# Amicus Brief — Agins v. City of Tiburon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1980
- **Citation:** 447 U.S. 255

## Text

Supreme Court, U.S.

i TLE B
Re oes APR 3 1980

Iu the Supreme Court of the United”

OCTOBER TERM, 1979

FOR ARGUMENT

DONALD W. AGINS AND BONNIE G. AGINS,
APPELLANTS

Vv.

CITY OF TIBURON

ON APPEAL FROM THE SUPREME COURT OF CALIFORNIA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

WADE H. McCCREE, JR.
Solicitor General

JAMES W. MOORMAN
Assistant Attorney General

LOUIS F. CLAIBORNE
Deputy Solicitor General

ELINOR HADLEY STILLMAN
Assistant to the Solicitor General

JACQUES B. GELIN
RICHARD JAMES LAZARUS
Attorneys
Department of Justice
Washington, D.C. 20530

Page
Questions presented ..........................c.e-s--sese0e- 1
Interest of the United States ~................-.......--- 2
a sethinescniasinbane 3
REY OE RUNING oon. 5 ons snn scence ccecsnenencene 7
did codec smmacabspedasinieniedadienedivens 12

I. A zoning ordinance that is designed in
part to preserve open space from en-
croaching development and that restricts
development of land to the construction
of no more than one single-family dwell-
ing per acre does not constitute a taking
of property without just compensation
in violation of the Fifth and Fourteenth
cs cinankakianians 12

A. A zoning ordinance having a sub-
stantial relation to the public wel-
fare does not take a landowner’s
property in violation of the Fifth
and Fourteenth Amendments where
a reasonable beneficial use of the
property is permitted —................. 12

B. The City’s ordinance does not effect
a taking of appellants’ property.... 19

1. Only facial validity of the ordi-
nance is at issue ............-..........- 19

2. The ordinance promotes the
public interest in sound land
enone 21

II
Argument—Continued

3. The ordinance does nc* leave
appellants without a reasonable
beneficial use of their land ......

II. The Fifth and Fourteenth Amendments
do not require that a state court afford
a remedy in damages if plaintiffs allege
and prove that a zoning ordinance con-
stitutes an unconstitutional taking of
their property, where the remedies of
declaratory relief and mandamus are
I i i gssec uh csercenouninciniocsamishaaseaiboans

I a a ae

B. A zoning ordinance deemed invalid
as a taking of property without
compensation is not the equivalent
of an exercise of the power of emi-
I I ocincncccaccecnlenttvetna iteticaie

C. The equitable remedies available in
the California courts are adequate
remedies for claims that a zoning
ordinance deprives a landowner of
substantially all beneficial use of
Be I: cciescrcnenoupilamessioesienniendns

D. Public policy considerations sup-
port the California Supreme
Court’s determination of the rem-
BN ID nicicicadcducassenctacareadeinshauces

i EN

Page

25

28
28

32

38

42
47

Ili

CITATIONS
Cases: Page
Abood v. Detroit Board of Education, 431

TS the Ts ccsiisiccniccnesteanipeeeene 39
Andrus v. Allard, No. 78-740 (Nov. 27,

Lt | RENE ONAN FF rate mee Noe URC 17
Armstrong v. United States, 364 U.S.

GD ovniicscsinileingstclteigiate edie a 15
Bivens v. Six Unknown Federal Narcotics

Agente, 406 UD: Tie cocci 40
Block v. Hirsh, 256 U.S. 188 ...................-- 16, 35
Brinkerhoff-Faris Trust & Savings Co.

\. oe, SS) Ue Oe oie 39
Brown v. Pitchess, 18 Cal. 3d 518, 531

P.2d 772, 119 Cal. Rptr. 204 ............... 31
Dale v. City of Mountain View, 55 Cal.

App. 3d 101, 127 Cal. Rptr. 520 .......... 25
Davis v. Passman, 442 U.S. 228 ....0.....0..... 34, 40
Dugan v. Rank, 372 U.S. 609 .....0222222200.2... 34, 36
Eastport Steamship Corp. v. United

States, G72 FE WOOD cece 42
Euclid v. Ambler Realty Co., 272 U.S.

UND. ncsec enema eta 7, 8, 12, 13, 15, 18, 23
Exxon Corp. v. Governor of Maryland, 437

Le Db | Gemenremenncemae mar em reCMR a ep ryt ws ort 15
Ferri v. Ackerman, No. 78-5981 (Dec. 4,

BOT sccinshitcunlesseiaseasgieaeiieasaa da esencnae 32
Fresno v. California, 372 U.S. 627 .......... 36
Goldblatt v. Town of Hempstead, 369 U.S.

GD scicensninibnistabciecsccelatile alii ied teas aa 24
Gorieb v. Fox, 274 U.S. 608 002. 23
Graham v. City of Biggs, 96 Cal. App. 3d

268, 167 Cal. Be. Fb ice. 31

Hadacheck v. Sebastian, 239 U.S. 394 ...... 18

IV
Cases—Continued

Hecton v. People ex rel. Department of
Transportation, 58 Cal. App. 3d 658,
150 Coal, Tes BD accvaniecdesnstitneens

HFH, Ltd. v. Superior Court of Los Ange-
les County, 15 Cal. 3d 508, 542 P.2d
237, 125 Cal. Rptr. 365, cert. denied,
6 US. Ge coc eee

Hooe v. United States, 218 U.S. 322........

Hurley v. Kincaid, 285 U.S. 95 ................

Igna v. City of Baldwin Park, 9 Cal. App.
3d 909, 88 Cal. Rptr. 581 ..............00......

Iowa-Des Moines National Bank v. Ben-
nett, BOG. SB, Be siccecn een

Jacobs v. United States, 290 U.S. 18 ........

Jacobson v. Tahoe Regional Planning
Agency, 474 F. Supp. 901 .................. 32

Kaiser Aetna v. United States, No. 78-
190 (Dee. & BRS e osc lee

Mapp v. Ohio, 367 U.S. 648 -...W.......2..-.....

Martinez v. California, No. 78-1268 (Jan.
BB, SOD ao caisscsiccsicpsanvnacenheipiencmmaaaaemaaes

Mellon v. McCafferty, 239 U.S. 134 -.........

Miller v. Schoene, 276 U.S. 272 -...............

Miranda v. Arizona, 384 U.S. 486 ..........

Monell v. New York City Department of
Social Services, 486 U.S. 658 -..............

Mosca v. United States, 417 F.2d 1382......

Murdock v. City of Memphis, 87 U.S. (20
WR.) I ccccssssccccpcnnboneiemnadamuneiae

Nebbia v. New York, 291 U.S. 502 ..........

Owen v. City of Independence, 589 F.2d
335, cert. granted, No. 78-1779 (Oct. 1,
1979) (argued Jan. 8, 1980) —...0.00022....

Page

25

30, 31

36, 37

, 43, 44

Cases—Continued Page

Pan Pacific Properties Inc. v. County of
Santa Cruz, 81 Cal. App. 3d 244, 146

Ss a MI iad ccicdSentcicainctapiesctectantinen 20
Penn Central Transportation Co. v. New

York City, 438 U.S. 104 ........................ passim
Pennsylvania Coal Co. v. Mahon, 260 U.S.

Beas oent eh Somkeehs bie <P OVA A AN SDR ea 27
Phyle v. Duffy, 384 U.S. 4381 -...............------ 32, 40
Pierce Oil Corp. v. City of Hope, 248 U.S.

OO eka atch hanna nenonavniallenbienizanns 25
Poindexter v. Greenhow [The Virginia

Coupon Cases], 114 U.S. 270 ..............-- 39
Portsmouth Co. v. United States, 260 U.S.

RTO SO a a ee ete. ee eee 15
Regional Rail Reorganization Act Cases,

BAD Ue TD wicantesensies sii deasadiaidiadcoastadiaMindniade 37
Rossiter v. Benoit, 88 Cal. App. 3d 706,

sO hinieeeernseieeeertesenicrins 31

Sala v. County of Suffotk, 604 F.2d 207,
petition for cert. pending, No. 79-620.. 44

United States v. Causby, 328 U.S. 256...... 14
United States v. Central Eureka Mining

eis Se III: RI secokdcnaccceisiaboriencincenescteiiinnees 19
United States v. Clarke, No. 78-1693

Ds, Ci SIRE pniststniennyicteinnisccanenmnionniel 33, 34, 41
United States v. Dickinson, 331 U.S. 745.. 33
United States v. Dow, 357 U.S. 17 ........... 33, 34
United States v. General Motors Corp.,

Fe I a icetenrceintcchencera avgcnenithoneinhale 17
United States v. Gerlach Live Stock Co.,

I Ie MIO daca bdnipdtdenciicndscancsideneeiinscaiense 36
United States v. Willow River Power Co.,

Br Ne cates ich eae ostieerecatnrenis 17

VI
Cases—Continued Page
Village of Belle Terre v. Boraas, 416 U.S.
ee Se ere a CNR OT TET 23
Ward v. Board of County Comm’rs, 253
MI esol es a Gt eneiaaetadaianidains 39
Woods v. Nierstheimer, 328 U.S. 211 ........ 40
Constitution and statutes:
United States Constitution:
Fifth Amendment ............ 1, 2, 5, 9, 12, 28, 34

Fourteenth Amendment ...... 1, 2, 5, 12, 28, 34

Airport and Airway Development Act of
1970, 49 U.S.C. 1701 et seq. -...............--

Clean Water Act, 33 U.S.C. (and Supp.
I) 1251 et seq.:

33 U.S.C. (Supp. I) 1251(b) ~...........
33 U.S.C. (Supp. I) 1251(g) ............
Rh SRO RRCRERIE eclpre a

Coastal Zone Management Act of 1972,
BG CEA. BOGE OG DO nis ccssiicnincesesoncens

Section 302(c), 16 U.S.C. 1451(c) ....
Section 302(h), 16 U.S.C. 1451 (h)....
Section 305, 16 U.S.C. 1454 __......

