People ex rel. Dept. Pub. Wks. v. Southern Pac. Trans. Co.

• Court: California Court of Appeals
• Writing for the Court: THOMPSON; WOOD, P.J., and LILLIE
• Citation: People ex rel. Dept. Pub. Wks. v. Southern Pac. Trans. Co., 109 Cal.Rptr. 525, 33 Cal.App.3d 960 (Cal. App. 1973)
• Decision Date: 14 August 1973
• Parties: The PEOPLE of the State of California, acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al., Defendant and Respondent. Civ. 41110.

Page 525

109 Cal.Rptr. 525

33 Cal.App.3d 960

The PEOPLE of the State of California, acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al., Defendant and Respondent.

Civ. 41110.

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

Aug. 14, 1973.

Rehearing Denied Sept. 7, 1973.

Hearing Denied Oct. 31, 1973.

Harry S. Fenton, Chief, Sacramento, Joseph A. Montoya, Robert L. Meyer, Hugh R. Williams, Charles E. Spencer, Jr., and Ira W. Holroyd, Los Angeles, for plaintiff and appellant.

William E. Still and Walt A. Steiger, Los Angeles, for defendant and respondent.

THOMPSON, Associate Justice.

Plaintiff (condemnor) appeals from a judgment in an eminent domain proceeding awarding respondent (condemnee) the sum of $52,750.00 as compensation for a strip of real property 40 feet wide by 1350 feet long at one time used by condemnee for a rialroad right-of-way. Condemnor concedes the sufficiency of the evidence to support the judgment but contends: (1) the trial court prejudicially erred in ruling that the condemned property should be valued disregarding existing zoning restrictions upon it; and (2) the trial court prejudicially erred in receiving in evidence an offer to purchase the property made by the condemnor. We reverse the judgment.

Zoning

The property which is the subject of the case at bench is located in the San Fernando Valley in the City of Los Angeles. It was acquired by condemnee's predecessor in interest in 1912 and beginning in that year it was used as a railroad right-of-way. The general area through which the right-of-way ran was agricultural in character. A street subsequently to become the southbound lane of Sepulveda Boulevard in the San Fernando Valley was constructed on the west side of the right-of-way sometime prior to 1935. The northbound lanes of Sepulveda were constructed to the east of the property in 1940, at which time the roadway to the west of the property became a through street for the first time.

The property was unzoned until March 7, 1946. On that date pursuant to a master plan by which railroad rights-of-way were zoned to accored with adjoining land, the property was zoned A2--1, a zoning which permits single family residences, offices of some types in conjunction with a residence, agriculture, miniature golf courses, and public parking if necessary findings are made. From 1946 until June 29, 1970, the date of valuation in this eminent domain proceeding, the character of the area around the property changed from agricultural to urban. Sepulveda Boulevard as it adjoined the property became essentially a commercial street with no agricultural use along it. By 1970 Sepulveda was a major highway traveled by approximately 20,000 cars per day. In 1963 condemnee's predecessor in interest terminated the use of the property as a railroad right-of-way.

Although for different reasons, both related to their respective theories at trial, condemnor and condemnee agree that there was at no time a reasonable probability of a zoning change of the former right-of-way strip to C2 & P, commercial and parking, which condemnee contends was necessary to the development of the land to its highest and best use.

An appraiser, whose qualifications to testify to the value of real property were stipulated, testified for condemnee without objection, that where discontinued railway rights-of-way existed as median strips of highways, it was the policy of the City of Los Angeles either to acquire them or to prevent their development. His opinion was based upon two factors: ordinances of the City of Los Angeles in existence from 1956 through 1966 which restricted the use of former railroad rights-of-way, and the action of the city in an unrelated situation 'rolling back' zoning of a former right-of-way to a more restrictive use. The first of the ordinances recites: 'Because of the location, shape, size and necessity for transportation and the movement of traffic of certain abandoned right-of-way properties, any other use not related to transportation or the movement of traffic would be contrary to the public interest and hazardous to public health, safety and general welfare.' The enactment provides in part that 'no person shall erect any building or structurer on property within any railway right-of-way where railway service has been discontinued within two years after such abandonment or such discontinuance . . .' In 1957 the city by ordinance extended the period to six years from the effective date of the new ordinance. The third ordinance enacted in 1960 extended the period to 1966. Except to the extent of the prohibitions upon development for the specified periods the ordinances permitted the use of abandoned railway rights-of-way to the extent 'not contrary to the public interest' nor 'hazardous to the public health, safety, and general welfare' if the use comported with the zoning applicable to the right-of-way.

