Takings Part 2 – Remedies
First English Evangelical Lutheran Church v County of Los Angeles,107 S.Ct. 2378 Time is money!
First English is relevant for two primary reasons; • It can be seen as Agins II and • It begs the question of appropriate remedy if a regulatory taking had occurred. • This too is a Pacific Legal Foundation case.
Recall Agins . . . • Agins maintained that the City of Tiburon had taken their property through the adoption of its comprehensive plan • If all development must be consistent with the plan, why then can’t a plan effect a taking? • And they should be paid just compensation for their property • Paid, as in dollars!
In Agins Powell wrote: • “Because no taking has occurred, we need not consider whether a State may limit the remedies available to a person whose land has been taken without just compensation.” • The question of appropriate remedy remained for First English
THE FACTS • The church bought 21 acres of land along the Middle Fork of Mill Creek, in the hills surrounding Los Angeles. • They bought in 1957. • 12 acres are flat and have a camp, Lutherglen – a camp for children. • A 1977 fire denuded the ground cover, creating a serious flood hazard. • 1978, flood occurred, ruining Lutherglen, even though the main building was still standing. • Los Angeles enacted a moratorium in Jan 1979.
County’s moratorium was for the purpose of delaying development/reconstruction until after they had prepared a revised flood protection plan. • Church filed suit, asking; • Damages for County’s upstream actions and • $20,000,000 for inverse condemnation of the property due to a denial of all beneficial use.
Based on California Supreme Court’s Agins decision, the lower court struck the inverse condemnation claim. • Recall, California Supremes said: • that mandamus and declaratory judgment are the only remedies available to a landowner alleging a regulatory taking.
What is the remedy for a taking? • It would be “constitutionally insufficient” • “[if] the Los Angeles County ordinance has denied appellant all the use of its property for a considerable period of years, • and we hold that invalidation of the ordinance without payment of fair value for the use of the property during that period of time” is the appropriate remedy.”
The Constitution establishes the remedy Just Compensation • Which typically requires payment of fair market value.
Dissent by Stevens • “One thing is certain. The Court’s decision today will generate a great deal of litigation. Most of it, I believe, will be unproductive.”
On Remand . . . • In First English Evangelical Lutheran Church v Los Angeles, 259 Cal. Rptr. 893, (Cal. App. 1989), • court found that the stringent interim and permanent limitations on building in the floodplain were justified by the circumstances.
Since First English in 1987, there have been only a handful – 5 or 6 – awards of damages for temporary takings. • A Florida case, Shadock v Monroe County, found Monroe County liable for an 8.25 year period on non-use of a property in Key Largo. • Prior to the damage phase of the trial, the case settled in Jan. ’03 with a “substantial” payment to the property owner.