Demonstration Cities and Metropolitan
Development Act of 1966, 42 U.S.C.
TNE viens ninSaliineonsiiesvelieinbsapddsithwanbipeade

Environmental Quality Improvement Act
of 1970, 42 U.S.C. 4871 ..........................

Housing and Community Development Act
of 1974, 40 U.S.C. 461 _220. ee.

National Environmental Policy Act of
1969, 42 U.S.C. 4881 (8) one eeeeeeeeeeeceee-

Vil

Constitution and statutes—Continued Page
National Flood Insurance Act of 1968, 42

RI I fries sain cea eabihaihehineadichanidanarane 3
National Historic Preservation Act of

pS A. nee 2
Resource Conservation and Recovery Act

of 1976, 42 U.S.C. 6941-6949 __....WW.. 2
Soil Conservation and Domestic Allotment

pe Rk | eae enone 3
OO TR I ererncresenetinareccinnntnecassl 31, 32, 44, 45
Cal. Civ. Proc. Code § 1095 (West Cum.

SE. SINE ciictadaiciiensninatondeaniniqeretinnmninensins 31
Cal. Evid. Code § 452 (West 1966) _....... 25
Cal. Gov’t Code:

§ 818.2 (West 1966) .....................--.- 31
§ 65560 et seg. (West Supp. 1980)... 3
§ 65561(b) (West Supp. 1980) -...... 23
§ 65912 (West Supp. 1980) -............. 38
Miscellaneous:
R. Anderson, American Law of Zoning

RSE ee ee 23
F. Bosselman, D. Callies & J. Banta, The

Taking Issue (1978) -............................ 44
Comment, The Clean Water Act and Re-

lated Developments in the Federal

Water Pollution Control Program Dur-

ing 1977, 2 Harv. Envt’l L. Rev. 103

SINT ‘antiesusisiiisncestanemnildnceinialsiicnbnighepeudbsbnbecesianis 46
Haar, “In Accordance with a Comprehen-

sive Plan,” 68 Harv. L. Rev. 1155

I a 24
Hart, The Relations Between State and

Federal Law, 54 Colum. L. Rev. 489

EARIIIIT » cactiphiieesiciaiateiabinaichieinanaiteniic 43

Viit

Miscellaneous—Continued

Hill, Constitutional Remedies, 69 Colum.
i | eeenamere tomer
Hill, The Bill of Rights and the Super-
visory Power, 69 Colum. L. Rev. 181
III ce acecceesinsonectcabladgunipapnoscobeineeataleosinet
Hohfeld, Fundamexial Legal Conceptions
As Applied in Judicial Reasoning, 26
oi 8 ) en eee
Hohfeld, Some Fundamental Legal Con-
ceptions As Applied in Judicial Reason-
ing, 2B Tale id. 16 (1913) .........,...--
2A Moore’s Federal Practice (2d ed.
STEEL pub saicncebbaiennreateegsntactatbersacipartcate
Note, Eldridge v. City of Palo Alto: Aber-
ration or New Direction in Land Use
Law?, 28 Hastings L.J. 1569 (1977)..
Note, Inverse Condemnation: Its Avail-
ability in Challenging the Validity of a
Zoning Ordinance, 26 Stan. L. Rev.
I I etecieatscecracmmoioeincetnss
Note, State Remedies for Federally-
Created Rights, 47 Minn. L. Rev. 815
I sie cncsierenccteapseekiltaccnnnieladaaliensicsdiibstaings
2.N. Williams, American Planning Law—
Land Use avid the Police Power (1974)...

Page

39

39

16

16

25

44

43, 44

39

23

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-602

DONALD W. AGINS AND BONNIE G. AGINS,
APPELLANTS

Vv.
CITY OF TIBURON

ON APPEAL FROM THE SUPREME COURT OF CALIFORNIA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

QUESTIONS PRESENTED

1. Whether a zoning ordinance restricting develop-
ment of appellants’ property to no more than one
single-faniily dwelling per acre constitutes a taking
of property without just compensation in violation
of the Fifth and Fourteenth Amendments.

2. Whether the Fifth and Fourteenth Amend-
ments require that a state court afford a remedy in
damages if plaintiffs allege and prove that a zoning
ordinance constitutes an unconstitutional taking of
their property, where declaratory relief and man-
damus are available.

(1)

2

INTEREST OF THE UNITED STATES

This case concerns the validity of a municipal zon-
ing ordinance enacted as part of a comprehensive
land use plan to protect a part of the area’s remain-
ing open spaces from the encroachment of dense com-
mercial and residential development. It is challenged
as a taking under the Fifth and Fourteenth Amend-
ments, and appellants seek to compel the payment of
damages in what they style an action for inverse
condemnation.

Should appellants prevail, regulatory measures in
numerous federal programs, including programs de-
pendent on the employment of traditional land use
controls, could be subject to similar takings chal-
lenges. Moreover, in many federal environmental
programs Congress has adopted a policy of encourag-
ing state and local governrients to enact the neces-
sary regulatory programs, including traditional land
use controls—in some cases expressly placing the re-
sponsibility for such enactments on these govern-
ments. See, e.g., provisions of the Airport and Air-
way Development Act of 1970, 49 U.S.C. 1701 et seq.;
the Clean Water Act, 33 U.S.C. 1288, and 33 U.S.C.
(Supp. I) 1251(b), 1251(g); the Coastal Zone Man-
agement Act of 1972, 16 U.S.C. 1451(h); the Envi-
ronmental Quality Improvement Act of 1970, 42
U.S.C. 4371; National Environmental Policy Act of
1969, 42 U.S.C. 4831(a) ; the National Historic Pres-
ervation Act of 1966, 16 U.S.C. 470; and the Resource
Conservation and Recovery Act of 1976, 42 U.S.C.
6941-6949. In other areas, Congress offers financial

3

assistance and other encouragement to promote local
land use planning. See, e.g., provisions of the Demon-
tration Cities and Metropolitan Development Act of
1966, 42 U.S.C. 3334; the National Flood Insurance
Act of 1968, 42 U.S.C. 4102; the Housing and Com-
munity Development Act of 1974, 40 U.S.C. 461; and
the Soil Conservation and Domestic Allotment Act,
16 U.S.C. 590ce.

A holding by this Court that the ordinance at issue
in this case is constitutionally infirm as applied to
appellants might put in doubt the constitutionality of
some of these federal and federally assisted programs;
and a holding that the Constitution requires that a
remedy in damages be made available to any plain-
tiff who proves that a land use law is invalid under
the Takings Clause as applied to his property could
exert a chilling effect on the good faith exercise of
the police power, impede the public budgeting process,
and threaten the solvency of many local governments
that attempt to carry out land use — of federal
environmental programs.

STATEMENT

1. Appellants own five acres of unimproved land
in the City of Tiburon, Marin County, California
(A. 4). On June 28, 1978, in compliance with a
state law requiring cities and counties to include
“open space elements” in their general land use
plans (Cal. Gov’t Code § 65560 et seg. (West Supp.
1980) ), the City enacted Ordinance No. 124 N.S.,
designating appellants’ land as coming within an
“RPD-1” zone, meaning that the land is restricted

4

to certain authorized uses, namely “(1) [o]ne-family
dwellings[,] (2) [o]pen space uses [, and] (3)
[a]ecessory buildings and accessory uses” (A. 5; J.S.
App. 3, 30-32, 45-46).' Appellants’ parcel was among
more than 250 acres in the City (some 15% of its
land area) designated RPD-1 by the ordinance (Tibu-
ron zoning map, reprinted at C. Tr. 21M).? Under
the ordinance, appellants are entitled to use their five
acres of land for one single-family dwelling, and, on
application, the City may approve construction of
up to four additional single-family dwellings, for a
total of five on five acres (J.S. App. 3, 31-36).°
On October 15, 1973, appellants filed a claim with
the City demanding $2 million for the injury allegedly
done to their property by passage of the ordinance
(J.S. App. 3-4, 7, 21-23). The City rejected the claim
(id. at 24). On December 4, 1973, six months after

1 Ordinance 124 N.S. specifies the areas to be placed into
particular zoning categories; the specification of uses per-
mitted for land zoned as RPD-1 appears in Ordinance No.
123 N.S., enacted the same day (J.S. App. 20-40).

2“C, Tr.” refers to the Clerk’s Transcript of the record on
appeal from the Superior Court of California, County of
Marin.

3It appears that, when appellants bought their land in
1968, the then-applicable zoning ordinance similarly allowed
them to build only five homes on the five acres (Appendix C
to the brief filed by the Conservation Foundation, et al. as
amici curiae). Whether appellants are now permitted to
build five dwellings or fewer, depends upon the particular
architectural design contemplated and the results of the re-
quired environmental reviews. The ordinance provides stand-
ards that the City must consider to determine the appropriate
maximum allowable density (J.S. App. 3, 32-36). Appellants
have not applied to the City for a permit (id. at 3).

5

the challenged ordinance was enacted, the City filed
a complaint in eminent domain to acquire appellants’
property, but later abandoned the proceedings (J.S.
App. 4; A. 9-10).

2. On June 16, 1975, appellants filed suit against
the City in the Superior Court of California, County
of Marin, alleging, in a first cause of action, a claim
in inverse condemnation for two million dollars in
damages, and requesting, in a second cause of action,
declaratory relief, asserting that Ordinance No. 124
N.S. constituted a taking in violation of the Fifth
and Fourteenth Amendments (A. 3-15). Appellants’
complaint alleged generally that the ordinance “com-
pletely destroyed the value of [their] property for
any purpose or use whatsoever” (A. 7). They also
alleged, however, that the general area in which their
property was situated is “the most desirable place to
live in the State of California and [has] the highest
land value per acre for suburban areas in the State
of California” (A. 3). They further alleged that their
particular parcel is ideal for residential development,
having “magnificent views of the San Francisco Bay
and the scenic surrounding areas” and “the highest
market values of all lands within the city” (A. 4).

