OrangeCoast Equities v. City of Victorville

Filed 6/25/10 Orange Coast Equities v. City of Victorville CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Affirmed.

Buchalter Nemer, George J. Stephan and Efrat M. Cogan for Plaintiff and Appellant.

Green de Bortnowsky & Quintanilla, Joan Stevens Smyth and Randall Nakashima for Defendant and Respondent.

Plaintiff and appellant Orange Coast Equities, LLC (OCE) sought approval of a subdivision map for the development of vacant property. Two billboards exist along a 14-foot strip of that parcel to be dedicated for road widening under the City of Victorvilles (City) General Plan. The City denied approval of OCEs subdivision map due to Citys determination that the proposed subdivision map did not comply with the General Plan as required by the Subdivision Map Act. (Gov. Code, 66410, et seq.) The proposed subdivision map omitted the street dedications necessary for Motorized Circulation Element of the General Plan. OCE claimed that the Citys refusal to approve the subdivision map constituted imposition of a de facto condition of removal of the billboards for approval of the map at its own expense, in violation of the Outdoor Advertising Act. (Bus. & Prof. Code, 5412.6.) OCE sought a petition for writ of mandate seeking relief from the Citys administrative decision, as well as a complaint for declaratory relief and inverse condemnation. The trial court denied OCEs petition for writ of mandate.^[1]

OCE appeals, claiming that the City violated Business and Professions Code section 5412.6 by denying approval of the subdivision map without providing compensation for the removal of the billboards. We conclude the Citys determination that the subdivision map failed to comply with the General Plan due to OCEs failure to include on the map the dedications for the widening of Amargosa Road, does not constitute a requirement by the City that a lawfully erected display be removed as a condition or prerequisite for the issuance of the approval, within the meaning of the Outdoor Advertising Act. (Bus. & Prof. Code, 5412.6.)

BACKGROUND

OCE owns a five-acre parcel of land located in the City of Victorville, south of the logical extension of Sycamore Street and west of and abutting Amargosa Road. The parcel is vacant land except for two billboards, on easements held by TLC Properties, Inc. and Lamar Central Outdoor, LLC, doing business as Lamar Advertising Company. The easements are located on the 14-foot strip of property running along the eastern edge of the parcel, abutting Amargosa Road. The Citys General Plan calls for widening Amargosa Road from its current width of 70 feet to 84 feet, requiring dedication of the 14-foot strip burdened by the easements.

Commencing in 2003, OCE sought approval of a subdivision map which would divide the parcel into three smaller parcels. However, the existence of the two billboards meant that structural development was prohibited within one hundred feet of a developed business site property line. (Former Muni. Code of City of Victorville [Victorville Muni Code],  18.62.070(f)(6)^[2].) OCE was informed on November 12, 2003, that under the zoning ordinance, once the billboard ceases to comply with any of the regulations contained in Victorville Muni Code section 18.62.070(f) it becomes a legally nonconforming sign, subject to removal at the owners expense.

In 2004, OCE submitted a new proposed subdivision map, which would have divided the property into four parcels, placing the billboards on a separate parcel which would remain undeveloped, to conform to the zoning requirements. However, the fourth parcel with the billboards would have less than the required minimum square footage of 10,000 square feet after roadway dedications for Sycamore Street and Amargosa Road. The Citys Engineering Department recommended conditional approval of the subdivision map, the conditions being that the map must show any easement traversing the property, as well as street dedications in accordance with the Motorized Circulation Element of the General Plan respecting the 14-foot strip along Amargosa Road, and 32 feet for Sycamore Road, including a 400-foot radius curve to intersect Amargosa Road.

In November 2004, OCE submitted a new proposed subdivision map, which was tentatively approved subject to certain conditions. The engineering conditions required that the subdivision map show any easement of record, and that OCE dedicate, free and clear of any liens, easements or structures or encumbrances, the street right-of-ways relating to Amargosa Road and Sycamore Street. OCE filed an appeal from this decision but abandoned it. However, in May, 2006, OCE submitted another proposal, and requested that the City compensate it for the removal of the billboards. In June 2006, the submitted proposal was rejected as incomplete because it did not identify all roadway dedications. OCE believed the application was complete and refused to include the roadway dedications as not being required.

On August 17, 2006, OCE submitted a new application to subdivide the parcel, this time seeking to divide the property into three parcels. In September 2006, the Director of Development and Senior Planner for the Citys Planning Commission recommended disapproval of the proposed parcel as incomplete because Sycamore Street, a collector roadway on the Circulation Element of the General Plan, was not shown, nor was the cross-section of Sycamore Street shown. The Planning Commission conducted a regular meeting on September 13, 2006, where the Planning Commission voted to consider the application incomplete.

