FUREY v. CITY OF SACRAMENTO (1978)

These two cases raise substantially identical questions; accordingly we have consolidated them for hearing and disposition. In both, the trial court sustained demurrers to complaints for inverse condemnation damages, without leave to amend; plaintiffs appealed from later judgments of dismissal.

Lawrence Furey and his predecessor Joseph A. Maun, trustees, have owned 1,157 acres (the Furey property) in the Natomas area of Sacramento County (County) since 1960. Ernest Nellys Webber and Robert Waller (hereinafter collectively the Webbers) have owned 363 acres (the Webber property) in the same area for the same period of time. Between 1961 and 1965, the County laid large trunk sewer lines throughout the Natomas area, and built a sewage treatment plant. Property served by the trunk lines was assessed a total of $3,137,462.86 for the sewer facilities; $840,664.72 of this was against the Furey property and $378,609 against the Webber property. The sewer lines and treatment plant are currently operational.

The Natomas area was annexed to the City of Sacramento (City) on October 7, 1961. The sewer trunk lines and the treatment plant were designed to provide adequate sewage disposal for the planned future residential and commercial growth of the area in accordance with the Natomas General Development Plan adopted by the City on December 6, 1962. Between 1961 and 1965, the City and the County variously adopted other plans and entered into other agreements specifying that the Natomas area generally was subject to residential and commercial development. Among these plans and contracts were a 1962 Sacramento Metropolitan Airport Plan, various freeway agreements, a community plan for Northgate Gardenland, and a community plan for Old City. Despite the completion of the sewer facilities and the existence of these general plans, plaintiffs' properties remained, and still remain, zoned agricultural.^[FN1]

In 1970, the California Legislature enacted legislation to preserve open-space land. (Gov.Code, s 65560 et seq.) As amended, Government Code section 65563 required every city and county, no later than December 31, 1973, to adopt an open-space plan “for the comprehensive and long-range preservation and conservation of open-space land within its jurisdiction.” The Legislature found the preservation of open-space necessary for the “continued availability of land for the production of food and fiber, for the enjoyment of scenic beauty, for recreation and for the use of natural resources.” (Gov.Code, s 65561, subd. (a).) It placed particular emphasis upon the public interest in “discouraging premature and unnecessary conversion of open-space land to urban uses . . . because it will discourage noncontiguous development patterns which unnecessarily increase the costs of community services to community residents.” (Gov.Code, s 65561, subd. (b).)

In accordance with state requirements, the City Planning Commission drafted an “Open Space Element” for the City's General Plan. That document stated in part:

“Lands that are recommended for retention in the Open Space Plan as an agricultural preserve are located in the Natomas area north of Interstate 880. Of the total 6,934 acres within the City in this area, the 3,582 acres north of Del Paso Road are recommended for a permanent agricultural designation while the approximately 3,172 acres of agricultural land south of Del Paso Road are recommended for an agriculture-urban reserve designation. Lands designated for permanent agriculture are not anticipated at the present rate of urban growth locally, to be required for urban land uses within the time span of the City's General Plan; while lands designated for agriculture-urban reserve could be needed in part or wholly for contiguous urban growth outward from the City core within the next twenty year period.”

The Open Space Element also contained recommendations to “(r)eview City agriculture-urban reserve areas at the time of General Plan updating every 5 to 7 years and adjust these areas if contiguous urban growth warrants the change” and to “(r)eview permanent agriculture areas every 20 years and adjust these areas if warranted.”

Four-fifths of the Furey property is within the “permanent agriculture” area, and one-fifth within the “agriculture-urban reserve” area. The Webber property is all within the “agriculture-urban reserve” area.

The Open Space Element was adopted by the city council on June 7, 1973. On the same date the city council enacted an Open Space Ordinance, amending its Comprehensive Zoning Ordinance, to define certain zones as follows:

“Agricultural Zone A: This is an agricultural zone restricting the use of land primarily to agriculture and farming. It is also considered an open space zone. Property in this zone will be considered for reclassification when proposed for urban development which is consistent with the General Plan.

