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

SUNSET VIEW CEMETERY ASSOCIATION, Plaintiff and Respondent, v. CITY OF EL CERRITO, et al., Defendants and Appellants.

AO 17494.

Decided: August 20, 1984

Lee C. Rosenthal, Goldfarb & Lipman, Oakland, for plaintiff and respondent. Philip M. Jelley, Fitzgerald, Abbott & Beardsley, Oakland, for defendants and appellants.

The present appeal is from order of the court below invalidating an ordinance amending the redevelopment plan of the City of El Cerrito.

On October 17, 1977, appellant City Council for the City of El Cerrito adopted the El Cerrito Redevelopment Plan.   The plan encompassed a large area, loosely integrated in terms of location, use and pattern of development.   The property was characterized by an incompatible and conflicting combination of residential, commercial and industrial uses, and many of its improved structures suffered from advanced physical deterioration.   The area was further encumbered by an outmoded and inefficient traffic circulation system which limited the profitable use of the undeveloped land.   Finally, a high incidence of fragmented parcelization and multiple ownership was present, preventing effective utilization of the undeveloped land.   As a result, the City Council found that the area suffered from physical, social and economic blight, and adopted a redevelopment plan intended to eliminate the conditions of blight and to effectuate the profitable development and growth of the area.

In January 1980, appellant El Cerrito Redevelopment Agency began consideration of a proposal to include in the project area an undeveloped parcel of property consisting of 1.77 acres of land owned by respondent Sunset View.   This property is not contiguous to the original project area and is located in a residential area almost a mile away.   Sunset View's property does not exhibit any symptoms of blight or physical deterioration, and the area adjacent to the property is prosperous and well-maintained, showing no signs of deterioration.

In August 1980, the Agency approved an amendment to the plan to include Sunset View's property in the project area, designating it as Area III.   The plan, as amended, made the following provisions for Area III:

“The preferred use of Area III of the Redevelopment Project Area is for low and moderate income housing for the elderly and handicapped.   Said residential use will include all the ancillary uses that may be associated with the development of housing for the elderly and handicapped.   In the event the Agency determines by resolution that such housing for the elderly and handicapped or other low and moderate income housing is not economically feasible or appropriate for the site, the Agency may, by resolution, determine that said property may be used for any other residential or commercial use which conforms to existing zoning ordinances of the City of El Cerrito.”

Prior to submitting the proposed amendment to the City Council, the Agency assembled a report treating upon a number of issues relevant to the proposed inclusion of Area III.   The report stated that additional low-cost housing for the elderly was necessary in the City of El Cerrito and contained a description of how Sunset View's property was suitable for the proposed use.   The report also contained a section describing the several types of financing available to all redevelopment authorities;  it did not, however, list the requirements for qualification for the enumerated funding programs, whether the Agency met such requirements, the extent that funds were presently available, or what the Agency's prospects were for procuring these resources.

The City Council held a public hearing on December 1, 1980, to take evidence to determine whether the proposed plan, as amended, should be enacted.   Statements elicited at the hearing suggested that the area surrounding Sunset View's property was congested, that traffic was a problem, and that these conditions would be exacerbated by the construction of a housing project.

Evidence in favor of the proposed amendment, including the above-mentioned report, was presented by Jean Smith, Director of the Redevelopment Agency.   Smith testified that additional housing for the elderly was necessary and that this site was appropriate.   Smith conceded at the hearing that no federal funds were presently available to finance the acquisition of Sunset View's property, and that the possibility of obtaining such funds was uncertain.

At the conclusion of the hearing, the members of the El Cerrito City Council, finding inter alia that the site was suitable for low and moderate income housing and that inclusion of Area III was both necessary to the redevelopment plan and economically feasible, voted to approve the plan, as amended, and the ordinance enacting this measure was passed into law on December 15, 1980.

