Sierra Club v. City of Hayward
Sierra Club v. City of Hayward
Dissenting Opinion
I respectfully dissent. The City Council of Hayward did not abuse its discretion in cancelling the agreement in question.
Required Findings
What are the required findings in such a case? Section 51282 of the Government Code provides, in relevant part: “The board or council may approve the cancellation of a contract only if they find: [1f] (a) That the cancellation is not inconsistent with the purpose of this chapter; and [U] (b) That cancellation is in the public interest.” The section also provides that certain additional factors may be considered under certain circumstances in deciding whether to cancel an agreement, e.g. the uneconomic character of an existing use and the existence of alternative uses. Although expressly providing that neither of these latter considerations shall by itself constitute sufficient reason for cancellation, the statute does not require any formal findings as to them. The obvious reason is that these are but two illustrative examples of possible factors which may be considered by the council in making the twin findings of consistency with the purposes of the act and harmony with the public interest which, in contrast, are statutorily required before cancellation may be ordered.
In order to make the specified findings, then, the council must look to the “purpose of this chapter” and the “public interest” referred to therein. (Gov. Code, § 51282.) These are found in Government Code section 51220, where the Legislature describes the purpose and public interests served by the Williamson Act: (a) “the preservation of a maximum amount of the limited supply of agricultural land,” (b) “the discouragement of premature and unnecessary conversion of agricultural land to
What did the council find? As the majority must acknowledge {ante, p. 848), the council did make the findings which were explicitly required by the statute to warrant its order of cancellation. It expressly found that the partial cancellation sought by real parties “is not inconsistent with the purposes of the California Land Conservation Act of 1965 and is in the public interest . .. .” (Hayward City Council Res. No. 79-012 C.S.) Moreover, the council specifically related those findings to the legislative purpose and public interest enunciated in the statute. On the basis of the record before it, the council determined that the removal of the “relatively small area” from the agricultural preserve would not jeopardize the agricultural use of surrounding lands, that the proposed subdivision development “is neither premature nor unnecessary” and would serve the public interest in providing required “housing accommodations as an orderly extension of contiguous residential subdivision,” and that the proposed dedication of 30 of the 93 acres to the City of Hayward as an open space “will contribute to the esthetic, physical, and open space environment of . . . the City as a whole.”
Such conclusions were wholly proper. They reflect the considered judgment of the local entity, speaking through its duly elected officials, after careful review of competing considerations and the exercise of an informed discretion on matters within the prerogative of local government. In making these findings, the Hayward City Council acted in full recognition of, and obedience to, the Legislature’s expressed concerns (Gov. Code, § 51220) and in accordance with its statutory direction {id., § 51282).
In reviewing the council’s cancellation pursuant to these statutes, our next—and final—concern should be with the sufficiency of the record to support these findings. (Code Civ. Proc., § 1094.5, subds. (b), (c).) At this point the majority in my view strays far afield. “Reading between the lines” of the Williamson Act it discerns unexpressed legislative concerns and implicit requirements for additional council findings before cancellation is permitted.
The majority finds reversible error in the council’s failure to make formal findings as to the “considerations” set forth in the statute relat
Jn contrast to Topanga, the statute before us does require certain precancellation findings. The Legislature in Government Code section 51280 described the purpose of the termination of a Williamson Act contract, permitting such cancellation “only when the continued dedication of land under such contracts to agricultural use is neither necessary nor desirable for the purposes of this chapter.” Accordingly, the Legislature insisted upon findings that any proposed, cancellation be “not inconsistent” with those purposes and be “in the public interest.” (Id., § 51282.) Thus the statutory scheme here, quite unlike that in Topanga, does require “findings sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the board’s action.” (Topanga, supra, 11 Cal.3d at p. 514.) Consequently, there is no necessity for judicially engrafting upon the Williamson Act any requirement that a local city council make any additional findings in order to permit appropriate section 1094.5 review. Topanga has very limited precedential force in evaluating the action of the Council of the City of Hayward.
After identifying the “public interests” which it is the purpose of the act to further, and acknowledging that the city council properly considered those interests in deciding to cancel the contract in question, the
Acknowledging that'the Legislature “was primarily interested in the preservation of open space land and the orderly development of urban areas” {ante, p. 857, italics added), the majority then notes that the same criteria of open space preservation and orderly urban development govern both the initial entry of the parties into such agreements and their cancellation. {Ante, p. 857.) Finally, the majority concedes that the city did take into consideration “the statutory purposes of preserving open space and achieving orderly development ...” in cancelling the contract in question. {Ante, p. 855.) Where, then, does the majority find error? In the council’s failure to “consider the Legislature’s intent to limit cancellation to the extraordinary cases in which nonrenewal is inappropriate.” {Ante, p. 855.)
