SELBY REALTY COMPANY, Plaintiff and Appellant, v. CITY OF SAN BUENAVENTURA et al., and County of Ventura et al., Defendants and Respondents.
Plaintiff Selby Realty Company, a corporation, brought an action which combined a complaint for inverse condemnation, declaratory relief and damages with a petition for writ of mandate. Defendants are the County of Ventura (The County), the City of Buenaventura (The City) and various officials of those governmental entities. Demurrers were filed on behalf of all defendants. The demurrer of the City was sustained with leave to amend. The remaining demurrers were sustained without leave to amend.
When plaintiff failed to amend as to the City, judgment of dismissal was entered in favor of all defendants.
The following operative facts are gleaned from the complaint and admitted by the demurrer to be true.
Plaintiff owns 121.223 acres of land in the Ventura Avenue area in Ventura County, of which 10.463 acres are in the city and 110.76 acres are in unincorporated area of the county.
The property in the City consists of one parcel of 5.6 acres which has been improved with apartment buildings and one undeveloped parcel of 4.63 acres which is the main subject of this litigation.
This latter parcel was annexed to the City in 1965. At the time of annexation the plaintiff proposed a plan for the construction of apartment buildings. As a result the parcel was zoned by the City as R–3–2D to permit such construction. That zoning was unchanged at the time of the filing of the complaint.
Plaintiff's land lying in county territory is zoned and is used partly as industrial and partly as farm land.
On July 8, 1968 and August 27, 1968, the City and County, respectively, adopted a general regional plan known as the ‘Ventura Avenue General Plan’ (The General Plan). This plan covered both City and County territory and included proposals for the future routing of streets in the Ventura Avenue area. Three streets were proposed which, if located as proposed by the General Plan, would take substantial portions of plaintiff's land.
One of the three streets, Cedar Street, as shown by the General Plan would extend some 3,613.44 feet through plaintiff's undeveloped 4.63 acre parcel. The streets, including the Cedar Street extension, were proposed as part of the Circulation and Transportation element of the plan in order to ‘eliminate present and future traffic problems from Ventura Avenue.’ Ventura Avenue is a city street approximately one-half mile from Cedar Street and running parallel thereto.
On November 13, 1970, plaintiff applied for a building permit and submitted to the appropriate official for the City, plans for the construction of a 54-unit apartment building. These plans were also submitted to the City Planning Commission as required by City Ordinance.
Section 8129A.2 of the Ordinance of the City provides: ‘If the [City Planning] Commission finds that the plot plans, exterior architectural appeal and functional plans of such proposed buildings, structures or signs will be so at variance or in conflict or disharmony with those of other buildings or structures in the immediate neighborhood as to cause substantial depreciation in property values hereof, it shall disapprove such plans. The Commission may approve such plans subject to conditions which will assure that such proposed buildings, structures or signs will not cause substantial depreciation in property values in the immediate neighborhood.’ (Emphasis added.)
On December 8, 1970, the Planning Commission on the written recommendation of its staff, disapproved plaintiff's plans. The basis for said disapproval was that the plans failed to provide for the extension of Cedar Street through the property as proposed in the General Plan. In fact, plaintiff proposed to locate its new buildings on the site of the proposed extension of Cedar Street.
Following the decision of the Commission, plaintiff appealed to the City Council which sustained the Commission on the grounds that: ‘. . . the proposed use on this parcel would be detrimental to the public interest, safety, health, morals or general welfare or injurious to the property or improvements in the same vicinity and zone in which the property is located.’
Plaintiff next addressed a letter to the City Council seeking clarification of the requirements for granting of a building permit. A reply from the Department of Community Development of the City stated that as a condition of the issuance of a building permit, the plans would have to include the dedication of land for and construction of the extension of Cedar Street as indicated on the General Plan.
Such dedication and construction would render plaintiff's land useless for its planned purpose for the reason that there would be insufficient land left for the proposed apartment building. Except for nonconformity with the General Plan, plaintiff's proposed construction was in all respects in compliance with building requirements.
Plaintiff filed a claim against the City alleging inverse condemnation. The claim was denied on March 29, 1972 and this litigation ensued.
