# Petition for Writ of Certiorari — Allen v. City of Duarte

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 1044

## Text

Supreme Court, U.8,

I

. 94 674 OCT 111994

N pie OF THE CLERK

In the Supreme Court

OF THE

United States

ALICE ALLEN and LAURA FEINNER
Petitioners,
VS.
CITY OF DUARTE and DUARTE REDEVELOPMENT]!
AGENCY,
political subdivisions of the
State of California

Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

STEPHEN R. BARNET I JONATHAN LEHRER-
College & Bancroft GRAIWER

387 Boalt Hall 727 Wilshire Blvd., Ste. 500
Berkeley, CA 94720 Los Angeles, CA 90010

Telephone: (510) 642-5049
Attorney of record

JOHN E. RITIMAYER
BEVERLY W. STANE
Legal Services Program for Pasadena
and San Gabriel-Pomona Valley
221 E. Walnut St. Ste 102
Pasadena, CA 91101

Attorneys for Petitioner

October 11, 1994

i
QUESTION PRESENTED

Whether the California Court of Appeal violated
Petitioners’ rights under the Equal Protection and Due
Process Clauses of the Fourteenth Amendment when
it ruled that Petitioners lacked standing to challenge
the redevelopment plan of the city in which Petitioners
resided and paid a tax, because Petitioners did not pay
a tax on real property in the city.

ii

TABLE OF CONTENTS
Page
QUESTION PRESENTED ............... i
TABLE OF CONTENTS ................ ii
TABLE OF AUTHORITIES ............. iv
OPINIONS BELOW .................... 1
FUREY 5 a he sk avd nd dawendone, ]

CONSTITUTIONAL PROVISIONS
i rN eg OTE oe =, 2
STATUTES INVOLVED ................ 2
STATEMENT OF THE CASE ............ 4

REASONS FOR GRANTING THE WRIT .. 18

CONCLUSION ...................... 27

APPENDIX A: Opinion of the Court of

Appeal of the State of California for

the Second Appellate District, Division Four,

eel Aga 06, Te: oes ce 1-A

APPENDIX B: Summary denial of Petition for
Rehearing, dated May 16,1994 .......... 1-B

_ APPENDIX C: Summary denial of Petition for
Review, filed July 13,1994 ............. 1c

111

APPENDIX D: Statement of Decision
of the Superior Court of California,
ee 1-D

APPENDIX E: Judgment of the Superior
Court of California, filed
as 5 5 6 oy st se ee 1-E

iv

TABLE OF AUTHORITIES

CASES
Blair v. Pitchess
5 Cal.3d 258 | ene or Pak ee 21
Boddie v. Connecticut,
401 U.S. 371 (1971) ea uia de aoe eee ce 23

Buena Vista Gardens Apartments Assn. v.
City of San Diego Planning Dept.
175 Cal.App.3d 289 I eat g tig 2S 7

California Transport v. Trucking Unlimited,
404 U.S. 508 ae, Se ae 20

Card v. Community Redevelopment Agency
61 Cal.App.3d 570 Lo 13, 14, 21, 22

Cipriano v. City of Houma,
395 US. 701 (1969) .................... 25

Citizens Against Forced

Annexation v. County of Santa
Clara
153 Cal.App.3d 89 es, OSs. Great 15

County of Los Angeles v.
Kling
474 U.S. 936 on, SR errr acs ae 23

James B. Beam Distilling Co. v. Georgia,
U.S. __, 111 S.Ct. 2439 a 22

Vv

Kadrmas v. Dickinson Pub. Schools
A ey A

APPENDIX A

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

CITRUS COMMUNITY ) No. B067380
COLLEGE DISTRICT, )

)
Plaintiff and Respondent, ) (Super.Ct.No. )

BC007801 )

Ve

)
)
)
REDEVELOPMENT AGENCY )
OF THE CITY OF DUARTE, _)
et al., )
)
)
)

Defendants and Appellants.

P|
3
3
:
aS

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APPEAL from a judgment of the Superior
Court of Los Angeles County, Richard C. Hubbell,
Judge. Reversed and Dismissed.

Rutan & Tucker, Dan Slater and Jeffrey M.
Oderman for Defendants and Appellants.

De Witt W. Clinton and Manuel A. Valenzuela
for Plaintiff and Respondent City of Los Angeles.

Wagner, Sisneros & Wagner and T.A. Wagner
for Plaintiff and Respondent Citrus Community
College District.

John E. Rittmayer and Jonathan
Lehrer-Graiwer for Plaintiffs and Respondents Alice
Allen and Laura Feinner.

*
7
&
2
4
=
¥

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INTRODUCTION

On May 31, 1988, the Duarte City Council ap-
proved a redevelopment plan (Plan) for the Rancho
Duarte Phase III Redevelopment Project. At that
time, the Plan did not include the tax increment
financing provisions authorized under Health and
Safety Code Section 336700.' Such provisions are
optional and may be added later by amending an
existing plan. (§ 33457.) They allow tax monies
resulting from any increase in the assessed valuation of
property within the project area to be placed in a
special fund for repayment of the indebtedness
incurred in financing that project, while the taxing
agency continues to receive "the same amount of
money it would have realized under the assessed
valuation existing at the time the project was
approved... ." (Redevelopment Agency v. County of
San Bernardino (1978) 21 Cal.3d 255, 259.)

In March 1989, after having expended more
than $4 million to acquire about 30 percent of the real
property covered by the Plan, Duarte determined that
the cost of the project would substantially exceed
previous estimates. Duarte notified the public and
Los Angeles County, its flood control district, public
library, and consolidated fire protection district
(collectively County), and Citrus Community College
District (Citrus) of its intent to amend the Plan to
include section 33670 tax increment financing
provisions (Amendment). (§ 33344.5.) Duarte stated
that "[o]ther aspects of the Redevelopment Plan and
Project Area are not proposed to be changed,

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

Fe ee a a

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modified or extended by the Amendment, except as
necessary to provide for the collection of tax
increment revenues."

On May 29, 1990, County submitted its written
objections to the proposed Amendment, including that
[t]he tax increment financing provisions of the
Amendment will cause a Significant financial burden
and detriment on the County by depriving the County
of its share of the property taxes which are needed for
the continued Provision of service to the area" and
that Duarte had failed to make a current finding that
the geographical area included in the Plan was
"blighted."

On June 26, 1990, Duarte approved its
Ordinance No. 666, thereby adopting the Amendment.

In a consolidated action, County, Citrus, and
two private citizens, Alice Allen and Laura Feinner, all
respondents herein, challenged the validity of the
amendment on several grounds and requested
declaratory and injunctive relief and the issuance of a
writ of mandamus to compel Duarte to reconform its
underlying housing element to comply with state law.

Trial was held and the court took the matter
under submission. The court issued a 14-page
Statement of decision and granted judgment in favor of
respondents. The judgment voided the Amendment
and permanently enjoined Duarte from implementing
it. Allen and Feinner moved to set aside and vacate
the judgment and substitute a new judgment which
would include the issuance of a writ of mandamus to
compel Duarte to bring its housing element into
compliance with state law within 120 days. The court

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denied the motion. Duarte’s appeal and Allen and
Feinner’s cross-appeal, based on the denial of their
motion, followed.

Two recent events impact this case. First,
Duarte has modified its housing element to conform
to state law, as certified by the California Department
of Housing and Community Development. Thus, we
dismiss Allen and Feinner’s cross-appeal, which sought
a new judgment requiring modification of the housing
element.

