Mid-Way Cabinet Fixture Mfg. v. San Joaquin County

• Decision Date: 19 December 1967
• Docket Number: MID-WAY
• Court: California Court of Appeals Court of Appeals
• Parties: CABINET FIXTURE MANUFACTURING, Appellant, v. COUNTY OF SAN JOAQUIN, and Richard G. Salter, as Director etc., Respondents. Civ. 11732.

Page 37

65 Cal.Rptr. 37

257 Cal.App.2d 181

MID-WAY CABINET FIXTURE MANUFACTURING, Appellant, v. COUNTY OF SAN JOAQUIN, and Richard G. Salter, as Director etc., Respondents.

Civ. 11732.

Court of Appeal, Third District, California.

Dec. 19, 1967.

Rehearing Denied Jan. 15, 1968.

Hearing Denied Feb. 14, 1968.

Forrest E. Macomber and A. Grant Macomber, Stockton, for appellant.

Richard W. Dickenson, County Counsel, by Gerald A. Sherwin, Deputy City Atty., Stockton, for respondents.

PIERCE, Prsiding Justice.

Petitioner Mid-Way Cabinet Fixture Manufacturing (Mid-Way) appeals from a judgment denying its petition for mandate to compel San Joaquin County (county) and its planning director to grant a use permit for building purposes minus allegedly invalid conditions imposed by the county, to wit: conveyance to the county of certain interests in real estate. Mid-Way owns real property between Stockton and Lodi on the northeast corner of Eight Mile Road and West Lane. West Lane runs north and south. Mid-Way's frontage thereon is 466 feet. Eight Mile Road runs east and west. Mid-Way's frontage on that road is 240 feet. Mid-Way operates a cabinet shop on the northerly portion of this property. The southerly portion is unimproved. Its original shop was built in 1959 under an unconditional use permit. The property has access to both roads but the shop's principal access is onto West Lane near the northwest corner of the property, and its parking area is located there. The use permit it seeks now is to enlarge its present operation by the construction of a small (16 feet by 44 feet) addition to its present shop and by constructing another building 48 feet south of its present shop. The size of the latter building (100 feet by 100 feet) would approximate in size the existing shop. Neither building would have any direct effect upon the county's future plans for either West Lane or Eight Mile Road. The county has adopted a 'Precise Plan' to convert West Lane into a four-lane expressway. The plan will involve the construction of an interchange at the West Lane-Eight Mile Road intersection. Mid-Way's property will lie within a 'bulb' of that intersection. Construction of that bulb will entail Mid-Way's loss of all-point direct access both to West Lane on the west and to Eight Mile Road, and substituted access will be via a 'return' road 50 feet wide extending from a 'Y' off of and onto West Lane at the northwest corner of the Mid-Way property, thence easterly along the north boundary thereof to the northeast corner, thence southerly along the east boundary to Eight Mile Road. A curve in the road where it takes off from West Lane in the northwest corner of the Mid-Way property and another curve where the north (east-west) leg of the 'return' road meets the east (or north-south) leg would be taken from Mid-Way. It would also lose 25 feet along its east boundary. (The other 25 feet would be acquired from Mid-Way's neighbor to the east--expectantly by gift.) The 'Precise Plan' was adopted October 29, 1963. In January 1964 a proceeding in eminent domain was commenced by the county to condemn certain access rights from Mid-Way and both lands and access rights from other landowners involved. (This condemnation action is still pending.) When, in April 1966, Mid-Way sought by use permit to enlarge its cabinet shop, the county, at the suggestion of its planning department, tacked conditions onto the granting of a use permit. These conditions were: that Mid- Way without compensation (1) convey to the county its access rights to West Lane and Eight Mile Road, and (2) convey to the county the lands for the construction of the 'return' road as shown on a map in evidence (and as described above). As a concession Mid-Way would be allowed to retain its direct access rights to West Lane and Eight Mile Road until the four-lane expressway was constructed. ¹

Mid-Way made a counteroffer. It offered to convey the access rights and lands demanded but with a right of reversion in the event the West Lane expressway construction (under the 'Precise Plan') was not commenced within three years. That counteroffer was unacceptable to the county. Both the supervisors and members of the planning commission expressed uncertainty regarding the timetable of expressway construction. There is, in the record, a marked vagueness as to when funds therefor might be expected to become available. The assistant director of Public Works made the statement that 'the theory of the precise plan, of course, is that the adjacent owners will be asked to develop the land for the frontage roads And intersections to conform to that plan and the County to build the four-lane facility.' (Emphasis added.) The 'Precise Plan' does, in fact, adopt that theory. There was a breakdown of negotiations and this action followed.

