Opinion
Hearing Granted Nov. 13, 1974.
Opinion on pages 908-923 omitted.
HEARING GRANTED
For Opinion on Hearing see 125 Cal.Rptr. 365, 542 P.2d 237.
[116 Cal.Rptr. 438]Oliver, Stoever & Laskin, C. Edward Dilkes, Los Angeles, for petitioners.
Ebben & Brown, by J. Kenneth Brown, City Atty., Los Angeles, City of Cerritos, for real parties in interest.
No appearance for Respondent.
COMPTON, Associate Justice.
In companion cases, HFH, LTD., a limited partnership, (Case No. C. 57298) and Von's Grocery Company, a Delaware Corporation (Case No. C. 57299) challenge the actions of the City of Cerritos (City) in rezoning two contiguous parcels of real estate. Both HFH and Von's derive their title from a single owner of a parcel which originally consisted of 5.87 acres of unimproved property. HFH acquired 3.6 acres and Von's acquired approximately 2.7 acres. The property in question comprises one quadrant of the intersection of Carmenita and South Streets.
The complaints in these actions each plead a single cause of action based on one set of operative facts and in several counts set forth various theories of relief, i.e., injunctive relief, declaratory relief and damages for inverse condemnation. The trial court sustained a demurrer without leave to amend to the count of the complaint which sounded in inverse condemnation. A demurrer to the count seeking declaratory relief was sustained with leave to amend, and a demurrer to the count seeking injunctive relief was sustained without leave to amend but the plaintiffs were granted leave to amend to add a count seeking a writ of mandate. Thus, in the present procedural configuration, the cases are set to go forward on the theory of declaratory relief and mandate but without any theory of damages for inverse condemnation. We granted orders to show cause in each case and have consolidated them for hearing on a petition for a writ of prohibition and a writ of mandate. By their petitions for writs of prohibition the plaintiffs seek to prevent further litigation of the case in its present posture and by their petitions for writs of mandate seek to have this court direct the trial court to vacate its order sustaining the demurrer without leave to amend the count of inverse condemnation.
Both sides agree that the issue presented by these petitions is whether or not inverse condemnation will lie in a so-called "down-zoning" case.
THE FACTS
A demurrer admits all of the allegations of the complaint, and we set forth the facts there alleged. Prior to 1966, approximately 5.8 acres at the intersection of Carmenita and South Streets in the City of Cerritos were owned by one Robert Grant. At that time the property was zoned for agricultural purposes. Grant entered into an agreement with Von's Grocery Company to sell 2.7 acres to Von's for $125,000 on condition that the entire 5.8 acres would be rezoned for commercial use (C-2) to permit the development of a shopping center. The agreement between Grant and Von's required that all of the property including that sold to Von's would be committed [116 Cal.Rptr. 439] to a joint commercial development project.
In early 1966, a parcel map was submitted to the City of Cerritos. Pursuant to this map the property was parceled in such a manner that it could only be used as a part of an integrated shopping center development. The City rezoned the property for commercial use and approved the map. Thereafter, Von's acquired the 2.7 acres for the stated $150,000 and HFH bought the remaining property from Grant for $238,000. HFH assumed the obligation of Grant to develop the subject property for shopping center purposes in conjunction with Von's Grocery. Thus the two plaintiffs with an aggregate investment of $338,000 acquired property which was zoned for commercial use for the specific purpose of erecting an integrated shopping center.
In July of 1971, the City declared a moritorium with respect to the use of certain property zone categories for the alleged purpose of restudying land use policies. The subject property was temporarily reclassified as agricultural. In October of 1971, the City adopted a general plan showing a substantial portion of the subject property to be designated for neighborhood commercial use, which use is permitted by C-2 zoning. Thereafter, the plaintiffs submitted to the City plans for development of the property as previously contemplated along with a request that the zone be reinstated to C-2 or commercial.
In July of 1972, the City rejected the proposed plans and rezoned the property as low-density, single family residential. Two other quadrants of the same intersection within the boundaries of the City of Cerritos were zoned for commercial use. The fourth quadrant which lies within the City of La Palma in Orange County is also devoted to commercial use. Plaintiffs allege in their complaint that the value of the property as commercial property, is $400,000 that its aggregate value under residential zoning is $75,000. The size, shape, location and other physical factors relating to the property render it useless for single family residential purposes.
