takings clause in California

2025Inc. (2005) 544 U.S. 528, 536 (Lingle).) By requiring the government to pay for what it takes, the takings clause prevents the government from “ ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 618 ; Armstrong v. United States (1960) 364 U.S. 40, 49 .) The Supreme Court has identified two general categories of takings: “physical takings” and “regulatory takings.” (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 321 .) A

2025Inc. (2005) 544 U.S. 528, 536 (Lingle).) By requiring the government to pay for what it takes, the takings clause prevents the government from “ ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 618 ; Armstrong v. United States (1960) 364 U.S. 40, 49 .) The Supreme Court has identified two general categories of takings: “physical takings” and “regulatory takings.” (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 321 .) A

2025XI, § 7; California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 455-460 (California Building).) Before us is a constitutional challenge to a development impact fee brought under the Fifth Amendment’s takings clause, which prohibits the government from taking private property for public use without just compensation.

2024(See, e.g., California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 462 [“As a general matter, so long as a land use regulation does not constitute a physical taking or deprive a property owner of all viable economic use of the property, such a restriction does not violate the takings clause insofar as it governs a property owner's future use of his or her property”]; Simple Avo Paradise Ranch, LLC v. Southern California Edison Company (2024) 102 Cal.App.5th 281 , 289 [to state a claim for inverse condemnation, a plaintiff must allege that a public entity has taken or dam

2022Code, § 66000 et seq.) 1 and the takings clause of the United States constitution, namely the special application of the “unconstitutional conditions doctrine” in the context of land-use exactions established in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 (Dolan).

2019Inc. (2005) 544 U.S. 528, 536-537 .).) One instance in which a violation of the takings clause may occur is "[u]nder the well-settled doctrine of 'unconstitutional conditions,' " under which "the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken for a public use—in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property." (Dolan v. City of Tigard (1994) 512 U.S. 374, 385 .) Although the Lindstroms' takings clause argument is not

2015But the United States Constitution, through the takings clause of the Fifth Amendment, protects us all from being arbitrarily singled out and subjected to bearing a disproportionate share of these costs.” (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 912 [ 50 Cal.Rptr.2d 242 , 911 P.2d 429 ] (cone. & dis. opn. of Kennard, J.).) With this caveat, I join the majority in upholding the ordinance in question.

2015But the United States Constitution, through the takings clause of the Fifth Amendment, protects us all from being arbitrarily singled out and subjected to bearing a disproportionate share of these costs.” (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 912 [ 50 Cal.Rptr.2d 242 , 911 P.2d 429 ] (cone. & dis. opn. of Kennard, J.).) With this caveat, I join the majority in upholding the ordinance in question.

2022Code, § 66000 et seq.) 1 and the takings clause of the United States constitution, namely the special application of the “unconstitutional conditions doctrine” in the context of land-use exactions established in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 (Dolan).

2016The court stressed prior cases holding that "as to property reserved by its owner for private use, 'the right to exclude [others is] "one of the most essential sticks in the bundle of rights that are commonly characterized as property." ' " ( Id. at p. 831, 107 S.Ct. 3141 .) It went on to opine: "We think a 'permanent physical occupation' has occurred, for purposes of [Takings analysis], where individuals are given a permanent and continuous right to *535 pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himse

2006Inc. (2005) 544 U.S. 528, 537 [ 161 L.Ed.2d 876 , 125 S.Ct. 2074, 2081 ] (Lingle); see also Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1014 [ 120 L.Ed.2d 798 , 112 S.Ct. 2886 ] (Lucas), citing Transportation Co. v. Chicago (1879) 99 U.S. 635, 642 [ 25 L.Ed. 336 ].) The takings clause applies as well to government enactments that, while not direct appropriations or ousters, are equivalent thereto.

2006Inc. (2005) 544 U.S. 528, 537 [ 161 L.Ed.2d 876 , 125 S.Ct. 2074, 2081 ] (Lingle); see also Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1014 [ 120 L.Ed.2d 798 , 112 S.Ct. 2886 ] (Lucas), citing Transportation Co. v. Chicago (1879) 99 U.S. 635, 642 [ 25 L.Ed. 336 ].) The takings clause applies as well to government enactments that, while not direct appropriations or ousters, are equivalent thereto.

