landgate, inc., et al., plaintiffs and appellants, v ... · classified to california digest of...

LANDGATE, INC., et al., Plaintiffs and Appellants, v. CALIFORNIA COASTALCOMMISSION, Defendant and Appellant.

No. S059847.

SUPREME COURT OF CALIFORNIA

17 Cal. 4th 1006; 953 P.2d 1188; 73 Cal. Rptr. 2d 841; 1998 Cal. LEXIS 2461; 98 Cal.Daily Op. Service 3200; 98 Daily Journal DAR 4453; 28 ELR 21236

April 30, 1998, Decided

SUBSEQUENT HISTORY: As Modified April 30,1998. Certiorari Denied October 5, 1998, 67 U.S.L. Week3235.

PRIOR HISTORY: Superior Court of Los AngelesCounty. Super. Ct. No. BC024391. Richard C. Hubbell,Judge.

DISPOSITION: For all the foregoing reasons, thejudgment of the Court of Appeal is reversed and thecause is remanded to the Court of Appeal. The Court ofAppeal shall remand to the trial court with directions togrant the Commission's motion for summary judgmentagainst Landgate's takings claim and to deny Landgate'smotion for summary adjudication.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant CaliforniaCoastal Commission challenged the judgment of theCalifornia Court of Appeal that affirmed the summaryjudgment entered by the trial court in appelleedeveloper's favor. Appellant maintained that a delay inappellee's development occasioned by appellant'sregulatory process did not constitute a taking of propertyso as to require it to compensate appellee.

OVERVIEW: Appellant California Coastal Commissiondenied appellee developer's application to change a lot

line and build on land it owned. Subsequently, a courtruled for appellee on the lot line issue and orderedappellant to reconsider appellee's application. Appelleeagreed to changes in its plans and appellant approved theamended application. Appellee filed an action againstappellant to recover for what it argued was a temporarytaking of its property during the application controversywhen it was deprived of all economically viable use of itsland. The trial court granted summary judgment forappellee on its taking claims and awarded it attorney'sfees. The trial court denied appellant's motion forsummary judgment. The intermediate appellate courtaffirmed. The court reversed. The court undertook anextensive review of United States Supreme Court andother decisions on the taking issue. The court observedthat virtually every court that has examined the issue hasconcluded that a regulatory mistake that results in delaydoes not, by itself, amount to a taking. The court ruledthat such delay is an incident of property ownership andis not a taking.

OUTCOME: The court ruled that was no taking ofappellee developer's property that required compensation.The court reversed the judgment of the intermediateappellate court and remanded with directions that thecause be returned to the trial court with directions to grantappellant California Coastal Commission's motion forsummary judgment against the appellee's takings claimand to deny appellee's motion for summary judgment.

LexisNexis(R) Headnotes

Civil Procedure > Appeals > Standards of Review > DeNovo Review[HN1] When a case comes to the court after a grant ofsummary adjudication motion we undertake independentreview of the record to determine whether a triable issueof fact exists.

Environmental Law > Zoning & Land Use > EminentDomain ProceedingsReal Property Law > Inverse Condemnation >Constitutional ViolationsReal Property Law > Inverse Condemnation >Regulatory Takings[HN2] In determining whether a government regulationworks a taking of property under the Fifth Amendment tothe United States Constitution, U.S. Const. amend. V, thecourts generally eschew any set formula for determininghow far is too far, preferring to engage in essentially adhoc, factual inquiries.

Constitutional Law > Bill of Rights > FundamentalRights > Eminent Domain & TakingsReal Property Law > Inverse Condemnation >Regulatory TakingsReal Property Law > Zoning & Land Use >Constitutional Limits[HN3] A requirement that a person obtain a permit beforeengaging in a certain use of his or her property does notitself "take" the property in any sense: after all, the veryexistence of a permit system implies that permission maybe granted, leaving the landowner free to use the propertyas desired. Stated in other terms, whereas the FifthAmendment's, U.S. Const. amend. V, just compensationprovision is designed to bar Government from forcingsome people alone to bear public burdens which, in allfairness and justice, should be borne by the public as awhole, a rational permit regulation scheme is imposed onthe public as a whole to ensure the orderly developmentof real property, benefiting as well as burdening propertyowners.

Real Property Law > Inverse Condemnation >Constitutional ViolationsReal Property Law > Inverse Condemnation >

Regulatory TakingsReal Property Law > Inverse Condemnation >Remedies[HN4] That an error by a governmental agency in thedevelopment approval process does not necessarilyamount to a taking even if the error in some waydiminishes the value of the subject property, any morethan the commission of state law error during a criminaltrial is an automatic violation of the due process clause. Ifthe error is of a particular constitutional type--the passageand enforcement of a law or regulation that deprivesproperty of all value--then such an error is a compensabletaking. But government land use regulations anddecisions which, despite their ultimately determinedstatutory defects, are part of a reasonable regulatoryprocess designed to advance legitimate governmentinterests, are not takings of property.

Real Property Law > Eminent Domain Proceedings >Constitutional Limits & Rights > TakingsReal Property Law > Eminent Domain Proceedings >ValuationReal Property Law > Zoning & Land Use >Comprehensive Plans[HN5] Mere fluctuations in value during the process ofgovernmental decisionmaking, absent extraordinarydelay, are incidents of ownership. They cannot beconsidered as a taking in the constitutional sense.

Governments > Local Governments > Claims By &AgainstGovernments > State & Territorial Governments >Claims By & AgainstReal Property Law > Zoning & Land Use >Comprehensive Plans[HN6] The principle that a government agency will notbe liable in damages for state law errors committed in thedevelopment approval process is congruent with Cal.Gov't Code § 818.4, which provides that a public entitycannot be held liable for an injury caused by the issuance,denial, suspension or revocation of, or by the failure orrefusal to issue, deny, suspend or revoke, any permit,license, certificate, approval, order, or similarauthorization where the public entity or an employee ofthe public entity is authorized by enactment to determinewhether or not such authorization should be issued,denied, suspended or revoked.

17 Cal. 4th 1006, *; 953 P.2d 1188, **;

73 Cal. Rptr. 2d 841, ***; 1998 Cal. LEXIS 2461

Administrative Law > Judicial Review > Standards ofReview > Substantial EvidenceReal Property Law > Zoning & Land Use > JudicialReview[HN7] The proper inquiry is not into the subjectivemotive of the government agency, but whether there is,objectively, sufficient connection between the land useregulation in question and a legitimate governmentalpurpose so that the former may be said to substantiallyadvance the latter. This type of objective inquiry isconsistent with the principle that courts do not delve intothe individual purposes of decisionmakers in aquasi-adjudicative proceeding, but rather look to thefindings made by the government agency and determinewhether these are based on substantial evidence.

Administrative Law > Judicial Review > Standards ofReview > General OverviewEnvironmental Law > Zoning & Land Use > JudicialReviewReal Property Law > Zoning & Land Use > JudicialReview[HN8] Judicial review of governmental conditionsimposed upon development will be more deferentialwhen the conditions are simply restrictions on land useand not requirements that the property owner convey aportion of his property.

Constitutional Law > Bill of Rights > FundamentalRights > Eminent Domain & TakingsReal Property Law > Inverse Condemnation >ProcedureReal Property Law > Inverse Condemnation >Regulatory Takings[HN9] The mere assertion of regulatory jurisdiction by agovernmental body does not constitute a regulatorytaking.

Administrative Law > Judicial Review > Reviewability >General OverviewConstitutional Law > Bill of Rights > FundamentalRights > Eminent Domain & TakingsReal Property Law > Inverse Condemnation > GeneralOverview[HN10] A government agency may deny a developmentpermit when the reasonable conditions imposed ondevelopment are not met without that denial constitutinga taking. An essential prerequisite to the assertion of a

takings claim is a final and authoritative determination ofthe type and intensity of development legally permittedon the subject property. If a would-be developer fails tomeet legitimate conditions for obtaining a developmentpermit, then a government agency's refusal to issue sucha permit would by no means be a final and authoritativedetermination of the intensity of development legallypermitted on the subject property, but merely aconditional denial. And the imposition of a developmentcondition is not a constitutional violation merely becausethat condition is subsequently shown to have beenerroneously imposed.

SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY

The California Coastal Commission denied aproperty owner's application for a coastal developmentpermit to build a house and related structures on its lot,based on concerns regarding building height and gradingas well as the commission's failure to approve a lot lineadjustment that had previously been approved by thecounty. The commission subsequently denied thelandowner's application for commission approval of thelot line adjustment and refused to reconsider thelandowner's application. Subsequent litigation resulted inan unpublished appellate decision that held that thecommission did not have jurisdiction over the lot lineadjustment. The ultimate result for the landowner was atwo-year delay in the permit approval process. The trialcourt granted the landowner's petition for a writ ofmandate and ordered the commission to reconsider theapplication, and entered judgment in an inversecondemnation action in favor of the landowner. (SuperiorCourt of Los Angeles County, No. BC024391, RichardC. Hubbell, Judge.) The Court of Appeal, Second Dist.,Div. One, No. B084315, affirmed.

The Supreme Court reversed and remanded to theCourt of Appeal to remand to the trial court withdirections to grant the commission's motion for summaryjudgment against the landowner's takings claim and todeny the landowner's motion for summary adjudication.The court held that the two-year delay in the developmentprocess did not constitute a temporary taking of theproperty (U.S. Const., 5th Amend.). The commission'sdenial of the landowner's permit application advancedlegitimate governmental interests in minimizing erosionand unsightly development in the coastal area.

17 Cal. 4th 1006, *; 953 P.2d 1188, **;


Furthermore, the commission's legally erroneous decisiondid not constitute a taking. The commission's position onthe lot line adjustment issue was based on a reasonableconstruction of the term "development" in Pub.Resources Code, § 30106. When the commissiondetermined that the lot was not legal, it could legitimatelylitigate the lot line question without offending the takingsclause, and the fact that the landowner had to resort to ajudicial determination did not constitute a per setemporary taking. (Opinion by Mosk, J., with George, C.J., Kennard and Werdegar, JJ., concurring. Dissentingopinions by Chin and Brown, JJ., with Baxter, J.,concurring in each.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTESClassified to California Digest of Official Reports

(1) Eminent Domain § 18--Compensation--WhatConstitutes Regulatory Taking. --A determinationwhether a government regulation works a taking ofproperty under U.S. Const., 5th Amend., is essentially anad hoc, factual inquiry. The economic impact of theregulation on the claimant and, particularly, the extent towhich the regulation has interfered with distinctinvestment-backed expectations are relevantconsiderations. The Fifth Amendment is violated whenland use regulation does not substantially advancelegitimate state interests. There are at least two discretecategories of regulatory action that are compensablewithout case-specific inquiry into the public interestadvanced in support of the restraint. The firstencompasses regulations that compel the property ownerto suffer a physical invasion of his or her property. Ingeneral (at least with regard to permanent invasions), nomatter how minute the intrusion, and no matter howweighty the public purpose behind it, compensation isrequired. The second situation in which categoricaltreatment is appropriate is when regulation denies alleconomically beneficial or productive use of land.

(2) Eminent Domain § 20--Compensation--TemporaryInjury or Interference. --Government regulation thatdeprives a plaintiff of all economically beneficial use ofits property constitutes a temporary taking of the propertyfor which compensation must be paid. Temporary takingsare not different in kind from permanent takings. Thus,when the government's activities have already worked ataking of all use of property, no subsequent action by the

government can relieve it of the duty to providecompensation for the period during which the taking waseffective. However, quite different questions arise in thecase of normal delays in obtaining building permits,changes in zoning ordinances, variances, and the like; inthose cases, temporary deprivation may not constitute ataking. The requirement that a person obtain a permitbefore engaging in a certain use of his or her propertydoes not itself take the property in any sense. While thejust compensation provision of U.S. Const., 5th Amend.,is designed to bar the government from forcing somepeople alone to bear public burdens which, in all fairnessand justice, should be borne by the public as a whole, arational permit regulation scheme is imposed on thepublic as a whole to ensure the orderly development ofreal property, benefiting as well as burdening propertyowners.

(3) Eminent Domain § 18--Compensation--WhatConstitutes Regulatory Taking--Necessity of FinalGovernment Decision. --The question whether propertyhas been taken, requiring compensation under U.S.Const., 5th Amend., is not ripe for decision until agovernment agency has rendered a final decision on theuse to which the property in question may be put.Although the question of what constitutes a taking forpurposes of the Fifth Amendment has proved to be aproblem of considerable difficulty, among the factors ofparticular significance in the inquiry are the economicimpact of the challenged action and the extent to which itinterferes with reasonable investment-backedexpectations. Those factors cannot be evaluated until theadministrative agency has arrived at a final, definitiveposition regarding how it will apply the regulations atissue to the particular land in question.

