PERRIS, CITY OF v. STAMPER (To be called and continued to the late May 2016 calendar.)

Respondent’s Petition for Review

Cal.September 19, 2013

5913468 4! Supreme Court Case No.: IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF PERRIS, SUPREME COURT Petitioner, F | L E D V. SEP.19 2013 RICHARD C. STAMPER,etal., Frank A. McGuire Clerk Respondents. eputy AFTER A DECISION BY THE COURT OF APPEAL, FOURTH &ORCS APPELLATE DISTRICT, DIVISION TWO B.25(ad) me CASE NO. E053395 ON APPEAL FROM SUPERIOR COURT OF RIVERSIDE COUNTY, THE HONORABLE DALLAS HOLMES, JUDGE CASE NO. RIC524291 PETITION FOR REVIEW ERIC L. DUNN (Bar No. 176851) SUNNY ix. SOLTANI(Bar No. 209774) PAM K.LEE (Bar No. 246369) ADRIANA P. MENDOZA(BarNo.286659) ALESHIRE & WYNDER, LLP 18881 Von Karman Avenue,Suite 1700 Irvine, CA 92612 Telephone: (949) 223-1170 Facsimile: (949) 223-1180 Attorneys for Petitioner CITY OF PERRIS 01006/0003/150375.07 Supreme Court Case No.: IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF PERRIS, Petitioner, v. RICHARD C. STAMPER,etal., Respondents. AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION TWO CASE NO. E053395 ON APPEAL FROM SUPERIOR COURT OF RIVERSIDE COUNTY, THE HONORABLE DALLAS HOLMES, JUDGE CASENO. RIC524291 PETITION FOR REVIEW ERIC L. DUNN (Bar No. 176851) SUNNY &. SOLTANI (Bar No. 209774) PAM K.,LEE(Bar No. 246369) ADRIANA P. MENDOZA(Bar No. 286659) ALESHIRE & WYNDER, LLP 18881 Von Karman Avenue,Suite 1700 Irvine, CA 92612 Telephone: (949) 223-1170 Facsimile: (949) 223-1180 Attorneys for Petitioner CITY OF PERRIS 01006/0003/150375.07 TABLE OF CONTENTS Page ISSUES PRESENTED FOR REVIEW .......cccccccscsssscccecscssescscsesseveserecesececsecceeeeeee. 1 INTRODUCTION0.0.ceccccccccsesescscesscsvecsesesssssasasatssssvavacsesersvesesessvaveveveveseseeseees 1 SUMMARYOFTHECASE.....ccccccccccecescssssssesescscsesssesssscssssavssecseneresevesececesece. 6 LEGAL ANALYSISooeccccccccccscssssssssssscscscsesssscacsessssvavasstsavsvssscaveveveveveveseereseuseees 8 I. REVIEW IS WARRANTED TO RESOLVE CONFLICT IN PUBLISHED AUTHORITY AND TO SECURE UNIFORMITY AND CLARITY IN THE CASE LAW REGARDING THE SIGNIFICANT ISSUE OF WHO -- THE COURT OR THE JURY -- DETERMINES THE VALIDITY OF A DEDICATION REQUIREMENT, INCLUDING _ THE CONSTITUTIONALITY AND ESPECIALLY THE ROUGH PROPORTIONALITY PRONG OF THETEST,00...cececscessecseccececcecessescssvassscscsevscsasseveceeees 8 A. By Erroneously Holding That A Jury Must Decide The _Validity/Constitutionality Of A Dedication Requirement, The Opinion Creates A Conflict In Applicable Eminent Domain Published Case Law As To Whether Mixed Questions Of Fact And Law Must Be Decided By The Court Or The Jury, ......ccccccccccccccsseceoee 8 B. The Opinion Also Creates A Conflict As To Who Decides_ The Validity/Constitutionality Of A Dedication Requirement, Where Courts Have Ruled Consistently That The Validity/Constitutionality Of A___ Dedication Requirement, Including _ The Reasonable Probability Test, Is A Question For The Trial Court, Not A Jury, To Decide. oo... eccccssesessssscseceseceseese 13 C. By Erroneously Holding That A Jury Must Decide The _Validity/Constitutionality Of A Dedication Requirement, The Opinion Also Creates A Conflict In Well-Established Regulatory Takings Published Case Law As To Whether Mixed Questions Of Fact And Law Must Be Decided By The Court Or The JULY.eeeccecetsessesecscsecscessccevscsscsssenecssssevsasssesssuessesscssssacsecseves 18 01006/0003/150375.07 I. Ill. TABLE OF CONTENTS(cont.) REVIEW IS ALSO WARRANTED TO CLARIFY THE COURT’S HOLDING BECAUSE, GIVEN THE OPINION’S INCONSISTENCY WITH _PUBLISHED CASE LAW, THE OPINION CREATES SIGNIFICANT UNCERTAINTY AS TO WHICH ISSUES THE TRIAL COURT MUST DECIDE AND WHICH ISSUES THE JURY MUST DECIDE.000...cneeeeeeceeeeeeeeeeeeeeeeereaeeaes REVIEW MUST BE GRANTED TO CLARIFY THAT, CONSISTENT WITH PUBLISHED SUPREME COURT AND COURT OF APPEAL PRECEDENT, EVEN IF LAY TESTIMONY IS THE SUBJECT OF EXPERT OPINION, IT IS ADMISSIBLE IF IT STEMS FROM THE WITNESS’ OBSERVATIONS,oo... eeeeeeceesseceeeecneeteeerees A. The Court of Appeal Improperly Excluded The Lay Testimony of Percipient Witnesses Who Testified Exclusively To Matters They Personally Observed. ......... beeeeeeee 2] seveesees 23 viceeeaes 23 CONCLUSION 00.ceesecesceseeeenecnecnecnecneceneesaecnsesseeseaesnerseneessevseseeeesenseeas 27 CERTIFICATE OF WORD COUNT)...cececcseceesneeesesenenseevereseneeneeeeaeeens 28 il 01006/0003/150375.07 TABLE OF AUTHORITIES Page Federal Cases City ofMonterey v. Del Monte Dunes, (1999) 526 U.S. 687 oeeecesceessceesseeseeeceeceecesaeseeesaeeescessessesssateateseeses 21 Dolan vy. City ofTigard, (1994) 512 U.S. 374 oeceseeeneceeeeeeecseeesersesseseeseseesserecsaeeeaeeasenaeeas 17, 22 Nollan vy. California Coastal Comm'n, (1987) 483 US. 825ecceeseecceseeessecneeesersetaeceseeeeeceseseecarsereeseeseaseneeeas 17 State Cases Castillo v. Toll Bros., Inc , (2011) 197 Cal.App.4th 1172 20...ccc eeeeeeeeeeeseerececeeneesnseeeeseeeeenss 24, 27 City ofFresno v. Cloud, (1972) 26 Cal.App.3d 113 occceeseeeseeeseeseceneeeeeneteneeseeesneesaeeeeees 14, 22 City ofHollister v. McCullough, (1994) 26 Cal.App.4th 289 ooosecenseeseeeesseerseeeesenesaeeaeeeees 14, 17, 22 City ofPorterville v. Young, (1987) 195 Cal.App.3d 1260 oo... .eeeceececescceeeceeeesceeerecceeeeeseeseeeesereaes 14, 22 Emeryville Redevelopment Agency v. Harcros Pigments, Inc., (2002) 101 Cal.App.4th 1083oeeeeeeeeeeeseeeeeeeereeeeeseeeseeeaeeneeres 11-14 Healy y. Visalia etc. R.R. Co., (1894) 101 Cal. 585 oo.ceccceeeenccesceeseesseeeceneeeaeesaecseeeeseseeeesesseeaseseeatents 25 Hensler v. City ofGlendale, (1994) 8 Cal4th Doo.eceeecseeesseeeeseeenecrenerseseseesseceseeveeceaseaeeneeaesaesarears 19 Housing Authority v. Forbes, (1942) 51 Cab.App.2d 1 oo.ce ccececcccssecenesseeeeseseeetcecseceaceseeeesnrseaseeeneteaes 10 Contra Costa County Flood Control & Water Conserv. Dist. v. Lone Tree Invs., (ist Dist., 1992) 7 Cal-App.4th 930 ooo. cceseseeseeeseeenererseeneens 15-16, 22 Marshall v. Dept. of Water and Power, (1990) 219 Cal. App. 3d 1124 oooeeceeeereeesecseeesceseeseeasseeeeeaes 19-20 i 01006/0003/150375.07 TABLE OF AUTHORITIES(cont.) Page Mt. San Jacinto Community College Dist. v. Superior Court, (2004) 117 Cal. App. 4th 98 oo.eccecsecssceseetserseeeeeeseetsceesteeteeenatensaees 20 Oakland v. Pacific Coast Lumber & Mill Co., (1915) 171 Cal. 392 ooeeececseeseesereerenereneteeeeneeeesserecnetseteenesenresaeens 10 Orpheum Bldg. Co. v. San Francisco Bay Area Rapid Transit Dist., (1978) 80 Cal.App.3d 863.0... cecesseesssertceressersecsessccnsenseseeststessssseetatenees 20 People ex rel. Dept. Pub. Wks. v. International Tel. & Tel. Corp., (1972) 22 Cal. App. 3d 829 [99 Cal. Rptr. 836]...eeeteeeneeees 13 People ex rel. Dept. Pub. Wks. v. Nyrin, (1967) 256 Cal. App. 2d 288 [63 Cal. Rptr. 905]...eensrereeeeeees 13 People v. Maglaya, (2003) 112 CalApp.4th 1604oessseeseeseeeeteeceeceteeterneneereeeiee 24, 27 People vy. Manoogian, (1904) 141 Cal. 592eeeeeeeecereeeeeeereeersesecneceesesssesesesseeeesecseeeeeesenas 26 People v. Ravey, (1954) 122 CalApp.2d 699oiecece cnetescreeesceeesesseceseesserecsessesneseseeees 26 People v. Ricciardi, (1943) 23 Cal.2d 390... eeeeccsececeeeteeceeeereeseersesesesenseesseetneaes 10-11, 14, 20 Redevelopment Agency v. Tobriner, (1984) 153 Cal. App. 3d 367 oeec ceceececcneceeeseteneseesesseetsesetaceeeeeetesenaeens 20 San Diego Gas & Electric v. Superior Court, (1996) 13 Cal. 4th 893 oocececsecsecreeeteeerersscescseesaeseetsesensenseesece 19-20 State Route 4 Bypass Authority v. Superior Court, (1st Dist., 2007) 153 Cal.App.4th 1546.00.00eeeenter 15-17, 22 Vallejo & Northern RR v. Reed Orchard Co., (1915) 169 Cal. 545occcceecneeceteenecescnsetaeeneseseeeseeeesaenaeerrersenueneeeeees 10 Federal Statutes 42 U.S.C.S. § 1983 o..eccccccenceeeseeeeeeeeeseensetsenecesceseeeecessesesessnssnesessssasseseseaseaeeensess 21 li 01006/0003/150375.07 TABLE OF AUTHORITIES(cont.) Page State Statutes Cal. Const. art. 1 § 19... cceccccsscnscceecseeeseeceseeeneeseeeseseeneesaeessesesreersseeersaseesssoneeeets 19 California Evidence Code Section 800(a).0..... eee ees eeeeeesseeceseessesessesessneseees 26-27 ili 01006/0003/150375.07 ISSUES PRESENTED FOR REVIEW 1, Should a jury determine the validity of and, more specifically, the constitutionality of a dedication requirement -- especially, the rough proportionality prong ofit -- where a mixed question of fact and law exists, and where in the history of eminent domain and regulatory takings law, courts have always held that such mixed questions of fact and law are determined by the court? 2. Should lay testimony of percipient witnesses who testified exclusively to matters they personally observed be excluded, where this Court and numerous Courts of Appeal have consistently held that, even if the subject testimony is generally for an expert, lay witness testimonyis admissible if it stems from the witness’s observations? INTRODUCTION Under well-settled eminent domain, law,all issues, including mixed questions of fact and law, must be determined by the trial court; only the amount of the award of compensation has ever gone to the jury. As such, the validity and constitutionality of a dedication requirementare issues for the trial court - not the jury - to decide. Yet, in its Opinion, the Fourth Appellate District, Division Two, has erroneously departed from over 100 years of established eminent domain law, injecting confusion and conflict into the law where noneexisted. (See 1 01006/0003/150375.07 City of Perris v. Stamper (August 9, 2013) Fourth App. Dist., Div. Two, Case No. E053395, attached hereto as Exhibit “A” (“Opinion”).) In the face of decades of precedent to the contrary, the lower court holds that the constitutionality, specifically, the rough proportionality (a constitutional test under Dolan) and ihe reasonable probability of a dedication requirementare questions for the jury to decide. In doing so, the Opinion usurps the trial court’s well-established power to decide the constitutionality and the validity of a dedication requirement, even if such issues are mixed questions of fact and law. Moreover, the Opinion will have devastating, unintended consequencesat the trial court level, where the jury will be required to determine the complicated, heavily litigated issue of “rough proportionality,” and more broadly, the constitutionality of a dedication requirement. This case is doctrinally difficult since it combines two distinct lines of precedent. First, the determination of whether a particular governmental act constitutes a "taking" that constitutionally requires just compensation is made by a judge. Historically, a judge -- not a jury -- decides whether an uncompensated taking is permissible (even if there is a mixed question of fact and law), and in an appropriate case looks at (amongother things) the rough proportionality between a particular development and the governmental requirements for that development. By contrast, in an 01006/0003/150375.07 eminent domain case, a jury -- not a judge -- decides the value of the property. That's true even if certain governmentalacts that mightaffect the value ofthe property are at issue. Hence, valuation (the “award”) is usually decided by a jury. Which principle governs here? It appears that the Court of Appeal here holds that because the constitutional issue involves determinations of facts, a jury gets to decide the issue.’ In Justice King's words, "a jury must be allowed to determine whether, and to what extent, the [] take . . . is roughly proportionate to the Stamper Property's anticipated impacts on area traffic if and when the Stamper Property is developed." A jury, then, gets to determine "whether all or any part of the 1.66-acre take could be constitutionally imposed as a dedication condition on development." (Opinion, p. 34.) At best, this statementis too broad. In a waythat's critically important. "It is not clear from the Court of Appeal’s opinion if the lower court believes that both Nollan and Dolan prong goto jury orif the jury should only decide the “rough proportionality”test of the Dolan prong. This Court should clarify the lower court’s holding on this issue, especially because this is a published opinion. The City hopes that, at the very least, the lower court is only talking about the Dolan prong. Toalso sendthe purely legal question of Nollan to the jury would be preposterous. But since the lower court throughout the Opinion stated that the jury decides the “constitutionality” issue and that “constitutionality” issue also entails a Nollan analysis, the City sought clarification on this issue on petition for rehearing, which was denied. 01006/0003/150375.07 It's possible that a jury could get to make underlying predicate findings of fact. Again, in all precedent, in constitutional cases, a judge (rather than a jury) gets to make those predicate factual findings as part of the constitutional analysis. And over 100 years, in all eminent domain cases, the trial courts decide mixed questions of law and fact. But perhaps the Court could rely on the fact that valuation of eminent domain casesis assigned to a jury to decide that predicate factual questions, even on rough proportionality, get transferred to a jury. But even if that's the case, the lower court errs -- and this Court should grant review to correct this error, which will have immense, unintended consequences-- whenit holds that the dispositive legal issue -- whether a dedication requirement, in other words an uncompensated taking, would violate the Constitution -- gets decided by the jury. Perhaps a jury might be called upon to makecertain findings of fact relevant to that legal determination.” For example, a jury might be asked "How much traffic will development of the Stamper Property cause?" and/or "What percentage of the traffic on the road that runs through the ? Again it is important to note that historically, on legal issues, a judge, not a jury, is and has always been the relevant fact finder even on mixed questions of fact and law. 01006/0003/150375.07 Stamper Property will consist of traffic generated by the Propertyitself, as opposedto traffic from some other source?" Those are factual questions, and indeed they're relevant to whether there's rough proportionality between the taking and the approval of the development and perhaps could go to the jury. But whether those predicate facts satisfy the constitutional requirement of "rough proportionality" is purely a question of law. Even if the jury decides thosefacts,it absolutely does not and should not decide the law. Judges do that. Whethera certain set of facts suffices to satisfy the dictates of the Constitution is purely a legal issue, subject to initial determination by a trial court and, thereafter, de novo review on appeal. Juries don't get deference on that issue. Nor do they get to decide the issue in the first instance. That's for the judge! So, yes, perhaps a jury could properly be instructed to find certain predicate facts. Would the City try to take a portion of the property? How muchtraffic would be generated? Things ofthat nature. But a jury is by no means "allowed to determine whether, and to what extent, the [] take is roughly proportionate” or whether the take "could be constitutionally imposed as a dedication condition on development." That ultimate task is for the judge. Informed, perhaps, by the jury's special findings of fact. 01006/0003/150375.07 That's a meaningful difference, because courts determine the constitutionality of a governmental act. Not juries. This Court must correct the lower court’s holdings; otherwise, this Opinion will undo years of precedent and can potentially open up flood gates related to “legal” issues going to the jury if they involve any factual determination. This Opinion can be cited for the proposition that, going forward, really no legal question should ever be decided by trial court if it involves any factual dispute. That cannot be what the lowercourt intends to do! SUMMARYOF THE CASE The City of Perris (“City” or “Petitioner”) filed an eminent domain action against Richard C. Stamper, Donald D. Robinson and Donald D. Robinson, LLC (collectively, “Owners” or “Respondents”), seeking to acquire a small portion of Respondents’ vacant, unimproved property to construct a right-of-way in an unimprovedbut rapidly growing part of the City. The City imposed a dedication requirement on the property, which was held reasonably probable and constitutional under the Nollan/Dolan standard during a benchtrial. Both at the trial and appellate levels, Respondents attempted to complicate well-settled eminent domain law by arguing, in part, that the trial court erred in deciding the reasonable probability of a dedication requirement. 