Southern Pacific Co. v. City of Los Angeles

Southern Pacific Company, as the owner of certain property abutting on South Alameda Street in Los Angeles, applied for a permit to build a warehouse thereon. When the city refused to issue such permit unless compliance was had with section 12.37 of the Los Angeles Municipal Code, requiring petitioner to dedicate a portion of its property to the city for street widening purposes in accordance with its master plan of community development, Southern Pacific brought this mandamus proceeding to compel the issuance of such permit. The trial court having found against petitioner’s claims that section 12.37 is unconstitutional on its face, and as applied to the facts at bar, petitioner has appealed.

With certain limited exceptions, section 12.37 provides, in essence, that no building or structure shall be erected or enlarged upon any lot in an R3 or less restrictive zone (therefore including the M3 zone in which petitioner’s property is located), if such lot abuts upon a major or secondary highway, unless the half of the highway adjacent to such lot has been dedicated and improved to its master planned width. The trial court found that the above section is part of the city’s comprehensive zoning plan made necessary by an extensive population growth; that the existing street system within the city is materially deficient and inadequate, increasing with the population explosion and the accompanying increase in motor vehicle registration and building construction; that the provisions of section 12.37 benefit both petitioner’s property and the public generally; that the conditions imposed by section 12.37 are neither arbitrary nor unreasonable; that section 12.37 does not deprive petitioner or others of the entire use or economic benefit of their property, contains reasonable classifications and provides adequate standards for its enforcement ; that the warehouse in question will generate increased traffic on South Alameda and will further congest traffic by the addition of railway lines to service the same: and that the required dedication will not cause petitioner undue hardship or financial loss.

The foregoing findings are opposed, generally and specifically, to the several contentions made by petitioner below and renewed on this appeal—that section 12.37 authorizes an unconstitutional taking of property without just compensation contrary to article I, sections 1 and 16 of the California Constitution and the Fifth and Fourteenth Amendments of the federal Constitution, and accordingly, is not a noncompensable taking under the police power. Further constitutional

Section 12.37 is assertedly a zoning ordinance, appearing under an article of the municipal code entitled “The Comprehensive Zoning Plan of the City of Los Angeles. ” It is contended by appellant that “A zoning ordinance may not be used as a device to take property for public use without the payment of compensation.” (Kissinger v. City of Los Angeles, 161 Cal.App.2d 454 , 462 [ 327 P.2d 10 ]), such action being contrary to the protection guaranteed by the federal and state Constitutions in that regard. To such contention respondents reply that the dedication or taking under the subject ordinance is a form of “police power acquisition” as contrasted to acquisition by eminent domain. In Ayres v. City Council of Los Angeles, 34 Cal.2d 31 [ 207 P.2d 1 , 11 A.L.R.2d 503 ], where the court upheld the validity of conditions to the approval of a subdivision that the sub divider dedicate part of the land for street purposes, there was an approving reference to cases from other jurisdictions “where the distinction was made between the exercise of authority in such proceedings and the exercise of the power of eminept domain. In each of those cases it was held that the requirement for the dedication of land to the widening of existing streets was not a compulsory taking for public use; but that where it is a condition reasonably related to increased traffic and other needs of the proposed subdivision it is voluntary in theory and not contrary to constitutional concepts.” (P. 42.) In other decisions involving land development, though not pertaining to subdivisions as such, the courts have recognized that dedication can be required under the police power as a condition thereto. (Bringle v. Board of Supervisors, 54 Cal.2d 86 [ 4 Cal.Rptr. 493 , 351 P.2d 765 ] ; Mitchell v. Morris, 94 Cal.App.2d 446 [ 210 P.2d 857 ].) Concededly, no appellate decision has been rendered in this state passing directly upon the factual situation at bar. By analogy, however, both sides claim that Ayres and Bringle favor their respective positions.

It is urged by appellant that Ayres and Bringle should be limited to the circumstances there presented. In Bringle, it is pointed out, the petitioner was asking for a zone variance, the granting of which lay largely in the discretion of the body

In light of the above, appellant argues that broad language appearing in landmark zoning cases which emphasize the flexibility of police power should not be applied to ordinances such as the one before us. For example, in Euclid v. Ambler Realty Co., 272 U.S. 365 [ 47 S.Ct. 114 , 71 L.Ed. 303 , 54 A.L.R. 1016 ], it is declared: “Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet'the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.” (P. 387.) Likewise, in Miller v. Board of Public Works, 195 Cal. 477 [ 234 P. 381 , 38 A.L.R. 1479 ] : “Thus it is apparent that the police power is not a circumscribed prerogative, but is elastic and, in keeping with the growth of knowledge and the belief in the popular mind of the need for its application, capable of expansion to meet existing conditions of modern life and thereby keep pace with the

