23–24

vii

Heights Apts., LLC v. Walz,

39 F.4th 479 (8th Cir. 2022) .......................... 25, 33

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ................................. 13–14, 17

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ....................................... 14–15

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) .......................................... 26

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) ....................................... 11–12

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ..................3, 12–14, 16–17, 19

Moore v. City of East Cleveland, Ohio,

431 U.S. 494 (1977) ............................................... 2

Murr v. Wisconsin,

137 S.Ct. 1933 (2017) .......................................... 34

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ....................................... 13, 22

Pinewood Estates of Michigan v.

Barnegat Tp. Leveling Bd.,

898 F.2d 347 (3d Cir. 1990) ................................. 23

Polednak v. Rent Control Board of Cambridge,

397 Mass. 854 (1986) ........................................... 27

Rivera v. R. Cobian Chinea & Co.,

181 F.2d 974 (1st Cir. 1950) ................................ 26

Sabato v. Sabato,

135 N.J. Super. 158 (1975) .................................... 2

Seawall Assocs. v. City of New York,

74 N.Y.2d 92, cert. denied,

493 U.S. 976 (1989) ....................................... 26–27

viii

State Agency of Development and

Community Affairs v. Bisson,

161 Vt. 8 (1993).................................................... 32

Troy Ltd. v. Renna,

727 F.2d 287 (3d Cir. 1984) ................................. 10

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945) ............................................. 14

Williams v. Alameda Cnty.,

Nos. 3:22-cv-01274-LB, 3:22-cv-02705-LB,

2022 WL 17169833

(N.D. Cal. Nov. 22, 2022)....................... 2–3, 32–33

Williamson County Regional Planning

Commission v. Hamilton Bank,

473 U.S. 172 (1985) ............................................. 26

Yee v. City of Escondido,

503 U.S. 519 (1992)

........................... 3, 10–12, 16, 19–22, 24–25, 29, 32

United States Constitution

U.S. Const. amend. V .................................................. 1

U.S. Const. amend. XIV, § 1 ....................................... 1

Statutes

28 U.S.C. § 1257(a) ..................................................... 1

L.A. Mun. Code § 151.25............................................. 9

L.A. Mun. Code § 151.26(A)........................................ 9

ix

Other Authorities

Autor, David H., et al., Housing Market

Spillovers: Evidence from the End of Rent

Control in Cambridge, Massachusetts,

122 J. of Pol. Econ. 661 (June 2014),

https://www.nber.org/system/files/working_p

apers/w18125/w18125.pdf ..................................... 6

Brief for Respondent, Yee v. City of Escondido,

503 U.S. 519 (1992) (No. 90-1947),

1992 WL 545135 .................................................. 22

Broady, Kristen, et al., An eviction moratorium

without rental assistance hurts smaller

landlords, too, Brookings Inst. (Sept. 21,

2020), https://www.brookings.edu/blog/upfront/2020/09/21/an-eviction-moratoriumwithout-rental-assistance-hurts-smallerlandlords-too/ ..................................................... 5–6

Fry, Richard, Young adults in U.S. are

much more likely than 50 years ago to be

living in a multigenerational household,

Pew Research Center (July 20, 2022),

https://www.pewresearch.org/facttank/2022/07/20/young-adults-in-u-s-aremuch-more-likely-than-50-years-ago-tobe-living-in-a-multigenerationalhousehold/#:~:text=The%20share%20of%

20young%20adults,in%20the%20home%

20in%202021...................................................... 6–7

Houghton, Jon, The Misaspplication of Yee v.

Escondido in Eviction Moratorium Cases,

39 No. 1 Prac. Real Est. Law. 17 (2023) ............. 21

x

Housing Finance Policy Center, Small

Multifamily Units, Urban Inst. (May 2020),

https://www.urban.org/sites/default/files/2020/

05/15/small_multifamily_units_0.pdf ................... 5

Jones, William K., Confiscation: A Rationale of the

Law of Takings, 24 Hofstra L. Rev. 1 (1995) ...... 18

Larkin, Paul J., The Sturm und Drang of

the CDC’s Home Eviction Moratorium,

2021 Harv. J.L. &

Pub. Pol’y Per Curiam 18 .............................. 15–16

Manheim, Karl, Tenant Eviction

Protection and the Takings Clause,

1989 Wis. L. Rev. 925 ............................................ 6

Merrill, Thomas W.,

Property and the Right to Exclude,

77 Neb. L. Rev. 730 (1998) .................................. 14

Naughton, Elizabeth, San Francisco’s Owner MoveIn Legislation: Rent Control or Out of Control?,

34 U.S.F. L. Rev. 537 (2000) ............................... 15

Reid, Carolina & Heisler, Meg, The Ongoing

Housing Crisis: California Renters Still

Struggle to Pay Rent Even as Counties ReOpen, Terner Ctr. for Housing Innovation,

U.C. Berkeley (Oct. 2, 2020),

https://ternercenter.berkeley.edu/researchand-policy/ongoing-housing-crisis/ ........................ 5

Schuetz, Jenny, Halting evictions during the

coronavirus crisis isn’t as good as it sounds,

Brookings Inst. (Mar. 25, 2020),

https://www.brookings.edu/blog/theavenue/2

020/03/25/halting-evictions-during-thecoronavirus-crisis-isnt-as-good-as-it-sounds/ ....... 6

xi

Vesoulis, Abby, How Eviction

Moratoriums Are Hurting Small

Landlords—and Why That’s Bad for

the Future of Affordable Housing,

Time Magazine (June 11, 2020),

https://time.com/5846383/coronaviru

s-small-landlords/ .................................................. 5

1

PETITION FOR WRIT OF CERTIORARI

Frank and Rachel Revere and David and Judith

Kagan respectfully request that this Court issue a

writ of certiorari to review the judgment of the Ninth

Circuit Court of Appeals.

OPINIONS BELOW

The opinion of the Ninth Circuit is unpublished,

but can be found at Kagan v. City of Los Angeles, 2022

WL 16849064 (9th Cir. Nov. 10, 2022), and in

Petitioners’ Appendix at App.1a. The district court’s

order is unpublished, but can be found at Kagan v.

City of Los Angeles, 2021 WL 958571 (C.D. Cal.

Feb. 11, 2021), and at App.7a.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a). The Ninth Circuit Court of Appeals

dismissed this federal constitutional case in an

opinion issued on November 10, 2022.

CONSTITUTIONAL PROVISIONS

AND STATUTES AT ISSUE

The Takings Clause of the United States

Constitution provides that “private property [shall

not] be taken for public use, without just

compensation.” U.S. Const. amend. V.

The Fourteenth Amendment to the United States

Constitution provides, in relevant part, that no state

shall “deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV,

§ 1.

Los Angeles Municipal Code (LAMC) § 151.30 is

set forth at App.17a.

2

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE WRIT

The right to move one’s own family into a private

home is a traditional incident of property ownership.

See Moore v. City of East Cleveland, Ohio, 431 U.S.

