MACDONALD, SOMMER & FRATES, A PARTNERSHIP, APPELLANT V. THE COUNTY OF YOLO AND THE CITY OF DAVIS No. 84-2015 In the Supreme Court of the United States October Term, 1985 On Appeal From the Court of Appeal of California, Third Judicial Circuit Brief for the United States as Amicus Curiae TABLE OF CONTENTS Questions presented Interest of the United States Statement Summary of argument Argument I. The threshold issue in cases alleging a "taking" is whether the claim is premature II. If the court reaches the merits of the "taking" claim, the court of appeal erred in dismissing the complaint A. A regulatory prohibition against the use of property, even if temporary in nature, can in certain circumstances constitute a "taking" B. The Court need not decide whether the Fifth Amendment requires the California courts to award money damages for an alleged "taking" of appellant's property, because 42 U.S.C. 1983 furnishes a cause of action Conclusion QUESTIONS PRESENTED 1. Whether in its present procedural posture appellant's claim of a "taking" of its property without just compensation, in violation of the Just Compensation Clause of the Fifth Amendment, is ripe for decision by this Court. 2. Whether appellant has a cause of action for money damages, either directly under the Just Compensation Clause or under 42 U.S.C. 1983, for an alleged "taking" of its property without just compensation as a result of the County's denial of its subdivision proposal. INTEREST OF THE UNITED STATES This case raises important questions concerning (i) when a claim of a "taking" of property as a result of the action of an administrative agency is ripe for judicial consideration, and (ii) whether a governmental entity may be required to pay compensation for the period of time between when a regulatory measure is enjoined as an unconstitutional taking of property without just compensation. The Court's decision therefore may have a significant impact on the administration of federal regulatory programs affecting land or other property interests. STATEMENT Appellant MacDonald, Sommer & Frates, a partnership, is the owner of two contiguous tracts of land in Yolo County, California. Appellant brought this action seeking a money judgment for an alleged "taking" of appellant's property after the County's Board of Supervisors rejected its proposal for the subdivision of one of the two tracts. The Superior Court for Yolo County sustained a demurrer to the fourth amended complaint (J.A. 99-110), and the Court of Appeal affirmed (J.A. 115-126). The statement of facts therefore is drawn principally from the fourth amended complaint (J.A. 42-82). 1. One of appellant's two parcels, which it purchased in 1971, is an irregularly shaped tract that consists of a large rectangle and a smaller rectangle protruding from it to the west (J.A. 43). The boundary of the City of Davis falls at the westernmost edge of the smaller rectangle (J.A. 67). Since 1966, this property has been zoned for single and multi-family residential use, and it is so described in the County's General Plan (J.A. 44). /1/ The area immediately to the south of the larger rectangle contains a golf course surrounded by single family residences. However, the other adjacent lands have not been developed. The land to both the east and west is under cultivation, and the property to the north is owned by the State Division of Forestry. Appellant's second parcel is a long, thin rectangle that is essentially a westerly extension of the protruding rectangular portion of the 44-acre tract. This 15-acre parcel is located entirely within the City of Davis. At its western edge is the current terminus of a public street known as Cowell Boulevard. J.A. 43, 44, 67. 2. In April 1975, appellant submitted a tentative map to the Yolo County Planning Commission for a proposed subdivision of the 44-acre tract into 159 single and multi-family lots (J.A. 49). /2/ Under California's Subdivision Map Act, approval of such a tentative map is the first step in subdividing property for residential development. Cal. Gov't Code Section 66452 (West 1983). The map indicated that access to the proposed subdivision would be provided by extending Cowell Boulevard from its existing terminus in the City, across appellant's 15-acre strip, and into the subdivision -- a distance of about 1300 feet (J.A. 77). 3. The Planning Commission denied the tentative map, and the Board of Supervisors, after a hearing, sustained that denial (J.A. 71-80). In its notice and findings, the Board determined that the proposal was inconsistent in a number of respects with the requirements of the County's General Plan that development shall be "sound and orderly" (J.A. 73). a. The Board first concluded that the proposal was inconsistent with the purpose of the General Plan "to prevent the piecemeal development of subdivisions within agricultural zones which results in the impossibility of economically farming the remaining parcels" (J.A. 73). The Board found that appellant's 44-acre tract "is located within an area of prime agricultural land," although it acknowledged that the character of the soil on appellant's tract was "impaired" by the sale of some of the soil (apparently in the 1960s) for the construction of Interstate 80 (J.A. 74; see J.A. 45; Appellant's C.A. Br. 2 n.2). The Board noted that the closest developed parcel to the west of appellant's tract was separated by a 56-acre parcel that was under cultivation. In the Board's view, appellant's proposed subdivision would render the cultivation of those intervening 56 acres economically infeasible because dust, pesticides, and crop dusting operations would become a nuisance to the residents of the subdivision. J.A. 73-74. b. The Board next found the proposal to be inconsistent in several respects with the requirement of the County's General Plan that "the spread of development shall be controlled to provide for efficient services to developments by community facilities and utilities" (J.A. 73): First, the Board noted that the County Code sections implementing the General Plan require that there be adequate provision for ingress and egress for every subdivision. The only access to the subdivision shown on the tentative map appellant submitted was by way of an extension of Cowell Boulevard across appellant's 15-acre strip in the City of Davis. However, the City had reported to the Board that it would not accept dedication of the proposed extension of Cowell Boulevard as a public City street or enter into an agreement with the County or a special district to allow maintenance of Cowell Boulevard within the City. /3/ The Board therefore found that the proposed subdivision did not comply with provisions of the Yolo County Code that require each parcel of a subdivision to be served by a public street. The Board further found that the extension of Cowell Boulevard as a private road would not comply with the County Code requirement that there be adequate ingress and egress for a subdivision. J.A. 74-75. Second, the Board found that although the tentative map contemplated that sewer service would be furnished by the El Macero Intercepter Sewer Line on the eastern-most boundary