Brost v. City of Santa Barbara, No. B246153 (Mar. 25, 2015) is an unpublished opinion, but (1) we hope the property owners ask the court to publish it, and (2) even if it remains unpublished, it is worth reading, because the court correctly applies both Williamson County's futility exception, and the "background principles" exception to a Lucas "wipeout" regulatory taking.
It's a longer opinion, but here's the short story: the plaintiffs' properties are in a part of the city that is an active landslide area. The city adopted an ordinance that prohibited new construction in the area. The plaintiffs' homes were destroyed in a wildfire (not a landslide, mind you), and the city refused to allow them to rebuild and refused to amend the ordinance. The trial court held that the total prohibition was a regulatory taking, and "[t]o avoid having to compensate plaintiffs for a permanent taking, the City amended the ordinance in April 2012 to allow reconstruction." Slip op. at 1. The trial court awarded just compensation for a temporary taking, attorneys fees and costs, and the city appealed.
The court of appeal rejected the city's contention that the inverse case was not ripe under Williamson County's "final decision" prong. The city argued that the property owners had not applied for permits to build. The court held that it would have been futile to do so. The outcome of any such application was "certain," held the court, because the ordinance was a ban on construction, and thus any application filed could not be processed at all, and there was obviously no appeal from the certain denial.
The court also rejected the city's argument that the (temporary) prohibition was a function of the city's power to prevent nuisance (a background principle under Lucas), and therefore it was not liable for a taking. The trial court concluded that the city failed to meet its burden of showing that there was a "reasonable probability" that significant harm would result to persons or property if the homes were rebuilt. The court of appeals held that the city didn't meet its burden of proof of showing that the risk of a future landslide was so great that the owners should not be able to rebuild, and, importantly, that it was not enough for the city to point to its legislative determination that rebuilding was a nuisance. There was "nothing inherently harmful or dangerous about plaintiffs' desire to use their properties as residences." Slip op.at 19. Other homes are located nearby. Besides, the city kind of admitted that rebuilding was okay, because it amended the ordinance to allow rebuilding.
As we said earlier, we hope there's a motion to publish and that the court grants it. This case should be citeable as precedent.
Brost v. City of Santa Barbara, No. B246153 (Cal. App. Mar. 25, 2015) (unpub.)
