Pinheiro v. County of Marin

Opinion

CALDECOTT, P. J. The Pinheiros appeal from a judgment of dismissal entered, in favor of respondent County of Marin, following the granting of a demurrer without leave to amend.

Appellants contend that their complaint states a viable cause of action in inverse condemnation. They argue that the rezoning of their property was for the purpose of acquiring open space at no cost to the county, and that the effect of the ordinance was the taking of an interest in the property as open space, for which compensation is due.

Appellants acknowledge that a mere reduction in the value of property resulting from a down-zoning ordinance does not create a compensable injury, and inverse condemnation therefore does not lie in such situations. (HFH, Ltd. v. Superior Court, 15 Cal.3d 508 [125 Cal.Rptr. 365, 542 P.2d 237].) Appellants do not allege that their property has no remaining reasonably beneficial use; rather, they claim that the property had a market value of $960,000 prior to the rezoning, and that the “interest taken” is valued at $750,000. Of course, appellants did not have, nor do they claim, any vested right in the previous zoning classification. (Morse v. County of San Luis Obispo, 247 Cal.App.2d 600 [55 Cal.Rptr. 710].) Appellants do allege that “development” of the property is “economically infeasible”; however, this allegation is not sufficient to avoid the “mere diminution in value” result of HFH, Ltd., supra. Furthermore, by their own pleadings appellants, in effect, admit that the remaining fair market value of the land is $210,000, indicating that there is a reasonably beneficial and substantial use remaining under the new zoning ordinance. (Cf. HFH, Ltd., supra, 15 Cal.3d at p. 512, fn. 2.)

Appellants urge that their complaint nonetheless states a cause of action for the “taking of an interest” in their property (presumably [326]equivalent to an open space or scenic easement) for “public purposes” without compensation. They claim that inverse condemnation lies for such a taking,1 citing HFH, Ltd., supra.

Appellants did not claim below, nor do they now assert, that the zoning ordinance was invalid.2 Nor does the complaint suggest any support for the argument, enunciated in the briefs, that the zoning created a “public use” of the property.

Appellants’ argument is focused upon the voluminous decisional law concerning the limitations on the exercise of the police power to achieve regulation of private property. The United States Supreme Court has stated: “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.” (Penna. Coal Co. v. Mahon, 260 U.S. 393, 415-416 [67 L.Ed. 322, 325-326, 43 S.Ct. 158, 28 A.L.R. 1321].)