Record and brief — Gilliland v. City of Palmdale
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JUoWE}e}S
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81-1700 - Supreme Court, U.S.
No. ILED
IN THE MAR 15 1982
SUPREME COURT OF THE UN
October Term, 1981
ROBERT J. GILLILAND, MARY P. FITZ,
JAMES S. GILLILAND, and FRANK M.
GILLILAND,
Petitioners,
VS.
CITY OF PALMDALE and COUNTY OF
LOS ANGELES,
Respondents.
APPEAL FROM
COURT OF APPEAL OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION ONE
JURISDICTIONAL STATEMENT
JERROLD A. FADEM
MICHAEL M. BERGER
of FADEM, BERGER & NORTON
501 Santa Monica Boulevard
Suite 600
P.O. Box 2148
Santa Monica, CA 90406
(213) 451-9951
Attorneys for Petitioners
The Brief Shop © Legal Printers © (213) 877-8620
QUESTIONS PRESENTED
1. Is it constitutionally permissible for a state court to
hold unqualifiedly that payment of just compensation for
taking private property for public use is never available as a
remedy when such taking is by a regulation which deprives
the property owner of use of his property?
2. Is it constitutionally permissible for a state court to
hold unqualifiedly that the only remedy available to a pro-
perty owner whose property has been taken by a regulation
depriving him of use of his property, is to seek judicial
invalidation of such regulation?
3. Is it constitutionally permissible for a state court to
hold, without any factual inquiry as to whether the regulated
property is in fact economically or physically capable of
being put to uses theoretically permitted by the reguiation,
that as the regulation says that some uses are permitted, such
statement ipso facto disproves the landowners’ allegations
that in fact the regulation renders the property useless and
worthless?
4. Isis constitutionally permissible for a state to regulate
for the express purposes of violating the Fifth and Fourteenth
Amendment prohibitions against devoting property to a
public use without compensating the owner?
5. Isit constitutionally permissible for a state to refuse to
enforce federal remedies when a federal cause of action is
prosecuted in that state’s courts?
6. On the facts at bench, where the Appellants’ property
was stultified by regulation into uselessness and worth-
lessness, does the constitutional policy of fairness require that
the ensuing economic burden be borne by the benefited
public as a whole and not be disproportionately placed on the
Appellants?
a
TABLE OF CONTENTS
QUESTIONS PRESENTED
TABLE OF AUTHORITIES
THE OPINIONS BELOW
JURISDICTION
SUGGESTION THAT CONSIDERATION OF
THIS APPEAL BE JOINED WITH THE PETI-
TION FOR CERTIORARI IN GILLILAND vy.
UNITED STATES, NO. 81-1242.
CONSTITUTIONAL AND STATUTORY PRO-
VISIONS INVOLVED
RAISING THE FEDERAL QUESTION
STATEMENT OF THE CASE
THE QUESTIONS PRESENTED ARE
SUBSTANTIAL.
INTRODUCTION
CALIFORNIA HAS CHOSEN TO DEFY THIS
COURT’S INTERPRETATION OF THE
UNITED STATES CONSTITUTION.
Page
il
13
see
— WI
THIS COURT’S ATTENTION IS NEEDED TO
END THE NATIONAL ANARCHY ON “THE
TAKING ISSUE.”
THIS COURT’S ATTENTION IS NEEDED TO
END THE NATIONAL ANARCHY ON “THE
COMPENSATION ISSUE.”
THE INTENT OF PALMDALE AND THE
COUNTY TO MAKE A GIFT OF THE SUB-
JECT PROPERTY TO THE AIR FORCE IS
NOT ONLY RELEVANT, IT RENDERS THE
GOVERNMENTAL ACTION UNCONSTITU-
TIONAL UNTIL COMPENSATION IS MADE.
CONCLUSION
19
—jy—
APPENDIX A
OPINION, COURT OF APPEAL, SECOND
APPELLATE DISTRICT, FILED
DECEMBER 7, 1981
APPENDIX B
ORDER, COURT OF APPEAL, SECOND
APPELLATE DISTRICT, FILED
JANUARY 6, 1982
APPENDIX C
PETITION FOR REHEARING DENIED,
JANUARY 6, 1982
APPENDIX D
OPINION, COURT OF APPEAL, SECOND
APPELLATE DISTRICT, FILED
NOVEMBER 25, 1981
APPENDIX E
ORDER MODIFYING OPINION, CER-
TIFICATION FOR PUBLICATION, FILED
DECEMBER 10, 1981
APPENDIX F
PETITION FOR REHEARING DENIED,
DECEMBER 17, 1981
APPENDIX G
ORDER DENYING HEARING AFTER
JUDGMENT BY THE COURT OF AP-
PEAL, FILED FEBRUARY 10, 1982
APPENDIX H
ORDER, HEARING DENIED, CALIFOR-
NIA SUPREME COURT, DATED
FEBRUARY 10, 1982
am You
APPENDIX I
JUDGMENT ON THE PLEADINGS,
SUPERIOR COURT OF LOS ANGELES
COUNTY, FILED SEPTEMBER 12, 1979
APPENDIX J
ORDER OF DISMISSAL OF FIRST
AMENDED COMPLAINT, SUPERIOR
COURT OF LOS ANGELES COUNTY,
FILED NOVEMBER 8, 1979
APPENDIX K
NOTICE OF APPEAL TO THE SUPREME
COURT OF THE UNITED STATES, 2nd
CIVIL NO. 59028, DATED MARCH 5, 1982
APPENDIX L
NOTICE OF APPEAL TO THE SUPREME
COURT OF THE UNITED STATES, 2nd
CIVIL NO. 60960, DATED MARCH 5, 1982
APPENDIX M
PALMDALE CITY ORDINANCE, SEC-
TIONS 32.02, 32.03, 32.04, 32.05
APPENDIX N
LOS ANGELES COUNTY ORDINANCE,
SECTIONS 242, 242.1, 242.2, 242.3
I-1
K-1l
—vi—
TABLE OF AUTHORITIES
Cases
Agins v. Tiburon (1979)
24 Cal.3d 266, 157 Cal.Rptr. 372, 598
P.2d 25, aff’d on other grounds (1980)
447 U.S. 255
Andrus v. Allard (1979)
444 US. 51
Arastra Limited Partnership v. City of Palo
Alto
(N.D. Cal. 1975) 401 F.Supp. 962
Arlington Heights v. Metro. Dev. Corp.
(1977)
429 U.S. 252
Askew v. Gables-by-the-Sea
(Fla. App. 1976) 333 So.2d 56
Brazil v. City of Auburn
(Wash. App. 1979) 598 P.2d 1
Brockett v. Spokane Arcades, Inc. (1981)
___._-;U.S. ___., 70 L.Ed.2d 468
Burrows v. City of Keene
(N.H. 1981) 432 A.2d 15
Charles v. Diamond (1977)
41 N.Y.2d 318, 360 N.E.2d 1295
City of Austin v. Teague
(Tex. 1978) 570 S.W.2d 389
City of Richmond v. United States (1975)
422 U.S. 358
Clifton v. Berry
(Ga. 1979) 259 S.E.2d 35
Page
passim
21
19
10, 11
15, 17, 27
26
26
27
—vii—
Commercial Standard Ins. Co. v. Bank of
America (1976)
57 Cal.App.3d 241, 129 Cal.Rptr. 91 5
Conley v. Gibson (1957)
355 U.S. 41 5, 23
Cordeco Dev. Corp. v. Vazquez
(D. Puerto Rico 1972) 354 F.Supp. 1355 21
Dahl v. City of Palo Alto
(N.D. Cal. 1974) 372 F.Supp. 647 20, 21
Dahlstrom v. United States
(8th Cir. 1956) 228 F.2d 819 9
Davis v. Pima County
(Ariz. App. 1978) 590 P.2d 459
Davis v. Wechsler (1923)
263 U.S. 22 25
Devines v. Maier
(7th Cir. 1981) 665 F.2d 138 10, 20
Dugan v. Rank (1963)
372 U.S. 609 27
Estes v. Texas (1965)
381 U.S. 532 18
Fred F. French Investing Co. v. City of New
York (1976)
39 N.Y.2d 587, 350 N.E.2d 381 26
Fresno v. California (1963)
372 U.S. 627 27
Gilliland v. City of Palmdale 1-3, 9
127 Cal.App.3d 386, 179 Cal.Rptr. 627 11, 13, 17
Gilliland v. County of Los Angeles 1-3, 9
126 Cal.App.3d 610, _.._ Cal. Rptr. 11, 17
Goldblatt v. Town of Hempstead (1962)
369 U.S. 590
—_— =
Gomez v. Toledo (1980)
446 U.S. 635
Griffin v. School Board (1964)
377 U.S. 218
Hamilton v. Conservation Comm’n
(Mass. App. 1981) 425 N.E.2d 358
Helix Corp. v. City of San Diego (1978)
82 Cal.App.3d 932, 147 Cal.Rptr. 683
Hermanson v. Board of County Comm’rs
(Colo. App. 1979) 595 P.2d 694
Hernandez v. City of Lafayette
(Sth Cir. 1981) 643 F.2d 1188 10, 20, 23-15
Hurley v. Kincaid (1932)
285 U.S. 95 27
Inmobiliaria Borinquen, Inc. v. Garcia San-
tiago
(D. Puerto Rico 1969) 295 F.Supp. 203 21
Jacobson v. Tahoe Reg. Plan. Comm.
(9th Cir. 1977) 566 F.2d 1353 23
Kaiser Aetna v. United States (1979)
444 U.S. 164 22
Keystone Associates v. State (1978)
45 N.Y.2d 894, 383 N.E.2d 560 26
20
26
ze 8 & & &
Kmiec v. Town of Spider Lake
(Wis. 1973) 211 N.W.2d 471
Kraft v. Malone
(N.D. 1981) 313 N.W.2d 758
Lake Country Estates v. Tahoe Reg. Plan.
Com. (1979)
440 U.S. 391 23-2°
Lerner v. Town of Islip
(E.D. N.Y. 1967) 272 F.Supp. 664 21
eit
Lomarch Corp. v. City of Englewood
(N.J. 1968) 237 A.2d 881
Lynch v. Household Finance Corp. (1972)
405 U.S. 538
M.J. Brock & Sons, Inc. v. City of Davis
(N.D. Cal. 1975) 401 F.Supp. 354
Mailman Dev. Corp. v. Hollywood
(Fla. App. 1973) 286 So.2d 614
Mondou v. New York, N. H. & H. Ry Co.
(1912)
223 U.S. 1
Monell v. Dept. of Social Services (1978)
436 U.S. 658
Monroe v. Pape (1961)
365 U.S. 167
Moore v. City of East Cleveland (1977)
431 U.S. 494
Moviematic Industries, Inc. v. Dade County
(Fla.App. 1977)349 So.2d 667
Owen v. City of Independence (1980)
445 U.S. 622
Penn. Central Transp. Co. v. City of New
York (1978)
438 U.S. 104
Pennsylvania Coal Co. v. Mahon (1922)
260 U.S. 393
Progress Dev. Corp. v. Mitchell
(7th Cir. 1961) 286 F.2d 222
Rasmussen v. City of Lake Forest
(N.D. Ill. 1975) 404 F.Supp. 148
Reitman v. Mulkey (1967)
387 U.S. 369
21
_xX—
San Diego Gas & Elec. Co. v. City of San
Diego (1981)
450 U.S. 621, 67 L.Ed.2d 551
Sanfilippo v. County of Santa Cruz
(N.D. Cal. 1976) 415 F.Supp. 1340
Santa Fe Land Imp. v. City of Chula Vista
(9th Cir. 1979) 596 F.2d 838
Sawyer v. United States
(M.D. Ga. 1956) 148 F.Supp. 877
Seattle School Dist. No. 1 v. State of Wash.
(9th Cir. 1980) 633 F.2d 1338
Sederquist v. City of Tuburon
(9th Cir. 1978) 590 F.2d 278
Shellburne, Inc. v. New Castle County
(D. Del. 1968) 293 F.Supp. 237
6th Camden Corp. v. Evesham Township
(D. N.J. 1976) 420 F.Supp. 709
State v. Superior Court (1974)
12 Cal.3d 237, 115 Cal.Rptr. 497, 524
P.2d 1281
Stevens v. County of Dutchess
(S.D. N.Y. 1977) 445 F.Supp. 89
Stone v. City of Los Angeles (1975)
51 Cal.App.3d 987, 124 Cal.Rptr. 822
Testa v. Katt (1947)
330 U.S. 386
Tiffany v. Sierra Sands Unified School
District (1980)
103 Cal.App.3d 218, 162 Cal.Rptr. 669
United States v. Causby (1946)
328 U.S. 256
United States v. Gerlach Live Stock Co.
(1950)
339 U.S. 725
7, 10-15
27
-_=
Ventures in Property I v. City of Wichita
(Kan. 1979)
594 P.2d 671
Village of Euciid v. Ambler Realty Co. (1926)
272 U.S. 365
Village of Willoughby Hills v. Corrigan
(Ohio 1972) 278 N.E.2d 658,
cert. den. sub nom.
Chongris v. Corrigan (1972)
409 U.S. 919 :
Wheeler v. City of Pleasant Grove
(Sth Cir. 19881) 664 F.2d 99
Wildwood Mink Ranch v. United States
(D. Minn. 1963) 218 F.Supp. 67
Statutes .
28 U.S.C. § i257(2)
42 U.S.C. § 1983
Texts
Ackerman, Private Property and tie Con-
stitution (1977)
Berger, To Regulate or Not to Regulate — Is
That The Question? Reflections on the Sup-
posed Dilemma Between Environmental Pro-
tection and Private Property Rights (1975)
Berwanger, Recent Developments in Judicial
Relief for Owners of Land Limited to Public
Open Space (1976)
Bonderman, Comment (May 1981) 33 Land
Use Law & Zoning Digest 10
Bosselman, Callies & Banta, The Taking Issue
(1973)
19
10
19
antiias
Hagman, Comment (May 1981) 33 Land Use
Law & Zoning Digest 5
Hagman, Larson & Martin, California Zon-
ing Practice [CEB 1969] § 6.26 at 215
Hagman & Misczynski, Windfalls for
Wipeouts (1978)
Kanner, Comment (May 1981) 33 Land Use
Law & Zoning Digest 8
Kanner, Inverse Condemnation Remedies in
an Era of Uncertainty (Southwestern Legal
Foundation 1980) 1980 Institute on Planning,
Zoning, and Eminent Domain 177
Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of Just
Compensation Law (1967) 80 Harv.L.Rev.
1165
Shedd, Inverse Condemnation: A Lingering
‘Juestion When Challenging Zoning Regula-
tions (1981) 17 Law Notes For the General
Practitioner 103
Tribe, American Constitution Law (1978) at
460
Van Alstyne, Taking or Damaging by Police
Power: The Search for Inverse Condemnation
Criteria (1970) 44 S.Cal.L.Rev. 1
3 Williams, American Land Planning Law
[1975] § 73.34 at 388
Willemsen & Phillips, Down-Zoning and Ex-
clusionary Zoning in California Law (1979) 31
Hastings L.J. 103
Rules
California Rules of Court
Rule 976
10
10
25
10
17
United States Supreme Court
Rule 10(6) 3
United States Constitution
Fifth Amendment 4, 5, 8, 15
Fourteenth Amendment 4, 5, 8, 15
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1981
ROBERT J. GILLILAND, MARY P. FITZ,
JAMES S. GILLILAND, and FRANK M.
GILLILAND,
Petitioners,
vs.
CITY OF PALMDALE and COUNTY OF
LOS ANGELES,
Respondents.
JURISDICTIONAL STATEMENT
THE OPINIONS BELOW
Two opinions were issued by the California Court of
Appeal in related cases. Gilliland v. City of Palmdale
(hereafter, the Palmdale case) was reported at 127
Cal.App.3d 386, 179 Cal.Rptr. 627. A copy is Appendix A.
The California Supreme Court, pursuant to its plenary super-
visory power over published case law (Rule 976, Calif. Rules
of Ct.), ordered the opinion deleted from the official reports
(see de-publication order, Appendix G). Gilliland v. County
of Los Angeles (hereafter, the County case) is reported at 126
Cal.App.3d 610, ___._ Cal.Rptr._._._ . A copy is Appendix
D.
JURISDICTION
This inverse condemnation appeal is brought by the owners
of 33.3 acres of vacant property located near the end of a run-
way at an Air Force base (called Plant 42) in Palmdale,
California.
adi»
Five acres are located within the City of Palmdale, while
the remaining 28.3 acres are located across the street in unin-
corporated territory under the planning and zoning jurisdic-
tion of the County of Los Angeles.
Separate actions were filed against Palmdale and the
County, alleging that the zoning actions of those entities had
deprived the property of any feasible, beneficial use, thus
taking the property without compensation in violation of the
Fifth and Fourteenth Amendments to the United States Con-
stitution. Palmdale and the County had stultified the use of
the property pursuant to an agreement with the United States
Air Force to maintain a clear zone at the end of Plant 42’s
runways.
The property owners sought compensation pursuant to the
United States Constitution and the Civil Rights Act (42
U.S.C. § 1983).
In the County case, the trial court sustained a general
demurrer to the complaint and dismissed the action (App J).
In the Palmdale case, the trial court granted a motion for
judgment on the pleadings 1/, concluding that no taking
could be alleged, and dismissed the action (App I).
On appeal, the California Court of Appeal, Second
District, Division One, affirmed both judgments, concluding
that no taking could be alleged. Additionally, the County
opinion states that no damages could be awarded even if a
taking were proved, in light of the California Supreme
Court’s decision in Agins v. Tiburon (1979) 24 Cal.3d 266,
157 Cal.Rptr. 372, 598 P.2d 25, aff'd on other grounds
(1980) 447 U.S. 255 (App D, p. 8). The Palmdale opinion, on
the other hand, states that Agins’ rejection of a damages
remedy ‘‘. .. flatly contradicts clear precedent of United
States Supreme Court cases .. .”’ (App A, p. 7), and con-
cludes that if a taking were present, compensation would be
appropriate.
1/ Under California law, a motion for judgment on the pleadings is the
functional equivalent of a general demurrer (e.g., Tiffany v. Sierra Sands
Unified School Dist. (1980) 103 Cal. App.3d 218, 222, 162 Cal.Rptr. 669).
fies
The Judgment of the Court of Appeal in the County case
was rendered November 25, 1981 (App D), and certified for
publication December 10, 1981 (App E). A timely Petition
for Rehearing was denied December 17, 1981 (App F).
The Judgment of the Court of Appeal in the Palmdale case
was rendered December 7, 1981 (App A), and certified for
publication January 6, 1982 (App B). A timely Petition for
Rehearing was denied January 6, 1982 (App C).
Timely Petitions for Hearing were filed in both cases in the
California Supreme Court. After extending its time to act,
the California Supreme Court denied the Petitions Feb-
ruary 10, 1982 (App G, H). At the same time, the Palmdale
opinion, which called attention to the conflict between the
California Supreme Court’s Agins opinion and this Court’s
decisions regarding inverse condemnation compensation, was
ordered ‘‘de-published’’ and removed from the official
reports (App G).
