*1 No. 23866. Mar. [S.F. 1979.]
DONALD W. al., AGINS et Plaintiffs and Appellants, al., CITY OF TIBURON et Defendants and Respondents.
Counsel and G. Hearn for Plaintiffs
Reginald Appellants. Zumbrun, as Ronald A. Elleene A. Kirkland Thomas E. Hookano and on Amici Curiae behalf of Plaintiffs and Appellants. H. Richard Conn, T. and I.
Robert Attorney, Gary Ragghianti City Breiner, and for Defendants Respondents. Deputy City Attorneys, General, Shute, Jr., H. Robert E. Clement Evelle J. Younger, Attorney Jacobs, Connett, General, C. and Richard Assistant Deputy Attorneys General, of and Curiae on behalf Defendants as Amici Attorney Respondents.
Opinion
RICHARDSON, condemnation J. —We review inverse availability a has a landowner’s when a public agency adopted remedy will conclude which limits of his We ordinance substantially both the constitu- a landowner so aggrieved challenge although may to his which it and the manner in is ordinance applied tionality establish the either ordinance property by seeking invalidity mandamus, relief or not he declaratory may recover on of inverse condemnation. damages theory Tiburón, Plaintiffs own five acres of land unimproved 1,676 acres, Marin Tiburón has an area of County. population 6,000, Francisco, and because its to San its approximately proximity facilities, climate, and other is aquatic temperate geographic advantages, desirable suburban residential area. Plaintiffs’ real is very views of San Francisco and was ridgeland, possesses Bay, acquired by for residential plaintiffs development.
Tiburón, California, like other state law to every city required by other “A land use prepare general plan containing, among things, element which distribution and designates proposed general general business, location and extent uses of land for housing, industry, . . . and other and uses land. open space categories private The land use element shall include a statement of the standards of recommended for the various population density building intensity Code, districts other covered (Gov. § territory plan.” *5 (a).) subd. entails careful
Routinely, development general plan examination of cities, numerous social and economic factors. Many those which are too small to a staff maintain of sufficient size especially and technical to undertake such a advice of seek the expertise project, consultants. The are recommendations of these consultants consid- expert ered when the local its governmental entity prepares general plan.
In 1972 Tiburón consultants, retained two Williams & January private Co., Mocine and Dean Witter & Incorporated, prepare advisory 1972, The Williams on issued October focused reports. report, possible land and recommended that Tiburón designations attempt acquire “a substantial of Tiburón for Plaintiffs’ portion ridge” “open space.” was identified in the those one of property report parcels property were which suitable The Witter acquisition open space. report, 1972, dated recommended that the lands be July purchase open space $1.25 financed issuance million general obligation The bonds. resolution Tiburón Council City subsequent approving sale these did not bonds authorize specifically plaintiffs’ acquisition or refer to it. directly 1973, N.S., 28, effective June Tiburón Ordinance No. adopted By did not mirror the modifications which drew but upon widespread zoning ordinance, Under the land was consultants’ reports. plaintiffs’ designated “RPD-1,” as a “Residential Planned defined Ordinance No. N.S. by uses of land so and Zone.” The authorized Development Open Space uses, and are (2) open space designated one-family dwellings, uses. The permissible density accessory buildings accessory is “not less than .2 nor more than 1 unit dwelling per gross buildings As acre” on other provisions. applied plaintiffs’ depending specified of five units or a five acres “RPD-1” means a maximum dwelling minimum of one. to build five Whether permitted dwelling plaintiffs units, fewer, architectural will depend upon particular design results of the environmental contemplated required impact report. their
Plaintiffs have never made to use or improve application N.S., Ordinance No. 124 nor have Tiburon’s following they adoption to. either or received definitive statement as how many sought any 15, 1973, units could build on their land. On October dwelling they $2 filed a claim of Tiburón in the amount of plaintiffs against million of Ordinance No. 124 N.S. had alleging adoption the value of their completely destroyed city rejected 12, claim on 1973. November 4, 1973, eminent
On December Tiburón filed a domain complaint 1974, but on November filed plaintiffs against acquire property, a notice of abandonment of the as then authorized Code proceedings 1255a, (This of Civil Procedure section subdivision section was (a). Stats. ch. The trial court entered its 1.)§ repealed by *6 of of the action on 1975. The dismissal judgment May city paid $4,500 for their incurred plaintiffs during pen- necessary expenses 1255a, of the action to section subdivision which then (c), dency pursuant fixed of a condemnee abandonment of a condemnation rights upon include, was exclusive and the section did not as proceeding. remedy an element of financial of the damages, impairment during pendency eminent of domain action the owner’s to sell. there right Accordingly, W^s no cause further of action available to reason of the plaintiffs by city’s eminent domain proceeding.