We deal first with the plaintiff's action against the City.
As against a general demurrer all the plaintiff need show is that upon consideration of all of the facts pleaded it would be entitled to any relief at the hands of the court. This is true even though the facts may not be clearly stated or may be intermingled with irrelevant matters, or even though the plaintiff may demand relief to which it is not entitled under the facts alleged. (Gressley v. Williams, 193 Cal.App.2d 636, at 639, 14 Cal.Rptr. 496.)
The complaint purports to set forth six separate ‘causes of action.’
The ‘First Cause of Action’ seeks declaratory relief as to the validity and construction of the General Plan as it affects plaintiff's property rights and plaintiff's right to obtain a building permit.
The ‘Second Cause of Action’ alleges irregularity in the administrative proceedings leading to denial of the permit.
The ‘Third Cause of Action’ seeks from the City's refusal to issue a building permit, damages in the form of money expended for preparation of the plans and loss of projected rent resulting from delay in completion of the project.
The ‘Fourth Cause of Action’ alleges that ‘defendants are engaged in a schemed to take plaintiff's land without compensation.
The ‘Fifth Cause of Action’ consists of a petition for writ of mandate to require the issuance of a building permit to plaintiff.
The ‘Sixth Cause of Action’ alleges inverse condemnation by the City with damages in the amount of $1,104,140.37.
Plaintiff in essence has pleaded a single cause of action against the City and its various officials. The facts described course of conduct by those defendant which resulted in a wrong to plaintiff. (See Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co., 10 Cal.App.3d 206, 88 Cal.Rptr. 358; Panos v. Great Western Packing Co., 21 Cal.2d 636, 134 P.2d 242, Hilltop Properties v. State of California, 233 Cal.App.2d 349, 43 Cal.Rptr. 605; Eichler Homes of San Mateo, Inc. v. Superior Court, 55 Cal.2d 845, 13 Cal.Rptr. 194, 361 P.2d 914.) For redress of this wrong plaintiff seeks several alternative forms of relief, i. e., declaratory relief, mandamus together with incidental damages and inverse condemnation. We must consider the complaint as a whole to see if it adequately sets forth the cause of action and the basis for the various forms of relief.
Plaintiff in seeking the remedy of declaratory relief is resorting to equity. (Sills v. Siller, 218 Cal.App.2d 735, 32 Cal.Rptr. 621) and a liberal construction of its complaint is particularly appropriate. (See Foster v. Masters Pontiac Co., 158 Cal.App.2d 481, 322 P.2d 592; Burke v. City Etc. of San Francisco, 258 Cal.App.2d 32 65 Cal.Rptr. 539; Wilson v. Transit Authority, 199 Cal.App.2d 716, 19 Cal.Rptr. 59.)
‘A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that these rights and duties be adjudged by the court.’ (Maguire v. Hibernia S. & L. Soc., 23 Cal.2d 719, at 728, 146 P.2d 673, at 677; Code Civ.Proc. § 1060.)
Otherwise stated, the complaint must (a) show a proper subject of declaratory relief under Code of Civil Procedure section 1060; (see C. Dudley De Velbiss Co. v. Kraintz, 101 Cal.App.2d 612, 225 P.2d 969; Walker v. County of Los Angeles, 55 Cal.2d 626, 12 Cal.Rptr. 671, 361 P.2d 247; California Water & Telephone Co. v. Los Angeles, 253 Cal.App.2d 16, 61 Cal.Rptr. 618; City of Tiburon v. Northwestern Pac. R.R. Co., 4 Cal.App.3d 160, 170, 84 Cal.Rptr. 469, as to availability of declaratory relief to determine validity of statute or ordinance; see Sperry & Hutchinson Co. v. Cal. State Bd. of Pharmacy, 241 Cal.App.2d 229, 50 Cal.Rptr. 489, for availability of declaratory relief in the case of administrative regulations) (b) an actual present controversy involving justiciable questions relating to the rights and obligations of a party. (City of Tiburon v. Northwestern Pac. R.R. Co., supra; Maguire v. Hibernia S. & L. Soc., supra; Witkin, 2d ed., Vol. 2, § 708.)
