BALDWIN PARK HOMEOWNERS GROUP v. BALDWIN PARK REDEVELOPMENT AGENCY

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Court of Appeal, Second District, Division 5, California.

BALDWIN PARK HOMEOWNERS GROUP et al., Plaintiffs and Appellants, v. BALDWIN PARK REDEVELOPMENT AGENCY et al., Defendants and Appellants.

No. CIV. B029794.

Decided: January 18, 1989

Gronemeier, Barker & Huerta, Dale L. Gronemeier, Christopher A. Sutton, Pasadena, and Michael Sinkov, Los Angeles, for plaintiffs and appellants. J. Robert Flandrick, City Atty., Burke, Williams & Sorensen, and Virginia R. Pesola, Los Angeles, for defendants and appellants.

Plaintiffs challenge the validity of a redevelopment ordinance adopted by the City of Baldwin Park. They contend that the ordinance must be judicially invalidated because the city and its redevelopment agency failed to follow statutory requirements for the creation of a Project Area Committee (Health & Saf.Code, § 33385 et seq.). We agree with plaintiffs that the city misconstrued section 33385 when it appointed a Project Area Committee instead of allowing residents and community groups in the redevelopment area to form the Project Area Committee themselves. However, under the circumstances presented in this case, we find that this is not a sufficient ground for invalidating the redevelopment ordinance.

FACTS

In October of 1985, the Planning Commission for the City of Baldwin Park designated the boundaries of an 853–acre commercial and residential area known as the Sierra Vista Redevelopment Project. The purpose of the redevelopment project includes promoting commercial and industrial development, increasing municipal tax revenues, eliminating blighting influences, increasing local employment opportunities, and rehabilitating dilapidated structures in the area. Most of the 11,227 individuals residing in the redevelopment area have low or moderate incomes, and it was estimated that 6,647 of them could be displaced by implementation of the project.

Several weeks after the boundaries of the redevelopment area were designated, the city council adopted a resolution calling for the formation of a Project Area Committee (“PAC”) for the redevelopment area pursuant to Health and Safety Code section 33385. The city council also adopted bylaws for the PAC. These provide that the PAC “shall be an advisory body composed of seven members nominated by the Mayor of the City Council of the City of Baldwin Park ․ and confirmed by the City Council․ [¶] The Council shall appoint Committee members from resident/owner occupants, residential tenants, businessmen and members of existing organizations within the Project Area.”

To satisfy this directive, the city's director of housing and economic development, John Hemer, made telephone calls to various members of the community and asked them if they would like to serve on the PAC, or if they would recommend individuals to serve. Hemer did not know if any notices were mailed out regarding the formation of a PAC. He felt that formation of the PAC was solely in the hands of the city council. He also felt that the seven individuals he selected and presented for approval to the city council were representative of the community.1 City Manager Ralph Webb similarly testified that he believed the formation of the PAC was an appointive process by the city council.

After the individuals chosen by Hemer were approved by the city council, Hemer was assigned by the city manager to be the PAC's “staff person,” and provided it with documents, made verbal presentations and answered any questions regarding the status of the project. Hemer also explained to the PAC members what their role was. The PAC conducted four meetings for which Hemer drafted the minutes. The minutes reflect the PAC's concern about continuing public opposition to eminent domain and rezoning. Ultimately, the PAC members unanimously recommended, on June 18, 1986, that the city council adopt the redevelopment plan, provided that certain neighborhoods be deleted from the project and that other areas not be rezoned from residential to nonresidential. On July 2, 1986, the city council voted five to zero (with one abstention) to approve Ordinance No. 947, adopting and implementing the Sierra Vista Redevelopment Plan.

A special municipal election was consolidated with the general state-wide election held on November 4, 1986. Voters registered in Baldwin Park were asked whether or not Ordinance No. 947 adopting the Sierra Vista Redevelopment Project should be approved. A majority of voters favored the adoption of the redevelopment ordinance. As a result of the election, the city council, on December 2, 1986, deemed the redevelopment ordinance to have been adopted and ratified.