“. . .men

“Agriculture-Open Space A-OS: This is an exclusive agricultural zone designed for the long term preservation of agricultural and open space land. This zone is designated to prevent the premature development of land in this category to urban uses.”

The ordinance further provided that:

“. . . only the following special uses may be located in the following open space zones, subject to the granting of a special permit by the Planning Commission:

“1. ‘A-OS' Agriculture-Open Space and ‘A’ Agriculture.

“a. Accessory dwellings for persons employed for agricultural purposes on the subject property.

“b. Animal kennels and hospitals.

“c. Animal or poultry slaughtering or processing facilities.

“d. Outdoor amusement enterprises.

“e. Livestock feed or sales yards.

“f. Stands for sale of agricultural products.

“g. Mineral extraction operations.

“h. Riding stables.

“i. Golf courses or driving ranges.

“j. Public utilities or facilities.”

Of significant importance, the ordinance added:

“No special permit shall be issued hereunder unless the Planning Commission first determines that such issuance would be in conformity with the Zoning Ordinance and the General Plan as they relate to open space.

“D. Variances: Open space regulations are to be literally and strictly interpreted and enforced to protect the public interest in the preservation and conservation of open space lands and their amenities and the orderly urban development of such lands as required; hence, variances will be granted only in extreme circumstances.” (Emphasis added.)

Thus, although neither the Open Space Ordinance nor the Open Space Element of the General Plan specifically zoned plaintiffs' property as open space, the effect of the Ordinance was to prevent legislatively any change from its agricultural zoning or any special use inconsistent with the open space designation in the General Plan for the five to seven and twenty-year periods respectively specified in the Open Space Element.

On October 30 and on November 30, 1973, the Webbers attempted to file with the City Planning Commission a tentative subdivision map, an application to rezone, and an application to amend the General Plan to allow urban uses on the property. The planning commission refused to accept any of them except the application to amend. From November 1973 through June 1974 (when their complaint was filed), the Webbers unsuccessfully sought a hearing from the planning commission and the city council. They allege, and defendants do not contend otherwise, that they have exhausted their administrative remedies. Furey does not allege that he made any attempt to have the ordinance or zoning changed prior to filing his complaint.

Both Furey and the Webbers allege that the Open Space Element of the General Plan, coupled with the Open Space Ordinance, resulted in an inverse condemnation of their property, including the sewer facilities; or alternatively that the defendants' prior activities, including the 1962 Natomas General Development Plan and particularly the installation of the sewer facilities, estopped the City from designating plaintiffs' property as open space. In addition to the City, they named as defendants the County and the Natomas Sanitation District (which has since been succeeded by the Sacramento Regional County Sanitation District).

I

EXHAUSTION OF ADMINISTRATIVE REMEDIES

We dispose of a preliminary issue. As already indicated, the adoption of the Open Space Element by the city council, along with a strongly-worded zoning ordinance, essentially foreclosed any administrative discretion to permit uses of plaintiffs' property for anything other than agricultural open space. Any doubts on this score were laid to rest by the Webbers' unsuccessful efforts to obtain administrative relief. We are also satisfied that there were no administrative remedies for Furey to exhaust prior to his complaint.

II

ESTOPPEL

We reject the contention that the City is estopped from designating plaintiffs' property as A and A-OS.

In Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 132 Cal.Rptr. 386, 553 P.2d 546, the Supreme Court considered a similar contention. In 1972, Avco had obtained a rough grading permit and county approval of a final map dividing its property into 27 parcels devoted largely to multiple residential uses. Further expenditures were explained thus:

“Avco undertook a number of studies for the development of the tract, and proceeded to subdivide and grade the property. By February 1, 1973, pursuant to approvals issued for such purposes by the county, Avco had completed or was in the process of constructing storm drains, culverts, street improvements, utilities, and similar facilities for the tract as well as for the remainder of the Capron property. Under the county's building code, a permit could not be obtained until grading had been completed. Avco had not completed the rough grading by February 1, 1973, and it neither submitted building plans for the tract nor obtained a permit to construct any structures. Before that date, the company had spent $2,082,070 and incurred liabilities of $740,468 for the development of the tract; it is losing $7,113.46 a day, largely due to loss of anticipated rental value, as a result of its inability to proceed with construction of buildings on the tract.” (Id. at pp. 789-790, 132 Cal.Rptr. at p. 389, 553 P.2d at p. 549.)

