Petition for Writ of Certiorari — First English Evangelical Lutheran Church v. County of Los Angeles
Supreme Court brief1990
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No.
IN THE
Supreme Court of the Uniteh Sethe
OCTOBER TERM, 1989
NOV 2? 1883
(| JOSEPH F. SPANIOL, JR.
FIRST ENGLISH EVANGELICAL CLERK
LUTHERAN CHURCH OF GLENDATP;
a California corporation,
Petitioner,
vs.
COUNTY OF LOS ANGELES, CALIFORNIA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE CALIFORNIA COURT OF APPEAL
SECOND APPELLATE DISTRICT, DIVISION SEVEN
PETITION FOR WRIT OF CERTIORARI
JERROLD A, FADEM
MICHAEL M. BERGER*
RICHARD D. NORTON
of FADEM, BERGER & NORTON
A Professional Corporation
12424 Wilshire Boulevard
Post Office Box 250050
Los Angeles, Califorma 90025
(213) 207-2727
Attorneys for Pentioner
FIRST ENGLISH EVANGELICAL
LUTHERAN CHURCH OF GLENDALE
*Counsel of Record
Lawyers Brief Service / Legal Pnnters / (213) 385-4457 / (714) 720-1510
=
QUESTIONS PRESENTED
This case is back in this Court after this Court’s
remand to the California Court of Appeal. (First English
~ Evangelical Lutheran Church v. County of Los Angeles
[1987] 482 US 304) Because the California Court of
Appeal responded to this Court’s remand by dismissing
the case as a matter of law — instead of returning it to
the superior court for trial to determine whether a Fifth
Amendment taking had in fact occurred — the following
questions now need decision by this Court:
1. Did the California Court of Appeal violate this
Court’s remand order in this case when it refused to have
a trial court determine what the facts are and whether
those facts are a Fifth Amendment taking?
2. Did the California Court of Appeal deny Peti-
tioner due process of law when, instead of ordering a
trial to determine the facts in this case, the Court of
Appeal took selective judicial notice (over Petitioner’s
objections) of a few documents from the County’s plan-
ning files and used the judicially noticed materials to
“prove” the facts needed to support dismissal, thereby —
for a second time — dismissing this case on its pleadings
without fact finding?
3. Can a land use regulation adopted for a proper
purpose violate the Fifth Amendment’s Just Compensa-
tion Clause if it takes private property for public use
without compensation?
4. Does a land use regulation vioiate this Court’s
standard for a taking (i.e., deprivation of “economically
viable use”) when the regulation prohibits construction
of buildings but the Court of Appeal concludes that
economic uses are available to the property owner be-
cause: “[mJeals could be cooked, games played, lessons
given, tents pitched” (App A, p 18)?
wie
Can it be determined that a regulation permits
“economically viable use” without a trial and evidence?
5. Does a land use regulation violate this Court's
alternative standard for a taking (i.e., interference with
“reasonable, investment-backed expectations”) when the
regulation prohibits any attempt to redevelop the prop-
erty for its historic retreat and conference center use
after its destruction in an unusually large storm?
Can it be determined whether a regulation interferes
with “reasonable, investment-backed expectations” with-
out a trial and evidence?
6. Did the California Court of Appeal’s abject accep-
tance of the County’s rationalizations for its regulation
at face value, rather than subjecting them to a more
Stringent standard of review because they take signifi-
cant property interests from Petitioner violate the stand-
ards established by this Court in Nollan v. California
Coastal Commn. (1987) 483 US 825?
7. In light of this Court’s holding in Nollan that
property owners have a right to build on their property,
subject only to reasonable regulation, did the California
Court of Appeal violate this Court’s standards when it
upheld the County’s ordinance because it “only”
prohibits construction or reconstruction of buildings?
(App A, p 18)
PARTIES TO THE PROCEEDING
All parties to this Petition are listed in the caption.
- iii -
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED i
PARTIES TO THE PROCEEDING il
LIST OF APPENDICES vii
TABLE OF AUTHORITIES viii
OPINIONS BELOW l
JURISDICTION l
CONSTITUTIONAL AND
REGULATORY PROVISIONS 4
~ STATEMENT OF THE CASE 4
RAISING THE FEDERAL QUESTIONS 6
-iv-
Page
REASONS FOR CRANTING THE WRIT 7
1. THE COURT OF APPEAL DEFIED THIS
COURT’S INSTRUCTION TO PERMIT
A FACTUAL DETERMINATION OF
WHETHER A TAKING HAD OCCUR-
RED. PURSUING ITS WILFULL AND
IDIOSYNCRATIC COURSE, THE CALI-
FORNIA COURT OF APPEAL PERMIT-
TED THE COUNTY TO “PROVE”
ITS CASE BY JUDICIAL NOTICE AT
THE APPELLATE LEVEL, THEREBY
DENYING FIRST CHURCH DUE PROC-
ESS OF LAW 7
2. THE COURT OF APPEAL IGNORED
THIS COURT’S INSTRUCTION IN THIS
CASE THAT THE FIFTH AMENDMENT
“... IS DESIGNED NOT TO LIMIT
THE GOVERNMENTAL = INTERFER-
ENCE WITH PROPERTY RIGHTS PER
SE, BUT RATHER TO SECURE
COMPENSATION IN THE EVENT OF
OTHERWISE PROPER INTERFERENCE
AMOUNTING TO A TAKING.” 12
: A
This Court’s Guidance for Remand 12
B
“Flood Protection” Does Not Justify
an Uncompensated Regulatory Taking is
Page
3. THE COURT OF APPEAL IGNORED
THIS COURT’S STANDARDS FOR
DETERMINING WHEN A_ REGULA-
TION VIOLATES THE FIFTH AMEND-
MENT: /.£., IF IT DEPRIVES THE
PROPERTY OWNER OF “ECONOMI-
CALLY VIABLE USE” OR INTERFERES
WITH THE PROPERTY OWNER’S
“REASONABLE, INVESTMENT-
BACKED EXPECTATIONS” FOR USE
OF THE PROPERTY 16
4. THE COURT OF APPEAL MISCON-
STRUED THIS COURT’S CASES BY
CONCLUDING THAT ALL REASON-
ABLE USE OF A PARCEL OF PROP-
ERTY CAN CONSTITUTIONALLY BE
PROHIBITED WITHOUT COMPENSA-
TION 18
A
The Court of Appeal’s Error is Shown
by it’s Need to Distinguish an Opinion
on Which This Court Expressly Relied in
This Case 20
B
First Church Experiences No “Reciprocity
of Advantage” in Being Prevented From
Making Reasonable Use of its Property 22
- Vi -
Page
5. THE COURT OF APPEAL IGNORED
THIS COURT’S HOLDING THAT PROP-
ERTY OWNERS HAVE A RIGHT TO
BUILD ON THEIR PROPERTY, SUB-
JECT ONLY TO REASONABLE REGU-
LATION OF THEIR CONDUCT 24
6. THE -COURT OF APPEAL VIOLA-
TED THIS COURT’S REQUIREMENT
THAT GOVERNMENT REGULATIONS
WHICH ABRIDGE THE’ RIGHTS
OF PRIVATE PROPERTY OWNERS
BE SUBJECTED TO HEIGHTENED
SCRUTINY 25
CONCLUSION 28
- Vii -
Page
LIST OF APPENDICES
APPENDIX A
OPINION, CALIFORNIA COURT OF
APPEAL, SECOND APPELLATE DIS-
TRICT, DIVISION SEVEN, FILED MAY
26, 1989 A-1
APPENDIX B
ORDER MODIFYING OPINION AND
DENYING REHEARING, CALIFORNIA
COURT OF APPEAL, SECOND APPEL-
LATE DISTRICT, DIVISION SEVEN
FILED JUNE 23, 1989 B-1
APPENDIX C
ORDER DENYING REVIEW, CALI-
FORNIA SUPREME COURT, FILED
AUGUST 25, 1989 C-1
APPENDIX D
LOS ANGELES COUNTY ORDINANCE
NO. 11,855 AND LOS ANGELES
COUNTY CODE SECTIONS 22.44.010,
22.44.020, 22.44.220, 22.44.230 D-1
- Vili -
TABLE OF AUTHORITIES
‘Page
Cases
Agins v. City of Tiburon (1979)
24 C 3d 266 2, 5, 23, 28
Agins v. City of Tiburon (1980)
447 US 255 13
Andrus v. Allard (1979) :
444 US $1 17
Annicelli v. Town of South Kingstown
(RI 1983) 463 A 2d 133 14, 15
Connolly v. Pension Benefit Guaranty
Corp. (1986) 475 US 211 17
Dooley v. Town of Fairfield (Conn 1964)
197 A 2d 770 15
Garner v. Louisiana (1961)
368 US 157 10
Goldblatt v. Hempstead (1962)
369 US 590 19
Hadachek v. Sebastian (1915)
239 US 394 19 .
Hager v. Louisville & Jefferson
County (Ky 1953) 261 SW 2d 619 15
Hall v. City of Santa Barbara
(9th Cir 1986) 813 F 2d 198 16
‘
- 1X -
Page
Hodel v. Irving (1987)
481 US 704
Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc. (1981)
452 US 264 13,
Kaiser Aetna v. U.S. (1979)
444 US 164 13, 14, 16,
Keystone Bituminous Coal Assn. v.
DeBenedictis (1987) 480 US 470 —s 99, 113, 17, 18,
Kirby Forest Indus., Inc. v. U.S. (1984)
467 US 1 13,
Loretto v. Teleprompter Manhattan
CATV Corp. (1982) 458 US 419 13,
Loveladies Harbor, Inc. v. U.S.
(Cl Ct 1988) 15 Cl Ct 381
MacDonald, Sommer & Frates v.
County of Yolo (1986)
477 US 340 13,
MacGibbon v. Board of Appeals
(Mass 1964) 200 NE 2d 254
Maryland Port Administration v. QC Corp.
(Md 1987) 529 A 2d 829
Mattoon v. City of Norman (Okla 1980)
617 P 2d 1347
Miller v. Schoene (1928)
276 US 672
17
29
17
15
: Page
Morris County Land Imp. Co. v. Township
of Parsippany-Troy Hills (NJ 1963)
193 A 2d 232 15
Mugler v. Kansas (1887)
123 US 623 19, 20
Nollan v. California Coastal Commn. (1987) 2, 13
483 US 825 17, 24-28
Ohio Bell Telephone Co. v. Pub. Util.
Commn. (1937) 301 US 292 10, 11
Orion Corp. v. State (1987)
109 Wash 2d 621 29
Parranto Brothers, Inc. v. City of New Brighton
(Minn App 1988) 425 NW 2d 585 29
Penn Central Transp. Co. v. City of
New York (1978) 438 US 104 13, 16, 17, 23
Pumpelly v. Green Bay Company
13 Wall. 166 20-22
PruneYard Shopping Center v. Robins (1980)
447 US 74 17
Ruckelshaus v. Monsanto Co. (1984)
467 US 986 16, 17
San Diego Gas & Elec. Co. v. City of
San Diego (1981) 450 US 621 14, 21
Schad v. Borough of Mount Ephraim (1981)
452 US 61 13
Page
Seawall Associates v. City of New York (1989)
74 NY 2d 92 27, 28
State v. Johnson (Me 1970)
265 A 2d 711 15
Turtle Mountain Band of Chippewa
Indians v. U.S. (Ct Cl 1974)
490 F 2d 935 11
U.S. v. Locke (1985)
471 US 84 17
U.S. v. Riverside Bayview Homes (1985)
474 US 121 13, 17
U.S. v. Security Indus. Bank (1982)
459 US 70 _ 13
Williamson County Regional Planning
Commn. v. Hamilton Bank (1985)
473 US 172 13, 17
Statutes
28 USC §1257(a) 3
Constitution
United States Constitution
Fifth Amendment 3-7, 12-14, 16, 28
Fourteenth Amendment 4-6
- Xli -
Publications
Bauman, A True Landmark Decision (1987)
39 Land Use Law & Zoning Digest, no 8 at 3
Bauman, The Supreme Court Becomes
Serious About Takings Law: The First
Church, Keystone and Irving Cases (1987)
10 Zoning & Planning L. Rep. 145
Best, The Supreme Court Becomes Serious
About Takings Law: Nollan Sets New
Rules For Exactions (1987)
10 Zon. & Plan. L. Rep. 153
Bosselman & Stroud (1987) The Current
Status of Development Exactions,
14 Fla. Env’t & Urb. Issues 8, 9
Bozung & Alessi, Recent Developments
in Environmental Preservation and
the Rights of Property Owners (1988)
20 The Urban Lawyer 969
Comment, He Who Calls the Tune Must
Pay the Piper: Compensation for Regulatory
Takings of Property After First English
Evangelical Lutheran Church v. County
of Los Angeles (1988) 53 Mo. L. Rev. 70
Comment (1987) 17 Golden Gate U.L. Rev. 197
Comment (1987) 21 Creighton L. Rev. 213
Comment (1988) 39 Mercer L. Rev. 1033
Page
1,8
26
26
14
27
27
27
Comment, 28 Nat. Res. J. 395
Comment (1988) 28 Nat. Res. J. 585
Comment, 54 Brooklyn L, Rev. 991
Commentary (1987) 39 Land Use Law &
Zoning Digest, no 8 at 3
Curtin & Durkee, Money for the Taking:
When Land Use Regulation Goes
Too Far (1988) 1 Hofstra Real Prop.
L.J. 109
Doheny & Edmondson, Supreme Court
Land Use Rulings: Responsible
Controls Are Not Endangered (1988)
1 Hofstra Real Prop. L.J. 95
Falik & Shimko, The Takings Nexus:
The Supreme Court Chooses a New
Direction in Land-Use Planning:
A View From California (1988)
39 Hast. L.J. 359
Freilich, Francis & Popejoy, State and
Local Government at the Crossroads:
A Bitterly Divided Supreme Court
Reevaluates Federalism in the Bicentennial
Year of the Constitution (1987)
19 The Urban Lawyer 791
Ginsburg, /ntroduction to A Practitioner's
Symposium on the Recent Supreme
Court Takings Cases (1988)
1 Hofstra Prop. L.J. 69
Nm
Lawrence, Means, Motives, and Takings:
The Nexus Test of Nollan v. California
Coastal Commission (1988)
12 Harv. Env. L. Rev. 231
Mandelker, Land Use Law (2d ed 1988)
§2.23 at 45
Marsh & Rosenthal, At Long Last, The
Supreme Court Speaks Out on the
“Taking” Issue (No. 2 1987)
5 Cal. Real Prop. J. 1
Merriam, Commentary on First English
and Nollan (1988) 1 Hofstra Real
Prop. L.J. 83
Note (1988) 48 La. L. Rev. 947
Note (1988) 10 Campbell L. Rev. 275
Peterson, Land Use Regulatory “Takings”
Revisited: The New Supreme Court
Approaches (1988) 39 Hast. L.J. 335
Pollot, The Effect of the Federal Takings
Executive Order (1989) 41 Land Use Law
& Zoning Digest, no 5 at 3
Schnidman, The United States Supreme
C ourt Finally Addresses the Regulatory
Taking Issue (1987) 14 Fla. Env. & Urban
Issues, no 4 at 2
26
26
8, 26
2, 8, 27
- XV -
Page
Siemon & Larsen, The Taking Issue Trilogy:
The Beginning of the End? (1988)
33 J. Urb. & Contemp. L. 169 2
Strong, On Placing Property Due Process
Center Stage in Takings Jurisprudence
(1988) 49 Ohio St. L.J. 591 2
Supreme Court, 1986 Term: Leading Cases
(1987) 101 Harv. L. Rev. 119 27
Taub, Exactions, Linkages, and Regulatory
Takings: The Developer's Perspective (1988)
20 The Urban Lawyer 515 27
Uelmen, The Court Sits Down to a Full
Plate, ABA Journal (California Edition)
CE-1 (Oct 1988) 29
Van Alstyne, Taking or Damaging by Police
Power: The Search for Inverse Condem-
nation Criteria (1970)
44 So. Cal. L. Rev. 1 15
PETITION FOR WRIT OF CERTIORARI
The Petitioner (First Church) respectfully prays that a
Writ of Certiorari issue to review a judgment of the Califor-
nia Court of Appeal, Second Appellate District, Division
Seven.
