SAN DIEGO GAS ELECTRIC COMPANY v. CITY OF SAN DIEGO (1978)

The City of San Diego (City) appeals the judgment after the court found it had inversely condemned property owned by San Diego Gas & Electric Company (Company) which the jury valued at $2,886,300. Additionally, the jury found.$283,696 severance damages. The court ordered interest of 7% to be paid on the total, $3,169,996, from the date of taking, June 19, 1973, plus appraisal, engineering and attorneys' fees totaling $122,559.07.

The property is in Sorrento Valley in the northern part of the City, in the southwest quadrant of the intersection of Highway I-5 and Carmel Valley Road between I-5 and the Torrey Pines State Park; it is generally at low elevation, is a drainage basin, tidal basin or flood plain and is subject to standing water or “ponding;” part is subject to ocean tidal action and portions have been referred to as the Los Penasquitos Lagoon, an estuary and wildlife refuge; a portion is within the State Coastal Act zone.

Company assembled the approximately 412-acre parcel in 1966 and then discussed with City its plan to hold the land for possible future construction of a power plant. In 1972 City initiated rezoning hearings for the property which was then zoned industrial (M-1A zone) and agricultural or holding zone (A-1-1); at that time the City General Plan Map designated most of the property as industrial and the remainder as “area for future growth.” At the same time, the City Planning Department was preparing an open space plan for the city which ultimately was entitled “A Plan for the Preservation of Natural Parks for San Diego” and included about 230 acres of Company's land. In addition, in early 1972, the Community Development Department prepared a staff report entitled “Park Reserve Systems,” which discussed the financing and acquisition of park reserve lands and got estimated values for the proposed park properties, including the property in question here, as part of a bond proposal to be put before the electorate in September 1973.

The City Council, on June 7, 1973, downzoned some of the land from industrial to A-1-10 and part of the A-1-1 land was designated for future industrial development; the rest of the land in the industrial zone retained its industrial classification.^[FN1] On June 19, 1973 City adopted the open space element of the General Plan which covered all the land found condemned here, about 233 acres. In September 1973, the report of the Community Development Department was adopted and this property appeared on maps as one of the properties to be acquired if the bond issue passed. It failed. A year later Company filed suit.

The City claims its act in zoning the property for light industry and agriculture with an open space overlay do not constitute a taking or a damaging of property.

The power of eminent domain is the state's inherent power to take private property for public use (Rose v. State of California, 19 Cal.2d 713, 719, 123 P.2d 505). However, the state is limited in exercising this power by Article I, section 19 of the California Constitution which assures the private landowner he will be compensated if his land is taken or damaged.

In some instances the state will appropriate a person's property without paying for it in advance. This may occur in a variety of situations. The government may deliberately destroy private property in the public interest such as when it demolishes buildings to prevent the spread of fire; it may inadvertently damage property in the construction of public improvements; it may decrease the value of a person's property, for example, by constructing a freeway which cuts down light and air to a particular property; or it may decrease the value of a person's property by regulations which limit the use or development of the property. (10 Cal.Law Rev. Commission Reports, Recommendations and Studies, 1970-1971 at pp. 79-81.) In these instances the state is said to have acquired the property through inverse condemnation and the property owner can bring suit to recover the compensation due him.

Company claims City has inversely condemned its land because the zoning regulations combined with the open space element of the general plan make it impossible to use the land.

The state derives its authority to zone property from the police power, the government's power to enact regulations to protect the health, safety and welfare of its citizens. Unlike the person whose property is taken in eminent domain, the individual who is deprived of his property due to the state's exercise of its police power is not entitled to compensation (Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d 515, 530, 20 Cal.Rptr. 638, 370 P.2d 342). In California the general rule is that a rezoning which reduces the market value of the land does not give rise to a cause of action in inverse condemnation (HFH, Ltd. v. Superior Court, 15 Cal.3d 508, 514, 125 Cal.Rptr. 365, 542 P.2d 237). However, there are exceptions to the rule. For example, the state may abuse its use of the police power by placing unreasonable or arbitrary regulations on land under the guise of zoning (Pinheiro v. County of Marin, 60 Cal.App.3d 323, 326, 131 Cal.Rptr. 633). A regulation may be unreasonable if it deprives the landowner of any beneficial use of his property (Eldridge v. City of Palo Alto, 57 Cal.App.3d 613, 624, 129 Cal.Rptr. 575) or if it deprives the owner of his property so it can be used by the public. Likewise, if the state downzones a property to decrease its value as a prelude to later acquiring the property, the zoning may be found to have been a condemnation. Or, if zoning classifications are used to evade the requirement that land used by the public must be acquired by the public, such zoning is condemnation (HFH, Ltd. v. Superior Court, supra, 15 Cal.3d 508, 516, fn. 14, 520, 125 Cal.Rptr. 365, 542 P.2d 237). The question whether a particular zoning restriction results in a taking by inverse condemnation is “a question of fact to be determined by trial of the issue.” (Eldridge v. City of Palo Alto, supra, 57 Cal.App.3d 613, 628, 129 Cal.Rptr. 575, 584.) On review, the appellate court looks for substantial evidence to support the finding below (Foreman & Clark Corp. v. Fallon, 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362).

