Opinion
For Opinion on Hearing, see 133 Cal.Rptr. 859, 555 P.2d 1099.
Opinions on pages 238-285 omitted. [*]
[544 P.2d 594] [126 Cal.Rptr. 594] Higgs, Fletcher & Mack, by Donald H. Glaser and Roger Hedgecock, San Diego, for plaintiffs and appellants.
Jennings, Engstrand & Henrikson, by Donald F. McLean, Jr., and C. Michael Cowett, San Diego, for detendants and respondents.
Evelle J. Younger, Atty. Gen., Robert H. O'Brien, Asst. Atty. Gen., Nicholas C. Yost and C. Foster Knight, Deputy Attys. Gen., for amicus curiae California Atty. Gen.
Marguerite B. Stein, Chula Vista, for League of Women Voters, San Diego South Bay Cities, as amicus curiae in support of Sweetwater Valley.
GERALD BROWN, Presiding Justice.
Is it permissible for the City of National City (City) to designate the Bonita Golf Course as 'blighted' under the Redevelopment Law in order to encourage the development of a shopping center?
The land in question involves about 130 acres, 95% of which is owned by the Koenig Corporation. One hundred and three acres comprise a golf course, which is part of a private club on the Koenig property; the course is also open to the public. In October 1973 Koenig wrote the Mayor and City Council, noting part of the property had been taken for a freeway right-of-way and this plus changes in water run-off 'have resulted in depreciated value, impaired investment and unproductive condition of the land.' He asked the City Council to designate the area as a study area under the Redevelopment Law. On November 14, 1973, the National City Redevelopment Agency (Agency), publicly announced the proposed development. The same day, the Agency and the City Council (the membership being the same) authorized and ratified contracts for the development of the shopping center; authorized execution of a contract for environmental impact services; authorized contracts for engineering services; and authorized funds for these purposes. On April 2, 1974, the Agency found the project could have a significant effect on the environment and an Environmental Impact Report (EIR) should be prepared. After public comment, the EIR was adopted by the Agency July 2, 1974, at an adjourned regular meeting. The Agency and the National City Planning Commission approved the redevelopment project.
On August 16, 1974, the Sweetwater Valley Civic Association (Association) sought a writ of mandate from the San Diego Superior Court alleging the golf course was not a proper area for redevelopment and the EIR did not comply with state law.
The Sweetwater Valley Civic Association is a group of 600-650 members comprised of taxpayers, residents and property owners of the Sweetwater Valley.
On September 3, the City Council and the Agency adopted the project redevelopment plan for a 70-building commercial shopping center.
The court temporarily enjoined any grading activity on the project November 22, 1974. After a trial in the complaint and a petition for writ of mandate, the superior court denied relief, stating, 'nothing [had] come before it to indicate . . . there was not substantial evidence to support the decision of the Agency, nor can it say . . . the Agency abused its discretion.' Judgment was entered December 13, 1974. A notice of appeal was filed January 3, 1975. On February 7, 1975 a petition for a writ of mandate or alternatively for a writ of supersedeas and request for temporary stay was filed in this Court. The stay was granted on March 14, 1975 and the appeal from the denial of the writ in the superior court was accelerated.
There was an attempt to repeal the City's ordinance designating the project area as blighted at a special election held on December 9, 1975. However, 62.4% of those voting that day rejected this opportunity, thereby signifying their support for the use of redevelopment financing procedures to assist the proposed development. We take judicial notice of these events in order to complete the factual record.
[544 P.2d 595] [126 Cal.Rptr. 595] The Association contends the City Council and the Agency abused their discretion by finding the golf course is a 'blighted area' within the meaning of the California Community Redevelopment Law (Health & Saf.Code § 33000 et seq.). We look first to the statutes.
A necessary pre-condition to the adoption of a redevelopment plan is a finding by the City Council the project area is 'blighted' within the meaning of Health and Safety Code sections 33031-33034 (Health & Saf.Code § 33367(d)(1)). A review of these statutes shows there are two general categories of 'blight': areas of slums (Health & Saf.Code § 33031) and areas which are characterized by social, recreational, aesthetic and economic maladjustment (Health & Saf. Code §§ 33032, 33032.1, 33033, 33034). Here we are concerned only with the second situation. Our question is whether there is substantial evidence to support the finding of blight as defined in the statutes.
