Tahoe Regional Planning Agency v. King (233 Cal. App. 3d 1365, 1991)

Opinion

DAVIS, J.

I. Introduction

The central issues posed by this appeal are whether plaintiff Tahoe Regional Planning Agency (TRPA) may compel the removal of defendants’ off-premise billboard signs pursuant to its sign ordinance which allows a five-year preremoval amortization period to recoup costs or whether it is (1) statutorily compelled to pay compensation for their removal under the federal Highway Beautification Act (HBA) (23 U.S.C. § 131), or (2) constitutionally compelled to pay just compensation for a taking of defendants’ property under the just compensation clause of the Fifth Amendment of the United States Constitution.

Defendants are billboard owners and lessees and owners of the real property on which the three billboards which do not comply with TRPA’s sign ordinance are located. TRPA filed suit for declaratory and injunctive relief, alleging that the billboards are prohibited off-premise signs which are fully amortized and in violation of its sign ordinance. This case comes to us on TRPA’s appeal from a judgment following the granting of defendants’ motion for summary judgment, denying TRPA’s motion for summary judgment and declaring a portion of its sign ordinance invalid.

TRPA challenges the trial court’s determination that the HBA limits its authority to regulate outdoor advertising in the Lake Tahoe Region, (Region) and that its ordinance effectuates a “taking” without compensation of off-premise outdoor advertising billboards in violation of the Fifth Amendment. Defendants also urge that TRPA’s ordinance violates the free speech clause of the First Amendment. We reverse. We hold that the HBA does not limit TRPA’s authority to compel the removal of nonconforming signs within the Region pursuant to its ordinance and that the ordinance on its face does not effectuate a “taking.” Accordingly, we reverse the judgment for defendants and the declaration that section 5.00 of TRPA’s ordinance is invalid and unenforceable as applied to their existing billboards. Because there are triable issues of material fact as to whether the ordinance as applied effectuates a taking of defendants’ property, summary judgment is inappropriate and we remand for trial. Finally, we hold that the First Amendment challenge to the ordinance may be averted by limiting its reach to off-premise commercial signs, in accordance with TRPA’s original intent and its current practice.

A. Procedural Background

On August 16, 1983, TRPA filed a complaint for declaratory and injunctive relief and for civil penalties against defendants for violation of its Ordinance No. 24, “An Ordinance Prohibiting Off-Premise Signs Within The Tahoe Region.” Defendants generally denied the allegations of the complaint and raised affirmative defenses, including challenges to the validity of the ordinance under the federal HBA and the First, Fifth, and Fourteenth Amendments to the United States Constitution.

On May 18, 1987, the parties filed a joint stipulation of facts, “for the purposes of disposition of this action pursuant to cross-motions for summary judgment and any appeals therefrom . . . .” On May 29, 1987, both plaintiff and defendants filed their motions for summary judgment.

On August 26, 1987, the parties stipulated that the summary judgment motions be referred to Melvin Beverly as referee for a hearing and to report to the court his findings of fact and recommended order. On September 14, 1987, the referee filed his report on cross-motions for summary judgment recommending that TRPA’s motion be denied, that defendants’ motion be granted, that judgment be entered in their favor and that a judgment be entered that section 5.00 of TRPA’s sign ordinance is invalid and unenforceable as to defendants’ existing billboards.

On July 28, 1988, the trial court affirmed the report of the referee in its entirety. The court ruled that the provision of Section 5.00 of TRPA’s ordinance which requires removal of nonconforming signs is invalid as (1) not conforming to the payment of compensation provision of the Highway Act for billboards removed from sites within 660 feet of a federal highway, and (2) as purporting to authorize the taking of property without payment of just compensation in violation of the Fifth Amendment to the United States Constitution. The court suggested alternatives to TRPA of (1) amending the ordinance to provide for amortization based on the actual value of defendants’ signs and their useful life (not the original cost); (2) withdrawing the invalid regulation in its entirety; or (3) seeking for itself the power of eminent domain. The court did not rule on defendants’ First Amendment claim of unconstitutionality of the ordinance. Judgment was entered on September 12, 1988, and TRPA timely appealed.

B. Stipulated Facts

According to the stipulated facts, TRPA is an agency created by the Tahoe Regional Planning Compact (hereafter, the Compact) (Pub.L. No. 91-148 (Dec. 18, 1969) 83 Stat. 360; Gov. Code, §§ 66800 and 66801; Nev. Rev. Stat. 277.190 and 277.200.), with jurisdiction over the Region, as defined in the Compact, including that portion of the County of El Dorado, State of California, within the Region. Pursuant to the Compact, TRPA has adopted a regional plan and implementing ordinances for orderly growth and development within the Region. On July 24,1975, TRPA adopted Ordinance No. 24, “An Ordinance Prohibiting Off-Premise Signs Within the Tahoe Region,” effective September 22, 1975.

Defendants’ outdoor advertising signs do not advertise goods or services sold or made available on the premises on which the signs are located, and do not advertise products or services sold or made available by the owners of the signs. The signs are made available to “all-comers,” in a fashion similar to newspaper or broadcasting advertising. The copy of defendants’ signs changes periodically. During defendants’ use or ownership, the signs have “advertised a business or similar economic means for the production of income,” i.e., have been used for commercial rather than noncommercial messages.

Many of the commercial areas of South Lake Tahoe, California and Stateline, Nevada consist of hotels, motels, casinos, restaurants and service-businesses located on the commercial zoning along, or in close proximity to, United States Highway federal and primary Route 50. All of the businesses along that route have on-premise signs advertising the occupant of, and the nature of each business conducted upon their commercial premises.

Defendants, Bruce King, doing business as Bruce Outdoor Advertising, and National Advertising Company, Inc., are engaged in the outdoor advertising business in the Region. Bruce King owns or controls no outdoor advertising signs outside the Region, while National Advertising owns or controls 39,000 outdoor advertising signs nationally. The remaining defendants own the real property and are the lessors of the property on which the outdoor advertising signs are located. Edward Stearns owns the sign on his property, and leases both the land and the sign to Bruce King.

The outdoor advertising business consists of placing, maintaining and selling outdoor advertising space to “all-comers” for whatever lawful message they desire to communicate. The three outdoor advertising signs at issue in this lawsuit are located within and visible from 660 feet of a federal interstate highway, United States Highway 50.