OPINIONS BELOW
The decision of the Court of Appeal (App A) is reported
at 210 Cal App 3d 1353. The order modifying the opinion
and denying rehearing (App B) was not separately published.
Chief Justice Lucas and Justices Panelli and Kaufman
voted to grant review, but the California Supreme Court
denied review. The order of the California Supreme Court
denying review (App C) was not published.
The proceedings in the California courts before this
Court’s 1987 decision in this case appear in this Court's file
in case no. 85-1199.
JURISDICTION
In this Court’s 1987 decision in this case (described by
commentators on both sides of the issue as a landmark and
blockbuster,! the centerpiece of this Court’s recent takings
Commentary (1987) 39 Land Use Law & Zoning Digest, no 8 at
A True Landmark Decision (1987) 39 Land Use Law &
Digest, no 8 at 3; Bauman, The Supreme Court Becomes
Takings Law: The First Church, Keystone and Irving
987) 10 Zoning & Planning L. Rep. 145, 146; Falik &
The Takings Nexus: The Supreme Court Chooses a New
in Land-Use Planning: A View From California (1988) 39
Freilich, Francis & Popejoy, State and Local Govern-
Crossroads: A Bitterly Divided Supreme Court
(continued)
th
bE
>
:
=. -
decisions,? and the most significant land use decision in the
last 50 years> ), this Court struck down, as contrary to the
Fifth Amendment, California’s rule (from Agins v. City of
Tiburon [1979] 24 C 3d 266) that the only remedy for one
whose property is taken by a government regulation is in-
validation of the regulation.
In the case at bench (before this Court’s 1987 decision),
the trial court struck the regulatory taking allegations from
the complaint because of the Agins rule. Thus, after this
Court annulled the Agins rule and established the Constitu-
tionally required remedy as compensation, this Court
remanded this case to the Califoria courts to determine
whether the facts showed a taking which required compensa-
tion.
Two years later, the Court of Appeal concluded — with-
out trial, and thus without any factual record (the record is
only the complaint and a motion to strike allegations from it)
— that the facts do not show a taking.’ Thus — for a second
time — the Court of Appeal denied First Church a trial on its
taking claim.
This Court’s 1987 decisions in this case and in Nollan v.
California Coastal Commn. (1987) 483 US 825 seemed
intended to inform the California courts that they had not
(ftn. continued)
Reevaluates Federalism in the Bicentennial Year of the Constitution
(1987) 19 The Urban Lawyer 791, 794; Peterson, Land Use
Regulatory “Takings” Revisited: The New Supreme Court Ap-
proaches (1988) 39 Hast. L.J. 335, 344; Pollot, The Effect of the
Federal Takings Executive Order (1989) 41 Land Use Law &
Zoning Digest, no 5 at 3; Strong, On Placing Property Due Process
Center Stage in Takings Jurisprudence (1988) 49 Ohio St. LJ. 591,
598; Note (1988) 10 Campbell L. Rev. 275.
2 Siemon & Larsen, The Taking Issue Trilogy: The Beginning of
the End? (1988) 33 J. Urb. & Contemp. L. 169, 170, 181.
3 Falik & Shimko, 39 Hast LJ. at 1; see Note, 10 Campbell L.
Rev. at 292.
‘S$
provided the protections given property owners by the Fifth
Amendment. The result below shows that the California
courts do not yet appear to have received this Court's
message. Instead, the California courts continue on their
own course, gambling that this Court will not have the time
to correct their wi!full defiance.
Because of:
@ the importance of the legal issues in the remand
from this Court's 1987 decision,
@ the Court of Appeal’s erroneous denial of trial and
application of legal precepts which conflict with
clear holdings of this Court in this and other cases,
@ the Court of Appeal’s erroneous determination of
fact issues without any factual record, and
@ the subversion of this Court's decision in this case,
First Church prays that Certiorari be granted and the judg-
ment as to the regulatory taking cause of action be reversed
for trial to determine whether the facts in this case require
enforcement of the legal remedy established by this Court in
this case.
The Court of Appeal’s decision on remand from this Court
was filed May 26, 1989 (App A) and modified June 23, 1989
when rehearing was denied (App B). Three California
Supreme Court Justices, Chief Justice Lucas and Justices
Panelli and Kaufman, voted to grant review, but the timely
Petition for Review was denied by the California Supreme
Court August 25, 1989. (App C)
This Court's jurisdiction is invoked pursuant to 28 USC
§1257(a).
sie
CONSTITUTIONAL AND
REGULATORY PROVISIONS
Fifth Amendment, United States Constitution:
“... mor 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; .. .”
Pertinent Los Angeles County ordinances are in App D.
STATEMENT OF THE CASE
This case involves what used to be a conference center,
called Lutherglen, maintained for two decades by First
Church on 21 acres it owns in the mountains north of the
City of Los Angeles. The conference center was a place for
meetings, retreats, recreation, and camping.
In 1978, extraordinary storm runoff during an unusually
severe storm (and after fire denuded the watershed, eliminat-
ing its water retention capability) cawsed a creek which runs
through the property to overflow, destroying all the camp's
buildings.
Immediately after the storm, the County adopted Ordi-
nance no. 11855, temporarily prohibiting any construction in
the area. Two and a half years later, the temporary prohibi-
tion was made permanent. (App D contains both ordi-
nances.)
First Church sued the County and the County Flood Con-
trol District a month after the adoption of the temporary
ordinance. The only cause of action at issue on this Petition
is First Church's claim that the prohibition of any construc-
tion is a taking of all economically viable use of the property
~ -
within the meaning of the Fifth Amendment's Just Compen-
sation Clause, as applied through the Fourteenth Amendment.
(See 482 US at 313, fn 8.)
The effect of the ordinance is to convert Lutherglen into
part of the channel which collects mountain runoff and
transports the water to a downstream reservoir for storage.
Before this Court’s 1987 decision in this case, the trial
court granted the County's motion to strike all allegations
about the ordinance on the ground that the California
Supreme Court's decision in Agins forbade any action for
compensation for a regulatory taking of property.
The Court of Appeal affirmed, the California Supreme
Court denied review, and this Court took jurisdiction of the
appeal and remanded, holding that Agins violated the Fifth
Amendment because the Fifth Amendment requires compen-
sation for all governmental takings. The case was remanded
so the California courts could determine whether the facts of
this case entitle First Church to the remedy held available by
this Court in this case.
Instead of remanding for trial to determine what the facts
actually are, the Court of Appeal concluded that the facts
(present in the record only in the form of a complaint and a
motion to strike) could not state a cause of action. (App A)°
* When the temporary ordinance was replaced by a permanent
ordinance two and a half years later, First Church did not amend its
After this Court's decision in this case compelled recognition of the
cause of action for the first time, First Church told the Court of
Appeal that it planned to ask leave on remand to the tial court
(where pleadings can be amended) to amend its complaint to so
allege, as Agins is no longer a bar.
5 Over First Church's repeated objections, both before and after
filing its decision (see Pet for Rehearing 7). the Court of Appeal
took selective judicial notice of documents from the County's files.
(continued)
seq
First Church's timely Petition for Rehearing was denied
(App B), as was its Petition for Review in the California
Supreme Court (App C), although Chief Justice Lucas and
Justices Panelli and Kaufman voted to grant review.
RAISING THE FEDERAL QUESTIONS
When this case was before the trial court (before this
Court's 1987 decision in this case), no substantive taking
issues under the Fifth Amendment were argued, although the
issues were pled in the complaint. On its first trip through
the California court system, the only issue briefed and argued
at any level was the remedy question of whether the Fifth
Amendment required compensation for a regulatory taking.
After this Court decided the remedy issue in First
Church's favor in 1987, the substantive taking issues were
then ready for trial.
The substantive issues raised in this Petition were raised
and argued in supplemental briefs ordered by the Court of
Appeal after this Court’s remand. The Court of Appeal’s
constitutionally erroneous resolution of those issues was
raised in the Petition for Rehearing in the Court of Appeal
and in the Petition for Review in the California Supreme
Court.
The federal questions are properly before this Court.
(ftn. continued)
(App A, pp 19-22) That selective judicial notice — of only docu-
ments which supported the County but not documents requested by
First Church which would have made clear the factual conflict and
need for a trial — instead of remanding for trial court evaluation of
all the facts, deprived First Church of the ability to have a full and
fair wial and a decision based on evidence, in violation of First
Church's due process rights under the Fourteenth Amendment to the
U.S. Constitution.
9.
REASONS FOR GRANTING THE WRIT
1. THE COURT OF APPEAL DEFIED THIS
COURT’S INSTRUCTION TO PERMIT A
FACTUAL DETERMINATION OF WHETHER
A TAKING HAD OCCURRED. PURSUING
ITS WILFULL AND IDIOSYNCRATIC
COURSE, THE CALIFORNIA COURT OF
APPEAL PERMITTED THE COUNTY TO
“PROVE” ITS CASE BY JUDICIAL NOTICE
AT THE APPELLATE LEVEL, THEREBY
DENYING FIRST CHURCH DUE PROCESS
OF LAW
The Court of Appeal's decision violates the plain intent of
this Court's 1987 decision in this case that there be a factual,
evidentiary inquiry to determine whether the County's ac-
tions violated the Fifth Amendment's Just Compensation
Clause.
Based on the same facts which were before the Court of
Appeal, this Court said:
“... we... hold that on these facts the Califomia
courts have decided the compensation question
inconsistently with the requirements of the Fifth
Amendment.” (482 US at 310-311; emphasis
added.)
Based on no additional facts, the Court of Appeal dismiss-
ed the case without trial. When this Court issued its opinion
based “... on these facts ...” it envisioned a trial to deter-
mine what lay behind “.. . these facts .. .” as alleged in the
complaint.
Fact determination is the province of trial — not appellate
— courts.
However, instead of remanding for trial, the Court of
Appeal decided four fact issues without any evidentiary
—
as
record — a result which will certainly confound experts on
both sides who thought that the next step in this case would
be a trial to determine the facts.° With no trial court evalua-
tion of evidence, the Court of Appeal purported to find as
fact that:
@ the ordinance substantially advances a legitimate
governmental purpose;
@the ordinance does not take the use of First
Church’s property;
@ the moratorium was enacted for a reasonable
purpose; and
@ the 2 1/2 year moratorium was in effect for a rea-
sonable period of time.
None of those issues is capable of determination without
evidence. All of them require fact examination.’ One can-
. E.g., Bauman, 10 Zoning & Planning Law Report at 149, 150;
Bozung & Alessi, Recent Developments in Environmental Preserva-
tion and the Rights of Property Owners (1988) 20 The Urban
Lawyer 969, 1015; Curtin & Durkee, Money for the Taking: When
Land Use Regulation Goes Too Far (1988) 1 Hofstra Real Prop. L.J.
109, 122; Doheny & Edmondson, Supreme Court Land Use Rulings:
Responsible Controls Are Not Endangered (1988) 1 Hofstra Real
Prop. L.J. 95, 96; Freilich, Francis & Popejoy, 19 The Urban Lawyer
at 801; Ginsburg, /ntroduction to A Practitioner's Symposium on the
Recent Supreme Court Takings Cases (1988) 1 Hofstra Prop. L.J. 69,
70; Marsh & Rosenthal, At Long Last, The Supreme Court Speaks
Out on the “Taking” Issue (No. 2 1987) 5 Cal. Real Prop. L.J. 1, 2;
Merriam, Commentary on First English and Nollan (1988) 1 Hofstra
Real Prop. L.J. 83, 84, 85; Peterson, 39 Hast. LJ. at 337; Schnid-
man, The United States Supreme Court Finally Addresses the
Regulatory Taking Issue (1987) 14 Fla. Env. & Urban Issues, no 4 at
2, 3; Comment (1988) 28 Nat. Res. J. 585, 603; Note (1988) 48 La.
L. Rev. 947.
1 The Court of Appeal’s opinion abounds with other fact issues on
which the Court of Appeal assumed the outcome: the presence of
“substantial” structures on the property poses a threat to public
(continued)
a. FT
not determine whether the prohibition of this ordinance is
necessary to substantially advance a legitimate County inter-
est without evidence of the need or available alternatives if
there is a need. Nor can the extent of denial of use be deter-
mined without evidence of the remaining uses and their
value. Likewise, determining the reasonableness of both the
purpose and length of a moratorium requires weighing evi-
dence as to why 2 1/2 years are needed to decide what prob-
lem is presented and what methods of cure are available.
Appellate courts lack the experience, jurisdiction, and
racenaes to find facts. Without a record, no one can properly
do so.
(ftn. a
health and safety (App A, p 12); the public safety concerns at bench
are “far more dominant” than those in Keystone (App A, p 14 fn 9);
all use can be prevented if any use poses a threat to life and health
(App A, p 17); use can be denied if property cannot be used without
risking injury and death (App A, p 17); the subject property still has
buildable areas (App A, p 21); the restriction in this case is
“nowhere near as Draconian” as the destruction of trees in Miller v.
Schoene (1928) 276 US 672 (App A, p 23); remaining “uses” are
listed, without any evaluation of the economic viability of those uses
(App A, p 23); First Church will benefit because neighbors will be
prevented from building on the neighbors’ land (App A, pp 24-25).
$ Thus, for example, when the Court of Appeal concluded, that
“... here, the public safety concerns are far more dominant than
they are even in Keystone Bituminous Coal” (App A, p 14, fn 9;
emphasis added), there was no basis for saying that. In Keystone,
the statute was designed to prevent substantial damage to many
homes, public buildings, public water supplies, public roads,
pipelines, sewage lines, gas lines and water lines, all of which could
be devastated by excessive underground coal extraction. (480 US at
475, 485-486) The Court of Appeal had no evidence at bench from
which to make its contrast.