(4a) (4b) (4c) (4d) Eminent Domain §20--Compensation--Temporary Injury orInterference--Delay in Permit Approval Process--Dueto Legally Erroneous Decision of GovernmentAgency. --In an inverse condemnation action brought bya landowner whose application for a coastal developmentpermit was denied by the California Coastal Commission,the trial court erred in finding that the resulting two-yeardelay in the development process constituted a temporarytaking of the property (U.S. Const., 5th Amend.). Thecommission's denial of the landowner's permitapplication, based on concerns regarding building heightand grading as well as the commission's failure toapprove a lot line adjustment that had been previously

17 Cal. 4th 1006, *; 953 P.2d 1188, **;


approved by the county, advanced legitimategovernmental interests in minimizing erosion andunsightly development in the coastal area. Even thoughsubsequent litigation resulted in an unpublished appellatedecision that held that the commission did not havejurisdiction over the lot line adjustment, the commission'slegally erroneous decision did not constitute a taking.Furthermore, the commission's position on the lot lineadjustment issue was based on a reasonable constructionof the term "development" in Pub. Resources Code, §30106. When the commission determined that the lot wasnot legal, it could legitimately litigate the lot linequestion without offending the takings clause, and thefact that the landowner had to resort to a judicialdetermination did not constitute a per se temporarytaking.

[See 8 Witkin, Summary of Cal. Law (9th ed. 1988)Constitutional Law, § 938.]

(5) Eminent Domain § 18--Compensation--WhatConstitutes Regulatory Taking--Delay in Use andLoss of Property Value Due to CondemnationProceeding. --When the government initiatescondemnation proceedings against an undeveloped tractof land, thereby bringing the development process to astandstill, and later abandons such proceedings, it is notliable under the takings clause (U.S. Const., 5th Amend.),even when the proceedings cause substantial delay in thedevelopment approval process and lead to losses in theproperty's value.

(6a) (6b) Eminent Domain § 18--Compensation--WhatConstitutes Regulatory Taking--LegitimateGovernmental Purpose. --In determining whethergovernment regulation has resulted in a taking ofproperty requiring compensation under U.S. Const., 5thAmend., the proper inquiry is not into the subjectivemotive of the government agency, but whether there is,objectively, sufficient connection between the land useregulation in question and a legitimate governmentalpurpose so that the latter may be said to substantiallyadvance the former. This type of objective inquiry isconsistent with the principle that courts do not delve intothe individual purposes of decisionmakers in aquasi-adjudicative proceeding, but rather look to thefindings made by the government agency and determinewhether these are based on substantial evidence.

COUNSEL: Jeffer, Mangels, Butler & Marmaro,

Benjamin M. Reznik, John M. Bowman, Monica Witt,Reznik & Reznik, Fred N. Gaines, Kevin M. Kemper andL. Elizabeth Strahlstrom for Plaintiffs and Appellants.

Paul B. Campos, James S. Burling and Stephen E.Abraham as Amici Curiae on behalf of Plaintiffs andAppellants.

Daniel E. Lungren, Attorney General, Roderick E.Walston, Chief Assistant Attorney General, Jan S.Stevens and Richard M. Frank, Assistant AttorneysGeneral, Peter H. Kaufman and Joseph Barbieri, DeputyAttorneys General, for Defendant and Appellant.

Louise H. Renne, City Attorney San Francisco, AndrewW. Schwartz, Deputy City Attorney, Johanna H. Wald,John D. Echeverria and Enrico G. Nardone as AmiciCuriae on behalf of Defendant and Appellant.

JUDGES: Opinion by Mosk, J., with George, C. J.,Kennard and Werdegar, JJ., concurring. Dissentingopinions by Chin and Brown, JJ., with Baxter, J.,concurring in each.

OPINION BY: MOSK

OPINION

[*1010] [**1189] [***842] MOSK, J.

In First Lutheran Church v. Los Angeles County(1987) 482 U.S. 304, 321 [107 S. Ct. 2378, 2389, 96 L.Ed. 2d 250], 1 the court held that "where thegovernment's activities have [**1190] [***843]already worked a taking of all use of property, nosubsequent action by the government can relieve it of theduty to provide compensation for the period during whicha taking was effective." In so holding, the court cautionedthat the holding did not extend to "the quite differentquestions that would arise in the case of normal delays inobtaining building permits, changes in zoning ordinances,variances, and the like which are not before us." (Ibid.) Inthe present case, we consider whether a delay in theissuance of a development permit partly owing to themistaken assertion of jurisdiction by a governmentagency is a type of "temporary taking" contemplated inFirst English, or if it is more in the nature of a "normaldelay" that does not constitute a taking. The Court ofAppeal held that a temporary taking had indeed occurred.We conclude that the present case falls squarely into thecategory of a normal delay rather than a temporary

17 Cal. 4th 1006, *; 953 P.2d 1188, **;


taking, and therefore reverse the Court of Appeal.

1 The full name of this case is First EnglishLutheran Church of Glendale v. County of LosAngeles. We will hereinafter follow the commonpractice of referring to the case as First English.

I.

Because of the complexities of this case, a somewhatdetailed recitation of the facts is in order. The casecenters on the efforts of plaintiff Landgate, Inc., 2 to builda large home in the Malibu Hills. Landgate's predecessorin interest owned two long, thin parcels or "lots" orientedin a north-south direction. The northern portions weresloped, the southern portions flat. One of the lotscontained a single-family home on the southern portion.The coast lay to the south of these lots.

2 According to Landgate's first amendedcomplaint, Peter and Punte Bogart "owned andcontrolled" Landgate and held a life estate in thesubject property.

In the mid-1980's, the County of Los Angeles (theCounty) planned to provide an east-west road that wouldrun through the two lots. The landowner and the Countyagreed that, in exchange for the owner's dedicatingportions of the parcels for the roadway easement, theCounty would reconfigure the lots into a single, sloped2.45-acre lot north of the road and a single, flat 1.56-acrelot south of the road, each still zoned for a single-familyhome. The County completed the road improvement,designated as De Butts Terrace, and formally approved alot reconfiguration, which was recorded July 5, 1989.

The lots in question are, and at all relevant timeswere, in the coastal zone ( Pub. Resources Code, §30103) and therefore subject to the development [*1011]restrictions imposed by the California Coastal Act of1976 (Coastal Act), Public Resources Code section30000 et seq. The act requires local governments withinthe coastal zone to prepare Local Coastal Programs(LCP's) containing a Land Use Plan (LUP) and a set ofimplementing ordinances designed to promote the act'sobjectives of protecting the coastline and its resourcesand maximizing public access. ( Pub. Resources Code, §30001.5, 30512, 30513.) In general, the act provides that,until a certified LCP is approved by the CaliforniaCoastal Commission (Commission), authority to approvedevelopment lies with the Commission. (Id., § 30519.) At

the time the pertinent events took place, the Commissionhad approved the County's LUP for Malibu but had notyet approved the LCP. Therefore, the Commissionretained jurisdiction over the issuance of coastaldevelopment permits for the area in which the subjectproperty is located.

In October 1990, Landgate bought the slopednorthern lot and received County approval in concept forgrading and building plans for a single-family home to bebuilt on the property. Landgate applied to theCommission for permits to build the house and relatedstructures. Landgate's permit application sought approvalof a 9,036-square-foot home and guest house, aswimming pool and septic tank and 8,500 cubic yards ofgrading. As originally proposed, the house was 44 feetabove existing grade. Before the Commission's initialconsideration of the development, Landgate modified itsproposal by reducing the house to 7,500 square feet,eliminating the guest house and reducing the proposedgrading to 4,300 cubic yards.

At its December 1990 and February 1991 meetings,the Commission was presented with staff reportsobjecting to several aspects of the project. First, staff wasconcerned [**1191] [***844] with visual impacts ofthe house, since it was located next to Escondido Canyon,"a highly scenic area which includes a hiking trail toEscondido Falls. The proposed project is located southand west of Escondido Canyon and is visible from theEscondido Falls Trail and the Escondido Falls." Thepreservation of scenic and recreational resources of thecoastal area is encouraged by both the Coastal Act andthe Malibu LUP. (See Pub. Resources Code, § 30251.)Staff concluded that the visual impact of Landgate'sproposed development would be significant both becauseof its location on the lower, northern lot closer to the trailand falls, and because of the 44-foot height, 9 feet abovethe allowable height contained in the Malibu LUP.

Second, staff found the amount of grading requiredof the proposed project to be objectionable. "In essence,the applicant is creating a large level pad area on ahillside lot, instead of designing the house to conformwith the natural topography." The grading plan wascontrary to the Malibu [*1012] LUP, which called forthe minimization of grading for all new development "toensure the potential negative effects of runoff and erosionon [visual] resources are minimized." Staff found thatthese problems would be alleviated if the house was built

17 Cal. 4th 1006, *1010; 953 P.2d 1188, **1190;

73 Cal. Rptr. 2d 841, ***843; 1998 Cal. LEXIS 2461

on the southern side of De Butts Terrace.

These concerns and objections were inextricablylinked to staff's third concern, that the Commission hadnot approved the lot line adjustment obtained from theCounty by Landgate's predecessor in interest. As noted,prior to the approval of the lot line adjustment, the lengthof the lots ran in a north to south direction standingside-by-side east to west. If the old lots had remained,then development could have been directed to the moretopographically and visually suitable southern portion ofthe property. Staff further concluded that the lot lineadjustment had been illegal. It reached its conclusion asfollows: It first observed that section 30106 of the PublicResources Code contains a broad definition of"development" for which a coastal development permit isnecessary. " 'Development' means, on land, in or underwater, the placement or direction of any solid material orstructure; discharge or disposal of any drenched materialor any gaseous, liquid, solid, or thermal waste; grading,removing, dredging, mining, or extraction of anymaterials; change in the density or intensity of use ofland, including, but not limited to, subdivision pursuantto the Subdivision Map Act . . . and any other division ofland, including lot splits, except where the land divisionis brought about in connection with the purchase of suchland by a public agency for public recreational use . . . ."(Ibid., italics added.) Staff then cited a 1986memorandum from the Attorney General circulated to theCommission concluding that "[a] lot line adjustment is aform of a lot split. In some instances, a lot lineadjustment may be so minor as to warrant theCommission finding that it is de minimis and qualifies fora waiver pursuant to section 30624.7. In other instances alot line adjustment may be such that it does bring about amajor change in the density or intensity of use of land. Insuch a case it would fall within the definition ofdevelopment in section 30106, and would necessarilyrequire a coastal development permit."

The staff report then considered whether the lot lineadjustment in question "involves a major change in thedensity or intensity of land-use." It concluded that while alot line adjustment did not alter the density ofdevelopment it would alter its intensity: "The topographynorth of De Butts Terrace is relatively steep and notsuited to development. This proposed project wouldchange the intensity of land-use in this area by allowingdevelopment of the north side of the road. . . . Staffbelieves that the least environmentally damaging site for

development is on the coastal [i.e. southern] side of DeButts Terrace and that the original lot configuration oflong thin parcels extending across the road should not bealtered."

[*1013] The Commission considered the variousissues raised by staff at its December 13, 1990, meetingand voted to continue the matter because of questionsconcerning the legality of the lot line adjustment.According to the declaration of Landgate'sengineer/representative in support of its motion(Petrovsky Declaration), "once the lot line adjustmentissue was raised . . . staff would not negotiate [**1192][***845] with regard to issues of the size of home,grading, etc. Instead, the legality of the lot became thefocus of their attention." Landgate reapplied for a coastaldevelopment permit proposing the same project asdescribed above, but adding a request for Commissionapproval of the County lot line adjustment.

At its February 1991 meeting the Commissiondenied Landgate's application. It adopted staff findingsthat the proposed house and related structures wouldproduce excessive soil, grading, and visual degradation.3 Immediately after the vote, Commissioner Glickfeldcommented on the County's perceived unwillingness tocomply with the Coastal Act: "I really regret the situationthat this applicant has been put in because of Los AngelesCounty's refusal to comply with the Coastal Act and Ihope that . . . our staff counsel could be directed tocommunicate that very clearly with Los Angeles County,bring their response back to us and pursue, if necessary,litigation to insist that the County of Los Angeles complywith the law in this matter." The chief counsel stated thathe would prepare a letter to the County.

3 According to Commission regulations, a voteby the Commission that is "consistent with [the]staff recommendation and not otherwise modified,. . . shall be deemed to adopt the findings andconclusions recommended by the staff." ( Cal.Code Regs., tit. 14, § 13092, subd. (d).) Thus, theCommission, in denying the applicationconsistent with the staff report, is deemed to haveadopted the staff's proposed findings discussedabove.

In March 1991, Landgate filed a petition for writ ofmandate against the Commission asserting that theCommission had no jurisdiction over the lot lineadjustment. The petition was conjoined with a complaint

17 Cal. 4th 1006, *1012; 953 P.2d 1188, **1191;


asserting a taking of property without just compensationand a denial of civil rights, seeking damages anddeclaratory relief. The mandate petition and takingscomplaint were severed, with the latter reserved for lateradjudication.

