Associated Home Builders of Greater East Bay, Inc. v. City of Walnut Creek

Decision Date13 October 1970
Citation90 Cal.Rptr. 663,11 Cal.App.3d 1129
PartiesASSOCIATED HOME BUILDERS OF the GREATER EAST BAY, INCORPORATED, individually, and for the benefit of all its members, Plaintiff and Appellant, v. CITY OF WALNUT CREEK et al., Defendants and Respondents. Civ. 26432.
CourtCalifornia Court of Appeals Court of Appeals

Harold H. Turner, Turner & Ring, Walnut Creek, for plaintiff and appellant.

Daniel J. Curtin, Jr., City Atty. of City of Walnut Creek, Walnut Creek, for defendants and respondents.

William A. Hirst, City Atty. for the City of Pleasanton, Pleasanton, John A. Lewis, City Atty. for the City of Livermore, Livermore, amici curiae on the brief in support of respondents.

Amici curiae and special counsel.

Martin & Flandrick, City Attys., San Marino, for City of Baldwin Park.

Allen Grimes, City Atty., Beverly Hills, for City of Beverly Hills.

Martin & Flandrick, City, Attys., San Narino, for City of Bradbury.

Samuel Gorlick, City Atty., Burbank, for City of Burbank.

James R. Christiansen, City Atty., Carpinteria, for City of Carpinteria.

George L. Lindberg, City Atty., Chula Vista, for City of Chula Vista.

David J. Levy, City Atty., Concord, for City of Concord.

Robert J. Timlin, City Atty., Corona, for City of Corona.

Roy E. June, City Atty., Costa Mesa, for City of Costa Mesa.

M. Dwain Smith, City Atty., Delano, for City of Delano.

Max Wilcox, Jr., City Atty., El Cerrito, for City of El Cerrito.

Melvin S. Johnsen, City Atty., Eureka, for City of Eureka.

Stanley R. Norton, City Atty., Palo Alto, for City of Half Moon Bay.

Martin & Flandrick, City Attys., San Marino, for City of Irwindale.

M. Dwain Smith, City Atty., Delano, for City of Mc Farland.

F. A. Silveira, City Atty., Merced, for City of Merced.

Martin & Flandrick, City Attys., San Marino, for City of Montebello.

William C. Marsh, City Atty., Monterey, for City of Monterey.

Martin & Flandrick, City Attys., San Marino, for City of Monterey Park.

James T. Rohner, City Atty., Mountain View, for City of Mountain View.

Roger Golla, City, Atty., Pittsburg, for City of Pittsburg.

Charles J. Williams, City Atty., Martinez, for City of Pleasant Hill.

James P. O'Drain, City Atty., Richmond, for City of Richmond.

William H. Keiser, City Atty., Roseville, for City of Roseville.

Michael Aaronson, City Atty., San Carlos, for City of San Carlos.

Martin & Flandrick, City Attys., San Marino, for City of San Marino.

Richard G. Randolph, City Atty., San Mateo, for City of San Mateo.

Rodney R. Atchison, City Atty., Santa Cruz, for City of Santa Cruz.

John A. Van Ryn, City Atty., Santa Maria, for City of Santa Maria.

Saul M. Weingarten, City Atty., Seaside, for City of Seaside.

Martin & Flandrick, City Attys., San Marino, for City of Sierra Nadre.

Martin & Flandrick, City Attys., San Marino, for City of South Pasadena.

John Noonan, City Atty., South San Francisco, for City of South San Francisco.

M. Dwain Smith, City Atty., Delano, for City of Tehachapi.

Martin & Flandrick, City Attys., San Marino, for City of Temple City.

E. E. Clabaugh, Jr., City Atty., Ventura, for City of Thousand Oaks.

James G. Rourke, City Atty., Santa Ana, for City of Tustin.

Richard Moore, Oakland, for Alameda County.

Douglas J. Maloney County Counsel, San Rafael, for Marin County.

James L. Rankin, Asst. County Counsel, Santa Cruz, for Santa Cruz County.

DAVID, * Associate Justice Pro Tem.

This is an appeal from a judgment in declaratory relief, sustaining the constitutionality and validity of Business and Professions Code section 11546 1 and Walnut Creek Municipal Code section 10-1.512, and supporting resolutions Nos. 1883 and 2225, which as applied to appellant nonprofit corporation and certain of its members, would require dedication of land for park and recreational purposes, as a condition of approval of their subdivision maps; or in lieu of dedication, or accompanying it, would require the payment of fees to the city. 2

Business and Professions Code section 11546 does not enlarge the police power of cities, directly granted by California Constitution, article XI, section 7, but its enactment resulted from decisions which indicated that the general law, the Subdivision Map Act, preempted the field. 3 We are concerned with the construction of both section 11546 and the local legislation in reference to California Constitution, article I, section 14, prohibiting the taking of private property for public use without just compensation; and the federal and state constitutional provisions securing due process and equal protection of the laws. 4

