Agins v. City of Tiburon

No. 79-602

Argued April 15, 1980

Decided June 10, 1980

447 U.S. 255

APPEAL FROM THE SUPREME COURT OF CALIFORNIA

Syllabus



After 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 unconstitutional.  The 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 affirmed.



Held:  The zoning ordinances, on their face, do not take appellants'

property without just compensation.



(a) 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.



(b) 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.



(c) 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.



24 Cal.3d 266, 598 P.2d 25, affirmed.



POWELL, J., delivered the opinion for a unanimous Court. [447 U.S. 257]

POWELL, J., lead opinion



MR. JUSTICE POWELL delivered the opinion of the Court.



The question in this case is whether municipal zoning ordinances

took.appellants' property without just compensation in violation of the

Fifth and Fourteenth Amendments. I



After 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 requirements.  Tiburon, 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. [447 U.S. 258]



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.  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.



The city demurred, claiming that the complaint failed to state a cause

of action.  The Superior Court sustained the demurrer, and the

California Supreme Court affirmed.  24 Cal.3d 266, 598 P.2d 25 (1979). 

The State Supreme Court [447 U.S. 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, 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.



We noted probable jurisdiction. 444 U.S. 1011 (1980).  We now affirm the

holding that the zoning ordinances, on their face, do not take the

appellants' property without just compensation. [447 U.S. 260] II



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 (1972).  See also Goldwater v. Carter, 444 U.S. 996, 997

(1979) (POWELL, J., concurring).  Thus, the only question properly

before us is whether the mere enactment of the zoning ordinances

constitutes a taking.



The application 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 (1928), or denies

an owner economically viable use of his land, see Penn Central Transp.

Co. v. New York City, 438 U.S. 104, 138, n. 36 (1978).  The

determination that 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  [447 U.S. 261] when

property has been taken, see Kaiser Aetna v. United States, 444 U.S.

164 (1979), the question necessarily requires a weighing of private and

public interests.  The seminal decision in Euclid v. Ambler Co., 272

U.S. 365 (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 



In 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).  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. 

Such governmental purposes long have been recognized as legitimate.  See

Penn Central Transp. Co. v. New York City, supra at 129; Village

of Belle Terre v. [447 U.S. 262] Boraas, 416 U.S. 1, 9 (1974); Euclid

v. Ambler Co., supra at 



The ordinances 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 space."  Tiburon, al., 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 might suffer.



Although 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 (1946), nor extinguish a fundamental attribute of ownership,

see Kaiser Aetna v. United States, supra at 179-180.  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 [447

U.S. 263] appellants the "justice and fairness" guaranteed by the Fifth

and Fourteenth Amendments.  See Penn Central Transp. Co. v. New York

City, 438 U.S. at 124. III



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



Affirmed. Footnotes POWELL, J., lead opinion (Footnotes)



1. Shortly after it enacted the ordinances, the city began eminent

domain proceedings against the appellants' land.  The following hear,

however, the city abandoned those proceedings, and its complaint was

dismissed.  The appellants were reimbursed for costs incurred in

connection with the action.



2.  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, (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.



3. 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.



4. 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.



5. 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 and that general municipal planning decisions do not violate

the Fifth Amendment.



6. 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, 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 (1907).



7. 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).



8. 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 to

geology, fire and flood, and other demonstrated consequences of urban

sprawl. Id.  1(c).



9. Appellants also claim that the city's pre-condemnation 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 (1939).  See Thomas W. Garland, Inc. v. City of St. Louis,

596 F.2d 784, 787 (CA8), cert. denied, 444 U.S. 899 (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. 50.06 Acres of

Land, 186 F.Supp. 495, 498 (V.I.1960); 2 J. Sackman & P. Rohan, Nichols'

Law of Eminent Domain  6.13 [3] (3d ed.1979).

