SMW Regulatory Takings Published Decisions

Shute, Mihaly & Weinberger LLP has extensive experience in regulatory takings litigation. Takings cases for which the firm or its attorneys have been lead counsel include:

San Remo Hotel v. City and County of San Francisco, 545 U.S. 232 (2005).* The firm served as lead counsel to the City in this case in the United States Supreme Court. This case unsuccessfully challenged the constitutionality of the City of San Francisco’s hotel conversion ordinance and also established a broader rule requiring takings claims against local government agencies to be litigated in state court, thus promoting local control of land use. The case also involved a prior decision San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095 (9th Cir. 1998) in a related case and a companion case that was litigated through the California appellate courts. San Remo Hotel v. City & County of San Francisco, 27 Cal.4th 643 (2002). The California Supreme Court decision established standards for development impact fees and other types of exactions.

Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002). The firm won a major victory on behalf of the Tahoe Regional Planning Agency (TRPA) in a regulatory takings case brought by over 400 hundred property owners. The Supreme Court’s landmark decision held that temporary planning moratoria do not constitute a per se taking of property, and contains some of the Court’s strongest statements to date recognizing the importance of careful land use planning and regulation.

Agins v. Tiburon, 447 U.S. 255 (1980). The firm represented the Town of Tiburon in litigation challenging the Town’s downzoning of property for the purpose of open space preservation. The firm defended the Town from the trial court and argued the case in the Supreme Court.

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064 (9th Cir. 2003). The firm successfully defended TRPA in another challenge to the Agency’s 1987 Regional Plan. This action, brought by Tahoe-Sierra Preservation Council and over 250 individual members of TSPC, alleged that TRPA’s implementation of the 1987 Plan effected an unconstitutional taking of their property and violated the Equal Protection Clause of the U.S. Constitution.

Golden Gate Hotel Ass’n v. City & County of San Francisco, 18 F.3d 1482 (9th Cir. 1996), aff’d, 76 F.3d 386 (9th Cir. 1996).* The court rejected a takings challenge to San Francisco’s Residential Hotel Conversion Ordinance.

Commercial Builders v. City of Sacramento, 941 F.2d 872 (9th Cir. 1991), cert. denied, 504 U.S. 931 (1992). The firm successfully defended the City of Sacramento and the Sacramento Housing and Redevelopment Authority in litigation challenging the City's low-income housing fee on commercial development.

De Anza v. County of Santa Cruz, 936 F.2d 1084 (9th Cir. 1991). The firm successfully defended the County of Santa Cruz against an inverse condemnation action challenging the County's mobile home rent control laws.

St. Clair v. City of Chico, 880 F.2d 199 (9th Cir.), cert. denied, 493 U.S. 993 (1989). The firm successfully defended Butte County in an action filed by a developer of a large residential subdivision against the County and the City of Chico claiming their alleged delay in approving sewage treatment facilities for the project resulted in the developer's bankruptcy and loss of the property.

Barancik v. County of Marin, 872 F.2d 834 (9th Cir. 1988), cert. denied, 493 U.S. 894 (1989). The firm successfully defended the County of Marin against takings and substantive due process challenges to the transfer of development of rights program within its zoning regulations for ranching and agricultural areas.

Lake Tahoe Watercraft Recreation Ass'n v. TRPA, 24 F. Supp. 2d 1062 (E.D. Cal. 1998). The firm successfully defended the Tahoe Regional Planning Agency against a takings claim and other constitutional challenges to TRPA's regulation prohibiting the use of certain polluting watercraft engines. The firm negotiated a favorable settlement after winning dismissal of all constitutional claims.

Schulz v. Milne, 849 F.Supp. 708 (N.D. Cal. 1994).* The fedral District Court and in the Ninth Circuit rejected a takings challenge to San Francisco’s establishment of neighborhood design review boards.