Timely Notices of Appeal to this Court were filed March 5,
1982 (App K, L).
Jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§ 1257(2).
Cases sustaining this Court’s jurisdiction on appeal to
review state court judgments concerning regulatory takings
of private propesty without just compensation are: Penn
Central Transp. Co. v. City of New York (1978) 438 U.S.
104; Moore v. City of East Cleveland (1977) 431 U.S. 494;
Goldblatt v. Town of Hempstead (1962) 369 U.S. 590;
Village of Euclid v. Ambler Realty Co. (1926) 272 U.S. 365;
and Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393.
This single jurisdictional statement is filed pursuant to
Rule 10(6), Rules of the United States Supreme Court.
SUGGESTION THAT CONSIDERATION OF
THIS APPEAL BE JOINED WITH THE PETI-
TIGN FOR CERTIORARI IN GILLILAND v.
UNITED STATES, NO. 81-1242.
As noted above, the reason for Palmdale and the County
denying the property owners the ability to use their land was
—_
to preserve it for a clear zone for Air Force Plant 42. At the
hearing on the zone change, the Air Force representatives
convinced Palmdale and the County that use ought to be
denied because of the large number of noisy and dangerous
flights over the subject property. (The representations are
reproduced in Appendix A to the Petition in No. 81-1242, pp.
12-15.)
It was not possible to sue Palmdale, the County and the Air
Force in the same court, as the Air Force could be sued only
in the United States Court of Claims, while Palmdale and the
County could not be sued there.
THIS COURT NOW HAS THE FIRST JUDICIAL OP-
PORTUNITY TO EXAMINE THE EFFECTS OF THE IN-
TERACTION OF ALL THREE GOVERNMEN1 AGEN-
CIES ON THE SUBJECT PROPERTY. The Gillilands and
Mrs. Fitz respectfully ask that the cooperative governmental
efforts which rendered the property useless be examined
together.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Fifth Amendment, United States Constitution:
. nor shall private property be taken for public
use, without just compensation.’’
Fourteenth Amendment, United States Constitution:
“SECTION 1. . nor shall any State deprive
any person of life, liberty, or property, without due
process of law; .
The pertinent County endionnes is reproduced in Appendix
N, and the City ordinance in Appendix M.
RAISING THE FEDERAL QUESTION
The complaints in both cases alleged a taking of the subject
property for public use without compensation, thus depriving
the Gillilands and Mrs. Fitz of their property without com-
pensation and without due process of law, in violation of the
==
Fifth and Fourteenth Amendments. The federal constitu-
tional question was thus raised at the earliest possible time,
and reiterated in every brief filed in the trial court and on
appeal.
STATEMENT OF THE CASE
This appeal arises from the California Court of Appeal’s
affirmance of the dismissal of the property owners’ inverse
condemnation and declaratory relief actions. Thus, the facts
come from the complaints which, for purposes of review, are
taken as true and are liberally construed under both Federal
and California law. 2/
The Gillilands and Mrs. Fitz own 33.3 acres of vacant pro-
perty in the County of Los Angeles at the main entrance to
the Lockheed facility, adjacent to Air Force Plant 42. Five
acres are located in the City of Palmdale, while the remaining
28.3 acres are across the street, in unincorporated territory
subject to the jurisdiction of the County. Air Force Plant 42
is an airport with manufacturing conducted on the premises
by defense contractors. Plant 42 has approximately 3,900
employees. The Lockheed facility at Plant 42 is reputed to
have the largest building ever constructed in California. It
houses 6,000 to 12,000 employees, depending on what pro-
jects are being pursued. The B-1 bomber will be built at Plant
42.
The property is beneath the approach path for Runway 4
and departure path for Runway 22 of Plant 42’s airport. 3/
The owners purchased their property in 1965 and 1967, as
an investment for future use. Since that time, at the request
of the City of Palmdale, the owners have granted easements
to the County and Palmdale to permit the urban, commercial
2/ See Conley v. Gibson (1957) 355 U.S. 41, 47-48; Stevens v. County of
Dutchess (S.D. N.Y. 1977) 445 F.Supp 89, 91; Commercial Standard Ins.
Co. v. Bank of America (1976) 57 Cal.App.3d 241, 129 Cal.Rptr. 91.
3/ All runways have two numerical (compass-oriented) designations.
Thus, if an aircraft departs Plant 42 to the southwest, it is said that Runway
22 is being used. An aircraft landing from the southwest is said to be using
Runway 4. It is the same strip of concrete. The number reveals the direction
of use on the compass (220° and 40°).
—6—
development taking place in the area surrounding the pro-
perty.
The subject property is zoned agricultural (A 2-5), a zone
used by Palmdale and the County at the time of the
property’s purchase as a “‘holding zone.’’ A holding zone is
one which permits virtually no use. Palmdale and the County
restrict use of holding zone land until the area is ripe for
development and Palmdale or the County are satisfied with a
specific plan for its use, at which time a zone change is
enacted to permit the use.
Holding zones are a familiar tool of land planners. For
example, the California continuing education zoning text
notes:
**Hold zoning is usually used in areas in which the
market has as yet caused little development, the
community is not certain what uses eventually to
permit in the area, and it is not planning on making
that decision in the near future. The area may not
be zoned at all, and as a consequence, uses may
appear that would be incompatible with present or
future development. In order to control possible
incompatible uses, the land is zoned, typically for
very unintensive uses, and all other uses are subject
to conditional use permit treatment . . . For exam-
ple, the area may be zoned agricultural, not
because that is planned as a permanent use, but
because that is a convenient and often available
category of unintensive use.’’ (Hagman, Larson &
Martin, California Zoning Practice [CEB 1969]
§ 6.26 at 215-216; emphasis added.)
In his nationally utilized treatise, Professor Williams sum-
marizes the case law on holding zones as follows:
**In these cases, the existence of a holding zone,
designed to delay development for one reason or
another, has been noted in passing, as if it were one
of the more familiar legal devices, and with no sug-
gestion that any serious legal problem is presented.
In some of these cases, a holding zone has been
—
established on the theory that no one could tell
what the future land use was going to be; and so a
large reservoir of vacant land has been put into a
zone where the regulations would tend to
discourage development — but with the under-
standing that, when conditions were right for
development, the land could be transferred into
another and perhaps quite different zone.”’ (3
Williams, American Land Planning Law [1975] §
73.34 at 388; emphasis added.)
**Another group of decisions — some brought
by neighbors and some by developers — has also
involved rezonings for less restrictive use, and has
been met with the casual comment that in any event
the previous zone was merely a holding zone, and
not intended to be taken too seriously.”’ (3
Williams, § 73.34 at 390; emphasis added.)
Indeed, this Court seems no stranger to holding zones, as
the ordinance examined in San Diego Gas & Elec. Co. v. City
of San Diego (1981) 450 U.S. 621, 67 L.Ed.2d 551, was said
to possess ‘‘... an agricultural ‘holding’ category.’’ (450
U.S. at ___, 67 L.Ed.2d at 555.)
In other words, the A 2-5 zone was not placed on the sub-
ject property because the A 2-5 uses were appropriate, but
because they were not, That way the property could be kept
unused until Palmdale and the County approved a specific
rezoning plan.
In 1973, conditions in the general vicinity had made the
subject property ripe for development and the owners applied
for a change from their agricultural/holding zone to a com-
mercial planned development zone.
The property surrounding the area of the subject property
is zoned either M 1-1/2 or M 2-1/2, allowing various kinds of
manufacturing and commercial uses.
In April 1973, the County Board of Supervisors denied the
application as to the 28.3 acres in its jurisdiction.
In May 1973, the Palmdale City Council denied the appli-
cation for the 5 acres in its jurisdiction, rejecting the
athens
Palmdale Planning Commission’s unanimous recommenda-
tion to grant the zone change.
The Air Force mobilized opposition to the owners’ applica-
tions among the defense contractors at Air Force Plant 42,
and convinced Palmdale and the County to keep the property
useless because of its proximity to Air Force Piant 42.
The action of Palmdale and the County was in furtherance
of an agreement with the Air Force that property within one
mile of Plant 42, like the subject property, would be used as
the Air Force wished.
The land remaining in the A 2-5 zone, which includes the
subject property, forms a clear zone at the end of one of
Plant 42’s runways. The Air Force desired that clear zone and
Palmdale and the County provided it.
Thus, by their actions in 1973, Palmdale and the County de
facto changed the zoning of the subject property from
holding to agricultural. It was not a mere refusal to rezone.
Rather, it was an announcement that the property would no
longer be considered as holding zone property. Because it was
at the end of the airport runway, the property would
thereafter be treated as though it were really zoned for
agriculture, for which it is incapable of being used.
Palmdale and the County, by enforcing their agreement to
provide the Air Force with a clear zone, have destroyed the
value of the subject property. 4/
The owners believe that the actions of Palmdale and the
County have taken their property for public use without com-
pensation, in violation of the Fifth and Fourteenth Amend-
ments to the United States Constitution and the Civil Rights
Act (42 U.S.C. § 1983).
The owners acknowledged below that California law pro-
vides no adequate remedy at law under these circumstances
(citing Agins), and prayed for redress under federal law.
4/ It bears note that, while Palmdale and the County insist on maintain-
ing this property as vacant land for an Air Force clear zone, the County’s
Assessor values — and taxes — the property for its highest and best use,
commercial or industrial development. The County Assessor understands
that the holding zone’s agricultural designation was not intended as a real
indicator of the property’s potential use.
din
Palmdale’s motion for judgment on the pleadings ignored
federal law, and sought dismissal on the basis of Agins. The
County’s demurrer did likewise.
The trial court dismissed both actions (App I, J).
In the County case, the Court of Appeal likewise followed
Agins. That court refused to apply a damages remedy to a
federal Civil Rights Act case (App D, p. 8).
In the Palmdale case, a different panel of the Court of
Appeal declined to follow Agins on the remedy issue,
recognizing that this Court’s interpretation of the United
States Constitution must take precedence over contrary inter-
pretations of the California Supreme Court (App A, p. 8). In
both cases, however the Court of Appeal misconstrued the
actions of Palmdale and the County in changing the use of
the A 2-5 zoning in such a way that the property was de facto
down-zoned from a holding zone with developmental poten-
tial to an agricultural zone with no value or use. The Court of
Appeal, instead, dealt only with the facial constitutionality of
the zoning, rather than the constitutionality of the zoning as
applied, which was the gravamen of the owners’ cause of
action (see, e.g., App A, p. 2; App D, p. 13). 5/
5/ The Court of Appeal ignored the complaint’s allegation that the
agricultural zoning rendered the property valueless, and relied on the word-
ing of the zoning ordinance which theoretically permitted some use. But
this is a pleading case. If permitted to go to trial, it could be proved that the
theoretically permitted uses are a sham. For example, the following poten-
tial uses (noted at App A p. 2) are unrealistic — rendering the property not
economically viable — because of the high noise levels and danger from air-
craft crashes: one-family dwellings; animal hospitals, schools and kennels
and veterinary offices; youth camps and other campgrounds; auction
grounds; stock breeding and yards; riding academies and stables. The
adverse impact of aircraft noise on animals is legendary (see, e.g., United
States v. Causby [1946] 328 U.S. 256, [chickens]; Wildwood Mink Ranch v.
United States ([D. Minn. 1963] 218 F.Supp 67 [mink]; Sawyer v. United
States {M.D. Ga. 1956] 148 F.Supp 877 [mule]; Dahlstrom v. United States
[8th Cir. 1956] 228 F.2d 819 [horses}). As for agricultural uses, another
court has noted the unsuitability of this area for agriculture. (Stone v. City
of Los Angeles (1975) 51 Cal.App.3d 987, 992, 124 Cal.Rptr. 822) In any
event, it seems abusive of discretion not to permit leave to amend to so
plead if such factual detail is felt to be needed.
—10—
The California Supreme Court denied hearings in both
cases (App G, H).
In doing so, it sent a clear message to this Court: the
message is that the California Supreme Court has no inten-
tion of conforming with this Court’s interpretation of the
United States Constitution until directly ordered to do so.
Please recall that following Avins, this Court considered
San Diego Gas & Elec. Co. v. City of San Diego (1981) 450
U.S. 621 (hereafter San Diego G & E). Though a majority of
this Court believed the judgment was not final and the appeal
was therefore dismissed, Justice Brennan authored a four-
Justice dissenting opinion on the merits, with which one of
the majority (Justice Rehnquist) indicated agreement, and
with which the lead opinion did not differ. The dissenting
opinion has been widely read by lower courts 6/ and com-
mentators 7/ as expressing this Court’s view of the merits
and indicating the proper result (i.e. compensation) if a case
were brought here in an appropriate procedural posture.
Given this Court’s broad hint in San Diego G & E, one
might have expected the California Supreme Court to take
this opportunity to re-examine its Agins conclusion. After all,
it had not only San Diego G & E for assistance, but the direct
criticism of the New Hampshire Supreme Court and the
analysis of the California Court of Appeal in the Palmdale
case. The New Hampshire Supreme Court bluntly and
unanimously concluded:
**We reject [the Agins] approach out of hand. It
is contrary to our well-established law, which goes
back at least as far as .. . [1872]. It is also, we
6/ E.g., Burrows v. City of Keene (N.H. 1981) 432 A.2d 15, 20; Devines
v. Maier (7th Cir. 1981) 665 F.2d 138, 142; Hernandez v. City of Lafayette
(Sth Cir. 1981) 643 F.2d 1188, 1198-1200; see Gilliland v. City of Palmdale
(1981) 127 Cal.App.3d 386, 392-393, 179 Cal.Rptr. 627, 631.
7/ E.g., Hagman, Comment (May 1981) 33 Land Use Law & Zoning
Digest 5; Kanner, Comment (May 1981) 32 Land Use Law & Zoning Digest
8, 9; Bonderman, Comment (May 1981) 33 Land Use Law & Zoning Digest
10; Shedd, Inverse Condemnation: A Lingering Question When Challeng-
ing Zoning Regulations (1981) 17 Law Notes For the General Practitioner
103, 109.
etiu
believe, in violation of the Constitution of the
United States. See [San Diego G & E) (Brennan, J.,
dissenting and Rehnquist, J., concurring).”’ (Bur-
rows v. City of Keene [N.H. 1981] 432 A.2d 15,
20.)
And the Palmdale opinion candidly acknowledged that,
“‘California’s position {in Agins] flatly contradicts clear
precedent of United States Supreme Court cases . . .”” (127
Cal.App.3d at 392-393, 179 Cal.Rptr. at 631, App A, p. 7.)
After extending its time to consider these cases, the
California Supreme Court apparently decided to thumb its
nose at this Court. While refusing to hear either case, it
ordered the forthrightly critical Palmdale opinion deleted
from the published reports (App G), while leaving the County
opinion as published precedent. Please recall that the County
opinion concludes that Agins bars the recovery of damages in
a land use case brought under the federal Civil Rights Act (42
U.S.C. § 1983) and prosecuted in California courts (App D,
p. 8). This, in spite of the explicit holding of this Court in
Owen v. City of Independence (1980) 445 U.S. 622, 650-651,
that:
**A damages remedy against the offending party
{in a Civil Rights Act case] is a vital component of
any scheme for vindicating cherished constitutional
guarantees, .. .”’
Thus, by its actions in these cases, the California Supreme
Court has reaffirmed its intent to defy this Court’s interpreta-
tion of the United States Constitution. By itself, that shows a
need for this Court’s intervention.
THE QUESTIONS PRESENTED ARE SUBSTANTIAL.
INTRODUCTION
**After all, if a policeman must know the constitu-
tion, then why not a planner?’’ 8/
That common-sense statement by Justice Brennan in San
Diego G & E, apparently expressing the views of at least five
members of this Court, is at the heart of this case. For years,
8/ San Diego G & E, 450 U.S. at 661, fn. 26 (Brennan J., dissenting).
aiticn
the judiciary has protected the constitutional rights of those
suspected of crime by insisting that the police know and obey
the Constitution. Failure of the police to ‘*. . . know the
Constitution .. .”’ can result in awards of damages (e.g.,
Monroe v. Pape [1961] 365 U.S. 167). 9/ In San Diego
G & E, this Court was seen as serving notice that a// govern-
ment employees must ‘‘. . . know the Constitution . . .’” or
face the consequences of their ignorance. 10/ Property
owners deserve no less protection of their Fourteenth
Amendment rights than that afforded accused criminals.
The California courts, however, have failed to heed this
Court’s message. As demonstrated by the decisions below,
the California courts have:
@ created their own interpretation of the
Just Compensation Clause, in preference
to (and in contradiction of) this Court’s
interpretation;
@ used their erroneous constitutional inter-
pretation to reject a damages remedy
under the Civil Rights Act, in contradic-
tion of this Court’s holdings;
@ refused to consider the impact of uncon-
stitutional municipal motivation, in con-
tradiction of this Court’s holdings; and
@ invoked stringent pleading rules to avoid
determining these cases on the merits, in
contradiction of this Court’s holdings.
The issues involved on this appeal have aroused national
interest for at least a decade. The lack of direct guidance
from this Court has permitted California to defy the plain
import of consistent federal law. There is now a sufficient
**track record’’ to know that California’s courts will continue
that defiance without a distinct message from this Court.
9/ Monroe held the individual police officers liable, but immunized the
City. Seventeen years later, in Monell v. Dept.of Social Services (1978) 436
U.S. 658, cities were subjected to Civil Rights Act liability.
10/ See notes 6-7 and accompanying text.
—
Such defiance, when successful, is not ignored by other
courts. When other states see California’s tactic succeed, they
will be tempted to emulate it when the occasion arises.
CALIFORNIA HAS CHOSEN TO DEFY THIS
COURT’S INTERPRETATION OF THE
UNITED STATES CONSTITUTION.
The headline may seem star‘tling. It is nonetheless true.
The California Supreme Court’s explication of the law
governing takings conflicts sharply with this Court’s inter-
pretation of the Constitution. 11/ A comparison of the
California Supreme Court’s decision in Agins with Justice
Brennan’s opinion in San Diego G & E clearly demonstrates
the conflict:
Agins
*“‘We review the avail-
ability of inverse condem-
nation as a land owner’s
remedy when a public agen-
cy has adopted a zoning or-
dinance which substantially
limits use of his property.
We will conclude that
although a land-owner so
aggrieved may challenge
both the constitutionality of
the ordinance and the man-
ner in which it is applied to
his property by seeking to
establish the invalidity of
the ordinance either
through the remedy of
San Diego G & E
‘‘Invalidation unaccom-
panied by payment of
damages would hardly com-
pensate the land owner for
any economic loss suffered
during the time his property
was taken.
**Moreover, mere in-
validation would fall far
short of fulfilling the fun-
damental purpose of the
Just Compensation Clause.