494, 520–21 (1977) (Stevens, J., concurring)

(concluding that because a zoning ordinance “cuts so

deeply into a fundamental right normally associated

with the ownership of residential property that of an

owner to decide who may reside on his or her property

. . . [it] constitutes a taking of property without due

process and without just compensation”); Sabato v.

Sabato, 135 N.J. Super. 158 (1975) (owner of threeunit building had a constitutional right to evict for

owner occupancy).

This right has grown in importance as affordable

housing options for younger generations have

declined. At the same time, municipalities throughout

the nation have responded to perceived hardships on

tenants by passing laws that limit the ability of rental

property owners to evict tenants so the owners can

personally use their property. Whether such laws are

intended to mitigate COVID-19 hardships or perceived

shortfalls in available rental housing, the effect on

property owners is the same: they must submit to the

unwanted, physical occupation of their property and

are unable to use the property for their own purposes.

In response, property owners like those in this case

have filed lawsuits asserting that eviction bans should

be recognized as a per se taking of property. See

Heights Apts., LLC v. Walz, 30 F.4th 720 (8th Cir.

2022); Gallo v. District of Columbia, No. 1:21-cv03298, 2022 WL 2208934 (D.D.C. June 21, 2022), and

Williams v. Alameda Cnty., Nos. 3:22-cv-01274-LB,

3

3:22-cv-02705-LB, 2022 WL 17169833 (N.D. Cal.

Nov. 22, 2022).

This Petition arises from a decision of the Ninth

Circuit which held that an eviction prohibition that

results in a compelled, indefinite tenant occupation is

not a physical taking. In this case, Los Angeles denied

the attempt of rental owners to displace an existing,

“protected” tenant so that they could move family

members into that unit. App.8a. Relying primarily on

this Court’s decision in Yee v. City of Escondido, 503

U.S. 519 (1992), the Ninth Circuit held that the City’s

decision to require a continued tenant occupation was

not a taking. App.3a. The court arrived at this

conclusion in part because it believed the Owners

could (potentially) entirely remove their property from

the rental market, and displace the tenant by that

means, provided that they give the tenant a year to

vacate and agree not to rent their property for two

years. App.3a.

This decision is irreconcilable with physical

takings precedent from this Court, such as Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982), and Cedar Point Nursery v. Hassid, 141 S.Ct.

2063 (2021). Loretto and Cedar Point hold that

government-authorized

physical

invasions

of

property, whether by things or people, qualify as a per

se, physical taking of property. Cedar Point, 141 S.Ct

at 2072. Moreover, a physical occupation is a taking

whether it is for one year or a hundred. Thus, that a

property owner may be able to remove their property

from the rental market, after an unwanted tenant is

permitted to remain for a year, does not cure the

taking. A year-long, unwanted occupation is still a

violation of the owner’s right to exclude strangers

4

from the property, and a taking. Id. at 2074 (“[A]

physical appropriation is a taking whether it is

permanent or temporary. The duration of the

appropriation . . . bears only on the amount of

compensation.” (internal citations omitted)). Finally,

contrary to the decision below, Yee does not dilute

physical takings standards in the context of

government-compelled tenancies or foreclose a claim

that such tenancies are a taking.

The Ninth Circuit’s conclusion also conflicts with

many lower court decisions that have concluded that

an eviction prohibition results in a per se taking. Most

notably, the decision below conflicts with the Eighth

Circuit’s decision in Heights. While the Ninth Circuit

concluded in this case that the government may force

property owners to acquiesce to a continued,

unwanted tenancy, the Heights decision holds to the

contrary, that such a burden on the right to exclude

others from property amounts to a physical taking

under Loretto and Cedar Point. See Heights, 30 F.4th

at 733.

The Court should grant the Petition (1) to hold

that per se, physical takings precedents like Loretto

and Cedar Point, rather than Yee, govern the issue of

whether an eviction prohibition and resulting

compelled tenancy is a taking, and (2) to resolve the

conflict between the courts on the issue. See Fresh

Pond Shopping Center, Inc. v. Callahan, 464 U.S. 875,

878 (1983) (Rehnquist, J., dissenting from dismissal of

a case as improvidently granted) (arguing that the

Court should have considered a case challenging

eviction restrictions that amounted to a per se taking).

5

STATEMENT OF THE CASE

A. The National Context

This case involves a conflict over occupation of a

two-unit duplex that has been partially used in the

past as a rental unit, but which the Owners now hope

to fully use as a family residence. Disputes between

the government and property owners over the owners’

right to convert small, formerly rented buildings to

personal use are increasingly common. According to

Census Bureau data, more than 22 million rental

units—approximately half of the country’s rental

units—are found in small buildings with between one

and four units. See Housing Finance Policy Center,

Small Multifamily Units, Urban Inst. (May 2020),

p. 4.1 Individual investors, or “mom and pop”

landlords, own over 40% of residential rental units,2

which is approximately 22.7 million rental units. Abby

Vesoulis, How Eviction Moratoriums Are Hurting

Small Landlords—and Why That’s Bad for the Future

of Affordable Housing, Time Magazine (June 11,

2020).3

1https://www.urban.org/sites/default/files/2020/05/15/small_mul

tifamily_units_0.pdf. The real estate market in California trends

even more towards lower density small buildings than the nation

as a whole due to the nature of the region’s housing stock. See

also Carolina Reid & Meg Heisler, The Ongoing Housing Crisis:

California Renters Still Struggle to Pay Rent Even as Counties

Re-Open, Terner Ctr. for Housing Innovation, U.C. Berkeley

(Oct. 2, 2020), https://ternercenter.berkeley.edu/research-andpolicy/ongoing-housing-crisis/.

2 Kristen Broady, et al., An eviction moratorium without rental

assistance hurts smaller landlords, too, Brookings Inst.

(Sept. 21, 2020), https://www.brookings.edu/blog/up-

6

As new, affordable housing options have

decreased, and regulatory burdens on older rental

properties have increased,4 many of the owners of

small rental units have sought to convert them into

standard, fee simple residential properties. They often

do so with the intent to convert the formerly rented

units into housing for younger family members who

cannot afford housing elsewhere or who simply seek

closer family living arrangements. Karl Manheim,

Tenant Eviction Protection and the Takings Clause,

1989 Wis. L. Rev. 925, 1000; see also Cwynar v. City &

Cnty. of San Francisco, 90 Cal.App.4th 637, 647–49

(2001);5 Richard Fry, Young adults in U.S. are much

front/2020/09/21/an-eviction-moratorium-without-rentalassistance-hurts-smaller-landlords-too/.

3 https://time.com/5846383/coronavirus-small-landlords/.

4 Studies show that small, residential building owners spend at

least half of their rental income on mortgage payments, property

taxes, and insurance. Jenny Schuetz, Halting evictions during

the coronavirus crisis isn’t as good as it sounds, Brookings Inst.

