Opinion
Vacated on Denial of Rehearing Oct. 14, 1992.
Previously published at 9 Cal.App.4th 565
Seyfarth, Shaw, Fairweather & Geraldson, William J. Thomas and William M. Brown, and William A. Anderson, Sacramento, for petitioner.
Seyfarth, Shaw, Fairweather & Geraldson and William J. Thomas, Nancy M. McDonough and Carolyn S. Richardson, Sacramento, McClintock, Weston, Benshoff, Rocherfort, Rubalcava & MacCuish, Gregory R. McClintock and Jane M. Feamster, Los Angeles, B.C. Barmann, County Counsel, Mark L. Nations, Deputy County Counsel, as amici curiae on behalf of petitioner.
No appearance for Respondent.
Baker, Manock & Jensen, Douglas B. Jensen, John L.B. Smith and Susan F. Coberly, Fresno, for real party in interest.
OPINION
BEST, Presiding Justice.
In this case we consider whether real party in interest, the Fresno Metropolitan Flood Control District (the District), has statutory authority to take property outside its territorial boundaries by eminent domain to mitigate the environmental effects of a project constructed within its boundaries. We conclude that it does not STATEMENT OF THE CASE
The District filed an action under the California Eminent Domain Law to acquire a 40-acre parcel located in Kern County, in the middle of the 18,000-acre cattle ranch owned by petitioner Kenneth Mebane Ranches (Mebane).
According to the allegations of the first amended complaint: the District is empowered by the Fresno Metropolitan Flood Control Act, California Water Code, Uncodified Acts, Act 2791 (Act 2791 or the Act), to protect lands within its jurisdiction from flooding and to conserve flood waters; the District is the local sponsor of the Redbank-Fancher Creeks Flood Control Project (the project) located within the District's jurisdiction in Fresno County; environmental assessment of the project revealed that a plant on the California endangered species list, the Tulare Pseudobahia (pseudobahia or the plant), grows in the flood control basin; water runoff from major storms could inundate the basin and destroy the plant; the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) requires the District to mitigate that possibility by acquiring other property containing viable populations of the plant; the District located pseudobahia on land owned by Mebane in Kern County approximately 100 miles from the flood control site; following public hearings, the District's Board of Directors adopted Resolution No. 1591 and Supplemental Resolution No. 1633 which declare the necessity of acquiring Mebane land containing a viable stand of pseudobahia to mitigate the significant environmental impact on the plant engendered by construction of the project.
Mebane demurred to the District's first amended complaint contending (1) the court had no jurisdiction to grant the relief requested as the District had no power to condemn extraterritorially, and (2) the pleadings did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrer.
The factual allegations of the petition are deemed to be true for purposes of our review. (City of Beaumont v. Beaumont Irr. Dist. (1965) 63 Cal.2d 291, 292, 46 Cal.Rptr. 465, 405 P.2d 377).
Mebane seeks a writ of prohibition directing the trial court to vacate its order overruling the demurrer and to enter an order sustaining the demurrer. The District concurs the novel jurisdictional issue should be decided at this juncture rather than after trial.
DISCUSSION
Propriety of Writ Relief
A writ of prohibition may issue to restrain judicial action in excess of jurisdiction where there is no other adequate remedy. (Code Civ.Proc., §§ 1102, 1103.) When the power of a condemning agency to maintain an action in eminent domain has been raised in the trial court by demurrer and the jurisdictional challenge has been resolved in favor of the condemnor, the jurisdictional issue may be raised by a petition for writ of prohibition. (Skreden v. Superior Court (1975) 54 Cal.App.3d 114, 116, fn. 1, 126 Cal.Rptr. 411; Harden v. Superior Court (1955) 44 Cal.2d 630, 634-636, 284 P.2d 9.) Thus, the jurisdictional question of public importance raised by this case is appropriate for writ of prohibition review.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Can the District take property outside its territorial boundaries by eminent domain to mitigate the environmental effects of a project constructed within its boundaries?
1. Express Authority
In granting a local public agency the power of eminent domain, the Legislature may prescribe the particular property that may be condemned as well as the use for which property may be taken. (§§ 1240.020, 1240.050; 29 Cal.Jur.3d (Rev.) Eminent Domain, § 6, pp. 59-60.) Thus, this court must determine whether the District The District's powers of extraterritorial condemnation are set forth in its enabling act, Act 2791, and the California Eminent Domain Law, sections 1240.050 and 1240.125. Neither the enabling act nor the California Eminent Domain Law expressly authorize the District to exercise extraterritorial condemnation for environmental mitigation purposes.
Section 8 of Act 2791 provides the District shall have:
"the powers enumerated in this act, all powers necessarily or reasonably implied therefrom, and all powers necessarily or reasonably implied from the creation and existence of the district. The powers include the following:
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"3. To have and exercise the power of eminent domain.
