In the

Supreme (tart nf tlje Mniteb ^>tatefi Supreme dourt, U.S.

FILED

JUL 1 6 2025
OFFICE OF THE CLERK
JAMES T. BALLARD,

Petitioner,

v.

THE CITY OF WEST HOLLYWOOD, THE CITY

COUNCIL OF THE CITY OF WEST HOLLYWOOD,
AND THE WEST HOLLYWOOD RENT
STABILIZATION COMMISSION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

James T. Ballard
Petitioner Pro Se
148 North June Street
Los Angeles, CA 90004
(323) 333-3616
[email protected]

382911
0
COUNSEL PRESS
(800)274-3321 • (800)359-6859
RECEIVED
JUL 1 8 2025
OFFICE OF THE CLBRK
SUPREME COURT, U.S,
 i

QUESTIONS PRESENTED

1. Whether a municipality may transform temporary

emergency rent restrictions and occupancy mandates
adopted at the start of the COVID-19 pandemic into
permanent rent control measures that expand benefits
to tenants and the public at large at the expense of
private property owners, without triggering scrutiny
under the Takings and Due Process Clauses of the
Fifth and Fourteenth Amendments of the U.S.
Constitution.

2. Whether the denial of leave to amend, despite the

viability of property claims for takings and due
process violations, constituted an abuse of discretion
under this Court’s liberal standard for amendment
under Federal Rule of Civil Procedure 15(a).
 ii

PARTIES TO THE PROCEEDING

Petitioner is James T. Ballard, plaintiff-appellant

below.1

Respondent-defendants are the City of West

Hollywood, the City Council of the City of West Hollywood,
and the West Hollywood Rent Stabilization Commission,
defendants-appellees below.

1. Under California law, a revocable trust is not a separate

legal entity, allowing Ballard to proceed pro se. See Boshernitsan
v. Bach, 61 Cal.App.5th 883,891 (2021).
 iii

RELATED PROCEEDINGS

Ballard v. City of West Hollywood, No. 24-538,2025 WL

618110 (9th Cir. Feb. 26, 2025).

Ballard v. City of West Hollywood, No. 2:23-cv-04367-

FMO-AGR, 2024 WL 3593999 (C.D. Cal. Jan. 3, 2024).
 iv

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED....................................... i

PARTIES TO THE PROCEEDING........................... ii

RELATED PROCEEDINGS..................................... iii

TABLE OF CONTENTS............................................. iv

TABLE OF APPENDICES...................................... vii

TABLE OF CITED AUTHORITIES......................... ix

PETITION FOR WRIT OF CERTIORARI................. 1

OPINIONS BELOW..................................................... 1

JURISDICTION........................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..................................... 1

INTRODUCTION................................................ 2

STATEMENT......................... 6

Factual Statement.............. ...................................... 6

Temporary Emergency Ordinances at the

Start of the Pandemic..................................... 6
 V

Table of Contents
Page
Uninterrupted Accrual of Annual Rent
Increases......................................................... 7

Temporary Limitations Codified as

Permanent Restrictions................................. 8

Circumstances Had Already Changed............... 9

Four Decades of Rent Control.......................... 11

U.S. District Court for the Central District

of California................................... 13

U.S. Court of Appeals for the Ninth Circuit............ 14

Majority Panel..................................................14

Partial Dissent by Judge Bumatay................... 15

REASONS FOR GRANTING THE WRIT............... 15

Rent Control Ordinances That Appropriate

Vested Property Interests, Impose Occupancy
Requirements, and Arbitrarily Cap Rent
Increases Transgress Constitutional Limits......... 15

The Annual General Adjustment Is a Distinct

Property Interest Around Which the WHRSO
Is Built.................................................................... 17
 vi

Table of Contents
Page
Circuits Divided on Whether an Eviction
Moratorium Invades the Right to Exclude
and Deepens Takings Violations.......................22

Rent Control Is Not Immune From Facial or

Categorical Challenges.................................... 23

Temporary Interference with Property Rights

Constitutes a Constitutional Violation.............. 25

Appropriations of AGAs and Confiscatory Rent

Ceilings Violate the Fair Return Doctrine
and the Takings and Due Process Clauses............. 28

West Hollywood Cannot Extract Benefits Without

a Nexus and Rough Proportionality................ 31

Regulatory Takings Claims Plausible Under

Penn Central’s Three-Prong Test......................... 33

Due Process Was Violated Through Arbitrary,

Retroactive, and Vague Regulations and
Administration..................................................35

CONCLUSION.......................................................... 36
 vii

TABLE OF APPENDICES
Page
APPENDIX A — MEMORANDUM OF THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT, FILED
FEBRUARY 26,2025..........................................la

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT, CENTRAL
DISTRICT OF CALIFORNIA, FILED
JANUARY 3,2024 ............................................ 7a

APPENDIX C — ORDER OF THE

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT, FILED
APRIL 17,2025.................................................20a

APPENDIX D —
RELEVANT PROVISIONS INVOLVED

WEST HOLLYWOOD, CAL, MUN. CODE

ORDINANCE 22-1101U (EXCERPTS)............. 22a

WEST HOLLYWOOD, CAL, MUN. CODE

ORDINANCE 20-1103U (EXCERPTS)............. 26a

WEST HOLLYWOOD, CAL, MUN. CODE

ORDINANCE 22-1194........................................ 30a

WEST HOLLYWOOD, CAL, MUN. CODE

(EXCERPTS).................................................... 36a
 viii

Table ofAppendices
Page
CHAPTER 17.04 — TITLE AND
FINDINGS.................................................. 36a

CHAPTER 17.08 — DEFINITIONS.......... 38a

CHAPTER 17.36—ANNUAL GENERAL

RENT INCREASES.................................... 48a

CHAPTER 17.44 — RENT ADJUSTMENTS

UPON VACANCY......................................... 53a
 ix

TABLE OF CITED AUTHORITIES

Page
CASES:

7Jf Pinehurst LLC v. New York,

218 L. Ed. 2d 66 (Feb. 20,2024)......................... 16

Alabama Assn. of Realtors v.

Dept, of Health and Hum. Servs.,
594 U.S. 758 (2021)................................................26

Arkansas Game & Fish Comm’n v. United States,

568 U.S. 23(2012)......... 26

Armstrong v. United States,

364 U.S. 40 (1960)............................................. 19,28

Ashcroft v. Iqbal,
556 U.S. 662 (2009).......... 36

Birkenfeld v. City of Berkeley,

17 Cal.3d 129 (Cal. 1976)................... .29

Bluefield Waterworks & Imp Co. v.

Pub. Serv. Comm’n,
262 U.S. 679(1923)................................................. 29

Brown v. Legal Found. ofWashington,

538 U.S. 216(2003).................................................. 19

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021)................ . 4,13,19,21-24,26
 X

Cited Authorities
Page
Cmty. Hous. Improvement Program v.
City of New York,
59 F.4th 540(2023) .............................. 22-23

Cotati All. for Better Hous. v. City of Cotati,

148 Cal.App.3d 280 (1983) 21,29

Darby Dev. Co. v. United States,

112 F.4th 1017 (Fed. Cir. 2024) 22

Dolan v. City of Tigard,

512 U.S. 374 (1994) 31

Duquesne Light Co. v. Barasch,

488 U.S. 299 (1989) 4,29

Eastern Enterprises v. Apfel,

524 U.S. 498 (1998) 4,14,18

First English Evangelical Lutheran Church

of Glendale v. Cnty. of Los Angeles,
482 U.S. 304 (1987) 26

Fisher v. City of Berkeley,

37 Cal. 3d 644 (1984) 21,29, 35

Fed. Power Comm’n v. Hope Natural Gas Co.,

320 U.S. 591 (1944) 29

GHPMgmt. Corp. v. City ofLos Angeles, California,

No. 24-435,2025 WL 1787663 (U.S. June 30,2025) .. .23
 xi
Cited Authorities
Page
Guar. Nat. Ins. Co. v. Gates,
916 F.2d 508 (9th Cir. 1990)............................... 30

Hacienda Valley Mobile Ests. v.