The complaint while not a model of pleading clearly sets forth the relief sought and the facts allegedly justifying that relief. Plaintiff's interest is neither academic nor conjectural.
If the City were to forthwith embark on an extension of Cedar Street it would have to acquire plaintiff's property by eminent domain and pay just compensation. If at sometime in the future the City pursued a similar course of conduct, the result would be the same.
In the meantime, the plaintiff's ability to either sell or develop its property is impaired if not destroyed.
The present and future impact upon its property rights is considerable.
Plaintiff, however inartfully, is seeking a judicial determination of the legality of the use of the plan by the City to deny to plaintiff a permit to build. This is no conjectural future controversy but instead involves present impairment of substantial property rights. Where, however, future rights are involved, they may be determined where a declaration of the present and actual controversy is dependent upon an adjudication of such future rights. (California Water & Telephone Co. v. Los Angeles, suprai.)
It is highly pertinent, too, that the object of declaratory relief is to liquidate uncertainties and controversies which might result in future litigation. (Haley v. L. A. County Flood Control Dist., 172 Cal.App.2d 285, 342 P.2d 476; Hannula v. Hacienda Homes, 34 Cal.2d 442, 211 P.2d 302.) The uncertainties inherent in the implementation of the plan under scrutiny portend an abundance of controversy unless removed by clear and authoritative interpretation of the rights and duties of the parties.
Plaintiff also seeks a determination as to whether the City may require donation of property as a condition precedent to the granting of a permit. Since taking of property without compensation may be effected under the police power only if the taking constitutes a ‘reasonable exertion of governmental authority for the public good,’ the complaint here clearly places in issue the reasonableness of the City's action. (State Board v. Thrift-D-Lux Cleaners, 40 Cal.2d 436, 254 P.2d 29; Southern Pac. Co. v. City of Los Angeles, 242 Cal.App.2d 38, 51 Cal.Rptr. 197.)
The City relies on Ayres v. City Council of Los Angeles, 34 Cal.2d 31, 207 P.2d 1, for the proposition that under the general police power it has the power to condition the issuance of a building permit upon the dedication by a landowner of property for streets.
Ayres, however, was involved with a subdivision. The court there distinguished between setting out reasonable requirements for subdivisions and the exercise of the power of eminent domain, holding that dedication of land to the widening of existing streets or construction of new streets was not a compensable taking for public use where it is a condition reasonably related to increased traffic and other needs of the proposed subdivision.
Southern Pac. Co. v. City of Los Angeles, supra, dealt with an application by the Southern Pacific for a permit to build a warehouse on property it owned on South Alameda Street, an existing street in Los Angeles. The City required the Southern Pacific to dedicate a portion of its property for street widening as a condition to approval of the permit.
This court found the requirement to be a reasonable exercise of the police power, noting that petitioner's warehouse would be a source of increased traffic on Alameda and that the proposed dedication of less than one fifth of an acre from a parcel of some 50 acres would work no hardship but to the contrary would be of benefit to Southern Pacific's operations and would enhance the value of its land.
The instant case is distinguishable from Ayres and Southern Pacific. Plaintiff here does not seek to subdivide and there is existing access to his proposed development. Nor is he being asked to widen an existing street to accommodate additional traffic generated by his development. In short, the proposed extension of Cedar Street appears unrelated to plaintiff's proposed building. The City by proposing to divert traffic from Ventura Avenue to Cedar Street appears to be the cause of potential traffic increase in the vicinity of plaintiff's property. The Cedar Street improvement is a creation of the City and the benefits would redound to the whole area encompassed by the General Plan. This is not a case where the public is only an incidental beneficiary. The City would be the main beneficiary of the General Plan and the plaintiff would receive the dubious distinction of not having enough land remaining upon which to build its apartments to share in the use of Cedar Street.
On the facts pleaded, the proposed street and plaintiff's apartments cannot coexist. Either the City gets its street or plaintiff gets its apartments. This is a problem which neither Ayres nor Southern Pacific addresses.
We note with interest that the City enacted section 8323 of the Ordinance Code effective May 27, 1971, the date of the filing of the complaint in this case. That Ordinance purports to require the dedication of property for street purposes upon a finding by the City Manager that a proposed improvement or use would cause an increase in vehicular or pedestrian traffic which creates the need for added right-of-way.
