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Harman v. City and County of San Francisco

California Court of Appeals, First District, Fourth Division
Oct 21, 1971
20 Cal.App.3d 736 (Cal. Ct. App. 1971)

Opinion

For Opinion on Hearing, see 101 Cal.Rptr. 880, 496 P.2d 1248.

Opinion on pages 736 to 741 omitted

HEARING GRANTED

See 7 Cal.3d 150 for Supreme Court opinion.

[97 Cal.Rptr. 907] John B. Harman, San Francisco, for appellant.


Thomas M. O'Connor, City Atty. of the City and County of San Francisco, Norman Sanford Wolff, Deputy City Atty., San Francisco, for City and County of San Francisco.

Quentin L. Kopp, Thomas M. Di Franco, Kopp & Goldstein, San Francisco, for ITT Continental Baking Co.

Walter A. Dold, George S. Youngling, San Francisco, for Shriners Hospitals for Crippled Children.

Thos. F. Stack, San Francisco, for St. Mary's Hospital and Medical Center.

Hanson, Bridgett, Marcus & Jenkins, William J. Bush, San Francisco, for Pacific Medical Center, Inc.

[20 Cal.App.3d 738] CHRISTIAN, Associate Justice.

June Harman appeals from a judgment dismissing an action in which she, as a [97 Cal.Rptr. 908] taxpayer, asserted the invalidity of proceedings by which respondent City and County of San Francisco sold, or has agreed to sell, portions of certain former street areas to the owners of lands abutting the abandoned streets. The complaint was dismissed after the court had sustained, without leave to amend, respondents' general demurrers.

Appellant alleges that the city closed the several streets in question pursuant to the Street Vacation Act of 1941 (Streets and Highways Code, § 8300, et seq.); it is not contended that the proceedings leading to the closure of the streets were in any way defective. Appellant's theory is that, although the streets were validly closed, the ensuing sales were voidable as failing to conform to section 92 of the city charter. That enactment permits sales of cityowned real property (except parks and squares) either at public auction or privately. Any private sale must be for a price 'at least 90 per cent of the preliminary appraisal.'

§ 92. 'Any real property owned by the City and County, excepting lands for parks and squares, may be sold on the recommendation of the officer, board or commission in charge of the department responsible for the administration of such property. When the Board of Supervisors, by ordinance, may authorize such sale and determine that the public interest or necessity demands, or will not be inconvenienced by such sale, the Director of Property shall make a preliminary appraisal of the value of such property. The Director of Property shall advertise by publication the time and place of such proposed sale. He shall forthwith report to the department head concerned and to the supervisors the amount of any and all tenders received by him. The supervisors may authorize the acceptance of the highest and best tender, or they may, by ordinance, direct that such property be sold at public auction, date of which shall be fixed in the ordinance. No sale other than a sale at public auction shall be authorized by the supervisors unless the sum offered shall be at least 90 per cent of the preliminary appraisal of such property hereinbefore referred to.'

Respondents first contend that the charter provision has no application because a sale of property upon vacation of a street is generally governed by Streets and Highways Code section 960.4. That statute expressly gives affected boards of supervisors broad discretionary power to set the terms and conditions for the sales or exchanges of property no longer needed for street purposes. Respondents point out that acts of a board of supervisors, under section 960.4, are legislative; a taxpayer could only overturn the board's determination upon a showing of bad faith, fraud, arbitrary action, or abuse of power. (Burns v. American Casualty Co. (1954) 127 Cal.App.2d 198, 27 6, 273 P.2d 605; see also Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 24, 51 Cal.Rptr. 881, 415 P.2d 769; Wehrle v. Board of W. & P. Commrs. of Los Angeles (1930) 211 Cal. 70, 73, 293, P. 67.) But respondents' argument that section 960.4 applies cannot be reconciled with section 92 of the Charter of the City and County of San Francisco. Section 92 applies to '[a]ny real property owned by the City * * * excepting lands for parks and squares, * * *' Property owned by the city upon vacation of a street is not land 'for parks and squares'; therefore it comes within the general requirement of section 92.

Section 960.4 provides: 'Whenever the board of supervisors determines that any real property or interest therein, heretofore or hereafter acquired by the county for highway purposes, is no longer necessary for such purposes, the county may sell or exchange such real property or interest therein in the manner and upon the terms and conditions approved by the board of supervisors. * * * '