City of Morgan Hill,
353 F.3d 651 (9th Cir. 2003)................................... 15

Heights Apartments, LLC v. Walz,

30 F.4th 720 (8th Cir. 2022)................ 22

Horne v. Dep’t ofAgric.,

576 U.S. 350(2015)...................................... 19,21

Hotel & Motel Ass’n of Oakland v.

City of Oakland,
344 F.3d 959 (9th Cir. 2003)................................... 15

Int’l Paper Co. v. United States,

282 U.S. 399 (1931)........................................... 27

James v. Campbell,
104 U.S. 356 (1881)........................................... 19

Jersey Cent. Power & Light Co. v. FERC,

810 F.2d 1168 (D.C. Cir. 1987)............................30

Kavanau v. Santa Monica Rent Control Bd.,

16 Cal. 4th 761 (Cal. 1997) 21,29, 35

Kimball Laundry Co. v. United States,

338 U.S. 1(1949)................................................27
 xii

Cited Authorities
Page
Knick v. Twp. of Scott, Pennsylvania,
588 U.S. 180(2019)............................................ 28

Koontz v. St. Johns River Water Management Dist.,

570 U.S. 595 (2013)............................... 23,24,32

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005)..... 35

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982)............................,.............. 23

Michigan Bell Tel. Co. v. Engler,

257 F.3d 587 (6th Cir. 2001)............................... 30

Moss v. U.S. Secret Serv.,

572 F.3d 962 (9th Cir. 2009).............................. 15

Murrv. Wisconsin,
582 U.S. 383(2017)...................................... 18,19

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987).............. 31

Off- of United States Tr. v.

John Q. Hammons Fall 2006, LLC,
602 U.S. 487(2024)................................................. 36

Pakdel v. City & Cnty. of San Francisco,

594 U.S. 474 (2021)............................................ 28
 xiii

Cited Authorities
Page
Penn Cent. Transp. Co. v. City of New York,
438 U.S. 104 (1978)................ 4,33

Pennell v. City of San Jose,

485 U.S. 1 (1988) 12,16,18,21,23

Pension Ben. Guar. Corp. v. R.A. Gray & Co.,

467 U.S. 717 (1984)........................................... 34

Phillips v. Washington Legal Found.,

524 U.S. 156 (1998)........................................... 19

Sinclair Oil Corp. v. Cnty. of Santa Barbara,

96 F.3d 401 (9th Cir. 1996).................................. 14

Tahoe-Sierra Pres. Council v.

Tahoe Reg’l Plan. Agency,
535 U.S. 302 (2002)................................................. 27

The Board of Regents of State Colleges v. Roth,

408 U.S. 564 (1972)................................................. 18

Tyler v. Hennepin Cnty., Minnesota,

598 U.S. 631 (2023)....................................... 21,36

United States v. Causby,

328 U.S. 256 (1946)............................................. 19

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945)............................................. .27
 xiv

Cited Authorities
Page
United States v. Petty Motor Co.,
327 U.S. 372 (1946)............................................ 27

United States v. Pewee Coal Co.,

341 U.S. 114 (1951)............................................ 27

Washington State Grange v.

Washington State Republican Party,
552 U.S. 442 (2008)................................................. 14

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980)............................................ 19

Williamson Cnty. Reg’l Plan. Comm’n v.

Hamilton Bank of Johnson City,
473 U.S. 172 (1985).................................................. 15

Yee v. City of Escondido, Cal.,

503 U.S. 519 (1992) 11,12,24,25

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. V........................................ 1,18,25

U.S. Const amend. XIV, § 1............................... 1,12,25

RULES

Federal Rule of Civil Procedure 12(b)(6)...................... 2

Federal Rule of Civil Procedure 15(a)................ 36

 XV

Cited Authorities
Page
STATUTES

Cal. Civ. Code § 1954.52(c)(i) 2,10

ORDINANCES

West Hollywood, Cal., Mun. Code,

Ordinance 20-1101U (Mar. 16,2020)
https://www.weho.org/home/showpublished
document/44116/637205840407570000 2, 6,10

West Hollywood, Cal., Mun. Code,

Ordinance 20-1103U (Apr. 6,2020)
https://www.weho.org/home/showpublished
document/46261/637230729451000000 2, 6-7,10

West Hollywood, Cal., Mun. Code,

Ordinance 22-1194 (Nov. 7,2022) 2,8,35

West Hollywood, Cal., Mun. Code, Title 17, Art. 1,

Ch. 17.04, § 17.04.010-§ 17.04.020 ......... 5,18

West Hollywood, Cal., Mun. Code, Title 17, Art. 1,

Ch. 17.08, § 17.08.010 20

West Hollywood, Cal., Mun. Code, Title 17, Art. 5,

Ch. 17.36, § 17.36.010-§ 17.36.070 5, 7,11,12,18

West Hollywood, Cal., Mun. Code, Title 17, Art. 5,

Ch. 17.44, § 17.44.010-§ 17.44.040 13
 xvi

Cited Authorities
Page
OTHER MATERIALS

West Hollywood, Cal., Security Deposit Interest

Rate (due 2024 for security deposits held in 2023)
https://www.weho.org/home/showpublished
document/58272/638399576075370000 .................. 12

West Hollywood, Cal., Security Deposit Interest

Rate (due 2025 for security deposits held in 2024)
https://www.weho.org/home/showpublished
document/60599/638677230679230000 ................... 12
 1

PETITION FOR WRIT OF CERTIORARI

Petitioner James T. Ballard respectfully petitions for

a writ of certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the Ninth Circuit affirming the district

court decision is unpublished and reproduced in App. A-la.
The opinion of the district court dismissing Petitioner’s
claims is unpublished and reproduced in App. B-7a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1).

The Ninth Circuit entered its judgment of February 26,
2025. App. A-la. A petition for rehearing or rehearing
en banc was denied on April 17, 2025. App. C-20a. This
petition is timely filed under Rule 13.1 of the Rules of this
Court.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitutional Provisions

U.S. Const, amend. V: “nor shall private property be

taken for public use, without just compensation.”

U.S. Const, amend. XIV, § 1: “nor shall any State

deprive any person of life, liberty, or property, without
due process of law...”
 2

Statutory Provisions

CaL Civ. Code § 1954.52(c)(1): “An owner of real

property as described in this paragraph may establish
the initial and all subsequent rental rates for all existing
and new tenancies in effect on or after January 1,1999,
if the tenancy in effect on or after January 1, 1999, was
created between January 1,1996, and December 31,1998.”

Relevant provisions of the West Hollywood, Cal., Rent

Stabilization Ordinances are reprinted at App. 22a-72a.

INTRODUCTION

This petition challenges the dismissal with prejudice

of Petitioner’s complaint at the pleading stage under
Federal Rule of Civil Procedure 12(b)(6) by the district
court, as affirmed by the Ninth Circuit. Petitioner James
Ballard asserts that a plausible path exists to amend his
complaint and present a meritorious challenge to the West
Hollywood Rent Stabilization Ordinance (the “WHRSO”),
App. 36a, particularly as amended by Ordinance 20-1101U,
adopted March 16, 2020, App. D-22a, Ordinance 20-
1103U, adopted April 6,2020, App. D-26a, and Ordinance
22-1194, adopted November 7, 2022, App. D-30a.

This litigation, brought by Ballard—owner of two

modest rent-controlled apartment buildings in the City
of West Hollywood (the “City”)—alleges that the City,
at the direction of the City Council of the City of West
Hollywood and in conjunction with the West Hollywood
Rent Stabilization Commission (the “Commission”)
(collectively, “West Hollywood”), transformed a temporary
rent freeze and a temporary eviction moratorium, both
 3

adopted at the beginning of the pandemic, into long-term

financial benefits for tenants and the public at large at
the expense of rent-regulated property owners after the
health crisis had passed. Distilled down, the question is:
How far can a city expand rent control to advance general
socioeconomic policies before crossing constitutional
property protections?

