Kinzli v. City of Santa Cruz

• Decision Date: 29 October 1985
• Docket Number: No. C-80-2863-MHP.,C-80-2863-MHP.
• Citation: 620 F. Supp. 609
• Court: U.S. District Court — Northern District of California
• Parties: Margaret KINZLI, Evelyn Goossen, Philip Kinzli and Ernest Kinzli, Plaintiffs, v. CITY OF SANTA CRUZ, Defendant.

620 F. Supp. 609

Margaret KINZLI, Evelyn Goossen, Philip Kinzli and Ernest Kinzli, Plaintiffs, v. CITY OF SANTA CRUZ, Defendant.

No. C-80-2863-MHP.

United States District Court, N.D. California.

October 29, 1985.

COPYRIGHT MATERIAL OMITTED

Jess S. Jackson, Jackson, Jacobsen & Banke, San Francisco, Cal., for plaintiffs.

Neal R. Anderson, Gerald D. Bowden, Atchison, Anderson & Daley, Santa Cruz, Cal., for defendant.

AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND MEMORANDUM DECISION

PATEL, District Judge.

Plaintiffs have instituted this action on a variety of theories and jurisdictional grounds. The gravamen of the particular claims submitted to the court for trial at this stage of the proceedings is that the adoption of Measure O deprives them of their property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution. A claim for damages and other relief is made pursuant to 42 U.S.C. § 1983. Plaintiffs have also alleged violations under §§ 1985 and 1986 of Title 42. A pendent state claim for inverse condemnation is grounded on the same facts.

The matter was tried to the court on two issues: whether the controversy is ripe for adjudication and, if so, whether there has been a taking of plaintiffs' property.

FINDINGS OF FACT

I. Background

A. The Kinzli Property

Plaintiffs are a widow and her three children. The property which is the subject of this action has been in the family since 1925 when the total parcel of 74.9 acres was purchased for $25,000. From 1925 to 1944 the family operated a dairy on the property. The property was leased as a dairy from 1944 to the early 1960's. Since that time the family has held the property as an investment and used it for cattle grazing.

During the early 1970s the City of Santa Cruz ("City") grew. Gradually the Kinzli property, which retains its rural character, has become surrounded by urban development.

Portions of the property have previously been acquired by the City and the Santa Cruz Port District. Another portion lies outside the City limits.

In 1968, the City filed a condemnation action in state court to acquire approximately 4 acres of the property for construction of a public street. The street was never constructed and that is the subject of another part of this action not discussed here. As a result of the condemnation action plaintiffs currently hold two parcels totalling 62 acres with a City-owned right-of-way between them.

An application for a lot split for 2½ acres was approved by the City in 1979 subject to certain conditions, including one requiring removal of advertising signs which provide a total income of approximately $100 to $150 per year. The application was submitted to the Regional Coastal Zone Conservation Commission and subsequently withdrawn by the Kinzlis.

The property is and has for a substantial period of time been zoned primarily R-1-5, which permits single-family residences with a minimum lot size of 5,000 sq. ft. A small portion of the property is zoned commercial and another small portion is zoned flood plain. The property is served with water, sewer and other utilities.

From at least 1970 when a stipulated judgment was entered in condemnation proceedings, the City represented to plaintiffs that a thoroughfare would be built joining an existing street on the west side of the property with an existing street on the east side of the property. This would of course substantially benefit the property by providing greater access. In addition, plaintiffs were assured by the City that development of the property would be permitted for commercial purposes and for residential purposes at a greater density. The Kinzlis delayed sale or development in reliance on these proposals and, indeed, it appears that the proposals continued to remain viable in some form until at least October 1978, since the City filed another condemnation action to acquire an additional piece of plaintiffs' property for modification of the right-of-way. The second condemnation action was abandoned. The property in question now consists of 62 acres situated on the eastern border of the City.¹ It is bounded on the south by the Santa Cruz harbor, on the north by Capitola Road, on the west by Agnes Street and on the east by the City limits.

The upper portion of the property is relatively level consisting of a grassy plain with virtually no trees. The lower portion dips toward a wetlands area and overlooks the upper yacht harbor. A natural drainage course, Arana Gulch, borders one side; another gulch lies along the western boundary. The only structures on the property are an old house in need of repair and a barn.