Nor is there evidence from which the Court of Appeal could
properly conclude that the radical use prohibition at bench is “...
nowhere near as Draconian .. .” as the requirement that ornamenta!
trees be cut down in Miller because of disease threatening others.
(App A, p 23)
-10-
When the Court of Appeal says “[w]e cannot say that
without a thorough-going study it would have been reason-
ably feasible to identify any structure which could be safely
permitted ...” (App A, p 27), the reason why the Court of
Appeal “cannot say” is that there is no evidence.
Indeed, a commentary which did the same thing as the
Court of Appeal (i.e., it compared the allegations in the
complaint to this Court’s takings standards) reached the
opposite conclusion from the Court of Appeal. That analysis
demonstrated that a taking which required compensation was
present at bench. (Comment, 28 Nat. Res. J. 395, 410-414)
While this does not prove First Church’s case, it casts doubt
on the Court of Appeal’s absolutist conclusions by showing
that an opposite conclusion is equally plausible. That shows
the need for trial.
Moreover, the Court of Appeal — over First Church’s
repeated objections — granted the County’s request to take
judicial notice of one-sidedly selected snippets of the Coun-
ty’s files in order to permit the County to “prove” the need
for this ordinance and the asserted lack of harm to First
Church from its enactment.
Such appellate judicial notice of facts which were NOT
judicially noticed by the trial court has been repeatedly
condemned by this Court as a violation of due process of
law. (E.g., Ohio Bell Telephone Co. v. Pub. Util. Commun.
[1937] 301 US 292; Garner v. Louisiana [1961] 368 US
157.)
In Garner, this Court condemned the very practice used
by the Court of Appeal in this case, i.e., permitting one party
to “prove” its case by judicial notice in the reviewing court
without allowing a trial court the opportunity to review the
evidence or even to consider the “evidence” proferred for
judicial notice:
soa..
“There is nothing in the records to indicate that the
trial judge did in fact take judicial notice of any-
thing. To extend the doctrine of judicial notice to
the length pressed by the respondent would require
us to allow the prosecution to do through argument
to this Court what it is required by due process to
do at the trial, and would be ‘to tum the doctrine
into a pretext for dispensing with a trial.’ [Cita-
tion.]” (368 US at 173)
In Ohio Bell, this Court described the proper function of
judicial notice:
“... notice, even when taken, has no other effect
than to relieve one of the parties to a controversy
of the burden of resorting to the usual forms of
evidence.” (301 US at 301)
To go further, and use the judicially noticed material to
prove the facts, as was done in the case at bench, is a denial
of due process. (Ohio Bell, 301 US at 300, 302) The type of
judicial notice employed at bench permits the decision maker
to “wander afield” and make decisions “without reference to
any evidence, upon proofs drawn from the clouds.” (Ohio
Bell, 301 US at 307)
The Court of Claims put it aptly:
“Assuming arguendo that it would be proper to
take judicial notice of these documents, the Govern-
ment’s effort to inject them at this [appellate]
Stage comes too late. Judicial notice is merely a
way of introducing evidence without resort to the
ordinary formalities; it does not circumvent the
requirements of orderly judicial procedure [cita-
tions], and one of those requirements is that appel-
late tribunals should ordinarily consider only what
has been properly presented to the trier of fact
below. [Citations.]” (Turtle Mountain Band of
Chippewa Indians v. U.S. (Ct Cl 1974] 490 F 2d
935, 945; emphasis added.)
«ii.
The tactic employed by the California Court of Appeal
denied First Church its due process right to trial of the facts.
2. THE COURT OF APPEAL IGNORED THIS
COURT’S INSTRUCTION IN THIS CASE
THAT THE FIFTH AMENDMENT “... IS
DESIGNED NOT TO LIMIT THE GOVERN-
MENTAL INTERFERENCE WITH PROPERTY
RIGHTS PER SE, BUT RATHER TO SECURE
COMPENSATION IN THE EVENT OF OTHER-
WISE PROPER INTERFERENCE AMOUNT-
ING TO A TAKING.”
A
This Court’s Guidance for Remand
Perhaps because, as the Court of Appeal acknowledged,
“.. the law is not well-settled in this area...” (App A,
p 10), this Court sought to provide guidance for its remand
by reviewing and summarizing some bedrock precepts:
“Consideration of the compensation question
must begin with direct reference to the language of
the Fifth Amendment, which provides in relevant
part that ‘private property [shall not] be taken for
public use, without just compensation.’ As its
language indicates, and as the Court has frequently
noted, this provision does not prohibit the taking of
private property, but instead places a condition on
the exercise of that power. [Citations.] This basic
understanding of the Amendment makes clear that
it is designed not to limit the governmental interfer-
ence with property rights per se, but rather to
secure compensation in the event of otherwise
proper interference amounting to a taking. Thus,
government action that works a taking of property
rights necessarily implicates the ‘constitutional
|,
obligation to pay just compensation.’ ([Citation.]”
(482 US at 314-315; emphasis added; Court’s
emphasis deleted.)
But the Court of Appeal acted as though it did not
understand.
The theme which permeates the Court of Appeal’s opinion
is that the County’s flood protection program was necessary,
and therefore, the program could not result in a taking of
First Church’s property.
That idea cannot be reconciled with this Court’s conclu-
sion that the purpose of the Just Compensation Clause of the
Fifth Amendment is to require government to compensate for
property taken in the course of “otherwise proper”
interference.
This Court’s holding in this case is a continuation of this
Court’s consistent holdings that a taking occurs either if the
regulation is invalid or, if valid, the regulation denies the
property owner economically viable use of his land.” As the
Court has repeatedly held, the fact that an ordinance properly
advances legitimate governmental interests cannot repeal
operation of the Just Compensation Clause of the Fifth
Amendment. (E.g., Loretto, 458 US at 425; Kaiser Aetna,
444 US at 174; U.S. v. Security Indus. Bank [1982] 459 US
70, 74-75) niin
’ Kirby Forest Indus., Inc. v. U.S. (1984) 467 US 1, 14; Agins v.
City of Tiburon (1980) 447 US 255, 260; Penn Central Transp. Co.
v. City of New York (1978) 438 US 104, 124; Kaiser Aetna v. U.S.
(1979) 444 US 164, 174 fn 8; MacDonald, Sommer & Frates v.
County of Yolo (1986) 477 US 340, 349 [“reasonable beneficial
use”]; Nollan v. California Coastal Commn. (1987) 483 US 825,
834; Keystone Bituminous Coal Assn. v. DeBenedictis (1987) 480
US 470, 485; U.S. v. Riverside Bayview Homes (1985) 474 US 121;
Williamson County Regional Planning Comma. v. Hamilton Bank
(1985) 473 US 172; Hodel v. Virginia Surface Mining & Reclama-
tion Assn., Inc. (1981) 452 US 264; Schad v. Borough of Mount
Ephraim (1981) 452 US 61.
ie eo
pS PPR aS oe ee ee oe eee
Se
The Court of Appeal’s belief in the virtue of the County's
action not only fails to satisfy the terms of the remand from
this Court, it is irrelevant. As a perceptive commentary
noted:
“(Revitalization of constitutional guarantees is the
most fundamental meaning of the case. First
English stands as a reminder that even ends which
benefit society do not justify means forbidden by
the Constitution as unfair to individuals. Its reaffir-
mation of the mutually dependent relationship
between liberty and property which lies at the heart
of the just compensation clause of the fifth amend-
ment may in the end prove to be its most signifi-
cant message.” (Comment, He Who Calls the Tune
Must Pay the Piper: Compensation for Regulatory
Takings of Property After First English Evangeli-
cal Lutheran Church v. County of Los Angeles
[1988] 53 Mo. L. Rev. 70, 120)
The Church whose case inspired that “revitalization” is
entitled to its protection.
B
“Flood Protection” Does Not Justify an Uncom-
pensated Regulatory Taking
When inquiring whether a governmental regulation in-
vokes the Just Compensation Clause of the Fifth Amend-
ment, the question is not the subject matter of the
governmental regulation but the impact on the private prop-
erty owner. (See, e.g., Kaiser Aetna, 444 US at 174; cases
collected in San Diego Gas & Elec. Co. v. City of San Diego
[1981] 450 US 621, 651-53 (Brennan, J, dissenting].)
A recent case from Rhode Island is instructive. In
Annicelli v. Town of South Kingstown (RI 1983) 463 A 2d
133, the Town had zoned the property owners’ land as being
in a “High Flood Danger District.” Nothing in the opinion of
a — os SO |
eid
«8B
the Rhode Island Supreme Court disagreed with the Town's
factual conclusions of flood danger. Nonetheless, placing
the subject property in a high flood danger zoning district —
which precluded development — required compensation.
As Aannicelli thus makes clear, there is nothing about
flood control which automatically immunizes flood control
ordinances from Constitutional examination. The late
Professor Arvo Van Alstyne, a nationally recognized author-
ity on iand use and inverse condemnation law, aptly ex-
pressed the point:
“{Ljand use regulations may be constitutionally
suspect if so narrowly conceived, with respect to
permissible uses, as to render the subject property
virtually valueless for normal private purposes
while permitting a few uses that appear to be calcu-
lated to promote broad community benefits of a
kind which could also be readily achieved through
an exercise of the power of eminent domain. For
example, flood plain developmental restrictions,
enacted to facilitate a community flood control and
storm drainage program, have sometimes been
held invalid in the absence of carefully drafted
provisions designed to permit maximum private
utilization of the subject property for purposes not
inconsistent with flood control objectives.” (Van
Alstyne, Taking or Damaging by Police Power:
The Search for Inverse Condemnation Criteria
[1970] 44 So. Cal. L. Rev. 1, 24-25; emphasis
added.)!°
10 Tilustrative flood control cases are Dooley v. Town of Fairfield
(Conn 1964) 197 A 2d 770; Morris County Land Imp. Co. v.
Township of Parsippany-Troy Hills (NJ 1963) 193 A 2d 232; Hager
v. Louisville & Jefferson County (Ky 1953) 261 SW 2d 619;
MacGibbon v. Board of Appeals (Mass 1964) 200 NE 2d 254; State
v. Johnson (Me 1970) 265 A 2d 711; Mattoon v. City of Norman
(Okla 1980) 617 P 2d 1347; Annicelli.
(continued)
- 16 -
Flood control ordinances are judged by the same Constitu-
tional standards as other land use regulations.
3. THE COURT OF APPEAL IGNORED THIS
COURT’S STANDARDS FOR DETERMINING
WHEN A REGULATION VIOLATES THE
FIFTH AMENDMENT: 1.E., IF IT DEPRIVES
THE PROPERTY OWNER OF “ECONOMI-
CALLY VIABLE USE” OR INTERFERES
WITH THE PROPERTY OWNER’S “REASON-
ABLE, INVESTMENT-BACKED EXPECTA-
TIONS” FOR USE OF THE PROPERTY
The law of just compensation is so lacking in bright divid-
ing lines (see App A, p 10) that the Justices of this Court
have frequently commented that whether the facts of any
particular case give rise to a taking must be decided on an
“ad hoc factual . . .” basis in each case.!!
(ftn. continued)
None of these cases are cited by the Court of Appeal, although
they were called to that Court's attention in the briefs. Instead, the
Court of Appeal makes a generalized citation to Professor Van
Alstyne’s article (App A, p 23), obviously failing to grasp the
professor’s conclusion quoted above.
a E.g., Ruckelshaus, 467 US at 1005; Kaiser Aetna, 444 US at
175; Penn Central, 438 US at 124. The “ad hoc factual” nature of
the inquiry by itself militates against deciding the taking issue (as
the Court of Appeal did) without any evidentiary inquiry. As
expressed in Hall v. City of Santa Barbara (9th Cir 1986) 813 F 2d
198, 201-202:
“This admonition is perhaps nowhere so apt as in cases
involving claims of inverse condemnation where the -
Supreme Court itself has admitted its inability ‘to
develop any “set formula”’ for determining when
compensation should be paid ... While dismissal of a
complaint for inverse condemnation is not always
inappropriate, such a dismissal must be reviewed with
(continued) —
= 9.
The Court has, however, announced some guidelines. As
summarized earlier, the Court has repeatedly held that a
taking occurs if the government regulation denies the prop-
erty owner “economically viable use” of his property (cases
cited at p 13, fn 9) or if the regulation substantially interferes
with the property owner's “Tessonenie, | investment-backed
expectations” for the use of the property. !
Although the Court of Appeal mentions the first of these
standards (App A, pp 13-14), there is no way — without
evidence — that amy court can determine whether the
County's regulation permitted “economically viable” use or
not. To say, as the Court of Appeal does, that First Church
can light campfires and pitch tents (App A, p 18) does not
even approach an analysis of whether that is an “econo-
mically viable” use of 21 acres of land. 3
(ftn. continued) _
particular skepticism to assure that the plaintiffs are not
denied a full and fair opportunity to present their claims.”
(Emphasis added.)
12 Penn Central, 438 US 104; Andrus v. Allard (1979) 444 US 51:
Kaiser Aetna, 444 US 164; PruneYard Shopping Center v. Robins
(1980) 447 US 74; Hodel v. Virginia Surface Min. & Recl. Assn.
(1981) 452 US 264; Loretto v. Teleprompter Manhattan CATV
Corp. (1982) 458 US 419; Kirby Forest, 467 US 1; Ruckelshaus v.
Monsanto Co. (1984) 467 US 986; U.S. v. Locke (1985) 471 US 84;
Williamson County, 473 US 172; Riverside Bayview, 474 US 121;
Connolly v. Pension Benefit Guaranty Corp. (1986) 475 US 211;
MacDonald, 477 US 340; Keystone, 480 US 470, 493 et seg.; Hodel
v. Irving (1987) 481 US 704, 715; Nollan, 483'US at 833, fn 2.
is Compare Keystone, for example, a case heavily relied on by the
Court of Appeal (App A, pp 14, 17, 24), in which evidence had been
introduced from which the Court concluded that the need for the
Statutory property restriction was great and the impact on the prop-
erty owner was minimal. While the property owners lost in Key-
stone, they lost because the evidence failed to show a Constitutional
violation, not —— as here —— because the reviewing court decided
without evidence that no such cause of action could even be pled.
- 18 -
Nor is there any attempt in the Court of Appeal’s opinion
to apply the “reasonable, investment-backed expectations”
standard, although that standard was called to the Court of
Appeal’s attention by First Church, was applied by this Court
to a facial attack in Keystone (480 US at 493 et seq.), and is
discussed in many of the law review articles cited in the
Court of Appeal’s opinion (see App A, p 7, fn 7).
The Court of Appeal’s defiant opinion ignores this
Court's repeatedly expressed standards for determining
whether a regulation takes private property.
4. THE COURT OF APPEAL MISCONSTRUED
THIS COURT’S CASES BY CONCLUDING
THAT ALL REASONABLE USE OF A PAR-
CEL OF PROPERTY CAN CONSTITUTION.
