First English Evangelical Lutheran Church v. Los Angeles County

U.S. Supreme Court Lutheran Church v. County of Los
Angeles, 482
U.S. 304 (1987) First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles,
California No. 85-1199 Argued January 14,
1987 Decided June 9, 1987 482
U.S. 304 APPEAL FROM THE COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE
DISTRICT Syllabus In 1957, appellant church purchased land on which it operated a
campground, known as "Lutherglen," as a retreat center and a
recreational area for handicapped children. The land is located in
a canyon along the banks of a creek that is the natural drainage
channel for a watershed area. In 1978, a flood destroyed
Lutherglen's buildings. In response to the flood, appellee Los
Angeles County, in 1979, adopted an interim ordinance prohibiting
the construction or reconstruction of any building or structure in
an interim flood protection area that included the land on which
Lutherglen had stood. Shortly after the ordinance was adopted,
appellant filed suit in a California court, alleging, inter
alia, that the ordinance denied appellant all use of
Lutherglen, and seeking to recover damages in inverse condemnation
for such loss of use. The court granted a motion to strike the
allegation, basing its ruling on Agins v.
Tiburon, 24 Cal. 3d
266 , 598 P.2d 25, aff'd on other grounds, 447 U.
S. 255 , in which the California Supreme Court held that
a landowner may not maintain an inverse condemnation suit based
upon a "regulatory" taking, and that compensation is not required
until the challenged regulation or ordinance has been held
excessive in an action for declaratory relief or a writ of mandamus
and the government has nevertheless decided to continue the
regulation in effect. Because appellant alleged a regulatory taking
and sought only damages, the trial court deemed the allegation that
the ordinance denied all use of Lutherglen to be irrelevant. The
California Court of Appeal affirmed. Held: 1. The claim that the Agins case improperly held that
the Just Compensation Clause of the Fifth Amendment does not
require compensation as a remedy for "temporary" regulatory takings
-- those regulatory takings which are ultimately invalidated by the
courts -- is properly presented in this case. In earlier cases,
this Court was unable to reach the question because either the
regulations considered to be in issue by the state courts did not
effect a taking or the factual disputes yet to be resolved by state
authorities might still lead to the conclusion that no taking had
occurred. Here, the California Court of Appeal assumed Page 482 U. S. 305 that the complaint sought damages for the uncompensated "taking"
of all use of Lutherglen by the ordinance, and relied on the
California Supreme Court's Agins decision for the
conclusion that the remedy for the taking was limited to
nonmonetary relief, thus isolating the remedial question for this
Court's consideration. MacDonald, Sommer & Frates v. Yolo
County, 477 U. S. 340 ; Williamson County Regional Planning Comm'n v. Hamilton
Bank, 473 U. S. 172 ; San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 ; and Agins, all distinguished. Pp. 482 U. S.
311 -313.

															2. Under the Just Compensation Clause, where the government has
"taken" property by a land use regulation, the landowner may
recover damages for the time before it is finally determined that
the regulation constitutes a "taking" of his property. The Clause
is designed not to limit the governmental interference with
property rights per se, but rather to secure compensation in the event of otherwise proper interference
amounting to a taking. A landowner is entitled to bring an action
in inverse condemnation as a result of the self-executing character
of the constitutional provision with respect to compensation. While
the typical taking occurs when the government acts to condemn
property in the exercise of its power of eminent domain, the
doctrine of inverse condemnation is predicated on the proposition
that a taking may occur without such formal proceedings.
"Temporary" regulatory takings which, as here, deny a landowner all
use of his property, are not different in kind from permanent
takings for which the Constitution clearly requires compensation.
Once a court determines that a taking has occurred, the government
retains the whole range of options already available -- amendment
of the regulation, withdrawal of the invalidated regulation, or
exercise of eminent domain. But where the government's activities
have already worked a taking of all use of property, no subsequent
action by the government can relieve it of the duty to provide
compensation for the period during which the taking was effective.
Invalidation of the ordinance without payment of fair value for the
use of the property during such period would be a constitutionally
insufficient remedy. Pp. 482 U. S.
314 -322.

															Reversed and remanded.

															REHNQUIST, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, POWELL, and SCALIA, JJ., joined. STEVENS,
J., filed a dissenting opinion, in Parts I and III of which
BLACKMUN and O'CONNOR, JJ., joined, post, p. 482 U. S.
322 . Page 482 U. S. 306 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

															In this case, the California Court of Appeal held that a
landowner who claims that his property has been "taken" by a land
use regulation may not recover damages for the time before Page 482 U. S. 307 it is finally determined that the regulation constitutes a
"taking" of his property. We disagree, and conclude that, in these
circumstances, the Fifth and Fourteenth Amendments to the United
States Constitution would require compensation for that period.

															In 1957, appellant First English Evangelical Lutheran Church
purchased a 21-acre parcel of land in a canyon along the banks of
the Middle Fork of Mill Creek in the Angeles National Forest. The
Middle Fork is the natural drainage channel for a watershed area
owned by the National Forest Service. Twelve of the acres owned by
the church are flat land, and contained a dining hall, two
bunkhouses, a caretaker's lodge, an outdoor chapel, and a
footbridge across the creek. The church operated on the site a
campground, known as "Lutherglen," as a retreat center and a
recreational area for handicapped children.

															In July, 1977, a forest fire denuded the hills upstream from
Lutherglen, destroying approximately 3,860 acres of the watershed
area and creating a serious flood hazard. Such flooding occurred on
February 9 and 10, 1978, when a storm dropped 11 inches of rain in
the watershed. The runoff from the storm overflowed the banks of
the Mill Creek, flooding Lutherglen and destroying its
buildings.

															In response to the flooding of the canyon, appellee County of
Los Angeles adopted Interim Ordinance No. 11,855 in January, 1979.
The ordinance provided that

															"[a] person shall not construct, reconstruct, place or enlarge
any building or structure, any portion of which is, or will be,
located within the outer boundary lines of the interim flood
protection area located in Mill Creek Canyon. . . ."

															App. to Juris. Statement A31. The ordinance was effective
immediately, because the county determined that it was "required
for the immediate preservation of the public health and safety. . .
." Id. at A32. The interim flood protection area described
by the ordinance included the flat areas on either side of Mill
Creek on which Lutherglen had stood. Page 482 U. S. 308 The church filed a complaint in the Superior Court of California
a little more than a month after the ordinance was adopted. As
subsequently amended, the complaint alleged two claims against the
county and the Los Angeles County Flood Control District. The first
alleged that the defendants were liable under Cal.Govt.Code Ann. §
835 (West 1980) [ Footnote 1 ]
for dangerous conditions on their upstream properties that
contributed to the flooding of Lutherglen. As a part of this claim,
appellant also alleged that "Ordinance No. 11,855 denies
[appellant] all use of Lutherglen." App. 12, 49. The second claim
sought to recover from the Flood Control District in inverse
condemnation and in tort for engaging in cloud-seeding during the
storm that flooded Lutherglen. Appellant sought damages under each
count for loss of use of Lutherglen. The defendants moved to strike
the portions of the complaint alleging that the county's ordinance
denied all use of Lutherglen, on the view that the California
Supreme Court's decision in Agins v.
Tiburon, 24 Cal. 3d
266 , 598 P.2d 25 (1979), aff'd, on other grounds, 447 U. S. 255 (1980), rendered the allegation "entirely immaterial and
irrelevant[, with] no bearing upon any conceivable cause of action
herein." App. 22. See Cal.Civ.Proc.Code Ann. § 436(a)
(West Supp.1987) ("The court may . . . [s]trike out any irrelevant,
false, or improper matter inserted in any pleading").

															In Agins v. Tiburon, supra, the California Supreme
Court decided that a landowner may not maintain an inverse
condemnation suit in the courts of that State based upon a
"regulatory" taking. 24 Cal. 3d at 275-277, 598 P.2d at 29-31. In
the court's view, maintenance of such a suit would allow a
landowner to force the legislature to exercise its power of eminent
domain. Under this decision, then, compensation is not required
until the challenged regulation or ordinance has been held
excessive in an action for declaratory Page 482 U. S. 309 relief or a writ of mandamus and the government has nevertheless
decided to continue the regulation in effect. Based on this
decision, the trial court in the present case granted the motion to
strike the allegation that the church had been denied all use of
Lutherglen. It explained that

															"a careful rereading of the Agins case persuades the
Court that, when an ordinance, even a non-zoning ordinance,
deprives a person of the total use of his lands, his challenge to
the ordinance is by way of declaratory relief or possibly
mandamus."

															App. 26. Because the appellant alleged a regulatory taking and
sought only damages, the allegation that the ordinance denied all
use of Lutherglen was deemed irrelevant. [ Footnote 2 ]

															On appeal, the California Court of Appeal read the complaint as
one seeking "damages for the uncompensated taking of all use of
Lutherglen by County Ordinance No. 11,855. . . ." App. to Juris.
Statement A13-A14. It too relied on the California Supreme Court's
decision in Agins in rejecting the cause of action,
declining appellant's invitation to reevaluate Agins in
light of this Court's opinions in San Diego Gas & Electric
Co. v. San Diego, 450 U. S. 621 (1981). The court found itself obligated to follow Agins "because the United States Supreme Court has not yet ruled on
the question of whether a state may constitutionally limit the
remedy for a taking to nonmonetary relief. . . ."

