482 U.S. 304
Argued Jan. 14, 1987.
Decided June 9, 1987.
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. 499 (1906).
In 1957, appellant church purchased land on which it operated
a campground, known as "Lutherglen," as a retreat
center and a recreational area for handicapped children.
The land is located in a canyon along the banks of
a creek that is the natural drainage channel for a watershed
1978, a flood destroyed Lutherglen's buildings.
In response to the flood, appellee Los Angeles County,
in 1979, adopted an interim ordinance prohibiting the construction
or reconstruction of any building or structure in an interim
flood protection area that included the land on which Lutherglen
had stood. Shortly
after the ordinance was adopted, appellant filed suit in a
California court, alleging, inter alia, that the ordinance
denied appellant all use of Lutherglen, and seeking to recover
damages in inverse condemnation for such loss of use.
The court granted a motion to strike the allegation,
basing its ruling on Agins v. Tiburon, 24 Cal.3d 266, 157
Cal.Rptr. 372, 598 P.2d 25 (1979), aff'd on other grounds,
447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), in which
the California Supreme Court held that a landowner may not
maintain an inverse condemnation suit based upon a "regulatory"
taking, and that compensation is not required until the challenged
regulation or ordinance has been held excessive in an action
for declaratory relief or a writ of mandamus and the government
has nevertheless decided to continue the regulation in effect.
Because appellant alleged a regulatory taking and sought
only damages, the trial court deemed the allegation that the
ordinance denied all use of Lutherglen to be irrelevant.
The California Court of Appeal affirmed.
The claim that the Agins case improperly held that the Just
Compensation Clause of the Fifth Amendment does not require
compensation as a remedy for "temporary" regulatory
takings -- those regulatory takings which are ultimately invalidated
by the courts -- is properly presented in this case.
In earlier cases, this Court was unable to reach the
question because either the regulations considered to be in
issue by the state courts did not effect a taking, or the
factual disputes yet to be resolved by state authorities might
still lead to the conclusion that no taking had occurred.
Here, the California Court of Appeal assumed
305 that the complaint sought damages
for the uncompensated "taking" of all use of Lutherglen
by the ordinance, and relied on the California Supreme Court's
Agins decision for the conclusion that the remedy for the
taking was limited to nonmonetary relief, thus isolating the
remedial question for this Court's consideration.
MacDonald, Sommer & Frates v. Yolo County, 477
U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986);
Williamson County Regional Planning Comm'n v. Hamilton
Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985);
San Diego Gas & Electric Co. v. San Diego, 450
U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981);
and Agins, all distinguished.
Under the Just Compensation Clause, where the government has
"taken" property by a land-use regulation, the landowner
may recover damages for the time before it is finally determined
that the regulation constitutes a "taking" of his
Clause is designed not to limit the governmental interference
with property rights per se, but rather to secure compensation
in the event of otherwise proper interference amounting to
a taking. A
landowner is entitled to bring an action in inverse condemnation
as a result of the self-executing character of the constitutional
provision with respect to compensation.
While the typical taking occurs when the government
acts to condemn property in the exercise of its power of eminent
domain, the doctrine of inverse condemnation is predicated
on the proposition that a taking may occur without such formal
regulatory takings which, as here, deny a landowner all use
of his property, are not different in kind from permanent
takings for which the Constitution clearly requires compensation.
Once a court determines that a taking has occurred,
the government retains the whole range of options already
available -- amendment of the regulation, withdrawal of the
invalidated regulation, or exercise of eminent domain.
But 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.
Invalidation of the ordinance without payment of fair
value for the use of the property during such period would
be a constitutionally insufficient remedy.
C.J., delivered the opinion of the Court, in which BRENNAN,
WHITE, MARSHALL, POWELL, and SCALIA, JJ., joined.
STEVENS, J., filed a dissenting opinion, in Parts I
and III of which BLACKMUN and O'CONNOR, JJ., joined, post,
M. Berger argued the cause for appellant. With him on the
briefs were Jerrold A. Fadem.
Jack R. White argued the cause for appellee.
With him on the brief were DeWitt W. Clinton, Charles
J. Moore, and Darlene B. Fischer.*
Briefs of amici curiae urging reversal were filed for the
American College of Real Estate Lawyers by Robert O. Hetlage,
David A. Richards, Eugene J. Morris, and John P. Trevaskis,
Jr.; for the California Association of Realtors by William
M. Pfeiffer; for the California Building Industry Association
by Gideon Kanner; for the National Association of Home Builders
by Kenneth B. Bley and Gus Bauman; for the National Association
of Realtors by William D. North; and for the Pacific Legal
Foundation et al. by Ronald A. Zumbrun and Robert K. Best.
of amici curiae urging affirmance were filed for the United
States by Solicitor General Fried, Assistant Attorney General
Habicht, Deputy Solicitor General Ayer, Deputy Assistant Attorneys
General Marzulla, Hookano, and Kmiec, and Edwin S. Kneedler
and Peter R. Steenland, Jr.; for the State of California et
al. by John K. Van de Kamp, Attorney General of California,
Andrea Sheridan Ordin, Chief Assistant Attorney General, Richard
C. Jacobs, N. Gregory Taylor, and Theodora Berger, Assistant
Attorneys General, and Craig C. Thompson and Richard M. Frank,
Deputy Attorneys General, joined by the Attorneys General
for their respective States as follows: Harold M. Brown of
Alaska, John Steven Clark of Arkansas, Jim Smith of Florida,
Corinne K. A. Watanabe of Hawaii, Neil F. Hartigan of Illinois,
James E. Tierney of Maine, Francis X. Bellotti of Massachusetts,
Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi,
William L. Webster of Missouri, Stephen E. Merrill of New
Hampshire, Robert Abrams of New York, Nicholas J. Spaeth of
North Dakota, Michael Turpin of Oklahoma, T. Travis Medlock
of South Carolina, Mark V. Meierhenry of South Dakota, Jim
Maddox of Texas, David L. Wilkinson of Utah, Jeffrey L. Amestoy
of Vermont, Mary Sue Terry of Virginia, Kenneth O. Eikenberry
of Washington, Archie G. McClintock of Wyoming, and Hector
Rivera Cruz of Puerto Rico; for the city of Los Angeles et
al. by Gary R. Netzer, Claudia McGee Henry, and Anthony Saul
Alperin; for the National Association of Counties et al. by
Benna Ruth Solomon, Joyce Holmes Benjamin, and Beate Bloch;
and for the Conservation Foundation et al. by Fred P. Bosselman
Justice REHNQUIST delivered the opinion of the Court.
this case the California Court of Appeal held that a landowner
who claims that his property has been "taken" by
a land-use regulation may not recover damages for the time
it is finally determined that the regulation
constitutes a "taking" of his property.
We disagree, and conclude that in these circumstances
the Fifth and Fourteenth Amendments to the United States Constitution
would require compensation for that period.
1957, appellant First English Evangelical Lutheran Church
purchased a 21-acre parcel of land in a canyon along the banks
of the Middle Fork of Mill Creek in the Angeles National Forest.
The Middle Fork is the natural drainage channel for
a watershed area owned by the National Forest Service.
Twelve of the acres owned by the church are flat land,
and contained a dining hall, two bunkhouses, a caretaker's
lodge, an outdoor chapel, and a footbridge across the creek.
The church operated on the site a campground, known
as "Lutherglen," as a retreat center and a recreational
area for handicapped children.
July 1977, a forest fire denuded the hills upstream from Lutherglen,
destroying approximately 3,860 acres of the watershed area
and creating a serious flood hazard.
Such flooding occurred on February 9 and 10, 1978,
when a storm dropped 11 inches of rain in the watershed.
The runoff from the storm overflowed the banks of the
Mill Creek, flooding Lutherglen and destroying its buildings.
response to the flooding of the canyon, appellee County of
Los Angeles adopted Interim Ordinance No. 11,855 in January
ordinance provided that "[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...."
App. to Juris. Statement A31.
The ordinance was effective immediately because the
county determined that it was "required for the immediate
preservation of the public health and safety...."
Id., at A32. The interim flood protection
area described by the ordinance included the flat areas on
either side of Mill Creek on which Lutherglen had stood.
The church filed a complaint in the
Superior Court of California a little more than a month after
the ordinance was adopted.
As subsequently amended, the complaint alleged two
claims against the county and the Los Angeles County Flood
The first alleged that the defendants were liable under
Cal.Govt. Code Ann. § 835 (West 1980) [FN1] for dangerous conditions
on their upstream properties that contributed to the flooding
As a part of this claim, appellant also alleged that
"Ordinance No. 11,855 denies [appellant] all use of Lutherglen."
App. 12, 49. The second claim sought to
recover from the Flood Control District in inverse condemnation
and in tort for engaging in cloud seeding during the storm
that flooded Lutherglen.
Appellant sought damages under each count for loss
of use of Lutherglen.