Meanwhile, in April 1991, the Commission heardLandgate's request for reconsideration of its project.Grounds for reconsideration of an application exist when"there is relevant new evidence which, in the exercise ofreasonable diligence, could not have been presented atthe hearing . . . or that an error of fact or law has occurredwhich has the potential of altering the initial decision." (Pub. Resources Code, § 30627, subd. (b)(3).) At thatmeeting, Landgate's representative presented a newversion of the proposed residence that would be only 32feet above the existing natural grade, would have[*1014] 1,000 cubic yards of grading, and would makeother changes in order to conform the appearance of thehouse to its natural surroundings. Commission staffopined that the new proposal was more appropriatelypresented to the Commission as a new project, but did notconstitute "new evidence" or "error of fact or law" thatwould be grounds for reconsidering its February 1991denial of the project. Staff also told the Commission that"part of the basis for your denial [of the project] was a lotline adjustment and . . . we told them even if they makethese modifications we'll still recommend denial." TheCommission's legal counsel told the Commission:"Without a lot line adjustment some of these revisions areI think irrelevant." HE ALSO STATED: "This projectdoes not work, if you please, without that lot lineadjustment." He further stated that, in light of the actionthat Landgate had filed before the request forreconsideration contesting the Commission's jurisdictionover the lot line adjustment, "my advice would be tocontinue to maintain the position you have maintainedbefore and allow the court system to determine thedispute that presently exists between the Commission and[Landgate] with regard to that." The Commission votedto deny reconsideration.

The above-mentioned litigation proceeded and inOctober 1991 the trial court granted Landgate's petitionfor writ of mandate. Specifically, the trial court set asidethe Commission's action of February 1991 denyingLandgate's application and ordered the Commission toreconsider the application. The court found that, in viewof the factual circumstances in this case, the definition of"development" as found in Public Resources Code

section 30106 "does not include the lot line adjustmentapproved and recorded by the County of Los Angeles in1989 with regard to the subject property. Therefore,[**1193] [***846] upon remand to the Commission,the Commission must consider [Landgate's] applicationwithout any reference or consideration of a lot lineadjustment. The Commission is to consider the subjectproperty to be a legal lot." The court did not order theapproval of any particular development proposal.

The Court of Appeal affirmed the trial court in anunpublished decision in December 1992. In arriving at itsconclusion, the court found significant the fact thatLandgate had purchased a lot that had been approved bythe County and had been recorded, that the Commissionhad approved the construction of the road, De ButtsTerrace, that made the then existing lot configurationimpractical and necessitated the lot line adjustment, andthat the Commission's position with respect to the lot lineadjustment would render Landgate's property valueless.In essence, it held that Public Resources Code section30106 did not authorize the Commission to invalidate alegally recorded lot line adjustment to which theCommission, by its actions and [*1015] inaction, hadgiven tacit approval, when an innocent purchaser wouldstand to lose all value from its lot from such invalidation.The court also questioned the Commission's assertion thatany building on Landgate's lot was inconsistent with theCoastal Act, citing other development north of De ButtsTerrace that the Commission had approved. In itsconclusion, it emphasized that the Commission "retainedits ability to regulate and approve any proposed buildingon the lot."

In February 1993, the Commission again consideredLandgate's project, which had been modified by reducinggrading to 2,893 cubic square yards, by reducing heightto 35 feet above existing grade, and by reducing the fillslope, among other changes. It required further changesin the project to address the visual impacts and erosionproblems that it had earlier found to be objectionable.Specifically, it imposed a height limitation of 28 feetabove existing grade on the proposed residence, andrequired a drainage plan as well as color restrictions andlandscape requirements consistent with the scenicpreservation with which the Commission was concerned.Landgate did not challenge these conditions.

Subsequently, Landgate moved for summaryadjudication of its still-unresolved takings claim. It

17 Cal. 4th 1006, *1013; 953 P.2d 1188, **1192;


contended that the Commission's erroneous assertion ofpermit jurisdiction over the lot line adjustment preventedit from making any economically viable use of itsproperty for the period prior to the Commission'sapproval of its project in February 1993. TheCommission moved for summary judgment, contendingthat its jurisdictional error did not constitute a taking ofLandgate's property. The trial court granted Landgate'smotion, ruling that the Commission had temporarilytaken Landgate's property from February 1991 toFebruary 1993. In its statement of decision, the trial courtdeclared that "Landgate's third cause of action for takingof property without just compensation . . . is meritoriousas a matter of law . . . because Landgate has beendeprived, at least temporarily, of all economically viableor productive use of its property insofar as Landgate, atleast temporarily, could not legally obtain any validpermits or approvals to construct any project on itsproperty as a result of the Commission's actions." Thetrial court also denied the Commission's motion forsummary judgment. After a bench trial on the issue ofdamages, the trial court awarded takings damages of $155,657 for the period between February 1991 andFebruary 1993. The Commission appealed the grant ofsummary adjudication and the award of attorney fees.Landgate filed an appeal contesting the amount ofdamages and filed a separate notice of appeal from thetrial court's award of costs and attorney fees.

The Court of Appeal affirmed the trial court's grantof summary adjudication in Landgate's favor. It appearedto accept the Commission's assertion [*1016] thatreasonable mistakes made by a government agency in thedevelopment approval process do not necessarilyconstitute takings. But, as it stated: "[W]hat we cannotaccept is the Commission's characterization of thetreatment of Landgate here as the reasonable result of a'mistake.' Nothing in the record suggests that the lot lineadjustment issue [***847] arose out of [**1194]anything other than the Commission's ongoingjurisdictional spat with the County of Los Angelescombined with a desire to prevent Landgate frombuilding on its parcel. Instead, the overwhelming sense ofthe record is that by its insistence that the lot itself wasillegal, the Commission put Landgate in a situation whichwas not of its own making and which Landgate could donothing to cure. In short, this is not a case of bureaucraticbungling, but the declaration of war betweengovernmental behemoths in which the inevitable casualtywas to be a noncombatant, Landgate." It also affirmed the

trial court's award of damages. We granted review toaddress the important question of whether theCommission's apparently mistaken assertion ofjurisdiction of the lot line adjustment in this case led to atemporary taking of Landgate's property. 4

4 [HN1] We note at the outset that this casecomes to us after a grant of Landgate's summaryadjudication motion on its claim that its propertywas taken without just compensation and a denialof the Commission's motion for summaryjudgment. Thus, we undertake independentreview of the record to determine whether atriable issue of fact exists as to the takings claim. (Engalla v. Permanente Medical Group, Inc.(1997) 15 Cal. 4th 951, 973, fn. 7 [64 Cal. Rptr.2d 843, 938 P.2d 903].)

II.

A.

(1) Before addressing the present issue, we brieflysummarize pertinent takings jurisprudence. [HN2] Indetermining whether a government regulation works ataking of property under the Fifth Amendment to theUnited States Constitution, the United States SupremeCourt has generally eschewed any "set formula" fordetermining how far is too far, preferring to engage in "'essentially ad hoc, factual inquiries.' " ( Lucas v. SouthCarolina Coastal Council (1992) 505 U.S. 1003, 1015[112 S. Ct. 2886, 2893, 120 L. Ed. 2d 798] (Lucas).) Thecourt has stated that the "economic impact of theregulation on the claimant and, particularly, the extent towhich the regulation has interfered with distinctinvestment-backed expectations are, of course, relevantconsiderations." ( Penn Central Transp. Co. v. New YorkCity (1978) 438 U.S. 104, 124 [98 S. Ct. 2646, 2659, 57L. Ed. 2d 631].) The court has also stated that "the FifthAmendment is violated when land-use regulation 'doesnot substantially advance legitimate state interests.' "(Lucas, supra, 505 U.S. at p. 1016 [112 S. Ct. at p. 2894.)The court has furthermore described "at least two discretecategories of regulatory action as compensable withoutcase-specific inquiry into the public interest advanced insupport of the restraint. The first encompasses regulationsthat compel the [*1017] property owner to suffer aphysical 'invasion' of his property. In general (at leastwith regard to permanent invasions), no matter howminute the intrusion, and no matter how weighty thepublic purpose behind it, we have required compensation.

17 Cal. 4th 1006, *1015; 953 P.2d 1188, **1193;


. . . [P] The second situation in which we have foundcategorical treatment appropriate is where regulationdenies all economically beneficial or productive use ofland." ( Id. at p. 1015 [112 S. Ct. at p. 2893].)

In Agins v. City of Tiburon (1979) 24 Cal. 3d 266,275 [157 Cal. Rptr. 372, 598 P.2d 25], we had held thatthe sole remedy for government regulation that effects ataking of property is an administrative mandamusoverturning the regulation rather than an award ofdamages. That holding was repudiated by the UnitedStates Supreme Court in First English, supra, 482 U.S.304. In First English, the plaintiff operated a campgroundon which lay a number of buildings that had beendestroyed by flood. An interim Los Angeles Countyordinance prohibited construction or reconstruction ofany building or structure in an interim flood protectionarea that included the plaintiff's land. (2) The courtassumed for purposes of the appeal that the ordinancedeprived the plaintiff of all economically beneficial useof its property. It then held that such deprivationconstituted a temporary taking of the property for whichcompensation must be paid. " '[T]emporary' takingswhich . . . deny a landowner all use of his property, arenot different in kind from permanent takings, for whichthe Constitution clearly requires compensation." ( Id. atp. 318 [107 S. Ct. at p. 2388].) Thus, the court held that"where the government's activities [**1195] [***848]have already worked a taking of all use of property, nosubsequent action by the government can relieve it of theduty to provide compensation for the period during whichthe taking was effective." ( Id. at p. 321 [107 S. Ct. at p.2389].)

The First English court emphasized the narrownessof its holding. "We . . . point out that the allegation of thecomplaint which we treat as true for purposes of ourdecision was that the ordinance in question deniedappellant all use of its property. We limit our holding tothe facts presented, and of course do not deal with thequite different questions that would arise in the case ofnormal delays in obtaining building permits, changes inzoning ordinances, variances, and the like which are notbefore us." (First English, supra, 482 U.S. at p. 321 [107S. Ct. at p. 2389].)

Consistent with this implied limitation on thetemporary takings doctrine, the United States SupremeCourt has also "made it quite clear that the mere assertionof regulatory jurisdiction by a governmental body does

not constitute a regulatory taking. [Citation.] The reasonsare obvious. [HN3] A requirement that a person obtain apermit before engaging in a certain use of his or her[*1018] property does not itself 'take' the property in anysense: after all, the very existence of a permit systemimplies that permission may be granted, leaving thelandowner free to use the property as desired." ( UnitedStates v. Riverside Bayview Homes, Inc. (1985) 474 U.S.121, 126-127 [106 S. Ct. 455, 459, 88 L. Ed. 2d 419].)Stated in other terms, whereas "the Fifth Amendment'sjust compensation provision is 'designed to barGovernment from forcing some people alone to bearpublic burdens which, in all fairness and justice, shouldbe borne by the public as a whole' " (First English, supra,482 U.S. at pp. 318-319 [107 S. Ct. at p. 2388], fn.omitted), a rational permit regulation scheme is imposedon the public as a whole to ensure the orderlydevelopment of real property, benefiting as well asburdening property owners.

(3) Finally, the Supreme Court has emphasized thatthe question whether property has been taken is not ripefor decision until a government agency has rendered afinal decision on the use to which the property in questionmay be put. "Our reluctance to examine taking claimsuntil . . . a final decision has been made is compelled bythe very nature of the inquiry required by the JustCompensation Clause. Although '[t]he question of whatconstitutes a "taking" for purposes of the FifthAmendment has proved to be a problem of considerabledifficulty' [citation], this Court consistently has indicatedthat among the factors of particular significance in theinquiry are the economic impact of the challenged actionand the extent to which it interferes with reasonableinvestment-backed expectations. [Citations.] Thosefactors simply cannot be evaluated until theadministrative agency has arrived at a final, definitiveposition regarding how it will apply the regulations atissue to the particular land in question." ( WilliamsonPlanning Comm'n v. Hamilton Bank (1985) 473 U.S. 172,190-191 [105 S. Ct. 3108, 3118-3119, 87 L. Ed. 2d 126];see also MacDonald, Sommer & Frates v. Yolo County(1986) 477 U.S. 340, 348 [106 S. Ct. 2561, 2565-2566,91 L. Ed. 2d 285].)

B.

(4a) The present case poses the issue of whether alegally erroneous decision of a government agencyduring the development approval process resulting in

17 Cal. 4th 1006, *1017; 953 P.2d 1188, **1194;


delay constitutes a temporary taking of property.Virtually every court that has examined the issue hasconcluded, for various reasons and under varioustheories, that a regulatory mistake resulting in delay doesnot, by itself, amount to a taking of property. (SeeLittoral Development Co. v. San Francisco BayConservation etc. Com. (1995) 33 Cal. App. 4th 211,221-222 [39 Cal. Rptr. 2d 266] (Littoral DevelopmentCo.); Del Oro Hills v. City of Oceanside (1995) 31 Cal.App. 4th 1060, 1080 [37 Cal. Rptr. 2d 677]; Jacobi v.City of Miami Beach (Fla.Dist.Ct.App. 1996) 678 So.2d1365, [*1019] 1367; Cannone v. Noey (Alaska 1994)867 P. 2d 797, 801; Dumont v. Town of Wolfeboro (1993)137 N.H. 1 [622 A.2d 1238, 1244]; Tabb Lakes, Ltd. v.U.S. (Fed. Cir. 1993) 10 F.3d 796, 801-802; Steinberghv. City of Cambridge (1992) 413 Mass. 736 [604 N.E.2d1269, 1274-1277]; Smith v. Town of Wolfeboro (1992)136 N.H. 337 [615 A.2d 1252, [**1196] [***849]1257-1258]; 1902 Atlantic Ltd. v. U.S. (1992) 26 Cl.Ct.575; Lujan Home Builders v. Orangetown (1991) 150Misc.2d 547 [568 N.Y.S.2d 850, 851].)