															App. to Juris. Statement A16. It accordingly affirmed the trial
court's decision to strike the allegations concerning appellee's
ordinance. [ Footnote 3 ] The
California Supreme Court denied review. Page 482 U. S. 310 This appeal followed, and we noted probable jurisdiction. 478
U.S. 1003 (1986). Appellant asks us to hold that the California
Supreme Court erred in Agins v. Tibron in determining that
the Fifth Amendment, as made applicable to the States through the
Fourteenth Amendment, does not require compensation as a remedy for
"temporary" regulatory takings -- those regulatory takings which
are ultimately invalidated by the courts. [ Footnote 4 ] Four times this decade, we have considered
similar claims and have found ourselves, for one reason or another,
unable to consider the merits of the Agins rule. See
MacDonald, Sommer & Frates v. Yolo County, 477 U.
S. 340 (1986); Williamson County Regional Planning
Comm'n v. Hamilton Bank, 473 U. S. 172 (1985); San Diego Gas & Electric Co., supra; Agins v.
Tiburon, supra. For the reasons explained below, however, we
find the constitutional claim properly presented in this case, and
hold that, Page 482 U. S. 311 on these facts, the California courts have decided the
compensation question inconsistently with the requirements of the
Fifth Amendment. I Concerns with finality left us unable to reach the remedial
question in the earlier cases where we have been asked to consider
the rule of Agins. See MacDonald, Sommer & Frates,
supra, at 477 U. S. 351 (summarizing cases). In each of these cases, we concluded either
that regulations considered to be in issue by the state court did
not effect a taking, Agins v. Tiburon, 447 U.S. at 447 U. S. 263 ,
or that the factual disputes yet to be resolved by state
authorities might still lead to the conclusion that no taking had
occurred. MacDonald, Sommer & Frates, supra, at 477 U. S.
351 -353; Williamson County, supra, at 473 U. S.
188 -194; San Diego Gas & Electric Co.,
supra, at 450 U. S.
631 -632. Consideration of the remedial question in those
circumstances, we concluded, would be premature.

															The posture of the present case is quite different. Appellant's
complaint alleged that "Ordinance No. 11,855 denies [it] all use of
Lutherglen," and sought damages for this deprivation. App. 12, 49.
In affirming the decision to strike this allegation, the Court of
Appeal assumed that the complaint sought "damages for the
uncompensated taking of all use of Lutherglen by County
Ordinance No. 11,855." App. to Juris. Statement A13-A14 (emphasis
added). It relied on the California Supreme Court's Agins decision for the conclusion that "the remedy for a taking [is limited] to nonmonetary relief. . . ." App. to Juris. Statement
A16 (emphasis added). The disposition of the case on these grounds
isolates the remedial question for our consideration. The rejection
of appellant's allegations did not rest on the view that they were
false. Cf. MacDonald, Sommer & Frates, supra, at 477 U. S.
352 -353, n. 8 (California court rejected allegation in
the complaint that appellant was deprived of all beneficial use of
its property); Agins v. Tiburon, supra, at 447 U. S. 259 ,
n. 6 (same). Nor did the court rely on the theory that regulatory
measures such as Page 482 U. S. 312 Ordinance No. 11,855 may never constitute a taking in the
constitutional sense. Instead, the claims were deemed irrelevant
solely because of the California Supreme Court's decision in Agins that damages are unavailable to redress a
"temporary" regulatory taking. [ Footnote 5 ] The California Court of Appeal has thus held
that, regardless of the correctness of appellant's claim that the
challenged ordinance denies it "all use of Lutherglen," appellant
may not recover damages until the ordinance is finally declared
unconstitutional, and then only for any period after that
declaration for which the county seeks to enforce it. The
constitutional question pretermitted in our earlier cases is
therefore squarely presented here. [ Footnote 6 ]

															We reject appellee's suggestion that, regardless of the state
court's treatment of the question, we must independently evaluate
the adequacy of the complaint and resolve the Page 482 U. S. 313 takings claim on the merits before we can reach the remedial
question. However "cryptic" -- to use appellee's description -- the
allegations with respect to the taking were, the California courts
deemed them sufficient to present the issue. We accordingly have no
occasion to decide whether the ordinance at issue actually denied
appellant all use of its property [ Footnote 7 ] or whether the county might avoid the
conclusion that a compensable taking had occurred by establishing
that the denial of all use was insulated as a part of the State's
authority to enact safety regulations. See, e.g., Goldblatt v.
Hempstead, 369 U. S. 590 (1962); Haaacheck v. Sebastian, 239 U.
S. 394 (1915); Mugler v. Kansas, 123 U.
S. 623 (1887). These questions, of course, remain open
for decision on the remand we direct today. We now turn to the
question whether the Just Compensation Clause requires the
government to pay for "temporary" regulatory takings. [ Footnote 8 ] Page 482 U. S. 314 II Consideration of the compensation question must begin with
direct reference to the language of the Fifth Amendment, which
provides in relevant part that "private property [shall not] be
taken for public use, without just compensation." As its language
indicates, and as the Court has frequently noted, this provision
does not prohibit the taking of private property, but instead
places a condition on the exercise of that power. See
Williamson County, 473 U.S. at 473 U. S. 194 ; Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U. S. 264 , 452 U. S. 297 ,
n. 40 (1981); Hurley v. Page 482 U. S. 315 Kincaid, 285 U. S. 95 , 285 U. S. 104 (1932); Monongahela Navigation Co. v. United States, 148 U. S. 312 , 148 U. S. 336 (1893); United States v. Jones, 109 U.
S. 513 , 109 U. S. 518 (1883). This basic understanding of the Amendment makes clear that
it is designed not to limit the governmental interference with
property rights per se, but rather to secure compensation in the event of otherwise proper interference
amounting to a taking. Thus, government action that works a taking
of property rights necessarily implicates the "constitutional
obligation to pay just compensation." Armstrong v. United
States, 364 U. S. 40 , 364 U. S. 49 (1960).

															We have recognized that a landowner is entitled to bring an
action in inverse condemnation as a result of " the
self-executing character of the constitutional provision with
respect to compensation. . . .'" United States v. Clarke, 445 U. S. 253 , 445 U. S. 257 (1980), quoting 6 P. Nichols, Eminent Domain § 25.41 (3d rev.
ed.1972). As noted in JUSTICE BRENNAN's dissent in San Diego
Gas & Electric Co., 450 U.S. at 450 U. S.
654 -655, it has been established at least since Jacobs v. United States, 290 U. S. 13 (1933), that claims for just compensation are grounded in the
Constitution itself: "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. Such a promise was implied
because of the duty to pay imposed by the Amendment. The suits
were thus founded upon the Constitution of the United
States. " Id. at 16. (Emphasis added.) Page 482 U. S. 316 Jacobs, moreover, does not stand alone, for the Court
has frequently repeated the view that, in the event of a taking,
the compensation remedy is required by the Constitution. See,
e.g., Kirby Forest Industries, Inc. v. United States, 467 U. S. 1 , 467 U. S. 6 (1984); United States v. Causby, 328 U.
S. 256 , 328 U. S. 267 (1946); Seaboard Air Line R. Co. v. United States, 261 U. S. 299 , 261 U. S.
304 -306 (1923); Monongahela Navigation, supra, at 148 U. S. 327 .
[ Footnote 9 ]

															It has also been established doctrine at least since Justice
Holmes' opinion for the Court in Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393 (1922), that

															"[t]he general rule at least is that, while property may be
regulated to a certain extent, if regulation goes too far, it will
be recognized as a taking." Id. at 260 U. S. 415 .
While the typical taking occurs when the government acts to condemn
property in the exercise of its power of eminent domain, the entire
doctrine of inverse condemnation is predicated on the proposition
that a taking may occur without such formal proceedings. In Pumpelly v. Green Bay
Co. , 13 Wall. 166, 80 U. S.
177 -178 (1872), construing a provision in the Wisconsin
Constitution identical to the Just Compensation Clause, this Court
said:

															"It would be a very curious and unsatisfactory result, if . . .
it shall be held that, if the government refrains from the absolute
conversion of real property to the uses of Page 482 U. S. 317 the public, it can destroy its value entirely, can inflict
irreparable and permanent injury to any extent, can, in effect,
subject it to total destruction without making any compensation,
because, in the narrowest sense of that word, it is not taken for
the public use."

															Later cases have unhesitatingly applied this principle. See,
e.g., Kaiser Aetna v. United States, 444 U.
S. 164 (1979); United States v. Dickinson, 331 U. S. 745 , 750
(1947); United States v. Causby, supra. While the California Supreme Court may not have actually
disavowed this general rule in Agins, we believe that it
has truncated the rule by disallowing damages that occurred prior
to the ultimate invalidation of the challenged regulation. The
California Supreme Court justified its conclusion at length in the Agins opinion, concluding that:

															"In combination, the need for preserving a degree of freedom in
the land use planning function, and the inhibiting financial force
which inheres in the inverse condemnation remedy, persuade us that,
on balance, mandamus or declaratory relief, rather than inverse
condemnation, is the appropriate relief under the
circumstances."

