ELDRIDGE v. CITY OF PALO ALTO (1975)

We are concerned on this appeal with the proper accommodation of the rapidly developing public policy of environmental protection, to the constitutionally guaranteed right (U.S.Const., 5th and 14th Amends.; Cal.Const., art. I, former § 14) that one's ‘private property shall not be taken or damaged for public use without just compensation.’ Respected authority admonishes that: ‘In this conflict between the ecological and the constitutional, it is plain that neither is to be consumed by the other.’ (Supreme Judicial Court of Massachusetts, in Commissioner of Natural Resources v. S. Volpe & Co. (1965), 349 Mass. 104, 206 N.E.2d 666, 671.)

In the action below, the superior court sustained a demurrer without leave to amend, to plaintiff's ‘Complaint In Inverse Condemnation.’ His action was brought following enactment of zoning ordinances of the City of Palo Alto (hereafter sometimes the ‘City’) classifying 750 acres of his ‘foothill’ property as ‘permanent open space and conservation lands.’ The denial of leave to amend was over plaintiff's objection. His appeal is from a judgment of dismissal of the action entered following the superior court's above-mentioned ruling.

Our task, as was that of the superior court, is to determine whether plaintiff's complaint states a cause of action in inverse condemnation.

We summarize the relevant facts as they are stated in the complaint. But since, as indicated, the City's demurrer was sustained without leave to amend we consider also, at plaintiff's request, certain related ‘Regulations and legislative enactments issued by or under the authority of’ the city; these matters could be pleaded in an amended complaint, or the superior court could take judicial notice of them. (See Evid.Code, § 452, subd. (b).)¹

Until 1959 the City lay entirely upon a flat alluvial plain in northern Santa Clara County. It was then almost fully developed, with nearly 14,000 residence units occupying 2,483 acres. During that year about 6,000 acres of virtually undeveloped rolling foothills to the west, all privately owned, were annexed by the City. The foothills, among other permitted uses, were promptly zoned for single-family residential use on minimum 1-acre sites. In 1968 plaintiff purchased a portion of the foothill property; it is the land so purchased which is the subject of the instant action.

During the year 1969 the City commenced land-use studies of its foothills. Two years later it ‘adopted an amendment to its General plan re-classifying over 90% of the undeveloped foothills' (over 5,900 acres, including plaintiff's 750 acres) to ‘Open Space and/or Conservation and Park’ uses. Thereafter by successive ordinances plaintiff's land was rezoned to ‘O-S (Open Space),’ with ‘new land use restrictions and regulations to carry out the following stated purpose:

‘. . . The purpose and intent of this district is (a) to protect the public health, safety and welfare; (b) to protect and preserve open space land as a limited and valuable resource; (c) to permit the reasonable use of open space land, while at the same time preserving and protecting its inherent open space characteristics to assure its continued availability for the following: as agricultural land, scenic land, recreation land, conservation or natural resource land; for the containment of urban sprawl and the structuring of urban development, and for the retention of land in its natural or near natural state to protect life and property in the community from the hazards of fire, flood and seismic activity; and (d) to coordinate with and carry out federal, state, regional, county, and city open space plans.’

‘On or about November 29, 1972, defendant City publicly announced that the open space rezoning . . . ‘signified that one of Palo Alto's greatest assets—its green and golden foothills—would be conserved as backdrop to the city for generations to come.’ At the same time, defendant declared that ‘. . . a public trails and path system, which is being designed for the foothills, will allow Palo Altans to enjoy the open space.”

‘Although said Open Space zoning regulations [were later modified to] purport to permit, in part, construction of one-family dwellings on the property, such construction is expressly limited to 10-acre minimum lots with a maximum of impervious area and building coverage of 3.5 per cent, and with all such lots devoted to an Open Space Use as therein defined as follows: ‘. . . ‘Open Space Use’ means the use of land for (1) Public recreation (2) Enjoyment of scenic beauty (3) Conservation of use of natural resources (4) Protection of man and his artifacts (5) Protection of man and his artifacts (buildings, property, etc.) (6) Containment and structuring of urban development.” (Emphasis added.)

A ‘Staff Report On Regulation To Preserve Foothills Open Space’ was prepared by the City's Director of Planning and Community Development and adopted, at least in substantial effect, by the City. Among other things, it recited:

‘[T]he City Council directed the staff to pursue all available means toward achieving the open space objective in the Foothills including the exploration of methods and resources available for acquisition. This was followed by the amendment to the Palo Alto General Plan designating uses for the Foothills as open space, conservation, and/or parks which formally established the City's policy in this respect. Subsequently, the Planning Commission requested the staff to pursue ways to achieve the open space objective other than by acquisition.

‘. . .

‘There have been various studies and lengthy deliberations by the Planning Commission and City Council focused on the Foothills during the last few years. These studies and deliberations resulted in the amendment to the General Plan to designate the Foothills for Open Space, Conservation and/or Park uses, and in the recent adoption of the Open Space Element. In consideration of the newly recognized crisis of constantly diminishing open space, implementation of the adopted policies is in order. Zoning controls to protect and preserve natural resources (including protecting against hazards), agricultural resources, recreation areas, scenic areas, watershed lands, and wildlife areas, and, particularly when situated close-in or near urbanized concentrations, are not only desirable but also necessary.’

Three alternative methods for achieving the City's ‘open space, conservation and/or parks' goal for the foothills were submitted by the ‘Staff Report.’

Recommended was ‘Alternative 3’ as follows:

‘3. Adopt a new zoning ordinance regulation (and apply it to the Foothills) similar to Alternative 2 above, but recognizing open space as a land use of a stature equal to all other categories. Such an ordinance would be significantly more restrictive in respect to parcel size and the amount of building coverage permitted under Alternative 2 above. An additional regulation would put a limit on the total permitted impervious area. . . .’ [Emphasis in original.]

‘Alternative 3 is innovative in that it goes beyond the traditional large lot zoning concept and recognizes open space as a valuable resource worthy of preservation for not only the present but also future generations. It allows a reasonable use of the land consistent with the open space goal in the Foothills at a 10 acre minimum lot size. Since the development controls and site and design review would prescribe how and where the impervious areas (those areas covered by buildings, terraces, pools, roads, etc., which will not absorb rainwater) shall be placed; how the roads, structures, and other improvements shall harmonize with the existing natural landscape, and to what extent the natural landscape shall be altered by exotic landscape materials as well as the buildings and roads, therefore, the essence of the natural state of the open space will be retained. A paths and trails system will be planned which will allow public access through the Foothills lands.

‘. . .

‘One important consideration that cannot be overlooked in any zoning proposal is the effect on the property owner. It is most important that he be allowed a reasonable use of his land. The long established 1-acre (R–E) and 5-acre (A–C) zones appear to meet this criteria without any question. At 10, 20, or 40 acres the restriction on the property owner increases. In respect to the value of the property, we can reasonably expect that large acreage mountain homes would have a definite market, particularly when located ‘close-in’ to the metropolitan area. In this respect, we have existing examples in the Los Altos Hills, Portola Valley, and Woodside areas.

‘Considering the various environmental, ecological, aesthetic, and legal factors involved, Alternative 3 with a minimum parcel size of 10 acres is recommended as a reasonable balance between achieving the open space objectives on the one hand and allowing a reasonable (although more restricted) use of property on the other hand. It is suggested that the resultant ordinance be designated O-S, Open Space. . . .'²

Reviewing other authority, California's Supreme Court in Holtz v. Superior Court (1970) 3 Cal.3d 296, 303, 90 Cal.Rptr. 345, 349, 475 P.2d 441, 445, referred to the underlying rationale of the constitutional principle here at issue, as follows:

‘The relevant ‘policy’ basis of article I, section 14, was succinctly defined in Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 642, 220 P.2d 897, 905: ‘The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.’ In other words, the underlying purpose of our constitutional provision in inverse—as well as ordinary—condemnation is ‘to distribute throughout the community the loss inflicted upon the individual by the making of public improvements' (Bacich v. Board of Control (1943) 23 Cal.2d 343, 350, 144 P.2d 818, 823): . . .’ (Emphasis added.)

We now consider the directly applicable law.

Initially, we observe no statutory authority for the taking of ‘open-space easements' or land for ‘open space, conservation and/or parks' under the police power and without compensation therefor. We do note, however, what appears to be legislative recognition that, at least ordinarily, such public benefit should be obtained by purchase or by eminent domain. Government Code section 51073 states:

‘The Legislature . . . declares that the acquisition of open-space easements is in the public interest and constitutes a public purpose for which public funds may be expended or advanced.’

In the same vein are Government Code sections 6950 and 6953.