Second, on February 3, 1994, Duarte and
County filed a joint application and stipulation for
partial dismissal of the appeal with prejudice, reversal
of judgment, and remand to the superior court for
vacation of judgment and entry of a new and different
judgment in favor of Duarte. This step was based on
a settlement agreement between Duarte and the
County respondents and a separate agreement
between Duarte and Citrus’ Allen and Feinner did

* With respect to County taxing entities flood control
district, library, and fire district, the settlement
agreement provides that all of their proportionate
share of the expected increased tax revenues from the
amended redevelopment plan will be passed through
to them, though the transfer of some monies may be
deferred for use by Duarte under certain specified
circumstances. The agreement passes through a
portion of County’s share, deferring payment of the
balance under specified circumstances. Duarte is
required to repay all retained monies and accrued
interest. The agreement also provides that a
percentage of any monies diverted to Duarte from
County or its taxing entities shall be set aside for low-

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not join in the application and stipulation. Duarte
acknowledges that there can be only one judgment
entered because the actions were consolidated
(Committee for Responsible Planning v. City of Indian
Wells (1990) 225 Cal.App.3d 191, 195), the practical
effect of which is that it cannot have a final judgment
validating the Amendment with respect to County and
another invalidating the Amendment with respect to
Allen and Feinner. This court went forward with the
scheduled oral argument on February 8, 1994, in
conjunction with our review of the record, to ascertain
what issues remained for consideration. We conclude
that Allen and Feinner did not have standing to bring
the action. We reverse the judgment as to Allen and
Feinner and order the trial court to vacate the
judgment with respect to Allen and Feinner. Pursuant
to the agreements reached between County, Citrus and
Duarte, we dismiss the appeal and remand the matter
to the trial court for further proceedings consistent
with the agreements of the parties. (Neary v. Regents
of University of California (1992) 3 Cal.4th 273.)

DISCUSSION

In their first 12 causes of action, Allen and
Feinner asserted that Duarte had either failed to make

findings as required by §33367 or that the findings

and moderate-income housing in compliance with the
CRL. The separate agreement with Citrus provides
for a transfer of to percent of its share of tax
increment revenues, less that required statutory set
aside for low-and moderate-income housing, resulting
in a net transfer of 48 percent.

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made were not supported by substantial evidence.’

> Former section 33367 provides in pertinent part:
"The ordinance shall contain all of the following: [1]
....+{[] (d) The findings and determinations of the
legislative body that: [{1] (1) The project area is a
blighted area, the redevelopment of which is necessary
to effectuate the public purposes declared in this part.
[11] (2) The redevelopment plan would redevelop the
area in conformity with this part and in the interests of
the public peace, health, safety, and welfare. [f]] ....
[11] (4) The redevelopment plan conforms to the
general plan of the community. [{]] (5) The carrying
out of the redevelopment plan would promote the
public peace, health, safety, and welfare of the
community and would effectuate the purposes and
policy of this part. [f]] ....[] (7) The agency has
a feasible method or plan for the relocation of families
and persons displaced from the project area, if the
redevelopment plan may result in the temporary or
permanent displacement of any occupants of housing
facilities in the project area. [|] (8) There are, or
are being provided, in the project area or in other
areas not generally less desirable in regard to public
utilities and public and commercial facilities and at
rents or prices within the financial means of the
families and persons displaced from the project area,
decent, safe, and sanitary dwellings equal in number to
the number of and available to the displaced families
and persons and reasonably accessible to their places
of employment. [11] (9) All noncontiguous areas of a
project area are either blighted or necessary for
effective redevelopment and are not included for the
purpose of obtaining the allocation of taxes from the
area pursuant to Section 33670 [provision for division

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The 13th cause of action alleged that Duarte had

of taxes generated by taxable property in
redevelopment Project area] without other substantial
justification for their inclusion. [1] (10) Inclusion of
any lands, buildings, or improvements which are not
detrimental to the public health, safety, or welfare is
necessary for the effective redevelopment of the area
of which they are a part; that any area included is
necessary for effective redevelopment and is not
included for the purpose of obtaining the allocation of
tax increment revenues from the area pursuant to
Section 33670 without other substantial justification
for its inclusion. [M1] (11) The elimination of blight
and the redevelopment of the project area could not
be reasonably expected to be accomplished by private
enterprise acting alone without the aid and assistance
of the agency. [Ml] (12) The effect of tax increment
financing will not cause a Significant financial burden
or detriment on any taxing agency deriving revenues
from a project area. This finding shall only be
required when the project is financed in part or in
whole from revenues derived from the allocation of
taxes pursuant to Section 33670. [1] (€) A statement
that the legislative body is satisfied that permanent
housing facilities will be available within three years
from the time occupants of the project area are
displaced and that pending the development of the
facilities, there will be available to the displaced
occupants adequate temporary housing facilities at
rents comparable to those in the community at the
time of their displacement." (Stats. 1984, ch. 147, §
12, pp. 506-508.)

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failed to produce an adequate report to accompany
the Plan (§ 33352). They also sought declaratory and
injunctive relief, denominated as their 14th and 15th
causes of action, respectively.‘ Allen and Feinner
challenged the Project by purporting to bring both a
validation action, citing section 33501 and Code of
Civil Procedure section 863, and a taxpayer’s action to
enjoin illegal municipal expenditures, citing Code of
Civil Procedure section 526a.°

* Allen and Feinner’s original complaint, filed August
27, 1990, and their first amended complaint, filed June
18, 1991, list identical causes, of action, set forth in
virtually identical language.

* At the time Allen and Feinner commenced their
action, section 33501 provided: "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 a
redevelopment plan], including . . . the legality and
validity of all proceedings theretofore taken for or in
any way connected with . . . the adoption of the
redevelopment or renewal plan..." (Stats. 1965, ch.
1665, § 40, p. 3788.) This section also applies to
redevelopment plans as amended. (Card v.

Community Redevelopment Agency (1976) 61
Cal.App.3d 570, 574, fn. 5.)

Code of Civil Procedure section 863 provides:
"If no proceedings have been brought by the public
agency pursuant to this chapter, any interested person
may bring an action within the time and in the court
specified . . . to determine the validity of such matter .
.." (Emphasis added.)

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Duarte demurred and argued that Allen and
Feinner did not have standing to allege a significant
financial burden on the taxing agencies, plaintiffs’ fifth
cause of action.° A minute order reflects that the trial

Code of Civil Procedure section 526a provides:
"An action to obtain a judgment, restraining and
preventing any illegal expenditure of, waste of, or
injury to, the estate, funds, or other property of a
county, town, city or city and county of the state, may
be maintained against any officer thereof, or any
agent, or other person, acting in its behalf, either by a
citizen resident therein, or by a corporation, who is
assessed for and is liable to pay, or, within one year
before the commencement of the action, has paid, a
tax therein. ..."

