On November 4, 2019, the U.S. Supreme Court declined to review a California Court of Appeal decision that gives short shrift to the federal Takings Clause. A California couple have been engaged in a years-long struggle to obtain a building permit for their land. When their case went to court, both the trial court and the court of appeal ruled that the city authorities had arbitrarily held up their building project. The courts further ruled, however, that the landowners are not owed just compensation for a taking. Applying the multi-factor “Penn Central” regulatory takings test, the courts concluded that the landowners could not recover from the government unless they knew, when they bought the land, whether they would keep a house already standing on it, or instead replace it with a new one. In its brief, WLF explained that the lower courts are applying the Penn Central test in many inconsistent ways. The lower courts need guidance in particular, WLF explained, about when a government delay in granting a land-use permit turns into a constitutional taking.
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