Petition for Writ of Certiorari — Clark v. California
Supreme Court brief1954
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Kil. oD
MAY 2 0 1954
OF THE
Pnited States
OcToBER TERM, 1953
No. ME 87 |
+
Frorence VAN Horr and Victor Bra,
Petitioners,
Vs.
REDEVELOPMENT AGENCY OF THE CITY AND
County or SAN Francisco, a public
body, corporate and politic, and THE
Crry anp County or San FRANCISCO,
a municipal corporation,
Respondents.
J
MOTION FOR LEAVE TO DISPENSE WITH PRINTING OF RECORD
and
PETITION FOR A WRIT OF CERTIORARI.
Martin J. JARVIS,
1095 Market Street, San Francisco 3, California,
Attorney for Petitioners.
Jack H. WERCHICK,
995 Market Street, San Francisco 3, California,
Of Counsel.
Subject Index
Page
Motion for Leave to Dispense With Printing of Record Upon
Petition for Writ of Certiorari to the District Court of
Appeal of the State of Califoriiia.. 06sec ccc ccccccccces 1
Petition for a Writ of Certiorari to the District Court of
Appeal of the State of California, First District, Division
eh iG eh niin cevawsastcvecseveaNdeknseecverene 3
Opinion below .....-..-cseeceeceeccecceceeesereereeeress 4
Jurisdiction .......cececeececccccessrccecceesreseseesers a
Questions presented .......-sseeeeceeeerererseereresseree 5
Statute involved ........eceeecserrececceeseeeeseesrerees 6
Statement of the case ......sseeeeecerrecereeererceseceeee 7
Reasons for granting the WTit.....-.--sseseeererererreeers 11
Argument .......-+- siingeieend eccuaettes Se a at aden 14
1. Is this a case such as was anticipated by the court in
Hairston v. Danville & Western Ry., 208 U.S. 598%... 14
2. Where a state constitution permits property to be
taken under the power of eminent domain for a pub-
lie use, may state legislation broaden the power of
eminent domain by enlarging the definition of ‘‘pub-
lie use’”’, beyond any previously sanctioned concept,
to include condemnation of land characterized as
‘‘hlighted’’, not because its condition presents a police
power problem, but because it is not now being used
to its fullest economic possibility and is not arranged
to fit current ideas of city development?..........-- 15
3. Were petitioners deprived of (procedural) due process
of law by the action and deci ion of the court below? 22
4. If the statute in question is constitutional, was it
applied in a manner consistent with the protection
afforded by the Fourteenth Amendment?.........+-- 29
5. Are petitioners deprived of property without due
process of law when their property is taken by the
Suszszot Lypex
power of eminent domain under a statute which vests
in an agency and board of supervisors the right to
determine under what conditions the power may be
exercised without providing standards by which such
determination shall be made? .......-..++2+e+-see0e 33
Conclusion eeereteeeereeeaereeeeee eeeereeeeeeeeeeeeereaeeereeeee
Table of Authorities Cited
Cases Pages
Belt Casualty Co. v. Furman, 218 Cal. 359, 23 P. 2d 291... 27
Borden’s Co. v. Baldwin, 293 U.S. 194.........000eeeeeeee 14, 28
Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673.....-....+++++- 14, 28
Carlson v. Curtiss, 284 U.S. 103..........-ceee reece reer 13, 28
Chicago, Burlington R.R. v. Chicago, 166 U.S. TOS. canieass 13
Cincinnati v. Vester, 281 U.S. 489........-eecerereeeceres 32
City of Los Angeles v. Koyer, 48 Cal. App. 720, 192 P. 301 31
Clark v, Nash, 198 U.S. 361.........-eeeeeeeeeeereeees 11, 18, 19
Colgate v. Harvey, 296 U.S. 404.......--++eeeeeererrecess 32
Cook v. Winklepleck, 16 Cal. App. 2d Supp. 759, 50 P. 2d
QOD «os dc o'vn's e000 +460 00K) (0b04 ebueee eeeewereenh ean’ 26
Cothran v. Cook, 146 Cal. 468, 80 P. 699.........++++seee> 26
Dahnke-Walker Co. v. Bondurant, 257 U.S. 282........-- 4, 14, 29
Eckel v. Springfield Tunnel, Ete. Co., 87 Cal. App. 617,
962 P. 425... cece cece cece ec ee ccc teescceeveersseeees 20
Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112...... 11, 13, 18
Gregg v. Pemverton, 58 Cal. 251.......+-s++seereeeeeeees 26
Hairston v. Danville & Western Ry., 208 U.S. 598........ 5, 11,14
Housing Authority v. Dockweiler, 14 Cal, 2d 437, 94 P. 2d
TOA... .cccccoctccdccdsvdsopececcsenssedesesssnsoses 17
McDonough v. Goodeell, 13 Cal. 2d 741, 91 P. 2d 1035..... 27
Morris v. Parker, District of Columbia et al., 177 F. Supp.
TOG... cba cchdseosssadetcsnstyeseunedgqutewars ues
Mosier v. Suburban Estates, Inc., 187 Cal. App. 574, 31 P.
24 DOD . ce vsccccces eeeeeeceeeeeaeeessaeaseneaseeees 29
Ohio Bell Tel. Co. v. Comm’n., 301 U.S. OR cs ses eee y 28
Opinion to the Governor, 69 A. ONE i xesdaa vandeaee 20, 31
People ex rel. Gutknecht v. City of Chicago, 399 Til. 551,
111 N.E. 2d 626 .... ce sce c eee e ence eee eee eeeeererecess 18
People of Puerto Rico v. Eastern Sugar Associates, 156 F.
2d 316, certiorari denied 329 U.S. WO SRW 18, 19, 21
TasLz or AUTHORITIES CrTED
Pages
Rindge Co. v. Los Angeles, 262 U.S. 700...........--eeee- 11
Riverside ete. Mills v. Menefee, 237 U.S. 189.............. 22
Robinson v. Superior Court, 35 Cal. 2d 379, 218 P.2d 10... 27
Schneider v. District of Columbia, 117 F. Supp. 705. .17, 19, 21, 35
Strickley v. Highland Boy Gold Min. Co., 200 U.S. 527..... 11
Townsend v. Driver, 5 Cal. App. 581, 90 P. 1071.......... 24
U. S. v. 209.25 Acres of Land, 108 F. Supp. 454........... 13
U. S. v. 277.97 Acres of Land, 112 F. Supp. 159........... 27
U. S. ex rel. T.V.A. v. Welch, 327 U.S. 546.........-...46- 15
University of Southern California v. Robbins, 1 Cal. App. 2d
523, 37 P. 2d 163, certiorari denied 295 U.S. 738......... 17
Wilson v. Philadelphia School Dist., 328 Pa. 225,195 A. 90 36
Codes
State of California Code of Civil Procedure:
nn eda aebepee eens se leat 23
I eR ec dnas dp aeuteedes tees bns 26
State of California Health and Safety Code:
Part I, Division 24, Sections 33000-33954.............. 6
i Se ON BOOED obo nccaucsevéecevetvonsenwstes 33
ten NN isc os oa ein See fo ce Set ok 31, 33, 34
28 U.S.C. 1257 (3) Te rul pauahiontede aeeernes ed nanen ots 4
Constitutions
Constitution of the State of California: __
Article I, Section 14 ...........scccercccnesceccrcees 15
Article ITI, Section 1............ccccccceceresseveses 33, 36
Article VI, Section 434............cceeeeeceeeereeees 26
Constitution of the United. States, Fourteenth Amendment.. 29
\ Rules
Revised Bules of the Supreme Court of the United States
(1950), Rule 38(5)(a).....--sseeeeeeeee a tedcebaes snare 4.
FLorENce Van Horr and Victor Bere,
Petitioners,
vs.
REDEVELOPMENT AGENCY OF THE CITY AND
County or San FRANCISCO, a publie >
body, corporate and politic, and THE
Crry anp County oF San FRANCISCO,
a municipal corporation,
Respondents.
Come now petitioners, by their counsel, and respect-
fully move that the Court permit petitioners to pro-
ceed with their petition for writ of certiorari, seeking
review of the judgment of the Court below, without
requiring the printing of the record below.
ADEA iB SI AWARE EME RN SEALE DARI LORAINE BA ERR AE A CHO
2
Stipulation of counsel for all the parties is on fil
with the Clerk of this Court, agreeing that the econ
need not be printed.
Counsel for the parties each has selected that pe -
tion of the record which he believes may be helpfu
and those portions have been certified by the Clerk
of the Court below and are on file with the Clerk
of this Court. The record is voluminous and includes
one volume of exhibits which contains maps, charts
and photographs, the reproduction of which would
be extremely expensive. This would involve an un
productive expenditure of much money by petitioners
who are home owners in the area involved and are
not people of wealth. Requiring them to have the
record printed would impose an almost unbearable |
burden and hardship upon them, while a complete.
determination of the substantial issues herein involved
can be had without a printed record without incon-
venience to the Court and without prejudice to the
rights of any of the parties.
Dated, San Francisco, California,
May 14, 1954.
Respectfully submitted,
Martin J. JARVIS, 4
Attorney for Petitioners. —
Jack H. WeRcHICK, A
Of Counsel. q
_ Fronence Van Horr and Victor Bere,
Petitioners,
: vs.
| REDEVELOPMENT AGENCY OF THE CITY AND
_ County oF San Francisco, a publics
body, corporate and politic, and THE
| Orry anp County or San FRANCISCO,
amunicipal corporation,
Respondents.
i deiteasie
| PETITION FOR A WRIT OF CERTIORARI TO THE DISTRICT
COURT OF APPEAL OF THE STATE OF CALIFORNIA,
FIRST DISTRICT, DIVISION ONE.
To the Honorable Earl Warren, Chief Justice of the
a United States, and to the Honorable Associate
Justices of the Supreme Court of the United
‘A States:
- Petitioners pray that a writ of certiorari issue
to review the judgment of the District Court of
4
Appeal of the State of California, First District,
Division One, entered on January 26, 1954.
OPINION BELOW.
The opinion of the District Court of Appeal is
reported at 122 Adv. Cal. App. 836 and 123 Adv. Cal.
App. 355, 266 P. 2d 105, and is attached to this
petition as Appendix B.
JURISDICTION.
The judgment of the District Court of Appeal was
entered on January 26, 1954. A petition for rehear- —
ing was timely filed and was denied on February 25,
1954. A petition for hearing was timely filed with
the Supreme Court of California and was denied
on March 25, 1954, three of the seven justices voting
for a hearing. The jurisdiction of this Court is
invoked under 28 U.S.C. 1257(3) and is supported
by Rule 38(5)(a), Revised Rules of the Supreme
Court of the United States (1950) and by the appli-
cable rule stated in Dahnke-Walker Co. v. Bondurant,
257 U.S. 282, at pages 289 and 290. The Federal
questions upon which petitioner seeks review were
raised at every step of the proceedings below—in the
original Court, in the petition for rehearing and in
the petition for hearing before the State Supreme
Court. ‘Review by this Court is the only means re-
maining by which petitioners may remedy the denial
of their substantial Federal rights.
5
Federal questions are involved, not only because
petitioners were, and will be further, deprived of
property without due process of law by reason of
the decision below, but also because they were denied
a trial in the Court below in violation of the Four-
teenth Amendment.
QUESTIONS PRESENTED.
1. Is this a case such as was anticipated by the
Court in Hairston v. Danville & Western Ry., (208
U.S. 598, 607) :
‘No ease is recalled where this Court has con-
demned as a violation of the Fourteenth Amend-
ment a taking upheld by the state court as a
taking for public uses in conformity with its
laws. * * * We must not be understood as saying
that cases may not arise where this court would
decline to follow the state courts in their deter-
mination of the uses for which land could be
taken by the right of eminent domain. * * *”’
9. Where a state Constitution permits property
to be taken under the power of eminent domain for a
public use, may state legislation broaden the power of
eminent domain by enlarging the definition of ‘* public
use”, beyond any previously sanctioned concept, to
include condemnation of land characterized as
“blighted’’, not because its condition presents a police
power problem, but because it is not now being used
to its fullest economic possibility and is not arranged
to fit ideas of city development?
6
3. Where the Court permitted petitioners to in-
tervene and file an answer, and where the constitu-
tional application of a statute depends upon the exist-
ence of certain facts, may the Court, in deciding the
constitutionality of the statute, ignore the answer and
factual issues raised and, by assuming the truth of all
the facts alleged in the complaint, decide the case
adverse to interveners?
4. Ifthe Statute in question is constitutional, was it
applied in a manner consistent with the protection
afforded by the Fourteenth Amendment?
5. Are petitioners deprived of property without
due process of law when their property is taken by
the power of eminent domain under a statute which
vests in an agency and board of supervisors the right
to determine under what conditions the power may
be exercised without providing standards by which
such determinations shall be made?
STATUTE INVOLVED.
The material provisions of the ‘‘Community Re-
development Law” (Part I, Division 24, Sections
33000-33954 of the Health and Safety Code of the
State of California)’ are set forth in Appendix A.
1Hereafter referred to as ‘‘the statute.”
7
STATEMENT OF THE CASE.
This case does not involve slum clearance ct low-
cost housing, but involves a proposal to take vacant
land by the power of eminent domain, to prepare it
for building sites and then to sell it to private build-
ers for expensive ‘‘view”’ homes and apartments.
Petitioners are residents and taxpayers of the City
and County of San Francisco, who reside, own homes
and vacant land in the Diamond Heights Project
Area’, and were found by the Court below to be suf-
ficiently interested in and affected by this action to
be permitted to intervene as parties.
Respondents are members of the Redevelopment
Agency of the City and County of San Francisco’, a
public body, corporate and politic, and the City and
County of San Francisco, a municipal corporation.‘
Respondent agency undertook to redevelop two
separate areas under the provisions of the statute.
Since one, Western Addition was concerned with
slums, it is not involved herein. The other area is
the Diamond Heights area, in which petitioners are
residents and property owners. Since this project
was the first attempted under the statute, a ‘‘friendly”’
test suit was arranged by respondents by having the
chairman of the agency refuse to sign certain loan and
grant contracts with the United States of America,
whereupon, the other members of the agency and the
City and County filed a petition for a writ of mandate
2Hereafter referred to as ‘‘Diamond Heights.’’
