ASSOCIATED HOME BUILDERS OF the GREATER EAST BAY, INCORPORATED, individually, and for the benefit of all its members, Plaintiff and Appellant, v. CITY OF WALNUT CREEK et al., Defendants and Respondents.
This is an appeal from a judgment in declaratory relief, sustaining the constitutionality and validity of Business and Professions Code section 115461 and Walnut Creek Municipal Code section 10–1.512, and supporting resolutions Nos. 1883 and 2225, which as applied to appellant nonprofit corporation and certain of its members, would require dedication of land for park and recreational purposes, as a condition of approval of their subdivision maps; or in lieu of dedication, or accompanying it, would require the payment of fees to the city.2
Business and Professions Code section 11546 does not enlarge the police power of cities, directly granted by California Constitution, article XI, section 7, but its enactment resulted from decisions which indicated that the general law, the Subdivision Map Act, preempted the field.3 We are concerned with the construction of both section 11546 and the local legislation in reference to California Constitution, article I, section 14, prohibiting the taking of private property for public use without just compensation; and the federal and state constitutional provisions securing due process and equal protection of the laws.4
Necessarily, our review is limited, in the absence of a record of specific action in relation to a specific subdivision5 (City of Tiburon v. Northwestern Pac. R. R. Co. (1970) 4 Cal.App.3d 160, 182, 84 Cal.Rptr. 469), but declaratory relief is proper. (Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 636–637, 12 Cal.Rptr. 671, 361 P.2d 247.) The legislative power must be upheld unless it manifestly infringes upon constitutional guaranties. (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461–462, 202 P.2d 38; Hart v. City of Beverly Hills (1939) 11 Cal.2d 343, 348, 79 P.2d 1080.) (But to give effect to the Constitutions, it is as much the duty of the courts to see that they are not evaded, as that they are not directly violated. (Parker v. Otis (1900) 130 Cal. 322, 326, 62 P. 571, 927.)) In essence, it is contended here that by a semantic inversion of the term ‘dedication,’ a voluntary act,6 to include its antonym, a compulsory taking of private property for public use as a condition precedent to approval of a subdivision map, an evasion is attempted. If that is necessarily so, such an arbitrary exaction will be nullified. (Mid-Way Cabinet, etc., Mfg. v. County of San Joaquin (1967) 257 Cal.App.2d 181, 192, 65 Cal.Rptr. 37; cf. Kissinger v. City of Los Angeles (1958) 161 Cal.App.2d 454, 327 P.2d 10.)
Recreation as a necessity for health has long been recognized. The need for recreational facilities reaches a new dimension of public concern, with increased leisure for all, early retirement for workers, and expansion of both the young and of the senior citizens' groups, with ever-increasing life expectancies and longevity. ‘For Satan finds some mischief still For idle hands to do.’ (Watts, Divine Songs XX (1715).) Cervantes observed, ‘the bow can not always stand bent, nor can human frailty subsist without lawful recreation’ (Don Quixote, c. 21, p. 412). James Thomson was quite modern when he remarked, ‘health is the vital principle of bliss, and exercise, of health’ (The Castle of Indolence, Canto II, Stanza 55).
A requirement that a park or ercreational area be reserved in a subdivision, to expand open space and thus provide more light and air, etc., for health and the general welfare has a parallel in the legally established requirements for yards, and set-back areas commonly found in zoning ordinances. (Clemons v. City of Los Angeles (1950) 36 Cal.2d 95, 222 P.2d 439; Hamer v. Town of Ross (1963) 59 Cal.2d 776, 31 Cal. Rptr. 335, 382 P.2d 375; Christensen v. Thurber (1953) 120 Cal.App.2d 517, 261 P. 2d 312.) There is a substantial difference between the use and control still retained by the landowner in such instances, and mandatory dedication where the public takes the property over for unrestricted public use.
As we view it, the Legislature by enacting section 11546 did not thereby enlarge the substantive law, except tangentially, so far as dedication is concerned, but removed any implication arising from the cited cases that a city was not privileged to request it, in proper instances. If section 11546 were interpreted to mean that dedication might be compelled in all cases for park and recreational purposes, as a condition precedent to approval of a subdivision map, we would conclude that it thereby was in direct conflict with California Constitution, article I, section 14, and hence void. In authorizing the imposition of fees in lieu of requiring dedication, there is an even more difficult question, involving due process of law and equal protection of the laws.
At the outset, we must emphasize that the sale and subdivision of land for the purpose is not a privilege, but a right.7 Likewise, under the existing plethora of laws, in which the subdivider has no practical freedom of action, it cannot longer be said that in presenting a subdivision map for approval, there is an implied consent to mandatory dedication.8 Under duress, the failure to resist is not consent.9 The fact that in the recorded decisions involving mandatory dedications, it does not appear that the property owner has been awarded damages for the taking for public use, is not because the expropriation was justified without compensation under the police power, but because they have not asserted nor proved actual damages. Our California Supreme Court has said, “It is not a trivial thing to take another's land, and for this reason the courts will not lightly declare dedication to public use.” (Manhattan Beach v. Cortelyou (1938) 10 Cal. 2d 653, 662, 76 P.2d 483, 487.)
In constitutional law, it was established that if a state by its laws should authorize private property to be taken for public use without compensation (except to prevent it from falling into the hands of the enemy, or to prevent the spread of a conflagration, or in virtue of some other imminent necessity where the property itself is the cause of the public detriment) it would be depriving the owner of his property without due process of law. (Davidson v. New Orleans (1877) 96 U.S. 97, 107, 24 L.Ed. 616, Bradley, J.)