That guarantee was design-
ed to bar the government
from forcing some in-
dividuals to bear burdens
which, in all fairness,
1!/ As the Court of Appeal in the Palmdale case candidly expressed it,
“California’s position [in Agins] flatly contradicts clear precedent of
United States Supreme Court cases.”’ (App A, p. 7) Of course, the price of
such candor was a depublication order from the California Supreme Court
(App G).
ititinn
Agins
declaratory relief or man-
damus, he may not recover
damages on the theory of
inverse condemnation.’’ (24
Cal.3d at 269-270, 598 P.2d
at 26, 157 Cal.Rptr. at 373.)
‘‘In combination, the
need for preserving a degree
of freedom in the land-use
planning function, and the
inhibiting financial force
which inheres in the inverse
condemnation remedy, per-
suade us that on balance
mandamus or declaratory
relief rather than inverse
condemnation is the ap-
propriate relief under the
circumstances.’’ (24 Cal.3d
at 276-277, 598 P.2d at 31,
157 Cal.Rptr. at 378.)
“We are persuaded by
various policy considera-
tions to the view that in-
verse condemnation is an
inappropriate and
undesirable remedy in cases
in which unconstitutional
regulation is alleged.’’ (24
Cal.3d at 275, 598 P.2d at
29, 157 Cal.Rptr. at 376.)
San Diego G & E
should be borne by the
public as a whole. [Cita-
tions.]’’ (450 U.S. at 656.)
**But the applicability of
express constitutional
guarantees is not a matter to
be determined on the basis
of policy judgments made
by the legislative, executive,
or judicial branches. Nor
can the vindication of those
rights depend on the ex-
pense in doing so. [Cita-
tion.]’’ (450 U.S. at
660-661.)
“The only constitutional
requirement is that the lan-
downer must be able mean-
ingfully to challenge a
regulation that allegedly ef-
fects a taking, and recover
just compensation if it does
so.’ (450 U.S. at 660.)
— =
Thus, the difference between California’s interpretation
and this Court’s interpretation is that this Court has called
for enforcement of the Fourteenth Amendment’s incorpora-
tion of the Fifth Amendment in land use cases where there is
substantial impairment of value. The lower federal courts
have followed this Court’s lead (see pp. 20-21 herein). The
California Supreme Court’s decision in Agins, on the other
hand, ignores the Fourteenth Amendment in cases viewed as
**regulation’’ cases, even when all value is destroyed. In other
words, Agins ignores that which Justice Brennan’s opinion in
San Diego G & E concluded was fundamental (450 U.S. at
660):
**The only constitutional requirement is that the
landowner must be able meaningfully to challenge
a regulation that allegedly effects a taking, and
recover just compensation if it does so.’’ (Em-
phasis added.)
The importance of compensation in constitutional cases
was emphasized by this Court in Owen v. City of Inde-
pendence (1980) 445 U.S. 622, 650-651:
**The central aim of the Civil Rights Act was to
provide protection to those persons wronged by the
***[mjisuse of power, possessed by virtue of state
law and made possible only because the wrongdoer
is clothed with the authority of state law.’’’
***s
**A damages remedy against the offending party is
a vital component of any scheme for vindicating
cherished constitutional guarantees, and the
importance of assuring its efficacy is only accen-
tuated when the wrongdoer is the institution that
has been established to protect the very rights it has
transgressed.’’ (Emphasis added.)
In its recent decision in Burrows v. City of Keene (1981)
432 A.2d 15, a unanimous New Hampshire Supreme Court
(speaking through Chief Justice Grimes) compared Agins and
San Diego G & E and found the Agins analysis logically,
morally and constitutionally wanting:
—16—
**We are aware of cases such as Agins v. Tiburon,
24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25
(1979), aff’d on other grounds 447 U.S. 255, 100
S.Ct. 2138, 65 L.Ed.2d 106 (1980), which hold that
a landowner who is the victim of an excessive use
of the police power may not recover damages for
inverse condemnation but must be satisfied with
the remedies of mandamus or declaratory judg-
ment to invalidate the regulation.
**We reject this approach out of hand. It is con-
trary to our well-established law, which goes back
at least as far as Eaton v. B. C. & M. R. R., 51
N.H. 504 (1872). Jt is also, we believe, in violation
of the Constitution of the United States. Seé San
Diego Gas & Elec. Co. v. City of San Diego, 101
S.Ct. at 1294, 1301-08 (Brennan, J., dissenting and
Rehnquist, J., concurring). We agree with Justice
Brennan that it is always open to the governmental
entity involved to rescind or repeal the offending
regulation and thus avoid payment of damages for
inverse condemnation from that point on. /d.
Limiting the landowner to actions which only in-
validate the offending regulation will encourage
municipal planners and other public officials to at-
tempt to throw the burdens accompanying ‘pro-
gress’ upon individual landowners rather than on
the public at large. The allowance of damages for
inverse condemnation during the period of the tak-
ing, however, should encourage such officials to
stay well on the constitutional side of the line, San
Diego Gas & Elec. Co. v. City of San Diego, supra
at 1308 n. 26 (Brennan, J., dissenting), and should
also discourage harassment of property owners by
repeated amendments of zoning regulations and
the enactment of new ones. See id. at 1305-06 n.
22.
**As we have said before, public officials have a
duty to obey the constitution, and they have no
= =
right or legitimate reason to attempt to spare the
public the cost of improving the public condition
by thrusting that expense upon an individual.
[Citations]’’ (Burrows, 432 A.2d at 20; emphasis
added.)
An interesting analysis of Agins appears in Willemsen &
Phillips, Down-Zoning and Exclusionary Zoning in Califor-
nia Law (1979) 31 Hastings L.J. 103. Its insights are intrigu-
ing because one of its authors is identified as a career research
attorney (since 1969) for the California Supreme Court.
Appearing in print six months after the California Supreme
Court decided Agins, it may reveal some of the thinking of
those inside that court.
Willemsen and Phillips open by noting understatedly that:
**. . . California law has taken a unique course,
rendering decisions of other jurisdictions of little
relevance to the California practitioner.’’ (31
Hastings L.J. at 104.)
Later in the article, it is revealed that one of those ‘‘. . .
other jurisdictions . . .”’ whose decisions are deemed “*. . . of
little relevance . . .’’ is the federal judicial system:
**In rejecting the remedy of damages for inverse
condemnation, California courts have charted a
unique course. Their decisions, although resting on
principles of fiscal policy and flexibility in plan-
ning, put California at odds with some of the
federal courts, particularly the Northern District of
California. Conseqrently landowners are likely to
file future inverse cc . ‘emnation actions in federal
instead of state cou .s, thus forcing the federal
courts to face the question of whether to follow
HFH and Agins |{i.e., California law] or to adhere
to federal precedents.’’ (31 Hastings L.J. at 121;
footnotes omitted; emphasis added.)
The concept of ‘‘choosing’’ between precedents of the
California Supreme Court and the federal courts on issues of
federal constitutional law (as though this court and the lower
federal courts were some sort of ‘‘foreign’’ jurisdiction)
likewise appears in the County opinion at bench. There,
antiins
recall, the Court of Appeal chose to apply the California
Agins interpretation of the United States Constitution,
holding that a damages remedy could not be applied by a
California court in a federal Civil Rights Act case (App D,
p. 8). 12/
One would have thought the issue settled no later than
Appomattox.
California’s position is anathema to this Court’s consistent
holdings. For example, in Testa v. Katt (1947) 330 U.S. 386,
this Court reviewed the subject and concluded:
‘(Claflin v. Houseman (1876) 93 U.S. 130]
repudiated the assumption that federal laws can be
considered by the states as though they were laws
emanating from a foreign sovereign. Its teaching is
that the Constitution and the laws passed pursuant
to it are the supreme laws of the land, binding alike
upon states, courts, and the people, ‘anything in
the Constitution or Laws of any State to the con-
trary notwithstanding.’ ... /TJhe obligation of
states to enforce these federal laws is not lessened
by reason of the form in which they are cast or the
remedy which they provide.”’ (330 U.S. at 390-391;
emphasis added; footnote omitted.)
Likewise, in the Second Employers’ Liability Cases (Mon-
dou v. New York, N. H. & H. Ry Co. [1912] 223 U.S. 1), this
Court dismissed the concept that state courts could decline to
enforce a federal statute which did not suit the policies of the
state:
**The suggestion that the act of Congress is not
in harmony with the policy of the State, and
therefore that the courts of the State are free to
decline jurisdiction, is quite inadmissible, because
it presupposes what in legal contemplation does
not exist. When Congress, in the exertion of the
12/ California’s position is reminiscent of the famous ‘‘speech’’ by the
trial judge in Estes v. Texas (1965) 38! U.S. 532 (quoted in the Chief
Justice’s concurring opinion, 381 U.S. at 566) in which he proclaimed that
his oath was to uphold the state constitution, rather than the federal.
= =
power confided to it by the Constitution, adopted
that act, it spoke for all the people and all the
States, and thereby established a policy for all.
That policy is as much the policy of Connecticut as
if the act had emanated from its own legislature,
and should be respected accordingly in the courts
of the State.’’ (223 U.S. at 57; emphasis added.)
Mondou’s reasoning is no less applicable when Constitu-
tional rights are at stake.
Plainly, California has set its courts on a collision course
with this Court’s established precedents. In the words of
Willemsen and Phillips:
**. . . California law has taken a unique course,
rendering decisions of other jurisdictions of little
relevance to the California practitioner.” (31
Hastings L.J. at 104.)
It is recognized that there is a view on this Court that state
judges ‘‘. . . are as capable as are federal judges of enforcing
the Constitution of the United States, and have taken the
same oath todoso.. .”’ (E.g., Brockett v. Spokane Arcades,
Inc. [1981] ____._ U.S. ___, ___, 70 L.Ed.2d 468 [the Chief
Justice, joined by Justices Powell and Rehnquist, dissenting
from a summary affirmance].) Nonetheless, it is now clear
that the California judiciary refuses to enforce the Constitu-
tion in conformity with this Court’s precedents. A quick end
to California’s ‘‘unique’’ unconstitutional foray is deserved.
THIS COURT’S ATTENTION IS NEEDED TO
END THE NATIONAL ANARCHY ON “THE
TAKING ISSUE.”
The problem at bench goes beyond California. A national
debate, which has simmered hotly for more than a decade,
has gone past the boiling point. There has been no lack of
either scholarly discourse or judicial decisionmaking on the
extent to which a government agency may “‘regulate’’ proper-
ty before it crosses the line and ‘‘takes’’ the property. 13/
13/ E.g., Ackerman, Private Property and the Constitution (1977);
Bosselman, Callies & Banta, The Taking Issue (1973); Hagman &
(continued)
—20—
But in attempting to apply the federal constitutional pro-
hibition against taking property without compensation, the
state courts have reached results so widely divergent as to be
called anarchic. Citizens of the several states are subjected to
disparate interpretations of the same federal constitutional
right.
For example, New Jersey has held that even a one year
freeze on land use requires the purchase of a one year option
to purchase the property (Lomarch Corp. v. City of
Englewood [N.J. 1968] 237 A.2d 881), while California finds
an uncompensated five year moratorium constitutionally per-
missible (State v. Superior Court [1974] 12 Cal.3d 237, 115
Cal.Rptr. 497, 524 P.2d 1281).
And Wisconsin has held that zoning agricuiurally
unusable land as agricultural is unconstitutional (Kmiec v.
Town of Spider Lake (Wis. 1973] 211 N.W.2d 471), while
California finds it acceptable (Helix Corp. v. City of San
Diego [1978] 82 Cal.App.3d 932, 147 Cal.Rptr. 683; see also
the cases at bench).
The lower federal courts, on the other hand, have been
generally consistent in concluding that the oppressive use of
the planning, zoning or police powers can be a violation of
the Civil Rights Act and the United States Constitution, re-
quiring compensation. See e.g. :
Wheeler v. City of Pleasant Grove (Sth Cir. 1981)
664 F.2d 99;
Hernandez v. City of LaFayette (Sth Cir. 1981) 643
F.2d 1188;
Devines v. Maier (7th Cir. 1981) 665 F.2d 138;
Dahli v. City of Palo Alto (N.D. Cal. 1974) 372
F.Supp 647;
13/ (continued) Misczynski, Windfalls For Wipeouts (1978); Michelman,
Property, Utility, and Fairness: Comments on the Ethical Foundations of
Just Compensation Law (1967) 80 Harv.L.Rev. 1165; Van Alstyne, Taking
or Damaging by Police Power: The Search for Inverse Condemnation
Criteria (1970) 44 S.Cal.L.Rev. 1; Berger, To Regulate or Not to Regulate
— Is That The Question? Reflections on the Supposed Dilemma Between
Environmental Protection and Private Property Rights (1975) 8
Loy.L.A.L.Rev. 253 [the author is counsel to the Appellants herein}.
— =
Arastra Limited Partnership v. City of Palo Alto
(N.D. Cal. 1975) 401 F.Supp 962 14/;
Cordeco Dev. Corp. v. Vazquez (D. Puerto Rico
1972) 354 F.Supp 1355;
Inmobiliaria Borinquen, Inc. v. Garcia Santiago
(D. Puerto Rico 1969) 295 F.Supp 203;
Shellburne, Inc. v. New Castle County (D. Del.
1968) 293 F.Supp 237, 245;
Sanfilippo v. County of Santa Cruz (N.D. Cal.
1976) 415 F.Supp 1340;
6th Camden Corp. v. Evesham Township (D. N.J.
1976) 420 F.Supp 709;
M. J. Brock & Sons, Inc. v. City of Davis (N.D.
Cal. 1975) 401 F.Supp 354;
Rasmussen v. City of Lake Forest (N.D. Ill. 1975)
404 F.Supp 148;
Lerner v. Town of Islip (E.D. N.Y. 1967) 272
F.Supp 664.
The facts which were held by the lower federal courts to
state causes of action in these cases ranged from large-lot
zoning 15/ (Dahl; Sanfilippo; Rasmussen; Lerner), to
freezes on development (/nmobiliaria; M. J. Brock), to
down-zoning (Shellburne); to open space zoning (Arastra), to
denial of permits or rezoning (Hernandez; Cordeco; Sanfilip-
po; 6th Camden).
The California Supreme Court’s unwillingness to provide
this remedy has led lawyers to file cases involving
unreasonable land use restrictions in United States District
“ourts. That has added an increment of litigation to already
over-burdened District Courts in California.
But some federal courts have felt constrained by this
Court’s view of the abstention doctrine to avoid dealing with
14/ As part of a settlement by which the City paid the property owners
$7,500,000, this opinion was later vacated (417 F Supp 1125). (See Ber-
wanger, Recent Developments in Judicial Relief for Owners of Land
Limited to Public Open Space (1976) 52 L.A. Bar Jour. 196, 197, fn. 4.)
1S/ .e., requiring lots so large that development is not economically
feasible.
aafiinn
land use controversies, 16/ thus relegating the parties to the
uncertain vicissitudes of the state courts. Both systems get
burdened. Land owners are mistreated. And the process of
the law gets deserved criticism.
It is time for more uniform treatment.
In his insightful constitutional law text, Professor Tribe
may have provided an apt beginning in determining what
constitutes a taking:
**Thus a clear case is one that intuitively seems like
a taking in the layman’s sense of that term: a
physical takeover of a distinct entity, with an
accompanying transfer of the legal powers of en-
joyment and exclusion that are typically associated
with rights of property. Moreover, forcing some-
one to stop doing things with his property — telling
him ‘you can keep it, but you can’t use it’ — is in-
distinguishable, in ordinary terms, from grabbing
it and handing it over to someone else. Thus a ‘tak-
ing’ occurs in this ordinary sense when government
controls a person’s use of property so tightly that,
although some uses remain to the owner, the pro-
perty’s value has been virtually destroyed.’ (Tribe,
American Constitutional Law [1978] at 460; em-
phasis added; footnotes omitted.)
Professor Tribe’s description dovetails with this Court’s
earlier comments on takings. (E.g., San Diego G & E, 450
U.S. at ___, 67 L.Ed.2d at 571; Kaiser Aetna v. United
States [1979] 444 U.S. 164, 175; Andrus v. Allard [1979] 444
U.S. 51, 65; Penn Central Transp. Co. v. City of New York
[1978] 438 U.S. 104, 123-124; Agins v. City of Tiburon [1980]
447 U.S. 255, 261, 263.)
Likewise, the simplicity of such a formulation — which
examines the reality of the impact on the property owner —
makes for simplicity in pleading. This also conforms to this
Court’s feelings about Civil Rights Act pleading in particular
16/ E.g., Santa Fe Land Imp. v. City of Chula Vista (%h Cir. 1979) $96
F.2d 838; Sederquist v. City of Tuburon (9th Cir. 1978) $90 F.2d 278.
afin
(Gomez v. Toledo [1980] 446 U.S. 635, 640), and civil
pleading in general (Conley v. Gibson [1957] 355 U.S. 41,
47-48).
On the other hand, the California treatment is exemplified
by the Palmdale opinion which based its dismissal of the
owners’ case on the following quibble:
**Plaintiff claims that the refusal to rezone his
land for commercial development denies him the
‘beneficial’ and ‘only economically feasible’ use of
his land. The legal question, however, is whether it
denies him ‘economically viable use’ [citation]
.,.”” (App A, p. 12; emphasis added.)
With all respect, it is difficult to either understand or ex-
plain the supposed difference between what the complaint
alleges (no ‘‘economically feasible use’’) and what California
says must be alleged (no ‘‘economically viable use’’). Cer-
tainly, if ‘‘viable’’ is the magic word which accomplishes
what ‘“‘feasible’’ does not, it was an abuse of discretion to
deny leave to amend. !7/ The clear intent of the complaint
was to allege that the City’s actions deprived the owners of
the ability to make any use of the property. To end this Civil
Rights case on such quibbling construction seems unworthy.
In land use cases under the Civil Rights Act, this Court and
the lower federal courts have required neither the detail nor
the precision imposed on the owners by the California courts.
For example, in Lake Country Estates v. Tahoe Reg. Plan.
Com. (1979) 440 U.S. 391, the allegations were sparse. (The
allegations may be found in the Court of Appeals’ opinion
sub nom. Jacobson v. Tahoe Reg. Plan. Com. [9h Cir. 1977]
566 F.2d 1353.) The property owners alleged only that the
17/ It may be worth noting that the author of the Court of Appeal’s opin-
ion appears to have used “‘feasible’’ and ‘‘viable’’ interchangeably. See
App A, p. 11, where the plaintiff in the 6th Camden case was said to have
stated a cause of action because the land ‘‘. . . could not feasibly be used
...”*, and where the plaintiff in the Hernandez case was said to have stated
a cause of action because the land ‘*. . . was not feasible for the use permit-
ted . . .””. What happened to the irreplaceable allegation of no viable use?
