Emmington v. Solano County Redevelopment Agency

Opinion

Appellant Margaret Emmington appeals a judgment validating the Collinsville-Montezuma Hills Redevelopment Project (redevelopment plan) involving approximately 10,350 acres of land in Solano County primarily devoted to agricultural use.^[1] The redevelopment plan proposes

The setting for the redevelopment plan is a 10,350-acre site in the unincorporated Montezuma Hills area of Solano County. The project area is bounded generally on the west by the Suisun Marsh Protection Area, on the north by Talbert Lane, and on the south and east by the Sacramento River. Within the project area, most of the land is held by five large owners. Southern Pacific Railway owns 2,800 acres, Pacific Gas and Electric Co. owns 1,000 acres, Dow Chemical owns 2,800 acres, Wells Fargo holds 500 acres in trust, and Dozier and Pressley Company owns 2,000 acres. These owners lease most of the land for dry farming,^[3] with farms averaging 800 acres in size.

The project area also includes the Towns of Collinsville and Birds Landing. Collinsville consists of approximately 27 acres and is located along the Sacramento River. It was once a small fishing community, but is now a single-family residential area with a number of vacant lots. Birds Landing consists of roughly eight acres and includes both single-family homes and several neighborhood commercial operations. With the exception of Collinsville and Birds Landing, there is very little development in the project area.

The project area is distinguished not so much by its condition as by its location. Being near the Sacramento River, it is an ideal location for commercial development—a fact which has not gone unnoticed. The land within the redevelopment project area was described by planning consultants “as one of the last Bay region opportunities for the development of large-scale, water-oriented industry____” Four years before the area was slated for redevelopment, it was targeted for development. In August 1979 the Solano County Board of Supervisors adopted the Collinsville-Montezuma

However, the expected development of the area by private industry failed to materialize. In 1983 respondents began to consider the Community Redevelopment Law as a means of stimulating development. On July 19, 1983, the Solano County Board of Supervisors passed a resolution declaring the project area^[4] needed study “to determine if a redevelopment project or projects within the area are feasible.” At this point there were severe time constraints imposed on the procedural steps necessary to adopt a redevelopment plan for the project area. Health and Safety Code section 33320.1 had been amended effective January 1, 1984, to limit the use of the redevelopment process to areas that were “predominantly urbanized.”^[5] Thus, after 1983 (which was then less than six months away) the project area could not be subject to a redevelopment plan because it did not meet the statutory requirements.

A redevelopment plan was submitted to the board of supervisors describing the condition of the project area as “blighted.” This conclusion was based primarily on the “lack of adequate public improvements, public facilities and utilities to serve existing and planned development,” and the fact that many properties in the project area were subject to flooding. The proposed redevelopment projects included an industrial road (estimated cost $10.64 million), rail line reconstruction (estimated cost $11.9 million), and construction of a deep draft shipping berth (estimated cost $8.16 million). The plan further authorized the redevelopment agency to install and construct public improvements, public facilities and public utilities needed for plan implementation. The plan provided that the redevelopment agency could acquire real property located in the project area through the power of eminent domain. (See Health & Saf. Code, § 33037.)

Like most redevelopment plans, the primary source of revenue to repay project costs would be from tax increment financing. Through the use of tax

The environmental effects of the project components were addressed in a five-page initial study. The initial study concluded that 19 existing environmental impact reports and planning documents prepared over the course of 8 years adequately identified the environmental impacts of the redevelopment plan and ways to mitigate their significant effects for purposes of compliance with the California Environmental Quality Act. On December 6, 1983, the board of supervisors made findings with respect to the significant environmental impacts of the redevelopment project, the feasible mitigation measures, and the overriding considerations it felt justified proceeding with the project.

On January 13, 1984, appellant filed the instant action, primarily alleging the project area was not a proper area for redevelopment and that the environmental review process was inadequate. After the trial court denied relief, appellant noticed this appeal.

