Eldridge v. City of Palo Alto

• Decision Date: 23 April 1976
• Citation: 57 Cal.App.3d 613,129 Cal.Rptr. 575
• Court: California Court of Appeals Court of Appeals
• Parties: Donald F. ELDRIDGE, Plaintiff and Appellant, v. CITY OF PALO ALTO, Defendant and Respondent. Harry 'J' BEYER, Jr., Plaintiff and Appellant, v. CITY OF PALO ALTO et al., Defendants and Respondents. Civ. 33517, 34134.

Page 575

129 Cal.Rptr. 575

57 Cal.App.3d 613

Donald F. ELDRIDGE, Plaintiff and Appellant, v. CITY OF PALO ALTO, Defendant and Respondent.

Harry 'J' BEYER, Jr., Plaintiff and Appellant, v. CITY OF PALO ALTO et al., Defendants and Respondents.

Civ. 33517, 34134.

Court of Appeal, First District, Division 1, California.

April 23, 1976.

Hearing Denied July 15, 1976.

Cliff & Nowinski, Frank B. Cliff, Peter A. Nowinski, Palo Alto, for Donald F. Eldridge.

Robert K. Booth, Jr., City Atty., City of Palo Alto, Palo Alto, Jackson, Turner & Mulcare, William J. Turner, Burlingame, Atkinson, Farasyn, Smith & Caploe, Fred Caploe, Mountain View, Vatuone, Dok, Daiker, Randall & Bryant, Norman E. Matteoni, San Jose, for City of Palo Alto, et al.

Fulop, Rolston, Burns & McKittrick, Marvin G. Burns, Beverly Hills, Pollock, Williams & Berwanger, John P. Pollock, Charles V. Berwanger, John T. Harris, Los Angeles, as amici curiae for Donald F. Eldridge and Harry J. Beyer.

Evelle J. Younger, Atty. Gen., Carl Boronkay, E. Clement Shute, Jr., Asst. Attys. Gen., Nicholas C. Yost, Richard C. Jacobs, Deputy Attys. Gen., San Francisco, as amicus curiae for City of Palo Alto.

Crist, Crist, Griffiths, Bryant & Schulz, Frank Lee Crist, Jr., Palo Alto, for Harry J. Beyer.

ELKINGTON, Associate Justice.

These appeals, with similar subject matter and issues, have been consolidated for the purpose of our consideration and disposition of them.

Plaintiffs Eldridge and Beyer were the owners, respectively, of 750 acres and 22.27 acres of generally unimproved land in the foothills of the City of Palo Alto (hereafter the 'City'). The City had enacted zoning ordinances which, among other things, classified their property as 'permanent open space and conservation lands.'

Plaintiff Beyer thereafter commenced an action against the City and its council and council members. The complaint alleged, Inter alia, that the effect of the ordinances was to arbitrarily, unreasonably, and by means of excess regulation and in contravention of the state Constitution (art. I, former § 14) and federal Constitution (5th and 14th Amends.), take and damage his property for public use without compensating him therefor. He prayed for damages in inverse condemnation or, in the alternative, that the ordinances be declared 'illegal, unconstitutional and void as applied to (his) property.'

Plaintiff Eldridge also filed a complaint with similar allegations, against the City alone. The only relief sought by him, however, was for damages in inverse condemnation; he conceded the ordinances' validity.

The superior court sustained the City's general demurrers in each of the actions and, over objection, denied leave to amend the complaints. Each of the plaintiffs has appealed from a judgment which was thereafter entered dismissing his action.

A preliminary question is presented. May a zoning ordinance operate so oppressively upon affected property owners as to require payment of compensation in an action for inverse condemnation? Or, in such a case, is the landowner's sole remedy an action to invalidate the ordinance, at least as to himself, on constitutional or other grounds? It will be seen that if the latter is the exclusive remedy, plaintiff Eldridge's complaint stated no cause of action, as did plaintiff Beyer's insofar as it sought damages in inverse condemnation.

The United States Supreme Court tersely discussed this subject in Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322. It said: 'The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.' (Emphasis added.)

More recently the same court in Goldblatt v. Hempstead (1962) 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130, citing Penna. Coal Co. v. Mahon, supra, held that 'the form of regulation (can) be so onerous as to constitute a taking Which constitutionally requires compensation.' (Emphasis added.)

No express holding of this state's Supreme Court on the subject is to be found. But nevertheless the following decisions of that court bear upon the problem.

Klopping v. City of Whittier (1972) 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345. Discussing 'de facto taking cases,' the court declared (p. 46, 104 Cal.Rptr. p. 7, 500 P.2d p. 1351) that before such a 'taking results there must be a 'physical invasion or direct legal restraint.' . . . One example of a 'legal restraint' discussed in several California cases has been a particularly harsh zoning regulation, . . .' This recital reasonably must mean that a valid, but particularly harsh, zoning regulation may give rise to damages in inverse condemnation, for if the regulation were invalid it could have no effect giving rise to such damages.