Sign A was erected in June 1961 and is owned by Bruce King. It is located on land leased from and owned by Mr. and Mrs. Burke in El Dorado County. The lease was renewed in July 1986 for an additional six and one-half years.

Sign B was erected in February 1974 and is owned by Edward Stearns. It is located on his property in El Dorado County. Bruce King leases the sign from him. This lease was renewed in January 1987 for an additional six and one-half years.

Sign C was erected in July 1964 and is owned by National Advertising Company, Inc. It is located in El Dorado County on land leased from David Salzberg. The lease was renewed in April 1983 for an additional 23 years.

Annual income to the sign owner in 1987 was $23,400 for sign A; $24,840 for sign B; and $30,000 for sign C. Annual rent to the landowner in 1987 was $1,148 for sign A; $3,768 for sign B and $5,000 for sign C.

Each of the advertisers on the signs, hotel-casinos located at Stateline, Nevada, has outdoor on-premise advertising signs at its premises advertising its business.

Each of the outdoor advertising signs was legally erected in full compliance with all then-applicable laws and is in full compliance with such laws except for Ordinance No. 24. Each sign, which was constructed of steel or other durable material, has a remaining useful income-producing life in excess of 25 years, if maintained and repaired.

The five-year amortization provision of section 5.10 of TRPA Ordinance No. 24 relates to the original cost of constructing the signs, unless the owner of the sign can produce sufficient evidence to show the valuation is incorrect or is set aside pursuant to the ordinance.

TRPA acknowledges that defendants would produce evidence that the fair market value of sign A is $78,000; of sign B is $82,800; and of sign C is $100,000.

The advertising or lease income to the respective defendants from each sign has exceeded the original cost (labor and materials) of constructing the sign and its supporting members. The amortization period of the ordinance has elapsed for each of the three signs.

C. The Tahoe Regional Planning Compact

The Compact is an interstate agreement executed between California and Nevada and approved by Congress in 1969. It declares that the establishment of TRPA is imperative to enhance the efficiency and governmental effectiveness of the Region. The powers given to TRPA include the establishment of environmental threshold carrying capacities and the adoption and enforcement of “a regional plan and implementing ordinances which will achieve and maintain such capacities while providing opportunities for orderly growth and development consistent with such capacities.” (§ 66801, art. I, subd. (b).)

TRPA is created as a separate legal entity whose governing body is comprised of a seven-member California delegation and a seven-member Nevada delegation. (§ 66801, art. Ill, subd. (a)(1) and (2).) TRPA is required to appoint an advisory planning commission, which prepares, plans and holds public hearings and reviews written recommendations and testimony presented at such hearings. (§ 66801, art. Ill, subd. (h).) The commission recommends plans or amendments to TRPA for adoption by ordinance. (§ 66801, art. V, subd. (a).) TRPA is mandated to develop the environmental threshold carrying capacities for the Region and is authorized to request the assistance of various federal agencies in developing such capacities. (§ 66801, art. V, subd. (b).) The regional plan and all of its elements, as implemented through agency ordinances, rules and regulations, should be continuously reviewed to ensure that it achieves and maintains the carrying capacities. (§ 66801, art. V, subd. (c).) The regional plan itself must include a land plan, a transportation plan, a conservation plan, and a public services and facilities plan. (§ 66801, art. V, subd. (c).) The conservation plan is “for the preservation, development, utilization, and management of the scenic and other natural resources within the basin, including but not limited to, . . . scenic corridors along transportation routes, . . (§ 66801, art. V, subd. (c)(3).)

The Compact grants TRPA broad powers “to adopt all necessary ordinances, rules and regulations to effectuate the adopted regional plan.” The regulations of TRPA “shall contain standards including but not limited to . . . outdoor advertising; . . .” (§ 66801, art. VI, subd. (a).)

D. The Sign Ordinance

TRPA’s sign ordinance was enacted to maintain the natural scenic quality of the Region and to effectuate the regional plan. (TRPA Ord. No. 24, § 1.00.) It is applicable to “all signs” which are defined as “[a]ny object, device or part thereof situated outdoors or predominantly visible from outside the building in which it is situated which is used to advertise, identify, display, or attract attention to an object, person, institution, organization, business, product, service, event, or location by any means, including words, letters, numerals, figures, designs, symbols, fixtures, colors, motion, illumination, or projected images. Signs do not include the following: (1) flags of'states, nations and civil organizations; (2) national, state, religious, fraternal, professional, and civic symbols or crests; and (3) scoreboards located on athletic fields.” (TRPA Ord. No. 24, § 3.00.) Signs are further divided between “off-premise” and “on-premise” signs. On-premise signs are those advertising or otherwise relating to “any business product or activity being conducted or produced on the lot or parcel on which the sign is located” or within and located on property within an “integrated commercial complex.” (Ibid.) “Off-premise” signs are those advertising or otherwise relating to “any business, product or activity not being conducted or produced” on the property where the sign is located except signs advertising a business or activity being conducted within and located on an integrated commercial complex, signs erected or authorized by the state or local government for the purpose of public safety or information, e.g., traffic signs, hospital directional signs, or signs indicating that the property on which the sign is located is for rent, lease or sale. (Ibid.)

The basic prohibition of the ordinance is directed to off-premise signs, all of which are prohibited within the Region except for temporary political signs. (TRPA Ord. No. 24, § 4.10.) Political signs are defined as those “advertising a candidate for public office, proposition, or other issue to be voted on by the electorate.” (TRPA Ord. No. 24, § 3.00.) These signs are allowed only in the 21-day period prior to the election and must be removed 7 days after the election unless they relate to a primary election occurring within 60 days of a general election. In this limited situation, the successful primary candidate may keep the sign in place until seven days after the general election. (TRPA Ord. No. 24, § 9.00.)

The ordinance also prohibits attaching signs to trees or natural vegetation and limits the height of permitted signs. (TRPA Ord. No. 24, §§ 4.20, 4.30.)

A maximum five-year amortization period is provided for signs which are or which become nonconforming. (TRPA Ord. No. 24, § 5.10.) The value of the signs is to be based upon their original cost. (TRPA Ord. No. 24, § 5.60.) All signs in violation of the ordinance are declared public nuisances. (TRPA Ord. No. 24, § 7.20.) Limited variances are allowed only when TRPA expressly finds that the sign is necessary to provide directions to a business, location or commodity advertised; the business location or commodity will be deprived of privileges enjoyed by similarly situated businesses, locations or commodities without the sign; the variance will not be contrary to the public interest; and it will not nullify the objectives of the ordinance. (TRPA Ord. No. 24, § 8.00.)