An area may be found to be 'blighted' if one or more of the conditions in sections 33031-33034 exists. These sections characterize blight as follows:
'A blighted area is characterized by:
(a) An economic dislocation, deterioration, or disuse, resulting from faulty planning.
(b) The subdividing and sale of lots of irregular form and shape and inadequate size for proper usefulness and development.
(c) The laying out of lots in disregard of the contours and other physical characteristics of the ground and surrounding conditions.
(d) The existence of inadequate streets, open spaces, and utilities.' (Emphasis ours.)
Here there was evidence of faulty planning leading to economic dislocation or disuse. The developments northeast of Sweetwater Road have altered the water run-off courses causing inundation and depositing mud and debris on the golf course which has necessitated its closure for periods up to two weeks. The Association counters this evidence by saying these developments were all approved by the City, perhaps in violation of their grading ordinance. The legal significance of this statement is not clear. One inference, however, is there was planning for these developments and the planning was faulty.
The project site is located in three jurisdictions: the City of National City (about 113 acres), the City of Chula Vista (about 2 acres) and the County of San Diego (about 15 acres). Public services and utilities to the latter two parcels can now only be provided by the City of National City since the construction of I-805 has blocked access to these parcels except by trespassing on private property. Approximately 17 acres are inaccessible except through the City and across private property. Another 10 acres, owned by the County, can be reached only by trespassing on private property or from the west in the flood control channel under I-805.
A former borrow area has been backfilled with uncontrolled fill contributing to unstable soils conditions. There is no evidence the other existing soils problems, such as lack of uniformity or the high water table, are due to faulty planning.
In the construction of I-805, some of the project site was taken for freeway right-of-way, thus reducing the size of the golf course to 103 acres. There was evidence presented this is less than an ideal size for a golf course. But there was no evidence[544 P.2d 596] [126 Cal.Rptr. 596] that membership in the Club had decreased or that revenues had suffered because of the change. In short, there was no showing in this instance of an economic deterioration, dislocation or disuse.
The City also points out the existence of a 42"' sewer line which passes through the property at a point where it might be ruptured by a washout during a storm.
In addition, the area is encumbered by so many easements that intervention by government would probably be necessary if development is to take place. There is no indication how the existence of these easements is a result of faulty planning unless this can be inferred merely from the great number of easements.
There is no question virtually the entire area is subject to being submerged by water (Health & Saf.Code § 33032(e)). This, plus the economic deterioration resulting from faulty planning, as evidenced by increased inundation, increased inaccessibility and unstable soils provides substantial evidence to support the finding the area was blighted under section 33032.
Health and Safety Code section 33033 states:
'A blighted area is characterized by a prevalence of depreciated values, impaired investments, and social and economic maladjustment to such an extent that the capacity to pay taxes is reduced and tax receipts are inadequate for the cost of public services rendered.' (Emphasis ours.)
Here there was evidence the tax assessment and the taxes paid on the subject property are less than those for other privately held commercially zoned land in the City. However, there was no evidence to show these particular property owners had their capacity to pay taxes reduced. In order to show an increase or a reduction it is necessary to have data from at least two points in time; here there are figures for only one.
The City points out ground water deficiencies due to salt water intrusion are causing the eucalyptus to die and the ground cover to deteriorate. Such a situation does not necessarily reduce the capacity to pay taxes; one can only speculate the possible decrease in the number of trees and the possible decline in plant growth would reduce the capacity to pay taxes.
The City says the tax receipts from this property are insufficient to pay for the property's pro rata share of municipal services. There was no evidence the tax receipts from this property are inadequate for the cost of public services rendered as is required by the statute.
The City says the existing use of the golf course is not economically feasible because (1) the new design which was necessary after ,1-805 was constructed is not as acceptable to the consumer as the previous design; (2) new construction northeast of Sweetwater Road has altered the natural drainage causing inundation so the driving range must be closed periodically for repairs; and (3) the groundwater deficiencies make it more expensive to run the golf course than would otherwise be the case. Although these conditions could produce a situation which would decrease profitability such that one's capacity to pay taxes was reduced, there is no evidence to that effect in the present case.