															24 Cal. 3d at 276-277, 598 P.2d at 31.

															We, of course, are not unmindful of these considerations, but
they must be evaluated in the light of the command of the Just
Compensation Clause of the Fifth Amendment. The Court has
recognized in more than one case that the government may elect to
abandon its intrusion or discontinue regulations. See, e.g.,
Kirby Forest Industries, Inc. v. United States, supra; United
States v. Dow, 357 U. S. 17 , 357 U. S. 26 (1958). Similarly, a governmental body may acquiesce in a judicial
declaration that one of its ordinances has effected an
unconstitutional taking of property; the landowner has no right
under the Just Compensation Clause to insist that a "temporary"
taking be deemed a permanent taking. But we have Page 482 U. S. 318 not resolved whether abandonment by the government requires
payment of compensation for the period of time during which
regulations deny a landowner all use of his land.

															In considering this question, we find substantial guidance in
cases where the government has only temporarily exercised its right
to use private property. In United States v. Dow, supra, at 357 U. S. 26 ,
though rejecting a claim that the Government may not abandon
condemnation proceedings, the Court observed that abandonment

															"results in an alteration in the property interest taken -- from
[one of] full ownership to one of temporary use and occupation. . .
. In such cases, compensation would be measured by the principles
normally governing the taking of a right to use property
temporarily. See Kimball Laundry Co. v. United States, 338 U. S.
1 [1949]; United States v. Petty Motor Co., 327 U. S.
372 [1946]; United States v. General Motors
Corp., 323 U. S. 373 [1945]."

															Each of the cases cited by the Dow Court involved
appropriation of private property by the United States for use
during World War II. Though the takings were in fact "temporary," see United States v. Petty Motor Co., 327 U.
S. 372 , 327 U. S. 375 (1946), there was no question that compensation would be required
for the Government's interference with the use of the property; the
Court was concerned in each case with determining the proper
measure of the monetary relief to which the property holders were
entitled. See Kimball Laundry Co. v. United States, 338 U. S. 1 , 338 U. S. 4 -21
(1949); Petty Motor Co., supra, at 327 U. S.
377 -381; United States v. General Motors Corp., 323 U. S. 373 , 323 U. S.
379 -384 (1945).

															These cases reflect the fact that "temporary" takings which, as
here, deny a landowner all use of his property, are not different
in kind from permanent takings, for which the Constitution clearly
requires compensation. Cf. San Diego Gas & Electric
Co., 450 U.S. at 450 U. S. 657 (BRENNAN, J., dissenting) ("Nothing in the Just Compensation Clause
suggests that takings' must be permanent and irrevocable"). It
is axiomatic that the Fifth Amendment's just compensation provision
is "designed to bar Government from forcing some Page 482 U. S.
319 people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. at 364 U. S. 49 . See also Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S.
123 -125 (1978); Monongahela Navigation Co. v. United
States, 148 U.S. at 148 U. S. 325 .
In the present case, the interim ordinance was adopted by the
County of Los Angeles in January, 1979, and became effective
immediately. Appellant filed suit within a month after the
effective date of the ordinance, and yet, when the California
Supreme Court denied a hearing in the case on October 17, 1985, the
merits of appellant's claim had yet to be determined. The United
States has been required to pay compensation for leasehold
interests of shorter duration than this. The value of a leasehold
interest in property for a period of years may be substantial, and
the burden on the property owner in extinguishing such an interest
for a period of years may be great indeed. See, e.g., United
States v. General Motors, supra. Where this burden results
from governmental action that amounted to a taking, the Just
Compensation Clause of the Fifth Amendment requires that the
government pay the landowner for the value of the use of the land
during this period. Cf. United States v. Causby, 328 U.S.
at 328 U. S. 261 ("It is the owner's loss, not the taker's gain, which is the
measure of the value of the property taken"). Invalidation of the
ordinance or its successor ordinance after this period of time,
though converting the taking into a "temporary" one, is not a
sufficient remedy to meet the demands of the Just Compensation
Clause. Appellee argues that requiring compensation for denial of all
use of land prior to invalidation is inconsistent with this Court's
decisions in Danforth v. United States, 308 U.
S. 271 (1939), and Agins v. Tiburon, 447 U. S. 255 (1980). In Danforth, the landowner contended that the
"taking" of his property had occurred prior to the institution of
condemnation proceedings, by reason of the enactment of the Flood
Control Act itself. He claimed that the passage of that Act had
diminished Page 482 U. S. 320 the value of his property because the plan embodied in the Act
required condemnation of a flowage easement across his property.
The Court held that, in the context of condemnation proceedings, a
taking does not occur until compensation is determined and paid,
and went on to say that "[a] reduction or increase in the value of
property may occur by reason of legislation for or the beginning or
completion of a project," but "[s]uch changes in value are
incidents of ownership. They cannot be considered as a taking'
in the constitutional sense." Danforth, supra, at 308 U. S. 285 . Agins likewise rejected a claim that the city's
preliminary activities constituted a taking, saying that "[m]ere fluctuations in value during the process of governmental
decisionmaking, absent extraordinary delay, are 'incidents of
ownership.'" See 447 U.S. at 447 U. S. 263 ,
n. 9.

															But these cases merely stand for the unexceptional proposition
that the valuation of property which has been taken must be
calculated as of the time of the taking, and that depreciation in
value of the property by reason of preliminary activity is not
chargeable to the government. Thus, in Agins, we concluded
that the preliminary activity did not work a taking. It would
require a considerable extension of these decisions to say that no
compensable regulatory taking may occur until a challenged
ordinance has ultimately been held invalid. [ Footnote 10 ] Page 482 U. S. 321 Nothing we say today is intended to abrogate the principle that
the decision to exercise the power of eminent domain is a
legislative function " for Congress and Congress alone to
determine.'" Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 467 U. S. 240 (1984), quoting Berman v. Parker, 348 U. S.
26 , 348 U. S. 33 (1954). Once a court determines that a taking has occurred, the
government retains the whole range of options already available --
amendment of the regulation, withdrawal of the invalidated
regulation, or exercise of eminent domain. Thus we do not, as the
Solicitor General suggests, "permit a court, at the behest of a
private person, to require the . . . Government to exercise the
power of eminent domain. . . ." Brief for the United States as Amicus Curiae 22. We merely hold that, where the
government's activities have already worked a taking of all use of
property, no subsequent action by the government can relieve it of
the duty to provide compensation for the period during which the
taking was effective. We also point out that the allegation of the complaint, which we
treat as true for purposes of our decision, was that the ordinance
in question denied appellant all use of its property. We limit our
holding to the facts presented, and, of course, do not deal with
the quite different questions that would arise in the case of
normal delays in obtaining building permits, changes in zoning
ordinances, variances, and the like, which are not before us. We
realize that even our present holding will undoubtedly lessen to
some extent the freedom and flexibility of land use planners and
governing bodies of municipal corporations when enacting land use
regulations. But such consequences necessarily flow from any
decision upholding a claim of constitutional right; many of the
provisions of the Constitution are designed to limit the
flexibility and freedom of governmental authorities, and the Just
Compensation Clause of the Fifth Amendment is one of them. As
Justice Holmes aptly noted more than 50 years ago,

															"a strong public Page 482 U. S. 322 desire to improve the public condition is not enough to warrant
achieving the desire by a shorter cut than the constitutional way
of paying for the change." Pennsylvania Coal Co. v. Mahon, 260 U.S. at 260 U. S.
416 .

															Here we must assume that the Los Angeles County ordinance has
denied appellant all use of its property for a considerable period
of years, and we hold that invalidation of the ordinance without
payment of fair value for the use of the property during this
period of time would be a constitutionally insufficient remedy. The
judgment of the California Court of Appeal is therefore reversed,
and the case is remanded for further proceedings not inconsistent
with this opinion. It is so ordered. [ Footnote 1 ]

															Section 835 of the California Government Code establishes
conditions under which a public entity may be liable "for injury
caused by a dangerous condition of its property. . . ."

															[ Footnote 2 ]

															The trial court also granted defendants' motion for judgment on
the pleadings on the second cause of action, based on cloud
seeding. It limited trial on the first cause of action for damages
under Cal.Govt.Code Ann. § 835 (West 1980), rejecting the inverse
condemnation claim. At the close of plaintiff's evidence, the trial
court granted a nonsuit on behalf of defendants, dismissing the
entire complaint.

															[ Footnote 3 ]

															The California Court of Appeal also affirmed the lower court's
orders limiting the issues for trial on the first cause of action,
granting a nonsuit on the issues that proceeded to trial, and
dismissing the second cause of action -- based on cloud-seeding --
to the extent it was founded on a theory of strict liability in
tort. The court reversed the trial court's ruling that the second
cause of action could not be maintained against the Flood Control
District under the theory of inverse condemnation. The case was
remanded for further proceedings on this claim.