On June filed their in the Marin plaintiffs complaint County Court of Tiburón and Does One Superior against through Fifty action, as a first cause of a claim in $2 inverse condemnation for alleging, action, million in a second cause of damages requesting, declaratory relief, other that Ordinance No. 124 is N.S. asserting, among things, unconstitutional in that it “constitutes a of taking [plaintiffs’] property without of payment compensation.” just
Defendants’ demurrer the first cause of action (inverse general condemnation) was sustained without leave to amend. Similarly, demurrer to the second cause of action was sustained relief) (declaratory with 10 leave to amend. Plaintiffs declined amend their second days cause of action and from the of plaintiffs appeal ensuing judgment dismissal with prejudice.
Plaintiffs contend that the limitations on the use of their land the ordinance constitute an unconstitutional of imposed by “taking without of for which an [plaintiffs’] property just payment compensation” action in inverse condemnation will lie. Inherent in the contention is the which, local of exercise its in a argument entity’s police power case, exceed constitutional limits is to the lawful given may equivalent of eminent domain taking property by necessitating thereby payment We are unable this compensation. accept argument believing that, view to be while such action invalid is preferable governmental excess, because its in eminent domain remedy by way damages not made available. This conclusion is thereby supported by leading Nichols, (1 Eminent Domain rev. (3d 1978) ed. Nature and authority Power, 1-116 1.42(1), 1-121), § who Origin his pp. expresses view in this manner: “Not anis actual under only physical appropriation, exercise effect an exercise attempted police power, practical domain, of eminent but if is so power regulative legislation unreasonable or arbitrary virtually deprive person complete use and of his it comes within the of the law enjoyment property, purview of eminent domain. Such is an invalid exercise legislation police since it is unreasonable It is invalid as an power clearly arbitrary. exercise eminent domain since no is made power provision ” added.) (Italics compensation.
We have
to the
nature of the
previohsly pointed
general
appropriate
In State
(Veta)
suclV'cases.
Court
Superior
of California
*7
497,
Similarly, alleging deprived him of all use of his land substantially may attempt through declaratory relief or mandamus to invalidate the ordinance as excessive regulation violation of the Amendment to the United States Constitution and Fifth I, however, 19, not, article section of the California Constitution. He may elect to sue in condemnation and transmute an excessive inverse thereby use of the into a lawful for which police power taking compensation eminent domain v. must be Friedman (See (1978) paid. City of Fairfax 667, 678 To the extent that Cal.App.3d Cal.Rptr. Eldridge [146 Palo Alto 575], Cal.App.3d it is contrary, expressly disapproved. clear,
There is a direct and constitutional basis unquestionable for the Amendment V of the United States protection private property. Constitution that “No shall be . . . of . . . provides person deprived law; without due nor shall be taken property, process private property use, without In concert with the public just compensation.” foregoing I, Fifth Amendment article section of the California language Constitution mandates that “Private be taken or property may damaged when ascertained unless only just compensation, by jury waived, to, for, has been or into court the owner.” paid sense, in a has been defined. The
“Property,” legal broadly United States Court has said that the term is not Supreme “property” used in “the and untechnical sense of the with vulgar physical thing to which the citizen exercises law. . . . respect rights recognized by in the citizen’s relation group rights inhering [Instead it] denote[s] to the as the use and of it. . . . physical thing, right possess, dispose The constitutional is addressed to sort of interest provision every (U. citizen S. v. General Motors 323 U.S. may possess.” Corp. 311, 318,
377-378 L.Ed. 65 S.Ct. 156A.L.R. 390].) While acknowledging power preserve government of life for its citizens improve quality through regulation land, use of we cannot countenance the service of this private legitimate need destruction of uncompensated private property rights.
