BORDER BUSINESS PARK, INC v. CITY OF SAN DIEGO

Filed 9/19/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

Story continue from Part I ……..

Background

The issue arose as follows. Prior to the mid-1980’s, the sole point of entry between the United States and Mexico in California was the border crossing at San Ysidro. In about 1985, the federal government opened a second border crossing in Otay Mesa. In the mid-1990’s, San Ysidro was closed to commercial truck traffic, and Otay Mesa became the sole border crossing for trucks. At that time, the main route to the border crossing was Otay Mesa Road, a city-operated street, which turned into State Highway 905 a few miles north of the border. Otay Mesa Road is the main thoroughfare in the area, and to avoid having long lines of traffic backed up along Otay Mesa Road as well as the commingling of truck and automobile traffic, the city decided to reroute truck traffic.

Choosing among the available alternatives, all of which presented problems, the city elected, as an interim solution, to route truck traffic from Otay Mesa Road south onto La Media, then east on Siempre Viva. It extended Drucker Road north to intersect with Siempre Viva and built a road to the border crossing. City traffic engineers anticipated that if the traffic backed up along Drucker Road and onto Siempre Viva, it would affect only the property on the south side of Siempre Viva, which was at that time largely undeveloped. Border Business Park is on the north side of Siempre Viva; La Media is immediately west of the park.^[1]

When the city first decided to reroute the truck traffic, La Media was insufficiently developed to accommodate it. During the first six to nine months after the city routed truck traffic away from the Otay Mesa Road/Highway 905 route, it diverted the traffic through Border Business Park while it improved La Media. Even after La Media opened to truck traffic, some truck drivers continued to drive through the business park. Others continued to approach the border crossing from Otay Mesa Road/Highway 905 via the westbound lanes of Siempre Viva, turning left onto Drucker Road. However, in doing so, they cut into the queue of traffic which was lined up in eastbound lanes of Siempre Viva after having followed the designated route. Confrontations between truck drivers who had waited in line and those who had jumped the line ensued, including fistfights. The city installed concrete barriers called K-rails which prevented trucks from turning left onto Drucker Road from the westbound side of Siempre Viva. The city erected signs to direct the errant trucks back to La Media via the public roads which ran through Border Business Park. The K-rails alleviated the congestion at the intersection of Siempre Viva and Drucker Road, and also eliminated most of the backup in the westbound lane of Siempre Viva.

Traffic often backed up in the eastbound lanes of Siempre Viva to La Media, and sometimes up La Media as well. There was usually no traffic backup in the morning, but there was a backup every afternoon. It would sometimes begin as early as 1:00 p.m., but usually it would begin between 3:00 and 4:00 or 4:30. However, the backup usually abated after 5:00 p.m., when the border crossing closed.

The truck traffic caused noise and diesel fumes which affected the park. There was also some physical damage to the park. The congestion on the surrounding streets made it difficult for business owners and employees to enter and exit the park. Sales of property in the park suffered as a result of the congestion.

The traffic problem was resolved after the trial, when, sometime in 2001, the city completed a permanent truck route to the border which had far less effect on traffic around the business park. Thus, Border sought damages for the period from January 1, 1995, the date the trial court found to be the effective date of the rerouting of truck traffic, through the trial in December 2000.

Standard of Review

We must first determine the applicable standard of review. Border takes the position that substantial impairment of access is solely a question of fact, and that we must uphold the trial court’s finding of substantial impairment because there was testimony that the impact of the truck traffic was “both substantial and unnecessary” and that at times there was “total gridlock“ on the streets surrounding the business park. The city contends that we can determine as a matter of law that there was no compensable impairment of access. It argues that inverse condemnation “may not be based on diminished convenience in the use of abutting streets, but only on proof of a ‘substantial impairment’ of access beyond a change in traffic flow or increased circuity of travel.” However, it contends, the evidence shows that there was a means of access to the park at all times and that the traffic backup merely required the use of more circuitous routes at times to enter or leave the property.