Ballard alleged in his complaint that these ordinances

collectively violated his rights under the Takings and
Due Process Clauses of the U.S. Constitution by: (1)
retroactively stripping landlords of three years of accrued
rent increases after the health crisis had passed; (2)
arbitrarily capping city-wide rent increases at 3% to
deny landlords a fair return; (3) compelling landlords to
house tenants and unauthorized occupants, regardless of
whether they paid rent, from March 2020 through March
2023; and, (4) repeatedly extending the rent freeze and
the eviction moratorium to provide additional financial
benefits and occupancy protections to tenants, even
though by September 2021 the federal and state eviction
restrictions had ended and the City had reopened for
business, lifted shelter-in-place orders, and stopped
enforcing social-distancing and mask mandates, thanks
to vaccine availability starting in December 2020. See
Document 1 and Exhibits 1-19, filed on filed 6/4/2023
with the United States District Court Central District Of
California (Western Division—Los Angeles) in the Civil
Dkt. For Case #: 2:23-cv-04367-FMO-AGR.

Ballard argues that these actions constitute both

categorical and regulatory takings of core property
rights and violate due process consistent with this Court’s
decisions in:
 4

• Cedar Point Nursery v. Hassid, 594 U.S. 139,149

(2021) (Roberts, C.J.) (“Whenever a regulation
results in a physical appropriation of property, a
per se taking has occurred, and Penn Central has
no place.”)2;

• Eastern Enterprises v. Apfel, 524 U.S. 498, 549

(1998) (Kennedy, J., concurring) (“The case before
us represents one of the rare instances where the
Legislature has exceeded the limits imposed by due
process,” emphasizing retroactivity is disfavored.);
and

• Duquesne Light Co. v. Barasch, 488 U.S. 299,308

(1989) (Rehnquist, C.J.) (“If the rate does not afford
sufficient compensation, the State has taken . . .
without paying just compensation and so violated
the Fifth and Fourteenth Amendments.”).

The categorical takings arise from the retroactive

appropriation of vested rent increases and the mandate to
house tenants, whether they pay rent or not, in violation
of a property owner’s right to exclude, as well as from the
confiscation of rent increases and other rent-related losses
arising from extensions of the rent freeze and the eviction
moratorium, all without compensation. The due process
violations arise from the retroactive application of a vague
ordinance arbitrarily administered for general public
purposes unrelated to pandemic relief or excessive rent
increases. The regulatory takings claims are grounded
in the denial of a fail’ return, and the lack of any nexus

2. Referencing Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104, 124 (1978).
 5

or proportionality between the City’s policies and the

burdens imposed on landlords.

The defined property interests supporting Ballard’s

claims include: (1) the right to exclude, control, and
possess, inherent in property ownership; and (2) the
statutorily defined annual general adjustment (AGA), a
formulaic and rigid rent increase mechanism. WHRSO
Ch. 17.36; App. D-48a. For decades, West Hollywood
claimed annual adjustments ensured a “fair and just”
return for landlords. See WHRSO § 17.04.020; App
D-36a. West Hollywood cannot now simply dismiss
the significance of the entitlement it created and skirt
constitutional limitations.

In the courts below, West Hollywood categorically

asserted that rent control laws “do not constitute
unconstitutional takings . . . nor do they violate due
process.” See Dkt. 18, Page ID #410, 11.6-7. Ballard
responded that these ordinances go well beyond
permissible regulation. They function to appropriate,
redistribute, and recharacterize private property rights
under the guise of emergency response.

West Hollywood made a policy choice to place the

full weight of pandemic housing burdens on landlords.
When the health crisis passed, it did not relieve those
burdens—but entrenched them—transforming temporary
restrictions into permanent economic subsidies for tenants,
consistent with its broader policy to reduce housing costs
in real dollars over time for incumbent tenants, without
consideration of the impact such policies have on landlords
or private property rights. See Dkt. 1, # 12, Exhibit M
RS Rpt. 2017-18, Page ID #197, West Hollywood Needs
Affordable Housing.
 6

This case ultimately presents a question of

constitutional boundaries and regulatory balance. Ballard
does not challenge rent regulation in the abstract. He
challenges West Hollywood’s choice to convert emergency
health restrictions into long-term rent suppression,
without just compensation or meaningful property
protections, after years of pandemic restrictions and
mandates. The reciprocal side to a rigidly defined and
strictly enforced rent regulation regime that has been in
place for decades is the reasonable expectation that: (1)
modest, formulaic rent increases will not be confiscated,
and (2) general rent increase limits will not be arbitrarily
set so low as to deny a fair return. See Dkt. 1, Page ID
#19-21, 1125-26.

STATEMENT

Factual Statement

Unless otherwise noted, the following factual

statement is based on allegations made in the complaint
and supported by the attached exhibits. Dkt. 1 and
Exhibits 1-19. *

Temporary Emergency Ordinances at the Start of

the Pandemic

In early 2020, the City adopted emergency pandemic

ordinances affecting all owners of rent-regulated
properties. These ordinances: (1) suspended the application
of AGAs, (2) limited evictions for nonpayment of rent and
breaches of the lease, and (3) curtailed landlords’ control
over occupancy. West Hollywood, Cal., Ordinance 20-
1101U (Mar. 16,2020), App. D-22a; West Hollywood, Cal.,
 7

Ordinance 20-1103U (Apr. 6, 2020), App. D-26a. At the

time, these sweeping restrictions were framed as tools to
protect public health and safety, in alignment with federal,
state, and local mandates during the COVID-19 lockdown.

The City repeatedly emphasized that: (1) all emergency

measures were “temporary in nature and only intended
to promote stability and fairness within the residential
rental market in the City during the COVID-19 pandemic
outbreak,” and (2) the suspended AGAs would not be
available until “60 days after the expiration of the local
emergency.” App. D-23a (§1.L); App. D-26a-27a, 29a
(§1.0, §4, §4. A). Relief for landlords, in other words, was
promised 60 days after the end of the health crisis.

Both Ordinances were adopted under the City’s

emergency police powers and acknowledged that “[t]he
situation is unprecedented and evolving rapidly.” App.
D-23a (§1.K); App. D-26a (§1.N). It was a war against a
virus—until science, medicine, and vaccines brought the
health crisis under control in 2021.

Uninterrupted Accrual of Annual Rent Increases

Although the City froze rent increases, it did not

halt the accrual of AGAs under WHRSO § 17.36.020-
§ 17.36.030; App. D-48a-49a. The Rent Stabilization
Commission continued to calculate and publish annual
rent adjustments, each time expressly stating that the
increase “cannot be applied until 60 days after the local
emergency is lifted.” App. D-29 (§4, §4. A). The announced
adjustments were: 0.75% for 2020,3% for 2021, and 6% for
2022. See Dkt. 1, Page ID #47,1165.
 8

Despite a City Councilmember’s 2020 recommendation

that AGAs should cease accruing, the Commission’s
process remained unchanged from its inception in 1985.
See Dkt. 1, Page ID #30-31,1140.

Temporary Limitations Codified as Permanent

Restrictions

On November 7, 2022—well after the health crisis

had abated—the City adopted Ordinance 22-1194.
App. D-30a. This measure again affected all owners of
rent-regulated properties and codified the emergency
restrictions into permanent policy. It eliminated landlords’
rights to apply AGAs for 2020-2022 and imposed a flat 3%
annual cap on all future general rent increases. The City
relied on a vague and arbitrary mechanism under Section
2 of the ordinance to limit the March 1, 2023 increase to
3% (the “Section 2 Increase”). App. D-32a; See, e.g., Dkt.
1, Page ID #35, H44.

Ordinance 22-1194 functionally eliminated AGAs for

2020,2021, and 2022 through a four-part mechanism by:
(1) acknowledging the April 6, 2020 freeze; (2) justifying
the reduced 3% rent increase cap based on its opposition
to vacancy decontrol and the need for “certainty”; (3)
interpreting the Section 2 Increase as an AGA; and (4)
applying the reduced 3% annual rent increase cap to the
anomalous Section 2 Increase to eliminate the suspended
AGAs that the City had allowed to accumulate.

