Helix Land Co. v. City of San Diego

• Decision Date: 19 July 1978
• Citation: 147 Cal.Rptr. 683,82 Cal.App.3d 932
• Court: California Court of Appeals Court of Appeals
• Parties: HELIX LAND CO., INC., et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents. Civ. 14802.

Page 683

147 Cal.Rptr. 683

82 Cal.App.3d 932

HELIX LAND CO., INC., et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents.

Civ. 14802.

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

July 19, 1978.

Albert E. Walkoe, Jennings, Engstrand & Henrikson and C. Michael Cowett, San Diego, for plaintiffs and appellants

Evelle J. Younger, Atty. Gen., Jeffrey T. Miller, Deputy Atty. Gen., John W. Witt, City Atty. and Donald W. Detisch, Deputy City Atty., for defendants and respondents.

STANIFORTH, Associate Justice.

We confront here the single issue of whether Helix Land Company (Helix), owners of land in the Tia Juana River Valley, can state a cause of action in inverse condemnation or nuisance against defendants City of San Diego, its counsel and certain of its officers (City), and/or the State of California, its Secretary of the Resources Agency and Director of State Parks (State) for their various actions or inactions in land use control which, Helix argues, resulted in the deprivation of All economic use of their property.

Helix's thirteen-count complaint sought damages and equitable relief from defendants on a variety of legal premises. General demurrers to all counts were sustained without leave to amend. On appeal, Helix has "elected to proceed" on inverse condemnation and nuisance theories only.

FACTS

We assume for purposes of this proceeding the truth of any properly pleaded factual allegations contained in the complaint. (Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241.) However, since the demurrers were sustained without leave to amend, we consider other relevant matters of which the trial court could have taken notice. (Evid.Code § 452.) Where a demurrer is sustained without leave to amend, we may treat such matters if relevant as having been pleaded. (Weil v. Barthel, 45 Cal.2d 835, 837, 291 P.2d 30.)

The facts detailed in the pleading, as well as those which we judicially notice, are: Helix is the owner of substantial lands in the Tia Juana River Valley adjacent to the Mexican border. In 1944 the United States entered into a treaty with the Republic of Mexico calling for the construction of a flood control channel in Mexico and the United States to drain the flood waters of the Tia Juana River safely into the Pacific Ocean. In 1962 a public hearing was held in San Diego where interested state agencies expressed concurrence with that project. In 1964 the Governor of the State of California wrote to the International Boundary and Water Commission concurring in the finding there was an urgent need for that project. In 1968 the Legislature of the State of California enacted California Water Code sections 12744-12744.2 providing for state funding for the acquisition of rights of way for such a flood control project.

The State Legislature by Concurrent Resolution 65 (adopted November 2, 1971), proposed a re-evaluation of land use in the Tia Juana River Valley. In July 1972 the Resources Agency of the State of California in response to Resolution No. 65 issued its "Review of Land Uses in the Tia Juana River Valley" in which it was recommended:

"1. 'Estuarine and parklands designated in Exhibit C of this Report be acquired for public use.'

"2. 'The State explore all alternatives for public acquisition of lands designated in Exhibit C including:

a. Corps of Engineers acquisition of all or a portion of the flood plain.

b. Inclusive in area of Parks and Recreation budget.

c. Special State appropriation.

d. Personalized license plate funds.

e. Land and water conservation funds.'

"3. 'That the City of San Diego, County of San Diego and City of Imperial Beach be solely responsible to develop the studies and information necessary for the evaluation of alternatives of land use and flood control in the lower Tijuana River Basin; and that such studies will incorporate the concepts of proposed land uses prescribed by the Department of Parks and Recreation and the Department of Fish and Game in their respective plans and reports which concern the California Resources Agency's interest within the Tijuana River Basin.' "

This report was filed with the Legislature and the Resources Agency was then instructed to prepare a final report based on The preliminary and final reports of the State Resources Agency called for "Development and Analysis of Feasible Alternatives to the Proposed Concrete Line Channel."

the content, conclusions and recommendations of its preliminary report. The final report containing the same recommendation was filed with the Legislature by the Resources Agency in December 1972.