No such intent, however, appears anywhere in the legislation we are construing. In declaring that “there must be substantial evidence that awaiting the normal termination of the contract would fail to serve the purposes that purport to justify cancellation” {ante, p. 854), the majority makes the very error of which it accuses the council: it “thereby read[s] into the statute a refinement neither explicit nor implicit in its provisions.” {Ante, p. 856.) Similarly, it distorts the act in concluding that cancellation becomes inconsistent with its purposes “if the objections to be served by cancellation should have been predicted and served by nonrenewal at an earlier time, or if such objectives can be served by nonrenewal now.” {Ante, p. 855.) Where is the authority for such a novel proposition? With due deference, I suggest that there is none.
The majority’s conclusion that “the Legislature intended cancellation to be approved only in the most extraordinary circumstances” {ante, p. 853) is unsupportable. Equally unfounded is its assertion that unique “purposes” or “objectives” must be established to warrant cancellation. To the contrary, the purpose of the cancellation provision is expressly declared, quite simply and clearly, to be “to provide relief from the provisions of [land preservation] contracts . . . when the continued dedication of land under such contracts to agricultural use is neither necessary nor desirable for the purposes of this chapter.” (Gov. Code, § 51280, italics added.) Nowhere among the statutory grounds or considerations allowing cancellation is there any indication that exigent or “extraordinary” circumstances are required before cancellation may be
Neither do the statutory provisions for partial recapture of tax benefits enjoyed by the landowner upon cancellation of such a contract (see Gov. Code, § 51283.1) express any legislative policy opposing cancellation. Rather, they represent an attempt to adjust the equities between the landowner and the taxing authorities. In the event cancellation is deemed otherwise appropriate and is the chosen method of termination, the phased-in increase in taxes to which the taxing authority would be entitled under the nonrenewal provision of the act (see Rev. & Tax. Code, § 426) is approximated by such recapture. The Legislature’s attempt to achieve fairness demonstrates neither its “resolve to make cancellation the exception to the general rule,” as suggested by the majority {ante, p. 853), nor general hostility to the cancellation procedure, where appropriate.
The majority’s error in thus judicially adding to the statutory requirements for cancellation stems from its focus on only one legislative purpose as being of “paramount importance,” namely, “the preservation of land in agricultural production. ...” {ante, p. 857), while ignoring the purpose of “orderly development” which it must recognize elsewhere {ante, p. 856).
Having selected the former goal as the more worthy, the majority then proceeds to adopt whatever canon of construction will be most expedient to support its reading of the Williamson Act. Thus it chooses to construe the cancellation provision of the act “narrowly” {ante, p. 864) in contrast to the “flexible approach” which it uses in ascertaining whether there is available other “proximate” land for the “use” intended for the land to be released upon cancellation. {Ante, p. 860.) Such obvious juggling of interpretive techniques makes readily apparent the majority’s labored effort to “interpret” the act to achieve a result not intended by the Legislature. The issue, of course, is not whether the majority has thereby fashioned a better law. The salient point is that it is no part of our function of appellate review to legislate at all.
In unilaterally promulgating new findings requirements, the majority tightens a steel band around the statutory scheme. The Legislature described explicitly and exclusively its purposes in authorizing the agreements in question (Gov. Code, § 51220) and it permits cancellation of such agreements when they are no longer necessary or desirable
The impropriety of this judicial redrafting of the Williamson Act is made manifest when the majority applies one of its new judicial conditions to the facts before us. The majority recites that in 1969 the city’s planning department noted that the land was “capable of being developed,” that in 1971 the city’s plan map designated the parcel for “suburban residential use” and that the Mayor of Hayward did not feel “‘that it should have gone in nine years ago,... because it was so clearly to me the next piece of land that would be developed ....’” {Ante, p. 855.) On these facts the majority reasons, mistakenly in my opinion, that because some Hayward officials nine years earlier had recognized that the subject property was suitable for commercial development, the council therefore should not be permitted, belatedly, to acknowledge that fact and now withdraw the parcel from Williamson Act treatment. Rather, the majority concludes that the council must sit idly, by for an additional extended period to permit the balance of the 10-year contract to run its course before the procedural handcuffs may be removed both from city officials and from property owners. In my view, such wooden and mechanical application of a statute defies logic, good community planning and common sense.
