When a property owner brings a regulatory taking / inverse condemnation claim based on a city or county's zoning decisions, the owner often provides context and history, including public statements made by staff, board members or city council members. Are those public statements protected speech and therefore subject to California's Anti-SLAPP statute? A recent California Court of Appeal decision, City of Redondo Beach v. 9300 Wilshire, provides some context on what is and what is not permissible.
9300 Wilshire involves the site of a power plant in the City of Redondo Beach. The property owner filed a complaint against the City alleging that the City's zoning of the property for park and open space, and subsequent refusals to re-zone the property in a way that would benefit the owners, constituted a taking by depriving the owners of economically viable uses of the property. The City filed a special motion to strike under California's anti-SLAPP statute, asserting that because the owners alleged the City's zoning decisions were based on a decades-long scheme to deprive the owners of any economically viable use of the property, and the statements evidencing that motive were protected activity, the owners' claims "arise from" that protected activity and should be stricken.
Trial Court Ruling
The trial court held that the owners' inverse condemnation / regulatory takings claim did not arise from protected activity; instead, the statements alleged in the complaint "provide color" but were not necessary to succeed on the causes of action. More specifically, the owners' "takings claims are based on the City's failure to zone the property for economically viable use without paying [owners] just compensation. The protected activities cited by the City are merely background information and evidence of the alleged taking."
Appellate Court Decision
The Court of Appeal confirmed that zoning decisions are not protected activity, and while the owners' complaint includes extensive allegations about the history of the property and how the City reached its zoning decisions, these allegations simply put the City's zoning decisions into a certain context: they demonstrate the history of the zoning, and support the owners' contention that the City had a certain motive for making the zoning decisions that it did (to accomplish the alleged taking at a low cost to the City). The City's statements, however, were not the basis for the owners' causes of action, as the owners' claims focus on the restrictions on the use of their property and how those restrictions impact the owners. The causes of action do not rely upon any motives or intentions guiding the City's actions, and "[a]llegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute." Because no part of the takings and due process claims arise from protected activity, the owners' claims were allowed to proceed.
Take-Away
9300 Wilshire provides some guidance for property owners asserting inverse condemnation / regulatory takings claims when it comes to relying on statements by city or county staff, board members or city council members. Courts will provide some leeway in allowing such statements to frame the context of takings claims, but owners should be careful not to rely on such statements to constitute the basis for the cause of action. The Anti-SLAPP statute still remains a useful tool for public agencies, but only to the extent a cause of action is specifically based on protected speech.
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