Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura No. SC 048687, Thomas J. Hutchins, Judge
(Retired judge of the Ventura S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Law Office of K. M. Neiswender and Kate M. Neiswender for Plaintiffs and Appellants.
Burke, Williams & Sorensen and Alan A. Sozio for Defendant and Respondent.
PERREN, J.
4X Projects Co. and Richard Gray appeal the dismissal of their first amended petition for writ of mandate after the trial court sustained the demurrer of respondent City of Moorpark (City) without leave to amend. The petition challenges the facial validity of parking regulations adopted to increase parking in a commercial area of the City. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Appellants own property on High Street, an historic commercial area of the City. Prior to adoption of the regulations challenged here, the City required businesses on High Street to provide only 50 percent of the parking spaces required of businesses in other areas of the City.
On October 5, 2005, the City Council enacted an urgency ordinance establishing a moratorium on all construction on High Street. The moratorium was extended through December 7, 2006. The reason for the moratorium was the lack of sufficient parking on High Street and the need to change the City's general and specific plans and development standards to remedy the problem.
We grant the City's request to take judicial notice of City Ordinance Nos. 343 and 353 and sections 17.44.040 and 17.44.090 of the Moorpark Municipal Code.
On October 18, 2006, the City adopted Ordinance No. 353 ("Ordinance") approving new parking regulations for High Street. The ordinance required all new construction and remodels to provide 75 percent of the parking spaces required for similar businesses in other areas of the City. Alternatively, the property owner can choose to provide only 50 percent of the parking spaces required for similar businesses in the City and pay a fee established by the City Council to offset a portion of the cost required to construct public parking facilities in the downtown area. The Ordinance also provided that all driveways constructed on High Street shall provide "reciprocal" vehicular access to all parking spaces provided above the 75 percent standard which could be designated as reserved parking, and all spaces, including reserved spaces, become reciprocal after 6:00 p.m.
The parties have not argued that "reciprocal" as used in the Ordinance has a special meaning. Therefore we give it its usual meaning as "mutual" or "bilateral." (Black's Law Dict. (8th ed. 2004) p. 1297.)
On June 27, 2007, 4X filed a first amended petition for writ of mandate under Code of Civil Procedure section 1085 alleging the Ordinance was facially invalid because it constituted a taking of private property without just compensation. The petition asserts the Ordinance is unconstitutional because it interferes with 4X's right to exclude others from its property, a fundamental property right protected by the Fifth and Fourteenth Amendments to the United States Constitution.
The trial court sustained the City's demurrer to the petition without leave to amend on the ground that the Ordinance was a valid exercise of the City's police power and 4X had failed to exhaust its administrative remedies.
As framed by appellants, the only issue on appeal is: "Does the City's Ordinance, forcing landowners to provide, maintain, and suffer liability for a public parking lot as a condition of development or remodeling of private property, violate the Constitutional mandates against a taking without just compensation?" We conclude that it does not.
DISCUSSION
Standard of Review
"When reviewing an order sustaining a demurrer, we review the trial court's ruling de novo, exercising our independent judgment to determine whether the complaint states a cause of action under any legal theory. [Citation.] We accept as true the properly pleaded allegations of facts in the complaint, but not the contentions, deductions or conclusions of fact or law. [Citation.]" (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 788.)
A challenge to the facial validity of an ordinance is reviewed de novo. (Palos Verdes Shores Mobile Estates, Ltd. v. City of Los Angeles (1983) 142 Cal.App.3d 362, 368.) All presumptions favor the validity of an ordinance. The court may not declare it invalid unless it is clearly so. (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 814-815.)
The Parking Regulations
The Ordinance states in part: "Parking in the High Street area . . . shall meet seventy-five percent (75%) of the required parking pursuant to Section 17.32.010 of this chapter. In lieu of meeting the required parking, the applicant may pay a fee to reduce the required on-site parking to fifty percent (50%) of the required parking pursuant to Section 17.32.010. The fee shall be established by city council resolution and shall be used to offset a portion of the cost required to construct public parking facilities in the downtown area.
"Driveways installed on High Street shall provide reciprocal vehicular access to the parking area. All parking spaces provided above the seventy-five percent (75%) standard may be designated as reserved parking. Reserved spaces become reciprocal after 6:00 p.m. so that those spaces are available for off-peak parking."
Section 17.32.010 contains the number of parking spaces required for specified new uses and enlargement of existing uses in the City.
Applicable Legal Principles
Both state and federal Constitutions guarantee real property owners just compensation when their land is taken for a public use. (Cal. Const., art. I, § 19; U.S. Const., Fifth Amend.) The California Constitution also requires just compensation when private property is "damaged for a public use." (Cal. Const., art. I, § 19.) "By virtue of including 'damage[]' to property as well as its 'tak[ing],' the California clause 'protects a somewhat broader range of property values' than does the corresponding federal provision." (San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 664.)