The fact that the city planner recommended nine years earlier that the subject property not be included in an agricultural preserve and that it be designated “suburban residential use” clearly establishes that its release in 1979 from Williamson Act control was neither premature nor inconsistent with the purposes of the act. For nine years the landowner had the benefit of favorable Williamson Act treatment. For the identical period the public had the full benefit of the green-belt agricultural preserve. The public now will also receive, free of cost, by outright dedication to the City of Hayward approximately one-third of the subject property for “open space environment.” A development plan, long anticipated, having fully matured, a municipality should have flexible authority and sufficient elbow room to accommodate both public and private interests to changing conditions.
The constraining procedural straightjacket into which the majority gratuitously locks California municipalities is not required by any provision or purpose of the Williamson Act. Certainly it is not compelled by
Sufficiency of the Evidence
The findings required by the statute (and made by the council) are fully supported by substantial evidence in light of the whole record. {Id., § 1094.5, subds. (b), (c).) The administrative record here contains an environmental report (required by statute) certified and approved by the council. The report notes that only residential subdivisions and previously “contracted” agricultural preserve lands are contiguous to the 93-acre parcel in question. 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.”
There was additional testimony as to the unavailability of other proximate land for housing development of the type here contemplated —upper middle income. Further evidence established, as well, the uneconomic character of continuing the existing agricultural use of the land in question. The fact that there may have been some countervailing testimony offered on some of these matters, of course, does not demonstrate that the council’s findings were not supported by substantial evidence. In determining whether the administrative agency’s findings are so supported, “the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision.” (Topanga, supra, 11 Cal.3d at p. 514.)
The majority frankly admits that “Substantial evidence does appear in the record to support the council’s findings that the land was a logical site for the extension of suburban development, that dedication of 30 acres of the site to open space was consistent with the purposes of the act, and that development of the parcel would not seriously jeopardize nearby agricultural uses.” {Ante, p. 854.) Nonetheless, my colleagues hold that such evidence does not support the council’s ultimate finding of consistency with the purposes of the act. The majority so opines on the basis that “It is inconsistent with the purposes of the act to allow abrupt cancellation if nonrenewal would accomplish the same objective.” (ibid.) As indicated, however, such an assertion lacks any precedential authority, misconstrues the legislative purpose of the act, and directly conflicts with its clear language.
The importance of California’s agricultural industry to the state and nation cannot be disputed. That is not the issue before us. Its preservation is essential. It is disingenuous, however, for the majority to rely upon such generalities in interfering with the informed, considered decision of the Hayward City Council that cancellation of the agreement in question as to this property at this time will not adversely affect that laudable goal. We cannot presume that the council, as a responsible local agency, is insensitive either to agriculture or to esthetics. There is substantial evidence in the record as a whole supporting the findings of the council that, on the facts before it, such cancellation is not inconsistent with the purposes of the Williamson Act and is in the public interest. Because those findings in turn support the council’s order of cancellation, no abuse of discretion appears and that should be the end of our inquiry.
The council’s order should be affirmed.
Clark, J., concurred.
The petition of respondent City of Hayward and real party in interest Ponderosa Homes for a rehearing was denied March 26, 1981, and the judgment was modified to read as printed above. Richardson, J., was of the opinion that the petition should be granted.
Opinion of the Court
Opinion
In this administrative mandamus proceeding (Code Civ. Proc., § 1094.5) we are asked for the first time to construe the provisions of the California Land Conservation Act of 1965 (Gov. Code, § 51200 et seq., hereinafter called the Williamson Act) that authorize cancellation of land preservation contracts made pursuant to that act. The Sierra Club and others (Sierra Club)
Sierra Club contends that the findings made by the city council are not supported by substantial evidence, and that they do not support the
I
The Sodas own a 2,300-acre cattle ranch in the foothills rising along the eastern edge of the City of Hayward. Until 1979, 600 acres of the land were part of an agricultural preserve created by Hayward in 1969, and were subject to a Williamson Act agreement that restricted the land to agricultural use or compatible uses for 10 years. Because the agreement had been annually renewed since 1969, the 10-year restriction had not begun to lapse.
