First English Evangelical Lutheran Church v. County of Los Angeles
AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH OF GLENDALE
v.
COUNTY OF LOS ANGELES, CALIFORNIA
Supreme Court of United States.
*305 Michael M. Berger argued the cause for appellant. With him on the briefs was Jerrold A. Fadem.
*306 Jack R. White argued the cause for appellee. With him on the brief were DeWitt W. Clinton, Charles J. Moore, and Darlene B. Fischer.[*]
Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Ayer, Deputy Assistant Attorneys General Marzulla, Hookano, and Kmiec, and Edwin S. Kneedler and Peter R. Steenland, Jr.; for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, Richard C. Jacobs, N. Gregory Taylor, and Theodora Berger, Assistant Attorneys General, and Craig C. Thompson and Richard M. Frank, Deputy Attorneys General, joined by the Attorneys General for their respective States as follows: Harold M. Brown of Alaska, John Steven Clark of Arkansas, Jim Smith of Florida, Corinne K. A. Watanabe of Hawaii, Neil F. Hartigan of Illinois, James E. Tierney of Maine, Francis X. Bellotti of Massachusetts, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, William L. Webster of Missouri, Stephen E. Merrill of New Hampshire, Robert Abrams of New York, Nicholas J. Spaeth of North Dakota, Michael Turpin of Oklahoma, T. Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, Jim Maddox of Texas, David L. Wilkinson of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Kenneth O. Eikenberry of Washington, Archie G. McClintock of Wyoming, and Hector Rivera Cruz of Puerto Rico; for the city of Los Angeles et al. by Gary R. Netzer, Claudia McGee Henry, and Anthony Saul Alperin; for the National Association of Counties et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and Beate Bloch; and for the Conservation Foundation et al. by Fred P. Bosselman and Elizabeth S. Merritt.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In this case the California Court of Appeal held that a landowner who claims that his property has been "taken" by a land-use regulation may not recover damages for the time before *307 it is finally determined that the regulation constitutes a "taking" of his property. We disagree, and conclude that in these circumstances the Fifth and Fourteenth Amendments to the United States Constitution would require compensation for that period.
In 1957, appellant First English Evangelical Lutheran Church purchased a 21-acre parcel of land in a canyon along the banks of the Middle Fork of Mill Creek in the Angeles National Forest. The Middle Fork is the natural drainage channel for a watershed area owned by the National Forest Service. Twelve of the acres owned by the church are flat land, and contained a dining hall, two bunkhouses, a caretaker's lodge, an outdoor chapel, and a footbridge across the creek. The church operated on the site a campground, known as "Lutherglen," as a retreat center and a recreational area for handicapped children.
In July 1977, a forest fire denuded the hills upstream from Lutherglen, destroying approximately 3,860 acres of the watershed area and creating a serious flood hazard. Such flooding occurred on February 9 and 10, 1978, when a storm dropped 11 inches of rain in the watershed. The runoff from the storm overflowed the banks of the Mill Creek, flooding Lutherglen and destroying its buildings.
In response to the flooding of the canyon, appellee County of Los Angeles adopted Interim Ordinance No. 11,855 in January 1979. The ordinance provided that "[a] person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon . . . ." App. to Juris. Statement A31. The ordinance was effective immediately because the county determined that it was "required for the immediate preservation of the public health and safety . . . ." Id., at A32. The interim flood protection area described by the ordinance included the flat areas on either side of Mill Creek on which Lutherglen had stood.
