Reset A A Font size: Print

District Court of Appeal, First District, Division 1, California.

Ralph BERGGREN and Edna M. Berggren, Husband and wife, Bidou Baking Co., Inc., a corporation, Richard R. Ruscigno and Mary Ruscigno, his mother, Frank Quement and Louise M. Quement, his wife, Plaintiffs and Appellants, v. Paul MOORE et al., Defendants and Respondents.

Civ. 20754.

Decided: October 15, 1963

Burnett, Burnett, Keough & Cali, by John M. Burnett, San Jose, for appellant. Ferdinand P. Palla, City Atty., Richard K. Karren, Sr. Asst. City Atty., Harry Kevorkian, Asst. City Atty., San Jose, for respondent City Council of the City of San Jose and the members thereof. Morgan, Beauzay & Holmes, San Jose, for respondent Redevelopment Agency of the City of San Jose.

In an action for mandamus and/or certiorari and for declaratory relief, plaintiffs appeal from judgment in favor of defendants.


1. In the adoption of a city redevelopment plan, is the City of San Jose such a state agency as to entitle plaintiffs to a trial de novo type review in the superior court, of the city council's action?

2. Were plaintiffs entitled to cross-examine witnesses under oath at the Redevelopment Agency hearing?

3. Was the city council's finding of economic feasibility supported?

4. Were plaintiffs entitled to examine individual appraisals considered by the agency?

5. Was the council's finding of ‘blighted’ area supported?


This action brought by property owners within the affected urban redevelopment area attacks the validity of proceedings before the Redevelopment Agency of the City of San Jose and before its city council, in the adoption and enactment of an urban renewal plan enveloping a certain large portion of the City of San Jose and known as the ‘Park Center Project.’ Eleven property owners within the area were permitted to intervene in this action in support of the validity of the project. At the trial, the superior court refused to grant a trial de novo or to exercise its independent judgment, but applied the ‘substantial evidence’ rule.1 The trial court rendered judgment declaring the ordinance adopting the redevelopment plan to be valid and denying plaintiffs any relief. The court also entered a detailed memorandum opinion discussing the many contentions raised by plaintiffs. On this appeal plaintiffs raise only certain of those contentions. We will limit our determination to the latter.


In Andrews v. City of San Bernardino (1959), 175 Cal.App.2d 459, 462, 346 P.2d 457, 459, it was held that cities and their Redevelopment Agencies when ‘operating pursuant to the Community Redevelopment Law * * * function as administrative arms of the state because they pursue a state concern and effectuate a state legislative objective.’ Plaintiffs contend that therefore and because of article VI, section 1 of the Constitution, the council cannot exercise quasi-judicial powers; hence, say they, the rules with respect to review of statewide agencies, exercising statewide jurisdiction, apply (e. g. Moran v. State Board of Medical Examiners (1948), 32 Cal.2d 301, 196 P.2d 20).

In Babcock v. Community Redevelopment, Agency (1957), 148 Cal.App.2d 38, p. 49, 306 P.2d 513, p. 520 (hearing denied), the majority opinion stated that ‘a court is not empowered to substitute its determination for the determination of the agency or the legislative body in the absence of abuse of discretion, fraud, collusion, or bad faith on the part of the agency or the legislative body’, and upheld the trial court's sustaining of a demurrer to the complaint which sought declaratory relief because it was contended that the jurisdictional prerequisites for the redevelopment of the proposed area did not exist. Justice Vallee in a concurring opinion, while concurring with the result, did not agree with the above quoted statement, based upon the fact that if the statement in the complaint that the Redevelopment Agency was a ‘state agency’ were true, the court in a mandamus proceeding to review a final order of the agency would be authorized to exercise its independent judgment on the evidence. The majority opinion seemed to hold in effect that the rule of state agencies did not apply. Justice Vallee did not determine whether the Redevelopment Agency was a ‘state agency,’ merely stating, ‘The agency says it is a ‘State Agency.” (P. 52 of 148 Cal.App.2d, p. 522 of 306 P.2d.)

