SAN DIEGO GAS & ELECTRIC CO. v. CITY OF SAN DIEGO ET AL.
No. 79-678
Supreme Court of the United States
Argued December 1, 1980-Decided March 24, 1981
450 U.S. 621
Louis E. Goebel argued the cause for appellant. With him on the briefs were Gordon Pearce and Guenter S. Cohn.
C. Alan Sumption argued the cause for appellees. With him on the brief was John W. Witt.*
*Briefs of amici curiae urging reversal were filed by Gus Bauman for the National Association of Home Builders et al.; by Gideon Kanner, Thomas J. Houser, and Janice S. Amundson for the National Association of Manufacturers of the United States of America; by Richard S. Wasserstrom for the National Forest Products Association; by Ronald A. Zumbrun and Thomas E. Hookano for the San Diego Urban League, Inc.; and by Daniel J. Popeo and Paul D. Kamenar for the Washington Legal Foundation.
Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Elinor Hadley Stillman, J. Vance Hughes, Ann P. Gailis, and E. Robert Wright for the United States; by. J. D. MacFarlane, Attorney General of Colorado, and Marshall D. Brodsky, Assistant Attorney General; Richard S. Gebelein, Attorney General of Delaware, Regina M. Small, State Solicitor, and June D. McArtor, Deputy Attorney General; Wayne Minami, Attorney General of Hawaii; Tyrone C. Fahner, Attorney General of Illinois, and George W. Wolff, Assistant Attorney General; William J. Guste, Jr., Attorney General of Louisiana, and Gary Keyser, Assistant Attorney General; Richard S. Cohen, Attorney General of Maine, and Cabanne Howard, Assistant Attorney General; Stephen H. Sachs, Attorney General of Maryland, and Paul F. Strain and Thomas A. Deming, Deputy Attorneys General; Francis X. Bellotti, Attorney General of Massachu-
JUSTICE BLACKMUN delivered the opinion of the Court.
Appellant San Diego Gas & Electric Company, a California corporation, asks this Court to rule that a State must provide a monetary remedy to a landowner whose property allegedly has been “taken” by a regulatory ordinance claimed to violate the Just Compensation Clause of the Fifth Amendment.1 This question was left open last Term in Agins v. City of Tiburon, 447 U. S. 255, 263 (1980). Because we conclude that we lack jurisdiction in this case, we again must leave the issue undecided.
Appellant owns a 412-acre parcel of land in Sorrento Valley, an area in the northwest part of the city of San Diego, Cal. It assembled and acquired the acreage in 1966, at a cost of about $1,770,000, as a possible site for a nuclear power plant to be constructed in the 1980‘s. Approximately 214 acres of the parcel lie within or near an estuary known as the Los Penasquitos Lagoon.2 These acres are low-lying land which serves as a drainage basin for three river systems. About a third of the land is subject to tidal action from the nearby Pacific Ocean. The 214 acres are unimproved, except for sewer and utility lines.3
When appellant acquired the 214 acres, most of the land was zoned either for industrial use or in an agricultural “holding” category.4 The city‘s master plan, adopted in 1967, designated nearly all the area for industrial use.
Several events that occurred in 1973 gave rise to this litigation. First, the San Diego City Council rezoned parts of the property. It changed 39 acres from industrial to agricultural, and increased the minimum lot size in some of the agricultural areas from 1 acre to 10 acres. The Council
Second, the city, pursuant to
Third, the City Council proposed a bond issue in order to obtain funds to acquire open-space lands. The Council identified appellant‘s land as among those properties to be acquired with the proceeds of the bond issue. The proposition, however, failed to win the voters’ approval. The open-space plan has remained in effect, but the city has made no attempt to acquire appellant‘s property.
On August 15, 1974, appellant instituted this action in the Superior Court for the County of San Diego against the city and a number of its officials. It alleged that the city had
Appellant sought damages of $6,150,000 in inverse condemnation, as well as mandamus and declaratory relief. Prior to trial, the court dismissed the mandamus claim, holding that “mandamus is not the proper remedy to challenge the validity of a legislative act.“, Clerk‘s Tr. 42. After a nonjury trial on the issue of liability, the court granted judgment for appellant, finding that:
“29. [Due to the] continuing course of conduct of the defendant City culminating in June of 1973, and, in particular, the designation of substantially all of the subject property as open space . . . , plaintiff has been deprived of all practical,, beneficial or economic use of the property designated as open space, and has further suffered severance damage with respect to the balance of the subject property.
