Superior Court of Alameda County, No. RG11575462, Evelio M. Grillo, Judge. Super. Ct. No. RG 11575462)
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Golden Gate Land Holdings LLC (Golden Gate) owns 140 acres of land straddling the border of Albany and Berkeley, on the east shore of San Francisco Bay. The site includes the Golden Gate Fields racetrack. The East Bay Regional Park District (the District) approved a resolution of necessity to condemn eight shoreline acres of Golden Gate's property to help complete the Eastshore State Park (Eastshore Park), and to construct a segment of the San Francisco Bay Trail (the Bay Trail). The District concluded that the project was exempt from the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.)*fn2 and posted a notice of exemption. Golden Gate petitioned the superior court for a writ of mandate seeking to vacate the District's resolution of necessity, arguing that CEQA required preparation of an environmental impact report (EIR) and that the District had violated eminent domain law.
The trial court granted the petition, but declined to direct the District to set aside its approval of the resolution of necessity. The court instead ordered the District to vacate only its CEQA exemption finding, permitting the District to leave its resolution of necessity intact and proceed with its condemnation action. Golden Gate appeals, arguing that the remedy granted by the trial court improperly allows the District to conduct after-the-fact environmental review of an already approved project. In the published portion of this opinion we address the CEQA issues, and we affirm the judgment.
I. FACTUALand PROCEDURALBACKGROUND
The District is a regional park district formed and existing pursuant to section 5500 et seq. It is charged with developing and operating public parks in Alameda and Contra Costa counties. (See § 5541.)*fn3 It also has the authority to develop recreational trails and acquire land for such purposes. (§ 5541.1.)*fn4 The District is empowered to exercise the right of eminent domain "to take any property necessary or convenient to accomplish [such] purposes . . . ." (§ 5542; see also § 5540.)
In 1992, the Legislature enacted section 5003.03, which provides, in relevant part: "(a) It is the intent of the Legislature, in enacting this section, to provide for the acquisition, planning, and operation of a state park project located on the east shore of the San Francisco Bay. The state park project shall consist of a contiguous shoreline park and bay trail along the east shore of the San Francisco Bay from the Bay Bridge to the Marina Bay Trail in Richmond, serving as a recreational facility within its natural setting developed in concert with a public planning process agreeable to the state and [the District]. [¶] . . . [¶] (c) For the purpose of the acquisition, planning, and development of the shoreline park, the district shall act as agent for the state and, as the state's agent, shall have the authority to exercise all of the district's powers for the purposes of acquiring, planning, and developing the shoreline park. The district shall be reimbursed by the state for any direct costs that the district incurs in carrying out these activities, upon appropriation therefor by the Legislature. By appointing the district as agent for the state, it is the intent of the Legislature to direct the state and the district to act in an expeditious manner towards the acquisition, planning, and development of the shoreline park." (Italics added.)
The Bay Trail is part of this effort. It is a planned 400-mile recreational corridor intended to ultimately encircle the San Francisco and San Pablo bays, linking nine counties and 47 cities, and providing a continuous network of bicycling and hiking trails along the shoreline. The District has long planned to extend the more than 270 miles of trail already completed. The District is also working to fully establish and develop the Eastshore Park. To that end, the state and the District cooperated in preparing the "Eastshore State Park General Plan." Acting as an agent for the state, the District has acquired and operates lands to the south and north of Golden Gate Fields. Eastshore Park currently consists of open space, walking paths, and pedestrian and bicycle trails (including the Bay Trail).
In 2003, the prior owner of Golden Gate Fields entered into a license agreement with the District allowing the public to use the property for recreational purposes. The license has since expired and has not been extended. Since then, Golden Gate has informally allowed the general public to use its property to bridge the existing gap in the Bay Trail. However, the public is exposed to dangerous traffic conditions in the Golden Gate Fields' customer parking lot, and along the main access road to the racetrack.
In 2006, in connection with the District's attempt to negotiate a voluntary acquisition of a portion of Golden Gate's property, the District contracted with Questa Engineering Corporation to prepare engineering plans and assist with preconstruction work. The concept plans, which were initially completed in 2006 and revised in 2007 and 2008, set forth three alternatives. The District obtained a cost estimate for its preferred trail design, which included demolition, installation of new retaining walls and fences, excavation, pavement restoration, installation of new pavement, and drainage improvements. However, Golden Gate refused to enter into a long-term license agreement.
In 2009, with no voluntary acquisition feasible, the District began preparing legal descriptions and plat maps for appraisal and potential condemnation proceedings. The District offered Golden Gate approximately $1,686,000 to acquire the property rights.