On February 1, 1973, the California Coastal Zone Conservation Act became effective, requiring a permit from the California Coastal Zone Commission to develop any property within the coastal zone. Avco contended that its improvements on the property prior to February 1, 1973, gave it a vested right to proceed with its development without such a permit. The Supreme Court rejected the contention on the ground that Avco had never obtained a building permit from the county, then turned to the question of estoppel:

“Avco asserts that even if it does not have a vested right to build without a permit from the commission, it must nevertheless be allowed to proceed with construction because the commission is estopped to enforce the requirements of the Act. This claim is founded upon the so-called ‘Beach Agreement’ entered into between the Orange County Harbor District and Avco, and approved by the state. Under this agreement, Avco consented to sell the county 11 acres of sandy beach at a price substantially below fair market value and an additional 23 acres for parking at fair market value, and to dedicate certain land for access purposes. The district was to use the property for a public park. The sale was conditioned upon the issuance of certain approvals by the county, (9) footnote 9 provides: ”For example, the county was required to approve planned community zoning, and to issue a grading permit“, the enactment of a bill by the Legislature releasing any public rights in the property, and confirmation of the agreement by the State Lands Commission. The approvals were granted, and the bill was passed.

“Both the Beach Agreement and the bill recite that there is a disagreement between the county and Avco with respect to whether the public had acquired prescriptive rights in some of the land purchased by the county, and that the sale is intended to resolve these differences without litigation. Avco asserts that it agreed to sell the property to the Orange County Harbor District in exchange for a commitment by the county and the state that it would be permitted to develop tract 7479 in accordance with the planned community zoning, the regulations and the tract map, that it expended large sums of money in reliance on this promise and that the commission is estopped to apply the requirements of the Act to the development. Predictably, the commission counters this assertion by claiming that the Beach Agreement represented the resolution of a dispute over public prescriptive rights in the land conveyed and has no reference to development of any remaining property.

“The trial court declined to decide whether the commission had violated the Beach Agreement because the court concluded that the Beach Agreement because the court concluded that the state's police power overrides any obligation of the state to perform the Beach Agreement, and that the commission was not estopped to require Avco to obtain a permit under the Act.

“We agree with this aspect of the trial court's conclusion. Land use regulations, such as the Act, involve the exercise of the state's police power (Miller v. Board of Public Works, supra, 195 Cal. 477, 486-489, 234 P. 381), and it is settled that the government may not contract away its right to exercise the police power in the future. (Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 344, 362, 139 P.2d 908; Laurel Hill Cemetery v. City and County (1907) 152 Cal. 464, 475, 93 P. 70; Maguire v. Reardon (1916) 41 Cal.App. 596, 601-602, 183 P. 303.) Thus, even upon the dubious assumption that the Beach Agreement constituted a promise by the government that zoning laws thereafter enacted would not be applicable to tract 7479, the agreement would be invalid and unenforceable as contrary to public policy.” (Avco, supra, 17 Cal.3d at pp. 799-800, 132 Cal.Rptr. at pp. 395-396, 553 P.2d at pp. 555-556.) (Emphasis added.)

The import of Avco is that public policy requires that legislative bodies have maximum freedom to change their minds; absent a “vested right,” a legislative body cannot, either by express agreement, or by estoppel, bind itself to future action or forebearance.