While this rule has been exemplified many times in nuisance cases, it was given an updated application in Ayres v. City Council of Los Angeles (1949) 34 Cal.2d 31, 207 P.2d 1. Where the construction of the subdivision streets as planned (a condition of the property itself) as found specifically by the trial court, would be a danger to public safety, the subdivider was required to open and widen certain street areas. While internally, the needs of the residents of the subdivision might have been safely satisfied by provision for private ways, the specific modular development plan concentrated ingress and egress to the 13-acre subdivision at junction points with the adjacent main traffic artery, Sepulveda Boulevard, overtaxing its capacity. Under the plan, there was obviously no practicable way to install, maintain and police the additional street areas, if they were to be part private and part public, and it was held reasonable to require him to dedicate the street areas required.10 As to his claim that this took his property without compensation under article I, section 14, of the Constitution, there were two answers: he did not plead and prove such damage, and the Supreme Court noted (idem, p. 41, 207 P.2d p. 7): ‘He has lost nothing by the requirement for dedication and is benefited by being relieved of the burden of improvement.'11 Without such pleading and proof, no such claim of damage can be asserted successfully.12 Following the Ayres case, in some comparable property improvement cases, dedication has been sustained, the property owner not pleading or proving such damages.13 Where improvement of a subdivision has required provisions to be made for drainage, for public safety and health, such drainage has been required as a condition of approval of a subdivision map. When the development required an outlet for its sewage, the subdivider has had to buy into an outfall, to pay an aliquot share of costs for the needed capacity.14
But where a requirement for dedication has been only an attractive device for the public benefit, without the existence of a reasonable nexus, based upon some physical condition created upon or to be created upon the owner's property, the exaction has been rejected. (Mid-Way Cabinet, etc., Mfg. v. County of San Joaquin, supra, 257 Cal.App.2d 181, 65 Cal. Rptr. 37; Scrutton v. County of Sacramento, supra, 275 A.C.A. 464, 79 Cal.Rptr. 782.) In Kelber v. City of Upland, supra, 155 Cal.App.2d 631, 318 P.2d 561, the city attempted to require payment of $1,440 for a Park and School Site Fund, and $1,500 for a subdivision drainage fund, as conditions for approval of a subdivision map. Refund of such fees paid was affirmed. The court stated ‘It seems obvious that this fund raising method is not related to the needs of this particular subdivision or to the matter of making proper conncetions between this subdivision and the adjoining area; that it is not reasonably required by the type and use of the subdivision as related to the character of local and neighborhood planning and traffic conditions; * * *’ (p. 638, 318 P.2d p. 565.)
Due to the expansiveness of the definition of park and recreational facilities, and of the definition of recreation itself, appellant contends that the nexus between the physical condition of the subdivision and the exaction, in terms of health, welfare and safety, does not exist, so as to constitutionally justify mandatory dedication of land nor the payment of fees, as indicated by Business and Professions Code section 11546. The payment of fees is asserted to be a discriminatory exaction, for the benefit of the community in general, rather than for the amelioration of some physical condition inherent in the plan of the subdivision itself, and hence, a denial of due process and of equal protection of the laws. On those grounds, the Supreme Courts of several states, some citing the Ayres case, have held similar statutes void. (Miller v. Beaver Falls (1951) 368 Pa. 189, 191, 82 A.2d 34; Gordon v. Village of Wayne, supra, 370 Mich. 329, 121 N.W.2d 823; Coronado Development Co. v. City of McPherson (1962) 189 Kan. 174, 368 P.2d 51; People ex rel. Exchange Nat. Bank v. Lake Forest (1968) 40 Ill.2d 281, 239 N.E.2d 819; Rosen v. Village of Downers Grove (1960) 19 Ill.2d 448, 167 M.E.2d 230; Daniels v. Point Pleasant (1957) 23 N.J. 357, 362, 129 A.2d 265; contra, Jenad, Inc. v. Village of Scarsdale (1966) 18 N.Y.2d 78, 271 N.Y. S.2d 955, 218 N.E.2d 673.)
Conceding the public interest in and need for park and recreational facilities generally, the appellant contends these needs are not peculiar to any particular subdivision, and cannot be said to arise from any inherent physical condition of a subdivision. It is not at all clear that recreation, in any individual case, depends upon or requires public facilities. A man sitting on a chair with his cross-word puzzle before him may derive the benefit which others seek in streunous ways. The front, side and rear yards of his dwelling, already required by zoning requirements, may will provide him with all the park, green belt, and nature study facilities he has time for or desires. With one or more cars in every garage, there are people continually shuttling back and forth across an city in pursuit of leisure; some to the golf course, some to the picnic ground, some to the tennis court or baseball field, some to the swimming pool, some to the arts and crafts classes, others to the auditorium for lectures and senior citizen get-togethers, some to hiking trails, and some, only to the nearest grass plots, to lay on the lawn or to let the dog take care of his necessities. On another day, the same process continues, with the same citizens perhaps going to other facilities for other pleasurable objectives. Few single areas will provide all.
Hence, it is urged, while increase of population by settlement of a subdivision expands the number of those who will shuttle about and use park and recreational facilities over the community as a whole, none of their requirements are due to any inherent danger, defect, or demand, over and above that engendered by a like number of people found in similar surroundings in any part of the city. If by way of the dedicatory or fee requirement, the subdivider is compelled to pay an additional share above the contribution already made as a general taxpayer for the general good of the community as a whole, there is a want of equal protection of the laws and of due process.
By paraphrase of the Ayres rationale, without considering the limited facts which evoked it, it is contended that since the subdivision results in the entrance of more people into the community, the burdens they place upon the community are chargeable to the subdivider, and he should be compelled to contribute land or funds accordingly, as a condition of approval of his subdivision map. Understandably, in this era of population explosion, increased demands for municipal facilities, inflation, tax rate limitations, and public disinclination to vote bond issues, this is an attractive thesis. It has proceeded so far as to engender learned speculation whether or not such expanded costs should not be the subject of legal cost accounting studies. If on the one hand, the subdivider sees the hungry public wolf, clothing itself in the Ayres lamb's skin, the public may consider itself in the role of the impoverished householder who tells the guest, come right over, but bring your own lunch.
But we cannot subscribe to the premise that the police power expands, and property rights guaranteed by the Constitutions contract, in proportion to the general fiscal exigencies which make expropriation attractive.
There is a frequent failure to distinguish the expansivwer to regulate persons and property under the felt necessities of the times (Consolidated Rock Products Co. v. City of Los Angeles (1962) 57 Cal.2d 515, 20 Cal.Rptr. 638, 370 P.2d 342), and the power to appropriate property for public use. Therein a public purpose must exist to authorize the appropriation to public use (Roussey v. City of Burlingame (1950) 100 Cal.App.2d 321, 324, 223 P.2d 517), but does not discharge the constitutional obligation to pay for the taking. Nor does the fact that the necessity arises because of the general growth of the community displace the constitutional requirement. The maxim ‘Salus populi est suprema lex’ designedly was curtailed by California Constitution, article I, section 14. (Cf. People v. Pace (1925) 73 Cal.App. 548, 558, 562, 238 P. 1089.)