															These circumstances alone, apart from the more particular issues
presented in takings cases and discussed in the text, require us to
consider whether the pending resolution of further liability
questions deprives us of jurisdiction because we are not presented
with a "final judgmen[t] or decre[e]" within the meaning of 28
U.S.C. § 1257. We think that this case is fairly characterized as
one

															"in which the federal issue, finally decided by the highest
court in the State [in which a decision could be had], will survive
and require decision regardless of the outcome of future state
court proceedings." Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469 , 420 U. S. 480 (1975). As we explain infra at 482 U. S.
311 -313, the California Court of Appeal rejected
appellant's federal claim that it was entitled to just compensation
from the county for the taking of its property; this distinct issue
of federal law will survive and require decision no matter how
further proceedings resolve the issues concerning the liability of
the Flood Control District for its cloud seeding operation.

															[ Footnote 4 ]

															The Fifth Amendment provides "nor shall private property be
taken for public use, without just compensation," and applies to
the States through the Fourteenth Amendment. See Chicago, B.
& Q. R. Co. v. Chicago, 166 U. S. 226 (1897).

															[ Footnote 5 ]

															It has been urged that the California Supreme Court's discussion
of the compensation question in Agins v. Tiburon was
dictum, because the court had already decided that the regulations
could not work a taking. See Martino v. Santa Clara Valley
Water District, 703 F.2d 1141, 1147 (CA9 1983) ("extended
dictum"). The Court of Appeal in this case considered and rejected
the possibility that the compensation discussion in Agins was dictum. See App. to Juris. Statement A14-A15, quoting Aptos Seascape Corp. v. County of Santa
Cruz, 138 Cal. App.
3d 484 , 493, 188 Cal. Rptr.
191 , 195 (1982) ("[I]t is apparent that the Supreme Court
itself did not intend its discussion [of inverse condemnation as a
remedy for a taking] to be considered dictum, . . . and it has not
been treated as such in subsequent Court of Appeal cases"). Whether
treating the claim as a takings claim is inconsistent with the
first holding of Agins is not a matter for our concern. It
is enough that the court did so for us to reach the remedial
question.

															[ Footnote 6 ]

															Our cases have also required that one seeking compensation must
"seek compensation through the procedures the State has provided
for doing so" before the claim is ripe for review. Williamson
County Regional Planning Comm'n v. Hamilton Bank, 473 U.
S. 172 , 473 U. S. 194 (1985). It is clear that appellant met this requirement. Having
assumed that a taking occurred, the California court's dismissal of
the action establishes that "the inverse condemnation procedure is
unavailable. . . ." Id. at 473 U. S. 197 .
The compensation claim is accordingly ripe for our
consideration.

															[ Footnote 7 ]

															Because the issue was not raised in the complaint or considered
relevant by the California courts in their assumption that a taking
had occurred, we also do not consider the effect of the county's
permanent ordinance on the conclusions of the courts below. That
ordinance, adopted in 1981 and reproduced at App. to Juris.
Statement A32-A33, provides that

															"[a] person shall not use, erect, construct, move onto, or . . .
alter, modify, enlarge or reconstruct any building or structure
within the boundaries of a flood protection district except . . .
[a]ccessory buildings and structures that will not substantially
impede the flow of water, including sewer, gas, electrical, and
water systems, approved by the county engineer . . . ; [a]utomobile
parking facilities incidental to a lawfully established use; [and]
[f]lood-control structures approved by the chief engineer of the
Los Angeles County Flood Control District."

															County Code § 22.44.220.

															[ Footnote 8 ]

															In addition to challenging the finality of the takings decision
below, appellee raises two other challenges to our jurisdiction.
First, going to both the appellate and certiorari jurisdiction of
this Court under 28 U.S.C. § 1257, appellee alleges that appellant
has failed to preserve for review any claim under federal law.
Though the complaint in this case invoked only the California
Constitution, appellant argued in the Court of Appeal that "recent
Federal decisions . . . show the Federal Constitutional error in .
. . Agins [v. Tiburon, 24 Cal. 3d
266 , 598 P.2d 25 (1979)]." App. to Appellant's Opposition to
Appellee's Second Motion to Dismiss A13. The Court of Appeal, by
applying the state rule of Agins to dismiss appellant's
action, rejected on the merits the claim that the rule violated the
United States Constitution. This disposition makes irrelevant for
our purposes any deficiencies in the complaint as to federal
issues. Where the state court has considered and decided the
constitutional claim, we need not consider how or when the question
was raised. Manhattan Life Ins. Co. v. Cohen, 234 U.
S. 123 , 234 U. S. 134 (1914). Having succeeded in bringing the federal issue into the
case, appellant preserved this question on appeal to the California
Supreme Court, see App. to Appellant's Opposition to
Appellee's Second Motion to Dismiss A14-A-22, which declined to
review its Agins decision. Accordingly, we find that the
issue urged here was both raised and passed upon below.

															Second, appellee challenges our appellate jurisdiction on the
grounds that the case below did not draw "in question the validity
of a statute of any state. . . ." 28 U.S.C. § 1257(2). There is, of
course, no doubt that the ordinance at issue in this case is "a
statute of [a] state" for purposes of § 1257. See Erznoznik v.
City of Jacksonville, 422 U. S. 205 , 422 U. S. 207 ,
n. 3 (1975). As construed by the state courts, the complaint in
this case alleged that the ordinance, by denying all use of the
property, worked a taking without providing for just compensation.
We have frequently treated such challenges to zoning ordinances as
challenges to their validity under the Federal Constitution, and
see no reason to revise that approach here. See, e.g.,
MacDonald, Sommer & Frates v. Yolo County, 477 U.
S. 340 (1986); Loretto v. Teleprompter Manhattan
CATV Corp., 458 U. S. 419 (1982); Agins v. Tiburon, 447 U.
S. 255 (1980); Penn Central Transportation Co. v.
New York City, 438 U. S. 104 (1978). By holding that the failure to provide compensation was not
unconstitutional, moreover, the California courts upheld the
validity of the ordinance against the particular federal
constitutional question at issue here -- just compensation -- and
the case is therefore within the terms of § 1257(2).

															[ Footnote 9 ]

															The Solicitor General urges that the prohibitory nature of the
Fifth Amendment, see supra, at 482 U. S. 314 ,
combined with principles of sovereign immunity, establishes that
the Amendment itself is only a limitation on the power of the
Government to act, not a remedial provision. The cases cited in the
text, we think, refute the argument of the United States that "the
Constitution does not, of its own force, furnish a basis for a
court to award money damages against the government." Brief for
United States as Amicus Curiae 14. Though arising in
various factual and jurisdictional settings, these cases make clear
that it is the Constitution that dictates the remedy for
interference with property rights amounting to a taking. See
San Diego Gas & Electric Co. v. San Diego, 450 U.
S. 621 , 450 U. S. 666 ,
n. 21 (1981) (BRENNAN, J., dissenting), quoting United States
v. Dickinson, 331 U. S. 745 , 331 U. S. 748 (1947).

															[ Footnote 10 ] Williamson County Regional Planning Comm'n is not to
the contrary. There, we noted that "no constitutional violation
occurs until just compensation has been denied." 473 U.S. at 473 U. S. 194 ,
n. 13. This statement, however, was addressed to the issue whether
the constitutional claim was ripe for review, and did not establish
that compensation is unavailable for government activity occurring
before compensation is actually denied. Though, as a matter of law,
an illegitimate taking might not occur until the government refuses
to pay, the interference that effects a taking might begin much
earlier, and compensation is measured from that time. See Kirby
Forest Industries, Inc. v. United States, 467 U. S.
1 , 467 U. S. 6 (1984)
(Where Government physically occupies land without condemnation
proceedings, "the owner has a right to bring an inverse
condemnation' suit to recover the value of the land on the date
of the intrusion by the Government. "). (Emphasis
added.) JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR
join as to Parts I and III, dissenting.

															One thing is certain. The Court's decision today will generate a
great deal of litigation. Most of it, I believe, will be
unproductive. But the mere duty to defend the actions that today's
decision will spawn will undoubtedly have a significant adverse
impact on the land use regulatory process. The Court has reached
out to address an issue not actually presented in this case, and
has then answered that self-imposed question in a superficial and,
I believe, dangerous way.

															Four flaws in the Court's analysis merit special comment. First,
the Court unnecessarily and imprudently assumes that appellant's
complaint alleges an unconstitutional taking of Lutherglen. Second,
the Court distorts our precedents in the area of regulatory takings
when it concludes that all ordinances which would constitute
takings if allowed to remain in effect permanently, necessarily
also constitute takings if they are in effect for only a limited
period of time. Third, the Court incorrectly assumes that the
California Supreme Court has already decided that it will never
allow a state court to grant monetary relief for a temporary
regulatory taking, and Page 482 U. S. 323 then uses that conclusion to reverse a judgment which is correct
under the Court's own theories. Finally, the Court errs in
concluding that it is the Takings Clause, rather than the Due
Process Clause, which is the primary constraint on the use of
unfair and dilatory procedures in the land use area. I In the relevant portion of its complaint for inverse
condemnation, appellant alleged:

															" 16" "On January 11, 1979, the County adopted Ordinance No. 11,855,
which provides:"

															"Section 1. A person shall not construct, reconstruct, place or
enlarge any building or structure, any portion of which is, or will
be, located within the outer boundary lines of the interim flood
protection area located in Mill Creek Canyon, vicinity of Hidden
Springs, as shown on Map No. 63 ML 52, attached hereto and
incorporated herein by reference as though fully set forth."

