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062788 CC Reg AgP .. ,", . . ., CITY OF SHOREWOOD REGULAR COUNCIL MEETING MONDAY, JUNE 27, 1988 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:30 P.M. AGE N D A CALL TO ORDER A. Pledge of Allegiance Gagne /: Brancel~ Mayor Rasc op .',. Haugen Stover B. Roll Call 1. APPROVAL OF MINUTES A. Regular Council Meeting - June 13, 1988 (Att.No. lA-Minutes) 2. MATTERS FROM THE FLOOR A. B. 3. COMMISSION REPORTS A. Planning Commission B. Park Commission 4. CONSENT AGENDA t.\/ V A. Public Service Agreement - South Shore Senior Center Resolution # (Att.No.4A-Letter- Resol.-Agreement) B. Adopt Park Capital Improvements Plan ~ (Att.No.4B-Memo,PCI Plan~ and Resol.) C. 1988 Sewer Maintenance Work - Payment Voucher-Visu Sewer (Att.No.4C-Invoice) Moved Second Vote 5. PRESENTATION BY JOHN BURGER -1- AGENDA - MONDAYr JUNE 27r 1988 MGE2 6. GALPIN LAKE WOODS DISCUSSION A. Water B. Permit Issuance C. Development Complaints (Att.No.6A-Staff Report) 7. SIMPLE SUBDIVISION - 2662Q W. 62nd STREET Applicant: Erna Meier Location: 26620 W. 62nd Street 8. REQUEST FOR CITY TO REZONE - 5685 HOWARDS POINT ROAD - SUSAN SANO (Att.No.8- Staff Memo) 9. REQUEST FOR STREET VACATION - LAWTONKA - SET PUBLIC HEARING Applicant:. Joe Boyer Location: Portion of Timber Lane (Att.No.9-Staff Report) 10. APPEAL NOTICE TO REMOVE- Applicant: Rannow Contracting Inc. Location: 5955 Ridge Road (Att.No.lO-Appeal Request) 11. GLEN ROAD/COUNTY ROAD #19- DRAINAGE STUDY Presentation by Jim Mahady, Minnehaha Creek Watershed District Engineer 12. VACATION OF HEARINGS Applicant: Location: UTILITIES AND DRAINAGE EASEMENTS- SET BY PUBLIC Lundgren Bros. Lot 1 & 2, Blk.- Sweetwater at Near Mountain (Att.No.12-Request) 13. STAFF REPORTS A. Attorneys Report 1. Findings of Fact - Division St. Rezoning Denial (Att.No.13A-1-Resol.) 2. Litigation - Lot 11, Radisson Inn Addn. B. Engineers Report 1. 2. -2- .. . .. AGENDA - MONDAY, JUNE 27, 1988 PAGE 3 13. STAFF REPORTS - Cont. C. Planners Report D. Administrative Report ,. Amesbury Pumphouse Expense (Att.No.13D-l-Letter from Homeowners) 2. Comparable Worth Status Report 3. Election Day Liquor Sales (Att.NO.13-D-3-Memo) 4. Discuss Finance Director Hiring Process 14. clAYOR AND COUNCIL REPORTS A. B. PAYMENT OF CLAIMS AND ADJOURMENT -3- -- _" ,.....~., ,.~... . {4!W. .. .'~r ~. 0; ... , . ,; ~ ~_......:~tt .,.. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MONDAY, JUNE 13, 1988 COUNCIL CHAMBERS 5755 COUNTRY CLUB ROAD 7:30 P.M. MINUTES CALL TO ORDER The Regular Council meeting of the Shorewood City Council was called to order at 7:30 p.m., Monday, June 13, 1988, in the Council Chambers by Mayor Rascop. PLEDGE OF ALLEGIANCE AND PRAYER Mayor Rascop opened the Regular Council meeting with the Pledge of Allegiance and a prayer. ROLL CALL Present: Mayor Rascop, Councilmembers Brancel, Haugen, Stover and Gagne. Staff Attorney Froberg, Engineer Norton, Administrator Vogt, Planner Nielsen, Clerk Kennelly. . . APPROVAL OF MINUTES Brancel moved, Gagne seconded, to approve the minutes of the Regular Council meeting of Monday, May 23, 1988, as written. Motion carried - 5 ayes. Gagne moved, Haugen seconded, to approve the minutes of the 1987 Audit Report of Tuesday, May 24, 1988, as written. Motion carried - 5 ayes. MATTERS FROM THE FLOOR Request for Donation for July 4th Fireworks Display Mark Kelly, President of the area Chamber of Commerce was present to request that the Council favorably consider the Commerce's request for funds towards the 4th of July fireworks display. The Council will respond as this item appears on this agenda. Request to Bury Electrical Cables Along W. 62nd St Gary Carlson, a developer in Chanhassen has asked the City to bury electrical cables along the North side of Cathcart Park. He offered to credit his park fees paid to Chanhassen toward the expense if Chanhassen is willing to donate the fees. Vogt did not feel the City could bury cables on the Chanhassen side of W. 62nd St. nor does the Park fund have money available to pay for this request. Vogt will discuss this request with the City of Chanhassen. -1- !If " . MINUTES - MONDAY, JUNE 13, 1988 PAGE 2 . MATTERS FROM THE FLOOR- Continued Freeman Park Complaint Dennis Snyder asked that Freeman Park be locked or closed at night to keep people from driving through the park after dark. Brancel stated that the park has been unlocked during the construction. The problem will be taken care of. AMEND CONSENT AGENDA Vogt requested that Item H - Elder Turn Street Light Request, be removed from the Consent Agenda. PLANNING COMMISSION REPORT Stover stated that the Planning Commission had hearings on seven of the items listed on tonights agenda. She will report on their recommendation as the Council addresses each item. PARK COMMISSION REPORT Commissioner Andrus reviewed the motions and recommendations made by the Park Commission. They would like the purchase and installation of a new fence along the new property line at Manor Park. They approved the bid from Western for the Manor Park building with a change in the ceiling material that could with stand less puncturing. They recommended approval of use of one of the football fields at Freeman Park by a womens soccer league. They discussed the purchase or rental of a sprinkling system for Freeman Park and the costs of the various systems, and recommended a one year rental or a rent/purchase plan. They also complimented the Public Works Department on their work done on Manor Park. They were informed that the American Legion may have funds available to donate to the park for projects. The Commission will submit a list of projects they would like done. Vogt recommended that the Commission delay additional purchases until all the bids are out on Freeman Park to determine the Parks fund balance. Brancel moved, seconded by Gagne, to authorize the purchase and installation by the Public Works for a new chain link fence to be placed at the new property line at Manor Park. Motion carried - 5 ayes. Brancel moved, seconded by Gagne, to accept the quotation from Western with a ceiling material change for the Manor Park warming house building until September or funds are available to pay for project. Motion carried - 5 ayes. -2- . . MINUTES - MONDAY, JUNE 13, 1988 PAGE 3 PARK COMMISSION REPORT - Continued Brancel moved, seconded by Gagne, to authorize a Bauer Rainboy sprinkler for one year, rent to be the purchase if desired, at a cost of $2250.00. 5 ayes. rental of a applied toward Motion carried- CONSENT AGENDA Payment of Interfund Loan for House Purchase Vogt recommended paying back the Sewer Fund from the working Capitol Fund for the house loan previously borrowed in the amount of $98,207.00. S.E. Elevated Water Storage Tank - Payment Voucher Engineer Norton recommended approval of payment of voucher #3 for Project #86-10 for the S.E. area elevated tank in the amount of $159,373.45 to CBI Na-Con, Inc.. S.E. Area Pumphouse - Payment Voucher Engineer Norton recommended approval of payment of voucher #5 for ~oject # 86-1C for work completed on the S.E. area pumphouse, in the amount of $10,981.61 to A&K Construction Inc. . Freeman Park Site Grading - Payment Voucher Engineer Norton recommended approval of payment of voucher #3 for Project #87-5 for Freeman Park site grading in the amount of $17,558.50 to Widmer Inc.. 1988 Sewer Maintenance Work - Chanqe Order Vogt has recommended that a Change Order be approved that would provide for the sealing and grouting of manholes to eliminate leakage. An estimate of $315.00 per manhole has been submitted by Visu-Sewer Clean and Seal Inc. they also estimate that 20-25 manholes will need grouting. Permanent Appointment of Joe Luqowski -3- Mr. Lugowski has completed his six month probationary period and staff has recommended that he be appointed to a perman- ent position of light equipment operator/laborer with the Public Works Department. Ratify Secretary/Receptionist Appointment Vogt recommended ratification of a probationary appointment of Anne Latter to the secretary/receptionist position. MINUTES - MONO. JUNE 13, 1988 PAGE 4 . CONSENT AGENDA - Continued City Hall Expansion - Payment Voucher Vogt recommended approval of payment voucher #6 for the City Hall Expansion project in the amount of $815.10 to Zastrow Nassett Construction Inc.. I Stover moved, seconded by Haugen, to approve the above listed items listed on the Consent Agenda. Motion carried - 5 ayes. GILLETTE CURVE STREET LIGHT DISCUSSION Council approved the installation of a street light for Gillette Curve. Vogt received a second petition after the approval, opposing the installation, and then another reapproving. He then asked N.S.P. to hold up on the installation until the petitioners could come to an agreement. Mr and Mrs Wendt have requested a delay of further action until June 27th so they can attend. Residents Robert Trick, Gary Karknoff, Marge Brooks, and Mrs Peterson spoke in favor of the installation. Haugen moved, seconded by Stover, to table further action until the June 27th meeting. Haugen withdrew motion, accepted by Stover. Haugen moved, seconded by Stover, to have N.S.P. hold off installation of the street light. Motion was denied - 5 nays. Gagne moved, seconded by Brancel, to reaffirm to Council's action to install the street light on Gillette Curve. Motion carried - 5 ayes. GALPIN LAKE WOODS - WATER DISCUSSION The staff received various methods of extending water into the Galpin Lake Woods project that would be in the best interest of the City and agreeable to the developer. Nielsen review the recommendations and explained the modifications to the current policy that would be necessary. Staff felt that if the Council wants to encourage the extension then staff suggests the following: 1. Offer to credit full $4000.00 connection charge for extraordinary costs outside the plat. 2. Separate costs of improvements inside and outside the plat. 3. Deduct the connection charge credit from total outside cost then reimburse the developer 1/13th (thirteen abutting lots) for each hookup which takes place in the next 7 years - no interest. 4. The credit plus whatever reimbursement should not exceed the total cost of water line outside the plat. Nielsen stated that there would be no reimbursement of expenses -4- . . MINUTES - MONDAY, JUNE 13, 1988 ~GE5 GALPIN LAKE WOODS - WATER DISCUSSION - Continued paid back to the developer unless residences outside the development hook up and pay for that hook up. Out of the $4000.00 hook up fee, $1000.00 would go to developer and $3000.00 would go to the City. Gagne supported maintaining the current water policy. Resident Sue Lang had the water policy clarified and how it would affect her. Haugen supports giving credit to the developer as was given to the Shorewood Oaks project, Gagne seconded for discussion. Stover would like staff to submit a proposal for Galpin Lake Woods and compare it with Shorewood Oaks. Amendment was accepted and continued to the next meeting for that information. Motion carried - 5 ayes. SOUTH FORTY ADDITION - PRELIMINARY PLAT APPROVAL RESOLUTION #53-88 Stover reported that the Planning Commission recommended approval of this preliminary plat subject to the Planner's and Engineer's recommendations. Norton stated that there were errors in the grading plan, and the fill and drainage plan still needs to be addressed. These concerns and changes can be made prior to the final plat, which must be submitted within six months. Haugen questioned the changes in the plat design from the first plan to this plan. The first plan had all the lots access onto a culdesac off of Yellowstone Trail. This plan accesses 4 lots right onto Yellow- stone Trail. Norton would like building site plans submitted with the revised grading plan. Stover moved, seconded by Gagne, to approve the preliminary plat subject to the planner's and engineer's recommendations and to include a revised grading plan showing all building pads and joint driveway use. Motion carried - 5 ayes by roll call vote. GWK SECOND ADDITION - PRELIMINARY PLAT AND FINAL PLAT APPROVAL RESOLUTION #54-88 Tom Wickenheiser was present to resubmit his request for pre- liminary and final plat approval. He stated that he was not aware of the six month deadline to submit his final plat. He also questioned why there was assessment levied against the Outlot that he is now subdividing. Clerk Kennelly explained that the equalization was assessed at the same time as the first addition was platted and the preliminary plat for the second addition was submitted. The assessments can be removed at this time due to the delay and resubmittal of the final plat and reassigned when this second addition is finalized. Stover moved, seconded by Haugen, to approve the preliminary and -5- . MINUTES - MONDAY, JUNE 13, 1988 nGE6 . GWK SECOND ADDITION - PRELIMINARY PLAT AND FINAL PLAT APPROVAL RESOLUTION #54-88 Continued and final plat subject to staff recommendations and appropriate' special assessments assigned. Motion carried - 5 ayes - Roll Call Vote. Division Street Rezoninq Denial Nielsen stated that the rezoning request was initiated by a petition signed by 13 residents of Division Street, two have asked to be removed from the petition. The petition resulted from one residents' request to build a garage on a property that was non-conforming due to the existence of a two family use of the house. Nielsen stated that three other homes on that street have two family use. He reviewed his report and indicated that two large tracts of land would not be included because they were land locked. There are six existing homes ~hat could be increased to double usage if rezoned. The Assessor has stated that the valuations and taxes would not change due to rezoning. Stover stated that the Planning Commission held the public hear- ing and returned with a split vote (3 to 3). Those opposed felt the percentage of people benefitting was too small as was the area proposed for rezoning. Those in favor felt that it better reflected the current use and would add additional controls. Many area residents, from both Excelsior and Shorewood, spoke in opposition to the rezoning stating concerns of added conjestion, traffic flows,adverse affect on neighbors and valuation. Mr will Johnson felt the garage permit should be granted under a hardship but did not think rezoning was appropriate. There was concern that the two large tracts of property could have a large impact if developed as doubles on the area. Nielsen stated that they were not to be included and a 50 foot easement would be needed for access. The property also has a lot of wetlands that wouldn't be included as buildable. A neighbor asked if the garage permit could be issued if all the neighbors agreed. Stover stated that the Ordinance would have to be amended to allow the construction. Mr Thompson stated that flhe'needs the garage to enclose his juhk". Haugen moved to approve rezoning the area to R2A and to amend the Zoning Ordinance accordingly. Haugen then withdrew her motion. Stover stated that only 50% of the residents signed the petition. -6- MINUTES - MON~, JUNE 13, 1988 ~GE7 . Division Street Rezoning Denial - Continued Brancel moved to deny the application for rezoning and to direct the attorney to draft findings of fact to be returned to the Council, Stover seconded the motion. Motion carried - 5 ayes by Roll Call Vote. 22570 Murray Street - Simple Subdivision and Access Variance Resolution #55-88 Mike Spear of 22570 Murray Street was present to request a simple subdivision and access variance in order to divide his property at 22570 Murray Street into two lots, one of which will not front on a public street. He has agreed to grant a 50 foot easement for access to the back lot and to place a restrictive covenant prohibiting future division of his property. Future owners would have the right to return for further divisions under other conditions. Stover moved, seconded by Gagne, to grant the simple subdivision and access variance subject to the Planning Commission and staff recommendation with a 12 foot strip granted for road right-of-way along Murray Street. Motion carried - 5 ayes- by Roll Call Vote. Mayflower Road Addition - Preliminary Plat Approved Resolution #56-88 ML Dale Peterson was present to request a three lot division of his property at 6070 Galpin Lake Road. Stover stated that the Planning Commission recommended approval 5-1 subject to the Engineer's approval of the grading and drainage plan, watershed approval, and planner's recommendations. Norton has a meeting set with M~ Petersen's engineer and the watershed engineer. Norton suggested soil borings on the building pads. Nielsen suggested that the north line of Lot 3 be" moved 40 feet to the north. Mr Peterson was not in favor because this would encroach on the paddock. Nielsen suggested that if the line is not moved to add more buildable area to Lot 3, then, Mr Peterson should provide a building envelope for that lot. Stover moved, seconded by Brancel to approve the preliminary plat contingent upon the Engineer's recommendations, watershed approval, and an acceptable building envelope provided. Motion carried - 5 ayes - by Roll Call Vote. Strawberry Fields - Preliminary Plat Approval - Resolution #57-88 Nanci Strickland-Balogh was present to submit a new plat of eight lots in compliance with the R-lA zoning. Stover stated that the Planning Commission recommended to approve the plat. Nielsen would like Lot 5 to be readjusted to provide the necessary front footage so that a public hearing would not be needed for a variance. He stated that a shed will be removed if approved, and drainage plans will be submitted prior to final plat approval. -7- MINUTES - MOND~ JURE 13, 1988 nGE8 . Strawberry Fields - Preliminary Plat Approval - Resolution #57-88 - Continued Stover moved, seconded by Gagne, to approve the preliminary p~at of Strawberry Fields with a Lot 5 width adjustment and drainage and grading plans to be submitted prior to final plat. Motion carried - 5 ayes - by Roll Call Vote. (Council Break: 9:50 P.M. - 9:58 P.M.) 26620 W. 62nd Street - Simple Subdivision Request An application for a simple subdivision of the property at 26620 W. 62nd Street was submitted on behalf of the owner, Erna Meier. The application was signed by and paid for by the'Minnewasta Church and was being presented by its chairman. Stover stated that the Planning Commission recommended approval subject to conveyance to the City of 12 feet of road right-of-way along Church Road. Council asked Attorney Froberg if we should consider a request not signed by the owner. Froberg felt an agents' signature was acceptable. Lance Detrude objected to the subdivision, stating that he signed a purchase agreement on this property. Due to the division) conditions are being requested that he was not informed at the time he signed the purchase agreement. He requested that the Council refuse this request until this disagreement can be worked out with the owner. Mrs Meier's real estate agent, Lee Heatherington, stated that there was no misrepresentation with the subdivision and Mrs Meiers' was in favor of the division. Gagne moved, seconded by Haugen, to continue action until written authorization in the form of a formal application is received from Mrs Meier and an up to date title opinion is received. Motion carried - 4 ayes, 1 nay (Rascop). Rascop questioned which purchase agreement takes presidence. Froberg feels this as a court decision. Fireworks Donation (Budqet Amendment) A request was received from the Excelsior Chambers of Commerce to make a donation to support the 4th of July fireworks in Excelsior, and to consider future budgeting for this contribution. Council questioned whether they can contribute tax payer's money to this donation. Froberg stated it was allowable if they determined that it was for the benefit of the residents. Stover commented on other requests the Council has turned down. Haugen felt this should be an individual contribution. -8- . MINUTES - MONDAY, JUNE 13, 1988 PAGE 9 . Fireworks Donation (Budget Amendment) - Continued~~, ~~ Brancel moved, seconded by Gagne, to contributio(s to the Chamber of Commerce from the Mayor and Council fund and hope that other cities support the fireworks fund. Motion carried - 3 ayes to 2 nays (Stover and Haugen). ~.Vo t?- c- Request for City to Rezone - 5685 Howards Point Road Susan Sano of 5685 Howards Point Road has requested the City tminitiate a rezoning of her property to RIC. She understoods her property was included in the rezoning of the properties to her south when the Brentridge Development was rezoned. Nielsen suggested that the property owners at 5665 and 5675 Howards Point Road should also be contacted to see if they are also interested in rezoning. Stover moved, seconded by Haugen, to have the City apply for the rezoning of 5685 Howards Point Road. Haugen included having the planner contact the owners of 5665 and 5675 Howards Point Road to see if they were interested and to return to the Council with response. Motion carried - 5 ayes. Request for Cost Estimate of Feasibility Study for Water Extension on Ridge Road Mr Smith and Mr Zaun were present to request an estimated cost to prepare a feasibility study for a water extension for Ridge Road. Engineer Norton referred to the study that was done at the time of the Water ford feasibility study. He questioned who would pay the cost of a feasibilty study if the project did not proceed. Norton suggested that he could do it for $4000.00 cap and he will notify them when he expended" $3000.00. The Council reviewed the City water policy and the steps necessary to institute a water project and assess it. Oak Pond - Final Plat Resolution #58-88 Nielsen stated that a simple subdivision has been submitted as a plat by Vickie Stalvey of 24185 Wood Drive. He has recommend- ed approval of the final plat subject to his staff report re- commend.ation and an up to date title opinion;payment1of 'park fees, and acceptance of sewer equalization charges. -9- I . . MINUTES - MONDAY, JUNE 13, 1988 PAGE 10 oak Pond - Final Plat Resolution #58-88 - Continued Stover moved, seconded by Haugen, to approve the final plat subject to the staff report of June 9, 1988. Motion carried 5 ayes by Roll Call Vote. ATTORNEY'S REPORT Discussion of Insurance Claim Froberg stated that the grader is a legal road vehicle set by State statue. He does not feel the City was negligent in any way and does not hold any responsibilty in the claim of a broken windshield. Haugen moved, seconded by Gagne, to direct Vogt to send a letter to Mr Nelson informing him of the City's position of non payment of the claim. Motion carried - 3 ayes to 2 nays (Brancel and Rascop). Executive Session Session was called to discuss the termination of Evelyn Beck. Sprinkler Band Resolution #59-88 Froberg submitted a Resolution regulating the use of munici- pal water for sprinkling, designating it allowable on odd/ even address numbers and dates. Gagne moved, seconded by Haugen, to approve the Resolution as submitted. Motion carried - 5 ayes by RollCall Vote. Water Ordinance Recoding Resolution #60-59 The water ordinance has been recoded and needs publication. Froberg asked if the Council would like to publish the entry ordinance or summary of the changes in that ordinance. Gagne moved, seconded by Haugen, to pass a resolution authorizing publishing a sllmmftry of the water ordinance. Motion carried - 5 ayes by Roll Call Vote. Bank Transfer Authorization Resolution #61-88 Vogt recommended the Council adopt a corporate authority to authorize him to transfer funds at the Bank of Excelsior until a new finance director is appointed. -10- ~/;c 0;2- gg - Brancel moved, seconded by Gagne, to authorize Dan Vogt to make transfers and investments. Motion carried - 5 ayes by Roll Call Vote. ( ~- /1 .. / Y4~.l,LL()Jv' .. . . MINUTES - MONDAY, JUNE 13, 1988 PAGE 11 ENGINEER'S REPORT Eureka Road/Seamans Drive Drainage Problem Engineer Norton prepared a cost estimate for two types of drainage improvements for theare.~ehind Dennis Snyder's property on Eureka Road. One plan would call for a con- crete pipe extension of 500 feet toawetlandarea west ~f Eureka Road at $17,000.00, and the other would be an open ditch going into the same wetland area. for $9,200.00. Rascop moved, seconded by Stover, to submit the drainage project for the pipe installation for $17,000.00 for the 1989 proposed budget. He felt the mantenance of the open ditch would cost more in the future. Motion carried - 5 ayes. Vogt stated that easement acquisitions was not included in these estimates and will be necessary for installation. Council discussed methods of paying for future drainage pro- jects and felt that the five year Capital Improvements Plan should handle these projects. Accept Plans and Specification - 1988 Street Improvement Project and Freeman Park/Amesbury Water Extension Norton requested approval of plans and specification for the 1988 street improvement project at an estimated cost of $192,000.00. He has deleted Strawberry Lane and added Excelsior Blvd. to the original list. Gagne asked the status of the repairs to be done by Munn Blacktopping on last years project. Staff reviewed the roads and submitted a list of streets to be redone to Munn Blacktopping. Council directed that a letter be sent by registered mail, to the bonding company informing them that if Munn has not completed the repairs by August 6, 1988, the City will call on the Bond for needed repairs. Rascop requested that blacktopping Enchanted Point be included in this project. He stated that a portion of the cost could be assessed against the affected residents. Council felt that this should not be included in this years project at this late date. Haugen moved, seconded by Gagne, to accept the seal coating project for 1988 as amended and authorize the advertisement for bids to be accepted on July 11, 1988 at 11:30 A.M.- Motion carried - 5 ayes. The water extension projec~will be bid together but the cost will be separated for payments from separate funds. -11- . MINUTES - MONDAY, JUNE 13, 1988 PAGE 12 . ENGINEER'S REPORT - Continued Brancel moved, seconded by Haugen, to accept the plarsand specificatiorsand to authorize advertisement for bids to be received and opened at 11:00 A.M. on July 11, 1988 for the water extensions. Motion carried - 5 ayes. Mike Pflaum, developer of Shorewood Oaks, was present to object to the water line extensions going through his project in between lots. Norton explained the line location and the need for the lines to run between these lots. Pflaum re- quested that some of his park donations be used to restore this line area with large trees. An affected property owner also asked that a hydrant located 5' or 6' within his property line be moved as close as possible to the lot line. He also requested the plantings to prohibit that area from becoming a path way into the park. Haugen moved, seconded by Gagne, to allocate up to $2000.00 of park fees for plantings to restore the waterline extension property. Motion carried - 5 ayes. PLANNER'S REPORT Village Pump A hearing for an unlawful detainer was held and the Village Pump was to be vacated by June 12. The lower level business has an extension for two weeks. Arvidson Dock The watershed district will put a time limit on the removal of the Arvidson dock. Galpin Lake Woods A letter was received from Greg LaFra objecting to the proposed road location for Galpin Lake Woods development. This letter will be put with the Arens file. ADMINISTRATIVE REPORT Equity Sharinq Agreement Council discussed the Equity Sharing agreement to be established between the Cities in the joint powers agreement, regarding the new police department building. They reviewed various methods of pay back if Shorewood or any of the other Cities would pullout of the joint police department. After lengthy discussion, the Council would like to meet in a special meeting with the Councils' of the four Cities, the -12- Commendation to Police Officers Resolution #63-88 . . MINUTES - MONDAY, JUNE 13, 1988 PAGE 13 ADMINISTRATIVE REPORT Equity Sharing Agreement - Continued Finance Committee, and the Chief of Police to discuss the Agreement. Vogt will set up a meeting date. Easement Agreement - City of Chanhassen Chanhassen has agreed to the four items requested for Cathcart Park in exchange for the easement granted to them for the sewer line extension. Brancel will submit an agreement to the Park Commission for their review. Council authorized the signing of the easement by the Mayor and Clerk. The items are listed in a letter from the City of Chanhassen, dated May 17, 1988. Haugen moved, seconded by Rascop, to pass a resolution com- mending Officer's Cobb, Rusch and Hodgdon for their action in rescuing a youth from drowning. Motion carried - 5 ayes by Roll Call Vote. MAYORS REPORT Bids on Police Building Rascop received a letter on the bids for the proposed Police building. Vogt will supply copies to the Council. Recycling Complaint Rascop received a letter from Super-Cycle requesting the residents on Enchanted Point to have their recyclibles out to Enchanted Lane. He directed Vogt to inform Super-Cycle continue to pick up on Enchanted Point. COUNCIL REPORTS Recognition from League of Minnesota Cities The League of Minnesota Cities awarded a plaque to Shorewood in recognition of their 32 year's of participation with the League. Highway 7/County Road #19 - Intersection Liqht A meeting was held regarding the installation of a new stop light at Highway 7 and County Road #19. An agreement has been arrived at for that installation. -13- . MINUTES - MONDAY, JUNE 13, 1988 PAGE 14 . COUNCIL REPORTS - Continued Office Needs Analysis Mr Jim Schulz has offered his service to determine office needs for City Hall. Council thanked him for his offer, but felt that due to his position on the Planning Committee, it may be a difficult situation. EXECUTIVE SESSION - Beck Termination APPROVAL OF CLAIMS AND ADJOURNMENT Haugen moved, seconded by Gagne, to adjourn the Regular Council meeting of Monday, June 13, 1988, at 1:00 A.M. (June 14, 1988) subject to approval of claims for payment. Motion carried - 5 ayes. GENERAL AND LIQUOR FUNDS - Acct No. 00-00166-02 General Liquor Checks #053122-053231 $ 299,043.26 $ 63,173.56 Payroll Checklist: Checks # 202184-202213 $ 8,932.44 $ 2,921.99 Total $ 307,975.70 $ 66,095.55 RESPECTFULLY SUBMITTED, Robert Rascop, Mayor Sandra L. Kennelly City Clerk -14- ... / 'I June 27, 1988 . . MAYOR Robert Rascop COUNCI L Jan Haugen Kristi Stover Robert Gagne Barb Brancel ADMINISTRATOR Daniel J. Vogt CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236 Mr. Robert Isaacson Planning Supervisor Office of Planning and Development Development Planning Unit 822 South Third Street, Suite 310 Minneapolis, MN 55415 Dear Mr. Isaacson: As reflected in the Urban Hennepin Year XIV Statement of Objectives and Projected Use of Funds, the City of Shorewood has allocated $5,488.00 for the operation of the Southshore Senior Center. To accomplish this project, the City has entered into a Public Service Agreement with Senior Community Services. This agreement provides the City the opportunity to assign its Community Development Grant Management (i.e., project audit and grant fund reimbursement process) responsibilities to another Urban Hennepin County CDBG program cooperating unity. Pursuant to the terms of the agreement with Senior Community Services, the City requests that Hennepin County through its Office of Planning and Development directly discharge the responsibilities of the City as specified in the Public Services Agreement. It is understood that ,the County will provide the City a quarterly status report indicating utilization of the City's allocation for the activity and the balance of unexpected funds. This will substantially eliminate the duplication of effort which is inherent in the present system and provide for a more expeditious response to the needs of the Southshore Senior Center. Sincerely, CITY OF SHOREWOOD Daniel J. Vogt City Administrator DJV I a1 A Residential Community on Lake Minnetonka's South Shore /fIf ~, J . . lU:lUc Sm.v:ice ~~L Sc:Jut:b:h..-.: SEniar Citizen Q:nter '!his agreement made am entered into by am between the City of Shorewood hereinafter referred to as the "City" am Senior Cammmity Sezvices, a plblic service agen::y, hereinafter referred to as the "Agency" , WI'lNESSEnI: WHEREAS, the City is an authorized ~tirg unit in the Url>an Hermepin County Cammmity Develc:pnent Block Grant program by virtue of a joint coopera- tion agreement executed between the city am Hennepin County pn:suant to MSA 471.59, am WHEREAS, the City has allocated Year XIV Ul::Dan Hennepin COlmty Cammmity Develcprent Block Grant furrls for the purpose of supportirg the Southshore Senior citizen center adm.ini.stered by the agency, NCM '.IHEREFORE, in cx>nsideration of the Jm.Itual covenants and prani.ses contained in this Agreene1t, the parties hereto Jm.Itually agree to the follow- irg terms am cordi.tions: :r '!he city agrees to provide $ 5488 fran the Url>an Hennepin COlmty 0Jmmu- nity Developnent Block Grant to the Agency in support of the Southshore Senior citizen Center. '!he city reserves the right to assign its administrative responsibility, prrsuant to the requirements of the UJ:ban Hennepin COlmty CaDmunity Develop- ment Block Grant Prog1:am, to arrj other cooperatirg unit. :r:r '!he Agercy agrees to provide the City or its assignee: 1. A policy/mission statement definirg the Agercy's client population am rarge of services. 2. A fi.ncm::ia1 statement for the past full year. :r:r:r '!he Agercy agrees to continue am maintain cparation of the SaIthshore Senior Citizen Center as a service to adults 55 years am older in the SOOthshore area . Public Service Agl.~1l Sauthshare Senior Citizen CBlter Page 'lWo .. .. I . . J:V 'Ihe Aqercy provides assurance that it will OCIlply with: 1. Administrative reportirg requirements of the Camty. 2. Title VI of the civil Rights Act of 1964 (PlB8-352). (Norxliscrimination in program or activities zeoeiviIg federal fi.narx:ial assistance). 3. Section 109 of the Hoosirg am O::mmmi.ty Develcpnent Act of 1974 as amenied. (Nom; ~imi.nation in any p:togJ:cml or activity subject to provision of the HalA) . 4. am Circular A-l02 Attad1me.nt 0, Section 14, paragraJ;il (h) by assur- irg the grantee, federal grantor agercy, the Calptroller General of the United states or any duly authorized representative acx:::ess to all records directly pertinent to this cxmtract for the pu:tpOSe of mak:irg audit examinations, excerpts, am transcriptions. 5. am Circular A-l02 Attad1me.nt C (s), maintain all required records for a period of three years after zeoeivirg final payment. 6. am Circular A-87 "COst Principles for state am IDeal Goventment" or am Circular A-122 .,COst Principles for Non Profit", as awropri- ate. v 'Ibis Agreement is effective as of July 1, 1988, am shall continue in full force am effect until. all fun1s made available urDer this Agreement have been expen:ied in acxx>rdal're with paragrapu; I-IV, b.It no later than ~r 31, 1989. IN ~ WHEREX:>F, the parties hereto have set their han:3s am affixed their seals this day of , 19_. Upon pl:q)er execution, this Agreement will be legally valid am bi.n:lirg. SENIOR a::IfiJNI'IY SERVICES CI'lY OF STATE OF MINNESOI'A By Its Mayor '-/ Ani Its . . . . RESOLUTION NO. AUTHORIZING EXECUTION OF A PUBLIC SERVICE AGREEMENT FOR SOUTHSHORE SENIOR CENTER OPERATION WITH SENIOR COMMUNITY SERVICES AND AUTHORIZING ASSIGNMENT OF THE AGREEMENT'S ADMINISTRATIVE RESPONSIBILITIES TO HENNEPIN COUNTY WHEREAS, The City of Shorewood has executed a Joint Powers Agreement with Hennepin County, thereby agreeing to participate in a grant application under the Urban county designation provided for in the Housing and Community Development Act of 1974; and, WHEREAS, part of the authorized activity for Year XIV is the support of the operation of the Southshore Senior Center through the provider agency known as Senior Community Services; and, WHEREAS, the Community Development Block Grant program as administered through the Urban Hennepin County requires that each city funding the operation of the Southshore Senior Center with Community Development Block Grant monies must sign the Public Service Agreement with Senior Community Services; and, WHEREAS, the Public Service Agreement with Senior Community Services allows the City to authorize Hennepin County to discharge the responsibilities of the City regarding the administration of the operation of the Southshore Senior Center; BE IT RESOLVED, that the Mayor and the City Clerk are authorized to execute an Agreement with Senior Community Services for operation of the Southshore Senior Center for Year XIV of the Urban Hennepin County Community Development Block Grant program; BE IT FURTHER RESOLVED, that Hennepin County through its Office of Planning and Development be requested to directly discharge the responsibilities of the City regarding the administration of this program for Year XIV, as provided for in the Public Service Agreement. Adopted by the City Council of the City of Shorewood this day of , 1988. Attest: Robert Rascop Mayor Sandra L. Kennelly City Clerk MEMO TO: FROM: DATE: SUBJECT: . . CITY OF SHOREWOOD MAYOR Robert Rascop COUNCIL Jan Haugen Kristi Stover Robert Gagne Barb Brancel ADMINISTRATOR Daniel J. Vogt 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236 Mayor and Councilmembers Dan VO'ltJtf June 22, 1988 Five Year Capital Improvements Plan-Parks and Recreation and LAWCON Grant Applications Attached you will find an updated five year Capital Im- provements Plan (CIP) for Parks and Recreation. Said CIP is required for submittal of a LAWCON Grant application. The Park Commission along with Councilmember Barb Brancel and especially Sue Niccum should be commended for the work that they did on both the CIP and LAWCON application. It is therefore the recommendation of the Park Commission and staff to approve the updated five year Parks and Recreation CIP by adoption of the attached resolution. Approval of the CIP should also authorize submittal of a preliminary grant application for a LAWCON Grant. It is proposed to apply for a traditional grant for such improve- ments to Freeman Park as finishing the walking trails, natural areas, picnic grounds/pavilion and hockey/soccer rink. An athletic field grant will also be applied for to make such improvements to Freeman Park as a hockey/soccer rink, warming house, ballfield fencing and goal posts. You may notice some overlap of the requested improvements. This is due to the fact that only one grant will be awarded. Also, the two grant types are for the most part for different kinds of improvements. This item appears on the Consent Agenda of your June 27, 1988 meeting for your deliberation. Please contact me prior to Monday night if you have any questions. al cc: Sue Niccum Park Commission A Residential Community on Lake Minnetonka's South Shore Lj./J ~ . . RESOLUTION NO. RESOLUTION ADOPTING FIVE-YEAR PARKS AND RECREATION CAPITAL IMPROVEMENTS PROGRAM - 1988 through 1992 WHEREAS, a Parks and Recreation Capital Improvements Plan was adopted as part of report No. 7 of the Shorewood Comprehensive Plan, dated June 1980; and WHEREAS, SAID Comprehensive Plan, in its entirety, was adopted by Shorewood Resolution No. 89-84 on December 10, 1984; and WHEREAS, said Parks and Recreation Capital Improvements Plan is in need of its yearly update; and WHEREAS, the Shorewood City Staff and Park Commission formulated and recommended approval of said updated Parks and Recreation Capital Improvements Plan. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood as follows: 1. That the Parks and Recreation Capital Improvements Plan encompassing years 1988 through 1992 as recom- mended by the City Administrator and Park Commission is hereby adopted. 2. That the Parks and Recreation Capital Improvements Plan as contained in report No. 7 of the Shorewood Comprehensive Plan is hereby amended. 3. That said amended Parks and Recreation Capital Im- provements Plan be forwarded to the Metropolitan Council for review. Adopted by the City Council of the City of Shorewood this day of ,1988. ATTEST: Robert Rascop Mayor Sandra L. Kennelly City Clerk . . ;1 " ... !I !I ~I il ;1 R il ~I ~I II '" c: 0 ~ . MI "01 "I 0"""1 c.. "..... '" ~"' ~r- -en 000" ,., o. ..~ "' -tn""'::. f'" . . . . n ,.... r-r- ...n~'" -I .. ~"' -... "'- .. m.- "..~ .. . "'2 ..~. -I o,,~ .. "'~ en... "' .. r-en - .~.. 0 <.. - ...r- -I ~... c: ",0 r-< I .--.. r- .~ .. .c: 0", ,-.rn-n ,., -...... n - ~ ~. ... - en n - ~ .... 0 0 "''''-CIt . c: "' r- n ;: '" "' N "' "' en ..... 0 . "'='1'111'11 c: . ... 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N ... .. ~ .. 0 N ... ... ~ ~ ~ ~ UI 0 '" 0 0 '" '" 0 UI 0 0 0 0 0 0 0 N 0 0 0 0 0 0 0 .... - - - - - - ... ." ." ... ... ... ." ... ... . ... ... -... ... .... .... .... .... .... ....... .... - - - - - ....- - ... ... ... ... n .. n .... .... .... .... .... .... .... . . JUN 2 0 1988 ~ VISU-SEWERCLEAN & SEAL, INC. N59 W1 4397 Bobolink Ave., Menomonee Falls. Wisconsin 53051, [414) 252-3203 .I N V 0 ICE DATE: May 31, 1938 JOB: 88205 INVOICE ~4837 CUSTOMER #50100 City of Shorewood 5755 Country Club Rd. Shorewood, MN 55331 RE: May invoice for 1988 Sanitary Sewer Maintenance S ?al 9" Joints QUANTITY UNIT PRICE COST 2,353 .85/ft $2,000.05 254 9.20 2,336.80 12 2.50 30.00 11 100.00 1,100.00 ITEM Cleaning & TV Inspection Test 9" Joints HH Inspection Total amount due $5,466.85 TERMS: Due upon receipt of invoice A service charge of 1 1/2% per month may be charged on all past due accounts. member' of 8 Serving-Municipalities, l.)tilitiesand Industry CITY OF SHOREWOiOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 MAYOR RObert Rascop COUNC'L Jan Haugen Kristi Stover Robert G~ Barb Sraneel ADMINISTRATOR Daniel J. VOgt MEMORANDUM TO: MA.YOR AND CITY COUNCIL FROM: BRAD NIELSEN. DAN VOGT. GLENN FROBERG. JIM NORTON DA.TE: 23 JUNE 1988 RE: GALPIN LAKE WOODS - WATER DISCUSSION FILE NO.: 405 (8~.41) At. thel3. June. Council meeting. the staff presented a verbal rec.ollUDendation relative to Jeff Schoenwetter's request for certain considerations relative to installation. ola \tater line along Apple Road and Brackett's Road (see his letter. dated 20 May 1988 - att.ached). The developer asked the City to consider five items. Following is the staff's recolllmendation fol;'. each. 1. The staff does not recommend any change in the City's current policy. If water is installed. concrete curbartd gutter should be required. 2. See No. 3. and 4. belOtl. 3. &4. If the> City feels that extension of the water line benefits the City and wishes to encourage the expansion of the Woodhaven II water system. the staff recollJ1nends the following: a. Offer to cre,dit the developer the full $4000 connection charge for each lot for extraordinary costs outside the plat. (Current policy allows up to $2000 credit.) b. Separatecost.s of. improvements inside and ou,tside the plat. c. Deduct the connection charge credit from the total outside cost. then reimburse the developer l/13th (13 lots abut the proposed water line) of the remaining figure for each hookup which occurs during the next seven years. Reimbursement will be a flat figure with no interest added. \ '-I ottD C-tJ--p. I &1Yf) fL-,-" LiI'J. d. The connectiotl charge credit plus the reimbursement referenced in c. above should not exceed the total cost of the water line outside the plat A Residential Community on Lake Minnetonka's South Shore (, I l \. \ JMS . . FILE COpy MI\Y 2 3 \988 SCHOEN WETTER COMPANIES 5353 Gamble Drive ParkJ:1J.: IV /1307 Minneapolis, MN 55416 b 12 5'J I-19M I May 20, 1988 Mr. Brad Nielson CITY OF SHOREWOOD 5755 Country Club Road Shorewood, MN 55331 Re: Galpin Lake Woods Dear Mr. Nielson: Pursuant to our recent conversation regarding the above referenced development, we are yet contemplating installation of city water. However, time is of the essence. Our concerns with installation of public water versus private wells is simply cost. At this time, the economic value of this water improvement cannot be justified and we fear that this contem- plated request may, as have previous issues, offer signifi- cantly difficult hurdles and decisions will be protracted by unrelated issues. I would appreciate a "quick fix", thus both you and I will know where we stand. We estimate cost(s) associated with installation of water to this development at upwards of $70,000. If the city could see a way to the following concessions, I would be inclined to pursue these improvements: 1) Waive the requirement for concrete curbs at Galpin Lake Woods. 2) Reimburse developer within one (1) year for the fire hydrants installed outside of the development (approximately four (4)). 3) Waive the hook up fees due city $2-4,000 per lot for water; and we, as developer, would waive any credits due for hook up on lots with~development. JMS Equiticsl Schocnhall Ltd. I Prima Properties Schana Investmcnts I Park Pla~c Partnership I Schoenland Partnerli , " . . . ... Page Two May 20, 1988 Re: Galpin Lake Woods 4) Establish an equitable reimbursement arrangement for developer and city to run for 10-15 years This would partially reimburse or credit developer for some of the extraordinary expense contemplated herein. This "agreement" should give consideration to: a) capacity of new line, b) number of potential future hook ups or users, c) oversizing expense. 5) Permit developer and developers lender to enter into an "alternative security agreement" with city in lieu of a letter of credit for improvements associated with Galpin Lake Woods. I am certain that the future tax value of Galpin Lake Woods, as well as surrounding neighborhoods, would be sub- stantially enhanced by the city and developer working as a "team" on this issue. I know the safety, fire and health benefits precede this request. Sincerely, ~ J~hho~tter President <=- ~ JMS EQUITIES, INC. JMS/rn -' I' ~( j/aJfu; ~ ~/~tUeLld '(Ub'~ 1Lw~ ;?1~~s I~~/, L~ tlb~..:t. 1~ M . ... c 0m ~ cuq~/ i- g/3 ~~tU t1JA-~ A J I, \ ~ ~dv.eLX- (/K-/ ~~ ,-- ~~ ru:J ~~~~. ~ LETTER OF AGREEMENT _Or. 'i..i , I " To: Whom It May Concern Date: ~.' ,- .,' Re: October 14, 1980 ~ '~'" ~hi".i"1>"'.i'~,."".""""," Proposed '~in,}'J;:l.K~W()9,~sJ~" a Single Family Subdivision Consisting 0 I~ lt~~M(!!rri~ g: Lots Lying Westerly of Apple Road on Bracketts Road in Shorewood, Minnesota It is understood and agreed to by the undersigned that it is the intention of the undersigned property owners as designated by their signatures and respective addresses to dedicate to the City of Shorewood a portion of the respective properties e qJ Pl!,Qltc;.ro;:l.d'!Va~ This dedication is contingen up ing lerms ana conait10ns to which the undersigned agree to do the best of their efforts and in a prompt and timely fashion: , 1. It is understood that the portion to be dedicated to the City of Shorewood of each party's respective property is to be determined by a surveyor's measurement of the land that lies southerly of a line (shown in green on the attached Exhibit "A") and which is parallel (and ' northerly) to the northerly edge of the existing asphalt surface (see attached Exhibit "A"). [It is understood that part or all of this area is already governed by an easement in favor of Shorewood for sanitary sewer. Surveyor's expense and deed preparation is Halley Land Corporation's responsibility. 2. It is agreed by the undersigned that the undersigned shall promptly submit to the City of Shorewood's Attorney, Frank Kelly, their individual property abstracts of title extended to date. It is understood by all p~ties hereto the Mr. Kelly's opinion of satisfactory title is necessary to this agreement. 3.' It is acknowledged by the undersigned that the undersigned' wish to make this dedication to the City of Shorewood providing that the City of Shorewood agrees that the following stipulations will govern the improvement or upgrading of the roadway to which each party is hereby agreeing to dedicate: ! , I ;.!. 4. It is agreed to by the Halley Land Corporation' that the expenses ,incurred as a result of #3 above shall be borne by the Halley Land Corporation, the developer of "Galpin Lake Woods." '\.i,. ;'.~:",,~....,'.':, { '.1 ;1 ...1 -I '\ l 1 I I r :~ tI1 t i I i I I , . I 1 ~ I ; ..... <\. ',j ~ ,"'.." ":-<<;,,:-,'-',i . "I ':,:",,<t',;:;::',,:\;',.'cf_- ...~__';,." ~i ,..,( ,..,'.",Al.'..,., ..,..,.,,~',...,' '; '._ " J \.' i ...,.~ I, ! \. Letter of Agreement October 14, 1980 Page Two 5. It is understood that in consideration of the dedication, Halley Land Corporation agrees to pay to the party or parties representing each property as outlined on the attached Exhibit "B" in green, red and blue, a sum of $3,000 (i.e. to the red property, $3,000 total to be payable to Robert Hoban and Donna Hoban). 6. The payment as outlined in paragraph 5 above shall be due and payable in cash upon the successful completion of both of the following items: . - Final plat of "Galpin Lake Woods" approved and filed at. the offices of Hennepin County. Ci ty of Shorewood' sat torney's uncondi t-ional acceptance of and recording of the pertinent deeds of dedication to the City of Shorewood. 7. It is expressly understood and agreed that the following conditions are wholly and successfully pertinent to this Agreement. a) b) a) The money as outlined in paragraph 5 above is in consideration for property rights that it is believed the undersigned own and ppssess without title defect; and, therefore, can grant by warranty deed such dedica- ;~~:p~~~~~e City of Shorewood witho~t encumbrance or ~....... That such dedication is deemed to be pertinent with- .~. out question and acceptable to the City of Shorewood as the sole access route and right of way to "Galpin Lake Woods." c) That an unrelated party to this agreement, St. John the Baptist Catholic Church completes its dedication and that the City of Shorewood finds acceptable that St. John's lands are an acceptable dedication to "complete" the necessary 50' in width of right of way stipulated by the City of Shorewood' zoning ordinance. d) The City of Shorewood's refusal to accept or to accept on "condition of" to a matter not governed by or "addressed to" by this Agreement. . It is a.lso expressly understood that the Halley .Land Corpoation will continue to sponsor as public access, an alternative right of way, which is outlined in yellow on the attached Exhibit "A," to "Galpin Lake Woods" to which St. John's may provide, if required to, by the Halley Land Corporation. Therefore, it is exressly understood that in the event this Agreement should for any reason become null and void that the Halley Land Corporation is under no obligation neither expressed nor implied to the undersigned. It is understood and agreed that the undersi ned have reviewed the plat of "Galpin Lake Woods" drawn by an, 1e d & NowaK and dated August 21, 1980. The undersigned agrees t at tey not oppose said development nor to use this Agreement as a " to argue against the proposed development. 10. It iR understood th~t Halley Land Corporation is under no obli~ gations for expenses, etc. that are not stated explicitly in this Agreement. Since it'is impossible at this time to determine whether of Shorewood wishes that Mr. Haumptman (his property is in blue on the attached Exhibit "B".> would make a dedication ~ portion of his property to the City of Shorewood, it is agreed ? that if the City of Shorewood determines and stipulates that the ~ new blacktop surface for such a roadway shall cover and follow the "route" of the existing gravel driveway (as shown in brown ~tt~ ~S+- ~~ ( ~" .~/o/&Y~.......,..... ~;#L/{Psff?8'~ J. Juvv~~(lj!" 1~ -:q yb~f:t ~~ SJUV J-r . will indicate his participation and involvement in this Agreemeri~ However, if Mr. Haumptman's signature space is written in with "Denied by him October 14, 1980" or if the City of Shorewood determines that the new roadway's-asphalt < ;Lrcumvent J1r. Haumptman I s Pro ert then. r. aumptman ac w e ges u that he is not a party to this Agreement and her~by acknowledges that this Agreement is null and void between himself and the Halley Land Corporation. J .I 4' . 12. This Agreement shall expire on October 15, 1981, unless acted upon prior to that date. Note Below: Signature or write-in: "Denied by him, October 14, 1980." Signatures above of all partie in ownership to the "green" property as shown on Exhib~t "B" and referred to as the; "Pedersen" property. To this we agree: alley Land Corporation, Developer Michael A. Halley Its: President . Signatures above of all parties in ownership to the "blue" property . as shown on Exhibit "B" and referred to as the "Haumptman" property. Signatures above of'all parties in ownership to the "red" property as shown on Exhibit "B~.;;, and referred to as the "Hoban", property. ~I~-'--AGE OF EXCELSIOR VILLAGE OF SHOREWOOO s .&iL C) ',t 122 Blu.e. =/ flo.u'rY'Ip+rnatJ p....Ope.r+y. Re.d.a ! l-lobo,hJ . pt'<)fer+l _ _Gt~ =~ Pederse..:. p~Oper\y ~<Q I \,) C:j j;! ~l 125 -- . CUL~~()~ It \. tJA AJnp .17;;1 f J'--P---~Ci' ' r f f I I " ~~ ;/: ~~ \ , , , '-..---'" - . . ! I ,. , ,1, ~ / ~,' ~. :~.... .."", . ~, ~:'Q t{ ? ~? ~ l~':" '\;I t LL-~ ~ " (;;:;;:~> I "e p. Z; S:-(Q ~ (l) (' CP -+ ~ .ca :.+- :..-' (6:r <:" -0:1= " ~3 f" p 0 0 I Q.... P P"1 ~ .rh =' :. ;) o " ~ + t.P (/I -I- ~ =' = P- 0 j s: ;:rr...-J-o-o P' ~ it. ;r.... S) r5' 0- -g., P 16' ~ t. -; p'< It #= '..( :~:--<' ~ if (\ ,~ ......~ ~_J1J ~ ...~ v ~ 1 t)' _, -- . .p (A '9.t-i" ',f-.:s .'1).' '0 1-0. I." . -.' . ~~(b:z:. () '-",. ~ 0 r: VI v-= '" '. (\ .Lfh ...;:........ 1\ ..,.- (" :r'.' -4- -. It o Z. ~ . " ,,--, '"'O~ 0'< '! ..r:> III ....'. ~. ,-:,-_:~<-/<;' Re: Gal pin Lake Woods Preliminary Plat 21 August 1981 E. Lake Access. A 20 foot access easement to Galpin Lake is proposed between Lots 5 and 6. PresumeabIy this is for use by the owner& of nonriparian lots in the plat. While this is not neceslarily viewed problem. the developer should elaborate on what activities will be allowed on the easement. ... " REC<HmNDATION " Based upon the preceding. the preliminary plat for Galpin Lake. Woods is considered to be consistent with Shorewood's zoning regulations aDd the Comprehensive Plan. It is therefore recommended that the plat be approved subject to the following: 1. The lot width variance for Lot 12 is contingent upon the access easement being widened to at least 26 feet. with a minimum 16 foot driveway. 6. Once all of the necessary information has been submitte4 for tbe fin,l plat (no later than six months after preliminary plat approval). the staff will prepare a standard development agreemen~' between the developer and t,pe Ci ty. \ Bd1;p~'G~ ~ k.eqf~ ~ ~.4~'4"" cc: Dan Vogt Glenn Froberg Jim Norton Jeffrey Schoenwetter 2. The applicant's plans for the proposed street should include eat.ndin, Brackett's Road up to the subject property. 3. The landscaped cente! islands should be eliminated. 4. Grading. drainage and utilities should be subject to the recommendations of the City Engineer. Grading and drainage are also subject to review by the Minnehaha Creek Watershed District. rl:~ ,if. ~~ LN-i/.. . Park dedication 1hovl~~e subJee\~te~h~eeommen4atiQR Qf tbA p.~k_ Gomm-i.~R. 5. . - 3 - . . CITY OF SHOREWOOD MAYOR Robert Rascop COUNCI L Jan Haugen Kristi Stover Robert Gagne Barb Brancel ADMINISTRATOR Daniel J. Vogt 5755 COUNTRY CLUB ROAD . SHOREWOOD. MINNESOTA 55331 · (612) 474-3236 20 June 1988 Mr. Richard Gaye 5675 Howard's Point Road Shorewood. MN 55331 Mr. Daryl Anders on 5665 Howard's Point Road Shorewood. MN 55331 Gentlemen: As you may be aware. the Brentridge property located to the south of yours and several lots along Howard's Point Road were recently approved for rezoning from R-LA. Single-family Residential to R-1C. Single-family Residential. A neighbor of yours. Ms. Susan Sano. has requested that the R-1C zoning be extended northward to include her property. located at 5685 Howard's Point Road. Prior to setting a date for a public hearing. the Council agreed that the owners of property located immediately to the east of Ms. Sano's should be asked if they also want their property considered for R-1C zoning. Following are the requirements for the existing R-1A zoning and the requested R-1C zoning. Existing R-1A Requested R-lC Lot area Lot width Lot depth Front setback Rear setback Side setback Side setback abutting a street 40.000 sq. ft. 120 ft. 150 ft. 50 ft. 50 ft. 10 ft. 50 ft. 20.000 sq. ft. 100 ft. 120 ft. 35 ft. 40 ft. 10 ft. 35 ft. While there is some question whether either of your properties could be divided to create additional lots (due to insufficient width and access). the reduced setbacks of the R-1C zoning would provide you with additional flexibility relative to the placement of accessory structures. future additions. etc. A Residential Community on Lake Minnetonka's South Shore g " . . Richard Gaye Daryl Anderson 20 June 1988 page two To make it as simple as possible for you to respond. we are sending you an extra copy of this letter to indicate whether you are interested in having your property included in the consideration for rezoning. Please just check the appropriate box and sign below. A stamped return envelope is enclosed for your use. If you have any questions. please do not hesitate to contact my office. Sincerely. CITY OF SHOREWOOD ~~p~ ~radley ~~sen City Planner/Building Official cc: Mayor and City Council Dan Vogt Glenn Froberg Susan Sano I:' I would like my property considered for rezoning. I_I I am not interested in having my property considered for rezoning. Richard Gaye Daryl Anderson ~ , . . MAYOR Robert Raseop COUNCI L Jan Haugen Kristi Stover Robert GlIgne Barb Brancel ADMINISTRATOR Daniel J. Vogt , CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474.3236 MEMORANDUM TO: MAYOR AND CI'lY COUNCIL FROM: BRAD NIELSEN DATE: 23 JUNEl988 RE: LAWTON.<A .... REQUEST FOR STREET VACATION FILE NO.: 405 (88.01) In preparing their fi.nal plat for Lalil7tonka. the developer's surveyor's discovered two small pieces of landlocked right-of-way located on the penninsula liI7hich will be platted as Outlots .A and B. In order to clean up the plat and limit the tlUlllber Qf outlots to two. they have requested that the City vacate these parcels. The parcels are shown on Exhibit A. at:tached. You may recall that the developer agreed to grant a right-of-way easement over Outlot C. He has also offered to dedicate a small parcel of land on the north side of Timber Lane to further simplify the plat and provide the City with a full 60 feet of r04Qway easement. t};le side~ of which will be parallel. Kequests for street vacation require that the Council set a date for a public hearing. Assuming the Council agrees the hearing would be conducted on 19 July (the notice must be pub~ished in the paper tlil7ice). BJN : ph cc: Dan Vogt Glenn Froberg Jim Norton Joe Boyer .Larry HansQn A Residtmtia/ Community on Lake Minnetonka's South Shore q . (f'j .M. > ... L":i OJ :-J ('~ .' , ! '- - rt) n) " ~ O~ 'oJ<.. (A. 0 O.c. ~f .... ~ " 0 u ..r" ~--. 1 .t. fD ~lU ~ 1-.1 ~ :.~ ,0 rJ)r/ L.. :/,.' . . - . . " ...r: ~(t) ~ o~ u f~ ;nCO 5.~ _\ oJ;. 0 ~ 0\' q, ....a ". (- ~, 't' ~f' ,,~ ~", !~c3 . . ~~ s~ ~ .~ ~:g -~ c- .'", \..' .... ~ ~ :2 ,.-, .;.1 I . cr.: c.~. II) i-- i(; .-- ..- I ,..!J ,...... I..... [" \ ..... ........ CO:..- , .~ 4.l.. ~.- '< ....../ Property To Be Deeded To Cit~ . DESCRIPTION FOR: . ~ BOYER & SONS Prepared By: SCHOELL & MADSON. INC. Englnee,.. Suneyo,.. Planne,. . Soli, Te.tlng 10550 Wayza.. Boul.vard Mlnnetonka. Mn. 553<43 Tel. 5<40-7601 All of Block 2. "Excelsior Park" according to the recorded plat thereof. That part of Lafayette Avenue (now called Timber Lane) lying south of a line parallel with and 60 feet Northerly of the Northerl~'line of the right-of-way of the Chicago and Northwestern Ra11road between the Southerly extensions of the West line of Linden Avenue and the Southerly extension of the following described Hne: COII1l1enc1ng at a point in the Southerly line of Lot 3. Block 1. "Excelsior Park", said pOint be1ngd1stant 12.1 feet from the Southwest corner of said Lot 3 measured along said line; thence Northeasterly through a point in the Southerly line of Lot 2 of said Block 1 distant 7.5 feet Southeasterly from the" Southwesterly corner of said Lot 2 measured along the Southerly line thereof to the Southerly shore of Lake M1nnetonka, according to the plat thereof. Property To Be Vacated . The alley in Block 1, "Excelsior Park" according to 'the recorded Plat thereof. That part of Timber Lane (formerly known as linden Avenue) as dedicated in the recorded plat of "Excel s10r Park". which lies northerly of a Hne 60.00 feet northerly of, measured at a right angle to and parallel with the northerly'r1.ght- of-way Hne of the Hennepin County Regional Ra11way Authority (fonnerly known as M1 nneapo lis and St. Lou1 s Ra il road Co.) - Date: June 3, 1988 ~~',bt,t e> . . d~. ~/V~a:/ . &#d 4-- JP.3:5"~' ';#d ~n/#/~ ~r-~ ~-://7;Jfif/-t!fd9 ~ -/7-# tt!e///" ~ 41 ..ed~a~ .;4b?? 4" ?" ~~P.u/ ~~f ~ /dIL~ ~%aLddl/~~~ k~#?~ /.4- ~M -' ~~ d7~ ~ /kdJ #~j? 'i'f ~dd- ed~j/4~~: ~~z?~ tU/Ud t1'~~ a ~ ~ A~ /#L d80 ~~j:.~ 4~~ ~~~~ 4'# ?!t.:f//; /$/ Au>>ef~ ~ ~ ~ r/"/ . ?d ttUd&'~ ~~ #~ ~~ ~.~.~ ~. .-.~ .td. /' ~ .,.?~ /J W 't'7' -fI~r/dr~~~~' -%,~/7.!aJ ~.Q;'~ J~. -It) 9 June 1988 . .tlLk GUPY MAYOR I Robert Rascop I- . COUNCI L Jan Haugen Kri.sti Stover Robert Gagne Barb Brancel ADMINISTRA TOR Daniel J. Vogt '. CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 . (612) 474-3236 Mr. Kenneth Rannow 8217 Hiawatha Circle Eden Prairie. MN 55344 Re: Erosion Control and Fire Damage Debris - 5955 Ridge Road Dear Mr. Rannow: Several times in the past two months I have requested that you install erosion control barriers at the bottom of slopes which have been disturbed during construction at the above-referenced site. Of particular concern is the steep slope which exists on the south side of the driveway. These verbal communications have not proven to be effective. and as of this writing the disturbed slopes have not been protected. So far we have been extremely fortunate to have had a very dry spring. What little rain we had two weeks ago has already eroded the slope - 18 inches in at least one spot. This is to advise you that if erosion control barriers have not been provided by 15 June the City will contract to do the work on its own. The cost of such work will be billed against the property. With respect to the debris which remains from the fire. the Fire Marshall has requested that it not be cleaned up until after 13 June. A "Notice to Remove" and a copy of Section 501.01 of the Shorewood City Code is attached. Finally. we anticipate that you will want to begin rebuilding the structure once insurance issues have been resolved. Assuming that the same house will be built. there will be no charge for plan review. state surcharge. sewer availability charge. or sewer permit. However. a new building permit will be required. This is to advise you that the permit will not be issued until such time as the matter of required retaining walls. which we have discussed several times in the past. has been resolved. Mr. Rannow. I understand that you have suffered a serious loss from the fire and I do not want to appear callous to your situation. However. the City has a responsibility to preserve property values and protect adjoining property owners from damage to their property. In this regard it is important that the concerns raised herein be resolved as swiftly as possible. A Residential Community on Lake Minnetonka's South Shore . . \. Kenneth Rannow 9 June 1988 page two If you have any questions or wish to discuss any of these items with me. please do not hesitate to contact my office. CI TY OF SHOREWOOD ~V~ Bradley ~Nielsen City Planner/Building Official BJN:ph cc: Dan Vogt Glenn Froberg //~ I t.!.ed. .-""'1 t:vr..".i t /J ,{/~~ /1 v~1' " n r t " , . . MAYOR Robert Rascop COUNCI L Jan Haugen K risti Stover Robert Gagne Barb Brancel ADMINISTRATOR Daniel J. Vogt -'. CITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 DATE: 9 June 1988 TO: Kenneth Rannow 8217 Hiawatha Circle Eden Prairie. MN 55344 PROPERTY LOCATION: 5955 Ridge Road PROPERTY IDENTIFICATION NO.: P.I.N. 36-117-23-31-0013 NOTI CE TO REMOVE Offensive and Unhealthy Substances NOTICE IS HEREBY GIVEN that there exists a condition on the above referenced property which is in violation of Chapter 501. Section 501.01 of the Shorewood City Code. a copy of which Section is enclosed. The offensive matter to be removed from the property includes the following: - Debris from house fire You are hereby required to remove the above-described matter and any other offensive matter located on the property and in violation of Chapter 501. Section 501.01 within ten (10) days from the date hereof. In the alternative. you may file a written notice of appeal at the Shorewood City Hall within ten (10) days. in which case your appeal will be set for hearing at the next regularly scheduled meeting of the City Council. If you do not respond to this Notice within ten (10) days. the City shall take whatever action as may be necessary to have the offensive matter removed. The costs incurred by the City for such removal shall be charged to the property owner and become a lein against the property. ***PLEASE GIVE THIS MATTER YOUR IMMEDIATE A'rlEHTION*** BY ORDER OF THE SHOREWOOD CITY COUNCIL. A Residential Community on Lake Minnetonka's South Shore ::0 fT1 0 Gl '/ 0 r 3: fT1 3: z fT1 ::0 0 Z l> '=' 0 I'TI , () c 0 c (/) Z -i -i -< 0 ::0 ::0 0 3: l> ~ 0 - 1> (D .. -i . ~ :r: .. fT1 -< ::0 0 ~ " r 0 0 Z Gl 0 0 . - l> . Z z , (i) l> r 1> -< (J) ::0 (J) I'TI 1> (/) .r a ED!: i l:::I:rn I-<~ .~~ "'8~ ~-~ Ci5~... E~. II~ ~ ~ ~rnrn ~(I) Co. 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I ~~ I ~1J.? . r' ! I ~" ~ .... I ;: N ~ . ,. a= a=; . -= ~#-t: ~ I .~- !::! , o~ z ,\ r-'-~ ~ r;:- c ~~, , ,~ , , Lilt: II I; ... G'l r fTl z M~}.~OU ~'Ol' ;~ I; I: LA So . .:::- t.... ... ,';!",.. ... ~\ ~\ . ~ . .:1, ~ li; ADDITION '" <:> il. H ~J> !: r ~fTl ,. fTl ~ec: '> Ill, (:=:\'" i;rnN " ,...~:rn ~. .1_ '\ '~ ~.... .... :.-. _'j...IlU I ~ '" ~\ " o~ ._.l!/; ~ 01() '^' ,(Ill " 152'!1 . 4.).:- , ---- ~ (j.I - (:.Ii \ lr \"h/ ~i~'~: 8 ~~;:~~t~ 1_ -I' : J.:;-!L -t---J}!!!: ,\ :J f _ N ~ ~~. ~~ ,., J,.. ~ ';'" '" ;t~, . ,., '11 'I: \+' .&.." [11' :~ :.:.... -::; -I ~ I ~.... ~ .., , ' ~', " " ... \ \ .~\ I~ ~ '" 1$0 l> $ 15 :;0 =i -<0 ... -< Ui --I '=' ~ ,--.. '" ~ 'I I --I , . ~~ en J" 9/ oi " '-1.~:/~ Ii" :li) """'"'' 'i. ~I ~ -<- . " ~ . ;. , lio .~.. ..7 -I ,. ,,(T\ ij)Z J64/4 ~ N C 0 _ .._.1'.4} . ,... 2- Ol .'~ 'l.> , . . ;!~ u o to.o _-1..._ -' "'-,' -10. .."'1 It U\' ',. ;' I ;:~ I .. ..' ~I ~'l ~ .. , ':Jl "3 ~ i ,,~w~., .-::~~ LOT 23 g =:1 ~ o - --_.~" ~ .:!.- LOT 24 3' - ---zrr-- 5 -f '" t! " ~~ 4$" 1 ~~ 5...,' I to r.: :/ --;;;,.----,- - -- .,. ~I -,-__-1 ~ \ 6---' ---- ---i"' - -- ,S-N Ul ---~,---- ~ ~\ t g D N .". N ~ ::I: -< o :u o r 0 o Gl o ~ ~ 5.B f"'/, '---: C"""~ 1.''1./ .1h. 'I' 'f. ~ t)- ~ c- ~ ~-.. -.:=.- ... . ZZ~I Co"/ "- i~~)\ )> z )> ~ Ch Ch ... ~..~ , -~ ~ "s~--r ) \., / ",,,,''0 ;;.J '- "N --1:1 'W' iQ. d'-o /- M' -... .... .... ~~I:> ....~ O"rb- ;;. ...... -1",- ~ ~ 'ao. ,,~ 1\)/ i' ~-, ,~ --, ~ -::!.-..& .... '" ~. ..I( c... C Z fTI (0 CD CD </. .0 "0 <1'Pr L .' ''& ,'. {) .. . ,'..; u .t " " · LUnDGREn · BRO~cONSTRucTloN ~. INC. ,.fUN? I 00 .-:" \;.) ,- 935 EAST WAYZATA BOULEVARD. WAYZATA, MINNESOTA 55391 . (612) 473-1231 June 20, 1988 Mr. Brad Nielsen Shorewood City Planner 5755 Country Club Road Shorewood, Minnesota 55331 Re: Combination of Lots 1 and 2, Block 2, Sweetwater at Near Mountain Dear Brad: As we briefly discussed some time ago, our Marketing Department has concluded that, because of the amount of space which the entrance monument, berm and landscaping occupy, Lot 1, block 2, Sweetwater, is too narrow for an upper bracket custom home. To remedy this and provide more spaciousness in the entrance area, Lundgren Bros. proposes to combine Lots 1 and 2 into a single building site. Please advise as to the submission materials and steps which will be required to accomplish this. I have attached ~ description of the drainage and utility easement which we will need to vacate to furnish an unencumbered building area. Very truly yours, Lundgren Bros. Construction, Inc. I //7 . ~ //~i N/ 'i~:el i pf{im". MAP/md enclosure I~ Go ..- .... ... ... . . .. . . -" .." ~J. o . II SAT H R E - B ERG QUI S T. 106 SOUTH BROADWAY . WAYZATA, MN. 55391 · TELEPHONE 612-476-6000 PROPOSED DRAINAGE & UTILITY EAS~'T VACATION Lots 1 & 2, Block 2, SWEIrrWATER INC. That part of the 10.00 foot drainage and utility easement lying on each side of the conunon lot line between Lots 1 and 2, Block 1, SWEIrrWATER, according to the plat thereof on file or of record in the office of the Registrar of Titles, lying southeasterly of a line 10.00 feet easterly of and parallel with the westerly line of said Lots 1 and 2. Dated: June 17, 1988 I I I I I J / / -- / ....,,.. --- J V\.,." . ,. c --- I t-j ~., __ .j ,V, 'I ---_./\ "- ) / / / / / / / / / .J 't ~ ~ [I I .... ('J C.) -- Q: [, I .... < -- " -~ os "'> c.;. ("'\ /-: c..') ~ ~ I f () c:...T .... () ct O(!} . . I o(!} v . .~ .~ lO f'- . . . , ,'~ :' :r - / I--;;~---~~~ .::$;:~ ,,~_ ___ .01:: .;l,i / 'Ii' _ _ ..0 :t : .ii' - ---'P I ~ .,Oqo;- _ -::".:;S[ . ~ ~ '''or..- - "., ~po ~ ;t ;:""t')" I : ~ rn .~I .~ ~ ~~ I iq-=_J<1ZL----~l . ; ~ !>\ ~ .. RESOLUI'Irn N). A RESOLUI'Irn DENYIm AN AMEND\'1ENI 'lO 1lIE ZCNIm (H)INAtcE OF 1lIE CI'lY OF SImE\\OD WHEREAS, Mr. Jeff 'lbarpson and lVS. Loxie I.\bck own a b\1O-family dwelling at 5875 Division Street in the City of Shorewood; and WHEREAS, the property is presently zoned R-1C. single-family residential. and their hane is therefore a nonconfoIming use in that district; and WHEREAS. there are several other two-family dwellings in the same neighborhood that are existing as nonconfoIming uses; and WHEREAS. thirteen residents in the imnediate area have petitioned the City to rezone an area along Division Street containing approximately 10.7 acres. and including the property on which the two-family dwellings are located, to R-2A or R-2B, two-fami ly residential; and WHEREAS, a public hearing was held and the matter reviewed by the Planning Coomission on 7 June 1988, and the PI8IU1ing Comnission could not fOIm a consensus as to the matter; and WHEREAS, the City Council considered the matter at their regular meeting on 13 June 1988, voted to deny the application, and directed the Ci ty Attorney to prepare Findings and Conclusions for review and action by the Council at their next regularly scheduled meeting. NlV, 'lHEREKEE, BE IT RESOLVED by the City Council of the City of Shorewood as follows: FINDIros OF FAcr 1. 'lbat the above-described property is located in a district zoned R-1C. 2. 'lbat a substantial majority of the hanes in the imnediate area of the subject property are single-family residential units and confoIm to the R-1C zoning requi rement s. 3. 'lbat rezoning the subject district to R-2A or R-2B, two-fanlily residential, would increase the density of the district and create additional traffic in the imnediate area. /3 ~. ;-l:- . i. , SEYMOUR J. MANSFIELn & ASSOCIATES v/J.---rc,rtt ATTORNEYS AT LAW 620 NATIONAL CITY BANK BUILDINO ~IO MARQUETTE AVENUE MINNEAPOLIS, MINNESOTA 1515402 (612) 339.429~ FAX (612) 339-3161 OF COUNSEL '" '" SEYMOUR J. MANSFIELD ROJ$ERT A. JOHNSON RICHARD J. FULLER DENISE L. YEOOE RONALD H. USEM June 17, 1988 City Council Members City of Shorewood c/o Mr. Brad Nielsen 5755 Country Club Road Shorewood, MN 55331 Re: Roy E. Ahern v.City of Shorewood Lot 11, Radisson Addition, 5540 Shore Road, Shorewood, MN Dear Council Members: As you are aware, we are attorneys for Roy Ahern representing him in his attempts to obtain a conditional use permit. You denied Mr. Ahern's CUP application for the construction of a home on Lot 11, by your Resoiution No. 15-88, adopted February 28, 1988. The purpose of this letter is to give the City one last opportunity to reverse its decision prior to our filing suit. I will not restate here the arguments which we presented at length before the Planning Commission, the City Council and in our legal memorandum. Suffice it to say the factual and legal analysis which we provided required that the City grant the conditional use permit: Mr. Ahern met all the threshold requirements under your ordinances, his proposed use would not have had any significant effect on the general welfare of the community, and there was absolutely no legitimate reason to deny the permit. The purpose of this letter is to put the City on notice that its denial of Mr. Ahern's right to construct a home on his property J3 fr d-. City Council Members City of Shorewood June 17, 1988 Page Two constitutes an "inverse condemnation" and unconstitutional "taking" of Mr. Ahern's property without "just compensation" as mandated by the Fifth and Fourteen Amendments of the united states Constitution and Article I, ~ 13 of the Minnesota Constitution. In light of recent United states Supreme Court decisions, it is clear that the Council's interpretation of Shorewood City Code Section 1201.02, subd. 12 to give effect to adjacent landowners' desires to maintain a vacant "lake access" lot will result in this ordinance being struck down and/or require the City to buy the property from Mr. Ahern at its market value. See Nollan v. California Coastal Commission, 55 U.S.L.W. 5145.; 107 S.ct. 3141 (June 26, 1987); First Enqlish Evangelical Lutheran CQurch v. Los Anqeles, 55 U.S.L.W. 4781; 107 S.ct. 2378 (June 9, 1987).* In Nollan, the California Coastal Commission granted a beach front property owner a permit to build a house on the lot on the condition that the owner allow the public a lateral easement to pass across the beach. The Commission's stated justifications for the easement condition were to protect the public's ability to see the beach, to assist the public in overcoming a perceived "psychological" barrier to using the beach, and to prevent beach congestion. These justifications were found entirely insufficient to "substantially advance legitimate state interests" and further "denied [the property owner of] economically viable use of his land." ~ at 3146, 3147. The easement requirement was a constitutionally invalid use of the state's police power, even though almost all the other beachfront owner's had consented to such a condition. In striking down this condition on its permit as an unconstitutional taking of property, the Court noted that an unconditional refusal to issue the permit would be just as much an unconstitutional taking as the issuance of a permit on this condition. Id. at 3147. The court concluded that if California ------------------~----- * Copies of both opinions are enclosed herewith. City Council Members City of Shorewood June 17, 1988 Page Three wanted to impose such a program on beach front owners, it could do so: "by using it's power of eminent domain for this 'public purpose' . . . ; but if it wants an easement across the Nollans' property, it must pay for it." Id. at 3150 (emphasis added). The unconstitutional "taking" in Mr. Ahern's case is far more intrusive than that in the Nollan case, since the City has not merely required that he maintain an easement of access to the beach (which Mr. Ahern is quite willing to do), but has deprived him of any and all right to build on the property in contravention of his rights as property owner in accordance with registered land titles, in effect, compelling him to maintain a vacant park for the benefit of the Radisson Addition homeowners group. Be on notice that if Mr. Ahern is required to bring suit against the City, in addition to seeking jUdicial reversal of the City's denial of his conditional use permit, he will seek to invalidate the City's ordinance and/or City Council's overreaching application of that ordinance as an unconstitutional taking and "inverse condemnation" of his property and further require the City to buy his property from him. As the Supreme Court held in Nollan, if Shorewood wishes to make Mr. Ahern's lot a vacant park, .it must pay for it.. Id. at 3150. He further will seek compensation for the City's denial of his applications for conditional use permits for a period of almost three years, to which he is entitled under First Evanqelical Luthern Church v. Los Anqeles. Moreover, Mr. Ahern also would bring his action pursuant to the Civil Rights Act, 42 U.S.C. Section 1983, for deprivation of his constitutional rights, and therefore be entitled to recover from the City his reasonable legal expenses and attorneys' fees as authorized by 42 U.S.C. Section 1988. We are writing you at this juncture to give you the opportunity to again review this matter in order to avoid your exposure to substantial damages in litigation. Mr. Ahern will not proceed with his lawsuit against the City if it promptly reverses its City Council Members City of Shorewood June 17, 1988 Page Four previous decision and grants him a conditional use permit, nor will he seek interim compensation pursuant to First Evanqelical Lutheran Church. An objective reading of property law, zoning law, and constitutional requirements leaves no doubt that the City will be reversed by the courts. We understand the political ends that might have been served by the Council's denial of Mr. Ahern's rights, but we would respectfully submit that it ultimately will not be in the City's best interests to resolve this matter on a political basis. Please respond to this letter within 14 days. If you fail to respond, we will conclude that the City does not wish to correct its wrongdoing, and we will proceed with Mr. Ahern's litigation against the City. I hope that this matter can be amicably resolved. SJM:jlo truly yours, SEYMOUR J. ASSOCIATES cc: Glenn Froberg, Esq. Froberg & Penberthy, P.A. ~OLLA~ Y. CALlFOR~IA COASTAL COM'~ Clle u 107 S.Ct. 3141 (1987) minor, great care must be taken to ensure that the minor truly deseryes to be tr~ated l>S an adult. A specific inquiry including "age, actual maturity, family em-ironment, education, emotional and mental stability, and .., prior record" is particularly rele- yant when a minor's criminal culpability is at issue. See Fare 1'. Michael c., 442 1:.S. ~Oi, 734, n. 4, 99 S.Ct. 2560, 25i6, n. 4, 61 L.Ed.2d 197 (19i9) (POWELL, J., dissent- ing). ~o such inquiry occurred in this case. In e\'ery realistic sense Burger not only was a minor according to law, but dearly his mental capacity was subnormal to the point where a jury reasonably could haye belieyed that death was not an appro- priate punishment. Because there is a rea- sonable probability that theeyidence not presented to the sentencing jury in this case would haye affected its outcome, Burger has demonstrated prejudice due to counsel's deficient performance. :',:0.: ." ;;" III As I conclude that counsel's performance in this case was deficient, and the deficien- cy may we]) haye influenced the sentence that Burger receiyed, I would yacate Burg- er's death sentence and remand for resen- tencing. Slale L.Re\'. 