ALLY BE PROHIBITED WITHOUT COMPEN.-
SATION
The Court of Appeal said it perceived a “public safety
exception” in this Court's jurisprudence which would permit
the County to preclude all reasonable use of First Church's
property without compensation. (App A, p 8 et seq.)
Wrong.
The extent of the use prohibition approved by the Court of
Appeal in this case goes beyond anything this Court has ever
countenanced. To be sure, the law has always been that an
activity which is a nuisance to neighbors has no right to
exist. But concluding that @ particular activity may be a
nuisance, and that that activity may be prohibited, is far from
saying that all reasonable use of an entire property may be
sacrificed for the public good without compensating the
owner. And no decision of this Court has ever gone that far.
The Court of Appeal’s jumping off point for this holding
was the following sentence in this Court's opinion in this
case:
-19-
“We accordingly have no occasion to decide ...
whether the county might avoid the conclusion that
a compensable taking had occurred by establishing ~
that the denial of all use was insulated as a part of
the State’s authority to enact safety regulations.
[Citations.]” (482 US at 313, emphasis added.)
If this Court intended that statement to be read as broadly
as the Court of Appeal interpreted it, then this Court could
have directly established that immunity as a matter of law.
This Court did not. This Court remanded for trial to deter-
mine whether the County could prove that the draconian
restriction imposed on First Church and the need which
supposedly supported the County's ordinance were sufficient
to require consideration of such a rule. The passage in this
Court’s opinion begins, “[w]e accordingly have no occasion
to decide ...” For the Court of Appeal to draw an ironclad
rule from this Court's refusal to consider an issue is a leap
due process of law does not countenance.
Moreover, this Court's comment cannot be read in a
vacuum, It is necessarily tied to the cases cited as authority
for the proposition, which were obviously intended to illus-
trate the lack of breadth of the statement. Those cases
plainly demonstrate the Court of Appeal's error in its carte
blanche blessing of the County's action.
In Mugler v. Kansas (1887) 123 US 623, operation of a
brewery was precluded. In Hadachek v. Sebastian (1915)
239 US 394, operation of a brick manufacturing facility in a
residential area was precluded. In Goldblatt v. Hempstead
(1962) 369 US 590, operation of a rock quarry was
precluded. A clear picture emerges: in each case, it was a
specific use which the Court held could be prevented because
that specific use constituted a nuisance which was trouble-
some to others. In none of this Court's cases has the Court
held that ail reasonable use could be prevented without
compensation.
+ 2
A
The Court of Appeal’s Error is Shown by it’s
Need to Distinguish an Opinion on Which This
Court Expressly Relied in This Case
The Court of Appeal’s opinion disregards this Court's
analysis by distinguishing (rather than applying) one of the
cases on which this Court based its 1987 decision.
The Court of Appeal relied heavily on the holding in
Mugler. (App A, pp 10-13) In so doing, the Court of Appeal
emphasized the fact that “[t}he Mugler court distinguished
Pumpelly v. Green Bay Company 13 Wall. 166." (App A,
p 11; emphasis added.)
The error in that anelysis (and the consequent error in
heavily relying on Mugler while disregarding Pumpeily) is
that, in this case, this Court relied on the analysis in
Pumpelly, employ'ag that analysis in the way the Court of
Appeal rejected. As this Court put it in this case:
“It has also been established doctrine at least
since Justice Holmes’ opinion for the Court in
Pennsylvania Coal Co. v. Mahon ... that ‘[t)he
general rule at least is, that while property may be
regulated to a certain extent, if regulation goes too
far it will be recognized as a taking.’ [Citation.]
While the typical taking occurs when the govern-
ment acts to condemn property in the exercise of
its power of eminent domain, the entire doctrine of
inverse condemnation is predicated on the proposi-
tion that a taking may occur without such formal
proceedings. /nm Pumpelly v. Green Bay Co. [cita-
tion], construing a provision of the Wisconsin
Constitution identical to the Just Compensation
Clause, this Court said:
“ “It would be a very curious and unsatis-
factory result if ... it shall be held that
if the government refrains from the
‘ —
+
absolute conversion of real property to
the uses of the public it can destroy its
value entirely, can, in effect, subject it to
total destruction without making any
compensation, because, in the narrowest
sense of that word, it is not taken for the
public use.’
“Later cases have unhesitatingly applied this prin-
ciple. ([Citations.]” (482 US at 316-317; initial
emphasis added; final emphasis, the Court's.)
The Court of Appeal's analytical error is confirmed by its
conclusion that “[e)recting a dam which permanently sub-
merges a property owner's land under a lake [i.e., the facts in
Pumpeilly) is one thing, a law limiting his use of that land
quite another.” (App A, p 12)
That Court of Appeal conclusion_is utterly at odds with
what this Court said in this case when it applied Pumpelly
Moreover, this Court's opinion in this case represents an
adoption by the Court of the dissenting views of Justice
Brennan in San Diego Gas & Elec. Co. v. City of San Diego
(1981) 450 US 621."* As expressed there (450 US at 652)
“Police power regulations such as zoning ordi-
nances and other land-use restrictions can destroy
the use and enjoyment of property in order to
promote the public good just as effectively as
formal condemnation or physical invasion of prop-
erty. From the property owner's point of view, it
may matter little whether his land is condemned or
flooded, or whether it is restricted by regulation to
use in its natural state, if the effect in both cases
is to deprive him of all beneficial use of it.”
(Brennan, J, dissenting on behalf of 4 Justices;
14 That First Engiish derives from Justice Brennan's San Diego
Gas dissent is evident from First English's repeated citation of that
dissent as authoritative. (482 US at 315, 316 fn 9, 318)
OEE
-.
additionally, Rehnquist, J, [the eventual author of
First English] while concurring with the majority’s
procedural ruling, agreed with Justice Brennan’s
substantive analysis [450 US at 633]; emphasis
added.)
The Court of Appeal’s analysis is founded on a premise
rejected by this Court. In refusing to apply Pumpelly, and —
instead — applying its antithesis, the Court of Appeal feebly
tried to rationalize its evasion of this Court’s remand.
B
First Church Experiences No “Reciprocity of
Advantage” in Being Prevented From Making
Reasonable Use of its Property
This Court’s explicit rationale for permitting the use of
the police-power to preclude noxious uses is that all property
owners — including the regulated owner — benefit from the
restrictions placed upon each for the good of the community:
“The Court’s hesitance to find a taking when the
state merely restrains uses of property that are
tantamount to public nuisances is consistent with
the notion of ‘reciprocity of advantage’ that Justice
Holmes referred to in Pennsylvania Coal. Under
our system of government, one of the state’s pri-
mary ways of preserving the public weal is restrict-
ing the uses individuals can make of their property.
While each of us is burdened somewhat by such
restrictions, we, in turn, benefit greatly from the
restrictions that are placed on others.”!>
That analysis by this Court demonstrates that a regulation
cannot Constitionally prevent all, or substantially all, use of
15 Keystone, 480 US at 491. (Emphasis added.) Please note that
the Court is talking in terms of restricting uses, not preventing all
economically viable use.
becca
4.
property. The owner of property who is prevented from
making any reasonable use of his land cannot obtain any
“reciprocity of advantage,” or “benefit greatly” — or benefit
at all — by “mutual” restrictions placed on others, as a
totally restricted owner is precluded by nonuse from receiv-
ing any benefit. This “reciprocity of advantage” theory —
which is the central justification for substantial use preclu-
sion —— can operate only in the context of all owners being
permitted to make some reasonable, economically viable, use
of their land.
The Court of Appeal recognized the necessity for there to
be a “reciprocity of advantage” to justify restricting the use
of First Church’s property. But — again without any evi-
dence to support it — the Court of Appeal assumed that First
Church received some reciprocal “advantage” based on the
Court of Appeal’s further assumption that building campfires
and pitching tents gave First Church reasonable use of its
property. (App A, pp 24-25)
The concept of “reciprocity of advantage” can be difficult
to understand and apply in routine zoning situations.
However, to the extent that it has any force, its application is
limited to those situations in which all property owners are
permitted to make economically viable use of their land,
even though it may not be the most profitable use. (See, e.z.,
Penn Central, in which the owner of New York’s Grand
Central Station was precluded from building a large office
building over the terminal but was allowed to make a
profitable use. Penn Central benefitted because the
property’s neighbors could not overbuild surrounding par-
cels. Likewise, in Agins [relied on at App A, p 15}, the
property was zoned to permit from 1 to 5 homes, which is all
the property owners wanted. Similar restrictions on their
neighbors would provide some “reciprocal” benefit by
preserving the luxury character of the neighborhood.)
Nothing in either this Court’s holdings or their rationale
supports the notion that an individual may be singled out to
~ 24.
be forced to “donate” — without compensation — all reason-
able use of his property for the greater good of the
community.
5. THE COURT OF APPEAL IGNORED THIS
COURT’S HOLDING THAT PROPERTY OWN-
ERS HAVE A RIGHT TO BUILD ON THEIR
PROPERTY, SUBJECT ONLY TO REASON-
ABLE REGULATION OF THEIR CONDUCT
A fundamental basis for the Court of Appeal’s decision is
the factual assertion that the ordinance did not prevent use, it
“only” prevented construction of buildings. (App A, p 18)
How substantial is an impact of the preclusion of build-
ings on a conference and recreational site which takes hours
to reach from the homes of First Church’s members is a fact
question for trial.
Equally important, the Court of Appeal’s conclusion (i.e.,
that the prevention of construction of buildings cannot be a
taking as a matter of law) is erroneous.
This Court addressed this issue in Nollan. Whether local
government may prevent building without compensation (on
the theory that construction is a “privilege” or “benefit”
bestowed by government [as California courts ruled before
Nollan], rather than a right of the property owner) was dealt
with directly:
“But the right to build on one’s own property ...
even though its exercise can be subjected to legiti-
mate permitting requirements ... cannot remotely
be described as a ‘governmental benefit.’” (483
US at 834, fn 2; emphasis added.)
The right to build is just that — a right. To take that right
— as this ordinance does (App A, p 18) — requires
compensation.
a o
Although the Court of Appeal disagrees, this Court has
plainly announced that the rules have changed. Citizens have
a right to build on their land, subject only to reasonable
regulation, not prohibition.
6. THE COURT OF APPEAL VIOLATED THIS
COURT’S REQUIREMENT THAT GOVERN-
MENT REGULATIONS WHICH ABRIDGE
THE RIGHTS OF PRIVATE PROPERTY OWN-
ERS BE SUBJECTED TO HEIGHTENED
SCRUTINY
The Court of Appeal examined the County’s rationaliza-
tions for its regulation by a relaxed standard of review which
this Court disapproved two years ago:
In Nollan, the Court announced the proper standard:
“We view the Fifth Amendment’s property clause
to be more than a pleading requirement, and com-
pliance with it to be more than an exercise in
cleverness and imagination. As indicated earlier,
our cases describe the condition for abridgement of
property rights through the police power as a
‘substantial advanc[ing}’ of a legitimate State
interest. We are inclined to be particularly careful
about the adjective where the actual conveyance of
property is made a condition to the lifting cf a land
use restriction, since in that context there is
heightened risk that the purpose is avoidance of
the compensation requirement rather than the
stated police power objective.” (483 US at 841;
some emphasis added.)!
16 As this Court elaborated:
“... Our opinions do not establish that these standards are
the same as those applied to due process or equal
protection claims. To the contrary, our verbal formula-
(continued)
- 6.
Being “particularly careful” in examining the basis of a
regulation, as Nollan requires, mandates that the courts give
substantially less deference to the rationalizations put forth
by the government than in pre-Nollan times. Regulations can
no longer be judicially sustained merely because there is
some rational basis for believing that the challenged action
might be necessary. (483 US at 834-835, fn 3) Nor are they
to be routinely approved because of some _ generalized
presumption of validity. (See App A, p 25)
Professor Daniel Mandelker, who describes himself as a
“police power hawk,” and who favors the power of govem-
ment to regulate, explained the matter clearly in the recent
rewriting of his nationally recognized text:
“Nollan’s most important holding is the heightened
standard of judicial review it adopted for determin-
ing whether a land use regulation substantially
advances legitimate governmental interests. This
heightened judicial review standard, if the Court
meant it to apply to all taking cases, substantially
strengthens judicial review of land use regulations
under the taking clause.” (Mandelker, Land Use
Law [2d ed 1988] §2.23 at 45; emphasis added.)!”
(ftn. continued) ; ’
tions in the takings field have generally been quite
different. We have required that the regulation ‘sub-
stantially advance’ the ‘legitimate state interest’ sought
to be achieved, [citation], mot that ‘the State “could
rationally have decided” that the measure adopted might
achieve the State’s objective.’ [Citation.]” (483 US at
834, fn 3; emphasis added; Court’s emphasis deleted.)
17 The same analysis of Nollan appears in Best, The Supreme
Court Becomes Serious About Takings Law: Nollan Sets New Rules
For Exactions (1987) 10 Zon. & Plan. L. Rep. 153, 156; Bosselman
& Stroud (1987) The Current Status of Development Exactions, 14
Fla. Env’t & Urb. Issues 8, 9; Lawrence, Means, Motives, and
Takings: The Nexus Test of Nollan v. California Coastal Commis-
sion (1988) 12 Harv. Env. L. Rev. 231; Marsh & Rosenthal, 5 Cal.
(continued)
.
This Court’s analysis in Nollan shows the accuracy of this
conclusion. There, the government sought to rely on the
minimal, rational basis standard of review used here by the
Court of Appeal. But this Court disagreed. Instead, this
Court subjected the government’s rationales to strict
scrutiny, concluding that one justification for the action was
“... @ made-up purpose of the regulation ...” (483 US at
839, fn 6), while others were “... impossible to understand
..” (483 US at 838)
This Court’s Nollan analysis was recently applied by the
New York Court of Appeals in Seawall Associates v. City of
New York (1989) 74 NY 2d 92. There, the court was con-
fronted with analyzing the Constitutionality of a city ordi-
nance requiring the owners of low rent apartment/hotels to
maintain their properties and rent all units. The ostensible
purpose was to alleviate the severe problems of the
homeless.
Applying the heightened scrutiny required by this Court in
Nollan, the New York court found that the city’s explanation
for its ordinance, while superficially plausible, failed the
Nollan test. Upon analysis, it was clear that compelling the
owners of the regulated properties to perform this public
service did not substantially advance a legitimate public
purpose and in fact would have little impact on the homeless
problem. The ordinance was struck down because of its
failure to establish the nexus required by Nollan between the
end sought to be accomplished and the means chosen by the
city to do so.
Real Prop continued)
. J. 1; Peterson, 39 Hast. L.J. at 338; Taub, Exactions,
prong ond Regulatory Takings: The Developer's Perspective
(1988) 20 The Urban Lawyer 515, 579-580; Supreme Court, 1986
Term: Leading Cases (1987) 101 Harv. L. Rev. 119, 247; Comment
(1987) 21 Creighton L. Rev. 213, 232; Comment (1987) 17 Golden
Gate U.L. Rev. 197, 255; Comment, 54 Brooklyn L. Rev. 991;
Comment (1988) 39 Mercer L. Rev. 1033, 1053.
