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98 Cal.Rptr.2d
334, 00 Cal. Daily Op. Serv. 6141 FRIENDS
OF MAMMOTH et al., Plaintiffs and Appellants, v. TOWN
OF MAMMOTH LAKES REDEVELOPMENT AGENCY et al., Defendants and Respondents; MAMMOTH
MOUNTAIN SKI AREA et al., Interveners and Respondents. FRIENDS
OF MAMMOTH et al., Plaintiffs and Appellants, v. TOWN
OF MAMMOTH LAKES et al., Defendants and Respondents; MAMMOTH MOUNTAIN SKI AREA
et al., Interveners and Respondents. No.
C029659., No. C031043. Court
of Appeal, Third District, California. July
21, 2000. SUMMARY A
town and its redevelopment agency began the process established by the
Community Redevelopment Law (Health & Saf. Code, 33000 et seq.) to adopt a
redevelopment plan, which included the preparation of an environmental impact
report (EIR) pursuant to the California Environmental Quality Act (CEQA) (Pub.
Resources Code, 21000 et seq.). The town certified the EIR and approved the
redevelopment plan, which authorized 72 separate development projects.
Interested parties brought two actions against the town: a mandamus action, in
which plaintiffs claimed the EIR failed to comply with the requirements of
CEQA; and, a validation action, in which they claimed the redevelopment plan
did not comply with the Community Redevelopment Law. The trial court determined
both the EIR and the redevelopment plan complied with governing law and entered
judgments accordingly. (Superior Court of Mono County, Nos. 12308 and 12334, N.
Edward Denton, Judge.) The
Court of Appeal reversed the judgments, directing the trial court to issue the
writ of mandate to plaintiffs in their CEQA action and to enter judgment in
favor of plaintiffs in the redevelopment action. The court held that the EIR
violated CEQA by failing to analyze the indirect or secondary environmental impacts
likely to be caused by each of the 72 proposed projects included in the
redevelopment plan. By defining a redevelopment plan and all of its proposed
projects as a single project under CEQA, the *512 Legislature implied that as much environmental review as
possible should occur at the outset of the redevelopment process, with
subsequent review limited to situations where significant changes or new
information on the plan's constituent projects becomes available (Pub.
Resources Code, 21090, 21166). The town's failure to analyze the impacts caused
by each proposed project, to the extent information was known or reasonably
could have been known about each project, constituted a failure to proceed in
the manner required by CEQA. The court also held that no substantial evidence
existed in the record to justify a finding that the project area was
characterized by any of the statutory conditions that caused blight, so as to
qualify the area as blighted under the Community Redevelopment Law. The
evidence did not support findings that the project area was characterized by
unsafe or unhealthy buildings, factors that prevented or substantially hindered
the economically viable use of buildings or lots, or by adjacent or nearby
incompatible uses that prevented economic development (Health & Saf. Code,
33031, subd. (a)(1)-(3)). (Opinion by Nicholson, J., with Blease, Acting P. J.,
and Sims, J., concurring.) COUNSEL Kane,
Ballmer & Berkman, Murray O. Kane, R. Bruce Tepper, Jr., and Stephanie R.
Scher for Plaintiffs and Appellants in Nos. C029659 and C031043. McDonough,
Holland & Allen and T. Brent Hawkins for the Counties of Del Norte,
Humboldt, Kern, Lassen, Los Angeles, Madera, Merced, Nevada, Riverside, San
Benito, Santa Clara, Santa Cruz, Tulare and Yolo as Amici Curiae on behalf of
Plaintiffs and Appellants in No. C031043. Peter
E. Tracy, Town Attorney; Stephen M. Place; Sabo & Green, Charles R. Green,
James C. Fedalen and William P. Medlen for Defendants and Respondents in Nos.
C029659 and C031043. Landels,
Ripley & Diamond, Michael H. Zischke, Ted Stevens for the Cities of Albany,
Bishop, Garden Grove, Hayward, Piedmont, San Juan Capistrano, Sierra Madre and
Temple City as Amici Curiae on behalf of Defendants and Respondents in No.
C029659. Carol
A. Korade for City of Alameda as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Sonia
R. Carvalho for Cities of Azusa and Claremont as Amici Curiae on behalf of
Defendants and Respondents in No. C029659. Bart
J. Thiltgen for City of Bakersfield as Amicus Curiae on behalf of Defendants
and Respondents in No. C029659. Richard
M. Manning for City of Capitola as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Ronald
R. Ball for City of Carlsbad as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Michael
G. Colantuono for City of Cudahy as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Alan
J. Peake for City of Delano as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. *518 Michael
Jenkins for the Cities of Diamond Bar and West Hollywood as Amici Curiae on
behalf of Defendants and Respondents in No. C029659. Brad
L. Fuller for City of Eureka as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Harvey
E. Levine for City of Fremont as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Linda
A. Callon for City of Gilroy as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. John
R. Harper for City of Grand Terrace as Amicus Curiae on behalf of Defendants
and Respondents in No. C029659. Francis
R. Ruggieri for City of Gustine as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. David
R. McEwen for City of Lancaster as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Charles
J. Williams for City of Lafayette as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Thomas
R. Curry for City of Livermore as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Randall
A. Hays for City of Lodi as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Robert
E. Shannon for City of Long Beach as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Joseph
A. Soldani for City of Madera as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Steven
F. Nord for City of Merced as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Anthony
Canzoneri for City of Monterey Park as Amicus Curiae on behalf of Defendants
and Respondents in No. C029659. Robert
D. Herrick for City of Moreno Valley as Amicus Curiae on behalf of Defendants
and Respondents in No. C029659. *519 William
B. Conners for City of Monterey as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Michael
D. Martello for City of Mountain View as Amicus Curiae on behalf of Defendants
and Respondents in No. C029659. John
R. Harper for the Cities of Murrieta and Norco as Amici Curiae on behalf of
Defendants and Respondents in No. C029659. Jayne
W. Williams for City of Oakland as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. David
J. Erwin for City of Palm Desert as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Scott
Nichols for the Cities of Pico Rivera and Walnut as Amici Curiae on behalf of
Defendants and Respondents in No. C029659. Carol
B. Tanenbaum for City of Placentia as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Stephen
M. Ecais for City of Poway as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. W.
Leonard Wingate for City of Redding as Amicus Curiae on behalf of Defendants
and Respondents in No. C029659. Daniel
J. McHugh for City of Redlands as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Robert
A. Owen for City of Rialto as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Hadden
Roth for Town of Ross and City of San Anselmo as Amici Curiae on behalf of
Defendants and Respondents in No. C029659. Robert
J. Lanzone for City of San Carlos as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Brian
M. Libow for City of San Pablo as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Phillip
H. Bomney for City of Santa Paula as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. *520 Rene
A. Chouteau for City of Santa Rosa as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Scott
S. Smith for City of Santee as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Valerie
J. Armento for City of Sunnyvale as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Ann
R. Danforth for Town of Tiburon as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Debra
E. Corbet for City of Tracy as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Charles
O. Lamoree for City of Vacaville as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Henry
R. Kraft for City of Victorville as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Larry
G. Bacon for City of Yreka as Amicus Curiae on behalf of Defendants and
Respondents in No. C029659. Naomi
Silvergleid for Town of Yucca Valley as Amicus Curiae on behalf of Defendants
and Respondents in No. C029659. Rollston,
Henderson, Rasmussen & Crabb and J. Dennis Crabb for Town of Truckee as
Amicus Curiae on behalf of Defendants and Respondents in No. C031043. Michael
Jenkins; Richards, Watson & Gershon, T. Peter Pierce and Steven R. Orr for
the Cities of Alameda, Albany, Avalon, Bakersfield, Bishop, Carson, Cerritos,
Delano, Diamond Bar, Dinuba, Hollister, Huron, Long Beach, Los Altos, Monterey
Park, Mountain View, Oceanside, Orange Cove, Pico Rivera, Piedmont, Ripon,
Ross, San Anselmo, San Bruno, San Buenaventura, Seaside, Walnut and Wasco, the
Barstow Redevelopment Agency and the Bishop Redevelopment Agency as Amici
Curiae on behalf of Defendants and Respondents in No. C031043. David
S. Baumwohl for Interveners and Respondents Mammoth Mountain Ski Area and
Mammoth Mountain Land Corporation in Nos. C029659 and C031043. *521 Liebersbach,
Mohun, Carney & Reed, R. Mark Carney and James S. Reed for Interveners and
Respondents Intrawest Mammoth Corporation in Nos. C029659 and C031043. NICHOLSON,
J. In
this consolidated appeal, we address challenges to a redevelopment plan adopted
by the Town of Mammoth Lakes and the environmental analysis performed on that
plan. The trial court determined both the environmental analysis and the
redevelopment plan complied with governing law. We disagree, and reverse both
the trial court's judgment upholding the environmental analysis and the trial
court's judgment on the validity of the redevelopment plan. Our decision also
nullifies the trial court's denial of motions to tax costs in the two actions
below. Facts In
March of 1996, defendants Town of Mammoth Lakes and Town of Mammoth Lakes
Redevelopment Agency (Agency; collectively, the Town) began the process
established by the Community Redevelopment Law (Health & Saf. Code, 33000
et seq.) to adopt a redevelopment plan. Part of this process included the
preparation of an environmental impact report (EIR) pursuant to the California
Environmental Quality Act (CEQA) (Pub. Resources Code, 21000 et seq.). On
June 18, 1997, both the Agency's governing board of directors and the town
council certified the EIR. The Agency also approved the proposed redevelopment
plan and its accompanying report (the Final Report) and forwarded the documents
to the town council. On July 2, 1997, the town council adopted Ordinance No.
97-08 approving the redevelopment plan. The
redevelopment plan applied to a project area consisting of three areas of land
totaling over 1,100 acres: a main area of about 907 acres; subarea 1 consisting
of a 30-acre industrial park; and subarea 2 consisting of the approximately
200-acre airport (collectively, the Project Area). Subareas 1 and 2 were not contiguous
to the main area or to each other. The
main area contains the Town's traditional downtown commercial area as well as
approximately 1,200 units of housing, about half of which are condominiums. It
also encompasses a site designated for development of a community college and
portions of three partially developed recreational resort areas: Lodestar at
Mammoth, Juniper Ridge and North Village. The college site, the resort areas
and the airport were the subjects of significant *522 proposed development and corresponding environmental review
approved before the redevelopment plan was adopted. Most of that proposed
development had not occurred, however, by the time the Town adopted the
redevelopment plan. Plaintiffs
Friends of Mammoth, Andrea M. Lawrence, Patricia Savage and Pat Eckart
(collectively plaintiffs) filed two actions challenging the Town's adoption of
the redevelopment plan. The first (case No. C029659 on appeal) was a petition
for writ of mandate against the Agency and the Town claiming the redevelopment
plan EIR failed to comply with the requirements of CEQA. The second (case No.
