Lead Opinion
In First Lutheran Church v. Los Angeles County (1987) 482 U.S. B04, 321 [
I.
Because of the complexities of this case, a somewhat detailed recitation of the facts is in order. The case centers on the efforts of plaintiff Landgate, Inc.,
In the mid-1980’s, the County of Los Angeles (the County) planned to provide an east-west road that would run through the two lots. The landowner and the County agreed that, in exchange for the owner’s dedicating portions of the parcels for the roadway easement, the County would reconfigure the lots into a single, sloped 2.45-acre lot north of the road and a single, flat 1.56-acre lot south of the road, each still zoned for a single-family home. The County completed the road improvement, designated as De Butts Terrace, and formally approved a lot reconfiguration, which was recorded July 5, 1989.
The lots in question are, and at all relevant times were, in the coastal zone (Pub. Resources Code, § 30103) and therefore subject to the development
In October 1990, Landgate bought the sloped northern lot and received County approval in concept for grading and building plans for a single-family home to be built on the property. Landgate applied to the Commission for permits to build the house and related structures. Landgate’s permit application sought approval of a 9,036-square-foot home and guest house, a swimming pool and septic tank and 8,500 cubic yards of grading. As originally proposed, the house was 44 feet above existing grade. Before the Commission’s initial consideration of the development, Landgate modified its proposal by reducing the house to 7,500 square feet, eliminating the guest house and reducing the proposed grading to 4,300 cubic yards.
At its December 1990 and February 1991 meetings, the Commission was presented with staff reports objecting to several aspects of the project. First, staff was concerned with visual impacts of the house, since it was located next to Escondido Canyon, “a highly scenic area which includes a hiking trail to Escondido Falls. The proposed project is located south and west of Escondido Canyon and is visible from the Escondido Falls Trail and the Escondido Falls.” The preservation of scenic and recreational resources of the coastal area is encouraged by both the Coastal Act and the Malibu LUP. (See Pub. Resources Code, § 30251.) Staff concluded that the visual impact of Landgate’s proposed development would be significant both because of its location on the lower, northern lot closer to the trail and falls, and because of the 44-foot height, 9 feet above the allowable height contained in the Malibu LUP.
Second, staff found the amount of grading required of the proposed project to be objectionable. “In essence, the applicant is creating a large level pad area on a hillside lot, instead of designing the house to conform with the natural topography.” The grading plan was contrary to the Malibu
These concerns and objections were inextricably linked to staff’s third concern, that the Commission had not approved the lot line adjustment obtained from the County by Landgate’s predecessor in interest. As noted, prior to the approval of the lot line adjustment, the length of the lots ran in a north to south direction standing side-by-side east to west. If the old lots had remained, then development could have been directed to the more topographically and visually suitable southern portion of the property. Staff further concluded that the lot line adjustment had been illegal. It reached its conclusion as follows: It first observed that section 30106 of the Public Resources Code contains a broad definition of “development” for which a coastal development permit is necessary. “ ‘Development’ means, on land, in or under water, the placement or direction of any solid material or structure; discharge or disposal of any drenched material or any gaseous, liquid, solid, or thermal waste; grading, removing, dredging, mining, or extraction of any materials; change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act . . . and any other division of land, including lot splits, except where the land division is brought about in connection with the purchase of such land by a public agency for public recreational use . . . .” (Ibid., italics added.) Staff then cited a 1986 memorandum from the Attorney General circulated to the Commission concluding that “[a] lot line adjustment is a form of a lot split. In some instances, a lot line adjustment may be so minor as to warrant the Commission finding that it is de minimis and qualifies for a waiver pursuant to section 30624.7. In other instances a lot line adjustment may be such that it does bring about a major change in the density or intensity of use of land. In such a case it would fall within the definition of development in section 30106, and would necessarily require a coastal development permit.”
The staff report then considered whether the lot line adjustment in question “involves a major change in the density or intensity of land-use.” It concluded that while a lot line adjustment did not alter the density of development it would alter its intensity: “The topography north of De Butts Terrace is relatively steep and not suited to development. This proposed project would change the intensity of land-use in this area by allowing development of the north side of the road. . . . Staff believes that the least environmentally damaging site for development is on the coastal [i.e. southern] side of De Butts Terrace and that the original lot configuration of long thin parcels extending across the road should not be altered.”
At its February 1991 meeting the Commission denied Landgate’s application. It adopted staff findings that the proposed house and related structures would produce excessive soil, grading, and visual degradation.
In March 1991, Landgate filed a petition for writ of mandate against the Commission asserting that the Commission had no jurisdiction over the lot line adjustment. The petition was conjoined with a complaint asserting a taking of property without just compensation and a denial of civil rights, seeking damages and declaratory relief. The mandate petition and takings complaint were severed, with the latter reserved for later adjudication.
