*1 Dist., No. 33517. First Div. One. Apr. [Civ. 1976.] ELDRIDGE,
DONALD F. Plaintiff and Appellant, ALTO, CITY OF PALO Defendant and Respondent. Dist., No. 34134. First Div. One. Apr.
[Civ. 1976.] BEYER, JR., “J” HARRY Plaintiff and Appellant, al., CITY OF PALO ALTO et Defendants and Respondents.
Counsel Nowinski, Cliff, Nowinski, Crist, Crist, & Frank B. Peter A. Cliff Schulz, Crist, Griffiths, Jr., Lee & Frank and Chilton H. Lee for Bryant Plaintiffs and Appellants. Marvin G. McKittrick, Bums, Pollock, Rolston, Bums &
Fulop, Pollock, V. and John Williams & John P. Charles Berwanger, Berwanger of Plaintiffs and T. Harris as Amici Curiae on behalf Appellants. Jackson, Mulcare, Jr., Turner & Booth, K. Robert Attorney, Smith, Mulcare, Atkinson, & Turner, J. Ronald J. Farasyn William Dok, Vatuone, Fred Atkinson, & Smith Caploe, Farasyn, Caploe, Daiker, E. Matteoni for Defendants & and Norman Randall Biyant Respondents. Shute, General, E.
Evelle J. Carl Clement Younger, Attorney Boronkay, C. Jr., General, and Richard Assistant Nicholas' C. Yost Attorneys Fenton, General, I. John B. Jacobs, Matheny Attorneys Harry Deputy Connor, Jr., of Defendant J. as Amici Curiae on behalf Edward Respondent.
Opinion
ELKINGTON, J. with similar matter and subject These appeals, issues, have been consolidated for the of our consideration and purpose of them. disposition owners, of 750
Plaintiffs were Eldridge Beyer respectively, and 22.27 land in foothills acres acres of generally unimproved *5 The of Palo Alto had enacted (hereafter City “City”). City zoning which, their ordinances other classified among things, property and conservation lands.” open “permanent space
Plaintiff thereafter an commenced action and its Beyer against City alia, council and council members. The inter that the complaint alleged, effect of the ordinances was and means unreasonably, arbitrarily, I, of excess and in contravention the state Constitution (art. regulation 14) former federal Amends.), Constitution 14th take (5th § his for use without him therefor. damage compensating alternative, or, He for in in the inverse condemnation damages prayed and void as that the ordinances be declared unconstitutional “illegal, applied property.” [his] similar also filed a with
Plaintiff complaint allegations, Eldridge him, however, was The relief alone. sought by only against condemnation; he conceded the ordinances’ in inverse validity. each of demurrers in court sustained the general City’s superior amend and, denied leave to the actions over complaints. objection, which has from a Each of the judgment plaintiffs appealed his action. thereafter entered dismissing
A is a ordinance preliminary question presented. May zoning operate so affected owners toas oppressively upon require payment Or, in an action for case, inverse condemnation? such compensation is ordinance, landowner’s sole an action invalidate the at remedy himself, least as to on constitutional or other It will seen be grounds? if the latter exclusive stated remedy, Eldridge’s complaint action, no cause of as did it insofar as plaintiff Beyer’s sought damages inverse condemnation.
The United States Court discussed this Supreme tersely subject 322, 326, v. Penna. Coal Co. Mahon 260 U.S. L.Ed. is, S.Ct. 28 A.L.R. It said: at 1321], “The rule least that while general extent, be to a certain too it property may regulated regulation goes if far ” bewill as a (Italics added.) taking. recognized More court in same Goldblatt recently Hempstead Mahon, U.S. 590 S.Ct. L.Ed.2d Penna. Coal Co. v. 987], citing held that “the form of be so onerous as to regulation [can] constitute á (Italics taking constitutionally requires compensation.” added.)
No
of this
on
state’s
Court
is to
express holding
Supreme
subject
be found. But nevertheless the
decisions
that court bear
following
upon
problem.
Whittier
P.2d “de facto the court declared 46) Discussing 1345]. taking (p. that before such a results there must a invasion or “taking ‘physical direct restraint. . . .’ One of a restraint’ discussed in legal example ‘legal been several California cases has harsh regulation, particularly *6 valid, ...” This recital must that a but mean reasonably particularly harsh, rise in inverse condemna regulation may give zoning damages tion, for if the were invalid it could no effect have rise regulation giving to such damages.
HFH, Ltd. v. Court Cal.3d 508 Cal.Rptr. [125 542 P.2d case inverse condemnation that petitioners sought 237]. from a ordinance which damages down-zoning drastically resulting value, their market but nevertheless allowed a reduced property’s 516, fn. substantial and reasonable beneficial use. 13) urged They (p. “that the was the in reduction market value injuiy constituting taking action, of the land.” The their court found the dismissal of high upon of a demurrer to their to have been It was sustaining complaint, proper. made clear the court 514) on (p. ruling predicated where the ordinance’s effect awas pleadings zoning “only alleged in diminution the market value In such a question.” case there would be no ator least no injury legal compensable injury. But the court held fn. “If such a 13): reduction an constituted (p. it would occur action injury, regardless legality zoning if, ...” (Italics ours.) occasioning California’s has also that an Legislature recognized unreasonably ordinance, valid, drastic otherwise open-space zoning although may result a Code, (Gov. therefor.” taking requiring “just compensation § 65912.)
And the
Court
state’s
has
reached similar
Appeal
frequently
conclusions.
Aaron
Los
Angeles
Cal.App.3d
Cal.Rptr.
den.,
court affirmed a the defendant judgment holding condemnation, for inverse occasioned excessive aircraft noise from jet a Relied were several “California municipally operated airport. upon cases restrictions intended to facilitate the [holding] opera tion of an and to to it airport constitute protect approaches (P. 481.) taking property.” Gisler v. Madera County “In certain factual situations it is difficult to draw
Cal.Rptr. 919]. line between a from the precise noncompensable injury resulting enactment of a valid under [zoning] regulation police power which are the limits of the regulations beyond [citations] [such] and can as a under police only power justified ‘taking’ power domain eminent which requires just compensation [citations].” ex rel. Pub. v.Wks. Pac. Southern Trans. Co. (1973) People Dept. “A Here the court stated: 525]. *7 restriction value with a view to future eminent zoning imposed depress domain itself creates cause of action inverse condemna- proceedings tion the unit the ordinance. against governmental enacting zoning The restriction be invalidated attack.” a direct zoning [Citations.] 620 Turner v. Del Norte County Cal.App.3d the 93], conclusion that the ordinance is valid
Cal.Rptr. “Despite zoning as a reasonable exercise of would still be police power, appellants entitled to if there was a of their compensation taking property.” 845, Peacock v. Sacramento County of “ A lands ordinance ‘applied plaintiffs’ zoning 391]. ” or use substantial beneficial thereof.’ [deprived practical, them] for in inverse condemnation was A the county damages judgment against affirmed. 205, 212 Riverside Sneed v. County court no fault in an inverse condemnation found
Cal.Rptr. 318]. which has invaded-the action where it was the “county alleged property does not and in thereto plaintiff challenge rights response plaintiff, in inverse but seeks ordinance damages merely constitutionality condemnation....” in inverse held that an action
Lower federal courts have also valid ordinance will lie when a condemnation “exceptionally zoning restrictive,” “allows no reasonable use or “arbitraiy capricious,” of plaintiff’s property.” 1973)
Brown v. Tahoe (D.Nev. Regional Planning Agency F.Supp. 1128, 1132. welfare and may reasonably necessity require “[P]ublic . . . . . . restrictive land use classification but such valid exceptionally nevertheless constitute a regulations may taking private property use owner entitling just compensation.” 647. This case Alto (N.D.Cal. 1974) Dahl Palo F.Supp. in the dealt with ordinances and issues concerned precisely zoning dismiss, the court held at hand. motion to city’s appeals Rejecting in inverse stated a cause of action for damages complaint condemnation. 1975) Palo Alto (N.D.Cal. Arastra Limited Partnership ordinances 962. This case also concerned
F.Supp. court held that a trial on the merits the foothills here at issue. Following of inverse on the had established theory right condemnation. *8 of the
We from a consideration foregoing authority, opine, as to so ordinance nevertheless valid operate oppressively zoning an landowner to a thus amount right aggrieved taking, giving in inverse condemnation. ordinances here at whether the We are to the question brought be found to be of that class. issue may reasonably in the are us as were The relevant facts stated pleaded by they indicated, since, demurrers were But as the City’s complaints. previously we without leave to amend over consider sustained plaintiffs’ objections, of which trial court could have at their other relevant matter request In a the trial will treat taken notice.1 demurrer court judicial properly matters, material, been if otherwise relevant and such having pleaded. P.2d matters in 30].) Barthel Cal.2d (Weil resolutions, embrace related and other official acts of reports, question Code, Evid. (See 452.) § City. a flat northern Until 1959 the alluvial lay plain entirely upon It was almost with Clara then Santa fully nearly developed, County. 2,483 acres. about residence units During year occupying 14.000 acres of owned and foothills virtually undeveloped privately 6.000 west included were The foothills which annexed plaintiffs’ by City. land, uses, other were zoned single-family among promptly permitted residential use on minimum one-acre sites. its studies of 1969 the commenced land-use
During year Plan it an amendment to its General foothills. Two later years “adopted 5,900 acres, foothills” (over over 90% re-classifying undeveloped Conservation land) and/or including plaintiffs’ Space “Open land was Park” uses. Thereafter successive ordinances plaintiffs’ rezoned “O-S (Open Space).”
