A longer one from the California Court of Appeal, but unfortunately, we don't have the time to digest it in detail. But you really should read Pacific Shores Property Onwers Ass'n v. Dep't of Fish and Wildlife, No. C070301 (Jan. 20, 2016), in which the court upheld a ruling that the Department of Fish and Wildlife inversely condemned the plaintiffs' property by a physical taking, when it allowed their land to be flooded.
The interesting part of this decision is the Department's purpose in allowing the flooding, environmental protection. Local government had historically provided some flood protection to these properties by "breaching" a sandbar when the water reached a certain level. When the Department took over that function, it decreased the level of protection, and although it required the water to reach a higher level before breaching, it didn't eliminate it completely. The Department argued that it could not be liable in inverse condemnation, because the land historically was flood prone, and the only circumstance in which it could be liable is if its "conduct resulted in more water flooding plaintiffs' properties than would have flowed onto their lands without any flood protection." Slip op. at 32. In other words, some protection is better than nothing, you ingrate property owners!
The court rejected that argument, concluding that the Department was strictly liable for its intentional conduct to flood the plaintiffs' land:
This is not a case of an agency simply altering risks to land historically subject to flooding should a flood control project fail. (See Bunch II, supra, 15 Cal.4th at p. 450.) This is a case where the agency intentionally ensures private property will be flooded by reducing the level of flood protection that had been historically provided, and doing so for purposes other than flood control. This intention to flood plaintiffs’ properties resembles in many respects the types of projects foreseen by the court opinions discussed above where agencies intentionally divert water to a location to protect other property.
Slip op. at 37.
The court also rejected the Department's argument that its raising of the requirements was done as part of a flood control project (where the reasonableness standard applies, not strict liability). The court held that the reason the Department did what it did was to protect the environment and wetlands, not to prevent floods. Cheeky argument alert: we flooded your land to protect against floods.
The court concluded that the Department now has a flowage easement over the plaintiffs' properties. You broke it, you bought it.
The property owners also appealed the the trial court's rejection of their claim that the California Coastal Commission's arguably illegal exercise of regulatory authority over their lands was a regulatory taking. The court of appeals affirmed, holding that the owners should have sought a writ of administrative mandamus and challenged the Commission's exercise of jurisdiction as unlawful.
Finally, the court of appeal upheld the trial court's determination that the plaintiffs' attorneys' fee award was limited to the amounts in their contingency agreement, and could not be calculated on an hourly basis. The difference was pretty big: $45,800 in fees under the contingency agreement versus $556,210 under a straight lodestar calculation.
Pacific Shores Property Onwers Ass'n v. Dep't of Fish and Wildlife, No. C070201 (Cal. App. Jan. 2...