C031043 on appeal) was a validation action under Code of Civil Procedure
section 860 et seq. against the Town, the Agency, and all persons interested in
the adoption of the redevelopment plan, claiming the redevelopment plan did not
comply with the requirements of the Community Redevelopment Law. By
judgment dated May 5, 1998, the trial court denied the CEQA mandate petition
and awarded costs to the Town. By judgment dated October 21, 1998, the trial
court also determined the redevelopment plan was valid, ordered plaintiffs take
nothing by their complaint, and awarded costs to the Town. Plaintiffs filed
motions to tax costs in each case, both of which were denied in full by the
trial court. Plaintiffs timely appealed each judgment. We consolidated the
appeals on plaintiffs' motion. [FN1]
We will provide additional facts as required. [FN2] *523 FN1 Also appearing in both appeals are interveners Mammoth Mountain Ski Area, Mammoth Mountain Land Corporation and Intrawest Mammoth Corporation. The following cities and towns appear in case No. C029659 in support of defendants: Albany, Alameda, Azusa, Bakersfield, Bishop, Capitola, Carlsbad, Claremont, Cudahy, Delano, Diamond Bar, Eureka, Fremont, Garden Grove, Gilroy, Grand Terrace, Gustine, Hayward, Lancaster, Lafayette, Livermore, Lodi, Long Beach, Madera, Merced, Monterey, Monterey Park, Moreno Valley, Mountain View, Murrieta, Norco, Oakland, Palm Desert, Pico Rivera, Piedmont, Placentia, Poway, Redding, Redlands, Rialto, Ross, San Anselmo, San Carlos, San Juan Capistrano, San Pablo, Santa Paula, Santa Rosa, Santee, Sierra Madre, Sunnyvale, Temple City, Tiburon, Tracy, Vacaville, Victorville, Walnut, West Hollywood, Yreka, and Yucca Valley. The following counties appear in case No. C031043 in support of plaintiffs: Del Norte, Humboldt, Kern, Lassen, Los Angeles, Madera, Merced, Nevada, Riverside, San Benito, Santa Clara, Santa Cruz, Tulare, and Yolo (collectively Amicus Counties). The following cites, towns and redevelopment agencies appear in case No. C031043 in support of defendants: Alameda, Albany, Avalon, Bakersfield, Barstow Redevelopment Agency, Bishop, Bishop Redevelopment Agency, Carson, Cerritos, Delano, Diamond Bar, Dinuba, Hollister, Huron, Long Beach, Los Altos, Monterey Park, Mountain View, Oceanside, Orange Cove, Pico Rivera, Piedmont, Ripon, Ross, San Anselmo, San Bruno, San Buenaventura, Seaside, Truckee, Walnut, and Wasco. FN2 Plaintiffs
and Amicus Counties submitted separate requests to take judicial notice of
various items. Pursuant to Evidence Code sections 451, 452, and 459, and our
ruling in People v. Patterson (1999) 72 Cal.App.4th 438, 442-445 [84
Cal.Rptr.2d 870], we grant plaintiffs' request in its entirety, and we grant
Amicus Counties' request except as to items 1.e., 1.h., 1.k., 1.l., 1.m., and
1.o. CEQA Appeal
(case No. C029659) I. Standard of
Review We
review the Town's decision certifying the redevelopment plan EIR to determine
"whether there was a prejudicial abuse of discretion. Abuse of discretion
is established if the agency has not proceeded in a manner required by law or
if the determination or decision is not supported by substantial
evidence." (Pub. Resources Code, 21168.5; see also Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 567-568 [38 Cal.Rptr.2d
139, 888 P.2d 1268].) "On
appeal, our task is the same as the trial court's, 'that is, to review the
agency's actions to determine whether the agency complied with the procedures
required by law.' [Citation.] The trial court's conclusions are not binding on
us." (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 113-114
[62 Cal.Rptr.2d 612].) Nevertheless, the EIR is presumed adequate, and plaintiffs
bear the burden of proving otherwise. (Pub. Resources Code, 21167.3; State of
California v. Superior Court (1990) 222 Cal.App.3d 1416, 1419 [272 Cal.Rptr.
472].) II. Adequacy
of EIR's Analysis of Proposed Redevelopment Projects Plaintiffs
claim the EIR violated CEQA, and particularly Public Resources Code section
21090, by failing to analyze the indirect or secondary environmental impacts
likely to be caused by each of the proposed redevelopment projects included in
the redevelopment plan. For the reasons which follow, we agree. If
a redevelopment agency desires to use its funds to purchase land or to
construct public buildings, facilities or other improvements which will assist
in eliminating blight, Health and Safety Code section 33445 requires the redevelopment
agency to provide for the "acquisition of property and installation or
construction of each facility" in the redevelopment plan. (Health &
Saf. Code, 33445, subd. (b), italics added.) The redevelopment agency *524 must also list in its Final Report
the "specific projects then proposed by the agency" to eliminate
blight. (Health & Saf. Code, 33352, subd. (a).) Complying
with these requirements, the Town's redevelopment plan "specifically
authorized" the Agency "to provide or participate in providing"
at least 72 separate and identified public improvements and facilities. [FN3] The projects read like a
municipal wish list. They include an overhead gondola; an expanded community
library and meeting hall; a town amphitheater; a 300-seat performing arts
theater; a school gymnasium; two 2,000-square-foot childcare facilities; a
combined fire, police and emergency operations center; an aquatics center,
including an 8-lane 25-yard pool; a conference and ice skating arena; a 20,000-
square-foot recreation center; airport runway and taxiway extensions to serve
commercial jet aircraft; an expanded airport terminal; and over 2,800 parking
spaces in new underground and above-ground parking structures and lots. FN3 The
redevelopment plan EIR lists 72 development projects, but the redevelopment
plan itself lists 73 separate projects and uses. Further, the Final Report
lists 81 separate projects. In their briefs, the parties refer to the proposals
as 72, and for the sake of consistency, so do we. The
projects include constructing approximately 400 new housing units; upgrading
all Town utilities; undergrounding all overhead utility lines; developing a
central propane distribution system for commercial areas; installing fiber
optic cable throughout the Project Area; developing a geothermal heating system
for commercial and public uses; upgrading sewer lines; improving storm drains;
and installing various road and pedestrian improvements. The projects also
include establishing loan programs to assist in rehabilitating older hotels,
improving building facades, and recruiting and retaining businesses. They also
propose acquiring various parcels of real property to assist in developing
commercial and tourist-oriented uses, including the relocation of certain
existing gas stations. The
redevelopment plan states "changes in circumstances or designs may alter
the location of any of the facilities described above, or require other related
facilities." The plan is valid for 30 years. In
the Final Report, the Agency briefly described each proposed project, explained
how each would address blight, and estimated each project's cost. The Agency
projected the total cost of the projects would exceed $136.4 million. The
Agency also prepared a "conceptual" map depicting where most of the
projects would be located. *525 The
redevelopment plan EIR was prepared as a "program EIR" pursuant to
Guidelines section 15168. [FN4]
(3)(See fn. 4.), (2b) The redevelopment plan EIR did not analyze direct or
indirect environmental impacts potentially caused by each of the 72 development
proposals. The EIR states: "Due to the fact that specific characteristics
of individual projects which may result from this Plan are unknown at this
time, potential environmental impacts are addressed in general terms." The
redevelopment plan EIR thus analyzed primarily the cumulative impacts that
could foreseeably occur if all of the proposed projects were actually
developed. Much of this analysis was contained in the Town's general plan and
general plan EIR as well as other previously prepared planning documents and
supporting environmental reviews and was incorporated into the redevelopment
plan EIR by reference. FN4
"Guidelines" refers to the state CEQA Guidelines, certified and
adopted by the Secretary of the California Resources Agency pursuant to Public
Resources Code section 21083 and codified at Code of Regulations, title 14,
chapter 3 (Cal. Code Regs., tit. 14, 15000-15387.) Although our Supreme Court
has not yet decided whether the Guidelines are regulatory mandates or only
interpretive aids, it has instructed us to "afford great weight to the
Guidelines except when a provision is clearly unauthorized or erroneous under
CEQA." (Laurel Heights Improvement Assn. v. Regents of University of
California (1988) 47 Cal.3d 376, 391, fn. 2 [253 Cal.Rptr. 426, 764 P.2d 278].) Table
3-2 of the EIR, "Proposed Uses and Actions," lists all of the 72
development projects and their locations, provides a brief description of each
project, and explains how each alleviates blight. Exhibit 3-4 of the EIR is the
same map noting the location of the proposed projects as that included in the
Final Report. The EIR further explains the map does not include "projects
which are program oriented or are district-wide ...." The
EIR states "[i]ndividual improvement and redevelopment/development
projects would occur in incremental phases over time, based largely on economic
consideration, infrastructure improvements, market demand and other planning
considerations. The phasing and exact details of each development would be
evaluated by the Town of Mammoth Lakes Redevelopment Agency on a case-by-case
basis. [] ... All [of the 72 development projects] may be subject to additional
environmental review on an individual Redevelopment Plan basis, in accordance
with the provisions of Section 15168 of CEQA [Guidelines], as determined
necessary by the Town of Mammoth Lakes." At
trial, plaintiffs argued the Town violated CEQA by preparing an "ordinary
' program EIR' " for the redevelopment plan. Because Public Resources Code
section 21090 restricted subsequent environmental review of development
activities performed pursuant to the redevelopment plan but *526 the regulations governing program
EIR's did not, plaintiffs argued, the Town was obligated to gather and analyze
in the EIR as much information about the 72 development proposals as possible
instead of deferring such specific review to later. The
trial court rejected plaintiffs' argument. It reasoned the statutory and
regulatory scheme equated redevelopment plan EIR's with program EIR's and
required the Town to prepare a program EIR. That scheme also did not foreclose
future environmental review to the extent plaintiffs feared. The 72 development
proposals were just proposals, and CEQA would require the Town to perform
additional environmental review should the proposals actually come to fruition
and involve new information. Before
us, plaintiffs claim the trial court misstated their argument. Because the Town
chose to include the 72 development proposals in the redevelopment plan,
plaintiffs assert, Public Resources Code section 21090 required the Town to
analyze each of the proposals in the EIR (1) to the same extent CEQA requires
analysis of impacts normally associated with general plans, and (2) based on
all information available to the Town at that time concerning each of the 72
proposals. The Town was not free, they argue, to defer this analysis merely
because it prepared a program EIR. Plaintiffs believe under Public Resources
Code sections 21090 and 21166 the information available when the redevelopment
plan EIR was certified could preclude further environmental review of the 72
development proposals' direct and indirect impacts when the proposed projects
are actually developed. To
understand the significance of Public Resources Code section 21090 and
determine its scope, we first review how CEQA defines a "project" and
accommodates projects of various scope and size by providing for different
types of EIR's. We then review the level of detail and analysis CEQA requires
of EIR's. We will then apply the principles gleaned from this review to
determine the level of review CEQA required of the Town's redevelopment plan
EIR. To
the extent any statutory construction is necessary, we interpret Public Resources
Code section 21090 according to the traditional rules of statutory
construction. (4) Although "the Legislature intended [CEQA] to be
interpreted in such manner as to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language"
(Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 [104
Cal.Rptr. 761, 502 P.2d 1049], disapproved on other grounds by Kowis v. Howard *527 (1992) 3 Cal.4th 888, 896-897 [12
Cal.Rptr.2d 728, 838 P.2d 250]), CEQA itself states "[i]t is the intent of
the Legislature that courts, consistent with generally accepted rules of
statutory interpretation, shall not interpret [CEQA] or the [Guidelines] in a
manner which imposes procedural or substantive requirements beyond those
explicitly stated in [CEQA] or in the [Guidelines]." (Pub. Resources Code,
21083.1.) In
general, CEQA requires a government agency to prepare an EIR before approving
or carrying out any discretionary "project" the agency determines may
have a significant effect on the environment. (Pub. Resources Code, 21080,
subds. (a), (d).) A "project" is any "activity which may cause
either a direct physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment, and which is [among other
possibilities] [a]n activity directly undertaken by any public agency."
(Pub. Resources Code, 21065; see also Guidelines, 15378, subd. (a).) [FN5] FN5 "(1) A
direct physical change in the environment is a physical change in the environment
which is caused by and immediately related to the project. Examples of direct
physical changes in the environment are the dust, noise, and traffic of heavy
equipment that would result from construction of a sewage treatment plant and
possible odors from operation of the plant. "(2) An indirect physical change in the environment is a physical change in the environment which is not immediately related to the project, but which is caused indirectly by the project. If a direct physical change in the environment in turn causes another change in the environment, then the other change is an indirect physical change in the environment. For example, the construction of a new sewage treatment plant may facilitate population growth in the service area due to the increase in sewage treatment capacity and may lead to an increase in air pollution. "(3) An indirect physical change is to be considered only if that change is a reasonably foreseeable impact which may be caused by the project. A change which is speculative or unlikely to occur is not reasonably foreseeable." (Guidelines, 15064, subd. (d), italics added.) CEQA
applies when a public agency proposes to "approve" a project. (Pub.
