Preview
Scott E. Jenny, Esq. — State Bar No. 166111
JENNY & JENNY, LLP
736 Ferry Street
Martinez, California 94553
Telephone: 925) 228-1265
Facsimile: (925) 228-2841
Attorney for Defendant
D.E. II RESTAURANTS, INC.
IN THE SUPERIOR COURT OF THE STATE CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
10
IL
CITY OF SANTA CLARA, a California Case No.: 19CV340508
12 Charter City
D.E. Il RESTAURANTS, INC.’S
13 Plaintiff, OPPOSITION TO PLAINTIFF CITY OF
VS. SANTA CLARA’S MOTION TO LIMIT
14 EVIDENCE AT RIGHT TO TAKE TRIAL
TO THE CERTIFIED ADMINISTRATIVE
15 D.E. II RESTAURANTS, INC., a California RECORD
corporation; and DOES 1-50,
16 Hon. Peter H. Kirwan
Defendants.
17
18
19 D.E. II RESTAURANTS, INC.
20 Date: December 20, 2019
Cross-Complainant, Time: 10:00 a.m.
21 Dept.: 19
VS.
22
CITY OF SANTA CLARA, a California
23
Charter City and ROES 1 through 10,
24 inclusive,
25 Cross-Defendants.
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27
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D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO
LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD
TABLE OF CONTENTS
INTRODUCTION
IL STATEMENT OF FACTS
Ill. LEGAL ANALYSIS
1 Defendants are Entitled to Introduce Evidence
Outside the Administrative Record at Trial on
Their CCP §1250.360 Objections
Right to Take Trials are Full Evidentiary Trials
Legislative Decisions to Condemn are Subject
to Judicial Review.
10
The Challenge to the Resolution of Necessity
iW is Limited to the Administrative Record Except
for the Issue of Predetermination
12
5 The Taking Violates the Public Use Requirement 13
13
IV. CONCLUSION 14
14
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D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO
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TABLE OF AUTHORITIES
Cases
Armendariz v. Penman, (9th Cir.1996) 75 F.3d 1311... 13
Burbank-Glendale-Pasadena Airport Authority v. Hensler
(1991) 233 Cal. App. 3d 577 8,9
City and County of San Francisco v Ross (1955) 44 C2d 52 13
City of Los Angeles v. Keck (1971) 4 Cal.App.3d 920
10
City of National City v. State of California (1983) 140 Cal. App. 3d 598
ul
12
City of Oakland v Oakland Raiders (1982) 32 C3d 60
13 City of Sunnyvale v. Hinz (2004) 115 Cal-App.4th 1202 5,6,7
14
County of Hawaii v. C & J Coupe (2008, Hawaii Supreme Court) 119 Hawaii 352
15
Cox Cable San Diego, Inc. v. Bookspan (1987) 195 CA3d 22 13
16
Fallbrook Irrigation District v Bradley (1896) 164 U.S. 112
17
18 Franco v. National Capital Revitalization Corp.,
(District of Columbia, Court of Appeals, 2007) 930 A.2d 160
19
Kelo v. City of New London (2005) 545 US 469 5,6
20
21 Lagiss v. Contra Costa County (1963) 223 Cal.App.2d 77
22 Long Beach Community Redevelopment Agency v. Morgan, (1993) 14 Cal.App. 4th 1047
23
People v. Lagiss (1964) 223 CA.2d 23, 41
24
Redevelopment Agency v Norm's Slauson (1985) 173 Cal.App.3d 1121 7,10
25
San Bernardino County Flood Control Dist. v. Grabowski (1988) 205 Cal.App.3d 885 4,10
26
27 Santa Cruz Redevelopment Agency v Izant (1995) 37 Cal.App.4th 141 1, passim
28 Thompson v. Consolidated Gas Corp. (1937) 300 U.S. 55 13
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United States v. 2606.84 Acres of Land (Sth Cir.,1970) 432 F.2d 1286
United States v. 58.16 Acres of Land, (7th Cir., 1993) 475 F.2d 1055
United States v. Carmack (1946) 329 US 230
Other Authorities
10
California Code of Civil Procedure, section 1240.030. 6,7,8
i
California Code of Civil Procedure, section 1245.250,
12
13 California Code of Civil Procedure, section 1245.255. 1, 2, 6,7
14
California Code of Civil Procedure, section 1245.270. 11
15
California Code of Civil Procedure, section 1245.270(a) 11
16
California Code of Civil Procedure, section 1245.360(a)-(h).
17
18 California Code of Civil Procedure, section 1250.360 1, 2, 3,4
19 California Code of Civil Procedure, section 1255.410 1,5,9
20
California Code of Federal Regulations, 49, part 24 12
21
California Code of Regulations, 25 section 6000, 6040, 6048 12
22
23 California Constitution at article 1 § 19.
24 California Relocation Act, section 6016 14
25
Government Code section 7267.2... 0.6.60. ccc ce cece ee eeeeeeeeeees
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I INTRODUCTION
The City of Santa Clara is arguing that the D.E. II RESTAURANTS, INC. is limited
solely to the evidence contained in the administrative record in the right to take trial. This
precise argument was analyzed and rejected in Santa Cruz Redevelopment Agency v. Izant
(1995) 37 Cal.App.4th 141. Jzant makes clear that only the challenge to the resolution of
necessity brought pursuant to Code of Civil Procedure section 1245.255 is limited to the
administrative record. /zant makes equally clear that for the right to take objections brought
pursuant to Code of Civil Procedure section 1250.360 defendant is allowed to introduce
evidence.
I. STATEMENT OF FACTS
10 David Ebrahimi and his family have been business owners and operators in the City of
1 Santa Clara for the past 45 years. Mr. Ebrahimi has operated David’s Restaurant for 32 years
12 pursuant to a long-term lease with the City of Santa Clara. Based on Mr. Ebrahimi’s excellent
13 track record, 19 years ago, the City entered into a long-term lease for David’s Banquet Facility.
14 With option periods, there are 11 years remaining on the Banquet Facility lease, and every
15
indication the lease would have continued thereafter.
The City of Santa Clara made a public announcement on March 9, 2013 regarding the
16
project for which the business is being taken, including all 236 acres and including the removal
17
of D.E. Il RESTAURANTS, INC.’s restaurant, the golf course, fire station, pro shop and tennis
18
courts.
19
D.E. II RESTAURANT’S, INC. is objecting to the right to take on the following
20 grounds: (1) the project fails to satisfy the statutory requirement of providing for the greatest
21 public good with the least private injury and is not for a public use; (2) the project is not even in
22 final design yet, and therefore the resolution is fatally defective as vague; (3) the project will not
23 be completed within seven years of the taking pursuant to California Code of Civil Procedure
24 section 1240.220; (4) the “project” described in the resolution of necessity is pretextual, was
25
predetermined is not consistent with the environmental documents, has not been
environmentally studied, fails a CEQA analysis, and thus any action taken is void; (5) the
26
environmental documents do not address, analyze or permit the use of eminent domain; (6)
27
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D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT.
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Government Code section 7267.2 has not been satisfied; and (7) the City has failed to provide
any location for David’s to relocate.
TH. LEGAL ANALYSIS
1, Defendants are Entitled to Introduce Evidence Outside the Administrative
Record at Trial on their CCP §1250.360 Objections
The City has signaled that it believes D.E. II RESTAURANTS, INC. is limited to the
administrative record on all of its right to take objects. The City’s exact argument was rejected
in Santa Cruz Redevelopment Agency v Izant (1995) 37 Cal.App.4th 141. (“Jzant’”) The holding
in Izant definitively states that while property owners are limited to a review of the Agency’s
proceeding when the property owners challenge the validity of the resolution of necessity
10 pursuant to California Code of Civil Procedure section 1245.255', property owners are not
i limited to a review of the agency’s proceedings or the so-called administrative record on the
12 statutory objections to the right to take set forth in section 1250.360. (/d. at 150-51.) Thus only
13 the challenge to the resolution of necessity which must be brought pursuant to section 1245.255
14 is limited to the administrative record while all affirmative defenses raised pursuant to section
15
1245.360(a)-(h) are entitled to a full evidentiary trial.
To understand the /zant holding, it is necessary to examine the difference between.
16
section 1245.255 and section 1250.360. Section 1245.255 provides that a person having an
17
interest in property described in a resolution of necessity may obtain judicial review of the
18
validity of the resolution of necessity. Review is available before the eminent domain action via
19
a writ of mandate pursuant to section 1085 or after the commencement of the eminent domain
20
proceeding by objection to the right to take. The standard of review on a resolution of necessity
21 (which is a quasi-legislative act) is a gross abuse of discretion standard. And in determining
22 whether there was a gross abuse of discretion, the trial court’s review is limited to “a review of
23 the Agency’s proceedings.” (/zant, supra, 37 Cal.App.4th at 150.)