‘Community burden’ is not the justification for mandatory dedication. If it were, there would be no limit such as demands for sites of fire stations, police stations, schools, health centers; and if excess population creates the burden, why not for planned parenthood centers and abortion clinics, as well as day nurseris?
Because the plat of a subdivision is required to be approved and therefore affords a point of control with reference to those immediate and direct cosis which the physical development of the subdivision makes necessary for public health, safety and welfare, it does not follow that communities may use this point of control to solve all of the community problems they foresee, based on the increased population. (Kelber v. City of Upland, supra, 155 Cal.App.2d 631, 318 P.2d 561; Pioneer trust & S. Bank v. Village of Mount Prospect (1961) 22 Ill.2d 375, 176 N.E.2d 799.)
Relative to the applicable constitutional criteria, we are cognizant at the outset that the Walnut Creek park and recreation plan is a coordinated community plan. In declaring the dedicatory requirements as to land and in lieu fees, the Walunt Creek ordinance and resolutions have been drafted upon the premise that both neighborhood and general community needs can be imposed upon the subdivider; with a reasonable relationship betwe en the increase of population by the occupation of the subdivision and such needs. Since we are compelled to reject that broad premise, we shall not attempt to sort the ordinance and resolution provisions to identify piecemeal all those which transgress and those which conceivably conform to the established norms.
This precedent ‘reasonable relationship,’ was not between the condition imposed, and the general public benefit. On that basis, any appropriation of land for public use without compensation could be justified. ‘Standing alone, the landowner's economic benefit supplies inadequate underpinning for the exaction. * * * The landowner should be free to reject the paternalism which forces him into an exaction conceived for his personal benefit.’ (Scrutton v. County of Sacramento, supra, 275 A.C.A. at p. 475, 79 Cal.Rptr. at p. 880.) Such benefit or lack of it, however, bears on the issue of his constitutional right to damages: and when there is not, it is still a factor in determining the reasonableness of the demands made upon him. As one wag would have it, ‘Sometimes expropriation of a little is legal, if one does not take too much.’
Upon the authorities considered above, we might hold that Business and Professions Code section 11546, implemented by the Walnut Creek legislation, is unconstitutional and void, upon such assigned grounds. If one were dealing with a small proposes subdivision, to arise on the outskirts of an established city, it might be very difficult to establish the required elements to constituional validity. But in California, we build subdivisions bigger, if not better.
We are cognizant that a single subdivision (or contemporaneous aggregation of contiguous subdivisions) may spring up with several hundreds or even thousands of new dwellings. One need only see the Dublin, Los Angeles, or Orange County developments, to realize that a subdivision complex may be so extensive that it itself is a new community. the need for parks and recreational areas comes into being with the subdivision, both for neighborgood and general community facilities. If they are not provided for, before space is preempted for other purposes, they may never be provided. If by way of hindsight, they were sought after settlement, assuming land was available or was condemned, the entire subdivision might be made a district for the acquisition, and the costs assessed back against the property.
It is our duty, if possible, to construe Business and Professions Code section 11546 in such a manner as to maintain its constitutionality. It is presumed that the Legislature intended to adopt a constitutional statute. A key to the validity of the section under constitutional principles rests in the interpretation to be given subdivision (e) of that section: ‘The amount and location of land to be dedicated or the fees to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision.’ Whatever that may be determined to be, it does not displace the requirement stated in the Ayres case that the necessity for the park and recreational facilities must be inherent in physical conditions created by the development itself. Without this nexus, any legal requirement to set aside such area, either by private reservation or dedication, would be arbitrary, discriminatory and confiscatory.
The concentration of people in the subdivision may be said to be a condition directly attributable to its planned housing facilities. Massive concentration of people in limited space creates special problems of police, fire and health protection; and environmentalists point to such conditions of crowding in relation to antisocial human behavior. Zoning laws have taken such factors into account. Certainly the problems arising in fetid blocks of tenements in the New York east side or Harlem are not those of Walnut Creek or most of the California cities appearing through amici curiae in this case. But the necessity for park and recreational facilities may exist in both locales, though the urgency for recreational space and social consequences may differ greatly. We have noticed, however, that many subdivisions in themselves have dimensions greater than existing cities, and that pro tanto the urgency mounts for provision of open space for the subdivision community.
This is the traditional situation in which we must defer to the legislative determination that in every new subdivision in Walnut Creek of the specified size, thd inherent buildup of population therein requires that provision be made accordingly for park and recreational space directly for the benefit of the subdivision. By Resolution 1883, the space directly required for the neighborhood service area is 1.3 acres per 1000 population. By definition it is this area that directly serves the subdivision. The additional 1.2 acres designated for general community facilities may not be chargeable to the subdivider, under the facts, and the law we discuss.
To summarize this point: in the absence of specific facts, the determination of the City of Walnut Creek that the required nexus exists, between the buildup of the subdivision, and the requirements stated for neighborhood centers, under the doctrine of the Ayres case, is prima facie valid.15 When and if the subdivision is of such size, extent or by location in other locales that it is in essence the community itself, we cannot say that action taken pursuant to Business and Professions Code section 11546 to require dedication would necessarily be invalid. The matter is factual, applying the test of the Ayres case. In Walnut Creek, under the classification and criteria established, the individual subdivider cannot be compelled to dedicate or to pay in lieu fees for the community center, or general park and recreational facility purposes, as a condition precedent to approval of the tendered subdivision map.
If the size and location of the subdivision are such that existing public park and recreational facilities are adequate to serve the needs of the new subdivision population, considering the public health, safety and welfare, there is no basis for a dedicatory exaction, in land or by way of an in lieu fee as a taxpayer. Of course, he and future owners will pay their share of bonded indebtedness for park and recreation purposes.
The taxpayer who has paid with the rest on his ratable basis cannot validly be required to make an additional contribution because he and his successors in interest are about to claim some of the benefits of the community as a whole for which he and those who come in his stead have paid, or will pay in the future. (Cf. City of Los Angeles v. Offner (1961) 55 Cal.2d 103, 112, 10 Cal.Rptr. 470, 358 P.2d 926; consult City and County of Denver v. Denver Buick, Inc. (1960) 141 Colo. 121, 347 P.2d 919; 73 Yale L.J. 1119, 1134.) It is on this ground that the imposition of fees, in lieu of dedication of land for expenditure outside the subdivision has come under heavy legal attack.
