Lead Opinion
Opinion
— We review the availability of inverse condemnation as a landowner’s remedy when a public agency has adopted a zoning ordinance which substantially limits use of his property. We will conclude that although a landowner so aggrieved may challenge both the constitutionality of the ordinance and the manner in which it is applied to his
Plaintiffs own five acres of unimproved land in the City of Tiburón, Marin County. Tiburón has an area of 1,676 acres, a population of approximately 6,000, and because of its proximity to San Francisco, its aquatic facilities, temperate climate, and other geographic advantages, is a very desirable suburban residential area. Plaintiffs’ real property is ridgeland, possesses views of San Francisco Bay, and was acquired by plaintiffs for residential development.
Tiburón, like every other city in California, is required by state law to prepare a general plan containing, among other things, “A land use element which designates the proposed general distribution and general location and extent of the uses of the land for housing, business, industry, open space . . . and other categories of public and private uses of land. The land use element shall include a statement of the standards of population density and building intensity recommended for the various districts and other territory covered by the plan.” (Gov. Code, § 65302, subd. (a).)
Routinely, the development of a general plan entails a careful examination of numerous social and economic factors. Many cities, especially those which are too small to maintain a staff of sufficient size and technical expertise to undertake such a project, seek the advice of expert consultants. The recommendations of these consultants are considered when the local governmental entity prepares its general plan.
In January 1972 Tiburón retained two private consultants, Williams & Mocine and Dean Witter & Co., Incorporated, to prepare advisory reports. The Williams report, issued in October 1972, focused on possible land use designations and recommended that Tiburón attempt to acquire “a substantial portion of Tiburón ridge” for “open space.” Plaintiffs’ property was identified in the report as one of those parcels of property which were suitable for acquisition for open space. The Witter report, dated July 1972, recommended that the purchase of open space lands be financed through the issuance of $1.25 million of general obligation bonds. The subsequent resolution of the Tiburón City Council approving sale of these bonds did not specifically authorize acquisition of plaintiffs’ property or directly refer to it.
Plaintiffs have never made application to use or improve their property following Tiburon’s adoption of Ordinance No. 124 N.S., nor have they either sought or received any definitive statement as to. how many dwelling units they could build on their land. On October 15, 1973, plaintiffs filed a claim against the City of Tiburón in the amount of $2 million alleging that the adoption of Ordinance No. 124 N.S. had completely destroyed the value of their property. The city rejected the claim on November 12, 1973.
On December 4, 1973, Tiburón filed a complaint in eminent domain against plaintiffs to acquire their property, but on November 1, 1974, filed a notice of abandonment of the proceedings as then authorized by Code of Civil Procedure section 1255a, subdivision (a). (This section was repealed by Stats. 1975, ch. 1275, § 1.) The trial court entered its judgment of dismissal of the action on May 20, 1975. The city paid plaintiffs $4,500 for their necessary expenses incurred during the pendency of the action pursuant to section 1255a, subdivision (c), which then fixed the rights of a condemnee upon abandonment of a condemnation proceeding. The remedy was exclusive and the section did not include, as an element of damages, financial impairment during pendency of the eminent domain action of the owner’s right to sell. Accordingly, there W^s no further cause of action available to plaintiffs by reason of the city’s eminent domain proceeding.
On June 16, 1975, plaintiffs filed their complaint in the Marin County Superior Court against the City of Tiburón and Does One through Fifty alleging, as a first cause of action, a claim in inverse condemnation for $2
Defendants’ general demurrer to the first cause of action (inverse condemnation) was sustained without leave to amend. Similarly, their demurrer to the second cause of action (declaratory relief) was sustained with 10 days leave to amend. Plaintiffs declined to amend their second cause of action and plaintiffs appeal from the ensuing judgment of dismissal with prejudice.