In 1971 the City of Los Angeles in rezoning an unrelated abandoned right-of-way owned by condemnee to a more restrictive (residential) use, reported: 'In initiating the change of zone, the Council indicated that it would be desirable to eliminate all possibility of extensive use of the railroad right-of-way which along a good portion of its length occupies the center portion of a secondary highway.'

Condemnor produced evidence that it was the policy of the City of Los Angeles to restrict zoning of discontinued railroad rights-of-way only to the extent of elimination of traffic hazards and 'in the interest of the public health, safety and welfare.' The parties agreed at trial that there was no cooperation or agreement between the City of Los Angeles and the condemnor State of California, to limit the use of the subject strip of property so as to allow condemnor to acquire it for less than its market value.

The trial court found, 'there appears a city policy to prohibit or frustrate the use of abandoned railroad rights-of-way other than for street purposes' and concluded, 'the City's refusal to rezone subject property to commercial amounts to a taking without just compensation, which renders the present agricultural zoning into which subject property has been frozen discriminatory, confiscatory and invalid' the trial court ruled: '1. That upon the trial of this action the parties may offer evidence of the fair market value of subject property as though its use were unrestricted by zoning ordinance. 2. That all evidence of the fair market value of the subject property based in whole or in part upon its present zoning be excluded at trial.'

Condemnee having offered and the court having received evidence that the property should be valued at its highest and best use as commercial property, condemnor on this appeal attacks the finding of improper purpose for the A2--1 zone as being unsupported by the evidence and the ruling excluding consideration of the zoning as being contrary to law.

Substantial evidence supports the finding of the trial court that the zoning applied by the City of Los Angeles to the subject property was the implementation of a city policy to frustrate by discriminatory spot zoning development of discontinued railroad rights-of-way for other than street purposes. The trial court was entitled to accept the actual recitals in the 1956 through 1966 ordinances and in the 'roll back' zoning matter as controlling over the protestations to the contrary of the city officials who testified for condemnor.

The existence of evidentiary support for the trial court's finding is not the end of the matter. Its legal conclusion barring evidence of actual zoning, must be tested. Although in most situations a collateral attack upon zoning is not permitted in an eminent domain proceeding (see Note 9 A.L.R.3d 291, 303 and cases there cited), that principle is inapplicable to the situation where the condemnor purporting to exercise its police power by enacting a zoning ordinance has in reality discriminated against a particular parcel or parcels of land in order to depress their value with a view to future takings in eminent domain. (4 Nichols on Eminent Domain (3d ed.) § 12.322; Note 9 A.L.R.3d 291, 304 and cases there cited; see also Klopping v. City of Whittier, 8 Cal.3d 39, 46, 104 Cal.Rptr. 1, 500 P.2d 1345.) In such a situation the condemnee may attack the validity of the invalid zoning ordinance in the minent domain action and if successful require that his property be valued free of its restrictions. (See Klopping v. City of Whittier, Supra, 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345.)

Thus, if the eminent domain action which is the case at bench had been commenced or prosecuted by the City of Los Angeles, the ruling of the trial court excluding evidence of existing zoning would have been correct. (Peacock v. County of Sacramento, 271 Cal.App.2d 845, 856, 77 Cal.Rptr. 391; Sneed v. County of Riverside, 218 Cal.App.2d 205, 209--211, 32 Cal.Rptr. 318; Kissinger v. City of Los Angeles, 161 Cal.App.2d 454, 458--460, 327 P.2d 10.) The case at bench, however, involves an improper zoning restriction imposed by the City of Los Angeles for the purpose of depressing value with a view to future condemnation and actual condemnation by a different governmental agency, the State of California. Moreover, there is an express concession by the parties that the city's action was not taken in concert or by agreement with the state.

The distinction between the governmental entity imposing the improper restriction in the guise of zoning and the governmental unit taking property for which the constitution demands it pay just compensation...