San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621 (1981)

450 U.S. 621
101 S.Ct. 1287
67 L.Ed.2d 551

SAN DIEGO GAS & ELECTRIC COMPANY, Appellant,
v.
CITY OF SAN DIEGO et al.
No. 79-678.
Argued Dec. 1, 1980.
Decided March 24, 1981.

Syllabus

Appellant owns land in appellee city that when purchased as a possible
site for a nuclear power plant was mostly zoned for industrial or
agricultural use. The city rezoned parts of the property, reducing the
acreage for industrial use, and also established an open-space plan that
included appellant's property and proposed that the city acquire the
property to preserve it as a parkland. A bond issue to provide funds for
this acquisition was not approved by the voters, and the property remained
in appellant's hands, subject to the new zoning ordinance and the openspace plan. Thereafter, appellant brought an action in California Superior
Court, alleging that the city had taken its property without just
compensation in violation of the Federal and State Constitutions on the
theory that the city had deprived it of the beneficial use of the property
through the rezoning and adoption of the open-space plan. Appellant
sought damages for inverse condemnation, as well as mandamus and
declaratory relief. The Superior Court awarded damages but dismissed the
mandamus claim, and the California Court of Appeal affirmed. The
California Supreme Court vacated the Court of Appeal's judgment and
retransferred the case to that court for reconsideration in light of the
intervening holding in Agins v. City of Tiburon, 24 Cal.3d 266, 157
Cal.Rptr. 372, 598 P.2d 25, aff'd on other grounds, 447 U.S. 255, 100
S.Ct. 2138, 65 L.Ed.2d 106, that an owner deprived of the beneficial use
of his land by a zoning regulation is not entitled to damages for inverse
condemnation but that his exclusive remedy is invalidation of the
regulation in an action for mandamus or declaratory relief. On
reconsideration, the Court of Appeal then reversed the Superior Court's
judgment, holding that appellant could not recover compensation through
inverse condemnation and that, because the record presented factual
disputes not covered by the trial court, mandamus and declaratory relief
would be available if appellant desired to retry the case. The California
Supreme Court denied further review. Appellant appealed to this Court,
claiming that the Fifth and Fourteenth Amendments required that
compensation be paid whenever private property is taken for public use.
Held : Since 28 U.S.C. § 1257 permits this Court to review only "[f]inal
judgments or decrees" of a state court, the appeal must be dismissed
because of the absence of a final judgment. While the Court of Appeal
decided that monetary compensation is not an appropriate remedy, it did
not decide whether any other remedy is available because it has not
decided whether any taking, in fact, occurred but appeared to have
contemplated further proceedings in the trial court on remand to resolve
the disputed factual issues. Pp. 631-633.
Appeal dismissed.
Louis E. Goebel, San Diego, Cal., for appellant.

C. Alan Sumption, San Diego, Cal., for appellees.
Justice BLACKMUN delivered the opinion of the Court.

1

Appellant San Diego Gas & Electric Company, a California corporation, asks
this Court to rule that a State must provide a monetary remedy to a landowner
whose property allegedly has been "taken" by a regulatory ordinance claimed to
violate the Just Compensation Clause of the Fifth Amendment.1 This question
was left open last Term in Agins v. City of Tiburon, 447 U.S. 255, 263, 100
S.Ct. 2138, 2142, 65 L.Ed.2d 106 (1980). Because we conclude that we lack
jurisdiction in this case, we again must leave the issue undecided.

2

* Appellant owns a 412-acre parcel of land in Sorrento Valley, an area in the
northwest part of the city of San Diego, Cal. It assembled and acquired the
acreage in 1966, at a cost of about $1,770,000 as a possible site for a nuclear
power plant to be constructed in the 1980's. Approximately 214 acres of the
parcel lie within or near an estuary known as the Los Penasquitos Lagoon.2
These acres are low-lying land which serves as a drainage basin for three river
systems. About a third of the land is subject to tidal action from the nearby
Pacific Ocean. The 214 acres are unimproved, except for sewer and utility
lines.3

3

When appellant acquired the 214 acres, most of the land was zoned either for
industrial use or in an agricultural "holding" category.4 The city's master plan,
adopted in 1967, designated nearly all the area for industrial use.

4

Several events that occurred in 1973 gave rise to this litigation. First, the San
Diego City Council rezoned parts of the property. It changed 39 acres from
industrial to agricultural, and increased the minimum lot size in some of the
agricultural areas from 1 acre to 10 acres. The Council recommended, however,
that 50 acres of the agricultural land be considered for industrial development
upon the submission of specific development plans.

5

Second, the city, pursuant to Cal.Gov't Code Ann. § 65563 (West Supp.1981),
established an open-space plan. This statute required each California city and
county to adopt a plan "for the comprehensive and long-range preservation and
conservation of open-space land within its jurisdiction." The plan adopted by
the city of San Diego placed appellant's property among the city's open-space
areas, which it defined as "any urban land or water surface that is essentially
open or natural in character, and which has appreciable utility for park and
recreation purposes, conservation of land, water or other natural resources or
historic or scenic purposes." App. 159. The plan acknowledged appellant's
intention to construct a nuclear power plant on the property, stating that such a
plant would not necessarily be incompatible with the open-space designation.5
The plan proposed, however, that the city acquire the property to preserve it as
parkland.

6

Third, the City Council proposed a bond issue in order to obtain funds to
acquire open-space lands. The Council identified appellant's land as among
those properties to be acquired with the proceeds of the bond issue. The
proposition, however, failed to win the voters' approval. The open-space plan
has remained in effect, but the city has made no attempt to acquire appellant's
property.

7

On August 15, 1974, appellant instituted this action in the Superior Court for
the County of San Diego against the city and a number of its officials. It alleged
that the city had taken its property without just compensation, in violation of
the Constitutions of the United States and California. Appellant's theory was
that the city had deprived it of the entire beneficial use of the property through
the rezoning and the adoption of the open-space plan. It alleged that the city
followed a policy of refusing to approve any development that was inconsistent
with the plan, and that the only beneficial use of the property was as an
industrial park, a use that would be inconsistent with the open-space
designation.6 The city disputed this allegation, arguing that appellant had never
asked its approval for any development plan for the property. It also contended
that, as a charter city, it was not bound by the open-space plan, even if
appellant's proposed development would be inconsistent, with the plan, citing
Cal.Gov't Code Ann. §§ 65700, 65803 (West 1966 and Supp.1981).

8

Appellant sought damages of $6,150,000 in inverse condemnation, as well as
mandamus and declaratory relief. Prior to trial, the court dismissed the
mandamus claim, holding that "mandamus is not the proper remedy to
challenge the validity of a legislative act." Clerk's Tr. 42. After a nonjury trial
on the issue of liability, the court granted judgment for appellant, finding that:

9

"29. [Due to the] continuing course of conduct of the defendant City
culminating in June of 1973, and, in particular, the designation of substantially
all of the subject property as open space . . ., plaintiff has been deprived of all
practical, beneficial or economic use of the property designated as open space,
and has further suffered severance damage with respect to the balance of the
subject property.

10

"30. No development could proceed on the property designated as open space
unless it was consistent with open space. In light of the particular characteristics
of the said property, there exists no practical, beneficial or economic use of the
said property designated as open space which is consistent with open space.

11

"31. Since June 19, 1973, the property designated as

12

open space has been devoted to use by the public as open space.

13

"32. Following the actions of the defendant City in June

14

of 1973, it would have been totally impractical and futile for plaintiff to have
applied to defendant City for the approval of any development of the property
designated as open space or the remainder of the subject property.

15

"33. Since the actions of the defendant City in June of

16

1973, the property designated as open space and the remainder of the larger
parcel is unmarketable in that no other person would be willing to purchase the
property, and the property has at most a nominal fair market value." App. 4142.

17

The court concluded that these findings established that the city had taken the
property and that just compensation was required by the Constitutions of both
the United States and California. A subsequent jury trial on the question of
damages resulted in a judgment for appellant for over $3 million.

18

On appeal, the California Court of Appeal, Fourth District, affirmed. App. to
Juris, Statement B-1; see 146 Cal.Rptr. 103 (1978). It held that neither a change
in zoning nor the adoption of an open-space plan automatically entitled a
property owner to compensation for any resulting diminution in the value of the
property. In this case, however, the record revealed that the city followed the
policy of enacting and enforcing zoning ordinances that were consistent with its
open-space plan. The Court of Appeal also found that the evidence supported
the conclusion that industrial use was the only feasible use for the property and
that the city would have denied any application for industrial development
because it would be incompatible with the open-space designation. Appellant's
failure to present a plan for developing the property therefore did not preclude
an award of damages in its favor. The Court of Appeal, with one judge
dissenting, denied the city's petition for rehearing. See 146 Cal.Rptr., at 118.