Our discussion has intimated, and we now make clear, that unlike streets, the needs of the residents of a subdivision for park and recreational areas, green belts and open spaces frequently have been, and still may be, completely satisfied by the lot areas, private allocations or reservations made by a subdivider for the benefit of the inhabitants of the subdivision.16 Where this is so, there can be no compulsory dedication or imposition of fees, since the legitimate demands under the police power have been met, under the constitutional limits properly applied in the cases which have been cited. It is not discretionary as provided in Ordinance section 10–1.516(b) 3. It may not be withheld at the discretion of the Park and Recreation Commission, Planning Commission nor the City Council; nor can the council's determination be made final.17 It is subject to judicial review. (Hamer v. Town of Ross (1963) 59 Cal.2d 776, 781, 31 Cal.Rptr. 335, 382 P.2d 375.) The apparent theory, that allowance for space equivalent credit is in the nature of a variance, permitting broad administrative discretion in granting it, cannot be sustained.
The Walnut Creek Resolution No. 2225, section D, provides that such credit will not be given, unless private contracts of and with all of the inhabitants of the subdivision obligate them to maintain the private park and recreational facilities. No standards for maintenance or development are specified, either public or private. We reserve opinion as to whether such a condition is valid; but we are certain that the absence of standards renders it doubtful. (In re Petersen (1958) 51 Cal.2d 177, 184, 331 P.2d 24; Schaezlein v. Cabaniss (1902) 135 Cal. 466, 67 P. 755.)
A subdivider may not be forced to ‘buy into’ an existing park and recreation facility, fortuitously located as to serve the subdivision. (Cf. City of Madera v. Black (1919) 181 Cal. 306, 184 P. 397; City of Los Angeles v. Offner, supra, 55 Cal.2d 103, 112, 10 Cal.Rptr. 470, 358 P.2d 926.) Thus, Rusolution No. 2225, subdivision 1, subsection C, parageaph lb, is invalid as to the imposition of the in lieu fee.
Should a subdivision embrace an area designated as a park or recreational facility on the Walnut Creek Master Park and Recreation Plan, the subdivider cannot solely because of that fact be forced to dedicate such land as a condition of subdivision map approval. Otherwise, expropriation could be effected for any public purpose in any instance by ruler and pen. (Kissinger v. City of Los Angeles, supra, 161 Cal.App.2d 454, 327 P.2d 10; Morris County Land Imp. Co. v. Parsippany-Troy Hills Tp. (1963) 40 N.J. 539, 193 A.2d 232; Coronado Dev. Co. v. City of McPherson, supra, 189 Kan. 174, 368 P.2d 51.)
The statute and ordinance are not invalid because they do not apply to those who subdivided previously. Regulation must begin at some point. (Joslin Mfg. Co. v. Providence (1923) 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed. 1167.)
Appellant further attacks the statute and the ordinance upon the ground that subdivision (e) of the Business and Professions Code section 11546 sets up an indefinite and unascertainable standard; in that the dedicatory requirement is predicated upon ‘a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision’ of the property dedicated or acquired with the in lieu fee. (Italics added.)
The differentiation between the word ‘park’ and the phrase ‘recreational facilities.’ (though over the years any distinction has become blurred) rests in the concept of a park as an open space, ornamented with flora and perhaps inhabited by fauna, intended for the recreation and enjoyment of the public (Archer v. Salinas City (1892) 93 Cal. 43, 50, 28 P. 839; Suires v. City of Los Angeles (1906) 150 Cal. 64, 87 P. 1026);18 while recreational facilities have come to include those areas often found in parks, put to diverse uses such as playgrounds, playing fields or courts, beaches, camps and many others.19 ‘Recreation,’ we are told, ‘means any activity, voluntarily engaged in, which contributes to the physical, mental, or moral development of the individual or group participating therein. * * *'20
Which ‘use’ of park or recreational facilities will the future unidentified resident make? The young mother who wants a bit of park near at hand wherein to wheel her pram is not served by a swimming pool. The resident who would like assess to a golf course is not served by the sandbox in the schoolyard in the next block.
If section 11546 requires a fantasy of clairvoyant prediction as to how many of the residents would swim, or play volleyball, walk the dog, or just lay on the grass, there is an invalidating indefiniteness. It is obvious that as people move in and out, and as the age group changes, recreational needs and habits likewise vary, and will continue to change throughout the life of the subdivision. In developing facilities, the Walnut Creek ordinance recognizes that there must be revaluation of uses from time to time. But we must make a reasonable construction of this requirement.
The paramount purpose of the Subdivision Map Act evidenced in section 11546 is to reserve land which may be devoted to such changing uses, while it is available. As stated in Walnut Creek Resolution 1883, adopting the Long Range Park and Recreation Plan, ‘Time is of the essence in providing for the future Park and Recreation needs of the Walnut Creek area. Land areas must be spoken for at an early date before they are preemped by other uses.’ Thus we hold that the use by the future inhabitants can be estimated validly in terms of required acreage as it has been by Walnut Creek in adoption of the desired ratio of 2.5 acres per thousand population, as a legislative determination of the use to be made of both the neighborhood centers and community centers. This determination is not shown in this proceeding to be unreasonable though concededly arguable.
Loosely construed, any of the public grounds maintained by the city anywhere for the use of the public might be said to ‘serve the subdivision.’ However, we conclude that that phrase used in subdivision (c) of Business and Professions Code section 11546 means that the inhabitants of the subdivision must be directly benefited. This was the legislative intent, as indicated in the model legislation appended to the Report, Assembly Interim Committee on Municipal and County Government (Vol. 6, No. 21, 1963–1965, p. 43), initiating the enactment of Business and Professions Code section 11546. In respect to such direct benefits, the neighborhood center as difinded in the Walnut Creek legislation and plans would comply prima facie. But in other respects, the provisions for the imposition and disposition of the fee in lieu of dedication are not valid, as is indicated.21
The purpose of the Subdivision Map Act is not to levy taxes nor special assessments, but to regulate the subdivision of land. The term ‘recreational facilites' used in apposition to ‘park’ in section 11546, subdivisions (c), (d) and (f), relates to land, such as baseball diamonds and football fields. It does not mean improvements such as bleachers, nor equipment such as bats, balls, slides, swings, nor yet rainbirds to irrigate the school yard turf. None of these are ever ‘dedicated’ to public use in the ordinary and accepted sense of the term. Once this is understood, many of the appellant's objections are untenable.