In January 1978 the Sodas petitioned the city for cancellation of their land preservation agreement as to a 9 3-acre parcel of their ranch. In the same month, Ponderosa Homes (Ponderosa) filed with the city a zone change application requesting that the 93-acre parcel be rezoned from “agricultural” to “planned development” so as to enable Ponderosa to build thereon an upper-middle income residential subdivision. The city planning commission denied Ponderosa’s application, and Ponderosa appealed to the city council. Early in 1979, the city council considered both the zone change application and the cancellation request.
The Williamson Act authorizes approval of a cancellation request only if the relevant agency finds “(a) That the cancellation is not inconsistent with the purposes of [the act]; and [11] (b) That cancellation is in the public interest.” (Gov. Code, § 51282, 1st par.) Section 51282 continues: “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.
After holding public hearings as required by statute (Gov. Code, § 51284), the city council cancelled the contract and granted the requested zoning change, clearing the way for the proposed subdivision. The council made the following findings to justify its decision:
“The Council hereby determines that the partial cancellation of the .. . Land Conservation Agreement is not inconsistent with the purposes of the California Land Conservation Act of 1965 and is in the public interest by reason of the following:
“Removal of this relatively small area from the agricultural preserve will not jeopardize the continued use of the remaining lands in the preserve for grazing purposes;
“Potential conversion to subdivision development by persons other than applicants [i.e., by Ponderosa] is neither premature nor unnecessary; such development would be of benefit to urban dwellers requiring housing accommodations as an orderly extension of contiguous residential subdivisions;
“Potential retention within the subject land and dedication to the City of Hayward as open space of an area in excess of 30 acres will contribute to the esthetic, physical, and open space environment of adjacent property owners and of the City as a whole.” (Hayward City Council Res. No. 79-012 C.S.)
II
The city raises a preliminary objection to our consideration of the case. It contends that its decision to cancel the contract is legislative in nature and is therefore reviewable only in an ordinary mandamus action (Code Civ. Proc., § 1085), and reversible only if arbitrary, capricious, or entirely lacking in evidentiary support. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, fn. 2 [112 Cal.Rptr. 805, 520 P.2d 29].) The city would thus have us
Firmly established precedent, however, compels a different conclusion. We have repeatedly held that administrative mandamus is appropriate “for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer ....” (Code Civ. Proc., § 1094.5, subd. (a); see, e.g., Boren v. State Personnel Board (1951) 37 Cal.2d 634, 637 [234 P.2d 981]; Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 101 [280 P.2d 1]; Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514, fn. 12 [113 Cal.Rptr. 836, 522 P.2d 12].) The statute at hand clearly requires a public hearing (Gov. Code, § 51284) and discretionary weighing of evidence in order to make required findings (id., § 51282). Furthermore, cancellation proceedings are classically adjudicatory in nature: the landowner must initiate the proceedings by filing a petition for cancellation; the council sits as arbiter, hearing evidence from proponents and opponents; and in every case the ultimate decision, unlike most zoning and annexation decisions, directly affects only one parcel. (Compare Arnel, supra, 28 Cal.3d 511, holding that a zoning initiative that affected only three parcels was nonetheless a legislative act.) Accordingly, we agree with the trial court that cancellation of a land preservation agreement is adjudicatory and therefore reviewable in a proceeding brought under the provisions of section 1094.5.
We reach the question whether the city council abused its discretion in cancelling the land preservation agreement. A comprehensive answer must begirt with an analysis of the Williamson Act and its purposes.
The Williamson Act was the Legislature’s response to two alarming phenomena observed in California: (1) the rapid and virtually irreversible loss of agricultural land to residential and other developed uses (see Falasco, Preserving California’s Agricultural Green, prepared for Sen. Com. on Governmental Organization (1976) p. 59; Land, Unraveling the Rurban Fringe: A Proposal for the Implementation of Proposition Three (1968) 19 Hastings L.J. 421, 422-424 (hereinafter Unraveling the Rurban Fringe)’, Fellmeth, The Politics of Land (1973) pp. xv, 29), and (2) the disorderly patterns of suburban development
To combat the problem, the Legislature passed the Williamson Act on the basis of the following findings:
“(a) That the preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state’s*851 economic resources, and is necessary not only to the maintenance of the agricultural economy of the state, but also for the assurance of adequate, healthful and nutritious food for future residents of this state and nation.
“(b) That the discouragement of premature and unnecessary conversion of agricultural land to urban uses is a matter of public interest and will be of benefit to urban dwellers themselves in that it will discourage discontiguous urban development patterns which unnecessarily increase the costs of community services to community residents.