(Mar. 25, 2020), https://www.brookings.edu/blog/theavenue/202

0/03/25/halting-evictions-during-the-coronavirus-crisis-isnt-asgood-as-it-sounds/. Studies also show that rent control devalues

these landlords’ property by as much as 25% relative to

uncontrolled units. See, e.g., David H. Autor, et al., Housing

Market Spillovers: Evidence from the End of Rent Control in

Cambridge, Massachusetts, 122 J. of Pol. Econ. 661 (June 2014),

https://www.nber.org/system/files/working_papers/w18125/w181

25.pdf.

5 In Cwynar, the court described the plaintiff property owners

who sought to move family members into formerly rented

property:

Ed Corvi (Corvi), a San Francisco resident, owns a sixunit building in San Francisco. One of the units is

occupied by two of Corvi’s sons. One of these sons is

engaged to be married and wishes to live in another unit

7

more likely than 50 years ago to be living in a

multigenerational household, Pew Research Center

(July 20, 2022) (“The share of young adults who live in

a parent’s home rose from 8% in 1971 to 17% in

2021[.]”).6

B. The Owners Acquire Their Property

In 2015, Frank and Rachel Revere and David and

Judith Kagan purchased a duplex in Los Angeles,

California. App.24a–25a, 28a. The duplex is

comprised of an upper and lower unit. The upstairs

unit is a 2,400 square foot, three bedroom, two

bathroom unit. App.28a. The Reveres reside in the

downstairs unit. When the Owners acquired the

duplex, the upstairs unit was occupied since 2008 by

a tenant, a single man. App.25a.

In 2019, four years after purchasing the unit, the

Owners sought permission from the City to terminate

the tenant’s month-to-month lease to allow the

with his new wife. . . . Richard Worner (Worner) owns a

three-unit building in San Francisco. Worner, a San

Francisco resident, purchased the building in 1974 and

has lived there in the past but does not reside in the

building at this time. Worner would like his adult son to

move into the basement unit of this building . . . . Yasin

Salma (Salma), a San Francisco resident for 37 years,

purchased a six-unit building in San Francisco in June

1998 with the intention that his four children could each

move into their own units.

90 Cal.App.4th at 647–49.

https://www.pewresearch.org/fact-tank/2022/07/20/youngadults-in-u-s-are-much-more-likely-than-50-years-ago-to-beliving-in-a-multigenerationalhousehold/#:~:text=The%20share%20of%20young%20adults,in

%20the%20home%20in%202021.

6

8

Reveres’ son, daughter-in-law, and two grandchildren

to live in the upper unit. App.9a.

C. Los Angeles Refuses the Owners’

Request to Evict for Family Occupancy

On September 23, 2019, the Owners submitted a

Declaration of Intent to Evict Tenant for Landlord

Occupancy (Application) with the Los Angeles

Housing Department. App.25a. The tenant objected,

claiming he was shielded from eviction as a Rent

Stabilization Ordinance (RSO)-protected tenant due

to his residence in the unit for more than ten years

and a claimed, unknown disability. App.30a. Although

the Owners contested the disability claim, on October

28, 2019, the City summarily denied the Owners’

eviction application because the unit was occupied by

a tenant with “protected” status under the RSO. Id.

The City enacted the RSO in 1990 in part to

address a “shortage of decent, safe and sanitary

housing in the City of Los Angeles resulting in a

critically low vacancy factor.” App.28a. In relevant

part, the RSO provides that a landlord “may not

recover possession of a rental unit” if the tenant is

classified as a “protected tenant.” App.8a (emphasis

added). A tenant has “protected tenant” status under

the RSO if he has continuously resided in a unit for

over ten years and is either at least 62 years old or is

disabled or handicapped, as defined by 42 U.S.C. § 423

or California Health and Safety Code § 50072. App.8a.

The RSO permits a landlord to end the tenancy of

a protected tenant only by completely removing the

property from the rental market pursuant to code

provisions that regulate such withdrawals. A landlord

seeking to withdraw rental property from the market

9

must apply to the City and give affected tenants—

even month-to-month tenants—one year’s notice of the

withdrawal and resulting end of a tenancy. App.8a–

9a. Any approved withdrawal of property from the

rental market is subject to substantial conditions. For

instance, a rental owner withdrawing a unit cannot

re-rent the subject building within two years of

withdrawal. L.A. Mun. Code § 151.25. Further, if the

owner of a withdrawn unit seeks to re-rent the

building within five years, she may only do so at the

rate of rent in existence when the withdrawal

occurred. L.A. Mun. Code § 151.26(A).

When the City relied on the RSO to deny the

Owners’ request to evict a tenant to facilitate a family

move-in, the Owners filed a complaint against the

City in the United States District Court for the

Central District of California.

D. Proceedings Below

The Owners’ complaint asserts two causes of

action under 42 U.S.C. § 1983: (1) a violation of the

Takings Clause of the Fifth Amendment of the United

States Constitution and (2) a violation of the Due

Process Clause of the Fourteenth Amendment.

App.32a–33a. The City moved to dismiss for failure to

state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6). App.9a.

On February 11, 2021, the district court granted

the City’s motion to dismiss. With respect to the

Owners’ takings claim, the court explained that

“Plaintiffs assert that the challenged provisions, as

applied to their Property, constituted a physical

taking by transferring their right to possession to a

third party, effectively granting the Tenant a life

10

estate in the Property.” App.10a. Briefly reviewing

this Court’s precedent, the district court observed that

“[t]he government effects a physical taking only where

it requires the landowner to submit to the physical

occupation of his land.” App.11a (quoting Yee, 503 U.S.

at 519). It held that the Owners were not

unconstitutionally barred from “terminating a

tenancy” because (1) they had “acquired the Property

knowing that the Tenant lived there and knowing that

it was subject to the RSO,” and (2) they “have the

option to withdraw the Property from rental housing

use, provided they give the Tenant one year’s notice.”

App.11a–12a (citing Harmon v. Markus, 412 F.App’x

420, 422 (2d Cir. 2011)).

In thus rejecting the takings claim, the district

court relied on Yee v. City of Escondido, which it

characterized as holding that “a rent control

ordinance did not require landowners to submit to the

physical occupation of their property because they had

‘voluntarily rented their land.’” App.12a (citing Yee,

503 U.S. at 528). In the district court’s view, Yee

concluded that “[s]ince the landowners invited the

tenants onto the property, the government had not

forced the tenants upon the owners.” Id. The district

court also noted that the “ordinance in Yee still

allowed the landlord to evict tenants, albeit with sixor 12-months’ notice.” App.12a (quoting Yee, 503 U.S.

at 527–28). Applying this interpretation of Yee to the

instant case, the district court held that “[t]he

situation is exactly the same here.” Id. The court

stated: “Even if [the Owners] were required to rent to

the Tenant for the rest of his life, which they are not,

they are not required to lease the Property

permanently.” Id. (citing Troy Ltd. v. Renna, 727 F.2d

287, 301 (3d Cir. 1984)). Based on these conclusions,

11

the district court held that the Owners failed to state

a valid takings claim. App.12a.

