Selby Realty Co. v. City of San Buenaventura

Decision Date27 September 1973
Citation10 Cal.3d 110,109 Cal.Rptr. 799,514 P.2d 111
CourtCalifornia Supreme Court
Parties, 514 P.2d 111, 3 Envtl. L. Rep. 20,901 SELBY REALTY COMPANY, Plaintiff and Appellant, v. CITY OF SAN BUENAVENTURA et al., Defendants and Respondents. L.A. 30110.

William T. Selby and Harry T. Straitiff, Ventura, for plaintiff and appellant.

Goldstein, Barceloux & Goldstein, Thorpe, Sullivan, Clinnin & Workman, Los Angeles, Malovos & Chasuk, Mountain View, Raymond G. Lamb, Pomona, Fadem & Kanner, Gideon Kanner, Beverly Hills, Acret & Perrochet, James Acret, Harry Zavos and Harvey M. Grossman, Los Angeles, as amici curiae on behalf of plaintiff and appellant.

Thompson, Lyders & Laing, K. D. Lyders and James E. Dixon, Ventura, for defendants and respondents.

Evelle J. Younger, Atty. Gen., Nicholas C. Yost and E. Clement Shute, Jr., Deputy Attys. Gen., John D. Maharg, County Counsel, William F. Stewart, Deputy County Counsel, Los Angeles, Martin & Flandrick, Robert Flandrick, San Marino, Harry S. Fenton, Sacramento, Joseph A. Montoya, Robert L. Meyer, Los Angeles, Hugh R. Williams, Arcadia, Jack M. Miller, La Habra, Rogers, Vizzard & Tallett, John Rogers, Miller, Groezinger, Pettit & Evers and Robert A. Thompson, San Francisco, as amici curiae on behalf of defendants and respondents.

MOSK, Justice.

Plaintiff is a California corporation which owns several parcels of land, some located within the County of Ventura (hereafter referred to as the county) and some within the City of San Buenaventura (hereafter the city). In 1968 the city and county adopted the Ventura Avenue Area General Plan pursuant to section 65300 et seq. of the Government Code. 1 As required by section 65302, subdivision (b), the plan contained a circulation element indicating the general location of existing and proposed streets. It revealed a proposed extension of Cedar Street over the western boundary line of one parcel of plaintiff's city property, and other proposed streets extending through plaintiff's county land.

The property upon which the proposed extension of Cedar Street was shown had been zoned for multiple dwellings by the city, and in 1970 plaintiff applied to the 54-unit apartment complex on that parcel. The application indicated that plaintiff intended to construct the buildings upon a portion of its property which the plan outlined as the location for the proposed extension of Cedar Street. The city denied the permit, assertedly because plaintiff refused to dedicate the extension of Cedar Street included in the plan.

Plaintiff filed this action seeking declaratory relief, damages, and a writ of mandate, against the city, the county, and several of their officials. The complaint contains six causes of action. It seeks, inter alia, a declaration of the manner in which the general plan affects plaintiff's rights in its city and county property, a writ of mandate to compel the issuance of a building permit, and damages in inverse condemnation.

The trial court sustained general and special demurrers to those counts of the complaint alleging a cause of action against the county and the individual city and county defendants. It also sustained the city's demurrer to the complaint 'on each and every ground asserted' but granted plaintiff leave to amend insofar as the complaint sought 'judicial review of the city's alleged denial of plaintiff's application for a building permit.' Plaintiff failed to amend, and judgments of dismissal were entered as to all defendants.

Before reaching the complex issues before us, we first summarize significant statutory provisions relating to the enactment and effect of general plans. Under the Government Code, the legislative body of each city and county must establish a planning agency (§ 65100) which shall adopt a comprehensive, long-term general plan for the physical development of the city or county (§ 65300). As noted above, the plan must include a circulation element showing the general location of existing and proposed streets (§ 65302, subd. (b)). The plan may be changed after notice and hearing if the legislative body deems a change to be in the public interest (§ 65356.1). Cooperation between city and county planning agencies is encouraged (§§ 65305, 65306, 65650, 65651), and a city and county may adopt the sam general plan (§ 65360).