24 However, as the court in Jzant noted, where the challenges to the right to take are not
25
limited to the validity of the adoption of the resolution of necessity, but included defenses raised
pursuant to section 1250.360 property owners are “entitled to introduce evidence on these other
26
issues.” (/d. at 151.) The distinction makes sense since the issue of the necessity of the property
27
28 " All code references are to the California Code of Civil Procedure unless indicated.
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is a legislative function and subject to deferential review. All the other objections are properly
the purview of the judiciary and not entitled to deference.
Section 1250.360 sets forth the grounds for objecting to the right to take (as opposed to
attacking the validity of the adoption of the resolution of necessity) and these grounds apply
regardless of whether the condemning agency has adopted a resolution of necessity. Those
grounds in relevant part include:
(a) Plaintiff is not authorized by statute to exercise the power or eminent
domain for the purpose stated in the complaint.
() The stated purpose is not a public use. . . .
10 (©) The described property is not subject to the acquisition by the power of
eminent domain for the stated purpose.
11
(hy Any other ground provided by law.
12
In Jzant, the property owners raised many of the statutory objections set forth in section
13
1250.360 in their answer, including that “the stated purpose was not a public use, that the
14
primary purpose of the taking was for the private benefit of the bank, and that Agency did not
intend to devote the property to the stated purpose.” The court ruled that:
16
7 “Appellants are plainly entitled to a trial on their objections to
18 the right to take, and are entitled to introduce evidence in
support of those claims. As the Comments to section 1250.360
19 note, these objections ‘may be raised in any eminent domain
proceeding regardless of whether the plaintiff has adopted a
20 resolution of necessity that is given conclusive effect on other
21 issues.” Accordingly, the trial court erred in prohibiting appellants
from introducing evidence and therefore the judgment must be
22 reversed.” (/d. at 152. emphasis added.)
23
The City cites to Jzant in an attempt to say that the entire right to take issue must be
24 limited to the administrative record because any challenge to “the validity of the resolution of
25 necessity under section 1245.255 is limited to a review of the agency’s proceedings,” and “[nJo
26 additional evidence may be admitted...” (Id.) But the City mischaracterizes D.E.
27 RESTAURANTS, INC.’s objections as being objections regarding the validity of the RON.
28 With the exception of its challenges to the Resolution of Necessity, DE. RESTAURANTS,
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D.E. II RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT
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INC. has asserted its objections pursuant to section 1250.360, for example the violation of the
seven year requirement of section 1240.220, for which D.E. RESTAURANTS, INC. is entitled
to introduce evidence outside the administrative record pursuant to /zant.
2. Right to Take Trials are Full Evidentiary Trials.
The City’s contention that D.E. II RESTAURANTS, INC. is limited to the
administrative record on its right to take challenge also fails to recognize the case law which
overwhelmingly indicates that defendant is entitled to a full evidentiary trial.
The California Supreme Court’s decision in City of Oakland vy Oakland Raiders (1982)
32 C3d 60 (“Oakland Raiders’) specifically addresses the issue as it relates to the issue of
public use which is one of the specifically enumerated basis to challenge under section
10 1250.360(b). In that case, the trial court granted a summary judgment motion in favor of the
I property owner, concluding that as a matter of law no statutory or charter provision specifically
12 authorized the taking of a professional football franchise and that the operation of such a
13 franchise was not a recognized public use. The Supreme Court reversed and remanded the case,
14 holding that “The City and the Raiders should be afforded a full opportunity before a trial court
15 to present the ‘facts and circumstances’ of their respective sides during a trial on the merits.””
(id. at 76.) The Court further stated, “Our conclusion . . . is reinforced by the long recognized
16
and fundamental importance of the ‘facts and circumstances’ of each case in determining
17
whether a proposed use is a proper public use.” (Jd. citing Fallbrook Irrigation District v
18
Bradley (1896) 164 U.S. 112, 159-160.)
19
Moreover, there are numerous cases that demonstrate that objections to the right to take
20
are to be heard on the merits regardless of whether a resolution of necessity was adopted. In
21 City of Los Angeles v. Keck (1971) 4 Cal.App.3d 920 a trial was conducted on plaintiff's right to
22 take with evidence and testimony admitted even though the condemning agency had adopted a
23 resolution of necessity. In San Bernardino County Flood Control Dist. v. Grabowski (1988)
24 205 Cal.App.3d 885, the Board adopted a resolution of necessity and a “trial was commenced in
25 the action [and the] trial court first heard evidence on [defendant’s] objections to the
[condemning agency’s] ‘right to take’ the property....” (/d. at 892.) In Long Beach Community
26
Redevelopment Agency v. Morgan, (1993) 14 Cal.App. 4th 1047, “the first phase of trial on the
27
right to take issue was conducted over three days....” (/d. at 150.) Also, in Jzant, supra, the
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Court of Appeal ruled that the trial court erred in prohibiting the landowner from introducing
evidence to support its objections to the right to take and judgment was reversed and remanded
for a trial on those issues. (/zant, supra, 37 Cal.App.4th at 152, 153; See also People v. Lagiss
(1964) 223 CA.2d 23, 41 [The court’s role is to determine whether the public use stated in the
resolution is the real use and requires the court to review the evidence to see what the actual
intent of the condemnor is].)
Finally, City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202 the trial court granted the
condemnor’s motion to exclude evidence of the formation of an assessment district because that
defense was barred by statute of limitations:
10 “The court did, however, permit [the owner] to introduce
extensive, detailed evidence regarding the history and formation of
11 the district as background because it was relevant to [the owner’s]
other defenses. Hinz, supra, 115 Cal.App.4th at 1211.
12
13 The owner in Hinz introduced 49 documentary and video tape exhibits that dealt with
14 the history and formation of the assessment district prior to the adoption of the resolution of
necessity authorizing the easement domain action. (/d. at fn. 5.)
15
3 Legislative Decisions to Condemn Are Subject to Judicial Review.
16
It is anticipated that the City is going to argue that the court’s review of Agency actions is
7
strictly limited. This argument is without merit. Legislative discretionary activity on the part of
18
a municipal body is subject to judicial inquiry and interference, even though such body’s
19
determinations and proceedings are proper on their face, if such body exceeds its legislative
20 powers or if its judgment or discretion is fraudulently or corruptly exercised or its actions are
21 tainted by fraud or bad faith. (Lagiss v. Contra Costa County (1963) 223 Cal.App.2d 77, 92-93
22 (and cases cited therein); see also United States v. 58.16 Acres of Land, (7th Cir., 1993) 475
23 F.2d 1055, 1058-1059 and United States v. 2606.84 Acres of Land (Sth Cir.,1970) 432 F.2d
24 1286, 1290. [Error for the court not to consider whether the agency acted arbitrarily and
capriciously, or in bad faith in deciding to condemn.]
25
The United States Supreme Court has specifically stated that the power to condemn is
26
subject to review to determine if the designated officials have acted in bad faith or arbitrarily or
27
capriciously. (United States v. Carmack (1946) 329 US 230, 243.) Moreover, in Kelo v. City of
28
New London (2005) 545 US 469 (“Kelo”), the Court noted that there may be situations where a
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court should not take at face value what the legislature has said. (Jd. at 478 [Kelo court
specifically noted that this is not a condemnation case where there is evidence of illegitimate
purpose.])
Thus, judicial review is warranted where bad faith is alleged since the “government will
rarely acknowledge that is acting for a forbidden reason, so a property owner must in some
circumstances be allowed to allege and demonstrate that the stated public purpose for the
condemnation is pretextual.” Franco v. National Capital Revitalization Corp., (District of
Columbia, Court of Appeals, 2007) 930 A.2d 160, 169 relying on Kelo supra; See also, County
of Hawaii v. C & J Coupe (2008, Hawaii Supreme Court) 119 Hawaii 352, 375 [Kelo opinion
permits the courts to look beyond a condemnor’s asserted public purpose in certain
10 circumstances].)
11 4. The Challenge to the Resolution of Necessity is Limited to the
12 Administrative Record Except for the Issue of Predetermination.
13 As a condition precedent to the exercise of the power of eminent domain, a public
14 agency must hold a public hearing to determine whether a particular taking meets the criteria of
15
public necessity as set forth in section 1240.030. (Santa Cruz County Redevelopment Agency v
Izant (1995) 37 CA4th 141, 148.) The three findings of necessity set forth in section 1240.030
16
are: (1) the public interest and necessity require the project; (2) the project is planned or located
7
in the manner that will be most compatible with the greatest public good and the least private
18
injury; and (3) the property sought to be acquired is necessary for the project.