DISCUSSION
Article I, section 14 of the California Constitution provides that private property may not be taken or damaged for public use without just compensation. The Fifth Amendment of the United States Constitution provides the same protection.
"The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some 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. 40, at 49, 80 S.Ct. 1563, at 1569, 4 L.Ed.2d 1554.) (Also see Clement v. State Reclamation Board, 35 Cal.2d 628, 220 P.2d 897.)
The measure of the taking in eminent domain is the loss to the owner as distinguished from the value to the state and is not affected by the manner in which the state uses the property taken. (People v. La Macchia, 41 Cal.2d 738, 264 P.2d 15; United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16.)
On the other hand, zoning regulations which regulate the use of property have long been recognized as a valid exercise of the police power of the government to protect public welfare, health, safety and morals.
Zoning ordinances when reasonable in object and not arbitrary in operation constitute a justifiable exercise of the police power in the interest of the public welfare. Zoning is a legislative matter and the courts will not interfere with the exercise of this power unless it is clearly arbitrary and unreasonable. (Wilkins v. City of San Bernardino, 29 Cal.2d 332, 175 P.2d 542.) Every intendment is in favor of the validity of the ordinance. (Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38.)
[116 Cal.Rptr. 440]The distinction between a valid exercise of police power and the taking or damaging of private property for which compensation is required is not clear cut.
"In some degree those opposed policies are manifested in the conflict between the constitutional mandate that compensation be paid when private property is taken or damaged for a public purpose and the exercise of the police power where compensation need not be paid. The line between those two concepts is far from clearly marked." (Bacich v. Board of Control, 23 Cal.2d 343, at 351, 144 P.2d 818, 823.) Each case, of course, must stand or fall on its own particular facts.
"In determining the validity of zoning regulations the seriousness of the restriction on the private right must be considered in balance with the expediency of the public interest, since the police power, which is the legal basis for zoning legislation, ... must be reconciled with the legitimate use of private property, in harmony with constitutional guarantees." (101 C.J.S. Zoning § 37, p. 745.)
In Bank of America v. Town of Atherton, 60 Cal.App.2d 268, at p. 273, 140 P.2d 678, at p. 681, it was stated: "The courts have held ... that zoning is the deprivation, for the public good, of certain uses by owners of property to which their property might otherwise be put [citation] and that if the use is so far restricted and the value depreciated that it can be said that the regulation goes too far, it will be deemed a taking of the property, in which event the ordinance becomes invalid and unconstitutional, because the taking is without due process of law." (Also see Kissinger v. City of Los Angeles, 161 Cal.App.2d 454, 327 P.2d 10.)
Both the police power and the power of eminent domain are exercised in the public interest and it is to be expected that in any exercise of the police power certain rights of individuals will be adversely affected. It has been stated that an individual loss occasioned by the exercise of the police power is simply the price to be paid for living in society. (Reynolds v. Barrett, 12 Cal.2d 244, 83 P.2d 29; Robinson v. City of Los Angeles, 146 Cal.App.2d 810, 304 P.2d 814.)
The fact that a public entity has the power to regulate land use and that zoning is considered to be a proper exercise of the police power does not automatically put such exercise beyond the reach of the constitutional requirement of just compensation.
Quoting from Justice Holmes in Penna. Coal Co. v. Mahon, 260 U.S. 393, at pp. 415-416, 43 S.Ct. 158, at p. 160, 67 L.Ed. 322: "The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in the decisions upon the Fourteenth Amendment. [Citation.] When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States.... 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."
If a municipality determines that a particular area is best devoted to a particular use such determination may be enforced as against a property owner but it does not necessarily follow that the public interest may be thus accommodated in all cases without the need for compensation where the loss to the individual property owner is so great that he is forced to bear more than his fair share of the improvement of the public welfare.
It is a salutary thing for the City to plan a community so as to prevent blight and to provide open space, recreational areas and a healthful and aesthetically pleasant community. With the current [116 Cal.Rptr. 441] emphasis on such goals and objectives in the face of the modern urbanization explosion, we must never lose sight of the fact that individual property owners should not unreasonably be forced to carry the cost of achieving goals which are to the benefit of the entire community. Under our system of private property it is to be expected that the public will bear the cost of public improvements.
