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First English Evangelical Lutheran Church of Glendale v. Los Angeles, County of

Citation: 19 ELR 21329
No. No. B003702, 258 Cal. Rptr. 893, (Cal. Ct. App., 05/26/1989) On remand

On remand from the United States Supreme Court, the court holds that an interim county flood control ordinance prohibiting construction on plaintiff's property did not constitute a taking. After all the buildings on plaintiff's private campground were destroyed in a flood, the county passed an interim ordinance prohibiting plaintiff from rebuilding the destroyed buildings. The Supreme Court, reversing the decisions from the California courts, held that governments must pay monetary relief for temporary regulatory takings. The Supreme Court, however, expressly reserved the issue of whether the county ordinance actually constituted a taking. The California Court of Appeals now holds that the ordinance does not deny plaintiff all use of its property. The ordinance only prohibits the reconstruction of buildings destroyed in the flood and the construction of new structures. It does not prohibit any use of the campground that can be carried out without these structures. The court holds that the ordinance substantially advanced the legitimate state interest in preventing injury and death during the next flood, and thus does not state a claim for a compensable taking. The court holds that the ordinance is also justified as a reasonable temporary moratorium while the county conducted a study to determine what structures could safely be permitted on the property. The Supreme Court's decision does not convert moratoriums and other interim land use restrictions into unconstitutional temporary takings unless the restrictions are unreasonable in purpose, duration, or scope. The two and one-half years in which the interim ordinance remained in effect was reasonable. Since the interim ordinance did not constitute a taking, plaintiff is not entitled to compensation for a temporary taking between the time the interim ordinance was enacted and when it was superseded by a permanent ordinance.

[The Supreme Court's decision is published at 17 ELR 20787.]

Counsel for Plaintiff-Appellant
Michael M. Berger
Fadem, Berger & Norton
Ste. 600, 501 Santa Monica Blvd., Santa Monica CA 90406
(213) 451-9951

Counsel for Defendants-Respondents
Jack R. White, Darlene Fisher
Hill, Farrer & Burrill
34th Fl., 445 S. Figueroa St., Los Angeles CA 90071
(213) 620-0460