If the subdivision because of size, topography, or other relevant reasonable factors, does not permit the establishment of afacility in the subdivision, necessity being established under the criteria of Ayres, a fee may logically and legally be exacted, to purchase the equivalent lands required outside the subdivision.22 But such land acquired by such fees, independently or pooled with other similar exactions, must be for the direct benefit of the regulated subdivision. (Cf. Aunt Hack Ridge Estates, Inc. v. Planning Comm. (1967) 27 Conn.Sup. 74, 230 A.2d 45, 47; People ex rel. Exchange Nat. Bank v. Lake Forest, supra, 40 Ill.2d 281, 239 N.E.2d 819, 822; see also Miller v. Beaver Falls, supra, 368 Pa. 189, 82 A.2d 34; cf. Mayor & Council of Rockville v. Brookeville Turn. Const. Co. (1967) 246 Md. 117, 228 A.2d 263, 271–273; Coronado Development Co. v. City of McPherson, supra, 189 Kan. 174, 368 P.2d 51.) The fees as now imposed are subject to appellant's objection that they are forbidden special use taxes imposed solely upon residents of the subdivision for facilities for the general public, not necessarily for the direct benefit of the subdivision; a conclusion also reached in the case of Kelber v. City of Upland, supra, 155 Cal.App.2d 631, 318 P.2d 561, in respect to fees imposed by that city.
In Gordon v. Village of Wayne, supra, 370 Mich. 329, 121 N.W.2d 823, the Michigan Supreme Court invalidated an in lieu dedication fee requirement, and held the subdivider was entitled to recover the fee paid.
Walnut Creek does not support the in lieu dedication fee upon the theory that it is a special assessment. As contended by appellant, subdivision residents are not represented when the in lieu fee is determined; but the subdivider is. The fixing of the constructive value of land which would be dedicated if the subdivider had it, or would have been appropriate if there had been more than fifty parcels involved, is subject to a hearing, thus meeting a constitutional requirement. In the negotiations on this question, the ordinance provides that the subdivider may present the appraisement of a qualified appraiser appoved by the City, whose opinion may be acted upon.23 He may not be so restricted, whatever weight may be ascribed to the evidence he presents.
Appellant properly complains that no standards are set out to determine ‘when dedication is impossible or undesirable,’ thereby allowing the authorities to impose a fee in all cases, for general purposes, under the text of the Walnut Creek ordinance. Our definition of the purposes for which the fee can be used answers the principal objections. In this proceeding, we cannot envision the sweep of administrative discretion which may be involved in any specific controversy. Thought the authorities must determine the discretionary matters in each case (Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 362–363, 203 P.2d 37), the subdivider has a right to be heard administratively, and to review the determinations in the courts. (Code Civ.Proc. § 1094.5.)24
‘The relationship between the condition exacted by the public authority and the use proposed by the landowner presents a factual inquiry for the trial court.’ (Scrutton v. County of Secramento, supra, 275 A.C.A. at p. 474, 79 Cal.Rptr. at p. 879.)
Testimony may be received as to the reasonableness of the requirement of provision for such park or recreational space, under the rule of the Ayres case, applying the criteria bearing on the public health, safety and welfare of the subdivision residents. (Hamer v. Town of Ross (1963) 59 Cal.2d 776, 781, 31 Cal.Rptr. 335, 382 P.2d 375.)
Even in New York, where the dedication and fee requirements were sustained in the Jenad case, supra, a requirement for dedication or payment in fees was stricken down. There was an evidentiary showing that where a subdivider had paid $208,000 for a beach front tract, the required dedication of the shore frontage as a park would decrease the value of the tract by $92,000. The requirement was held confiscatory and void. (East Neck Estates, Ltd. v. Luchsinger (1969) 61 Misc.2d 619, 305 N.Y.S.2d 922.)
In the first instance, this and other factual questions are to be decided administratively under the review now provided for in Business and Professions Code section 11552. The Walnut Creek procedures must be revised and integrated accordingly.
In the interest of leaving such matters flexible, in many particulars there is stated no standard nor rule, other than general phrases. But administrative power begins and ends with the standards stated. If their interpretation, administration or enforcement are unguided, they are invalid; and cannot be assisted by ad hoc determinations. (In re Petersen, supra, 51 Cal.2d 177, 184, 331 P.2d 24; cf. State Board v. Thrift-D-Lux Cleaners (1953) 40 Cal.2d 436, 440, 441, 448, 254 P.2d 29.) Any redraft of the ordinance will no doudt take cognizance of this principle. Technically, the standards enforced must be established by ordinance, and not by resolution.25
The need for park and recreational space had been determined on a per capita acreage basis by the City of Walnut Creek. It this criteria is valid, then it applies equally to the needs of people in all new housing, not only to those in new subdivisions. A general tax on all housing units, such as that regerred to in Santa Clara County Contractors, etc., Ass'n v. City of Santa Clara, supra, 232 Cal.App.2d 564, 577, 43 Cal.Rptr. 86 (Modesto ordinance) may be valid, as in an excise or gross receipts tax on the business of subdivision. (City of Los Angeles v. Rancho Homes, Inc. (1953) 40 Cal.2d 764, 256 P.2d 305.) But as a tax, such a charge limited to the housing in subdivisions is discriminatory and invalid. (City of Los Angeles v. Lankershim (1911) 160 Cal. 800, 118 P. 215; Matter of Application of Richardson (1915) 170 Cal. 68, 148 P. 213; cf. Justesen's Food Stores, Inc. v. City of Tulare (1938) 12 Cal.2d 324, 329, 84 P.2d 140; In re Fassett (1937) 21 Cal.App.2d 557, 69 P.2d 865; Gowens v. City of Bakersfield (1960) 179 Cal.App.2d 282, 285, 3 Cal.Rptr. 746.)