The term "real property" means only those intangible interests in land which the owner possesses, and probably the most important of those is the use to which the property can be put. The owner cannot hold a parcel of real property in his hands. When the government denies the property owner the right to make particular use of his property it has "taken" his property. It is too late in history for us to now say that every such taking, however slight, requires compensation, the use of this police power in regulating land use by zoning is solidly entrenched in the law. But that is not to say that never is the government required to pay just compensation merely because such a taking is labeled as zoning. (Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com., 11 Cal.Ap.3d 557, 89 Cal.Rptr. 897; Penna. Coal Co. v. Mahon, supra; People v. Associated Oil Co., 211 Cal. 93, 294P. 717.)
The oft-repeated statement that a loss suffered by an individual as a result of the valid exercise of police power is the price the individual pays for living in a society, if carried to its logical extreme, could result in the price to be paid being increased to total loss of his private possessions. The safeguard against that result is the constitutional provision preventing a taking or damaging of private property without just compensation. The application of the constitutional provision and the determination of just compensation are judicial functions. (Monongahela Navigat'n Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463; United States v.New River Collieries, 262 U.S. 341, 43 S.Ct. 565, 67 L.Ed. 1014; Beals v. City of Los Angeles, 23 Cal.2d 381, 144 P.2d 839; County of Los Angeles v. Ortiz, 6 Cal.3d 141, 98 Cal.Rptr. 454, 490 P.2d 1142.)
The Constitution is designed to limit the "price" one must pay for living in an organized society, hence that "price" cannot be a forfeiture of the protection which that document provides.
As we have seen graphically demonstrated in recent times, as a result of opinions from our highest courts, a person does not, as the "price" of living in organized society, surrender his protection against unreasonable search and seizure.
If a person's property, even in a crime-ridden urban area, is protected against unreasonable, albeit transitory, search and seizure by the government, it is at least equally protected against total uncompensated taking by the government.
The right of private property which is protected by the constitutional requirement of compensation for its taking is as important a part of our constitutional system as any other right guaranteed to the citizens by that system and the desire of the government to maintain an environment which is aesthetically pleasing is no more praiseworthy than its desire to maintain an environment free of crime. Thus it is no more valid for the government, in the exercise of its police powers, to visit financial deprivation on the owner of private property in the name of zoning, than to impair his constitutional liberty in the name of suppressing crime.
As stated by the United States Supreme Court in Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930, "It is surely anomalous to say that the individual and his private property are fully protected ... [by the Constitution] only when the individual is suspect of criminal behavior."
By overlaying the police power with the requirement of just compensation in those situations where the individual loss is great as compared to the public gain, the public [116 Cal.Rptr. 442] entity will be more judicious in the exercise of its power and will have the option of permitting the property owner to have the beneficial use of his property or pursuing what the public entity envisions is an action in the public interest by denying the property owner the particular use of his property and paying for the privilege.
In the case at bar the allegations are that the property in question has been so parceled as to make it unusable for other than the proposed commercial venture and its value diminished by some $325,000. The operative facts suggest an arbitrary and discriminatory action on the part of the City. Does such a result point to inverse condemnation?
The parties have marshalled cases on both sides of the question, none of which are squarely in point with the facts of this case. It is true that in many of the cases cited by the City there is language to the effect that a property owner has no vested right in a particular use of his property until such time as he is actually embarked upon such use by obtaining a building permit. But as we shall point out in each of these cases the issue was not squarely presented as to whether a property owner who invests a substantial sum of money in relying upon an existing zone classification may be deprived of that investment by the device of "down-zoning" such as occurred in the instant case, even though the property owner has not embarked upon the actual use of the property.
Anderson v. City Council, 229 Cal.App.2d 79, 40 Cal.Rptr. 41, relied on heavily by the City states that a property owner acquires no vested right as against future zoning merely by purchasing real property. However, in Anderson, the plaintiffs had sought a writ of mandate to compel the issuance of a land use permit and a building permit to construct a gasoline station. The crux of the Anderson decision is that the plaintiffs' application for permits to build a service station contained plans which would have required a variance in existing setback requirements and the plans included an encroachment on the county right-of-way. Under the circumstances it was held that the plaintiffs were not entitled to the issuance of the land use permit or the building permit. The discussion of the property owner's rights in "down-zoning" was dicta.