The code is less specific as to the implementation of a general plan. Prior to 1971, it provided only that the planning agency should make recommendations and reports to the legislative body and consult with others regarding implementation of the plan (§ 65400), and that legislative bodies are required to give consideration to conformity with the general plan in the acquisition or abandonment of property or the construction of public works (§§ 65401, 65402). Recent legislation requires county and city zonin ordinances to be consistent with the general plan by January 1, 1974. (§ 65860, subd. (a); Stats.1973, ch. 120.) 2

Plaintiff's action against the county defendants

In the first cause of action, which sounds in declaratory relief, plaintiff alleges that the general plan adopted by the county shows certain proposed streets extending through its county and city property, and that no payment has been offered for any of plaintiff's land upon which the proposed streets would be located. Allegations follow regarding plaintiff's application to the city for the building permit, and the city's denial of the permit. It is alleged that there are actual controversies relating to the legal rights and duties of the parties. Plaintiff seeks a determination of the validity of the general plan as it affects plaintiff's land, a declaration as to whether there has been a taking of its property for public use, and a judgment setting forth plaintiff's rights in the event a taking has occurred. It is asserted that these allegations state a cause of action for declaratory relief against the county on the theory that the county, by adopting the general plan jointly with the city showing the proposed streets extending through plaintiff's land, effected a taking of the property.

Section 1060 of the Code of Civil Procedure provides that 'any person . . . who desires a declaration of his rights or duties with respect to another, or in respect to . . . property . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an action in the superior court for a declaration of his rights and duties in the premises.' The 'actual controversy' referred to in this statute is one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts. The judgment must decree, not suggest, what the parties may or may not do. (Silva v. City & County of San Francisco (1948) 87 Cal.App.2d 784, 789, 198 P.2d 78; Conroy v. Civil Service Commission (1946) 75 Cal.App.2d 450, 456, 171 P.2d 500.)

We cannot discern in the foregoing allegations any concrete dispute between plaintiff and the county which admits of definitive and conclusive judicial relief. The county has taken no action with respect to plaintiff's land except to enact a general plan describing proposed streets, as required by state law. The fact that some of the proposed streets, if ultimately constructed, will cross plaintiff's property gives this plaintiff no greater right to secure a declaration as to the validity of the plan or its effect upon his land than that available to any other citizen whose property is included within the plan. The plan is by its very nature merely tentative and subject to change. Whether eventually any part of plaintiff's land will be taken for a street depends upon unpredictable future events. If the plan is implemented by the county in the future in such manner as actually to affect plaintiff's free use of his property, the validity of the county's action may be challenged at that time.

The adoption of a general plan is a legislative act. Since the wisdom of the plan is within the legislative and not the judicial sphere, a landowner may not maintain an action is declaratory relief to probe the merits of the plan absent allegation of a defect in the proceedings leading to its enactment. (Mills v. S.F. Bay Area Rapid Transit Dist. (1968) 261 Cal.App.2d 666, 668, 68 Cal.Rptr. 317; cf. O. T. Johnson Corp. v. City of Los Angeles (1926) 198 Cal. 308, 324, 245 P. 164.)

Silva v. City & County of San Francisco, supra, 87 Cal.App.2d 784, 198 P.2d 78, involved circumstances analogous to the instant problem. In Silva, the board of supervisors had declared that plaintiff's land would be acquired by eminent domain 'when necessary,' and plaintiff sought a declaration that the proper compensation for his property was its value at the time the complaint was filed. The court held that there was no actual controversy between the parties since the only judgment which could be rendered would be of an advisory nature, i.e., a declaration of the value of the land when the city deemed it necessary to acquire the property. In this case the rights of plaintiff are even more attenuated than in Silva since there is no present concrete indication that the county either intends to use plaintiff's property for the proposed streets or that it intends to acquire the property by condemnation. 3

It is clear, therefore, that the trial court properly sustained the demurrers of the county and the individual county defendants to the first cause of action.

Although plaintiff did not originally allege that the county's adoption of the general plan amounted to inverse condemnation of its property, 4 it now asserts that the county's action in adopting the plan amounted to a 'taking' of its property, and that the facts pleaded are sufficient to allege such a taking. Plaintiff cites as authority the case of Klopping v. City of Whittier (1972) 8 Cal.3d 39,...

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