When the government restricts a landowner's use of his property, it is important to determine whether it is doing so under the police power or under the power of eminent domain because this is what governs the question of compensation. However, there is no set formula to distinguish a regulation from a taking or to draw the line where regulation ends and taking begins. Cases which involve the appropriation of land by the state or use of the land by the public clearly demand the state to take title and pay for the taking; cases where the landowner is prohibited from noxious use of his land, for example as a gravel pit,^[FN2] no compensation is due even though the landowner may be effectively prevented from all use of his land. From another point of view, where the government acts in its enterprise capacity, acquiring assets from the citizenry for its own account, as it were, then payment must be made; where the government mediates disputes among competing alternatives, such as prohibiting pigs in the backyard, it is merely regulating the private interests in the community. One commentator has suggested that the compensation clause in the Constitution never was meant to preserve the economic status quo; rather, it is to serve as a curb on arbitrary government action (Sax, Takings and the Police Power, 74 Yale L.J., 36, 37-40, 58, 62-63). However, these guidelines are not always of great help in answering whether a governmental action is a regulation or a taking.

Stripped to its bare essentials, we are asked here whether a person with land zoned for agriculture and manufacturing but lying within the open space area of the general plan can be denied all use of his land and denied compensation. It is easy to say the public will enjoy the open space and the state has acquired the property in its enterprise capacity, thus warranting payment; it is equally easy to say that any use of the property is noxious and the government can regulate it by preventing all (noxious) uses. Recognizing that a downzoning, as long as it is reasonable, is not a basis for inverse condemnation, what effect do the regulations of the general plan have?

Zoning and the general plan are closely interrelated because they both deal with land use, but each performs an essentially different function. Zoning is very precise and legally restricts present land use, while the general plan is merely a planning document which is to serve as a guide to future land use. In California general plans are mandatory (Gov.Code s 65300 et seq.); provision is made for their amendment three times a year (Gov.Code s 65361) which highlights the fact that they are not final documents neither completed nor inflexible. San Diego's General Plan states in the legend:

“NOTE: This map presents General Plan land use and circulation policies and proposals in a generalized, graphic form. It is not a zoning map and should not be so construed.”

Notwithstanding the differences in their purpose, scope and function, zoning and the general plan become inextricably linked by the passage of AB 1301 which mandates that zoning be consistent with the general plan (Gov.Code s 65860). At the same time, laws were passed requiring that the issuance of building permits, approval of subdivision maps and adoption of open space zoning be dependent on the proposal being consistent with the local open-space element (Gov.Code s 65567). Depending on the jurisdiction's definition of open space, it would be possible for a parcel within the open space element to be zoned light manufacturing as is the case here and still be consistent with the general plan.^[FN3] However, the issue here should be moot since these provisions requiring consistency do not apply to charter cities such as San Diego unless the City has adopted similar ordinances. This the City has not done (Gov.Code ss 65700, 65803; Dale v. City of Mountain View, 55 Cal.App.3d 101, 108, fn. 5, 127 Cal.Rptr. 520). Thus, here, the general plan should be merely a planning document and should not legally bind the City in making land use decisions.

