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TAKING, UNJUST

When the government acquires private property and fails to compensate an owner fairly. A taking can occur even without the actual physical seizure of property, such as when a government regulation has substantially devalued a property.

An otherwise valid exercise of the police power constitutes a taking for which compensation is due if the owner suffers a permanent, physical occupation of the property. Yee v. Escondido, 112 S. Ct. 1522 (1992); Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2900 (1992); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427-28 (1982); Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871); Ferguson, 852 P.2d at 207. Physical invasions have been found where the government interferes with the owner's "right to exclude." See, e.g., Kaiser Aetna v. United States, 444 U.S. 164 (1979) (public access to pond); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (public easement to beach); Loretto, 458 U.S. at 427-28 (installation of cable); Pumpelly, 80 U.S. at 166 (flooding); Hawkins v. City of La Grande, 843 P.2d 400 (Or. 1992) (one-time flooding).

However, the state may enter property to enforce a valid landuse regulation and destroy the offending property. This does not amount to a physical occupation even where the government's activity has a permanent effect. See Miller v. Schoene, 276 U.S. 272, 278 (1928) (permitting state entomologist to enter property and destroy diseased trees without affecting a taking); see also Bowditch v. Boston, 101 U.S. 16, 18-19 (1880) (denying compensation to owners whose houses were destroyed to prevent spread of fire); Shaffer, 576 P.2d at 824-25 (finding that city may enter to demolish substandard vacant building without compensating owner)."[T]he government affects a physical taking only when it requires the land owner to submit to the physical occupation of his land." Ferguson, 852 P.2d at 207.

"There is, of course, no federal Constitutional right to be free from changes in the land use laws." Lakeview Dev. Corp. v. City of South Lake Tahoe, 915 F.2d 1290 (9th Cir. 1990), cert. denied, 501 U.S. 1251 (1991); see also William C. Haas & Co. v. City & County of San Francisco, 605 F.2d 1117 (9th Cir. 1979), cert. denied, 445 U.S. 928 (1980). To establish a violation of their right to substantive due process, the Dodds must prove that the County's actions were "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926); see also Sinaloa Lake, 882 F.2d at 1407. A substantive due process claim requires proof that the interference with property rights was irrational and arbitrary. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). Federal judicial interference with a local government zoning decision is proper only where the government body could have no legitimate reason for its decision. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981); Herrington, 834 F.2d at 1498 n. 7. There is no denial of substantive due process if the question as to whether the government acted arbitrarily or capriciously is "at least debatable." Clover Leaf Creamery Co., 449 U.S. at 469.

According to the Supreme Court, an unconstitutional taking consists of two components: taking of property and subsequent denial of just compensation. If a property owner receives just compensation through the process the government provides, the property owner does not have a taking claim. Id. at 194-95. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985).

Inverse condemnation suits do not provide only the just compensation required under state law. Rather, such suits are a method of obtaining the just compensation required by the Fifth and Fourteenth Amendments. "A landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315 (1987). "Claims for just compensation are grounded in the Constitution itself." Id. The state procedure Williamson County references is the procedure necessary to raise a federal taking claim in state court. Thus, under Williamson County, a taking claimant must litigate the federal constitutional claim through the processes the state provides.

The Supreme Court compared the process for making a claim against state or local governments to the process for making a claim against the federal government. A taking claim against the federal government is "premature until the property owner has availed itself of the process provided by the Tucker Act, 28 U.S.C. S 1491." Williamson County, 473 U.S. at 195 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-1020 (1984)). The Tucker Act grants the U.S. Claims Court " `jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution.' " Monsanto, 467 U.S. at 1017 (citing 28 U.S.C. S 1491). Thus, a Tucker Act taking claim is a claim for the just compensation required by the Fifth Amendment. The Supreme Court indicated that the Tucker Act procedure is analogous to the state proceedings claimants must follow to obtain just compensation from state and local governments. Williamson County, 473 U.S. at 195. Therefore, claimants following state procedures, like those utilizing the procedure established under the Tucker Act, should raise the federal just compensation requirement.

The decision in Williamson County, 473 U.S. 172 (1985), established two distinct requirements for taking claims under the rubric of ripeness:

First, "the government entity charged with implementing the regulations [must have] reached a final decision regarding the application of the regulations to the property at issue." 473 U.S. at 186.

Second, plaintiffs must have sought "compensation through the procedures provided by the State for obtaining such compensation." 473 U.S. at 195.

Both the final decision and compensation elements must be ripe before the claim is justiciable.