But in Consolidated Bock the court made use of language, less broad than hereinabove referred to, with which to indicate its approval of comprehensive zoning legislation, specifically its value for the promotion of the material welfare of a people. The Pennsylvania Coal case (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 [ 43 S.Ct. 158 , 67 L.Ed. 322 , 28 A.L.R. 1321 ]) decided in 1922 and relied on here by appellant, was distinguished and held inapplicable to such legislative enactments: “It was decided before the principles of comprehensive zoning were established. . . .” (P. 528.) Earlier in its opinion the court pointed out that “When the Supreme Court of the United States in 1926 set its seal of approval upon the constitutionality of this then new type of legislation in Euclid v. Ambler Realty Co., 272 U.S. 365 [ 47 S.Ct. 114 , 71 L.Ed. 303 , 54 A.L.R. 1016 ], the cycle was completed, and comprehensive zoning in the short space of ten years had taken its place as a constitutionally recognized part of our legal and political system. We indulge in this bit of legal history because, as will appear, plaintiffs place their principal reliance upon language first found in eases decided long before the principle of comprehensive zoning was anywhere applied in this country or its constitutionality established.” (P. 521.) The court then went on to state that “As a corollary to this recognized principle of the capacity of the police power to meet the reasonable current requirements of time and place and period in history is the equally well settled rule that the determination of the necessity and form of such regulations, as is true with all exercises of the police power, is primarily a legislative and not a judicial function, and is to be tested in the courts not by what the judges individually or collectively may think of the wisdom or necessity of a particular regulation, but solely by the answer to the question is there any reasonable basis in fact to support the legislative determination of the regulation’s wisdom and necessity?” (P. 522.)

In section 12.02 of the Municipal Code the purpose of the subject comprehensive zoning plan is declared in pertinent part as follows: ‘ ‘ The purpose of this Article is to consolidate

We are of the view that there is validity to respondents’ argument that since the courts have recognized that the Legislature may properly insist upon dedication of the means of access—and that, of necessity, implies sufficient access— both in subdivision and nonsub division eases, a flexible police power may require the dedication of additional access, under the circumstances here, when the need therefor arises. Thus, in Bringle (a nonsubdivision case) the court noted that conditions may be attached to the granting of a variance in order to preserve “the general purposes and intent of the zoning ordinance.” In our ease, as shown above, one of the purposes of the comprehensive zoning ordinance is “to lessen congestion on streets ... to facilitate adequate provisions for community utilities and facilities such as transportation.” Continuing, “One of the general purposes is to provide for adequate streets and highways, and a street that might be adequate for the needs of an agricultural area might be inadequate if part of the area is to be used for another purpose.” Mention is then made of Ayres; it is described as “an analogous situation” where the court “held that a city may require the dedication of land for the widening of an existing street as a condition to its approval of a subdivision map and that such

Recapitulating, if Bringle is analogous to Ayres, then the present proceeding is analogous to both those cases under the process of reasoning adopted by our Supreme Court to establish such analogy. In Wine v. Council of City of Los Angeles, 177 Cal.App.2d 157 [ 2 Cal.Rptr. 94 ], cited by appellant, the problem was not quite the same as ours; we have also noted the criticism of Bringle in 13 Hastings Law Journal 401, but it still governs here, such criticism notwithstanding. Numerous authorities, state and federal, have also been cited by each side. It will suffice to observe that they reflect the continuing conflict between the public interest manifested through the exercise of the police power on the one hand, and on the other hand, the property interest of the land owner which is disclosed through the exercise of eminent domain. As pointed out in Bacich v. Board of Control, 23 Cal.2d 343 , 351 [ 144 P.2d 818 ] : “In some degree those opposed policies are manifested in the conflict between the constitutional mandate that compensation be paid when private property is taken . . . for a public purpose and the exercise of police power where compensation need not be paid. The line between those two concepts is far from clearly marked.” Bach case, of course, must stand or fall on its own particular facts; and in our view the decision in Ayres is still another application of the principle that the exercise of the police power in traffic regulation cases “is simply a risk the property owner assumes when he lives in modern society under modern traffic conditions”

Our conclusion that the ordinance is not unconstitutional on its face finds further support in light of the fact that it is appellant, not respondents, who wishes to put its property to the use now contemplated notwithstanding the increase in traffic which will be generated thereby. If it desires the benefits resulting from the improvement or change in the character of the land, it must meet any reasonable condition imposed by respondents before the issuance of a building permit—such undoubtedly is the holding in Ayres, which case is cited with approval by the New York Court of Appeals as another instance where compliance with pertinent local ordinances has been sustained as a valid exercise of the police power. (Brous v. Smith, 304 N.Y. 164 [ 106 N.E.2d 503 ].) Said the New York court: “Of course, no one may question that the town, were it desirous of constructing a road across petitioner’s property, would have to condemn the necessary land and compensate petitioner. But the town here has no such desire or design and does not seek to condemn land owned by petitioner. It is petitioner who wishes to construct dwellings on his property, and the town merely conditions its approval of such construction upon his compliance with reasonable conditions designed for the protection both of the ultimate purchasers of the homes and of the public. That the state may empower the town to do this, is clear ‘. . . the subjection to the police power of all property gives the state the right to forbid the use of property in the way desired save under reasonable conditions, promoting the public welfare. . . .’ ” ( 106 N.E.2d 503 , 506-507.) To the same general effect is City of Buena Park v. Boyar, 186 Cal.App.2d 61 [ 8 Cal.Rptr. 674 ], where the court sustained the imposition of a condition on a subdivider to pay $50,000 to help in the construction of a drainage ditch which would serve the needs not only of the lot OAvners but also those of the eity generally. Citing Ayres, the court declared that “The subdividing of land is a privilege to which the Legislature has attached certain conditions.” (P. 67.) Again, although appellant insists otherwise, we perceive no rational distinction between the “privilege” conditionally accorded subdividers and that reflected by appellant’s desire to improve its property under the circumstances here present.

