Petition for Writ of Certiorari — Clark v. California

Supreme Court brief1954

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Text

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 —

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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