2025Inc. (2005) 544 U.S. 528, 536 (Lingle).) By requiring the government to pay for what it takes, the takings clause prevents the government from “ ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 618 ; Armstrong v. United States (1960) 364 U.S. 40, 49 .) The Supreme Court has identified two general categories of takings: “physical takings” and “regulatory takings.” (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 321 .) A

2001The takings clause of the Fifth Amendment to the federal Constitution provides “[N]or shall private property be taken for public use, without just compensation.” “The aim of the Clause is to prevent the government ‘from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ [(Armstrong v. United States [(1960)] 364 U.S. 40, 49 [ 80 S.Ct. 1563, 1569 , 4 L.Ed.2d 1554 ]).]” (Eastern Enterprises v. Apfel (1998) 524 U.S. 498, 522 [ 118 S.Ct. 2131, 2146 , 141 L.Ed.2d 451 ].) Similarly, the California Constitution at article I,

2024Instead, he may bring a damages claim separately after successfully challenging the regulation. [Citation.] Thus, in Hensler we identified an exception to the general rule against splitting claims. [Citations.] In accordance with Hensler, Kavanau brought his present claim for damages, alleging two causes of action.” (Kavanau, supra, 16 Cal.4th at p. 779 .) The Supreme Court then addressed whether a taking occurred and determined “[t]he remedy of future rent adjustments available to Kavanau under the due process clause precludes a finding of a taking in this case.” (Kavanau, supra, 16 Cal.4th a

2024Instead, he may bring a damages claim separately after successfully challenging the regulation. [Citation.] Thus, in Hensler we identified an exception to the general rule against splitting claims. [Citations.] In accordance with Hensler, Kavanau brought his present claim for damages, alleging two causes of action.” (Kavanau, supra, 16 Cal.4th at p. 779 .) The Supreme Court then addressed whether a taking occurred and determined “[t]he remedy of future rent adjustments available to Kavanau under the due process clause precludes a finding of a taking in this case.” (Kavanau, supra, 16 Cal.4th a

2025Inc. (2005) 544 U.S. 528, 536 (Lingle).) By requiring the government to pay for what it takes, the takings clause prevents the government from “ ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 618 ; Armstrong v. United States (1960) 364 U.S. 40, 49 .) The Supreme Court has identified two general categories of takings: “physical takings” and “regulatory takings.” (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 321 .) A

2023These matters cannot be resolved in definitive terms until a court knows “the extent of permitted development” on the land in question. [Citation.]’ [Citation.] The primary question to be answered in resolving this issue is whether the landowner ‘obtained a final decision from the [agency] determining the permitted use for the land.’ ” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1299 (Dunn).) However, “ ‘[w]hile a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any develop

2023(San Remo, supra, 27 Cal.4th at pp. 668–669.) A developer could choose to comply with the ordinance “by constructing or bringing onto the market new units; by sponsoring such construction by a public or nonprofit private housing developer; or by paying, in lieu of such construction, a fee to a designated City housing fund.” (Id. at p. 668.) In rejecting the developer’s takings challenge, the court noted that under the majority’s holding in Erhlich, and pursuant to the Mitigation Fee Act, a mitigation fee that is not subject to the heightened scrutiny of Nollan and Dolan must nonetheless satisf

2023(San Remo, supra, 27 Cal.4th at pp. 668–669.) A developer could choose to comply with the ordinance “by constructing or bringing onto the market new units; by sponsoring such construction by a public or nonprofit private housing developer; or by paying, in lieu of such construction, a fee to a designated City housing fund.” (Id. at p. 668.) In rejecting the developer’s takings challenge, the court noted that under the majority’s holding in Erhlich, and pursuant to the Mitigation Fee Act, a mitigation fee that is not subject to the heightened scrutiny of Nollan and Dolan must nonetheless satisf

2017A takings claim that challenges the application of regulations to particular property is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." ( Williamson Co. Regional Planning v. Hamilton Bank (1985) 473 U.S. 172 , 186, 105 S.Ct. 3108 , 87 L.Ed.2d 126 ; accord Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006 , 1018, 73 Cal.Rptr.2d 841 , 953 P.2d 1188 ( Landgate ); see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340 , 348, 106 S.Ct.

2017A takings claim that challenges the application of regulations to particular property is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." ( Williamson Co. Regional Planning v. Hamilton Bank (1985) 473 U.S. 172 , 186, 105 S.Ct. 3108 , 87 L.Ed.2d 126 ; accord Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006 , 1018, 73 Cal.Rptr.2d 841 , 953 P.2d 1188 ( Landgate ); see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340 , 348, 106 S.Ct.