In the interim between the city council's adoption of Ordinance No. 947 and the electorate's ratification of it, plaintiffs filed this lawsuit challenging the validity of the ordinance. At trial, plaintiffs limited the issues to be tried to the propriety of the formation and existence of the PAC. The trial court concluded that plaintiffs failed to meet their burden of proving that the Sierra Vista PAC did not comply with the requirements of Health and Safety Code section 33385.

DISCUSSION

1. Formation of the Project Area Committee

[1] At the time of the events relevant to this appeal, Health and Safety Code section 33385 provided that “The legislative body of a city or county shall call upon the residents and existing community organizations in a redevelopment project area, within which a substantial number of low- and moderate-income families are to be displaced by the redevelopment project, to form a project area committee. The project area committee shall include, when applicable, residential owner occupants, residential tenants, businessmen, and members of existing organizations within the project area. The members of the committee shall serve without compensation. [¶] The legislative body shall approve a representative project area committee in each project area within 60 days after the project area is selected․” (Emphasis added.)2

In order to construe any law, “we look first to the words of the statute, giving them their usual and ordinary meaning.” (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501, 247 Cal.Rptr. 362, 754 P.2d 708.) Looking at the plain language of section 33385, we are mystified by the manner in which it was interpreted, first by defendants and then by the trial court. Perhaps we should start by emphasizing what the statute does not say. Contrary to Mr. Webb's and Mr. Hemer's interpretation, the statute does not say that the PAC members are to be appointed by the city council. Had the Legislature intended for the city council to appoint the PAC members, it undoubtedly would have specified as much. (See, e.g., Health & Saf.Code, § 33110: The mayor, with the approval of the legislative body, “shall appoint five persons” as members of the redevelopment agency.) Contrary to the implication of the trial court's interpretation, the statute does not say that government officials can discharge their duties by making a few telephone calls to potential PAC members.

Boiled down to its essentials, what the statute says is this: The legislative body must CALL UPON citizens TO FORM a project area committee. In other words, the project area committee must be created by residents and members of existing organizations within the redevelopment area. According to the statute, the role played by the legislative body is, first, to notify residents and local organizations of the need to select PAC members from the categories listed in the statute (residential owner occupants, tenants, businessmen and organization members).3 The legislative body's second role is to approve the PAC proposed by community members and organizations, which should include, if possible, at least one individual from each of the specified categories.4

Defendants argue that if we construe section 33385 to mean what it plainly says, an “absurd result” will be produced because there is no guarantee that the local citizenry will form a PAC when asked to do so. Certainly, it is an uncommon statute which seeks the kind of unremunerated, voluntary citizen participation contemplated by section 33385. The Legislature, however, may well believe that an uncommon community event—the often massive destruction and rehabilitation of large portions of the community—calls for an uncommon statute such as section 33385, which provides a mechanism for participation in the redevelopment process by the citizens who are directly affected by it. As defendants can attest, their proposed 853–acre redevelopment plan hardly met with apathy. In fact, vigorous public opposition ultimately caused the city council to delete all single-family residences from the redevelopment plan. Lack of public interest is unlikely to be a factor in implementing section 33385. It clearly was not lacking in Baldwin Park.

Though we doubt that section 33385 is as difficult to implement as defendants suggest, we can conceive of situations which would require the local legislative body to play a more active role in the formation of a PAC. If, for example, no one in the community responded to an initial “call” to form a PAC, local officials would need to stimulate public interest in forming a PAC. Short of directly soliciting particular individuals to serve, this might include contacting leaders of public service, professional and commercial organizations to have them encourage their members to serve. At the other end of the spectrum, if the call to form a PAC produced too many prospective PAC members or groups competing for recognition as the PAC, the local legislative body would need to exercise discretion in approving a PAC which fairly represents the categories of individuals specified in section 33385.

In sum, defendants—by appointing the members of the Sierra Vista PAC instead of calling upon residents and community organizations to form the PAC themselves—failed to comply with section 33385, and the trial court erred as a matter of law in concluding that the procedure mandated by section 33385 had been followed.

2. Validity of the Redevelopment Ordinance

Having concluded that defendants followed an improper procedure in creating the Sierra Vista Project Area Committee, we now turn to the question of whether this improper procedure requires that the redevelopment ordinance approved by the city council and the electorate of Baldwin Park be invalidated. Plaintiffs contend that their constitutional rights were violated by defendants' failure to comply with section 33385.