"4. To take by grant, exchange, purchase, including for cash, promissory note secured by purchase money deed of trust, assumption of existing indebtedness, or any combination thereof, gift, lease, devise or otherwise and to hold, use, and enjoy real or personal property ... within or without the district necessary to or convenient for the full exercise of its powers.
"5. To acquire lands, rights-of-way ... and property of every kind and nature, to construct, maintain, and operate any or all works or improvements within or without the district necessary or proper to carry out any of the objects or purposes of this act, and to complete, extend ... or otherwise improve any works or improvements acquired by it ... and used in whole or in part for flood control, storm drainage, or water conservation purposes."
Section 7, subdivision (a) of Act 2791 provides the purposes of the Act and the District are: (1) to control storm, flood or waste waters of or within the District, (2) to protect property within the District from those waters, and (3) to conserve those waters by groundwater recharge.
Section 26 of the Act provides the power of eminent domain vested in the District shall be exercised pursuant to the California Eminent Domain Law (§ 1230.010 et seq.).
The Eminent Domain Law provides in pertinent part:
"Except as otherwise specifically provided by statute, the power of eminent domain may be exercised only as provided in this title." (§ 1230.020.)
"A local public entity may acquire by eminent domain only property within its territorial limits except where the power to acquire by eminent domain property outside its limits is expressly granted by statute or necessarily implied as an incident of one of its other statutory powers." (§ 1240.050.)
"Except as otherwise expressly provided by statute and subject to any limitations imposed by statute, a local public entity may acquire property by eminent domain outside its territorial limits for water, gas, or electric supply purposes or for airports, drainage or sewer purposes if it is authorized to acquire property by eminent domain for the purpose for which the property is to be acquired." (§ 1240.125.)
The Legislative Committee Comment on section 1240.125 states:
"[The section] makes clear that a local public entity authorized to condemn for utility purposes is expressly authorized to condemn property outside its territorial limits for such purposes, thus avoiding the need to imply such authority under some other statute. Under Section 1240.125, a local public entity authorized to condemn for water supply purposes, for example, may condemn outside its boundaries for water supply purposes. As used in this section, 'utility supply purposes' includes collection, generation, storage, and distribution....
"...
"Section 1240.125 does not affect implied extraterritorial condemnation authority for other purposes under other A statutory grant of eminent domain power must be indicated by express terms or by clear implication. Statutory language defining eminent domain powers is strictly construed and any reasonable doubt concerning the existence of the power is resolved against the entity. However, a statute granting the power of eminent domain should be construed to effectuate and not defeat the purpose for which it was enacted. (Golden Gate Bridge etc. Dist. v. Muzzi (1978) 83 Cal.App.3d 707, 712, 148 Cal.Rptr. 197.)
Under this strict construction standard, the California Eminent Domain Law does not expressly authorize the District's extraterritorial exercise of eminent domain to secure the Mebane property for environmental mitigation purposes. Section 1240.125 authorizes extraterritorial condemnation for six enumerated purposes, including "water" and "drainage." Environmental mitigation is not one of the specified purposes. Moreover, under the strict construction standard, we cannot read the statute to authorize extraterritorial condemnation to mitigate the environmental impact of a water or drainage project.
Section 1240.050 which authorizes extraterritorial condemnation where expressly granted by statute does not authorize the District's condemnation of the Mebane property because the District's enabling act does not expressly empower the District to acquire lands outside its boundaries for environmental mitigation purposes. First, paragraph 3 of section 8 of the Act which grants the District the power of eminent domain does not empower it to condemn property outside its boundaries. (Compare Sacramento etc. Dist. v. Pac. G. & E. Co. (1946) 72 Cal.App.2d 638, 644, 165 P.2d 741: Under the Municipal Utility District Act the District had power "To ... condemn in proceedings under eminent domain ... real and personal property of every kind within or without the district...."; Pub. Resources Code, § 5540: "A [regional park, etc.] district may take by grant, ... condemnation, ... property of every kind, ... within or without the district....")