363. 368-369, and nn. 33-36 (1986). Of lhe Slales permining imposilion of lhe dealh penally on ju\'eniles. o\'er half of lhem explicilly denomin;He youlh as a milij;aling faclOr. The American Law Inslitule's :-'10del Penal Code cap. ilal punishmem stalute states an exclusion for dcfendams "under I S years of age at the time of 1he commission of lhe crime." ~ 210.6(1)(d) (1980). The Imlilule reasons "that ci\'ilized so- cieties will not tOlerale the spectacle of execu. tion of children, and lhis opinion is confirmed by 1he American experience in punishing youth- fuloffenders." Id., Commenl, p. 133. In 1983. the American Bar Association adopted a resolu- lion staling that the organization "oppo[ses), in principle, lhe imposition of capilal punishment on any person for an offense com milled while that person was under the age of 18." See ABA Opposes Capital Punishment for Persons under 18. ~9 ..\.B.:\J. 1925 (19S3). -- 3141 James Patrick ~OLLA~. et ux., Appellant ". CALlFOR~IA COASTAL CO]\1:\nSSlO~. ~o. 86-133. Argued March 30, 198i. Decided June 26, 1987. Property owners brought action against California Coastal Commission seeking writ of mandate. The Commission had imposed as a condition t.o approyal of rebuilding permit requirement that owners proYide lateral access to public to pass and repass across property. The Superior Court, Ventura County, WiJJiam 1. Peck, J.. granted peremptory writ of mandate, and the Commission appealed. The California Court of Appeal, Abbe, J., Iii CaJ...\pp.3d 719,223 Ca1.Rptr. 28, reyersed and remand- ed with directions. Appeal was taken. The Supreme Court, Justice Scalia, held that Commission could not, without paying compensation, condition grant of perrnis- sion to rebuild house on property owners' transfer to public of easement across beachfront property. Re\'ersed. Internalional opinion on the issue is reflecled in Article 6 of lhe Internalional Co\'enant on Ci\'i1 and Political Righls and the American Con- \'enlion on Human RighlS. See enited l\ations, Human RighlS, A Compilalion of International Instruments 9 (1983). See also Wdssbrodt. l'nited States Ratification of lhe Human Rij;hts Co\'enants, 63 Minn.L.Re\'. 35,40 (19iS). Both prohibit the execu1ion of indi\'iduals under the age of 18 at the time of their crime. The l'nited States is nOl a party to either of lhese tre;;ties, bUl at least i3 other nations haye signed or ratified the Inlernational Coyenant. See Wei~s. brodt, supra. All European countries forbid imposition of Ihe death penally on lhose under 18 atlhe time of their offense. Slreib. supra, al 389 (citing Amnesty lnlernational, The De;;th Penalty (1979)). 1 " ~Ol 3142 lOi SrPRE!\IE eOl:RT REPORTER Justice Brennan filed a dissenting opin- ion in which Marshall joined. Justice Blackmun filed a dissenting opinion. Justice Steyens filed a dissenting opin- ion in which Justice Blackmun joined, 1. Eminent Domain e=>2(1.2) Although outright taking of uncom- pensated, permanent, public-access ease- ment yiolates Fifth Amendment taking clause, conditioning property owners' re- building permit on granting of easement can be allowed for land use regulation if condition substantially furthers govern- mental purposes that justify denial of per- mit. V.S.C.A. Const.Amend. 5. 2. Eminent Domain e=>2(10) California Coastal Commission could not, without paying compensation, condi- tion grant of permission to rebuild house on property owners' transfer to public of easement across beachfront property. U.S. e.A. Const.Amend. 5. Syllabu.s . The California Coastal Commission granted a permit to appellants to replace a small bungalow on their beachfront lot with a larger house upon the condition that they allow the public an easement to pass across their beach, which was located be- tween two public beaches. The Count" Superior Court granted appellants a writ df administratiye mandamus and directed that the permit condition be struck. Howeyer, the State Court of Appeal reyersed, ruling that imposition of the condition did not yiolate the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. Held: 1. Although the outright taking of an uncompensated. permanent, public-access easement would yiolate the Takings · The ~yJJabus constitutes no part of :be. opinion of the Court but has been prepared b~' the Re. porter of Decisions for the conycnicnce of the Clause, conditioning appellants' rebuilding permit on their granting such an easement would be lawful land-use rE'gulation if it substantially furthered go\'ernmem.al pur- poses that would justify denial of the per- mit. The goyernment's power to forbid particular land u!'es in order to adyance some legitimate police-power purpo!'e in- cludes the powE:'r to condition such u!'oe upon some concession by ,he owner, HeD a concession of property rights, so long a!'o the condition furthers the !Same go\'ern- mental purpose adyal1ced as justification for prohibiting the u!'e. Pp, 3145-3148. 2. Here the Commission's impositklJJ of the access-easement condition cannot be treated as an exercise of land-use regula- tion power since the condition does not sen'e public purposes rE:'lated T~O the j:.ermit requirement. Of those put forth to justify it-protecting the public's ability to see ,lit: beach, assisting thE- public in O\,\:T(:oming a percejyed "p~ychoklgical" barrier to using the beach, and prey€nting beach ceDges- tion-none is plausible. ~loreoYer, the Commission's justification for the access requirement unrelated to land-use regula- tion-that it is pan of a comprehensiY€ program to proYide bEach access arising from prior coastal permit deci!'ic\m-is :sim- ply an Hpression of the belief th&t t~,(- public interest wi1l be seryed by a continu- ous strip of pub~icJy accessible beach, Al- though the State is free to adyance its "comprehensh'e prc.gram" by exercising its eminent domain power and paying for :::c- cess easements. it cannot compel coastal residents :::lone to contribute to the realiza- tion of that goal. Pp. 3148-3150. Iii CaJ.App.3d ';19, 2:23 CaJ.Rp!', 28 (1986), reyersed. SCALIA. J., deliH'red the o}Jinjon d the Court. in which REH::\QUST. C.J.. and WHITE. POWELL, and O'CO::\::\OR. JJ.. joined. BRE::\::\ A::\, J., filed a dissenting opinion. in which ~1:\RSHALL, J" joined. BLACK~n.:S, J.. filE:'d a dissenting opinion. STEVE~S. J., filed a di: which BLACKM1:!\, J.. Robert K. Best. Sac appellants. Andrea Sheridan OJ Ca1., for appellee. Justice SCALIA deli' the Court. James and !\larilyn ~ decision of the Califor ruling that the Califor sion could condition its to rebuild their house the public of an ea: beachfront property. 223 Ca1.Rptr. 28 (19 Court rejected their ( of that condition y Clause of the Fifth Ar rated against the Stat Amendment. Ibid. iurisdiction. 4i9 D.S 93 L.Ed.2d 286 0986 reader. See [',;;';e.1 S;a;es 1', Dcnoil Lumber Ca.. 200 l'.S. ~2J, 337. 26 S,C!. 21'2. 2Si. 50 L.Ee. 499. The ~ ollans own a tura County, Califo: north of their prop Park, an oceanside p lic beach and recre public beach area. 1 Coye," lies 1,800 fee' concrete seawall a~': high separates the Nollans' property fr The historic mean hi the lot's oceanside The ~ ollans origi erty with an option on the lot was a Sf 504 square feet. \' rented to summe years of rental u!'t' had fallen into dim er be rented out, :\OLLAN ". CALIFOR!'\IA COASTAL CO)I':\ Cite IUi 107 5.Ct. 3141 (1987) 3143 8TE\'E:\S, J., filed a dissenting opinion, in which BLACKMLN, J., joined. Robert K. Ben. Sacramento, CaJ., for <l]lpellants. .~.ndrt'a Sheridan Ordin, Los Angeles, C:JJ.. for appellee. Justice SCALIA deli\'ered the opinion of the Court. James and !llfarilyn Nollan appeal from a decision of the California Court of Appeal ruling that the California Coastal Commis- ~ion could condition its grant of permission to rebuild their house on their transfer t.o ,he public of an easement acrosS their beachfront property. li7 CaJ.App.3d 719, :::':28 CaJ.Rptr. 28 (1986). The California ((11m rejected their claim that imposition cof that condition \'iolates the Takings Clause of the Fifth Amendment, as incorpo- n.ted against the States by the Fourteenth Amendment. Ibid. We noted probable j'.lrisdiction. 479 L.S. -, 107 S.Ct. 312, 83 L.Ed.2d 286 (1986). The Nolians own a beachfront lot in Ven- tur;;, County, California. A quarter-mile north of their property is Faria County Park. an oceanside public park with a pub- lic beach and recreation area. Another public beach area, known locally as "the ((l\'e," lies 1,800 feH south of their lot. A ("concrete seawall approximately eight feet high separates the beach portion of the ~oJlans' property from the rest of the lot. TJ-.e historic mean high tide line determines the lot's oceanside boundary. The Nollans originally leased their prop' erty with an option to buy. The building on the lot was a small bungalow, totaling ~,(l4 square feet, which for a time they rt'TJted to summer \'acationers. After y<:-ars of rental use. howe\'er, the building k,d fallen into disrepair. and could llQ..long- t'r be rented out. The Nollans' option to purchase was con- ditioned on their promise to demolish the bungalow and replace it. In order to do so, under California Public Resources Code ~~ 30106, 30212, and 30600 (West 1986). they were required to obtain a coastal de- \'elopment permit from the California Coastal Commission. On February 25, 1982, they submitted a permit application to the Commission in which they proposed to demolish the existing structure and re- place it with a three-bedroom house in keeping with the rest of the neighborhood. The Nollans were informed that their application had been placed on the adminis- tratiye calendar. and that the Commission staff had recommended that the permit be granted subject to the condition that they allow the public an easement to pass across a portion of their property bounded by the mean high tide line on one side, and their seawall on the other ~ide. This would make it easier for the public to get to Faria County Park and the Coye. Tne Nollans protested imposition of the condition, but the Commission o\'erruled their objections and granted the p€Tmit subject to their recordation of a deed restriction granting the easement. App. 31, 34. On June 3, 1982, the ~ollans filed a petition for writ of administrati\'e manda- mus asking the \' entura County Superior Court to in\'alidate the access condition. They argued that the condition could not be imposed absent eyidence that their pro- posed de\'elopment would haye a direct ad. \'erse impact on public access to the beach. The court agreed, and remanded the ca~e to the Commission for a full eyidentiary hearing on that issue. Id.. at 36. On remand, the Commission held a public hearing, after which it made further factu- al findings and reaffirmed its imposition of the condition. It found that the new house would increase blockage of the yiew of the ocean, thus contributing to the den lop. ment of "a 'wall' of residential Hructures" that would preyent the public "psychologi. cally ... from realjzing a stretch of coaH- line exists nearby that they haye eyery 3144 107 SUPREME COl:RT REPORTER right to yisit." Id., at 58. The new house would also increase priyate use of the shorefront. Id., at 59. These effects of construction of the house, along with other area deyelopment, would cumulath'ely "burden the public's ability to trayerse to and along the shorefront." Id., at 65-66. Therefore the Commission could properly require the Nollans to offset that burden by proYiding additional lateral access to the public beaches in the form of an easement across their property. The Commission also noted that it had similarly conditioned 43 out of 60 coastal development permits along the same tract of land, and that of the 17 not so conditioned, 14 had been approyed when the Commission did not haye administrath'e regulations in place al. lowing imposition of the condition, and the remaining 3 had not involved shorefront property. Id., at 47-48. The X ollans fjled a supplemental petition for a writ of administratiye mandamus with the Superior Court, in which they ar- gued that imposition of the access condition \'iolated the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. The Superior Court ruled in their fayor on statutory grounds, finding, in part to ayoid "issues of constitutionality," that the Cali- fornia Coastal Act of 1976, Cal.Pub.Res. Code Ann. ~ 30000 et seq., authorized the Commission to impose public access condi- tions on coastal deyelopment permits for the replacement of an existing single-fami- ly home with a new one only where the proposed development would haye an ad- yerse impact on public access to the sea. App.419. In the Court's yiew, the adminis- trath'e record did not proyide an adequate factual basis for concluding that replace- ment of the bungalow with the house would create a direct or cumulatiye burden on public access to the sea. Id., at 416- 417. Accordingly, the Superior Court granted the writ of mandamus and directed that the permit condition be struck. The Commission appealed to the Califor- nia Court of Appeal. While-that appeal was pending, the ~oJlans satisfied the Con- dition on their option to purchase by tear- ing down the bungalow and building the new house, and bought the property. They did not notify the Commission that they were taking that action. The Court of Appeal reyersed the Superi- or Court. 177 Cal.App.3d 719, 223 Cal. Rptr. 28 (1986). It disagreed with the Su- perior Court's interpretation of the Coastal Act, finding that it required that a coastal permit for the construction of a new house whose floor area, height or bulk was more than 107< larger than that of the house it was replacing be conditioned on a grant of access. Id., at 723-724, 223 CaI.Rptr., at 31; see CaI.Pub.Res.Code ~ 30212. It also ruled that the requirement did not yiolate the Constitution under the reasoning of an earlier case of the Court of Appeal, Grupe t'. California Coastal Comm 'n, 166 Cal. App.3d'148, 212 Cal.Rptr. 578 (1985). In that case, the court had found that so long as a project contributed to the need for public access, eyen if the project standing alone had not created the need for access, and eyen if there was only an indirect relationship between the access exacted and the need to which the project contribut- ed, imposition of an access condition on a de\'elopment permit was sufficiently relat, ed to burdens created by the project to be constitutional. 177 CaI.App.3d, at 723, 223 CaI.Rptr., at 30-31: see Grupe, supra, 166 CaI.App.3d, at 165-168, 212 CaI.Rptr., at 587-590: see also Remmenga t'. Cal(for- nia Coa.stal Comm 'n, 163 Cal.App.3d 623, 628, 209 Cal.Rptr. 628, 631 (1985), appeal dismissed. 474 U.S. 915, 106 S.Ct. 241. 88 L.Ed.2d 250 (1985). The Court of Appeal ruled that the record established that that was the situation with respect to the ~ol, lans' house. 177 CaI.App.3d, at 722-723. 223 CaI.Rptr., at 30-31. It ruled that the Kollans' taking claim also failed because, although the condition diminished the \'alue of the ~o])ans' lot, it did not depriye them of all reasonable use of their property. Id., at 723, 223 CaI.Rptr., at 30; see Grupe. supra, 166 CaI.App.3d, at 175-176, 212 Cal. Rptr., at 595-596 Appeal's yiew, tn constitutional obs access condition, in granting the . Nollans appealed the constitutional (1) Had Calif -Nollans to make beachfront ayaila manent basis in access to the be~ ing their permit their agreeing tc there would hay tha't>the appropr: across a lando\' constitute the ta but rather, (as tends) "a mere r at 3154, n. 3, is that depriyes tl meaning. lndee of the emineJlt that the goyer! conyeyance of j as it pays for th on Eminent Do 1985), 2 id., ~ 5. id., ~ 6.14. Per obyious, we ha with a controye upon it, but ou fect of other g. the same concll held that, as t owner for prh-a [others is] 'one in the bundle 0 characterized : Teleprompter 458 U.S. 419, 4 1. The holding ( Robins. 4017 L'.~ 701 J (l9S0), is n since there the properlY to the permanent ace, sis cf Kaiser ..If ~OLLA~ ". CALlFOR!\IA COASTAL CO)l'~ CIte.. 107 S.Ct. 3141 (1987) 3145 Rjltr., at 595-596. Since, in the Court of ..\ppeal's ,'iew, there was no statutory or constitutional obstacle to imposition of the access condition, the Superior Court erred in granting the writ of mandamus. The ~ol1ans appealed t.o this Court, raising only the constitutional question. II [] ) Had California simply required the ~ ollans to make an easement across their beachfront available to the public on a per- manent basis in order to increase public access to the beach, rather than condition, ing their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement :<cross a landowner's premises does not constitute the taking of a property interest but rather, (as Justice BRENNAN con- tends) "a mere restriction on its use," post, :<t 3154, n. 3, is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require C011\"eyance of jUH such interests, so long as it pays for them. J. Sackman, 1 Nichols on Eminent Domain ~ 2.1[1] (Rev. 3d ed. 1985),2 id., ~ 5.01[5J: see 1 id., ~ 1.42[9],2 id.. ~ 6.14. Perhaps because the point is so obvious, we ha.\"e never been confronted with a controversy that required us to ruie upon it, but our cases' analysis of the ef- fect of other governmental action leads to the same conclusion. We ha\'e repeatedly held that, as to property resen'ed by its owner for private use, "the right to exclude [others is] 'one of the most essential sticks jn the bundle of rights that are commonly ('haracterized as property.''' Lorfito 1'. Teleprompter Jfallhattall CATV Corp., 458 U.S. 419, 433, 102 S.Ct. 3164, 3175, 73 J. The holding of Prulle}'ard Shopping Ce1l1er 1'. Robir:s, 447 U.S. 74, )00 S.Ct. 2035, 64 L.Ed.2d i41 (1980), is not inconsistent with this analnis. ~ince Ihe~e the owner had already opened' his property to the general public. and in addilion permanent access was not required. The-ai'!'aly. sis of Kaiser ..lema I'. CI:iled SI(;le.<. 444 U.S. 164. L.Ed.2d 868 (1982), quoting Kai$('r Actna t'. 'United Statfs. 444 U.S. 164. 176, 100 S.Ct. 383, 391, 62 L.Ed.2d 332 (1979). In Lorett.o we observed that where govern- mental action results in "[a] permanent physical occupation" of the property, by the government itself or by others. see 458 U.S., at 432-433, n. 9. 102 S.Ct., at 3174- 3175, n. 9, "our ca~es uniformly have found a taking to the extent of the occupation. without regard to whether the action achieves an important public benefit or has only minimal economic impact on the own- er," id., at 434-435, 102 S.Ct., at 3175-3176. Vlre think a "permanent phY5ical occupa- tion" has occurred, for purposes of that rule, where individuals are given a perma- nent and continuous right to pass to and fro, so that the real property may continu- ously be traversed, even though no particu- lar individual is permitted t.o station him- self permanently upon the premises.! Justice BRE~~A~ argues that while this might ordinarily be the case, the Cali- fornia Constitution's prohibition on any in- dividual's "exclu[ding] ~he right of way to [any navigable] water whenever it is re- quired for any public purpose:' _....rticle X, ~ 4, produces a different result here. Post, at 3153-3154; see also post, at 3157, 3158-3159. There are a number of difficul- ties with that argument. Most obviously, the right of way sought here is not natural, ly described as one to navigable water (from the street to the sea) but Q long it; it is at least highly questionable whether the text of the California Constitution has any prima facie application to the situation before us. Even if it does, however, sever- al California cases sugge~t that Justice BREN:SA~'s interpretation (of the effect of the clause is erroneous, and that to obtain easements of access across prh'ate proper- ty the State must proceed through its emi- 100 S.Ct. 383. 62 L.Ed.2d 332 (19i9). is not inconsistent because it was ..ffected by tradi, tional doctrines re/;arding nayigalional sen'i, tudes. Of course neither of those cases in, yoJyed. as Ihis one does, a classic right-of. way easement. ..~. "'-:.-' 3146 10i Sl"PRE~IE COt'RT REPORTER :"\01 nent domain power. See Bol.sa Land Co. v. Burdick, 151 Cal. 254, 260, 90 P. 532, 534-535 (1907); Oakland 1'. Oakland lfa- ter Front Co" 118 Cal. 160, IS5, 50 p, 2i7, 286 (1897); Heist r. County of Colusa, 163 Cal.App.3d 841, S51, 213 Cal.Rptr. 2i8,285 (1984); AptosSeascape Corp, 2'. Santa Cruz, 138 Cal.App.3d. 484, 505-506, 188 Cal.Rptr. 191, 204-205 (1982) (~one of these cases specifically addressed the argu- ment that Article X, ~ 4 allowed the public to cross priyate property to get to nayiga- ble water, but if that proyision meant what Justice BRENNAN belieyes, it is hard to see why it was not inyoked.) See also 41 Op.Cal.Atty.Gen. 39. 41 (1963) ("In spite of the sweeping proyisic,ns (.f [Article X, ~ 4], and the injunction therein to the Legisla- ture to giw its proyisionR the most liberal interpretation, the few reponed cases in California haye adopted the general rule that one may not trespass on priyate land to get to n3Yigable tidew:iters for the pur- pose of commerce, nayigation or fishing"). In light of these uncertainties, and gh'en the fact that, as Justice BLACKMU~ notes, the Court of Appeal did not rest its decision on Article X, ~ 4, post, at 3162, we should assuredly not take it upon ourseh'es to resohe this question of California consti- tutionallaw in the first im-:.ance. See, e.g., Jenkins r. Anderson. 447 FS. 231, 234, n. 1, 100 S.Ct. 2124, 212" n. 1. 65 L.Ed.2d 86 (1980). That would be doubly inappropri- 2. Justice BRE:\l\Al\ also succeSlS that the Com. mission's public anno:mce;'-;nt of its intention to condition the rebuilding of houses on the transfer of easements of access caused the ~ol. lans to ha"e "no reasonable claim to an~' expec. tation of being able to exclude members of the public" from walking across their beach. POST, at 3]5E-3159. He cites our opinion in Ruckel. shaw,'. /.10';.<al:l0 Co., ~67 l'.5. 9S6, ]04 S.Ct. 2862, 81 L.Ed.2d 8]5 (I9S~) as suppon for Ihe peculiar proposition Ihat a unilateral claim of emitlement by Ihe go\'ernment can aher proper. ty rights. In .Hon!alllo, howe\'er, we found merely that the takings clause was not \'iolated by gi\'ing effect 10 the Go\'ernmem's announce. mem that application for "11;(: righT to /the] ,'a/u. able Go,'cmmCIiT bn:cfit," id.. 3t 1007, ]04 5.Ct., at 2S;5 (emphasi~ added), of obl?ining registra. tion of an in~eclic:dc would confer ~pon the GOHrnment a !icer.se to l'se and ei~dose the trade ~ecrels contained in the application. /d., ate since the Commission did not ad\'anc~ this argument in the Court of Appeal. and the 1'ollans argued in the Superior Court that any claim that there was a pre-existing public right of access had to be asserted through a quiet title action, see Points and Authorities in Support of Motion for Writ of Administrati\'e Mandamus, ~o. SP50805 (Super.Ct.Cal.), p. 20, which the Commis. sion, possessing no daim to the easement itself, probably would not ha\'e had stand- ing under California law to bring. See Cal,Code Ci\'.Proc.Ann. ~. 738 (West 19S0).~ Given, then, that requiring uncompensat- ed conveyance of the easement outright would \'iolate the Fourteenth Amendment, the question becomes whether requiring it to be con\'eyed as a condition for issuing a land use permit alters the outcome. We have long recognized that land use reguJ;;.- tion does not effect a t.aking if it "substan- tially ad\'ance[s] legitimate state interests" and does not "den[y] an owner economical- ly viable use of his land," Agins 1'. Tibu- ron, 447 L.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). See also Penn Cen- tral Transportation Co. t'. Sew York City, 4381:.5. 104, 127, 98 S.Ct. 2646, 2660, 57 L.Ed.2d 631 (1978) ("a use restriction may constitute a 'taking' if not reasonably necessary to the effectuation of a substan. tial go\'ernment purpose"). Our cases at ]007-1008, ]04 S.Ct., at 2875-2876. See also Bowen F. Gilliard, - U.S. -, -, ]07 5.Ct. _, -,95 L.Ed.2d - (1987). But the right to build on one's own property-e\'en though its exercise can be subjected to legitimate permit. ting rec;uiremems-<annot remotely be de. scribed as a "go\'ernmental benefit." And thus the announcement that the application for (or granting of) the permit will entail the yielding of a p~openy interest cannot be regarded as establishing the \'oluntary "exchange." 467 C.5., at ]007, 104 5.Ct., at 2875, that we found to ha\'e occurred in Monsalllo. Kor are the ~ollans' rights altered because they acquired the land well afler the Commission had begun 10 imple. ment its policy. So long as the Commission could not ha'.e depri\'ed the prior owners of the easement withoul compensaling them, the prior owners must be understood to ha\'e transfernd their full property rights in con\'eying the Jot. have not elaborated on determining what consti state interest" or what between the regulation est satisfies the requirE mer "substantially ad' The" haye made cleal bro~d ~ange of goyernn regulations satisfies t See Agins t\ Tiburon, 260-:262, 100 S.Ct., at zoning); Penn Cent1 Co. 1'. Sew York Cit preservation); Euclid Co., 272 U.S. 365, 47 S. (1926) (residential . z< Westfall, Government Priyate Interests in 1 Harv.Erivt.1.L.Rev. 1, I mission argues that a: bJe purposes are pre ability to see the beacl in oyercoming the "J: to using the beach cr shorefront, and prey the public beaches. 3. Contrary to Justice B 3150, our opinions dc standards are the sam process or equal.prote trar\' our \'erbal for field' ha\'e generally t ha\'e required that the ad\'ance" the "legitime be achie\'ed, Agir.s ". : ]00 5.Ct. 2]38, 2]41. ' that "the State 'coulG the measure adopted objecti\'e." Post, at - Clover Leaf Creamery' S.Ct. 7]5, 725, 66 L. BRE:\:\A~ relies pr' tection case, Mi/llle.<c Co., supra, and tW( cases, Williamson ". Inc., 348 U.S. 483, ~ 465,99 L.Ed. 563 (l~ Inc. ". Missouri. 342 407, 96 L.Ed. 469 standards he .....oul( rea~on to belie,'e (ar gh'es some reason t, the regulation of pI dards for takings c! lenges. and equ:11 identical; ar.y ml)f( :\OLLA:\ y, CALIFOR!\IA COASTAL CO~I'~ Cite as 107 S.Ct, 3141 (1967) 3147 ha\'e not elaborated on the standards for determining what constitutes a "legitimate !'tate interest" or what type of connection between the regulation and the state inter- est satisfies the requirement that the for- mer "substantially adyance" the latter.3 They haye made clear, howeyer, that a broad range of goyernmental purposes and regulations satisfies these requirements. See Agin$ 1'. TiburOll. supra, 447 U.S., at 260-262, 100 S.Ct., at 2141-2142 (scenic zoning); Penn Central Trall$portation Co. r. Sew York City, supra (landmark preseryation); Euclid 1'. .4 mbler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (926) (residential zoning); Laitos and Westfall, Go\'ernment Interference with Priyate Interests in Public Resources, 11 Hary.Enn1.L.Rey. 1. 66 (1987). The Com- mission argues that among these permissi- ble purposes are protecting the public's ability to see the beach, assisting the public in oyercoming the "psychological barrier" to using the beach created by a deyeloped shorefront, and preyenting congestion on the public beaches. We assume, without deciding, that this is !;o-in which case the Commission unquestionably would be able to deny the :s- ollans their permit outright if their new house (alone, or by reason of the cumulati\'e impact produced lin conjunction with other construction) 4 would substan. tially impede these purposes, unless the denial would interfere so drastically with the Nollans' use of their property as to constitute a taking. See Penn Central Tra'/1$portatioll Co. 1'. Neu' York City, suo pra. The Commission argues that a permit condition that seryes the same legitimate police.power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would haye pro' tected the public's ability to see the beach notwithstanding construction of the new house-for example, a height limitation, a width restriction. or a ban on fences-sO long as the Commission could haye exer. cised its police power (as we haye assumed believe that so long as the regulation of speech is at issue the standards for due process chal. lenges. equal protection challenges. and First Amendment challenges are identical. Goldblarr v. HempSTead, 369 t:.S. 590. 82 S.Ct. 987. 8 L.Ed.2d 130 (1962). does appear to assume that the inquiries are the same. but that assumption is inconsistent with the formulations of our later cases. 3. Contrary to Justice BRE~~A~'s claim. post, at 3150, our opinions do not establish that these standards are the same as those applied to due process c'r equal.protection claims. To the con. trary, our verbal formulations in the takings field have ~enerally been q\.:ite different. We ha\'e required that the regulation "substantially advance" the "le~itimate state interest" sought to be achie\'ed. Ag;I:s ~'. T:'buron, 447 U.S. 255. 260. ,100 S.CI. 213S. 2141. 65 L.Ed.2d 106 (19S0). not that "the State 'co:.ld raTiol:ally /;a~,'e decided' the measure adopted might achie\'e the State's objecti\'e." POST, at ~. quoting Minnesota l'. Clover Leaf Creamer:' Co., 449 t:.S. 456. 466, 101 S.Ct. i15. i25, 66 L.Ed.2d 659 (1981). Justice BRE~~AS relies principally on an equal pro' tection case. .Hilme..<o;a ,'. ClOl'er Leaf Creamery Co., s:'pra, and two substanti\'e due process cases. Williamson .... Lee OpTical of Oklahoma, IIlC., 3..8 U.S. 483. ..Si-4S8. is S.Ct. 461. 464- 465,99 L.Ed. 563 (1955) and Da)'.Brite Lightillg. Inc. l'. Missowi, 3..2 I:.S. 421, 423. 72 S.Ct. 405. 40i. 96 L.Ed. 469 (1952). in support of the standards he would adopt. But there is no reason to belie\'e (and the language of our cases gh'es some reason 10 disbelie\'e) that so long as the refUlation of pr0perty is at issue the stan. d;,rds for takin!;s challen~es, due process chal. len~es. and equal protection challc.-n~es are identical; ar.~' more than there is any reason to 4. If the Sollans were being singled out to bear the burden of California's attempt to remedy these problems, althou~h they had not contrib. uted 10 it more than other coastal landowners. the State's action. e\'en if otherwise valid. might violate either the incorporated Takings Clause or the Equal Protection Clause. One of the principal purposes of the Takjn~s Clause is "to bar Go\'ernment from forcing some people alone to bear public burdens which. in all fair. ness and justice. should be borne by the public as a whole." Armstrong v. UniTed STales, 364 U.s. 40, 49.80 S,Ct. 1563. 1569.4 L.Ed.2d 1554 (1960); see also San Diego Gas & EleCTric Co. !'. San Dicgo. 450 t;.S. 621, 656. 101 S.Ct. 1287. 1306, 67 L.Ed,2d 551 (1981) (BRE~NAN, J" dissentin!;); Peml Cell1ral TransporTaTioll Co. v. .\'ew }'01-/: Cill', 438 1:.5. 104. 123. 98 S,Ct. 2646. 265S. 5i L.Ed.2d 631 (19iS). But that is not the basis of the ~ollans' challenge here. ";'o.';"r' ,:~.~_.. 3148 lOi SLPREME COURT REPORTER it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be con- stitutional even if it consisted of the re- quirement that the :sonans provide a yiew- ing spot on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to pro- tect the public's view of the beach must surely include the power to condition con- struction upon so:ne concession by the own- er, even a concession of property rights, that senes the same end. If a prohibition designed to accomplish that purpose would be a legitiml':teexercise of the police power rather than a taking, it would be strange to conclude that providing the owner an alter- native to that prohibition which accom- plishes the same purpose is not. The evident constitutic!ial propriety dis- appears, however, if the condition substi- tuted for the prohibition utterly fails to further the end advanced as the justifica- tion for the prohibition. When that essen- tial nexus is eliminated. the situation be- comes the same as if California law for- bade shouting fire in a crowded theater, but granted dispensl':tions to those willh1g to contribute ~lOO to the stat.e treasury. While a ban on sh0uting fire can be a core exercise of the State's police power to pro- tect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition aiters the purpose to one which, while it may be legitimate, is inadequate to sustain S. One would expect that a regime in which this kind of le\'eraging of the police power is al- lowed would produce ~tringent land-use regula- tion which the Slale then wai\"(~s to accompli~h other pur;:>o~e~. le:lding to les~er realization of the lanci-u~e g.);,;l~ purpe.r,edly so{;"ght 10 be ~ened than wo-..:ld result from more lenient (but the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an outright ban, it would not pass constitutional muster. Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to some- thing other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to sene some valid goyern- mental purpose, but without payment of compensation. Whatever may be the outer limits of "legitimate state interests" in the takings and land use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the build- ing restriction is not a valid regulation of land use but "an out-and-out plan of extor- tion." J.E.D. Associates, Inc. r. Atkinson, 121 N.H. 581, 584, 432 A.2d 12, 14-15 (1981); see Brief for United States as Ami- cus Curiae 22, and n. 20. See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S., at 439, n. 17, 102 S.Ct., at 3178, n. 17.5 III The Commission claims that it concedes as much, and that we may sustain the condition at issue here by finding that it is reasonably related to the public need or burden that the N ollans' new house creates or to which it contributes. We can accept, for purposes of discussion, the Commis- sion's proposed test as to how close a "fif' between the condition and the burden is required, because we find that this case does not meet even the most untailored standards. The Commission's principal contention to the contrary essentially turns on a play on the word "access." The :S-ol- lans' new house, the Commission found, nontradeable) de\'elopment re~trictjons. Thus. the imponance of the purpo~e underlying the prohibition not only does not ju.<lify Ihe imposi. tion of unrelated conditions for eliminating the prohibition. but positively militates against the practice. ~( will interfere with "y beach. That in tun shorefront deyelopmel the desire of people :Sollans' house to use ing a "psychological The :S-ollans' new h( process not altogetheJ mission's opinion bu enough to more than the -psychological bar of the public beachE need for more "acces "access" would be al ment that the :s ollar cess" to the beach. [2) Rewriting tho nate tHe play on w( there is nothing to it. to understand how a pIe already on the pl: walk across the :s 01 any obstacles to vie' by the new house. u~derstand how it 1< cal barrier" to usinJ! how it helps to rem gestion on them ca\ the :Sollans' new ho' that the Commissi. permit condition ell exercise' of its land these purposes.6 ( point is consistent \ bv every other co\ the que~tion, with t fornia state courts. 716 F.2d 646, 651-1 hem Erangelical 6. As Justice BRE~~ also argued that tl- house would u'incT< adjacent to public might re~ult in mOl lans and the pubJi boundan'. POST. at rj~k of boundary d: in the right to exc!l; t\'. ::.nd the ce.nstru< f,.' mandatof" dcd: ;o:;e" in ord~r to a can the comtructic family hou~e near ~OLLA:S ". CALIFORNIA COASTAL CO~I'~ Cite as 107 S.Cl. 3141 (1987) 3149 will interfere with "visual access" to the beach. That in turn (along with other shorefront development) will interfere with the desire of people who drive past the ~ollans' house to use the beach, thus create ing a "psychological barrier" to "access." The ~ ollans' new house will also, by a process not altogether clear from the Com- mission's opinion but presumably potent enough to more than offset the effects of the psychological barrier, increase the use of the public beaches, thus creating the need for more "access." These burdens on "access" would be alleviated by a require- ment that the ~ollans provide "lateral ac- cess" to the beach. [2] Rewriting the argument to elimi. nate the play on words makes clear that there is nothing to it. It is quite impossible to understand how a requirement that peo- ple already on the public beaches be able to walk across the ~ollans' property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it lowers any "psychologi- cal barrier" to using the public beaches, or how it helps to remedy any additional con- gestion on them caused by construction of the ~ollans' new house. We therefore find that the Commission's imposition of the permit condition cannot be treated as an exercise of its land use power for any of these purposes.6 Our conclusion on this point is consistent with the approach taken by every other court that has considered the question, with the exception of the Cali. fornia state courts. See Parks 1'. Watson, 716 F.2d 646. 651-653 (CA9 1983); Bethle- hem Erangelical Lutheran Church v. 6. As Justice BRE:\:\A:\ notes. the Commission also argued that the construction of the new house would" 'increase prh'ate use immediately adjacent to public tidelands:" which in turn might result in more disputes between the :\01. lans and the public as to the location of the boundary. Post, at 3155, quoting App. t.2. That risk of boundary di~putes. however, is inherent in the right to exclude others from one's proper. ty, and the cc,r.~truction here can nq"more justi. fy mandalOn' dedication of a soT! of "buffer z'one" in ord~r to a\"oid boundary di~putes than can the cc,nstruction of an addition to a single. family hou~e near a public street. Moreover, a , \: ;;; (. ~ LakeU'ood, 626 P.2d 668, 671-674 (Colo. 1981); Aunt Ha.ck Ridge Estates, Inc. v. Planning Comm 'n, 160 Conn. 109, 117- 120, 273 A.2d 880, 885 (1970); Longboat Key v. Lands End, Ltd., 433 So.2d574 (Fla.App.l983); Pionee1' Trust & Saring Bank r. Jfount Prospect. 