*308 The church filed a complaint in the Superior Court of California a little more than a month after the ordinance was adopted. As subsequently amended, the complaint alleged two claims against the county and the Los Angeles County Flood Control District. The first alleged that the defendants were liable under Cal. Govt. Code Ann. § 835 (West 1980)[1] for dangerous conditions on their upstream properties that contributed to the flooding of Lutherglen. As a part of this claim, appellant also alleged that "Ordinance No. 11,855 denies [appellant] all use of Lutherglen." App. 12, 49. The second claim sought to recover from the Flood Control District in inverse condemnation and in tort for engaging in cloud seeding during the storm that flooded Lutherglen. Appellant sought damages under each count for loss of use of Lutherglen. The defendants moved to strike the portions of the complaint alleging that the county's ordinance denied all use of Lutherglen, on the view that the California Supreme Court's decision in Agins v. Tiburon, 24 Cal. 3d 266, 598 P. 2d 25 (1979), aff'd on other grounds, 447 U. S. 255 (1980), rendered the allegation "entirely immaterial and irrelevant[, with] no bearing upon any conceivable cause of action herein." App. 22. See Cal. Civ. Proc. Code Ann. § 436(a) (West Supp. 1987) ("The court may . . .[s]trike out any irrelevant, false, or improper matter inserted in any pleading").
In Agins v. Tiburon, supra, the California Supreme Court decided that a landowner may not maintain an inverse condemnation suit in the courts of that State based upon a "regulatory" taking. 24 Cal. 3d, at 275-277, 598 P. 2d, at 29-31. In the court's view, maintenance of such a suit would allow a landowner to force the legislature to exercise its power of eminent domain. Under this decision, then, compensation is not required until the challenged regulation or ordinance has been held excessive in an action for declaratory *309 relief or a writ of mandamus and the government has nevertheless decided to continue the regulation in effect. Based on this decision, the trial court in the present case granted the motion to strike the allegation that the church had been denied all use of Lutherglen. It explained that "a careful rereading of the Agins case persuades the Court that when an ordinance, even a non-zoning ordinance, deprives a person of the total use of his lands, his challenge to the ordinance is by way of declaratory relief or possibly mandamus." App. 26. Because the appellant alleged a regulatory taking and sought only damages, the allegation that the ordinance denied all use of Lutherglen was deemed irrelevant.[2]
On appeal, the California Court of Appeal read the complaint as one seeking "damages for the uncompensated taking of all use of Lutherglen by County Ordinance No. 11,855. . . ." App. to Juris. Statement A13-A14. It too relied on the California Supreme Court's decision in Agins in rejecting the cause of action, declining appellant's invitation to reevaluate Agins in light of this Court's opinions in San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 (1981). The court found itself obligated to follow Agins "because the United States Supreme Court has not yet ruled on the question of whether a state may constitutionally limit the remedy for a taking to nonmonetary relief . . . ." App. to Juris. Statement A16. It accordingly affirmed the trial court's decision to strike the allegations concerning appellee's ordinance.[3] The California Supreme Court denied review.
*310 This appeal followed, and we noted probable jurisdiction. 478 U. S. 1003 (1986). Appellant asks us to hold that the California Supreme Court erred in Agins v. Tiburon in determining that the Fifth Amendment, as made applicable to the States through the Fourteenth Amendment, does not require compensation as a remedy for "temporary" regulatory takings those regulatory takings which are ultimately invalidated by the courts.[4] Four times this decade, we have considered similar claims and have found ourselves for one reason or another unable to consider the merits of the Agins rule. See MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 (1986); Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U. S. 172 (1985); San Diego Gas & Electric Co., supra; Agins v. Tiburon, supra. For the reasons explained below, however, we find the constitutional claim properly presented in this case, and hold that *311 on these facts the California courts have decided the compensation question inconsistently with the requirements of the Fifth Amendment.
I
Concerns with finality left us unable to reach the remedial question in the earlier cases where we have been asked to consider the rule of Agins. See MacDonald, Sommer & Frates, supra, at 351 (summarizing cases). In each of these cases, we concluded either that regulations considered to be in issue by the state court did not effect a taking, Agins v. Tiburon, 447 U. S., at 263, or that the factual disputes yet to be resolved by state authorities might still lead to the concluion that no taking had occurred. MacDonald, Sommer & Frates, supra, at 351-353; Williamson County, supra, at 188-194; San Diego Gas & Electric Co., supra, at 631-632. Consideration of the remedial question in those circumstances, we concluded, would be premature.
