Peacock v. Sacramento County

• Citation: 271 Cal.App.2d 845,77 Cal.Rptr. 391
• Court: California Court of Appeals
• Decision Date: 16 April 1969
• Parties: Irene PEACOCK, as Executrix of the Estate of J. W. Peacock, Deceased, and L. J. Reese, Plaintiffs, Respondents and Cross-Appellants, v. COUNTY OF SACRAMENTO, Defendant, Appellant and Cross-Respondent. Civ. 11547.

Page 391

77 Cal.Rptr. 391

271 Cal.App.2d 845

Irene PEACOCK, as Executrix of the Estate of J. W. Peacock, Deceased, and L. J. Reese, Plaintiffs, Respondents and Cross-Appellants, v. COUNTY OF SACRAMENTO, Defendant, Appellant and Cross-Respondent.

Civ. 11547.

Court of Appeal, Third District, California.

April 16, 1969.

As Modified April 29, 1969.

Rehearing Denied May 15, 1969.

Gale & Goldstein, by Stanley J. Gale, Sacramento, for plaintiffs, respondents cross-appellants.

John B. Heinrich, County Counsel by Thomas A. Darling, Deputy County Counsel, Sacramento, for defendant, appellant cross-respondent.

JANES, Associate Justice.

This is an appeal by defendant county from a judgment for plaintiffs in an action brought on the theory of inverse condemnation. ¹ Plaintiffs have filed a cross-appeal from that part of the judgment which found the taking to have occurred on November 13, 1963, but have requested that the cross-appeal be dismissed if the judgment appealed from by the county is affirmed. The trial was bifurcated as to the following issues: (1) whether a taking by inverse condemnation had in fact occurred, and (2) damages. The issue on the main appeal is primarily whether the court correctly found a taking--permanent in nature--to have occurred; we are not concerned with the issue of valuation.

I. Background

The action is based on a claim by plaintiffs that the county through a series of acts deprived plaintiffs of the use and value of certain real property located immediately south of Phoenix Field, a privately owned airport in the northeast area of Sacramento County. The evidence was in conflict as to the size of the area involved; the court ultimately determined however, that the affected parcel, herein referred to as the 'take' area, encompassed 26 1/2 acres.

The controversy centers upon the impact on plaintiffs' property rights of a series of actions taken by the Sacramento County Board of Supervisors, which actions were based upon what was initially an assumption and subsequently became a publicly stated intention that the county would eventually purchase Phoenix Field for use as a public aviation facility. The 'take' area with which we are concerned was included in that additional property which the county would have had to purchase in order to operate the facility in accordance with their expressed plans. The activities of the board, involved in this case, commenced in 1958 and had not been concluded at the time the subject proceeding was intiated.

In 1955 plaintiff Reese, the owner of a large tract of land which extended south from Sunset Avenue (the existing boundary of Phoenix Field) to the American River, entered into an agreement with plaintiff Peacock for sale of the property, in successive phases. Peacock's purchase and subsequent development started with the southernmost portion of this property, followed by generally contiguous sections to the noth. His plan was to develop the property immediately south of the airport last, because of its potential commercial value once the area south of it was developed. Development of the 'take' area was in the planning stages by 1959; subdivision maps had been prepared, the County Engineer's office had been contacted regarding sewer facility commitments and arrangements had been made regarding the bonding of improvements.

In 1958, however, the county had entered into an agreement with Leigh-Fisher and Associates, Airport Consultants, authorizing (1) an analysis of the then existing air trade characteristics of the area and (2) recommendations for an area civil airport development program. The Leigh-Fisher report was published in 1959, and, althouth it was concerned primarily with the concept of a new metropolitan airport, it included recommendations for 'a county-side system of (smaller) county airports to serve all the aviation needs of the community.' The report expressed the need for a permanent public airport facility in the northeast area of the county, and recommended that primary consideration be given the possible use of Phoenix Field to serve that need. It was further pointed out by the report that Phoenix Field was situated in a rapidly developing residential area and the recommendation was made that the county take immediate action 'to provide compatible land uses and maintain proper approach criteria * * *,' suggesting the use of zoning regulations as a method of implementing this purpose.