There are several constraints on the property or portions of it, including flood plains, liquefaction potential during seismic activity and possible landscape effects on the western slope.

For at least the last five years the property has not produced a profit. The taxes are approximately $5,360 per annum. The gross income for at least the last five years has not exceeded the property taxes.

B. The Adoption of Measure O

On March 6, 1979 the voters of the City adopted an initiative ordinance entitled "City of Santa Cruz Measure O Greenbelt and Low Growth General Plan Policy Ordinance" ("Measure O"). Subsequently the Santa Cruz City Council enacted two ordinances implementing Measure O: 1) Ordinance No. 79-9 adopted March 13, 1979 and commonly referred to as the Moratorium Ordinance; and 2) Ordinance No. 80-02 adopted January 22, 1980, effective February 21, 1980 and commonly known as the Greenbelt Overlay Ordinance.²

The announced purpose of Measure O is to require revisions of the General Plan in order to limit City growth and to preserve certain lands described as greenbelt land. The Kinzli property falls within the greenbelt as described in Measure O. The remaining property subject to Measure O forms a ridge or belt along the north and northwest City limits of Santa Cruz. The Kinzli property is the only greenbelt property completely surrounded by urban development.

Measure O limits the uses to which greenbelt land can be put through the year 1990. Sec. 3 of the Measure provides for the following uses:

1) Timber production and harvesting

2) Agriculture, including grazing

3) Private recreation

4) Public recreation

5) Wildlife habitat

6) Watershed or groundwater recharge

7) Scientific or educational purposes which maintain the open space character of the land

8) Other uses which maintain the open space character of the land.

In addition, Sec. 4 of the Measure prohibits the City from providing to these lands additional urban services, including water, sewer and roads.

Apparently in an attempt to foreclose any modification of the initiative by City officials, Measure O also provides that no part of it "shall be amended or repealed except by a vote of the people." (Sec. 8) The Measure then goes on to require the City to revise the General Plan in accordance with the Measure within nine months of its effective date. (Sec. 5)

The City Council adopted a Moratorium Ordinance in order to comply with the Measure. That Ordinance proscribed the issuance of permits to build on the greenbelt lands for a period of nine months or until the City Council adopted a revision to the General Plan.

Approximately nine months later the Council adopted the Greenbelt Overlay Ordinance ("GBO"). Santa Cruz Municipal Code ch. 24.53, § 24.53.2000 (1981). Restating the provisions of Measure O, the Greenbelt Overlay allows the following uses of greenbelt lands upon the obtaining of a special use permit:

Timber production and harvesting

Agriculture, including grazing

Private recreation uses

Public recreation uses

Scientific or educational uses which maintain the open space character of the land

Single-family dwellings

Accessory buildings

Other uses which maintain the open space character of the land.

Id. § 24.53.2010. The Ordinance then provides that any other use "may be allowed by special use permit" if it is of the same general character as the uses enumerated and if it conforms to the purpose and intent of the Ordinance. Uses are required to be both "environmentally and visually compatible with the existing physical characteristics of the land, and permitted uses cannot have potential for significant effect on the environment in accordance with the definition contained in the California Environmental Quality Act (CEQA)." The Greenbelt Ordinance allows extension of urban services in the Overlay area only upon a finding that the use is consistent with the Ordinance and subject to the approval of the City Department of Water and Department of Public Works. Id. § 24.53.2040.

The City has acknowledged that prior to Measure O the property would probably have been developed as multi-family residential with the harbor side developed as visitor-commercial. Under the General Plan adopted in 1964 the property was designated for high density development. In subsequent years the City, like other municipalities, struggled to develop plans to meet growing urban demands and community preservation.

C. The Effect of Measure O on the Kinzli Property

The Kinzlis made their first serious attempt to sell the property in 1978. Conditional contracts of sale were entered into with potential buyers in 1978 and 1979 subject to receiving the necessary permits for development of a minimum of 250 residential units. The offer in 1978 was $2,137,500; the offer in 1979 was $2,300,000. Also in the summer and fall of 1978 a greenbelt ordinance began to be discussed publicly. It culminated in the passage of Measure O in March 1979.

The Kinzlis themselves never made application for a permit for any uses under Measure O. They are not financially or otherwise able to engage in any substantial development of the property. A potential purchaser/developer pursuant to a conditional purchase agreement completed and filed an application on behalf of...