01006/0003/150375.07 The Court of Appeal issued a tentative decision in November, 2012. Following oral arguments in February, 2013, the Court of Appeal issued a revised tentative opinion in May, 2013. In its revised tentative decision, the court below held that a jury could determine whether there is a reasonable probability the City would require a taking. Additionally, and more disturbingly, the court, sua sponte and without allowingthe parties to brief the issue, determined that the constitutionality of a dedication requirement, specifically, the “rough proportionality” issue should also be decided by a jury ratherthanthetrial court.° During oral argument held on June 25, 2013, the City argued that constitutional standards must be decided by the court rather than a jury, and cited several cases which supported this argument. Despite the City’s urging the court to once again reconsiderits tentative opinion, the Court of 3 Moreover, the Owners never raised this issue at the trial level or on appeal. In fact, in their Partial Opposition to the City’s Motion in Limine No. 1, concerning issues to be decided by the court prior to a jury trial, the Owners expressly agreed with the City’s Motion to Bifurcate on the issue of the constitutionality of the dedication requirement. (Appellant’s Appendix (“AA”) [volume: page] 6:1386 [Tab 40] [“The Stamper/Robinson Owners agree-- in part -- with the City’s Motion in Limine No. 1: the Court does need to determine certain issues related to the City’s claimed dedication requirement up front, before a jury is empanelled. Specifically, at the onset the Court needs to determine: . . . Whether the City’s claimed dedication requirement is unconstitutional because it flunks the U.S. Supreme Court’s Nollan/Dolan “essential nexus” and “rough proportionality” tests”| [emphasis added]; Reporter’s Transcript (“RT”) [volume:page] RT 43:1-7 [“[BJecause it’s the City’s burden of proof on the constitutionality issue, | don’t think there’s a real dispute about [the City’s motion in limine to bifurcate the trial on that issue]. I think mt the Court would rule on the papers against the City.”] [emphasis added]. 01006/0003/150375.07 Appealissuedits final Opinion on August 9, 2013, holding that both the issues of reasonable probability and rough proportionality should be determined by the jury, and a jury should be allowed to determine whether a “take could be constitutionally imposed as a dedication condition on development.” (Opinion, p. 34.) Additionally, despite well-established law to the contrary, the lower court improperly excluded staff testimony. The City filed a petition for rehearing, which was denied on September5, 2013. LEGAL ANALYSIS I. REVIEW_IS WARRANTED TO RESOLVE CONFLICT IN PUBLISHED AUTHORITY AND TO SECURE UNIFORMITY AND CLARITY IN _ THE CASE LAW REGARDING THE SIGNIFICANT ISSUE OF WHO -- THE COURT OR THE JURY -- DETERMINES THE VALIDITY OF A DEDICATION REQUIREMENT, INCLUDING THE CONSTITUTIONALITY AND ESPECIALLY THE ROUGH PROPORTIONALITY PRONG OF THE TEST. A. By Erroneously Holding That A Jury Must Decide The Validity/Constitutionality Of A Dedication Requirement, The Opinion Creates A Conflict In Applicable Eminent Domain Published Case Law As To Whether Mixed Questions Of Fact And Law Must Be Decided By The Court Or The Jury. In the history of eminent domain law,all issues, including mixed questions of fact and law, must be determined by thetrial court; only the amount of the award of compensation has ever gone to the jury. The following courts haverepeatedly upheld this proposition: 01006/0003/150375.07 /// /T/ 1) This Court. (See,. e.g, Vallejo & Northern RR v. Reed Orchard Co. (1915) 169 Cal. 545; People v. Ricciardi (1943) 23 Cal.2d 390, 402 [holding that in an eminent domain proceeding, “all issues except the sole issue relating to compensation are to be tried by the court, and if the court does not make special findings on those issues, its findings thereon are implicit in the verdict awarding compensation. .... Ut is only the “compensation,” the “award,” which our constitution declares shall be found and fixed by a jury. All other questions offact, or ofmixedfact and law, are to be tried, . . . without reference to a jury.’”| [emphasis added]; Oakland v. Pacific Coast Lumber & Mill Co. (1915) 171 Cal. 392, 397 {holding that all questions of fact, or of mixed fact and law, are to be tried, as in many otherjurisdictions they are tried, without reference to ajury].) 2) The First Appellate District. (See, e.g., Housing Authority v. Forbes (1942) 51 Cal.App.2d 1 [holding that in eminent domain, questions of fact or fact and law for the court to decide include issues such as whether access has been impaired, public use, and necessity].) 01006/0003/150375.07 3) The Fourth Appellate District. (See, eg., Emeryville Redevelopment Agency v. Harcros Pigments, Inc. (2002) 101 Cal.App.4th 1083, 1116 (‘Emeryville Redevelopment Agency’) [“[T]he general rule in eminent domain actions is that the right to a jury trial... goes only to the amount of compensation. . . the issue of defendant’s damages goes to the jury, and all other issues of law or fact must be decided by the court. Consistent with this rule, the court, rather than the jury, typically decides questions concerning the preconditions to recovery ofa particular type ofcompensation, even if the determination turns on contested issues of fact.”| [citations and quotations omitted] [emphasis added].) A case worthy of discussion and applicable to this case is this Court’s decision in Ricciardi. The issue in Ricciardi was whether the impairment of access to existing streets constituted compensable severance damages and who wasto determine whether substantial impairmentexisted. (Ricciardi, supra, 23 Cal.2d 390.) Hence, the case involved a factual analysis. This Court decided that such factual analysis wasthetrial judge’s responsibility. (/d. at 402.) /// /// /// 10 01006/0003/150375.07 Nevertheless, the Opinion erroneously holds, despite overwhelming precedent to the contrary, that the constitutionality of a dedication requirement is for the jury. In particular it holds that a jury “must be allowed to determine whether, and to what extent, the [] take is roughly proportionate” or whether the take “could be constitutionally imposed as a dedication condition on development.” (Opinion, p. 34.) Despite nearly 100 years of eminent domain case law holding that mixed questions of fact and law must be determined by the trial court, the Court of Appeal has held that “a jury must be allowed to determine whether, and to what extent, the [] take . . . is roughly proportionate”to the property’s impacts and whetherthe take “could be constitutionally imposed as a dedication condition on development.” (Opinion, p. 34.) In fact, in 2002, the Fourth Appellate District itself in Emeryville Redevelopment Agency, supra, recently applied Ricciardi to rule that in an eminent domain case an issue of even mixed law and fact and even related directly to value is decided by the Court. (Emeryville Redevelopment Agency, supra, 101 Cal.App.4th at 1116.) In that case, the agency had brought an eminent domain proceeding against a corporate landowner. Duringtrial, the court withheld from the jury the landowner’s claim for loss of goodwill, which the appellate court affirmed on appeal. Following an 1] 01006/0003/150375.07 explanation of the general rule in eminent domain law that mixed questions fact and law are decided bythetrial court, the Court ofAppealexplained: Consistent with this rule, the court, rather than the jury, typically decides questions concerning the preconditions to recovery of a particular type of compensation, even if the determination turns on contested issues of fact. Perhaps most analogous for present purposes is the rule applicable to claims for “severance damages,” i.e., harm caused to the landowner’s remaining property when only a part of the property is condemned . . . The determination whetherthis condition is present in a particular case is entrusted to the trial court . .. Although the question has often been described as one of “law” ... it is decided by the court evenif it involvesissues offact (see People ex rel. Dept. Pub. Wks. v. Nyrin (1967) 256 Cal. App. 2d 288, 292 [63 Cal. Rptr. 905] [“What constitutes a single parcel of land in the contemplation of section 1248 is essentially a question of law [citation] but may involve issues of fact. [Citations.] ... . Insofar as the evidence is subject to opposing inferences,it must upon a review thereof, be regarded in the light most favorable to the ruling of the trial court.”]; People ex rel. Dept. Pub. Wks. v. International Tel. & Tel. Corp. (1972) 22 Cal. App. 3d 829, 833-834 [99 Cal. Rptr. 836] [trial court ruled “as matter of law” that property taken and property remaining did not possess “unity of use”; reviewing court found “ample evidence to support the court’s findings of fact with regard to the use of the property”)). (/d. at 1116-17 [emphasis added].) Yet, in direct contradiction with its decision in Emeryville Redevelopment Agency and despite overwhelming eminent domain precedent by this Court and numerous Courts of Appeal to the contrary, the Fourth Appellate District has held that the constitutionality of a dedication requirement, specifically the rough proportionality test, must be determined by a jury. (Opinion,p. 34.) 12 01006/0003/150375.07 Here, much like in Emeryville Redevelopment Agency, reasonable probability and constitutionality/rough proportionality are “preconditions to recovery of a particular type of compensation,” which the court has historically decided. (See Emeryville Redevelopment Agency, supra, 101 Cal.App.4th at 1116-17.) While these may be mixed questions of law and fact, it is clear that in eminent domainlaw,“the right to a Jury trial... goes only to the amount of compensation.” (See id. at 1116 [emphasis added].) To the extent the Opinion below holds otherwise, this Court should grant review to clarify the conflict in the law with this Court’s holding in Ricciardi, supra, 23 Cal.2d 390, as well as numerousother decisions bythis Court and the Courts ofAppeal. B. The Opinion Also Creates A Conflict As To Who Decides The __Validity/Constitutionality Of A Dedication Requirement, Where Courts Have Ruled Consistently That_ The _Validity/Constitutionality Of A Dedication Requirement, Including The Reasonable Probability Test, Is_A Question For The Trial Court, Not A Jury, To Decide. In line with the eminent domain precedent explained above, courts have ruled repeatedly that the validity/constitutionality of a dedication requirement (even if it is a mixed question of fact and law) is a question for the trial court, not a jury. (See, e.g., City of Fresno v. Cloud (Sth Dist., 1972) 26 Cal.App.3d 113 (“Fresno”); City of Porterville vy. Young (Sth Dist., 1987) 195 Cal.App.3d 1260 (“Porterville”); City of Hollister vy. 13 01006/0003/150375.07 McCullough (6th Dist., 1994) 26 Cal.App.4th 289 (“Hollister”); Contra Costa County Flood Control & Water Conserv. Dist. v. Lone Tree Invs. (1st Dist., 1992) 7 Cal.App.4th 930 (“Contra Costa’); State Route 4 Bypass Authority v. Superior Court (lst Dist., 2007) 153 Cal.App.4th 1546 (petitionfor review denied November 14, 2007) (“State Route’’).) Moreover, the First Appellate District in Contra Costa, supra, 7 _ Cal.App.4th at 933, makes clear that the validity/constitutionality of a dedication requirement goes to the trial court. In Contra Costa, a water district was acquiring a portion of an undeveloped commercial parcel, subject to a dedication requirement, for a flood control project. Theparties tried the issue of reasonable probability of the dedication before the judge withouta challengeto the court’s right to make that ruling. Thetrial court found a reasonable probability that the district would properly require dedication as a condition of development. Thejury instruction requested by the waterdistrict was as follows: There is a reasonable probability that the subject property cannot be developed to its highest and best use without a dedication to the City of the parcel being condemned in this action. Therefore, the condemnedparcel shall be valued on the basis of the use that can be madeofthe parcel without such dedication. That use is agricultural. (Id. at 933.) /// /// 14 01006/0003/150375.07 The trial court deleted the last sentence regarding the agricultural use. (/d.) The appellate court ruledthat the trial court properly decided the factual question regarding reasonable probability of the dedication requirement but erred by omitting the last sentence regarding agricultural use. The appellate court reasoned that“failure to give the jury instruction as requested . . . confused the jury and was prejudicial.” (Id. at 937 [emphasis added].) Thus, in Contra Costa, the First Appellate District recognized the court’s power to determine the validity/constitutionality of the take, including the issue of reasonable probability, while the jury’s role on remandwasto “value the take for agricultural purposes.” (d.) In a recent case more directly on point to the case at hand, the Court ofAppeal in State Route, supra, 153 Cal.App.4th 1546, 1551, dealt with the determination of the constitutionality of a dedication requirement. In State Route, a bypass authority was condemning portions of properties to construct a highway. (/d. at 1551.) The authority offered to pay for the portions at agricultural values, based on the fact that property owners would be required to dedicate those portions as a condition of development of their property, and those portions could be used for no other purpose than the highway. Several property owners argued that 15 01006/0003/150375.07 payment ofjust compensation atagricultural values was improper because the conditional dedication requirement was unconstitutional. Ud.) The State Route Court held for a dedication requirement to be valid such that it triggers a lower agricultural valuation, the dedication requirement must be both (i) reasonably probable, and (ii) constitutional, that is, substantially further a legitimate government objective (the nexus standard under Nollan v. California Coastal Comm’n (1987) 483 U.S. 825), and be roughly proportional to the impacts of development (the rough proportionality standard under Dolan v. City of T.igard (1994) 512 US. 374). (State Route, supra, 153 Cal.App.4th at 1551.) The court reasoned: Essential to the determination that a dedication condition is reasonably probable is a finding that such a requirement would be legally permissible: “({P|roof that a conditional dedication is a ‘reasonable probability’ requires a showing not only that plaintiff would probably have imposed the dedication condition if defendants had sought to develop the property, but also that the proposed dedication requirement would have been constitutionally permissible. ... [I]t is not a ‘reasonable probability’ that a governmental entity would actually succeed in imposing an unconstitutional dedication requirement.” Id. at 1551 (quoting Hollister, supra,26 Cal.App.4th at 297) (emphasis added). The Court went on to hold that the dedication requirement wasvalid on the grounds that it was reasonably probable and constitutional. (Id. at 1556-59.) Thus, in the most recent case dealing with the validity/constitutionality of a dedication requirement, the trial court, and 16 01006/0003/150375.07 later the Court of Appeal, determined the validity/constitutionality of a dedication requirement.