Academic journal article Environmental Law

The Taking Issue in the Ninth Circuit after Lucas

Academic journal article Environmental Law

The Taking Issue in the Ninth Circuit after Lucas

Article excerpt

I. Introduction

In 1993, the Ninth Circuit Court of Appeals decided a number of Fifth Amendment(1) "taking" cases. In most, the party asserting the claim did not prevail, calling to mind the observation that a great deal of attention is lavished on a remedy that rarely succeeds.(2)

In the first year after Lucas v. South Carolina Coastal Council,(3) the Ninth Circuit's reported decisions(4) indicate that Lucas will affect only a narrow band of cases. First, there are very few cases in which the action of government eliminates all reasonable use of property. Second, there are even fewer cases where a property owner is precluded from seeking a variance or an exception from the regulation which otherwise effects the taking.(5)

Beyond these general considerations, the Ninth Circuit's decisions carefully adhere to settled precedent which bars the exercise of federal jurisdiction over cases that clearly belong in state court. The doctrines of stare decisis, ripeness, and abstention commit the court to the position that litigants generally have a forum for taking claims in state court and they must use it.

The resolution of such claims by the Ninth Circuit follows an established structure. This structure reveals both symmetry in principles and high predictability that is extremely important for practitioners who need to provide legal advice with confidence.

II. The Taking Issue

A. Signs and Nonconforming Uses:

Outdoor Systems, Inc. v. City of Mesa(6)

In Outdoor Systems, the Ninth Circuit upheld the right of cities to require the removal of non-conforming billboards as a condition for the granting of a building or occupancy permit.(7) When the underlying use of a parcel is changed, there is a legitimate state interest in eliminating non-conforming uses, an interest that meets the "essential nexus" requirement of Nollan v. South Carolina Coastal Comm'n.(8) Such a precondition to a permit is not a per se taking under Lucas because the owner still retains economic use of the property (as shown by the desire for a commercial development permit in the first place).(9)

In a complex opinion addressing the regulation of signs and nonconforming uses, the Ninth Circuit consolidated two lower court decisions. In the first, a district court held that the city of Mesa's ordinance effected a taking.(10) The Mesa ordinance mandated the removal of billboards from property requiring a city issued certificate of occupancy. The city refused to issue a developer a building permit for a sports complex until the developer removed a billboard on the property. The developer and a sign company, Outdoor Systems, challenged the ordinance by bringing Civil Rights Act(11) claims alleging First, Fifth and Fourteenth. Amendment violations. The district court held the city could not constitutionally require the removal of a nonconforming sign as a condition for granting a building permit.(12)

In the second case, a district court upheld a city of Tucson ordinance that prohibited billboards on developed property and required their removal before issuing a certificate of occupancy for building on an undeveloped parcel.(13) Whiteco, a company that constructs billboards, unsuccessfully challenged the ordinance on the same grounds as Outdoor Systems had attacked the Mesa ordinance. (14)

On appeal, the plaintiffs, Whiteco and Outdoor Systems, argued that even if the cities' interests in restricting or eliminating signs was legitimate, the ordinances caused a taking without just compensation.(15) Whiteco and Outdoor Systems based their challenge on the "essential nexus" requirement of Nollan v. California Coastal Commission,(16) which requires that a regulation must "substantially advance" a legitimate state interest.(17) The Nollan Court held that a regulation does not advance the state's interest if no nexus exists between the effect of the regulation and the government interest sought to be advanced. …

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