CITY OF LOS ANGELES v. CHADWICK (1991)

Defendant Spencer Chadwick (Chadwick) appeals from a stipulated judgment and final order of condemnation under the Eminent Domain Law (Code Civ.Proc., § 1230.010 et seq.) ¹ authorizing plaintiff City of Los Angeles (City) to condemn and build a fire station on his property and setting the value of his property at $336,935.73, including interest.   The stipulated judgment states that Chadwick “continues to deny that [the City] is authorized to condemn [Chadwick's property] and that the acquisition [of the property] is necessary for the public improvement project.  [Chadwick] retains the right to appeal from that provision in this Judgment that [the City] is authorized to condemn [Chadwick's property] but does not retain the right to appeal from the determination of the just compensation herein.”   On these facts, we conclude that the City denied Chadwick both statutory and constitutional due process by failing to provide him adequate notice and a meaningful opportunity to contest its decision to condemn his property.   We reverse the judgment.

FACTS

In 1977 the City began a search to relocate and replace Fire Station 52, located at 1010 North Van Ness Avenue, because it was one of 17 aging and inadequate stations found unsafe under the City's Earthquake Hazard Reduction Ordinance.   On May 27, 1983, the Fire Department filed a California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) initial study and checklist with the City Clerk which proposed that Station 52 be relocated to the northwest corner of Melrose and Oxford Avenues.   The checklist also stated that the proposed site had been inspected, the project would not require demolition of any structures, and the project did not require an environmental impact report (EIR) because it “COULD NOT have a significant effect on the environment and a NEGATIVE DECLARATION will be prepared.”   In fact, Chadwick owned one of three lots comprising the proposed site and operated his business from a building on his lot.

On June 9, 1983, the Fire Commissioners Board approved the project.   On June 14, 1983, the Fire Department filed a CEQA Negative Declaration with the City Clerk that no environmental impact report was required.   On August 3, 1983, the Fire Department recommended that the Fire Commissioners Board recommend that the City Council adopt the Negative Declaration and approve the project and the property acquisition.   On August 4, 1983, the City Planning Director approved the project and recommended its approval by the City Council.   On August 18, 1983, the Fire Commissioners Board approved the Fire Department's August 3, 1983, recommendation.

During autumn 1983, City representatives inspected Chadwick's property and told him his property was being considered with other sites as a possible location for the new fire station.   Chadwick told the inspectors he did not want to sell his property.   This was the first Chadwick knew of the project.   Chadwick contacted a Fire Department captain who was a customer.   The captain told Chadwick nothing would come of it and not to worry.   On December 15, 1983, the City Council's Public Works Committee recommended that the Council adopt the negative declaration, and approve the project and the property acquisition.   On January 9, 1984, the Council adopted the Public Works Committee recommendation.   On January 5, 1984, the City filed the CEQA Negative Declaration Notice of Determination with the County Clerk.   The notice stated that “[t]he filing of the notice starts a 30–day statute of limitations on court challenges to the approval of the project pursuant to Public Resources Code Section 21167.”

On February 10, 1984, the City sent Chadwick his first written notice of the project.   The letter stated that the City had appraised Chadwick's property and offered to buy it for $149,000.   The letter also said Chadwick might be eligible for $2,500 in housing assistance.   On February 21, 1984, Chadwick wrote back that he had told the inspectors he did not want to sell, that he ran his business from his building, planned to live on rental income from the property should he have to retire, believed his business assets insufficient to pay off his mortgage, and, at 74 years of age, might be unable to resume business at a new location.   In a March 23, 1984, letter, the City replied that project site selection began in 1977 and stated that three nearby alternative sites were rejected because of insufficient lot depth, grading problems, and excessive purchase costs.   An alternative site on the northeast corner of the intersection was eliminated when a bank bought the property and built a new branch before the City could purchase the lot.