This Court recently reaffirmed the Avco principle in Raley v. California Tahoe Regional Planning Agency (1977) 68 Cal.App.3d 965, 137 Cal.Rptr. 699. “. . . Raley spent $150,000 in reliance upon a land-use permit lawfully granted by a state instrumentality which was then repudiated by a related state instrumentality. The two agencies had overlapping membership and occupied a relationship of mutual awareness and privity.” (Id. at p. 984, 137 Cal.Rptr. at p. 711.) We held that the California Tahoe Regional Planning Agency was “not vulnerable” to an estoppel. (Id. at p. 976, 137 Cal.Rptr. 699.) We pointed out that the “vested right” doctrine is a species of estoppel, and even considered whether the Agency might be estopped “independently of the builder's acquisition of a vested right,” (expressly stating that we did so “without investigating the assumption” that such estoppel was possible). (Id. at p. 978, 137 Cal.Rptr. at p. 707.) In our conclusion, we conceded that “(i)n the evolutionary dynamics of California environmental law, the plasticity of equitable estoppel has been replaced by the rigidity of the vested rights rule. Doctrinal evolution has come full circle from the formal, unmoral rigidities of medieval common law to the individualized humanity of equity and back again to the fixed demands of the vested rights rule.” (Id. at p. 985, 137 Cal.Rptr. at p. 712.)

Under Avco, only estoppels which rise to the level of “vested rights” can be judicially recognized in zoning and permit cases. Although as pointed out in Raley, “(s)everal decisions intimate that a building permit may no longer be the sine qua non of a vested right if preliminary public permits are sufficiently definitive and manifest all final discretionary approvals required for completion of specific buildings,” (id. at p. 975, fn. 5, 137 Cal.Rptr. at p. 705), plaintiffs here obtained no permits or approvals whatever. Their claim based upon the sewer assessments and prior general planning documents is substantially short of the required showing.

III

INVERSE CONDEMNATION

Plaintiffs argue alternatively that the open space regulations constitute a taking or damaging of private property for public use, for which they are entitled to compensation under article I, section 19 of the California Constitution. We agree, with limitations.

A

To put our conclusion into perspective, we briefly discuss the facts alleged by plaintiffs which do not constitute inverse condemnation. Contrary to Furey's contentions, the following allegations in his complaint are not sufficient to state a cause of action:

“. . . said property was at all times mentioned herein and still is at the present time used solely for agricultural purposes at great financial loss to plaintiff.

“. . . sa

“Plaintiff has not and cannot maintain and operate his aforementioned property so as to obtain a reasonable economic return on his investment so long as said property is restricted to agricultural uses. The only beneficial and reasonable use of plaintiff's property is for residential and commercial uses.

“. . .s p

“Said enactments prohibit any and all beneficial and reasonable uses of plaintiff's property; . . .”

Equally insufficient are the Webbers' allegations that their “property has been rendered unusable for any private purposes and made completely valueless for any private use not conforming with Open Space Element of the General Plan, and plaintiffs have been further required to hold said property solely for the use and benefit of the public uses described in the open space of the General Plan,” and that they “. . . have been unable to derive value, rents, revenues or profits commensurate with their investment in the subject property and the public improvements thereto for other than agricultural uses . . . .”

It is clear from such allegations that the properties are presently being used for agricultural purposes, a use permitted by the Open Space Ordinance. We take judicial notice that such use is substantial. (Evid.Code, s 452, subd. (g).) Accordingly, under the well-settled law most recently summarized by the Supreme Court in HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 125 Cal.Rptr. 365, 542 P.2d 237, there has been no taking.

In HFH, plaintiffs contracted to purchase agriculturally zoned property upon condition that the seller obtain commercial zoning. The seller did so, and the sale was consummated. The City of Cerritos subsequently approved a parcel map subdividing the property in a manner appropriate for commercial uses. Five years elapsed without development, and in 1961, the city placed a moratorium on more intensive uses of the property by temporarily zoning it agricultural. In 1972, despite plaintiffs' requests to restore the commercial zoning, and despite the fact that land on other corners of an intersection on which plaintiffs' land abutted was commercially zoned, the city rezoned it into single family residential. (Id. at pp. 511-512, 125 Cal.Rptr. 365, 542 P.2d 237.) The Supreme Court noted:

“Plaintiffs allege that the situation of their properties rendered them ‘useless' for single family residential purposes; they do not, however, allege that the properties are useless for other purposes consonant with the zoning category in which they now lie. As a consequence, according to plaintiffs, their land, which they purchased for some $388,000 and hoped to sell for $400,000, suffered a decline in market value to $75,000.” (Id. at p. 512, 125 Cal.Rptr. at p. 368, 542 P.2d at p. 240, fn. omitted.)