In a validation action such as this, “The court hearing the action shall disregard any error, irregularity, or omission which does not affect the substantial rights of the parties.” (Code Civ.Proc., § 866; Health & Saf.Code, § 33501; Code Civ.Proc., § 860.) In the context of a challenge to a redevelopment plan, our Supreme Court has stated that this language “is in the nature of a curative clause,” and that “ ‘[a] curative statute or clause may preclude all investigation except “the single inquiry whether, in the case presented, the effect of applying the statute is to deprive the party of his property without due process of law.” ‘ “ (In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 44, 37 Cal.Rptr. 74, 389 P.2d 538. Accord: De Jong v. Pasadena Unified School Dist. (1968) 264 Cal.App.2d 877, 884, 70 Cal.Rptr. 913.)

The facts adduced in this case indicate that plaintiffs were given notice and an opportunity to be heard before the redevelopment plan was approved by the city council. For instance, in May of 1986, the Redevelopment Agency sent a notice of its intention to start proceedings to establish the Sierra Vista project to property owners within the affected areas and invited them to attend a public hearing on the proposed redevelopment. Members of the community aired their sentiments about the project at public hearings before the planning commission and the city council. Anyone who wished to speak was invited to do so. Plaintiff Lovejoy stated his objections to the project at at least one of these hearings. Subsequently, all single-family dwellings were deleted from the redevelopment plan. Thus, not only did plaintiffs have notice of the public hearings on the redevelopment project, the hearings themselves clearly accomplished their intended purpose of effecting the public will.

Moreover, any procedural defect affecting plaintiffs' right to express themselves was cured by the referendum process permitted by sections 33365, 33378 and 33450.5 The referendum is the exercise by the people of their reserved legislative power. (Blotter v. Farrell (1954) 42 Cal.2d 804, 809, 270 P.2d 481.)

Once a redevelopment plan becomes the subject of a referendum, “ ‘the matter has been removed from the forum of the Council to the forum of the electorate. The proponents and opponents are given all the privileges and rights to express themselves in an open election that a democracy or republican form of government can afford to its citizens․ It is clear that the constitutional right reserved by the people to submit legislative questions to a direct vote cannot be abridged by any procedural requirement․’ “ (Associated Home Builders Etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 592, 135 Cal.Rptr. 41, 557 P.2d 473, quoting Dwyer v. City Council (1927) 200 Cal. 505, 516, 253 P. 932.) “ ‘[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’ “ (18 Cal.3d at p. 591, 135 Cal.Rptr. 41, 557 P.2d 473.)

Plaintiffs insist that the electorate's adoption of the redevelopment ordinance was illegal, or denied a class of citizens due process or equal protection. They fail to explain why the referendum was illegal when this is, in fact, the proper statutory manner in which to proceed in localities which are contemplating adoption of a redevelopment plan. Nor do they offer any evidence that their right to be heard during an open election was stymied. Insofar as their equal protection claim is concerned, California's referendums “demonstrate devotion to democracy, not to bias, discrimination, or prejudice․ [A] lawmaking procedure that ‘disadvantages' a particular group does not always deny equal protection. Under any such holding, presumably a State would not be able to require referendums on any subject unless referendums were required on all, because they would always disadvantage some group.” (James v. Valtierra (1971) 402 U.S. 137, 141–142, 91 S.Ct. 1331, 1334, 28 L.Ed.2d 678.) Finally, “[i]t must be presumed that the electorate will act in the interests of the entire city, and of the part to be affected by the proposed legislation. If the law operates more directly upon only a part of the citizens evil intent or design cannot be presumed.” (Dwyer v. City Council, supra, 200 Cal. at p. 514, 253 P. 932.)

Under the circumstances, we decline to invalidate the Baldwin Park redevelopment ordinance despite the city council's procedural errors in implementing section 33385.6

3. Cross–Appeal on Costs

The City and its redevelopment agency contend that they are entitled, as prevailing parties, to recover from plaintiffs the cost of preparing a reporter's transcript of three public hearings held before the redevelopment plan was adopted and before this lawsuit was instituted. The trial court struck the cost of these transcriptions from the cost bill after expressing doubt that it was reasonably incurred in connection with this action.

