Untitled California Attorney General Opinion

Opinion

OFFICE OF THE ATTORNEY GENERAL

State of California

JOHN K. VAN DE KAMP

Attorney General

______________________________________

OPINION :

: No. 89-803

of :

: MAY 3, 1990

JOHN K. VAN DE KAMP :

Attorney General :

:

RONALD M. WEISKOPF :

Deputy Attorney General :

:

__________________________________________________________________

THE HONORABLE DOUGLAS C. HOLLAND, CITY PROSECUTOR, CITY

OF BURBANK has requested an opinion on the following question:

Is a section of highway more than 300 feet long, fronted

on both sides entirely by businesses which do not have vehicular

access to the highway by driveways or alleys, in "a business

district" within the meaning of Vehicle Code section 22102 which

prohibits U-turns in business districts except at intersections?

CONCLUSION

A section of highway more than 300 feet long that is

fronted on both sides entirely by businesses which do not have

vehicular access to the highway by driveways or alleys, is not in

"a business district" within the meaning of section 22102 of the

Vehicle Code.

ANALYSIS

This opinion discusses the legality of making U-turns on

a certain type of highway. Section 22102 of the Vehicle Code

generally prohibits the making of U-turns in "business districts."1

A "business district" is defined in section 235 as a portion of a

highway where fifty percent of the contiguously fronting property

on both sides for 300 feet is occupied by business buildings. But

subdivision (d) of section 240 provides that a highway or portion

1 Further references to sections of the Vehicle Code will be by

section number only, and all unidentified statutory references

herein should be understood to be to that Code.

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of a highway shall not be deemed to be within a business district

if there is no right of access to the highway by vehicles from the

contiguous property.2

We are asked whether a section of highway that is more

than 300 feet long and is fronted on both sides entirely by

businesses is to be considered a "business district" within the

meaning of section 22102 if the contiguous business properties do

not provide vehicular access to the highway by driveways or alleys.

We conclude that it is not.

Our primary task in answering the question presented is

to ascertain the intention of the Legislature: Did the Legislature

consider such a stretch of highway to be a "business district" for

the purpose of specifically prohibiting U-turns in it under section

22102? (Cf., Sand v. Superior Court (1983) 34 Cal.3d 567, 570;

Great Lakes Properties, Inc v. City of El Segundo (1977) 19 Cal.3d

152, 153; Select Base Materials v. Board of Equalization (1959) 51

Cal.2d 640, 645.) To ascertain that intention we turn first to the

words of the statutes involved. (People v. Stockton Pregnancy

Control Medical Clinic, Inc. (1988) 203 Cal.App.3d 225, 235; Moyer

v. Workmen's Compensation Appeals Board (1973) 10 Cal.3d 222, 230;

Steilberg v. Lackner (1977) 69 Cal.App.3d 780, 785; Rich v. State

Board of Optometry (1965) 235 Cal.App.2d 591, 604.)

Section 22102 provides as follows:

"No person in a business district shall make a U-

turn, except at an intersection, or on a divided highway

where an opening has been provided in accordance with

Section 21651."

Sections 100 through 680 provide definitions for various

words and phrases used in the Vehicle Code. Section 100 provides

that "unless the provision or context otherwise requires, these

definitions shall govern the construction of [the] Code." The term

"business district" is defined in section 235 as follows:

"A `business district' is that portion of a highway

and the property contiguous thereto (a) upon one side of

which highway, for a distance of 600 feet, 50 percent or

more of the contiguous property fronting thereon is

occupied by buildings in use for business, or (b) upon

both sides of which highway, collectively, for a distance

of 300 feet, 50 percent or more of the contiguous

property fronting thereon is so occupied. A business

2 The term "highway" is generic; section 360 defines it as "a

way or place of whatever nature, publicly maintained and open to

the use of the public for purposes of vehicular travel. Highway

includes street."

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district may be longer than the distances specified in

this section if the above ratio of buildings in use for

business to the length of the highway exists."

Under the section, "the occupancy of the land is the determining

factor in fixing the character of the district. The required

number of buildings used for business purposes in a given distance

is sufficient for the establishment of a `business district'."

