De-Tom Enterprises, Inc. v. United States

552 F.2d 337 | Ct. Cl. | 1977

Per Curiam:

This case comes before the court on plaintiffs exceptions to the recommended decision of Senior Trial Judge Mastin G. White, filed July 16, 1976, pursuant to Rule 134(h), having been submitted on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the trial judge’s recommended decision (as hereinafter set forth), it hereby affirms and adopts said decision, as supplemented by the following paragraphs of this per curiam opinion, as the basis for its judgment in this case.

In addition to the trial judge’s discussion, the court points out that plaintiff never sought judicial review (in the California state or federal courts) of the denial by the Riverside County Board of Supervisors of plaintiffs application for a change of zoning from RA-5 to R-l. On the contrary, plaintiff has acquiesced in that decision. We must therefore assume for this case that (a) that action by the County Board conformed with California law relating to zoning regulations (including common law, statutes, and the state Constitution), as well as with the federal Constitution, and (b) the refusal to allow R-l zoning represented a proper zoning decision within the powers of Riverside County. It is also clear that that zoning action, leading at most to prevention of a rise in market value but not to a destruction of all substantial use, did not constitute a taking by the County under California law. HFH, Ltd. v. Superior Court of Los Angeles County, 125 Cal. Rptr. 365, 15 Cal. 3d 508, 542 P.2d 237 (1975), cert. denied, 425 U.S. 904 (1976).¹ Plaintiff is therefore in the untenable position of urging that, although there was neither a taking nor improper regulatory action by the County entity which refused plaintiffs zoning application, the United States is nevertheless liable for a taking simply because the Air Force influenced Riverside County to adopt that proper and lawful regulatory stance. Such an extraordinary result could not be correct.

Moreover, even if we assume that the County’s action was unlawful or even that it amounted to a taking by the County, the United States could not be held liable in this court. If the contention is that the Air Force acted wrongfully in influencing the County Board of Supervisors, we are plainly without jurisdiction because, as the trial judge points out, we have no original jurisdiction in tort. See, e.g., Anglo-American Trading Corp. v. United States, 109 Ct. Cl. 859 (1948). If plaintiffs position is that the Air Force necessarily took plaintiffs property (in the constitutional sense) simply by persuading the County Board not to change the zoning of the property, we must reject such a claim on its merits. Where as here there is no physical invasion of or physical damage to a claimant’s property by the United States or its authorized agents,² the Government can be held responsible for a Fifth Amendment taking only when its own regulatory activity is so extensive or intrusive as to amount to a taking under the general principle of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). See, also, United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958); Goldblatt v. Hempstead, 369 U.S. 590, 592 ff. (1962). The recent case of Benenson v. United States, 212 Ct. Cl. 375, 548 F. 2d 939 (1977) (involving the Willard Hotel in the District of Columbia), is an instance in which Congressional legislation put such substantial and burdensome restrictions on an owner’s use of his property that a taking had to be implied. But it is quite different when neither Congress nor a federal agency puts any regulatory burden on the owner but the agency, as an interested landowner, does no more than convince a state or local agency to impose such a burden, in the same way as might any other neighboring property owner or citizen. Here the Air Force was a powerful adjoining landholder, but so could be a large private manufacturer or comparable enterprise, or an organized group of citizens intent on preserving the environment or the character of their locality. In none of these cases would the intervention of the neighbor to persuade a county entity against rezoning the claimant’s land constitute an eminent domain taking by the neighbor — whatever else it might be. The United States is thought to have a deep pocket and it is tempting for owners to try to shift to it the costs which they cannot or do not wish to impose on the ’ocal entity which actually undertakes the zoning, but the fundamental point is that it is that agency (here the County Board) which adopts, and has the power to adopt, the allegedly injurious course, and the federal agency (here the Air Force) is only playing the role of an influential affected landowner trying to persuade the county body to accept its position.³

For these reasons, and those given by the Trial Judge, we hold that the plaintiff is not entitled to recover and the petition is dismissed.

OPINION OP THE TRIAL JUDGE

White, Senior Trial Judge:

The plaintiff asserts a claim under the provision of the Fifth Amendment to the Constitution which declares, "nor shall private property be taken for public use, without just compensation.” In asserting this claim, the plaintiff presents for consideration a novel theory concerning an alleged taking by the Government of an interest in land owned by the plaintiff.

