Peacock v. County of Sacramento

The controversy centers upon the impact on plaintiffs’ property rights of a series of actions taken by the Sacramento County Board of Supervisors, which actions were based upon what was initially an assumption and subsequently became a publicly stated intention that the county would eventually purchase Phoenix Field for use as a public aviation facility. The “take” area with which we are concerned was included in that additional property which the county would have had to purchase in order to operate the facility in accordance with their expressed plans. The activities of the board, involved in this case, commenced in 1958 and had not been concluded at the time the subject proceeding was initiated.

In 1955 plaintiff Reese, the owner of a large tract of land which extended south from Sunset Avenue (the existing boundary of Phoenix Field) to the American River, entered into an agreement Avith plaintiff Peacock for sale of the property, in successive phases. Peacock’s purchase and subsequent development started with the southernmost portion of this property, followed by generally contiguous sections to the north. His plan Avas to develop the property immediately south of the airport last, because of its potential commercial value once the area south of it was developed. Development of the “take” area was in the planning stages by 1959; subdivision maps had been prepared, the county engineer’s office had been contacted regarding sewer facility commitments and arrangements had been made regarding the bonding of improvements.

In 1958, however, the county had entered into an agreement Avith Leigh-Fisher and Associates, airport consultants, authorizing (1) an analysis of the then existing air trade characteristics of the area and (2) recommendations for an area civil airport development program. The Leigh-Fisher report Avas published in 1959, and, although it was concerned primarily Avith the concept of a new metropolitan airport, it included recommendations for “a county-wide system of [smaller] county airports to serve all the aviation needs of the community. ’' The report expressed the need for a permanent public airport facility in the northeast area of the county, and

After the Leigk-Fisher report was submitted to the board of supervisors in 1959, a joint city-county airport study committee was formed to review the report and its recommendations. In January 1960, the study committee adopted a resolution recommending that the county assume responsibility for airport development in line with the recommendations of the Leigh-Fisher report, and in March 1960, that resolution was ratified by the board of supervisors. Hearings were held by the board of supervisors, looking toward adoption of zoning measures to control further development of the area necessary for Phoenix Field expansion, and Mr. Peacock and his attorney attended several such hearings and protested the intended zoning restrictions.

On April 6, 1960, the board of supervisors adopted Ordinance 697, which by its terms applied only to “. . . the airport commonly known as Phoenix Field.” The effect of the ordinance was to establish requirements in regard to clear airspace for the existing runway. The ordinance prohibited any structure or vegetation with a height in excess of zero feet in an area extending 200 feet from either end of the runway. A clear airspace requirement of 20:1, or 1 foot of elevation for 20 feet of distance was established for the next 10,000 feet of land, i.e., at 200 feet from the end of the “ground zero” zone, no structure was permitted in excess of 10 feet; any excess would constitute an “obstruction.” The county considered this ratio to be required by “TSO-N18” (Technical Standard Order, U.S. Dept, of Commerce) for compliance with certain federal standards with which the county sought to comply in order to be eligible for participation of federal funds. Contemporaneously with enactment of Ordinance 697 the county entered into a lease-leaseback agreement with the private owners of Phoenix Field in order to create the public interest in the airport necessary to qualify for eligible federal funds. Thereafter the sub-lessee, the Fair Oaks Flying Club, operated the airport as a public facility.

By the time Ordinance 697 was adopted, the county had

During the period of time expended by the county in the foregoing acts and planning—commencing with authorization of the Leigh-Fisher report and ending essentially with the filing of this action in October of 1964—plaintiffs have been frustrated in the economic development of their remaining property in that they have been unable to obtain approval of any subdivision maps because of the prospective effect of the entire Phoenix Field project. Early attempts to acquire sewer commitments were unsuccessful because of the uncertain nature of the airport development. Plaintiffs were unable throughout the entire period to obtain information from the county as to the boundaries of the proposed project, although« they were assured repeatedly that the lines would soon be fixed and that the land involved in the airport development would be purchased by the county. Property taxes were raised substantially, although plaintiffs were unable to use the property ; they were told this would be taken into consideration at the time of purchase.

Mr. Peacock submitted a subdivision map in July 1962,

‘ ‘ 1. Did the action of the defendant cause injury or damage to the subject property for which plaintiffs are entitled to compensation ?

“2. Has defendant taken the property by inverse condemnation ?

“3. What is the take or valuation date?

‘14. What is the measure of damages ?

“5. What are the damage and compensation to be awardedÍ

Prior to trial the order was amended to include the issues of defense of limitations and estoppel to plead such defense. The first phase of the action (the phase involved in this appeal) was terminated by the issuance of an interlocutory decree of inverse eomdemnation, and the court made extensive findings. We summarize those relevant to this appeal.