The standard of review of this issue is in dispute among the courts. The California Supreme Court has held both that whether there is a substantial impairment of the right of access is a question of fact (Rose v. State of California (1942) 19 Cal.2d 713, 728) and that it is a question of law (Breidert v. Southern Pac. Co., supra, 61 Cal.2d at p. 664). It has not resolved the apparent discrepancy. In San Diego Metropolitan Transit Development Bd. v. Price Co. (1995) 37 Cal.App.4th 1541, Division One of this court concluded that because the determination whether substantial impairment exists is primarily factual, the proper standard of review is substantial evidence. It concluded that the characterization of the issue of substantial impairment as one of law in some of the cases “means only that the compensability issue is a court issue and not a jury issue; the jury issue is limited to the amount of damages.” (Id. at p. 1548; accord, Perrin v. Los Angeles County Transportation Com. (1996) 42 Cal.App.4th 1807, 1812.) However, in a case decided very shortly before San Diego Metropolitan Transit Development Bd. v. Price Co., supra, the Second District Court of Appeal held that “the initial question whether there has been a substantial impairment of access is in truth a mixed question of law and fact, decided predominately as a question of law.” (Brumer v. Los Angeles County Metropolitan Transportation Authority (1995) 36 Cal.App.4th 1738, 1745 (Brumer).)

We agree with the Brumer court. A mixed question of law and fact that is predominantly one of law is one which “‘requires a critical consideration, in a factual context, of legal principles and their underlying values’ rather than merely ‘experience with human affairs.’ [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) As we discuss below, the right of access is limited by well-defined legal principles, and the threshold question -- whether there has been an impairment of that right -- is primarily a legal one, in that it requires consideration of legal principles “in the mix of fact and law.” (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801.) The more fact-driven inquiry, whether any impairment which has occurred is sufficiently substantial to be actionable (Brumer, supra, 36 Cal.App.4th at p. 1745), arises only if there has been a legally cognizable impairment of the right of access. (See Breidert v. Southern Pac. Co., supra, 61 Cal.2d at p. 665 [lack of access to the next intersecting street is a factor in finding impairment of the “general right” of access].) The issue is thus a mixed question in which legal considerations predominate, at least at the threshold.

In reviewing a mixed question of law and fact, we defer to the express or implied factual findings of the trial court and determine the applicable legal principles de novo. The standard which applies to the third step of the analysis, applying the law to the facts, depends upon whether factual or legal issues predominate. Where, as in this case, the issue is predominately one of law, we review it de novo. (Ghirardo v. Antonioli, supra, 8 Cal.4th at pp. 800-801.)

The Evidence Is Insufficient as a Matter of Law to Support the Inverse Condemnation Claim

As noted above, the easement of access “consists of the right to get into the street upon which the landowner’s property abuts and from there, in a reasonable manner, to the general system of public streets.” (Breidert v. Southern Pac. Co., supra, 61 Cal.2d at p. 663.) The city correctly points out that street alterations which cause significantly increased traffic or which reduce but do not eliminate access to a property do not give rise to a compensable taking. (People v. Ayon (1960) 54 Cal.2d 217, 223-224; Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 167.) Here, however, Border does not allege that there was merely an increase of traffic which caused some inconvenience or which reduced access to its property. Rather, Border contends that there was “total gridlock,” both around the property and within it, which rendered ingress and egress virtually nonexistent.

Although we have found no cases with a similar factual situation, we will assume, for the sake of discussion, that a rerouting of traffic which caused gridlock for a period of several hours every day would constitute a substantial impairment of the right of access. However, “gridlock” denotes more than heavy or slow-moving traffic. Rather, it denotes traffic congestion on a grid of intersecting streets which prevents traffic from moving in any direction. (Webster’s 9th New Collegiate Dict. (1991) p. 537.) Here, there is no evidence which supports Border’s contention that there was gridlock which prevented all access to the business park.