In January 2007, a hearing was set before the Planning Commission to review OCEs most recent submission. The hearing was postponed when it was discovered that the proposed subdivision map deviated substantially from the prior submission, completely omitting the 14-foot right of way. The issue was revisited at a public hearing of the Planning Commission which took place on February 28, 2007, where the Planning Commission voted to deny approval of the parcel map because it did not comply with the Citys General Plan.

OCE appealed the decision of the Planning Commission to the City Council. On April 3, 2007, the City Council concluded that the Planning Commission had not abused its discretion, resolving to deny relief. On July 2, 2007, OCE filed a petition for writ of mandate and a complaint for declaratory relief and damages for inverse condemnation. By way of amendment, Lamar Central Outdoor, LLC, doing business as Lamar Advertising Company (Lamar) was named as a defendant.^[3] On July 10, 2008, the court denied the petition for writ of mandate because the weight of the evidence supported the Planning Commissions denial of the subdivision application because the General Plan expressly referred to the widening of the road. On February 18, 2009, OCE requested dismissal, with prejudice, of the balance of the complaint for purposes of expediting the appeal of the order denying the petition for writ of mandate. On March 18, 2009, OCE appealed.

DISCUSSION

OCE contends that the trial court erred in denying its petition for writ of mandate. Although it concedes the City did not expressly condition map approval on the removal of the billboards, it asserts that denial of approval of the most recent subdivision map constituted the imposition of a de facto condition or prerequisite of removal of the billboards. In this way, OCE contends that the denial of approval of the subdivision map violated the provision of the Outdoor Advertising Act requiring compensation by the City for the cost of removal of the billboards. (Bus. & Prof. Code,  5412.6.) We disagree.

Statutory Backdrop

No local agency shall approve a tentative map or a parcel map for which a tentative map was not required, unless the legislative body finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan. (Gov. Code, 66473.5.) Under the Subdivision Map Act (Gov. Code, 66410, et seq.), a legislative body of a city or county shall deny approval of a tentative map, or a parcel map for which a tentative map is not required, if, among other things, the proposed map is not consistent with applicable general and specific plans. (Gov. Code, 66474, subd. (a).) The intent of this legislation is to preserve the integrity of the general plan concept. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 936.)

Section 5412 of the Business and Professions Code provides, in essence, that no advertising display, such as a billboard, which was lawfully erected anywhere within the state, may be compelled to be removed without payment of compensation. Section 5412.6 provides that, The requirement by a governmental entity that a lawfully erected display be removed as a condition or prerequisite for the issuance or continued effectiveness of a permit, license, or other approval for any use, structure, development, or activity other than a display constitutes a compelled removal requiring compensation under Section 5412, unless the permit, license, or approval is requested for the construction of a building or structure which cannot be built without physically removing the display.

The regulation and control of the design and improvement of subdivisions is vested in the legislative bodies of local agencies. (Gov. Code, 66411.) Government Code section 66475 permits the imposition, by local ordinance, of a requirement for dedication or irrevocable offer of dedication of real property with the subdivision for streets, alleys and other access rights. The City of Victorville has adopted an ordinance requiring the inclusion of street dedications on proposed subdivision maps. (Victorville Muni Code, 17.20.120(6).)

The local ordinances governing approval of subdivision maps incorporate the requirement that the subdivision or parcel map conform to the general plan. Victorville Muni Code section 17.20.030(b) requires the planning commission to report on the conformity of the proposed subdivision map to the general plan. The proposed map is required to include the location, names and existing widths of adjacent streets, highways, and other dedicated and nondedicated access ways (Victorville Muni Code, 17.20.120(6), 17.20.130(6)), as well as the location, names and widths of all existing or proposed streets, ways, pedestrian or bicycle paths in the subdivision, and their approximate grades including typical sections thereof. (Victorville Muni Code,  17.20.120(7).) OCE does not challenge these ordinances.

Regarding billboards, the Victorville Muni Code prohibits structural development on parcels in which a billboard or outdoor advertising structure exists. (Victorville Muni Code, 18.62.070(f)(3).) Nonconforming signs must be removed. (Victorville Muni Code, 18.62.120(a).) Nonconforming signs are signs which do not conform to the provisions of the municipal code, but which were lawfully erected prior to the effective date of the ordinances which made them nonconforming. (Victorville Muni Code,  18.62.120(a).) Following the 1967 amendments to the Outdoor Advertising Act and adoption of the Citys Municipal Code, the billboards became nonconforming, in that they were lawfully placed prior to the enactment of the statutory scheme, but did not conform to the provisions of the Act subsequently enacted. (See, Traverso v. People ex rel. Dept. of Transportation (1993) 6 Cal.4th 1152, 1157-1158.)