2008Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights.” (Lingle, supra, 544 U.S. at p. 539; see Herzberg, supra, 133 Cal.App.4th at p. 14 .) “[T]he Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests.” (Lingle, supra, 544 U.S. at p. 540.) Moreover, application of the Penn Central factors is informed by the purpose of the takings clause, which is to prevent the government from

2008Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights.” (Lingle, supra, 544 U.S. at p. 539; see Herzberg, supra, 133 Cal.App.4th at p. 14 .) “[T]he Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests.” (Lingle, supra, 544 U.S. at p. 540.) Moreover, application of the Penn Central factors is informed by the purpose of the takings clause, which is to prevent the government from

2015Further, although we explained in Kavanau that past decisions have generally applied a “confiscatory” analysis to challenges to price controls that are premised on either the takings clause or the due process clause— “focusing on the regulation’s impact and investors’ ability to earn a fair return” ( Kavanau, supra, 16 Cal.4th at p. 776, citing Duquesne Light Co. v. Barasch (1989) 488 U.S. 299, 305 [ 102 L.Ed.2d 646 , 109 S.Ct. 609 ]; FCC v. Florida Power Corp. (1987) 480 U.S. 245, 250-254 [ 94 L.Ed.2d 282 , 107 S.Ct. 1107 ]) — we also observed in Kavanau that several high court cases indicate

2015Further, although we explained in Kavanau that past decisions have generally applied a “confiscatory” analysis to challenges to price controls that are premised on either the takings clause or the due process clause— “focusing on the regulation’s impact and investors’ ability to earn a fair return” ( Kavanau, supra, 16 Cal.4th at p. 776, citing Duquesne Light Co. v. Barasch (1989) 488 U.S. 299, 305 [ 102 L.Ed.2d 646 , 109 S.Ct. 609 ]; FCC v. Florida Power Corp. (1987) 480 U.S. 245, 250-254 [ 94 L.Ed.2d 282 , 107 S.Ct. 1107 ]) — we also observed in Kavanau that several high court cases indicate

2023Co. v. New York City (1978) 438 U.S. 104, 136 .) Courts lack jurisdiction to adjudicate a takings claim where the government has not made a final decision on the scope of development permitted on the property at issue.

2017Assn. ) ["In contexts comparable to that at issue in this case, past cases of this court have interpreted the state takings clause 'congruently' with the federal takings clause."].) 18 "As a general matter, so long as a land use regulation does not constitute a physical taking or deprive a property owner of all viable economic use of the property, such a restriction does not violate the takings clause insofar as it governs a property owner's future use of his or her property, except in the unusual circumstance in which the use restriction is properly found to go 'too far' and to constitute a '

2018We reach this conclusion for the following reasons. *311 First, the California Supreme Court has held that the takings clause in the California Constitution should be construed "congruently" with the federal takings clause, with minor differences that are not applicable here. ( San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643 , 664, 117 Cal.Rptr.2d 269 , 41 P.3d 87 ; see also, e.g., Santa Monica Beach v. Superior Court (1999) 19 Cal.4th 952 , 957, 962-975, 81 Cal.Rptr.2d 93 , 968 P.2d 993 [takings challenge to rent control regulation under both clauses considered withou

2018We reach this conclusion for the following reasons. *311 First, the California Supreme Court has held that the takings clause in the California Constitution should be construed "congruently" with the federal takings clause, with minor differences that are not applicable here. ( San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643 , 664, 117 Cal.Rptr.2d 269 , 41 P.3d 87 ; see also, e.g., Santa Monica Beach v. Superior Court (1999) 19 Cal.4th 952 , 957, 962-975, 81 Cal.Rptr.2d 93 , 968 P.2d 993 [takings challenge to rent control regulation under both clauses considered withou

2023Thus, “an essential prerequisite” to the assertion of a takings claim “is a 32 final and authoritative determination of the type and intensity of development legally permitted on the subject property.” (MacDonald, Sommer & Frates v. Yolo County, supra, 477 U.S. at p. 348 .) A “‘final and authoritative determination’” requires that the plaintiff “must first have submitted a development plan which was rejected, but also . . . the plaintiff must seek variances which would permit uses not allowed under the regulations.” (Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449 , 1453- 1454, over

2017A takings claim that challenges the application of regulations to particular property is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." ( Williamson Co. Regional Planning v. Hamilton Bank (1985) 473 U.S. 172 , 186, 105 S.Ct. 3108 , 87 L.Ed.2d 126 ; accord Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006 , 1018, 73 Cal.Rptr.2d 841 , 953 P.2d 1188 ( Landgate ); see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340 , 348, 106 S.Ct.