County Ordinance 697, enacted May 5, 1960, was a height restriction ordinance enacted pursuant to the Airport Approaches Zoning Act (Gov. Code, §§ 50485-50485.14) ; said ordinance provided for clear zones and areas wherein vegetation could not be grown or any structure erected, and its effect as to plaintiffs was to deprive them of the beneficial use of portions of their property, in that it prohibited them from growing any vegetation or erecting any structures thereon, although airspace above their property was used by the general public.

The lease-leaseback agreement between the county and the Pair Oaks Plying Club created a public interest in Phoenix Field, which continued during the period of county study regarding the location and development of a publicly owned facility and pending completion of study plans concerning such facility as part of a comprehensive overall aviation plan of the defendant county. Said agreement was executed in connection with adoption of Ordinance 697 to maintain the status quo of land uses in the area, pending completion of such studies, and was still in effect at the time of trial.

During the period between May 5, 1960, and November 13, 1963, the county, through its appropriate officials, affirmatively prevented plaintiffs from making normal, logical subdivision use of their property in extension of their adjoining

Ordinance 697 was an interim study ordinance and was not repealed by the A-I-B rezoning of June 12,1963. A-I-B zoning is a specific type of zoning designed for land adjacent to airports, but was not applied to land adjacent to any other private airport in the county. The land configuration of this zoning was identical with the configuration of the land to be acquired by the county under the general plan of November 13,1963.

By the enactment of Ordinance 697 and the zoning of said property as A-I-B, “the County intended to and did, in fact, maintain the status quo and use of the property as unimproved lands and prevent the development thereof and the construction of improvements thereon during the study period. By such acts the County intended to prevent any increase of cost in the acquisition of the said lands between the time of the enactment of the ordinance and such time as the County would be ready to acquire or purchase the subject property. Absent such restrictive regulation zoning, the County recognized that the subject property would probably be developed with residential units and at the time that the County would be ready to acquire the property, the cost of acquisition would increase because of the improvements that would have been normally constructed upon the subject property. By such actions the County of Sacramento intended to, and in fact did, prevent any development of the subject property, deprive the plaintiffs of any beneficial use of their property, and maintain the status quo thereof during the period from the enactment of Ordinance 697 until the present time. ’ ’

Acquisition of a public interest in and to the Field, the clear zones, and the approach zones, and the “take” area was a necessary and integral part of the total county project since the plan would not have qualified for federal fund participation in the absence of some such interest. Application for such participation was made. Administrative officials were instructed to implement the county’s plan, and pursuant thereto negotiations for purchase of such areas were carried on through 1964 until the latter part of that year, at which time the county withdrew from negotiations and declared a

Finally the court fixed the date of November 13, 1963, as the date upon which the county took the subject property, finding that the said take was of the fee and not of any lesser interest or easement in or across the property. The boundaries of the "take” area were determined to be those set forth in the county’s general plan. The county having negotiated with plaintiffs for the sale and purchase of the "take” area according to the boundaries set forth in the general plan, the court concluded that it was proper and reasonable that the boundaries of the "take” area be defined by said general plan.

Thereupon the court reached conclusions of law generally responsive to the summarized findings of fact, determining that plaintiffs’ right to compensation vested absolutely and irrevocably on November 13, 1963, and that " [A]ny act or acts of the defendant which may remove said restrictions or whereby defendant may abandon the public use of said lands shall not divest or deprive plaintiffs of their right to compensation for said taking. ’ ’ The interlocutory judgment was then entered.

The county contends on appeal (1) that none of the three county enactments and actions involved, standing alone, constituted inverse condemnation; (2) that these actions, cumulatively, and the actions of county officials related thereto did not constitute inverse condemnation; (3) that the finding that plaintiffs’ property was taken by inverse condemnation is not supported by the fact that two of plaintiffs ’ subdivision maps were not approved, nor by the evidence indicating that the board of supervisors was aware of or considered the fact that its planning actions would affect the value of the subject property; (4) that the court’s finding that Ordinance 697 and the rezoning of June 12, 1963, were done for the purpose of preventing an increase in the value of the property was beyond the power of the court to make, since that issue was not before the court either by the pleadings or the pretrial order; and (5) that if any of the county’s actions did consti