of the proposed subdivision, the conditions necessary to connect to that line had not been satisfied. The Board explained that County Agreement 75-97, which governs the use and operation of the line, requires that before any new connection to the line can be approved by the County, the area to be served would have to be annexed to the El Macero County Service Area. That annexation, the Board pointed out, was "subject to Local Agency Formation Commission (LAFCO) jurisdiction," /4/ and there were "no proceedings currently pending before LAFCO for the annexation of the proposed subdivision" (J.A. 75). Third, the Board found the tentative map deficient with respect to the provision of other services as well. For example, the Board noted that appellant's proposal did not provide for the furnishing of water or maintenance of a water system by any governmental entity (it instead contemplated water service by a private water company), and that there was no provision for parks and recreational facilities or for the maintenance, lighting and cleaning of Cowell Boulevard or the streets in the subdivision. J.A. 76. Similarly, the Board found that the County Sheriff's Department, which has law enforcement jurisdiction of the site, was not capable of furnishing the level of police protection required for the subdivision. J.A. 76. c. Finally, the Board concluded that the limited access to the subdivision afforded by the proposed 1300-foot extension of Cowell Boulevard "constitutes a real and substantial danger to the public health in the event of fire, earthquake, flood, or other natural disaster and could render said subdivision unaccessible in said event" (J.A. 77). 3. On October 13, 1977, appellant filed a petition in the Superior Court against the County and City for writs of administrative mandamus. MacDonald, Sommer & Frates v. County of Yolo & City of Davis, No. 36657 (Yolo Super. Ct). An amended petition was filed on January 23, 1981 (J.A. 21-33), and is still pending (J.A. 121). In the amended petition, appellant contends, inter alia, that the County acted in contravention of its General Plan and zoning ordinance and that the alleged restriction of appellant's property to agricultural use and denial of access to the property resulted in a taking of property without compensation, in violation of the United States and California Constitutions. Appellant seeks an order setting aside the June 14, 1977 decision denying appellant's tentative subdivision application and directing the County to reconsider that application. C.A. App. 597, 601. 4.a. On the same day that appellant filed its petition for a writ of mandate (October 13, 1977), appellant also filed the instant suit in the Superior Court (C.A. App. 1-20). After demurrers to the original and several amended complaints were sustained, appellant filed its fourth amended complaint on October 15, 1981 (J.A. 42-66). /5/ Appellant maintained that in denying its subdivision proposal, the County had determined that the property could be used only for agricultural purposes (J.A. 51). Appellant alleged that the City had contributed to the County's determination by (i) representing to the City that the parcel was designated as an agricultural reserve on the City's General Plan; (ii) refusing to accept annexation of the parcel or to furnish other City services to it; (iii) refusing to accept dedication of Cowell Boulevard or to permit it to be maintained by the County or private parties; and (iv) approving another subdivision adjacent to the City that would be annexed to the City and have a road configuration that would deprive appellant of access to public streets. Appellant further alleged that although the City purported to be acting pursuant to a policy of preserving prime agricultural land and preventing developments for which there were no immediately available City services, the City and County had permitted and facilitated other developments. Thus, appellant contended, their positions regarding appellant's property were "inconsistent, discriminatory, arbitrary and unreasonable" (J.A. 49-50). Appellant further alleged that the County had "unlawfully delegated its planning and land-use regulatory functions and responsibilities to (the) City, and (had) unlawfully abrogated its own General Plan and zoning ordinances" (J.A. 50). As relief, appellant sought, inter alia, "damages in inverse condemnation," on the theory that the restrictions were imposed upon its property for the public purpose of creating an open space area for the use, benefit and enjoyment of the City and County. In appellant's view, this action amounted to a taking of property for a public purpose without compensation, in violation of Article I, Section 19 of the California Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. In addition, appellant sought damages against the City and County under 42 U.S.C. 1983 for an alleged taking of its property without just compensation. J.A. 65. /6/ b. The Superior Court sustained the demurrers filed by the County and City (J.A. 99-110), and the California Court of Appeal affirmed (J.A. 115-126). At the outset the Court of Appeal stated its holding "that the complaint does not allege facts sufficient to constitute causes of action in inverse condemnation, denial of access or under the federal Civil Right Act." Accordingly the court stated that it "need not consider whether the complaint was barred by the failure to exhaust administrative remedies" (J.A. 125-126). Relying on the decision of the California Supreme Court in Agins v. Tiburon, 24 Cal.3d 266, 598 P.2d 25, 157 Cal. Rptr. 372 (1979), aff'd, 447 U.S. 255 (1980), the Court of Appeal held that the appropriate remedy where a land use regulation is challenged on the ground that it results in a taking without just compensation is not inverse condemnation, but an action to have the regulation set aside as unconstitutional. In this case, the court concluded that appellant's pending mandamus action was the appropriate procedure to be followed (J.A. 120-122). The court further held that, even if an inverse condemnation action were available, appellant had failed to state a cause of action (J.A. 122-123). The court explained that appellant had simply "applied for approval of a particular and relatively intensive residential development," and "(t)he denial of that particular plan cannot be equated with a refusal to permit any development," because the property was still zoned as residential (J.A. 133). /7/ The Court of Appeal also rejected appellant's argument that even if the sole remedy under California law is mandamus, appellant nevertheless could recover damages under 42 U.S.C. 1983. The court reasoned that in order for appellant to recover under Section 1983, any deprivation of property must have been without due process of law. Resolution of that question, in the court's view, depended on whether the State has provided an adequate remedy in the event of a deprivation. The court held that under the California Supreme Court's decision in Agins, adequate remedies do exist -- mandamus or a declaratory judgment -- if a property owner believes that a land-use regulation amounts to an uncompensated