Resources Code, 21080, subd (a); Guidelines, 15352.) An approval is "the
decision by a public agency which commits the agency to a definite course of
action in regard to a project intended to be carried out by any person."
(Guidelines, 15352, subd. (a).) CEQA
applies to many types of projects, ranging from the approval of a single use
permit for construction of a building to the approval of a local general plan.
(Guidelines, 15378, subd. (a)(1).) To accommodate the different types of
projects to which it applies, CEQA provides different types of EIRs and
accompanying procedures that can be used depending upon the type, specificity,
and known detail of the proposed project under review. The
project EIR is the most common and detailed type of EIR. It "examines the
environmental impacts of a specific development project. This type *528 of EIR should focus primarily on
the changes in the environment that would result from the development project.
The EIR shall examine all phases of the project including planning,
construction, and operation." (Guidelines, 15161.) Once
a project EIR has been certified by the lead agency, Public Resources Code
section 21166 prohibits additional environmental review on that project unless
at least one of three events occurs: "(a) Substantial changes are proposed
in the project which will require major revisions of the environmental impact
report. [] (b) Substantial changes occur with respect to the circumstances
under which the project is being undertaken which will require major revisions
in the environmental impact report. [] (c) New information, which was not known
and could not have been known at the time the environmental impact report was
certified as complete, becomes available." (Pub. Resources Code, 21166;
see also Guidelines, 15162, 15163.) In
contrast, for projects consisting of a policy, plan, program or ordinance, CEQA
encourages agencies to "tier" EIR's and provides a number of ways to
do so. Tiering is "the coverage of general matters and environmental
effects in an environmental impact report prepared for a policy, plan, program
or ordinance followed by narrower or site-specific environmental impact reports
which incorporate by reference the discussion in any prior environmental impact
report and which concentrate on the environmental effects which (a) are capable
of being mitigated, or (b) were not analyzed as significant effects on the
environment in the prior environmental impact report." (Pub. Resources
Code, 21068.5.) The
standard for determining whether to engage in additional CEQA review for
subsequent projects under a tiered EIR is more relaxed than the prohibition
against additional review imposed by Public Resources Code section 21166 for
project EIR's. For a subsequent project that is consistent with the program or
plan analyzed in a first tier EIR, CEQA requires a lead agency to prepare an
initial study to determine if the later project may cause significant
environmental effects not examined in the first tier EIR. If the later project
will cause such effects, the lead agency must prepare another EIR. (Pub.
Resources Code, 21094, subds. (a), (c).) [FN6] FN6 This second
tier EIR need only analyze those significant effects of the later project which
were either not mitigated or avoided as a result of the first tier EIR or were
not examined at a sufficient level of detail in the first tier EIR to enable
those effects to be mitigated or avoided by site-specific revisions, the
imposition of conditions, or by other means in connection with the later
approval. (Pub. Resources Code, 21094; Guidelines, 15152.) If
the subsequent project is not consistent with the program or plan, it is
treated as a new project and must be fully analyzed in a projector another *529 tiered EIR if it may have a
significant effect on the environment. If the subsequent project is actually
the same project reviewed in the first tier EIR, it cannot be subject to
further environmental review unless the requirements of Public Resources Code
section 21166 are satisfied. (Pub. Resources Code, 21094, subd. (b); Sierra
Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1319-1321 [8 Cal.Rptr.2d
473].) Now
we come to the application of CEQA to a proposed redevelopment plan. Local
government agencies establish redevelopment agencies and adopt redevelopment
plans to improve, rehabilitate, and redevelop blighted areas. (Health &
Saf. Code, 33131.) "As the fundamental document governing a redevelopment
agency's activities, a redevelopment plan basically acts as the agency's
charter. Adopted by the local legislative body (a city council or county board
of supervisors), the plan establishes long-term planning goals as well as
implementation policies and procedures for the redevelopment of a designated
project area. It also serves as a financing plan by authorizing the agency's
use of particular financing tools to implement projects and polices. A
redevelopment plan may also establish certain limitations on the authority of a
redevelopment agency to conduct activities within a project area. A
redevelopment plan is typically a very general document, providing the agency
with great flexibility." (Beatty et al., Redevelopment in Cal. (2d ed.
1995) at p. 25.) "By
exercising certain of its powers to implement redevelopment, a redevelopment
agency may induce private investment in an area. The success of any
redevelopment project is dependent upon whether private lenders, developers,
owners, and tenants can be persuaded to participate in the process. Thus, a
redevelopment agency is unique among public entities since in order to achieve
its objective of eliminating blight it must rely upon cooperation with the
private sector. Redevelopment is also a process which occurs over a period of
years. These realities dictate that a redevelopment plan be written in terms
that enhance a redevelopment agency's ability to respond to market conditions,
development opportunities and the desires and abilities of owners and tenants.
Such a plan then cannot always outline in detail each project that a
redevelopment agency will undertake during the life of the plan." (County
of Santa Cruz v. City of Watsonville (1985) 177 Cal.App.3d 831, 841 [223
Cal.Rptr. 272].) The
redevelopment plan must conform to the local agency's general plan, including
the general plan's land use and housing elements. (Health & Saf. Code,
33367, subd. (d)(4).) As stated earlier, a redevelopment plan must name each
public facility the redevelopment agency desires to provide or *530 land it seeks to acquire to help
alleviate blight. (Health & Saf. Code, 33445.) It must also contain the
approximate amount of open space to be provided; limitations on the type, size,
height, number, and proposed use of buildings; the approximate number of
dwelling units to be provided, and a description of property to be devoted to
public purposes and the nature of such purposes. (Health & Saf. Code, 33333,
subds. (a)-(d).) The
Community Redevelopment Law authorizes redevelopment plans to remain valid for
many years. If the redevelopment plan authorizes the redevelopment agency to
use tax increment financing, as is the case here, the duration of the redevelopment
plan may run as long as, but cannot exceed, 30 years. (Health & Saf. Code,
33333.2, subd. (a)(2).) Indebtedness to be repaid out of tax increments cannot
be established beyond 20 years from the plan's adoption and must be repaid
within 45 years of the plan's adoption. (Health & Saf. Code, 33333.2, subd.
(a)(1), (3).) Also, any eminent domain proceedings to acquire property within
the redevelopment project area must be commenced within 12 years of the plan's
adoption. (Health & Saf. Code, 33333.2, subd. (a)(4).) Based
on the above, a redevelopment plan at first blush would appear to be an ideal
candidate for a first tier EIR, with all projects implemented pursuant to the
redevelopment plan being subject to their own additional and project-specific
EIR's. By adopting Public Resources Code section 21090, however, the
Legislature determined a redevelopment plan EIR and all public and private
projects implemented pursuant to that plan should be treated as a single
project for purposes of CEQA. The statute reads in its entirety: "For all
purposes of this division [CEQA], all public and private activities or
undertakings pursuant to, or in furtherance of, a redevelopment plan shall be
deemed to be a single project. However, further environmental review of any
public or private activity or undertaking pursuant to, or in furtherance of, a
redevelopment plan shall be conducted if any of the events specified in [Public
Resources Code] Section 21166 have occurred." Guidelines
section 15180 implements Public Resources Code section 21090 as follows:
"(a) All public and private activities or undertakings pursuant to or in
furtherance of a redevelopment plan constitute a single project, which shall be
deemed approved at the time of adoption of the redevelopment plan by the
legislative body.... [] (b) An EIR on a redevelopment plan shall be treated as
a program EIR with no subsequent EIRs required for individual components of the
redevelopment plan unless a subsequent EIR or a supplement to an EIR would be
required by [Guidelines] Section 15162 or 15163." (Italics added.)
(Guidelines 15162 and *531 15163
implement Pub. Resources Code, 21166's prohibition of additional environmental
review after a project EIR has been certified unless significant change occurs
or significant new information develops.) The
program EIR referenced in Guideline section 15180 is a type of tiered EIR
authorized by the Guidelines but not by the statute. (Al Larson Boat Shop, Inc.
v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 740 [22 Cal.Rptr.2d
618].) "A program EIR is an EIR which may be prepared on a series of
actions that can be characterized as one large project and are related ... []
[i]n connection with issuance of rules, regulations, plans, or other general
criteria to govern the conduct of a continuing program ...." (Guidelines,
15168, subd. (a)(3).) A
program EIR is designed to "(1) Provide an occasion for a more exhaustive
consideration of effects and alternatives than would be practical in an EIR on
an individual action, [] (2) Ensure consideration of cumulative impacts that
might be slighted in a case-by-case analysis, [] (3) Avoid duplicative
reconsideration of basic policy considerations, [] (4) Allow the lead agency to
consider broad policy alternatives and program wide mitigation measures at an
early time when the agency has greater flexibility to deal with basic problems
or cumulative impacts, [and] [] (5) Allow reduction in paperwork."
(Guidelines, 15168, subd. (b).) The
Legislature's transformation of a redevelopment plan EIR from what would
otherwise be a first tier EIR into a project/program EIR is not without
significance. Were it not for Public Resources Code section 21090 and
Guidelines section 15180, all activities and subsequent development projects
approved pursuant to a redevelopment plan would likely be treated as separate
projects and be subject to environmental review for any potentially significant
environmental impacts not previously analyzed in the redevelopment plan EIR.
(Pub. Resources Code, 21094.) Because
of Public Resources Code section 21090 and Guidelines section 15180, further
environmental review of any development project implemented pursuant to or in
furtherance of a redevelopment plan is prohibited unless significant changes
occur in the project or the circumstances surrounding the project, or if
significant new information which was not known and could not have been known
when the redevelopment plan EIR was certified becomes available. (See Long
Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency (1986) 188
Cal.App.3d 249, 266 [232 Cal.Rptr. 772] [additional EIR not required where
redevelopment project did not cause significant changes to project as analyzed
in previous redevelopment EIR].) *532 It
is this fear that the 72 proposed projects will avoid detailed CEQA review as a
result of the operation of Public Resources Code section 21090 that forms the
crux of plaintiffs' petition. They claim enough information was known (e.g.,
each project's proposed use and location), or could have been known, when the
EIR was certified to prevent future environmental analysis at least of these
aspects of the development proposals when the proposals are actually developed.
They thus argue section 21090 required the Town "to gather every bit of
information known at the time of [the] Redevelopment Plan adoption about the 72
proposed projects which are included in the Redevelopment Plan [and] to conduct
environmental analysis of those Development Proposals to the extent [of] the
information then available ...." They
claim the analysis was not to be a detailed, site-specific analysis. It was,
however, to be governed by the information available at the time of the
redevelopment plan's adoption, then "tempered" by focusing on each
proposal's secondary effects similar to those discussed in an EIR for a general
plan. Plaintiffs further cite specific instances where additional information
about a few of the proposed projects was allegedly available to the Town, but
the Town did not obtain the data for use in the EIR. The
language of Public Resources Code section 21090 does not expressly increase the
level of analysis required in a redevelopment plan EIR above that required of
other types of program EIR's. However, by defining a redevelopment plan and all
of its proposed projects as a single project, the Legislature implied that as
much environmental review as possible should occur at the outset of the
redevelopment process, with subsequent review limited to situations where
significant changes or "new information" on the plan's constituent
projects becomes available. The
Town and its supporting amici curiae mischaracterize the redevelopment plan EIR
as a first tier EIR. As shown above, first tier EIR's are not subject to the
ban on subsequent review imposed by Public Resources Code section 21166. Thus,
courts have allowed first tier EIR's to defer detailed analysis to subsequent
project EIR's. (See Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners,
supra, 18 Cal.App.4th at pp. 746-747; Guidelines, 15152, subd. (c).) Here,
to the extent specific information is now known about one of the proposed 72
development projects, Public Resources Code section 21090 will prevent a
project EIR from analyzing impacts derived from that aspect when the project is
subsequently developed. While the redevelopment plan *533 EIR may be a type of tiered EIR (Guidelines, 15152, subd.