Thereafter a “Staff On To Preserve Foothills Open Report Regulation director community City’s Space” prepared planning other it recited: development. Among things, matter “there still no error or be taken of impropriety Where notice may judicial 223].) Cal. P. (Varcoe v. Lee evidence.”
requiring *9 Council directed the staff to all available means
“[T]he pursue toward the in the Foothills the achieving open space objective including of methods and resources available for This was exploration acquisition. followed the amendment to the Palo Alto General Plan by designating uses the conservation, Foothills as and/or open space, parks established the in this the formally City’s policy respect. Subsequently, Commission the staff to to achieve the Planning ways requested pursue other than open space objective by acquisition.” “There have been various studies and deliberations the lengthy by Commission and Council focused on the Foothills Planning during few last These studies and deliberations in resulted years. amendment to the General Plan to the Foothills for designate Open uses, Conservation and/or Park and in the recent Space, adoption Element. In consideration Open crisis of Space newly recognized constantly diminishing open space, implementation adopted is in order. controls to policies Zoning natural protect preserve resources resources, hazards), (including protecting against agricultural areas, areas, lands, recreation scenic and, areas, watershed and wildlife when concentrations, situated close-in or near urbanized particularly are not desirable but also only necessary.”
Three alternative methods for achieving City’s “open space, conservation and/or for the foothills were submitted parks” goal “Staff Report.” 3” in
“Alternative follows substantial part: it to the “3. a new ordinance (and zoning regulation apply Adopt . . as a land use a stature Foothills) . but equal recognizing space open more Such an ordinance would be all other categories. significantly and the amount restrictive in size respect parcel building coverage An would an additional [by plan]. regulation put alternative permitted . .” 3.5 on the area. . (Italics limit total permitted impervious [of %] original.)
“Alternative is innovative that it traditional beyond goes large lot as a valuable resource space concept recognizes open for not but also future present worthy only preservation allows a use of land consistent with It reasonable generations. a 10 acre minimum lot the Foothills at size. Since the open space goal controls and site and review would how design prescribe development covered and where the areas areas (those buildings, impervious shall be terraces, roads, etc., which will not absorb rainwater) pools, *10 structures, roads, shall and other how the improvements placed; the natural and what extent with the harmonize existing landscape, as well materials be altered exotic natural shall landscape landscape therefore, the state of roads, essence of natural as and the the buildings A trails will will and the be retained. system paths space open the Foothills lands.” will access which allow through planned that cannot be overlooked consideration any “One important is owner. It most is effect on the important property zoning proposal The use of his land. established he be allowed a reasonable that long this zones to meet criteria without and 5-acre (A-C) 1-acre (R-E) appear 10, 20, on the owner At or 40 acres restriction question. we can to the value increases. reasonably respect property, market, mountain would have definite that homes expect large acreage when ‘close-in’ area. In this located particularly metropolitan Hills, we have the Los Altos Portola Valley, existing examples respect, areas. and Woodside environmental, aesthetic, and various
“Considering ecological, involved, factors Alternative with a minimum size of legal parcel acres is recommended as a reasonable balance between achieving on the one hand and a reasonable open objectives space allowing more use of on the other hand. It is restricted) (although O-S, that the ordinance be resultant suggested designated Open Space... ”2 3” recommended “Alternative and
The was approved adopted by “O-S, ordinances were The ensuing designated, suggested, Open City. Space.” and not set in full involved
We need forth lengthy It is of the here under consideration. sufficient ordinances say and the above-described and other activi- follow implement plans they and its and We think it ties and decisions agencies employees. few of however out a their point proper highlights. of the is the foothill land
The land ordinances City’s open-space is in its that of plaintiffs), “essentially (including unimproved have, course, But, 2We small “Staff significant excerpted portions Report.” our we have not interfered with the context. substantially opinion, state,” natural and which is for an use.” The designated “open space ordinances’ other is to among purpose, things, “protect preserve federal, state, land” and out space open “carry [such] regional, county, The ordinances, use” of the open space plans.” space “open other the use of “means land Public recreation.” among things, ordinances, state’s out carried Among “open space plans,” the use such land for “outdoor recreation” and recreation “park Code, Gov. (See 65561.) §§ purposes.” contend, in their now plaintiffs alleged complaints, they *11 ordinances, reason the above-discussed were and are denied by they or use substantial reasonable their any property.
We advert now to us. It the issue before concerns the principal proper accommodation of the of environmen- rapidly developing public policy tal Const., 5th (U.S. protection, constitutionally guaranteed right Amends.; Const., I, 14th Cal. art. former 14) that one’s § “private shall not be taken or for use without damaged public just admonishes that: “In this conflict compensation.” Respected authority constitutional, between the and the it is that neither is to ecological plain be consumed Massachusetts, the other.” Judicial Court of by (Supreme in Commissioner Natural Resources v. S. & Co. Mass. Volpe N.E.2d 671].) [206
At the outset it should be
out that it is now the settled law
pointed
of this state that:
action which
decreases the market
zoning
merely
“[A]
value of
not
does
violate the constitutional
forbid
provisions
or
ding uncompensated taking
damaging,...”
The rule was
in such
reiterated
a manner
discussed
by
previously
decision, HFH,
Court,
Ltd. v.
15 Cal.3d
Superior
Cal.Rptr.
365,
Reviewing discussed the 475 P.2d 441], Cal.3d issue. It said: here at constitutional rationale principles underlying I, defined of article section “The relevant basis succinctly ‘policy’ 628, 642 Board in Clement State Reclamation owner of the is whether decisive consideration P.2d 897]: more his would contribute than if uncompensated damaged property words, In other share to undertaking.’ underlying proper public inverse—as well ordinary— our constitutional provision purpose of the loss is ‘to distribute condemnation throughout community inflicted (Bacich the individual improvements’ making public upon . . .” Cal.2d P.2d 818]): (Italics Board Control (1943) added.) for the We observe no authority statutory taking “open-space” under or conservation and/or land for easements parks” “open space, note, We do therefor. without compensation power police that, least however, at what recognition legislative appears obtained should be such benefit by purchase ordinarily, public “The Code section 51073 states: domain. Government eminent Legisla- is in the . that the easements ture . . declares acquisition open-space funds interest and constitutes public public purpose or advanced.” bemay expended *12 as us the United a such that before presently
Considering problem Mahon, 260 Court in Coal Co. v. U.S. States Penna. Supreme supra, 413, 415, 322, 325, L.Ed. 326], asserted: on if
“Government could to some extent values incident to hardly go such could not be diminished without for every property paying change in the law. As some values are under an long general recognized, enjoyed limitation and But must implied yield police power. obviously limits, must and due limitation have its or the contract implied process clauses are One fact for consideration in such is limits gone. determining When it a in the extent of the diminution. reaches certain magnitude, be most if not in all cases there must an exercise eminent domain act. So to sustain the the question depends upon compensation to The is facts. weight judgment greatest given particular to to contend that the it is interested but always parties open legislature, . its constitutional has power... gone beyond legislature a is, at that “The rule least while regulated general extent, as a certain if too far it will be taking. recognized regulation goes desire ... are We in strong public improve danger forgetting is the desire condition not warrant enough achieving cut for the As we shorter than constitutional way change. paying said, have is a this therefore cannot be already question degree—and disposed by general propositions.” Mahon,
Penna. Coal Co. v. has been widely consistently followed and must be deemed the on the before authority ruling subject us. same court Block v. 256 U.S. Hirsh high 865, 871,
L.Ed. 41 S.Ct. 165], A.L.R. out that “there pointed comes a at which the ceases leaves point police power only eminent domain.” And Nectow v. U.S. Cambridge 842, 844, L.Ed. S.Ct. it said: “The 447], governmental power interfere with the of the land owner regulations rights general unlimited,...” use, the character of his is not by restricting California follows. Apposite authority
“While the broad in not it is power police very concept, without restriction relation to the taking damaging property. When it bounds in its invasion of it passes beyond proper property rights, in effect comes within the law eminent domain and its purview exercise A. (House v. L. Flood Control requires County compensation.” Dist. P.2d 950].) “Without an undue restriction on the use of question, private is as much a for constitutional taking purposes appropriating *13 or it.” (Candlestick Inc. San Francisco destroying Properties, Bay Conservation etc. Com. (1970) 897]; [89 italics in original.)
