If you are a fan of Penn Central's "investment-backed expectations" factor, or the "notice" defense thought to be put to rest in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this is your week.
Earlier this week, we posted our amicus brief in Guggenheim v. City of Goleta, No. 10-1125, which argued the Ninth Circuit got it wrong when it held the fact that the property owners purchased their property subject to rent control was "fatal" to their takings claim. According to the Ninth Circuit's en banc majority, the Guggenheims could not have investment-backed expectations because the rent control ordinance predated their purchase. Yesterday, we posted the city's BIO, which asserted the Ninth Circuit didn't "flout[the Supreme] Court's decision in Palazzolo v. Rhode Island, 533 U.S. 606 (2001)."
Here's the latest, the amicus brief of Equity Lifestyle Partners supporting the Petitioner. ELS owns hundreds of mobile home parks in 30 states, and is most well know to those of us in the takings world as the plaintiff in a successful federal court challenge to the mobile home rent control law in another California city. See MHC Financing, Ltd. v City of San Rafael, No. C 00 03785, 2008 WL 440282 (N.D. Cal. Jan. 29, 2008). The brief argues:
"[W]hile property may be regulated to a certain extent, if [the] regulation goes too far[,] it will be recognized as a taking." Lingle v. Chevron USA, Inc., 544 U.S. 528, 537 (2005) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (Holmes, J.)). As this Court confirmed in Lingle, to determine if a regulation goes too far, a court should balance three factually-intensive factors that were identified in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978): the regulation's economic impact, its interference with investment-backed expectations, and its character. In addition, in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), the Court held that it is erroneous to find a lack of substantial interference with investment-backed expectations just because the property owner acquired the property after the challenged regulation was in place.The Ninth Circuit's decision in this case ignored all of these principles. First, it directly contravened Palazzolo by holding that, in the context of a facial Penn Central claim, a regulation that was enacted before a purchase of property can never interfere with the property owner's reasonable expectations. A more direct conflict with a decision of this Court is difficult to imagine.Second, the Ninth Circuit decision also is fundamentally inconsistent with Penn Central's rules that a court must weigh all three Penn Central factors. The majority opinion did violence to the very purpose of the Penn Central multi-factor balancing test by ruling that the investment-backed expectation factor alone is sufficient to foreclose a facial Penn Central claim and that it is not necessary even to consider or balance the other two established
Penn Central factors.
Brief at 2-3. Download the brief here. We'll post other briefs on our resource page when they become available.