Section 6950:

‘It is the intent of the Legislature in enacting this chapter [Tit. 1, div. 7, ch. 12, entitled ‘Purchase of Interests and Rights in Real Property’] to provide a means whereby any county or city may acquire, by purchase, gift, grant, bequest, devise, lease or otherwise, and through the expenditure of public funds, the fee or any lesser interest or right in real property in order to preserve, through limitation of their future use, open spaces and areas for public use and enjoyment.'

Section 6953:

‘The legislature further declares that the acquisition of interests or rights in real property for the preservation of open spaces and areas constitutes a public purpose for which public funds may be expended or advanced, and that any county or city may acquire, by purchase, gift, grant, bequest, devise, lease or otherwise, the fee or any lesser interest, development right, easement, covenant or other contractual right necessary to achieve the purposes of this chapter. . . .’

Considering a problem such as that presently before us the United States Supreme Court in Penna. Coal Co. v. Mahon (1922) 260, U.S. 393, 413, 415, 416, 43 S.Ct. 158, 159, 67 L.Ed. 322, asserted:

‘Government 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. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power. . . .

‘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. . . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said, this is a question of degree—and therefore cannot be disposed of by general propositions.’ (Emphasis added.)

Penna. Coal Co. v. Mahon, supra, has been widely and consistently followed and must be deemed the ruling authority on the subject before us.

The same high court in Block v. Hirsh (1920) 256 U.S. 135, 156, 41 S.Ct. 458, 461, 65 L.Ed. 865, pointed out that ‘there comes a point at which the police power ceases and leaves only that of eminent domain.’ And in Nectow v. Cambridge (1927) 277 U.S. 183, 188, 48 S.Ct. 447, 72 L.Ed. 842, it said: ‘The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, . . .’

Apposite California authority follows.

‘While the police power is very broad in concept, it is not without restriction in relation to the taking or damaging of property. When it passes beyond proper bounds in its invasion of property rights, it in effect comes within the purview of the law of eminent domain and its exercise requires compensation.’ (House v. L. A. County Flood Control Dist. (1944) 25 Cal.2d 384, 388, 153 P.2d 950, 951.)

‘Without question, an undue restriction on the use of private property is as much a taking for constitutional purposes as appropriating or destroying it.’ (Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com. (1970) 11 Cal.App.3d 557, 572, 89 Cal.Rptr. 897, 906; emphasis in original.)

Courts will ‘inquire as to whether an ordinance which rezones property so as to restrict the uses which may be made of the property is unreasonable, oppressive or discriminatory . . .. A zoning ordinance may not be used as a device to take property for public use without the payment of compensation.’ (Kissinger v. City of Los Angeles (1958) 161 Cal.App.2d 454, 460, 462, 327 P.2d 10, 15.)

Sister states have spoken similarly.

‘[T]he plaintiff's land cannot at present or in the immediate future be profitably or reasonably used without violation of the restriction. An ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose goes, it is plain, beyond regulation, and must be recognized as a taking of the property. The only substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner subject to the burden of payment of taxation, while outright confiscation would relieve him of that burden.’ (Arverne Bay Const. Co. v. Thatcher (1938) 278 N.Y. 222, 15 N.E.2d 587, 592; emphasis in original.)

Where ‘plaintiffs have been deprived by the change of zone of any worthwhile rights or benefits in their land . . . the occasion is appropriate for the exercise of eminent domain.’ (Dooley v. Town Plan & Zon. Com'n of Town of Fairfield (1964) 151 Conn. 304, 197 A.2d 770, 774.)

‘Conditions so burdensome may be imposed that they are equivalent to an outright taking, although the title to the property and some vestiges of its uses remain in the owner. . . . [¶] Confrontation between public interests and private interests is common in the application of zoning laws, with which the Wetlands Act may be analogized, and the great majority of which, upon their facts, are hold to be reasonable exercise of the police power. There are, however, zoning restrictions which have been recognized as equivalent to a taking of the property restricted.’ (State v. Johnson (1970) Me., 265 A.2d 711, 715.)

“That a restraint against all use [for the benefit of another private land owner] is confiscatory and beyond the police power and statutory authorization is too apparent to require discussion.' (insertion ours). The same result ordinarily follows where the ordinance so restricts the use that the land cannot practically be utilized for any reasonable purpose or when the only permitted uses are those to which the property is not adapted or which are economically infeasible.' (Morris County Land I. Co. v. Parsippany-Troy Hills Tp. (1963) 40 N.J. 539, 193 A.2d 232, 242.)

‘An unrecognized taking in the guise of regulation is worse than confiscation. . . . ‘An ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose goes, it is plain, beyond regulation, and must be recognized as a taking of the property. The only substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner subject to the burden of payment of taxation, while outright confiscation would relieve him of that burden.’' (Commissioner of Natural Resources v. S. Volpe & Co. supra, 206 N.E.2d 666, 671; emphasis in original.)

In Aronson v. Town of Sharon (1964) 346 Mass. 598, 195 N.E.2d 341, 344—345, a ‘rural’ section of the town had been zoned for building lots of not less than 100,000 square feet (approximately 2 1/2 acres). The town justified its ‘by-law’ by this argument: “The physical characteristics of the district, considered in conjunction with those of the town, a town of residences, large camps, a retreat house, fish and game clubs, a wildlife sanctuary, and large recreation and conservation areas, indicate that all that has made Sharon beautiful * * * will best be maintained by the lot size requirements of its zoning by-law. The zoning here in question will encourage leaving land in the natural state, which will provide the inhabitants, and those who come to Sharon, with a community which has the living and recreational amenities that are fundamental to mental and physical health.” The reviewing court, concluding that the zoning project was a compensable ‘taking,’ reasoned: ‘Whether a by-law is, on the one hand, a reasonable interference with a landowner's rights undertaken in the exercise of the police power for the public benefit or is, on the other hand, a deprivation of private property without compensation often depends upon the facts of the particular case. . . . We cannot resist the conclusion that, however worthy the objectives, the by-law attempts to achieve a result which properly should be the subject of eminent domain.’

In Town of Hempstead v. Lynne (1961) 32 Misc.2d 312, 222 N.Y.S.2d 526, 532, 534, in an ‘unincorporated’ area of the town, building lots had been zoned at not less than 6,000 square feet (about 1/7 of an acre). The court said: ‘In determining the reasonableness of such residential development, then, economic feasibility would appear to be one of the vital elements to be considered. It is, of course, true that a property owner is not entitled to the most profitable use of his land, . . . It is also true that mere lessening of profits does not render a zoning ordinance confiscatory, . . . Where, however, in addition to loss of most profitable use, and in addition to actual loss of profits under a contract, an owner of property is compelled by an ordinance either to leave the land vacant for the indefinite future, or develop it for the more restricted use at a substantial loss of his actual investment, the land can said not to be ‘reasonably’ adapted to the use and the ordinance may be held confiscatory.' Its holding follows: ‘[T]he amendment of the ordinance has not only resulted in such loss of profit, but has also left the defendant with a parcel of property which, if developed for the only purpose permitted in the ordinance, will result in a loss of investment of over $90,000. Involved, therefore, is an adjustment between the wants of a community, perfectly or imperfectly expressed through its local legislative body, and the rights of the owner of the property. The owner's right of user here here is so limited by the restrictive ordinance that there is in reality an economic taking of his property, even though he is left with title, possession and a possibility of use for the restricted purpose. The amendment is thus confiscatory in that it precludes the use of the property for any purpose to which it is reasonably or economically adapted.’ (Emphasis in original.)

Summarizing the broad authority on the instant issue, 1 Nichols on Eminent Domain (3d rev. ed. 1975) Nature and Origin of Power, section 1.42[1], pages 116—121, states: ‘Not only is an actual physical appropriation, under an attempted exercise of the police power, in practical effect an exercise of the power of eminent domain, but if regulative legislation is so unreasonable or arbitrary as virtually to deprive a person of the complete use and enjoyment of his property, it comes within the purview of the law of eminent domain. Such legislation is an invalid exercise of the police power since it is clearly unreasonable and arbitrary. It is invalid as an exercise of the power of eminent domain since no provision is made for compensation.’

Whether a zoning restriction is so ‘arbitrary,’ or ‘unreasonable,’ or ‘burdensome,’ or ‘economically unfeasible,’ or ‘beyond proper bounds in its invasion of property rights,’ as to amount to an inverse condemnation taking, is ordinarily a question of fact to be determined by trial of the issue, and not by demurrer. (See Wilkins v, City of San Bernardino (1946) 29 Cal.2d 32, 338–339, 175 P.2d 542; Turner v. County of Del Norte (1972) 24 Cal.App.3d 311, 314, 101 Cal.Rptr. 93; G & D Holland Construction Co. v. City of Marysville (1970) 12 Cal.App.3d 989, 91 Cal.Rptr. 227; Smith v. County of Santa Barbara (1966) 243 Cal.App.2d 126, 130, 52 Cal.Rptr. 292; Bernstein v, Smutz (1947) 83 Cal.App.2d 108, 124, 188 P.2d 48; Dahl v. City of Palo Alto (D.C., 1974) 372 F.Supp. 647, 649; Aronson v. Town of Sharon, supra, 195 N.E.2d 341, 345.) As said in Penna. Coal Co. v. Mahon, supra, 260 U.S. 393, 416, 43 S.Ct. 158, 67 L.Ed. 322, whether in such situations, compensation is constitutionally required, is ‘a question of degree.’

