*1356 Opinion
In this opinion we consider an issue on remand from the United States Supreme Court. The high court held a landowner is entitled to compensation—not merely injunctive relief—when a court finds there has been an unconstitutional regulatory taking. But the Supreme Court expressly reserved the question whether respondent’s regulatory action in this case amounted to an unconstitutional taking. We decide appellant failed to state a cause of action for two independent and sufficient reasons: (1) The interim ordinance in question substantially advanced the preeminent state interest in public safety and did not deny appellant all use of its property. (2) The interim ordinance only imposed a reasonable moratorium for a reasonable period of time while the respondent conducted a study and determined what uses, if any, were compatible with public safety.
Facts and Proceedings Below
This is an action for property damage caused by the flooding of plaintiff’s 21-acre private campground, Lutherglen, located at the bottom of a canyon in the Angeles National Forest, at 23200 Angeles Forest Highway, Palm-dale, California.
Plaintiff, First English Evangelical Lutheran Church of Glendale (First English) purchased Lutherglen in 1957. Twelve acres are flat land, elevated a little above the banks of Mill Creek, a natural watercourse running down the canyon through Lutherglen, and emptying approximately 10 miles below into the Big Tujunga Dam. On this part of the property, First English built a dining hall, two bunkhouses, a caretaker’s lodge, an outdoor chapel, and a footbridge across Mill Creek.
The middle fork of Mill Creek (Middle Fork) is the natural drainage channel for the watershed area owned by the National Forest Service (Forest Service) upstream of Lutherglen. The Middle Fork joins Mill Creek about 1-1/2 miles above Lutherglen, just below the point where the Angeles Forest Highway (highway) crosses the Middle Fork at Mileage Marker 16.56 (M.M. 16.56). The highway, built by defendant County of Los Angeles (County) with Forest Service approval, crosses the Middle Fork at about 20 locations in the canyon. At M.M. 16.56, the Middle Fork flows beneath the highway through two metal culverts placed by the County in the highway’s solid raised-dirt embankment.
*1357 About 3,860 acres of the watershed area were burned in a fire known as the Middle Fire in July 1977. It is undisputed that the Middle Fire created a potential flood hazard. 1
On February 9 and 10, 1978, a disaster waiting to happen finally arrived. A storm dropped a total of 11 inches of water in the watershed area. A giant wall of water rushed toward the fragile structures people had erected on the banks of the creek. The docile, often dry creek became a raging river and overflowed the banks of the Middle Fork and Mill Creek. The highway’s culverts at M.M. 16.56 were inadequate to handle the volume of water. 2 The flood drowned 10 people in its path, swept away bridges and buildings, and inflicted millions of dollars in losses. Fortuitously, Lutherglen’s planned camp for handicapped children scheduled for that week had been postponed. So no lives were lost on its property when the surging waters engulfed Lutherglen and destroyed its buildings.
Plaintiff filed this inverse condemnation action against the County and the Los Angeles County Flood Control District (District), claiming that the damage to Lutherglen constituted a taking without payment of compensation contrary to article I, section 19 of the California Constitution. 3 The first cause of action alleges that (1) the defendants are liable under Government Code section 835 4 for controlling the Middle Fork and the highway at M.M. 16.56, which constituted a dangerous condition of public property; and (2) that a County ordinance adopted after the flood constituted an unconstitutional taking of property by prohibiting all use of Lutherglen’s 21 acres. The second cause of action alleges that the District engaged in cloud seeding during the storm, for which it is liable in tort and inverse condemnation.
The trial court granted the following pretrial motions: (1) defendants’ motion to strike the portion of the first cause of action for damages in *1358 inverse condemnation based on the taking of all use of Lutherglen by a County ordinance; (2) the District’s motion for judgment on the pleadings on the second cause of action in tort and inverse condemnation based on cloud seeding; and (3) defendants’ motion to limit the trial to the first cause of action for damages under section 835, rather than in inverse condemnation.