274 Such Fifth Amendment have been the property rights equated by constitutional draftsmen with the cherished personal protections against self-incrimination, double and the of due of jeopardy, guarantee process law. These the same amendment. rights protected by
In
the constitutional
of the landowner
the
balancing
rights
against
needs of
we do not
well
legitimate
government
established
ignore
In
Coal Co. v. Mahon
In Superior 542 P.2d we examined 237], available remedies directly problem landowners and held that inverse condemnation does not aggrieved in lie in which actions reduction the mere zoning complaint alleges value, and that market action which decreases the zoning merely market value of does not violate the constitutional provisions HFH, In Ltd. forbidding uncompensated taking damaging we noted “This case does not we therefore specifically present, decide, do not of entitlement to in the event a compensation question forbade all use of the land regulation substantially question. We leave another fn. italics in (P. day.” question original.) We reach that now issue. it HFH,
While is true that the land uses which were Ltd. regulated commercial, were we find no reason to it on that basis from distinguish *9 residential, similar situations in which the affects land used for regulation recreational, or other or to extend the additional relief of purposes, inverse condemnation to the owners noncommercial (For discussion of a which recommends the extension of a contrary analysis context, Ellickson, in a noncommercial see Suburban damages remedy Growth Controls: An Economic and 86 Yale L.J. (1977) Legal Analysis 385, 507-511.)
We are
various
considerations
the view that
persuaded by
policy
inverse condemnation is an
and undesirable
inappropriate
remedy
cases in which unconstitutional
regulation
alleged.
expanding
of our cities and suburban areas
with a
developments
coupled
growing
awareness of
resources,
our natural
necessity
preserve
including
us,
land around
has resulted in
attitudes toward the
changing
regulation
of land use.
of this historic trend is not new. The United
Recognition
States
Court
observed more than 50
Supreme
perceptively
years ago
with the
of time and increased concentration of
passage
people “prob-
lems have
and
are
which
and
developed,
constantly
developing,
require,
will continue to
additional restrictions in
of the use and
require,
respect
lands in urban communities.
occupation
private
Regulations,
wisdom,
which,
conditions,
as
necessity
validity
applied
existing
are so
sustained,
are now
apparent
they
uniformly
century ago,
even half a
would have been
century ago, probably
rejected
arbitrary
sustained,
Such
under
oppressive.
regulations
complex
conditions of our
. . . And in this there is no
for while
day,
inconsistency,
varies,
constitutional
never
of their
meaning
guaranties
scope
must
or contract
to meet
the new and different
application
expand
conditions which are
within the field of their
constantly coming
opera-
world,
In
tion.
it is
that it should be otherwise.”
changing
impossible
(Euclid v. Ambler
Co.
272 U.S.
303, 310,
386-387
L.Ed.
S.Ct.
In
since Euclid the
abstract
under
century
foregoing
principles
the force of
have coalesced into a
functional
experience
specific
require-
ment.
must be
which their
Community planners
permitted
flexibility
observed,
work
As we ourselves have
“If a
requires.
recently
governmen-
tal
and its
officials were held
to a
claim
entity
responsible
subject
inverse condemnation
because a
of land was
merely
parcel
designated
on
one of these several authorized
potential plans,
process
halt,
would either
to a
or deteriorate to
community planning
grind
of vacuous
the future use of land.”
publication
generalizations regarding
Co. v.