This approach eliminated the accumulated AGAs

without directly acknowledging they could no longer be
applied “60 days after the local emergency is lifted.” It
was legislation untethered from the structure and text
 9

of the WHRSO. The Section 2 Increase did not meet the

WHRSO’s criteria for an AGA, as it was not tied to CPI or
calculated by the Commission. By definition, the Section
2 Increase falls outside the bounds of what constitutes a
lawful AGA and yet the City still applied the 3% AGA cap
to the Section 2 Increase. West Hollywood implemented
the 3% increase despite the ambiguity of the textual
reference to “controls.” App. D-32a, 48a, 53a.

West Hollywood has long argued that landlords are

not entitled to profits and have no right to rent increases
that keep up with inflation. The net result is that landlords’
real dollar returns on occupied rental units diminish
incrementally over time, especially when inflation
exceeds 4% due to the reduced 3% annual rent increase
cap. Increased operating expenses and the costs related
to expanded tenant protections and maintaining aging
buildings, only worsen this imbalance.

The City justified these confiscatory regulations under

the guise of providing “certainty” to landlords. App.
D-30a, §1.A. But the benefits—direct and substantial—
flowed, and continue to flow, solely in one direction, from
landlords to tenants. That financial transfer cost the City
nothing.

Circumstances Had Already Changed

By late 2021, the circumstances that had justified

emergency restrictions no longer existed. Vaccines had
brought the health crisis under control. Businesses had
reopened. The City had largely returned to normal.
Nevertheless, West Hollywood extended pandemic-era
restrictions into 2023, with impacts that will persist until
 10

rents ultimately reset through vacancy decontrol, which

typically takes years and, in many cases, decades. See Cal.
Civ. Code §1954.52(c)(i); Dkt. 1, # 12, Exhibit M RS Rpt.
2017-18, Page ID #196 (“In the 21 years since vacancy
decontrol has been in effect, 64% of West Hollywood
apartments have turned-ovei' [sic] at least once.”).

In considering the balance between the rights and

interests of landlords and tenants, it bears noting that
neither the City nor the Commission collects the data
necessary to assess the profitability of rental housing
subject to the WHRSO. They also do not collect the data
needed to compare returns on rent-regulated housing with
businesses bearing similar capital requirements, risks,
and operational burdens. See Dkt. 1, Page ID #39-40,1150-
51. Thus, it is unclear how West Hollywood can evaluate
whether landlords are receiving a just and fair return.

West Hollywood argued in the lower courts that it

needed to eliminate the AGAs for 2020, 2021, and 2022
to halt the largest rent increase in City history, without
acknowledging that the extensions of the rent freeze
and the eviction moratorium caused the accumulation
of AGAs. See Dkt. 18, Page ID #410, 11.15-16. Rather
than transition out of the rent freeze in accordance with
Ordinances 20-1101U and 20-1103U—and in alignment
with federal and state action—the City instead delayed,
studying the potential tenant impacts of lifting the freeze
and the moratorium, and thereby increased the windfall to
all tenants in rent-regulated units regardless of income.
 11

Four Decades of Rent Control

West Hollywood’s commitment to tenant protections

and generalized rental benefits now spans more than
four decades. Since its incorporation in 1984, the City has
imposed strict regulations on landlords, enforced by civil
and criminal penalties. Yet its vision remains one-sided,
and West Hollywood continues to advocate for even more
restrictive rent controls.

West Hollywood argues that: (1) AGAs provide

landlords with a fair and reasonable rent increase annually,
and (2) landlords may increase rents upon vacancy,
consistent with California’s prohibition on vacancy control.
West Hollywood also asserts that landlords may use the
individualized rent increase application process to recoup
AGAs or address incremental rent suppression. However,
the application process was designed to address property­
specific imbalances due to capital improvements or unique
conditions. It was never intended to serve as a substitute
for the AGA. It is widely recognized as burdensome,
expensive, inefficient, outdated, inconsistent, speculative,
and accessible only to a very limited number of landlords.
See, e.g., Docket 1, #12, Ex. N, BAE Rpt. 2016, Page
ID 212, 216, 231-32, 234, 236-37; Docket 1, #14, Ex.
0, RSC Rpt. 2018, Page ID 276-77. More importantly,
the application process also has no bearing on facial
challenges. Yee v. City of Escondido, Cal., 503 U.S. 519,
534 (1992).

Closer scrutiny reveals that the WHRSO’s AGA

process is statutorily rigid. “The increase shall be
annually calculated by the Commissionf]” at 75% of
the CPI, now capped at 3%. WHRSO § 17.36.020; App.
 12

D-48a. “The amount of the annual general adjustment

shall be announced by the Commission on or before July
first of each year ...” WHRSO § 17.36.030; App. D-49a.
Landlords may raise rents only once annually. WHRSO
§ 17.36.050; App. D-50a-51a. The City does not assess
economic fairness based on operating costs or return on
investment and it has never allowed any flexibility in the
formula. Further, it does not carefully consider eleven
objective economic factors as the ordinance in Yee, 503
U. S. at 524-525, mandated, or even the six objective
economic factors and one tenant hardship factor allowed
by the San Jose ordinance in Pennell v. City of San
Jose, 485 U.S. 1,13-14 (1988) (“We accordingly find that
the Ordinance, which so carefully considers both the
individual circumstances of the landlord and the tenant
before determining whether to allow an additional
increase in rent over and above certain amounts that
are deemed reasonable, does not on its face violate the
Fourteenth Amendment’s Due Process Clause.”). The
AGA process is fixed, resolute, and unreasonable.
The 3% rent cap—before consideration of operating
expenses—is 2% below the 5% rate that simpler and safer
investments pay, as West Hollywood determined—after
the filing of the complaint—by averaging the interest rates
for savings accounts of five online FDIC-insured banks
and rounding to the nearest one-tenth of one percent for
interest due on security deposits in 2024 and 2025. See
Security Deposit Interest Rate for security deposits held
in 20 233 and 2024.4

3. https://www.weho.org/home/showpublisheddocument/
58272/638399576075370000
4. https://www.weho.org/home/showpublisheddocument/
60599/638677230679230000
 13

U.S. District Court for the Central District of

California

On January 3, 2024, the district court dismissed

Ballard’s complaint with prejudice. App. B-7a. It held that
Ballard’s claims were unripe and legally deficient, and it
denied leave to amend.

Crucially, the court construed the claims solely as

as-applied challenges and did not acknowledge the facial
challenges pleaded in the complaint. Ballard was afforded
no opportunity to argue the facial claims, as the court
canceled oral argument after West Hollywood raised its
finality and exhaustion arguments in its reply brief.

The court concluded that the rent increase application

process had not been exhausted and that it was not futile,
relying on the fact that Ballard had successfully used the
process more than two decades earlier when he first bought
and renovated the properties. The court did not engage
with Ballard’s allegations that the process had become
ossified, burdensome, inaccessible to most landlords,
and a cost-ineffective way to claw back the AGAs the
City had confiscated. See, e.g., Dkt. 1, Page ID #58-69,
1182-99; WHRSO Ch.17.44; App. D-53a-72a. The court
also did not address allegations that the individualized
application process was a property-specific auxiliary—not
a substitute—procedure under the WHRSO for increasing
rents. Id.

The court was also not swayed by Ballard’s contentions

that physical takings were garbed as rent regulation,
Cedar Point, 594 U.S. at 149, or that due process was
violated through the retroactive application of a vague
 14

ordinance administered arbitrarily for socioeconomic

purposes divorced from any negative externalities. See
Eastern Enterprises, 524 U.S. at 547-49. Instead, the
court dismissed Ballard’s due process claims, relying on
the legislative nature of the ordinance.

U.S. Court of Appeals for the Ninth Circuit

Majority Panel

In a divided opinion, the Ninth Circuit affirmed.

App. A-la. The majority concluded that Ballard’s federal
takings and due process claims were unripe and that the
complaint failed to plausibly allege a facial challenge.
Citing Sinclair Oil Corp. v. Cnty. of Santa Barbara, 96
F.3d 401 (9th Cir. 1996), and Washington State Grange v.
Washington State Republican Party, 552 U.S. 442 (2008),
the panel ruled that the complaint did not specifically
allege that the ordinances were unconstitutional in all, or
at least almost all, applications—a threshold requirement
for a facial challenge.