* Yet here, in spite of the well-established power of the court to determine the issue of the validity/constitutionality of a dedication requirement, the Opinion erroneously holds that “{o]n remand, a jury can determine whether there is a reasonable probability the City would require the take . . .” or even worse, that the jury decides the “constitutionality”® of the dedication requirement. (Opinion, p. 32, 34.) Reviewis appropriate in this case, where the Court of Appeal’s holding is inconsistent with the long line of eminent domain law tothecontrary. /// iT] /// 4 Even though State Route is the most recent, on point case on this issue, the Court of Appeal dismissed the City’s position during oral argumentthat State Route supports the proposition that the validity/constitutionality of a dedication requirement is determined by the court, not a jury. The Court’s only reasoning for this wasthat perhaps these issues were ‘decided by the trial court in State Route becausetheparties had stipulated to a benchtrial. Yet, here, as explained above, the Owners expressly agreed with the City’s position thatthe trial court determine the constitutiona ity of the dedication requirement. (AA 6:1386 [Tab 40]; RT 43:1-7.) Furthermore, the Court is wrong in its criticism of the State Route court on the “proportionality” issues. (Opinion,p. 39.) 5 Again,it is not clear here if the Court is only talking about Dolanoralso Nollan, since the “constitutionality” analysis also entails the essential nexus Nollan test. 17 01006/0003/150375.07 C. By Erroneously Holding That A Jury Must Decide The Validity/Constitutionality Of A Dedication Requirement, The Opinion Also Creates A Conflict In Well-Established Regulatory Takings Published Case Law As To Whether Mixed Questions Of Fact And Law Must Be Decided By The Court Or The Jury. Inverse condemnation actions are analogous to eminent domain actions, and courts have often drawn analogies between the two to determine an issue of law.(See, e.g., Marshall v. Dept. of Water and Power (1990) 219 Cal. App. 3d 1124, 1140.) Like eminent domain actions, inverse condemnation cases are typically bifurcated into two phases. California courts hold that there can be no decision by a jury on the first phase regardingliability, even when disputed factual issues are involved. (See, e.g., San Diego Gas & Electric v. Superior Court (1996) 13 Cal. 4th 893, 951 [“Plaintiffs complain they were denied their right to jury trial, apparently referring to their right to receive ‘just compensation, ascertained by a jury unless waived . . .” (Cal. Const. art. I § 19.) But as we reaffirmed in Hensler v. City of Glendale (1994) 8 Cal.4th 1, 15, ‘the right to a jury trial applies in inverse condemnation actions, but that right is limited to the question of damages.’ There is no right to jury trial on the issue whether there has been a taking in the first instance.”| [emphasis added].) 18 01006/0003/150375.07 Even “in an inverse condemnation proceeding where liability is completely a factual question, does the plaintiff have a right to a jury trial on the issueof liability? We answer, ‘No.’ ... Time and again, our trial courts act capably and fairly as triers of fact.” (Marshall v. Dept. of Water and Power, supra, 219 Cal. App. 3d at 1140 [emphasis added]; see also Redevelopment Agency v. Tobriner (1984) 153 Cal. App. 3d 367, 376 [“The determination of whether an inverse taking has occurred is a nonjury question, even when there are factual questions involved.” [emphasis added]; Orpheum Bldg. Co. v. San Francisco Bay Area Rapid Transit Dist. (1978) 80 Cal.App.3d 863, 868 [holding that even where the determination of liability involves factual questions, the only issue to be determined by the jury is compensation]; Mt. San Jacinto Community College Dist. vy. Superior Court (2004) 117 Cal. App. 4th 98, 103 [holding that the issue of just compensation is tried by a jury; all other issues of fact and of mixed questions oflaw andfact are tried by a court].) Thus, under established precedent in both eminent domain and regulatory case law,the only issue appropriate for jury determination is the “question of damages.” (See, e.g., Ricciardi, supra, 23 Cal.2d at 402; San Diego Gas & Electric, supra, 13 Cal. 4th at 951.) As such, “whether the dedication may beconstitutionally imposed” (Opinion, p. 34) is a matter for the court, not a jury, to decide. To send the legal question of the 19 01006/0003/150375.07 “constitutionality” of a dedication requirement to the jury would bea first and would lead to absurd results. Review is necessary to clarify this conflict in the law.® ° Moreover, the Court of Appeal is mistaken in its reading of the U.S. Supreme Court’s holding in City of Monterey v. Del Monte Dunes (1999) 526 U.S. 687, 702-03 (“Del Monte Dunes”), a 42 ULS.C.S. § 1983 case, which is wholly distinct from an eminent domain or a takings case. In fact, the Supreme Court expressly distinguishedits holding from takings cases. The Opinion relies on Del Monte Dunes, supra, 526 U.S. at 721-22, for the proposition that “whether a property owner has been deprived ofall economically viable use of his property is predominantly a question offact for the jury to determine.” (Opinion, p. 31.) However, what the Opinion misses is that Del Monte Dunes is a 42 U.S.C.S. § 1983 case, and not an exaction case underthe Fifth Amendment. In reaching its decision that a jury trial was appropriate, the U.S. Supreme Court clearly stated that the rough proportionality standard under Dolan, a Fifth Amendmentissue, did not apply to the Del Monte Dunescase. (Id. at 702-03 [“Webelieve, accordingly, that the rough-proportionality test ofDolan is inapposite to a case such as this one.”][emphasis added].) Rather, the Court held that in federal court, a plaintiff bringing a suit under 42 USC§ 1983 making an “as applied”challenge to an exaction as a taking may be entitled to a jury trial because “claims brought pursuant to 42 U.S.C.S. § 1983 sound in tort” and tort claims are in the purview of the jury. (/d. at 709-710.) The Supreme Court stated: “We do not address the jury’srole in an ordinary inverse condemnation suit [under the Fifth Amendment]. The action here was brought under § 1983, in a context in which the jury’s role in vindicating constitutional rights has long been recognized by the federal courts.” (Jd. at 721 [emphasis added].) Further, in an analysis which is helpful to this Court, the Court explained that: “We determine whether issues are proper for the jury, ...[by looking] to history to determine whether the particular issues, or analogous ones, were decided by judge orbyjury in suits at commonlaw...” (Jd. at 718.) (Continued...) 20 01006/0003/150375.07 Il. REVIEW_IS ALSO WARRANTED TO CLARIFY THE COURT’S HOLDING BECAUSE, GIVEN THE OPINION’S INCONSISTENCY WITH PUBLISHED CASE LAW, THE OPINION CREATES SIGNIFICANT UNCERTAINTY AS TO WHICH ISSUES THE TRIAL COURT MUST DECIDE AND WHICH ISSUES THE JURY MUST DECIDE. The Court of Appeal holds: On remand, a jury can determine whether there is a reasonable probability the City would require the take to be dedicated as a Stamper Property developmentcondition . . . In addition, . . . [the court] should instruct the jury not to confuse the reasonable probability question with the separate distinct question of whether the dedication condition may be constitutionally imposed, that is, whether the nature and extent of the dedication condition is roughly proportionate to the traffic and other impacts the Stamper Property would have developed aslight industrial property. (Opinion, pp. 32-33 (citing Dolan v. City of Tigard, supra, 512 US. at 391.) | //] /// /// (...Continued) As explained above, here it is undisputed that history supports that from 1968 to present, the reasonable probability/validity/constitutionality of dedication requirements in all eminent domain seminal cases have been strictly determined by trial courts. (See, e.g., Contra Costa, supra, 7 Cal.App.4th at 937 [holding thatthe trial court properly decided the factual question regarding reasonable probability of the dedication requirement but erred by omitting the last sentence regarding agricultural use. The appellate court reasoned that “failure to give the jury instruction as requested ... confused the jury and was prejudicial”]; see also Fresno, supra, 26 Cal.App.3d 113; Porterville, supra, 195 Cal.App.3d 1260; Hollister, supra, 26 Cal.App.4th 289; State Route, supra, 153 Cal.App.4th 1546.) 21 01006/0003/150375.07 The lower court goes on to hold: On remand, a jury must be allowed to determine whether, and if so to what extent, the 1.66-acre area of the take, or the 94- foot-wide swath through the Stamper Property, is roughly proportionate to the Stamper Property’s anticipated impacts on areatraffic if and when the StamperProperty is developed. Based on the evidence presented during the bench trial, reasonable jurors could differ on whetherall or any part of the 1.66-acre take could be constitutionally imposed as a dedication condition on development. (Opinion,p. 34.) Thus, the Opinion seemsto hold that a jury determines whether the dedication requirement is reasonably probable/valid and constitutional if the court first holds that there is sufficient evidence to allow reasonable probability/constitutionality to go to the jury. However, the Opinion is silent as to how or when these determinations are made during trial and whetherall of the constitutionality test, including the “nexus” Nollan prong, goesto the jury. Does the Opinion hold that everything must go to the jury: 1) reasonable probability, and 2) constitutionality (Nollan and Dolan (including the “nexus”test and the “rough proportionality” test) during one valuation trial? Or should every eminent domain action result in a two-part trial, where the trial Court determines Nollan -- the “essential nexus” and then the “rough proportionality” prong of Dolan and “reasonable probability” go to the jury during the valuation trial? Or, on the other hand, does the lower court hold that the jury must first determine “reasonable 22 01006/0003/150375.07 probability,” the court then determines the Nollan standard, and the jury determines the entire Dolan test and valuation? The lower court does not clarify this issue, which will certainly lead to procedural confusion in eminent domainactions and Jater appellate court decisions. Ill. REVIEW MUST BE GRANTED TO CLARIFY THAT, CONSISTENT WITH PUBLISHED SUPREME COURT AND COURT OF APPEAL PRECEDENT, EVEN IF LAY TESTIMONY IS THE SUBJECT OF EXPERT OPINION, IT IS_ ADMISSIBLE IF IT STEMS FROM THE WITNESS’ OBSERVATIONS. A, The Court of Appeal Improperly Excluded The Lay Testimony of Percipient Witnesses Who | Testified Exclusively To Matters They Personally Observed. The California Supreme Court and numerous Courts of Appeal have consistently held that, even if the subject testimony is generally for an expert, lay witness testimony is admissible if it stems from the witness’ observations. The trial court has wide discretion to determine whether testimony is admissible as lay testimony, and such a determination should only be overturned by the Court of Appeal if the trial court abused its discretion. (See, e.g., People v. Maglaya (2003) 112 Cal.App.4th 1604, 1609; see also Castillo v. Toll Bros., Inc (2011) 197 Cal.App.4th 1172, 1199.) Nonetheless, the lower court has excluded the lay testimony of percipient witnesses, Mr. Motlagh and Mr. Belmudez, who both testified 23 01006/0003/150375.07 exclusively as to matters they personally observed. Mr. Motlagh and Mr. Belmudeztestified exclusively as to matters they observed in their capacity as City employees, where they daily interact with, and are knowledgable on, dedication requirements as conditions of approval (RT 93:6-19, RT 138:19-139:3), adoption and update of the Circulation Element (RT 99:18- 103:8), traffic studies (RT 105:21-109:15, RT 139:10-141:3), and other foundational matters affecting the Property. Review is appropriate here, where this Opinion would call into question over a century of established case law. The lower court’s holding would mean that this Court, in deciding the case of Healy v. Visalia etc. R.R. Co. (1894) 101 Cal. 585, all the way back in 1894, wasincorrect. In Healy, a passenger on a train was asked to testify as to whether an average person could withstand the force of being thrown from a railroad car, after observing a passenger being thrown from the train whenthe car derailed. (/d. at 589.) Is this generally the subject of expert testimony? Perhaps. However, what matters is that the testimony “did not call for an opinion from [the witness] depending upon facts which he had subsequently learned, but he was asked to describe one ofthe facts ... which he had personally observed andfelt.” (/d. at 589-590.) “A witness who had a personal experience or knowledge ofthe sensationis competent to testify, although his answeris only his opinion ofthe matter.” (/d.) 24 01006/0003/150375.07 The Court of Appeal’s holding would also mean that this Court wrongly decided People v. Manoogian (1904) 141 Cal. 592. In Manoogian, a witness was askedto testify as to whether a party “acted rationally.” (Id. at 594.) This Court held that this testimony was admissible because, while the question of mental sanity may be proper for expert testimony, any witness is allowed to testify as to matters that are “the result of the observation of the witness.” (Id. at 597-598.) Additionally, the lower court’s holding would mean that the Third Appellate District was incorrect in People v. Ravey (1954) 122 Cal.App.2d 699. In Ravey, witness testimony on whether a person was subject to drug- induced intoxication was admissible, because though such testimony is generally the subject for experts, “any layman can give his opinion based upon his own observation.” (/d. at 702-703.) The Court of Appeal’s decision would change the meaning of California Evidence Code Section 800(a). This Section clearly allows testimony on the perceptions of a witness, and there are no limitations relating to expert testimony. If the Court maintains its opinion, the practical result is that a lay witness cannot testify as to his or her perceptions if that testimony could also be the subject of expert testimony. This is clearly contradictory to Section 800 of the Evidence Code. 25 01006/0003/150375.07 Furthermore, the trial court has broad discretion to admit lay testimony under Evidence Code Section 800, and the appellate court must show such discretion was abused to challenge it. (See, e.g. People v. Maglaya, supra, 112 Cal.App.4th at 1609; see also Castillo v. Toll Bros., Inc., supra, 197 Cal.App.4th at 1199.) In Castillo, testimony ofprincipals in defendant companies was provided to address whether compensation under construction subcontracts was sufficient. (/d.) The testimony was challenged, and overruled, in the trial court as improper for lay testimony. (/d.) The Court of Appeal found that, there was no evidence showing the trial court abused its discretion. (/d.) Similar to the current case, both witnesses provided lay testimony based on long experience in the respective building, growing directly out of their own work on the issues before the Court. (/d.) As such, the law was improperly applied to exclude Mr. Belmudez, and Mr. Motlagh’s testimony was improperly excluded. Each witness testified in accordance with established case-law and Section 800 of the Evidence Code on matters they personally observed, and neither witness testified as to subsequently discovered facts. This Court has long held such testimony admissible, and to the extent the Court of Appeal holds otherwise, this Court should grant review to clarify the conflict in the law between this Court’s precedent and the lower court’s inconsistent holding. 26 01006/0003/150375.07 CONCLUSION For all of the foregoing reasons, the City respectfully requests that this Court grant review. Dated: September 18, 2013 ALESHIRE & WYNDER, LLP ERIC L. DUNN SUNNYK. SOLTANI Soft eys for Petitioner CITY OF PERRIS 27 01006/0003/150375.07 CERTIFICATE OF WORD COUNT I certify that pursuant to Rule 8.204(c)( 1) of the California Rules of Court, the attached Petitioner’s Petition for Review was produced on a computer and contains 7,305 words, as counted by the Microsoft Word 2010 word-processing program used to generate Petitioner’s Petition for Review. Dated: September 18, 2013 ALESHIRE & WYNDER, LLP ERIC L. DUNN SUNNYK. SOLTANI PAM K. LEE ADRIANAP. 