Brown v. City of Fremont
| Citation | 75 Cal.App.3d 141,142 Cal.Rptr. 46 |
| Court | California Court of Appeals |
| Decision Date | 17 November 1977 |
| Parties | Ernest S. BROWN and Charlotte J. Brown, Plaintiffs and Appellants, v. The CITY OF FREMONT, a California General Law City and The City Council of The City of Fremont, et al., Defendants and Respondents. Civ. 39290. |
Cox, Cummins & Lamphere, a Professional Corp., Paul O. Lamphere, Martinez, for plaintiffs and appellants.
Allen E. Sprague, City Atty., City of Fremont, Theodore R. Bresler, Asst. City Atty., Charles J. Williams, a Professional Corp., Fremont, Williams & Capole, Martinez, for defendants and respondents.
Fulop, Rolston, Burns & McKittrick, a Law Corp., Marvin G. Burns, Kenneth B. Bley, Beverly Hills, for amicus curiae Dillingham Development Co., and Catharine H. Niven, in support of plaintiffs and appellants.
City of Sacramento, James P. Jackson, City Atty., Leliand J. Savage, Deputy City Atty., Sacramento, City of Antioch, City of Concord, City of Laguna Beach, City of Los Angeles, City of Modesto, City of Oxnard, City of Pittsberg, City of Pleasanton, City of Richmond, City of Riverside, City of San Diego, City of Walnut Creek, amicus curiae in support of defendants and respondents.
Plaintiffs-appellants, Ernest S. Brown and Charlotte J. Brown (hereinafter referred to as Brown) are owners of land located within the territorial limits of defendant-respondent City of Fremont (city). 1 The complaint alleged three causes of action in inverse condemnation. Respondents filed a motion for summary judgment on all three counts, which motion was granted and judgment entered. The appeal is from the judgment.
Appellant Brown alleges in the first cause of action that respondent city, from 1966 through August 1974, pursued a course of action whereby appellants were denied all economic uses of their property. The second cause of action alleged the respondents adopted a de facto moratorium which constituted an unreasonable "spot zoning" of Brown's property. The third cause of action sought damages for a "down zoning" of Brown's property which reduced the fair market value of the property from $3,500,000 to $675,000, for agricultural uses.
Brown owns approximately 250 acres of real property in Fremont which is located in a larger area known as the Northern Plain. The property has been zoned agriculture and flood plain from 1957 to the present time. The zoning of the Brown property permits the following uses as a matter of right: agriculture, including nurseries, ranch and farm dwellings, public parks, extraction of chemicals from sea water by natural evaporation, dwellings for permanent ranch staff, home occupations, and professional offices in a home, private garages, parking areas, and stables, roadside stands for sale of own products, and other accessory uses.
From 1957 to 1969, the Fremont general plan designated the Brown property for agricultural use. In 1969, Fremont revised the general plan to indicate the possibility of a variety of uses for the Northern Plain area, including the Brown property, which included residential and industrial uses. The 1969 general plan for the Northern Plain area of Fremont was premised on construction of a freeway by the state which would have served the area.
The state abandoned the proposed freeway in 1973. After this decision by the state not to construct the freeway, Fremont commenced studies of the 1969 general plan for the Northern Plain. The studies were for the purpose of ascertaining the effect of the abandonment of the freeway on the plan for the Northern Plain. In April 1973, the Fremont planning staff concluded that the intense development contemplated by the 1969 general plan was not advisable without the freeway to serve the Northern Plain area.
In September and November 1973, pursuant to the mandates of Government Code sections 65302, subdivisions (d) and (e), and 65560-65567, Fremont adopted the Conservation Element and the Open Space Element, respectively, of the general plan. These two elements expressed the policy of preserving and encouraging agricultural uses and of weighing the relative benefits of agricultural and housing uses for the Northern Plain area. At the same time Fremont adopted these elements of the general plan, the Fremont planning staff began an intensive planning study of the Northern Plain.
During the summer of 1974, the Fremont planning staff presented an interim report of this intensive study to the Fremont Planning Commission and City Council. After the public hearings, the Fremont planning staff recommended the general plan be amended to provide for agricultural uses of the Brown property through 1985.
On August 20, 1974, the Fremont City Council held a public hearing on the planning commission recommendation to amend the general plan. At this public hearing the city council adopted a motion indicating the intent of the city council to amend the general plan for the Northern Plain as recommended and directing the planning staff to prepare the amendment.
The intent and direction of the motion were never implemented, because Fremont was enjoined from doing so by the superior court in the case of Singer Housing Co. v. City of Fremont. It was this motion that triggered the present litigation and is what Brown refers to as a de facto moratorium.
Brown contends that during the period 1966 to 1973, four applications were made to the city to develop the property and all were denied; that on August 20, 1974, the city council adopted a motion of intent to amend the general plan restricting his property to agricultural uses; that as a result of the city's actions, the property has been restricted to agricultural uses, the income from the property is less than the taxes, and the property was so stigmatized by the repeated and continuous action of the city that it was impossible to sell the property. He claims that the city has effectively taken the property for public use. The basis of Brown's claim is that because of the actions of the city he has been deprived of any reasonable economic use of his property and the trial court erred in granting summary judgment. Brown cites Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613, 129 Cal.Rptr. 575, as being "particularly appropriate to this action." In Eldridge, the court reversed a judgment after a demurrer without leave to amend had been sustained. The court pointed out at page 628, 129 Cal.Rptr. at page 583, that "the gist of plaintiffs' complaints is that the City's open-space ordinances denied them any...
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