LANDGATE, INC., et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.
No. S059847
Supreme Court of California
Apr. 30, 1998.
17 Cal. 4th 1006
Jeffer, Mangels, Butler & Marmaro, Benjamin M. Reznik, John M. Bowman, Monica Witt, Reznik & Reznik, Fred N. Gaines, Kevin M. Kemper and L. Elizabeth Strahlstrom for Plaintiffs and Appellants.
Paul B. Campos, James S. Burling and Stephen E. Abraham as Amici Curiae on behalf of Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Jan S. Stevens and Richard M. Frank, Assistant Attorneys General, Peter H. Kaufman and Joseph Barbieri, Deputy Attorneys General, for Defendant and Appellant.
Louise H. Renne, City Attorney (San Francisco), Andrew W. Schwartz, Deputy City Attorney, Johanna H. Wald, John D. Echeverria and Enrico G. Nardone as Amici Curiae on behalf of Defendant and Appellant.
MOSK, J.—In First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 321 [107 S.Ct. 2378, 2389, 96 L.Ed.2d 250],1 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 a taking was effective.” In so holding, the court cautioned that the holding did not extend to “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.” (Ibid.) In the present case, we consider whether a delay in the issuance of a development permit partly owing to the mistaken assertion of jurisdiction by a government agency is a type of “temporary taking” contemplated in First English, or if it is more in the nature of a “normal delay” that does not constitute a taking. The Court of Appeal held that a temporary taking had indeed occurred. We conclude that the present case falls squarely into the category of a normal delay rather than a temporary taking, and therefore reverse the Court of Appeal.
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.,2 to build a large home in the Malibu Hills. Landgate‘s predecessor in interest owned two long, thin parcels or “lots” oriented in a north-south direction. The northern portions were sloped, the southern portions flat. One of the lots contained a single-family home on the southern portion. The coast lay to the south of these lots.
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 (
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
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
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.3 Immediately after the vote, Commissioner Glickfeld commented on the County‘s perceived unwillingness to comply with the Coastal Act: “I really regret the situation that this applicant has been put in because of Los Angeles County‘s refusal to comply with the Coastal Act and I hope that . . . our staff counsel could be directed to communicate that very clearly with Los Angeles County, bring their response back to us and pursue, if necessary, litigation to insist that the County of Los Angeles comply with the law in this matter.” The chief counsel stated that he would prepare a letter to the County.
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.” (
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 Landgate‘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
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 Landgate‘s property valueless. In essence, it held that
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 Landgate‘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) 505 U.S. 1003, 1015 [112 S.Ct. 2886, 2893, 120 L.Ed.2d 798] (Lucas).) The court has stated that the “economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations.” (Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124 [98 S.Ct. 2646, 2659, 57 L.Ed.2d 631].) The court has also stated that “the Fifth Amendment is violated when land-use regulation ‘does not substantially advance legitimate state interests.‘” (Lucas, supra, 505 U.S. at p. 1016 [112 S.Ct. at p. 2894].) The court has furthermore described “at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the
In Agins v. City of Tiburon (1979) 24 Cal.3d 266, 275 [157 Cal.Rptr. 372, 598 P.2d 25], we had held that the sole remedy for government regulation that effects a taking of property is an administrative mandamus overturning the regulation rather than an award of damages. That holding was repudiated by the United States Supreme Court in First English, supra, 482 U.S. 304. In First English, the plaintiff operated a campground on which lay a number of buildings that had been destroyed by flood. An interim Los Angeles County ordinance prohibited construction or reconstruction of any building or structure in an interim flood protection area that included the plaintiff‘s land. The court assumed for purposes of the appeal that the ordinance deprived the plaintiff of all economically beneficial use of its property. It then held that such deprivation constituted a temporary taking of the property for which compensation must be paid. “‘[T]emporary’ takings which deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation.” (Id. at p. 318 [107 S.Ct. at p. 2388].) Thus, 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 a taking was effective.” (Id. at p. 321 [107 S.Ct. at p. 2389].)
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, 482 U.S. at p. 321 [107 S.Ct. at p. 2389].)
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) 473 U.S. 172, 190-191 [105 S.Ct. 3108, 3118-3119, 87 L.Ed.2d 126]; see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 348 [106 S.Ct. 2561, 2565-2566, 91 L.Ed.2d 285].)
