Redln Enterprises v. City of San Diego CA4/1 (2013) · DecisionDepot
Redln Enterprises v. City of San Diego CA4/1
California Court of Appeal Apr 15, 2013 No. D060164Unpublished
Filed 4/15/13Redln Enterprises v. City of San Diego CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA
REDLN ENTERPRISES, INC. et al., D060164
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2009-00085820- CU-EI-CTL) CITY OF SAN DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
Taylor , Judge. Affirmed.
Appellants Redln Enterprises, Inc. and Daniel Kullberg, the president and majority
shareholder of Redln (collectively Redln), appeal the successful demurrer of respondents
City of San Diego (City) and William Zounes, a development project manager of the City
(Zounes), to Redln's second amended complaint (SAC). Redln contends the court erred
when it found the SAC did not state facts sufficient to support claims for inverse
condemnation or takings (first cause of action) and for violation of civil rights pursuant to
title 42 United States Code section 1983 (section 1983) for regulatory taking (second
cause of action).1 Redln also contends the court abused its discretion by not granting
Redln leave to amend the SAC to state a new cause of action for selective enforcement.
Affirmed.
BACKGROUND
Because this is an appeal following a successful demurrer, we accept as true all
facts properly pled in Redln's SAC, and also incorporate any facts judicially noticed.2
(Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 200.)
The SAC alleges that Redln, doing business as "All in One," obtained a business
license from the City in 1997 to sell used cars wholesale to dealers on property generally
located at 943-949A Heritage Road, San Diego (the property). (SAC, ¶¶ 10, 12.) Redln
that same year received the required approval from the Department of Motor Vehicles
(DMV) to operate this business.
The SAC further alleges that in July 1999, doing business as "Vehicle Storage
Auction Pool" (VSAP), Redln obtained written approval from the City to operate a
1 We note from the record that Redln's complaint asserts four causes of action, including two additional causes of action based on section 1983 (e.g., third cause of action for unlawful policy/custom and fourth cause of action for failure to train employees). On appeal, however, Redln challenges only the demurrer to its first and second causes of action.
2 Respondents' unopposed request for judicial notice of various sections of the San Diego Municipal Code (SDMC) is granted. 2
vehicle wholesale auction business on the property. (SAC, ¶¶ 13-15.) The following
month, the DMV issued Redln an occupational vehicle dealer's wholesale license.
In 2005, personnel from the County of San Diego (County) suggested Redln
submit a bid to provide auction services for the County. Redln, in turn, contacted the
City and explained it needed different licenses than the ones it then possessed in order to
sell equipment and vehicles directly to the public, as contemplated under a proposed
agreement with the County. Redln was referred to Zounes.
The SAC alleges that in February 2006, Zounes responded to Redln on behalf of
the City. Zounes advised Redln that its then present wholesale auction activity conducted
by VSAP was not permitted by the zoning for the property as set forth in section
103.1103 of the SDMC and that Redln needed to obtain a conditional use permit (CUP)
to operate that business. (SAC, ¶ 17.) Zounes also advised Redln that due to "sensitive
vegetation" on portions of the property, Redln also was required to obtain a site
development permit (SDP). In March 2006, the City's zoning project officer notified
Redln that an auction facility was not a permitted use on the property because "it was not
'wholesaling.'" (SAC, ¶ 19.) Redln disputed it was required to obtain either permit.
Beginning in May 2006, Redln ceased conducting wholesale auctions on the
property. (SAC, ¶ 20.) Redln "thereafter transported the vehicles it periodically had for
sale" to another wholesale auction house located nearby. (Ibid., italics added.) Redln
continued to sell used cars wholesale to dealers from the property.
3
The SAC alleges that in October 2007, City code enforcement coordinator Melody
Negrete served Redln with a civil penalty and notice order (civil penalty order) "stating
that [Redln] required a CUP and SDP . . . to operate the auto auction business, that the
[p]roperty was no longer being used as an auto dismantling facility, and that the prior
CUP had 'expired.'" (SAC, ¶ 22.) The civil penalty order also cited Redln for violating
various provisions of the SDMC for unlawfully erecting and using buildings and
structures without the proper permit and inspection approvals. The civil penalty order
gave Redln until November 9, 2007 to correct the violations.