The State further caused to be published as part of its official publication "1974 Park Bond Act Projects Recommended for Acquisition and Development." The Helix properties were listed as a number two priority acquisition proposed to be purchased with funds from the Bond Act. On June 8, 1974, the voters of the State approved the 1974 Bond Act (Proposition 1). More recently, Helix properties have been appraised by the State.

Paralleling this activity of the State, Helix charges the City and its agency with these acts: The Helix lands were annexed to the City in 1957. That same year the City placed the Helix lands with other newly annexed property into an interim agricultural zone classification (ordinance 7606 new series). Fifteen years later the interim designation was removed (ordinance 10862 new series, adopted July 29, 1972) and the agricultural classification (A-1-10) became the permanent zoning.

In addition, the City adopted ordinances establishing floodway (FW) and flood plain fringe (FPF) zones. (San Diego Municipal Code §§ 101.0403, 101.0403.1 and definitions in §§ 101.0101.57 through 101.0101.61.) These flood zone classifications have not yet been applied to Helix's lands.

Helix asserts the actions of the City in adopting these zoning ordinances were taken to preclude any economic use of plaintiffs' property; their sole purpose was to depreciate the value of plaintiffs' property in order to be later acquired at drastically depressed prices for greenbelt, open-space, park, recreational or other public purposes.

Helix alleged their property has been, since before 1959, and is now totally unsuited for agricultural purposes because of salt water intrusion: by reason thereof any economic agricultural use of plaintiffs' property is impossible. By the City's continuing Helix's property in the A-1-10 zone, Helix is "totally precluded" from being able to make any productive use of their property.

The complaint further alleged, pursuant to the 1944 treaty, various negotiations, resolutions, commitments and agreements were made by which City, State, the United States and the Republic of Mexico agreed to construct adequate flood control facilities.

In 1964, the United States Army Corps of Engineers proposed a trapezoidal concrete flood control channel of overall width of 670 feet and 5.5 miles in length from the Mexican border to the Pacific Ocean. A similarly designed channel was agreed to be built in Mexico by the Republic of Mexico to connect at the international border with the coordinated United States project. Funding for the United States project was approved by both Congress and State. City declared its intention to participate in the funding for the channel. Following these commitments and agreements, Mexico proceeded and has completed (excepting the last 400 meters) a concrete flood control channel which leads directly to and empties across the international border at the site of the proposed dissipator channel.

After these agreements, and the actual construction by Mexico, the following events occurred with respect to the Tia Juana River Valley Flood Control Project in which the United States, City and State were actors, co-participants.

In response to Assembly Concurrent Resolution 65 (November 2, 1971) and a draft environmental impact statement prepared by the United States Army Corps of Engineers, the City reevaluated its land use plans for the Tia Juana River Valley and at that time requested the United States Army Corps of Engineers (the design agency for the International Boundary Water Commission a federal agency under the United States Secretary of State) to reevaluate the design for the flood control channel.

The Corps of Engineers responded and provided alternative design plans. This new design, known as the dissipator dike structure, was endorsed by City as the most preferable.

Congress approved the modified flood control structure and then President Ford signed the amended federal statute. The Mexican government, through its Commissioner, endorsed the modified design and a minute order (amendment to the treaty) has been entered into between the Mexico section of the International Boundary and Water Commission and the United States section of the International Boundary and Water Commission approving the modified design.

Helix concludes from these acts City, in cooperation with officials of State, "torpedoed" the United States' participation in the concrete-lined channel project, specifically by the unilateral rescission of its prior agreements and by its refusal to carry out its "statutory obligations" to acquire rights-of-way necessary to the construction of the flood control channel.

Helix charges as a result of these actions and nonactions, the construction of the concrete-lined channel on the United States' side of the border has been prevented. Flood waters will now be diverted by the completed Mexican channel and will flow into the United States thereby subjecting Helix's property to a far greater threat of flooding than theretofore existed. Moreover, they assert their property will be subjected to raw and untreated sewage and other chemicals and substances injurious to the health of plaintiffs and to their lands.

The complaint alleges damages in these terms: "As a consequence of the matters hereinafter set...