The trial, which proceeded solely on the section 835 action, was bifurcated and liability was tried to a jury prior to damages. At the close of plaintiff’s evidence on liability, the court granted defendants’ motion for nonsuit. A judgment of nonsuit dismissing the entire complaint was entered. In its initial appeal to this court, First English appealed the judgment of dismissal and also sought appellate review of the pretrial rulings enumerated above, and of the postjudgment order awarding costs and fees to defendants.
In an unpublished opinion authored by Justice Thompson, this court affirmed the nonsuit of the section 835 cause of action but reversed the dismissal of the claim of inverse condemnation based on the County’s cloud seeding efforts. As to the “regulatory taking” cause of action based on the interim County ordinance prohibiting First English from rebuilding the destroyed buildings, Justice Thompson wrote: “We conclude that because the United States Supreme Court has not yet ruled on the question of whether a state may constitutionally limit the remedy for a taking to non-monetary relief, this court is obligated to follow
Agins. (Auto Equity Sales, Inc.
v.
Superior Court
(1982)
The California Supreme Court adhering to its own precedent in
Agins
v.
Tiburon
denied review on the “regulatory taking” as well as all other issues raised in the initial appeal. But the United States Supreme Court seized upon the case to finally resolve the remedy issue, a question it had been unable to reach for procedural reasons in a series of prior appeals.
6
The
*1359
Supreme Court limited its grant of certiorari to our ruling on the “regulatory taking” cause of action. In a 6-3 decision the high court reversed our resolution of this issue. The majority held we were in error because we relied on an erroneous ruling of the California Supreme Court in
Agins.
The Supreme Court held monetary damages indeed can be sought as an initial remedy for “inverse condemnation” claims based on unconstitutional “regulatory takings.”
(First Lutheran Church
v.
Los Angeles County, supra,
Discussion
Our own previous opinion and that of the Supreme Court define what it is we have yet to resolve in the instant opinion. The trial court made its order striking the inverse condemnation conversion allegation based on the California Supreme Court ruling that damages are not available for a “regulatory taking” until after the regulation in fact is ruled to be an unconstitutional taking and the government elects to continue the regulation in effect. This ground for the order has been overturned. We must now decide whether this order can be sustained on any other grounds. For, it is well settled that a trial court’s decision is not to be reversed merely because it was based on erroneous grounds if there is an alternative rationale which will support that judgment.
(Keenan
v.
Dean
(1955)
The United States Supreme Court in First Lutheran Church made it abundantly clear the Court was deciding the remedies issue—and only that issue. 7 The majority specifically held it was not deciding appellant had *1360 stated a cause of action. As Chief Justice Rehnquist wrote: “In affirming the decision to strike this allegation, the Court of Appeal [this court] assumed that the complaint sought ‘damages for the uncompensated taking of all use of Lutherglen by County Ordinance No. 11,855.’. . .It relied on the California Supreme Court’s Agins decision for the conclusion that ‘the remedy for a taking [is limited] to nonmonetary relief. .The disposition of the case on these grounds isolates the remedial question for our consideration. The rejection of appellant’s allegations did not rest on the view that they were false. . . . Nor did the court rely on the theory that regulatory measures such as Ordinance No. 11,855 may never constitute a taking in the constitutional sense. Instead, the claims were deemed irrelevant solely because of the California Supreme Court’s decision in Agins that damages are unavailable to redress a ‘temporary’ regulatory taking. . . .
“We reject appellee’s suggestions that, regardless of the state court’s treatment of the question, we must independently evaluate the adequacy of the complaint and resolve the takings claim on the merits before we can reach the remedial question. . . .We accordingly have no occasion to decide whether the ordinance at issue actually denied appellant all use of its property or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State’s authority to enact safety regulations. (Citations omitted.) These questions, of course, remain open for decision on the remand we direct today.” (Italics added.) (First Lutheran Church v. Los Angeles County, supra, 482 U.S. at pp. 311-313 [96 L.Ed.2d at pp. 261-263].)
