447 U.S. 255
Argued April 15, 1980.
Decided June 10, 1980.
FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed.2d 499.
appellants had acquired five acres of unimproved land in appellee city for
residential development, the city was required by California law to
prepare a general plan governing land use and the development of open-space
land. In response, the
city adopted zoning ordinances that placed appellants' property in a zone
in which property may be devoted to one-family dwellings, accessory
buildings, and open-space uses, with density restrictions permitting
appellants to build between one and five single-family residences on their
tract. Without having sought approval for development of their tract under
the ordinances, appellants brought suit against the city in state court,
alleging that the city had taken their property without just compensation
in violation of the Fifth and Fourteenth Amendments, and seeking inter
alia, a declaration that the zoning ordinances were facially
city's demurrer claiming that the complaint failed to state a cause of
action was sustained by the trial court, and the California Supreme Court
The zoning ordinances on their face do not take appellants'
property without just compensation.
The ordinances substantially advance the legitimate governmental goal of
discouraging premature and unnecessary conversion of open-space land to
urban uses and are proper exercises of the city's police power to protect
its residents from the ill effects of urbanization.
Appellants will share with other owners the benefits and burdens of the
city's exercise of such police power, and in assessing the fairness of the
ordinances these benefits must be considered along with any diminution in
market value that appellants might suffer.
Although the ordinances limit development, they neither prevent the best
use of appellants' land nor extinguish a fundamental attribute of
ownership. Since at this juncture appellants are free to pursue their
reasonable investment expectations by submitting a development plan to the
city, it cannot be said that the impact of the ordinances has denied them
the "justice and fairness" guaranteed by the Fifth and
Fourteenth Amendments. P.
Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25, affirmed.
Gideon Kanner, Los Angeles, Cal., for appellants.
Clement Shute, Jr., San Francisco, Cal., for appellee.
Mr. Justice POWELL delivered the opinion of the Court.
question in this case is whether municipal zoning ordinances took
appellants' property without just compensation in violation of the Fifth
and Fourteenth Amendments.
the appellants acquired five acres of unimproved land in the city of
Tiburon, Cal., for residential development, the city was required by state
law to prepare a general plan governing both land use and the development
of open- space land. Cal.Govt.Code
Ann. §§ 65302(a) and (e) (West Supp.1979);
see § 65563. In
response, the city adopted two ordinances that modified existing zoning
Cal., Ordinances Nos. 123 N.S. and 124 N.S. (June 28, 1973).
The zoning ordinances placed the appellants' property in "RPD‑1,"
a Residential Planned Development and Open Space Zone. RPD‑1
property may be devoted to one-family dwellings, accessory buildings, and
open-space uses. Density restrictions permit the appellants to build
between one and five single-family residences on their 5-acre tract.
The appellants never have sought approval for development of their
land under the zoning ordinances. [FN1]
FN1. Shortly after
it enacted the ordinances, the city began eminent domain proceedings
against the appellants' land. The
following year, however, the city abandoned those proceedings, and its
complaint was dismissed. The
appellants were reimbursed for costs incurred in connection with the
The appellants filed a two-part complaint against the city in State
Superior Court. The
first cause of action sought $2 million in damages for inverse
condemnation. [FN2] The
second cause of action requested a declaration that the zoning ordinances
were facially unconstitutional.
The gravamen of both claims was the appellants' assertion that the
city had taken their property without just compensation in violation of
the Fifth and Fourteenth Amendments.
The complaint alleged that land in Tiburon has greater value than
any other suburban property in the State of California.
App. 3. The ridgelands
that appellants own "possess magnificent views of San Francisco Bay
and the scenic surrounding areas [and] have the highest market values of
all lands" in Tiburon. Id.,
at 4. Rezoning of the
land "forever prevented [its] development for residential use.
. . ." Id., at 5. Therefore,
the appellants contended, the city had "completely destroyed the
value of [appellants'] property for any purpose or use whatsoever.
. . ." Id., at 7.
Inverse condemnation should be distinguished from eminent domain.
Eminent domain refers to a legal proceeding in which a government
asserts its authority to condemn property.
United States v. Clarke, 445 U.S. 253, 255‑258, 100 S.Ct.
1127, 1129‑1130, 63 L.Ed.2d 373 (1980). Inverse condemnation is
"a shorthand description of the manner in which a landowner recovers
just compensation for a taking of his property when condemnation
proceedings have not been instituted."
Id., at 257, 100 S.Ct. at 1130.
FN3. The appellants also contended that the city's aborted attempt
to acquire the land through eminent domain had destroyed the use of the
land during the pendency of the condemnation proceedings. App. 10.
The city demurred,
claiming that the complaint failed to state a cause of action.
The Superior Court sustained the demurrer, [FN4] and the California
Supreme Court affirmed. 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979).
The State Supreme Court 259 first considered
the inverse condemnation claim.