Appellant nonetheless points out that police regulations

There was evidence that appellant’s proposed warehouse would occupy approximately 3y2 acres of land and over 5 acres of floor area. Twenty railroad cars and 48 trucks could be accommodated at a single time and could be operated, if desired, by tenants on a 24-hour basis. If so used, more than 1,000 trucks would be utilized each day. The site of the warehouse is located in the city’s major produce terminal—other goods and merchandise delivered to that point are distributed throughout the city by truck. The intersection of 8th and Alameda Streets is now over capacity and will be even more so by 1980, at which time the traffic count will have increased to approximately 50,000 vehicles per day. The progress of traffic is always slowed by the entry of trucks into the traffic flow —being further affected in that regard by the operation of appellant’s railroad lines. Access to Alameda Street is essential to appellant’s operation, Alameda being a major north-south truck traffic route second in use only to the Harbor Freeway. At the time of trial six dedications along Alameda had been offered pursuant to section 12.37; while portions of that street already met the width contemplated under the master plan, the remainder of Alameda within the freeway loop should meet the master planned width within the next two to five years. Even a widening of only one block will have a beneficial effect on the overall traffic flow. Too, as noted in footnote 1, supra, as a general proposition the increased accessibility of the property increases the value of the property. Although the burden lay with appellant to show that the ordinance is invalid in its application to appellant’s property, one would have expected some showing that it should be excepted from the general proposition just mentioned. In the absence thereof, the trial court properly determined that the proposed dedication of a small portion of appellant’s land, less than one-fifth of an acre from a parcel of some 50 acres, would work no undue hardship but, to the contrary, would be of benefit not only to appellant’s operations but also to the value of its land. We are satisfied that appellant has presented no valid argument which militates against the enforcement of the subject ordinance.

There is no merit to the further claim that the ordinance is constitutionally objectionable because it violates the equal protection clause of the federal and state Constitutions

Appellant’s final constitutional objection to the ordinance is that it is vague and uncertain; accordingly, since no sufficient standards are prescribed to guide the administrative officer charged with its enforcement, the result is an unlawful delegation of legislative authority. (Agnew v. City of Culver City, 147 Cal.App.2d 144 , 153-154 [ 304 P.2d 788 ].) Specifically, appellant argues that no concrete standard is furnished for the granting of variances from the requirement of dedication, the only guideline being compliance with the “spirit and intent” of the act. A Texas case (Texas Consol. Theatres v. Pittillo (Tex. Civ. App.) 204 S.W.2d 396 ) holds that such language is too vague to constitute a proper guideline; but, as pointed out in New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552 [ 26 S.Ct. 144 , 50 L.Ed. 305 ], the practicability of a given situation has some bearing in the determination of how much discretion may be lawfully delegated to an administrative officer. Thus, the ordinance upheld in Bringle involved a delegation of authority to “impose such conditions on the issuance of the permit as it determines proper to provide for the maintenance of the integrity and character of the neighborhood and the general purpose and intent of the ordinance.” ( 54 Cal.2d 86 , 88.) Too, as in Mitchell v. Morris, 94 Cal.App.2d 446 , 449 [ 210 P.2d 857 ], a sufficient standard can also here be found by reference to the comprehensive zoning plan considered in its entirety and with due “regard to the complexity of situations that could arise. ” As further stated in Mitchell, “discretion is vested in the planning commission, but it is not an uncontrolled and unguided discretion, even though it may call for the exercise of ‘ judgment of a high order. ’ ” (P. 449.) The present ordinance calls for an awareness by the administrative officers of “practical difficulties” and the avoidance of “unnecessary hardship” in the consideration of a variance from the dedication requirement. While this may call for “judgment of a high order,” such guidelines are not so vague as to be constitutionally objectionable.

Appellant’s final complaint is that certain findings of the trial court are not supported by the evidence; it also asserts that certain findings requested by appellant should have been made. Although some 60 pages of appellant’s opening brief

For the foregoing reasons, the judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

A petition for a rehearing was denied May 27, 1966, and appellant’s petition for a hearing by the Supreme Court was denied June 29, 1966.