The City answered with a general demurrer to
both claims (A. 25). The trial court sustained the
demurrer as to the inverse condemnation claim with-
out leave to amend and it sustained the demurrer
to the claim for declaratory relief with leave to amend
within 10 days (A. 26). Appellants declined to amend
and appealed to the Court of Appeal for the First
Appellate District, which affirmed the trial court’s

6

dismissal of the claim for declaratory relief and re-
versed as to dismissal of the inverse condemnation
claim (App. Br. 8).

3. On the City’s appeal to the California Supreme
Court, that court, one justice dissenting, vacated the
decision of the Court of Appeal and affirmed the
trial court’s dismissal of both claims for relief (J.S.
App. 1-24).

The court concluded that when a public agency has
adopted a zoning ordinance that substantially limits
use of landowners’ property, the landowners may not
recover damages on the theory of inverse condemna-
tion; rather, they may challenge the constitutionality
of the ordinance either through an action for declara-
tory relief or mandamus. The court reasoned that
an invalid exercise of the police power could not be
converted at the landowner’s option into a valid
exercise of the power of eminent domain, giving rise
to a right to payment of just compensation (id. at
5). Recognizing that an exercise of the police power
to promote the public health, safety, or welfare may
amount to a “taking” if it would destroy substan-
tially all of a landowner’s use of the land in ques-
tion, the court noted that the customary remedy was
invalidation of the regulation for failure to provide
compensation (id. at 7-8). It further concluded that
if local governments that enacted land use laws de-
termined by a court to have exceeded limits of the
police power in that respect (and thus to constitute
a “taking”) were to be held liable in damages on a
theory of inverse condemnation, this would deter

7

valid land use regulation, out of fear that a court
might hold it to be a taking and require, in effect,
that the government purchase land that it had in-
tended only to regulate (id. at 10-12).

Second, the court held that, in any event, because
the zoning restriction allowed appellants to build up
to five dwellings on their property, its effect, as a
matter of law, was not to deprive them of substan-
tially all reasonable use of their land, and it was not,
therefore, unconstitutional (J.S. App. 12-13). Fi-
nally, the court rejected appellants’ assertion that the
City’s “precondemnation activities’—the authoriza-
tion of studies recommending acquisition of appel-
lants’ land and the filing and subsequent abandon-
ment of an eminent domain proceeding—‘“were so
unreasonable as to provide a separate basis for an
action in inverse condemnation” (id. at 18-14).

The dissenting justice asserted that appellants had
alleged sufficient facts to make out their takings
claim, that a damage remedy was constitutionally re-
quired where such claims were proven, and that with-
out such a remedy available, government agencies
would be encouraged to enact land use plans similar
to the one at issue (id. at 16-24).

SUMMARY OF ARGUMENT

I,

Under principles set forth in this Court’s decisions
in Euclid v. Ambler Realty Co., 272 U.S. 365 (1926),
and Penn Central Transportation Co. v. New York

8

City, 4838 U.S. 104 (1978), a land use regulation such
as a zoning ordinance is not deemed a taking without
just compensation under the Fifth Amendment where
the regulation is not “clearly arbitrary and unreason-
able, having no substantial relation to the public
health, safety, morals, or general welfare” (Euclid v.
Ambler Realty Co., supra, 272 U.S. at 395) and does
not deprive the owner of every reasonable beneficial
use of his property. Thus, the fact that such a regu-
lation may produce a severe diminution in the value
of property, or deprive the owner of certain profitable
uses of that property, does not prove it to be an un-
constitutional taking.

Under these principles, the particular factual alle-
gations of the complaint in this case do not establish
the unconstitutionality of the City’s ordinance. Ap-
pellants do not seriously dispute the substantial rela-
tion of the ordinance to the public welfare, 7.¢., the
protection of remaining open space areas in the City
from the encroachment of dense development. Their
conclusory allegation that the ordinance, and the City’s
open space planning activities generally, have left their
parcel without value for any use is contradicted by
the terms of the ordinance, which permit construction
of up to five single-family dwellings on the parcel,
and by particular allegations in the complaint that
the parcel has the highest market value of land in an
area that itself includes the most valuable suburban
land in the State and that the parcel is well suited
to residential development. Accordingly, the Cali-
fornia Supreme Court was correct in finding that the

9

ordinance was not a taking within the meaning of the
Fifth Amendment and in affirming the trial court’s
dismissal of the complaint.

II.

Appellants contend that when a state court deter-
mines that a “oning ordinance has so exceeded the lim-
its of the police power as to constitute an unconstitu-
tional taking of property, the court is not free to
limit the plaintiffs to declaratory relief and mandamus
but must afford plaintiffs the right to recover damages
on a theory of inverse condemnation. Their position
rests on several flawed arguments.

First, they incorrectly argue that a legislature’s
enactment of a law that regulates uses of property in
a manner ultimately deemed by a court to constitute
a taking is the equivalent of an exercise of the power
of eminent domain to acquire property. From this
they conclude that a court may properly compel a
government to purchase property it sought only to
regulate, albeit in a manner deemed unconstitutional
by the court. That proposition is. unsupported by pre-
cedent. Instead, decisions of this Court on which
appellants rely suggest a sensitivity to legislative
choice in considering what remedies to give when a
statute is found to be invalid under the Takings
Clause. A legislature that enacts a zoning ordinance
has made a clear choice: it has in effect decided to
define property rights rather than to acquire them.
If in the present case, contrary to our submission, the
City has misjudged the degree to which it may validly

10

control the density of residential development without
resorting to proceedings in eminent domain, it should
not be found to have impliedly agreed to purchase
property the uses of which it sought only to regulate.

Second, appellants incorrectly suggest that the
remedies of declaratory relief and mandamus are
inadequate as a matter of constitutional law. No
allegations in their complaint support the claim that
such relief would be inadequate. If the ordinance were
struck down, the restrictions which they allege deprive
them of all beneficial use of their property would be
lifted; and mandamus would be available to compel
the issuance of permits and the like were the City to
seek in some way to evade compliance with the de-
cision. In recognitior of principles of federalism,
this Court has indicated that only when relief offered
by a state court for the protection of a federal right
is wholly inadequate should a federal court interfere
with the state court’s remedial discretion. Even in
cases brought in federal court against federal officials,
this Court has not suggested that a remedy in damages
is the sole adequate remedy for a constitutional viola-
tion; and there is no authority for the proposition
that only a damages remedy provides adequate relief
for unconstitutional restrictions on land use imposed
by a zoning ordinance.

Third, appellants suggest that state and local gov-
ernments would enjoy greater flexibility in their policy
choices in land use planning if the inverse condem-
nation remedy were available to developers and others

11

who challenge land use regulations. In fact, just the
opposite is the case. If such an ordinance is invali-
dated in whole or in part, the enacting body is free
to enact an amended ordinance, proceed in eminent
domain (if it possesses such powers), or abandon its
regulation of the land uses concerned. Under appel-
lants’ scheme, a government would be compelled to
purchase the property at issue. Compelled purchase
not only restricts a government’s options in land use
planning, it may create budgetary problems that con-
strain decisions in other areas. And the mere threat
of such a remedy may inhibit local governments from
devising constitutional land use policies, for fear that
a court may disagree with the judgment of corpora-
tion counsel on the constitutional validity of regula-
tion. Such inhibitions may discourage the participa-
tion of state and local governments in federal environ-
mental programs that depend on implementation
through land use controls at the state and local level.

12
ARGUMENT

I. A ZONING ORDINANCE THAT IS DESIGNED IN
PART TO PRESERVE OPEN SPACE FROM EN-
CROACHING DEVELOPMENT AND THAT RE-
STRICTS DEVELOPMENT OF LAND TO THE
CONSTRUCTION OF NO MORE THAN ONE
SINGLE-FAMILY DWELLENG PER ACRE DOES
NOT CONSTITUTE A TAKING OF PROPERTY
WITHOUT JUST COMPENSATION IN VIOLATION
OF THE FIFTH AND FOURTEENTH AMEND-
MENTS

A. A Zoning Ordinance Having a Substantial Relation
to the Public Welfare Does Not Take a Landown-
er’s Property in Violation of the Fifth and Four-
teenth Amendments Where a Reasonable Beneficial
Use of the Property is Permitted

In Euclid v. Ambler Realty Co., 272 U.S. 365
(1926), this Court set out the principles applicable
to a determination of the facial validity of a zoning
ordinance attacked as a violation of the Takings
Clause of the Fifth Amendment, made applicable to
the states through the Fourteenth Amendment. The
specific allegation of the landowners in Euclid was
that the very existence of the ordinance depressed the
value of their property from $10,000 per acre to
$2,500 per acre because it prohibited use of that prop-
erty for the construction of industrial or commercial
buildings and apartment houses (272 U.S. at 384-
385). This diminution in the value of the property,
they alleged, made the ordinance unconstitutional on
the ground that it was both “unreasonable and con-
fiscatory” (id. at 386). |

The Court rejected the argument. It held, first, that
the ordinance was a reasonable exercise of the police

13

power, the test being whether its provisions were not
“clearly arbitrary and unreasonable, having no sub-
stantial relation to the public health, safety, morals,
or general welfare” (id. at 395). In reaching this
conclusion the Court noted, inter alia, the desirability
of maintaining “open spaces and attractive surround-
ings created by the residential character of [a] dis-
trict” (id. at 394); and it found the justification for
the many restrictions in the ordinance in the changing
conditions of urban life (id. at 386-387) :

Until recent years, urban life was compara-
tively simple; but with the great increase
and concentration of population, problems have
developed, and constantly are developing, which
require, and will continue to require, additional
restrictions in respect of the use and occupation
of private lands in urban communities. Regu-
lations, the wisdom, necessity and validity of
which, as applied to existing conditions, are so
apparent that they are now uniformly sustained,
a century ago, or even half a century ago, prob-
ably would have been rejected as arbitrary and
oppressive.