Because the general plan lacks definiteness and finality, there can be no claim in inverse condemnation because land falls within a certain category on an adopted plan (Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 119-120, 109 Cal.Rptr. 799, 514 P.2d 111). The mere “planning in anticipation of a public improvement is not a taking” (Hilltop Properties v. State of California, 233 Cal.App.2d 349, 356, 43 Cal.Rptr. 605, 609). Even an announcement that an agency intends to condemn a property results in a taking only when a city does some unequivocal act which shows it is proceeding with a planned improvement (Hilltop Properties v. State of California, supra, 233 Cal.App.2d 349, 356, 43 Cal.Rptr. 605). However, even if a bond issue is proposed and certain properties are singled out for purchase if the bond issue passes, this is not a sufficiently unequivocal act to give rise to an action in inverse condemnation (see City of Walnut Creek v. Leadership Housing Systems, 73 Cal.App.3d 611, 622, 140 Cal.Rptr. 690).

In summary, the act of downzoning is not compensable unless the regulation is unreasonable or an attempt by the government to lower the value of the land before buying it. Adoption of a general plan does not result in condemnation unless there are additional specific acts which commit the governmental agency to purchase the property. Here there is no legal requirement that the zoning be consistent with the general plan. However, a review of the record shows this was an underlying premise in the court below: expert witnesses testified there must be consistency between zoning and the general plan; counsel for the parties agreed this was the way things were done; City brings to our attention in its briefs the fact it is exempt from the consistency provisions but does not follow through to conclude that the court below made its decision under improper law.^[FN4] As a charter city, San Diego is exempt from the requirements that building permits, subdivision maps and its acquisition and disposal of land be consistent with the open space plan unless the City adopts ordinances to that effect (Gov.Code ss 65566, 65567, 65700). Even though the City has not adopted the necessary statutes, the City's Planning Department includes these requirements in its publication “A Plan for the Preservation of Natural Parks for San Diego.” It appears the City vascillates on this question and thus has the opportunity to deny projects on the basis of inconsistency with the general plan and to deny inverse condemnation because it is not legally bound to have consistency. Although the City weakly protests in its briefs, from the record presented to this court it is clear that even though City may not have been legally bound to have its zoning consistent with its general plan, the City follows this procedure as a matter of policy. The fact that land is within the open space element and its zoning and use are subject to open space constraints, does not constitute inverse condemnation as a matter of law. As noted earlier, the determination there has been inverse condemnation through excessive regulation is a factual matter and we look for substantial evidence to support the finding.

The appellate court presumes the judgment is correct [Denham v. Superior Court, 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193] and resolves conflicts in the evidence in support of the judgment (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, 496 P.2d 480). Here, the trial court found:

“Due to the continuing course of conduct of the defendant City culminating in June of 1973, and, in particular, the designation of substantially all of the subject property as open space as previously described above, plaintiff has been deprived of all practical, beneficial or economic use of the property designated as open space, and has further suffered severance damage with respect to the balance of the subject property.

“No development could proceed on the property designated as open space unless it was consistent with open space. In light of the particular characteristics of the . . . property, there exists no practical, beneficial or economic use of the . . . property designated as open space which is consistent with open space.”

Here, City has not denied Company a permit to develop the land. Rather Company presented expert witnesses who testified the land could not be used for agriculture because of the soil's high salt content; it could not be used for residences because the land is in a flood plan; it could not be used economically for grazing; it could not be used for a golf course because of poor drainage. In short, the only possible use of the land was for industrial. But, there was testimony by experts that City required zoning to be consistent with the general plan; the City's definitions of open space (see fn. 3) give rise to the inference that industrial use would not be permitted in the open space area; the City's own expert testified he had never seen an industrial development that would be consistent with open space although he did not rule out the possibility entirely.^[FN5] The clear inference is that City would deny any application for industrial development on this parcel because of the open space designation on the general plan. In addition, there was expert testimony that after the open space element was adopted, the land had no economic use and no one would buy it. This was substantial evidence to support the court's conclusion there was inverse condemnation.

City apparently agrees with this assessment as shown by a letter to the court after oral argument in which it states: “Appellant submits that this is not a police power case. It is an eminent domain case and falls in the category of unreasonable precondemnation activity.” City continues there was no firm declaration of intent to condemn the property and, thus, no unreasonable precondemnation activity. The question, thus becomes when did or will condemnation occur? As noted above, it is settled law that a downzoning, a diminution in value, a general plan designation, an announcement of future condemnation, or the inclusion of a parcel to be purchased if a bond issue passes when taken alone is not sufficient to warrant compensation for inverse condemnation; the fact land is designated as open space does not necessarily preclude its use or make the land totally valueless and cannot constitute inverse condemnation as a matter of law. Rather Company must show “(1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value” (Klopping v. City of Whittier, 8 Cal.3d 39, 52, 104 Cal.Rptr. 1, 11, 500 P.2d 1345, 1355). Here because of the location and the peculiar characteristics of this particular parcel the land was suited only for industrial use which City would not permit. Consequently, the land had no beneficial or economic use except as open space. This was the result of unreasonable regulation and constituted a taking. The condemnation occurred when City placed the land in the open space zone subject to zoning in which it would not allow the owner any use of its property, thus making it worthless.