The majority panel resisted allegations and arguments

that: (1) there was no daylight between the harms Ballard
suffered and those suffered by every other landlord of
rent-regulated property; and (2) Ballard, like every other
landlord subject to the WHRSO, had a constitutionally
protected property interest in AGAs, including the ones
for 2020,2021, and 2022.

The majority further failed to address why amendment

would be futile, even when pressed by Ballard in his motion
for rehearing or rehearing en banc. App. C-20a. It also
upheld dismissal of procedural due process claims, relying
 15

on Hotel & Motel Ass’n of Oakland v. City of Oakland,

344 F.3d 959 (9th Cir. 2003), despite arguments that West
Hollywood disabled the rent increase mechanism and
failed to consider whether the rent restrictions provided
private property owners with a fair and just return on
their rental properties.

Partial Dissent by Judge Bumatay

Judge Bumatay dissented in part. App. A-6a. While

he agreed that the complaint failed to state a facial
claim, he emphasized that leave to amend should be
granted. Citing Moss v. U.S. Secret Serv., 572 F.3d 962
(9th Cir. 2009), he rejected the majority’s conclusion that
amendment would be futile.

He also argued—citing Hacienda Valley Mobile Ests.

v. City ofMorgan Hill, 353 F.3d 651 (9th Cir. 2003)—that
facial challenges are exempt from the finality requirement
under Williamson Cnty. Reg’lPlan. Comm’nv. Hamilton
Bank ofJohnson City, 473 U.S. 172 (1985), and contended
that the district court—not the Ninth Circuit—should
have considered the facial claim in the first instance.

REASONS FOR GRANTING THE WRIT

Rent Control Ordinances That Appropriate Vested

Property Interests, Impose Occupancy Requirements,
and Arbitrarily Cap Rent Increases Transgress
Constitutional Limits

Justice Thomas recently observed that “the

constitutionality of [rent control regimes] ... is an
important and pressing question,” adding that “in an
 16

appropriate future case, we should grant certiorari to

address this important question.” 74 Pinehurst LLC v.
New York, 218 L. Ed. 2d 66 (Feb. 20, 2024) (Statement
of Justice Thomas respecting denial of certiorari). His
concern echoes Justice Scalia’s dissent in Pennell, 485
U.S. at 19: “There is no reason thus to shield alleged
constitutional injustice from judicial scrutiny. I would
therefore consider appellants’ takings claim on the
merits.”

In Pennell, the Court considered a facial takings

challenge to a San Jose rent control provision that allowed
the city to consider a tenant’s financial hardship in denying
or reducing rent increases above 8%. Ultimately, however,
the Court did not decide whether the ordinance constituted
a facial taking. Instead, it dismissed the takings claim as
unripe because the provision had never been applied. Id. at
10. The Court emphasized that the ordinance provision in
question had never been applied and there was no evidence
how it might be applied. Id. Thus, Pennell did not reject
the constitutional challenge—it deferred it.

Justice Scalia’s dissent stressed the potential abuse in

shifting economic housing burdens to landlords to offset
tenant hardship and warned that such ordinances effect
an uncompensated taking. Id. at 20.

This petition presents an update on the very scenario

Pennell left unresolved. Here, Ballard alleges concrete,
city-wide harm suffered by all owners of rent-regulated
properties, based on: (1) the retroactive elimination
of accrued AGAs; (2) the rigid 3% rent increase cap
untethered from statutory text and function, and from
inflation, operating costs, expectations, and risks; and (3)
 17

the prolonged eviction moratorium and the extended rent

freeze, after the public health crisis had passed.

These actions implicate constitutional violations

through:

• Time: the extensions of the rent freeze and the

eviction moratorium; the delay in lifting restrictions;
the retroactive confiscation of AGAs; the accrual of
rent increases; and the loss of income and value over
time.

• Space: the mandates to house and not evict tenants

and other occupants—regardless of rent payment or
lease violations—who otherwise could be excluded
from private rental property.

• Dimension: the complete elimination of AGAs; the

arbitrary reduction of the annual rent increase limit;
and the magnitude of government interference in
the context of a strictly enforced rent regulations
that extracts economic benefits and property rights
from private property owners to benefit most of the
residents in the City.

The intersection of these violations impacts the very

shape of constitutional concepts of private property and
the limits on municipal police power.

The Annual General Adjustment Is a Distinct Property

Interest Around Which the WHRSO Is Built

This Court has made clear that identifying the

relevant property interest is the threshold inquiry in both
 18

takings analysis and due process analysis. See Murr v.

Wisconsin, 582 U.S. 383,395 (2017); Eastern Enterprises,
524 U.S. at 544, 549 (1998) (Kennedy, J., concurring); id.
at 556 (Breyer, J., dissenting) (“The question involved-the
potential unfairness of retroactive liability-finds a natural
home in the Due Process Clause, a Fifth Amendment
neighbor.”)

Ballard’s claims arising from the eviction moratorium

are based on interference with possessory control and his
right to evict tenants for breaching their leases. His claims
arising from rent confiscations around the rent freeze—
the retroactive confiscation of AGAs, the extension of the
rent freeze after the health emergency had passed, and the
arbitrary reduction of the rent increase limit to 3%—are
based on the statutorily created property interest in each
AGA. WHRSO Ch. 17.36; App. D-48a-52a. It is a property
interest that mirrors the rent increase considered in
Pennell, 485 U.S. at 4-8, 15-16. However, the WHRSO,
unlike the rent control ordinance considered in Pennell,
grants no discretion to the Rent Stabilization Commission
to withhold or recalibrate an AGA, thus deepening his
“legitimate claim of entitlement.” The Board of Regents
ofState Colleges v. Roth, 408 U.S. 564,576-78 (1972). The
AGA process is a non-discretionary, formula-based rent
increase that produces a specific rent increase. As such,
each AGA constitutes a discrete, government-created
entitlement. Each is calculated annually through a formula
tied to inflation, published publicly, and applied citywide
without administrative discretion. Id. Each is framed as
the means by which the City ensures landlords receive
no more than a fair return. WHRSO § 17.04.020; App.
D-37a. For decades, AGAs have functioned as a statutory
compact—one relied on by property owners and investors
alike.
 19

The legal framework governing what qualifies as a

constitutionally protected property interest supports
this view. This Court has repeatedly held that property
interests arise from existing rules and understandings
stemming from independent sources such as state law.
Murr, 582 U.S. at 397. In Phillips v. Washington Legal
Found., 524 U.S. 156, 164-65, 172 (1998), the Court held
that interest on trust accounts belonged to the client, not
the state, because state law attached ownership rights to
the principal and its earnings. See also Webb's Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155,162-64 (1980).

The Court has also recognized constitutionally

protected property rights in interest earned on lawyers’
trust accounts, raisins, liens, patents, air space, and
strawberry fields, in challenges raising classic categorical
takings claims. Brown v. Legal Found, of Washington,
538 U.S. 216,233-35 (2003) (interest on IOLTA accounts);
Horne v. Dep't of Agric., 576 U.S. 350, 360-61 (2015)
(raisins); Armstrong v. United States, 364 U.S. 40, 48
(1960) (liens); James v. Campbell, 104 U.S. 356,358 (1881)
(patents); United States v. Causby, 328 U.S. 256 (1946) (air
space above a chicken ranch); and Cedar Point, 594 U.S.
at 144 (strawberry fields).

For four decades, West Hollywood has woven the

WHRSO into a comprehensive and reticulated statute
that is framed around maintaining strict control over
rent increases. Through definition, function, procedure,
administration, and enforcement, West Hollywood has
treated each AGA as a separate and distinct property
interest. It has been the entitlement promised to landlords
by West Hollywood to ground the City’s refrain that it
provides owners of rent-regulated properties with a fair
 20

and just annual return. The City even brought each and
every annual general adjustment to the attention of the
district court in advancing its motion to dismiss. See, e.g.,
Docket 27, # 1 Attachment.

West Hollywood made the distinction between the

concepts of rent and rent increases when it first adopted
the WHRSO in 1985 and has institutionalized that
structure since through strict and rigid enforcement. See
WHRSO § 17.08.010; App. D-45a-46a. That tenacity and
the commitment is why Ballard expects that he should,
at minimum, be able to apply each AGA that the City
calculated as fair and just. That was the balance the City
promised and that is why West Hollywood should not be
able to back away from the distinct and separate property
interest it created.