(h)), it does not enjoy all of the flexibility accorded first tier EIR's. The
Town claims Guidelines section 15168, subdivision (c)(1), requires the Town to
perform additional environmental review of the development projects for impacts
not reviewed in the redevelopment plan EIR. This regulation, part of the
Guidelines governing program EIR's, states: "If a later activity would
have effects that were not examined in the program EIR, a new initial study
would need to be prepared leading to either an EIR or a negative
declaration." This regulation is inconsistent with the language and effect
of Public Resources Code sections 21090 and 21166, and thus cannot apply to
redevelopment plan EIR's. Under
Public Resources Code section 21166 and its implementing regulation, Guidelines
section 15162, a lead agency is not required to use an initial study to
determine the effect of new information or changed circumstances. Also, if an
agency determines the new information or changed circumstances do not rise to
the level of significance requiring an additional EIR, the agency need not take
any further action. (Guidelines, 15162, subd. (b).) Furthermore, if the information
was known, or could have been known, when the earlier EIR was certified, a new
EIR cannot be prepared even if the information is significant. Guidelines
section 15168, subdivision (c)(1), if it applied to a redevelopment plan EIR,
would require an agency to prepare an initial study and a negative declaration
for an impact that did not trigger additional review under Public Resources
Code section 21166. It would also require an agency to prepare an EIR for an
impact not previously reviewed but which was ascertained from information
previously known, contrary to the requirements governing project EIR's and
redevelopment plan EIR's under Public Resources Code section 21166 and
Guidelines section 15126. "
'Where a statute empowers an administrative agency to adopt regulations, such
regulations "must be consistent, not in conflict with the statute
...." ' " (Ontario Community Foundations, Inc. v. State Bd. of
Equalization (1984) 35 Cal.3d 811, 816 [201 Cal.Rptr. 165, 678 P.2d 378].) (2d)
The inconsistency between Public Resources Code sections 21090 and 21166, and
Guidelines section 15168, subdivision (c)(1), renders the later inapplicable to
redevelopment plan EIR's. Designating
an EIR as a program EIR also does not by itself decrease the level of analysis
otherwise required in the EIR. "All EIR's must cover the same general
content. (Guidelines, 15120-15132.) (6a) The level of *534 specificity of an EIR is determined by the nature of the
project and the 'rule of reason' [citation], rather than any semantic label
accorded to the EIR." (Al Larson Boat Shop, Inc. v. Board of Harbor
Commissioners, supra, 18 Cal.App.4th at pp. 741-742, fn. omitted.) In
fact, the Guidelines do not specify the level of analysis to be performed in a
program EIR. Similar to a first tier EIR, a program EIR is designed for
analyzing program-wide effects, broad policy alternatives and mitigation
measures, cumulative impacts and basic policy considerations, as opposed to
specific projects within the program. (Guidelines, 15168, subd. (b)). However,
the Guidelines also state a program EIR "will be most helpful in dealing
with subsequent activities if it deals with the effects of the program as
specifically and comprehensively as possible. With a good and detailed analysis
of the program, many subsequent activities could be found to be within the
scope of the project described in the program EIR, and no further environmental
documents would be required." (Guidelines, 15168, subd. (c)(5), italics
added.) In
general, "[a]n EIR should be prepared with a sufficient degree of analysis
to provide decisionmakers with information which enables them to make a
decision which intelligently takes account of environmental consequences. An
evaluation of the environmental effects of a proposed project need not be
exhaustive, but the sufficiency of an EIR is to be reviewed in the light of
what is reasonably feasible.... The courts have looked not for perfection but
for adequacy, completeness, and a good faith effort at full disclosure."
(Guidelines, 15151.) "No
ironclad rules can be imposed regarding the level of detail required .... EIR
requirements must be 'sufficiently flexible to encompass vastly different
projects with varying levels of specificity.' [Citation.]" (Al Larson Boat
Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal.App.4th at pp.
745-746.) Accordingly,
the Guidelines describe the level of analysis and detail for an EIR as follows:
"The degree of specificity required in an EIR will correspond to the
degree of specificity involved in the underlying activity which is described in
the EIR. [] (a) An EIR on a construction project will necessarily be more
detailed in the specific effects of the project than will be an EIR on the
adoption of a local general plan or comprehensive zoning ordinance because the
effects of the construction can be predicted with greater accuracy. [] (b) An
EIR on a project such as the adoption or amendment of a comprehensive zoning
ordinance or a local general plan *535
should focus on the secondary effects that can be expected to follow from the
adoption, or amendment, but the EIR need not be as detailed as an EIR on the
specific construction projects that might follow." (Guidelines, 15146.) We
cannot determine as a matter of law which of CEQA's various levels of review
applies to all redevelopment plan EIR's. A redevelopment plan may be as
conceptual as a general plan, as detailed as a conditional use permit, or, as
in this case, somewhere in between. Nevertheless, because a redevelopment plan
EIR is not a true first tier EIR, and because the Town's redevelopment plan was
as detailed as it was, CEQA required the Town's redevelopment plan EIR to
contain more analysis of the 72 proposed projects than it did. The Town's
failure to analyze the impacts caused by each proposed project, to the extent
information was known or reasonably could have been known about each project,
constituted a failure to proceed in the manner required by CEQA. The
Town argues it should not be required to review each of the proposed development
projects because the project being approved was the redevelopment plan, not the
individual projects. This argument fails to reckon with the full meaning of the
fact that a redevelopment plan, including all "public and private
activities or undertakings pursuant to, or in furtherance of," the plan,
"shall be deemed to be a single project" under CEQA. (Pub. Resources
Code, 21090.) By adopting the redevelopment plan and certifying the EIR, the
Town committed itself to the "definite course of action" of
implementing the redevelopment plan. (Guidelines, 15352, subd. (a).) It is at
least "reasonably foreseeable" the Town will do so by developing at
least some of the 72 development projects already approved in the redevelopment
plan. This is particularly true since the Town will have to amend the
redevelopment plan if it desires to develop any other project not now named in
the plan. (Health & Saf. Code, 33445, subd. (b).) The
Town claims the 72 development projects had only recommended sites and descriptions,
and thereby bore insufficient detail to justify conducting environmental review
on any of them individually. In fact, the list, explanation and map of the
projects contained in the redevelopment plan, the Final Report, and in the EIR
demonstrate many, if not most, of the development projects were defined and
formulated with great specificity, including locations, functions, sizes and
capacities. The mere fact that changed circumstances could produce changes in
the details of the proposals does not render the proposals too vague or
indefinite to be reviewed in an EIR such as this. *536 In
fact, it is the detail with which the Town defines the development projects
that compels our decision here. For example, the redevelopment plan calls for
construction of a 500-car parking structure at the Juniper Ridge resort; 1,500
parking spaces in structures or lots at the North Village resort; a 250-car
parking structure at the Lodestar resort; two 200-car parking structures behind
Main Street; and 100-car, 50-car, and 30-car surface parking lots. The
conceptual map designates the proposed locations for these different parking
lots or structures. By
adopting the redevelopment plan, these projects are deemed approved for
purposes of CEQA, and no further environmental review may be performed for them
unless the requirements of Public Resources Code section 21166 are met. The
redevelopment plan EIR does not analyze any significant environmental impacts
potentially caused by these projects individually as a result of their proposed
use or location. If the Town develops these projects as approved and described
in the redevelopment plan, Public Resources Code sections 21090 and 21166 will
prohibit the Town from analyzing these projects' impacts arising from their use
and location, since that information was known or could have been known when
the redevelopment plan EIR was certified. The
Town notes the redevelopment plan EIR states the 72 development projects
"may be subject to additional environmental review on an individual
Redevelopment Plan basis, in accordance with the provisions of [Guidelines]
Section 15168 of CEQA ...." (Italics added.) As already demonstrated, CEQA
will prohibit additional review of the individual projects unless they or their
circumstances change significantly or significant new information which could
not have been known when the redevelopment plan EIR was certified comes to
light. This statement in the EIR thus offers no guarantee that potential
impacts reasonably foreseeable now will be analyzed prior to actual
development. At
this stage, it may not be possible to conduct a complete analysis of each of
these projects because not enough may be known. However, because each project
is deemed approved for purposes of CEQA, the significant impacts to the
environment likely to be caused by each individual project must be analyzed in
the redevelopment plan EIR at least to the same extent each project is detailed
in the redevelopment plan and its accompanying Final Report. Otherwise, such
analysis may never occur, and nothing in Public Resources Code section 21090
demonstrates the Legislature intended to exempt individual development projects
approved in a redevelopment plan and their impacts from environmental analysis
under CEQA. *537 Amici
curiae supporting the Town argue a ruling in plaintiffs' favor would deprive
municipalities of the ability to use a program EIR in order to streamline
environmental review for redevelopment projects. We disagree. Our ruling merely
clarifies what must be included in a redevelopment plan EIR in order for it to
obtain the procedural benefits CEQA grants a program EIR without violating the
requirement of Public Resources Code section 21090. Amici
curiae complain our ruling will make redevelopment planning significantly more
complicated and expensive, resulting in fewer redevelopment proposals coming to
fruition. These are arguments best addressed to the Legislature. By this
decision, we simply enforce the legislative intent expressed in the language of
CEQA, and in particular Public Resources Code sections 21090 and 21166, as
those statutes apply to the Town's redevelopment plan EIR. Because
we reverse the trial court's judgment on the ground discussed above, we do not
reach any of the other arguments presented by plaintiffs. Also, our ruling in
the CEQA appeal nullifies the trial court's order denying plaintiffs' motion to
tax costs. (Monson v. Fischer (1933) 219 Cal. 290, 291 [26 P.2d 6].) Redevelopment
Appeal (case No. C031043) I. Standard of
Review The
trial court determined the Town adopted the redevelopment plan in the manner
required by law and substantial evidence existed in the administrative record
supporting the Town's findings of blight. The trial court was required to
disregard any error, irregularity, or omission which did not affect the
substantial rights of the parties. (Code Civ. Proc., 866.) "[T]he
proper standard of review requires us to decide whether substantial evidence
supports the judgment of the trial court ...." (County of Riverside v.
City of Murrieta (1998) 65 Cal.App.4th 616, 620 [76 Cal.Rptr.2d 606].) Since
the trial court affirmed the findings of the Town on the basis of substantial
evidence in the administrative record (see In re Redevelopment Plan for Bunker
Hill (1964) 61 Cal.2d 21, 39-41, 45-50 [37 Cal.Rptr. 74, 389 P.2d 538]), our
task is virtually identical to the trial court's. Defining
substantial evidence, one court has well noted: "[I]f the word '
substantial' means anything at all, it clearly implies that such evidence must *538 be of ponderable legal
significance. Obviously the word cannot be deemed synonymous with 'any'
evidence. It must be reasonable in nature, credible, and of solid value; it
must actually be 'substantial' proof of the essentials which the law requires
in a particular case." (Estate of Teed (1952) 112 Cal.App.2d 638, 644 [247
P.2d 54], italics added.) Accordingly,
a local agency's findings in support of its adopting a redevelopment plan are
not conclusive. "The Community Redevelopment Law has established factors
to be considered in determining whether an area is blighted, and it is the
court's role to ensure those factors are taken into account. In short, the
courts are required to be more than rubber stamps for local governments."