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) 33 Cal.App.4th 211, 221-222 [39 Cal.Rptr.2d 266] (Littoral Development Co.); Del Oro Hills v. City of Oceanside (1995) 31 Cal.App.4th 1060, 1080 [37 Cal.Rptr.2d 677]; Jacobi v. City of Miami Beach (Fla.Dist.Ct.App. 1996) 678 So.2d 1365,
In Steinbergh v. City of Cambridge, supra, 604 N.E.2d 1269 (Steinbergh), for example, the Supreme Judicial Court of Massachusetts considered the claim of a landlord suing the city for takings damages stemming from a city regulation that restricted the conversion of rental units into condominiums. The court had, in a previous decision, declared that the regulation exceeded the city‘s statutory authority under the state‘s rent control statute and was therefore invalid. The plaintiff claimed that he suffered damages from the decline in the condominium market during the period of the delay that resulted from the necessity of mounting a legal challenge to the invalid rent regulation. The court first concluded that the regulation in question was neither a physical invasion of property nor a deprivation of all viable use, nor a substantial interference with the property owner‘s distinct investment-based expectations. (See id. at p. 1274.) The court likened the delay experienced in the case to delay “that commonly occurs in seeking regulatory approvals for changes in local ordinances and by-laws, which are government-imposed processes that have not traditionally been viewed as constituting regulatory takings.” (Id. at p. 1275.) “It is, of course, true that in this case the delay was caused, not by the necessity of obtaining mandated governmental approvals, but by the process of presenting a judicial challenge to a municipal regulation. That legal challenge resulted in invalidation of the regulation as beyond the authority of the city to adopt, but not because the municipal regulation was unconstitutional as violating rights to due process or equal protection of the laws. [Citation.] The plaintiffs make no reasoned argument that, simply because a municipal regulation is not authorized by law, there is a compensable temporary taking of property, even though the regulation restricts the sale and reduces the market value of the property until the regulation is successfully challenged in court.” (Ibid.)
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, 604 N.E.2d at p. 1275, quoting Agins v. Tiburon (1980) 447 U.S. 255, 260 [100 S.Ct. 2138, 2141, 65 L.Ed.2d 106].) Although it had found in its previous decision that the condominium conversion regulation was insufficiently connected with rent control, and therefore
Our own Court of Appeal has reached a similar conclusion. (See Del Oro Hills v. City of Oceanside, supra, 31 Cal.App.4th 1060, 1080; Littoral Development Co., supra, 33 Cal.App.4th 211.) In Littoral Development Co., the Court of Appeal considered a regulatory taking claim against the San Francisco Bay Conservation and Development Commission (BCDC). It had decided in a previous decision that BCDC, which was given jurisdiction over development of property adjacent to San Francisco Bay subject to “tidal action” (
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, 447 U.S. at p. 263, fn. 9 [100 S.Ct. at p. 2143], italics added.) Just as an aborted condemnation proceeding that delays development is an incident of ownership and not a taking, so the mistaken assertion of jurisdiction over a development is part of the development approval process, and development delays that result therefrom may be imposed on the developer rather than the general taxpayer without violating the United States Constitution.5
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) 483 U.S. 825, 836-837 [107 S.Ct. 3141, 3148-3149, 97 L.Ed.2d 677] (Nollan); Dolan v. City of Tigard (1994) 512 U.S. 374, 391 [114 S.Ct. 2309, 2319-2320, 129 L.Ed.2d 304] (Dolan).) This type of objective inquiry is consistent with the principle that courts do not delve into the individual purposes of decisionmakers in a quasi-adjudicative proceeding, but rather look to the findings made by the government agency and determine whether these are based on substantial evidence. (City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 779 [122 Cal.Rptr. 543, 537 P.2d 375]; Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515-516 [113 Cal.Rptr. 836, 522 P.2d 12]; see also United States v. Morgan (1941) 313 U.S. 409, 422 [61 S.Ct. 999, 1004-1005, 85 L.Ed. 1429].) Thus, we must determine not whether a sinister purpose lurked behind the Commission‘s decision, but rather whether the development restrictions imposed on the subject property substantially advanced some legitimate state purposes so as to justify the denial of the development permit.
