830 F. 2d 968 - Kinzli v. City of Santa Cruz

The opinion filed June 4, 1987, 818 F.2d 1449, is amended at the slip op. page 13, second paragraph, after the sentence ending "denying them a variance." [page 1455, 2d col. line 9] by inserting the following footnote:

* In their petition for rehearing, the Kinzlis erroneously argue that their takings claim is ripe under the Supreme Court's recent decision in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, --- U.S. ----, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). In First English Evangelical, the Supreme Court held that the question of whether the fifth amendment requires compensation for regulatory takings which are ultimately invalidated by the courts was ripe for consideration. The Court based its decision on the fact that the state court below had assumed that a taking had occurred, denying compensation on the ground that the only remedy for a regulatory taking is nonmonetary relief. --- U.S. at ---- - ----, 107 S.Ct. at 2383. The Court explicitly distinguished cases such as this one in which "the factual disputes yet to be resolved by state authorities might still lead to the conclusion that no taking had occurred," or to the conclusion that "just compensation" had been paid. --- U.S. at ---- - ---- & n. 6, 107 S.Ct. at 2383-84 & n. 6 (distinguishing the MacDonald, Sommer & Frates line of cases).