The very limited nature of the court’s holding was underscored in a portion of the dissenting opinion which was not controverted in any way in the majority opinion. As Justice Stephens wrote in his dissenting opinion for three members of the court: “The Court of Appeal affirmed on the authority *1361 of Agins alone, . . . without holding that the complaint had alleged a violation of either the California Constitution or the Federal Constitution. At most, it assumed, arguendo, that a constitutional violation had been alleged.
“This Court clearly has the authority to decide this case by ruling that the complaint did not allege a taking under the Federal Constitution, and therefore to avoid the novel constitutional issue that it addresses. Even though I believe the Court’s lack of self-restraint is imprudent, it is imperative to stress that the Court does not hold that appellant is entitled to compensation as a result of the flood protection regulation that the county enacted. No matter whether the regulation is treated as one that deprives appellant of its property on a permanent or temporary basis, this Court’s precedents demonstrate that the type of regulatory program at issue here cannot constitute a taking.
“[Although the Court uses the allegations of this complaint as a springboard for its discussion of a discrete legal issue, it does not, and could not under our precedents, hold that the allegations sufficiently alleged a taking or that the county’s effort to preserve life and property could ever constitute a taking. As far as the United States Constitution is concerned, the claim that the ordinance was a taking of Lutherglen should be summarily rejected on its merits.” (First Lutheran Church v. Los Angeles County, supra, 482 U.S. at pp. 324-325, 328 [96 L.Ed.2d at pp. 270, 272], Stevens, J., dis.)
This brings us to the question whether the substantive allegations of the “regulatory taking” claim state a valid cause of action. The answer to this question, in turn, depends upon whether the public is justified in placing the burden of these restrictions on this private landowner rather than compensating the landowner for the uses it is required to give up. Commentators have noted the law is not well-settled in this area. (See, e.g., Siemon & Larson, The Taking Issue Trilogy: The Beginning of the End?, supra, 33 Wash. Univ. J. of Urban & Contemporary L. 169.) Nevertheless, there are enough guideposts to resolve the instant case. It simply does not pose a close issue under any formulation the Supreme Court has suggested as the appropriate test for judging when compensation is required.
I. The “Public Safety Exception” and Other Governmental Restrictions on the Use of Private Property
Earlier we quoted Chief Justice Rehnquist’s majority opinion in
First Lutheran Church
where he raised the possibility “the denial of all use was insulated [from compensation] as a part of the State’s authority to enact
*1362
safety regulations.” One of the cases the Chief Justice mentioned in support of that proposition was the seminal decision,
Mugler
v.
Kansas
(1887)
“Undoubtedly the State, when providing by legislation for the protection of the public health, the public morals, or the public safety, is subject to the paramount authority of the Constitution of the United States, and may not violate rights secured or guaranteed by that instrument, or interfere with the execution of the powers confided to the government. [Citations omitted.] Upon this ground . . . defendants . . . [contend] that, as their respective breweries were erected when it was lawful to engage in the manufacture of beer for every purpose; as such establishment will become of no value as property, or, at least, will be materially diminished in value, if not employed in the manufacture of beer for every purpose; the prohibition upon their being so employed is, in effect, a taking of property for public use without compensation, and depriving the citizen of his property without due process of law.
“This interpretation of the Fourteenth Amendment is inadmissible. It cannot be supposed that the states intended, by adopting that Amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community. . . [A]ll property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community. [Citations omitted.]” (123 U.S. at pp. 660-665 [31 L.Ed.2d at pp. 210-211].)
The
Mugler
court distinguished
Pumpelly
v.