On February 10, 1981, Sunset View filed its action to invalidate the amended plan pursuant to the provisions of Health and Safety Code section 33501.1  The trial court, noting that unblighted, noncontiguous areas may be included in the project area only if necessary for effective redevelopment (Health & Saf.Code, § 33320.2, set forth infra) 2 , found substantial evidence to support the Council's finding of the site's suitability for low and moderate income housing, but determined that there was no substantial evidence 3 to support the City Council's findings that the inclusion of Area III in the project area was necessary to effective redevelopment or that the plan was economically feasible.   Based on these findings, the trial court held that the plan as amended was invalid and that respondent's property could not be included in the project area.

Appellants challenge this declaration of the plan's invalidity, contending that, as the ordinance declared the “preferred use” of the property to be for low and moderate income housing, its inclusion in the project area should be conclusively presumed proper pursuant to Health and Safety Code section 33320.2 (set forth infra).   Appellants further maintain that the Council's finding of economic feasibility is supported by substantial evidence.

Before addressing the complex issues before us, we first summarize the salient statutory provisions relative to redevelopment.   In enacting the Community Redevelopment Law (§ 33000 et seq.), the Legislature has recognized the existence of blight in this state and has determined that condition to be an economic and social liability menacing the health, safety, and general welfare of the people (§ 33030).   The law provides a means of eliminating blighted areas and reclaiming potentially valuable land through planning, development, redesign, clearance, reconstruction, and rehabilitation of such areas with provisions for needed structures and open spaces (§ 33021).   There is a redevelopment agency in every community (§ 33100) which prepares plans for the redevelopment of blighted areas and disseminates information on the subject (§ 33131).   The plan is then submitted to the local legislative body (§ 33356), which body, after a public hearing, may adopt by ordinance the plan as submitted or as amended (§§ 33360–33376).   Such an ordinance must contain, inter alia, findings by the legislative body that redevelopment is necessary to effectuate the public purpose and that the plan is economically sound (§ 33367).   The validity of the ordinance is subject to judicial review via an in rem, declaratory action commenced within 60 days following adoption of the ordinance (§§ 33500 et seq.;  Code Civ.Proc., § 860 et seq.).   Once the plan has been deemed valid, the agency may acquire property within the area by purchase, lease, gift etc., or through eminent domain (§ 33391).   And such property, once acquired, may be managed and operated by the agency (§ 33400) or transferred to private ownership (§ 33430).   If property has been included in a redevelopment plan and has not been acquired within three years following its inclusion, the owner may offer to sell the property to the redevelopment agency and, upon the agency's failure to acquire within 18 months or to designate the property to be exempt from eminent domain, bring an action in inverse condemnation (§ 33399).

 In the case at bench, we find appellants' contention that Area III should be conclusively presumed to be necessary for effective redevelopment to be of little merit.  Section 33320.2 provides:

The area included within a project and a project area may be either contiguous or noncontiguous.   All noncontiguous areas of a project area shall be either blighted or necessary for effective redevelopment.   An unblighted, noncontiguous area shall be conclusively deemed necessary for effective redevelopment if such an area is being used predominantly for:

(a) Relocation of owners or tenants from other noncontiguous areas in the same project area or from other project areas in the community.

(b) Low- and moderate-income housing.

An unblighted, noncontiguous area shall be deemed not necessary for effective redevelopment if such an area is included for the purpose of obtaining the allocation of taxes from such area pursuant to Section 33670 without other substantial justification for its inclusion.

The redevelopment agency shall not use the power of eminent domain for acquisition of property, other than vacant land, in noncontiguous, unblighted areas.

The plain language of the statute requires that for the presumption to apply it must appear that the property “is being used” for either of the two stated purposes.   Here, it is undisputed that at the present time Area III “is being used” for neither of such purposes, since it is vacant.   In order to uphold appellant's contention in this matter we would be constrained to construe the statute's use of the present tense of the verb to include the future tense as well (i.e., “will be used”), a novel concept in statutory interpretation which we decline to essay.