The posture of the present case is quite different. Appellant's complaint alleged that "Ordinance No. 11,855 denies [it] all use of Lutherglen," and sought damages for this deprivation. App. 12, 49. In affirming the decision to strike this allegation, the Court of Appeal assumed that the complaint sought "damages for the uncompensated taking of all use of Lutherglen by County Ordinance No. 11,855." App. to Juris. Statement A13-A14 (emphasis added). It relied on the California Supreme Court's Agins decision for the conclusion that "the remedy for a taking [is limited] to nonmonetary relief . . . ." App. to Juris. Statement A16 (emphasis added). The disposition of the case on these grounds isolates the remedial question for our consideration. The rejection of appellant's allegations did not rest on the view that they were false. Cf. MacDonald, Sommer & Frates, supra, at 352-353, n. 8 (California court rejected allegation in the complaint that appellant was deprived of all beneficial use of its property); Agins v. Tiburon, supra, at 259, n. 6 (same). Nor did the court rely on the theory that regulatory measures such as *312 Ordinance No. 11,855 may never constitute a taking in the constitutional sense. Instead, the claims were deemed irrelevant solely because of the California Supreme Court's decision in Agins that damages are unavailable to redress a "temporary" regulatory taking.[5] The California Court of Appeal has thus held that, regardless of the correctness of appellant's claim that the challenged ordinance denies it "all use of Lutherglen," appellant may not recover damages until the ordinance is finally declared unconstitutional, and then only for any period after that declaration for which the county seeks to enforce it. The constitutional question pretermitted in our earlier cases is therefore squarely presented here.[6]
We reject appellee's suggestion that, regardless of the state court's treatment of the question, we must independently evaluate the adequacy of the complaint and resolve the *313 takings claim on the merits before we can reach the remedial question. However "cryptic" to use appellee's description the allegations with respect to the taking were, the California courts deemed them sufficient to present the issue. We accordingly have no occasion to decide whether the ordinance at issue actually denied appellant all use of its property[7] or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations. See, e. g., Goldblatt v. Hempstead, 369 U. S. 590 (1962); Hadacheck v. Sebastian, 239 U. S. 394 (1915); Mugler v. Kansas, 123 U. S. 623 (1887). These questions, of course, remain open for decision on the remand we direct today. We now turn to the question whether the Just Compensation Clause requires the government to pay for "temporary" regulatory takings.[8]
*314 II
Consideration of the compensation question must begin with direct reference to the language of the Fifth Amendment, which provides in relevant part that "private property [shall not] be taken for public use, without just compensation." As its language indicates, and as the Court has frequently noted, this provision does not prohibit the taking of private property, but instead places a condition on the exercise of that power. See Williamson County, 473 U. S., at 194; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 297, n. 40 (1981); Hurley v. *315 Kincaid, 285 U. S. 95, 104 (1932); Monongahela Navigation Co. v. United States, 148 U. S. 312, 336 (1893); United States v. Jones, 109 U. S. 513, 518 (1883). This basic understanding of the Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking. Thus, government action that works a taking of property rights necessarily implicates the "constitutional obligation to pay just compensation." Armstrong v. United States, 364 U. S. 40, 49 (1960).
We have recognized that 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 . . . .' " United States v. Clarke, 445 U. S. 253, 257 (1980), quoting 6 P. Nichols, Eminent Domain § 25.41 (3d rev. ed. 1972). As noted in JUSTICE BRENNAN's dissent in San Diego Gas & Electric Co., 450 U. S., at 654-655, it 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 suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment. The suits were thus founded upon the Constitution of the United States." Id., at 16. (Emphasis added.)