Courts will as to whether an ordinance which rezones “inquire so as to restrict uses which be made of the property may property unreasonable, A.... ordinance oppressive discriminatory zoning may not be used as a device take use without property public Los payment compensation.” (Kissinger City Angeles 454, 460,462 P.2d 10].) Sister states have similarly. spoken been
Where have of zone of change any “plaintiffs deprived by worthwhile or benefits their land ... occasion is rights appropriate v. Town Plan & Zon. for the exercise of eminent domain.” (Dooley A.2d 774].) Com’n Town Conn. of Fairfield “Conditions so burdensome are they imposed equivalent to an the title to the and some outright taking, although property vestiges of its uses remain in the owner. ... Confrontation between [IT] interests and interests is common in the private application zoning laws,.. which, facts, . and the their are held to be great majority upon are, however, reasonable exercise of the There police power. restrictions which have been as to a of the recognized equivalent taking restricted.” v. Johnson 265 A.2d (State (Me. 1970) A.L.R.3d 1414].)
“An
in the
is worse than
unrecognized taking
guise
regulation
confiscation. . . . ‘An ordinance which
so restricts the use of
permanently
it
cannot be used for
reasonable
it is
purpose goes,
and. must be
as a
of the
plain, beyond regulation,
recognized
taking
difference,
case,
substantial
in such
between restric
property.
only
tion
actual
is that the restriction leaves the owner
taking,
subject
taxation,
burden
while
confiscation would
payment
outright
”
him of
reheve
that burden.’
Natural Resources v. S.
(Commissioner of
Co.,
666, 671;
&
206 N.E.2d
italics in
and see
Volpe
original;
Arverne
Const. Co. v. Thatcher
278 N.Y.
N.E.2d
Bay
592,
Summarizing authority, Power, 116-121, rev.ed. Nature and section 1975) 1.42[1], Origin pages states: “Not is an actual under an only physical appropriation, attempted exercise of the effect an exercise of the police practical power power, domain, of eminent but if is so unreasonable or regulative legislation use and arbitrary virtually deprive person complete of his it of the law of comes within enjoyment purview property, eminent domain.” issue, on the instant we note that the state’s enacted recently
Finally, *14 51070-51097, Code, 16140-16153, Gov. (see “open-space” legislation §§ does not 65910-65912) of authorities purport enlarge power zoning Instead, to take land for such without purposes compensation. indicated, Government Code 65912 1970) section (enacted previously “The finds and declares that this article Legislature hereby provides: intended, is not and shall not be “Open-Space Zoning”] [entitled 628
construed, as or the to exercise its authorizing county power amend or an in a ordinance manner adopt, repeal open-space zoning which will take or use for without the damage private property public This section is not intended to payment just compensation of therefor. increase or decrease the of owner of under the rights any Constitution of the of of State California or the United States.” (Italics added.) out,
As of is that the pointed gist plaintiffs’ complaints City’s ordinances denied them reasonable or beneficial use of open-space any their land. “unreasonable,”
Whether
restriction is so
or
“arbitrary,”
“burdensome,”
as to transcend
bounds in its invasion of
“proper
is
to be determined
rights,”
trial
ordinarily
question
fact
of
of
issue,
and not
demurrer.
v.
(See Wilkins
San Bernardino
City of
332,
(1946)
338-339
P.2d 542]; Turner v.
Del
County
[175
311,
24
Norte
314
G&D
(1972)
93];
Holland
Cal.App.3d
Cal.Rptr.
[101
Co. v.
Construction
City Marysville
Cal.App.3d
[91
Smith v.
227];
Santa Barbara (1966)
Cal.Rptr.
County
Bernstein v. Smutz
292];
Alto,
649;
P.2d
48]; Dahl
Palo
supra,
F.Supp.
Aronson v. Town
Among the 10-acre land whether homesites are salable at all. This plaintiffs’ would seem to be of since the same question particular significance, are use,” homesites the ordinances designated by “open space and recreation and “wildlife habitat.” including park purposes extent, Other factual would concern: inquiries impact, intrusion and trails upon plaintiffs’ property by “paths system” to allow lands”; access the Foothill whether planned “public through there is reasonable basis for the ordinances’ declared aims natural resources and encouraging agricultural usage, preserving creating land; wildlife sanctuaries on the the reasonableness of generally, ordinances’ the foothills be subdivided into concept although homesites, 10-acre must without nevertheless therefor they compensation remain definitions “open space” according usages Government Code 65560. section The resolution of these other such *15 have in fact been denied issues will determine whether plaintiffs use of their land. reasonable or beneficial course, demurrers, an issue of law whether raised
The City’s of action for in inverse stated causes damages complaints plaintiffs’ Proc., 589; James v. Court Code Civ. § condemnation. (See Witkin, Cal. 783]; 416-417 2408-2410.) Procedure ed. 1971) (2d § Pleading, pp. on of the above-related we are unable authority subject light law, that have not stated a as a matter complaints say, plaintiffs’ cause of action for in inverse condemnation damages against City. decisions,
We are aided in this conclusion mentioned previously us, in what be called cases to those before of Arastra might companion Alto, Limited Palo Partnership supra, F.Supp. Alto, cases, noted, Dahl v. Palo 647. Those F.Supp. foothills, involved the same ordinances and actions of the City, here; the same factual and contentions as are apparently legal presented it was concluded that the therein had causes of action plaintiffs pleaded in inverse condemnation. remains, however,
There whether question plaintiff Beyer’s also stated a cause action for a declaration that the complaint judicial ordinances were unconstitutional and void” as to his “illegal, applied be stated as and other The issue whether open-space property. ordinances were constitutionally public purposes City’s zoning objectives. permissible such restraints on federal constitutional to be no
There appear authority. following according objectives, 303, 310, L.Ed. 386-387 272 U.S. v. Ambler Co. (1926)
Euclid are of modem zone laws 114, 54 A.L.R. origin. 47 S.Ct. “Building 1016]. recent Until about in this ago. twenty-five years country They began with the increase but life was urban great simple; comparatively years, and con- have and concentration developed, problems population, will continue are require, require, stantly developing, of the use and restrictions in additional occupation private respect wisdom, in urban communities. necessity lands Regulations, conditions, are so which, as apparent existing applied validity sustained, or even half a century are now ago, century uniformly they *16 would have been and ago, probably rejected arbitrary oppressive. sustained, Such are under the of our conditions regulations complex day, for reasons to those which, traffic analogous justify regulations, before advent of automobiles and transit street would rapid railways, have been condemned as and And in unreasonable. this fatally arbitrary there is no for while the of constitutional inconsistency, meaning varies, never of their must or guaranties scope expand application contract meet new different conditions which are constantly within field of their coming operation.”
Berman v. Parker U.S. L.Ed. 75 S.Ct. 98], “It is within the of the to determine that legislature power should be beautiful as well as as well as community healthy, spacious clean, well-balanced as well as carefully patrolled.” 636, 643,
Sierra Club Morton 405 U.S. L.Ed.2d S.Ct. “Aesthetic and environmental like economic 1361]. well-being, are of the of life in our well-being, important ingredients quality society, fact that environmental interests are shared particular rather than the few does not make them less many deserving legal protection through judicial process.”
The of the state in reference to the here public under policy subject consideration has been in this manner: expressed by Legislature Code
Government section 6953 1959): “The (enacted Legislature further declares that the of interests or in real acquisition rights and areas constitutes a preservation open spaces purpose____”
Government Code section 51072 “The 1974): (enacted Legislature lands, maintained, if declares hereby open-space preserved social, would economic or aesthetic constitute assets important physical, urban existing pending development.” were same in Friends principles recognized applied Mammoth Board Cal.3d Supervisors court, 502 P.2d where the 1049], wide stated: collecting authority, and out is more
“Though recognition problem government concern over violation our environment is not pervasive today, Four decades Justice Holmes entirely contemporary phenomenon. ago *17 It offers a is a treasure. an it ‘more than a river as described amenity, who have over those be rationed of life that power among necessity must 1104, 336, 342 L.Ed. 283 U.S. v. New York (1931) it.’ (New [75 Jersey for the Justice 1106, 51 S.Ct. Five 478].) high Douglas spoke years ago that the issue is not Commission the Federal Power in court admonishing The test is licensee .... to the will be beneficial ‘whether the project in interest'... in the will be preserving whether the public project . . . and the wilderness areas rivers and protection of wild reaches 869, 883, 428, L.Ed.2d 387 U.S. v. FPC (1967) wildlife.’ (Udall [18 ‘to statutes discussed a circuit court attesting More 1712].) S.Ct. recently, last, control, at the Government long the commitment ’ it of the The of material duty judiciary, destructive “progress.” engine in heralded environment held, that purposes, is to assure important in vast halls, or misdirected hallways are not lost legislative v. United States Coord. Com. (Calvert administrative bureaucracy. Cliffs’ 33].) 449 F.2d (1971) App.D.C. A.E. Com’n [146 not be action need administrative a involved in interest challenge Fund, v. Hardin (Environmental economic. Incorporated Defense 391].)” 428 F.2d App.D.C. the above in of the
It was
authority
expressed by
public policy
pursuit
hold
were
were enacted. We
that
that the
ordinances
they
City’s zoning
or
constitutional
exercises of the state’s
valid
beyond
police power
indicated,
in inverse
for
other attack
proceedings
except,
a declaration
condemnation.
