The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 93-1205
of :
: May 12, 1994
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE GILBERT FERGUSON, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following questions relating to the San Joaquin Hills
Transportation Corridor:
1. Did the County of Orange have legal authority to abandon that portion of
Newport Coast Drive previously known as Bonita Canyon Road to the San Joaquin Hills
Transportation Corridor Agency?
2. Did the County of Orange have legal authority to abandon that portion of
Newport Coast Drive previously known as Pelican Hill Road to the San Joaquin Hills Transportation
Corridor Agency?
3. Is the Irvine Company precluded from further developing its property if
Newport Coast Drive becomes a toll road?
4. Did the San Joaquin Hills Transportation Corridor Agency give sufficient
legal notice that it intended to charge a toll for use of Newport Coast Drive?
CONCLUSIONS
1. The County of Orange had the legal authority to convey that portion of
Newport Coast Drive previously known as Bonita Canyon Road to the San Joaquin Hills
Transportation Corridor Agency.
2. The County of Orange had the legal authority to convey that portion of
Newport Coast Drive previously known as Pelican Hill Road to the San Joaquin Hills Transportation
Corridor Agency.
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3. The Irvine Company is not precluded from further developing its property if
Newport Coast Drive becomes a toll road.
4. The San Joaquin Hills Transportation Corridor Agency gave sufficient legal
notice that it intended to charge a toll for use of Newport Coast Drive.
ANALYSIS
The San Joaquin Hills Transportation Corridor Agency ("Agency") is a public agency
established in 1986 pursuant to the Joint Exercise of Powers Act (Gov. Code, § 6500 et seq.)1 and
special legislation (§ 66484.3). It consists of the County of Orange and the cities of Costa Mesa,
Dana Point, Irvine, Laguna Hills, Laguna Niguel, Mission Viejo, Newport Beach, San Clemente,
San Juan Capistrano, and Santa Ana. Its main purpose is to oversee the construction of a 17-mile
transportation corridor between San Juan Capistrano and Newport Beach. (See Committee of Seven
Thousand v. Superior Court (1988) 45 Cal.3d 491, 495-497.)
The questions presented herein relate to the last approximately two miles of the
corridor consisting of the northerly portion of Newport Coast Drive. This segment was previously
a part of Bonita Canyon Road and what was known as Pelican Hill Road. These two roads were
connected in 1991 as a result of a development agreement executed by the County of Orange and
the Irvine Company, a private land developer. (See §§ 65864-65869.5.)
Pursuant to its statutory authority, the Agency will collect tolls at numerous points
along the corridor. A 25-cent toll will be imposed on those persons using Newport Coast Drive at
its connection with the last several miles of the corridor. It is the placement of this particular toll
booth which has precipitated the questions presented for our analysis.2
1. Did the County Have Legal Authority To Abandon Bonita Canyon Road?
The procedures governing the abandonment of public streets and highways by cities
and counties are set forth in the Public Streets, Highways, and Service Easements Vacation Law
(Sts. & Hwys. Code, §§ 8300-8336). Streets and Highways Code section 8309 is controlling herein.
It provides: "`Vacation' means the complete or partial abandonment or termination of the public
right to use a street, highway, or public service easement."
For an abandonment of a public thoroughfare to occur (i.e. "vacation"), the public's
right to use the thoroughfare must be terminated. (City of San Pablo v. East Bay Mun. Utility Dist.
(1977) 75 Cal.App.3d 609, 612-613; City of Rancho Palos Verdes v. City Council (1976) 59
Cal.App.3d 869, 885-887, 891; People ex rel. Dept. Pub. Wks. v. Vallejos (1967) 251 Cal.App.2d
414, 418-419; Stevenson v. City of Downey (1962) 205 Cal.App.2d 585, 590-591.) As stated in City
of Los Angeles v. Fiske (1953) 117 Cal.App.2d 167, 172: "The act of vacating can be done only
upon a finding that the property in question is unnecessary for present or future uses as a street. (Sts.
& Hwys. Code, §§ 8300-8331.)"
1
All references hereafter to the Government Code are by section number only.
2
The concern expressed by some property owners is that people will avoid this section of the
corridor because of the toll and will instead use other public streets generating traffic in their
particular locality.
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In the situation herein, the portion of Newport Coast Drive at issue (former Bonita
Canyon Road) will be utilized as an integral part of the transportation corridor. The segment is
necessary for both present and future use as a public highway. No legal abandonment by the county
has or will take place.
Insofar as Newport Coast Drive will become a freeway or expressway (albeit one
upon which a toll is exacted), section 941.1 of the Streets and Highways Code provides:
"The board of supervisors may lay out, acquire, construct, and maintain any
section or portion of any street or highway within the county as a freeway or
expressway and may make any existing street or highway a freeway or expressway."3
In answer to the first question, therefore, we conclude that the Agency, as a joint
exercise of powers agency having the authority to exercise any common power of its constituent
agencies (§§ 6502, 6508), had the authority to convert the present northerly portion of Newport
Coast Drive (formerly Bonita Canyon Road) into the road system of the transportation corridor.