Why is «ppropriate for the Court of Appeal to interchangeably use these
words but fatal for the owners to do so?
eolihan
zoning on their land had been changed from residential or
commercial to general forest district, recreation district or
conservation reserve and that the rezoning constituted a tak-
ing (566 F.2d at 1357-1358). In fact, the allegations were said
to be so brief and conclusory that there were not even suffi-
cient facts to rebut the presumption of constitutionality
generally accorded governmental actions (566 F.2d at 1359,
fn. 9). Nonetheless, a cause of action was found, both by the
Court of Appeals (566 F.2d at 1359, fn. 9) and this Court
(440 U.S. at 398-400). Moreover, as here, the face of the Lake
Country ordinance purported to permit some uses, to wit:
*‘Generally, the ordinance allowed very limited
residential use, and no tourist, residential or com-
mercial use, of the rezoned land. Other permitted
uses included hiking trails, campgrounds, stables,
recreation camps, skiing facilities, timber growing,
livestock grazing and electrical substations. In
addition, outdoor recreation concessions and
educational facilities were allowed in the ‘Recrea-
tion District.’’’ (S66 F.2d at 1358.)
Notwithstanding the facial allowance of some use, a cause of
action was held stated in Lake Country, contrary to the cases
here.
Moreover, in Hernandez v. City of Lafayette (Sth Cir.
1981) 643 F.2d 1188, which the Court of Appeal holds up as
an example of how to properly plead a taking (App A, p. 13),
the facts were not in the complaint, but in affidavits filed in
opposition to a motion for summary jvdgment (643 F.2d at
1200). Likewise, in 6th Camden Corp. v. Evesham Township
(D. N.J. 1976) 420 F.Supp 709, another case cited by the
Court of Appeal (App A, p. 11), the complaint simply allegéd
that the Township’s actions rendered the property ‘*‘.
sterile and useless . . .”’ (420 F.Supp at 713). Factual detail
was supplied by evidence beyond the complaint’s allegations
(420 F.Supp at 722). In neither of those cases (or any others
of which we are aware) was a plaintiff required or expected to
plead evidentiary facts showing the specific inappropriateness
of each ‘‘use’’ theoretically authorized by the zoning. Rather,
= =
the ultimate fact that the zoning rendered the property near
worthless was sufficient.
Moreover, it must be remembered that the property owners
were pleading federal causes of action. State technicalities of
pleading may not be used to evade federal rights. As this
Court long ago held, speaking through Mr. Justice Holmes:
**Whatever springes the state may set for those who
are endeavoring to assert rights that the state con-
fers, the assertion of Federal rights, when plainly
and reasonably made, is not to be defeated under
the name of local practice.’’ (Davis v. Wechsler
{1923] 263 U.S. 22, 24.)
The property owners seek only the same treatment as the
plaintiffs in cases like Lake Country, Hernandez and 6th
Camden: to have their allegations liberally construed and the
opportunity to substantiate them with evidence. The allega-
tions show the same sort of deprivation of ability to use land.
It is unseemly for differing rules of pleading to determine the
outcome of a federal constitutional decision.
THIS COURT’S ATTENTION IS NEEDED TO
END THE NATIONAL ANARCHY ON “THE
COMPENSATION ISSUE.”’
If the state courts are in disarray in deciding what is a ‘‘tak-
ing’’ under the United States Constitution, they are no less so
in deciding on a remedy. Professor Kanner, surveying the
field two years ago, concluded that, “‘. . . the state courts’
endeavors form a chaotic pattern ...’’ (Kanner, Inverse
Condemnation Remedies in an Era of Uncertainty
[Southwestern Legal Foundation 1980] /980 Institute on
Planning, Zoning, and Eminent Domain 177, 206.) He con-
cludes:
**A survey of the state law on this topic reveals
an amorphous and irreconcilable body of deci-
sions, each purporting to implement the constitu-
tional protection against confiscation.’’ (Kanner at
180.)
Professor Kanner’s conclusion of chaos is borne out by the
cases.
= =
California (Agins) and Arizona (Davis v. Pima County
[Ariz. App. 1978] 590 P.2d 459) reject compensation as a
remedy, opting for invalidation as the only solution.
By contrast, Ohio (Village of Willoughby Hills v. Corrigan
[Ohio 1972} 278 N.E.2d 658, cert. den. sub nom. Chongris v.
Corrigan {1972} 409 U.S. 919), 18/ Georgia (Clifton v. Berry
[Ga. 1979] 259 S.E.2d 35), and Massachusetts Hamilton v.
Conservation Comm’n (Mass. App. 1981] 425 N.E.2d 358)
reject invalidation, holding that compensation is the sole
remedy.
As might be expected, the analysis is not so simple as exam-
ining two sides of a coin. Rather, the states have created a
spectrum of remedial decisions. Five states (Texas, Kansas,
Washington, North Dakota and Colorado) have announced
that either compensation or invalidation may be appropriate,
depending on the circumstances. (City of Austin v. Teague
[Tex. 1978] 570 S.W.2d 389; Ventures in Property I v. City of
Wichita [Kan. 1979] 594 P.2d 671; Brazil v. City of Auburn
[Wash. App. 1979] 598 P.2d 1; Kraft v. Malone [N.D. 1981]
313 N.W.2d 758; Hermanson v. Board of County Comm'rs
[Colo. App. 1979] 595 P.2d 694.)
Florida and New York seem not even internally consistent.
Cases can be found acknowledging the availability of either
compensation or invalidation (Askew v. Gables-by-the-Sea
[Fla. App. 1976] 333 So.2d 56; Moviematic Industries, Inc. v.
Dade County [Fla. App. 1977] 349 So.2d 667; Fred F. French
Investing Co. v. City of New York [1976] 39 N.Y.2d 587, 350
N.E.2d 381; Keystone Associates v. State [1978] 45 N.Y.2d
894, 383 N.E.2d 560), while others refuse to compensate for
patently irreversible damage (Mailman Dev. Corp v.
Hollywood [Fla. App. 1973] 286 So.2d 614; Charles v. Dia-
mond [1977] 41 N.Y.2d 318, 360 N.E.2d 1295).
New Hampshire has adopted the view expressed by Justice
Brennan’s opinion in San Diego G & E, i.e., that damages be
18/ The comments of Justice Douglas, dissenting from the denial of cer-
tiorari, may bear note. He questions the unfettered use of the police power
to achieve eminent domain goals, as well as the appropriate remedy for the
aggrieved property owner.
—-™
awarded for a temporary taking until the state permits
beneficial use (Burrows v. City of Keene [N.H.1981] 432
A.2d 15).
This Court has consistently recognized the availability and
preferability of compensation as a remedy (Hurley v. Kincaid
[1932] 285 U.S. 95; Dugan v. Rank [1963] 372 U.S. 609;
Fresno v. California [1963] 372 U.S. 627; United States v.
Gerlach Live Stock Co. {1950} 339 U.S. 725; Lake Country
Estates v. Tahoe Regional Planning Agency [1979] 440 U.S.
391; Penn Central Transp Co. v. City of New York [1978]
438 U.S. 104; San Diego G & E.)
It is time for synthesis. The vindication of federal constitu-
tional rights cannot be left to such whimsical state court con-
struction. To permit the present situation to remain without
clear guidance from this Court is to deny due process, as well
as equal protection, of law to all land use litigants.
THE INTENT OF PALMDALE AND THE
COUNTY TO MAKE A GIFT OF THE SUB-
JECT PROPERTY TO THE AIR FORCE IS
NOT ONLY RELEVANT, IT RENDERS THE
GOVERNMENTAL ACTION UNCONSTITU-
TIONAL UNTIL COMPENSATION IS MADE.
With the backhand of a footnote (App A, p. 3, fn. 1), the
Court of Appeal swept aside settled decisions of this Court
which permit examination of the government’s motive in
passing legislation. By ignoring the governmental motive, the
Court of Appeal examined only a part of this case, and
disabled itself from examining the totality.
This Court recently stated the rule succinctly:
‘*acts generally lawful may become unlawful when
done to accomplish an unlawful end . . .”” (City of
Richmond v. United States (1975] 422 U.S. 358,
379, quoting with approval.)
To determine whether acts are ‘‘. . . done to accomplish an
unlawful end ...’’, one may consider why the acts were
done, as this Court did in Richmond. See, e.g.:
= =
Arlington Heights v. Metro. Dev. Corp. (1977) 429
U.S. 252, 265-268 [zoning action invalid if uncon-
stitutionally motivated];
Reitman v. Mulkey (1967) 387 U.S. 369, 376, 381,
{statute struck down because unconstitutionally
motivated];
Progress Dev. Corp. v. Mitchell (7th Cir. 1961) 286
F.2d 222, 231 [damages under Civil Rights Act pro-
per if plaintiffs can prove unconstitutional motive
behind condemnation];
Seattle School Dist. No. I v. State of Wash. (9th
Cir. 1980) 633 F.2d 1338, 1342, 1347 [statute struck
down because unconstitutionally motivated]. 19/
That there are cases (see, e.g., App A, p. 3, fn. 1) noting
that courts need not be concerned with governmental motiva-
tion as a general rule, does not negate the rather large excep-
tion discussed above, i.e., a nominally permissible act may be
unlawful if unconstitutionally motivated. Nor does the
general rule require the judiciary to blind itself to impropriety
where the impropriety can be proved. 20/
The complaints allege that the governmental motive was to
take the subject property from the owners and curry favor
with the Air Force 21/ by donating a clear zone. The ques-
tionable constitutionality of such a scheme merits investiga-
tion by trial.
19/ See also Griffin v. School Board (1964) 377 U.S. 218, 231, holding
that even the concurrent existence of a proper basis for the action may not
validate an wnconstitutionally motivated act.
20/ Besides, even examining only what the government did, (rather than
its motives) as the Court of Appeal prefers, what the government did was to
take the owners’ property and give it to the Air Force for a clear zone. And
no one has paid the owners for this taking.
21/ The Air Force is the largest employer other than Lockheed in North-
west Los Angeles County.
—29—
CONCLUSION
This Court has clearly expressed its views on the impor-
tance of protecting private property rights:
**. . . the dichotomy between personal liberties and
property rights is a false one. Property does not
have rights. People have rights. The right to enjoy
property without unlawful deprivation, no less
than the right to speak or the right to travel, is, in
truth a ‘personal’ right, whether the ‘property’ in
question be a welfare check, a home or a savings
account. In fact, a fundamental interdependence
exists between the personal right to liberty and the
personal right in property. Neither could have
meaning without the other.’’ (Lynch v. Household
Finance Corp. [1972] 405 U.S. 538, 552.)
Today private property rights are in jeopardy. The pen-
chant of financially pressed municipalities to attempt to
transmute private into public property, without compensa-
tion, is visible across the nation.
State courts, attempting to reconcile the needs of
municipalities with the rights of private property owners have
developed a chaotic body of law, while purporting to apply
the same federal constitutional prohibition against con-
fiscating private property.
There is anarchy in the determination of what constitutes a
taking.
There is anarchy in the determination of what constitutes a
constitutionally appropriate remedy.
California stands in open defiance of this Court’s constitu-
tional teachings.
This Court’s guidance is sorely needed.
The Gillilands and Mrs. Fitz pray that probabie jurisdic-
tion be noted.
Respectfully submitted,
JERROLD A. FADEM
MICHAEL M. BERGER
FADEM, BERGER & NORTON
Attorneys for the Appellants
—A.j]—
In the Court of Appeal
of the S.ate of California,
Second Appellate District,
Division One.
Robert J. Gilliland,
Plaintiff and Appellant,
vs.
The City of Palmdale, a municipal corporation,
Defendant and Respondent.
2d Civ. No. 59028,
Super. Ct. No. Cl07092.
Filed December 7, 1981.
APPEAL
APPEAL from judgment of the Superior Court of Los
Angeles County. Thomas W. Le Sage, Judge. Affirmed.
Fadem, Berger & Norton, Michael M. Berger, for Appel-
lant.
Kostas & Epson, James S. Kostas, for Respondent.
Plaintiff appeals from a judgment on the pleadings
without leave to amend. Our review of such judgment is
controlled by time-honored rules of law. A motion for
judgment on the pleadings performs the function of a
general demurrer (Tiffany v. Sierra Sands Unified School
Dist. (1980) 103 Cal.App.3d 218, 222): it tests the suffi-
ciency of the complaint to state a cause of action. (/d., at
pp. 224-225.) Like a demurrer it is confined to the face of
the pleading under attack and admits all material and issu-
able facts pleaded. (/d., at p. 225.) Accordingly, we shall
assess the legal adequacy of the following facts drawn from
plaintiff’s complaint and accepted as true.
-
FACTUAL BACKGROUND
In 1965 plaintiff became the owner of five acres of
vacant land in the defendant City of Palmdale (hereafter
the property) which were located in the path of a takeoff
and approach runway at Air Force Plant 42, a joint
civilian-military airport. At the time that plaintiff acquired
the property it was zoned ‘‘A-2."’ According to the
Palmdale zoning ordinance, of which we take judicial
notice (Evid. Code, § 452(b); Baillargeon v. Dept. of Water
and Power (1977) 69 Cal.App.3d 670, 676), the classifica-
tion A-2 was ‘“‘established for use on land suited for
agricultural purposes and other open land uses .. . [t}he
basic intent of this Zone [is] to encourage and support the
development of agricultural pursuits. To further this pur-
pose limitations are imposed on incompatible and conflict-
ing urban uses.”’ (Ord. No. 140, ch. 3, art. 32, zone A-2,
§ 32.01). Permissible uses of the land thus zoned include:
one-family dwellings; animal hospitals, schools and kennels
and veterinary offices; youth camps and other camp
grounds; crops; auction grounds; stock breeding and yards;
riding academies and stables. The A-2 zoning category
functioned as a holding zone, so-called, such that applica-
tions for a zone change from A-2 were subject to par-
ticularly careful and detailed scrutiny in respect of the uses
that would occur under the change.
In January 1973 plaintiff applied to the Palmdale Plan-
ning Commission for a zone change to a ‘‘commercial
planned development’’ zone. On January 19, 1973, the
Planning Commission voted five to zero in favor of plain-
tiff’s requested zone change. On May 11, 1973, plaintiff’s
request was heard before the Palmdale City Council. A
representative of Air Force Plant 42 and a representative of
the civilian contractors at Air Force Plant 42 testified in
opposition to plaintiff’s requested zone change. The City
ee ee
Council voted three to one against plaintiff’s requested
zone change based on the proximity of the property to run-
ways at Air Force Plant 42. As a result of the City’s
refusal to rezone his property as requested, plaintiff suf-
fered damages of more than $325,000.
On April 15, 1975, plaintiff filed in superior court an
‘tamended complaint for inverse condemnation,”’ alleging
all the above facts which we accept as true for purposes of
reviewing the judgment. Plaintiff further alleged that his
private property had ‘‘been unlawfully taken and damaged
for public use without just compensation and without due
process and equal protection of the laws to which fhe was]
entitled by the United States and California
Constitutions.’ The complaint contained additional con-
clusionary allegations which we discount as surplusage. 1/
1/ Paragraphs 13, 15 and 16 alleged, inter alia, that the refusal
was for the purpose of devoting the property to public use as a
clear zone; that plaintiff had been deprived of the beneficial and
only economically feasible use of his property; that the City in-
tended a de facto transformation of the property into public pro-
perty without paying just compensation. We discount the allega-
tions of motive implicit in these paragraphs on the further
ground that “‘. . . the purpose or motive of the city officials in
passing an ordinance is irrelevant to any inquiry concerning the
reasonableness of the ordinance. ... If the conditions justify
the enactment of the ordinance, the motives prompting its enact-
ment are of no consequence.’ (Citation.)’’ (Pinheiro v. County
of Marin (1976) 60 Cal.App.3d 323, 327-328.) Similarly, under
federal law, motive is irrelevant. ‘‘... the Constitution
measures a taking of property not by what a State says, or...
intends, but by what it does.’ (Citations.)’’ (San Diego Gas and
Electric Co. v. San Diego (1981) __. U.S. ___, [67 L.Ed.2d
551, 573] (dis. opn. Brennan, J.).) Thus, even if we accepted
these allegations of motive as true, they would not bear on our
determination of whether the challenged regulation ‘‘took’’
plaintiff’s land.
—A.4—
(Agins v. City of Tiburon (1979) 24 Cal.3d 266, fn.2 (dis.
opn. Clark, J.); Hecton v. People ex. rel Dept. of
Transportation (1976) 58 Cal.App.3d 653, 657; 6th
Camden Corp. v. Evesham Tp., Burlington Cty. (D. N.J.
1976) 420 F.Supp. 709, 720.)
On March 14, 1979, the California Supreme Court
decided Agins v. City of Tiburon, supra, 24 Cal.3d 266,
and held that the remedy of inverse condemnation was not
available to a landowner aggrieved by the negative impact
of a zoning regulation on his property rights. Such a plain-
tiff was limited, the court held, to mandamus or
declaratory relief to redress the government’s excessive ex-
ercise of its police power to regulate land use. On the
plaintiff’s action for declaratory relief, the court held as a
matter of law that no taking of plaintiff’s land had occur-
red through enactment of the zoning regulation in ques-
tion. (/d., at pp. 277-278.)
On July 17 and 18, 1979, the motion of defendant City
of Palmdale for judgment on the pleadings was argued in
the trial court. On July 18, 1979, the court granted defen-
dant’s motion, noting in its minute order, ‘‘The Court,
having reviewed and considered the pleadings and outline
of the evidence as presented by counsel for the plaintiff,
finds on there has been no taking or damaging of proper-
ty.”’
2/ The trial court’s consideration of the ‘‘outline of evidence as
presented by counsel for the plaintiff’’ was obviously impermissible
when deciding the motion for judgment on the pleadings, as the
motion is directed to the face of the pleading. (4 Witkin, Cal. Pro-
cedure (2d ed. 1971) p. 2817.) On review we limit ourselves to ex-
amination of the face of the pleading and affirm if the trial court
was correct within that proper focus. (Cf. Friendly Village Com-
munity Assn. Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d
220, 224.) No doubt the trial court’s consideration of the outline of
(continued)
pa
On June 10, 1980, the United States Supreme Court
decided the appeal of Agins, supra, from the California
Supreme Court and affirmed the holding that the zoning
regulation in question did not take the plaintiffs’ property
without just compensation. (Agins v. Tiburon (1980) 447
U.S. 255.) But because no taking had occurred the court
did ‘‘not cor*ider whether a State may limit the remedies
available to a person whose land has been taken without
just compensation.’’ (/d., at p. 263.)
On June 25, 1981, plaintiff filed his opening brief in this
court, announcing in his introduction, ‘‘This case seeks en-
forcement of rights under the U.S. Constitution (Four-
teenth Amendment) and the federal Civil Rights Act (42
U.S.C. § 1983).””