The defendants moved to strike the portions of the
complaint alleging that the county's ordinance denied all
use of Lutherglen, on the view that the California Supreme
Court's decision in Agins v. Tiburon, 24 Cal.3d 266, 157 Cal.Rptr.
372, 598 P.2d 25 (1979), aff'd on other grounds, 447 U.S.
255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), rendered the allegation
"entirely immaterial and irrelevant[, with] no bearing
upon any conceivable cause of action herein."
See Cal.Civ.Proc.Code Ann. § 436(a) (West Supp.1987)
("The court may ... [s]trike out any irrelevant, false,
or improper matter inserted in any pleading").
Section 835 of the California Government Code establishes
conditions under which a public entity may be liable "for
injury caused by a dangerous condition of its property...."
In Agins v.
Tiburon, supra, the California Supreme Court decided that
a landowner may not maintain an inverse condemnation suit
in the courts of that State based upon a "regulatory"
taking. 24 Cal.3d,
at 275-277, 157 Cal.Rptr., at 376-78, 598 P.2d, at 29-31.
In the court's view, maintenance of such a suit would
allow a landowner to force the legislature to exercise its
power of eminent domain. Under this decision, then,
compensation is not required until the challenged regulation
or ordinance has been held excessive in an action for declaratory
309 relief or a writ of mandamus
and the government has nevertheless decided to continue the
regulation in effect. Based on this decision, the trial court
in the present case granted the motion to strike the allegation
that the church had been denied all use of Lutherglen.
It explained that "a careful re-reading of the
Agins case persuades the Court that when an ordinance, even
a non-zoning ordinance, deprives a person of the total use
of his lands, his challenge to the ordinance is by way of
declaratory relief or possibly mandamus."
Because the appellant alleged a regulatory taking and
sought only damages, the allegation that the ordinance denied
all use of Lutherglen was deemed irrelevant. [FN2]
The trial court also granted defendants' motion for judgment
on the pleadings on the second cause of action, based on cloud
seeding. It limited trial on the first
cause of action for damages under Cal.Govt. Code Ann. § 835
(West 1980), rejecting the inverse condemnation claim.
At the close of plaintiff's evidence, the trial court
granted a nonsuit on behalf of defendants, dismissing the
the California Court of Appeal read the complaint as one seeking
"damages for the uncompensated taking of all use
of Lutherglen by County Ordinance No. 11,855...."
App. to Juris. Statement A13‑A14.
It too relied on the California Supreme Court's decision
in Agins in rejecting the cause of action, declining appellant's
invitation to reevaluate Agins in light of this Court's opinions
in San Diego Gas & Electric Co. v. San Diego, 450 U.S.
621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981).
The court found itself obligated to follow Agins "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...." App. to Juris. Statement A16. It
accordingly affirmed the trial court's decision to strike
the allegations concerning appellee's ordinance. [FN3]
The California Supreme Court denied review.
FN3. The California
Court of Appeal also affirmed the lower court's orders limiting
the issues for trial on the first cause of action, granting
a nonsuit on the issues that proceeded to trial, and dismissing
the second cause of action -- based on cloud seeding -- to
the extent it was founded on a theory of strict liability
in tort. The
court reversed the trial court's ruling that the second cause
of action could not be maintained against the Flood Control
District under the theory of inverse condemnation.
The case was remanded for further proceedings on this
claim. These circumstances alone, apart from the more particular
issues presented in takings cases and discussed in the text,
require us to consider whether the pending resolution of further
liability questions deprives us of jurisdiction because we
are not presented with a "final judgmen[t] or decre [e]"
within the meaning of 28 U.S.C. § 1257.
We think that this case is fairly characterized as
one "in which the federal issue, finally decided by the
highest court in the State [in which a decision could be had],
will survive and require decision regardless of the outcome
of future state-court proceedings."
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 480,
95 S.Ct. 1029, 1038, 43 L.Ed.2d 328 (1975).
As we explain infra, at ---- - ----, the California
Court of Appeal rejected appellant's federal claim that it
was entitled to just compensation from the county for the
taking of its property;
this distinct issue of federal law will survive and
require decision no matter how further proceedings resolve
the issues concerning the liability of the Flood Control District
for its cloud seeding operation.
This appeal followed, and we noted probable
U.S. 1003, 106 S.Ct. 3292, 92 L.Ed.2d 708 (1986).
Appellant asks us to hold that the California Supreme
Court erred in Agins v. Tiburon in determining that the Fifth
Amendment, as made applicable to the States through the Fourteenth
Amendment, does not require compensation as a remedy for "temporary"
regulatory takings -- those regulatory takings which are ultimately
invalidated by the courts. [FN4] 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
MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340,
106 S.Ct. 2561, 91 L.Ed.2d 285 (1986);
Williamson County Regional Planning Comm'n v. Hamilton
Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985);
San Diego Gas & Electric Co., supra;
Agins v. Tiburon, supra. For the reasons explained
below, however, we find the constitutional claim properly
presented in this case, and hold that
311 on these facts the California
courts have decided the compensation question inconsistently
with the requirements of the Fifth Amendment.
FN4. The Fifth
Amendment provides "nor shall private property be taken
for public use, without just compensation," and applies
to the States through the Fourteenth Amendment.
See Chicago, B. & Q.R. Co. v. Chicago, 166 U.S.
226, 17 S.Ct. 581, 41 L.Ed. 979 (1897).
Concerns with finality left us
unable to reach the remedial question in the earlier cases
where we have been asked to consider the rule of Agins. See
MacDonald, Sommer & Frates, supra, 477 U.S., at 351, 106
S.Ct. at 2567 (summarizing cases).
In each of these cases, we concluded either that regulations
considered to be in issue by the state court did not effect
a taking, Agins v. Tiburon, 447 U.S., at 263, 100 S.Ct., at
2142, or that the factual disputes yet to be resolved by state
authorities might still lead to the conclusion that no taking
had occurred. MacDonald,
Sommer & Frates, supra, 477 U.S., at 351-353, 106 S.Ct.
at 2567-2568; Williamson
County, supra, 473 U.S., at 188-194, 105 S.Ct., at 3117-3120;
San Diego Gas & Electric Co., supra, 450 U.S.,
at 631-632, 101 S.Ct., at 1293-1294. Consideration of the
remedial question in those circumstances, we concluded, would
The posture of the present case
is quite different.
Appellant's complaint alleged that "Ordinance
No. 11,855 denies [it] all use of Lutherglen," and sought
damages for this deprivation.
App. 12, 49. In affirming the decision
to strike this allegation, the Court of Appeal assumed that
the complaint sought "damages for the uncompensated taking
of all use of Lutherglen by County Ordinance No. 11,855."
App. to Juris. Statement A13-A14 (emphasis added).
It relied on the California Supreme Court's Agins decision
for the conclusion that "the remedy for a taking [is
limited] to nonmonetary relief ...." App. to Juris Statement A16 (emphasis
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. Cf.
MacDonald, Sommer & Frates, supra, at 352-353,
n. 8, 106 S.Ct., at 2568, n. 8 (California court rejected
allegation in the complaint that appellant was deprived of
all beneficial use of its property);
Agins v. Tiburon, supra, 447 U.S., at 259, n. 6, 100
S.Ct., at 2141, n. 6 (same).
Nor did the court rely on the theory that regulatory
measures such as
312 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. [FN5] The
California Court of Appeal has thus held that, regardless
of the correctness of appellant's claim that the challenged
ordinance denies it "all use of Lutherglen," appellant
may not recover damages until the ordinance is finally declared
unconstitutional, and then only for any period after that
declaration for which the county seeks to enforce it.
The constitutional question pretermitted in our earlier
cases is therefore squarely presented here. [FN6]
FN5. It has been
urged that the California Supreme Court's discussion of the
compensation question in Agins v. Tiburon was dictum, because
the court had already decided that the regulations could not
work a taking. See Martino v. Santa Clara Valley Water District,
703 F.2d 1141, 1147 (CA9 1983) ("extended dictum").
The Court of Appeal in this case considered and rejected
the possibility that the compensation discussion in Agins
was dictum. See
App. to Juris. Statement A14-A15, quoting Aptos Seascape Corp.
v. County of Santa Cruz, 138 Cal.App.3d 484, 493, 188 Cal.Rptr.
191, 195 (1982) ("[I]t is apparent that the Supreme Court
itself did not intend its discussion [of inverse condemnation
as a remedy for a taking] to be considered dictum ... and
it has not been treated as such in subsequent Court of Appeal
Whether treating the claim as a takings claim is inconsistent
with the first holding of Agins is not a matter for our concern.
It is enough that the court did so for us to reach
the remedial question.
FN6. Our cases
have also required that one seeking compensation must "seek
compensation through the procedures the State has provided
for doing so" before the claim is ripe for review. Williamson County Regional Planning
Comm'n v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108,
3120, 87 L.Ed.2d 126 (1985).
