Case of the Day – Wednesday, September 20, 2017

I CAN SEE CLEARLY NOW

There’s an old saying that goes something like if you’re not the lead dog, the view never changes. Of course, the obverse of that aphorism is that if you are a lead dog, the view can be stunning indeed.

Appropriately enough, the plaintiffs in today’s case are the Boxers, a pair of top dogs if ever there were any. From their fancy home on South Spalding Drive, they “were accustomed to having an unobstructed view of the hills of Beverly Hills, the Hollywood Hills, and the Los Angeles basin, including the Hollywood sign, the Griffith Observatory, downtown Los Angeles, and-on a clear day-Mounty Baldy 50 miles away.”

But then, in 1989, the City of Beverly Hills had to spoil things by planting 30 trees in nearby Roxbury Park. And not just any trees: the City planted coastal redwoods, which only grow to be the tallest tree in the world. The Boxers doggedly complained to the City, and in 2005, Beverly Hills responded by trimming the trees (but not completely restoring the view the Boxers loved so much). In 2013, the Boxers whined again, “but this time, the City simply ignored Plaintiffs’ concerns.”

So the Boxers sued, claiming that by destroying the view they loved so much, the City had impaired their view and decreased the value of their property.

The 5th Amendment prohibits the government from taking your property “without just compensation.” There are regular plain-vanilla takings, such as when the government bulldozes your house in order to let developers build a fancy high-priced neighborhood with houses, a marina, shops and restaurants.

And then there are inverse condemnations, where the government does not take your land, but just does something else to make it uninhabitable, such as building a sewage treatment plant upwind to your house, planting a freeway embankment in front of your place, or extending a commercial airport runway to your front door stoop.

The Boxers blamed the City’s “plan, design, and maintenance of the redwood trees” for wrecking the view and increasing a risk of fire. The City demurred, which is the legal way of saying “even if everything they say in their complaint is true, they’ve got nothing coming.”

In California, property is taken or damaged, so as to give rise to a claim for inverse condemnation, when it has been physically invaded, or physically damaged, or an intangible intrusion onto the property has that places “a burden on the property that is direct, substantial, and peculiar to the property itself.” But no one has a basic right to an unobstructed view over adjoining property, unless they have contracted with the adjacent property owners for it or the legislature provides for it.

Here, despite the Boxers’ rebellion, there had been no physical intrusion onto their property, and the fact that absent the view of the Beverly hills the property wasn’t worth as much does not constitute a taking or damaging. Imagine the mess were the court to agree with the Boxers: your neighbors’ house is painted a garish color that is an eyesore, or a new hotel goes up a block away that spoils your view of the sunrise, or a new grade school is built in the next block, and playground noise upsets your cats. If changes in the use of surrounding property – or, as here, the incremental growth of trees – that affect the character of the neighborhood in a way you don’t like somehow gives you the right to collect money damages from another, progress would grind to a halt. What would be as bad, you would be as restricted in making use of your property as you could restrict others.

Boxer v. City of Beverly Hills, 246 Cal.App.4th 1212 (Ct.App. 2nd Dist., 2016): The Boxers owned a house on Spalding Drive in Beverly Hills. They filed an inverse condemnation action against the City of Beverly Hills, seeking damages and injunctive relief based upon impairment of the views from their backyards by coastal redwood trees the City planted in Roxbury Park. They complained that they were accustomed to having an unobstructed view of the hills of Beverly Hills, the Hollywood Hills, and the Los Angeles basin, including the Hollywood sign, the Griffith Observatory, downtown Los Angeles, and even Mounty Baldy. Since their planting in 1989, the redwood trees had grown to block the previously unobstructed view. Plaintiffs wanted money, and an order that the City had to trim or remove the trees.

The trial court agreed with the City that as a matter of law, inverse condemnation provides no remedy for impairment of view from private property.

The Boxers appealed.

Held: The Boxers went down for the count. The Court held that for inverse condemnation purposes, property is ‘taken or damaged’ within the meaning of the California Constitution when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.”

Where there is no physical intrusion, such as in this case, the plaintiff must allege that the intrusion has resulted in a burden on the property that is direct, substantial, and peculiar to the property itself. The diminution in the value of the property alone does not establish a compensable taking or damaging of the property. Rather, diminution in value of the property is just an element of the measure of just compensation when such taking or damaging has otherwise been proven.

The Boxers did not allege any physical intrusion, occupation, or invasion of their property or any physical damage to their property. The trees about which they complained were not located on their land. The Boxers necessarily relied upon the intangible intrusion theory and argued that because a “property owner’s loss of view is an aspect of compensable damage” in eminent domain cases, the impairment of their views is a harm sufficient to support their inverse condemnation claims.

It is not. While “a compensable visibility interest” has been recognized when the government has physically taken part of someone’s property, that interest is not itself a taking or damaging of the property.

The Court held that the Boxers did not have a property right to an unobstructed view, and they did not allege that either the trees in question or anything associated with the trees physically invaded their property, either tangibly or intangibly. Thus, they could not maintain an inverse condemnation cause of action.

– Tom Root

TNLBGray140407

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