19
Generally, the trial court’s review of the validity of the adoption of the resolution of
20
necessity under section 1245.255 is limited to a review of the agency’s proceedings or what is
21 commonly referred to as the “administrative record.”
22 Pursuant to section 1245.250, a resolution of necessity adopted by the governing body of
23 the public entity conclusively establishes the three criteria set forth in section 1240.030.
24 However, a resolution of necessity will not have a conclusive effect as to these three criteria "to
25 the extent that its adoption or contents were influenced or affected by a gross abuse of discretion
by the governing body." (Code of Civil Procedure section 1245.255(b).)
26
In Hinz, supra, the Court noted that a gross abuse of discretion may be shown in two
27
ways. One way is a lack of substantial evidence supporting the resolution of necessity. The
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D.E. II RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT
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other way is to show that at the time of the agency hearing the condemnor had effectively pre-
committed itself to taking the property regardless of the evidence presented. (/d. at p. 1221)
The owner in Hinz objected to the resolution on each of these separate grounds. (Id.) The
appellate court (and possibly the trial court) in Hinz went on to analyze each abuse of discretion
claim separately (Compare Section 2 (p. 1222-1225) of the Hinz opinion considering the lack of
substantial evidence in the record objection to Section 3 (p. 1226-1227) of the opinion
addressing objection based on pre-commitment.)
Like the owner in Hinz, D.E. II RESTAURANTS, INC. has objected to the resolution of
necessity on both grounds. Defendant’s Second Objection addresses the lack of substantial
evidence in the record while Defendant’s Fourth Objection is that prior to the adoption of the
10
resolution of necessity, the Agency Board had predetermined that it was going to condemn the
11 subject property and had through its arrangements with Related Santa Clara, LLC (Related)
12 irreversibly committed itself to doing so. (Redevelopment Agency v Norm's Slauson (1985) 173
13 Cal.App.3d 1121, 1127.) Thus, defendant contends that it is limited to the administrative record
14 on its Second Objection but not the Fourth Objection alleging predetermination in its allegation
15
that the RON was merely pretextual. In Ordinance No. 1956 the City entered into a
development agreement with Related to perform the City Place Santa Clara Project, the project
16
for which D.E. II’s property is being taken. Ordinance No. 1956 is dated June 22, 2016. The
17
RON is dated December 11, 2018. So the City entered into an agreement to construct the
18
project over two years before drafting the RON. The development agreement pre-committed
19
the City to the Project before the RON was completed.
20
In Norm’s Slauson, prior to the adoption of the resolution of necessity, the
21 Redevelopment Agency entered into a contract with a third-party developer by which the
22 Agency agreed to acquire the property for transfer to the developer for a condominium project.
23 The court held that in so doing, the City had impermissibly precommitted itself to condemning
24 the property and that the resolution of necessity was thus a sham, which was not entitled to its
25 usual conclusive effect. As such, the Court held the Agency had the burden of proving that the
proposed condemnation satisfied the basic requirements of Code of Civil Procedure section
26
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1240.030° which it failed to do. Thus, the court ruled that the Agency had no right to condemn
the subject property.
The City is not able to break up this Master Plan into smaller phases and avoid the fact
that this is one Master Plan. The scope of a project is defined by the environmental documents.
California law defined the “project” by the specific plans and environmental documents. In
City of National City v. State of California (1983) 140 Cal. App. 3d 598, the court defined a
project. In footnote 2 on page 603, the National City court stated:
In determining what is a project within CEQA, California
Administrative Code, title 14, section 15378 provides:
(a) Project means the whole of an action, which has a potential for
10 resulting in a physical change in the environment, directly or
11 ultimately, that is any of the following:
12 (1) An activity directly undertaken by any public agency including
but not limited to public works construction and related activities,.’
13
More specifically, subdivision (c) states:
14 The term ‘project’ refers to the activity which is being approved
and which may be subject to several discretionary approvals by
15 governmental agencies. The term 'project' does not mean each
separate governmental approval." (Emphasis added & some
16
internal quotes omitted)
7
Although the National City case was decided within the context of an unsuccessful
18
attempt by the city to compel the State of California to go forward with the project as defined,
19
its rule concerning the description of the project has been applied since in a condemnation case.
20
In Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal. App. 3d 577 the
21 court considered an order by the trial court dismissing the condemnation action because the
22 plaintiff's EIR did not properly describe the project so as to include the D.E. II
23 RESTAURANTS, INC.'s real property. The trial court's order was affirmed. The Hensler court
24 stated (p. 592, emphasis added):
25
26 ? Code of Civil Procedure §1240.030 provides that the power of eminent domain may only be exercised if (a) the
public interest and necessity require the project, (b) the project is planned or located in the manner that will be mos'
27 compatible with the greatest public good and least private injury; and (c) the property sought to be acquired ig
necessary for the project.
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CEQA mandates that environmental considerations not become
submerged by chopping a large project into many little ones, each
with a potential impact on the environment, which cumulatively
may have disastrous consequences. (City of Santee v. County of
San Diego (1989) 214 Cal.App.3d 1438, 1452 [263 Cal.Rptr.
340].) CEQA attempts to avoid this result by defining the term
"project" broadly. (Ibid.) A project under CEQA is the whole of
an action which has a potential for resulting in a physical change in
the environment, directly or ultimately, and includes the activity
which is being approved and which may be subject to several
discretionary approvals by governmental agencies. (McQueen v.
Board of Directors (1988) 202 Cal.App.3d 1136, 1143 [249
Cal.Rptr. 439].)" (Emphasis added.)
10 The Hensler court continued (p. 592, emphasis added):
i
An accurate, stable and finite project description is the sine qua
12 non of an informative and legally sufficient EIR; the defined
project and not some different project must be the EIR's bona fide
13
subject. (Mira Monte Homeowners Assn. v. County of Ventura
14 (1985) 165 Cal.App.3d 357, 365 [212 Cal.Rptr. 127].) 'CEQA
compels an interactive process of assessment of environmental
15 impacts and responsive project modification which must be
genuine. It must be open to the public, premised upon a full and
16
meaningful disclosure of the scope, purposes, and effect of a
17 consistently described project, with flexibility to respond to
unforeseen insights that emerge from the process. (Id., at p. 366,
18 internal quotation marks omitted.)
19
After concluding that the project description in the EIR did not correctly describe the
20
project so as to include the Hensler’s property which was being condemned, the court stated (p.
594):
22
Accordingly, the procedure followed by appellant violated section
23 15004, subdivision (b)(1) of title 14 of the California Code of
Regulations (hereinafter referred to as Guidelines), which provides
24
that "With public projects, at the earliest feasible time, project
25 sponsors shall incorporate environmental considerations into
project conceptualization, design, and planning. CEQA
26 compliance should be completed prior to acquisition of a site for a
public project.
27
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Thus, the “project” is defined by the specific plan and environmental documents and
cannot “become submerged by chopping a large project into smaller ones, each with a potential
impact on the environment, which cumulatively may have disastrous consequences.” In fact,
The City of Santa Clara responded to David's request for public records concerning the
proposed road by referring to the June 28, 2016 Council agenda (item 14) on the subject of the
Master Development Plan. The November 5, 2018 letter from the City Manager regarding the
December 11 meeting states in its first paragraph that the City is "considering constructing a
road." Thus, no final decision to construct the road has been made. Such action would require
environmental review which has not occurred. Furthermore, the law does not permit the local
legislative body to approve a road under an agenda item that only refers to the matter of taking
10
away the Banquet Hall.
I Here, this means that the RON Notice referring to this Project as a mere road relocation
12 project is again pretextual and is in fact a part of the Master Plan discussed herein. Neither the
13 Master Plan nor the realigned road have been finalized or vetted through the environmental
14 process. The real Project is not to be completed within seven years of this action by the City.
15 No reported California case has directly ruled on the issue of admission of evidence to
prove predetermination. However, logic and fundamental principles of fairness dictate that D.E.
16
II RESTAURANTS, INC. would not be limited to the administrative record on the issue of
17
predetermination at time of trial. Since an abuse of discretion can be proven by showing
18
predetermination this objection cannot logically be limited to the City’s record. By its very
19
definition predetermination requires that all of the facts and circumstances leading up to the
20
decision to condemn must be reviewed to determine if the City had effectively precluded any
21 option except taking the D.E.II RESTAURANTS, INC. Property. It would be impossible for
22 Defendant to prove that the RON is void because it is breaking up one Master Plan into smaller
23 Phases without looking to evidence outside the administrative record.
24 Moreover, a review of facts contained in Norm's Slauson indicates that evidence outside
25 the record is appropriate. “[T]he trial court, on the basis of uncontroverted evidence concerning
the chronology which led to the hearing on the resolution of necessity, found that the resolution
26
was affected by a gross abuse of discretion.” (Norm's Slauson, supra, 173 Cal.App.3d at 1128 —
27
28
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1129.) As indicated earlier the gross abuse of discretion in Norm’s Slauson was the
predetermination conduct.
