ELR Citation: ELR 20223
No(s). S.F. 22787 (Cal. Apr 26, 1971)

Section 11546 of California's Business and Professions Code authorizing the governing body of a city or county to require that a subdivider must, as a condition to the approval of a subdivision map, dedicate land for park or recreation purposes or pay a fee in lieu thereof held to be a constitutional exercise of the state's police power. City of Walnut Creek legislation implementing plan also valid. Vanishing open spaces underlie strong public policy argument for cohesive municipal planning. Failure of code to require that a developer be responsible only for facilities necessitated by its subdivision alone does not constitute deprivation of property without due process. Recreational area created must be reasonably near contributing subdivision but need not be for the exclusive use of its inhabitants. Fee in lieu of land contribution does not constitute double taxation on subdivision inhabitants. Municipality may validly charge higher fee for high density subdivision, since more inhabitants create greater need for park and recreational areas for which the municipality is primarily responsible. Municipality need not accept recreational areas voluntarily set aside by developer in lieu of statutory obligations because this would make developer rather than municipality final arbiter of community's park needs.

Counsel for Appellant:
Harold Ring
Ring, Turner & Ring
1437 Broadway
Walnut Creek, CA 94597
(415) 934-0550

Counsel for Appellee:
Daniel J. Curtin, Jr. City Attorney for Walnut Creek
City Hall
Walnut Creek, CA 94596
(415) 935-3300

Counsel for Sierra Club as Amicus Curiae:
Robert A. Thompson
Miller, Groezinger, Pettit & Martin
650 California
San Francisco, CA 94101
(415) 434-1331

Counsel for State of California as Amicus Curiae:
Dennis Smaage Assistant Attorney General
State of California
Sacramento, CA 95813
(415) 495-9555

Chief Justice Wright and Justices McComb, Peters, Tobrinen, Burke and Sullivan concurred.