Meanwhile, in April 1991, the Commission heard Landgate’s request for reconsideration of its project. Grounds for reconsideration of an application exist when “there is relevant new evidence which, in the exercise of reasonable diligence, could not have been presented at the hearing ... or that an error of fact or law has occurred which has the potential of altering the initial decision.” (Pub. Resources Code, § 30627, subd. (b)(3).) At that meeting, Landgate’s representative presented a new version of the proposed residence that would be only 32 feet above the existing natural grade, would have
The above-mentioned litigation proceeded and in October 1991 the trial court granted Landgate’s petition for writ of mandate. Specifically, the trial court set aside the Commission’s action of February 1991 denying Land-gate’s application and ordered the Commission to reconsider the application. The court found that, in view of the factual circumstances in this case, the definition of “development” as found in Public Resources Code section 30106 “does not include the lot line adjustment approved and recorded by the County of Los Angeles in 1989 with regard to the subject property. Therefore, upon remand to the Commission, the Commission must consider [Landgate’s] application without any reference or consideration of a lot line adjustment. The Commission is to consider the subject property to be a legal lot.” The court did not order the approval of any particular development proposal.
The Court of Appeal affirmed the trial court in an unpublished decision in December 1992. In arriving at its conclusion, the court found significant the fact that Landgate had purchased a lot that had been approved by the County and had been recorded, that the Commission had approved the construction of the road, De Butts Terrace, that made the then existing lot configuration impractical and necessitated the lot line adjustment, and that the Commission’s position with respect to the lot line adjustment would render Land-gate’s property valueless. In essence, it held that Public Resources Code section 30106 did not authorize the Commission to invalidate a legally recorded lot line adjustment to which the Commission, by its actions and
In February 1993, the Commission again considered Landgate’s project, which had been modified by reducing grading to 2,893 cubic square yards, by reducing height to 35 feet above existing grade, and by reducing the fill slope, among other changes. It required further changes in the project to address the visual impacts and erosion problems that it had earlier found to be objectionable. Specifically, it imposed a height limitation of 28 feet above existing grade on the proposed residence, and required a drainage plan as well as color restrictions and landscape requirements consistent with the scenic preservation with which the Commission was concerned. Landgate did not challenge these conditions.
Subsequently, Landgate moved for summary adjudication of its still-unresolved takings claim. It contended that the Commission’s erroneous assertion of permit jurisdiction over the lot line adjustment prevented it from making any economically viable use of its property for the period prior to the Commission’s approval of its project in February 1993. The Commission moved for summary judgment, contending that its jurisdictional error did not constitute a taking of Landgate’s property. The trial court granted Land-gate’s motion, ruling that the Commission had temporarily taken Landgate’s property from February 1991 to February 1993. In its statement of decision, the trial court declared that “Landgate’s third cause of action for taking of property without just compensation ... is meritorious as a matter of law . . . because Landgate has been deprived, at least temporarily, of all economically viable or productive use of its property insofar as Landgate, at least temporarily, could not legally obtain any valid permits or approvals to construct any project on its property as a result of the Commission’s actions.” The trial court also denied the Commission’s motion for summary judgment. After a bench trial on the issue of damages, the trial court awarded takings damages of $155,657 for the period between February 1991 and February 1993. The Commission appealed the grant of summary adjudication and the award of attorney fees. Landgate filed an appeal contesting the amount of damages and filed a separate notice of appeal from the trial court’s award of costs and attorney fees.
The Court of Appeal affirmed the trial court’s grant of summary adjudication in Landgate’s favor. It appeared to accept the Commission’s assertion
II.
A.
Before addressing the present issue, we briefly summarize pertinent takings jurisprudence. In determining whether a government regulation works a taking of property under the Fifth Amendment to the United States Constitution, the United States Supreme Court has generally eschewed any “set formula” for determining how far is too far, preferring to engage in “ ‘essentially ad hoc, factual inquiries.’ ” (Lucas v. South Carolina Coastal Council (1992)
In Agins v. City of Tiburon (1979)
The First English court emphasized the narrowness of its holding. “We . . . point out that the allegation of the complaint which we treat as true for purposes of our decision was that the ordinance in question denied appellant all use of its property. We limit our holding to the facts presented, and of course do not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us.” (First English, supra,
Consistent with this implied limitation on the temporary takings doctrine, the United States Supreme Court has also “made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking. [Citation.] The reasons are obvious. A requirement that a person obtain a permit before engaging in a certain use of his or her
Finally, the Supreme Court has emphasized that the question whether property has been taken is not ripe for decision until a government agency has rendered a final decision on the use to which the property in question may be put. “Our reluctance to examine taking claims until ... a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause. Although ‘[t]he question of what constitutes a “taking” for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty’ [citation], this Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. [Citations.] Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” (Williamson Planning Comm’n v. Hamilton Bank (1985)
B.