In May 1984 the City bought the other two lots which comprised the project site.   The City Council held a formal condemnation hearing for all three lots on July 13 and August 14 and 28, 1984.   Chadwick was formally notified of the hearings, appeared, offered testimony and evidence regarding alternative sites, alternative design on the same site which would not require purchase of his lot, and hardship if he were forced to sell.   Nonetheless, on September 4, 1984, the City Council passed an ordinance which stated “that the public interest and necessity require the ‘Fire Station No. 52 ․’ Improvement Project and the acquisition of property therefor ․, the project is planned and located in the manner which is most compatible with the greatest public good and the least private injury, and the property described herein is necessary for the project․”  The ordinance also stated that the property had been appraised, was to be acquired for public buildings, was within the City, and that Chadwick had been offered just compensation.   On September 6, 1984, the mayor signed the ordinance.

On October 29, 1984, the City filed this eminent domain case to condemn Chadwick's property.   At various times while the case was pending, Chadwick filed six writ petitions in the Court of Appeal, all of which were summarily denied.  (Nos. B013941, B016435, B017514, B018839, B019627, B027294.)   On April 26, 1985, the trial court conducted a trial limited to whether the City properly exercised its eminent domain power and could condemn Chadwick's property.   Among other things, Chadwick argued that he had been denied adequate notice and a reasonable opportunity to be heard.   The records documenting the facts described above were attached as exhibits to Chadwick's papers and were not contested by the City.   The trial court ruled:  “The issues presented ․ are:  [¶] 1. Are the statutes and procedure followed by the City in th[ese] condemnation proceedings constitutional?  [¶] 2. Was there a ‘gross abuse of discretion’ by the Council?  [¶] On the record before this court, it finds that the law under which the condemnation proceeded, and the actions taken were constitutional.   The court further determines that there was no abuse of discretion by the council.”   On June 7, 1985, the trial court filed an interlocutory judgment of condemnation prepared by the City's counsel which stated that the court found “1. The statutes and procedures followed by the City in deciding to condemn [Chadwick's] property and in instituting and prosecuting this condemnation proceeding are constitutional.  [¶] 2. The City Council did not commit any abuse of discretion in deciding to condemn [Chadwick's] property.  [¶] 3. The City is authorized to condemn [Chadwick's] property together with the right to construct and maintain the public improvement․”  On the same day, the trial court filed its statement of decision, also prepared by the City's counsel, which stated that Chadwick “argued that his due process rights ․ were violated because he was not given a formal opportunity to be heard during the preliminary planning of the project on the question of whether or not it was necessary to take his property․  The question of what property is to be taken for a public use is legislative and not administrative or judicial.  [ ( ]People v. Chevalier (1959) 52 Cal.2d 299, 304–305, 340 P.2d 598․[ ) ]  Mr. Chadwick's rights to just compensation are guaranteed by California Constitution Article I, Section 19, and the California Eminent Domain Law ( ․ Section 1230.010 et seq.) and no unconstitutionality in California law or City procedures appears.   [¶] ․ [¶] Pursuant to ․ Section 1250.250(a) the ordinance conclusively establishes the prerequisites to the right to take specified in Section 1240.030.   This conclusive effect applies unless the adoption or contents of the ordinance were influenced or affected by ‘gross abuse of discretion.’   [ ( ] ․ Section 1245.255(b).[ ) ]  The party asserting the existence of such a gross abuse bears the burden of establishing it.   Mr. Chadwick has presented no evidence which tends to indicate any abuse of discretion and therefore he has not sustained this burden.  [¶] The Court finds that the law under which this condemnation proceeded and the actions taken were constitutional.   The court further determines that there was no abuse of discretion by the Council.”

On January 17, 1986, the trial court issued a writ of assistance ordering the Los Angeles County Sheriff or Marshall to evict Chadwick and put the City into possession.   The City took possession in February 1986 and later built the new fire station.   On July 10, 1990, the trial court impliedly denied Chadwick's motion to dismiss for failure to try the case within five years (§§ 583.310, 583.360) and set the valuation trial for October 15, 1990.   On October 9, 1990, the parties settled the valuation portion of the case and filed the stipulation and judgment and final order of condemnation.

ISSUES

Chadwick contends the trial court erred in (I) rejecting his defenses that the City deprived him of his statutory and due process rights to adequate notice of and opportunity to oppose the City's decision to build a fire station on and condemn his property;  and (II) impliedly denying his motion to dismiss for the City's alleged failure to bring the case to trial within five years.

