Western Municipal Water Dist. v. Atomic Investments

Filed 4/18/07 Western Municipal Water Dist. v. Atomic Investments CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge. Affirmed.

Hornberger & Brewer, Nicholas W. Hornberger and Andrew Krastins for Defendant and Appellant.

Best Best & Krieger, Kendall H. MacVey and Mark A. Easter for Plaintiff and Respondent.

I

INTRODUCTION^[1]

The Western Municipal Water District (Water District) condemned a permanent easement to real property, located on Jefferson Street in Riverside, for the purpose of constructing a portion of an underground pipeline connecting to a canal pump station. The property owner, Atomic Investments, Inc. (Atomic), disputes the existence of a public interest and necessity to acquire the easement.

On appeal, Atomic contends the trial court erred when it failed to dismiss the case after finding the Water District had possibly violated the Ralph M. Brown Act (Gov. Code, 54950 et seq.) by meeting without notice to Atomic. As additional grounds for dismissal, Atomic complains it did not receive access to pubic records concerning the project in violation of the California Public Records Act. (Gov. Code, 6250 et seq.)

Atomic contends the appellate court should conduct an independent review and reverse the judgment. (City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1212.) The Water District maintains the proper standard of review is substantial evidence. (San Bernardino County Flood Control Dist. v. Grabowski (1988) 205 Cal.App.3d 885, 898.) Under either standard of review, we affirm.

II

FACTUAL AND PROCEDURAL BACKGROUND

The subject property is 2,240 square feet, adjacent to railroad tracks in the northeast corner of Atomics property, a larger parcel of 182,000 feet. According to a photograph, the property, with the underground pipeline installed, was being used as a parking lot at the time of trial and accommodates several parking spaces.

In December 2001, the Water District first offered to purchase the easement for $9,450. In August 2002, the Water District again offered to purchase the subject property for $16,000. Atomic rejected the offer and suggested the project be located in the public right-of-way.

At two separate noticed hearings on October 2 and October 16, the Water District asserted the project could not be located on public property, partly because the eventual construction of a railway underpass at Jefferson would require the project improvements to be relocated. Atomic continued to oppose the project and asked to review the Water Districts engineering documents. The documents provided to Atomic included the first 59-page staff report and the second 53-page draft report prepared for the Water District. Both sets of documents included detailed recommendations concerning the project, legal descriptions, plats, site and grading plans, alternate plans, and the proposed resolution.

During the second hearing, one of the Water District board members, Elizabeth Cunnison, commented that some board members had previously inspected the property on a two and one-half hour tour. Atomic had no notice of the inspection tour and did not participate in it. The Water District acknowledged there had been five meetings of the two-person Engineering and Finance Committees on October 1, 8, and 14, in which Atomic did not participate. But these two-person meetings did not violate the Ralph M. Brown Acts proscription against collective deliberation by serial meetings. (216 SutterBay Associates v. County of Sutter (1997) 58 Cal.App.4th 860, 877; Gov. Code, 54952.2, subd. (a).)

At the conclusion of the second hearing, the Water District adopted the resolution of necessity, Resolution No. 2222.

The county filed the eminent domain action in December 2002. The case proceeded in three phases: two court trials (phase one and two) in January and February 2005 and a jury trial (phase three) in February and March 2005.

In phase one, the court found the Water District had possibly violated the Ralph M. Brown Act if a majority of the five-member Board met independently for a site visit at the property, constituting a gross abuse of discretion under section 1245.255, subdivision (b). The court refused to make a finding about whether Atomic was denied access to the project documents because Atomics written request was submitted after October 16.

The court did not dismiss the action. Instead, following the procedure outlined in Redevelopment Agency v. Norms Slauson (1985) 173 Cal.App.3d 1121, 1128-1129 (Slauson), the court conducted a bench trial on the questions of public interest and necessity, ultimately ruling in favor of the Water District. After a jury trial, the court entered judgment in favor of Atomic in April 2005 in the total amount of $188,088.

III

DISCUSSION

At the outset, we deny Atomics request for judicial notice on the basis that none of the voluminous materials submitted and proposed to be submitted to this court were presented to the trial court. No extraordinary circumstances have been articulated to cause us to depart from this general rule. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 863.)

