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Use Permit Limiting Extraction of Groundwater Was Not a Taking

A conditional use permit limiting a landowner’s right to use groundwater underlying his property was not a compensable taking. Allegretti & Company v. Imperial County, Case No. D045156 (April 26, 2006).

Imperial County issued a conditional use permit allowing Allegretti to re-drill an inactive well on a 2,400-acre parcel subject to the condition that total groundwater extraction on the property be limited to 12,000 acre-feet per year. Allegretti claimed the condition constituted both a physical and regulatory taking of his property. The Fourth District Court of Appeal ruled that the county’s actions did not effect a physical taking because the actions lacked the hallmarks of an actual physical occupation or invasion of the land, in that the county did not appropriate, impound or divert any water.

The court also found no regulatory taking because the permit condition did not deny Allegretti all economically viable use of his property, nor did it meet the Penn Central takings analysis: the condition did not unreasonably impair the value or use of the property or invade or appropriate any of Allegretti’s property; and there was no interference with reasonable investment-backed expectations, as Allegretti’s water right was already restricted by the California Constitution to the amounts needed for the landowner’s reasonable beneficial use.

For further information concerning the Allegretti decision, please contact the following attorneys: Geoff Robinson ( geoffrey.robinson [AT] bingham.com ) 925-975-5335 Derek van Hoften ( derek.vanhoften [AT] bingham.com ) 925.975.5341