West Hollywood arduously disagrees. The Constitution,

however, demands balance, and when a rent control regime
is strictly enforced and mechanically administered, the
consequence is a reasonable expectation that the modest
annual rent increases will not be confiscated and will not
be arbitrarily reduced to advance priorities so detached
from protecting tenants from excessive rent increases and
the COVID-19 virus that they can easily be characterized
as public subsidies.

Under our Constitution, however, property rights

are shaped by established and reasonable objective
expectations. Each AGA fits neatly within that perspective.
AGAs have never been discretionary grants. Instead, they
have always been formulaic, reliable, and integral to the
City’s strictly regulatory regime. The California Supreme
Court has affirmed that landlords possess a constitutional
 21

right to a fair return, and that rent stabilization

mechanisms must respect that right both procedurally and
substantively. See Kavanau v. Santa Monica Rent Control
Bd., 16 Cal. 4th 761, 771-73, 778 (1997); Fisher v. City of
Berkeley, 37 Cal. 3d 644, 683 (1984) (“[Although a fixed
profit amount may produce a reasonable or fair return
on investment for low-risk investments such as bonds ...
investment in rental units contemplates a higher risk and
hence, in times of high inflation and when viewed in the
long term, demands more than mere maintenance of an
existing profit amount.”); Cotati All. for Better Hous. v.
City of Cotati, 148 Cal. App. 3d 280, 294-95 (1983) (rent
regulations must ensure a reasonable profit to landlords).

To retroactively nullify the accrued AGAs for 2020,

2021, and 2022, and cap future increases below rates
of return on simpler, safer investments is to confiscate
distinct and identifiable property interests. As this Court
explained in Horne, 576 U.S. at 360 (Roberts, C.J.), a
physical appropriation of property gives rise to a per se
taking, regardless of the government’s reasons.

Further, West Hollywood cannot redefine away

constitutionally protected interests to escape liability. See
Tyler v. Hennepin Cnty., Minnesota, 598 U.S. 631, 638
(2023) (Roberts, C. J.) (citing Cedar Point, 594 U.S. at 155)
(Property rights “cannot be so easily manipulated.”). West
Hollywood is bound by the statutory structure it built.
Arguing that AGAs are not constitutionally protected
property interests is an argument for overturning Pennell
and permitting the unchecked expansion of rent control.
 22

Circuits Divided on Whether an Eviction Moratorium

Invades the Right to Exclude and Deepens Takings
Violations

The right to exclude is “one of the most essential sticks

in the bundle of rights that are commonly characterized as
property.” Cedar Point, 594 U.S. at 150 (citation omitted).
Yet for nearly three years, West Hollywood prevented
landlords from removing tenants and unauthorized
occupants even if they failed to pay rent or violated the
terms of the lease. That is a compelled occupation, not
regulation.

The majority panel below definitively affirmed the

district court’s ruling, which held that the defects in
Ballard’s claims are incurable and the complaint “lacks
merit entirely.” On this, however, there is a clear split in
the circuits. The Eighth Circuit in Heights Apartments,
LLC v. Walz, 30 F.4th 720, 724, 732-735 (8th Cir. 2022),
and the Federal Circuit in Darby Dev. Co. v. United States,
112 F.4th 1017,1035-36 (Fed. Cir. 2024), both emphasized
that the one-year eviction moratoria extinguished core
property rights without compensation and determined
that such restrictions—even though substantially shorter
than those at issue here—can support per se takings
claims. Both courts reasoned that the eviction moratoria
deprived landlords of their right to exclude tenants in
breach of their lease obligations.

By contrast, the Ninth Circuit and the Second Circuit

continue to take a much harder line against landlords.
In Cmty. Hous. Improvement Program v. City of New
York, 59 F.4th 540, 552 (2023), the Second Circuit held,
“[i]t is well settled that limitations on the termination of
 23

a tenancy do not effect a [physical] taking so long as there

is a possible route to an eviction.” Cert, denied, 144 S. Ct.
264 (2023). See GHP Mgmt. Corp. v. City of Los Angeles,
California, No. 24-435, 2025 WL 1787663 (U.S. June 30,
2025) (Statement of Justice Thomas respecting denial of
certiorari) (Ninth Circuit expressly acknowledged the
split in authority) (citation omitted).

West Hollywood’s argument that it merely regulated

landlord-tenant relations disregards the rule of Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
448 (1982): When the government authorizes a physical
occupation of property ... a per se taking has occurred
without regard to the public interests the regulation may
serve or the size of the taking. In Loretto, the permanent
installation of cable wires constituted a taking. Id. at
421. Here, landlords were compelled to continue housing
occupants until West Hollywood placed an end date on the
eviction moratorium, which finally came after months of
study and years of delay. In the Ninth Circuit, as in the
Second Circuit, when there is no recourse, there is no
urgency to revoke tenant benefits-especially when those
benefits cost the City nothing.

Rent Control Is Not Immune From Facial or Categorical

Challenges

The facial challenge permitted in Pennell cannot

be described as an outlier. 485 U.S. at 4-8, 15-16. This
Court in Cedar Point, 594 U.S. at 156-158, reaffirmed the
guidance of Koontz v. St. Johns River Water Management
Dist., 570 U.S. 595, 614-15 (2013) (Alito, J.), that “a per
se [takings] approach is proper” when the government
confiscates a specific and identifiable property interest. As
 24

Chief Justice Roberts explained, the “access regulation

amounts to simple appropriation of private property.”
Cedar Point, at 162.

This Court has repeatedly recognized that financial

value tied to a discrete property interest—such as funds
or income derived from land use—falls squarely within
the protection of the Takings Clause and may support
categorical challenges. Koontz, 570 U.S. at 613-14; id. 625
(Kagan, J., dissenting).

Here, the amendments to the WHRSO were applied

universally to all rent-regulated properties in the City.
They were categorical in both effect and application.
They confiscated vested entitlements, increased financial
burdens, and stripped owners of basic property interests
without compensation and without reasonable consideration
of the impacts on property owners.

West Hollywood, however, relied on the Court’s

decision in Yee, 503 U.S. at 519, to argue in the lower
courts that rent control regulations are categorically
immune from takings liability. But Yee is not a shield to
the challenge here. That case involved a facial challenge
to a rent control ordinance that did not: (1) impose a rent
freeze, (2) retroactively eliminate accrued AGAs, or (3)
command owners to house tenants whether they paid
rent or not. Yee considered whether Escondido’s reliance
on eleven objective factors in analyzing rent increase
requests by mobile home parks constituted a physical
taking where landlords had voluntarily entered the rental
market and retained the right to exit it. Id. at 524-525. The
Court found no per se taking because landlords retained
meaningful economic use and legal avenues for reasonable
 25

relief. Id. at 524-32. The case was not dismissed due to

ripeness, finality, or exhaustion.

The WHRSO, by contrast, offers none of the

procedural or substantive protections outlined in Yee. Now,
decades later, West Hollywood has inverted the optimism
of Yee to eliminate three years of AGAs, replace a decades-
old inflation-indexed formula with an arbitrary and fixed
3% rent increase, and permanently cap all future AGAs
at an arbitrary 3%. This legislation was adopted by West
Hollywood as it continued to compel landlords to house
tenants after the health emergency had passed.

In contrast, Yee emphasized that landlords were not

deprived of their ability to evict. 503 U.S. at 528. The
difference is striking as West Hollywood continued the
eviction moratorium and the rent freeze while studying
the impact of lifting the moratorium on tenants. Thus,
while Yee upheld an incremental rent control ordinance
that carefully considered objective factors related to
the economics of operating a mobile home park, West
Hollywood stripped away even the modest fairness and
balance that Yee deemed essential.

West Hollywood’s interpretation of Yee—that it

provides a blanket exemption from takings liability no
matter how extreme the restrictions—cannot withstand
scrutiny.