Loewenstein v. City of Lafayette, 103 Cal.App.4th 718 (2002). Shute, Mihaly & Weinberger successfully represented the City of Lafayette in the City’s appeal of a trial court ruling awarding substantial takings damages. The case arose out of the City’s denial of a lot line adjustment application, based on a finding that it would have violated the conditions of an existing subdivision. The California Court of Appeal unanimously reversed the trial court’s ruling for the landowners on their takings claim.

Cwynar v. City and County of San Francisco, 90 Cal.App.4th 637 (2001).* This case involved a physical takings challenge to a San Francisco ordinance protecting elderly and catastrophically ill tenants from eviction. On remand, the trial court preserved the ordinance and avoided the eviction of vulnerable tenants.

Lambert v. City and County of San Francisco, 57 Cal.App.4th 1172 (1997), review granted, 71 Cal.Rptr.2d 215 (1998), review dismissed, 87 Cal.Rptr.2d 412 (1999), cert. denied, 529 U.S. 1045 (2000) (opinion dissenting from denial of cert. by Justice Scalia, joined by Kennedy and Thomas, JJ.).* The court upheld San Francisco’s residential hotel conversion ordinance against a takings challenge.

Toigo v. Town of Ross, 70 Cal.App.4th 309 (1998). The firm successfully represented the Town in an action challenging the denial of a subdivision map application.

Guinnane v. San Francisco City Planning Comm., 209 Cal.App.3d 732 (1989).* In a landmark case affirming the broad scope of the local police power to regulate land use, the court upheld the City and County of San Francisco’ restrictions on residential development to preserve neighborhood character.

Terminals Equipment Co. v. City and County of San Francisco, 221 Cal.App.3d 234 (1990).* The court here rejected a takings challenge to the disapproval of a development application.

Smith v. City & County of San Francisco, 225 Cal.App.3d 38 (1990).* The court rejected a takings challenge to the City’s procedure for processing development applications.

Leavenworth Properties v. City & County of San Francisco, 189 Cal.App.3d 986 (1987).* The court rejected constitutional challenges to San Francisco’s Condominium Conversion Ordinance.

City & County of San Francisco v. Eller Outdoor Adver., 192 Cal.App.3d 643 (1987).* The court upheld San Francisco’s Billboard Ordinance against a takings challenge and required the removal of 45 billboards from Market Street in San Francisco.

Guinnane v. City & County of San Francisco, 197 Cal.App.3d 256 (1985).* The Court dismissed a regulatory takings challenge to the requirement that development applications undergo environmental review.

In addition to the above cases, the firm has represented public agencies in many regulatory takings cases in state and federal trial and appellate courts where the matter did not result in a published decision.

The firm has appeared numerous times representing amici curiae (friends of the court) on behalf of local governments and agencies in significant cases in the United States and California Supreme Courts, as well as in appellate courts:

Lingle v. Chevron, U.S.A., 5445 U.S. 528 (2005).* In a landmark case, the U.S. Supreme Court held that regulation is not subject to a means-ends test under the Just Compensation Clause and limited liability for regulatory takings to extreme regulations that destroy virtually all property value. The amicus curiae brief was filed on behalf of the League of California Cities in support of the State of Hawaii.

Brown v. Washington Legal Foundation, 538 U.S. 216 (2003).* In a takings challenge to the State of Washington’s program requiring the use of interest on lawyer trust accounts (IOLTA) to provide legal aid, the Supreme Court upheld the program, preserving hundreds of millions of dollars in IOLTA funds for legal services for the poor.

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1998).* In a takings challenge to the City of Monterey’s regulation of a housing development on the California coast, the Supreme Court decided that juries are available for takings claims in federal court and upheld a jury award of damages against the City. The court also held, however, that the means-ends test for regulation under the Just Compensation Clause was not appropriate in that case. The amicus brief in this case was filed on behalf of numerous California cities and counties.

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997). The firm appeared on behalf of amicus curiae League to Save Lake Tahoe in a takings challenge to TJPA’s restriction of development of environmentally sensitive parcels in the Lake Tahoe Basin.