Despite the fact that redevelopment is of statewide concern, the community's agency and its city council do not exercise statewide jurisdiction. For that reason, the scope of the review of their action is not that applying to agencies having statewide jurisdiction. It is only because of statewide jurisdiction that the actions of boards are subject to reappraisal in the courts by means of a trial de novo. (See Savage v. Sox (1953), 118 Cal.App.2d 479, 485–487, 258 P.2d 80.) Moreover, redevelopment is not solely of statewide concern; it is also of municipal concern. (See 25 Ops.Cal.Atty.Gen. 67, 69.) Thus, since the city council has only municipal jurisdiction and since the matter is of municipal concern, although not solely, it is erroneous to say for the purposes of review that the rules with respect to statewide agencies having statewide jurisdiction apply.

In Hunter v. Adams (1960), 180 Cal.App.2d 511, 517, 4 Cal.Rptr. 776, 780, the court said of the Community Redevelopment Law, ‘It should be noted that while the act is a matter of state interest and its implementation a state objective, the local operation of the act is ‘made contingent upon determination by the local authorities that conditions there require its acceptance and operation.’ Housing Authority of Los Angeles County v. Dockweiler, 14 Cal.2d 437, 446, 94 P.2d 794, 799; Fellom v. Redevelopment Agency, supra, 157 Cal.App.2d 243, at pages 247 and 248, 320 P.2d 884 at pages 887 and 888. The agency and the local legislative body have the authority to designate redevelopment and project areas, and to prepare and adopt preliminary and final redevelopment plans in implementation of the act.'

As pointed out in the scholarly and exhaustive opinion of the trial judge in this case, Honorable Edwin J. Owens, ‘* * * it is noted that nowhere has any Court ever designated either a local development agency or a local City Council as a ‘statewide agency’. It would be noted that the three cases cited by Justice Vallee [in Babcock, supra] all involve State-wide administrative agencies. The statute itself (Health and Safety Code Section 33200, et seq.) declares that the redevelopment agency in each community is a public body corporate and politic known as the redevelopment agency of the community. Each agency, therefore, is a local body politic. Certainly this is equally true of a City Council. The Fellom case (supra [157 Cal.App.2d 243, 320 P.2d 884]) which declared that the agency and the City Council in a redevelopment matter were acting as arms of the State nevertheless held in effect that the ‘substantial evidence’ rule rather than the ‘independent judgment’ rule governed the review of the actions of a local development agency, the Court quoting with approval from the case of Berman v. Parker, 348 U.S. 26 [75 S.Ct. 98] (99 L.Ed. 27) in which the U. S. Supreme Court said: ‘In the present case the Congress and its authorized agencies (District of Columbia Redevelopment Land Agency, National Capitol Planning Commission and District Commissioners) have made determinations that take into account a wide variety of values. It is not for us to reappraise them.’ Certainly this language from the Berman case quoted with approval of the Fellom case does not sound like the ‘independent judgment’ rule.' (See also Brock v. Superior Court (1952), 109 Cal.App.2d 594, 241 P.2d 283.)

It is urged that the decision in Babcock, supra, 148 Cal.App.2d 38, 306 P.2d 513 was legislatively annulled by the amendment in 1957 of section 33746, Health and Safety Code,2 and that by the amendment the Legislature intended to provide for a broader scope of review than that existing prior thereto, and that the trial court in a proceeding to review the action of a Redevelopment Agency should try the issues de novo. We do not agree.

A study of the history of section 33746 from the time of its adoption in 1951 to date shows that it deals primarily with limitations of the time of bringing actions to test the validity of proceedings by a Redevelopment Agency. The 1957 amendment stated that the ‘findings and determinations' of the Redevelopment Agency and city council ‘may be judicially reviewed by a court of competent jurisdiction’ provided action be brought within 90 days of the adoption of the ordinance, whereas theretofore the section had stated, ‘Any action to contest the validity of the proceedings' and limited the bringing of the action to 30 days. In 1959, the amendment reduced the action period to 60 days. Then in 1961 the section was amended, striking out any reference to ‘review’ and stating, ‘No action attacking or otherwise questioning the validity of any redevelopment plan,’ etc. could be brought after 60 days. During the time the reference to ‘review’ was in the section, nothing was said concerning the scope of that review, nor to indicate that the rule of local agency review was to be changed.