To qualify as a proper subject of redevelopment, a project area must “be blighted when considered as a whole.” (Regus v. City of Baldwin Park, supra, 70 Cal.App.3d at p. 981.) Conditions of blight must “predominate” and must “injuriously affect the entire area.” (Health & Saf. Code, § 33321; Regus v. City of Baldwin Park, supra, at p. 981.) Only a “compelling economic need” (Redevelopment Agency v. Hayes (1954) 122 Cal.App.2d 777 , 793 [ 266 P.2d 105 ]) can justify using the “extraordinary power” of redevelopment. (Regus v. City of Baldwin Park, supra, at p. 979.) An agency’s “expectation of economic improvement and the prospect of speculative gain” furnish an insufficient basis for the use of the powers of redevelopment. (Regus v. City of Baldwin Park, supra, at p. 980.)

As we are reminded repeatedly by respondents, we must uphold the finding of blight if supported by substantial evidence. (See In re

In Sweetwater the Supreme Court reversed the decision of a city and its redevelopment agency declaring a 130-acre golf course to be a blighted area and approving a redevelopment plan to put a 70-building shopping center in its place. The golf course was subject to flooding, and the driving range had been closed for repairs for as long as three weeks due to flood damage. The value of the land was depressed compared to other parts of the city, and the property was encumbered by numerous public and private easements, making private development “infeasible.” (Id., at p. 279.) Nevertheless, the Supreme Court pointed out that the golf course remained “marginally profitable” and furthered the Legislature’s policy toward preservation of open-space land. The court concluded the golf course was not blighted because the alleged blighting factors had “not ended its present economic use”; and therefore the area did not meet the criteria for redevelopment. (Ibid.)

After reviewing the legislative scheme.of the Community Redevelopment Law, the Sweetwater court made several pertinent findings. First, and most importantly, it stressed that “the Legislature made clear its intent that a determination of blight be made—not on the basis of potential alternative use of the proposed area—but on the basis of the area’s existing use.” (Id., at p. 278, italics added.) Second, the mere fact that a project area exhibits a blighted condition, such as flooding, does not automatically bring it within the terms of the redevelopment statute. The project area must constitute a serious economic or social liability. (Id., at p. 279.) Third, the court stressed that the redevelopment statute should not 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.’ ” (Id., at p. 278.)

The determination of blight in the instant case was framed in statutory language. The board of supervisors found the project area was characterized by “properties which suffer from economic dislocation and disuse” because of the existence of (1) lots which are subject to severe flooding;^[9] and (2)

These findings were based in large part on the redevelopment agency’s report to the board of supervisors concerning blight in the project area. That report stated “[a]ll parcels in the Project Area were determined to be blighted due to the lack of public improvements, facilities and utilities needed to carry out provisions of the [area plan].” Needed infrastructure included “maintenance and improvement of existing roads, industrial road construction, rail line construction, deep water access and berthing facilities, and sewage facilities.” (Italics added.) The report noted that “[ajccess to most of the area is poor to nonexistent and infrastructure is inadequate to serve planned industrial use.” (Italics ours.) It was also stressed that substantial portions of the project area lie within the 100-year flood plains of the Sacramento River and various creeks and are subject to flooding.^[10] There was evidence that the levees protecting the project area from flooding are deteriorating and that the costs of maintaining them imposed a burden on property owners. Out of 171 parcels in the project area, 19 exhibited some form of structural blight.^[11] As previously noted, the redevelopment agency concluded “[tjhe California redevelopment process is necessary to remove the blighting factors which are hindering the full economic utilization of the land.” (Italics added.)

If one adopts this report’s frame of reference, and evaluates any sizeable rural area for a highly intensive industrial use, the land will invariably be found to be blighted. What is missing from the redevelopment agency’s report and from the record taken as a whole is evidence that the asserted blighting conditions substantially burden the existing uses of the area for agriculture.