The possibility that the City would seek to rely upon this Ordinance either at trial, or upon a reapplication by plaintiff after this litigation, demonstrates the need for declaratory relief. Even under that Ordinance the reasonableness of the City Manager's findings and requirements would be open to judicial review. Plaintiff should not be required to run the gauntlet twice.
Building permits must be issued when the law has been complied with and they may not be denied for the purpose of enforcing some other regulation, ordinance or requirement. (Palmer v. Fox, 118 Cal.App.2d 453, 258 P.2d 30.) They may be denied only where authority for their denial is contained in a valid, enforceable ordinance. (Munns v. Stenman, 152 Cal.App.2d 543, 314 P.2d 67; McCombs v. Larson, 176 Cal.App.2d 105, 1 Cal.Rptr. 140.)
Section 8129A.2 of Ordinance Code of the City provides for disapproval of plans for buildings which are in conflict or disharmony with other buildings in the neighborhood. Yet, the grounds set forth by various levels of city government in this case, although shifting somewhat as the permit process proceeded, stressed the conflict of plaintiff's projected apartments with the road contemplated by the plan. There was no evidence of disharmony between plaintiff's building and other buildings. Rather disharmony with the Ventura Avenue General Plan alone is the reason for denial.
The City contends that declaratory relief is not appropriate to review an administrative decision such as the denial of a permit. (Floresta, Inc. v. City Council, 190 Cal.App.2d 599, 12 Cal.Rptr. 182; Escrow Owners Assn. Inc. v. Taft Allen, Inc., 252 Cal.App.2d 506, 60 Cal.Rptr. 755.)
When, however, the construction of legal duties under a statute will aid in the resolution of an actual controversy between the parties, declaratory relief is proper. In any event, a complaint for declaratory relief can be considered as a petition for writ of mandate. (Boren v. State Personnel Board, 37 Cal.2d 634, 234 P.2d 981.) A petition for mandamus and a complaint for declaratory relief may be joined in a single action. (15 Cal.Jur.2d, § 27, p. 148.)
The City refers us to Mills v. S. F. Bay Area Rapid Transit Dist., 261 Cal.App.2d 666, 68 Cal.Rptr. 317, as authority for denying declaratory relief in the case of a general land use plan. In Mills, the plan involved was never more than a broad general concept of operations and thus the court held that to invest it with precise and limiting meaning while still only a plan would be invasion of the legislative prerogative.
The facts of the instant case, however, show that the City has proceeded beyond mere planning and has used the plan as a basis for thwarting plaintiff's development of its property.
This attempt to implement the Ventura Avenue Plan has resulted in justiciable questions relating to the rights and obligations of both parties. Declaratory relief is an appropriate vehicle for resolution of the controversy.
Plaintiff also seeks a writ of mandate to compel the granting of a building permit. Mandate is available to compel the performance of a ministerial act which the law specifically enjoins (traditional mandamus, Code Civ.Proc., § 1085) or to inquire into the validity of the exercise of a quasi-judicial function (administrative mandamus, Code Civ.Proc., § 1094.5). Under the latter section, administrative actions are reviewed to determine (1) whether there was a lack of or excess of jurisdiction; (2) whether there was a fair hearing; or (3) whether there was prejudicial abuse of discretion.
Plaintiff aims its petition at an abuse of discretion in the improper refusal to issue the permit. Plaintiff maintains that denial could be based only on a finding of disharmony of plaintiff's building with others as provided in section 8129A of the Ordinance Code and that having failed to find any grounds for denial under the Ordinance, only the ministerial act of issuing the permit remains to be accomplished.
It pleads traditional mandamus.
City argues that administrative mandamus is the sole remedy available and that the demurrer was properly sustained. On the pleaded facts, plaintiff could well qualify for either traditional or administrative mandamus since abuse of discretion is reason for the invocation of either remedy. In view of the broad scope of this controversy there is at issue more than a narrow examination of the conduct of the administrative hearings afforded to plaintiff by the City. There is but a single writ of mandamus and the two statutes merely set out situations calling for its use. They are not artificial ‘pigeon holes' into which a plaintiff must fit his case at the risk of suffering a demurrer for selecting the wrong one.