Thus, from the record before this Court there is no evidence to support a finding of blight under Health and Safety Code section 33033.
Section 33034 reads:
'A blighted area is characterized by:
(a) In some parts of the blighted area, a growing or total lack of proper utilization of areas, resulting in a stagnant and unproductive condition of land potentially useful and valuable for contributing to the public health, safety, and welfare.
(b) In other parts of the blighted area, a loss of population and reduction of [544 P.2d 597] [126 Cal.Rptr. 597] proper utilization of the area, resulting in its further deterioration and added costs to the taxpayer for the creation of new public facilities and services elsewhere.'
The question of whether a particular use of land is proper of improper depends greatly on the philosophical basis of the person who answers. Here the City Council wants to make is economically attractive for a regional shopping center to locate in its jurisdiction in order to provide jobs and increase tax revenues. Is this a proper goal? The Legislature has declared that 'genuine employment opportunities . . . are vital to the state's future peace and prosperity.' (Health & Saf.Code § 33070.) As for the purposes of redevelopment:
'The Legislature further finds and declares that a fundamental purpose of redevelopment is to expand the supply of low-and moderate-income housing, to expand employment opportunities for jobless, underemployed, and low-income persons, and to provide an environment for the social, economic, and psychological growth and well-being of all citizens.' (Health & Saf.Code § 33071.)
Thus, the City Council and Agency are using an appropriate criterion as the philosophical basis for their determination. In light of this, the City points to the land, some 22 acres, not included in the golf course and finds it 'vacant and unproductive.' Because the land in question lies in a flood plain, is burbened with a multitude of easements and needs relocation of utilities for development to occur, the land remains underutilized and stagnant; because the land is not being used at its highest and best use, the land is unproductive. When one adopts the City's frame of reference, there is substantial evidence there is a lack of proper utilization of the land which makes potentially useful land relatively unproductive. It is not the function of the reviewing court to substitute its judgment for that of the Agency unless their decision is arbitrary (Babcock v. Community Redev. Agency, 148 Cal.App.2d 38, 49, 306 P.2d 513).
However, it is the declared policy of the State, even though the area is blighted, it should not come under the Redevelopment Law unless redevelopment of the area could not be accomplished by private enterprise.
'(b) That whenever the redevelopment of blighted areas cannot be accomplished by private enterprise alone, without public participation and assistance in the acquisition of land, in planning and in the financing of land assembly, in the work of clearance, and in the making of improvements necessary therefor, it is in the public interest to employ the power of eminent domain, to advance or expend public funds for these purposes, and to provide a means by which blighted areas may be redeveloped or rehabilitated.' (Health & Saf.Code § 33037(b).)
The evidence supporting the assertion private enterprise cannot accomplish the redevelopment of the area is set out by the City as: (1) the many easements burdening the properties; (2) the lack of any private development of the land for 3 1/2 years after it was rezoned to commercial; (3) the inundation problem which is economically unfeasible for private enterprise to solve.
There are more than 60 recorded easements burdening these parcels which date back to 1869; the easements affect private individuals and their families as well as utility companies; some are floating easements whose location must be defined. Because of the number and age of the easements public assistance will be needed to remove and change them so development can occur.
The fact private development did not occur immediately after the change in zoning is not necessarily due to a need for public participation and assistance. Often land will be bought and held or rezoned and held for future development. In addition, the letter from Koenig to the City [544 P.2d 598] [126 Cal.Rptr. 598] Council indicates public assistance had not been necessary until after the increased inundation due to the development northeast of Sweetwater Road and after the taking of the right-of-way for I-805.
The inundation problem is one which must be faced whenever development is proposed for a flood plain. Here the Federal government is sponsoring the control devices up to but not including the project site, in order to protect development already located downstream in urbanized National City. There are tremendous costs involved in relocating utilities, providing flood channels and importing earth fill both to raise the site out of the flood plain and to provide an adequate foundation for the construction of buildings. This and the need for assistance to relocate easements provide substantial evidence there is a need for public assistance for this project.