taking of private property. The court further held, however, that even if an action for damages might lie under 42 U.S.C. 1983 based on a regulation of the use of property, appellant's allegations in this case would be insufficient to support recovery because the County's refusal to approve the one development proposal did not rule out other, less intensive ones. J.A. 135. SUMMARY OF ARGUMENT I. This case presents the question whether the denial by the County's Board of Supervisors of appellant's proposal to use his land for a subdivision constitutes an unconstitutional "taking" of property that entitles appellant to just compensation. As this Court made clear in Williamson County Regional Planning Commission v. Hamilton Bank, No. 84-4 (June 28, 1985), slip op. 17, in order for there to be a ripe taking claim in this context, the agency must have arrived at a definitive position with respect to the extent to which development will be permitted on the particular parcel of land. Only then would it be possible to determine that the government had either acquired or divested from the owner an identifiable interest in the real property involved. Moreover, because the determination of whether a taking has occurred turns on an essentially ad hoc factual consideration of the impact of the regulatory action, it is only after the agency has issued its final decision that the actual impact of the regulatory restrictions can be measured. This case, however, is presented in an unusual procedural posture. It is unclear whether the Court of Appeal ruled on the threshold issue of whether the Board of Supervisors rendered a decision that finally determined the extent to which appellant would be permitted to develop its land. While concluding that the Board of Supervisors' rejection of appellant's one development proposal did not rule out other less intensive uses of the land, the Court of Appeal stated explicitly that it was not passing on the question whether appellant had exhausted its administrative remedies. Appellant's claim was that exhaustion would have been futile; appellee's only responsive pleading was a demurrer. And it is unclear as a matter of California procedure to what extent the appellee's demurrer is deemed to be an admission that further exhaustion would be futile. In these circumstances the procedural posture of the case makes for an extremely abstract presentation of the significant legal issue whether an action for damages will lie when governmental regulation rises to the level of a taking. On the other hand, the merits of the question are deserving of resolution by this Court. With respect to ripeness, we suggest that this court recognize the importance of ripeness as an element of any cause of action and that it continue its adherence to Williamson County either in its own determination, if any, of the issue or in its instructions on remand. II. Appellant's claim of a "taking" as a result of the Board of Supervisors' denial of its subdivision proposal raises important questions under the Just Compensation Clause of the Fifth Amendment. A. As an initial matter, several threshold issues may be readily disposed of. First, the government is required by the Fifth Amendment to pay just compensation as a condition to the lawful acquisition not only of fee title to land, but also of an interest that is not permanent in duration. Second, since this Court's decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), it has been clear that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Id. at 415. Because regulation of land may constitute a "taking" within the contemplation of the Fifth Amendment, and because a temporary appropriation of land likewise constitutes a "taking," it follows that a regulatory restriction on the use of land that is of only temporary duration may, in appropriate circumstances, constitute a "taking" that implicates the Just Compensation Clause. B. However, the conclusion that the temporary application of a regulatory measure could in some circumstances result in a taking does not answer the question presented in this case. The Court of Appeal held that an action for inverse condemnation does not lie in California courts even if the application of a land-use regulation to a particular parcel of land does rise to the level of a taking. This ruling fails to take into account the fact that a compensable taking of property might occur between the date on which the application of the regulation became final and the date on which it was invalidated; and, if allowed to stand, the ruling's effect is to permit state and local agencies in California to take property (for the interim period) without the payment of compensation. To say that a compensable taking may occur during this interim period does not resolve the question whether the Just Compensation Clause, of its own force, creates a damage remedy. Respectable arguments can be made on both sides of this issue. There is no need in this case, however, for the Court to determine whether the Fifth Amendment, of its own force, requires a court to order payment when a governmental entity takes action that amounts to a taking. In this case, appellant sought damages under 42 U.S.C. 1983, which provides a damage remedy for constitutional violations committed by municipal entities. Where Congress has enacted a statute to provide compensation to persons injured by constitutional violations, that remedy first should be tested before determining what remedies are required by the Constitution itself. Section 1983 provides an adequate remedy under either view of the nature of the cause of action in circumstances such as those alleged in this case. The Court of Appeal rejected appellant's cause of action under 42 U.S.C. 1983 on the ground that the availability of a procedure for a writ of mandate or declaratory judgment furnished an adequate remedy in the event of a deprivation and thereby eliminated any due process claim. This was error. Whether a taking has occurred during the period between the time the regulatory action becomes ripe and the time when it is invalidated should instead be determined by the same ad hoc factual analysis that this Court has applied in the takings area generally, considering the nature of the governmental action involved, the economic impact of the regulation, and the extent of the interference with reasonable investment-backed expectations. Therefore the case should be remanded for the Court of Appeal to consider the allegations in appellant's complaint under these standards. ARGUMENT I. THE THRESHOLD ISSUE IN CASES ALLEGING A "TAKING" IS WHETHER THE CLAIM IS PREMATURE A claim of a taking can arise only if the responsible administrative agency "has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question." Williamson County Regional Planning Commission v. Hamilton Bank, No. 84-4 (June 28, 1985), slip op. 17. This finality requirement is reinforced by the nature of the subject to which the Just Compensation Clause is directed: the acquisition of an identifiable interest in property by the government or the divestment of such an interest from the owner. See United States v. Causby, 328 U.S. 