City claims Company is not entitled to relief because it did not try to get a conditional use permit nor did it establish that City would not grant a rezoning or amend the general plan. Both City and its amicus curiae characterize this as a failure on Company's part to exhaust its administrative remedies, a necessary prelude for the court to acquire jurisdiction (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942). However, Company here was not seeking to develop its land, a procedure which is handled by the administrative branch of the law and which would normally require exhaustion of remedies; Company was not trying to get a building permit (see Dunham v. City of Westminster, 202 Cal.App.2d 245, 247, 20 Cal.Rptr. 772; Igna v. City of Baldwin Park, 9 Cal.App.3d 909, 911, 88 Cal.Rptr. 581; Ogo Associates v. City of Torrance, 37 Cal.App.3d 830, 832, 112 Cal.Rptr. 761); Company was not trying to enjoin City from enforcing the zoning applicable to its property (see Metcalf v. County of Los Angeles, 24 Cal.2d 267, 268, 148 P.2d 645; Banville v. County of Los Angeles, 180 Cal.App.2d 563, 565, 4 Cal.Rptr. 458); rather Company sought only to recover damages in inverse condemnation for a taking of its property. (See Sneed v. County of Riverside, 218 Cal.App.2d 205, 212, 32 Cal.Rptr. 318.) We know of no administrative agency that handles condemnation suits; this is a matter for the courts. There was no failure to exhaust any administrative remedy since none existed (see Ramos v. County of Madera, 4 Cal.3d 685, 691, 94 Cal.Rptr. 421, 484 P.2d 93).

City says if its acts constitute a taking, Company is not entitled to money damages but only to have the offensive regulations set aside. It contends damages are inappropriate because there has been no actual use of the land by the public and, in essence, Company has not sustained any damage.

The proper remedy depends on what acts of the City are challenged and the findings of the trial court. If the City has acted arbitrarily or discriminatorily in passing the ordinance in question, the landowner should use administrative mandate to have the ordinance changed (HFH, Ltd. v. Superior Court, supra, 15 Cal.3d 508, 516 fn. 13, 125 Cal.Rptr. 365, 542 P.2d 237); if the City has enacted an unconstitutional or invalid zoning ordinance, the landowner may seek mandate, injunctive relief or declaratory relief (Pinheiro v. County of Marin, supra, 60 Cal.App.3d 323, 326, fn. 2, 131 Cal.Rptr. 633) and the governmental agency is immune from any tort liability (Gov.Code s 818.2; State of California v. Superior Court (Veta), 12 Cal.3d 237, 245-247, 115 Cal.Rptr. 497, 524 P.2d 1281); if the zoning is valid but so harsh that it deprives the owner of all beneficial use of its land, there has been a condemnation and damages are proper (see Eldridge v. City of Palo Alto, supra, 57 Cal.App.3d 613, 618, 129 Cal.Rptr. 575).

Here Company did not claim the zoning ordinance or the open space element were invalid in any way. Rather it contended and presented evidence that the combination of the zoning on the property plus its inclusion in the open space element plus the City's policy of requiring consistency between zoning and the general plan plus City's overtures to purchase the land for open space had deprived it of the beneficial use of its land. The trial court so found. This is an example of inverse condemnation and the landowner should, under the Constitution, be compensated.

City says that if there was a taking and if compensation is due, the trial court erred in awarding interest from the date of the taking rather than from the date of judgment. Code of Civil Procedure section 1255b, cited by the City, and in effect at the time suit was commenced,^[FN6] provides in part:

“(a) The compensation and damages awarded in an eminent domain proceeding shall draw legal interest from the earliest of the following dates:

“(1) The date of the entry of judgment.

“(2) The date that the possession of the property sought to be condemned is taken or the damage thereto occurs.

“(3) The date after which the plaintiff may take possession of the property as stated in an order authorizing the plaintiff to take possession.”