> ©
Here, the Court of Appeal violated Nollan’s standard of
review and presents a striking conflict with the analysis of
the New York Court of Appeals in Seawall.'®
CONCLUSION
The California Court of Appeal has thumbed its nose at
this Court’s remand. It has misconstrued the remanding
opinion and it has ignored and misapplied other controlling
precedents of this Court. In the process, it has continued
California’s position as a judicial system which fails to
provide property owners with the protection guaranteed by
the Fifth Amendment, creating conflict, inter alia:
@ with the Rhode Island Supreme Court on the ques-
tion of compensation for flood control ordinances
which preclude the use of private property, and
@ with the New York Court of Appeals on the ques-
tion of how to apply Nollan’s heightened scrutiny
of ordinances which take the use of private
property.
Fundamentally, even ignoring other legal errors commit-
ted by the Court of Appeal, the Court of Appeal purported to
decide fact issues with no evidence, no trial, and no factual
record, thus denying First Church due process of law.
This Court’s guidance is sorely needed. As this Court is
aware, cases involving regulatory takings of property con-
tinue to be litigated. The standards to be applied by lower
state and federal courts require further definition for the
18 This assumes that review of the basis of the County’s ordinance
was even before the Court of Appeal. It was not. The only issue
raised in the Superior Court by the County was the “irrelevance” of
an inverse condemnation cause of action because of Agins's conclu-
sion that there could be no compensatory remedy. (Clerk's Tran-
script 27, 45) No justification of the ordinance was ever proffered in
the Superior Court proceedings.
- 29.
benefit of all parties to the land use planning process and the
judges who must evaluate its impacts. As the Supreme Court
of Washington put it recently, after a tortured attempt to
determine the appropriate standards from this Court's
jurisprudence:
“Despite these attempts [i.e., First English, Nollan,
and Keystone], the definitive answers so necessary
for state courts to make reasoned determinations
concerning minimum federal due process require-
ments, remain unavailable. Our task is compli-
cated further by the ambiguities contained in recent
Supreme Court decisions and by the fact that de-
spite a 3-month separation, recent cases do not cite
each other. As Justice Stevens observed, ‘[e)ven
the wisest lawyers would have to acknowledge
great uncertainty about the scope of [federal
regulatory] takings jurisprudence.’ (Orion Corp.
v. State [1987] 109 Wash 2d 621, 653)'°
Three of the California Supreme Court's Justices saw the
problem, but that Court’s need (mandated by the California
Constitution) to review hundreds of death penalty cases de
novo has effectively stalled the California Supreme Court's
civil case review. (See Uelmen, The Court Sits Down to a
Full Plate, ABA Journal [California Edition] CE-1 [Oct
1988].)
19 For other similar struggles, see, ¢.g., Parranto Brothers, Inc. v.
City of New Brighton (Minn App 1988) 425 NW 2d 585; Maryland
Port Administration v. QC Corp. (Md 1987) 529 A 2d 829;
Loveladies Harbor, Inc. v. U.S. (Ci Ct 1988) 15 Cl Ct 381.
- 30 -
Bench, bar, and private citizens need this Court’s
guidance. First Church prays that Certiorari be granted.
Respectfully submitted,
JERROLD A. FADEM
MICHAEL M. BERGER |
RICHARD D. NORTON .
of FADEM, BERGER & NORTON
By: MICHAEL M. BERGER
Counsel of Record
Attorneys for Petitioner
First English Evangelical Lutheran
Church of Glendale
hh
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
COURT OF APPEAL
SECOND DIST
FILED
MAY 26, 1989
Robert N. Wilson, Clerk
FIRST ENGLISH EVANGELICAL
LUTHERAN CHURCH OF GLENDALE,
a California corporation,
Plaintiff and Appellant,
Vv.
COUNTY OF LOS ANGELES,
CALIFORNIA, and LOS ANGELES
COUNTY FLOOD CONTROL DISTRICT,
Defendants and Respondents.
NO. B003702
(Super.Ct. No. C 273634)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Albert D. Matthews, Judge. Affirmed and
remanded.
Fadem, Berger & Norton, and Michael M. Berger, for
Plaintiff and Appellant.
De Witt W. Clinton, County Counse’) of Los Angeles
County, and Amold K. Graham, Principal Deputy County
Counsel, for Defendants and Respondents.
-< >.
In this opinion we consider an issue on remand from the
United States Supreme Court. The high court held a land-
owner is entitled to compensation — not merely injunctive
relief —- when a court finds there has been no unconstitu-
tional regulatory taking. But the Supreme Court expressly
reserved the question whether respondent’s regulatory action
in this case amounted to an unconstitutional taking. We
decide appellant failed to state a cause of action for two
independent and sufficient reasons: (1) The interim ordi-
nance in question substantially advanced the preeminent state
interest in public safety and did not deny appellant all use of
its property. (2) The interim ordinance only imposed a
reasonable moratorium for a reasonable period of time while
the respondent conducted a study and determined what uses,
if any, were compatible with public safety.
FACTS AND PROCEEDINGS BELOW
This is an action for property damage caused by the
flooding of plaintiff's 2l-acre private campground,
Lutherglen, located at the bottom of a canyon in the Angeles
National Forest, at 23200 Angeles Forest Highway,
Palmdale, California.
Plaintiff, First English Lutheran Evangelical Church of
Glendale (First English) purchased Lutherglen in 1957.
Twelve acres are flat land, elevated a little above the banks
of Mill Creek, a natural watercourse running down the
canyon through Lutherglen, and emptying approximately ten
miles below into the Big Tujunga Dam. On this part of the
property, First English built a dining hall, two bunkhouses, a
caretaker’s lodge, an outdoor chapel, and a footbridge across
Mill Creek.
The Middle Fork of Mill Creek is the natural drainage
channel for the watershed area (watershed area) owned by
the National Forest Service (Forest Service) upstream of
Lutherglen. The Middle Fork joins Mill Creek about 1-1/2
*
miles above Lutherglen, just below the point where the
Angeles Forest Highway (highway) crosses the Middle Fork
at Mileage Marker 16.56 (M.M. 16.56). The highway, built
by defendant County of Los Angeles (County) with Forest
Service approval, crosses the Middle Fork at about 20
locations in the canyon. At M.M. 16,56, the Middle Fork
flows beneath the highway through two metal culverts placed
by the County in the highway’s solid raised dirt embank-
ment.
About 3,860 acres of the watershed area were burned in a
fire known as the Middle Fire in July 1977. It is undisputed
that the Middle Fire created a potential flood hazard.!
On February 9 and 10, 1978, a disaster waiting to happen
finally arrived. A storm dropped a total of 11 inches of
water in the watershed area. A giant wall of water rushed
toward the fragile structures people had erected on the banks
of the creek. The docile, often dry creek became a raging
river and overflowed the banks of the Middle Fork and Mill
Creek. The highway’s culverts at M.M. 16.56 were inade-
quate to handle the volume of water. The flood drowned
1 The vegetation of a watershed area normally protects against
flooding because the vegetation slows the flow of water, which can
then percolate into the soil or be carried away by streams. When the
vegetation is burned, however, there is no slowing of the flow, and
the crust on the ground formed by the fire’s intense heat prevents
percolation of water into the soil. Additionally, the ash and debris
from the fire increase the bulk of the flow, known as the bulking
factor, which increases the erosion damage caused by the runoff.
2 Mill Creek at Lutherglen had a capacity of about 6,000 cubic feet
of water per second (cfs). During the storm, the peak runoff just
below Lutherglen was 8,800 cfs, 6,100 cfs of which came from
Middle Fork and 2,700 cfs of which came from Mill Creek. Nor-
mally, had the watershed area not been burned, the flow from Mill
Creek would have exceeded the flow from Middle Fork. Ap-
proximately 380,000 cubic yards of debris and sediment were carried
by the runoff from the watershed area. About 12,000 cubic yards
were deposited behind the highway at M.M. 16.56, about 38,000
(continued)
-A 4-
ten people in its path, swept away bridges and buildings, and
inflicted millions of dollars in losses. Fortuitously,
Lutherglen’s planned camp for handicapped children sched-
uled for that week had been postponed. So no lives were lost
on its property when the surging waters engulfed Lutherglen
and destroyed its buildings.
Plaintiff filed this inverse condemnation action against the
County and the Los Angeles County Flood Control District
(District), claiming that the damage to Lutherglen constituted
a taking without payment of compensation contrary to article
I, section 19 of the California Constitution.*> The first cause
of action alleges that (1) the defendants are liable under
Government Code section 8354 for controlling the Middle
Fork and the highway at M.M. 16.56, which constituted a
dangerous condition of public property; and (2) that a County
ordinance adopted after the flood constituted an uncon-
stitutional taking of property by prohibiting all use of
Lutherglen’s 21 acres. The second cause of action alleges
that the District engaged in cloud seeding during the storm,
for which it is liable in tort and inverse condemnation.
The trial court granted the following pretrial motions: (1)
defendants’ motion to strike the portion of the first cause of
action for damages in inverse condemnation based on the
taking of all use of Lutherglen by a County ordinance; (2)
the District’s motion for judgment on the pleadings on the
second cause of action in tort and inverse condemnation
based on cloud seeding; and (3) defendants’ motion to limit
(ftn. continued) : ;
cubic yards were deposited in Lutherglen, and the rest was deposited
at Hansen Dam.
3 All references concerning the complaint refer to the Second
Amended Complaint for Inverse Condemnation filed on January 5,
1981.
4 Hereafter all section references are to the Government Code
unless otherwise indicated.
-A 5-
the trial to the first cause of action for damages under section
835, rather than in inverse condemnation.
The trial, which proceeded solely on the section 835
action, was bifurcated and liability was tried to a jury prior
to damages. At the close of plaintiff's evidence on liability,
the court granted defendants’ motion for nonsuit. A judg-
ment of nonsuit dismissing the entire complaint was entered.
In its initial appeal to this court, First English appealed the
judgment of dismissal and also sought appellate review of
the pretrial rulings enumerated above, and of the post-
judgment order awarding costs and fees to defendants.
In an unpublished opinion authored by Justice Thompson,
this court affirmed the nonsuit of the section 835 cause of
action but reversed the dismissal of the claim of inverse
condemnation based on the County’s cloud seeding efforts.
As to the “regulatory taking” cause of action based on the
interim County ordinance prohibiting First English from
rebuilding the destroyed buildings, Justice Thompson
wrote: “We conclude that because the United States
Supreme Court has not yet ruled on the question of whether a
State may constitutionally limit the remedy for a taking to
nonmonetary relief, this court is obligated to follow Agins.
(Auto Equity Sales, Inc. v. Superior Court (1982) 57 Cal.2d
450, 455.)” (First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, et al. (No. B003702),
unpublished slip opinion, at p. 22.)°
The California Supreme Court adhering to its own prece-
dent in Agins v. Tiburon denied review on the “regulatory
taking” as well as all other issues raised in the initial appeal.
But the United States Supreme Court seized upon the case to
5 In Agins v. Tiburon (1979) 24 Cai.3d 266, affd. on other grounds
(1980) 447 U.S. 255, the California Supreme Court held a property
owner was not entitled to monetary damages unless and until a court
ruled a land use regulation was excessive and the government
nevertheless chose to continue it in effect.
-A 6-
finally resolve the remedy issue, a question it had been
unable to reach for procedural reasons in a series of prior
appeals. °® The Supreme Court limited its grant of certiorari
to our ruling on the “regulatory taking” cause of action. Ina
6-3 decision the high court reversed our resolution of this
issue. The majority held we were in error because we relied
on an erroneous ruling of the California Supreme Court in
Agins. The Supreme Court held monetary damages indeed
can be sought as an initial remedy for “inverse condemna-
tion” claims based on unconstitutional “regulatory takings.”
(First Lutheran Church v. Los Angeles County, supra, 482
U.S. at p. 321.) However, the Court limited its decision to
this single issue and remanded the case to our court to
determine whether the County’s ordinance actually repre-
sents an unconstitutional “taking” of appellant’s property
without compensation. (/d. at pp 313, 321, 322.)
DISCUSSION
Our own previous opinion and that of the Supreme Court
define what it is we have yet to resolve in the instant
opinion. The trial court made its order striking the inverse
condemnation conversion allegation based on the California
Supreme Court ruling that damages are not available for a
“regulatory taking” until after the regulation in fact is ruled
to be an unconstitutional taking and the government elects to
continue the regulation in effect. This grounds for the order
has been overturned. We must now decide whether this order
© “Four times this decade, we have considered similar claims and
have found ourselves for one reason or another unable to consider
the merits of the Agins rule. See MacDonald, Sommer & Frates v.
Yolo County (1986) 477 U.S. 340; Williamson County Regional
Planning Comm. v. Hamilton Bank (1985) 473 U.S. 172; San Diego
Gas & Electric Co [v. San Diego (1981) 450 U.S. 621); Agins v.
Tiburon, supra.” (First Lutheran Church v. Los Angeles County
(1987) 482 U.S. 304, 310 [96 L.Ed.2d 250, 107 S. Ct. 2378].)
ws
can be sustained on any other grounds. For, it is well settled
that a trial court’s decision is not to be reversed merely
because it was based on erroneous grounds if there is an
alternative rationale which will support that judgment.
(Keenan v. Dean (1955) 134 Cal.App.2d 189 [appellate court
can uphold motion to strike granted on erroneous grounds if
demurrer could have been sustained for failure to state cause
of action].)
The United States Supreme Court in First English made it
abundantly clear the Court was deciding the remedies issue
— and only that issue.’ The majority specifically held it
‘ First English and another land use case decided the same term —
Nollan v. California Coastal Commission (1987) 483 U.S. 825, 97
L.Ed.2d 677 —— have engendered enormous interest in the academic
community. (See, e.g., Horder, Where Is The Supreme Court
Heading in Its Taking Analysis and What Impact Will This Direction
Have on Municipalities? (1988) 28 Natural Resources J. 585. Geraci
and Nabozny-Younger, Damages for a Temporary Regulatory
Taking: First English Evangelical Lutheran Church v. County of
Los Angeles (1988) 24 Cal. Western L.Rev. 33. Williams, Legal
Discourse, Social Vision and the Supreme Court's Land Use
Planning Law: The Genealogy of the Lochnerian Recurrence in
First English Church and Nolian (1988) 59 Univ. of Colo. L.Rev.
427. Berger, Happy Birthday, Constitution: The Supreme Court
Establishes New Ground Rules for Land-Use Planning (1988) 20
Urban Law 735. Large, The Supreme Court and the Takings
Clause: The Search for a Better Rule (1987) 18 Environmental L. 3.