II

The Federal Highway Beautification Act Does Not Limit TRPA’s Power to Compel the Removal of Signs Pursuant to Its Ordinance

Finding that outdoor advertising signs in areas adjacent to the Federal Interstate System and the primary system “should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty,” the federal HBA (23 U.S.C. § 131) requires that any state receiving federal aid highway funds take “effective control of the erection and maintenance . . . of outdoor advertising signs, displays and devices” which are within 660 feet of the edge of the right-of-way and visible from the system. (23 U.S.C. § 131(a), (b).) A state which fails to make provisions for “effective control” shall have its federal aid highway funds reduced by amounts equal to 10 percent of its total allotment until it provides for this control. (23 U.S.C. § 131(b).) The key provisions of the HBA provide for the removal of any nonconforming sign, display or device within a five-year period after it becomes nonconforming. (23 U.S.C. § 131(c).) “Just compensation shall be paid upon the removal of any outdoor advertising sign, display, or device lawfully erected under State law and not permitted under [subdivision] (c) of this section whether or not removed pursuant to or because of this section. . . .” (23 U.S.C. § 131(g).) “Subject to compliance with [subdivision] (g) . . . for the payment of just compensation, nothing in this section shall prohibit a State from establishing standards imposing stricter limitations with respect to signs, displays, and devices on the Federal-aid highway systems than those established under this section.” (23 U.S.C. § 131(k).) The vehicle for ensuring “effective control” under the HBA in California is the Outdoor Advertising Act, Business and Professions Code, section 5200 et seq. Just compensation requirements are contained in Business and Professions Code section 5412, which provides that no advertising displays shall be removed “without payment of compensation, as defined in the Eminent Domain Law. . . .”

Despite their similar objectives, the HBA and the Compact are in clear conflict over the method permissible to achieve their mutually held goals of “preservation of natural beauty” (23 U.S.C. § 131(a)), “scenic beauty” and “environmental and recreational values.” (§ 66801, art. I, subd. (a)(9) and (10).) Whereas the HBA provides strong incentives for states which do not wish to forfeit 10 percent of their highway funds to pay compensation as a prerequisite to removing signs, TRPA is specifically authorized to utilize its police powers to implement the regional plan through agency ordinances, including standards for “outdoor advertising.” (§ 66801, art. VI, subd. (a).) Ordinance No. 24 effectuates this plan by providing for the amortization of nonconforming signs over a five-year period. It does not provide for the payment of compensation.

The trial court held that, because both the Compact and the HBA provide the power to regulate, including to prohibit, outdoor advertising, their provisions were “not so repugnant... to compel a conclusion that the latter is repealed by the former.” “However, the Highway Act goes further and requires, in the case of the removal of signs within 660 feet of a federal highway, payment of just compensation for removal of the sign.” The court concluded that “[t]hus, the Highway Act imposes a limitation upon the power of TRPA to compel the removal of signs—compensation must be paid. Since TRPA does not have the power of eminent domain, it does not have the power to order billboards removed.”

TRPA concedes that the HBA, and, by implication, the Outdoor Advertising Act, would ordinarily circumscribe a municipality’s ability to remove nonconforming billboards without payment of compensation. It argues that the court’s ruling strips it of its power to fulfill its mandate. The Compact is a congressional enactment passed after the HBA and is more specific than the HBA due to its focus on an environmentally unique geographical area. For these reasons, TRPA contends that it “was intended to protect its scenic qualities through constitutional land-use regulations, not payment of just compensation.” This, it asserts, is the only interpretation which allows both the Compact and the HBA to function effectively. Defendants contend that the two federal enactments do not conflict but can be harmonized—by allowing TRPA the power to regulate outdoor advertising within the parameters of the HBA, including its minimum requirement that compensation be paid. In the alternative, if the Compact is inconsistent with the HBA, the HBA is the latter enactment and must prevail.

A. Legal Status of Compact and TRPA Ordinance

We begin with a discussion of the legal status of the Compact and of the regulations and ordinances passed by TRPA pursuant to its powers under the Compact. A common assumption underlies the positions of the parties and the trial court—that the sign ordinance, enacted pursuant to tide powers granted under the Compact, is a federal law which is to be tested against another federal law, the HBA. The legal predicate for that assumption, however, is not clear. Whether TRPA’s sign ordinance is the equivalent of a federal law or akin to a state regulation dictates our analysis. If the ordinance is viewed as akin to a state regulation, a preemption analysis is mandated. If, on the other hand, it is the equivalent of a federal law, the analytical approach suggested by the parties is appropriate. We conclude that, although TRPA’s power to enact the ordinance is derived from the federally approved Compact, the ordinance itself is more nearly akin to a state regulation and the appropriate question is whether the ordinance is preempted by the HBA.

The compact clause of the United States Constitution, article I, section 10, clause 3, provides that “No State shall, without the consent of Congress . . . enter into any agreement or compact with another state . . . .” “[C]ongressional consent transforms an interstate compact within [the Compact] Clause into a law of the United States . . . .” (Cuyler v. Adams (1981) 449 U.S. 433, 438 [66 L.Ed.2d 641, 648, 101 S.Ct. 703, 706].) It is undeniable that the Compact itself was transformed into a law of the United States when it was approved by Congress pursuant to article I, section 10, clause 3 of the United States Constitution. (See League to Save Lake Tahoe v. Tahoe Reg. Plan Agcy. (9th Cir. 1974) 507 F.2d 517, cert. den. (1975) 420 U.S. 974 [43 L.Ed.2d 654, 95 S.Ct. 1398]; California Tahoe Regional Planning Agcy. v. Jennings (9th Cir. 1979) 594 F.2d 181, 190, cert, den. (1979) 444 U.S. 864 [62 L.E.2d 86, 100 S.Ct. 133]; Jacobson v. Tahoe Regional Planning Agcy. (TRPA) (9th Cir. 1977) 566 F.2d 1353, 1358, affd. in part and revd. in part (1979) 440 U.S. 391 [59 L.Ed.2d 401, 99 S.Ct. 1171].)

