# Record and brief — Gilliland v. City of Palmdale > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1412%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 456 U.S. 967 ## Text JUoWE}e}S jeuonoipsunr 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1412%3A0. Public record. Not legal advice.