The land involved in the present case is a 38.93-acre parcel situated in Riverside County, California. It lies to the east of, and adjacent to, March Air Force Base, which is the home base of the 22nd Bombardment Wing, a unit of the Fifteenth Air Force, Strategic Air Command. The 22nd Bombardment Wing is equipped with B-52 heavy bombers and KC-135 tanker planes. Both the B-52 and the KC-135 are multi-engine jet aircraft.

The plaintiffs property is located sufficiently close to portions of March Air Force Base where noise-producing activities are carried on — e.g., the repair area (where dismounted jet engines are repaired and tested), the warmup area (where the jet engines of operational aircraft are warmed up before the aircraft proceed to a runway for takeoff), and a north-south runway — that jet-engine noise emanating from March Air Force Base is audible much of the time to anyone on the plaintiffs property. However, the plaintiff does not complain in the present case of the impact of such noise on its property. Rather, the plaintiff contends that the noise is not unduly disturbing, and complains that the Air Force prevented it from obtaining a change of zoning that would have permitted the property to be developed for high-density residential purposes. The pertinent- circumstances will be summarized in subsequent paragraphs of this opinion.

The 38.93 acres comprising the plaintiffs property (which will usually be referred to hereafter in the opinion as "the property”) were acquired by the plaintiff in three separate transactions during the period which began in August 1963 and ended in February 1964. In acquiring the property, it was the plaintiffs intention ultimately to develop it for residential purposes by building low-cost homes on it. However, at the time of the acquisition of the property by the plaintiff, and for a few years thereafter, the property was subject to an M-3 zoning, which was imposed by the Riverside County Board of Supervisors and which restricted the use of the land to manufacturing or industrial purposes. In 1967 — without any request for such action having been submitted by the plaintiff — the Board of Supervisors changed the zoning of the property from M-3 to RA-5, which permitted the property to be used for residential-agricultural purposes and to be subdivided into smaller parcels of not less than 5 acres each. The plaintiff did not take advantage of this change of zoning by subdividing the property into 5-acre parcels, as it was still the plaintiffs intention to develop the property for high-density residential purposes. The plaintiff did, however, devote the land to residential-agricultural use by leasing the property to an individual who lived on the property and operated on it a horse-training center and riding school.

In order for the plaintiff to carry out its intention of developing the property for high-density residential purposes, it was necessary for the plaintiff to obtain from the Riverside County Board of Supervisors a change of zoning for the property, from RA-5 (residential-agricultural, 5-acre minimum) to R-l (residential, single-family dwellings). Accordingly, on or about July 28, 1971, the plaintiff submitted an application requesting that the zoning of the property be changed from RA-5 to R-l.

The plaintiffs application for a change of zoning was considered and approved by the Riverside County Planning Commission on September 8, 1971, and by the Riverside County Airports Land Use Commission on November 11, 1971. The application then went before the Riverside County Board of Supervisors for final action.

A hearing on the plaintiffs application for a change of zoning was held by the Riverside County Board of Supervisors on November 16, 1971. Only the Air Force appeared at the hearing in opposition to the application. The Air Force was represented by the Staff Judge Advocate of March Air Force Base, who reminded the members of the Board that the Government had invested more than $100,000,000 in March Air Force Base, and expended approximately $70,000,000 per year on operations at the base. The Staff Judge Advocate further stated that it was anticipated by the Air Force that if the area immediately adjacent to the base were to be developed for high-density residential use, complaints about the noise emanating from the base by individuals and groups of individuals living near the base might ultimately compel the Air Force to curtail, or perhaps discontinue, operations at the base; that the property involved in the application was subject to the highest intensity of noise emanating from the base; and that the "encroachment” of high-density residential development on the property would be incompatible with the continued use of March Air Force Base for military operations at the then-current level.

There was also submitted to the Riverside County Board of Supervisors at the hearing a letter from the Commander of March Air Force Base, expressing the view of the Air Force that, because of the impact on the property of jet-engine noise emanating from March Air Force Base, the property would be "highly undesirable for any type of residential use.” The letter from the Base Commander further stated in part as follows:

* * * [T]his property lies only a few hundred feet from the Base jet engine runup areas, and as such, is frequently subject to the most intense noise created on the base.