The Supreme Court added:

“Plaintiffs also complain of the deprivation ‘of any reasonably beneficial use of . . . said properties commensurate with its value.’ In the same section of their complaints, however, they allege a remaining fair market value of $75,000. The substantial value of their land rebuts the allegation that they cannot enjoy any reasonably beneficial use of it.” (Id. at p. 512, fn. 2, 125 Cal.Rptr. at p. 368, 542 P.2d at p. 240.)

In upholding the trial court (which sustained a demurrer to the complaint), the Supreme Court quoted with approval from the holding in Morse v. County of San Luis Obispo (1967) 247 Cal.App.2d 600, 55 Cal.Rptr. 710.

“ ‘Plaintiffs are apparently attempting to recover profits they might have earned if they had been successful in getting their land rezoned to permit subdivision into small residential lots, but landowners have no vested right in existing or anticipated zoning ordinances. (Anderson v. City Council (1964) 229 Cal.App.2d 79, 88-90, 40 Cal.Rptr. 41.) A purchaser of land merely acquires a right to continue a use instituted before the enactment of a more restrictive zoning. Public entities are not bound to reimburse individuals for losses due to changes in zoning, for within the limits of the police power ” some uncompensated hardships must be borne by individuals as the price of living in a modern enlightened and progressive community.“ (Metro Realty v. County of El Dorado (1963) 222 Cal.App.2d 508 (35 Cal.Rptr. 480.) . . . )’ (247 Cal.App.2d at pp. 602-603, (55 Cal.Rptr. 710) italics added.)” (Id. at p. 516, 125 Cal.Rptr. at p. 370, 542 P.2d at p. 242, fn. omitted.)

The HFH court expressly stated that it did not decide the question of entitlement to compensation “in the event a zoning regulation forbade substantially all use of the land in question.” (HFH, supra, 15 Cal.3d at p. 518, fn. 16, 125 Cal.Rptr. at p. 372, 542 P.2d at p. 244.) (Emphasis in original.) But as noted, plaintiffs here, as in HFH are able to make substantial use of their property.

Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 142 Cal.Rptr. 46, supports our conclusion on closely similar facts. The court there noted that ordinarily a declaration that the city's actions prevented “any economical use” of the property “. . . would raise an issue as to a material fact.” (Id. at p. 146, 142 Cal.Rptr. at p. 49.) However, since the complaint alleged that the property had a value of $675,000 for agricultural use, the Brown court found no triable issue of fact for purposes of a motion for summary judgment. (Id. at p. 146, 142 Cal.Rptr. 46.) Although plaintiffs here do not allege a specific value of their land for agricultural use, such value unquestionably exists. Such has been the land's use both historically and currently, and there is no allegation that its value for such use has been diminished. The fact that plaintiffs' dollar investment may be so great that they cannot return a profit from agriculture is simply one of the risks of the marketplace, as pointed out in HFH.

The fact of agricultural use completely distinguishes this case from Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613, 129 Cal.Rptr. 575, heavily relied upon by plaintiffs. Eldridge concerned property which was among some 6,000 acres of privately owned and undeveloped foothills which were annexed to the City of Palo Alto in 1959 and promptly zoned for single-family residential use on minimum one-acre sites. (Id. at p. 621, 129 Cal.Rptr. 575.) Ten years later, in 1969, the city began a series of studies and regulations which resulted in downzoning the property to minimum ten-acre homesites designated for “open space use” which included a host of ambiguous restrictions and provisions for public access. The Eldridge majority held that the complaint presented sufficient factual issues to withstand a demurrer:

“Among the many factual issues to be resolved in the cases before us is whether the 10-acre homesites of plaintiffs' land are salable at all. This question would seem to be of particular significance, since the same homesites are designated by the ordinances for ‘open space use,’ including public park and recreation purposes and ‘wildlife habitat.’ Other factual inquiries would concern: the extent, and impact, of the intrusion upon plaintiffs' property by the ‘paths and trails system’ planned to allow ‘public access through the Foothill lands'; whether there is any reasonable basis for the ordinances' declared aims of encouraging agricultural usage, preserving natural resources and creating wildlife sanctuaries on the land; and generally, the reasonableness of the ordinances' concept that although the foothills may be subdivided into 10-acre homesites, they must nevertheless without compensation therefor remain ‘open space’ according to the definitions and usages of Government Code section 65560. The resolution of these and other such issues will determine whether plaintiffs have in fact been denied any reasonable or beneficial use of their land.” (Id. at pp. 628-629, 129 Cal.Rptr. at p. 584.)

The spectre conjured up by the various Palo Alto regulations and planning statements that property owners might be required to maintain some kind of public outdoor zoo to be traversed by hikers and birdwatchers, is simply not applicable here.^[FN2]

B

There is one crucial respect in which this case differs from those mentioned above. Webber approaches the proper distinction by arguing that the sewer lines themselves are property which has been inversely condemned. Both practically and legally, however, this contention is fallacious, for the sewer lines are fixtures, inseparable from the real property. Moreover, they are indistinguishable from the culverts and grading in Avco, which were there held noncompensable.

It is not the sewer lines that have been taken for public use, any more than the landowner's costs of obtaining permits, grading the property, or purchasing it at an inflated price were taken for public use in the other cases. What has been taken here for public use, and will continue so to be taken,^[FN3] is the money paid on the sewer assessment.^[FN4] The problem is not merely that plaintiffs have been deprived of the use of the sewer and treatment plant; it is that they have been required to pay for such a facility for the use of others and not themselves. From and after the effective date of the Open Space Ordinance, as each bond installment has accrued and been paid, plaintiffs' dollars (property) have been taken for public use (to amortize the sewer bonds) without just compensation (the substantial availability for use of the sewer facility).

Such an assessment could not have been imposed upon plaintiffs if their property had been similarly restricted at the time of assessment, for assessments of this type are required to be “proportional to the benefits bestowed on the properties assessed . . ..” (Dawson v. Town of Los Altos Hills (1976) 16 Cal.3d 676, 689, 129 Cal.Rptr. 97, 105, 547 P.2d 1377, 1385. See Harrison v. Board of Supervisors (1975) 44 Cal.App.3d 852, 856-857, 118 Cal.Rptr. 828; Cogan v. City of Los Angeles (1973) 34 Cal.App.3d 516, 520-521, 110 Cal.Rptr. 100.) Needless to say, plaintiffs cannot now challenge the validity of the assessment; they are barred by the 30-day statute of limitations of the Improvement Act of 1911, Streets and Highways Code section 5660. (See Noyes v. Chambers & DeGolyer (1927) 202 Cal. 542, 261 P. 1006; 40 Cal.Jur.2d, Public Improvements and Special Assessments, s 109, p. 451.) They can, however, justifiably and validly assert that the Open Space Ordinance substantially destroyed for them the benefits of the sewer, thereby rendering the mandatory assessment installments paid thereafter takings without just compensation.

We limit our holding to installments which came due and were paid after the Open Space Ordinance was adopted on June 7, 1973, because no taking occurred until the property was so restricted. Although plaintiffs complain that their earlier payments have also been taken, they received adequate compensation for them in the form of availability of the service and of probable higher market values at the time. The fact that market values decreased as a result of the new restrictions does not lessen the past benefits, theoretical though they may have been.

Future installments are subject to the same treatment, so long as the sewer facility remains unavailable for plaintiffs' use. The total damages to be awarded plaintiffs are therefore equal to the past installment payments allocable to June 7, 1973, and following, plus interest thereon (Civ.Code, s 3287; Holtz v. San Francisco Bay Area Rapid Transit Dist. (1976) 17 Cal.3d 648, 657, 131 Cal.Rptr. 646, 552 P.2d 430), and the present value of any future installment payments to be made while the Open Space Ordinance remains in force.