After the offer was not accepted, the District's Board of Directors
(Board) noticed a public hearing, for April 5, 2011, to consider a
resolution of necessity to authorize eminent domain proceedings.*fn5
At the Board meeting, Assistant District Manager Nancy
Wenninger explained: "So, we spent quite a bit of time with engineers
looking at how we could make [the Bay Trail] safe, how we could avoid
conflicts with the racetrack. Everything we looked at, at first,
involved the racetrack losing a lane for their traffic. And that was
not just workable for them. So, we finally settled upon this latest
strategy, which is to keep the trail outboard and run it along the
shoreline all the way . . . . [¶] . . . [¶] . . . We believe it is the
best alignment for us to have. . . . And so, in order to be able to
spend money to construct a . . . trail, we need land tenure. . . . [¶]
. . . [¶] The design, which is still preliminary, basically, puts the
trail outboard of the existing road. So it would be along the
shoreline, between the shoreline and the road. It would not follow
that old road which currently exists. It will require some
reconfiguration of the entry into the Golden Gate Fields property.
They will put the trail on the outside, so there will be no point in
time at which trail users have to cross through the racetrack
[traffic], all along the shoreline all the way. This will be a
typical Class I trail, 12 feet wide and at least two-foot shoulders on
The District's staff also issued a report that states: "The District commissioned a feasibility study to determine the best alignment for the Bay Trail segment. A number of alternatives were considered. The alignment selected is physically separated from the racetrack traffic and will provide the safest, most scenic trail experience. It has also been designed with a grade which complies with the Americans with Disabilities Act." The report also states: "The proposed project is exempt from [CEQA] pursuant to CEQA Guidelines, Section 15325."*fn6
Golden Gate objected to the proposed resolution. It asserted that the project was not exempt from CEQA and, thus, the District could not approve the project until after it reviewed and considered the environmental effects of trail construction and other improvements. Golden Gate also maintained that public necessity did not require condemnation because the public already had access to the property for recreational purposes, and because the least private injury and environmental harm would be achieved by planning this segment of the Bay Trail in conjunction with anticipated redevelopment of the property, which would also incur less public expense.
The District nonetheless approved the resolution of necessity, which was memorialized in Resolution No. 2011-4-079. The resolution provides: "[The District] wishes to acquire certain real property rights described herein below for District use by the exercise of the power of eminent domain. [¶] . . . The acquisition of such rights is required to help to complete [Eastshore Park] and provide the opportunity to construct an important segment of the . . . Bay Trail. In addition, the acquisition will protect important natural resources and the visual integrity of the existing park. . . . [¶] . . . [¶] The said real property rights are to be acquired for purposes of preservation of open space, habitat and natural conditions, pursuant to the authority granted in California Constitution, Article I, Section 19; . . . Sections 5540, 5541, 5541.1 and 5542; Title 7, Part 3 of the Code of Civil Procedure; and other provisions of law[.] [¶] . . . The public interest and necessity require the real property rights sought to be acquired[.] [¶] . . . The project is planned and located in the manner which will be most compatible with the greatest public good and the least private injury[.] [¶] . . . The real property rights described herein are necessary for the project[.]"
The property described in the resolution includes: (1) an area, totaling approximately 2.88 acres, which was to be taken in fee title; and (2) "[a 4.88 acre] perpetual, non-exclusive easement . . . in order to construct, operate, and maintain a recreational trail . . . to be used by the general public for hiking, bicycling and equestrian use and other related uses." The District authorized its special counsel to prosecute the proceedings necessary and to acquire, in the District's name, the subject property by condemnation in accordance with the provisions of eminent domain law. The Board also directed staff to file a notice of exemption.
Two days later, the District posted a notice of exemption under CEQA stating that the District "has approved this project and found it to be exempt from [CEQA]," citing, inter alia, section 15325 of the Guidelines. Specifically, the notice of exemption provided: "The subject parcels are being acquired for the purpose of open space protection and future public access. The parcels total approximately 7.76 acres. [¶] . . . [¶] Reasons why project is exempt from CEQA: This project consists of the acquisition of land in order to protect open space and to secure future public access to [Eastshore Park] and the . . . Bay Trail. Any development of this property and land use changes would be subject to future CEQA review."