However, as this case was tried after the 1961 amendment took effect, we are not concerned with the interpretation of the 1957 and 1959 amendments for the reason that all the amendments to section 33746 were procedural and therefore the provisions of the 1961 amendment applied to the proceedings in this case. “When a new statute deals with procedure only, it applies to all actions—those which are pending, and future actions.” (Sour v. Superior Court (1934), 1 Cal.2d 542, 545, 36 P.2d 373, 374; see also Angeli v. Lischetti (1962), 58 Cal.2d 474, 478, 24 Cal.Rptr. 845, 374 P.2d 813; San Bernardino County v. Industrial Accident Comm. (1933), 217 Cal. 618, 628, 20 P.2d 673.) Whatever type of review the Legislature had contemplated by its 1957 and 1959 amendments did not apply in 1961 at the time of the trial herein.

Plaintiffs contend that by the amendment of section 1, article VI, California Constitution, in 1950, omitting from the section the following language concerning the tribunals in which the judicial power of the state is vested, ‘and such inferior courts as the legislature may establish in any incorporated city or town, township, county or city and county’ the Legislature ‘cannot delegate judicial powers or make a fact-finding agency a quasi-judicial tribunal except to 479, 488, 258 P.2d 80, 85, we pointed the delegation of judicial powers.’ In Savage v. Sox, supra, 118 Cal.App.2d 479, 258 P.2d 80, 85, we pointed out: ‘The purpose of the 1950 amendment to that section as shown by the arguments to voters was to reduce the number of inferior courts in the state, not to interfere in anywise with the quasi-judicial powers of boards and officers who are not courts in the sense of that section. See Chinn v. Superior Court, 156 Cal. 478, 482, 105 P. 580.’ We held, further, that as to municipal affairs, the amendment did not take away the quasi-judicial functions of cities and counties. The courts of this state, with full knowledge of the 1950 amendment, have held subsequently thereto that local agencies, including those not organized pursuant to charter, may exercise quasi-judicial powers and that in the review of their actions the substantial rule applies. (See Albonico v. Madera Irrigation Dist. (1960), 53 Cal.2d 735, 739, 3 Cal.Rptr. 343, 350 P.2d 95; Atchison, etc., Ry. Co. v. Kings County Water Dist. (1956), 47 Cal.2d 140, 143, 302 P.2d 1; Jenner v. City Council (1958), 164 Cal.App.2d 490, 499, 331 P.2d 176; Siller v. Board of Supervisors (1962), 58 Cal.2d 479, 481, 25 Cal.Rptr. 73, 375 P.2d 41; Pranger v. Break (1960), 186 Cal.App.2d 551, 559, 9 Cal.Rptr. 293; Takata v. City of Los Angeles (1960), 184 Cal.App.2d 154, 159, 7 Cal.Rptr. 516; Sultan Turkish Bath, Inc. v. Board of Police Com'rs (1959), 169 Cal.App.2d 188, 193, 337 P.2d 203.)

Insofar as the hearing before the city council was quasi-legislative, the review of its action requires the application of the substantial evidence rule. (See Brock v. Superior Court, supra, 109 Cal.App.2d 594, 241 P.2d 283.)

Plaintiffs were not entitled to a trial de novo but to a review of the evidence presented to the city council and a determination as to whether or not, based on that record, substantial evidence supported the council's determination. Inasmuch as the court found the agency and the city council did not act fraudulently, all that it properly could do is to determine whether or not substantial evidence supported the action of the city council. This it did.


At the hearing before the Redevelopment Agency the agency refused to require the persons appearing and speaking at such hearing to be sworn and refused to permit plaintiffs to cross-examine such witnesses. It invited questions to be asked of them through the agency's chairman. However, plaintiffs did not avail themselves of this invitation. Section 33700 provides, in part: ‘Before the adoption of a redevelopment plan by the agency, the agency shall conduct a public hearing on it.’

At the hearing before the city council held pursuant to section 33700, all the witnesses called by the agency were sworn, and were cross-examined under oath by the plaintiffs. Plaintiffs apparently do not complain of this hearing.