DISCUSSION

I

Chadwick's contention that the trial court erred in rejecting his defenses that the City deprived him of his statutory and due process rights to adequate notice of and opportunity to oppose the City's decision to build a fire station on and condemn his property is well taken.   Chadwick properly challenged the validity of the City's resolution of necessity as a defense to the eminent domain action.  “A person having an interest in the property described in a resolution of necessity adopted by the governing body of the public entity pursuant to this article may obtain judicial review of the validity of the resolution:  [¶] ․ [¶] (2) After the commencement of the eminent domain proceeding, by objection to the right to take pursuant to this title.”  (§ 1245.255, subd. (a)(2).)

The Eminent Domain Law defines the requirements for a valid condemnation action.  “The power of eminent domain may be exercised to acquire property for a proposed project only if all of the following are established:  [¶] (a) The public interest and necessity require the project.  [¶] (b) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.  [¶] (c) The property sought to be acquired is necessary for the project.”  (§ 1240.030.)   Once these requirements are met, “[a] public entity may not commence an eminent domain proceeding until its governing body has adopted a resolution of necessity that meets the requirements of this article.”  (§ 1245.220.)   However, “[t]he governing body of the public entity may adopt a resolution of necessity only after the governing body has given each person whose property is to be acquired by eminent domain ․ notice and a reasonable opportunity to appear and be heard on the matters referred to in Section 1240.030.”  (§ 1245.235, subd. (a).)  Absent certain irrelevant statutory exceptions, “a resolution of necessity adopted by the governing body of the public entity pursuant to this article conclusively establishes the matters referred to in Section 1240.030.”  (§ 1245.250, subd. (a).)  However, “[a] resolution of necessity does not have the effect prescribed in Section 1245.250 to the extent that its adoption or contents were influenced or affected by gross abuse of discretion by the governing body.”  (§ 1245.255, subd. (b).)

This statutory scheme was enacted in part to change the former law that there were no exceptions to the conclusive validity of the governing body's resolution of necessity.  (See former section 1241 (amended by Stats.1973, ch. 262, p. 658, § 1, and repealed by Stats.1975, ch. 1275, p. 3409, § 1);  People v. Chevalier (1959) 52 Cal.2d 299, 304, 340 P.2d 598 (“Because eminent domain is an inherent attribute of sovereignty, constitutional provisions merely place limitations upon its exercise.  [Citations.]  The only [constitutional] limitations placed upon the exercise of the right of eminent domain ․ are that the taking be for a ‘public use’ and that ‘just compensation’ be paid for such taking.   Each of these limitations creates a justiciable issue in eminent domain proceedings.   But ‘all other questions involved in the taking of private property are of a legislative nature.’   [Citation.]”))  The Chevalier court rejected a claim that a resolution of necessity may be challenged by showing fraud, bad faith, or abuse of discretion because former section 1241 provided no such exceptions.  (People v. Chevalier, supra, 52 Cal.2d at pp. 305–307, 340 P.2d 598.)   The 1975–1978 amendments to the Eminent Domain Law overruled People v. Chevalier, ibid., by creating the limited statutory “gross abuse of discretion” exception (§ 1245.255, subd. (b)) to the otherwise conclusive validity of a resolution of necessity (§ 1245.250, subd. (a).)  (Anaheim Redevelopment Agency v. Dusek (1987) 193 Cal.App.3d 249, 254–258, 239 Cal.Rptr. 319.)

 The property owner can prove a gross abuse of discretion by showing a lack of substantial evidence supporting the resolution (Huntington Park Redevelopment Agency v. Duncan (1983) 142 Cal.App.3d 17, 24–27, 190 Cal.Rptr. 744 (reversing a judgment for the property owners in an eminent domain case because they failed to show the required lack of substantial evidence)), or by showing that, at the time of the hearing to determine the necessity of the taking, the condemning agency had irrevocably committed itself to taking the property, regardless of evidence which might be presented.  (8 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 986, pp. 543–544;  Redevelopment Agency v. Norm's Slauson (1985) 173 Cal.App.3d 1121, 1125–1127, 219 Cal.Rptr. 365 (affirming the trial court's finding of a gross abuse of discretion and dismissal of condemnation proceedings where a redevelopment agency, before any notice to the property owner or commencement of condemnation hearings, agreed with a developer to acquire the owner's property and sell it to the developer to build housing desired by the agency, and issued and sold bonds to finance purchase of the property);  see Anaheim Redevelopment Agency v. Dusek, supra, 193 Cal.App.3d at p. 253, 239 Cal.Rptr. 319 (“It would be inappropriate to exempt the Agency's determination of necessity from judicial review without a preliminary showing the [property owners] had an opportunity to participate in the hearings preceding the adoption of the ․ plan and thus had knowledge of the imminency of condemnation of their property.”) (dictum).)