															" 17" "Lutherglen is within the flood protection area created by
Ordinance No. 11,855."

															" 18" "Ordinance No. 11,855 denies First Church all use of
Lutherglen."

															App. 49.

															Because the Church sought only compensation, and did not request
invalidation of the ordinance, the Superior Court granted a motion
to strike those three paragraphs, and consequently never decided
whether they alleged a "taking." [ Footnote 2/1 ] Page 482 U. S. 324 The Superior Court granted the motion to strike on the basis of
the rule announced in Agins v. Tiburon, 24 Cal. 3d
266 , 598 P.2d 25 (1979). Under the rule of that case, a
property owner who claims that a land use restriction has taken
property for public use without compensation must file an action
seeking invalidation of the regulation, and may not simply demand
compensation. The Court of Appeal affirmed on the authority of Agins alone, [ Footnote
2/2 ] also without holding that the complaint had alleged a
violation of either the California Constitution or the Federal
Constitution. At most, it assumed, arguendo, that a
constitutional violation had been alleged.

															This Court clearly has the authority to decide this case by
ruling that the complaint did not allege a taking under the Federal
Constitution, [ Footnote 2/3 ] and
therefore to avoid the novel constitutional Page 482 U. S. 325 issue that it addresses. Even though I believe the Court's lack
of self-restraint is imprudent, it is imperative to stress that the
Court does not hold that appellant is entitled to compensation as a
result of the flood protection regulation that the county enacted.
No matter whether the regulation is treated as one that deprives
appellant of its property on a permanent or temporary basis, this
Court's precedents demonstrate that the type of regulatory program
at issue here cannot constitute a taking.

															"Long ago it was recognized that 'all property in this country
is held under the implied obligation that the owner's use of it
shall not be injurious to the community.'" Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 480 U. S.
491 -492 (1987), quoting Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 665 (1887). Thus, in order to protect the health and safety of the
community, [ Footnote 2/4 ]
government may condemn unsafe structures, Page 482 U. S. 326 may close unlawful business operations, may destroy infected
trees, and surely may restrict access to hazardous areas -- for
example, land on which radioactive materials have been discharged,
land in the path of a lava flow from an erupting volcano, or land
in the path of a potentially life-threatening flood. [ Footnote 2/5 ] When a governmental entity
imposes these types of health and safety regulations, it may not
be

															"burdened with the condition that [it] must compensate such
individual owners for pecuniary losses they may sustain, by reason
of their not being permitted, by a noxious use of their property,
to inflict injury upon the community." Mugler, supra, at 123 U. S.
668 -669; see generally Keystone Bituminous,
supra, at 480 U. S.
485 -493.

															In this case, the legitimacy of the county's interest in the
enactment of Ordinance No. 11,855 is apparent from the face of the
ordinance, and has never been challenged. [ Footnote 2/6 ] It was enacted Page 482 U. S. 327 as an "interim" measure "temporarily prohibiting" certain
construction in a specified area because the County Board believed
the prohibition was "urgently required for the immediate
preservation of the public health and safety." Even if that were
not true, the strong presumption of constitutionality that applies
to legislative enactments certainly requires one challenging the
constitutionality of an ordinance of this kind to allege some sort
of improper purpose or insufficient justification in order to state
a colorable federal claim for relief. A presumption of validity is
particularly appropriate in this case, because the complaint did
not even allege that the ordinance is invalid, or pray for a
declaration of invalidity or an injunction against its enforcement.
[ Footnote 2/7 ] Nor did it allege
any facts indicating how the ordinance interfered with any future
use of the property contemplated or planned by appellant. In light
of the tragic flood and the loss of life that precipitated Page 482 U. S. 328 the safety regulations here, it is hard to understand how
appellant ever expected to rebuild on Lutherglen.

															Thus, although the Court uses the allegations of this complaint
as a springboard for its discussion of a discrete legal issue, it
does not, and could not under our precedents, hold that the
allegations sufficiently alleged a taking or that the county's
effort to preserve life and property could ever constitute a
taking. As far as the United States Constitution is concerned, the
claim that the ordinance was a taking of Lutherglen should be
summarily rejected on its merits. II There is no dispute about the proposition that a regulation
which goes "too far" must be deemed a taking. See Pennsylvania
Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 415 (1922). When that happens, the government has a choice: it may
abandon the regulation or it may continue to regulate and
compensate those whose property it takes. In the usual case, either
of these options is wholly satisfactory. Paying compensation for
the property is, of course, a constitutional prerogative of the
sovereign. Alternatively, if the sovereign chooses not to retain
the regulation, repeal will, in virtually all cases, mitigate the
overall effect of the regulation so substantially that the slight
diminution in value that the regulation caused while in effect
cannot be classified as a taking of property. We may assume,
however, that this may not always be the case. There may be some
situations in which even the temporary existence of a regulation
has such severe consequences that invalidation or repeal will not
mitigate the damage enough to remove the "taking" label. This
hypothetical situation is what the Court calls a "temporary
taking." But, contrary to the Court's implications, the fact that a
regulation would constitute a taking if allowed to remain in effect
permanently is by no means dispositive of the question whether the
effect that the regulation has already had on the Page 482 U. S. 329 property is so severe that a taking occurred during the period
before the regulation was invalidated.

															A temporary interference with an owner's use of his property may
constitute a taking for which the Constitution requires that
compensation be paid. At least with respect to physical takings,
the Court has so held. See ante at 482 U. S. 318 (citing cases). Thus, if the government appropriates a leasehold
interest and uses it for a public purpose, the return of the
premises at the expiration of the lease would obviously not erase
the fact of the government's temporary occupation. Or if the
government destroys a chicken farm by building a road through it or
flying planes over it, removing the road or terminating the flights
would not palliate the physical damage that had already occurred.
These examples are consistent with the rule that even minimal
physical occupations constitute takings which give rise to a duty
to compensate. See Loretto v. Teleprompter Manhattan CATV
Corp., 458 U. S. 419 (1982).

															But our cases also make it clear that regulatory takings and
physical takings are very different in this, as well as other,
respects. While virtually all physical invasions are deemed
takings, see, e.g., Loretto, supra; United States v.
Causby, 328 U. S. 256 (1946), a regulatory program that adversely affects property values
does not constitute a taking unless it destroys a major portion of
the property's value. See Keystone Bituminous, 480 U.S. at 480 U. S.
493 -502; Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U. S. 264 , 452 U. S. 296 (1981); Agins v. Tiburon, 447 U.
S. 255 , 447 U. S. 260 (1980). This diminution of value inquiry is unique to regulatory
takings. Unlike physical invasions, which are relatively rare and
easily identifiable without making any economic analysis,
regulatory programs constantly affect property values in countless
ways, and only the most extreme regulations can constitute takings.
Some dividing line must be established between everyday regulatory
inconveniences and those so severe that they constitute takings.
The diminution of value Page 482 U. S. 330 inquiry has long been used in identifying that line. As Justice
Holmes put it:

															"Government hardly could go on if, to some extent, values
incident to property could not be diminished without paying for
every such change in the general law." Pennsylvania Coal, supra, at 260 U. S. 413 .
It is this basic distinction between regulatory and physical
takings that the Court ignores today.

															Regulations are three-dimensional; they have depth, width, and
length. As for depth, regulations define the extent to which the
owner may not use the property in question. With respect to width,
regulations define the amount of property encompassed by the
restrictions. Finally, and for purposes of this case, essentially,
regulations set forth the duration of the restrictions. It is
obvious that no one of these elements can be analyzed alone to
evaluate the impact of a regulation, and hence to determine whether
a taking has occurred. For example, in Keystone Bituminous we declined to focus in on any discrete segment of the coal in the
petitioners' mines, but rather looked to the effect that the
restriction had on their entire mining project. See 480
U.S. at 480 U. S.
493 -502; see also Penn Central Transportation Co. v.
New York City, 438 U. S. 104 , 438 U. S. 137 (1978) (looking at owner's other buildings). Similarly, in Penn
Central, the Court concluded that it was error to focus on the
nature of the uses which were prohibited without also examining the
many profitable uses to which the property could still be put. Id. at 438 U. S.
130 -131; see also Agins, supra, at 447 U. S.
262 -263; Andrus v. Allard, 444 U. S.
51 , 444 U. S. 64 -67
(1979). Both of these factors are essential to a meaningful
analysis of the economic effect that regulations have on the value
of property and on an owner's reasonable investment-based
expectations with respect to the property.