It is clear that appellant met this requirement. Having
assumed that a taking occurred, the California court's dismissal
of the action establishes that "the inverse condemnation
procedure is unavailable...."
Id., at 197, 105 S.Ct., at 3122.
The compensation claim is accordingly ripe for our
We reject appellee's suggestion
that, regardless of the state court's treatment of the question,
we must independently evaluate the adequacy of the complaint
and resolve the 313
takings claim on the merits before we can reach the remedial
"cryptic" -- to use appellee's description -- the
allegations with respect to the taking were, the California
courts deemed them sufficient to present the issue.
We accordingly have no occasion to decide whether the
ordinance at issue actually denied appellant all use of its
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 of the State's authority to enact safety regulations.
See, e.g., Goldblatt v. Hempstead, 369 U.S. 590, 82
S.Ct. 987, 8 L.Ed.2d 130 (1962);
Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143,
60 L.Ed. 348 (1915);
Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed.
205 (1887). These
questions, of course, remain open for decision on the remand
we direct today.
We now turn to the question whether the Just Compensation
Clause requires the government to pay for "temporary"
regulatory takings. [FN8]
FN7. Because the
issue was not raised in the complaint or considered relevant
by the California courts in their assumption that a taking
had occurred, we also do not consider the effect of the county's
permanent ordinance on the conclusions of the courts below.
That ordinance, adopted in 1981 and reproduced at App.
to Juris. Statement A32-A33, provides that "[a] person
shall not use, erect, construct, move onto, or ... alter,
modify, enlarge or reconstruct any building or structure within
the boundaries of a flood protection district except ... [a]ccessory
buildings and structures that will not substantially impede
the flow of water, including sewer, gas, electrical, and water
systems, approved by the county engineer ...;
[a]utomobile parking facilities incidental to a lawfully
established use; [and]
[f]lood-control structures approved by the chief engineer
of the Los Angeles County Flood Control District."
County Code § 22.44.220.
FN8. In addition
to challenging the finality of the takings decision below,
appellee raises two other challenges to our jurisdiction.
First, going to both the appellate and certiorari jurisdiction
of this Court under 28 U.S.C. § 1257, appellee alleges that
appellant has failed to preserve for review any claim under
federal law. Though
the complaint in this case invoked only the California Constitution,
appellant argued in the Court of Appeal that "recent
Federal decisions ... show the Federal Constitutional error
in ... Agins [v. Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372,
598 P.2d 25 (1979) ]."
App. to Appellant's Opposition to Appellee's Second
Motion to Dismiss A13.
The Court of Appeal, by applying the state rule of
Agins to dismiss appellant's action, rejected on the merits
the claim that the rule violated the United States Constitution.
This disposition makes irrelevant for our purposes any deficiencies
in the complaint as to federal issues.
Where the state court has considered and decided the
constitutional claim, we need not consider how or when the
question was raised.
Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134,
34 S.Ct. 874, 877, 58 L.Ed. 1245 (1914).
Having succeeded in bringing the federal issue into
the case, appellant preserved this question on appeal to the
California Supreme Court, see App. to Appellant's Opposition
to Appellee's Second Motion to Dismiss A14-A22, which declined
to review its Agins decision.
Accordingly, we find that the issue urged here was
both raised and passed upon below. Second, appellee challenges
our appellate jurisdiction on the grounds that the case below
did not draw "in question the validity of a statute of
28 U.S.C. § 1257(2).
There is, of course, no doubt that the ordinance at
issue in this case is "a statute of [a] state" for
purposes of § 1257.
See Erznoznik v. City of Jacksonville, 422 U.S. 205,
207, n. 3, 95 S.Ct. 2268, 2272, n. 3, 45 L.Ed.2d 125 (1975).
As construed by the state courts, the complaint in
this case alleged that the ordinance, by denying all use of
the property, worked a taking without providing for just compensation.
We have frequently treated such challenges to zoning
ordinances as challenges to their validity under the Federal
Constitution, and see no reason to revise that approach here.
See, e.g., MacDonald, Sommer & Frates v. Yolo County,
477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986);
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982);
Agins v. Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65
L.Ed.2d 106 (1980);
Penn Central Transportation Co. v. New York City, 438
U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).
By holding that the failure to provide compensation
was not unconstitutional, moreover, the California courts
upheld the validity of the ordinance against the particular
federal constitutional question at issue here -- just compensation
-- and the case is therefore within the terms of § 1257(2).
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. See
Williamson County, 473 U.S., at 194, 105 S.Ct., at 3120;
Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U.S. 264, 297, n. 40, 101 S.Ct. 2352, 2371,
n. 40, 69 L.Ed.2d 1 (1981);
Hurley v. 315
Kincaid, 285 U.S. 95, 104, 52 S.Ct.
267, 269, 76 L.Ed. 637 (1932); Monongahela Navigation Co. v. United
States, 148 U.S. 312, 336, 13 S.Ct. 622, 630, 37 L.Ed. 463
(1893); United States v. Jones, 109 U.S. 513, 518, 3 S.Ct.
346, 349, 27 L.Ed. 1015 (1883).
This basic understanding of the Amendment makes clear
that it is designed not to limit the governmental interference 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."
Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct.
1563, 1569, 4 L.Ed.2d 1554 (1960).
have recognized that a landowner is entitled to bring an action
in inverse condemnation as a result of " 'the self-executing
character of the constitutional provision with respect to
United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct.
1127, 1130, 63 L.Ed.2d 373 (1980), quoting 6 P. Nichols, Eminent
Domain § 25.41 (3d rev. ed. 1972).
As noted in Justice BRENNAN's dissent in San Diego
Gas & Electric Co., 450 U.S., at 654-655, 101 S.Ct., at
1305, it has been established at least since Jacobs v. United
States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933), that
claims for just compensation are grounded in the Constitution
suits were based on the right to recover just compensation
for property taken by the United States for public use in
the exercise of its power of eminent domain.
That right was guaranteed by the Constitution.
The fact that condemnation proceedings were not instituted
and that the right was asserted in suits by the owners did
not change the essential nature of the claim.
The form of the remedy did not qualify the right.
It rested upon the Fifth Amendment.
Statutory recognition was not necessary.
A promise to pay was not necessary.
Such a promise was implied because of the duty to pay
imposed by the Amendment. The suits were thus founded
upon the Constitution of the United States."
Id., at 16, 54 S.Ct., at 27.
316 Jacobs, moreover,
does not stand alone, for the Court has frequently repeated
the view that, in the event of a taking, the compensation
remedy is required by the Constitution.
See, e.g., Kirby Forest Industries, Inc. v. United
States, 467 U.S. 1, 5, 104 S.Ct. 2187, 2191, 81 L.Ed.2d 1
States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1068,
90 L.Ed. 1206 (1946);
Seaboard Air Line R. Co. v. United States, 261 U.S.
299, 304-306, 43 S.Ct. 354, 355-356, 67 L.Ed. 664 (1923);
Monongahela Navigation, supra, 148 U.S., at 327, 13 S.Ct.,
at 626. [FN9]
The Solicitor General urges that the prohibitory nature of
the Fifth Amendment, see supra, at ----, combined with principles
of sovereign immunity, establishes that the Amendment itself
is only a limitation on the power of the Government to act,
not a remedial provision.
The cases cited in the text, we think, refute the argument
of the United States that "the Constitution does not,
of its own force, furnish a basis for a court to award money
damages against the government."
Brief for United States as Amicus Curiae 14. Though arising in various
factual and jurisdictional settings, these cases make clear
that it is the Constitution that dictates the remedy for interference
with property rights amounting to a taking.
See San Diego Gas & Electric Co. v. San Diego,
450 U.S. 621, 655, n. 21, 101 S.Ct. 1287, 1305-1306, n. 21,
67 L.Ed.2d 551 (1981) (BRENNAN, J., dissenting), quoting United
States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 1384,
91 L.Ed. 1789 (1947).
It has also been established
doctrine at least since Justice Holmes' opinion for the Court
in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct.
158, 67 L.Ed. 322 (1922), 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." Id.,
at 415, 43 S.Ct., at 160.
While the typical taking occurs when the government
acts to condemn property in the exercise of its power of eminent
domain, the entire doctrine of inverse condemnation is predicated
on the proposition that a taking may occur without such formal
Pumpelly v. Green Bay Co., 13 Wall. 166, 177-178, 20 L.Ed.
557 (1872), construing a provision in the Wisconsin Constitution
identical to the Just Compensation Clause, this Court said:
would be a very curious and unsatisfactory result, if ...
it shall be held that
if the government refrains from the absolute conversion
of real property to the uses of 317 the public it
can destroy its value entirely, can inflict irreparable and
permanent injury to any extent, 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
have unhesitatingly applied this principle.
See, e.g., Kaiser Aetna v. United States, 444 U.S.