22 Ill.2d 375, 380, 176 N.E.2d 799, 802 (1961); Lampton r. Pinaire, 610 S.W.2d 915, 918-919 (Ky.App. 1980); Schu'ing r. Baton Rouge, 249 So.2d 304 (La.App.), application denied, 259 La. 770,252 So.2d 667 (1971); Howard County t'. JJM, Inc., 301 Md. 256, 280-282, 482 A.2d 908, 920-921 (1984); Collis tJ. Bloom- ington, 310 ~finn. 5, 246 N.W.2d 19 (1976); State ex rei. Soland t'. St. Louis County, 478 S.W.2d 363 (Mo.1972); Billings Prop- erties, Inc. r. Yellou'stone County, 144 Mont. 25, 33-36, 394 P.2d 182, 187-188 (1964); Simpson v. Sorth Platte, 206 Neb. 240, 292 N.W.2d 297 (1980); Briar West, Inc. v. Lincoln, 206 Xeb. 172, 291 N.W.2d 730 (1980); J.E.D. A.ssociates t'. Atkinson, supra; Longridge Buildn's, Inc. 1'. Plan- ning Bd. of Princeton, 52 N.J. 348, 350- 351, 245 A.2d 336, 337-338 (1968); Jenad, Inc. 1'. Scarsdale, IS :S.Y.2d 78, 271 N.Y. S.2d 955, 218 X.E.2d 673 (1966); In re MacKall 1'. White, 85 App.Di\'.2d 696, 445 N.Y.S.2d 486 (1981), appeal denied, 56 N.Y.2d 503, 450 :S.Y.S.2d 1025, 435 N.E.2d 1100 (1982); Frank A. nsuini, Inc. 1'. Cran- ston, 107 R.I. 63, 68-69, 71, 264 A.2d 910, 913, 914 (1970); College Station 1'. Turtle Rock Corp., 680 S.W.2d 802, 807 (Tex. 1984); Call 1'. West Jordan, 614 P.2d 1257, 1258-1259 (1:tah 1980); Board of Superri- sors of James City County 1'. Rowe, 216 buffer zone has a boundan' as well. and unless that zone is a "no.man's I';nd" that is off. limits for both neighbors (which is of course not the case here) its creation achieves nothing except to shif1 the location of the boundary dispute further on to the private owner's land. It is true that in the distinctive situation of the :\ollans' property the sea.wall codd be established as a clear demarcation of the public easement. But since not all of the lands to which this land.use condition applies ha\'e such a convenient refer. ence point. the a\'oidar.ce of boundary disputes is. even more obviously than the others, a made. up purpose of the regulation. 3150 10i S('PRE~IE CO('RT REPORTER Va. 128, 136-139, 216 S.E.2d 199. 207-209 (1975); Jordan 1'. .\lenomonee Falls. 28 Wis.2d 608, 61i-618, 137 N.W.2d 442, 44i- 449 (1965), appeal dismissed, 385 ES. 4, 87 S.Ct. 36, 17 L.Ed.2d 3 (1966). See also Littlefield 1'. Alton, 785 F.2d 596, 607 (CA8 1986); Brief for K ational Association of Home Builders et a1. as Amici CU1-iae 9- 16. Justice BREK:s'AK argues that imposi- tion of the access requirement is not irra- tional. In his version of the Commission's argument, the reason for the requirement is that in its absence, a person looking toward the beach from the road will see a street of residential structures including the Nollans' new home and conclude that there is no public beach nearby. If, how- ever, that person SE:es people passing and repassing along the dry sand behind the Kollans' home, he will realize that there is a public beach somewhere in the vicinity. Post, at 3154-3155. The Commission's ac- tion, however, was based on the opposite factual finding that the wa]) of houses com- pletely blocked the view of the beach and that a person looking from the road would not be able to see it at all. App. 57-59. Even if the Commission had made the finding that Justice BREKKAK proposes, however, it is not cE:rtain that it would suffice. We do not share Justice BRE}\. NAN's confidence that the Commission "should have little difficulty in the future in utilizing its expertise to demonstrate a specific connection between provisions for access and burdens on access," post, at 3161, that will avoid the effect of today's decision. We view the Fifth Amendme;t's property clause to be more than a pleading requirement, and compliance with it to be more than an exercise in cleverness and imagination. As indicated earlier, our cases describe the condition for abridge- ment of property rights through the police poweras a "substantial ad\'anc[ing)" of a legitimate State interest. We are inclined to be particularlv cc.reful about the adiec- th'e where the a~tual cOl1Yeyance oiproper, ty is made a condition to the lifting of a land use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation require, ment, rather than the stated police pOwer objective. We are left, then, with the Commission's justification for the access requirement un- related to land use regulation: "Finally, the Commission notes that there are several existing provisions of pass and repass lateral access benE:fits already given by past Faria Beach Tract applicants as a result of prior coast.c.l permit decisions. The access rE:quired as a condition of this permit is part of a comprehensive program to provide con- tinuous public access along Faria Beach as the lots undergo development or rede, velopment." App. 68. That is simply an expression of the Cor;.- mission's belief that the publicinteren wi]l be sen'ed by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Kollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to ad\'ance its "comprehensiye program," if it wishes, by using its power of eminent do- main for this "public purpose," see U.S. Const., Arndt. V; but if it wants an ea.se- ment across the Nollans' property, it mUH pay for it. Rcre1'scd. Justice BREN~A~, with whom Justice ~IARSHALL joins, dissentir.g. Appellants in thi~ case sought to con- struct a new dwelling on their beach lot that would both diminish visual access to the beach and moye pri\'ate deyelopment closer to the public tidelands. The Com. mission reasonably concluded that such "buildout:' both i~di\'iduaJly and cumula- th'ely, threat€ns public access to the shore. It sought to ofiSH this encroachment by obtaining assurance that th€ puulic may walk along the shor(:'jinE: in order to gail! !\OLl I I 1 \ 1 I ; \ , I I ~ , , access to the ocean. ThE an illegitimate exercise of because it maintains tha' sonable relationship bet\\ the development and the' The first problem with that the Court imposes a sion for the exercise o' power that has been d better part of this centt: eyen under the Court"s the permit condition im directly responds to th burden on access crea deyelopment. Finally. factors deemed most si! analysis makes clear th~ action impJi<:ates none ( derlying the Takings ( has thus struck down reasonable effort to re: development along the behalf of landowners claim that their reas. have been disrupted. short,giy€n appellant expense of the public. The Court'S conc1us condition imposed on 1. See also l1'illiam.<o:: \,'.5. 453. 4~7-48~, I~ L.Ed. 5f3 (1955) {"{T] every res?ect logicaliy to be constitutional. 1; an ed al h"nd for COfT be Ihouphl Ihat Ihe r; sure wa~ a rational \': Brire Lighring, Inc. ~'. 423, i2 S.Ct. 405. ~07. ~ recent decisions make as a super,Jegislalu~e legislation nor to dc, which it expresses ( fare. .., is)late legis1; authorit\. to cxperimc they ar~ entitled to ti public welfarc"). SOlwithsumc!ing Ir ante, at -, n. :. o\. the threshold ques:io the polke power i~ k As we stated 0\"('1' 2~ uikir.fS challenge 10 ~OLLA~ ", CALIFOR~lA COASTAL CO~I'~ Cite as 107 S.Ct. 3141 (1987) 3151 ;',('e{'~s to the ocean. The Court finds this ;,n megitimate exercise of the police power, bd:ause it maintains that there is no rea. ;:(,nable relatiomhip between the effect of thE' oE:\"elopment and the condition imposed. The first problem with this conclusion is that the Court imposes a standard of preci. ~:i('n for the exercise of a St.ate's police ;.()\\'er that has been discredited for the \'.:lter part of this century. Furthermore, ,,\'en under the Court's cramped standard, l~',e permit condition imposed in this case directly responds to the specific type of hurden on access created by appel1ants' dt'\"elopment. Final1y, a re\"iew of those fa ('tors deemed mOEt significant in takings <<na1ysis makes clear that the Commission's ;:,('tion implicates none of the concerns un- f.\:'Tlying the Takings Clause. The Court h~.R thus struck down the Commission's reasonable effort to respond to intensified cE-\'E'lopment along the California coast, on t.t-half of landowners who can make no e:aim that their reasonable expectations h;:;\'f been disrupted. The Court has. in !;!".ort, gh'en appel1ants a windial1 at the (-xpEnE€ of the public. The Court's eonc1m;ion that the permit (('lldition imposed on appeilants is unrea. .~ 1. See also Wiliial1l.<vl1 \'. La Optical Co., 348 t.~.S. ~S3. 487-488, is S.Ct. ~61. 4t-4-465, 99 L.Ed. 5t-3 (1955) r'lT)he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might ':le though that the particular legislative mea. sure was 3 rational \\'a..' :0 correCI it"); Da',,- Srilf Lig!w'ng, Inc. \'. .\1issouri, 342 r:s. 42'1. 41':', n S.C!. 405, ~07. 96 L.Ed. ~~9 (1952) ("Our recent decisior.s make it plain that we do not sit as a super.legislatu:-e 10 wci~h the wisdom of legislation nor 10 decide whe:her the policy which it expresses offends the public wel- fare.... [SJtate JegisJ;;tures have constitutional authority to experiment with new techniques; they are entitled to their own nandard of the public wellort'''). ~otwithstarlding the su~gestion otherwise. "..:e, at _, n. 3, (.ur st"ndard for reviewir.g :he threshold qucs:ion whether ;;n exercise of the police powcr is legitima:e is a un.ir~rm one. As we stated o..er 25 years a~o irl addressing a :..kings challenge 10 gonrnment regulation: sonable cannot withstand analysis. First, the Court demands a degree of exactitude that is inconsistent with our standard for reyiewing the rationality of a state's exer. cise of its police power for the welfare of its citizens. Second, even if the nature of the public access condition imposed must be identical to the precise burden on access created by appellants, this requirement is plainly satisfied. A There can be no dispute that the police power of the States encompasses the au- thority to impose conditions on private de. velopment. See, e.g., Agins 1'. Tiburon, 447 U.S. 255, 100 S.Ct, 2138, 65 L.Ed.2d 106 (1980); Penn Central Transportation Co. v. Sell' York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Gorieb v. Fox. 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1927). It is also by now commonplace that this Court's re\"iew of the rationality of a State's exercise of its police power de- mands only that the State "could rational- ly ha~'e decided" that the measure adopted might achieve the State's objective. Minnesota 1'. Clot'er Leaf Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 725, 66 L.Ed.2d 659 (1981) (emphasis in origina]).) In this case, California has employed its "The term 'police power' connotes the time. tested conceptional limit of public encroach. ment upon private interests. Except for .he substitution of the familiar standard of 'reason- ableness: Ihis Court has generally refrained from announcing any specific criteria. The classic statement of the rule in Lawton \'. Slu/e, 152 l'.S. 133, 137 [14 S.C!. 499, SOl, 38 L.Ed. 385) (1894), is slill \'alid today: .... [1)t mUst appear, first, that the interests of the public.. . require [government) intereference; and, sec. ond, that the means are reasonably necessary for the accomplishment of the 'purpose, and not unduly oppressive upon individuals.' Even this rule is not applied with strict precision, for this Court has often said that 'debatable questions as to reasonableness are not for the courts but for the legislature ...' E.g., Sproles \'. Binford, 286 U.S. 374, 388 [52 S.Ct. 581. SF-5, 76 L.Ed. 1167) (1932)." Goldb/att \'. Hempstfad, 369 11.S. 590, 594-595, 82 S.Ct. 9F-i, 990-991, 8 L.Ed.2d 130 (J 962). See also id., at 596, 82 S.C!. at 991 (upholding regulation from takings challenge with citation , 3152 lOi SLPREME COURT REPORTER ~I police power in order to condition develop- ment upon preser.ation of public access to the ocean and tidelands. The Coastal Com- mission, if it had so chosen, could have denied the ~ollans' request for a develop- ment permit. since the property would have remained economically viable without the requested new development.2 Instead, the State sought to accommodate the Nollans' desire for new dewlopment, on the condi- tion that the development not diminish the overall amount of public access to the coastline. Appellants' proposed develop- ment would reduce public access by re- stricting visual access to the beach, by con- tributing to an increased need for commu- nity facilities, and by moving private devel- opment closer to public beach property. to, inler alia, Cnired Srares v. Carolene PrOdUCIS, 304 V.S. 144, 1:4, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938), for proposition that "exercise of police power will be upheld if any state of facts either known or which could be reasonably assumed affords support for it"). In Connoll)' v. Pellsioll Belicfir GuaranI)' Corp., 475 U.s. -, 106 S.Ct. 10i8, 89 L.Ed.2d 166 (1986), for in. stance, we re\'iewed a takinl!s challenl!e to statu. tory provisions that had be~n held to-be a legit. imate exercise of Ihe police power under due process analysis in Pension Be/~efir Corp. v. R..4. Gray & Co., 467 r.S. i17, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). Gra.", in lurn, had relied on User)' ,'. Turner Elkhonz Minillg Co., 428 U.S. 1. 96 S.C!. 2882, 49 L.Ed.2d 752 (1976). In reject. ing the I;;kings arg-.Jme:1t that Ihe provisions were not wilhin Congress' regulalOry power, the Court in Connolly staled, "All hough both Gray and Turner Eikhom were due process cases, it would be surprising indeed to discover now that in both cases Coneress unconslilutionally had taken the assets ~f the employers the;e in. volved." 475 r.S" al -, 106 S.C!. at 1025. Our phraseology may differ slighlly from case to case-e,g., reg-.Jlation must "substanlially ad. vance," Agins ". Tiburon, 447 11.s. 255, 260, 100 S.Ct. 2138, 2141. 65 L.Ed.2d 106 (1980) or be "reasonably necessary 10" Penll Cenlral Trans. porrarioll Co. ". Sew )'ork Cily, 438 U.S. 104, 127, 98 S.CI. 2646, 2660, 57 L.Ed.2d 631 (1978) the government's end. These minor differences cannot, howe\fr, obscure the fact that the in. qui~' in each case is the same. Of course, gOt crnment aClion may be a valid exercise {of the police power and still violote specific prc\'isions of Ihe Consti:u:i.P.l;l, Justice SCALIA is ccnainly correct in observing Ihat chalkngcs founded upon these provisions are The Commission sought to offset this dimi. nution in access, and thereby preserve the overall balance of access, by requesting a deed restriction that would ensure "later. al" access: the right of the public to pass and repass along the dry sand parallel to the shoreline in order to reach the tidelands and the ocean. In the expert opinion of the Coastal Commission, development condi. tioned on such a restriction would fairly attend to both public and private interests. The Court finds fault with this measure because it regards the condition as insuffi. ciently t2ilored to address the precise type of reduction in access produced by the new development. The ~ollans' development blocks visual access, the Court tells us, while the Commission seeks to preserve lateral access along the coastline. Thus, it concludes. the St2tE Such a narrow conCl however, has k,ng sin. a judicial arrogation I t\'. "To make scienti ~n of constitutional p< ject the State to an i: hostile to the basi Government." Sprc U.S. 374, 3S8, 52 S.( 1167. (1932), Cf. h Coal Assn. t'. DeBe71 -, n. 21, 107 S.Ct L.Ed.2d 472 (l9Si) ( has never been read or the courts to calcu individual has suifer cess ot ,the benefit: Court long ago del various forms of ref property: "Each interferes i' to the . same exit general right of d erty. All rest for the same reasons recent times as increase and conc in urban comnl' changes in the ex the problems of J legisjatures and with the situation point. are better c to det.ermine tho and degree of ! new and perple): and their conclm turbed by the co trary and unrea pra, 2i4 '[,S., ;;. (citations omine( The Comr.jission state constitution serve overall public coastline, Furthe: participation in th. ment Act prog-r;:.;rr cise effectively [it coastal zone throu re\iewed under different standards. AllIe, at Our consideration of factors such as those identified in Penn Cenlral, supra, for in. stance, provides an anal~'ical framework for protecting the \'alues underlying the Takings Clause, and other distinctive approaches are uti. Iized 10 give effect to other constitutional provi. sions. This is far different, however, from the use of different standards of review to address the threshold issue of the rationality of govern. ment action. 2. As this Coun declared in L'nired Srares ,'. Ri,'. erside Ba,'~'ie'," Homes, Inc., 474 U.s. 121, 127, 106 S.C1.' 455, 459, 88 L.Ed.2d 419 (1985): "A requirement that a person obtain a permit before engaging in a certain use of his or her propeny does not itself 'take' the property in anv sense: after all, the very existence of a pe~mit system implies Ihat pe'rmission may be granted, lea\'ing the landowner free to use the property as desired. !\loreo\'er, even if the per. mit is denied, there mav be other \'iable uses available to the owner. 'Onlv when a permit is denied and the effect of the denial is to pre\'ent 'economicallv \'iable' use of the land in question can it be said that a taking has occurred." We also stated in Kaiser Aell1a ,'. Cllired Srares, 444 V.S. 164, 179, 100 S.C!. 383. 392, 62 L.Ed.2d 332 (1979), with respect to dredging 10 create a pri\"ale marina: "We have not Ihe slightest doubt that the Government could have refused to allow such dredging on the ground that it would have im. paired na\'igation in the bay, or could ha\~ condili(..ned its appro\'al of Ihe dredging on PCIl' ticners' agreement to comply with various mea. sures that it deemed appropriate for the pro' motion of na\'igation." ~OLLA~ ", CALIFORNIA COASTAL co:\r~ Cite all 107 S.Ct. 3141 (1987) 3153 ...~. condudes. the State acted irrationally. Such a narrow <:'onception of rationality, !10we\'er, has long ~ince been discredited as ? judicial arrogation of legislative authori. ty. "To make scientific precision a criteri- on of constitutional power would be to sub- jfct the State to an intolerable supervision h0stile to the ba~ic principles of our G0vernment." Sproles 1:. Binford, 286 ~_'.S. 374, 388, 52 S.Ct. 581, 585. 76 L.Bd. 116, (1932). Cf. Keystone Bituminous Coal Assn. 1'. DeBenedictis, 4801.:.5. -, _, n. 21, 107 S.Ct. 1232, 1245, n. 21, 94 L.Ed.2d 472 (19S,) ("The Takings Clause has never been read to require the States or the courts to calculate whether a specific individual has ~uffered burdens .,. in ex- ('<"S5 of the benefits receh'ed"). As this Court long ago declared with regard to \-arious forms of reHriction on the use of j.'roperty: "Each interferes in the same way, if not to the same ext.ent, with the owner's general right of dominion over his prop- erty. All rest for their justification upon the same reasons which have arisen in recent times as a result of the great increase and cC'!1centration of population in urban communities and the vast changes in the extent and complexity of the problems of modern city life. State legisjatures and city councils. who deal with the situation from a practical stand- point, are better qualified than the courts to determi!le the rJecessity, character, and degree of regulation which these new and perplexing conditions require; and their conclusions should not be dis- turbed by the courts unle~s clearly arbi- trary and unreasonable." Gorieb. su- pra. 2/4 l.".S.. ;;t 608, 47 S.Ct., at 677 (citations omittec). The Commissi(ln is charged by both the f'tat.e c('nstitution and legislature to pre- serve overall public access to the California coastline. F-.;rthermore, by \-irtue of its participation in the Coastal Zone ~1anage- ment Act profr<.rn. the State must,....exer. cise effec',iYely [:ts) responsibilities in the coastal zone thrc.ugh the de\'elopment and ..; .. .: implementation of management programs to achieve wise use of the land and water resources of the coastal zone," 16 D.S.C. ~ 1452(2), so as to provide for, inter alia. "public access to the coas[t) for recreation purposes." ~ 1452(2)(D). The Commission has sought to discharge its responsibilities in a flexible manner. It has sought to balance prh.ate and public interests and to accept tradeoffs: to permit development that reduces access in some ways as long as other means of access are enhanced. In this case, it has det.ermined that the ~ 01- lans' burden on access would be offset by a deed restriction that formalizes the public's right to pass along the shore. In its in. formed judgment, such a tradeoff would preserve the net amount of public access to the coastline. The Court's ir.sistence on a precise fit between the forms or burden and condition on each individual parcel along the California coast would penalize the Commission for its flexibility, hamper. ing the abiiity to fulfill its public trlAst mandate, The Court's demand for this precise fit is based on the assumption that private land- owners in this case posse!:'s a reasonable expectation regarding the use of their land that the public has attempt.ed to diHupt. In fact, the situation is precisely the re- verse: it is private landowners who are the interlopers, The public's expect.ation of ac- cess considerably antedates any private de- velopment on the coast. Article X, Section 4 of the California Constitution. adopted in 1879, declares: ..~ 0 indh'idual, partnership. or corpora- tion, claiming or possessing the front.age or tidal lands of a harbor. bay, inlet, estuary, or other navigable water in this State, shail he permitted to exclude the right of way to ;my such water wheneYer it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shaH enact slAch laws <.s wi11 five the most liberal construction to this provision. so that <.('cess to the navig<.bJe wat"rs (If ~ ~ 3154 lOi Sl'PREl\1E COURT REPORTER this Stat.e shall always be attainable for the people thereof." It is therefore private landowners who threaten the disruption of settled public expectations. Where a private landowner has had a reasonable expectation that his or her property will be us~d for exclush'ely private purposes, the disruption of this ex- pectation dictates that the government pay if it wishes the property to be used for a public purpose. In this case, however, the State has sought to protect public expecta- tions of access from disruption by private land use. The State's exercise of its police power for this purpose deserves no less deference than any other measure designed to further the welfare of state citizens. Congress expressly stated in passing the CZ!\1A that "[i]n light of competing de- mands and the urgent need to protect and to give high priority to natural systems in the coastal zone, present St3.te and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate:' 16 U.S.C. ~ 1451(h). It is thus puzzling that the Court characterizes as a "non-land.use jus- tification," ante, at -, the exercise of the police power to "'provide continuous public access along Faria Beach as the lots undergo development or redevelopment.' " Ibid. (quoting App. 68). The Commission's determination that certain types of develop- ment jeopardize public access to the ocean, and that such development should be condi. tioned on preservation of access, is the essence of responsible land use planning. The Court's use of an unreasonably de. manding standard for determining the ra- tionality of state regulation in this area 3. The list of cases cited by the Court as support for its app~oach, anTe, at -, includes no in- stance in which the State sought to vindicate pre-existing rights of access to navigable water, and consists principally of cases involving a requirement of the dedication of land as a con- cition of subdivision approval. Dedication, of course, requires the surrender of ownership of property rather than, as in this case, a mere rest~iction on its use. The only case pertaining to beach access among those cited by the Court is .Hackall ,'. 11 11ilf, 85 App.QiT.2d 696, 445 thus could hamper innovath'e efforts to preserve an increasingly fragile national resource.3 B Even if we accept the Court's unusual demand for a precise match between the condition imposed and the specific type of. burden on access created by the appellants, the State's action easily satisfies this re- quirement. First, the lateral access condi. tion serws to dissipate the impression that the beach that lies behind the wall of homes along the shore is for private use only. It requires no exceptional imagina- tive powers to find plausible the Commis- sion's point that the average person pass- ing along the road in front of a phalanx of imposing permanent residences, including the appellants' new home, is likely to con- clude that this particular portion of the shore is not open to the public. If, how- ever, that person can see that numerous people are passing and repassing along the dry sand, this conveys the message that the beach is in fact open for use by the public. Furthermore, those persons who go down to the public beach a quarter-mile away will be able to look down the coast- line and see that persons have continuous access to the tidelands, and will obseI'\'e signs that proclaim the public's right of access over the dry'sand. The burden pro- duced by the diminution in visual access- the impression that the beach is not open to the public-is thus directly alleviated by the provision for public access over the dry sand. The Court therefore has an unrealis- tically limited conception of what measures could reasonably be chosen to mitigate the N.Y.S.2d ~S6 (19S1). In that case, the court found that a subdh'ision application could not be conditioned upon a declaration that the land. owner would not hinder the public from using a trail that had been used to gain access to a bay. The trail had been used despite posted warnings prohibiting passage, and despite the owner's reo sistance to such use. In that Cllse, unlike this one, neither the state constitution, state statute, administrative practice, nor the conduct of the landowner operated to create any reasonable expectation of a right of public access. ~I I I I I I burden produced by a access. The second flaw in of the fit between bl more fundamental. that the only burden al Commission was cc of visual access to thl rect.4 The Com miss in its report in suppo tion that "[t)he Com applicants' proposec present an increase increase in pril'ate and that this impact lic's ability to travl shorefront." App. € It deelared that th public' may get th beachfront is no Ion use" would be "dt nature of pril'ate cent to the public /.( 'block' of increased pacting the visual front." ld., at 59 The record prep~ is replete .with refl public access alon~ from the seaward development alon~ high tide line is cor Commission obser Faria Beach shore] year depending or panying storms, ~ ways able to tray th~ mean high tid. result, the bOUl owned tidelands a is not a stable seawall is locate< high water lin~." 4. This may be bec at argument conti condition would s access, b\' off sell resulting "from th blocking the pub State's position n 'C.7A sel-58 ~OLLA~ ". CALIFOR~lA COASTAL co~r~ CIte as 107 S.C.. 3141 (1987) 3155 burden produced by a diminution of visual access. The second flaw in the Court's analysis of the fit between burden and exaction is more fundamental. The Court assumes that the only burden with which the Coast- al Commission was concerned was blockage of yisual access to the beach. This is incor- rect.4 The Commission specifically stated in its report in support of the permit condi- tion that "[t)he Commission finds that the applicants' proposed deyelopment would present an increase in yiew blockage, an increase in pril'ate use 0/ the shore/ront, and that this impact would burden the pub- lic's ability to trayerse to and along the shorefront." App. 65-66 (emphasis added). It declared that the possibility that "the public may get the impression that the beachfront is no longer ayailable for public use" would be "due to the encroaching 1lature 0/ prirate use immediately adja- cent to the public use, a.$ u'ell a.s the visual 'block' of increased residential build-out im- pacting the visual quality of the beach- front." Id., at 59 (emphasis added). The record prepared by the Commission is replete with references to the threat to public access along the coastline resulting from the seaward encroachment of private deyelopment along a beach whose mean high tide line is constantly shifting. As the Commission obseT\'ed in its report, "The Faria Beach shoreline fluctuates during the year depending on the seasons and accom- panying storms, and the public is not al- ways able to traverse the shoreline below the mean high tide line." Id" at 6i. As a result, the boundary between publicly owned tidelands and prh'ately owned beach is not a stable one, and "[t)he existing seawall is located yery near to the mean high water line." Id., at 61. When the 4. This may be because the State in its briefs and at argument contended merely that the permit condition .....ould ser\'e to preser\'e o\'erall public access, by offselling the diminution in access resulting from the project, such as, inler alia, blocking the public's \'iew of the be-acn. The State's position no doubt reflected the reason, 10i.. SCI-~e beach is at its largest, the seawall is about 10 feet from the mean high tide mark: "[ d)uring the period of the year when the beach suffers erosion, the mean high water line appears to be located either on or beyond the existing seawalL" Ibid. Ex- pansion of private de\'elopment on appel- lants' lot toward the seawall would thus "increase private use immediately adjacent to public tidelands, which has the potential of causing adverse impacts on the public's ability to trayerse the shoreline." Id., at 62. As the Commission explained: "The placement of more private use adja- cent to public tidelands has the potential of creating conflicts between the appli- cants and the public. The results of new private use encroachment into bound- ary /buffer areas between private and public property can create situations in which landowners intimidate the public and seek to pre\'ent them from using public tidelands because of disputes be- tween the .two parties over where the exact boundary between private and pub- lic ownership is located. If the appli- cants' project would result in further sea- ward encroachment of priyate use into an area of clouded title, new private use in the subject encroachment area could result in use conflict between pri\'ate and public entities on the subject shorefront." Id., at 61-62. The deed restriction on which permit ap- proval was conditioned would directly ad- dress this threat to the public's access to the tidelands. It would provide a formal declaration of the public's right of access, thereby ensuring that the shifting charac- ter of the tidelands, and the presence of private deyelopment immediately adjacent to it, would not jeopardize enjoyment of able assumption that the Court would e\'aluate the rationality of its exercise of the police power in accordance with the traditional standard of review, and that the Court would not allemptto substitute its judgment about the best way to presep'e o\'eraJl public access to the ocean at the Faria Family Beach Tract. ~ \ \ 3156 107 SuPREME COuRT REPORTER that right.s The imposition of the permit condition was therefore directlv related to the fact that appellant's development would be "located along a unique stretch of coast where lateral access is inadequate due to the construction of private resi- dential structures and shoreline protecth-e devices along a fluctuating shoreline." Id., at 68. The deed restriction was crafted to deal with the particular character of the beach along which appellants sought to build, and with the specific problems cre- ated by expansion of development toward the public tidelands. In imposing the re- striction, the State sought to ensure that such development would not disrupt the historical expectation of the public regard- ing access to the sea.6 The Court is therefore simply wrong that there is no reasonable relationship between the permit condition and the specific type of burden on public access created by the appellants' proposed development. Even were the Court desirous of assuming the added responsibility of closely monitoring the regulation of development along the California coast, this record reveals ration- al public action by any conceivable stan- dard. II The fact that the Commission's action is a legitimate exercise of the police power 5. As the Commission's Public Access (Shoreline) Interpretative Guidelines state: "[T)he provision of lateral access recognizes the potential for conflicts between public and pri. vate use and creates a type of access that allows the public to move freely along all the tidelancs in an area that can be c1earl\' delineated and distinguished horn private us'; areas.... Thus the 'need' cetermination set forth in P[ublic) R[esources) C[ode) 30212(a)(2) should be mea. sured in terms of providing access that buffers public access to the tidelands from the burdens generated on access by private development." App. 358-359. 6. The Court suggests that the risk of boundary disputes "is inherent in the right to exclude others from one's property," and thus cannot serve as a purpose to support the permit condi. tion. A,lIe, at 3162, n. 14. The Commission sought the deed restriction, hOWeH'T,-not to ad- dress a generalized problem inherent in any does not, of course, insulate it from a tak. ings challenge, for when "regulation goes too far it will be recognized as a taking." Pennsyl1'01lia Coal Co. v. Mahon, 2601.7.S. 393, 415, 43 S.Ct. 158, 160, 6i L.Ed. 322 (1922). Com'entional takings analysis un. derscores the implausibility of the Court's holding, for it demonstrates that this exer. cise of California's police power implicates none of the concerns that underlie our tak- ings jurisprudence. In reviewing a Takings Clause claim, we have regarded as particularly significant the nature of the governmental action and the economic impact of regulation, espe- cially the extent to which regulation inter- feres with investment-backed expectations. Penn Central, 438 U.S., at 124, 98 8.Ct., at 2659. The character of the government action in this case is the imposition of a condition on permit approval, which allows the public to continue to have access to the coast. The physical intrusion permitted by the deed restriction is minimal. The public is permitted the right to pass and re-pass along the coast in an area from the seawall to the mean high tide mark. App. 46. This area is at its u.'j'dest 10 feet, id., at 61, which means that eren u'ithout the permit condition, the public's right of access per- mitsit to pass on average within a few feet system of property, but to address the particular problem created by the shifting high-tide line along Faria Beach. Unlike the typical area in which a boundar\" is delineated reasonablv clearly, the very pr~bjem on Faria Beach is th;t the boundary is not constant. The area open :0 public use therefore is frequently in question, and, as the discussion, supra, demonstrates, the Commission clearly tailored its permit condi- tion precisely to address this specific problem. The Court acknowledses that the ~ollans' sea- wall could pro\"ide "a clear demarcation of the public easement," and thus avoid merely shif1- ing "the location of the bc,undarydispute fur- ther on to the ]:'rivate owner's land." /bid. It nonetheless faults the Commission because ev- ery property subject to regulation may not h,l.\"e this feature. This case, however, is a challenge to the permit condition as applied to tile .....olle'lS' propaty, so the presence or absence of seawalls on other propeny is irrelevant. 1 i. ~ of the seawall. Pas foot high rocky sea" pellants even less vis passage along the l: out on the beach. such passage is eve sion resulting from t of a sidewalk in fron exactions which ar. tions on approval C thermore, the high t out the year, movinl seawall, so that pul tion of the year wo\ or would not occur I Finally, although tl authority to pro,-id active recreational chose> the least iI mere right to pass: As this Court mal Shopping Center 83, 100 S.Ct. 203~ (1980), physical ac, in itself creates n does not "unreasOl use of [the) pro} make no tenable enjoyment of theil diminished by the pass and re-pass seawall beyond w located. 7. See, e.g., Cit:. of Kelle)' Realt)' &- B, Ct.App.l970); Alle li8 N.W. 27 09: Kelle\', Subdivisio and Guarantees: and Contemp.L. ; 8, The Commissiol Guidelines both il area of passage, ' tional use of the 1 that it ma\" be ne for Jess th~n the I along the dry sar to "protect the pr tv owners." API advice in selecti may be permim "Pass and Rtp' straints of the s; :\OLLAN v. CALlFOR:\IA COASTAL COM':\ Clle all 107 S.Ct. 3141 (1987) 3157 of the seawall. Passage closer to the 8- foot high rocky seawall will make the ap- pellants eyen less yisible to the public than passage along the high tide area farther out on the beach. The intrush'eness of such passage is eyen less than the intru- sion resulting from the required dedication of a sidewalk in front of priyate residences, exactions which are commonplace condi- tions on approyal of deYelopment.~ Fur- thermore, the high tide line shifts through- out the year, mo\'ing up to and beyond the seawall, so that public passage for a por- tion of the year would either be impossible or would not occur on appellant's property. Finally, although the Commission had the authority to proYide for either passiye or actiye recreational use of the property, it chose the least intrusiye alternatiye: a mere right to pass and repass. ld., at 370.@ As this Court made clear in PruneYard Shopping Center 1'. Robins. 447 U.S. 74, 83, 100 s.et. 2035, 2042, 64 L.Ed.2d 741 (1980), physical access to priyate property in itself creates no takings problem if it does not "unreasonably impair the yalue or use of [the] property." Appellants can make no tenable claim that either their enjoyment of their property or its yalue is diminished by the public's ability merely to pass and re-pass a few feet closer to the seawall beyond which appellants' house is located. 7. See. e.g., CilY of Bellefor-taine .....eighbors v. J.J. Kelley ReallY & Bldg. Co., 460 S.W.2d 298 (!l10. Ct.App.1970); Allw \'. Stockwell, 210 !l1ich. 488. 178 ~.w. 27 (1920). See generally Shultz &: Kelley, Subdi\'ision hnprovement Requirements and Guarantees: A Primer, 28 Wash.U.J.t:rban and Contemp.L. 3 (19S:). 