In Agins v. City of Tiburon,¹ one of the most intently awaited opinions of the 1979-80 Term, the United States Supreme Court upheld a municipal ordinance placing density restrictions on residential development for the sake of preserving open spaces in the hills surrounding San Francisco Bay. The Court ruled that the measure on its face did not constitute a taking since it promoted the public welfare by protecting the city's residents from the "ill-effects of urbanization"² and did not deprive plaintiffs' land of all "economic viability."³ In this conclusion the Court confirmed an important policy guide for land use legislation: the preservation of open space constitutes a legitimate police power objective.

The Court did not, however, address the problem that had initially drawn so much attention to the case. Having found no taking, the Court had no occasion to reach the question of a citizen's ability to challenge the validity of a zoning ordinance through a suit in "inverse condemnation." That issue was raised by the plaintiffs' demand for $2 million in damages⁴ as "just compensation" for the "taking" allegedly effected by the invalid ordinance. Traditionally, only mandamus and declaratory relief are available as remedies in suits challenging the constitutionality of legislative enactments, and Agins was anxiously awaited by those expecting the Court to issue an opinion upon the propriety of monetary awards in such actions.