The Ninth Circuit subsequently affirmed. The

court recognized that “government effects a per se

taking whenever a regulation ‘requires an owner to

suffer a permanent physical invasion of her

property’—whatever the purpose of the invasion, and

however minor its impact.” App.2a (quoting Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005)).

However, it quickly rejected the Owners’ claim that a

taking resulted because the City “‘granted the Tenant

the permanent physical occupation of the Property in

perpetuity’ by affording him protective status

pursuant to the City’s Rent Stabilization Ordinance

(“RSO”) and prohibit[ed] them from reclaiming the

Duplex for personal use.” App.3a.

Like the district court, the Ninth Circuit relied on

Yee to support its “no-taking” decision. In the Ninth

Circuit’s view, Yee upheld laws that “regulat[ed] the

relationship between landlord and tenant.” App.3a.

The Ninth Circuit then concluded that, “as in Yee, the

Owners ‘voluntarily rented their land,’ and were

[therefore] not required to submit to physical

occupation by another.” Id. (citing Yee, 503 U.S. at

527). The Ninth Circuit further noted that “the RSO

allows at-fault evictions, such as evictions for creating

a nuisance, breaking the law, or failing to pay rent,

. . . and grants landlords the right to end a protected

tenancy by removing the entire property from the

rental market with one year’s notice.” App.3a. Given

these purported options, the Ninth Circuit concluded

that the City did not force the Owners to “refrain in

perpetuity from terminating” the tenancy and,

12

therefore, did not take property. Id. (citing Yee, 503

U.S. at 528).

The Owners now petition for a writ of certiorari.

REASONS FOR GRANTING THE WRIT

I.

The Ninth Circuit’s Decision Conflicts With

This Court’s Physical Takings Precedent

This Court has long held that a governmentauthorized physical occupation of private property of

any size or duration amounts to a per se taking of

property. In concluding that Los Angeles’ decision to

prohibit the Owners from evicting a tenant so that

they can use a unit as a family residence is not a

taking, the decision below conflicts with this Court’s

jurisprudence.

A. This Court’s Precedent Indicates That

Any Physical Occupation of Property Is

a Per Se Taking

Applicable to the states through the Fourteenth

Amendment, the Takings Clause of the Fifth

Amendment prohibits local governments from taking

property without just compensation. Takings can

arise from actions that “physically” take property as

well as those that impose restrictions on the use of

property. Lingle, 544 U.S. at 539. A taking is most

clear when the government physically occupies or

invades property. See Loretto, 458 U.S. at 432–35.

In a series of takings decisions beginning with

Loretto, this Court held that government action

resulting in an occupation of private property violates

the Takings Clause “without regard to whether the

action achieves an important public benefit or has

only minimal economic impact on the owner.” Loretto,

13

458 U.S. at 434–35. This Court recently affirmed the

Loretto physical takings rule in Cedar Point, holding

that “[w]henever a regulation results in a physical

appropriation of property, a per se taking has

occurred.” 141 S.Ct. at 2072. In so doing, Cedar Point

emphasized that an invasion of property need not be

permanent to trigger the per se takings test. A taking

will result from a permanent or temporary occupation

of property; “[t]he duration . . . bears only on the

amount of compensation.” Id. at 2074 (citing Loretto,

458 U.S. at 436–37).

Additionally, in both Loretto and Cedar Point, this

Court concluded that the existence of a physical

taking does not depend on whether the government

itself occupies property. A physical taking also exists

when the government authorizes third parties to

occupy property. Loretto, 458 U.S. at 432 n.9; Cedar

Point, 141 S.Ct. at 2072 (The essential question is

“whether the government has physically taken

property for itself or someone else.”); see also Nollan

v. Cal. Coastal Comm’n, 483 U.S. 825, 833 (1987) (a

physical taking arises when the government

authorizes individuals to access private land). Finally,

a completed intrusion into property is not needed to

state a physical takings claim. A per se, physical

taking arises as soon as government authorizes the

occupation of property. Cedar Point, 141 S.Ct. at 2072

(“Government action that physically appropriates

property is no less a physical taking because it arises

from a regulation.”).

In short, this Court’s precedent treats almost any

government-authorized occupation of property as a

“per se” physical taking that is unconstitutional

without compensation. Id.; Horne v. Dep’t of Agric.,

14

576 U.S. 350, 360 (2015). Thus, when a property

owner asserts that she has suffered an invasion of

property at the hands of government, the analysis

generally ends, and a viable takings claim exists,

without regard to other circumstances.

This Court has grounded the strict physical

takings framework on the destructive effect that a

physical occupation has on property rights. “Property”

is more than a material good; it is a bundle of rights,

including a right of possession, a right of use, a right

to exclude others from an item, and the right to

dispose of it. United States v. Gen. Motors Corp., 323

U.S. 373, 378 (1945). In Loretto and Cedar Point, this

Court emphasized the particular importance of an

owner’s right to exclude non-owners from private

property. Cedar Point, 141 S.Ct. at 2072 (“The right to

exclude is ‘one of the most treasured’ rights of

property ownership.” (quoting Loretto, 458 U.S. at

435)). If government takes a property owner’s right to

exclude others, the property is no longer “private” at

all. Thomas W. Merrill, Property and the Right to

Exclude, 77 Neb. L. Rev. 730, 730 (1998) (“Give

someone the right to exclude others from a valued

resource, i.e., a resource that is scarce relative to the

human demand for it, and you give them property.

Deny someone the exclusion right and they do not

have property.”).

Because a physical occupation of property “chops

through the bundle [of property rights], taking a slice

of every strand,” including the right to exclude others,

physical occupations of property trigger a per se

takings test. Loretto, 458 U.S. at 435–36; Kaiser Aetna

v. United States, 444 U.S. 164, 179–80 (1979) (“[T]he

‘right to exclude,’ so universally held to be a

15

fundamental element of the property right, falls

within this category of interests that the Government

cannot take without compensation.” (footnote

omitted)).

B. The Decision Below Conflicts With the

Court’s Per Se Physical Takings

Precedent

1.

The Ninth Circuit’s decision conflicts

with Loretto and Cedar Point.

In this case, the Owners sought to evict a tenant,

pursuant to the terms of the tenant’s month-to-month

lease, so they could house family members in the

relevant unit. But Los Angeles denied the Owners’

request, thereby forcing them to submit to the tenant’s

continued, indefinite occupation of their property.

Under a straightforward reading of Loretto and Cedar

Point, this should qualify as a per se, physical taking.

See Heights, 30 F.4th at 733; Elizabeth Naughton,

San Francisco’s Owner Move-In Legislation: Rent

Control or Out of Control?, 34 U.S.F. L. Rev. 537, 564–

65 (2000) (arguing that a city’s rent control ordinance

that grants “protected class” status to tenants even

against an owner’s desire to personally occupy the

space is a physical taking under Loretto); Paul J.