Necessarily, our review is limited, in the absence of a record of specific action in relation to a specific subdivision 5 (City of Tiburon v. Northwestern Pac. R. R. Co. (1970) 4 Cal.App.3d 160, 182, 84 Cal.Rptr. 469), but declaratory relief is proper. (Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 636-637, 12 Cal.Rptr. 671, 361 P.2d 247.) The legislative power must be upheld unless it manifestly infringes upon constitutional guaranties. (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461-462, 202 P.2d 38; Hart v. City of Beverly Hills (1939) 11 Cal.2d 343, 348, 79 P.2d 1080.) (But to give effect to the Constitutions, it is as much the duty of the courts to see that they are not evaded, as that they are not directly violated. (Parker v. Otis (1900) 130 Cal. 322, 326, 62 P. 571, 927.)) In essence, it is contended here that by a semantic inversion of the term 'dedication,' a voluntary act, 6 to include its antonym, a compulsory taking of private property for public use as a condition precedent to approval of a subdivision map, an evasion is attempted. If that is necessarily so, such an arbitrary exaction will be nullified. (Mid-Way Cabinet, etc., Mfg. v. County of San Joaquin (1967) 257 Cal.App.2d 181, 192, 65 Cal.Rptr. 37; cf. Kissinger v. City of Los Angeles (1958) 161 Cal.App.2d 454, 327 P.2d 10.)

Recreation as a necessity for health has long been recognized. The need for recreational facilities reaches a new dimension of public concern, with increased leisure for all, early retirement for workers, and expansion of both the young and of the senior citizens' groups, with ever-increasing life expectancies and longevity. 'For Satan finds some mischief still For idle hands to do.' (Watts, Divine Songs XX (1715).) Cervantes observed, 'the bow can not always stand bent, nor can human frailty subsist without lawful recreation' (Don Quixote, c. 21, p. 412). James Thomson was quite modern when he remarked, 'health is the vital principle of bliss, and exercise, of health' (The Castle of Indolence, Canto II, Stanza 55).

A requirement that a park or ercreational area be reserved in a subdivision, to expand open space and thus provide more light and air, etc., for health and the general welfare has a parallel in the legally established requirements for yards, and set-back areas commonly found in zoning ordinances. (Clemons v. City of Los Angeles (1950) 36 Cal.2d 95, 222 P.2d 439; Hamer v. Town of Ross (1963) 59 Cal.2d 776, 31 Cal. Rptr 335, 382 P.2d 375; Christensen v. Thurber (1953) 120 Cal.App.2d 517, 261 P. 2d 312.) There is a substantial difference between the use and control still retained by the landowner in such instances, and mandatory dedication where the public takes the property over for unrestricted public use.

As we view it, the Legislature by enacting section 11546 did not thereby enlarge the substantive law, except tangentially, so far as dedication is concerned, but removed any implication arising from the cited cases that a city was not privileged to request it, in proper instances. If section 11546 were interpreted to mean that dedication might be compelled in all cases for park and recreational purposes, as a condition precedent to approval of a subdivision map, we would conclude that it thereby was in direct conflict with California Constitution, article I, section 14, and hence void. In authorizing the imposition of fees in lieu of requiring dedication, there is an even more difficult question, involving due process of law and equal protection of the laws.

At the outset, we must emphasize that the sale and subdivision of land for the purpose is not a privilege, but a right. 7 Likewise, under the existing plethora of laws, in which the subdivider has no practical freedom of action, it cannot longer be said that in presenting a subdivision map for approval, there is an implied consent to mandatory dedication. 8 Under duress, the failure to resist is not consent. 9 The fact that in the recorded decisions involving mandatory dedications, it does not appear that the property owner has been awarded damages for the taking for public use, is not because the expropriation was justified without compensation under the police power, but because they have not asserted nor proved actual damages. Our California Supreme Court has said, "It is not a trivial thing to take another's land, and for this reason the courts will not lightly declare dedication to public use." (Manhattan Beach v. Cortelyou (1938) 10 Cal. 2d 653, 662, 76 P.2d 483, 487.)

In constitutional law, it was established that if a state by its laws should authorize private property to be taken for public use without compensation (except to prevent it from falling into the hands of the enemy, or to prevent the spread of a conflagration, or in virtue of some other imminent necessity where the property itself is the cause of the public detriment) it would be depriving the owner of his property without due process of law. (Davidson v. New Orleans (1877) 96 U.S. 97, 107, 24 L.Ed. 616, Bradley, J.)

While this rule has been exemplified many times in nuisance cases, it was given an updated application in Ayres v. City Council of Los Angeles (1949) 34 Cal.2d 31, 207 P.2d 1. Where the construction of the subdivision streets as planned (a condition of the...

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  • McKain v. Toledo City Plan Commission
    • United States
    • Ohio Court of Appeals
    • 26 Mayo 1971
    ...Neck Estates Limited v. Luchsinger (1969), 61 Misc.2d 619, 305 N.Y.S.2d 922; Associated Home Builders of Greater East Bay Inc. v. Walnut Creek (1970), 11 Cal.App.3d 1129, 90 Cal.Rptr. 663, at pp. 670, 673-674. Cf. Ayres v. City Council of Los Angeles, 34 Cal.2d 31, 207 P.2d 1, 11 A.L.R.2d 5......

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