With respect to the right of cross-examination at administrative proceedings, it is firmly established that the right exists at a hearing quasi-judicial and adversary in nature. (La Prade v. Department of Water and Power (1945), 27 Cal.2d 47, 5152, 162 P.2d 13; Langendorf, etc., Bakeries v. Industrial Accident Comm. (1948), 87 Cal.App.2d 103, 195 P.2d 887.) On the other hand, where the proceeding is quasilegislative in nature, a hearing of a judicial type is not required and if such a hearing is allowed by statute it is not restricted by the rules applicable to quasi-judicial adversary proceedings. (Franchise Tax Board v. Superior Court (1950), 36 Cal.2d 538, 548–549, 225 P.2d 905; City Council of City of Santa Barbara v. Superior Court (1960), 179 Cal.App.2d 389, 393, 3 Cal.Rptr. 796; and see Brock v. Superior Court, supra, 109 Cal.App.2d 594, 606–608, 241 P.2d 283.)

Section 33200 creates a redevelopment agency in each community. The agency does not function unless the city council enacts a resolution declaring that there is a need for such agency to function in the community. (§ 33201) (This was done by the San Jose City Council.) After such resolution by the city council the city council may delegate to the agency the authority to designate redevelopment areas. (§ 33480) (This, likewise, was done by the city council.)

Section 33481 provides that the resolution (in this instance by the agency itself by delegation of authority) shall contain the following: (a) a finding that the area designated is a blighted area, the redevelopment of which is necessary to effectuate the public purposes declared in the act; (b) a finding that the area requires study to determine if a redevelopment project or projects within said area are feasible; and (c) a description of the boundaries of the area designated. Such a resolution was adopted by the agency, which designated the described area as the ‘Park Center Project.’ The next step is provided for by section 33500, which provides that the city planning commission shall select one or more project areas comprising all or part of the redevelopment area and formulate a preliminary plan for the redevelopment of each project area. In this instance, the commission selected the area previously designated by the agency. The commission then formulated a preliminary plan for the redevelopment of the project area. Section 33502 provides that after submission to the agency of the planning commission's preliminary plan, the agency shall prepare a redevelopment plan based upon the preliminary plan. When such plan has been formulated, the agency ‘shall conduct a public hearing on it,’ (§ 33700) and submit it to the legislative body (§ 33711). The legislative body (city council) is required to consider the plan at public hearing before adopting it, considering all testimony and evidence for and against the plan at that time (§ 33730). If the council finds the plan conforms to statutory requirements it may, by ordinance, adopt it by majority vote as the official redevelopment plan for the project area (§ 33733). It will be noted that section 33700 is included specifically in an article dealing with the formulation of a plan. Inasmuch as the purpose of this hearing preliminary to adoption of the plan is ‘to call agency attention to and procure agency consideration of the interests, attitudes and constructive ideas of interested citizens, the legislative hearing, with broad opportunity for expression, argument and introduction of documentary materials, would seem of most utility. Moreover, to utilize an adjudicative procedure might be to invite the skillful opponent of redevelopment to seek to put not only the proposed plan, but the agency and its staff ‘on trial.’ It may be expected therefore that hearing statutes will be construed to call for legislative rather than adjudicative type proceedings.' (Sullivan, Administrative Procedure and the Advocatory Process in Urban Redevelopment, 45 Cal.L.Rev. 134, 144 (1957); footnotes omitted)

With respect to the power of referendum, it has been held that the action of the city council in enacting a redevelopment ordinance is an administrative act, not legislative, and not subject to referendum. (Andrews v. City of San Bernardino, supra, 175 Cal.App.2d 459, 346 P.2d 457.) The court also stated that all acts of the agency are administrative. As said in Jenner v. City Council, supra, 164 Cal.App.2d 490, 497, 331 P.2d 176, 181, ‘The reviewing court will not weigh the evidence nor consider evidence contrary to that in support of findings made by the board.’ While the Legislature has set the policy and has given power to the city council to implement that policy, at the same time the details of the plan must be somehow ascertained. That is done by the agency in determining for the consideration of the city council whether the factual situation exists for the establishment of a plan and then in formulating a plan to fit the situation. It is then up to the city council to decide whether or not the statutory requirements are met. It is true that the acts of the council are not legislative in that the state has determined and set out the policy, yet the acts of the agency in ascertaining whether or not the basic conditions have been met, while administrative, are nonetheless quasi-judicial. (See Takata v. City of Los Angeles, supra, 184 Cal.App.2d 154, 159, 7 Cal.Rptr. 516; Thompson v. City of Long Beach (1953), 41 Cal.2d 235, 240, 259 P.2d 649.)