2018Accordingly, this factor does not support a taking. ( Shaw, supra , 170 Cal.App.4th at p. 274 , 88 Cal.Rptr.3d 186 [holding that there was no regulatory taking, in part, because the government did not physically invade the property at issue]; Allegretti, supra , 138 Cal.App.4th at p. 1278 , 42 Cal.Rptr.3d 122 [same]; Rancho De Calistoga v. City of Calistoga (9th Cir. 2015) 800 F.3d 1083 , 1091 [same].) "We may dispose of a takings claim on the basis of one or two of [the Penn Central ] factors." ( Allegretti, supra , 138 Cal.App.4th at p. 1277 , 42 Cal.Rptr.3d 122 .) For the foregoing reasons-

2018Accordingly, this factor does not support a taking. ( Shaw, supra , 170 Cal.App.4th at p. 274 , 88 Cal.Rptr.3d 186 [holding that there was no regulatory taking, in part, because the government did not physically invade the property at issue]; Allegretti, supra , 138 Cal.App.4th at p. 1278 , 42 Cal.Rptr.3d 122 [same]; Rancho De Calistoga v. City of Calistoga (9th Cir. 2015) 800 F.3d 1083 , 1091 [same].) "We may dispose of a takings claim on the basis of one or two of [the Penn Central ] factors." ( Allegretti, supra , 138 Cal.App.4th at p. 1277 , 42 Cal.Rptr.3d 122 .) For the foregoing reasons-

2018Indeed, it has long been recognized that the purpose of section 19, as well as the purpose of the takings clause of the Fifth Amendment to the United States Constitution, is to ensure that individual property owners are not compelled to bear burdens or incur costs that, in fairness and justice, should be borne by the public at large. ( Richards v. Washington Terminal Co . (1914) 233 U.S. 546 , 557, 34 S.Ct. 654 , 58 L.Ed. 1088 [liability in inverse condemnation allowed where gases and smoke blown out of railroad tunnel imposed a "direct and peculiar and substantial ... burden upon plaintiff's

2018Indeed, it has long been recognized that the purpose of section 19, as well as the purpose of the takings clause of the Fifth Amendment to the United States Constitution, is to ensure that individual property owners are not compelled to bear burdens or incur costs that, in fairness and justice, should be borne by the public at large. ( Richards v. Washington Terminal Co . (1914) 233 U.S. 546 , 557, 34 S.Ct. 654 , 58 L.Ed. 1088 [liability in inverse condemnation allowed where gases and smoke blown out of railroad tunnel imposed a "direct and peculiar and substantial ... burden upon plaintiff's

2017A takings claim that challenges the application of regulations to particular property is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." ( Williamson Co. Regional Planning v. Hamilton Bank (1985) 473 U.S. 172 , 186, 105 S.Ct. 3108 , 87 L.Ed.2d 126 ; accord Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006 , 1018, 73 Cal.Rptr.2d 841 , 953 P.2d 1188 ( Landgate ); see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340 , 348, 106 S.Ct.

2017A takings claim that challenges the application of regulations to particular property is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." ( Williamson Co. Regional Planning v. Hamilton Bank (1985) 473 U.S. 172 , 186, 105 S.Ct. 3108 , 87 L.Ed.2d 126 ; accord Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006 , 1018, 73 Cal.Rptr.2d 841 , 953 P.2d 1188 ( Landgate ); see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340 , 348, 106 S.Ct.

2017A takings claim that challenges the application of regulations to particular property is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." ( Williamson Co. Regional Planning v. Hamilton Bank (1985) 473 U.S. 172 , 186, 105 S.Ct. 3108 , 87 L.Ed.2d 126 ; accord Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006 , 1018, 73 Cal.Rptr.2d 841 , 953 P.2d 1188 ( Landgate ); see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340 , 348, 106 S.Ct.

