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

SIERRA CLUB et al., Plaintiffs and Appellants, v. CITY OF HAYWARD, Defendant and Respondent; Y. Charles SODA et al., Real Parties in Interest and Respondents.

Civ. 48923.

Decided: June 19, 1980

Sierra Club Legal Defense Fund, Julie E. McDonald, Laurens H. Silver, San Francisco, for plaintiffs-appellants. John W. Scanlon, City Atty., Hayward, for defendant-respondent. Berliner, Cohen & Biagini, Jeffrey P. Widman, Hugh L. Isola, San Jose, for real party in interest AE Realty Partners dba Ponderosa Homes. Hardin, Cook, Loper, Engel & Bergez, Barrie Engel, Ralph A. Lombardi, Oakland, for real party in interest Soda.

Our concern on this appeal is the Williamson Act (Act) which is codified as Government Code sections 51200-51295. The Act's purpose was to discourage the accelerating conversion of agricultural land to urban uses caused by rising land values and taxes, to prevent the consequent “urban sprawl” and developmental “leap frogging,” and to eliminate the high cost of extending local governmental services to the scattered urban areas so created.

The Act authorizes a local government to create “agricultural preserves,” and to enter into contracts with landowners who agree to restrict their land to such uses for at least 10 years, with annual renewals for continued 10-year periods. Upon a landowner's failure to renew, the contract nevertheless retains a remaining 9 years of vitality. The landowners in return receive a significant advantage their land is taxed on its agricultural use value, instead of its speculative worth as prospective city building lots. The lesser tax revenue is compensated for by the desirable continued nearby open space and agricultural resources. A feature of the Act is its section 51282, which permits cancellation of such contracts upon request of the landowner signatories when certain conditions are found to exist, and upon payment of “additional deferred taxes” calculated by a formula set forth in the Act.

We discern no disagreement as to the facts we now relate.

Real parties in interest and respondents Y. Charles Soda and his wife Helen Soda (the Sodas) were owners of 600 acres of land just within the eastern boundary of the City of Hayward (City). The land was used for livestock grazing, and in 1969 the Sodas entered into an agricultural preserve contract with the City covering it. Each year thereafter they renewed the contract for the ensuing 10 years. In 1978, however, the Sodas, pursuant to the Act's section 51282 petitioned the City's council (City Council) for cancellation of the contract in respect of the westernmost 93 acres of their land. Coincidentally, real party in interest and respondent AE Realty Partners, doing business as Ponderosa Homes (Ponderosa Homes), proposed to build 153 “upper-middle income” homes upon 63 of the 93 acres. Title to the remaining 30 acres was tendered the City as permanent open space. The City Council, after securing an environmental impact report (see Pub. Resources Code, s 21000 et seq.) and holding appropriate public hearings thereon, approved the report, canceled the Sodas' contract as to the 93 acres, and approved construction by Ponderosa Homes of the subdivision thereon. The Sodas paid, or at least stood and stand ready to pay, additional deferred taxes (as required by the Act) of $148,175.

The several plaintiffs, in the proceedings of the City Council, had objected to the cancellation. Upon the City Council's adverse determinations they sought to set aside the cancellation resolution by mandate proceedings under Code of Civil Procedure section 1094.5.

Judgment was entered against plaintiffs in the superior court. The instant appeal was taken by them from that judgment.

Parenthetically at this point, we observe the following recitals of plaintiffs' briefs: “(P)laintiffs sent a letter to the trial court withdrawing their request for a hearing on their objections to the City's proposed findings and conclusions . . . . The court treated the letter as a withdrawal of plaintiffs' objections to the City's proposal. . . . The trial court signed the findings and conclusions proposed by the City of Hayward without even considering the written objections that had been timely filed by plaintiffs . . . . The court erroneously thought such objections had been withdrawn. . . . (U)nder the circumstances, appellants submit that the findings and conclusions should just be disregarded.” (Latter emphasis added.) Finding no prejudice therefrom to any of the parties and a resolution of this additional problem otherwise unnecessary to our disposition of the appeal we shall, as suggested, disregard the trial court's findings and conclusions.

Our function will be to determine whether, as contended by plaintiffs, the City Council's “decision is not supported by the (City Council's ) findings (and) the findings are not supported by the evidence.” (See Code Civ.Proc., s 1094.5, subd. (b); see also Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, passim ; Bixby v. Pierno (1971) 4 Cal.3d 130, 144-147, 93 Cal.Rptr. 234, 481 P.2d 242.)

Section 51282 provides, as relevant to the appeal, that a city's council “may approve the cancellation of a contract only if they find: (a) That the cancellation is not inconsistent with the purposes of (the Act); and (b) That cancellation is in the public interest.”