The present case poses the issue of whether a legally erroneous decision of a government agency during the development approval process resulting in delay constitutes a temporary taking of property. Virtually every court that has examined the issue has concluded, for various reasons and under various theories, that a regulatory mistake resulting in delay does not, by itself, amount to a taking of property. (See Littoral Development Co. v. San Francisco Bay Conservation etc. Com. (1995)
In Steinbergh v. City of Cambridge, supra,
The Steinbergh court then considered the argument that the invalidated regulation did not “ ‘substantially advance legitimate state interests’ ” and therefore was a taking of property under the test articulated by the Supreme Court. (Steinbergh, supra,
Our own Court of Appeal has reached a similar conclusion. (See Del Oro Hills v. City of Oceanside, supra,
We substantially agree with the Supreme Judicial Court of Massachusetts, with our Court of Appeal, and with the other courts cited above that an error by a governmental agency in the development approval process does not necessarily amount to a taking even if the error in some way diminishes the value of the subject property, any more than the commission of state law error during a criminal trial is an automatic violation of the due process
An analogous situation may be found when the government initiates condemnation proceedings against an undeveloped tract of land, thereby bringing the development process to a standstill. We have held that when a government agency later abandoned such proceedings, it was not liable under the takings clause, even when the proceedings caused substantial delay in the development approval process and led to losses in the property’s value. (Agins v. City of Tiburon, supra, 24 Cal.3d at pp. 271, 277-278 [eminent domain proceeding active for almost one year before abandonment].) The United States Supreme Court affirmed this aspect of our Agins decision, agreeing that we had “correctly rejected the contention that the municipality’s good-faith planning activities, which did not result in successful prosecution of an eminent domain claim, so burdened the appellants’ enjoyment of their property as to constitute a taking. [Citation.] Even if the appellants’ ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are ‘incidents of ownership. They cannot be considered as a “taking” in the constitutional sense.’ ” (Agins v. Tiburon, supra,
The Court of Appeal did not hold that all governmental mistakes in the land use process amounted to takings. The Court of Appeal held rather,
The Court of Appeal erred in its attempt to divine, through the statements of commissioners and Commission staff and through circumstantial evidence, the “true,” illegitimate, motive for the Commission’s decision to deny Landgate’s development permit. The proper inquiry is not into the subjective motive of the government agency, but whether there is, objectively, sufficient connection between the land use regulation in question and a legitimate governmental purpose so that the former may be said to substantially advance the latter. (See Nollan v. California Coastal Comm’n (1987)
Moreover, the cases suggest that judicial review of governmental conditions imposed upon development will be more deferential when the conditions are simply restrictions on land use and not requirements that the property owner convey a portion of his property (see Nollan, supra,
The Commission’s denial of Landgate’s permit in February 1991 did indeed appear to substantially advance legitimate governmental interests and to be supported by substantial evidence. The Commission’s findings articulated three objections to the project as proposed. First, the Commission was concerned that the large house, 44 feet above natural grade and 9 feet above the maximum allowable height set forth in the Malibu LUP, would be unsightly when viewed from Escondido Trail and Escondido Falls. Second, the Commission was concerned that excessive grading on the north slope, where the house was to be built, was contrary to the Malibu LUP, which called for the minimization of grading for all new development, “to ensure the potential negative effects of runoff and erosion on [visual] resources are minimized.” These are unquestionably legitimate government purposes (see Ehrlich v. City of Culver City, supra,
The third Commission objection, the improper lot line adjustment, was principally based not on formal, jurisdictional or bureaucratic grounds, but on the view that such adjustment would lead to an intensification of the environmental impacts with which the Commission was concerned. Based on our review of the record, as discussed above, the Commission’s position appears reasonable and supported by substantial evidence. It found that the placement of the house on the north slope would make it more unsightly, bringing it closer to Escondido Trail and Escondido Falls, and would also obviously increase the need for grading—and with it the potential for erosion—in order to create a flat pad for the proposed residence on a sloping surface. The Commission’s preference for construction on the flat south side of De Butts Terrace was therefore reasonable. In sum, the denial of a development permit in February 1991 on the three enumerated grounds advanced legitimate governmental interests in minimizing erosion and unsightly development in the coastal area.
