Eldridge v. City of Palo Alto

Decision Date26 September 1975
Citation51 Cal.App.3d 726,124 Cal.Rptr. 547
CourtCalifornia Court of Appeals Court of Appeals
PartiesDonald F. ELDRIDGE, Plaintiff and Appellant, v. CITY OF PALO ALTO, Defendant and Respondent. Civ. 33517.

Cliff & Nowinski, Frank B. Cliff, Peter A. Nowinski, Palo Alto, for plaintiff and appellant.

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

Fulop, Rolston, Burns & McKittrick, Marvin G. Burns, Beverly Hills, as amici curiae on behalf of plaintiff and appellant.

ELKINGTON, Associate Justice.

We are concerned on this appeal with the proper accommodation of the rapidly developing public policy of environmental protection, to the constitutionally guaranteed right (U.S.Const., 5th and 14th Amends.; Cal.Const., art. I, former § 14) that one's 'private property shall not be taken or damaged for public use without just compensation.' Respected authority admonishes that: 'In this conflict between the ecological and the constitutional, it is plain that neither is to be consumed by the other.' (Supreme Judicial Court of Massachusetts, in Commissioner of Natural Resources v. S. Volpe & Co. (1965), 349 Mass. 104, 206 N.E.2d 666, 671.)

In the action below, the superior court sustained a demurrer without leave to amend, to plaintiff's 'Complaint In Inverse Condemnation.' His action was brought following enactment of zoning ordinances of the City of Palo Alto (hereafter sometimes the 'City') classifying 750 acres of his 'foothill' property as 'permanent open space and conservation lands.' The denial of leave to amend was over plaintiff's objection. His appeal is from a judgment of dismissal of the action entered following the superior court's above-mentioned ruling.

Our task, as was that of the superior court, is to determine whether plaintiff's complaint states a cause of action in inverse condemnation.

We summarize the relevant facts as they are stated in the complaint. But since, as indicated, the City's demurrer was sustained without leave to amend we consider also, at plaintiff's request, certain related 'Regulations and legislative enactments issued by or under the authority of' the city; these matters could be pleaded in an amended complaint, or the superior court could take judicial notice of them. (See Evid.Code, § 452, subd. (b).) 1

Until 1959 the City lay entirely upon a flat alluvial plain in northern Santa Clara County. It was then almost fully developed, with nearly 14,000 residence units occupying 2,483 acres. During that year about 6,000 acres of virtually undeveloped rolling foothills to the west, all privately owned, were annexed by the City. The foothills, among other permitted uses, were promptly zoned for single-family residential use on minimum 1-acre sites. In 1968 plaintiff purchased a portion of the foothill property; it is the land so purchased which is the subject of the instant action.

During the year 1969 the City commenced land-use studies of its foothills. Two years later it 'adopted an amendment to its General plan re-classifying over 90% of the undeveloped foothills' (over 5,900 acres, including plaintiff's 750 acres) to 'Open Space and/or Conservation and Park' uses. Thereafter by successive ordinances plaintiff's land was rezoned to 'O-S (Open Space),' with 'new land use restrictions and regulations to carry out the following stated purpose:

'. . . The purpose and intent of this district is (a) to protect the public health, safety and welfare; (b) to protect and preserve open space land as a limited and valuable resource; (c) to permit the reasonable use of open space land, while at the same time preserving and protecting its inherent open space characteristics to assure its continued availability for the following: as agricultural land, scenic land, recreation land, conservation or natural resource land; for the containment of urban sprawl and the structuring of urban development, and for the retention of land in its natural or near natural state to protect life and property in the community from the hazards of fire, flood and seismic activity; and (d) to coordinate with and carry out federal, state, regional, county, and city open space plans.'

'On or about November 29, 1972, defendant City publicly announced that the open space rezoning . . . 'signified that one of Palo Alto's greatest assets--its green and golden foothills--would be conserved as backdrop to the city for generations to come.' At the same time, defendant declared that '. . . a public trails and path system, which is being designed for the foothills, will allow Palo Altans to enjoy the open space."

'Although said Open Space zoning regulations [were later modified to] purport to permit, in part, construction of one-family dwellings on the property, such construction is expressly limited to 10-acre minimum lots with a maximum of impervious area and building coverage of 3.5 per cent, and with all such lots devoted to an Open Space Use as therein defined as follows: '. . . 'Open Space Use' means the use of land for (1) Public recreation (2) Enjoyment of scenic beauty (3) Conservation of use of natural resources (4) Protection of man and his artifacts (5) Protection of man and his artifacts (buildings, property, etc.) (6) Containment and structuring of urban development." (Emphasis added.)