When the government physically takes possession of an interest in property or authorizes a physical invasion of property by a third party for a public purpose, the United States Supreme Court has indicated the government has a "categorical duty" to compensate the owner for a taking. (Brown v. Legal Foundation of Washington (2003) 538 U.S. 216, 233.) This per se rule recognizes an owner's right to exclude others as "one of the most essential sticks in the bundle of rights that are commonly characterized as property." (Kaiser Aetna v. United States (1979) 444 U.S. 164, 176.) A continuous right to traverse property is a physical occupation of property for purposes of this rule. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 13; Nollan v. California Coastal Com'n (1987) 483 U.S. 825, 832.)
"A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.] '"To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions."' [Citations.]" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)
The Ordinance Is Facially Valid
"A claimant who advances a facial challenge faces an 'uphill battle.' [Citation.] '"A claim that a regulation is facially invalid is only tenable if the terms of the regulation will not permit those who administer it to avoid an unconstitutional application to the complaining parties."' [Citations.] This is because a facial challenge is predicated on the theory that 'the mere enactment of the . . . ordinance worked a taking of plaintiff's property . . . .'" (Home Builders Ass'n of Northern California v. City of Napa (2001) 90 Cal.App.4th 188, 194.)
In support of their argument that the Ordinance is facially unconstitutional, appellants cite numerous United States Supreme Court cases which have no application here. The most apposite case, cited by neither party, is Yee v. City of Escondido (1992) 503 U.S. 519, in which the Supreme Court rejected an argument substantially similar to that made by appellants. In Yee, a mobilehome park owner challenged portions of the California Mobilehome Residency Law that limited a park owner's ability to evict a mobilehome owner from the park. The park owner argued that the regulations affected a physical taking of property because the regulations made a mobilehome owner a perpetual tenant of the park and transferred a discrete interest in land—the right to occupy the land indefinitely at submarket rent—from the park owner to the mobilehome owners. The park owner contended that what had been transferred was a right of physical occupation of the park owner's land.
(Kaiser Aetna v. United States, supra, 444 U.S. 164; Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419; Nollan v. California Coastal Com'n, supra, 483 U.S. 825; Dolan v. City of Tigard (1994) 512 U.S. 374.)
In rejecting the argument that a physical invasion of property occurred when the regulations were adopted, the Supreme Court said: "This argument, while perhaps within the scope of our regulatory taking cases, cannot be squared easily with our cases on physical takings. The government effects a physical taking only where it requires the landowner to submit to the physical occupation of his land. 'This element of required acquiescence is at the heart of the concept of occupation.' [Citation.] Thus whether the government floods a landowner's property [citation], or does no more than require the landowner to suffer the installation of a cable [citation], the Takings Clause requires compensation if the government authorizes a compelled physical invasion of property." (Yee v. City of Escondido, supra, 503 U.S. at p. 527.) However "[b]ecause they voluntarily open their property to occupation by others, petitioners cannot assert a per se right to compensation based on their inability to exclude particular individuals." (Id., at p. 531.)
Like the regulations challenged in Yee, the Ordinance merely regulates appellants' use of their land. By its terms, the Ordinance will apply to appellants' property only if they choose to change or enlarge the existing use of the property. It does not require appellants to submit to the physical occupation of their land. Appellants can continue the current use of their property without ever becoming subject to the Ordinance. If appellants choose to redevelop their property without complying with the Ordinance, they may apply to the City for a variance and, upon a proper showing, may be exempt from the Ordinance. (Gov. Code, §§ 65906, 65906.5; Moorpark Mun. Code, §§ 17.44.040, 17.44.090.) As explained by the court in Del Oro Hills v. City of Oceanside (1995) 31 Cal.App.4th 1060, 1076: "[A]n ordinance is safe from a facial challenge if it preserves, through a permit procedure or otherwise, some economically viable use of the property. [Citation.] In such a case, administrative remedies must be pursued if available because the challenge is actually an 'as-applied' one. [Citation.]"
Appellants disparage the utility of the variance procedure arguing "Planning Commissions and City Council members are human; they have friends, they have biases. There is nothing to prevent use of the variance procedure to benefit those who are 'friendly' to the City, and to punish those who have . . . sued the City." This argument is wholly without merit. "When an ordinance contains provisions that allow for administrative relief, we must presume the implementing authorities will exercise their authority in conformity with the Constitution." (Home Builders Ass'n of Northern California v. City of Napa, supra, 90 Cal.App.4th at p. 199; see also Evid. Code, § 664 [presumption that official duty is regularly performed].)
The Ordinance does not authorize an unwanted physical occupation of appellants' property. It is a regulation of appellants' use of their property, and thus does not amount to a per se taking. Any challenge to the Ordinance as applied must, of course, await a decision on appellants' permit application and exhaustion of administrative remedies.
The judgment is affirmed. Respondent is to recover costs.
We concur: YEGAN, Acting P.J., COFFEE, J.