The appeal of the civil penalty order commenced in January 2008 before
administrative law judge Nancy Beardsley (ALJ). After several days of testimony, the
ALJ on May 10, 2008 issued a 19-page administrative enforcement order (enforcement
order) ruling that Redln did not need a CUP but that it did need an SDP because
according to the ALJ, Redln began operating its auction business after the new land
development code requiring an SDP became effective on January 1, 2000. The ALJ also
ruled that Redln could stay on the property if it applied for an SDP by no later than
August 31, 2008 and that until the SDP application was deemed complete and was
approved by the City, Redln was not entitled to conduct any automobile auctions (as
opposed to sales) from the property.
Alternatively, if Redln did not apply for an SDP within the appropriate time frame,
the ALJ ruled Redln was to cease all business activities on, and clear and vacate all
business operations from, the property.
4
Following the enforcement order, Redln sought clarification regarding whether All
in One could continue its business operations on the property while VSAP applied for an
SDP. The SAC alleges that the ALJ referred the matter to Zounes, who responded by
letter on August 5, 2008 that Redln could not conduct any "development" on the
property, as defined under the SDMC, until an SDP was approved.3 (SAC, ¶ 31; Exh. 4
to SAC.) Redln alleged in the SAC on information and belief that SDP compliance could
have taken up to two years and cost several hundred thousand dollars. As set forth in its
SAC, based on Zounes's response Redln determined it could not conduct any business on
the property while it sought an SDP.
Rather than move forward with an SDP application, Redln filed a writ of
mandamus in the Superior Court, County of San Diego (case No. 37-2008-00089656-
CU-WM-CTL; writ petition) and discontinued business operations on the property. The
SAC alleges that the court subsequently granted Redln's motion to augment the
administrative record to include auction receipts that predated January 1, 2000 and
remanded the matter to the administrative hearing officer with instructions to hold a
3 We note that in his August 5, 2008 letter stating Redln could not develop the property due to the presence of environmentally sensitive lands, Zounes referred to section 111.0103 of the SDMC. However, this section refers to headings in the land development code and states that such headings "are inserted for convenience of reference only and do not define, describe, or limit the scope, meaning or intent of any provision" of said code. SDMC section 113.0103 sets forth the definitions of terms used in the SDMC, including the definition of "development." It appears there was a typographical error in Zounes's letter and thus we will refer to SDMC section 113.0103 as the applicable section for purposes of this proceeding. 5
further evidentiary hearing regarding when Redln commenced business operations on the
property. (SAC, ¶ 33.)
A further evidentiary hearing was held by the same ALJ in April 2010. The ALJ
in June 2010 issued a supplemental findings of fact and determination of issues on
remand (supplemental enforcement order), finding that Redln commenced business
operations in September 1999 and therefore that an SDP was not needed.
Redln filed a complaint in March 2009 in the Superior Court, County of
San Diego (case No. 37-2009-00085820-CU-EI-CTL) against the City and Zounes for
inverse condemnation and for violation of section 1983. After Redln amended its
complaint, the court in response to respondents' demurrer sustained the demurrer with
leave to amend and issued a stay pending the outcome of the writ petition. In so doing,
the court noted the taking issue and the alleged civil rights violations by Zounes were not
then ripe because Redln first was required to pursue its administrative remedies.
After the evidentiary hearing following remand, the court dismissed the writ
petition, lifted the stay and granted Redln leave to amend its complaint. Respondents
demurred to Redln's SAC, which the court sustained without leave to amend.
6
DISCUSSION
I
Inverse Condemnation
A. Standard of Review
On appeal from the dismissal of an action after a demurrer has been sustained, we
exercise our independent judgment to determine whether the complaint states a cause of
action under any theory. (City of Morgan Hill v. Bay Area Air Quality Management Dist.
(2004) 118 Cal.App.4th 861, 869.) We accept as true all properly pleaded material facts,
all facts that may be inferred from the allegations and all matters judicially noticed, but
do not accept the truth of contentions, deductions or conclusions of law. (Aubry v. Tri–
City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
When a demurrer has been sustained without leave to amend, we review the
decision to deny amendment for abuse of discretion. (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.) The court abuses its discretion
when it denies leave to amend if there is a reasonable possibility an amendment would
cure the defects. It is, however, the plaintiff's burden to show how the complaint could
be amended. (Ibid.)