In Steinbergh v. City of Cambridge, supra, 604N.E.2d 1269 (Steinbergh), for example, the SupremeJudicial Court of Massachusetts considered the claim of alandlord suing the city for takings damages stemmingfrom a city regulation that restricted the conversion ofrental units into condominiums. The court had, in aprevious decision, declared that the regulation exceededthe city's statutory authority under the state's rent controlstatute and was therefore invalid. The plaintiff claimedthat he suffered damages from the decline in thecondominium market during the period of the delay thatresulted from the necessity of mounting a legal challengeto the invalid rent regulation. The court first concludedthat the regulation in question was neither a physicalinvasion of property nor a deprivation of all viable use,nor a substantial interference with the property owner'sdistinct investment-based expectations. (See id. at p.1274.) The court likened the delay experienced in thecase to delay "that commonly occurs in seekingregulatory approvals for changes in local ordinances andby-laws, which are government-imposed processes thathave not traditionally been viewed as constitutingregulatory takings." (Id. at p. 1275.) "It is, of course, truethat in this case the delay was caused, not by thenecessity of obtaining mandated governmental approvals,but by the process of presenting a judicial challenge to amunicipal regulation. That legal challenge resulted ininvalidation of the regulation as beyond the authority of

the city to adopt, but not because the municipal regulationwas unconstitutional as violating rights to due process orequal protection of the laws. [Citation.] The plaintiffsmake no reasoned argument that, simply because amunicipal regulation is not authorized by law, there is acompensable temporary taking of property, even thoughthe regulation restricts the sale and reduces the marketvalue of the property until the regulation is successfullychallenged in court." (Ibid.)

The Steinbergh court then considered the argumentthat the invalidated regulation did not " 'substantiallyadvance legitimate state interests' " and therefore was ataking of property under the test articulated by theSupreme Court. (Steinbergh, supra, 604 N.E.2d at p.1275, quoting Agins v. Tiburon (1980) 447 U.S. 255, 260[100 S. Ct. 2138, 2141, 65 L. Ed. 2d 106].) Although ithad found in its previous decision that the condominiumconversion regulation was insufficiently connected withrent control, and therefore [*1020] not impliedlyauthorized by the state rent control statute, it rejected theargument that this state law defect translated into aconstitutional flaw. It found that the regulation was "a'logical and sufficiently well-founded approach todealing' with a problem [of removal of rental units fromthe market] for us to find . . . that the 'essential nexus'between 'the State's interest and its chosen means ispresent in this case.' " (Steinbergh, supra, 604 N.E.2d atp. 1277.) Therefore, despite the invalidity of theregulation, it concluded that the plaintiffs had not mettheir constitutional burden of demonstrating that theregulation failed to substantially advance a legitimatestate interest.

Our own Court of Appeal has reached a similarconclusion. (See Del Oro Hills v. City of Oceanside,supra, 31 Cal. App. 4th 1060, 1080; LittoralDevelopment Co., supra, 33 Cal. App. 4th 211.) InLittoral Development Co., the Court of Appealconsidered a regulatory taking claim against the SanFrancisco Bay Conservation and DevelopmentCommission (BCDC). It had decided in a previousdecision that BCDC, which was given jurisdiction overdevelopment of property adjacent to San Francisco Baysubject to "tidal action" ( Gov. Code, § 66610, subd. (a)),had incorrectly asserted jurisdiction over the landwardtwo-thirds of the plaintiff's property in Marin County,thereby delaying the construction of a hotel on thatproperty. It had accordingly reversed the trial court'sdecision upholding that jurisdiction. Nonetheless, it

17 Cal. 4th 1006, *1018; 953 P.2d 1188, **1195;


rejected the takings claim, stating: "Under thecircumstances, we cannot find any regulatory 'taking' ofany property, merely because delay resulted from factualor legal uncertainties which temporarily [**1197][***850] clouded the respective limits of BCDC's andMarin County's regulatory jurisdiction. . . . [P] While werecognize that, on very different facts, a transient andimpermanent interference in real property use due toegregious bureaucratic overreaching may arguablyconstitute a compensable temporary taking, BCDC'sactions here were facially valid and supported by aplausible though erroneous legal argument which the trialcourt accepted. We decline to hold that such a takingoccurred here or occurs every time a land-use agencymakes an erroneous decision which is ultimatelyoverturned in part on appeal." (Littoral Development Co.,supra, 33 Cal. App. 4th at pp. 221-222.) It also foundsignificant that the plaintiff still had some unspecified useof the property during the pendency of legal proceedings.(Ibid.)

We substantially agree with the Supreme JudicialCourt of Massachusetts, with our Court of Appeal, andwith the other courts cited above [HN4] that an error by agovernmental agency in the development approvalprocess does not necessarily amount to a taking even ifthe error in some way diminishes the value of the subjectproperty, any more than the commission of state law errorduring a criminal trial is an automatic violation of the dueprocess [*1021] clause. (See, e.g., Estelle v. Maguire(1991) 502 U.S. 62, 71-73 [112 S. Ct. 475, 481-483, 116L. Ed. 2d 385]; People v. Carpenter (1997) 15 Cal. 4th312, 393 [63 Cal. Rptr. 2d 1, 935 P.2d 708].) If the erroris of a particular constitutional type--the passage andenforcement of a law or regulation that deprives propertyof all value--then the teaching of First English is thatsuch an error is a compensable taking. But governmentland use regulations and decisions such as those citedabove in Steinbergh and Littoral Development Co.,which, despite their ultimately determined statutorydefects, are part of a reasonable regulatory processdesigned to advance legitimate government interests, arenot takings of property under the Supreme Court'sdoctrine reviewed above. (See Agins v. Tiburon, supra,447 U.S. at p. 260 [100 S. Ct. at p. 2141].)

(5) An analogous situation may be found when thegovernment initiates condemnation proceedings againstan undeveloped tract of land, thereby bringing thedevelopment process to a standstill. We have held that

when a government agency later abandoned suchproceedings, it was not liable under the takings clause,even when the proceedings caused substantial delay inthe development approval process and led to losses in theproperty's value. ( Agins v. City of Tiburon, supra, 24Cal. 3d at pp. 271, 277-278 [eminent domain proceedingactive for almost one year before abandonment].) TheUnited States Supreme Court affirmed this aspect of ourAgins decision, agreeing that we had "correctly rejectedthe contention that the municipality's good-faith planningactivities, which did not result in successful prosecutionof an eminent domain claim, so burdened the appellants'enjoyment of their property as to constitute a taking.[Citation.] Even if the appellants' ability to sell theirproperty was limited during the pendency of thecondemnation proceeding, the appellants were free to sellor develop their property when the proceedings ended.[HN5] Mere fluctuations in value during the process ofgovernmental decisionmaking, absent extraordinarydelay, are 'incidents of ownership. They cannot beconsidered as a "taking" in the constitutional sense.' " (Agins v. Tiburon, supra, 447 U.S. at p. 263, fn. 9 [100 S.Ct. at p. 2143], italics added.) Just as an abortedcondemnation proceeding that delays development is anincident of ownership and not a taking, so the mistakenassertion of jurisdiction over a development is part of thedevelopment approval process, and development delaysthat result therefrom may be imposed on the developerrather than the general taxpayer without violating theUnited States Constitution. 5

5 [HN6] The principle that a government agencywill not be liable in damages for state law errorscommitted in the development approval process iscongruent with Government Code section 818.4,which provides that a public entity cannot be heldliable "for an injury caused by the issuance,denial, suspension or revocation of, or by thefailure or refusal to issue, deny, suspend orrevoke, any permit, license, certificate, approval,order, or similar authorization where the publicentity or an employee of the public entity isauthorized by enactment to determine whether ornot such authorization should be issued, denied,suspended or revoked."

[**1198] [***851] (4b) The Court of Appeal didnot hold that all governmental mistakes in the land useprocess amounted to takings. The Court of Appeal heldrather, [*1022] as noted above, that the Commission's

17 Cal. 4th 1006, *1020; 953 P.2d 1188, **1196;


February 1991 decision to deny Landgate's developmentapplication and its position on the lot line issue was notthe "reasonable result of a 'mistake' " but rather arose outof a "jurisdictional spat with the County of Los Angelescombined with a desire to prevent Landgate frombuilding on its parcel," and a "declaration of war betweengovernmental behemoths in which the inevitable casualtywas to be a noncombatant, Landgate."

The Court of Appeal erred in its attempt to divine,through the statements of commissioners andCommission staff and through circumstantial evidence,the "true," illegitimate, motive for the Commission'sdecision to deny Landgate's development permit. (6a)[HN7] The proper inquiry is not into the subjectivemotive of the government agency, but whether there is,objectively, sufficient connection between the land useregulation in question and a legitimate governmentalpurpose so that the former may be said to substantiallyadvance the latter. (See Nollan v. California CoastalComm'n (1987) 483 U.S. 825, 836-837 [107 S. Ct. 3141,3148-3149, 97 L. Ed. 2d 677] (Nollan); Dolan v. City ofTigard (1994) 512 U.S. 374, 391 [114 S. Ct. 2309,2319-2320, 129 L. Ed. 2d 304] (Dolan).) This type ofobjective inquiry is consistent with the principle thatcourts do not delve into the individual purposes ofdecisionmakers in a quasi-adjudicative proceeding, butrather look to the findings made by the governmentagency and determine whether these are based onsubstantial evidence. ( City of Fairfield v. Superior Court(1975) 14 Cal. 3d 768, 779 [122 Cal. Rptr. 543, 537 P.2d375]; Topanga Assn. for a Scenic Community v. Countyof Los Angeles (1974) 11 Cal. 3d 506, 515-516 [113 Cal.Rptr. 836, 522 P.2d 12]; see also United States v.Morgan (1941) 313 U.S. 409, 422 [61 S. Ct. 999,1004-1005, 85 L. Ed. 1429].) (4c) Thus, we mustdetermine not whether a sinister purpose lurked behindthe Commission's decision, but rather whether thedevelopment restrictions imposed on the subject propertysubstantially advanced some legitimate state purposes soas to justify the denial of the development permit.

(6b) Moreover, the cases suggest that [HN8] judicialreview of governmental conditions imposed upondevelopment will be more deferential when theconditions are simply restrictions on land use and notrequirements that the property owner convey a portion ofhis property (see Nollan, supra, 483 U.S. at p. 841 [107S. Ct. at pp. 3150-3151]; Dolan, supra, 512 U.S. at pp.388-391 [114 S. Ct. at pp. 2318-2320]) or pay

development fees imposed on a property owner on anindividual and discretionary basis ( Ehrlich v. City ofCulver City (1996) 12 Cal. 4th 854, 876 [50 Cal. Rptr. 2d242, 911 P.2d [*1023] 429]). (4d) In the present case,neither conveyances nor individualized development feesare at issue.

The Commission's denial of Landgate's permit inFebruary 1991 did indeed appear to substantially advancelegitimate governmental interests and to be supported bysubstantial evidence. The Commission's findingsarticulated three objections to the project as proposed.First, the Commission was concerned that the largehouse, 44 feet above natural grade and 9 feet above themaximum allowable height set forth in the Malibu LUP,would be unsightly when viewed from Escondido Trailand Escondido Falls. Second, the Commission wasconcerned that excessive grading on the north slope,where the house was to be built, was contrary to theMalibu LUP, which called for the minimization ofgrading for all new development, "to ensure the potentialnegative effects of runoff and erosion on [visual]resources are minimized." These are unquestionablylegitimate government purposes (see Ehrlich v. City ofCulver City, supra, 12 Cal. 4th at p. 886 [promotion ofscenic and aesthetic objectives within the scope of thepolice power]) and there is substantial evidence in therecord in support of the reasonableness of theCommission's position. Indeed, Landgate does notchallenge the conditions ultimately imposed by theCommission requiring the reduction of building heightand total amount of grading.

[**1199] [***852] The third Commissionobjection, the improper lot line adjustment, wasprincipally based not on formal, jurisdictional orbureaucratic grounds, but on the view that suchadjustment would lead to an intensification of theenvironmental impacts with which the Commission wasconcerned. Based on our review of the record, asdiscussed above, the Commission's position appearsreasonable and supported by substantial evidence. Itfound that the placement of the house on the north slopewould make it more unsightly, bringing it closer toEscondido Trail and Escondido Falls, and would alsoobviously increase the need for grading--and with it thepotential for erosion--in order to create a flat pad for theproposed residence on a sloping surface. TheCommission's preference for construction on the flatsouth side of De Butts Terrace was therefore reasonable.

17 Cal. 4th 1006, *1022; 953 P.2d 1188, **1198;


In sum, the denial of a development permit in February1991 on the three enumerated grounds advancedlegitimate governmental interests in minimizing erosionand unsightly development in the coastal area.