*316 Jacobs, moreover, does not stand alone, for the Court has frequently repeated the view that, in the event of a taking, the compensation remedy is required by the Constitution. See, e. g., Kirby Forest Industries, Inc. v. United States, 467 U. S. 1, 5 (1984); United States v. Causby, 328 U. S. 256, 267 (1946); Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 304-306 (1923); Monongahela Navigation, supra, at 327.[9]
It has also been established doctrine at least since Justice Holmes' opinion for the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), that "[t]he 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." Id., at 415. While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. In Pumpelly v. Green Bay Co., 13 Wall. 166, 177-178 (1872), construing a provision in the Wisconsin Constitution identical to the Just Compensation Clause, this Court said:
"It would be a very curious and unsatisfactory result, if. . . it shall be held that if the government refrains from the absolute conversion of real property to the uses of *317 the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use."
Later cases have unhesitatingly applied this principle. See, e. g., Kaiser Aetna v. United States, 444 U. S. 164 (1979); United States v. Dickinson, 331 U. S. 745, 750 (1947); United States v. Causby, supra.
While the California Supreme Court may not have actually disavowed this general rule in Agins, we believe that it has truncated the rule by disallowing damages that occurred prior to the ultimate invalidation of the challenged regulation. The California Supreme Court justified its conclusion at length in the Agins opinion, concluding that:
"In combination, the need for preserving a degree of freedom in the land-use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy, persuade us that on balance mandamus or declaratory relief rather than inverse condemnation is the appropriate relief under the circumstances." 24 Cal. 3d, at 276-277, 598 P. 2d, at 31.
We, of course, are not unmindful of these considerations, but they must be evaluated in the light of the command of the Just Compensation Clause of the Fifth Amendment. The Court has recognized in more than one case that the government may elect to abandon its intrusion or discontinue regulations. See, e. g., Kirby Forest Industries, Inc. v. United States, supra; United States v. Dow, 357 U. S. 17, 26 (1958). Similarly, a governmental body may acquiesce in a judicial declaration that one of its ordinances has effected an unconstitutional taking of property; the landowner has no right under the Just Compensation Clause to insist that a "temporary" taking be deemed a permanent taking. But we have *318 not resolved whether abandonment by the government requires payment of compensation for the period of time during which regulations deny a landowner all use of his land.
In considering this question, we find substantial guidance in cases where the government has only temporarily exercised its right to use private property. In United States v. Dow, supra, at 26, though rejecting a claim that the Government may not abandon condemnation proceedings, the Court observed that abandonment "results in an alteration in the property interest taken from [one of] full ownership to one of temporary use and occupation. . . . In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily. See Kimball Laundry Co. v. United States, 338 U. S. 1 [1949]; United States v. Petty Motor Co., 327 U. S. 372 [1946]; United States v. General Motors Corp., 323 U. S. 373 [1945]." Each of the cases cited by the Dow Court involved appropriation of private property by the United States for use during World War II. Though the takings were in fact "temporary," see United States v. Petty Motor Co., 327 U. S. 372, 375 (1946), there was no question that compensation would be required for the Government's interference with the use of the property; the Court was concerned in each case with determining the proper measure of the monetary relief to which the property holders were entitled. See Kimball Laundry Co. v. United States, 338 U. S. 1, 4-21 (1949); Petty Motor Co., supra, at 377-381; United States v. General Motors Corp., 323 U. S. 373, 379-384 (1945).
These cases reflect the fact that "temporary" takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation. Cf. San Diego Gas & Electric Co., 450 U. S., at 657 (BRENNAN, J., dissenting) ("Nothing in the Just Compensation Clause suggests that `takings' must be permanent and irrevocable"). It is axiomatic that the Fifth Amendment's just compensation provision is "designed to bar Government from forcing some *319 people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U. S., at 49. See also Penn Central Transportation Co. v. New York City, 438 U. S. 104, 123-125 (1978); Monongahela Navigation Co. v. United States, 148 U. S., at 325. In the present case the interim ordinance was adopted by the County of Los Angeles in January 1979, and became effective immediately. Appellant filed suit within a month after the effective date of the ordinance and yet when the California Supreme Court denied a hearing in the case on October 17, 1985, the merits of appellant's claim had yet to be determined. The United States has been required to pay compensation for leasehold interests of shorter duration than this. The value of a leasehold interest in property for a period of years may be substantial, and the burden on the property owner in extinguishing such an interest for a period of years may be great indeed. See, e. g., United States v. General Motors, supra. Where this burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period. Cf. United States v. Causby, 328 U. S., at 261 ("It is the owner's loss, not the taker's gain, which is the measure of the value of the property taken"). Invalidation of the ordinance or its successor ordinance after this period of time, though converting the taking into a "temporary" one, is not a sufficient remedy to meet the demands of the Just Compensation Clause.