8. The Commission aCled in accordance with its Guidelines both in determining the width of the area of passage, and in prohibiting any recrea. tional use of the propeny. The Guidelines Slale lhat il may be necessary on occasion to provide for less than the normal 2:i-foot wide accesswa\' along the dry sand when this may be necessar;' 10 "protectlhe pri\'acy righls of adjacent proper- lY owners," App. 363. They also provide lhis advice in selecling Ihe type of public use that may be permilled: "Pa.ss a"d RCpCS5. Where topographic con. straints of the me make use",.of the beach dan- Pruneyard is also releyant in that we acknowledged in that case that public ac- cess rested upon a "state constitutional . . . pro\;sion that had been construed to create rights to the use of priyate property by strangers." ld., at 81, 100 S.Ct., at 2041. In this case, of course, the State is also acting to protect a state constitutional right. See supra, at - (quoting Article X, Section 4 of California Constitution). The constitutional proyision guaranteeing public access to the ocean states that "the Legislature shall enact such laws as will give the most liberal construction to this provision so that access to the nayigable waters of this State shall be always attain- able for the people thereof." Cal. Const., Art. X, ~ 4 (Supp.1987) (emphasis added). This provision is the explicit basis for the statutory directive to provide for public access along the coast in new development projects, Cal.Pub.Res.Code Ann. ~ 30212 (1986), and has been construed by the state judiciary to permit passage over private land where necessary to gain access to the tidelands. Grupe r. California Coastal Comm 'n, 166 Cal.App.3d 148, 1/1-1/2, 212 Cal.Rptr. 578, 592-593 (1985). The physical access to the perimeter of appellants' prop- erty at issue in this case thus results direct- ly from the State's enforcement of the state constitution. gerous. where habitat values of lhe shoreline would be adversely impacted by public use of the shoreline or where the accessway may en- croach closer than 20 feet to a residential struc- ture, the accessway may be limited to the right of the public to pass and repass along the access area. For the purposes of these guidelines. pass and repass is defined as the right to walk and run along the shoreline. This would pro\'jde for public access along the shoreline but would not allow for an\' additional use of the access- way. Because this severely limits the public's ability 10 enjoy the adjacent state owned lide. lands by restricting the potential use of the access areas, this form of access dedication should be used only where necessary to protect the habitat values of the site, where topographic constraints warrant the restriction. or where it is necessary to protect the pri\'acy of the land. owner," Jd., at 370. 3158 10; SUPRE~IE COURT REPORTER Finally, the charact.er of the regulation in this case is not unilateral goyernment ac- tion, but a condition on approyal of a deyel- opment request submitted by appellants. The State has not sought to interfere with any pre-existing property interest, but has responded to appellants' proposal to inten- sify de,'elopment on the coast. Appellants themseh'es chose to submit a new de,'elop- ment application, and could claim no prop- erty interest in its appro\'al. They were aware that apPl'o\'al oi such deyelopment would be conditioned on presen'ation of adequate public access to the ocean. The State has initiated no action against appel- lants' pro).Jeny: had the ~ollans' not pro- posed more intensi\'e de\'elopment in the coastal zone, they would ne\'er ha\'e been subject to the proYision that they chal. lenge. Examination of the economic impact of the Commission's action reinforces the con- clusion that llO iaking has occurred. AI. lowing appel!ants to intensify deyelopment along the co&.st in exchange for ensuring public access to the oc€'an is a <:lassic in- stance of go\'ernment action that produces a "reciprocity of adyantage." Pen?l-tiyha- nia Coal, supra, :260 1:.S., at 415, 43 S.Ct., at 160. AppeHants h<.\'e been allowed to replace a o;;e-story 521-square-ioot beach home with a two-story 1,6i4-square-foot residence and an att.acDt'd tWO-car garage, resulting in de\'elopmem coyering 2,464 square feet (of the lot. Such deyelopment ob\'iously significantly increases the \'alue of appellants' prOpHty; aplJellants make no contention that this increase is offset by any diminution in \,a]ue resulting from the deed restrictiun, much less that the restric- tion m:ide the property less \'aluable than it would haye been without the new construc- tion. FurthHmore. uppe!1ams gain an ad- ditional benefit from the C{lmmission's p~r- mit condition program. They are able to walk along the beach beyond the confines of their own property only because the 9. At the time Df the S'C'lIans' permit application. 43 of the permit rC4ue~ts fe.r de\;:It'pment along the Faria Beach had been conditioned on at-cd Commission has required deed restrictions as a condition of approying other new beach deYelopments.~ Thus, appellants benefit both as priyate landowners and as members of the public from the fact that new dew:lopment permit requests are Con- ditioned on presen'ation of public access. Ultimately, appellants' claim of economic injury is flawed because it rests en the assumption of entitlement to the full yalue of their new deyelopment. Appellants sub- mitted a proposal for more intensiye de\'el- opment of the coast, which the Commission was under no obligation to approye, and now argue that a regulation designed to ameliorate the impact of that deyeiopment depriyes them of the full \'alue of their improyements. Eyen if this non'l claim were somehow cognizable, it is not signifi- cant. "[T]he interest in anticipated gains has traditionally been yiewed as less com- pelling than other property-related inter- ests." Andrus t'. Allard, 444 L.S. ~11, 66, 100 S.Ct. 318, 327, 62 L.Ed.2d 210 (1979). With respect to appellants' il1Yenment- backed expectations, appeilants can mah~ no reasonable ciaim to any expect.ation of being able to exclude members of the pub- lic from crossing the edge of their propt'rty to gain access to the ocean. It is axiotnat- ic, of course, that state law is the source of those Hrands that constitute a prcoperty owner's bundle of prC'peny rights. ''[.~Js a general proposition[.] the law of real prop- erty is, under our Constitution, left to the indiyidual Stat~s to de\'elop and adminis- ter." Hughes 1'. Washington. 389 U.S. 290, 295, 88 S,Ct. 438, 441, ]9 L.Ed.2d 530 (196,) (Stewart, J., concurring). See aiso Borax Consolidated 1'. Los Angeles, 296 U.S. 10, 22, 56 S.Ct. 23, 28, SO L.Ed. 9 (1935) ("Rights and interests in the tide- land, which is subject to the soyereignty oi the ~tate, are matters of local law"). In this ca:c:€, the state comtitution explititly states that no one possessing the "front- age" of any "na\'igable water in this State, shall be permitted wa~' to such watel for any public pur X, fi 4. The state that, save for eXCE "[p)ublic access f roadway to the ! coast shall be pro\ projects." Cal.Pu (986). The Coas tatiye Guidelines ment of the CO! and statutory dut~ new coastline de\ upon provisions e cess to the ocean. of appellants' per sion had condition for 'Coastal new ( Family Beach Tl deed restrictions along the shore. Faria family had since the early I "the Faria family ing the Nollans) public use of tt Tract, so long as pass and re'pass shore." ibid. clearly establishE' sion for which a tion simply is not appellants' prope haye never acted state of affairs. that the deed res of a reasonable € their property pt cess to the sea. EYen were w pre-existing ex}). clude, appellant: when requesting that a condition pro\'isionensurn the shore. Thu had no expectat approyal of theiJ ercise any right restrictions ensuring laleral public access alc.ng the shoreline. App. 48. f i~ ~ ~ ( ;:. t f. r ~OLLAN ", CALlFOR~IA COASTAL COM'~ Cite &$ 107 S.Ct. 3141 (1987) 3159 shall be permitted to exclude the right of way to such water whenever it is required for any public purpose." Cal. Const., Art. X, ~ 4. The state Code expressly provides that, save for exceptions not relevant here. "[p)ublic access from the nearest public roadway to the shoreline and along the coast shaJl be provided in new deyelopment projects." CaI.Pub.Res.Code Ann. ~ 30212 (1986). The Coastal Commission Interpre- tative Guidelines make clear that fulfiil- ment of the Commission's constitutional and statutory duty require that approyal of new coastline development be conditioned upon provisions ensuring lateral public ac- cess to the ocean. App. 362. At the time of appeJlants' permit request, the Commis- sion had conditioned all 43 of the proposals for coastal new development in the Faria Family Beach Tract on the provision of deed restrictions ensuring lateral access along the shore. App. 48. FinaJly, the Faria family had Jeased the beach property since the earJy part of this century, and "the Faria family and their Jessees [includ- ing the :s'ollans) had not interfered with public use of the beachfront within the Tract, so long as public use was limited to pass and re-pass lateral access along the shore." ibid. California therefore has clearly estabJished that the power of exclu- sion for which appellants seek compensa- tion simply is not a strand in the bundle of appellants' property rights, and appellants have ne\-er acted as if it were. Given this state of affairs. appeJlants cannot claim that the deed restriction has deprived them of a reasonable expectation to exclude from their property persons desiring to gain ac- cess to the sea. E,'en were we somehow to concede a pre-existing expectation of a right to ex- clude, appellants were clearly on notice when requesting a new dewlopment permit that a condition of approyal would be a pro\'ision ensuring public lat€ral access to the shore. Thus, they surely could have had no eXlJectation that they could obtain approval of their new dewlopmeru and ex- ercise any right of excJusion afterward. In this respect. this case is quite similar to Ruckclshaus 1'. Jfonsant.o Co.. 467 ES. 986, 104 'S.Ct. 2862. 81 L.Ed.2d 815 (1%4). In Monsanto, the respondent had sub- mitted trade data to the EnyironmentaJ Protection Agency (EPA) for the purpose of obtaining registration of certain pesti- cides. The company claimed that the agen- cy's disclosure of certain data in accord- ance with the reJeyant regulatory statute constitut€d a taking. The Court conceded that the. data in question constituted prop- erty under state Jaw. It aJso found, how- eyer, that certain of the data had been submitted to the agency after Congress had made clear that only limited confiden- tiality would be gh-en data submitted for registration purposes. The Court obsen'ed that the statute sen'ed to inform Monsanto of the ,-arious conditions under which data might be reJeased, and stated: "If, despite the data-consideration and data-disclosure provisions in the statute, Monsanto chose to submit the requisite data in order to receive a registration, it can hardJy argue that its reasonable in- vestment-backed expectations are dis- turbed when EPA acts to use or disclose the data in a manner that was authorized by Jaw at the time of the submission." ld., at 1006-1007, 104 S.Ct.. at 2874- 2875. The Court rejected respondent's argument that the requirement that it relinquish some confidentiality imposed an unconstitu- tionaJ c0ndition on receipt of a Government benefit: "[A)s IO:lg as ~1onsanto is aware of the condi~ions under which the data are sub- mitted. and the conditions are rationally related to a It,gitimate Governme:nt inter- est, a voluntary submission of data by an appJicant in exchange for the economic advantages of a registration can hardly be called a taking." ld., at 1007, 104 S.Ct., at 2875. The similarity of this case to JfOIlSGlito is obvious. Appellants WHe aware that stringent reguJation of den,Jopment aJong the Califclrnia eoaH had been in place at 3160 10i SUPREME COURT REPORTER ~Ol ; Ii f least since 19i6. The specific deed restric, tion to which the Commission sought to subject them had been imposed since 1979 on all 43 shoreline new development projects in the Faria Family Beach Tract. App. 48. Such regulation to ensure public access to the ocean had been directly au- thorized by California citizens in 1972, and reflected their judgment that restrictions on coastal development represented "the advantage of lh'ing and doing business in a ch-ilized community." Andrus t'. Allard, 444 U.S. 51, 67, 100 S.Ct. 318, 328, 62 L.Ed.2d 210 (1979), quoting Pennsylvam'a Coal Co. 1'. Mahon, 260 U.S., at 422, 43 S.Ct., at 163 (Brandeis, J., dissenting). The deed restriction was "authorized by law at the time of [appellants' permit] submis- sion," Monsanto, supra, 467 U.S., at 1007, 104 S.Ct., at 2875, and, as earlier analysis demonstrates. supra, at -, was reason- ably related to the objective of ensuring public access. Appellants thus were on notice that new developments would be ap- proved only if provisions were made for lateral beach access. In requesting a new development permit from the Commission, they could have no reasonable expectation of, and had no entitlement to, approval of their permit application without any deed restriction ensuring public access to the ocean. As a result, analysis of appellants' investment-backed expectations reveals that "the force of this factor is so over- whelming .. . that it disposes of the taking question." JfonsGnto, supra, at 1005, 104 S.Ct., at 2874.lO Standard Takings Clause analysis thus indicates that the Court employs its unduly 10. The Court suggests that Ruckelshous v. Mon- S01210, 467 U.S. 9S6, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) is distinguishable, because govern. ment regulation of property in that case was a condition on receipt of a "government benefit," while here regulation takes the form of are, striction on "the right to build on one's own property," which "cannot remotely be described as a 'government benefit.''' AnTe, at 3152, n. 2. This proffe~ed ci$linction is not persuasive. Both Monsanto and the ~oJJans hold property who$e use is subject to regulation; Monsanto may not sell its property witoout obtaining government approval and the ~ollans may not restrictive standard of police power ration- ality to find a taking where neither the character of governmental action nor the nature of the private interest affected raise any takings concern. The result is that the Court invalidates regulation that repre- sents a reasonable adjustment of the bur- dens and benefits of de\'elopment along the California coast. Furthermore, consider mission's action under anal)'sis underscores th viable takings claim. T permits the public onl)' along a narrow strip of closer to a seawall at appellants' property. surely have enjoyed an ue of their property ev. tion, because they hav build a significantly lar garage on their lot. Fir claim the disruption ofT est, both because the) exclude the public un. because, even if they advance notice that ne~ the coast is conditione continued public acces: Fortunately, the Cou ing this application 0 permit program \\ill : ultimate impact eithel particular or the Com general. A preliminar Lands Agent in the St aI's Office indicates th beach at issue in this ( the public. App. 85.11 had not been com pIE appellants' permit app striction was requeste the possibility that th, ing development on I 45. Furthermore, ar Land Agent also indi, had obtained a prescri of Faria Beach frorr ocean. ld., at 86.12 explicitly stated in it Commission on the J: that "no part of this 11. The Senior Land Al mission states that "b~ presently. most,. if. not ward of the eXlstmg Mean High Tide Level domain or so\'ereign App. ~S (emphasis ad 12, The report of the ~ III The foregoing analysis makes clear that the State has taken no property from appel- lants. Imposition of the permit condition in this case represents the State's reasonable exercise of its police power. The Coastal Commission has drawn on its expertise to preserve the balance between private devel- opment and public access, by requiring that any project that intensifies development on the increasingly crowded California coast must be offset by gains in public access. Under the normal standard for re\-iew of the police power, this provision is eminently reasonable. Even accepting the Court's novel insistence on a precise quid pro quo of burdens and benefits, there is a reason- able relationship between the public benefit and the burden created by appellants' de- velopment. The movement of development closer to the ocean creates the prospect of encroachment on public tidelands, because of fluctuation in the mean high tide line. The deed restriction ensures that disputes about the boundary between private and public property will not deter the public from exercising its right to have access to the sea. build new development on their property with. out government appro,'a!. Obtaining such ap- proval is as much a "government benefit" for the Nollans as it is for ~10nsanto. If the Court is somehow suggesting that "the right to build on one's own property" has some privileged natural rights status, the argument is a curious one. By any traditional labor theory of value justification for property rights, for instance, see, e.g., J. Locke, The Second Treatise of Civil Government 15-26 (1947 ed.), Monsanto would have a superior claim, for the chemical formu- lae which constitute its property only came into being by ,"jrtue of ~10nsanto's efforts. '.. , . \ .. ~OLLAN ". CALIFORSIA COASTAL CO!\l'~ Cite u 107 S.Cl. 3141 (1987) 3161 foreclose the public's opportunity to adjudi- cate the possibility that public rights in [appellants'] beach have been acquired through prescriptive use." ld., at 420. With respect to the permit condition pro- gram in general, the Commission should have little difficulty in the future in utiliz- ing its expertise to demonstrate a specific connection between provisions for access and burdens on access produced b)' new development. Neither the Commission in its report nor the State in its briefs and at argument highlighted the particular threat to lateral access created by appellants' de- velopment project. In defending its action, the State emphasized the general point that o1,erall access to the beach had been pre- served, since the diminution of access cre- ated by the project had been offset by the gain in lateral access. This approach is understandable, given that the State relied on the reasonable assumption that its ac- tion was justified under the normal stan- dard of review for determining legitimate exercises of a State's police power. In the future, alerted to the Court's apparently more demanding requirement, it need only make clear that a provision for public ac- cess directly responds to a particular type of burden on access created by a new de- velopment. Even if I did not believe that the record in this case satisfies this require- ment, I would have to acknowledge that the record's documentation of the impact of coastal development indicates that the Commission should have little problem presenting its findings in a way that avoids a takings problem. Nonetheless it is important to point out that the Court's insistence on a precise accounting system in this case is insensi- tive to the fact that increasing intensity of furthermore, consideration of the Com- n~ission's action under traditional takings r.r.~lysis underscores the absence of any \"::,ble takings claim. The deed restriction p~rmits the public only to pass and repass aiong a narrow strip of beach, a few feet closer to a seawall at the periphery of appellants' property. Appellants almost surely have enjo)'ed an increase in the val- ue of their property even with the restric- tic,n, because they have been allowed to b'C.iid a significantly larger new home with garage on their lot. Finally, appellants can c;aim the disruption of no expectation inter- est. both because they have no right to E-xc1ude the public under state law, and because, even if they did, they had full advance notice that new development along the coast is conditioned on provisions for continued public access to the ocean. Fortunately, the Court's decision regard- ing this application of the Commission's i)ermit program will probably have little ultimate impact either on this parcel in particular or the Commission program in gE-neral. A preliminary study by a Senior Lands Agent in the State Attorney Gener- ;;.l's Office indicates that the portion of the beach at issue in this case likely belongs to the public. App. 85.11 Since a full study had not been completed at the time of appellants' permit application, the deed re- striction was requested "without regard to the possibility that the applicant is propos- ing development on public land." ld., at 45. Furthermore, analysis by the same Land Agent also indicated that the public had obtained a prescriptive right to the use of Faria Beach from the seawall to the ocean. ld., at 86.12 The Superior Court explicitly stated in its ruling against the Commission on the permit condition issue that "no part of this opinion is intended to "Based on my past experience and my investiga. tion to date of this property it is my opinion that the area seaward of the revetment at 3822 Pacific Coast Highway, Faria Beach, as well as all the area seaward of the revetments built to protect the Faria Beach community, if not pub. lie owned, has been impliedly dedicated to the public for passi\'e recreational use." Id., at E-6. 11. The Senior Land Agent's report to the Com- mission states that "based on m\' observations, presently, most, if not all of Farfa Beach water. ward of the existing seawalls {lies] below the ~~ean High Tide Le\'el, and would fall in public domain or so\'ereign category of o~"nership." App. E-S (emphasis added). 12. The report of the Senior Land Agent stated: .~ .~~: '~ ':..:~ll; 3162 107 SrPREME COt:RT REPORTER .. ;- development in many areas calls for far- sighted, comprehensh'e planning that takes into account both the interdependence of land uses and the cumulative impact of development.13 As one scholar has noted: "Property does not exist in isolation. Particular parcels are tied to one another in complex ways, and property is more accurately described as being inextrica- bly part ofa network of relationships that is neither limited to, nor usefully defined by, the property boundaries with which the legal system is accustomed to dealing. Frequently, use of any given parcel of property is at the same time effectively a use of, or a demand upon, property beyond the border of the user." Sax, Takings, Private Property, and Pub- lic Rights, 81 Yale L.J. 149, 152 (1971) (footnote omitted). As Congress has declared, "The key to more effective protection and use of the land and water resources of the coastal [is for the states to] develo[p] land and water use programs for the coastal zone, includ- ing unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance." 16 D.S.C. ~ 1451(i). This is clearly a call for a focus on the overall impact of development on coastal areas. State agencies therefore require considerable flexibility in responding to pri- vate desires for development in a way that guarantees the presen'ation of public ac- cess to the coast. They should be encour- 13. As the California Court of Appeals noted in 1985, "Since 19i2, permission has been granted to construct more than 42,000 building units within the land jurisdiction of the Coastal Com- mission. In addition, pressure for development along the coast is expected to increase since approximately 85% of California's population ,li\'es within 30 miles of the coast." Grupe \'. Califomia Coastal Comm"l, 166 CaJ.App.3d 148, 167, n. 12, 212 CaJ.Rptr. 578, 589, n. 12 (1985). See also Coastal Zone Management Act, 16 U.S.C. ~ 1.:5I(c) (increasing demands on coastal zones "have resulted in the loss of living marine resources, wildlife, nutrient-rich areas, perma- nent and adverse ch:mges to ecological systems, decreasing open space for public use, and shore. line erosion"). aged to regulate de\'elopment in the con- text of the o\'erall balance of competing uses of the shoreline. The Court today does precisely the opposite, o\'erruling an eminently reasonable exercise of an expert state agency's judgment, substituting its own narrow \-iew of how this balance should be struck. Its reasoning is hardly suited to the complex reality of natural resource protection in the twentieth centu- ry. I can only hope that today's decision is an aberration, and that a broader vision ultimately prevails.14 I dissent. conditions creat.E nary requiremen its police powe: rationally based Clover Leaf Cr. 466, 101 S.Ct. (1981). In m)' \ from appellants velopment crea to the governrr public access tc opment by its access to the : cult. Appellan general de\'elo: diminishes the ocean and decr it may have p' These losses ir. . . a"'t least m par lants' constru' sage that enS1 Traditional . conclusion th: The govern me of the police record reveal~ effect on the No investme: diminished. : lans had notic purchased tht of the beach ades. For these 1 Justice BLACKMD~, dissenting. I do not understand the Court's opinion in this case to implicate in any way the public-trust doctrine. The Court certainly had no reason to address the issue, for the Court of Appeal of California did not rest its decision on Art. X, ~ 4, of the California Constitution. ~or did the parties base their arguments before this Court on the doctrine. I disagree with the Court's rigid interpre- tation of the necessary correlation between a burden created by de\'elopment and a condition imposed pursuant to the State's police power to mitigate that burden. The land.use problems this country faces re- quire creath'e solutions. These are not ad- vanced by an "eye for an eye" mentality. The close nexus between benefits and bur- dens that the Court now imposes on permit 14. I belie\'e that States should be afforded con- siderable latitude in regulating private develop- ment, without fear that their regulatory efforts will often be found to constitute a taking. "If . .. regulation denies the propeny owner the use and enjoyment of his land and is found \0 effect a 'taking' ", however, 1 believe that com- pensation is the appropriate remedy for this constitutional \'iolation. San Diego Gas & Elec. tn'c Co. \'. San Diego, 450 U.S. 621, 656, 101 S.Ct. 1287, 1306, 67 L.Ed.2d 551 (1981) (BRENNAN, J., dissenting) (emphasis added). 1 therefore see my dissent here as completely consistent with my position in FirST English E\'angelical Church \'. Los AnEEles COUnTY, - U.S. _,107 S.Ct. 2378, 95 L.Ed.2d - (198i). Justice 51 BLACKMU} The debat tice BRE~~ important I regulation c real estate. lic officials about the \": * "The constit once a COll tion has eff ty must pa commencir ~OLLAN ", CALlFOR!'\IA COASTAL CO~I'~ Cite as 107 S.Ct. 3141 (1987) 3163 ('c,nditions creates an anomaly in the ordi- nary requirement that a State's exercise of its police power need be no more than rationally based. See, e.g., .Minnesota t'. ClOl'er Leaf Creamery Co., 449 U.S. 456, -i66. 101 S.Ct. ;15, i25, 66 L.Ed.2d 659 \1981). In my view, the easement exacted from appellants and the problems their de- \"eJopment created are adequately related to the governmental interest in providing public access to the beach. Coastal devel- opment by its very nature makes public access to the shore generally more diffi- cult. AppeJJants' structure is part of that r;eneral development and, in particular, it diminishes the public's visual access to the ocean and decreases the public's sense that it may have physical access to the beach. These losses in access can be counteracted, at least in part, by the condition on appel- lants' construction permitting public pas. sage that ensures access along the beach. Traditional takings analysis compels the conclusion that there is no taking here. The governmental action is a valid exercise of the police power, and, so far as the record reveals, has a nonexistent economic effect on the value of appeJJants' property. ~o investment-backed expectations were diminished. It is significant that the Nol- lans had notice of the easement before they purchased the property and that public use of the beach had been permitted for dec- ades. For these reasons, I respectfully dissent. Justice STE\'E~S, with whom Justice BLACKMD~ joins, dissenting. The debate between the Court and Jus- tice BRE~~A~ illustrates an extremely important point concerning government regulation of the use of pri\"ately owned real estate. Inte11igent, weJJ-informed pub- lic officials may in good faith disagree about the validity of specific types of land . '"The constitutional rule I propo~e requires that. once a court finds that a police power regula- tion has effected a 'taking: the go\'erQ,1l1ent enti- ty mu~t pay juH compensation fOJ'othe period commencing on the date the regulation first use regulation. Even the wisest lawyers would have to acknowledge great uncer. tainty about the scope of this Court's tak- ings jurisprudence. Yet, because of the Court's remarkable ruling in First English Evangelical Lutheran Church t'. Los An- geles County, 482 U.S. -, 107 S.Ct. 2378, 95 L.Ed.2d - (1987), local govern- ments and officials must pay the price for the necessarily vague standards in this area of the law. In his dissent in San Diego Gas & Elec. tric Co. 1'. San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981), Justice BRE~~ A~ proposed a brand new constitu- tional rule: He argued that a mistake such as the one that a majority of the Court believes that the California Coastal Commission made in this case should auto- maticaJJy give rise to pecuniary liability for a "temporary taking." Id., at 653-661, 101 S.Ct., at 1304-1309. ~otwithstanding the unprecedented chilling effect that such a rule will obviously have on public officials charged with the responsibility for drafting and implementing regulations designed to protect the em-ironment and the public wel- fare, six ~1embers of the Court recently endorsed Justice BRE~~A~'s novel pro- posal. See First English Erangelical Lu- theran Church, supra. I write today to identify the severe ten. sion between that dramatic development in the law and the ,-iew expressed by Justice BRE~~ A~'s dissent in this case that the public interest is served by encouraging state agencies to exercise considerable flex- ibility in responding to private desires for development in a way that threatens the preservation of public resources. See ante, at 3154-3155. I like the hat that Justice BRE~NAN has donned today bet- ter than the one he wore in San Diego, and I am persuaded that he has the better of the legal arguments here. Even if his posi. effected the 'taking: and ending on the date the go\'ernment entity chooses to rescind or other. wise amend the regulation." 450 V.S., at 658. 101 S.Ct.. at 1307. ............-:.11 .- . ~ . 3164 107 S1:PREME COl:RT REPORTER tion prevailed in this case, however, it would be of little solace to land-use plan- ners who would still be left guessing about how the Court will react to the next case, and the one after that. As this case dem- onstrates, the rule of liability created by the Court in First English is a short-sight. ed one. Like Justice BRENNAN, I hope "that a broader vision ultimately prevails." Ante, at 3161. I respectfully dissent. Joseph G. GRIFFIN, Petitioner ". WISCONSIN No. 86-5324. Argued April 21, 1987. Decided June 26, 1987. Probationer was convicted in the Cir- cuit Court, Rock County, J. Richard Long, J., of possession of firearm by a felon, and he appealed. The Court of Appeals, 126 Wis.2d 183, 3i6 N.W.2d 62, affirmed, and probationer appealed. The \Visconsin Su- preme Court, 131 Wis.2d 41, 388 N.W.2d 535, affirmed, and certiorari was granted. The Supreme Court, Justice Scalia, held that search of probationer's home, pursu- ant to Wisconsin regulation replacing stan- dard of probable cause by "reasonable grounds," satisfied Fourth Amendment. Affirmed. Justice Blackmun filed a dissenting opinion in which Justice Marshall joined and in parts of which Justices Brennan and Stevens joined. Justice Stevens filed a dissenting opin- ion in which Justice M~shall joined. 1. Criminal Law ~982.8 Warrantless search of probationer's home, pursuant to Wisconsin regulation which was valid because special needs of Wisconsin's probation system made war. rant requirement impracticable and justi- fied replacement of standard of probable cause by "reasonable grounds," satisfied demands of Fourth Amendment. V.S.C.A. Const.Amend. 4. Wisce the legal of Social ject to .. and regul ment." ( probation home wit supen'iso: are "reaE presence whether' ficer mUE including mant, the informati. officer's and the n , :- rules of ] other re~ possess a cer's ad,,: received : were or r tioner's searched gun. Pel the felon convicted denied hi seized dt that no \, search w; Appeals firmed. Held 1. 1 er's resie meaning cause it ' lation th~ the "spec Pp. 3167 (a) ~ "special: departur 2. Criminal Law 0='>982.8 Searches and Seizures 0='>25 Probationer's home, like anyone else's, is protected by Fourth Amendment's re- quirement that searches be reasonable. V.S.C.A. Const.Amend. 4. 3. Criminal Law 0='>982.8 Supen'ision of probationer is a special need of the state permitting degree of in- fringement upon privacy that would not be constitutional if applied to public at large. D.S.C.A. Const.Amend. 4. 4. Federal Courts 0='>381 Supreme Court is bound by state court's interpretation of federal regulation, which is relevant to court's constitutional analysis only insofar as it fixes meaning of the regulation. 5. Constitutional Law 0='>270(5) Criminal Law 0='>982.8 If regulation established standard of conduct to which probationer had to con- form on pain of penalty, state court could not constitutionally adopt so unnatural an interpretation of the language that regula- tion would fail to provide adequate notice. D.S.C.A. Const.Amend. 4. 6. Criminal Law 0='>982.8 It is reasonable to permit information pro\'ided by police officer, whether or not on the basis of firsthand knowledge, to support search of probationer, and it is enough if information provided indicates only likelihood of facts justifying the search. l.'.S.C.A. Const.Amend. 4. * The syJJ. of the ( porter ( 2378 107 SVPREME corRT REPORTER r' - .... t , petition for clarification, the Commission did not believe that the unions had ade. quately ~upported their contention that the RLA had anything to say about the track- age rights issue.16 Similarly, the Commis- sion declined to address the other issues that the unions raised, such as whether MKT's and DRGW's use of their own crews violated the terms of the labor pro- tecth-e conditions that the Commission had imposed in the approval order. See App. to Pet. for Cert. in !\o. 85-i93, pp. A-45-A50 (discu~sing the terms imposed pursuant to New York Dock Ry.-Co11trol-Brooklyn Eastern Dist., 360 I.C.C. 60 (1979), and Norfolk & Western R. Co.-Trackage Rights-B.\". 354 I.C.C. 605 (19i8), as mod. ified by .\fendocino Coa.st Ry., Inc.-Lease and Operate, 360 I.C.C. 653, 664 (1980)). Surveying the many opportunities that the unions had to raise objections to the track- age rights proposals during the proceed. ing~, the Commis~ion concluded: "BLE, l~TL, and various other railwav labor organizations participated in the~'e proceedings, and none made any argu- ment or presented any evidence that the responsive trackage rights proposals would violate any applicable labor agree- ment. Rather, the record supports the conclusion that the trackage rights oper- ations, using the tenants' crews, could be implemented as approved without raising any dispute oYer crew assignments be- tween the employees of different rail. roads." App. to Pet for Cert. in !\o. 85-i93. p. at A45. It is thus clear that the agency's refusal to take action based on the unions' new claim that the use of the tenants' crews conflict- ed with various laws was based on the premise that the unions had, so to ~peak. procedurally defaulted on those claims. that the railroads .....ished to be allowed to use their o.....n crews. See allIe, at 2363; see also Missouri, Pacific R. Co., supra, at 112; App. to Pet. for Cut. in So. 8~-793. pp. 45A-50A. The leC's conclusion th;,t the unions should have been aware of the terms of""lhe proposals is entitled to substantial defer.snce. resting as it does on the intricaci~s of practice before the Commission. . t 1 ~ 5 .' There is no basis for concluding that tho decision constituted an abuse of discretio:. I would therefore reverse the COUrt of Appeals on these grounds, not because it lacked jurisdiction. FIRST E!\GLlSH EV A~GELlCAL LUTHERAN CHURCH OF GLE!\DALE, Appellant, ". COUSTY OF LOS A!liGELES, CALIFORNIA. !lio. 85-1199. Argued Jan. 14, 1987. Decided June 9, 1987. Landowner filed complaint in Superi(.~ Court of California against county a:'.r. county: flood control district alleging ,r,;,: regulatory ordinance prohibiting conHr"c, tion on landowner's property denied lanc. owner all use of its property. Landow!:\ ~ sought to recover in inverse condemnati(I~. and in tort. Defendants moved to Hrik,' portions of complaint that alleged that orcii. nance denied all use of property. The E;;- perior C{)urt struck allegation, and lanc- owner appealed. Following affirmance j,y the California Court of Appeal and deni,,; of re,-iew by the California Supreme Court. appeal was taken. The Supreme Court. Chief Justice Rehnquist, held that: t: I claim that earlier California Supreme Court 16. The Commission prefaced its discussion ,,! the ~ 11341 issue by concluding that the unlN1' had not adequateh. demonstrated that "thc trackage rights agreements _" involve a chanfc in l'P-!\1P employees' working condition~ In a manner contrary -to RLA requirements." /d., a: A43. FIRST E!\C decision had improperly pensation clause did no tion as remedy for te: takings was properly under just compen~a' go,'ernment has taken 1 regulation, landowner ages for taking befoTE mined that regulation ( his property. Reversed and ren: Justice Stevens fi ion, in parts one and tices Blackmun and 0 1. Federal Courts <i:=> Claim that Califo case improperly held tion clause of Fifth } require compensation; rary regulatory takin tory takings which a dated by courts, wa! for review, where Ca peal assumed that co ages for uncompensa of landowner's propel had relied on Californ ci~ion for conclusion ing was limited to no! isolating remedial q C{)urt's consideratio Amend. 5. 2. Federal Courts ~ Where state cou decided federal con preme Court need when question was 3. Federal Courts € By holding that pensation was not ur nia courts upheld . ordinance against question of whethel ,'iolated just compel Amendment, and . within terms of stat to Supreme Court 0: FIRST E~GLISH EVAN. LUTH. CH. v. LOS A~GELESCTY. Cite.... 107 S.Ct. 1378 (1987) 2379 ',c1eCision had improperly held that just com- .. pensation clause did not require cOmpensa- .' don :;.s remedy for temporary regulatory : takings was properly presented, and (2) ,onder just compensation clause, where , go,'ernment has taken property by land use , ,eg"Jlation, landowner may recover dam- J. ages for taking before it is finally deter- ;. Illined that regulation constitutes taking of : his property. ~ Reyersed and remanded. Justice Stevens filed dissenting opin- . ion. ;n parts one and three of which Jus- ,; tices BJackmun and O'Connor joined. ': J. Federal Courts <!?504 Claim that California Supreme Court case improperly held that just compensa- tic.:! clause of Fifth Amendment does not req\:;re compensation as remedy for tempo- ~ry regulatory takings, or those regula- tory takings which are ulitimately invali- d<.:~d by courts, was properly presented !or rHiew, where California Court of Ap- pe,,] assumed that complaint sought dam- ii=es for uncompensated taking of all use of landowner's property by ordinance, and ~..d re]jed on California Supreme Court de- c:sic-:] fer conclusion that remedy for tak- L'1g was limited to nonmonetary relief, thus i!.c,]..ting remedial question for Supreme C<>l:rt's consideration. D.S.C.A. Const. .