Larkin, The Sturm und Drang of the CDC’s Home

Eviction Moratorium, 2021 Harv. J.L. & Pub. Pol’y

Per Curiam 18, 28–29 (“The [CDC’s] order forces an

owner to accept a government-imposed squatter for as

long as a moratorium is in effect. Unlike a rent control

statute, which limits only increases in what can be

charged for a particular unit as long as the lessee is

current on his or her rent, the CDC’s order entitles a

tenant to reside in property that he or she no longer

16

has a legitimate right to occupy without paying rent.”

(footnote omitted)).

After all, the City’s decision to grant exclusive

occupancy of the Owners’ unit to the tenant slices

through the Owners’ entire bundle of rights. The

action prevents them from exercising their right to

exclude an unwanted person from the property, bars

them from possessing the occupied unit as their own,

and prevents them from using their property as they

wish, i.e., to house their own family members. Just as

“government-authorized invasions of property—

whether by plane, boat, cable, or beachcomber—are

physical takings,” Cedar Point, 141 S.Ct. at 2074, a

compelled occupation by a tenant should also qualify

as a per se taking. See Alabama Ass’n of Realtors v.

Dep’t of Health & Human Servs., 141 S.Ct. 2485, 2489

(2021) (“[P]reventing [property owners] from evicting

tenants who breach their leases intrudes on one of the

most fundamental elements of property ownership—

the right to exclude.” (citing Loretto, 458 U.S. at 435)).

Nevertheless, in the decision below, the Ninth

Circuit disregarded the letter and spirit of the Court’s

physical takings precedent by concluding that a

compelled tenant occupancy avoids physical takings

analysis because it arises in the context of rental

property. The Ninth Circuit concluded that the

voluntary nature of a property owner’s initial decision

to rent property bars the owner from later claiming

that a taking results when government makes the

tenancy involuntary and continuous. App.3a (citing

Yee, 503 U.S. at 527).

Such a conclusion is not aligned with this Court’s

decisions. On several occasions, this Court has

repudiated the idea that an owner’s decision to use

17

property a certain way waives their right to claim the

protections of the Takings Clause. In Loretto, for

example, the government argued that a property

owner could not challenge the statutorily-compelled

placement of a cable box serving tenants as a taking

because the owner had elected to rent the building.

This Court held that “a landlord’s ability to rent his

property may not be conditioned on his forfeiting the

right to compensation for a physical occupation.” 458

U.S. at 439 n.17. More recently, in Horne, the Court

rejected the contention that a raisin farmer’s decision

to put his crop into the stream of commerce waived his

right to challenge regulations requiring a physical

appropriation of the raisins:

The Government contends that the reserve

requirement is not a taking because raisin

growers voluntarily choose to participate in

the raisin market. According to the

Government, if raisin growers don’t like it,

they can “plant different crops,” or “sell their

raisin-variety grapes as table grapes or for

use in juice or wine.” “Let them sell wine” is

probably not much more comforting to the

raisin growers than similar retorts have been

to others throughout history. In any event,

the Government is wrong as a matter of law.

. . . Property rights cannot be so easily

manipulated.

Horne, 576 U.S. at 365 (cleaned up).

Similarly, a property owner who elects to rent

property may temporarily relinquish the right to

personally use the property, on the understanding

that he will regain the property and its use at the end

of the tenancy. But nothing in takings doctrine

18

justifies the conclusion that such a temporary and

conditional leasing decision permanently forfeits the

owners’ traditional property rights, or their corollary

right to claim a taking when a tenant occupancy

becomes government-compelled and permanent,

rather than voluntary and temporary. Cwynar, 90

Cal.App.4th at 658 (“The City argues that . . . once the

landlord has consented to [a tenant’s] physical

occupation, the government may force him to tolerate

the occupation until he removes his property from the

rental market. In our opinion, neither Yee nor Loretto

support this proposition.”); William K. Jones,

Confiscation: A Rationale of the Law of Takings, 24

Hofstra L. Rev. 1, 82 (1995) (“The whole argument”

that a property owner’s decision at one point to invite

someone into their property waives their right to

claim a taking later “is a sham—rejected by the

Supreme Court.”).

The court below also seemed to believe that the

City’s eviction denial did not create a physical taking

because the Owners could seek to take their unit off

the rental market—if they give the tenant one year’s

notice of termination of the lease, and submit to

restrictions on the future rental of their property. But

this Court’s precedent also forecloses this purported

takings escape route. In Cedar Point, this Court held

that “a physical appropriation is a taking whether it

is permanent or temporary.” 141 S.Ct. at 2074

(emphasis added). A year-long compelled occupancy of

property is just as much a taking as a ten-year

occupancy. Id. Therefore, the physical taking

occurring here is not obviated by the possibility that

the Owners can reclaim and exercise their right to

exclude an unwanted tenant by withdrawing their

property from the rental market and agreeing to allow

19

the tenant to remain in the property for another year.

If a landlord’s “ability to rent property” cannot be

conditioned on a physical occupation of property,

Loretto, 458 U.S. at 439 n.17, certainly a landlord’s

right to exclude a tenant cannot be conditioned on a

one-year physical taking.

2.

The Ninth Circuit’s interpretation of

Yee is inconsistent with this Court’s

understanding of the case.

To be sure, the Ninth Circuit believed that this

Court’s decision in Yee justified its conclusion that a

compelled tenancy is not subject to physical takings

precedent like Loretto. The court below effectively

concluded that Yee immunizes laws that ban evictions

and authorizes unwanted tenant occupations of

property from traditional physical takings scrutiny.

App.3a. This reading is incorrect and perpetuates a

common misinterpretation of Yee that has spread

throughout the lower courts, one increasingly

employed to defeat takings claims arising from

coerced tenancies.

In Yee, property owners challenged a local rent

control ordinance that, in combination with state law,

limited the rates that the owner could charge for

leases of the land beneath mobile homes. 503 U.S. at

523–25. The Yee owners did not seek to evict anyone

nor did they object to any particular tenant’s

occupancy nor did they seek themselves to occupy the

property. Rather, the owners asserted that the

ordinance caused a physical taking on its face by

giving tenants the right to occupy land at a submarket

rent, thereby effecting a wealth transfer from the

owners to tenants. Id. at 527 (“[T]he rent control

ordinance has transferred a discrete interest in land—

20

the right to occupy the land indefinitely at a

submarket rent—from the park owner to the mobile

home owner.”).

The Yee Court held its physical takings precedent

was not the proper framework for such a challenge. Id.

at 528. It stated that “the government effects a

physical taking only where it requires the landowner

to submit to the physical occupation of his land.” Id.

at 527. While accepting that the ordinance made the

tenant’s interest more valuable and the owner’s

interest less valuable, the Court held the owners’

takings claim based on this wealth transfer was not

governed by physical takings analysis. Id. at 529. The

Court stated:

Ordinary rent control often transfers wealth

from landlords to tenants by reducing the

landlords’ income and the tenants’ monthly

payments, although it does not cause a onetime transfer of value as occurs with mobile

homes. . . . The mobile home owner’s ability to

sell the mobile home at a premium may make

this wealth transfer more visible than in the

ordinary case, but the existence of the

transfer in itself does not convert regulation

into physical invasion.

Id. at 529–30 (citation omitted).