“[O]nce a defendant property owner establishes by substantial evidence that the resolution of necessity was invalidly adopted and because of a gross abuse of discretion is not entitled to its ordinary conclusive effect, the burden of proving the elements for a particular taking must rest on the governmental agency․  [T]he trial court must then determine whether the agency has made its case by a preponderance of the evidence.   Appellate review of the trial court's decision is limited by the substantial evidence test.   [Citations.]”  (Redevelopment Agency v. Norm's Slauson, supra, 173 Cal.App.3d at p. 1128, 219 Cal.Rptr. 365.)   The City did not dispute the facts before the trial court or on appeal.

 Chadwick demonstrated both types of gross abuse of discretion through undisputed facts.   The City's decision was unsupported by substantial evidence because, under section 1240.030, subdivision (b), the City must weigh the public good and private injury from a proposed project against those of alternative sites.  (See 8 Witkin, Summary of Cal. Law, supra, Constitutional Law, § 966, p. 525.)   Here, the City considered the public good of alternative sites and rejected them because they would produce less public good due to insufficient lot depth (resulting in a station too small to provide adequate fire-fighting capacity), grading problems (resulting in an inadequate or excessively expensive station), or greater acquisition costs (including the improved and more expensive new bank site) (providing an equivalent benefit at greater cost).   However, there is no evidence the City considered either the private injury caused by acquiring other sites, or the private injury to Chadwick from acquiring his property.   Indeed, the decision to select Chadwick's property erroneously assumed no buildings existed on his property, and rejected other sites before receipt of his February 21, 1984, letter outlining his potential injuries.   Moreover, the City must include the cost of relocation assistance (Gov.Code, § 7260 et seq.) in analyzing whether to acquire property for a public use.  (Gov.Code, § 7262.)   As these costs may vary from lot to lot, no meaningful decision can be made without comparing sites for private harm.   Thus, the City did not compare sites for private injury.

 More importantly, the proceedings here were even more of a sham than those which demonstrated gross abuse of discretion in Redevelopment Agency v. Norm's Slauson, supra, 173 Cal.App.3d 1121, 219 Cal.Rptr. 365.   While the City need not acquire property necessary for public use by eminent domain and may acquire such property by purchase or any means expressly consented to by the owner (§§ 1230.030, 1240.240), the City also must offer the owner what it believes to be just compensation as a condition precedent to enacting a valid resolution of necessity and initiating condemnation proceedings.  (§ 1245.230, subd. (c)(4);  Gov.Code, § 7267.2, subd. (a).)  The City unilaterally selected the site including Chadwick's property for the new fire station, rejected all other sites despite his telling the inspectors he would not sell, filed two negative EIR declarations which erroneously stated that the project would not require building demolition, officially approved the purchase, and let the statutory periods in which to challenge the negative declarations run before making the purchase offer required to validate the condemnation proceeding.   This procedure prevented Chadwick from making his objections known when alternative sites actually were being studied and his objections might have been considered.  (Indeed, when Chadwick informally contacted the fire department after learning his property was being considered, he was told not to worry.)   Then, having received Chadwick's February 21, 1984, letter outlining his resulting private harm if he were forced to sell, the City nonetheless bought the other two lots comprising the project location before giving Chadwick a hearing or any opportunity to contest the action.   These facts unequivocally demonstrate that, before the formal July and August 1984, hearing, the City irrevocably had committed to condemning Chadwick's property, and nothing he could have said (or did say) would be seriously considered or persuade the City to alter its decision.   The purchase offer to Chadwick was not an attempt to buy one of several possible locations, which might be reconsidered if resisted or if persuasive arguments were propounded for alternatives, but was merely a necessary prerequisite to forced sale by eminent domain.

