(Monterey County Super. Ct. No. M82091) Trial Judge: Honorable Robert A. O'Farrell.
The opinion of the court was delivered by: McAdams, J.
CERTIFIED FOR PUBLICATION
This appeal concerns the validity of the appellants' redevelopment plan, adopted by ordinance in July 2006. The trial court invalidated the ordinance, concluding that the necessary findings of blight were not supported by substantial evidence in the administrative record. Having independently reviewed the record, we reach the same conclusion. We shall therefore affirm.
The appellants are the City of Glendora, the City Council of the City of Glendora, and the Glendora Redevelopment Agency (collectively, Glendora). The respondent here is the County of Los Angeles (the County).
This case involves the Community Redevelopment Law (CRL). (Health & Saf. Code, § 33000 et seq.)*fn1
"The California Redevelopment Act was enacted in 1945 to address problems of urban blight." (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1131 (Evans).) "Redevelopment agencies are authorized to combat blight using three extraordinary powers - the diversion of property taxes that otherwise would have gone to the state or other government entities; the use of public funds to subsidize private enterprise; and the power of eminent domain." (Neilson v. City of California City (2007) 146 Cal.App.4th 633, 642 (Neilson).)
"A finding that a project area is blighted is the absolute prerequisite for redevelopment." (Evans, supra, 128 Cal.App.4th at p. 1146, citing Sweetwater Valley Civic Assn. v. City of National City (1976) 18 Cal.3d 270, 277.) "The physical and economic conditions demonstrating the existence of blight are set forth in sections 33030 and 33031." (County of Riverside v. City of Murrieta (1998) 65 Cal.App.4th 616, 624 (Riverside).) "In summary, an area is blighted, and hence eligible for redevelopment, if it is predominantly urban and if it is adversely affected by economic and physical conditions too serious to be cured by private or governmental enterprise, thus necessitating redevelopment." (Id. at pp. 624-625.)
"This required finding of blight is subject to judicial review in a validation action [citation], and if there is insufficient evidence that the area is indeed blighted, the court must issue a judgment invalidating the redevelopment plan." (Boelts v. City of Lake Forest (2005) 127 Cal.App.4th 116, 120 (Boelts).)
II. Glendora's Redevelopment Plan
Over the years, Glendora has adopted redevelopment plans for five project areas; four are at issue here. Project Area 1 was established in 1974, followed by Project Areas 2 and 3 in 1976. Project Area 4, which was established in 1982, "is no longer operational" and is not at issue in this case. Project Area 5 was created in 2006, by adoption of the ordinance challenged here.
In July 2006, Glendora adopted Ordinance No. 1845, which approved the "Redevelopment Plan for the Merged Glendora Redevelopment Project," called the "Merged Redevelopment Plan" for short. The Merged Redevelopment Plan (1) amended the redevelopment plans for existing Project Areas 1, 2, and 3; (2) created a new Project Area 5; and (3) merged Project Areas 1, 2, 3, and 5 "for financing purposes" under the Community Redevelopment Law and "to extend the period during which the power of eminent domain is available to" Glendora's redevelopment agency.
Ordinance No. 1845 incorporates findings that blight exists in Project Area 5 and remains in Project Areas 1, 2, and 3. It also includes this finding: "The elimination of the remaining blight and the continuation of the redevelopment of the Merged Project Area would not reasonably be expected to be accomplished by private enterprise alone without the aid and assistance of the Agency."
III. Proceedings in the Trial Court
In September 2006, the County filed this reverse validation action in Los Angeles County Superior Court. (§ 33501, subd. (a); Code Civ. Proc., § 860 et seq.; see McLeod v. Vista Unified School Dist. (2008) 158 Cal.App.4th 1156, 1166.) The complaint challenged "the approval and adoption of the Redevelopment Plan for the Merged Glendora Redevelopment Project adopted by Ordinance No. 1845, on July 18, 2006."
In its complaint, the County alleged violations of the Community Redevelopment Law. The County also asserted the lack of sufficient evidence for the blight findings made by Glendora in adopting Ordinance No. 1845. The County sought a declaration that the ordinance was invalid.
In October 2006, Glendora answered the complaint, denying the County's substantive allegations and interposing twenty affirmative defenses.
In December 2006, venue was transferred to Monterey County.
C. Record; Briefs; Hearing
In June 2007, the administrative record was certified and lodged with the court. Thereafter, by stipulation, three supplemental volumes of administrative record were lodged. As supplemented, the entire administrative record was received in evidence.
Pursuant to a stipulated schedule, the County submitted an opening trial brief, Glendora filed opposition, and the County replied. In December 2007, the court conducted a hearing. At the conclusion of the hearing, the court took the matter under submission.
In February 2008, the trial court filed a 62-page statement of decision. In its statement of decision, the court first addressed the issue of tax increment caps on the existing project areas.*fn2 The court considered the County's arguments, advanced as questions of law, that Glendora could not (1) amend the tax increment limits for its first two redevelopment projects or (2) merge and combine the separate tax increment caps of its first three projects into a single limit. The court rejected both contentions.