The trial court heard no evidence. It based its findings and its judgment on the record of the proceedings before the planning commission and board of supervisors. That record is before this court. Two of the court's findings are as follows:

'21. At said hearing before the Planning Commission, there was sufficient and substantial evidence introduced to allow the Planning Commission to reasonably conclude that the use permit, if granted, would substantially increase the vehicle traffic on West Lane and Eight Mile Road as a result of vehicles coming to and going from the subject property.

'22. At said hearing before the Planning Commission there was sufficient and substantial evidence introduced to allow the Planning Commission to reasonably conclude that if the use permit were granted, the traffic burden which the use of the subject property under the use permit would place upon Eight Mile Road and West Lane would be substantially greater than the traffic burden which is being place on said roads as the result of the existing uses of neighboring properties which are zoned Interim Highway Frontage.'

Our reading of the record of all hearings--those before the planning commission as well as those before the supervisors--gives not the slightest hint that there would be an appreciable increase in traffic. On the contrary, other than an inconsequential increase of truck deliveries from a possibly expanded cabinet shop output there will be no effect at all. Mid-Way's business is not retail. Neither the planning commission, its staff, nor the supervisors evinced any concern regarding present congestion of traffic or the possibility that that traffic would be enhanced because of proposed enlargement of the cabinet shop. In the immediate vicinity the area is mostly agricultural, although there are some farm houses, a few residences and a dairy some distance away. The purpose of the conversion of West Lane into an expressway was to create another highway between Stockton and Lodi to the west of and paralleling U.S. 99. (A third north-south highway still further west is involved.) Someday, in the unfixed and unstated future Eight Mile Road would be a link between these roads. No present plan covers the construction of the latter road. Not only were the public officials unconcerned regarding increased traffic because of Mid-Way's operation; they were unconcerned about area-produced traffic increases, period. On the contrary, the attitude of the planning commission was this: West Lane had been widened in 1964. At that time Mid-Way's existing cabinet shop had had to be moved. This had entailed considerable county expense. At the hearing before the planning commission, defendant planning director expressed the view: 'I think it's about time we got some performance from them.' The position of the board of supervisors was that because adjoining landowners generally benefit by an enhancement in the value of their lands when an expressway is constructed, such landowners should fairly be asked to Give access rights and lands over which the highways are built. Therefore, whenever a zoning ordinance (and particularly the 'use permit' granting or withholding power therein written) permits, the granting of a use permit should be conditioned upon free conveyances. ² That is the position of respondents here. We hold that they overestimate the extent of their powers.

EMINENT DOMAIN VERSUS THE POLICE POWER

Neither the federal government nor the state may commandeer private property. The federal government is prohibited from doing so under the Fifth Amendment of the United States Constitution: 'nor shall private property be taken for public use, without just compensation.' Such prohibition against the state is set forth in article I, section 14 of the California Constitution: 'Private property shall not be taken or damaged ³ for public use without just compensation.' The state is also prohibited by the Fourteenth Amendment of the United States Constitution, since 'without due process of law' has come to include 'without just compensation.' (Kratovil-Harrison, Eminent Domain--Policy and Concept (1954) 42 Cal.L.Rev. 596, 597.)

Theoretically, not superimposed upon but coexisting alongside the power of eminent domain is the police power, unwritten except in case law. It has been variously defined--never to the concordant satisfaction of all courts or legal scholars--and frequently it has been inconsistently applied by different courts (Michelman, Property, Utility, and fairness, Comments on the Ethical Foundations of 'just Compensation' Law (1967) 80 Harv.L.Rev. 1165; Kratovil-Harrison, op. cit., p. 608); sometimes, to our belief, by the same court. The police power is described more readily than it can be defined. It has been said to be no more 'than the powers of government inherent in every sovereignty * * * the power to govern men and things within the limits of its dominion.' (Nebbia v. People of State of New York, 291 U.S. 502, 524, 54 S.Ct. 505, 510, 78 L.Ed. 940, 949.) '* * * The broad and all-pervading scope of * * * (the police) power makes a satisfactory definition of it...