Plaintiffs contend that the limitations on the use of their land imposed by the ordinance constitute an unconstitutional “taking of [plaintiffs’] property without payment of just compensation” for which an action in inverse condemnation will lie. Inherent in the contention is the argument that a local entity’s exercise of its police power which, in a given case, may exceed constitutional limits is equivalent to the lawful taking of property by eminent domain thereby necessitating the payment of compensation. We are unable to accept this argument believing the preferable view to be that, while such governmental action is invalid because of its excess, remedy by way of damages in eminent domain is not thereby made available. This conclusion is supported by a leading authority (1 Nichols, Eminent Domain (3d rev. ed. 1978) Nature and Origin of Power, § 1.42(1), pp. 1-116 through 1-121), who expresses his view in this manner: “Not only is an actual physical appropriation, under an attempted exercise of the police power, in practical effect an exercise of the power of eminent domain, but if regulative legislation is so unreasonable or arbitrary as virtually to deprive a person of the complete use and enjoyment of his property, it comes within the purview of the law of eminent domain. Such legislation is an invalid exercise of the police power since it is clearly unreasonable and arbitrary. It is invalid as an exercise of the power of eminent domain since no provision is made for compensation. ” (Italics added.)
We have previohsly pointed to the general nature of the appropriate remedy in suclV'cases. In State of California v. Superior Court (Veta) (1974)
Similarly, a landowner alleging that a zoning ordinance has deprived him of substantially all use of his land may attempt through declaratory relief or mandamus to invalidate the ordinance as excessive regulation in violation of the Fifth Amendment to the United States Constitution and article I, section 19, of the California Constitution. He may not, however, elect to sue in inverse condemnation and thereby transmute an excessive use of the police power into a lawful taking for which compensation in eminent domain must be paid. (See Friedman v. City of Fairfax (1978)
There is a clear, direct and unquestionable constitutional basis for the protection of private property. Amendment V of the United States Constitution provides that “No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.” In concert with the foregoing Fifth Amendment language article I, section 19, of the California Constitution mandates that “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has been paid to, or into court for, the owner.”
“Property,” in a legal sense, has been broadly defined. The United States Supreme Court has said that the term “property” is not used in “the vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. . . . [Instead it] denote[s] the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of it. . . . The constitutional provision is addressed to every sort of interest the citizen may possess.” (U. S. v. General Motors Corp. (1945)
While acknowledging the power of government to preserve and improve the quality of life for its citizens through the regulation of the use of private land, we cannot countenance the service of this legitimate need through the uncompensated destruction of private property rights.
In balancing the constitutional rights of the landowner against the legitimate needs of government we do not ignore well established precedent. In Pennsylvania Coal Co. v. Mahon (1922)
In HFH, Ltd. v. Superior Court (1975)
While it is true that the land uses which were regulated in HFH, Ltd. were commercial, we find no reason to distinguish it on that basis from
We are persuaded by various policy considerations to the view that inverse condemnation is an inappropriate and undesirable remedy in cases in which unconstitutional regulation is alleged. The expanding developments of our cities and suburban areas coupled with a growing awareness of the necessity to preserve our natural resources, including the land around us, has resulted in changing attitudes toward the regulation of land use. Recognition of this historic trend is not new. The United States Supreme Court perceptively observed more than 50 years ago that with the passage of time and increased concentration of people “problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, . . . And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.” (Euclid v. Ambler Co. (1926)
In the half century since Euclid the foregoing abstract principles under the force of experience have coalesced into a specific functional requirement. Community planners must be permitted the flexibility which their work requires. As we ourselves have recently observed, “If a governmental entity and its responsible officials were held subject to a claim for inverse condemnation merely because a parcel of land was designated for potential public use on one of these several authorized plans, the process of community planning would either grind to a halt, or deteriorate to publication of vacuous generalizations regarding the future use of land.” (Selby Realty Co. v. City of San Buenaventura (1973)
We envisage that the availability of an inverse condemnation remedy in these situations would pose yet another threat to legislative control over appropriate land-use determinations. It has been noted that “The weighing of costs and benefits is essentially a legislative process. In enacting a zoning ordinance, the legislative body assesses the desirability of a program on the assumption that compensation will not be required to achieve the objectives of that ordinance. Determining that a particular land-use control requires compensation is an appropriate function of the judiciary, whose function includes protection of individuals against excesses of government. But it seems a usurpation of legislative power for a court to force compensation. Invalidation, rather than forced compensation, would seem to be the more expedient means of remedying legislative excesses.” (Fulham & Scharf, Inverse Condemnation: Its Availability in Challenging the Validity of a Zoning Ordinance (1974) 26 Stan.L.Rev. 1439, 1450-1451; see also Bowden, Legal Battles on the California Coast: A Review of the Rules (1974) 2 Coastal Zone Management J. 273.)