Appellant contends there is no valid relationship between the costs of particular park or facilities and the use of the park or facilities to be provided the residents of the subdivision. This cannot be determined empirically from the text of the statute and the ordinance before us. The argument that two subdividers each with the same number of housing units may pay widely different amounts of in lieu fee does not invalidate the requirement. Such a difference intrinsically represents a different land value per unit in the two subdivisions, not a discrimination.
Subdivision (g) of Business and Professions Code section 11546 provides, ‘Only the payment of fees may be required in subdivisions containing fifty (50) parcels or less.’ We are not directed to any definition of the word ‘parcel.’ The parcels on a subdivision map may consist of 50 x 125 foot lots for single family occupation, in which case it might be assumed that the space to be reserbed under a dedicatory formula like that of Walnut Creek would only minimally add to the open lot spaces required by the zoning ordinance on each lot. On the other hand, a subdivision might embrace large lots, to be occupied by highrise apartment or residence hotel buildings. It would be anomalous to hold that in such cases the concentrated population would go parkless, or that the concern for the public health, safety and welfare for them would be less than in a horizontal subdivision. (Cf. Various parcel areas referred to. Bus. & Prof.Code §§ 11535, 11000.) This restriction must be held invalid for indefiniteness. The municipality is free to consider the physical factors in each case, and to act in accordance with the Ayres case when appropriate.
Appellant contends that Business and Professions Code section 11546 in invalid, in that its provisions do not apply to industrial subdivision. The record does not disclose that there are any in the City of Walnut Creek. It is to be presumed that this is a valid classification, in common knowledge that in industrial developments, the number of residents is negligible. The entire industrial city of Vernon, for instance, in 1960 had mustered only 269 inhabitants. The record does not permit us to speculate upon the requirements applicable to, or not applicable to, commercial subdivisions, nor are the same defined. Hence, we cannot here determine whether their inclusion or exclusion is discriminatory as to the plaintiff.
Business and Professions Code section 11546, subdivision (f), provides that where mandatory dedication is required, ‘The city or county must specify when development of the park or recreational facilities will begin.’ This is reinforced by the Business and Professions Code section 11611 which provides for formal acceptance or rejection of any tendered dedication, and does not permit acceptance to follow at an indefinite future time.
The city or county cannot specify when development will begin and cannot begin it on the ground without acceptance of the dedication. Hence, we must hold that the public agency by requiring a mandatory dedication under Business and Professions Code section 11546 is deemed to have accepted the dedication, by the final approval of the map.
Obviously, the legislative intent is that the subdivision will receive the direct benefit upon which the exaction was postulated. An intent is discerned to avoid municipal mortmain in such matters. Consequently, such development must begin within a reasonable time. That is a factual matter, considered in each specific instance in which it is an issue. Resolution 2225 provides that improvements shall be made as the subdivision area develops, and parks and recreational facilities become necessary. They are not necessary until people occupy the subdivision.
Fear is expressed that in the attempt to secure the city beautiful, these subdivision map requirements added to zoning requirements and construction requirements have raised costs to the point that large segments of the population are priced out of the market, at a time when housing is acutely needed; that such high-priced housing stratifies the population, and more and more forces persions in the lower income bracket toward government housing, exempt from many tax burdens; and thereby increases the tax burden on remaining property for housing subsidies and the like. If such matters tangentially are concerned here, they predominantly are of legislative concern. A limit has been set judicially, in that planning and zoning and subdivision requirements are not permitted to purposely exclude certain income classes from land acquisition or improvement. (Note, 21 Stanford L.Rev. 780.)
We have endeavored to follow the rule that a statute is to be given that construction which will render it constitutional. As so construed and limited herein, Business and Professions Code section 11546 is not on its face unconstitutional, except as to paragraph (g) thereof; and except to that extent, the judgment in respect to the same is affirmed. The construction of that statute and the Walnut Creek legislation in this opinion constitutes the declaratory relief for which the plaintiff prayed.
In respect to the provisions of section 10–1.516 of the Walnut Creek Municipal Code, and the stipulated practice, pertaining to the imposition, use and disposition of fees in lieu of dedication, the same are unconstitutional and void as indicated herein; and the stipulated use and disposition of the in lieu fees for other than land acquisition is unauthorized and void; and the judgment in relation thereto is reversed; with directions to the trial court to retain jurisdiction for the purpose of affording appellant any proper injunctive relief against enforcement of the same. Each party will bear its own costs.
1. ‘§ 11546. Ordinance requiring dedication of land and/or payment of fees as condition to approval of map.‘The governing body of a city or county may by orkinance require the dedication of land, the payment of fees in lieu thereof, or a combination of both, for park or recreational purposes as a condition to the approval of a final subdivision map, provided that:‘(a) The ordinance has been in effect for a period of 30 days prior to the filing of the tentative map of the subdivision.‘(b) The ordinance includes definite standards for determining the proportion of a subdivision to be dedicated and the amount of any fee to be paid in lieu thereof.‘(c) The land, fees, or combination thereof are to be used only for the purpose of providing park or recreational facilities to serve the subdivision.‘(d) The legislative body has adopted a general plan containing a recreational element, and the park and recreation facilities are in accordance with definite principles and standards contained therein.‘(e) The amount and location of land to be dedicated or the fees to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision.‘(f) The city or county must specify when development of the park or recreational facilities will begin.‘(g) Only the payment of fees may be required in subdivisions containing fifty (50) parcels or less.‘The provisions of this section do not apply to industrial subdivisions. [Added by Stats.1965 ch. 1809 § 2.]’
2. Section 10–1.516(b) 1, of the Walnut Creek Municipal Code demands such free dedication of land within a subdivision. over 50 parcels in size, sufficient for a neighborhood park, adequate in size and topography to serve the residents of the subdivision area, under a formula (established by Resolution No. 2225) based upon assumed dwelling types and population density, ranging from one acre per 100 dwelling units to one acre per 200 dwelling units.If a subdivision has less than 50 units, or otherwise if the planning authorities direct under Resolution No. 2225, the subdivider is required to pay a fee in lieu of dedication (or in addition to it) based upon the ‘fair market value’ of the land that otherwise would have been dedicated.By Resolution 1970, the city approved a map referred to as the ‘Master Park and Recreation Facilities Land Use Plan.’Resolution 1883 adopted ‘Long Range Park and Recreation Plan Principles and Standards,’ and establishes a minimum general community space standard of 2.5 acres of area for active and passive recreation parks and facilities. The first basic element is the neighborhood center for groups of all ages, within 1/4 to 3/4 mile of evey home.Resolution 2225 is ‘A Resolution Establishing a Formula for Park Land Dedication or for Payment of Fees in Lieu Thereof Pursuant to Section 10–1.156 of the Walnut Creek Municipal Code.’