 However, the fact that appellants are unable to avail themselves of the presumption accorded by Health and Safety Code section 33320.2 does not mandate the contrary conclusion that the property is unnecessary for effective redevelopment.   As noted, the legislative body found that the property's inclusion was both necessary and economically feasible;  the trial court determined that these findings were not supported by substantial evidence.   In reaching this determination, however, the trial court erred by applying an improper standard of review.

 Doubtless, a determination by a redevelopment agency and a legislative body that property be included in a project area is subject to judicial review.  (§ 33500 et seq.;  Code Civ.Proc., § 860 et seq.;   Sweetwater Valley Civic Assn. v. City of National City, (1976) 18 Cal.3d 270, 133 Cal.Rptr. 859, 555 P.2d 1099.)   The statutes, however, are silent as to the extent and scope of such review.   But since the property's inclusion in the redevelopment plan anticipates the ultimate use of the power of eminent domain to effectuate that plan, we opine that, in hearing statutory validation proceedings under sections 33500 et seq. courts should apply the same scope of review to findings and determinations of administrative and legislative bodies as is applied to the findings and determinations of such tribunals in condemnation proceedings.   Under such an analysis, the questions of the necessity and economic feasibility of Area III's inclusion in the redevelopment plan present non-justiciable issues, since, as in the law of eminent domain, the necessity or expediency (i.e., economic feasibility) of a particular taking is a legislative question (People v. Chevalier (1959) 52 Cal.2d 299, 340 P.2d 598), the conclusive effect of which should not be disturbed even upon allegations of fraud, bad faith, or abuse of discretion.  (People ex rel. Dept. Pub. Wks. v. Superior Court (1968) 68 Cal.2d 206, 65 Cal.Rptr. 342, 436 P.2d 342;  People v. Chevalier, supra;  Breiner v. City of Los Angeles (1971) 22 Cal.App.3d 382, 99 Cal.Rptr. 180.)   If the taking be for a public use and just compensation is paid, no constitutional rights of the condemnee are infringed by making the issue of necessity non-justiciable.  (People ex rel. Dept. Pub. Wks. v. Superior Court, supra.)

 In our view, sound reason dictates that these same principles of eminent domain should govern judicial review of the findings and determinations of legislative bodies in enacting redevelopment plans.   Thus, although the case law is replete with suggestions that the findings of legislative and administrative bodies in this field must be evaluated to determine whether they are supported by “substantial evidence” (Sweetwater Valley Civic Assn. v. City of National City, supra;  In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 37 Cal.Rptr. 74, 389 P.2d 538;  Regus v. City of Baldwin Park (1977) 70 Cal.App.3d 968, 139 Cal.Rptr. 196;  Redevelopment Agency v. Hayes (1954) 122 Cal.App.2d 777, 266 P.2d 105), each of such cases involved findings and determinations on the existence of blight, a factor upon which turns the issue of public use.  (In re Redevelopment Plan for Bunker Hill, supra.)   Of course, the issue of whether a taking is for a public use is always justiciable, even where the condemnor's determination has been made conclusive on the necessity of the taking.  (People ex rel Dept. of Pub. Wks. v. Superior Court (1968) 68 Cal.2d 206, 65 Cal.Rptr. 342, 436 P.2d 342.)   Moreover, we note that the leading case of Redevelopment Agency v. Hayes, supra, held that the necessity for the dwellings there contemplated to be built and the availability and adequacy of finances to complete the project were questions for the administrative and legislative bodies;  and held further that whether a plan is improvident or unwise is likewise for the city and agency to determine.  (Redevelopment Agency v. Hayes, supra, 122 Cal.App.2d 798, 811–812, 266 P.2d 105.)

 Under this analysis therefore, we find the trial court's invalidation of the instant amendment, on grounds of insubstantiality of evidence to support the legislative findings of necessity and economic feasibility, to be improper;  and the sole issue properly remaining for our determination is whether the property's inclusion in the plan satisfies a public use or purpose.

