6 ELR 20120 | Environmental Law Reporter | copyright © 1976 | All rights reserved

Arastra Limited Partnership v. City of Palo Alto

No. C-72-2305 RHS (401 F. Supp. 962) (N.D. Cal. September 15, 1975)

ELR Digest

The court awards inverse condemnation damages to plaintiffs, a limited partnership which has been prevented from, developing certain land by the defendant city's enactment of open space ordinances. The city repeatedly and publicly indicated its intent to purchase plaintiff's 515 acres, which lie below a city part on a mountain slope. When it appeared that acquisition costs and become prohibitive, the city enacted open space zoning ordinances which effectively, prevented any marketable development of plaintiff's land. These ordinances lacked any factual basis for the protection of public alone be challenged. See Construction Industry Ass'n v. City of Petaluma, 522 F.2d 897, 5 ELR 20519 (9th Cir. 1975). The powers of zoning and condemnation must be carefully differentiated; condemnation is required when a land-owner would otherwise be forced to bear more than his proportional burden of the public undertaking. Holtz v. Superior Court, 3 Cal. 3d 296, 475 P.2d 441, 90 Cal. Rptr. 345 (1970).

Ordinarily, a court will not inquire into legislative motivation. When determining whether legislation is confiscatory, a court will review its factual basis. Until enactment of the open space ordinances, the city at all times planned to purchase the plaintiff's land for park purposes. All steps toward completion of that plan were completed except actual purchase. Since the open space ordinances have only a fictional basis, and are designed solely to prevent development, they constitute inverse condemnation. See, e.g., People v. Southern Pacific Transportation Co., 33 Cal. App. 3d 960, 109 Cal. Rptr. 525 (1973); Washington Market Enterprises v. City of Trenton, N.J. , 343 A.2d 408 (1975). Physical invasion of plaintiff's property is not a prerequisite for such a finding. Plaintiff's damages are the fair market value of the fee title on the effective date of the open space ordinance.

The full text of this opinion is available from ELR (21 pp. $2.75, ELR Order No. C-1013).

Counsel for Plaintiff
Marvin G. Burns
John Petrasich
Fulop, Rolston, Burns & McKittrick
9665 Wilshire Blvd., 7th floor
Beverly Hills, CA 90212
(213) 228-6500

Counsel for Defendant
Robert K. Booth
City Attorney
City Hall
Palo Alto, CA 94301
(415) 329-2171

Fred Caploe
Atkinson, Farasyn, Smith & Caploe
660 W. Dana St., Suite 3
Mountain View, CA 94040
(415) 967-6941

William J. Turner
Ronald Mulcare
Jackson, Turner & Mulcare
180 Park Rd.
Burlingame, CA 94010
(415) 342-6364

Schnake, J.


6 ELR 20120 | Environmental Law Reporter | copyright © 1976 | All rights reserved