However, former section 1255b deals with eminent domain proceedings and is not applicable here (see Holtz v. San Francisco Bay Area Rapid Transit Dist., 17 Cal.3d 648, fn. 11, 131 Cal.Rptr. 646, 552 P.2d 430).

City says interest should be paid from the time of judgment because no one has interfered with Company's use of the property nor has there been any actual damage to the property. However, in Holtz it was the Transit District's removal of lateral support on adjoining property that caused structural damage to improvements on Holtz's land. The Transit District suggested there should be no prejudgment interest because Holtz was not deprived of the use of his property even though repairs were necessary. The Supreme Court responded:

“The contention that an actual taking or dispossession is required in order to justify prejudgment interest in every case lacks merit. The right to prejudgment interest in inverse condemnation accrues as of the date the compensable taking or injury occurred without regard to the nature or scope of the compensable event.” (Emphasis ours; Holtz v. San Francisco Bay Area Rapid Transit Dist., 17 Cal.3d 648, 657, 131 Cal.Rptr. 646, 653, 552 P.2d 430, 437.)

Here Company's land became the subject of inverse condemnation when the open space element was adopted and, in turn, triggered City's policy of not allowing development of the property. There was no error in awarding prejudgment interest.

City's amicus curiae, the Attorney General, is correct in saying the City's efforts to acquire Company's project by raising the money through a bond issue do not constitute precondemnation blight (see City of Walnut Creek v. Leadership Housing Systems, supra, 73 Cal.App.3d 611, 622, 140 Cal.Rptr. 690).

City claims the trial court erred in allowing severance damages because there was no unity of use and no physical contiguity between the condemned and severed portions. Here the condemned parcel was physically separated by a road from other pieces of the Company's land: one was leased by Company and not owned in fee and the jury, in a special finding, did not award any damages due to its severance; the other parcel was suitable for industrial development and was zoned just like the piece across the street. However, the fact the two parcels were separated by a road is immaterial as long as there is access between them and the use of the land taken is not dissimilar to that of the remainder (City of Los Angeles v. Wolfe, 6 Cal.3d 326, 330, 99 Cal.Rptr. 21, 491 P.2d 813). Here there was testimony the area deemed feasible for industrial development included the remainder parcel. There was no error in awarding severance damages.

City argues the trial court erred when it admitted into evidence how much Company had paid for the land originally. Here there was a bifurcated trial with the court determining liability and the jury damages. In order to establish liability, Company had to show that one of its property rights had been invaded and this had directly caused injury (Selby Realty Co. v. City of San Buenaventura, supra, 10 Cal.3d 110, 119-120, 109 Cal.Rptr. 799, 514 P.2d 111). City contends correctly the purchase price of the land is irrelevant because a diminution in the value of the land due to a change in zoning does not result in a taking. However, it is relevant to prove the Company suffered injury. This was not error.

City claims the trial court erred in admitting into evidence the testimony of two expert witnesses, each of whom said he would not have advised Company to apply for an industrial development permit because to do so would have been a waste of time and money. However, this testimony was not admitted for the purpose of showing whether City would approve or deny development; rather it was admitted to explain why Company had not tried to get a permit. This was relevant and its admission was not reversible error.

City claims the court erred in compelling City Councilman Floyd Morrow to answer hypothetical questions at an oral deposition. The questions related to Morrow's interpretation as an expert witness of “consistency” with the general plan^[FN7] and potential use of the subject property. City is concerned because Mr. Gallagher, an expert appraiser, relied in part on Morrow'sdeposition in arriving at his conclusion that the highest and best use of the property was public open space. However, City failed at the trial level to preserve this issue for appeal because it did not object to or move to strike Gallagher's testimony insofar as he relied on Morrow's deposition (see Bardessono v. Michels, 3 Cal.3d 780, 794, 91 Cal.Rptr. 760, 478 P.2d 480). Notwithstanding City's failure to object, the questions asked were relevant to a determination of the highest and best use of the property. It is proper to discover an expert's opinion through depositions using hypothetical questions (Dow Chemical Co. v. Superior Court, 2 Cal.App.3d 1, 10, 82 Cal.Rptr. 288; Zelayeta v. Pacific Greyhound Lines, 104 Cal.App.2d 716, 724, 232 P.2d 572). The questions posed to Morrow asked for his opinion as an expert and did not seek to trace his thought processes or motives in passing some particular piece of legislation; the argument this material was not discoverable because of a legislator's privilege is misplaced (County of Los Angeles v. Superior Court (Burroughs), 13 Cal.3d 721, 730-731, 119 Cal.Rptr. 631, 532 P.2d 495). Even if the order compelling answers were improper the resulting prejudice was not sufficient to cause reversible error. The answers in the deposition were only one source of information used by Gallagher in coming to his opinion; he also relied on publications put out by City, opinions of attorneys who were experts in land use matters, his personal experience in appraising other open space property and interviews with potential purchasers and developers. The trial court had the necessary information to be able to assess how much weight to give to Gallagher's testimony.