In Anderson v. Souza (1952) 38 Cal.2d 825 [ 243 P.2d 497 ], however, the court (adopting the opinion of Justice Van Dyke of this court) in speaking of the predecessor to the present Aeronautics Commission Act and the companion federal act (U.S.C.A., title 49, § 176a) stated: “ ‘. . . these declarations were not intended to and do not divest owners of the surface of the soil of their lawful rights incident to ownership.’ ” (P. 839.) And at page 842 it is stated: “ ‘The State Aeronautics Commission Act contemplates the furtherance of aviation, with its manifold benefits to the public, by operation of both public and private fields, but with respect to the public fields it provides for their establishment by counties, cities and other municipal agencies, requires the finding of public convenience and necessity and contemplates the use of the power of condemnation.' ’ ’

The Airport Approaches Zoning Law (Gov. Code, §§ 50485-50485.14), in relationship to which Ordinance 697 was enacted, also contemplates use of the power of eminent domain in instances where constitutional limitations preclude the use of the zoning power. Further recognition by the Legislature of this limitation is found in Code of Civil Procedure, section 1239.4, which provides: “§ 1239.4. Where necessary to protect the approaches of any airport from the encroachment of structures or vegetable life of such a height or character as to interfere with or be hazardous to the use of such airport, land adjacent to, or in the vicinity of, such airport may be acquired under this title by a county, city or airport district reserving to the former owner thereof an irrevocable free license to use and occupy such land for all purposes except the erection or maintenance of structures or the growth or maintenance of vegetable life above a certain prescribed height or may be acquired by a county, city or airport district in fee.' ’

In support of the contention that the county’s actions were

The view expressed finds support in Sneed, supra, where it is stated at page 209: “In summary, the zoning law and the zoning ordinance permit elimination of airport hazards in approaches to airports through the exercise of the police power, ‘to the extent legally possible’ (Gov. Code, § 50485.2); where ‘ constitutional limitations’ prevent the necessary approach protection under the police power, the necessary property right may be acquired by purchase, grant, or condemnation in the manner provided by law.

“While height restriction zoning has long been recognized

Morse, supra, is equally distinguishable from the instant case. There plaintiffs ’ complaint alleging that the rezoning of an area in the vicinity of a county airport resulted in inverse condemnation was dismissed after a demurrer was sustained, and the ruling was upheld on appeal. Plaintiffs’ property, when purchased by them, was zoned A-l (agricultural), permitting a density of one residential dwelling per acre. They submitted a subdivision map under a county zoning ordinance which provided that applications for rezoning would be given consideration in relation to the general development of the community. Their map proposed R-l use, a zoning under which the allowable density would be increased from one to five residential structures per acre. Thereupon the planning commission undertook to review zoning of the entire area in the general vicinity of the county airport, and after a public hearing the commission recommended and the board of supervisors acted to decrease rather than increase the allowable density of the area to A-l-5, a classification which required five acres for a single-family dwelling. Unlike the case at bench, the new zoning appropriated no airspace above plaintiffs’ property nor did it create any restrictions upon height; nor in the opinion of the appellate court did it attempt to anticipate condemnation by spot-zoning. . .So far as the pleadings disclose, the reclassification neither resulted in the use of plaintiffs’ airspace for public purposes nor did it take away plaintiffs’ right to continue the existing use of the property.” (P. 604.) The case stands for no more than the proposition that the facts there pleaded by plaintiffs showed only that the rezoning ordinance was a proper regulation of land use, rather than a device for taking plaintiffs ’ property.

In distinguishing Sneed v. County of Riverside, supra, 218

“Plaintiffs cite Sneed v. County of Riverside, 218 Cal.App.2d 205 [ 32 Cal.Rptr. 318 ], in support of their argument that this rezoning constituted a taking of private property for public use without compensation. In Sneed, the County of Riverside enacted an ordinance imposing height restrictions on all structures on certain property, the effect of which was to create an easement in the airspace above plaintiff’s property for use as an approach zone to the county airport. Under the ordinance the maximum height limits on Sneed’s land directly adjoining the runway had been lowered to four feet, less than the height of existing structures on the land. Large numbers of aircraft took off and landed at the airport by flying at low altitudes over his property. The basic issue, according to the court, was whether the Riverside ordinance was a height-limit ordinance authorized by the police power or whether in reality it created an air easement over plaintiff’s property without the payment of compensation. After distinguishing between municipal regulations which restrict or destroy certain rights indigenous to the private ownership of property (noncompensable losses) and regulations which transfer those rights to public enjoyment (compensable takings), the court concluded that a regulation which lowers the height of existing buildings within the approach patterns of an airport contemplates a public use of airspace above private land in effect an air easement, for which compensation must be paid. ...” (Morse v. County of San Luis Obispo, supra, 247 Cal.App.2d 600 , 603-604.)