In San Bernardino County Flood Control District v. Grabowski (1988) 205 Cal.App.3d
885, the owner challenged the resolution of necessity for an abuse of discretion for various
reasons including bribery pursuant to section 1245.270. Section 1245.270(a) requires the owner
to prove its bribery accusation by a preponderance of the evidence standard. The trial court in
Grabowski “...enjoyed the luxury of being able to actually weigh the credibility of the
witnesses as they testified on the conflict-of-interest issue.” (Grabowski, supra, 205
Cal.App.3d at 849, fn. 3.) This is a logical result since evidence of bribery, like
predetermination, would not be found in the record unless there is an extremely stupid
10
condemning agency. Accordingly, defendant should be permitted to introduce evidence to
11 establish that the City had effectively precluded its ability to exercise its discretion by its actions
12 leading up to the adoption not the Resolution of Necessity.
13 The Project will not be completed until 2035 and there is no evidence that this first
14 phase needs to occur today. The Master Community Plan of April 5, 2017 states that there are
15 seven phases to this project with a completion date in 2035 and indicates throughout that every
design is preliminary. To date there is no final plan for the development.
16
The map, which is at the heart of this RON Hearing is not consistent with the Master
17
Community Plan of April 5, 2017. Exhibit 3-1 to the Master Community Plan is not consistent
18
with the construction drawings submitted to David’s in support of the RON Hearing. The roads
19
are not aligned the same way. Thus, the RON Hearing drawing has not been vetted through any
20
environmental review process and has not been approved by the City. Given the current layout
21 of the road as shown in the RON, there is no public necessity for this project at this time
22 because it does not assist in transportation in any way as designed for this RON.
23 The Master Community Plan’s environmental review was approved at the REGULAR
24 CONCURRENT MEETING OF THE CITY OF SANTA CLARA CITY COUNCIL SANTA
25 CLARA STADIUM AUTHORITY SPORTS AND OPEN SPACE AUTHORITY CITY OF
SANTA CLARA HOUSING AUTHORITY TUESDAY, JUNE 28, 2016. The agenda item
26
was for the CityPlace Santa Clara Project located at 5155 Stars and Stripes Drive, et. al., on an
27
approximately 240 acre site. (APNs: 104-03-036, 104-03-037, 104-03-038, 104-03-039, 104-
28
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D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT
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001-102, 097-01-039 and 097-01-073)[PLN2014-10554, CEQ2014-01180,
SCH#2014072078]. The Council adopted Resolution No. 16-8337 entitled “A RESOLUTION
OF THE CITY OF SANTA CLARA, CALIFORNIA APPROVING AND CERTIFYING A
FINAL ENVIRONMENTAL IMPACT REPORT, ADOPTING CEQA FINDINGS WITH
RESPECT THERETO, AND ADOPTING A STATEMENT OF OVERRIDING
CONSIDERATIONS AND A MITIGATION MONITORING AND REPORTING PROGRAM
FOR THE CITY PLACE SANTA CLARA PROJECT LOCATED AT 5155 STARS AND
STRIPES DRIVE, ET AL, SANTA CLARA” approving and certifying an Environmental
Impact Report and adopting California Environmental Quality Act (CEQA) Findings, a
Statement of Overriding Considerations (SOC) and the Mitigation Monitoring and Reporting
10
Program (MMRP) with an amendment to paragraph 7 indicating that Exhibit 1 to the
V1 Resolution, the MMRP, shall be amended to reflect that the Montague/Zanker intersection lies
12 within the City of San Jose jurisdiction rather than the County of Santa Clara jurisdiction with
13 the corresponding fair share funds being reallocated to the City of San Jose thus increasing the
14 City of San Jose share and decreasing the County of Santa Clara share of the fair share fee.
15
Thus, the only environmental approval was for the entire 240-acre Plan. Among the
significant effects on the environment would be the elimination of buildings and services and
16
the re-routing of traffic in the area during construction and thereafter. These effects need to be
17
evaluated under CEQA. There has not been any CEQA review of a smaller project such as the
18
one shown on the RON construction plan.
19
No environmental document has addressed the use of eminent domain as against any
20
property rights The only reference is in the Master Community Plan of April 5, 2017 which
21 states:
22 The acquisition process approved by this Council is addressed in
Chapter 8, Infrastructure Overview. Section 8.1 includes a section
23
entitled “Property Acquisition, Dedication & Easements Concept”
24 and states that the majority of the infrastructure shall be
constructed within the public right-of-way or dedicated easements.
25 There is no mention of the use of eminent domain to take private
property rights from any business or individual. This section also
26
again states that the project layout is merely proposed and not final
27 by stating “[t]he eventual project layout within the project
boundaries will ultimately determine the entity that owns, operates
28 and maintains each infrastructure element.”
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The Preliminary Infrastructure Master Plan dated August 5, 2016, Section 1.2 states:
1.2 Property Acquisition, Dedication and Easements
The Mapping, property acquisition, dedication and acceptance of
streets and other infrastructure improvements will occur through
the Subdivision Map process in accordance with the City’s
Subdivision Code and Regulations. Except as otherwise noted, all
infrastructure described in this Plan shall be constructed within the
public right-of-way or dedicated easements to provide for access
and maintenance of infrastructure facilities. The eventual project
layout within the Project boundaries will ultimately determine the
entity that owns, operates and maintains each infrastructure
element. City Resolutions to address the private infrastructure
10 elements and specific public utility easements will be allowed
within the Project as may be necessary to service the development.
11 Utilities in these areas will be installed in accordance with the
standards in this Plan and applicable City Regulations for public
12
acquisition and acceptance within public utility easement areas,
13 including provisions for maintenance access.
14 Nowhere in the document does it then go on to specifically note any property
15 acquisition. David’s has a property right in its lease which is not discussed in any
16 environmental document.
17 Finally, and perhaps most importantly, the appraisal is not even signed by an appraiser.
18 The offer and appraisal is only signed by the City Manager. The appraisal is therefore void. It
cannot form the basis of a proper appraisal as required by law when it is not signed by an
19
appraiser.
20
5. The Taking Violates the Public Use Requirement.
21
The power to take property is strictly limited. An individual or entity may exercise the power of
22
eminent domain, only if the taking is for a public use and only if a statute specifically grants the
23
individual or entity the power of eminent domain. CCP §1240.010; Cox Cable San Diego, Inc.
24 v. Bookspan (1987) 195 CA3d 22, 27. This is in keeping with the "public use" provision of the
25 Takings Clause contained in the Fifth Amendment of the U.S. Constitution and the California
26 Constitution, Art. 1 §19. The wording of both documents requires that any taking of private
27 property must be for a “public use”. The "public use" requirement is an explicit limit on the
28 power of government to take private property. The Supreme Court has long recognized, a
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taking, even if justly compensated, must serve a legitimate public purpose. See Thompson v.
Consolidated Gas Corp. (1937) 300 U.S. 55, 80. The “Constitution does not contemplate that
the exercise of the power of eminent domain shall secure to private activities the means to carry
on a private business whose primary objective and purpose is private gain and not public need.”
City and County of San Francisco v Ross (1955) 44 C2d 52, 59. Thus, a taking for a purely
private use is unconstitutional no matter the amount of just compensation that may be given.
Thompson, supra 300 US at 80; Armendariz v. Penman, (9th Cir.1996) 75 F.3d 1311, 1320.
The proposed taking violates the “public use” provision of the takings clause contained
in the Fifth Amendment of the U.S. Constitution and Art. 1, §19 of the California Constitution
as the take is not for a public purpose but rather merely transfers privately held properties to
10
another private individual, to wit, Related Santa Clara. The Resolutions of Necessity define the
i public use as “however the true use is the private 240-acre redevelopment project called Related
12 Santa Clara. The City is not authorized by statute to exercise the power of eminent domain for
13 the purpose specified in the Resolutions of Necessity.
14 Iv. CONCLUSION
15
Only defendant’s second, fourth, and fifth objections are limited to the administrative
record. The City’s contention that all of D.E. RESTAURANT’S, INC.’s right to take objections
16
are limited to the administrative record is legally unsupportable. The Izant decision found this
17
exact argument to be erroneous. To follow the City’s reasoning is reversible error.