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, 483 U.S. at p. 841 [107 S.Ct. at pp. 3150-3151]; Dolan, supra, 512 U.S. at pp. 388-391 [114 S.Ct. at pp. 2318-2320]) or pay development fees imposed on a property owner on an individual and discretionary basis (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 876 [50 Cal.Rptr.2d 242, 911 P.2d
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, 12 Cal.4th at p. 886 [promotion of scenic and aesthetic objectives within the scope of the police power]) and there is substantial evidence in the record in support of the reasonableness of the Commission‘s position. Indeed, Landgate does not challenge the conditions ultimately imposed by the Commission requiring the reduction of building height and total amount of grading.
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, 482 U.S. at p. 321 [107 S.Ct. at pp. 2389-2390].)
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.7 Similarly, Landgate contends in effect that its failure to make progress toward developing its property between February 1991 and February 1993 was due not to an interim uncertainty created by the jurisdictional dispute with the Commission, but to a decision
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 [112 S.Ct. at p. 2889].) The property owner bears the burden of showing that the government action in question denied it economically beneficial use of its land. (Id. at p. 1016, fn. 6 [112 S.Ct. at pp. 2893-2894].)8
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, 474 U.S. at p. 126 [106 S.Ct. at p. 459].) Part of that regulatory process is the imposition of certain procedural conditions and substantive requirements on development. These conditions can include such matters as the filing of a proper subdivision map (
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
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.9
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 development. 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, 482 U.S. at p. 321 [107 S.Ct. at p. 2389].) Nothing in First English, however, is inconsistent with the recognition that a judicial determination of the validity of certain preconditions to development is a normal part of the development process, and the fact that a developer must resort to such a determination does not constitute a per se temporary taking.
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) 7 Cal.4th 725 [29 Cal.Rptr.2d 804, 872 P.2d 143] [county misconstrues its authority to merge parcels of land under
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, 447 U.S. at p. 263, fn. 9 [100 S.Ct. at p. 2143].) Although Landgate was in the unfortunate position of suffering from a delay not of its own making, the same can be said of any governmental mistake or, for that matter, any of a number of possible bottlenecks in the development process.
III
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.
CHIN, J., Dissenting.—The takings clause of the federal Constitution guarantees property owners “just compensation” when their property is “taken for public use.” (
First English involved a Los Angeles County ordinance that the plaintiff alleged prohibited all use of its property. (First English, supra, 482 U.S. at p. 308 [107 S.Ct. at p. 2382].) The plaintiff asserted that the ordinance constituted a taking of its property for public use, and it sought just compensation. (Ibid.) The trial court and California Court of Appeal ruled that plaintiff was not entitled to compensation unless the county opted to retain the ordinance following a judicial determination that the ordinance constituted a taking. (Id. at pp. 308-309 [107 S.Ct. at pp. 2382-2383].) In other words, these courts held that no taking could occur during the period of litigation over the validity of the ordinance. The United States Supreme Court disagreed, holding that, even if the county withdrew the ordinance as a result of the litigation, it still owed compensation for the temporary period the ordinance was in effect. (Id. at p. 322 [107 S.Ct. at pp. 2389-2390].)
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, 482 U.S. at p. 321 [107 S.Ct. at p. 2389].) The majority argues that this case involves a “normal delay” in the permit approval process, not a temporary taking. (Maj. opn., ante, at pp. 1010, 1030.) I disagree. When a regulatory agency prohibits all use of a particular property, and the property owner is forced to sue the agency to get it to change its position, its stonewalling is not fairly characterized as a “normal delay” in the permit approval process. Here, the Commission‘s denial of Landgate‘s development permit was not, as the majority argues, “conditional,” merely calling for some reasonable act of compliance by Landgate. (Maj. opn., ante, at p. 1028.) Rather, the Commission made clear that it would not approve any development on Landgate‘s lot regardless of the circumstances. Nor did the Commission in this case temporarily delay the permit approval process “pending resolution of a threshold issue.” (Maj. opn., ante, at pp. 1029, 1030.) Rather, the Commission flatly denied the permit, and its decision was final in every sense. The Commission was not planning to take any further action. Landgate had to sue the Commission to get relief.