“(c) That in a rapidly urbanizing society agricultural lands have a definite public value as open space, and the preservation in agricultural production of such lands, the use of which may be limited under the provisions of this chapter, constitutes an important physical, social, esthetic and economic asset to existing or pending urban or metropolitan developments.” (Gov. Code, § 51220.)
The act empowers local governments to establish “agricultural preserves” consisting of lands devoted to agricultural uses and other uses compatible therewith. (Id., § 51230.) Upon establishment of such preserves, the locality may offer to owners of included agricultural land the opportunity to enter into annually renewable contracts that restrict the land to open space use for at least 10 years. (Id., §§ 51240, 51242, 51244.)
The above-described nonrenewal procedure is the “intended and general vehicle for contract termination.” (Land Use Research Group (U.C. Davis), Measures for Strengthening the California Land Conservation Act: An Economic and Legal Analysis, Rep. to the Assem. Select Com. on Open Space Lands (1974) p. 63.) The Legislature recognized that in rare instances unforeseen events might require the release of land from its contractual restriction before that restriction lapses by its own terms. The Legislature declared, however, that cancellation of Williamson Act contracts is permissible “only when the continued dedication of land under such contracts to agricultural use is neither necessary nor desirable for the purposes of [the act].” (Italics added; Gov. Code, § 51280.) The cancellation provisions were included “As a means of dealing with strictly emergency situations where the public interest no longer dictates that the contract be continued .... ” (Italics added; Preliminary Rep. of Joint Com. on Open Space Land (1969) p. 10, Appen. to Sen. J. (1969 Reg. Sess.).)
Not only do existing authorities unanimously support a narrow application of the cancellation provisions, an analysis of the effect of lenient construction shows that “easily available cancellation will render the Act ineffective as a land-use control device.” (Land Use Research Group, op. cit. supra, at p. 73.) The act is intended to preserve open space land. But if those with an eye toward developing such land within a few years are allowed to enroll in contracts, enjoy the tax benefits during their short holding period, then, cancel and commence construction on a showing that the land is ripe for needed housing, the act would simply function as a tax shelter for real estate speculators. The Legislature’s findings clearly spell out its intent, and nowhere among them appears a motivation to subsidize those who would subdivide. On the contrary, the overwhelming theme of the legislation is the need to preserve undeveloped lands in the face of development pressures.
Furthermore, apparently in response to criticism of the cancellation provisions as inviting abuse of the act (Land Use Research Group, op. cit. supra, at p. 73; Fellmeth, op. cit. supra, at pp. 41-42), in 1978 the Legislature reaffirmed its resolve to make cancellation the exception to the general rule of termination by nonrenewal. In addition to a cancellation fee, which had accompanied cancellation since the inception of the act (Gov. Code, § 51283), the Legislature imposed a further charge partially recapturing the tax benefits enjoyed by the landowner under the contract (Gov. Code, § 51283.1).
In short, we harbor no doubt that the Legislature intended cancellation to be approved only in the most extraordinary circumstances. Having in mind the structure of the act and the Legislature’s plain declaration of purpose, we look next to the details of the cancellation provisions to determine more precisely the nature of those circumstances.
We start with the statute’s requirement of a finding that the cancellation is “not inconsistent with the purposes of” the act. (Gov. Code, § 51282, 1st par., subd. (a).) Although the city council made such a finding, the evidence to justify it was not substantial.
Substantial evidence does appear in the record to support the council’s findings that the land was a logical site for the extension of suburban development, that dedication of 30 acres of the site to open space use was consistent with the purposes of the act, and that development of the parcel would not seriously jeopardize nearby agricultural uses. We do not believe, however, that the evidence supporting those findings is sufficient to sustain the ultimate determination of consistency with the purposes of the act. We have seen that the Legislature intended nonrenewal as the ordinary contract termination method; no evidence appears in the record to demonstrate that compliance with the nonrenewal process would have interfered with the city’s orderly development or defeated any other purpose served by cancellation. It is inconsistent with the purposes of the act to allow abrupt cancellation if nonrenewal would accomplish the same objective. Therefore, there must be substantial evidence that awaiting the normal termination of the contract would fail to serve the purposes that purport to justify cancellation.