It held that a landowner who challenges the constitutionality of a
zoning ordinance may not "sue in inverse condemnation and thereby
transmute an excessive use of the police power into a lawful taking for
which compensation in eminent domain must be paid."
Id., at 273, 157 Cal.Rptr. at 375, 598 P.2d, at 28.
The sole remedies for such a taking, the court concluded, are
mandamus and declaratory judgment.
Turning therefore to the appellants' claim for declaratory relief,
the California Supreme Court held that the zoning ordinances had not
deprived the appellants of their property
without compensation in violation of the Fifth Amendment. [FN5]
FN4. The State Superior Court granted the appellants leave to amend
the cause of action seeking a declaratory judgment, but the appellants did
not avail themselves of that opportunity.
FN5. The California Supreme Court also rejected appellants'
argument that the institution and abandonment of eminent
domain proceedings themselves constituted a taking.
The court found that the city had acted reasonably
that general municipal planning decisions do not violate the
We noted probable
jurisdiction. 444 U.S. 1011,
100 S.Ct. 658, 62 L.Ed.2d 639 (1980).
We now affirm the holding that the zoning ordinances on their face
does not take the appellants' property without just compensation. [FN6]
FN6. The appellants also contend that the state courts erred by
sustaining the demurrer despite their uncontroverted allegations that the
zoning ordinances would "forever preven[t] . . . development
for residential use," id., at 5, and "completely destro[y] the
value of [appellant's] property for any purpose or use whatsoever
. . .," id., at 7.
The California Supreme Court compared the express terms of the
zoning ordinances with the factual allegations of the complaint.
The terms of the ordinances permit construction of one to five
residences on the appellants' 5-acre tract.
The court therefore rejected the contention that the ordinances
prevented all use of the land. Under California practice, allegations in a complaint
are taken to be true unless "contrary to law or to a fact of which a
court may take judicial notice."
Dale v. City of Mountain View, 55 Cal.App.3d 101, 105, 127 Cal.Rptr.
520, 522 (1976); see Martinez
v. Socoma Cos., 11 Cal.3d 394, 399-400, 113 Cal.Rptr. 585, 588, 521 P.2d
841, 844 (1974). California
courts may take judicial notice of municipal ordinances.
Cal.Evid.Code Ann. § 452(b) (West 1966).
In this case, the State Supreme Court merely rejected allegations
inconsistent with the explicit terms of the ordinance under review.
The appellants' objection to the State Supreme Court's application
of state law does not raise a federal question appropriate for review by
this Court. See
Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 461, 27 S.Ct.
556, 557, 51 L.Ed. 879 (1907).
The Fifth Amendment guarantees that private property shall not
"be taken for public use, without just compensation."
The appellants' complaint framed the question as whether a zoning
ordinance that prohibits all development of their land effects a taking
under the Fifth and Fourteenth Amendments.
The California Supreme Court rejected the appellants'
characterization of the issue by holding, as a matter of state law, that
the terms of the challenged ordinances allow the appellants to construct
between one and five residences on their property.
The court did not consider whether the zoning ordinances would be
unconstitutional if applied to prevent appellants from building five
homes. Because the appellants
have not submitted a plan for development of their property as the
ordinances permit, there is as yet no concrete controversy regarding the
application of the specific zoning provisions.
See Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct.
1716, 1719, 32 L.Ed.2d 317 (1972).
See also Goldwater v. Carter, 444 U.S. 996, 997, 100 S.Ct. 533,
534, 62 L.Ed.2d 428 (1979) (POWELL, J., concurring).
Thus, the only question properly before us is whether the mere
enactment of the zoning ordinances constitutes a taking.
of a general zoning law to particular property effects a taking if the
ordinance does not substantially advance legitimate state interests, see
Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842
(1928), or denies an owner economically viable use of his land, see Penn
Central Transp. Co. v. New York City, 438 U.S. 104, 138, n. 36, 98 S.Ct.
2646, 2666, 57 L.Ed.2d 631 (1978).
The determination that governmental action constitutes a taking is,
in 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 261 when property has been taken, see Kaiser Aetna v. United
States, 444 U.S. 164, 100 S.Ct. 383, 62 S.Ct. 332 (1979), the question
necessarily requires a weighing of private and public interests.
The seminal decision in Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct.
114, 71 L.Ed. 303 (1926), is illustrative.
In that case, the landowner challenged the constitutionality of a
municipal ordinance that restricted commercial development of his property. Despite alleged diminution in value of the owner's land, the
Court held that the zoning laws were facially constitutional.
They bore a substantial relationship to the public welfare, and
their enactment inflicted no irreparable injury upon the landowner.
Id., at 395-397, 47 S.Ct., at 121.
this case, the zoning ordinances substantially advance legitimate
governmental goals. The
State of California has determined that the development of local open-space
plans will discourage the "premature and unnecessary conversion of
open-space land to urban uses."