DISCUSSION OF THE LAW
Notwithstanding plaintiff filed this case six and a half
years ago as a complaint for inverse condemnation, his
characterization of the action on appeal is accurate. The
complaint invokes plaintiff’s rights under the United States
Constitution and specifically alludes to rights protected by
the Fifth and Fourteenth Amendments thereto. All that is
required to bring a claim under the federal Civil Rights Act
(42 U.S.C. § 1983) is an allegation that one has been sub-
jected by any form of state action to the deprivation of any
right secured by the Constitution of the United States, 3/
2/ (continued) evidence pertained to its decision whether to
grant leave to amend, whether plaintiff could cure by amend-
ment the defects on which the motion would be granted.
3/ 42 U.S.C. § 1983 provides: “Every person who, under color
of any statute, ordinance, regulation, custom, or usage, of any
State or Territory ... subjects, or causes to be subjected, any
(continued)
niin
(Gomez v. Toledo (1980) 446 U.S. 635, 640.) There is no
want of federal civil rights cases in which the gravamen of
the claim is a taking of private property without just com-
pensation in violation of the Fifth and Fourteenth Amend-
ments, such as plaintiff has asserted. (See, e.g., Hernandez
v. City of Lafayette (5th Cir. 1981) 643 F.2d 1188; Gorman
Towers, Inc. v. Bogoslavsky (8th Cir. 1980) 626 F.2d 607;
Barbaccia v. County of Santa Clara (N.D. Cal. 1978) 451
F.Supp. 260; Dahil v. City of Palo Alto (N.D. Cal. 1974)
372 F.Supp. 647.) An action under the federal Civil Rights
Act can be brought in state court (Martinez v. California
(1980) 444 U.S. 277; Williams v. Horvath (1976) 16 Cal.3d
834, 837; Brown v. Pitchess (1975) 13 Cal.3d 518, 520-523),
and can be brought against a municipality (Monell v.
Department of Social Services (1978) 436 U.S. 658, 690.)
Altogether we perceive no obstacle to treating this case on
appeal as such an action.
When a federal civil rights action, or other federally
created cause of action, is brought in state court, the vin-
dication of that right cannot be frustrated by state law.
(Williams v. Horvath, supra, 16 Cal.3d at 841.) In matters
of substance the law of the jurisdiction creating the right
will control; in other words, federal substantive case law
should be applied. (Cf. Central Vermont Railway Co. v.
White (1915) 238 U.S. 507, 511.)
Thus, the chief benefit of viewing his complaint in a civil
rights perspective is avoidance of the devastating effect of
the California Supreme Court holding in Agins v. City of
3/ (continued) citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other property proceeding for redress.’’
so
Tiburon, supra, 24 Cal.3d 266. Following Agins the
remedy of inverse condemnation with its imposition of
money damages no longer exists in California law. (/d., at
p. 272.) A zoning regulation, no matter how unreasonable
or severe its impact on a landowner’s property rights, can
never effect a ‘‘taking’’ within the meaning of the Just
Compensation Clause of either the United States or
California Constitutions. It must be regarded as an exces-
sive exercise of the pciice power from which the injured
landowner must seek relief by mandamus or declaratory
action to have it set aside. (/bid.)
California’s position flatly contradicts clear precedent of
United States Supreme Court cases. Although the United
States Supreme Court since the California Agins has twice
on a procedural or technical basis declined to reach the
issue and resolve the conflict (Agins v. Tiburon, supra, 447
U.S. 255 and San Diego Gas and Electric Co. v. San
Diego, (1981) __ U.S. __ [67 L.Ed.2d 551]), Justice Bren-
nan in his dissenting opinion in San Diego Gas and Elec-
tric, joined by three members of the Court, has thoroughly
analyzed it. Reviewing the United States Supreme Court
cases on inverse condemnation, he points out that the
Supreme Court regularly hears cases to settle on the par-
ticular facts whether a taking that triggers payment of just
compensation has been effected by an exercise of the police
power through a zoning ordinance or other land use restric-
tion. (/d., at pp. 572-573.) The court thus clearly assumes
such a possibility. (See, e.g. Penn Central Transportation
Co. v. New York City (1978) 438 U.S. 104; Goldblatt v.
Town of Hempstead (1962) 369 U.S. 590.) Dicta abound in
these cases on the standards by which such a determination
should be made. In Agins, supra, 447 U.S. at 260-261, for
instance, the court stated, “‘[t}he application of a general
zoning law to particular property effects a taking if the
—S
ordinance does not substantially advance legitimate state
interests, see Nectow v. Cambridge, 277 U.S. 183, 188
(1928), or denies an owner economically viable use of his
land, see Penn Central Transp. Co. v. New York City, 438
U.S. 104, 138, n. 36 (1978). The determination that govern-
mental action consiit:*c: 2 taking is, in essence, a deter-
mination that the public at large, rather than a single
owner, must bear the burden of an exercise of state power
in the public interest. Although no precise rule determines
when property has been taken, see Kaiser Aetna v. United
States, 444 U.S. 164 (1979) the question necessarily requires
a weighing of private and public interests.’’
While Justice Brennan’s conclusion — that government
action in the form of a police power regulation can effect a
taking just as surely as eminent domain, and the Constitu-
tion demands then that just compensation be paid —
awaits another vote before it invalidates the California
Supreme Court holding of Agins, supra, there is no ques-
tion that the federal law accepts in theory the remiedy of
inverse condemnation with its imposition of money
damages for a “‘taking’’ effected through a zoning regula-
tion. Plaintiff herein, therefore, is not out of court on a
judgment on the pleadings for the reason that the remedy
he seeks has been abolished in state law.
While plaintiff’s suit remains viable under the Civil
Rights Act as to the remedy it seeks, it is no less suscep-
tible as a civil rights action to judgment on the pleadings
for failure to state a cause of action, or as it is termed in
federal parlance, ‘‘a claim upon which relief can be
granted.’’ (Fed. Rules Civ. Proc., rule 12(b)(6), 28 U.S.C.)
Contrary to plaintiff’s interpretation of the trial court’s
ruling as reflected in his brief arguing for application of
federal law, the wording of the judgment below indicates
the trial court granted the motion because the facts alleged
~~ =
failed to show any ‘“‘taking,’’ not because it failed to apply
federal law. It is immaterial of course on what grounds the
trial court granted judgment on the pleadings if that was
the correct decision. (Apelian v. County of Los Angeles
(1968) 266 Cal.App.2d 550, 554, disapproved on another
point in Sullivan v. County of Los Angeles (i974) 12
Cal.3d 710, 722.) We think it was.
We acknowledge and apply the federal policy that a civil
rights pleading should be liberally construed; that ‘*. . . a §
1983 complaint should not be dismissed unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.
(Citation.)’’ (Shaw v. Briscoe (5th Cir. 1976) 541 F.2d 489,
490, cert. den. 430 U.S. 933.) We acknowledge and are
willing to apply, if this were an appropriate case, the
wisdom of federal ‘‘taking’’ cases according to which there
is no ‘‘set formula to determine where regulation ends and
taking begins’’ (Goldblatt v. Town of Hempstead, supra,
369 U.S. 590, 594); and the determination is one of
reasonableness that entails ‘‘ad hoc, factual inquiries’
(Penn Central Transportation Co. v. New York City,
supra, 438 U.S. 104, 124), resolution of which is inappro-
priate on a motion to dismiss. (M./J. Brock & Sons, Inc. v.
City of Davis, (N.D. Cal. 1975) 401 F.Supp. 354, 358;
Dahl v. City of Palo Alto, (N.D. Cal. 1974) 372 F.Supp.
647, 648.) Even so, plaintiff’s facts, construed as liberally
as possible, indeed taken as true, when evaluated by the
standards that the federal cases have evolved, beyond
doubt could not make out a “‘taking’’ and do not warrant
a trial on the merits.
The crucial features of plaintiff’s situation are that both
at the time that he acquired the property and at the time
that he brought the lawsuit, the property was both located
in the path of the Air Force runway and zoned A-2. The
anfip§Qu-
only intervening government action was the City’s refusal
to rezone on plaintiff’s request to enable him to develop
the property for commercial use. If, as plaintiff interprets
the situation, the City, by permitting only low density
agricultural use of the property, in effect has devoted the
property to the use of the Air Force or to the public as a
clear zone at the end of the Air Force runway, then it had
already done so when he acquired the property. The City
by refusing to rezone has not deprived him of any property
interest that he ever had. Rather, in a more accurate
perspective, the City has refused to give him a greater pro-
perty interest than he acquired.
Plaintiff’s claim of a government taking under these cir-
cumstances is uniquely slim, as far as we can tell from the
cases. The more familiar fact situation, in which a motion
for judgment on the pleadings or to dismiss has been
denied, presents the affirmative enactment of a zoning
change or the adoption of a general plan by the govern-
ment entity which limits the plaintiff’s economic exploita-
tion of the property affected. (See, e.g., Sanfilippo v. City
of Santa Cruz (N.D. Cal. 1976) 415 F.Supp. 1340 [motion
to dismiss denied when plaintiffs alleged that zoning of
their land was changed from a residential classification per-
mitting one residence per 2.5 acres to a category permitting
one residence per 100 acres and plaintiffs’ subsequent
application for rezoning and approval of a planned unit
development was denied]; M.J. Brock & Sons v. City of
Davis, supra, 401 F.Supp. 354 [motion to dismiss denied
when plaintiff pleaded misleading and encouraging actions
by defendants regarding plaintiff’s development plans
followed by a downzoning from high density residential to
agricultural to a total ban on construction].)
In the few cases where the nature of the alleged
**taking’’ has been the refusal to rezone land that remained
—All—
zoned as it was when plaintiff acquired it, such as plaintiff
has asserted herein, there were additional circumstances
before the court that justified not disposing of the case
without trial. In 6th Camden Corp. v. Evesham Tp., Bur-
lington Cty., supra, 420 F.Supp. 709, plaintiff acquired 20
acres, 17.9 of which were zoned for business and 2.1 of
which, landlocked with the 17.9, were zoned residential.
Plaintiff planned to construct a shopping center on the
entire acreage, but defendants refused to rezone the 2.1.
Plaintiff claimed the 2.1 had been rendered useless and
unconstitutionally ‘‘taken’’ by the zoning for residential
use. The court denied a motion to dismiss, even though
aware that a mere diminution in value would not prove a
‘*taking.”’ The court took judicial notice of a state court
opinion that the 2.1 acres could not feasibly be used for
the permitted use. Similarly in Hernandez v. City of
Lafayette, supra, 643 F.2d 1188, plaintiff’s land had been
zoned single family residential for ten years when he
requested rezoning to a business or multi-family residential
use. The Court of Appeals, reversing a summary judgment
erroneously granted on the defendants’ claim of immunity,
noted that there were genuine issues of material fact
whether the refusal to rezone constituted a taking because
o! summary judgment evidence that the land was not feasi-
ble for the use permitted (adjacent to sewage treatment,
flood plain extending across parts of it) and because of
questions of good faith in defendants’ processing of plain-
tiff’s rezoning application. (/d., at p. 1200.)
In the instant case there is no allegation that plaintiff’s
land is not suited to the uses which are permitted, nor any
allegation of governmental action beyond the straightfor-
ward adherence to the agricultural zoning which came with
the property. When this modest governmental action,
which has deprived plaintiff if not of his property at least
of his profit in the amount of $325,000, is measured
—A-12—
against the criteria of a ‘“‘taking’’ enunciated by the
Supreme Court and that applied by the lower federal
courts, it appears ‘‘ ‘to a certainty that plaintiff is entitled
to no relief under any state of facts which could be proved
in support of the claim.’ [Citations].’’ (6th Camden Corp,
v. Evesham Tp., Burlington Cty., supra, 420 F.Supp. 709,
720, emphasis omitted.)
The criteria are two: ‘“‘... if the ordinance does not
substantially advance legitimate state interests, [citation] or
denies an owner economically viable use of his land [cita-
tion].’’ (Agins v. Tiburon, supra, 447 U.S. 255, 260.) It is
plaintiff’s burden to prove that the ordinance meets these
criteria if a ‘‘taking’’ by the ordinance is to be found. This
is a heavy burden in view of the presumption of validity
that attaches to the exercise of the public zoning
authorities. (See Burns v. City of Des Peres (8th Cir. 1976)
534 F.2d 103, 108, cert. den. 429 U.S. 861.)
The interests of the City of Palmdale in the health and
welfare of its citizens would appear to be well served by
maintaining open land and low density agricultural land
uses in the entire vicinity of the airport and especially in
the direct path of the planes’ takeoff and approach where
plaintiff’s property is situated. There being no allegations
by plaintiff to the contrary, we find the A-2 zoning of
plaintiff’s land to be a reasonable exercise of the police
power to protect the community from the excessive noise,
air pollution and abcve average safety hazards that attend
the concentration of air traffic in the zoned area.
Plaintiff claims that the refusal to rezone his land for
commercial development denies him the ‘‘beneficial’’ and
*‘only economically feasible’’ use of his land. The lega!
question, however, is whether it denies him ‘‘economically
viable use’’ (Agins, supra, 447 U.S. 255, 260) within the
meaning of that concept as developed in the federal cases.
—A-13—
It is well established that a mere ‘‘diminution in value’’
does not amount to such a denial. (Goldblatt v. Town of
Hempstead, supra, 369 U.S. 590, 594; Hadacheck v. Sebas-
tian (1915) 239 U.S. 394, 408-409 [diminution from
$800,000 to $60,000 upheld].) Moreover, ‘‘... the mere
fact that the regulation deprives the property owner of the
most profitable use of his property is not necessarily
enough. . . .”” (United States v. Central Eureka Mining Co.
(1958) 357 U.S. 155, 168.) Indeed, ‘‘[flor there to be a tak-
ing the landowner must show he has been deprived of all
reasonable uses of his land’’ (C.F. Lytle Co. v. Clark (10th
Cir. 1974) 491 F.2d 834, 838); that it has been rendered
valueless. (Steel Hill Development, Inc. v. Town of San-
bornton (ist Cir. 1972) 469 F.2d 956, 963, cert. den. 414
U.S. 932.)
Whatever conclusions plaintiff may have alleged in his
complaint, he has not alleged facts that show that the A-2
zoning denies him all reasonable or ‘‘economically viable’’
uses, as did the plaintiff in Hernandez v. City of Lafayette,
supra, 643 F.2d 1188; he has not alleged that the land is
not suited to the uses for which it is zoned. The ordinance
permits any number of uses, such as crops, livestock,
animal facilities, which are not only reasonable but
valuable and essential to a healthy, diversified community
economy.
As analyzed by the standards of the federal ‘‘taking’’
cases, the A-2 zoning of plaintiff’s land does not deprive
him of the property rights protected in the Fifth and Four-
teenth Amendments to the United States Constitution. No
set of facts that plaintiff could prove would entitle him to
relief under the federal Civil Rights Act.
—A-14—
The judgment on the pleadings without leave to amend is
affirmed.
NOT FOR PUBLICATION.
JAKES, J.*
We concur:
SPENCER, P. J.
DALSIMER, J.
* Assigned by the Chairperson of the Judicial Council.
In the Court of Appeal
of the State of California,
Second Appellate District,
Division One.
Robert J. Gilliland,
Plaintiff and Appellant,
vs.
The City of Palmdale, a municipal corporation,
Defendant and Respondent.
2d Civ No. 59028,
Super Ct. No. Cl07092.
Filed January 6, 1982.
ORDER
THE COURT: The unpublished opinion in this case hav-
ing been filed on December 7, 1981, and request for cer-
tification for publication having been made,
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in subdivision (b) of
rule 976 of the California Rules of Court; and
ORDERED that the words ‘‘NOT TO BE
PUBLISHED” appearing on page 1 of said opinion be
deleted, and the opinion herein be published in the Official
Records.
oY
GILLILAND vs. CITY OF PALMDALE
Los Angeles, California,
January 6, 1982,
No. 59028.
THE COURT:
Petition for Rehearing Denied.
ee
In the Court of Appeal
of the State of California,
Second Appellate District,
Division One.
Frank M. Gilliland, Jr., et al.,
Plaintiffs and Appellants,
Vv.
County of Los Angeles,
Defendant and Respondent.
2 Civ. No. 60960
(Super. Ct. No. C 107093).
Filed November 25, 1981.
APPEAL
APPEAL from a judgment of the Superior Court of Los
Angeles County. Alexander R. Early III, Judge. Affirmed.
Fadem, Berger & Norton and Michael M. Berger for
Plaintiffs and Appellants.
John H. Larson, County Counsel, and Paul T. Hanson,
Deputy County Counsel, for Defendant and Respondent.
Plaintiffs Frank, James and Robert Gilliland appeal an
order of dismissal entered after the trial court sustained
without leave the general demurrer of defendant County of
Los Angeles (hereinafter referred to as County) to their
first amended complaint.
olin
FACTS
The facts alleged by plaintiffs in their first amended
complaint for inverse condemnation (with a prayer for
declaratory relief and injunction) must on this appeal be
taken as true. Plaintiffs in their first amended complaint
filed September 26, 1979, allege, in substance, as follows:
That the Gillilands are and for seven years have been
owners of Lots 41, 60 and 61 of Tract 7670 of Los Angeles
County comprising 30 acres of vacant land; that the subject
property being situated in unincorporated county territory
is within the zoning and planning jurisdiction of the
County; that the property is and at all times relevant has
been zoned A2-5, an agricultural zone which permits two
single family residences for each five acres of land; that
A2-5 is used by the County as a “‘holding zone’”’ in which
the County holds the land to the minimal use permitted by
the zoning by withholding zone changes for a proposed
new use when the owner comes to the County for a permit
to put his land to its highest and best use ‘‘unless the
County approves the specific proposed land use, site
utilization and sometimes aesthetics of the proposed use to
be made of the land’’; that real property taxes of the sub-
ject property from the time of its purchase in 1967 through
the 1972-1973 tax year increased 600 percent due to
increased commercial and industrial development in the
surrounding area; and that as a further result of this
development the Gillilands on request granted easements
and dedicated portions of the subject property for purposes
such as street widening, curbing and utilities.
Plaintiffs allege further that in February 1973 they ap-
plied to the County Regional Planning Commission for a
zoning change of the subject property to CPD, a commer-
cial planned development zone; that this request was on
etn.
February 20, 1973, denied on the stated grounds that the
property lies within the primary impact area of the pro-
posed Palmdale Intercontinental Airport and that plaintiffs
did not adequately demonstrate need for additional com-
mercial zoning in the area; that the Gillilands appealed this
decision to the County Board of Supervisors (hereinafter
the Board); that on April 30, 1973, the Board heard
testimony opposing the requested zone change from
representatives of Air Force Plant 42 and from aircraft
companies with facilities in the adjacent area, namely
Lockheed, McDonnell Douglas, Rockwell International,
and Northrop; that Air Force Plant 42 is an airport on
which commercial manufacturing is conducted including
assembly of Lockheed L 1011; and that the Board denied
the Gillilands’ request for a zone change based on
testimony that the property is within an area that receives
noise of 100 db(A) or more from Air Force Plant 42.