164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); United States v.
Dickinson, 331 U.S. 745, 750, 67 S.Ct. 1382, 1385, 91 L.Ed.
1789 (1947); United
States v. Causby, supra.
the California Supreme Court may not have actually disavowed
this general rule in Agins, we believe that it has truncated
the rule by disallowing damages that occurred prior to the
ultimate invalidation of the challenged regulation.
The California Supreme Court justified its conclusion
at length in the Agins opinion, concluding that:
combination, the need for preserving a degree of freedom in
the land-use planning function, and the inhibiting financial
force which inheres in the inverse condemnation remedy, persuade
us that on balance mandamus or declaratory relief rather than
inverse condemnation is the appropriate relief under the circumstances."
24 Cal.3d, at 276-277, 157 Cal.Rptr., at 378, 598 P.2d,
of course, are not unmindful of these considerations, but
they must be evaluated in the light of the command of the
Just Compensation Clause of the Fifth Amendment. The Court has recognized
in more than one case that the government may elect to abandon
its intrusion or discontinue regulations. See, e.g., Kirby
Forest Industries, Inc. v. United States, supra;
United States v. Dow, 357 U.S. 17, 26, 78 S.Ct. 1039,
1046, 2 L.Ed.2d 1109 (1958). Similarly, a governmental body
may acquiesce in a judicial declaration that one of its ordinances
has effected an unconstitutional taking of property;
the landowner has no right under the Just Compensation
Clause to insist that a "temporary" taking be deemed
a permanent taking.
But we have 318 not resolved
whether abandonment by the government requires payment of
compensation for the period of time during which regulations
deny a landowner all use of his land.
considering this question, we find substantial guidance in
cases where the government has only temporarily exercised
its right to use private property. In United States v. Dow,
supra, at 26, 78 S.Ct., at 1046, though rejecting a claim
that the Government may not abandon condemnation proceedings,
the Court observed that abandonment "results in an alteration
in the property interest taken -- from [one of] full ownership
to one of temporary use and occupation.... In such cases compensation
would be measured by the principles normally governing the
taking of a right to use property temporarily.
See Kimball Laundry Co. v. United States, 338 U.S.
1, 69 S.Ct. 1434, 93 L.Ed. 1765 ;
United States v. Petty Motor Co., 327 U.S. 372, 66
S.Ct. 596, 90 L.Ed. 729 ;
United States v. General Motors Corp., 323 U.S. 373,
65 S.Ct. 357, 89 L.Ed. 311 ." Each of the cases cited by the
Dow Court involved appropriation of private property by the
United States for use during World War II.
Though the takings were in fact "temporary,"
see United States v. Petty Motor Co., 327 U.S. 372, at 375,
66 S.Ct. 596, at 598, 90 L.Ed. 729 (1946), there was no question
that compensation would be required for the Government's interference
with the use of the property;
the Court was concerned in each case with determining
the proper measure of the monetary relief to which the property
holders were entitled. See Kimball Laundry Co. v.
United States, 338 U.S. 1, 4-21, 69 S.Ct. 1434, 1437-1445,
93 L.Ed. 1765 (1949);
Petty Motor Co., supra, 327 U.S., at 377-381, 66 S.Ct.,
at 599-601; United
States v. General Motors Corp., supra, 323 U.S. 373, at 379-384,
65 S.Ct. 357, at 360-362, 89 L.Ed. 311 (1945).
These cases reflect the fact
that "temporary" takings which, as here, deny a
landowner all use of his property, are not different in kind
from permanent takings, for which the Constitution clearly
Diego Gas & Electric Co., 450 U.S., at 657, 101 S.Ct.,
at 1307 (BRENNAN, J., dissenting) ("Nothing in the Just
Compensation Clause suggests that 'takings' must be permanent
It is axiomatic that the Fifth Amendment's just compensation
provision is "designed to bar Government from forcing
some 319 people alone
to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole."
Armstrong v. United States, 364 U.S., at 49, 80 S.Ct.,
at 1569. See also Penn Central Transportation Co. v. New York
City, 438 U.S. 104, 123-125, 98 S.Ct. 2646, 2658-2659, 57
L.Ed.2d 631 (1978);
Monongahela Navigation Co. v. United States, 148 U.S.,
at 325, 13 S.Ct., at 625.
In the present case the interim ordinance was adopted
by the County of Los Angeles in January 1979, and became effective
immediately. Appellant filed suit within
a month after the effective date of the ordinance and yet
when the California Supreme Court denied a hearing in the
case on October 17, 1985, the merits of appellant's claim
had yet to be determined.
The United States has been required to pay compensation
for leasehold interests of shorter duration than this.
The value of a leasehold interest in property for a
period of years may be substantial, and the burden on the
property owner in extinguishing such an interest for a period
of years may be great indeed.
See, e.g., United States v. General Motors, supra.
Where this burden results from governmental action
that amounted to a taking, the Just Compensation Clause of
the Fifth Amendment requires that the government pay the landowner
for the value of the use of the land during this period.
Cf. United States v. Causby, 328 U.S., at 261, 66 S.Ct.,
at 1065-1066 ("It is the owner's loss, not the taker's
gain, which is the measure of the value of the property taken").
Invalidation of the ordinance or its successor ordinance
after this period of time, though converting the taking into
a "temporary" one, is not a sufficient remedy to
meet the demands of the Just Compensation Clause.
argues that requiring compensation for denial of all use of
land prior to invalidation is inconsistent with this Court's
decisions in Danforth v. United States, 308 U.S. 271, 60 S.Ct.
231, 84 L.Ed. 240 (1939), and Agins v. Tiburon, 447 U.S. 255,
100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). In Danforth, the landowner
contended that the "taking" of his property had
occurred prior to the institution of condemnation proceedings,
by reason of the enactment of the Flood Control Act itself.
He claimed that the passage of that Act had diminished
320 the value of his property because
the plan embodied in the Act required condemnation of a flowage
easement across his property.
The Court held that in the context of condemnation
proceedings a taking does not occur until compensation is
determined and paid, and went on to say that "[a] reduction
or increase in the value of property may occur by reason of
legislation for or the beginning or completion of a project,"
but "[s]uch changes in value are incidents of ownership.
They cannot be considered as a 'taking' in the constitutional
supra, 308 U.S., at 285, 60 S.Ct., at 236.
Agins likewise rejected a claim that the city's preliminary
activities constituted a taking, saying that "[m]ere
fluctuations in value during the process of governmental decisionmaking,
absent extraordinary delay, are 'incidents of ownership.'
447 U.S., at 263, n. 9, 100 S.Ct., at 2143, n. 9.
But these cases merely
stand for the unexceptional proposition that the valuation
of property which has been taken must be calculated as of
the time of the taking, and that depreciation in value of
the property by reason of preliminary activity is not chargeable
to the government.
Thus, in Agins, we concluded that the preliminary activity
did not work a taking. It would require a considerable extension
of these decisions to say that no compensable regulatory taking
may occur until a challenged ordinance has ultimately been
held invalid. [FN10]
Williamson County Regional Planning Comm'n, is not to the
we noted that "no constitutional violation occurs until
just compensation has been denied."
473 U.S., at 194, n. 13, 105 S.Ct., at 3120, n. 13. This statement, however,
was addressed to the issue whether the constitutional claim
was ripe for review and did not establish that compensation
is unavailable for government activity occurring before compensation
is actually denied.
Though, as a matter of law, an illegitimate taking
might not occur until the government refuses to pay, the interference
that effects a taking might begin much earlier, and compensation
is measured from that time.
See Kirby Forest Industries, Inc. v. United States,
467 U.S. 1, 5, 104 S.Ct. 2187, 2191, 81 L.Ed.2d 1 (1984) (Where
Government physically occupies land without condemnation proceedings,
"the owner has a right to bring an 'inverse condemnation'
suit to recover the value of the land on the date of the intrusion
by the Government").
321 Nothing we say
today is intended to abrogate the principle that the decision
to exercise the power of eminent domain is a legislative function
" 'for Congress and Congress alone to determine.' "
Hawaii Housing Authority v. Midkiff, 467 U.S. 229,
240, 104 S.Ct. 2321, 2329, 81 L.Ed.2d 186 (1984), quoting
Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 103, 99 L.Ed.
27 (1954). Once
a court determines that a taking has occurred, the government
retains the whole range of options already available -- amendment
of the regulation, withdrawal of the invalidated regulation,
or exercise of eminent domain.
Thus we do not, as the Solicitor General suggests,
"permit a court, at the behest of a private person, to
require the ... Government to exercise the power of eminent
for United States as Amicus Curiae 22.
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.
also point out that the allegation of the complaint which
we treat as true for purposes of our decision was that the
ordinance in question denied appellant all use of its property.
We limit our holding to the facts presented, and of
course do not deal with the quite different questions that
would arise in the case of normal delays in obtaining building
permits, changes in zoning ordinances, variances, and the
like which are not before us.