We do not agree with the Court of Appeal thatanything in the record establishes that the Commissionwas motivated in its decisions by a "jurisdictional spat"with the County. The Court of Appeal quotes thestatement made by one of the commissioners after denialof the application that "the county's refusal to recognizeour right to review lot line adjustments" was [*1024]"an issue that had come before the Commission manytimes in the Malibu area." She added that it was "reallytime to become extremely serious about this" and askedthat staff counsel be directed to communicate with theCounty on the topic. But the fact that the commissionerexpressed frustration over the County's failure torecognize the Commission's jurisdiction does not suggestthat the primary or even secondary reason for theCommission's vote was to teach the County some sort ofjurisdictional lesson.

Nor are we persuaded by the Court of Appeal'sconclusion that the Commission's decision must not havebeen based on legitimate environmental concerns becauseit "could have imposed special conditions on matters suchas height in February 1991, but failed to issue the permituntil after the lot line question was resolved in February1993." From the Commission's point of view, theenvironmental impacts of the project could have beenreduced if the original lot line configuration wasmaintained. Once the Commission was confronted by acourt ruling that made restoration of the originalconfiguration impossible, it settled for what it regarded asthe next best alternative: permitting development on thenorth side of De Butts Terrace, but with conditionsimposed to reduce these environmental impacts. There istherefore no inconsistency between the Commission'senvironmental concerns and the respective positions itadopted throughout the development approval process.

The Court of Appeal also concluded that since theCommission may have approved or was going to approvetwo homes on the same sloping north side as Landgate'sparcel, "those approvals are clear indications that but forthe lot line adjustment, Landgate's application to build ahouse and related structures on its property could andwould, through the normal negotiation process, have beenapproved by February 1991 or shortly thereafter." But it

is clear that the Commission had a policy to concentratedevelopment in the area on the flat south side of De ButtsTerrace. The fact that there may have been exceptions tothis policy, based on considerations particular to thesespecific projects, for reasons not present in the currentadministrative record and about which we can onlyspeculate, does not negate the fact that the Commissionhad a rational policy preference for concentratingdevelopment on the south side of De Butts Terrace.

It would be, of course, a different question if, eventhough the Commission's position on the lot lineadjustment substantially advanced a legitimate stateinterest, that position was so unreasonable from a legalstandpoint as to lead to the conclusion that it was takenfor no purpose other than to delay the developmentproject before it. Such a delaying tactic would notadvance any valid government objective. Here, however,as discussed, the Commission's [*1025] position on thelot line adjustment issue was based on a [***853]construction [**1200] of Public Resources Code section30106 and the meaning of the term "development"contained therein that was not unreasonable. Asdiscussed, that section defines development over whichthe Commission will have jurisdiction broadly to include"change in the density or intensity of use of land,including, but not limited to, . . . lot splits." Withoutdeciding questions not before us, 6 the Commission'sconclusion, following the Attorney General's advice, thatsection 30106 gave it authority to deny the lot lineadjustment was "supported by a plausible though[perhaps] erroneous legal argument" and therefore not thebasis of a taking. (Littoral Development Co., supra, 33Cal. App. 4th at p. 221.)

6 The Court of Appeal's prior, unpublisheddecision regarding the lot line issue is now finaland may not be relitigated. (See Kavanau v. SantaMonica Rent Control Bd. (1997) 16 Cal. 4th 761,779 [66 Cal. Rptr. 2d 672, 941 P.2d 851].) We donot necessarily endorse that decision, nor are webound by its reasoning. ( Id. at pp. 777-779.)

Indeed, the Court of Appeal's earlier decision on thelot line issue was based not on the Commission's generallack of authority over such issues, or even on the fact thatinvalidation of the lot line would deprive Landgate ofproperty, but rather on the court's determination that theCommission's earlier course of conduct had constituted akind of acquiescence to the lot line adjustment. Although

17 Cal. 4th 1006, *1023; 953 P.2d 1188, **1199;


the Court of Appeal may have been correct on that point,and the Commission mistaken given the peculiar facts ofthis case, its position was not so objectively unreasonableas to give rise to the inference that it was adopting thatposition solely for purposes of delay or some otherillegitimate reason.

C.

Landgate's argument that the Commissiontemporarily took its property rests on somewhat differentgrounds than those on which the Court of Appeal holdingwas based. Landgate argues that regardless of whetherthe Commission's lot line adjustment conditionsubstantially advanced a legitimate state interest, theimposition of such condition was nonetheless a takingbecause it temporarily deprived Landgate's property of allvalue. Landgate contends that from the time thedevelopment permit was denied in February 1991 untilthe time it was approved in February 1993 after the lotline issue had been resolved by litigation, thedevelopment process was at a standstill, effectivelydepriving the property of all economic benefit. Landgatecites the Petrovsky Declaration, discussed above, asevidence that the Commission refused to continuenegotiation with Landgate as long as the jurisdictionaldispute over the lot line adjustment was pending.Landgate argues that the Commission's actions amount toa denial of all economically beneficial use [*1026] ofthe land and thus is a categorical taking (Lucas, supra,505 U.S. at p. 1016 [112 S. Ct. at pp. 2893-2894]) even ifonly temporary. (First English, supra, 482 U.S. at p. 320[107 S. Ct. at pp. 2388-2389].)

Of course, each time there is a delay in thedevelopment process, the delay may be said totemporarily deprive the developer of undevelopedproperty of use of that property. From the would-bedeveloper's point of view, the impact of ordinary delaydue to a governmental mistake on the one hand, anddenial of all feasible use on the other, may be identical.But as discussed above, for purposes of the takingsdoctrine the two types of governmental action are quitedifferent. (See First English, supra, 482 U.S. at p. 321[107 S. Ct. at pp. 2389-2390].)

Landgate asserts, however, that what is at issue inthis case was not a normal development delay due to theCommission's mistake, but in fact a final Commissiondecision to ban all development of Landgate's property, aposition the Commission was forced to abandon only

because it lost on the jurisdictional question. Morespecifically, Landgate contends the Commission'sposition that the former lot lines be preserved, combinedwith its insistence that no development take place northof De Butts Terrace, rendered Landgate's lot valueless,because its lot was situated wholly to the north of DeButts Terrace. To state the argument differently, if, forexample, a municipality's ordinance denies a parcel ofreal property all economically feasible use, it wouldarguably be no defense to a temporary takings claim toshow that the [**1201] [***854] ordinance waseventually invalidated for being inconsistent with themunicipality's general plan. 7 Similarly, Landgatecontends in effect that its failure to make progress towarddeveloping its property between February 1991 andFebruary 1993 was due not to an interim uncertaintycreated by the jurisdictional dispute with theCommission, but to a decision [*1027] by theCommission in February 1991, and subsequently, to denyall economically feasible use of Landgate's property, adenial that was the administrative equivalent of anordinance banning all development on the subjectproperty, such as was found in First English.

7 The Commission and some of its amici curiaeargue that a government exercise of power that isbeyond its jurisdictional authority can never be ataking. The argument is based on the principlethat the takings clause only authorizescompensation for "a taking of private property forpublic use," and that when a government's actionis ultra vires because the agency has exceeded itsstatutory authority, it cannot as a matter of law besaid to have taken property for public use. Somefederal courts appear to accept this rationale,holding that the Tucker Act (28 U.S.C. § 1491),creating a statutory procedure by which those whohave had their property taken by the United StatesGovernment may file a claim for compensation,does not cover " 'an executive taking notauthorized by Congress, expressly or byimplication.' [Citations.] ('[B]efore a compensabletaking can be found by the court, there must besome congressional authorization, expressed orimplied, for the particular taking claimed.') Thus,claimant must concede the validity of thegovernment action which is the basis of thetakings claim to bring suit under the Tucker Act . .. ." ( Tabb Lakes, Ltd. v. U.S., supra, 10 F.3d atpp. 802-803.) Because we decide the issue on

17 Cal. 4th 1006, *1025; 953 P.2d 1188, **1200;


other grounds, we do not decide the questionwhether the action of a government agency thatexceeds its statutory authority can ever be acompensable taking.

In considering whether the Commission's actionsconstituted in fact a denial of all economically feasibleuse, we first note that the Supreme Court hascharacterized the circumstances under which acategorical taking occurs under these circumstances as"extraordinary" and "relatively rare." (Lucas, supra, 505U.S. at pp. 1017, 1018 [112 S. Ct. at pp. 2894,2894-2895].) In Lucas, for example, the court wasconfronted with South Carolina's BeachfrontManagement Act, which authorized a government agencyto establish a coastal zone in which no developmentcould occur, and which "had the direct effect of barring[the property owner] from erecting any permanenthabitable structures on his two parcels." ( Id. at p. 1007[112 S. Ct. at p. 2889].) The property owner bears theburden of showing that the government action in questiondenied it economically beneficial use of its land. ( Id. atp. 1016, fn. 6 [112 S. Ct. at pp. 2893-2894].) 8

8 We also note that in First English on remand,the Court of Appeal held that no taking ofproperty had resulted because the owner was stillpermitted significant use. ( First EnglishEvangelical Lutheran Church v. County of LosAngeles (1989) 210 Cal. App. 3d 1353, 1372 [258Cal. Rptr. 893].)

Landgate ignores the critical difference between thiscase and Lucas and First English. An understanding ofthis difference begins with the principle that [HN9] "themere assertion of regulatory jurisdiction by agovernmental body does not constitute a regulatorytaking." ( United States v. Riverside Bayview Homes,Inc., supra, 474 U.S. at p. 126 [106 S. Ct. at p. 459].) Partof that regulatory process is the imposition of certainprocedural conditions and substantive requirements ondevelopment. These conditions can include such mattersas the filing of a proper subdivision map ( Gov. Code, §66426), installation of proper sewer facilities (id., §66483), or the requirement that the development undergothe process mandated by the California EnvironmentalQuality Act (CEQA) ( Pub. Resources Code, § 21000 etseq.). A necessary corollary of the above quoted principleis that [HN10] a government agency may deny adevelopment permit when the reasonable conditions

imposed on development are not met without that denialconstituting a taking. As the United States Supreme Courthas stated, an essential prerequisite to the assertion of atakings claim is "a final and authoritative determinationof the type and intensity of development legally permittedon the subject property." ( MacDonald, Sommer & Fratesv. Yolo County, supra, 477 U.S. at p. 348 [106 S. Ct. at p.2566].) If a would-be developer fails to meet legitimateconditions for obtaining a development permit, then a[*1028] government agency's refusal to issue such apermit would by no means be a "final and [**1202][***855] authoritative determination of the intensity ofdevelopment legally permitted on the subject property,"but merely a conditional denial. And, as reviewed in thepreceding part of this opinion, the imposition of adevelopment condition is not a constitutional violationmerely because that condition is subsequently shown tohave been erroneously imposed.

In California, one of the conditions of obtaining apermit for development within the coastal zone is theprocurement of a coastal permit. The Commission'sauthority to approve development is concurrent with theauthority of local jurisdictions, and thus compliance withthe Subdivision Map Act does not excuse compliancewith the Coastal Act. (See Pub. Resources Code, §30106; see also South Central Coastal Regional Com. v.Charles A. Pratt Construction Co. (1982) 128 Cal. App.3d 830, 844-846 [180 Cal. Rptr. 555].) This approvalrequirement extends to "any . . . division of land" thataffects the density or intensity of development. ( Pub.Resources Code, § 30106.) As discussed, Landgate'sdevelopment was denied because of the Commission'splausible, though perhaps legally erroneous, position thatLandgate or its predecessor failed to comply with one ofthe conditions of obtaining a coastal development permitby illegally reconfiguring the lot boundaries. Its rejectionof Landgate's development was at mostconditional--nothing in the record suggests that theCommission would have denied a development that fellwithin legally recognized, and environmentally morefavorable, boundaries.

The nature of the Commission's actions comes intoclearer focus if we alter the facts of this case slightly.Suppose the original owner of two lots that ranlengthwise in a north to south direction, east and west ofeach other, which we will designate as lots A and B,decided to reconfigure the lots into two lots runninglengthwise east to west, north and south of each other,

17 Cal. 4th 1006, *1027; 953 P.2d 1188, **1201;


lots C and D. The owner submitted development plans forlot C, but the Commission denied development becausein its view such a lot did not legally exist, and because torecognize such a lot would have certain detrimentalenvironmental consequences. This decision cannot befairly characterized as a deprivation of all value of lot C,but simply as a refusal to reconfigure lots A and B. Evenif it turned out that the Commission had incorrectlyasserted its jurisdiction, it would have committed thestate law error of improperly refusing to reconfigure lotsA and B, not the constitutional one of denyingdevelopment on lot C. Or to put it another way, theCommission's denial of development on lot C is not afinal decision on that development until the dispute overwhether lot C legally existed was resolved. Just as thedenial of a permit for failing to properly submit to theCEQA process would not be a taking, even if thegovernment's application [*1029] of CEQA regulationsprove to be flawed (see Pub. Resources Code, § 21168.9[writ of mandate the sole remedy for violations publicagency noncompliance with CEQA]), so the denial ofdevelopment due to a determination, subsequently held tobe erroneous, that the development did not conform to theproperty's legal boundary is not a taking.

