*1 A. No. 20673. In June 14, Bank. [L. 1949.] DONALD AYRES, B. Appellant, THE v. CITY COUNCIL
OF THE CITY OF ANGELES, Respondent. LOS *2 Ingebretsen Eugene Burrell & Musick, Elson,
Hewlett & Appellant. M. Elson Attorney, Jones, City Bourke Assistant
Ray Chesebro, L. Deputy Attorney, Lev, City L. Attorney, Lester City Respondent. judg petitioner from a This appeal
SHENK, J. brought proceeding a mandamus denying relief in ment approve proposed city council compel respondent map imposed without certain conditions. of 13 acres owned map for the subdivision A tentative commonly known as the Westchester petitioner what October, Angeles Los submitted in the District pursuant 1944, city planning commission to the Sub- (Stats. 1937, p. amended, now Bus. division Code, seq.). planning & 11500 et commission at- Prof. § petitioner objected, tached four conditions to which the whereupon appealed he council. The matter was hearing body, for a before that after an noticed order sustaining each petitioner was made of the conditions. The thereupon present proceeding commenced the superior petition court. Because of the inclusion allegations tendering the lack issue of of a full hearing, the court in overruling the demurrer to petition also ordered that the proceed trial of other presentation factual issues on and con- of all sideration material and relevant evidence. The trial consumed two weeks in the course of judge which the trial locality viewed the subdivision. Findings judgment were made and upholding entered the lawfulness reasonableness of the conditions. The appeal sufficiency involves the support evidence to findings judgment. *3 pro- The area known as Westchester District of which the posed part 3,023 13-acre subdivision forms a consists acres. southerly northerly is and by bisected a direction Se- pulveda Boulevard, easterly westerly and and Manchester 1 It extends mile to Boulevard. the south of Manchester a north; and mile and a half to the and 1 mile on either side Sepulveda. Before subdivision the land in the district Angeles was owned Los Company, Security- Extension Angeles, Superior First National Bank of Los Oil Com- pany. petitioner represented The latter as subdivider selling agent. In 1940, general the formation of a plan development of the district was commenced. plan Sepulveda fixed business area on immediately Boulevard south of Manchester petitioner Boulevard and the was placed charge development by the subdividers. The so-called design cellular of residence lot subdivision employed so rear of residential principal thorough- lots abuts the fares, prohibiting thus access to the lots therefrom. Another purpose type this of subdivision was to minimize the amount of land for purposes. street plan This had followed in the been Requirements Westchester district. in- suring uniformity among imposed, were which were the dedi- strip cation of 10-foot in the residence areas and a 13-foot 34
strip on each side in the business section for the Sepulveda Boulevard, setting strip and the aside of planting purposes varying in the in width rear of lots at the bordering thoroughfares. residence principal sections of the tract, the last subdivisions petitioner’s 13-acre triangle. northerly district, Its bound- long is a narrow southerly point length, ary is than 500 and the less feet northerly Ari- triangle line. 2,400 about feet 'westerly along Sepulveda line. Boule- zona Avenue runs heavily thoroughfare artery, vard, principal trafficked highways converge form easterly borders line. These southerly triangle. Sepulveda Boulevard, point convergence point from a to the a short distance north point north line of wide south of that tract, is feet but Seventy-seventh feet wide. Arizona Ave- Street enters nue from the center of approximately opposite west map shows the extension tract, Seventy-ninth through Street enters tract. street of that north of the a short distance from the west Avenue Arizona An of that street extension southerly point of the tract. land triangular tip of would leave a through the subdivision southerly point. The by 75 to the wide feet feet about 12% north of include 10 residence lots would proposed subdivision fronting on Arizona Seventy-seventh Street extension depths Sepulveda frontages 80-foot Avenue feet. Entrance varying from Boulevard exclusively. from Arizona Avenue would be residence lots adjoining Seventy- immediately north of The lot proposed to be used business seventh extension Street Seventy-seventh lot Street re- drive-in, and the south ligious purposes. planning commission
The four conditions and the trial court are: approved council abutting Sepulveda strip 1. That a 10-foot Boulevard be *4 highway. widening of dedicated for the along rear of strip 2. That an additional 10-foot the the shrubbery planting be lots restricted to the of trees and for ingress egress purpose preventing of direct between Sepulveda the lots and Boulevard. Seventy-seventh
3. That the extension of be dedi- Street cated a 80 instead to width of of feet. by
4. That the area which would be covered an extension Seventy-ninth point Street and south tri- to the angle purpose for use for the eliminat- dedicated street ing it aas traffic hazard. petitioner objected foregoing conditions on the
ground provided by they expressly were not Sub- for by division Map city ordinance; Act nor that conditions required 21, 4, and condition 3 insofar as it dedication in of 60 feet width, relationship excess in bear no reasonable protection safety public health, wel- fare, taking and amount of private property to a use compensation. without (§§ 99%) Angeles City
Article VIII 94 to of the Los Char- department city planning. By ter deals with the section 94 department given powers all the and duties which are granted imposed upon city planning to or commissions or departments*by law, provided state and as city ordinance, subject to article VIII. Pursuant and to thereto the Plan- ning (Stats. Act of 1805 as p. amended2 Deering’s Laws, 5211b), functioning Gen. there is in Angeles planning of Los commission and appointed by director planning it who acts as the advisory agency of the commission. Section 95 of char- ter requires prepare plan planning director a master physical development of the him city, vests in powers discharge and calls for relation duties required by Map subdivisions as the Subdivision imposed by Act and as By ordinance. section 96% the planning hearings commission is to hold on the plan master parts adopt thereof and consider and the same. Section 11525 of the Map Subdivision Act vests control design improvement govern- subdivisions ing counties, subject bodies of cities and to review as to rea- sonableness the superior county in and for court which the land is situated. provides Section improvement the design,
survey matters, data of including subdivisions related procedure in securing approval, governed by official are provisions provisions Subdivision Act and regulating design improvement of local ordinances of subdivisions. any person
Section 11538 it makes unlawful offer for sale filing sell subdivision lot until of a final map compliance with the act and local ordinances. The conveyance any part of a subdivision lot or block num-