2801006/0003/150375.07 EXHIBIT A CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT _ DIVISION TWO ILmeat a { 3} I | AUG 9 2013 ehfi 03 Th tf is i | } po COURTGEAPPEAL FOURTH DISTRICT 4 tue CITY OF PERRIS, Plaintiff and Respondent, E053395 Vv. (Super.Ct.No. RIC524291) RICHARD C. STAMPERetal., OPINION Defendants and Appellants. APPEALfrom the Superior Court of Riverside County. Dallas Holmes, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuanttoart. VI, § 6 of the Cal. Const.) Reversed with directions. Allen Matkins Leck Gamble Mallory & Natsis and K. Erik Friess for Defendants and Appellants. Aleshire & Wynder, Eric L. Dunn, Sanaz K. Soltani, and Pam K.Leefor Plaintiff and Respondent. I. INTRODUCTION Defendants and appellants, Richard C. Stamper, Donald D. Robinson, and Donald Dean Robinson, LLC (the owners), own a 9.1-acre parcel ofland in Perris, California. ] The parcel (the Stamper Property) is vacant land zoned for light industrial use. In 2005, plaintiff and respondent, City ofPerris (the City), designated certain truck routes in an amendedcirculation elementofits general plan. To establish one suchtruck route, a section of Indian Avenue would needto be realigned and, as a result, pass through the Stamper Property. As shownin thecirculation plan, Indian Avenue would be 94 feet in width comprising about 19 percent of the 9.2-acre parcel. In 2009,the City filed the underlying eminent domain action to acquire the portion of the Stamper Property needed for the Indian Avenuetruck route project (the take), The City appraised the take as undevelopableagricultural land. The City based this appraisal on the theory that it would not approve of any developmentplan for the Stamper Property unless the owners gave—or dedicated—thetake to the City. Because ofthis dedication requirement, the City argued, the take would either be given to the City as a condition of development or remain vacant and usable only for growing crops, and as such should be valued on that basis. The owners arguedthat the dedication requirement should not be considered in determining the fair market value ofthe property becauseit was not reasonably probable the City would impose the dedication requirementand,if imposed,it would be unconstitutional. Because the dedication requirement should not be considered, the owners argued, the take should be valuedatits highest and best use as light industrial property, the present zoning classification. - The court granted the City’s request to bifurcate thetrial. In the first phase, the court would decide the “legal issues”: in the second phase, a jury would determine valuation. At the conclusionofthe first phase, the court determined thatthe dedication requirement was reasonably probable and wasconstitutional. After these issues were decided in the City’s favor, the owners stipulated to the City’s appraisal, and the court entered judgment based thereon. Onappeal, the owners challenge the court’s substantive rulingsin the first phase ofthe trial as well as the decision to have the court, not the jury, determine issues concerning the dedication requirement. They also challenge certain evidentiary rulings and the court’s ruling allowing the City to withdraw a statutorily required deposit. Weholdthat the issues surrounding the dedication requirementare essential to the determination of “just compensation”and therefore must be “ascertained by ajury.” (See Cal. Const., art. I, § 19(a).) Accordingly, we will reverse the judgment. Wl. BACKGROUND The Stamper Property is a 9.1-acre roughly square-shaped parcel ofland located on the southwest cornerofPerry Street and Barrett Avenuein the City ofPerris. Perry Street and Barrett Avenue are both 60 feet wide and unpaved. Perry Street runseast- west, parallel] to, and north of the Ramona Expressway, a major thoroughfare. Barrett Avenue runs north-south and intersects the Ramona Expresswaysouth of the Stamper Property. The Stamper Property is vacantand is used for agricultural purposes, butis zoned for light industrial uses. No proposal to develop the Stamper Property was pendingatthe timeoftrial.! Before 1999, the City planned anotherstreet, Indian Avenue,to run in a straight’ line, north and south ofand intersecting the Ramona Expressway. The Stamper Property lies some distanceto the east ofthis pre-1999 alignment of Indian Avenue. In the mid or late 1990’s, Lowe’s, a home improvementretail business, proposed to build a distribution centerin the City. As part ofits developmentapplication, Lowe’s asked the City to amend the circulation elementofits general plan to realign Indian Avenue south ofthe Ramona Expresswayin order to make roomforits distribution center. The City agreed, and in November 1999 it realigned a half-mile segment of Indian Avenue, south of the Ramona Expressway,as part of an amendedcirculation elementof the City’s general plan. From a point south of the Ramona Expressway, Indian Avenue wasto curve northeasterly and meet the Ramona Expressway where Barrett Avenue meets the Ramona Expressway from the north. Asrealigned in 1999, Indian Avenue would notintersect the Stamper Property. In June 2005, the City adopted a newcirculation clementto its general plan. The new circulation element states: “The efficient movementof goodsin and through the City of Perris is vital to the City and the Inland Empire’s economy and improvestraveler safety. The ability of the County to compete domestically and internationally on an ' According to the City, a prior ownerofthe Stamper Property dedicated the land for Perry Street and Barrett Avenue. economic basis requires an efficient and cost-effective methodfor distributing and receiving products.” To address these concerns,the circulation element discusses the need to designate truck routes in the northern areaofthe City: “As healthy industrial growth is expected within the City, related truck traffic will continue to increase particularly in northern Perris. In addition, similar growth just north ofPerris in Moreno Valley will exacerbate traffic conditions . . . . The designated truck routes are intended to indicate arterial streets, which may be usedfor truck movementin excess of the weight designated in the City Ordinance for movementthroughthe City.” Aspart of the June 2005 circulation element, the City designated Indian Avenue as a four-lane “secondary arterial truck route” and realigned Indian Avenue north ofthe Ramona Expressway. In its new configuration, Indian Avenue proceeds northward from the Ramona Expressway, curves northwesterly through the Stamper Property, and eventually connects to the preexisting northern segment of Indian Avenue. Indian Avenuewill cut a curving, roughly diagonal 94-foot-wide swath through the Stamper Property, dividing it into two irregularly-shaped parcels, approximately 5.5 acres and 2.0 acres in size, one on either side of Indian Avenue. The size of the 94-foot-wide swath through the Stamper Property (the take) is 1.66 acres.” 2 To implementthe circulation element, the City established the North Perris Road and Bridge Benefit District(NPRBBD) in 2008. The Stamper Property is within the boundary of the NPRBBD. The purpose of the NPRBBDis to provide a mechanism for financing numerousroad and bridge improvementsindicated in the circulation clement, including the realigned and expanded Indian Avenue. The costs of improvements financed by the NPRBBDwill ultimately be paid by fees assessed against property owners upon the subdivision or developmentoftheir properties. The amount of [footnote continued on next page] In October 2008, the City offered to buy the take from the ownersfor $54,400, and increasedits offer to $54,800 in January 2009. The City’s offers valued the take asif it were limited to agricultural!use, although the StamperProperty (including the take) was zoned forlight industrial use. According to the City, the take should not have been appraised as developable industrial property because the City could and would require the owners to dedicate the take to the City as a condition of any industria] development. In March 2009, the City adopted a resolution of necessity authorizing acquisition of the take through eminent domain. The express purpose ofthe resolution was “to carry out and make effective the principal purpose ofthe Project,” which is defined as “Indian Avenueright-of-way improvements.” The City’s eminent domain action followed. Thereafter, the City deposited $54,800 with the court as “the probable amountof the compensation”payable to the ownersfor the take. (Code Civ. Proc., § 1255.010.)3 The owners moved to increase the deposit on the ground the City’s claimed dedication requirement was unconstitutional and the take should be valued as industrial property,its [footnote continuedfrom previous page] each owner’s fee is a function of the size of the property or numberofdwelling units and the nature of the development. Accordingto one report submitted by the City, ‘[t]he payment of the NPRBBDfeeis not intended to relieve the subdivider, developer or an applicantfor a building permit from the requirements imposed under otherprovisions or Ordinancesofthe City of Perris to dedicate and improve roads as a condition of approval of a tentative map or building permit.” 3 All further statutory references are to the Code of Civil Procedure unless otherwise indicated. current zoningclassification andits highest and best use. The court granted the motion and ordered the City to increaseits deposit to $511,602. The City complied. Thereafter, the matter proceeded to thetrial on compensation. As indicated, the court bifurcated the trial and ruled on certain issues it deemed “egal issue(s] affecting the determination of compensation”before a jury was to determine the owners’ compensation. (§ 1260.040.) Before wediscussthetrial court’s rulings and analyze the parties’ claims, we review thelegal principles governing compensation in eminent domain and the extant case law concerningthe effect of dedication requirements on the value of property taken in eminent domain. I. LEGAL PRINCIPLES/OVERVIEW A. Just Compensation and Permissible Dedication Requirements Private property shall not be taken for public use without Just compensation. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 19.) “Such compensation means the full and perfect equivalent in money ofthe property taken. The owneris to be put in as goodposition pecuniarily as he would have occupiedif his property had not been taken.” (United States v. Miller (1943) 317 U.S. 369, 373, fns. omitted; see also M1. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653.) Compensation is to be based on the loss to the owner, not the benefit received by the condemner. (City ofLos Angeles v. Decker (1977) 18 Cal.3d 860, 866.) Under California’s eminent domain law, the measure of compensationis the fair market value of the property. (§ 1263.310; Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, 698.) Fair market valueis statutorily defined in section 1263.320, subdivision (a), as “the highest price on the date of valuation that would be agreedto bya seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledgeofall the uses and purposes for whichthe property is reasonably adaptable and available.” Governments may,of course, restrict the “uses and purposes”of private property withouttriggering the requirement of paying compensation. “(T]he authority of state and local governments to engage in land use planning has been sustained against constitutional challenge as long agoas [the] decision in Village ofEuclid v. Ambler Realty Co. [(1926)] 272 U.S. 365 .... ‘Government hardly could go on if to someextent _ values incident to property could not be diminished without paying for every such change in the general law.’ [Citation.]” (Dolan v. City of Tigard (1994) 512 U.S. 374, 384-385 (Dolan), see also Ayres v. City Council ofLos Angeles (1949) 34 Cal.2d 31, 37-43 [dedication conditions are reasonable restrictions that do not constitute a taking].) Property whichuse is known to be restricted will generally be valued less than property not so restricted. (See | Matteoni & Veil, Condemnation Practice in Cal. (Cont.Ed.Bar 3d ed. 2011) § 4.12, pp. 123-128.) As such, zoning restrictions on the use of property can affect the availability of the property for some purposes andthereby depressits fair market value. (See Long Beach City H.S. Dist. v. Stewart (1947) 30 Cal.2d 763, 766; People ex rel. Dept. Pub, Wks. v. Arthofer (1966) 245 Cal.App.2d 454, 467 [Fourth Dist., Div. Two].) Similarly, the condemner’s use of dedication requirements as conditions of developmentwill likewise restrict the use of the property and affect the property’s fair market value. (See City ofFresno v. Cloud (1 972) 26 Cal.App.3d 113, 123 (Fresno); City ofPorterville v. Young (1987) 195 Cal.App.3d 1260, 1269 (Porterville); City ofHollister v. McCullough (1994) 26 Cal.App.4th 289, 296 (Hollister).) B. The Fresno/Porterville Doctrine In Fresno, the City of Fresno condemned 40-footstrips ofland fronting two 10- acre parcels in order to widen two city streets in accordancewith the city’s master plan. (Fresno, supra, 26 Cal.App.3d at pp. 115-116.) The parcels were zoned forresidential and agricultural uses. (/d. at p. 115.) The city claimed that if development of any property required a zoning change and could generate increased volumesoftraffic, then the city could require the property owners to makestreet dedications necessary to widen the affected streets in accordance with the master plan, as a condition of approving the zoning change andofissuing building permits. (/d. at pp. 115, 117, fn. 5.) The owners waived severance damagesandtrial proceeded on the value of the 40- acre strips. (Fresno, supra, 26 Cal.App.3d at p. 116.) The owners’ appraiser valued the 40-foot strips based on his opinion there was a “reasonable probability” the parcels would be rezoned to more favorable uses in the near future, including multiple-unit residential. ({bid.) The city’s appraiser valued the strips based on their current zoning (residential- agricultural), based on his assumption that the strips could never be used for any purpose given that the city would require their dedication forstreet widening purposesin the event of a more favorable zoning change. (a. at p. 117.) The court did notallow the city to present evidence ofthe dedication requirements. (Fresno, supra, 26 Cal.App.3d at p. 119.) The Court ofAppeal held this waserror, It explained: “[{I]f upon retrial of the valuation issue, the court finds that the strips taken from[the parcels] are a part ofthe very frontage that the landowners would have had to dedicate to the city in order to secure the zoning changes needed to develop the remaining parcels to their highest and best uses, the court must not value the property taken on the basis of those highest and best uses; it must determine instead the value of the frontage strips taken on the basis of the highest and bestuses permitted by the existing zoning, becausethis land could never be used for any other purpose.” (/d.at p. 123.) Fresno wasfollowed in Porterville, supra, 195 Cal.App.3d 1260. The defendant owned five acres abutting ProspectStreet in Porterville. The parcel was zoned for commercial use and planned unit development. (/d.at pp. 1262-1263.) The City of Porterville condemned a 12-foot-wide strip of the parcel to widen ProspectStreet as indicated in thecity’s general plan. (/d. at p. 1263 & fn. 3.) The city argued that, under Fresno,the frontage strip should be valued as agricultural land. (Porterville, supra, at p. 10 1265.) The appellate court agreed. It explained: “Although the parcel was zoned for commercial purposes, it could not be adapted and developed for such purposes withouta dedication of frontage to widenthe east side of Prospect Streetto its ultimate planned width of 42 feet—halfofthe total planned width of 84 feet. The take is the very frontage owner would have had to dedicate to city to secure the building permits or conditional use permit needed to develop theparcelto its highest and best commercial use. Thetrial court should have determined the value ofthe take on the basis of its agricultural use, because it could never be used for any other purpose. To paraphrase [Fresno]: if the take is so valued, andif the remainderofthe parcel is not developed beyondits present agricultural use, ownerwill have been paid exactly what the take was worth;if the remainderofthe parcel is developed for commercial purposes, owner will have beenpaid for the land he would have been required to dedicate to city to obtain the building permits or conditional use permit necessary for the commercial development.” (ld. at p. 1269,fn. omitted.) Fresno and Porterville stand for the proposition that when condemned property would have to be dedicated as a condition of developing the larger parcel of which the condemnedpropertyis a part, the condemned property must be valuedatits current use becauseit could neverbe used for any other purpose. Neither Fresno nor Porterville addressed whether the condemners’ claimedstreet dedication requirements could be constitutionally imposed as conditions of development, however. 