Falik and Shimko, The “Takings” Nexus — The Supreme Court
Chooses a New Direction in Land-Use Planning: A View from
California (1988) 39 Hastings L.J. 359. Siemon and Larsen, The
Taking Issue Trilogy: The Beginning of the End? (1988) 33 Wash.
Univ. J. of Urban & Contemporary L. 169. Acton, Much Ado about
Nollan: The Supreme Court Addresses the Complex Network of
Property Rights, Land Use Regulations, and Just Compensation in
the Keystone, Nollan, and First English Cases (1988) 17 Stetson
L.Rev. 727. Woodard, Constitutional Law: Is Time Running Out
for the Government to Dispute Regulatory Takings? (Spr. 1988) 10
Campbell L.Rev. 275. Patton, Affirmative Relief for Temporary
(continued)
-A 8-
was not deciding appellant had stated a cause of action. As
Chief Justice Rehnquist wrote: “In affirming the decision to
strike this allegation, the Court of Appeal [this court] as-
sumed that the complaint sought ‘damages for the uncompen-
sated taking of all use of Lutherglen by County Ordinance
No. 11,855.’ ... It relied on the California Supreme Court's —
Agins decision for the conclusion that ‘the remedy for a
taking [is limited] to nonmonetary relief ....’ .... The
disposition of the case on these grounds isolates the remedial
question for our consideration. The rejection of appellant's
allegations did not rest on the view that they were false ....
Nor did the court rely on the theory that regulatory measures
such as ordinance No 11,855 may never constitute a taking in
the constitutional sense. Instead, the claims were deemed
irrelevant solely because of the California Supreme Court's
decision in Agins that damages are unavailable to redress a
‘temporary’ regulatory taking....
“We reject appellee’s suggestions that, regardless of the
state court’s treatment of the question, we must independ-
ently evaluate the adequacy of the complaint and resolve the
takings claim on the merits before we can reach the remedial
question .... We accordingly have no occasion to decide
whether the ordinance at issue actually denied appellant all
use of its property or whether the county might avoid the
conclusion that a compensable taking had occurred by
establishing that the denial of all use was insulated as a part
(ftn. continued)
Regulatory Takings (Summ. 1987) 48 U. of Pittsburgh L.Rev. 1215.
Johnson, Compensation of Landowners for Temporary Regulatory
Takings (Summ. 1987) 21 Ga.L.Rev. 1169. Lodise, Retroactive
Compensation and the Illusion of Economic Efficiency: An Analysis
of the First English Decision (1988) 35 UCLA L.Rev. 1267. Falik
& Shimko, The Takings Nexus: The Supreme Court Forges a New
Direction in Land-Use Jurisprudence (Spr. 1988) 23 Real Property,
Probate & Trust J. 1. Batchelder, Flood Plain Zoning in California
— Open Space by Another Name: Policy and Practicality (Feb.
1973, Vol. 10, No. 2) San Diego L.Rev. 381.)
}
;
$
‘
;
:
;
-A 9-
of the State’s authority to enact safety regulations.
(Citations omitted.) These questions, of course, remain open
for decision on the remand we direct today.” (Italics added.)
(First Lutheran Church v. Los Angeles County, supra, U.S.
482, 311, 313.)
The very limited nature of the Court’s holding was
underscored in a portion of the dissenting opinion which was
not controverted in any way in the majority opinion. As
Justice Stephens wrote in his dissenting opinion for three
members of the Court: “The Court of Appeal affirmed on the
authority of Agins alone, ... without holding that the com-
plaint had alleged a violation of either the California Consti-
tution or the Federal Constitution. At most, it assumed,
arguendo, that a constitutional violation had been alleged.
“This Court clearly has the authority to decide this case
by ruling that the complaint did not allege a taking under the
Federal Constitution, and therefore to avoid the novel
constitutional issue that it addresses. Even though I believe
the Court’s lack of self-restraint is imprudent, it is impera-
tive to stress that the Court does not hold that appellant is
entitled to compensation as a result of the flood protection
regulation that the County enacted. No matter whether the
regulation is treated as one that deprives appellant of its
property on a permanent or temporary basis, this Court's
precedents demonstrate that the type of regulatory program
at issue here cannot constitute a taking.
ese eee
“[A]lthough the Court uses the allegations of this complaint
as a springboard for its discussion of a discrete legal issue, it
does not, and could not under our precedents, hold that the
allegations sufficiently alleged a taking or that the county's
effort to preserve life and property could ever constitute a
taking. As far as the United States Constitution is con-
cemed, the claim that the ordinance was a taking of
Lutherglen should be summarily rejected on its merits.”
-A 10-
(First Lutheran Church v. Los Angeles County, supra, U.S.
482, at pp. 324-325, 328, Stevens, J., dissent.)
This brings us to the question whether the substantive
allegations of the “regulatory taking” claim state a valid
cause of action. The answer to this question, in tum, de-
pends upon whether the public is justified in placing the
burden of these restrictions on this private landowner rather
than compensating the landowner for the uses it is required
to give up. Commentators have noted the law is not well-
settled in this area. (See, e.g., Siemon and Larson, The
Taking Issue Trilogy: The Beginning of the End?, supra, 33
Wash. Univ. J. of Urban & Contemporary L. 169.) Neverthe-
less, there are enough guideposts to resolve the instant case.
It simply does not pose a close issue under any formulation
the Supreme Court has suggested as the appropriate test for
judging when compensation is required.
I. THE “PUBLIC SAFETY EXCEPTION” AND
OTHER GOVERNMENTAL RESTRICTIONS
ON THE USE OF PRIVATE PROPERTY
Earlier we quoted Chief Justice Rehnquist's majority
opinion in First English where he raised the possibility “the
denial of all use was insulated [from compensation] as a part
of the State’s authority to enact safety regulations.” One of
the cases the Chief Justice mentioned in support of that
proposition was the seminal decision, Mugler v. Kansas
(1887) 123 U.S. 623. In that case, an owner of a brewery
challenged a newly enacted state liquor prohibition law on
grounds it constituted a taking of his property rights without
compensation because it denied him use of his property. The
Supreme Court in an opinion by Justice Harlan held this was
not a compensable taking but rather a proper exercise of the
state government's “police powers.” “Under our system that
power is lodged with the legislative branch of the goverm-
ment. It belongs to that department to exert what are known
-A 11-
as the police powers of the State, and to determine, primarily
what measures are appropriate, are needful for the protection
of the public morals, the public health or the public safety.
“Undoubtedly the State, when providing by legislation for
the protection of the public health, the public morals, or the
public safety is subject to the paramount authority of the
Constitution of the United States, and may not violate rights
secured or guaranteed by that instrument or interfere with the
execution of the powers confided to the government.
(Citations omitted.) Upon this ground ... defendants ..
[contend] that, as their respective breweries were erected
when it was lawful to engage in the manufacture of beer for
every purpose; as such establishment will become of no
value as property, or, at least, will be materially diminished
in value, if not employed in the manufacture of beer for
every purpose; their prohibition upon their being so em-
ployed is, in effect, a taking of property for public use
without compensation, and depriving the citizen of his
property without due process of law.
“This interpretation of the 14th Amendment is inad-
missible. It cannot be supposed that the states intended, by
adopting that Amendment, to impose restraints upon the
exercise of their powers for the protection of the safety,
health, or morals of the community ... [A)Il property in this
country is held under the implied obligation that the owner's
use of it shall not be injurious to the community. (Citations
omitted.)” (123 U.S. at pp. 660-665.)
The Mugler court distinguished Pumpelly v. Green Bay
Company 13 Wall. 166. In that case the Supreme Court had
held the state was required to compensate a property owner
whose land was completely flooded when the government
erected a dam across a river. “[Pumpelly] was a case in
‘which there was a permanent flooding of private property,’ a
‘physical invasion of the real estate of the private owner and
a practical ouster of his possession.” His property was, in
effect, required to be devoted to the use of the public, and,
-A 12-
consequently, he was entitled to compensation.” (123 U.S. at
p. 668.)
Erecting a dam which permanently submerges a property
owner's land under a lake is one thing, a law limiting his use
of that land quite another. As the Mugler court ruled: “A
prohibition simply upon the use of property for purposes that
are declared by valid legislation, to be injurious to the
health, morals, or safety of the community, cannot, in any
just sense, be deemed a taking or an appropriation of prop-
erty for the public benefit. Such legislation does not disturb
the owner in the control or use of his property for lawful
purposes, nor restrict his right to dispose of it, but is only a
declaration by the state that its use by anyone, for certain
forbidden purposes, is prejudicial to the public interest. Nor
can legislation of that character come within the 14th
Amendment, ... unless it is apparent that its real object is
not to protect the community, or to promote the general well
being, but, under the guise of police regulation to deprive the
owner of his liberty and property, without due process of
law. The power which the states prohibiting such use by
individuals of their property as will be prejudicial to the
health, the morals, or the safety of the public, is not — and,
consistently with the existence and safety of organized
society, cannot be — burdened with the condition that the
state must compensate such individual owners for pecuniary
losses they may sustain by reason of their not being permit-
ted ... to inflict injury upon the community.” (123 U.S. at
Pp. 668-669, italics added.)
We recognize a brewery is a far cry from a Bible camp.
But here the threat to public health and safety emanates not
from what is produced on the property but from the presence
of any substantial structures on that property. The principles
enunciated in Mugler have been applied by the Court to
uphold prohibitions against a broad range of other uses of
one’s property — e.g., an ordinance prohibiting the manufac-
ture of bricks inside the city limits of Los Angeles
-A 13-
(Hadacheck v. Sebastian (1915) 239 U.S. 394); a requirement
property owners cut down red cedars which were infected
with a communicable plant disease fatal to neighboring apple
orchards. (Miller v. Schoene (1928) 276 U.S. 272); and a
prohibition against excavating below the water table in order
to extract gravel (Goldblatt v. Town of Hemstead (1962) 369
U.S. 590).
Sometimes government exercises its police powers
through the enactment of zoning ordinances and other forms
of land use regulation. Whether a specific regulation repre-
sents an unconstitutional “taking” involves the same con-
siderations as suggested in Mugler and its progeny.
Recently, in Agins v. Tiberon (1980) 447 U.S. 255, Justice
Poweil writing for a unanimous court gathered the strands of
earlier cases® and articulated the test which the high court
now invokes in zoning cases. “The application of a general
zoning law to particular property effects a taking if the
ordinance does not substantially advance legitimate state
interests (Citation omitted) or denies an owner economically
8 The first Supreme Court case to address the constitutionality of
municipal zoning itself was Euclid v. Ambler Realty Co. (1926) 272
U.S. 365 which upheld the validity of this form of land use regula-
tion by analogy to the government's power tw regulate public
nuisances On private property. It is noteworthy this case was written
in the heyday of “substantive due process” when the Suprerne Court
freely struck down many other regulatory laws. Indeed Euclid v.
Ambier was authored by one of the chief exponents of “substantive
due process”, Justice Sutherland. The next few years saw a number
of cases accepting the constitutionality of land use regulation (Zahn
v. Board of Public Works (1927) 274 U.S. 325; Gorieb v. Fox (1927)
274 U.S. 603) although two opinions of that era disapproved specific
provisions not remotely resembling the instant ordinance and its
public safety concerns (Nectow v. City of Cambridge (1928) 277
U.S. 183; Washington ex rel. Seattle Title Trust Co. v. Roberge
(1928) 278 U.S. 116).
-A 14-
viable use of his land (citation omitted).? The determina-
tion that governmental action constitutes a taking is, in
9 The essence of this test was set forth in 1922 when the court
denied relief to a homeowner whose house was threatened with
damage because of a coal mining operation beneath his property.
(Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393.) The
majority opinion by Justice Holmes held a newly enacted “sub-
sidence” law amounted to an unconstitutional taking of the mine-
owners’ entire “surface support” property interest, an interest the
landowners above had sold them previously. Although Justice
Holmes did not use the precise words the court subsequently set
forth as a test in Agins, a later opinion pointed out he was talking
about the same factors — the public interest the regulation advances
and the degree of the taking. (Keystone Bituminous Coal Assn. v. De
Benedictis (1987) 480 U.S. 470, 485 [94 L.Ed.2d 472].) Notably, as
the Supreme Court pointed out in that same opinion, Justice Holmes
did not contest the main legal premise of Justice Brandeis’ dissent
—— government has an absolute right to prohibit land uses which
constitute a public nuisance. Instead Justice Holmes attacked the
minor premise. (480 U.S. at p. 488, fn. 17, citing 260 U.S. at pp.
413-414, 417.) He found the particular statute involved was not a
legitimate exercise of the police power but only a “private benefit”
statute which shifted economic benefits from individual mineowners
to individual building owners. “A source of damage to such a house
is not a public nuisance .... Further, [the statute] is not justified as
@ protection of personal safety. That could be provided for by
notice.” (260 U.S. at pp. 413-414, italics added.) Justice Holmes
then shifted to the other factor and found “the extent of the taking is
great. It purports to abolish what is recognized in Pennsylvania as
an estate in land — a very valuable estate ——- and what is ... a
contract . . . binding on the [homeowner].” (/bid.)
In Keystone Bituminous Coal the Supreme Court distinguished
Justice Holmes majority opinion in Pennsylvania Coal and upheld a
similar “subsidence” statute by emphasizing the Legislature enacted
the new law to advance the “health, safety and general welfare” of
the public instead of “merely . . . balancing . . . the private economic
interests of coal companies against the private interests of the
surface owners.” (Keystone Bituminous Coal Assn. v. De Benedictis,
supra, 480 U.S. at pp. 485-492.) The court also looked to the
second factor of the Agins test and found that in any event the
(continued)
-A 15-
essence, a determination 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 (citation omitted)
the question necessarily requires a weighing of private and
public interest.... Appellants [in the Agins case] ... will
share with other owners the benefit and burdens of the city's
exercise of its police power. Assessing the fairness of the
zoning ordinances, these benefits must be considered along
with any diminution in market value that appellants may
suffer.” (447 U.S. at pp. 260-262.)
In Agins, the Supreme Court was called upon to apply this
test to a zoning ordinance which limited landowners to one
residence on each acre of land. The court found the preven-
tion of premature urbanization was a “legitimate state
interest” and a limitation of one dwelling per acre “sub-
Stantially advanced” this interest. It further found the
landowner shared in these public benefits which helped
offset any diminution of market value he might suffer.
Accordingly, the regulation imposing the limitation was not
an unconstitutional “taking” of the landowner's property and
the landowner was not entitled to compensation.
In a case decided the same term as First English the
Supreme Court applied this same basic test to strike down a
condition the California Coastal Commission imposed on a
owner of beachfront property (Nollan v. California Ccastal
Commission, supra, 483 U.S. 825). This condition required
the owner to grant an easement allowing public access to the
Subsidence” eentute did not represent a taking of “all use” since the
mineowners could still take out substantial amounts of coal without
disturbing the surface.
For reasons discussed in the next section, the instant case
resembles Keystone Bituminous Coal much more than it does
Pennsylvania Coal. However, here the public safety concerns are far
more dominant than they are even in Keystone Bituminous Coal.