The congressionally approved, bistate compact has been described as a “centaur of legislation.” (Jacobson v. TRPA, supra, 566 F.2d at p. 1359, fn. 8.) That this characterization is apt can be seen from its blending of seemingly contradictory attributes. Although the Compact is a federal law, the actions of TRPA and its state officials have been held to be “under color of state law” within the meaning of 42 United States Code section 1983. (Lake Country Estates v. Tahoe Planning Agcy. (1979) 440 U.S. 391, 399 [59 L.Ed.2d 401, 410, 99 S.Ct. 1171].) Congressional consent did not transform TRPA into a “federal agency” (People, etc. v. City of South Lake Tahoe (E.D.Cal. 1978) 466 F.Supp. 527) nor did Congress make the entire panoply of federal administrative and substantive standards applicable to the Compact. (California Tahoe Regional Planning Agcy. v. Jennings, supra, 594 F.2d at p. 358, fn. 7.)

Regulations and ordinances enacted by TRPA pursuant to its powers under the Compact do not automatically acquire the status of federal law. The criteria to be used in determining whether a TRPA ordinance constitutes federal law has been discussed in the context of determining federal question jurisdiction. The “threshold inquiry [is] whether the Ordinance is a Taw of the United States’ within the meaning of 28 U.S.C. § 1331(a).” (League to Save Lake Tahoe v. B.J.K. Corp. (1976) 547 F.2d 1072, p. 1074, fn. 3.) In B.J.K. Corp., the court emphasized that “[questions arising under the TRPA Land Use Ordinance enacted pursuant to the Compact do not automatically give rise to Section 1331(a) jurisdiction, because the Compact is not an ordinary federal statute and the Ordinance is not directly analogous to the Code of Federal Regulations. . . . [¶] By permitting a state-initiated response to regional matters, Congress has done something quite different from incorporating a state law into a federal statute or from enacting a federal regulatory statute.” (Id. at p. 1073.)

Because federal question jurisdiction is available only when the claim “arises under” federal law, the status of the ordinance was resolved by determining whether it was “basic” and “necessary” to the Compact rather than simply “collateral” or “merely possible.” (547 F.2d at p. 1074.) Pragmatic considerations relevant in deciding when construction of a TRPA Ordinance itself presents a federal question are whether interstate conflicts in the interpretation and application of the ordinance may arise that may substantially affect the effective functioning of the Compact and whether, absent a federal trial forum, existing judicial mechanisms supply a practical means for resolving such conflicts. Due to the historic dispute between California and Nevada over the extent of desired development, the court found that conflicting interpretations of the ordinance would be “inevitable” if exclusive jurisdiction to interpret and apply the ordinance rested with the state courts of California and Nevada. Accordingly, the court held that a suit arising under TRPA’s Land Use Ordinance (Land Use Ord., § 9.11) raised a federal question which permitted plaintiff to invoke federal question jurisdiction. In a cautionary note, the court indicated that not every interpretation or application of an ordinance would generate conflict that might impair the effective administration of the regional plan. A different result may be reached if the interpretation and application of TRPA ordinances “have little or no impact on the regional plan.” (547 F.2d at p. 1075.)

Our analysis of the Compact leads us to conclude that, in an appropriate case, the sign ordinance may be considered as “arising under the . . . laws of the United States” within the meaning of 28 United States Code section 1331 for the purpose of establishing federal question jurisdiction. The ordinance regulates an area which is without question both basic and necessary to achieving the purposes of the Compact. This conclusion, however, does not mean that TRPA’s ordinance is tantamount to a “federal law” for all purposes.

“Since the first version of [section] 1331 was enacted, ... the statutory phrase ‘arising under the Constitution, laws, or treaties of the United States’ has resisted all attempts to frame a single, precise definition for determining which cases fall within, and which cases fall outside, the original jurisdiction of the district courts .... [T]he phrase ‘arising under’ masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.” (Franchise Tax Bd. v. Laborers Vacation Trust (1983) 463 U.S. 1, 8 [77 L.Ed.2d 420, 430, 103 S.Ct. 2841].) The application of federal question jurisdiction under this standard is much broader than a simple determination of whether the jurisdictional subject is in fact a “federal law.” For example, even though state law creates plaintiff’s cause of action, the case “might still ‘arise under’ the laws of the United States if a well-pleaded complaint[] established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.” (463 U.S. at p. 13 [77 L.Ed.2d at p. 433]; Ivy Broadcasting Co. v. American Tel. & Tel. Co. (2d Cir. 1968) 391 F.2d 486, 492.) Whether a case “arises under” a federal law is entirely separate and distinct from whether the complaint states a claim upon which relief can be granted and whether there is any merit to the claim. (Div. 1287, etc. v. Kansas City Area Transp. Auth. (8th Cir. 1978) 582 F.2d 444, 449.)

Here, the concerns which fueled the B.J.K. Corp. court’s conclusion that the TRPA ordinance before it raised a federal question are absent. The issue is not the need for an unbiased forum or consistent interpretation and application of the Compact through its ordinance. Rather, the issue is determining the relationship of the ordinance to the HBA, a federal statute. This determination does not in itself raise a federal question under 28 United States Code section 1331. The existence of a federal preemption defense, such as the HBA defense presented here, does not automatically confer federal question jurisdiction, either directly or by removal. This established rule remains unchanged even where the parties admit that the defense is the only question truly at issue. (Franchise Tax Bd. v. Laborers Vacation Trust, supra, 463 U.S. at p. 14 [77 L.Ed.2d at pp. 433-434].) Under these circumstances, the ordinance is more aptly viewed as a child of “an agency of the contracting states, . . . operating] under the aegis of federal law.” (Jacobson v. TRPA, supra, 566 F.2d at p. 1358.) The appropriate question is whether the ordinance is preempted by the just compensation provision of the HBA. We hold that it is not. We further conclude that the compensation provisions of the HBA do not create enforceable rights by billboard owners seeking compensation.

