Here’s another of the amicus briefs in Guggenheim v. City of Goleta, No. 10-1125. The brief of the National Association of Home Builders argues:
The Ninth Circuit in Guggenheim has rejected the widely held principle that regulatory takings claims run with the land for all subsequent title holders. As a result, the availability of the Fifth Amendment has, for all practical purposes, been eliminated for an entire class of property owners. The Guggenheim decision also creates adverse policy results for both property owners and local communities.
Massachusetts’ high court addressed this issue in Lopes v. City of Peabody, 629 N.E.2d 1312 (Mass. 1994). In Lopes, the court upheld the property owner’s regulatory takings case against an existing zoning ordinance even though the owner has purchased the land with full knowledge of environmental buffers that would limit the property’s development potential. Id. at 1313. The court explained that:
A rule that a purchaser of real estate takes subject to all existing zoning provisions without any right to challenge any of them . . . would in time lead to a crazy-quilt pattern of the enforceability of a zoning law intended to have uniform applicability.
Id. at 1315. The Ninth Circuit’s decision will lead to exactly this problem. Any property owner who purchased their land after enactment of a statute or regulation would result in zoning laws having different effects on different property owners depending solely upon when they purchased the land.
Brief at 12-13 (footnote omitted). More postings, as the briefs become available.