California Supreme Court Upholds Inclusionary Housing

Earlier this week the California Supreme Court issued a major takings decision rejecting a suit by the California Building Industry Association (“CBIA”) seeking invalidation of the City of San Jose’s inclusionary housing ordinance. The unanimous decision In CBIA v. City of San Jose is not only a ringing affirmation of the constitutionality of inclusionary housing policies but also an important explication of the line between “exactions” (subject to unusually strict judicial review) and land use regulation (subject to more traditional, deferential review). The case was brought under both the California and the Federal takings clauses, but the California Court assumed the two clauses should be interpreted congruently in this context. Read the rest of this entry »

Cert Grant in Horne v. Department of Agriculture

Today the U.S. Supreme Court granted a petition for certiorari in the takings case of Horne v. Department of Agriculture.    As followers of this blog may recall, the U.S. Supreme Court has already been around once in this case.

The issues as presented in the cert petition are as follows:   “(1) Whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.”

Stay tuned.  More to follow.


Property Reserve case — Precondemnation Activities

On Wednesday the California Supreme Court agreed to hear an interesting case addressing the types of surveys and investigations of private property the government can undertake without triggering takings liability before deciding whether the property is suitable for a planned public infrastructure project and should be taken by eminent domain for that purpose.

The case arises from California’s proposal to construct a tunnel or canal to divert fresh water from northern California around the Sacramento–San Joaquin River Delta to central and southern California.  The project has enormous significance for meeting the water supply needs of many millions of Californians, and also raises a host of environmental concerns.  The tunnel or canal would cross tens of thousands of acres of land held by several hundred different owners.  To determine whether the project can be built as planned, the State proposes to do a series of geological explorations and environmental surveys of the proposed right on way.  The question is whether these precondemnation activities themselves amount to takings. Read on …

Property Rights in Water Are Different

Further confirmation that property rights in water really are different — and more limited — than property rights in other resources is provided by the June 16 decision of the California Court of Appeals in the case of Light v. State Water Resources Control Board.   The court rejected a challenge by property owners in the Russian River basin to a state water board regulation that will restrict surface water diversions to protect endangered salmon. The regulation was adopted in response to disastrous strandings of salmon that occurred in April 2008 when large volumes of water were drained from the river and sprayed on vineyards and orchards to prevent frost damage.   The board’s new regulation is designed to protect the salmon by controlling similar future diversions of water. Read on …

The Ninth Circuit Rules in Horne: The Plot Thickens

The Supreme Court’s takings decisions last term in Horne and Koontz have each generated considerable debate and consternation.  Now, the Ninth Circuit has issued a new ruling in Horne on remand that relies heavily on the analysis in Koontz to resolve the Hornes’ claim. The Ninth Circuit handed the government a win, ruling that the Hornes failed to demonstrate a taking due to the Secretary of Agriculture’s assessment of penalties against them for declining to “reserve” a portion of their raisin crop in accordance with the Agricultural Marketing Agreement Act of 1937.  Unfortunately, the Ninth Circuit’s legal analysis is an impenetrable tangle, largely because the Supreme Court itself has been so confusing, and the long-term implications of the Ninth Circuit’s decision are both unpredictable and troubling. Read on …