The court next considered the sufficiency of Glendora's blight showing. The court exhaustively discussed the evidence of blight, first in Project Area 3, then in Project Area 5, and then in the Merged Project Area, which includes Project Areas 1 and 2. After extensive discussion, the court ultimately determined that "Glendora's findings of blight are not supported by substantial evidence" in the administrative record. Furthermore, the court concluded, given the absence of blight, "Glendora is without eminent domain authority in this instance."
Based on its determination that the administrative record contains insufficient evidence of blight, the court invalidated Ordinance No. 1845.
In April 2008, judgment was entered. Consistent with the court's statement of decision, the judgment declares Ordinance No. 1845 "null, void ab initio, and invalid in all respects."
In May 2008, Glendora brought this appeal. The County did not cross-appeal. The record consists of 29 volumes of appellant's appendix, comprising nearly 6,800 pages.
In its opening brief, Glendora defends its approval of the redevelopment plan as legal and proper. More specifically, Glendora argues, substantial evidence supports the creation of Project Area 5 and the amendments to Project Areas 1, 2, and 3, as well as the reestablishment of the power of eminent domain.
In its respondent's brief, the County disputes Glendora's arguments. Further, pressing its own claims of error, the County asserts that the trial court erred in recognizing Glendora's authority to amend and merge the tax increment caps for its earlier redevelopment projects.
In its reply brief, Glendora discusses several points. First, Glendora reasserts that its redevelopment plan is supported by substantial evidence in the administrative record. As part of that discussion, Glendora cites the post-judgment enactment of section 33333.13, which includes a legislative finding that the redevelopment plan for Project Area 3 "contains an unrealistically low dollar limit on the receipt of tax increment" that "severely restricts" Glendora's ability "to address conditions of blight which remain within its Project Area No. 3." (§ 33333.13, subd. (a).) Additionally, Glendora's reply brief also addresses the County's assertions of error concerning the tax increment caps.
In addition to their appellate briefs, the parties submitted a number of other documents in this court, most of them relating to section 33333.13. The County asks this court to take judicial notice of 10 documents reflecting the legislative history of that section.*fn3 The County also requests permission to file supplemental briefing on the validity of section 33333.13, attaching a proposed brief. Glendora opposes that briefing on the merits, supported by its own request for judicial notice of four documents.*fn4
We requested and received further briefing on questions germane to the scope of this appeal.*fn5
At the threshold, we discuss the scope of our review. As we explain, (I) the County's claims of error are not cognizable, and (II) section 33333.13 has no application here.
"As a general matter, 'a respondent who has not appealed from the judgment may not urge error on appeal.' " (Estate of Powell (2000) 83 Cal.App.4th 1434, 1439; accord, Townsend v. Townsend (2009) 171 Cal.App.4th 389, 398.)
"A limited exception to this rule is provided by Code of Civil Procedure section 906, which provides in pertinent part: 'The respondent . . . may, without appealing from the judgment, request the reviewing court to and it may review any of the foregoing [described orders or rulings] for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken.' (Emphasis added.)" (California State Employees' Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7; Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1138.) But the statute does "not authorize the reviewing court to review any decision or order from which an appeal might have been taken." (Code Civ. Proc., § 906.)
"The purpose of the statutory exception is to allow a respondent to assert a legal theory which may result in affirmance of the judgment." (California State Employees' Assn. v. State Personnel Bd., supra, 178 Cal.App.3d at p. 382, fn. 7; Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48, 57; Central Mfg. Dist., Inc. v. Board of Sup'rs of Los Angeles County (1960) 176 Cal.App.2d 850, 857.) The County casts its challenges to the trial court's tax increment rulings in this mold, arguing that they are additional theories supporting affirmance of the judgment. As the County acknowledges, however, when the reviewing court "would affirm independent of the additional legal theories" offered by a respondent, the respondent's claims are "generally not reviewable." That is the situation here.
In this case, we can and do decide the appeal based solely on the issues raised by Glendora. For that reason, we need not and do not consider the County's additional theories for invalidating Ordinance No. 1845.
II. Subsequent Legislation
Section 33333.13 became law in February 2009.*fn6 That legislation thus post-dates Glendora's 2006 actions, challenged by the County in the trial court, and the trial court's 2008 decision, challenged by Glendora in this appeal.
The parties disagree about whether section 33333.13 applies in this proceeding. Glendora urges its consideration here, asserting that "the Legislature has now determined that Project Area No. 3 is blighted and entitled to an increased tax increment." The County disputes the provision's applicability.
A. Applicability to Legal Issues
To the extent that the legislative amendment concerns the County's tax increment arguments, there is no reason for us to consider it in this appeal. As just explained, those arguments are not before us. (Estate of Powell, supra, 83 Cal.App.4th at ...