The Court also rejected the Yee plaintiffs’

argument that the Ordinance caused a taking by

preventing them from employing lease price

discrimination to weed out particular tenants. The

Court held that this “does not convert regulation into

the unwanted physical occupation of land. Because

they voluntarily open their property to occupation by

21

others, petitioners cannot assert a per se right to

compensation based on their inability to exclude

particular individuals.” Id. at 531.

Importantly, the Yee Court carefully limited its

holding, stating: “A different case would be presented

were the statute, on its face or as applied, to compel a

landowner over objection to rent his property or to

refrain in perpetuity from terminating a tenancy.” Id.

at 528 (emphasis added). The Court further observed

that “[h]ad the city required such an occupation, of

course, petitioners would have a right to

compensation, and the city might then lack the power

to condition petitioners’ ability to run mobile home

parks on their waiver of this right.” Id. at 532. But the

Court concluded that the case did not involve a forced

occupancy, “[a]t least on the face of the regulatory

scheme.” Id. at 527–28 (noting that, on the face of the

law, “neither the city nor the State compels

petitioners, once they have rented their property to

tenants, to continue doing so”).

The Ninth Circuit’s conclusion that Yee, rather

than physical takings cases like Loretto and Cedar

Point, controls disposition of the eviction banchallenging takings claim in this case is at odds with

the Yee decision itself. See Jon Houghton, The

Misapplication of Yee v. Escondido in Eviction

Moratorium Cases, 39 No. 1 Prac. Real Est. Law. 17,

19 (2023) (“Yee does not stand for the legal proposition

that the voluntary act of renting waives any

subsequent physical takings claim” arising from

tenant occupation). Indeed, this case presents the very

sort of claim that the Yee Court indicated would

trigger application of a physical takings test, like that

in Loretto. Here, unlike in Yee, the Owners do not

22

claim that a rent control law has transferred the value

of their property to tenants. Instead, their claim arises

from the City’s decision to prohibit them from

displacing a tenant (in accordance with a lease), so

that they can move close family members into their

property. Their core assertion is that the City has

“compel[led] a landowner over objection to rent his

property or to refrain in perpetuity from terminating

a tenancy,” the very allegation that the Yee Court

noted would create a physical takings claim. See 503

U.S. at 528.7

Unfortunately, as noted, many lower courts have

adopted the same broad misreading of Yee as the

Ninth Circuit in this case. See, e.g., Elmsford Apt.

Assocs., LLC v. Cuomo, 469 F.Supp.3d 148, 163

(S.D.N.Y. 2020) (“The Supreme Court has ruled that a

state does not commit a physical taking when it

restricts the circumstances in which tenants may be

evicted.”) (citing Yee). The Court should grant the

Petition to hold that Yee does not preclude or defeat a

physical takings claim against a law that requires the

indefinite occupation of private property by an

unwanted tenant. Put another way, the Court should

hold that Yee does not override Loretto and Cedar

Point in the context of claims against a governmentcompelled tenancy. See F.C.C. v. Fla. Power Corp., 480

U.S. 245, 252 (1987) (the “element of required

acquiescence is at the heart of the concept of

When Yee was decided, even Respondent City of Escondido

recognized that a physical taking would result if the government

prevented owners from reclaiming property for personal use.

Brief for Respondent, Yee v. City of Escondido, 503 U.S. 519

(1992) (No. 90-1947), 1992 WL 545135, at *21 (“[T]he essential

right to exclude others inheres only in ‘property reserved by its

owner for private use.’” (citing Nollan, 483 U.S. at 831)).

7

23

occupation” for purposes of physical takings analysis

(emphasis added)). See also Pinewood Estates of

Michigan v. Barnegat Tp. Leveling Bd., 898 F.2d 347,

355 (3d Cir. 1990) (Stapleton, J., concurring)

(“[W]here the state permanently takes away a

landlord’s right to evict a tenant and his successors

beyond the end of an agreed upon term a permanent

physical occupation occurs and there is a per se taking

under Loretto[.]”).

II. The Decision Below Conflicts With Lower

Court Decisions, Including a Recent

Decision of the Eighth Circuit

The Ninth Circuit’s decision is not only

inconsistent with this Court’s physical takings

jurisprudence, it conflicts with numerous federal and

state court decisions issued over the past several

decades.

A. The Ninth Circuit Decision Conflicts

With the Decision of the Eighth Circuit

in Heights

In Heights, 30 F.4th 720, the state of Minnesota

enacted a pandemic-driven law that barred all

residential evictions except for those in which the

tenants endangered the safety of other residents or

significantly damaged the property, or where the

owner’s family needed to move into the unit. Id. at

724–25. The rental owners sued, claiming these

eviction restrictions caused a “physical taking[]

because they forced landlords to accept the physical

occupation of their property regardless of whether

tenants provided compensation.” Id. at 733. The

district court dismissed their claims but, on appeal,

the Eighth Circuit reversed, holding that the owners

24

stated a viable physical takings claim. Id. In so doing,

the Heights court rejected the government’s argument

“that no physical taking has occurred because

landlords were not deprived of their right to evict a

tenant” but only faced eviction “restriction[s]” “similar

to [those in] Yee v. City of Escondido, 503 U.S. 519

(1992).” Id.

The Eighth Circuit concluded that Yee considered

laws that “limited the amount of rent that could be

charged and neither deprived landlords of their right

to evict nor compelled landlords to continue leasing

the property past the leases’ termination.” Id. In

contrast, the Eighth Circuit emphasized that the

orders at issue in Heights “forbade the nonrenewal

and termination of ongoing leases, even after they had

been materially violated, unless the tenants seriously

endangered the safety of others or damaged property

significantly.” Id. Therefore, the Heights court

concluded that the eviction moratorium “turned every

lease in Minnesota into an indefinite lease, terminable

only at the option of the tenant.” Id. (citation omitted).

The orders “deprived Heights of its right to exclude

existing tenants without compensation,” and gave rise

to a viable physical takings claim under Cedar Point.

Id.

In this case, the Ninth Circuit came to an opposite

conclusion. Contrary to the Eighth Circuit’s decision

in Heights, the court below held that an eviction

prohibition could not give rise to a viable physical

takings claim. Furthermore, the decision below split

with the Heights court on the scope of Yee. While the

Eighth Circuit narrowly read Yee as a “rent control”

decision that did not apply to an eviction prohibition,

the Ninth Circuit broadly construed Yee to preclude

25

physical takings claims levied against laws that

“regulate the landlord-tenant relationship,” including

those that authorize an indefinite tenant occupancy.

The Court should grant this case to resolve the

conflict. See Heights Apts., LLC v. Walz, 39 F.4th 479,

482 (8th Cir. 2022) (Colloton, J., dissenting from

denial of petition for rehearing en banc) (“Given the

broad implications of the panel decision, and the

conflicts in authority that the decision has generated,

this proceeding involves questions of exceptional

importance. . . . [T]he panel decision will live on as a

circuit precedent at odds with decisions of the

Supreme Court and other federal courts.”);Yee, 503

U.S. at 526 (granting certiorari to resolve a “takings”

conflict among the circuits).