° The operative paragraphs of the fifth cause of action
read: "43. Section 3(g) of Ordinance No. 666
purports to contain a finding that the increased tax
increment financing any taxing agency deriving
revenues from the Project Area. This finding is not
supported by substantial evidence. [1] 44. The City
has abused its discretion in failing to consider the
financial impacts of the tax allocation and bonding
limits adopted by the Redevelopment Plan on the
ability of Los Angeles County and other agencies to
provide public and social services, particularly to
persons and families of low and moderate income.
Among other things, the City has failed to fully
consider the impact of the Jarvis-Gann Initiative and
the fact that taxing agencies are deprived of substantial
tax revenues as a result of the Redevelopment Plan
and that they are restricted in their ability to raise
additional tax revenues, as a result of said initiative, in

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court rejected the argument, citing Code of Civil
Procedure section 863 and Regus v. City of Baldwin
Park (1977) 70 Cal.App.3d 968 (discussed below). In
its answer, Duarte again raised this issue as an
affirmative defense, repeating its assertion with respect
to the fifth cause of action, and, in addition, asserting
that Allen and Feinner did not have standing to
request declaratory relief or an injunction to prevent
the contemplated expenditure of public funds. Duarte
again argued the issue in its trial brief and cites the
argument in its brief on appeal.

Allen and Feinner stated in their first amended
complaint that they are lower income residents of the
City of Duarte who pay housing rent in excess of fifty
percent of their gross monthly incomes and are
"beneficially interested in the enforcement of
[Duarte’s] public duties. . . .". They asserted that the
alleged diversion of taxes would "decrease the funds
available to Los Angeles County for social services,
including health and welfare benefits to lower income
persons and families." They further alleged that they
had paid "a tax" to the City of Duarte within one year
of the commencement of this action.

The record further discloses that Allen and
Feinner agreed in their opposition to a motion for
summary adjudication of issues by Duarte that it was
undisputed they are lower income residents of the City
of Duarte. Also, Feinner declared that county
provided her Aid to Families with Dependent Children

order to compensate for the lost revenues. [fj 45.
Consequently, the Redevelopment Plan and Ordinance
No. 851 approving and adopting it, are null and void."

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and that she qualified to receive medical care at
county hospitals and clinics should the need arise.

At oral argument, in response to questions
from the bench, Duarte stated its belief that the
standing issue went only to the fifth cause of action, in
which Allen and Feinner alleged that the Amendment
would result in a significant financial burden on the
taxing agencies. Our review of the statutes and case
law demonstrates that the standing issue envelops the
entire action, thus leading to the reversal of the
judgment with respect to these respondents and
dismissal of the appeal.’

Standing to bring validation action (Code Civ.
Proc. §863):

Under Code of Civil Procedure section 367,
'[e]very action must be prosecuted in the name of the
real party in interest... ." (Torres v. City of Yorba
Linda (1993) 13 Cal.App.4th 1035, 1040.) "Generally,
a plaintiff must show he or she or those he or she
properly represents have either suffered or are

” Shortly before oral argument, Allen and Feinner
requested judicial notice of a photocopy of what
purports to be a letter dated November 1, 1988, from
Elizabeth G. Hill, California Legislative Analyst, to
State Senator Robert Presley, Chairman, Senate
Appropriations Committee, regarding the replacement
of revenues lost to public schools as a result of the
CRL. The request is denied on the ground that the
proffered evidence does not constitute an official act
of the California Legislature. (Evid. Code, § 452, subd.

(c).)

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threatened with an injury of sufficient magnitude that
it is reasonably assured the lawsuit will provide an
adequate presentation of all relevant facts and issues.
[Citation.]" (Id. at p. 1041.) As noted (fn. 5, ante), a
public entity itself may bring an action to determine
the validity of its redevelopment project. (Code Civ.
Proc., § 863; § 33501.) Should it elect not to do so,
"any interested person may bring an action . . . to
determine the validity of such matter." (Emphasis
added; Code Civ. Proc., § 863; id. at p. 1042.) Thus,
the issue is whether Allen and Feinner qualify as
"interested" persons. As Torres v. City of Yorba
Linda, supra, notes, few cases have discussed the term
"interested person" as used in Code of Civil Procedure
section 863.

In Sweetwater Valley Civic Assn. v. City of
National City (1976) 18 Cal.3d 270, defendant made a
finding under the CRL that a 130 acre area was
"blighted." The area comprised a 103-acre golf course,
in active operation and open to the public, and 27
unproductive acres; 115 acres were owned by a single
party. The California Supreme Court determined that
the blight finding was subject to judicial review under
section 33501. (Id. at p. 277.) No issue regarding
standing was considered. Plaintiff association was
described as "a group of 600 taxpayers, residents, and
property owners of Sweetwater Valley." (Id. at p.
273.) There is no indication whether Sweetwater
Valley was a governmental entity, whether any part of
the redevelopment area was located within Sweetwater
Valley, or whether any member of the plaintiff
association owned property in or otherwise had a
direct relationship to the redevelopment project area.
The only reference to Code of Civil Procedure section
863 came when the California Supreme Court noted

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that "[a]lthough [Code of Civil Procedure section 860]
provides for the agency to bring the action, section 863
of that code permits any ’interested person’ to bring
the action within 60 days if the agency does not." (Id.
at p. 277.)

In Card v. Community Redevelopment Agen 4
supra, 61 Cal.App.3d 570, defendant appealed the
invalidation of a city ordinance amending a CRL
redevelopment plan for a project area located within
the City of South Pasadena. The only reference to
Code of Civil Procedure section 863 is stated in a
footnote: "The [defendant] also challenges the
standing of plaintiffs to sue, but plaintiffs clearly are
interested persons within the meaning of Code of Civil
Procedure section 863 in view of the fact that each was
subsequently stipulated to be a citizen, resident and
taxpayer of the city and ’a person interested in the
matter of the amendments to the redevelopment plans
for the [project]."" (Id. at pp. 574-575, fn. 6, emphasis
added.)

In Regus v. City of Baldwin Park, supra, 70
Cal.App.3d 968, plaintiffs challenged defendant’s
ordinance purporting to adopt a redevelopment plan
pursuant to the CRL. The members of a plaintiff
unincorporated association and individual plaintiffs
were residents and "taxpayers" of defendant city. They
resided and owned real property located solely outside
the boundaries of the redevelopment project area.
The county and other taxing agencies, all of which
levied taxes upon property within the redevelopment
area, had assessed taxes on these individuals’ real
property within one year of the filing of the action.
(Id. at p. 971.) Regus determined that the individual
plaintiffs had standing to bring a validation action, as

| : .

a

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well as a taxpayer’s action, citing Sweetwater Valley

. Civic Assn. v. City of National City, supra, 18 Cal.3d
‘ 270 and Card v. Community Redevelopment Agency,
: supra, 61 Cal.App.3d 570. It noted that Sweetwater
had “entertained" a civic association’s attack on a
redevelopment project where, although its members
were taxpayers, residents, and property owners of
Sweetwater Valley, there was no allegation that
association members owned property within the
project area, and where such ownership was unlikely
because of the existence of a large landowner. The
Regus court acknowledged that Sweetwater had not
discussed standing. (Regus v. City of Baldwin Park,
supra, 70 Cal.App.3d at pp. 971-972.) With respect to
Card, Regus noted that the stipulation regarding
standing did not include that the plaintiffs owned real
property within the project area.