36 map has been recorded a final permitted her until the initial action is (§ 11539). declares that Section specified data as preparation map of with the a tentative map act. the local ordinances and the regu- ordinance 11551 states if there is a local Section that design the sub- lating improvement of subdivisions and may provisions map comply divider shall with its before governing approved; but if there is no ordinance such may body require streets precedent approval a condition as ways adequate drainage and of width properly and located may requirements. make no but other if is dissatisfied that the subdivider provides Section map may he regarding tentative action initial hearing body a noticed upon which governing to the appeal neighborhood character of the testimony as to the shall take kinds, nature located, the is to be the subdivision which develop- of quality or kinds improvements, of and extent phase adapted and other best the area is which ment to inquire into, at the conclusion desire matter it of findings are body may as make such governing local ordi- act or provisions with the not inconsistent nances. “Design” “Improvement” and as used in words provides “Design” defined. Section are re-
act alignment, grades widths, alignment and street and fers right ways drainage and easements and sani- widths lot area and and minimum width. tary Section 11511 sewers “Improvement” as such work street and utilities defines agreed installed, to be installed, the subdivider streets, be dedicated for highways, etc., land to as are on necessary for use the lot owners the subdi- neighborhood drainage local traffic and and needs. vision Angeles, Los amended, as No. 79310 of Ordinance regulations governing platting prescribes the rules filing approval and the subdividing of lands adopts the definitions The ordinance maps. declared “Design” “Improvement” as Subdivision subjects Map primary are such Specifically Act. treated to the secondary streets, which are to conform master alignments, widths, arteries, grades, street plan of traffic rounding intersections, dead-ends, block tangents, curves frontage streets, alleys, size, and side lines corners, private drainage grades facilities, exist- lots, blocks, sewer and easements, dangerous walkways, ing areas, improvements, provided it is Acceptance” Under “Conditions like. accept any map final engineer refuse provisions which does not conform Subdivision provisions ordinance, Act, the the conditions of approval map. provided is also *6 tentative It agency city upon advisory the recommendation of or the engineer may as in the of such variations be made exercise required judgment may sound, reasonable be warranted or physical the size, use, because of or other conditions property, except or the type subdivision, that no variations may requirements Map be made as to the of the Subdivision Act. appears
It be petitioner’s to condi- contention that no may tion be exacted which is expressly provided not for Map Subdivision Act or provisions the ordinance not in conflict therewith; requirements may at all events the deal be to laid streets out subdivider within the confines of the subdivision to take care of traffic needs therein, and that may no dedication be exacted for additions to existing highways. streets or must be obvious at the may outset that this effect city’s from the or from the organic
not be drawn statute law foregoing The provisions or ordinances. review of those does authority city planners indicate that the is so cir city (Const, The status of an cumscribed. autonomous art. Advertising West Coast Co. XI, 6; v. 14 Cal. Francisco, San § City 138]; P.2d v. Williams, 2d 516 Oakland 15 Cal. [95 168]) recognized by P.2d express 2d 542 references [103 city in the Map to ordinances Subdivision Act. Where as on city’s power here no restriction limitation specific charter, forbidding particular contained none is included either in Map conditions the Subdivision Act or ordinances, proper it is to conclude that conditions which are map are lawful not inconsistent with the act and required reasonably the ordinances are subdi type and use related vision as to the character of local and neighborhood planning and traffic conditions. petitioner
The relies on section 11551 of the which act purports authority limit impose conditions the ab ordinances, sence local on the definition word “Improvement” id section 11511. But applicable here the provisions of the ordinances and of the act do not restrict provide reasonable highways conditions to streets and neighborhood relation to the local and traffic needs. only to such “Improvement” as used in the act refers word by the subdivider on the improvements as are to be installed Implicit land those needs. therein is the to be dedicated to imposed recognition reasonable conditions be necessary purposes which is not the dedication of land for improved by provisions of the act the subdivider. land impose do not the restrictions or limitations on the which merely petitioner, but dedicated as invoked “improvement” constitute a definition of word as used Sepulveda If the act. the dedications tip Boulevard and for the elimination of southern triangle lawfully required are it can be no source otherwise complaint petitioner that he is not to make improvement as well the dedication. The trial court correctly determined that the conditions were not precluded by the act. 11552) (§Act and the ordi
The Subdivision in relation to that the matters consideration nances indicate contemplate the char imposed conditions the reasonableness kinds, nature extent neighborhood, acter quality development kinds of improvements, *7 needs, phases, adapted, the traffic and other area is best the conditions the physical or other including size, use, the type and the of subdivision. property, widening strip be dedi- 1, that a 10-foot As to condition widening Sepulveda finding Boule- cated, is that the the authorities whether or contemplation the in vard had been subdivide; but that the crea- intended to petitioner not the give subdivision would rise uses of the and the tion necessitating widening the conditions traffic and other to necessary widening for and would was boulevard; that the the requirement was reason- owners, and that the lot benefit the health, safety and protection of the ably related general welfare. 2, that an additional feet be regard to condition
With strip, court found that such a planting the reserved for already contemplation, creation of in but the strip was in- the use to confine necessitated restricted the subdivision away Sepulveda egress and from the lots from gress to noises, traffic Boulevard; to screen the lot owners the boulevard; fast-moving the views of the traffic on fumes and crossing safety islands for residents the boulevard provide waiting traffic, lanes vehicular on foot and reasonably related to imposition of the condition was safety general public health, welfare. protection of the pattern subdivision, foregoing was found that including strips development in planting conformity in Sepulveda frontage, Boulevard was neighborhood plan design, and had been carried out with- objection by petitioner in district until out and others filing by map the tentative for subdivision petitioner^ requirements, changes of his acres. Variations some others, delays making improvements, abandonment incompleteness plans to indicate the master failure precise details, thereon the found be minor, the court unauthorized, bearing and without adverse on the lawfulness or reasonableness of the imposed. conditions finding 3, respecting required as to condition 80- Seventy-seventh through width of the foot Street extension tract, general was covered trial court’s conclusion that there was no application unreasonable of the Subdivision objected of the conditions petitioner.