~.me;;d. 5. 2. Federal Courts <!?501 \\'here state court has considered and decided federal constitutional claim, Su- t're:r,e Court need not consider how or when question was raised. 3. Federal Courts <!?505 By holding that failure to provide com- yensation was not unconstitutional, Califor- nia" courts upheld validity of statute or ora:nance against federal constitutional q~estion of whether regulatory ordinance ~' \'101..ted just compensation clausa- of Fifth A~;endment, and therefore, case came w::hin tHms of statute authorizing appeal to Supreme Court of state decision uphold- .~ . \ ~.' " "i; ~" ing validity of statute allegedly repugnant to Federal Constitution. 28 U.S.C.A. ~ 1257(2); U.S.C.A. Const.Amends. 5, 14. 4. Eminent Domain e=1, 69 Just compensation clause is designed not to limit governmental interference of property rights per se, but rather, to se- cure compensation in event of otherwise proper interference amounting to taking. U.S.C.A. Const.Amends. 5, 14. 5. Eminent Domain <!?266 While typical taking occurs when government acts to condemn property in exercise of its power of eminent domain, entire doctrine of inverse condemnation is predicated on proposition that taking may occur without such formal proceedings. U.S.C.A. Const.Amend. 5. 6. Eminent Domain <!?11-l Temporary takings which deny land- owner all use of his property are not differ- ent in kind from permanent takings, for which Constitution clearly requires com- pensation. D.S.C.A. Const.Amend. 5. (" 7. Eminent Domain e=lH Invalidation of ordinance without pay- ment of fair value for use of property during period landowner is denied use of property under regulatory ordinance is con- stitutionally insufficient remedy for taking. U.S.C.A. Const.Amend. 5. 8. Eminent Domain <!?124 Valuation of property which has been taken must be calculated as of time of taking; depreciation in value of property by reason of preliminary activity is not chargeable to government. 9. Eminent Domain <!?124 Under just compensation clause, where government has taken property by land use regulation, landowner may recover dam- ages for time before it is finally determined that regulation constitutes taking of his property. D.S.C.A. Const.Amends. 5, 14. ----""""" 2380 107 SrPREME COURT REPORTER 10. Eminent Domain <1:=69 Once court determines that taking has occurred, government retains whole range of options already available: amendment of regulation, withdrawal of invalidated regu- lation, or exercise of eminent domain; how- ever, where government's activities have already worked taking of all use of proper- ty, no subsequent action by government can relieve it of duty to provide compensa- tion for period during which taking was effective. D.S.C.A. Const.Amend. 5. Syllabus . In 1957, appellant church purchased land on which it operated a campground, known as "Lutherglen," as a retreat center and a recreational area for handicapped children. The land is located in a cam'on along the banks of a creek that is "the natural drainage channel for a watershed area. In 1978, a flood destroyed Luther- glen's buildings. In response to the flood, appellee Los Angeles County, in 1979, adopted an interim ordinance prohibiting the construction or reconstruction of any building or structure in an interim flood protection area that included the land on which Lutherglen had stood. Shortl" after the ordinance was adopted, appella~t filed suit in a California trial court, alleging, inter alia, that the ordinance denied appel- lant all use of Lutherglen, and seeking to recover damages in inverse condemnation for such loss of use. The trial court grant- ed a motion to strike the allegation, basing its ruling on Agins 1'. Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979) (aff'd on other grounds, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980)), in which the California Supreme Court held that a landowner may not maintain an inverse condemnation suit based upon a "regula- tory" taking, and that compensation is not required until the challenged regulation or ordinance has been held excessive in an action for declaratory relief or a writ of * The syllabus constitutes no pan of the opinion of the Coun but has been prepared- b\' the Re, poner of Decisions for the con\'enien'ce of the mandamus and the government has neYer- theless decided to continue the regulation in effect. Because appellant alleged a reg. ulatory taking and sought only damages, the trial court deemed the allegation that the ordinance denied all use of Lutherglen to be irrelevant. The California Court of Appeal affirmed. Held: 1. The claim that the Agins case im. properly held that the Just Compensation Clause of the Fifth Amendment does nt't require compensation as a remedy for "temporary" regulatory takings-='those regulatory takings which are ultimately in- validated by the courts-is properly presented in this case. In earlier cases. this Court was unable to reach the question because either the regulations considered to be in issue by the state courts did not effect a taking, or the factual disputes yet to be resolved by state authorities might still lead to the conclusion that no taking had occurred. Here, the California Court of Appeal assumed that the complaint sought damages for the uncompensated "taking" of all use of Lutherglen by the ordinance, and relied on the California Suo preme Court's Agins decision for the con- clusion that the remedy for the taking was limited to nonmonetary relief, thus isolat- ing the remedial question for this Court's consideration. Ma,eDonald, Sommer & Frates v. Yolo County, 4i7 U.S. -, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); William- son County Regional Planning Comm'l1 i'. Hamilton Bank, 473 U.S. li2, 105 S.Ct. 3108, 87 L.Ed,2d 126 (1985); San Diego Gas & Electric Co. v. San Diego, 450 V-S, 621, 101 S.Ct. 1287, 67 L,Ed.2d 551 (1981): and Agins, all distinguished. Pp. 2383- 2385. 2. Under the Just Compensation Clause, where the government has "taken" property by a land-use regulation. the land- owner may recover damages for the time before it is finally determined that the reg- reader. See Ullited States \', Detroit Lumber Co" 200 l',S. 321. 33i, 26 S,Ct, 21'2. 2~i, 50 L,Ed, 499 (1906), FIRST E~( ulation constitutes a "u, t\"o The Clause is desif go\"ernmental interfert rights per se, but rathe sation in the e\"ent 0 interference amountinj landowner is entitled t. in\'erse condemnation self-executing characte: al pro\"ision with respe ,"hile the typical takiJ go\"ernment acts to c< the exercise of its po main, the doctrine of ir is predicated on the pr ing may occur withol: reedings. > "Temporary which, a~ here, deny a his property, are not di permanent takings for tion clearly requires co court determines thai curred, the go\"ernmel range of options alrea( ment of the regulatiol in\'alidated regulation. nent domain. But whe acti\"ities ha\"e already all use of property, r. by the go\"ernment c duty to provide compel during which the takin validation of the ord ment of fair \"alue for erty during such perit tutionally insufficient 2389. Re\"ersed and ren REH~QlJIST, C.J ion of the Court, in WHITE, MARSHAL SCALIA, JJ., joined. dissenting opinion, in which BLACK~n.::~ ~ join. ;..jichael ~L Berger 1'(Jr petitioner, FIRST E:\GLISH EVAN. LUTH. CH. Y. LOSA:\GELES CTY. Cite as 107 S.Ct. 2378 (1987) I I I I ulation constitutes a "taking" of his proper- ty. The Clause is designed not to limit the go\'ernmental interference with property rights per se, but rather to secure compen- sation in the eyent of otherwise proper interference amounting to a taking. A landowner is entitled to bring an action in inyer~e condemnation as a result of the ~elf-executing character of the constitution- al pro\'i~ion with respect to compensation. While the typical taking occurs when the go\'ernment acts to condemn property in the exercise of its power of eminent do- main, the doctrine of im'erse condemnation i~ predicated on the proposition that a tak- ing may occur without such formal pro- ceedings. "Temporary" regulatory takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings for which the Constitu- tion clearly requires compensation. Once a court determines that a taking has oc- curred, the go\'ernment retains the whole range of options already ayailable-amend- ment of the regulation, withdrawal of the inyalidated regulation, or exercise of emi- nent domain. But where the government's actiyities have already worked a taking of a1l u~e of property, no subsequent action by the government can relieve it of the riuty to pro\'ide compensation for the period during which the taking was effective. In- yalidation of the ordinance without pay- ment of fair yalue for the use of the prop- erty during such period would be a consti- tutioTJa1ly insufficient remedy. Pp. 2385- 2389. Re\'er~ed and remanded. REHNQrIST, C.J., deliyered the opin- ion of the Court, in which BRENNAN, WHITE, MARSHALL, POWELL, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in Parts I and III of which BLACKMDN and O'CONNOR, JJ., join. ~Iichael ~L Berger, Los Angeles, Cal., for pHitioner. 2381 Jack R. White, Los Angeles, Cal., for respondent. Chief Justice REHNQ"CIST deliyered the opinion of the Court. In this case the California Court of Ap- peal held that a landowner who claims that his property has been "taken" by a land- use regulation may not recoyer damages for the time before it is fina1ly 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 Con~titution would require compen- sation for that period. In 1957, appe1lant Fir~t English Evan- gelical Lutheran Church purchased a 21- acre parcel of land in a canyon along the banks of the !l1iddle Fork of Mill Creek in the Angeles National Fore~t. The ~1iddle Fork is the natural drainage channel for a water~hed area owned by the National For- est Service. Twelve of the acres owned by the church are flat land. and contained a dining ha1l, two bunkhou~es, a caretaker's lodge, an outdoor chapel. and a footbridge across the creek. The church operated on the site a campground, known as "Luther- glen," as a retreat center and a recreation- al area for handicapped children. In July 1977, a fore~t fire denuded the hills upstream from LuthergJen, de~troying 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 ~torm dropped 11 inches of rain in the water~hed. The runoff from the storm overflowed the banks of the Mill Creek, flooding Lutherglen and de~troying its buildings. In re~ponse to the flooding of the can- yon, appellee County of Los Angeles adopted Interim Ordinance No. 11,855 in January 1979. The ordinance provided that "[a] per~on ~hall not con~truct, reconstruct. place or enlarge any building or structure, any portion of which i~. or will be, located within the outer boundary lines of the in- t.erim flood protection area located in ~1ill .~ ~: .~: r;;~ -, )';f,' ~..:\; ~;.. H :y:~~. t}'R.:.;. : }.. .r;'f? 2382 lOi SljPREME COVRT REPORTER Creek Canyon...." App. to Juris. State- ment A31. The ordinance was effective immediately because the county determined that it was "required for the immediate preservation of the public health and safe- ty. .. ." ld., 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. The church filed a complaint in the Supe- rior 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 Ange]es County Flood Control Dis- trict. The first alleged that the defendants were liable under Cal.Gov't Code Ann. ~ 835 (West 1980) 1 for dangerous condi- tions on their upstream properties that con- tributed to the flooding of Lutherg]en. As a part of this claim, appellant also alleged that "Ordinance ~o. 11,855 denies [appel- lant) all use of Lutherg]en." App. 12, 49. The second claim sought to recover from the Flood 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 Joss of use of Lutherglen. The defendants moved to strike the portions of the complaint alleging that the county's ordinance denied all use of Lutherg]en, on the view that the California Supreme Court's decision in' Agins 1'. Tiburon, 24 Cal.3d 266, 15i Cal.Rptr. 372, 598 P.2d 25 (1979), afi'd on other grounds, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), rendered the allegation "entirely immateri. al and irrelevantt, with) no bearing upon any conceivable cause of action herein." App.22. See Cal.Civ.Proc.Code Ann. ~ 436 (West Supp.1987) ("The court mav ... strike out any irrelevant, false, or improper matter inserted in any p]eading"). 1. Section 835 of the California Government Code establishes conditions under which a pub- lic entity may be liable "for injury caused by a danj;erous cO:Jdition of its property.. .~' 2. The trial court also J;Tanted defend:lnts' mo- tion for judgment on the pleadings on the sec. ond cause of action. based on cloud seeding. It In Agins 1'. Tiburon, Supra 'h .. . , e.'" preme Court of California decidea"h'~" . " .., landowner may not maintain an inv . condemnation suit in the COurts of ~~ State based upon a "regu]atory" ~b~' 24 Cal.3d, at 275-277, 157 Cal.Rptt.. :. 37G-78, 598 P.2d, at 29-31. In the cou~ ~ view, maintenance of such a suit \\"(1'._ allow a landowner to force the ]e~i!'l;,:~~: to exercise its power of eminent dl,- '.' Under this decision, then, compE:-m;,:;;":~'~', not required until the challenged rt'!;ul;,:;..: or ordinance has been held excess!Ye i:. :.' action for declaratory relief or a w~i, . : mandamus and the government has r,l",,: theless decided to continue the regui:.::,',: in effect. Based on this decision, the t:o-.:. court in the present case granted tLl' ::. . tion to strike the allegation that tht' C~,l;;.: had been denied all use of Luther;:k:: explained that "a careful re-readin,f! ,..: ::.' Agins case persuades the Court tn:" ','.:> . an ordinance, even a non.zoning ordin:,:.'" deprives a person of the total m.e d :..' lands, his challenge to the ordinance :;. ::. way of declaratory relief or possibly :~,:,: damus." App. 26. Because the apill'i.:,:.: alleged a regulatory taking and Hq~;.: only damages, the allegation that the t';.; nance denied all use of LuthergJE:-:1 '0\:.' deemed irrelevant.2 On appeal, the California Court (If .\; peal read the complaint as one >fl'f:::.; "damages for the uncompensated takiq: ' : all use of LuthergJen by County Ordi:;:,:',':' }:o. 11,855...." App. to Juris. State:~',',:: A13-A14. It too relied on the Ca]jf(,~:::, Supreme Court's decision in Aginsin ~,.. jecting the cause of action, declining :;Jj":' lant's im'itation to reeya]uate Agili., i:. light of this Court's opinions in Sa 11 D;'(c., Gas & Electric Co. 1'. Sa n DicQo. 45(1 r.:-: 621, 101 S.Ct. 1?87, 6i L.Ed.:2d 551 (l!l~;; limited trial on the first cause of aclic.;1 :..' damages under CaLGoy't Code Ann. ~ F?o5 \W..,: 1980), rejecting the in\'erse COr.dfJ11I;:':;~~' claim. At the close of plaintiffs c\'idcn(~. ::'. trial court J;Tanted a nonsuit on l:>~h:,lf ,of ct'. fendants, dismhsing the entire comp];lil;!. FIRST ENGLISH E' ;, foe court found itself obligated 40ins "because the United StaW (;6urt has not yet ruled on ~e. q whether a state may constitutlO the remedy for a taking to nOl relief. . . ." App. to Juris. State It accordingly affirmed the tr: decision to strike the allegation ing appellee's or?inanc~.3 T~E c.ourt of Califorma demed rey){ This appeal followed, and we 1 able jurisdiction. 478 U.S. - 3292, 92 L.Ed.2d 708. Appellant hold that the Supreme Court of med in Agins v. Tiburon in c ,h~t the Fifth Amendment, as : c:;b]e to the States'through the Amendment, does not require tion as a remedy for "tempora lory takings-those regulato which are ultimately invalida' c(lur..s.4 Four times this decac considered similar claims and (Iurseh'es for one reason or anc to comider the merits of the See MacDonald, Sommer & Fr County, -i77 U.S. -, 106 S. L.Ed.2d 285 (1986); William~ Regional Planning Comm'n Balik. 473 U.S. 172, 105 S.< L.Ed.2d 126 (1985); San Diego tric Co., supra; Agins v. Tibl 3. The California Court of Appeal the lower court's orders limiting trial on the first cause of actj, nonsuit on the issues that proc and dismissing the second cau based on cloud seeding-to the founded on a theon' of strict I The court reversed ihe trial CO\: the second cause of action coul tained against the Flood Contro: the theon' of inverse condemna was rem~nded for further proc cl"im. These circumstances alone, ; more particular issues preser. cases and discussed in the tex' consider whether the pending r, ther liability questions deprive: tion because we are not present jucgmen{tJ or decre{e)" within 28 l'.S.C. fl 1257. We think t f"irly char;cterized as one "in \. issu~, finally decided by the hi~ FIRST E:\GLISH EVA~. LUTH. CH. ". LOS A:\GELES CTY. Cite as 107 S.Ct. 2378 (1987) 2383 court found itself obligated to follow '"s "becam.e the United States Supreme rt has not yet ruled on the question of ther a state may constitutionally limit i).e reme~.y for a takin~ to nonmonetary Jdief.... App. to Jurls. Statement A16. .it accordingly affirmed the trial court's iccision to strike the allegations concern- '. :ippellee'~ or~inanc~.3 T~e Supreme 'Court of Cahforma demed reVlew. ,,': This :;ppeal followed, and we noted prob- ':able jurisdiction. 478 U.S. -, 106 S.Ct. .~2.!l2 L.Ed.2d 708. Appellant asks us to ,: IloId that the Supreme Court of California it.m>d in Agins v. Tiburon in determining It-~t the Fifth Amendment, as made appli- l Q1>Je to the States through the Fourteenth ': .lJr.cndment, does not require compensa- 'r bon :,s a remedy for "temporary" regula- ~. tory takings-those regulatory takings :: which ;,re ultimately invalidated by the 1: CO:lrtS.l Four times this decade, we have -:. cor.;;idered similar claims and hase found j OUN.JwS for one reason or another unable .~. to ceor-sider the merits of the Agins rule. ~. S<-c .\!acDonald, Sommer & Frates v. Yolo " COllli/Y. .fii U.S. -, 106 S.Ct. 2561, 91 LEd.:?d 285 (1986); Williamson County ~ P.rpiolial Planning Comm'n 1'. Hamilton Bad:. 4i3 U.S. 1i2, 105 S.Ct. 3108, 8i , LEd.2d 126 (1985); San Diego Gas & Elec- tric (0.. supra; Agins 1'. Tiburol1, supra. .-~ 3. T!1c California Court of Appeal also affirmed . t!lc Jower court's orders limiting the issues for ... \riaJ on the first cause of action, granting a oc,muit on the issues that proceeded to trial. ar,o dismissing the second cause of action- ~;;,sed on cloud seeding-to the extent it was .oundcd on a theory of strict Iiabilitv in ton. T!le coun re\'ersed the trial coun's ruling that thc second cause of action could not be main. tained against the Flood Control District under thc theory of in\'erse condemnation. The case ....;a: remanded for funher proceedings on this (,Glm. Thc'se circumstances alone. apart from the rr,ore particular issues presented in takin/;s Ci:!o<:s and discussed in the text, require us to ~~~!id?r .\~'hether the pcndin~ resolutio~ o~ ~r. : tr habllny questJons depn\'es u~ of Junsdlc. t,l'~ b(''',u~e we are not presented with a "final !UCfrntn[t) or decre(e]" within the mean in/; ~ ;.8. 1:.S.c. ~ 1257. We think that this case_is "Irly characterized as one "in which the federal l!!ue. finally decided by the highest court in the For the reasons explained below, however, we find the constitutional claim properly presented in this case, and hold that on these facts the California courts ha\'e de. cided the compensation question inconsist- ently with the requirements of the Fifth Amendment. I [1] Concerns with finality left us unable to reach the remedial question in the earli. er cases where we ha\'e been asked to consider the rule of Agins. See Mac- Donald, Sommer & Frates, supra, 47i U.S., at -, 106 S.Ct. at - (summariz. ing cases). In each of these cases, we concluded either that regulations con- sidered to be in issue by the state court did not effect a taking, Agins V. Tiburon, su- pra, 24 CaL3d, at 263, 157 CaLRptr. 372, 598 P.2d 25, or that the factual disputes yet to be resolved by state authorities might still lead to the conclusion that no taking had occurred. MacDonald, Sommer & Frates, supra, 477 U.S., at -, 106 S.Ct. at -; Williamson County, supra. 473 U.S., at -,105 S.Ct., at -; San Diego Ga.s & Electric Co., supra, 450 U.S., at 631-632, 101 S.Ct., at 1293-1294. Consid- eration of the remedial question in those circumstances, we concluded, would be pre- mature. State [in which a decision could be had), will survive regardless of the outcome of future state.coun proceedings." Cox Broadcasling Corp. ,.. Cohll, 420 u.S. 469, 480, 95 5.Ct. 1029, 1038, 43 L.Ed.2d 328 (1975). As we explain infra, at - - -, the California Coun of Ap. peal rejected appellant's federal claim that it was entitled to just compensation from the county for the taking of its propeny; this dis. tinct issue of federal law will sur\'ive and reo quire decision no matter how further proceed. ings resolve the issues concerning the liability of the flood control district for its cloud seeding operation. 4. The Fifth Amendment pro\'ides "nor shall pri. vate property be taken for public use, without ju~t compensation," and applies to the States through the Fourteenth Amendment. See Chi. cago, B. & Q.R. Co. v. Chicago, 166 C.S. 226, 17 S.Ct. 58 I. 4 I L.Ed. 979 (1897). 2384 10i SUPREME COURT REPORTER FIRST ENGL The posture of the present case is quite different. Appellant's complaint alleged that "Ordinance ~o. 11,855 denies [it] all use of Lutherglen," and sought damages for this deprh'ation. App. 12, 49. In af. firming the decision to strike this allega- tion, the Court of Appeal assumed that the complaint sought "damages for the uncom. pensated taking of all use of Lutherglen by County Ordinance No. 11,855." App. to Juris. Statement A13-A14 (emphasis add- ed). It relied on the California Supreme Court's Agins decision for the conclusion that "the remedy for a taking [is limited] to nonmonetary relief.. .,." Id., at A16 (emphasis added). The disposition of the case on these grounds isolates the remedial question for our consideration. The rejec- tion of appellant's allegations did not rest on the view that they were false. Cf. MacDonald, Sommer & Fmtes, supra, at -, n. 8, 106 S.Ct., at 2568, n. 8 (Califor- nia court reject.ed allegation in the com- plaint that appellant was deprived of all. beneficial use of its property); Agins 1'. Tiburon, 44i U,S., at 259, n. 6, 100 S.Ct., at 2141, n. 6 (same). ~or did the court rely on the theory that regulatory measures such as Ordinance No. 11,855 may never constitute a taking in the constitutional S. It has been urged that the California Supreme Court's discussion of the compensation question in Agills ". Tiburon, 24 CaJ.3d 266, 157 CaJ.Rptr. 372,598 P.2d 25 (1979), affd on other grounds, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), was dictum, because the court had al. ready decided that the regulations could not work a taking, See Martino ,'. Santa Clal.a Falley Warer District, 703 F.2d 1141, 1147 (CA9 1983) ("extended dictum"). The Court of Ap' peal in this case considered and rejected the possibility that the compensation discussion in AgillS was dictum. See App. to Juris. Statement Al4-A15, quoting Aptos Seascape Corp, ". COWl' ty of Sallta Cru.. 138 CaJ.App.3d 484, 493, 188 CaJ.Rptr. 191, 195 (1982) ("[J]t is apparent that the Supreme Court itself did not intcnd its dis. cussion [of inverse condemnation as a remedy for a taking) to be considered dictum. . . . and it has not been treated as such in subsequent Court of Appeal cases"). Whether treating the claim as a takings claim is inconsif'tent with the first holding of AgillS is not a .maller for our concern. It is enough that the court did so for us to reach the remedial question, sense. Instead. the claims were deerr.{-Q irrelevant solely because of the Californi.. Supreme Court's decision in Agins th..l damages are unavailable to redress a "terr.. porary" regulatory taking.s The Caljforni<. Court of Appeal has thus held that regard. less of the correctness of appellants' clairr. that the challenged ordinance denies it ":.l: use of Lutherglen" appellant may not r.... cover damages until the ordinance is fin..:h declared unconstitutional, and then only :(~r any period after that declaration for whit!. the county seeks to enforce it. The con~l:' tutional question pretermitted in our earjjt"r cases is therefore squarely presented hHt"' [2,3] We reject appellee's SUgg€'Slj(,:. that, regardless of the state court's t!'t":::- ment of the question, we must indepenct-:.: ly evaluate the adequacy of the compb::,: and resolve the takings claim on the mt-!'::.. before we can reach the remedial qtit-~t;(,:. However "cryptic"-to use appellee's ,~,.. scription-the allegations with respect :' the taking were, the Caljfornia co<:r:.. deemed them sufficient to present the ;;. sue. We accordingly have 110 occasic,n " decide whether the ordinance at issue ~c;;; ally denied appellant all use of its pre'I't'r. . ty' or whether the county might :!w,id ,".. 6. Our cases have also required th"t or.e S('~;"; compensation must "seek compe:1s~.:;.'" through the procedures the SUile has pr("'\!c:.,: for doing so" before the claim is ripe for revi,.\. Willian-",'oll Coullty Regional Plamlil:g ("PI;": ,; 1'. Hamilton Bank, 473 V.S, 172, 19-1, 105 5.(: 310S, 3121, 87 L.Ed.2d 126 (19&5). It is cie;,; that appellant met this requirement. Hav;:.... assumed that a taking occurred, lhe CaJif(\~:,:; court'S dismissal of the action establishes ::1;, "the inverse condemnation procedure is un~\;'.. able...." Id., at 197, 105 S.C1., at 3122. T:." compensation claim is accordingly ripe fo: :.:;; consideration. conclusion that a com pen occurred by establishing ~ all use was insulated a State's authority to ena< tions. See e.g., Goldblar 369 U.S. 590, 82 S.Ct. 9E (1962); Hadacheck v. ScI 394, 36 S.Ct. 143, 60 L.Ed gieT t'. Kansas, 123 U.S. 6: L.Ed. 205 (1887). The! course, remain open for remand we direct today, the question of whether t sation Clause requires th pay for "temporary" reg II [4] Consideration of t question must begin with ing or structure within th flood protection district ex( buildings and structures tho tially impede the flow of wat gas, electrical, and water sy the county engineer ... [a facilities incidental to a lawi . .. [and) [fJlood-control stn the chief engineer of the 1 Flood Control District." Co 220. 8. In addition to challengine takings decision below, appl er challenges to our jurisdict both the appellate and certi, this Court under 28 U.S.C. . leges that appellant has fai review an\" claim under fe, the compiaint in this case California Constitution, app. Court of Appeal that "recen . " show the Federal Constit AgillS{ \'. Tiburon, 24 Cal.3d 3i2, 595 P.2d 25 (1979) ):' Opposition to Appellee's See miss A13. The Court of App state rule of AgillS to dismis: rejected on the merits the ' violated the Vnited States disposition makes irrele\'an any deficiencies in the com issues. Where the state co and decided the constitutioJ not consider how or when raised. Mallhallall Life IllS. U,S. 123, 134, 34 S.C!. 8i4, (1914). Having succeeded in 7. Because the issue was not raised in the (t;:'. plaint or considered relevant by the C~:iifo::~:; courts in their assumption that a lakmg ....~ occurred, we also do not comider the effecl \. the county's permanent ordinance on t~e C(:~ clusions of the courlS below. That ordll',;,r,,' adopted in 1981 and reproduced at AFP' to .1"', is, Statement :\32-:\33, provides thaI "[Oll pc>' . shall not use, erect, construct. move ontO, N " alter, modjfy, enlarge or reconstruct any h;;.. FIRST ESGLISH EV AS. LVTH. CH. '-. LOS A..'lGELES CTY. Cite as 107 S.CL 2378 (J9fl7) u~ion that a compensable taking had d by establishing that the denial of . c:e was insulated as a part of the U! . . 's authority to enact safety regula- . See e.g., Goldblatt v. Hempstead, V.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 " ); Hadacheck v. Sebastian, 2~9 U.S. S6 S.Ct. 143, 60 L.Ed. 348 (1910); Mu. r. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 Z05 (1887). These questions, of . e. remain open for decision on the d we direct today. We now turn to question of whether the Just Compen- . n Clause requires the government to r for "temporary" regulatory takings.s II . UJ Consideration of the compensation tion must begin with direct reference -: ir4 or structure within the boundaries of a : f\oc>d protection district except '.. [a]ccessor:y . :."'"ldings and structures that will not substan- ~: ti.all,' impede the flow of water, including sewer, .ps.: electrical, and water systems, approved by Ibt county engineer ,'. [a]utomobile parking '~'b..-:lilies incidental to a lav.fully established use .:-. . land) [f]lood-control structures approved by .,:&bc chief engineer of the Los Angeles County ~. Flood Control District." County Code ~ 22.44.- : 220. ."';.~' ~ In addition to challenging the finality of the ',..tUings decision below, appellee raises two oth. (U challenges to our jurisdiction. First, going to ~ both the appellate and certiorari jurisdiction of j this Coun under 28 U.s.c. ~ 1257, appellee al. : Jqes that appellant has failed to preserve for :.. In'jew any claim under federal law. Though ,1be complaint in this case invoked onl\' the .~ California Constitution, appellant argued in the ~ Cow, of Appeal that "recent Federal decisions j.... show the Federal Constitutional error in ,., >4ci".J! t.. Tiburon, 24 CaJ.3d 266, 157 CaJ.Rptr. ~: In. 59S P.2d 25 (1979) ]." App. to Appellant's . ~ ~position to Appellee's Second Motion to Dis. ,.: Dllss ..\13. The Court of Appeal, by applying the . ~te rule of Agins to dismiss appellant's action, .~. ~cted on the merits the claim that the rule ;~~~ate.d. the l'nited States Constitution. This ,~....POSIIJOn makes irrelevant for our purposes ': ~y deficiencies in the complaint as to federal ::.'lSSues. Where the state coun has considered ,~and decided the constitutional claim, we need ..,lIOt Consider how or when Ihequestion was 'fai d ,; C Se. .\1anhaltan Life Ins. Co. ... Cohen, 234 ~ (;~. ,123, ]34, 34 S.Ct. 874, 877, 58 L.Ed. ]24; ~.: ]~). Having succeeded in bringing the feckr. 2385 to the language of the Fifth Amendment, which pro\'ides in relevant part that "pri- vate 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 -, 105 S.Ct., at -; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 297, n. 40, 101 S.Ct. 2352, 2371, n. 40, 69 L.Ed.2d 1 (1981); Hurley t'. Kincaid, 285 U.S. 95, 104, 52 S.Ct. 267, 269, 76 L.Ed. 637 (1932); Monon- gahela Narigation Co. t'. United States, 148 U.S. 312, 336, 13 S.Ct. 622, 630, 37 L.Ed. 463 (1893); United States 1'. Jones, 109 U.S. 513, 518, 3 S.Ct. 346, 349, 27 L.Ed. 1015 (1883). This basic understanding of ~ ~ al issue into the case, appellant preserved this questien on appeal to the Supreme Court of California, see App. to Appellant's Opposition to Appellee's Second Motion to Dismiss AI4-A22, which declined to review its Agins decision. Accordingly, we find that the issue urged here was both raised and passed upon below. Second, appellant challenges our appellate jurisdiction on the grounds that the case below did not draw "in question the validity of a statute of anv state...." 28 U.S.C. ~ 1257(2). There is, of c~urse, no doubt that the ordinance at issue in this case is "a statute of la] state" for purposes of ~ 1257. See Erznoznik v. City of Jackson~'ille, 422 U.S. 205, 207, n. 3, 95 S.C!. 2268, 2272, n. 3, 45 L.Ed.2d 125 (1975). As construed by the state courts, the complaint in this case alleged that the ordinance, by denying all use of the property, worked a taking without providing for just compensation. We have fre. quently treated such challenges to zoning ordi. nances as challenges to their validity under the federal constitution, and see no reason to revise that approach here. See, e.g., MacDonald, Som. mer c!- Frates v. Yolo Count)" 477 V.S. -, J06 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Loretto ... Teleprompter Manhattan CATV Corp., 458 l'.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (19S2); Agins v. Tiburon, 447 U.S. 255,100 S.C!. 2]38. to5 L.Ed.2d 106 (1980); Penn Celltral Transporta. tion Co. v. New York Citv, 438 U.S. ]04, 98 S.C!. 2646, 57 L.Ed.2d 631 (978). By holding that the failure 10 provide compensation was nN unconstitutional, moreover, the California courts upheld the validity of the statute agaimt the particular federal constitutional question at issue here-just compensation-and the case is therefore within the terms of ~ ]257(2). ;';-, _.! " f... , '" 2386 107 SUPREl\IE COURT REPORTER FIRST E:Sc 10:-' .... t. . to: 0" .... the Amendment makes clear that it is de- signed not to limit the governmental inter- ference with property rights per se, but rather to secure compensat1'on in the e\'ent of otherwise proper interference amount- ing to a taking. Thus, government action that works a taking of property rights nec- essarily implicates the "constitutional obli- gation to pay just compensation." Arm- strong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). We ha\'e recognized that a landowner is entitled to bring an action in inverse con- demnation as a result of " 'the self-execu- ting character of the constitutional pro\'i- sion with respect to compensation....''' Um'ted States t'. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980), quoting 6P. Nichols, Eminent Domain ~ 25.41 (3d re\'. ed. 1972). As noted in Justice BRENNAN's dissent in San Diego Gas & Electn'c Co., 450 U.S., at 654- 655, 101 S.Ct., at 1305, it has been established at least since Jacobs t'. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (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 n'ght was guaranteed by the Constitution. The fact that condem- nation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essen- tial nature of the claim. The form of the remedy did not qualify the right. It rest- ed upon the Fifth Amendment. Statu- tory recognition was not necessary. A promise to pay was not necessary. Such 9. The Solicitor General urges that the prohib, itory nature of the Fifth Amendment, see supra, at -, combined with principles of sovereign immunitv, establishes that the Amendment itself is only a'limitation on the power of the Govern. ment to act, not a remedial pro\'ision. The cases cited in the text, we think, refute the argument of the l"nited Stales that "the Consti, tution does not, of its own force, furnish a basis for a court to award money damages against the government," Brief for l'nited Slates as Amicus r- ... t c a promise was implied because of thE.- duty imposed by the Amendment. Tht sw'ts were thus founded upon the COti. sWution of the l}nited States." Jd.. c.t 16, 54 S.Ct., at 27. (Emphasis addE:>o.I Jacobs, moreover, does not stand alonE:>, fCJ~ the Court has frequently repeated the \.iE.-..... that, in the event of a taking, the comper:. sation remedy is required by the Conni:-.;. tion. See e.g., Kirby Forest Industric.<. Inc. v. United States, 467 U.S. 1, 5. HI~ S.Ct. 2187, 2191, 81 L.Ed.2d 1 (1984); ["ii~' ed States t.. Causby, 328 U.S. 256, 26';', f,; S.Ct. 1062, 1068, 90 L.Ed. 1206 (1946); Su; board Air Line R. Co. v. United Statc.<. 261 U.S. 299,304-306, 43 S.Ct. 354, 35."- 356, 67 L.Ed. 664 (1923); .\1071 011g0 I; ( i!; Navigation, supra, 148 U.S., at 32';', ::, S.Ct., at 626.9 [5) It has also been established dom:r.,' at least since Justice Holmes' opinion f(,~ the Court in Pennsyhania Coal Co. i Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ee 322 (1922) that "[t]he general rule at It-c.,,, is, that while property may be reguJat(:-d :(, a certain extent, if regulation goes too f,,~ it will be recognized as a taking." Jd.. :,: 415, 43 S.Ct., at 160. While the typic;:: taking occurs when the go\'ernment acts :(. condemn property in the exercise of i'..- power of eminent domain, the entire OOC. trine of inverse condemnation is preoicat..,-: on the proposition that a taking may ow;r without such formal proceedings. In Pum. pelly t'. Green Bay Co., 13 Wall. 166, 1';'~- 178, 20 L.Ed. 557 (1872), construing a pro\.j. sion in the Wisconsin C<>nstitution identic;;i to the Just Compensation Clause, thi;; Court said: "It would bea very factory result if ... if the government rE solute conversion of uses of the public it ( entire Iy, can inflict i manent injury to an: fect; subject it to tot out making any corr in 1he narrowest sem not taken for the pI Later cases ha\'e un) this principle. See, e.! United States, 444 U.S 62 L.Ed.2d 332 (1979): Dickinson, 331 U.S. 74~ 1385, 91 l..Ed. 1789 (H 1'. Causby, 328 U.S. 25 L.Ed. 1206 (1946). '\,o'hile the Supreme may not have actually . eral rule in Agins, we truncated the rule by d that occurred prior to tl tion of the challenged r preme Court of CaliforJ elusion at length in the eluding that: "In combination, the a degree of freedom i ning function, and thE force which inheres demnation remedy, p balance mandamus 0 rather than inverse c appropriate relief unc es." Agins t'. Tibu 276-277, 157 Cal.Rptl at 31. 'Ve, of course, are these considerations, 1 E:>\'aluated in the light ( the Just Compensation Amendment. The Cour more than one case th may elE:>ct to abandon i continue regulations. ~ est Industries, Inc. I'. U.S. 1, 104 S.Ct. 2187, E United States Z'. Dou'. 107A S Ct..-..;~~ Cun'ae 14. Though arising in \'arious fac:ua! and jurisdictional senings, these cases make clear that it is the Constitution that dictates the remedy for interference with property rifh:~ amou;ting to a taking. See San Diego GDJ I.- Eleclric Co. 1'. Salt Diego, 450 U.S. 62], 655, nd 21,101 S.Ct. ]287, 1305-1306, n. 21. 67 L.Ed:: 551 (1981) (BRENNAN, J., dissenting), quotlr.~ L'niled Slales 1'. Dickinso", 331 U.S. 745. 7~S. h S.Ct. J 382, 1384, 91 L.Ed. 1789 (1947). i FIRST E~GLISH EV A~. LUTH. CH. Y. LOS A~GELES CTY. Cite as 107 S.CL 1378 (1987) "It would be a very curious and unsatis- factory result if .., it shall be held that if the government refrains from the ab- solute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and per- manent injury to any extent, can, in ef- fect; subject it to total destruction with- out 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 Aeina v. l"llited States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); United States f'. Dickinson, 331 U.S. 745, 750, 67 S.Ct. 1382, 13S5, 91 L.Ed. 1789 (1947); United States r. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). \nile the Supreme Court of California may not have actuaIJy disavowed this gen- eral rule in Agins, we belie\'e that it has truncated the rule by disaIJowing damages that occurred prior to the ultimate invalida- tion of the chaIJenged regulation. The Su- preme Court of California justified its con- c];;sion at length in the Agins opinion, con- cluding that: "In combination, the need for preserving a degree of freedom in the land-use plan- ;jing function, and the inhibiting financial force which inheres in the inverse con- demnation remedy. persuade us that on balance mandamus or declaratory relief rather than inverse condemnation is the appropriate relief under the circumstanc- es." Agins I'. Tiburon, 24 Cal.3d, at 276-277, 157 Cal.Rptr., at 378, 598 P.2d, at 31. .. We, of course, are not unmindful of , these considerations. but they must be t:\'aluated in the light of the ~ommand 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 dis- continue regulations. See e.g., Kirby For- c~'t hdustrics. Inc. 1'. United State~ 467 C.S. 1, 104 S.Ct. 2187, 81 L.Ed.2d 1,1984); L'nitfd States 1'. Dou', 357 U.S. 17, 26, 78 'c"'. S,C1-::t 2387 S.Ct. 1039, 1046, 2 L.Ed.2d 1109 (1958). Similarly, a governmental body may ac- quiesce in a judicial declaration that one of its ordinances has affected an unconstitu- tional 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 not resoh'ed whether abandonment by the government requires payment of com- pensation for the period of time during which regulations deny a landowner aIJ use of his land. In considering this question, we find sub- stantial guidance in cases where the government has only temporarily exercised its right to use prh'ate property. In Unit- ed States v. Dou', supra, at 26, 78 S.Ct., at 1046, though rejecting a claim that the Government may not abandon condemna- tion proceedings, the Court obsen'ed that abandonment "results in an alteration in the property interest taken-from [one of] fuIJ ownership to one of temporary use and occupation. . . . In such cases compensa- tion would be measured by the principles normally governing the taking of a right to use property temporarily. See Kimball Laundry Co. 1'. Fnited States, 338 U.S. I, 69 S.Ct. 1434, 93 L.Ed. 1765 [1949); United States t'. Petty -'Jotor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946); United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 [1945)." Each of the cases cited by the Dow Court inyolved appropriation of private property by the United States for use during World War II. Though the takings were in fact "temporary," see Petty Motor Co., supra, 327 U.S., at 375, 66 S.Ct., at 598, 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 determin- ing the proper measure of the monetary relief to which the property holders were entitled. See k'imball Laundry Co., su- pra, 338 FS.. at 4-21, 69 S.Ct., at 1437- 1445; Petty J1otor Co., supra, 327 U.S., 377-381, 66 S.Ct., at 599-601; General Mo- 2388 107 SUPREME COURT REPORTER tors, supra, 323 U.S., at 379-384, 65 S.Ct., at 360-362. [6,7) 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, 101 S.Ct., at 1307 (BRENNAN, J., dissenting)("Nothing in the Just Compensation Clause suggests that 'takings' must be permanent and irrey- ocab1e"). It is axiomatic that the Fifth Amendment's just compensation provision is "designed to bar Government from forc- ing some people alone to bear public bur- dens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S., at 49, 80 S.Ct., at 1569. See also Penn Cen- tral Transportation Co. t'. New York City, 438 U.S., at 123-125, 98 S.Ct., at 2658-2659; Monongahela Navigation Co. t'. United States, 148 U.S., at 325, 13 S.Ct., at 625. 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 Supreme Court of California denied a hearing in th~ 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 bur- den on the property owner in extinguishing such an interest for a period of years may be great indeed. See, e.g., United States t'. General Motors, supra. Where this bur- den results from governmental action that amounted to a taking, the Just Compensa- tion Clause of the Fifth Amendment re- quires that the government pay the land- owner for the value of the use of the land during this period. Cf. Uniled States 1'. Cau,<:by, 328 U.S., at 261, 66"S.Ct., at 1065- 1066 ("It is the owner's loss, not the taker's ~,._..."....~",_........__._._.,_,...~.".,,,._...~_.,.,,_.,__C" gain, which is the measure of the \'alu , the property taken"). Im'alidation of e;. ordinance or its successor ordinance liftt~ thi~ pe~od of ~i,me, thoug?, com'erting t:,;. taking mto a temporary one, is not ' sufficient remedy to meet the demands lJ: the Just Compensation Clause. . Appellee argues that requiring compt:: sation for denial of all use of land prior ~(. im'alidation is inconsistent with tb Court's decisions in Danforth 1'. ['nit(/'; States, 308 U.S. 271, 60 S.Ct. 231, 84 L.E; 240 (1939), and Agins v. Tiburon, 44i LS 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (19~(o: In Danforth, the landowner contended tt,,,: the "taking" of his property had occum..:; prior to the institution of condemn:ni(,:. proceedings, by reason of the enactmer,t (.: the Flood Control Act itself. He claim,.,: that the passage of that Act had diminis~,(',: the value of his property because the ~,b:. embodied in the Act required condemna:i'.I:. of a flowage easement across his propt-r.y The Court held that in the context of C(I:.' demnation proceedings a taking does fI," occur until compensation is determined ar,n paid, and went on to say that "[a] reductio:, or increase in the value of property m~,y occur by reason of legislation for or t~:l' beginning or completion of a project," 1,:;: "[s]uch changes in value are incider,t.5- (.: ownership. They cannot be considered a~ :: 'taking' in the constitutional sense." Dr. Ii' forth, supra, 308 U.S., at 285, 60 S.Ct., ::.; 236. Agins likewise rejected a claim th~:t the city's preliminary acth-ities constitute: a taking, saying that "[m]ere fluctuatj(,r.~ in value during the process of governmer.. tal decisionmaking, absent extraordinary delay, are 'incidents of ownership.''' Sf(- 447 U.S., at 263, n. 9, 100 S.Ct., at 2143, n. 9. [8,9) But these cases merely stand for the unexceptional propositIon that the valu' ation of property which has been takel: must be calculated as of the time of the taking, and that depreciation in value d the property by reason of preliminary activo ity is not chargeable to the government. Thus, in Agin,c:, we concluded that the prf' FIRST E:\GI liminary acth-ity did not ,,'ould require a cons ide: these decisions to say th regulatory taking may ( Jenged ordinance has ul, in\'alid.lo nO) ~othing we say to abrogate the principl. to exercise the power of a legislative function, " Congress alone to detE Hou$ing Authority 1'. 229, 240, 104 S.Ct. 2321 lS6 (1984), quoting Berl CS. 26, 33, i5 S.Ct. 9E (1954). Once a court taking has' occurred, t tains the ""hole range li\Oailable-amendment withdrawal of the invali exercise of eminent do' not, as the Solicitor Gen mit a court, at the b person, to require the exercise the power of e: Brief for 'Cnited States 22. We merely hole government's acth-iti worked a taking of all subsequent action by 1 relieve it of the duty tJ tion for the period duri was effective. \\'e also point out tf the complaint which v purposes of our decisi( nance in question den: of its property. We the facts presented, a deal with the quite dii: would arise in the cas( 10. H'illicmsoll Count; Comm'n, is not to th, notcd that "no con~tit; un,i1 ju~t compen!'o:ition U.S., at 194, n. 13. 105 S s,atement, howncr. "';: of wh("lhcr the comtitu review ::nd did nOI e~t; is unavailable f (IT gover before compcn~"li0n Thou!;h. as a mallcr of FIRST E!'\GLISH EVAN. LUTH. CH. v. LOS A!'\GELES CTY. Cite as 107 S.Cl. 2378 (1987) 2389 ", litninary activity did not work a taking. It :r ,,"ould require a considerable extension of ~- these decisions to say that no compensable rt'~ulatory taking may occur until a chal- lenged ordinance has ultimately been held in,'alid.10 [101 !'\othing we say today is intended to abrogate the principle that the decision w exercise the power of eminent domain is a legislath'e function. "'for Congress and ('(Ingress alone to determine.''' Hawaii HOl/sing Authority 1'. Midk((f. 467 U.S. 229. 240, 104 S.Ct. 2321, 2329, 81 L.Ed.2d 1S6 \19841, quoting Berman v. Parker, 348 r.s. 26, 33, /5 S.Ct. 98, 103, 99 L.Ed. 27 \1954). Once a court determines that a tdking has occurred, the go\'ernment re- !.Sins the whole range of options already an,i1able-amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain. Thus we do not, as the Solicitor General suggests, "per- mit a court, at the behest of a private jJi:'rson, to require the .,. Government to exercise the power of eminent domain. . . . " Brief for tnited States as Amicus Curiae 22. We merely hold that where the go\'ernment's activities have already worked a taking of all use of property, n~ subsequent action by the government can relieYe it of the duty to provide compensa- tj(ln 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 ordi- nance 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 10. Williamsoll COU/1f)' Regional Planning Comm'Il, is not to the contrar\". There, we noted that "no constitutional \"i~lation occurs ur.:il just compensation has been denied." 4i3 r.s., at19~, n. 13, 105 S.C1., at 3]21. n. 13. This statement, however. was addressed to the issue of whether the constitutional claim was ripe for review ar.d did not eswblish that compensation IS una\aiJ;;bJe for government acth'ity occurring c.cfore compensation is actuaJh~ deni<-d. ThoUfh, as a mattcr of law, an iIlegi'timate tak. obtaining building permits, changes in zon- ing ordinances, variances, and the like which are not before us. V'le realize that . even our present holding will undoubtedly lessen to some extent the freedom and flexibility of land-use planners and govern- ing bodies of municipal corporations when enacting land-use regulations. But such consequences necessarily flow from any de- cision upholding a claim of constitutional right; many of the provisions of the Consti- tution 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 Jus- tice Holmes aptly noted more than 50 years ago, "a strong public desire to improye the public condition is not enough to warrant achie,-ing the desire by a shorter cut than the constitutional way of paying for the change." Pennsyh'ania Coal Co. r. Ma- hon, 260 U.S., at 416, 43 S.Ct" at 160. Here we must assume that the Los An- geles County ordinances have denied appel- lant all use of its property for a considera- ble period of years, and we hold that inyali- dation of the ordinance without payment of fair yalue for the use of the property dur- ing this period of time would be a constitu- tionally insufficient remedy. The judg- ment of the California Court of Appeals is therefore r€\'ersed, and the case is remand- ed for further proceedings not inconsistent with this opinion. It is so ordered. ~ ~, Justice STEVE~S, with whom Justice BLACK!\fCN and Justice O'CO!'\!'\OR join as to Parts I and III, dissenting. One thing is certain. The Court's deci- sion today will generate a great deal of ing might not occur until the government refus. es to pay, the interference that effects a taking might begin much earlier, and compensation is measured from that time. See Kirby Foresl 111- duslries, Inc. ,... Vlliled Slales, 467 V.S. I. 5, 10~ S,Ct. 2187, 2191, 81 L.Ed.2d 1 (19&4) (Where Government physically occupies land without condemnation proceedings, "the owner has a right to bring an 'inH'rse condemnation' suit 10 recover the value of the land all 11;e cote of the itllrusiotl by Ihe Govemmellf'). 2390 107 SUPREME COURT REPORTER FIRST ...~. r: litigation. Most of it, I belie\'e, will be unproducth'e. But the mere duty to de- fend the actions that today's decision will spawn will undoubtedly ha\.e 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 self- imposed question in a superficial and, I belieye, dangerous way. Four flaws in the Court's analysis merit special comment. First, the Court unneces- sarily and imprudently assumes that appel- lant's complaint alleges an unconstitutional taking of Lutherglen. Second, the Court distorts our precedents in the area ofregu- Jatory 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 al- ready decided that it will neyer allow a state court to grant monetary relief for a temporary regulatory taking, and then uses that conclusion to reverse a judgment which is correct under the Court's own theories. Finally, the Court errs in con- cluding 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. .~ :- ~- . ~ r . d. .\.; ( I In the releyant portion of its complaint for inyerse condemnation, appellant al- leged: 1. The Superior Court's entire explanation for its decision to grant the motion to strike reads as follows: "However a careful rereading of the Agir25 case persuades the Court that when an ordinance, e\'en a non.zoning ordinance, deprives a person of the total use of his lands, his challenge to the ordinance is bv wav of declaraton' relief or possibly mand;mus,:' App. 26. - 2. The Court of Appeal described the Agim case in this way: "16 "On January 11, 19i9, the Count\. adopted Ordinance ~o. 11,855, which pr~. \'ides: "'Section 1. A person shall not COn- struct, reconstruct, place or enlarge am' building or structure, any portion ~f which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Can- yon, \-icinity of Hidden Springs, as shown on Map 1\0. 63 1\1L 52, attached hereto and incorporated herein by reference as though fully set forth.' " holding that the \-iolation of either tion or the Federa it assumed, argu.e ,'iolation had beer This Court clea decide this case . plaint did not all Federal Constitu~ ayoid the noyel c( addresses. Eyen Court's lack ofse it is imperatiye t does not hold tha compensation as ~ tection regulation ~o matter whethE ed as' one that c "17 "Lutherglen is within the flood protec- tion area created by Ordinance ~o. 11.- 855. on its face 'depriv tiallv all reasonabl sup;a, 24 CaJ.3d, ; 598 P.2d 25), and interfere with plai or impermissibly d Supreme Court fur declaraton' relief nation [was] the . circumstances.' (j ment, A14. 3. "The familiar ru cure in federal (:0\ petition or appeal. SUPPOTt the judgmt different from tho low rested its decis nie Generale, 309 6i2, 84 L.Ed. 549 American R. Exp. ( 560, 563, 68 L.Ed. dridge ,'. Willian25. 90 S.Ct. 1153, 11: (970). It is also' not bound by a (much less an as states a federal c Baxle'~ 355 t..S. :; L.Ed.2d 302 (19: Gurhrie Cemer ,'. . 46 S.Cl. 135, n7, cially in the taking the deprivation arf drain of litigation great to permit ca more substantial ir violation may ha\'! Inc. ". Shre,...<bur; 1026 (CA3), ccrt. d, 2482, 95 L.Ed.2d ' "18 "Ordinance ~ o. 11,855 denies Fim Church all use of Lutherglen." App. 49. Because the Church sought only compen' sation, and did not request im'alidation of the ordinance, the Superior Court granted a motion to strike those three paragraphs, and consequently neyer decided whethH they alleged a "taking." I The Superior Court granted the motion to strike on the basis of the rule announced in Agins 1'. Tiburon, 24 Cal.3d 266, 157 Cal.Rptr. 372. 598 P.2d 25 (1979). '[nder the rule of that case a property owner who claims that a land-use restriction has taken property for public use without compensation, must file an action seeking in\'aJidation of the regu- lation, and may not simply demand compen- sation. The Court of Appeal affirmed on the authority of Agins alone,2 also without "In Agirzs 1'. Cit)' of Tiburon (1979) 24 C:Jl.3d 266, 15i Cal.Rptr. 372, 598 P.2d 25, the plaintiffs filed an action for damages in inverse condem- nation and for declaratory relief againstlhe City of Tiburon, which had passed a zoning ordI- nance in part for 'open space' that would han' permitted a maximum of five or a minimum of one dwelling units on the plaintiffs' fi"e acres. A demurrer to both causes of action was sus. tained, and a judgment of dismissal \\'"s en- tered. The California Supreme Court :Jffirmed the dismissal. finding that the ordinance did not FIRST E~GLISH EVA~. LeTH. CH. ". LOS A~GELES CTY. CUe as 107 S.Ct. %378 (1987) 2391 holding that the complaint had alleged a \'iolation of either the California Constitu- tion or the Federal Constitution. At most, it assumed, arguendo, that a constitutional \.jolation had been alleged. This Court clearly has the authority to decide this case by ruling that the com- plaint did not allege a taking under the federal Constitution,3 and therefore to avoid the no\"el constitutional issue that it addresses. E\"en though I believe the ({\urt's lack of self-restraint is imprudent, it is imperath'e to stress that the Court does not hold that appellant is entitled to compensation as a result of the flood pro- tection regulation that the County enacted. ~o matter whether the regulation is treat- ed as one that deprives appellant of its " on its face 'deprive the landowner of substan. tially all reasonable use of his property: (Agins, sup,-a, 24 CaL3d. at p. 2i7, 157 Ca1.Rptr. 3i2. 595 P.2d 25). and did not 'unconstitutionally interfere with plaintiffs entire use of the land or impermissibly decrease its "alue' (ibid.). The Supreme Court further said that 'mandamus or declaratory relief rather than in\'erse condem- nation [was] the appropriate relief under the circumstances.' (Ibid.)." App. to Juris. State. ment, :\14. 3. "The familiar rule of appellate court proce- dure in federal courts [is] that, without a cross- petition or appeal. a respondent or appellee may wpport the judgment in his fa\'or upon grounds different from those upon which the court be- low rested its decision." McGoldrick \'. Compag. rzie Generale. 309 U.S. 430, 434, 60 S.Ct. 670, 6i2. 84 L.Ed. 849 (1940) citing Uniled Slales v. American R. Exp. Co., 265 U.S. 425, 435, 44 S.Ct. 560. 563. 68 L.Ed. 1087 (1924); see also Dan. dridge 1'. Williams, 397 U.S. 4i1, 475-476, n. 6, 90 S.Ct. 1153. 1156-57, n. 6, 25 L.Ed.2d 491 \19iO). It is also well settled that this Court is not bound b" a state court's determination (much less a~ assumption) that a complaint states a federal claim. See Slaub v. Cily of Baxley, 355 U.S. 313, 318, i8 S.Ct. 2n, 280, 2 L.Ed.2d 302 (1958); FirSI ,"'alio,/al Bank of Gu/hrie Cenler ,'. Anderson, 269 U.S. 341, 346, 4~ S.Ct. 135. 137. 70 L.Ed. 295 (1926). Espe. clally in the takings context, where the details of the deprh-ation are so significant, the economic drain of litigation on public resources is "too great to permit cases to go forward without a more sub51antial indication that a constitutional violation may have occurred." Pace Resources, Inc. 1'. Shre....<buT). To\<'nship, 808 F.2d 1023. J026 (C:\3). ccrt. denied. 482 L1.S. _. 107 S.Ct. 2482. 95 L.Ed.2d - (198i). _ -;:,~( ..;.... property on a permanent or temporary ba- sis, 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. I'. De- Benedictis, 480 U.S. -, -, 107 8.Ct. 1232, 1245, 94 L.Ed.2d 472 (1987), quoting Mug/er t'. Kansas, 123 U.S. 623, 665, 8 S.Ct. 273, 299, 31 L.Ed. 205 (1887). Thus, in order to protect the health and safety of the community,4 government may condemn unsafe structures, may close unlawful busi. ness operations, may destroy infected 4. See Keystone Biluminous Coal Assn. ,'. DeBen. edictis, 480 U.S. -, -, 107 S.Ct. 1232. -. 94 L.Ed.2d 472 (!98i) (coal mine subsidence); Goldblatt v. Hemps/ead. 369 U.S. 590. 82 S.Ct. 987, 8 L.Ed.2d 130 (1962) (rock quarry excava- tion); Miller ':'. Schoene, 2;6 U.s. 2i2, 48 S.Ct. 246, 72 L.Ed. 568 (! 928) (infectious tree dis- ease); Hadacheck 1'. Los Angeles, 239 l:.S. 394. 36 S.Ct. 143. 60 L.Ed. 348 (1915) (emissions from factory); Mugler 1'. Ka/lSas. 123 l'.S. 623. 8 5.Ct. 2;3, 31 L.Ed. 205 (! 887) (intoxicating liquors); see also Pelln Cenlral Tra/lSporTalioll Co. ". New }'ork City. 43811.S. 104, 145.98 S.Ct. 2646, 26;0. 57 L.Ed.2d 631 (19;8) (REH~. Q1:IST, J., dissenting) ("The question is whether the forbidden use is dangerous :0 the safety, health, or welfare of others"). ~1any state courts have reached the identical conclusion. See KeYSTone Biluminous, supra, 480 l'.S., at _. _. n. 22, 107 S.Ct.. at 1246. n. 22 (citing cases). In Keyslone Bituminous we explained that one of the justifications for the rule that health and safety regulation cannot constitute a taking is that indi"iduals hold their property subject to the limitation that they not use it in dangerous or noxious ways. 480 U.S., at -, n. 20. 107 S.Ct., at 1245. ~. 20. The Court's recent decision in United Slales v. Cherokee Nalion of Okla. homa, 480 U.S. -, 107 S.Ct. 148i. 94 L.Ed.2d 704 (198i). adds support to this thesis. There. the Court reaffirmed the traditional rule that when the l'nited States exercises its power 10 assert a na"igational servitude it does not "take" property because the damage sustained results "from the la\\ful exercise of a power lO which the intere~ts of riparian owners have always been subject." Jd.. at -, 107 S.Ct.. at 1490. ~ ~ ,- i .4''';', .., ${ ~';- ;c,...~. - !,~ .' ~}l..> ~f .:;~~;.., {it ~ !.~ ~t -"1; .'r~;~ }~:.' -:-. .c,~ rz:. ?i~~. i:',;" ~. j'. ~:f'~:.. ':"'" ~:':'1 ~"'."I '.' ~..~ i ~.. . . '. . ~ ~:; ! .. . .'.:) ~I ~ (J.: : f~t.'~ ~:'. fj) ~, 2392 107 SCPRE1\IE COljRT REPORTER ~7~ trees, and surely may restrict access to hazardous areas-for example, land on which radioactive materials haye been dis- charged, land in the path of a la\-a flow from an erupting yo]cano, or land in the path of a potentially life-threatening flood.s When a goyernmental entity imposes these types of health and safety regulations, it may not be "burdened with the condition that [it] must compensate such indh'idua] owners for pecuniary losses they may sus- tain, by reason of their not being permit- ted, by a noxious use of their property, to inflict injury upon the community." Jfu- gler, supra, 123 U.S., at 668-669, 8 S.Ct., at 300-301; see generally Keystone Bitu- minous, sup,'a, 480 U.S., at - --, 107 8.Ct., at - --. In this case, the legitimacy of the Coun, ty'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 as an "interim" measure "temporarily prohibiting" certain construc- tion in a specified area because the County " 5, See generally Plater, The Takings Issue in a Natural Setting: Floodlines and the Police Pow. er, 52 Tex.L.Re\'. 201 (1974); F. Bosselman, D. Callies, & J. Banta, The Takings Issue 147-155 (1973). ~- . ,. . t ~ 6. It is proper to take judicial r,otice of the ordi. nance. It proYides, in rele\'ant part: "ORDINANCE NO. II,S55. "An interim ordinance temporarily prohibit. ing the construction, reconstruction, placement or enlargement cf any building or structure within any portion of the interim flood protec. tion area delineated within ~1i!l Creek, yicinity of Hidden Springs, declaring the urgency ther~. of and that this ordinance shall take immediate effect. "The Board of SuperYisors of the Count\. of Los Angeles does ordain as follows: . "Section 4. Studies are now under way by the Department of Regional Planning in co~nec. tion with the County Engineer and the Los An. geles County Flood Control District, to de\'elop permanent flood protection areas for Mill Creek and other specific areas as part of a comprehen. si\'e flood plain management pr<!jecl. ~1aprjng and e\'aJuation of flc.od data has progrcss('d to the pc.in! whcre an interim Oood pro:cc:iO:J area in !\\ill Creck c;;n be dCWgnatC'd. De\'elop. ment is now occurring \~jch will encroach within the limits of the perm.,nent flood protec. Board belie\'ed the prohibition was "ur- gently required for the immediate preser, \'ation of the public health and safety'. Eyen if that were not true, the str~~g presumption of constitutionality that ap. plies to ]egis]ath-e enactments certainly re- quires one challenging the constitutionality of an ordinance of this kind to allege som~ sort of improper purpose or insufficient justification in order to state a co]orab].. federal claim for relief. A presumption of validity is particularly appropriate in thi~ case because the complaint did not eHn allege that the ordinance is im'alid, or pr:.y for a declaration of invalidity or an injunc. tion against its enforcement.~ Nor did it allege any facts indicating how the ordj, nance interfered with any future use of th.. property contemplated or planned by appel. ]ant. In light of the tragic flood and the loss of life that precipitated the safety reg- u]ations here, it is hard to understand how appellant ever expected to rebuild on Lm],. erg]en. tion area and which will be incompatible with the anticipated uses to be permitted within :he permanent flo"d protection area. If this orei. nance does not take immediate effect, said USeS will be established prior to the contemplated ordinance amendment. and once established ma\' continue after such amendment has bt'en made because of the proyisions of Article 9 (,f Chapter 5 of Ordinance No. 1494. "By reason of the foregoing facts this orei. nance is urgently required for the immediate preseryation of the public health and safety, and the same ~hall take effect immediately upon passage thcreof." App. to Juris. Statement 31- 32. 7. Because the complaint did not pray for an injunction ag;;inst enforcement of the ordi. nance, or a declaration that it is inyalid. but merely sought monetary relief, it is doul:otful that we ha\'e appellate jurisdiction under 28 11.S.c. ~ 1257(2). Section 1257(2) pro\'ides: "(2) By appeal, where is drawn in question the \'alidity of a statute of any state on the ground of its being repugnant to the Constitu. tion, treaties or laws of the l'nited States, and the decision is in fayor of its \'alidity." Eyen if we do nO! haye appellate ju~iseiclion, howe\'Cr. presumably lhe Cc.urt would e:xercise its certiorari jurisdiction pursuant to 28 V.S.c. ~ 1257(3). "'. FIRS' Thus, although tions of this com: its discussion of does not, and c( dents, hold that alleged a taking to preseT\'e life constitute a taki States Constitut . that the ordinan glen should be merits. There is no di that a regulati must be deemec nia Coal Co. r. 43 S.Ct. 158, When that hapl choice: it may ; may continue t those whose I usual case, eith satisfactory. I property is, of rogative of the the sovereign regulation, re: cases, mitigau regulation so I diminution in caused while i: as a u.king of however, that case. There which even tl: regulation ha! that invalidatic the damage er. ]a be 1. This, h: the Court call~ contrary to t fact that a rl w.king if allo\\ rlently is by question whet lation has alrE H:\"ere that 3 FIRST ENGLISH EVAN. LUTH. CH. Y. LOS A~GELES CTY. CUe as \07 S.Cl. 2378 (1987) 2393 Thus, although the Court uses the allega- tions of this complaint as a springboard for its discussion of a discrete legal issue, it does not, and could not under our prece- dents, hold that the allegations sufficiently alleged a taking or that the County's effort to preserve life and property could e\'er constitute a taking. As far as the United States Constitution is concerned, the claim that the ordinance was a taking of Luther- glen should be summarily rejected on its merits. II There is no dispute about the proposition that a regulation which goes "too far" must be deemed a taking. See Pennsyll'Q- Ilia Coal Co. t'. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). When that happens, the Government has a choice: it may abandon the regulation or it may continue to regulate and compensate those whose property it takes. In the usual case, either of these options is who]]y satisfactory. Paying compensation for the property is, of course, a constitutional pre- rogative of the so\'ereign. Alternatively, if the sovereign chooses not to retain the regulation, repeal will, in virtually a]] cases, mitigate the overall effect of the reguiation so substantia]]y that the slight diminution in value that the regulation caused while in effect cannot be classified as a t::.king of property. 'Ve may assume, however, that this may not always be the case. There may be some situations in which even the temporary existence of a regulation has such severe consequences that invalidation or repeal will not mitigate the damage enough to remove the "taking" label. This hypothetical situation is what the Court calls a "temporary taking." But, contrary to the Court's implications, the fact that a regulation would constitute a taking if allowed to remain in effect perma- nently is by no means dispositive of the question whether the effect thet the regu- lation has already had on the property is so seH:'re that a taking occurred during the period before the regulation was invalidat- ed. A temporary interference with an own- er's use of his property may constitute a taking for which the Constitution requires that compensation be paid. At least with respect to physical takings, the Court has so held. See ant.e, at 2387-2388 (citing cases). Thus, if the Government appropri- ates a leasehold interest and uses it for a public purpose, the return of the premises at the expiration of the lease would obvi- ously not erase the fact of the Go\'ern- ment's temporary occupation. Or if the Government destro~'s a chicken farm by building a road through it or flying planes over it, removing the road or terminating the flights would not palliate the physical damage that had already occurred. These examples are consistent with the rule that even minimal physical occupations consti- tute takings which give rise to a duty to compensate. See Loretto t'. Teleprompter Manhattan CATV Corp.. 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). But our cases also make it clear that regulatory takings and physical takings are very different in this, as well as other, respects. While virtually all physical inva- sions are deemed takings, see, e.g.. Loret- to, supra; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), a regulatory program that adverse- ly affects property values does not consti- tute a taking unless it destroys a major portion of the property's value. See Key- stone Bituminous, 480 U.S., at -, 107 S.Ct., at -; Hod€l1'. Virginia Swiace Mining & Reclamation Assn., 452 U.S. 264, 296, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1 (1981); Agins t'. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). This diminution of value inquiry is unique to regulatory takings. Unlike phys- ical invasions, which are relatively rare and easily identifiable without making any eco. nomic analysis, regulatory programs con- stantly affect property values in countless ways, and only the most extreme regula. tions can constitute takings. Some dh'id. ~ ~ 2394 107 Sl"PREME COURT REPORTER FIRST E I ~ ing line must be established between e\'ery- day regulatory inconveniences and those so severe that they constitute takings. The diminution of value inquiry has long been used in identifying that line. As Justice Holmes put it: "Government hardly could go on if to some extent \'alues incident to property could not be diminished without paying for every such change in the gener- al law." Pennsylvania Coal, supra, 260 U.S., at 413, 43S.Ct., at 159. It is this basic distipction between regulatory and physical takings that the Court ignores to- day. Regulations are three dimensional; they have depth, width, and length. As for depth, regulations define the extent to which the owner may not use the property in question. With respect to width, regula- tions define the amount of property encom- passed by the restrictions. Finally, and for purposes of this case, essentially, regula- tions set forth the duration of the restric- tions. It is ob\'ious that no one of these elements can be analy~ed alone to evaluate the impact of a regulation, and hence to determine whether a taking has occurred. For example, in Keystone Bituminous we declined to focus in on any discrete seg- ment of the coal in the petitioners' mines, but rather looked to the effect that the restriction had on their entire mining project. See 480 U.S., at -, 107 S.Ct., at -; see also Penn Central, supra, 438 U.S., at 137, 98 S.Ct., at 2665 (looking at owner's other buildings). Similarly, in Penn Central, the Court concluded that it was error to focus on the nature of the uses which were prohibited without also examining the many profitable uses to which the property could still be put. 438 U.S., at 130-131, 98 S.Ct., at 2662; see also Agins, supra, 447 U.S., at 262-263, 100 S.Ct., at 2142; Andrus 1'. Allard, 444 U.S. 51, 64-67, 100 S.Ct. 318, 326-327, 62 L.Ed.2d 210 (1979). Both of these factors are essential to a meaningfttl analysis of the economic effect that regulations have on the yalue of property and on an owner's lOt 7 ... \,~ c. ...... r-- ... t c reasonable im'estment-based expectations with respect to the property. Just as it would be senseless to ignore these first two factors in assessing the economic effect of a regulation, one cannot conduct the inquiry without considering the duration of the restriction. See genera]],. Williams, Smith, Siemon, ~1andelker, &. Babcock, The White River Junction Mani- festo, 9 Vt.L.Re\'. 193, 215-218 (Fall 19841. For example, while I agreed with the Chief Justice's view that the permanent reHric- tion on building inyoh'ed in Penn Central constituted a taking, I assume that no one would have suggested that a temporary freeze on building would have also consti- tuted a taking. Similarly, I am confident that even the dissenters in Keystone Bitu- minou.s would not have concluded that the restriction on bituminous coal mining would have constituted a taking had it sim- ply required the mining companies to delay their operations until an appropriate safety inspection could be made. On the other hand, I am willing to as- sume that some cases may arise in which a property owner can show that prospective invalidation of the regulation Cannot cure the taking-that the temporary operation of a regulation has caused such a sigr,jfi: cant diminution in the property's '-alue that compensation must be afforded for the tak- ing that has already occurred. For this ever to happen, the restriction on the use of the property would not only have to be a substantial one, but it would have to re- main in effect for a significant percentage of the property's useful life. In such a case an application of our test for regula- tory takings would obviously require all inquiry into the duration of the restrictit'l1, as well as its scope and severity. See Williamson Planning Comm'n 1'. Hamil- ton Bank, 473 U.S. 172, 190-191, 105 S.C!. 3108, 3119, 87 L.Ed.2d 126 (1985) (refusing to evaluate taking claim when the long- term economic effects were uncertain be- cause it was not clear that restrictions would remain in effect permanently). The cases that thE the proposition that between temporary ~ see ante, at 2387, a all deal with physic diminution of valUE None of those case state certainly may aI's home for a m compensation by leI: occupation "tempor that ha\'e to do witt regulatory takings? a constitutional dis1 manent restriction economic \'alue of 1 tion-perhaps one-t that merely postpon property for a frac presumably far les~ former instance, no the latter case, th. that compensation pro\'ided. The COt explain these irre, stead, without any mation into our re the Court boldly ; property owner m~ regulation would c lowed to stand, the damages for the pE enactment and its 8. In Uniled Slales " 1039, 2 L.Ed.2d 1]( had "entered into p! laying the pipe line 19,78 S.Ct., at 10.B Uniled Stales, 338 t: 1765 (1949), the \.:r possession of the "the facilities of th equipment." Id.,' ~ L'niled Slales \'. Pell S.Ct. 596, 90 L.Ed. . acquired by conder by tenants and ore In United SUl/es ,-- U.S. 373, 65 S.CI. :: Go\'ernment occur building. 9. The Court make explain why Ihe he FIRST ESGLISH EVAN. LUTH. CH. v. LOS ASGELES CTY. Cite as 107 S.CI. 1378 (1987) 2395 The cases that the Court relies upon for the proposition that there is no distinction between temporary and permanent takings, see ante, at 2387, are inapposite, for they all deal with physical takings-where the diminution of value test is inapplicable.@ None of those cases is controversial; the state certainly may not occupy an individu- al's home for a month and then escape compensation by leaving and declaring the occupation "temporary." But what does that have to do with the proper inquiry for regulatory takings? Why should there be a constitutional distinction between a per- manent restriction that only reduces the economic ,'alue of the property by a frac- tion-perhaps one-third-and a restriction that merely postpones the development of a property for a fraction of its useful life- presumably far less than a third? In the former instance, no taking has occurred; in the latter case, the Court now proclaims that compensation for a taking must be provided. The Court makes no effort to explain these irreconcilable results. In- stead, without any attempt to fit its procla- mation into our regulatory takings cases, the Court boldly announces that once a property owner makes out a claim that a regulation would constitute a taking if al- lowed to stand, then he or she is entitled to damages for the period of time between its enactment and its invalidation. 8. In L'niled Slales v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958), the United States had "entered into physical possession and began laying the pipe line through the tract." Id., at 19,78 S.Ct., at 1043. In Kimball Laundry' Co. v. Uniled Slales, 338 U.S. I, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949), the l~njted States Army had taken possession of the laundry plant including all "the facilities of the company, except delivery equipment." Id., at 3, 69 S.Ct., at 1436. In Uniled Slales \'. Pm)' MOlar Co., 327 U.S. 372, 66 S.Ct. 596,90 L.Ed. 729 (1946), the United States acquired b)' condemnation a building occupied by tenants and ordered the tenants to vacate. In Uniled Slales ". General MOlors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945), the GOHrnment occupied a portion of a leased building. 9. The Court makes only a feeble attempt to explain why the holding in Agins and DallforTIz Until today, we have repeatedly rejected the notion that all temporary diminutions in the nlue of property automatically acti- vate the compensation requirement of the Takings Clause. In Agins, we held: "The State Supreme Court correctly re- jected the contention that the municipali- ty's good-faith planning acth'ities, which did not result in successful prosecution of an eminent domain claim, so burdened the appellants' enjoyment of their proper- ty as to constitute a taking. . .. Even if the appellants' ability to sell their proper- ty was limited during the pendency of the condemnation proceeding, the appel- lants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are 'incidents of ownership. They cannot be con- sidered as a "taking" in the constitution- al sense.''' 447 U.S., at 263, n. 9, 100 S.Ct., at 2143, n. 9, quoting Danforth 1'. United St.ates, 308 U.S. 271, 285, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939).9 Our more recent takings cases also cut against the approach the Court now takes. In Willian'LSon, supra, and JfacDonald, Sommer & Frates 1'. County of Yolo, 4i7 U.S. -, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986), we held that we could not review a taking claim as long as the property owner had an opportunity to obtain a variance or .