Regus concluded as follows: "We think it
unlikely the Legislature intended to limit review of
such projects to actions initiated by the agency itself or
by residents of the project area, given the
presumptively disadvantaged and blighted condition of
a redevelopment project area, which may be largely
vacant or in a state of disrepair and disuse. As
taxpayers of the City of Baldwin Park and of the
County of Los Angeles, plaintiffs have a financial
interest in the outcome of this proceeding, in that the
tax increment financing of the Project will divert tax
revenues from the taxing agencies to which plaintiffs
pay taxes to the treasury of the Redevelopment
Agency. Such a financial interest is likely to motivate
plaintiffs to prosecute the action vigorously and
provides sufficient basis to give them standing.
[Citation.]" (Id. at p. 972.)

DAG teak Siren AB ies cae eA ae

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In Citizens Against Forced Annexation v.
County of Santa Clara (1984) 153 Cal.App.3d 89,
plaintiff unincorporated organization (CAFA), as well
as individual plaintiffs who were members of CAFA,
challenged the validity of annexations of county
territory to the City of San Jose. These annexations
had been proposed and accomplished without elections
under former Government Code section 35000 et seq.
(Municipal Organization Act), which incorporated
Code of Civil Procedure section 860 et seq.
Defendants demurred on the ground that plaintiffs
were not “interested persons" under section 863 and
therefore lacked standing to bring the action.

The appellate court held that "plaintiffs who
allege an interested relationship to particular annexed
territories through land ownership, residency, or voter
registration have standing under section 863 of the
Code of Civil Procedure to challenge the annexations
of those particular territories." (Id. at p. 95.) It
concluded that CAFA also had Standing as an
"interested person" regarding the dismissed territories
because of the nature of the organization: (1) it was
an appropriate organization to function as a monitor
for its members, i.e., to watch for and test the validity
of annexation proceedings, especially given the brief
60-day statute of limitation (Code Civ. Proc., § 860);
and (2) a direct relationship between some of CAFA’s
members and the dismissed territories had been
alleged. (Id. at pp. 95-98.) The court also noted that
a validation action is in the nature of a proceeding in
rem, citing Code of Civil Procedure section 860, but
that the right asserted by CAFA and its members with
respect to annexations "is only the right to see that the
government wielded its annexations power properly."

_ (Id. at p. 98.)

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In Torres v. City of Yorba Linda, supra, 13
Cal.App.4th 1035, two persons challenged defendant
city’s proposed amended redevelopment project,
asserting in part that the diversion of taxes which
would otherwise be paid to the county and other
taxing entities would decrease the funds available to
the county for social services, including health and
welfare benefits for lower income persons and families
in general and those benefits "utilized or likely to be
utilized" by the plaintiffs. (Id. at p. 1039.) In their
first amended complaint, plaintiffs asserted they were
"beneficially interested" in the enforcement of the
defendants’ public duties. They alleged they were
residents of another city but were interested in
residing in defendant city if they could find decent,
safe, sanitary and affordable housing. Each plaintiff
had paid a sales tax to defendant city within one year
before filing the action. One plaintiff alleged she and
her family were classified as "lower income" and either
used or were eligible to receive health and other social
services funded by the county.

Plaintiffs indicated that, with permission of the
court, they would further amend the complaint to
allege that one of the plaintiffs was a property owner
and property taxpayer in the county and that the
alleged failures of the defendant to have an adequate
housing element and land use regulations permitting
development of affordable housing impacted the price
of housing elsewhere in the county, preventing
plaintiffs from having the opportunity to purchase
affordable housing. During the pendency of the
demurrer, plaintiffs moved for issuance of a wmit of
mandate invalidating the redevelopment plan and
directing the defendants to correct the housing
element of its plan. Among the exhibits submitted

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with respect to this issue was an agreement between
the defendants and the county and its fire, flood, and
park districts which provided that 65 percent of the
county’s share and each district’s entire share of the
expected increased tax revenues from the amended
redevelopment plan would be passed through by the
defendants.

The trial court Sustained the demurrer without
leave to amend and determined that the motion for
writ of mandate was moot.

The appellate court affirmed. It reviewed
Sweetwater Valley Civic Assn. v. City of National City,
supra, 18 Cal.3d 270, Card v. Communi
Redevelopment Agency, upra, 61 Cal.App.3d 570,
Regus v. City of Baldwin Park, supra, 70 Cal.App.3d
968, and Citizens Against Forced Annexation v.
County of Santa Clara, supra, 153 Cal.App.3d 89. It
concluded that plaintiffs did not have Standing to
challenge the defendants’ redevelopment plan under
section 863. It rejected plaintiffs’ reliance on
Sweetwater on the ground that the case did not
consider the issue of Standing. It noted that both
plaintiffs lived in another city, did not pay property
taxes in defendant city, and were not "otherwise
beneficially interested in the area covered by the
amended redevelopment plan." (Torres v. City of
Yorba Linda, supra, 13 Cal.App.4th at p. 1043.) It
found the allegations that one plaintiff owned real
Property and paid property taxes to the county, and
that the other claimed she and her family used or were
eligible for several social services partially funded by
the county with Property taxes ,endered plaintiffs,
‘indistinguishable from most other county residents."
(Id. at p. 1044; fn. omitted.) It dismissed plaintiffs’

19-A

reliance on Regus, noting that the case "does not state
a party has standing where he or she is merely a
county taxpayer." (Ibid.) Finally, the court found that
plaintiffs’ assertion that the redevelopment project
would divert revenue from local taxing entities was
questionable in that the complaint alleged the project
was to be financed by issuing bonds secured by tax
increment revenue. The court characterized the
financing scheme as one which permitted the project
to pay "for itself by taking advantage of increased
property tax revenues generated by the project area’s
renovation. [Citations.]" (Ibid.)

In the instant case, Allen and Feinner allege
little more than did the plaintiffs in Torres. Allen and
Feinner are lower income persons who live in rental
housing. Feinner receives Aid to Families with
Dependent Children and qualifies to receive county
supported health services. Both paid "a tax within the
City of Duarte; they do not allege it was a tax assessed
on real property located therein. They claim they are
"beneficially interested" and assert that the diversion of
the tax increment revenue would decrease funding for
socia! services for lower income families, both of which
claims are mere conclusions. Unlike the Torres
plaintiffs, Allen and Feinner are residents of the
defendant city. We conclude that mere residency and
the payment of an unspecified tax within the
defendant city is insufficient to confer standing.

Sweetwater Valley Civic Assn. v. City of
National City, supra, 18 Cal.3d 270 did not consider
the issue of standing and thus cannot be invoked as
authority on this point. (McDowell & Craig v. City of
Santa Fe Springs (1960) 54 Cal.2d 33, 38; Torres v.

City of Yorba Linda, supra, 13 Cal.App.4th at p. 1044,

20-A

fn. 5.) In Card v. Community Redevelo ment Agency,
supra, 61 Cal.App.3d 570, it was stipulated that each
plaintiff was a "citizen, resident and taxpayer of the
city and a person interested in the matter of the
amendments to the redevelopment plans for the
[project]. (Id. at pp. 574-575, fn. 6.) Given that the
plaintiffs were stipulated to be interested persons,
their description as citizens and residents of the
defendant city and "taxpayers" on some undisclosed
basis was superfluous and is of no assistance.
(McDowell & Craig v. City of Santa Fe Springs, supra,
54 Cal.2d at p. 38.)