Specifically as to condition the dedication to eliminate southerly tip triangle, was it found that without regard to the subdivision it had been the project intention to Seventy-ninth petitioner’s Street either across the tract it; give below also that the subdivision would rise to and necessitating create traffic conditions and hazards the elimi- tip proper nation of the locality, control of traffic in would benefit lot proposed subdivision, owners reasonably protection related public health, safety welfare.
All intendments be indulged must to sustain the find- ings judgment. physical Consideration alone of the and conditions, remembering facts judge also that the trial locality, support viewed the indicate sufficient therefor. respecting contentions width the Sev- enty-seventh Street will not extension be further discussed except to religious note the proposed business and uses *8 respective the abutting Seventy- lots and the fact that seventh is the street to transverse the tract between Sepulveda Boulevard Avenue, sufficiently sup- and Arizona port the required reasonably conclusion that the width is potential related to the traffic needs. petitioner
The quarrel does not with the conclusion the other conditions are desirable and their ful- accomplish fillment will the specific ends stated. more His city contemplated taking property complaint that the purposes any event, in that the benefit to indicated relatively compared to will small lot owners and the tract be large; therefore that the return to the at the beneficial requirements of eminent amount to an exercise authority guise of subdi- pursuing domain under the map proceedings, and that the exercise thereof vision compensation paid. unconstitutional unless sight appears to have lost arguments petitioner In his uniformity type of lot subdivision particular applied in the plan theretofore lo- design and neighborhood strip requirement dedication including the cality, strip planting restriction to use with- widening purposes stated, of these matters is As consideration out dedication. Act, provisions of the Subdivision precluded statutory contrary provisions 'and the local both the on the but ~7 design and use "should con- law indicate zoning requirements. neighborhood planning and form to average depth minimizes the greater than of the lots Here In it improvement cost. fact and street land loss greatly position would seem to be petitioner’s said that require- type and its related improved this of subdivision zoning. conformity neighborhood planning with ments ingress egress regular design subdivision, with Boulevard, would have been Sepulveda out of to and from neighborhood harmony plan and traffic needs. improvement peti- dedication and have would service roads and lanes diversion tioner of lateral artery main the evidence traffic to and local land than for the have used more shows would have increased the cost of planting strips, and would petitioner. improvements to be installed The record design generally the so-called cellular indicates traffic, interfered less with the free flow of adopted because it thoroughfares, hazards on main and re- minimized the improvement expense. peti- land dedication and duced participate and the lot owners the subdivision will tioner savings by in these benefits and the selection of and adherence design. particular petitioner In fact no makes design objection to that It is to be assumed that he such. resulting savings But he prefers it with land cost. compensation seeks addition for the fulfillment of the type feasible. conditions which make this of lot subdivision apply southerly Similar observations to the dedication of *9 petitioner reasonably be re- triangle. tip of The could improvement quired and provide to dedication through pro- Seventy-ninth the tract extension Street subdivision, and turning and vide safe for traffic to incidentally practically as a traffic hazard the eliminate by the tip. nothing remainder of He lost useless has requirement being for dedication and relieved is benefited improvement. justifiable the burden The conclusion is and planting strips the elimination of tip design improve- the hazardous much part are as a ment within the subdivision as would the lateral and service regular transverse roads lanes had the or non- design cellular been selected.
Questions necessity of reasonableness and depend on They fact. are not abstract or In matters of ideas theories. metropolitan growing area each additional adds a subdivision - n -v burden. is no defense to the im- to the traffic conditions map proceeding subdivision posed in a that their fulfillment incidentally also benefit the a will as Nor is whole. it objection say that contemplate a valid fu conditions more as immediate ture as well needs. Potential as well as affecting present population factors the subdivision and the generally neighborhood appropriate are for consideration. plans the fact that master Nor does incomplete, are or that specific details are not thereon, shown affect the result. in It was evidence that working had been toward complete master plan, although formulation entire orparts , thereof yet all were not the elements in final completion.'' ¿\ stage require- contention that plan or a master some plan ments for over-all ap must be proved adopted authority before vests in relation to the here without conditions merit since in event portions contemplates that the charter thereof adopted. plan that a master including It is inconceivable all essential growing city could be completed factors in period a short correctly of time. The trial court delay concluded that plan adoption plans the final master had no material bearing on controversial issues in proceeding. this reasonableness conditions and authority impose „ necessarily depend them do upon their inclusion plan official master district. noted, As design improvement obviously include conformance to neighborhood planning and zoning, and it properly said the formulation and acceptance of uniform development of the district constitute the
conditions
requirements
practical adoption
plan
zoning
of a master
Nor
petitioner’s
therefor.
is there
conten
merit
lacking
plan
discrep
tion
a uniform
because
some
uniformity
delays in
ancies in
or fulfillment
enforcement
requisites
Time,
conditions.
funds and
are
manpower
speed
execution,
accomplishment,
lack of
some
*10
changes
differing
because of
use or other
circumstances as to
defeat
wise, cannot
uniform and reasonable
otherwise
community.
in
application
growing
of the
conditions
a
prevail
that,
not
in his contention
petitioner
was contem
purposes
the land for
stated
use of
since the
reservation re
event, the dedication and use
in
plated
are
as an exer
proceeding
in this
unconstitutional
quirements
domain. A
answer is
sufficient
power
eminent
cise of the
in eminent do
here involved
not one
proceeding
city seeking
power.
to exercise
It is the
that
nor is
main
acquire
advantages
of lot
petitioner
seeking
who is
duty
upon
compliance
him rests the
subdivision
design, dedication,
improvement
conditions
reasonable
safety
as to
use of the land so
conform to
and restrictive
in
the lot owners
the subdivision and
general
welfare of
in
well-considered observations
public.
of the
Mansfield
Orange,
225],
120
A.
Town West
N.J.L. 145
&
v.