Among the many factual issues which might be resolved at a trial of the case before us is the ‘economic feasibility’ of the 10-acre homesites, whether such homesites are consistent with the proposed use of the foothills for ‘open space, conservation and/or parks,’ the extent of the intrusion upon plaintiff's property of the ‘paths and trails system’ planned to ‘allow public access through the Foothill lands,’ and generally the impact on plaintiff's property of the zoning ordinance's requirement that the foothills remain ‘open space,’ available for ‘public recreation.’

The need for a resolution by trial, of these and other factual issues, impels us to conclude that the superior court erred in sustaining the City's demurrer without leave to amend, and in dismissing plaintiff's action.

We are aided in this conclusion by Dahl v. City of Palo Alto, supra, 372 F.Supp. 647, which concerned an action of nearly identical issues, arising out of the same subject matter and zoning ordinances as are presently before us. Denying a motion to dismiss (the federal procedural counterpart of our demurrer), the court stated (pp. 648–649): ‘Defendant's principal argument as to the failure to state a claim is that the zoning regulations were enacted pursuant to a comprehensive plan of community development and are therefore a proper exercise of the police power. There is no set formula, however, for determining where regulation ends and taking begins. It is essentially a question of reasonableness. Goldblatt v. Hempstead, 369 U.S. 590, 594–595, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). The determination of reasonableness is a factual one encompassing the interests of the public the appropriateness of the means, and the oppressiveness of the action. Such a determination is inappropriate in a motion to dismiss. Assuming the truth of the allegations stated above, as the Court must in a motion to dismiss, the question is simply whether the plaintiff has stated facts which, if proved, would entitle her to relief. Jenkins v. McKeithen, 395 U.S. 411, 421–422, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Since plaintiff alleges that the regulation is arbitrary and capricious and that it allows no reasonable use of plaintiff's property, her burden has been met.’

We have closely considered each of the many detailed and incidental points and arguments made by the City in its briefs. None of them, in our opinion, tends to impugn the conclusion we have reached.

Much reliance was placed on the year 1970 additions to the Government Code (§§ 65560—65570, 65910—65912), which may be described as encouraging the ‘preservation of open-space lands' by the counties and municipalities of the state. Emphasized was section 65910 calling upon every ‘city and county . . . [to] prepare and adopt an open-space zoning ordinance . . ..’ But we note that section 65912 expressly states: ‘The Legislature hereby finds and declares that this article is not intended, and shall not be construed, as authorizing the city or the county to exercise its power to adopt, amend or repeal an open-space zoning ordinance in a manner which will take or damage private property for public use without the payment of just compensation therefor. This section is not intended to increase or decrease the rights of any owner of property under the Constitution of the State of California or of the United States.’ (Emphasis added.)

Plaintiff has not denied the validity of the zoning ordinance at issue; he has simply insisted that the City has taken or damaged his property and that he is entitled to compensation therefor. The City has contended that, thus assuming the zoning ordinance's validity, there can be no inverse condemnation award. The contention is without merit. It was said in Turner v. County of Del Norte, supra, 24 Cal.App.3d 311, 315, 101 Cal.Rptr. 93, 96, ‘Despite the conclusion that the zoning ordinance is valid as a reasonable exercise of the police power, the appellants would still be entitled to compensation if there was a taking of their property.’ Sneed v. County of Riverside (1963) 218 Cal.App.2d 205, 212, 32 Cal.Rptr. 318, 322, found no fault in an inverse condemnation action where it was the ‘county which has invaded the alleged property rights of plaintiff, and in response thereto plaintiff does not challenge the constitutionality of the ordinance but merely seeks damages in inverse condemnation . . ..’ Brown v. Tahoe Regional Planning Agency (D.C., 1973) 385 F.Supp. 1128, 1132, held that ‘public welfare and necessity may reasonably require exceptionally restrictive land use classification . . . but . . . such valid regulations may nevertheless constitute a taking of private property for public use entitling the owner to just compensation.’ In House v. L. A. County Flood Control Dist., supro, 25 Cal.2d 384, 153 P.2d 950, and Peacock v. County of Sacramento (1969) 271 Cal.App.2d 845, 97 Cal.Rptr. 391, it was held that unreasonable restrictions imposed on the use of land, respectively, under a valid police power regulation and a valid zoning ordinance, entitled the owners to damages in inverse condemnation.

We see no merit in the contention that a ‘comprehensive [land use] zoning ordinance’ or regulation (see Consolidated Rock Products Co. v. City of Los Angeles (1962) 57 Cal.2d 515, 520–521, 20 Cal.Rptr. 638, 370 P.2d 342) is in some way immune from the application of the rule of Penna. Coal Co. v. Mahon, supra, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322, and its kindred cases, that where the ‘regulation goes too far it will be recognized as a taking.’ No authority was offered or found so holding. The same argument was made in Dahl v. City of Palo Alto, supra, 372 F.Supp. 647, 648, where the court responded: ‘Defendant's principal argument as to the failure to state a claim is that the zoning regulations were enacted pursuant to a comprehensive plan of community development and are therefore a proper exercise of the police power. There is no set formula, however, for determining where regulation ends and taking begins. It is essentially a question of reasonableness.’

In Vernon Park Realty v. City of Mount Vernon (1954) 307 N.Y. 493, 121 N.E.2d 517, 519, the court answered such a contention in this manner: ‘While the common counsel [sic] has the unquestioned right to enact zoning laws respecting the use of property in accordance with a well-considered and comprehensive plan designed to promote public health, safety and general welfare, . . . such power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably, . . . and this is so whenever the zoning ordinance precludes the use of the property for any purpose for which it is reasonably adapted.’

And Morris County Land I. Co. v. Parsippany-Troy Hills Tp., supra, 193 A.2d 232, 242, states: ‘Of course, property need not be zoned to permit every use to which it is adapted nor must all property similarly situated be accorded identical treatment. To so require would frustrate the zoning objective of a well-balanced community according to a comprehensive plan. It is sufficient if the regulations permit some reasonable use of the property in the light of the statutory purposes.’

An expressed reason of the superior court, in sustaining the City's demurrer without leave to amend, was that ‘there cannot be stated a cause of action where there is not a physical taking.’ The City has made the same contention here. It also is invalid. Klopping v. City of Whittier (1972) 8 Cal.3d 39, 46, 104 Cal.Rptr. 1, 7, 500 P.2d 1345, 1351, tells us that ‘before a de facto taking results there must be a ‘physical invasion or direct legal restraint . . ..’ One example of a ‘legal restraint’ discussed in several California cases has been a particularly harsh zoning regulation, . . .' (Emphasis added.) Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com., supra, 11 Cal.App.3d 557, 572, 89 Cal.Rptr. 897, 906, states: ‘Without question, an undue restriction . . . is as much a taking for constitutional purposes as appropriating or destroying it.’ (Emphasis in original.) Bydlon v. United States (1959) 175 F.Supp. 891, 899, 146 Ct.Cl. 764, holds: ‘It is no longer the rule that there must be a physical invasion of property to constitute a taking.’ (And see authority there cited.) ‘The modern, prevailing view is that any substantial interference with private property which destroys or lessens its value (or by which the owner's right to its use or enjoyment is in any substantial degree abridged or destroyed) is, in fact and in law, a ‘taking’ in the constitutional sense, to the extent of the damages suffered, even though the title and possession of the owner remains undisturbed.' (2 Nichols on Eminent Domain (3d rev. ed. 1975) Taking and Damage, § 6.3, p. 65.)