It must be concluded that section 92 of the city charter prevails over Streets and Highways Code section 960.4. Once a city charter has been ratified by the voters and approved by the Legislature, it becomes the organic law of the city and supersedes all laws inconsistent therewith. (Cal.Const., art. XI, § 8, subd. (g).) 'It is settled that local rules or regulations as to matters which a county is constitutionally empowered to regulate by charter supersede [97 Cal.Rptr. 909] general state laws on the subject, except as to matters of statewide concern where the state has occupied the field.' (Pearson v. County of Los Angeles (1957) 49 Cal.2d 523, 535, 319 P.2d 624, 631.) In determining whether the state has occupied the field, the statute must be analyzed and the facts and circumstances upon which it was intended to operate considered. (Wilson v. Beville (1957) 47 Cal.2d 852, 859, 306 P.2d 789.) Streets and Highways Code section 960.4 provides that whenever the board determines that property used for street purposes is no longer necessary for such purposes, it may sell or exchange such in the manner and upon terms and conditions provided by the board. That language indicates no intention to occupy the field; on the contrary, it suggests that the manner of disposition of such property is a matter of local interest and is therefore to be accomplished in the manner deemed appropriate by the board. Therefore a charter provision which regulates the manner of disposition of property after a street has been vacated would control and limit the discretionary power of boards of supervisors under the general state statute. (See Silver v. City of Los Angeles (1961) 57 Cal.2d 39, 17 Cal.Rptr. 379, 366 P.2d 651; see also Streets and Highways Code, § 900 [wherein it is provided that the authority conferred on the board by the act (including section 960.4) shall be exercised subject to such limitations and restriction prescribed by the act or by other provisions of law].)

Respondents more persuasively argue that, even if City Charter section 92 is held to be applicable, the complaint is defective in that it does not allege facts showing noncompliance with section 92. The complaint does not allege that there was a public auction; hence the crucial provision of the charter is that which authorizes private sales only where the price is 'at least 90 percent of the preliminary appraisal.' The complaint did rather vaguely allege that 'Defendant City and defendant Rezos have set and determined the value of each street or portion of a street, pursuant to the direction of Defendant Board, and after making such a determination of value gave, granted, and allowed to each person acquiring title to such street or portion thereof from defendant City a sum equal to 50% of the true value thereof to said abutting owners as compensation for rights of ingress and egress over and upon the property vacated and ordered sold.' But there is no allegation as to whether the 'preliminary appraisal,' mentioned in section 92, was completed, according to appellant's theory, before or after the 50 percent reduction attributed to private easements held by the owners of land abutting the vacated streets. Appellant has never, either here or in the trial court, sought to remedy this deficiency by amendment. (Compare Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 75 Cal.Rptr. 766, 451 P.2d 406.) It was appropriate to resolve the ambiguity against appellant where, in the complaint itself and in her briefs on appeal, appellant relies on the theory that, as a matter of law, the abutting owners' easement rights should have been assigned no value in arriving at a 'preliminary appraisal.' That claim would be illogical unless a concomitant implication be accepted, i. e., that the 'preliminary appraisal' was the figure remaining after the 50 percent reduction on account of easements. So construed, the complaint amounts to no more than an attack on the appraisal theory of the City Director of Property. Of course the amount of reduced value to be attributed to any valid encumbrances in appraising a property would be a discretionary matter not subject to review in a taxpayer's suit.

Appellant's theory is that because the purchasers allegedly had no actual intention to make use of their easements, intending rather to build upon the property, the easements should have been disregarded in arriving at a fair market value. But questions of fair market value are not concluded by circumstances affecting the unique motives of a particular purchaser. An owner of land abutting an area formerly open to the public as a street enjoys 'certain private rights which arise from his ownership of property contiguous to [97 Cal.Rptr. 910] the highway, and which are not common to the public generally; * * *.' (People v. Ricciardi (1943) 23 Cal.2d 390, 397, 144 P.2d 799, 803.) These private rights are not cut off by street abatement proceedings. (Neff v. Ernst (1957) 48 Cal.2d 628, 636, 311 P.2d 849.) If a party who was not an abutting owner purchased land on which a street had existed, he would take title subject to the power of the abutting owners to enforce rights of ingress and egress. Obviously, the market value of property would be affected by the knowledge of prospective purchasers that any effort to develop or profitably use the purchased street area might be frustrated entirely.

These circumstances, all of which appear from the face of appellant's complaint, are inconsistent with any theory that the price was determined as a result of 'fraud, collusion, ultra vires, or a failure on the part of the governmental body to perform a duty specifically enjoined' (Silver v. City of Los Angeles, supra, 57 Cal.2d 39, 40, 17 Cal.Rptr. 379, 380, 366 P.2d 651, 652) such as could support a taxpayer's action.

The judgment of dismissal is affirmed.

DEVINE, P. J., and RATTIGAN, J., concur.


Summaries of

Harman v. City and County of San Francisco

California Court of Appeals, First District, Fourth Division
Oct 21, 1971
20 Cal.App.3d 736 (Cal. Ct. App. 1971)
Case details for

Harman v. City and County of San Francisco

Case Details

Full title:June HARMAN, Plaintiff and Appellant v. CITY AND COUNTY OF SAN FRANCISCO…

Court:California Court of Appeals, First District, Fourth Division

Date published: Oct 21, 1971

Citations

20 Cal.App.3d 736 (Cal. Ct. App. 1971)
97 Cal. Rptr. 906

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