Kelsey v. Colwell, Cr. 1745

• Decision Date: 15 February 1973
• Docket Number: Cr. 1745
• Citation: 30 Cal.App.3d 590,106 Cal.Rptr. 420
• Court: California Court of Appeals Court of Appeals
• Parties: Horace KELSEY et al., Petitioners and Appellants, v. Hal F. COLWELL et al., Respondents.

Page 420

106 Cal.Rptr. 420

30 Cal.App.3d 590

Horace KELSEY et al., Petitioners and Appellants, v. Hal F. COLWELL et al., Respondents.

Cr. 1745.

Court of Appeal, Fifth District, California.

Feb. 15, 1973.

Hearing Denied April 25, 1973.

[30 Cal.App.3d 591] Baker, Ancel & Redmond, Mark G. Ancel, Los Angeles, for petitioners and appellants.

Russell M. Koch, County Counsel of Merced County, Merced, for respondents.

OPINION

GARGANO, Associate Justice.

Appellants who are owners of agricultural lands in Merced County brought this action in the court below to compel the respondent board of supervisors to implement the California Land Conservation Act of 1965 in Merced County. Appellants took the position that the act imposed a mandatory duty upon each city and county having a general plan to implement its provisions. It was also appellants' position that the respondent board had taken certain preliminary steps which irrevocably committed the board to implement the act in Merced County.

After a court hearing appellants' petition was denied; the judge determined that the act was permissive, not mandatory, and that the Merced Board of Supervisors was not committed irrevocably to implement the act in that county. The judge, then, volunteered:

'. . . by reason of the discretion given to each county as to whether or not it will adopt the Williamson Act within such county, the Williamson Act clearly violates the equal-protection clause of the Fourteenth Amendment to the United States Constitution in that it places farmers competing in the open market in an unfair economic position, depending upon whether the county in which their particular property was located was offering and utilizing the benefits and burdens of the Williamson Act.'

Appellants have appealed; they ignore the constitutional question and raise the same two issues argued in the court below.

The California Land Conservation Act of 1965, also known as the Williamson Act, is set forth in chapter 7, title 5, commencing with section 51200 of the Government Code. ¹ Briefly, the act is implemented by a city or county through the establishment of agricultural preserves consisting of agricultural and other vacant lands, and the execution of long term contracts with land owners who are willing to restrict the land uses of their property to agricultural and similar endeavors; thereafter, the lands must be assessed for city or county tax purposes according to the restricted land use, not necessarily the highest and best use. (Cal.Const. art XXVIII; Rev. and Tax.Code § 402.1.) The pertinent sections of the Government Code are sections 51230 and 51240.

Section 51230 provides:

'Beginning January 1, 1971, any county or city having a general plan, and until December 31, 1970, any county or city, by resolution, and after a public hearing May establish an agricultural preserve. Notice of the hearing shall be published pursuant to Section 6061 of this code, and shall include a legal description, or the assessor's parcel number, of the land which is proposed to be included within the preserve. Such preserves shall be established for the purpose of defining the boundaries of those areas within which the city or county will be willing to enter into contracts pursuant to this act. An agricultural preserve shall consist of no less than 100 acres; provided, that in order to meet this requirement two or more parcels may be combined if they are contiguous or if they are in common ownership.

'A county or city may establish agricultural preserves of less than 100 acres if if finds that smaller preserves are necessary due to the unique characteristics of the agricultural enterprises in the area And that the establishment of preserves of less than 100 acres is consistent with the general plan of the county or city.

'An agricultural preserve may contain land other than agricultural land, but the use of any land within the preserve and not under contract shall within two years of the effective date of any contract on land within the preserve be restricted by zoning or other suitable means in such a way as not to be incompatible with the agricultural use of the land, the use of which is limited by contract in accordance with this chapter.

'Failure on the part of the board or council to restrict the use of land within a preserve but not subject to contract shall not be sufficient reason to cancel or otherwise invalidate a contract.' (Emphasis added.)

Section 51240 provides:

'Any city or county may by contract limit the use of agricultural land for the purpose of preserving such land pursuant and subject to the conditions set forth in the contract and in this chapter. A contract may provide for restrictions, terms and conditions, including payments and fees, more restrictive than or in addition to those required by this chapter.'

Ordinary doctrines of statutory construction compel the conclusion that the term 'may' was used in sections 51230 and 51240 in its permissive sense. (Gov.Code §§ 5, 14; Santa Cruz R.P. Co. v. Heaton, 105 Cal. 162, 38 P. 693; Hofacker v. Board of Supervisors, 264 Cal.App.2d 290, 292--293, 70 Cal.Rptr. 374.) Section 51230 not only states that cities and counties May establish agricultural preserves, but the section also states that 'such preserves shall be established for the purpose of defining the boundaries of those areas within which the city or county Will be willing to enter into contracts pursuant to this act.' And, while section 51240 provides that 'any city or county May by contract limit the use of agricultural land', the succeeding section directs that '(i)f such a contract is made with any landowner, the city or county Shall offer such a contract under similar terms to every other owner of agricultural land within the agricultural preserve in question.' (§ 51241.)

Appellants' contention that the Williamson Act requires counties and cities to establish agricultural preserves is also refuted by legislative history. In 1970, and 1971, proposals were presented to the Legislature to amend the act, changing, among other things, sections 51230 and 51240, in order to substitute the word 'shall' for the word 'may' in each section. On both occasions the legislative counsel reported that if the amendments were adopted, counties and cities authorized to implement the act would be required to establish agricultural preserves and to enter into contracts with landowners unless specific findings were made to the contrary; thereafter, the Legislature rejected the proposed amendments.

The thrust of appellants' argument is that the California Land Conservation Act of 1965 was adopted to subserve a statewide purpose and when this statewide purpose is considered in conjunction...