San Buenaventura
10 Cal.3d
(Selby Realty
City of
799,
We that the anof inverse condemnation envisage availability in these situations would another threat control yet pose legislative over land-use determinations. It has been noted that “The appropriate costs benefits is a In weighing essentially legislative process. ordinance, assesses the enacting zoning legislative body desirability of a on the will not be program assumption compensation required to achieve the of that ordinance. that a objectives Determining particular land-use control is an function requires compensation appropriate whose function includes of individuals judiciary, protection against excesses of But it seems a government. usurpation legislative power a court to force Invalidation, rather than forced compensation. compensa- tion, would seem be the more means of expedient remedying Scharf, excesses.” & (Fulham Inverse legislative Its Condemnation: Availability Ordinance Challenging Validity Zoning 1450-1451; Bowden, Stan.L.Rev. see also Battles on the Legal Coast: A Review the Rules Coastal Zone Manage- California ment J. 273.) Other reveal themselves when the land use budgetary consequences control is exercised means the initiative. in the nature by “Legislation can be and has been enacted a direct zoning people through voters, Are initiative. the initiative also to have this power, unwelcome commit funds from the power inadvertently The extension the mere compensation treasury? logical requiring enactment of a harsh measure be indicates that the answer would the affirmative. for fiscal if this chaos would be potential great L.J., were result.” at (28 italics in Hastings supra, p. original.) combination, In the need for of freedom in preserving degree function, the land-use and the financial force which planning inhibiting inheres in the inverse condemnation us that on balance remedy, persuade relief rather than inverse condemnation is the mandamus declaratory relief under the circumstances. appropriate clarified the nature of the remedies available to an
Having landowner, we now consider whether owners aggrieved us relief. We conclude that before established right declaratory did not. they in a mere diminution in the
An ordinance which on its face results Court, HFH, In Ltd. v. value of is not se per improper. Superior *11 in which reduced the 15 Cal.3d we examined a zoning supra, change $400,000 $75,000. We concluded that no from to value of property mere in the value of was available for a decrease By property. we truism which had been this acknowledged practical holding Justice more than 50 in the Mahon case: Holmes expressed by years ago values incident “Government could on if to some extent hardly go without for such could not be diminished paying every change in the law. under an As some values general recognized, enjoyed long limitation and must to the implied yield police power.” (Pennsylvania Mahon, Coal v.Co. 260 U.S. 413 L.Ed. at supra, at p. p. as we must the that whether a
Accepting general proposition is excessive in situation involves regulation any particular questions case, on the facts each we hold that a degree, turning zoning individual ordinance be unconstitutional and to invalidation when may subject only its effect is to the landowner of all reasonable use of deprive substantially his The ordinance before us had no such effect. property. According ordinance, note, take the RPD-1 which we wording may allows on their build between one and five residences plaintiffs of their land is This belies claim that plaintiffs’ development were forever of the use which prevented. cognizance plaintiffs Taking entitled to make of their land the trial court was in that finding justified entire the ordinance did not interfere with plaintiffs’ unconstitutionally court acted decrease its value. The trial use of the land or impermissibly law, not, matter of were as a determining plaintiffs properly to a relief. entitled favorable declaratory judgment activities,”
Plaintiffs also that the city’s “precondemnation argue which recommended those the authorization studies acquisition being and the land for and bonds for its purchase, filing plaintiffs’ open space domain were so and abandonment of eminent proceeding, subsequent for an action for inverse unreasonable as basis provide separate 278
condemnation. Plaintiffs err and we do not find their reliance persuasive on Whittier Cal.3d 39 Klopping City [104 P.2d 1345], contention. support involved a for the decline in market value Klopping plaintiff’s recoveiy result an unreasonable in the institution of eminent delay condemn, domain announcement of intent to proceedings following other unreasonable conduct to condemnation. In the matter before prior no us there was such or conduct. Tiburón instituted eminent delay domain less than six months after Ordinance No. 124 N.S. proceedings It was is manifest that land-use discussions and adopted. general planning related elected officials must be both decision-making by unhampered neither constitutes a public. Together singly, process “taking” under consideration. other conclusion would violate Any sound public policy.