Continuing its consideration of the reasonableness
of the regulation, the Court next inquired into the
injury alleged—the adverse effect on market value of
the property allegedly resulting from the mere exist-
ence of the ordinance—and concluded that this also
was insufficient to establish the unconstitutionality of
the ordinance. Jd. at 395-396."

4 The Court noted that it did not have before it the question
of specific damage resulting from the application of particular
provisions of the ordinance to particular parcels of the own-
ers’ property. Id. at 397.

14

More recently, in Penn Central Transportation Co.
v. New York City, 488 U.S. 104 (1978), this Court
summarized principles applicable to “takings” claims
generally and to.claims that a particular law restrict-
ing land use is unconstitutional as applied to the
property of the one alleging the taking.’ There the
Court discussed a number of factors of particular
significance in evaluating taking claims; but the
factors fall generally under two headings—the char-
acter of the government action and its impact on the
particular claimant. Jd. at 124-128.

As to the first, the Court stated (id. at 124) that
a taking is much “more readily * * * found when the
interference with property can be characterized as a
physical invasion by government * * * than when in-
terference arises from some public program adjusting
the benefits and burdens of economic life to promote
the common good.” In instances of the former, not
only is the interference direct and manifest, but fre-
quently the government in its “enterprise capacity”
acquires assets or otherwise benefits directly from the
interference at the claimant’s expense. 438 U.S. at
124, 128. See, e.g., United States v. Causby, 328 U.S.
256, 262-263 n.7 (1946) (low overflights of military

5 As we explain below (pages 19-20, infra), appellants in
the present case are barred, by their failure to apply for a per-
mit to build more than one house on their parcel, from at-
tempting to prove that they would be unable to meet the re-
quirements for permission to build the maximum of five per-
mitted by the ordinance. In any event, as we show below,
under the tests set out in Penn Central, supra, the ordinance
would not be unconstitutional even if appellants were allowed
to build only one single-family dwelling on their parcel.

15

planes not only “destroyed property”—by destroying
its use as a chicken farm—but also “used part of it’) ;
Portsmouth Co. v. United States, 260 U.S. 327 (1922)
(target fire by military installation across private
land). See also Armstrong v. United States, 364 U.S.
40, 49 (1960) (no physical invasion, but government’s
exercise of an option under a ship construction con-
tract held a taking where the government was “the
direct, positive beneficiary” of the resulting destruc-
tion of materialmen’s liens).

Where the asserted interference is “some public
program” (Penn Central, supra, 438 U.S. at 124)—
i.e., a regulation enacted pursuant to the police power
—the Court adheres to the Euclid test. It inquires
whether the regulation has as its objective a “per-
missible governmental goal” (Penn Central, supra,
438 U.S. at 129), and whether the restrictions it
imposes are “substantially related to the promotion”
of that objective (7d. at 138).° Thus, the Court noted
in Penn Central (id. at 125) that “in instances in
which a state tribunal reasonably concluded that ‘the
health, safety, morals, or general welfare’ would be
promoted by prohibiting particular contemplated uses
of land, this Court has upheld land use regulations
that destroyed or adversely affected recognized real

® The initial two-stage inquiry may also be regarded as a
substantive economic due process test. See, e.g., Hxxon Corp.
v. Governor of Maryland, 437 U.S. 117 (1978) (statute up-
held prohibiting petroleum refiners from operating retail
service stations in state) ; Nebbia v. New York, 291 U.S. 502
(1934) (convictions for selling milk below state-fixed price
upheld).

16

property interests.” It characterized zoning laws as
the “classic example” of government action viewed as
“permissible * * * even when prohibiting the most
beneficial use of the property.” Jbid. Significantly,
the Court rejected the notion that to be lawful a re-
striction must prohibit some “noxious” use, rather
than promote a public benefit (id. at 133-134 n.30).

In considering the second major set of factors—the
impact on the property owner of the asserted govern-
mental interference—the Court inquires whether the
owner is left with any reasonable beneficial use of
his property. Penn Central, supra, 438 U.S. at 135-
138. The “reasonable use” inquiry is sometimes made
difficult by the fact that property itself is not easily
definable. Property may consist of a myriad of rights,
powers, duties, privileges, and disabilities—sometimes
linked to a tangible res, sometimes not. See generally
Hohfeld, Some Fundamental Legal Conceptions As
Applied in Judicial Reasoning, 23. Yale LJ. 16
(1913) ; Hohfeld, Fundamental Legal Conceptions As
Applied in Judicial Reasoning, 26 Yale L.J. 710
(1917).

7 Theoretically rights in a tangible res, such as land, are
not superior to rights in intangibles; but as Mr. Justice
Holmes observed (Block v. Hirsh, 256 U.S. 185, 155 (1921)):

The fact that tangible property is also visible tends to
give a rigidity to our conception of our rights in it that
we do not attach to others less concretely clothed. But the
notion that the former are exempt from the legislative
modification required from time to time in civilized life is
contradicted not only by the doctrine of eminent domain,
under which what is taken is paid for, but by that of the
police power in its proper sense, under which property
rights may be cut down, and to that extent taken, without
pay.

17

Decisions of this Court concerned with takings
questions reflect this notion, for they speak of prop-
erty as a “bundle of rights.” Kaiser Aetna v. United
States, No. 78-738 (Dec. 4, 1979), slip op. 12; Andrus
v. Allard, No. 78-740 (Nov. 27, 1979), slip op. 14.
See also United States v. General Motors Corp., 323
U.S. 373, 377-878 (1945). At least where the exer-
cise of the police power is concerned and “‘where an
owner possesses a full ‘bundle’ of property rights,
the destruction of one ‘strand’ of the bundle is not a
taking, because the aggregate must be viewed in its
entirety.” Andrus v. Allard, supra, slip op. 14. See
also United States v. Willow River Power Co., 324
U.S. 499, 502, 510 (1945). Thus, in Penn Central,
the Court declined to focus only on the interference of
the police power restriction with the use of the air
rights above a building designated as a landmark but
rather looked at “the parcel as a whole.” 438 U.S. at
130-131. Whether a reasonable use of the parcel re-
mained was the focus of the Court’s inquiry. Id. at
131, 135-138. Similarly, in Andrus vy. Allard, the
Court did not find that an unconstitutional interfer-
ence had occurred when government regulation pro-
hibited sale of an owner’s property, because, as it ob-
served (slip op. 14), the property owners “retain[ed]
the rights to possess and transport their property,
and to donate or devise” it.®

8 This Court’s decision in Kaiser Aetna v. United States,
supra, is not to the contrary. The court focused in that case on
an interference with the “ ‘right to exclude’ ” and found that
the federal government’s exercise of its navigational servitude,

18

The upshot is that a mere diminution in the value
of property cannot effect a taking. Penn Central,
supra, 438 U.S. at 181. Thus, this Court has upheld
regulations challenged as takings even where the
economic impact on the owners is extremely severe.
See, e.g., Miller v. Schoene, 276 U.S. 272 (1928),
_ (cedar trees destroyed in order to prevent spread of
disease to area’s commercially valuabie apple trees) ;
Euclid vy. Ambler Realty Co., supra (75% diminution
in value caused by zoning law) ; Hadacheck v. Sebas-
tian, 2389 U.S. 394 (1915) (87% diminution in
value). A law may prohibit the most profitable uses
of property without constituting a taking. So long as
any reasonable beneficial use remains, a law valid
under the substantive due process test discussed
above is not impermissible under the Takings Clause,

which threatened the interference, would amount to an uncon-
stitutional taking given the particular circumstances of that
case; at least two factors, singly, or in combination, may have
been critical to the holding. First, petitioners, at considerable
expense, had developed a private pond into a marina, the use
of which was offered to boat owners for a fee; and the govern-
ment’s attempt to prohibit petitioners from excluding the gen-
eral public destroyed the sole use for which the marina was
economically feasible. Second, the government had consented
to the dredging and filling without indicating that any public
access condition would be imposed—conduct that the Court
characterized as leading to “the fruition of a number of ex-
pectancies” (slip op. 15). See also Penn Central, supra, 438
U.S. at 124 (emphasizing the significance of “distinct, invest-
ment-backed expectations”’).

of

19

despite the absence of any provision for compen-
sation.°

Finally, in determining whether there is a remain-
ing beneficial use, it is appropriate to consider the
benefits that will accrue to the property owner under
the law he is challenging as a taking. Even where a
severe burden is imposed on an owner by restric-
tions on his use, possession, or disposition of property,
there may be indirect benefits that will work to his
profit in the long term, as the law’s objectives come
to fruition. See Penn Central, supra, 488 U.S. at
134-135, 187.

B. The City’s Ordinance Does Not Effect a Taking of
Appellants’ Property

1. Only facial validity of the ordinance is at issue

At the outset, we should note that because appel-
lants failed to apply for permission to build five
single-family dwellings on their parcel—the maxi-
mum permissible under the ordinance—they are not
entitled to attack the ordinance as it might spe-
cifically affect them should they make such an appli-

® Circumstances may exist, however, in which even what the
owner contends is the sole reasonable beneficial use (because
the only profitable use) of property may validly be prohibited
without paying compensation. For example, the owner may
have no reasonable expectation of using the property in that
way because of existing regulatory requirements. See also
United States v. Central Eureka Mining Co., 357 U.S. 155
(1958) (uphelding prohibition, imposed pursuant to the war
power, on operation of gold mines).

20

cation.” Under California law, this failure to ex-
haust administrative remedies restricts them to an
attack on the ordinance as facially invalid. See, e.g.,
Pan Pacific Properties, Inc. v. County of Santa Cruz,
81 Cal. App. 3d 244, 249-251, 146 Cal. Rptr. 428,
431-433 (1978) ; Igna v. City of Baldwin Park, 9 Cal.
App. 3d 909, 914-915, 88 Cal. Rptr. 581, 585 (1970).
Thus appellants are not entitled to a trial to inquire
into how the planning requirements and the standards
of the ordinance might affect them. It must be, as-
sumed, for purposes of this appeal, that they may
build five single-family dwellings and accessory build-
ings on their parcel.