8Hereafter referred to as ‘‘the Agency.’’
‘Hereafter referred to as the ‘‘City and County.”
8
with the Supreme Court of California, ostensibly to
compel the chairman to sign the contracts—but actu-
ally to test the constitutionality of the statute. The
cause was transferred to the Court below, where peti-
tioners (herein) were granted leave to intervene on the
grounds that they had a sufficient interest in the sub-
ject of the litigation and would be directly and im-
mediately affected by the judgment of the Court.
The petition for writ of mandate referred to cer-
tain preliminary steps taken and then set forth,
largely in the words of the statute, the alleged con-
ditions of ‘‘blight’’ claimed to exist in Diamond
Heights, upon the existence of which the pur-
ported application of the statute was based. See sum-
mary of allegations of petition in Decision, Appendix
B, pages 3 to 8 inclusive.
Petitioners (herein) answered the petition for writ
of mandate—denying the material allegations of the
petition and thereby raising important and basic issues
of fact upon the determination of which the property
rights of petitioners (herein) depended. The answer
alleged further that 65 per cent of the 325 acres in
Diamond Heights are now, and for many years past
have been, owned by public agencies; that in that area,
which is hilly like much of the rest of San Francisco,
most of the streets which are of unusable grade are
located in the publicly owned portion; that no pro-
posal is made in the plan for redevelopment to route
main thoroughfares for ‘‘through traffic’”’ through the
area, but only to install streets necessary to serve the
area itself and to connect them with main thorough-
—
9
fares adjoining; that there is no land or housing
shortage in San Francisco, except for the normal
demand for low-cost housing present in almost all
large cities—but that this kind of shortage would not
be relieved by the proposed construction of high-cost
“view? homes and apartments; that the portion of
the area occupied by private persons is served by
utilities; and that if the city released its publicly-
owned land for private use, the present owners and
private enterprise, without public assistance, could
and would develop Diamond Heights within existing
laws and regulations, and without loans and grants
from the government. (R. pp. 311-315.)
The answer further alleged, in effect, that the find-
ings, alleged to have been made by the board of
supervisors, were arbitrary, capricious and without
any substantial or competent evidence to support
them; that the statute was unconstitutional and void
because it proposed the taking of private property
by the power of eminent domain for a private and
not a public use; that if the Court found the statute
constitutional on its face, nevertheless it was being
applied in the instant case arbitrarily, capriciously
and in an unconstitutional manner, such as would de-
prive interveners (petitioners herein) of property
without due process of law in violation of State and
Federal Constitutions, (R. pp. 316-317.)
The answer also contained a general demurrer to
the petition for the writ of mandate on substantially
the same constitutional grounds above stated. (R.
p. 310.)
10
Respondents (petitioners below) demurred gener-
ally and specially to the complaint in intervention
(answer) on the grounds that interveners have no
right to intervene and that the answer does not state
facts sufficient to constitute a defense to the petition
for the writ of mandate, and moved to strike the com-
plaint in intervention on the grounds that it was
sham, irrelevant and argumentative. (R. pp. 335-338.)
At the hearing of the cause, the right to intervene
was sustained, but interveners’ (petitioners herein)
request for a trial on the disputed facts, as well as
all the demurrers and thé motion to strike were taken
under submission by the Court below. (R. p. 415.)
Tn its decision on the case (Appendix B) the Court
below announced that the demurrers to the petition
for writ of mandate and to the complaint in interven-
tion (answer) were overruled; that the motion to
strike the complaint in intervention was granted, to
all except those portions which constituted a demurrer
to the petition for the writ, because “‘(we) deem it
better to confine the issues to those of law, leaving
the factual issues, if any, to be determined in @
tribunal better adapted to trying them.” (Decision,
page 9.) The Court below asswmed to be true all the
facts alleged by the petition for writ of mandate and
decided the case adversely to interveners (petitioners
herein), without hearing intervener’s side of the
case.
11
REASONS FOR GRANTING THE WRIT.
1. This is a case of first impression both with this
Court and with the Court below.
9. It involves new and important questions of
widespread importance and interest, since it concerns
“urban redevelopment’? law, about which statutes
have been adopted recently by 34 states and four
territories of the United States.
3. The question of ‘‘public use’’ involved in the
instant case will not be determined by peculiar, local
conditions, because many of the redevelopment laws
are premised upon the same hypothesis—the applica-
tion of the power of eminent domain, not to clear
slums or provide low-cost housing or to eliminate other
police power problems, but to adapt and use vacant
areas which are not now being used to their fullest
economic possibility and are not arranged to fit cur-
rent ideas of city development. Hence, this case is
distinguishable from the Fallbrook, Clark, Strickley,
Hairston, Rindge® and other similar cases, where this
Court declined to interfere with the state Court’s
determination of ‘‘public use” on the ground that
state Courts and legislatures were better informed of
peculiar, local conditions which might create a ‘‘ public
use’ in one circumstance where, in a different locale,
that circumstance would be a private use.
4. This Court has granted a hearing on its Octo-
ber, 1954 calendar in the case of Morris v. Parker,
SFallbrook Irrigation Dist. v. Bradley, 164 U.S. 112; Clark v.
Nash, 198 U.S. 361; Strickley v. Highland Boy Gold Min. Co.,
200 U.S. 527; Rindge Co. v. Los Angeles, 262 U.S. 700; Hairston
v, Danwille, etc. Ry., supra.
12
District of Columbia et al., 177 F. Supp. 705, which
involves the ‘‘Redevelopment Act’’ for the District
of Columbia, and concerns questions similar and re-
lated to those of the instant case. An opinion by this
Court in the Morris case, without considering the
instant case, could result in uncertainty and confu-
sion among the various states as to their powers under
their redevelopment laws and would certainly make
uncertain the extent of the protection provided by
the Fourteenth Amendment to property rights in
‘‘redevelopment”’ situations.
5. Petitioners herein have no other adequate rem-
edy for the denial of their Federal rights by the
judgment of the Court below, which according to
California law, is res judicata of the matters pur-
portedly decided there. If this writ of certiorari is
denied here, the Court below will immediately issue
its peremptory writ of mandate ordering the chair-
man of the agency to execute the contracts with the
United States of America. Loans and grants of
moneys will be made and tax moneys expended. Peti-
tioners will be deprived of property rights because
they will lose the right to build upon, remodel or add
to their property as soon as the ‘‘go-ahead”’ signal is
given—which awaits the determination of the instant
case—because the statute provides that applicants in
the area shall be ‘‘put on notice’’ of the contemplated
redevelopment of the area, hence, this would affect
the determination of ‘‘market value’’ of the property
upon subsequent condemnation. (The Statute, Section
33574, Appendix A.)
es —
13
6. By the decision and judgment of the Court be-
low, petitioners have been denied ‘‘procedural”’ due
process of law because important Federal rights were
denied to petitioners on the basis of facts ‘“‘assumed
to be true” by the Court below without any evidence,
in spite of denials of those alleged facts by petition-
ers. This was done in a matter where the conclusion
of law as to the Federal rights and the findings of
fact are so intermingled as to make it necessary, in
order to pass upon the Federal questions, to analyze
the facts, which the Court below refused to do. In
other words the Court below denied petitioners a
full and fair hearing, refusing to hear their side of
the case.
7. A long. line of decisions by this Court and by
State Courts consistently hold to the rule that while
great deference is paid to legislatures (and State
Courts), that the Courts must ultimately determine
the questions: what is a public use; have administra-
tive agencies lawfully invoked the political power of
the legislature ; was the legislation based upon an arbi-
trary belief of the existence of the evils it was in-
tended to remedy; whether the means chosen are
reasonably calculated to cure the evils reasonably be-
lieved by the legislature to exist and was petitioner
denied a full and fair trial below. People of Puerto
Rico v. Eastern Sugar Associates, 156 F. 2d 316,
certiorari denied 329 U.S. 773; Fallbrook Irrigation
District v. Bradley, supra; U.S. v. 209.25 Acres of
Land, 108 F. Supp. 454; Chicago, Burlington B.R. v.
Chicago, 166 U.S. 226; Carlson v. Curtiss, 234 U.S.
14
103; Dahnke-Walker Co. v. Bondurant, 257 U.S. 282;
Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673; Borden’s
Co. v. Baldwin, 293 U.S. 194.
ARGUMENT.
1. I8 THIS A CASE SUCH AS WAS ANTICIPATED BY THE
COURT IN HAIRSTON v. DANVILLE & WESTERN RY., 208
U.S. 5987
In the above cited case, at page 607, the Court
stated: ;
‘‘No case is recalled where this Court has con-
demned as a violation of the Fourteenth Amend-
ment a taking upheld by the state court as a
taking for public uses in conformity with its
laws. * * * We must not be understood as saying
that cases may not arise where this court would
decline to follow the state courts in their deter-
mination of the uses for which land could be
taken by the right of eminent domain. * * *”’
See ‘‘Reasons for Granting the Writ’’, supra, points
1, 2, 3 and 7.
Petitioners further respectfully contend that this
Court should ‘‘decline to follow’’ the decision of the
Court below because it is not the expression of the
highest Court of the state (three of the seven justices
there voted for a hearing after decision by the Court
below) and because, it is respectfully submitted,
the decision below is inconsistent in its reasoning, is
based on facts assumed without any evidence in sup- -
rs
15
port thereof, and because the Court below failed to
decide the case as a whole, contrary to the principle
established in U. S. ex rel. T.V.A. v. Welch, 327 U.S.
546, 553, but considered only one side of the question
and based its decision on that consideration.
The instant case presents a ‘‘general welfare’’ ques-
tion, that is, the attempted justification of the pro-
posed use of the land is not to remove any existing
menace to the health, safety or morals of the people,
but to benefit the general welfare.
—_—_
9. WHERE A STATE CONSTITUTION PERMITS PROPERTY TO
BE TAKEN UNDER THE POWER OF EMINENT DOMAIN
FOR A PUBLIC USE, MAY STATE LEGISLATION BROADEN
THE POWER OF EMINENT DOMAIN BY ENLARGING THE
DEFINITION OF ‘‘PUBLIC USE’, BEYOND ANY PREVI-
OUSLY SANCTIONED CONCEPT, TO INCLUDE CONDEMNA-
TION OF LAND CHARACTERIZED AS ‘‘BLIGHTED’’, NOT
BECAUSE ITS CONDITION PRESENTS A POLICE POWER
PROBLEM, BUT BECAUSE IT IS NOT NOW BEING USED TO
ITS FULLEST ECONOMIC POSSIBILITY AND IS NOT AR-
RANGED TO FIT CURRENT IDEAS OF CITY DEVELOP-
MENT?
The California Community Redevelopment Law was
passed in 1945 and has never been tested as to con-
stitutionality. The California Constitution permits
private property to be taken for public use by exer-
cise of the power of eminent domain. (Article I, See-
tion 14.) Neither slum clearance nor low-cost housing
is involved in this case. This case deals with the
proposed application of the power of eminent domain
to a new subject, as stated by the Court below:
16
“‘Its claimed necessity for redevelopment is its
economic dislocation and disuse.’’ (Decision, page
17.)
“It might be pointed out that as our commu-
nity life becomes more complex, our cities grow
and become over-crowded, and the need to use
for the benefit of the public areas which are not
adapted to the pressing needs of the public be-
comes more imperative, a broader concept of what
is a public use is necessitated.’’ (Decision, page
37.)
Petitioners respectfully urge that this new purpose
is not a public use or purpose and is, therefore, a
taking of property in violation of specific constitu-
tional guarantees.
California Courts have heretofore readily accepted
the principle that the protection of the health, safety
and morals of the people, or use by the public, con-
stituted public uses or purposes for which the power
of eminent domain might be exercised. However, no
California decision, nor any by this Court, has here-
tofore expanded that power to include the taking of
property beyond the scope of this principle. In the
instant case, neither the allegations of the petition
for the writ, nor the decision of the Court below,
proposes or finds any ‘‘use’’ by the public, but it is
stated that a public ‘‘purpose”’ is being served by
making available to private builders (for expensive
‘*view’’ homes and apartments) this land which is now
in “‘ecohomic dislocation and disuse’’. Every one of the
California decisions, heretofore upholding the exercise .
of the power of eminent domain, has either found
17
in the proposed use a right of public use or elimina-
tion of direct threats to the health, safety and morals
of the people, or the provision of low-cost housing.
(See University of Southern California v. Robbins,
1 Cal. App. 2d 523, 527, 37 P. 2d 163, certiorari de-
nied, 295 U.S. 738; Housing Authority v. Dockwetler,
14 Cal. 2d 437, 94 P. 2d 794.)
In support of its decision to broaden the ‘‘concept
of what is a public use” the Court below cited and
reviewed many cases. (Decision, pages 17 to 26.) From
those cases the Court below concluded that “the right
to its use (eminent domain) depends upon what is
referred to in the Schneider case® as a ‘compelling
community economic need’.”” But analysis of the cases
considered by the Court below reveals no such new
and broadened power of eminent domain either ap-
proved or contemplated, except in the Schneider case,
supra, where the three-judge Court for the District
of Columbia, considering a situation very much like
that in the instant case, rejected the proposed exercise
of the power of eminent domain, stating, at page 720:
‘We are of the opinion that the Congress, in
legislating for the District of Columbia, has no
power to authorize the seizure by eminent domain
of property for the sole purpose of redeveloping
the area according to its, or its agents’, judgment
of what a well-developed, well-balanced neighbor-
hood would be; lest this sentence be miscon-
strued out of context, we repeat our hypothetical
assumption * * * that no slum exists on the
®8Schneider v. District of Columbia, 117 F. Supp. 705.
dl
18
hypothetical property or in the area and that
the seizure is not for a public use.”’