In Smith v. County of Santa Barbara, 243 Cal.App.2d 126, 52 Cal.Rptr. 292, this court affirmed a judgment of dismissal following the sustaining of a demurrer without leave to amend in an action for inverse condemnation. In that case the plaintiff's property was in the vicinity of an airport. When plaintiff attempted to develop the land for residential purposes, the county rezoned all of the property from residential to a "design industrial." It was there noted that the complaint contained no allegations that the property was not valuable under the new zoning category. In the case at bench we have the specific allegation that the property has been reduced in value to a substantial degree.
In Morse v. County of San Luis Obispo, 247 Cal.App.2d 600, 55 Cal.Rptr. 710, plaintiffs acquired property in the vicinity of a county airport, which property was zoned for agriculture. Plaintiffs submitted a tentative subdivision map which proposed R-1 or residential use. Following a denial of their request for "up-zoning" they sought damages for inverse condemnation. The complaint alleged that in purchasing the property plaintiffs had relied on a zoning ordinance which stated that in purchasing the property plaintiffs had relied on a zoning ordinance which stated their land would ultimately be rezoned for subdivision purposes on request. This court held that no cause of action was stated since the existing use was unaffected. That case is readily distinguishable from the case at bar.
Lockard v. City of Los Angeles, supra, 33 Cal.2d 453, 202 P.2d 38, upheld a zoning ordinance as against attack by a plaintiff property owner who sought to extend the boundary of an M-1 zone to embrace his own property which was zoned at a lower classification. This again is a distinguishable situation.
Wilkins v. City of San Bernardino, supra, involved an action by a property owner [116 Cal.Rptr. 443] seeking to have his property "up-zoned" from the classification that it had when he acquired it.
Robinson v. City of Los Angeles, supra, 146 Cal.App.2d 810, 304 P.2d 814, was an action by property owners to prevent "up-zoning" of neighboring property and is inapposite here.
Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d 515, 20 Cal.Rptr. 638, 370P.2d 342, and Spindler Realty Corp. v. Monning, 243 Cal.App.2d 255, 53 Cal.Rptr. 7, did not deal with the question of inverse condemnation. Those cases reached harsh results in upholding the power of the municipality to prevent property from being put to certain uses, and denying injunctive relief and mandate.
On the other hand, Sneed v. County of Riverside, 218 Cal.App.2d 205, 32 Cal.Rptr. 318, reversed a judgment of dismissal after a demurrer was sustained without leave to amend in an action in inverse condemnation where the County of Riverside by a zoning ordinance limited the heights of buildings on property adjacent to an airport. It was there held that this constituted the taking of an easement over the plaintiff's property and the plaintiff had stated a cause of action for inverse condemnation.
Peacock v. County of Sacramento, 271 Cal.App.2d 845, 77 Cal.Rptr. 391, also involved a height limit zone restriction around an airport. The court there following Sneed found inverse condemnation, and distinguished Morse v. County of San Luis Obispo, supra, on the facts.
City here would distinguish Sneed and Peacock on the grounds that the public entity in those cases took property (easements) which were to be used by those entities. Such distinction is unavailing in light of the "loss to owner" test of People v. La Macchia, supra, and United States v. Fuller, supra. In any event, as indicated earlier the cases cited on either side are not squarely in point. We are here dealing with the applicability of the concept of inverse condemnation as applied to"down-zoning" which impairs property value.
In the recent case of State of California v. Superior Court (Veta Co.) 12 Cal.3d 237, 115 Cal.Rptr. 497, 524 P.2d 1281, the Supreme Court held that an action for inverse condemnation would not lie against the California Coastal Zone Conservation Commission because of the latter's refusal to issue a building permit to develop property lying within the coastal zone.
That decision rested principally upon the interim and temporary nature of the Commission and its activities. It did not deal with the question of whether "down zoning" which may result from the ultimate plan developed by the Commission might not constitute inverse condemnation.
In this case the original classification of commercial use for the concerned properties we presume was based upon a finding by the City that such use was in the general interest of the public welfare.