19

The Supreme Court of California, however, on July 13, 1978, granted the city's
petition for a hearing. This action automatically vacated the Court of Appeal's
decision, depriving it of all effect. Knouse v. Nimocks, 8 Cal.2d 482, 483-484,
66 P.2d 438 (1937). See also Cal.Rules of Court 976(d) and 977 (West 1981).
Before the hearing, the Supreme Court in June 1979 retransferred the case to
the Court of Appeal for reconsideration in light of the intervening decision in
Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979),
aff'd, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980).7 The California
court in Agins held that an owner who is deprived of substantially all beneficial
use of his land by a zoning regulation is not entitled to an award of damages in
an inverse condemnation proceeding. Rather, his exclusive remedy is
invalidation of the regulation in an action for mandamus or declaratory relief. 8
Agins also held that the plaintiffs in that case were not entitled to such relief
because the zoning ordinance at issue permitted the building of up to five
residences on their property. Therefore, the court held, it did not deprive those
plaintiffs of substantially all reasonable use of their land.9

20

When the present case was retransferred, the Court of Appeal, in an
unpublished opinion, reversed the judgment of the Superior Court. App. 63. It
relied upon the California decision in Agins and held that appellant could not
recover compensation through inverse condemnation. It, however, did not
invalidate either the zoning ordinance or the open-space plan. Instead, it held
that factual disputes precluded such relief on the present state of the record:

21

"[Appellant] complains it has been denied all use of its land which is zoned for
agriculture and manufacturing but lies within the open space area of the general
plan. It has not made application to use or improve the property nor has it asked
[the] City what development might be permitted. Even assuming no use is
acceptable to the City, [appellant's] complaint deals with the alleged
overzealous use of the police power by [the] City. Its remedy is mandamus or
declaratory relief, not inverse condemnation. [Appellant] did in its complaint
seek these remedies asserting that [the] City had arbitrarily exercised its police
power by enacting an unconstitutional zoning law and general plan element or
by applying the zoning and general plan unconstitutionally. However, on the
present record these are disputed fact issues not covered by the trial court in its
findings and conclusions. They can be dealt with anew should [appellant] elect
to retry the case." App. 66.

22

The Supreme Court of California denied further review. App. to Juris.
Statement I-1. Appellant appealed to this Court, arguing that the Fifth and
Fourteenth Amendments require that compensation be paid whenever private
property is taken for public use. Appellant takes issue with the California
Supreme Court's holding in Agins that its remedy is limited to invalidation of
the ordinance in a proceeding for mandamus or declaratory relief. We
postponed consideration of our jurisdiction until the hearing on the merits. 447
U.S. 919, 100 S.Ct. 3008, 65 L.Ed.2d 1111 (1980). We now conclude that the
appeal must be dismissed because of the absence of a final judgment.10
II

23

In Agins, the California Supreme Court held that mandamus or declaratory
relief is available whenever a zoning regulation is claimed to effect an
uncompensated taking in violation of the Fifth and Fourteenth Amendments.
The Court of Appeal's failure, therefore, to award such relief in this case clearly
indicates its conclusion that the record does not support appellant's claim that
an uncompensated taking has occurred.11 Because the court found that the
record presented "disputed fact issues not covered by the trial court in its
findings and conclusions," App. 66,12 it held that mandamus and declaratory
relief would be available "should [appellant] elect to retry the case." Ibid. While
this phrase appears to us to be somewhat ambiguous, we read it as meaning that
appellant is to have an opportunity on remand to convince the trial court to
resolve the disputed issues in its favor. We do not believe that the Court of
Appeal was holding that judgment must be entered for the city. It certainly did
not so direct. This indicates that appellant is free to pursue its quest for relief in
the Superior Court. The logical course of action for an appellate court that finds
unresolved factual disputes in the record is to remand the case for the resolution
of those disputes. We therefore conclude that the Court of Appeal's decision
contemplates further proceedings in the trial court.13

III
24

Ever since this Court's decision in Grays Harbor Co. v. Coats-Fordney Co.,
243 U.S. 251, 37 S.Ct. 295, 61 L.Ed. 702 (1917), a state court's holding that
private property has been taken in violation of the Fifth and Fourteenth
Amendments and that further proceedings are necessary to determine the
compensation that must be paid has been regarded as a classic example of a
decision not reviewable in this Court because it is not "final." In such a case,
"the remaining litigation may raise other federal questions that may later come
here." Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 127, 65 S.Ct. 1480,
89 L.Ed. 2092 (1945). This is because "the federal constitutional question
embraces not only a taking, but a taking on payment of just compensation. A
state judgment is not final unless it covers both aspects of that integral
problem." North Dakota Board of Pharmacy v. Snyder's Drug Stores, Inc., 414
U.S. 156, 163, 94 S.Ct. 407, 412, 38 L.Ed.2d 379 (1973).

25

This case presents the reverse aspect of that situation. The Court of Appeal has
decided that monetary compensation is not an appropriate remedy for any
taking of appellant's property that may have occurred, but it has not decided
whether any other remedy is available because it has not decided whether any
taking in fact has occurred. Thus, however we might rule with respect to the
Court of Appeal's decision that appellant is not entitled to a monetary remedy—
and we are frank to say that the federal constitutional aspects of that issue are
not to be cast aside lightly—further proceedings are necessary to resolve the
federal question whether there has been a taking at all. The court's decision,
therefore, is not final, and we are without jurisdiction to review it.

26

Because § 1257 permits us to review only "[f]inal judgments or decrees" of a
state court, the appeal must be, and is, dismissed.

27

It is so ordered.

28

Justice REHNQUIST, concurring.

29

If I were satisfied that this appeal was from a "final judgment or decree" of the
California Court of Appeal, as that term is used in 28 U.S.C. § 1257, I would
have little difficulty in agreeing with much of what is said in the dissenting
opinion of Justice BRENNAN. Indeed, the Court's opinion notes, that "the
federal constitutional aspects of that issue are not to be cast aside lightly. . . ."
Ante, p. 633.

30

But "the judicial Power of the United States" which is vested in this Court by
Art. III of the Constitution is divided by that article into original jurisdiction
and appellate jurisdiction. With respect to appellate jurisdiction, Art. III
provides:

31

"In all the other Cases before mentioned, the supreme Court shall have
appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under
such Regulations as the Congress shall make."

32

The particular "regulation" of our appellate jurisdiction here relevant is found in
28 U.S.C. § 1257, which provides:

33

"Final judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court as follows:

34

* * * * *

35

"(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."

36

The principal case construing § 1257 is Cox Broadcasting Corp. v. Cohn, 420
U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), from which I dissented on the
issue of finality. In Cox, the Court said:

37

"The Court has noted that '[c]onsiderations of English usage as well as those of
judicial policy' would justify an interpretation of the final-judgment rule to
preclude review 'where anything further remains to be determined by a State
court, no matter how dissociated from the only federal issue that has finally
been adjudicated by the highest court of the State.' Radio Station WOW, Inc. v.
Johnson, 326 U.S. 120, 124 [65 S.Ct. 1475, 1478, 89 L.Ed. 2092] (1945). But
the Court there observed that the rule had not been administered in such a
mechanical fashion and that there were circumstances in which there had been
'a departure from this requirement of finality for federal appellate jurisdiction.'
Ibid.

38

"These circumstances were said to be 'very few,' ibid.; but as the cases have
unfolded, the Court has recurringly encountered situations in which the highest
court of a State has finally determined the federal issue present in a particular
case, but in which there are further proceedings in the lower state courts to
come. There are now at least four categories of such cases in which the Court
has treated the decision of the federal issue as a final judgment for the purposes
of 28 U.S.C. § 1257 and has taken jurisdiction without awaiting the completion
of the additional proceedings anticipated in the lower state courts." Id., at 477,
95 S.Ct., at 1037.

39

In Cox, the Court stated that the fourth category of cases which fell within the
ambit of § 1257 finality were "those situations where the federal issue has been
finally decided in the state courts with further proceedings pending in which the
party seeking review here might prevail on the merits on nonfederal grounds,
thus rendering unnecessary review of the federal issue by this Court, and where
reversal of the state court on the federal issue would be preclusive of any
further litigation on the relevant cause of action rather than merely controlling
the nature and character of, or determining the admissibility of evidence in, the
state proceedings still to come. In these circumstances, if a refusal to
immediately review the state-court decision might seriously erode federal
policy, the Court has entertained and decided the federal issue, which itself has
been finally determined by the state courts for purposes of the state litigation."
Id., at 482-483, 95 S.Ct., at 1039.

40

I am not sure under how many of the four exceptions of Cox Justice
BRENNAN may view this case as falling, but it seems to me that this case
illustrates the problems which arise from a less-than-literal reading of the
language "final judgment or decree." The procedural history of this case in the
state courts is anomalous, to say the least, and it has resulted in a majority of
this Court concluding that the California courts have not decided whether any
taking in fact has occurred, ante, at 631, n. 11, and Justice BRENNAN
concluding that the Court of Appeal has held that the city of San Diego's course
of conduct could not effect a "taking" of appellant's property. Post, at 661, n.
27. Having read the characterization of the California court proceedings in the
opinion of this Court and in the opinion of Justice BRENNAN as carefully as I
can, I can only conclude that they disagree as to what issues remain open on
remand from the State Court of Appeal to the Superior Court, but agree that
such proceedings may occur.

41

Under these circumstances, it seems to me to be entirely in accord with the
language of 28 U.S.C. § 1257, though perhaps not entirely in accord with the
above-quoted portion of the opinion in Cox Broadcasting Corp. v. Cohn, supra,
to conclude that this appeal is not from a "final judgment or decree." I would
feel much better able to formulate federal constitutional principles of damages
for land-use regulation which amounts to a taking of land under the Eminent
Domain Clause of the Fifth Amendment if I knew what disposition the
California courts finally made of this case. Because I do not, and cannot at this
stage of the litigation, know that, I join the opinion of the Court today in which
the appeal is dismissed for want of a final judgment.

42

Justice BRENNAN, with whom Justice STEWART, Justice MARSHALL, and
Justice POWELL join, dissenting.

43

Title 28 U.S.C. § 1257 limits this Court's jurisdiction to review judgments of
state courts to "[f]inal judgments or decrees rendered by the highest court of a
State in which a decision could be had." The Court today dismisses this appeal
on the ground that the Court of Appeal of California, Fourth District, failed to
decide the federal question whether a "taking" of appellant's property had
occurred, and therefore had not entered a final judgment or decree on that
question appealable under § 1257. Because the Court's conclusion
fundamentally mischaracterizes the holding and judgment of the Court of
Appeal, I respectfully dissent from the Court's dismissal and reach the merits of
appellant's claim.