Swett
[198
in
involving
proceeding,
pertinent
a subdivision
are
this
also
recognized
The court there
the distinction be
connection.
sovereign power
of eminent domain
tween the exercise
nature of
noncompensatory
reasonable restrictions in
and the
they
good
yield
when
respect
private
interests
must
community.
apply
principles
That these
map proceedings is also
demonstrated
the cases
City
Land
v.
at 71 L.Ed. 114, S.Ct. it was observed 387 303] [47
43 validity regulations, wisdom, necessity of which they existing apparent applied as conditions were so uniformly sustained, probably are now would have been century rejected arbitrary oppressive as even a half century ago; meaning guar that while the of constitutional scope invariable, application anties is of their must ex pand changes physical or contract which are meet constantly coming operation; within the field of their regulations clearly those must fall which do not meaning changing meet the constitutional applied to con expressions ditions. Similar are in Miller Board found v. Works, Public 195 477, 381, Cal. 484-485 P. 38 A.L.R. [234 of 1479] ; Zahn Works, 497, v. Board Public Cal. P. ; Dwyer City Council, v. [234 Cal. 388] P. (1927). Supreme These declarations [253 932] Court of the United States and of this than 20 state more years ago are pertinent also uphold this case to the con clusions of reasonableness based on the record.
No sufficient reasons been have advanced which would justify this overturning court in findings of the trial court authority as to the for and the reasonableness of the imposed. conditions *11 judgment is affirmed.
Gibson, J.,C. Edmonds, J., Traynor, J., Spence, J., concurred.
CARTER, J. I dissent. Inasmuch as it has been majority concluded conditions validly here involved were under police power, necessary it becomes appellant’s to discuss con- tention imposed (with that exception conditions 3) condition No. constitute an exercise of the of emi- disguised police nent domain power. as the I First, point like proposed projec- would out that the Seventy-ninth (which tion of Street would leave an isolated tip triangle proposed on subdivision) has been aban- triangle doned. is this appellant which it is purposes (condition 2). dedicate for street No. The trial court found that “since the action, institution of said projection Seventy-ninth easterly location ánd Street an Sepulveda direction in and to changed Boulevard has been so present that at the plan City time the Angeles of Los regard projection Seventy-ninth to the Street is to 44 point
project Sepulveda said street into Boulevard at a south tip same will not of said tract so that the intersect said any portion tract or thereof
If the Subdivision Act is construed to mean that the city planning may require commission a dedication of land already improve pro- streets in existence from one who poses map may approved to subdivide before his tentative recorded, regardless of the fact that there is no ordinance my requiring dedication, position then it is such such a procedure nothing taking appellant’s prop- is more than a erty my making compensation posi- therefor. It is without also, tion, that such a construction flies in the face of the express (§ Code), 11551 Bus. & Prof. words of statute doing, majority opened have door so to the question constitutionality. question presented then goes beyond police is whether the dedication power and the field of eminent domain. enters Angeles County Flood Dist., v. Los Control
In House
950],
384, 388
P.2d
this court said: “While the
Cal.2d
[153
concept,
very
broad
it is not without
police power
re
taking
damaging
property.
in relation
striction
beyond proper
passes
prop
bounds
its invasion of
When it
purview
erty rights, it in effect comes within
of the law of
requires compensation. (Varney
and its exercise
eminent domain
Williams,
867,
So far though purpose promote their however, even be to and insure safety convenience, right the state to payment “just” “private property” without the com take expressly forbidden both the pensation, has been eminent process provision of the state Constitution and the due domain Amendment to the the Fourteenth Constitution of clause of (Cal. I, §14; Chicago, Const., art. States. the United Q. Chicago, v. 166 U.S. S.Ct. L.Ed. B. & R. Co. [17 provisions, (or Obviously, these if the state its 979].) under *12 public use, appropriates the land itself for a subdivisions) power correspond with a exercising its of eminent domain isit ing liability pay owner the value of the land. widening strip majority say that the 10-foot needed (condition 1) necessary No. Sepulveda Boulevard safety protection public health,
reasonably related to the
45 In & Swett v. Town West welfare. Mansfield incidentally, 225], is, Orange, N.J.L. A. [198 relating subdivisions, theory very few this one of the cases expressly exploded. we think increased “Nor do objection develop traffic hazards constitute a valid will argument ment. It a sound that the subdivision is not thereby dwellers, the volume attract additional increase supervision. police of traffic and additional create need for municipal growth. These are mere incidents of developments, safeguards, if surrounded reasonable will plainly not create abnormal traffic hazards inimical to the ’’ public Angeles County welfare. And House v. Los Flood Dist., supra, Curtis, speaking Control Mr. for the Justice majority court, recognized of this said: “Thus there is in police proposition power, contestable that the exercise of the though sovereignty an essential attribute public arbitrary nature, beyond in its welfare cannot extend destroy necessities case and be made a cloak to constitu rights private tional property.” as inviolateness of Control, if In Bacich v. Board 343, Cal.2d at 351 [144 P.2d . it is spite : “. . said that in policy that so-called 818] ignore ‘the cannot principles courts sound and settled of law safeguarding rights property of individuals. This great [improvement] be of the public convenience to generally, properties but the abutting ought owners not order it’; and, quoting sacrificed in Sedg secure from ‘ wick tendency system on Constitutional Law: The under our is too often to sacrifice the individual to the community; and very why it seems difficult in reason to show the State should pay property destroys not which it impairs the value, physically (Liddick well as for what it City takes. . . . v. Bluffs, Council Iowa 197 N.W.2d 372, 382]). [5 degree “In opposed policies some those are manifested in the conflict compen- between constitutional mandate paid private sation be property when is taken damaged public purpose police exercise where com- pensation paid. not be need The line between those two con- cepts clearly is far appear marked. ... It does not emergency compelling necessity its payment compensation construction without for prop- erty damaged. escape Therefore pay- the State compensation police power.” ment under the [Emphasis added.]
