Dissenting. — “Private property may be taken or damaged for public use only when just compensation . . . has first been paid to . . . the owner.” (Cal. Const., art. I, § 19; italics added.) “Damage,” as used in the constitutional provision, has always included diminution in intrinsic value even when falling short of actual taking, spoilation or invasion. (Reardon v. San Francisco (1885) 66 Cal. 492 [6 P. 317].)
It must be clear to all of us that, as alleged by plaintiffs, the City of Tiburón has decided through the political process that in order to preserve its way of life and to maintain what is already among the highest residential land values in the state,1 certain of its property owners must sacrifice use of their lands. Such lands — including plaintiffs’ — are thus alleged to have been damaged in order to preserve or enhance the value of undisturbed land. This is the clearest of examples wherein our system functions “ ‘to sacrifice the individual to the community, and it seems very difficult in reason to show why the [City of Tiburón] should not pay for property which it destroys or impairs the value ....’” (Bacich v. Board of Control (1943) 23 Cal.2d 343, 351 [144 P.2d 818].)
Recognizing the policy considerations in resolving the question when a “taking” must be paid for by government and when it may be deemed merely a permissible intrusion incident to governmental function, the United States Supreme Court has stated that a factual consideration “is the extent of the diminution [of property value]. When it reaches a certain magnitude, in most if not all cases there must be an exercise of eminent domain and compensation to sustain the act.” (Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 413 [67 L.Ed. 322, 325, 43 S.Ct. 158, 28 A.L.R. 1321].) What greater diminution can there be than where — as here — plaintiffs have alleged and the City of Tiburón has admitted that the ordinance complained of “has completely destroyed the value of Plaintiffs’' property for any purpose or use whatsoever . . .”? We have said that the “underlying purpose of our constitutional provision in inverse — as well as ordinary — condemnation is ‘to distribute through the community the loss inflicted upon the individual by the making of public improvements’ [citation]; ‘to socialize the burden . . . —to afford relief to the landowner in cases in which it is unfair to ask him to bear a burden that should be assumed by society’ [citation].” (Holtz v. Superior Court (1970) 3 Cal.3d 296, 303 [90 Cal.Rptr. 345, 475 P.2d 441].) If those words have any meaning at all this must be the case where they are *280applicable — unless, of course, the majority deem they are not bound by the honored rule of law which prevents the court on a demurrer from finding factual matters contrary to matters well pleaded in the complaint.2 (See, Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241].)
The majority opinion attempts to justify its judgment on the ground that plaintiffs — if they are entitled to relief at all — must look to some remedy other than inverse condemnation. {Ante, p. 272.) While purporting to recognize that the Fifth Amendment mandates “private property shall not be taken for public use, without just compensation,” that the “ ‘constitutional provision is addressed to every sort of interest the citizen may possess’ ” {ante, p. 273), and that “we cannot countenance the service of [the need of government to improve the quality of life] through the uncompensated destruction of private property rights” {id.), the majority refuse to follow these precepts. Their refusal is grounded on their mistaken analysis of this court’s earlier decision in HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508 [125 Cal.Rptr. 365, 542 P.2d 237],
In HFH the majority held that inverse condemnation does not lie in a downzoning action when the complaint alleges mere reduction in market value. That case expressly stands for the proposition that a zoning ordinance which “merely decreased the market value of property” does not necessarily violate constitutional provisions “forbidding uncompensated taking or damaging” of property. (HFH, Ltd. v. Superior Court, supra, 15 Cal.3d 508, 518.) If, as the majority held in HFH, the difference between “merely decreasing” a property value on the one hand and “taking” a property interest on the other is one of degree, the majority today — in view of the admitted allegation that the ordinance “has completely destroyed the value of plaintiffs’ property for any purpose or use whatsoever” — obliterate that distinction. Under today’s holding inverse condemnation is no longer an available remedy — perhaps short of • government actually dispossessing an owner — whatever the harshness of a zoning regulation. The distinction which the majority purport to carefully draw in HFH has been rejected and that case provides no support for today’s decision.