Another reason stated by the superior court for its ruling, and relied upon by the City, was that plaintiff's ‘administrative remedies have not been exhausted.’ The same argument was made, and found invalid, in Dahl v. City of Palo Alto, supra, 372 F.Supp. 647, 649, which it will be recalled dealt with the same foothills and ordinances and regulations here confronting us. The court said: ‘As to the lack of subject matter jurisdiction in this Court, defendant makes two arguments. First, it urges the Court to refuse to exercise jurisdiction because of plaintiff's failure to exhaust available administrative remedies. Plaintiff has, however, made a claim for inverse condemnation in accordance with California Government Code § 905. The only other remedy referred to by defendant is plaintiff's failure to apply for a variance. It is highly improbable that a variance would, or legally could, be granted where as much land as here is involved (291 acres) and where development would be completely contrary to the goal of preserving the land in its natural or near natural state. The Court will not require such a useless course.’ The court in Sneed v. County of Riverside, supra, 218 Cal.App.2d 205, 212, 32 Cal.Rptr. 318, 322, made a similar determination, stating: ‘Defendants contend plaintiff failed to exhaust his administrative remedies as a prerequisite to judicial relief; that he should have sought a permit from the Planning Commission with respect to nonconforming uses or variances . . .. In the instant case . . . it is not the plaintiff who has sought or obtained a change from what existed before, but the County which has invaded the alleged property rights of plaintiff, and in response thereto plaintiff does not challenge the constitutionality of the Ordinance but merely seeks damages in inverse condemnation . . ..’ Dooley v. Town Plan & Zon. Com'n of Town of Fairfield, supra, 197 A.2d 770, 774, passed upon a like contention, saying: ‘Under the circumstances in the present case, it is not only unlikely but highly improbable that the zoning board of appeals would or legally could, by acting on an application for a variance, grant to the plaintiffs the relief which they seek. [Citations.] To grant a variance which would afford the plaintiffs any appreciable relief would seriously undermine appreciable relief would seriously undermine the legislative purpose of the defendant in creating a flood plain district. An application for a variance would be doomed to almost certain failure. Such a useless course is unnecessary.’ We have reached the same conclusion here.

We do not in any way pass upon the weight or admissibility of evidence which may upon a trial be offered by either of the parties; we simply hold that plaintiff's complaint, with relevant matters judicially cognizable, stated facts sufficient to successfully resist a general demurrer.

The judgment of dismissal is reversed. The superior court will set aside its order sustaining the City of Palo Alto's demurrer without leave to amend. It will grant plaintiff leave to amend his complaint if he shall be so advised, and will otherwise take further proceedings not inconsistent with the views we have expressed.

A review of the record reflects that the plaintiff-landowner has stipulated himself out of court.¹ He contends that a valid exercise of the police power may give rise to an action for damages and that the plans, ordinances and actions of the city as alleged fall within that category. Nevertheless, with exceptions noted below, he relies upon authorities which, in reference to governmental action in the fields of planning and rezoning, hold that regulations which are confiscatory are invalid and not a proper exercise of the police power. By his refusal to seek declaratory relief,² mandate³ or other recognized remedies for relief against governmental restrictions on the use of his property,⁴ he has left himself without a remedy. He seeks to retain his property, which has not been subjected to any physical appropriation, or invasion, and to be compensated for it too.

I

The keystone of plaintiff's attack is found in Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, where Justice Holmes in ringing words pronounced, ‘We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. . . . [¶] We assume, of course, that the statute was passed upon the conviction that an exigency existed that would warrant it, and we assume that an exigency exists that would warrant the exercise of eminent domain. But the question at bottom is upon whom the loss of the changes desired should fall. So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.’ (260 U.S. at p. 416, 43 S.Ct. at p. 160.) The court, however, did not award the coal company compensation for the inroads which the state had made into the company's mining rights by legislation which purported to require that the company support the surface of land which it had granted subject to mineral rights, including the right to mine without liability for subsidence.⁵ It merely declared the legislation unconstitutional and reversed a decision of the Supreme Court of Pennsylvania which had directed that an injunction be issued against the coal company's violation of the regulation. It is clear from the decision that the confiscatory nature of the regulation is not grounds for a cause of action for damages, but the measure of the constitutional power to regulate.⁶

In Beverly Oil Co. v. City of Los Angeles (1953) 40 Cal.2d 552, 254 P.2d 865, the court recognized the essential distinction as follows: ‘. . . the very essence of the police power as differentiated from the power of eminent domain is that the deprivation of individual rights and property cannot prevent its operation, once it is shown that its exercise is proper and that the method of its exercise is reasonably within the meaning of due process of law.’ (40 Cal.2d at p. 557, 254 P.2d at p. 867. See also Consolidated Rock Products Co. v. City of Los Angeles (1962) 57 Cal.2d 515, 530, 20 Cal.Rptr. 638, 370 P.2d 342.) In the case last cited the court referred with approval to decisions which indicated that the Pennsylvania Coal Co. case was inapplicable to comprehensive zoning (57 Cal.2d at p. 529, 20 Cal.Rptr. 638, 370 P.2d 342).

II

Plaintiff alleges that he has not been able to find a single decided case passing on the compensability of a claimed taking by a particular local government application of a state mandated open-space conservation planning and zoning project. By stating the problem in such limited form he seeks to escape the general rules, reviewed below, that planning itself can give rise to no right of action, and that zoning, if not confiscatory, is not actionable merely because it precludes the most profitable use of property. He also disavows finding a case passing on the compensability of government compelled contribution of all development rights as a condition of owning undeveloped but developable land in the compelling jurisdiction. The absence of such authority is indicative that such action, if arbitrary and confiscatory, is to be attacked directly as unconstitutional, and, since it cannot bind the property, no compensation is in order unless the public body elects to proceed to condemn the interests which are so protected.

The problems posed by this case are not as ephemeral as plaintiff would have us believe. They may be resolved by examination of his contention that a continued series of cumulative regulatory activities prohibiting or ‘freezing’ all private and beneficial use of private property, in the implementation of a local public project, gives rise to a right of action in inverse condemnation. Plaintiff seeks support for this position in a series of cases beginning with Kissinger v. City of Los Angeles (1958) 161 Cal.App.2d 454, 327 P.2d 10.

Kissinger was not a claim for damages, but an action for declaratory relief. The court recognized, ‘. . . it is the duty of the courts to set aside an ordinance which under the facts is clearly unreasonable and oppressive or discriminatory. [Citations.]’ (161 Cal.App.2d at p. 460, 327 P.2d at p. 15.) The court found that the ordinance in question restricted plaintiff's property alone, while it left all similarly situated property subject to the provisions of the comprehensive zoning ordinance which formerly controlled plaintiff's property (id., at p. 460, 327 P.2d 10); that there had been no change in the character of the subject property or the surrounding area since the original zoning (id., pp. 460–461, 327 P.2d 10); that the sole reason assigned for the exercise of the police power in rezoning the property was to prevent an undue congestion of population in the area and thus expose fewer people to the hazards arising from the operation of a nearby airfield, which hazards had existed at the time the property was originally zoned, and remained common hazards to other property within the flight pattern which was not rezoned; and that the city intended to condemn the property it had rezoned (id., p. 461, 327 P.2d 10). The court concluded: ‘The inference is clear that the true purpose of the ordinance was to prevent the improvement of the subject property in order that it might be acquired at a lesser price for airport purposes' (id., pp. 461–462, 327 P.2d p. 16); and ‘In short the ordinance arbitrarily rezoned the plaintiff's property to a use to which it could not economically be put, lying as it does between multiple-dwelling development and commercial development and discriminates against the plaintiffs by preventing the use of their property for the use for which it is best fitted, while permitting all other property similarly situated and zoned to be used as R–3 property.’ (Id., pp. 462–463, 327 P.2d p. 16.) Insofar as this case is concerned, the court, in declaring the ordinance invalid, observed, ‘A zoning ordinance may not be used as a device to take property for public use without the payment of compensation. [Citations.]’ (Id., p. 462, 327 P.2d p. 16.) This would assist plaintiff if he was seeking a similar declaration and could show that the city was discriminating against his property to lower its value with the intent to condemn it for a park or other uses.⁷ It is no way creates an election to sue the offending public body for damages.⁸

Plaintiff's next pillar is Sneed v. County of Riverside (1963) 218 Cal.App.2d 205, 32 Cal.Rptr. 318, in which the court found that the plaintiff had stated a cause of action for inverse condemnation under the following circumstances: ‘. . . the zoning law and the zoning ordinance permit elimination of airport hazards in approaches to airports through the exercise police power ‘to the extent legally possible’ (Gov.Code, § 50485.2); where ‘constitutional limitations' prevent the necessary approach protection under the police power, the necessary property right may be acquired by purchase, grant, or condemnation in the manner provided by law.’ (218 Ca.App.2d at p. 209, 32 Cal.Rptr. at p. 320.) The court observed, ‘The basic controversy is whether the Riverside County Ordinance is in reality a height limit ordinance authorized under the police power or whether it takes an air easement over plaintiff's property without payment of compensation therefor.’ (Id., p. 208, 32 Cal.Rptr. p. 319.) It stated, ‘We believe there is a distinction between the commonly accepted and traditional height restriction zoning regulations of buildings and zoning of airport approaches in that the latter contemplates actual use of the airspace zoned, by aircraft, whereas in the building cases there is no invasion or trespass to the area above the restricted zone.’ (Id., at p. 209, 32 Cal.Rptr. at p. 320, emphasis added.) It concluded: ‘In his complaint plaintiff seeks to set forth two bases upon which he is entitled to compensation, (1) upon an easement obtained through the Ordinance, and (2) on the ground that large numbers of aircraft take off and land, fly at low altitudes over plaintiff's property pursuant to instructions from the employees of defendant County. We believe that a cause of action has been stated on each ground.’ (Id.) This is a far step from saying that a plan or rezoning which affects the value of a landowner's property is a taking when it is not accompanied by an invasion of his property. Sneed is generally limited to its factual situation.⁹