Temporary Interference with Property Rights

Constitutes a Constitutional Violation

The Takings Clause of the Fifth Amendment,

applied to the States through the Fourteenth, does
 26

not differentiate between permanent and temporary

intrusions on property. A taking that lasts days or decades
still constitutes a taking, and the government must pay
just compensation for the period during which private
property is commandeered for public ends. As this Court
emphasized in First English Evangelical Lutheran
Church of Glendale v. Cnty. ofLos Angeles, 482 U.S. 304,
318 (1987), “temporary takings . . . are not different in
kind from permanent takings.” See Cedar Point, 594 U.S.
at 153; Arkansas Game & Fish Comm’n v. United States,
568 U.S. 23, 32-33 (2012).

This doctrine is not theoretical. It applies fully to

the facts here. West Hollywood’s moratorium and freeze
were not brief regulatory delays, nor necessitated by
rebuilding or procedural review. They were extended
mandates imposed by ordinance, stripping rental property
owners of economic benefits and possessory control.
These are precisely the types of actions that require just
compensation. See Alabama Assn, of Realtors v. Dept,
of Health and Hum. Servs., 594 U.S. 758,765 (2021) (per
curiam) (“ [Preventing [landlords] from evicting tenants
who breach their leases intrudes on one of the most
fundamental elements of property ownership-the right to
exclude”); id. at 766 (“our system does not permit agencies
to act unlawfully even in pursuit of desirable ends”).

Importantly, the City elected to transition out of the

rent freeze and the eviction moratorium almost two years
after it had reopened for business by slashing the rent
increase limit to 3% and retroactively confiscating three
years of vested AGAs. The unfairness is conspicuous. The
health crisis had passed and, even if it had not, national
emergencies do not negate constitutional protections.
 27

United States v. Pewee Coal Co., 341 U.S. 114,115 (1951)

(Government seizure of mine during World War II for
572 months a clear taking); Kimball Laundry Co. v.
United States, 338 U.S. 1,3-4, 7,16 (1949) (compensation
required for commandeering laundry plant for near four
years); United States v. Petty Motor Co., 327 U.S. 372,
374, 380-81 (1946) (government compensation required
for leaseholders for a two-plus-year temporary taking);
United States v. Gen. Motors Corp., 323 U.S. 373, 375
(1945) (government required to pay short-term rental
value for occupying part of a building leased by a parts
company for one year); Int’l Paper Co. v. United States,
282 U.S. 399, 407-08 (1931) (government ordered to pay
compensation for authorizing a third party to interfere
with a mill’s water rights by diverting the river’s full water
flow for ten months).

Tahoe-Sierra Pres. Council v. Tahoe Reg’l Plan.

Agency, 535 U.S. 302 (2002), often cited to shield
temporary regulatory intrusions, is inapposite. That
case dealt with a moratorium on development during
planning—a future-facing, general freeze on new use—
not the government’s interference with existing income
streams and eviction rights. Here, Ballard was stripped of
active, vested property entitlements, not merely asked to
wait for a short period before exercising prospective ones.

Moreover, the government’s burden is particularly

acute where the deprivation is superimposed on a
group that is already subject to strict and burdensome
regulation. West Hollywood placed the full weight of
inflation and rent losses that accrued from the health
crisis on rent-regulated property owners. West Hollywood
did not spread the economic pain across the community.
 28

Instead, it selected a class of private citizens and required

them to subsidize the majority of the City’s residents.
This offloading of public burdens onto private parties for
general public purposes lies at the very heart of takings
jurisprudence. See Armstrong, 364 U.S. at 49 (“The
Fifth Amendment’s guarantee . . . was designed to bar
Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne
by the public as a whole.”).

The Ninth Circuit’s failure to recognize plausible

temporary and permanent takings claims, despite
the confiscation of entitlements and interference with
possessory control, conflicts with Supreme Court
precedent and effectively exempts rent control from the
constitutional protection. The majority panel erred by
leaning into doctrines of finality and exhaustion that
have been overturned or narrowed. Knick v. Twp. of
Scott, Pennsylvania, 588 U.S. 180, 191-95, 197-98 n.6
(2019) (Roberts, C. J.) (improper to recast an exhaustion
requirement as a component of finality), and Pakdel v.
City & Cnty. of San Francisco, 594 U.S. 474, 479-80
(2021) (per curiam) (“finality” should not be used to impose
procedural roadblocks once the government has firmly and
definitively imposed a condition or restriction on property).

Appropriations of AGAs and Confiscatory Rent Ceilings

Violate the Fair Return Doctrine and the Takings and
Due Process Clauses

Rent control, like public utility rate regulation, is

bounded by constitutional limits. Those limits include
the right of a regulated party to earn a fair return on
investment—sufficient to cover operational expenses,
 29

attract capital, and yield a profit commensurate with the

risk of the enterprise and its investment requirements.
This Court articulated the “fair return” doctrine nearly
a century ago in Bluefield Waterworks & Imp. Co. v. Pub.
Serv. Common, 262 U.S. 679, 690-92 (1923), reaffirmed
it in Fed. Power Comm’n v. Hope Natural Gas Co., 320
U.S. 591, 599-603 (1944) (a fair rate of return—meaning
a return that is both sufficient “to attract capital” and
“commensurate with returns on investments in other
enterprises having corresponding risks”), and applied it
most recently in Duquesne, 488 U.S. at 307-08.

California courts, including the California Supreme

Court in Kavanau, 16 Cal. 4th at 771-73, have recognized
that this standard applies to rent regulation. A rent
control regime is unconstitutional if it fails to ensure that
landlords can recover their costs and earn a return on
their property. A rent control law that does not permit
landlords to obtain a just and reasonable return is invalid.
Birkenfeld v. City of Berkeley, 17 Cal. 3d 129,165 (1976);
Fisher, 37 Cal. 3d at 683-84; Cotati Alliance, 148 Cal.
App. 3d 280, 294-95.

Yet West Hollywood’s regime fails that standard. By

eliminating AGAs for the years 2020,2021, and 2022 and
then capping future increases at 3%, the City has created
a regulatory environment where landlords cannot attract
capital or earn a return commensurate with the risks of
property ownership. In fact, West Hollywood takes an
already constitutionally suspect rent control scheme and
presses it further across the line. Collectively, the limits
ensure returns significantly below those of safer and
simpler investments.
 30

The math is clear, particularly as West Hollywood

has never calculated an AGA to provide landlords with
more than a fair return. As such, the elimination of AGAs
necessarily provides landlords with less than a fair return.
Landlords who once received 75% of inflation-adjusted
increases received none for three years, while property
costs—utilities, insurance, maintenance, and taxes—rose
dramatically. This is not reasonable regulation. And the
fact that the confiscatory rental rates may reset when a
property becomes vacant does not mean the confiscations
never occurred. The confiscations simply restart with
each new tenancy and recur across all rent-regulated
properties.

Even with this expansion, there is continued resistance

to hearing rent control cases and the long-simmering
split among state and federal courts on whether modern
rent control schemes satisfy constitutional fair return
standards. See, e.g., Guar. Nat. Ins. Co. v. Gates, 916 F.2d
508,509-10,515-16 (9th Cir. 1990); Michigan Bell Tel. Co.
v. Engler, 2&1 F.3d 587 (6th Cir. 2001); Jersey Cent. Power
& Light Co. v. FERC, 810 F.2d 1168,1177-78, 1184 (D.C.
Cir. 1987) (en banc) (Bork, J.) (presented allegations that
required reasoned examination, not summary dismissal).
Some courts, including many in California, have diluted
the doctrine to the point of meaninglessness, insisting
that regulation is valid so long as it does not threaten
insolvency. But that is not, and never has been, the
constitutional standard.

The fair return doctrine demands that property

remain economically viable under regulation. It protects
against schemes that, while facially neutral, functionally
extinguish the economic value of ownership. West
 31

Hollywood’s regime violates both that doctrine and the

constitutional foundations it rests upon. Certiorari is
warranted to reaffirm those protections and to prevent
cities from disguising expropriation as policy.