Green Bay Company
(1872)
Erecting a dam which permanently submerges a property owner’s land under a lake is one thing, a law limiting his use of that land quite another. As the
Mugler
court ruled: “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by anyone, for certain forbidden purposes, is prejudicial to the public interest. Nor can legislation of that character come within the Fourteenth Amendment, . . . unless it is apparent that its real object is not to protect the community, or to promote the general well being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law.
The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not—and, consistently with the existence and safety of organized society, cannot be—burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted ... to inflict injury upon the
community.” (123 U.S. at pp. 668-669 [
We recognize a brewery is a far cry from a Bible camp. But here the threat to public health and safety emanates not from what is produced on the property but from the presence of any substantial structures on that property. The principles enunciated in
Mugler
have been applied by the court to uphold prohibitions against a broad range of other uses of one’s property—e.g., an ordinance prohibiting the manufacture of bricks inside the city limits of Los Angeles
(Hadacheck
v.
Sebastian
(1915)
Sometimes government exercises its police powers through the enactment of zoning ordinances and other forms of land use regulation. Whether a specific regulation represents an unconstitutional “taking” involves the same considerations as suggested in Mugler and its progeny.
*1364
Recently, in
Agins
v.
Tiburón
(1980)
In Agins, the Supreme Court was called upon to apply this test to a zoning ordinance which limited landowners to one residence on each acre of land. The court found the prevention of premature urbanization was a “legitimate state interest” and a limitation of one dwelling per acre “substantially advanced” this interest. It further found the landowner shared in these public benefits which helped offset any diminution of market value he might suffer. Accordingly, the regulation imposing the limitation was not an unconstitutional “taking” of the landowner’s property and the landowner was not entitled to compensation.
In a case decided the same term as
First Lutheran Church
the Supreme Court applied this same basic test to strike down a condition the California Coastal Commission imposed on an owner of beachfront property
(Nollan
v.
California Coastal Commission, supra,
II. First English Is Not Entitled to Compensation Because the Interim Ordinance Did Not Deprive It of “All Uses” of Lutherglen and Whatever Uses Were Denied Were Properly Denied to Preserve Public Safety
One pair of commentators suggests the Supreme Court has held a private landowner is entitled to compensation when a land use regulation either *1366 does not substantially advance a legitimate public purpose or deprives the landowner of “all uses” of the property. (Falik and Shimko, The Takings Nexus: The Supreme Court Forges a New Direction in Land- Use Jurisprudence, supra, 23 Real Property, Probate & Trust J. 1.) To put it another way, they construe the Supreme Court’s decision in Agins v. Tiburon, supra, to mean landowners are entitled to compensation if the land use regulation deprives them of “all uses” of the property even if the regulation involved substantially advances a legitimate public purpose. They admit there is conflict between this “either/or” test and some of the crucial language in Chief Justice Rehnquist’s majority opinion in First Lutheran Church. There, as will be recalled, the Supreme Court majority clearly stated the land use regulation involved in this case—interim ordinance No. 11,855— would not constitute a compensable “taking” if the regulation did not deprive First English of “all uses” of its property or even assuming it prohibited “all uses” of that property if that deprivation of “all uses” promoted public safety. Under this formulation First English would not be entitled to compensation even if interim ordinance No. 11,855 deprived it of “all uses” of Lutherglen if that prohibition substantially advances the interest in public health and safety.
If necessary, we could readily reconcile the Agins formulation and the First Lutheran Church formulation. In Agins the public purpose advanced was the interest in preventing premature urbanization (with premature urbanization defined as development in excess of one home per acre). The Supreme Court might have difficulty finding that this public purpose would justify depriving a landowner of “all use” of his property. However, the Supreme Court recognized the public purpose in First Lutheran Church is far different—the preservation of lives and health. It would not be remarkable at all to allow government to deny a private owner “all uses” of his property where there is no use of that property which does not threaten lives and health. So it makes perfect sense to deny compensation for the denial of “all uses” where health and safety are at stake but require compensation for the denial of “all uses” where the land use regulation advances lesser public purposes. Indeed it would be extraordinary to construe the Constitution to require a government to compensate private landowners because it denied them “the right” to use property which cannot be used without risking injury and death. 10
*1367 We need not choose between the Agins and First Lutheran Church formulations of the test, however. Interim ordinance No. 11,855 survives under either formulation. It did not deny First English “all use” of the property and the uses it did deny could be constitutionally prohibited under the County’s power to protect public safety.