Insofar as
they
Beyer sought
invalid,
cause of action.
his
stated no
were constitutionally
complaint
a
in the
contention that
We see no merit
“comprehensive [land
City’s
Rock Products
ordinance” or
Consolidated
(see
regulation
zoning
use]
515, 520-521
Los
Co. v.
Angeles
from the
P.2d
is in some
immune
342])
way
application
Mahon,
L.Ed.
260 U.S.
Co. v.
rule of Penna. Coal
supra,
far it will
cases,
too
that where the
and its kindred
326],
goes
“regulation
or found so
No
is offered
as a
holding.
authority
recognized
taking.”
Alto,
Palo
was made Dahl
The same
argument
of
“Defendant’s
647, 648,
the court
where
principal
responded:
F.Supp.
is that the
the failure to state a claim
as to
zoning regulations
argument
to a
were
community develop-
enacted
comprehensive plan
pursuant
There is no
exercise of the
are therefore a
ment and
power.
police
proper
however,
ends and
formula,
where
taking
set
regulation
determining
a
of reasonableness.”
It is essentially question
begins.
manner: “While the common counsel right unquestioned [aic] with accordance enact laws use zoning respecting well-considered and comprehensive plan designed promote public welfare, health, . . . such power safety subject general it not be exerted constitutional limitation arbitrarily ordinance . and this is so whenever . . unreasonably, *18 which it is for for the use any purpose precludes reasonably adapted.” court,
An one of the reason of the expressed sustaining superior amend, was that “there cannot be demurrers without leave to City’s The has stated a cause of action where there is not a City taking.” physical made the here. is invalid. same contention It also Klopping Whittier, us 39, 1, tells 1345], P.2d supra, that “before a invasion or a de facto there must be results taking “physical . . .’ One of a discussed in direct restraint. restraint’ legal ‘legal example harsh several California cases has been a zoning regulation, particularly Inc. v. Francisco (Italics . . .” Candlestick San added.) Bay Properties, 557, Com., “Without Conservation etc. states: supra, an much a restriction ... is as for constitutional undue question, taking as or it.” (Italics destroying original.) Bydlon purposes appropriating Ct. Cl. holds: “It is 764], United States (1959) F.Supp. no the rule that there be a to must invasion longer physical modem, a see there constitute “The (And cited.) authority taking.” is that interference with view substantial any private property prevailing which the to its or lessens its value owner’s (or by right destroys is, or use or is in substantial degree abridged destroyed) enjoyment sense, law, to the extent in fact and in a the constitutional ‘taking’ suffered, and of the owner even the title possession though 1975) on Eminent Domain rev.ed. (3d remains undisturbed.” Nichols (2 6.3, 65.) § p. Taking Damage, court of its for one
Another reason stated rulings, superior was remedies and relied “administrative City, upon by plaintiff’s have not been exhausted.” invalid, made, found in Dahl v. The same argument Alto, dealt which it will recalled
Palo be supra, F.Supp. with the here same foothills ordinances confronting regulations in this us. The court “As to the matter said: lack subject jurisdiction First, to refuse Court, two it Court defendant makes urges arguments. to available to failure exhaust exercise because plaintiff’s jurisdiction has, however, made a claim for inverse remedies. Plaintiff administrative Government Code 905. § in accordance with California condemnation is failure The other referred defendant plaintiff’s only remedy would, or a variance a variance. It improbable highly apply could, as here is involved (291 where much land as granted legally would be and where acres) contrary goal completely development will or state. The Court the land natural near natural in its preserving a not such useless course.” require Riverside, court in Sneed v. County determination, “Defendants contend made a similar plain- stating:
tiff to exhaust his administrative remedies failed prerequisite relief; that have from the he should Planning sought permit judicial or .... In the with uses variances Commission respect nonconforming who case ... it is not the has obtained a instant sought change *19 plaintiff before, the has from what existed but which invaded the alleged county in and thereto does not property rights plaintiff, response but the ordinance seeks constitutionality challenge merely in inverse condemnation ....” damages v. Town Zon. Com’n Plan & Town Dooley Fairfield, supra, 770, 774, contention,
A.2d a like “Under passed saying: upon case, in the circumstances it is not but present only unlikely highly could, that the board would or improbable appeals legally variance, on an for to the the relief acting application grant plaintiffs which seek. To which variance would afford they grant [Citations.] would relief undermine plaintiffs any appreciable seriously legisla- in tive of the a flood An defendant district. purpose creating plain for a variance would be to almost certain failure. doomed application course Such a useless is unnecessary.” have reached the same conclusion here.
We conclude, hold, we that each of From the considerations foregoing cause for in inverse stated a of action damages complaints plaintiffs’ It that the of dismissal condemnation follows judgment against City. actions aside. in each of the must be set noted, action as defendants
As joined City’s plaintiff Beyer’s in and the that event those council council members. City urges any in in not be held liable inverse condemnation defendants damages may or for costs in the action. We conclude that those defendants should action, order of the remain as court. subject any proper parties costs, will not however be liable damages, They be entered. judgment may
It is out which we take notice as pointed by proof, judicial therefrom, and his following judgment appeal Beyer requested, has title to the real at issue to one conveyed property Harrington. thereafter, with the subdivided and built City’s Harrington authority, in accordance with the ordinances here under upon has thus emasculated the consideration. The City argues Beyer of his that the ordinances had “controlling key allegation” complaint unmarketable and confiscated his devalued made substantially This nevertheless factual allegation poses controlling key property. fact, be resolved the trier of a trial. It issues which should may upon “undue be that as a result of the ordinances’ restriction on the use [the] effect, “unreasonable, or their or discriminatory” property,” oppressive discount the sale of his Beyer obliged unreasonably price A similar situation because somewhat arose City’s alleged taking. Whittier, 39, 58, where one of the Klopping City action, of his inverse condemnation lost his plaintiffs, following filing foreclosure. The court held that this did not property through “fortuity” him from such as he in fact have preclude recovering *20 moot, suffered. We decline to dismiss the of as appeal plaintiff Beyer the by requested City.
We have considered each of the detailed and incidental closely many them, made the in its briefs. None of points arguments by City our tends the conclusions we have reached. opinion, impugn
We do not the or any way pass upon weight admissibility evidence which hereafter be offered of the we by parties; simply with relevant hold that each of matters judicially plaintiffs’ complaints, sufficient, condemnation, facts on theories of inverse stated cognizable, resist the demurrers. City’s general successfully The court will set of dismissal are reversed. judgments superior of Palo Alto’s demurrers without leave orders the aside its City sustaining their if to amend. It will leave to amend they complaints grant plaintiffs advised, not and will otherwise take further shall be so proceedings inconsistent with the we have views Plaintiffs expressed. Beyer will recover their costs from the of Palo Alto. Eldridge appeal X, Molinari, P. concurred.
SIMS, J. dissent. I respectfully
In the first I whether the two cases of v. question place Beyer City of Palo Alto et al. Civ. (1 Palo 34134) Alto Civ. (1 Eldridge should have been It consolidated for is true each 33517) appeal. involves a claim that must be the on of inverse paid theory condemnation because of actions taken the board the by governing over a the each city years period prior filing complaint action, each and that of such claims is on the same course predicated hand, however, conduct On the one claims that the by city. Eldridge action of the under its but nevertheless city proper police power, rise to a cause of on action the other hand gave damages. Beyer claims that the action of the exceeded the bounds of its authorized city seeks, relief, as alternative declaration that police power, ordinance unconstitutional and void. The regulatory city illegal, Moreover, latter claim raises issues not raised many Eldridge.
has moved to dismiss because he has of the land Beyer’s disposed appeal which is the ordinance. subject city’s regulatory case, reaches the disposing Beyer majority opinion and unwarranted conclusion that since paradoxical, illogical Beyer’s was taken exercise of its he was city’s regulatory powers, entitled to but he was not entitled to secure an compensation, adjudica- tion that the ordinance was invalid. That decision flies in the face of Penna. Coal Co. Mahon U.S. 393 L.Ed. 43 S.Ct. 158, 28 relies, A.L.R. on which and all of the cases majority 1321] which have that a owner is entitled to be relieved of recognized burden of law ordinance so restricts use of regulatory *21 his as to constitute a fns. 3 and 4 (See below.) taking.
For the I would reasons treat the cases foregoing separately. Palo v. Alto
Eldridge City of It is a no secret that this case heretofore subject split decision of this court was Vacated a grant by hearing by ordered, Court. That further “The court cause is trans- Supreme
ferred to this court
retransferred to the Court of
First
Appeal,
District,
One,
HFH,
reconsideration in
v.