Plaintiffs in addition allege that by reason of the
County’s refusal to rezone, the Gillilands’ private property
has been unlawfuily taken for public use without just
compensation and without due process and equal protec-
tion of law under the federal and state Constitutions; that
as the result of the refusal to permit commercial use the
Gillialnds were deprived of beneficial use, e.g., the use, en-
joyment and right to develop and sell the subject property;
that plaintiffs are informed and believe that the acts of the
County were intended to stultify the lawful use of the
Gillilands’ land, to reduc: its value and to render it un-
saleable and unusable for any reasonable private use and to
accomplish a de facto transformation of the subject land
into public property without payment of just compensa-
tion; that the conduct of the County was unreasonable,
unlawful, arbitrary and discriminatory; that the Gillilands
have been damaged thereby in amount in excess of
aii
$825,000; that prior to filing this action the plaintiffs filed
a claim with the County which was rejected.
Plaintiffs allege further that the County took the plain-
tiffs’ property to provide space for the approach and
departure of jet aircraft to and from Air Force Plant 42;
that this impressed the land with a servitude for airport use
in furtherance of the Couniy’s determination of its own
best interest in keeping Air Force Plant 42 operating in the
County; that the County ‘‘took the use of the Gilliland’s
property by the agreement between the County and the
U.S.”’ and placed the use of the Gillilands’ property in the
United States; that by reason of the foregoing the County’s
zoning ordinance is invalid as applied to the Gillilands’
property; that plaintiffs have no adequate remedy at law
because of Agins v. City of Torrance [sic] (1979) 23 Cal.3d
605; and that plaintiffs were deprived of their property
without just compensation or due process of law in viola-
tion of the Fifth and Fourteenth Amendments to the
United States Constitution and the Federal Civil Rights Act
(42 U.S.C. § 1983).
Plaintiffs on the basis of these allegations sought just
compensation for the taking, damages under the Federal
Civil Rights Act, declaratory judgment and injunctive relief
invalidating the County’s zoning ordinance as applied to
the subject property and costs and expenses of litigation in-
cluding attorneys’ fees. Defendant County filed a general
demurrer which was sustained by the trial court and plain-
tiffs have appealed.
ISSUE
Plaintiffs on appeal contend that the trial court erred in
failing to apply applicable federal law and therefore sus-
taining the demurrer and dismissing their action.
= ve
DISCUSSION
The Gillilands contend that the trial court disregarded
the legal authority of federal cases when it sustained the
County’s demurrer. It is well established that enactment of
any general measure which purports to zone or rezone pro-
perty is a legislative act. (Arnel Development Co. v. City of
Costa Mesa (1980) 28 Cal.3d 511, 516; San Diego Bidg.
Contractors Assn. v. City Council (1974) 13 Cal.3d 205.)
The application of this principle has been held, in the case
of a rezoning, not to constitute a denial of due process
under the United States and California Constitutions.
(Arnel Development Co. v. City of Costa Mesa, supra, 28
Cal.3d at p. 519.) California views zoning ordinances as
legislative while variances and subdivision map approvals
are adjudicative. Therefore, adequate protection under
state and federal constitutional requirements is fulfilled
when zoning is enacted by the city council by the provi-
sions for the landowner to have notice and hearing. When
zoning is enacted by initiative, these requirements are
fulfilled by the equal opportunities of those favoring and
opposing the zoning tosbe heard by the electorate. Those
affected by the zoning or rezoning also enjoy the option to
obtain administrative or judicial relief in the event the zon-
ing restriction produces arbitrary or capricious results.
In the event hardship is occasioned by zoning restrictions
administrative relief is potentially available. (/d., at p. 520).
The landowner has ‘‘[t}he right to seek judicial invalidation
of zoning which is arbitrary or unreasonable (see Hamer v.
Town of Ross (1963) 59 Cal.2d 776, 781 [.. .]), which
bears no reasonable relationship to the regional welfare (see
Associated Home Builders etc., Inc. v. City of Livermore,
supra, 18 Cal.3d 582, 609-610), or which deprives them of
substantially all use of their land (see Agins v. City of
eitiin
Tiburon (1979) 24 Cal.3d 266, 273 [. . .], affd. (1980) ___
U.S. __. [65 L.Ed.2d 106, ...]). ...’’ (Arnel Develop-
ment Co. v. City of Costa Mesa, supra, 28 Cal.3d at p.
$21.)
Nonetheless zoning regulations have traditionally been
sustained against constitutional attacks. (See, e.g., Euclid
v. Ambler (1926) 272 U.S. 365, 386.) The California
Supreme Court has previously held that inverse condemna-
tion does not lie in zoning actions in which it is alleged that
the market value of property is reduced. (See HFH, Ltd. v.
Superior Court (1975) 15 Cal.3d 508.)
Therefore, the enactment by a city of a zoning ordinance
reducing the density of approved development on an
owner’s land, does not constitute a taking without just
compensation in violation of the Fifth and Fourteenth
Amendments which would support an action in inverse
condemnation. (Agins v. Tiburon (1980) 447 U.S. 255.)
The United States Supreme Court in Agins affirmed the
holding of the California Supreme Court that the zoning
ordinance on its face did not constitute a taking without
just compensation (Agins v. City of Tiburon (1979) 24
Cal.3d 266). The California decision in Agins held that a
landowner who challenges the constitutionality of an ordin-
ance may not sue in inverse condemnation and thereby
transmute an excessive use of the police power into a
lawful taking for which compensation in eminent domain is
required. (See also the discussion relative to monetary com-
pensation in San Diego Gas & Electric Co. v. San Diego
(Mar. 24, 1981)* ____ U.S. ___.)
In the case at bench, just as in Agins, the zoning or-
dinance does not on its face take plaintiffs’ property
without just compensation. The Gillilands do not allege
* Advance Report Citation: 49 U.S.L.Week 4317.
—f-)-7—
that the ordinance on its face deprives them of subtantially
all use of the land. It is clear from a reading of the ordin-
ance describing A2-5 zoning that there are many uses to
which the land may be put in addition to residential use.
The specific zoning regulations here at issue constitute
exercise of the city’s police power to protect local residents
from the adverse effects of urbanization in specifying low
density where the noise level is high. (See, e.g., Agins v.
Tiburon, supra, 447 U.S. 255, 261.) Although this is the
result of the proximity of the airport, this exercise of the
police power does not constitute a taking compensable in
damages.
In any event, in California the remedy of inverse con-
demnation is not available in these circumstances and
declaratory relief or mandamus is the sole means of relief.
We note that here, just as in Agins, the Gillilands do not
allege that they have submitted to the County a plan to use
or to improve their property according to the manner per-
mitted by zoning regulations; or that such a plan has been
rejected. Consequently, there is as yet apparently no cir-
cumstance which has generated a concrete controversy
regarding the application of the specific zoning provisions.
(Agins v. Tiburon, supra, 447 U.S. at p. 260.) In view of
this circumstance, there is no ground for declaratory relief.
By a parity of logic, mandamus has not been effectively
pleaded by the Gillilands since they allege that they sought
a zone change rather than a building permit or variance or
conditional use permit. Since zoning, as we have pointed
out, is a legislative act, mandamus is not an appropriate
remedy in the case at bench. (Toso v. City of Santa Bar-
bara (1980) 101 Cal.App.3d 934, 942; City Council of
Santa Barbara v. Superior Court (1960) 179 Cal.App.2d
389, 396-399.)
ttn
Finally, since the ordinance is constitutional on its face
and there is no allegation of a threatened harmful act by
the County, the complaint does not allege facts which
would support an injunction.
The Gillilands in their brief concede that they have no
remedy at law under these circumstances by virtue of the
legal principles enumerated in Agins which limit their
remedies. They have, therefore, sought to set forth a claim
for damages under the federal Civil Rights Act (42 U.S.C.
§ 1983). That statute, in substance, merely establishes that
a remedy is available when any person, under color of state
law, deprives the complaining party of rights, privileges, or
immunities secured by federal law. The right to just com-
pensation for a governmental taking of private property
arises not from the federal Civil Rights Act but from the
protections of the Fifth and Fourteenth Amendments.
However, the California Supreme Court in Agins held that
monetary damages constituted an inappropriate remedy for
an alleged taking which was the result of local land-use
regulation expressing concern with the chilling effect such
awards might have on the proper exercise of the police
power (Agins v. City of Tiburon, supra, 24 Cal.3d 266,
276-277.) In view of that decision, the remedy of monetary
damages would be unavailable in any event, whether the
action were brought in inverse condemnation or under the
federal Civil Rights Act. Since it does not appear that there
was any taking in this case, the distinction is immaterial.
Ultimately, the Gillilands fail to allege facts which con-
stitute an actual taking of property. An owner of
undeveloped land, such as the acreage in the case at bench,
has no vested right in existing zoning. (Avco Community
Developers, Inc. v. South Coast Regional Co. (1976) 17
Cal.3d 785, 791.) A fortiori, the owner can have no vested
ali Din
right in more valuable zoning which he may have anti-
cipated in the future and which would be different from
that in effect at the time he became the owner. (HFH, Ltd.
v. Superior Court, supra, 15 Cal.3d 508, 516.) There is fur-
thermore, no right to have real property zoned for its
highest and best use. (/bid.) The allegations that represen-
tatives of the U.S. Air Force and aircraft companies with
facilities in the adjacent area testified opposing the re-
quested zone change contributes nothing with respect to the
causes of action the Gillilands attempt to state since
neighboring landowners are entitled to present their views
at a hearing on rezoning. (See N.B.H. Land Co. v. United
States (Ct. Cl. 1978) 576 F.2d 317, 318-319.)
In summary, the Gillilands essentially allege that their
property would have a higher monetary value if it were
rezoned commercial. Such circumstances are insufficient to
support a cause of action for a zoning change. (Village of
Euclid v. Ambler Realty Co. (1926) 272 U.S. 365, 384-385.)
DISPOSITION
The judgment (order of dismissal) is affirmed.
HANSON (Thaxton), J.
We concur:
SPENCER, P.J.
LILLIE, J.
NOT TO BE PUBLISHED
ey vo
In the Court of Appeal
of the State of California,
Second Appellate District,
Division One.
Frank M. Gilliland, Jr., et al.,
Plaintiffs and Appellants,
vs.
County of Los Angeles,
Defendant and Respondent.
2 Civ. No. 60960,
Super. Ct. No.107093
Filed December 10, 1981.
ORDER MODIFYING OPINION
CERTIFICATION FOR PUBLICATION
THE COURT: It is ordered that the opinion filed herein
on November 25, 1981, be modified in the following par-
ticular: At the end of the fifth line on page 9, add as foot-
note 1, the following:
Sections 120.18, 233.6, 242, 242.2, 242.3, 261.9
and 262 of the zoning ordinances of Los Angeles
County, Ordinance No. 1494, were attached as
Exhibits 1 and 2 to County’s brief on appeal.
Deputy County Counsel’s written motion for this
court to take judicial notice of the foregoing sec-
tions under California Evide. ze Code section
452, subdivision (b), was granted in open court
during oral argument on November 24, 1981.
atitin
The opinion in the above entitled matter filed on
November 25, 1981, was not certified for publication in the
Official Reports.
For good cause it now appears that the opinion should
be published in the Official Reports and it is so ordered.
ides
GILLILAND vs. COUNTY OF L.A.
Los Angeles, California,
December 17, 1981,
No. 60960.
Petition for Rehearing Denied.
eit
In the
Supreme Court of the
State of California,
En Bank.
Gilliland
vs.
The City of Palmdale, etc.,
2d District,
Division 1,
Civil No. 59028.
ORDER DENYING HEARING
AFTER JUDGMENT BY THE
COURT OF APPEAL
Filed February 10, 1982.
Appellant’s petition for hearing DENIED.
The Reporter of Decisions is directed not to publish in
the Official Reports the opinion in the above entitled cause
filed December 7, 1981 and appearing at 127 Cal.App.3d
26. (Cal. Const., Art., VI, section 14; Rule 976, Cal.
Rules of Court.) Bird, C.J., is of the view that the opinion
should remain published.
eiiitie:
CLERK’S OFFICE, SUPREME COURT
4250 State Building
SAN FRANCISCO, CALIFORNIA 94102
Feb 10, 1982
I have this day filed Order
HEARING DENIED
In re: 2 Civ. No. 60960 Frank M. Gilliland, Jr. vs.
County of Los Angeles
Respectfully,
Clerk
In the Superior Court
of the State of California
for the County of Los Angeles.
Robert J. Gilliland,
Plaintiff,
vs.
The City of Palmdale,
Defendant
Case No. C 107 092.
Filed September 12, 1979.
JUDGMENT ON THE PLEADINGS
The motion of Defendant for a judgment on the
pleadings came on regularly for hearing on July 18, 1979.
Jerrold A. Fadem appeared as counsel for Plaintiff, and A.
Donald Long appeared as counsel for Defendant. After
said hearing a minute order was entered granting said
motion without leave to amend. The Court having reviewed
and considered the pleadings and outline of evidence as
presented by counsel for Plaintiff, rules that there has been
no taking or damaging of Plaintiff’s property.
WHEREFORE, IT IS ORDERED, ADJUDGED AND
DECREED that Plaintiff take nothing and that Defendant
not recover its costs herein.
Dated: Sept. 12, 1979
/S/ Thomas W. LeSage
Judge of the Superior Court
a Se
In the Superior Court of California,
County of Los Angeles.
Frank M. Gilliland, Jr., et al,
Plaintiffs,
vs.
County of Los Angeles, et al.,
Defendants.
Case No. C-107093.
Filed November 8, 1979.
ORDER OF DISMISSAL OF FIRST
AMENDED COMPLAINT
Good cause appearing therefor, the above entitled action
is hereby dismissed under the provisions of Section 583-c of
the Code of Civil Procedure as to the First Amended Com-
plaint.
Dated: Nov. 8, 1979
/S/ A. E. Early
Judge
~
IN THE COURT OF APPEAL
SECOND APPELLATE DISTRICT
STATE OF CALIFORNIA
2nd Civil No. 59028
Filed March 5, 1982
ROBERT J. GILLILAND,
Plaintiff and APPELLANT,
vs.
THE CITY OF PALMDALE, a municipal corporation,
Defendant and RESPONDENT.
NOTICE OF APPEAL TO THE
SUPREME CGURT OF THE
UNITED STATES
Appeal From Superior Court of Los Angeles County
Hon. Thomas W. LeSage
Notice is hereby given that Appellant Robert Gilliland
hereby appeals to the Supreme Court of the United States
from the decision of the California Court of Appeal
entered in this action on December 7, 1981 and as to which
the California Supreme Court denied hearing on Febru-
ary 10, 1982.
This appeal is taken pursuant to 28 USC §1257(2).
FADEM, BERGER & NORTON
MICHAEL M. BERGER
Attorneys for Appellant
ait in
PROOF OF SERVICE
STATE OF CALIFORNIA )
>» &
COUNTY OF LOS ANGELES )
I am a citizen of the United States and a resident of the
county aforesaid. | am over the age of 18 years and not a
party to the above entitled action; my business address is
501 Santa Monica Boulevard, Santa Monica, California.
On March 5, 1982 I served the within NOTICE OF AP-
PEAL TO THE SUPREME COURT OF THE UNITED
STATES on the interested parties in said action by placing
a true copy thereof in a sealed envelope with postage
thereon fully prepaid in the United States mail at Santa
Monica, California addressed as follows:
James S. Kostas
Kostas & Epson
44540 North 10th Street
Lancaster, CA 93534
Clerk, California Supreme Court
4250 State Building
455 Golden Gate Avenue
San Francisco, CA 91401
Superior Court for the County of Los Angeles
For the Hon. Alexander Early, III
111 North Hill Street
Los Angeles, CA 90012
All parties requ. to be served have been served.
I declare under penalty of perjury that the foregoing is
true and correct. Executed on this Sth day of March 1982
at Santa Monica, California.
JACQUELYNN TOLLEFSON
a s
IN THE COURT OF APPEAL
SECOND APPELLATE DISTRICT
STATE OF CALIFORNIA
2nd. Civil No. 60960
Filed March 5, 1982
FRANK M. GILLILAND, JR., et al.,
Plaintiffs and APPELLANTS,
vs.
COUNTY OF LOS ANGELES,
Defendants and RESPONDENTS.
NOTICE OF APPEAL TO THE
SUPREME COURT OF THE
UNITED STATES
Notice is hereby given that Appellants Frank M.
Gilliland, et al. hereby appeal to the Supreme Court of the
United States from the decision of the California Court of
Appeal entered in this action on November 25, 1981 and as
to which the California Supreme Court denied hearing on
February 10, 1982.
This appeal is taken pursuant to 28 USC §1257(2).
FADEM, BERGER & NORTON
MICHAEL M. BERGER
Attorneys for Appellants
~ yo
PROOF OF SERVICE
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
I am a citizen of the United States and a resident of the
county aforesaid. I am over the age of 18 years and not a
party to the above entitled action; my business address is
501 Santa Monica Boulevard, Santa Monica, California.
On March 5, 1982 I served the within NOTICE OF AP-
PEAL TO THE SUPREME COURT OF THE UNITED
STATES on the interested parties in said action by placing
a true copy thereof in a sealed envelope with postage
thereon fully prepaid in the United States mail at Santa
Monica, California addressed as follows:
John H. Larson, County Counsel
Paul T. Hanson, Deputy County Counsel
648 Hall of Administration
500 West Temple Street
Los Angeles, CA 90012
Superior Court for the County of Los Angeles
For the Hon. Alexander Early, III
111 North Hili Street
Los Angeles, CA 90012
Clerk: California Supreme Court
4250 State Building
455 Golden Gate Avenue
San Francisco, CA 91401
atin
All parties required to be served have been served.
I declare under penalty of perjury that the foregoing is
true and correct.
Executed on this Sth day of March 1982 at Santa
Monica, California.
JACQUELYNN TOLLEFSON
Section 32.02 Principal Uses Permitted
Premises in Zone A-2 may be used for:
A. The following principal uses provided that all
buildings or structures shall be located not less
than fifty (50) feet from any street, highway or
any building used for human habitation:
1. Animal hospitals.
2. Animal raising, including such animals
as poultry, fowl, birds, rabbits, chin-
chilla, nutria, mice, frogs, fish, bees,
earthworms and other similar animals
of a comparable nature, form and size
including hatching, fattening,
marketing, sale, slaughter, dressing,
processing, and packing, including
eggs, honey or similar products derived
therefrom.
3. Animal training schools.
Kennels, dog and cat.
5. Veterinary offices.
B. The following principal uses:
1. Camps, youth.
2. Camp grounds, picnic areas, trails with
overnight camping facilities, including
fishermen’s and hunters’ camps but not
including structures for permanent
human occupancy.
3. Crops, field, tree, bush, berry and row,
including nursery stock, the growing
of.
—M-2—
Dwellings, one-family.
5. Electric distribution and_ electric
transmission substations including
microwave facilities in conjunction
therewith, provided such use is not
established within fifteen hundred
(1,500) feet of any public building,
park, school or residential zone.
