Word reaches us that the California Supreme Court has granted review in a regulatory taking case: Bottini v. County of San Diego. The issue in question is described on David Ettinger’s Cal Supreme Court blog “At the Podium” as follows.
•The court granted review in Bottini v. City of San Diego, where the Fourth District, Division One, Court of Appeal held in a published opinion that San Diego erroneously required environmental review of a single-family-home construction project. The City relied on “historical resources” and “unusual circumstances” provisions in the California Environmental Quality Act. However, the appellate court also upheld the dismissal on summary judgment of the property owners’ constitutional claims under the takings, equal protection, and due process clauses. It was the property owners whose petition for review the court granted. [Update: The Supreme Court apparently isn’t interested in the CEQA issue as much as it is in the takings issue. The case’s issue, as summarized by court staff, is this: “Does the ‘substantially advances’ formula used in Landgate, Inc. v. California Coastal Com’n (1998) 17 Cal.4th 1006 or the Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104 test (see Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528) determine whether there has been a regulatory taking under the California Constitution?” . . .]
Ettinger is a partner in the appellate powerhouse law firm of Horvitz & Levy, and runs his blog on the doings of California appellate courts.
We’ll keep our eye on this one. SCOTUS held in the Lingle case that the “substantially advance” test is properly applicable to substantive due process, not to takings cases. So this may well be the California Supreme Court’s effort to bring its own jurisprudence into line with SCOTUS legal doctrine. Or, if we are lucky, it may be a step by the state high court to pause and at least begin bringing some fairness and intellectual order into this misbegotten field of law. Then again, maybe not. So stay tuned and keep in mind Yogi Berra’s wisdom: “Prediction is very difficult. Especially about the future.”