We observe parenthetically that future installments present no practical valuation difficulty in this case, because we are concerned with 14-year bonds whose term commenced in 1965. In another context however, where at the time of valuation the bonds are relatively new and the possibility of elimination of restrictions within their remaining life exists,^[FN5] a question of fact for the court or jury will be present. It may involve extremely complex and difficult predictions such as anticipated growth of the area, future need for agricultural land, political make-up of the city council, and the like. Nevertheless, such matters are not beyond the ken of property appraisers (or other expert witnesses) who often consider them when appraising land, especially when it is purchased or sold with the expectation of a subsequent change in zoning or use.

We remark also that we are not heedless of the arguable potential inequity of our holding to a public entity and correlative unwarranted advantage to the inverse condemnee. Assume that an inverse condemnation award is made early in the life of a given assessment bond under circumstances akin to those before us, and after the bond is fully amortized a redesignation of zoning makes the sewer or other service then available to the condemnee. It can be claimed that he will then receive the benefit of the service without paying for it, and that to that extent the rule of law we here adopt is arbitrary. Yet we are undeterred. The alternatives are (1) to deny compensation entirely, and (2) to speculate unduly on a possible ultimate benefit long after the service has been paid for; neither alternative is acceptable. Moreover, if and when the service is thus one day made available, the condemned property will be treated as new land not previously included in the service district; thus appropriate fees may be charged as with lands never included in the district or with included lands for which service is sought to be intensified. (See Health & Saf. Code, ss 5474, 5474.8.)

In sum, we hold that plaintiffs can state a cause of action for inverse condemnation of the sewer assessment installment payments, present and future, and accordingly, the demurrers were improperly sustained. On remand, plaintiffs should be permitted to amend in accordance with this opinion.^[FN6]

The judgments are reversed.

FOOTNOTES

1.  The Webbers allege that they developed a trailer park on a portion of their land, apparently in 1970. Since this use is inconsistent with agricultural zoning, we assume that this portion of land was not affected by the City's subsequent Open Space Ordinance and is therefore not included in this litigation.

2.  Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613, 129 Cal.Rptr. 575, has been criticized. (See Comment, Eldridge v. City of Palo Alto: Aberration or New Direction in Land Use Law (1977) 28 Hastings L.J. 1569.) Since this case is distinguishable, we express no view. (See also Sizing Up Just Compensation Relief for Down-Zoning After HFH and Eldridge (1977) 10 U.C. Davis L.Rev. 31.)Other cases relied on by plaintiffs, including our opinion in Peacock v. County of Sacramento (1969) 271 Cal.App.2d 845, 77 Cal.Rptr. 391, were adequately distinguished in HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 516-517, 125 Cal.Rptr. 365, 542 P.2d 237, footnote 11, and need not be further discussed. (See also discussion of Peacock and Eldridge in Frisco Land and Mining Co. v. State of California (1977) 74 Cal.App.3d 736, 759, 141 Cal.Rptr. 820, written by Justice Sims, who dissented in Eldridge.

3.  The record is not entirely clear as to whether all payments on the sewer assessment bonds have been made or whether some remain. We assume that there is at least one installment still due. (See infra, p. 494.)

4.  Personal, as well as real, property is subject to inverse condemnation. (Concrete Service Co. v. State of California ex rel. Dept. Pub. Wks. (1969) 274 Cal.App.2d 142, 78 Cal.Rptr. 923; Sutfin v. State of California (1968) 261 Cal.App.2d 50, 67 Cal.Rptr. 665.

5.  E. g., the City in this case may redesignate land in the agricultural-urban reserve designation or in the A zone for urban uses at some future date “if contiguous urban growth warrants the change” (see p. 487 ante ).

6.  The remainder of plaintiffs' contentions are without merit and require no discussion.

PARAS, Associate Justice.

PUGLIA, P. J., and REGAN, J., concur.