(Emmington v. Solano County Redevelopment Agency (1987) 195 Cal.App.3d 491, 498
[237 Cal.Rptr. 636].) Unlike
CEQA, which required substantial evidence in the administrative record
demonstrating only that the EIR provided a reasonable, good faith discussion of
the potential impact, the Community Redevelopment Law requires substantial
evidence in the administrative record demonstrating the existence of specific
characteristics of urbanization and blight. (Health & Saf. Code, 33030,
33031, 33320.1.) In some instances, the statute requires a finding of a nexus,
to borrow a term from takings jurisprudence, between a particular
characteristic being reviewed and the actual condition being caused. If the
specific finding required by the Community Redevelopment Law cannot be made
from the evidence in the administrative record, the evidence is not "
'substantial' proof of the essentials which the law requires" and the
finding is not supported by substantial evidence. (Estate of Teed, supra, 112
Cal.App.2d at p. 644.) II. Elements
of Appeal-Findings Establishing Blighted Area To
approve the redevelopment plan, the Town Council had to find, among other
things, that the area proposed to be subject to the redevelopment plan, the
Project Area, is "a blighted area." (Health & Saf. Code, 33367,
subd. (d)(1).) To qualify as a blighted area, the Project Area must satisfy
each of the following requirements: 1.
The area is "predominantly urbanized." (Health & Saf. Code,
33030, subd. (b)(1).) 2.
The area is "characterized" by one or more statutorily defined physical
conditions that cause blight. (Health & Saf. Code, 33030, subd. (b)(2)(A).)
*539 3.
The area is "characterized" by one or more statutorily defined
economic conditions that cause blight. (Health & Saf. Code, 33030, subd.
(b)(2)(A).) 4.
The combination of physical and economic conditions causing blight is "so
prevalent and so substantial that it causes a reduction of, or lack of, proper
utilization of the area to such an extent that it constitutes a serious
physical and economic burden on the community which cannot reasonably be
expected to be reversed or alleviated by private enterprise or governmental
action, or both, without redevelopment." (Health & Saf. Code, 33030,
subd. (b)(1).) [FN7] FN7 Although not pertinent to this case, in lieu of the second and third requirements (being characterized by economic and physical conditions causing blight), the area may instead be characterized by the existence of subdivided lots of irregular form and shape and inadequate size for proper usefulness and development that are in multiple ownership. (Health & Saf. Code, 33030, subd. (b)(2)(B).) An
area which meets all of the conditions above may, in addition, be characterized
by inadequate public improvements, parking facilities, or utilities. (Health
& Saf. Code, 33030, subd. (c).) The
trial court found there was substantial evidence in the administrative record
on which the Town could find the Project Area was a blighted area. Plaintiffs
claim substantial evidence does not exist to support each of the statutory
elements required for the Project Area to qualify as a blighted area. We
conclude no substantial evidence exists on which the Town and the trial court
could find the Project Area is predominantly urbanized and suffers from the
statutorily defined physical conditions that cause blight. We explain below why
this is so. Since the Town and trial court's findings cannot establish all of
the requirements necessary to show the existence of a blighted area, the Town's
adoption of the redevelopment plan must be vacated in its entirety. We thus
need not review the other arguments raised by plaintiffs against the
redevelopment plan. [FN8] *540 FN8 Plaintiffs initially fault the Town's use of a structural exterior survey to determine the existence of blight, claiming it resembled a methodology rejected in Gonzales v. City of Santa Ana (1993) 12 Cal.App.4th 1335, 1342-1345 [16 Cal.Rptr.2d 132]. The Gonzales court did not fault the use of a structural exterior survey as a per se improper methodology. Rather, it stated the survey in that case did not by itself result in sufficient evidence to support a finding of blight. (Id. at p. 1345.) The Community Redevelopment Law does not prescribe a particular methodology. At issue here is not whether use of a survey was appropriate, but whether whatever methods the Town used to document the existence of blight resulted in substantial evidence supporting the statutorily required elements of a blighted area. III.
Predominantly Urbanized The
trial court determined substantial evidence supported the Town's finding that
the Project Area was "predominantly urbanized." Plaintiffs claim no
substantial evidence supports the Town's finding. We agree with plaintiffs. A
predominantly urbanized project area is one where not less than 80 percent of
the "land": (1) has been or is "developed for urban uses";
(2) is characterized by the existence of subdivided lots of irregular form and
shape and inadequate size for proper usefulness and development that are in
multiple ownership; or (3) is an integral part of one or more areas developed
for urban uses which are surrounded or substantially surrounded by
"parcels" which have been or are "developed for urban
uses." (Health & Saf. Code, 33320.1, subd. (b).) A "parcel"
is considered "developed" if it is developed in a manner consistent
with zoning or otherwise permitted by law. (Health & Saf. Code, 33320.1,
subd. (c).) The
town council found the Project Area was "predominantly urbanized"
based on evidence contained in the Final Report. The Final Report relied upon
the building survey to state the Project Area consisted of 1,139 acres, 167.10
of which (or 14.67 percent) were vacant. The Final Report concluded the
remaining nonvacant land (85.33 percent) was thus "urbanized."
Besides documenting the amount of vacant land, the Final Report states the
Project Area "may be considered predominantly urbanized as all properties
are an integral part of an area developed for urban uses." The
Town also claims the building survey determined approximately 138 acres of the
167 vacant acres existed within "urbanized areas." The Town argues
vacant parcels in "urban areas" are "deemed 'urbanized' "
under Health and Safety Code section 33320.1, subdivision (b)(3). Based on this
theory, the Town believes, and the trial court so held, the Final Report
actually underestimated the amount of urbanized land, and the correct figure
should be 97 percent, or 1,110 acres of the total 1,139-acre Project Area. At
trial, plaintiffs claimed the Final Report's evidence of urbanization consisted
only of conclusions without evidentiary support. Plaintiffs also believe the
Final Report wrongly inflates the amount of urbanized land in the Project Area.
They claim 84 acres of land used as a golf course at the Lodestar resort, 74
acres of undeveloped land at the community college site, and 120 undeveloped
acres surrounding the airport were improperly determined to be nonvacant, and
thus "urbanized," land. *541 The
term "urban" is "not fixed, objective, or easily
ascertainable...." (County of Riverside v. City of Murrieta, supra, 65
Cal.App.4th at p. 623.) At a minimum, however, the mere fact that property is
not vacant or is developed in accordance with its zoning does not by itself
render the property "developed for urban uses." Lands that are not
vacant may be developed for uses that are not urban uses. (Id. at p. 624.) The
Final Report's conclusion that 85 percent of the land is "urbanized"
simply because it is not vacant fails to account for this distinction, and thus
does not by itself constitute substantial evidence on which the Town could rely
to determine the extent of the Project Area's urbanization. Furthermore,
since the survey did not determine which nonvacant lands were developed for
urban uses and which were not, the Town could not conclude with accuracy which
vacant lands were integral parts of land developed for urban uses that were
themselves substantially surrounded by parcels developed for urban uses. As
to the specific properties challenged by plaintiffs, the entire Lodestar golf
course and all of the community college parcel were determined in the building
survey not to be vacant and thus urbanized. The Final Report also claimed all
of the land at the airport was urbanized. Regarding these properties, the
issue, as with all properties claimed by the Town to be urbanized, is whether
substantial evidence exists in the administrative record showing that each of
these "lands" was either developed for urban uses or was an integral
part of an area of land developed for urban uses that was itself substantially
surrounded by parcels of land developed for urban uses. A. Lodestar
golf course. Analysis
of the Lodestar golf course requires reciting additional background
information. Lodestar is a proposed 222-acre mixed-use destination resort. The
EIR for the project described the project's site as follows: "The site ...
is for the most part covered with Sierran Upper Montane Forest. This plant
community is characterized by tall conifers that include Jeffrey pine, white
fir, and red fir. The vast majority of the forested site is undeveloped with
the exception of a few residences and a number of informal trails and dirt
roads." (Italics added.) According
to the Lodestar at Mammoth Master Plan, adopted by the town council in 1991 and
revised in 1992, the Lodestar project would result in the construction of 75
acres of residential units, 10 acres of hotel units, 5 acres of commercial
uses, 12 acres of roads, 5 acres of open space, and the approximately 110-acre
golf course. The EIR described the golf course as a *542 "mountain style" golf course constructed through the
entire site. Numerous ponds and lakes would be developed within the course. Of
the lands designated for the golf course and open space, approximately 78 acres
would be cleared, leaving 37 acres of natural open space buffer between
fairways and adjacent uses. All trees exceeding 36 inches diameter breast
height were to be considered for retention within the fairway areas. Other
than the construction of some or all of the golf course and one building on the
course (apparently a club house with a parking lot), "there has been no
implementation" of the Lodestar master plan. Except for the areas used as
a golf course, the project site thus presumably retains its forested,
undeveloped character. The
Town did not include the entire Lodestar project site within the redevelopment
Project Area. The Lodestar master plan land use diagram shows the area of the
project included in the redevelopment Project Area, a parcel of roughly 80
acres plus two other parcels, was approved to contain eight of the golf
course's 18 holes. However, the land use map also shows that same area of the
project was approved to contain, in addition to part of the golf course, 30
acres of residential units (a total of 380 units), 10 acres of hotel use (2
hotels containing a total of 500 units) and 5 acres of commercial use (totaling
80,000 square feet). These
45 acres remain undeveloped, but yet the Town classified them as nonvacant and
included them as urbanized lands because they were located within the same
assessor's parcels as the eight holes of the golf course. Since the golf course
was consistent with the parcels' zoning, the Town argues subdivision (c) of
Health and Safety Code section 33320.1 allowed the parcels in their entirety to
be considered as developed for urban uses. Subdivision
(c) of Health and Safety Code section 33320.1 reads: "For purposes of this
section, a parcel of property as shown on the official maps of the county
assessor is developed if that parcel is developed in a manner which is either
consistent with zoning or is otherwise permitted under law." The Town
reads subdivision (c) as deeming all of a parcel developed if only a portion of
the parcel is developed. The
statute's language does not support the Town's interpretation. Subdivision (c)
of Health and Safety Code section 33320.1 is concerned with the legality of
development, not with the extent of development. It prohibits including parcels
fully developed with urban uses in the calculation of developed urban land if
that development is illegal. It says nothing of deeming a partially developed
parcel to be a fully developed parcel. *543 Past
amendments to Health and Safety Code section 33320.1 support this reading of
subdivision (c) and its application here. In 1983, the Legislature sought to
respond to a practice by some redevelopment agencies which had abused the
redevelopment process by forming project areas that included significant
amounts of unblighted and vacant land. (See Assem. Com. On Revenue and
Taxation, Analysis of Assem. Bill No. 1545 (Hannigan) (Apr. 18, 1983) pp. 5, 8
(Assem. Republican Caucus files (1983) Assem. Bill No. 1545).) [FN9] To remedy this problem, the
Legislature chose to require the project area to be "predominantly
urbanized." It defined that phrase to mean in part that "not less
than 80 percent of the privately owned property in the project area has been or
is developed for urban uses, ... or is an integral part of an area developed
for urban uses." (Stats. 1983, ch. 1324, 1, p. 5352.) FN9 Assembly Bill No. 1545 was ultimately vetoed by the Governor, but not before its provisions amending Health and Safety Code section 33320.1 were adopted by the Legislature as part of Assembly Bill No. 322. That statute became law without the Governor's signature. (See Stats. 1983, ch. 1324, 1, p. 5351.) By
1992, the Legislature had evidence showing some redevelopment agencies
continued to form project areas encompassing large tracts of vacant land,
despite the statutory amendments adopted in 1983. (See Sen. Local Gov. Com.,
Analysis of Sen. Bill No. 1711 (Bergeson) (Apr. 13, 1992) p. 6 (Sen. Local Gov.
Com. files (1992) Sen. Bill No. 1711).) As a result, the Legislature adopted
Senate Bill No. 1711 to tighten further the definition of "predominantly
urbanized" in three respects. (Health & Saf. Code, 33320.1; see Stats.