The statute then states: “The existence of an opportunity for another use of the land involved shall not be sufficient reason for the cancellation of a contract. A potential alternative use of the land may be considered only if there is no proximate, noncontracted land suitable for the use to which it is proposed the contracted land be put.” (Emphasis added.)

The record establishes, and plaintiffs, concede, that the City Council did find, according to subdivisions (a) and (b) of section 51282, that the cancellation was “not inconsistent with the purposes of (the Act)” and that it was “in the public interest.”

Plaintiffs' first appellate contention relates to the above emphasized portion of section 51282. They insist that an essential prerequisite to a valid cancellation under the Act is an express finding of the concerned local legislative body that “there is no proximate, noncontracted land suitable for the use to which it is proposed the contracted land be put.”

(We find the statutory meaning and purpose of that language to be ambiguous and obscure. But we discern no need, in our determination of the appeal, to pass upon whether it mandates an express finding. We here indulge, but arguendo only, plaintiffs' contentions that it must be given its literal meaning, and that it does require an express finding.)

We conclude that the City Council did make the here debated finding, although not expressly in the language of the statute.

It is not settled law that findings of an administrative agency such as the City Council, ordinarily composed of laymen, “ ‘need not be stated with the formality required in judicial proceedings.’ ” Nor need they be set forth “in the language of the applicable legislation”; indeed such a practice is to be discouraged and is sometimes disapproved. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517, and fn. 16, 113 Cal.Rptr. 836, 522 P.2d 12.) The findings will be sufficient if they satisfy “the dual requirements of making intelligent review by the courts possible and apprising the parties of the basis for (the) administrative action.” (Swars v. Council of City of Vallejo (1949) 33 Cal.2d 867, 873, 206 P.2d 355, 359; and see Topanga Assn., supra, p. 517, fn. 16, 113 Cal.Rptr. 836, 522 P.2d 12; Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945, 951, 142 Cal.Rptr. 86; Kirby v. Alcoholic Bev. etc. App. Bd. (1969) 3 Cal.App.3d 209, 218, 83 Cal.Rptr. 89.) And such findings “are to be liberally construed to support rather than defeat the order under review.” (Realty Projects, Inc. v. Smith (1973) 32 Cal.App.3d 204, 213, 108 Cal.Rptr. 71, 77.)

“Proximity” is defined as “the quality or state of being proximate, next, or very near . . . immediate or close . . . .” (Webster's New Internat. Dict. (3d ed. 1965) p. 1828.) “Proximate,” in the instant context, means “immediate, nearest, next in order.” (Smith v. Los Angeles etc. R'y Co. (1893) 98 Cal. 210, 214, 33 P. 53 and see Black's Law Dict. (4th ed. 1951) p. 1391, col. 2.)

According to the administrative record, we iterate that the City Council had by resolution certified and approved the required environmental impact report as complete. That report pointed out that only residential subdivisions and “contracted” agricultural preserve land were contiguous to the 93 acres. The record also discloses a report and recommendation of the City's planning department “that the requested area be deleted from Agricultural Preserve,” “that the public interest would not be harmed,” and “that no other parcel is proximate and suitable for the size, type, and use proposed.” (Latter emphasis added.) The report and recommendation were accepted, followed, and implemented by resolution of the City Council.

We observe, further, a resolution of the City Council determining “that the partial cancellation” of the subject agricultural preserve contract “is neither premature nor unnecessary ” and “would be of benefit to urban dwellers requiring housing accommodations as an orderly extension of contiguous residential subdivisions ; . . . ” (Emphasis added.) Such “necessary” and “orderly extension of contiguous residential subdivisions” will reasonably imply the nonavailability of other, and “proximate, noncontracted land suitable for the use” proposed for the 93 acres. As argued by plaintiffs at the City Council hearing, a purpose of the Act “is to discourage premature, discontiguous residential development . . . of an area . . . .” (Emphasis added.)

The foregoing resolutions of the City Council, we opine, were informal but meaningful factual determinations, and thus findings, which apprised the parties of the basis of the City Council's action, and make possible an intelligent review of it by this court. The requirements of Topanga Assn. and its kindred authority were satisfied by the City Council.

Moreover and as will be seen, we find the evidence that there was “no proximate, noncontracted land suitable for the (proposed) use” to have been uncontradicted. The 93 acres were surrounded by residential subdivisions and contracted agricultural preserve. That proof, established by the environmental impact report, the City's planning staff's reports and oral testimony, and maps and yet other testimony, will not reasonably be deemed controverted by the conclusionary testimony and letters of a few witnesses that there was somewhere such (otherwise undescribed and unlocated) “proximate, noncontracted land.” “(A) mere conclusion, particularly where there are no facts in the (administrative record) to support it, is not sufficient.” (Jones v. Maloney (1951) 106 Cal.App.2d 80, 90-91, 234 P.2d 666, 672.)