“30. No development could proceed on the property designated as open space unless it was consistent with open space. In light of the particular characteristics of the said property, there exists no practical, beneficial or economic use of the said property designated as open space which is consistent with open space.
“31. Since June 19, 1973, the property designated as open space has been devoted to use by the public as open space.
“32. Following the actions of the defendant City in June of 1973, it would have been totally impractical and futile for plaintiff to have applied to defendant City for the approval of any development of the property designated as open space or the remainder of the subject property.
“33. Since the actions of the defendant City in June of 1973, the property designated as open space and the remainder of the larger parcel is unmarketable in that no other person would be willing to purchase the property, and the property has at most a nominal fair market value.” App. 41-42.
The court concluded that these findings established that the city had taken the property and that just compensation was required by the Constitutions of both the United States and California. A subsequent jury trial on the question of damages resulted in a judgment for appellant for over $3 million.
On appeal, the California Court of Appeal, Fourth District, affirmed. App. to Juris. Statement B-1; see 146 Cal. Rptr. 103 (1978). It held that neither a change in zoning nor the adoption of an open-space plan automatically entitled a property owner to compensation for any resulting diminution in the value of the property. In this case, however, the record revealed that the city followed the policy of enacting and enforcing zoning ordinances that were consistent with its
The Supreme Court of California, however, on July 13, 1978, granted the city‘s petition for a hearing. This action automatically vacated the Court of Appeal‘s decision, depriving it of all effect. Knouse v. Nimocks, 8 Cal. 2d 482, 483-484, 66 P. 2d 438 (1937). See also
When the present case was retransferred, the Court of Appeal, in an unpublished opinion, reversed the judgment of the Superior Court. App. 63. It relied upon the California decision in Agins and held that appellant could not recover compensation through inverse condemnation. It, however,
“[Appellant] complains it has been denied all use of its land which is zoned for agriculture and manufacturing but lies within the open space area of the general plan. It has not made application to use or improve the property nor has it asked [the] City what development might be permitted. Even assuming no use is acceptable to the City, [appellant‘s] complaint deals with the alleged overzealous use of the police power by [the] City. Its remedy is mandamus or declaratory relief, not inverse condemnation. [Appellant] did in its complaint seek these remedies asserting that [the] City had arbitrarily exercised its police power by enacting an unconstitutional zoning law and general plan element or by applying the zoning and general plan unconstitutionally. However, on the present record these are disputed fact issues not covered by the trial court in its findings and conclusions. They can be dealt with anew should [appellant] elect to retry the case.” App. 66.
The Supreme Court of California denied further review. App. to Juris. Statement I-1. Appellant appealed to this Court, arguing that the Fifth and Fourteenth Amendments require that compensation be paid whenever private property is taken for public use. Appellant takes issue with the California Supreme Court‘s holding in Agins that its remedy is limited to invalidation of the ordinance in a proceeding for mandamus or declaratory relief. We postponed consideration of our jurisdiction until the hearing on the merits. 447 U. S. 919 (1980). We now conclude that the appeal must be dismissed because of the absence of a final judgment.10
In Agins, the California Supreme Court held that mandamus or declaratory relief is available whenever a zoning regulation is claimed to effect an uncompensated taking in violation of the Fifth and Fourteenth Amendments. The Court of Appeal‘s failure, therefore, to award such relief in this case clearly indicates its conclusion that the record does not support appellant‘s claim that an uncompensated taking has occurred.11 Because the court found that the record presented “disputed fact issues not covered by the trial court in its findings and conclusions,” App. 66,12 it held that manda-
III
Ever since this Court‘s decision in Grays Harbor Co. v. Coats-Fordney Co., 243 U. S. 251 (1917), a state court‘s
This case presents the reverse aspect of that situation. The Court of Appeal has decided that monetary compensation is not an appropriate remedy for any taking of appellant‘s property that may have occurred, but it has not decided whether any other remedy is available because it has not decided whether any taking in fact has occurred. Thus, however we might rule with respect to the Court of Appeal‘s decision that appellant is not entitled to a monetary remedy—and we are frank to say that the federal constitutional aspects of that issue are not to be cast aside lightly—further proceedings are necessary to resolve the federal question whether there has been a taking at all. The court‘s decision, therefore, is not final, and we are without jurisdiction to review it.