We are, as you know, highly concerned with any residential encroachment to the Base which would increase citizens’ complaints, which the noise problem may well be expected to generate. * * *

The actions of the Staff Judge Advocate and the Base Commander of March Air Force Base in opposing the plaintiffs application for a change of zoning were in accordance with the general policy of the Air Force to prevent, if possible, "encroachments” of high-density residential or commercial developments on lands situated in the immediate vicinity of major military airports. It was the view of the Air Force (as explained more fully in the findings of fact) that if lands located near a major military airport were to be developed for high-density residential or commercial use, individuals and groups of individuals living on or using the lands would be so affected by the noise emanating from the airport that they would register complaints of such volume and intensity as ultimately to compel the curtailment, or perhaps the discontinuance, of the military mission of the airport. The Air Force made a practice of informing local zoning authorities of its view concerning proper land use in the vicinity of military airports, and attempted to persuade such authorities to restrict the use of nearby lands to agricultural or industrial purposes, and not to permit such lands to be used for high-density residential or commercial development.

At the conclusion of the hearing on November 16, 1971, the Riverside County Board of Supervisors denied the plaintiffs application for a change of zoning from RA-5 to R-l.

The evidence in the record warrants the inference that if the Air Force had not opposed the plaintiffs application for a change of zoning, the application would have been approved by the Riverside County Board of Supervisors.

It is the plaintiffs theory of the case, as stated in the petition, that "The coercion exercised by the Department of the Air Force upon the Board of Supervisors * * * which has thus prevented reasonable use of The Property constitutes a taking of private property for public use without just compensation * * * [and] violates the Fifth Amendment to the Constitution of the United States.”

Even if it is assumed, arguendo, that the action of the Air Force in opposing the plaintiffs application for a change of zoning constituted wrongful coercion of the Riverside County Board of Supervisors, such coercion did not result in a taking by the Government from the plaintiff of any property right, title, or interest that the plaintiff had prior to the exercise of such coercion.

Immediately prior to the time when the Riverside County Board of Supervisors — yielding to the assumed coercion of the Air Force — denied the plaintiffs application for a change of zoning, the property was zoned for RA-5 use, which meant that the plaintiff could use the property for residential-agricultural purposes and could subdivide the 38.93-acre parcel into smaller parcels of not less than 5 acres each, if the plaintiff so desired. After the Board of Supervisors denied the plaintiffs application for a change of zoning, the property was still zoned for RA-5 use, so the plaintiffs right, title, and interest in the property were precisely the same as they had been prior to the action of the Board of Supervisors.

Also, the evidence in the record shows that the action of the Riverside County Board of Supervisors in denying the plaintiffs application for a change of zoning did not affect the fair market value of the property in any way. On November 15, 1971, the date preceding the action of the Board of Supervisors, the fair market value of the property, with its RA-5 zoning, was $82,700. On November 17, 1971, the day following the action of the Board of Supervisors, the fair market value of the property, with its RA-5 zoning, was still $82,700.

Therefore, inasmuch as the action of the Air Force in opposing the plaintiffs application for a change of zoning did not result in any diminution of the plaintiffs right, title, or interest in the property, it necessarily follows that there was no taking of property by the Government, within the scope of the Fifth Amendment to the Constitution.

The action of the Air Force did prevent the plaintiff from acquiring a valuable property right which had not been available to the plaintiff theretofore and which the plaintiff desired to secure, i.e., the right to develop the property for high-density residential purposes. However, it is not within the jurisdiction of this court to determine whether the action of the Air Force was, as alleged by the plaintiff, wrongfully coercive of the Riverside County Board of Supervisors, inasmuch as wrongful coercion would amount to tortious conduct, and tort actions are expressly excluded from the jurisdiction of this court by 28 U.S.C. § 1491.

For the reasons previously stated in this opinion, the plaintiff is not entitled to recover in the present action, and the petition should be dismissed.