City complains there is no evidence to support findings 16 and 24 which state:

“16. On April 17, 1973, the City Council of the defendant City adopted a resolution of public convenience and necessity regarding the acquisition of park reserve areas. This resolution did not contain descriptions of specific properties, but referred to a 22.5 million dollar bond issue being proposed for the September, 1973, municipal election. Subsequently, the publicity for this bond issue identified the subject property as one of the properties to be acquired, and newspaper articles appeared prior to the election with maps showing the outlines of the subject property and indicating its acquisition.

“24. Plans were finalized for inclusion of an open space bond issue on the September 18, 1973, municipal election ballot. During the campaign leading up to this election, various presentations and publicity depicted the subject property as property to be acquired for public use by designating it on various graphic representations utilized.”

City says the land was only a proposed park site which would be purchased only if the bond issue passed. However, on appeal the court presumes the judgment is correct and views the evidence in the light most favorable to the prevailing party (Nestle v. City of Santa Monica, supra, 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, 496 P.2d 480). Here, the City's resolution, adopted April 17, 1973, established the need to acquire park reserve areas “to be subsequently identified” as part of a bond issue on the September 1973 ballot. The property here was later identified as a component part of the park reserve system; the property appeared on a map in the San Diego Union as one which was to be acquired under the park bonding issue; it was designated for purchase in the literature given to voters. This supports the findings made by the trial court.

City says there is no evidence to support findings 29 and 32 which read:

“29. The continuing course of conduct of the defendant City culminating in June of 1973, and, in particular, the designation of substantially all of the subject property as open space as previously described above, plaintiff has been deprived of all practical, beneficial or economic use of the property designated as open space, and has further suffered severance damages with respect to the balance of the subject property.

“32. Following the actions of the defendant City in June of 1973, it would have been totally impractical and futile for plaintiff to have applied to defendant City for the approval of any development of the property designated as open space or the remainder of the subject property.”

City argues there is no evidence that City would not allow Company to use the land since Company had not applied for and been denied a permit. However, as outlined earlier, Company presented evidence the property was not good for anything except industrial usage; there was an inference from the City's policy of making zoning consistent with the general plan combined with its definitions of open space and the fact it had adopted a resolution to acquire properties and made overtures as to this land that City would not permit industrial development here; there was expert testimony there was no practical, beneficial or economic use to which the property could be put; there was testimony the best use of the land was public ownership as open space; there was expert testimony the land was not marketable.

City says only about one-half of Company's property that was condemned was rezoned (see fn. 1). However, it was not the rezoning in itself which resulted in the taking. Rather, Company owns land which because of its peculiar geographic situation and topography has a very limited number of uses. It is the combination of this and other factors, such as zoning, general plan, the “consistency” policy, and the resolution to acquire property which led to the condemnation.

City says Company's witnesses testified only as to the economic feasibility of developing the property; this City claims is merely another version of the diminution of value rule and is not a sufficient basis for inverse condemnation (Pinheiro v. County of Marin, supra, 60 Cal.App.3d 323, 325, 131 Cal.Rptr. 633). The question asked is whether government regulation has deprived the owner of the beneficial use of its land. Here there was evidence Company could not develop this land in any way. This is more than just decreasing the value of the land; it is destroying it completely.

City says the Company's witnesses contradict themselves when they say it would be futile to seek building approval from the City because none of the experts had that many personal experiences in trying to get permits. However, this goes to the weight of the evidence, a determination made by the fact-finder.

City argues there is no evidence to support finding of fact number 31 which reads:

“31. Since June 19, 1973, the property designated as open space has been devoted to use by the public as open space.”