Because
It is so ordered.
JUSTICE REHNQUIST, concurring.
If I were satisfied that this appeal was from a “final judgment or decree” of the California Court of Appeal, as that term is used in
But “the judicial Power of the United States” which is vested in this Court by Art. III of the Constitution is divided by that article into original jurisdiction and appellate jurisdiction. With respect to appellate jurisdiction, Art. III provides:
“In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
The particular “regulation” of our appellate jurisdiction here relevant is found in
“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
“(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.”
The principal case construing
“The Court has noted that ‘[c]onsiderations of English usage as well as those of judicial policy’ would justify an interpretation of the final-judgment rule to preclude review ‘where anything further remains to be determined by a State court, no matter how dissociated from the only federal issue that has finally been adjudicated by the highest court of the State.’ Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945). But
the Court there observed that the rule had not been administered in such a mechanical fashion and that there were circumstances in which there had been ‘a departure from this requirement of finality for federal appellate jurisdiction.’ Ibid.
“These circumstances were said to be ‘very few,’ ibid.; but as the cases have unfolded, the Court has recurringly encountered situations in which the highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come. There are now at least four categories of such cases in which the Court has treated the decision of the federal issue as a final judgment for the purposes of
28 U. S. C. § 1257 and has taken jurisdiction without awaiting the completion of the additional proceedings anticipated in the lower state courts.” Id., at 477.
In Cox, the Court stated that the fourth category of cases which fell within the ambit of
I am not sure under how many of the four exceptions of
Under these circumstances, it seems to me to be entirely in accord with the language of
JUSTICE BRENNAN, with whom JUSTICE STEWART, JUSTICE MARSHALL, and JUSTICE POWELL join, dissenting.
I
In 1966, appellant assembled a 412-acre parcel of land as a potential site for a nuclear power plant. At that time, approximately 116 acres of the property were zoned for industrial use, with most of the balance zoned in an agricultural holding category. In 1967, appellee city of San Diego adopted its general plan designating most of appellant‘s property for industrial use. In 1973, the city took three critical actions which together form the predicate of the instant litigation: it down-zoned some of appellant‘s property from industrial to agricultural; it incorporated a new open-space element in its plan that designated about 233 acres of appellant‘s land for open-space use;¹ and it prepared a report mapping appellant‘s property for purchase by the city for open-space use, contingent on passage of a bond issue. App. 49.
Appellant filed suit in California Superior Court alleging, inter alia, a “taking” of its property by “inverse condemnation” in violation of the United States and California Consti-
The California Court of Appeal, Fourth District, affirmed, holding that there was “substantial evidence to support the court‘s conclusion [that] there was inverse condemnation.” Id., at 54. The California Supreme Court granted the city‘s petition for a hearing, App. to Juris. Statement D-1, but later transferred the case back to the Court of Appeal for reconsideration in light of Agins v. City of Tiburon, 24 Cal. 3d 266, 598 P. 2d 25 (1979), aff‘d, 447 U. S. 255 (1980). App. to Juris. Statement E-1. Expressly relying on Agins, the
“Unlike the person whose property is taken in eminent domain, the individual who is deprived of his property due to the state‘s exercise of its police power is not entitled to compensation. . . . A local entity‘s arbitrary unconstitutional exercise of the police power which deprives the owner of the beneficial use of his land does not require compensation; rather the party‘s remedy is administrative mandamus. . . .” App. 65-66.
The California Supreme Court denied further review. App. to Juris. Statement I-1.