We do not agree with the Court of Appeal that anything in the record establishes that the Commission was motivated in its decisions by a “jurisdictional spat” with the County. The Court of Appeal quotes the statement made by one of the commissioners after denial of the application that “the county’s refusal to recognize our right to review lot line adjustments” was
Nor are we persuaded by the Court of Appeal’s conclusion that the Commission’s decision must not have been based on legitimate environmental concerns because it “could have imposed special conditions on matters such as height in February 1991, but failed to issue the permit until after the lot line question was resolved in February 1993.” From the Commission’s point of view, the environmental impacts of the project could have been reduced if the original lot line configuration was maintained. Once the Commission was confronted by a court ruling that made restoration of the original configuration impossible, it settled for what it regarded as the next best alternative: permitting development on the north side of De Butts Terrace, but with conditions imposed to reduce these environmental impacts. There is therefore no inconsistency between the Commission’s environmental concerns and the respective positions it adopted throughout the development approval process.
The Court of Appeal also concluded that since the Commission may have approved or was going to approve two homes on the same sloping north side as Landgate’s parcel, “those approvals are clear indications that but for the lot line adjustment, Landgate’s application to build a house and related structures on its property could and would, through the normal negotiation process, have been approved by February 1991 or shortly thereafter.” But it is clear that the Commission had a policy to concentrate development in the area on the flat south side of De Butts Terrace. The fact that there may have been exceptions to this policy, based on considerations particular to these specific projects, for reasons not present in the current administrative record and about which we can only speculate, does not negate the fact that the Commission had a rational policy preference for concentrating development on the south side of De Butts Terrace.
It would be, of course, a different question if, even though the Commission’ s position on the lot line adjustment substantially advanced a legitimate state interest, that position was so unreasonable from a legal standpoint as to lead to the conclusion that it was taken for no purpose other than to delay the development project before it. Such a delaying tactic would not advance any valid government objective. Here, however, as discussed, the Commission’s
Indeed, the Court of Appeal’s earlier decision on the lot line issue was based not on the Commission’s general lack of authority over such issues, or even on the fact that invalidation of the lot line would deprive Landgate of property, but rather on the court’s determination that the Commission’s earlier course of conduct had constituted a kind of acquiescence to the lot line adjustment. Although the Court of Appeal may have been correct on that point, and the Commission mistaken given the peculiar facts of this case, its position was not so objectively unreasonable as to give rise to the inference that it was adopting that position solely for purposes of delay or some other illegitimate reason.
C.
Landgate’s argument that the Commission temporarily took its property rests on somewhat different grounds than those on which the Court of Appeal holding was based. Landgate argues that regardless of whether the Commission’s lot line adjustment condition substantially advanced a legitimate state interest, the imposition of such condition was nonetheless a taking because it temporarily deprived Landgate’s property of all value. Landgate contends that from the time the development permit was denied in February 1991 until the time it was approved in February 1993 after the lot line issue had been resolved by litigation, the development process was at a standstill, effectively depriving the property of all economic benefit. Landgate cites the Petrovsky Declaration, discussed above, as evidence that the Commission refused to continue negotiation with Landgate as long as the jurisdictional dispute over the lot line adjustment was pending. Landgate argues that the Commission’s actions amount to a denial of all economically beneficial use
Of course, each time there is a delay in the development process, the delay may be said to temporarily deprive the developer of undeveloped property of use of that property. From the would-be developer’s point of view, the impact of ordinary delay due to a governmental mistake on the one hand, and denial of all feasible use on the other, may be identical. But as discussed above, for purposes of the takings doctrine the two types of governmental action are quite different. (See First English, supra,
Landgate asserts, however, that what is at issue in this case was not a normal development delay due to the Commission’s mistake, but in fact a final Commission decision to ban all development of Landgate’s property, a position the Commission was forced to abandon only because it lost on the jurisdictional question. More specifically, Landgate contends the Commission’s position that the former lot lines be preserved, combined with its insistence that no development take place north of De Butts Terrace, rendered Landgate’s lot valueless, because its lot was situated wholly to the north of De Butts Terrace. To state the argument differently, if, for example, a municipality’s ordinance denies a parcel of real property all economically feasible use, it would arguably be no defense to a temporary takings claim to show that the ordinance was eventually invalidated for being inconsistent with the municipality’s general plan.