True, the complaint alleges interim ordinance No. 11,855 denies First English “all use” of Lutherglen. But as will be seen shortly, the ordinance does not deny First English “all use” of this property. It does not even prevent occupancy and use of any structures which may have survived the flood. It only prohibits the reconstruction of structures which were demolished or damaged by the raging waters and the construction of new structures. In no sense does it prohibit uses of this campground property which can be carried out without the reconstruction of demolished buildings or the erection of new ones. First English’s complaint stated solely a facial challenge to the interim ordinance and as far as this ordinance itself was concerned, many camping activities could continue on this property. Meals could be cooked, games played, lessons given, tents pitched. (If Lutherglen had been a factory or a coal mine, these sorts of uses would have meant little to the landowner. But Lutherglen is a camping facility. So uses of value to that purpose remained available during the time the interim ordinance was in effect.)
Given the serious safety concerns demonstrated by the February 1978 flood, the County might well have been justified in prohibiting entirely any human occupancy or other use whatsoever of Lutherglen until it had completed a thorough study and determined precisely what, if any, occupancy and uses were compatible with the public safety. However, we need not address that issue in this case since interim ordinance No. 11,855 did not by its terms preclude “all uses” of this property.
The issue actually raised is whether the County could constitutionally do what it did in interim ordinance No. 11,855—prevent the construction of any buildings in Lutherglen on an interim basis. It is to this issue we now turn.
To properly apply the constitutional test to respondents’ regulatory action in this case requires that we take a closer look at the interim flood
*1368
control ordinance itself as well as other relevant land use provisions. We are reviewing a judgment on the pleadings and ordinarily would be confined to the allegations of the complaint. However, an appellate court is allowed to take account of matters which can be judicially noticed (Code Civ. Proc., § 430.30, subd. (a);
Dryden
v.
Tri-Valley Growers
(1977)
First English’s camp, Lutherglen, is located in an area which was and is zoned “R-R” (Resort and Recreation). A youth camp such as this is allowed within this zone only pursuant to a “Conditional Use Permit.” At the time of the flood, the camp grounds included two bunk houses, a dining hall, a caretaker’s lodge, and an outdoor chapel. After the February 1978 flood swept away most of these structures and those of other camps in the Mill Creek flood way, the County adopted County ordinance No. 11,855 as an interim measure. This ordinance was enacted on January 11, 1979, and provides in pertinent part: “A person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon, vicinity of Hidden Springs, . . .
“Studies are now under way by the Department of Regional Planning in connection with the County Engineer and the Los Angeles County Flood Control District, to develop permanent flood protection areas for Mill Creek and other specific areas as part of a comprehensive flood plain management project. Mapping and evaluation of flood data has progressed to the point where an interim flood protection area in Mill Creek can be designated. Development is now occurring which will encroach within the limits of the permanent flood protection area and which will be incompatible with the anticipated uses to be permitted within the permanent flood protection area. If this ordinance does not take immediate effect, said uses will be established prior to the contemplated ordinance amendment, and once established may continue after such amendment has been made [because of the ‘grandfather’ provisions of the zoning code].” (Italics in original.)
By its terms, this ordinance temporarily prohibited appellant from rebuilding the structures lost to the February 1978 flood while the County *1369 studied what permanent measures it would have to take to prevent a recurrence of that deadly event. The interim ordinance did not affect eight of the twenty-one acres on the Lutherglen site because they were not in the flat land near the river channel.