256, 267-268 (1946). Accordingly, an actual "taking" of a property interest by the government as a result of the operation of a regulatory program properly can be found only where the responsible official has made a deliberate and conclusive judgment regarding the extent to which the property will be restricted. We need not belabor the obvious and critical importance of the proposition that the mere contemplation by a government and its agents of a regulatory action that might constitute a "taking," when and if implemented, should not entitle a plaintiff to advisory judicial review of the proposed action or to damages. Stated simply, there can be no constitutional injury until the governmental action is "complete" (Williamson County, slip op. 22). Thus ripeness is in essence a necessary element of a cause of action based on a taking without just compensation. Moreover, this ripeness prerequisite "is compelled by the very nature of the inquiry required by the Just Compensation Clause" (Williamson County, slip op. 17), which depends on an "essentially ad hoc" consideration (Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978)) of the economic impact of the challenged action and the extent to which it interferes with reasonable investment-back expectations (Williamson County, slip op. 17). This is particularly true in a case such as this one, where the alleged taking is based on the effect of regulations which are claimed to have deprived the landowner of all economic value of his property and where there is a request for compensation for the period of time from the taking until the lifting of the regulation. For in such cases it is crucial to determine (1) whether some alternative economically valuable uses were available to the landowner, if only he had sought permission to pursue them, and (2) if such alternative uses are not available, what the duration of the deprivation was. The weighing of these and other factors cannot be evaluated until the agency has arrived at a definitive position. The factors to be considered in making a determination of ripeness in the context of land-use planning regulations were set out by this Court last term in Williamson County. We believe that the opinion of the Court in Williamson County is a fair and correct statement of the law in this area, and we do not believe that the instant case presents any reason for reexamining the Court's decision there. However, because of the procedural posture of this case, it may be that this Court is not presented with a situation that would require it to apply the rule of Williamson County to the facts here. Appellant alleged that the County had determined that the property could be used only for agricultural purposes and had absolutely precluded any development or beneficial use of the property; that any applications for variances or other relief would have been futile; and that he therefore had exhausted his administrative remedies (J.A. 58; J.S. 8-10). While the Board of Supervisors did articulate particular reasons for disapproving the tentative map that appellant filed (J.A. 73-77) and appellant did not offer a revised tentative map to the Board in order to meet its objections (J.A. 133), the important fact here is that this case has come before this court on a demurrer to the complaint in California state court. /8/ To the extent that under California procedural law the allegations of futility and complete deprivation are deemed to be admitted by appellees on a demurrer, this Court may deem, arguendo, that there is ripeness for purposes of deciding whether there exists a cause of action (one of the elements of which is ripeness) for compensation for an interim, regulatory taking of property. Such a deemed ripeness should not and will not lessen appellant's burden of eventually demonstrating the finality of the administrative action either on remand to the Court of Appeal or when put to its proof at trial on subsequent remand to the Superior Court. There is, however, a regrettable confusion in the opinion of the court below about the appropriate judicial treatment of the allegation of ripeness on the demurrer to the complaint in this case. In the introductory section of its opinion, the California Court of Appeal stated that it did not consider "whether the complaint was barred by the failure to exhaust administrative remedies" (J.A. 125-126). Nevertheless in the body of its opinion the Court of Appeal states that "even if an inverse condemnation action were available" (J.A. 132), appellant's complaint failed to state a cause of action because "as in Agins, the refusal of the defendants to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development" (J.A. 133). This ambiguity points this Court in two quite divergent directions. The determination in the introductory section would seem to force on this Court the constitutional question of what remedy if any is required when all the elements of a taking have been met, since that determination denies the availability of a damage remedy on the assumption that they have been met. The body of the opinion, however, acknowledges the existence of a number of open questions and avenues of administrative relief which if pursued might well dispel the constitutional deprivation appellants allege. The Superior Court found at the trial level that the case was not ripe. The questions posed in the jurisdictional statements of the parties would leave open the issue of whether the facts of this case actually pose a ripe claim. Instead, they implicate ripeness in a conclusory way only as a necessary element in a valid cause of action on demurrer. The issues on the merits of this case are important and deserve resolution. On the other hand, this Court has a proper reluctance to consider issues in an excessively abstract posture. However the Court resolves this preliminary question in the unusual procedural status of this case as described above, we urge with respect to ripeness (1) that this Court reaffirm the importance of ripeness as an element of any "taking" cause of action and (2) that, if the Court should decide that it does not at this time wish to delineate the other constituent elements of a valid "taking" cause of action, if such there be, prior to a determination of ripeness, that the Court should continue its adherence to the principles of Williamson County either in its own determination of the issue or in its instructions on remand for a more complete consideration of the issue by the court below. /9/ II. IF THE COURT REACHES THE MERITS OF THE "TAKING" CLAIM, THE COURT OF APPEAL ERRED IN DISMISSING THE COMPLAINT Appellant's claim for a money judgment against the City and County raises important questions regarding the Just Compensation Clause of the Fifth Amendment. A. A Regulatory Prohibition Against The Use Of Property, Even If Temporary In Nature, Can In Certain Circumstances Constitute A "Taking" Whatever the analytical complexity of certain aspects of the overall "regulatory taking" controversy that has so frequently attracted the Court's attention in recent years, two points are, we think, clearly established. The first point is that the government is