In considering whether the Commission’s actions constituted in fact a denial of all economically feasible use, we first note that the Supreme Court has characterized the circumstances under which a categorical taking occurs under these circumstances as “extraordinary” and “relatively rare.” (Lucas, supra, 505 U.S. at pp. 1017, 1018 [112 S.Ct. at pp. 2894, 2894-2895].) In Lucas, for example, the court was confronted with South Carolina’s Beachfront Management Act, which authorized a government agency to establish a coastal zone in which no development could occur, and which “had the direct effect of barring [the property owner] from erecting any permanent habitable structures on his two parcels.” (Id. at p. 1007 [
Landgate ignores the critical difference between this case and Lucas and First English. An understanding of this difference begins with the principle that “the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking.” (United States v. Riverside Bayview Homes, Inc., supra,
In California, one of the conditions of obtaining a permit for development within the coastal zone is the procurement of a coastal permit. The Commission’s authority to approve development is concurrent with the authority of local jurisdictions, and thus compliance with the Subdivision Map Act does not excuse compliance with the Coastal Act. (See Pub. Resources Code, § 30106; see also South Central Coastal Regional Com. v. Charles A. Pratt Construction Co. (1982)
The nature of the Commission’s actions comes into clearer focus if we alter the facts of this case slightly. Suppose the original owner of two lots that ran lengthwise in a north to south direction, east and west of each other, which we will designate as lots A and B, decided to reconfigure the lots into two lots running lengthwise east to west, north and south of each other, lots C and D. The owner submitted development plans for lot C, but the Commission denied development because in its view such a lot did not legally exist, and because to recognize such a lot would have certain detrimental environmental consequences. This decision cannot be fairly characterized as a deprivation of all value of lot C, but simply as a refusal to reconfigure lots A and B. Even if it turned out that the Commission had incorrectly asserted its jurisdiction, it would have committed the state law error of improperly refusing to reconfigure lots A and B, not the constitutional one of denying development on lot C. Or to put it another way, the Commission’s denial of development on lot C is not a final decision on that development until the dispute over whether lot C legally existed was resolved. Just as the denial of a permit for failing to properly submit to the CEQA process would not be a taking, even if the government’s application
The present case differs from the above hypothetical in that “lot C” was sold to a subsequent purchaser rather than kept by the original owner. But it cannot be the case that this subsequent purchase had a constitutional significance, converting the Commission’s assertion of its regulatory jurisdiction to approve lot reconfigurations into a taking of property.
The present case also differs from the hypothetical because a road was built through lots A and B, thereby supporting Landgate’s argument that even if the Commission had jurisdiction over a lot line adjustment, it had implicitly waived its right to deny that adjustment by acquiescing in construction of the road. But the existence of the road, while it may have been grounds for finding that the Commission erred in failing to recognize the legal existence of “lot C,” did not convert the Commission’s state law error into a taking. Again, the Commission could legitimately require that a lot on which development was requested be legal, when, as here, there are legitimate reasons for so requiring. Therefore, when the Commission determined that Landgate’s lot was not legal, it could legitimately litigate the lot line question without offending the takings clause. The Commission could not be said to have reached a final and authoritative determination of the development on Landgate’s lot until after the dispute about the legality of the lot had been resolved.
Of course, as explained in the preceding part of this opinion, a government agency may not evade the takings clause by fabricating a dispute over the legality of a lot, or by otherwise arbitrarily imposing conditions on development in order to delay or discourage that devélopment. The government agency’s assertion of authority, whether or not erroneous, must advance some legitimate government purpose. But as discussed above, the Commission’s actions in this case met this constitutional prerequisite.
In light of the foregoing, the difference between this case and First English becomes clear. Here, there was a postponement of development
Landgate indeed appears to argue that any impasse in the regulatory process that must be resolved through a judicial proceeding is a temporary taking rather than a normal delay in development. But First English merely stands for the proposition that once a government action finally denies all economically viable use of property, the fact that the government later rescinds that action after a judicial proceeding does not relieve it of its duty to pay compensation. (First English, supra,
In fact, a review of our case law reveals numerous instances in which developers have sought a writ of mandate against public agencies over questions regarding lot configuration, compliance with the Subdivision Map Act, compliance with CEQA, and over other threshold questions that must be resolved before it can be determined whether a development should be permitted to proceed. The resolution of these cases often turns on the construction and application of complex statutory schemes and results in significant delays in the development process. In some cases, the developer succeeded in overturning the public agency’s decision on these threshold development questions. (See, e.g., Morehart v. County of Santa Barbara (1994)
Landgate does not appear to contend that litigation over threshold development questions is a taking of property if the government agency prevails in such litigation. But to conclude that such litigation is a normal part of the regulatory process when the public agency prevails but a per se temporary taking when the public agency loses has no basis in either logic or Supreme Court precedent.
In sum, Landgate has not demonstrated that the development delay between February 1991 and February 1993 was due to anything other than a bona fide dispute over the legality of Landgate’s lot and the Commission’s jurisdictional authority over the lot line adjustment. Such delay is an incident of property ownership and not a taking of property. (See Agins v. Tiburon, supra,
Ill
For all the foregoing reasons, the judgment of the Court of Appeal is reversed and the cause is remanded to the Court of Appeal. The Court of Appeal shall remand to the trial court with directions to grant the Commission’s motion for summary judgment against Landgate’s takings claim and to deny Landgate’s motion for summary adjudication.