Our have courts appellate recognized appropriate controlling made Cal.3d clear principles. “Selby [supra, Klopping [supra, 110] was no Cal.3d for a claim that support planning designations 39] *12 Terminals, constitute Inc. v. San Francisco Conser takings.” Bay (Navajo vation etc. Com. 46 4 As was (1975) 108].) Cal.App.3d Cal.Rptr. [120 noted in Walnut Creek v. 73 City Leadership Housing Systems of . . the of “. inclusion the for 690], Cal.App.3d [140 property use in a does not rise to a cause of action. If public general plan give a bond election and to secure funds for calling urging passage public constituted a the so would be to suit purpose taking, agency subject acting whether or not the issue carried. The expression political preference cannot be so 622-623.) burdened.” (Pp. the interests here
Recognizing protected constitutionally property involved, we also the reasonable latitude which must afforded be accept in officials the for and land public planning implementation legitimate use These twin will be for the served goals. purposes by preserving landowner, cases, in or relief mandamus reme- appropriate declaratory However, the dies. use of inverse condemnation with its imposition view, would, in the our money damages upon public entity unwisely inhibit the and exercise of a valid proper police necessary power. is affirmed. judgment
Bird, J., J., J., J., Newman, J., Tobriner, Mosk, Manuel, C. concurred. J., taken or for CLARK, be Dissenting. may property damaged —“Private . first to . the when . . has been . . paid only just compensation Const., I, 19; (Cal. as added.)
owner.”
art.
italics
used in
§
“Damage,”
constitutional
has
included diminution in intrinsic
always
provision,
value even when
short
actual
or
invasion.
falling
taking, spoilation
(Reardon
San
P.
v.
Francisco
It that, be must clear to all of us alleged plaintiffs, Tiburón has decided order political process its life to maintain what is preserve way already among highest state,1 land residential values in the certain of its must owners property sacrifice use of their lands. Such thus including plaintiffs’ lands — —are have been order or enhance the value alleged damaged preserve of undisturbed land. This is the clearest of our wherein examples system “ ‘to functions sacrifice the individual to the and it seems community, difficult in to show reason should not very why [City pay Tiburón] which it the value ....’” (Bacich impairs destroys Board Control P.2d (1943) Cal.2d considerations in when a Recognizing policy resolving question must be and when it be deemed “taking” paid by government may function, intrusion incident merely permissible governmental United States Court stated has factual “is consideration Supreme extent the diminution When it reaches a certain [of value]. in most if not all cases there must be an exercise of eminent magnitude, domain and to sustain the act.” Coal Co. v. compensation (Pennsylvania *13 393, 322, Mahon 260 (1922) 325, 158, U.S. 413 28 L.Ed. 43 S.Ct. [67 A.L.R. 1321].) What diminution can there be than where —as greater have and the of Tiburón has that admitted plaintiffs alleged City here — the ordinance of “has the of value complained completely destroyed Plaintiffs’' or . . use whatsoever .”? We have property any purpose said the that our constitutional “underlying purpose provision inverse —as well as is ‘to the distribute ordinary through —condemnation the loss the inflicted individual the community upon by making public ‘to . socialize the burden . . —to afford relief [citation]; improvements’ the landowner in cases in which is unfair to ask him to bear a it burden that should be assumed v. Court (Holtz by society’ Superior [citation].” 296, 345, 3 Cal.3d 475 P.2d If those words (1970) 441].) Cal.Rptr. have at the are all must be case where this they any meaning 1 Itis the demurrer that the and admitted alleged by plaintiffs’ complaint city’s by has Tiburón “the land value acre for areas the State per suburban highest California.” course, deem not the bound
applicable unless, majority they — the rule the honored of law which court on a demurrer from prevents factual matters to matters well in the com- finding contrary pleaded 601, Serrano Priest (See, 5 Cal.3d plaint.2 487 P.2d its on the majority opinion attempts justify judgment ground
that
are entitled to relief at all—must look to some
plaintiffs
they—if
other than inverse
{Ante,
While
condemnation.