46 in majority say prevail not his petitioner
The purposes that, contention use the land for since the and use any event, dedication contemplated stated was in requirements proceeding are unconstitu- reservation in this “A tional as of eminent domain. an exercise of the proceeding majority] [say sufficient answer is the here domain nor involved is not one eminent seeking Why is this a sufficient power.” to exercise that precluded answer? a determination of Is a to be from court disobeyed been whether or not constitutional mandates have proceeding takes? It would seem that because of the form imposed because said to have been the conditions were from precluded police power under the this court should determining such was the case. whether or not of Mansfield rely on “well-considered” cases majority supra, Ridgefield Orange, Town West v. & Swett ; N.W. City Detroit, 241 Mich. Land Co. v. [217 58] Co., 201 S.W.2d Ark. v. Sec. 311]. Newton [148 American applicable particularly not ease, which is Mansfield In city planning great deal said to effect here, is a there quarrel I with that power. have no police exercise of is an distinguishable of that ease are The facts statement. There, proposed subdi under consideration. here those this lot was under consideration. On lot vision of a 4%-acre proposed to subdivider manor house which the an old was proposition homes. This in a number of destroy build reasons, planning board for several disapproved was surrounding own property fact that the among was the existing it would not conform approve; not ers did hazards, traffic would increase area; that it conditions municipality burden of upon the hazards, place fire traffic, and supervision of policing and additional additional general wel safety, health interfere that it would these that none of community. The court held fare in the planning done as an exercise in that were valid objections public. for the benefit police power and support Company Newton cases Ridgefield Land reasoning much majority, leaves but the taken the view majority. adjective applied desired, despite the to be least, theory “In at case, it was said: Ridgefield In the land voluntarily sufficient dedicates of a subdivision owner hav- privilege advantage streets return authority proposition, As for this plat recorded.” ing his Goodfellow, App.D.C. S. ex. rel. cites Ross v. U. the courts to the effect that: “It must be remembered that each owner right lay has the undoubted off his land manner pleases, it all. He cannot be that he to subdivide at public. public streets If made to dedicate and avenues to necessity parts highways, demands of his land for it can be payment taken of its value. But condemnation corresponding right plat he has of subdivision no to have his so made admitted to the records. providing Congress accompany
“In can *14 record privilege applicable alike conditions and limitations persons. providing to In in all for such record the Act (25 451) Congress sought public Stats. to subserve the by conformity requiring practical interest and convenience avenues, in all squares, subdivisions of land into streets and general plan originally established, with the this, regardless might, instances, in fact that it practically coerce the use dedication of streets which ’’ paid would otherwise have to be for. particularly
The word “coerce” is applicable in the case (Bus. Code) under consideration. Section 11538 & Prof. provides: any person sell, “It is unlawful for to offer to any any contract part to sell or to sell subdivision or thereof until map survey map a final or record of thereof full com- pliance with provisions chapter any of this local ordi- duly nance has been or office recorded filed in the county any recorder of portion in which of the subdivision is provides: “Conveyances any located.” Section 11539 part of a number, subdivision shall not be made lot or block or designation, map initial other unless and until a final has been “Any recorded.” Section sell, 11541: offer to contract contrary chapter to sell or sale provisions to the of this is misdemeanor, a person, firm, corporation, upon or thereof, conviction punishable by shall be a fine of not less twenty-five than ($25) dollars and not more than five hundred ($500), imprisonment county jail period dollars or for a months, impris- not more than six fine and or both such ’’ onment. upon by majority (Mansfield In the three cases relied Orange, Ridgefield & Swett v. Town Land supra; West Co. City Detroit, Co., v. supra, and Newton American Sec. v. supra), only penalty provided it would seem for in approved the event that subdivision was plat was that the could do not not be recorded. These cases contemplated by both, as imprisonment, involve a fine or or Map Act. placed upon the Subdivision The construction majority telling has the effect of subdivider privilege of record- he dedicate land to the ing privilege, right, but a selling—a matter which is not a go idle, go it and situations, other or let the land or sell This, appears me, amounts to a jail, pay fine, a or both. it type practice form of duress that is reminiscent of the great prevailed country prior the last war. another Angeles, City It is true v. Los 19 Cal.2d that Archer “The 19, 23, 1], majority said: P.2d of this court [119 damage private prop- state or its subdivisions take or erty compensation if to safe- without such action essential In guard public safety, [Citing morals. health, eases]. taking damaging of circumstances, however, certain private purpose prompted so property for such a is not compensa- great necessity justified proper without as to be liability of [Citing tion to the the state owner. cases]. arises the California Constitution I, under article section not so taking damaging private property when essential sanctioned under welfare as to be ‘police power’ injury is one that would [citing cases], and the inde- give part of the owner rise to a cause of action on the [Citing *15 pendently provision.” of the constitutional cases.] disagree positively I This is with which a doctrine of stateism my opinion in that case. appears dissenting "police or not the test of whether Manifestly, correct has been is not and never properly exercised been power has appropriate it must be necessity. To be public of degree We safety, morals, welfare. health, or public for the degree public of neces But if the agree upon that. should all just com guarantee of the constitutional test, then sity be the completely public use is for a property for taken pensation body public that legislative finds a abrogated. and forever If highways, for taking property for of requires the necessity hospi areas, for supply, for recreational a water streets, for myriad for a of buildings, or public or other tals, for schools finding accept such a must the courts purposes, public other