Friedman v. City of Fairfax

CourtCalifornia Court of Appeals
Writing for the CourtRACANELLI
Citation146 Cal.Rptr. 687,81 Cal.App.3d 667
PartiesMax FRIEDMAN, Marin Town and Country Club, Inc., Plaintiffs and Respondents, v. CITY OF FAIRFAX, Defendant and Appellant. Civ. 40112.
Decision Date07 June 1978

Page 687

146 Cal.Rptr. 687
81 Cal.App.3d 667
Max FRIEDMAN, Marin Town and Country Club, Inc., Plaintiffs and Respondents,
v.
CITY OF FAIRFAX, Defendant and Appellant.
Civ. 40112.
Court of Appeal, First District, Division 1, California.
June 7, 1978.
Hearing Denied Aug. 10, 1978.

[81 Cal.App.3d 669]

Page 688

Wallace S. Myers, City Atty., Town of Fairfax, San Rafael, for defendant and appellant.

Freitas, Allen, McCarthy, Bettini & MacMahon by Bryan R. McCarthy, San Rafael, for plaintiffs and respondents.

Evelle J. Younger, Atty. Gen., E. Clement Shute, Jr., Asst. Atty. Gen., Marc B. Mihaly, Deputy Atty. Gen., for the People of the State of California and amici cities.

RACANELLI, Presiding Justice.

Defendant City of Fairfax, a general law city (hereafter City), appeals from a judgment entered following a bifurcated trial awarding respondents $1,200,000 damages

Page 689

as just compensation for the inverse condemnation of their property, attorney fees in the sum of $115,000 and costs. On appeal, City contends that the material findings do not support the judgment of inverse condemnation and are unsupported by the evidence. Our review of the record, in light of governing principles, compels the conclusion that the City's contention is well founded and dispositive of this appeal. Accordingly, we reverse the judgment.

The appeal focuses upon a classic example of competing interests in regulating land use: the interest of a small suburban city in preserving [81 Cal.App.3d 670] open-space land through the exercise of its sovereign police powers conflicting with the interest of ownership in maximizing the profitable use of private property. 1

Background

We trace the factual and procedural history in light of the evidence relevant to our discussion:

The subject property, a registered California historical landmark commemorating the original homesite of the distinguished early settler, Lord Charles Fairfax, is located wholly within the boundaries of the City. It consists of two adjoining parcels approximately 231/2 acres in size and several lots comprising an additional 11/2 acres. During the earlier decades of the century, it was utilized for a variety of business purposes, including a restaurant establishment, a recreational facility for employees of a major retail store, and briefly as a school for boys. In 1941, respondents (hereinafter Friedman) 2 acquired the property then zoned for commercial use; that classification permitted inter alia commercial recreational facilities as a principal use and multiple residential dwellings as a conditional use. The property abutted land areas zoned for highway commercial, single-family and multiple-family residential uses. At the time of acquisition, the property contained a number of improvements including a clubhouse, swimming pool, employees' dormitories, tennis courts, and bleachers. Thereafter Friedman made several additional and remodeling improvements, including added swimming pools, restaurant buildings, a dance pavilion, summer cottage apartments, fully equipped picnic areas and related auxiliary facilities. From 1941 through mid-1972, Friedman conducted a commercial recreational enterprise on the property under the style of Marin Town & Country Club, open to the general public upon payment of an admission fee. At the conclusion of the 1972 summer season, Friedman terminated general business operations for economic reasons; the rental units continued to be leased producing an average monthly revenue of $5,000.