44

* In 1966, appellant assembled a 412-acre parcel of land as a potential site for a
nuclear power plant. At that time, approximately 116 acres of the property were
zoned for industrial use, with most of the balance zoned in an agricultural
holding category. In 1967, appellee city of San Diego adopted its general plan,
designating most of appellant's property for industrial use. In 1973, the city
took three critical actions which together form the predicate of the instant
litigation: it down-zoned some of appellant's property from industrial to
agricultural; it incorporated a new open-space element in its plan that
designated about 233 acres of appellant's land for open-space use;1 and it
prepared a report mapping appellant's property for purchase by the city for
open-space use, contingent on passage of a bond issue. App. 49.

45

Appellant filed suit in California Superior Court alleging, inter alia, a "taking"
of its property by "inverse condemnation" in violation of the United States and
California Constitutions,2 and seeking compensation of over $6 million. After a
nonjury trial on liability, the court held that appellee city had taken a portion of
appellant's property without just compensation, thereby violating the United
States and California Constitutions. Id., at 42-43. A subsequent jury trial on
damages resulted in a judgment of over $3 million, plus interest as of the date
of the "taking," and appraisal, engineering, and attorney's fees. Id., at 46.

46

The California Court of Appeal, Fourth District, affirmed, holding that there
was "substantial evidence to support the court's conclusion [that] there was
inverse condemnation." Id., at 54. The California Supreme Court granted the
city's petition for a hearing, App. to Juris. Statement D-1, but later transferred
the case back to the Court of Appeal for reconsideration in light of Agins v. City
of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979), aff'd, 447
U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). App. to Juris. Statement E-1.
Expressly relying on Agins, the Court of Appeal this time reversed the Superior
Court, holding:

47

"Unlike the person whose property is taken in eminent domain, the individual
who is deprived of his property due to the state's exercise of its police power is
not entitled to compensation. . . . A local entity's arbitrary unconstitutional
exercise of the police power which deprives the owner of the beneficial use of
his land does not require compensation; rather the party's remedy is
administrative mandamus. . . ." App. 65-66.

48

The California Supreme Court denied further review. App. to Juris. Statement
I-1.
II

49

The Court today holds that the judgment below is not "final" within the
meaning of 28 U.S.C. § 1257 because, although the California Court of Appeal
"has decided that monetary compensation is not an appropriate remedy for any
taking of appellant's property that may have occurred, . . . it has not decided
whether any other remedy is available because it has not decided whether any
taking in fact has occurred." Ante, at 633 (emphasis added). With all due
respect, this conclusion misreads the holding of the Court of Appeal. In faithful
compliance with the instructions of the California Supreme Court's opinion in
Agins v. City of Tiburon, supra, the Court of Appeal held that the city's exercise
of its police power, however arbitrary or excessive, could notas a matter of
federal constitutional law constitute a "taking" under the Fifth and Fourteenth
Amendments, and therefore that there was no "taking" without just
compensation in the instant case.

50

Examination of the Court of Appeal's opinion and the California Supreme
Court's Agins opinion confirms this reading. As indicated above, the Court of
Appeal noted that, "[u]nlike the person whose property is taken in eminent
domain, the individual who is deprived of his property dueto the state's exercise
of its police power is not entitled to compensation." App. 65-66 (emphasis
added). Under the Court of Appeal's view, there can be no Fifth Amendment
"taking" outside of the eminent domain context. Thus, a "local entity's arbitrary
unconstitutional exercise of the police power which deprives the owner of the
beneficial use of his land does not require compensation; rather the party's
remedy is administrative mandamus." Id., at 66 (emphasis added). 3

51

The Court of Appeal's analysis was required by the California Supreme Court's
opinion in Agins v. City of Tiburon, supra. There the court stated:

52

"Plaintiffs contend that the limitations on the use of their land imposed by the
ordinance constitute an unconstitutional 'taking of [plaintiff's] property without
payment of just compensation' for which an action in inverse condemnation
will lie. Inherent in the contention is the argument that a local entity's exercise
of its police power which, in a given case, may exceed constitutional limits is
equivalent to the lawful taking of property by eminent domain thereby
necessitating the payment of compensation. We are unable to accept this
argument believing the preferable view to be that, while such governmental
action is invalid because of its excess, remedy by way of damages in eminent
domain is not thereby made available." 24 Cal.3d, at 272, 157 Cal.Rptr. 372,
598 P.2d, at 28 (brackets in original) (emphasis added).4

53

A landowner may not "elect to sue in inverse condemnation and thereby
transmute an excessive use of the police power- into a lawful taking for which
compensation in eminent domain must be paid." Id., at 273, 157 Cal.Rptr., at
375, 598 P.2d, at 28 (emphasis added).5

54

This Court therefore, errs, I respectfully submit, when it concludes that the
Court of Appeal "has not decided whether any taking in fact has occurred."
Ante, at 633. For whatever the merits of the California courts' substantive
rulings on the federal constitutional issue, see infra, at 646-661, it is clear that
the California Supreme Court has held that California courts in a challenge, as
here, to a police power regulation, are barred from holding that a Fifth
Amendment "taking" requiring just compensation has occurred. 6 No set of
factual circumstances, no matter how severe, can "transmute" an arbitrary
exercise of the city's police power into a Fifth Amendment "taking." Agins v.
City of Tiburon, supra, at 273, 157 Cal.Rptr., at 375, 598 P.2d, at 28. This
Court's focus on the last full paragraph of the Court of Appeal decision, ante, at
630, to support its conclusion is misplaced, because that paragraph merely
raises the possibility that appellant may "elect to retry the case" on a different
constitutional theory—an allegation of "overzealous use of the police power,"
App. 66. Whatever factual findings of the trial court might be relevant to that
inquiry, they would have no bearing on a Fifth Amendment "taking" claim.7
Therefore, the Court's suggestion that "further proceedings are necessary to
resolve the federal question whether there has been a taking at all," is plainly
wrong. Ante, at 633. 8

55

The trial court has held expressly that the "actions of defendant City . . . taken
as a whole, constitute a taking of the portion of plaintiff's property designated as
open space without due process of law and just compensation within the
meaning of the California and United States constitutions." App. 42-43
(emphasis added). The Court of Appeal reversed this holding and concluded as
a matter of law that no Fifth Amendment "taking" had occurred. This is
indistinguishable, then, from a dismissal of appellant's case for legal
insufficiency. In any such dismissal, factual questions are necessarily left
unresolved. But when a litigant is denied relief as a matter of law, the judgment
is necessarily final within the meaning of § 1257. See, e. g., Allenberg Cotton
Co. v. Pittman, 419 U.S. 20, 24-25, 95 S.Ct. 260, 263, 42 L.Ed.2d 195 (1974);
Windward Shipping v. American Radio Assn., 415 U.S. 104, 108, 94 S.Ct. 959,
962, 39 L.Ed.2d 195 (1974).9

56

Since the Court of Appeal held that no Fifth Amendment "taking" had
occurred, no just compensation was required. This is a classic final judgment.
See North Dakota Pharmacy Bd. v. Snyder's Drug Stores, Inc., 414 U.S. 156,
163, 94 S.Ct. 407, 412, 38 L.Ed.2d 379 (1973); Grays Harbor Logging Co. v.
Coats-Fordney Logging Co., 243 U.S. 251, 256, 37 S.Ct. 295, 297, 61 L.Ed.
702 (1917). I therefore dissent from the dismissal of this appeal, and address
the merits of the question presented.10
III

57

The Just Compensation Clause of the Fifth Amendment made applicable to the
States through the Fourteenth Amendment, Webb's Fabulous Pharmacies, Inc.
v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980); see
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239, 241, 17 S.Ct. 581, 585,
586, 41 L.Ed. 976 (1897), states in clear and unequivocal terms: "[N]or shall
private property be taken for public use, without just compensation." The
question presented on the merits in this case is whether a government entity
must pay just compensation when a police power regulation has effected a
"taking" of "private property" for "public use" within the meaning of that
constitutional provision.11 Implicit in this question is the corollary issue
whether a government entity's exercise of its regulatory police power can ever
effect a "taking" within the meaning of the Just Compensation Clause.12

58

* As explained in Part II, supra, the California courts have held that a city's
exercise of its police power, however arbitrary or excessive, cannot as a matter
of federal constitutional law constitute a "taking" within the meaning of the
Fifth Amendment. This holding flatly contradicts clear precedents of this Court.
For example, in last Term's Agins v. City of Tiburon, 447 U.S. 255, 260, 100
S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980), the Court noted that "[t]he
application of a general zoning law to particular property effects a taking if the
ordinance does not substantially advance legitimate state interests . . . or [if it]
denies an owner economically viable use of his land . . .."13 Applying that
principle, the Court examined whether the Tiburon zoning ordinance effected a
"taking" of the Agins' property, concluding that it did not have such an effect.
Id., at 262-263, 100 S.Ct., at 2142-2143.

59

In Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57
L.Ed.2d 631 (1978), the Court analyzed "whether the restrictions imposed by
New York City's [Landmarks Preservation] law upon appellants' exploitation of
the [Grand Central] Terminal site effect a 'taking' of appellants' property . . .
within the meaning of the Fifth Amendment." Id., at 122, 98 S.Ct., at 2658.
Canvassing the appropriate inquiries necessary to determine whether a
particular restriction effected a "taking," the Court identified the "economic
impact of the regulation on the claimant" and the "character of the
governmental action" as particularly relevant considerations. Id., at 124, 98
S.Ct., at 2659; see id., at 130-131, 98 S.Ct., at 2662. Although the Court
ultimately concluded that application of New York's Landmarks Law did not
effect a "taking" of the railroad property, it did so only after deciding that "[t]he
restrictions imposed are substantially related to the promotion of the general
welfare and not only permit reasonable beneficial use of the landmark site but
also afford appellants opportunities further to enhance not only the Terminal
site proper but also other properties." Id., at 138, 98 S.Ct., at 2666 (footnote
omitted).