HFH, LTD. v. Superior Court (1975) 15 Cal.3d 508, 125 Cal.Rptr. 365, 542 P.2d 237. The petitioners of that case sought inverse condemnation damages resulting from a down-zoning ordinance which drastically reduced their property's market value, but nevertheless allowed a substantial and reasonable beneficial use. They urged (p. 516, fn. 13, 125 Cal.Rptr. p. 371, 542 P.2d p. 243) 'that the injury constituting the taking was the reduction in market value of the land.' The high court found the dismissal of their action, upon the sustaining of a demurrer to their complaint, to have been proper. It was made clear by the court (p. 514, 125 Cal.Rptr. p. 369, 542 P.2d p. 241) that the ruling was predicated on pleadings where the zoning ordinance's 'only alleged effect was a diminution in the market value of the property in question.' In such a case there would be no injury or at least no legal or compensable injury. But the court held (p. 516, fn. 13, 125 Cal.Rptr. p. 371, 542 P.2d p. 243): 'If such a reduction constituted an injury, It would occur regardless of the legality of the zoning action occasioning it; . . .' (Emphasis ours.)

California's Legislature has also recognized that an unreasonably drastic openspace zoning ordinance, although otherwise valid, may result in a taking requiring 'just compensation therefor.' (Gov.Code, § 65912.)

And the state's Court of Appeal has frequently reached similar conclusions.

Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471, 115 Cal.Rptr. 162 (cert. den., 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822). Here the court affirmed a judgment holding the defendant city liable in damages for inverse condemnation, occasioned by excessive jet aircraft noise from a municipally operated airport. Relied upon were several 'California cases (holding) that zoning restrictions intended to facilitate the operation of an airport and to protect the approaches to it may constitute a taking of property.' (P. 481, 115 Cal.Rptr. 169.)

Gisler v. County of Madera (1974) 38 Cal.App.3d 303, 306, 112 Cal.Rptr. 919, 920. 'In certain factual situations it is difficult to draw a precise line between a noncompensable injury resulting resulting from the enactment of a valid (zoning) regulation under the police power (citations) and (such) regulations which are beyond the limits of the police power and can only be justified as a 'taking' under the power of eminent domain which requires just compensation (citations).'

People ex rel. Dept. Pub. Wks. v. Southern Pac. Trans. Co. (1973) 33 Cal.App.3d 960, 966, 109 Cal.Rptr. 525, 529. Here the court stated: 'A zoning restriction imposed to depress value with a view to future eminent domain proceedings itself creates a cause of action in inverse condemnation against the governmental unit enacting the zoning ordinance. (Citations.) The zoning restriction may be invalidated by a direct attack.'

Turner v. County of Del Norte (1972) 24 Cal.App.3d 311, 315, 101 Cal.Rptr. 93, 96. 'Despite the conclusion that the zoning ordinance is valid as a reasonable exercise of the police power, the appellants would still be entitled to compensation if there was a taking of their property.'

Peacock v. County of Sacramento (1969) 271 Cal.App.2d 845, 854, 77 Cal.Rptr. 391, 398. A zoning ordinance as "applied to plaintiffs' lands (deprived them) of any practical, substantial or beneficial use thereof." A judgment against the county for damages in inverse condemnation was affirmed.

Sneed v. County of Riverside (1963) 218 Cal.App.2d 205, 212, 32 Cal.Rptr. 318, 322. The court found no fault in an inverse condemnation action where it was the 'county which has invaded the alleged property rights of plaintiff, and in response thereto plaintiff does not challenge the constitutionality of the ordinance but merely seeks damages in inverse condemnation . . ..'

Lower federal courts have also held that an action in inverse condemnation will lie when a valid zoning ordinance is 'exceptionally restrictive,' or 'arbitrary and capricious,' or 'allows no reasonable use of plaintiff's property.'

Brown v. Tahoe Regional Planning Agency (D.C., 1975) 385 F.Supp. 1128, 1132. '(P)ublic welfare and necessity may reasonably require exceptionally restrictive land use classification . . . but . . . such valid regulations may nevertheless constitute a taking of private property for public use entitling the owner to just compensation.'

Dahl v. City of Palo Alto (D.C., 1974) 372 F.Supp. 647. This case dealt with precisely the zoning ordinances and issues concerned in the appeals at hand. Rejecting the city's motion to dismiss, the court held that the complaint stated a cause of action for damages in inverse condemnation.

Arastra Limited Partnership v. City of Palo Alto (N.D.Cal., 1975) 401 F.Supp. 962. This case also concerned the zoning ordinances and foothills here at issue. Following a trial on the merits the court held that the plaintiff had established a right to damages on the theory of inverse condemnation.

We opine, from a consideration of the foregoing authority, that a valid zoning ordinance may nevertheless operate so oppressively as to amount to a taking, thus giving an aggrieved...