Appellant’s “regulatory taking” cause of action was predicated solely on this temporary interim ordinance. Nor has First English ever amended its complaint to allege the permanent flood control ordinance enacted in 1981 constituted a “taking” of its property. Nonetheless, it is helpful to an understanding of the temporary measure to consider the terms of the permanent ordinance.
On November 8, 1980—22 months after the interim ordinance went into effect and 21 months after First English filed its lawsuit—the Los Angeles County Regional Planning Commission issued a report on a proposed permanent flood protection district encompassing the Mill Creek area. The commission found: “. . . [T]he subject property [restriction] represents one strategy in Los Angeles County’s comprehensive program to insure compliance with the requirements of the Federal Flood Protection Program by designation of a flood protection area along the stream bed of Mill Creek; . . .[T]his will be accomplished by the prohibition of buildings and major structures within the area reserved for flood flows which includes both the existing wash or channel and additional area as may be necessary to provide reasonable protection from overflow of flood waters, bank erosion, and debris deposition; . . \A\ll affected parcels still will have buildable areas; . . .Establishment of the proposed district at such location is in the interest of public health, safety, and general welfare. ...” (Regional Planning Com., L.A. County, Flood Protection Case No. 3-(5) Nov. 8, 1980, italics added.)
Pursuant to the commission’s findings and recommendations the board of supervisors enacted Ordinance No. 12,413. This ordinance, adopted August 11, 1981, created the Mill Creek Flood Protection District and superseded the interim flood-protection district of ordinance No. 11,855. The permanent building restriction encompasses the same area as the interim ordinance had. This permanent ordinance recites as its purpose: “The flood protection district is established as a supplemental district for regulation of property within areas designated by the Chief Engineer of the Los Angeles County Flood Control district as subject to substantial flood hazard. Such district includes both the existing wash or channel and additional area as necessary to provide reasonable protection from overflow of floodwaters, bank erosion, and debris deposition.”
*1370 Among other things, the permanent ordinance prohibits construction or reconstruction of most buildings within the district. The exceptions, however, do permit “accessory building structures that will not substantially impede the flow of water, including sewer, gas, electrical, and water systems approved by the county engineer . . . [a]utomobile parking facilities incidental to a lawfully established use . . . [and] [f]lood control structures. . . .” (L.A. County Code, 22.44.220.) Another provision instructs the county engineer to “enforce, as a minimum, the current Federal flood plan management regulations” when considering whether to issue building permits for buildings or other structures in this flood control zone.
If there is a hierarchy of interests the police power serves—and both logic and prior cases suggest there is—then the preservation of life must rank at the top. Zoning restrictions seldom serve public interests so far up on the scale. More often these laws guard against things like “premature urbanization” (A
gins
v.
Tiburon, supra,
The zoning regulation challenged in the instant case involves this highest of public interests—the prevention of death and injury. Its enactment was prompted by the loss of life in an earlier flood. And its avowed purpose is to prevent the loss of lives in future floods. Moreover, the lives it seeks to save and the injuries it strives to prevent are not only those on other properties but on appellant’s property as well.
We need not address the ultimate question—is the public interest at stake in this case so paramount that it would justify a law which prohibited
any
future occupancy or use of appellant’s land. Certainly, the owners of red cedar trees were not entitled to any public compensation when the state required them to destroy those trees in order to save the “lives” of apple trees in
Miller
v.
Schoene, supra,
We have no problem concluding these zoning restrictions represent a valid exercise of the police power and not an unconstitutional “taking without compensation.” On balance, the public benefits this regulation confers far exceed the private costs it imposes on the individual property owner (especially after factoring in the public benefits this property owner shares). These are the considerations the Supreme Court deemed to control the decision whether government should be compelled to award compensation when its regulations drastically limit the uses of private property.
(Agins
v.
