Hecton v. People Ex Rel. Department of Transportation

Opinion

FLEMING, Acting P. J.

Joseph and Gigii Hecton appeal the judgment of dismissal after the trial court sustained without leave to amend the demurrer of the People of the State of California acting by and through the Department of Transportation, to their complaint for damages for diminution in value of property due to condemnation of adjacent properties for construction of a freeway.

The first amended complaint alleges: Plaintiffs own a 40,000-square-foot parcel of property at 10, 620-10, 636 East Imperial Highway, Norwalk, on which they Operate a shopping center including a 7-11 store, meat market, cocktail lounge, liquor store, bicycle shop, donut shop, beauty salon, barber shop and automobile supply store. Between 1970 and 1972 defendant acquired about 50 acres of land surrounding and immediately adjacent to plaintiffs’ land for use as part of an extension of the Century Freeway. Occupants of the acquired properties moved

[656]

elsewhere. In acquiring the properties, defendant failed in its responsibility to preserve and enhance the environment and to comply with federal environmental protection statutes. (See

Keith

v.

Volpe

(C.D.Cal. 1972) 352 F.Supp. 1324, affd. 506 F.2d 696, cert. den., 420 U.S. 908 [42 L.Ed.2d 837, 95 S.Ct. 826].) Defendant’s acquisition caused a $100,000 diminution in the fair market value of plaintiffs’ property due to loss of business. This taking violated state and federal law and was an inverse condemnation. The State Board of Control denied plaintiffs’ claim for compensation.

Plaintiffs contend their complaint states a cause of action in tort for violation of federal and states statutes and does or could be amended to state a cause of action for inverse condemnation.

1

For their claim in tort, plaintiffs concede the federal and state environmental protection statutes (National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.; California Environmental Quality Act (CEQA), Pub. Resources Code, § 21000 et seq.) in themselves create no cause of action for damages for violation of their provisions. Plaintiffs contend, nevertheless, that violation of NEPA