2017A takings claim that challenges the application of regulations to particular property is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." ( Williamson Co. Regional Planning v. Hamilton Bank (1985) 473 U.S. 172 , 186, 105 S.Ct. 3108 , 87 L.Ed.2d 126 ; accord Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006 , 1018, 73 Cal.Rptr.2d 841 , 953 P.2d 1188 ( Landgate ); see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340 , 348, 106 S.Ct.

2005“Primary among those factors are ‘the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.’ [Citation.] In addition, the ‘character of the governmental action’—for instance whether it amounts to a physical invasion or instead merely affects property interests through ‘some public program adjusting the benefits and burdens of economic life to promote the common good’—may be relevant in discerning whether a taking has occurred.” (Tingle v. Chevron, supra, 544 U.S. at p._[161 L.Ed.2d at

2005“Primary among those factors are ‘the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.’ [Citation.] In addition, the ‘character of the governmental action’—for instance whether it amounts to a physical invasion or instead merely affects property interests through ‘some public program adjusting the benefits and burdens of economic life to promote the common good’—may be relevant in discerning whether a taking has occurred.” (Tingle v. Chevron, supra, 544 U.S. at p._[161 L.Ed.2d at

2015Further, although we explained in Kavanau that past decisions have generally applied a ―confiscatory‖ analysis to challenges to price controls that are premised on either the takings clause or the due process clause — ―focusing on the regulation‘s impact and investors‘ ability to earn a fair return‖ (Kavanau, supra, 16 Cal.4th at p. 776 , citing Duquesne Light Co. v. Barasch (1989) 488 U.S. 299, 305 ; FCC v. Florida Power Corp. (1987) 480 U.S. 245, 250-254 ) — we also observed in Kavanau that several high court cases indicate that other takings analyses also apply to price controls ( Kavanau,

1999As the United States Supreme Court affirmed in Nollan , "a broad range of governmental purposes and regulations" are constitutionally valid under the takings clause. ( Nollan, supra, 483 U. S. at pp. 834-835, 107 S.Ct. 3141 .) One of the purposes that the court has explicitly recognized as valid after Nollan is that of "`prevent[ing] excessive and unreasonable rent increases' caused by the `growing shortage of and increasing demand for housing" within a municipality. ( Pennell, supra, 485 U.S. at p. 12 , 108 S.Ct. 849 .) SMB does not allege that the Santa Monica Rent Control Law fails to advan

1999This is so because the takings clause does not bar a governmental taking of private property. ( First Lutheran Church v. Los Angeles County, supra, 482 U.S. at p. 315 , 107 S.Ct. 2378 ; Williamson Planning Comm'n v. Hamilton Bank (1985) 473 U.S. 172, 195 , 105 S.Ct. 3108 ; Hodel v. Virginia Surface Mining & Reel.

1999This is so because the takings clause does not bar a governmental taking of private property. ( First Lutheran Church v. Los Angeles County, supra, 482 U.S. at p. 315 , 107 S.Ct. 2378 ; Williamson Planning Comm'n v. Hamilton Bank (1985) 473 U.S. 172, 195 , 105 S.Ct. 3108 ; Hodel v. Virginia Surface Mining & Reel.

2025As such, it implicates the “central concern” of Nollan and Dolan, thereby requiring a “ ‘per se [takings] approach.’ ” (See Koontz, supra, 570 U.S. at p. 614 , see id. at p. 613.) In other words, the TIM fee is a monetary exaction that must satisfy the “essential nexus” and “rough proportionality” requirements of Nollan and Dolan to withstand a constitutional challenge under the takings clause.

2025As in other unconstitutional conditions cases in which 4 The Koontz majority extended the scope of the takings clause in the special context of land-use exactions “to cases in which the government conditions a permit not on the transfer of real property, but instead on the payment or expenditure of money.” (Koontz, supra, 570 U.S. at p. 620 (dis. opn. of Kagan, J.); see id. at pp. 629-630 [noting that the majority extended Nollan and Dolan’s heightened scrutiny to all monetary exactions made by the government in the land-use permitting context].) As pointed out by Justice Kagan in her dissenti