George, C. J., Kennard, J., and Werdegar, J., concurred.
Notes
The full name of this case is First English Lutheran Church of Glendale v. County of Los Angeles. We will hereinafter follow the common practice of referring to the case as First English.
According to Landgate’s first amended complaint, Peter and Punte Bogart “owned and controlled” Landgate and held a life estate in the subject property.
According to Commission regulations, a vote by the Commission that is “consistent with [the] staff recommendation and not otherwise modified, . . . shall be deemed to adopt the findings and conclusions recommended by the staff.” (Cal. Code Regs., tit. 14, § 13092, subd. (d).) Thus, the Commission, in denying the application consistent with the staff report, is deemed to have adopted the staff’s proposed findings discussed above.
We note at the outset that this case comes to us after a grant of Landgate’s summary adjudication motion on its claim that its property was taken without just compensation and a denial of the Commission’s motion for summary judgment. Thus, we undertake independent review of the record to determine whether a triable issue of fact exists as to the takings claim. (Engalla v. Permanente Medical Group, Inc. (1997)
The principle that a government agency will not be liable in damages for state law errors committed in the development approval process is congruent with Government Code section 818.4, which provides that a public entity cannot be held liable “for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny,
The Court of Appeal’s prior, unpublished decision regarding the lot line issue is now final and may not be relitigated. (See Kavanau v. Santa Monica Rent Control Bd. (1997)
The Commission and some of its amici curiae argue that a government exercise of power that is beyond its jurisdictional authority can never be a taking. The argument is based on the principle that the takings clause only authorizes compensation for “a taking of private property for public use,” and that when a government’s action is ultra vires because the agency has exceeded its statutory authority, it cannot as a matter of law be said to have taken property for public use. Some federal courts appear to accept this rationale, holding that the Tucker Act (28 U.S.C. § 1491), creating a statutory procedure by which those who have had their property taken by the United States Government may file a claim for compensation, does not cover “ ‘an executive taking not authorized by Congress, expressly or by implication.’ [Citations.] (‘[Bjefore a compensable taking can be found by the court, there must be some congressional authorization, expressed or implied, for the particular taking claimed.’) Thus, claimant must concede the validity of the government action which is the basis of the takings claim to bring suit under the Tucker Act. . . .” (Tabb Lakes, Ltd. v. U.S., supra, 10 F.3d at pp. 802-803.) Because we decide the issue on other grounds, we do not decide the question whether the action of a government agency that exceeds its statutory authority can ever be a compensable taking.
We also note that in First English on remand, the Court of Appeal held that no taking of property had resulted because the owner was still permitted significant use. (First English Evangelical Lutheran Church v. County of Los Angeles (1989)
We note that the innocent purchaser of an illegal lot is not left without a remedy. There may well be private remedies available. (See, e.g., Goodspeed v. Associated Almond Growers (1929)
Dissenting Opinion
The takings clause of the federal Constitution guarantees property owners “just compensation” when their property is “taken for public use.” (U.S. Const., 5th Amend.) In First Lutheran Church v. Los Angeles County (1987)
First English involved a Los Angeles County ordinance that the plaintiff alleged prohibited all use of its property. (First English, supra,
Here, the California Coastal Commission (Commission) made clear that it opposed the lot line adjustment that created Landgate’s lot, and therefore
The majority notes that the high court did not decide in First English whether “normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like” would amount to a temporary taking. (First English, supra,
In his dissent in First English, Justice Stevens articulated the precise argument on which the majority relies here. Specifically, Justice Stevens asserted, as does the majority here (maj. opn., ante, at p. 1030), that litigation over the validity of a land use restriction is simply a “normal delay[]” in the permit approval process and therefore cannot give rise to a temporary taking. (First English, supra,
I agree with the majority “that a government agency may deny a development permit when the reasonable conditions imposed on development are not met . . . .” (Maj. opn., ante, at p. 1027.) I also agree that “a judicial determination of the validity of certain preconditions to development is a normal part of the development process, and . . . does not constitute a per se temporary taking.” (Maj. opn., ante, p. 1030, original italics.) Nevertheless, if the “preconditions to development” have the effect of prohibiting all use of the property regardless of the circumstances, then they constitute a taking. If those preconditions are permanent, then the taking is permanent; if those preconditions are temporary, then the taking is temporary. The majority cites numerous cases (maj. opn., ante, at pp. 1030-1031) in which litigation delay was “a normal part of the regulatory process.” (Maj. opn., ante, at p. 1031.) I find these cases irrelevant to the issue before us. First, these cases do not address whether the litigation delay constituted a temporary taking. Second, I do not argue that, in this case, the litigation delay by itself gave rise to the temporary taking; rather, I argue that the Commission’s total and final ban on all use of Landgate’s property (which existed during the litigation delay) gave rise to the temporary taking. As long as that total ban was in effect, the temporary taking continued.
