It's Not "Taking" Your Water--You Just Can't Use It
Allegretti owns a 2400 acre farm in Imperial County that relies on well water for irrigation. Allegretti needed a conditional use permit to re-drill an inoperable well. The County refused to grant it unless he agreed to severe limits on the use of the water under his property, water he had a legally recognized right to use. The Fourth District Court of Appeal in Allegretti & Co. v. Cty. of Imperial found Allegretti had no protected property right that was taken.
Allegretti sued in California state court. After losing at trial, he appealed to the Fourth District Court of Appeal, claiming the regulation had caused a physical taking, or alternatively, a regulatory taking.
Allegretti cited established authority which holds that the diversion of water is recognized as a physical taking. The Court distinguished two such prior Supreme Court decision: Dugan v. Rank (1963) 372 U.S. 609, 614, 625-626 (government's upstream impounding of water at a dam constitutes a taking of water rights from downstream owners) Int'l Paper County. v. United States (1931) 282 U.S. 399, 407-408 (taking found where the Secretary of War ordered a private power company to withdraw water from the petitioner's mill to increase power production for government uses) The Court explained the government did not "appropriate, impound or divert any water." Of course, the regulation had exactly the same effect as a physical diversion, denying the property owner from using water under his property, water which he had the legal right to use.
The Court then considered the regulatory taking claim under the Penn Central three factor balancing test. [(1) the economic impact of the regulation (2) the extent to which the regulation has interfered with distinct investment-backed expectations(3) the character of the governmental action.)] In light of the instruction of the U.S. Supreme Court in Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 125 S.Ct. 2074, that "each of these Penn Central inquiries aims to 'identify regulatory actions that are functionally equivalent to the classic taking in which the government directly appropriates private property or ousts the owner from his domain,'" Allegretti stated a strong taking claim. The regulation was very similar in effect to a physical taking, which should have strongly supported a taking claim.
Instead, the Court affirmed the granting of a non-suit motion by the trial court. The Court focused almost exclusively on the first Penn Central factor, the economic impact of the regulation, noting purported weaknesses in the evidence concerning the economic impact. The Court seemed to believe this factor was satisfied by simply showing some significant residual value in the property.
The Court simply ignored the second factor--the investment backed expectations--claiming it only needed to consider two factors, despite the fact that the Penn Central analysis is a "balancing test."
The similarity of the regulation to physical taking would be most relevant to the third factor, the "character of the governmental action," but the court's analysis started and ended with its conclusion that there was no physical taking. Of course, the property owner would have never reached the Penn Central analysis if there was a physical taking. In effect, the Court of Appeal changed this factor to a redundant restatement of the question of whether there was a physical taking. In considering this factor, the Court should have considered the similarity in purpose and effect of the regulation to a physical taking, or whether the regulation imposed a burden on the property that should be borne by the community as a whole, which the Court in Lingle recognized was central to the Fifth Amendment.
Allegretti demonstrates the antipathy of California courts to takings protections and the difficulty of proving a "Penn Central" regulatory taking claim.
very interesting, but I don't agree with you
Idetrorce