Appellee argues that requiring compensation for denial of all use of land prior to invalidation is inconsistent with this Court's decisions in Danforth v. United States, 308 U. S. 271 (1939), and Agins v. Tiburon, 447 U. S. 255 (1980). In Danforth, the landowner contended that the "taking" of his property had occurred prior to the institution of condemnation proceedings, by reason of the enactment of the Flood Control Act itself. He claimed that the passage of that Act had diminished *320 the value of his property because the plan embodied in the Act required condemnation of a flowage easement across his property. The Court held that in the context of condemnation proceedings a taking does not occur until compensation is determined and paid, and went on to say that "[a] reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project," but "[s]uch changes in value are incidents of ownership. They cannot be considered as a `taking' in the constitutional sense." Danforth, supra, at 285. Agins likewise rejected a claim that the city's preliminary activities constituted a taking, saying that "[m]ere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are `incidents of ownership.' " See 447 U. S., at 263, n. 9.
But these cases merely stand for the unexceptional proposition that the valuation of property which has been taken must be calculated as of the time of the taking, and that depreciation in value of the property by reason of preliminary activity is not chargeable to the government. Thus, in Agins, we concluded that the preliminary activity did not work a taking. It would require a considerable extension of these decisions to say that no compensable regulatory taking may occur until a challenged ordinance has ultimately been held invalid.[10]
*321 Nothing we say today is intended to abrogate the principle that the decision to exercise the power of eminent domain is a legislative function " `for Congress and Congress alone to determine.' " Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 240 (1984), quoting Berman v. Parker, 348 U. S. 26, 33 (1954). Once a court determines that a taking has occurred, the government retains the whole range of options already available amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain. Thus we do not, as the Solicitor General suggests, "permit a court, at the behest of a private person, to require the . . . Government to exercise the power of eminent domain . . . ." Brief for United States as Amicus Curiae 22. We merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.
We also point out that the allegation of the complaint which we treat as true for purposes of our decision was that the ordinance in question denied appellant all use of its property. We limit our holding to the facts presented, and of course do not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us. We realize that even our present holding will undoubtedly lessen to some extent the freedom and flexibility of land-use planners and governing bodies of municipal corporations when enacting land-use regulations. But such consequences necessarily flow from any decision upholding a claim of constitutional right; many of the provisions of the Constitution are designed to limit the flexibility and freedom of governmental authorities, and the Just Compensation Clause of the Fifth Amendment is one of them. As Justice Holmes aptly noted more than 50 years ago, "a strong public *322 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." Pennsylvania Coal Co. v. Mahon, 260 U. S., at 416.
Here we must assume that the Los Angeles County ordinance has denied appellant all use of its property for a considerable period of years, and we hold that invalidation of the ordinance without payment of fair value for the use of the property during this period of time would be a constitutionally insufficient remedy. The judgment of the California Court of Appeal is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join as to Parts I and III, dissenting.
One thing is certain. The Court's decision today will generate a great deal of litigation. Most of it, I believe, will be unproductive. But the mere duty to defend the actions that today's decision will spawn will undoubtedly have a significant adverse impact on the land-use regulatory process. The Court has reached out to address an issue not actually presented in this case, and has then answered that selfimposed question in a superficial and, I believe, dangerous way.