remedy
to
272.)
p.
purporting
that the Fifth Amendment mandates
shall
recognize
“private property
use,
not be taken for
without
the
just compensation,”
“ ‘constitutional
is addressed to
sort of interest the citizen
every
provision
”
and that
{ante, 273),
“we cannot
countenance
service
may
p.
possess’
need of
government
[the
improve
quality
life]
destruction of
uncompensated
{id.),
private property rights”
majority
refuse to follow these
Their refusal
on their
precepts.
grounded
HFH,
mistaken
court’s
this
earlier decision in
Ltd. v.
analysis
Superior
Court
In HFH the held that inverse condemnation does not lie in a majority action when mere reduction in market downzoning complaint alleges That value. case stands for that a expressly proposition ordinance which decreased the market value of does “merely property” not violate constitutional necessarily provisions “forbidding uncompen sated Court, or (HFH, Ltd. v. taking damaging” Superior If, HFH, 15 Cal.3d 518.) as the held in the difference supra, majority between value on one hand and “merely decreasing” on interest the other is one of “taking” degree, majority view of admitted the ordinance “has today allegation —in the value of completely destroyed plaintiffs’ property any purpose use whatsoever” —obliterate that distinction. Under today’s holding inverse no condemnation is an available short of longer remedy perhaps — (cid:127) an owner —whatever the harshness of government actually dispossessing The distinction which the zoning regulation. purport majority draw in has HFH been and that case no
carefully rejected provides *14 for decision. support today’s to insufficient to 2 Conclusionary allegations damage support against — (See,
demurrer —a in inverse Hecton ex rel. complaint condemnation. v. People Dept. of (1976) 230].) 58 653 the Cal.App.3d Cal.Rptr. Transportation Additionally, particular [130 (Id., 657.) facts of the case must be set out the at have Plaintiffs complaint. p. alleged with to and significant activities particularity taking place prior factual constituting the inverse condemnation. also the lack of They reasonable beneficial allege remaining (Cf. from (1976) these activities. Pinheiro Marin 60 resulting v. County Cal.App.3d 323, 328 633].) Cal.Rptr. [131
281 this court has adhered to rule that a harsh Until its today, zoning to rise inverse v. (See condemnation. gives regulation Klopping City of 39, rule, 1, 8 46 500 Whittier Cal.3d P.2d The (1972) Cal.Rptr. [104 moreover, . “The . . compelled by Legislature: Legislature hereby that this is not declares article intended and shall [Open-Space Zoning] construed, not be ... to to exercise its authorizing city power adopt ... an ordinance in a manner which . . will. open-space zoning damage use without the private property compensation payment just Code, 65912; also, Code, However, therefor.” see (Gov. 51073.) Gov. § § rule and direction in established. majority reject legislative the recent case of v. Palo Alto 57 disapproving Eldridge City of den. 1976). That Cal.App.3d (petn. hg. July 575] concluded, case involves a harsh ordinance. The court particularly zoning after decisions, a detailed review “that valid pertinent zoning ordinance nevertheless so as to amount to a may operate oppressively thus landowner a in inverse taking, giving aggrieved right damages condemnation.” at relied on (Id., 621.) p. “leading authority” by {ante, is in with 272) Nichols (See, on majority p. agreement Eldridge. Power, Eminent Domain rev. 1978) ed. Nature and (3d Origin 1-121; 2 1-116 on Domain 1.42(1), § Nichols Eminent (3d pp. 6.3, rev. ed. and 1978) 6-65.) § p. Taking Damage,
When a restriction is so harsh as to transcend a constitutionally is a fact be determined trial protected right question by rather than demurrer. v. (See Wilkins San Bernardino City of Alto, Cal.2d 338-339 P.2d Palo 542]; Eldridge City supra, well 628.) Plaintiffs have a cause of action in Cal.App.3d pleaded condemnation, inverse and should be afforded an opportunity prove their allegations. real issue is the extent which a court will