II
The Court today holds that the judgment below is not “final” within the meaning of
Examination of the Court of Appeal‘s opinion and the California Supreme Court‘s Agins opinion confirms this reading. As indicated above, the Court of Appeal noted that, “[u]nlike the person whose property is taken in eminent domain, the individual who is deprived of his property due
The Court of Appeal‘s analysis was required by the California Supreme Court‘s opinion in Agins v. City of Tiburon, supra. There the court stated:
“Plaintiffs contend that the limitations on the use of their land imposed by the ordinance constitute an unconstitutional ‘taking of [plaintiff‘s] property without payment of just compensation’ for which an action in inverse condemnation will lie. Inherent in the contention is the argument that a local entity‘s exercise of its police power which, in a given case, may exceed constitutional limits is equivalent to the lawful taking of property by eminent domain thereby necessitating the payment of compensation. We are unable to accept this argument believing the preferable view to be that, while such governmental action is invalid because of its excess,
A landowner may not “elect to sue in inverse condemnation and thereby transmute an excessive use of the police power
This Court therefore errs, I respectfully submit, when it concludes that the Court of Appeal “has not decided whether any taking in fact has occurred.” Ante, at 633. For whatever the merits of the California courts’ substantive rulings on the federal constitutional issue, see infra, at 646-661, it is clear that the California Supreme Court has held that California courts in a challenge, as here, to a police power regulation, are barred from holding that a
The trial court has held expressly that the “actions of defendant City . . . taken as a whole, constitute a taking of the portion of plaintiff‘s property designated as open space without due process of law and just compensation within the meaning of the California and United States constitutions.”
III
The Just Compensation Clause of the
A
As explained in Part II, supra, the California courts have held that a city‘s exercise of its police power, however arbitrary or excessive, cannot as a matter of federal constitutional law constitute a “taking” within the meaning of the
In Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), the Court analyzed “whether the restrictions imposed by New York City‘s [Landmarks Preservation] law upon appellants’ exploitation of the [Grand Central] Terminal site effect a ‘taking’ of appellants’ property . . . within the meaning of the
The constitutionality of a local ordinance regulating dredging and pit excavating on a property was addressed in Goldblatt v. Town of Hempstead, 369 U. S. 590 (1962). After observing that an otherwise valid zoning ordinance that deprives the owner of the most beneficial use of his property would not be unconstitutional, id., at 592, the Court cautioned: “That is not to say, however, that governmental action in the form of regulation cannot be so onerous as to constitute a taking which constitutionally requires compensation,” id., at 594. On many other occasions, the Court has recognized in passing the vitality of the general principle that a regulation can effect a
The principle applied in all these cases has its source in Justice Holmes’ opinion for the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), in which he stated: “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”14 The determination of a “taking” is “a question of degree—and therefore cannot be disposed of by general propositions.” Id., at 416.15 While ac-
Not only does the holding of the California Court of Appeal contradict precedents of this Court, but it also fails to recognize the essential similarity of regulatory “takings” and other “takings.” The typical “taking” occurs when a government entity formally condemns a landowner‘s property and obtains the fee simple pursuant to its sovereign power of eminent domain. See, e. g., Berman v. Parker, 348 U. S. 26, 33 (1954). However, a “taking” may also occur without a formal condemnation proceeding or transfer of fee simple. This Court long ago recognized that
“[i]t would be a very curious and unsatisfactory result, if in construing [the Just Compensation Clause] . . . it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use.” Pumpelly v. Green Bay Co., 13 Wall. 166, 177-178 (1872) (emphasis in original).
See Chicago, R. I. & P. R. Co. v. United States, 284 U. S. 80, 96 (1931).
In service of this principle, the Court frequently has found “takings” outside the context of formal condemnation pro-
Police power regulations such as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal condemnation or physical invasion of property.18 From the property owner‘s point of view, it may matter little whether his land is condemned or flooded, or whether it is restricted by regulation to use in its natural state, if the effect in both cases is to deprive him of all beneficial use of it. From the government‘s point of view, the benefits flowing to the public from preservation of open space through regulation 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. Appellees implicitly posit the distinction that the government intends to take property through condemnation or physical invasion whereas it does not through police power regulations. See Brief for Appellees 43. But “the
IV
Having determined that property may be “taken for public use” by police power regulation within the meaning of the Just Compensation Clause of the
The language of the
“The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary.
