When a taking is a nuisance

A local government cannot ban a private property use without just compensation, unless the local government can prove an unreasonable and substantial nuisance from the development. In the case of Monks v. City of Rancho Palos Verdes, 2008 WL 4416188 (October 1, 2008), the California city of Rancho Palos Verdes contended that ancient landslides in the area of the property justified a moratorium on property development. The trial judge ruled for the City, deferring to the City’s requirement, that before being exempted from the moratorium, a lot-owner prove the entire area will be safe despite the individual property’s development,.

In a 34-page opinion that surveyed inverse condemnation law, revisited the statute of limitations and exhaustion ruling of its prior “Monks I” ruling, reviewed in detail the expert evidence and then honed in on the nuisance background of the City’s justification, the appeal court reversed. Employing the “categorical” taking analysis of the U.S. Supreme Court’s seminal Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, the Monks court ruled that the building moratorium had deprived Monks of “all economically beneficial use” of his property.

The burden then shifted to the city “to prove that the moratorium is justified by state nuisance law.” Applying California public and private nuisance law required an evaluation of the nuisance created by the specific property, not the generalized area, the appeal court held. The nuisance must be “substantial and unreasonable.” Plaintiff Monks’ case featured considerable evidence that another house on the “block slide” area would not be a danger. The trial court’s “uncertainty” based upon the City’s findings in its moratorium ordinance improperly discounted the burden placed on the City to show the “substantial and unreasonable” nuisance.

The result: before restricting property use for the “common good” government must make a solid case that the specific restriction is based upon “substantial and unreasonable” dangers or interference with the greater good. Otherwise, a permanent taking occurs and just compensation must be paid.