-A 16-
beach in front of his home. The Supreme Court added a
refinement to the test. The government’s regulation — in
this case, a condition — must substantially advance the
precise state interest which avowedly motivated the regula-
tion. The Nollan majority found the condition imposed — an
easement affording physical access to the beach — did not
substantially advance the avowed purpose of enhancing
visual access to the beach.
II. FIRST ENGLISH IS NOT ENTITLED TO
COMPENSATION BECAUSE THE INTERIM
ORDINANCE DID NOT DEPRIVE IT OF “ALL
USES” OF LUTHERGLEN AND WHATEVER
USES WERE DENIED WERE PROPERLY
DENIED TO PRESERVE PUBLIC SAFETY
One pair of commentators suggests the Supreme Court has
held a private landowner is entitled.to compensation when a
land use regulation either does not substantially advance a
legitimate public purpose or deprives the landowner of “all
uses” of the property. (Falik and Shimko, The Takings
Nexus: The Supreme Court Forges a New Direction in
Land-Use Jurisprudence, supra, 23 Real Property, Probate &
Trust J. 1.) To put it another way, they construe the Supreme
Court's decision in Agins v. City of Berkeley, supra, to mean
landowners are entitled to compensation if the land use
regulation deprives them of “all uses” of the property even if
the regulation involved substantially advances a legitimate
public purpose. They admit there is conflict between this
“either/or” test and ‘some of the crucial language in Justice
Rehnquist’s majority opinion in First English. There, as will
be recalled, the Supreme Court majority clearly stated the
land use regulation involved in this case — Interim Or-
dinance 11,855 —— would not constitute a compensable
“taking” if the regulation did not deprive First English of “all
use” of its property or even assuming it prohibited “all uses”
-A 17-
if that deprivation of “all uses” promoted public safety.
Under this formulation First English would not be entitled to
compensation even if Interim Ordinance 11,855 deprived it
of “all uses” of Lutherglen if that prohibition substantially
advances the interest in public health and safety.
If necessary, we could readily reconcile the Agins formu-
lation and the First English formulation. In Agins the public
purpose advanced was the interest in preventing premature
urbanization (with premature urbanization defined as devel-
opment in excess of one home per acre). The Supreme Court
might have difficulty finding that this public purpose would
justify depriving a landowner of “all use” of his property.
However, the Supreme Court recognized the public purpose
in First English is far different —— the preservation of lives
and health. It would not be remarkable at all to ailow
government to deny a private owner “all uses” of his prop-
erty where there is no use of that property which does not
threaten lives and health. So it makes perfect sense to deny
compensation for the denial of “all uses” where health and
safety are at stake but require compensation for the denial of
“all uses” where the land use regulation advances lesser
public purposes. Indeed it would be extraordinary to con-
strue the Constitution to require a government to compensate
private landowners because it denied them “the right” to use
paps which cannot be used without risking injury and
death.!
10 This reconciliation of the two formulations finds considerable
support in another opinion filed during the same term as First
English — Keystone Bituminous Coal Assoc. v. De Benedictis,
supra, 480 U.S. 470. “Many cases .. . have recognized that the
nature of the State’s action is critical in takings analysis. (Fn.
omitted.).... The Court’s hesitance to find a taking when the state
merely restrains uses of property that are tantamount to public
nuisances is consistent with the notion of ‘reciprocity of advantage’
that Justice Holmes referred to in Pennsylvania Coal.... [O)ne of
the State’s primary ways of preserving the public weal is restricting
(continued)
-A 18-
We need not choose between the Agins and First English
formulations of the test, however. Interim Ordinance 11,855
survives under either formulation. It did not deny First
English “all use” of the property and the uses it did deny
could be constitutionally prohibited under the County’s
power to protect public safety. -
True, the complaint alleges Interim Ordinance 11,855
denies First English “all use” of Lutherglen. But as will be
seen shortly, the ordinance does not deny First English “all
use” of this property. It does not even prevent occupancy
and use of any structures which may have survived the flood.
It only prohibits the reconstruction of structures which were
demolished or damaged by the raging waters and the con-
struction of new structures. In no sense does it prohibit uses
of this campground property which can be carried out
without the reconstruction of demolished buildings or the
erection of new ones. As far as this ordinance is concerned,
many camping activities could continue on this property.
Meals couid be cooked, games played, lessons given, tents
pitched. (If Lutherglen had been a factory or a coal mine,
these sorts of uses would have meant little to the landowner.
But Lutherglen is a camping facility. So uses of value to that
purpose remained available during the time the interim
ordinance was in effect.)
(ftn. continued) ; , '
the uses individuals can make of their property. While each of us is
burdened somewhat by such restrictions, we, in turn, benefit greatly
from the restrictions that are placed on others.... [T]he Takings
Clause did not transform that principle to one that requires compen-
sation whenever the State asserts its power to enforce it.... As the
cases .. . demonstrate, the public interest in preventing nuisances is
a substantial one, which in many instances has not required compen-
sation.” (480 U.S. at pp. 488-489, 491, 492.) As we do in the
instant case, however, the Supreme Court found it unnecessary to
rest its decision solely on this grounds since the mineowners
retained some uses of their property. (/bid.)
-A 19-
Given the serious safety concerns demonstrated by the
May 1978 flood, the County might well have been justified
in prohibiting entirely any human occupancy or other use
whatsoever of Lutherglen until it had completed a thorough
study and determined precisely what, if any, occupancy and
uses were compatible with the public safety. However, we
need not address that issue in this case since Interim Or-
dinance 11,855 did not by its terms preclude “all uses” of
this property.
The issue actually raised is whether the County could
constitutionally do what it did in Interim Ordinance 11,855
— prevent the construction of any buildings in Lutherglen on
an interim basis. It is to this issue we now turn.
To properly apply the constitutional test to respondents’
regulatory action in this case requires that we take a closer
look at the interim flood control ordinance itseif as well as
other relevant land use provisions. We are reviewing a
judgment on the pleadings and ordinarily would be confined
to the allegations of the complaint. However, an appellate
court is allowed to take account of matters which can be
judicially noticed (Code Civ. Proc., § 430.30(a); Dryden v.
Tri-Valley Growers (1977) 65 Cal.App.3d 990, 997; 4
Witkin, Cal. Procedure, 3d ed. 1985) Pleading, §§ 394, 395;
5 Witkin, Cal. Procedure, supra, § 896.) This includes
legislative acts and enactments (People v. Oakland Water
Front Co. (1897) 118 Cal. 234, 245; Livermore v. Beal
(1937) 18 Cal.App.2d 535; 4 Witkin, Cal. Procedure, supra,
§ 395). We have taken judicial notice of the disputed interim
ordinance, County Ordinance No. 11,855, the subsequent
permanent flood control ordinance, and a variety of other
county ordinances bearing on this particular property.
First English’s camp, Lutherglen, is located in an area
which was and is zoned “R-R” (Resort and Recreation). A
youth camp such as this is allowed within this zone only
pursuant to a “Conditional Use Permit.” At the time of the
flood, the camp grounds included two bunk houses, a dining
-A 20-
hall, a caretaker’s lodge, and an outdoor chapel. After the
February 1978 flood swept away most of these structures and
those of other camps in the Mill Creek flood way, the County
adopted County Ordinance No. 11,855 as an interim measure.
This ordinance was enacted on January 11, 1979, and pro-
vides in pertinent part:
“A person shall not construct, reconstruct, place or
enlarge any building or structure, any portion of which is, or
will be, located within the outer boundary lines of the
interim flood protection area located in Mill Creek Canyon,
vicinity of Hidden Springs,. . . .
x*ekek Kk kK kK
“Studies are now under way by the Department of
Regional Planning in connection with the County Engineer
and the Los Angeles County Flood Control District, to
develop permanent flood protection areas for Mill Creek and
other specific areas as part of a comprehensive flood plain
management project. Mapping and evaluation of flood data
has progressed to the point where an interim flood protection
area in Mill Creek can be designated. Development is now
occurring which will encroach within the limits of the
permanent flood protection area and which will be incom-
patible with the anticipated uses to be permitted within the
permanent flood protection area. If this ordinance does not
take immediate effect, said uses will be established prior to
the contemplated ordinance amendment, and once established
may continue after such amendment has been made [because
of the “grandfather” provisions of the zoning code].”
(Emphasis in original.)
By its terms, this ordinance temporarily prohibited
appellant from rebuilding the structures lost to the February
1978 flood while the County studied what permanent meas-
ures it would have to take to prevent a recurrence of that
deadly event. The interim ordinance did not affect eight of
the twenty-one acres on the Lutherglen site because they
were not in the flat land near the river channel.
-A 21-
Appellant’s “regulatory taking” cause of action was
predicated solely on this temporary interim ordinance. Nor
has First English ever amended its complaint to allege the
permanent flood control ordinance enacted in 1981 con-
Stituted a “taking” of its property. Nonetheless, it is helpful
to an understanding of the temporary measure to consider the
terms of the permanent ordinance.
On November 8, 1980 — 22 months after the interim
ordinance went into effect and 21 months after First English
filed its lawsuit — the Los Angeles County Regional Plan-
ning Commission issued a report on a proposed permanent
Flood Protection District encompassing the Mill Creek area.
The commission found: “... [T]he subject property [restric-
tion] represents one strategy in Los Angeles County’s
comprehensive program to insure compliance with the
requirements of the Federal Flood Protection Program by
designation of a flood protection area along the stream bed
of Mill Creek; ... [T)his will be accomplished by the prohi-
bition of buildings and major structures within the area
reserved for flood flows which includes both the existing
wash or channel and additional area as may be necessary to
provide reasonable protection from overflow of flood waters,
bank erosion, and debris deposition; ... /Ajll affected
parcels still will have buildable areas; .. . Establishment of
the proposed district at such location is in the interest of
public health, safety, and general welfare....” (The Re-
gional Planning Commission, County of Los Angeles, Flood
Protection Case No. 3-(5) November 8, 1980, italics added.)
Pursuant to the commission’s findings and recommenda-
tions the Board of Supervisors enacted Ordinance No.
12,413. This ordinance, adopted August 11, 1981, created
the Mill Creek Flood Protection District and superseded the
interim flood protection district of Ordinance No. 11,855.
The permanent building restriction encompasses the same
area as the interim ordinance had. This permanent ordinance
recites as its purpose: “The flood protection district is
-A 22-
established as a supplemental district for regulation of
property within areas designated by the Chief Engineer of the
Los Angeles County Flood Control district as subject to
substantial flood hazard. Such district includes both the
existing wash or channel and additional area as necessary to
provide reasonable protection from overflow of floodwaters,
bank erosion, and debris deposition.”
Among other things, the permanent ordinance prohibits
construction or reconstruction of most buildings within the
district. The exceptions, however, do permit “accessory
building structures that will not substantially impede the
flow of water, including sewer, gas, electrical, and water
systems approved by the county engineer .. . [ajutomobile
parking facilities incidental to a lawfully established use .. .
{and] [f]lood control structures....” (§ 22.44.220.) An-
other provision instructs the county engineer to “enforce, as
a minimum, the current Federal flood plan management
regulations” when considering whether to issue building
permits for buildings or other structures in this flood control
zone.
If there is a hierarchy of interests the police power serves
— and both logic and prior cases suggest there is — then the
preservation of life must rank at the top. Zoning restrictions
seldom serve public interests so far up on the scale. More
often these laws guard against things like “premature ur-
banization” (Agins v. Tiburon, supra, 447 U.S. 255), or
“preserve open spaces” [Morse v. County of San Luis Obispo
(1967) 247 Cal.App.2d 600), or contribute to orderly devel-
opment and the mitigation of environmental impacts (see,
e.g., Euclid v. Ambler Realty Co., supra, 272 U.S. 365;
Friends of Westwood v. City of Los Angeles (1987) 191
Cal.App.3d 259). When land use regulations seek to advance
what are deemed lesser interests such as aesthetic values of
the community they frequently are outweighed by constitu-
tional property rights (see, e.g., Desert Outdoor Advertising
v. County of San Bernardino (1967) 255 Cal.App.2d 765).
-A 23-
Nonetheless, it should be noted even these lesser public
interests have been deemed sufficient to justify zoning which
diminishes — without compensation — the value of individ-
ual properties. (Van Alstyne, Taking or Damaging by Police
Power: The Search for Inverse Condemnation Criteria,
(1971) 44 So.Cal.L.Rev. 1, and cases cited therein.)
The zoning regulation challenged in the instant case
involves this highest of public interests — the prevention of
death and injury. Its enactment was prompted by the loss of
life in an earlier flood. And its avowed purpose is to prevent
the loss of lives in future floods. Moreover, the lives it seeks
to save and the injuries it strives to prevent are not only
those on other properties but on appellant's property as well.
We need not address the ultimate question — is the public
interest at stake in this case so paramount that it would
justify a law which prohibited any future occupancy or use of
appellant’s land. Certainly, the owners of red cedar trees
were not entitled to any public compensation when the state
required them to destroy those trees in order to save the
“lives” of apple trees in Miller v. Schoene, supra. But the
zoning limitation in the instant case is nowhere near as
Draconian. Zoning for this property allowed several uses of
Lutherglen throughout the term of the interim ordinance First
English challenges. During that period and after enactment
of the permanent ordinance, as well, this propeity could be
used for “agricultural, and recreational uses.” And under the
permanent ordinance First English appellants are specifically
allowed to build swimming pools, parking lots, and acces-
sory buildings within the flood zone portion of its property.
(Since First English does not allege it has been denied
permits to build any alleged “accessory buildings” we cannot
know the scope of this exception.) What First English can no
longer do is rebuild the bunkhouses and similar permanent
living structures which might house the potential victims of a
future flood or if carried away by that flood cause death,
-A 24-
injury and property damage to other properties further
downstream.
We have no problem concluding these zoning restrictions
represent a valid exercise of the police power and not an
unconstitutional “taking without compensation.” On bal-
ance, the public benefits this regulation confers far exceed
the private costs it imposes on the individual property owner
(especially after factoring in the public benefits this property
owner shares). These are the considerations the Supreme
Court deemed to control the decision whether government
should be compelled to award compensation when its regula-
tions drastically limit the uses of private property. (Agins v.
Tiburon, supra, 447 U.S. 255, 260-262, see Discussion at
pages 18-19, supra.) On one side of the scale the zoning
restriction “substantially advances” the highest possible
public interest — the prevention of death and injury both on
and off appellant’s property. On the other side of the scale,
appellants and their future campers not only share in this
public benefit but are still left with some permissible uses of
the property. The fact the zoning restrictions necessary to
the preservation of life and health may cause a diminution in
the use and economic value of this property does not create a
legal entitlement to compensation for that loss of use and
value. (Goldblatt v. Town of Hemstead, supra, 369 U.S. 590;
Hadachek v. Sebastian, supra, 239 U.S. 394; see Keystone v.
De Benedictis, supra, 480 U.S. 470.)