1992, ch. 1356, 4, p. 6777.) First,
Senate Bill No. 1711 replaced the word "property" with the word
"land." (Health & Saf. Code, 33320.1, subd. (b).) Second, it
required 80 percent of all land in the project area, not just privately owned
property, to be urbanized. (Ibid.) Third, in order for vacant land to qualify
as urbanized because it was an integral part of an area developed for urban
uses, Senate Bill No. 1711 required the area developed for urban uses, of which
the vacant land was an integral part, to be itself "surrounded or
substantially surrounded by parcels which have been or are developed for urban
uses." (Health & Saf. Code, 33320.1, subd. (b)(3).) Senate
Bill No. 1711's replacement of the word "property" with the word
"land" is significant. Although land is a type of property (see Civ.
Code, 658), the term "property" generally refers to a person's
"right to possess, use, and enjoy a determinate thing (either a tract of
land or a chattel); the right of ownership." (Black's Law Dict. (7th ed.
1999) p. 1232.) Parcels divide land into tracts, for purposes of identification
and ownership. (Id. at p. 1137.) *544 By
contrast, "[l]and is the material of the earth, whatever may be the
ingredients of which it is composed ... and includes free or occupied space
...." (Civ. Code, 659.) The
Legislature's use of the term "land" instead of the words
"property" or "parcel" as part of its continuing attempt to
limit the amount of vacant land included in a project area demonstrates an
intent to ensure 80 percent of all of the land, irrespective of parcel lines,
is predominantly urbanized. By using the term "land," the Legislature
attempted to ensure a parcel line would not be used to allow vacant,
nonblighted lands to be included in redevelopment project areas. The
facts of this case exemplify the misuse of redevelopment power the Legislature
sought to curb. The Town sought to include in the Project Area undeveloped and
obviously nonblighted land which is planned and approved for extensive private
development. The touchstone of redevelopment is the elimination of blight on
developed lands, not the instigation of economic development on forested lands.
(See Health & Saf. Code, 33030, subd. (a), 33035, 33036.) The
Town thus violated Health and Safety Code section 33320.1 by not determining
how much of the golf course land was developed for an urban use. It was
improper to determine the entire parcels containing the golf course were
urbanized merely because a portion of the lands were developed with the golf
course. The undeveloped lands should not have been included with the lands
developed with the golf course for purposes of calculating lands developed for
urban uses under Health and Safety Code section 33320.1, subdivision (b)(1). This,
however, does not end our analysis of the Lodestar golf course. Approximately
half of the Lodestar resort included in the Project Area was developed with the
functioning golf course. Plaintiffs question whether the developed course
itself was properly considered to be an urban use simply because it was a
nonvacant use consistent with zoning. (10) "Urban is defined as 'of,
relating to, characteristic of, or taking place in a city ... constituting or
including and centered on a city ... of, relating to, or concerned with an
urban and specif. a densely populated area ... belonging or having relation to
buildings that are characteristic of cities ....' [Citations.]" (Honey
Springs Homeowners Assn. v. Board of Supervisors (1984) 157 Cal.App.3d 1122,
1140 [203 Cal.Rptr. 886].) The
term "urban" thus refers more to the location and "varying
characteristics" of a use than to the type of use. (157 Cal.App.3d at p.
1141.) *545 For example, a residential
dwelling can exist either in an urban area or in a rural area. In either
locale, the dwelling can be large or small and, in this era, will likely be
served by many public utilities. The fact that it is a developed dwelling does
not make the dwelling an urban use. Rather, it is the location and
characteristics of the dwelling and its environs that may make the use an urban
use. One would more likely conclude a residential dwelling unit located on the
tenth floor of a high-rise apartment building in a downtown area served by mass
transit is an urban use, while a residential dwelling unit located on a 10-acre
parcel in a area devoted to agricultural uses is not an urban use. So
it is with golf courses. The mere fact that land is developed as a golf course
does not conclusively render the use an urban use for purposes of
redevelopment. Here, this golf course is designed as a "mountain
course" with significant amounts of natural and preserved forest lands and
water features interspersed throughout the course. Further, the course was
developed on what was otherwise undeveloped forest land, and continues to be
surrounded by undeveloped forest land. The characteristics of this golf course
can hardly be related to or characteristic of a city or a densely populated
area. We conclude there is no substantial evidence on which the town council
could determine the Lodestar golf course was an urban use. As
a result of our determining the Lodestar golf course is not an urban use, it
becomes clear the undeveloped portions of Lodestar cannot qualify as urbanized
pursuant to Health and Safety Code section 33320.1, subdivision (b)(3). These
undeveloped lands may be an integral part of the golf course project, but they
are not an integral part of lands developed for urban uses. B. Community
college site. For
the same reasons it was improper for the Town to classify the undeveloped lands
of the golf course parcels as urbanized, it was also improper for the Town to
classify the undeveloped 74 acres of the 76-acre college site as developed and
urbanized. A
1994 EIR evaluated the likely impacts from a proposed development of the
college site. The proposed project called for construction of a complete
college campus on the site. The college would eventually consist of an 84,000-
square-foot college center with classrooms, labs and a library; a 56,000-
square-foot cultural center; an 80,000-square-foot upper division college
facility; a 75,000-square-foot student housing facility; and a 100,000-square-
foot facility for the Mammoth Unified School District. The
EIR described the site of this proposed development as follows: "The
entire site and all the area south of it are U.S. Forest Service public *546 lands.... The 80k- acre project
site is a rolling, northeastward sloping, rectangular parcel .... The site is
generally covered with natural vegetation consisting of sparse Jeffrey pine
trees with moderate to dense manzanita and sagebrush ground cover. The
topography, originally a glacial moraine, has many large boulders (up to 15'k-
diameter).... The project site itself is completely vacant of development; only
some undesignated foot trails are present." (Italics added.) The
Town does not dispute that only one building has been built on the site and
approximately 74 acres remain vacant. The Town, however, claims, and the trial
court found, the statute deems the entire site to be developed because two
acres of the parcel are developed according to zoning and because the entire
parcel is an integral part of an area developed for urban uses that is itself
surrounded by urban uses. As
shown above, the Town's and trial court's reading of the statute is incorrect.
The vacant acreage is not to be counted as urbanized merely because it is part
of a parcel which has been partially developed consistent with zoning. Further,
the redevelopment project area map and the EIR show the site is not surrounded
by parcels developed for urban uses. At least two sides of the rectangular
parcel are not adjacent to any development at all. Therefore, there is no
substantial evidence by which the town council could have determined the 74
vacant acres were urbanized land. C. The
airport. Plaintiffs
similarly claim 120 acres of the 202-acre airport site were undeveloped and
should not have been considered as developed. The Town did not include the
airport in its building survey. Rather, it relied upon the 1988 Mammoth/June
Lakes Airport Master Plan Report and the 1986 Mammoth/June Lake Airport Land
Use Plan EIR to make the findings necessary to include the airport in the
Project Area. The
Town included all of the 202-acre airport site in the Project Area as
nonvacant, urbanized land without determining how much of the airport land had
actually been developed for urban uses. The Town argues the area is deemed predominantly
urbanized because it is partially developed in a manner permitted by law. As we
have already explained, the mere fact that part of land is developed consistent
with zoning does not deem the entire land area under review "developed for
urban uses." Relying
on a description of existing facilities contained in the 1986 airport land use
plan EIR, plaintiffs determined 74 acres of the airport were *547 developed and 128 acres were
undeveloped. In their briefs before us, plaintiffs claim 85 acres are
developed. The Town argues plaintiffs improperly excluded so-called safety
setbacks and safety zones as well as the land between the various facilities,
such as the land between the runways, the taxiways, and the terminal building
from their calculation of developed land. Citing
to plaintiffs' determinations and the same master plan report's list of
facilities but to nothing more, the Town states at least 130 acres are
developed, excluding setbacks, safety zones and the areas between buildings.
The Town likely excludes setbacks, safety zones, and areas between existing
buildings from its calculation for the same reason plaintiffs did: those
measurements are not included in the master plan report. At a minimum, however,
the Town's calculations admit all 202 acres of the airport land are not
developed for urban uses. Furthermore,
we cannot determine whether the land the Town claims is developed includes
lands the 1986 airport land use plan EIR and the 1988 master plan report
described as: (a) an unspecified amount of "[u]ndeveloped land in the
present hangar area" which the airport anticipates developing for
additional hangar areas; and (b) 7.8 acres of undeveloped land on the airport
site leased as of August 1988 for construction of a hotel. These points demonstrate
the town council did not have substantial evidence on which it could determine
all 202 acres of the airport were developed for urban uses. The
Final Report states the airport is an integral part of an area developed for
urban uses "although this area is not bounded by urban uses due to the
nature of land use concerns associated with aviation, which for safety reasons
have limited urban development in flight paths." This statement admits the
airport does not qualify as urbanized land under subdivision (b)(3) of Health
and Safety Code section 33320.1. The fact that this use is an airport does not
exempt the use from the statutory requirement that to qualify under subdivision
(b)(3), the vacant areas must be part of an area developed for urban uses which
is itself surrounded by parcels which have been developed for urban uses. Thus,
there was insufficient evidence in the administrative record to permit the town
council to find the entire 202-acre airport to be developed for urban uses. [FN10] *548 FN10 At trial,
plaintiffs sought to augment the administrative record. One of the documents
plaintiffs sought to include in the record was an airport expansion subsequent
EIR, prepared in 1997. The trial court denied plaintiffs' request. Plaintiffs
renew their motion before us, and we, too, deny it as it is unnecessary for
purposes of our decision. However, the Town cites to language in the airport
expansion subsequent EIR as evidence of urbanization at the airport. We cannot
rely on evidence which was not admitted into the trial. Even if we could, the
evidence now offered by the Town does not support its position. The airport
expansion subsequent EIR claims the airport now intends to construct 100
permanent hangars instead of the 86 forecast in the 1988 master plan, and
forecasts the hotel to have 250 units instead of the 150 originally planned.
The hotel now will apparently be built at a different location on the airport
site. The revised plan also calls for 2 acres of retail use not planned in the
1988 master plan, and a total of 694 automobile parking spaces, 638 more than
currently exist and 384 more than planned to be constructed in the 1988 master
plan. The airport expansion subsequent EIR claims this new development will
occur on lands "already disturbed and in use for airport operations."
The Town claims this language confirms the airport is fully urbanized. The maps
depicting these proposed improvements, however, do not show the lands are in
use for airport operations. Furthermore, labeling the land as "disturbed"
did not inform the town council whether the land was "developed for urban
uses." The cited materials do not support the Town's argument. In
summary, the Town improperly deemed all nonvacant land as developed for urban
uses. The Town also improperly determined the approximately 80 acres of the
Lodestar project included in the Project Area, 74 acres of the 76-acre
community college site, and all 202 acres of the airport were urbanized under
either subdivision (b)(1) or subdivision (b)(3) of Health and Safety Code
section 33320.1. As a result, there is no substantial evidence to permit the
trial court to uphold the Town's finding that 80 percent of the Project Area
was predominantly urbanized. IV. Physical
Conditions That Cause Blight To
be a blighted area, the Project Area must be "characterized" by one
or more statutorily defined physical conditions that cause blight. (Health
& Saf. Code, 33030, subd. (b)(2)(A).) Physical conditions that cause blight
are defined as follows: "(1)
Buildings in which it is unsafe or unhealthy for persons to live or work. These conditions can be caused by serious
building code violations, dilapidation and deterioration, defective design or
physical construction, faulty or inadequate utilities, or other similar factors. "(2)
Factors that prevent or substantially hinder the economically viable use or
capacity of buildings or lots. This condition can be caused by a substandard
design, inadequate size given present standards and market conditions, lack of
parking, or other similar factors. "(3)
Adjacent or nearby uses that are incompatible with each other and which prevent
the economic development of those parcels or other portions of the project
area. *549 "(4)
The existence of subdivided lots of irregular form and shape and inadequate
size for proper usefulness and development that are in multiple
ownership." (Health & Saf. Code, 33031, subd. (a).) Plaintiffs
claim no substantial evidence supports the Town's findings of physical
conditions that cause blight. Two technical matters complicate our analysis on
these issues. First, when the Town adopted its findings of conditions of blight
in Ordinance No. 97-08, it did not in each instance use the statutory language
defining conditions that can cause physical blight. Second, plaintiffs
continually refer in their briefs to evidence in the Final Report as
"findings," when instead the facts and information contained in the
Final Report are the evidence used to support the findings contained in
Ordinance No. 97-08. We
will view plaintiffs' claims as challenges to the evidence supporting the
findings of Ordinance No. 97-08 as those findings reflect the statutorily
defined conditions of blight. Further, we must determine whether the Town
substantially complied with the legislative requirements. We must also
determine whether the findings of Ordinance No. 97-08 are supported by
substantial evidence demonstrating the Project Area can be characterized by the
existence of the statutorily prescribed physical conditions of blight. (Sanguinetti
v City Council (1965) 231 Cal.App.2d 813, 818 [42 Cal.Rptr. 268].) A. Unsafe or
unhealthy buildings. Plaintiffs
assert the evidence does not support a finding that the project area is
characterized by "[b]uildings in which it is unsafe or unhealthy for
persons to live or work." (Health & Saf. Code, 33031, subd. (a)(1).)