B. Preemption

The supremacy clause of article VI of the Constitution provides Congress with the power to preempt state law. “The circumstances in which federal law pre-empts state regulation are familiar. [Citations.] A pre-emption question requires an examination of congressional intent. [Citations.] Of course, Congress explicitly may define the extent to which its enactments preempt state law. [Citations.] In the absence of explicit statutory language, however, Congress implicitly may indicate an intent to occupy a given field to the exclusion of state law. Such a purpose properly may be inferred where the pervasiveness of the federal regulation precludes supplementation by the States, where the federal interest in the field is sufficiently dominant, or where ‘the object sought to be obtained by the federal law and the character of obligations imposed by it. . . reveal the same purpose.’ (Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, [91 L.Ed. 1447, 67 S.Ct. 1146] (1947).) Finally, even where Congress has not entirely displaced State regulation in a particular field, state law is pre-empted when it actually conflicts with federal law. Such a conflict will be found ‘ “when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Pau, 373 U.S. 132, 142-143 [10 L.Ed.2d 248, 83 S.Ct. 1210] (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davidowitz, 312 U.S. 52, 67 (1941) [85 L.Ed. 581, 61 S.Ct. 399].” ’ ” (Schneidewind v. ANR Pipeline Co. (1988) 485 U.S. 293, 299-300 [99 L.Ed.2d 316, 325, 108 S.Ct. 1145], quoting California Coastal Comm’n v. Granite Rock Co. (1987) 480 U.S. 572, 581, [94 L.Ed.2d 577, 591-592, 107 S.Ct. 1419].)

The provisions of the HBA, including its just compensation clause, are not mandatory and have been held not to preempt conflicting state statutes. In Markham Advertising Company v. State [Washington] (1968) 73 Wn.2d 405 [439 P.2d 248], dismissed for want of a substantial federal question (1969) 393 U.S. 316 [21 L.Ed.2d 512, 89 S.Ct. 553], rehearing denied (1969) 393 U.S. 1112 [21 L.Ed.2d 813, 89 S.Ct. 854], advertisers claimed that the state’s outdoor advertising statutes, which declared nonconforming signs a nuisance and did not provide for compensation, were preempted by the HBA under the supremacy clause. The Washington Supreme Court held that the HBA did not preempt the field, and that the states were free to regulate outdoor advertising within their borders. Reviewing the statute as a whole for an indication of congressional intent, the court stated that “[o]ur examination of [section] 131, supra, leads us to conclude that its essential operation is to condition payment of 10 percent of a state’s share of federal-aid highway funds upon the state’s exercise of its powers to regulate outdoor advertising in a manner consistent with federal standards. We think that the purpose of the federal statute is obviously to induce the states to act, not to require them to do so. The statute allows the state to choose between foregoing 10 per cent of its allotment of federal-aid highway funds and compliance. If Congress had intended the provisions of 23 U.S.C., [section] 131 (Supp.II, 1967) to be mandatory on the states, there would have been no need to attach a monetary penalty to noncompliance. [Citation.] We hold that Congress has not invoked the Supremacy Clause by preempting the field of regulation covered by the state Act; that [the Act] ... is directory . . . .” (439 P.2d at p. 257.)

In addition, we conclude that Congress necessarily created a narrow exception to the HBA within the limited geographical area of the Tahoe Basin when it approved the Compact in 1980. In City of South Lake Tahoe v. Tahoe Reg. Plan. Agcy. (E.D.Cal. 1987) 664 F.Supp. 1375, the district court rejected a similar preemption argument. There, it was contended that TRPA’s power to enforce its limit on the number of flights into a local airport pursuant to its cease-and-desist order was preempted by the federal Airline Deregulation Act of 1978 (ADA), 49 United States Code section 1301. The ADA’s preemption clause, which prohibited states and interstate agencies from airline regulation, was held not to affect TRPA’s powers. Because the Compact was approved in 1980, two years after the passage of the ADA, “Congress, while generally desirous of an open sky policy, must have realized that the enactment of the Tahoe Regional Planning Compact... in December of 1980, after enactment of the Airline Deregulation Act of 1978, . . . would effectively require some incidental regulation of airlines into the Tahoe Basin.” (664 F.Supp. at pp. 1376-1377.) As a result, the court concluded “that the Congress necessarily created, for environmental reasons, a narrow geographical exception to the open sky policy embodied, in part, by the Airline Deregulation Act. . . .” (Id. at p. 1377.) The ADA’s preemption clause was held not to affect TRPA which derived its “broad environmental regulatory powers” from a federally approved compact. Finally, the court reasoned that even though the Compact and the ADA overlap, they do so only in the Tahoe Basin. As a result, “[b]ecause the ADA is general and National in scope and the Compact is specific and limited to a narrow geographic location, the two federal schemes can operate concurrently without harming the effectiveness of each other.” (Ibid.)

Similarly, when it approved the expanded Compact in 1980, two years after the amendment of the HBA, Congress must have realized that its effective implementation would require the removal of nonconforming outdoor advertising signs pursuant to its police powers, because TRPA has no powers of eminent domain. TRPA’s sign ordinance was enacted in 1975. As approved, the 1980 Compact provides that existing California-TRPA and TRPA ordinances shall continue to be applicable. (Compact, art. V, subd. (e).) Such congressional consent to legislation which is not formally part of the Compact has been characterized as “of great significance” in denying a preemption claim.

The effect of congressional approval of the Compact in indicating its intention not to preempt within the Region has been recognized by the federal courts. As noted by the district court in State of Cal. v. Tahoe Regional Planning Agency (E.D.Cal. 1986) 664 F.Supp. 1373, even “[assuming that this [statutory] language preempts and precludes state jurisdiction to prevent navigational hazards, [intervenor] . . . completely ignores the role of Congress in approving the Tahoe Compact which establishes the jurisdiction of TRPA.” (Id. at p. 1375.) The court held that TRPA’s shore zone ordinance, which tried to assure that shore zone projects would not pose hazards to navigation, was not preempted by 33 United States Code sections 401-406, which prohibit the creation of any obstruction to navigable waters not affirmatively authorized by Congress. The court also noted it had previously rejected similar preemption arguments in unpublished rulings in favor of TRPA. (Id. at p. 1375, fn. 3.) Fulfilling this congressional intent by recognizing a narrow exception to the statutory compensation clause in the Region does not thwart the full accomplishment of the primary purposes of the HBA.

Our conclusion is buttressed by the complete absence in this record of any indication that the Federal Highway Administration (FHWA) or the Secretary of Transportation (Secretary) have taken any action to enforce the HBA in the Tahoe Region. It is established that a decision by the FHWA and the Secretary not to undertake enforcement proceedings for a violation of the HBA’s outdoor advertising provisions is a decision committed to the discretion of the agency and is not subject to judicial review. (Sierra Club v. Larson (4th Cir. 1989) 882 F.2d 128.) The record before us does not indicate that any attempt toward enforcement of the just compensation provision of the HBA has been taken by the Secretary or the FHWA, despite the fact that the ordinance was effective September 22, 1975, and the first five-year amortization period would have expired in late 1980. This absence of enforcement activity indicates a recognition by the federal agency that enforcement in the Region is not appropriate.