															Just as it would be senseless to ignore these first two factors
in assessing the economic effect of a regulation, one cannot
conduct the inquiry without considering the duration of the
restriction. See generally Williams, Smith, Siemon, Page 482 U. S. 331 Mandelker, & Babcock, The White River Junction Manifesto, 9
Vt.L.Rev.193, 215-218 (1984). For example, while I agreed with the
Chief Justice's view that the permanent restriction on building
involved in Penn Central constituted a taking, I assume
that no one would have suggested that a temporary freeze on
building would have also constituted a taking. Similarly, I am
confident that even the dissenters in Keystone Bituminous would not have concluded that the restriction on bituminous coal
mining would have constituted a taking had it simply required the
mining companies to delay their operations until an appropriate
safety inspection could be made.

															On the other hand, I am willing to assume that some cases may
arise in which a property owner can show that prospective
invalidation of the regulation cannot cure the taking -- that the
temporary operation of a regulation has caused such a significant
diminution in the property's value that compensation must be
afforded for the taking that has already occurred. For this ever to
happen, the restriction on the use of the property would not only
have to be a substantial one, but it would also have to remain in
effect for a significant percentage of the property's useful life.
In such a case, an application of our test for regulatory takings
would obviously require an inquiry into the duration of the
restriction, as well as its scope and severity. See Williamson
County Regional Planning Comm'n v. Hamilton Bank, 473 U.
S. 172 , 473 U. S.
190 -191 (1985) (refusing to evaluate taking claim when
the long-term economic effects were uncertain because it was not
clear that restrictions would remain in effect permanently).

															The cases that the Court relies upon for the proposition that
there is no distinction between temporary and permanent takings, see ante at 482 U. S. 318 ,
are inapposite, for they all deal with physical takings -- where
the diminution of value test is inapplicable. [ Footnote 2/8 ] None of those cases is controversial;
the state Page 482 U. S. 332 certainly may not occupy an individual's home for a month and
then escape compensation by leaving and declaring the occupation
"temporary." But what does that have to do with the proper inquiry
for regulatory takings? Why should there be a constitutional
distinction between a permanent restriction that only reduces the
economic value of the property by a fraction -- perhaps one-third
-- and a restriction that merely postpones the development of a
property for a fraction of its useful life -- presumably far less
than a third? In the former instance, no taking has occurred; in
the latter case, the Court now proclaims that compensation for a
taking must be provided. The Court makes no effort to explain these
irreconcilable results. Instead, without any attempt to fit its
proclamation into our regulatory takings cases, the Court boldly
announces that, once a property owner makes out a claim that a
regulation would constitute a taking if allowed to stand, then he
or she is entitled to damages for the period of time between its
enactment and its invalidation.

															Until today, we have repeatedly rejected the notion that all
temporary diminutions in the value of property automatically
activate the compensation requirement of the Takings Clause. In Agins, we held:

															"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. . . . Even if the appellants' ability to sell
their property was Page 482 U. S. 333 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."" 447 U.S. at 447 U. S. 263 ,
n. 9, quoting Danforth v. United States, 308 U.
S. 271 , 308 U. S. 285 (1939). [ Footnote 2/9 ]

															Our more recent takings cases also cut against the approach the
Court now takes. In Williamson, supra, and MacDonald,
Sommer & Frates v. Yolo County, 477 U.
S. 340 (1986), we held that we could not review a taking
claim as long as the property owner had an opportunity to obtain a
variance or some other form of relief from the zoning authorities
that would permit the development of the property to go forward. See Williamson, supra, at 473 U. S.
190 -191; Yolo County, supra, at 477 U. S.
348 -353. Implicit in those holdings was the assumption
that the temporary deprivation of all use of the property would not
constitute a taking if it would be adequately remedied by a belated
grant of approval of the developer's plans. See Sallet,
Regulatory "Takings" and Just Compensation: The Supreme Court's
Search for a Solution Continues, 18 Urb.Law. 635, 653 (1986). Page 482 U. S. 334 The Court's reasoning also suffers from severe internal
inconsistency. Although it purports to put to one side "normal
delays in obtaining building permits, changes in zoning ordinances,
variances and the like," ante at 482 U. S. 321 ,
the Court does not explain why there is a constitutional
distinction between a total denial of all use of property during
such "normal delays" and an equally total denial for the same
length of time in order to determine whether a regulation has "gone
too far" to be sustained unless the government is prepared to
condemn the property. Precisely the same interference with a real
estate developer's plans may be occasioned by protracted
proceedings which terminate with a zoning board's decision that the
public interest would be served by modification of its regulation
and equally protracted litigation which ends with a judicial
determination that the existing zoning restraint has "gone too
far," and that the board must therefore grant the developer a
variance. The Court's analysis takes no cognizance of these
realities. Instead, it appears to erect an artificial distinction
between "normal delays" and the delays involved in obtaining a
court declaration that the regulation constitutes a taking.
[ Footnote 2/10 ]

															In my opinion, the question whether a "temporary taking" has
occurred should not be answered by simply looking at the reason a
temporary interference with an owner's use of his property is
terminated. [ Footnote 2/11 ]
Litigation challenging the validity of a land use restriction gives
rise to a delay that is just as "normal" as an administrative
procedure seeking a variance Page 482 U. S. 335 or an approval of a controversial plan. [ Footnote 2/12 ] Just because a plaintiff can prove that
a land use restriction would constitute a taking if allowed to
remain in effect permanently does not mean that he or she can also
prove that its temporary application rose to the level of a
constitutional taking. III The Court recognizes that the California courts have the right
to adopt invalidation of an excessive regulation as the appropriate
remedy for the permanent effects of overburdensome regulations,
rather than allowing the regulation to stand and ordering the
government to afford compensation for the permanent taking. See
ante at 482 U. S. 319 ; see also Yolo County, supra, at 477 U. S.
362 -363, and n. 4 (WHITE, J., dissenting); San Diego
Gas & Electric Co. v. San Diego, 450 U.
S. 621 , 450 U. S. 657 (1981) (BRENNAN, J., dissenting). The difference between these two
remedies is less substantial than one might assume. When a court
invalidates a regulation, the Legislative or Executive Branch must
then decide whether to condemn the property in order to proceed
with the regulatory scheme. On the other hand, if the court
requires compensation for a permanent taking, the Executive or
Legislative Branch may still repeal the regulation, and thus
prevent the permanent taking. The difference, therefore, is only in
what will happen in the case of Legislative or Executive inertia.
Many scholars have debated the respective merits of the alternative
approaches in light of separation of powers concerns, [ Footnote 2/13 ] but our only concern is
with a state court's decision on Page 482 U. S. 336 which procedure it considers more appropriate. California is
fully competent to decide how it wishes to deal with the separation
of powers implications of the remedy it routinely uses. [ Footnote 2/14 ]

															Once it is recognized that California may deal with the
permanent taking problem by invalidating objectionable regulations,
it becomes clear that the California Court of Appeal's decision in
this case should be affirmed. Even if this Court is correct in
stating that one who makes out a claim for a permanent taking is
automatically entitled to some compensation for the temporary
aspect of the taking as well, the States still have the right to
deal with the permanent aspect of a taking by invalidating the
regulation. That is all that the California courts have done in
this case. They have refused to proceed upon a complaint which
sought only damages, and which did not contain a request for a
declaratory invalidation of the regulation, as clearly required by
California precedent.

															The Court seriously errs, therefore, when it claims that the
California court held that

															"a landowner who claims that his property has been 'taken' by a
land use regulation may not recover damages for the time before it
is finally determined that the regulation constitutes a 'taking' of
his property." Ante at 482 U. S.
306 -307. Perhaps the Court discerns such a practice from
some of the California Supreme Court's earlier decisions, but that
is surely no reason for reversing a procedural judgment in a case
in which the dismissal of the complaint was entirely consistent
with an approach that the Page 482 U. S. 337 Court endorses. Indeed, I am not all that sure how the
California courts would deal with a landowner who seeks both
invalidation of the regulation and damages for the temporary taking
that occurred prior to the requested invalidation.

															As a matter of regulating the procedure in its own state courts,
the California Supreme Court has decided that mandamus or
declaratory relief, rather than inverse condemnation, provides "the
appropriate relief" for one who challenges a regulation as a
taking. Agins v. Tiburon, 24 Cal. 3d at 277, 598 P.2d at
31. This statement in Agins can be interpreted in two
quite different ways. First, it may merely require the property
owner to exhaust his equitable remedies before asserting any claim
for damages. Under that reading, a postponement of any
consideration of monetary relief, or even a requirement that a
"temporary regulatory taking" claim be asserted in a separate
proceeding after the temporary interference has ended, would not
violate the Federal Constitution. Second, the Agins opinion may be read to indicate that California courts will never
award damages for a temporary regulatory taking. [ Footnote 2/15 ] Even if we assume that such a rigid
rule would bar recovery in the California courts in a few
meritorious cases, we should not allow a litigant to challenge the
rule unless his complaint contains allegations explaining why
declaratory relief would not provide him with an adequate remedy,
and unless his complaint at least complies with the California rule
of procedure to the extent that the rule is clearly legitimate.
Since the First Amendment is not implicated, the fact that
California's rule may be somewhat "overbroad" is no reason for
permitting a party to complain about the impact of the rule on
other property owners Page 482 U. S. 338 who actually file complaints that call California's rule into
question.