On May 12, 2011, Golden Gate filed a petition for writ of mandate and complaint for injunctive relief, asserting that the District had violated CEQA and the eminent domain law. The CEQA count alleges that the District erroneously issued a notice of exemption, and because no exemption applies, the District was required to conduct CEQA review. In its eminent domain count, Golden Gate alleges that the District's resolution of necessity contained three statutory findings (that the public interest and necessity require acquisition of the real property, the project is planned/located in a manner most compatible with the greatest public good and the least private injury, and the real property rights are necessary for the project), all of which were unsupported by the evidence, thereby demonstrating the District's gross abuse of discretion. Golden Gate also alleges that the eminent domain law was violated because the District had irrevocably committed to the project before the hearing, and thereby abused its discretion. Golden Gate asked the superior court to vacate the District's adoption of the resolution of necessity.
In response, the District contended that the notice of exemption only applied to the acquisition of the property, not the construction of the Bay Trail, because the District had not committed itself to a definite course of action to build the Bay Trail.*fn7 The District also contended that there was no basis to halt the District's acquisition of the property, pursuant to section 15004 of the Guidelines. Finally, the District contended that substantial evidence supported its finding of public necessity.
Thereafter, the District filed an eminent domain action. A notice of related case was filed in the eminent domain action, and Golden Gate and the District stipulated that the mandate and eminent domain proceedings were related and that the mandate proceeding should be heard before the eminent domain proceeding. The trial court ordered the eminent domain action to trail the mandate proceeding.
On May 8, 2012, the trial court filed a statement of decision and order granting, in part, Golden Gate's petition for a writ of mandate. The trial court concluded: (1) that the District had approved a "project" including both the proposed acquisition and the proposed trail improvements; (2) that the District's resolution erroneously concluded the project was exempt from CEQA compliance; (3) that Golden Gate's challenges to the District's declaration of necessity for eminent domain lacked merit; and (4) that as for the relationship between CEQA approval and acquisition of real estate through eminent domain, while some authority suggests CEQA review must be completed before an eminent domain case is initiated, that approach was unpersuasive for various reasons.*fn8
The court stated: "[T]he project is 'to acquire the real property' 'to help to complete the [Eastshore Park] and provide the opportunity to construct an important segment of the . . . Bay Trail.' . . . [¶] . . . [¶] . . . For CEQA purposes, the 'project' includes both the proposed acquisition and the proposed improvements, as addressing the two parts sequentially would be improper piecemealing of the project.[*fn9 ] The proposed improvements are sufficiently definite given that [the District] considered three options for a trail site . . . , selected one, has a design and price estimate for the improvements . . . , and is now initiating the condemnation proceeding. [¶] . . . [¶] . . . Having selected the location of the trail, obtained engineering and costs studies for the trail, and initiated a proposed real estate acquisition that worked for that trail plan but not the alternatives, the [District] committed itself to a definite course of action in regard to the CEQA project. As a result, the [District] was required to state a CEQA exemption or describe CEQA compliance in the Resolution." The court concluded that no exemptions applied because "the project properly defined includes the building of the trail, the construction of fences, retaining walls, and drains, the loss of 133 parking spaces, and changes to existing roads."
With respect to a remedy, the court determined that, pursuant to section 15004, subdivision (b)(2)(A) of the Guidelines, a public agency is permitted to initiate condemnation proceedings with "actual acquisition" conditioned on future CEQA compliance. Accordingly, pursuant to section 21168.9, subdivision (a), the court did not order the resolution of necessity to be vacated but instead allowed the District to proceed with its eminent domain action before completing CEQA review. It directed the District "to vacate the Resolution's conclusion that the project is exempt from CEQA" and "conduct an appropriate CEQA review." It reasoned that "the initiation of the eminent domain proceeding will not prejudice the consideration or implementation of particular mitigation measures or alternatives to the project." (Brackets omitted.) However, the trial court also ordered that the District "must not actually acquire the property without first completing compliance with CEQA."
The trial court concluded: "The court directs [the District] to vacate the Resolution's conclusion that the project is exempt from CEQA. [The District] must conduct an appropriate CEQA review of the CEQA project based on an appropriate definition of the project for CEQA purposes. Consistent with the definition of the project under [section] 21065, this must include an evaluation of different locations for the path and any proposed changes to the physical environment at any identified alternate locations. [¶] The court does not direct [the District] to vacate the entire Resolution, and permits [the District] to proceed with an eminent domain action based on the resolution of necessity in the Resolution under [Code of Civil Procedure sections] 1240.030 and 1245.230(c). A public agency is permitted to adopt a declaration of necessity and to proceed with an eminent domain case before completing CEQA review and the court finds on the fact[s] of this case it is appropriate to permit [the District] to proceed with its eminent domain case before complying with CEQA. [¶] The court orders ...