First, there is no evidence that the truck traffic “often comes to a complete stop in both directions“ (original italics) on Siempre Viva, as Border claims. The exhibits it refers to show traffic backed up on Siempre Viva and La Media only, and in only one direction on either street.^[2] Border claims that Richard Schaaf, a city traffic officer, testified that traffic was often blocked in both directions on Siempre Viva. This is not true. Rather, Officer Schaaf testified that the backup normally affected only the eastbound lanes. Occasionally, he said, a truck attempting to make an illegal turn would block all three lanes of Siempre Viva. When that happened, though, he would direct the truck out of the lane, make it go to a safe area, issue a citation, and send it eastbound. Thus, any blockage would be transitory and would not result in gridlock.

Rene Romero, the second witness Border cites, did not say that traffic often comes to a complete stop in both directions on Siempre Viva. Mr. Romero testified that when the trucks are backed up, it is impossible to drive through in the eastbound lane. He testified that driving in the opposite direction is hazardous because the truck drivers get impatient and some will enter the lane for oncoming traffic -- i.e., the westbound lane -- to try to pass other trucks in the queue. Thus, he did not say that it was impossible to drive westbound on Siempre Viva because of gridlock, but rather that it was hazardous to do so because of trucks driving eastbound in the westbound lane.

There is also no evidence that traffic ever encircled the business park, as Border claims. The park is bounded on the north by Airway Road, on the east by Harvest Road, on the south by the westbound lane of Siempre Viva and on the west by the northbound lane of La Media. There is no testimony that traffic backed up on all of these streets.

Nor is there evidence that there was ever gridlock on any of the streets surrounding the park, except, for a short period of time, at Siempre Viva and Drucker Road. Before the city installed the K-rails, traffic attempting to turn onto Drucker Road from both directions on Siempre Viva apparently caused periods of true gridlock at that intersection. However, the business park has entrance and exit roads intersecting with city streets on all four sides of the park. There is no evidence of gridlock on any of the streets except Siempre Viva, and on Siempre Viva, the only point of gridlock was the intersection with Drucker Road. Gridlock at a single intersection does not amount to “total gridlock” on all the streets surrounding the business park.

There is also no evidence to support Border’s claim that there was solid gridlock within the park every day and that drivers would jump the curbs inside the park “or otherwise proceed onto the private property of Park tenants” or “make their own dirt roads in the Park to avoid the queue on the paved streets.” (Original italics.) Officer Schaaf testified that trucks used the business park to make U-turns, as well as using “other dirt lots” in the vicinity. However, he did not identify those lots as being within the park, as Border implies. There was property west of La Media and south of Siempre Viva, not owned by Border, which consisted of dirt lots. The officer also testified that he had occasionally investigated damage to private property within the park allegedly caused by trucks, but he did not describe the nature of the damage he saw, nor did he say that any such damage was ever determined to have been caused by trucks. And, he did not testify either directly or by implication that trucks “made their own dirt roads” within the park, as Border claims, nor did he testify that he observed gridlock within the park. Harry Otis, a business owner with property in the park, did not testify that truck drivers drove off the paved roads to avoid gridlock, as Border asserts. Rather, he testified that on some occasions he used “cross-country tactics to get off the roads” and would “go around” to gain access to his property.

Border cites no other evidence that truck traffic created gridlock within the park or resembled a “serpentine waiting line at a Disneyland ride.” Even Mr. De La Fuente did not describe anything approaching gridlock. Rather, he said that during the time La Media was being improved, there was a daily line of trucks which “snaked” through the park. He made it clear, moreover, that the most serious problems with truck traffic within the park persisted only for a period of six to nine months while the city improved La Media to accommodate truck traffic. Border sought damages for six years of impaired access -- from January 1, 1995, the date the court found to be the effective date of the traffic rerouting, through the trial in December 2000.