In First English, the court held 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 English, supra,
Baxter, J., concurred.
Dissenting Opinion
The more things change, the more they remain the same. That is certainly true with respect to this court’s takings jurisprudence. Almost 20 years ago, Justice Brennan, dissenting in San Diego Gas & Electric Co. v. San Diego (1981)
I dissent.
Viewing pure democracy as incompatible with personal security or the rights of property (Madison, The Federalist No. 10 (Rossiter ed. 1961) p. 81),
The prohibition of the takings clause is one expression of the constitutional commitment to limiting government and maximizing individual liberty. The protection of private property guaranteed by the Fifth Amendment presupposes the property is sought for legitimate purposes, out of a desire to improve the public condition. It nevertheless prohibits appropriation of property—even for such beneficial purposes—without just compensation. The difficulty inherent in trying to reconcile popular self-government with private ownership of property has propelled the Supreme Court’s takings
“[RJecent cases,” according to one scholar, “have done little to clarify the [Takings] Clause, and the doctrine remains in perplexing disarray.” (McUsic, Looking Inside Out: Institutional Analysis and the Problem of Takings (1998) 92 Nw. U. L.Rev. 591, 592, fn. 2 [citing treatises and law review articles over the past 15 years]; Schroeder, Never Jam To-day: On the Impossibility of Takings Jurisprudence (1996) 84 Geo. L.J. 1531.) Despite the general impossibility of its takings jurisprudence, in Lucas v. South Carolina Coastal Council (1992)
If Lucas means what it says, it establishes a categorical rule. No amount of judicial legerdemain can transform its objective, bright-line standard into a license for courts to engage in prohibited forms of “case-specific inquiry into the public interests advanced in support of’ (Lucas, supra,
After paying grudging lip service to Lucas's categorical rule, the majority falls back on Penn Central’s squishy “multi-factor” test, a standard so amorphous it is capable of producing virtually any result. This is the very test Lucas overruled pro tanto in cases, like this one, where the restraint at issue denies all economic use. The tortuous logic by which today’s majority
First, the majority resuscitates the Penn Central test in this case by ignoring another equally clear precedent. In First Lutheran Church v. Los Angeles County (1987)
Mystifyingly, the majority then instructs us that “[virtually every court that has examined the issue has concluded . . . that a regulatory mistake resulting in delay does not, by itself, amount to a taking of property.” (Maj. opn., ante, at p. 1018.) True enough. But none of the 10 cases cited in support of this patently obvious conclusion refutes the plaintiff property owners’ claim for just compensation in this case.
Two of these “noncompensable delay” cases preceded Lucas-, in the remainder, the court found either that the agency had not reached a final decision or that the regulation did not deny the owner all beneficial use. (See Littoral Development Co. v. San Francisco Bay Conservation etc. Com. (1995)
Lucas itself teaches that its categorical rules do not apply unless the restraint at issue deprives the property owner of all economic use. (Lucas,
Only recently, the court underlined the limited contours of “ripeness” in the takings context. In Suitum v. Tahoe Regional Planning Agency (1997)
This is not a case in which the property owners contend, as the majority would have it, that “a regulatory mistake resulting in delay . . . , by itself,
The majority dodges the otherwise inevitable result by changing the question; “The present case poses the issue of whether a legally erroneous decision of a government agency during the development approval process resulting in delay constitutes a temporary taking of property.” (Maj. opn., ante, at p. 1018.) “Legally erroneous”? “Process”? “Delay”? Of course mere “delay” in a “process” resulting from an “erroneous decision” does not qualify as a constitutional violation. If it did, every “mistake” by government land use authorities leading to any delay in the owner’s use of her property would require compensation. A massive raid on the public fisc would ensue. Suppose, however, the question were differently, more evenhandedly, framed as one that “poses the issue of whether a regulatory decision barring any use of property until the agency’s decision is overturned by a court constitutes a temporary taking of property?” What result then? That, rather than the majority’s tendentious formulation, is the issue presented by this case.
