Nina and Frank Bottini are young parents who for nearly a decade have been fighting the city of San Diego to build a single-family residence in the suburban community of La Jolla. At the time of their purchase of the lot, the land was occupied by a dilapidated house, which the city first deemed not historic, then declared unsafe and a public nuisance, and then ordered demolished. In a reality-defying flip flop, only after the non-historic, dilapidated house was demolished and removed from the property did the city mandate an infeasible time-traveling historical resource review of the then empty lot.
The city has at every turn delayed the couple’s efforts to build a home, goaded by local historical-preservationist groups upset over the Bottinis’ demolition of the cottage on the now-vacant property. Now, the city refuses to grant a permit to build a single-family residence until the Bottinis undertake an expensive environmental-impact review. The couple has sued, arguing that the city’s prolonged delays and irrational permit requirements amount to a “regulatory taking” under the Fifth Amendment.
The Bottinis lost in the California Court of Appeal, even though the court ruled that the city council acted unlawfully. Despite the city’s malfeasance, the court ruled that the Bottinis’ didn’t have “distinct investment-backed expectations”—a concept that comes from a case called Penn Central—that were thwarted by the city’s actions. That was because they did not know—and could not have known—at the time of purchase whether they would be required either to fix up the old home as a historical landmark or rip it down as a public nuisance. The Court of Appeal held that these uncertain expectations, wrought solely by government action, doomed the Bottinis takings claim.
Two pillars of Takings Clause jurisprudence have, in recent decades, proved untenable. One is the test from the 1978 Penn Central case. That test was meant to determine when a “partial regulatory taking” occurs if a government action or delay deprives owners of certain uses of their property. The second, from the 1987 case of First English, exempts “normal delays” in the land-use regulation process from takings scrutiny.
Read more at https://www.cato.org/blog/stop-san-diegos-homewrecking
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