Division
Ltd.
light
Minutes,
Court
which sustained the view that demurrer in my Eldridge, in favor of the I should be affirmed. must judgment city reluctantly concede, however, that the decision leaves which the loopholes through as manifested from the can his plaintiff, present majority opinion, pursue claim for a cause of action in inverse condemnation. HFH,
It is clear that
Ltd. holds
that inverse condemnation does not
(1)
in
in
lie
actions
which the
mere reduction in
zoning
complaint alleges
market value
at
Cal.3d
not seek
(15
513-518); (2)
pp.
plaintiffs may
in a mandate action for
in
interim
the event
damages
they
(id.,
secure an
that the
is invalid
at
successfully
adjudication
rezoning
that constitutional values of “fairness” do not
518-520);
(3)
pp.
require
that inverse condemnation lies for
action which
ruling
any zoning
land,
reduces
market value of
tract of
but that considerations of
and the limitations of
instructions lead to a
policy
judicial
contrary
Nevertheless,
the court in footnotes
conclusion
at
(id.,
520-523).
pp.
that there were situations not covered
the facts as
recognized
by
alleged
HFH, Ltd.,
in the cause of action in
which was before the court.
stated,
The court
“Neither
Co. v.
San
Selby [Selby
Realty
“Similarly county any permit develop- of the land in even ment of most question (barring growth while the owner that the restrictions were of no vegetation), assuring because the intended to the land an county consequence acquire When, after the owner use of his for five airport. denying land, renounced intent to its the Court of years, county acquire ‘ affirmed a trial court Appeal finding exceptional “[t]he circumstances heretofore enumerated . . . constituted a extraordinary ’ take inverse condemnation.” subject by (271 [szc] at one 854.) sees that the rises to a p. Again downzoning in connection with actions taking only inequitable precondemnation by the public agency. the cases hold that a
“Finally, not use a public agency may zoning ordinance to evade the that the state requirement acquire property it uses for Sneed, Thus in public rather than purposes. county, land for an easement, air enacted a acquiring navigation simply zoning ordinance structure or more than three forbidding any inches vegetation over the high area thus proceeded restricted. The operate flights Court of held that the had stated cause of action in Appeal plaintiff inverse case, condemnation. Unlike the instant Sneed involved a zoning ordinance an actual use of the Cal.3d at (15 creating property." noted, fn. It 14.) also “This case does p. not and we therefore present, decide, do not of entitlement in the event a question compensation all use of the land in regulation forbade substantially question. We leave the for another fn. (Id., 16.) question day.” p. well, and in relied a course of Eldridge, Beyer plaintiff upon
conduct which he claims his case within the brought so, noted above. In neither has done exceptions my judgment but I do not believe either case summarily disposed HFH, reference to Ltd. v. I Court. have reiterated accordingly Alto, what I connection said before in with with Palo Eldridge City of editorial and added with views slight changes, my Beyer City respect Alto, Palo et al.
638
A of review that record reflects has plaintiff-landowner himself out of court.1 He contends that a valid exercise of the stipulated rise an action for and that the police power may give plans, ordinances and actions of the as fall within that city alleged category. Nevertheless, with below, noted he relies authorities exceptions upon which, in reference to action in the fields of and governmental planning that which are hold are rezoning, invalid and not regulations confiscatory a of exercise his refusal to proper seek power. By police declaratory relief,2 or mandate3 other remedies for relief recognized against govem complaint plaintiff’s 1 The a that real had fair value alleges market of of $4 million His is for the sum prior alleged taking. prayer “compensation $4,000,000.00; costs, his disbursements and reasonable expenses, including attorney, herein; and interest fees incurred thereon from the appraisal, engineering actually legal of date or for such further relief as and the Court deems taking damaging; proper.” court, “TTie of the advised the trial support complaint, attorney plaintiff’s validity of its and defendant’s transactions implementing project purpose Open-Space states, believes, In his brief “. he . . as unquestioned.” closing appellant respondent does, that the States 1970-72 and enabled thereby open-space legislation respondents activities the same constitute a valid exercise open-space pursued during period legally of the police power.” At the on the demurrer counsel that in the event the hearing plaintiff’s requested be leave demurrer should sustained he to amend to in “a tremendous granted put amount of material evidentiary factual the transactions involved. The surrounding” 16, order amend demurrer without leave to was filed on March sustaining signed 1973, and of was dismissal filed and entered March 26. On the same judgment day filed, and on the a notice of motion for following day reconsideration plaintiff prepared, of on No was demurrer. date noted for court. The notice but a was made for ruling hearing request setting states, a time and convenient for “Said motion is made in the place furtherance of on the Court should its justice grounds reconsider ruling consideration amended It plaintiff’s proposed refers to upon complaint.” proposed record, amended No such is attached to the complaint notice motion in complaint. nor does for a clerk’s such amended plaintiff’s request transcript designate any proposed as a record. filed memorandum in but complaint so far part opposition, record, from no amended appeared ever nor was the complaint prepared, motion, noticed other motion review of the order and/or ever seeking judgment, on no There is brought hearing. ever relief other than suggestion sought that set forth in his original prayer. 237, (Veta 2 See: (1974) State v. Superior Court 12 Cal.3d Company) California 497, 1281]; 250-252 and cf. 248-250 524 P.2d Cal.Rptr. Consolidated Rock Products [115 515, 638, v. (1962) 342]; Co. 57 Cal.2d 517 P.2d Los 370 City Angeles Cal.Rptr. [20 552, (1953) 865]; v. 40 554 Oil Co. Los Cal.2d P.2d Beverly Angeles [254 454, (1958) 10], v. Los 161 455 and 460 P.2d and 126-127 Cal.App.2d Cf. Kissinger City Angeles [327 110, v. Co. 10 Selby City San Buenaventura Cal.3d 117-118 Realty 799, 514 P.2d Cal.Rptr. 111]. HFH, Court, 3 See v. 15 Cal.3d fn. Cal.Rptr. Ltd. Superior supra, text; (Veta 237], P.2d State Court accompanying of California 237, 244-248; Buenaventura, Co. v. San Realty Company), supra, Selby 128; D 121-125 and Cal.3d G & Holland Construction Co. City 227]; Inc. Candlestick Marysville v. San Francisco Cal.Rptr. Properties, etc. Conservation Com. Bay *24 4 he has left himself without on the use of his mental restrictions property, his which has not been He seeks to retain a subjected remedy. property, invasion, for it and to to compensated any physical appropriation, too.
I in v. of attack is found Penna. Coal Co. The keystone plaintiff’s Mahon, 393, in words 260 U.S. where Justice Holmes ringing desire “We are in of strong public danger forgetting pronounced, is not to warrant condition enough achieving improve public the constitutional for the desire shorter cut than way paying change. ... [1] We assume, course, that the statute was passed upon it, and we an existed that would warrant the conviction that exigency the exercise of assume that an exists that would warrant exigency whom the loss of domain. But the at bottom is eminent question upon or communities desired should fall. So far as changes private persons surface we cannot have seen fit to take the risk of only rights, acquiring warrants the that the fact that their risk has become a see giving danger 416 L.Ed. at them than U.S. at (260 p. greater rights they bought.” [67 court, however, did not award the coal 326].) compensa company p. for the inroads which the state had made into tion company’s mining company rights by legislation purported require to mineral the surface of land which it had granted subject support It to mine without for subsidence.5 rights, including right liability 897]; 67]; v. 152 v. Munns Stenman 556 P.2d and Bernstein Cal.App.2d 48], Smutz 83 113-114 P.2d (Veta 12 4 See:State v. Court Cal.3d 252 Company), supra, of California Consolidated Rock Products Co. v. Los 57 Cal.2d [injunction]; Angeles, supra, 552,, Oil Co. Los [injunction]; Beverly Angeles, supra, El former [injunction]; Metro Dorado Realty County Code, 11525.1], Bus. & Prof. see § § 480] [review 5 Thelone voice of Justice Brandéis more attuned to modem He appears concepts. dissent, exercised, stated in “. . . where the is police power not to confer benefits upon owners, is, but to from protect there danger, my detriment no room for opinion, There was no considering reciprocity advantage. reciprocal [citation]; owner from oil advantage [citation]; [citation];' his tanks his prohibited using brickyard [citation]; his stable [citation]; his billiard hall his livery oleomargarine factory [citation]; his unless it be the business brewery advantage living doing in a civilized That is the act to the coal community. reciprocal advantage given by (260 329].) U.S. at L.Ed. at of what constitutes a operators.” p. p. Concepts civilized are ever Justice Lennon over community changing. years ago recognized, “Thus it is elastic that the is not a circumscribed but is apparent police power prerogative, and, with the and the belief mind keeping growth knowledge popular conditions of of the need for its to meet application, expansion existing capable economic, moral, social, modern life and with the pace and intellectual thereby keep reversed a decision declared the unconstitutional and
merely
legislation
Court of
which had directed that an
Pennsylvania
Supreme
be issued
the coal
violation of the
injunction
against
company’s
It
clear
nature of the
from
decision that the confiscatory
regulation.
is not
for a cause of action for
but the
regulation
grounds
damages,
measure of the constitutional
power
regulate.
*25
552
P.2d
40 Cal.2d
v.
Los
(1953)
Oil Co.
[254
City
Angeles
Beverly
of
“
follows:
. . . the
distinction as
the essential
the court
865],
recognized
of
from the
as differentiated
essence of the
power
power
very
police
individual
of
eminent domain is that
rights
deprivation
is
that its exercise
once it is shown
cannot
its
proper
prevent
operation,
of
within the
is
the method of its exercise
meaning
and that
reasonably
Rock
557. See also Consolidated
law.”
