by Gary T. Ragghianti
In the late 70′s, I was the Assistant City Attorney in Tiburon. The City became involved in a dispute with a landowner over the constitutionality of a zoning ordinance the City had adopted, under which the property owner was entitled to a density range of between one and five units on their spectacular five-acre ridge top parcel. Without filing an application to develop the property the owners brought suit against City, alleging it had “taken” their property pursuant to a facially unconstitutional zoning ordinance, and had failed to pay them just compensation, as mandated under the Federal and California constitutions.
I worked on this case with my then-partner Robert I. Conn, who was the City Attorney, through the Marin Superior Court and Court of Appeal. The California Supreme Court granted a hearing in the case. In the course of the case’s journey through the state court system, we advanced an argument that was both new and perceived by many to be heretical, as well as revolutionary.
Specifically, we asserted that the remedy for overregulation of real property by a public agency should be invalidation of the offending regulation rather than payment of money damages. When Bob Conn first raised this argument with me, I recall my initial disinclination to accept it. Asked by Bob why money damages should be the sole remedy for a regulatory taking, I responded that the Fifth Amendment to the Federal Constitution mandated it.