Additionally, we do not agree with Atomic that the eminent domain law is so convoluted, complicated, and ambiguous that it is necessary to trace its history beginning in 1913: [R]esort to legislative history is appropriate only where statutory language is ambiguous. As the California Supreme Court has said, Our role in construing a statute is to ascertain the Legislatures intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we look first to the words of the statute, giving the language its usual, ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.] [Citations.] Thus, [o]nly when the language of a statute is susceptible to more than one reasonable construction is it appropriate to turn to extrinsic aids, including the legislative history of the measure, to ascertain its meaning. [Citations.] (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29-30.) We are not persuaded that the statutes we discuss below need the further illumination of four volumes of exhibits that were not proffered to the trial court.

Because we deny Atomics request for judicial notice, we disregard a portion of the opening brief, as well as other arguments made by Atomic based on the materials contained in the request for judicial notice.

We begin with the pertinent statutes. Section 1240.030 describes the three factors that must be established to permit the exercise of the power of eminent domain:

(a) The public interest and necessity require the project.

(b) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.

(c) The property sought to be acquired is necessary for the project.

Section 1245.235 explains the notice and opportunity to be heard that must be given before a public entity may adopt a resolution of necessity: (a) The governing body of the public entity may adopt a resolution of necessity only after the governing body has given each person whose property is to be acquired by eminent domain . . . notice and a reasonable opportunity to appear and be heard on the matters referred to in Section 1240.030. [] . . . []

(c) The governing body . . . shall hold a hearing at which all persons described in subdivision (a) who filed a written request within the time specified in the notice may appear and be heard on the matters referred to in Section 1240.030. . . .

(d) Notwithstanding subdivision (b), the governing body may satisfy the requirements of this section through any other procedure that has given each person described in subdivision (a) reasonable written personal notice and a reasonable opportunity to appear and be heard on the matters referred to in Section 1240.030.

Section 1245.250, subdivision (a), declares the existence of a conclusive presumption about the three factors: . . . a resolution of necessity adopted by the governing body of the public entity pursuant to this article conclusively establishes the matters referred to in Section 1240.030.

Section 1245.255, subdivision (b), identifies the circumstances under which a resolution of necessity may lose its conclusive presumption as to the three factors: A resolution of necessity does not have the effect prescribed in Section 1245.250 to the extent that its adoption or contents were influenced or affected by gross abuse of discretion by the governing body.

Although Atomic was given notice of and allowed to speak at the two public hearings, it still complains it was not afforded meaningful participation . . . and therefore was denied the reasonable hearing required by section 1245.235. Additionally, it contends the Water District acted with a gross abuse of discretion ( 1245.255, subd. (b)) based on a Ralph M. Brown Act violation before adopting the resolution of necessity.

There is no real disagreement about the latter issue. Both parties acknowledge that the trial court found there was a gross abuse of discretion. Instead, the dispute centers on whether the trial court should have then dismissed the case rather than following the procedure described in the Slauson case. In Slauson, the court found there had been a gross abuse of discretion that erased the rebuttable presumption. The appellate court commented: . . . once a defendant property owner establishes by substantial evidence that the resolution of necessity was invalidly adopted and because of a gross abuse of discretion is not entitled to its ordinary conclusive effect, the burden of proving the elements for a particular taking must rest on the governmental agency. In such a case, the trial court must then determine whether the agency has made its case by a preponderance of the evidence. Appellate review of the trial courts decision is limited by the substantial evidence test. [Citations.]

In the case at bench, as we have pointed out, the trial court, on the basis of uncontroverted evidence concerning the chronology which led to the hearing on the resolution of necessity, found that the resolution was affected by a gross abuse of discretion. The burden then devolved on the Agency to establish to the trial courts satisfaction that the taking was proper. (Slauson, supra, 173 Cal.App.3d at pp. 1128-1129.)

We accept Atomics representation that, in Slauson, the party objecting to condemnation did not ask for dismissal pursuant to section 1250.370, subdivision (a), making it an objection to the right to take that the public entity has not adopted a resolution of necessity that satisfies the statutory requirements. But we do not find that to be a persuasive argument. If there is gross abuse of discretion in connection with the adoption of a resolution of necessity, section 1245.255, subdivision (b), does not provide for dismissal of the eminent domain case. Instead, it simply explains that the factors identified in section 1240.030 -- public interest and necessity; greatest public good and least private injury; and necessary acquisition cannot be considered conclusively established. We agree with Slauson and the trial court that the proper procedure was to allow the Water District to prove the three factors allowing the exercise of eminent domain. The trial court found the Water District proved the three factors and Atomic does not challenge that finding on appeal.