FINDINGS OF FACT

1. (a) The plaintiff is, and at all times material to this litigation has been, the owner of 38.93 acres of land situated in Riverside County, California, and described as Lots 4 and 5, Block 2, Riverside Alfalfa Acres, as shown by map at page 21 in Book 8 of Maps, Riverside County Records. (This land will usually be referred to hereafter in the findings as "the property.”)

(b) The property was acquired by the plaintiff in three separate transactions during the period which began in August 1963 and ended in February 1964.

(c) The two lots comprising the property are contiguous and, together, form a square-shaped parcel of land.

2. (a) The plaintiff acquired the property for the purpose of ultimate residential development, it being his intention to build low-cost homes on it. However, at the time of the acquisition of the property, and for a few years thereafter, the property was subject to an M-3 zoning, which was imposed by the Riverside County Board of Supervisors and which restricted the use of the land to manufacturing or industrial purposes.

(b) In 1967, the Riverside County Board of Supervisors changed the zoning of the property from M-3 to RA-5, which permitted the property to be used for residential-agricultural purposes and to be subdivided into smaller parcels of not less than 5 acres each. This change of zoning was made without any request therefor being submitted by the plaintiff.

3. In 1971 — the time directly involved in the present litigation — the property was still subject to the RA-5 zoning mentioned in finding 2(b). The property was leased to an individual, who operated a horse-training center and riding school on the property. The permanent improvements on the property included a one-story single-family residence, a structure which was being used as a dormitory for riding-school students and which also provided office space and storage space, two barns, a hay shed, a storage shed, and a number of horse stalls. The lessee lived on the property.

4. (a) The property is located east of, and directly adjacent to, March Air Force Base, a military facility operated by the Air Force. The property is separated from the base by a street known as Heacock Street, which is approximately 40 feet wide.

(b)March Air Force Base was in existence long before the property was acquired by the plaintiff.

5. March Air Force Base is the home base of the 22nd Bombardment Wing of the Fifteenth Air Force, Strategic Air Command, United States Air Force. This wing is equipped with B-52 heavy bombers and KC-135 tanker planes. The B-52 is an 8-engine jet bomber, and the KC-135 is also a multi-engine jet aircraft.

6. (a) The repair area on March Air Force Base, where dismounted jet engines are repaired and tested, is located about 1,200 feet to the west of the northern portion of the property, at the nearest point; the warm-up area on the base, where the jet engines of operational aircraft are warmed up before the aircraft proceed to a runway for takeoff, is located about 1,200 feet to the west of the central portion of the property, at the nearest point; and a north-south runway on the base is located some 1,500 feet to the west of, and parallel to, the western boundary of the property.

(b) The evidence in the record indicates that jet-engine noises emanating from March Air Force Base are audible much of the time to individuals on the property, but that the noise level generally does not interfere with the conduct of normal activities on the property. Sometimes, however, the noise level increases to the point where the noise does interfere with vocal communication on the property, but such instances are of short duration.

(c) There has not been any increase in the noise level on the property from aircraft operations at March Air Force Base during the period since the property was acquired by the plaintiff in 1963-64.

(d) The plaintiff does not assert any claim in the present litigation based upon the effect on the property of noise generated by aircraft operations at March Air Force Base.

7. Prior to purchasing the property, the plaintiff did not make any inquiries of local governmental or Air Force officials regarding the suitability of the property for residential development in the light of the impact of aircraft operations at March Air Force Base upon the surrounding environs.

8. (a) As of October 1, 1964, the Department of the Air Force promulgated Air Force Manual No. 86-5, which was entitled "Land Use Planning With Respect to Aircraft Noise” and which prescribed a procedure for predicting the average community response to engine noise generated by aircraft operations. It was intended to be used as a guide in planning land use for areas located in the vicinityof airports.

(b) Under Air Force Manual No. 86-5, composite noise ratings were scientifically assigned to the various types of aircraft operations. Then, on the basis of such ratings, the response to be expected from individuals or groups residing or working within geographical zones having a relationship to the source of, and likely to be affected by, the noise was estimated. The scheme contemplated that three such geographical zones — designated as CNR Zone 3, CNR Zone 2, and CNR Zone 1 — would be established within the environs of each major airport operated by the Air Force.