Furthermore, if the parties are able to predict generally when the land will be ripe for development, the purposes of the act are defeated if the owner is nonetheless allowed to continually renew his contract and extend his commitment year after year, then cancel whenever development becomes most profitable. In this case, the evidence shows that both parties to the agreement knew or should have known in 1969 that the subject land would soon be ripe for development, yet both continued to renew the agreement year after year until the zone change application in 1978.
Finally, it is the purpose of the act to extend tax benefits to those who voluntarily subject their land to “enforceable restrictions.” (Cal. Const., art. XIII, § 8.) If cancellation were a simple matter of showing that the restricted land is now more valuable for a developed use, we doubt whether Williamson Act contracts could qualify as “enforceable restrictions” making the land eligible for taxation on use value rather than market value under the Constitution. Lax cancellation procedures might thereby defeat the intent of the Legislature to reduce the taxes on agricultural land in return for long-term binding commitments.
For the above reasons, we hold that cancellation is inconsistent with the purposes of the act if the objectives to be served by cancellation should have been predicted and served by nonrenewal at an earlier time, or if such objectives can be served by nonrenewal now. Although the city took into consideration the statutory purposes of preserving open space and achieving orderly development, as we think it must, it did not consider the Legislature’s intent to limit cancellation to the extraordinary cases in which nonrenewal is inappropriate.
B.
The act also requires a finding that cancellation is “in the public interest.” (Gov. Code, § 51282, subd. (b).) We face the inevitable dispute over that imprecise phrase, the vision of which is often in the eye of the beholder. Fortunately in this instance the Legislature provides reasonably clear guidance for deciding which “public” and what “interests” are to be considered.
Inasmuch as a decision that cancellation is in the public interest reflects the conclusion that continued restriction is contrary to the public interest, the criteria for originally restricting the use of the land seem equally relevant to cancellation. Thus, preservation of land in agricultural production is of paramount importance. In providing for cancellation, however, the Legislature recognized the relevance of other interests as well.
The government’s decision to enter such an agreement is a conclusion to bestow tax benefits on the landowner in return for the achievement of a specific goal—preservation of open space land. In making that decision, normally the only concern is whether the government will achieve the declared purposes in return for the revenues it will forego. But in providing for cancellation, the Legislature appears to have entertained the possibility that other public concerns—e.g., housing, needed services, environmental protection through developed uses, economic growth or employment—could conflict with the interests in open space. Otherwise, it would be difficult to conceive of any instance in which cancellation would be appropriate. But because the act is explicitly and unequivocally protective of the open space objectives, it must be shown that they are substantially outweighed by other public concerns before cancellation can be deemed “in the public interest.”
In this case, the record discloses a need for additional upper-income housing of the proposed type in the Hayward area. It also discloses,
C.
Next we discuss the requirement that before an alternative use of the restricted land is considered, the decision-maker must determine there is “no proximate, noncontracted land suitable for the use to which it is proposed the contracted land be put.” (Gov. Code, § 51282, 2d par.)
We are first asked whether an explicit finding regarding such proximate alternative sites is required. The answer is dictated by our holding in Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506 (hereinafter Topanga). There, a local planning commission granted a zoning variance on the basis of certain features of the applicant’s property rendering it unattractive for the type of development for which it was zoned. But state law authorizes zoning variances only upon a showing of “special circumstances” distinguishing the subject property from surrounding parcels (Gov. Code, § 65906), and therefore requires a comparative analysis of the zoned properties. Although the evidence may have supported a variance on the basis of a comparative analysis, the record did not disclose whether such an analysis was in fact made. We therefore held that the grant of the variance was an abuse of discretion because the commission failed to “render findings sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the board’s action.” (Topanga, at p. 514.) In support of our conclusion, we found that “implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. ... [In section 1094.5,] the Legislature sought to direct the reviewing court’s attention to the analytic route the administrative agency
The problem we faced in Topanga recurs here: we are left without a basis for determining whether the administrators strayed from the statutorily created pathway from evidence to ultimate conclusion. The Williamson Act allows the local agency to consider alternative uses of the restricted land only if it first determines that suitable nonrestricted sites are unavailable. The city admittedly considered an alternative use, subdivision construction, in cancelling the contract. We must therefore determine whether it fulfilled the statutory prerequisite of considering proximate alternative sites.
