Check out this recently-filed cert petition, which asks the Court to review a California Court of Appeal decision about exactions.
It's a somewhat odd situation: the county issued a building permit, but conditioned it (yes, the county tried to put a condition in a ministerial building permit!) on the property owners recording a deed restriction that they will forever preserve the natural vegetation on a portion of the lot. "Visually important ridgelines" and all that.
Land use types will immediately understand our puzzlement. Building permits are the classic ministerial ("shall issue") development permits. Meaning that the issuing official has no discretion to deny a permit if the applicant meets the straightforward requirements of the building code, and certainly doesn't have the authority to grant a permit with conditions. That's way outside the building department's authority, and the applicant should be able to get a court to issue a writ of mandamus.
Well, that's what happened, and eventually, the court agreed, and invalidated the condition and struck it. Score one for the owner. The owner's lawsuit also included a takings claim, and the court concluded that the condition violated the county's own ordinances, and that the county's attempt to impose a conservation easement in exchange for a permit was an exaction that didn't meet the Nollan/Dolan nexus and proportionality requirements. Things were really looking up!
Not quite. The court also held that the owners were not owed just compensation because the five years they were in limbo due to the county's illegal actions were just plain old "normal planning delay," and thus there had been no taking. (If this reminds you of the infamous Landgate case you are not alone.)
The owners appealed the question of whether this was planning delay. If the court of appeals agreed and concluded this was a taking and reversed, there was no barrier to the trial court determining compensation on remand. But the court of appeals blew off the issue presented on appeal, and instead held that this was not an "exaction" (an issue the county had not appealed).
Relying on the California Supreme Court's CBIA case, the court of appeal concluded the county's demand was not an exaction subject to Nollan/Dolan because it didn't require the owners to covey some property interest to the county. You might justifiably ask whether the fact that it conditioned the BP on the owners recording a deed restriction kinda qualifies as conveyance of an interest, because your flashbacks to Property I in law school tell you that these things "run with the land" and the like - but what do you know?
Denial of discretionary review by the California Supremes, so the cert petition followed. The petition doesn't suggest there's some unresolved lower court split, but that this one is so darned obvious, the Court should GVR it. It's a deed restriction. The condition is tantamount to a conservation easement. One might even say that being required to maintain trees and plants on your land (even if you own the trees and plants) goes against some very basic notions of what it means to own private property.
The Question Presented:
Does an exaction occur when a County, in violation of its own ordinances, refuses to issue a building permit it previously approved for a single-family residence unless the applicants consent to record an ad hoc deed restriction on their lot which would conserve all trees and vegetation in a specified area?
We'll follow along. Here's the e-docket if you want to do so on the Court's site.
Petition for Writ of Certiorari, Erickson v. County of Nevada, No. 21-112 (July 22, 2021)