A zoning regulation or classification may be changed only when such action is in the public interest in that it has a reasonable relation to the health, safety, welfare or prosperity of the community. Subject to some exceptions it is a general rule that amendments or other changes in zoning regulations or classifications should be made with caution and only when changed conditions clearly require a modification of the regulations. (101 C.J.S. Zoning pp. 836-837; Jardine v. City of Pasadena, 199 Cal. 64, 248 P. 225; Richter v. Board of Supervisors, 259 Cal.App.2d 99, 66 Cal.Rptr. 52.)
In the instant case at this stage of the proceedings the plaintiffs should be permitted if they can to establish in a trial that the City's change in attitude as to the desirability of a commercial enterprise on one corner of this intersection is not in the interest of the public welfare or that the public interest does not outweigh the damage to the private property owner and that such action is unconstitutionally arbitrary and discriminatory. It must be remembered [116 Cal.Rptr. 444] that in the recent past the City had found such a use to be consistent with the public welfare.
When a city determines that the public welfare is served by zoning certain property at one level and thereafter makes a determination that the public welfare now requires a lower level of classification which will drastically reduce the value of the affected property the possibility arises of a duty to compensate an owner who made a substantial investment in reliance on the city's previous determination. The city under such circumstances must be put to its proof in justifying such action and demonstrating that a property owner is not being unfairly burdened with a cost of improving the public welfare which in justice ought to be borne by the public.
The recognition that zoning as an exercise of the police power can also invoke the principles of eminent domain is recognized in those cases involving attempts to eliminate nonconforming uses. Zoning and especially rezoning partakes of both concepts.
"[A provision permitting continuation of nonconforming uses] is ordinarily included in zoning ordinances because of the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses." (Emphasis added.) (County of San Diego v. McClurken, 37 Cal.2d 683, at 686, 234 P.2d 972, at 975; Edmonds v. County of Los Angeles, 40 Cal.2d 642, 255 P.2d 772.)
"[Z]oning legislation may validly provide for the eventual discontinuance of nonconforming uses within the prescribed reasonable amortization period commensurate with the investment involved...." (Emphasis added.) (National Advertising Co. v. County of Monterey, 1 Cal.3d 875, at pp. 877, 878, 83 Cal.rptr. 577, at p. 578, 464 P.2d 33 at p. 34.)
In principle, the hardship resulting from loss of an investment by purchasing property in reliance on an existing zoning classification seems no less devastating than a hardship resulting from loss of an investment in actually making use of the property.
The fact that a public entity has the right or power to regulate land use does not ipso facto foreclose the duty to compensate for taking private property. (Turner v. County of Del Norte, 24 Cal.App.3d 311, 315, 101 Cal.Rptr. 93.)
In Armstrong v. United States, supra, the government contracted with a shipbuilder for the construction of some boats. Certain unpaid materialmen who furnished material to the contractor were entitled to liens on the boats under the state law. When the shipbuilder defaulted on the government contract, the government, as it had a right to do under the contract, took title to some partially constructed boats and asserted soverign immunity as against the materialmen's liens. The Supreme Court held that the liens were compensable property that had been "taken" or "destroyed" by the government.
It is not our intent to suggest by our holding that a zoning authority's power to prohibit certain land use is diminished. We do hold that in certain appropriate cases, even a valid exercise of that power can invoke the application of the principle of inverse condemnation.
Petitioners here have adequately alleged that the City's rezoning of the property in question amounts to a "taking" or "damaging" for public use for which compensation must be paid. Their complaint thus states a cause of action for inverse condemnation and when such allegations are joined with the other counts of the complaint they simply offer the City alternative courses of action, i.e., to permit the erection of the proposed shopping center or retain the residential classification and compensate petitioners for their loss of property value.
The following language of Mr. Justice Schauer in his forceful dissent in McCarthy v. city of Manhattan Beach, 41 Cal.2d 879, at p. 899, 264 P.2d 932, at p. [116 Cal.Rptr. 445] 943, bears repeating: "Such taking of private property without compensation, as effected in this case, appears to me to go beyond any reasonable application of the police power of a constitutional state which would maintain capitalism as the foundation of its institutions. Capitalism is not to be ashamed of or whittled away. It encompasses the economic system which has brought our country to world leadership. It denotes a way of living in society and of having dealings with others for reciprocal benefits and with mutual gain; it thrives on free enterprise and competition; and it furnishes incentive to be diligent, efficient and thrifty. It means that a man is free, not a slave; that he alone or collectively with others may bargain for his labor and receive and possess the price thereof; that he alone or collectively with others may invest his earnings in real or other property; and that in either event he shall be protected in his right to work and the ownership and enjoyment of his wealth.