At page 724 of the same opinion, the Court further
states :
‘‘We hold that Congress did not in the .Rede-
velopment Act confer power to seize property
beyond the reasonable necessities of slum clear-
ance and prevention, the word ‘slum’ meaning
conditions injurious to the public health, safety,
morals and welfare.’’
The cases considered by the Court below, in arriv-
ing at its new expanded concept of ‘‘public use’’ were
not concerned with a new application of the power
of eminent domain, but dealt with slum clearance,
except Fallbrook, Clark and The City of Chicago
cases.’ The latter was sustained by the Illinois Court,
with a strong dissenting opinion, only after a rehear-
ing of a decision which held exactly the opposite of
the rehearing decision, and, as indicated by the Court
below in the instant case, only because of its relation
to slum clearance. (Decision, page 25.)
The Fallbrook Irrigation District v. Bradley case,
supra, cited and quoted in part in the opinion of
the Court below, has often been cited as promulgating
the rule that a state’s power of eminent domain may
be exercised if the taking ‘‘be essential or material
for the prosperity of the community. No such un-
limited extension of power is provided by that case.
‘
People ex rel. Gutknecht v. City of Chicago, 399 Ill 551,111
N.E, 2d 626.
19
»
In Clark v. Nash, supra, the Court stated, at page
369 :
“But we do not desire to be understood by this
decision as approving of the broad proposition
that private property may be taken in all cases
where the taking may promote the public interest
and tend to develop the natural resources of the
State.”’
In People of Puerto Rico v. Eastern Sugar Assoct-
ates, supra, at page 323, the Court stated :
“Tt does not follow from this, however, that
a taking of property from one, for the purpose
of transferring it to another, without anything
more, conforms to due process of law. Some
public benefit or advantage must accrue from the
transfer and mere financial gain to the taker is
not enough, since the Supreme Court has inti-
mated that the power of eminent domain cannot
be used by the taking authority in aid of ‘an
outside land speculation.’ Brown v. US., 263 U.S.
78, 84.”
The Court below, in its decision, sought to distin-
guish the Schneider case on its facts; but that it is
not so distinguishable is evident from the language
of the Court in that case, at page 719:
“The hypothesis in * * * this consideration is
an urban area which does not breed disease or
crime, is not a slum. Its fault is that it fails
to meet what are called modern standards. Let us
suppose that it is backward, stagnant, not prop-
erly laid out, economically Eighteenth Century—
anything except detrimental to health, safety or
morals,”’
20
California law has not changed from the expression
of the Court in Eckel v. Springfield Tunnel, Etc. Co.,
87 Cal. App. 617, 625, 262 P. 425:
“‘* * * it is elementary that private property
cannot be taken for private use upon the ground
that it is more valuable to the taker than to him —
from whom it is taken.”’
Considering a statute almost identical with the Cali-
fornia statute here in question, the Justices of the
Supreme Court of Rhode Island, in upholding the
statute as to slum clearance, ruled:
“‘* * * by our present opinion we are not
to be understood as holding that under this act
a community through an agency may engage in a
redevelopment project based mainly upon esthetic
views or upon considerations of economic advan-
tage to the municipality, or a combination of
both. Unless it is found that under the act, as
herein construed and limited, a community rede-
velopment program is necessary to protect the
public health, morals and safety through the elim-
ination of blighted areas the act does not apply.”
Opinion to the Governor, 69 A. 2d 531.
It should be noted that many of the state decisions
which have upheld the exercise of eminent domain
for slum clearance have based that right upon pro-
tection of health, safety and morals. In the instant
ee
~~ ‘general w
. There is no more subtle means of transform-
\inig the basie coneept of our government, of shift-
ing from the preeminence of individual rights to
_——— weihnh tet
21
the preeminence of government wishes, than is
afforded by redefinition of ‘general welfare’, as
that term is used to define the Government’s
power of seizure.”’
Schneider v. District of Columbia, 117 F. Supp.
705, 720.
The declarations of the legislature in a statute as to
its needs and purposes, and the presumed findings
of fact by the legislature in support of its legislation,
are not conclusive upon the Courts, for, as stated
in People of Puerto Rico v. Sugar Associates, 156 ¥.
2d 316, 324:
“«“* * * it is our duty to determine whether their
enactment rested upon an arbitrary belief of the
existence of the evils they were intended to rem-
edy and whether the means chosen are reasonably
ealeulated to cure the evils reasonably believed
by the legislature to e ist.’’
«# * * This court, referring to the Fourteenth
Amendment, has said: ‘Can a State make any-
thing due process of law which, by its own legis-
lation, it chooses to declare such? To affirm this
is to hold that the prohibition to the States is of
no avail, or has no application where the invasion
of private rights is effected under the forms of
state legislation.’ Davidson v. New Orleans, 96
U.S. 97, 102. The same question could be pro-
pounded, and the same answer should be made,
in reference to judicial proceedings inconsistent
with the requirement of due process of law.”
Petitioners respectfully submit that the Statute
violates the inhibition of the Fourteenth Amendment
——
22
by providing for the exercise of the power of eminent
domain for a private use and purpose.
3. WERE PETITIONERS DEPRIVED OF (PROCEDURAL) DUE
PROCESS OF LAW BY THE ACTION AND DECISION OF
THE COURT BELOW?
In a petition for writ of mandate, where the Court
permitted interveners to appear as parties opposing
the petition and: file an answer, where the cause is
at issue with allegations and denials of fact and where
the constitutional application of a state statute de-
pends upon the existence of certain facts, may a state
Court, in deciding the constitutionality of the statute,
yore the entire answer which places the facts in
dispute, and, by assuming the truth of all the facts
allege in the petition, decide the case adversely to
interveners ?
‘*That to condemn without a hearing is repug-
nant to the due process clause of the Fourteenth
Amendment needs nothing but statement.’’
White, C. J., in Riverside etc. Mills v. Menefee,
237 U.S. 189, 193.
The instant case was initiated as a ‘“‘friendly’’ test
case by having the Chairman of the Agency refuse
to execute certain contracts, whereupon the other
members of the Agency and the City and County
sought a writ of mandate to compel said Chairman
to execute the contracts. Petitioners (herein) were
granted leave, by the Court below, to intervene on
the ground they had alleged: that petitioners were.
ae
residents and property owners of Diamond Heights,
taxpayers of said City and County, and had an impor-
tant, direct and immediate interest in the litigation;
that there were many other persons similarly situated
who were too numerous to join in the proceedings ;
and that the intervention would be for the interests
of interveners and the others too numerous to appear.
Interveners (petitioners herein) then filed a com-
plaint in intervention (an answer) in accordance with
California law:
‘At any time before trial, any person, who has
an interest in the matter in litigation, or in the
suecess of either of the parties, or an interest
against both, may intervene in the action or pro-
ceeding. An intervention takes place when a third
person is permitted to become a party to an
action or proceeding between other persons, either
by joining the plaintiff in claiming what is sought
by the complaint, or by uniting with the defend-
ant in resisting the claims of the plaintiff, or by
demanding anything adversely to both the plain-
tiff and the defendant, and is made by complaint,
setting forth the grounds upon which the inter-
vention rests, filed by leave of the court,.*. °° *.?
State of California Code of Civil Procedure,
Section 387.
«“* * * The order of the * * * court granting
leave to intervene determined that interveners
had an interest in the matter in litigation, and
under Section 387, Code of Civil Procedure, were
entitled as parties to avail themselves of all of
the procedure and remedies to which the defend-
—
24
ants were entitled for the purpose of defeating
the action or resisting plaintiff’s claim. (People
v. Perris Irr. Dist., 132 Cal. 290.)”
Townsend v. Driver, 5 Cal. App. 581, 583-4,
90 P. 1071.
Interveners, in their complaint in intervention
(answer) denied those material allegations which the
Court below, in its decision, assumed to be true, and
interveners alleged certain ultimate, issuable facts by
way of an affirmative defense to the issuance of the
writ. In addition, and in the alternative, as per-
mitted by California law, interveners demurred to
the petition for the writ on the grounds that it stated
no cause of action for the relief prayed, since the
action sought to be done is prohibited by the Four-
teenth Amendment and by certain specified sections
of the California Constitution.
In their pleadings, interveners admitted that Dia-
mond Heights is hilly and that some of the streets
were laid out not according to contour, that there
are about 500 parcels in separate ownership, that
the area was subdivided by 1891 and that, of the
325 acres in the area, 115 are in private ownership,
of which about 43 per cent is improved with houses.
They alleged that 65 per cent of the entire area, or
210 acres, are now, and have been for many years
past, in public ownership and vacant. Interveners
denied all the other material allegations of the peti-
tion for the writ, thereby raising important issues
of basie facts.
25
The Agency and the City and County (petitioners
below) responded to the complaint in intervention,
by demurrer, general and special, on the grounds
that it did not state facts sufficient to constitute a
defense to the petition and on the further ground
that interveners were without right to intervene. They
also moved to strike the complaint in intervention
on the grounds that it was shanf, irrelevant and argu-
mentative.
At the hearing of the cause, the Court below denied
the motion to “‘oust’’ interveners from the action. The
other matters—demurrers, motion to strike and inter-
veners’ request for a trial on the disputed facts (in
the event their general demurrer was overruled)—
were submitted. In its decision, the Court below
overruled the general and special demurrers to the
complaint in intervention, but granted the motion
to strike all portions of that pleading except the por-
tion which constituted a demurrer to the petition for
writ of mandate. Hence, the Court ruled against
interveners on their demurrer and also deprived them
of an opportunity to proceed with their proof as to
the facts upon which they relied as a defense, stating:
“Under the situation in this case and because
of the limited facilities of this court to conduct
a trial on factual issues, we deem it unnecessary
to determine whether we have the power to per-
mit interveners to raise issues of fact, but deem
it better to confine the issues to those of law,
leaving the factual issues, if any, to be deter-
mined in a tribunal better adapted to trying
them. Therefore we will grant petitioners’ mo-
26
tion to strike all of the complaint in intervention
except those portions constituting a demurrer.”
Decision, page 9.
“In view of contentions made in the petitions
for rehearing, we deem it advisable to add the
following to our opinion: ‘As we have herein
stated, our decision is limited to questions of law,
based upon the assumption that the findings of
the administrative agencies involved in the rede-
velopment program are true.’
The petitions of interveners and amicus curiae
for rehearing are denied.’’
Opinion of the Court below on denial of peti-
tion for rehearing, 123 Adv. Cal. App. 355.
California law provides that the District Court of
Appeal may take evidence. Article VI, Section 4%,
California Constitution; Section 956a, Code of Civil
Procedure.
‘*When a court of equity once obtains jurisdic-
tion of a case it will decide the whole case as
between the parties and not leave any part of it
for future litigation.”’
Cook v. Winklepleck, 16 Cal. App. 2d Supp.
759, 765, 50 P. 2d 463.
“In mandamus proceedings, petitioner must
prove every fact that lies at the foundation of
his proceeding and where an answer to the peti-
tion for the writ states several facts as defenses
to the action, judgment should not be given until
\the issues have been disposed of.”’
Cothran v. Cook, 146 Cal. 468, 80 P. 699;
Gregg v. Pemverton, 53 Cal. 251.
_eegpinenens
27
“The granting of affirmative relief to the in-
terveners is but incidental to the main purpose
of the section of the Code of Civil Procedure,
which is to obviate delay and multiplicity of
actions by creating an opportunity to those di-
rectly interested in the subject matter to join in
an action already instituted * * *.”
Belt Casualty Co. v. Furman, 218 Cal. 359,
23 P. 2d 291.
«“* * * the court cannot, by holding without
reason that it has no jurisdiction of the pro-
ceeding, divest itself of jurisdiction and evade
the duty of hearing and determining it (citing
case).”’
Robinson v. Superior Court, 35 Cal. 2d 379, 383,
218 P. 2d 10.
In its decision, the Court below stated that it had
assumed the truth of the findings of the administra-
tive agencies involved. But interveners had denied
the allegations of findings and had alleged, in effect
that the findings were arbitrary, capricious and fanci-
ful. This allegation should have been tried and deter-
mined by the Court below.
‘Where an administrative agency acts arbi-
trarily, capriciously or fraudulently, such action
constitutes an abuse of discretion, and, since un-
authorized, an excess of jurisdiction subject to
correction by the courts.”
McDonough v. Goodcell, 13 Cal. 2d 741, 91 P.
2d 1035;
U.S. v. 277.97 Acres of Land, 112 F. Supp. 159,
162.
28
‘‘While, in ordinary cases, we are bound by
the findings of the state court of last resort
respecting matters of fact, it hardly is necessary
to say that that court cannot, by omitting to pass
upon the basic questions of fact, deprive a liti-
gant of the benefit of a Federal right, any more
than it could do so by making findings that were
wholly without support in the evidence.’’
Carlson v. Curtiss, 234 U.S. 103, 106.
‘‘Our present concern is solely with the ques-
tion whether the plaintiff has been accorded due
process in the primary sense—whether it has had
an opportunity to present its case and be heard
in its support. * * * But, while it is for the state
courts to determine the adjective as well as the
substantive law of the State, they must, in so
doing, accord the parties due process of law.’’
Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673,
681.
See, also:
Borden’s Co. v. Baldwin, 293 U.S. 194.
‘‘There can be no compromise on the footing
of convenience or expediency or because of a nat-
ural desire to be rid of harassing delay, when
that minimal requirement (a fair hearing) has
been neglected or ignored.”’
Ohio Bell Tel. Co. v. Comm’n., 301 U.S. 292,
304.
The judgment of the Court below, unless set aside,
is res judicata, as to interveners (petitioners herein)
because it is the rule in California that, by a com-
29
plaint in intervention the intervener becomes a party
to the action and the judgment in such a case be-
comes binding and conclusive on the intervener, who
is estopped from further claims as to those matters
adjudicated.
Mosier v. Suburban Estates, Inc., 137 Cal. App.
574, 31 P. 2d 209.
Since the Court below, in permitting petitioners
(herein) to intervene in the action below, determined
that they had a sufficient interest in the case which
would be directly and immediately affected by the
judgment of the Court, petitioners respectfully sub-
mit that, by being denied a full and fair hearing
in the Court below, they were denied due process of
law in contravention of the Fourteenth Amendment.