1] Contra Costa County Flood Controletc. Dist. v. Lone Tree Investments (1992) 7 Cal.App.4th 930 (Lone Tree), involved the taking of a portion of the defendant’s land for a “major flood control project.” (Jd. at pp. 931-932.) The condemningflood control district argued that any developmentof the defendant’s property would be conditioned on dedication of the take and should therefore be valued based on agricultural use. (Jd. at p. 932.) Relying heavily on Fresno and Porterville, the Court of Appeal agreed: “When there is a reasonable probability that a public agency would require dedication of the take as a condition of development, the take should be valued based on theuse that can be made ofthe property in its undevelopedstate.” (Lone Tree, supra, at p. 937.) Like Fresno and Porterville, Lone Tree did not address whether the claimed dedication requirement for the flood control project could be constitutionally imposed on the owners of the condemnedproperty. Lone Tree was followed by Hollister, supra, 26 Cal.App.4th 289, which, like Fresno and Porterville, involved a city seeking to condemn a portion ofthe defendants’ property for purposesof a street. The condemning city assertedit did not have to pay severance damages because “it probably would have conditioned development of defendants’ property on ‘dedication’ ofthe [take].” (Hollister, supra, at p. 297, fn. omitted.) Citing Lone Tree, the court stated: “Wherethere is a reasonable probability that developmentof the property would have been conditioned on dedication ofthe property taken, compensation to the owner for the harm caused by the taking cannot be based on the property’s developmentpotential.” (//ollister, supra, at p. 297.) 12 Hollister then connected the reasonableprobability test to the requirementthat the proposed dedication withstand constitutional scrutiny: “[P]roof that a conditional dedication is a ‘reasonable probability’ requires a showing not only that plaintiff would probably have imposed the dedication condition if defendants had sought to develop the property, but also that the proposed dedication requirement would have been constitutionally permissible. This is so becauseit is not a ‘reasonable probability’ that a governmental entity would actually succeed in imposing an unconstitutional dedication requirement.” (Hollister, supra, 26 Cal.App.4th at p. 297.) The court continued: “A conditional dedicationis invalid if it deprives the ownerofthe property ofconstitutional protections. [Citation.] A requirementof a conditional dedication of property for street purposes doesnot offend the Constitutionif ‘it is a condition reasonably related to increasedtraffic and other needs ofthe proposed subdivision... {Citation.] However, ‘[w]here the conditions imposed are not reasonablyrelated to the landowner’s proposed use, but are imposedby a public entity to shift the burden ofproviding the cost of a public benefit to one not responsible, or only remotely or speculatively benefiting from it, there is an unreasonable exercise of police power.’ [Citation.]” (Jd. at p. 298; see also Rohn v. City of Visalia (1989) 214 Cal.App.3d 1463, 1470, 1475-1476 [street dedication requirement imposedas condition of approving development oflarger parcel held invalid because it was not reasonably related to the traffic and other impacts the larger parcel would have upon its development}.) 13 C. The Essential Nexus and Rough Proportionality Tests In 1987, before the decisions in Lone Tree, Hollister, and Rohn were issued, the United States Supreme Court held that a development condition violates the Fifth Amendmenttakings clause unlessthere is an “essential nexus” between the nature ofthe condition and the governmentalinterest to be servedby its imposition. (Nollan v. California Coastal Com’n (1987) 483 U.S. 825, 839 [easement allowing public access across private beach to connect two public beaches lacked essential nexusto stated governmentinterest in reducing blockageofpublic view of ocean].) Then in 1994, the high court addressed the issue left open in Nollan: “Ifwe find that a nexus exists, we mustthen decidethe required degree of connection between the exactions and the projected impact ofthe proposed development.” (Dolan, supra, 512 U.S. at p. 386.) The property owner in Dolan appliedto the city for a permit to replace an existing building that housed her plumbing andelectrical supply store. She also sought to expand her store parking lot. The owner’s application was approved, conditioned upon her dedicating a portion of her property for a public greenway to improve storm drainage and anotherstrip of property, adjacentto the greenway. for a pedestrian and bicycle pathway. (Dolan, supra, 512 U.S. at pp. 379-380.) In approving the application subject to the dedication condition, the city planning commission made generalized findings concerning the relationship between the permit conditions and the project’s impacts. (/d. at pp. 381- 382.) The ownerchallenged the permit conditions on constitutional grounds. (/d. at p. 386.) 14 The Dolan court stated: “In evaluating petitioner’s claim, we mustfirst determine whether the ‘essential nexus’ exists between the ‘legitimate state interest’ and the permit condition exacted by thecity. [Citation.] If we find that a nexus exists, we must then decide the required degree of connection betweenthe exactions andthe projected impact of the proposed development.” (Dolan, supra, 512 U.S.at p. 386.) For purposes ofthe takings clause, the court explained there must be “rough proportionality” between the nature and extent of the required exaction and the impacts of the proposed development. (/d. at p. 391.) Thecity has the burden of establishing this rough proportionality. (/d. at p. 391 & fn. 8.) To meet this burden, “[nJo precise mathematical calculationis required, but the city must make somesort ofindividualized determination that the required dedication is related both in nature and extentto the impactof the proposed development.” (/d. at p. 391, fn. omitted.)4 The Dolan court found there was a nexus between the city’s permit conditions and the governmentalinterests to be served by the conditions. (Dolan, supra, 512 U.S. at pp. 387-388.) Still, the city made an insufficient showingofthe extentor degree of the connection between the city’s exactions and the impacts caused by the proposed development. (/d. at pp. 394-395.) Regarding the greenway dedication, the court noted 4 In Ehrlich v. City ofCulver City (1996) 12 Cal.4th 854, the California Supreme Court applied the Dolan “rough proportionality” analysis to development permits that exacted a fee as a condition of approval. Thecourt stated that there must be “‘somesort of individualized determination that the required dedication is related both in nature and extent to the impact ofthe proposed development.’ [Citation.]” (EArlich v. City of Culver City, supra, at p. 880.) 15 the “city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control.” (/d. at p. 393.) Regarding the pedestrian/bicycle pathway, the court acknowledgedthat “[d]edications for streets, sidewalks, and other public ways are generally reasonable exactions to avoid excessive congestion from a proposed property use,” but concluded, “the cily has not metits burden of demonstrating that the additional number of vehicle and bicycle trips generated by petitioner's developmentreasonably relate to the city’s requirement for a dedication ofthe pedestrian/bicycle pathway easement. The city simply found that the creation of the pathway ‘could offset some of the traffic demand. . . and lessen the increasein traffic congestion.’” (/d. at p. 395, fn. omitted.) This “‘is a far cry from a finding that the bicycle pathway system will, or is likely to, offset some ofthe traffic demand.’” (/bid.)> D. The Application ofDolan in State Route 4 In State Route 4 Bypass Authority v. Superior Court (2007) 153 Cal.App.4th 1546 (State Route 4), a condemnationaction, the court applied Dolan and concluded that two claimed dedication requirementssatisfied its rough proportionality test. (State Route 4, supra, at pp. 1559-1561.) A joint powers agency consisting of Contra Costa County and the Cities of Antioch and Brentwood (the Bypass Authority) sought to construct a new 5 In Kooniz v. St. Johns River Water Mgmt. Dist. (2013) U.S. __ _ [133 S.Ct. 2586, 186 L.d.2d 697] the high court recently held that the rough proportionality test of. Dolan, also knownas the “unconstitutional conditions doctrine,” must be satisfied when _the governmentdenies a land use permit application based on a development condition the owneris unwilling to agree to, and must also be satisfied whenthe condition is for money or offsite mitigation. as opposed to a property dedication. Koontz has no bearing on the issues raised on this appeal. 16 roadway,State Route 4, linking a major interchange in Antioch to Marsh Creek Road in Brentwood (the Bypass Project). (/d. at p. 1550.) Two eminent domain actions were filed, one involving property owned by Morimoto and anotherinvolving property owned by Nunn. Regarding the Morimoto property, the Bypass Authority sought to condemn a 250- foot-wide strip of land totaling 16.94 acres. The appraiser for the Bypass Authority determinedthat if the Morimotos were to develop their property the agency would require them to dedicate a 110-foot-wide strip of land totaling 4.69 acres. Based on Porterville, the Bypass Authority claimed the 110-foot-wide strip should be valued based on its existing agricultural use, rather than the higher, developable commercialvalue of the remaining 12.25 acres. (State Route 4, supra, 153 Cal.App.4th at p. 1551.) The Bypass Authority also sought to condemn a 250-foot-wide strip of the Nunn property, totaling 3.31 acres, and claimed that if the Nunns soughtto developtheir property the City of Antioch would require them to dedicate a 110-footstrip totaling 1.49 acres. The Bypass Authority accordingly sought to acquire the 1.49 acres based onits existing agricultural use and value, and value the remaining 1.82 acres based on commercial developmentpotential. (State Route 4, supra, 153 Cal.App.4th at pp. 1551- 1552.) The cases were consolidated and the parties stipulated to a bifurcatedtrial. (State Route 4, supra, 153 Cal-App.4th at pp. 1549, 1552.) The parties agreed that during an initial phase the court would determine whetherthere was a reasonableprobability the 17 city would require the 250-foot strip dedications for State Route 4 in the event the owners developed their properties, and whether the required dedications would be constitutionally permissible. (/d. at p. 1552.) Duringthe bench phase, the owners presented no witnesses. (State Route 4, Supra, 153 Cal.App.4th at p. 1552.) Amongother witnesses, the Bypass Authority presented the testimony ofa traffic engineer and traffic planner, Gerald Walters. Walters testified concerning “individualized nexus studies of the Nunn and Morimotoproperties, comparing the traffic impacts attributable to the developments proposed for[the] properties with the cost to each property of meeting the dedication requirement and paying [developmentfees].” (/d. at p. 1553, fn. omitted.) Walters opined the Morimoto and Nunn properties wouldrealize “other, less quantifiable benefits due to their proximity to the Bypass Project,” because as developed they were expected to include retail componentsandtheir proximity to the Bypass Project would make them more visible and convenientto potential customers. (/d. at p. 1554.) At the conclusion of the bench phase,the trial court ruled in favor of the owners and found the dedication requirements were not constitutionally permissible under Dolan. (State Route 4, supra, 153 Cal.App.4th at p. 1554.) The appellate court granted the Bypass Authority’s writ petition and reversed. (/d. at pp. 1549-1550, 1568.) In reversing the trial court, the court noted: “The trial court found that there was no dispute that the City of Antioch would require dedication ofa full 110-foot-widestrip straddling the centerline of the bypass alignmentas a condition for the developmentof both the Nunn 18 and Morimotoproperties. Thus,the first prong of the Porterville test was met: It was reasonably probable that if the owners had sought approval to develop their properties, the city would have conditioned such approval on the specified dedication. The salient disputed issue... was whether applying such a condition to the hypothetical developmentof the [Nunn and Morimoto] properties would have been constitutionally permissible” under Dolan. (State Route 4, supra,at p. 1559.) The appellate court disagreed with the trial court and concludedthat the 110-foot dedication requirements met the rough proportionality test of Dolan. (State Route 4, supra, at pp. 1559-1561.) IV. THE BIFURCATED BENCHTRIAL A. The Bifurcation Motion Beforetrial, the City moved to bifurcate the proceeding and have the court determine “the legal issue ofthe validity of [the] dedication requirement.” Although the City acknowledgedthatthe dedication requirementis “related to” and “affect[s] the determination of compensation,”it argued that the issue “must be decided by the court before a valuation trial goes before the jury.” In particular, the City sought to have the trial court determine during the first phase whether there was a reasonable probability that the City would require the dedication ofthe take as a condition of development and, if so, whether this required dedication “passe[d] constitutional muster.” The City proposedthat, based on these determinations, there would be a second phaseofthetrial wherethe jury would determine the amount of compensation. The City relied, in part, on State Route 4. The owners opposed the motion on the groundthat factual questions concerning the reasonable probability of the dedication and the constitutional issues must betried by a jury. The ownersrelied primarily on the California Supreme Court’s decision in Metropolitan Water Dist. ofSo. California v. Campus Crusadefor Christ, Inc. (2007) 41 Cal.4th 954 (Campus Crusade), whichheld that in an eminent domain proceeding, the determination of whether there is a reasonable probability of a zoning changeis ordinarily a question of fact for the jury. (/d. at p. 967.) In addressingthe City’s motion, the following discussion occurred: “THE COURT: ... This is a close call. And I appreciate the arguments on both sides. They are well made. J think ’m going to go ahead and bifurcate this trial as was donein the [State Route 4] case. ... “We'll have two phases. First, we’!l have the legal determination of both the constitutionality and the reasonable probability of the dedication. And then second we'll have valuation to take before the jury. “[OWNERS’ ATTORNEY]: Your Honor, is the Court then ruling that reasonable probability of the dedication is not an issue forthe jury? “THE COURT: Yes “[TOWNERS’ ATTORNEY]: The Campus Crusade issue? “THE COURT: Yes, I’m tentatively ruling that... . I think [the City’s attorney] has the better of the argument onthat point.... [GJ]... [9]... 