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, 482 U.S. at p. 334 [107 S.Ct. at p. 2396] (dis. opn. of Stevens, J.).) Justice Stevens stated: “The Court‘s analysis . . . appears to erect an artificial distinction between ‘normal delays’ and the delays involved in obtaining a court declaration that the regulation constitutes a taking. [¶] In my opinion, . . . [l]itigation challenging the validity of a land-use restriction gives rise to a delay that is just as ‘normal’
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, 482 U.S. at p. 321 [107 S.Ct. at p. 2389].) The majority would limit this holding to cases involving “the passage and enforcement of a law or regulation that deprives property of all value.” (Maj. opn., ante, at p. 1021, italics added.) I find no basis in First English for this limitation. Here, the policies reflected in the Commission‘s adjudicative decision, like the ordinance at issue in First English, “worked a taking of all use of property,” and nothing “can relieve [the Commission] of the duty to provide compensation for the period during which the taking was effective.” (First English, supra, 482 U.S. at p. 321 [107 S.Ct. at p. 2389].)
Baxter, J., concurred.
BROWN, J., Dissenting.—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) 450 U.S. 621, 636 [101 S.Ct. 1287, 1296, 67 L.Ed.2d 551], charged this court with sacrificing the right to just compensation guaranteed by the Fifth Amendment on an altar “of policy judgments made by the . . . judicial branch[].” (Id. at p. 661 [101 S.Ct. at p. 1309], fn. omitted.) Although the deference commanded by the high court‘s precedents is not always “absolute,” when it has made an attempt to resolve definitively a difficult point of constitutional law that is applicable to the very issue before us, we ought either to respect its judgment or provide a reasoned basis for refusing to do so. To do otherwise, in Charles Fried‘s words, is “judicial impudence.” (Fried, Impudence (1992) Sup. Ct. Rev. 155, 157, 192-193.)
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),1 the drafters of our Constitution went to extraordinary lengths “to control the governed” and to “oblige [the government] to control itself.” (Madison, The Federalist No. 51, supra, at p. 322.) By adopting the Constitution, the people of the United States “manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.” (Fletcher v. Peck (1810) 10 U.S. (6 Cranch) 87, 138 [3 L.Ed. 162, 178].)
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
“[R]ecent 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) 505 U.S. 1003 [112 S.Ct. 2886, 120 L.Ed.2d 798] (Lucas), the United States Supreme Court made a heroic effort to bring a measure of clarity to an analytical framework that has grown doctrinally more difficult as it has become politically more fundamental. After embracing an intractably complex, ad hoc “balancing test” in Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124 [98 S.Ct. 2646, 2659, 57 L.Ed.2d 631] (Penn Central), the court in Lucas enunciated the clear rule which should govern our decision in this case: “In 70-odd years of succeeding ‘regulatory takings’ jurisprudence [i.e., following Penna. Coal Co. v. Mahon (1922) 260 U.S. 393 [43 S.Ct. 158, 67 L.Ed. 322, 28 A.L.R. 1321]], we have generally eschewed any ‘“set formula“’ for determining how far is too far, preferring to ‘engag[e] in . . . ad hoc, factual inquiries.’ [Citations.] We have, however, described at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physical ‘invasion’ of his property. . . . [¶] The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land. [Citations.]” (Lucas, supra, 505 U.S. at p. 1015 [112 S.Ct. at p. 2893], italics added.)
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, 505 U.S. at p. 1015 [112 S.Ct. at p. 2893]) a given restraint.
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) 482 U.S. 304 [107 S.Ct. 2378, 96 L.Ed.2d 250] (First Lutheran), the United States Supreme Court concluded that temporary takings are compensable, repudiating this court‘s contrary holding in Agins v. City of Tiburon (1979) 24 Cal.3d 266 [157 Cal.Rptr. 372, 598 P.2d 25]. The majority dismisses the holding in First Lutheran as “narrow[]“; confined to its facts; requiring the existence of a final administrative decision before the presence of a constitutional violation can be determined; a case which did not hold that the “mere” assertion of regulatory jurisdiction constituted a taking; and so on. (Maj. opn., ante, at pp. 1017-1018.) But even if we accept all of the majority‘s quibbles, both Lucas and First Lutheran indisputably apply here.