We realize that even our present holding will undoubtedly
lessen to some extent the freedom and flexibility of land-use
planners and governing bodies of municipal corporations when
enacting land-use regulations.
But such consequences necessarily flow from any decision
upholding a claim of constitutional right;
many of the provisions of the Constitution are designed
to limit the flexibility and freedom of governmental authorities,
and the Just Compensation Clause of the Fifth Amendment is
one of them. As
Justice Holmes aptly noted more than 50 years ago, "a
strong public 322
desire to improve the public condition
is not enough to warrant achieving the desire by a shorter
cut than the constitutional way of paying for the change."
Pennsylvania Coal Co. v. Mahon, 260 U.S., at 416, 43
S.Ct., at 160.
we must assume that the Los Angeles County ordinance has denied
appellant all use of its property for a considerable period
of years, and we hold that invalidation of the ordinance without
payment of fair value for the use of the property during this
period of time would be a constitutionally insufficient remedy.
The judgment of the California Court of Appeal is therefore
reversed, and the case is remanded for further proceedings
not inconsistent with this opinion.
is so ordered.
STEVENS, with whom Justice BLACKMUN and Justice O'CONNOR join
as to Parts I and III, dissenting.
thing is certain.
The Court's decision today will generate a great deal
Most of it, I believe, will be unproductive.
But the mere duty to defend the actions that today's
decision will spawn will undoubtedly have a significant adverse
impact on the land-use regulatory process.
The Court has reached out to address an issue not actually
presented in this case, and has then answered that self-imposed
question in a superficial and, I believe, dangerous way.
flaws in the Court's analysis merit special comment. First, the Court unnecessarily
and imprudently assumes that appellant's complaint alleges
an unconstitutional taking of Lutherglen.
Second, the Court distorts our precedents in the area
of regulatory takings when it concludes that all ordinances
which would constitute takings if allowed to remain in effect
permanently, necessarily also constitute takings if they are
in effect for only a limited period of time.
Third, the Court incorrectly assumes that the California
Supreme Court has already decided that it will never allow
a state court to grant monetary relief for a temporary regulatory
taking, and 323
then uses that conclusion to reverse
a judgment which is correct under the Court's own theories.
Finally, the Court errs in concluding that it is the
Takings Clause, rather than the Due Process Clause, which
is the primary constraint on the use of unfair and dilatory
procedures in the land-use area.
the relevant portion of its complaint for inverse condemnation,
"On January 11, 1979, the County
adopted Ordinance No. 11,855, which provides:
'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 52,
attached hereto and incorporated herein by reference as though
fully set forth.'
is within the flood protection area created by Ordinance No.
No. 11,855 denies First Church all use of Lutherglen."
the Church sought only compensation, and did not request invalidation
of the ordinance, the Superior Court granted a motion to strike
those three paragraphs, and consequently never decided whether
they alleged a "taking." [FN1]
324 The Superior Court granted
the motion to strike on the basis of the rule announced in
Agins v. Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d
25 (1979). Under
the rule of that case, a property owner who claims that a
land-use restriction has taken property for public use without
compensation must file an action seeking invalidation of the
regulation, and may not simply demand compensation.
The Court of Appeal affirmed on the authority of Agins
alone, [FN2] also without holding that the complaint had alleged
a violation of either the California Constitution or the Federal
Constitution. At most, it assumed, arguendo,
that a constitutional violation had been alleged.
The Superior Court's entire explanation for its decision to
grant the motion to strike reads as follows:
a careful rereading of the Agins case persuades the Court
that when an ordinance, even a non-zoning ordinance, deprives
a person of the total use of his lands, his challenge to the
ordinance is by way of declaratory relief or possibly mandamus."
The Court of Appeal described the Agins case in this way:
v. City of Tiburon (1979) 24 Cal.3d 266, 157 Cal.Rptr. 372,
598 P.2d 25, the plaintiffs filed an action for damages in
inverse condemnation and for declaratory relief against the
City of Tiburon, which had passed a zoning ordinance in part
for 'open space' that would have
permitted a maximum of five or a minimum of one dwelling
units on the plaintiffs' five acres. A demurrer to both causes
of action was sustained, and a judgment of dismissal was entered.
The California Supreme Court affirmed the dismissal,
finding that the ordinance did not on its face 'deprive the
landowner of substantially all reasonable use of his property,'
(Agins, supra, 24 Cal.3d, at p. 277, 157 Cal.Rptr. 372, 598
P.2d 25), and did not 'unconstitutionally interfere with plaintiff's
entire use of the land or impermissibly decrease its value'
Supreme Court further said that 'mandamus or declaratory relief
rather than inverse condemnation [was] the appropriate relief
under the circumstances.'
App. to Juris. Statement A14.
Court clearly has the authority to decide this case by ruling
that the complaint did not allege a taking under the Federal
Constitution, [FN3] and therefore to avoid the novel constitutional
325 issue that it addresses. Even
though I believe the Court's lack of self-restraint is imprudent,
it is imperative 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
familiar rule of appellate court procedure in federal courts
[is] that, without a cross-petition or appeal, a respondent
or appellee may support the judgment in his favor upon grounds
different from those upon which the court below rested its
v. Compagnie Generale, 309 U.S. 430, 434, 60 S.Ct. 670, 672,
84 L.Ed. 849 (1940), citing United States v. American Railway
Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 563, 68 L.Ed.
1087 (1924); see
also Dandridge v. Williams, 397 U.S. 471, 475-476, n. 6, 90
S.Ct. 1153, 1156-57, n. 6, 25 L.Ed.2d 491 (1970).
It is also well settled that this Court is not bound
by a state court's determination (much less an assumption)
that a complaint states a federal claim. See Staub v. City of Baxley,
355 U.S. 313, 318, 78 S.Ct. 277, 280, 2 L.Ed.2d 302 (1958);
First National Bank of Guthrie Center v. Anderson,
269 U.S. 341, 346, 46 S.Ct. 135, 137, 70 L.Ed. 295 (1926).
Especially in the takings context, where the details
of the deprivation are so significant, the economic drain
of litigation on public resources is "too great to permit
cases to go forward without a more substantial indication
that a constitutional violation may have
Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d
1023, 1026 (CA3), cert. denied, 482 U.S. 906, 107 S.Ct. 2482,
96 L.Ed.2d 375 (1987).
ago it was recognized that 'all property in this country is
held under the implied obligation that the owner's use of
it shall not be injurious to the community.' "
Keystone Bituminous Coal Assn. v. DeBenedictis, 480
U.S. 470, 491-492, 107 S.Ct. 1232, 1245, 94 L.Ed.2d 472 (1987),
quoting Mugler v. Kansas, 123 U.S. 623, 665, 8 S.Ct. 273,
299, 31 L.Ed. 205 (1887).
Thus, in order to protect the health and safety of
the community, [FN4] government may condemn unsafe structures,
may close unlawful business operations,
may destroy infected
trees, and surely may restrict access to hazardous areas
-- for example, land on which radioactive materials have been
discharged, land in the path of a lava flow from an erupting
volcano, or land in the path of a potentially life-threatening
flood. [FN5] When
a governmental entity imposes these types of health and safety
regulations, it may not be "burdened with the condition
that [it] must compensate such individual owners for pecuniary
losses they may sustain, by reason of their not being permitted,
by a noxious use of their property, to inflict injury upon
Mugler, supra, 123 U.S., at 668-669, 8 S.Ct., at 300-301;
see generally Keystone Bituminous, supra, 480 U.S.,
at 485‑493, 107 S.Ct., at ---- - ----.
FN4. See Keystone
Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 485-493,
107 S.Ct. 1232, ----, 94 L.Ed.2d 472 (1987) (coal mine subsidence);
Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987,
8 L.Ed.2d 130 (1962) (rock quarry excavation);
Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed.
568 (1928) (infectious tree disease); Hadacheck v. Sebastian,
239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915) (emissions
from factory); Mugler
v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887)
see also Penn Central Transportation Co. v. New York
City, 438 U.S. 104, 145, 98 S.Ct. 2646, 2670, 57 L.Ed.2d 631
(1978) (REHNQUIST, J., dissenting) ("The question is
whether the forbidden use is dangerous to the safety, health,
or welfare of others").
Many state courts have reached the identical conclusion.
See Keystone Bituminous, supra, 480 U.S., at 492, n.
22, 107 S.Ct., at 1246, n. 22 (citing cases).
In Keystone Bituminous
we explained that one of the justifications for the rule that
health and safety regulation cannot constitute a taking is
that individuals hold their property subject to the limitation
that they not use it
in dangerous or noxious ways.
480 U.S., at 491, n. 20, 107 S.Ct., at 1245, n. 20.
The Court's recent decision in United States v. Cherokee
Nation of Oklahoma, 480 U.S. 700, 107 S.Ct. 1487, 94 L.Ed.2d
704 (1987), adds support to this thesis.