In some cases, an agency’s fulfillment of statutory prerequisites may be obvious to the reviewing court from the record of the agency proceedings, and no formal findings may be necessary. If the agency is required to hold public hearings, for instance, the record will generally reveal whether it has done so. But in this case we do not know, and cannot ascertain from a review of the evidence, whether or riot the city council complied with the statutory prerequisite. That it did in fact consider the proposed use of the restricted property is no proof that it had previously looked for and failed to find proximate alternative sites for that use. Nor is the presence in the record of scattered and contradictory evidence that alternative sites are unavailable
Moreover, judicial vigilance is needed to prevent frustration of the land preservation goals of the Williamson Act. Just as in Topanga superficial judicial review could have subverted the decision-making structure of the zoning variance scheme, and thereby rendered meaningless applicable state and local legislation prescribing variance requirements {Topanga, at p. 517), so here could it completely emasculate the rigorous requirements that must be met to justify cancellation of a land preservation contract.
In addition to their disagreement over the necessity of findings, the parties dispute the correct application of the words “proximate” and “use” as they are employed in the second paragraph of Government Code section 51282. Although it might be possible to frame a rigid and precise definition of those terms, we believe the Williamson Act requires a flexible approach.
We believe “proximate” should be construed in the same manner courts have contrued the similar word “adjacent”; that is, to effectuate “the legislative intent and spirit of the act, though a literal or different construction may be possible.” (Bakersfield Community Hosp. v. Department of Health (1977) 77 Cal.App.3d 183, 199 [142 Cal.Rptr. 773], citing Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672].) Thus courts have found locations up to seven and one-half miles apart “adjacent” for the purposes of a particular statutory scheme. (Oro Madre Unified Sch. Dist. v. Amador County Bd. of Education (1970) 8 Cal.App.3d 408 [87 Cal.Rptr. 250].)
The purposes of the Williamson Act require that “proximate” not be construed to unreasonably limit the search for suitable noncontracted land. It would serve no purpose of the act to reject unrestricted property perfectly suited to fill the needs addressed by the proposal simply because that property is not in the immediate vicinity of the restricted land. In fact, under some circumstances land several miles from the proposed development site may be near enough to serve the same purposes. We therefore hold that “proximate” property means property close enough to the restricted parcel to serve as a practical alternative for the proposed use.
To conclude, we hold that an explicit finding is needed on the issue of proximate alternative sites and that the decision-maker should apply the words “proximate” and “use” in the manner described above.
D.
One provision of section 51282 remains to be discussed. It requires that before the agency considers the uneconomic quality of the lands for agricultural use, it must determine that there is “no other reasonable or comparable agricultural use to which the land may be put.” {Id., 3d par.) In this case, the marginal productivity of the land in its present use was mentioned before the city council, remarked upon by council members, and made part of the findings in the resolution certifying the EIR. We cannot discern from the record, however, whether the council made the prerequisite determination to justify its consideration of the uneconomical character of the existing use. Our earlier discussion of the need for findings with regard to proximate alternative sites is equally applicable here.
IV
In adopting the Williamson Act, the Legislature attempted to safeguard for the citizens of our state a legacy of rich and scenic land. California’s agricultural industry is not only a vital part of the state’s economy, it is a crucial source of nourishment for the entire nation, supplying 25 percent of all table foods and 40 percent of all fresh produce consumed by Americans. (Falasco, op. cit. supra, p. 51.) Unspoiled agricultural lands near cities provide not just food, but also a welcome scenic respite from the cluttered urban landscape.
Although the Williamson Act has been criticized as not reaching far enough to protect our agricultural heritage (id. at p. 65; Fellmeth, op. cit. supra, at pp. 41-42), it has also been generally recognized as an important first step in that direction. (Fellmeth, op. cit. supra, at p. 42; Unraveling the Rurban Fringe, supra, at p. 433; Preliminary Rep. of the Joint Com. on Open Space Land, supra, at p. 11.) To insure that
Manifestly we cannot and should not attempt to catalogue all the hypothetical circumstances in which cancellation would be appropriate. But we can give guidance to local governments in matters properly before us as to the correct interpretation of the statutory provisions they must apply. For the reasons stated, we conclude that the Hayward City Council incorrectly applied the cancellation provisions of the Williamson Act in the case at bar.
The judgment is reversed and the cause remanded to the superior court with directions to issue a writ of mandamus requiring respondent to vacate its cancellation of the Williamson Act agreement. The superi- or court is further authorized to award plaintiffs trial and appellate attorneys’ fees if it determines that this case “has conferred a significant benefit ... on the general public or a large class of persons” and that “the ... burden of private enforcement [is] such as to make the award appropriate.” (Code Civ. Proc., § 1021.5, subds. (a), (b).) The trial court shall determine the amount of any fees to be awarded. Plaintiffs shall receive costs.
