On April 26, 2016, in Boxer v. City of Beverly Hills (Case No.B258459), the Second District Court of Appeal roundly rejecting a takings lawsuit premised on alleged impairment of private views and speculative risk of fire danger caused by coastal redwood trees planted in a city park.
The plaintiffs alleged 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—on a clear day—Mounty Baldy 50 miles away.” Their views were obstructed after the City, in 1989, planted approximately 30 coastal redwood trees, the tallest trees in the world. According to Wikipedia, Sequoia sempervirens can reach up to 379 feet in height and up to 29.2 feet in diameter at breast height. While the case does not explain how tall those trees have grown in Beverly Hills’ Roxbury Park, the City did apparently allow the trees to grow tall enough to obstruct the plaintiffs’ views and allowed some poor quality coastal redwoods to remain that allegedly are potential fire hazards.
The plaintiffs filed an inverse condemnation lawsuit against the City under the state constitution, which provides that private property may not be “taken or damaged” for public use without just compensation. The City demurred to their complaint for failing to state a cause of action, and the trial court sustained the demurrer without leave to amend because the plaintiffs did not allege the kind of injury that establishes a taking under inverse condemnation law. Instead, the plaintiffs improperly relied on cases that addressed the measure of damages in eminent domain cases, not the element of whether a taking occurred.
The Court of Appeal thus began its analysis with a short primer on the differences between eminent domain and inverse condemnation proceedings. While an eminent domain proceeding is commenced by a public entity, a property owner initiates an inverse condemnation action. In addition, eminent domain actions typically focus on the amount of compensation an agency owes the property owner, because by initiating the proceeding the government effectively acknowledges that it seeks to “take or damage” the property in question. But the same is not true of inverse condemnation, where the property owner must first clear the hurdle of establishing that the public entity has, in fact, “taken or damaged” his or her property before he or she can reach the issue of just compensation.
The state’s courts have recognized three theories for when property will be considered to have been “taken or damaged” within the meaning of article I, section 19 of the California Constitution so as to allow a claim for inverse condemnation:
- the property has been physically invaded in a tangible manner;
- no physical invasion has occurred, but the property has been physically damaged; or
- an intangible intrusion onto the property has occurred that has caused no damage to the property but places a burden on the property that is “direct, substantial, and peculiar to the property itself.”
Inverse condemnation cases premised on the third theory – “intangible intrusions” – are a tall order given that they have only been recognized as takings in limited circumstances such as strong offensive odors that rendered property uninhabitable, or noise, dust, and debris that caused physical damage to property. Moreover, under California law “a landowner has no right to an unobstructed view over adjoining property.”
The Boxer property owners relied upon the “intangible intrusion” theory, arguing that because a property owner’s loss of view is part of compensable damage in eminent domain cases, the obstruction of their views is a harm sufficient to support their inverse condemnation claims. The Court of Appeal rejected that argument, for three reasons. First, it suggests that damage to property values establishes a compensable taking, when diminution in property values is simply a measure of just compensation when a taking is otherwise established. Second, the plaintiffs relied on cases involving an undeniable physical taking of property as well as an impairment of view. Finally, the plaintiffs’ theory is contrary to applicable legal authority, including Regency Outdoor Advertising, Inc. v. City of Los Angeles decision, in which the California Supreme Court rejected Regency Outdoor’s claim that the visibility of their billboards – which are worthless if no one can see them – was impaired by trees the city planted.
Given that the Boxer plaintiffs’ complaint was strictly visual, with no allegation that the City’s trees physically invaded their property, the court held that they did not have a property right to an unobstructed view and could not maintain an inverse condemnation cause of action.