As noted above, this is an action under Health and Safety Code section 33501 to determine the validity of a redevelopment plan and the proceedings in any way connected to the redevelopment process. Section 33501 incorporates by reference Chapter 9 (commencing with § 860) of Title 10 of Part 2 of the Code of Civil Procedure which generally governs this type of proceeding. Within the general statutes relating to validating actions, Code of Civil Procedure section 868 governs the issue of costs. It reads, “The costs of any proceeding or action pursuant to this chapter may be allowed and apportioned between the parties or taxed to the losing party in the discretion of the court.”7

In this case, the city stated during the hearing on the motion to tax costs that it unilaterally decided to report and transcribe all that transpired during the extensive public meetings on the redevelopment proposal to protect itself because there was a “threat” or “likelihood” of litigation. The trial court apparently took the view that this expense was unreasonable or unnecessary, made, as it was, in anticipation of litigation and not during an administrative proceeding to consider any claims being asserted by plaintiffs. The trial court's decision to apportion this cost to the city and redevelopment agency was not an abuse of discretion.

DISPOSITION

The judgment is affirmed. Each side to bear its own costs on appeal.

FOOTNOTES

1.  The seven individuals either were residents of the original project area, conducted business within it, or were “members of existing organizations within the project area.” (Health & Saf.Code, § 33385.) The seven were a potential developer, a member of the chamber of commerce, two local business owners, two residents active in a “neighborhood watch” program, and a school district representative. Three of the seven individuals lived within the redevelopment area.

2.  The city would not be required to form a PAC if the redevelopment project does not displace a substantial number of low- and moderate-income families (§ 33385). That does not appear to be the case here, because the city does not attempt to argue that it was not required to form a PAC.

3.  The Legislature recently amended section 33385 to clarify what procedures must be followed by the local legislative body to effectuate notice of the need to form a PAC (Stats.1988, ch. 1404). The amendment, which became effective on January 1, 1989, requires that the legislative body publicize the opportunity to serve on the PAC, conduct at least one public meeting to further formation of the PAC, and mail notice of the need to form a PAC to all residents and businesses within the affected area.

4.  This two-step process is echoed in section 33385.5, which requires that the redevelopment agency “call upon” the project area committee to expand its own membership if a proposed amendment to the redevelopment plan would enlarge the project area. Once the PAC selects its additional members, it must then submit the names to the legislative body, which may approve the proposed new members after ascertaining that the PAC is representative.

5.  Sections 33365 and 33450 provide that ordinances adopting or amending a redevelopment plan “shall be subject to referendum as prescribed by law for the ordinances of the legislative body.” For unchartered cities, the detailed procedures to be followed are contained in the Elections Code. (Cal. Const. Art. II, § 11; Elec.Code, § 4000 et seq.) Section 33378 requires that the ballot language clearly indicate the effect of a “Yes” or “No” vote on the measure, that referendum petitions bear a specified number of valid signatures in cities or counties over 500,000 in population, and that the ballot pamphlet contain certain information regarding the measure. Plaintiffs do not argue that improper procedures were followed in the Baldwin Park referendum on its redevelopment plan.

6.  Plaintiffs also claim the redevelopment ordinance is invalid because the PAC's membership was not from within the project area. If true, such a circumstance would be a more serious deficiency in the PAC formation because of the Legislature's apparent intent that the PAC represent those persons most directly affected by redevelopment such as the residents and operators of businesses and other enterprises within the project area. However, there is sufficient evidence to support the trial court's conclusion that the PAC in this case was comprised of members who met the criteria of Health and Safety Code section 33385. (See ante, fn. 1.) The point is, in any event, moot in light of our conclusion that the referendum cured defects relating to representation.

7.  The costs provision contained in Code of Civil Procedure section 1094.5, subdivision (a), which the city relies upon in support of its argument, is inapposite here.

BOREN, Associate Justice.

LUCAS, P.J., and ASHBY, J., concur.