In a lengthy (70 page) opinion, the California Court of Appeals (Sixth District), in Shaw v. County of Santa Cruz, No. H031108 (filed Dec. 19, 2008, ordered published Jan. 16, 2009), held that the government’s denial of a ministerial permit did not amount to a regulatory taking.
The opinion sets forth a long factual and procedural history of the case, so we won’t repeat it here. The discussion of takings begins on page 34 of the slip opinion, with a good short summary of regulatory takings law, and the various situations when the regulation of land will be deemed to have gone “too far” and requires the payment of just compensation. See slip op. at 34-39. Footnote 39 is particularly interesting, as it correctly notes that Lingle did not wipe out the Agins substantially advance test, but merely relocated it to due process:
The court’s holding [in Lingle] is grounded in the concept that for purposes of Fifth Amendment takings jurisprudence, the legitimacy of the government’s action is assumed. What is at issue is the government’s obligation to compensate the landowner for the valid action. (Lingle, supra, 544 U.S. at pp. 543-545.) This analysis is distinct from Fourteenth Amendment due-process considerations in the application of which a court may properly probe whether a regulation substantially advances a legitimate government purpose or whether a regulation is arbitrary or unreasonable. (Id. at pp. 540-544 [formula prescribes an inquiry sounding in due process, not takings, because the failure of a regulation to accomplish a stated or obvious objective renders the regulation arbitrary or irrational so as to violate due process].)
(I recently wrote about the substantially-advance-as-due-process issue in this article.)
The court struggled with what to do with Landgate, Inc. v. California Coastal Comm’n, 17 Cal. 4th 1006, 73 Cal. Rptr. 841 (1998), the case in which the California Supreme Court announced the rule — apparently tracking Agins — that governmental authority not advancing a valid objective would amount to a taking. The Shaw court noted that “there are no California appellate cases that expressly hold that Landgate did not survive Lingle,” slip op. at 41. The court noted “[b]ecause we conclude that there was no taking under any theory, we need not and do not decide whether Lingle undercuts Landgate.” Slip op. at 55, n.47. But, you say, Landgate relied upon an Agins-like takings analysis, and Lingle relocated that test to due process, so isn’t the Shaw court just being coy in that footnote? California courts of appeals — like all intermediate courts — cannot overrule a California Supreme Court decision, but c’mon, Lingle wiped out the Landgate rule, right?
Maybe not. Recall that the U.S. Supreme Court’s decisions on the Fifth and Fourteenth Amendments only set the “floor” below which no state court or state constitution may go, but do not — as Kelo reminded — prohibit the states from recognizing greater protections (or differering legal standards) for takings under state constitutions. So even though Lingle held that the substantially advance test is no longer a test for regulatory takings under the U.S. Constitution’s takings clause, there is nothing prohibiting the California courts from continuing to adhere to the Landgate rule and hold that the same inquiry is entirely legitimate under the California constitution. Although the California Supreme Court has held that the state takings clause is construed the same way as the federal takings clause, until such time as the California Supreme Court revisits Landgate and conforms it to Lingle, it remains the rule of decision that the lower courts should apply. The Shaw court did just that. See slip op. at 55-59.
The Shaw opinion also discusses substantive due process in the land use context starting at page 42 of the opinion, contrasting it with regulatory takings, and going through some of the recent cases such as Action Apartment, North Pacifica, and Crown Point. Check it out.
Procedural note – read footnote 52 on page 69 of the slip opinion for a clarification of the overused term “waiver,” and the distinction between waiver and “forfeiture.” It has always bothered me that lawyers and courts use “waiver” when they really mean “forfeiture,” and it is nice to see a court recognize the distinction.