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Pinheiro v. Marin, County of

Citation: 6 ELR 20786
No. No. 1 Civ. 37819, 62 Cal. App. 3d 323, (Cal. Ct. App., 09/30/1976)

The court affirms a lower court grant of demurrer to plaintiffs' complaint on the ground that the defendant's rezoning, which substantially reduced the value of plaintiffs' land, does not constitute a compensable taking. Plaintiffs, while acknowledging that an action in inverse condemnation does not lie for mere property value reduction, HFH, Ltd. v. Superior Court, 15 Cal. 3d 508, 6 ELR 20062 (1975), alleged that the county acquired open space without compensation by its action. But they failed to allege that their property has no remaining reasonably beneficial use. They claimed the market value to have been $960,000 before the rezoning and $210,000 after. Nor did they claim that the zoning ordinance is invalid or that the zoning created a "public use" of the property.

California courts recognize the rule enunciated in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, that property regulation that goes "too far" may constitute a taking. House v. L.A. County Flood Control Dist., 25 Cal.2d 384. See also Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587; National Land & Inv. Co. v. Kohn, 419 Pa. 504, 215 A.2d 597. This court, however, does not reach the question of whether landowners can state a cause in inverse condemnation for a taking allegedly resuting from a zoning action or whether the landowners must directly challenge the constitutional validity of the ordinance. In any event, the general rule is that municipal motive is not relevant to an inquiry into the reasonableness of an ordinance. McCarthy v. City of Manhattan Beach, 41 Cal.2d 879. A compensable taking may occur where actual public use results from restrictive zoning. Sneed v. County of Riverside, 218 Cal. App.2d 205. But plaintiffs failed to allege that the ordinance is a property-taking device rather than a land-use regulation. Morse v. County of San Luis Obispo, 247 Cal. App.2d 600. Moreover, adoption of a general land use plan does not give rise to an action for inverse condemnation. Selby Realty Co. v. City of San Buenaventura, 10 Cal. 3d 110. If the alleged public use becomes a reality, plaintiffs will then have appropriate legal remedies.

Plaintiffs have failed to allege any precondemnation activity intended to lower property value, lack of any reasonably beneficial use, or public use of their property. Their complaint is nothing more than an allegation of diminution of value from down-zoning, which is not sufficient under HFH, Ltd., supra. Since plaintiffs presented no additional facts upon which to base an amendment to their complaint, the demurrer was properly sustained without leave to amend. Burling v. Newlands, 112 Cal. 476.

The full text of this opinion is available from ELR (8 pp. $1.00, ELR Order No. C-1087).

Counsel for Plaintiff-Appellant
Edward J. Boessenecker
111 Sutter St.
San Francisco CA 94104
(415) 392-3374

Counsel for Defendant-Respondent
Douglas J. Maloney
Marin County Counsel
San Rafael CA 94901
(415) 479-1100

Caldicott, P.J., joined by Rattigan & Christian, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]