dissenting:
Although the majority, by detailing a long series of immaterial facts, attempts to portray this case as one of constitutional dimensions, in fact the case (1) is very simple and (2) does not reach constitutional proportions.
The plaintiffs are the owners of parcels of real estate which previously comprised one parcel. In 1958 and 1959, the previous owners of that parcel divided it into six lots without complying with the California Subdivision Map Act. That Act, Cal.Gov’t Code §§ 66410 et seq., states that a split of a parcel into five or more parcels constitutes a subdivision and requires the filing of a subdivision map. Id. § 66426. The purpose of a subdivision map is to require real estate developers to divide large parcels into lots which comply in size to zoning ordinances, to dedicate public roads, and to provide for sidewalks, curbs, gutters, water lines, sewers, fire hydrants, and easements for electrical facilities. See id. §§ 66418, 66419. The constitutionality of such requirements is no longer open to debate. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386-87, 47 S.Ct. 114, 117-18, 71 L.Ed. 303 (1926).
When the plaintiffs acquired their lots, they also received a grant of a 50-foot easement to use a parcel of property called Hacienda Drive for roadway and utility purposes. The easement called Hacienda Drive is not a public road. It has never been dedicated to nor accepted by the city.
The plaintiffs have applied to the city for a permit to pave Hacienda Drive to serve as a private driveway. The city denied the application because plaintiffs’ land is undeveloped and the plaintiffs presently have access that is satisfactory for the land’s present use. The plaintiffs filed suit in federal court claiming that the city’s denial of their paving application constituted a taking of their property without just compensation, in violation of the Fifth and Fourteenth amendments to the United States Constitution. The district court entered summary judgment in favor of the city. I submit that the district court was correct and its judgment should be affirmed.
It is inconceivable that the denial of an application to pave a private driveway constitutes a taking of property. The denial does not affect the applicants’ right to use their property in a lawful manner. Plaintiffs’ land has been and is now undeveloped and there is no need to pave the private road unless the plaintiffs intend to develop the property. Yet at no time have they applied for a building permit or attempted to use the property for anything other than its present use. Nothing in fact or in law has been taken from them. The utility of plaintiffs’ property has not been changed by the denial of a permit to pave a private easement to the property.
In Kirby Forest Industries, Inc. v. United States, — U.S.-, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984), the Supreme Court summarized the law pertaining to inverse condemnation. It stated:
The principle that underlies this doctrine is that, while most burdens consequent upon government action undertaken in the public interest must be borne by individual landowners as concomitants of “ ‘the advantage of living and doing business in a civilized community,’ ” some are so substantial and unforseeable, and can so easily be identified and redistributed, that “justice and fairness” require that they be borne by the public as a whole.
Id. at 2196 (footnotes omitted).
In simple terms, the City of Tiburón has not placed any burden on plaintiffs’ property. If and when plaintiffs apply for permits to develop their properties, and the city rejects their applications, a controversy may arise which would then be ripe for adjudication. See Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 117-21, 514 P.2d 111, 115-18, 109 Cal.Rptr. 799, 803-06 (1973).
Long ago, at the commencement of these proceedings, the city filed a notice of lis pendens. The Court, in Kirby Forest Industries, 104 S.Ct. at 2197, held that im*765pairment of market value of real property incident to otherwise legitimate government action ordinarily does not result in a taking. Thus the filing of a notice of violation by the city cannot in itself state a claim for a taking even though it may cloud the plaintiffs’ title. Cf. Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974) (zoning ordinances usually have an impact on property value).
The majority, while clouding the simplicity of this ease, has also misinterpreted and unwisely expanded California law. In Keizer v. Adams, 2 Cal.3d 976, 88 Cal.Rptr. 183, 471 P.2d 983 (1970), the plaintiffs were innocent purchasers of lots in a subdivision where, like here, the grantor had violated the Subdivision Map Act. The court held that the present property owners could not be denied a properly applied for building permit because the grantor had illegally subdivided the land, nor could they be required to join with other property owners to submit a subdivision map of their own. The court held that the building permit application was to be considered “without regard” to the violation of the Subdivision Map Act. 2 Cal.3d at 981, 88 Cal.Rptr. at 186, 471 P.2d at 986.
The city here does not claim that the illegal subdivision forecloses the proper use of plaintiffs’ property. Rather, it is simply requiring the plaintiffs to comply with ordinary zoning and building conditions. In Keizer the court stated:
[I]t is equitable that the county be authorized to require that plaintiffs, as a condition to the issuance of a building permit, comply with such reasonable conditions as the county may require in the public interest ... [and] perform or agree to perform or construct such reasonable improvements with respect to plaintiffs’ lot as could have been required of plaintiffs’ grantor as a condition of subdividing the latter’s tract of land under the provisions of the Subdivision Map Act and the county subdivision ordinance at the time of the sale to plaintiffs of their lot.
2 Cal.3d at 981, 88 Cal.Rptr. at 186, 471 P.2d at 986. See also Cal.Gov’t Code § 66499.34. Nowhere in Keizer is it implied that a city cannot require proper planning for utilities, roads, sewers, and fire hydrants before a house can be built.
Further, the majority ignores that the state courts, interpreting California law, held against the plaintiffs. Six years ago this court ordered that the district court abstain from determining the federal inverse condemnation questions raised by the plaintiffs until state court proceedings had been exhausted. Sederquist v. City of Tiburon, 590 F.2d 278 (9th Cir.1978). The plaintiffs went to state court and filed an action which incorporates all the state law allegations set forth in the federal complaint. The state courts in unpublished opinions have determined that plaintiffs do not allege an unlawful taking under state law and that the city properly denied plaintiffs’ application to pave. The majority instead of recognizing that six years ago this court required the plaintiffs to exhaust their state remedies and the state courts have ruled that the City has not violated any state law, makes the curious assertion that what the City is doing in this case “may be illegal under California law.” The majority for some reason not explained does not want to recognize that the parties have been to state court and there is no illegality under state law.
The district court must be affirmed.