Discussion

Billboards are a proper subject for local regulation under the police power. (Viacom Outdoor, Inc. v City of Arcata (2006) 140 Cal.App.4th 230, 237; see also, Gov. Code, 38774, 65850, subd. (b).) The billboards in question are situated on property that OCE intends to develop. The billboards may have been lawful when erected, but the structural development contemplated by OCE is prohibited on parcels where billboards are standing. (Victorville Muni Code, 18.62.070(f)(3).) OCE has submitted various proposals to circumvent the local ordinances that will require uncompensated removal of the billboards. However, the submission that formed the basis for the instant litigation omitted the street dedication for the widening of Amargosa Road. This dedication for proposed street widening was required by the Victorville Muni Code ( 17.20.130(6)), and by the general plan. By omitting the street dedication, the proposed parcel or subdivision map did not conform with the general plan. For this reason, approval was not permitted. (Gov. Code, 66474, subd. (a).)

The requirement for the dedication of land to the widening of existing streets does not constitute a compulsory taking for public use, and where such a decision is a condition reasonably related to increased traffic and other needs of a proposed subdivision, it is voluntary in theory and not contrary to constitutional concepts. (Ayres v. City Council of Los Angeles (1949) 34 Cal.2d 31, 42.) It is now well established that under certain circumstances a governmental body may require the dedication of property as a condition for its development. (Selby Realty Co. v. San Buenaventura (1973) 10 Cal.3d 110, 119; see also, Rohn v. City of Visalia (1989) 214 Cal.App.3d 1463,1471-1472.) OCE does not dispute this.

The fact the subdivision map was rejected as inconsistent with the general plan does not constitute a taking; zoning ordinances are frequently attended by hardships to individuals which are considered reasonable to the price of living in a modern enlightened and progressive community. (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892, 912, citing Metro Realty v. County of El Dorado (1963) 222 Cal.App.2d 508, 518.) The Citys action was not an abuse of discretion.

OCE relies on Patrick Media Group, Inc. v. California Coastal Commission (1992) 9 Cal.App.4th 592, in arguing that the City was required to compensate it for removal of the billboards. That case is inapposite. In Patrick Media, the City of Solana Beach applied for a coastal development permit for the construction of a hotel on coastal property. The Coastal Commission issued a permit but conditioned it on, among other things, removal of the billboards. (Id. at pp. 599-600.) Because the Coastal Commission conditioned the permit on removal of billboards, the commissions act violated Business and Professions Code section 5412.6, requiring compensation to the developer. (Id. pp. 601-602.) That case did not involve a parcel map which failed to conform to the general plan by omitting required street dedications so it does not aid our analysis.

OCE argues that the denial of approval of the proposed subdivision map constitutes a condition that it remove the billboards as a condition of approval. OCE refers to the Citys tentative approval of its 2004 parcel map submission to demonstrate that removal of the billboards was a condition of approval. However, that tentative approval lapsed when OCE submitted its subsequent subdivision map proposals so we are not concerned with that. As for OCEs argument that the City conditioned approval of its current subdivision map proposal, we disagree. No conditional permit was issued, nor was the proposed subdivision map approved, on condition of removal of the billboards.

In asserting its right to compensation under Business and Professions Code section 5412.6, OCE argues that the City will either deny every subdivision application absent OCEs agreement to remove the billboards, or the City will condition the grant of any development approval on OCEs agreement to remove the billboards. That issue is not before us because OCE submitted a proposed map which omitted street dedications making it inconsistent with the general plan and denial of approval was grounded on that apparently intentional omission. Because approval of the subdivision map was not conditioned upon removal of the billboards, the provisions of Business and Professions Code section 5412.6 are not applicable.

Further, because OCE omitted the street dedications necessary to bring the map into conformity with the general plan, even if the billboards were removed, approval of the proposed subdivision map would still be denied on the same grounds. For this reason, it is incorrect to assert that approval of the subdivision map was conditioned on removal of the billboards.

DISPOSITION

The judgment is affirmed. Costs on appeal, if any, are awarded to respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/Richli

J.

s/Miller

J.

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^[1] The parties stipulated to the entry of judgment on the remaining causes of action to facilitate this appeal.

^[2] The Victorville Municipal Code was subsequently amended. The current version of section 18.62.070(f) does not include this subparagraph. Instead, the current zoning ordinance prohibits structural development on parcels in which a billboard or outdoor advertising structure exists. (Muni. Code, 18.62.070(f)(3).)

^[3] Lamar, along with TLC Properties, Inc., answered the complaint as defendants and involuntary plaintiffs.