Auburn Lumber Co. v. City of Auburn

258 Cal. App. 2d 732, 66 Cal. Rptr. 58, 1968 Cal. App. LEXIS 2469

• Court: California Court of Appeal
• Decided: February 8, 1968
• Docket: Civ. 11562
• Status: Published

Opinions

FRIEDMAN, J.

The City of Auburn conducted proceedings for the formation of a parking district under the Vehicle Parking District Law of 1943 (Sts. & Hy. Code, § 31500 et seq.). Petitioner Auburn Lumber Company, a retail building materials merchant, protested inclusion of its business premises. The city council rejected the protest, fixed district boundaries embracing the lumber company’s property and found that all property within these boundaries would be benefited by the project. Auburn Lumber then petitioned for review by mandate in the superior court, which, after considering the evidence before the city council, found substantial evidence to support the council’s finding of benefit. Petitioner appeals from a judgment denying relief.

The Vehicle Parking District Law of 1943 permits the imposition of special assessments on lands within a district to finance the acquisition and construction of off-street parking facilities. After adopting an ordinance describing the boundaries of the district and giving notice of a hearing at which property owners may protest (Sts. & Hy. Code, § 31539), the legislative body may exclude land “which it finds will not be benefited by the doing of the things proposed to be done.” (Ibid., § 31551.) “Any land which in the judgment of the legislative body will not be benefited shall not be included in the district.” (Ibid., § 31556.) After the cost of the parking project is ascertained, it is assessed against the properties within the district ‘1 in proportion to the benefits to be derived . . . (Ibid., § 31623.)

The present suit was filed after the protestant’s property had been included in the district boundaries but before spread of the assessment. In contrast, reported decisions reviewing city council actions under the 1943 law involve lawsuits commenced after formation of the district and after allocation of assessments to the individual properties.¹ The initiation of judicial proceedings before spread of the assessment causes a shift in the focus of judicial review. The decision of the local administrative body will be sustained in court if there is substantial evidence to support it. ² After spread of the assessment the reviewing court has before it the issue of the administrative agency’s compliance with Streets and Highways Code, section 31623, that is, whether there is substantial evidence of an assessment proportionate to benefit.³ Where, as here, the project cost has not been allocated among the individual properties, the issue is one of compliance with sections 31551 and 31556, that is, whether there is substantial evidence of some benefit to the protestant’s property. When the benefit is palpable but relatively small, neither the landowner nor the court may anticipate an individual assessment disproportionate to the benefit.⁴ Under these circumstances substantial evidence of any palpable benefit to the protestant’s property will result in judicial affirmance of the agency’s action.

After the Auburn city council published notice of a hearing, Auburn Lumber Company filed a protest, urging lack of benefit to its property. Facts supporting its protest were described in a verified declaration by one of its officers, supported b;r affidavits of a number of its customers, mostly building contractors. The company contended: (1) An existing city parking lot in close proximity to its property and existing on-street parking spaces were not being used to capacity; (2) the company had parking facilities on its own premises for 78 cars, no more than 50 of which were in use at peak business hours; (3) because the company sold bulky items, its customers could not utilize parking lots at any distance; (4) the exterior boundary of the proposed district bisected the lumber company’s business premises, running down the center of its office and sales floor.⁵

At the city council hearing on September 7, 1965, petitioner’s representatives called attention to the protest and to its factual basis. The council then received an oral statement from Dr. D. Jackson Faustman. Dr. Faustman was one of the individuals retained by the city council to prepare a comprehensive parking and traffic plan for the downtown district of Auburn. The record reveals his background and qualifications only to the extent that he had conducted 75 or 80 parking studies. Dr. Faustman commented on the proposed inclusion of the Auburn Lumber Company’s premises.⁶

Two weeks later, on September 21, 1965, the city council met again to reconsider the proposed district. At the latter session- Dr. Faustman made additional statements. In effect, he declared that he had included property within the proposed boundaries which met two criteria: one, they were zoned for commercial use and two, located within walking distance, that is, within 350 feet, of one of the proposed off-street parking lots. He pointed out that the 350-foot circle included the commercially zoned property owned by the Auburn Lumber Company, but excluded the land it leased from the Southern Pacific Company. He declared that the commercially zoned property of Auburn Lumber Company ‘ ‘ could be put into any type of use which would attract automobiles. ...” At the conclusion of the September 21 session the council adopted a resolution rejecting all protests, including that of petitioner.