Taken as a whole, and even when viewed in the light most favorable to Border, the evidence fails to establish that the truck traffic ever completely prevented ingress or egress. The question thus becomes whether the evidence supports the conclusion reached by the trial court, that the traffic problems amounted to a substantial impairment of the right of access. We conclude that as a matter of law, the evidence does not support a finding of compensable interference with the right of access.

The right of access is not unlimited. “Not every interference with the property owner’s access to the street upon which his property abuts and not every impairment of access, as such, to the general system of public streets constitutes a taking which entitles him to compensation.” (Breidert v. Southern Pac. Co., supra, 61 Cal.2d at pp. 663-664.) As long as there is access to the abutting road and from there to the next intersecting street in at least one direction, there is no legally cognizable impairment of access. (People v. Ayon, supra, 54 Cal.2d at pp. 223-224.)

The maps Border relies upon show that there was access by a number of routes from the business park’s six entrance/exit roads to the general system of streets. There is a network of roads within the park which provide access from most of the parcels to all of the entrance/exit roads. There is an exit which intersects the northbound lane of La Media, as well as two exits which lead to Airway Road, which also intersects the northbound lane of La Media. La Media intersects Otay Mesa Road to the north of the park. Otay Mesa Road apparently intersects Interstate 805, and is apparently the main thoroughfare in the area. There was no evidence that the traffic backup affected the northbound lanes of La Media. The only evidence that traffic backed up in the southbound lane of La Media as far north as Airway Road, limiting access via the La Media entrance, is the testimony of Harry Otis, who owned property within the business park. Mr. Otis testified that sometimes, rather than using the La Media entrance to the park, he would instead have to come down Highway 905 to Airway Road and enter the park via Airway Road. However, he did not indicate that there was ever a time when he was unable to gain access via Airway Road.^[3] Thus, the evidence fails to show that there was ever a time when there was no access by means of at least one entrance to the park. At most, the traffic backups required tenants of the park to use an entrance which was less convenient.^[4] Interference with access which merely requires greater “circuity of travel” is not compensable. (People v. Russell (1957) 48 Cal.2d 189, 195.)

There are a few parcels within the business park which have no access to the streets within the park, such as several which front on Siempre Viva. Their means of ingress and egress is apparently limited to driveways which lead directly into the westbound lane of Siempre Viva. Border attempted to show that those properties completely lacked a means of ingress and egress because of the traffic problems on Siempre Viva. This was refuted by Officer Schaaf, who rejected the suggestion made by Border’s attorney that the traffic backup on Siempre Viva “covers” the entrances and exits to the business park. The maps relied on by both parties make it clear that even when the traffic was backed up in the eastbound lanes of Siempre Viva, the properties in question would have access to the westbound lane. A driver leaving those properties could travel west to La Media and thence north to Otay Mesa Road. Even during the relatively short period when there was gridlock at Siempre Viva and Drucker Road, before the city installed the K-rails, the gridlock would not have affected egress from those properties which lie to the west of Drucker Road.^[5] Ingress to those properties could be achieved, even when there was gridlock to the west of Drucker Road, by traveling through the business park from the north and exiting into the westbound lane of Siempre Viva either at Drucker Road or via the exit road to the west of Drucker Road. The properties along Siempre Viva which lie to the east of Drucker Road have access to other routes for both ingress and egress, either by driving through the park to Airway Road or by using Harvest Road. Thus, even though access might have been circuitous and perhaps slow because of the volume of traffic, there was nevertheless a reasonable means of ingress and egress at all times.