B. Governing Law and Analysis
The federal and state Constitutions guarantee real property owners "just
compensation" when their land is "taken . . . for public use . . . ." (U.S. Const., 5th
Amend.; Cal. Const., art. I, § 19.) "The Fifth Amendment's Takings Clause, made
7
applicable to the states through the Fourteenth Amendment, does not prohibit the taking
of private property, but instead places a condition on the exercise of that power."
(Allegretti & Company v. County of Imperial (2006) 138 Cal.App.4th 1261, 1270
(Allegretti), citing Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 536-537 (Lingle).)
"In other words, it 'is designed not to limit the governmental interference with property
rights per se, but rather to secure compensation in the event of otherwise proper
interference amounting to a taking.' [Citation.]" (Lingle, at pp. 536-537.)
"The paradigmatic taking requiring just compensation is a direct government
appropriation or physical invasion of private property." (Lingle, supra, 544 U.S. at p.
537.) However, as relevant to the case at bar, "government regulation of private property
may, in some instances, be so onerous that its effect is tantamount to a direct
appropriation or ouster and . . . such 'regulatory takings' may be compensable" as well.
(Ibid.)
Supreme Court precedent generally recognizes two "relatively narrow categories"
(Lingle, supra, 544 U.S. at p. 538) of regulatory action that will be deemed per se
takings: "First, where government requires an owner to suffer a permanent physical
invasion of [his or] her property—however minor—it must provide just compensation."
(Ibid.) Second, compensation is required when regulations "completely deprive an owner
of 'all economically beneficial use' of [his or] her property." (Ibid., quoting Lucas v.
South Carolina Coastal Council (1992) 505 U.S. 1003, 1019 (Lucas).) When there has
been a "'total regulatory taking,'" the government is required to pay just compensation
8
except to the extent that "'background principles of nuisance and property law'
independently restrict the owner's intended use of the property." (Lingle, at p. 538,
quoting Lucas, at pp. 1026-1032.)
"Outside these two categories, regulatory takings challenges are governed by the
'essentially ad hoc, factual inquiries' set forth in Penn Central [Transp. Co. v. New York
City (1978)] 438 U.S. 104 [(Penn Central)]. [Citations.] There is no set formula, but
'"several factors . . . have particular significance." [Citation.] Primary among those
factors are "[t]he economic impact of the regulation on the claimant and, particularly, the
extent to which the regulation has interfered with distinct investment-backed
expectations." [Citation.] In addition, the "character of the governmental action"—for
instance whether it amounts to a physical invasion or instead merely affects property
interests through "some public program adjusting the benefits and burdens of economic
life to promote the common good"—may be relevant in discerning whether a taking has
occurred. [Citation.] The Penn Central factors—though each has given rise to vexing
subsidiary questions—have served as the principal guidelines for resolving regulatory
takings claims that do not fall within the physical takings or Lucas rules.'" (Allegretti,
supra, 138 Cal.App.4th at pp. 1270-1271, quoting Lingle, supra, 544 U.S. at pp. 538-
539.)
"Each of these Penn Central inquiries aims to 'identify regulatory actions that are
functionally equivalent to the classic taking in which the government directly
appropriates private property or ousts the owner from his domain. Accordingly, each of
9
these tests focuses directly upon the severity of the burden that government imposes upon
private property rights.'" (Allegretti, supra, 138 Cal.App.4th at p. 1271, quoting Lingle,
supra, 544 U.S. at p. 539.)
Redln contends the court erred in sustaining the demurrer to its inverse
condemnation cause of action because a regulatory taking occurred when respondents
"improperly subjected [Redln] to permitting jurisdiction in bad faith contrary to others
operating in the same zoning area without the permits [r]espondents wrongfully alleged
were required, leading to [Redln's] loss of its business." Redln further contends that
between 2006 and 2008 a regulatory taking occurred under the Penn Central "ad hoc"
test and that between 2008 and 2010 a taking occurred under the Lucas test.4
1. 2006-May 2008; Penn Central Analysis
Here, the SAC alleges that during this time period, Redln continued to use the
property to operate (through All in One) its business of selling used vehicles wholesale.