necessary finding is is all If a such as conclusive. there will be no police power, exercise warrant paying for agency ever public or other for the state occasion improve damaged public for or a taken property any private schools, highways, say property Who ment. absolutely necessary proper func streets, etc., is not indispensable tioning government? Indeed, it is an power eminent domain where factor in the exercise of the of compensation payable, public is convenience any necessity taking damaging private of demand the or contemplated. property public improvement involved Thus, theory majority opinion, in under the advanced in the properly case that the of eminent domain exercised, police power with the could also be invoked could; compensation Although result that no be recovered. it is dividing difficult to charter the line between the exercise powers, police power operates the two it should be said that field regulation, except possibly some cases of public emergency, fire, such as a where buildings may be destroyed, rather taking property than in the for some public improvement. “But legislature the moment the passes beyond regulation, mere attempts deprive the indi vidual of property, his or of some therein, substantial interest pretense under of regulation, then the act becomes one of eminent domain, subject obligations and is to the and limita tions which attend an power. exercise of that . . . Under the [police one power], public welfare is prompted [sic] by regulation restricting enjoyment use prop erty by the owner; under the other domain], the [eminent public promoted welfare tailing property .from owner and appropriating particular (Yol. it to some I, use.” Lewis, Eminent (3d ed.), Domain 6, p. 14.) § City Angeles, In Beals v. Los Cal.2d 387 [144 839], Gibson, speaking P.2d Chief Justice majority court, agree, this “We however, plaintiff’s said: conten complaint tion that the states a cause of Closing action. alley taking damaging results in the private prop erty public for a use. It is settled that the ascertainment and damages payment precedent condition right public destroy do work damage which will private property. obligation compensa to make cited.] [Cases from the provision tion arises constitutional that ‘Private property damaged shall not be taken or use with just compensation having out first been to, paid made into for, (Cal. court the owner . . Const., I, . art. 14.) Bigelow In § *16 Ballerino, 559, v. 111 564 307], Cal. P. which also involved [44 alley, the vacation of an it is that, stated ‘The constitutional rights private property of an owner of sought which is to be damaged public right taken use are two: 1. The 50 right compensation
compensation; and 2. The to have that in- paid property into before his is taken or made or court property owner rest secure in juriously affected . . . him that his protection which the constitution affords damaged compensation property shall not he taken or without upon him to demand that made. It is not incumbent first duty respect rights; his is theirs to work authorities shall ” [Emphasis unlawful invasion of them.’ no added.] 799], Ricciardi, P.2d People In 23 Cal.2d 397 v. [144 court, Shenk, speaking majority of this Mr. Justice abutting ‘An owner has the settled law that said: also “It highway, public right which he rights kinds of a a two private enjoys citizens, and certain in common with all other contiguous ownership property rights which arise from his public gen highway, and which not common to are highway has abutting public a erally; . . An landowner on . road for right and user special a of easement right purposes, property is a which cannot access and this ’’ away compensation. him damaged from without due or taken ’ yet, now holds that certain land And this same court 7 improvement of an exist property owner for be taken a property just wishes to subdivide his ing street because he build a house for himself adjacent If he chooses to thereto. city require solitary splendor, could the and live there in widening purposes, or would it street dedication of land for compensation ? if he chooses pay just him What widening Sepul proposed plan and the not to subdivide goes through ? veda Boulevard street space for vehicle traffic a widening of the highway strip by adding the street or highway,
or other
clearly gives the
abutting property owner,
owner
land of an
.
County
896;
v.
(55
Fulton
compensation
A.L.R.
right
County
York,
Terrell
614
Amorous, 89
S.E.
Ga.
v.
201];
[16
Grape
Co.,
;
v. Welch
Juice
Watkins
166
S.E.
127 Ga.
309]
[56
Henderson, 27
47]; Peckham v.
114
N.Y.S.
App.Div.
96
[89
Quantz
Concord, 150
S.E.
207;
v.
N.C.
(N.Y.)
[64
Barb.
v.
(Pa.),
499; Barnhart
11 Phila.
Avenue
433]; Re Girard
; Dow
Rapids,
Mich. 90
N.W.
City
Grand
[211
96]
92];
N.W.
City
Paul, 117 Minn.
v.
St.
Arneson Co.
[225
City
;
Ala.
County, 241
So.2d
Mobile
405]
v.
[2
Sherlock
207].)
Hatcher,
51 opinion majority in object following the statement the I to sub noted, in settled law: “As and conflict with as unsound obviously include conform design improvement division may prop zoning, neighborhood planning and and it ance to acceptance the erly be said uniform of formulation constitute development of the district conditions in the require adoption plan zoning practical a master the of authority No is cited [Emphasis ments therefor.” added.] contrary directly to one amazing for this statement which City etc. by case of Kleiber v. made the same author in the of act “The Francisco, 718, San 18 724 P.2d : Cal.2d [117 657] 2 p. 9; 1938, Authorities Ex. [Housing Law; Stats. Sess. powers, Peering’s Laws, prescribed also the Gen. Act 3483] authority city in car obligations the duties and of salutary Every necessary legislative rying purposes. its out completed by nothing left legislature. act was the There except cities, Governing law. bodies of do administer the perform legislative and counties, or cities and counties both ordinarily executive or acts. The former is administrative performed by by latter resolu ordinance; the be done city advantages steps by gain to be tion. The taken the the by law facts, afforded the are in the ascertainment gain advantages are administrative character. To those city proceed specified must manner Fur the in the in the act. thermore, authority since statute is the under city may subject act in premises, matter of concern, city is more the action than local is bound proceed [Emphasis accordance therewith. added.] Planning Act 1929 eh. (Stats. as amended 5211b, 665, p. 1817; Peering’s Laws, ed., Gen. by p. 1768) provides adoption city master of a portions city Los plan, or thereof. The charter of the Angeles provides preparation plan a master by city plan- portions planning thereof director and the adoption by city ning commission thereof (art. Ill, §21) also “All provides The charter council. power city except pro- as legislative herein otherwise by and shall be ordi- is vested Council exercised vided Mayor power approval by subject of veto or nance, by herein set forth. action Council as Other resolution, upon motion.” order or
