Subject:[TT] Fwd: RE: McCutchen Update, Land Use Law
Date:Fri, 9 Feb 2001 11:26:08 -0800
Fromavid Swenk
Reply-Toiscussions of community and urban forestry
To: TREETOWN@LSV.UKY.EDU

February 07, 2001

LAND USE LAW

VIEW RESTORATION ORDINANCE NOT A TAKING

An appellate court held that a city ordinance regulating foliage heights
does not constitute a governmental taking without just compensation.
Echevarrieta v. City of Rancho Palos Verdes, 2001 Daily Journal D.A.R. 863
(Jan. 25, 2001). The City of Rancho Palos Verdes has an ordinance which
prohibits residents of the City from significantly impairing views by
permitting foliage to grow beyond certain heights. A neighbor whose view is
blocked may apply for a "view restoration permit" after attempting to
resolve the matter informally. If the foliage must be trimmed or removed,
the permit applicant bears the costs.
The property owner in this case was ordered to remove three trees and trim
five others in order to restore his neighbor's view of Catalina Island. The
neighbor applied for a view restoration permit, which the City granted on
condition that the neighbor pay for the work, and plant replacement
shrubbery to alleviate the property owner's privacy concerns. The property
owner sued the City, claiming that the view restoration ordinance resulted
in an unconstitutional taking as applied to his property.
The appellate court upheld the City's actions. It found that the ordinance
did not compel a physical invasion of the property owner's land, which would
have resulted in a per se taking of property without the need for further
inquiry. It is not the ordinance that caused the physical invasion, said
the court. "Rather, it is appellant's refusal to comply with [the view
restoration permit], after ample notice and opportunity to correct, that has
occasioned the threat of the City's entry onto the property. It does not
therefore, rise to the level of a physical invasion."
The court next found that the property owner was not deprived of either his
"reasonable investment backed expectations" or any significant economically
beneficial use of his land. Although the property owner claimed a loss of
"utility saving cooling shade," the court found that there was no vested
right to a fixed amount of utility charges or foliage of a certain height.
Further, the replacement shrubbery protected the owner's privacy. The court
also noted that city-wide regulation of tree heights ultimately may increase
the property's value as the City became known for its scenic vistas.
The case emphasizes how much discretion the courts grant local agencies not
only to determine aesthetic values but also to decide how aesthetic values
should be balanced against other concerns such as privacy.

This Update was prepared by Marie A. Cooper and Laura Colthurst Kisielius.
For further information, contact any member of our Land Use Counseling and
Litigation Group at (925) 937-8000:

Jeffrey A. Benz; Margaret Bielak; Marie A. Cooper; Daniel J. Curtin, Jr.;
Michael L. Greene; Grant Guerra; Peter S. Hayes; Linda Hoda;Julie A. Jones;
Laura C. Kisielius; Stephen L. Kostka; Kathleen A. McDonald; Michael
McFadden; Robert E. Merritt; Elizabeth M. Naughton; David J.
Petersen;Geoffrey L. Robinson; Barbara J. Schussman Janna A. Scott; Johanna
Sherlin; Sanford M. Skaggs; Cecily T. Talbert; Lisa D. Weil; Shawn J. Zovod.

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California State Court opinions can be found at
http://www.courtinfo.ca.gov/opinions.


© 2001 McCutchen, Doyle, Brown & Enersen, LLP


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