We approach a step closer to plaintiff's claim with Peacock v. County of Sacramento (1969) 271 Cal.App.2d 845, 77 Cal.Rptr. 391. Here a judgment for the landowner in inverse condemnation was sustained. The opinion states, ‘The controversy centers upon the impact on plaintiffs' property rights of a series of actions taken by the Sacramento County Board of Supervisors, which actions were based upon what was initially an assumption and subsequently became a publicly stated intention that the county would eventually purchase Phoenix Field for use as a public aviation facility. The ‘take’ area with which we are concerned was included in that additional property which the county would have had to purchase in order to operate the facility in accordance with their expressed plans. The activities of the board, involved in this case, commenced in 1958 and had not been concluded at the time the subject proceeding was initiated.' (271 Cal.App.2d at p. 847, 77 Cal.Rptr. at p. 393.) Neither the trial court nor the reviewing court found all of these activities actionable. The opinion points out, ‘Significantly, the trial court did not find that any of the county's enactments or actions, standing alone, constituted inverse condemnation. Rather, the court agreed with the position of county at trial that Ordinance 697 was enacted as and was an interim study ordinance, and that the period between its enactment and the adoption of the general plan for Phoenix Field was a reasonable time for completion of such study. Nor did the court hold that the rezoning of the property in June of 1963 furnished a basis for relief, although of the five private airports referred to in the Leigh-Fisher reports only property adjacent to Phoenix Field was so reclassified. [Citation.] Further, the court did not consider the enactment and adoption of the general plan, per se, as constituting inverse condemnation, but reached its conclusion partly on the basis of the continuation of the restrictive measures beyond what was found to be a reasonable time for their existence.’ (271 Cal.App.2d at p. 856, 77 Cal.Rptr. at p. 399.) In distinguishing Metro Realty v. County of El Dorado (1963) 222 Cal.App.2d 508, and Morse v. County of San Luis Obispo (1967) 247 Cal.App.2d 600, the court highlighted the significant factors which led it to affirm that there was a taking on November 13, 1963, when the county adopted a general plan continuing the restrictions it had adopted before, and thereafter authorized the prosecution of the plan including negotiations for the purchase of the property involved. (See 271 Cal.App.2d at pp. 849–850 and 855, 77 Cal.Rptr. 391.) In Peacock, as in Sneed, the plaintiff was singled out as a lonely object of regulation, the ordinance was not of general application as in Metro. Peacock's lands were usable and subdividable, and attempts to secure approval of a subdivision map had been thwarted by the county, whereas in Metro the lands were unused and unusable, and no subdivisions were located in the vicinity. In the latter case the restrictions were temporarily and had not jelled into permanency. In Peacock there was, as in Sneed, an attempt to take the airspace without compensation. Moreover, there was an express purpose (later revoked) to take the particular property involved and to affect the value of that property by the restrictions. (See 271 Cal.App.2d at pp. 859–863, 77 Cal.Rptr. 391.)

As a result, Peacock has been referred to by the Supreme Court as a case which ‘upheld a claim of inverse condemnation because the county had announced its intention to condemn plaintiff's land for an airport, rezoned and restricted the use of that property so that its value would be depressed in the event of future public acquisition, refused permission to subdivide, and finally abandoned the airport project altogether.’ (Selby Realty Co. v. City of Buenaventura (1973) 10 Cal.3d 110, 120, 109 Cal.Rptr. 799, 805, 514 P.2d 111, 117. See also Klopping v. City of Whittier (1972) 8 Cal.3d 39, 44 and 46, 104 Cal.Rptr. 1, 500 P.2d 1345; Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471, 481, 115 Cal.Rptr. 162; Turner v. County of Del Norte (1972) 24 Cal.App.3d 311, 315, 101 Cal.Rptr. 93; and Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com. (1970) 11 Cal.App.3d 557, 572, 89 Cal.Rptr. 897. Cf. Gisler v. County of Madera (1974) 38 Cal.App.3d 303, 306, 112 Cal.Rptr. 919; and People ex rel. Dept. Pub. Wks. v. Southern Pac. Trans. Co. (1973) 33 Cal.App.3d 960, 965—966, 109 Cal.Rptr. 525.)

Klopping v. City of Whittier, supra, 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345, is a case of similar tenor. There the court ruled, ‘Accordingly we hold that a condemnee must be provided with an opportunity to demonstrate that (1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value.’ (8 Cal.3d at p. 52, 104 P.2d at p. 11, 500 P.2d at p. 1355.) In Selby Realty Co. v. City of San Buenaventura, supra, the court observed, ‘Neither Klopping nor any other decision of which we are aware holds that the enactment of a general plan for the future development of an area, indicating potential public uses of privately owned land, amounts to inverse condemnation of that land.’ (10 Cal.3d at p. 119, 109 Cal.Rptr. at p. 804, 514 P.2d at p. 116. See also Navajo Terminals, Inc. v. San Francisco Bay Conservation & Development Com. (1975) 46 Cal.App.3d 1, 4, 120 Cal.Rptr. 108; Redevelopment Agency v. Del-Camp Investments, Inc. (1974) 38 Cal.App.3d 836, 842, 113 Cal.Rptr. 762; and People ex rel. Dept. Pub. Wks. v. Southern Pac. Trans. Co., supra, 33 Cal.App.3d 960, 965, 109 Cal.Rptr. 525.)

People ex rel. Dept. Pub. Wks. v. Southern Pac. Trans. Co., supra, 33 Cal.App.3d 960, 109 Cal.Rptr. 525, states, ‘Since the condemnee has its rights of recovery against the city, there is no compelling need that the same damage be compensated in the eminent domain proceeding brought by the state.’ (33 Cal.App.3d at p. 966, 109 Cal.Rptr. at p. 529.) That statement is predicated on the premise, ‘A zoning restriction imposed to depress value with a view to future eminent domain proceedings itself creates a cause of action in inverse condemnation against the governmental unit enacting the zoning ordinance. [Citations.] The zoning restriction may be invalidated by a direct attack. [Citation.]’ (33 Cal.App.3d at p. 966, 109 Cal.Rptr. at p. 528.) In my opinion the Court of Appeal erred in not permitting the trial court to determine the validity of the city zoning in the action by the state, just as a party may introduce evidence tending to show the possibility of a higher zoning permitting greater value. The court has attempted to shift the cost of the state improvement to the city taxpayers, when in fact the state, and not the city, acquired the property. If the zoning had been contested before the action and declared invalid, the state would have been forced to pay the full price.

In Dahl v. City of Palo Alto (N.D.Cal. 1974) 372 F.Supp. 647, the plaintiff sought damages by reason of same actions of the city as are the subject of the complaint in this case. The court held that allegations that the regulation imposed by the city ‘is arbitrary and capricious and that it allows no reasonable use of plaintiff's property’ were sufficient to raise a factual issue as to whether the zoning regulations were a proper exercise of the police power. (372 F.Supp. at pp. 648–649.) With this I can agree, and it would be applicable here if the plaintiff had not stipulated to the contrary.

The District Court also found that there were sufficient allegations to establish that the moratorium on the use of her land constituted a taking under principles enunciated in Peacock v. City of Sacramento, supra. For reasons set forth herein, I cannot reach a similar conclusion in this case. That court also found that there were facts alleged with created an equitable estoppel against the city sustaining the plaintiff's claim of breach of contract and misrepresentation (id., p. 649). With respect to the claim that the plaintiff had not exhausted her administrative remedies the court observed that a claim had allegedly been filed, and that the allegations reflected that it would be a useless course to require the landowner to seek a variance. (Id.)

The opinion fails to confront the issue of whether the plaintiff's recourse is limited to having the regulation invalidated and her property restored to its former status. It assumes that there was a taking despite the alleged improper exercise of the regulatory power. I, therefore, find the opinion unpersuasive and inconsistent with the opinions of the Supreme Court of this state which have denied a right to inverse condemnation under similar circumstances.^9A

Other cases which recognize an action for inverse condemnation where the plaintiff's property had been physically invaded, or has been diminished in value because of actual use of the airspace,¹⁰ are not controlling or persuasive on the issues raised by the plaintiff's complaint.