There is no evidence of actual physical invasion of the property. However, this is exactly what the City is trying to do by acquiring the property, that is, keep it from being used. The Attorney General in its brief argues for extensive protection of the sensitive estuarine ecosystem from the harmful effects of intrusion. The objective here is to have the property remain unused, undisturbed and in its natural state so open space and scenic vistas may be preserved. In this sense the property is being “used” by the public as it has been ever since the date when all the factors coalesced to effect the taking. In addition, there was expert testimony the property had been given over to public use. This was substantial evidence to support the finding.

City challenges the support for and validity of Conclusion of Law #1 which states:

“1. The actions of defendant City against plaintiff's property were motivated to achieve a public purpose, namely, preservation of open space, without payment of just compensation and were so burdensome and oppressive as to deprive plaintiff of any practical, beneficial or economic use of the property designated as open space, and, therefore, taken as a whole, constitute a taking of the portion of plaintiff's property designated as open space without due process of law and just compensation within the meaning of the California and United States constitutions, and further constitute a damaging of the remainder of the larger parcel of plaintiff's property.”

City says there was no evidence here that its acts were not a legitimate exercise of the police power. Whether what may have begun as a legitimate use of the police power became so unreasonable as to be a taking is a question of fact. As noted earlier there was evidence to support a finding that Company had been deprived of all beneficial use of its land. There was evidence one city councilman had stated the city should preserve as much open space as possible through regulatory measures such as agricultural flood plain zoning to reduce acquisition costs; the City Attorney and the Planning Commission were told to prepare a list of open space areas where the City could proceed with agricultural, flood plain and/or LC (limited control) zoning; the open space maps were changed to include more of Company's land without actual notice to the Company; the City reaffirmed some zoning as industrial and changed some to future industrial and then two weeks later placed the land in open space. This is substantial evidence to support the trial court's conclusion.

The judgment is affirmed.

FOOTNOTES

1.  From 1966-1973 the property was zoned:Industrial (M-1A)116 acresAgricultural (A-1-1)112 acres    “ holding zoneAfter the rezoning the land was classed as:Industrial (M-1A)77 acresAgricultural (A-1-10)39 acres    “ holdingzone (A-1-1) with 50112 acresacres to be consideredfor future industrialuse.

2.  Consolidated Rock Products Co. v. City of Los Angeles, supra, 57 Cal.2d 515, 518, 20 Cal.Rptr. 638, 370 P.2d 342.

3.  The City's definition of open space makes it less than likely a manufacturing zone would be found consistent with open space. On the general plan “open space” is: “any urban land or water surface that is essentially open or natural in character, and which has appreciable utility for park and recreation purposes, conservation of land, water or other natural resources or historic or scenic purposes.”Municipal Code section 61.0601 defines open space as: “any land or water area: (1) which is primarily in its natural state and has value for park and recreation purposes, and (2) which, in the opinion of the City Council of the City, (a) conforms to the criteria established for open space land set forth in the ‘Progress Guide and General Plan for The City of San Diego’ as amended, and (b) would, if retained in its natural state or improved, enhance the present or potential value of abutting or surrounding properties or would maintain or enhance the conservation of natural or scenic resources.”

4.  Rather, City somewhat inconsistently argues there was no condemnation here because no zoning classification is inconsistent per se with open space.

5.  City's expert witness testified that a project would not be denied only because it was located within the open space zone and opined that a design for industrial use of the property could be consistent with open space although he concluded “I haven't seen one, but I think that that's possible.”

6.  Section 1255b of the Code of Civil Procedure was repealed effective July 1, 1976 and its provisions are now contained in Code of Civil Procedure section 1268.310. Under Code of Civil Procedure section 1230.065 section 1255b would be used here.

7.  In substance the three questions were:1) In your opinion as a land use control expert, may a development plan for the subject property be denied by the City of San Diego on the sole ground that the subject property has been designated as open-space for public acquisition in the open-space element of the City's General Plan?2) In your opinion, pursuant to Government Code s 65567, may a building permit or subdivision map be properly denied for the sole reason that the use contemplated by the permit or map is not consistent with the open-space element of the General Plan of the City?3) In your opinion, following the City's adoption of the open-space element of the General Plan in June 1973 were there any practical, beneficial or economic uses to which the subject property could have thereafter been devoted? If so, what?

GERALD BROWN, Presiding Justice.

COLOGNE and STANIFORTH, JJ., concur. Rehearing denied; STANIFORTH, J., dissenting.