Such a promise was implied because of the duty to pay imposed by the Amendment.” Id., at 16.
See also Griggs v. Allegheny County, 369 U. S. 84, 84-85, 88-90 (1962); United States v. Causby, 328 U. S., at 268.21 Invalidation unaccompanied by payment of damages would hardly compensate the landowner for any economic loss suffered during the time his property was taken.22
Moreover, mere invalidation would fall far short of fulfilling the fundamental purpose of the Just Compensation Clause. That guarantee was designed to bar the government from forcing some individuals to bear burdens which, in all fairness, should be borne by the public as a whole. Armstrong v. United States, 364 U. S. 40, 49 (1960). See Agins v. City of Tiburon, 447 U. S., at 260; Andrus v. Allard, 444 U. S., at 65. When one person is asked to assume more than a fair share of the public burden, the payment of just compensation operates to redistribute that economic cost from the individual to the public at large. See United States v. Willow River Co., 324 U. S. 499, 502 (1945); Monongahela Navigation Co. v. United States, 148 U. S. 312, 325 (1893). Because police power regulations must be substantially related to the advancement of the public health, safety, morals, or general welfare, see Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 395 (1926), it is axiomatic that the public receives a benefit while the offending regulation is in effect.23 If the regulation denies the private property owner the use and enjoyment of his land and is found to effect a “taking,” it is only fair that the public bear the cost of benefits received during the interim period between application of the
The fact that a regulatory “taking” may be temporary, by virtue of the government‘s power to rescind or amend the regulation, does not make it any less of a constitutional “taking.” Nothing in the Just Compensation Clause suggests that “takings” must be permanent and irrevocable. Nor does the temporary reversible quality of a regulatory “taking” render compensation for the time of the “taking” any less obligatory. This Court more than once has recognized that temporary reversible “takings” should be analyzed according to the same constitutional framework applied to permanent irreversible “takings.” For example, in United States v. Causby, supra, at 258-259, the United States had executed a lease to use an airport for a one-year term “ending June 30, 1942, with a provision for renewals until June 30, 1967, or six months after the end of the national emergency, whichever [was] the earlier.” The Court held that the frequent low-level flights of Army and Navy airplanes over respondents’ chicken farm, located near the airport, effected a “taking” of an easement on respondents’ property. 328 U. S., at 266-267. However, because the flights could be discontinued by the Government at any time, the Court remanded the case to the Court of Claims: “Since on this record it is not clear whether the easement taken is a permanent or a temporary one, it would be premature for us to consider whether the amount of the award made by the Court of Claims was proper.” Id., at 268 (emphasis added). In other cases where the Government has taken only temporary use of a building, land, or equipment, the Court has not hesitated to determine the appropriate measure of just compensation. See Kimball Laundry Co. v. United States, 338 U. S. 1, 6 (1949); United States v. Petty Motor Co., 327 U. S. 372, 374-375 (1946); United States v. General Motors Corp., 323 U. S., at 374-375.
But contrary to appellant‘s claim that San Diego must formally condemn its property and pay full fair market value, nothing in the Just Compensation Clause empowers a court to order a government entity to condemn the property and pay its full fair market value, where the “taking” already effected is temporary and reversible and the government wants to halt the “taking.” Just as the government may cancel condemnation proceedings before passage of title, see 6 J. Sackman, Nichols’ Law of Eminent Domain § 24.113, p. 24-21 (rev. 3d ed. 1980), or abandon property it has temporarily occupied or invaded, see United States v. Dow, 357 U. S. 17, 26 (1958), it must have the same power to rescind a regulatory “taking.” As the Court has noted: “[A]n abandonment does not prejudice the property owner. It merely results in an alteration of the property interest taken—from full ownership to one of temporary use and occupation. . . . In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily.” Ibid.; see Danforth v. United States, 308 U. S. 271, 284 (1939).