As hereinbefore pointed out, section 33700 provides for a public hearing by the agency ‘on it,’ i. e., the plan formulated by the agency. We adopt Judge Owens' opinion on this subject: ‘It seems evident to the Court from the above resume that the only public hearing provided for and required by the Statute was a hearing on the plan itself prior to its recommendation to the City Council by the Agency. As pointed out by Davis (Davis on Administrative Law, Section 67, page 238): ‘All trials are hearings, but not all hearings are trials. When a statute or a judicial decision requires a ‘hearing’, the intent may be to require a trial, the principal attributes of which are opportunity for cross-examination of witnesses and a determination on the record, or the intent may be to require no more than a speech-making or public-meeting type of hearing.' * * * the misconception of the petitioners is that because this was a hearing, it was therefore a trial and subject to the rules governing a trial including opportunity for cross-examination of witnesses and the swearing thereof. * * * it was neither required that persons appearing at the hearing and making statements need be sworn nor subject to cross-examination. The requirement that witnesses be sworn and subject to cross-examination is applicable only to those hearings which are accusatory and adversary in nature and which involve either the possibility of a penalty being imposed upon an individual or the possible deprivation of either the liberty or property right of an individual. The cases relied upon by the petitioners in support of their contention are of this type, such as McPherson v. Real Estate Commissioner, 162 Cal.App.2d 751 [329 P.2d 12]; Moran v. [State] Board of Medical Examiners, 32 Cal.2d 301 [196 P.2d 20]; Olive Proration, etc. Com. v. [Agricultural], etc. Com., 17 Cal.2d 204 [109 P.2d 918]. They are concerned mainly with hearings before licensing and disciplining boards in which a particular individual is required to answer to an accusation and in which if the accusation is found to be sustained the individual will suffer a penalty, usually in the form of the deprivation of the right to pursue his chosen profession or occupation. There is no question but that in this type of administrative proceeding there is a right to both confrontation and cross-examination of witnesses and the insistence that the witnesses against the individual be sworn. As was said by Chief Justice Warren in Green [Greene] v. McElroy, 360 U.S. 474 [79 S.Ct. 1400] (3 L.Ed.2d 1377): ‘The right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the ‘liberty’ and ‘property’ concepts of the Fifth Amendment and that therefore the individual had a right to confrontation and cross-examination of witnesses.' Such proceedings in a [sic] fact are quasi criminal in nature. On the other hand, where the hearing is not accusatory or adversary in nature, no such right exists. (Jenner v. City Council, 164 Cal.App.2d 490 [331 P.2d 176]; Flagstad v. City of San Mateo, 156 Cal.App.2d 138 [318 P.2d 825].) The Flagstad case was on involving the formation of a parking district and the Court said: ‘The strict rules of evidence which obtain in the Courts are not enforced in administrative proceedings.’ It is clear from the sections of the Health and Safety Code above referred to that the only purpose of the hearing was to permit any members of the public who wished to do so to voice their objections or criticisms of the plan, if any, as outlined and proposed by the Agency and an opportunity to any members of the public to offer suggestions as to how the plan in their opinion, if any, should be altered, so that the Agency before making its recommendation to the Council would have the benefit of such objections, criticisms or suggestions. It is true that at the hearing the Agency commendably undertook through its officials and employees to give a detailed explanation of the plan to those in attendance. This action did not require * * * that the members or employees of the Agency undertaking to explain the nature and details of the plan must necessarily do so under oath or be subject to cross-examination by any or all of the public who might attend the hearing and who might be critical of the plan itself.'