Cal.Govt.Code Ann. § 65561(b) (West Supp.1979). [FN7]
The specific zoning regulations at issue are exercises of the
city's police power to protect the residents of Tiburon from the ill
effects of urbanization. [FN8] Such governmental purposes long have been recognized as
legitimate. See Penn
Central Transp. Co. v. New York City, supra, 438 U.S., at 129, 98 S.Ct.,
at 2662; Village of Belle
262 Boraas, 416
U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974);
Euclid v. Ambler Co., supra, 272 U.S., at 394‑395, 47 S.Ct.,
FN7. The State also recognizes that the preservation of open space
is necessary "for the assurance of the continued availability of land
for the production of food and fiber, for the enjoyment of scenic beauty,
for recreation and for the use of natural resources."
Cal.Govt.Code Ann. § 65561(a) (West Supp.1979);
see Tiburon, Cal., Ordinance No. 124 N.S. §§ 1(f) and (h).
FN8. The City Council of Tiburon found that "[i]t is in the
public interest to avoid unnecessary conversion of open space land to
strictly urban uses, thereby protecting against the resultant adverse
impacts, such as air, noise and water pollution, traffic congestion,
destruction of scenic beauty, disturbance of the ecology and environment,
hazards related to geology, fire and flood, and other demonstrated
consequences of urban sprawl." Id.,
place appellants' land in a zone limited to single‑family dwellings,
accessory buildings, and open-space uses.
Construction is not permitted until the builder submits a plan
compatible with "adjoining patterns of development and open
Cal., Ordinance No. 123 N.S. § 2(F).
In passing upon a plan, the city also will consider how well the
proposed development would preserve the surrounding environment and
whether the density of new construction will be offset by adjoining open
spaces. Ibid. The zoning ordinances benefit the appellants as well as
the public by serving the city's interest in assuring careful and orderly
development of residential property with provision for open-space areas.
There is no indication that the appellants' 5-acre tract is the
only property affected by the ordinances. Appellants therefore will share
with other owners the benefits and burdens of the city's exercise of its
police power. In
assessing the fairness of the zoning ordinances, these benefits must be
considered along with any diminution in market value that the appellants
the ordinances limit development, they neither prevent the best use of
appellants' land, see United States v. Causby, 328 U.S. 256, 262, and n.
7, 66 S.Ct. 1062, 1066, 90 L.Ed. 1206 (1946), nor extinguish a fundamental
attribute of ownership, see Kaiser Aetna v. United States, supra, at 179-180,
100 S.Ct., at 393. The
appellants have alleged that they wish to develop the land for residential
purposes, that the land is the most expensive suburban property in the
State, and that the best possible use of the land is residential.
App. 3-4. The
California Supreme Court has decided, as a matter of state law, that
appellants may be permitted to build as many as five houses on their five
acres of prime residential property.
At this juncture, the appellants are free to pursue their
reasonable investment expectations by submitting a development plan to
local officials. Thus,
it cannot be said that the impact of general land-use regulations has
denied 263 appellants the
"justice and fairness" guaranteed by the Fifth and Fourteenth
Amendments. SeePenn Central
Transp. Co. v. New York City, 438 U.S., at 124, 98 S.Ct., at 2659. [FN9]
FN9. Appellants also claim that the city's precondemnation
activities constitute a taking.
See nn. 1, 3, and 5, supra.
The State Supreme Court correctly rejected the contention that the
municipality's good-faith planning activities, which did not result in
successful prosecution of an eminent domain claim, so burdened the
appellants' enjoyment of their property as to constitute a taking.
See also City of Walnut Creek v. Leadership Housing Systems, Inc.,
73 Cal.App.3d 611, 620-624, 140 Cal.Rptr. 690, 695-697 (1977).
Even if the appellants' ability to sell their property was limited
during the pendency of the condemnation proceeding, the appellants were
free to sell or develop their property when the proceedings ended.
Mere fluctuations in value during the process of governmental
decisionmaking, absent extraordinary delay, are "incidents of
ownership. They cannot
be considered as a 'taking' in the constitutional sense."
Danforth v. United States, 308 U.S. 271, 285, 60 S.Ct. 231, 236, 84
L.Ed. 240 (1939). See
Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (CA8),
cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979);
Reservation Eleven Associates v. District of Columbia, 136
U.S.App.D.C. 311, 315‑316, 420 F.2d 153, 157‑158 (1969);
Virgin Islands v. 50.05 Acres of Land, 185 F.Supp. 495, 498 (V.I.1960); 2
J. Sackman & P. Rohan, Nichols' Law of Eminent Domain § 6.13 (3d
The State Supreme
Court determined that the appellants could not recover damages for inverse
condemnation even if the zoning ordinances constituted a taking.
The court stated that only mandamus and declaratory judgment are
remedies available to such a landowner.
Because no taking has occurred, we need not consider whether a
State may limit the remedies available to a person whose land has been
taken without just compensation.
The judgment of the
Supreme Court of California is