Untitled California Attorney General Opinion ( 1990 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 89-803
of :
: MAY 3, 1990
JOHN K. VAN DE KAMP :
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
__________________________________________________________________
THE HONORABLE DOUGLAS C. HOLLAND, CITY PROSECUTOR, CITY
OF BURBANK has requested an opinion on the following question:
Is a section of highway more than 300 feet long, fronted
on both sides entirely by businesses which do not have vehicular
access to the highway by driveways or alleys, in "a business
district" within the meaning of Vehicle Code section 22102 which
prohibits U-turns in business districts except at intersections?
CONCLUSION
A section of highway more than 300 feet long that is
fronted on both sides entirely by businesses which do not have
vehicular access to the highway by driveways or alleys, is not in
"a business district" within the meaning of section 22102 of the
Vehicle Code.
ANALYSIS
This opinion discusses the legality of making U-turns on
a certain type of highway. Section 22102 of the Vehicle Code
generally prohibits the making of U-turns in "business districts."1
A "business district" is defined in section 235 as a portion of a
highway where fifty percent of the contiguously fronting property
on both sides for 300 feet is occupied by business buildings. But
subdivision (d) of section 240 provides that a highway or portion
1
Further references to sections of the Vehicle Code will be by
section number only, and all unidentified statutory references
herein should be understood to be to that Code.
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of a highway shall not be deemed to be within a business district
if there is no right of access to the highway by vehicles from the
contiguous property.2
We are asked whether a section of highway that is more
than 300 feet long and is fronted on both sides entirely by
businesses is to be considered a "business district" within the
meaning of section 22102 if the contiguous business properties do
not provide vehicular access to the highway by driveways or alleys.
We conclude that it is not.
Our primary task in answering the question presented is
to ascertain the intention of the Legislature: Did the Legislature
consider such a stretch of highway to be a "business district" for
the purpose of specifically prohibiting U-turns in it under section
22102? (Cf., Sand v. Superior Court (1983) 34 Cal. 3d 567, 570;
Great Lakes Properties, Inc v. City of El Segundo (1977) 19 Cal. 3d
152, 153; Select Base Materials v. Board of Equalization (1959) 51
Cal. 2d 640, 645.) To ascertain that intention we turn first to the
words of the statutes involved. (People v. Stockton Pregnancy
Control Medical Clinic, Inc. (1988) 203 Cal. App. 3d 225, 235; Moyer
v. Workmen's Compensation Appeals Board (1973) 10 Cal. 3d 222, 230;
Steilberg v. Lackner (1977) 69 Cal. App. 3d 780, 785; Rich v. State
Board of Optometry (1965) 235 Cal. App. 2d 591, 604.)
Section 22102 provides as follows:
"No person in a business district shall make a U-
turn, except at an intersection, or on a divided highway
where an opening has been provided in accordance with
Section 21651."
Sections 100 through 680 provide definitions for various
words and phrases used in the Vehicle Code. Section 100 provides
that "unless the provision or context otherwise requires, these
definitions shall govern the construction of [the] Code." The term
"business district" is defined in section 235 as follows:
"A ``business district' is that portion of a highway
and the property contiguous thereto (a) upon one side of
which highway, for a distance of 600 feet, 50 percent or
more of the contiguous property fronting thereon is
occupied by buildings in use for business, or (b) upon
both sides of which highway, collectively, for a distance
of 300 feet, 50 percent or more of the contiguous
property fronting thereon is so occupied. A business
2
The term "highway" is generic; section 360 defines it as "a
way or place of whatever nature, publicly maintained and open to
the use of the public for purposes of vehicular travel. Highway
includes street."
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district may be longer than the distances specified in
this section if the above ratio of buildings in use for
business to the length of the highway exists."
Under the section, "the occupancy of the land is the determining
factor in fixing the character of the district. The required
number of buildings used for business purposes in a given distance
is sufficient for the establishment of a ``business district'."