West Hollywood Cannot Extract Benefits Without a

Nexus and Rough Proportionality

The City’s actions fail under nexus and proportionality

requirements that govern land-use regulation. In a fully
transactional context, the unconstitutional conditions
doctrine bars the government from conditioning the
grant of a discretionary benefit on the surrender of a
constitutional right. As this Court held in Nollan v.
California Coastal Comm’n, 483 U.S. 825, 837 (1987),
and Dolan v. City of Tigard, 512 U.S. 374, 391 (1994), the
Takings Clause is violated when property is demanded
as a condition of a land-use permit unless there is an
“essential nexus” and “rough proportionality” between the
government’s demand and the effects of the proposed use.

At their core, these two limits relate to the

government’s extraction of land or money to offset
negative externalities caused by the activities of property
owners, such as developers burdening traffic, sewers, or
the environment. Here, there are no negative externalities
because landlords are simply continuing to provide
rental housing in accordance with existing laws. West
Hollywood’s argument that vacancy decontrol is a negative
externality caused by landlords may be in line with the
City’s philosophy, but it is not a negative consequence of
providing housing under California law. Landlords are
bringing rents up to market when units become lawfully
vacant. The very point of vacancy decontrol was to address
 32

the early excesses of local vacancy control laws, but

that has not tempered local rent control excesses. West
Hollywood, like a number of other municipalities, rejects
balance.

There is simply no nexus to an externality that justifies

the confiscation of AGAs or the annual suppression of
general rent increases. West Hollywood has simply
become too comfortable with confiscatory control of
rent-regulated properties to let it escape constitutional
scrutiny.

West Hollywood’s commitment to affordable housing

cannot overcome the nexus and proportionality restrictions
that limit the extent to which municipalities can reach into
the pockets of private property owners. It is even less
defensible when the regulatory purpose is to insulate
tenants from the general economic consequences of
the pandemic by placing all cost increases related to
regulated-rental housing on private property owners. In
that light, what started as measures to combat a health
emergency was studied and delayed into a general social
benefit program through the mechanics of extending
the rent freeze and the eviction moratorium and then
eliminating AGAs that were merely suspended.

The City’s confiscation of accrued rent increases

and denial of meaningful rent increases, in pursuit of a
social good, is no different from requiring a landowner to
dedicate land or money without justification. See Koontz,
570 U.S. at 614. Here, unlike developers, landlords are
preserving the very status quo West Hollywood desires—
stable, long-term rental housing. The City’s extractions
from landlords are not because they cause harm, but
 33

because they exist and the money they generate is easily

reached. That flips the logic of exaction jurisprudence
on its head and invites redistributive policies untethered
from constitutional constraints.

Regulatory Takings Claims Plausible Under Penn

Central’s Three-Prong Test

West Hollywood’s actions can also be framed plausibly

as a regulatory taking under Penn Cent., 438 U.S. at 123-
25, which considers: (1) economic impact; (2) interference
with reasonable investment-backed expectations; and (3)
the character of the government action.

Here, the impact is measured not only in the

confiscation of three consecutive years of AGAs, the
arbitrary reduction of rent increases through the 3% limit,
and the losses from the extended eviction moratorium,
but also by compounding losses over time. Every four
years, assuming inflation remains stable at or below 4%,
landlords lose the equivalent of one full AGA, based on an
annual 25% inflationary loss. When inflation exceeds 4%
those losses accelerate. This, in turn, creates conditions
ripe not only for market stagnation but also for a broader
breakdown in enterprise, innovation, development,
conservation, and maintenance within the City’s private
rental housing market due to the devaluation of rent-
regulated properties and the increased cost of capital
needed to build, buy, and operate rental housing.

The interference with investment-backed expectations

is equally stark. For decades, West Hollywood defined
and grounded the WHRSO around the modest, inflation-
tied AGA, which was designed and employed to provide
 34

landlords with an annual return. It is a measure and

a limit that implicates a multitude of small and large
decisions related to the financing, acquisition, disposition,
and management of rental housing. Suppressing that
measure makes it more expensive and less attractive to
provide rental housing in the City. Here, West Hollywood
is not only harming private property owners, the value
of regulated rental property, the rental market, and the
long-term availability of housing for tenants—it is also
eroding broader confidence in our system of government
and in the constitutional guarantees that protect private
property.

The character of the government action also weighs

against West Hollywood and in favor of a taking. The
City is not regulating nuisance, pollution, or congestion.
It is redistributing income from landlords to tenants
through occupancy mandates and rent suppression based
on a municipal policy that holds rental properties up as
a funding source for general public programs. This is
particularly true when the government acts retroactively
and arbitrarily and when it seeks to justify those acts
based on a recharacterization of the past. That is not
regulation—it is appropriation by another name. See
Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467 U.S.
717, 730 (1984).

In sum, West Hollywood fails all three prongs.

Its claim that “certainty” offsets the confiscation of
annual rent increases only underscores how imbalanced
considerations have become under rent control in the City.
 35

Due Process Was Violated Through Arbitrary,

Retroactive, and Vague Regulations and Administration

California law recognizes that rent control violates

due process when it deprives landlords of a fair return,
imposes arbitrary limits, lacks fairness, employs unfair
procedures, or fails to consider the burdens imposed on
rental housing providers. See, e.g., Kavanau, 16 Cal.4th
at 761; Fisher, 37 Cal. 3d at 687 (“the magnitude of the
job to be done” necessitates a workable, non-burdensome
procedure). West Hollywood violates all five. See Lingle
v. Chevron U.S.A. Inc., 544 U.S. 528, 543 (2005) (distinct
constitutional functions of takings and due process
protections).

The details of those violations bear repeating.

First, the City imposed a 3% cap without empirical
consideration of landlord hardship. Second, it relied on
ambiguity to restrict the Section 2 Increase to 3%. Third,
it retroactively eliminated AGA entitlements for 2020,
2021, and 2022 through the silent interplay of Section 2
and Section 3 of Ordinance 22-1194. App. D-32a-33a.
Fourth, it relied on doctrinal connections so distant they
are better characterized as grants to tenants, including:
(a) certainty offsets confiscation, and (b) vacancy decontrol
justifies the confiscation of AGAs. Fifth, it confiscates
defined and distinct private property rights to fund
general socioeconomic benefits that the City could not—or
would not—fund itself.

Collectively, these actions combine to define an

arbitrary exercise of municipal power, particularly after
West Hollywood began by claiming that: (a) the rent freeze
was a temporary health measure necessary to combat
 36

COVID-19, and (b) AGA entitlements for 2020,2021, and

2022 were merely suspended “until 60 days after the end
of the urgency.” App. D-23a (§1.L); App. D-26a-27a, 29a
(§1.0, §4, §4.A).

As Justice Gorsuch warned, due process prohibits

bait-and-switch tactics, especially where government
dangles a remedial path only to revoke it later. Off. of
United States Tr. v. John Q. Hammons Fall 2006, LLC,
602 U.S. 487, 518 (2024) (Gorsuch, J., dissenting). That is
precisely what occurred here. West Hollywood promised
the rent freeze and the eviction moratorium were only
temporary pandemic measures—until they weren’t. The
temptation of reaching deeper into an easily accessible
funding source proved too much.

CONCLUSION

Ballard has outlined a detailed-and-plausible theory

of constitutional injury. He has identified multiple
property interests—the right to rent increases, the right
to exclude, the right to a fair return—and presented
specific allegations of harm tied to concrete legislative and
administrative actions. If those allegations are incomplete,
the proper remedy is amendment, not dismissal. Fed. R.
Civ. P. 15(a). This Court has long held that pleadings need
only state a plausible claim, not prove it in full. See Tyler,
598 U.S. at 637 (“that is enough for now”); Ashcroft v.
Iqbal, 556 U.S. 662, 680-81 (2009).

In this case, the Court should intervene to reaffirm

that plausible constitutional property claims deserve
adjudication on the merits, not dismissal on procedural
grounds. Granting leave to amend here would reaffirm the
 37

foundational principle that no person may be deprived of

property without due process of law, and that government
may not take property—temporarily or permanently—
without just compensation. Moreover, this Court can
provide the needed clarification without immediate and
systemic disruption to any major rent regulation regime.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

James T. Ballard
Petitioner Pro Se
148 North June Street
Los Angeles, CA 90004
(323) 333-3616
[email protected]

July 14,2025