(Adrian v. Guyette (1936) 14 Cal.App.2d 493, 502, interpreting

former § 28½, subdivision (a) of the Vehicle Act as amended in

1929, a precursor to § 235; see also, Newton v. Thomas (1955) 137

Cal.App.2d 748, 758-760, 763.) The portion of highway described in

our question would clearly be within a business district, as

defined in section 235, because it is more than 300 feet long and

the contiguously fronting property on both sides is occupied

entirely by businesses.

However, the basic definition of "business district"

found in section 235 is qualified by section 240 which provides as

follows:

"In determining whether a highway is within a

business or residence district, the following limitations

shall apply and shall qualify the definitions in Sections

235 and 515[3]:

"(a) No building shall be regarded unless its

entrance faces the highway and the front of the building

is within 75 feet of the roadway.

"(b) Where a highway is physically divided into two

or more roadways only those buildings facing each roadway

separately shall be regarded for the purpose of

determining whether the roadway is within a district.

"(c) All churches, apartments, hotels, multiple

dwelling houses, clubs, and public buildings, other than

schools, shall be deemed to be business structures.

"(d) A highway or portion of a highway shall not be

deemed to be within a district regardless of the number

3 Section 515 provides the definition of "residence district"

in much the same way as section 235 defines "business district," to

wit, by the number and type of occupancies (dwelling houses or

business structures) of contiguously fronting properties over a

specified distance (¼ mile). Section 22103 prohibits the making of

U-turns in residence districts when another vehicle is approaching

from either direction within 200 feet, except at an intersection

where the approaching vehicle is controlled by an official traffic

control device.

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of buildings upon the contiguous property if here is no

right of access to the highway by vehicles from the

contiguous property." (Emphases added.)

Section 240 derives almost verbatim from the addition of

section 90.1 to the Vehicle Code of 1935, in 1939. (Stats. 1939,

ch. 658, p. 2106, § 1.)4 That addition dramatically changed the

legislative definition of business district that was then found in

section 89 of the Vehicle Code. (It also dramatically changed the

parallel legislative definition of residence district that was

found in section 90 of the Code.)5

Exactly like section 235 today, section 89 of the Vehicle

Code of 1935 predicated whether an area is a business district on

the number of business buildings contiguously fronting upon a

highway passing through it. (Cf., Newton v. Thomas, supra, 137

Cal.App.2d at 758-760, 763; Adrian v. Guyette, supra, 14 Cal.App.2d

at 502-503.) But subdivision (d) of section 90.1, which is

essentially the same as subdivision (d) of section 240 as it

appears today, now added a second step to the definitional process

which had the effect of largely abandoning the nature of the

occupancy of the land as the determining factor in fixing the

character of the district. By stating with plain reference to

4 As added, the new section 90.1 read: "Limitations in

Determining Business and Residence Districts. In determining

whether a highway is within a business or residence district, the

following limitations shall apply and shall qualify the definitions

in sections 89 [defining business district] and 90 [defining

residence district]: .... (d) A highway or portion of a highway

shall not be deemed to be within a business or residence district

regardless of the number of buildings upon the contiguous property

when there is no right of access to the highway by vehicles from

the contiguous property."

5 Section 89 defined "business district" as section 235 does

today (Stats. 1935, ch. 27, p. 99, § 89) and section 90 of the

Vehicle Code of 1935 defined the term "residence district" as

section 515 does today (id., § 90; cf., fn. 3, ante.) From a

historical prospective it is noted that although those definitions

derived directly from section 28½ of the Vehicle Code as amended in

1929 (Stats. 1929, ch. 253, p. 510, § 7), they have been defined in

California law since at least 1913. (E.g., Stats. 1913, ch. 326,

p. 639, § 1(5) ["business district" shall mean the territory of any

county or incorporated city and county, city or town, contiguous to

public highway, which is at that point mainly built up with

structures devoted to business"]); see also Stats. 1905, ch. DCXII,

p. 816, § 1, subd. (1.)(3) ["`closely built up' shall mean (a) the

territory of any county or incorporated city and county, city or

town contiguous to a public highway which is at that point built up

with structures devoted to business."].)