That the Compact contains language generally preserving the powers and laws of the United States does not mandate a contrary conclusion. The only case which has addressed this issue, City of South Lake Tahoe v. Tahoe Reg. Plan. Agcy., supra, 664 F.Supp. 1375, 1377, held that this clause did not mandate preemption of a TRPA regulation by the ADA. The court stated that “[p]laintiff’s reliance on Article X, Section 5 of the Compact, to establish preemption is misplaced. That section is a general reservation clause designed to protect the jurisdiction of the Departments of the Interior and Agriculture. It was not intended to exempt the owner of the airport from the requirements of the Compact. Moreover, that clause is very similar to the reservation clause of the waterfront compact considered by the Supreme Court in DeVeau [v. Braisted, 363 U.S. 144, [80 S.Ct. 1146, 4 L.Ed.2d 1109] (I960)]. The court there concluded that the clause did not defeat jurisdiction under the waterfront compact to regulate certain labor activities which were argued as being preempted by the National Labor Relations Act.” (664 F.Supp. at p. 1377.) Similarly, this clause is not intended to protect billboard owners from effective implementation of the Compact.

Finally, because the HBA does not mandate the statutory payment of “just compensation” but merely grants a “powerful incentive” to do so, a private cause of action for compensation cannot be implied. (National Advertising Co. v. City of Ashland, Or. (9th Cir. 1982) 678 F.2d 106, 107.) As in Ashland, the HBA does not provide a remedy for advertisers seeking compensation.

Our conclusion that there is a limited exception to the statutory compensation requirement within the Tahoe Region is equally applicable to California’s Outdoor Advertising Act (OAA) (Bus. & Prof. Code, § 5200 et seq.), which operates as the HBA’s vehicle within the state. Describing the relationship between the OAA and the HBA, the California Supreme Court has stated that “California complies with the Highway Beautification Act through its Outdoor Advertising Act . . . [which] provides for restrictions upon outdoor advertising consonant with the provisions of the Highway Beautification Act.” (People ex rel. Dept. of Transportation v. Naegele Outdoor Advertising Co. (1985) 38 Cal.3d 509, 516 [213 Cal.Rptr. 247, 698 P.2d 150].) The compensation provisions of the OAA are “required by the federal Highway Beautification Act. . . .” (City of Salinas v. Ryan Outdoor Advertising, Inc. (1987) 189 Cal.App.3d 416, 425 [234 Cal.Rptr. 619].) Moreover, the exclusion of signs within the jurisdiction of the HBA from the OAA’s compensation exceptions indicates an intent that the OAA not be applied in any manner which conflicts with the HBA. (Bus. & Prof. Code, §§ 5412.1, subd. (c), 5412.2, subd. (c), 5412.3, subd. (c).)

For the first time on petition for rehearing, defendants argue that the OAA does not merely implement the compensation requirement for billboards under the jurisdiction of the HBA, but is an independent ground for striking down the TRPA ordinance. We conclude that the compensation requirement of the OAA cannot be enforced within the Region in derogation of the TRPA ordinance.

Where a compact organization has acted within the parameters of its jurisdiction, “[a] state can impose state law on [that] organization only if the compact specifically reserves its right to do so.” (Seattle Master Builders v. Pacific N.W. Elec. Power (9th Cir. 1986) 786 F.2d 1359, 1371 [state environmental laws inapplicable to compact agency where neither Washington nor Montana reserved such rights].) Whether a state law is applicable to TRPA generally requires consideration of “whether . . . [such] application . . . would be consistent with the Compact.” (People, etc. v. City of South Lake Tahoe, supra, 466 F.Supp. 527, 536.) Although no definitive test has been established, a two-step analysis can be gleaned from cases discussing this issue. First, the Compact is examined to determine whether it explicitly reserved to the states the right to impose their requirements on the bistate agency. (Cal. Tahoe Regional Planning v. Sahara Tahoe Corp., supra, 504 F.Supp. 753, 760.) Even where the Compact mentions particular types of laws, if it is not explicit regarding the means states might use to implement them, TRPA will not be bound by a state law which may result in the unilateral invalidation of a TRPA action. (Ibid. [California’s Political Reform Act held inapplicable to TRPA despite provision of Compact allowing each state to provide by law for the disclosure or elimination of conflicts of interest of its members].) Second, if there is no direct reference to a particular state law in the Compact, it may nonetheless be applicable under the “equal or higher requirement” provision of article VI, subd. (a) of the Compact. (People, etc. v. City of South Lake Tahoe, supra, 466 F.Supp. at pp. 536-538 [California Environmental Quality Act’s (CEQA) higher environmental disclosure standards held applicable to TRPA projects in California portion of Tahoe basin]; accord, Cal. Tahoe Regional Planning v. Harrah’s Corp., supra, 509 F. Supp. 753, 759-760.)

Because the OAA is not one of the state laws enumerated in the Compact, it can only be applicable to TRPA if it falls within the meaning of section 66801, article VI, subdivision (a). That article provides that “[e]xcept as otherwise provided . . . , every such ordinance, rule or regulation shall establish a minimum standard applicable throughout the region. Any political subdivision or public agency may adopt and enforce an equal or higher requirement applicable to the same subject of regulation in its territory. . . .” (Gov. Code, § 66801, art. VI, subd. (a).)

The “equal or higher” requirement provision of section 66801, article VI, subd. (a) is not synonymous with any additional requirement of state law relating to the same subject, such as the compensation provision at issue here. Rather, “Article VI(a) of the Compact only authorizes political subdivisions to adopt more stringent environmental standards than those of the TRPA with respect to areas within the subdivision.” (Cal. Tahoe Regional Planning v. Sahara Tahoe, supra, 504 F.Supp. at p. 764, italics added.) Limiting the interpretation of article VI, subd. (a) to equal or higher environmental standards is consonant with “the primary purpose of TRPA, . . . [which] is to protect the environment.” (People, etc. v. City of South Lake Tahoe, supra, 466 F.Supp. at p. 539.) Additional nonenvironmental standards which effectively thwart that purpose cannot be considered equal or higher requirements under the Compact. Unlike the disclosure provisions of CEQA which provide additional environmental information but cannot overrule TRPA, the OAA’s compensation requirement has no relation to environmental standards but would burden the Compact and overrule TRPA’s implementation of its ordinance within the Region. Accordingly, this particular requirement of the OAA cannot be enforced in the Region in derogation of the TRPA sign ordinance.