Section 33731 requires the city council to make a finding that the plan is economically feasible. The council so found. Plaintiffs contend that there was no evidence before either the council or the agency to support such finding. The court found that there was substantial evidence of economic feasibility before both the agency and the council. As the records before the trial court have not been designated as part of the record on this appeal, we must assume the court's finding on the subject to be correct.

Plaintiffs seek to make an issue of the definition of substantial evidence, citing Estate of Teed (1952), 112 Cal.App.2d 638, 247 P.2d 54, as enunciating the proper definition. As used in cases involving review of administrative proceedings it is the same as used elsewhere: evidence having a basis of rational probative force. (Cantrell v. Board of Supervisors (1948), 87 Cal.App.2d 471, 475, 197 P.2d 218.) The definition in Estate of Teed in no way conflicts with this definition.

Concerning this matter Judge Owens stated in his opinion: ‘In Redevelopment Agency [of City and County of San Francisco] v. Hayes (supra [122 Cal.App.2d 777, 266 P.2d 105]) the Court said (page 811 [page 126 of 266 P.2d]): ‘Primarily the adequacy of the finances and the safeguards for completing the plan are for the determination of the administrative bodies.’ As was said by the court in Babcock v. Community Redevelopment Agency (supra) (quoting from Ransom v. Los Angeles City High School District, 129 Cal.App.2d 500–505 [277 P.2d 455]) ‘The Courts cannot enter the board room nor interfere at all with its action unless the board (administrative agency) is exceeding its legislative powers, or its judgment or discretion is being fraudulently or corruptly exercised.’ These pronouncements make sense. In fiscal matters, a City Council is an expert body, particularly in the matter of economic feasibility, when it comes to dealing with governmental operations. As pointed out by counsel for the respondents, they have handled multi-million dollar budgets, they have bought property and they have sold property throughout the City, they have more of a familiarity in the neighborhood, and can bring the sum and substance of their knowledge in determining the facts. On this issue of economic feasibility, therefore, the most this Court can do by judicial review is to determine whether the City Council in this instance abused its discretion in making its determination that the plan is economically feasible. * * * there was no such abuse of discretion shown and * * * there was substantial evidence before the legislative body in support of its finding of economic feasibility in this case.'


During the hearing before the city council an official of the agency was explaining the plan in detail and upon cross-examination by plaintiffs' counsel stated that the acquisition report prepared by the appraiser engaged by the agency indicated that the approximate cost of acquiring the property within the project area was in the vicinity of seven and a quarter million dollars, later corrected to ‘approximately 7 million dollars.’ The council denied plaintiffs' request to examine the individual appraisals which had been submitted to the agency and refused to issue subpoenas to compel their production. The council refused these requests on the ground that the appraisals were privileged communications in that they were prepared by the agency's attorney and that disclosure of individual appraisals would cause injury to the city. Defendants concede that these appraisals do not come within the attorney-client privilege. An appraiser's report is not a privileged communication. (San Diego Professional Ass'n v. Superior Court (1962), 58 Cal.2d 194, 203, 23 Cal.Rptr. 384, 373 P.2d 448, overruling Rust v. Roberts (1959), 171 Cal.App.2d 772, 341 P.2d 46.) However, the fact that the council acted partly on an improper ground is immaterial if the other ground upon which the council acted, namely, public policy, was a valid one.

In holding that the refusals were proper the trial court, and defendants, rely on the grounds enunciated in Sorley v. Lister (1961), 33 Misc.2d 471, 218 N.Y.S.2d 215. There a group of property owners sought to inspect certain records pertaining to an urban renewal project, including appraisals made for the agency. The court denied inspection of the appraisals holding they were not public records. ‘At best the appraisals are opinions as to value. The Court can find no authority to the effect that an opinion, even though in writing, is a public record. These opinions as to value are necessary and preliminary to making an estimate of the cost of acquiring the real estate involved in a particular project. They serve to provide to the buying municipality or agency thereof a guide as to the values of property from which it can determine the price to be paid on negotiation, in lieu of condemnation. The appraisers giving these opinions as to value may or may not be called upon to give these opinions in evidence in condemnation proceedings. To compel a disclosure of the appraisals would be to compel the disclosure of evidence, and would be contrary to good, sound business practice * * *.