2. Did The County Have Legal Authority To Abandon Pelican Hill Road?
While Bonita Canyon Road was an existing street at the time the Agency was formed,
the other portion of Newport Coast Drive requiring examination was built in 1991 by the Irvine
Company as part of its development agreement with the county. This portion lies within the City
of Irvine.
Did the county properly abandon Pelican Hill Road? Just as no "abandonment" has
occurred with respect to Bonita Canyon Road, the county has not "abandoned" this portion of what
is now Newport Coast Drive. We conclude that the county had the legal authority to convey Pelican
Hill Road to the Agency.
In 1988 the county and the City of Irvine utilized the provisions of sections 1700-
1706 of the Streets and Highways Code to make Pelican Hill Road a county highway. Streets and
Highways Code section 1700 provides that a county board of supervisors may "declare any highway
in the county lying in whole or in part within a city to be a county highway" for various purposes,
including the acquisition of rights-of-way and improving the highway. The county accepted the
dedication of this particular right-of-way as part of the development agreement executed with the
Irvine Company. When the improvements were completed, the board of supervisors took action
pursuant to section 1704 of the Streets and Highways Code to declare the road no longer a county
highway.
The county and the Agency's constituent cities are authorized to "contribute [to the
Agency] . . . rights-of-way . . . toward the expense of building, acquiring, and maintaining the"
transportation corridor.4 Subdivision (f) of section 66484.3 provides:
3
Similar authority is granted to cities in section 1800 of the Streets and Highways Code.
4
Section 66484.3, subdivision (f) grants to the Agency the powers set forth in the El Dorado
County Toll Tunnel Authority Act (Sts. & Hwys. Code, §§ 31100-31246).
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"The county or a city imposing fees pursuant to this section may incur an
interest-bearing indebtedness for the construction of bridge facilities or major
thoroughfares. The sole security for repayment of the indebtedness shall be moneys
in planned bridge facilities or major thoroughfares funds. A city or county imposing
fees pursuant to this section may enter into joint exercise of powers agreements with
other local agencies imposing fees pursuant to this section, for the purpose of, among
others, jointly exercising as a duly authorized original power established by this
section, in addition to those through a joint exercise of powers agreement, those
powers authorized in Chapter 5 (commencing with Section 31100) of Division 17 of
the Streets and Highways Code for the purpose of, constructing bridge facilities and
major thoroughfares in lieu of a tunnel and appurtenant facilities, and,
notwithstanding Section 31200 of the Streets and Highways Code, may acquire by
dedication, gift, purchase, or eminent domain, any franchise, rights, privileges,
easements, or other interest in property, either real or personal, necessary therefor on
segments of the state highway system, including, but not limited to, those segments
of the state highway system eligible for federal participation pursuant to Title 28 of
the United States Code. . . ."
Section 31230 of the Streets and Highways Code states:
"Any city, county, district, or political subdivision of the state upon the
request of the authority may advance or contribute money, rights-of-way, labor,
materials, and other property toward the expense of building, acquiring, and
maintaining the toll tunnel, and for preliminary surveys and the preparation of plans
and estimates of cost thereof and other preliminary expenses. . . ."
Accordingly, the county and the City of Irvine were authorized to contribute to the
Agency the northerly portion of Newport Coast Drive and the right-of-way previously dedicated to
the county by the Irvine Company for the construction of the transportation corridor. The Agency,
as part of the entire transaction, additionally acquired the fee title to the underlying property of the
right-of-way when it granted "fee credits" to the company.5 The Agency, in effect, purchased the
underlying fee.
In answer to the second question, therefore, we conclude that the Agency now has
complete jurisdiction over the northerly portion of Newport Coast Drive, having acquired it from
the county, the City of Irvine, and the Irvine Company. The county had legal authority to convey
Newport Coast Drive to the Agency.6
5
The Agency has a fee system imposed upon benefitted developers with respect to the
transportation corridor. It may issue fee credits to developers who dedicate rights-of-way for the
corridor.
6
Two additional questions were presented concerning the notice and hearing requirements for the
county to abandon Newport Coast Drive. Since no legal abandonment occurred, these questions are
moot. No issue has been raised concerning the county's compliance with the agenda, notice, and
hearing requirements of the Ralph M. Brown Act (§§ 54950-54962) applicable to the meetings of
boards of supervisors in general. Neither section 66484.3 nor the Streets and Highways Code
requires any special notices or hearings with respect to the county's activities in question.
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3. May The Irvine Company Further Develop Its Property?
The third question concerns the Irvine Company's continued development of its
property in light of Newport Coast Drive becoming a toll road. As previously indicated, the
company built this portion of Newport Coast Drive as part of its development agreement with the
county to reduce traffic congestion in the general area. Will traffic patterns change because of the
toll booth, and if so, how would such change affect the company's right to continue developing its
property?7
Initially, we note that the Irvine Company has kept its "bargain" under the
development agreement with the county; it has built the road in question. It has not failed to perform
any of the conditions of its permit. A development agreement is generally "enforceable by any party
thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision,
or building regulation adopted by the city, county, or city and county entering the agreement . . . ."