Petitioner’s central claim is that Dr. Faustman’s testimony fails to meet the law’s notion of substantial evidence as “reasonable in nature, credible and of solid value,” citing Estate of Teed, 112 Cal.App.2d 638, 644 [247 P.2d 54], It argues that Dr. Faustman did not describe any special benefit whatever to the lumber company’s property, simply expatiating on his own motives and criteria for including property within the district.

The city council action does not rest on Dr. Faustman’s testimony alone. Both opponents and supporters of the project made statements before the council. Some supporting statements emphasized the number and identity of the downtown entrepreneurs who supported the project rather than the enhancement of community and property values. A Mr. Frank Ostrow described activities in other California communities to demonstrate the point that “core area” parking is necessary to meet the competition of suburban shopping centers and to prevent the deterioration of downtown property values.

Regardless of the comparative weight of the competing evidential factors, the record before the city council embodies substantial evidence of palpable benefit to petitioner’s property. The property is within the downtown area of the City of Auburn. Only hinted in the record is the physical configuration of the downtown area, which appears to be situated on a hillside, embracing an “upper town” and “lower town.” The Auburn Lumber Company is situated in the elevated portion of the downtown. Its property is 50 feet to 75 feet laterally distant from an existing city-owned parking lot and 350 feet from one of the proposed parking lots, but at a higher elevation than either. Motorists using these parking facilities would be required to walk up the hill to do business with the lumber company. Nevertheless, there is no question but that petitioner’s property is within downtown Auburn. It is a landowner as well as a merchandiser. The prospect of increased sales volume on its particular business property is not an indispensable ingredient of the benefit which supports a special assessment. The prime ingredient of benefit is an enhancement of the property’s market value in relation to reasonably potential uses as well as present use.⁷ In City of Whittier v. Dixon, 24 Cal.2d 664, 667-668 [151 P.2d 5, 153 A.L.R 956], the court observed that off-street parking places tend to stabilize a business section, benefiting the property in the vicinity and justifying the imposition of special assessments. In Alexander v. Mitchell, 119 Cal.App.2d 816, 827 [260 P.2d 261], the court takes notice of common knowledge that automobile traffic congestion is depressing downtown business and downtown property values in large and small cities. Mr. Ostrow’s testimony before the city council simply echoed these truisms of modern urban development.

Reexamined in the light of these truisms, Dr. Faust-man’s testimony takes on more specific character than appears at first blush. At the September 7 meeting he pointed to the Auburn Lumber Company property “in terms of commercial development,” and as a “large parcel of land now being used for retail purposes, and in the future, in the long run perhaps more extensively used.”⁸ At the September 21 meeting he reiterated the property’s availability for “any type of use which would attract automobiles. ...” So viewed, Dr. Faustman’s testimony supplied substantial evidence from which the city council could find a palpable benefit to petitioner’s land in the form of enhancement of its market value as commercially zoned, downtown property.

Petitioner invokes Safeway Stores, Inc. v. City of Burlingame, supra, 170 Cal.App.2d 637, a parking district case, in which a finding of special benefit to the protestants ’ retail business properties was annulled. There, however, the unrefuted evidence demonstrated a deliberate gerrymandering of district lines, not by the yardstick of benefits but to embrace property owners who would support the project and exclude those who might obstruct it. There is no claim or evidence of gerrymandering here.

Petitioner charges violation of statutory procedures in the city council’s reception of testimony at its meeting of September 21, 1965, following the regularly noticed hearing of September 7. Toward the end of the September 7 hearing one of the eouncilmen proposed a motion as follows: “. . . I would like to move that the hearing be closed and that the consideration of the protests be continued to September 21. ’ ’ The motion was seconded and adopted. At the September 21 council meeting both Dr. Faustman and the city’s bond counsel restated the background of the parking district proposal and their reasoning in laying out the proposed boundaries. Petitioner’s counsel was present but declined to participate on the ground that the continued hearing was illegal.

The parking district statute provides that the publicly noticed hearing “may be continued from time to time by order entered on the minutes.” (Sts. & Hy. Code, § 31552.) Petitioner’s argument takes too much advantage of unfortunate terminology on the part of the councilman who made the motion. Although he literally proposed that the hearing be “closed,” the remainder of his motion gave evidence of an intention to recess or continue the entire proceeding to the later date. That it was so understood is evidenced by the presiding officer’s opening statement at the September 21 meeting: “The next item is the continued meeting in the matter of Vehicle Parking District No. 1. . . .” The September 21 meeting was not a rump or secret session designed for evasion, but a publicly announced continuation of the hearing in substantial compliance with section 31552.