The constitutional rule I propose requires that, once a court finds that a police power regulation has effected a “taking,” the government entity must pay just compensation for the period commencing on the date the regulation first effected the “taking,” and ending on the date the government entity chooses to rescind or otherwise amend the regulation.24 Ordinary principles determining the proper measure of just compensation, regularly applied in cases of permanent and
It should be noted that the Constitution does not embody any specific procedure or form of remedy that the States must adopt: “The
V
In Agins v. City of Tiburon, 24 Cal. 3d, at 275, 598 P. 2d, at 29, the California Supreme Court was “persuaded by various policy considerations to the view that inverse condemnation is an inappropriate and undesirable remedy in cases in which unconstitutional regulation is alleged.” In particular, the court cited “the need for preserving a degree of freedom in land-use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy,” in reaching its conclusion. Id., at 276, 598 P. 2d, at 31. But
Because I believe that the Just Compensation Clause requires the constitutional rule outlined supra, I would vacate the judgment of the California Court of Appeal, Fourth District, and remand for further proceedings not inconsistent with this opinion.27
Notes
“[N]or shall private property be taken for public use, without just compensation.”
The Fifth Amendment‘s prohibition applies against the States through the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239 (1897); Webb‘s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 160 (1980).
The city‘s plan defined “open space” as “any urban land or water surface that is essentially open or natural in character, and which has appreciable utility for park and recreation purposes, conservation of land, water or other natural resources or historic or scenic purposes.” App. 52, n. 3.The phrase “inverse condemnation” generally describes a cause of action against a government defendant in which a landowner may recover just compensation for a “taking” of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign‘s power of eminent domain have not been instituted by the government entity. Agins v. City of Tiburon, 447 U. S. 255, 258, n. 2 (1980); United States v. Clarke, 445 U. S. 253, 257 (1980). See, e. g.,
“Eminent domain” is the “power of the sovereign to take property for public use without the owner‘s consent.” Id., § 1.11, at 1-7. Formal proceedings initiated by the government are loosely referred to as either “eminent domain” or “condemnation” proceedings. See Agins v. City of Tiburon, supra, at 258, n. 2.
One law review article, cited twice by the California Supreme Court in Agins, typifies this mode of analysis:
“[T]raditionally eminent domain and the police power have been treated as disjunctive. . . . The Constitution requires that just compensation be paid to landowners whose property has been condemned or taken by a government exercising its eminent domain power; if property is taken and no compensation awarded, the landowner is entitled to bring a so-called inverse condemnation action to compel payment. In contrast, under the police power constitutional requirements relate to the reasonableness of the relation between the means used and the ends sought; a landowner affected by an unreasonable regulation is entitled to bring an action challenging its validity.” Note, Eldridge v. City of Palo Alto: Aberration or New Direction in Land Use Law?, 28 Hastings L. J. 1569, 1570 (1977) (footnotes omitted).
This understanding is likewise shared by appellant and amici. See, e. g., Brief for Appellant 17, 31, 36; Brief for National Association of Home Builders and California Building Industry as Amici Curiae 5, 7.“QUESTION: Well, suppose the California Supreme Court or all the courts in California declare the zoning statute unconstitutional as applied to this piece of property, that the City has unconstitutionally interfered with the use of this property.
“MR. SUMPTION: Yes, Your Honor.
“QUESTION: Now, has the California Supreme Court or the Court of Appeal precluded damages in that situation?
“MR. SUMPTION: Under those facts, without any actual use, without the other factors, denial of access or any direct and special interference with the landowner‘s attempt to use the property, I think that‘s a correct assessment, that the California Supreme Court would say, no, your remedy is to set aside the regulations.
“QUESTION: Well, they get set aside but meanwhile the landowner has not been able to use it for the purpose he wanted. The zoning ordinance has effectively precluded his use of the property and the Supreme Court has said so. No damages?
“MR. SUMPTION: No damages, Your Honor.
“QUESTION: You say that‘s police power, not
Fifth Amendment taking?“MR. SUMPTION: In California, that‘s the rule—” Tr. of Oral Arg. 54-55 (emphasis added).
