Fellom v. Redevelopment Agency

This is an appeal by plaintiffs from a judgment after order sustaining defendants’ demurrer to plaintiffs’ complaint without leave to amend.

Appellants are the owners of three separate vacant and unimproved parcels of land in the Diamond Heights District in San Francisco. Respondent Redevelopment Agency has designated Diamond Heights a blighted area and approved it for redevelopment under the Community Redevelopment Law (Health & Saf. Code, § 33000 et seq.), with approval for redevelopment by the Board of Supervisors of the City and County of San Francisco having been determined before the commencement of this action. Appellants filed an action in the San Francisco Superior Court seeking to enjoin the redevelopment agency from proceeding in eminent domain against their property. The complaint alleges that they made application to the agency to allow them to participate in the redevelopment of their property in conformance with the master plan, and in accordance with the provisions of the California Community Redevelopment Law, but that the agency refuses to allow the plaintiffs their right to participate; that this refusal on the part of the agency to allow the plaintiffs to participate is a violation of the due process and equal protection clauses of the Fourteenth Amendment of the Constitution of the United States and the Constitution of the State of California. The complaint also alleges that the agency denies participation to the majority of the owners

The Community Redevelopment Law as affecting Diamond Heights has been passed on by this court (Redevelopment Agency v. Hayes, 122 Cal.App.2d 777 [ 266 P.2d 105 ]).

The appellants here urge that the Redevelopment Law is unconstitutional as applied to nonslum-type “blighted” areas or to undeveloped vacant land areas so designated. In support of this position the appellants cite Schneider v. District of Columbia, 117 F.Supp. 705 , and also Redevelopment Agency v. Rayes, supra. The citation of Schneider v. District of Columbia can be of small solace to appellants here, since the opinion in Berman v. Parker, 348 U.S. 26 [ 75 S.Ct. 98 , 99 L.Ed. 27 ], supersedes the Schneider opinion and affirms the validity of the Federal Redevelopment Law applicable to the District of Columbia. Appellants also cite Redevelopment Agency v. Hayes, 122 Cal.App.2d 777 [ 266 P.2d 105 ], However, that case in fact held that the Redevelopment Law is not unconstitutional as applied to nonslum-type “blighted” areas or to undeveloped, vacant land areas so designated, specifically the Diamond Heights area. In Berman v. Parker, supra, it is said, “In the present case, the Congress and its authorized agencies [the District of Columbia Redevelopment Land Agency, the National Capital Planning Commission, and the District Commissioners] have made determinations

“Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” (Pp. 35, 36.)

“If the Agency considers it necessary in carrying out the redevelopment project to take full title to the real property involved, it may do so. It is not . . . the function of the courts to sort and choose among the various parcels selected for condemnation.

“The rights of these property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking.” (P. 36.)

“If owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly. The argument pressed on us is, indeed, a plea to substitute the landowner’s standard of the public need for the standard prescribed by Congress. But as we have already stated, community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis—lot by lot, building by building.” (P. 35.)

We feel that the appellants’ contention that the Redevelopment Law is unconstitutional as applied to nonslum-type “blighted” areas is not supportable, and hold that in the absence of an unconstitutional exercise of the powers granted under the Community Redevelopment Law the legislation is valid and constitutional.

The appellants also urge that the Redevelopment Law is unconstitutional as being legislation by the state on matters of municipal concern, in violation of article XI, sections 6, 8 and 13 of the state Constitution; and also that there has been an unlawful delegation of legislative power to the agency by the board of supervisors. Neither of these contentions is well taken. It must be remembered that redevelopment, when enacted by the state, is a matter of state interest, and its implementation is in order to effect a state objective. The California Housing Authorities Law is particularly apposite here, since that law gives to housing authorities certain powers as public bodies corporate and politic and not as agents of the city in which they function. “[T]he local operation

While legislative declarations, such as those contained in section 33040, Health & Safety Code, and 33045 of the same code, are not binding upon this court, they are, as declarations of policy, “entitled to great weight and it is not the duty or prerogative of the courts to interfere with such legislative finding unless it clearly appears to be erroneous and without reasonable foundation.” (Housing Authority v. Dockweiler, 14 Cal.2d 437 , 449-450 [ 94 P.2d 794 ].)

The appellants and amicus curiae on their behalf present a more difficult problem in relation to the application of the code sections in the Community Redevelopment Law which contain provisions for participation in the redevelopment plan by owners of property embraced in the area to be redeveloped. As is indicated in “Redevelopment: Making Misused and Disused Land Available and Usable,” 8 Hastings Law Journal 241 (May 1957), in a footnote on page 260, the legislative enunciation of the owner’s rights to participate in a redevelopment plan leaves something to be desired in clarity and certainty. These sections of the Health and Safety

However, section 33702, which provides, “Every redevelopment plan which contemplates property owner participation in the redevelopment shall contain alternative provisions for redevelopment of the property if the owners fail to participate in the redevelopment as agreed,” appears to be a recognition of the power to have redevelopment without property owner participation. Coupled with this latter language, it should be remembered that section 33267 provides, “Within the redevelopment area or for purposes of redevelopment an agency may: ... (b) Acquire real property by eminent domain . . .,” thereby giving the agency the absolute power of eminent domain for proper public purposes.

Assuredly, the power of eminent domain does not contemplate any participation by the owner of the property condemned. The language contained in section 33745, “If the redevelopment plan adopted provides for participation in the redevelopment of property in the area by the owners of such property, and if for 30 days after the adoption of the plan, the owners fail or refuse to enter into a binding agreement for participation in accordance with the plan, the alternative provisions provided for in Section 33702 become effective as the official redevelopment plan of the project area. The legislative body may extend the 30-day period by not more than 60 days,” is certainly language which contemplates redevelopment plans which do not provide for participation by the owners, since, if such were not the case, the first sentence of the section would not be worded as it is.

Appellants here complain that the distinction drawn by the redevelopment agency between owners of improved property and owners of unimproved property is unreasonable and discriminatory. Contrariwise, such distinction appears to be reasonable and supportable. Even the Community Redevelopment Law itself, Health and Safety Code, section 33275, recognizes the distinction between these classes of property; that section reads: “Without the consent of an owner an agency shall not acquire any real property on which an existing building is to be continued on its present site and in its present form and use unless such building requires structural alteration, improvement, modernization or rehabilitation, or the site or lot on which the building is situated requires modification in size, shape or use or it is necessary to impose upon such property any of the standards, restrictions and controls of the plan and the owner fails or refuses to agree to participate in the redevelopment plan pursuant to Sections 33701 and 33745.” The distinction between improved and unimproved property is such a distinction as to appeal to the reason. The mere statement of such a distinction raises a presumption of fairness and, as is pointed out in Fraenkel v. Bank of America, 40 Cal.2d 845 , 849 [ 256 P.2d 569 ], “All presumptions favor the legislative classification, which cannot be overturned unless plainly arbitrary. [Citations.] If the

Appellants and amicus curiae have well and ably advanced their arguments. They have included a summary of that portion of the law regarding participation and contrasted it with other states’ redevelopment laws. Their arguments are persuasive but, we feel, not governing.

Furthermore, it appears here that by attempting to enjoin a threatened legal action the appellants have, in fact, mistaken their remedy. All of the grounds which they urge upon this court for a reversal of the judgment of the court below are grounds which may be raised as affirmative defenses in the eminent domain proceedings which are pending in the court below. Under such facts, the judgment appealed from is affirmed.

Peters, P. J., and Bray, J., concurred.

A petition for a rehearing was denied February 28, 1958, and appellants’ petition for a hearing by the Supreme Court was denied March 26, 1958.