III

Section 5.00 of TRPA’s Ordinance Is Not Invalid as Purporting to Authorize a Taking of Property Without Payment of Just Compensation in Violation of the Fifth Amendment

The Fifth Amendment guarantees that private property shall not “be taken for public use without just compensation.” Although not all regulatory invasions of property rights amount to takings, constraints imposed upon property may be “so onerous as to constitute a taking which constitutionally requires compensation.” (Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 594, [8 L.Ed.2d 130, 133, 82 S.Ct. 987].) A land-use regulation can effect a “taking” which requires compensation under the Fifth Amendment if it “ ‘does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land.’ ” (Keystone Bituminous Coal Assn. v. DeBenedictis (1987) 480 U.S. 470, 485, [94 L.Ed.2d 472, 488, 107 S.Ct. 1232, 1242, ], quoting Agins v. Tiburon (1980) 447 U.S. 255, 260 [65 L.Ed.2d 106, 111-112, 100 S.Ct. 2138, 2141].)

Under established California law, an ordinance prohibiting existing billboards may be enforced as a constitutionally valid exercise of the state’s police power which does not require compensation if a reasonable amortization period for discontinuance of the use is provided. (Castner v. City of Oakland (1982) 129 Cal.App.3d 94, 96 [180 Cal.Rptr. 682]; National Advertising Co. v. County of Monterey (1970) 1 Cal.3d 875, 878 [83 Cal.Rptr. 577, 464 P.2d 33]; Livingston Rock etc. Co. v. County of L. A. (1954) 43 Cal.2d 121, 127 [272 P.2d 4]; City of Los Angeles v. Gage (1954) 127 Cal.App.2d 442, 460 [274 P.2d 34].) “Simply stated, an amortization provision provides a period of time in which a new land use ordinance will not be enforced, during which time a property user either can make a use conform to the ordinance, or, if a user cannot or chooses not to conform, during which a user can recover all or a part of his investment before the use must be discontinued.” (Georgia Outdoor Advertising v. City of Waynesville (4th Cir. 1990) 900 F.2d 783, 785.) The question before us is whether the United States Supreme Court’s decisions in First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304 [96 L.Ed.2d 250, 107 S.Ct.2378] (hereafter First English ) and Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [97 L.Ed.2d 677, 107 S.Ct. 3141] (hereafter Nollan) changed this law to preclude the use of amortization under the state’s police power and, in its stead, mandated the payment of just compensation for the removal of billboards in all cases. We conclude that they did not.

The trial court recognized this established law but concluded that First English is an obstacle to TRPA’s efforts to remove the billboards due to its holding that a property owner is entitled to just compensation under the Fifth Amendment where a regulation takes all use of the property. While the court did not expressly rule that amortization was no longer permissible, it found that “the outright use of the signs where now located is forbidden” under TRPA’s ordinance; that the sign owner “has only the right to remove the sign to some location where it is not prohibited (which would be outside of the Lake Tahoe Basin)”; and that “the property owner is left only with bare land no longer producing any income.” The court held that, under First English, “the effect of the TRPA ordinance on defendants’ signs amounts to a taking, leaving defendants only a minor vestige of use.”

In addition, the court found that, because the sign ordinance is not a health or safety regulation, it is entitled to less deference under Nollan, which “indicates that purely aesthetic values will no longer enjoy the deference previously given them.” It based this conclusion on a finding that TRPA is not charged or empowered to make public health and safety regulations and that it “is limited to purely aesthetic type regulations designed to preserve scenic beauty and to preserve environmental and recreational values.”

The trial court did not address the issue of whether TRPA should be required to pay compensation. Instead, it found section 5.00 of the ordinance, which requires removal of nonconforming signs following a five-year amortization period, to be invalid “as purporting to authorize the taking of property without the payment of just compensation in violation of the Fifth Amendment.”

As discussed below, we hold that First English did not rule out the historic use of legitimate land-use regulations for the removal of billboards after a reasonable amortization period. Accordingly, the trial court erred in determining that Section 5.00 of TRPA’s sign ordinance effectuates a “taking” on this basis. We also conclude that Nollan did not erode aesthetics or scenic zoning as a legitimate focus of such regulation and that TRPA’s ordinance advances a legitimate interest in maintaining the “natural scenic quality of the Region.” (TRPA Ord. No. 24, § 1.00.) Whether a taking has occurred in this particular case must await resolution on a full factual record. Because there remain triable issues of material fact as to whether the ordinance denies defendants economically viable use of their property, summary judgment is inappropriate and the case must be remanded for further proceedings.

A. Amortization Is an Appropriate Method for the Elimination of Nonconforming Uses

California cases have established that nonconforming uses may be eliminated by one of two “constitutionally equivalent alternatives: It can eliminate the use immediately by payment of just compensation, or it can require removal of the use without compensation following a reasonable amortization period.” (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 881 [164 Cal.Rptr. 510, 610 P.2d 407], rev. on other grounds Metromedia, Inc. v. San Diego (1981) 453 U.S. 490 [69 L.Ed.2d 800, 101 S.Ct. 2882].) In Livingston Rock etc. Co. v. County of L. A., supra, 43 Cal.2d at page 127, the court set forth the analytical foundation for the approval of compelled elimination of nonconforming uses within specified periods as follows: “Implicit in the theory of the police power as differentiated from the power of eminent domain, is the principle that incidental injury to an individual will not prevent its operation, once it is shown to be exercised for proper purposes of public health, safety, morals, and general welfare, and there is no arbitrary and unreasonable application in the particular case.”

The reasonable regulation of signs and billboards constitutes a valid exercise of police power. (United Business Com. v. City of San Diego (1979) 91 Cal.App.3d 156, 164 [154 Cal.Rptr. 263]; Carlin v. City of Palm Springs (1971) 14 Cal.App.3d 706, 712 [92 Cal.Rptr. 535]; National Advertising Co. v. County of Monterey, supra, 1 Cal.3d 875, cert. den. (1970) 398 U.S. 946 [26 L.Ed.2d 286, 90 S.Ct. 1869].) Because the values embedded in the concept of public welfare are “ ‘. . . spiritual as well as physical, aesthetic as well as monetary,’ ” “[i]t is well settled that the state may legitimately exercise its police powers to advance aesthetic values.” (City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 805 [80 L.Ed.2d 772, 787, 104 S.Ct. 2118], quoting Berman v. Parker (1954) 348 U.S. 26, 32-33 [99 L.Ed. 27, 75, S.Ct. 98].) Aesthetic or scenic zoning has been recognized as a legitimate state interest and as a proper objective in itself of the police power. Because California, like TRPA, relies on its scenery “to attract tourists and commerce, aesthetic considerations assume economic value. Consequently any distinction between aesthetic and economic grounds as a justification for billboard regulation must fail.” (Metromedia, Inc., supra, 26 Cal.3d at p. 861.)