Regus v. City of Baldwin Park, supra, 70
Cal.App.3d 968, does not fully analyze the issue.
Regus purports to rely, at least in part, on Sweetwater
and Card. In addition, some facts about the plaintiffs
which would aid in the analysis are not set forth: it is
not disclosed what kind of tax each plaintiff paid as a
resident within the city or whether each plaintiff
owned real property within the city. The court rejects
the idea of limiting Standing to residents of the
redevelopment project area (which appears to be a
very narrow interpretation of the legislative intent),
"given the presumptively disadvantaged and blighted
condition" of such area, "which may be largely vacant
Or in a state of disrepair and disuse." (Regus v. City
of Baldwin Park, supra, 70 Cal.App.3d at p. 972.) Of
course, such an area could well have a high population
of lower income residents vitally interested in housing
and related matters, a possibility the Legislature
appears to have considered in expressing its concern
regarding alternative housing for residents when an
area is razed. (§ 33367, subd. (d) (7), (8).)) The
Regus court concludes that the plaintiffs have standing
because they were deemed to have sufficient financial

in SE nae CBN Soe eK Ag he ee

GAA eSB LA et RSA bee NSUAD Pee lee FAN PS hates «tebe

21-A

interest to motivate them to prosecute their action
vigorously since the project would divert tax revenues
from entities to which plaintiffs’ tax payments were
distributed. On balance, we conclude that Regus does
not present a clear rule of law.

Citizens Against Forced Annexation v. County
of Santa Clara, supra, 153 Cal.App.3d 89, interpreting
the validation procedure in conjunction with the
annexation of land pursuant to the Municipal
Organization Act (former Gov. Code, § 35000 et seq.),
held that persons who alleged an "interested
relationship" through land ownership, residency, or
voter registration within the particular annexed
territory had standing to challenge annexation of that
territory, as did the unincorporated association that
functioned as a monitor of annexation proceedings for
its members. Allen and Feinner did not allege
residency within the project area.

Finally, Torres v. City of Yorba Linda, supra,
13 Cal.App.4th 1035, concluded that allegations of
payment of taxes on real property located within the
county, a sales tax paid within defendant city, and a
"beneficial interest" in the price of housing in the
county and eligibility for county social services partially
funded by county taxes were insufficient to confer
standing.

In addition, Torres also questioned the

assertion that funds would be diverted from the taxing
entities because the project was to be funded by bonds
secured by tax increment revenue. In the instant case,
the recent settlement agreements between Duarte and
County reflect that ultimately the County taxing
entities will receive all tax increment revenues due

22-A

them, plus interest should monies be temporarily
diverted. The agreement between Duarte and Citrus
indicates that approximately half of the expected
revenues will be diverted. Allen and Feinner failed to
allege a specific beneficial interest in Citrus and how
the diversion of tax increment funds would adversely
impact them. Since the issue of Standing may be
raised at any time (Life v. County of Los An eles
(1990) 218 Cal.App.3d 1287, 1292, fp. 3), this recent
development further undercuts Allen and Feinner’s
claim.

As stated in Harman v. City and County of San
Francisco (1972) 7 Cal.3d 150: "The fundamental
aspect of standing is that it focuses on the party
seeking to get his complaint before a... . court, and
not [o]n the issues he wishes to have adjudicated.’
[Citation.] A party enjoys standing to bring his
complaint into court if his stake in the resojution of
that complaint assumes the Proportions necessary to
ensure that he will vigorously present his case.
[Citation.] .. . we must determine standing by a
measure of the ‘intensity of the plaintiff's claim to
justice.’ [Citation.]}" (Id. at p. 159.) Here, Allen and
Feinner failed to allege any adverse impact of the
amended redevelopment plan on their residency within
the City of Duarte, nor did they offer any evidence of
such impact at trial. In view of the fact that Duarte’s
housing element has since been declared to be in full
compliance with state law, and the existence of the
recent settlement agreements and application to
dismiss the appeal with respect to County and Citrus,
we conclude that Allen and Feinner do not have
standing to bring a validation action.

isi Ate Sa? Kmy See ee ware

23-A

Standing to bring taxpayer’s action (Code Civ.

Proc., 526a):

Allen and Feinner also purport to bring their
action under the authority of Code of Civil Procedure
section 526a (fn. 5, ante). As discussed in detail in
Torres v. City of Yorba Linda, supra, 13 Cal.App.4th
1035, a sales tax is a levy on the retailer, not the
consumer, and therefore does not confer standing to
bring an action under this section. Allen and Feinner
alleged that they are lower income persons living
within the City of Duarte, one of whom owns tax
assessed real property somewhere in the county. They
did not specify that they had paid a property tax
within the City of Duarte and no evidence was offered
at trial that either had paid such tax. We conclude
they lacked standing to bring a taxpayer’s action.

DISPOSITION

We reverse the judgment as to Ailen and
Feinner and order the trial court to vacate the
judgment with respect to Allen and Feinner. Pursuant
to the agreements reached between County, Citrus and
Duarte, we dismiss the appeal and remand the matter
to the trial court for further proceedings consistent
with the agreements of the parties. (Neary v. Regents
of University of California, supra, 3 Cal.4th 273.)

The respective costs on appeal are to be borne
by each party.

24-A /

NOT TO BE PUBLISHED

HASTINGS, J.
We concur:

WOODS (Arleigh), P.J.

KLEIN, (Brett) J.*

“Assigned by the Chairperson of the Judicial Council. ;

APPENDIX B

OFFICE OF THE CLERK
COURT OF APPEAL
STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
JOSEPH A. LANE, CLERK

5/16/94

DIVISION: 4 DATE:

Legal Services Program
John E. Rittmayer

211 E. Walnut Street
Suite 221

Pasadena, CA. 91101 6423

RE: Allen, Alice
VS.
Duarte, City of Citrus Community College District
2 Civil B067380

Los Angeles NO. BC007801

THE COURT:

Petition for rehearing denied.

APPENDIX C

Second Appellate District, Division Four, No. B067380
S040075

IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA

IN BANK

CITRUS COMMUNITY COLLEGE DISTRICT
Et Al., Respondents

REDEVELOPMENT AGENCY OF THE CITY OF
DUARTE Et Al., Appellants

Petition for review DENIED.
Request for judicial notice DENIED.

LUCAS
Chief Justice

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Be eer,
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Saas

APPENDIX D

NO. BC 007 801
(Consolidated with BC 008 824
and BC 009 159)

In the Superior Court of the State of California
for the County of Los Angeles

CITRUS COMMUNITY COLLEGE DISTRICT,
Plaintiff,

VERSUS

ALL PERSONS INTERESTED IN THE MATTER
OF AMENDMENT NO. 1 TO THE
REDEVELOPMENT PLAN FOR THE RANCHO
DUARTE PHASE III REDEVELOPMENT
PROJECT IN THE CITY OF
DUARTE, etc., et al.
Defendants.

(Statement of Decision)
Before
HUBBELL, Superior Court Judge.

The above-captioned consolidated cases
challenging the validity of Amendment No. 1 to the
Rancho Duarte Phase III Redevelopment Project and
Ordinance No. 666 approving the Amendment, came on
regularly for trial on January 27, 1992, in Department 21
of the Superior Court of the State of California for the
County of Los Angeles, the Honorable Richard C.

2-D

Hubbell, presiding. The actions were filed pursuant to
the Community Redevelopment Law ("CRL") (Cal.
Health & Safety Code §§ 33000 et seq.)' and Code of
Civil Procedure Section 860 et seq.