j/J city—laying seem that the control streets It would etc.,—is power by widening, legislative delegated out, McQuillin, Municipal Corporations, p. Kellogg (4 73; state. Sherrill, 418].) v. App. 169 N.E. And that Ohio [156 plan proposed by planning for such streets commission city adopted must established ordinance council provided hy as charter. McQuillin, speaking city planning, say: has this to “Manifestly part all action on the this, as in other respects, must be sanctioned the law. No can be exerted officers, its necessary citizens however proceeds desirable unless it legislative authority consis- with organic legal tent provisions, national and Inas- state. city planning much therefore zoning involves interfer- *18 rights ence more or with less the persons of property and of path along city safely may move in this enter- prise should known, otherwise difficulties and failures are If certain. under the as law it now stands obstacles inter-
pose they may be removed knowledge city’s political of the legal status, and its and the source and construction thereof, including, course, of judicial relating decisions point thereto which purpose out the guaran- of constitutional rights persons tees of property of rights as such at exist of time action, they be restricted response public insistent requirements reasonable by the particular community part or the thereof (1 involved.” Mc- Quillin, Municipal Corporations (2d ed.), p. 354.) applicable requirement arguments same are
The strip 4) of a 10-foot of land for (condition No. tree shrub Map purposes. contemplate Act planting does not a imposition align- such condition. act refers to of street widths, easements, rights way grades, drainage ment, sewers, width, lot sanitary work, minimum area and street ways. utilities, public Assuming highways this is analogous line requirement to a set-back and that the a direc- impose authorized planning ordinance to tor of in the health, safety, condition interests such a providing, no ordinance so etc., is still and there is no there Map Act. As this court said in provision such city ease, supra, proceed must in the manner “the Kleiber ...” specified in the act majority in the inter- agree with the of this court
I cannot (Bus. Code, Map & Prof. Act pretation of the Subdivision interpretation seq.) local 11500 et § my In at hand. applicable to the facts ordinance which construed and the ordinance should be opinion, the statutes ' set forth. the manner hereinafter portions interpretation case This involves (Bus. California & Code, Subdivision Prof. § city seq.), Angeles, et certain ordinances of the Los validity city employed respondent the methods in ad- ministering the same. subdivider, Angeles pursuant a Sub-
Appellant, Los of the city, certain ordinances submit- Map Act and division Angeles department of Los planning ted to the a map of 13-acre tract what tentative to as the Westchester District. After generally referred respondent adopted council of rec- investigation, the planning imposed upon ommendation of its commission precedent approval appellant a number of conditions sought Appellant of mandate in map. writ the trial require respondent city approve map court without conditions; following four imposition (1) appellant strip 10 along That dedicate a feet wide widening Sepulveda front of his tract for the Boulevard on abuts; which his subdivision
(2) appellant purposes That dedicate for street the tri- angular southerly point tip subdivision; of his
(3) appellant strip That dedicate a rather than 60 feet in width for 77th Street which traverses the subdivision; and
(4) appellant That set a strip aside of land 10 feet width in addition to the feet needed for the boule- vard the planting shrubbery. trees and *19 four
These conditions were held the trial court to have validly been precedent as a condition to approval map. of the subdivision (1) contends:
Appellant Planning That the State Act of (Stats. 1929, p. 1805, Deering’s 1929 as amended Laws, Gen. 1768) is 5211b, p. applicable city Act of Los Angeles, respondent had neither and that conformed to its provisions, provisions Angeles of City the the nor to Los Charter requir- (2) ing plan; proper a master That the construction of the Map permit Act did imposition Subdivision not the of condi- (2), (4), (1), proper tions and or if a construction did so permit, act is imposition unconstitutional of such conditions constituted an exercise of the of eminent domain compensation without guise under the of the police power. VIII of charter city Angeles
Article of the of Los city a (providing department planning) provides for of under the department shall he thereof that the section 94% planning. management of Section of director control and ‘ Planning] make Director 95g provides that of shall He [the improvement of design and investigations report and on powers have such proposed subdivisions of land and shall all such are perform and duties as Subdivision Map [Emphasis Act State added.] of California.” (Bus. Code, supra) pro- & Prof. Subdivision or asso- any firm, corporation, partnership person, vides that him- subdivision for ciation, causing land to be divided into a comply with formalities. Such self or for shall certain others body governing prepare present must and subdivider county of the map” particular or “tentative in and around proposed existing and the conditions subdivision map comply provisions the act and it. This must with body any passed governing local ordinance of city any county. provides or it is unlawful also any sub- person sell, offer to contract to sell or sell any part until division or thereof subdivision approved map has been and a thereof recorded. 11506: provides: Code Section Business Professions
“ regulating the ‘Local an ordinance’ refers to ordinance design improvement gov- subdivisions, enacted erning body any county provisions under statute, design this chapter prior regulating improvement subdivisions, provisions so far as ordinance are with and consistent conflict provisions chapter.” of this “ grades ‘Design’ alignment, refers 11510: to street Section alignment right widths, and widths easements ways drainage sanitary sewers and minimum lot area ’’ and width. “ 11511: ‘Improvement’ refers to street Section such installed, agreed installed, utilities to be work and to be by the on subdivider the land dedicated or to be dedicated highways, streets, public ways, easements, as are nec- essary use of the lot owners neighborhood drainage and local traffic and needs, as a con- precedent approval dition acceptance final map thereof.”