In any event, under the principles discussed above,
it is clear that the enforcement of the ordinance at
issue here, which, in the interest of sound municipal
land use planning, imposes restrictions on the devel-
opment of certain open space areas, does not effect
a taking of appellants’ property without just compen-
sation, even assuming they are not able to build the
permitted maximum of five dwellings on their par-
cel. It is virtually undisputed that the ordinance
promotes the public welfare; and despite certain con-
clusory allegations in their complaint, it seems evident
from the specific factual allegations that appellants

10 Appellants’ complaint expressly challenged only the ordi-
nance (No. 124 N.S.) that designates their parcel RPD-1.
- That ordinance of course, incorporates by reference the ordi-
nance (No. 123 N.S.) that specifies permissible uses for RPD-1
land (see page 4, note 1, supra); for simplicity’s sake, we
shall follow appellants and the California Supreme Court in
referring to “the ordinance.”

21

will retain not only a reasonable—but a profitable—
use of their property, whatever their success in meet-
ing the planning requirements for building more than
one single-family dwelling on the parcel.

2. The ordinance promotes the public interest in
sound land use planning

Appellants did not, in the court below, dispute the
propriety of the objective of the City’s ordinance, nor
do they seriously do so here.’ Indeed, since they seek

11 Appellants assert that the City “is already blessed with
ample environmental resources” (App. Br. 40), and they refer
pejoratively at one point to “community environmentalist
zealots” (App. Br. 42); but in their only discussion of the
substantive due process test, which is part of the “takings” in-
quiry, they notably fail to deny that the restrictions imposed
by the ordinance lack a substantial relation to the general wel-
fare (App. Br. 25-26). Instead, they complain that there was
no finding by a state tribunal on this question. But such a
finding was implicit in the California Supreme Court’s ulti-
mate conclusion that the ordinance was constitutionally valid;
since appellants did not contend before that court that the
objective of preserving open space was not a permissible goal,
there was no reason for the Court to discuss the point in
detail. Appellants’ discussion of this point in their brief in
this Court (App. Br. 25-26) confuses the question whether a
law has a substantial relation to the public welfare with the
quite different question whether it leaves a particular prop-
erty owner with no beneficial use of his property.

Appellants’ suggestion (App. Br. 27-29) that the ordinance
was enacted—and the open space plans of consultants pub-
lished—in order to “facilitate” the City’s “acquisition” of the
property displays a curious ambiguity in the use of the term
“acquisition,” and—when analyzed—states no genuine sepa-
rate claim against the City at all. If appellants are suggesting
that the City enacted the ordinance in order to reduce the

22

to compel the equivalent of an eminent domain action
by requiring the City to purchase their land (see
Point II, infra), it would be inconsistent for them to
contend that restricting the land to the uses specified
by the ordinance fails to promote a valid public

purpose.

Nevertheless, should appellants belatedly undertake
to dispute the matter, they would face compelling
arguments to the contrary. As this Court has ob-
served, “States and cities may enact land use restric-
tions or controls to enhance the quality of life by
preserving the character and desirable aesthetic fea-
tures of a city.” Penn Central Transportation Co.
v. New York City, 488 U.S. 104, 129 (1978) (cita-
tions omitted). The open space concerns of the City
of Tiburon fall squarely within these goals. In re-

value of their parcel so that it could be purchased cheaply in
eminent domain proceedings, they make nonsense of their
central argument that the City is wrongfully refusing to ac-
quire their property through such proceedings and must be
forced to do so pursuant to the grant of an “inverse condem-
nation” remedy. If they are contending, instead, that the
ordinance is a devious means of avoiding the necessity of pay-
ing anything for the land—.e., of avoiding eminent domain
proceedings—they are merely stating their main argument
(that this kind of zoning is itself a form of “acquisition’’) in
somewhat different terms. As we explained elsewhere (pages
14-15, supra, page 24, infra), this second argument reflects a
misreading of this Court’s decisions regarding takings chal-
lenges. In any event, the argument does not assume that pres-
ervation of open space areas is an impermissible governmen-
tal goal.

We note also that appellants have not alleged that the ordi-
nance was motivated by racial or otherwise invidious discrimi-
nation or that it violates any civil rights statutes.

23

stricting a modicum of land to open space uses and

. to single-family dwellings, the ordinance is akin to a

number of zoning ordinances upheld by this Court.
See Village of Belle Terre v. Boraas, 416 U.S. 1, 9
(1974) (zoning power can legitimately be used to
create a “quiet place where yards are wide, people
few * * * and the blessings of quiet seclusion and
clean air make the area a sanctuary for people”) ;
Gorieb v. Fox, 274 U.S. 608, 608 (1927) (sustaining
propriety of setback regulations that by their terms
require open space areas on land) ; Euclid v. Ambler
Realty Co., 272 U.S. 365, 394 (1926) (excluding
apartment houses from a residential district is a
permissible restriction) .”

The ordinance at issue in this case was, moreover,
enacted in response to a state law requiring cities
and counties to develop local open-space plans in
order to discourage “premature and unnecessary con-
version of open-space land to urban uses” (Cal. Gov’t
Code § 65561(b) (West Supp. 1980)). Because the
restrictions in the ordinance are not solely applicable
to the property of any one owner, but are part of a
comprehensive plan that seeks to achieve balanced
land use in the community, the ordinance is not ob-
jectionable as an instance of spot-zoning. See Penn
Central, supra, 488 U.S. at 135 n.32. See generally

12 One acre zoning limitations are almost uniformly upheld
by courts in the major zoning states. See generally, 2 N. Wil-
liams, American Planning Law—Land Use and the Police
Power, ch. 39 (1974) ; R. Anderson, American Law of Zoning
§§ 7.20, 9.60 (1976).

24

Haar, “In Accordance with a Comprehensive Plan,”
68 Harv. L. Rev. 1155 (1955).

Finally, because the ordinance is simply a variant
of density regulation, a traditional use of the zoning
power, it is incorrect to argue, as appellants do (App.
Br. 26-27), that the ordinance is an instance of ygov-
ernmental “acquisition” of assets belonging to appel-
lants and others whose iand has been zoned RPD-1,
accomplished “in the guise of regulation.” This
Court’s discussion in Penn Central, supra, of the sorts
of “government actions that may be characterized as
acquisitions of resources to permit or facilitate
uniquely public functions,” which “have often been
held to constitute ‘takings’” (4388 U.S. at 128), makes
it clear that those are cases in which the government
itself is directly invading or otherwise using the prop-
erty. In the present case, as shown, the City has
merely acted to prevent appellants and others from
developing their land in a manner that would defeat
sound urban planning goals. Such action is a classic
use of the police power (see Penn Central, supra,
438 U.S. at 125) that benefits not the government
acting in its enterprise capacity, Put the public as a
whole.

In sum, it cannot seriously be maintained that the
ordinance at issue here is not substantially related
to the promotion of the general welfare. Given the
severely limited scrutiny of this Court into such
questions (see Goldblatt v. Town of Hempstead, 369
U.S. 590, 595-596 (1962)), leaving the issue essen-
tially undisputed was clearly appellants’ wisest course.

25

As they have asserted, when pursuing another point
(App. Br. 40-41): “[S]ound time-tested reasons of
public policy respectful! of the doctrine of separation
of powers, counsel against the judiciary’s too-ready
constitutional intervention in peculiarly local, often
political, land use decisions on an ongoing daily
basis.” We would qualify that statement only by
noting that in recent decades the judiciary has, on
the whole, avoided this sort of intervention, as the
trial court and the California Supreme Court have
done in the present case.

3. The ordinance does not leave appellants without
a reasonable beneficial use of their land
In their complaint, appellants alleged (A. 7) that
the ordinance “has completely destroyed the value of
[their] property for any purpose or use whatsoever
* * *” Under California demurrer practice, as is the
case generally, no court is bound to accept such a
conclusory allegation as true, particularly where it is
contradicted by the terms of the ordinance put in is-
sue and by other specific factual allegations of the
complaint. See Dale v. City of Mountain View, 55
Cal. App. 3d 101, 105, 127 Cal. Rptr. 520, 522-523
(1976); Hecton v. People ex rel. Department of
Transportation, 58 Cal. App. 3d 6538, 130 Cal. Rptr.
230 (1976); Cal. Evid. Code § 452 (West 1966). See
generally, Pierce Oil Corp. v. City of Hope, 248 U.S.
498, 500 (1919) ; 2A Moore’s Federal Practice 12.08
& n.4 (2d ed. 1979) (in a motion to dismiss, as in a
demurrer, “conclusions of law or unwarranted deduc-
tions of fact are not admitted’).

26

Appellants’ allegation that their land has been ren-
dered worthless by the ordinance is squarely contra-
dicted by the terms of the ordinance, which permits
the construction of one single-family dwelling as of
right and up to five such dwellings where planning
requirements are met, and by the specific allegation
elsewhere in the complaint (A. 4) that residential
development is the highest and best use of the land.
Appellants’ further allegations that land in the gen-
eral area has “the highest land value per acre for sub-
urban areas in the State of California” (A. 3) and
that their parcel in particular has “the highest mar-
ket value[] of all lands within the city limits”
(A. 4) make it evident that the construction and
sale of the number of dwellings permitted by the
ordinance would hardly be an unprofitable use of
the land.