The present case is not like the cases relied upon by Atomic. In Conejo Recreation & Park District v. Armstrong (1981) 114 Cal.App.3d 1016, 1020-1023, the appellate court held the recreation district deprived the defendants of procedural due process by failing to give notice of its intention to appear before the board of supervisors to seek permission to condemn the defendants property (a Public Resources Code statute required the recreation district to obtain approval of the supervising authority before the district could exercise the right of eminent domain). (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1226.) Conejo did not involve a resolution of necessity. Furthermore, unlike the Conejo property owners, Atomic was not denied notice or an opportunity to be heard. After receiving due notice, Atomic submitted opposition and appeared at both hearings.

Additionally, in spite of Conejos brief assertion in a footnote that the governmental decision at issue was adjudicative rather than legislative (Conejo Recreation & Park District v. Armstrong, supra, 114 Cal.App.3d at p. 1022, fn. 3, citing Horn v. County of Ventura (1979) 24 Cal.3d 605, 612-613, a CEQA case), the weight of authority agrees that adoption of a resolution of necessity is a legislative act. [Citations.] (City of Lincoln v. Barringer, supra, 102 Cal.App.4th at p. 1226.) Therefore, Atomic cannot argue, based on Conejo and Horn that it is entitled to a greater level of due process than it was accorded. The trial court did not err by not dismissing the case based on a finding of gross abuse of discretion and its corresponding vitiation of the conclusive presumption.

Atomic attempts to launch a separate challenge to the reasonableness of the notice it received by arguing that it did not receive all the documents it requested. On this point, the trial court did not make a finding because it decided that Atomic did not make a written request for documents until the date of or after the second hearing.

This second issue, however, is meritless because our review of the whole record discloses substantial evidence to support the trial courts finding that, except for the property tour, the reasonable notice and opportunity requirements of section 1245.235 were satisfied. Atomic received notice of both hearings. It appeared and submitted opposition at both hearings.

The administrative record reflects that in August 2002, Atomic denied the Water Districts offer but proposed touring the site. At the hearing, Leonard Tessyier, Atomics president, continued to object to locating the pipeline across Atomics property. He asked to have access to the engineering documents. At the second hearing, Atomic submitted written opposition and complained that critical information was being withheld including construction costs, CEQA studies, construction scheduling, complete plans, and names of all other affected parties.

But Atomic has not cited any authority to show it was entitled to examine every document generated by the Water District for the project or these particular documents. Instead, it generally asserts that it was denied the opportunity to rebut the Water Districts staff presentation supporting the project. But, even without the documents it requested, Atomic was able to articulate fully its reasons for opposing the taking of its property. The withholding of some documents, if it occurred, did not justify the trial court dismissing the eminent domain case for lack of notice.

As a final comment, although we can resolve the case based on the foregoing, we observe that there is also merit in the Water Districts arguments based on waiver and estoppel. In its original answer, Atomic did not plead its challenges to the right to take with specificity. ( 1245.255, 1250.345, & 1250.350; San Bernardino County Flood Control Dist. v. Grabowski, supra, 205 Cal.App.3d at p. 894.) Additionally, Atomic failed to seek an order for stay of possession or a special trial setting on its objections. ( 1255.430 & 1260.110.) Instead, it permitted the project to be constructed to the potential extreme detriment of the Water District. Under these circumstances, waiver and estoppel would operate. (Collier v. Merced Irr. Dist. (1931) 213 Cal. 554, 563-564.)

IV

DISPOSITION

We observe that thousands of pages comprise the record of this case, now in its fifth year of litigation. The appellate briefs are lengthy but the issues are ultimately simple. Even without additional project documents, Atomic was afforded reasonable notice and opportunity to be heard regarding the adoption of the resolution of necessity. In spite of the purported Ralph M. Brown Act violation, the trial court found in favor of the Water District regarding the factors justifying the exercise of the power of eminent domain. The jurys award favored Atomic.

We affirm the judgment. As the prevailing party on appeal, the Water District shall recover its costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/McKinster

Acting P.J.

We concur:

s/King

J.

s/Miller

J.

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^[1] All statutory references are to Code of Civil Procedure unless stated otherwise.