Second, the grant of power in paragraph 4 of section 8 "[t]o take by grant ... or otherwise ... real or personal property ... within or without the district necessary to or convenient for the full exercise of its powers" is not an express grant of eminent domain power outside District boundaries for environmental mitigation purposes. Paragraph 4 lists a number of voluntary methods by which the District may "take" property outside its boundaries to effectuate its purposes. Under the strict construction standard, the "or otherwise" provision can only be construed to refer to another voluntary method of acquisition. (Cf. Harden v. Superior Court, supra, 44 Cal.2d at pp. 640, 642, 284 P.2d 9, a grant of power to "purchase, lease, or receive such ... real estate situated inside or outside the city limits as is necessary or proper for municipal purposes" did not expressly authorize the city to take property outside its boundaries by eminent domain. [Emphasis in original.] )
For similar reasons, the grant of power in paragraph 5 of section 8 "[t]o acquire lands ... to construct, maintain, and operate any or all works or improvements within or without the district necessary or proper to carry out any of the objects or purposes of this act ..." does not expressly authorize the District's exercise of eminent domain in this case. Even if we construe the "acquire" language of paragraph 5 to include acquisition by eminent domain, the paragraph as a whole must be read in light of section 26 of the Act which provides that the District's powers of eminent domain shall be exercised pursuant to the California Eminent Domain Law. Read in that light, paragraph 5 merely empowers the District to acquire by eminent domain property outside its boundaries to construct, maintain, or operate a necessary "water" or "drainage" improvement. It clearly does not empower the District to condemn property outside its boundaries to mitigate the environmental effects of a necessary improvement constructed, maintained or operated within the 2. Implied Authority
Section 1240.050 permits extraterritorial condemnation by a local agency when that power is "necessarily implied as an incident of one of its other statutory powers." This exception codified prior law, which acknowledged the power of extraterritorial condemnation when necessary to implement local condemnation. (City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 75, 183 Cal.Rptr. 673, 646 P.2d 835.) For example, courts have held where a municipality had the power to construct sewers, it could extend them beyond its boundaries as an implied incident to its express powers when necessary or manifestly desirable. (See Harden v. Superior Court, supra, 44 Cal.2d at pp. 638-639, 284 P.2d 9 and cases cited therein.) However, such power is now expressly authorized by section 1240.125's authorization of extraterritorial condemnation for "sewer purposes."
The court found an implied power of extraterritorial eminent domain in City of North Sacramento v. Citizens Utilities Co. (1961) 192 Cal.App.2d 482, 13 Cal.Rptr. 538. The city sought to condemn a water system which served customers both within and without the city boundaries. Applicable statutes specifically authorized the city to condemn water systems within its boundaries, to condemn wells and water on adjacent lands and to provide water services to persons within and without its boundaries (Id. at pp. 484-485, 13 Cal.Rptr. 538.) Although none of the statutory provisions provided the city express authority to condemn that portion of the water system outside its boundaries, the court implied the power as incidental to the existence of the powers expressly granted. (Id. at p. 485, 13 Cal.Rptr. 538.) The court reasoned, if the power exists to construct public works or improve property outside the municipal limits, and a statute expressly or by necessary implication authorizes the condemnation of property within the corporate limits for such purposes, then the municipality is impliedly authorized to condemn property outside the limits for such purposes. (Id. at pp. 486-487, 13 Cal.Rptr. 538.)
Under current eminent domain law, the court would not have to find an implied power of eminent domain. Under section 1240.125, a local public entity has express authority to condemn property outside its boundaries where necessary for "water" purposes including collection, generation, storage and distribution. (Legis.Com. com. to § 1240.125, supra.)
Application of that rule to this case would yield the following: Paragraph 5 of section 8 of Act 2791 empowers the District to construct, maintain or operate all works or improvements within or without the District necessary to carry out its purposes of flood control and water conservation. Paragraph 3 of that section authorizes the District to exercise the power of eminent domain (at least within the District limits) for such purposes. Thus, under City of North Sacramento v. Citizens Utilities Co., supra, 192 Cal.App.2d at page 487, 13 Cal.Rptr. 538, the District, by implication, would be authorized to condemn property outside its boundaries to construct, maintain or operate a project necessary for flood control or water conservation within the District. Carrying the analogy a step further, the District could condemn property outside its boundaries to mitigate the adverse environmental effects of its authorized projects, if such mitigation was necessary in order to construct, maintain or operate an authorized project. In other words, the District could condemn property outside its boundaries (the fenced 40-acre stand of pseudobahia) in order to maintain an authorized improvement within its boundaries, if the exercise of such power was necessary to the exercise of the District's other powers. Therein lies the flaw in the District's argument.
The District contends the Act necessarily implies the authority to condemn extraterritorial property for environmental "Here the question is whether the respondent's power to condemn property necessary for water transportation implicitly includes the power to condemn property necessary for mitigation of the environmental effects caused by the water transportation system.
"As the present record indicates, condemnation of property and the construction of facilities for water transportation involve the approval and acquisition of permits from numerous governmental agencies. Approval and permit requirements are especially strict where the planned facilities front on a body of water. In the present case there was testimony that respondent's terminal project required the approval of dozens of different agencies, including the State Lands Commission, Army Corps of Engineers, and Bay Conservation and Development Commission. Several of the agencies required as a condition of their approval that environmental mitigation measures be taken." (Id. at pp. 712-713, 148 Cal.Rptr. 197, emphasis added.)
Further, the question of whether the plaintiff district had implied authority to condemn property extraterritorially for environmental mitigation purposes was neither addressed nor decided in that case.