(c) CNR Zone 3 was to include the geographical area where the noise emanating from aircraft operations at an airport was expected to have the greatest impact, where it was to be anticipated that individual reactions to the noise would probably include repeated, vigorous complaints, and where concerted group action against the noise was also to be anticipated.

(d) CNR Zone 2 was to include the geographical area where the noise from aircraft operations at an airport was expected to have less impact than in CNR Zone 3 but where it was to be anticipated that some individuals would complain about the noise.

(e) CNR Zone 1 was to include the geographical area where, although the noise from aircraft operations at an airport might interfere occasionally with certain activities of the residents of the zone, it was to be anticipated that virtually no complaints about the noise would be received.

9. In connection with the establishment of CNR zones within the environs of its major airports, the Air Force developed what was known as a "greenbelt” concept for the protection of such airports from what the Air Force regarded as undesirable "encroachments” in the form of types of land use that might, unless prevented, ultimately interfere with the military mission of the airports by virtue of the number and intensity of complaints made by individuals and groups against the airport noise. In accordance with this concept, the Air Force sought to discourage and, if possible, to prevent any sort of high-density residential or commercial development of lands situated with a CNR Zone 3 near a military airport. It was the policy of the Air Force to inform local' zoning authorities of its views in this respect and to persuade such authorities, if possible, to restrict the use of lands in a CNR Zone 3 to agricultural or industrial purposes, and not to permit such lands to be used for high-density residential or commercial development.

10. (a) Sometime prior to 1971, the Air Force engaged a competent engineering firm to make noise studies with respect to the aircraft operations at March Air Force Base and to establish CNR zones for the lands within the environs of the base. As a result of these studies, the property was placed in CNR Zone 3 and thus was part of the "greenbelt” which the Air Force sought to have maintained for the protection of March Air Force Base.

(b) Although no scientific measurements of the noise level on the property, resulting from aircraft operations at March Air Force Base, were made in connection with the noise studies mentioned in paragraph (a) of this finding, it was estimated that at a certain phase of an engine warmup on the base, the noise on the property would reach a level of about 90 decibels. It was expected that such a noise level would interrupt and prevent normal conversation and would significantly interfere with the ability to sleep.

11. In furtherance of the Air Force policy mentioned in finding 9, Colonel Robert L. Cooch, Commander of March Air Force Base, wrote a letter on July 14, 1971, to Norton Younglove, who was a member of the Riverside County Board of Supervisors and who represented the district in which March Air Force Base is located. This letter stated in part as follows:

During the past several years, and more particularly, within the past one year, an expanding development of the area surrounding and adjacent to March Air Force Base has raised substantial concern over the continuing encroachment and impact of such developments on base airfield operations. If continued in certain areas, this encroachment could eventually adversely affect the mission accomplishment of the base, and eventually might result in either condemnation action to acquire appropriate "restrictive easements” or "purchase” of land by the government for a "protective greenbelt” zone around the base, or if this could not be accomplished, a reduction or transfer of base flying activities could eventually result. To preclude this encroachment, and to protect surrounding areas from nuisance, noise and other unavoidable hazards of airfield operations, the Air Force has developed a "greenbelt concept,” which envisions a buffer zone sufficient to protect airfield operations from such encroachment, and at the same time, reduce citizens’ objections resulting from nuisance, noise or other hazards of airfield activities. This concept envisions that at certain large Air Force bases, with a permanent and continuing hard core flying mission, that certain actions should be taken to develop or extend a "greenbelt” area (non-residential — commercial) around such activities to permit their continued, indefinite operation in the future.

March Air Force Base is such an activity which is included within the "hard core flying mission, 'greenbelt’ concept.” However, the continuing development of the surrounding area into residential areas and commercial developments, does create an immediate concern.

* * * [T]he east side of the base to Perris Blvd., is within the "greenbelt” area requiring encroachment protection. Several tracts in this area are presently being pushed by certain land owners for residential development. * * * To preclude further encroachment on base airfield operations/activities and to protect this area from nuisance, noise and other hazards including "citizens’ objections,” from the impact of noise and other such airfield hazards, and to assure continued, indefinite and unrestricted AF activities, your assistance is needed to prevent further encroachment. Specifically, three alternatives appear possible:

a. Appropriate zoning by county authorities to retain the area in an agricultural, park or industrial status, thus preventing residential/commercial developments, etc.