Although the City technically offered Chadwick the notice and hearing required under section 1245.235, subdivision (a), it did so in a way which constituted a gross abuse of discretion under section 1245.255, subdivision (b).   The two statutes must be read together, and doing so compels the conclusion that, on these facts, the notice actually given Chadwick was statutorily inadequate.   We recognize that, in similar cases where the City seeks to buy a site with more than one owner, our ruling in effect requires the City to make its purchase offers conditional upon being accepted by all the owners.   If one owner refuses to sell, the City would have to notify the owners of and hold the resolution of necessity hearing before completing purchase of the other parcels, since only then, before expenditure of funds, would the refusing owner have even a minuscule chance of persuading the City to locate its project elsewhere or change its design.   We think this procedure creates no hardship for the City, which in any event would have to notify the owners of and hold the resolution of necessity hearing to condemn the property.   Thus, there is no evidence supporting the trial court's finding and it erred in finding no gross abuse of discretion.   Since the City presented no evidence that it considered the private injury to Chadwick or owners of any alternative sites before irrevocably deciding in effect to condemn Chadwick's property, the City failed to demonstrate that its decision nonetheless was supported by substantial evidence.  (Cf. San Bernardino County Flood Control Dist. v. Grabowski (1988) 205 Cal.App.3d 885, 896–899, 252 Cal.Rptr. 676 (condemnation order affirmed, other than the trial court's interest calculation, because property owners received notice and appeared but proposed no alternative plans or sites, there was no precommitment of district funds, and the plans were reasonable.)) ²

 In addition to violating the statutory prohibition against upholding a resolution of necessity tainted by a gross abuse of discretion, the City's action in depriving Chadwick of meaningful notice and a reasonable opportunity to contest the decision to condemn his property also deprived him of due process of law.   Although People v. Chevalier, supra, 52 Cal.2d at p. 304, 340 P.2d 598 stated that eminent domain proceedings are legislative in nature, and thus not subject to constitutional challenge except regarding whether the taking is for a public use and just compensation is paid, later cases cast doubt on the continuing validity of that conclusion.  “Due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest.  [Citations.]  [¶] It is equally well settled, however, that only those governmental decisions which are adjudicative in nature are subject to procedural due process principles.   Legislative action is not burdened by such requirements.   [Citations.]”  (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612, 156 Cal.Rptr. 718, 596 P.2d 1134.)  “[W]e distinguished ‘adjudicatory’ matters in which ‘the government's action affecting an individual [is] determined by facts peculiar to the individual case’ from ‘legislative’ decisions which involve the adoption of a ‘broad, generally applicable rule of conduct on the basis of general public policy.’  [Citations.]”  (Id. at p. 613, 156 Cal.Rptr. 718, 596 P.2d 1134.)   The court held that adoption of subdivision map plans which substantially affect the property rights of other landowners can be valid only if the affected property owners receive reasonable notice and an opportunity to be heard before the approval occurs, and that the notice given was inadequate.  (Id. at pp. 614–619, 156 Cal.Rptr. 718, 596 P.2d 1134.)

 We recognize that the Horn court did not address eminent domain law or mention People v. Chevalier, supra, 52 Cal.2d at pp. 304–307, 340 P.2d 598.   However, we think it unlikely that minimal constitutional procedural due process standards apply to procedures for adopting zoning and land use plans, which may result in the forced sale of property, but not to the actual eminent domain proceedings themselves.   If we recognized this distinction between zoning and land use planning and eminent domain law, agencies and governments could circumvent the constitutional notice provisions by not adopting formal plans and simply acquiring property by eminent domain.   Also, such a rule would lead to the anomolous result that property owners merely threatened with future forced sale of their property as part of a land use plan would be entitled to notice to challenge adoption of the plan, but property owners like Chadwick, whose property was actually taken for a single discreet project, could be constitutionally deprived of adequate notice and an opportunity to contest the decision before it became irrevocable.   Thus, we think the Horn standards for determining whether a particular government deprivation of significant property rights is a legislative or adjudicative act apply to eminent domain proceedings.