(See, e.g., SAC, ¶¶ 20 & 31.) In addition, the SAC alleges that even after the City
notified Redln that it needed additional permits to operate its auto auction business on the
property, Redln entered into an agreement with a co-owner of the property to purchase an
undivided one-half interest in the property. (SAC, ¶ 21.) Moreover, after the City served
Redln with the civil penalty order which gave Redln until November 9, 2007 to correct
the violations on the property or face civil penalties, the SAC alleges Redln entered into a
4 Respondents argue that Redln raised a factual controversy by impermissibly changing its legal theory on appeal as it now seeks to apply a Penn Central analysis to one time frame and a Lucas analysis to another. Given our decision in this case, we deem it unnecessary to reach this argument. 10
new lease for use of a reduced portion of the property with one of the owners of the
property. (See SAC, ¶ 24.)
Based on these allegations in the SAC, among others, we independently conclude
under the Penn Central test that the regulatory changes proposed by the City during this
period of time did not interfere with Redln's "investment-backed expectations" for use of
the property such that it amounted to the "'functional[] equivalent'" of a "classic taking in
which the government directly appropriates private property or ousts the owner from his
domain.'" (See Allegretti, supra, 138 Cal.App.4th at p. 1271, quoting Lingle, supra, 544
U.S. at p. 539.)
That is, from the allegations in the SAC there clearly was sufficient and substantial
economic value remaining in Redln's other use(s) of the property that led Redln to
attempt to purchase an undivided one-half interest in the property, and when that fell
through, to enter into a new lease on the property despite the regulatory changes required
by the City. (See Buckley v. California Coastal Com. (1998) 68 Cal.App.4th 178, 193 [in
determining whether there has been a regulatory taking under the Penn Central analysis,
the inquiry requires an evaluation of the "owner's entire property holdings at the time of
the alleged taking, not just the adversely affected portion"], citing Keystone Bituminous
Coal Assn. v. DeBenedictis (1987) 480 U.S. 470, 497.) As such, we conclude under Penn
Central there was no regulatory taking of the property between 2006 and May 2008,
when the ALJ issued the 19-page enforcement order.
11
2. 2008 to 2010; Lucas Analysis
Redln next contends there was a categorical taking under Lucas commencing in
May 2008 when the ALJ determined that Redln was required to apply for an SDP to
operate its automobile auction business on the property. Redln alleges in its SAC that
respondents acted in bad faith in insisting Redln needed to obtain such a permit and that
as a result, it was deprived of all economically beneficial use of the property because to
obtain an SDP allegedly would have taken up to two years and cost hundreds of
thousands of dollars. (SAC, ¶¶ 18, 46.)
Regarding Redln's contention that respondents acted in bad faith in requiring
Redln to obtain an SDP before continuing its business operations, Redln fails to
recognize that an agency's subjective motives are for the most part irrelevant. (See Shaw
v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.) "The proper inquiry is not
into the subjective motive of the government agency, but whether there is, objectively,
sufficient connection between the land use regulation in question and a legitimate
governmental purpose so that the former may be said to substantially advance the latter."
(See Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006, 1022 (Landgate),
citing Nollan v. California Coastal Com. (1987) 483 U.S. 825, 836-837 and Dolan v. City
of Tigard (1994) 512 U.S. 374, 391.)
Here, Redln does not contend there was an objectively insufficient "connection
between the land use regulation in question and a legitimate governmental purpose . . . ."
(See Landgate, supra, 17 Cal.4th at p. 1022.) Rather, the only issue raised by Redln
12
regarding the requirement it obtain an SDP was when Redln began its wholesale auction
business on the property.
Exercising our independent judgment, we agree with the trial court that there was
no categorical taking because respondents gave Redln the option to apply for a permit
instead of vacating the property. (See SAC, ¶ 31.) The law is "quite clear" (see United
States v. Riverside Bayview Homes (1985) 474 U.S. 121, 127) that "the mere assertion of
regulatory jurisdiction by a governmental body does not constitute a regulatory taking.
