Metropolitan News-Enterprise


Monday, September 27, 2004


Page 1


Court of Appeal Rules:

City Must Pay Lawyer $150,000 for Loss of His Parking Space


By KENNETH OFGANG, Staff Writer/Appellate Courts


A $150,000 award to an Orange attorney who lost the use of his parking space to the city’s renovation of the historic district where he has practiced law for more than four decades was affirmed Friday by the Fourth District Court of Appeal.

Presiding Justice David Sills, writing for Div. Three, said the city was estopped from arguing that Mark Hurwitz should have sought mandate relief rather than monetary compensation, since it erected a fixed barrier to access before any court proceedings were filed.

“Specifically, the city now claims on appeal that it should be immune from a condemnation award because instead of merely defending a condemnation proceeding brought by the city itself, the landowner should have also filed a proceeding in administrative mandate to...well, that’s the problem—to obtain what relief?” Sills wrote. “When deconstructed, the city is saying that the landowner should have brought an administrative mandate proceeding to prevent what the city had already done and to adjudicate what was going to be adjudicated in the condemnation proceeding already underway. If we were scorekeepers, the city’s conduct might be graded this way: Plus 10 for chutzpah, minus 1000 for jumping the gun.”

Hurwitz has practiced on the Orange Circle, at Glassell and Chapman avenues, since his admission in 1962. He joined his father’s firm and eventually inherited the building where the elder Hurwitz had practiced since 1946.

For more than 50 years, the Hurwitzes used a gap between their building and the one next door to park a car. Photographs admitted at trial showed vehicles parked there as early as the 1920s.

Access Blocked

The city, however, decided to enhance the charm of the old city square by blocking off the gap and precluding automotive access into the public street that forms the circle. It thus created more open-air space for patrons of the Cuban restaurant and the coffee house next to the Hurwitz building, created potential for increased sales tax revenue, and increased the “yuppification” of the area, Sills explained.

This was “all very win-win-win, except for Mr. Hurwitz,” the presiding justice said, especially since the city insisted that the attorney was not entitled to compensation for the loss of the parking space.

In March 2001, about three years after officials first made their plans known, Hurwitz learned that the city was about to demolish the driveway and erect a curb in its place. He filed suit, and obtained a preliminary injunction barring the city from “directly or indirectly...[d]emolishing, blocking, barricading, commencing construction upon, eliminating or otherwise interfering with or depriving Plaintiff of the use of the driveway and/or Plaintiff’s right of vehicular ingress and egress.”

Despite the injunction, Sills explained, the city went ahead and built a new curb and sidewalk and bolted benches across the sidewalk, making access to the gap impossible. The city later held a hearing, declared the use of the gap as a parking space a “nuisance,” and directed the city attorney to bring abatement or condemnation proceedings to “acquire” the “vehicular access” of the property.

With the injunction suit still pending, the city brought a cross-complaint seeking to acquire rights to the gap by eminent domain. At trial two years ago, Orange Superior Court Judge Thierry P. Colaw ruled that Hurwitz did not have to file a separate mandate proceeding, that the use of the gap for parking was not a nuisance subject to summary abatement, and that Hurwitz was entitled to have a jury determine the value of his loss under the Eminent Domain Law.

Value Disputed

The city argued that the loss of the space was worth no more than $1,000, based on the usual cost of renting a daily parking space in the area. Hurwitz presented an expert who testified that the loss of the space had reduced the building’s value by $150,000, and the jury awarded that amount.

Sills concluded that Hurwitz was entitled to the award. The city’s characterization of the parking space as a nuisance after it had already violated the injunction and built the curb rendered any administrative proceeding futile, the presiding justice wrote.

“The ‘nuisance’ was already ‘abated’ in late May before the city council took any action in June to, in essence, ratify what the cement contractors working on the sidewalk had already done,” he wrote.

The case is Hurwitz v. City of Orange, 04 S.O.S. 5209.


Copyright 2004, Metropolitan News Company