Cal.2d at
due
of
(40
p.
process
515, 530
57 Cal.2d
(1962)
Los
Co.
Products
Angeles
referred with
last cited the court
638,
In the case
342].)
370 P.2d
Cal.Rptr.
Coal Co.
indicated that the
decisions which
to
Pennsylvania
approval
529).
Cal.2d at
(57
to
p.
case was
comprehensive
inapplicable
II
find a
decided case
not been able to
Plaintiff
that he has
single
alleges
local
claimed
a
on the
of a
taking by
particular
compensability
passing
conservation
mandated
a state
open-space
government application
in such limited form
By stating
problem
planning
zoning project.
below,
rules,
itself
he
to
reviewed
seeks
escape
general
planning
action,
is
can
rise to no
and that
if not
zoning,
confiscatory,
give
right
use of
not
because it
the most
actionable
precludes
profitable
merely
Cal.
485
Works
(Miller v. Board
Public
evolution of the human race.”
Los
Products Co.
See also Consolidated Rock
P.
would us believe. be resolved examination of have They activities contention that continued series cumulative regulatory use all and beneficial “freezing” private private prohibiting in the of a local rise to gives implementation public project, property, of action inverse condemnation. Plaintiff for this seeks right support *26 a in series of cases with v. Los position beginning Kissinger City of 161 454 P.2d Angeles Cal.App.2d 10]. for but an action claim for declaratory was not a damages,
Kissinger aside it is of the courts to set court “. . . the relief. The duty recognized, and unreasonable under the facts is an ordinance which clearly 460.) at (161 or p. discriminatory. Cal.App.2d oppressive [Citations.]” found the ordinance in restricted The court question plaintiff’s alone, it left situated while all similarly subject property property which ordinance of the formerly zoning provisions comprehensive no at that there been 460); had (id., controlled p. property plaintiff’s area or the of the in the character surrounding subject property change that the sole reason 460-461); since the (id., assigned original zoning pp. towas the the for the exercise of rezoning property police power the and thus area undue an expose population congestion prevent the of a to from nearby the hazards fewer arising operation people was at the time airfield, which had existed hazards property to other zoned, hazards remained common property originally rezoned; was and that not city within the flight pattern The court 461). it had rezoned condemn the (id., intended to p. property true ordinance is clear that the concluded: “The inference purpose it in order that towas subject property improvement prevent (id., at a for be lesser price purposes” might airport acquired rezoned the 461-462); “In short ordinance arbitrarily plaintiffs’ pp. it a use winch it could not to economically put, lying property and commercial does between develop multiple-dwelling development the use ment and discriminates against plaintiffs by preventing 642
their for the fitted, use for which it is best while all property permitting other situated zoned to as R-3 be used property similarly property.” concerned, this (Id., 462-463.) court, Insofar as case is pp. invalid, observed, the ordinance “A ordinance not declaring zoning be used as a device to take for without use property public payment This (Id., 462.) would assist if compensation. p. plaintiff [Citations.]” he was a similar declaration and could show that the seeking his lower its with value the intent to discriminating against condemn a it for or uses.7 It in other no creates an election to park way sue the for offending public body damages.8 next
Plaintiff’s
is
v.
Riverside (1963)
Sneed
pillar
County of
in which the
found
318],
court
that the
Cal.App.2d
Cal.Rptr.
had stated a cause
for
of action
inverse condemnation under the
circumstances: “. . . the
law and the
ordinance
following
zoning
limited
7 Whether distinguished
applied Kissinger generally
principle.
Buenaventura,
v.
Cal.3d
Co.
court
San
Selby Realty
supra,
an
it as
case which
unconstitutional
“involved
Kissinger, referring
distinguished
so that it could be
use
acquired
to rezone
plaintiff’s
attempt
(10
of a lower
at
120.
Morse v.
Cal.3d
See also
San
price.”
p.
County
upon payment
Luis
710];
v.
Smith
Santa
Cal.Rptr.
County
Cal.App.2d
Obispo
292];
and 131
Cal.Rptr.
Barbara
129-130
Metro
Dorado,
El
Cf.
516.
Realty County
Klopping City
1345];
(1972) 8 Cal.3d
500 P.2d
Aaron v.
Whittier
Los
*27
[104
of
den.,
471,
(42
(1974) 40
We closer to claim with Peacock v. approach step plaintiff’s County Sacramento Herd a 391]. for the landowner inverse condemnation was sustained. The judgment states, “The centers on opinion controversy upon impact plaintiffs’ of a series of actions taken the Sacramento property rights County *28 Board of which actions were based what was Supervisors, upon initially an and became a stated intention that assumption subsequently publicly the would for Phoenix Field use aas county eventually purchase aviation The ‘take’ area with which we are concerned was facility. HFH, Court, 517, 508, 14; Gisler v. County v. 15 Ltd. 9 See: Cal.3d fn. supra, of Del Norte Madera Turner (1974) 919]; 306 v. County 38 Cal.App.3d Cal.Rptr. [112 of Luis (1972) 93]; 24 Morse San 315 and v. County Cal.Rptr. Cal.App.3d Whittier, v. 8 Obispo, supra, 247 603-604. Cf. supra, Klopping Cal.App.2d 39, 46; 471, 481; Los v. ex Aaron City Cal.3d 40 rel. Angeles, supra, People Cal.App.3d Co., 960, 965-966; v. Southern Pub. Wks. Pac. Trans. 33 Dept. supra, City of Cal.App.3d 347]; Oakland Nutter v. 13 763 14 and and fn. Cal.Rptr. Cal.App.3d Sacramento, Peacock v. 858 and 861. County Cal.App.2d would have had additional the
included in that county property the with their order accordance operate facility purchase case, board, of the involved in this The activities expressed plans. at the in 1958 and had been concluded time the commenced not subject trial 847.) was initiated.” at Neither the (271 Cal.App.2d p. proceeding all of actionable. The court nor the court found these activities reviewing out, the trial court did not find that opinion points “Significantly, actions, alone, the enactments constituted inverse county’s standing Rather, with of the condemnation. court county agreed position at trial that Ordinance 697 enacted and was an was as interim study ordinance, and that the between and its enactment period adoption of the for Field was a reasonable for Phoenix time general plan such Nor did the court hold that the completion study. rezoning relief, in June of 1963 a basis for five furnished of the although referred to in the private airports Leigh-Fisher reports only property Further, to Phoenix Field so reclassified. was adjacent [Citation.] court did and of the not consider the enactment general adoption plan, se, condemnation, but reached inverse its conclusion per constituting on the basis of the continuation of the restrictive measures partly beyond what time their was found to be a reasonable existence.” (271 at In metro El 856.) Realty Cal.App.2d p. distinguishing County of 480], Dorado Morse Cal.App.2d Cal.Rptr. 710], San Luis County Obispo the court which led it factors to affirm highlighted significant 13, 1963, there was a on November when taking county adopted before, the restrictions it had general plan continuing adopted thereafter authorized the of the prosecution including plan negotiations for the involved. (See at purchase Peacock, Sneed, 855.) 849-850 and In as in out pp. singled as a the ordinance was not of lonely object regulation, general inas Metro. Peacock’s lands subdividable, were usable and application to secure of a subdivision had been attempts approval thwarted map whereas in Metro the lands unusable, were unused county, and no subdivisions were located in the In the latter case the vicinity. restrictions were and had not into temporary jelled permanency. was, Sneed, Peacock there as in an to take the without attempt airspace Moreover, there was an compensation. (later revoked) express purpose take the involved and to affect the value of that particular property restrictions. (See property by 859-863.) Cal.App.2d atpp. *29 result, As a Peacock has been referred to Court aas by Supreme case which a claim of inverse condemnation because the “upheld county
645
announced
had
to
its intention
condemn
land for an
plaintiff’s
airport,
rezoned and restricted the use of that
so that its value
be
would
in the event
future
refused
depressed
public acquisition,
permission
subdivide, and
abandoned the
finally
airport project altogether.” (Selby
v.
110,
(1973)
Co.
Buenaventura
10 Cal.3d
120
Realty
City
[109
799,
HFH,
514
Court,
P.2d
See also
Ltd. v.
Cal.Rptr.
Superior
111].
supra,
508, 508, 517,
14;
15 Cal.3d
fn.
v.
Whittier
8
(1972)
Klopping
39,
Cal.3d
44
1,
and 46
tenor. There the court we hold that a condemnee “Accordingly must be with an to demonstrate that provided opportunity public acted either eminent authority improperly by unreasonably delaying domain action an announcement of intent condemn following condemnation; other unreasonable conduct as a result prior such action suffered a diminution in market question value.” Cal.3d at v. 52.) Co. San (8 Selby p. Realty City of Buenaventura, observed, the court “Neither nor supra, Flopping other decision of we are aware holds of a enactment area, for the future of an general plan development indicating potential land, uses owned amounts to inverse condemnation of privately HFH, Court, that land.” Cal.3d at 119. (10 See also Ltd. v. p. 508, 517, 14; Terminals, Cal.3d fn. v. Inc. San Francisco supra, Navajo Conservation & Com. Bay Development Cal.App.3d 108]; Investments, Inc. Cal.Rptr. Redevelopment Agency Del-Camp (1974) 38 rel. 762]; ex Cal.App.3d People Co., Pub. Wks. v. Pac. Trans. Southern Dept. supra, Cal.App.3d 965.) ex rel. Co., Pub. Wks. Southern Pac. Trans.