B. The Decision Below Exacerbates

Conflict Among the Lower Courts

a

The Ninth Circuit’s decision is not just in conflict

with the Eighth Circuit. Lower courts have long

wrestled with the issue of whether a governmentcompelled tenancy that results in an unwanted

occupation of property is a taking. While some courts

have held that a forced tenancy causes a taking under

this Court’s physical takings precedent, others have

rejected this view. In refusing to find a taking in this

case, the Ninth Circuit decision conflicts with the

former decisions, and thus magnifies the long-running

split among lower courts on whether this Court’s

physical takings precedent applies to eviction bans

that force property owners to submit to a compelled

tenancy.

26

1. Some courts have held that a

government-authorized occupation of

property by a tenant is a physical

taking.

Over the last several decades, many state

appellate courts have concluded that a law that forces

a property owner to submit to an indefinite, unwanted

tenancy is a per se taking under this Court’s physical

taking doctrine.8

For instance, the highest courts in the states of

New York and Massachusetts have held that a

compelled tenancy constitutes a physical taking under

this Court’s precedent. In Seawall Assocs. v. City of

New York, 74 N.Y.2d 92, 104, cert. denied, 493 U.S.

976 (1989), the New York high court concluded that

“[a]lthough the Supreme Court has not passed on the

specific issue of whether the loss of possessory

8 Between 1986–2019, there were far fewer federal court cases

than state court cases addressing whether a compelled tenancy

violates the Takings Clause. This jurisdictional discrepancy is a

consequence of this Court’s 1985 decision in Williamson County

Regional Planning Commission v. Hamilton Bank, 473 U.S. 172

(1985), which held that federal takings claimants must pursue

remedies in state court prior to resorting to federal courts. In

2019, the Court overruled Williamson County’s “state

procedures” requirement, thus making federal courts as equally

available for federal takings suits as state courts. Knick v. Twp.

of Scott, 139 S.Ct. 2162, 2167 (2019). A few pre-Williamson

County federal court decisions do address the eviction ban

takings issue. See, e.g., Rivera v. R. Cobian Chinea & Co., 181

F.2d 974, 978 (1st Cir. 1950) (after invalidating anti-eviction law

on due process grounds, court noted, “[f]or the Legislature to

compel the plaintiff against his will to keep his property in the

rental market and to prevent him from using it in his own

personal business for the duration of the emergency would

appear to be a ‘taking’” (citation omitted)).

27

interests, including the right to exclude, resulting

from tenancies coerced by the government would

constitute a per se physical taking, we believe that it

would.”

To the same effect is Polednak v. Rent Control

Board of Cambridge, 397 Mass. 854, 862 (1986).

There, the plaintiff purchased a rented condominium,

believing that she could live in it. When a local law

interfered with the owner’s plan to move in, the

Massachusetts Supreme Judicial Court concluded

that the law would violate the Constitution if it would

“physically exclude her from living in her unit as

owner, and would require that the unit be made

available for physical occupation by a tenant. . . .

[This] would be a taking for which she would be

entitled to just compensation.” Id.

In Aspen-Tarpon Springs Ltd. P’ship v. Stuart,

635 So.2d 61 (Fla. Dist. Ct. App. 1994), a Florida

appellate court also held that a statute that forced

mobile home park owners to acquiesce to indefinite

tenant occupation of their property unless they buy

the mobile homes was a taking. Relying largely on this

Court’s physical takings jurisprudence, the Florida

court held that “the challenged statute authorizes a

permanent physical occupation of the park owner’s

property and effectively extinguishes a fundamental

attribute of ownership, the right to physically occupy

one’s land.” Id. at 67–68.

On several occasions, California state courts have

also concluded that laws barring rental owners from

displacing a tenant so that they may house

themselves or their family members constitutes a

physical taking under this Court’s precedent. See

Bakanauskas v. Urdan, 206 Cal.App.3d 621, 627

28

(1988) (An eviction law that barred an owner from

“occupy[ing] as a personal residence, while the

benefits of the property as a residence could be

enjoyed indefinitely by the tenant . . . would render

the

statute

unconstitutionally

confiscatory.”);

Cwynar, 90 Cal.App.4th at 654–55.

Cwynar is of particular note. There, rental

property owners challenged a law that prohibited

them from evicting tenants so that they could house

themselves or their family members in their property.

The owners claimed that the law caused “a per se

physical taking because it effectively grants tenants

lifetime tenancies in plaintiffs’ buildings by depriving

plaintiffs of their rights to both occupy their own

property and to exclude others from their property so

close family members may occupy it.” Id. at 653.

The California Court of Appeals concluded that

the Cwynar owners could establish a valid, “asapplied” physical takings claim by “showing that the

challenged ordinance has the effect of compelling

them to rent property or to refrain in perpetuity from

terminating a tenancy.” Id. at 655–56. In so doing, the

Cwynar court distinguished Yee. In its view, “Yee

addressed a narrow issue—a facial challenge to a

purely economic rent control law” which “deprived

[the owners] of the only mechanism they had to

control the sale of a home located in their park, the

ability to threaten to increase the rent for the mobile

home pad.” Id. at 656–57 (emphasis in original).

But “[i]n contrast to Yee, the [Cwynar] case

involves an as applied challenge to a statute that

expressly restricts a property owner’s right to exclude

others and to live in property that he or she owns.” Id.

at 657 (emphasis in original). That is, the owners’

29

“claim is that the challenged statute itself precludes

owners from living in their own property by

compelling them to rent property to someone else

against their will.” Id. at 657–58. The court explained

that Yee

did not expressly or implicitly overrule the

line of authority we have already discussed

recognizing that an eviction control ordinance

may, under certain circumstances constitute

a physical taking. To the contrary, the [Yee]

Court acknowledged that a physical taking

might be caused by a statute that . . .

“compel[s] a landowner over objection to rent

his property or to refrain in perpetuity from

terminating a tenancy.”

Id. at 657 (quoting Yee, 503 U.S. at 528).

The Cwynar court also rejected the claim that per

se takings tests like that in Loretto are inapplicable to

eviction bans because the decision to rent property is

“voluntary.” The California court stated that the

question is not whether the property owner is

a landlord by choice. The question is whether

the regulation at issue authorizes a compelled

permanent physical occupation of the

landlord’s property. The government must

pay compensation when a regulation amounts

to a physical taking whether or not the

property at issue is owned by an individual

who has chosen to be a landlord.

Id. at 659. In short, “the fact that the property was

voluntarily rented at some time in the past does not

preclude the plaintiffs from pleading and proving

government coercion” created an unwanted tenant

30

occupancy. Id. at 658. See also id. at 659 (“[P]laintiffs’

status as voluntary landlords does not preclude them

from establishing that [the law], as applied to them,

effects a permanent physical taking of the portions of

their property that they are precluded from

occupying.”).