60

The constitutionality of a local ordinance regulating dredging and pit
excavating on a property was addressed in Goldblatt v. Town of Hempstead,
369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). After observing that an
otherwise valid zoning ordinance that deprives the owner of the most beneficial
use of his property would not be unconstitutional, id., at 592, 82 S.Ct., at 989,
the Court cautioned: "That is not to say, however, that governmental action in
the form of regulation cannot be so onerous as to constitute a taking which
constitutionally requires compensation," id., at 594, 82 S.Ct., at 990. On many
other occasions, the Court has recognized in passing the vitality of the general
principle that a regulation can effect a Fifth Amendment "taking." See, e. g.,
PruneYard Shopping Center v. Robins, 447 U.S. 74, 83, 100 S.Ct. 2035, 2042,
64 L.Ed.2d 741 (1980); Kaiser Aetna v. United States, 444 U.S. 164, 174, 100
S.Ct. 383, 390, 62 L.Ed.2d 332 (1979); Andrus v. Allard, 444 U.S. 51, 65-66,
100 S.Ct. 318, 326, 62 L.Ed.2d 210 (1979); United States v. Central Eureka
Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958).

61

The principle applied in all these cases has its source in Justice Holmes' opinion
for the Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct.
158, 160, 67 L.Ed. 322 (1922), in which he stated: "The 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."14 The determination of a "taking" is "a
question of degree—and therefore cannot be disposed of by general
propositions." Id., at 416, 43 S.Ct., at 160. 15 While acknowledging that "
[g]overnment 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," id., at 413, 43 S.Ct., at 159, the Court rejected the proposition that police
power restrictions could never be recognized as a Fifth Amendment "taking."16
Indeed, the Court concluded that the Pennsylvania statute forbidding the
mining of coal that would cause the subsidence of any house effected a
"taking." Id., at 414-416, 43 S.Ct., at 159. 17
B

62

Not only does the holding of the California Court of Appeal contradict
precedents of this Court, but it also fails to recognize the essential similarity of
regulatory "takings" and other "takings." The typical "taking" occurs when a
government entity formally condemns a landowner's property and obtains the
fee simple pursuant to its sovereign power of eminent domain. See,e. g.,
Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954).
However, a "taking" may also occur without a formal condemnation
proceeding or transfer of fee simple. This Court long ago recognized that

63

"[i]t would be a very curious and unsatisfactory result, if in construing [the Just
Compensation Clause] . . . it shall be held that if the government refrains from
the absolute conversion of real property to the uses of the public it can destroy
its value entirely, can 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 public use."
Pumpelly v. Green Bay Co., 13 Wall. 166, 177-178, 20 L.Ed. 557 (1872)
(emphasis in original).

64

See Chicago, R. I. & P. R. Co. v. United States, 284 U.S. 80, 96, 52 S.Ct. 87,
92, 76 L.Ed. 177 (1931).

65

In service of this principle, the Court frequently has found "takings" outside the
context of formal condemnation proceedings or transfer of fee simple, in cases
where government action benefiting the public resulted in destruction of the use
and enjoyment of private property. E. g., Kaiser Aetna v. United States, 444
U.S., at 178-180, 100 S.Ct., at 392 (navigational servitude allowing public right
of access); United States v. Dickinson, 331 U.S. 745, 750-751, 67 S.Ct. 1382,
1385, 91 L.Ed. 1789 (1947) (property flooded because of Government dam
project); United States v. Causby, 328 U.S. 256, 261-262, 66 S.Ct. 1062, 1065,
90 L.Ed. 1206 (1946) (frequent low altitude flights of Army and Navy aircraft
over property); Pennsylvania Coal Co. v. Mahon, 260 U.S., at 414-416, 43
S.Ct., at 159 (state regulation forbidding mining of coal).

66

Police power regulations such as zoning ordinances and other land-use
restrictions can destroy the use and enjoyment of property in order to promote
the public good just as effectively as formal condemnation or physical invasion
of property. 18 From the property owner's point of view, it may matter little
whether his land is condemned or flooded, or whether it is restricted by
regulation to use in its natural state, if the effect in both cases is to deprive him
of all beneficial use of it. From the government's point of view, the benefits
flowing to the public from preservation of open space through regulation may
be equally great as from creating a wildlife refuge through formal
condemnation or increasing electricity production through a dam project that
floods private property. Appellees implicitly posit the distinction that the
government intends to take property through condemnation or physical invasion
whereas it does not through police power regulations. See Brief for Appellees
43. But "the Constitution measures a taking of property not by what a State
says, or by 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, J.,
concurring) (emphasis in original); see Davis v. Newton Coal Co., 267 U.S.
292, 301, 45 S.Ct. 305, 306, 69 L.Ed. 617 (1925). It is only logical, then, that
government action other than acquisition of title, occupancy, or physical
invasion can be a "taking," and therefore a de facto exercise of the power of
eminent domain, where the effects completely deprive the owner of all or most
of his interest in the property. United States v. Dickinson, supra, at 748, 67
S.Ct., at 1384; United States v. General Motors Corp., 323 U.S. 373, 378, 65
S.Ct. 357, 359, 89 L.Ed. 311 (1945).
IV

67

Having determined that property may be "taken for public use" by police power
regulation within the meaning of the Just Compensation Clause of the Fifth
Amendment, the question remains whether a government entity may
constitutionally deny payment of just compensation to the property owner and
limit his remedy to mere invalidation of the regulation instead. Appellant
argues that it is entitled to the full fair market value of the property. Appellees
argue that invalidation of the regulation is sufficient without payment of
monetary compensation. In my view, once a court establishes that there was a
regulatory "taking," the Constitution demands that the government entity pay
just compensation for the period commencing on the date the regulation first
effected the "taking," and ending on the date the government entity chooses to
rescind or otherwise amend19 the regulation. 20 This interpretation, I believe, is
supported by the express words and purpose of the Just Compensation Clause,
as well as by cases of this Court construing it.

68

The language of the Fifth Amendment prohibits the "tak[ing]" of private
property for "public use" without payment of "just compensation." As soon as
private property has been taken, whether through formal condemnation
proceedings, occupancy, physical invasion, or regulation, the landowner has
already suffered a constitutional violation, and " 'the self-executing character of
the constitutional provision with respect to compensation,' " United States v.
Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980),
quoting 6 J. Sackman, Nichols' Law of Eminent Domain § 25.41 (rev. 3d ed.
1980), is triggered. This Court has consistently recognized that the just
compensation requirement in the Fifth Amendment is not precatory: once there
is a "taking," compensation must be awarded. In Jacobs v. United States, 290
U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933), for example, a Government dam
project creating intermittent overflows onto petitioners' property resulted in the
"taking" of a servitude. Petitioners brought suit against the Government to
recover just compensation for the partial "taking." Commenting on the nature
of the landowners' action, the Court observed:

69

"The 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.

70

Such a promise was implied because of the duty to pay imposed by the
Amendment." Id., at 16, 54 S.Ct., at 27.

71

See also Griggs v. Allegheny County, 369 U.S. 84, 84-85, 88-90, 82 S.Ct. 531,
533, 7 L.Ed.2d 585 (1962); United States v. Causby, 328 U.S., at 268, 66 S.Ct.,
at 1069. 21 Invalidation unaccompanied by payment of damages would hardly
compensate the landowner for any economic loss suffered during the time his
property was taken.22

72

Moreover, mere invalidation would fall far short of fulfilling the fundamental
purpose of the Just Compensation Clause. That guarantee was designed to bar
the government from forcing some individuals to bear burdens which, in all
fairness, should be borne by the public as a whole. Armstrong v. United States,
364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). See Agins v. City
of Tiburon, 447 U.S., at 260, 100 S.Ct., at 2141; Andrus v. Allard, supra, 444
U.S., at 65, 100 S.Ct., at 326. When one person is asked to assume more than a
fair share of the public burden, the payment of just compensation operates to
redistribute that economic cost from the individual to the public at large. See
United States v. Willow River Co., 324 U.S. 499, 502, 65 S.Ct. 761, 763, 89
L.Ed. 1101 (1945); Monongahela Navigation Co. v. United States, 148 U.S.
312, 325, 13 S.Ct. 622, 625, 37 L.Ed. 463 (1893). Because police power
regulations must be substantially related to the advancement of the public
health, safety, morals, or general welfare, see Village of Euclid v. Ambler Realty
Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926), it is axiomatic
that the public receives a benefit while the offending regulation is in effect.23 If
the regulation denies the private property owner the use and enjoyment of his
land and is found to effect a "taking," it is only fair that the public bear the cost
of benefits received during the interim period between application of the
regulation and the government entity's rescission of it. The payment of just
compensation serves to place the landowner in the same position monetarily as
he would have occupied if his property had not been taken. Almota Farmers
Elevator & Warehouse Co. v. United States, 409 U.S. 470, 473-474, 93 S.Ct.
791, 794, 35 L.Ed.2d 1 (1973); United State v. Reynolds, 397 U.S. 14, 16, 90
S.Ct. 803, 805, 25 L.Ed.2d 12 (1970).