The Association says it is the proposed shopping center itself which is the blight. They point out flood plain areas are well suited for open uses such as golf. But the crux of the matter is: Did the City Council abuse its discretion by deciding to make it economically attractive for a regional shopping center to locate in its jurisdiction and consequently to benefit the public welfare by providing jobs and increasing tax revenues? Where as here there is substantial evidence to bring the project within the Redevelopment Law, it did not abuse its discretion.
Because there is substantial evidence to support the decision made by the City Council it is unnecessary for us to consider whether this decision should be accorded the status of a conclusive presumption. (See Health & Saf.Code § 33368; cf. Health & Saf.Code § 33500.)
The Association complains about the EIR which was prepared for this project. They first say it does not adequately comply with the California Environmental Quality Act (CEQA) and second it was improperly adopted because there are no social or economic features overriding the adverse environmental effects of the project.
The EIR is an informational document and it is not necessary for it to be complete in every respect.
'The report should provide decisionmakers with information which enables them to make a decision which intelligently takes account of the environmental consequences . . .. However, an evaluation of the environmental effects of a proposed project need not be exhaustive . . .. The sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible [Citations]. Preparation of an EIR need not be interminably delayed 'to include all potential comments or results of works in progress which might shed some additional light on the subject of the impact statement. . . . The courts should look for adequacy and completeness in an impact statement, not perfection.' [Citations.] The agency charged with preparation of the report is not barred from making reasonable forecasts (citation) and disagreements among experts do not require the invalidation of an EIR [Citation]. While the decisionmakers must take account of environmental objections (citations) satisfactory answers to these objections may be provided by reference to the EIR itself. [Citation.]' (San Francisco Ecology Center v. City and County of San Francisco, 48 Cal.App.3d 584, 594, 122 Cal.Rptr. 100, 106.)
Here, the required report contains 378 pages including the comments of some 25 agencies and individuals and a 30-page response to these comments. The Association does not complain any of the statutorily required contents of the EIR was omitted. (See Pub.Res.Code § 21100 and 14 Cal.Admin.Code §§ 15000-15180). Rather they contend the depth and/or scope of particular items within the report is deficient.
The Association does not question the report's qualitative description of the [544 P.2d 599] [126 Cal.Rptr. 599] project's impact on air resources; rather it says the report is not adequate because it does not quantify the impact. The project sponsors were aware methods were available to quantify the effect of air pollution and elected not to do it. When comments to the draft EIR criticized the work, the project's effect on air quality was re-analyzed. At the hearing on the Final EIR (July 2, 1974) no one questioned the response to the critical comments on air quality or pointed out the author's failure to use a quantitative technique. When one reads the EIR, there is no doubt there are air pollution problems connected with this project. However, there is substantial evidence in a letter from the California State Air Resources Board that the report on air pollution was adequate. This letter stated:
'Based on the data presented in the report, the Bonita Plaza project does not appear to conflict with the achievement and maintenance of State and Federal air quality standards.'
The Association questions the report's description of the project's effect on the micro-climate by saying: (1) there is no definition of 'micro-climate'; (2) there is no delineation of the area included in the micro-climate and (3) there is no description of the effect the modification of the micro-climate will have on the nearby area. However, these criticisms were never voiced below; this is not an appropriate issue on appeal.
The Association and the Attorney General as Amicus Curiae complain the EIR does not adequately explore the alternatives to the project as required by Public Resources Code section 21100(d) and 14 California Administrative Code section 15143(d). The alternatives to the proposed action were presented in a 2 1/2 page chart with one page of explanatory text which gave eight alternatives: no project, a park, a light industrial/research/office park, a multiple residential development, single family residential development, a redevelopment of South Bay Plaza, a relocation of the project in Chula Vista, or reduce the size of the proposed project by eliminating the office park. Following the setting down of each alternative is a column for 'Pros' followed by one of 'Cons.' The pros and cons are presented in conclusory fashion, for example, 'more open space' or 'less jobs.' The Attorney General says this kind of information is superficial and hardly usable for deciding whether to approve or disapprove the project. Within the context of the EIR, the report on the redevelopment of the golf course, and the Agency's goal of increasing jobs and the tax revenues this chart sets out sufficient information to show what alternatives were considered and why they were rejected. It should also be noted the only alternative which had been questioned before this appeal was the one concerning the development of South Bay Plaza. Thus, except for South Bay, it is too late for the Association to create new legal and factual issues on appeal by complaining about the other suggested alternatives (State Comp. Ins. Fund v. Maloney, 121 Cal.App.2d 33, 42, 262 P.2d 662). As to South Bay the only criticism was the EIR did 'not begin to take into consideration the potential of a revitalized South Bay Plaza Shopping Center to generate the renewal and upgrading of the entire City Center area. Further, . . . the draft report should have indicated that the South Bay Plaza will actually have [superior access to] Interstate 805 at Plaza Boulevard.' In response to this comment the EIR expanded on the reasons this alternative, redevelopment of South Bay Plaza, was rejected including: no anchor stores have been interested, poor access and image, less practical to develop than Bonita Plaza, no freeway exposure, location not conducive to regional shopping center. The guidelines for implementation [544 P.2d 600] [126 Cal.Rptr. 600] of CEQA with regard to the section on alternatives in the EIR says:
The ninth alternative was to increase open space by undergrounding the parking. This actually is a mitigation measure.