Finally, in Cwynar, the California Court of

Appeals rejected the argument that a forced tenancy

could not be a taking if the owners have the option to

take their property off the rental market. The court

concluded that “Yee does not support the proposition

that the option of leaving the rental market altogether

is a cure-all mechanism for government coercion.” Id.

at 657.

The Ninth Circuit decision cannot be squared

with the foregoing state court decisions. The conflict

is particularly striking in relation to the California

appellate decision in Cwynar. As detailed above,

Cwynar held that physical takings precedent governs

the issue of whether a ban on evictions designed to

house family members is a taking. The Ninth Circuit,

in contrast, flatly held that physical takings tests do

not apply. Cwynar narrowly construed Yee and held it

inapplicable to laws that authorize an indefinite

tenancy at the expense of the owners’ right to exclude.

The decision below broadly construed Yee and

concluded that it defeats a claim against a forced

tenancy. The Cwynar court held that the initial

voluntary act of renting property does not preclude a

takings claim if a law later turns a tenancy into an

indefinite, compelled one. On the other hand, in this

case, the Ninth Circuit held that an initial voluntary

rental decision (by a prior owner) barred the Owners

31

from asserting that the City’s decision to indefinitely

continue the tenancy is a per se physical taking.

Of course, the Ninth Circuit’s jurisdiction includes

the state of California. Given the conflict between the

Cwynar court and the Ninth Circuit on whether a

taking arises from an eviction prohibition that

prevents a property owner from housing a family

member, California rental owners have very different

constitutional rights depending on whether their

rights are considered in a state or federal court. In

federal court, Yee effectively immunizes the

government from any takings liability for forcing

property owners to submit to an unwanted, indefinite

tenancy that prevents the owner from personally

using the property. App.3a. Meanwhile, in state court,

Yee is inapplicable to this type of controversy, and it

is instead governed by physical takings precedent like

Loretto. Cwynar, 90 Cal.App.4th at 657–58.

2.

Other courts hold that an eviction

ban resulting in a compelled tenancy

is not a taking.

To be sure, not all lower court decisions are in

tension with the Ninth Circuit on the issue of whether

a government-compelled tenancy is a taking. Some

agree with the decision below in holding that a forced

tenancy is not a physical taking.

In Gonzales v. Inslee, 21 Wash.App.2d 110, 135

(2022), a Washington state appellate court considered

whether a COVID-19-based eviction moratorium was

a taking. The court found that “this case is similar to

Yee and is dissimilar to Cedar Point Nursery. As in

Yee, the eviction moratorium did not require the

appellants to submit to the physical occupation of

32

their property. Instead, the appellants were the ones

who invited their tenants to occupy their rental

property.” Id. at 136. “The proclamations merely

operated to ‘regulate [appellants’] use of their land by

regulating the relationship between landlord and

tenant.’” Id. at 137 (quoting Yee, 503 U.S. at 528).

Therefore, the Washington court held that “the

eviction moratorium did not constitute a physical per

se taking.” Id. Similarly, in State Agency of

Development and Community Affairs v. Bisson, 161

Vt. 8, 15 (1993), the Vermont Supreme Court rejected

the allegation that a mobile home statute that

restricted evictions and effectively created a perpetual

lease violated the Takings Clause.

Several federal courts have also held that no

physical taking arises from an eviction prohibition

causing an unwanted, indefinite tenancy. In Harmon

v. Markus, 412 F.App’x at 422, the Second Circuit held

that Yee defeated a takings claim against eviction

barriers causing an indefinite tenant occupation. The

court held that the owners could not state a physical

takings claim because they “acquiesced in [the

property’s] continued use as rental housing” by

purchasing rented property. Id. (citation omitted).

More recently, in Gallo v. District of Columbia,

No. 1:21-cv-03298, 2022 WL 2208934 (D.D.C. June 21,

2022), and Williams v. Alameda County, Nos. 3:22-cv01274-LB, 3:22-cv-02705-LB, 2022 WL 17169833

(N.D. Cal. Nov. 22, 2022), two federal district courts

rejected takings claims levied against COVID-based

restrictions on a property owner’s right to evict

renters. In both cases, the district courts concluded

that the physical takings analysis in Loretto and

Cedar Point was inapplicable to an eviction

33

prohibition, primarily on the basis of Yee. Further, in

Gallo and Williams, the district courts expressly

declined to follow the Eighth Circuit’s decision in

Heights (discussed above). While the Gallo court

admitted that “portions of Cedar Point appear to

conflict with Yee,” it concluded that Heights

misconstrued Yee, reading it too narrowly. 2022 WL

2208934, at *9–10 & n.6. The Gallo court was

“unconvinced” by Heights that Cedar Point, rather

than Yee, controlled the issue of whether an eviction

ban is a taking. The district court in Williams then

followed Gallo’s refusal to adopt the Heights court’s

analysis. 2022 WL 17169833, at *11; see also,

Elmsford Apt. Assocs., 469 F.Supp.3d at 163.

The foregoing summary gives rise to several

important conclusions. First, in concluding that no

taking arises from Los Angeles’ decision to deny the

Owners’ attempt to evict a tenant for a family movein, the decision below sides with courts that have

rejected eviction-ban takings challenges and against

other courts finding that such bans create a taking.

The Ninth Circuit’s decision thus increases the

conflict among the lower courts on the issue of

whether an eviction prohibition that compels an

indefinite tenant occupation is governed by physical

takings precedent, like Loretto and Cedar Point, or by

the rent control analysis in Yee. Second, the federal

court conflict on this issue is growing and now

centered on the Heights decision. See Heights, 39

F.4th at 480 (Colloton, J., dissenting from denial of

petition for rehearing en banc). The conflict among the

courts on whether physical takings precedent governs

a compelled tenancy is thus ripe for resolution. The

Court should grant the Petition to resolve the

confusion.

34

“[T]he protection of private property is

indispensable to the promotion of individual freedom,”

and “empowers persons to shape and to plan their own

destiny in a world where governments are always

eager to do so for them.” Cedar Point, 141 S.Ct. at

2071 (quoting Murr v. Wisconsin, 137 S.Ct. 1933, 1943

(2017)). A property owner’s right to end a tenancy to

house his own family members in residential property

is a longstanding aspect of free property ownership.

Although this Court’s physical takings precedent, and

many lower court decisions, indicate that a taking

results when government forces a property owner to

accept a stranger’s indefinite occupation of property,

the Ninth Circuit decision holds otherwise. The Court

should grant the Petition to explicitly hold that a law

that compels an owner to submit to an unwanted and

indefinite tenant occupation of property, in derogation

of the owner’s right to exclude and right to use

property, is a physical taking.

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

DATED: February 2023.

Respectfully submitted,

FRANK REVERE

Revere & Wallace

355 S. Grand Ave.

Suite 2450

Los Angeles, CA 90071

Telephone: (213) 943-1333

frank@reverelawfirm.com

J. DAVID BREEMER*

*Counsel of Record

DEBORAH J. LA FETRA

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

DLaFetra@pacificlegal.org

Counsel for Petitioners