Petitioner assigns error in the trial court’s rejection of an offer to prove that two of the four couneilmen who voted to reject its protest had been active promoters of the parking district. Whatever the merits of this objection, petitioner did not raise it before the city council and is precluded from raising it in court.⁹

Judgment affirmed.

Pierce, P. J., concurred.

1 Yaeger v. City Council of the City of Fullerton, 231 Cal.App.2d 557 [41 Cal.Rptr. 904]; Jenner v. City Council of the City of Covina, 164 Cal.App.2d 490 [331 P.2d 176]. A parking assessment ease arising under another improvement act, Jeffery v. City of Salinas, 232 Cal.App.2d 29 [42 Cal.Rptr. 486], also resulted from a suit filed after the protestant’s property had heen assessed in a specific amount. In Safeway Stores, Inc. v. City of Burlingame, 170 Cal.App.2d 637 [339 P.2d 933], a case arising under the Parking District Law of 1951, the action was filed after inclusion of the protestant’s property within the district but before spread of the assessment. A 1959 amendment requires that an action to review or annul the ordinance declaring formation of the district must be commenced within 60 days of the ordinance’s adoption. (Sts. & Hy. Code, § 31568.1.)

2 Jeffery v. City of Salinas, supra, 232 Cal.App.2d at p. 35; Jenner v. City Council of the City of Covina, supra, 164 Cal.App.2d at p. 497.

3 See Spring Street Co. v. City of Los Angeles, 170 Cal. 24, 31 [148 P. 217, L.R.A. 1918E 197]; Keller v. City of Los Angeles, 123 Cal.App. 99, 105-106 [11 P.2d 448].

4 See Howard Park Co. v. City of Los Angeles, 119 Cal.App.2d 515, 522 [259 P.2d 977].

5 The proposed district included the lumber company’s premises on its own land but excluded part of its premises on land leased from the Southern Pacific Company.

6 Dr. Faustman stated: “In answer to the questions about inclusion of the Auburn Lumber Company, yes, I was the one who made the decision. I would like, however, to take exception to the second part of the statement that was just made here, the fact that they were put in the District because we needed the assessed valuation. I don’t recall that I ever made that particular comment. But my reasons for including portions of the Lumber Company were involved with the fact that the more I looked at the distribution of the several parking facilities, bearing in mind that these facilities are devoted primarily for short-time parkers, not long-time parkers but short-time parkers. I mean, as people come into the central business district for retail, commercial types of activities, medical, dental and the like, these are the types of uses that take the average parker less than two or three hours. The more I looked at this distribution the more I realized how in the world could I exempt properties laying literally adjacent to a parking facility? The Auburn Lumber Company is in the retail business, whether they are selling paint, lumber, bolts or nuts, but they are in the retail business, and certainly in the long run—and after all this is a long-run program. Those bonds, for example, are twenty-year payoff. In the long run, parking conditions in this town will change, as they have in the last ten, fifteen or twenty years. Twenty years ago you had no parking problem. Today you don't have as much as say Sacramento or Los Angeles or San Francisco, but you certainly have a city which is growing. And in the long run, I could not in my own professional judgement exempt a large parcel of land now being used for retail purposes, and in the future, in the more long run perhaps more extensively used. In terms of commercial development, how could we exempt this property from the District ? And I came to the conclusion under these circumstances, no, we could not, and for that reason I changed the boundaries from our very preliminary planning studies Mr. Fraser and I conducted, where we had gone before the Planning Commission. I changed my opinion and included the Auburn Lumber Company, their portions of land in the District. I think that in efíeet was my reasoning behind it. ’ ’

7 Howard Park Co. v. City of Los Angeles, supra, 119 Cal.App.2d at p. 522, cited in Jeffery v. City of Salinas, supra, 232 Cal.App.2d at p. 37, footnote 4. See also Spring Street Co. v. City of Los Angeles, supra, 170 Cal. at p. 30; Safeway Stores, Inc. v. City of Burlingame, supra, 170 Cal.App.2d at p. 645; Lloyd v. City of Redondo Beach, 124 Cal.App. 541, 547 [12 P.2d 1087].

8 Footnote 6, supra.

9 Streets and Highways Code section 31565; Jeffery v. City of Salinas, supra, 232 Cal.App.2d at p. 39. Section 31565 declares: ‘1 Proceedings under this chapter shall not be attacked after the hearing upon any ground not stated in an objection or protest filed pursuant to this chapter. Any landowner or person interested in any land within the district is estopped to attack the proceedings upon any ground not stated in a protest filed by him pursuant to this chapter. ’ ’