Contrary to the dissent‘s argument, the California Supreme Court‘s Agins decision did not hold that a zoning ordinance never could be a “taking” and thus never could violate the Just Compensation Clause. It simply limited the remedy available for any such violation to nonmonetary relief. Immediately following the passage quoted by the dissent, post, at 640-641, that court stated:
“This conclusion is supported by a leading authority (1 Nichols, Eminent Domain (3d rev. ed. 1978) Nature and Origin of Power, § 1.42 (1), pp. 1-116-1-121), who expresses his view in this manner: ‘Not only is an
actual physical appropriation, under an attempted exercise of the police power, in practical effect an exercise of the power of eminent domain, but if regulative legislation is so unreasonable or arbitrary as virtually to deprive a person of the complete use and enjoyment of his property, it comes within the purview of the law of eminent domain. Such legislation is an invalid exercise of the police power since it is clearly unreasonable and arbitrary. It is invalid as an exercise of the power of eminent domain since no provision is made for compensation.!” 24 Cal. 3d, at 272, 598 P. 2d, at 28. (Emphasis added by the California court.)See also id., at 273-274, 598 P. 2d, at 29:
“While acknowledging the power of government to preserve and improve the quality of life for its citizens through the regulation of the use of private land, we cannot countenance the service of this legitimate need through the uncompensated destruction of private property rights.”
And see id., at 276, 598 P. 2d, at 30:
“Determining that a particular land-use control requires compensation is an appropriate function of the judiciary. . . . But it seems a usurpation of legislative power for a court to force compensation, ” quoting Note, Inverse Condemnation: Its Availability in Challenging the Validity of a Zoning Ordinance, 26 Stan. L. Rev. 1439, 1451 (1974).
When Agins was appealed here, we unanimously agreed that “[t]he State Supreme Court determined that the appellants could not recover damages for inverse condemnation even if the zoning ordinances constituted a taking. The court stated that only mandamus and declaratory judgment are remedies available to such a landowner.” 447 U. S., at 263. We believe, therefore, that it is the dissent that “fundamentally mischaracterizes,” post, at 637, the California ruling.
The Court of Appeal‘s first opinion unequivocally affirmed the Superior Court‘s finding of a “taking” on the facts of this case. App. 49-50, 60. It is no doubt true that the first opinion was deprived of all legal effect under California law once the California Supreme Court granted the city‘s petition for a hearing. Knouse v. Nimocks, 8 Cal. 2d 482, 483-484, 66 P. 2d 438, 438 (1937). Nevertheless, under this Court‘s view that the second Court of Appeal‘s opinion left open the “taking” question, this Court must admit, as it does, that the second opinion is inconsistent with the finding of a “taking” in the first. Ante, at 631, n. 11. Under my reading, the second is easily reconcilable with the first: because the Court of Appeal was obligated by the terms of the California Supreme Court‘s transfer order to hold that no regulatory action could effect a “taking,” it was forced in its second opinion to abandon its original agreement with the Superior Court‘s finding of a “taking.”Then, he assumes that I agree with the Court that further proceedings will occur on remand to the Superior Court, and concludes that this appeal is therefore not final within the literal language of“I am not sure under how many of the four exceptions of Cox JUSTICE BRENNAN may view this case as falling, but it seems to me that this case illustrates the problems which arise from a less than literal reading of the language ‘final judgment or decree.‘” Ante, at 635-636.
We recognize that this is inconsistent with the Court of Appeal‘s first ruling in this case, but, as has been noted, that decision was deprived of all effect by the Supreme Court‘s order granting a hearing.
The dissent‘s statement that the Court of Appeal “concluded as a matter of law that no Fifth Amendment ‘taking’ had occurred,” post, at 645, is premised upon its misreading of the Agins opinion. See n. 8, supra. The Court of Appeal simply refused to award appellant the only remedy held to be available for a “taking” because there were disputed factual issues to be resolved.