73

The fact that a regulatory "taking" may be temporary, by virtue of the
government's power to rescind or amend the regulation, does not make it any
less of a constitutional "taking." Nothing in the Just Compensation Clause
suggests that "takings" must be permanent and irrevocable. Nor does the
temporary reversible quality of a regulatory "taking" render compensation for
the time of the "taking" any less obligatory. This Court more than once has
recognized that temporary reversible "takings" should be analyzed according to
the same constitutional framework applied to permanent irreversible "takings."
For example, in United States v. Causby, supra, at 258-259, 66 S.Ct., at 1064,
the United States had executed a lease to use an airport for a one-year term
"ending June 30, 1942, with a provision for renewals until June 30, 1967, or six
months after the end of the national emergency, whichever [was] the earlier."
The Court held that the frequent low-level flights of Army and Navy airplanes
over respondents' chicken farm, located near the airport, effected a "taking" of
an easement on respondents' property. 328 U.S., at 266-267, 66 S.Ct., at 1068.
However, because the flights could be discontinued by the Government at any
time, the Court remanded the case to the Court of Claims: "Since on this record
it is not clear whether the easement taken is a permanent or a temporary one, it
would be premature for us to consider whether the amount of the award made
by the Court of Claims was proper." Id., at 268, 66 S.Ct., at 1069 (emphasis
added). In other cases where the Government has taken only temporary use of a
building, land, or equipment, the Court has not hesitated to determine the
appropriate measure of just compensation. See Kimball Laundry Co. v. United
States, 338 U.S. 1, 6, 69 S.Ct. 1434, 1438, 93 L.Ed. 1765 (1949); United States
v. Petty Motor Co., 327 U.S. 372, 374-375, 66 S.Ct. 596, 598, 90 L.Ed. 729
(1946); United States v. General Motors Corp., 323 U.S., at 374-375, 65 S.Ct.,
at 358.

74

But contrary to appellant's claim that San Diego must formally condemn its
property and pay full fair market value, nothing in the Just Compensation
Clause empowers a court to order a government entity to condemn the property
and pay its full fair market value, where the "taking" already effected is
temporary and reversible and the government wants to halt the "taking." Just as
the government may cancel condemnation proceedings before passage of title,
see 6 J. Sackman, Nichols' Law of Eminent Domain § 24.113, p. 24-21 (rev. 3d
ed. 1980), or abandon property it has temporarily occupied or invaded, see
United States v. Dow, 357 U.S. 17, 26, 78 S.Ct. 1039, 1046, 2 L.Ed.2d 1109
(1958), it must have the same power to rescind a regulatory "taking." As the
Court has noted: "[A]n abandonment does not prejudice the property owner. It
merely results in an alteration of the property interest taken—from 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." Ibid.; see Danforth v. United
States, 308 U.S. 271, 284, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939).

75

The constitutional rule I propose requires that, once a court finds a police
power regulation has effected a "taking," the government entity must pay just
compensation for the period commencing on the date the regulation first
effected the "taking," and ending on the date the government entity chooses to
rescind or otherwise amend the regulation.24 Ordinary principles determining
the proper measure of just compensation, regularly applied in cases of
permanent and temporary "takings" involving formal condemnation
proceedings, occupations, and physical invasions, should provide guidance to
the courts in the award of compensation for a regulatory "taking." As a starting
point, the value of the property taken may be ascertained as of the date of the
"taking." United States v. Clarke, 445 U.S., at 258, 100 S.Ct., at 1130; Almota
Farmers Elevator & Warehouse Co. v. United States, supra, at 474, 93 S.Ct., at
794; United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed.
336 (1943); Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78
L.Ed. 1236 (1934). The government must inform the court of its intentions visa-vis the regulation with sufficient clarity to guarantee a correct assessment of
the just compensation award. Should the government decide immediately to
revoke or otherwise amend the regulation, it would be liable for payment of
compensation only for the interim during which the regulation effected a
"taking."25 Rules of valuation already developed for temporary "takings" may
be particularly useful to the courts in their quest for assessing the proper
measure of monetary relief in cases of revocation or amendment, see generally
Kimball Laundry Co. v. United States, supra; United States v. Petty Motor Co.,
supra; United States v. General Motors Corp., supra, although additional rules
may need to be developed, see Kimball Laundry Co. v. United States, supra, at
21-22, 69 S.Ct., at 1445 (Rutledge, J., concurring); United States v. Miller,
supra, at 373-374, 63 S.Ct., at 279, 87 L.Ed. 336. Alternatively the government
may choose formally to condemn the property, or otherwise to continue the
offending regulation: in either case the action must be sustained by proper
measures of just compensation. See generally United States v. Fuller, 409 U.S.
488, 490-492, 93 S.Ct. 801, 803, 35 L.Ed.2d 16 (1973); United States ex rel.
TVA v. Powelson, 319 U.S. 266, 281-285, 63 S.Ct. 1047, 1055, 87 L.Ed. 1390
(1943).

76

It should be noted that the Constitution does not embody any specific
procedure or form of remedy that the States must adopt: "The Fifth Amendment
expresses a principle of fairness and not a technical rule of procedure
enshrining old or new niceties regarding 'causes of action'—when they are
born, whether they proliferate, and when they die." United States v. Dickinson,
331 U.S., at 748, 67 S.Ct., at 1384. Cf. United States v. Memphis Cotton Oil
Co., 288 U.S. 62, 67-69, 53 S.Ct. 278, 280, 77 L.Ed. 619 (1933). The States
should be free to experiment in the implementation of this rule, provided that
their chosen procedures and remedies comport with the fundamental
constitutional command. See generally Hill, The Bill of Rights and the
Supervisory Power, 69 Colum.L.Rev. 181, 191-193 (1969). The only
constitutional requirement is that the landowner must be able meaningfully to
challenge a regulation that allegedly effects a "taking," and recover just
compensation if it does so. He may not be forced to resort to piecemeal
litigation or otherwise unfair procedures in order to receive his due. See United
States v. Dickinson, supra, at 749, 67 S.Ct., at 1385.
V

77

In Agins v. City of Tiburon, 24 Cal.3d, at 275, 157 Cal.Rptr., at 376, 598 P.2d,
at 29, the California Supreme Court was "persuaded by various policy
considerations to the view that inverse condemnation is an inappropriate and
undesirable remedy in cases in which unconstitutional regulation is alleged." In
particular, the court cited "the need for preserving a degree of freedom in landuse planning function, and the inhibiting financial force which inheres in the
inverse condemnation remedy," in reaching its conclusion. Id., at 276, 157
Cal.Rptr., at 377, 598 P.2d at 31. But the applicability of express constitutional
guarantees is not a matter to be determined on the basis of policy judgments
made by the legislative, executive, or judicial branches.26 Nor can the
vindication of those rights depend on the expense in doing so. See Watson v.
Memphis, 373 U.S. 526, 537-538, 83 S.Ct. 1314, 1320, 10 L.Ed.2d 529 (1963).

78

Because I believe that the Just Compensation Clause requires the constitutional
rule outlined supra, I would vacate the judgment of the California Court of
Appeal, Fourth District, and remand for further proceedings not inconsistent
with this opinion.27

1

"[N]or shall private property be taken for public use, without just
compensation."
The Fifth Amendment's prohibition applies against the States through the
Fourteenth Amendment. Chicago, B., & Q. R. Co. v. Chicago, 166 U.S.
226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897); Webb's Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66
L.Ed.2d 358 (1980).

2

Appellant claims that only the 214 acres have been taken by the city of
San Diego. Throughout this opinion, "the property" and any similar phrase
refers to this smaller portion of the 412 acres owned by appellant.

3

Apparently other portions of the 412-acre parcel have been developed to
some extent, and some parts sold.

4

5

6

7

The city had classified 116 acres as M-1A (industrial) and 112 acres as A1-1 (agricultural). The latter classification was reserved for "undeveloped
areas not yet ready for urbanization and awaiting development, those areas
where agricultural usage may be reasonably expected to persist or areas
designated as open space in the general plan." San Diego Ordinance No.
8706 (New Series) § 101.0404 (1962), reproduced in Brief for Appellees
C-1. A small amount of the land was zoned for residential development.
(These figures total more than 214 acres. When the California courts
described the zoning of the property, they did not distinguish between the
214 acres that allegedly were taken and 15 other acres that the trial court
found had been damaged by the severance.)
The portion of the plan that discussed the Los Penasquitos Lagoon area
stated: "[T]he San Diego Gas & Electric Company has a large (240 acre)
ownership which it intends to utilize as the location of a nuclear power
plant sometime in the 1980's. . . . [S]uch a facility, if sensitively designed
and sited, could be compatible with open space preservation in this
subsystem; however, a number of approvals and clearances must be
obtained prior to the plant's construction becoming a reality." App. 160.
Appellant abandoned its plan to construct a nuclear power plant after the
discovery of an off-shore fault that rendered the project unfeasible. Tr. 73.
Its witnesses acknowledged that only about 150 acres were usable as an
industrial park, and that 1.25 million cubic yards of fill would be needed to
undertake such a development. Id., at 711, 905.
The retransfer order cited Agins as 23 Cal.3d 605. App. to Juris. Statement
E-1. The court's opinion, however, later was modified and reprinted with
the citations noted in the text.