Other budgetary consequences reveal themselves when the land use control is exercised by means of the initiative. “Legislation in the nature of zoning can be and has been enacted by the people through a direct initiative. Are the voters, through the initiative power, also to have this unwelcome power to inadvertently commit funds from the public treasury? The logical extension of requiring compensation for the mere enactment of a harsh zoning measure indicates that the answer would be in the affirmative. The potential for fiscal chaos would be great if this were the result.” (28 Hastings L.J., supra, at p. 1598, italics in original.)
In combination, the need for preserving a degree of freedom in the land-use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy, persuade us that on balance
Having clarified the nature of the remedies available to an aggrieved landowner, we now consider whether the property owners before us established their right to declaratory relief. We conclude that they did not.
An ordinance which on its face results in a mere diminution in the value of property is not per se improper. In HFH, Ltd. v. Superior Court, supra,
Accepting as we must the general proposition that whether a regulation is excessive in any particular situation involves questions of degree, turning on the individual facts of each case, we hold that a zoning ordinance may be unconstitutional and subject to invalidation only when its effect is to deprive the landowner of substantially all reasonable use of his property. The ordinance before us had no such effect. According to the wording of the ordinance, of which we may take note, the RPD-1 zoning allows plaintiffs to build between one and five residences on their property. This belies plaintiffs’ claim that development of their land is forever prevented. Taking cognizance of the use which plaintiffs were entitled to make of their land the trial court was justified in finding that the ordinance did not unconstitutionally interfere with plaintiffs’ entire use of the land or impermissibly decrease its value. The trial court acted properly in determining that plaintiffs were not, as a matter of law, entitled to a favorable judgment in declaratory relief.
Plaintiffs also argue that the city’s “precondemnation activities,” those being the authorization of studies which recommended acquisition of plaintiffs’ land for open space and bonds for its purchase, and the filing and subsequent abandonment of an eminent domain proceeding, were so unreasonable as to provide a separate basis for an action for inverse
Klopping involved a plaintiff’s recoveiy for the decline in market value as the result of an unreasonable delay in the institution of eminent domain proceedings following announcement of intent to condemn, and other unreasonable conduct prior to condemnation. In the matter before us there was no such delay or conduct. Tiburón instituted eminent domain proceedings less than six months after Ordinance No. 124 N.S. was adopted. It is manifest that general land-use planning discussions and related decision-making by elected officials must be both unhampered and public. Together or singly, neither process constitutes a “taking” of the property under consideration. Any other conclusion would violate sound public policy.
Our appellate courts have recognized the appropriate controlling principles. “Selby [supra,
Recognizing the constitutionally protected property interests here involved, we also accept the reasonable latitude which must be afforded public officials in the planning for and implementation of legitimate land use goals. These twin purposes will be served by preserving for the landowner, in appropriate cases, declaratory relief or mandamus remedies. However, the use of inverse condemnation with its imposition of money damages upon the public entity would, in our view, unwisely inhibit the proper and necessary exercise of a valid police power.
The judgment is affirmed.
Bird, C. J., Tobriner, J., Mosk, J., Manuel, J., and Newman, J., concurred.