1 think... the best thing 20 to do would betostart the bench phaseofthe bifurcation ofthe trial on the dedication requirement....” (Italics added.) B. The BenchTrial Testimony 1. The City’s Witnesses City manager, Richard Belmudez, and city engineer, Habib Motlagh,testified for the City. Belmudez testified aboutthe City’s adoption ofthe circulation elementto the general plan in2005 and the resolution of necessity authorizing this eminent domain action. In 2005, the City felt the area was underdeveloped and the main reason seemed to be lack ofinfrastructure; the circulation element wastherefore amended to accommodate the land use plan forthatarea. The circulation element, hesaid, is supported by studies of traffic conditions. The traffic studies are used to ensure that the plannedroadwill be sufficient to accommodate the projected volumeoftraffic. The redesign of Indian Avenue as a secondaryarterial, he explained, was “designed to move large volumesoftraffic” through the City and “siphonit out to the arterial freeways [and] expressways.” It would also allow for developmentofproperty in north Perris and “alleviate the traffic that was occurring as a result of recent developments.” Lowe’s requestedthe realignment of Indian Avenue, and it was to be constructed as a condition of approvalfor the Ridge property development. There was no property-by-property, or “micro level,” analysis of the effect on traffic arising from the developmentofthe specific property. Belmudez explained that if it turned out that the amountoftraffic related to the future developmentofthe Stamper 2] Property did not justify the take, the City would be “willing to make other concessions” to the owners when it was developed. He indicated, however, that if there are developmentconcessions with developers, they are normally placed in a development agreement. Nowherein the resolution of necessity is there any indication that the Stamper Property will get a credit on developmentfees if they are paid a lesser amountin condemnation. Nowhere has the City made a written commitmentas to fee reductions. Belmudezfurthertestified that the City’s municipal code requires that property owners whodesire to develop their property must dedicate to the City the portion oftheir property that is designated for streets in the circulation element. The City would require, as a minimum dedication, whateveris shown in the circulation element. Not onlyis this requirement in the City’s municipal code, he added, but the City has a practice of requiring property ownersto dedicate such property. In particular, he said the owners in this case would be required to dedicate the take for the construction of Indian Avenuein accordance with the circulation element. Motlaghtestified that the adoptionofthe circulation elementin 2005 was one of the steps to encourage developmentin the area. The alignment of Indian Avenueis a critical elementasit relates to the City of Moreno Valley’s circulation plan. If the owners wanted to develop the Stamper Property, the City would require them to dedicate the area needed for Indian Avenue and to pay fortheir share of the cost of constructing the street. According to Motlagh, the construction of Indian Avenue would be a “great 22 benefit” to the owners ofthe adjacent property. The newstreet would bringtraffic to the properties and provide access to other major corridors. He indicatedthat the total acreage neededforthe construction of Indian Avenueig 40 acres, including 1.6 acres from the Stamper Property. The 1.6 acres is less than 4 percentof the 40 acres needed. Based on thetraffic studies, the maximum capacity for traffic trips on Indian Avenueis projected to be 18,000 cars. Anywherefrom 1,800 cars per day up to a maximumof3,500 cars per day could potentially be generated as a result of developing the Stamper Property. Thus, althoughthe 1.6 acres taken from the Stamper Property is only 3.6 percent ofthe 40 acres needed for the project, the traffic potentially generated from the developmentofthe Stamper Property would be between 8 percent and 14 percentofthetotal. Hefurthertestified that after Indian Avenueis improved, the owners ofthe property wouldstill be required, upon development, to provide access on the west side of the property and access from Perry Street, Barrett Avenue, or both. He reiterated the testimony of Belmudezthatif a developer comesin andit turns out that the request to dedicate is not proportionalto thetraffic generated by the development, the City will work out other concessions. On cross-examination, Motlaghtestified that the half-widths of Perry Street and Barrett Avenue are currently 30 feet. In order to get these streets to their “ultimate width|sJ” under the City’s generalplan, the City would need an additional nine feet along each street from the Stamper Property. According to Motlagh, the decision to realign 23 Indian Avenueacross the Stamper Property was made without regard to whether the Stamper Property is ever developed. Motlagh furthertestified there were nodocuments reflecting any particularized analysis of how muchtraffic might be generated by the developmentof the Stamper Property. Nor were there any specific studies or analyses conducted regarding the relationship between the dedication requirementfor the take and any future developmentofthe Stamper Property. To the best ofhis knowledge, there are no writings that the owners would get any future credit for any amount they are undercompensated. 2. The Owners’ Witnesses Tom Merrell and Michael Waldrontestified for the owners. Merrelltestified on issues concerning the nature ofthe Indian Avenueproject, the probability the City would require the dedication ofthe take upon developmentofthe StamperProperty, the connection between developmentofthe StamperProperty and the Indian Avenue project, and the degree to whichthe dedication of the take was proportionalto the impacts of developing the Stamper Property. Merrell explained that the primary source ofthe truck traffic necessitating the realignment of Indian Avenueis the “very huge warehouse distribution and manufacturing facilities south of Ramona,” amongother places. A claim of dedication mustrelate to the impacts ofthe specific property. Whatis really at issueis the relationship between the impacts of the Stamper Property and the proposed dedication. The City’s dedication requirement against the StamperProperty, he said. was “clearly the product ofthis projectto realign Indian Avenue and construct it at this time.” 24 He addedthat“[t]here’s absolutely no developmenton the Stamper[P]roperty that could possibly trigger a needforit.” According to Merrell, the decision to require dedication as an exaction is a discretionary decision of the City. It is not reasonably probable that the City would impose the dedication requirement for Indian Avenue especially on top ofall the other dedications. The property already has roughly 600 feet ofexistingstreet frontage along Perry Street and Barrett Avenue. The owners would not be expected to object to the “more normal” nine-foot-wide dedication of property fronting these streets. The owners would object to exaction of the property demandedin this case. This is not, he said, a “business as usual kind of exaction.” Merrell further opined that there is no connection between the designation of Indian Avenueas a truck route and any potential developmentof the Stamper Property. Regarding the proportionality of the dedication requirement, Merrell testified that while developing the Stamper Property could be expected to generate an increase intraffic so as to justify the “normal expectation” of having to dedicate the nine feet of frontage road along Perry Street and Barrett Avenue, no “developmentonthis little nine-acre parcel could possibly . . . generate enoughtraffic to require”the dedication of the Indian Avenue take. Indian Avenueis a secondaryarterial and is designed to handle 20,000 to 25,000 trips per day. Barrett Avenue and Perry Street are designed to handle half that traffic and, _ based ongeneral rules of thumb,it appears that the Stamper Property would generate a tenth ofthe traffic that Indian Avenueis designed to carry. 25 Waldron was the owners’ valuation expert. Hetestified that in the marketplace, buyers andsellers consider dedications in the purchase and sale of the property. The subject property is 9.1 gross acres. The zoning is light industrial. Along the east side is Barrett Avenue, which is a 60-foot street, and along the otherside is Perry Street, which is a 60-foot street. Along both streets a half-width has been dedicated. Additional footage will be required for dedication from the Stamper Property which would be nine feet of the half-width, bringing both Barrett Avenue and Perry Street to 39 feet, which would then bring the ultimate width to 78 feet based on the land use plan. If the City were to take the dedications shown for Barrett Avenue and Perry Street, each having a length of around 660 feet, the City would be taking approximately 11.3 percent of that gross area. If the City took the existing dedications along Barrett Avenue and Perry Street, and the additional dedication of the proposed realignment of Indian Avenue, it would be taking one-third of the property in terms ofits dedication; this is extraordinarily onerous. His understanding of exactions and dedications in terms of what is reasonably probable,is that they must bear somerelationship to the proposed developmenton a local site-specific basis and not a regional basis. The dedication requirement of Indian Avenue is not reasonably probable. Indian Avenueis designed to create something that would supporttraffic far in excess of what the subject property’s highest and best use would be. 26 C. The Trial Court's Rulings Following the two and one-half day benchtrial, the court issued a statement of decision concludingit was “reasonably probable that the right-of-way dedication across defendants’ property [the 1.66-acre area ofthe take} would be imposed as an exaction [or dedication] when defendants bring in a development proposalfortheir [property],” and that the dedication requirement wasconstitutional. The court also ruled that section 1263.330 did not prohibit the jury from considering the dedication requirementin determiningthe value ofthe take. The court accordingly ruled that any valuation evidence submitted during the valuation phase before a jury had to be “based on the existing use of the subject property in its undeveloped state” andthat “agricultural sales prices” rather than industrial-value prices, were “the proper basis for valuation of the [take].” As noted, the ownersstipulated to the entry ofjudgmentbased on the City’s appraised agricultural value ofthe take at $44,000, and preserved theirright to appeal in lieu of proceedingto the jury trial on the agricultural value of the take and their claim for severance damages, The court entered judgment condemning the take and orderingtitle to pass to the City upon its payment of the $44,000 sum. V. ANALYSIS A. The Right to a Jury Trial on Factual Issues Bearing on Compensation The state Constitution provides that “just compensation” in an eminent domain action is be “ascertained by a jury unless waived.” (Cal. Const., art. I, § 19(a); Peoplev. 27 Ricciardi (1943) 23 Cal.2d 390, 402 [issues of fact in condemnation proceedingsare to betried to the court “except [those] relating to compensation”].) Just compensation is defined as the fair market value of the property. (§ 1263.310.) The fair market value is the highestprice a willing seller and a willing buyer would agree upon,“each dealing with the other with full knowledgeofall the uses and purposes for which the property is reasonably adaptable and available.” (§ 1263.320.) In determining just compensation, “‘[t]he jury is entitled to and should consider those factors which a buyer would take into consideration in arriving at a fair market value, were [the buyer] contemplating a purchase of the property.’ [Citation.]” (Campus Crusade, supra, 41 Cal.4th at p. 972.) Because “those factors” include the reasonable probability the property will undergo a zoning or other change in use, whetherthere is a reasonable probability the property will undergo a changeinuseis ordinarily a question offact for the jury. (/d. at p. 967, citing Redevelopment Agency v. Contra Costa Theatre, Inc. (1982) 135 Cal.App.3d 73, 84 & People ex rel. Dept. Pub. Wks. v. Arthofer, supra, 245 Cal.App.2d at p. 467; see also City ofLos Angeles v. Decker, supra, 18 Cal.3d atp. 872 [“the purported need for airport parking and the suitability of defendant’s property for that purpose were critical to the issue of valuation”’].) Relying primarily on Campus Crusade, the owners claim they had a right to a jury trial on certain factual issues bearing on the fair market value ofthe take, and that thetrial court usurped the jury’s function in ruling on these questions. The questions include whetherit is reasonably probable the City would require the take to be dedicated as a 28 condition of developing the Stamper Property, and whether the extent ofthe take is roughly proportionate to the Stamper Property’s impacts on traffic in the event the Stamper Property is developed for light industrial uses. We agree the owners had right to a jury trial on these questions. In Campus Crusade, the Metropolitan Water District of Southern California (MWD)sought to condemn property owned by Campus Crusade for Christ, Inc. to construct a water pipeline. (Campus Crusade, supra, 41 Cal.4th at p. 961.) The property was zoned low-density residential to resource conservation, and allowed only low-density residential developments. (/d. at p. 966.) Before trial, the MWD movedto preclude the ownerfrom presenting evidence to the jury that it was reasonably probable the property would be upzoned in the near future to allow for otheruses, including a comprehensive developmentfor residential, commercial, industrial, and recreational uses. (/d. at pp. 966-967.) Thetrial court granted the motion and found, following a pretrial hearing outside the presence of the jury, that it was not reasonably probable the proffered zoning change would occur “in the reasonably near future.” (/d. at p. 967.) Asindicated by the Supreme Court: “[Thetrial court] agreed with MWDthat the question whether a reasonable probability of rezoning existed in the near future was for the court to decide, and [the court] determined, based on the evidence presented by both sides at the pretrial hearing, that ‘it is not reasonably probable that the subject property would be rezonedin the reasonably near future.’ As a result, [the trial court] prohibited Campus Crusade’s appraisers ‘from valuing the remainder as anything other than 29 Resource Conservation.’” (Campus Crusade, supra, 41 Cal.4th at p. 967.) The Supreme Court concluded: “Unfortunately,the trial court thereby usurped the role of the jury in valuing the property.” (/bid.) The Supreme Court explained: “‘Where due to zoningrestrictions the condemned property is not presently available for use to whichit is otherwise geographically and economically adaptable, the condemneeis entitled to show a reasonable probability of a zoning change in the near future andthusto establish such use as the highest and best use of the property.’ [Citation.] The jury’s role in this assessmentis settled. “(Thhe determination as to whetherornotthere is a reasonable probability of a [use] changeis ordinarily a question of fact for the jury.”” [Citations.]” (Campus Crusade, supra, 41 Cal.4th at p. 967; City ofSan Diego v. Rancho Penasquitos Partnership (2003) 105 Cal.App.4th 1013, 1041 (Rancho Penasquitos) {“it was a question of fact for the jury... whetheror not the other upzonings wouldhave occurred even withoutthe SR-56 project”].) Just as the question whetherthere is a reasonable probability a property will undergo a zoning or other change in permitted use in the near future is a question of fact bearing on the valueofthe property, the question whetherthere is a reasonable probability a planning authority will require a property to be dedicated as a development condition is a question of fact a buyer andseller will logically take into accountin determining the fair market value ofthe property to be dedicated. (See Hollister, supra, 26 Cal.App.4th at p. 297 [“Wherethere is a reasonable probability that development of 30 the property would have been conditioned on dedication of the property taken, compensation to the ownerfor the harm caused by the taking cannot be based on the property’s developmentpotential.”].) Thus, whether there is a reasonable probability a planning authority would require a take to be dedicated as a developmentcondition is ordinarily a question offact for a jury to determine and consider in determining the fair market value of the take. (Cal. Const., art. I, § 19(a); see generally City ofMonterey v. Del Monte Dunes (1999) 526 U.S. 687, 721-722 [whether owner has been deprived ofall economically viable use of his property is predominantly a question of fact for the jury to determine].) As a general matter, the reasonable probability that a planning authority will attempt to impose a dedication condition is not an “evidentiary or other legal issue affecting the determination of compensation”for the court to determine before a jury determinesthe fair market value ofthe take. (§ 1260.040.) In the benchtrial, the City claimed it was reasonably probable—infact it was a certainty—that it would require the entire 1.66-acre area of the take to be dedicated as a condition of developing the Stamper Property. The City relied on the June 2005 circulation elementofits general plan, its municipal code, its policies and practices, and the testimony of Belmudez,its city manager, that the City has a practice of requiring the dedication ofall properties designated for streets in its circulation element as development conditions. Based on this evidence, which the owners did not dispute, the 3] trial court found there was a reasonable probability the City would require the take to be dedicated as a Stamper Property development condition. On remand,a jury can determine whetherthere is a reasonable probability the City would require the take to be dedicated as a Stamper Property developmentcondition, unless the court finds the evidenceis insufficient to allow reasonable jurors to conclude the City would not require dedication ofthe take as a development condition. In Campus Crusade, the court clarified that the sole role ofthe trial court on factual issues affecting compensation is to act as an evidentiary gatekeeper. (Campus Crusade, supra, 41 Cal.4th at p. 968[trial court must initially determine there is sufficient evidenceto allow a jury to find a zoning changeis reasonably probable in the near future before the issue may g0 to the jury].) Thus here, the court mustinitially determine whether reasonable jurors could concludeit is not reasonably probable the City would attempt to imposethe dedication condition as a development condition. Onlyif there is insufficient evidenceto allow the question to go to the jury may the court withhold the question from the jury and determineit as an “evidentiary or other legal issue affecting the determination of compensation.” (§ 1260.040.) In addition, if the court finds there is sufficient evidence to allow the reasonable probability question to go to the jury, it should instruct the jury not to confuse the reasonable probability question with the separate distinct question of whether the dedication condition may be constitutionally imposed, that is, whether the nature and extent ofthe dedication condition is roughly proportionateto the traffic and other impacts 32 the Stamper Property would have if developed as light industrial property. (Dolan, supra, 512 U.S. at p. 391.) The court in Hollister observed that: “[P]roof that a conditional dedication is a ‘reasonable probability’ requires a showingnot only that plaintiff would probably have imposed the dedication condition . . . but also that the proposed dedication requirement would have been constitutionally permissible. This is so becauseit is not a ‘reasonable probability’ that a governmentalentity would actually succeed in imposing an unconstitutional dedication requirement.” (Hollister, supra, 26 Cal.App.4th at p. 297.) Weagree that a governmentalentity wil! not “actually succeed”in imposing a constitutionally impermissible dedication condition. But whetherthereis a reasonable probability a planning authority will assert or attemptto impose a dedication conditionis a separate and initial question of fact that must be determined before the jury determines whether the condition may be constitutionally imposed. If it is not reasonably probable a planning authority will assert or seek to impose a dedication condition in the first instance, there is no need to determine whetherit could be constitutionally imposed. Whenthe constitutionality of a dedication conditionis challenged, asit is here, whether and to whatextentit can be constitutionally imposed involves additional factual questionsfor a jury to determine. Asdiscussed, a dedication condition cannot be constitutionally imposed unless it is roughly proportionate in both nature and extent to the impactsof the developed property. (Dolan, supra, 512 U.S. at p. 391.) Determining the nature and extent of a dedication condition and their relationship or proportionality to 33 the nature andextent ofthe traffic and other impacts of a property development are factual determinations. During the benchtrial, the City claimed the entire 1.66-acre area ofthe take, or the 94-foot-wide swath to be taken roughly from the middle of the Stamper Property, was roughly proportionate to the traffic impacts the Stamper Property was reasonably expected to generate if and whenit is developed for light industrial uses. The city engineer estimated the Stamper Property as developed would generate between 8 and 14 percent ofthe 18,000 daily vehicle-trip capacity of Indian Avenue, but admitted no studies had been conducted to support this claim. The owners claimedthetraffic impact figure wascloser to 10 percentof Indian Avenue’s capacity, but they also claimed the StamperProperty had no need for Indian Avenueor a “third street” when developed becauseit already had 1,260 feetofstreet frontage on Barrett Avenue and Perry Street. The owners also claimed the previous 30-foot dedications and the anticipated additional nine-foot dedications for Perry Street and Barrett Avenue were roughly proportionate to the Stamper Property’s anticipated traffic impacts. On remand, a jury must be allowed to determine whether, andif so to what extent, the 1.66-acre area ofthe take, or the 94-foot-wide swath through the Stamper Property,is roughly proportionate to the Stamper Property’s anticipated impacts on area traffic if and when the Stamper Property is developed. Based on the evidence presented during the benchtrial, reasonable jurors could differ on whetherall or any part of the 1.66-acre take could be constitutionally imposed as a dedication condition on development. If on 34 remand the jury determines that part, but notall, of the 1.66-acre area of the take could be constitutionally imposed as a dedication condition, it must value that part of the take based onits current use and the remaining portion on its highest and best use. If the jury determines that no part of the take could be constitutionally imposed as a dedication condition, it must value the entire take based onits highest and best use, which is apparently as industrial property. A similar two-part valuation of condemned property occurred in State Route 4. The Bypass Authority sought to acquire 250-feet-wide strips of land from two properties, but agreed it could constitutionally require the dedication of only 110 of the 250 feet it sought to condemn. (State Route 4, supra, 153 Cal.App.4th at p. 1551.) The Bypass Authority’s appraisals were based on valuing 110 feet at its current use as agricultural land and the remaining portion onits highest and best use for development purposes. (/d. at pp. 1551-1552.) Unlike the parties here, the parties in State Route 4 agreed to allow the trial court to determine whether it was reasonably probable the 110-foot claimed dedication condition could be lawfully imposed. (/d. at p. 1552.) Becausethe trial court erroneously “usurped the role of the jury” in determining factual issues bearing on the value ofthe take without considering whether there was sufficient evidence to allow the questions to go to the jury (Campus Crusade, supra, 4} Cal.4th at p. 967-968; § 1260.040), the judgment must be reversed and the matter 35 remanded fora jury trial on the reasonable probability and roughproportionality questions.® B. Rough Proportionality Cannot be Based on Unenforceable Promises ofFuture Benefits or Development Concessionsto the Property Owner In a condemnation proceeding,the juryortrier of fact “must ‘... once and forall fix the damages,present and prospective, that will accrue reasonably from the construction ofthe improvement’” or condemnation.(County ofSan Diego v. Bressi (1986) 184 Cal.App.3d 112, 123; see also §§ 1263.120-1263.150 [condemnedpropertyin condemnation proceedings is valued upon commencementoftrial or retrial].) That is, the fair market value of the condemned property, together with severance damages andall other reasonably foreseeable damages resulting from the condemnation, must once and for all be fixed in the condemnation proceeding. (Albers v. County ofLos Angeles (1965) 62 Cal.2d 250, 265 [doctrine of estoppel by judgment or deed precludes condemned 6 An authority on California condemnation practice states: “Obviously, the court must decide the constitutional correctness of any alleged dedication requirement.” (1 Matteoni & Veit, Condemnation Practice in Cal., supra, § 9.48, p. 583.) The statementis unsupported by citation to authority and potentially misleading. A court may determine the constitutionality or rough proportionality of a dedication requirement based on undisputed facts or when, as in State Route 4, the parties agree to allow the court to determine the question. (State Route 4, supra, 153 Cal.App.4th at p. 1552.) An appellate court may also be called upon to determinethe constitutional validity or rough proportionality of a dedication requirement based on undisputed facts or substantial evidence. (See id. at p. 1560.) But in an eminent domain proceeding, a property owner has a right to have a jury determine whethera claimed dedication condition is roughly proportionate to the impacts of the developed property because the determination is essentially a factual question bearing on the value ofthe property taken. (Cal. Const., art.1, § 19(a).) 36 property ownerfrom later claiming damages reasonably foreseeable at time of the condemnation judgmentor deed]; see 2 Matteoni & Veit, Condemnation Practice in Cal., supra, § 16.5, pp. 980-981.) Asdiscussed, the constitutionality of a dedication condition depends on whetherit is roughly proportionate in both nature and extentto the impacts ofthe developed property. (Dolan, supra, 512 U.S. at p. 391 [No precise mathematicalcalculation is required, but the city must make somesort ofindividualized determination that the required dedicationis related in both nature and extent to the impact of the proposed development”].) And in eminent domain proceedings, the value ofthe property must be based onits fair market value or highest andbest use unlessit is subject to a constitutionally permissible dedication condition, in which case it must be valued based on its current use. (Hollister, supra, 26 Cal.App.4th at p. 297.) In State Route 4, the court concluded substantial evidence showedthat the 110- foot dedication conditions met the rough proportionality test of Dolan. (State Route 4, supra, 153 Cal.App.4th at pp. 1559-1560.) While recognizing the Dolantest had to be applied, as it does here,“to the purely hypothetical circumstanceofa possible future developmentapplication,”the court noted the “responsible officials” made “individualized determinations” of the Nunn and Morimoto properties’ potential impacts on traffic, and on the basis of those determinations reasonably concludedthat the 110- foot dedication conditions were not excessively burdensome or disproportionate in relation to the Nunn and Morimoto properties’ potential traffic impacts. (State Route 4, 37 supra, 153 Cal-App.4th at pp. 1559-1560.) The court reasonedthatthe evidence showed “the responsible officials were confident that the economic burden of complying with the dedication requirement was modestin relation to the cost of accommodatingthe likely traffic impact ofany‘significant development’ to whichit might apply.” (/d. at p. 1560.) The court also pointed out“there was no evidence that the Bypass Authority or the City of Antioch,if faced with a proposed developmentthat would generate only an insubstantial amountof additionaltraffic, would haveinsisted on imposing the dedication policy without negotiation, modification, or offset.” (Ibid., italics added.) In concludingthat the 1.66-acre area of the take was roughly proportionate to the Stamper Property’s potentialtraffic impacts, the trial court reasonedthat: “[A|s far as we cantell, the dedication . . . is roughly proportionalto the impacts of future development of the [Stamper P]roperty. It is too early for the sort of individualized determination that the court could make in [Dolan], but the exaction is not too excessive to meet the legal standards for hypothetical developments under [State Route 4]. If it turns out that the developmentproject the defendants actually submit generatesless traffic than the 2005 Circulation Element and the Municipal Code contemplate, the City can negotiate concessions with a development agreementor otherwise to assure that what appears today to be at least rough proportionality is maintained through buildoutso that another Dolancase is avoided. On the stand the City Engineer [Motlagh]testified that such negotiation wasCity practice, and no evidence wasoffered to the contrary.” 38 Werespectfully disagree with State Route 4 to the extentit holds that the rough proportionality test may be determined based on a condemning or planning authority’s unenforceable promises of future development concessionsto the property ownerin the eventit turns out the extent of the developed property’s impacts are less than anticipated at the time oftrial in the eminent domain proceeding. Specifically, we do not believe the rough proportionality test may be met based on promisesoffuture “negotiation, modification,or offset.” (State Route 4, supra, 153 Cal.App.4th at p. 1560.) Thoughit is difficult to gauge the nature and extent of a hypothetical development project’s impacts when no specific development proposal has been made (see State Route 4, supra, 153 Cal.App.4th at p. 1559), the impacts must nonetheless be reasonably determined in the condemnation proceeding, and thetrier of fact must determine whether those impacts are roughly proportionate to the hypothetical dedication condition. Deferring the rough proportionality calculation based on nonspecific and unenforceable promises of future development concessionsrisks depriving the ownerofhis right to just compensation for the fair market value of the property taken in the condemnation proceeding. C. Section 1263.330 Does Not Require Evidence ofthe Claimed Dedication Condition to be Excluded in Determining the Fair Market Value ofthe Take Section 1263.330 provides: “The fair market value of the property taken shall not include anyincrease or decreasein the value of the property thatis attributable to any of the following: [{] (a) The project for which the property is taken. [{] (b) The eminent 39 domain proceeding in which the property is taken. [{] (c) Any preliminary actions of the plaintiff relating to the taking of the property.”7 Here, there is no dispute that the project for which the property is taken is Indian Avenue. The owners argue that the dedication ofthe property for the Indian Avenue project would not have been requiredin the absenceofthe project; therefore, the dedication is attributable to the project. In that the dedication requirementis a value decreasing exaction (the City pays for the property at its underlying agricultural value as opposedto light industrial value), it cannot be considered in determining the fair market value of the property taken. We disagree that the statute applies in this manner. While certainly there would be no requirement of a dedication of property for Indian Avenue,if the Indian Avenue project did notexist, the imposition of a dedication is nonetheless not attributable to the project within the confinesofthe statute. As has been previously discussed, dedication requirements exist independentof any specific project. (See Gov. Code, § 7050 [dedication ofreal property for any public purpose, including, but not limitedto, streets, highways ....”].) The requirement of dedicating private property for public purposes has long been accepted as a proper exercise ofa 7 A similar ruleis in Government Codesection 7267.2, which governs the making of an offer to purchase property prior to initiating eminent domain proceedings. Subdivision (a)(1) of that section providesthatthe offer shall be based on the fair market value of the property, provided that “[a] decrease or increase in the fair market value ._. caused by the public improvement for which the property is acquired,or by the likelihood that the property would be acquired for the improvement,otherthan that dueto physicaldeterioration within the reasonable control of the owneror occupant, shall be disregarded ....” (See also 42 U.S.C.A. § 4651(3).) 