Overall, the thrust of the information compiled on the project area is that Solano County will be improved if the land is developed for water-related industry rather than allowing it to remain in agricultural use. While this determination might be pertinent to the adoption of the area plan and to changes in land use designations from agricultural to industrial, it is irrelevant to a determination of blight. (See Sweetwater Valley Civic Assn. v. City of National City, supra, 18 Cal.3d at p. 277-278; Regus v. City of Baldwin Park, supra, 70 Cal.App.3d at p. 979.)

Moreover, it is the declared policy of this state that even though the area is blighted, it should not be subject to the redevelopment process unless redevelopment could not reasonably be expected by private enterprise acting alone. (Health & Saf. Code, § 33032.) The record reveals that the vast majority of the project area is already owned by large, well-financed private interests. The fact that private development did not occur immediately after the project area’s change in land use designation to permit industrial uses is not necessarily due to a need for public participation and assistance. We

In conclusion, although the project area exhibited some of the conditions of blight enumerated in the Community Redevelopment Law, there was no showing these conditions had substantially interfered with the land’s present agricultural use or that the conditions had rendered the project area a serious social or economic liability to the community. Instead, respondents have admitted forthrightly that the redevelopment plan was devised and adopted as a funding mechanism to “implement” the area plan after anticipated industrial development failed to occur.^[14] In other words, the record reveals the redevelopment process was being utilized, not to overcome blight, but to overcome problems attracting industry to the area. Such a purpose is insufficient to justify unleashing the “extraordinary powers” of redevelopment. (Regus v. City of Baldwin Park, supra, 70 Cal.App.3d at p. 979.)

Although the conclusion that the project area was not blighted necessitates reversal of the judgment and makes resolution of the remaining issues unnecessary, a few general comments on the environmental review process undertaken by respondents are in order. Appellant raises a number of technical deficiencies under the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21000 et seq.) However, her overriding objection concerns respondents’ use of existing environmental impact reports (EIR’s) and planning documents to analyze the environmental impacts of the redevelopment plan. Appellant claims the procedure employed by respondents failed to inform the public and governmental decisionmakers of the environmental consequences of carrying out the redevelopment plan.

CEQA was enacted by the Legislature to ensure “ ‘ “that environmental considerations play a significant role in governmental decision-

A redevelopment plan falls within the scope of CEQA. (Health & Saf. Code, § 33352, subd. (i).) “An EIR submitted to a redevelopment agency must serve as the ‘alarm bell’ alerting the agency to potential adverse environmental impacts arising from projects designed to improve the environment in blighted areas.” (Dusek v. Redevelopment Agency (1985) 173 Cal.App.3d 1029 , 1036-1037 [ 219 Cal.Rptr. 346 ].) It is undisputed that in the instant case a formal EIR analyzing the environmental effects of the redevelopment plan was neither prepared nor submitted for public review by respondents. Respondents contend, however, that the environmental consequences of the redevelopment plan were adequately analyzed by various planning documents and EIR’s already in existence.

CEQA Guidelines establish that an agency “may use an earlier EIR prepared in connection with an earlier project to apply to a later project, if the circumstances of the projects are essentially the same____[H] owe ver, it must find that the environmental effects of the projects are similar enough to warrant the same treatment----” (Cal. Admin. Code, tit. 14, § 15068.)^[15] In administering its responsibilities under CEQA, respondents prepared a five-page initial study concluding that nineteen previously prepared EIR’s and planning documents spanning the course of eight years adequately addressed the environmental impacts of the redevelopment plan. These 19 documents contain well over 2,000 pages. Some of the documents deal with relatively general subjects such as the area plan; other documents discuss specific projects such as Dow Chemical’s ill-fated plant proposal. The vast majority of these documents analyze geographic areas much larger than the 10,350-acre redevelopment project area. The initial study makes no attempt to summarize the anticipated environmental effects of the redevelopment plan nor does it make an attempt to cite specifically where this information can be found. An interested citizen is faced with laboriously sorting through over 2,000 pages of raw data and then drawing his or her own conclusions about which information is pertinent to this project’s likely effect on the environment. Assuming arguendo that respondents were entitled to