Hirsch v. City of Mountain View

Opinion

This is an appeal from a summary judgment granted in favor of defendant City of Mountain View and against plaintiffs Robert Hirsch and Central Park Apartments and from the judgment entered in favor of defendant.

The complaint alleges that Hirsch is a general partner in the partnership known as Central Park Apartments; that he is the owner of real property commonly known as 90 Sierra Vista Avenue, Mountain View; that said property consists of six contiguous parcels; that in January of 1972 Hirsch filed a planned community application seeking permission to utilize the six parcels as a single parcel for the development of a senior citizens apartment house complex and submitted a proposed minor subdivision map as required by defendant city’s planning commission; that defendant, as a condition of approval of the application and the minor subdivision map, required that plaintiffs pay a

Defendant filed an answer which alleges that the fee in question was imposed under its authority as a charter city pursuant to its police power and its dealing with a municipal affair. Thereafter each of the parties filed a motion for summary judgment. The motion of plaintiffs was denied; that of defendant was granted; and judgment was entered in favor of defendant.

The facts as presented by the respective motions for summary judgment disclose that the parties are essentially in agreement as to the pertinent facts. The question whether triable issues are presented is therefore solely a question of law. (Wilson v. Wilson, 54 Cal.2d 264 , 269 [ 5 Cal.Rptr. 317 , 352 P.2d 725 ]; Nelson v. United States Fire Ins. Co., 259 Cal.App.2d 248 , 251 [ 66 Cal.Rptr. 115 ].)

The undisputed facts are as follows: In Januaiy of 1972 plaintiffs filed an application with defendant for a variance, and for approval of a site plan and architectural review to permit construction of a 149-unit apartment complex on real property commonly known as 90 Sierra Vista Avenue, Mountain View. At the time of the application, the property consisted of six separate parcels which had been created by the subdivision map of Ora Loma Acres, which was recorded in the Official Records of Santa Clara County on July 24, 1930. The zoning for the property in question at the time of the application was R3-2.2. The zoning ordinances of defendant city imposed certain yard requirements on developments in the R3-2.2 zone which required that construction be set back certain designated distances from the lot lines of each parcel and that there be front, side and rear yards for each parcel. The development proposed by plaintiffs did not comply with these requirements and in fact the proposed structures encroached directly upon the existing lot lines. The proposed project could not meet the property development standard for density of the R3-2.2 zone unless it were a single development on a single parcel (the size of the six parcels combined).

On April 11, 1972, the zoning administrator conditionally approved the project on the condition that a parcel map (referred to as a minor

The issue presented is whether defendant city had the authority to assess the park and recreation fee in question. Plaintiffs contend that such fees may not be assessed for a land development in which land is not divided or subdivided and that prior to 1973 defendant was without authority to assess such fees for a development of land less than a subdivision.

We consider, first, whether defendant had the authority prior to 1973 to enact an ordinance which would allow the assessment of such fees. Prior to March 7, 1973, former section 11546 of the Business and Professions Code (now Gov. Code, § 66477) provided, in pertinent part, as follows: “The governing body of a city or county may by ordinance 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 . . . .” The word “subdivision” was then defined as a division of land into five or more parcels. (Former Bus. & Prof. Code, § 11535, subd. (a), now Gov. Code, §§ 66424 and 66426.) Effective March 7, 1973, former section 11546 of the Business and Professions Code was amended, so as to provide that “The governing body of a city or county may by ordinance 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 or parcel map for a division of land not defined as a subdivision,...” (Italics added.)

In Codding Enterprises v. City of Merced, 42 Cal.App.3d 375 [ 116 Cal.Rptr. 730 ], the appellant was the owner of a five-acre parcel which was zoned for the construction of 107 apartment units. In October of 1972 the appellant sold the five-acre parcel to a third party, but before

In Codding the ordinances providing for the assessment of the fees were enacted, as is the case here, prior to the amendment to former section 11546 of the Business and Professions Code which became effective on March 7, 1973. The reviewing court concluded that the amendment was adopted because the Legislature realized that it had inadvertently not authorized general law cities to regulate within its boundaries lot splits or any property division less than a subdivision. It held, however, that because the City of Merced is a charter city which derives its authority or power from the Constitution of the State of California (art. XI, § 5), rather than a general law city which derives its authority from the Legislature, the City of Merced had authority over municipal affairs so long as its ordinances do not conflict with the federal Constitution, the state Constitution, or the provisions of its own charter. (42 Cal.App.3d at p. 377.) The court, observing that “There would not seem to be much question but that regulation of land use, particularly in relation to multi-unit housing which results in population saturation, vehicular congestion and elimination of open space for park and recreation areas, is of vital concern to a municipality” (at p. 378), held that the levy of the fee was a municipal affair and that the Legislature had not preempted the authority of a charter city to control land development within its boundaries except as to subdivisions. (At p. 378.)

Defendant city is a charter city and therefore the rationale and holding of the Codding case is applicable here. Because the Legislature did not preempt the field of the control of land development defendant could, in 1972, impose a park or recreation fee as a condition for approval of a map creating less than five parcels.

Plaintiffs argue that we should follow Santa Clara County Contractors etc. Assn. v. City of Santa Clara, 232 Cal.App.2d 564 [ 43 Cal.Rptr. 86 ]. Santa Clara held that a charter city could not impose a recreation fee as

We observe, moreover, that because the property under consideration consisted of six separate parcels which had been created by the subdivision map duly recorded in 1930 it was necessaiy under the ordinance that plaintiffs file a parcel map in order to effect the consolidation of the parcels. Section 28.21 of the ordinance provides that “As a condition of approval of a final subdivision map the subdivider shall dedicate land, pay a fee in lieu thereof, or both, at the option of the city, for park or recreational purposes . . . .” As already indicated the term “subdivision map” under the ordinance includes within its meaning the term “parcel map.” Accordingly, because defendant, in the exercise of its powers over municipal affairs as a charter city, could properly require plaintiffs to file a parcel map in order to consolidate the six parcels into one parcel for the purpose of constructing the apartment complex, defendant could assess a park and recreation fee as a condition for the approval of the parcel map. (See Codding Enterprises v. City of Merced, supra, 42 Cal.App.3d 375 , 377-378, and see Associated Home Builders etc., Inc. v. City of Walnut Creek, 4 Cal.3d 633 , 637-638 [ 94 Cal.Rptr. 630 , 484 P.2d 606 , 43 A.L.R.3d 847 ].)

The foregoing discussion makes it unnecessary to consider defendant’s contention that plaintiffs are estopped from raising the validity of the requirement that they file a parcel map because they have not exhausted their administrative remedies and because they accepted the benefits of the parcel map.

The judgment is affirmed.

Sims, J., and Elkington, J., concurred.