(Adrian v. Guyette (1936) 14 Cal. App. 2d 493, 502, interpreting
former § 28½, subdivision (a) of the Vehicle Act as amended in
1929, a precursor to § 235; see also, Newton v. Thomas (1955) 137
Cal. App. 2d 748, 758-760, 763.) The portion of highway described in
our question would clearly be within a business district, as
defined in section 235, because it is more than 300 feet long and
the contiguously fronting property on both sides is occupied
entirely by businesses.
However, the basic definition of "business district"
found in section 235 is qualified by section 240 which provides as
follows:
"In determining whether a highway is within a
business or residence district, the following limitations
shall apply and shall qualify the definitions in Sections
235 and 515[3]:
"(a) No building shall be regarded unless its
entrance faces the highway and the front of the building
is within 75 feet of the roadway.
"(b) Where a highway is physically divided into two
or more roadways only those buildings facing each roadway
separately shall be regarded for the purpose of
determining whether the roadway is within a district.
"(c) All churches, apartments, hotels, multiple
dwelling houses, clubs, and public buildings, other than
schools, shall be deemed to be business structures.
"(d) A highway or portion of a highway shall not be
deemed to be within a district regardless of the number
3
Section 515 provides the definition of "residence district"
in much the same way as section 235 defines "business district," to
wit, by the number and type of occupancies (dwelling houses or
business structures) of contiguously fronting properties over a
specified distance (¼ mile). Section 22103 prohibits the making of
U-turns in residence districts when another vehicle is approaching
from either direction within 200 feet, except at an intersection
where the approaching vehicle is controlled by an official traffic
control device.
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of buildings upon the contiguous property if here is no
right of access to the highway by vehicles from the
contiguous property." (Emphases added.)
Section 240 derives almost verbatim from the addition of
section 90.1 to the Vehicle Code of 1935, in 1939. (Stats. 1939,
ch. 658, p. 2106, § 1.)4 That addition dramatically changed the
legislative definition of business district that was then found in
section 89 of the Vehicle Code. (It also dramatically changed the
parallel legislative definition of residence district that was
found in section 90 of the Code.)5
Exactly like section 235 today, section 89 of the Vehicle
Code of 1935 predicated whether an area is a business district on
the number of business buildings contiguously fronting upon a
highway passing through it. (Cf., Newton v. Thomas, supra, 137
Cal.App.2d at 758-760, 763; Adrian v. Guyette, supra, 14 Cal.App.2d
at 502-503.) But subdivision (d) of section 90.1, which is
essentially the same as subdivision (d) of section 240 as it
appears today, now added a second step to the definitional process
which had the effect of largely abandoning the nature of the
occupancy of the land as the determining factor in fixing the
character of the district. By stating with plain reference to
4
As added, the new section 90.1 read: "Limitations in
Determining Business and Residence Districts. In determining
whether a highway is within a business or residence district, the
following limitations shall apply and shall qualify the definitions
in sections 89 [defining business district] and 90 [defining
residence district]: .... (d) A highway or portion of a highway
shall not be deemed to be within a business or residence district
regardless of the number of buildings upon the contiguous property
when there is no right of access to the highway by vehicles from
the contiguous property."
5
Section 89 defined "business district" as section 235 does
today (Stats. 1935, ch. 27, p. 99, § 89) and section 90 of the
Vehicle Code of 1935 defined the term "residence district" as
section 515 does today (id., § 90; cf., fn. 3, ante.) From a
historical prospective it is noted that although those definitions
derived directly from section 28½ of the Vehicle Code as amended in
1929 (Stats. 1929, ch. 253, p. 510, § 7), they have been defined in
California law since at least 1913. (E.g., Stats. 1913, ch. 326,
p. 639, § 1(5) ["business district" shall mean the territory of any
county or incorporated city and county, city or town, contiguous to
public highway, which is at that point mainly built up with
structures devoted to business"]); see also Stats. 1905, ch. DCXII,
p. 816, § 1, subd. (1.)(3) ["``closely built up' shall mean (a) the
territory of any county or incorporated city and county, city or
town contiguous to a public highway which is at that point built up
with structures devoted to business."].)