8

Contrary to the dissent's argument, the California Supreme Court's Agins
decision did not hold that a zoning ordinance never could be a "taking"
and thus never could violate the Just Compensation Clause. It simply
limited the remedy available for any such violation to nonmonetary relief.
Immediately following the passage quoted by the dissent, post, at 640641, that court stated:
"This conclusion is supported by a leading authority (1 Nichols, Eminent
Domain (3d rev. ed. 1978) Nature and Orgin of Power, § 1.42(1), pp. 1116—1-121), who expresses his view in this manner: 'Not only is an
actual physical appropriation, under an attempted exercise of the police
power, in practical effect an exercise of the power of eminent domain, but
if regulative legislation is so unreasonable or arbitrary, as virtually to
deprive a person of the complete use and enjoyment of his property, it
comes within the purview of the law of eminent domain. Such legislation
is an invalid exercise of the police power since it is clearly unreasonable
and arbitrary. It is invalid as an exercise of the power of eminent domain
since no provision is made for compensation.' " 24 Cal.3d, at 272, 157
Cal.Rptr. at 375, 598 P.2d, at 28. (Emphasis added by the California
court). See also id., at 273-274, 157 Cal.Rptr., at 375, 598 P.2d, at 29:
"While acknowledging the power of government to preserve and improve
the quality of life for its citizens through the regulation of the use of
private land, we cannot countenance the service of this legitimate need
through the uncompensated destruction of private property rights." And
see id., at 276, 157 Cal.Rptr., at 377, 598 P.2d, at 30:
" 'Determining that a particular land-use control requires compensation is
an appropriate function of the judiciary. . . . But it seems a usurpation of
legislative power for a court to force compensation,' " quoting Note,
Inverse Condemnation: Its Availability in Challenging the Validity of a
Zoning Ordinance, 26 Stan.L.Rev. 1439, 1451 (1974).
When Agins was appealed here, we unanimously agreed that "[t]he 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." 447 U.S., at 263, 100 S.Ct., at
2142. We believe, therefore, that it is the dissent that "fundamentally
mischaracterizes," post, at 637, the California ruling.

9

This Court's affirmance of the California court's judgment in Agins was on
the ground that there was no taking. 447 U.S., at 263, 100 S.Ct., at 2142.

10

11

Title 28 U.S.C.A. § 1257 grants jurisdiction to this Court to review only "
[f]inal judgments or degrees rendered by the highest court of a State in
which a decision could be had." Because the finality requirement of §
1257 applies to this Court's review of state-court judgments both by appeal
and by certiorari, we do not address the city's contention that, inasmuch as
the Court of Appeal did not uphold any statute against a constitutional
challenge, this is not a proper appeal under § 1257(2).
We recognize that this is inconsistent with the Court of Appeal's first
ruling in this case, but, as has been noted, that decision was deprived of all
effect by the Supreme Court's order granting a hearing.
The dissent's statement that the Court of Appeal "concluded as a matter of
law that no Fifth Amendment 'taking' had occurred," post, at 645, is
premised upon its misreading of the Agins opinion. See n. 8, supra. The
Court of Appeal simply refused to award appellant the only remedy held to
be available for a "taking" because there were disputed factual issues to be
resolved.

12

Although its initial opinion affirmed the trial court's finding that any
application by appellant to develop the property would have been rejected,
it is clear that the Court of Appeal reconsidered that finding in the light of
Agins. In Agins, the California Supreme Court held that landowners who
had not "made application to use or improve their property" following the
passage of a zoning ordinance and had not "sought or received any
definitive statement as to how many dwelling units they could build on
their land," 24 Cal.3d, at 271, 157 Cal.Rptr., at 374, 598 P.2d at 27, had
not shown that the ordinance took their property without just
compensation, since it permitted up to five residences to be built on the
plaintiffs' property. We agreed that no violation of the Fifth and
Fourteenth Amendments had been shown, since the landowners were "free
to pursue their reasonable investment, expectations by submitting a
development plan to local officials." 447 U.S., at 262, 100 S.Ct., at 2142.
In this case, city witnesses testified that some development of appellant's
property would be consistent with the open-space plan. App. 134-135,
140, 149-150. Indeed, the plan holds out the possibility that a nuclear
power plant could be built on the site, see n. 5, supra, and the witnesses
testified that other forms of industrial development might be permitted as
well. App. 140, 149-150. The trial court's opinion does not explain why it
concluded in light of this evidence that any attempt to obtain the city's
permission for development of the property would be futile.
When the Court of Appeal reconsidered its decision in light of Agins, we
believe that its reference to "disputed fact issues not covered by the trial
court in its findings," App. 66, referred to this controversy. Its opinion
states that damages would be unavailable "[e]ven assuming no use is
acceptable to the City." Ibid. The Court of Appeal declined to award
mandamus or declaratory relief because it could not make this
"assumption" in light of the factual disputes.

13

Appellant's counsel shares this view:
"QUESTION: Mr. Goebel, your second and third cause of action in your
complaint were petitions for mandate and the relief prayed in paragraph 3
of your complaint was that the Court order the City of San Diego to set
aside the rezoning and to set aside the adoption of the open space element
of its general plan. As I understand it, on remand, the trial court may grant
that relief, theoretically.
"MR. GOEBEL: That's correct, Your Honor." Tr. of Oral Arg. 18.

1

The city's plan defined "open space" as "any urban land or water surface
that is essentially open or natural in character, and which has appreciable
utility for park and recreation purposes, conservation of land, water or
other natural resources or historic or scenic purposes." App. 52, n. 3.

2

The phrase "inverse condemnation" generally describes a cause of action
against a government defendant in which a landowner may recover just
compensation for a "taking" of his property under the Fifth Amendment,
even though formal condemnation proceedings in exercise of the
sovereign's power of eminent domain have not been instituted by the
government entity. Agins v. City of Tiburon, 447 U.S. 255, 258, n. 2, 100
S.Ct. 2138, 2140, n. 2, 65 L.Ed.2d 106 (1980); United States v. Clarke,
445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980). See, e.
g., Cal.Civ.Proc.Code Ann. § 1245.260 (West Supp.1981). In the typical
condemnation proceeding, the government brings a judicial or
administrative action against the property owner to "take" the fee simple
or an interest in his property; the judicial or administrative body enters a
decree of condemnation and just compensation is awarded. See ibid. See
generally 6 J. Sackman, Nichols' Law of Eminent Domain § 24.1 (rev. 3d
ed. 1980). In an "inverse condemnation" action, the condemnation is
"inverse" because it is the landowner, not the government entity, who
institutes the proceeding.
"Eminent domain" is the "power of the sovereign to take property for
public use without the owner's consent." Id., § 1.11, at 1-7. Formal
proceedings initiated by the government are loosely referred to as either
"eminent domain" or "condemnation" proceedings. See Agins v. City of
Tiburon, supra, at 258, n. 2, 100 S.Ct., at 2140, n. 2.

3

One law review article, cited twice by the California Supreme Court in
Agins, typifies this mode of analysis:
"[T]raditionally eminent domain and the police power have been treated as
disjunctive. . . . The Constitution requires that just compensation be paid
to landowners whose property has been condemned or taken by a
government exercising its eminent domain power; if property is taken and
no compensation awarded, the landowner is entitled to bring a so-called
inverse condemnation action to compel payment. In contrast, under the
police power constitutional requirements relate to the reasonableness of
the relation between the means used and the ends sought; a landowner
affected by an unreasonable regulation is entitled to bring an action
challenging its validity." Note, Eldridge v. City of Palo Alto: Aberration or
New Direction in Land Use Law?, 28 Hastings L.J. 1569, 1570 (1977)
(footnotes omitted).

4

It is not merely linguistic coincidence that the California Supreme Court in
Agins never analyzed the Tiburon zoning ordinance to determine whether
a Fifth Amendment "taking" without just compensation had occurred.
Instead, the court noted that "a zoning ordinance may be unconstitutional
and subject to invalidation only when its effect is to deprive the landowner
of substantially all reasonable use of his property," and that "[t]he
ordinance before us had no such effect." 24 Cal.3d, at 277, 157 Cal.Rptr.,
at 378, 598 P.2d, at 31, aff'd, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d
106 (1980) (emphasis added). Throughout the Agins opinion as well as the
Court of Appeal decision below are references to actions which "deprive"
the landowner of property use, indicating that the California courts were
proceeding under the Due Process Clauses of the Fifth and Fourteenth
Amendments, and not the Just Compensation Clause. Id., at 273, 277, 157
Cal.Rptr. 372, 378, 598 P.2d, at 28, 31; Joint App. 66. Indeed the
California courts are not alone in concluding that a government's exercise
of its regulatory police powers can never effect a "taking." Five years ago,
the Court of Appeals of New York reached the same conclusion. See Fred
F. French Investing Co. v. City of New York, 39 N.Y.2d 587, 594-596, 385
N.Y.S.2d 5, 8-9, 350 N.E.2d 381, 384-386, cert. denied and appeal dism'd,
429 U.S. 990, 97 S.Ct. 515, 50 L.Ed.2d 602 (1976). This Court described a
subsequent New York Court of Appeals decision on review here as
"summarily reject[ing] any claim that the [New York City] Landmarks
Law had 'taken' property without 'just compensation,' . . . indicating that
there could be no 'taking' since the law had not transferred control of the
property to the city, but only restricted appellants' exploitation of it. In that
circumstance, the Court of Appeals held that appellants' attack on the law
could prevail only if the law deprived appellants of their property in
violation of the Due Process Clause of the Fourteenth Amendment." Penn
Central Transp. Co. v. New York City, 438 U.S. 104, 120-121, 98 S.Ct.
2646, 2657, 57 L.Ed.2d 631 (1978).
See Marcus, The Grand Slam Grand Central Terminal Decision: A Euclid
for Landmarks, Favorable Notice for TDR and A Resolution of the
Regulatory/Taking Impasse, 7 Ecology Law Quarterly 731, 749, n. 97
(1978). See generally Comment, Balancing Private Loss Against Public
Gain to Test for a Violation of Due Process or a Taking without Just
Compensation, 54 Wash.L.Rev. 315, 319-327 (1979).