Today’s permit —even intrusion into a encourage governmental agency constitutionally — intrusion; area. The we must condone protected majority argue greater that we must attitudes toward of land regulation recognize “changing use” must {ante, 275); be p. community planners permitted which work {ante, 275); the use of inverse flexibility requires p. condemnation have “will effect the exercise of chilling upon police “ at a local level” and ‘will powers regulatory discourage implementa- tion of strict or innovative favor of measures measures in which planning ” traditional, are less safe’ more {ante, 276); stringent, p. fiscally
282 a ordinance a that enactment being legislative essentially in should cease inverse condem- courts affording legal remedy process, nation.3 California decision henceforth in effectively pronounces
Today’s
in
title to
no
be held in fee
but rather
real
will
simple
longer
trust for whatever
and uses
purposes
exercising
governmental agency
elects,
While the
of this
without compensation.
legislative power
majority
not offend local constitu-
such a
does
declare that
court can
taking
finally
tional
their
does not foreclose
constitu-
federal
prohibitions,
judgment
It
federal
tional
is clear that
examination.
requires
compelling
authority
for the
in this case. The United
by plaintiffs
compensation
taking alleged
States
Court
to Justice
admoni-
will
adhere
Holmes’
hopefully
Supreme
that a
desire to
tion that “We are
public
strong
danger
forgetting
is not
to warrant
condition
improve
enough
achieving
cut
for the
desire
a shorter
than the constitutional way
paying
Mahon,
393,
v.
260
416
Co.
U.S.
Coal
supra,
change.” (Pennsylvania
[67
590,
322,
v.
369 U.S.
594
L.Ed.
see also Goldblatt
326];
(1962)
Hempstead
130, 134,
364
82
v. United States (1960)
L.Ed.2d
S.Ct. 987]; Armstrong
[8
1561,
40,
1554,
L.Ed.2d
80
U.S. v.
Eureka
U.S.
49
S.Ct.
Central
1563];
[4
1228,
155,
1236,
357
168 L.Ed.2d
Particular areas concern must be seen from decision. arising today’s First, solution is for an majority’s really nonremedy aggrieved If landowner. he can his lands to protect only through proceeding declare the of a land use he must lose interim use of invalidity regulation, his land —most for a substantial likely period years suffering legal — costs, Moreover, even he there is though may ultimately prevail. nothing from a modified ordi- prevent governmental agency reenacting nance a second or even third burden compelling proceeding exceeding —a bare view invitation land use possibility majority’s oppressive limitation. small be ones—will economi- Many particularly landowners — enactment, unable even a cally challenge confiscatory being compelled to walk from their away properties. concern is the
Perhaps Tiburón —and greater consequence other similar land many govenmental agencies enacting plans —will within their control out of reach of most price properties Only people. most will be able afford of and construction wealthy on lands purchase in such areas. The environment which Tiburón seeks to will preserve *17 landowner, whose home will be benefit wealthy
disproportionately unobstructed view and atmos- surrounded by open unpolluted space, phere. It our
I rationalization. abdicates responsibility reject majority to constitutional mandate. substance give meaning zoners further councils decision must encourage city Today’s decision use. The not entrenched only preserve politically courtroom, out also his successor-owners Mr. from our but shuts Agins nice from but exclusive environment. sharing should be reversed. dismissal judgment Clark, J., was 1979. denied Appellants’ petition rehearing May was of that the should be opinion petition granted.