__ Cal.App.2d __, Civ. 16105, City & County of San Francisco v. Ross

Docket NºCiv. 16105
Citation__ Cal.App.2d __, 270 P.2d 488
Party NameCity & County of San Francisco v. Ross
Case DateMay 20, 1954
CourtCalifornia Court of Appeals

Page __

__ Cal.App.2d __

270 P.2d 488

CITY & COUNTY OF SAN FRANCISCO

v.

ROSS. [*]

Civ. 16105.

California Court of Appeals, First District, First Division

May 20, 1954

Rehearing Denied June 18, 1954.

Hearing Granted July 14, 1954.

[270 P.2d 489] Dion R. Holm, City Atty., John Elmer Barricklo, Deputy City Atty., San Francisco, for petitioner.

Jesse H. Steinhart, B. J. Feigenbaum and John H. Steinhart, San Francisco, for respondent.

PETERS, Presiding Justice.

By this proceeding in mandamus the City and County of San Francisco seeks to compel Harry D. Ross, the Controller, to certify to the availability of funds from the 1947 Off-street Parking Bond Fund to be used by the petitioner for the acquisition by eminent domain of a proposed public off-street parking garage site at Ellis and O'Farrell Streets in San Francisco. The site is now privately owned. The City intends to lease it to a private operator who will construct and operate a parking garage thereon. By the terms of the proposed lease the City will not retain any control over the rates to be charged by the lessee. The Controller, on many grounds, has refused to make the requested certification. His most important objection is that the proposed use is not a 'public use' within the meaning of Article I, section 14, of the Constitution, relating to eminent domain. We agree with this contention.

The background leading up to this controversy is not in dispute. On November 4, 1947, the electorate of San Francisco approved a parking bond proposition in the amount of $5,000,000. The precise proposition submitted to the voters was worded as follows: '$5,000,000 to pay the cost of public parking lots, storage space, garages, single or multi level structures, and other off-street parking facilities on, under or above the surface of any property, including public parks, squares, lands, easements or rights of way to be acquired by purchase or condemnation, together with buildings, structures, equipment, approach roads, entrances, exits, fencing, off-street parking meters, and other words, property or structures for the accommodation of automotive vehicles, and necessary or convenient for adequate parking facilities, to relieve the congestion and to facilitate traffic in the metropolitan district of the City and County of San Francisco, provided that all lands and sites so acquired be subject to the approval of the Planning Commission of the City and County of San Francisco.'

There still remains in this fund, unappropriated and unallocated, approximately $4,000,000 available to be used for the purposes for which the bonds were authorized. On October 3, 1949, purporting to act under the Parking Law of 1949, Sts. & Hy. Code, §§ 32500-33552, the Board of Supervisors took the necessary steps to create a Parking Authority in this area. This Authority, by formal resolution, approved the 'Ellis-O'Farrell Midblock Site' as a site needed for off-street parking purposes, after first securing the determination of the City Planning Commission that such project would not conflict with the master plan of the Commission. The resolution requested the Board to designate the site as one needed for public parking purposes and to appropriate the $1,750,000 estimated as necessary to acquire it. The Board of Supervisors, by resolution, determined that the site was necessary and convenient [270 P.2d 490] as an off-street parking site, and requested the Parking Authority to submit to it a proposed joint working agreement between the City and the Authority by which the site was to be acquired and a public garage constructed and operated thereon. The Parking Authority and the City executed such a joint working agreement. The Authority thereupon recommended to the Board the acquisition of the site in question under the San Francisco charter and the general eminent domain statutes. It also recommended that the Board request the Controller to certify the availability of $1,750,000 for such acquisition, and requested the Board to submit an appropriation ordinance therefor. The Board, by appropriate resolution, concurred in the recommendation of the Parking Authority and directed the clerk of the Board to request an appropriation of the $1,750,000 for the purposes involved. The clerk of the Board submitted to the Controller a request for an appropriation from the bond fund, and an appropriation ordinance of the Board, requesting him to certify the availability of funds in that fund for the disired purpose. The Controller refused to comply, contending that the money in the fund could not be used for the proposed expenditure. His approval is necessary before such money can be lawfully appropriated from the fund. § 86, par. 1, of the Charter of San Francisco. This refusal by the Controller resulted in the filing of this petition aimed at compelling the Controller to act.

The plan of the City is to acquire, by condemnation, a portion of the Ellis-O'Farrell midblock between Powell and Stockton Streets, and to lease that site to a private operator who will agree to construct and operate thereon an off-street parking garage, with a capacity of not less than 900 cars, and a number of retail commercial stores. The resolution of the Board recommends the acquisition of the site 'for the purpose of a public off-street parking garage and uses necessary or incidental thereto and that the inclusion of retail commercial stores be permitted in said structure.' The major portion of the site is presently occupied by a privately-owned parking facility with ability to accommodate not over 225 automobiles. The plan provides that the City will own the condemned site but will lease it for not less than twenty-five years and not more than fifty years for a rental based on a percentage of the gross income, and with a minimum fixed flat rental. The lessee must build according to the specifications of the City as lessor. The completed structure will face on both Ellis and O'Farrell Streets. It is provided that the lessee will construct on the ground floor of such frontages some retail stores, not exceeding twenty-five per cent of the total area of the structure, and will be permitted to lease these to private persons for commercial purposes. The City estimates that not more than four per cent of total area of the garage will be devoted to this purpose. The lease intentionally omits any provision conferring on the City the right to control or restrict, in any way, the rates...

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2 practice notes
  • 207 S.E.2d 113 (W.Va. 1973), 13355, State ex rel. City of Charleston v. Coghill
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • July 24, 1973
    ...for individual profit, a court is entitled to strike down the enterprise. In the case of City and County of San Francisco v. Ross, 270 P.2d 488 (Cal.App.1954) the California Court held that the acquisition of land by a city for the purpose of leasing it to an entrepreneur for the constructi......
  • 199 S.E.2d 641 (N.C. 1973), 80, Stanley v. Department of Conservation and Development
    • United States
    • North Carolina Supreme Court of North Carolina
    • October 10, 1973
    ...over a private hospital and no authority to regulate its rates in the public interest. See City and County of San Francisco v. Ross, 270 P.2d 488 (Cal.App.1954). The Court has not heretofore considered whether the abatement of pollution created by a private industry may be accomplished by m......
2 cases
  • 207 S.E.2d 113 (W.Va. 1973), 13355, State ex rel. City of Charleston v. Coghill
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • July 24, 1973
    ...for individual profit, a court is entitled to strike down the enterprise. In the case of City and County of San Francisco v. Ross, 270 P.2d 488 (Cal.App.1954) the California Court held that the acquisition of land by a city for the purpose of leasing it to an entrepreneur for the constructi......
  • 199 S.E.2d 641 (N.C. 1973), 80, Stanley v. Department of Conservation and Development
    • United States
    • North Carolina Supreme Court of North Carolina
    • October 10, 1973
    ...over a private hospital and no authority to regulate its rates in the public interest. See City and County of San Francisco v. Ross, 270 P.2d 488 (Cal.App.1954). The Court has not heretofore considered whether the abatement of pollution created by a private industry may be accomplished by m......