4, IP THE STATUTE IN QUESTION IS CONSTITUTIONAL, WAS
IT APPLIED IN A MANNER CONSISTENT WITH THE PRO-
TECTION AFFORDED BY THE FCURTEENTH AMENDMENT?
Assuming arguendo that the statute is constitu-
tional, under the circumst=nces of the instant case
it is unconstitutionally applied to petitioners in viola-
tion of their Federal rights protected by the Four-
teenth Amendment by depriving them of property
without due process of law and by denying them equal
protection of the law.
‘A statute may be invalid as applied to one
state of facts and yet valid as applied to another.”’
Dahnke-W alker Co. v. Bondurant, 257 U.S. 282,
288.
30
As applied in the instant case, the proposed taking
is for a private use and not for a public use and
the application of the statute to petitioners is arbi-
trary, oppressive and discriminatory and has no
reasonable relation to the protection of the public
health, safety, morals or welfare, or to any of the
objects or purposes for which the statute was en-
acted.
In the statute, the legislature made no declaration
concerning the specific property involved. There is
not one word, even in the facts ‘‘assumed true’’ by
the Court below, which even suggests that the Dia-
mond Heights area presents a slum problem. The most
that the Court below could find, even assuming the
alleged facts to be true, was that the layout disregards
the contours, that there are many owners, that the
streets are steep and the lots irregular in size and
shape, and, for these reasons, the land is undeveloped
and should be made available for private (non-low
cost) housing. The legislature intended no such far-
fetched extension of the statute to permit the seizure
of a wholesome, undeveloped area from its present
owners to be developed into expensive ‘‘view’’ homes
and apartments.
“A grant of the power of eminent domain,
which is one of the attributes of sovereignty
most fraught with the possibility of abuse and in-
justice, will never pass by implication, and when
the power is granted, the extent to which it may
be exercised is limited to the express terms or
——
31
clear implication of the statute in which the grant
is contained.”’
City of Los ‘Angeles v. Koyer, 48 Cal. App. 720,
725, 192 P. 301.
Analysis of the statute can lead only to the conclu-
sion reached by the highest Court of Rhode Island in
Opinion to the Governor, 69 A. 2d 531 (1949), where
the Rhode Island Redevelopment Statute, almost
identical to California’s, was construed. The Rhode
Island Court concluded that their law authorized the
agency to acquire property for the purpose of “‘elimi-
nating blighted areas that are ‘conducive to ill health,
transmission of disease, infant mortality, juvenile
delinquency and crime.’ ” but not for “‘esthetic’”’ or
“economic advantage to the municipality’? as pro-
posed in the case at bar.
Reading the pertinent provisions of the statute it
is clear that the declaration of the legislature did not
concern all conditions everywhere in the State. It
declared as a matter of legislative determination that
the conditions to which it referred ‘‘eonstitute either
social or economic liabilities, or both, requiring re-
development in the interest of the health, safety, and
general welfare * * *”’ (Section 33040.) That ** (Such
blighted areas) contribute substantially and increas-
ingly to the problems of, and necessitate excessive and
disproportionate expenditures for, crime prevention,
correction, prosecution, and punishment, the treat-
ment of juvenile delinquency, the preservation of the
public health and safety, and the maintaining of ade-
=
quate police, fire and accident protection and other
public services and facilities.”’
32
In these quoted phrases is the description of the
conditions to which the statute is directed. For the
elimination of these conditions, it states, the exercise
of the power of eminent domain to acquire property
is necessary. But, giving the restricted interpretation
to a grant of the power of eminent domain as is re-
quired by Common Law and California law, the
agency may exercise that power only under the condi-
tions imposed by the legislature.
As stated in Cincinnati v. Vester, 281 U.S. 439 at
446: ;
«“* * * when a city acquires property for public
use, it would seem clear that a mere statement by
the council that the excess condemnation is in
furtherance of such use would not be conclusive.
Otherwise, the taking of any land in excess con-
demnation, although in reality wholly unrelated
to the immediate improvement, would be sus-
tained on a bare recital. This would be to treat
the provision as giving such a sweeping authority
to municipalities as to make nugatory the express
condition upon which the authority is granted.”’
Since the taking, as proposed in the instant case, be
not for a public use, then it is arbitrary and not rea-
sonably related to the lawful purpose of the statute
and would thus deprive petitioners of equal protection
of the law as provided in the Fourteenth Amendment.
Corgate v. Harvey, 296 U.S. 404, 424.
gongs
For the reasons above stated, petitioners respect-
fully submit that the statute, if constitutional, is being
applied in a manner inconsistent with the protection
of the Fourteenth Amendment.
ane
5. ARE PETITIONERS DEPRIVED OF PROPERTY WITHOUT
DUE PROCESS OF LAW WHEN THEIR PROPERTY IS
TAKEN BY THE POWER OF EMINENT DOMAIN UNDER A
STATUTE WHICH VESTS IN AN AGENCY AND BOARD OF
SUPERVISORS THE RIGHT TO DETERMINE UNDER WHAT
CONDITIONS THE POWER MAY BE EXERCISED WITHOUT
PROVIDING STANDARDS BY WHICH SUCH DETERMINA-
TION SHALL BE MADE?
Article III, Section 1 of the Constitution of the
State of California prohibits the delegation of legis-
lative power. It is respectfully submitted that the
statute transfers legislative power to the agency in
direct violation of that constitutional inhibition, hence,
under the proposed plan, petitioners are deprived of
property without due process of law.
Sections 33040 to 33045, inclusive, of the statute
contain the definitions of ‘‘Blighted Areas’. It is
stated in Section 33040 that ‘‘These blighted areas
are characterized by one or more of the conditions
set forth in these sections.”
It is a familiar proposition that the legality of
delegation of power by the legislature depends upon
the standards and guides set forth by the legislature
within which an administrative dy is allowed to
function. If the guides and standards are sufficiently
and definitely defined, the objection that there is an
34
unlawful delegation of power will fail; if not, the —
delegation violates the constitutional prohibition.
The Court below, in its decision in the instant pro-
ceeding, held that there was no unlawful delegation,
stating that ‘‘the act contains as definite a description
of what constitutes a blighted area as is reasonably
possible to express;’’. With this conclusion we re-
spectfully disagree and point to the decision itself
for our support, keeping in mind that Section 33040
of the Act defines a ‘‘blighted area’’ as one character-
ized by ONE or more of the conditions set forth in
subsequent sections. At page 27 of the decision, the
Court below stated:
‘““We do not deem it necessary to determine
whether if only one of the designated conditions
characterizing a blighted area under the statute
exists, the statute could be enforced, as that ques-
‘tion is not before us * * *”
At page 30, the Court below stated:
‘‘While probably no one element of the blight
is sufficient to justify the taking by eminent do-
main, * *% #9?
At pages 52 and 53, the Court below sets up addi-
tional findings necessary before agencies proceed
under the Act:
‘‘Public agencies and courts both should be
chary of the use of the act unless, as here, there
is a situation where the blight is such that it
itutes a real hindrance to the development
“of the city and cannot be eliminated or improved
without public assistance.’’ a
“From these three statements it is evident that the
agency has not been supplied with a definite guide in
the exercise of the power which the Statute purports
to confer. Instead, the Statute empowers the agency
to determine, not when and where certain specified
conditions exist, but to determine what conditions not
included in the Statute constitute an area ‘‘blighted”’,
hence the delegation is unlawful.
In Schneider v. District of Columbia, supra, the
Court stated, on the question of legislative delegation
of power:
«“* * * the act of delegation must be sufficiently
explicit to enable the administrators to act with
administrative power and not impinge upon legis-
lative power, and also to enable a court to deter-
mine whether administrators are within the con-
stitutional grant.’’
Later, the same Court stated, in the same case:
‘*We are not told where we may ascertain what
a proper land coverage would be, or a building
arrangement without defect, or a street layout
without fault, or what is desirable economic use
or even socially desirable use of land, or what is
‘backward’ or ‘stagnant’, or what is ‘sound de-
velopment’. These criteria for seizure would be
formulated on a case-by-case basis.”’
This criticism is equally applicable in the instant
ease.
“Delegation to a fact-finding body of the power
to do something that is in itself circumscribed,
after facts are found, is not the delegation of a
legislative function. But where the delegation’ to
a fact-finding body empowers it to create the cons
ditions which constitute the facts, that is legis
lative.”’ ;
Wilson v. Philadelphia School Dist., 328 F
225, 237, 195 A. 90.
For the reasons above stated, it is respectfully su
mitted that the Statute violates Article ITI, Section | :
of the California Constitution, in that it unlawfu y
delegates legislative power, hence the exercise of thé:
power of eminent domain under that statute is i ‘
valid in the instant case and would deprive petitioner :
of property without due process of law.
CONCLUSION.
For the foregoing reasons, petitioners pray th t
this petition for Writ of Certiorari be granted. ~
Dated, San Francisco, California, a
May 12, 1954. ;
Respectfully submitted,
Martin J. JARVIS,
Attorney for Petitioners. —
, Jack H. WERCHICK,
Of Counsel.
(Appendices A and B Follow.)
Appendix A
“Community Redevelopment Law”’
| (Part I, Division 24, Sections 33000-33954 of the
' Health and Safety Code of the State of California.)
| Section 33040. ‘‘It is found and declared that there
exists in many communities blighted areas which con-
) stitute either social or economic liabilities, or both,
requiring redevelopment in the interest of the health,
safety, and general welfare of the people of such com-
‘munities and of the State. These blighted areas are
characterized by one or more of the conditions set
forth in Sections 33041 to 33044, inclusive.”
Section 33041. “A blighted area is characterized
by the existence of buildings and structures, used or
intended to be used for living, commercial, industrial,
or other purposes, or any combination of such uses,
“which are unfit or unsafe to occupy for such purposes
“and are conducive to ill health, transmission of dis-
“ease, infant mortality, juvenile delinquency, and crime
‘because of any one or a combination of the following
©) High density of population and overcrowding.
Inadequate provision for ventilation, light,
ation, open spaces, and recreation facilities.
Age, obsolescence, deterioration, dilapidation,
d character, or shifting of uses.”” :
Section 33042. ‘‘A blighted area is characterized
by:
(a) An economic dislocation, deterioration, or dis-
use, resulting from faulty planning.
(b) The subdividing and sale of lots of irregular
form and shape and inadequate size for proper use-
fulness and development.
(ec) The laying out of lots in disregard of the
contours and other physical characteristics of the
ground and surrounding conditions.
(d) The existence of inadequate streets, open
spaces, and utilities.
(e) The existence of lots or other areas which are
subject to being submerged by water.”
Section 33043. ‘‘A blighted area is characterized by
a prevalence of depreciated values, impaired invest-
ments, and social and economic maladjustment to such
an extent that the capacity to pay taxes is reduced
and tax receipts are inadequate for the cost of public
services rendered.”’
Section 33044. A blighted area is characterized by:
(a) In some parts of the blighted area, a growing
or total lack of proper utilization of areas, resulting
in a stagnant and unproductive condition of land po- ce
tentially useful and valuable for contributing to the —
public health, safety, and welfare.
(b) In other parts of the blighted area, a loss of —
population and reduction of proper utilization of the
area, resulting in its further deterioration and added
ae %
4 os
costs to the taxpayer for the creation of new public ©
iii
Section 33045. It is further found and declared
that:
(a) The existence of blighted areas characterized
by any or all of such conditions constitutes a serious
and growing menace which is condemned as injurious
and inimical to the public health, safety, and welfare
of the people of the communities in which they exist
and of the people of the State.
_ (b) Such blighted areas present difficulties and
handicaps which are beyond remedy and control
solely by regulatory processes in the exercise of the
police power.
(c) They contribute substantially and increasingly
to the problems of, and necessitate excessive and dis-
proportionate expenditures for, crime prevention, cor-
rection, prosecution, and punishment, the treatment of
juvenile delinquency, the preservation of the public
health and safety, and the maintaining of adequate
police, fire and accident ‘protection and other public
services and facilities.
(dq) This menace is becoming increasingly direct
and substantial in its significance and effect.
(e) The benefits which will result from the rem-
edying of such conditions and the redevelopment of
blighted areas will accrue to all the inhabitants and
property owners of the communities in which they
exist.
Section 33046. It is further found at Joclared
that:
(a) Such conditions of blight tend to further obso-
. ___ Tescence, deterioration, and disuse because of the lack
iv
of incentive to the individual landowner and his in-
ability to improve, modernize, or rehabilitate his
property while the condition of the neighboring prop-
erties remains unchanged.
(b) As a consequence the process of deterioration
of a blighted area frequently cannot be halted or cor-
rected except by redeveloping the entire area, or sub-
stantial portions of it.
(c) Such conditions of blight are chiefly found
in areas subdivided into small parcels, held in divided
and widely scattered ownerships, frequently under
defective titles, and in many such instances the pri-
vate assembly of the land in blighted areas for re-
development is so difficult and costly that it is un-
economic and as a practical matter impossible for
owners to undertake because of lack of the legal
power and excessive costs.
(d) The remedying of such conditions may re-
quire the public acquisition at fair prices of adequate
areas, the clearance of the arcas through demolition
of existing obsolete, inadequate, unsafe, and insani-
tary buildings, and the redevelopment of the areas
suffering from such conditions under proper super-
vision, with appropriate planning and continuing land
use and construction policies,
Section 33047. For these reasons it is declared to
be the policy of the State:
(a) To protect and promote the sound develop-
ment ‘and redevelopment of blighted areas and the
general welfare of the inhabitants of the communities
v
ditions through the employment of all appropriate
means.
(b) That whenever the redevelopment of blighted
areas cannot be accomplished by private enterprise
alone, without public participation and assistance in
the acquisition of land, in planning and in the finane-
ing of land assembly, in the work of clearance, and in
the making of improvements necessary therefor, it is
in the public interest to employ the power of eminent
domain, to advance or expend public funds for these
purposes, and to provide a means by which blighted
areas may be redeveloped or rehabilitated.
