Brown v. City of Fremont

CourtCalifornia Court of Appeals
Writing for the CourtCALDECOTT
Citation75 Cal.App.3d 141,142 Cal.Rptr. 46
PartiesErnest 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.
Decision Date17 November 1977

Page 46

142 Cal.Rptr. 46
75 Cal.App.3d 141
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.
Court of Appeal, First District, Division 4, California.
Nov. 17, 1977.
Hearing Denied Jan. 13, 1978.

[75 Cal.App.3d 142]

Page 47

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.

[75 Cal.App.3d 143] 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.

CALDECOTT, Presiding Justice.

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

Page 48

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, [75 Cal.App.3d 144] 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...

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35 practice notes
  • Eisenberg v. Alameda Newspapers, Inc., No. A076289
    • United States
    • California Court of Appeals
    • September 20, 1999
    ...Cal.Rptr.2d 653 (Union Bank ); Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1433, 266 Cal.Rptr. 695; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 145-146, 142 Cal.Rptr. 46; Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468-469, 33 Cal.Rptr. 661 (Saporta ).) The plaintiff may not......
  • Murillo v. Rite Stuff Foods, Inc., No. B114877
    • United States
    • California Court of Appeals
    • June 30, 1998
    ...against another or against other evidence, however. (Unjian, supra, at p. 884, 256 Cal.Rptr. 478; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 145, 142 Cal.Rptr. 46.) On appeal, we review the matter de novo. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d ......
  • Food Safety Net Servs. v. ECO Safe Sys. USA, Inc., No. B231667.
    • United States
    • California Court of Appeals
    • October 4, 2012
    ...as “ ‘a pleader cannot blow hot and cold as to the facts positively stated [in the complaint].’ ” ( Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146, 142 Cal.Rptr. 46, quoting Manti v. Gunari (1970) 5 Cal.App.3d 442, 449, 85 Cal.Rptr. 366.) For the first time on appeal, Eco Safe's rep......
  • Food Safety Net Servs. v. Eco Safe Sys. United States, Inc., No. B231667.
    • United States
    • California Court of Appeals
    • October 4, 2012
    ...as “ ‘a pleader cannot blow hot and cold as to the facts positively stated [in the complaint].’ ” ( Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146, 142 Cal.Rptr. 46, quoting Manti v. Gunari (1970) 5 Cal.App.3d 442, 449, 85 Cal.Rptr. 366.) For the first time on appeal, Eco Safe's rep......
  • Request a trial to view additional results
35 cases
  • Eisenberg v. Alameda Newspapers, Inc., No. A076289
    • United States
    • California Court of Appeals
    • September 20, 1999
    ...Cal.Rptr.2d 653 (Union Bank ); Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1433, 266 Cal.Rptr. 695; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 145-146, 142 Cal.Rptr. 46; Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468-469, 33 Cal.Rptr. 661 (Saporta ).) The plaintiff may not......
  • Murillo v. Rite Stuff Foods, Inc., No. B114877
    • United States
    • California Court of Appeals
    • June 30, 1998
    ...against another or against other evidence, however. (Unjian, supra, at p. 884, 256 Cal.Rptr. 478; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 145, 142 Cal.Rptr. 46.) On appeal, we review the matter de novo. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d ......
  • Food Safety Net Servs. v. ECO Safe Sys. USA, Inc., No. B231667.
    • United States
    • California Court of Appeals
    • October 4, 2012
    ...as “ ‘a pleader cannot blow hot and cold as to the facts positively stated [in the complaint].’ ” ( Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146, 142 Cal.Rptr. 46, quoting Manti v. Gunari (1970) 5 Cal.App.3d 442, 449, 85 Cal.Rptr. 366.) For the first time on appeal, Eco Safe's rep......
  • Food Safety Net Servs. v. Eco Safe Sys. United States, Inc., No. B231667.
    • United States
    • California Court of Appeals
    • October 4, 2012
    ...as “ ‘a pleader cannot blow hot and cold as to the facts positively stated [in the complaint].’ ” ( Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146, 142 Cal.Rptr. 46, quoting Manti v. Gunari (1970) 5 Cal.App.3d 442, 449, 85 Cal.Rptr. 366.) For the first time on appeal, Eco Safe's rep......
  • Request a trial to view additional results

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