2017Co. v. Deukmejian (1989) 48 Cal.3d 805 [ 258 Cal.Rptr. 161 , 111 P.2d 1247 ] (hereafter sometimes Calfami), [the Supreme Court] upheld, inter alia, Proposition 103’s provision requiring rate rollbacks.” (20th Century, supra, 8 Cal.4th at p. 240 .) The court “reviewed Proposition 103 against challenges under the United States and California Constitutions, including a claim that the rate rollback requirement provision was on its face invalid as confiscatory and arbitrary, discriminatory, or demonstrably irrelevant to legitimate policy in violation of the takings clause of the Fifth Amendment and

2017In such circumstances, the firm is not inaptly characterized as experiencing ‘deep financial hardship’ as a result of the rate. [¶] . . . [¶] “. . . [T]he law under the due process clause of article I, sections 7 and 15 of the California Constitution and the takings clause of article I, section 19 of that same instrument is in accord with the foregoing principles.” (20th Century, supra, 8 Cal.4th at pp. 292-297, fns. omitted.) *587 In the course of the foregoing discussion, our Supreme Court also included the following footnote: “In Guaranty Nat.

2014(See Loretto, supra, 458 U.S. at 435, fn. 12 [temporary physical invasions should be assessed by case-specific factual inquiry]; Tahoe-Sierra [Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302 ], 342 [ 152 L.Ed.2d 517 ] [(Tahoe-Sierra)] [duration of regulatory restriction is a factor for court to consider]; National Board of YMCA v. United States (1969) 395 U.S. 85, 93 [ 23 L.Ed.2d 117 ] [‘temporary, unplanned occupation’ of building by troops under exigent circumstances is not a taking].) “Also relevant to the takings inquiry is the degree to which the invasion

2006Such a rule would be an extravagant extension of [the physical takings doctrine established in] Loretto [v. Teleprompter Manhattan CATV Corp., supra, 458 U.S. 419 [ 73 L.Ed.2d 868 , 102 S.Ct. 3164 ]].” {Sperry, supra, at p. 62, fn. 9 .) Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 876 [ 50 Cal.Rptr.2d 242 , 911 P.2d 429 ] {Ehrlich), on which appellants rely, applied a takings analysis to a requirement that a landowner pay a one-time exaction fee as a condition for the development of real property.

2023Thus, “an essential prerequisite” to the assertion of a takings claim “is a 32 final and authoritative determination of the type and intensity of development legally permitted on the subject property.” (MacDonald, Sommer & Frates v. Yolo County, supra, 477 U.S. at p. 348 .) A “‘final and authoritative determination’” requires that the plaintiff “must first have submitted a development plan which was rejected, but also . . . the plaintiff must seek variances which would permit uses not allowed under the regulations.” (Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449 , 1453- 1454, over

2017A court cannot determine whether a regulation has gone "too far" unless it knows how far the regulation goes.' " ( Calprop Corp. v. City of San Diego (2000) 77 Cal.App.4th 582 , 590-591, 91 Cal.Rptr.2d 792 ( Calprop Corp. ).) In Calprop Corp. this court examined the threshold inquiry of finality in holding that the denial of a requested amendment to a community plan and a conditional use permit to develop a private landfill could not form the basis of a takings claim because it did not indicate what, if any, development would be permitted. ( Calprop Corp., supra , 77 Cal.App.4th at p. 598 , 91

2018Lainez, as the party asserting unconstitutionality, "bears a substantial burden" of establishing the claim. ( Eastern Enterprises v. Apfel (1998) 524 U.S. 498 , 523, 118 S.Ct. 2131 , 141 L.Ed.2d 451 ( Eastern Enterprises ).) Even if we were to consider the merits of his federal due process contention as a pure question of law presented by undisputed facts ( Hale v. Morgan (1978) 22 Cal.3d 388 , 394, 149 Cal.Rptr. 375 , 584 P.2d 512 ), we would conclude it to be without merit. 11 The takings clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment ( Chicago,

2018Lainez, as the party asserting unconstitutionality, "bears a substantial burden" of establishing the claim. ( Eastern Enterprises v. Apfel (1998) 524 U.S. 498 , 523, 118 S.Ct. 2131 , 141 L.Ed.2d 451 ( Eastern Enterprises ).) Even if we were to consider the merits of his federal due process contention as a pure question of law presented by undisputed facts ( Hale v. Morgan (1978) 22 Cal.3d 388 , 394, 149 Cal.Rptr. 375 , 584 P.2d 512 ), we would conclude it to be without merit. 11 The takings clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment ( Chicago,