John J. Wagner of Wagner, Sisneros & Wagner
appeared on behalf of Citrus Community College
District ("Citrus College"), Plaintiff in LASC Case No.
BC 007 801. De Witt W. Clinton, County Counsel of the
County of Los Angeles, by and through Manuel A.
Valenzuela, Deputy County Counsel appeared on behalf
of the County of Los Angeles, Los Angeles County
Flood Control District, Los Angeles County Public
Library and Consolidated Fire Protection District of Los
Angeles County (collectively, the "County"), Plaintiffs in
LASC Case No. BC 008 824. Jonathan Lehrer-Graiwer
and John E. Rittmayer appeared on behalf of Alice and
Laura Feinner, Plaintiffs in LASC Case No. BC 009 159.
Jeffrey M. Oderman and Dan Slater of Rutan & Tucker
appeared on behalf of Defendants.

The court having taken the above matter under
submission on January 27, 1992 after a trial, and having
read and considered all of the exhibits and considered
the summation of counsel and the evidence produced by
both sides on trial of the issues, now renders this
statement of decision in favor of Plaintiffs.

Il. STANDARD OF REVIEW

' Unless otherwise expressly indicated, all
statutory references shall be to the California Health &

3-D

The standard of review applied by the Court in
the review of the findings made by Defendants City of
Duarte ("City") and Redevelopment Agency of the City
of Duarte ("Agency") in adopting Amendment No. 1 to
the Redevelopment Plan for the Rancho Duarte Phase
III Redevelopment Project ("Amendment") was the
substantial evidence test. (In Re Redevelopment Plan
for Bunker Hill (1964) 61 Cal.2d 21; Fosselman’s, Inc. v.
City of Alhambra (1986) 178 Cal.App.3d 806; County of
Santa Cruz v. City of Watsonville (1985) 177 Cal.App.3d
831.)

II. EXHAUSTION ISSUE

A. The Court finds that the Los Angels County
Flood Control District ("Flood") and Los Angeles
County Public Library ("Library"), Plaintiffs in LASC
Case No. BC 008 824, exhausted their administrative
remedies afforded them under the CRL.
(Redevelopment Agency v. Superior Court (Birbeck)
(1991) 228 Cal.Ap.3d 1487.) This finding is based on
the following facts 1) these two entities participated
throughout the redevelopment process; 2) they provided
information to Defendants (which information was used
by Defendants in analyzing various reports); 3) the
Board of Supervisors of the County of Los Angeles
(their governing body) authorized and directed the
County Counsel (their legal representative; See, Cal.
Gov. Code § 27640 et seq., Los Angeles County Charter
Art. IV, § 14) to oppose the Amendment at the public
hearing held by Defendants; and, 4) the County Counsel
filed written opposition on behalf of all the County
taxing entities, including Library and Flood.

4-D

B. The Court also finds that Alice Allen and
Laura Feinner, Plaintiffs in LASC Case No. BC 009 159,
exhausted required administrative remedies afforded
them under the CRL. Plaintiffs verified Complaint
Alleges that they delivered to the City Clerk on or about
May 29, 1990, objections to the Amendment. Complaint
in BC 009 159, paragraph 12. The allegation is verified
by the administrative record which contains a letter of
objection dated May 28, 1990 and received by the City
of May 29, 1990 written by Plaintiffs counsel. [A.R. 365-
367] That letter states on its face that it was submitted
on behalf of the attorney’s two clients, who are residents
of the City. Defendants introduced no evidence the
support their contention that the letter of objections
submitted by Plaintiffs’ attorney was not submitted on
their behalf.

Ill. FINDINGS OF BLIGHT

A. Defendant City was required to make blight
findings under Sections 33367(d)(1) and 33367(d)(11)
and include said findings in Ordinance No. 666 which
approved the Amendment. (Ca. Const. Art. XVI, § 16;
§§ 33354.5, 33352, 33367(d), 33457.1.) The existence of
blight is a necessary pre-requisite to a redevelopment
agency’s right to obtain taxes under Section 33670.
(Calif. Const. Art. XVI, § 16; Regus v City of Baldwin
Park (1977) 70 Cal.App.3d 968, 982.) Consequently,
Plaintiffs’ causes of action challenging the validity of
Amendment No. 1 to the Rancho Duarte Phase III
Redevelopment Project ("Amendment No. 1") and
ordinance No. 666 on the grounds that the City failed to
make findings of blight and other related findings, were
timely since they were filed within 60 days of the
adoption of Ordinance No. 666. Section 33500.

5-D

B. Defendant City failed to make blight findings.
Defendants’ admitted that no blight findings were made.

IV. FINDINGS ON THE INCLUSION OF NON-
BLIGHTED AND NON-CONTIGUOUS AREAS

A. Defendant City was required to make findings
under Sections 33457.1, 33367(d)(9) and 33367(d)(10),
and include those findings in Ordinance No. 666.

B. Defendant City failed to make those findings.

V. FINDINGS ON PROMOTING THE GENERAL
WELFARE AND ON EFFECTUATING PURPOSES OF
THE CRL

A. Defendant City was required to make findings
under Sections 33457.1, 33367(d)(2) and 33367(d)(5),
and include those findings in Ordinance No. 666.

B. The record before the Court does not contain
substantial evidence to support those findings.
Additionally, the findings contained in this Statement of
Decision support the conclusion that Ordinance No. 666
would not promote the general welfare and that it would
not effectuate the purposes of the CRL.

C. Defendant Agency has failed to file with the
State Controller for fiscal years 1987-1988, 1988-1989
and 1989-1990, reports which contain information
required in Sections 33080.1(c) and 33080.4. This
finding is supported by the Declaration of William J.
Murphy and by the Reports of the Department of
Housing and Community Development entitled,
Redevelopment Agencies in California: The Effect of
Their Activities on Housing, Fiscal Years 1989-1990 and

y
. =
A

6-D

1987-1988. Defendants did not introduce evidence that
the Agency had in fact submitted the required
information to the State Controller.

Additionally, the Agency has failed to set-aside at
least 20% of the taxes allocated to it under Section
33670 into a Low and Moderate Income Housing Fund
as required by Sections 333334.2 and 33334.6 of the
CRL for at least fiscal years 1989-90 and 1990-91. The
Agency’s Annual Report for Fiscal year 1989-90 claims
that the Agency made findings under Sections
33334.2(a)(1), 33334.2(a)(3) and 33334.6(d) and (e) for
each of the City’s seven redevelopment project areas.
However, findings under Section 33334.6(d) and (e) were
not available and therefore not vaid as to any of the
City’s redevelopment plans, except the David Addition
Plan, because all of the other plans were adopted after
1976. Furthermore, the Agency adopted Resolution No.
RA-264 on November 14, 1989 and Resolution No. RA-
274 on November 13, 1990. Those resolutions made
findings under Sections 33334.2(a)(1) and (a)(3) for the
purpose of not setting aside any taxes allocated to the
Agency into a Low and Moderate Income Housing
Fund. All of those findings were invalid because the
City’s Housing Element, adopted September 26, 1989,
which was in effect at those times, was invalid, as
specified below, rendering the findings invalid.
Additionally, the findings under Section 33334.2(a)(1)
were inconsistent with that Housing Element which
identified significant housing needs in the City for very
low, low and moderate income households. Those
violations of the CRL substantiate that the Agency has
not been effectuating the purposes and policy of the
CRL. Given the Agency’s current violation of the CRL
as to all seven of its redevelopment plant adopted prior
to Amendment No. 1, as concluded in this Section, the

7-D

finding by the City that the redevelopment plan would
effectuate the purposes and policy of the CRL is not
supported by substantial evidence.