5

In so ruling, the California Supreme Court expressly disapproved Eldridge
v. City of Palo Alto, 57 Cal.App.3d 613, 621, 129 Cal.Rptr. 575, 579
(1976), a Court of Appeal decision holding that "a valid zoning ordinance
may nevertheless operate so oppressively as to amount to a taking, thus
giving an aggrieved landowner a right to damages in inverse
condemnation."

6

Appellees agreed with this interpretation at oral argument:
"QUESTION: Well, suppose the California Supreme Court or all the
courts in California declare the zoning statute unconstitutional as applied
to this piece of property, that the City has unconstitutionally interfered
with the use of this property.
"MR. SUMPTION: Yes, Your Honor.
"QUESTION: Now, has the California Supreme Court or the Court of
Appeal precluded damages in that situation?
"MR. SUMPTION: Under those facts, without any actual use, without the
other factors, denial of access or any direct and special interference with
the landowner's attempt to use the property, I think that's a correct
assessment, that the California Supreme Court would say, no, your remedy
is to set aside the regulations.
"QUESTION: Well, they get set aside but meanwhile the landowner has
not been able to use it for the purpose he wanted. The zoning ordinance
has effectively precluded his use of the property and the Supreme Court
has said so. No damages?
"MR. SUMPTION: No damages, Your Honor.
"QUESTION: You say that's police power, not Fifth Amendment taking?
"MR. SUMPTION: In California, that's the rule—" Tr. of Oral Arg. 54-55
(emphasis added).
This understanding is likewise shared by appellant and amici. See, e. g.,
Brief for Appellant 17, 31, 36; Brief for National Association of Home
Builders and California Building Industry as Amicis Curiae 5, 7.

7

The Court concludes from the last paragraph of the Court of Appeal's
opinion that "appellant is free to pursue its quest for relief in the Superior
Court. The logical course of action for an appellate court that finds
unresolved factual disputes in the record is to remand the case for the
resolution of those disputes." Ante, at 632.
It is true that, under California law, an unqualified reversal generally
operates to remand the cause for a new trial on all remaining issues.
McDonough Power Equipment Co. v. Superior Court, 8 Cal.3d 527, 532,
105 Cal.Rptr. 330, 333, 503 P.2d 1338, 1341 (1972); De Hart v. Allen, 26
Cal.2d 829, 833, 161 P.2d 453, 455-456 (1945); 5 Cal.Jur. 3d, Appellate
Review § 587, pp. 303-304 (1973); see Gospel Army v. Los Angeles, 331
U.S. 543, 546, 67 S.Ct. 1428, 1429, 91 L.Ed. 1662 (1947). However, a
reviewing court may qualify its reversal and its intent must be divined
from its opinion as a whole. Stromer v. Browning, 268 Cal.App.2d 513,
518-519, 74 Cal.Rptr. 155, 158 (1968); 5 Cal.Jur. 3d, supra, § 588, at 304.
Here, the Court of Appeal suggested that, if appellee elected to retry the
case, "disputed fact issues not covered by the trial court in its findings and
conclusions" could be "dealt with anew." App. 66 (emphasis added). In
the original "Findings of Fact and Conclusions of Law," the trial court
unequivocally found a Fifth Amendment "taking" without just
compensation:
"The actions of defendant City against plaintiff's property were motivated
to achieve a public purpose, namely, preservation of open space, without
payment of just compensation and were so burdensome and oppressive as
to deprive plaintiff of any practical, beneficial or economic use of the
property designated as open space, and, therefore, taken as a whole,
constitute a taking of the portion of plaintiff's property designated as open
space without due process of law and just compensation within the
meaning of the California and United States constitutions. . . ." Id., at 4243 (emphasis added).
By limiting any possible retrial to "disputed fact issues not covered by the
trial court in its findings and conclusions," the Court of Appeal plainly
indicated that the Fifth Amendment "taking" issue had been finally
resolved. This is perfectly consistent, then, with the Court of Appeal's
holding that there is no Fifth Amendment "taking" when excessive use of
the police power is proved. Therefore, the Court's belief that the "disputed
factual issues" involve appellant's failure to apply for a permit ante, at
631, n. 11, is beside the point, since under no set of factual circumstances
may the court find a Fifth Amendment "taking."

8

The Court of Appeal's first opinion unequivocally affirmed the Superior
Court's finding of a "taking" on the facts of this case. App. 49-50, 60. It is
no doubt true that the first opinion was deprived of all legal effect under
California law once the California Supreme Court granted the city's
petition for a hearing. Knouse v. Nimocks, 8 Cal.2d 482, 483-484, 66 P.2d
438, 438 (1937). Nevertheless, under this Court's view that the second
Court of Appeal's opinion left open the "taking" question, this Court must
admit, as it does, that the second opinion is inconsistent with the finding of
a "taking" in the first. Ante, at 631, n. 11. Under my reading, the second is
easily reconcilable with the first: because the Court of Appeal was
obligated by the terms of the California Supreme Court's transfer order to
hold that no regulatory action could effect a "taking," it was forced in its
second opinion to abandon its original agreement with the Superior Court's
finding of a "taking."

9

In his concurring opinion, my Brother REHNQUIST, who dissented in
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d
328 (1975), writes:
"I am not sure under how many of the four exceptions of Cox Justice
BRENNAN may view this case as falling, but it seems to me that this case
illustrates the problems which arise from a less than literal reading of the
language 'final judgment or decree.' " Ante, at 635-636.
Then, he assumes that I agree with the Court that further proceedings will
occur on remand to the Superior Court, and concludes that this appeal is
therefore not final within the literal language of 28 U.S.C. § 1257, even if
it may be treated as final under Cox. Ante, at 636.
With all respect, my Brother REHNQUIST misreads my position. I view
the judgment as final within the literal meaning of § 1257, and therefore
do not find it necessary to rely on any "exception" to the finality rule.
Appellant alleged and proved a "taking" of its property without just
compensation under the Just Compensation Clause of the Fifth
Amendment. On review, the California Court of Appeal reversed, holding
as a matter of federal law that there was no "taking." Since that time,
appellant has continued to press its federal just compensation claim in a
petition for rehearing before the Court of Appeal, a petition for hearing
before the California Supreme Court, and an appeal to this Court. The
Court of Appeal did not direct further proceedings in the Superior Court on
appellant's claim. What the Court of Appeal indicated was that appellant
was not precluded from "elect[ing] to retry the case", App. 66, on an
alternative constitutional theory not based on the Just Compensation
Clause. In other words, the Court of Appeal refused to recognize an
alleged and proved constitutional violation and proposed that appellant try
another and different constitutional theory. But obviously the judgment is
final as to the rejected constitutional theory under even the strictest
reading of § 1257. I can see no possible reason for refusing to decide
appellant's claim solely on the basis that the Court of Appeal proposed its
own constitutional theory and strategy for retrying the case.
In sum, the accurate statement of my view is that appellant has received a
final judgment. That judgment is "subject to no further review or
correction in any other state tribunal; it [is] final as an effective
determination of the litigation and not of merely interlocutory or
intermediate steps therein. It [is] the final word of a final court." Market
Street R. Co. v. Railroad Comm'n, 324 U.S. 548, 551, 65 S.Ct. 770, 773,
89 L.Ed. 1171 (1945).

10

11

12

Appellees also argue that we may not exercise our appellate jurisdiction
under 28 U.S.C. § 1257(2) because appellant has not drawn in question the
validity of a statute. Brief for Appellees 1-3. Even if I were to agree with
appellees' contentions, I would treat the jurisdictional statement as a
petition for writ of certiorari, and grant the petition. 28 U.S.C. §§ 1257(3),
2103.
This Court failed to reach this question in last Term's Agins v. City of
Tiburon. In that case, as an alternative holding, the California Supreme
Court had found on the facts of the case that the Tiburon ordinance "did
not unconstitutionally interfere with plaintiffs' entire use of the land or
impermissibly decrease its value." 24 Cal.3d, at 277, 157 Cal.Rptr., at 378,
598 P.2d, at 31. This Court affirmed on that ground, thereby not reaching
the broader ground that constitutes the sole basis for the opinion of the
Court of Appeal in the instant case. 447 U.S., at 262-263, 100 S.Ct., at
2142.
The question presented in appellant's jurisdictional statement states in
pertinent part:
"Can a state court with impunity deny an aggrieved property owner its
constitutionally mandated remedy of just compensation when a local
government entity has (a) imposed arbitrary, excessive, and
unconstitutional land use regulations; (b) commenced, but later abandoned
direct acquisitive efforts under its power of eminent domain when its
public purpose was satisfied by the restraints of the purported regulations;
and (c) through a continuing course of conduct acted so as to deprive the
property owner of all practical, beneficial or economic use of its property;
and the property owner has so established as a matter of fact after full trial
of the issues?" Juris. Statement 4-5.

13
14

The Court of Appeal below rendered its decision almost one year before
this Court's decision in Agins v. City of Tiburon, supra.
One interpretation of the Pennsylvania Coal opinion insists that the word
"taking" was used "metaphorically," and that the "gravamen of the
constitutional challenge to the regulatory measure was that it was an
invalid exercise of the police power under the due process clause, and the
[case was] decided under that rubric." Fred F. French Investing Co. v.
City of New York, 39 N.Y.2d, at 594, 385 N.Y.S.2d, at 9, 350 N.E.2d, at
385; see also Brief for Appellees 37-38. In addition to tampering with the
express language of the opinion, this view ignores the coal company's
repeated claim before the Court that the Pennsylvania statute took its
property without just compensation. Brief for Pennsylvania Coal
Company, at 7-8, 16, 19-20, 21, 24, 28-33; Brief for the Mahons, at 73.