40 governmental power. Here, the decreasein value as argued by the ownersis not attributable to the project,it is attributable to a free-standing dedication requirement. In our view,the statute’s application is very straightforward. If, for example, we assumethe samefacts as presented here, the statute would apply in the following manner: Before the Indian Avenue projectthe property had a value of $10 per square foot. As a result of the project, the land’s overall value is $20 per square foot. Underthe statute, the owners would notbe able to recover $20 per square footfor the take, because the increasein valueis attributable to the project. Likewise, if before the project the land wasvalued at $10 per square foot, and as a result of the project the land is valued at $5 per square foot, the City would be precluded from arguing that it should pay the decreased value of $5 per square foot. It is within the above contextthatthe statute and any jury instructions based thereon maybe relevantto this matter. To support the application of section 1263.330, the owners rely on Rancho Penasquitos, supra, 105 Cal.App.4th 1013 and City ofSan Diego v. Barratt American, Inc. (2005) 128 Cal.App.4th 917 (Barratt). Both cases are inapposite. In Rancho Penasquitos, the trial court precluded the city from introducing into evidence at the valuation phaseofthe trial a value based on the properties’ then agricultural use. In affirming the trial court, Division 1 of this court held that the properties’ then agricultural use wasattributable to the project, and therefore inadmissible under section 1263.330. 4} Thefacts pertinentto the court’s decision are as follows: In 1959, the California Legislature established proposed State Route 56 (SR-56). It was to provide a regional link between Interstates 5 and 15. The proposedstate route becamepart of the City of San Diego’s circulation element in 1965. (Rancho Penasquitos, supra, 105 Cal.App.4th at p. 1020.) At somepointthereafter, the city created the North City Future Urbanizing Area (NCFUA). It consisted of 12,000 acres and was “created ‘“to avoid premature urbanization, to conserve open space and natural environmental features andto protect the resources ofthe City by precluding costly sprawl and/or leapfrog urban development.”’ Zoning within the NCFUA was designated as A-1-10 agricultural, allowing one dwelling per every 10 acres....” (/d. at p. 1019.) As part of the planning for the future development, the city established subareas, two of whichrestricted development because the proposed SR-56 corridor would cross somewhere through these subareas. Defendants owned property within these subareas. “Accordingto the City, the purposeofthe zoning restriction was to prevent developmentofland that might conflict with the final alignment of SR-56. However, the ban on developmentdid not apply to properties not within the proposed path of SR-56 and such properties could be upzoned upon application.” (Rancho Penasquitos, supra, 105 Cal.App.4th at pp. 1020-1021 .) In that the exact location of SR-56 had not been determined, the NCFUAprovided, as to the two subareas through which the road wasto be constructed: “‘Subareas II] and IV: The City will undertake an alignment Study for SR-56. Subarea Plans for these areas may be approved, provided sufficient corridors are 42 designated for alternative alignments for SR-56. However, discretionary approvalfor developmentin these subareas shall not be approvedprior to the adoption ofthe City's final alignmentfor SR-56.... [§] ... [9] ‘Final selection of the alignment for SR-56 must occur prior to discretionary approval ofany development in the Torrey Highlands community which is affected by thefinal alignment.’ ...” (Id. at p. 1020.) At some point thereafter, the final alignment of SR-56 was decided upon. In that the alignment went through the defendants’ property, the city filed an eminent domain action seeking to condemn 10.94 acres. Attrial, “[t]he City asserted . .. that because it had a zoningrestriction in place prohibiting higher density developmentofproperties . . . that were in the potential path of SR-56 until the SR-56 project was approved, a zoning change wasnotpossible absent the SR-56 project, and therefore the property must be valuedatits current zoning for agricultural use.” (Rancho Penasquitos, supra, 105 Cal.App.4th at pp. 1017-1018.) The owners contended that because the city was the condemning agency and the entity responsible for the “prohibition of development”and that the prohibition was designed to lowerthecity’s cost of acquisition, the property must be valued based on an amountthat did not considerthe city’s prohibition on zoning changes. Thetrial and appellate courts - agreed with the owners. Asstated by the appellate court: “We conclude that the {trial] court correctly excluded from evidence the City’s zoning restriction precluding upzoningof[the owner’s] property absent approval of the SR-56 project because (1) the zoning and 43 condemning agencies are the same and(2)therestriction discriminates against [the owner’s] property in order to depress its value for a future taking by eminent domain.” (Rancho Penasquitos, supra, 105 Cal.App.4th at p. 1019.) The city “cannot impose a zoning restriction forbidding upzoningin order to preserve land forthe [freeway] project, thereby depressing or freezing the land’s value, andthereafter rely uponthat project- related restriction to set a value on the project. It is undisputed that the sole reason for the restriction was the [freeway] project. It is clear that the zoningrestrictions excluded by the [trial] court were to be used by the City to show a ‘decreasein the value ofthe propertythatis attributable to... [{] ... {t]he project for which the property is taken’ or ‘preliminary actionsofthe plaintiff relating to the taking of the property.’ (§ 1263.330, subds. (a) & (c).)” (/d. at p. 1038.) Because thetrial court was required to “disregard the effect of steps taken by the condemning authority toward that acquisition,’”the City of San Diego could not use the zoning restriction to establish the value of the property. (/d. at p. 1039,italics omitted.) It cannot “‘purport to exercise a police powerby enacting a zoning ordinance whichinreality discriminates against a groupofparcels ofland, in orderto freeze their value with a view to future takings in eminent domain.’” (/d. at p. 1024.) In Rancho Penasquitos, the court was clearly faced with a uniquesituation. Because ofthe proposed SR-56 project, the city had, in essence, placed a moratorium on development throughoutsubareasIII and IV. The A-1-10 agricultural zoning was specifically put into place to freeze property values because of the SR-56 project. The 44 artificial decrease in value wassolely attributable to the project. This differs from the present case, wherein the City is using a free-standing dedication requirement whichis applied across the board to all developmentwithin the community. The requirementfor dedication was not a governmentalaction designed to be applied solely to the Indian Avenueproject. Barratt, supra, 128 Cal.App.4th 917 involved the same freeway project that spawned the Rancho Penasquitos case. In Barratt, both parties were prepared to offer expert testimony valuing the property without considering the impact on value attributable to the project as required by section 1263.330;the issue “was how the appraisers and the jury were to disregard project-caused increases or decreases in the value of the taken property.” (Barratt, supra, at pp. 927, 937.) Each side basedits appraisal on a different fictional assumption. The defendant Owners’ method for valuing the taken property—the “no Project construct”—‘‘was founded on the fiction that the Project had never been conceived or planned.” (Barratt, supra, 128 Cal.App.4th at p. 928.) The City of San Diego’s method—the “abandoned Project construct”——“was founded onthefiction that the Project was abruptly abandoned on the... valuation date.” (Jbid.) Thetrial court granted the owners’ motion in limine to precludethe city’s experts from valuingthe taken property based on the abandoned Project construct. (/d. at p. 929.) At trial, the experts for both sides based their valuation on the assumption that the project had never been planned. (/d. at pp. 930-931.) 45 The Court of Appealheld thatthe trial court correctly barred the city’s experts from relying on the abandonedproject construct. (Barratt, supra, 128 Cal.App.4th at pp. 938-939.) The Barratt court confirmed therule that “developmental constraints ‘predicated on [the] very project’ for which the land was condemned wereirrelevantto the valuation of the taken property.” (/d. at p. 938.) The problem with the city’s abandonedproject construct wasthat while it assumed no “de jure restrictions” on developmentas ofthe date of valuation, it assumedcertain “de facto restrictions”; namely, that the sudden cancellation of the project would result in a moratorium on development unti! a newtraffic plan was developed. (/d. at pp. 928, 938.) Such restrictions, the court held, “did not disregard the impact of the Project on the value ofthe taken property.” (/d. at p. 937.) The court rejected the city’s argument that the owners’ “no Project construct” was based on “an imagined planning process,” and therefore speculative. (/d. at p. 939.) Again, as in Rancho Penasquitos, the underpinning of the abandonedproject construct wasattributed to the A-1-10 agricultural zoning which was specifically put into place to freeze property developmentand values specifically because of the SR-56 project. VI. DISCUSSION/EVIDENTIARY ISSUES AND DEPOSIT A. The Valuation-related Testimonies ofBelmudez and Moilagh The owners claim thetrial court erroneously allowed the city manager (Belmudez) and city engineer (Motlagh)to give expert opinion testimony even thoughthe City did not designate them as expert witnesses. (§ 1258.210 et seq.) Weagree. 46 Both witnessestestified there was a reasonable probability the claimed dedication condition would be imposed; there was an essential nexus between the dedication condition (for traffic improvements) and the developed Stamper Property’s impacts on traffic. Each witness additionally offered testimony asto the issue of the rough proportionality of the dedication requirementto the impacts caused by a developed Stamper Property. While the basis for their opinions may have been gained throughtheir employmentwith the City, their testimony is nonetheless expert in nature. Each witness necessarily relied on municipal developmentstandards and principles oftraffic engineering in comingto their respective conclusions. Both areas are beyond lay knowledge. Asset forth in the California Law Revision Commission Comments, 19 West’s Annotated Code of Civil Procedure (2007 ed.) following section 1258.240, page 604 (List of witnesses; contents): “Section 1258.240 is the same as former Section 1272.03. It requires inclusionofall persons to be called as experts, not merely those to be called as valuation experts.” While we are awarethat the discovery act does not apply to eminent domain actions (see § 2034.010), each side will have the opportunity to appropriatelylist their respective experts uponretrial (cf. Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245). 47 B. The Postjudgment Order Regarding the Deposit is Reversed Beforetrial, the City deposited $511,602 as the probable amount of compensation payable to the owners. (§ 1255.010.) After trial, the court issued a postjudgmentorder allowing the City to withdraw the deposit to the extent it exceeded the $44,000 judgment. (§ 1255.030, subd. (e) [“If the court determines that the amount deposited exceeds the probable amount of compensation,it may permit the plaintiff to withdraw the excess not already withdrawn by the defendant”].) The owners separately appeal the postjudgment order. Because the Judgmentis reversed and the matter remandedfora jurytrial on the value of the take, the postjudgmentorder allowing the City to withdraw a portion of the deposit must also be reversed. VII. DISPOSITION The judgmentis reversed and the matter is remanded for a Jury trial on the amount of compensation,including the value ofthe take and severance damages. The postjudgmentorder allowing the City to withdraw the amountit deposited in excess of $44,000 is also reversed. The owners shall recovertheir costs on appeal. CERTIFIED FOR PUBLICATION KING Weconcur: McKINSTER Acting P. J. MILLER 48 PROOF OF SERVICE I am employedin the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 18881 Von Karman Avenue, Suite 1700, Irvine, CA 92612. On September18, 2013, I served the within document(s) described as: PETITION FOR REVIEW ontheinterested parties in this action as stated on the attached mailing list. L LI perjury underthe lawsofthe State of California that the, fi (BY MAIL) Byplacing a true copy of the foregoing document(s) in a sealed envelope addressed as set forth on the attached mailing list. I placed each such envelope for collection and mailing following ordinary business practices. I am readily familiar with this Firm's practice for collection and processing of correspondence for mailing. Under that practice, the correspondence would be deposited with the United States Postal Service on that same day, with postage thereon fully prepaid at, Irvine, California, in the ordinary course ofbusiness. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one dayafter date of deposit for mailing in affidavit. (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by Norco Overnite (formerly known as Overnite Express), an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, a true copy of the foregoing document(s) in a sealed envelope or package designated by the expressservice carrier, addressed as set forth on the attached mailinglist, with fees for overnight delivery paid or providedfor. (BY FAX) Bytransmitting a true copy ofthe foregoing document(s) via facsimile transmission from this Firm's sending facsimile machine, whose telephone numberis (949) 223-1180, to each interested party at the facsimile machine telephone number(s) set forth on the attached mailing list. Said transmission(s) were completed on the aforesaid date at the time stated on the transmission record issued by this Firm's sending facsimile machine. Each such transmission was reported as complete and without error and a transmission report was properly issued by this Firm's sending facsimile machine for each interested party served. A true copy of each transmission report is attached to the office copy ofthis proof of service and will be provided upon request. (BY E-MAIL) Bytransmitting a true .pdf copy of the foregoing document(s) by e- mail transmission from lyarvis@awattorneys.com to each interested party at the e- mail address(es) set forth above. Said transmission(s) were completed on the aforesaid date at the time stated on declarant’s e-mail transmission record. Each such transmission was reported as complete and withouterror. (BY PERSONAL SERVICE)I caused to be delivered a true copy of the foregoing document(s) in a sealed envelope by handto the offices of the above addressee(s). Executed on September 18, 2013, at Irvine, California. I declare under penalty of Oing is true and correct. Helen B. Yurek \ Gok (Typeor print name) ’ Renapare) PROOF OF SERVICE 01006/0061/110671.01 Richard C. Stamper, et al. v. City ofPerris California Court of Appeal, Fourth Appellate District, Division Two — Case No. E053395 City ofPerris v. Richard C. Stamper, et al. Riverside Superior Court, Central District — Case No. RIC524291 SERVICE LIST K.Erik Friess, Esq. ATTORNEYS FOR DEFENDANTS ALLEN MATKINS LECK GAMBLE AND APPELLANTS, MALLORY & NATSSIS, LLP Richard C. Stamper, Donald D. Robinson 1900 MainStreet, 5” Floor and Donald Dean Robinson, LLC Irvine, CA 92614 T 949.553.1313 (I Copy) F 949.553.8354 . E-MAIL:rfriess@allenmatkins.com [VIA OVERNIGHT MAIL] Supreme Court of California (1 ORIGINAL & 13 COPIES) Office of the Clerk, First Floor 350 McAllister Street San Francisco, CA 94102 [VIA OVERNIGHT MAIL] Tel: (415) 865-7000 Hon. Dallas S. Homes (1 Copy) c/o Clerk of the Court Riverside County Superior Court [VIA OVERNIGHT MAIL ] 4050 MainStreet Riverside, CA 92501 Tel: (951) 777-3147 Court of Appeal 4th District Div 2 (I Copy) RiversideCA9001 [VIA OVERNIGHTMAIL ] Phone: (951) 782-2500 Fax: (951) 248-0235 -2- PROOF OF SERVICE 01006/0061/110671.01