required by the Fifth Amendment to pay compensation not only as a condition to its acquisition of fee title or its functional equivalent, but also as a condition to the taking of a lesser interest -- such as an appropriation of a leasehold or other interest that is not permanent in duration. See, e.g., United States v. General Motors Corp., 323 U.S. 373 (1945); Kimball Laundry Co v. United States, 338 U.S. 1 (1949). In this sense, a "temporary taking" of property is plainly within the scope of the Just Compensation Clause. The second point concerns the application of the Just Compensation Clause beyond the context of an actual physical appropriation or invasion of a person's private property by the government to a regulatory restriction on the use or exploitation of property by its owner. This issue was laid to rest by Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). There, although the Court stressed the obvious truth that "(g)overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law," the Court held that when the diminution occasioned by the regulation of property "reaches a certain magnitude, in most if not all cases there must be an exercise of eminent domain and compensation to sustain the act." 260 U.S. at 413. In other -- and oft-quoted -- words: "The general rule at least, is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Id. at 415. On a number of occasions since Mahon was decided, the Court has adhered to the view that "governmental land-use regulation may under extreme circumstances amount to a 'taking' of the affected property." United States v. Riverside Bayview Homes, No. 84-701 (Dec. 4, 1985), slip op. 4. See, e.g., Williamson County, slip op. 12; Penn Central, 438 U.S. at 124. Because regulation of land may constitute a "taking" within the contemplation of the Fifth Amendment, and because a temporary appropriation of land likewise can constitute a "taking," it would seem to follow inexorably that a regulatory restriction on the use of land that is of only temporary duration may also, in appropriate circumstances, constitute a "taking" that implicates the Just Compensation Clause. B. The Court Need Not Decide Whether The Fifth Amendment Requires The California Courts To Award Money Damages For An Alleged "Taking" Of Appellant's Property, Because 42 U.S.C. 1983 Furnishes A Cause Of Action 1. The proposition discussed in Point A that the temporary application of a regulatory measure to particular property may result in a "taking" within the meaning of the Fifth Amendment does not, however, dispose of this case. The courts below did not address the question whether the Board's denial of appellant's subdivision proposal would give rise to a taking if the resulting limitations on the use of appellant's property were given permanent effect. Nor did the courts below determine whether a taking had occurred as a result of the temporary inability of appellant to develop its property pending resolution of appellant's action to invalidate the regulation. Instead, the court sustained the demurrer to the complaint on the ground that, under the California Supreme Court's decision in Agins, an action does not lie in California courts for inverse condemnation even if the application of a zoning ordinance or other land-use regulation to a particular parcel of land does rise to the level of a taking. Consistent with Agins, the Court of Appeal held that a suit to invalidate the administrative action is the only available remedy. See J.A. 132-133. The error in the analysis of the court below is its failure to recognize that invalidation of the regulation does not necessarily end the constitutional inquiry. There may indeed be a taking of property during the period between the date the regulation became final and the date on which it was invalidated. Hence, California law, which appropriately provides that a regulation which deprives the landowner of economically viable use must be invalidated, nonetheless expressly fails to provide to the landowner a remedy for the interim period. Thus the rule established in the California Supreme Court's Agins decision may have the effect of allowing state and local governments in California to "take" property (for the interim period) without paying the owner any compensation. The plain text of the Constitution forbids the government from "taking" property -- even temporarily -- without paying for it. As the Court has noted, the Fifth Amendment "undertakes to redistribute certain economic losses inflicted by public improvements so that they will fall upon the public rather than wholly upon those who happen to lie in (their) path" (United States v. Willow River Power Co., 324 U.S. 499, 502 (1945) ). But when a taking occurs during that interim period, the California Supreme Court has frustrated the Constitution's Just Compensation guarantee that "was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49 (1960). 2. To say that a taking without just compensation may occur during the interim period, does not, however, answer the question whether the Just Compensation Clause itself creates an automatic damages remedy. The fact that the Constitution refers to "compensation" for property "taken" suggests that the Clause itself provides a damages remedy. Moreover, this Court has embraced the view that the Just Compensation Clause has a "'self-executing character * * * with respect to compensation.'" United States v. Clarke, 445 U.S. 253, 257 (1980) (quoting 6 J. Sackman, Nichols' Law of Eminent Domain Section 25.41 (3d rev. ed. 1980) ). As Justice Brennan noted in his dissent in San Diego Gas & Electric Co v. City of San Diego, 450 U.S. 621, 653-657 (1981) (Brennan, J., dissenting), "(t)his Court has consistently recognized that the just compensation requirement of the Fifth Amendment is not precatory: once there is a 'taking,' compensation must be awarded" (emphasis in original). For example, in Jacobs v. United States, 290 U.S. 13, 16 (1933), the Court held: The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment. Under an analysis which implies an automatic damages remedy, there is no need to resort to a statute because "(t)he rights of the * * * property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as a price for the taking." Berman v. Parker, 348 U.S. 26, 36 (1954). /10/ Accord, United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958). Under an alternative theory, however, the phrase "without just compensation" in the Clause might be read merely to make the existence of a means for obtaining compensation a "condition precedent" to the lawful taking of property by the Government. And this court has in dicta in the past so construed the Clause. Sweet v. Rechel, 159 U.S. 380, 399 (1895); see also United States v. Jones, 109 U.S. 513, 518 (1883). Read in this way, if a court concludes that the condition precedent is not satisfied because the legislature has not provided for compensation, the only constitutionally required remedy may be for the court to order the Government to give back to the owner the property it was found to have taken, not to order the government to perform the condition itself, by paying compensation. /11/ Whether the Just Compensation Clause itself provides a damages remedy must also be considered in light of cases which hold that "(t)he taking of private property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do so by some act of Congress, is not an act of the Government" that gives rise to a claim for just compensation. Regional Rail Reorganization Act Cases, 419 U.S. 102, 127 n.16 (1974), quoting Hooe v. United States, 218 U.S. 322, 336 (1910). /12/ The actions of an Executive officer in those circumstances would be tortious, and would create no liability unless Congress had so provided. See United States v. North American Co., 253 U.S. 330, 334 (1920). Under this theory the remedy instead is an action against the government officer involved for injunctive relief, and, subject to established immunities, for damages. See United States v. Lee, 106 U.S. 196 (1882). See also Larson v. Domestic & Foreign Corp., 337 U.S. 682, 696-698 (1949); Cherokee Nation v. Kansas Ry., 135 U.S. 641, 649-650 (1890). Where an action is brought against a State, implying a damages remedy directly under the Just Compensation Clause raises the additional constitutional issue of the viability of the Eleventh Amendment immunity of the state in federal court and the state's immunity to suit in its own courts except as it consents to suit. 3. There is no need at the present time, however, for a resolution of the difficult question whether the Fifth and Fourteenth Amendments solely by their own combined force require courts to order payment when a governmental entity takes regulatory action that "goes too far" and therefore amounts to a taking. In this case, appellant also sought relief in the courts below under 42 U.S.C. 1983, and that statute would appear to furnish a sufficient basis for a monetary recovery. Section 1983 provides that "(e)very person" -- which includes a municipality, see Owen v. City of Independence, 445 U.S. 622 (1980) -- who, under color of any statute or ordinance of a state, causes another person to be subjected "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Where Congress has enacted a statute for the specific purpose of compensating persons injured by constitutional violations, that remedy should be pursued first. Only if it is found inadequate in practical application should the Court consider the recognition of remedies compelled or implied by the Constitution itself. Cf. Bush v. Lucas, 462 U.S. 367, 374-380 (1983). /13/ In our view, 42 U.S.C. 1983 furnishes an adequate basis for recovery of a money judgment under either of the two theories of the nature of the cause of action that could arise if a regulatory measure goes "too far" in affecting property and therefore has the same effect as a taking accomplished by the exercise of the power of eminent domain. Under the first theory (that the regulatory action is a taking for which the Fifth Amendment of its own force requires a court to award just compensation to the owner of the affected property, whether or not the legislature has made compensation available when it authorized the conduct involved), a cause of action would lie under 42 U.S.C. 1983 to recover the compensation that the Fifth Amendment itself makes available. On the second theory, the failure of the legislature to furnish a means by which the owner may recover just compensation renders that action unconstitutional and void under the Just Compensation Clause of the Fifth Amendment. In that event, 42 U.S.C. 1983 would furnish a cause of action for damages for the injury sustained as a result of that violation. Under this second theory, the illegality is confined to the failure to compensate the owner for the property. It therefore follows that the appropriate measure of damages in an action under 42 U.S.C. 1983 for the injury sustained is the just compensation that the Fifth Amendment required to have been made in order to sustain the governmental action. If the property owner receives a money judgment in that amount, the constitutional defect -- the absence of compensation -- is completely cured. For the foregoing reasons, 42 U.S.C. 1983 furnishes a suitable basis of recovery of money damages for the alleged "taking" of appellant's property, whether or not the Fifth Amendment, standing alone, compelled the courts of California to make such an award. /14/ 4. The Court of Appeal rejected the Section 1983 claim on the ground that there could be no due process violation if the state has furnished an adequate remedy in the event of a deprivation. J.A. 135, citing Parratt v. Taylor, 451 U.S. 527, 536 (1981). The Court of Appeal apparently was referring to the availability of mandamus as the adequate remedy. We of course agree that the availability of a mechanism for a prompt challenge to a regulatory measure that, if made permanent, would effect a taking is an important ingredient in determining whether an interim taking has occurred. A landowner should not be excused from pursuing available judicial remedies which seek to have the regulatory restraint lifted at the earliest possible date. Cf. United States v. $8,850 in United States Currency, 461 U.S. 555, 568-569 (1983). But it also is clear that the operation of the regulation during the interim period may in certain circumstances amount to a taking. Whether a taking has occurred during this period depends upon the same sort of ad hoc factual inquiry that this Court has applied in the takings area generally. For this reason, in our view, the Court of Appeal erred in concluding that an action will never lie under 42 U.S.C. 1983 in this setting simply because the state has afforded a procedure for lifting the challenged regulatory measure on a prospective basis. Accordingly, if the Court reaches the issue, it would be appropriate for the Court to vacate the judgment below and remand the case to the Court of Appeal for further consideration of the allegations in the complaint under 42 U.S.C. 1983. Then, if appropriate, the Court of Appeal could remand the case to the Superior Court for suitable coordination with appellant's pending mandate action, should appellant choose to revive it. 5. The factors to be considered under 42 U.S.C. 1983 in determining on remand whether appellant has sufficiently alleged or established that a Fifth Amendment violation has accrued pending the outcome of the mandate proceeding are essentially the same as those that bear on the question of whether a taking would result from the permanent application of the regulatory restriction -- albeit they must be applied with due regard for circumstances that are unique to the interim or temporary nature of the deprivation. Under this Court's decisions, the relevant considerations in any regulatory taking case are: (1) "the character of the governmental action," (2) "(t)he economic impact of the regulation," and (3) the extent to which there has been an interference with "distinct investment-backed expectations" (Penn Central, 438 U.S. at 124; see also Kaiser Aetna, 444 U.S. at 175; Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) ). Because the Court of Appeal did not consider whether the allegations of the complaint state a cause of action