A 'Staff Report On Regulation To Preserve Foothills Open Space' was prepared by the City's Director of Planning and Community Development and adopted, at least in substantial effect, by the City. Among other things, it recited:

'[T]he City Council directed the staff to pursue all available means toward achieving the open space objective in the Foothills including the exploration of methods and resources available for acquisition. This was followed by the amendment to the Palo Alto General Plan designating uses for the Foothills as open space, conservation, and/or parks which formally established the City's policy in this respect. Subsequently, the Planning Commission requested the staff to pursue ways to achieve the open space objective other than by acquisition.

'. . .

'There have been various studies and lengthy deliberations by the Planning Commission and City Council focused on the Foothills during the last few years. These studies and deliberations resulted in the amendment to the General Plan to designate the Foothills for Open Space, Conservation and/or Park uses, and in the recent adoption of the Open Space Element. In consideration of the newly recognized crisis of constantly diminishing open space, implementation of the adopted policies is in order. Zoning controls to protect and preserve natural resources (including protecting against hazards), agricultural resources, recreation areas, scenic areas, watershed lands, and wildlife areas, and, particularly when situated close-in or near urbanized concentrations, are not only desirable but also necessary.'

Three alternative methods for achieving the City's 'open space, conservation and/or parks' goal for the foothills were submitted by the 'Staff Report.'

Recommended was 'Alternative 3' as follows:

'3. Adopt a new zoning ordinance regulation (and apply it to the Foothills) similar to Alternative 2 above, but recognizing open space as a land use of a stature equal to all other categories. Such an ordinance would be significantly more restrictive in respect to parcel size and the amount of building coverage permitted under Alternative 2 above. An additional regulation would put a limit on the total permitted impervious area. . . .' [Emphasis in original.]

'Alternative 3 is innovative in that it goes beyond the traditional large lot zoning concept and recognizes open space as a valuable resource worthy of preservation for not only the present but also future generations. It allows a reasonable use of the land consistent with the open space goal in the Foothills at a 10 acre minimum lot size. Since the development controls and site and design review would prescribe how and where the impervious areas (those areas covered by buildings, terraces, pools, roads, etc., which will not absorb rainwater) shall be placed; how the roads, structures, and other improvements shall harmonize with the existing natural landscape, and to what extent the natural landscape shall be altered by exotic landscape materials as well as the buildings and roads, therefore, the essence of the natural state of the open space will be retained. A paths and trails system will be planned which will allow public access through the Foothills lands.

'. . .

'One important consideration that cannot be overlooked in any zoning proposal is the effect on the property owner. It is most important that he be allowed a reasonable use of his land. The long established 1-acre (R-E) and 5-acre (A-C) zones appear to meet this criteria without any question. At 10, 20, or 40 acres the restriction on the property owner increases. In respect to the value of the property, we can reasonably expect that large acreage mountain homes would have a definite market, particularly when located 'close-in' to the metropolitan area. In this respect, we have existing examples in the Los Altos Hills, Portola Valley, and Woodside areas.

'Considering the various environmental, ecological, aesthetic, and legal factors involved, Alternative 3 with a minimum parcel size of 10 acres is recommended as a reasonable balance between achieving the open space objectives on the one hand and allowing a reasonable (although more restricted) use of property on the other hand. It is suggested that the resultant ordinance be designated O-S, Open Space. . . .' 2

Reviewing other authority, California's Supreme Court in Holtz v. Superior Court (1970) 3 Cal.3d 296, 303, 90...

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3 cases
  • Eldridge v. City of Palo Alto
    • United States
    • California Court of Appeals Court of Appeals
    • April 23, 1976
  • Sloat v. Turner, 8286
    • United States
    • Nevada Supreme Court
    • April 28, 1977
    ... ... Gen., and D. Michael Clasen, Deputy Atty. Gen., Carson City, for respondents and cross-appellants ... [93 Nev. 264] OPINION ... 688 (1975); Eldridge v. City of Palo Alto, 51 Cal.App.3d 726, 124 Cal.Rptr. 547 (1975); Holtz ... ...
  • Gold Run, Ltd. v. Board of County Com'rs
    • United States
    • Colorado Court of Appeals
    • June 10, 1976
    ... ... as a remedy for allegedly confiscatory rezoning, such as Eldridge v. Palo Alto, 124 Cal.Rptr. 547; and California v. Southern Pacific ... ...

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