3. Kelber v. City of Upland (1957) 155 Cal. App.2d 631, 318 P.2d 561; Santa Clara County Cantractors, etc., Ass'n v. City of Santa Clara (1965) 232 Cal.App.2d 564, 572, 43 Cal.Rptr. 86; Newport Building Corp. v. City of Santa Ana (1962) 210 Cal.App.2d 771, 26 Cal.Rptr. 797. As to chartered cities, consult Mefford v. City of Tulare (1951) 102 Cal.App.2d 919, 924, 228 P.2d 847.
4. The police power cannot be used to destroy constitutional rights as to the inviolateness of private property. (House v. Los Angeles County Flood Control Dist. (1944) 25 Cal.2d 384, 388–389, 153 P.2d 950.)
5. Certain stipulations were made, which will be considered in discussion of their context, infra.
6. There is a contradiction in terms, when there is a statutory or ordinance requirement of dedication of land for public use. Dedication is the voluntary devotion of land or of an interest therein by the private owner, accepted by the public. For parks, compare City of Los Angeles v. Kysor (1899) 125 Cal. 463, 465, 58 P. 90; People v. Rio Nido Co., Inc. (1938) 29 Cal.App.2d 486, 491, 85 P.2d 461. If ‘required,’ there is not dedication at all, but an outright appropriation and expropriation for public use; procured under economic duress. (West Park Ave., Inc. v. Ocean Tp., 48 N.J. 122, 224 A.2d 1, 4; Gordon v. Village of Wayne (1963) 370 Mich. 329, 121 N.W.2d 823; Ridgemont Development Co. v. City of East Detroit (1960) 358 Mich. 387, 100 N.W. 2d 301.)
7. (Hart v. City of Beverly Hills (1938) 11 Cal.2d 343, 345, 79 P.2d 1080; Ex parte Quarg (1906) 149 Cal. 79, 84 P. 766; People v. Davenport (1937) 21 Cal. App.2d 292, 69 P.2d 862; Cal.Const., art. I, §§ 1, 21, 22; cf. Scrutton v. County of Sacramento (1969) 275 A.C.A. 464, 473, 79 Cal.Rptr. 872; dicta contra, City of Buena Park v. Boyar (1960) 186 Cal.App.2d 61, 67, 8 Cal.Rptr. 674.)
8. Any rationalization that by presenting a subdivision map for approval, the subdivider voluntarily offers to make any ‘dedications‘ required by the authorities is a fiction which cannot be permitted to subvert the Constitution. (Cf. Bus. & Prof.Code § 11590.)Though the map act provisions do not apply to subdivision of land in five parcels or less, cities and counties are authorized to, and commonly do, apply similar restrictions to such minor subdivisions, and prohibit metes and bounds conveyances. (Cf. Bus. & Prof.Code § 11540.1; City of Tiburon v. Northwestern Pac. R.R. Co., supra, 4 Cal.App.3d at p. 182, 84 Cal.Rptr. 469.)
9. West Park Ave., Inc. v. Ocean Tp., supra, 48 N.J. 122, 224 A.2d 1.
10. The opinion of the court is to be understood in the light of the facts and issues before it. (McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38, 4 Cal.Rptr. 176, 351 P.2d 344.)We have referred also to the briefs in the Ayres case (Vol. 7380, Records of the Supreme Court (San Francisco Law Library).) The briefs on file incorporate summaries of the testimony, and the findings of fact by Honorable Turney Fox, trial judge.
11. The plan required less street area than conventional quadrilateral designs. Since upon acceptance, the duty to maintain a dedicated street rests upon the public (Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 239, 267 P.2d 10) and the tax on the reversionary interest is nominal if it is taxed at all, the subdivider usually is willing to dedicate the required street areas.
12. Bringle v. Board of Supervisors (1960) 54 Cal.2d 86, 4 Cal.Rptr. 493, 351 P.2d 765.Under the California statutes, a subdivider contesting an exaction apparently must run the hurdles imposed by Bringle, supra, the time limits of Business and Professions Code sections 11552, 11525.1 and the Claims Statute, Government Code sections 905, 910, 911.2, 935 et seq., if money recovery is sought.Fees unlawfully imposed may be recovered. (Kelber v. City of Upland (1957) 155 Cal.App.2d 631, 318 P.2d 561; Gordon v. Village of Wayne (1963) 370 Mich. 329, 121 N.W.2d 823.)
13. Where a proposed warehouse development with five acres of floor space had a potential of pouring substantial truck traffic at the point into an already overburdened traffic artery, which only street widening at that point could amelioate, it was held that dedication of one-fifth of an acre of a 50-acre parcel to widen the street could be imposed as a condition to issuance of a building permit. (Southern Pac. Co. v. City of Los Angeles (1966) 242 Cal.App.2d 38, 49, 51, 51 Cal.Rptr. 197.) As in Bringle v. Board of Supervisors, supra, 54 Cal.2d 86, 4 Cal.Rptr. 493, 351 P.2d 765, no proof was offered as to the company's claimed damage, under California Constitution, article I, section 14, occasioned by the requirement. The appellate court stated (idem, 49, 51 Cal.Rptr. 203) that as a general rule, ‘increased accessibility of the property increases the value of the property.’ (No proof was offered to the contrary.)In Sommers v. City of Los Angeles (1967) 254 Cal.App.2d 605, 62 Cal.Rptr. 523, one who by enlargement of his service station operation would produce a traffic hazard in connection with ingress and egress noto a secondary highway with deficient capacity was compelled to dedicate property for street widening. It was specifically found this ‘would not cause any undue hardship or financial loss to [appellants].’ (P. 620, 62 Cal.Rptr. p. 529.)