There, the Court reaffirmed the traditional rule that
when the United States exercises its power to assert a navigational
servitude it does not "take" property because the
damage sustained results "from the lawful exercise of
a power to which the interests of riparian owners have always
been subject." Id., at 704, 107 S.Ct., at 1490.
FN5. See generally
Plater, The Takings Issue in a Natural Setting:
Floodlines and the Police Power, 52 Tex.L.Rev. 201
(1974); F. Bosselman,
D. Callies, & J. Banta, The Taking Issue 147-155 (1973).
this case, the legitimacy of the county's interest in the
enactment of Ordinance No. 11,855 is apparent from the face
of the ordinance and has never been challenged. [FN6]
It was enacted
as an "interim" measure "temporarily
prohibiting" certain construction in a specified area
because the County Board believed the prohibition was "urgently
required for the immediate preservation of the public health
Even if that were not true, the strong presumption
of constitutionality that applies to legislative enactments
certainly requires one challenging the constitutionality of
an ordinance of this kind to allege some sort of improper
purpose or insufficient justification in order to state a
colorable federal claim for relief.
A presumption of validity is particularly appropriate
in this case because the complaint did not even allege that
the ordinance is invalid, or pray for a declaration of invalidity
or an injunction against its enforcement. [FN7] Nor did it
allege any facts indicating how the ordinance interfered with
any future use of the property contemplated or planned by
light of the tragic flood and the loss of life that precipitated 328 the safety regulations
here, it is hard to understand how appellant ever expected
to rebuild on Lutherglen.
FN6. It is proper
to take judicial notice of the ordinance.
It provides, in relevant part:
"ORDINANCE NO. 11,855.
ordinance temporarily prohibiting the construction, 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
* * *
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 incompatible 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.
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."
App. to Juris. Statement 31-32.
FN7. Because the
complaint did not pray for an injunction against enforcement
of the ordinance, or a declaration that it is invalid, but
merely sought monetary relief, it is doubtful that we have
appellate jurisdiction under 28 U.S.C. § 1257(2).
Section 1257(2) provides:
"(2) By appeal,
where is drawn in question the validity of a statute of any
state on the ground of its being repugnant to the Constitution,
treaties or laws of the United States, and the decision is
in favor of its validity."
Even if we do not
have appellate jurisdiction, however, presumably the Court
would exercise its certiorari jurisdiction pursuant to 28
U.S.C. § 1257(3).
Thus, although 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 concerned,
the claim that the ordinance was a taking of Lutherglen should
be summarily rejected on its merits.
is no dispute about the proposition that a regulation which
goes "too far" must be deemed a taking.
See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415,
43 S.Ct. 158, 160, 67 L.Ed. 322 (1922).
When that happens, the government has a choice:
it may abandon the regulation or it may continue to
regulate and compensate those whose property it takes.
In the usual case, either of these options is wholly
Paying compensation for the property is, of course,
a constitutional prerogative of the sovereign. Alternatively,
if the sovereign chooses not to retain the regulation, repeal
will, in virtually all cases, mitigate the overall effect
of the regulation so substantially that the slight diminution
in value that the regulation caused while in effect cannot
be classified as a taking of property.
We may assume, however, that this may not always be
the case. There may be some situations
in which even the temporary existence of a regulation has
such severe consequences that invalidation or repeal will
not mitigate the damage enough to remove the "taking"
hypothetical situation is what the Court calls a "temporary
taking." But, contrary to the Court's
implications, the fact that a regulation would constitute
a taking if allowed to remain in effect permanently is by
no means dispositive of the question whether the effect that
the regulation has already had on the
property is so severe that a taking
occurred during the period before the regulation was invalidated.
temporary interference with an owner's use of his property
may constitute a taking for which the Constitution requires
that compensation be paid. At least with respect to
physical takings, the Court has so held.
See ante, at 2387-2388 (citing cases).
Thus, if the government appropriates a leasehold interest
and uses it for a public purpose, the return of the premises
at the expiration of the lease would obviously not erase the
fact of the government's temporary occupation. Or if the government destroys
a chicken farm by building a road through it or flying planes
over it, removing the road or terminating the flights would
not palliate the physical damage that had already occurred.
These examples are consistent with the rule that even
minimal physical occupations constitute takings which give
rise to a duty to compensate.
See Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).
our cases also make it clear that regulatory takings and physical
takings are very different in this, as well as other, respects.
While virtually all physical invasions are deemed takings,
see, e.g., Loretto, supra;
United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062,
90 L.Ed. 1206 (1946), a regulatory program that adversely
affects property values does not constitute a taking unless
it destroys a major portion of the property's value.
Bituminous, 480 U.S., at 493-502, 107 S.Ct., at ----;
Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U.S. 264, 296, 101 S.Ct. 2352, 2370, 69 L.Ed.2d
1 (1981); Agins
v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d
106 (1980). This
diminution of value
330 inquiry is unique to regulatory
physical invasions, which are relatively rare and easily identifiable
without making any economic analysis, regulatory programs
constantly affect property values in countless ways, and only
the most extreme regulations can constitute takings.
Some dividing line must be established between everyday
regulatory inconveniences and those so severe that they constitute
diminution of value inquiry has long been used in identifying
that line. As
Justice Holmes put it:
"Government hardly could go on if to some extent
values incident to property could not be diminished without
paying for every such change in the general law." Pennsylvania Coal, supra, 260 U.S.,
at 413, 43 S.Ct., at 159.
It is this basic distinction between regulatory and
physical takings that the Court ignores today.
are three dimensional;
they have depth, width, and length.
As for depth, regulations define the extent to which
the owner may not use the property in question.
With respect to width, regulations define the amount
of property encompassed by the restrictions.
Finally, and for purposes of this case, essentially,
regulations set forth the duration of the restrictions.
It is obvious that no one of these elements can be
analyzed alone to evaluate the impact of a regulation, and
hence to determine whether a taking has occurred. For example,
in Keystone Bituminous we declined to focus in on any discrete
segment of the coal in the petitioners' mines, but rather
looked to the effect that the restriction had on their entire
See 480 U.S., at 493-502, 107 S.Ct., at ----;
see also Penn Central Transportation Co. v. New York
City, supra, 438 U.S. 104, 137, 98 S.Ct. 2646, 2665, 57 L.Ed.2d
631 (1978) (looking at owner's other buildings).
Similarly, in Penn Central, the Court concluded that
it was error to focus on the nature of the uses which were
prohibited without also examining the many profitable uses
to which the property could still be put.
Id., at 130-131, 98 S.Ct., at 2662;
see also Agins, supra, 447 U.S., at 262-263, 100 S.Ct.,
at 2142; Andrus
v. Allard, 444 U.S. 51, 64-67, 100 S.Ct. 318, 326-327, 62
L.Ed.2d 210 (1979). Both of these factors are essential to
a meaningful analysis of the economic effect that regulations
have on the value of property and on an owner's reasonable
investment-based expectations with respect to the property.
as it would be senseless to ignore these first two factors
in assessing the economic effect of a regulation, one cannot
conduct the inquiry without considering the duration of the
generally Williams, Smith, Siemon,
Mandelker, & Babcock, The White
River Junction Manifesto, 9 Vt.L.Rev. 193, 215-218 (1984).
For example, while I agreed with the Chief Justice's
view that the permanent restriction on building involved in
Penn Central constituted a taking, I assume that no one would
have suggested that a temporary freeze on building would have
also constituted a taking.
Similarly, I am confident that even the dissenters
in Keystone Bituminous would not have concluded that the restriction
on bituminous coal mining would have constituted a taking
had it simply required the mining companies to delay their
operations until an appropriate safety inspection could be
the other hand, I am willing to assume that some cases may
arise in which a property owner can show that prospective
invalidation of the regulation cannot cure the taking -- that
the temporary operation of a regulation has caused such a
significant diminution in the property's value that compensation
must be afforded for the taking that has already occurred.
For this ever to happen, the restriction on the use
of the property would not only have to be a substantial one,
but it would also have to remain in effect for a significant
percentage of the property's useful life. In such a case an application
of our test for regulatory takings would obviously require
an inquiry into the duration of the restriction, as well as
its scope and severity.
County Regional Planning Comm'n v. Hamilton Bank, 473 U.S.
172, 190-191, 105 S.Ct. 3108, 3118-3119, 87 L.Ed.2d 126 (1985)
(refusing to evaluate taking claim when the long-term economic
effects were uncertain because it was not clear that restrictions
would remain in effect permanently).
The cases that the Court relies
upon for the proposition that there is no distinction between
temporary and permanent takings, see ante, at 2387, are inapposite,
for they all deal with physical takings -- where the diminution
of value test is inapplicable. [FN8]
None of those cases is controversial;
332 certainly may not occupy an
individual's home for a month and then escape compensation
by leaving and declaring the occupation "temporary." But what does that have to
do with the proper inquiry for regulatory takings?
