Fox v. City of Pacific Grove

Background

Richard B. Fox sued the City of Pacific Grove, California, and other defendants under the Fifth Amendment’s Takings Clause. He alleged that the City’s denial of his applications to remove two protected trees from his property constituted a per se physical taking—that is, a taking requiring compensation without applying the usual balancing test for regulatory restrictions.

Fox also alleged that the City’s arborist affixed metal tags to the trees in 2021, putting him and tree-removal services on notice that the trees could not be removed without City permission. Fox sought just compensation for what he described as the City’s appropriation of the part of his property occupied by the trees.

Fox first applied for a removal permit in 2021. He reapplied in 2024 and sought to remove both trees. After the City’s Beautification and Natural Resources Commission unanimously denied his application, the City Attorney rejected Fox’s later appeal as untimely. The City then moved to dismiss the second amended complaint for lack of subject matter jurisdiction, failure to state a claim, and untimeliness.

Ripeness

The court denied the City’s motion to dismiss for lack of subject matter jurisdiction. It held that Fox’s claim was ripe because the City had reached a de facto final decision on his 2024 permit application. The court also held that the claim concerning the metal tags was ripe because a physical invasion, if one occurred, would occur when the invasion took place.

Timeliness

The court applied a two-year limitations period to Fox’s claim. It ruled that the claim based on the City’s 2024 permit denial was timely because it accrued when the City reached its final decision that year.

The court granted the City’s motion to dismiss Fox’s claim to the extent it was based on the 2021 placement of metal tags. The court ruled that this part of the claim was untimely because Fox alleged that the taking occurred no later than June 8, 2021, more than two years before he filed the action. The court assumed without deciding that placing the tags could constitute a per se physical taking.

Failure to State a Claim

The court granted the City’s motion to dismiss for failure to state a claim. It ruled that the City’s denial of Fox’s permit application only limited Fox’s use of his property by preventing him from removing the two trees. The City did not take title to property, authorize third parties to use the property, or require Fox to allow government or public access to it.

Because the permit denial did not constitute the kind of appropriation or physical invasion required for a per se taking, the court concluded that Fox had not plausibly alleged the only theory of liability he asserted. The court distinguished cases involving government acquisition of property, public access to private property, or permanent physical occupation.

Leave to Amend and Disposition

The court denied leave to amend. It cited Fox’s failure to cure the pleading deficiencies after previously receiving permission to amend, and it found that amendment would be futile. The court noted that Fox had continued to assert an as-applied per se taking theory and had not pursued other theories, including a regulatory-taking theory, substantive due process, or a facial challenge to the City’s tree code.

The order denied the City’s motion to dismiss for lack of subject matter jurisdiction, granted the City’s motion to dismiss for failure to state a claim, denied leave to amend, and dismissed Fox’s complaint with prejudice.