People Dept. 960, states, “Since the condemnee its has rights recovery there no need that the same against city, compelling damage in the eminent domain the state.” compensated brought proceeding at (33 966.) That statement is on the p. predicated premise, “A restriction value with a view to future imposed depress *30 creates a cause of action in inverse
eminent domain itself proceedings condemnation the unit ordi- the against governmental enacting zoning nance. a restriction be invalidated direct zoning by [Citations.] the Court of attack. at (33 966.) my opinion p. [Citation.]” the trial court to determine the erred not validity Appeal permitting state, action the as a introduce the the city zoning just party may evidence to show the of a higher zoning tending possibility permitting value. The court has to shift the cost the state greater attempted state, to not the when fact the the improvement city taxpayers, the If the been contested before had the city, acquired property. zoning invalid, action declared the state would have been forced to the pay full price. In Dahl v. Palo 1974) Alto the (N.D.Cal. F.Supp. reason of the same of the as are actions city
plaintiff sought damages the ect of the in this case. The court held that allegations subj complaint “is and that it regulation imposed by city arbitrary capricious allows reasonable use of were sufficient to raise a no plaintiff’s property” factual issue as to a whether the were exercise regulations proper of the With this I can 648-649.) at (372 police power. agree, F.Supp. pp. and it would be here if the had not applicable stipulated contrary. there were sufficient found that allegations
The district court also a of her land constituted on the use taking the moratorium establish that Sacramento, For in Peacock enunciated supra. under principles in this case. conclusion herein, I a similar cannot reach reasons set forth created an facts that there were also found That court alleged claim of sustaining plaintiff’s against estoppel equitable With 649). (id., of contract and respect breach misrepresentation p. remedies administrative not exhausted her had claim that the plaintiff filed, that the been that a claim had the court observed allegedly course it would be a useless reflected that require allegations a variance. (Id.) landowner to seek of whether confront the issue fails to plaintiff’s
The opinion her invalidated and is limited to recourse regulation having that there was status. It assumes despite restored to its former taking therefore, I, find exercise of the regulatory power. improper alleged with the and inconsistent opinions opinion unpursuasive inverse which have denied of this state Court right Supreme circumstances. under similar condemnation
647 401 1975) Alto (N.D.Cal. In Limited Palo Arastra City Partnership of 962, a landowner’s the federal court right again upheld F.Supp. of on the basis of the actions for inverse condemnation recover Alto, effect on the lands of which have a common of Palo City many in this action fails of and of complaint Eldridge Beyer. my opinion failed to because has within the framework of that case to fall of he ever had initiated or secured any development approval allege taken or the series of actions which was foreclosed by city, by plan to the for that the ever his designated particular parcel acquisition city Moreover, the cited the district extent shown in case. my opinion court erred in not landowner to his right develop relegating if, found, under the as it the new prior zoning property I as to under the no whether circumstances confiscatory. express opinion case, related in the cited landowner would entitled to some under for the with the compensation Klopping period commencing determination to take its with the abandon- property terminating ment of action. type
Other cases which an action for inverse condemnation recognize invaded, where the has been or has been plaintiff’s property physically diminished in value of actual because use of the are not airspace,10 on the issues raised controlling pursuasive complaint. plaintiff’s
Ill of an consists undevel- According complaint, plaintiff’s property 750 acres on Boule- oped parcel approximately contiguous Skyline vard and Mill Road in the San Francisco foothills Page peninsula San 15, Francisco He March overlooking Bay. acquired property 1968, $2,050,000, for the sum of of an assessment plus assumption $406,662.38 balance sewer and water utilities which had municipal 920, 568, (1972) 10 SeeNestle v. Santa Monica 6 Cal.3d 925-928 City Cal.Rptr. [101 345, 480]; (1970) 496 P.2d Holtz v. 3 Court Cal.3d 302-311 Cal.Rptr. 441]; P.2d Albers v. 261-264 County Los Angeles Cal.Rptr. 129]; P.2d House v. Dist. L. A. Flood Control Cal.2d County 493; 950]; P.2d Aaron v. Los 477-484 and supra, Angeles, Cal.App.3d Nutter, 752, 765-768; Oakland v. Reclamation Beckley 428].) Board 747-748 that the Allegations city, without the constructed certain access permission plaintiff, improvements plaintiff’s foundation, are without and are not themselves relied admittedly upon by property, condemnation, him cause of action for inverse because no giving right plaintiff claim was filed for so occasioned. damage specific 1963,11 after district in four an assessment been financed years 6,000 which the acres of an area of in 1959 had annexed approximately At the time of was a part. by plaintiff subsequently purchased were on the the annexation improvements property, *32 service and electric old ranch utility limited to some telephone buildings, is no mention two sides. Títere any improve- road on and public before or constructed above were those mentioned other than ments the At the time of property acquisition after by plaintiff. acquisition for low density R-E.A (Residential was zoned Estate—Agricultural) with lots minimum one-acre on residential development single-family lot. The unit property plaintiff purchased one dwelling per primary and investment of term planned development, for the long purposes hills, and wooded of its to make use glens many rolling intending area. San Francisco of the entire views Bay panoramic spectacular The is found in that a allegations gravamen plaintiff’s complaint 1969, series of acts and transactions and “in public commencing 28, those defendant CITY between particular occurring February 14, 1972, constitute a August taking plaintiff’s private for use as without property public permanent open space prior payment I, as Article section of the just compensation required by A Constitution of the State of California.” second cause of action seeks under the Fifth and Fourteenth Amendments to the Constitu- recovery States, tion of the United “Said series of acts and alleges, transactions of defendant CITY have devalued land more by plaintiff’s to below its than three-fourths of its fair market value and substantially cost, in that is thus is a unreasonable it actual wholly degree with a fair return or the said impossible reasonably develop property A third cause of action “Said series act's otherwise.” alleges, CITY amount to a transactions of the defendant damaging according use without just compen- proof plaintiff’s private I, 14, of the first been in violation of Article Section sation having paid, $4 Constitution Plaintiff million which State of California.” seeks the fair market value of his he was property prior alleged alleges Claim was made to the as law on for damages city required by taking. 14, 1972, 18, 1972, and the action filed December after September to act on the claim. failed city of the following rezoning 11 The that on October complaint alleges of the (see below), original was reduced to one-third text the amount of the assessment amount, $451,734.29, city. morato- The acts of fall into three categories—planning, complained rium on that in 1969 development, 'rezoning. complaint alleges studies; commenced a series of environmental and land use in 1970 discuss the of foothill city began publicly purchase 7, 1971, for the that on June properties preservation open space; an amendment to its over 90 city adopted general plan reclassifying 5,900 acres, foothills (over undeveloped percent including and/or Conservation and Park” plaintiff’s property) “Open Space uses; 17, 1972, that on was amended April general plan of an addition element.12 Plaintiffs also that in open space recognize 1970 the state such mandated the (See Legislature preparation plans. Code, 65560-65570, Gov. Stats. §§ § particularly adopted 1590, 15, ch. *33 3316.)13 § p. Buenaventura, makes it clear that Co. San Selby Realty supra, itself,
the of a even it areas to be adoption though may designate plan future, for use in the no of action for appropriated public gives right such a contention as follows: inverse condemnation. court rejected in this “The deleterious community growth consequences haphazard state and the need further random are evident to to prevent development even the most casual observer. The has to alleviate Legislature attempted the the for plans orderly problem authorizing adoption long-range Thus, it has not for the only progress. provided adoption general plans but also 65060 et 65450 et (§ (§ regional plans seq.), specific plans seq.), district 66105 et and a the (§ for plans seq.), comprehensive plan addition, conservation of San Francisco 66650 et (§ the Bay seq.). 12Plaintiff has that the court take notice of “Staff on requested judicial Report to Preserve Foothill the Director of and Regulation Open-Space” prepared by Planning of the of Palo it the Alto because reflects basis for Community Development and action of the commission council of which city plaintiff complains. planning and of the does not affect the discussed in Recognition perusal legal principles report It would material on the whether these issue of or not provisions. only determining valid, constitutional; is I concedes is an issue would not reach zoning, plaintiff this record. on 13Plaintiff also refers section 65912 of to the Government Code which with provides follows; to as “The finds and declares that respect open-space zoning, Legislature hereby intended, construed, this article is not and shall not be or the authorizing to exercise its county to amend or an ordinance power adopt, repeal open-space zoning in a manner which will take or for use without damage private property therefor. payment just This section is not intended to increase or compensation decrease the owner of under the Constitution rights any State of property California or of the United States.” As out above and below has elected not pointed plaintiff to expressly question ordinance, nor to seek have validity to his relieved of unconstitutional restraint. an initiative measure the mechanism for
voters recently passed providing ' the state’s coastline. (Pub. adoption plans preserve protect Code, Resources 27000 et § seq.) and its officials were held
“If a
subject
entity
responsible
governmental
because a
of land was
to a claim for inverse condemnation merely
parcel
authorized
use on one of these several
designated
potential public
halt,
would either
grind
community planning
plans,
process,
the future
deteriorate to
of vacuous
regarding
publication
generalizations
if
in no
use of land. We
eveiy
hyperbole
suggest
indulge
and distant
be affected at some
landowner whose
vague
might
was entitled
time
of these
future
legislatively permissible plans
by any
declaration as to
to obtain a
relief
an action
judicial
declaratory
bring
land, the courts of
his
effect of the
plan upon
validity
potential
clear,
It
under all
inundated with futile
this state would be
litigation.
of action
circumstances,
not stated a cause
has
against
or inverse condemna-
relief
for either
defendants
declaratory
county
HFH,
127-128;
120-121,
Ltd. v.
also
Cal.3d at
see
tion.” (10
pp.
pp.