The principle that “zoning legislation may validly provide for the eventual termination of nonconforming property uses without compensation if it provides a reasonable amortization period commensurate with the investment involved” is well established. (Castner v. City of Oakland, supra, 129 Cal.App.3d at p. 96; National Advertising Co. v. County of Monterey, supra, 1 Cal.3d 875; Livingston Rock etc. Co. v. County of L. A., supra, 43 Cal.2d 121; City of Los Angeles v. Gage, supra, 127 Cal.App.2d 442, 460.) In National Advertising Co., supra, the Supreme Court considered the validity of a county zoning ordinance which prohibited off-site billboards in an undeveloped district and which provided that nonconforming off-site signs be removed within one year of the date the property is reclassified into a different zoning district. At issue was the reasonableness of the one-year amortization period.

In approving the ordinance, the court noted that zoning legislation may validly provide for the eventual discontinuance of nonconforming uses within a prescribed reasonable amortization period commensurate with the investment involved. Whether a particular amortization period prescribed by an ordinance mandating the eventual discontinuance of its use is reasonable and commensurate with the investment involved is a factual determination and the burden is on the person challenging the ordinance to show its invalidity as to their property. (National Advertising Co., supra, 1 Cal.3d at p. 879.) The court held that plaintiff had not met its burden of demonstrating unreasonableness of the amortization period as to 31 of its signs which evidence indicated had already been fully amortized; however, removal of the remaining signs which were not fully amortized under rules of the Internal Revenue Service should await “a reasonable amortization period in order to permit plaintiff to recover their original cost.” (Id., at p. 880.)

In City of Salinas v. Ryan Outdoor Advertising, Inc., supra, 189 Cal.App.3d 416, 423-424, the removal of off-site billboards pursuant to a city ordinance was held not to constitute a taking without just compensation. In Ryan, the court stated that “[t]he U.S. Supreme Court has made it clear that local regulations imposing restrictions on outdoor commercial advertising are a constitutionally valid means of advancing the substantial governmental interests of traffic safety and the appearance of the city.” It noted that under National Advertising Co., “it is settled law that local zoning legislation may require termination of nonconforming uses if it provides for a reasonable amortization period, considering the investment involved.” (Ibid.) The court held that the five-year amortization period was reasonable as applied to the sign owners, who in fact had had fifteen years to recoup their investment before the issue came to trial.

The central issue in cases involving the termination of nonconforming uses is the reasonableness of the amortization period allowed. The burden is on the advertiser to establish the unreasonableness of the amortization period with regard to each structure declared to be nonconforming. (Ryan, supra, 189 Cal.App.3d at p. 424.) It is not required that the nonconforming property have no value at the termination date. (Metromedia, Inc., supra, 26 Cal.3d at p. 882, citing Art Neon Co. v. City and County of Denver (10th Cir. 1973) 488 F.2d 118, 121.) Relevant factors to be considered in determining whether an amortization period is unreasonable as applied to a particular property include amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, “remaining useful life, the length and remaining term of the lease under which it is maintained, and the harm to the public if the structure remains standing beyond the prescribed amortization period.” (Metromedia, Inc., supra, 26 Cal.3d at p. 884; United Business Com. v. City of San Diego, supra, 91 Cal.App.3d at p. 181 [amortization period of seven years not unreasonable on its face].)

First English, supra, did not eliminate the availability of amortization of nonconforming uses as a constitutionally valid method of implementing legitimate regulatory goals.

In First English, owners challenged an interim ordinance which banned the construction or reconstruction of any buildings in a flood protection area, which included a portion of their church campground property. The ordinance was enacted after a flood inflicted substantial economic losses and destroyed the owner’s campsite buildings. The United States Supreme Court did not address whether or not a taking had occurred by virtue of the ordinance. The focus of its decision was on the remedy available once a taking has occurred; specifically, whether the just compensation clause requires the government to pay for “temporary” regulatory takings.

In ruling against First English, the California Court of Appeal had applied the rule of Agins v. City of Tiburon (1979) 24 Cal.3d 266 [157 Cal.Rptr. 372, 598 P.2d 25], affirmed on other grounds Agins v. Tiburon, supra, 447 U.S. 255, in which the California Supreme Court held that a landowner may not maintain an inverse condemnation suit based upon a “regulatory” taking; rather, compensation was not required until the regulation or ordinance had been held excessive in an action for declaratory relief or in a writ of mandamus followed by governmental persistence in continuing the regulation in effect. Overruling Agins on this point, the United States Supreme Court reversed.

The court specifically rejected the suggestion that it “independently evaluate the adequacy of the complaint and resolve the takings claim on the merits. . . .” More importantly, it noted that it thus had no occasion to decide whether this particular ordinance actually denied plaintiff “all use of its property or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as part of the State’s authority to enact safety regulations.” (482 U.S. at p. 313 [96 L.Ed.2d at p. 262], fn. omitted.)

The remedial question posed was whether a government which abandons the enforcement of an ordinance must still pay compensation for the time period during which the regulation denied the landowner all use of its land. (482 U.S. at p. 318 [96 L.Ed.2d at pp. 265-266].) It noted that “temporary” takings which deny a landowner all use of his property are not different in kind from permanent takings which clearly require compensation. (Ibid.) Under these circumstances, mere invalidation of an ordinance is not a sufficient remedy under the just compensation clause. (Id., at p. 319 [96 L.Ed.2d at pp. 266-267].)

The court held that where the government’s activities have already worked a taking of all use of property, no subsequent action can relieve it of the duty to provide compensation during the taking period. The state may not constitutionally limit the remedy for a taking to nonmonetary relief. (482 U.S. at p. 321 [96 L.Ed.2d at pp. 267-268].) The court was careful to reiterate that it had assumed that the allegation that “all use” of the property for a considerable period of years was taken was true and it limited its holding to the facts presented. (Ibid.)

On remand, in First English Evangelical Lutheran Church v. County of Los Angeles (1989) 210 Cal.