A trial court need not make a finding of fact where “there is no material evidence to support such a finding, . . . ” (Emphasis added; Williams v. Marshall (1951) 37 Cal.2d 445, 453, 235 P.2d 372, 377; New Blue Point Min. Co. v. Weissbein (1926) 198 Cal. 261, 272, 244 P. 325; Kerr Land & Timber Co. v. Emmerson (1965) 233 Cal.App.2d 200, 222, 43 Cal.Rptr. 333; J. C. Wattenbarger & Sons v. Sanders (1963) 216 Cal.App.2d 495, 504, 30 Cal.Rptr. 910; McLoughlin v. L. Bloom Sons Co., Inc. (1962) 206 Cal.App.2d 848, 856, 24 Cal.Rptr. 311.) This rule will reasonably apply to an administrative agency, such as the City Council, held to a lesser standard than is a judicial tribunal. (See Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506, 517, fn. 16, 113 Cal.Rptr. 836, 522 P.2d 12; Swars v. Council of City of Vallejo, supra, 33 Cal.2d 867, 872, 206 P.2d 355.)

Plaintiffs next contend that none of the required findings of the City Council was supported by substantial evidence on the whole record.

We first consider whether the two express findings made by the City Council as mandated by section 51282, i. e., that “the cancellation is not inconsistent with the purposes of (the Act)” (subd. (a)), and that “cancellation is in the public interest” (subd. (b)), lacked such evidentiary support.

From the entire administrative record we have extracted the following, and typical, excerpts.

When the Sodas' agricultural preserve contract was entered into in 1969 there was not the need for housing which later existed. But upper-middle income housing had become in short supply, and was sorely needed to satisfy the requirements of existing and future residents of the City. The City's general plan had established the Sodas' 93 acres, not as “open space” or agricultural preserve, but as “suitable for residential development”; in 1971 it had been so “earmarked.” And the City's planning staff had consistently recommended that the land be “available for subdivision development.”

Manifestly the City Council reasonably could, and did, conclude from the foregoing that the proposed cancellation of the 93 acres from the agricultural preserve contract, thus to provide needed housing facilities, was in the “public interest.” It is of no legal consequence that there was other “evidence” such as that offered by one of the plaintiffs: “What would be a better legacy for the future, houses or the natural land? We believe in this case that the natural land is the better choice.” The duty to choose, placed by law upon the City Council, was undoubtedly troublesome and perhaps unpleasant but we cannot say as a matter of law that the “choice” was unreasonable or contrary to the public interest. (See s 51282, subd. (b).)

Section 51235 of the Act provides that “Any city or county . . . shall have . . . the right to enlarge, diminish or disestablish an agricultural preserve within its jurisdiction.” (Emphasis added.) The cancellation at issue was patently “not inconsistent with the purposes of (the Act) ” (emphasis added), and the City Council properly so found. (See s 51282, subd. (a).)

We come now to what appears to be the essential issue of the appeal: Did substantial evidence support the finding of “no proximate, noncontracted land suitable for the use to which it is proposed the contracted land be put”? We continue with portions of the record's evidence.

The subdivision proposed for the 93 acres was, as noted, a “necessary” and “an orderly extension of contiguous residential subdivisions” of the City. Witnesses and official reports variously averred: “(T)here is no other proximate land available for a similar housing development”; “no other parcel is proximate and suitable for the size, type, and use proposed”; it is “indeed contiguous to development” with “no major piece of land available for identical use”; “it is no longer correct that this property . . . development here would premature”; and, “I do not see in the immediate area any major pieces of land that would be developable . . . .” And the environmental impact report, certified and relied upon by the City Council as complete and considered in its entirety, beyond any doubt established that there was “no proximate, noncontracted land suitable for the use to which it (was) proposed the contracted land be put.” And, as we have previously indicated, maps of the area found in the administrative record corroborate the foregoing. (No evidence indicated that the proposed subdivision would be a “leap frogging” operation, or pointed out specific “proximate, noncontracted land suitable for the use to which it (was) proposed” the 93 acres be put.)

Finally, it is urged by plaintiffs that “there is no evidence that the Soda property has lost its agricultural value.”

It is asserted that “remarks” made at the public hearing of the City Council “suggest that their votes were based primarily on their personal speculations that grazing must be a losing proposition.” We think a fair reading of the record of the hearing discloses instead, that the City Council members were motivated by what they believed to be the public interest, and more particularly, by the critical housing needs of the City. Furthermore, it did appear from the evidence that grazing on the 93 acres was a “losing proposition,” and a pursuit which had been abandoned by the Sodas. And whether or not there was such evidence is a matter found irrelevant to the issues of the appeal.

The judgment is affirmed. The petition for a writ of supersedeas having become moot, it is dismissed.

ELKINGTON, Associate Justice.

RACANELLI, P. J., and GRODIN, J., concur.