Cal. Court of Appeals: Development Moratorium a Taking Under Lucas

The California Court of Appeals, Second District (Los Angeles) today struck down a municipal moratorium on development, which in some cases prevented landowners from developing their properties for 30 years:

We conclude that the resolution, by implementing the moratorium and continuing to prevent plaintiffs from building on their properties, “deprive[d] [plaintiffs’] land of all economically beneficial use.” (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1027 [112 S. Ct. 2886, 2899] (Lucas).) Consequently, the city had the burden at trial of proving that the construction ban was justified by “background principles of the State’s law of property and nuisance.” (Id. at p. 1029 [112 S. Ct. at p. 2900]; see id. at pp. 1031–1032 [112 S.Ct. at pp. 2901–2902].)

The city failed to meet its burden of justifying the moratorium — as applied to plaintiffs’ lots — through evidence showing a reasonable probability of personal injury or property damage other than the possibility of damage to plaintiffs’ desired homes in the distant future — damage that could be repaired. A permanent ban on home construction cannot be based merely on a fear of personal injury or significant property damage. Because the city did not carry its burden in light of the evidence and principles of state nuisance and property law, we reverse the judgment and remand for proceedings to determine an appropriate remedy.

Monks v. City of Rancho Palos Verdes, No. B201280 (Oct. 1, 2008).  More to follow after a chance to digest the opinion.