under 42 U.S.C. 1983 for any "taking" of appellant's property that might have occurred pending the outcome of the mandate proceeding, we believe that if this Court reaches the "taking" issue it should remand the case for consideration of these matters. CONCLUSION If the Court reaches the question of the availability of a damages remedy, the judgment of the Court of Appeal should be vacated and the case should be remanded to the Court of Appeal for further consideration of appellant's cause of action under 42 U.S.C. 1983. Respectfully submitted. CHARLES FRIED Solicitor General F. HENRY HABICHT Assistant Attorney General CAROLYN B. KUHL Deputy Solicitor General ROGER J. MARZULLA Deputy Assistant Attorney General STEVE A. MATTHEWS PETER R. STEENLAND RAYMOND B. LUDWISZEWSKI Attorneys DECEMBER 1985 /1/ Under California law enacted in 1965, the legislative body of each county and city must adopt "a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside of its boundaries which in the planning agency's judgment bears relation to its planning." Cal. Gov't Code Section 65300 (West 1983). State law prescribes certain mandatory features of such plans and detailed procedures for their adoption. See id. Sections 65300-65361. /2/ The tentative map indicated that 23.99 acres were zoned "R-1" under the Yolo County Zoning Ordinance (which provides for a principal use of one single-family dwelling per lot); 3.4 acres were zoned "R-2" (one single-family or duplex dwelling per lot); 2.11 acres were zoned "R-3" (one single family duplex dwelling or rooming house per lot); and 3.56 acres were zoned "R-4" (one professional-services building or multi-family dwelling, up to four stories tall, per lot). The map showed 143 R-1 lots, 12 R-2 lots, three R-3 lots, and one R-4 lot. The Zoning Ordinance generally provides for a minimum lot size of 6000 or 7000 square feet in those four classifications. See J.A. 67, 131-137; I Supp. C.T. 58-65. /3/ The City apparently took this position because the extension of Cowell Boulevard to appellant's property was inconsistent with the City's General Plan, which designated appellant's property for agricultural use. J.A. 118; C.A. App. 1583. See note 1, supra. Under California law, no real property in an area covered by a general plan may be acquired, by dedication or otherwise, until the planning agency has reported upon its consistency with the general plan. Cal. Gov't Code Section 65402 (West 1983). /4/ California law establishes a LAFCO in each county, consisting of two members of the county's board of supervisors, two members representing the cities in the county, and a fifth member representing the public. Cal. Gov't Code Section 54780 (West 1983). The LAFCO is charged with planning for the logical and reasonable development of local governments in the county, including the determination of each such entity's "sphere of influence" -- which is defined to mean a "plan for its probable ultimate physical boundaries and service area" (id. Section 54774). The LAFCO has the authority, inter alia, to approve or disapprove the incorporation of cities, the formation of special districts, and the annexation of territory to existing local agencies. Id. Section 54790. See generally id. Sections 54790.1 et seq. /5/ Appellant originally sought to consolidate the mandate action with the instant suit, but the court denied that motion on January 9, 1978 (C.A. App. 117), apparently because of differing standards of review in the two proceedings (id. at 109-114). /6/ As an alternative to inverse condemnation, appellant sought a declaratory judgment that the City and County's actions constituted an abuse of the police power and an appropriation of property in violation of the California and United States Constitutions. J.A. 58-59. However, the court held that mandamus, rather than an action for declaratory relief, was the appropriate California procedure (J.A. 106-107). Appellant also included in the complaint three counts seeking the return of $75,000 it had paid in assessments to the El Macero Sewer Assessment District (J.A. 62-64). The court denied relief on those counts because appellant had not exhausted its administrative remedies to recover the assessments (J.A. 109). Appellant abandoned those three counts and the declaratory judgment count on appeal (J.A. 119), and they are not at issue here. /7/ The Court of Appeal also rejected appellant's inverse condemnation action insofar as it was based on the alleged denial of access to its property by virtue of the City's refusal to accept a dedication of an extension of Cowell Boulevard and the City's opposition to the extension of that street. The court explained that in order for inverse condemnation to lie under California caselaw, there must be a denial of an already existing means of access, not the mere refusal to provide access where none previously existed. J.A. 133-134. /8/ Under California law, apparently factual allegations in the complaint are taken to be true unless "contrary to law or to a fact of which a court may take judicial notice.'" Agins v. Tiburon, 447 U.S. 255, 259 n.6 (1980), quoting Dale v. City of Mountain View, 55 Cal. App. 3d 101, 105, 127 Cal. Rptr. 520, 522 (1976). /9/ In this case, the Board of Supervisors gave a number of reasons for disapproving appellant's tentative map, one of which was that there was no provision for the furnishing of sewer services. Appellant's proposal indicated that the subdivision would be served by the El Macero sewer line. See page 5, supra. However, the Board pointed out that under the formal agreement governing that line, the site first would have to be annexed to the El Macero County Service Area; that was a matter within the jurisdiction of the LAFCO, and yet appellant had not initiated proceedings before the LAVCO for the annexation of its site (J.A. 75). This omission by appellant may be analogous to the failure by the respondent bank in Williamson County to seek variances from the application of the regulatory provisions that led to the denial of the preliminary plat, which the Court held prevented the planning commission's decision from attaining the finality necessary to give rise to a ripe taking claim. Slip op. 14-17. Alternatively, it may be usual practice not to seek such annexation until Board approval is obtained, proof of which by appellant could indicate that this objection by the Board was a subtefuge. Perhaps there were means available to appellant to minimize or eliminate other of the deficiencies the Board identified as well. Even if there were not, the key point, as the Court made clear in Williamson County, is that it is necessary to obtain a final decision on all of the agency's objections to the initial submission made by the developer before a taking claim is ripe for judicial review. Slip op. 16 n.11. Appellant also did not attempt to submit a more modest proposal in an effort to meet at least some of the Board's concerns. The Court of Appeal stated (J.A. 122-123) that this omission renders appellant's claim similar to that of the landowners in Agins. Unlike the landowners in Agins, however, appellant did submit one subdivision proposal. The Court of