* * *

The first alternative noted above appears to be the most feasible * * *.

* * ■ * * *

To prevent further continuing encroachment and to assure continued unimpeded mission accomplishment, it is requested that appropriate zoning controls be considered for the mentioned areas adjacent to the base to preclude residential, commercial or other high density development. * * *

12. (a) As stated in previous findings, it was the plaintiffs intention, when it acquired the property in 1963-64, to use the property ultimately for residential development by building low-cost homes on it. In order to carry out such intention, it was' necessary for the plaintiff to obtain from the Riverside County Board of Supervisors a change of zoning for the property, from RA-5 (residential-agricultural, 5-acre minimum) to R-l (residential, single-family dwellings).

(b) On or about July 28, 1971, the plaintiff filed with the Riverside Planning Commission an application requesting that the zoning of the property be changed from RA-5 (residential-agricultural, 5-acre minimum), which the property had been subject to since 1967, to R-l (residential, single-family dwellings).

(c) The property had theretofore never been zoned for R-l use.

13. At the time when the plaintiff submitted the application referred to in finding 1203), the surrounding land, with the exception of March Air Force Base on the west, was being used for agricultural purposes. There was very little residential development in the area.

14. Having learned of the plaintiffs request that its property be rezoned from RA-5 to R-l, Colonel Robert L. Cooch, Commander of March Air Force Base, sent a letter concerning the matter to Norton Younglove, a member of the Riverside County Board of Supervisors, on August 31, 1971. This letter stated in part as follows:

* * * This property * * * lies well within the March AFB "greenbelt zone” and the Zone 3 noise level, which, in our view, would make it highly undesirable for any type of residential use. Further, this property lies only a few hundred feet from the Base jet engine runup areas, and as such, is frequently subject to the most intense noise created on the base.

We are, as you know, highly concerned with any residential encroachment to the Base which would increase citizens’ complaints, which the noise problem may well be expected to generate. * * *

15. (a) The plaintiffs application for a change of zoning was considered by the Riverside County Planning Commission at a meeting on September 8, 1971. The members of the commission voted unanimously to recommend to the Riverside County Board of Supervisors that the zoning of the property be changed from RA-5 to R-l.

(b) The recommendation of the Planning Commission was transmitted to the Board of Supervisors in the form of a letter dated September 27, 1971.

16. A hearing on the plaintiffs application for a change of zoning was held before the Riverside County Board of Supervisors on October 26, 1971. Instead of taking action on the application, the Board of Supervisors voted to continue the hearing to November 16, 1971, and, in the meantime, to refer the application to the Riverside County Airports Land Use Commission for further study and a recommendation.

17. (a) The plaintiffs application for a change of zoning was considered by the Riverside County Airports Land Use Commission at a meeting on November 11, 1971. The Commission voted to support the previous recommendation of the Riverside County Planning Commission that the plaintiffs application for a change of zoning be approved.

(b) By means of a letter dated November 15, 1971, and addressed to the Riverside County Board of Supervisors, the Airports Land Use Commission recommended that the plaintiffs request for a change of zoning be approved in accordance with the recommendation of the Riverside County Planning Commission.

18. (a) A further hearing on the plaintiffs application for a change of zoning was held by the Riverside County Board of Supervisors on November 16, 1971.

(b) At the outset of the hearing, Norton Younglove submitted to the other members of the Board the letter from Colonel Cooch that is mentioned in finding 14.

(c) The Staff Judge Advocate of March Air Force Base appeared at the hearing as the representative of the Base Commander and of the Air Force, and testified in opposition to the application. He reminded the members of the Board that the Government had invested more than $100,000,000 in March Air Force Base and that the Government expended approximately $70,000,000 annually on the operations at the base. The Staff Judge Advocate further stated that it was anticipated by the Air Force that if the area immediately adjacent to the base were developed for high-density residential use, complaints about the noise emanating from the base by individuals and groups of individuals living near the base might ultimately force the Air Force to curtail or discontinue operations at the base; that the property was in CNR Zone 3, which meant that the property was subject to the highest intensity of noise emanating from the base; and that the encroachment of high-density residential development on the property would be incompatible with the continued use of March Air Force Base for military operations at the then-current level.