[81 Cal.App.3d 671] As early as 1964, the City expressed interest in acquiring the property for preservation and use as a public park; however, no formal action was ever authorized or undertaken. In January 1968, the City adopted a general plan (see Gov.Code, § 65300 et seq.) which designated the property for its then existing commercial-recreational use. Thereafter, the City undertook a comprehensive rezoning study of the entire City and conducted a number of public hearings extending through early 1973 concerning the proposed adoption of ordinance No. 352, a city-wide zoning ordinance. The ordinance, consistent with the general plan, provided for rezoning of the subject property for private commercial-recreational (CR) use. 3 The future use of the property soon

Page 690

became the subject of considerable public interest and discussion. In August 1970, a member of the planning commission voiced an opinion that the property be retained as a public recreational area. In May 1971, the city council directed an inquiry whether the county planned to acquire the property; a negative reply was received. During a city council meeting in July 1971, a number of possible methods to fund public acquisition were discussed; a motion requesting the aid of the county and a neighboring city to preserve the site for recreational purposes was made and tabled. In the following month, the city council directed its administrator to investigate the availability of federal funds for purpose of acquisition and to develop a cost analysis of the property's utility as a recreational area.

[81 Cal.App.3d 672] Meanwhile, during the same period (1971), it was revealed that Friedman had entered into an agreement to sell the property for proposed development of several hundred units of multiple residential dwellings. The disclosure generated intense public discussion resulting in the formation of a citizens' organization called "Protect Land and Nature" (PLAN) whose principal objective was to resist the proposed development through circulating petitions urging the city council to adopt the proposed ordinance. Eventually, the momentum of citizen support concentrated on a successful effort to qualify an initiative measure rezoning the subject property as commercial-recreational (CR) in exactly the same manner and language as proposed under ordinance No. 352 (art. 39). 4 That measure was adopted at the general municipal election held on April 11, 1972. Notwithstanding, city officials continued with public hearings on ordinance No. 352 as a result of uncertainty concerning the validity of the initiative rezoning ordinance. Friedman promptly instituted litigation successfully challenging the validity of the initiative ordinance under the then existing law; on appeal, summary judgment in favor of Friedman was ultimately reversed and the initiative ordinance declared valid. 5

Page 691

Upon enactment of ordinance No. 352 on February 13, 1973, Friedman initiated the instant litigation seeking damages for inverse condemnation resulting from passage of the ordinance, a declaration that the ordinance was constitutionally invalid, and for other relief. The trial court made extensive findings of fact (discussed infra) in support of its [81 Cal.App.3d 673] judgment that the property had been inversely condemned for public use by enactment of ordinance No. 352, and following a court trial on the issue of damages, fixed damages in the amount stated as just compensation for the property and improvements thus "taken." During this phase of trial, uncontroverted evidence established that a portion of the property could be successfully operated as a tennis club, a currently popular recreational use expressly permitted under the CR zone and acknowledged by the trial court in its notice of intended decision. While the evidence of fair market value of the property both before and after rezoning varied considerably, the evidence most favorable to Friedman (established through testimony of a valuation expert called by Friedman) reflected a "before" fair market value of $1,250,000 diminished to a value of $250,000 in its rezoned condition. 6

We first review the posture of the pleadings and the questioned findings.

The Pleadings

Plaintiff's second amended complaint imprecisely pleaded several theories of relief, namely: (1) inverse condemnation (count I) and (2) a declaration of invalidity of the zoning ordinance as inconsistent with the general plan (count II), improper "spot zoning" (count III), and an abuse of discretion in failing to proceed as required by law (count V); the fourth count, repleading the substantive allegations of count I, sought relief in the form of multiple family residential zoning. After its general and special demurrers were overruled, City filed its answer which (in addition to general denials) specially pleaded a failure to state a cause of action, the long-standing commercial-recreational use of the property and its unique suitability for such continued use.

Findings and Conclusions

At the conclusion of the first phase of trial, the trial court made numerous although somewhat repetitious findings which may be conveniently summarized as follows:

Past use : Since acquiring the property in 1941, Friedman (as sole beneficial user) successfully operated the commercially zoned property as a single unit devoted to mixed commercial-recreational uses. In 1967, the commercial-recreational use [81 Cal.App.3d 674] had become generally unprofitable and, in 1972, was discontinued as no longer economically feasible. The 1973 comprehensive rezoning ordinance expressly permitted similar commercial recreational activities;

Beneficial use : The newly-created CR zoning is not "economically feasible" and precluded any "reasonably viable economic use" of the property in any manner "consistent with its value," leaving Friedman with "no choice" except to leave the property in its present condition until its eventual public acquisition.