'Alternatives to the Proposed Action: Describe reasonable alternatives to the project, or to the location of the project, which could feasibly attain the basic objectives of the project, and why they were rejected in favor of the ultimate choice. The specific alternative of 'no project' must always be evaluated, along with the impact. Describe alternatives capable of substantially reducing or eliminating any environmentally adverse impacts, even if these alternatives substantially impede the attainment of the project objectives, and are more costly.' (14 Cal.Admin.Code § 15143(d).)
Here, the alternatives section is not as complete or detailed as one might wish. But it demonstrates a good faith effort to explain more fully those aspects which were questioned in the comments of outsiders. In the context of the total report, the pros and cons, although presented in conclusory fashion, show the decision-makers' reasoning. For example when a project which has been reduced in size by eliminating the office part is rejected and the pros include more open space, reduced congestion, reduced pollution, reduced subsidies, reduced service costs and reduced landfill and the cons are less property tax and fewer shops, it is clear the decisionmakers' wish and reasoning is to maximize tax revenue.
The Association attacks the EIR by claiming the lead agency did not follow the correct procedures and did not circulate the draft document to all of the appropriate agencies.
'Prior to completing an environmental impact report, every local agency shall consult with, and obtain comments from, any public agency which has jurisdiction by law with respect to the project, and may consult with any person who has special expertise with respect to any environmental impact involved.' (Pub. Res.Code § 21153.)
The Association claims the EIR should have been submitted to the Chula Vista City School District, the San Diego County Comprehensive Planning Organization (CPO), and the San Diego Coast Regional Commission (CRC). This is the first time these issues have been raised; they are not mentioned in the petition filed below and are not appropriate matters for appeal.
However, even if they were proper, the only question concerns the meaning of 'jurisdiction by law.' 14 California Administrative Code section 15029.6 defines it as:
'(a) . . . the authority of any public agency (1) to grant a permit for or provide funding for the project in question, or (2) to exercise authority over resources which may be affected by the project.
'(b) A city or county will have jurisdiction by law with respect to a project when the city or county is the site of the project, the area in which the major environmental effects will occur, and/or the area in which reside those citizens most directly concerned by any such environmental effects.'
None of these three agencies grants a permit or provides funding for the project; none exercises control over a resource to be affected by the project; none is a 'city' or a 'county'. In addition a letter from CRC indicates they did review the EIR.