Four flaws in the Court's analysis merit special comment. First, the Court unnecessarily and imprudently assumes that appellant's complaint alleges an unconstitutional taking of Lutherglen. Second, the Court distorts our precedents in the area of regulatory takings when it concludes that all ordinances which would constitute takings if allowed to remain in effect permanently, necessarily also constitute takings if they are in effect for only a limited period of time. Third, the Court incorrectly assumes that the California Supreme Court has already decided that it will never allow a state court to grant monetary relief for a temporary regulatory taking, and *323 then uses that conclusion to reverse a judgment which is correct under the Court's own theories. Finally, the Court errs in concluding that it is the Takings Clause, rather than the Due Process Clause, which is the primary constraint on the use of unfair and dilatory procedures in the land-use area.
I
In the relevant portion of its complaint for inverse condemnation, appellant alleged:
"16
"On January 11, 1979, the County adopted Ordinance No. 11,855, which provides:
" `Section 1. A person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon, vicinity of Hidden Springs, as shown on Map No. 63 ML 52, attached hereto and incorporated herein by reference as though fully set forth.'
"17
"Lutherglen is within the flood protection area created by Ordinance No. 11,855.
"18
"Ordinance No. 11,855 denies First Church all use of Lutherglen." App. 49.
Because the Church sought only compensation, and did not request invalidation of the ordinance, the Superior Court granted a motion to strike those three paragraphs, and consequently never decided whether they alleged a "taking."[1]*324 The Superior Court granted the motion to strike on the basis of the rule announced in Agins v. Tiburon, 24 Cal. 3d 266, 598 P. 2d 25 (1979). Under the rule of that case, a property owner who claims that a land-use restriction has taken a property for public use without compensation must file an action seeking invalidation of the regulation, and may not simply demand compensation. The Court of Appeal affirmed on the authority of Agins alone,[2] also without holding that the complaint had alleged a violation of either the California Constitution or the Federal Constitution. At most, it assumed, arguendo, that a constitutional violation had been alleged.
This Court clearly has the authority to decide this case by ruling that the complaint did not allege a taking under the Federal Constitution,[3] and therefore to avoid the novel constitutional *325 issue that it addresses. Even though I believe the Court's lack of self-restraint is imprudent, it is imperative to stress that the Court does not hold that appellant is entitled to compensation as a result of the flood protection regulation that the county enacted. No matter whether the regulation is treated as one that deprives appellant of its property on a permanent or temporary basis, this Court's precedents demonstrate that the type of regulatory program at issue here cannot constitute a taking.
"Long ago it was recognized that `all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community.' " Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 491-492 (1987), quoting Mugler v. Kansas, 123 U. S. 623, 665 (1887). Thus, in order to protect the health and safety of the community,[4] government may condemn unsafe structures, *326 may close unlawful business operations, may destroy infected trees, and surely may restrict access to hazardous areas for example, land on which radioactive materials have been discharged, land in the path of a lava flow from an erupting volcano, or land in the path of a potentially life-threatening flood.[5] When a governmental entity imposes these types of health and safety regulations, it may not be "burdened with the condition that [it] must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community." Mugler, supra, at 668-669; see generally Keystone Bituminous, supra, at 485-493.
In this case, the legitimacy of the county's interest in the enactment of Ordinance No. 11, 855 is apparent from the face of the ordinance and has never been challenged.[6] It was enacted *327 as an "interim" measure "temporarily prohibiting" certain construction in a specified area because the County Board believed the prohibition was "urgently required for the immediate preservation of the public health and safety." Even if that were not true, the strong presumption of constitutionality that applies to legislative enactments certainly requires one challenging the constitutionality of an ordinance of this kind to allege some sort of improper purpose or insufficient justification in order to state a colorable federal claim for relief. A presumption of validity is particularly appropriate in this case because the complaint did not even allege that the ordinance is invalid, or pray for a declaration of invalidity or an injunction against its enforcement.[7] Nor did it allege any facts indicating how the ordinance interfered with any future use of the property contemplated or planned by appellant. In light of the tragic flood and the loss of life that precipitated