Why should there be a constitutional distinction between
a permanent restriction that only reduces the economic value
of the property by a fraction -- perhaps one-third -- and
a restriction that merely postpones the development of a property
for a fraction of its useful life -- presumably far less than
a third? In
the former instance, no taking has occurred;
in the latter case, the Court now proclaims that compensation
for a taking must be provided.
The Court makes no effort to explain these irreconcilable
without any attempt to fit its proclamation into our regulatory
takings cases, the Court boldly announces that once a property
owner makes out a claim that a regulation would constitute
a taking if allowed to stand, then he or she is entitled to
damages for the period of time between its enactment and its
FN8. In United
States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109
(1958), the United States had "entered into physical
possession and began laying the pipe line through the tract."
Id., at 19, 78 S.Ct., at 1043.
In Kimball Laundry Co. v. United States, 338 U.S. 1,
69 S.Ct. 1434, 93 L.Ed. 1765 (1949), the United States Army
had taken possession of the laundry plant including all "the
facilities of the company, except delivery equipment."
Id., at 3, 69 S.Ct., at 1436. In United States v. Petty
Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946),
the United States acquired by condemnation a building occupied
by tenants and ordered the tenants to vacate.
In United States v. General Motors Corp., 323 U.S.
373, 65 S.Ct. 357, 89 L.Ed. 311 (1945), the Government occupied
a portion of a leased building.
today, we have repeatedly rejected the notion that all temporary
diminutions in the value of property automatically activate
the compensation requirement of the Takings Clause.
In Agins, we held:
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....
Even if the appellants' ability to sell their property
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
They cannot be considered as a "taking" in
the constitutional sense.' "
447 U.S., at 263, n. 9, 100 S.Ct., at 2143, n. 9, quoting
Danforth v. United States, 308 U.S. 271, 285, 60 S.Ct. 231,
236, 84 L.Ed. 240 (1939). [FN9]
The Court makes only a feeble attempt to explain why the holdings
in Agins and Danforth are not controlling here.
It is tautological to claim that the cases stand for
the "unexceptional proposition that the valuation of
property which has been taken must be calculated as of the
time of the taking."
Ante, at 2388 (emphasis added).
The question in Danforth was when the taking occurred.
question addressed in the relevant portion of Agins
was whether the temporary fluctuations in value themselves
constituted a taking.
In rejecting the claims in those cases, the Court necessarily
held that the temporary effects did not constitute takings
of their own right. The cases are therefore directly
on point here.
If even the temporary effects of a decision to condemn,
the ultimate taking, do not ordinarily constitute a taking
in and of themselves, then, a fortiori, the temporary effects
of a regulation should not.
more recent takings cases also cut against the approach the
Court now takes.
In Williamson, supra, and MacDonald, Sommer & Frates
v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285
(1986), we held that we could not review a taking claim as
long as the property owner had an opportunity to obtain a
variance or some other form of relief from the zoning
authorities that would permit the development of the property
to go forward. See Williamson, supra, 473
U.S., at 190-191, 105 S.Ct., at 3119;
Yolo County, supra, 477 U.S., at 348-353, 106 S.Ct.,
at 2565-2568. Implicit in those holdings was the assumption
that the temporary deprivation of all use of the property
would not constitute a taking if it would be adequately remedied
by a belated grant of approval of the developer's plans.
See Sallet, Regulatory "Takings" and Just
Compensation: The Supreme Court's Search for
a Solution Continues, 18 Urb.Law. 635, 653 (1986).
The Court's reasoning also suffers from
severe internal inconsistency.
Although it purports to put to one side "normal
delays in obtaining building permits, changes in zoning ordinances,
variances and the like," ante, at 2389, the Court does
not explain why there is a constitutional distinction between
a total denial of all use of property during such "normal
delays" and an equally total denial for the same length
of time in order to determine whether a regulation has "gone
too far" to be sustained unless the government is prepared
to condemn the property.
Precisely the same interference with a real estate
developer's plans may be occasioned by protracted proceedings
which terminate with a zoning board's decision that the public
interest would be served by modification of its regulation
and equally protracted litigation which ends with a judicial
determination that the existing zoning restraint has "gone
too far," and that the board must therefore grant the
developer a variance.
The Court's analysis takes no cognizance of these realities.
Instead, it appears to erect an artificial distinction
between "normal delays" and the delays involved
in obtaining a court declaration that the regulation constitutes
a taking. [FN10]
Whether delays associated with a judicial proceeding that
terminates with a holding that a regulation was not authorized
by state law would be a "normal delay" or a temporary
taking depends, I suppose, on the unexplained rationale for
the Court's artificial distinction.
In my opinion,
the question whether a "temporary taking" has occurred
should not be answered by simply looking at the reason a temporary
interference with an owner's use of his property is terminated.
challenging the validity of a land-use restriction gives rise
to a delay that is just as "normal" as an administrative
procedure seeking a variance 335 or an approval
of a controversial plan. [FN12]
Just because a plaintiff can prove that a land-use
restriction would constitute a taking if allowed to remain
in effect permanently does not mean that he or she can also
prove that its temporary application rose to the level of
a constitutional taking.
"[T]he Constitution measures a taking of property not
by what a State says, or what it intends, but by what it does." Hughes v. Washington, 389 U.S.
290, 298, 88 S.Ct. 438, 443, 19 L.Ed.2d 530 (1967) (Stewart,
The fact that the effects of the regulation are stopped
by judicial, as opposed to administrative decree,
should not affect the question whether compensation
FN12. States may
surely provide a forum in their courts for review of general
challenges to zoning ordinances and other regulations.
Such a procedure then becomes part of the "normal"
when States have set up such procedures in their courts, we
have required resort to those processes before considering
See Williamson County Regional Planning Comm'n v. Hamilton
Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).
Court recognizes that the California courts have the right
to adopt invalidation of an excessive regulation as the appropriate
remedy for the permanent effects of overburdensome regulations,
rather than allowing the regulation to stand and ordering
the government to afford compensation for the permanent taking.
See ante, at 2388;
see also Yolo County, supra, 477 U.S., at 362-363,
and n. 4, 106 S.Ct., at 2573, and n. 4 (WHITE, J., dissenting);
San Diego Gas & Electric Co. v. San Diego, 450
U.S. 621, 657, 101 S.Ct. 1287, 1306, 67 L.Ed.2d 551 (1981)
(BRENNAN, J., dissenting).
The difference between these two remedies is less substantial
than one might assume.
When a court invalidates a regulation, the Legislative
or Executive Branch must then decide whether to condemn the
property in order to proceed with the regulatory scheme.
On the other hand, if the court requires compensation
for a permanent taking, the Executive or Legislative Branch
may still repeal the regulation and thus prevent the permanent
taking. The difference, therefore, is only in what will happen
in the case of Legislative or Executive inertia.
Many scholars have debated the respective merits of
the alternative approaches in light of separation-of-powers
concerns, [FN13] but our only concern is with a state court's
336 which procedure it considers
California is fully competent to decide how it wishes
to deal with the separation-of-powers implications of the
remedy it routinely uses. [FN14]
FN13. See, e.g.,
Mandelker, Land Use Takings:
The Compensation Issue, 8 Hastings Const. L.Q. 491
Smith, Siemon, Mandelker, & Babcock, The White River Junction
Manifesto, 9 Vt.L.Rev. 193, 233-234 (1984);
Berger & Kanner, Thoughts on the White River Junction
Reply to the "Gang of Five's" Views on Just Compensation
for Regulatory Taking of Property, 19 Loyola (LA) L.Rev. 685,
704-712 (1986); Comment, Just Compensation or Just Invalidation:
The Availability of a
Damages Remedy in Challenging Land Use Regulations,
29 UCLA L.Rev. 711, 725-726 (1982).
FN14. For this
same reason, the parties' and amici's conflicting claims about
whether this Court's cases, such as Hurley v. Kincaid, 285
U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637 (1932), provide that compensation
is a less intrusive remedy than invalidation, are not relevant
it is recognized that California may deal with the permanent
taking problem by invalidating objectionable regulations,
it becomes clear that the California Court of Appeal's decision
in this case should be affirmed. Even if this Court is correct
in stating that one who makes out a claim for a permanent
taking is automatically entitled to some compensation for
the temporary aspect of the taking as well, the States still
have the right to deal with the permanent aspect of a taking
by invalidating the regulation.
That is all that the California courts have done in
this case. They
have refused to proceed upon a complaint which sought only
damages, and which did not contain a request for a declaratory
invalidation of the regulation, as clearly required by California
Court seriously errs, therefore, when it claims that the California
court held that "a landowner who claims that his property
has been 'taken' by a land-use regulation may not recover
damages for the time before it is finally determined that
the regulation constitutes a 'taking' of his property."