VI. FINANCIAL BURDEN OR DETRIMENT

A. Library is not estopped from challenging the
Amendment on the ground that it will suffer financial
detriment. The January 22, 1990 letter relied upon
Defendants, preceded Library’s participation in the fiscal
review process; a process which afforded all taxing
entities an opportunity to fully and completely review the
fiscal impact of the Amendment. (§§ 33352, 33353.3.)
The fiscal review process authorized under Section
33353, involved review of information submitted by
Defendants, a hearing on April 12, 1990 (§33353), and
submission of a report to Defendant on or about May
10, 1990. (§33353.5.)

B. The record lacks substantial evidence to
support the finding made by Defendant City pursuant to
Section 33367(d) (12) that "[t]he effect of tax increment
financing will not cause a significant financial burden or
detriment on any taxing agency deriving revenues from
a project area."

1. The Court finds that Defendants’ actions
thwarted effective review by the Fiscal Review
Committee ("FRC") and that evidence produced by
Plaintiffs throughout the process substantiates the claim
that the Amendment will cause significant financial
burden or detriment.

2. The record reveals that the FRC found that
the assessed valuation of the project area since 1986-87
(approximately two (2) fiscal years before the ordinance

8-D

approving the original plan became effective) had
increased by approximately 20 percent. The FRC
conclusion that the taxing entities could reasonably
expect to receive this or a substantial portion of this
historical increase in the absence of redevelopment
substantiates the claim that the Amendment would cause
significant financial burden or detriment under Section
33012(b).

3. The FRC Report authorized by Section
33353.5(b) complies with the statutory requirements of
the CRL and contains substantial evidence in and of
itself to support a claim of significant financial
detriment.

VII. DEFENDANTS FAILED TO COMPLY WITH
PROCEDURAL REQUIREMENTS

The written response and findings prepared by
Defendant Agency to the County’s written objections
filed at the joint public hearing of May 29, 1990
("Objections") did not meet the requirements set forth in
Section 33363. The Court finds that the response, in
part, failed to provide good faith, reasoned analysis.

VIII. PURPOSES OF THE COMMUNITY
REDEVELOPMENT LAW

Defendants City and Agency violated the
purposes of the Community Redevelopment Law
(§§33000 et seq.) in adopting the Amendment. The
evidence produced at trial reveals that the purpose of
the Amendment is to capture tax increment away from
the Citrus College, the County and other taxing entities
in the absence of blight and without substantial

9-D

justification. (Regus v. City of Baldwin Park (1977) 70
Cal.App.3d 968.)

IX. NEED FOR PUBLIC PARTICIPATION

A. Defendant City was required to make a
finding under Section 33457.1 and 33367(d)(11), and to
include that finding in Ordinance No. 666.

B. Defendant City failed to make that finding.
X. HOUSING ELEMENT

A. Defendant City was required to make a
finding under Sections 33457.1 and 33367(d)(4), and to
include that finding in Ordinance NO.666.

B. The General Plan of the City in effect at the
time of the adoption of Ordinance No. 666 is the one
against which the Amendment is to be adjudged for
consistency. A housing element is a mandatory element
of a general plan. (Cal. Gov. Code §65302(c).) The
Housing element of the City in effect at the time of the
adoption of the Amendment is the one adopted on
September 26, 1989.

C. Sections 33331 and 33367(d)(4) required both
that Ordinance No. 666 must have been consistent with
the City’s general plan in effect at the time of its
adoption on June 26, 1990 and that such general plan
must have been in compliance with state law. Lesher
Communications, Inc. v. City of Walnut Creek (1990) 52

Cal.3d 531, 537, 541, 544; Kings County Farm Bureau v.
City of Hanford (1990) 221 Cal.App.3d 692, 741-742;

Neighborhood Action Group v. County of Calaveras

10- D

(1984) 156 Cal.App.3d 1176, 1184, 1187-1188; Camp v.
Board of Supervisors (1981) 123 Cal.App.3d 334, 348-
353, 355.

D. To the extent that a nexus requirement exists
as to the requirement in Section 33367(D)(4), the City’s
Housing Element has a bearing on the Amendment
because the Amendment and the Original Plan projected
and implemented the destruction of 47 residential units,
many of which were occupied and affordable to low and
moderate income households. In contrast, the Housing
Element is required, among other things, to assess the
City’s housing needs and to adopt quantified objectives
and a five-year housing program to meet those housing
needs, particularly the needs for housing affordable to
low and moderate income households. The City’s
Housing Element did not substantially comply with the
requirements of the Housing Element Law (Cal. Gov.
Code §§ 65580 et. seq.) for the following reasons:

1. The Housing Element does not substantially
comply with the provisions of Government Code Section
65583(a)(3) for the following reasons, inter alia. The
"Inventory of land suitable for residential development"
consists merely of the City’s existing zoning categories by
gross acreage and maximum permissible density; it does
not specify the vacant sites in the City which are suitable
for such use and it does not consider areas not currently
zoned for residential use which are suitable for such use,
as required in Government Code Section 65583(a)(3).
Additionally, the date on the gross acreage for higher
density residential areas in the City’s Land Use Element,
rendering those two elements inconsistent and also in
violation of Government Code Section 65300.5. (Sierra

Club _v. Board of Supervisors (1981) 126 Cal.App.3d
698.)

11-D

2. The Housing Element does not substantially
comply with the provisions of Government Code Section
65583(a)(4) for the following reasons, inter alia: (1) it
fails to identify the City’s discriminatory treatment
against new low and moderate income housing which
subjects it to a design review process apparently not
applicable to other housing; (iii) it fails to analyze the
densities required for the development of housing
affordable to very low, low and moderate income
households and it fails to determine whether the City
has enough land zoned at such densities to meet its
existing and future housing needs for those households;
and (iv) it identifies, but fails to analyze, that
implementation of its land use policy may result in the
removal of housing;

3. The Housing Element does not substantially
comply with the provisions of Government Code Section
65583(a)(6) by failing to analyze the City’s needs for
emergency shelters;

4. The Housing Element does not substantially
comply with the provisions of Government Code Section
65583(b) in that it fails to establish quantified objectives
equal either to the City’s total housing needs by income
category or to the maximum number of low and
moderate income housing units that can be constructed,
rehabilitated or conserved over a five-year-time-frame,
as required in Government Code Section 65583(b). The
Housing Element fails to provide any evidence to
establish that the quantified objectives are the maamum
number of housing units that can be constructed,
rehabilitated, and conserved over a five-year time frame.

5. The Housing Element does not substantially
comply with the provisions of Government Code Section

12- D

65583(c) (first paragraph) in that it fails to utilize in its
housing programs land use and development controls or
to provide available regulatory concessions and
incentives for the development of very low and low
income housing;

6. The housing element does not substantially
comply with the provisions of Government Code Section
65583(c)(1) in that it fails to identify adequate sites
which will be made available through appropriate zoning
and development standards to meet the City’s housing
goals and needs for low and moderate income housing.
The failure of the Housing Element to have an adequate
inventory of land suitable for residential development
makes compliance with this requirement impossible;

7. The Housing Element does not substantially
comply with the provisions of Government Code
Sections 65583(c)(2) in that it fails to include program
actions which demonstrate that the City will use its local
power to assist in the development of adequate housing
to meet the City’s needs for very low, low and moderate
income households.