Bird, C. J., Tobriner, J., and Newman, J., concurred.
The other petitioners are Hayward Hills Property Owners Association, Hayward Area Planning Association, People for Open Space, and Sherman Lewis.
The parties dispute the legitimacy of some of the trial court’s determinations because it allegedly'made certain procedural errors in arriving at them. We need not address these matters because we are not bound by the trial court’s rulings on the law. In an administrative mandamus action “wherein no limited trial de novo is authorized by law,.. .the trial court itself exercises an essentially appellate function in that only errors of law appearing on the administrative record are subject to its cognizance. ... [Tjherefore, the trial and appellate courts occupy identical positions with regard to the administrative record, and the function of the appellate court, like that of the trial court, is to determine whether that record is free from legal error.” (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 915-916 [80 Cal.Rptr. 89, 458 P.2d 33].)
This phenomenon is variously known as “patchwork,” “checkerboard,” and “leapfrog” development, or more ominously, “scatteration,” “slurbs,” and “urban sprawl.” (See Unraveling the Rurban Fringe, supra, at p. 423, for works in which the last three terms are used.)
Originally the Williamson Act distinguished between “contracts” for the preservation of prime agricultural land, which required the approval of the State Director of Agriculture and ordinarily entitled the landowner to subsidy payments out of public funds, and “agreements” for the preservation of any land within an agricultural preserve, which required no state approval and created no entitlement to payments. (Former Gov. Code, §§ 51240, amended in 1969; 51250, repealed in 1972; 51255, re
The local government is also free to terminate by giving notice of nonrenewal. (Gov. Code, §§ 51236, 51246.)
See Land Use Research Group, op. cit. supra, at page 63: “A secondary means of contract termination, immediate cancellation, is permitted only under exceptional circumstances.” See also Unraveling the Rurban Fringe, supra, at page 433, footnote 62: “The cancellation provisions appear to be limited to cases where due to changed circumstances it is no longer desirable to maintain the preserve.”
Even after the zone change application was filed, the Sodas attempted to keep the agreement intact by making their request for cancellation conditional upon the success of that application. (Letter from Y. C. Soda to William Handley, city manager.)
According to the preliminary report, only one cancellation petition had been granted before 1969. In recent years however, local governments have been much more receptive to cancellation requests and the trend is toward a substantial increase in cancelled contracts. A recent survey complied the following cancellation statistics:
Fiscal Year All Land (acres) (parcels) Urban Prime Land (acres)
1972-1973 710 8 15
1973-1974 6,330 14 79
1974-1975 513 14 303
1975-1976 3,504 27 64
1976-1977 3,385 24 302
1977-1978 12,148 110 354
1978-1979 7,181 95 1,122
(State Bd. of Equalization, Assessment Practices Survey (1980) appendix III, p. 7.) In light of the purposes of the Williamson Act, the figures are especially alarming when coupled with recently published findings revealing that the San Francisco Bay Area alone has already lost nearly three-fourths of a million acres of farmland since 1950 and is losing more every day at an accelerating rate. (People for Open Space, Endangered Harvest: The Future of Bay Area Farmland (1980) p. 64.)
Section 51223 was deleted in 1969 when the agreement provisions of the act were eliminated. (See fn. 4, ante.) Nonetheless, it is obviously relevant to our inquiry regarding the meaning the Legislature ascribed to the term “public interest” in the 1965 cancellation provisions, as applied to an agreement formed before the 1969 deletion.
Evidence tending to support that conclusion includes (1) an equivocal statement by the mayor that in the immediate vicinity of the Soda property no other land is available for large scale executive-type housing, although the “Batteate property... is wending its way to us”; (2) the conclusion of the 1978 planning department report, rejected by the planning commission, that “no other parcel is proximate and suitable for the size, type and use proposed”; and (3) a statement by Ponderosa’s representative that no proximate land is available for a similar housing development. On the other hand, (1) the EIR mentions alternative sites that “could require less investment in capital costs
See Land Use Research Group, op. cit. supra, pages 75-76, for a discussion of the various incentives tempting local governments to improperly cancel land preservation contracts.
It is a well-established legal principle that the purpose of a statute is a guiding star in defining the language it employs: “‘the objective sought to be achieved by a statute
Reference
- Full Case Name
- 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
- Cited By
- 49 cases
- Status
- Published