After the Leigh-Fisher report was submitted to the Board of Supervisors in 1959, a joint City-County Airport Study Committee was formed to review the report and its recommendations. In January 1960, the study committee adopted a resolution recommending that the county assume responsibility for airport development in line with the recommendations of the Leigh-Fisher report, and in March 1960, that resolution was ratified by the Board of Supervisors. Hearings were held by the Board of Supervisors, looking toward adoption of zoning measures to control further development of the area necessary for Phoenix Field expansion, and Mr. Peacock and his attorney attended several such hearings and protested the intended zoning restrictions.

On April 6, 1960, the Board of Supervisors adopted Ordinance 697, which by its terms applied only to '* * * the airport commonly known as Phoenix Field.' The effect of the ordinance was to establish requirements in regard to clear airspace for the existing runway. The ordinance prohibited any structure or vegetation with a height in excess of zero feet in an area extending 200 feet from either end of the runway. A clear airspace requirement of 20:1, or 1 feet of elevation for 20 feet of distance was established for the next 10,000 feet of land, i.e., at 200 feet from the end of the 'ground zero' zone, no structure was permitted in excess of 10 feet; any excess would constitute an 'obstruction.' The county considered this ratio to be required by 'TSO-N18' (Technical Standard Order, U.S. Dept. of Commerce) for compliance with certain federal standards with which the county sought to comply in order to be eligible for participation of federal funds. Contemporaneously with enactment of Ordinance 697 the county entered into a leaseleaseback agreement with the private owners of Phoenix Field in order to create the public interest in the airport necessary to qualify for eligible federal funds. Thereafter the sub-leasee, the Fiar Oaks Flying Club, operated the airport as a public facility.

By the time Ordinance 697 was adopted, the county had become aware of the need to acquire an interest in the adjacent clear zones and land area in order to qualify for participating federal funds; after enactment of the ordinance the county prepared various plans for development of the Phoenix Field project which were concerned with both the facility itself and the surrounding area, including recommendations for acquisition of nearby lands, and it repeatedly made clear its intention to purchase the necessary additional land. The plans were not limited to the existing facility, but also included plans for development of various two-runway systems, and the area of clear space required for the several plans prepared varied from one plan to another.

On June 12, 1963, the Board of Supervisors rezoned certain property in the area of Phoenix Field, including the subject 'take' area, from an agricultural classification designated A-I-C to a different agricultural classification known as A-I-B. Although the A-I-B classification permitted a greater density of use for residential purposes (one single family home per acre as opposed to one for each two acres under the A-I-C classification), the A-I-B zoning was slightly more restrictive in certain areas of height regulation than Ordinance 697, and was a type of zoning specifically designed for use in airport and airport approach areas. Although directed by the Board of Supervisors (under the authority of Ordinance 697) to initiate proceedings for adoption of an airport approach zoning ordinance pursuant to the Airport Approaches Zoning Law of the State of California, ² the County Planning Director attempted to accomplish the desired result by the zoning reclassification. This zoning, or any other height restrictive or protective scheme, was not adopted relative to any other private airport in the county.

Finally, in November of 1963, a general Phoenix Field Land Use Plan was submitted to the Board of Supervisors for approval and the plan was adopted by the board on November 13, 1963. The future airport contemplated by the general plan of November 1963 was a two-runway field involving a clear area greater than that established by Ordinance 697. ³ By resolution passed on February 10, 1964, the Board of Supervisors directed the taking of necessary steps to effectuate the general plan.

Negotiations thereupon commenced for purchase of both the airport site and the 'take' area. The county's plans became less certain, however, toward the end of 1964 and beginning of 1965, because of difficulty in reaching an agreement as to price with the members of the Fair Oaks Flying Club, owners of the Field proper, and on March 24, 1965, the board took action, upon recommendation of its Director of Airports, to instruct the county executive and other responsible county officers (1) 'to take the necessary steps to cancel the existing lease between the County and the Fair Oaks Flying Club relative to Phoenix Field. * * *' (2) 'to prepare an ordinance rescinding the height ordinance (Ordinance 697) previously adopted by the Board of Supervisors for Phoenix Field. * * *' (3) 'to initiate action and the necessary public hearings for the deletion of Phoenix Field from the General Plan of the County. * * *' and (4) to direct * * * 'Public works to continue to look for sites in the area.' The order of March 24, 1965, was temporarily suspended, however, by action of the board on April 7, 1965, in order to permit the...