*281Until today, this court has adhered to its rule that a harsh zoning regulation gives rise to inverse condemnation. (See Klopping v. City of Whittier (1972) 8 Cal.3d 39, 46 [104 Cal.Rptr. 1, 500 P.2d 1345].) The rule, moreover, is compelled by the Legislature: “The Legislature hereby . . . declares that this article [Open-Space Zoning] is not intended and shall not be construed, as authorizing the city ... to exercise its power to adopt ... an open-space zoning ordinance in a manner which will. . . damage private property for public use without the payment of just compensation therefor.” (Gov. Code, § 65912; see also, Gov. Code, § 51073.) However, the majority reject the established. rule and legislative direction in disapproving the recent case of Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613 [129 Cal.Rptr. 575] (petn. for hg. den. July 15, 1976). That case involves a particularly harsh zoning ordinance. The court concluded, after a detailed review of pertinent decisions, “that a valid zoning ordinance may nevertheless operate so oppressively as to amount to a taking, thus giving an aggrieved landowner a right to damages in inverse condemnation.” (Id., at p. 621.) The “leading authority” relied on by the majority {ante, p. 272) is in agreement with Eldridge. (See, 1 Nichols on Eminent Domain (3d rev. ed. 1978) Nature and Origin of Power, § 1.42(1), pp. 1-116 through 1-121; 2 Nichols on Eminent Domain (3d rev. ed. 1978) Taking and Damage, § 6.3, p. 6-65.)
When a zoning restriction is so harsh as to transcend a constitutionally protected property right is a question of fact to be determined by trial rather than by demurrer. (See Wilkins v. City of San Bernardino (1946) 29 Cal.2d 332, 338-339 [175 P.2d 542]; Eldridge v. City of Palo Alto, supra, 57 Cal.App.3d 613, 628.) Plaintiffs have well pleaded a cause of action in inverse condemnation, and should be afforded an opportunity to prove their allegations.
Today’s real issue is the extent to which a court will permit — even encourage — governmental agency intrusion into a constitutionally protected area. The majority argue we must condone greater intrusion; that we must recognize “changing attitudes toward the regulation of land use” {ante, p. 275); that community planners must be permitted the flexibility which their work requires {ante, p. 275); that the use of inverse condemnation “will have a chilling effect upon the exercise of police regulatory powers at a local level” and “ ‘will discourage the implementation of strict or innovative planning measures in favor of measures which are less stringent, more traditional, and fiscally safe’ ” {ante, p. 276); and *282that enactment of a zoning ordinance being essentially a legislative process, courts should cease affording a legal remedy in inverse condemnation.3
Today’s decision effectively pronounces that henceforth in California title to real property will no longer be held in fee simple but rather in trust for whatever purposes and uses a governmental agency exercising legislative power elects, without compensation. While the majority of this court can finally declare that such a taking does not offend local constitutional prohibitions, their judgment does not foreclose federal constitutional examination. It is clear that compelling federal authority requires compensation for the taking alleged by plaintiffs in this case. The United States Supreme Court will hopefully adhere to Justice Holmes’ admonition that “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” (Pennsylvania Coal Co. v. Mahon, supra, 260 U.S. 393, 416 [67 L.Ed. 322, 326]; see also Goldblatt v. Hempstead (1962) 369 U.S. 590, 594 [8 L.Ed.2d 130, 134, 82 S.Ct. 987]; Armstrong v. United States (1960) 364 U.S. 40, 49 [4 L.Ed.2d 1554, 1561, 80 S.Ct. 1563]; U.S. v. Central Eureka Mining Co. (1958) 357 U.S. 155, 168 [2 L.Ed.2d 1228, 1236, 78 S.Ct. 1097]; Berman v. Parker (1954) 348 U.S. 26, 36 [99 L.Ed. 27, 39, 75 S.Ct. 98]; U.S. v. Willow River Co. (1945) 324 U.S. 499, 502 [89 L.Ed. 1101, 1107, 65 S.Ct. 761]; Block v. Hirsch (1921) 256 U.S. 135 [65 L.Ed. 865, 41 S.Ct. 458, 16 A.L.R. 165].) Lower federal court decisions are universally contrary to the majority opinion in this case. When the Richmond Redevelopment Agency urged that because it exercised police powers it did not have to pay just compensation to a landowner, the Ninth Circuit held: “It is clear . . . that a governmental agency acting pursuant to the State’s police power must pay just compensation for any taking it effects.” (Richmond Elks Hall Assn. v. Richmond Redevelopment (9th Cir. 1977) 561 F.2d 1327, 1332; see also Beneson v. United States (Ct.Cl. 1977) 548 F.2d 939, 947; *283Drakes Bay Land Company v. United States (Ct.Cl. 1970) 424 F.2d 574, 584; Dahl v. City of Palo Alto (N.D.Cal. 1974) 372 F.Supp. 647, 648-649.)