The county contends—independently of the effect of Ordinance 697 and the rezoning of the area—that enactment of the general plan of November 1963 furnished no basis for a finding that plaintiffs’ property was taken in inverse condemnation. The court, however, made no such singular finding. The evidence of its cumulative effect with the other county enactments, considered in relation to acts of the county’s officers administering the various restrictive provisions, contributed to the court's determination of a taking. The court found the actions of the county to be reasonable up to a point in time determined to be November 13. 1963; the actions of the county in continuing the restrictions beyond that date were found to be unreasonable and oppressive, constituting a compensable taking of plaintiffs’ land. The finding has substantial support in the record as a whole. The evidence discloses much eonfu

We allude but briefly to the county’s contention that the finding of a taking by inverse condemnation is unsupported by the fact that the two subdivisions were disapproved or by the evidence indicating awareness and consideration by the board of supervisors of the fact that its planning actions would affect the value of the property. The thrust of the argument is really directed to the propriety of the inferences to be drawn from that evidence, and the rule requiring resolution of conflicting inferences on appeal in support of the judgment below is dispositive of this contention. (3 Witkin, Cal. Procedure (1954) Appeal, § 88, pp. 2251-2252.) The attack upon the finding that the ordinance and rezoning were adopted for the purpose of depressing or preventing an increase of value in plaintiffs ’ property is equally undeterminative of this appeal. That neither the pleadings nor the pretrial order framed such an issue is now of little consequence. The evidence itself was relevant to the question whether the purpose of the enactments was to maintain the “status quo,” itself a proper subject of inquiry, and the facts set forth in the questioned finding were therefore relevant and material to the issues pleaded.

Y. Extent of the “Take”—Easement or Feel

Finally, it is the contention of the county—relying upon Pacific Telephone etc. Co. v. Eshleman (1913) 166 Cal. 640 [ 137 P. 1119 , Ann.Cas. 1915C 822, 50 L.R.A. N.S. 652 ], and Sneed v. County of Riverside, supra, 218 Cal.App.2d 205 —that if a compensable taking did occur it was merely temporary in nature and only of an easement in airspace. The Eshleman case, however, does no more than demonstrate the principle, on dissimilar facts, that a taking may be of less than the fee interest in property (p. 664), while Sneed illustrates, at no advantage to the county, the difference between the taking therein and that found in the case at bench. As pointed out in the report of Sneed (at p. 207) the interest allegedly taken from plaintiff there consisted in terms of an air navigation easement over his property, the easement ranging from 4 feet in height a.t that part of his property closest to thb airport to a height of 75 feet at that farthest away. No

Related to the basic question of the extent of the interest taken is the charge by the county that the trial court abused its discretion in denying the county’s motions for continuance, in the stages of the proceeding approaching trial, at a time when the question of abandonment of the project was then before the board of supervisors. However, the county had before it the question of possible abandonment of the project for many months in advance of the trial date. On March 24, 1965, the board took its first formal action to abandon the project, although this initial move was suspended a few weeks later to permit further negotiation with the Pair Oaks Plying Club for purchase of their interests. On June 2, 1965, this “moratorium” on abandonment was continued for an additional 60 days and it was not until September of 1965 that the board finally confirmed its intention to abandon the entire project.

Meanwhile the case had been pretried on March 10, 1965, and the trial date fixed at July 7, 1965. Thereafter, on June 10, 1965, the court modified its pretrial order to provide that:

“. . . the trial shall then proceed or shall proceed at such later time to which it is reasonably continued by the trial judge. . . .

‘' The purpose of this order is to allow the County of Sacramento sufficient time to take action which may affect the issue of what damages and compensation are to be awarded without penalizing plaintiffs by delaying the trial of the other issues here involved which, in the Court’s view, do not rest on what future action may or may not be taken by the County.”

When finally called for trial on July 12, 1965, the county’s motion for a continuance was denied. There was no abuse of discretion. The county had had several years to prepare for trial. Plaintiffs had many times before filing suit expressed their intention to bring an inverse condemnation suit, and each time they were requested by county officers or county supervisors to defer their suit until the county’s plans were fully developed in order that the county could purchase the property. Plaintiffs had several times acceded to such requests. The county was aware that the previously mentioned inverse condemnation suit involving property similarly situated had been successfully prosecuted. Denial of the motion for continuance was not an abuse of discretion. “The factors

Pursuant to their stated request, the cross-appeal by plaintiffs is dismissed. The judgment is affirmed. Plaintiffs-respondents are to recover costs on appeal.

Pierce, P. J., and Regan, J., concurred.

A petition for a rehearing was denied May 15, 1969.