8. The Housing Element does not substantially
comply with the provisions of Government Code Section
65583(c)(3) in that it fails to address and remove
governmental constraints to the maintenance,
improvement and development of housing, particularly
low and moderate income housing. The failure of the
Housing Element to adequately analyze the City’s
governmental constraints makes compliance with this
provisions impossible.

9. The Housing Element does not substantially
comply with the provisions of Government Code Section

13- D

65583(c)(4) in that if fails to contain any program to
conserve existing housing affordable to lower income
households. (Buena Vista Gardens Apartment Assn. v.
City of San Diego Planning Department (1985) 175
Cal.App.3d 289, 302-303.)

10. The Housing Element does not substantially
comply with the provisions of Government Code Section
65588(a) in that it fails to contain an evaluation of the
three factors specified in
Government Code Section 65588(a)(1) to (3). As noted
by California Department of Housing and Community
Development the only thing which could qualify as such
an evaluation is the mere listing of gross annual housing
production of housing. While this information might be
considered to partially, though incompletely, satisfy the
requirement for an evaluation of "progress in
implementation" [Cal. Gov. Code Sec. 65588(a)(3)], the
Housing Element is totally devoid of any evaluation of
the "effectiveness of the element" or of the
appropriateness of goals, objectives and policies." (Cal.
Gov. Code Sec. 65588(a)(1) and (a)(2).

11. The City also failed to submit a draft of the
Housing Element to the California Department of
Housing and Community Development ("HCD") prior to
its adoption in violation of Government Code Section
65585. The violation deprived HCD of its statutorily
sanctioned input before adoption of the Housing
Element and, in itself, rendered the Housing Element
facially invalid.

This finding is based on the letter by HCD dated
June 27, 1990 reviewing Duarte’s adopted Housing
Element." [A.R. 1124] That evidence is not rebutted by
the declaration of Marc Blodgett submitted by

14-D

Defendants. Mr. Blodgett says that he "sent" the draft
amended Housing Element to HCD but does not explain
what he meant by "sent." This evidence does not invoke
the presumption established by Evidence Code section
641. Furthermore, Mr. Blodgett does not state
anywhere in his declaration that he was ever informed by
any HCD staff that HCD had received the draft
amended Housing Element. Consequently, the Court
cannot conclude that Defendants complied with the
requirement of Government Code section 65585 to
submit the City’s draft amended Housing Element to
HCD at least 45 days prior to its adoption.

XI. CONCLUSION

Based on the above, the Court hereby grants
judgment in favor of Plaintiffs declaring that Ordinance
No. 666 and Amendment No. 1 to the Rancho Duarte
Phase III Redevelopment Project are void and of no
effect. Furthermore, this Court grants judgment
declaring that Defendants Community Redevelopment
Agency of the City of Duarte and City of Duarte are not
entitled to implement the Amendment or demand or
receive tax increases in the Amendment area and that
said Defendants are not entitled to expend any such
revenues for carrying out the Amendment.

DATED: April 27, 1992
s/
RICHARD C. HUBBELL
Judge of the Superior Court

APPENDIX E

NO. BC 007 801
(Consolidated with BC 008 824
and BC 009 159)

In the Superior Court of the State of California
for the County of Los Angeles

CITRUS COMMUNITY COLLEGE DISTRICT,
Plaintiff,

VERSUS

ALL PERSONS INTERESTED IN THE MATTER
OF AMENDMENT NO. 1 TO THE
REDEVELOPMENT PLAN FOR THE RANCHO
DUARTE PHASE III REDEVELOPMENT
PROJECT IN THE CITY OF
DUARTE, etc., et al.

Defendants.

(Judgment April 27. 1992)
Before
HUBBELL. Superior Court Judge

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The above-captioned consolidated cases challenging the
validity of Amendment No. 1 to the Rancho Duarte
Phase III Redevelopment Project and Ordinance No.
666 approving the Amendment, came on regularly for
trial on January 27, 1992, in Department 21 on the
Superior Court of the State of California for the County
of Los Angeles, the Honorable Richard C. Hubbell,
presiding. The actions were filed pursuant to the
Community Redevelopment Law ("CRL") (Cal. Health
& Safety Code §§ 33000 et seq.) and Code of Civil
Procedure Section 860 et seq.

John J. Wagner, Sisneros & Wagner appeared on behalf
of Citrus Community College District ("Citrus College"),
Plaintiff in LASC Case No. BC 007 801. De Witt W
Clinton, County Counsel of the County of Los Angeles,
by and thorugh Manuel A. Valenzuela, Deputy County
Counsel appeared on behalf of the County of Los
Angeles, Los Angeles Flood Control District, Los
Angeles County Public Library and Consolidated Fire
Protection District of Los Angeles County (collectively,
the "County"), Plaintiffs in LASC Case No. BC 008 824.
Jonathan Lehrer-Graiwer and John E. Rittmayer
appeared on behalf of Alice Allen and Laura Feinner,
Plaintiffs in LASC Case No. BC 009 159. Jeffrey M.
Oderman and Dan Slater of Rutan & Tucker appeared
on behalf of Defendants.

The Court having taken the above matter under
submission on January 27, 1992 after a trial, and having
read and considered all of the exhibits and considered
the summation of counsel and the evidence produced by
both sides on trial of the issues, and having issued its
ruling on the matter:

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NOW, THEREFORE, IT IS ORDERED,
ADJUDGED, AND DECREED as follows:

1. Amendment No. 1 to the
Redevelopment Plan for the Rancho Duarte Phase III
Redevelopment Project ("Amendment") in the City of
Duarte and Ordinance No. 666 approving the
Amendment are void and of no effect.

ae Defendants City of Duarte ("City")
and Redevelopment Agency of the City of Duarte
("Agency") are not entitled to implement the
Amendment or demand or receive tax increment
revenues attributable to the assessed valuation increases
in the Amendment area and that said Defendants are
not entitle to expend any such revenues for carrying out
the Amendment.

3. Defendants City and Agency are
hereby permanently enjoined from taking any action to
implement or carry out the Amendment, and from
receiving any tax increment revenues from the Rancho
Duarte Phase III Redevelopment Project area
attributable to the Amendment.

4 Upon proper motion, Citrus
Community College District, Plaintiff in LASC Case No.
BC 007 801, shall be entitled to recover from
Defendants City and Agency, and each of them, its costs
of suit as provided in Code of Civil Procedure 1033.5, as
determined by this Court.

5. _. Upon proper motion, County of Los
Angeles, Los Angeles Flood Control District, Los
Angeles County Public Library and Consolidated Fire

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Protection District of Los Angeles County, Plaintiffs in
LASC Case No. BC 008 824, shall be entitled to recover
from Defendants City and Agency, and each of them,
their costs of suit as provided in Code of Civil Procedure
1033.5, as determined by this Court.

6. Upon proper motion, Alice Allen
and Laura Feinner, Plaintiffs in LASC Case No. BC 009
159, shall be entitled to recover from Defendants City
and Agency, and each of them, their costs of suit as
provided in Code of Civil Procedure 1033.5, as
determined by this Court.

DATED: April 27, 1992

RICHARD C. HUBBELL
Judge of the Superior Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0628%3A1. Public record. Not legal advice.