															In any event, the Court has no business speculating on how the
California courts will deal with this problem when it is presented
to them. Despite the many cases in which the California courts have
applied the Agins rule, the Court can point to no case in
which application of the rule has deprived a property owner of his
rightful compensation.

															In criminal litigation, we have steadfastly adhered to the
practice of requiring the defendant to exhaust his or her state
remedies before collaterally attacking a conviction based on a
claimed violation of the Federal Constitution. That requirement is
supported by our respect for the sovereignty of the several States
and by our interest in having federal judges decide federal
constitutional issues only on the basis of fully developed records. See generally Rose v. Lundy, 455 U.
S. 509 (1982). The States' interest in controlling land
use development and in exploring all the ramifications of a
challenge to a zoning restriction should command the same deference
from the federal judiciary. See Williamson, 473 U.S. at 473 U. S.
194 -197. And our interest in avoiding the decision of
federal constitutional questions on anything less than a fully
informed basis counsels against trying to decide whether equitable
relief has forestalled a temporary taking until after we know what
the relief is. In short, even if the California courts adhere to a
rule of never granting monetary relief for a temporary regulatory
taking, I believe we should require the property owner to exhaust
his state remedies before confronting the question whether the net
result of the state proceedings has amounted to a temporary taking
of property without just compensation. In this case, the Church
should be required to pursue an action demanding invalidation of
the ordinance prior to seeking this Court's review of California's
procedures. [ Footnote 2/16 ] Page 482 U. S. 339 The appellant should not be permitted to circumvent that
requirement by omitting any prayer for equitable relief from its
complaint. I believe the California Supreme Court is justified in
insisting that the owner recover as much of its property as
possible before foisting any of it on an unwilling governmental
purchaser. The Court apparently agrees with this proposition. Thus,
even on the Court's own radical view of temporary regulatory
takings announced today, the California courts had the right to
strike this complaint. IV There is, of course, a possibility that land use planning, like
other forms of regulation, will unfairly deprive a citizen of the
right to develop his property at the time and in the manner that
will best serve his economic interests. The "regulatory taking"
doctrine announced in Pennsylvania Coal places a limit on
the permissible scope of land use restrictions. In my opinion,
however, it is the Due Process Clause, rather than that doctrine,
that protects the property owner from improperly motivated,
unfairly conducted, or unnecessarily protracted governmental
decisionmaking. Violation of the procedural safeguards mandated by
the Due Process Clause will give rise to actions for damages under
42 U.S.C. § 1983, but I am not persuaded that delays in the
development of property that are occasioned by fairly conducted
administrative or judicial proceedings are compensable, except
perhaps in the most unusual circumstances. On the contrary, I am
convinced that the public interest in having important governmental
decisions made in an orderly, fully informed way amply justifies
the temporary burden on the citizen that is the inevitable
by-product of democratic government. Page 482 U. S. 340 As I recently wrote:

															"The Due Process Clause of the Fourteenth Amendment requires a
State to employ fair procedures in the administration and
enforcement of all kinds of regulations. It does not, however,
impose the utopian requirement that enforcement action may not
impose any cost upon the citizen unless the government's position
is completely vindicated. We must presume that regulatory bodies
such as zoning boards, school boards, and health boards, generally
make a good faith effort to advance the public interest when they
are performing their official duties, but we must also recognize
that they will often become involved in controversies that they
will ultimately lose. Even though these controversies are costly
and temporarily harmful to the private citizen, as long as fair
procedures are followed, I do not believe there is any basis in the
Constitution for characterizing the inevitable byproduct of every
such dispute as a 'taking' of private property." Williamson, supra, at 473 U. S. 205 (opinion concurring in judgment).

															The policy implications of today's decision are obvious and, I
fear, far-reaching. Cautious local officials and land use

															planners may avoid taking any action that might later be
challenged and thus give rise to a damages action. Much important
regulation will never be enacted, [ Footnote 2/17 ] even perhaps in Page 482 U. S. 341 the health and safety area. Were this result mandated by the
Constitution, these serious implications would have to be ignored.
But the loose cannon the Court fires today is not only unattached
to the Constitution, but it also takes aim at a long line of
precedents in the regulatory takings area. It would be the better
part of valor simply to decide the case at hand, instead of
igniting the kind of litigation explosion that this decision will
undoubtedly touch off.

															I respectfully dissent.

															[ Footnote 2/1 ]

															The Superior Court's entire explanation for its decision to
grant the motion to strike reads as follows:

															"However, a careful rereading of the Agins case
persuades the Court that, when an ordinance, even a non-zoning
ordinance, deprives a person of the total use of his lands, his
challenge to the ordinance is by way of declaratory relief, or
possibly mandamus."

															App. 26.

															[ Footnote 2/2 ]

															The Court of Appeal described the Agins case in this
way:

															"In Agins v. City of Tiburon (1979), 24 Cal. 3d
266 , the plaintiffs filed an action for damages in inverse
condemnation and for declaratory relief against the City of
Tiburon, which had passed a zoning ordinance in part for 'open
space' that would have permitted a maximum of five or a minimum of
one dwelling units on the plaintiffs' five acres. A demurrer to
both causes of action was sustained, and a judgment of dismissal
was entered. The California Supreme Court affirmed the dismissal,
finding that the ordinance did not, on its face, 'deprive the
landowner of substantially an reasonable use of his property,'
( Agins, supra, 24 Cal.3d at p. 277), and did not
'unconstitutionally interfere with plaintiff's entire use of the
land or impermissibly decrease its value' ( ibid. ). The
Supreme Court further said that 'mandamus or declaratory relief,
rather than inverse condemnation, [was] the appropriate relief
under the circumstances.' ( Ibid. )."

															App. to Juris. Statement A14.

															[ Footnote 2/3 ]

															"The familiar rule of appellate court procedure in federal
courts [is] that, without a cross-petition or appeal, a respondent
or appellee may support the judgment in his favor upon grounds
different from those upon which the court below rested its
decision." McGoldrick v. Compagnie Generale, 309 U.
S. 430 , 309 U. S. 434 (1940), citing United States v. American Railway Express
Co., 265 U. S. 425 , 265 U. S. 435 (1924); see also Dandridge v. Williams, 397 U.
S. 471 , 397 U. S.
475 -476, n. 6 (1970). It is also well settled that this
Court is not bound by a state court's determination (much less an
assumption) that a complaint states a federal claim. See Staub
v. City of Baxley, 355 U. S. 313 , 355 U. S. 318 (1968); First National Bank of Guthrie Center v. Anderson, 269 U. S. 341 , 269 U. S. 346 (1926). Especially in the takings context, where the details of the
deprivation are so significant, the economic drain of litigation on
public resources is "too great to permit cases to go forward
without a more substantial indication that a constitutional
violation may have occurred." Pace Resources, Inc. v.
Shrewsbury Township, 808 F.2d 1023, 1026 (CA3), cert.
denied, post p. 906.

															[ Footnote 2/4 ] See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 480 U. S.
485 -493 (1987) (coal mine subsidence); Goldblatt v.
Hempstead, 369 U. S. 590 (1962) (rock quarry excavation); Miller v. Schoene, 276 U. S. 272 (1928) (infectious tree disease); Hadacheck v. Sebastian, 239 U. S. 394 (1915) (emissions from factory); Mugler v. Kansas, 123 U. S. 623 (1887) (intoxicating liquors); see also Penn Central
Transportation Co. v. New York City, 438 U.
S. 104 , 438 U. S. 145 (1978) (REHNQUIST, J., dissenting) ("The question is whether the
forbidden use is dangerous to the safety, health, or welfare of
others"). Many state courts have reached the identical conclusion. See Keystone Bituminous, supra, at 480 U. S. 492 ,
n. 22 (citing cases).

															In Keystone Bituminous, we explained that one of the
justifications for the rule that health and safety regulation
cannot constitute a taking is that individuals hold their property
subject to the limitation that they not use it in dangerous or
noxious ways. 480 U.S. at 480 U. S. 491 ,
n. 20. The Court's recent decision in United States v. Cherokee
Nation of Oklahoma, 480 U. S. 700 (1987), adds support to this thesis. There, the Court reaffirmed
the traditional rule that, when the United States exercises its
power to assert a navigational servitude it does not "take"
property because the damage sustained results "from the lawful
exercise of a power to which the interests of riparian owners have
always been subject." Id. at 480 U. S.
704 .

															[ Footnote 2/5 ] See generally Plater, The Takings Issue in a Natural
Setting: Floodlines and the Police Power, 52 Tex.L.Rev. 201 (1974);
F. Bosselman, D. Callies, & J. Banta, The Taking Issue 147-155
(1973).

															[ Footnote 2/6 ]

															It is proper to take judicial notice of the ordinance. It
provides, in relevant part:

															" ORDINANCE NO. 11,855." "An interim ordinance temporarily prohibiting the construction,
reconstruction, placement or enlargement of any building or
structure within any portion of the interim flood protection area
delineated within Mill Creek, vicinity of Hidden Springs, declaring
the urgency thereof and that this ordinance shall take immediate
effect."