III

According to the complaint, plaintiff's property consists of an undeveloped parcel of approximately 750 contiguous acres on Skyline Boulevard and Page Mill Road in the San Francisco peninsula foothills overlooking San Francisco Bay. He acquired the property March 15, 1968, for the sum of $2,050,000 plus assumption of an assessment balance of $406,662.38 for municipal sewer and water utilities which had been financed by an assessment district in 1963¹¹ , four years after the city in 1959 had annexed an area of approximately 6,000 acres of which the property subsequently purchased by plaintiff was a part. At the time of the annexation of the property, the improvements on the property were limited to some old ranch buildings, electric and telephone utility service and public roan on two sides. There is no mention that any improvements other than those mentioned above were constructed before or after the acquisition by plaintiff, at the time of acquisition the property was zoned R-E:A (Residential Estate-Agricultural) for low density single-family residential development on minimum one-acre lots with one primary dwelling unit per lot. The plaintiff purchased the property for the purposes of long term investment and planned development, intending to make use of its many rolling hills, wooded glens and spectacular panoramic views of the entire San Francisco Bay area.

The gravamen of plaintiff's complaint is found in allegations that a series of public acts and transactions commencing in 1969, and ‘in particular those of defendant CITY occurring between February 28, 1972, and August 14, 1972, constitute a taking of plaintiff's private property for public use as permanent open space without prior payment of just compensation as required by Article I, section of California.’ A second cause of action seeks recovery under the Fifth and Fourteenth Amendments to the Constitution of the United States, and alleges, ‘Said series of acts and transactions of defendant CITY have devalued plaintiff's land by more than three-fourths of its fair market value and to substantially below its actual cost, which is a wholly unreasonable degree in that it is thus impossible to reasonably develop the said property with a fair return or otherwise.’ A third cause of action alleges, ‘Said series of acts and transactions of the defendant CITY amount to a damaging according to proof of plaintiff's private property for public use without just compensation having first been paid, in violation of Article I, Section 14, of the Constitution of the State of California.’ Plaintiff seeks $4,000,000 which he alleges was the fair market value of his property prior to the alleged taking. Claim for damages was made to the city as required by law on September 14, 1972, and the action was filed December 18, 1972, after the city failed to act on the claim.

The acts complained of fall into three categories—planning, moratorium on development, and rezoning. The complaint alleges that in 1969 the city commenced a series of environmental and land use studies; that in 1970 the city began to publicly discuss the purchase of foothill properties for the preservation of open space; that on June 7, 1971, the city adopted an amendment to its general plan reclassifying over 90 percent of the undeveloped foothills (over 5,900 acres, including plaintiff's property) to ‘Open Space and/or Conservation and Park’ uses; that on April 17, 1972, the general plan was amended by the addition of an open space element.¹² Plaintiffs also recognize that in 1970 the state Legislature mandated the preparation of such plans. (See Gov.Code, §§ 65560—65570, particularly § 65563, as adopted Stats.1970, ch. 1590, § 15, p. 3316.)¹³

Selby Realty Co. v. City of San Buenaventura, supra, makes it clear that the adoption of a plan itself, even though it may designate areas to be appropriated for public use in the future, gives no right of action for inverse condemnation. The court rejected such a contention as follows: ‘The deleterious consequences of haphazard community growth in this state and the need to prevent further random development are evident to even the most casual observer. The Legislature has attempted to alleviate the problem by authorizing the adoption of long-range plans for orderly progress. Thus, it has provided not only for the adoption of general plans but also regional plans (§ 65060 et seq.), specific plans (§ 65540 et seq.), district plans (§ 66105 et seq.), and a comprehensive plan for the conservation of San Francisco Bay (§ 66650 et seq.). In addition, the voters recently passed an initiative measure providing the mechanism for adoption of plans to preserve and protect the state's coastline. (Pub.Resources Code, § 27000 et seq.)

‘If a governmental entity and its responsible officials were held subject to a claim for inverse condemnation merely because a parcel of land was designated for potential public use on one of these several authorized plans, the process of community planning would either grind to a halt, or deteriorate to publication of vacuous generalizations regarding the future use of land. We indulge in no hyperbole to suggest might if every landowner whose property might be affected at some vague and distant future time by any of these legislatively permissible plans was entitled to bring an action in declaratory relief to obtain a judicial declaration as to the validity and potential effect of the plan upon his land, the courts of this state would be inundated with futile litigation. It is clear, under all the circumstances, that plaintiff has not stated a cause of action against the county defendants for either declaratory relief or inverse condemnation.’ (10 Cal.3d at pp. 120–121, 109 Cal.Rptr. at p. 805, 514 P.2d at p. 116, see also pp. 127—128, 109 Cal.Rptr. 799, 514 P.2d 111; and Navajo Terminals, Inc. v. San Francisco Bay Conservation & Development Com., supra, 46 Cal.App.3d 1, 3—5, 120 Cal.Rptr. 108; and Hilltop Properties v. State of California (1965) 233 Cal.App.2d 349, 354—361, 43 Cal.Rptr. 605.)

Nor did the delays attendant to the adoption of the plan and the ensuing zoning ordinance give rise to a cause of action. At any time up to the effective date of the moratorium ordinance adopted July 1971, the plaintiff could have applied for all permits necessary for the absence of any contrary legislation had a right to secure them. The subsequent delays during the planning process give rise to no cause of action. In Miller v. Board of Public Works (1925) 195 Cal. 477, 234 P. 381, the court pointed out, ‘It is a matter of common knowledge that a zoning plan of the extent contemplated in the instant case cannot be made in a day; therefore we may take judicial notice of the fact that it will take much time to work out the details of such a plan and that obviously it would be destructive of the plan if, during the period of its incubation, parties seeking to evade the operation thereof should be permitted to enter upon a course of construction which might progress so far as to defeat in whole or in part the ultimate execution of the plan.’ (195 Cal. at p. 496, 234 P. at p. 388.) Recognition of that necessity has often been applied to sustain moratoria on development and construction activity without compensation to the owner. (See Gov.Code, § 65858 [former § 65804]; State of California v. Superior Court (Veta Company), supra, 12 Cal.3d 237, 252—255, 115 Cal.Rptr. 497, 524 P.2d 1281; Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com., supra, 11 Cal.App.3d 557, 570—573, 89 Cal.Rptr. 897; Metro Realty v. County of El Dorado, supra, 222 Cal.App.2d 508, 511—519, 35 Cal.Rptr. 480; and Hunter v. Adams (1960) 180 Cal.App.2d 511, 520—524, 4 Cal.Rptr. 776.)

The fact, as alleged, that on April 17, 1972, the city authorized the purchase of 43 acres of privately owned foothills land for open space at a price of approximately $12,000 an acre is of no significance. According to the complaint 6,000 acres are involved, and no particular 43 acres are designated in the complaint. 5,900 acres were classified as for ‘Open Space and/or Conservation and Park’ uses on June 7, 1971. Such a classification was certainly not directed to the 43 acres, much less directly at plaintiff's 750 acres. Plaintiff allegedly acquired the property at a gross price of about $3,275 per acre on March 15, 1968. He claims damages of approximately $5,333 per acre, whether for the whole of his property, or solely for the alleged restrictions on the use of his property is not clear. In any event, the $12,000 per acre offered by the city in no way shows a studied attempt at planning moratorium and rezoning to drive down the price of property.

The kernel of plaintiff's complaint must be the rezoning which on June 5, 1972, added open space regulations to the zoning code, and on August 14, 1972, classified plaintiff's property in that category. This changed the classification of the property from ‘R-E:A (Residential Estate—Agricultural), for low-density single-family residential development on minimum one-acre lots with one primary dwelling unit per lot’ to ‘O-S (Open Space).’ Under the new zoning ‘construction of one-family dwellings on the property . . . is expressly limited to 10-acre minimum lots with a maximum of impervious area and building coverage of 3.5 per cent. . . .’ Uses are limited to ‘(1) Public recreation (2) Enjoyment of scenic beauty (3) Conservation of use of natural resources (4) Production of food or fiber (5) Protection of man and his artifacts (buildings, property, etc.) (6) Containment and structuring of urban development.’