(c) That the redevelopment of blighted areas and
the provision for appropriate continuing land use
and construction policies in them constitute public
uses and purposes for which public money may be
advanced or expended and private property acquired,
and are governmental functions of state concern in
the interests of health, safety, and welfare of the
people of the State and of the communities in which
the areas exist.
(d) That the necessity in the public interest for
the provisions of this part is declared to be a matter
of legislative determination.
Section 33574. After the adoption of a tentative
plan for a project area, all applicants for building
permits in the area shall be advised by the building
department of the community that the site for which
a building permit is sought for the construction of
buildings or for other improvements is within a pro-
posed redevelopment project area.
Appendix .B
(Vol, 122 A.0.A. 836.)
In the District Court of Appeal
State of California
First Appellate District
Drvision ONE
1 Civil No. 15,893
Redevelopment Agency of the City and |
County of San Francisco, a public
body, corporate and politic, and The
City and County of San Francisco, @
municipal corporation,
Petitioners,
vs.
J. Joseph Hayes, Chairman of the Re-
development Agency of the City and
County of San Francisco,
Respondent,
Florence Van Hoff and Victor Berg,
on behalf of themselves individually
and all others similarly situated,
Interveners. |
Y¥
OPINION
Petition for writ of mandate to compel respond-
ent chairman of petitioner Redevelopment Agency of
2
the City and County of San Francisco* to execute cer-
tain loan and grant contracts with the United States
of America.
QUESTIONS PRESENTED
1. Have interveners the right to intervene?
2. Constitutionality of the Community Redevelop-
ment Law (Health & Saf. Code, pt. I, div. 24, §4 33000-
33954) 7 as applied to (1) slum clearance, (2) blighted
area.
RECORD
Respondent demurred and in answer to the peti-
tion denied none of the facts set forth in the petition,
but based his refusal to execute the contracts on the
alleged grounds of the unconstitutionality of the
act. Two taxpayers in the Diamond Heights Area,
Florence Van Hoff and Victor Berg, on behalf of
themselves and all others similarly situated, filed a
complaint in intervention in which they demurred to
the sufficiency of the petition on the ground that the
proposed proceedings of the Agency are prohibited by
the Fourteenth Amendment to the United States
Constitution, and article I, sections 1, 11, 13, 14, 14%,
21; article ITI, section 1, and article IV, sections 24,
31, of the California Constitution. They also an-
swered, denying certain allegations of the petition.
Thereupon petitioners demurred to the complaint
in intervention both generally and specially and on
= singe that interveners have no right to inter-
\
Heryafia> oohacred to ‘*the A gency. ”
tHereafter referred to aa ithe “‘the act.”
3
vene. Petitioners also moved to strike the whole and
all parts of the complaint in intervention on the
grounds of interveners’ lack of right and that the
complaint is sham, irrelevant and argumentative. At
the hearing, interveners’ demurrer to the petition
and petitioners’ demurrer to, and motion to strike,
the complain: were submitted.
PETITION
The petition sets forth that the Agency is a public
body corporate and politic created under the act, after
a declaration of the board of supervisors of the need
for such agency, and the fact that the city had satis-
fied the ‘“‘Community Prerequisites’”’ of the act in
that the city’s Planning Commission has a master
plan which includes all the matters required by the
act to be in such plan. The Agency has undertaken
a program for the elimination and redevelopment of
blighted areas, of which the first two are the ones to
be considered here, one being known as Western Ad-
dition Project and the other as Diamond Heights
Project. The petition then gives the steps taken ante-
cedent to the formulation of the redevelopment plans
for both projects. As no attack is made on the regu-
larity of those proceedings, they need not be detailed.
Certain facts are then alleged as to each area. West-
ern Addition is a blighted area which constitutes both
a social and economic liability requiring redevelop-
ment in the interest of the health, safety and general
welfare of the people of the city and state. It includes
approximately 28 blocks and is characterized. by
4
buildings used wholly or in part for residential pur-
poses, which because of age, obsolescence, deteriora-
tion, dilapidation, mixed character and shifting uses,
are unfit and unsafe for occupancy, and conducive
to ill health, infant mortality, juvemle delinquency
and crime. There are more than 2,000 substandard
dwellings and hundreds of rooms in dilapidated room-
ing houses and row dwellings. More than 60 per cent
of the dwelling units are dilapidated or lack private
baths; more than 40 per cent have more than twice
as many families than originally planned for; more
than 50 per cent have inadequate toilet facilities;
many lack installed heating; general use of portable
coal oil heaters and storage of inflammable material
constitute fire hazard; inadequate fire escape and
exits add to the hazard of the inhabitants; extreme
overcrowding is three and one-half times more prev-
alent in the area than in the city as a whole. The cor-
rection of these blighted conditions cannot be accom-
plished without redevelopment of the area as a whole,
nor by private enterprise alone and without public
participation. All of these conditions and this fact
have been found by resolution and ordinance of the
board of supervisors.
Diamond Heights is a blighted area constituting a
social and economic liability requiring redevelopment
in the interest of health, safety and general welfare.
It includes approximately 325 acres. Much of the area
was subdivided in 1863 and 1864; only 15 per cent
ef the arte is oecupied or used; 4 per cent is in im-
proved. boundary streets; 5 per cent playgrounds;
5
less than 6 per cent interior streets and dwellings.
Such unuse and lack of development is due to lots of
irregular form and shape having been laid out with-
out regard to the contours and other physical charac-
teristics of the ground such as cliffs, steep gradings
and outcroppings of rock; more than 500 parcels are
in separate ownership which makes it impossible to
effectively assemble the land by private means with-
out public assistance and exercise of the power of
eminent domain; there is wasteful street design, un-
suited and unadapted to the topography of the area;
mapped streets of usable grade are connected with
mapped streets of unusable grade, so steep as to
render impossible the construction of usable streets;
one-third of said streets are too steep to be usable;
66 acres of such mapped streets remain unpaved and
undeveloped, there being only 1.4 acres of paved
streets. The major portion of the area is unserved
by utilities of any kind; existing public open spaces
would be inadequate to serve the area if built up.
Approximately 85 per cent of the area is vacant and
undeveloped; 115 acres are in private ownership, of
which only 17.8 acres are improved with houses, the
remainder of the private ownership improvements
consisting of truck yards, deteriorating sheds and two
quarries. As a result of said faulty planning there is
an economic dislocation and disuse of the area; a
subdivision of lots into irregular form and shape and
inadequate size for proper use and development; a
layout of lots in disregard of the contours and other
physical characteristics of the ground and surround-
ing conditions; nonexistence of adequate streets and
utilities in the area. The area is characterized by the
growing or total lack of proper utilization resulting
in stagnant and unproductive condition of land po-
tentially useful and available for contributing to the
public health, safety and general welfare. The blight-
ed condition is aggravated by the shortage of useful
land in the city for resid:ntial development to al-
leviate the acute housing suortage and tends to render
the lands unmarketable and thereby to force an ab-
normal pattern of residential growth.
Redevelopment is necessary to facilitate the re-
development of congested, deteriorated areas in other
sections of the city, particularly in Western Addition.
Correction cannot be accomplished without redevelop-
ment of the areas as a whole. This cannot be done by
private enterprise alone without public participation
and assistance. All of the above has been found by
the board of supervisors by resolution and ordinance.
Interveners admit the factual characteristics of the
area but deny the conclusions and point out that for
_ a long time past 210 acres have been and still are in
public ownership.
The redevelopment of both projects requires (1)
acquisition of lands by purchase or eminent domain,
(2) demolition and clearance, (3) vacation and
abandonment of certain street areas and dedication of
other areas for street widening and other improve-
ments and the consolidation of certain blocks into
eontinuows land areas, (4) rough grading and in-
7
stallation of necessary site improvements and util-
ities, (5) replatting and zoning in conformity with
the city’s master plan, (6) disposition of said lands
as improved by sale under suitable safeguards, re-
strictions, covenants and conditions as set forth in
certain ordinances. Such redevelopment will elimi-
nate the blight conditions alleged by providing: clear-
ance, elimination and prevention of slum and blighted
areas; a proper, well-planned, economic utilization of
said areas; adequate open spaces; utilities; streets
designed to carry fast through traffic while closing
off traffic on other streets, thereby contributing to
the safety of the inhabitants of the areas; school, shop-
ping and other community facilities; improved. lands
near the center of the city for the construction of
needed dwelling units; a substantial increase in the
number of safe and sanitary dwelling units to ease
the acute housing shortage.
Title I of the Housing Act of 1949 (P. L. in, 8ist
Congress, 42 U.S.C. § 1451 et seq.) authorizes certain
financial assistance to petitioners to aid in this re-
development. Pursuant to applications filed by the
Agency with the Housing and Home Finance 'Ad-
ministrator, the administrator has advanced to the
Agency $517,160.82, in addition to which the city has
provided $78,962 to the Agency. On June 4, 1953, the
Agency adopted a resolution directing respondent, as
its chairman, to execute on behalf of the Agency a
contract with the United States of America for a
loan of $16,022,000 and a capital grant of $6,012,000
to aid in financing Western Addition Project and a
contract for the loan of $5,049,000 and a capital grant
of $334,000 to aid in financing Diamond Heights.
Project, both of which contracts have been approved
by the board of supervisors. To satisfy the require-
ments of said eontracts the city has undertaken to
provide local grants-in-aid of $3,279,600 for Western
Addition and $2,711,000 for Diamond Heights. The
contracts have been executed by the administrator but
respondent refuses to execute them.
Accompanying the pétition are exhibits containing
the various resolutions and ordinances of the board
of supervisors, the tentative plans of the projects, re-
ports on and photographs of the areas and other data.
1. Rigur to INTERVENE
- Interveners are taxpayers of the city and county
of San Francisco and residents and property owners
in: the Diamond Heights area. Obviously they have
‘tan interest in the matter in litigation’’ (Code Civ.
Proe. § 387) and therefore may be permitted to in-
tervene. In People ex rel. Fogg v. ‘Perris Irr. Dtst.,
182 Cal, 289 [64 P. 399, 773], it is held that an inter-
vener is entitled to all the procedure and remedies to
which: the respondent would be entitled to resist pe-
tioner’s claims. In Boskowitz v. Thompson, 144 Cal.
724 [78 P. 290], it is held that the intervener is
‘limited to the same procedure and remedies as is
iginal. party.” In Wright v. Jordam, 192 Cal.
ted (p. 714 [221 P. 915]): “As to the
9
interveners herein it will suffice to say that while
they were permitted to intervene to the extent and
for the purpose of sustaining or opposing the respec-
tive contentions of the petitioners and respondent
herein, their rights as interveners herein go no fur-
ther, since they cannot be heard to broaden the scope
or function of this special proceeding by urging
claims or contentions which have their proper forum
elsewhere, and in which forum they are already em-
battled.’’
In our case respondent expressly raises no issue
on the facts set forth in the petition. Interveners in
their complaint admit most of these facts although
they strenuously deny the conclusions drawn by pe-
titioners therefrom. Under the situation in this case
and because of the limited facilities of this court to
conduct a trial on factual issues, we deem it unneces-
sary to determine whether we have the power to per-
mit interveners to raise issues of fact, but deem it
better to confine the issues to those of law, leaving
the factual issues, if any, to be determined in a tri-
bunal better adapted to trying them. Therefore we will
grant petitioners’ motion to strike all of the com-
plaint in intervention except those portions consti-
tuting a demurrer.
2. OoNSTITUTIONALITY. See
(a) Slum Clearance. (ed
Although the two projects are a part of one pro-
gram (undoubtedly other similar projects are to fol-
10
low) the character of the two areas proposed to be
redeveloped are radically different. While the attack
on the constitutionality of the act is basically on the
fact that after the taking of private property by the
power of eminent domain, if necessary, and after its
redevelopment, it is to be sold to private persons,
the difference in character of the areas presents dif-
ferent legal problems. Therefore we will consider the
projects separately.
Clearly, Western Addition is a blighted area of the
type usually referred to as a “‘slum.”’ “‘ ‘It is gen-
erally accepted that a slum area is one, which because
of lack of adequate open spaces and community fa-
cilities, and because of a preponderance of substand-
ard buildings, does not provide an environment in
accordance with the accepted standard of urban
neighborhood life.’”’ (Dissenting opinion of Van
Voorhis, J., in Kaskel v. Impellitteri (N.Y.), 115
N.E.2d 659, 670, quoting from report of William G.
Viadeck, Chief of Planning of the New York City
Housing Authority.) Likewise, it comes within the
definition of blighted area given in section 33041,
Health and Safety Code: ‘‘A blighted area is char-
acterized by the existence of buildings and structures,
used or intended to be used for living, commercial,
industrial, or other purposes, or any combination of
such uses, which are unfit or unsafe to occupy for
such purposes and are conducive to ill health, trans-
mission of ees infant mortality, juvenile delin-
' . \
11
queney, and crime because of any one or a combina-
tion of the following factors:
‘(a) Defective design and character of physical
construction.
“‘(b) Faulty interior arrangement and exterior
spacing.
‘“‘(e) High density of population and overcrowd-
ing. |
‘‘(d) Inadequate provision for ventilation, light,
sanitation, open spaces, and recreation facilities.
““(e) Age, obsolescence, deterioration, dilapida-
tion, mixed character, or shifting of uses.”
Statutory or constitutional provisions authorizing
local public agencies to undertake urban development
projects for slum clearance have been adopted in at
least 37 states.* Their validity has been almost uni-
formly upheld.7
The precise question involved here has never been
passed on in this state. The fact that the elimination
of slums and the erection of safe and sanitary low-
rent dwelling units for persons of the prescribed re-
stricted income advances the public welfare and pro-
tects the public safety and morals and are in fact and
law public purposes was determined in Housing Au-
thority v. Dockwetler, 14 Cal.2d 437 [94 P.2d 794].
There the constitutionality of the Housing Coopera-
tion Law (2 Deering’s Gen. Laws Supp., Act 3484)
*See list in Kaskel v. Impellitters, 115 N.E.2d at p, 670.
+See list of authorities, idem, 115 N.E.2d at p. 670.