18
19
20
DATED: December _\\ , 2019 JENNY & JENNY. LLP
21
22 B
23
" SCOTT E. JENNY, ESQ.
Attorney for Defendant
24 D.E. II RESTAURANTS, INC.
25
26
27
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Preview
Scott E. Jenny, Esq. — State Bar No. 166111 JENNY & JENNY, LLP 736 Ferry Street Martinez, California 94553 Telephone: 925) 228-1265 Facsimile: (925) 228-2841 Attorney for Defendant D.E. II RESTAURANTS, INC. IN THE SUPERIOR COURT OF THE STATE CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION 10 IL CITY OF SANTA CLARA, a California Case No.: 19CV340508 12 Charter City D.E. Il RESTAURANTS, INC.’S 13 Plaintiff, OPPOSITION TO PLAINTIFF CITY OF VS. SANTA CLARA’S MOTION TO LIMIT 14 EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE 15 D.E. II RESTAURANTS, INC., a California RECORD corporation; and DOES 1-50, 16 Hon. Peter H. Kirwan Defendants. 17 18 19 D.E. II RESTAURANTS, INC. 20 Date: December 20, 2019 Cross-Complainant, Time: 10:00 a.m. 21 Dept.: 19 VS. 22 CITY OF SANTA CLARA, a California 23 Charter City and ROES 1 through 10, 24 inclusive, 25 Cross-Defendants. 26 27 28 D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD TABLE OF CONTENTS INTRODUCTION IL STATEMENT OF FACTS Ill. LEGAL ANALYSIS 1 Defendants are Entitled to Introduce Evidence Outside the Administrative Record at Trial on Their CCP §1250.360 Objections Right to Take Trials are Full Evidentiary Trials Legislative Decisions to Condemn are Subject to Judicial Review. 10 The Challenge to the Resolution of Necessity iW is Limited to the Administrative Record Except for the Issue of Predetermination 12 5 The Taking Violates the Public Use Requirement 13 13 IV. CONCLUSION 14 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD TABLE OF AUTHORITIES Cases Armendariz v. Penman, (9th Cir.1996) 75 F.3d 1311... 13 Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal. App. 3d 577 8,9 City and County of San Francisco v Ross (1955) 44 C2d 52 13 City of Los Angeles v. Keck (1971) 4 Cal.App.3d 920 10 City of National City v. State of California (1983) 140 Cal. App. 3d 598 ul 12 City of Oakland v Oakland Raiders (1982) 32 C3d 60 13 City of Sunnyvale v. Hinz (2004) 115 Cal-App.4th 1202 5,6,7 14 County of Hawaii v. C & J Coupe (2008, Hawaii Supreme Court) 119 Hawaii 352 15 Cox Cable San Diego, Inc. v. Bookspan (1987) 195 CA3d 22 13 16 Fallbrook Irrigation District v Bradley (1896) 164 U.S. 112 17 18 Franco v. National Capital Revitalization Corp., (District of Columbia, Court of Appeals, 2007) 930 A.2d 160 19 Kelo v. City of New London (2005) 545 US 469 5,6 20 21 Lagiss v. Contra Costa County (1963) 223 Cal.App.2d 77 22 Long Beach Community Redevelopment Agency v. Morgan, (1993) 14 Cal.App. 4th 1047 23 People v. Lagiss (1964) 223 CA.2d 23, 41 24 Redevelopment Agency v Norm's Slauson (1985) 173 Cal.App.3d 1121 7,10 25 San Bernardino County Flood Control Dist. v. Grabowski (1988) 205 Cal.App.3d 885 4,10 26 27 Santa Cruz Redevelopment Agency v Izant (1995) 37 Cal.App.4th 141 1, passim 28 Thompson v. Consolidated Gas Corp. (1937) 300 U.S. 55 13 -ii- D.E. II RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD United States v. 2606.84 Acres of Land (Sth Cir.,1970) 432 F.2d 1286 United States v. 58.16 Acres of Land, (7th Cir., 1993) 475 F.2d 1055 United States v. Carmack (1946) 329 US 230 Other Authorities 10 California Code of Civil Procedure, section 1240.030. 6,7,8 i California Code of Civil Procedure, section 1245.250, 12 13 California Code of Civil Procedure, section 1245.255. 1, 2, 6,7 14 California Code of Civil Procedure, section 1245.270. 11 15 California Code of Civil Procedure, section 1245.270(a) 11 16 California Code of Civil Procedure, section 1245.360(a)-(h). 17 18 California Code of Civil Procedure, section 1250.360 1, 2, 3,4 19 California Code of Civil Procedure, section 1255.410 1,5,9 20 California Code of Federal Regulations, 49, part 24 12 21 California Code of Regulations, 25 section 6000, 6040, 6048 12 22 23 California Constitution at article 1 § 19. 24 California Relocation Act, section 6016 14 25 Government Code section 7267.2... 0.6.60. ccc ce cece ee eeeeeeeeeees 26 27 28 -lii- D.E. II RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD I INTRODUCTION The City of Santa Clara is arguing that the D.E. II RESTAURANTS, INC. is limited solely to the evidence contained in the administrative record in the right to take trial. This precise argument was analyzed and rejected in Santa Cruz Redevelopment Agency v. Izant (1995) 37 Cal.App.4th 141. Jzant makes clear that only the challenge to the resolution of necessity brought pursuant to Code of Civil Procedure section 1245.255 is limited to the administrative record. /zant makes equally clear that for the right to take objections brought pursuant to Code of Civil Procedure section 1250.360 defendant is allowed to introduce evidence. I. STATEMENT OF FACTS 10 David Ebrahimi and his family have been business owners and operators in the City of 1 Santa Clara for the past 45 years. Mr. Ebrahimi has operated David’s Restaurant for 32 years 12 pursuant to a long-term lease with the City of Santa Clara. Based on Mr. Ebrahimi’s excellent 13 track record, 19 years ago, the City entered into a long-term lease for David’s Banquet Facility. 14 With option periods, there are 11 years remaining on the Banquet Facility lease, and every 15 indication the lease would have continued thereafter. The City of Santa Clara made a public announcement on March 9, 2013 regarding the 16 project for which the business is being taken, including all 236 acres and including the removal 17 of D.E. Il RESTAURANTS, INC.’s restaurant, the golf course, fire station, pro shop and tennis 18 courts. 19 D.E. II RESTAURANT’S, INC. is objecting to the right to take on the following 20 grounds: (1) the project fails to satisfy the statutory requirement of providing for the greatest 21 public good with the least private injury and is not for a public use; (2) the project is not even in 22 final design yet, and therefore the resolution is fatally defective as vague; (3) the project will not 23 be completed within seven years of the taking pursuant to California Code of Civil Procedure 24 section 1240.220; (4) the “project” described in the resolution of necessity is pretextual, was 25 predetermined is not consistent with the environmental documents, has not been environmentally studied, fails a CEQA analysis, and thus any action taken is void; (5) the 26 environmental documents do not address, analyze or permit the use of eminent domain; (6) 27 28 1 D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT. EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD Government Code section 7267.2 has not been satisfied; and (7) the City has failed to provide any location for David’s to relocate. TH. LEGAL ANALYSIS 1, Defendants are Entitled to Introduce Evidence Outside the Administrative Record at Trial on their CCP §1250.360 Objections The City has signaled that it believes D.E. II RESTAURANTS, INC. is limited to the administrative record on all of its right to take objects. The City’s exact argument was rejected in Santa Cruz Redevelopment Agency v Izant (1995) 37 Cal.App.4th 141. (“Jzant’”) The holding in Izant definitively states that while property owners are limited to a review of the Agency’s proceeding when the property owners challenge the validity of the resolution of necessity 10 pursuant to California Code of Civil Procedure section 1245.255', property owners are not i limited to a review of the agency’s proceedings or the so-called administrative record on the 12 statutory objections to the right to take set forth in section 1250.360. (/d. at 150-51.) Thus only 13 the challenge to the resolution of necessity which must be brought pursuant to section 1245.255 14 is limited to the administrative record while all affirmative defenses raised pursuant to section 15 1245.360(a)-(h) are entitled to a full evidentiary trial. To understand the /zant holding, it is necessary to examine the difference between. 16 section 1245.255 and section 1250.360. Section 1245.255 provides that a person having an 17 interest in property described in a resolution of necessity may obtain judicial review of the 18 validity of the resolution of necessity. Review is available before the eminent domain action via 19 a writ of mandate pursuant to section 1085 or after the commencement of the eminent domain 20 proceeding by objection to the right to take. The standard of review on a resolution of necessity 21 (which is a quasi-legislative act) is a gross abuse of discretion standard. And in determining 22 whether there was a gross abuse of discretion, the trial court’s review is limited to “a review of 23 the Agency’s proceedings.” (/zant, supra, 37 Cal.App.4th at 150.) 24 However, as the court in Jzant noted, where the challenges to the right to take are not 25 limited to the validity of the adoption of the resolution of necessity, but included defenses raised pursuant to section 1250.360 property owners are “entitled to introduce evidence on these other 26 issues.” (/d. at 151.) The distinction makes sense since the issue of the necessity of the property 27 28 " All code references are to the California Code of Civil Procedure unless indicated. -2- D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD is a legislative function and subject to deferential review. All the other objections are properly the purview of the judiciary and not entitled to deference. Section 1250.360 sets forth the grounds for objecting to the right to take (as opposed to attacking the validity of the adoption of the resolution of necessity) and these grounds apply regardless of whether the condemning agency has adopted a resolution of necessity. Those grounds in relevant part include: (a) Plaintiff is not authorized by statute to exercise the power or eminent domain for the purpose stated in the complaint. () The stated purpose is not a public use. . . . 