‘The Court would observe that urban renewal is undoubtedly the most enlightened program of blight control and abatement yet to be devised. It is, however, by its very nature, a complex program, replete with red tape and with built-in opposition. To compel a disclosure of the appraisals and the prices to be paid for each house would be to hinder rather than promote this program. No useful or beneficial purpose in the public interest would be served.

‘The property owners are not being deprived of any rights or remedies which they presently have because they do not have the Village's opinion of value. They are free, as are the petitioners, to obtain from their own appraisers opinions as to the value of the properties. No property owner is compelled to accept the offer made by the Village. The remedy of having the price fixed in a condemnation proceeding is, in any event, available if a price cannot be agreed upon.’ (Pp. 219–220 of 218 N.Y.S.2d.)

These appraisals were prepared by the appraiser for two purposes: (1) to furnish a basis for estimating the probable cost of acquisition of the property, and (2) for possible use by the agency in subsequent negotiations for purchase of individual parcels and in the event that it would become necessary to acquire some of the parcels by condemnation proceedings for use in such proceedings. At the time of the council's public hearing there were involved appraisals of over 300 separate parcels of property, and as said by Judge Owens, ‘if each of these appraisals were made known and the appraiser subjected to cross-examination with respect to each, which counsel for the Agency contends would have been the next logical step in the procedure by petitioners' counsel, this would result in effect trying out the soundness of each individual appraisal. Counsel for the Agency argues that this would be in effect trying over 300 eminent domain proceedings which would have drawn out the hearings before the Council for an interminable length of time, having in mind that the proceedings before the Council actually having taken place were spread over a 2-month period. On the other hand, if the only purpose of petitioners' counsel requesting the public production of the individual appraisals was to determine whether the 7 million dollar figure was an accurate mathematical computation of the sum of all of the individual appraisals, that fact would be determined readily by the Council itself without the necessity of disclosure of the contents of each appraisal to the public at large and to the individual property owners. Inasmuch as this was an administrative proceeding, non-adversary in character, the Agency in refusing to make a public disclosure of the individual appraisals was not limited to invoking accepted privileges of non-disclosure at common law and which are applicable in the course of adversary litigation, but could justify its refusal upon the ground of public policy. (45 Cal.Law Review 524) This determination was for the Agency itself to make and under the circumstances this court cannot find that the Agency abused its discretion in refusing to compel such public disclosure at the hearing. Moreover * * * even if there was any error in judgment on the part of the Council in refusing to issue the subpoena requested, the error was not prejudicial. The Council had before it ample other evidence apart from the statement of the 7 million dollar figure elicited upon cross-examination and upon which to base its determination of economic feasibility.’


Lastly, it is contended that the redevelopment area was not blighted and, therefore, neither the council nor the agency had jurisdiction to adopt the plan. Sections 33040–33044 set forth in detail the conditions under which an area may be characterized as ‘blighted.’

The trial court disposed of plaintiffs' contention under two alternative theories. On the one hand the court found that ‘the Redevelopment Agency of the City of San Jose by resolution determined the Park Center Project Area to be a blighted area. That there was received into evidence at the hearing before the City Council substantial evidence that said Park Center Project Area is a blighted area within the meaning of Sections 33040 et seq. of the Health and Safety Code of the State of California, and that the finding of the City Council (as set forth in its ordinance adopting the plan) that said Park Center Project Area is a blighted area within the meaning of Sections 33040 et seq. of said Health and Safety Code is supported by substantial evidence received by it at the hearing before the City Council.’