12
ineluding the right of the public agency to use the
power of eminent domain for slum clearance was up-
held. That act, however, did not contemplate resale
of the property condemned. Community Redevelop-
ment Laws practically similar to our act in other
states in their slum clearance aspects have been up-
held with two exceptions. In the following cases the
statute applied provided for the use, if necessary, of
the power of eminent domain to obtain slum areas,
their redevelopment and their sale and/or lease to
private persons. In practically all of them the same
federal constitutional questions were raised as in our
case. In many of them the same questions were raised
as to the particular state constitution as are raised
as to the California Constitution in our case. In all of
these cases the particular statute was upheld. These
cases are: Opinion of the Justices (1950) 254 Ala.
343 [48 So.2d 757]; Rowe v. Housing Authority
(1952), 220 Ark. 698 [249 S.W.2d 551]; Zurn v. City
of Chicago (1945), 389 Ill. 18 [59 N.H.2d 18]; People
ex rel. Tuohy v. City of Chicago (1946), 394 Ill. 477
[68 N.£.2d 761]; ‘People ex rel. Tuohy v. City of Chi-
cago (1948), 399 Ti, 551 [78 NE.2d 285]; Chicago
Land Clearance Com. vs. White (1952), 411 Til 310
[104 N.E.2d 236]; In re Shum Clearance in City of
Detroit (1951), 331 Mich. 714 [50 N.W.2d 340]; State
ex rel, Bruestle v. Rich (1953), 150 Ohio St. 13 [110
.E2d 178]; Belovsky v. Redevelopment ‘Authority
(1947) 857 Pa. 329 [54 A2a 277, 172 ALR. 953);
Galton ee Serena, CNG 78 Fah Pee [69 Aad
13
531]; Ajootian v. Providence Redevelopment Agency
(1952), —— B.L —— [91 A.2d 21]; Nashville Hous-
ing Authority v. City of Nashville (1951), —— Tenn.
—— {237 S.W.2d 946); Foeller v. Housing Authori-
ty of Portiand (1952), —— Ore. —— (256 P2d 752];
Hunter v. Norfolk Redevelopment & Housing Aw-
thority (1953), —— Va. —— [78 S8.E.2d 893].
The only cases which have failed to uphold statutes
similar to ours are Adams v. Housing ‘Authority of
City of Daytona Beach (1952), —— Fla. —— [60
So.2d 663], and Housing ‘Authority of City of Atlanta
v. Johnson (1953), 209 Ga. 560 [74 S.E.2d 891]. The
majority opinion in the Florida case determined that
the Florida Housing Authority Act which authorized
slum clearance followed by the construction of hous-
ing for people of small income was not to provide
housing but to authorize the acquisition of property in
slum areas so that it could be sold to private investors
for industrial uses. It acknowledged that redevelop-
ment acts “have been upheld by some of the courts
of last resort of other states’”’ (p. 665) without citing
any decisions or discussing them. It then stated: “We
have our own Constitation and adjudicated cases by
this Court which are controlling * * * ” In the
Georgia ease the public authority was to acquire slum
property, remove the buildings from it and then sell
the unimproved property to industrial enterprises.
The evurt after referring to the fact that it had pre-
viously sustained as valid the Georgia Housing 4 Au-
thorities Law ‘‘not without some misgivings on “the
14
part of some members of the court’’ stated: ‘“‘We
know that some courts of other jurisdictions have
held that this can be done, and others have held that
it cannot be done. What constitutes a ‘public use’
under the Constitution and laws of Georgia is a ques-
tion that must be decided by the courts of this State,
and what some other jurisdiction may have decided
is in no way binding.’’ (P. 893.) The decision neither
cited nor discussed the decisions which it mentioned.
The court apparently was influenced in its decision
by the fact that the act did not require new housing
to be erected on the slum area before turning it over
to private interests. That the court is not in step with
modern judicial thought is indicated by its rejection
of the argument that removal of slums might decrease
juvenile delinquency by saying, ‘‘We think juvenile
delinquency exists on both sides of the railroad
tracks * * * ”’ The two cases last mentioned are not
even persuasive authority in the face of the above-
mentioned weight of authority.
The latest cases on the subject are Kaskel v. Im-
pellitter:, supra, 115 N.E.2d 659, and Schneider v. Dis-
trict of Columbia, 116 F. Supp. .* In the Kaskel
case the validity of proceedings for redevelopment of
the ‘‘substandard and insanitary’’ Columbus Circle
area in New York City was upheld. The Schneider
case, decided November 5, 1953, contains a well-rea-
soned discussion of the questions arising from the
Cireit Jug and Curran and Kesh, Dis
poe Ege, cant
15
application of the District of Columbia Redevelop-
ment Act, an act quite similar to our act. The
Schneider case was actually two cases consolidated
for trial, each dealing with a different type of area,
one a slum area, and the other an area somewhat
comparable to our Diamond Heights area. As applied
to the slum area the court held the District of Colum-
bia Redevelopment Act valid. We will discuss its
application to the other area when we discuss the
Diamond Heights problem. The main attack made on
the District of Columbia act, as is the attack here,
was that it authorized the taking by eminent domain
of the fee title to private property and the sale or
lease of that title to other private persons for private
use. The court first pointed out that there is no doubt
of the power of Congress to delegate to the district
government the power to clear slums, such power
lying within the well-established concepts of police
power, namely, the protection of the public health,
safety, morals and welfare, and that the clearance
of slums is a public purpose to which the power of
eminent domain applies. Moreover, it may be exer-
cised not only to eliminate present slums but to pre-
vent future slums. It should be pointed out here that
the power of eminent domain applies only to the tak-
ing of property for a ‘‘public use.”’ Originally the
definition of ‘‘publie use’’ was very narrowly re-
stricted. Even low cost public housing which is now
universally accepted as a public use, originally would
have not been included in the definition. As pointed
16
out in the Schneider case, the more modern courts
have enlarged the traditional definition of public use
to include ‘‘public purpose.”’ The idea now is that the
taking of the property itself, as distinguished from
the subsequent use of that property, may be required
in the public interest. The case then holds that the
taking of real property for the public purpose of
eliminating or of preventing slums is within the
power of eminent domain, even though the use to
which the property is put after seizure is not a public
use, provided (1) that the seizure of the title is nec-
essary to the elimination of the slum, or (2) that the
proposed disposition of the title may reasonably be
expected to prevent the otherwise probable develop-
ment of a slum. Ordinarily, title to real estate cannot
be seized by the public body ‘“‘merely because a slum
presently exists upon the land. Some further ne-
cessitous circumstance must exist to validate such a
seizure. It must be either that the clearance of the
slum is impracticable without taking the title to the
land or that proposed restrictions which can be im-
posed only through the medium of a resale are fairly
calculated to prevent recurrence of slum conditions.”’
(Schneider case, p. ——.) The Western Addition
Project meets this test.
The Legislature has declared that slum conditions
are injurious to the public health, safety, morals and
welfare, and that to eliminate substandard housing
and other slum conditions acquisition of property by
eminent domain is necessary. Here the city and the
agency officials tio whom the Legislature has delegat-
17
ed the authority to determine whether such conditions
exist and what property is necessary to be taken for
the public purpose of eliminating those conditions
have acted. We find nothing in the record to indicate
that their determination is unreasonable or beyond
their powers.
(b) Diamond Heights.
It is not contended that Diamond Heights consti-
tutes a slum area. Its claimed necessity for redevelop-
ment is its economic dislocation and disuse. It comes
within the terms of section 33042 of the Health and
Safety Code: ‘‘A blighted area is characterized by:
(a) An economic dislocation, deterioration, or
disuse, resulting from faulty planning.
“‘(b) The subdividing and sale of lots of irregular
form and shape and inadequate size for proper use-
fulness and development.
(¢) The laying out of lots in disregard of the
contours and other physical characteristics of the
ground and surrounding conditions.
‘‘(d) The existence of inadequate streets, open
spaces, and utilities * * * ’”
We have not included subdivision (e) Seatirig: with
submerged lots. as there are none in the Diamond
Heights area.
eg ry nr :
from areas of the type of Diamond Heights ve
areas factually
ail refer to the latver aa “deteriorated” areas, areas, not as a '
scription but merely as a word of reference.
18
There are not as many cases dealing with redevel-
opment statutes concerning deteriorated areas, nor
are they as uniform in their decisions as are those
concerning slum areas. We have been cited to and
found only five cases discussing the subject. The lat-
est is Schneider v. District of Columbia, supra, 116
F.Supp. ——-, which, as we have shown, upheld the
validity of the District of Columbia Redevelopment
Act as related to slum clearance. However, it held
the act invalid as related to deteriorated areas, stat-
ing that Congress in legislating, for the district has
no power to authorize the seizure by eminent domain
of property for the solé purpose of redeveloping the
area according to its, or its agent’s, judgment of what
a well-developed, well-balanced neighborhood would
be.
The case then considers one further situation, i. e.,
where a part of the deteriorated area contains slums.
It holds that only that portion of the area geograph-
ically necessary to the elimination of slums may be
taken.
The court distinguishes Foeller v. Housing Authori-
ty of ‘Portland, supra, 256 P.2d 752, and Schenck v.
City of Pittsburgh, infra, 364 Pa. 31 [70 A.2d 612],
in both of which cases the properties seized were de-
veloped for nonresidential purposes, by pointing out
that in each case the seizure and resale of the prop-
erties was a clear method of serving two purposes,
(1) to pre nt the recreation of slums, and (2) to
enlarge the potential activity upon which the ried
19
lived. The court seemed to consider that the first
purpose could exist alone but that the second purpose
must be concomitant with the first. It referred to
Fallbrook Irr. Dist. v. Bradley (1896), 164 U. 8. 112
[17 S.Ct. 56, 41 L.Ed. 369], which involved an irriga-
tion act of the State of California and the question
was whether the construction of irrigation works is a
publie purpose, and also to Clark v. Nash (1906), 198
U.S. 361 [25 S.Ct. 676, 49 L.Ed. 1085], where the doc-
trine of the Fallbrook case was applied to an irriga-
tion project in the state of Utah, although the project,
authorized by a state statute, was the condemnation
of land by an individual for the purpose of irrigating
his own land, and other cases. Concerning these and
the Foeller and Schenck cases, supra, the court said
that the basis of the decisions was ‘‘meeting a com-
pelling community economic need is a public pur-
pose.’’ It then referred to People of Puerto Rico v.
Eastern Sugar Associates (1946), 156 F.2d 316, cer-
tiorari denied 329 U.S. 772 [67 S.Ct. 190, 91 L.Ed.
664], which considered a statute of the insular Legis-
lature embodying a far-reaching program of agrarian
reform designed to remedy desperate economic con-
ditions existing in the islands. The act authorized the
seizure of large holdings of land used for the raising
of sugar, especially that owned by corporations, and
the redistribution of the land to individuals in small
parcels. The statute was upheld upon the publie nec-
essity for solution of the genera! and acute conditions
and upon the conclusion that the statute was reason-
ably calculated to deal with these problems,
Thus, the Schneider decision recognizes that prop-
erty may be taken for redevelopment for other than
purely slum clearance purposes, namely, to meet a
compelling community economic need. The case then
considers whether as to the nonslum area in the Dis-
trict of Columbia the proposed taking was to meet
such need. It states that the redevelopment plan is
based on the opinion of its proponents that residen-
tial neighborhoods should be ‘‘well-balanced’’ and
that the area should contain housing for all income
groups. It points out that ‘‘No acute housing short-
age is to be met’’; in fact, the plan contemplates no
more residents after redevelopment than now. ‘‘No
pressing economic condition’”’ is shown. No purpose
of housing for the needy is shown. ‘‘No rearrange-
ment of streets is contemplated,’’ the streets in the
project area being continuous lines of the streets in
other parts of the District of Columbia. ‘‘In sum the
purpose of the plan, in addition to the elimination of
slum conditions, is to create a pleasant neighborhood,
in which people in well-balanced proportions as to in-
come may live.’’ The court then states: ‘‘But as yet
the courts have not come to call such pleasant. ac-
complishments a public purpose which validates Gov-
ernment seizure of private property. The claim of
Government power for such purposes runs squarely
into the right of the individual to own property and
to use it as he pleases. Absent impingement upon
ee et dae
wales IES for the property, the ie
21
right is superior to all rights of the Government and
is impregnable to the efforts of government to seize
it. That the individual is in a low-income group or in
a high-income group or falls in the middle of the
groups is wholly immaterial. One man’s land cannot
be seized by the Government and sold to another man
merely in order that the purchaser may build upon it
a better house or a house which better meets the Gov-
ernment’s idea of what is appropriate or well de-
signed.’’ It should be noted that the act involved in
the Schneider case (60 Stats. 790) refers only to
‘substandard housing and blighted areas.’’ It con-
tains no definition of ‘‘blighted area’’ similar to that
contained in section 33042, Health and Safety Code.
We are in accord with the Schneider decision that
where no compelling community economic need is
shown, the power of eminent domain may not be used.
As hereafter shown, there appears to be such need in
Diamond Heights. i
The next most recent case is Kaskel v. Impellitteri,
supra, 115 N.E.2d 659. There the appropriate New
York municipal body proceeded under section 12k
of the General Municipal Law to find that a Colum-
bus Circle area was “‘substandard and insanitary”’
and to plan a project for the removal of all buildings
in it, redevelop it and then sell or lease portions of
the area to private concerns. A taxpayer brought suit
contesting the finding that the area was substandard
and insanitary and asked that a court trial be'had to
- determine that quéstion. The majority opinion which
held that as there was ample evidence to justify the
22
City Planning Commission’s findimgs and there was
no charge that it acted corruptly or arbitrarily, the
courts could go no further into this subject, adopts
the minority opinion on all other questions in the
case. It is held that the statute providing for slum
clearance (§72-k of the General Municipal Law) is
constitutional but can only be applied if the project
is primarily for slum clearance. The minority opinion
was to the effect that there was evidence supporting
the plaintiff’s claim that the area was not a slum
area and slum clearance was not the primary object
of the project but was secondary to turning the prop-
erty over to private enterprise for the construction
and operation of a sports coliseum; therefore, the
case should be tried to determine the true factual
situation.