Appeal determined that the rejection of that one proposal "cannot be equated with a refusal to permit any development" J.A. 133). Like the landowners in Agins, appellant may remain free to pursue its reasonable investment-backed expectations by submitting a more modest proposal to the County. See Penn Central Transportation Co. v. New York City, 438 U.S. 104, 136-137 (1978) (rejection of one proposal for substantial project does not suggest a prohibition of all construction); see also Williamson County, slip op. 13-14. On the other hand, appellant has alleged that further proposals would have been futile and appellees have demurred to that complaint. It may be that such a bare, unelaborated allegation, even when demurred to, is not sufficient to overcome the necessity to make a reasonable effort to comply with administrative objections to a particular land use proposal. As the Court of Appeal observed, "(l)and use planning is not an all-or-nothing proposition" (J.A. 133); it is a complex and sensitive undertaking that requires the local agencies involved to take into account many different and competing factors. As a result, it often may be necessary for the landowner to revise his original submission in order to meet concerns identified by the planning commission, various reviewing agencies, and the public. The Court of Appeal therefore was obviously correct in concluding that "(a) governmental entity is not required to permit a landowner to develop property to (the) full extent he might desire or be charged with an unconstitutional taking of property" (ibid.). A court in any event should pay considerable deference to the determination by the agency concerned as to what constitutes the agency's final determination of the extent to which development will be permitted on the property; and a court should not consider a taking claim where administrative procedures remain to be pursued, unless there has been an authoritative representation by the agency that further pursuit of those procedures would be futile. Cf. Weinberger v. Salfi, 422 U.S. 749, 765-767 (1975). Moreover, in the absence of compelling circumstances, a court should not attempt to look behind the agency's formal decision and findings to probe the mental processes of the decision-makers in an effort to attempt a judicial resolution of the question of futility. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971); United States v. Morgan, 313 U.S. 409, 422 (1941). However, a course of dealing by the responsible agency officials amounting to bad faith in their consideration of successive proposals that were submitted by the developer in a good-faith effort to meet the agency's concerns might be regarded as an effective waiver by the agency of the need to submit further proposals. Cf. San Diego Gas & Electric Co v. City of San Diego, 450 U.S. 621, 655-656 n.22 (1981) (Brennan, J., dissenting). /10/ See also Grigg v. Allegheny County, 369 U.S. 84, 84-90 (1962); United States v. Lynah, 188 U.S. 445, 462 (1903) ("we are of opinion that the United States, having by its agents, * * * taken the property of the claimant for public use, are under an obligation, imposed by the Constitution, to make compensation") (emphasis supplied); Great Falls Manufacturing Co. v. Attorney General, 124 U.S. 581 (1888) (holding that when the government "takes" property, the owner may waive his right to have the government action invalidated and insist on recovering value, even if there was no direction from Congress to take the particular property); Kohl v. United States, 91 U.S. 367, 374 (1876). /11/ See Williamson County, slip op. 25, and cases cited; Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (the Government "may not, without invoking its eminent domain power and paying just compensation, require them to allow free access to the dredged pond"); Penn Central, 438 U.S. at 124 (referring to the question "whether a particular restriction will be rendered invalid by the government's failure to pay"); Mahon, 260 U.S. at 400, 413; Hortsmann Co. v. United States, 257 U.S. 138, 146 (1921); Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226, 238-241 (1897); Sweet v. Rechel, 150 U.S. at 398-399; United States v. Jones, 109 U.S. at 518. /12/ See also Ruckelshaus v. Monsanto, No. 83-196 (June 26, 1984), slip op. 27; Dames & Moore v. Regan, 453 U.S. 654, 688 (1981); Mitchell v. United States, 267 U.S. 341, 345 (1925). In this case, a number of the allegations in appellant's complaint charge the City and County with having engaged in unlawful conduct. See, e.g., paras. 14 (J.A. 46), 18, (J.A. 48), 21 (J.A. 49-50), 22 (J.A. 50), 25 (J.A. 51-52), 29 (J.A. 58-59), 35 (J.A. 61), 44 (63). If unauthorized conduct contributed substantially to the Board's denial of appellant's application, no lawful "taking" by the government within the meaning of the Fifth Amendment has occurred. Instead, appellant's claim is essentially one sounding in tort for wrongful conduct in the administration of a regulatory program. Compare United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), No. 82-1349 (June 19, 1984), slip op. 10-12; 28 U.S.C. 2680(a). /13/ In Agins, the landowner did not rely on 42 U.S.C. 1983, and the California Supreme Court therefore had no occasion to consider what remedies might be available under that provision. /14/ The Court in Williamson County described the alternative theory of the cause of action in somewhat different terms than we have set forth in the text. There, the Court stated that the argument advanced by the Planning Commission and the amici was that a regulatory measure can never effect a "taking" within the meaning of the Fifth Amendment, but instead should be viewed as an invalid exercise of the police power that is violative of the Due Process Clause of the Fourteenth Amendment. Slip op. 11-12, 23-26. With all respect, we do not believe (and we did not argue in our brief amicus curiae in Williamson County) that this is the correct view of the alternative theory to that under which the Fifth Amendment is self-executing. As we have explained (see pages 19-20, supra), a governmental regulation can give rise to a "taking" for purposes of the Fifth Amendment's Just Compensation Clause. Indeed, in Riverside, the Court made clear that if the denial of a permit under Section 404 of the Clean Water Act had a sufficiently severe impact, it would be a taking that gives rise to a cause of action under the Tucker Act for Just Compensation, because Congress is deemed to have made compensation available in such circumstances. Slip op. 6-7 & n.5. Under the alternative theory we set forth in the text, the question is not whether the impact on the property is accomplished by a physical appropriation rather than a regulatory measure, but whether the legislature has made compensation available for the governmental action involved in the event that it should be held by a court to amount to a taking. If the legislature has not done so, then under the alternative theory we posit, a court would hold the "taking" unconstitutional under the Just Compensation Clause (not the Due Process Clause), because it was accomplished "without just compensation."