Dissenting Opinion
Dissenting. — “Private property may be taken or damaged for public use only when just compensation . . . has first been paid to . . . the owner.” (Cal. Const., art. I, § 19; italics added.) “Damage,” as used in the constitutional provision, has always included diminution in intrinsic value even when falling short of actual taking, spoilation or invasion. (Reardon v. San Francisco (1885)
It must be clear to all of us that, as alleged by plaintiffs, the City of Tiburón has decided through the political process that in order to preserve its way of life and to maintain what is already among the highest residential land values in the state,
Recognizing the policy considerations in resolving the question when a “taking” must be paid for by government and when it may be deemed merely a permissible intrusion incident to governmental function, the United States Supreme Court has stated that a factual consideration “is the extent of the diminution [of property value]. When it reaches a certain magnitude, in most if not all cases there must be an exercise of eminent domain and compensation to sustain the act.” (Pennsylvania Coal Co. v. Mahon (1922)
The majority opinion attempts to justify its judgment on the ground that plaintiffs — if they are entitled to relief at all — must look to some remedy other than inverse condemnation. {Ante, p. 272.) While purporting to recognize that the Fifth Amendment mandates “private property shall not be taken for public use, without just compensation,” that the “ ‘constitutional provision is addressed to every sort of interest the citizen may possess’ ” {ante, p. 273), and that “we cannot countenance the service of [the need of government to improve the quality of life] through the uncompensated destruction of private property rights” {id.), the majority refuse to follow these precepts. Their refusal is grounded on their mistaken analysis of this court’s earlier decision in HFH, Ltd. v. Superior Court (1975)
In HFH the majority held that inverse condemnation does not lie in a downzoning action when the complaint alleges mere reduction in market value. That case expressly stands for the proposition that a zoning ordinance which “merely decreased the market value of property” does not necessarily violate constitutional provisions “forbidding uncompensated taking or damaging” of property. (HFH, Ltd. v. Superior Court, supra,
When a zoning restriction is so harsh as to transcend a constitutionally protected property right is a question of fact to be determined by trial rather than by demurrer. (See Wilkins v. City of San Bernardino (1946)
Today’s real issue is the extent to which a court will permit — even encourage — governmental agency intrusion into a constitutionally protected area. The majority argue we must condone greater intrusion; that we must recognize “changing attitudes toward the regulation of land use” {ante, p. 275); that community planners must be permitted the flexibility which their work requires {ante, p. 275); that the use of inverse condemnation “will have a chilling effect upon the exercise of police regulatory powers at a local level” and “ ‘will discourage the implementation of strict or innovative planning measures in favor of measures which are less stringent, more traditional, and fiscally safe’ ” {ante, p. 276); and
Today’s decision effectively pronounces that henceforth in California title to real property will no longer be held in fee simple but rather in trust for whatever purposes and uses a governmental agency exercising legislative power elects, without compensation. While the majority of this court can finally declare that such a taking does not offend local constitutional prohibitions, their judgment does not foreclose federal constitutional examination. It is clear that compelling federal authority requires compensation for the taking alleged by plaintiffs in this case. The United States Supreme Court will hopefully adhere to Justice Holmes’ admonition that “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” (Pennsylvania Coal Co. v. Mahon, supra,
The Supreme Court’s latest expression of continuing adherence to the mandate of the .Fifth and Fourteenth Amendments is contained in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979) — U.S. —[
Particular areas of concern must be seen arising from today’s decision. First, the majority’s solution is really a nonremedy for an aggrieved landowner. If he can protect his lands only through a proceeding to declare the invalidity of a land use regulation, he must lose interim use of his land — most likely for a period of years — suffering substantial legal costs, even though he may ultimately prevail. Moreover, there is nothing to prevent the governmental agency from reenacting a modified ordinance compelling a second or even third proceeding — a burden exceeding bare possibility in view of the majority’s invitation to oppressive land use limitation. Many landowners — particularly small ones — will be economically unable to challenge even a confiscatory enactment, being compelled to walk away from their properties.
Perhaps of greater concern is the consequence that Tiburón — and many other govenmental agencies enacting similar land use plans — will price properties within their control out of reach of most people. Only the most wealthy will be able to afford purchase of and construction on lands in such areas. The environment which Tiburón seeks to preserve will
I reject the majority rationalization. It abdicates our responsibility to give meaning and substance to constitutional mandate.
Today’s decision must further encourage city councils and their zoners to politically preserve entrenched property use. The decision not only shuts Mr. Agins out from our courtroom, but also his successor-owners from sharing a nice but exclusive environment.
The judgment of dismissal should be reversed.
Appellants’ petition for a rehearing was denied May 17, 1979. Clark, J., was of the opinion that the petition should be granted.
Notes
It is alleged by plaintiffs’ complaint and admitted by the city’s demurrer that the City of Tiburón has “the highest land value per acre for suburban areas in the State of California.”
Conclusionary allegations of damage to property are insufficient to support — against a demurrer — a complaint in inverse condemnation. (See, Hecton v. People ex rel. Dept. of Transportation (1976)
The majority’s holding unnecessarily goes far beyond a mere determination that — in the majority’s view — plaintiffs in this case are entitled to no relief. In the concluding portions of the majority opinion it is stated — although as earlier noted contrary to established rules on review of judgments following sustaining of demurrer — that the Tiburón ordinance does not deprive plaintiffs of “substantially all reasonable use” of their property. (Ante, p. 277.) Thus HFH, Ltd. v. Superior Court, supra,