Tiburon, supra, AA1
U.S. 255, 260-262 [
This case presents a dramatic illustration of the principle of “reciprocity of advantage.” Lutherglen is one of several properties running along this riverbed. Those who use Lutherglen are endangered by any structures that may be built on these other properties, just as those using the other properties are endangered by structures First English might erect on Lutherglen. First English enjoys the safety benefits accompanying the prohibition of construction on the other properties along the riverbed in return for the *1372 “reciprocal” safety benefits that flow to the other landowners because First English is subject to a similar ban.
The instant complaint contains no allegations controverting the legislative history nor does it present other facts we are entitled to judicially notice casting doubt on the avowed intent and effect of the interim ordinance. Indeed, after reciting the terms of the now-superseded ordinance the sole allegation is that “Ordinance No. 11,855 denies First Church all use of Lutherglen.” The complaint does not allege the limitations imposed on First English’s use of the property were motivated by a desire to acquire Lutherglen at a lower price or that it was unreasonable for the County to conclude these limitations would contribute substantially to the public safety.
The government is entitled to a presumption its regulations are motivated by and reasonably serve their avowed purposes
(Morse
v.
San Luis Obispo County, supra,
III. The Interim Ordinance Is Further Justified as a Reasonable Temporary Limitation on Construction to Maintain the Status Quo While the County Determined What, if Any, Structures Were Compatible With Public Safety
As an independent and sufficient ground for our decision, we further hold the interim ordinance did not constitute a “temporary unconstitutional taking” even were we to assume its restrictions were too broad if permanently imposed on First English. This interim ordinance was by design a *1373 temporary measure—in effect a total moratorium on any construction on First English’s property—while the County conducted a study to determine what uses and what structures, if any, could be permitted on this property consistent with considerations of safety. We do not read the United States Supreme Court’s decision in First Lutheran Church as converting moratoriums and other interim land-use restrictions into unconstitutional “temporary takings” requiring compensation unless, perhaps, if these interim measures are unreasonable in purpose, duration or scope. On its face, ordinance No. 11,855 is reasonable in all these dimensions.
The ordinance had the legitimate avowed purpose of preserving the status quo while the County studied the problem and devised a permanent ordinance which would allow only safe uses and the construction of safe structures in and near the river bed. The restrictions in ordinance No. 11,855 were reasonably related to the achievement of this objective. Given the seriousness of the safety concerns raised by the presence of any structures on this property, we find it was entirely reasonable to ban the construction or reconstruction of any structures for the period necessary to conduct an extensive study and fully develop persuasive evidence about what, if any, structures and uses would be compatible with the preservation of life and health of future occupants of this property and other properties in this geographic area.
We do not find the ordinance remained in effect for an unreasonable period of time beyond that which would be justified to conduct the necessary studies of this situation and devise a suitable permanent ordinance. The study was completed and a report containing recommended restrictions submitted in less than two years. County decisionmakers took another six months to hold hearings, ponder and pass the somewhat less-restrictive permanent ordinance. Thesfe periods are reasonable especially given the complexity of the issues to be studied and resolved. Nor were the restrictions imposed by the interim ordinance unreasonable in scope given the seriousness of the danger posed by the construction of new structures in Lutherglen and nearby properties. We cannot say that without a thoroughgoing study it would have been reasonably feasible to identify any structure which could be safely permitted on these properties. Thus we find the time taken by this study and the time this interim ordinance remained in effect to be well within the bounds of reason. The County owed this landowner no special duty to give priority to the study of Lutherglen over the study of other properties which might pose a danger to safety. Nor did it owe any of these landowners a duty to cut any corners in the study or take any risks *1374 that anything might be overlooked which could produce a permanent ordinance less restrictive than public safety concerns demanded.