This Court failed to reach this question in last Term‘s Agins v. City of Tiburon. In that case, as an alternative holding, the California Supreme Court had found on the facts of the case that the Tiburon ordinance “did not unconstitutionally interfere with plaintiffs’ entire use of the land or impermissibly decrease its value.” 24 Cal. 3d, at 277, 598 P. 2d, at 31. This Court affirmed on that ground, thereby not reaching the broader ground that constitutes the sole basis for the opinion of the Court of Appeal in the instant case. 447 U. S., at 262-263.Although its initial opinion affirmed the trial court‘s finding that any application by appellant to develop the property would have been rejected, it is clear that the Court of Appeal reconsidered that finding in the light of Agins. In Agins, the California Supreme Court held that landowners who had not “made application to use or improve their property” following the passage of a zoning ordinance and had not “sought or received any definitive statement as to how many dwelling units they could build on their land,” 24 Cal. 3d, at 271, 598 P. 2d, at 27, had not shown that the ordinance took their property without just compensation, since it permitted up to five residences to be built on the plaintiffs’ property. We agreed that no violation of the Fifth and Fourteenth Amendments had been shown, since the landowners were “free to pursue their reasonable investment expectations by submitting a development plan to local officials.” 447 U. S., at 262.
In this case, city witnesses testified that some development of appellant‘s property would be consistent with the open-space plan. App. 134-
135, 140, 149-150. Indeed, the plan holds out the possibility that a nuclear power plant could be built on the site, see n. 5, supra, and the witnesses testified that other forms of industrial development might be permitted as well. App. 140, 149-150. The trial court‘s opinion does not explain why it concluded in light of this evidence that any attempt to obtain the city‘s permission for development of the property would be futile.When the Court of Appeal reconsidered its decision in light of Agins, we believe that its reference to “disputed fact issues not covered by the trial court in its findings,” App. 66, referred to this controversy. Its opinion states that damages would be unavailable “[e]ven assuming no use is acceptable to the City.” Ibid. The Court of Appeal declined to award mandamus or declaratory relief because it could not make this “assumption” in light of the factual disputes.
The question presented in appellant‘s jurisdictional statement states in pertinent part: “Can a state court with impunity deny an aggrieved property owner its constitutionally mandated remedy of just compensation when a local government entity has (a) imposed arbitrary, excessive, and unconstitutional land use regulations; (b) commenced, but later abandoned direct acquisitive efforts under its power of eminent domain when its public purpose was satisfied by the restraints of the purported regulations; and (c) through a continuing course of conduct acted so as to deprive the property owner of all practical, beneficial or economic use of its property; and the property owner has so established as a matter of fact after full trial of the issues?” Juris. Statement 4-5.Appellant‘s counsel shares this view:
“QUESTION: Mr. Goebel, your second and third cause of action in your complaint were petitions for mandate and the relief prayed in paragraph 3 of your complaint was that the Court order the City of San Diego to set aside the rezoning and to set aside the adoption of the open space element of its general plan. As I understand it, on remand, the trial court may grant that relief, theoretically.
“MR. GOEBEL: That‘s correct, Your Honor.” Tr. of Oral Arg. 18.
The Court of Appeal below rendered its decision almost one year before this Court‘s decision in Agins v. City of Tiburon, supra.“But whether the theory . . . be that there was a taking under the Fifth Amendment, and that therefore the Tucker Act may be invoked because it is a claim founded upon the Constitution, or that there was an implied promise by the Government to pay for it, is immaterial. In either event, the claim traces back to the prohibition of the Fifth Amendment, ‘nor shall private property be taken for public use, without just compensation.’ The Constitution is ‘intended to preserve practical and substantial rights, not to maintain theories.‘” United States v. Dickinson, 331 U. S. 745, 748 (1947).
“IF ALL ELSE FAILS, MERELY AMEND THE REGULATION AND START OVER AGAIN.
“If legal preventive maintenance does not work, and you still receive a claim attacking the land use regulation, or if you try the case and lose, don‘t worry about it. All is not lost. One of the extra ‘goodies’ contained in the recent [California] Supreme Court case of Selby v. City of San Buenaventura, 10 C. 3d 110, appears to allow the City to change the
regulation in question, even after trial and judgment, make it more reasonable, more restrictive, or whatever, and everybody starts over again. “See how easy it is to be a City Attorney. Sometimes you can lose the battle and still win the war. Good luck.” Longtin, Avoiding and Defending Constitutional Attacks on Land Use Regulations (Including Inverse Condemnation), in 38B NIMLO Municipal Law Review 192-193 (1975) (emphasis in original).