14. Subdivision development itself requires provision be made for sewer connections, and the subdivider may be compelled to ‘buy in’ to an existing outfall, where there is a general plan for providing same by contract based on a cubic foot per hour flow basis: Longridge Estates v. City of Los Angeles (1960) 183 Cal.App.2d 533, 539, 6 Cal.Rptr. 900. Refer to People v. City of Los Angeles (1948) 83 Cal.App. 2d 627, 189 P.2d 489; City of Vernon v. City of Los Angeles (1955) 45 Cal.2d 710, 290 P.2d 841. The subdivider has been compelled to pay the cost of a drainage ditch, to drain the subdivision: City of Buena Park v. Boyar (1960) 186 Cal. App.2d 61, 8 Cal.Rptr. 674 (wherein no question of legality of the imposition ‘was properly before the court’).We do not yield to the curious proposition, advanced in People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal.App. 2d 378, 63 Cal.Rptr. 138, that if an increase of traffic along a street requires street widening, mandatory dedication or expropriation by the public authorities is noncompensable, ‘because it results from a risk shared by all property owners.’ (P. 384, 63 Cal.Rptr. p. 142.) That expropriation of private property for public use without payment is a risk assumed under the ‘common calamity rule’ we believe is negatived by adequate authority: Rose v. State of California (1942) 19 Cal.2d 713, 123 P.2d 505; House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384, 153 P.2d 950; Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 31 Cal.Rptr. 316, 382 P.2d 356; Churchill v. Kellstrom (1943) 58 Cal.App.2d 84, 89, 136 P.2d 602; Peckwith v. Lavezzola (1942) 50 Cal.App.2d 211, 218, 122 P.2d 678. A subdivider is not compelled to dedicate his private property as a ‘risk’ imposed upon all subdividers by the Subdivision Map Act.
15. The determination must be honored since the subject is fairly debatable. (Miller v. Board of Public Works (1925) 195 Cal. 477, 490, 234 P. 381.)
16. It is obvious that for single family residences on one acre lots, the area requirements for recreation etc. are met on the lot itself; and it may well adapt itself to a playground for the children; while the garden presents a recreational challenge to the parents, sufficient for health and welfare. Lots of lesser area have such capabilities, pro tanto.
17. The authorities have no reasonable basis upon which to impose requirements, until after it is determined that some ingerent condition of the subdivision requires more. To be credited with compliance is a right and not a privilege.
18. Relative to park purposes and uses, consult: County of Los Angeles v. Dodge (1921) 51 Cal.App. 492, 505, 197 P. 403; Harter v. San Jose (1904) 141 Cal. 659, 665, 75 P. 344, hotel in park as recreational facility; Grlffith v. City of Los Angeles (1947) 78 Cal.App.2d 796, 178 P.2d 793, emergency housing in a park; consult 10 McQuillin, Mun. Corporations (3rd rev. ed. 1966) p. 177 et seq., § 28.52b.
19. Education Code section 16652, subdivision (e). The Walnut Creek Park plan includes also hiking trails; and off-street parking. Resolution No. 1883 lists fourteen types of recreational needs.
20. Education Code section 16652, subdivision (c), which proceeds to list numerous diverse activities as recreation.
21. It was stipulated that ‘By virtue of authorizations contained [in its ordinance and resolutions], the City of Walnut Creek may require that a fee be paid in lieu of dedication for improvements to neighborhood parks and to community parks where a neighborhood park cannot be adequately provided for and/or is not feasible. * * * The City may also require and use the fee paid in lieu of dedication for improvement of elementary school grounds such as automatic sprinkler system, turfing, tiny tot areas, picnic and nature areas and beautification, which have been or will be accomplished by the City under the park land dedication ordinance. * * * The improvements which may be made by the City to school grounds are not restricted solely to use thereof by residents of any particular subdivision or neighborhood, and such improvements may be and are used by the school district owning such school grounds. * * *‘Where the subdivision is located within a three-quarter mile radius of elementary school school grounds or an existing neighborhood park or commanity park, the fee required of the subdivider is used by the City to make needed improvements to such school grounds or parks without purchasing any land for additional parks or recreational facilities.’
22. The Walnut Creek park development plan commendably calls for planned joint use of areas for recreation with other public agencies, such as the school district. Various statutes authorize such cooperation. Without having before us at this time evidence of any official action involving such cooperation, we hold upon the question whether the in lieu fees may be expended jointly with other public agencies, for jointly held land held in trust for activities serving the subdivision in question. Consult: Spires v. City of Los Angeles, supra, 150 Cal. 64, 70, 87 P. 1026; Mahoney v. Board of Education (1909) 12 Cal.App. 293, 107 P. 584.
23. The stated ‘criteria for requiring a fee: 1) When dedication is impossible, impractical, or undesirable, payment of a fee in lieu of park land dedication shall be required. The fee to be used to purchase land, buy equipment, or construct improvements in local park and recreation areas in accordance with Section 10–1.516.’ (Italics added.) In determining the in lieu fee equivalent, when applicable, such equivalent is to be based upon market value as of the date of filing of the subdivision map. (Resolution No. 2225.)‘If the subdivider objects to the fair market value datermination, he may, at his own expense, obtain, he may, at the property by a qualiffied real estate appraiser approved by the City, which appraisal may be accepted by the City Council if found reasonable;’ (Italics added).
24. Although the 1965 amendment to Business and Professions Code section 11525 eliminated from it the clause, ‘but, in all matters concerning such design and improvement, any decision by a governing body is subject to review as to its reasonableness by the superior court in and for the county in which such land is situated,’ the powers and duties of that court were not changed thereby; though made subject to the special 180-day limitation in new section 11525.1. (Section 11525.2 as amended in 1968 refers to a special proceeding in the superior court under section 11525 without noting the 1965 amendment to that section.)
25. A resolution is not an ordinance. (5 McQuillin, Mun. Corp. (3d ed.) p. 42 et seq., §§ 15.02–15.04.) The establishment of the specified formulae for dedication of land, the conditions requiring park and recreational areas, green belts and open spaces, and payment of fees in lieu thereof, is required to be by ordinance. These are an exercise of the police power, not matters of internal administration, and are subject to referendum. (Mefford v. City of Tulare, supra, 102 Cal.App.2d 919, 925–926, 228 P.2d 847.) Appellant has not urged this point but cognizance should be taken of it.
DAVID,* Associate Justice Pro Tem. FN* Retired Superior Court Judge, sitting under assignment by the Chairman of the Judicial Council.
SHOEMAKER, P. J., and TAYLOR, J., concur.
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