Other appellate courts agree.   In Conejo Recreation & Park Dist. v. Armstrong (1981) 114 Cal.App.3d 1016, 1021–1023, 170 Cal.Rptr. 891, the court found a due process deprivation where a property owner who the district knew was unwilling to sell was given notice of a hearing before the recreation district which sought to condemn the property, but was given no notice of an earlier hearing before the county board of supervisors which adopted a resolution of necessity authorizing the recreation district to condemn the property.   The court expressly applied Horn v. County of Ventura, supra, 24 Cal.3d 605, 156 Cal.Rptr. 718, 596 P.2d 1134, found the taking before it adjudicative, and affirmed dismissal of eminent domain proceedings because of lack of adequate notice to the property owners.   Likewise, in our case, the earlier decisions, without notice to Chadwick, by the fire department, council, and other agencies in effect to condemn his propertyand buy the other lots deprived him of due process.   In L & M Professional Consultants, Inc. v. Ferreira (1983) 146 Cal.App.3d 1038, 1053–1056, 194 Cal.Rptr. 695, the court stated that whether eminent domain proceedings are legislative or adjudicative may depend on the “particularity of the [agency's] decision and the small size and number of parcels involved and relatively few property owners affected․”  (Id. at p. 1054, 194 Cal.Rptr. 695.)   The court compared two lines of cases, one including Chevalier and the other including Horn, and then assumed, without deciding, that the particular condemnation proceeding before it was adjudicative because the agency so treated it.   The court affirmed the condemnation order because the property owners had notice, appeared, and presented voluminous evidence of alternative sites and plans, some of which were adopted by the agency.

The court in Anaheim Redevelopment Agency v. Dusek, supra, 193 Cal.App.3d 249, 239 Cal.Rptr. 319 (which reversed the dismissal of the agency's eminent domain complaint) found the particular condemnation proceeding before it legislative rather than adjudicative, because the case involved a taking as part of a redevelopment plan for an entire area.  (Id. at pp. 258–261, 239 Cal.Rptr. 319.)   The court analyzed the particular taking before it and did not merely conclude that all condemnation decisions are legislative.   The court did not mention either of the cases discussed in the preceding paragraph.

On the contrary, Chadwick's property was acquired to build a single fire station.   Neither below nor on appeal did the City contend that relocation of Fire Station 52 was part of some larger area or citywide plan.   Indeed, on appeal the City ignored Horn v. County of Ventura, supra, 24 Cal.3d 605, 156 Cal.Rptr. 718, 596 P.2d 1134 and Conejo Recreation & Park Dist. v. Armstrong, supra, 114 Cal.App.3d 1016, 170 Cal.Rptr. 891, despite Chadwick's reliance on both cases in his opening brief.   The City acquired only one site comprising three lots.   While citywide 17 obsolete and unsafe stations would be relocated, no new stations were contemplated and presumably only one would be built in any particular neighborhood, replacing, not adding to, the older station.   Thus, the overall impact on area residents, businesses, and traffic of moving the station from one place to another would be nil.   Moreover, relocating even 17 stations in a city as large as Los Angeles hardly equates to a redevelopment plan in which whole blocks or neighborhoods were razed and replaced.   On the other hand, the effect on the owners of the three lots was immense.   We conclude that this particular taking of a single site composed of only three lots to relocate one fire station was an adjudicative, not legislative, decision.   Thus, on these facts, Chadwick was deprived of due process by the inadequate notice and opportunity to reasonably challenge the irrevocable earlier decision in effect to condemn his property.   The trial court erred in rejecting this defense to the condemnation action.

We emphasize that our ruling requires only that a letter indicating the City's interest in or intent to purchase property for public use be sent to property owners before the decision to acquire by eminent domain, if necessary, becomes irrevocable.   Since, in any event, such letters must be (and here were) sent to initiate purchase negotiations and notify the owner of an impending hearing to authorize a resolution of necessity and later condemnation proceedings, our ruling requires nothing more than sending the letters earlier than was done here.   The City still could study and tentatively select one of several sites before giving such notice, so long as the property owners had an opportunity to be heard before an irrevocable decision to acquire was merely rubber stamped by aputative decision-making body.   The City must deal with recalcitrant property owners.   Our ruling merely requires that it consider (not necessarily adopt) their suggestions and protests.³

Chadwick essentially seeks a new valuation trial based on his former lot's value on the new trial date.   Chadwick neither disputes the City's current right to condemn the property nor seeks the destruction of the new fire station and restoration of his ownership.⁴

Accordingly, we reverse the judgment and remand the case for the trial court to hold a new valuation trial, with the value determined as of the date of the new trial.  (§ 1263.140.)