(§ 65865.4; see City of West Hollywood v. Beverly Towers, Inc. (1991) 52 Cal.3d 1184, 1193, fn.
6; Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 910; Midway
Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 773.) Under the present circumstances,
it cannot be reasonably asserted that the company must now stop its development activities if
Newport Coast Drive becomes a toll road.
Furthermore, the underlying contention (that traffic patterns will revert to what they
were before the Irvine Company completed the North Coast Drive connection) cannot be
demonstrated to be true. One traffic study with respect to the corridor (Technical Memorandum
TM-2-67A) states in part:
". . . Since few parallel routes exist along much of the SJHTC, toll and toll
free traffic estimates should be similar in magnitude and such is the case. Minor
shifts in daily traffic assignments are from the Corridor to the Freeways (in the toll
operation scenario) with arterials realizing little or no impact . . . ." (Emphasis
added.)
Additionally, the Agency has determined specifically with respect to the Newport Coast Drive toll
booth:
"The `so-called' by-pass route is enhanced, not damaged, by the Corridor,
primarily because traffic along [Pacific Coast Highway] southerly of Corona del Mar
creates the need for the by-pass; and this same `reservoir' of traffic will be reduced
from 46,000 trips/day in the year 2010 to approximately 31,000 trips per day (see
Figure 1.3.1. of the EIR.)
"The toll booths installed on the Corridor at the Pelican Hill Road
interchange will toll northbound traffic in proportion to the remaining (northerly)
reach of the Corridor, at a rate of $.15/mile. This toll will be approximately $.50 per
7
A separate aspect of this question concerns the local coastal program for the area of the Irvine
Company's development and requirements imposed under the California Coastal Act of 1976 (Pub.
Resources Code, § 30000 et seq.) which is administered by the California Coastal Commission. (See
70 Ops.Cal.Atty.Gen. 220 (1987).) The commission's staff has determined that placing a toll booth
at Newport Coast Drive will not violate any requirements imposed under the California Coastal Act
of 1976. We have been presented with no evidence or legal arguments requiring a contrary
conclusion.
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each directional trip. The southbound direction is tolled in a similar manner. It is
unlikely that these nominal tolls would impede travel demand that would otherwise
suffer a time delay along the conjectured diversion route." (Emphasis added.)
Even assuming that other traffic studies support a contrary view of the effects of the Newport Coast
Drive toll booth, we must presume that the Agency has properly performed its official duties with
respect to this factual controversy. (See Evid. Code, § 664; Erven v. Board of Supervisors (1975)
53 Cal.App.3d 1004, 1012.)
In answer to the third question, therefore, we conclude that the Irvine Company is
not precluded from further developing its property if Newport Coast Drive becomes a toll road.
4. Did The Agency Give Sufficient Legal Notice That it Intended to Charge a Toll?
It is conceded that the Agency may place toll booths on those portions of the
transportation corridor over which it has obtained legal jurisdiction. The final question to be
resolved is whether the Agency gave sufficient legal notice that it was going to impose a toll for use
of Newport Coast Drive. We conclude that it did.
First, we note that beginning in October of 1988, newspaper articles published the
Agency's proposal that a toll booth would be placed at Pelican Hill Road, now a portion of Newport
Coast Drive. More importantly, the proposed toll booth was included on maps accompanying the
notice of hearings sent by the Agency with respect to its required environmental impact report and
on maps contained in notices published in newspapers of general circulation in the county. Notices
of such hearings were sent to 4500 public agencies, interested parties and associations, and members
of the public who were on record as requesting such notices. (See Pub. Res. Code, §§ 21092,
21092.1.) The Agency responded to letters from the public addressing the question of imposing a
toll for use of North Coast Drive and its impact upon future traffic patterns. (See Cal. Code Regs.,
tit. 14, §§ 15087-15088; Marin Mun. Water Dist. v. KG Land California Corp. (1991) 235
Cal.App.3d 1652, 1666.)
Other than the requisite hearings held by the Agency on its environmental impact
report (six major noticed public meetings and hearings were held prior to certification of the final
environmental impact report and approval of the transportation corridor), we are unaware of any law
which required the Agency to hold meetings to specifically discuss the imposition of tolls or the
proposed locations of the toll booths.8 In answer to the fourth question, therefore, we conclude that
the Agency gave sufficient legal notice that it intended to charge a toll for use of Newport Coast
Drive.
*****
8
Nevertheless, the Agency and several of its constituent members conducted public hearings
regarding the proposal to operate the transportation corridor as a toll road system. Nine such
meetings were held between October 10, 1990, and March 4, 1991, in Irvine, Laguna Beach, Laguna
Niguel, Santa Ana, and San Clemente.
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