6. Mushroom farms.
7. Oil wells pursuant to the provisions of
Article 91 (Regulation of Principal
Uses Permitted).
8. Parking lots as a supplemental use on
lots or parcels of land adjoining or
across an alley from any commercial or
manufacturing zone, pursuant to the
provisions of Article 91 (Regulation of
Principal Uses Permitted).
The following additional principal uses on a lot
or parcel of land having an area of not less than
five (5) acres:
1. Breeding farms for the selective or ex-
perimental breeding of cattle, sheep, or
horses or the raising and training of
horses or show cattle and sheep.
2. Community auction grounds, exclusive-
ly for the sale of agricultural pioducts.
3. Livestock sales yards.
Logging operations, involving only the
actual controlled cutting and removing
of trees with no sawmill operations.
6.
=
Raising of cattle, sheep, goats and
horses.
Riding academies and stables with
boarding of horses.
D. The following additional principal uses on a lot
or parcel of land having an area of not less than
ten (10) acres:
Dairies, including the processing and
sale of dairy products from milk
lawfully produced on the premises.
Livestock feed yards.
Manure, the spreading, drying and sale
of, providing no shaking or pulverizing
machinery is used in connection
therewith.
E. Other similar uses which the Commission finds to
fall within the intent and purpose of this Zone,
will not be more obnoxious or materially
detrimental to the public welfare or to property
in the vicinity of said uses and which the Com-
mission finds to be of a comparable nature and
of the same class as the uses enumerated in this
Section.
Section 32.03 Accessory Uses Permitted
Premises in Zone A-2 may he used for accessory uses, pro-
vided such uses are established on the same lot or parcel of
land, are incidental to, and do not substantially alter the
character of any permitted principal use, including but not
limited to:
caliittin
Accessory buildings or structures other than for
the housing, nurture or confinement of animals
including but not limited to:
a. Private garages, carports and children’s
playhouses.
b. Tool houses, lathhouses and
greenhouses.
c. Windmills, silos, tank houses, buildings
or shelters for farm equipment or
machinery, water wells, water reservoirs
and storage tanks.
c. Stands for the purpose of displaying
and selling agricultural products lawful-
ly produced on the property, subject to
the following conditions:
(1) Floor area shall not exceed three
hundred (300) square feet.
(2) Not to exceed one (1) stand on a
lot or parcel of land.
Accessory buildings or structures required for the
housing, nurture, confinement or storage of
animals, lawfully permitted or produced on the
premises, provided such buildings or structures
are located not less than fifty (50) feet from any
street, highway or any building used for human
habitation or residential zone.
Accessory signs as permitted in subsection F of
Section 32.06.
Building materials, storage of, used in the con-
struction of a building or building project, during
ait Bun
construction and thirty (30) days thereafter, in-
cluding the contractor’s temporary office, pro-
vided that any lot or parcel of land so used shall
be a part of the building project or on property
adjoining the construction site.
5. A caretaker’s residence, where the legally
established use requires the continuous supervi-
sion of a caretaker or superintendent, if occupied
only by such persons and their families.
6. Cattle, goats, hogs or sheep, not to exceed two
(2) such animals on a lot or parcel of land having
an area of not less than twenty thousand (20,000)
square feet, providing a dwelling unit is located
thereon, and that such animals are not kept or
housed within fifty (50) feet of any street,
highway or any building used for human habita-
tion.
7 A guest house.
8. Horses on a lot or parcel of land having an area
of not less than twenty thousand (20,00) square
feet, provided that said horses are kept or main-
tained for the private use of members of the
family residing on the premises, but in no event
more than one (1) such horse for each ten thou-
sand (10,00) square feet of lot area, and that
such horses are not kept or housed within fifty
(50) feet of any street, highway, or any building
used for human habitation.
9. Pets, household, provided that not to exceed
three (3) mammals over four (4) months of age
are kept for each dwelling unit.
10. Wild animals as specifically provided herein:
a
The following being permitted, provided such
animals are kept and maintained at a place where
the keeping of domestic animals is permitted:
BRENSK ESET YT ApoB EK ReS HK rR me ao ge
eB
Alpacas
Anoas
Antelopes
Armadilloes
Badgers
Beavers
Camels
Canaries
Chamoises
Chinchillas
Chipmunks
Cockateels
Deer
Finches
Foxes
Giraffes
Gopher snakes
Guinea pigs
Hamsters
Hawks
Kangaroos
King snakes
. . Koalas
Llamas
Marmosett monkeys
Minks
. Otters
. Ostriches
. Parrots and other birds of the psit-
tacine family
Peacocks
Porcupines
To
af. Prairie dogs
ag. Raccoons
ah. Reindeer
ai. Seals
aj. Squirrel monkeys
ak. Tropical fish excluding caribe
al. Turtles
am. Wallabies
an. White mice
ao. White rats
ap. Zebras
aq. Other similar animals which, in the
opinion of the Commission, are neither
more obnoxious or detrimental to the
public welfare than the animals
enumerated in this Section.
Section 32.04 Uses Subject to Director’s
Review and Approval
Premises in Zone A-2 may be used for the following pur-
poses subject to review and approval by the Director, pur-
suant to the provisions of Article 105 (Site Plan Review):
1. Access to property lawfully used for purposes not
permitted in Zone A-2, provided no other prac-
tical access to such property is available, and
such access will not alter the character of the
premises in respect to permitted uses in Zone
A-2.
2. Christmas trees and wreaths, the sale of, bet-
ween December 1 and December 25, both dates
inclusive, to the extent permitted by other
statutory and ordinance provisions. Any struc-
tures, facilities and materials used for the sale of
Te
trees and wreaths shall be removed from the premises by
December 31 of the same calendar year, and the property
restored to a neat condition.
3. Colleges and universities, including appurtenant
facilities, giving advanced academic instruction
approved by the State Board of Education or
other recognized accrediting agency, but ex-
cluding trade or commercial schools.
Communication equipment buildings.
Country clubs.
Day care for children, family home.
Electric distribution and electric transmission
substations including microwave facilities in con-
junction therewith, except as otherwise provided
in Section 32.02.
8. Fishing and casting ponds.
9. Golf courses.
10. Homes for aged persons, foster family.
11. Homes for children, foster family.
12. Microwave stations.
13. Parks, playgrounds and beaches, publicly owned,
with all appurtenant facilities customarily found
or permitted in conjunction therewith.
14. Riding and hiking trails.
15. Schools, through grade twelve (12), accredited,
including appurtenant facilities, which offer in-
struction required to be taught by the Education
Code of the State of California, in which no
pupil is physically restrained, but excluding trade
or commercial schools.
FF
16.
17.
Section 32.05 Uses by Conditional Use Permit
Premises in Zone A-2 may be used for the following pur-
poses, provided a permit has first been obtained, pursuant
to the provisions of Article 102 (Variances and Conditional
—M-9—
Ski lifts, tows, runs and warming huts.
Storage, temporary, of materials and construc-
tion equipment used in construction or
maintenance of streets and highways, sewers,
storm drains, underground conduits, flood con-
trol works, pipe lines and similar uses.
Telephone Repeater stations.
Use Permits):
e¥ PPP
9.
Agricultural workers’ living quarters, for persons
employed and deriving the major portion of their
income from employment on the premises.
Airports.
Bus terminals, storage and rental.
Cemeteries.
Churches, temples or other places used exclu-
sively for religious worship, pursuant to the pro-
visions of Article 94 (Regulation of Uses Estab-
lished by Conditional Use Permit).
Circus winter quarters.
Convents and monasteries.
Correctional institutions including jails, farms
and camps.
Day care for children, special home.
10. Day nurseries, children.
12.
—M-10—
Electric generating plants, including microwave
facilities in conjunction therewith.
Fairgrounds of a public character, when per-
manently located, including such commercial uses
as are normally accessory or appurtenant thereto.
Farm equipment repair shops.
Farm labor camps, established to serve as tem-
porary housing for migrant and temporary
workers and their immediate families.
. Fertilizer plants.
Fire stations.
Fruit and vegetable packing plant.
Gas measurement stations.
Golf driving ranges.
Guest ranches.
Heliports.
Helistops.
Hog ranches.
Homes for aged persons, small group care.
Homes for children, special boarding.
Hospitals.
Institutions for aged persons, private.
Institutions for children, private.
Lard reclamation projects pursuant to the provi-
sions of Article 94 (Regulation of Uses Estab-
lished by Conditional Use Permit).
Libraries.
. Lodge halls.
32.
Menageries.
33.
$1.
52.
53.
—M-l1—
Mobilehome parks pursuant to the provisions of
Article 94 (Regulation of Uses Established by
Conditional Use Permit).
Museums.
. Nursery schools, pre-school children.
Observatories.
Police stations.
Post office.
Private clubs.
Public utility service centers.
. Race tracks.
. Radio and television stations and towers, but not
including studios.
. Revival meetings, tent.
Rifle, pistol or skeet ranges.
. Road construction and maintenance yards.
Rodeos.
. Sawmills, only in conjunction with logging opera-
tions.
Solid fill projects.
Theaters, drive-in.
Water reservoirs, dams, treatment plants, gaging
stations, pumping stations, and any use normal
and appurtenant to the storage and distribution
of water, other than as provided in Section
32.03.
Wild animal exhibitions.
Wild animals, the keeping of either individually
or collectively for private or commercial purposes
except as otherwise provided in Section 32.03.
Zoos.
unifies
Section 242 Zone A-2 (Heavy Agriculture)
-Permitted Uses
Premises in Zone A-2 may be used for:
A. The following uses:
1. Residence, single family.
2. Crops, field, tree, bush, berry, and row
including nursery stock.
3. Day care for children, family homes.
Homes for aged persons, foster family.
5. Homes for children, foster family.
B. The following agricultural uses provided all
buildings or structures used in connection
therewith shall be located not less than fifty (50)
feet from any street or highway or any building
used or designed for human habitation.
1. Animal hospitals.
2. Animal shelters and pounds.
3. Aquaria.
4. Dairies, including the processing and
sale of dairy products from milk
lawfully produced on the premises on a
lot or parcel of land having an area of
not less than ten (10) acres.
5. Dog kennels.
. Dog training schools.
7. Feed mills on a lot or parcel of land
with an area of not less than five (5)
acres.
8. Greenhouses on a lot or parcel of land
with an area of not less than one (1)
acre.
10.
12.
13.
14.
—_N-2—
Hogs, the maintenance of not to exceed
five (5) weaned hogs or pigs, subject to
the requirements of Section 233 C.
Livestock feed yards on a lot or parcel
of land having an area of not less than
ten (10) acres.
Livestock sales yards on a lot or parcel
of land having an area of not less than
five (5) acres.
Manure, the spreading, drying and sale
of, provided no shaking or pulverizing
machinery is used in connection
therewith on a lot or parcel of land
having an area of not less than ten (10)
acres
Mushroom farms.
The raising of horses and other equine,
cattle, sheep and goats, including the
breeding and training of such animais,
on a lot or parcel of land having an
_ area of not less than one (1) acre, pro-
vided that
a. On lots or parcels of land
having ai‘ area of less than
five (5) acres, eight (8) such
animals may be kept or
maintained per acre in con-
junction with such use, and
b. On lots or parcels of land
having an area of five (5)
acres Or more, there shall be
no limitation as to ihe
number of such animals
=i.3.-
which may be kept or maintain-
ed in conjunction with such
use.
15. Raising of poultry, fowl, birds, rabbits,
chinchilla, nutria, mice, frogs, fish,
bees, earthworms, and other similar
animals of comparable nature, form
and size including hatching, fattening,
marketing, sale, slaughtering, dressing,
processing and packing, and including
eggs, honey or similar products derived
therefrom, on a lot or parcel of land
with an area of not less than one (1)
acre.
16. Riding academies and stables with the
boarding of horses on a lot or parcel of
land having an area of not less than
five (5) acres.
17. Riding and hiking trails, but excluding
trails for motor vehicles.
18. Veterinary.
The following uses provided they are located at
least three hundred (300) feet from any public
park, or any area in any residential zone:
1. Fairgrounds of a public character,
when permanently located, including
such commercial uses as are normally
accessory Or appurtenant thereto.
Fruit and vegetable packing plants.
3. Linseed, cottonseed, and coconut oil
processing plants.
—N-4—
D. The following additional uses:
Campgrounds, picnic areas, trails with
overnight camping facilities, including
fishermen’s and hunters’ camps but not
including structures for permanent
human occupancy.
Camps, youth.
Logging operations, involving only the
actual controlled cutting and removing
of trees with no sawmill operations.
Oil wells including the installation and
use of such equipment, structures, and
facilities as are necessary or convenient
for all drilling and producing opera-
tions customarily required or incidental
to usual oil field practice, including but
not limited to, the initial separation of
oil, gas and water, and for the storage,
handling, recycling and transportation
of such oil, gas and water to and from
the premises. This subsection does not
permit refineries or absorption plants.
The use permitted by this subsection is
subject to the following conditions, ex-
cept that by specific action in each in-
stance the Commission may waive or
modify any one or more of such condi-
tions if it finds that such waiver or
modification wil] not result in material
detrimental to the public welfare or to
the property of other persons located in
the vicinity thereof:
-
Drilling shall not be within
three hundred (300) feet of any
residemce, except the resilience
of the owner of the land on
which the well is located and
except a residence located on
land which, at the time of the
drilling of the well, is under
lease to the person drilling the
well.
If the drilling is within five hun-
dred (500) feet of one or more
residences except the residence
of the owner of the land on
which the well is located and
except a residence located on
land which, at the time of the
drilling of the well is under
lease to the person drilling the
well, that:
(1) All derricks used in con-
nection with the drilling of the
well shali be enclosed with fire-
resistant and sound-proofing
material unless the heads of all
families occupying any
residence within 1320 feet (one-
quartcr mile) of the drilling site,
other than of a_ residence
described at the beginning of
this paragraph b., files a written
waiver with the Commission.
‘
eititia.
(2) All drilling and pumping
equipment shall be operated by
muffled internal combustion
engines or by electric motors.
(3) Materials, equipment,
tools, or pipe used for either
drilling or producing operations
at the well hole shall not be
delivered to or removed from
the drilling site except between
the hours of 8:00 a.m. and 6:00
p.m. of any day, except in case
of emergency.
The derrick used pursuant to
this section to drill any well
hole or to repair, clean out,
deepen or redrill any completed
or drilling well, shall be remov-
ed within ninety days after com-
pletion or abandonment of any
well.
Within ninety days after aban-
donment of any well, earthen
sumps used in drilling or pro-
duction, or both, shall be filled
and the drilling site restored as
nearly as practicable to its
original condition.
Any unattended earthen sump
located within 1320 feet (one-
quarter mile) of the nearest
highway or within 2640 feet
(one-half mile) of 20 or more
residences shall be enclosed with
—_N-7—
a fence not less than five (5)
feet high mounted on steel posts
with not less than three (3)
strands of barbed wire around
the top. Such fence shall be
constructed of woven wire fenc-
ing or equivalent of not greater
than six (6) inch mesh.
When private roads to wells are
constructed, that portion of
such roads lying within two
hundred (200) feet of an oiled
or surfaced public highway, or
of an existing residence, shall be
oiled or surfaced.
A well hole, derrick, or tank
shall not be placed within twen-
ty (20) feet of any public
highway.
Except as provided in Section
243, a faithful performance
bond of two thousand dollars
($2,000.00) shall be filed with
the Board of Supervisors for
each well for the first five (5)
wells. Where more than five
wells are drilled, ten thousand
dollars ($10,000.00) in bonds
shall be the total required of all
oil operators. Either such bond
shall include as obligees all per-
sons who may be damaged or
annoyed by such use or a policy
of insurance shall be filed with
alin
the Board of Supervisors having
a maximum amount of recovery
not less than the amounts re-
quired of a bond, directly insur-
ing all persons who may be
damaged or annoyed by such
use.
All drilling and producing
operations shall conform to all
applicable fire and _ safety
regulations.
Not more than two (2) produc-
tion tanks, neither to exceed
one thousand (1,000) barrels
capacity, shall remain on the
premises following completion
of production tests at each well,
provided however, that this
condition shall not restrict the
maintenance of additional tanks
for storage and shipping.
Proven technological im-
provements in drilling and pro-
duction methods shall be
adopted as they may become,
from time to time, available if
capable of reducing factors of
nuisance and annoyance.
All drilling and production
operations shall be conducted in
such a manner as not to con-
stitute a public nuisance.
—T eo
m. Signs shall not be constructed,
erected, maintained, or placed
on the premises or any part
thereof, except those required
by law or ordinance to be
displayed in connection with the
drilling or maintenance of the
well.
n. Suitable and adequate sanitary
toilet and washing facilities shall
be installed and maintained to a
clean and sanitary condition at
all times.
5. Parks, playgrounds and beaches with
all appurtenant facilities customarily
found in conjunction therewith.
6. Youth hostels.
Section 242.1 Zone A-2 - Accessory Uses
Property in Zone A-2 may be used for:
A. The following accessory uses subject to the same
limitations and conditions provided in Section
207.3. (Zone R-1):
1. Accessory buildings and structures.
2. Animals, domestic and wild, maintain-
ed or kept as pets or for personal use
as provided in Article 12 , of Chapter
we
3. Building materials, storage of.
Detached living quarters for guests or
servants.
5. Living quarters for servants, attached
to such residence.
6.
B. Stands for the display and sale of any products,
the production of which is permitted in Zone A-2
by Section 242, and which have lawfully been
produced on such lot or parcel of land provided:
4.
—N-10—
Room rentals.
That said stand shall be exclusively of
wood frame construction (except the
floor).
That said stand shall have a floor area
of not more than three hundred (300)
square feet.
That said stand shall be located not
nearer than twenty (20) feet from any
street or highway upon which such lot
or parcel fronts or adjacent residences.
That said stand will be on a parcel of
land not less than one (1) acre in area.
C. Signs as provided in Article 7 of Chapter 7.
Section 242.2 Zone A-2 - Uses Subject to
Director’s Review and Approval
If site plans therefor are first submitted to and approved
by the Director, premises in Zone A-2 may be used for:
A. The following uses.subject to the same limita-
tions and conditions provided in Section 207.5
(Zone R-1):
Access to property lawfully used for a
purpose not permitted in Zone A-2.
Carnivals, temporary.
Grading projects, off-site transport.
—
Mobilehomes used as a residence dur-
ing construction.
Model homes.
Parking iots as a transitional use.
Real estate tract offices, temporary.
following additional uses:
Christmas trees and wreaths, the sale
of, between December 1 and December
25, both dates inclusive,to the extent
permitted by other statutory and or-
dinance provisions. Any structures,
facilities and materials used for the sale
of trees and wreaths shall be removed
from the premises by December 31 of
the same calendar year, and the proper-
ty restored to a neat condition.
Day nurseries, children, where operated
in conjunction with and incidental to a
legally established accredited school of-
fering instruction required to be taught
by the Education Code of the State of
California.