In any event, the majority’s trick question has already been asked and answered. As Justice Chin points out in his dissent (see dis. opn. of Chin, J., ante, at pp. 1033-1034), the identical position espoused by the majority— that litigation over the validity of a land use restriction is simply a “normal delay” in the permit approval process and thus cannot give rise to a temporary taking—was advanced by Justice Stevens in his dissenting opinion in First Lutheran. (See 482 U.S. at pp. 334-335 [107 S.Ct. at pp. 2396-2397].) The precise issue has thus already been considered and rejected by the high court. (See dis. opn. of Chin, J., ante, at p. 1034.)
What the Supreme Court’s categorical rule in Lucas means for property owners, and what the majority refuses to acknowledge, is that after Lucas, Justice Holmes’s famous apothegm in the Rock Island Railroad case, that “Men must turn square comers when they deal with the Government” (Rock Island & c. R. R. v. United States (1920)
To further confuse the discussion, the majority plunges into a lengthy disquisition on the connection between the land use regulation at issue here and the legitimate governmental purposes it arguably advances. This, of course, is the formulation developed in Dolan v. City of Tigard (1994)
“On the other side of the balance,” the Lucas majority continued, “affirmatively supporting a compensation requirement, is the fact that regulations that leave the owner of land without economically beneficial or productive options for its use—typically, as here, by requiring land to be left substantially in its natural state—carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. [Citations.] As Justice Brennan explained: ‘From the government’s point of view, the benefits flowing to the public from preservation of open space through regulations may be equally great as from creating a wildlife refuge through formal condemnation or increasing electricity production through a dam project that floods private property.’ ” (
It is evident the majority is unwilling to come to terms with the true meaning and operative effect of Lucas and First Lutheran. At every turn, its opinion reflects the abiding conviction that takings jurisprudence has not advanced a single step beyond the “regulatory friendly” analysis of Penn Central. At every opportunity, the majority reverts to Penn Central's ad hoc factual inquiry. Limning all this reasoning is the vocabulary of “balance.” Instead of confronting the meaning of Lucas as it applies in this case, the
The majority’s discussion concludes with a proposition that is flatly incompatible with Lucas: “[W]e must determine not whether a sinister purpose lurked behind the [c]ommission’s decision, but rather whether the development restrictions imposed . . . substantially advanced some legitimate state purposes so as to justify the denial of the development permit.” (Maj. opn., ante, at p. 1022, italics added.) Had Lucas never been decided; had the commission not denied plaintiffs all use of their property; had Penn Central’s ad hoc test the slightest relevance to this case, the majority’s conclusion might have some bearing here. But none of these things is true.
The remainder of the majority opinion continues to joust with its own strawman. Yet, to repeat: The test is not “whether the development restrictions imposed on the subject property substantially advanced some legitimate state purposes.” (Maj. opn., ante, at p. 1022.) That formula, lifted from Penn Central, simply is no longer relevant under the circumstances here; indeed, the inquiry is barred by Lucas. And the majority’s conclusion—that though the commission may have been “mistaken given the peculiar facts of this case, its position was not so objectively unreasonable as to give rise to the inference that it was adopting that position solely for purposes of delay' or some other illegitimate reason” (maj. opn., ante, at p. 1025)—is obstinately beside the point.
The majority persistently misstates and mischaracterizes both the issue before us and governing takings law. In the end, however, the majority is
Yes, exactly; and that is this case. As plaintiffs point out, were that not the law, the holding of Lucas would be emasculated. If any “threshold,” “jurisdictional” assertion by a government land use agency that has the effect of barring all economically beneficial use of property can be converted into “the recognition that a judicial determination of the validity of certain preconditions to development is a normal part of the development process” (maj. opn., ante, at p. 1030, italics in original), then, in California, at least for now, Lucas is a dead letter.
Conclusion
When the answer to every question about what the public needs or wants or should have is always “more,” the demand for free public goods is infinite. Against this relentless siphon, the takings clause, and the courts’ ardent defense of it, stands as a last lonely bulwark of property rights. It is, and will continue to be, a difficult rampart to maintain. That difficulty is built right into our constitutional structure. But, in one area at least we have arrived at a clear understanding: When the government denies all economically viable use of property, even temporarily, it may not achieve its ends “by a shorter cut than the constitutional way of paying for the change.” (Penna. Coal Co. v. Mahon, supra,
Baxter, J., concurred.
Had the Federalists lost the argument, our republic might more closely resemble P.J. O’Rourke’s wry description, “The whole idea of our government is this: If enough people get together and act in concert, they can take something and not pay for it.” (O’Rourke, Parliament of Whores (1991) p. 232.)
As Lucas itself and following cases have pointed out, there is one recognized exception even to the court’s categorical takings rule. If the government can demonstrate that controlling principles of “background law”—typically embodied in a state’s nuisance law—do not permit the use at issue, compensation is not required. (See