The City of Orange's strategy for enhancing its downtown ambiance received a sharp rebuke from the Fourth District Court of Appeal. In the end, the court upheld an award of $150,000 to a property owner who lost access to one parking space because of the city's sidewalk project.
What appeared to doom the city was a decision to ignore an Orange County Superior Court preliminary injunction that was intended to prevent the city from blocking access to the parking space. In a harshly worded and, at times, sarcastic opinion, Presiding Justice David Sills repeatedly cited the city's violation of the injunction.
Sills opened the opinion thusly: “This is a textbook example of a party trying to take advantage of its own wrong. In this case the opportunistic party is the City of Orange. The wrong is that the city violated a preliminary injunction not to build in a certain area or otherwise interfere with existing parking access enjoyed by a property owner. We will repeat the essence of that statement just in case any reader missed it the first time: The city violated a preliminary injunction not to interfere with the landowner's parking access. It built a permanent cement curb that the injunction specifically precluded it from building, thereby eliminating a driveway swale and thus entirely foreclosing the owner's access to a parking space on his property. Now the city complains because the trial court awarded the property owner damages for the loss of access.”
Orange Circle is a large traffic circle at the intersection of Glassel and Chapman avenues in the heart of “Old Towne Orange.” In the middle is a manicured plaza. Surrounding the circle are shops and offices. There is parking on the street. Of concern to the city was a gap between two buildings. That one-car-wide space was used for vehicle parking by the adjacent law office from 1946 to 2001. However, access to the space required a driveway across a sidewalk next to a coffee house and a restaurant, both of which have seating on the sidewalk.
The city planned to enlarge the sidewalk and block off the vehicular access to the gap. In September 1999, the city notified attorney Mark Hurwitz, who owns the property, of its plans. The two sides negotiated for nearly a year but got nowhere when the city refused to compensate Hurwitz. He then learned that the city was about to demolish the driveway and build a curb. So in April 2001, he filed suit for an injunction to stop the city. On May 2, 2001, the court issued a preliminary injunction, which barred the city from “demolishing, blocking, barricading, commencing construction upon, eliminating or otherwise interfering with or depriving plaintiff of the use of the driveway.”
A few weeks later, the city built a curb and bolted benches the sidewalk. The city also built a temporary asphalt ramp, but vehicular access to the gap was impossible. The city followed up in June by conducting a hearing in which the City Council declared use of the gap as a parking space to be a nuisance. The council also decided to acquire the vehicular access through nuisance abatement or eminent domain proceedings. The city then filed a cross-complaint in eminent domain to Hurwitz's suit. During a trial in 2002, Superior Court Judge Thierry Patrick Colaw ruled that the city should compensate Hurwitz for loss of the parking space. The city set the value at $1,000 based on a rental value of $10 per month for eight years and refused to consider a higher price. Hurwitz pegged the value at $150,000 based on the decline in property value. The jury chose Hurwitz's figure.
The city appealed, based largely on the argument that Hurwitz was not entitled to any compensation because he had not contested the city's actions in court. The Fourth District rejected that argument for many reasons, including the fact that Hurwitz had sought and received a preliminary injunction against the city - before the city took action.
“For a public agency to violate a court order and then turn around and argue that its adversary should have tried to get another court order and that the failure to do so rendered the entity immune from judgment leaves us incredulous,” Sills wrote.
The court also ruled that the city abused its police power to declare a nuisance. “If ever there was a case where a city's finding of a 'nuisance' could be found to by a trial court to be pretextual (as a cover for the substantive taking of property, or, as here, a property right) this is the case,” Sills wrote.
As for the jury's award of $150,000, the court said the price “is a bit steep … but … the city again has only itself to blame. The choose-$1,000-or-$150,000 strategy forced the jurors to select one number or the other, and the record indicates that $1,000 would be too low as a matter of law.”
The Case:
Hurwitz v. City of Orange, No. G032479, 04 C.D.O.S. 8766, 2004 DJDAR 11969. Filed September 24, 2004.
The Lawyers:
For Hurwitz, Michael Meade, Hurwitz & Hurwitz, (714) 538-2391.
For the city: David DeBerry, city attorney's office, (714) 744-5580.
