ELR Citation: ELR 20807
No(s). 84-2015 (U.S. Jun 25, 1986)

The Court holds that it cannot decide the question of whether a monetary remedy is constitutionally required when a regulatory taking is found because there has been no final determination on what use may be made of the affected property. Appellant's proposal to subdivide its property into residential lots was rejected by the Yolo County Board of Supervisors. Appellant appealed the Board's decision in state court, alleging that the county had appropriated the entire economic use of its property to provide a public open-space agricultural buffer. Appellant's takings argument was premised on the fact that its land could not be used for agriculture due to the removal of topsoil and the presence of pests in the soil. The California Superior Court sustained appellees' demurrer on the grounds that appellant failed to state a takings claim and that state law does not allow monetary damages for inverse condemnation. The California Court of Appeals affirmed and the California Supreme Court denied appellant's petition. The Court observes that before it can reach the compensation issue, appellant must first show that its property has been "taken" by the regulation. The Court holds that it cannot determine whether a takings has occurred because there has been no final determination on the nature and extent of development legally permitted on the property. The Court cannot decide whether the regulation has gone so far that it has the same effect as a physical appropriation of the property unless it knows what the regulation will and will not allow, nor can it determine whether any proferred compensation is "just" until it knows what use may be made of the property. While the Board rejected the one subdivision plan that appellant submitted on the grounds that it provided inadequate public access, sewer service, police protection, and water service, it remains possible under the holdings of the California courts that some development will be permitted. Thus, appellant has not received a final, definitive position from the Board as to how it will apply the regulation to appellant's land.

The dissent would hold that appellant adequately alleged in the state courts that any further application for development would be futile. The dissent would rule that appellant's allegations of a final decision denying it all economically beneficial uses of its property are adequate to state a takings claim. Finally, the dissent would rule that a state may not limit the remedies available to a person whose property has been taken by regulation to declaratory and injunctive relief; the state must pay just compensation when a taking occurs.

Counsel for Appellant
Howard N. Ellman, Kenneth N. Burns, Scott C. Verges
Ellman, Burke & Cassidy
One Ecker Bldg., Suite 200, San Francisco CA 94105
(415) 777-2727

Edward R. MacDonald
MacDonald & Teranishi
1140 Pitt School Rd., Suite B, Dixon CA 95620
(916) 678-2356

Counsel for Appellees
William Owen
McDonough, Holland & Allen
555 Capitol Mall, Suite 950, Sacramento CA 95814
(916) 444-3900

Richard W. Sherwood
McDonald, Saeltzer, Morris, Creeggan & Waddock
555 Capitol Mall, Suite 700, Sacramento CA 95814
(916) 444-5706