Yee v. City of Escondido, 503 U.S. 519 (1992). The firm appeared on behalf of national and statewide mobile-home owner interest groups as amici curiae in support of the City of Escondido in, where the U.S. Supreme Court upheld a rent control ordinance that also limited the ability of a mobile-home park owner to terminate a tenancy. Ruling for the City and amici, the Court held that the contract between a mobile-home owner and a park owner voluntarily establishes a landlord-tenant relationship such that the ordinance did not require the park owner to submit to a physical occupation of his land by the tenant.

Nollan v. California Coastal Commission, 483 U.S. 825 (1987). The firm appeared on behalf of numerous California cities and counties as amici curiae in support of the California Coastal Commission in a landmark U.S. Supreme Court case holding that where an individual property owner is forced to dedicate one part of her property in exchange for the right to develop another part, the government must show that the owner’s proposed development causes or exacerbates a community problem, and that the land dedication will solve this problem.

Equity Lifestyle Properties v. County of San Luis Obispo, No. 05-55406 (9th Cir. 2007). The firm appeared on behalf of the League of California Cities and the California State Association of Counties as amici curiae in support of the County of San Luis Obispo in a petition for rehearing in the Ninth Circuit Court of Appeals in a case involving a takings challenge to a mobile-home rent control ordinance.

Travis v. County of Santa Cruz, 33 Cal.4th 757 (2004).* The case involved the statute of limitations for facial and as-applied takings challenges to land use controls. An attorney of the firm filed an amicus brief on behalf of the League of Cities in the California Supreme Court and shared oral argument.

Landgate v. Cal. Coastal Comm., 17 Cal.4th 1006 (1998).* In this case, a developer contended that the California Coastal Commission effected a regulatory taking of its property where the Commission erroneously asserted jurisdiction over a subdivision of the property. An amicus brief was filed on behalf of cities and counties in support of the Coastal Commission, which prevailed against the takings claim.

Kavanau v. Santa Monica Rent Control Board, 16 Cal.4th 761 (1997).* In a takings and due process challenge to a rent control ordinance, the Supreme Court adopted the system for landlord’s rights to recover rents proposed by the amicus brief.

Ehrlich v. City of Culver City, 12 Cal.4th 854 (1996).* In a case involving a takings challenge to a development impact fee, an amicus brief was filed on behalf of numerous California cities and counties.

Hensler v. City of Glendale, 8 Cal.4th 1 (1994). The firm appeared on behalf of numerous California cities and counties as amici curiae in support of the defendant City in, in which the California Supreme Court held that a property owner challenging a decision made under the Subdivision Map Act must exhaust administrative and judicial remedies before bringing a takings claim, and any such claim is governed by the Subdivision Map Act’s 90-day statute of limitations.

City of West Hollywood v. Beverly Towers, Inc., 52 Cal.3d 1184 (1991).* In a case involving a constitutional challenge to condominium conversion restrictions, an amicus brief was filed on behalf of the City and County of San Francisco.

Milagra Ridge Partners, Ltd. v. City of Pacifica, 62 Cal.App.4th 108 (1998). The firm appeared on behalf of numerous California cities and counties as amici curiae in support of the defendant City, in which the Court of Appeal held that a property owner’s application to amend the City’s general plan did not excuse the owner from his duty to apply for a variance in order to present a ripe takings claim.

County of Riverside v. Superior Court, Fourth Appellate District Civil Case No. E024277 (1999). The firm appeared on behalf of the California State Association of Counties and numerous California cities as amici curiae in support of the defendant County in the appeal of, seeking reversal of the trial court’s ruling that an untimely and procedurally flawed appeal of a Planning Commission’s requirement that a developer build an emergency access road as a condition of approval for a subdivision map was ripe and not time barred.

Palmer v. City of Ojai, 178 Cal.App.3d 280 (1986).* This appeal involved a takings challenge based on the Permit Streamlining Act.

*An asterisk following a case citation indicates that a partner with the firm appeared in the case while a Deputy City Attorney in the Office of the San Francisco City Attorney.