 It is here beyond cavil that the purported use of the property is a public one:  supplying the housing needs of low and moderate income families in the process of slum clearance constitutes a public use and purpose.   (Housing Authority v. Dockweiler (1939) 14 Cal.2d 337, 94 P.2d 794;  Housing Authority v. Forbes (1942) 51 Cal.App.2d 1, 124 P.2d 194.)   What appears to be the crucial controversy, however, is whether the ultimate use of the property will accord with the purported use.   This question hinges upon the interpretation of what the parties and the trial court characterize as the “escape hatch” in the plan as adopted by the ordinance.   That section provides “in the event the agency determines by resolution that such housing for the elderly and handicapped or other low and moderate income housing is not economically feasible or appropriate for the site the Agency may, by resolution, determine that said property may be used for any other residential or commercial use which conforms to existing zoning ordinances of the City of El Cerrito.”   Respondent maintains that this inartfully drawn language would allow the City to condemn the property under the guise of public use and then resell the land to third parties to be developed for whatever use it might in the future desire.   Appellants maintain that the “escape hatch” is for the respondent's benefit in that, should it later be determined that the property is unsuited for low income housing, this section would allow the respondent to apply to develop its property without respondent or the agency being burdened by what appellant characterizes as the “long and complex” amendment process involved in removing property from the project area.4

 Under either interpretation we regard the “escape hatch” as objectionable.   At worst, the clause can be read as authorizing action which runs afoul of constitutional and statutory requirements that the power of eminent domain shall be exercised to acquire property only for a public use, while, at best, it appears to be an inartful attempt to circumvent the statutorily prescribed procedures for amendment of redevelopment plans.   The procedural requirements through which property may be included in a redevelopment plan reflect a legislative concern that public reservation and acquisition of land be based upon a systematic, coordinated, and thoughtful consideration of future needs.   Once property has been included in a redevelopment plan, i.e., once the legislative body as a result of this process has determined that public purpose and necessity require the reservation and ultimate acquisition of the property, the decision that such public purpose no longer exists, or that the property is no longer needed to effectuate such a purpose, is not one which should be cavalierly or unilaterally determined.   The Community Redevelopment Law sets forth the procedural requirements by which this determination is to be made and we decline to validate the attempt to circumvent them apparent in the contested process.

 Having found the “escape hatch” to be invalid, we must determine whether the remainder of the ordinance may be given effect.   The test of the severability of an invalid part of an ordinance from the remainder is whether the invalid part can be severed without destroying the legislative scheme or the utility of the remaining provisions.  (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 872, 94 Cal.Rptr. 777, 484 P.2d 945.)   Unless the two parts are so inseparably interblended or dependent on each other that the invalidity of one will necessarily affect the whole, the valid part will be sustained.  (Ex parte Haskell (1896) 112 Cal. 412, 420, 44 P. 725.)  “ ‘[I]n considering the issue of severability, it must be recognized that the general presumption of constitutionality, ․ normally calls for sustaining any valid portion of a statute ․  This is possible and proper where the language of the statute is mechanically severable, that is, where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase or even single words․' ”  (Italics deleted.)  (Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330, 118 Cal.Rptr. 637, 530 P.2d 605.)  “ ‘The final determination depends on whether “the remainder ․ is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute” [citation] or “constitutes a completely operative expression of the legislative intent ․ [and] [is] [not] so connected with the rest of the statute as to be inseparable.”  [Citation.]’ ”  (Id., at p. 331, 118 Cal.Rptr. 637, 530 P.2d 605.)

 Here, excising the offensive portion of the ordinance works no violence upon what we conceive to be the legitimate portions of the legislative scheme;  the ordinance as severed would then provide:  “The preferred use of Area III of the Redevelopment Project Area is for low and moderate income housing for the elderly and handicapped.   Said residential use will include all the ancillary uses that may be associated with the development of housing for the elderly and handicapped.”