Terminals,
508, 516;
Inc. v.
Court,
Navajo
supra,
Com.,
Francisco
Conservation &
San
Development
Bay
1, 3-5;
State
and Hilltop
Properties
*34
California
605,
349,
The kernel of rezoning complaint plaintiff’s code, and on 1972, added June zoning space regulations open 14, 1972, This classified category. August plaintiff’s property “R-E:A the classification from (Residential changed residential for low-density develop- Estate—Agricultural), single-family ment on minimum lots unit lot” one-acre with one primary dwelling per to “O-S Under new “construction of (Open Space).” *35 on the ... is limited 10-acre to one-family dwellings property expressly minimum with area lots a maximum of and impervious building 3.5 . .” of cent. . Uses are limited to Public recreation “(1) coverage per of of natural (2) scenic Conservation use of (3) Enjoyment beauty food and resources Production of or fiber Protection of man his (4) (5) artifacts and of etc.) Containment (6) (buildings, structuring property, urban development.”
There well be to this meets issue as whether may justiciable Mahon, test v. the as limited Penna. Coal Co. regulatory power of and transactions Plaintiff has “The aforesaid acts supra. alleged, his said CITY of all uses of defendant have private deprived plaintiff and his therein” and “The private rights property appropriated property 652
aforesaid acts and transactions of defendant CITY have deprived of reasonable or of feasible use said plaintiff economically his These are statements conclusions and not property.” legal allegations ultimate fact. State (See v. 233 Hilltop Properties California, supra, 349, 354.) Nevertheless contain the of facts which Cal.App.2d they germ render the new ordinance if it invalid can be shown to be might D (See G & Holland Construction Co. v. confiscatory. Marysville City of 989, 12 (1970) 994-997 227]; Munns v. Stenman Cal.App.3d Cal.Rptr. [91 543, 152 552-555 (1957) P.2d and 67]; Bernstein v. Cal.App.2d Smutz [314 (1947) 117-125 P.2d 48], Cf. Consolidated Cal.App.2d Rock [188 Products Co. v. Los 530-532; Cal.2d City Angeles, supra, v. Manhattan Beach McCarthy Cal.2d City (1953) P.2d [264 Madera, 932]; Gisler 303, 307-309; County Cal.App.3d Morse v. San Luis County 602-603 Obispo Cal.App.2d 710]; Smith Santa Cal.Rptr. Barbara (1966) 243 County of 126, 132 292]; Anderson v. Cal.App.2d Council Cal.Rptr. 88-90 and 41]; Santa Cal.Rptr. Mang v. County of Barbara 101-102 724].) does not moratorium, combination the rezoning plan the to relief an whole which entitles establish despite illegal two more than he aided its Nor is allegation legality parts. “that the announced after he his claim the months filed publicly city 14, 1972, that one on enacted said August ‘signified open rezoning space Alto’s foothills—would Palo assets—its golden greatest green ” come,’ conserved as to to for city generations backdrop “ 1,400 owns in Park and a declared ‘the acres Foothills foothills, trails and which is being designed path system, ” will Palo to If the allow Altans enjoy space.’ plaintiff’s open is condemned for trails or or if the parks, paths, city attempts property remedies, such without he use it for condemnation has his legal purposes condemnation, indirect, and in an action for direct he assert his contention that the zoned seek on illegally compensation free from value He also had the a declaration seek zoning. right or, actual restrictions on were his placed illegal, alternative, a to force seek him to his right permit develop *36 in a manner consistent with the has elected He not prior zoning. to those remedies. fn. 1 He entitled (See above.) is not to pursue HFH, on the facts in his Ltd. v. (See compensation alleged complaint. Court, 513-523; 15 Cal.3d State v. Superior supra, of California 237, 252-255; Court 12 Cal.3d and (Veta Company), supra, Selby 110, 118, Buenaventura, v. San Co. Realty of and 127-128.) to on demurrer the court sustained the The trial complaint properly inverse condemnation. no action was stated for the cause of ground it renders to the ordinance failure attack Plaintiff’s directly zoning to show he facts sufficient to determine whether has alleged unnecessary I no not a and that it was valid exercise express power, police the whether have on that or on issue of should ground, plaintiff opinion the Because for a variance before so ordinance. applied attacking and so restricted his failed to on plaintiff prayer produce, rehearing, amended no error his there was in to amend. complaint, denying request I would affirm the in Palo Alto. judgment Eldridge City of Palo al. Alto et Beyer City of
For the reasons set I forth above am of the that the in opinion this action failed to set forth facts to sufficient constitute a cause of action did, however, recover for inverse condemnation. He unlike seek a that the declaration ordinance was Eldridge, open space illegal, and unconstitutional void. Those allegations suggested many interesting which have issues been briefed the two and amici thoroughly by litigants curiae.14 Because of to the attention intervening brought developments is, moot, of the court motion dismiss the it by city’s appeal to reach those issues. my opinion, unnecessary 12, 1973, of dismissal entered and Beyer judgment July to, do, take 1973. The us and I has asked
appealed July .on city that the his contention open Beyer, raised by support arguments 14Among void, It will not are following: is unconstitutional ordinance illegal, space zoning the 17 it forces open space; objective achieve its preserving cannot legislative to furnish benefits open space the land so restricted who owned persons laws; the State California’s open space it with conflicts without compensation; Plan; enacted to it was Palo Alto General improperly it is with inconsistent district; it a regional park land reduce the to be acquired price moderate income for low and housing people; excludes wealthy benefits restrictive zoning. such adopt circumstances city estopped because of exceptional it the ordinance is invalid because has theory One amicus curiae supported need, and unconstitutionally low and moderate cost an area housing excludes on with low incomes and unconstitutionally impinges discriminates against persons (9th Cir. (See v. City Ind. Ass’n. Co. Petaluma to travel. Construction Sonoma right 905-909, 1975) 522 F.2d 904-905 and fn. den. 2/23/76 particularly p. [cert. 342,96 1148-1149)]. (47 U.S. 934 L.Ed.2d S.Ct. Cf. Concord 439 Pa. Township Appeal 765, 766-770], A.2d with 56 Wis.2d 470-476 Just v. Marinette County 761, 767-768].) 14-18 N.W.2d *37 notice certain records which indicate that deeds judicial by 3, 1974, 1974, 8, dated and recorded was April May Beyer property 11, 1974, to one Prior thereto on March conveyed Harrington. Harring- ton had secured council for his to divide city approval application council, into two on lots. Thereafter property May upon recommendation of the commission planning approved Harrington’s for site and aof residence on application design family approval single one of On the lots. a was issued to him August building permit and thereafter various the work were made and inspections supple- Meanwhile, issued. deed dated June mentary permits and. 20, 1975, recorded January Harrington conveyed away portion Neither nor his have intervened or been property. Harrington grantees action, substituted in the all for are Beyer’s appears they satisfied to have under the acquired developed open space zoning. facts, not does contest the but he claims he still
Beyer
foregoing
entitled to a declaration that the ordinance is
He
invalid.
relies upon
Assn,
Millbrae
Residential
Survival
Millbrae (1968)
for
observed,
251], wherein this court
in
Cal.App.2d
Cal.Rptr.
motion,
connection with a similar
one acts under
“[Wjhen
compulsion
coercion in
with a
he does not lose his
compliance
judgment,
right
from that
at
There is
(262
232-233.)
appeal
judgment.”
pp.
in the record
a bare
in
brief
statement
to
nothing
except
plaintiff’s reply
show that he was under
his
sell
land
realize cash in
compulsion
order to
his
it
meet
debts
remain solvent.
the case cited
also
there
the vendor and
interest between
continuity
appeared
vendee,
and that the former had undertaken
continue the
for
litigation
benefit
here.
232).
of the latter
at
No such
was made
(id.,
showing
p.
It would
that the
no
has a
or other
appear
plaintiff
longer
pecuniary
unconstitutional,
interest
declared
having
open
space
void.
Goldman v.
Santa Barbara
(See
illegal
County of
454, 456-458
532].)
Plaintiff also seeks
his
with
Sarff in
equate
position
Whittier,