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section 89 that "[a] highway shall not be deemed to be within a
[business] district", it removed from being a business district, as
defined in section 89, an area "when there is no right of access to
[a] highway by vehicles from the contiguous property", "regardless
of the number of buildings [or their character] upon the contiguous
property." In other words, an area where there was "no right of
access to the highway by vehicles from the contiguous property" was
not to be considered a business district (for purposes of the
Vehicle Code), regardless of the character of the occupancies of
the buildings fronting on the highway. The subdivision thus
provided a nigh absolute determinant of when a highway was not to
be considered as being within a business district.
In Newton v. Thomas, supra, 137 Cal. App. 2d 748, the court
said that the purpose for the enactment of section 90.1 was "to
provide safety in the use of vehicles in areas where there is a
great deal of turning, slowing and congestion." ( Id. at 759.)
Indeed, the court held that it did not matter whether access to a
building from a highway was by a driveway from the highway to a
side entrance rather than its front because the salient fact
remained that "[t]he traffic and congestion which the section has
in mind would be equally great under the one condition as the
other." (Id. at 760.)
From this we can understand why section 90.1 limited the
basic definition of "business district" that was provided by
section 89. Generally speaking, in such districts "considerable
congestion of vehicular traffic and pedestrians is to be expected"
and so, in order to provide for the "safety of the traveling and
pedestrian public", the Legislature imposed restrictions on the
speed and movement of vehicles in them. (Adrian v. Guyette, supra,
14 Cal.App.2d at 503-504; see e.g., § 22101, supra.) But
subdivision (d) of section 90.1 recognized that where "there is no
right of access to [a] highway by vehicles from ... contiguous
property" there can be no increase in traffic and congestion to and
from the highway with its attendant danger, to warrant restrictions
on speed and movement of vehicles which would otherwise be
necessary. Accordingly, in that situation, "regardless of the
number of [business] buildings upon the contiguous property", the
subdivision discounted a highway as being within a "business
district" so as not to trigger other sections of the Vehicle Code
which would then invoke the application of those restrictions, such
as the one prohibiting U-turns. (Cf., Butigan v. Yellow Cab Co.
(1958) 49 Cal. 2d 652, 656.)6
6
It should also be noted that where contiguous properties do
provide access to a highway, a means is available for motorists to
reverse their direction of travel without making a U-turn on the
highway. They can drive into the driveway and back out again to go
in the opposite direction. (See Butigan v. Yellow Cab Co., supra,
49 Cal. 2d 652, 656.)
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Like its predecessor, subdivision (d) of section 240
plainly states with reference to section 235 that "[a] highway or
portion of highway shall not be deemed to be within a [business]
district regardless of the number of [business] buildings on the
contiguous property if there is no right of access to the highway
by vehicles from the contiguous property." The subdivision thus
continues to set that qualification as an absolute determinant of
when a stretch of highway shall not be considered to be within a
business district.
Property contiguous to a highway "means the territory
with its land lying along and adjoining [it]." (Adrian v. Guyette,
supra, 14 Cal.App.2d at 502.) We interpret the "right of access by
vehicles" to mean the existence of a path between the highway and
the contiguous property of sufficient width to permit the passage
of motor vehicles without obstruction (such as curbs, fences or
walls), except those placed by the owner or those in lawful
possession of the contiguous property to control vehicular access
(such as gates or doors) to the property. Thus under subdivision
(d) of section 240, a street in a city block between intersections
which is bounded on both sides by curbs uninterrupted by any space
designed to permit vehicular crossings cannot be in a business
district as defined in the Vehicle Code regardless of how many
businesses may be in the buildings fronting such street.
We therefore conclude that a section of highway more than
300 feet long, that is fronted on both sides entirely by businesses
which do not provide vehicular access to the highway by driveways
or alleys, is not within a "business district" for purposes of
Vehicle Code section 22102. If local authorities wish to prohibit
the making of U-turns in such areas, they must look to other
sections of the Vehicle Code (e.g., § 22113) for authority to do
so.
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