We agree with plaintiffs, as we shall explain. Although
the Town did not make this specific finding, it made the following findings
regarding the condition of buildings in the Project Area: "Aging
and deteriorating buildings requiring substantial rehabilitation or extensive
reconstruction to correct serious building code violations; ... "Aging
and deteriorating buildings of defective or substandard design or construction;
... "Buildings
which are in need of seismic upgrading to meet current seismic building code
standards .... ." To
make these findings, the Town relied primarily on the building condition survey
of all buildings in the Project Area (except the airport), building *550 department records, and a 1992
housing condition survey. The Final Report approved by the Agency and forwarded
to the town council as part of the redevelopment plan adoption process
summarized the results of the building condition survey. The building survey
did not specifically conclude whether buildings were unsafe or unhealthy for
human occupancy. Rather, the building survey determined, among other things,
whether structures on a parcel suffered from building code violations, were
deteriorated or dilapidated, suffered from defects in design or construction,
or whether the buildings complied with seismic safety codes. Plaintiffs
correctly claim these factors as defined and reviewed in the building survey
and the housing condition survey do not constitute substantial evidence of the
existence of buildings which are unsafe or unhealthy for human occupancy. 1. Building
code violations. The
building survey determined less than 2 percent of the buildings in the project
area suffered building code violations. For purposes of the building survey, a
building code violation was defined as "[b]uildings or structures which
have obvious health and safety building code violations which have been
reported to officials of the Town of Mammoth Lakes Building Department. This
includes construction which has not met current building codes and for which
building permits and inspections were not obtained from the Town." Plaintiffs
claim this definition does not determine whether a building is unsafe for human
occupancy. The Town argues, and the trial court found, the building survey's
limitation to "obvious health and safety related violations" per se
satisfies the statutory criterion of serious building code violations causing
unsafe or unhealthy buildings. However, neither the Town nor its survey defines
health and safety violations. The Town does not direct us to anywhere in
statute or regulation that defines such violations. Theoretically,
all building codes are designed for the "health and safety" of a
structure's occupants. There is nothing in the administrative record to explain
how the survey's inclusion of only so-called health and safety violations
limited the scope of the building survey to "serious" building code
violations which created an unsafe building, as opposed to any code violation
which may or may not result in an unsafe building. While
the phrase "health and safety" building code violations may mean
something specific to building department personnel, the Final Report did not
explain its meaning to the town council. The town council thus could not know
whether the evidence of building code violations demonstrated the *551 existence of buildings that were
unsafe or unhealthy for human occupation, nor can we. Even
if it could be determined that the violations reported in the building survey
caused the relevant buildings to be unsafe, the survey showed less than two
percent of the buildings and the parcels in the Project Area suffered from this
defect. A developed area of land cannot be "characterized" as
suffering from conditions causing physical blight merely because less than two
percent of its buildings have serious building code violations. 2.
Deterioration and dilapidation. The
building survey determined that approximately 29 percent of parcels in the
Project Area were affected by buildings suffering from deterioration and
dilapidation. The building survey claimed 324 buildings were so affected, or
approximately 25 percent of the total number of buildings in the Project Area.
For purposes of the building survey, deteriorated or dilapidated buildings were
defined as structures "which show visible and obvious signs of
dilapidation or deterioration on either the building exterior or interior
construction. Examples might be severely deteriorated roofing or siding,
foundation failures, peeling paint, dry rot and other physical evidence of
unmaintained structures." Plaintiffs
argue the characteristic of deterioration and dilapidation, as defined by the
building survey, does not demonstrate the existence of buildings unsafe for
human occupancy. The Town responds, and the trial court agreed, that because
the building survey defined dilapidation to include such factors as severely
deteriorated roofing and foundation failures, its application resulted in locating
buildings that were unsafe for humans. The
building survey's definition, however, also included such factors as
"[peeling] paint, dry rot, and other physical evidence of unmaintained
structures." To that extent, the definition is overbroad. Peeling paint,
dry rot, and lack of maintenance need not by themselves result in an unsafe or
unhealthy building. The breadth of the definition used in the building survey
prevented the town council from determining whether the Project Area could
truly be "characterized" as containing buildings unsafe for human
occupancy due to their deteriorated or dilapidated condition. The
Town further relies upon the 1992 housing study as evidence of dilapidation.
The Final Report claims the housing study concluded that 26 percent of the 596
housing units it evaluated in the Project Area were classified as "Average
Minus," "Poor," or "Very Bad" and thus needed *552 rehabilitation. The actual housing
study, however, is not a part of the record. Only the definitions of the
classifications are included and they do not indicate how many houses were
determined to be which classification, nor do they include a classification
called "Very Bad." Furthermore,
one cannot determine from the housing study's "Average Minus"
classification whether such a housing unit is unsafe or unhealthy for human
occupation. A house that exhibits each of the listed characteristics (single
glazed windows needing repair, under insulation, wood siding exteriors needing
paint or repair, decks and stairs needing repair or replacement, doors without
weather stripping, electric heating, and overall appearance lacking in
maintenance) is not necessarily unsafe or unhealthy for human occupancy. We do
not believe the Legislature intended a house constructed with single glazed
windows and electric heating to constitute an unsafe house for purposes of
redevelopment, even if the house was constructed in a community which can
experience severe winter conditions. The
trial court noted the Final Report's statement that " '[s]ince the housing
condition survey in 1992 there has been a continuing lack of maintenance of
residential units which exhibited signs of deterioration in 1992.' " The
Final Report, however, also stated: "[T]he majority of the units are in
need of moderate repair. Basically the buildings are structurally sound but are
in need of one or more systems to be renovated." (Italics added.) We do
not understand how a survey concluding housing units which in general lack
efficient insulation but are structurally sound can be used as evidence showing
the units are unsafe for human occupancy. In
short, the town council could not determine with reasonable certainty the
existence or extent of buildings rendered unsafe due to deterioration or
dilapidation based on the evidence in the administrative record. 3. Defective
design and substandard construction. The
Final Report stated the building survey documented defective design or
construction in 273 buildings, or about 21 percent of the buildings surveyed.
The town council cited this as evidence of blight and found the Project Area
included aging and deteriorating buildings of defective design or construction. The
building survey defined "defective design or construction of
building" as structures "which have defects in design or construction
which cause the structures to be non-functional or obsolete. Examples might
include retail buildings with inadequate depths for retail display area,
storage and rest *553 room
facilities; buildings which are not energy efficient and expensive to operate
lodging facilities which do not meet demands of today's tourist market,
etc." Whether
a building has become nonfunctional or obsolete for its use under current
market conditions does not indicate whether the building is unsafe or unhealthy
for human purposes. This evidence does not support the town council's finding
in so far as the evidence relates to existence of unsafe buildings in the
Project Area. 4. Buildings
in need of seismic upgrading. The
building survey stated 199 buildings existing on 38 percent of the parcels in
the Project Area, or approximately 15 percent of the buildings in the Project
Area, required seismic upgrading to meet current seismic building code
standards. The building survey defined such buildings as those which did
"not meet current seismic safety design and construction requirements of
the 1994 Uniform Building Code and other applicable building codes in effect in
the Town of Mammoth Lakes." Plaintiffs
argue the violation of a current seismic safety regulation did not per se
result in a building unsafe or unhealthy for human occupancy. Both the Town and
the trial court reasoned failure to meet current seismic safety building codes
"is implicitly serious and unsafe." A
hypothetical example illustrates the difficulty with the trial court's
reasoning. Suppose a building was erected in 1990 in full compliance with the
1988 Uniform Building Code's seismic safety regulations, and the building
continues to comply with those regulations today. Under the Town's definition,
this building would be classified as unsafe for human occupancy, even though by
law the Town was prohibited from imposing the 1994 Uniform Building Code's
requirements on the structure. (Health & Saf. Code, 18938.5.) Indeed,
when the Legislature has granted authority to municipalities to require older
structures to be retrofitted for purposes of seismic safety, it has required
the local agency to demonstrate not just that the structure violated existing
seismic safety codes, but that the structure would be "hazardous to life
in the event of an earthquake ...." (Health & Saf. Code, 19161.) The
Town made no such showing here. Based
on the above, we find there is no substantial evidence on which the Town and
the trial court could determine the Project Area was characterized *554 by the existence of buildings
unsafe or unhealthy for human use and occupancy. B. Factors
Preventing Economically Viable Use. Plaintiffs
argue the evidence does not support a finding that the Project Area is
characterized by "[f]actors that prevent or substantially hinder the
economically viable use or capacity of buildings or lots." (Health &
Saf. Code, 33031, subd. (a)(2).) This characteristic "can be caused by a
substandard design, inadequate size given present standards and market
conditions, lack of parking, or other similar factors." (Ibid.) On
this point, the Town found the following conditions to exist in the Project
Area: "Aging
and deteriorating buildings of defective or substandard design or construction
.... "Limited
economically viable use or capacity of parcels due to substandard site design
involving inadequate traffic circulation, access, and truck loading areas,
inadequate snow storage areas and a shortage of parking .... "Limited
economically viable use or capacity of subdivided lots due to substandard size
and irregularly-shaped parcels ...." Two
of the Town's findings do not satisfy the requirements of the statute. Physical
conditions causing blight do not result just from factors that limit a parcel's
economic viability; they arise from factors that "prevent or substantially
hinder" a parcel's economic viability. (Health & Saf. Code, 33031,
subd. (a)(2), italics added.) (12) Determinations of blight are to be made on
the basis of an area's existing use, not its potential use. Redevelopment
" 'never can be used just because the public agency considers that it can
make a better use or planning of an area than its present use or plan.' "
(Sweetwater Valley Civic Assn. v. City of National City (1976) 18 Cal.3d 270,
278 [133 Cal.Rptr. 859, 555 P.2d 1099].) Thus,
factors limiting a building or lot which is currently enjoying an economically
viable use or capacity from achieving potentially greater economic returns are
outside the scope of subdivision (a)(2) of Health and Safety Code section
33031. (11b) Rather, the evidence must show the existence of physical
conditions (such as design, size, lack of parking, etc.) which prevent or
substantially hinder an existing use or capacity of a lot or building from
achieving or maintaining economic viability. *555 Furthermore,
the statute's language shows the Legislature was not interested in merely the
existence of the suggested physical conditions. Substantial evidence must show
the physical factors actually prevent or substantially hinder an existing use
or lot's economic viability. For example, many economically viable uses,
particularly in urban areas, lack sufficient automobile parking. Nevertheless,
such uses continue to be profitable, demonstrating lack of parking for those
uses is not a factor preventing or hindering their economic viability. They
possibly could be more profitable with more parking, but subdivision (a)(2) of
Health and Safety Code section 33031 applies only if those uses and lots suffer
economic nonviability now. Accordingly, contrary to the Town's argument, the
record must demonstrate substantial evidence quantifying the effect the
physical condition has on the economic viability of the existing use or
capacity of the building or lot. On
this criterion of physical condition affecting economic viability, plaintiffs