Alternatively, the court held that the issue of blight was not subject to judicial review. We adopt, in part, the court's opinion on this point. ‘This raises the issue of ‘blight,’ that is whether the project area is a blighted area. Health and Safety Code Section 33746, as amended by the Stats.1959 ch. 1102, provides that the findings and determinations of the legislative body in the adoption and approval of any redevelopment plan may be judicially reviewed by a court of competent jurisdiction. Section 33731, as amended by the Stats.1959 ch. 1102, declares that on the adoption of a redevelopment plan the legislative body shall determine (a) whether the plan would redevelop the area in conformity with this part and in the interests of the public peace, health, safety and welfare; and (b) whether the adoption and carrying out of the redevelopment plan is economically sound and feasible. Section 33736, as amended by the Stats.1959, ch. 1102, provides that if the plan itself provides for the condemnation of any property, the legislative body shall not adopt the plan unless it contains a finding by the Agency that the condemnation of such property is necessary to the execution of the plan and adequate provisions for payment for property so acquired as provided by law. Section 33738, as amended by the Stats.1959 ch. 1817, provides that if the plan itself provides for the temporary or permanent displacement of any occupants of housing facilities in the project area, the legislative body shall not approve the plan except upon the finding that adequate permanent housing facilities are or will be made available to those who are displaced. It should be noted that none of these sections above referred to require any specific finding by the legislative body that the project area is a blighted area. On the contrary, Section 33732, as amended by the Stats.1959 ch. 1102, provides in effect that upon the adoption of the plan by the legislative body ‘it shall thereafter be conclusively presumed that the project area is a blighted area as defined by Sections 33041 through 33044.’ * * * reading these various sections together, as of course they must be read, * * * the intent of the legislature, in providing in Section 33732 that upon the adopting of the plan by the legislative body it shall thereafter by conclusively presumed that the project area is a blighted area, was to remove the issue of blight from the scope of judicial review. This view * * * finds support in the case of The People [ex rel. Department of Public Works] v. Chevalier, 52 Cal.2d 299 [340 P.2d 598]. The Chevalier case involved consolidated eminent domain actions by the State and a city. The recitations in the city ordinance and the Highway Commission's resolution contained a finding of ‘public necessity’. Sts. and Hy. Code Section 103 provides that the resolution of the Highway Commission shall be ‘conclusive evidence’ of the ‘public necessity’ of such proposed public improvement. Section 1241.2 of the Code of Civil Procedure provides that the finding by a city of ‘necessity’ in its ordinance shall be ‘conclusive evidence’ thereof. The Supreme Court held that in view of these Code provisions making the finding of the respective bodies conclusive evidence of the fact of ‘necessity’, such findings were not subject to judicial review. In the instant case, we have a declaration by the legislative body of a conclusive presumption of blight. * * * by the provision of Section 33732, once the legislative body has adopted the plan, the issue as to whether or not the project area is a blighted area must be conclusively presumed sumed and it is not subject to judicial review. It is true that in the case of Redevelopment Agency [of City and County of San Francisco] v. Hayes, 122 Cal.App.2d 777 [266 p.2d 105], the court did judicially review the issue of Blight, however the Hayes case was decided in 1954 and therefore, of course, prior to the adoption of the provision of Section 33732 by the legislature in 1959.'

In view of the provisions of section 33732 the city council's finding of ‘blighted area’ can only be attacked for fraud, collusion or bad faith. No such charge has been made in this case, other than the charge that the members of the city council had predetermined the issues which were presented to them, which charge the court found to be unfounded.

In attacking the trial court's decision plaintiffs cite Miller & Lux v. Board of Supervisors (1922), 189 Cal. 254, 208 P. 304. Just exactly what plaintiffs urge on the basis of that decision is not clear. The court there held that a statute declaring to be final and conclusive a finding of a board of supervisors that a petition for the formation of an irrigation district was sufficient and genuine was unconstitutional ‘if construed to prohibit the inquiry upon direct attack in certiorari into the question of whether or not the supervisors conformed to the constitutional requirements of due process of law in exercising their jurisdiction * * *’ (p. 274 of 189 Cal., p. 313 of 208 P.) because in a special assessment for local improvements a landowner, where the assessment is based on benefits received, is entitled to be heard on whether his land was in fact benefitted. In the instant case we are not dealing with the question of benefits received or an assessment. The trial judge's opinion is correct, and, in any event, it was found that substantial evidence of blight existed.

The judgment is affirmed.


1.  Although the court ruled that the court had no power to grant a trial de novo, it permitted the admission of evidence upon the issue raised by plaintiffs to the effect that defendant members of the city council had predetermined the issues before them prior to the public hearings. The court found against plaintiffs on that issue. Apparently no attack is made on that finding.

2.  Unless otherwise noted, all references to statute are to the Health and Safety Code.

BRAY, Presiding Justice.