American Savings and Loan Association, a California Corporation v. County of Marin, a Public Entity

653 F.2d 364 AMERICAN SAVINGS AND LOAN ASSOCIATION, a California Corporation, Plaintiff-Appellant, v. COUNTY OF MARIN, a Public Entity et al., Defendants-Appellees. No. 77-3703. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 18, 1980. Reargued and Resubmitted Oct. 16, 1980. Decided April 6, 1981. Edmund L. Regalia, Miller, Starr & Regalia, Oakland, Cal., for plaintiff-appellant. Douglas J. Maloney, San Rafael, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before MERRILL, SKOPIL and ALARCON, Circuit Judges. SKOPIL, Circuit Judge: 1 Rehearing has been granted. The opinion filed on June 13, 1980 is withdrawn and is replaced by this opinion. 2 Appellant, American Savings & Loan, appeals from the district court's grant of summary judgment in favor of Marin County ("the County"). The broad issue presented is whether a county zoning ordinance effects an unconstitutional "taking" of appellant's land, a spit extending into San Francisco Bay. The spit is zoned to require very low housing density. Appellant's contiguous land is zoned to allow a substantially higher density. In granting…

concurring and

dissenting:

I agree with the majority that summary judgment was inappropriate and that the case must be remanded for trial on the question of taking — the question whether, as stated in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 , 98 S.Ct. 2646, 2659 , 57 L.Ed.2d 631 (1978), “justice and fairness require that economic injuries caused by public action be compensated by the government.”

As far as the single-parcel/two-parcel question is concerned, it cannot be answered without examining the reason for the inquiry. As I view it, the rule is designed as an aid in determining what, in the particular case, is just and fair to the landowner. Here, if it is just and fair under the circumstances that the Point’s economic values be taken into consideration in examining the economic effect of the zoning on the Spit, then it should follow that the Point and the Spit be treated as a single parcel. On the other hand, if it is just and fair under all of the circumstances to consider the Spit as an independent land area, then the two-parcel treatment should result.

I do not believe that any handy rule of thumb can be devised to determine what is fair…

Rehearing has been granted. The opinion filed on June 13, 1980 is withdrawn and is replaced by this opinion.

Appellant, American Savings & Loan, appeals from the district court’s grant of summary judgment in favor of Marin County (“the County”). The broad issue presented is whether a county zoning ordinance effects an unconstitutional “taking” of appellant’s land, a spit extending into San Francisco Bay. The spit is zoned to require very *367 low housing density. Appellant’s contiguous land is zoned to allow a substantially higher density. In granting summary judgment, the trial court held that for “taking” purposes all of the plaintiff’s contiguous land was to be considered as a single parcel. Because the zoning designations merely lowered the value of the parcel, there was no taking. We reverse and remand for further proceedings.

FACTS

Appellant owns Strawberry Point (“the Point”), about 20 acres, and Strawberry Spit (“the Spit”), about 48 acres. They are contiguous. The Spit was the result of a landfill operation begun in 1953 by the appellant’s predecessor in interest, Neider. In 1967 Berkeley Savings & Loan, appellant’s predecessor in interest, acquired the Spit and the…