Urban Lawyer

The Nasty, Brutish, and Short Life of Agins v. City of Tiburon

by Gideon Kanner & Michael M. Berger
U.S. Supreme Court

U.S. Supreme Court

Gideon Kanner is Professor Emeritus at the Loyola of Los Angeles Law School. He briefed and argued Agins v. City of Tiburon, 447 U.S. 255 (1980) (Agins II) in the U.S. Supreme Court, which had affirmed Agins v. City of Tiburon, 598 P.2d 25 (Cal. 1979) (Agins I) on grounds other than those relied on by the California Supreme Court. Michael M. Berger is a Partner at Manatt, Phelps & Phillips and Adjunct Professor of Law, Washington University in St. Louis. He briefed and argued First English Evangelical Lutheran Church of Glendale, v. County of  Los Angeles, 482 U.S. 304 (1987), which expressly overruled the  California Supreme Court’s decision in Agins I.

Each of the authors has spent a half-century as an appellate lawyer mostly representing property owners in direct and inverse condemnation cases and related land use litigation at all levels and in courts throughout the country.  

Oh, the grand old Duke of York,
He had ten thousand men;
He marched them up to the top of the hill,
And he marched them down again.

And when they were up, they were up,
And when they were down, they were down.
And when they were only half-way up,
They were neither up nor down.1

If the Duke of York’s men thought they were being made to perform useless, repetitive tasks to no worthwhile end, they were in about the same condition as the American lawyers who were practicing takings law in the 1970s and 1980s. During that period of time, hordes of lawyers representing the competing sides in regulatory taking cases were sent, figuratively, charging up the hill to the Supreme Court (which, to make the analogy complete, sits on top of Capitol Hill in Washington, D.C.) in an effort to do intellectual battle over the issue of remedies in regulatory taking cases. That issue was whether such takings call for constitutionally mandated “just compensation” as specified in the Fifth Amendment, or only for judicial invalidation of the constitutionally overreaching regulation.But instead of answering this straightforward question, which by then had been repeatedly decided by the U.S. Supreme Court (of which, more presently) but nevertheless was then dividing courts, academics, and advocates throughout the country, the court became bogged down in the question of when — if ever — such cases become ripe for litigation. In four successive cases, the Supreme Court granted certiorari or noted probable jurisdiction, ostensibly to decide the remedies issue, but instead found either a lack of ripeness or a lack of finality, rendering it unable to reach the merits of the issue of remedies. Or so it said.3

Finally, in 1987, the Supreme Court did reach the issue (in a case that was no more ripe than its predecessors).4 But between 1980 and 1987, the legal combatants in these cases found themselves “neither up nor down,” trudging up and then back down the hill, intellectually bloodied but without any definitive guidance on the contentious — and critical — question of the remedy, if any, for a regulatory taking.5

Agins Chronology

  • 1979 — California Supreme Court abrogates the availability of inverse condemnation and payment of just compensation as a remedy for uncompensated regulatory takings, and relegates aggrieved property owners to seeking a writ of mandate invalidating the regulation as the sole remedy. Agins v. City of Tiburon (Agins I), 598 P.2d 35 (1979).
  • 1980 — U.S. Supreme Court affirms, but on grounds of lack of ripeness (failure to seek construction permit before suing), without reaching or addressing the issue of remedies. Agins v. City of Tiburon (Agins II), 447 U.S. 255 (1980).
  • 1987 — U.S. Supreme Court reaches the merits of the taking remedies issue, in First English Evangelical etc. Church v. County of Los Angeles, 482 U.S. 304 (1987), overrules Agins I, and reaffirms the rule that just compensation is the sole remedy for regulatory takings, the same as for other takings.
  • 2005 — In Lingle v. Chevron, 544 U.S. 528 (2005), U.S. Supreme Court overrules its own Agins II takings test, concluding that its analysis had erroneously confused substantive due process and takings law.

In the end, the Court came to its senses and reaffirmed its preexisting holding that the payment of just compensation is the proper, indeed, the sole remedy,6 which had been black letter law all along and could have been applied all along, thus sparing us close to a half-dozen “marches up and down the hill.”7 This was the mad, mad, mad litigational world begat by the California Supreme Court’s erroneous decision in Agins I.

The problem with the Agins II litigation (aside from its short-lived erroneous affirmance of Agins I, to which we will get presently), and its out-of-the-blue creation of a new takings test8 without mentioning the pre-existing “polestar” three-element Penn Central test (which had been created by the U.S. Supreme Court only two years earlier and is not even cited in Agins II), was that, in disregard of prior law,9 it provided the seed for a series of inconclusive U.S. Supreme Court ripeness opinions that, instead of clarifying the contentious issue of remedies, only confounded it by enmeshing it in a series of ripeness cases10 so that eventually the court had to overrule both the California holding in Agins I as well as its own Agins II takings test, realizing that the latter had been based on an entirely wrong doctrinal basis.11 Agins thus achieved the dubious distinction of having been overruled not once but twice by the U.S. Supreme Court.

It was only after seven years of wasteful, ruinously costly, and inconclusive litigation that the Court came to its senses and addressed the issue of remedies on the merits in First English. What made this judicial performance bizarre was the fact that by then the issue of remedies for uncompensated takings had already been decided twice — once in 1932,12 and once again in 198413 — for physical and regulatory takings, respectively.

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