Turner v. County of Del Norte
| Decision Date | 07 March 1972 |
| Citation | 24 Cal.App.3d 311,101 Cal.Rptr. 93 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Eugene L. TURNER and Ann J. Turner, his wife, and all other owners of lots in the Fort Terwer Subdivision of the County of Del Norte, Plaintiffs and Appellants, v. The COUNTY OF DEL NORTE, a political subdivision of the State of California, Defendants and Respondents. Civ. 28100. |
Michael T. Hennessy, Yreka, Jack Halpin, Redding, for plaintiffs-appellants.
William W. Speer, County Counsel, County of Del Norte, Crescent City, for defendants-respondents.
This is an appeal from a judgment for defendant County of Del Norte in an inverse condemnation action in which plaintiffs sought damages for a loss of use of their property by reason of the enactment of a county flood plain ordinance.
Appellants instituted this class action for themselves and for all other owners of lots in a subdivision near the town of Klamath in Del Norte County alleging that the zoning of their property amounted to a taking without compensation. The parties stipulated that the trial be bifurcated. The court was presented with the limited issue of whether there was a taking, and the issue of damages, if any, was reserved for a later proceeding.
The trial court rendered judgment for the County of Del Norte and held that the county was acting within the scope of its police power in enacting the flood plain zoning ordinance and that there was no taking of appellants' property. The sole question presented on appeal is the prepriety of this ruling.
Appellant is the owner and subdivider of approximately 31 acres of land on the bank of the Klamath River, four miles from the town of Klamath, Del Norte County, California. The subdivision map was given final approval by the County Board of Supervisors in June 1964 with a notation on the map that the land was subject to flooding. By late December 1964, plaintiff had sold 21 of his 143 lots, constructed roads and a water system, and erected one building for use as an office and model home.
Beginning on December 22, 1964, the lower reaches of the Klamath River were subjected to severe flooding. At the peak of the flood, the main channel of the river flowed directly across appellants' property and everything there was swept away. The land surface was eroded, lowering the area, and making it even more susceptible to flooding than before. The entire Klamath townsite four miles downstream was destroyed.
This was the fourth time since 1927 that the area was flooded. The appellants' land was partially flooded in 1953 and 1927 and was completely covered by flood waters in 1955 and 1964. A county supervisor testified that due to the changes in appellants' land resulting from the 1964 flood, floods like those in 1953 and 1927 would cover the area completely. He further testified that after the 1964 flood, it became obvious that flood control measures would have to be taken. A.U.S. Army Corps of Engineers (hereafter Corps) flood control project for the lower Klamath River recommended a plan which involved moving the town of Klamath to a higher location on fill, constructing a levee to protect the existing site of Klamath Glen inland of the appellants' property and regulating flood plain use in the rest of the valley. Certain local assurances from the County of Del Norte were required in connection with the Corps' project. Among these requirements were assurances to '(p)rovide without cost to the United States all lands, easements, and rights-of-way necessary for construction and functioning of the project; . . . manage the historical flood plain within the eight-and-one-half mile reach above the mouth of the Klamath River . . . (p)revent any encroachment on the . . . flood plain management areas which might interfere with the proper functioning of the project, lessen its beneficial effects, or reduce its design capacity; . . .'
Initially it was believed that compliance with the above requirements would necessitate the obtaining of flowage easements. The Corps' position was that flood plain management by easement rather than zoning was superior because of its relative permanency since zoning could be amended or repealed. The California Department of Water Resources took the position that the county ordinance and resolution would provide sufficient control, particularly in view of state laws requiring flood plain regulation of project lands as a condition to state financial assistance on flood control projects. 1 The Corps agreed to...
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...and not by demurrer. (See Wilkins v, City of San Bernardino (1946) 29 Cal.2d 32, 338-339, 175 P.2d 542; Turner v. County of Del Norte (1972) 24 Cal.App.3d 311, 314, 101 Cal.Rptr. 93; G & D Holland Construction Co. v. City of Marysville (1970) 12 Cal.App.3d 989, 91 Cal.Rptr. 227; Smith v. Co......
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