IV. Since There Was No Unconstitutional “Taking” of Lutherglen, First English Has Not Stated a Cause of Action Entitling It to Compensation
Since we hold the instant complaint is insufficient to state a cause of action that the limitations imposed by the interim ordinance represented an unconstitutional “taking” of First English’s property it follows First English is not entitled to compensation for a “temporary taking” between the time the interim ordinance was enacted and it was superseded by the somewhat less restrictive permanent ordinance. The Supreme Court’s majority opinion in First Lutheran Church held property owners are entitled to compensation for so-called “temporary takings”, but only where the government regulation in question is ultimately ruled to have worked an unconstitutional taking. “Invalidation of the ordinance or its successor ordinance after this period of time, though converting the taking into a ‘temporary’ one, is not a sufficient remedy to meet the demands of the Just Compensation Clause. . . .We merely hold that where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” (First Lutheran Church v. Los Angeles County, supra, 482 U.S. at pp. 319, 321 [96 L.Ed.2d at pp. 267, 268].) Here we find interim ordinance No. 11,855 did not “work a taking of all use” of appellant’s property. Consequently, there is no “duty to provide compensation for the period during which [that ordinance] was effective.”
Disposition
The judgment dismissing the cause of action for inverse condemnation based on enactment of ordinance No. 11,855 is affirmed for the reasons recited in this opinion. In all other respects the opinion this court filed on June 25, 1985, and in which remittitur issued on November 4, 1985, remains in full force and effect. Accordingly, the case is remanded for further *1375 proceedings consistent with that opinion as to the cause of action for inverse condemnation based on cloud seeding.
Lillie, P. J., and Woods (Fred), J., concurred.
A petition for a rehearing was denied June 23, 1989, and appellant’s petition for review by the Supreme Court was denied August 25, 1989. Lucas, C. J., Panelli, J., and Kaufman, J., were of the opinion that the petition should be granted.
Notes
The vegetation of a watershed area normally protects against flooding because the vegetation slows the flow of water, which can then percolate into the soil or be carried away by streams. When the vegetation is burned, however, there is no slowing of the flow, and the crust on the ground formed by the fire’s intense heat prevents percolation of water into the soil. Additionally, the ash and debris from the fire increase the bulk of the flow, known as the bulking factor, which increases the erosion damage caused by the runoff.
Mill Creek at Lutherglen had a capacity of about 6,000 cubic feet of water per second (cfs). During the storm, the peak runoff just below Lutherglen was 8,800 cfs, 6,100 cfs of which came from Middle Fork and 2,700 cfs of which came from Mill Creek. Normally, had the watershed area not been burned, the flow from Mill Creek would have exceeded the flow from Middle Fork. Approximately 380,000 cubic yards of debris and sediment were carried by the runoff from the watershed area. About 12,000 cubic yards were deposited behind the highway at M.M. 16.56, about 38,000 cubic yards were deposited in Lutherglen, and the rest was deposited at Hansen Dam.
All references concerning the complaint refer to the second amended complaint for inverse condemnation filed on January 5, 1981.
Hereafter all section references are to the Government Code unless otherwise indicated.
In
Agins
v.
Tiburon
(1979)
“Four times this decade, we have considered similar claims and have found ourselves for one reason or another unable to consider the merits of the
Agins
rule. See
MacDonald, Sommer & Frates
v.
Yolo County,
First Lutheran Church
and another land use case decided the same
term—Nollan
v.
California Coastal Commission
(1987)
The first Supreme Court case to address the constitutionality of municipal zoning itself was
Euclid
v.
Ambler Realty Co.
(1926)
The essence of this test was set forth in 1922 when the court denied relief to a homeowner whose house was threatened with damage because of a coal mining operation beneath his property.
(Pennsylvania Coal Co.
v.
Mahon
(1922)
For reasons discussed in the next section, the instant case resembles Keystone Bituminous Coal much more than it does Pennsylvania Coal. However, here the public safety concerns are far more dominant than they are even in Keystone Bituminous Coal.
This reconciliation of the two formulations finds considerable support in another opinion filed during the same term as
First Lutheran Church—Keystone Bituminous Coal Assoc,
v.
De Benedictis, supra,