Code of Civil Procedure section 1095 provides for recovery of damages incidental to the granting of mandamus. Such damages of course must be pleaded and proved. (Colthurst v. Fitzgerald, 56 Cal.App. 740, 206 P. 471; Gould v. Moss, 158 Cal. 548, 111 P. 925.) Plaintiff has satisfied the pleading requirement by alleging damages caused by delayed construction and inverse condemnation.
Plaintiff in essence repeats the gist of its claim submitted to the City in March 1971, alleging that the City by attaching conditions to the granting of the permit, which conditions would, if fulfilled, render the land useless, has taken its property without compensation in violation of Article 1, section 14 of the Constitution of California.
Beyond that the complaint raises the issue of whether the public promulgation of the General Plan so impairs plaintiff's rights in its property as to amount to inverse condemnation.
The General Plan together with its maps and specific proposals were placed in an attractively bound booklet of some 35 pages and made available to the public. On page 27 is to be found the following: ‘[W]hat is considered here is a priority listing of projects and programs and a similar sequence of public acquisition and other capital outlays dealing with issues and problems of the area. These are coordinated and scheduled, resulting in a specific program of action for the next five to ten years.’ (Emphasis added.)
This is not language indicating, as the City contends, that the General Plan would remain a ‘mere plan’ but for plaintiff's request to build.
In the recent case of Klopping v. City of Whittier, 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345, the Supreme Court held inter alia that where a condemnor issues precondemnation statements and unreasonably delays acquisition thereby causing diminution in the value of the property, the owner was entitled to be compensated.
In Klopping, the stated intent of the defendant city to condemn in the future was said to be a ‘cloud’ on the property. In the court's opinion, activities which might give rise to such damages could be significantly less than a de facto taking of the property.
Code of Civil Procedure section 1243.1 provides that whenever a public entity establishes by resolution or ordinance the necessity to acquire a particular parcel by eminent domain, its failure to initiate such action within 6 months will permit the owner to bring an action in inverse condemnation.
Measured by the end result, i. e., the effect on value, very little difference can be discerned between the General Plan here and a resolution or ordinance.
Klopping, supra, also noted that certain delays could bring about compensable damage even when no later taking ever took place. Certainly when, as here, the General Plan is made the basis for refusing a building permit it can be said to have a clear and measurable effect upon the owner's property rights. By comparison an announced intent to condemn sometime in the future which was found by the Klopping decision to create a ‘cloud’ over the property would seem to have less telling effect than a plan which operates as the instrument to presently deprive a property owner of his right to freely develop or dispose of his land. When the plan serves to extinguish a hitherto authorized use of the property, i. e., a multi-dwelling site, by requiring dedication which critically reduces the area below that needed to build, diminution of its value is graphically demonstrated.
THE INDIVIDUAL DEFENDANTS CITY OFFICIALS
Plaintiff named as defendants, individually, members of the City Council, the Director of Community Development, Superintendent of Building and Safety, and the members of the City Planning Commission.
As to these individuals, the trial court sustained a demurrer without leave to amend.
In the case of inverse condemnation the public agency authorizing the work is answerable for the damages and the officers of the public agency are not properly named as defendants. (Heiman v. City of Los Angeles, 30 Cal.2d 746, 185 P.2d 597; Hume v. Fresno Irr. Dist., 21 Cal.App.2d 348, 69 P.2d 483.)
In an action for declaratory relief relating only to official action of a board wherein the named individuals performed in their official capacities only the board as an entity is the proper defendant. (Sperry & Hutchinson Co. v. Cal. State Bd. of Pharmacy, 241 Cal.App.2d 229, 50 Cal.Rptr. 489.)
In mandamus where the duty sought to be compelled is enjoined upon a board as such, the proceeding should be against the board although the better practice seems to be to name the individual members in addition to the board. (32 Cal.Jur.2d, § 58, p. 246; see also Moran v. Board of Medical Examiners, 32 Cal.2d 301, 196 P.2d 20; Palmer v. Fox, 118 Cal.App.2d 453, 258 P.2d 30.)