															"The Board of Supervisors of the County of Los Angeles does
ordain as follows:"

															" * * * *" "Section 4. Studies are now under way by the Department of
Regional Planning in connection with the County Engineer and the
Los Angeles County Flood Control District, to develop permanent
flood protection areas for Mill Creek and other specific areas as
part of a comprehensive flood plain management project. Mapping and
evaluation of flood data has progressed to the point where an
interim flood protection area in Mill Creek can be designated.
Development is now occurring which will encroach within the limits
of the permanent flood protection area and which will be
incompatible with the anticipated uses to be permitted within the
permanent flood protection area. If this ordinance does not take
immediate effect, said uses will be established prior to the
contemplated ordinance amendment, and once established may continue
after such amendment has been made because of the provisions of
Article 9 of Chapter 5 of Ordinance No. 1494."

															"By reason of the foregoing facts this ordinance is urgently
required for the immediate preservation of the public health and
safety, and the same shall take effect immediately upon passage
thereof."

															App. to Juris. Statement 31-32.

															[ Footnote 2/7 ]

															Because the complaint did not pray for an injunction against
enforcement of the ordinance, or a declaration that it is invalid,
but merely sought monetary relief, it is doubtful that we have
appellate jurisdiction under 28 U.S.C. § 1257(2). Section 1257(2)
provides:

															"(2) By appeal, where is drawn in question the validity of a
statute of any state on the ground of its being repugnant to the
Constitution, treaties or laws of the United States, and the
decision is in favor of its validity."

															Even if we do not have appellate jurisdiction, however,
presumably the Court would exercise its certiorari jurisdiction
pursuant to 28 U.S.C. § 1257(3).

															[ Footnote 2/8 ]

															In United States v. Dow, 357 U. S.
17 (1958), the United States had "entered into physical
possession and began laying the pipeline through the tract." Id. at 357 U. S. 19 . In Kimball Laundry Co. v. United States, 338 U. S.
1 (1949), the United States Army had taken possession of
the laundry plant, including all "the facilities of the company,
except delivery equipment." Id. at 338 U. S. 3 . In United States v. Petty Motor Co., 327 U.
S. 372 (1946), the United States acquired by
condemnation a building occupied by tenants and ordered the tenants
to vacate. In United States v. General Motors Corp., 323 U. S. 373 (1945), the Government occupied a portion of a leased building.

															[ Footnote 2/9 ]

															The Court makes only a feeble attempt to explain why the
holdings in Agins and Danforth are not
controlling here. It is tautological to claim that the cases stand
for the "unexceptional proposition that the valuation of property
which has been taken must be calculated as of the time of the
taking. " Ante, at 482 U. S. 320 (emphasis added). The question in Danforth was when the
taking occurred. The question addressed in the relevant portion of Agins was whether the temporary fluctuations in value
themselves constituted a taking. In rejecting the claims in those
cases, the Court necessarily held that the temporary effects did
not constitute taking of their own right. The cases are therefore
directly on point here. If even the temporary effects of a decision
to condemn, the ultimate taking, do not ordinarily constitute a
taking in and of themselves, then, a fortiori, the
temporary effects of a regulation should not.

															[ Footnote 2/10 ]

															Whether delays associated with a judicial proceeding that
terminates with a holding that a regulation was not authorized by
state law would be a "normal delay" or a temporary taking depends,
I suppose, on the unexplained rationale for the Court's artificial
distinction.

															[ Footnote 2/11 ]

															"[T]he Constitution measures a taking of property not by what a
State says, or what it intends, but by what it does." Hughes v.
Washington, 389 U. S. 290 , 389 U. S. 298 (1967) (Stewart, J., concurring). The fact that the effects of the
regulation are stopped by judicial, as opposed to administrative,
decree should not affect the question whether compensation is
required.

															[ Footnote 2/12 ]

															States may surely provide a forum in their courts for review of
general challenges to zoning ordinances and other regulations. Such
a procedure then becomes part of the "normal" process. Indeed, when
States have set up such procedures in their courts, we have
required resort to those processes before considering takings
claims. See Williamson County Regional Planning Comm'n v.
Hamilton Bank, 473 U. S. 172 (1986).

															[ Footnote 2/13 ] See, e.g., Mandelker, Land Use Takings: The
Compensation Issue, 8 Hastings Const.L.Q. 491 (1981); Williams,
Smith, Siemon, Mandelker, & Babcock, The White River Junction
Manifesto, 9 Vt.L.Rev.193, 233-234 (1984); Berger & Kanner,
Thoughts on the White River Junction Manifesto: A Reply to the
"Gang of Five's" Views on Just Compensation for Regulatory Taking
of Property, 19 Loyola (LA) L.Rev. 685, 704-712 (1986); Comment,
Just Compensation or Just Invalidation: The Availability of a
Damages Remedy in Challenging Land Use Regulations, 29 UCLA L.Rev.
711, 725-726 (1982).

															[ Footnote 2/14 ]

															For this same reason, the parties' and amici's conflicting claims about whether this Court's cases, such as Hurley v. Kincaid, 285 U. S. 95 (1932), provide that compensation is a less intrusive remedy than
invalidation are not relevant here.

															[ Footnote 2/15 ]

															The California Supreme Court's discussion of the policy
implications in Agins is entirely consistent with the view
that the court was choosing between remedies (invalidation or
compensation) with respect to the permanent effect of a regulation,
and was not dealing with the temporary taking question at all.
Subsequent California Supreme Court cases applying the Agins rule do not shed light on this question.

															[ Footnote 2/16 ]

															In the habeas corpus context, we have held that a prisoner has
not exhausted his state remedies when the state court refuses to
consider his claim because he has not sought the appropriate state
remedy. See Woods v. Nierstheimer, 328 U.
S. 211 , 328 U. S. 216 (1946); Ex parte Hawk, 321 U. S. 114 ,
116-117 (1944). This rule should be applied with equal force
here.

															[ Footnote 2/17 ]

															It is no answer to say that "[a]fter all, if a policeman must
know the Constitution, then why not a planner?" San Diego Gas
& Electric Co. v. San Diego, 450 U.
S. 621 , 450 U. S. 661 ,
n. 26 (1981) (BRENNAN, J., dissenting). To begin with, the Court
has repeatedly recognized that it itself cannot establish any
objective rules to assess when a regulation becomes a taking. See Hodel v. Irving, 481 U. S. 704 , 481 U. S.
713 -714 (1987); Andrus . Allard, 444 U. S.
51 , 444 U. S. 65 (1979); Penn Central, 438 U.S. at 438 U. S.
123 -124. How then can it demand that land planners do
any better? However confusing some of our criminal procedure cases
may be, I do not believe they have been as open-ended and
standardless as our regulatory takings cases are. As one
commentator concluded:

															"The chaotic state of taking law makes it especially likely that
availability of the damages remedy will induce land use planning
officials to stay well back of the invisible line that they dare
not cross."

															Johnson, Compensation for Invalid Land-Use Regulations, 15
Ga.L.Rev. 569, 594 (1981); see also Sallet, The Problem of
Municipal Liability for Zoning and Land-Use Regulation, 31
Cath.U.L.Rev. 465, 478 (1982); Charles v. Diamond, 41
N.Y.2d 318, 331-332, 360 N.E.2d 1295, 1305 (1977); Allen v.
City and County of Honolulu, 58 Haw. 432, 439, 571 P.2d 328 ,
331 (1977).

															Another critical distinction between police activity and land
use planning is that not every missed call by a policeman gives
rise to civil liability; police officers enjoy individual immunity
for actions taken in good faith. See Harlow v. Fitzgerald, 457 U. S. 800 (1982); Davis v. Scherer, 468 U.
S. 183 (1984). Moreover, municipalities are not subject
to civil liability for police officers' routine judgment errors. See Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). In the land regulation context, however, I am afraid that
any decision by a competent regulatory body may establish a "policy
or custom" and give rise to liability after today.

Summary:
Here is a summary of the case:

The First English Evangelical Lutheran Church of Glendale sued the County of Los Angeles, California, after a flood destroyed the church's campground, "Lutherglen," in 1978. The church alleged that an interim ordinance passed by the county in 1979, which prohibited construction or reconstruction in a designated flood protection area, denied them all use of their property and sought to recover damages through inverse condemnation.

The California Court of Appeal, relying on the California Supreme Court's decision in Agins v. Tiburon, ruled that the church could not maintain an inverse condemnation suit based on a "regulatory" taking and that compensation was not required until the ordinance was deemed excessive and the government chose to continue it.

The U.S. Supreme Court held that the case properly presented the claim that the Agins case improperly held that the Just Compensation Clause of the Fifth Amendment does not require compensation for "temporary" regulatory takings, which are ultimately invalidated by the courts. The Court isolated the remedial question for consideration, whether compensation is required for regulatory takings that are later invalidated.

The Court's decision discusses the distinction between choosing between remedies (invalidation or compensation) for the permanent effect of a regulation and dealing with temporary takings. It also highlights the challenges of establishing objective rules for assessing when a regulation becomes a taking and the potential impact on land-use planning officials.