Mystifyingly, the majority then instructs us that “[v]irtually 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) 33 Cal.App.4th 211, 221-222 [39 Cal.Rptr.2d 266] [no final decision]; Del Oro Hills v. City of Oceanside (1995) 31 Cal.App.4th 1060, 1065 [37 Cal.Rptr.2d 677] [no final decision]; Jacobi v. City of Miami Beach (Fla.Dist.Ct.App. 1996) 678 So.2d 1365, 1366 [no denial of all economic use]; Cannone v. Noey (Alaska 1994) 867 P.2d 797, 801 [same]; Dumont v. Town of Wolfeboro (1993) 137 N.H. 1 [622 A.2d 1238, 1244] [same]; Tabb Lakes, Ltd. v. U.S., supra, 10 F.3d 796, 798 [no final decision]; Steinbergh v. City of Cambridge (1992) 413 Mass. 736 [604 N.E.2d 1269, 1274] [no denial of all economic use]; Smith v. Town of Wolfeboro (1992) 136 N.H. 337 [615 A.2d 1252, 1257-1258] [same]; 1902 Atlantic Ltd. v. U. S. (1992) 26 Cl.Ct. 573 [pre-Lucas decision applying Penn Central analysis]; Lujan Home Builders v. Orangetown (1991) 150 Misc.2d 547 [568 N.Y.S.2d 850, 851] [due process rather than takings analysis].)
Lucas itself teaches that its categorical rules do not apply unless the restraint at issue deprives the property owner of all economic use. (Lucas, supra, 505 U.S. at pp. 1015-1019 [112 S.Ct. at pp. 2893-2895].)
Only recently, the court underlined the limited contours of “ripeness” in the takings context. In Suitum v. Tahoe Regional Planning Agency (1997) 520 U.S. 725 [117 S.Ct. 1659, 137 L.Ed.2d 980], it said that cases such as Williamson County, MacDonald, and Hodel “addressed the virtual impossibility of determining what development will be permitted on a particular lot of land when its use is subject to the decision of a regulatory body invested with great discretion, which it has not yet even been asked to exercise. No such question is presented here.” (Id. at p. [117 S.Ct. at p. 1667], italics added; see also Lucas, supra, 505 U.S. at pp. 1011-1012 [112 S.Ct. at pp. 2890-2891].) It is that administrative flexibility that lies behind and justifies the prudential ripeness rule in the takings context. Those concerns simply have no bearing in this case, however, where the commission made clear the extent to which it would permit plaintiffs to develop their lot: not at all. The cases relied on by the majority are thus wide of the only issue presented: Did the commission‘s definitive refusal to permit plaintiffs to make any use of their property—a refusal that continued until, after two years of litigation, plaintiffs obtained judicial relief—“den[y] all economically beneficial or productive use of [their] land.” (Lucas, supra, 505 U.S. at p. 1015 [112 S.Ct. at p. 2893].)
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 corners when they deal with the Government” (Rock Island & c. R. R. v. United States (1920) 254 U.S. 141, 143 [41 S.Ct. 55, 56, 65 L.Ed. 188]) is now reciprocal. Following Lucas, in a limited class of cases, regulators whose final action denies an owner all beneficial economic use of land are on notice that, if their decisions prove wrong when tested in court, the government may face a damages judgment for a temporary taking even if the restraint is later rescinded. In this context at least, it is government that must turn square corners when it attempts to overregulate the use of private property or is in danger of “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (Armstrong v. United States (1960) 364 U.S. 40, 49 [80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554]; Lucas, supra, 505 U.S. at p. 1018 [112 S.Ct. at pp. 2894-2895].)
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) 512 U.S. 374 [114 S.Ct. 2309, 129 L.Ed.2d 304], and Nollan v. California Coastal Comm‘n (1987) 483 U.S. 825 [107 S.Ct. 3141, 97 L.Ed.2d 677], a “nexus” test that is precluded by the categorical rule in Lucas. Indeed, the very nature of Lucas‘s categorical rule appears to bar a court from conducting a case-specific inquiry into those interests that might justify the restraint imposed on the plaintiffs’ use of their property by the commission‘s order. (Lucas, supra, 505 U.S. at p. 1015 [112 S.Ct. at p. 2893] [“We have . . . described . . . two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint.“].)
“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.’ ” (Id. at p. 1018 [112 S.Ct. at pp. 2894-2895].) In short, Justice Scalia concluded, “there are good reasons for our frequently expressed belief that when the owner of real property has been called upon to sacrifice all economically beneficial use in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” (Id. at p. 1019 [112 S.Ct. at p. 2895], fn. omitted, italics in original.)
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, 260 U.S. at p. 416 [43 S.Ct. at p. 160].)
In these limited circumstances, government must turn square corners—except in California.
Baxter, J., concurred.