The Supreme Court’s latest expression of continuing adherence to the mandate of the .Fifth and Fourteenth Amendments is contained in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979) — U.S. —[59 L.Ed.2d 401, 99 S.Ct. 1171]. In that case lands originally zoned as residential and commercial were rezoned by an interstate agency to allow limited residential use subordinated to public recreational use. Property owners claimed that the land use ordinance constituted inverse condemnation. The district court held that a cause of action for inverse condemenation was sufficiently alleged but that the action could not be maintained against the interstate agency, and that individual members of the agency were immune from suit. The court of appeals held that the interstate agency was federal in character, that the agency was therefore immune under the Eleventh Amendment, and that individual members of the agency were also immune. The Supreme Court answered by holding a cause of action was properly alleged, and that the interstate agency was neither federal in character nor immune, although individual agency members were immune. While the court was primarily concerned with immunity issues, the sense of the holding is that an action in inverse condemnation lies for a taking brought about by land use regulation of the very nature involved in the instant case.
Particular areas of concern must be seen arising from today’s decision. First, the majority’s solution is really a nonremedy for an aggrieved landowner. If he can protect his lands only through a proceeding to declare the invalidity of a land use regulation, he must lose interim use of his land — most likely for a period of years — suffering substantial legal costs, even though he may ultimately prevail. Moreover, there is nothing to prevent the governmental agency from reenacting a modified ordinance compelling a second or even third proceeding — a burden exceeding bare possibility in view of the majority’s invitation to oppressive land use limitation. Many landowners — particularly small ones — will be economically unable to challenge even a confiscatory enactment, being compelled to walk away from their properties.
Perhaps of greater concern is the consequence that Tiburón — and many other govenmental agencies enacting similar land use plans — will price properties within their control out of reach of most people. Only the most wealthy will be able to afford purchase of and construction on lands in such areas. The environment which Tiburón seeks to preserve will *284disproportionately benefit that wealthy landowner, whose home will be surrounded by open space, unobstructed view and unpolluted atmosphere.
I reject the majority rationalization. It abdicates our responsibility to give meaning and substance to constitutional mandate.
Today’s decision must further encourage city councils and their zoners to politically preserve entrenched property use. The decision not only shuts Mr. Agins out from our courtroom, but also his successor-owners from sharing a nice but exclusive environment.
The judgment of dismissal should be reversed.
Appellants’ petition for a rehearing was denied May 17, 1979. Clark, J., was of the opinion that the petition should be granted.
It is alleged by plaintiffs’ complaint and admitted by the city’s demurrer that the City of Tiburón has “the highest land value per acre for suburban areas in the State of California.”
Conclusionary allegations of damage to property are insufficient to support — against a demurrer — a complaint in inverse condemnation. (See, Hecton v. People ex rel. Dept. of Transportation (1976) 58 Cal.App.3d 653 [130 Cal.Rptr. 230].) Additionally, the particular facts of the case must be set out in the complaint. (Id., at p. 657.) Plaintiffs have alleged with factual particularity the significant activities taking place prior to and constituting the inverse condemnation. They also allege the lack of remaining reasonable beneficial use resulting from these activities. (Cf. Pinheiro v. County of Marin (1976) 60 Cal.App.3d 323, 328 [131 Cal.Rptr. 633].)
The majority’s holding unnecessarily goes far beyond a mere determination that — in the majority’s view — plaintiffs in this case are entitled to no relief. In the concluding portions of the majority opinion it is stated — although as earlier noted contrary to established rules on review of judgments following sustaining of demurrer — that the Tiburón ordinance does not deprive plaintiffs of “substantially all reasonable use” of their property. (Ante, p. 277.) Thus HFH, Ltd. v. Superior Court, supra, 15 Cal.3d 508, requires rejection of plaintiffs’ claim because there has been a “mere diminution” of value as opposed to a taking of property, according to the majority. The majority’s further assertion that inverse condemnation is no longer available to compensate an aggrieved landowner, appears to be — after more than a century of settled law to the contrary— obiter dicta. Such far-reaching pronouncement would be better left to another day and case wherein the issue is squarely presented and the parties have full opportunity to address it.