[Citation.] The reasons are obvious. A requirement that a person obtain a permit before
engaging in a certain use of his or her property does not itself 'take' the property in any
sense: after all, the very existence of a permit system implies that permission may be
granted, leaving the landowner free to use the property as desired. Moreover, even if the
permit is denied, there may be other viable uses available to the owner. Only when a
permit is denied and the effect of the denial is to prevent 'economically viable' use of the
land in question can it be said that a taking has occurred." (Ibid., italics added.) Here,
the record clearly shows Redln never applied for an SDP. As such, it follows there was
no regulatory taking.
If the rule was otherwise, as proposed by Redln, a total regulatory taking would
result each time a governmental agency sought to regulate land use via a "permit system."
(See United States v. Riverside Bayview Homes, Inc., supra, 474 U.S. at p. 127.) Clearly,
we cannot countenance such a rule.
13
Moreover, although Redln contends in its SAC that it was prevented from
conducting any business on the property until it applied for and obtained an SDP, and
thus that there was a categorical regulatory taking (because it further alleges on
information and belief such a permit would have taken up to two years to obtain and cost
potentially hundreds of thousands of dollars), we note from exhibit 4 of the SAC that
what Zounes actually stated was there could be no development of the property.5
As noted, ante, in addition to the factual allegations of the complaint we may also
consider matters which have been or may be judicially noticed. (See Sacramento
Brewing Co. v. Desmond, Miller & Desmond (1999) 75 Cal.App.4th 1082, 1085, fn. 3.)
"The complaint should be read as containing the judicially noticeable facts, 'even when
the pleading contains an express allegation to the contrary.' [Citation.] A plaintiff may
not avoid a demurrer by . . . suppressing facts which prove the pleaded facts false.
using, or enlarging any building, structure, improvement, lot, or premises; of clearing,
grubbing, excavating, embanking, filling, managing brush, or agricultural clearing on
public or private property including the construction of slopes and facilities incidental to
such work; or of disturbing any existing vegetation." (Italics omitted.)
It is abundantly clear from the broad definition of "development" in SDMC
section 113.0103 that Redln was not precluded from conducting any business on the
property as it alleges in the SAC, or even some business. SDMC section 113.0103
instead plainly speaks to development of property, including division of property and
alteration of structures and the property itself. (See Robert F. Kennedy Medical Center v.
Belshe (1996) 13 Cal.4th 748, 756 [noting that where the words are clear, "'we may not
add to or alter them to accomplish a purpose that does not appear on the face of the
statute'" or regulation].)
Moreover, there is nothing in the record suggesting that Redln sought clarification
of what it could and could not do in connection with the property if it had applied for an
SDP. For this separate reason, we independently conclude under Lucas there was not a
total regulatory taking of the property between May 2008 and 2010.6
6 We also note that to the extent Redln allegedly was unable to operate any business on the property between May 2008 and June 2010 while it challenged the requirement it obtain an SDP in its writ petition, it was in large measure due to Redln's inability to proffer sufficient evidence during the initial administrative hearing in 2008 to establish when it commenced its automobile auction business on the property. After the trial court ordered a supplemental evidentiary hearing in connection with Redln's writ petition, Redln was able to show an SDP was not required through a "small batch of auction receipts" ostensibly predating January 1, 2000; sales tax returns prepared by Redln's 15
II
Violation of Civil Rights for Unlawful Policy/Custom -- Section 1983
"Section 1983 provides in relevant part: 'Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress. . . .'"
Redln contends the court erred in sustaining respondents' demurrer to Redln's
second cause of action when it ruled that neither development project manager Zounes
nor code enforcement coordinator Negrete was "at the apex of the authority for the action
in question." (See Harman v. City and County of San Francisco (2006) 136 Cal.App.4th
1279, 1298.) Instead, the court ruled that the ALJ was the "apex of authority" on whether
an SDP was required. According to Redln, the court erred in ruling the ALJ was the
"apex of authority" because among other things, the ALJ was not delegated policymaking
authority by the City. We agree. (See Harman v. City and County of San Francisco,
supra, at p. 1298 [noting that the U.S. Supreme Court has emphasized "that the
accountant; and the fact that Redln's office manager, who had started employment with Redln in September 1999, prepared the "forms and other related business documents for the auction business" of Redln. Although the hearing officer found the above evidence allegedly could not have been discovered by Redln before the close of the initial administrative hearing, this evidence clearly was available to Redln throughout the administrative and writ proceedings.