The final decision element is well-developed. Beginning with Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978), Agins v. City of Tiburon, 447 U.S. 255 (1980), and Hodel v. Virginia Surface Min. & Reclamation Ass'n. Inc., 452 U.S. 264 (1981), the Court has declined to rule on taking claims when it believed the property owner had not received a final and definitive decision from a land use regulatory body on development of the property at issue. In Williamson County, the taking claim was unripe because there remained the "potential for . . . administrative solutions." 473 U.S. at 187 (landowner failed to seek variances that could have allowed development).

In applying the final decision requirement, we have emphasized that local decision-makers must be given the opportunity to review at least one reasonable development proposal before we will consider ripe an as-applied challenge to a land use regulation. See, e.g., Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1991); Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir.), modified, 830 F.2d 968 (1987), cert. denied, 484 U.S. 1043 (1988). Finality also requires the local government to determine the type and intensity of development that land use regulations will allow on the subject property; this determination helps the court evaluate whether regulation of the subject property is excessive by identifying the extent of the regulation. See Herrington v. County of Sonoma, 857 F.2d at 570; Lai v. City and County of Honolulu, 841 F.2d 301, 303 (9th Cir.), cert. denied, 488 U.S. 994 (1988). Thus, a landowner may need to submit modified development proposals that satisfy the local government's objections to the development as initially proposed. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1501 (9th Cir. 1990); MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351-53 (1986).

Once the appropriate state agency reaches a final decision, the second ripeness requirement of Williamson County, the compensation element, is triggered. A federal court lacks jurisdiction to consider an as-applied regulatory taking claim until a determination is reached that "just compensation" has been denied by the state: [B]ecause the Fifth Amendment proscribes taking without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a Section 1983 action. 473 U.S. at 194 n. 13 (emphasis added).

In Williamson County, the Court concluded that Hamilton Bank's taking claim was not ripe because the Bank failed to utilize available state procedures: Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances . . . [U]ntil it has utilized that procedure, its taking claim is premature. Id. at 196-97. See also Jama Const. v. City of Los Angeles, 938 F.2d 1045, 1047-48 (9th Cir. 1991) (Dismissed as unripe where plaintiff "did not seek compensation through California procedures before bringing its federal action."), cert. denied, 503 U.S. 919 (1992); Bateson v. Geisse, 857 F.2d 1300, 1306 (9th Cir. 1988) (Because Montana recognizes inverse condemnation under the State Constitution, plaintiff must "pursue [that claim] before he can state a [federal ] taking claim.").

[I]f a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. 473 U.S. at 195.

The central concern of ripeness is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all. 13A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 3532 at 126 (citing Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580 (1985)). If an issue can be illuminated by the development of a better factual record, a challenge may be unripe. See Pacific Legal Found. v. State Energy Resources Conservation and Dev. Comm'n, 659 F.2d 903, 915 (9th Cir. 1981), aff'd on other grounds, 461 U.S. 190 (1983); Hoehne, 870 F.2d at 532. The Fifth Amendment action is not more "developed" or "ripened " through presentation of the ultimate issue -- the failure of a state to provide adequate compensation for a taking -- to the state court. Indeed, such a requirement would not ripen the claim, rather it would extinguish the claim. See Palomar Mobilehome Park v. City of San Marcos, 989 F.2d 362 (9th Cir. 1993). Declining to hear a case on ripeness grounds is appropriate in situations where there is a reasonable prospect that the state courts may adjust state law to avoid or alter the constitutional question. 13A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 3532.5 at 126. But where deference rests instead "on the prospect that the state courts may entertain and decide the constitutional question, the issue of comity should be addressed directly without reliance on ripeness." Id.

The case law is clear that with the exception of federal habeas corpus review of state convictions under 28 U.S.C. S 2254, the determination of federal constitutional questions in state court systems may not be reviewed or repeated in the federal systems. The Court in Allen v. McCurry, 449 U.S. 90, 94, 104 (1980) said that"[t]he federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel," excepting only "a federal writ of habeas corpus, the purpose of which is not to redress civil injury but to release the applicant from unlawful physical confinement."

[I]t has been established at least since Jacobs v. United States, 290 U.S. 13 (1933), that claims for just compensation are grounded in the Constitution itself. [The claim] rested upon the Fifth Amendment. Statutory recognition [by the state] was not necessary. [I]n the event of a taking, the compensation remedy is required by the Constitution. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315-16 (1987) (citations omitted).

Courts routinely have held that state procedures are considered inadequate only when state law provides no postdeprivation remedy for a taking. See Austin, 840 F.2d at 681 (Hawaiian courts and legislature had neither accepted nor rejected inverse condemnation action under Article I, Section 20 of the Hawaiian Constitution); Levald Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993) ("the unavailability of state remedies is the functional equivalent of the denial of just compensation"), cert. denied, 114 S. Ct. 924 (1994); see also New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1493-94 (11th Cir.) ("Florida law . . . provided no post-deprivation remedy."), cert. denied, 114 S. Ct. 439 (1993).

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