The present case differs from the above hypotheticalin that "lot C" was sold to a subsequent purchaser ratherthan kept by the original owner. But it cannot be the casethat this subsequent purchase had a constitutionalsignificance, converting the Commission's assertion of itsregulatory jurisdiction to approve lot reconfigurationsinto a taking of property. 9

9 We note that the innocent purchaser of anillegal lot is not left without a remedy. There maywell be private remedies available. (See, e.g.,Goodspeed v. Associated Almond Growers (1929)208 Cal. 121, 122 [280 P. 530] [sale of a parcel inviolation of the Subdivision Map Act may berescinded].) The innocent purchaser of an illegallot may also have the options of negotiating withother private landowners to obtain a legal lot, andnegotiating with the government agency todevelop the property in such a way as to meet theagency's underlying concerns. Because Landgate'slot was ultimately judged to be legal, we do notknow, and need not determine, which of theseoptions Landgate could have pursued.

The present case also differs from the hypothetical

because a road was built through lots A and B, therebysupporting Landgate's argument that even if theCommission had jurisdiction over a lot line adjustment, ithad implicitly waived its right to deny that adjustment byacquiescing in construction [**1203] [***856] of theroad. But the existence of the road, while it may havebeen grounds for finding that the Commission erred infailing to recognize the legal existence of "lot C," did notconvert the Commission's state law error into a taking.Again, the Commission could legitimately require that alot on which development was requested be legal, when,as here, there are legitimate reasons for so requiring.Therefore, when the Commission determined thatLandgate's lot was not legal, it could legitimately litigatethe lot line question without offending the takings clause.The Commission could not be said to have reached a finaland authoritative determination of the development onLandgate's lot until after the dispute about the legality ofthe lot had been resolved.

Of course, as explained in the preceding part of thisopinion, a government agency may not evade the takingsclause by fabricating a dispute over the legality of a lot,or by otherwise arbitrarily imposing conditions ondevelopment in order to delay or discourage thatdevelopment. The government agency's assertion ofauthority, whether or not erroneous, must advance somelegitimate government purpose. But as discussed above,the Commission's actions in this case met thisconstitutional prerequisite.

In light of the foregoing, the difference between thiscase and First English becomes clear. Here, there was apostponement of development [*1030] pendingresolution of a threshold issue of the developmentapproval process --whether the lot was legal--and not afinal decision denying development. In First English, onthe other hand, the Supreme Court assumed that theordinance in question categorically denied all propertyowners within its purview the right to develop theirproperty. Development was assumed to be denied in FirstEnglish, in other words, even though there was no disputeabout a threshold issue in the development approvalprocess, as there was in this case, that would be alegitimate basis for postponing approval of development.The postponement of Landgate's development thereforedoes not constitute a temporary taking of property as thatdoctrine was conceived in First English.

Landgate indeed appears to argue that any impasse in

17 Cal. 4th 1006, *1028; 953 P.2d 1188, **1202;


the regulatory process that must be resolved through ajudicial proceeding is a temporary taking rather than anormal delay in development. But First English merelystands for the proposition that once a government actionfinally denies all economically viable use of property, thefact that the government later rescinds that action after ajudicial proceeding does not relieve it of its duty to paycompensation. (First English, supra, 482 U.S. at p. 321[107 S. Ct. at p. 2389].) Nothing in First English,however, is inconsistent with the recognition that ajudicial determination of the validity of certainpreconditions to development is a normal part of thedevelopment process, and the fact that a developer mustresort to such a determination does not constitute a per setemporary taking.

In fact, a review of our case law reveals numerousinstances in which developers have sought a writ ofmandate against public agencies over questions regardinglot configuration, compliance with the Subdivision MapAct, compliance with CEQA, and over other thresholdquestions that must be resolved before it can bedetermined whether a development should be permittedto proceed. The resolution of these cases often turns onthe construction and application of complex statutoryschemes and results in significant delays in thedevelopment process. In some cases, the developersucceeded in overturning the public agency's decision onthese threshold development questions. (See, e.g.,Morehart v. County of Santa Barbara (1994) 7 Cal. 4th725 [29 Cal. Rptr. 2d 804, 872 P.2d 143] [countymisconstrues its authority to merge parcels of land underGov. Code, § 66410 et seq.]; Lakeview Meadows Ranchv. County of Santa Clara (1994) 27 Cal. App. 4th 593 [32Cal. Rptr. 2d 615] [county wrongly denies certificate ofcompliance with Subdivision Map Act pursuant to Gov.Code, § 66499.35 for parcels created prior to 1893];Native Sun/Lyon Communities v. City of Escondido(1993) 15 Cal. App. 4th 892, 911 [19 Cal. Rptr. 2d 344][city misapplies Gov. Code, § 66452.6 in failing toextend subdivision map due to [*1031] developmentmoratorium]; San Dieguito Partnership v. City of SanDiego [**1204] [***857] (1992) 7 Cal. App. 4th 748[9 Cal. Rptr. 2d 440] [city misapplies Gov. Code, §66412 in requiring particular lot line adjustment tocomply with Subdivision Map Act]; Great Western Sav.& Loan Assn. v. City of Los Angeles (1973) 31 Cal. App.3d 403 [107 Cal. Rptr. 359] [city misconstruesSubdivision Map Act to permit discretion in approvingfinal subdivision map when all the conditions of the

tentative map have been met].) In other instances, thecourts have upheld the government's position on thesethreshold development questions. (See, e.g., Gomes v.County of Mendocino (1995) 37 Cal. App. 4th 977 [44Cal. Rptr. 2d 93] [county had properly applied Gov.Code, § 66499.201/2 in determining underlying landpatents had been eliminated by subsequent subdivision];Harroman Co. v. Town of Tiburon (1991) 235 Cal. App.3d 388 [1 Cal. Rptr. 2d 72] [town's downzoning ofplaintiff's property inconsistent with present general planbut consistent with new draft general plan affirmedpursuant to Gov. Code, § 65589.5]; John Taft Corp. v.Advisory Agency (1984) 161 Cal. App. 3d 749 [207 Cal.Rptr. 840] [county's determination that parcelsrecognized by a United States Government Survey Mapin 1878 not exempted from Subdivision Map Actupheld]; South Central Coast Regional Com. v. CharlesA. Pratt Construction Co., supra, 128 Cal. App. 3d 830[developer obtaining tentative subdivision map prior toenactment of Coastal Act not exempted from Act'srequirements]; Bel Mar Estates v. California CoastalCom. (1981) 115 Cal. App. 3d 936 [171 Cal. Rptr. 773][Commission correctly construed statutory authority todeny development]; Scrogings v. Kovatch (1976) 64 Cal.App. 3d 54 [134 Cal. Rptr. 217] [county properlyexercises authority under Subdivision Map Act to denyfurther lot splits before installation of public sewersystem].)

Landgate does not appear to contend that litigationover threshold development questions is a taking ofproperty if the government agency prevails in suchlitigation. But to conclude that such litigation is a normalpart of the regulatory process when the public agencyprevails but a per se temporary taking when the publicagency loses has no basis in either logic or SupremeCourt precedent.

In sum, Landgate has not demonstrated that thedevelopment delay between February 1991 and February1993 was due to anything other than a bona fide disputeover the legality of Landgate's lot and the Commission'sjurisdictional authority over the lot line adjustment. Suchdelay is an incident of property ownership and not ataking of property. (See Agins v. Tiburon, supra, 447 U.S.at p. 263, fn. 9 [100 S. Ct. at p. 2143].) AlthoughLandgate was in the unfortunate position of sufferingfrom a delay not of its own making, the same can be saidof any governmental mistake or, for that matter, any of anumber of possible bottlenecks in the development

17 Cal. 4th 1006, *1030; 953 P.2d 1188, **1203;


process. [*1032] (See, e.g., Laurel Heights ImprovementAssn. v. Regents of University of California (1993) 6 Cal.4th 1112 [26 Cal. Rptr. 2d 231, 864 P.2d 502][development postponed several years due toassociation's litigation regarding the adequacy of theenvironmental impact report]); Citizens of Goleta Valleyv. Board of Supervisors (1990) 52 Cal. 3d 553 [276 Cal.Rptr. 410, 801 P.2d 1161] [same]; Friends of La Vina v.County of Los Angeles (1991) 232 Cal. App. 3d 1446[284 Cal. Rptr. 171] [same].) Because nothing in therecord demonstrates that the Commission's actionsamounted to a regulatory taking of Landgate's property,the trial court should have granted its motion forsummary judgment on Landgate's taking claim, andshould have denied Landgate's motion for summaryadjudication.

III

For all the foregoing reasons, the judgment of theCourt of Appeal is reversed and the cause is remanded tothe Court of Appeal. The Court of Appeal shall remand tothe trial court with directions to grant the Commission'smotion for summary judgment against Landgate's takingsclaim and to deny Landgate's motion for summaryadjudication.

George, C. J., Kennard, J., and Werdegar, J.,concurred.

DISSENT BY: CHIN; BROWN

DISSENT

CHIN, J.,

Dissenting.--The takings clause of the federalConstitution guarantees property owners "justcompensation" when their property is "taken for[**1205] [***858] public use." (U.S. Const., 5thAmend.) In First Lutheran Church v. Los Angeles County(1987) 482 U.S. 304, 322 [107 S. Ct. 2378, 2389-2390,96 L. Ed. 2d 250] (First English), the United StatesSupreme Court held that a property owner could recovercompensation for a temporary taking.

First English involved a Los Angeles Countyordinance that the plaintiff alleged prohibited all use ofits property. (First English, supra, 482 U.S. at p. 308[107 S. Ct. at p. 2382].) The plaintiff asserted that theordinance constituted a taking of its property for public

use, and it sought just compensation. (Ibid.) The trialcourt and California Court of Appeal ruled that plaintiffwas not entitled to compensation unless the county optedto retain the ordinance following a judicial determinationthat the ordinance constituted a taking. ( Id. at pp.308-309 [107 S. Ct. at pp. 2382-2383].) In other words,these courts held that no taking could occur during theperiod of litigation over the validity of the ordinance. TheUnited States Supreme Court disagreed, holding that,even if the county withdrew the ordinance as a result ofthe litigation, it still owed compensation for thetemporary period the ordinance was in effect. ( Id. at p.322 [107 S. Ct. at pp. 2389-2390].)

Here, the California Coastal Commission(Commission) made clear that it opposed the lot lineadjustment that created Landgate's lot, and therefore[*1033] opposed all development of Landgate's propertyregardless of the magnitude of the development. TheCommission's decision denying Landgate's applicationfor a development permit had the same impact onLandgate as the ordinance in First English had on theplaintiff in that case. Landgate sued the Commission andsuccessfully established that the Commission's decisionwas wrong under state law and also that it constituted ataking. The Commission then approved development ofLandgate's property, thereby preventing Landgate fromasserting a permanent taking. Under these circumstances,First English makes clear that the Commission must paycompensation for the temporary taking that occurredwhile its total ban on development of Landgate's propertywas in effect.

The majority notes that the high court did not decidein First English whether "normal delays in obtainingbuilding permits, changes in zoning ordinances,variances, and the like" would amount to a temporarytaking. (First English, supra, 482 U.S. at p. 321 [107 S.Ct. at p. 2389].) The majority argues that this caseinvolves a "normal delay" in the permit approval process,not a temporary taking. (Maj. opn., ante, at pp. 1010,1030.) I disagree. When a regulatory agency prohibits alluse of a particular property, and the property owner isforced to sue the agency to get it to change its position,its stonewalling is not fairly characterized as a "normaldelay" in the permit approval process. Here, theCommission's denial of Landgate's development permitwas not, as the majority argues, "conditional," merelycalling for some reasonable act of compliance byLandgate. (Maj. opn., ante, at p. 1028.) Rather, the

17 Cal. 4th 1006, *1031; 953 P.2d 1188, **1204;


Commission made clear that it would not approve anydevelopment on Landgate's lot regardless of thecircumstances. Nor did the Commission in this casetemporarily delay the permit approval process "pendingresolution of a threshold issue." (Maj. opn., ante, at pp.1029, 1030.) Rather, the Commission flatly denied thepermit, and its decision was final in every sense. TheCommission was not planning to take any further action.Landgate had to sue the Commission to get relief.

In his dissent in First English, Justice Stevensarticulated the precise argument on which the majorityrelies here. Specifically, Justice Stevens asserted, as doesthe majority here (maj. opn., ante, at p. 1030), thatlitigation over the validity of a land use restriction issimply a "normal delay[]" in the permit approval processand therefore cannot give rise to a temporary taking.(First English, supra, 482 U.S. at p. 334 [107 S. Ct. at p.2396] (dis. opn. of Stevens, J.).) Justice Stevens stated:"The Court's analysis . . . appears to erect an artificialdistinction between 'normal delays' and the delaysinvolved in obtaining a court declaration that [**1206][***859] the regulation constitutes a taking. [P] In myopinion, . . . [l]itigation challenging the validity of aland-use restriction gives rise to a delay that is just as'normal' [*1034] as an administrative procedureseeking a variance or an approval of a controversialplan." ( Id. at pp. 334-335 [107 S. Ct. at p. 2396] (dis.opn. of Stevens, J.), italics added, fns. omitted.) Thus,Justice Stevens would have held that litigation over thevalidity of a land use regulation, like other "normaldelays" in the permit approval process, cannot give rise toa temporary taking even if the regulation deprives theproperty owner of all use of its property. The majority ofthe high court considered Justice Stevens's argument andrejected it. Now, the same argument has found new life inthe majority opinion here.