The Association argues approval of the project must be set aside because its social and economic value does not, as a matter of law, override the significant environmental objections set out in the EIR. The decision approving or disapproving a project involves a balancing of environmental objectives with social and economic objectives and is one in which the Agency has wide discretion (County of Inyo v. Yorty, 32 Cal.App.3d 795, 809, 108 Cal.Rptr. 377). We look to see if there was an abuse of discretion in that the decision is not supported by substantial evidence[544 P.2d 601] [126 Cal.Rptr. 601] (Pub.Res.Code § 21168.5; People v. County of Kern, 39 Cal.App.3d 830, 840, 115 Cal.Rptr. 67). It should be noted 'the legislative history of the EQA . . . supports the view that environmental values are to be assigned greater weight than the needs of economic growth.' (San Francisco Ecology Center v. City and County of San Francisco, 48 Cal.App.3d 584, 591, 122 Cal.Rptr. 100, 104.) However, the mere fact the EIR indicates there will be adverse impacts does not mandate the project's denial (14 Cal.Admin.Code § 15012). Here there were adverse effects stemming from the project: deteriorated air from increased traffic and stationary sources combined with elimination of vegetation and allegedly insufficient mitigation measures; increased noise to 'unacceptable' levels from increased traffic, decreased vegetation and lack of mitigation measures; deteriorated visual aesthetics as a golf course is replaced by a shopping center; decrease in open space and change in recreational facilities; increased traffic congestion. The social and economic value of the project included: increased property taxes; increased sales taxes; increased transient room taxes; now jobs; a social center and visual landmarks for the residents of the surrounding area; flood and drainage protection. This was substantial evidence to support the Agency's decision to approve the project.
The Association says even if the project can be justified on economic and social grounds, the EIR fails to contain a good faith, reasoned response and factual analysis justifying approval of the project.
It is not necessary for such findings and analysis to be included in the EIR (see, San Francisco Ecology Center v. City and County of San Francisco, supra, 48 Cal.App.3d 584, 596, 122 Cal.Rptr. 100). Since the Agency's approval of the project (and presumably the findings connected with it) comes after the use of the EIR as an informational document which is to aid in reaching that decision, it seems unlikely such findings would ever be found in the EIR. (But see People v. County of Kern, supra, 39 Cal.App.3d 830, 841, 115 Cal.Rptr. 67 .)
However, there is case law requiring a specific response to each comment and objection made to the draft EIR. Here this takes the form of a 30-page addendum which sets out each comment in turn and responds to it. Specific answers in some instances are impossible because they are not known. Notwithstanding this, there appears to be a bona fide attempt to give reasoned responses to the questions, comments and criticisms. (14 Cal.Admin.Code § 15146.)
In addition, it is necessary for the 'public officials (to) set forth in detail the reasons why the economic and social value of the project, in their opinion, overcomes the significant environmental objections raised by the public.' (People v. County of Kern, supra, 39 Cal.App.3d 830, 841, 115 Cal.Rptr. 67, 75.) Here the Redevelopment Agency set down the following findings in the ordinance they passed approving the project.
'. . .
'. . . the Redevelopment Agency . . . has determined the area is a blighted area and it is detrimental and a menace to the safety, health, and welfare of the inhabitants and users thereof and of the locality at large and of the people of the State because of deteriorated conditions, faulty planning and inadequate public improvements, depreciated values and tax receipts, and lack of full utilization of area . . .
'NOW, THEREFORE, BE IT ORDAINED by the Council of the City of National City as follows:
'SECTION 1: It is hereby found and determined that the Project area is a blighted area, within the meaning of the California Community Redevelopment Law, and that redevelopment of same is necessary to effectuate the public purposes declared in said Community Redevelopment Law. The carrying out of [544 P.2d 602] [126 Cal.Rptr. 602] the Redevelopment Plan would promote the public peace, health, safety, and welfare of the community and would effectuate the purposes and policy of the California Community Redevelopment Law and qualifies as an eligible Project area under the California Community Redevelopment Law.
'. . .
'SECTION 3: It is hereby found and determined that the objectives of the Redevelopment Plan cannot be achieved through more extensive rehabilitation of the Project area. The Redevelopment Plan would redevelop the area in conformity with the California Community Redevelopment Law and in the interests of the public peace, health, safety and welfare.'
The findings are framed in terms of the Redevelopment Law rather than CEQA and the EIR. However, this does not detract from their validity.
The denial of the writ is affirmed.
AULT and COLOGNE, JJ., concur.
[*] Opinion that appeared on pages 238 to 251 was modified and reprinted at post, page 1030. Opinions that appeared on pages 252 to 285 were deleted due to hearings granted.
'It is found and declared that there exist in many communities blighted areas which constitute either social or economic liabilities, or both, requiring redevelopment in the interest of the health, safety, and general welfare of the people of such communities and of the State. These blighted areas are characterized by one or more of the conditions set forth in sections 33031 to 33034, inclusive.' (Emphasis ours.)