Section 11551: “In there ordinance, case is a local *20 comply provisions map subdivider shall with its before the maps of a approved. subdivision In case there ordinance, body governing may, is no local as a condition map maps approval a subdivi- precedent to the drainage ways sion, require properly located and streets adequate width, requirements.” but no other make by 81815, Nos. 79310 as amended ordinances Ordinance No. time submitted appellant was in effect at the and 85666 here map subdivision involved. proposed plan primary master There evidence was admitted by city approved been secondary which had streets Sepulveda planning is no doubt that commission. There “primary within street” classification. Boulevard falls adopted city council plan had not been This master testimony following excerpt ordinance from the at as planning for the Bennett, the trial shows. Mr. director of city Angeles testifying after it was 1941, Los since that proper procedure adopt for the council to ordi- any zoning map answered text, questioned, nance as follows: ‘‘Question: Y, proposed And Exhibit which is the master plan Angeles, of traffic of Los has that arteries adopted by been the Council ? r‘1 No, Answer: sir. " Question: Either resolution or ordinance ? No,
“Answer: sir.” (No. respect With condition on supra) purpose widening Sepulveda Boulevard, concededly primary street, upon appellant’s abuts, the provision. ordinance makes no applicable sec- provides tion “all practicable streets far as shall be in alignment existing adjacent, connecting and surround- ing provide It does streets.” that the subdivider must portion of property dedicate a his for the purpose widening adjacent an street. provides Subdivision (and in case no local there is local ordinance ordinance refers “design and improvement”), governing body may re- quire properly that streets located adequate width, and of “may no requirements.” but make other [Emphasis added.] (Bus. Code, 11551.) & Prof. A reasonable construction of § appear this section body may would to be the governing require comply the subdivider to with the conditions as to width and location streets within his subdivision. makes provision proposed no adjacent existing streets. No. 4 Condition deals with a dedication setting aside of an strip additional 10-foot planting for tree purposes. Again, neither the ordinance involved, here nor *21 any provision Act makes for this. It would
the Subdivision invalidly and im- appear that 4 were therefore conditions posed Map applicable under the Act and the Subdivision ordinance. proposed
Condition No. 2 involves the dedication southerly triangular tip of plaintiff’s proposed subdivision purposes. for at apparent street the record that It point tip this meet, or main Arizona Street two traffic arteries westerly appellant’s Sepulveda on the and side of subdivison easterly engi- Dorsey, Boulevard on Mr. the traffic the side. necessary neer, point testified the elimination of was that to reduce the at that He stated traffic hazards intersection. engineering that traffic involved the two fundamentals of points were reduction of conflict where flow of street, traffic on one on other street intersects that brought that traffic as to a movements should close right possible. angle respondents as But forth in their brief set widening purpose that condition Street, either or It is Sepulveda Boulevard or Arizona both. perceive difficult to how either both of streets dangerous point. And, again, would eliminate the so-called Map makes neither the ordinance nor the Subdivision Act provision widening existing connecting or sur- adjacent, rounding streets. specific lim- majority say “no that since restriction Charter, city’s is contained on the
itation forbidding particular conditions is included either none city ordinances, proper Map Act or the it is in the Subdivision incon- lawful which are not that conditions are to conclude Act ordinances and are reason- Map and the with sistent type use as related to ably required the subdivision^ neighborhood planning and traffic of local and the character “design improve- refers to The charter conditions.” The Subdivision proposed subdivisions.” ment all “design and regulating local ordinances provides body governing may be enacted improvement” “design improvement” are county, the words can how it be said by It is inconceivable act. defined act these words in the two use the consistent upon the conditions place a restriction charter do in- very legislative clear that imposed. It seems uniformity planning in subdivision provide tent was size, set- drainage facilities, lot streets, ways, respect to subdivision, like within the and the back lines contemplated that it was not that the would widen its existing highways expense property at the owner. say no answer to complain subdivider cannot be- improvement cause he is not to make the as well defining dedicate the land. Since “improve- the section expressly ment” is limited to mean the street work and utili- ties be installed the subdivider on land dedicated for necessary such streets as are for the use of the lot owners neighborhood and local traffic, Legislature must have intended that the subdivider was to dedicate land streets within his subdivision. It cannot be contended seri- ously by anyone Legislature intended the subdivider *22 improve, at his expense, highway own Sep- state such as Boulevard, ulveda and a street such as Arizona. provides
The charter planning that of director shall such imposed have other duties upon by as are him ordinance.
Assuming that the could, by council Map ordinance under the Act, place upon the duty requiring director the dedica- property by tion of subdividers for the purpose existing streets, the fact remains that there is no such ordi- nance in existence. Angeles City
The Los provides Charter that the director planning powers perform shall have such such duties required by as are Map the Subdivision Act of the State of California, and in “addition foregoing, to the he shall have powers such additional may duties as imposed upon him ordinance.” Section provides 97 of the charter that adopted no ordinance shall be appertaining to certain mat- approved by ters unless planning Among commission. those enumerated matters are forth following: set “The acquisition, establishing, opening, widening, narrowing, straightening any public ... street, road, highway . . .” Thus it would seem that although planning commission approve, must it was the clear intent that such matters should be covered ordinance. It would appear, therefore, that invalidly No. 2 imposed condition was under applicable laws force. respect
With to condition appellant No. dedicate strip land 80 rather than 60 feet in width for the widen- ing 77th Street which traverses the subdivision, appellant concedes in his brief that it “necessary is a street for general use of the lot owners the subdivision and local neighborhood (Bus. traffic.” & Code, §11511.) Prof. Prom appears the record it imposed this condition bring alignment with of 77th Street' into extension existing portion westerly side of Arizona 77th Street on the Street, provision and thus the ordinance as within the alignment previously forth, set be in that all streets shall existing, properly with connecting streets, it was and that (Bus. under & Map both the Act Prof. Subdivision Code, 11551) Appellant’s applicable ordinance. § respect contention this con- imposition with dition is that the width is “unreasonable.” It subdivisions, acting without merit. political and its state public the interest of health, safety, make welfare requirements. apparent reasonable record requirement that the than of a width of 80 feet rather feet for appellant’s proposed 77th Street which traverses requirement arbitrary is not an unreasonable safety interests of This condi- and welfare. type tion is of Act. contemplated the Subdivision provisions the Los An- Appellant’s contentions (2 Planning of 1929 Deer- geles City Charter and the state Act 5211b, amended) requiring a Laws, master ing’s Gen. Act general, no complied been that there was plan had not charter, without merit. The sec- complete, plan over-all are ” part provides plan a “master tion 96[4 thereof Planning (assuming adopted without the state city) “The master deciding applicable that it is that: maps, charts, descrip- accompanying diagrams, plan, with the following reports matter and shall include such of the tive appropriate subjects portions matter as are *23 [sic] thereof county region. appear would city, ...” Thus it plan, its en- legislative did not intend that a both bodies tirety, necessary particular time. A was to be at one plan include its for a would plan building subdivisions, systems their lines or set- street many things necessary well-developed backs, but for a other community. seriously nor it contended cannot magnitude accomplished a work of such could intended overnight. would, judgment and direct the therefore,
I reverse the directing approval of mandate trial court to issue a writ subject proposed map compliance with condition 3 hereinabove set forth. No. J.,
Schauer, concurred.