challenge the Town's evidence relating to defective design or construction,
inadequate lot sizes, and substandard site design. The Town's building survey
found approximately 23 percent of the parcels, or approximately 21 percent of
the buildings, suffered from defective design or construction; approximately 15
percent of the parcels in the Project Area were inadequately sized; and
approximately 59 percent of the parcels experienced "substandard site
design." On
each of these categories, plaintiffs claim the record contains no evidence
quantifying how the existence of these physical conditions actually renders the
current use or capacity of the building or lot economically nonviable. We
agree. Nowhere in the record is there substantial evidence by which the town
council could find the existence of these conditions prevented or substantially
hindered the economic viability of the existing uses and capacities of the lots
and buildings in the Project Area. The
Town argues that accurately quantifying such impacts would be prohibitively
expensive and would invade the privacy rights of those from whom the agency
obtains economic information. That is an argument the Town must take to the
Legislature. The statute clearly intends for evidence of the physical
condition's impact on economic viability to be in the record to support the
finding. We are confident if a building or lot is truly economically nonviable,
the Town can find and present substantial evidence demonstrating that state of
affairs in a manner acceptable to the private property or business owner. The
Town claims the Final Report's presentation of the Town's sales tax and
transient occupancy tax revenues over the past five years provides *556 substantial evidence of the
physical conditions' economic impact. We disagree. This evidence shows tax
receipts from the entire Town, not just the Project Area. Furthermore, the town
council could not determine from the evidence that the flat rate of tax
revenues was caused by defective design or construction, inadequate lot sizes,
or substandard site design. The rate of revenues could have been caused by a
myriad of different reasons. This evidence is far too disconnected to
demonstrate the lack of economic viability due to the physical factors here at
issue. We
briefly review additional arguments raised regarding each of the physical
factors. 1. Defective
design or construction. The
survey defined the factor of defective design or construction as "[s]tructures
which have defects in design or construction which cause the structures to be
non-functional or obsolete. Examples might include retail buildings with
inadequate depths for retail display area, storage and rest room facilities;
buildings which are not energy efficient and expensive to operate lodging
facilities which do not meet demands of today's tourist market; etc." The
trial court declared a "non-functional or obsolete building is obviously
one whose economically viable use or capacity has been substantially
hindered." However, the Town's definition of a nonfunctional or obsolete
building is overbroad. The mere fact a building may not be energy efficient or
may be expensive to heat does not necessarily render the current use or
capacity economically nonviable. Energy inefficiency could be substantial
evidence if the Town quantifies how the expense of an energy-inefficient
building renders the current use economically nonviable. 2. Inadequate
lot sizes. The
survey defined "inadequate lot sizes" to mean the "parcel does
not permit full development of the lot coverage and intensity of use permitted
by the zoning district in which it is located because the lot size is too small
to meet zoning requirements." The
trial court stated buildings and lots with this characteristic "are more
limited in their economic utility than properties without such
conditions." The issue before the Town, however, was not whether, as the
Town frames it, "if the lot were bigger, the owner would be allowed to
develop it more under current zoning." The issue was whether the current
lot size rendered *557 the current
use or capacity of the lot or its buildings economically nonviable. The survey
did not address this issue. A
lot is not deemed economically nonviable just because it cannot be developed to
the maximum size and intensity allowed under zoning. Many uses of land can be
economically viable even though they are unable to expand to the maximum size
and density allowed under their zoning classification. 3. Substandard
site design. The
building survey did not specifically define "substandard site
design," but defined "inadequate site improvement" as the
situation when the "site improvements are substandard such as inadequate
drainage facilities, landscaping, circulation and access, building siting,
etc." The discussion in the survey noted this criterion also included the
lack of truck loading areas, inadequate snow storage areas, and inadequate
parking. The survey claimed approximately 58 percent of the parcels in the Project
Area suffered from substandard site design. Regarding
parking, the survey claimed 95 percent of the parcels affected by substandard
site design, or approximately 56 percent of all parcels in the Project Area,
suffered from inadequate parking. The survey defined "inadequate
parking" as the situation when a "site does not provide either
adequate parking to serve the uses on the site or parking as required by the
Town's Parking Ordinance." The
trial court found that the following passage from the Final Report demonstrated
the economic effect of this physical characteristic: "Lack of parking and
the resulting parking overflow from inadequate parking to sites which meet
parking demand is a strong deterrent to economic development and business expansion,
particularly for commercial and industrial uses. Combined with the inadequately
sized lots, lack of parking and lack of adequate loading areas causes
inaccessibility, traffic congestion and lost business." However,
there is nothing in the record demonstrating that in fact the lack of parking
has actually resulted in decreased or lost business. Nowhere does the Town
produce facts demonstrating that even one particular business has lost
customers or revenue due to substandard site design. The language cited by the
trial court from the Final Report is the conclusory type of "jargon"
courts have criticized as making "no attempt at any specificity; the
reasons appear to have emerged from the consultants' word processor without any
*558 thought as to why any particular
parcel ..." is blighted under this criterion. (Gonzales v. City of Santa
Ana, supra, 12 Cal.App.4th at p. 1346; see also County of Riverside v. City of
Murrieta, supra, 65 Cal.App.4th at p. 627.) The
trial court also apparently relied on this additional language from the Final
Report: "The Town of Mammoth Lakes has identified the lack of snow storage
areas as a critical need during the ski season. The Town is located at an
elevation of 8,000 feet and receives an annual average snowfall of 200k inches
a year. Clearing streets and parking lots of snow causes huge stock piles of
snow along the sides of roadways and within parking lots. This further reduces
the available parking and loading areas." Again,
the Town fails to refer us even to one incident where it could factually prove
the accumulation of snow on parking lots actually caused a use of property to
be economically nonviable. We are sympathetic to the additional burdens born by
an alpine community. However, the language of the Community Redevelopment Law
sets an exacting standard communities must meet in order to establish a
redevelopment project area. The evidence in the Final Report of factors
preventing or substantially hindering the economically viable use or capacity
of buildings or lots fails to meet that standard. C.
Incompatible Uses. Plaintiffs
argue the evidence does not support a finding that the Project Area is
characterized by "[a]djacent or nearby uses that are incompatible with
each other and which prevent the economic development of those parcels or other
portions of the project area." (Health & Saf. Code, 33031, subd.
(a)(3), italics added.) When
the Town adopted Ordinance No. 97-08, it made no finding concerning the
existence of adjacent, incompatible uses existing in the Project Area. The
issue, however, was raised in the Final Report. Plaintiffs challenge the
sufficiency of evidence supporting the Final Report's conclusions on this
issue. The
Final Report states the building survey determined approximately 8.5 percent of
the parcels in the Project Area encompassing 55 buildings (approximately 4
percent of the total number of structures in the Project Area) suffer from
adjacent incompatible uses. The building survey defined incompatible land uses
to mean when the "parcel being considered is incompatible with adjacent
land uses. An example might be single family residential use next to an auto
repair shop." *559 The
Final Report further explains: "In several of the cases cited the impact
of commercial or industrial properties located adjacent to established single
family neighborhoods is the cause of the land use incompatibility. Elsewhere,
lack of adequate trash enclosures, absence of any landscaping or walls as
physical buffers, and hours of operation where noise becomes a nuisance to
neighboring residences constitute commonly encountered conflicts." The
trial court found the survey gave "a fair indication" of the use
conflicts. Regarding the requirement that the incompatible use prevented
economic development, the trial court stated the Town "was not required to
quantify or detail the economic development impact, but only incorporate it as
an element of the criteria." The
trial court erred on this point because the Town's criteria do not in fact
incorporate any aspect of the impact incompatible uses would have on economic
development. The criterion merely required the survey to document the existence
of what the person conducting the survey believed to be incompatible uses. Its
inquiry ended at that point. A
primary purpose of redevelopment is to eliminate blight which private
enterprise can not. (Health & Saf. Code, 33030, subd. (b)(1).) Interpreted
from that legislative mandate, subdivision (a)(3) of Health and Safety Code
section 33031 requires substantial evidence showing undeveloped or
underdeveloped land is not being developed by the private market because of
adjacent incompatible uses. Such evidence is wholly lacking in the record. The
Town cites various examples of incompatible uses tabulated in the survey. But
nowhere does the Town show how these uses are preventing economic development.
For all we know, despite their incompatibility, these uses are economically
viable. There must be some evidence showing it is the existence of incompatible
uses that creates the economic disincentive. The mere fact different types of
uses are separated by inadequate landscaping or lack adequate trash enclosures,
factors relied upon by the survey in determining incompatibility, does not
illuminate the economic disincentive the statute seeks to identify. It
is apparent the Town lacked substantial evidence by which it could determine
the Project Area was characterized by adjacent, incompatible uses that
prevented the economic development of those parcels or other portions of the
Project Area. D. Inadequate
Lot Size and Multiple Ownership. Plaintiffs
claim the evidence does not support a finding that the Project Area is
characterized by "[t]he existence of subdivided lots of irregular form *560 and shape and inadequate size for
proper usefulness and development that are in multiple ownership." (Health
& Saf. Code, 33031, subd. (a)(4). Adopting
Ordinance No. 97-78, the town council found the Project Area was characterized
by the following: "Limited economically viable use or capacity of subdivided
lots due to substandard size and irregularly-shaped parcels ...." At
trial and on appeal, the Town concedes the survey did not generate evidence to
support the finding of irregular lots in multiple ownership. We
thus find there is no substantial evidence on which the town council could
determine the Project Area is characterized by any of the statutory conditions
that can cause physical blight. V. Remaining
Blight Arguments Because
we have determined there is no substantial evidence to support the Town's
determinations the Project Area was predominantly urbanized and suffered from
at least one of the statutorily prescribed physical conditions which cause
blight, there is no substantial evidence by which the Town could determine the
combination of both physical and economic conditions causing blight are so
prevalent they can only be remedied through redevelopment. (Health & Saf.
Code, 33030, subd. (b)(1).) We thus do not address the parties' arguments on
this point, the existence of economic conditions causing blight, or the
inclusion of the airport and the industrial park, two areas not contiguous to
the main Project Area, in the redevelopment plan Project Area. The judgment of
the trial court shall be reversed. VI. Costs at
Trial Our
disposition of the redevelopment appeal nullifies the trial court's order on
costs in that action. (Monson v. Fischer, supra, 219 Cal. at p. 291.) Disposition The
judgments of the trial court in both the CEQA ppeal (case No. C029659) and the
redevelopment appeal (case No. C031043), including the awards of costs, are
reversed. The trial court is instructed to issue the *561 petitioned writ of mandate in the CEQA action and to enter
judgment in the redevelopment action in favor of plaintiffs. Plaintiffs
are awarded their costs on appeal. Blease,
Acting P. J., and Sims, J., concurred. *562
Cal.App.3.Dist.,2000. FRIENDS
OF MAMMOTH et al., Plaintiffs and Appellants, v. TOWN OF MAMMOTH LAKES
REDEVELOPMENT AGENCY et al., Defendants and Respondents; MAMMOTH MOUNTAIN SKI AREA
et al., Interveners and Respondents. FRIENDS OF MAMMOTH et al., Plaintiffs and
Appellants, v. TOWN OF MAMMOTH LAKES et al., Defendants and Respondents;
MAMMOTH MOUNTAIN SKI AREA et al., Interveners and Respondents. END
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