"The fact that a particular property is desirable for the public use does not make its private ownership unlawful or warrant using the power of government to destroy its value. Our Constitution envisages a taking for public use in all proper cases but it no more permits to the state a taking without paying fair compensation than it does to an individual. As between the state and an individual our first concern always should be to guard the rights of the individual, not to build up the power of the state."
Let peremptory writs of mandate issue directing the superior court to vacate its order sustaining a demurrer without leave to amend the count of the complainant which alleges inverse condemnation.
BEACH, J., concurs.
FLEMING, Acting Presiding Justice I dissent.
The proper remedy to correct wrongful zoning of real property by the city council is writ of mandate (Code Civ.Proc., § 1084ff.) and not inverse condemnation to compel the City of Cerritos to pay for the property. Wrongful zoning does not amount to a taking or damaging of real property because its effect on the property is provisional and reversible. Wrongful zoning is merely improper classification, and by court order plaintiffs can have their property restored to the classification to which it is entitled. (Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 125, 128, 109 Cal.Rptr. 799, 514 P.2d 111.)
The Supreme Court in State of California v. Superior Court (Veta Co.), 12 Cal.3d 237, 115 Cal.Rptr. 497, 524 P.2d 1281, recently reaffirmed the principle that inverse condemnation is not a proper remedy for wrongful governmental limitation on the use of private property. There, landowners sued the Coastal Commission for damages in inverse condemnation because of the denial of a building permit. The court held that inverse condemnation was not available to the landowners for the reason that no taking or damaging of their property had occurred. The court cited with approval Candlestick Properties, Inc. v. San Francisco Bay Conservation Etc. Com., 11 Cal.App.3d 557, 571, 89 Cal.Rptr. 897, and other cases, which have sustained demurrers in comparable inverse condemnation actions. In another recent case, Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 119-120, 128, 109 Cal.Rptr. 799, 514 P.2d 111, the Supreme Court likewise rejected inverse condemnation claims, this time based on city and county adoption of a general plan of land development and on city denial of a building permit. The court concluded there had been no taking, no invasion, and no appropriation of property. With respect to the adoption of a general plan the court said: "The adoption of a general plan is several leagues short of a firm declaration of an intention to condemn property.... In order to state a cause of action for inverse condemnation, there must be an invasion or an appropriation of some valuable property right which the landowner possesses and the invasion or appropriation must directly and specially affect the landowner [116 Cal.Rptr. 446] to his injury." (pp. 119-120, 109 Cal.Rptr. p. 805, 515 P.2d p. 117.) And with respect to the denial of a building permit the court reached a similar conclusion. (p. 128, 109 Cal.Rptr. 799, 514 P.2d 111.)
Other cases have consistently applied the same principle and pointed out the necessity for an actual taking, invasion, occupation, or appropriation of the landowners' property. (Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d 515, 522, 20 Cal.Rptr. 638, 370 P.2d 342; Gisler v. County of Madera, 38 Cal.App.3d 303, 308-309, 112 Cal.Rptr. 919; Morse v. County of San Luis Obispo, 247 Cal.App.2d 600, 602-603, 55 Cal.Rptr. 710; Smith v. County of Santa Barbara, 243 Cal.App.2d 126, 129-131, 52 Cal.Rptr. 292.) Rezoning does not involve such a taking, because at a later time the property may be rezoned again, either by the zoning authority itself or by court mandate. Indeed, the zoning on a particular property may change a half-dozen times before any actual taking or damage to property occurs.
The rule of inverse condemnation sought by plaintiffs would place all zoning authority in a position of rezoning at the financial peril of their communities, for a landowner whose property had assertedly been made less valuable by rezoning could exercise a put against the zoning authority. Developers stuck with projects they could not finance or projects that had soured in changing market conditions could seize upon zoning as an excuse to unload their properties on the public. The present cases suggest such possibilities, for during the five-year period from 1966 to 1971 plaintiffs did nothing to develop their projected shopping center. In the present real estate market it may be that plaintiffs would be delighted to unload their surplus real property on the City of Cerritos.
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.