There may well be a justiciable issue as to whether this zoning merits the test of the regulatory power as limited in Pennsylvania Coal Co. v. Mahon, supra. Plaintiff has alleged, ‘The aforesaid acts and transactions of defendant CITY have deprived plaintiff of all private uses of his said property and appropriated his private property rights therein’ and ‘The aforesaid acts and transactions of defendant CITY have deprived plaintiff of any reasonable or economically feasible use of his said property.’ These statements are legal conclusions and not allegations of ultimate fact. (See Hilltop Properties v. State of California, supra, 233 Cal.App.2d 349, 354, 43 Cal.Rptr. 605.) Nevertheless they contain the germ of facts which might render the new ordinance invalid if it can be shown to be confiscatory. (See G & D Holland Construction Co. v. City of Marysville (1970) 12 Cal.App.3d 989, 994—997, 91 Cal.Rptr. 227; Munns v. Stenman (1957) 152 Cal.App.2d 543, 552—555, 314 P.2d 67; and Bernstein v. Smutz (1947) 83 Cal.App.2d 108, 117—125, 188 P.2d 48. Cf. Consolidated Rock Products Co. v. City of Los Angeles, supra, 57 Cal.2d 515, 530—532, 20 Cal.Rptr. 638, 370 P.2d 342; McCarthy v. City of Manhattan Beach (1953) 41 Cal.2d 879, 890, 264 P.2d 932; Gisler v. County of Madera, supra, 39 Cal.App.3d 303, 307—309, 112 Cal.Rptr. 919; Morse v. County of San Luis Obispo (1967) 247 Cal.App.2d 600, 602—603, 55 Cal.Rptr. 710; Smith v. County of Santa Barbara, supra, 243 Cal.App.2d 126, 132, 52 Cal.Rptr. 292; Anderson v. City Council (1964) 229 Cal.App.2d 79, 88—90, 40 Cal.Rptr. 41; and Mang v. County of Santa Barbara (1960) 182 Cal.App.2d 93, 101—102, 5 Cal.Rptr. 724.)

The combination of the moratorium, plan and rezoning does not establish an illegal whole which entitles the plaintiff to relief despite the legality of its parts. Nor is he aided by the allegation that more than two months after he filed his claim the city publicly announced ‘that the open space rezoning enacted on said August 14, 1972, ‘signified that one of Palo Alto's greatest assets—its green and golden foothills—would be conserved as backdrop to the city for generations to come’', and declared “the 1,400 acres which the City owns in Foothills Park and a public trails and path system, which is being designed for the foothills, will allow Palo Altans to enjoy the open space.” If the plaintiff's property is condemned for parks, trails or paths, or if the city attempts to use it for such purposes without condemnation he has his legal remedies, and in an action for condemnation, direct or indirect, he may assert his contention that the property is illegally zoned and seek compensation on a value free from the zoning. He also had the right to seek a declaration that the actual restrictions placed on his property were illegal, or, in the alternative, a right to seek to force the city to permit him to develop his property in a manner consistent with the prior zoning. He has elected not to pursue those remedies. (See fn. 1 above.) He is not entitled to compensation on the facts alleged in his complaint. (See State of California v. Superior Court (Veta Company), supra, 12 Cal.3d 237, 252—255, 115 Cal.Rptr. 497, 524 P.2d 1281; and Selby v. City of San Buenaventura, supra, 10 Cal.3d 110, 118, 121 and 127—128, 109 Cal.Rptr. 799, 514 P.2d 111.)¹⁴

The trial court properly sustained the demurrer to the complaint on the ground that no cause of action was stated for inverse condemnation. Plaintiff's failure to attack the zoning ordinance directly renders it unnecessary to determine whether he has alleged facts sufficient to show that it was not a valid exercise of the police power, and I express no opinion on that ground, or on the issue of whether plaintiff should have applied for a variance before so attacking the ordinance. Because plaintiff so restricted his prayer and failed to produce, on rehearing, any amended complaint, there was no error in denying his request to amend.

I would affirm the judgment.

FOOTNOTES

1.  Where judicial notice may be taken of matter ‘there is still no error or impropriety in requiring evidence.’ (Varcoe v. Lee (1919) 180 Cal. 338, 347, 181 P. 223, 227.)

2.  We have, of course, excerpted small significant portions of the ‘Staff Report.’ But, in our opinion, we have not substantially interfered with the context.

1.  The complaint alleges that the plaintiff's real property had a fair market value of $4,000,000 prior to the alleged taking. His prayer is for ‘compensation in the sum of $4,000,000.00); his costs, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees actually incurred herein; legal interest thereon from the date of taking or damaging; and for such further relief as the Court deems proper.’In support of the complaint, plaintiff's attorney advised the trial court, ‘The validity and public purpose of defendant's transactions in implementing its Open-Space project is unquestioned.’ In his closing brief he states, ‘. . . appellant believes, as respondent does, that the States 1970–72 open-space legislation and respondents thereby enabled open-space activities pursued during the same period legally constitute a valid exercise of the police power.’At the hearing on the demurrer plaintiff's counsel requested that in the event the demurrer should be sustained he be granted leave to amend to put in ‘a tremendous amount of evidentiary factual material surrounding’ the transactions involved. The order sustaining the demurrer without leave to amend was signed and filed on March 16, 1973, and judgment of dismissal was filed and entered March 26. On the same day plaintiff prepared, and on the following day filed, a notice of motion for reconsideration of ruling on demurrer. No date was noted for hearing but a request was made for setting a time and place convenient for the court. The notice states, ‘Said motion is made in the furtherance of justice and on the grounds that the Court should reconsider its ruling upon consideration of plaintiff's proposed amended complaint.’ It refers to a proposed amended complaint. No such complaint is attached to the notice of motion in the record, nor does plaintiff's request for a clerk's transcript designate any such proposed amended complaint as a part of the record. The city filed a memorandum in opposition, but so far as appeared from the record, no amended complaint was ever prepared, nor was the noticed motion, or any other motion seeking review of the order and/or judgment, ever brought on for hearing. There is no suggestion that plaintiff ever sought relief other than set forth in his original prayer.

2.  See: State of California v. Superior Court [Veta Company] (1974) 12 Cal.3d 237, 250–252 and cf. 248–250, 115 Cal.Rptr. 497, 524 P.2d 1281; Consolidated Rock Products Co. v. City of Los Angeles (1962) 57 Cal.2d 515, 517, 20 Cal.Rptr. 638, 370 P.2d 342; Beverly Oil Co. v. City of Los Angeles (1953) 40 Cal.2d 552, 554, 254 P.2d 865; and Kissinger v. City of Los Angeles (1958) 161 Cal.App.2d 454, 455 and 460, 327 P.2d 10. Cf. Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117–118 and 126–127, 109 Cal.Rptr. 799, 514 P.2d 111.

3.  See: State of California v. Superior Court [Veta Company], supra, 12 Cal.3d 237, 244–248, 115 Cal.Rptr. 497, 524 P.2d 1281; Selby Realty Co. v. City of San Buenaventura, supra, 10 Cal.3d 110, 121–125 and 128, 109 Cal.Rptr. 799, 514 P.2d 111; G & D Holland Construction Co. v. City of Marysville (1970) 12 Cal.App.3d 989, 992, 91 Cal.Rptr. 227; Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com. (1970) 11 Cal.App.3d 557, 562, 89 Cal.Rptr. 897; Munns v. Stenman (1957) 152 Cal.App.2d 543, 556, 314 P.2d 67; and Bernstein v. Smutz (1947) 83 Cal.App.2d 108, 113–114, 188 P.2d 48.

4.  See: State of California v. Superior Court [Veta Company], supra, 12 Cal.3d 237, 252, 115 Cal.Rptr. 497, 524 P.2d 1281 [injunction]; Consolidated Rock Products Co. v. City of Los Angeles, supra, 57 Cal.2d 515, 517, 20 Cal.Rptr. 638, 370 P.2d 342 [injunction]; Beverly Oil Co. v. City of Los Angeles, supra, 40 Cal.2d 552, 554, 254 P.2d 865 [injunction]; and Metro Realty v. County of El Dorado (1963) 222 Cal.App.2d 508, 509, 35 Cal.Rptr. 480 [review Bus. & Prof.Code, former § 11525, see § 11525.1].

5.  The lone voice of Justice Brandeis appears more attuned to modern concepts. He stated in dissent, ‘. . . where the police power is exercised, not to confer benefits upon property owners but to protect the public from detriment and danger, there is in my opinion, no room for considering reciprocity of advantage. There was no reciprocal advantage to the owner prohibited from using his oil tanks [citation]; his brickyard [citation]; his livery stable citation]; his billiard hall [citation]; his oleomargarine factory [citation]; his brewery [citation]; unless it be the advantage of living and doing business in a civilized community. That reciprocal advantage is given by the act to the coal operators.’ (260 U.S. at p. 422, 43 S.Ct. at p. 163.) Concepts of what constitutes a civilized community are ever changing. Justice Lennon over 50 years ago recognized, ‘Thus it is apparent that the police power is not a circumscribed prerogative, but is elastic and, in keeping with the growth of knowledge and the belief in the popular mind of the need for its application, capable of expansion to meet existing conditions of modern life and thereby keep pace with the social, economic, moral, and intellectual evolution of the human race.’ (Miller v. Board of Public Works, 195 Cal. 477, 485, 234 P. 381, 383. See also Consolidated Rock Products Co. v. City of Los Angeles (1962) 57 Cal.2d 515, 522, 20 Cal.Rptr. 638, 370 P.2d 342.)