10 (©) The described property is not subject to the acquisition by the power of eminent domain for the stated purpose. 11 (hy Any other ground provided by law. 12 In Jzant, the property owners raised many of the statutory objections set forth in section 13 1250.360 in their answer, including that “the stated purpose was not a public use, that the 14 primary purpose of the taking was for the private benefit of the bank, and that Agency did not intend to devote the property to the stated purpose.” The court ruled that: 16 7 “Appellants are plainly entitled to a trial on their objections to 18 the right to take, and are entitled to introduce evidence in support of those claims. As the Comments to section 1250.360 19 note, these objections ‘may be raised in any eminent domain proceeding regardless of whether the plaintiff has adopted a 20 resolution of necessity that is given conclusive effect on other 21 issues.” Accordingly, the trial court erred in prohibiting appellants from introducing evidence and therefore the judgment must be 22 reversed.” (/d. at 152. emphasis added.) 23 The City cites to Jzant in an attempt to say that the entire right to take issue must be 24 limited to the administrative record because any challenge to “the validity of the resolution of 25 necessity under section 1245.255 is limited to a review of the agency’s proceedings,” and “[nJo 26 additional evidence may be admitted...” (Id.) But the City mischaracterizes D.E. 27 RESTAURANTS, INC.’s objections as being objections regarding the validity of the RON. 28 With the exception of its challenges to the Resolution of Necessity, DE. RESTAURANTS, 5. D.E. II RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD INC. has asserted its objections pursuant to section 1250.360, for example the violation of the seven year requirement of section 1240.220, for which D.E. RESTAURANTS, INC. is entitled to introduce evidence outside the administrative record pursuant to /zant. 2. Right to Take Trials are Full Evidentiary Trials. The City’s contention that D.E. II RESTAURANTS, INC. is limited to the administrative record on its right to take challenge also fails to recognize the case law which overwhelmingly indicates that defendant is entitled to a full evidentiary trial. The California Supreme Court’s decision in City of Oakland vy Oakland Raiders (1982) 32 C3d 60 (“Oakland Raiders’) specifically addresses the issue as it relates to the issue of public use which is one of the specifically enumerated basis to challenge under section 10 1250.360(b). In that case, the trial court granted a summary judgment motion in favor of the I property owner, concluding that as a matter of law no statutory or charter provision specifically 12 authorized the taking of a professional football franchise and that the operation of such a 13 franchise was not a recognized public use. The Supreme Court reversed and remanded the case, 14 holding that “The City and the Raiders should be afforded a full opportunity before a trial court 15 to present the ‘facts and circumstances’ of their respective sides during a trial on the merits.”” (id. at 76.) The Court further stated, “Our conclusion . . . is reinforced by the long recognized 16 and fundamental importance of the ‘facts and circumstances’ of each case in determining 17 whether a proposed use is a proper public use.” (Jd. citing Fallbrook Irrigation District v 18 Bradley (1896) 164 U.S. 112, 159-160.) 19 Moreover, there are numerous cases that demonstrate that objections to the right to take 20 are to be heard on the merits regardless of whether a resolution of necessity was adopted. In 21 City of Los Angeles v. Keck (1971) 4 Cal.App.3d 920 a trial was conducted on plaintiff's right to 22 take with evidence and testimony admitted even though the condemning agency had adopted a 23 resolution of necessity. In San Bernardino County Flood Control Dist. v. Grabowski (1988) 24 205 Cal.App.3d 885, the Board adopted a resolution of necessity and a “trial was commenced in 25 the action [and the] trial court first heard evidence on [defendant’s] objections to the [condemning agency’s] ‘right to take’ the property....” (/d. at 892.) In Long Beach Community 26 Redevelopment Agency v. Morgan, (1993) 14 Cal.App. 4th 1047, “the first phase of trial on the 27 right to take issue was conducted over three days....” (/d. at 150.) Also, in Jzant, supra, the 28 4. D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD Court of Appeal ruled that the trial court erred in prohibiting the landowner from introducing evidence to support its objections to the right to take and judgment was reversed and remanded for a trial on those issues. (/zant, supra, 37 Cal.App.4th at 152, 153; See also People v. Lagiss (1964) 223 CA.2d 23, 41 [The court’s role is to determine whether the public use stated in the resolution is the real use and requires the court to review the evidence to see what the actual intent of the condemnor is].) Finally, City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202 the trial court granted the condemnor’s motion to exclude evidence of the formation of an assessment district because that defense was barred by statute of limitations: 10 “The court did, however, permit [the owner] to introduce extensive, detailed evidence regarding the history and formation of 11 the district as background because it was relevant to [the owner’s] other defenses. Hinz, supra, 115 Cal.App.4th at 1211. 12 13 The owner in Hinz introduced 49 documentary and video tape exhibits that dealt with 14 the history and formation of the assessment district prior to the adoption of the resolution of necessity authorizing the easement domain action. (/d. at fn. 5.) 15 3 Legislative Decisions to Condemn Are Subject to Judicial Review. 16 It is anticipated that the City is going to argue that the court’s review of Agency actions is 7 strictly limited. This argument is without merit. Legislative discretionary activity on the part of 18 a municipal body is subject to judicial inquiry and interference, even though such body’s 19 determinations and proceedings are proper on their face, if such body exceeds its legislative 20 powers or if its judgment or discretion is fraudulently or corruptly exercised or its actions are 21 tainted by fraud or bad faith. (Lagiss v. Contra Costa County (1963) 223 Cal.App.2d 77, 92-93 22 (and cases cited therein); see also United States v. 58.16 Acres of Land, (7th Cir., 1993) 475 23 F.2d 1055, 1058-1059 and United States v. 2606.84 Acres of Land (Sth Cir.,1970) 432 F.2d 24 1286, 1290. [Error for the court not to consider whether the agency acted arbitrarily and capriciously, or in bad faith in deciding to condemn.] 25 The United States Supreme Court has specifically stated that the power to condemn is 26 subject to review to determine if the designated officials have acted in bad faith or arbitrarily or 27 capriciously. (United States v. Carmack (1946) 329 US 230, 243.) Moreover, in Kelo v. City of 28 New London (2005) 545 US 469 (“Kelo”), the Court noted that there may be situations where a 5. D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT. EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD court should not take at face value what the legislature has said. (Jd. at 478 [Kelo court specifically noted that this is not a condemnation case where there is evidence of illegitimate purpose.]) Thus, judicial review is warranted where bad faith is alleged since the “government will rarely acknowledge that is acting for a forbidden reason, so a property owner must in some circumstances be allowed to allege and demonstrate that the stated public purpose for the condemnation is pretextual.” Franco v. National Capital Revitalization Corp., (District of Columbia, Court of Appeals, 2007) 930 A.2d 160, 169 relying on Kelo supra; See also, County of Hawaii v. C & J Coupe (2008, Hawaii Supreme Court) 119 Hawaii 352, 375 [Kelo opinion permits the courts to look beyond a condemnor’s asserted public purpose in certain 10 circumstances].) 11 4. The Challenge to the Resolution of Necessity is Limited to the 12 Administrative Record Except for the Issue of Predetermination. 13 As a condition precedent to the exercise of the power of eminent domain, a public 14 agency must hold a public hearing to determine whether a particular taking meets the criteria of 15 public necessity as set forth in section 1240.030. (Santa Cruz County Redevelopment Agency v Izant (1995) 37 CA4th 141, 148.) The three findings of necessity set forth in section 1240.030 16 are: (1) the public interest and necessity require the project; (2) the project is planned or located 7 in the manner that will be most compatible with the greatest public good and the least private 18 injury; and (3) the property sought to be acquired is necessary for the project. 19 Generally, the trial court’s review of the validity of the adoption of the resolution of 20 necessity under section 1245.255 is limited to a review of the agency’s proceedings or what is 21 commonly referred to as the “administrative record.” 22 Pursuant to section 1245.250, a resolution of necessity adopted by the governing body of 23 the public entity conclusively establishes the three criteria set forth in section 1240.030. 24 However, a resolution of necessity will not have a conclusive effect as to these three criteria "to 25 the extent that its adoption or contents were influenced or affected by a gross abuse of discretion by the governing body." (Code of Civil Procedure section 1245.255(b).) 