It is, moreover, noteworthy that one of the factors
described by the complaint as contributing to the
value of appellants’ parcel is the existence of “mag-
nificent views of San Francisco Bay and the scenic
surrounding areas” (A. 4). As the City zoning map
makes clear (C. Tr. 21M), the continued existence
of some of those “scenic surrounding areas” is made
possible by the very ordinance that appellants attack.
Should the ordinance be struck down and develop-
ment proceed apace, the value of appellants’ land
would decrease accordingly, if the significance of the
scenic views is to be accepted as alleged in the com-
plaint. It is not surprising, then, that the thrust of
appellants’ argument is not that the ordinance should

27

be struck down, but that the City should be com-
pelled to buy their land at the value it enjoys as prop-
erty surrounded by landscape uncluttered by struc-
tures built for the profit of other property owners.
The ordinance at issue here is, in sum, an excellent
example of a regulation that “applies over a broad
cross section of land and thereby ‘secure[s] an aver-
age reciprocity of advantage.” Penn Central Trans-
portation Co. v. New York City, 438 U.S. 104, 147
(1978), quoting Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 415 (1922).

Moreover, it may also be noted that the complaint
nowhere alleges that, at the time appellants pur-
chased the parcel in question, it was zoned for a
residential dwelling density significantly different
from the maximum density allowed under the ordi-
nance here challenged. If, for example, the parcel
had previously been zoned for one single-family dwell-
ing and associated buildings per acre, then the only
loss appellants could allege would be loss of the right
to build at that density without meeting special plan-
ning requirements. (See Appendix C to brief amici
curiae of the Conservation Foundation, et al.) The
failure to make any such allegation in the complaint
represents a serious deficiency, since appellants may
not properly be found to have been deprived of prop-
erty rights they did not possess before the challenged
ordinance was enacted.

In sum, appellants’ complaint, read in its entirety,
makes none of the factual allegations that, under
relevant decisions of this Court, might be indicative

28

of a taking without just compensation within the
meaning of the Fifth Amendment. The California
Supreme Court thus properly affirmed the dismissal
of the complaint on the City’s demurrer; and, be-
cause the only other distinct issue raised by appellants
here is a question of remedy that this Court need
not reach if it finds that the ordinance does not
constitute a taking, the Court may find it appropri-
ate to dismiss the appeal for want of a substantial
federal, question.

Il. THE FIFTH AND FOURTEENTH AMENDMENTS
DO NOT REQUIRE THAT A STATE COURT AF-
FORD A REMEDY IN DAMAGES IF PLAIN-
TIFFS ALLEGE AND PROVE THAT A ZONING
ORDINANCE CONSTITUTES AN UNCONSTITU-
TIONAL TAKING OF THEIR PROPERTY, WHERE
THE REMEDIES OF DECLARATORY RELIEF AND
MANDAMUS ARE AVAILABLE

A. Introduction

Appellants contend that when a state court de-
termines that a zoning ordinance has so exceeded the
limits of the police power as to constitute an uncon-
stitutional taking of property, the court is not free
to limit the plaintiffs to declaratory relief and man-
damus but must afford them the right to recover
darnages on a theory of inverse condemnation. Appel-
lants’ position rests on the arguments (1) that the
enactment of a law that is intended to regulate uses
of property, but that is deemed invalid by a court
because its operation would destroy all beneficial use
of affected property, is the equivalent of an author-
ized exercise of the power of eminent domain (App.

Drm

29

Br. 15-21); (2) that the equitable remedies available
in the California courts for claims like those made in
the present case are inadequate (App. Br. 44-55);
and (3) that policy considerations militate in favor
of requiring the California courts to afford plaintiffs
in appellants’ position a damages remedy (App. Br.
41-43). Appellants further assert (App. Br. 31-41)
that decisions of this Court support their position that
they are constitutionally entitled to damages in “‘in-
verse condemnation” once they have shown a regula-
tory measure to be invalid under the Takings Clause.

As we show below, however, an invalid police power
measure regulating uses of private property cannot
properly be equated with an exercise of the power of
eminent domain; contrary to appellants’ conten-
tion, the decisions of this Court do not establish the
propriety of that equation. As we further show, this
case fits within the general rule that state courts need
not offer any particular remedy for violation of a
federal right, so long as the remedies they afford are
adequate; and the remedies available in the California
courts in suits like the present case are constitution-
ally adequate. Finally, even though this Court per-
haps need not decide which remedies, as a matter of
policy, would best serve the interests of local govern-
men‘s as parties in state court actions, it seems evi-
dent taat it is distinctly not in the interest of local
governments to permit landowners who successfully
challenge land use regulations as takings to compel
the purchase of their lands by governing bodies that
have chosen only to regulate land uses.

30

We note at the outset, however, that it is not en-
tirely clear that no form of damages is ever available
in the California courts to those challenging regula-
tory measures as takings. In the present case, the
California Supreme Court stated only (J.S. App. 1)
that when a landowner establishes that a zoning
ordinance is constitutionally infirm because it “sub-
stantially limits use of his property” he “may not
recover damages on the theory of inverse condemna-
tion.” * In an earlier decision, HFH, Ltd. v. Superior
Court of Los Angeles County, 15 Cal. 3d 508, 517-
520, 542 P. 2d 237, 244-245, 125 Cal. Rptr. 365, 372-
373 (1975), cert. denied, 425 U.S. 904 (1976), in
which the California Supreme Court expressly con-
sidered the question whether “interim damages” (7.e.,
damages to compensate for economic losses suffered
before a zoning ordinance is invalidated by a court)
might be awarded to plaintiffs who showed a reduc-
tion in the market value of property induced by zon-
ing, the Court concluded that such damages would not
be available on that showing because a diminution in
value, alone, does not prove a taking; but the court
did not address the question whether such a damage
claim might be added to a “mandate action” where
facts showing a taking were established. 15 Cal. 2
at 519-520, 542 P. 2d at 245, 125 Cal. Rptr. at 373.
See also 15 Cal. 8d at 516 n.14, 542 P. 2d at _———

18 Because the California Supreme Court found the ordi-
nance at issue here valid, its discussion of the remedy question
is technically dictum rather than holding, albeit well considered
dictum.

Cet a) sew Swe te or eer bene?

31

125 Cal. Rptr. at 373 n.14.%* In addition, the Cali-
fornia Supreme Court has not necessarily foreclosed
the possibility of a damages remedy where land-
owners sue in a state court under 42 U.S.C. 1983,
alleging that a zoning ordinance deprives them of
their constitutionally protected property rights un-
der color of state law. The California Supreme Court
has held that state courts must entertain Section 1983
actions (Brown v. Pitchess, 13 Cal. 8d 518, 531 P. 2d
772, 119 Cal. Rptr. 204 (1975)), and the court has
not had occasion to decide what remedies are available
where claims similar to those brought by appellants
in the present case are raised under that federal sta-
tute.** Of course, it is likely that the California court

4In HFH, Ltd., the California Supreme Court treats the
issue of the availability of damages based on an inverse con-
demnation theory as separate from the issue of the availability
of interim damages as part of a writ of mandate (see Cal.
Civ. Proc. Code § 1095 (West Cum. Supp. 1980) ). In discuss-
ing the latter issue, the California court did suggest that the
state tort immunity statute (Cal. Gov’t Code § 818.2 (West
1966) ) would preclude liability for interim damages based
on a claim analogous to state tort law, but avoided addressing
the question of the propriety of liability for interim damages
(such as holding costs) if such a claim was of constitutional
dimension. Courts in California have given no indication
that the state tort immunity statute would preclude a damage
claim as part of a writ of mandate if it ever was constitu-
tionally required. See Graham v. City of Biggs, 96 Cal. App.
3d 252, 157 Cal. Rptr. 761 (Ct. App. 1979) (state tort im-
munity statute inapplicable to action brought under Section
1983) ; Rossiter v. Benoit, 88 Cal. App. 3d 706, 152 Cal. Rptr.
65 (1979) (requirements of state tort claims inapplicable to
Section 1983 claim).

15 In any event, whether a damage action is based on Section
1983 or directly on the Constitution, it is possible that the City

32

would conclude that at least the “inverse condemna-
tion” damages remedy is unavailable there for the
same reasons it found it unavailable in the present
case. See Jacobson v. Tahoe Regional Planning
Agency, 474 F. Supp. 901 (D. Nev. 1979) (federal
court holding that “damages for inverse condemna-
tion” are unavailable in challenge to land use law
under 42 U.S.C. 1983).

In these circumstances, this Court may deem it
premature to decide now whether a damages remedy
must, as a matter of federal constitutional law, be
made available to those challenging land use regu-
lations as takings in state courts. See Phyle v. Duffy,
334 U.S. 431 (1948).

B. A Zoning Ordinance Deemed Invalid as a Taking
of Property without Compensation is Not the Equiv-
alent of an Exercise of the Power of Eminent
Domain

Appellants’ claim of entitlement to damages in “in-
verse condemnation” appears to be essentially a claim
“based on the right to recover just compensation for
property taken by [the City] for public use in the
exercise of its power of eminent domain” (Jacobs v.
United States, 290 U.S. 18, 16 (1933)). This Court

would enjoy immunity either under state or federal immunity
law. This Court has decided neither the extent, if any, to which
state law immunity could bar a federal constitutional claim
(see Ferri v. Ackerman, No. 78-5981 (Dec. 4, 1979), slip op.
5 n.18; Martinez v. California, No. 78-1268 (Jan. 15, 1980),
slip op. 7 n.11) nor the scope of any qualified immunity the
City may enjoy under federal law for any good faith enact-
ment of a regulation (see page 44, note 17, supra).

ee ee ee oer

33

has recognized two ways in which a government, the
United States, for example, may exercise that power
(United States v. Dow, 357 U.S. 17, 21 (1958)):

Broadly speaking, the United States may take
property pursuant to its power of eminent do-
main in one of two ways: it can enter into physi-
cal possession of property without authority of a
court order; or it can institute condemnation pro-
ceedings under various Acts of Congress provid-
ing authority for such takings. Under the first
method—physical seizure—no condemnation pro-
ceedings are instituted, and the property owner
is provided a remedy under the Tucker Act. 28
U.S.C. §§ 1846(a) (2) and 1491, to recover just
compensation. See Hurley v. Kincaid, 285 U.S.
95, 104. Under the second procedure the Govern-
ment may either employ statutes which require
it to pay over the judicially determined compen-
sation before it can enter upon the land, * * *
or proceed under other statutes which enable it
to take immediate possession upon order of court
before the amount of just compensation has been
ascertained.

