Dale v. City of Mountain View

• Decision Date: 06 February 1976
• Citation: 55 Cal.App.3d 101,127 Cal.Rptr. 520
• Court: California Court of Appeals Court of Appeals
• Parties: James J. DALE and Francie Dale, Plaintiffs and Appellants, v. CITY OF MOUNTAIN VIEW, Defendant and Respondent. Civ. 35304.

Page 520

127 Cal.Rptr. 520

55 Cal.App.3d 101

James J. DALE and Francie Dale, Plaintiffs and Appellants, v. CITY OF MOUNTAIN VIEW, Defendant and Respondent.

Civ. 35304.

Court of Appeal, First District, Division 2, California.

Feb. 6, 1976.

As Modified Feb. 17, 1976.

Law Offices of Colin Peters, A Professional Corp., Palo Alto, for plaintiffs and appellants.

Bruce W. Liedstrand, City Atty., Mountain View., for defendant and respondent.

TAYLOR, Presiding Justice.

J. and F. Dale, the property owners, appeal from a judgment of dismissal entered after the court sustained without leave to amend ¹ the general demurrer of the City of Mountain View to Dales' complaint for declaratory relief and inverse condemnation. They contend that the city's adoption of an amendment to its general plan that restricted the use of their property to 'open space' constituted an arbitrary and unconstitutional exercise of the police power, as well as improper 'spot zoning,' and that without compensation the city has taken and damaged their right to the use and enjoyment of their property in the sum of $1,500,000. We have concluded that there is no merit to any of these contentions, and that the judgment of dismissal must be affirmed.

Preliminarily, we set forth the well settled rules that govern a reviewing court in considering an appeal from a judgment sustaining a demurrer to a complaint. The allegations of the complaint must be regarded as true. It must be assumed that plaintiff can prove all of the facts as alleged. The court must in every stage of an action disregard any defect in the pleadings that does not affect the substantial rights of the parties (Code Civ.Proc., § 475). Pleadings must be reasonably interpreted; they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears. All that is necessary as against a general demurrer is to plead facts showing that the plaintiff may be entitled to some relief (Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216). In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties (Schaefer v. Berinstein, 140 Cal.App.2d 278, 288--289, 295 P.2d 113). While allegations of the complaint are deemed to be true in ruling on the demurrers, where an allegation is contrary to law or to a fact of which a court may take judicial notice, it is to be treated as a nullity (National Automobile & Cas. Ins. Co. v. Payne, 261 Cal.App.2d 403, 408, 67 Cal.Rptr. 784). While a demurrer admits all material and issuable facts, properly pleaded, it does not admit contentions, deductions or conclusions of law (Daar v. Yellow Cab Co., 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732).

The complaint set forth the following facts: The Dales are the owners of a parcel of real property in the city, known as the 'Cherry Chase Golf Course.' At the time the property was incorporated into the city in 1962, it was zoned agricultural, and has been used by the Dales' tenant as a golf course under a valid conditional use permit from the city. We may take judicial notice of the fact that the property is presently used as a golf course, and is leased for this purpose until 2011. ²

The imposition of the agricultural zoning in 1962 was a matter of convenience, recognizing the existing use at the time the property was incorporated into the city. By the terms of the agricultural classification itself, and by the contractual relations between the city and the Dales, the city recognized that the real property was suited only for eventual residential development. ³

The public access to the neighborhood in general, and the property i question, is limited and dangerous as on two of its three sides, the neighborhood is bounded by heavily-trafficked four-lane highways; the third side is bounded by the city.

The property is the privately owned land within the developed section of the city whose use is restricted to recreational or visual open space. The property is surrounded by parcels for which a higher and more intensive use is permitted. As a result, the property has been diminished to a level of not more than one-sixth of the value of the land that is contiguous to it.

Immediately adjacent to the real property to the south and southeast thereof is a parcel of 14 acres, more or less, of substantially unimproved land. The Dales are informed and believe that the parcel is owned in fee simple by the city; that the zoning applicable to this city-owned parcel allows multi-family residential units; that the zoning regulations on all property located within the neighborhood, other than the golf course, allows residential uses varying from single-family residential to a large multi-unit planned community apartment.

On February 13, 1973, Dales' application for a zoning change, presented by a development corporation to the city council of the city, was formally disapproved. On June 11, 1973, the city adopted Resolution No. 9734, Amendment No. 9, to the general plan of the city, which resolution proscribed all use of Dales' property except as open space for the purpose of providing recreational and visual relief to the citizens of the city and the surrounding communities. We may take judicial notice of the fact that pursuant to Mountain View City Code, sections 36.8.1--35.8.3, the uses permitted in an open space ⁴ agricultural zone, in addition to agriculture, include both commercial and noncommercial recreation uses and facilities, swimming pools, golf courses, tennis courts, riding stables, kennels, veterinary clinics, animal hospitals, cemeteries, crematoriums, mausoleums and columbariums.

As to the first cause of action, the Dales alleged that an actual controversy has arisen and now exists between them and the city concerning their respective rights and duties under the general plan of the city and zoning ordinances that have been or may be enacted in conformity with the general plan. The general plan of the city and zoning ordinances which have been or may be enacted pursuant to that plan, are arbitrary, oppressive and discriminatory in their application so as to deny the Dales their rights under the Fifth and Fourteenth Amendments of the United States Constitution, and article I, sections 11, 13 and 14 of the California Constitution.

For their second cause of action for inverse condemnation the Dales realleged the facts as set forth above and further alleged that prior to the amendment to the general plan, the fair market value of the property was $2,000,000; after the amendment, it was not worth more than $500,000. The Dales have not been paid any compensation and on September 24, 1973, the city rejected their claim of $1,500,000.

As to the first cause of action for declaratory relief, our Supreme Court in Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, said at 117--118, 109 Cal.Rptr. 799 at 803, 514 P.2d 111 at 115: 'We cannot discern in the foregoing allegations any concrete dispute between plaintiff and the county which admits of definitive and conclusive judicial relief. The county has taken no action with respect to plaintiff's land except to enact a general plan describing proposed streets, as required by state law. The fact that some of the proposed streets, if ultimately constructed, will cross plaintiff's property gives this plaintiff no greater right to secure a declaration as to the validity of the plan or its effect upon his hand than that available to any other citizen whose property is included within the plan. The plan is by its very nature merely tentative and subject to change. Whether eventually an part of plaintiff's land will be taken for a street depends upon unpredictable future events. If the plan is implemented by the county in the future in such manner as actually to affect plaintiff's free use of his property, the validity of the county's action may be challenged at that time.

'The adoption of a general plan is a legislative act. Since the wisdom of the plan is within the legislative and not the judicial sphere, A landowner may not maintain an action in declaratory relief to probe the merits of the plan absent allegation of a defect in the proceedings leading to its enactment. (Citations.)' (Emphasis supplied.)

The identical reasoning applies to the amendment to the general plan adopted here. As the Dales have failed to allege any defect in the proceedings leading to the adoption of the city's general plan, the city's general demurrer to the first cause of action was properly sustained pursuant to Selby.

Nor can we agree with the Dales' contention that the first cause of action raises any issues pertaining to the validity of the underlying zoning ordinances. In the instant case, there was no rezoning, no specific denial of any permit to the Dales that...