Border asserts that courts “have imposed liability where, as here, there is unnecessary and substantial traffic diversion,” but cites no cases which have actually held that a city can be liable for rerouting of traffic which results in less than a complete denial of access. Border cites only Heimann v. City of Los Angeles (1947) 30 Cal.2d 746.^[6] However, there was no allegation in that case that any damages resulted from traffic diversion. Rather, the issue in that case was an alleged loss of use of property during the construction of a viaduct, resulting from the piling of earth, rock and other material in the streets and the erection of sawmills, sheds and other structures, the accumulation of waste materials on and near the plaintiffs’ premises and the partial obstruction and closing of streets. (Id. at pp. 754-755.) In contrast, the courts have held that exercise of a city’s power to regulate traffic is not actionable under a theory of impairment of access: “The property owner has no constitutional right to compensation simply because the streets upon which his property abuts are improved so as to affect the traffic flow on such streets. If loss of business or of value of the property results, that is noncompensable. It is simply a risk the property owner assumes when he lives in modern society under modern traffic conditions.” (People v. Ayon, supra, 54 Cal.2d at pp. 223-224.) If some reasonable means of access remains, even if it is impeded by heavy traffic, there has been no compensable impairment of the right of access. (Friends of H Street v. City of Sacramento, supra, 20 Cal.App.4th at p. 167; People ex rel. Dept. of Public Works v. Wasserman (1966) 240 Cal.App.2d 716, 730.)^[7]

To be continue as Part III ……..

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Analysis and review provided by Vista Property line attorney.

^[1] Both parties refer to maps which were produced by the city and inserted into its opening brief. The maps were not trial exhibits. Border inserted them into its brief as well, and adopts them to illustrate its arguments. It describes them as being generally accurate. For clarity, we have attached copies of representative maps to this opinion as an appendix.

^[2] We decline Border’s requests that we watch a videotape it has provided as part of the respondent’s appendix. The videotape was not admitted into evidence during the trial and was not shown to the court or to the jury.

^[3] In closing argument, Border’s attorney asserted that Mr. Otis testified that there was sometimes traffic encircling the park, resulting in gridlock and an inability to enter the park. We are unable to discern the basis for this assertion from the transcript of Mr. Otis’s testimony.

^[4] Mr. Otis testified that on some occasions, he had to use “cross-county tactics to get off the roads and actually go to the outside and go around” to gain entry to the park when access was blocked in one direction and he had to “wait” to gain access from another direction. The meaning of the testimony about going “to the outside” and going “around” is unclear. However, it is clear that he did have access to his property from Airway Road. Rene Romero, another owner of property within the park, said that at times it was impossible to drive through on the eastbound lanes of Siempre Viva, but he did not testify that he was ever unable to reach his property by an alternate route. John Mawhinney, a real estate appraiser who testified for Border as to the effect the traffic had on sales within the park, testified that the two- to three-hour period of “gridlock” required “a certain amount of circuity of travel” for tenants and vendors and thus inconvenienced them. He did not testify that he had ever observed or that anyone had ever told him that tenants or vendors were ever completely unable to enter or exit the park.

^[5] The court found that the city rerouted the traffic effective January 1, 1995. Officer Schaaf testified that the K-rails were installed sometime in 1995 or 1996.

^[6] Border also claims that the city’s traffic engineer testified that the impact of the truck traffic on the business park was “both substantial and unnecessary.” We find no such testimony. Rather, on the reporter’s transcript page cited by Border, the city traffic engineer testified that the city was aware that the border-bound truck traffic would cause problems regardless of the route it chose. Elsewhere, he explained that the city chose the route it did because it expected it to cause the least disruption of any of the routes available to it.

^[7] Border contends that Rose v. State of California, supra, 19 Cal.2d 713 compels the conclusion that access was substantially impaired and thus compensable. It contends that in Rose, construction which resulted in narrowing the road fronting the plaintiff’s property was deemed to be a substantial impairment of the right of access. However, in Rose, the narrowing of the road did not substantially impair the right of access for the use to which the property was then being put. The property was then in use as an orchard or farm, including a residence. However, it was zoned industrial. The narrowing of the road resulted in frontage which was not wide enough for two trucks to pass in opposite directions. It thus rendered the property completely unusable for any “large industrial use” and therefore diminished the property’s market value. (Id. at pp. 718, 734, 735-736.) Here, in contrast, the record shows only that ingress and egress became more difficult and more circuitous for a few hours each day, and only temporarily. The situation in Rose is not analogous.