See also United States v. Clarke, No. 78-1693 (Mar.
18, 1980), slip op. 2-3; United States vy. Dickinson,
331 U.S. 745, 747-748, 749 (1947). Appellants are
proposing a third way in which the eminent domain
power may be exercised: the enactment of a regula-
tory measure that is ultimately held by a court to be
unconstitutional because, if enforced, it will deprive
a landowner of any reasonable beneficial use of his
property without compensating him for the depriva-
tion. Appellants further propose (App. Br. 9) that

34

such an enactment gives the affected property owners
a “cause of action” in “inverse condemnation.”

Appellants’ argument has two basic fallagies. First,
their use of the term “inverse condemnation” confuses
their cause of action—i.e., a claim that the City has
violated their rights under the Fifth and Fourteenth
Amendment by depriving them of substantially all
beneficial use of their property without compensation
—with the remedy they seek—.e., money damages.
The two are not the same: the cause of action may
exist without regard to what relief is requested or
granted. See Davis v. Passman, 442 U.S. 228, 239-
240 & n.18 (1979). Second, appellants overlook a
vital distinction between the enactment of a law regu-
lating the uses of property and the two types of gov-
ernment action described in United States v. Dow,
supra. It is logical to speak of “the choice of the con-
demning authority to take property by physical in-
vasion” or “by a formal condemnation action” (United
States v. Clarke, supra, slip op. 5 (emphasis sup-
plied) ) and to award compensation for the property
thus taken. In the former case, the government has
appropriated property in a manner that precludes its
return, giving rise to an implied promise to pay if the
appropriation of property is authorized by a valid
statute (see Dugan v. Rank, 372 U.S. 609, 619-623
(1968); Hooe v. United States, 218 U.S. 322,
(1910)). In the latter, of course, the government
has expressly announced its intention to pay by filing
the proceeding.

Where a legislative body has enacted a regulatory
measure such as a zoning ordinance, however, it has

ns ade a wd

er

35

in effect announced a decision to define property rights
rather than to acquire them. A government may, up
to a point, validly “cut down” property rights without
paying where the restriction on such rights is sub-
stantially related to the public welfare. Block v.
Hirsh, 256 U.S. 1385, 155 (1921). When the govern-
ment cuts them down unreasonably, one may call the
result a taking of property; but it is unreasonable to
speak of the government’s “choice” to acquire the
property or its implied promise to pay compensation.
Instead, when a court determines that a regulatory
measure is invalid as a “taking,” a government is
then faced with a different choice: it may continue
to restrict the rights and pay for them, or it may
forego restricting the rights.

Appellants seek to present their position as one
thai offers a government flexibility and minimal in-
trusion by the judiciary (App. Br. 36-43), but the
effect of recognizing their claim of constitutional en-
titlement to this damages emedy is in fact to deprive
a government of that choice. Invalidation of the
regulation would leave a government with the option
of filing appropriate condemnation proceedings, re-
enacting the measure with a compensation provision,
or abandoning the effort to restrict the rights. Appel-
lants would have courts disregard the government’s
choice and force it to purchase the affected property.

The decisions of the Court principally relied on by
appellants fail to support their position. As appel-
lants freely concede (App. Br. 31-34), in most of the
decisions of this Court concerned with regulatory
measures challenged as takings, injunctive relief

36

rather than money damages had been sought, and in
none of the cases has monetary relief been awarded.
The cases in which damages have been awarded are,
with one exception discussed below (page 37), physi-
cal seizure cases. Moreover, several of those decisions
contain language indicative of this Court’s sensitivity
to the question of a government’s choice. Dugan v.
Rank, supra, Fresno v. California, 372 U.S. 627
(1963), and United Stutes v. Gerlach Live Stock Co.,
339 U.S. 725 (1950), all involved the actual diversion
of water from the lands of private owners; and Hur-
ley v. Kincaid, 285 U.S. 95 (1932), concerned a claim
that plaintiff’s lands would be flooded as a result of
the construction of a federal floodway project. Even
though Gerlach, like the others, was a case of taking
by seizure, the Court carefully avoided the question of
any constitutional entitlement to damages and found
instead that Congress intended to pay for the state-
defined water rights involved. As the Court explained
(339 U.S. at 739): “Congress realistically elected
to treat [the dam construction] as a reclamation
project[,]” “to recognize any state-created rights and
to take them under the power of eminent domain.”

In Hurley v. Kincaid, supra, the Court denied the
plaintiff’s request for an injunction against construc-
tion of the floodway, but held that Congress had, in
the Tucker Act, 28 U.S.C. 1346(a) and 1491, pro-
vided a remedy in damages should construction of the
project go forward as authorized. The Court denied
the injunction request in part because it would give
plaintiff relief before any injury had been done (285
U.S. at 104); thus, even though plaintiff had alleged

ne etna a

37

that the very existence of the statute authorizing the
project had placed a “cloud upon [his] title’ and
“materially affected and impaired the value thereof”
(285 U.S. at 101 n.1), the Court found no entitle-
ment to a remedy until the government had cast the
die by commencing the project.

In the Regional Rail Reorganization Act Cases, 419
U.S. 102 (1974), the Court was not dealing with a
physical seizure, but in holding that the property own-
ers concerned would be entitled to a remedy in dam-
ages should the statute in operation deprive them of
full compensation for the property rights they were
required to surrender, the Court was careful to de-
termine that the granting of such a remedy would not
be contrary to congressional intent. It satisfied itself
that the Tucker Act remedy had not been withdrawn
by Congress when enacting the Rail Reorganization
Act (419 U.S. at 125-136, 148); and it further noted,
in connection with both categories of takings alleged
(id. at 129, 148), that the legislative history of the
Rail Act indicated that Congress had intended to pro- |
vide the minimum amount of compensation required
for the act to be constitutionally valid. The Court did
not hold that Congress could not constitutionally have
withdrawn the Tucker Act and remitted the property
owners to equitable remedies.

In the present case, the California Supreme Court
has determined (J.S. App. 1) that state law provides
no money damages “on the theory of inverse condem-
nation,” and that conclusion is binding on this Court.
Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590

38

(1875). The ordinance in question, by its nature,
indicates an intent on the part of the City to avoid
reliance on the power of eminent domain; it was,
moreover, enacted in response to a state statute that
expressly declines to authorize a city or county to
adopt an “open-space zoning ordinance in a manner”
that would constitute a taking of property without
compensation, (see Cal. Gov’t Code § 65912 (West
Supp. 1980)); accordingly, the City must have in-
tended to avoid imposing any burdens on property
owners that would give rise to compensation claims
such as that made by appellants here. As we have
argued in Point I, we think it clear that the ordin-
ance is a reasonable exercise of the police power and
does not constitute a taking; but if the City has mis-
judged the degree to which it may validly control the
density of residential development without having to
resort to proceedings under eminent domain, it should
surely not be found to have impliedly agreed to pur-
chase property the uses of which it sought only to
regulate.

C. The Equitable Remedies Available in the California
Courts are Adequate Remedies for Claims that a
Zoning Ordinance Deprives a Landowner of Sub-
stantially All Beneficial Use of his Property

Appellants also suggest (App. Br. 44-45) that they
are constitutionally entitled to a damages remedy be-
cause invalidation of the ordinance, if it were found
to constitute a taking, would be an inadequate rem-
edy for the constitutional violation. , The argument
represents at least implicit . cognition of principles
of federalism affording a state court broad discretion

Senta a ce a RAIN Cn: el Da RS TGS

39

in fashioning remedies for violations of federal rights,
so long as the state court affords an adequate remedy.
See generally Hill, Constitutional Remedies, 69 Colum.
L. Rev. 1109, 1118 (1969); Hill, The Bill of Rights
and the Supervisory Power, 69 Colum. L. Rev. 181,
181-187, 191-193 (1969); Note, State Remedies for
Federally-Created Rights, 47 Minn. L. Rev. 815, 830-
834 (1963). Thus, this Court has interfered with
a state court’s choice of remedy for violation of a
federal right only where the sole remedy offered in
the state courts is wholly inadequate, in effect deny-
ing any relief for the violation. Jowa-Des Moines
National Bank v. Bennett, 284 U.S. 239, 247 (19381);
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281
U.S. 678, 682 (1930); Ward v. Board of County
Comm’ rs, 253 U.S. 17 (1920); Poindexter v. Green-
how [The Virginia Coupon Cases], 114 U.S. 270, 308
(1885). See also Abood v. Detroit Board of Educa-
tion, 431 U.S. 209, 237-242 & n.45 (1977) (discuss-
ing adequate remedies for constitutional violation
without directing state court to adopt one in particu-
lar); Miranda v. Arizona, 384 U.S. 486, 467 (1966)
(states free to develop adequate safeguards, other
than that devised by the Court, to protect the privi-
lege against self-incrimination during custodial inter-
rogation); Mapp v. Ohio, 367 U.S. 648, 651-653
(1961) (exclusionary rule applied to use in state
court proceedings of evidence seized in violation of
the Fourth Amendment because other remedies had
provided futile). Indeed, the fact that a state offers
an adequate remedy amounts to an adequate state

40

ground for a decision even if the party seeking re-
view in this Court was not accorded the remedy be-
cause he failed to apply for it. Phyle v. Duffy, 334
U.S. 481 (1948); Woods v. Nierstheimer, 328 U.S.
211, 214, 216 (1946) ; Mellon v. McCafferty, 239 U.S.
134 (1915).