16
delegation of authority must relate to policy, which 'generally implies a course of action
consciously chosen from among various alternatives'"], quoting Oklahoma City v. Tuttle
(1985) 471 U.S. 808, 823.)
However, that does not end our discussion. Because we conclude ante there was
no regulatory taking of Redln's property under Penn Central and Lucas, we further
independently conclude there was no constitutional injury for liability to attach under
section 1983. (See Monell v. New York City Dept. of Soc. Serv. (1978) 436 U.S. 658, 690
[to be liable under section 1983, a plaintiff must prove an official policy or custom
caused plaintiff to suffer a constitutional injury].)
III
Leave to Amend to State a Cause of Action for "Selective Enforcement"
During oral argument on the demurrer, the court refused Redln's request to amend
its SAC to add a cause of action for selective enforcement, noting it had never heard of
such a claim. Redln contends the trial court abused its discretion when it denied Redln
leave to amend the SAC to add this claim. We disagree.
"Unequal treatment which results simply from laxity of enforcement or which
reflects a nonarbitrary basis for selective enforcement of a statute does not deny equal
protection and is not constitutionally prohibited discriminatory enforcement." (Baluyut v.
Superior Court (1996) 12 Cal.4th 826, 832.) "Unequal application of a statute or rule to
persons entitled to be treated alike is not a denial of equal protection 'unless there is
shown to be present in it an element of intentional or purposeful discrimination.'
17
(Snowden v. Hughes (1944) 321 U.S. 1, 8.)" (Cilderman v. City of Los Angeles (1998) 67
Cal.App.4th 1466, 1470.) "What the equal protection guarantee prohibits is state officials
'purposefully and intentionally singling out individuals for disparate treatment on an
invidiously discriminatory basis.' (Murgia v. Municipal Court (1975) 15 Cal.3d 286,
297.)" (Cilderman v. City of Los Angeles, supra, at p. 1470.)
Here, we note from the SAC that it was Redln who initiated regulatory review by
the City when it contacted the City in late 2005 or early 2006 about additional permits
Redln would need if it was to conduct auctions on the property under a proposed
agreement with the County. (SAC, ¶ 16.) This allegation in the SAC undermines Redln's
contention it was subjected to selective enforcement by the City.
In any event, other than general allegations of alleged bad faith and retaliation by
the City and Zounes in connection with the requirement that Redln obtain a CUP and an
SDP, there is no evidence in the record of any intentional or purposeful discrimination by
respondents, despite the fact this dispute between the parties is now almost seven years
old, has been the subject of two administrative hearings, a writ of mandate proceeding
and two demurrers. We thus conclude, albeit for reasons different than those articulated
by the trial court, that there was no abuse of discretion in rejecting Redln's last-minute
attempt to amend its SAC to add a selective enforcement cause of action.
18
DISPOSITION
The judgment is affirmed. Respondents to recover their costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
19
AI Brief
AI-generated · verify before citing
Holding. The court held that the plaintiffs failed to state a claim for inverse condemnation or a regulatory taking because the City's permit requirements did not constitute a categorical taking or a compensable regulatory burden under the Penn Central or Lucas tests. Consequently, the court also affirmed the dismissal of the section 1983 claim due to the absence of a constitutional injury.
Issues
Whether the City's regulatory actions constituted a compensable regulatory taking under the Penn Central or Lucas tests.
Whether the plaintiffs stated a valid section 1983 claim for constitutional injury.
Whether the trial court abused its discretion in denying leave to amend the complaint to add a cause of action for selective enforcement.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself 'take' the property in any sense”
“Because we conclude ante there was no regulatory taking of Redln's property under Penn Central and Lucas, we further independently conclude there was no constitutional injury for liability to attach under section 1983.”