Ante, at 2381.
Perhaps the Court discerns such a practice from some
of the California Supreme Court's earlier decisions, but that
is surely no reason for reversing a procedural judgment in
a case in which the dismissal of the complaint was entirely
consistent with an approach that the
337 Court endorses.
Indeed, I am not all that sure how the California courts
would deal with a landowner who seeks both invalidation of
the regulation and damages for the temporary taking that occurred
prior to the requested invalidation.
a matter of regulating the procedure in its own state courts,
the California Supreme Court has decided that mandamus or
declaratory relief rather than inverse condemnation provides
"the appropriate relief" for one who challenges
a regulation as a taking.
Agins v. Tiburon, 24 Cal.3d, at 277, 157 Cal.Rptr.,
at 378, 598 P.2d, at 31.
This statement in Agins can be interpreted in two quite
First, it may merely require the property owner to
exhaust his equitable remedies before asserting any claim
for damages. Under
that reading, a postponement of any consideration of monetary
relief, or even a requirement that a "temporary regulatory
taking" claim be asserted in a separate proceeding after
the temporary interference has ended, would not violate the
Second, the Agins opinion may be
read to indicate that California courts will never award
damages for a temporary regulatory taking. [FN15]
Even if we assume that such a rigid rule would bar
recovery in the California courts in a few meritorious cases,
we should not allow a litigant to challenge the rule unless
his complaint contains allegations explaining why declaratory
relief would not provide him with an adequate remedy, and
unless his complaint at least complies with the California
rule of procedure to the extent that the rule is clearly legitimate.
Since the First Amendment is not
implicated, the fact that California's rule may be somewhat
"overbroad" is no reason for permitting a party
to complain about the impact of the rule on other property
who actually file complaints that call
California's rule into question.
FN15. The California
Supreme Court's discussion of the policy implications in Agins
is entirely consistent with the view that the court was choosing
between remedies (invalidation or compensation) with respect
to the permanent effect of a regulation, and was not dealing
with the temporary taking question at all.
Subsequent California Supreme Court cases applying
the Agins rule do not shed light on this question.
any event, the Court has no business speculating on how the
California courts will deal with this problem when it is presented
to them. Despite
the many cases in which the California courts have applied
the Agins rule, the Court can point to no case in which application
of the rule has deprived a property owner of his rightful
criminal litigation we have steadfastly adhered to the practice
of requiring the defendant to exhaust his or her state remedies
before collaterally attacking a conviction based on a claimed
violation of the Federal Constitution. That requirement is supported
by our respect for the sovereignty of the several States and
by our interest in having federal judges decide federal constitutional
issues only on the basis of fully developed records.
See generally Rose v. Lundy, 455 U.S. 509, 102 S.Ct.
1198, 71 L.Ed.2d 379 (1982).
The States' interest in controlling land-use development
and in exploring all the ramifications of a challenge to a
zoning restriction should command the same deference from
the federal judiciary.
See Williamson, 473 U.S., at 194-197, 105 S.Ct., at
our interest in avoiding the decision of federal constitutional
questions on anything less than a fully informed basis counsels
against trying to decide whether equitable relief has forestalled
a temporary taking until after we know what the relief is.
In short, even if the California courts adhere to a
rule of never granting monetary relief for a temporary regulatory
taking, I believe we should require the property owner to
exhaust his state remedies before confronting the question
whether the net result of the state proceedings has amounted
to a temporary taking of property without just compensation.
In this case, the Church should be required to pursue
an action demanding invalidation of the ordinance prior to
seeking this Court's review of California's procedures. [FN16]
FN16. In the habeas
corpus context, we have held that a prisoner has not exhausted
his state remedies when the state court refuses to consider
his claim because he has not sought the appropriate state
Woods v. Nierstheimer, 328 U.S. 211, 216, 66 S.Ct. 996, 999,
90 L.Ed. 1177 (1946);
Ex parte Hawk, 321 U.S. 114, 116-117, 64 S.Ct. 448,
449-450, 88 L.Ed. 572 (1944).
This rule should be applied with equal force here.
The appellant should not be permitted
to circumvent that requirement by omitting any prayer for
equitable relief from its complaint.
I believe the California Supreme Court is justified
in insisting that the owner recover as much of its property
as possible before foisting any of it on an unwilling governmental
Court apparently agrees with this proposition.
Thus, even on the Court's own radical view of temporary
regulatory takings announced today, the California courts
had the right to strike this complaint.
is, of course, a possibility that land-use planning, like
other forms of regulation, will unfairly deprive a citizen
of the right to develop his property at the time and in the
manner that will best serve his economic interests.
The "regulatory taking" doctrine announced
in Pennsylvania Coal places a limit on the permissible scope
of land-use restrictions.
In my opinion, however, it is the Due Process Clause
rather than that doctrine that protects the property owner
from improperly motivated, unfairly conducted, or unnecessarily
protracted governmental decisionmaking.
Violation of the procedural safeguards mandated by
the Due Process Clause will give rise to actions for damages
under 42 U.S.C. § 1983, but I am not persuaded that delays
in the development of property that are occasioned by fairly
conducted administrative or judicial proceedings are compensable,
except perhaps in the most unusual circumstances.
On the contrary, I am convinced that the public interest
in having important governmental decisions made in an orderly,
fully informed way amply justifies the temporary burden on
the citizen that is the inevitable by-product of democratic
I recently wrote:
Due Process Clause of the Fourteenth Amendment requires a
State to employ fair procedures in the administration and
enforcement of all kinds of regulations.
It does not, however, impose the utopian requirement
that enforcement action may not impose any cost upon the citizen
unless the government's position is completely vindicated.
We must presume that regulatory bodies such as zoning
boards, school boards, and health boards, generally make a
good-faith effort to advance the public interest when they
are performing their official duties, but we must also recognize
that they will often become involved in controversies that
they will ultimately lose.
Even though these controversies are costly and temporarily
harmful to the private citizen, as long as fair procedures
are followed, I do not believe there is any basis in the Constitution
for characterizing the inevitable by-product of every such
dispute as a 'taking' of private property."
Williamson, supra, 473 U.S., at 205, 105 S.Ct., at
3127 (opinion concurring in judgment).
implications of today's decision are obvious and, I fear,
Cautious local officials and land-use planners may
avoid taking any action that might later be challenged and
thus give rise to a damages action. Much important regulation
will never be enacted, [FN17] even
perhaps in 341 the health
and safety area.
Were this result mandated by the Constitution, these
serious implications would have to be ignored.
But the loose cannon the Court fires today is not only
unattached to the Constitution, but it also takes aim at a
long line of precedents in the regulatory takings area.
It would be the better part of valor simply to decide
the case at hand instead of igniting the kind of litigation
explosion that this decision will undoubtedly touch off.
It is no answer to say that "[a]fter all, if a policeman
must know the Constitution, then why not a planner?"
San Diego Gas & Electric Co. v. San Diego, 450
U.S. 621, 661, n. 26, 101 S.Ct. 1287, 1309, n. 26, 67 L.Ed.2d
551 (1981) (BRENNAN, J., dissenting). To begin with, the Court
has repeatedly recognized that it itself cannot establish
any objective rules to assess when a regulation becomes a
Hodel v. Irving, 481 U.S. 704, 713-714, 107 S.Ct. 2076, ----,
95 L.Ed.2d 668 (1987);
Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 326,
62 L.Ed.2d 210 (1979);
Penn Central, 438 U.S., at 123-124, 98 S.Ct., at 2658‑2659.
How then can it demand that land planners do any better?
However confusing some of our criminal procedure cases
may be, I do not believe they have been as open-ended and
standardless as our regulatory takings cases are. As one commentator concluded:
"The chaotic state
of taking law makes it especially likely that availability
of the damages remedy will induce land-use planning officials
to stay well back of the invisible line that they dare not
Compensation for Invalid Land-Use Regulations, 15 Ga.L.Rev.
559, 594 (1981); see
also Sallet, The Problem of Municipal Liability for Zoning
and Land-Use Regulation, 31 Cath.U.L.Rev. 465, 478 (1982);
Charles v. Diamond, 41 N.Y.2d 318, 331-332, 392 N.Y.S.2d
594, 604, 360 N.E.2d 1295, 1305 (1977); Allen v. City and
County of Honolulu, 58 Haw. 432, 439, 571 P.2d 328, 331 (1977).
Another critical distinction between police activity and land-use
planning is that not every missed call by a policeman gives
rise to civil liability;
police officers enjoy individual immunity for actions
taken in good faith. See Harlow v. Fitzgerald,
457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982);
Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82
L.Ed.2d 139 (1984). Moreover, municipalities
are not subject to civil liability for police officers' routine
See Monell v. New York City Dept. of Social Services,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
In the land regulation context, however, I am afraid
that any decision by a competent regulatory body may establish
a "policy or custom" and give rise to liability