From the facts recited it appears that because of their roles in the processing of plaintiff's application for a permit, the City Council and the City Planning Commission as well as the other individual city officials were proper parties. The individual members of the Council and the Planning Commission were also proper although not necessary parties. (Moran, supra.)
THE COUNTY DEFENDANTS
Plaintiff named as defendants the County, the individual members of the Board of Supervisors and the County Planning Director. Again the trial court sustained a demurrer without leave to amend.
When a demurrer is sustained without leave to amend the sufficiency of the complaint must, on appeal, be examined with great care. The sustaining of a demurrer without leave to amend is a drastic step which is unwarranted and an abuse of discretion if there is a reasonable possibility that any defect can be cured by amendment. (See 3 Witkin, Cal.Proc.2d ed., § 844; Gerritt v. Fullerton U. H. School Dist., 24 Cal.App.2d 482, 75 P.2d 627; Griffith v. Department of Public Works, 141 Cal.App.2d 376, 296 P.2d 838.)
Laying aside the question of whether the named individuals are properly joined as defendants we first examine the complaint as against the County itself.
As it now stands the complaint alleges that the General Plan was a result of joint action by the City and County and that the plan does adversely affect plaintiff's property in the County.
Quoting again from the General Plan ‘Throughout the general plan study it was believed that the area could not be planned under the assumption that it was a self-contained community. Indeed forces which have acted on the County as a whole in one way have had a similar effect on the Avenue Area.’ In other words, this plan is an integrated plan with each of its parts affecting the whole.
Both City and County can be presumed to have foreseen that this plan would be implemented incrementally. Each impliedly approved the various actions to be taken under the plan. In this context of a joint undertaking and mindful of Klopping, both City and County must bear responsibility for those events taking place under the umbrella of their plan which carries financial impact for property owners. This is particularly true, when as here, the proposed roads in question, as a result of the common plan, run through both City and County land.
It appears that County action on the plan merely waits in the wings while casting its ‘cloud’ on plaintiff's property, thus the County cannot be a neutral in litigation between City and plaintiff concerning the plan's effects. There cannot be a complete adjudication of plaintiff's rights and duties under the General Plan in the absence of the County.
Further illustration of the interrelation of the City and County in this litigation is found in the spectre of severance damage which rises in inverse condemnation as well as eminent domain as a result of damage to the remainder of the property by virtue of the taking. (Code Civ.Proc., § 1248, subd. 2.) The possibility exists that the property held by the plaintiff within the County may be affected by the results of litigation on these facts particularly since contiguity and a unity of use may be present. (City of Stockton v. Ellingwood , 96 Cal.App. 708, 275 P. 228; Oakland v. Pacific Coast Lumber Etc. Co., 171 Cal. 392, 153 P. 705; 6 A.L.R. 1197.) On these facts the County is a necessary party to the complaint for declaratory relief. (3 Witkin, 2d ed., § 139.)
Our previous discussion of the General Plan in light of Klopping, supra requires that plaintiff be afforded an opportunity, if it so desires, to amend its complaint to plead inverse condemnation.
In summation, the statement of Mr. Justice Holmes in Penna Coal Co. v. Mahon, 260 U.S. 393, at 413, 43 S.Ct. 158, at 159, 67 L.Ed. 322, is appropriate to this case.
‘Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts.’
Plaintiff has set forth facts indicating that ‘certain magnitude’ has been reached. It should be permitted an opportunity to prove it.
However, in neither inverse condemnation (Heiman v. City of Los Angeles, supra; Hume v. Fresno Irr. Dist., supra) nor declaratory relief (Sperry & Hutchinson Co. v. Cal. State Bd. of Pharmacy, supra) would the individual members of the Board of Supervisors or the County Planning Director be a proper party defendant.
The judgment as to the individual members of the Board of Supervisors and the County Planning Director is affirmed.
The remainder of the judgment is reversed and the trial court is directed to afford plaintiff leave to amend as to the defendant County of Ventura. Defendants City of San Buenaventura and County of Ventura to bear costs.
COMPTON, Associate Justice.
ROTH, P. J., and HERNDON, J., concur.