Nothing in this Court’s decisions suggests that the
Constitution requires that a damages remedy be made
available to those challenging zoning ordinances as
takings. Indeed, this Court has moved with caution
even in determining whether a damages remedy is
authorized in suits, based directly on the Constitu-
tion, that are brought in federal courts against fed-
eral officials. Thus, it held in Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388, 396 (1971),
that damages were an available remedy for a par-
ticular type of Fourth Amendment violation where
there were “no special factors counselling hesitation
in the absence of affirmative action by Congress.”
And in Davis v. Passman, supra, this Court found
damages to be an appropriate remedy for a particular
equal protection claim under the Due Process Clause
of the Fifth Amendment where “there are available
no other alternative forms of judicial relief” (442
U.S. at 245); but, as the Court noted (7d. at 248),
“were Congress to create equally effective alternative
remedies, the need for damages relief might be ob-
viated.”’ Because, as we have shown above (pages 34-
37), a suit challenging a reguiatory measure such as
a zoning ordinance is distinguishable from the physi-
cal seizure cases, in which “ ‘the self-executing char-
acter of the constitutional provision with respect to

See

i ne ee

41

compensation’ ” (United States y. Clarke, supra, slip
op. 4) warrants a damages remedy, there is no rea-
son tor the Court to abandon its cautious approach
respecting remedies in the present case.

The facts alleged in the appellants’ complaint in
no way suggest that, if the ordinance at issue here
is determined to be a taking, the remedies of declara-
tory relief and mandamus would be inadequate as a
matter of constitutional law.** A declaration that the
ordinance is invalid would relieve appellants of the
restrictions they contend have rendered their prop-
erty worthless, and were the City, for example, to
impose permit requirements that amounted to an
attempt to evade the court’s decision, the mandamus
remedy would permit a court to compel issuance of
the permits. Appellants’ contention (App. Br. 44,
51) that the remedy is inadequate because the Cali-
fornia courts refuse to give it, is not a criticism of
the adequacy of the remedy, but an attack on the
merits of decisions finding that particular ordinances
do not amount to takings.

Appellants’ suggestion (App. Br. 41-42) that the
equitable relief specified by the California Supreme
Court would, in any event, be inadequate to remedy

16 Tt is perhaps for this reason that, in speaking of the al-
leged inadequacy of the remedy, appellants (App. Br. 44-53)
dwell primarily on anecdotal accounts of cases involving other
landowners and other laws and do not explain precisely why
an order invalidating the ordinance at issue here would be in-
adequate to remedy any injury of constitutional dimensions
they might be found to suffer, given the allegations of their
complaint.

42

damage for any “temporary or partial taking” also
finds no support in the allegations of their complaint.
They allege that the ordinance and the publication of
proposed City land use plans reduced the market value
of their land to the point of worthlessness because it
could not be developed or otherwise used (A. 7, 13).
As we have shown (page 26, supra), other allegations
of the complaint contradict that assertion; but, even
assuming it were true, invalidation of the restrictions
on development would remove the essential source of
that injury. As we have also shown (pages 13, 18),
diminution in market value is not an injury of con-
stitutional dimensions, so compensation on that ac-
count would not be justified; and mere hopes of earn-
ing profits are similarly noncompensable. See Mosca
yv. United States, 417 F.2d 1382, 1886 (Ct. Cl. 1969) ;
Eastport Steamship Corp. v. United States, 372 F. 2d
1002, 1010 (Ct. Cl. 1967) (Davis, J.). In any event,
appellants did not contend before the California Su-
preme Court that they had alleged facts entitling them
to such damages, and when they first raised the sub-
ject at all, in their petition for rehearing (App. Pet.
Reh. 25-26), they discussed it only as an abstract
proposition; accordingly the court below had no occa-
sion to address the question (see pages 30-32, supra).

D. Public Policy Considerations Support the Califor-

nia Supreme Court’s Determination of the Remedy
Issue

If this Court reaches the choice of remedy issue
and concludes, in agreement with our submission, that
the choice made by the California Supreme Court

Ritts ee ee ae

43

offends no federa! constitutional provision, the Court’s
task is at an end. For the wisdom of the policy
underlying such a state court determination is
uniquely for that court system to decide. See Hart,
The Relations Between State and Federal Law, 54
Colum. L. Rev. 489, 508 (1954). Cf. Miranda vy.
Arizona, 384 U.S. 486, 467 (1966).

In any event, the California Supreme Court was
surely correct in concluding (J.S. App. 9) that “pol-
icy considerations” favor “the view that inverse con-
demnation is an inappropriate and undesirable rem-
edy in cases in which unconstitutional regulation is
alleged.” As we have already remarked, acceptance
of the “inverse condemnation” remedy urged by ap-
pellants would, contrary to their contentions (App.
Br. 41-44), interfere with the freedom of a legisla-
tive body to decide whether and to what extent it
wishes to effectuate its land use policies through the
exercise of the power of eminent domain. If an
ordinance is invalidated in whole or in part, the en-
acting body is free to enact an amended ordinance,
proceed in eminent domain, or abandon its regulation
of the land uses concerned. Compelled purchase not
only restricts a government’s options as to land use
policy; it may create immediate budgetary problems
that affect the government’s ability to act in other
areas. Jacobson v. Tahoe Regional Planning Agency,
474 F. Supp. 901, 903 (D. Nev. 1979) ; Note, Inverse
Condemnation: Its Availability in Challenging the
Validity of a Zoning Ordinance, 26 Stan. L. Rev.
1439, 1450-1451 (1974). Of course, if a government

44

prefers that its land use scheme not suffer disrup-
tions through the invalidation remedy, it can draft
its legislation with a view to providing for compensa-
tion where a court deems that essential to the consti-
tutionality of the law. See F. Bosselman, D. Callies &
J. Banta, The Taking Issue 303 (1973) (describing
Dayton, Ohio, scheme for providing compensation in
cases in which land use restrictions as applied to par-
ticular properties are deemed to constitute a taking).

Even local governments that are not compelled to
purchase land contrary to legislative choice may
suffer if the inverse condemnation remedy sought by
appellants is made available in suits challenging zon-
ing ordinances. As the California Supreme Court has
recognized (J.S. App. 10-11), the very existence of
the remedy may intimidate local governments in their
community planning functions. Jacobson v. Tahoe
Regional Planning Agency, supra, 474 F. Supp. at
903; Note, Inverse Condemnation: Its Availabil-
ity in Challenging the Validity of a Zoning Ordi-
nance, 26 Stan. L. Rev. 1489, 1450 (1974); Note,
Eldridge v. City of Palo Alto: Aberration or New
Direction in Land Use Law?, 28 Hastings L.J. 1569,
1597 (1977).”

17 Similar considerations have led some courts to recognize
a good faith immunity defense for cities and counties sued for
governmental actions under 42 U.S.C. 1983. Owen v. City of
Independence, 589 F.2d 3385 (8th Cir. 1978), cert. granted,
No. 78-1779 (Oct. 1, 1979) (argued Jan. 8, 1980); Sala v.
County of Suffolk, 604 F.2d 207 (2d Cir. 1979), petition for
cert. pending, No. 79-620. In Monell v. New York City De-
partment of Social Services, 486 U.S. 658 (1978), this Court

45

Such inhibitions could, moreover, discourage state
and local governments from participating in federal
environmental programs that depend for their effec-
tiveness on state and local implementation. The
Coastal Zone Management Act of 1972, 16 U.S.C.
1451 et seq., for example, which was enacted to miti-
gate the destructive effects of intense development
pressures on coastal areas, is designed to encourage
the States “to use their full authority over the lands
and waters in the coastal zone by assisting the states
in developing land and water use programs for deal-
ing with coastal land and water use decisions of
more than local significance.” Section 302(c), 16
U.S.C. 1451(c) (emphasis supplied). Under Section
305 of the Act, 16 U.S.C. 1454, grants made by the
National Oceanic and Atmospheric Administration
have financed up to 80% of the development costs of
approved programs over the last five years. The
threat of financial liability of uncertain dimensions
in suits brought by landowners affected by develop-
ment restrictions imposed through these federally
assisted programs could discourage the development
of new programs and encourage some states to revise
existing programs for fear of the mere possibility
that a court might deem some’ restriction to be a
taking. The objectives of Congress in enacting the
Coastal Zone Management Act would, accordingly, be

held that cities and counties are liable to suit under Section
1983, but it did not decide whether a qualified immunity de-
fense would be available to them in such actions. Jd. at 713
n.9 (Powell, J., concurring).

46

seriously undermined. See also Comment, The Clean
Water Act and Related Developments in the Federal
Water Pollution Control Program During 1977, 2
Harv. Envt’l L. Rev. 108, 178-180 (1978) (state and
local land use controls in federally assisted programs
under Section 208(b)(2)(F)-(H) of the Clean
Water Act, 33 U.S.C. 1288(b) (2) (F)-(H)).

In sum, neither logic, precedent, nor policy consid-
erations support appellants’ contention that they are
constitutionally entitled, on any theory, to a damages
remedy should the zoning ordinance at issue here be
deemed a taking. Should the Court reach the remedy
issue, however, it may wish to confine itself to the
only question discussed by the California Supreme
Court: whether the Constitution requires that a land-
owner who successfully challenges a zoning ordinance
as a taking be allowed to recover damages on a
theory of inverse condemnation.

i

ee

47

CONCLUSION

Either the appeal should be dismissed for want of
a substantial federal question or the judgment of the
California Supreme Court should be affirmed.

Respectfully submitted.

WADE H. McCREE, JR.
Solicitor General

JAMES W. MOORMAN
Assistant Attorney General

LOuIS F. CLAIBORNE
Deputy Solicitor General

ELINOR HADLEY STILLMAN
Assistant to the Solicitor General

JACQUES B. GELIN
RICHARD JAMES LAZARUS
Attorneys

APRIL 1980

W ov. S. GOVERNMENT PRINTING office; 1980 317066 275

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1083%3A10. Public record. Not legal advice.