15

More recent Supreme Court cases have emphasized this aspect of "taking"
analysis, commenting that the Court has been unable to develop any "set
formula to determine where regulation ends and taking begins," Goldblatt
v. Town of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d
130 (1962), and that "[it] calls as much for the exercise of judgment as for
the application of logic," Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318,
326, 62 L.Ed.2d 210 (1979). See Penn Central Transp. Co. v. New York
City, 438 U.S., at 124, 98 S.Ct., at 2659 ("ad hoc, factual inquiries");
United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct.
1097, 1104, 2 L.Ed.2d 1228 (1958) ("question properly turning upon the
particular circumstances of each case").
One distinguished commentator has characterized the attempt to
differentiate "regulation" from "taking" as "the most haunting
jurisprudential problem in the field of contemporary land-use law . . . one
that may be the lawyer's equivalent of the physicist's hunt for the quark."
C. Haar, Land-Use Planning 766 (3d ed. 1976). See generally id., at 766777; Berger, A Policy Analysis of the Taking Problem, 49 N.Y.U.L.Rev.
165 (1974); Michelman, Property, Utility, and Fairness: Comments on the
Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165
(1967); Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964).
Another has described a 30-year series of Court opinions resulting from
this case-by-case approach as a "crazy-quilt pattern." Dunham, Griggs v.
Allegheny County in Perspective: Thirty Years of Supreme Court
Expropriation Law, 1962 S.Ct.Rev. 63.

16

Justice Brandeis, in dissent, argued the absolute position that a "restriction
imposed to protect the public health, safety or morals from dangers
threatened is not a taking." 260 U.S., at 417, 43 S.Ct., at 161. In partial
reliance on Justice Brandeis' dissent, one report urges that the Court
overrule the Pennsylvania Coal case and hold that "a regulation of the use
of land, if reasonably related to a valid public purpose, can never
constitute a taking." F. Bosselman, D. Callies, & J. Banta, The Taking
Issue 238-255 (1973).

17

The California Supreme Court, in its opinion in Agins v. City of Tiburon,
24 Cal.3d, at 274, 157 Cal.Rptr., at 376, 598 P.2d, at 29, interpreted
Justice Holmes' use of the word "taking" to "indicate the limit by which
the acknowledged social goal of land control could be achieved by
regulation rather than by eminent domain." (Emphasis added.) I find such
a reading unpersuasive. The Court specifically indicated that a "regulation
[that] goes too far . . . will be recognized as a taking," and that this
determination is "a question of degree." Pennsylvania Coal Co. v. Mahon,
supra, 260 U.S., at 415-416, 43 S.Ct., at 160 (emphasis added). Clearly,
then, the Court contemplated that a regulation could cross the boundary
surrounding valid police power exercise and become a Fifth Amendment
"taking."
The California court further argued that the Court in Pennsylvania Coal
"did not attempt . . . to transmute the illegal governmental infringement
into an exercise of eminent domain and the possibility of compensation
was not even considered." Agins v. City of Tiburon, supra, at 274, 157
Cal.Rptr., at 376, 598 P.2d, at 29. This overlooks the factual posture in
Pennsylvania Coal, where the homeowner, not the coal company, brought
an injunction action to prevent the company "from mining under their
property in such a way as to remove the supports and cause a subsidence
of the surface and of their house." Pennsylvania Coal Co. v. Mahon, supra,
at 412, 43 S.Ct., at 159. Because no one asked for an award of just
compensation, there was no reason for the Court to consider it. The
company only sought reversal of the Pennsylvania Supreme Court's decree
that enjoined it from mining coal, and this Court granted that request.

18

19

In the instant case, for example, appellant contended that the city's actions
"denied in all practical effect any possible beneficial or economical use of
the subject property." Complaint ¶ 15, App. 11. Although the Court of
Appeal's first opinion has no legal effect, see n. 8, supra, the court did
observe that the city's objective was "to have the property remain unused,
undisturbed and in its natural state so open space and scenic vistas may be
preserved. In this sense the property is being 'used' by the public. . . ."
App. 60.
Under this rule, a government entity is entitled to amend the offending
regulation so that it no longer effects a "taking." It may also choose
formally to condemn the property.

20

21

Amicus suggests that the California Supreme Court has not conclusively
decided the issue whether interim damages might be awarded to
compensate a landowner for economic loss sustained prior to invalidation
of the zoning ordinance. Brief for United States as Amicus Curiae 23, and
n. 24. But since the California courts fail to concede that a regulation can
effect a "taking," any award of interim damages would not be justified or
determined, as constitutionally required, under the Just Compensation
Clause.
Amici suggest that the Court's awards of just compensation in cases
involving the United States were premised either on a "theory of implied
promise to pay . . . or [on] congressional authorization [to pay] under the
Tucker Act, 28 U.S.C. 1346(a)." Brief for United States as Amicus Curiae
27; see Brief for the National Trust for Historic Preservation et al. as
Amici Curiae 7-8. This suggestion mischaracterizes the import of our
cases. As the Court has noted:
"But whether the theory . . . be that there was a taking under the Fifth
Amendment, and that therefore the Tucker Act may be invoked because it
is a claim founded upon the Constitution, or that there was an implied
promise by the Government to pay for it, is immaterial. In either event, the
claim traces back to the prohibition of the Fifth Amendment, 'nor shall
private property be taken for public use, without just compensation.' The
Constitution is 'intended to preserve practical and substantial rights, not to
maintain theories.' " United States v. Dickinson, 331 U.S. 745, 748, 67
S.Ct. 1382, 1384, 91 L.Ed. 1789 (1947).

22

The instant litigation is a good case in point. The trial court, on April 9,
1976, found that the city's actions effected a "taking" of appellant's
property on June 19, 1973. If true, then appellant has been deprived of all
beneficial use of its property in violation of the Just Compensation Clause
for the past seven years.
Invalidation hardly prevents enactment of subsequent unconstitutional
regulations by the government entity. At the 1974 annual conference of
the National Institute of Municipal Law Officers in California, a California
City Attorney gave fellow City Attorneys the following advice:
"IF ALL ELSE FAILS, MERELY AMEND THE REGULATION AND
START OVER AGAIN.
"If legal preventive maintenance does not work, and you still receive a
claim attacking the land use regulation, or if you try the case and lose,
don't worry about it. All is not lost. One of the extra 'goodies' contained in
the recent [California] Supreme Court case of Selby v. City of San
Buenaventura, 10 C.3d 110, [109 Cal.Rptr. 799, 514 P.2d 111] appears to
allow the City to change the regulation in question, even after trial and
judgment, make it more reasonable, more restrictive, or whatever, and
everybody starts over again.
* * * * *
"See how easy it is to be a City Attorney. Sometimes you can lose the
battle and still win the war. Good luck." Longtin, Avoiding and Defending
Constitutional Attacks on Land Use Regulations (Including Inverse
Condemnation), in 38B NIMLO Municipal Law Review 192-193 (1975)
(emphasis in original).

23

24

A different case may arise where a police power regulation is not enacted
in furtherance of the public health, safety, morals, or general welfare so
that there may be no "public use." Although the government entity may
not be forced to pay just compensation under the Fifth Amendment, the
landowner may nevertheless have a damages cause of action under 42
U.S.C. § 1983 for a Fourteenth Amendment due process violation.
Contrary to the suggestion of amici, see, e. g., Brief for the National Trust
for Historic Preservation et al. as Amici Curiae 13-16, this is not a case
involving implication of a damages remedy—The words of the Just
Compensation Clause are express.

25

26

27

See generally D. Hagman & Misczynski, Windfalls for Wipeouts 296-297
(1978); Bosselman, The Third Alternative in Zoning Litigation, 17 Zoning
Digest 113, 114-119 (1965). The general notion of compensating
landowners for regulations which go too far has received much attention in
land-use planning literature. See, e. g., Costonis, "Fair" Compensation and
the Accommodation Power: Antidotes for the Taking Impasse in Land Use
Controversies, 75 Colum.L.Rev. 1021 (1975); R. Babcock, The Zoning
Game 168-172 (1966); Krasnowiecki & Paul, The Preservation of Open
Space in Metropolitan Areas, 110 U.Pa.L.Rev. 179, 198-239 (1961). See
also American Law Institute, A Model Land Development Code §§ 5-303,
5-304, pp. 202-207 (1975); Town and Country Planning Act, 1947, 10 &
11 Geo. 6, ch. 51, § 19.
Even if I were to concede a role for policy considerations, I am not so sure
that they would militate against requiring payment of just compensation.
Indeed, land-use planning commentators have suggested that the threat of
financial liability for unconstitutional police power regulations would help
to produce a more rational basis of decisionmaking that weighs the costs
of restrictions against their benefits. Dunham, From Rural Enclosure to
Re-Enclosure of Urban Land, 35 N.Y.U.L.Rev. 1238, 1253-1254 (1960).
Such liability might also encourage municipalities to err on the
constitutional side of police power regulations, and to develop internal
rules and operating procedures to minimize overzealous regulatory
attempts. Cf. Owen v. City of Independence, 445 U.S. 622, 651-652, 100
S.Ct. 1398, 1415, 63 L.Ed.2d 673 (1980). After all, a policeman must
know the Constitution, then why not a planner? In any event, one may
wonder as an empirical matter whether the threat of just compensation will
greatly impede the efforts of planners. Cf. id., at 656, 100 S.Ct., at 1418.
Because the California Court of Appeal, Fourth District, followed the
instructions of the California Supreme Court and held that the city's
regulation, however arbitrary or excessive, could not effect a "taking," the
Court of Appeal did not address the issue whether San Diego's course of
conduct in fact effected a "taking" of appellant's property. I would not
reach that issue here, but leave it open for the Court of Appeal on remand
initially to decide that question on its review of the Superior Court's
judgment.