Appeals court backs property rights

Appeals court backs property rights

pasadena trees, city imagePasadena is known for its famous tree-lined streets. It now also may be known for the trees becoming the key in the first case in California to establish that a city’s urban forestry programs can be subject to “inverse condemnation” lawsuits filed by property owners.

The case concerned the windstorm that swept through Pasadena in Nov. 2011, toppling 5,500 street trees. The legal decision was handed down Aug. 21 by California’s Second District Court of Appeal in favor of Mercury Casualty Company. The insurance company was acting on a claim by James O’Halloran, to whom it paid $293,000 for damage a fallen tree did to his home.

Eminent domain is the taking of private land by the government for public purposes, such as building a school. The Fifth Amendment mandates that “just compensation” must be paid for “private property taken for public use.”

What if the government doesn’t pay a fair price for the taking? That’s where “inverse condemnation” comes in. According to, “Inverse condemnation actions are usually brought when the government has limited use of private land to an extent that the value of that land is greatly reduced, or where the government has allowed the public to make use of private land.”

Article I, Section 19, of the California Constitution also provides for inverse condemnation. It states private property “may be taken or damaged for a public use and only when just compensation…has first been paid to the…owner” (emphasis added).

But to prevail in an inverse condemnation action against the government, proof is required of deliberate governmental action. The action must serve a public purpose. And the government must fail to prove it was not negligent. Examples of governmental inverse condemnation liability are from flooding, sewage spills, the impairment of street access or noise from aircraft overhead flights.

In the case at hand, Pasadena insisted that no “inverse condemnation” case ever had involved a tree.

A key point in the matter was that Mercury didn’t file a routine nuisance lawsuit that might have been dismissed.  Instead, it filed the inverse condemnation lawsuit.

Public purpose

The appeals court ruled that Pasadena’s urban forestry program was a government program that served a public purpose and thus was subject to inverse condemnation lawsuits.

It ruled that, based on facts brought forth in the trial in the lower Superior Court, the city of Pasadena “did not meet its burden of showing it had fulfilled its duty of care with respect to O’Halloran’s property” (see page 12).  Specifically, mere pruning of street trees by the city was insufficient proof that it was not negligent in planting and allowing large trees to grow to such heights that they could topple in a 100-mile per hour windstorm.

The appeals court also thought it highly significant that Pasadena had an active “urban forestry” program operated by city personnel and relying on professional tree experts.  Property owners are not allowed to prune or remove street trees.  Thus, the city was not able to claim “contributory negligence” by property owners who should have cut down or pruned their own trees.

The decision is significant because it is a victory for property rights in a state that doesn’t always respect them. For example, earlier this year the First District Court of Appeal in the case Powell vs. County of Humboldt sided with the county against charges of the abuse of building permits.


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  1. Tesla_x
    Tesla_x 23 August, 2014, 18:19

    Would an inverse condemnation lawsuit be applicable to the negligent seizure and wasting of several million acre feet, much of which was valuable farmwater that was paid for, the loss of which caused significant damage to both farm land values and businesses?

    Because they negligently chose to protect a common baitfish over human water needs, many mandated in the california constitution, the drought has become an economic disaster.

    This actually goes well beyond negligence, as the tone of many political and NGO supporters of the smelt, and many in government, borders on malevolence driven ECO-fanaticism.

    I can’t wait till the next election.

    Reply this comment
    • Wayne Lusvardi
      Wayne Lusvardi 23 August, 2014, 21:57


      I’m not a lawyer but I don’t believe the diverting of bought and paid for water to protect a fish that is abundant elsewhere in the U.S. and the world is grounds for inverse condemnation because the government did not physically damage farm properties. However, it would fall into the category of a possible regulatory taking. The problem with regulatory takings is that they are typically non-compensatory under the law. But the instance you raise is of water that was already paid under contracts with the Federal government. But once again, probably contract law is paramount over regulatory taking law.

      What is interesting in the Pasadena case is that now property owners can balance the “you can’t fight city hall” sort of law by using their insurance companies to sue cities and recover the insurance company’s costs. This case is a game changer I believe.

      Reply this comment
  2. T Mind of Ted Your God
    T Mind of Ted Your God 23 August, 2014, 21:06

    Tea Baggers!
    Here’s one—

    State Law allows halfway houses– felons, drug rehabs, parolees, dual diagnosis loons etc to move into ANY R1 zoned area! There is a HUGE movement placing these in suburbs EVERYwhere……alot of nice beach towns seem to be suffering—- guess what? Private property rights! Owners can rent to private health corps that make a mint off of the parolees etc—- private property hysteria is a doomy slippery slope little buddies!