6.  Holmes stated, ‘Government 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. As long recognized some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power.’ (260 U.S. at p. 413, 43 S.Ct. at p. 159. See also Dobbins v. Los Angeles (1904) 195 U.S. 223, 241, 25 S.Ct. 18, 49 L.Ed. 169.)

7.  Whether distinguished or applied Kissinger is generally limited to that principle. In Selby Realty Co. v. City of San Buenaventura, supra, 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111, the court distinguished Kissinger, referring to it as a case which ‘involved an unconstitutional attempt to rezone the plaintiff's property so that it could be acquired for a public use upon payment of a lower price.’ (10 Cal.3d at p. 120, 109 Cal.Rptr. at p. 805, 514 P.2d at p. 117. See also Morse v. County of San Luis Obispo (1967) 247 Cal.App.2d 600, 604, 55 Cal.Rptr. 710; Smith v. County of Santa Barbara (1966) 243 Cal.App.2d 126, 129–130 and 131, 52 Cal.Rptr. 292; and Metro Realty v. County of El Dorado, supra, 222 Cal.App.2d 508, 516, 35 Cal.Rptr. 480. Cf. Klopping v. City of Whittier (1972) 8 Cal.3d 39, 46, 104 Cal.Rptr. 1, 500 P.2d 1345; Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471, 481, 115 Cal.Rptr. 162; People ex rel. Dept. Pub. Wks. v. Southern Pac. Trans. Co. (1973) 33 Cal.App.3d 960, 965–966, 109 Cal.Rptr. 525; G & D Holland Construction Co. v. City of Marysville, supra, 12 Cal.App.3d 989, 994, 91 Cal.Rptr. 227; and Peacock v. County of Sacramento (1969) 271 Cal.App.2d 845, 856, 777 Cal.Rptr. 391.)

8.  It is established that the provisions of sections 818.4 and 821.2 of the Government Code immunize the public entity and the public employee from liability caused by the erroneous refusal to issue a permit where the issuance of such permit is discretionary. The person injured is limited to his action to require the issuance of the permit if discretion was abused. (State of California v. Superior Court [Veta Company], supra 12 Cal.3d 237, 245–247, 115 Cal.Rptr. 497, 524 P.2d 1281; Selby Realty Co. v. City of San Buenaventura, supra, 10 Cal.3d 110, 127, 109 Cal.Rptr. 799, 514 P.2d 111; and O'Hagan v. Board of Zoning Adjustment (1974) 38 Cal.App.3d 722, 728–732, 113 Cal.Rptr. 501.) Analogous provisions protect the public entity and the public employee from liability for an injury caused by the adoption or failure to adopt an enactment. (Gov.Code, § 818.2 and § 821. See Old Town Dev. Corp. v. Urban Renewal Agency (1967) 249 Cal.App.2d 313, 334–335, 57 Cal.Rptr. 426.) Nor can a public employee be held liable for damages resulting from acts in good faith under an enactment which is unconstitutional, invalid, or inapplicable. (Gov.Code, § 820.6. See Brown v. City of Los Angeles (1968) 267 Cal.App.2d 849, 851, 73 Cal.Rptr. 364.)It is unnecessary to determine the applicability of the foregoing provisions to the facts upon which plaintiff seeks to recover. They have not been referred to by either party, and for reasons set forth below it is otherwise clear that plaintiff has no action for damages.

9.  See: Gisler v. County of Madera (1974) 38 Cal.App.3d 303, 306, 112 Cal.Rptr. 919; Turner v. County of Del Norte (1972) 24 Cal.App.3d 311, 315, 101 Cal.Rptr. 93; and Morse v. County of San Luis Obispo, supra, 247 Cal.App.2d 600, 603–604, 55 Cal.Rptr. 710. Cf. Klopping v. City of Whittier, supra, 8 Cal.3d 39, 46, 104 Cal.Rptr. 1, 500 P.2d 1345; Aaron v. City of Los Angeles, supra, 40 Cal.App.3d 471, 481, 115 Cal.Rptr. 162: People ex rel. Dept, Pub. Wks. v. Southern Pac. Trans. Co., supra, 33 Cal.App.3d 960, 965–966, 109 Cal.Rptr. 525; City of Oakland v. Nutter (1970) 13 Cal.App.3d 752, 763 and 769, fn. 14, 92 Cal.Rptr. 347; and Peacock v. County of Sacramento, supra, 271 Cal.App.2d 845, 858 and 861, 77 Cal.Rptr. 391.

9.  Since the preparation of the foregoing opinion, I have been furnished with and examined a copy of the opinion filed September 15, 1975, in Arastra Limited Partnership v. City Of Palo Alto (D.C.No. Dist. Cal.) 401 F.Supp. 962. In my opinion the complaint in this action fails to fall within the framework of that cast because plaintiff has failed to allege that he ever had initiated or secured approval of any development plan which was foreclosed by the series of actions taken by the city, or that the city ever designated his particular parcel for acquisition to extent shown in the cited case. Moreover, in my opinion the District Court erred in not relegating the landowner to his right to develop the property under the prior zoning if, as it found, the new zoning was confiscatory. I express no opinion as to whether under the circumstances related in the cited case, the landowner would be entitled to some compensation under Klopping for the period commencing with the determination to take its property and terminating with the abandonment of that type of action.

10.  See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925—928, 101 Cal.Rptr. 568, 496 P.2d 480; Holtz v. Superior Court (1970) 3 Cal.3d 296, 302—311, 90 Cal.Rptr. 345, 475 P.2d 441; Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 261—264, 42 Cal.Rptr. 89, 398 P.2d 129; House v. L. A. County Flood Control Dist. (1944) 25 Cal.2d 384, 391, 153 P.2d 950; Aaron v. City of Los Angeles, supra, 40 Cal.App.3d 471, 477–484 and 493, 115 Cal.Rptr. 162; City of Oakland v. Nutter (1970) 13 Cal.App.3d 752, 765—768, 92 Cal.Rptr. 347; and Beckley v. Reclamation Borad (1962) 205 Cal.App.2d 734, 747—748, 23 Cal.Rptr. 428. Allegations that the city without the permission of plaintiff, constructed certain access improvements on plaintiff's property, are admittedly without foundation, and are not themselves relied upon by plaintiff as giving him right to a cause of action for inverse condemnation, because no claim was filed for any specific damage so occasioned.

11.  The complaint alleges that on October 10, 1972, following rezoning of the property (see text below), the amount of the assessment was reduced to one-third of the original amount, $451,734.29, by the city.

12.  Plaintiff has requested that the court take judicial notice of a ‘Staff Report on Regulation to Preserve Foothill Open-Space’ prepared by the Director of Planning and Community Development of the City of Palo Alto because it reflects the basis for the action of the planning commission and city council of which plaintiff complains. Recognition and perusal of the report does not affect the legal principles discussed in these provisions. It would only be material on the issue of determining whether or not the zoning, which plaintiff concedes is valid, is constitutional; an issue I would not reach on this record.

13.  Plaintiff also refers to section 65912 of the Government Code which provides with respect to open-space zoning, as follows: ‘The Legislature hereby finds and declares that this article is not intended, and shall not be construed, as authorizing the city or the county to exercise its power to adopt, amend or repeal an open-space zoning ordinance in manner which will take or damage private property for public use without the payment of just compensation therefor. This section is not intended to increase or decrease the rights of any owner of property under the Constitution of the State of California or of the United States.’As pointed out above and below plaintiff has expressly elected not to question the validity of the zoning ordinance, nor to seek to have his property relieved of any unconstitutional restraint.

14.  An issue similar to that presented by this case is pending in the Supreme Court following the grant of a hearing in HFH, Ltd. v. Superior Court [City of Cerritos], and a related case on November 13, 1974 (L.A. 30382/83). There in a split decision Division Two of the Court of Appeal for the Second District issued a writ of mandate ordering the trial court to vacate an order sustaining a general demurrer to a cause of action seeking damages for inverse condemnation in an action founded on the theory that ‘downzoning’ had damaged their property. (Cal.App., 116 Cal.Rptr. 436, 439–445.) A penetrating dissent by Fleming, J., in my opinion properly applies the cases last cited and concludes ‘Because plaintiffs have an ample remedy by writ of mandate to correct arbitrary and discriminatory changes in zoning, they are not entitled to pursue inverse condemnation. I would deny the writs.’

ELKINGTON, Associate Justice.

MOLINARI, P. J., concurs.