26 In Hinz, supra, the Court noted that a gross abuse of discretion may be shown in two 27 ways. One way is a lack of substantial evidence supporting the resolution of necessity. The 28 ~6- D.E. II RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD. other way is to show that at the time of the agency hearing the condemnor had effectively pre- committed itself to taking the property regardless of the evidence presented. (/d. at p. 1221) The owner in Hinz objected to the resolution on each of these separate grounds. (Id.) The appellate court (and possibly the trial court) in Hinz went on to analyze each abuse of discretion claim separately (Compare Section 2 (p. 1222-1225) of the Hinz opinion considering the lack of substantial evidence in the record objection to Section 3 (p. 1226-1227) of the opinion addressing objection based on pre-commitment.) Like the owner in Hinz, D.E. II RESTAURANTS, INC. has objected to the resolution of necessity on both grounds. Defendant’s Second Objection addresses the lack of substantial evidence in the record while Defendant’s Fourth Objection is that prior to the adoption of the 10 resolution of necessity, the Agency Board had predetermined that it was going to condemn the 11 subject property and had through its arrangements with Related Santa Clara, LLC (Related) 12 irreversibly committed itself to doing so. (Redevelopment Agency v Norm's Slauson (1985) 173 13 Cal.App.3d 1121, 1127.) Thus, defendant contends that it is limited to the administrative record 14 on its Second Objection but not the Fourth Objection alleging predetermination in its allegation 15 that the RON was merely pretextual. In Ordinance No. 1956 the City entered into a development agreement with Related to perform the City Place Santa Clara Project, the project 16 for which D.E. II’s property is being taken. Ordinance No. 1956 is dated June 22, 2016. The 17 RON is dated December 11, 2018. So the City entered into an agreement to construct the 18 project over two years before drafting the RON. The development agreement pre-committed 19 the City to the Project before the RON was completed. 20 In Norm’s Slauson, prior to the adoption of the resolution of necessity, the 21 Redevelopment Agency entered into a contract with a third-party developer by which the 22 Agency agreed to acquire the property for transfer to the developer for a condominium project. 23 The court held that in so doing, the City had impermissibly precommitted itself to condemning 24 the property and that the resolution of necessity was thus a sham, which was not entitled to its 25 usual conclusive effect. As such, the Court held the Agency had the burden of proving that the proposed condemnation satisfied the basic requirements of Code of Civil Procedure section 26 27 28 7- D.E. II RESTAURANTS, INC."S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD 1240.030° which it failed to do. Thus, the court ruled that the Agency had no right to condemn the subject property. The City is not able to break up this Master Plan into smaller phases and avoid the fact that this is one Master Plan. The scope of a project is defined by the environmental documents. California law defined the “project” by the specific plans and environmental documents. In City of National City v. State of California (1983) 140 Cal. App. 3d 598, the court defined a project. In footnote 2 on page 603, the National City court stated: In determining what is a project within CEQA, California Administrative Code, title 14, section 15378 provides: (a) Project means the whole of an action, which has a potential for 10 resulting in a physical change in the environment, directly or 11 ultimately, that is any of the following: 12 (1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities,.’ 13 More specifically, subdivision (c) states: 14 The term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by 15 governmental agencies. The term 'project' does not mean each separate governmental approval." (Emphasis added & some 16 internal quotes omitted) 7 Although the National City case was decided within the context of an unsuccessful 18 attempt by the city to compel the State of California to go forward with the project as defined, 19 its rule concerning the description of the project has been applied since in a condemnation case. 20 In Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal. App. 3d 577 the 21 court considered an order by the trial court dismissing the condemnation action because the 22 plaintiff's EIR did not properly describe the project so as to include the D.E. II 23 RESTAURANTS, INC.'s real property. The trial court's order was affirmed. The Hensler court 24 stated (p. 592, emphasis added): 25 26 ? Code of Civil Procedure §1240.030 provides that the power of eminent domain may only be exercised if (a) the public interest and necessity require the project, (b) the project is planned or located in the manner that will be mos' 27 compatible with the greatest public good and least private injury; and (c) the property sought to be acquired ig necessary for the project. 28 8 D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD CEQA mandates that environmental considerations not become submerged by chopping a large project into many little ones, each with a potential impact on the environment, which cumulatively may have disastrous consequences. (City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1452 [263 Cal.Rptr. 340].) CEQA attempts to avoid this result by defining the term "project" broadly. (Ibid.) A project under CEQA is the whole of an action which has a potential for resulting in a physical change in the environment, directly or ultimately, and includes the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. (McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1143 [249 Cal.Rptr. 439].)" (Emphasis added.) 10 The Hensler court continued (p. 592, emphasis added): i An accurate, stable and finite project description is the sine qua 12 non of an informative and legally sufficient EIR; the defined project and not some different project must be the EIR's bona fide 13 subject. (Mira Monte Homeowners Assn. v. County of Ventura 14 (1985) 165 Cal.App.3d 357, 365 [212 Cal.Rptr. 127].) 'CEQA compels an interactive process of assessment of environmental 15 impacts and responsive project modification which must be genuine. It must be open to the public, premised upon a full and 16 meaningful disclosure of the scope, purposes, and effect of a 17 consistently described project, with flexibility to respond to unforeseen insights that emerge from the process. (Id., at p. 366, 18 internal quotation marks omitted.) 19 After concluding that the project description in the EIR did not correctly describe the 20 project so as to include the Hensler’s property which was being condemned, the court stated (p. 594): 22 Accordingly, the procedure followed by appellant violated section 23 15004, subdivision (b)(1) of title 14 of the California Code of Regulations (hereinafter referred to as Guidelines), which provides 24 that "With public projects, at the earliest feasible time, project 25 sponsors shall incorporate environmental considerations into project conceptualization, design, and planning. CEQA 26 compliance should be completed prior to acquisition of a site for a public project. 27 28 -9- D.E. 11 RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT. EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD Thus, the “project” is defined by the specific plan and environmental documents and cannot “become submerged by chopping a large project into smaller ones, each with a potential impact on the environment, which cumulatively may have disastrous consequences.” In fact, The City of Santa Clara responded to David's request for public records concerning the proposed road by referring to the June 28, 2016 Council agenda (item 14) on the subject of the Master Development Plan. The November 5, 2018 letter from the City Manager regarding the December 11 meeting states in its first paragraph that the City is "considering constructing a road." Thus, no final decision to construct the road has been made. Such action would require environmental review which has not occurred. Furthermore, the law does not permit the local legislative body to approve a road under an agenda item that only refers to the matter of taking 10 away the Banquet Hall. I Here, this means that the RON Notice referring to this Project as a mere road relocation 12 project is again pretextual and is in fact a part of the Master Plan discussed herein. Neither the 13 Master Plan nor the realigned road have been finalized or vetted through the environmental 14 process. The real Project is not to be completed within seven years of this action by the City. 15 No reported California case has directly ruled on the issue of admission of evidence to prove predetermination. However, logic and fundamental principles of fairness dictate that D.E. 16 II RESTAURANTS, INC. would not be limited to the administrative record on the issue of 17 predetermination at time of trial. Since an abuse of discretion can be proven by showing 18 predetermination this objection cannot logically be limited to the City’s record. By its very 19 definition predetermination requires that all of the facts and circumstances leading up to the 20 decision to condemn must be reviewed to determine if the City had effectively precluded any 21 option except taking the D.E.II RESTAURANTS, INC. Property. It would be impossible for 22 Defendant to prove that the RON is void because it is breaking up one Master Plan into smaller 23 Phases without looking to evidence outside the administrative record. 24 Moreover, a review of facts contained in Norm's Slauson indicates that evidence outside 25 the record is appropriate. “[T]he trial court, on the basis of uncontroverted evidence concerning the chronology which led to the hearing on the resolution of necessity, found that the resolution 26 was affected by a gross abuse of discretion.” (Norm's Slauson, supra, 173 Cal.App.3d at 1128 — 27 28 -10- D.E. Il RESTAURANTS, INC.’ OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD 1129.) As indicated earlier the gross abuse of discretion in Norm’s Slauson was the predetermination conduct. In San Bernardino County Flood Control District v. Grabowski (1988) 205 Cal.App.3d 885, the owner challenged the resolution of necessity for an abuse of discretion for various reasons including bribery pursuant to section 1245.270. Section 1245.270(a) requires the owner to prove its bribery accusation by a preponderance of the evidence standard. The trial court in Grabowski “...enjoyed the luxury of being able to actually weigh the credibility of the witnesses as they testified on the conflict-of-interest issue.” (Grabowski, supra, 205 Cal.App.3d at 849, fn. 3.) This is a logical result since evidence of bribery, like predetermination, would not be found in the record unless there is an extremely stupid 10 condemning agency. Accordingly, defendant should be permitted to introduce evidence to 11 establish that the City had effectively precluded its ability to exercise its discretion by its actions 12 leading up to the adoption not the Resolution of Necessity. 13 The Project will not be completed until 2035 and there is no evidence that this first 14 phase needs to occur today. The Master Community Plan of April 5, 2017 states that there are 15 seven phases to this project with a completion date in 2035 and indicates throughout that every design is preliminary. To date there is no final plan for the development. 16 The map, which is at the heart of this RON Hearing is not consistent with the Master 17 Community Plan of April 5, 2017. Exhibit 3-1 to the Master Community Plan is not consistent 18 with the construction drawings submitted to David’s in support of the RON Hearing. The roads 19 are not aligned the same way. Thus, the RON Hearing drawing has not been vetted through any 20 environmental review process and has not been approved by the City. Given the current layout 21 of the road as shown in the RON, there is no public necessity for this project at this time 22 because it does not assist in transportation in any way as designed for this RON. 23 The Master Community Plan’s environmental review was approved at the REGULAR 24 CONCURRENT MEETING OF THE CITY OF SANTA CLARA CITY COUNCIL SANTA 25 CLARA STADIUM AUTHORITY SPORTS AND OPEN SPACE AUTHORITY CITY OF SANTA CLARA HOUSING AUTHORITY TUESDAY, JUNE 28, 2016. The agenda item 26 was for the CityPlace Santa Clara Project located at 5155 Stars and Stripes Drive, et. al., on an 27 approximately 240 acre site. (APNs: 104-03-036, 104-03-037, 104-03-038, 104-03-039, 104- 28 ole D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD 001-102, 097-01-039 and 097-01-073)[PLN2014-10554, CEQ2014-01180, SCH#2014072078]. The Council adopted Resolution No. 16-8337 entitled “A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA APPROVING AND CERTIFYING A FINAL ENVIRONMENTAL IMPACT REPORT, ADOPTING CEQA FINDINGS WITH RESPECT THERETO, AND ADOPTING A STATEMENT OF OVERRIDING CONSIDERATIONS AND A MITIGATION MONITORING AND REPORTING PROGRAM FOR THE CITY PLACE SANTA CLARA PROJECT LOCATED AT 5155 STARS AND STRIPES DRIVE, ET AL, SANTA CLARA” approving and certifying an Environmental Impact Report and adopting California Environmental Quality Act (CEQA) Findings, a Statement of Overriding Considerations (SOC) and the Mitigation Monitoring and Reporting 10 Program (MMRP) with an amendment to paragraph 7 indicating that Exhibit 1 to the V1 Resolution, the MMRP, shall be amended to reflect that the Montague/Zanker intersection lies 12 within the City of San Jose jurisdiction rather than the County of Santa Clara jurisdiction with 13 the corresponding fair share funds being reallocated to the City of San Jose thus increasing the 14 City of San Jose share and decreasing the County of Santa Clara share of the fair share fee. 15 Thus, the only environmental approval was for the entire 240-acre Plan. Among the significant effects on the environment would be the elimination of buildings and services and 16 the re-routing of traffic in the area during construction and thereafter. These effects need to be 17 evaluated under CEQA. There has not been any CEQA review of a smaller project such as the 18 one shown on the RON construction plan. 19 No environmental document has addressed the use of eminent domain as against any 20 property rights The only reference is in the Master Community Plan of April 5, 2017 which 21 states: 22 The acquisition process approved by this Council is addressed in Chapter 8, Infrastructure Overview. Section 8.1 includes a section 23 entitled “Property Acquisition, Dedication & Easements Concept” 24 and states that the majority of the infrastructure shall be constructed within the public right-of-way or dedicated easements. 25 There is no mention of the use of eminent domain to take private property rights from any business or individual. This section also 26 again states that the project layout is merely proposed and not final 27 by stating “[t]he eventual project layout within the project boundaries will ultimately determine the entity that owns, operates 28 and maintains each infrastructure element.” -12- D.E. II RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT. EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD The Preliminary Infrastructure Master Plan dated August 5, 2016, Section 1.2 states: 1.2 Property Acquisition, Dedication and Easements The Mapping, property acquisition, dedication and acceptance of streets and other infrastructure improvements will occur through the Subdivision Map process in accordance with the City’s Subdivision Code and Regulations. Except as otherwise noted, all infrastructure described in this Plan shall be constructed within the public right-of-way or dedicated easements to provide for access and maintenance of infrastructure facilities. The eventual project layout within the Project boundaries will ultimately determine the entity that owns, operates and maintains each infrastructure element. City Resolutions to address the private infrastructure 10 elements and specific public utility easements will be allowed within the Project as may be necessary to service the development. 11 Utilities in these areas will be installed in accordance with the standards in this Plan and applicable City Regulations for public 12 acquisition and acceptance within public utility easement areas, 13 including provisions for maintenance access. 14 Nowhere in the document does it then go on to specifically note any property 15 acquisition. David’s has a property right in its lease which is not discussed in any 16 environmental document. 17 Finally, and perhaps most importantly, the appraisal is not even signed by an appraiser. 18 The offer and appraisal is only signed by the City Manager. The appraisal is therefore void. It cannot form the basis of a proper appraisal as required by law when it is not signed by an 19 appraiser. 20 5. The Taking Violates the Public Use Requirement. 21 The power to take property is strictly limited. An individual or entity may exercise the power of 22 eminent domain, only if the taking is for a public use and only if a statute specifically grants the 23 individual or entity the power of eminent domain. CCP §1240.010; Cox Cable San Diego, Inc. 24 v. Bookspan (1987) 195 CA3d 22, 27. This is in keeping with the "public use" provision of the 25 Takings Clause contained in the Fifth Amendment of the U.S. Constitution and the California 26 Constitution, Art. 1 §19. The wording of both documents requires that any taking of private 27 property must be for a “public use”. The "public use" requirement is an explicit limit on the 28 power of government to take private property. The Supreme Court has long recognized, a -13- D.E. Il RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD taking, even if justly compensated, must serve a legitimate public purpose. See Thompson v. Consolidated Gas Corp. (1937) 300 U.S. 55, 80. The “Constitution does not contemplate that the exercise of the power of eminent domain shall secure to private activities the means to carry on a private business whose primary objective and purpose is private gain and not public need.” City and County of San Francisco v Ross (1955) 44 C2d 52, 59. Thus, a taking for a purely private use is unconstitutional no matter the amount of just compensation that may be given. Thompson, supra 300 US at 80; Armendariz v. Penman, (9th Cir.1996) 75 F.3d 1311, 1320. The proposed taking violates the “public use” provision of the takings clause contained in the Fifth Amendment of the U.S. Constitution and Art. 1, §19 of the California Constitution as the take is not for a public purpose but rather merely transfers privately held properties to 10 another private individual, to wit, Related Santa Clara. The Resolutions of Necessity define the i public use as “however the true use is the private 240-acre redevelopment project called Related 12 Santa Clara. The City is not authorized by statute to exercise the power of eminent domain for 13 the purpose specified in the Resolutions of Necessity. 14 Iv. CONCLUSION 15 Only defendant’s second, fourth, and fifth objections are limited to the administrative record. The City’s contention that all of D.E. RESTAURANT’S, INC.’s right to take objections 16 are limited to the administrative record is legally unsupportable. The Izant decision found this 17 exact argument to be erroneous. To follow the City’s reasoning is reversible error. 18 19 20 DATED: December _\\ , 2019 JENNY & JENNY. LLP 21 22 B 23 " SCOTT E. JENNY, ESQ. Attorney for Defendant 24 D.E. II RESTAURANTS, INC. 25 26 27 28 -14- D.E. II RESTAURANTS, INC.’S OPPOSITION TO PLAINTIFF CITY OF SANTA CLARA’S MOTION TO LIMIT. EVIDENCE AT RIGHT TO TAKE TRIAL TO THE CERTIFIED ADMINISTRATIVE RECORD