San Diego County asks Supreme Court to depublish property rights victory


Author:  Luke A. Wake

Recently I reported that we had helped secure a victory for property rights in Howard v. San Diego. In that case, we filed an amicus brief on behalf of two property owners who were being forced to seek an amendment to their County's general plan before litigating their takings claim. We were pleased that the Court agreed with our argument that landowners should not be forced to resort to the political process before having their day in court to challenge a taking of their property.

The decision was originally unpublished; however, we asked the court to publish the decision so that property owners, and local governments alike, will have guidance on the question of when a takings claim may be advanced in court. Our request was granted, and the decision was published, and can now be relied upon as precedent; however, the County is now asking the Supreme Court of California to depublish the decision because they are concerned "the decision could adversly impact the County's ability to process land use approvals." We will be submitting a letter brief in opposition soon.

This case is important because it makes clear that government regulators cannot evade liability for the taking of private property by requiring landowners to resort to an endless cycle of administrative and legislative procedures. We'll keep you posted on what happens.