(d) Except for the Staff Judge Advocate from March Air Force Base, no one appeared at the hearing in opposition to the plaintiffs application for a change of zoning, and no written objections to the application were submitted by anyone other than the Air Force.

(e) During the course of the hearing, Norton Youn-glove remarked that, quite apart from the problem of the impact of aircraft noise on the property, he questioned whether there was a need for additional R-l zoning in the area, inasmuch as there was already adequate R-l zoning in the area and very little actual development of such land for residential use.

(f) At the conclusion of the hearing, with one supervisor absent and one supervisor not voting, the three other members of the Riverside County Board of Supervisors voted to reverse the recommendation of the Riverside County Planning Commission and to deny the plaintiffs application for a change of zoning.

19. The evidence in the record warrants the inference, and it is found, that if the Air Force had not opposed the plaintiffs application for a change of zoning, the application would have been approved by the Riverside County Board of Supervisors.

20. The evidence in the record warrants the inference, and it is found, that the Air Force personnel involved in the opposition to the plaintiffs application for a change of zoning acted in good faith and from the honest belief that the development of the property for high-density residential use would be incompatible with the military mission of March Air Force Base.

21. (a) On November 15, 1971, the date preceding the action of the Riverside County Board of Supervisors in denying the plaintiffs application for a change of zoning, the fair market value of the property, with its RA-5 zoning, was $82,700.

(b) On November 17,1971, the day following the action of the Riverside County Board of Supervisors in denying the plaintiffs application for a change of zoning, the fair market value of the plaintiffs property, with its RA-5 zoning, was $82,700.

(c) If the plaintiff had been able to secure the requested change of zoning for the property from the Riverside County Board of Supervisors on November 16, 1971, the fair market value of the property, with a new zoning of R-l, on November 17, 1971, would have been $248,200.

22. Although aware at the time of the denial of its application for a change of zoning that judicial review of the action of the Riverside County Board of Supervisors was available, the plaintiff chose not to exercise such right.

23. The plaintiff subsequently submitted a second application for rezoning to the Riverside County Board of Supervisors. However, upon the Board’s request that the plaintiff file an environmental impact report, the plaintiff refused and, instead, abandoned its second application.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and the petition is dismissed.

1 Plaintiff invokes Eldridge v. City of Palo Alto, 57 Cal. App.3d 613, 129 Cal. Reptr. 575 (1976, hearing denied July 15, 1976), as modifying the principle of HFH, Ltd., and recognizing that zoning can in some circumstances rise to a taking. The zoning regulation in Eldridge was, however, much more drastic than that involved in the case at bar. The land, when acquired by those claimants, was zoned for single-family residential use on minimum one-acre sites; thereafter, a regulation was adopted which designated the area for "open space use,” permitting no less than a ten-acre site per house, all such sites to be subject to "open-space” uses. The gist of those plaintiffs’ complaints was that the "open-space” ordinances denied them any reasonable or beneficial use of their land. The California Court of Appeals refused to dismiss the demands for just compensation on their face, holding that many factual issues remained to be resolved — including whether the ten-acre homesites would be salable at all and the reasonableness of the concept that such homesites must without compensation remain "open space.” The differences from the instant case are apparent, including the fact that here De-Tom Enterprises complains of a failure to rezone so as to lift the value of the land, not a change in zoning which decreased the pre-existing value.

2 Of course, every physical invasion or damage does not rise to the level of a taking. See, e.g., Avery v. United States, 165 Ct. Cl. 357, 330 F.2d 640 (1964).

3 Compare the attempt, rejected in D.R. Smalley & Sons, Inc. v. United States, 178 Ct. Cl. 593, 372 F.2d 505, cert. denied, 389 U.S. 835 (1967), by a highway contractor to hold the United States liable, either as a contracting party or as a "taker,” for highway construction undertaken by a state with a financial grant from the Federal Government. See, also, Edison Sault Electric Co. v. United States, ante at 321-22, 552 F. 2d 326, 333.