People v. City of Chicago, swpra, 111 N.E.2d 626
(March, 1953), involved the validity of the 1949
amendments to the Illinois Blighted Areas Redevel-
opment Act of 1947. As originally enacted that act
was limited to ‘‘slum and blighted’? areas—in sub-
stance, what we have considered here ‘‘slum areas”’
only—provided for their elimination and the con-
struction of redevelopment projects financed by pri-
vate capital. The amendment broadened the definition
of “blighted areas” to include practically the same
conditions set forth in section 33042 of the Health and
Safety Code. Following the procedure provided in the
act the Chicago Land Clearance Commission deter-
mined a ¢ertain 40-acre area to be blighted. There-
upon a private corporation submitted to the commis-
23
sion a redevelopment plan whereby it was to acquire
the property, construct dwelling units thereon and
sell them to private buyers. This plan required the
use of public funds and the power of eminent domain. '
A quo warranto proceeding was brought to determine
the validity of the amendment and the proposed pro-
cedure. No attack was made on the act as originally
enacted as its validity had been sustained in People
ex rel. Tuohy v. City of Chicago, supra, 78 N.E.2d
285, and Chicago Land Clearance Com. v. White,
supra, 104 N.E.2d 236. While there is mention of slum
eradication in the case, a study of it indicates that
the question presented was clearly whether the ac-
quisition of vacant land areas by a public agency for
subsequent sale to private interests for development
for residential use was an acquisition for a public
use or public purpose permitting eminent domain to
be employed. There was no slum condition in the
area to be taken. The tie-in with slum eradication is
based upon the statement that the development of
areas for providing additional housing is necessary
as an adjunct of clearing slum areas. “‘So far as we
are aware, this is the first case in which governmental
efforts to deal with unmarketable areas of vacant
land have received. judicial consideration * * * What
is involved here is, by the definition of the statute, an
area which, because of characteristics of scattered
ownership, undesirable platting, deteriorated site im-
provements, or excessive tax delinquencies, has in fact
become unmarketable and because of its unmarket-
24
ability has distorted the normal development of the
community. |
“The deleterious effect of such areas has been rec-
ognized by the Congress which has provided for Fed-
eral assistance in eliminating ‘land which is predomi-
nately open and which because of obsolete platting,
diversity of ownership, deterioration of structures or
of site improvements, or otherwise substantially im-
pairs or arrests the sound growth of the community
** *? (42 U.S.C.A,, par. 1460.) In the statute here
involved, and in another statute known as the Blight-
ed Vacant Areas Development Act of 1949 (Tll. Rev.
Stat. 1949, chap. 6714, pars. 91.1-91.7), the General
Assembly of Illinois has recognized that such vacant
areas in their present condition are incapable of de-
velopment for housing purposes by private enterprise.
They are characterized as economic, social and phys-
ical waste lands, the elimination and development of
which is declared to be a public use.” (P. 634.)
The court then held that the amendment was valid
and constitutional. ‘‘The purpose and use to which
the vacant blighted property is to be taken is both a
public purpose and a public use, since the taking
tends to alleviate a housing shortage, is an essential
aid and adjunct to slum clearance, removes hazards to
health, safety, welfare and morals of the community
by developing the area, and eliminates factors im-
pairing and arresting sound community growth.” (P.
a
The minority opinion points out that the majority
opinion holds that the acquisition of vacant land and
its development for residential uses even though un-
restricted to low-rent accommodations is sufficiently
related to the subject of slum clearance as to consti-
tute the taking of land for a public use, a holding
with which the minority opinion disagrees.
Foeller v. Housing ‘Authority of Portland, supra,
256 P.2d 752 (1952), was brought to determine the
validity of Oregon’s Urban Redevelopment Law.
While the project under consideration there was to
take an area 53.8 per cent residential and redevelop
it into an area completely commercial or industrial,
the court held that the primary purpose was to pre-
vent the development of slum conditions in that area.
The case cannot be considered authority as to the
situation where the area to be taken is a deteriorated
one solely.
Thus we find that the only case which upheld the
validity of a redevelopment statute as applied to a
nonslum area is the City of Chicago case, and even
in that case the court felt constrained to tie in the
principle of the slum clearance cases by stating that
providing housing was an adjunct of slum clearance.
This constitutes a very elastic tie, for, based on that
theory, any project of redevelopment could be sup-
ported as slum prevention if only it provided addi-
tional housing.
However, it appears from the eases on ae
domain dealing with a new subject to which the pow-
26
er is attempted to be applied that the right to its
use depends upon what is referred to in the Schneider
case as a ‘‘compelling community economic need.’’
Our task, then, is to determine first whether the act
is based on such a requirement, and secondly, whether
in its application to the Diamond Heights Project
such a need is shown. As to the basis of the act—in
addition to sections 33041 and 33042, Health and
Safety Code, heretofore quoted, there are a number
of other significant sections. Section 33040 finds that
in many communities there exist blighted areas which
constitute social or economic liabilities, requiring re-
development in the interest of the health, safety and
general welfare of the people. These blighted areas
are characterized by one or more of the conditions set
forth in sections 33041-33044, inclusive. Section 33043
additionally characterizes a blighted area by a preva-
lence of depreciated values, impaired investments and
social and economic maladjustments reducing the
capacity to pay taxes so that tax receipts are inade-
quate for the cost of public services rendered. Section
33044 additionally characterizes a blighted area as
one where in some parts a growing or total lack of
proper utilization of areas results in a stagnant and
unproductive condition of land potentially useful and
valuable for contributing to the public health, safety
and welfare. The section further refers to a loss of
population and reduction of proper utilization of the
area, resulting in its further deterioration and added
costs to the taxpayer for the creation of new public
facilities and*services elsewhere. Section 33045 de-
27
elares the policy that the existence of blighted areas
characterized by any or all of the conditions in the
preceding sections constitutes a rising menace to pub-
lic health, safety and welfare, cannot be remedied by
use of the police power, necessitates excessive ex-
penditures, and their removal is of benefit to the
local population and property owners. Section 33046
continues the declaration of policy that such condi-
tions cause continuing deterioration and disuse, that
the blight cannot be corrected except by redeveloping
the entire area, or substantial portions of it, that
there is an impracticability of private assembly of
small parcels in scattered ownership, and as a prac-
tical matter is so difficult and costly and lacking in
legal power as to make it impossible to remedy by
private owners. The only practical remedy is by pub-
lie acquisition, clearance and planned redevelopment.
Section 33047 declares that to protect and promote
the sound development and redevelopment of blighted
areas and the general welfare, these conditions should
be remedied by all appropriate means including the
expenditure of public funds and the use of eminent
domain, and that the necessity of redevelopment in
the interests of health, safety and welfare of the
people is a matter of legislative determination.
We do not deem it necessary to determine whether
if only one of the designated conditions characterizing
a blighted area under the statute exists, the statute
could be enforced, as that question is not before us.
However, it is clear that a combination of many of
them establishes a menace to the health, safety and
general welfare of the people of the community, and
if such menace cannot be removed by private capital
or police power, and requires redevelopment as out-
lined in the act, there would then exist a compelling
community economic need.
APPLICATION TO DiamonD HeEIGHTs ProyEct
This brings us to the question as to whether the
petition shows a compelling community economic need
for the project. Accompanying the petition are a
series of exhibits setting forth the proceedings taken
by the various ¢ity and county authorities, plans of
the project, reports considered, maps of the present
areas, and maps showing the projected uses to be
made of the area. From these, it appears that the
board of supervisors found, based upon substantial
evidence, that the Diamond Heights area is a blighted
one characterized, at least, by the conditons set forth
in sections 33042 (a) to (d), inclusive, 33044, 33045,
33046 and 33047.
The record shows that approximately 85 per cent
of the area consists of vacant land which is in a state
of economic disuse because private enterprise in the
absence of governmental assistance cannot redevelop
it in the community interest. This is due to the grid-
iron pattern of streets of approximately 66 acres of
unimproved streets not adapted to the contour of the
land, unsuited to the topography and too steep to be
usable; to the fact that lots of irregular form and
shape, many. of them excessively long and narrow,
have been laid out in disregard of the contours and
other physical characteristics of the ground such as
cliffs, outcroppings of rock, and steep grades. There
are 500 lots owned by separate individuals whose
holdings vary in size from lots of 25 feet width to
parcels of half an acre. Only 15 percent of the area
is used. There is a shortage of land in San Francisco
and the welfare of the people requires that this un-
productive area be used for dwelling and public
places. In many instances the blighted condition of
the area has resulted in sale of property to the state
for delinquent taxes, The tentative plan shows that
other than the public places the redevelopment is to
be predominantly residential, consisting of single-
family houses and multifamily houses. Open space,
commercial, public (firehouse, schools, park, play-
grounds), institutional (churches, nursery schools,
community buildings, and other uses are planned. It
is not sufficient to say that the streets can be changed
by ordinary eminent domain and street proceedings.
Because of the peculiar layout of the streets as now
shown on the map, the cost of abandonment proceed-
ings and eminent domain proceedings would prac-
tically be prohibitive for, because of the many owner-
ships and the irregularity of the parcels, the cost of
the taking and resultant damage to the parts not
taken would nearly equal the entire value of the
private areas. While a large part of the area is in
public ownership and could be developed by the au-
thorities, it is so broken and interspersed with pri-
vate qunerahipe ap to. zaquine, 9: qanailonntion af he
whole area.
30
While probably no one element of the blight is
sufficient to justify the taking by eminent domain,
the combination of a great and pressing demand for
more housing, the correlation of the area with other
areas of the city, by streets and public places, the fact
that without governmental help the area cannot be
developed and will continue to deteriorate, together
with all the circumstances shown by the record, dem-
onstrate the compelling community economic need
required to permit the application of the act.
Interveners contend that there is no necessity for
the proposed Diamond Heights plan inasmuch as the
private owners have had no opportunity to develop
the area because 65 per cent of it has been held by
public agencies, and the failure of the latter to act is
a cause of the present condition. They claim that the
area could have been developed many years ago when
building costs were lower, the labor supply was more
abundant, materials were available, and loans for
construction were available at much lower rates. Re-
gardless of the reason for the condition, and what
might have been done, we are confronted with the
present condition. Interveners contend that there is
no demand for dwellings of the class contemplated
by the plan. This question is one for the city and the
agency to determine.
Trrmte oF THE AcT
All of the points raised against.the validity of the
act have already been determined in the cases herein
31
cited. However, we will discuss in more detail these
points, without attempting to cite all the cases con-
sidering the particular point. Thus the claim that the
act embraces more than one subject which are not
expressed in the title—‘‘An act to consolidate and
revise the law relating to community redevelopment
and housing for the preservation of the public health
and safety, and the formation, regulation, and opera-
tion of corporations therefor, by adding Division 24
and Section 40021 to the Health and Safety Code,
and repealing certain acts specified herein’’—is simi-
lar to the claim made in People v. City of Chicago,
supra, 111 N.E.2d 626, concerning the Illinois Blight-
ed Area Development Act. The court said (p. 632).
‘“‘An act may include all matters germane to its gen-
eral subject, including the means reasonably neces-
sary or appropriate to the accomplishment of the
legislative purpose * * * To render a provision in the
body of a statute void as not embraced in the title,
the provision must be one which is incongruous, or
which has no proper connection with the title.” The
court then pointed out that there was an interrelation
between all the matters permitted by the act and
found that they were germane to the single subject
of redevelopment of blighted areas, That case holds
that there is an interrelation between slum clearance
and the elimination of stagnant vacant areas. Rede-
velopment, contrary to interveners’ contention, is not
necessarily confined to the one term ‘build up,”’ in
the sense that it can only be applied to changing a
built-up area. All of the matters provided for in our
82
statute are germane to ‘‘community redevelopment
and housing for the preservation of the public health
and safety.’’ ‘‘In our opinion, the interrelationships
between slum clearance, the revitalization of ‘dead’
areas like that here involved, and the construction of
additional housing which have thus been recognized
by Congress, the. Gereral Assembly and this court,
amply justify the legislature in regarding the mat-
ters involved in the present statute as germane to a
single subject—the elimination of slums.’’ (People
v. City of Chicago, supra, 111 N.E.2d at p. 633.)
A somewhat similar contention was held unfounded
in Foeller v. Housing Authority of Portland, supra,
256 P.2d 752, the court saying that the act ‘‘contains
only one subject; that is, the revitalization of blighted
areas. All else in the act is ‘properly connected there-
with.’ ’’ (P..777.) See, also, City of Whittier v. Dizon,
24 Cal2d 664 [151 P.2d 5, 153 A.L.R. 956], concern-
ing the sufficiency of the Vehicle Parking District
Act of 1943.
Pusiic PURPOSE
The contention that the proposed Diamond Heights
plan does not constitute a public use, is answered in
Oliver v. City of Clairton, Supreme Court of Penn-
sylvania, March, 1953, 374 Pa. 333 [98 A.2d 47].
While in that case there was some slum clearance in-
volved, it appears that the main attack on the rede-
velopment, plan was that the area was not a blighted
one because.so much of it was vacant land. There the
five acres which were to be redeveloped for heavy _
32.
industrial purposes, consisted of 58 residential lots
which, however, were not actually laid out with open
streets; there were seven small buildings in that area,
and over 90 per cent of the land was vacant and un-
improved. The assessed valuations over a decade had
decreased, 15 of the lots were delinquent for many
years in taxes, and the ownership of the lots was
divided among approximately 22 individuals. Except
for the fact that half of the few dwellings involved
were substandard or slum grade, the situation was
similar in many respects to that in Diamond Heights.