-1 '~t:~;: ~"~ ~r:~.; "'~'.'.' ,~""if.?-' ~: . ..:...... . :,'1: :: 1$... ~:'~; 3t, t:~~_ p- -,-';~:~. . ;. (:.f:-:- ". ~': '!".i;' ";" .:>>........ . ,<-' is not controlling here. It is tautological to claim that the case stands for the "unexception- al proposition that the valuation of propeny which has been taken must be calculated as of rhe lime of rhe raking." An/e, at 23SS (emphasis added). The question in Dallforlh was when the taking occurred. The question addressed in the rele\'ant ponion of Agins was whether the tem- porary nuctuations in \'a)ue themseh'es consti- tuted a taking. In rejecting the claims in those cases, the Coun necessarily held Ihat the tempo. ran' effects did not consiitute takincs of their ow~ right. The cases are therefore directly on point here. If even the tempor:lry effects of a decision to condemn, the ultimale taking, do not ordinarih' constitute a taking in and of themselves, then a forTiori, the temporary ef. fects of a regulation should nOI. 2396 107 SUPREME COL"RT REPORTER ~~. ~~ .. some other form of relief from the zoning authorities that would permit the develop- ment of the property to go forward. See William.son, supra, 473 U.S., at 190-191, 105 S.Ct., at 3119; County of Yolo, supra, 477 U.S., at -, 106 S.Ct., at -. Im- plicit in those holdings was the assumption that the temporary deprivation of all use of the property would not constitute a taking if it would be adequately remedied by a belated grant of approval of the develop- er's plans. See Sallet, Regulatory "Tak- ings" and Just Compensation: The Su- preme Court's Search for a Solution Contin- ues, 18 Urb.Law. 635, 653 (1986). The Court's reasoning also suffers from severe internal inconsistency. Although it purports to put to one .side "normal delays in obtaining building permits, changes in zoning ordinances, variances and the like," ante, at 2389, the Court does not explain why there is a constitutional distinction be- tween a total denial of all use of property during such "normal delays" and an equal- ly total denial for the same length of time in order to determine whether a regulation has "gone too far" to be sustained unless the Government is prepared to condemn the property. Precisely the same interfer- ence with a real estate developer's plans may be occasioned by protracted proceed- ings which terminate with a zoning board's decision that the public interest would be served by modification of its regulation and equally protracted litigation which ends with a judicial determination that the exist- ing zoning restraint has "gone too far," and that the board must therefore grant the developer a variance. The Court's ,~ : r- ... t c 10. Whether delays associated with a judicial proceeding that terminates with a holding that :; regulation WllS not authorized by state Jaw would be a "normal delay" or a temporary tak. ing depends, 1 suppose, on the unexplained ra. tionale for the Court's artjficial distinction. 11. "[T]he Constitution measures a taking of property not by what a State says, or what it intends, but by what it does." Hughes v. Wash. ingTon, 3E9 U.S. 290, 298, 88 S.C!. 438, 443, 19 L.Ed.2d 530 (196;) (Stewart, J., concurring). The fact that the effects of tQe regulation are stopped by judicial, as opp~sed to administra. analysis takes no cognizance of these re~li- ties. Instead, it appears to erect an artifi. cial distinction between "normal delays" and the delays involved in obtaining a c~ur. declaration that the regulation constitute~ a taking.lo In my opinion, the question whether G "temporary taking" has occurred should not be answered by simply looking at tn;, reason a temporary interference with ~r. owner's use of his property is terminated.l: Litigation challenging the validity of ., land-use restriction gives rise to a d~J.,v that is just as "normal" as an adminis.r~. tive procedure seeking a variance or .,:, approval of a contro\'ersial plan.12 Ju;.: because a plaintiff can prove that a lanc. use restriction would constitute a taking jf allowed to remain in effect permanem:y does not mean that he or she can ..]:'0 prove that its temporary application rose :', the level of a constitutional taking. III The Court recognizes that the Califof!",i;, courts have the right to adopt im'alidat)(I:, of an excessive regulation as the appro}lri. ate remedy for the permanent effects (.f overburdensome regulations, rather th:,:. allowing the regulation to stand and ordd' ing the government to afford compensati(.:-, for the permanent taking. See ante. ;,1 2388; see also County of Yolo, supra, 477 U.S., at -, 106 S.Ct., at - (WHITE. ,1.. dissenting); San Diego Gas & Electric (0. 'I.'. San Diego, 450 U.S. 621, 657, 101 8.(1- 1287, 1306, 67 L.Ed.2d 551 (1981) (BRE\. ~A~, J., dissenting). The difference bt.-. live decree, should not affect the question of whether compensation is required. 12. St"tes may surely provide a forum in their couns for review of general challenges to 7..l'!~. ing ordinances and other regulations. SuCh~. procecure then becomes part of :he "normal" process. Indeed, when States haw set up sue.: procedures in their courts, we ha\.e requircC resort to those processes before considering ta~' ings c1"ims. See Wilialllsoll, Pla/l/Iillg COllOm ,; \'. Hamilroll Balik, 4;3 U.S. 172, 10S S.Ct. 3JOS. 8; LEd.2d 126 (1985). FIRST E~GL: t\\'een the!'-e two remediei rial than one might aSSUlT; in\'aJidates a regulation, t E,;ecuti\"e Branch must t! er to condemn the prof proceed with the regulat the other hand, if the co pensation for ~ pe~manel fcuti\'e or Leg1s1at1ve Br peal the regulation and permanent ~king. T?e fore. is only m what w111 of ~gi!'-lative or Execut ~cholars have debated tho of the alternate approach ration of powers concer concern is with a state ( which procedure it com priate. Ca}iiornia is full cide how it wishes to de tion of powers implicatio routinely u!'-es.H Once it is recognized' dEal with the permanent in\"alidating objectionabl comes clear that the ( Appeal's decision in tl affirmed. Even if this 5t.ating that one who m: a pEormanent taking is tled to some compensa rary aspect of the t: Su"tes still ha\"e the ril perm"nent aspect of a ing the regulation. 1 California courts ha\"€ They ha\'e refused to 1 plaint which sought which did not contain clara tor\" in\'alida tion ' clEarly "required by ( 13. Sec. e.g., !\tandc:lker, Compensation Issue. tl ; 119S 1); Williams, Smi:t B;,\:ocoek. The White Rh \'I.L.R(\'. 193, 233-2:?-4 Kanncr, Thoughts on t .Ita,;ife.':o: A Reply t, \'iews on Just Comp' T"king of Property. 19 ~O.1-iI2 (1986); Comn (,r Ju,t Inv31idation: T FIRST E~GLISH EYA:'\. Ll'TH. CH. \'. LOS A~GELES CTY. Cite as 107 S.Cl. 1378 (1987) 2397 ~l.'en the..e t\\:o remedies is I~ss substan- . I than one mIght assume. When a court 'Ilfr,lidates a regulation, the Legislath'e or Executiye Branch must then decide wheth- ,6 to condemn the property in order to ' 'proceed with the regulatory scheme. On the other hand, if the court requires com- 'pen::.ation for a permanent taking, the Ex- ecutiye or Legislatiye Branch may still reo peal the regulation and thus preyent the permanent taking. The difference, there- fore. is only in what will happen in the ease . of Legislatiye or Executh'e inertia. Many 'schc,lars haye debated the respectiye merits of the alternate approaches in light of sepa. , r'dtion of powers concerns.13 but our only C{,r,C'Hn is with a state COilrt S decision on ..-hjC'h procedure it comiders more appro- . pria,e. California is fully competent to de- cidE how it wi!;hes to deal with the separa. ticln of powers implications of the remedy it ; routinely uses.14 Once it is recognized that California may ;Oee,] with the permanent taking problem by ; ir:\'aJidating objectionable regulations, it be. f comes clear that the California Court of , Appears decision in this case should be ,affirmed. EYen if this CQurt is correct in . su,ting that one who makes out a claim for t;:. a pErmanent taking is automatically enti- , tIed to some compensation for the tempo- 14ry aspect of the taking as well, the 5:;'tes still haye the right to deal with the ~ permar.€nt aspect of a taking by inyalidat- in!!, the regulation. That is all that the Calife,mia courts haye done hi this case. Th...y haYe refused to proceed upon a com- p~"int which sought only damages, and which did not contain a request for a de- ('!"ratc'ry inndidation of the regulation. as clearly required by California precedent. 13. See, e.g" ~,'ande]ker. L:md l'se Takings: The Ct'mptm:lI:on Issue, 5 Ih5linp Const. LQ. 491 119~ll; Williams. Smilh, Siemon. ~'andeJker, & B~bc(.ck. The White Rher Junclion ~\anifesto, 9 \:l.l.Rl'\. 193, 233-:~34 (Fall 19S~); Berger & 1\~:1I1cr, Though1s on the 11 71i/f' Rinr .TIme/ion \1(;,):f"</0: A Reply 10 1r.e "Gang of Fh'e's" \ ;l\,~ (.n Ju~t Cornpen~~,lion for RegulatClt'~. !~\;jng of Property, 19 L(.yola (LA) L.Rev. .toS::, ,O~-712 (19St-); Commenl, Ju~t Compensation ('r JUSI In\'alidation: The Availability (,f a Dam- The Court seriously errs, therefore. when it claims that the California court held that "a land-owner who claims that his property has been 'taken' by a land-use regulation may not recoyer damages for the time before it is finally det.ermined that the regulation constitutes a 'taking' of his property." Ante, at 2381. Perhaps the Court discerns such a practice from some of the California Supreme Court's earlier decisions, but that is surely no reason for reversing a procedural judgment in a ease in which the dismissal of the complaint was entirely consistent with an approach that the Court endorses. Indeed, I am not all that sure how the California courts would deal with a land owner who seeks both inyalidation of the regulation and damages for the temporary taking that occurred pri- or t.o the requested invalidation. As a matter of regulating the procedure in its own state courts, the Caliic1rnia Su- preme Court has decided that mandamus or declaratory relief rather than inyerse con- demnation proYides "the appropriate re- lief," for one who challenges a regulation as a taking. Agins 1'. Tibu1'O?l, 24 Cal.3d. at 2'ii, 15i Cal.Rptr., at 3i8, 598 P.2d, at 31. This statement in Agins can be inter- preted in two quite different ways, First, it may merely require the property owner to exhaust his equitable remedies before asserting any claim for damages. Lnder that reading, a postponement of any consid- eration of monetary relief, or eyen a re- quirement that a "temporary regulatory taking" claim be asserted in a separate proceeding after the temporary interfer- ence has ended. would not violate the Fed- eral Constitution. Second, the Agins opin- ion may be read to indicate that California ages Remedy in Challenging Land Lse Regula- lions, 29 LCU. L.Re\', 711. 725-726 (1952). ~ ~ 14. Fc,r this same reason, the parties' and amieis' eunnicting claims about whether this Court'S cases, such as Hurley". Jo>ineaid, ~S5 t:.S. 95, 52 S.Ct. ~67, 76 L.Ed. 637 (932), pro\ide that com- pen~alion is a less intrusive remedy than invali. dation. are not relevant here. , " ..,),J 2398 107 SUPREME COURT REPORTER courts will ne\'er award damages for a temporary regulatory taking.ls Even if we assume that such a rigid rule would bar recovery in the California courts in a few meritorious cases, we should not allow a litigant to challenge the rule unless his complaint contains allegations explaining why declaratory relief would not provide him with an adequate remedy, and unless his complaint at least complies with the California rule of procedure to the extent that the rule is clearly legitimate. Since the First Amendment is not implicated, the fact that California's rule may be some- what "overbroad" is no reason for permit- ting a party to complain about the impact of the rule on other property owners who actually file complaints that call Califor- nia's rule into question. In any event, the Court has no business speculating on how the California courts will deal with this problem when it is presented to them. Despite the many cases in which the California courts have applied the Agins rule, the Court can point to no case in which application of the rule has deprived a property owner of his right- ful compensation. In criminal litigation we have steadfastly adhered to the practice of requiring the defendant to exhaust his or her state reme' dies before collaterally attacking a com'ic, tion based on a claimed violation of the Federal Constitution. That requirement is supported by our respect for the sovereign- ty of the several States and by our interest in having federal judges decide federal con- stitutional issues only on the basis of fully developed records. See generally Rose r. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The States' interest in controlling land-use development and in ex- i, 1 i IS. The California Supreme Coun's discussion of the policy implications in Agins is entirely con- sistent with the view that the court was choos- ing between remedies (invalidation or compen, sation) with respect to the permanent effect of a regulation, and was not dealing with the tempo- rary taking question at all. Subsequent Califor. nia Supreme Court cases applying the Agills rule do not shed light on thi~ question. ploring all the ramifications of a challE:r,~. to a zoning restriction should command t:~ same deference from the federal judicil,.."'l See Williamson, 473 U.S., at 194-19i, ~i( S.Ct., at 3121-3122. And our intert:s~ " avoiding the decision of federal con~';'~ . ~\.O...... tional questions on anything less tha~, ~ fully informed basis counsels against :...-. ing to decide whether equitable relief r;', forestalled a temporary taking until..'.... we know what the relief is. In short. 1:";"; if the California courts adhere to a r;;lt " never granting monetary relief for a ~,.:: porary regulatory taking, I believe ',. should require the property owner t(, 'l haust his state remedies before confron~::.; the question whether the net result of ~:~ state proceedings has amounted to a k:: porary taking of property without just ce,:: pensation. In this case, the Church sh..~, be required to pursue an action demali~:: .. invalidation of the ordinance prior to 8,,,., ing this Court's review of California's ;~ . cedures.16 The appellant should not be permiu<-c : circumvent that requirement by omi~t.:.. any prayer for equitable relief from :'.' complaint. I believe the CaliforniCl. :':. preme Court is justified in insisting t~_:: the owner recover as much of its proJ';:~:' as possible before foisting any of it o!; ;.' unwilling governmental purchaser. T:.. Court apparently agrees with this pro;'",. tion. Thus, even on the Court's own I.,,: cal view of temporary regulatory t.:;.L~.;' announced today, the California courts I,:,: the right to strike this complaint. IV There is, of course, . a possibility t!'.:~' land,use planning, like other forms of rq:'.: 16. In the habeas corpus context, we haw ~,:. that a prisoner has not exhausted his state rc::.' dies when the state court refuses to consider r.;' claim because he has not sought the apprc)rr::~' Slate remedy. See Woods 1'. ....icrslheimcr. ::: U.S. 211, 216, 66 S.Ct. 996, 999, 90 L.Ed. 11._ (1946); Ex parle Hawk, 321 l1.S. 114, II f--!. 64 S.CI. 448, 449~50, 88 L.Ed. 5i2 (1944). Tr..' rule should be applied with equal force he' FIRST E!\GLlS} Jation. will unfairly deprive l: right to de\'elop his propert and in the manner that will fConomic interests, The "r . g" doctrine announced in ~.oal places a limit on the pe: of land-use restrictions, I however, it is the Due Proce er than that doctrine that prl ert)' owner from improperly f~irly cond\1cted, or unneces ed governmental decisionn tion of the procedural safe! ed by the Due Process Clau :0 actions for damages u; t 1983, but I am not persua L~ the development of pre occasioned by fairly condu( Dye or judicial 'proceedings t,le. except perhaps. in thE circumstances. On the con \;nced that the publicint important governmental dE ~n orderly, fully informed' ties the temporary burdel that is the inevitable by-p cratic government. As I recently wrote: "The Due Process CIa teenth Amendment req' employ fair proceduresi 17. 11 is no answer to say tl policeman musl know the why not a planner?" San L Co. 1'. Sail Diego. 450 U.S. I S.Ct. 1287, 1309, n. 26, 67 (BRESSAS, J., dissenting). Court has repeatedly reCOI cannot establish any objec when a regulation becomes 1'. In'iI:g, 481 U.S. -, - -,95 L.Ed.2d - (1987 444 l'.S. 51, 65. 100 S.Ct. : 210 (]9i9); Penll Ce1llral.' 98 S.Ct., at 2658-2659. r. mand that land planners d eler confusing some of OUI cases may be, I do not belie open-end'ed and standardle I..kings cases are. As on eluded: "The chaotic state il especially likely that av, ages remedy will induce la ciaIs to stay well back of 1 they dare not cross." Jol fIRST E~GLlSH EVAN. LUTH.. CH. v. LOSA~GELES CTY. Cite as 107 S.Ct. 2378 (1987) 2399 .-ill unfairly depri\'e a citizen of the dere]op his property at the time the manner that will best seT\'e his . inttrests. The "regulatory tak. trine announced in Pennsylt'ania ees a limit on the permissible scope use restrictions. In my opinion, it is 'the Due Process Clause rath- ~at doctrine that protects the prop- . er from improperly moti\'ated, un- 'conducted, or unnecessarily protract- eTnnlt'ntal decisionmaking. Viola- the procedural safeguards mandat- the Due Process Clause will gi\'e rise . ns for damages under 42 D.S.C. , but I am not persuaded that delays d"re]opment of property that are . ~Ied by fairly conducted administra- 0: i~djcjal proceedings are compensa- 'f1;(.~,t perhaps in the most unusual .;.~nces. On the contrary, I am con- th;,t the public interest in ha\'ing .ant go\'ernmental decisions made in 'erly, fully informed way amply justi- 'the ttmporary burden on the citizen is the :ne\'itable by-product of demo- . ~on'rr.ment. I Ttocently wrote: "Tbe Due Process Clause of the Four- r.th Amendment requires a State to pJc,y fc.:r procedures in the administra- It :~ no arlswer to say that "[a)fter all, if a (::1"n must know the Constitution, then . nOI a planner?" San Diego Gas & El/U/ric ". Sell Diego, 450 U.S. 621, 661, n.,26, 101 . I~n, 1309, n. 2t-, 67 L.Ed.2d 551 (1981) -~~A~, J.. dissenting). To begin with, the !'l has repeatedly recognized that it itself not eSl"blish any objective rules to assess n G regulation becomes a taking. See Hodel h~';g. ~Sl l'.S. -, -, 107 S.Ct. 2076, ,95 L.Ed.2d - (1987); Andrus \'. Allard, \.'.$.51, fo5, 100 S.Ct, 318, 326, 62 L.Ed.2d 0(19,91; Penn Cell/ral, 438 U.S., at 123-124, set., al 26SS-~t-59. How then can it de. nci !hGt land planners do any bel1er? How. er (onfusing some of our criminal procedure ~ rr.ay be, I do not believe the\' have been as .r,.ended and standardless as our regulatory Jr'fs (a~es are. As one commentator con. . t:cd.<'~he .chaotic state ~f ta~ing law makes ';>(,..,.o\" llkelv that a\'aJlablhtv of the dam. . ~ rc!~,.:\" will' induce land. use 'planning offj. She,S I::.>: well ba~~ of the in\"isible line t~at . . C..l' ,~l't cross. Johnson, Compensallon tion and enforcement of all kinds of reg- ulations. It does not, howe\'er, impose the utopian requirement that enforce- ment action may not impose any cost upon the citizen unless the government's position is completely \'indicated. We must presume that regulatory bodies such as zoning boards, school boards, and health boards, generally make a good-faith effort to ad\'ance the public interest when they are performing their official duties, but we must also recog- nize that they will often become invoh"ed in contro\'ersies that they will ultimately lose. Even though these controversies are costly and temporarily harmful to the private citizen, as long as fair procedures are followed, I do not believe there is any basis in the Constitution for characteriz- ing the inevitable by-product of every such dispute as a 'taking' of pri\'ate prop- erty." Williamson, SUP1'O, 473 li,S., at 205, 105 S.Ct., at 3127 (opinion concur- ring in judgment). The policy implications of today's deci- sion are obvious and, I fear, far reaching. Cautious local officials and land-use plan- ners may avoid taking any action that might later be challenged and thus give rise to a damage action. Much important regulation will never be enacted,17 even for Invalid Land.Use Regulations, IS Ga.L-Rev. 559,594 (1981); see also Sallet, The Problem of Municipal Liability for Zoning and Land.t:'se Regulation, 31 Cath.l1.L-Re\". 4t-5, 478 (1982); Charles \', Diamond, 41 N.Y.2d 318, 331-332. 392 N.Y.S.2d 594, 604, 360 N.E.2d 1295, 1305 (197i); Allen \'. City and COUIl/~' of Honolulu, 58 Haw. 432, 439. 571 P.2d 328, 331 (1977). Another critical distinction between police ac. tivity and land.use planning is that not every missed call by a policeman gi\"es rise to ch'i1 liability; police officers enjoy individual immu. nity for actions taken in good faith. See Har. low \'. Fi/:.gerald. 457 U.S. 800, 102 S.C!. 2727, i3 L.Ed.2d 396 (1982); Da\'is ,'. Scherer, 468 V.S. 183, 104 S.Ct. 3012, 82 L-Ed.2d 139 (1984). Moreo\'Cr, municipalilies are not subject to ch'i1 liability for police officers' rouline judgment errors. See MOtlell \'. .".:cw l'ork Ci/)' Dep/. of Social Scn'ices, 436 V.S. fo5S, 98 S.Ct. 2018, 56 LEd.2d 611 (1978). In Ihe land regulation con. ie,.t, howe\'er, I am afraid Ihat any decision by a competent regulatory body may establish a "pol. ,. ,. 2400 107 SUPREME COURT REPORTER perhaps in the health and safety area. Were this result mandated by the Constitu- tion, these serious implications would haye to be ignored. But the loose cannon the Court fires today is not only unattached to the Constitution, but it also takes aim at a long line of precedents in the regulatory takings area. It would be the better part of ya]or simply to decide the case at hand instead of igniting the kind of litigation explosion that this decision will undoubted- ]y touch off. I respectfully dissent. Edward O'LO:SE, etc., et aI., Petitioners ". ESTA TE OF Ahmad Vthman SHABAZZ and Sadr.Vd.Din Nafis Mateen. :So. 85-1722. Argued March 24, 1987. Decid~d June 9, 1987. State prison inmates brought civil rights suit challenging certain prison regu- lations as \'io]ath-e of their First Amend- ment rights. The t:'nited States District Court for the District of New Jersey, 595 F.Supp. 928, John F. Gerry, J., concluded no constitutional yio]ation had occurred, and prisoners appealed. The Court of Ap- peals. ;82 F.2d 416, Adams, Acting Chief Judge, yacated and remanded. The Su- preme Court, Chief Justice Rehnquist, held that: (1) separate burden should not haye been placed on prison officials to proye that no reasonable method existed by which in- mates' religious rights could be accommo- dated without creating bona fide security problems: (2) prison officials had acted in reasonable manner by Erecluding Is]amic icy or cuswm" and gi\'l!" rise to Habilit), after inmates from attending weekly Friday reli, gious sen-ice and prison regulations to that effect thus did not \-iolate free exercise of religion clause of the First Amendment; and (3) eyen where claims were made under the First Amendment, Supreme Court would not substitute its judgment on diffi- cult and sensith-e matters of institutional administration for determinations of those charged with formidable task of running prison. Judgment of the Court of Appea]s re- yersed. Justice Brennan filed dissenting opin- ion in which Justices Marshall, B]ackmun. and Steyens joined. afternoons, and effect did not \ gion clause of t on policies were itY and rehabili ~eans of exer respect to othe and placing Is groupS so as t religious rights r.S.C.A. Const. ~. Constitution Prisons ~4( Eyen wherE First AmendmE I'reme Court we ment on difficu institutional adl :ions of those cT of running pris( 1. 1. Prisons ~4(1) Heightened scrutiny of prison regu]a- tions alleged]y impinging on inmates' con. stitutiona] rights is not appropriate when- ever regulations effectiye]y prohibit, rather than simply limit, particular exercise of constitution a] rights; presence or absence of alternatiye accommodations of inmates' rights is properly considered factor in rea- sonab]eness analysis rather than basis for heightened scrutiny. 2. Prisons e=4(14) Separate burden should not haye been placed on state prison officials to proye that no reasonable method existed by which prisoners' religious rights could be accommodated without creating bona fide security problems, based on prisoners' claim that prison regulations inhibited exer. cise of their constitution a] rights and yio]at- ed free exercise of religion clause of the First Amendment. D.S.C.A. Const.Amend. 1. Respondent members of the under 42 V.S.C. policies adopted cia]S prevente( .1umu'ah, a conI Friday afterno( their rights und, (If the First AT policy, Standar( T('spondents' c work outside tl Wfre housed al h<-Jd, while the dum, prohibited side work from ir.gs during the Court conc]udec l"tion had occu) I*als vacated ~ the prison polici if the State sh ft-g'u]ations wer. the penologica] . The n-lIabus cor: of lh~ Court but poner of Decisic 3. Constitutional Law e=84.5(].t) Prisons e=.H].t) State prison officials act€d in reason' able manner in prerluding prisoners who were members of Islamic faith from at- tending religious service held on Friday j i ~ f ~ today. JUN 10 !oo,p I..'_"V June 1, 1988 Mr. Daniel J. Vogt City Administrator 5755 Country Club Road Shorewood, MN 55331 Subject: Shorewood Pumphouse Dear Mr. Vogt: The unsightly condition of the pumphouse created the need for some immediate painting and repairs of the subject pumphouse. Replacement of rotted doors, sections of siding, broken vents and flashings was accomplished and priming and painting of the entire building was completed. The building had deteriorated to an unacceptable condition as can be verified by the Munitech people. Their well diggers had difficulty keeping the rotted doors in tact as they proceeded with the replacement of the pump for the well. I understand the City of Shorewood is responsible to keep the pumphouse in presentable condition. Since my position as Maintenance Chairman is voluntary and my zeal for keep- ing Amesbury property looking well cared for is great, I have overlooked your participation and, in fact, was not aware that the building was Shorewood's responsibility. Amesbury by-laws every five years good condition. those by-laws in require homeowners to paint their homes and generally keep their property in The pumphouse was not in keeping with it's former condition. As Chairman of the Maintenance Committee I respectfully request reimbursement to the Amesbury Homeowners Associ- ation of the repair/painting costs of your buildLng in the amount of $2400. Please feel free to contact me during the day at 726-7716 for any further discussion. Sincerely, , //t~il If...r i/ '?'~' / ."~Marlys Wood Maintenance Chairman cc: J. Schroer, Pres. . MEMO TO: FROM: DATE: SUBJECT: . . CITY OF SHOREWOOD MAYOR Robert Rascop COUNCI L Jan Haugen Kristi Stover Robert Gagne Barb Brancel ADMINISTRATOR Daniel J. Vogt 5755 COUNTRY CLUB ROAD . SHOREWOOD, MINNESOTA 55331 · (612) 474-3236 Mayor and Counci1members Da~gt, Sandy Kennelly June 20, 1988 Election Day Liquor Sales The Minnesota Legislature passed a Bill this past session which allows the sale of liquor on Election Days. The law states that if the sale of liquor is acceptable, the Council does not need to take action. If the sale of liquor is not acceptable, the Council would need to stipulate the conditions of the sale such as hours of operation. From a business standpoint, being open means sales which means income. This item appears on your meeting agenda of June 27, 1988, for your consideration. Please call Sandy or Dan if you have any questions. a1 cc: Glen Froberg A Residential Community on Lake Minnetonka's South Shore 1....3 -j) --3 -. CHECK NO. 053122 (G) 053123 (G) 053124 (G) 053125 (L) 053126 (L) 053127 (L) 053128 (L) 053129 (L) 053130 (L) 053131 (L) 053132 (L) 053133 (L) 053134 (L) 053135 (L) 053136 (L) 053137 (L) 053138 (L) 053139 (L) 053140 (L) 053141 (L) 053142 (G) 053143 (G) 053144 (G) 053145 (G) 053146 (G) 053147 (G) 053148 (G) 053149 (G) 053150 (G) 053151 (G) 053152 (G) 053153 (G) 053154 (G) 053155 (G) 053156 (G) 053157 (G) 053158 (G) 053159 (G) 053160 (G) 053161 (G) . . GENERAL & LIQUOR FUNDS-BILLS PAID SINCE JUNE 10, 1988 TO WHOM PAID Assoc. of Metropolitan Municipalities Northwestern Bell Minnegasco Bellboy Corporation Coca Cola Bottling Co. Day Distributing Co. East Side Beverage Co. Franks Trucking Griggs, Cooper & Company Johnson Bros. Liquor Co. Mark VII Distributors Minnesota Bar Supply Ins. North Star Ice Pepsi Cola Company Ed Phillips & Sons pogreba Distributing Co. Quality Wine & Spirits Co. Southwest Suburban Publishing Thorpe Distributing Co. Weekly News, Inc. MN Department of Health AT & T American National Bank Alternative Staffing, Inc. American Linen Supply Co. Earl F. Andersen & Assoc. Armor Security, Inc. Arts-Way Manufacturing Co. Associated Asphalt, Inc. Bauer Built, Inc. Bob's Personal Coffee Svc. Browning-Ferris Industries Capitol Rubber Stamp Co. Chanhassen Lawn & Sports Chaska Parts Service City of Mound City of Excelsior Commers Soft Water Co. Crepeau Docks Dem-Con Landfill, Inc. PURPOSE Annual Meeting at Nick10ws Utilities Utilities Liquor Purchases Soda Purchases Beer & Misc. Purchases Beer Purchases Liquor & Wine Purchases Liquor & Wine Purchases Liquor & Wine Purchases Beer Purchases Misc. Purchases Misc. Purchases Soda Purchases Liquor & Wine Purchases Beer & Misc. Purchases Liquor & Wine Purchases Advertising Beer Purchases Advertising Water Extension Permit Long Distance Calls Bank Payment 7-1-1973 Temporary Help Laundry-City Hall & Garage Signs (Fasten Seat Belt) Change Locks & Keys-City Hall Parts - Public Works Redi-Mix Asphalt-Streets Tire-Road Grader, Repair Coffee, Filters-City Hall Chemical Toilets-Parks Notary Stamp-Dan Vogt Parts-Public Works Parts-Public Works 3rd Quarter Fire Contract 3rd Quarter Fire Contract Rent-June Rental of Float-Crescent Beach Parks Spring Cleanup-Cleanup Parks - 1 - AMOUNT $ 20.00 137.78 29.83 1,032.82 519.15 4,102.85 9,907.55 441. 60 3,122.16 1,277.47 8,800.45 248.38 247.20 511.45 1,926.14 1,257.60 1,850.36 53.25 5,820.85 103.50 150.00 3.82 5,601. 50 1,183.05 335.48 154.80 323.10 113 . 04 1,328.96 395.69 74.25 249.96 19.50 13.95 49.20 1,012.83 16,086.00 22.50 5.00 42.00 053174 (G&L) Matthias, Roebke & Ebert " CHECK NO. 053162 053163 053164 053165 053166 053167 053168 053169 053170 053171 053172 053175 053176 053177 053178 053179 (G) 053180 (G) 053181 (G) 053182 (G) 053183 053184 053185 053186 053187 053188 053189 053190 053191 053192 053193 (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (G) (L) 053194 (G) 053195 (G) 053196 (G) . . GENERAL & LIQUOR FUNDS-BILLS PAID SINCE JUNE 10, 1988 TO WHOM PAID PURPOSE Ess Brothers & Sons, Inc. Feed-Rite Controls, Inc. Froberg & Penberthy, PA Hance Hardware, Inc. Hennepin County Treasurer Hennepin County-Voter Registration Hennepin County Treasurer League of Minnesota Cities Long Lake Ford Tractor Louisville Landfill, Inc. Lyman Lumber Co. Covers-Sewer Demurrage Charge Legal Fees-April 1988 Weed Spray-Parks Mailing List-Rezoning Postal Verifications Prisoner Expense-April 1988 City's Building Share Chain Saw Oil-Garage Dumping Charge-Manor Park Building Supplies-City Hall 89.48 Cathcart Park l3.l0-Sewer 8.50 Computer Processing in April for Jan 1988 Fls Services for Year End Closing Grease Tubes-Garage Pressure Hose-Public Works Animal Control for May 88 Limestone & Black Dirt- Streets 335.70-Manor Park 253.20 City Hall 142.69 Advertising Utilities Rock-Manor Park 57.98 Streets 65.28 Services June 1988-4,175.00 Autodialer Amesbury Well Mere. 1,875.00 Autodialer Boulder Bridge Well 925.00 Navarre Amoco Demount Tires-City Cleanup Navarre True Value Misc. Parts New World Systems Corp. Modification to Payroll & AP Northern States Power Utilities-City Wide Norwest Bank Bond Payment 1-1-74 Orr-Schelen-Mayeron & Asoc.EngineeringFees Pepsi Cola Company Soda Purchases RMS Road Machinery Blacktop Roller-Public Works Red Wing's Mobil Tire Repair-Public Works Reynolds Welding Supply Parts-Public Works South Lake Mtka. Crime Donation from both stores Prevention Fund South Lake Mtka Public Safety Dept. Standard Spring Company Star and Tribune H.C. Mayer & Sons, Inc. Crad Mel Enterprises Midwest Animal Services Midwest Asphalt Corp. MN Suburban Newspapers Minnegasco Wm. Mueller & Sons, Inc. Munitech, Inc. June 1988 Budget Repair Spring-Public Works Employment Ad-Finance Director - 2 - AMOUNT $ 342.00 15.00 5,153.65 17.96 104.00 15.15 736.75 332.00 37.90 36.00 111. 08 298.00 1,025.00 24.00 87.50 290.75 731.59 132.19 29.08 123.26 6,975.00 35.00 237.37 100.00 1,419.44 9,350.20 12,845.76 57.75 7,825.00 6.50 19.10 50.00 27,874.84 230.40 137.77 CHECK NO. 053197 (G) 053198 (G) 053199 (G) 053200 (G) 053201 (G) 053202 (G) 053203 (G) 053204 (G) 053205 (G) 053206 (G) 053207 (G) 053208 (G) 053209 (G) 053210 (G) 053211 (L) 053212 (G) 053213 (G&L) 053214 (G&L) 053215 (G) 053216 (G) 053217 (G) 053218 (G) 053219 (G) 053220 (L) 053221 (L) 053222 (L) 053223 (L) 053224 (L) 053225 (L) 053226 (L) 053227 (L) 053228 (G&L) 053229 (G) 053230 (G) 053231 (G) . . GENERAL & LIQUOR FUNDS-BILLS PAID SINCE JUNE 10, 1988 TO WHOM PAID Super Cycle, Inc. Tonson Corporation Water Products Co. Widmer, Inc. Weekly News, Inc. Zep Manufacturing Co. Ziegler, Inc. Government Finance Officers Association A & K Construction, Inc. CBI Na-Con, Inc. Widmer, Inc. Zastrow Nasset Cons. Labor Relations Assoc. David Erotas Commissioner of Revenue Public Employees Retire. Minnesota Mutual Life Commercial Life Insurance U.S. Postmaster Northwestern Bell Excelsior Chamber of Comm. Patty Helgesen Jean Sorensen Bellboy Corporation Griggs, Cooper & Co. Johnson Bros. Liquor Co. Minnesota Bar Supply, Inc. Ed Phillips & Sons. Co. Quality Wine & Spirits Co. Royal Crown Beverage Co. Waste Management-Savage Physicians Health Plan Of Minnesota Equity Title Services Midwest Animal Services Sandra Kennelly PURPOSE Services for May 88 I Load Clean Up Adaptor-Public Works Concrete Rings-Sewer Advertising Cleaning Compound-Garage Air Filter-Public Works Membership-Finance Construction Pmt. #5 SE Area Construction Pmt. #3 SE Area Construction Pmt. #3 Freeman Park Construction Pmt. #6 City Hall Compo Worth-Services Rendered Building Permit Fee Refund May 1988 Sales Tax Additional Life Insurance Accident & Sickness Insurance Life Insurance for Employees Postage Utilities July 4th Fireworks Contribution Mileage Mileage Liquor Purchases Liquor & Wine Purchases Wine Purchases Misc. Purchases Liquor & Wine Purchases Liquor & Wine Purchases Pop Purchases Waste Removal July Employee Health Ins. Refund for Special Assmt. Search Additional Animal Control for May 88 Mileage Total Liquor Total General TOTAL - 3 - AMOUNT $ 602.00 500.00 94.00 54.00 236.64 13.90 26.96 70.00 10,981.61 159,373.45 17.,558.50 815.10 337.44 94.12 8,464.14 18.00 104.40 23.04 750.00 114.53 1,000.00 9.46 17.71 3,675.71 5,209.57 756.64 726.25 1,199.37 952.57 69.80 72.00 2,542.37 15.00 330.35 26.18 63,173.56 299,043.26 362,216.82 . . GENERAL & LIQUOR FUNDS-BILLS PAID SINCE JUNE 10, 1988 CHECK NO. TO WHOM PAID PURPOSE AMOUNT PAYROLL 202184 Void 202185 (G) Daniel Vogt 80 Reg Brs $ 1,000.54 202186 (G) Sandra Kennelly 80 Reg Hrs 744.59 202187 (G) Susan Niccum 80 Reg Hrs 483.30 202188 (G) Anne Latter 80 Reg Hrs 366.94 202189 (G) Jean Sorensen 80 Reg Brs 536.68 202190 (G) Bradley Nielsen 80 Reg Hrs 851.52 202191 (G) Patricia Helgesen 80 Reg Brs 629.31 202192 (G) Charles Davis 80 Reg Hrs 413.03 202193 (G) Dennis Johnson 80 Reg Hrs 636.94 202194 (G) Daniel Randall 80 Reg Hrs 650.59 202195 (G) Howard Stark 82 Reg Hrs 2 On Call 566.88 202196 (G) Ralph Wehle 82 Reg Hrs 4 O.T. 575.50 202197 (G) Donald Zdrazil 80 Reg Hrs 853.33 202198 (G) Joseph Lugowski 80 Reg Hrs 623.29 202199 (L) Russell Marron 80 Reg Hrs 499.17 202200 (L) Christophe Schmid 36 Reg Hrs 135.15 202201 (L) Donald Tharalson 14.50 Reg Hrs 74.68 202202 (L) Jeffrey Dewitt 40 Reg Brs 159.99 202203 (L) John Thompson 16 Reg Hrs 74.00 202204 (L) Michael Koebensky 44 Reg Hrs 180.07 202205 (L) John Josephson 22 Reg Hrs 99.98 202206 (L) William Josephson 80 Reg Hrs 567.22 202207 (L) Susan Latterner 36 Reg Hrs 146.70 202208 (L) Dean Young 80 Reg Hrs 501. 27 202209 (L) Scott Bennyhoff 40.50 Reg Brs 183.69 202210 (L) Scott Bartlett 31 Reg Hrs 139.28 202211 (L) David Peterson 26.50 Reg Hrs 103.14 202214 (L) Daniel Haasken 13 Reg Hrs 57.65 202213 Void Total Liquor 2,921.99 Total General 8,932.44 TOTAL 11,854.43 Total Liquor 66,095.55 Total General 307,975.70 TOTAL 374,071.25 - 4 - BILLS FOR COUNCIL APPROVAL PAYEE A T & T Alternative Staffing, Inc. Associated Asphalt, Inc. Evelyn Beck Commissioner of Transportation D. R. Copier Service, Inc. Dial Tone Service EOS Corporation Rolf E. A. Erickson Feed-Rite Controls, Inc. Jim Hatch Sales Co. Hydraulic Component Services, Inc. IBM Corporation KAR Products Loren Kohnen Long Lake Ford Tractor, Inc. H. C. Mayer & Sons, Inc. Metropolitan Waste Control Comm. Metropolitan Waste Control Comm. Minnegasco Minnesota Mayors Association MN Suburban Newspapers, Inc. MN Suburban Newspapers Minnetonka Public Schools Midwest Asphalt Corporation Minnesota Clerks & Finance Officers Assn. New World Systems Northern States Power Northern States Power Northwestern Bell Orr-Schelen-Mayeron & Assoc., Inc. Pepsi Cola Company South Lake Minnetonka Public Safety Stark Electronics Supply, Inc. Star & Tribune Tonka Ford Tonka Printing Co. Waste Management-Savage Water Products Company South Lake Minnetonka Public Safety JUNE 27, 1988 PURPOSE AMOUNT 3 Month Lease Equipment $ Temporary Help-General Hot Mix-Streets Mileage Re-Lamp 7 & 41 Quarterly Contract 30.00 Toner 158.88 Phone for Crescent Beach (Tonka Bay to pay 1/2) City Hall Addition June 1988 Assessing Fee & Postage Fluoride-Waterford Well Rainsuits, Gloves-Public Works Parts-New Grader GLC Course-Jean Sorensen Parts-Public Works May 1988 Inspections & Plan Reviews Parts-Public Works Gas-Diesel Fuel-Garage SAC charges Sewer Service Charges Utilities-City Hall & Badger Membership Dues for 1988 Advertising Advertising-Finance Director Copier Paper Limestone-City Hall Membership Fee-Sandra Kennelly 15.00 Susan Niccum 15.00 Service Calls Utilities-Streets Utilities-City Wide Utilities Temporary Water Connection (S.E. Area Well) Pop Machine Rent-City Hall July 1988 Budget Fuses-Boulder Bridge Well Advertising-Finance Director Power Steering Hose-Public Works Copy Paper & Printing Service June 1988-City Hall Water Meters, Horns, Readouts TOTAL $ 5-6-88 Reserve Dinner TOTAL - 1 - $ 22.73 712.80 1,103.90 23.10 44.52 188.88 40.45 681. 94 1,977.25 1,348.37 404.24 17.30 130.00 205.43 7,283.57 38.61 1,133.11 11 ,434.50 24,659.55 87.13 10.00 19.38 91.00 66.08 32.79 30.00 20.00 2 ,401. 91 347.58 541.07 756.00 10.00 27,874.84 21. 65' 137.77 20.25 68.20 81.00 1 , 041. 01 85,107.91 225.00 85,332.91