Taking for public use : Through the combined actions and statements of city officials and citizens extending over several years, an intention was manifested to prevent "any (other) development" of the property, whose acquisition was sought as an integral part of an open-space program...

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10 practice notes
  • Suter v. City of Lafayette, No. A073743
    • United States
    • California Court of Appeals
    • September 16, 1997
    ...Cruz Counties v. Superior Court (1974) 13 Cal.3d 225, 233, fn. 8, 118 Cal.Rptr. 158, 529 P.2d 582; Friedman v. City of Fairfax (1978) 81 Cal.App.3d 667, 677, 146 Cal.Rptr. As the operation of a firearm dealership is a commercial enterprise, there is a rational basis for confining that opera......
  • Terminal Plaza Corp. v. City and County of San Francisco
    • United States
    • California Court of Appeals
    • February 24, 1986
    ...no more than a possible restriction upon more economic uses of its property, which as observed in Friedman v. City of Fairfax (1978) 81 Cal.App.3d 667, 677-678, 146 Cal.Rptr. 687, "is simply testimonial to the 'price of living in a modern enlightened and progressive community.' " (Quoting M......
  • Blodgett v. County of Santa Cruz, No. C-80-1077 WHO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 23, 1981
    ...unreasonable. Penn Central Transportation Co. v. New York City, supra, 438 U.S. at 132, 98 S.Ct. at 2663; see also Friedman v. Fairfax, 81 Cal. App.3d 667, 146 Cal.Rptr. 687 Plaintiffs have failed to controvert the affidavits and statements of defendants. In their motion for reconsideration......
  • Agins v. City of Tiburon, S.F. 23866
    • United States
    • United States State Supreme Court (California)
    • March 14, 1979
    ...of the police power into a lawful taking for which compensation in eminent domain must be paid. (See Friedman v. City of Fairfax (1978) 81 Cal.App.3d 667, 678, 146 Cal.Rptr. 687.) To the extent that Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613, 129 Cal.Rptr. 575, is contrary, it i......
  • Request a trial to view additional results
10 cases
  • Suter v. City of Lafayette, No. A073743
    • United States
    • California Court of Appeals
    • September 16, 1997
    ...Cruz Counties v. Superior Court (1974) 13 Cal.3d 225, 233, fn. 8, 118 Cal.Rptr. 158, 529 P.2d 582; Friedman v. City of Fairfax (1978) 81 Cal.App.3d 667, 677, 146 Cal.Rptr. As the operation of a firearm dealership is a commercial enterprise, there is a rational basis for confining that opera......
  • Terminal Plaza Corp. v. City and County of San Francisco
    • United States
    • California Court of Appeals
    • February 24, 1986
    ...no more than a possible restriction upon more economic uses of its property, which as observed in Friedman v. City of Fairfax (1978) 81 Cal.App.3d 667, 677-678, 146 Cal.Rptr. 687, "is simply testimonial to the 'price of living in a modern enlightened and progressive community.' " (Quoting M......
  • Blodgett v. County of Santa Cruz, No. C-80-1077 WHO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 23, 1981
    ...unreasonable. Penn Central Transportation Co. v. New York City, supra, 438 U.S. at 132, 98 S.Ct. at 2663; see also Friedman v. Fairfax, 81 Cal. App.3d 667, 146 Cal.Rptr. 687 Plaintiffs have failed to controvert the affidavits and statements of defendants. In their motion for reconsideration......
  • Agins v. City of Tiburon, S.F. 23866
    • United States
    • United States State Supreme Court (California)
    • March 14, 1979
    ...of the police power into a lawful taking for which compensation in eminent domain must be paid. (See Friedman v. City of Fairfax (1978) 81 Cal.App.3d 667, 678, 146 Cal.Rptr. 687.) To the extent that Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613, 129 Cal.Rptr. 575, is contrary, it i......
  • Request a trial to view additional results

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