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section 89 that "[a] highway shall not be deemed to be within a

[business] district", it removed from being a business district, as

defined in section 89, an area "when there is no right of access to

[a] highway by vehicles from the contiguous property", "regardless

of the number of buildings [or their character] upon the contiguous

property." In other words, an area where there was "no right of

access to the highway by vehicles from the contiguous property" was

not to be considered a business district (for purposes of the

Vehicle Code), regardless of the character of the occupancies of

the buildings fronting on the highway. The subdivision thus

provided a nigh absolute determinant of when a highway was not to

be considered as being within a business district.

In Newton v. Thomas, supra, 137 Cal.App.2d 748, the court

said that the purpose for the enactment of section 90.1 was "to

provide safety in the use of vehicles in areas where there is a

great deal of turning, slowing and congestion." ( Id. at 759.)

Indeed, the court held that it did not matter whether access to a

building from a highway was by a driveway from the highway to a

side entrance rather than its front because the salient fact

remained that "[t]he traffic and congestion which the section has

in mind would be equally great under the one condition as the

other." (Id. at 760.)

From this we can understand why section 90.1 limited the

basic definition of "business district" that was provided by

section 89. Generally speaking, in such districts "considerable

congestion of vehicular traffic and pedestrians is to be expected"

and so, in order to provide for the "safety of the traveling and

pedestrian public", the Legislature imposed restrictions on the

speed and movement of vehicles in them. (Adrian v. Guyette, supra,

14 Cal.App.2d at 503-504; see e.g., § 22101, supra.) But

subdivision (d) of section 90.1 recognized that where "there is no

right of access to [a] highway by vehicles from ... contiguous

property" there can be no increase in traffic and congestion to and

from the highway with its attendant danger, to warrant restrictions

on speed and movement of vehicles which would otherwise be

necessary. Accordingly, in that situation, "regardless of the

number of [business] buildings upon the contiguous property", the

subdivision discounted a highway as being within a "business

district" so as not to trigger other sections of the Vehicle Code

which would then invoke the application of those restrictions, such

as the one prohibiting U-turns. (Cf., Butigan v. Yellow Cab Co.

(1958) 49 Cal.2d 652, 656.)6

6 It should also be noted that where contiguous properties do

provide access to a highway, a means is available for motorists to

reverse their direction of travel without making a U-turn on the

highway. They can drive into the driveway and back out again to go

in the opposite direction. (See Butigan v. Yellow Cab Co., supra,

49 Cal.2d 652, 656.)

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Like its predecessor, subdivision (d) of section 240

plainly states with reference to section 235 that "[a] highway or

portion of highway shall not be deemed to be within a [business]

district regardless of the number of [business] buildings on the

contiguous property if there is no right of access to the highway

by vehicles from the contiguous property." The subdivision thus

continues to set that qualification as an absolute determinant of

when a stretch of highway shall not be considered to be within a

business district.

Property contiguous to a highway "means the territory

with its land lying along and adjoining [it]." (Adrian v. Guyette,

supra, 14 Cal.App.2d at 502.) We interpret the "right of access by

vehicles" to mean the existence of a path between the highway and

the contiguous property of sufficient width to permit the passage

of motor vehicles without obstruction (such as curbs, fences or

walls), except those placed by the owner or those in lawful

possession of the contiguous property to control vehicular access

(such as gates or doors) to the property. Thus under subdivision

(d) of section 240, a street in a city block between intersections

which is bounded on both sides by curbs uninterrupted by any space

designed to permit vehicular crossings cannot be in a business

district as defined in the Vehicle Code regardless of how many

businesses may be in the buildings fronting such street.

We therefore conclude that a section of highway more than

300 feet long, that is fronted on both sides entirely by businesses

which do not provide vehicular access to the highway by driveways

or alleys, is not within a "business district" for purposes of

Vehicle Code section 22102. If local authorities wish to prohibit

the making of U-turns in such areas, they must look to other

sections of the Vehicle Code (e.g., § 22113) for authority to do

so.

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