 Respondent may still (with some justification in grammar and logic) complain that a declaration that the “preferred” use of the property is for low and moderate income housing poses a constitutional problem as being insufficiently expressive of a public purpose.   However, where the validity of an act is drawn into question, the courts will construe the act in favor of its validity (Turner v. Board of Trustees (1976) 16 Cal.3d 818, 827, 129 Cal.Rptr. 443, 548 P.2d 1115) if it is possible to do so by making a reasonable interpretation of the enactment (County of Madera v. Gendron (1963) 59 Cal.2d 798, 801, 31 Cal.Rptr. 302, 382 P.2d 342).   Where the language employed will reasonably permit the choice, a construction that will make the statute valid and operative, rather than defeat it or render it without effect will be adopted.  (Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558, 11 Cal.Rptr. 758, 360 P.2d 334.)

 Webster's Third International Dictionary defines “prefer” as “to have a preference for,” “to choose,” “to like better,” “to value more highly.”   In accordance with the familiar principles of statutory construction cited above, and since “preferred” is reasonably susceptible to the meaning of “chosen” or “highly valued,” so construing the ordinance obviates any constitutional objections.   As so modified and interpreted, we hold the ordinance to be valid.

 In order to further allay respondent's concerns as to the public nature of the ultimate use or the motives of the legislative or administrative bodies, we deem it proper to note that, should the redevelopment agency at some future date initiate condemnation proceedings under the ordinance as hereby validated, respondent obviously retains the right to object on grounds that the agency does not intend to devote the property to the stated purpose (Code Civ.Proc., § 1250.360), that the condemnor is guilty of fraud, bad faith or abuse of discretion in the sense that it never intended to use the property for the resolved purpose (People v. Chevalier, supra;  People ex rel. Dept. Pub. Wks. v. Superior Court, supra ), or that its true purpose is to take respondent's property for private use, or for a public use unrelated to that for which it is purportedly taken (People ex rel. Department of Pub. Wks. v. Lagiss (1963) 223 Cal.App.2d 23, 35 Cal.Rptr. 554;  People ex rel. Dept. of Public Works v. Garden Grove Farms (1965) 231 Cal.App.2d 666, 42 Cal.Rptr. 118).   Moreover, either in an eminent domain action or an action for inverse condemnation pursuant to section 33399, respondent may recover compensation for any interference with the possession and use of the real property resulting from its inclusion in the plan.  (§ 33399;  see Klopping v. City of Whittier (1972) 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345.)

As above modified and interpreted, the ordinance amending the redevelopment plan is declared to be valid.

The judgment is reversed.


1.   Section 33501 provides:An action may be brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure to determine the validity of bonds and the redevelopment plan to be financed or refinanced, in whole or in part, by the bonds, or to determine the validity of a redevelopment plan not financed by bonds, including without limiting the generality of the foregoing, the legality and validity of all proceedings theretofore taken for or in any way connected with the establishment of the agency, its authority to transact business and exercise its powers, the designation of the survey area, the selection of the project area, the formulation of the preliminary plan, and the adoption of the redevelopment or renewal plan, and also including the legality and validity of all proceedings theretofore taken and (as provided in the bond resolution) proposed to be taken for the authorization, issuance, sale and delivery of the bonds and for the payment of the principal thereof and interest thereon.

2.   All references are to the Health and Safety Code unless otherwise indicated.

3.   The briefs of both parties recite that the court determined that a validation action brought pursuant to Health and Safety Code section 33500 et seq. was analogous to an action for administrative mandamus and hence reviewed the instant amendment under Code of Civil Procedure section 1094.5.   Other than the recitation of the parties, however, nothing appears on the record to confirm that the trial court viewed the present action as one for administrative mandamus or otherwise looked to Code of Civil Procedure section 1094.5 to provide the applicable scope of review.   It does not appear that the trial court either received additional evidence not appearing in the record of hearings before the Council or attempted to reweigh the evidence, i.e., conduct a trial de novo.   What is apparent is that, in reviewing the evidence upon which the agency and Council acted, the court determined the decisions of those bodies were not supported by “substantial evidence.”

4.   The burdens thus referenced are presumably the requirements for reports, hearings, the submission of the report to the legislative body, etc.

NEWSOM, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.

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