Fox v. City of Pacific Grove, California

Background

Richard B. Fox sued the City of Pacific Grove, California, and other defendants under the Takings Clause of the Fifth Amendment. He alleged that the city’s denial of his permit application to remove two trees from his property amounted to a per se physical taking—that is, a taking treated as requiring compensation without the usual case-specific balancing. Fox sought just compensation for the property occupied by the trees.

The trees were protected under Title 12 of the Pacific Grove Municipal Code, which requires a permit to substantially prune or remove certain trees on private property. Fox alleged that the trees had damaged a retaining wall and driveway. He applied for permission to remove them in February 2024. After the city did not decide the application for several months, Fox treated the lack of a response as a denial and appealed to the city’s Beautification and Natural Resources Commission. The Commission unanimously denied the application in June 2024. Fox later sought to appeal to the City Council, but the City Attorney told him the appeal would not be processed because it was untimely.

The City’s Motion

The City moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that Fox’s claim was not ripe because he had not timely appealed to the City Council. It also moved under Rule 12(b)(6), arguing that Fox had not stated a plausible per se physical takings claim. Fox clarified that he was asserting one as-applied claim challenging how the tree ordinance affected his property.

Court’s Analysis

The court held that Fox’s claim was ripe. A regulatory takings claim generally requires a final government decision, but the court explained that only “de facto finality” was needed. Accepting Fox’s allegations as true, the city had adopted a final position by denying his application through the Commission and refusing to process his City Council appeal. The court therefore denied the City’s motion to dismiss for lack of subject matter jurisdiction.

The court reached a different conclusion on the takings claim. Fox argued that preventing him from removing the trees compelled him to maintain trees for the public’s benefit. But he did not allege that the city placed the trees on his property or required him to plant them. The ordinance did not give the city title to any part of the property, authorize the city or another person to enter and occupy it, or authorize a third party to use it. Without a government appropriation or physical intrusion, the court held that Fox could not plausibly allege a per se physical taking.

The court also granted the City’s motion to dismiss any claims for injunctive or declaratory relief aimed at stopping enforcement of the ordinance. The court noted, however, that Fox’s request for an injunction appeared, when read in context, to seek payment of compensation rather than equitable relief.

Disposition

The court granted in part and denied in part the City’s motion to dismiss: it denied dismissal for lack of subject matter jurisdiction and granted dismissal for failure to state a claim. Because Fox was representing himself and this was the first ruling on the legal sufficiency of his claim, the court granted leave to amend. Fox may file an amended complaint within 28 days of the order.