Read broadly, Muzzi stands for the proposition when approval of a local public entity's project requires that environmental mitigation measures be taken, the entity's ability to mitigate the adverse environmental effects of the project by exercise of the power of eminent domain can be implied as an incident to its other statutory powers. (Golden Gate Bridge etc. Dist. v. Muzzi, supra, 83 Cal.App.3d at p. 713, 148 Cal.Rptr. 197.)
In Muzzi, environmental mitigation measures were required by several governmental agencies as a prerequisite to approval of the project. In this case, the District alleges CEQA requires it to mitigate the adverse environmental effects of its flood control project by acquiring the Mebane property. We do not read the pertinent portions of CEQA as requiring mitigation in this manner.
CEQA imposes a duty on public agencies to avoid or mitigate the significant environmental impacts caused by projects when feasible to do so. (Pub. Resources Code, § 21001, subd. (c); § 21002, § 21002.1, subd. (b); Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 521, 147 Cal.Rptr. 842.) CEQA also gives public agencies the authority to approve a project notwithstanding its environmental impacts, if the agency determines it is not feasible to lessen or avoid the significant effects (Pub. Resources Code, § 21002; (Cal.Code Regs., tit. 14, § 15043, subd. (a)) and if specifically identified benefits of the project outweigh the unavoidable, significant environmental impacts. (Pub. Resources Code, § 21002.1, subd. (c); Cal.Code Regs., tit. 14, § 15043, subd. (b); San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 596-597, 122 Cal.Rptr. 100.)
While the District's first amended complaint alleges "the property sought to be acquired is necessary for the project," this is a legal conclusion. A demurrer "makes no binding judicial admissions.... But provisionally, and solely for the purpose of testing the question of law raised ..., all material, issuable facts properly pleaded in the complaint are admitted...." (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 898, p. 338.) However, allegations constituting legal conclusion are not provisionally admitted for the purposes of a demurrer. (Ibid.) Moreover, a demurrer "does not admit a conclusion of law, nor does it admit ... facts impossible in law, or allegations Under section 1245.250, subdivision (a), if the property to be taken by eminent domain is located within the boundaries of the condemning entity, the resolution of necessity adopted by the public entity conclusively establishes the necessary findings to the exercise of eminent domain, namely: (a) the public interest and necessity require the project, (b) the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury, and (c) the property sought to be acquired is necessary for the project. (§ 1240.030.) However, if the property to be taken is not located entirely within the boundaries of the local public entity, the resolution of necessity merely creates a presumption that the matters referred to in section 1240.030 are true. This presumption is a presumption affecting the burden of producing evidence. (§ 1245.250, subd. (b).)
"The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate." (Evid.Code, § 604.)
For purposes of our review, we would normally accept as true the matters referred to in section 1240.030, i.e., the public interest and necessity require the project, the proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury and, "the property sought to be acquired is necessary for the project." However, to accept as true the District's allegation that the property sought to be acquired is necessary for the proposed project would be to accept as fact something that is "impossible in law."
As we have noted earlier, CEQA only requires the District to mitigate "whenever it is feasible." The state CEQA Guidelines define "feasible" to mean "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." (Cal.Code Regs., tit. 14, § 15364.) Obviously, if District is without legal power to condemn extraterritorially, then the proposed mitigation measure would not be feasible. And, if there is no other feasible way to mitigate the environmental impact, District may proceed with the project and be in full compliance with CEQA. Under such circumstances, the property sought to be acquired would not--and could not--be legally necessary for the proposed project. In short, saying it's so doesn't make it so!
Accordingly, since the Mebane property is not legally necessary for the proposed project, we cannot by implication empower the District to exercise the right of eminent domain to condemn the Mebane property for environmental mitigation purposes as an incident to District's other statutory powers. Our conclusion is bolstered by Public Resources Code section 21004 which states CEQA does not grant a public agency additional powers independent of those granted by other laws. Thus, CEQA's provisions, of themselves, do not confer on the District express or implied powers of extraterritorial condemnation.
Finally, sound policy reasons exist for limiting the District's power to take land outside its boundaries to mitigate the environmental effects of projects within its boundaries. These reasons were well noted by this court in an earlier decision:
"It is apparent that the Legislature, in differentiating between property inside and outside the territorial limits of the condemning agency, recognized the differences in the postures of both the property owner and the condemning agency in these contrasting situations. Where the property is inside the territorial limits, the ministerial officers and legislative body of the condemning agency and the property owners and taxpayers should have full knowledge of conditions, locations, and the public good involved in DISPOSITION
The petition is granted. Let a writ of prohibition issue enjoining further proceedings in Kern County Superior Court action No. 215671. Costs to petitioner.
VARTABEDIAN and FRANSON, JJ., concur.
Retired Presiding Justice of the Court of Appeal, Fifth Appellate District, sitting under assignment by the Chairperson of the Judicial Council.