Man Bites Dog! California Property Owner Wins Regulatory Taking Case in the California Court of Appeal

It’s getting a bit late where we are, and our night-owl days are behind us, so we can’t go through the whole thing right now in the detail it deserves, but a California Court of Appeal just upheld an owner’s regulatory taking case – the court of appeal opinion may be found by clicking on Avenida San Juan Partnership v. City of San Clemente, Case Nos. G043479 & G043534 (4th Dist., Div. 3, Dec. 14, 2011).  Go to for a preliminary discussion by Robert Thomas. For a discussion of the attorneys fees aspect of this controversy click here.

The court firmly upheld the trial court’s finding of a regulatory taking (zoning a 2.85-acre parcel for one house per 20 acres, while surrounded by land zoned for four houses per acre, thus rendering the subject land useless and effecting a taking), but the case was remanded for the limited purpose of (a) allowing the city to choose between paying or deleting the confiscatory zoning, (b) recalculating valuation (which the trial court that arrived at it, itself characterized as a “lowball”) and (c) recalculating attorneys fees.

To the best of our knowledge, this is only the second successful regulatory taking case in California state courts. There is one more in the federal courts in California — the City of Monterey v. Del Monte Dunes case which was affirmed by the U.S. Supreme Court. In spite of the fact that la-la land is the largest, and the most stringently regulated state in the mainland United States, that has accounted for as many claims of regulatory takings cases in the U.S. Supreme Court as the rest of the country put together, there haven’t been any other successful regulatory takings cases. But lots of unsuccessful ones.