Schools, through grade twelve (12) ac-
credited, including appurtenant
facilities, which offer instructivn re-
quired to be taught in the public
schools by the Education Code of the
State of California in which no pupil is
physically restrained but excluding
trade or co:amercial schools.
Signs as provided in Article 7 of
Chapter 7.
—N-12—
Section 242.3 Zone A-2 - Uses Subject to Per-
mits
Property in Zone A-2 may be used for:
A. The following uses provided a conditional use
permit has first been obtained as provided in
Article 1, Chapter 5 and while such permit is in
full force and effect in conformity with the con-
ditions of such permit for:
1. Airports.
2. Amphiteaters having a seating capacity
of not to exceed five hundred (500)
seats, but excluding drive-in theaters.
3. Arboretums and horticultural gardens.
Athletic fields, excluding stadiums.
5. Churches, temples or other places used
exclusively for religious worship includ-
ing customary incidental educational
and social activities in conjunction
therewith.
Circus winter quarters.
Communication equipment buildings.
Convents and monasteries.
Correctional institutions including jails,
farms, and camps.
10. Day care for children, special homes.
11. Day nurseries, children, except as
otherwise provided in Section 242.2.
12. Earth stations.
13. Electric distribution substations, elec-
tric transmission substations, and
7 Ff * @
23.
25.
—N-13—
generating plants including microwave
facilities used in conjunction with any
one thereof.
Farm equipment repair shops.
Farm equipment, storage, sales and
rental.
Farm labor camps.
Fertilizer plants.
Fire stations.
Gas metering and control stations,
public utility.
Golf courses including the customary
clubhouse and appurtenant facilities.
. Golf driving range.
Grading projects, off-site transport,
where more than one hundred thou-
sand (100,000) cubic yards of material
is to be transported, subject to the con-
ditions and limitations of Sections
501.14 and 501.15.
Grading project, on-site but excluding
projects where the Commission or the
Board of Supervisors have previously
considered such grading proposal as in-
dicated by approval of an Environmen-
tal Document incorporating considera-
tion of such grading project.
Grange halls.
Guest ranches.
S&S 8
41.
42.
—N-14—
Heavy equipment training school on a
lot or parcel of land having an area of
not less than one hundred (100) acres.
. Health retreats subject to the condi-
tions of Section 246.
Heliports.
Helistops.
Homes for aged persons, small group
care.
. Homes for children, special boarding.
Hospitals.
. Institutions for aged persons, private.
Intitutions for children, private.
Juvenile halls.
Land reclamation projects.
Tanding strips.
cibraries.
Living quarters for persons employed
and deriving a major portion of their
income on the premises, if occupied by
such persons and their immediate
families.
Menageries, zoos, animal exhibitions or
other similar facilities for the keeping
or maintaining of wild animals, except
as otherwise provided in Section 242.5.
Microwave stations.
Mobilehome parks subject to the condi-
tions of Article 13 of Chapter 7.
43.
45.
—N-15—
Mobilhomes for use by a caretaker and
his immediate family in accordance
with Article 13 of Chapter 7.
Mobilhomes used as a residence of the
owner and his family during the con-
struction by such owner of a perma-
nent single family residence but only
while a building permit for the con-
struction of such residence is in full
force and effect and in no event longer
than one (1) year in addition to that
provided for in Section 242.2.
Motion picture sets, including the tem-
porary use of domestic and wild
animals in motion picture and televi-
sion production, provided the said
animals are kept or maintained pur-
suant to all regulations of the Los
Angeles County Department of Animal
Control, and are not retained on the
premises for a period exceeding sixty
(60) days. The Director may extend
such time period for not to exceed thir-
ty (30) additional days subject to the
provisions of Article 8 (Director’s
Review) of Chapter 5.
Museums.
. Nudist camps.
Observatories.
Outdoor festivals.
Pest control operations.
. Plant nursery retail subject to the con-
ditions of Section 246.
52.
53.
$5.
57.
58.
59.
61.
—N-16—
Police stations.
Publicly owned uses necessary to the
maintenance of the public nealth, con-
venience or general welfare in addition
to those specifically listed in this Sec-
tion.
Public utility service centers.
Public utility service yards.
Radio and television stations and
towers, but not including studios.
Recreation clubs, private, including
tennis, polo and swimming. Where
specifically designated a part of an ap-
proved conditional use permit such use
may include a pro shop, restaurant and
bar as appurtenant uses.
Recreational trailer parks on a lot or
parcel of land having an area of not
less than five (5) acres as provided in
Article 13 of Chapter 7.
Refreshment stands operated in con-
junction with and intended to serve the
patrons of a use permitted in Zone
A-2, but not as a separate enterprise.
Residence, caretaker’s - A conditional
use permit may be granted for a
caretaker’s residence even though the
number of existing residences on the lot
or parcel of land is the maximum
number permitted as of course by Sec-
tion 702.7.
Revival meetings, tent.
SS 8
71.
72.
73.
74.
75.
76.
= =
Rifle, pistol, skeet or trap ranges.
Road construction and maintenance
yards.
Rodeos, but not including horse racing.
. Sawmills, only in conjunction with log-
ging Operations.
Sewage treatment plants.
. Signs as provided in Article 7 of
Chapter 7.
Solid fill projects.
Stations, bus, railroad, taxi.
Storage, temporary, of materials and
construction equipment used in con-
struction or maintenence of streets and
highways, sewers, storm drains,
underground conduits, flood control
works, pipe lines and similar used for a
period not to exceed one (1) year.
Subdivision directional signs subject to
the limitations and conditions of Arti-
cle 6 of Chapter 5.
Telephone repeater stations.
Terminals, bus and railroad.
Theaters, drive-in.
Theaters, Amphitheaters having a
seating capacity of not to exceed five
hundred (500) seats, but exluding drive-
in theaters.
Water reservoirs, dams, treatment
plants, gaging stations, pumping sta-
tions, tanks, wells and any use normal
—N-18—
and appurtenant to the storage and
distribution of water.
77. Wild animals, the keeping of either in-
dividually or coliectively for private or
commercial purposes except as other-
wise provided in Section 242.5.
B. The following uses provided the specified permit
has first been obtained, and while such permit is
in full force and effect in conformity with the
conditions of such permit for:
1. Cemeteries as provided in Article 4 of
Chapter 5.
2. Explosives storage as provided in Arti-
cle 5 of Chapter 5.
3. Mobilehomes, individual placement of
a mobilehome containing one (1) dwell-
ing unit in lieu of a single family
residence on a lot or parcel of land
having as a condition of use the area
requirement of the zone but in no case
with an area of less than two and one-
half (2 1/2) acres as provided in Article
12 of Chapter 5.
4. Surface mining operations as provided
in Article 11 of Chapter 5.
0} UONOW
Supreme Court, U.S,
FILED
APR 19 1962
DER L. STEVAS
No. 81-1700 ——«_
IN THE
Supreme Court of the United States
October Term, 198!
ROBERT J. GILLILAND, et al.,
Appellants,
vs.
Ciry OF PALMDALE and County OF Los ANGELES,
Appellees.
On Appeal From the Supreme Court of California.
MOTION TO DISMISS APPEAL
OR AFFIRM.
JOHN H. LARSON,
County Counsel,
PAUL T. HANSON,
Deputy County Counsel,
648 Hall of Administration,
500 West Temple Street,
Los Angeles, Calif. 90012,
(213) 974-1841,
Attorneys for Appellee,
County of Los Angeles.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
Question Presented.
If a property owner buys a piece of unimproved land then
zoned for agricultural and other uses and, there having been
no change of zone and no improvement in the meantime,
later requests that the zoning of his parcel be changed to
allow commercial uses; and if the market value of the prop-
erty would be substantially increased were it to be adver-
tisable as zoned for commercial uses; and if the local leg-
islative body denies the change of zone because no need
exists for commercially zoned land at the location and be-
cause future commercial use would be inconsistent with the
present and future use of a nearby developed and improved
parcel devoted to aircraft construction and airport opera-
tions; has the local governmental entity, by denying a change
of zone which would substantially increase the market value
of the subject, taken it without just compensation in violation
of the Fifth Amendment?
ii
TABLE OF CONTENTS
UII 01. 4 ioc ctliniiiceneevecsoossasasoseeceesupena
NCE CIID dedcsisdceccsnsccvepnicsosndecssedeeses
PED 0 ccs cccivessccccescecesvscccccscssccesssscscescaseses
I.
If No Taking Without Compensation Has Been
Pleaded the Issue of Remedies Is Not Raised .....
Il.
The Existence of a Right in Real Property Is a Ques-
le I ID hiinccencncccssvcnseceveccncssensectis
Ill.
The Owner of Undeveloped Real Property Has No
Vested Right in the Zoning in Effect at the Time
of Purchase, Much Less a Right to a Change to a
Ie WED HII Sp nccccsedccscscoscoconeeesieses
IV.
A Property Owner Has No Right to Have His Property
Zoned so as to Maximize Its Market Value .......
V
When a Zoning Ordinance Is Facially Constitutional,
There Can Be No Taking by Land-Use Regulation
Unless There Is a Denial of a Development Plan
VI.
IIE ‘dincicsiennddindetccercrecssdininsmeeszenseees
INDEX TO APPENDICES
Appendix |. First Amended Complaint for Inverse
SII icdtiekdassdetnesecoesrsscséusonies App. p.
Appendix 2. Section 262. Zone CPD (Commercial
PE COTE cc ccccccccccsccsccsscesveccossesces
TABLE OF AUTHORITIES
Cases Page
Agins v. Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372
SUN thst tanilaticbbddalbdMainadeddcsncgénnicaseakinsetens 4
Agins v. Tiburon, 447 U.S. 255 (1980) .......... 4,6, 7
Avco Community Developers, Inc. v. South Coast Re-
gional Commission, 17 Cal.3d 785, 132 Cal.Rptr.
386 (1976), cert. den., 429 U.S. 1083 (1978) ...... 5
Board of Regents v. Roth, 408 U.S. 564 (1972) ...... 5
Deltona Corp. v. United States, 657 F.2d 1184 (Ct.Cl.
SINE? dieishindhdmaineiicaiilidimnlih dtcindnibbiikeeehieadicgies 6
Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668
UU -dadeaNenipihbmbidabacddatskudisisesssinteeviinceneseine 5
Ellentuck v. Klein, 570 F.2d 414 (2nd Cir. 1978) .... 5
Gilliland v. County of Los Angeles, 126 Cal.App.3d
GE BP GAR: FD CHUGED cecsnccccccvesvesecsses 2, 4
Hilltop Properties v. State of California, 233 Cal.App.2d
SOD, 43 Cal Rote. GES (IDES) ........ccceccccccceseveess 5
Oceanic California, Inc. v. City of San Jose, 497
P.2aep. S62 C6.D. Cab: 19GB). ...ccccccccccscccecsscees 5
Penn Central Transp. Co. v. City of New York, 438
SA NUE sivteilakahiblenbtictsdcnnstunctvudeiawedeins 6
Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736
EE TTD sdicudenbhatipdabasécesssscdnersipeoisianens 5
Trans-Oceanic Oil Corp. v. Santa Barbara, 85 Cal. App.2d
Fe ee PE GD icc sncsnscscnnsiccnndoneeidese 5
Village of Euclid v. Ambler Realty Co., 272 U.S. 365
REY Sib dhisdighdbbebiinideduiuactconsescedesssesenconainpas 6
iv
Constitution Page
United States Constitution, Fifth Amendment ....... i, 4
United States Constitution, Fourteenth Amendment ... 4
Statutes
Los Angeles Zoning Ordinance, Sec. 262(B) ....... 3, 7
Lnited States Code, Title 42, Sec. 1983 ................ 4
Textbook
37 American Law Reports 3d, p. 109 ..............00005 5
No. 81-1700
IN THE
Supreme Court of the United States
October Term, 1981
ROBERT J. GILLILAND, et al.,
Appellants,
vs.
City OF PALMDALE and COUNTY OF LOS ANGELES,
Appellees.
MOTION TO DISMISS APPEAL
OR AFFIRM.
Appellee, County of Los Angeles, moves that the appeal
herein be dimissed or alternatively that the judgment be
affirmed, on the grounds that:
1. No substantial federal question is raised because the
California decision is that no taking without compensation
is adequately pleaded;
2. The decision that no taking has been pleaded is based
on California law, an adequate non-federal basis;
3. Furthermore, the decision that no taking has been
pleaded under applicable law is in conformity with federal
cases, including leading cases on the taking issue decided
by this Court.
Statement of the Case.
This is an appeal from the sustaining of a general demurrer
without leave to amend after counsel for appellants repre-
sented that no substantially different facts could be pleaded.
= =
A copy of the First Amended Complaint for Inverse Con-
demnation, the dismissal of which is the subject of this
appeal, is attached as Appendix |.
The Court of Appeal of the State of California affirmed
the judgment of dismissal following the sustaining of de-
murrer because ‘‘[ujltimately, the Gillilands fail[ed] to al-
lege facts which constitute a taking of property.”’ See Ju-
risdictional Statement (hereafter *‘J.S.’’), Appendix D 8-9;
Gilliland v. County of Los Angeles, 126 Cal.App.3d 610,
617, 179 Cal.Rptr. 73, 78 (1981) (hereafter ‘*County
case’’).
The California Supreme Court reitised to grant a hearing.
J.S., Appendix H-1.
The Gillilands purchased the subject property of the
County appez| in 1967. It was then, and is now, zoned A-
2-5, which zoning allows agricultural and other uses, in-
cluding residential. See J.S., Appendix N 1-18.
The property was at all pertinent times, and is now, un-
improved and undeveloped.
In 1973 the Los Angeles County Board of Supervisors,
on appeal from the Regional Planning Commission of Los
Angeles County, denied the requested up-zoning of the sub-
ject property to ‘‘CPD,’’ commercial planned development.
The appellants contend that since the property would have
substantially greater market value if up-zoned to commercial
planned development, the denial of up-zoning constitutes
an uncompensated taking of the property by the County of
Los Angeles.
According to the First Amended Complaint, the reasons
for the denial of the up-zoning were that there was no need
for additional commercially zoned land in the area (see
Appendix 1-3) and that commercial development of the
subject property would be inconsistent with proposed future |
—
airport development and with existing and future airport
operations at Air Force Plant 42, an adjoining parcel which
was already improved and developed. See Appendix 1-3.
The appellants do not allege or contend that their purchase
in 1967 preceded the commencement of large scale aircraft
construction and airport operations at the nearby Air Force
Plant 42.
Appendix 2, attached hereto, is a copy of the applicable
County of Los Angeles zoning ordinance, pertaining to zone
CPD, the requested zoning, which was made the subject of
judicial notice by the California Court of Appeal. See J.S.,
Appendix E-1. Note that development of CPD-zoned prop-
erty (as opposed to sale) requires a conditional use permit
under section 262(B) of Appendix 2.
No application for a conditional use permit is pleaded in
the First Amended Complaint. See Appendix |.
‘titan
ARGUMENT.
I.
If No Taking Without Compensation Has Been Pleaded
the Issue of Remedies Is Not Raised.
In Agins v. Tiburon, 447 U.S. 255 (1980), this Court
said: ‘‘ Because no taking has occurred, we need not consider
whether a State may limit the remedies available to a person
whose land has been taken without just compensation.”’ /d.
at 263.
The California Court of Appeal, herein, held that there
had been no adequate pleading of a taking without com-
pensation. Gilliland v. County of Los Angeles, 126 Cal. App.3d
610, 617, 179 Cal.Rptr. 73, 78 (1981).
The trial court, herein, also, necessarily, made such a
ruling; because declaratory relief was prayed for in the First
Amended Complaint and this is a proper remedy for an
uncompensated taking by zoning activities under Agins v.
Tiburon, 24 Cal.3d 266, 276-77, 157 Cal.Rptr. 372, 378
(1979).
Since, it is very clear that a refusal to up-zone to a more
valuable zoning from a zoning that was in effect when the
plaintiff purchased the property, does not and should not
constitute an uncompensated taking, this Court should dis-
miss this appeal.
Appellants are here asking this Court to expressly over
rule Agins v. Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372
(1979), as to remedies for uncompensated taking by zoning
activities even though they have not pleaded an uncompen-
sated taking.
Il.
The Existence of a Right in Real Property Is a Question
of State Law.
The Fifth and Fourteenth Amendments and the Civil
Rights Act, 42 U.S.C. $1983, do not create rights in prop-
erty. They protect rights in property arising from state law.
a
Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Rodic
v. Thistledown Racing Club, Inc., 615 F.2d 736, 739 (6th
Cir. 1980); Ellentuck v. Klein, 570 F.2d 414, 429 (2nd Cir.
1978).
To state a cause of action for an uncompensated taking,
*‘an invasion or an appropriation of some valuable property
right’’ of the landowner must be pleaded. Hilltop Properties
v. State of California, 233 Cal.App.2d 349, 355-56, 43
Cal.Rptr. 605, 609 (1965); 37 A.L.R.3d 109.
Under the law of California and decisions of this Court
and lower federal courts a landowner has no right to a change
of zone from that in force at the time of purchase to a more
valuable zoning. Therefore, denial of such an upzoning
could not constitute a taking.
Il.
The Owner of Undeveloped Real Property Has No
Vested Right in the Zoning in Effect at the Time of
Purchase, Much Less a Right to a Change to a More
Valuable Zoning.
Under the common law of California and other states,
and decisions of this Court, the purchaser of undeveloped
land has no vested right in existing zoning, and certainly
no right to different and more valuable zoning than that
which attached at purchase. Eastlake v. Forest City Enter-
prises, Inc., 426 U.S. 668, 679 at fn. 13 (1976); Oceanic
California, Inc. v. City of San Jose, 497 F.Supp. 962, 974
(N.D. Cal. 1980); Avco Community Developers, Inc. v.
South Coast Regional Commission, 17 Cal.3d 785, 791,
132 Cal.Rptr. 386, 389-90 (1976), cert. den., 429 U.S.
1083 (1978); Trans-Oceanic Oil Corp. v. Santa Barbara,
85 Cal.App.2d 776, 782-98, 194 P.2d 148, 152-60 (1948).
Appellants cite no authority for the proposition that a
purchaser of undeveloped property in a ‘“‘holding zone’’ has
iliin
a vested right to a change to more valuable zoning. There
is no such language in the County’s ordinance. Such a rule
would render low density zoning of undeveloped land mean-
ingless and would remove the discretion of local planners
to regulate such land.
IV.
A Property Owner Has No Right to Have His Property
Zoned so as to Maximize Its Market Value.
It is well-established that a down- zoning which substan-
tially reduces the market value of a parcel does not, in itself,
constitute a taking. Penn Central Transp. Ce. v. City of
New York, 438 U.S. 104, 131 (1978). .
Therefore, refusal to up-zone and, thus, make the prop-
erty substantially more valuable, clearly is not a taking.
It is well-established that there is no right to have property
zoned to maximize its market value, or, in em
This text is long and has been trimmed here. Open the source document for the complete record.
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