I agree with the majority "that a government agencymay deny a development permit when the reasonableconditions imposed on development are not met . . . ."(Maj. opn., ante, at p. 1027.) I also agree that "a judicialdetermination of the validity of certain preconditions todevelopment is a normal part of the development process,and . . . does not constitute a per se temporary taking."(Maj. opn., ante, p. 1030, original italics.) Nevertheless,if the "preconditions to development" have the effect ofprohibiting all use of the property regardless of thecircumstances, then they constitute a taking. If thosepreconditions are permanent, then the taking is

permanent; if those preconditions are temporary, then thetaking is temporary. The majority cites numerous cases(maj. opn., ante, at pp. 1030-1031) in which litigationdelay was "a normal part of the regulatory process."(Maj. opn., ante, at p. 1031.) I find these cases irrelevantto the issue before us. First, these cases do not addresswhether the litigation delay constituted a temporarytaking. Second, I do not argue that, in this case, thelitigation delay by itself gave rise to the temporarytaking; rather, I argue that the Commission's total andfinal ban on all use of Landgate's property (which existedduring the litigation delay) gave rise to the temporarytaking. As long as that total ban was in effect, thetemporary taking continued.

In First English, the court held that "where thegovernment's activities have already worked a taking ofall use of property, no subsequent action by thegovernment can relieve it of the duty to providecompensation for the period during which the taking waseffective." (First English, supra, 482 U.S. at p. 321 [107S. Ct. at p. 2389].) The majority would limit this holdingto cases involving "the passage and enforcement of a lawor regulation that deprives property of all value." (Maj.opn., ante, at p. 1021, italics added.) I find no basis inFirst English for this limitation. Here, the policiesreflected in the Commission's adjudicative decision, likethe ordinance at issue in First English, "worked a takingof all use of property," and nothing "can relieve [theCommission] of the duty to provide compensation for theperiod during which the taking was effective." (FirstEnglish, supra, 482 U.S. at p. 321 [107 S. Ct. at p.2389].)

[*1035] Accordingly, I dissent.

Baxter, J., concurred.

BROWN, J.,

Dissenting.--The more things change, the more theyremain the same. That is certainly true with respect to thiscourt's takings jurisprudence. Almost 20 years ago,Justice Brennan, dissenting in San Diego Gas & ElectricCo. v. San Diego (1981) 450 U.S. 621, 636 [101 S. Ct.1287, 1296, 67 L. Ed. 2d 551], charged this court withsacrificing the right to just compensation guaranteed bythe Fifth Amendment on an altar "of policy judgmentsmade by the . . . judicial branch[]." ( Id. at p. 661 [101 S.Ct. at p. 1309], fn. omitted.) Although the deferencecommanded by the high court's precedents is not always

17 Cal. 4th 1006, *1033; 953 P.2d 1188, **1205;


"absolute," when it has made an attempt to resolvedefinitively a difficult point of constitutional law that isapplicable to the very issue before us, we ought either torespect its judgment or provide a reasoned basis forrefusing to do so. To do otherwise, in Charles Fried'swords, is [**1207] [***860] "judicial impudence."(Fried, Impudence (1992) Sup. Ct. Rev. 155, 157,192-193.)

I dissent.

Viewing pure democracy as incompatible withpersonal security or the rights of property (Madison, TheFederalist No. 10 (Rossiter ed. 1961) p. 81), 1 the draftersof our Constitution went to extraordinary lengths "tocontrol the governed" and to "oblige [the government] tocontrol itself." (Madison, The Federalist No. 51, supra, atp. 322.) By adopting the Constitution, the people of theUnited States "manifested a determination to shieldthemselves and their property from the effects of thosesudden and strong passions to which men are exposed." (Fletcher v. Peck (1810) 10 U.S. (6 Cranch) 87, 138 [3 L.Ed. 162, 178].)

1 Had the Federalists lost the argument, ourrepublic might more closely resemble P.J.O'Rourke's wry description, "THE WHOLEIDEA OF OUR GOVERNMENT IS THIS: Ifenough people get together and act in concert,they can take something and not pay for it."(O'Rourke, Parliament of Whores (1991) p. 232.)

The prohibition of the takings clause is oneexpression of the constitutional commitment to limitinggovernment and maximizing individual liberty. Theprotection of private property guaranteed by the FifthAmendment presupposes the property is sought forlegitimate purposes, out of a desire to improve the publiccondition. It nevertheless prohibits appropriation ofproperty--even for such beneficial purposes--without justcompensation. The difficulty inherent in trying toreconcile popular self-government with privateownership of property has propelled the Supreme Court'stakings [*1036] doctrine along an erratic course, fromprotection of property rights as a matter of fixed principleto ad hoc balancing tests and back to categorical rules.The result has been justifiably criticized as muddled.

"[R]ecent cases," according to one scholar, "havedone little to clarify the [Takings] Clause, and thedoctrine remains in perplexing disarray." (McUsic,

Looking Inside Out: Institutional Analysis and theProblem of Takings (1998) 92 Nw. U. L.Rev. 591, 592,fn. 2 [citing treatises and law review articles over the past15 years]; Schroeder, Never Jam To-day: On theImpossibility of Takings Jurisprudence (1996) 84 Geo.L.J. 1531.) Despite the general impossibility of its takingsjurisprudence, in Lucas v. South Carolina CoastalCouncil (1992) 505 U.S. 1003 [112 S. Ct. 2886, 120 L.Ed. 2d 798] (Lucas), the United States Supreme Courtmade a heroic effort to bring a measure of clarity to ananalytical framework that has grown doctrinally moredifficult as it has become politically more fundamental.After embracing an intractably complex, ad hoc"balancing test" in Penn Central Transp. Co. v. New YorkCity (1978) 438 U.S. 104, 124 [98 S. Ct. 2646, 2659, 57L. Ed. 2d 631] (Penn Central), the court in Lucasenunciated the clear rule which should govern ourdecision in this case: "In 70-odd years of succeeding'regulatory takings' jurisprudence [i.e., following Penna.Coal Co. v. Mahon (1922) 260 U.S. 393 [43 S. Ct. 158,67 L. Ed. 322, 28 A.L.R. 1321]], we have generallyeschewed any ' "set formula" ' for determining how far istoo far, preferring to 'engag[e] in . . . ad hoc, factualinquiries.' [Citations.] We have, however, described atleast two discrete categories of regulatory action ascompensable without case-specific inquiry into the publicinterest advanced in support of the restraint. The firstencompasses regulations that compel the property ownerto suffer a physical 'invasion' of his property. . . . [P] Thesecond situation in which we have found categoricaltreatment appropriate is where regulation denies alleconomically beneficial or productive use of land.[Citations.]" (Lucas, supra, 505 U.S. at p. 1015 [112 S.Ct. at p. 2893], italics added.)

If Lucas means what it says, it establishes acategorical rule. No amount of judicial legerdemain cantransform its objective, bright-line standard into a licensefor courts to engage in prohibited forms of "case-specificinquiry into the public interests advanced in support of"(Lucas, supra, 505 U.S. at p. 1015 [112 S. Ct. at p.2893]) a given restraint.

After paying grudging lip service to Lucas'scategorical rule, the majority falls back on Penn Central'ssquishy "multi-factor" test, a standard so amorphous it iscapable of producing virtually any result. This is the verytest Lucas overruled pro tanto in cases, [**1208][***861] like this one, where the restraint at issue deniesall economic use. The tortuous logic by which today's

17 Cal. 4th 1006, *1035; 953 P.2d 1188, **1206;


majority [*1037] decides an order of the coastalcommission--one that finally and unqualifiedly denied thelandowners here all use of their property for over twoyears--was a mere "temporary delay" is worth examiningin detail.

First, the majority resuscitates the Penn Central testin this case by ignoring another equally clear precedent.In First Lutheran Church v. Los Angeles County (1987)482 U.S. 304 [107 S. Ct. 2378, 96 L. Ed. 2d 250] (FirstLutheran), the United States Supreme Court concludedthat temporary takings are compensable, repudiating thiscourt's contrary holding in Agins v. City of Tiburon(1979) 24 Cal. 3d 266 [157 Cal. Rptr. 372, 598 P.2d 25].The majority dismisses the holding in First Lutheran as"narrow[]"; confined to its facts; requiring the existenceof a final administrative decision before the presence of aconstitutional violation can be determined; a case whichdid not hold that the "mere" assertion of regulatoryjurisdiction constituted a taking; and so on. (Maj. opn.,ante, at pp. 1017-1018.) But even if we accept all of themajority's quibbles, both Lucas and First Lutheranindisputably apply here.

Mystifyingly, the majority then instructs us that"[v]irtually every court that has examined the issue hasconcluded . . . that a regulatory mistake resulting in delaydoes not, by itself, amount to a taking of property." (Maj.opn., ante, at p. 1018.) True enough. But none of the 10cases cited in support of this patently obvious conclusionrefutes the plaintiff property owners' claim for justcompensation in this case.

Two of these "noncompensable delay" casespreceded Lucas; in the remainder, the court found eitherthat the agency had not reached a final decision or thatthe regulation did not deny the owner all beneficial use.(See Littoral Development Co. v. San Francisco BayConservation etc. Com. (1995) 33 Cal. App. 4th 211,221-222 [39 Cal. Rptr. 2d 266] [no final decision]; DelOro Hills v. City of Oceanside (1995) 31 Cal. App. 4th1060, 1065 [37 Cal. Rptr. 2d 677] [no final decision];Jacobi v. City of Miami Beach (Fla.Dist.Ct.App. 1996)678 So.2d 1365, 1366 [no denial of all economic use];Cannone v. Noey (Alaska 1994) 867 P.2d 797, 801[same]; Dumont v. Town of Wolfeboro (1993) 137 N.H. 1[622 A.2d 1238, 1244] [same]; Tabb Lakes, Ltd. v. U.S.(Fed. Cir. 1993) 10 F.3d 796, 798 [no final decision];Steinbergh v. City of Cambridge (1992) 413 Mass. 736[604 N.E.2d 1269, 1274] [no denial of all economic use];

Smith v. Town of Wolfeboro (1992) 136 N.H. 337 [615A.2d 1252, 1257-1258] [same]; 1902 Atlantic Ltd. v. U.S. (1992) 26 Cl.Ct. 573 [pre-Lucas decision applyingPenn Central analysis]; Lujan Home Builders v.Orangetown (1991) 150 Misc.2d 547 [568 N.Y.S.2d 850,851] [due process rather than takings analysis].)

Lucas itself teaches that its categorical rules do notapply unless the restraint at issue deprives the propertyowner of all economic use. (Lucas, [*1038] supra, 505U.S. at pp. 1015-1019 [112 S. Ct. at pp. 2893-2895].)Other takings cases make clear the high court's"insistence on knowing the nature and extent of permitteddevelopment before adjudicating the constitutionality ofthe regulations that purport to limit it." (MacDonald,Sommer & Frates v. Yolo County (1986) 477 U.S. 340,351 [106 S. Ct. 2561, 2567, 91 L. Ed. 2d 285](MacDonald); see also Williamson Planning Comm'n v.Hamilton Bank (1985) 473 U.S. 172, 186 [105 S. Ct.3108, 3116, 87 L. Ed. 2d 126] (Williamson County)["Because respondent has not yet obtained a finaldecision regarding the application of the zoningordinance and subdivision regulations to its property, norutilized the procedures Tennessee provides for obtainingjust compensation, respondent's claim is not ripe."].) Asthe court has stated, however, the role served by theripeness requirement in the takings context is"prudential": to make clear "the economic impact of thechallenged action and the extent to which it interfereswith reasonable investment-backed expectations.[Citations.] Those factors simply cannot be evaluateduntil the administrative agency has arrived at a final,definitive position regarding how it will apply theregulations at issue to the [***862] particular land in[**1209] question." (Williamson County, supra, 473U.S. at p. 191 [105 S. Ct. at p. 3118]; see Hodel v.Virginia Surface Mining & Recl. Assn., Inc. (1981) 452U.S. 264 [101 S. Ct. 2352, 69 L. Ed. 2d 1] (Hodel).)

Only recently, the court underlined the limitedcontours of "ripeness" in the takings context. In Suitum v.Tahoe Regional Planning Agency (1997) 520 U.S. 725[117 S. Ct. 1659, 137 L. Ed. 2d 980], it said that casessuch as Williamson County, MacDonald, and Hodel"addressed the virtual impossibility of determining whatdevelopment will be permitted on a particular lot of landwhen its use is subject to the decision of a regulatorybody invested with great discretion, which it has not yeteven been asked to exercise. No such question ispresented here." (Id. at p. [117 S. Ct. at p. 1667], italics

17 Cal. 4th 1006, *1036; 953 P.2d 1188, **1208;


added; see also Lucas, supra, 505 U.S. at pp. 1011-1012[112 S. Ct. at pp. 2890-2891].) It is that administrativeflexibility that lies behind and justifies the prudentialripeness rule in the takings context. Those concernssimply have no bearing in this case, however, where thecommission made clear the extent to which it wouldpermit plaintiffs to develop their lot: not at all. The casesrelied on by the majority are thus wide of the only issuepresented: Did the commission's definitive refusal topermit plaintiffs to make any use of their property--arefusal that continued until, after two years of litigation,plaintiffs obtained judicial relief--"den[y] alleconomically beneficial or productive use of [their]land." (Lucas, supra, 505 U.S. at p. 1015 [112 S. Ct. at p.2893].)