II

 Chadwick's contention that the trial court erred in denying his dismissal motion because the City did not bring the valuation portion of the case to trial within five years of filing suit lacks merit.   The trial and determination of the City's right to take complied with sections 583.310 and 583.360, and the trial court properly denied Chadwick's related dismissal motion.  (Brown v. Engstrom (1979) 89 Cal.App.3d 513, 518–519, 152 Cal.Rptr. 628.)   We deny Chadwick's motion, made for the first time in his reply brief, for appellate sanctions against the City.

DISPOSITION

We reverse the judgment.   The case is remanded for the trial court to hold a new valuation trial, with the value of the condemned property determined as of the date of the new trial.   Chadwick is entitled to his costs on appeal.

FOOTNOTES

1.   Unless otherwise noted, all further statutory references are to the Code of Civil Procedure.

2.   The trial court neither limited the right to take trial to whether Chadwick could demonstrate a gross abuse of discretion nor prohibited introduction of evidence demonstrating the resolution of necessity's validity.   Knowing that Chadwick was raising both statutory and constitutional due process notice challenges, the City rested after introducing the condemnation ordinance and supporting resolution of necessity, while reserving its right to present rebuttal evidence.   The City did not object to any of Chadwick's evidence, and did not offer rebuttal evidence.   The case was submitted after argument and before any ruling was announced.   Thus, the City cannot complain that it lacked opportunity to present additional evidence supporting the validity of its decision to condemn Chadwick's property.   In any event, our review is confined to the record before us.

3.   In its petition for rehearing, the City for the first time cited City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 64, 183 Cal.Rptr. 673, 646 P.2d 835 in support of its position that eminent domain proceedings are always legislative and that People v. Chevalier, supra, 52 Cal.2d 299, 340 P.2d 598 remains viable.   While the City of Oakland majority cited Chevalier, the issue before it was whether eminent domain law authorized seizure of intangible property.   In a joint amicus brief submitted in support of the City's petition for rehearing, several cities and redevelopment agencies cited Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 516–519, 169 Cal.Rptr. 904, 620 P.2d 565 in support of that proposition.  Arnel held that rezoning of even small parcels of private property was legislative and could be accomplished by initiative.   Over Justice Richardson's spirited dissent, the Arnel majority held that enactment or amendment of zoning ordinances is legislative regardless of the size or number of affected parcels.   Neither case addresses the issues before us.

4.   Where, as here, courts uphold property owners' challenges to a public entity's right to take their property, the courts can order a conditional dismissal unless corrective and remedial action is taken.  (§ 1260.120, subd. (c)(2).)   Where an eminent domain judgment is reversed, the public entity may reacquire possession (§ 1268.210, subd. (c)), and the City could enact a new resolution of necessity authorizing new condemnation proceedings.  (§ 1245.255, subd. (c).)Given current circumstances, if the City were forced to give notice and hold a new resolution of necessity hearing, we think it impossible that Chadwick could persuade the City not to condemn his property.   Renewed proceedings could only result in enactment of a valid resolution of necessity authorizing condemnation of the property, which would be followed by a new eminent domain complaint.   Now that the new station has been built, choosing another site would mean the loss of funds expended for buying the three lots and construction, spending additional money to acquire other property, and imposing some private harm on other dispossessed owners.   This reduced public good and increased private harm now could not possibly be outweighed by any benefit in returning Chadwick's property, especially since he has long since moved his business.   Thus, the practical effect of an outright reversal would be the same:  a new valuation trial as of the date of filing the new eminent domain complaint.   Our result compensates the wronged property owner with the increased value of his property between the filing date of the first and second eminent domain complaints.  (Of course, if property values declined in the interim, the property owner's triumph would be a Pyrrhic victory.).

ORTEGA, Associate Justice.

DEVICH, Acting P.J., and VOGEL, J., concur.