    Reply this comment
  3. Wayne Lusvardi
    Wayne Lusvardi 23 August, 2014, 21:49

    Your logic is flawed. It isn’t private property rights but public over regulation of property rights that has resulted in rehab facilities in single family residential neighborhoods. Nice try, but it doesn’t fly.

    Reply this comment
  4. T Mind of Ted Your God
    T Mind of Ted Your God 24 August, 2014, 09:30


    True in a way– but it is ONLY so called pp rights that allowed homeowners in R1 zones to rent to corperations that set up the facilities for the felons to live next door. Otherwise, cities could pass zoning laws restricting same. Now they can’t because of state law that defines families for the purposes of zones.

    If a restriction in property rights disallowing such rentals by homeowners in R1 areas was law the problem would be solved— but your kind has been touting the “private property” rights nonsense so long it’s an uphill battle!

    How do you distinquish your pp rights position with a cities ability to restrict who you rent to?

    Ted, your friend.

    Reply this comment
    • Wayne Lusvardi
      Wayne Lusvardi 25 August, 2014, 10:46

      On the west side of Los Angeles and in the Malibu area there are many drug rehab houses in very upscale areas. Not too much resistance because it doesn’t damage neighborhood property values.

      In other areas it becomes more problematic because it hurts property values and puts substance abusers and ex-cons in half way houses next door to families. I think the law should be reformed to mandate that cities plan for half way houses but in industrial and commercial or multifamily zones. Convalescent homes and homes for retarded children are more compatible with R-1 zones.

      In Houston, which has no zoning, they solve this problem with covenants in each neighborhood (not racial) that assures that there are compatible land uses.

      Ted, remember the naive, idealistic white kid who thought he would move into a Black neighborhood and he went out on a walk and got pummeled to nearly death? I can’t remember where that was. The Black neighborhood didn’t perceive him to be a tolerant and unprejudiced liberal person; they saw him as a White blockbuster who bring gentrification and eventually higher rents that would drive them out of the neighborhood. That is what graffiti is: a symbolic marker to stay out. So there is neighborhood resistance against markets on another level as well.

      As you know, there is a law against child molesters living within a certain distance of schools.

      Property rights are a civil right as well. Blacks were denied homeownership by racial covenants and other policies and that denied them economic mobility because homes are used as bank accounts to borrow against.

      What libertarians don’t like is government taking some property rights without just compensation and leaving the landowners with the damages and nuisance.

      Private property is a buffer against the intrusions of the state: a man’s home is his castle. That is a liberal value: privacy.

      You’re right, many R-1 neighborhoods have been informally changed to multifamily areas by homeowners moving out and renting out their SF homes to those who might pack 2 or 3 families in the same dwelling. This occurs even in upscale areas such as San Marino in Southern California where many mansions are turned into sort of dormitory housing for foreign students who then go to local schools and junior colleges on the cheap.

      So if you mean that their can be abuses or an excess of property rights I might agree with you.

      Reply this comment
      • T Mind of Ted Your God
        T Mind of Ted Your God 26 August, 2014, 08:11

        Your post was a nice rambling sort of review of many things but I’m not sure I see a thread through it?

        Yes, I am right, I agree with you, there are abuses to the extent of pp rights. That was my point of course. The teabaggers, well, slumlords in my town are yelling the loudest and have been. They want the pp rights to rent to anyone or do ANYthing they want at the expense of the security of their neighborhoods. NOW many rich white folks, (that’s my hood) are screaming about the parolees in the hood because of the influx and easy rental policies. It’s ironic.

        Sex offenders once convicted have lost their civil rights so there is no concomitant civil rights issue at all. Race restrictive cov’s were struck down in the 50’s– no issue there. This new problem is 100% ok Constitutionally that’s not the issue. The issue is the silly extreme and the terminal end of yet another goofy libertarian- Republican idea.

        This whole issue is the terminal end of stupid libertarian extremes—-PP

        Reply this comment
  5. Ulysses Uhaul
    Ulysses Uhaul 24 August, 2014, 22:05

    Check the location of sex offenders in beach areas. They congregate in past prime motels; the more well heeled gravitate to duplex type rentals. Why……lack of local criticism as many renters have their own demons to occupy their time!

    Reply this comment
  6. T Mind of Ted Your God
    T Mind of Ted Your God 25 August, 2014, 08:20

    And because Republibaggers will rent to anyone because they have…….

    private property rights

    Reply this comment

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