Appellant there contended that as a large part of the
area consisted of vacant land it could not be treated
as blighted area. The court pointed out that, just as
is the situation with regard to our act, there was
nothing in the Pennsylvania act limiting the certifi-
cation of blighted areas to improved property, but on
the contrary, vacant areas were expressly included. It
then stated: ‘‘It may be well to point out once more
what was said in the Schenck case, 364 Pa. at page
37, 70 A.2d at page 615, that the Urban Redevelop-
ment Law is to be sharply distinguished from the
Housing Authorities Law of May 28, 1937, P. L. 955
* * * in that the latter aimed principally at the
elimination of undesirable dwelling. houses, whereas
the Urban Redevelopment Law ‘was obviously in-
tended to give wide scope to municipalities in re-
designing and rebuilding such areas within their
limits as * * * no longer meet the economic and social
needs of modern city life and progress.’ Redevelop-
ment authorities have the power, therefore, where the
34
conditions prescribed in the act are found to exist, to
exercise the right of eminent domain pursuant to a
redevelopment proposal even though the redevelop-
ment area may be predominantly open, vacant or
unimproved.’’ (P, 52.)
The contention is further answered in People v.
City of Chicago, supra, 111 N.E.2d 626, 633: ‘Next to
be considered is plaintiff’s contention that the acqui-
sition of vacant land areas of the type here involved
by a public agency, for subsequent sale to private
interests for development for residential use, is not
acquisition for a public use or a public purpose, and
that therefore eminent domain may not be employed
and public funds may not be expended. This court
has recognized the existence of an acute housing short-
age, Cremer v. Peoria Housing ‘Authority, 399 TIL.
579, 78 N.E.2d 276, and the evidence in this case
confirms the continued existence of that shortage.
We have held that the expenditure of public funds
for the acquisition ‘of land by a public agency to be
sold to a private developer for the construction of
non-low-rent housing constitutes a public purpose.
Cremer v. Peoria Housing Authority, 399 Ill. 579,
78 N.E.2d 276. In Zurn v. City of Chicago, 389 Tl.
114, 59 NE. 2d 18, we held that the elimination and
levele of slum and blighted areas is a public
purpose and a publie use regardless of the subsequent
aale or lease of the property to private interests after
ecently, i \ehicago Land Clearance Comaniesion i
411 Til. 310, 104 N.E.2d 236, we held that a =
condemnation proceeding under the Blighted Areas
Redevelopment Act of 1947 was not a proceeding to
acquire land for private purposes merely because
a Land Clearance Commission had entered into a
contract with a private corporation for the sale of the
area after it was acquired. Chicago Land Clearance
Commission v. White, 411 Il. 310, 104 N.B.2d 236.”
In Foeller v. Housing Authority of Portland,
supra, 256 P.2d 752, it was pointed out that the trans-
formation of an entire area which is struggling
against obsolete planning and is otherwise blighted,
into one from which all hazards to the city’s health,
morals and safety have been eradicated and the plac-
ing in deeds conveying such portion of the area as
may go into private ownership, of conditions and
covenants to prevent the recurrence of blight, con-
stitutes a public use of such area. It must be pointed
out that neither esthetic views nor considerations of
economic advantage to the community or a combina-
tion of both are sufficient to justify the use of emi-
nent domain for redevelopment purposes. The rede-
velopment program must be necessary to protect the
public health, morals, safety or general welfare
through the elimination of blighted areas. (Opinion
to the Governor, 76 B.1. 249 [69 A.2d 531}.) pes
In Fallbrook Irr. Dist. v. Bradley, supra, 164 US.
112, 163, a case arising in California, it was held that
the state’s power of eminent domain may be exercised
if the taking “‘be essential or material for the pros-
perity of the community ** *
36.
The act is premised upon the expressly declared
policy that elimination of blighted areas of the Dia-
mond Heights type and the redevelopment of such
areas along the lines contemplated here are public
uses and purposes and are governmental functions
of state concern. As said in Housing Authority v.
Dockweitler, supra, 14 Cal.2d 437 (dealing with slum
clearance for public housing projects), (p. 449):
‘*While such a declaration of policy by the legislative
branch of the government is not necessarily binding
or conclusive upon the courts, it is entitled to great
weight and it is not the duty or prerogative of the
courts to interfere with such legislative finding unless
it clearly appears to be erroneous and without reason-
able foundation.’’
- Pusric Use
_ While in Gravelly Ford Canal Co. v. Pope & Talbot
Co., 36 Cal.App. 556, 563 [178 P. 150], the court ap-
plied the strict definition of ‘‘public use,”’ it is sig-
nificant that in University of Southern Calif, v. Rob-
bins, 1. Cal.App.2d 523 [37 P.2d 163], the court held
that the taking of land by eminent domain by a
private institution, the University of Southern Cali-
fornia, to be used as a library for its own students,
was for a public purpose. In Tuolumne Water etc.
Co. v,. Frederick, 13 Cal.App. 498, the court said (p.
503. pias P. -134]); “The courts would not be aiding
nterprises of the west by adopting a nar-
Sale een Oe ee a
37
constitution.’’ Both cases advocate an expanded con-
cept of what is use by the public.
Housing Authority v. Dockweiler, supra, 14 Cal.2d
437, adopted the broader interpretation as the rule to
be followed in this state. It might be pointed out that
as our community life becomes more complex, our
cities grow and become overcrowded, and the need to
use for the benefit of the public areas which are not
adapted to the pressing needs of the public becomes
more imperative, a broader concept of what is a pub-
lie use is necessitated. Fifty years ago no court would
have interpreted under the eminent domain statutes,
slum clearance even for public housing as a public
use, and yet, it is now so recognized. In addition,
slum clearance for redevelopment purposes is likewise
so recognized. To hold that clearance of blighted areas
as characterized by the act and as shown in this case
and the redevelopment of such areas as contemplated
here are not public uses, is to view present day con-
ditions under the myopic eyes of years now gone. As
said in Miller v. Board of Public Works, 195 Cal. 477,
488 [234 P. 381, 38 A.L.R. 1479]: “‘As the interest of
society justifies restraints upon individual conduct,
so, also, does it jnstify restraints upon the use to
which property may be devoted. It was not intended
by these constitutional provisions to so far protect
the individual in the use of his property as to enable
him to use it to the detriment of society. By thus pro-
tecting individual rights, society did not part with
the power to protect itself or to promote its general
well-being. Where the interest of the individual con-
flicts with the interest of society, such individual in-
terest is subordinated to the general welfare.”’
Pennsylvania Mut. Life Ins. Co. v. City of Phila
delphia (1913), 242 Pa. 47 [88 A. 904, 49 L.R.A.N.S.
1062], is not applicable. There the court held that
taking private property adjoining a parkway merely
to resell it to private persons subject to restrictions
for ‘‘ ‘the preservation of the view, appearance, light,
air, health or usefulness’ ’’ of the parkway, was not
a taking for public use. It pointed out that there
have been two different interpretations of ‘‘public
use’’ in this country, one the broader meaning of
“public utility or advantage,’’ the other narrower
one of “‘use, or right of use, by the public,’’ and that
it preferred the narrower meaning. However, it indi-
cated that there could be a taking for the purpose
indicated if the city were to keep ownership of the
property taken rather than resell it. Apparently the
question of public use under this decision depended
upon whether the property taken is to be coutinued
im public ownership rather than whether the use it-
self is a public one. In California our courts have
followed the broader definition of ‘‘public use’’ and
the cases hereinbefore cited have held that if prop-
erty is taken for a public use; the fact that it is later
to be returned to private ownership subject to re-
strictions protecting the public use, does ‘not make it
ea ee
tion in the Pennsylvania Mutual case, and in addition,
have supported the last mentioned statement. Sed
Belovsky v. Redevelopment Authority, supra, 54 A.2d
277; Schenck v. City of Pittsburgh, supra, 7 A2d
612. While it has been held that private property may
not be taken for purely esthetic reasons (that rule is
discussed in the Pennsylvania Mutual case, p. 906),
it would seem proper in the light of the more modern
cases, ineluding the later Pennsylvania eases, to take
private property if it were needed to protect a park-
way and to provide light and air and usefulness for
it. Section 14%, article I of the California Constitu-
tion (excess condemnation) provides this. Once it is
determined that the taking is for a public purpose,
the fact that private persons may receive benefit is
not sufficient to take away from the enterprise the
characteristics of a public purpose. (Housing Au-
thority v. Dockweiler, supra, 14 Cal.2d 437; see, also,
Chicago Land Clearance Com. v. White, supra, 104
N.E.2d 236; Herzinger v. Mayor & City Council of
Baltimore (Md.), 98 A.2d 87, 92; Zurn v. City of Che-
cago, supra, 59 NE.2d.18; Waddell v, Chicago Land
Clearance Com., 206: F.2d. 748.) ‘‘That purpose, as
40
the need for public ownership has terminated, it is
proper that the land be re-transferred to private
ownership, subject only to such restrictions and con-
trols as are necessary to effectuate the purposes of
the act. It is not the object of the statute to transfer
property from one individual to another; such trans-
fers, so far as they may actually occur, are purely
incidental to the accomplishment of the real or funda-
mental purpose.’’ (Belovsky v. Redevelopment Auw-
thority, supra, 54 A.2d 277.) (See, also, Rowe v.
Housing Authority, supra, 249 S.W.2d 551.)
McCord v. Housing Authority of City of Dallas
(Tex. Civ. App.) 234 S.W.2d 108, is not in point here.
It decided that the Housing Authority Law under
which the Housing Authority purported to act con-
tained no provision for selling or leasing the rede-
veloped land after slum clearance to private persons.
For that reason it confined the definition of ‘‘public
purposes”’ as used in the law to the continued own-
ership of the property after development by the au-
thority. It contrasted the law with a federal law
which expressly provided for making slum cleared
land available for development by private enterprise.
Equa Prorecrion
The claim that the Redevelopment Acts because
they provide for acquisition of property by eminent
domain and its later resale, violate the Fourteenth
Amendment to the Constitution in denying to the
propetty owners the equal protection of the law, has
41
been denied in several cases, among others, Ajootian
v. Providence Redevelopment ‘Agency, supra, 91 A.2d
21; Nashville Housing Authority v. City of Nashville,
supra, 237 S.W.2d 946; Belovsky v. Redevelopment
‘Authority, supra, 54 A.2d 277; Robinette v. Chicago
Land Clearance Com. (U.S. Dist. Ct., Til, 1951);
State ex rel. Bruestle v. Rich, supra, 110 N.E.2d 778.
While the decision in the Robinette case is merely a
‘‘Memorandum and Order,’’ the order dismissing the
action for want of a substantial federal question, and
is unpublished, it is of value for the reason that in
Robinette v. Campbell, 342 U.S. 940 [72 S.Ct. 563,
96 L.Ed. £99], the Supreme Court denied motions for
leave to file petitions for a writ of mandamus to
compel the trial judge to expunge his order of dis-
missal. As said in Waddell v. Chicago Land Clearance
Com., supra, 206 F.2d 748, where the same federal
questions were raised (p. 750): ‘‘Thus it is seen that
the Supreme Court has refused to entertain an appli-
cation to review the questions which appellants have
attempted to present by this action.”
As pointed out in those cases, the acquiring of the
property is for a public use, its sale and the transfer
of the property from one individual to another, so
far as they may occur, are merely incidental to that
use, and not the main object of the statute. The tak-
ing from the owner is not arbitrary. It is for & public
purpose. The owner is guaranteed and will receive
full compensation. In State ex rel. Bruestle v. Rich,
supra, 110 N.E.2d 778, in discussing the contention
made concerning the proposed redevelopment proj-
42
ect, similar to the contention made here, that the plan
contemplated taking the property of one person and
reselling it to another and was therefore unconsti-
tutional, the court stated that the primary purpose
of the plan was to eliminate the blight conditions and
provide against their recurrence. It then stated (p.
785): ‘The exercise of the right of eminent domain
under such a project, carried out pursuant to state
law, has likewise been held by the Supreme Court of
the United States as not to be contrary to the Four-
_ teenth Amendment to the federal Constitution. Burt
v. City of Pittsburgh, 340 US. 802, 71 S.Ct. 53, 95
L.Ed 589.’’ See, also, Waddell v. Chicago Land Clear-
ance Com., supra, 206 F.2d 748.
Due Process
The act does not violate the due process clause of
the Fourteenth Amendment to the federal Constitu-
tion. (See Robinette v. Chicago Land Clearance Com.,
supra, (U.S. Dist. Ct., Ii, 1951); People v. City of
Chicago, supra, 111 N.E. 2d 626, 636.) To violate the
due process clause a state statute permitting state ac-
tion in economic affairs must be arbitrary and with-
out reason. (Olsen v. Nebraska, 313 U.S, 236 [61 8.Ct.
862, 85 L.Ed. 1305, 133 A.L.R. 1500]; United States
v, Carolene Products Co., 304 US. 144 [58 S.Ct. 778,
82 L.Ed..1234].) The courts are restricted to an in-
quiry as to whether any state of facts known or which
or aeoag weir oem en
enacting the statute. (United States v. —
Prime supra, 304 U.S, 144, 154)
While the legislative findings are not binding on the
court, they are entitled to great respect. (Block v.
Hirsh, 256 U.S. 135 [41 S.Ct. 458, 65 L.Ed. 865];
Weaver v. Palmer Bros. Co., 270 U.S. 402 [46 S.Ct.
320, 70 L.Ed. 654].) Not only the California Legisla-
ture but the Congress of the United States and the
legislatures of many states have made legislative find-
ings of the necessity of redeveloping blighted areas
by the use of private as well as public means. That
modern conditions require such action is shown in the
many books, articles and reports on community plan-
ning produced in the last few years. The courts, too,
are entitled to take judicial notice of the need for,
and the change in attitude towards, such planning.
(See article by Hon. Emmet H. Wilson, Constdera-
tion of Facts in Constitutional Cases, vol. 17, So.Cal.
L.Rev. 335.) ‘As article I, section 13 of the California
Constitution is identical in scope and purpose with
the Fourteenth Amendment of the federal Constitu-
tion, what has been said here concerning due process
ender the tities apgies eh ae te: See
Constitution.
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the power to determine whether a given area is
blighted, such delegation is contrary to article III,
section 1 of the Constitution, which provides for the
separation of powers into the three branches of gov-
ernment. It is contended that the characterization of —
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