This is not a case in which the property ownerscontend, as the majority would have it, that "a regulatorymistake resulting in delay . . ., by itself, [*1039]amount[s] to a taking of property." (Cf. maj. opn., ante, atp. 1018.) That is not, and never has been, the law oftakings. Rather, plaintiffs' argument--and the essentialmeaning of both Lucas and First Lutheran--is that a finaldecision by a regulatory agency that denies alleconomically beneficial use of the property, eventemporarily, is a per se compensable Fifth Amendmenttaking. 2 If that is so, then plaintiffs' property has been"taken," however temporarily, by the commission's order,and the payment of "just" compensation isconstitutionally compelled. As both the trial court and theCourt of Appeal concluded, that is what happened here.

2 As Lucas itself and following cases havepointed out, there is one recognized exceptioneven to the court's categorical takings rule. If thegovernment can demonstrate that controllingprinciples of "background law"--typicallyembodied in a state's nuisance law--do not permitthe use at issue, compensation is not required.(See 505 U.S. at p. 1029 [112 S. Ct. at p. 1200]["A law or decree with such an effect [i.e.,prohibiting all economically beneficial use] must .. . do no more than duplicate the result that couldhave been achieved in the courts--by adjacentlandowners . . . under the State's law of privatenuisance, or by the State under its complementarypower to abate nuisances that affect the publicgenerally. . . ." (Fn. omitted.)].)

The majority dodges the otherwise inevitable result

by changing the question: "The present case poses theissue of whether a legally erroneous decision of agovernment agency during the development approvalprocess resulting in delay constitutes a temporary takingof property." (Maj. opn., ante, at p. 1018.) "Legallyerroneous"? "Process"? "Delay"? Of course mere "delay"in a "process" resulting from an "erroneous decision"does not qualify as a constitutional violation. If it did,every "mistake" by government land use authoritiesleading to any delay in the owner's use of her propertywould require compensation. A massive raid on thepublic fisc would ensue. Suppose, however, the questionwere differently, more evenhandedly, framed as one that"poses the issue of whether a regulatory decision barringany use of property until the agency's decision isoverturned by a court constitutes a temporary taking ofproperty?" What result then? That, rather than themajority's tendentious formulation, is the issue presentedby this case.

In any event, the majority's trick question has alreadybeen asked and answered. As Justice Chin points out inhis dissent (see dis. opn. of Chin, J., ante, at pp.1033-1034), the identical position espoused by themajority--that litigation over the validity of a land userestriction is simply a "normal delay" in the permitapproval process and thus cannot [**1210] [***863]give rise to a temporary taking--was advanced by JusticeStevens in his dissenting opinion in First Lutheran. (See482 U.S. at pp. 334-335 [107 S. Ct. at pp. 2396-2397].)The precise issue has thus already been considered andrejected by the high court. (See dis. opn. of Chin, J., ante,at p. 1034.)

[*1040] If Lucas lays down a categorical rule, andif, as First Lutheran concludes, a final order thattemporarily deprives a property owner of alleconomically beneficial use is a compensable taking,these propositions ought to readily yield a clear answer,one that does not depend on the majority's elaborate, evenarduous, preliminary discussion. (Cf. Florida RockIndustries, Inc. v. U.S. (Fed. Cir. 1994) 18 F.3d 1560,1564-1565 [Lucas "teaches that the economic impactfactor alone may be determinative; in somecircumstances, no balancing of factors is required. If aregulation categorically prohibits all economicallybeneficial use of land--destroying its economic value forprivate ownership--the regulation has an effect equivalentto a permanent physical occupation. There is, withoutmore, a compensable taking." (Fns. omitted, second

17 Cal. 4th 1006, *1038; 953 P.2d 1188, **1209;


italics added.)].)

What the Supreme Court's categorical rule in Lucasmeans for property owners, and what the majority refusesto acknowledge, is that after Lucas, Justice Holmes'sfamous apothegm in the Rock Island Railroad case, that"Men must turn square corners when they deal with theGovernment" ( Rock Island & c. R. R. v. United States(1920) 254 U.S. 141, 143 [41 S. Ct. 55, 56, 65 L. Ed.188]) is now reciprocal. Following Lucas, in a limitedclass of cases, regulators whose final action denies anowner all beneficial economic use of land are on noticethat, if their decisions prove wrong when tested in court,the government may face a damages judgment for atemporary taking even if the restraint is later rescinded. Inthis context at least, it is government that must turnsquare corners when it attempts to overregulate the use ofprivate property or is in danger of "forcing some peoplealone to bear public burdens which, in all fairness andjustice, should be borne by the public as a whole." (Armstrong v. United States (1960) 364 U.S. 40, 49 [80 S.Ct. 1563, 1569, 4 L. Ed. 2d 1554]; Lucas, supra, 505 U.S.at p. 1018 [112 S. Ct. at pp. 2894-2895].)

To further confuse the discussion, the majorityplunges into a lengthy disquisition on the connectionbetween the land use regulation at issue here and thelegitimate governmental purposes it arguably advances.This, of course, is the formulation developed in Dolan v.City of Tigard (1994) 512 U.S. 374 [114 S. Ct. 2309, 129L. Ed. 2d 304], and Nollan v. California Coastal Comm'n(1987) 483 U.S. 825 [107 S. Ct. 3141, 97 L. Ed. 2d 677],a "nexus" test that is precluded by the categorical rule inLucas. Indeed, the very nature of Lucas's categorical ruleappears to bar a court from conducting a case-specificinquiry into those interests that might justify the restraintimposed on the plaintiffs' use of their property by thecommission's order. (Lucas, supra, 505 U.S. at p. 1015[112 S. Ct. at p. 2893] ["We have . . . described . . . twodiscrete categories of regulatory action as compensablewithout case-specific inquiry into the public interestadvanced in support of the restraint."].)

[*1041] Although Justice Holmes's caution thatwhen regulation "goes too far it will be recognized as ataking" is foundational to much takings jurisprudence (Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 415 [43S. Ct. 158, 160, 67 L. Ed. 2d 322, 28 A.L.R. 1321]), thehigh court "ha[s] never set forth the justification for thisrule." (Lucas, supra, 505 U.S. at p. 1017 [112 S. Ct. at p.

2894].) As Justice Scalia explains: "Perhaps it is simply .. . that total deprivation of beneficial use is, from thelandowner's point of view, the equivalent of a physicalappropriation. [Citation.] . . . Surely, at least, in theextraordinary circumstance when no productive oreconomically beneficial use of land is permitted, it is lessrealistic to indulge our usual assumption that thelegislature is simply 'adjusting the benefits and burdensof economic life' [citation] in a manner that secures an'average reciprocity of advantage' to everyone concerned[citation]. And the functional basis for permitting thegovernment . . . to affect property values withoutcompensation . . . does not apply to the relatively raresituations where the government has deprived alandowner of all economically [**1211] [***864]beneficial uses." (505 U.S. at pp. 1017-1018 [112 S. Ct.at p. 2894], italics in original.)

"On the other side of the balance," the Lucasmajority continued, "affirmatively supporting acompensation requirement, is the fact that regulations thatleave the owner of land without economically beneficialor productive options for its use--typically, as here, byrequiring land to be left substantially in its naturalstate--carry with them a heightened risk that privateproperty is being pressed into some form of publicservice under the guise of mitigating serious public harm.[Citations.] As Justice Brennan explained: 'From thegovernment's point of view, the benefits flowing to thepublic from preservation of open space throughregulations may be equally great as from creating awildlife refuge through formal condemnation orincreasing electricity production through a dam projectthat floods private property.' " (505 U.S. at p. 1018 [112S. Ct. at pp. 2894-2895].) In short, Justice Scaliaconcluded, "there are good reasons for our frequentlyexpressed belief that when the owner of real property hasbeen called upon to sacrifice all economically beneficialuse in the name of the common good, that is, to leave hisproperty economically idle, he has suffered a taking."(505 U.S. at p. 1019 [112 S. Ct. at p. 2895], fn. omitted,italics in original.)

It is evident the majority is unwilling to come toterms with the true meaning and operative effect of Lucasand First Lutheran. At every turn, its opinion reflects theabiding conviction that takings jurisprudence has notadvanced a single step beyond the "regulatory friendly"analysis of Penn Central. At every opportunity, themajority reverts to Penn Central's ad hoc factual inquiry.

17 Cal. 4th 1006, *1040; 953 P.2d 1188, **1210;


Limning all this reasoning is the vocabulary of "balance."Instead of confronting the meaning of Lucas as it appliesin this case, the [*1042] majority chatters endlessly of"delay . . . owing to the mistaken assertion ofjurisdiction" (maj. opn., ante, at p. 1010), " 'normal delay'" (ibid.), "normal delay rather than a temporary taking"(ibid.), "legally erroneous decision . . . during thedevelopment . . . process resulting in delay" ( id. at p.1018), "reasonable regulatory process designed toadvance legitimate government interests" ( id. at p.1021), "[m]ere fluctuations in value during the process ofgovernment decisionmaking" (ibid.), "mistaken assertionof jurisdiction" (ibid.), "normal development delay" ( id.at p. 1026), "conditional denial" ( id. at p. 1028),"condition . . . erroneously imposed" (ibid.), "plausible,though perhaps legally erroneous" (ibid.), "postponementof development" ( id. at p. 1029), "bona fide dispute" ( id.at p. 1031), "delay [as] an incident of propertyownership" (ibid.), and plaintiffs' "unfortunate position ofsuffering from a delay." (Ibid.) Thus is reality ruthlesslyrevised. (Cf. Nollan v. California Coastal Comm'n,supra, 483 U.S. at p. 831 [107 S. Ct. at p. 3145] ["To saythat the appropriation of a public easement across alandowner's premises does not constitute the taking of aproperty interest but rather . . . 'a mere restriction on itsuse,' . . . is to use words in a manner that deprives them ofall their ordinary meaning."].)

The majority's discussion concludes with aproposition that is flatly incompatible with Lucas: "[W]emust determine not whether a sinister purpose lurkedbehind the [c]ommission's decision, but rather whetherthe development restrictions imposed . . . substantiallyadvanced some legitimate state purposes so as to justifythe denial of the development permit." (Maj. opn., ante, atp. 1022, italics added.) Had Lucas never been decided;had the commission not denied plaintiffs all use of theirproperty; had Penn Central's ad hoc test the slightestrelevance to this case, the majority's conclusion mighthave some bearing here. But none of these things is true.

The remainder of the majority opinion continues tojoust with its own strawman. Yet, to repeat: The test isnot "whether the development [**1212] [***865]restrictions imposed on the subject property substantiallyadvanced some legitimate state purposes." (Maj. opn.,ante, at p. 1022.) That formula, lifted from Penn Central,simply is no longer relevant under the circumstanceshere; indeed, the inquiry is barred by Lucas. And themajority's conclusion--that though the commission may

have been "mistaken given the peculiar facts of this case,its position was not so objectively unreasonable as to giverise to the inference that it was adopting that positionsolely for purposes of delay or some other illegitimatereason" (maj. opn., ante, at p. 1025)--is obstinately besidethe point.

The majority persistently misstates andmischaracterizes both the issue before us and governingtakings law. In the end, however, the majority is [*1043]finally forced to concede the meaning of First Lutheran:"[It] . . . stands for the proposition that once agovernment action finally denies all economically viableuse of property, the fact that the government laterrescinds that action after a judicial proceeding does notrelieve it of its duty to pay compensation." (Maj. opn.,ante, at p. 1030, italics added.)

Yes, exactly; and that is this case. As plaintiffs pointout, were that not the law, the holding of Lucas would beemasculated. If any "threshold," "jurisdictional" assertionby a government land use agency that has the effect ofbarring all economically beneficial use of property can beconverted into "the recognition that a judicialdetermination of the validity of certain preconditions todevelopment is a normal part of the development process"(maj. opn., ante, at p. 1030, italics in original), then, inCalifornia, at least for now, Lucas is a dead letter.

CONCLUSION

When the answer to every question about what thepublic needs or wants or should have is always "more,"the demand for free public goods is infinite. Against thisrelentless siphon, the takings clause, and the courts'ardent defense of it, stands as a last lonely bulwark ofproperty rights. It is, and will continue to be, a difficultrampart to maintain. That difficulty is built right into ourconstitutional structure. But, in one area at least we havearrived at a clear understanding: When the governmentdenies all economically viable use of property, eventemporarily, it may not achieve its ends "by a shorter cutthan the constitutional way of paying for the change." (Penna. Coal Co. v. Mahon, supra, 260 U.S. at p. 416 [43S. Ct. at p. 160].) In these limited circumstances,government must turn square corners--except inCalifornia.

Baxter, J., concurred.

17 Cal. 4th 1006, *1041; 953 P.2d 1188, **1211;


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