This case presents a dramatic illustration of the principle
of “reciprocity of advantage.” Lutherglen is one of several
properties running along this riverbed. Those who use
Lutherglen are endangered by any structures that may be
built on these other properties, just as those using the other
properties are endangered by structures First English might
erect on Lutherglen. First English enjoys the safety benefits
accompanying the prohibition of construction on the other
properties along the riverbed in return for the “reciprocal”
-A 25-
safety benefits that flow to the other landowners because
First English is subject to a similar ban.
The instant complaint contains no allegations controvert-
ing the legislative history nor does it present other facts we
are entitled to judicially notice casting doubt on the avowed
intent and effect of the interim ordinance. Indeed, after
reciting the terms of the now-superseded ordinance the sole
allegation is that “Ordinance No. 11,855 denies First Church
all use of Lutherglen.” The complaint does not allege the
limitations imposed on First English’s use of the property
were motivated by a desire to acquire Lutherglen at a lower
price or that it was unreasonable for the County to conclude
these limitations would contribute substantially to the public
safety.
The government is entitled to a presumption its regula-
tions are motivated by and reasonably serve their avowed
purposes (Morse v. San Luis Obispo County, supra, 247
Cal.App.2d 600) which can only be overcome by specific
allegations and proof. In the instant case, it is abundantly
clear from the interim ordinance and related judicially
noticed facts that the avowed purpose of this ordinance was
to protect lives and health. There can be no serious conten-
tion under Nollan that the regulation fails to “substantially
advance” the precise “legitimate state interest” the county
avows prompted the interim and permanent ordinances.-
Restricting the erection of structures in the flood zone along
the river is calculated to substantially advance the state's
legitimate interest in preventing injury and death during the
next flood. Accordingly, we are satisfied that the instant
complaint does not state a valid claim for a compensable
taking. In the words of Chief Justice Rehnquist, the or-
dinance did not “actually [deny] appellant all use of its
property” and in any event “the denial of all use was in-
sulated as a part of the State’s authority to enact safety
regulations.” (First Lutheran Church v. Los Angeles County,
supra, 482 U.S. at p. 313.)
-A 26-
Ill. THE INTERIM ORDINANCE IS FURTHER
JUSTIFIED AS A REASONABLE TEMPO-
RARY LIMITATION ON CONSTRUCTION TO
MAINTAIN THE STATUS QUO WHILE THE
COUNTY DETERMINED WHAT, IF ANY,
STRUCTURES WERE COMPATIBLE WITH
PUBLIC SAFETY.
As an independent and sufficient grounds for our decision,
we further hold the interim ordinance did not constitute a
“temporary unconstitutional taking” even were we to assume
its restrictions were too broad if permanently imposed on
First English. This interim ordinance was by design a
temporary measure — in effect a total moratorium on any
construction on First English’s property —— while the County
conducted a study to determine what uses and what struc-
tures, if any, could be permitted on this property consistent
with considerations of safety. We do not read the U.S.
Supreme Court's decision in First English as converting
moratoriums and other interim land use restrictions into
unconstitutional “temporary takings” requiring compensation
unless, perhaps, if these interim measures are unreasonable
in purpose, duration or scope. On its face, Ordinance 11,855
is reasonable in all these dimensions.
The ordinance had the legitimate avowed purpose of
preserving the status quo while the County studied the
problem and devised a permanent ordinance which would
allow only safe uses and the construction of safe structures in
and near the river bed. The restrictions in Ordinance 11,855
were reasonably related to the achievement of this objective.
Given the seriousness of the safety concerns raised by the
presence of any structures on this property, we find it was
entirely reasonable to ban the construction or reconstruction
of any structures for the period necessary to conduct an
extensive study and fully develop persuasive evidence about
what, if any, structures and uses would be compatible with
-A 27-
the preservation of life and health of future occupants of this
property and other properties in this geographic area.
We do not find the ordinance remained in effect for an
unreasonable period of time beyond that which would be
justified to conduct the necessary studies of this situation and
devise a suitable permanent ordinance. The study was
completed and a report containing recommended restrictions
submitted in less than two years. County decision-makers
took another six months to hold hearings, ponder and pass
the somewhat less restrictive permanent ordinance. These
periods are reasonable especially given the complexity of the
issues to be studied and resolved. Nor were the restrictions
imposed by the interim ordinance unreasonable in scope
given the seriousness of the danger posed by the construction
of new structures in Lutherglen and nearby properties. We
cannot say that without a thorough-going study it would have
been reasonably feasible to identify amy structure which
could be safely permitted on these properties. Thus we find
the time taken by this study and the time this interim or-
dinance remained in effect to be well within the bounds of
reason. The County owed ihis landowner no special duty to
give priority to the study of Lutherglen over the study of
other properties which might pose a danger to safety. Nor
did it owe any of these landowners a duty to cut any comers
in the study or take any risks that anything might be over-
looked which could produce a permanent ordinance less
restrictive than public safety concerns demanded.
-A 28-
IV. SINCE THERE WAS NO UNCONSTITU-
TIONAL “TAKING” OF LUTHERGLEN,
FIRST ENGLISH HAS NOT STATED A
CAUSE OF ACTION ENTITLING IT TO
COMPENSATION
Since we hold the instant complaint is insufficient to state
a cause of action that the timitations imposed by the interim
ordinance represented an unconstitutional “taking” of First
English’s property it follows First English is not entitled to
compensation for a “temporary taking” between the time the
interim ordinance was enacted and it was superseded by
the somewhat less restrictive permanent ordinance. The
Supreme Court's majority opinion in First English held
property owners are entitled to compensation for so-called
“temporary takings,” but only where the government regula-
tion in question is ultimately ruled to have worked an
unconstitutional taking. “Invalidation of the ordinance or its
successor ordinance after this period of time, though convert-
ing the taking into a ‘temporary’ one, is not a sufficient
remedy to meet the demands of the Just Compensation
Clause.... We merely hold that where the government's
activities have already worked a taking of all use of property,
no subsequent action by the government can relieve it of the
duty to provide compensation for the period during which the
taking was effective.” (First Lutheran Church v. Los
Angeles County, supra, 482 U.S. at pp. 319, 321.) Here we
find interim ordinance 11,855 did not “work a taking of all
use” of appellant's property. Consequently, there is no “duty
to provide compensation for the period during which [that
ordinance] was effective.”
-A 29-
DISPOSITION
The judgment dismissing the cause of action for inverse
condemnation based on enactment of Ordinance 11,855 is
affirmed for the reasons recited in this opinion. In all other
respects the opinion this court filed on June 25, 1985, and in
which remittitur issued on November 4, 1985, remains in full
force and effect. Accordingly, the case is remanded for
further proceedings consistent with that opinion as to the
cause of action for inverse condemnation based on cloud
seeding.
CERTIFIED FOR PUBLICATION
JOHNSON, J.
We concur:
LILLIE, P.J.
WOODS (FRED), J.
APPENDIX B
~ oe
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
COURT OF APPEAL
SECOND DIST.
FILED
JUNE 23, 1989
Robert N. Wilson, Clerk
FIRST ENGLISH EVANGELICAL
LUTHERAN CHURCH OF GLENDALE,
a California corporation,
Plaintiff and Appellant,
v.
COUNTY OF LOS ANGELES,
CALIFORNIA, and LOS ANGELES
COUNTY FLOOD CONTROL DISTRICT,
Defendants and Respondents.
NO. B003702
(Super.Ct. No. C 273634)
ORDER MODIFYING OPINION
AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on May 26,
1989, be modified in the following particulars:
ey
1. On page 21, line 5 from the top of the page change the
word “use” to “uses” and on line 6, after the words “all uses”
insert “of that property” so the complete sentence now reads:
“There, as will be recalled, the Supreme Court
majority clearly stated the land use regulation
involved in this case — Interim Ordinance 11,855
— would not constitute a compensable “taking” if
the regulation did not deprive First English of “all
uses” of its property or even assuming it prohibited
“all uses” of that property if that deprivation of
“all uses” promoted public safety.”
2. On page 22, last sentence of footnote 10, delete the
word “(/bid.).”
3. On page 23, line 11 of the first full paragraph, insert
“First English’s complaint stated solely a facial challenge to
the interim ordinance and as far as this ordinance itself was”
before the word “concerned” so the sentence now reads:
“First English’s complaint stated solely a facial
challenge to the interim ordinance and as far as
this ordinance itself was concerned, many camping
activities could continue on this property.”
4. On page 31, line 10 from the bottom of the page
substitute the words “an automatic” for the word “a” so the
sentence now reads:
“The fact the zoning restrictions necessary to the
preservation of life and health may cause a diminu-
tion in the use and economic value of this property
does not create an automatic legal entitlement to
compensation for that loss of use and value”.
Appellant’s petition for rehearing is denied.
No change in judgment.
APPENDIX C
ye
ORDER DENYING REVIEW AFTER
JUDGMENT BY THE COURT OF APPEAL
Second Appellate District, Division Seven,
No. B003702 — S010941
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
IN BANK
SUPREME COURT
FILED
AUG 25, 1989
Robert Wandruff, Clerk
FIRST ENGLISH EVANGELICAL
LUTHERAN CHURCH GLENDALE,
Appellant
Vv.
COUNTY OF LOS ANGELES,
Respondent.
Appellant’s petition for review DENIED.
Lucas, C.J., Panelli, J. and Kaufman, J., are of the opinion
the petition should be granted.
LUCAS
Chief Justice
*
APPENDIX D
«1.
LOS ANGELES COUNTY ORDINANCE NO. 11,855.
An interim ordinance temporarily prohibiting the con-
struction, reconstruction, placement or enlargement of any
building or structure within any portion of the interim flood
protection area delineated within Mill Creek, vicinity of
Hidden Springs, declaring the urgency thereof and that this
ordinance shall take immediate effect.
The Board of Supervisors of the County of Los Angeles
does ordain as follows:
Section 1. A person shall not construct, reconstruct, place
or enlarge any building or structure, any portion of which is,
or will be, located within the outer boundary lines of the
interim flood protection area located in Mill Creek Canyon,
vicinity of Hidden Springs, as shown on Map No. 63 ML 82,
attached hereto and incorporated herein by reference as
though full set forth.
Section 2. Violation of this ordination is punishable by a
fine of not more than five hundred dollars ($500) or im-
prisonment in the County Jail for a period of not more than
six (6) months or by both such fine and imprisonment. Each
day during any portion of which any violation of any provi-
-sion of this ordinance is committed, continued or permitted,
constitutes a separate offense.
Section 3. If any provision or clause of this ordinance or
the application thereof to any persons or circumstances is
held invalid, such invalidity shall not affect other provisions
or application of the ordinance which can be given effect
without the invalid provision or application, and to this end
the provisions of this ordinance are declared to be severable.
Section 4. Studies are now under way by the Department
of Regional Planning in connection with the County Engineer
and the Los Angeles County Flood Control District, to
develop permanent flood protection areas for Mill Creek and
other specific areas as part of a comprehensive flood plain
«HO.
management project. Mapping and evaluation of flood data
has progressed to the point where an interim flood protection
area in Mill Creek can be designated. Development is now
occurring which will encroach within the limits of the
permanent flood protection area and which will be incom-
patible with the anticipated uses to be permitted within the
permanent flood protection area. If this ordinance does not
take immediate effect, said uses will be established prior to
the contemplated ordinance amendment, and once established
may continue after such amendment has been made because
of the provisions of Article 9 of Chapter 5 of Ordinance No.
1494.
By reason of the foregoing facts this ordinance is urgently
required for the immediate preservation of the public health
and safety, and the same shall take effect immediately upon
passage thereof.
oP
LOS ANGELES COUNTY CODE §22.44.010.
SUPPLEMENTAL DISTRICTS DESIGNATED.
As used in this Title 22, “supplemental districts” means:
A. Equestrian districts;
B. Setback districts;
C. Flood protection districts;
D. Community standards districts.
(Ord. 1494 Ch. 9 Art. 1 § 901, 1927.)
LOS ANGELES COUNTY CODE §22.44.020.
USE RESTRICTIONS. A person shall not use any premises
in any supplemental district except as hereinafter specifically
permitted in this Title 22, and subject to all regulations and
conditions enumerated in this title.
(Ord. 1494 Ch. 9 Art. 1 § 901.1, 1927.)
LOS ANGELES COUNTY CODE §22.44.220.
BUILDING RESTRICTIONS. A person shall not use, erect,
construct, move onto or, notwithstanding Subsections B and
C of Section 22.56.1510, alter, modify, enlarge or recon-
struct any building or structure within the boundaries of a
flood protection district except as provided herein:
A. Accessory buildings and structures that will not
substantially impede the flow of water, including sewer, gas,
electrical, and water systems, approved by the County
Engineer pursuant to Section 308 of Ordinance 2225, the
Building Code, set out at Title 26 of this code;
B. Automobile parking facilities incidental to a
lawfully established use;
C. Flood-control structures approved by the Chief
Engineer of the Los Angeles County Flood Control District.
(Ord. 1494 Ch. 9 Art. 4 § 904.2, 1927.)
y S
LOS ANGELES COUNTY CODE §22.44.230.
LISTS OF DISTRICTS. The following flood protection
districts are added by reference, together with all maps and
the provisions pertaining thereto:
District Ordinance Date of
Number District Name Of Adoption Adoption
* * *
3 Mill Creek 12413 8-11-81
(Ord. 12413 § 1, 1981)
oe *
No.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1989
First English Evangelical Lutheran Church
of Glendale, a California corporation,
Petitioner,
vs.
County of Los Angeles, California,
Respondent.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
—~S we
a
Donald A. Johnson, being first duly sworn, deposes and says: I am a citizen
of the United States and a resident of or employed in the county aforesaid. | am
over the age of 18 years and not a party to the said action. My business address is
3550 Wilshire Boulevard, Suite 916, Los Angeles, California 90010. On this date,
I served the within PETITION FOR WRIT OF CERTIORARI on the interested
parties in said action by placing three true copies thereof with first-class postage
fully prepaid, in the United States post office mailbox at Los Angeles, California,
in sealed envelopes addressed as follows:
DEWITT W. CLINTON JACK R. WHITE, ESQ.
COUNTY COUNSEL HILL, FARRER & BURRILL
CHARLES J. MOORE 445 South Figueroa Street
Prin. Deputy County Counsel 35 Floor, Union Pank Bldg.
500 West Temple Street Los Angeles, CA 90071
Los Angeles, CA 90012
That affiant makes this service, for MICHAEL M. BERGER, Counse! of Record,
of FADEM, BERGER & NORTON, Attorneys for Petitioner herein, and that to the
best of my knowledge all the persons required to be served in said action have
been served.
—
wa Pa a d wn cma
Donald A. a
On November 21, 1989, before me, the undersigned, a Notary Public in and for
said County and State, personally appeared Donald A. Johnson, known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument, and acknowledged to me that he executed the
ficial seal | .
OFFICIAL SEAL Mk Wiss
) otaescsuc seamen, | Nolary Public in and for
said county and state
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