Kunec v. Brea Redevelopment Agency

• Decision Date: 30 May 1997
• Docket Number: No. G017197,G017197
• Citation: 64 Cal.Rptr.2d 143,55 Cal.App.4th 511
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 4181, 97 Daily Journal D.A.R. 6969 Michael George KUNEC, Cross-Complainant and Respondent, v. BREA REDEVELOPMENT AGENCY, Cross-Defendant and Appellant.

Page 143

64 Cal.Rptr.2d 143

55 Cal.App.4th 511, 97 Cal. Daily Op. Serv. 4181,

97 Daily Journal D.A.R. 6969

Michael George KUNEC, Cross-Complainant and Respondent, v. BREA REDEVELOPMENT AGENCY, Cross-Defendant and Appellant.

No. G017197.

Court of Appeal, Fourth District, Division 3, California.

May 30, 1997.

As Modified on Denial of Rehearing June 20, 1997.

Review Denied Aug. 20, 1997.

Oliver, Vose, Sandifer, Murphy & Lee, Connie Cooke Sandifer and Arthur J. Hazarabedian, Los Angeles, for Cross-Defendant and Appellant.

Palmieri, Tyler, Wiener, Wilhelm & Waldron, Frank C. Rothrock, Gary C. Weisberg, Michael H. Leifer, and Donald F. Gaffney, Irvine, for Cross-Complainant and Respondent.

CROSBY, Associate Justice.

Good fences not only make good neighbors, but good politicians too. So reasons the Political Reform Act of 1974(PRA), Gov.Code, § 81000 et seq., an initiative measure that erects barriers to public decision making by officials who might otherwise govern in a financially self-interested manner. To implement these goals, the PRA calls for public disclosure and disqualification in appropriate circumstances.

This appeal involves politicians whose conflicts of interest arose because they were neighbors. Because two of five council members had property or financial interests immediately adjacent to a massive redevelopment project, a city council acting as a redevelopment agency invoked the so-called "rule of necessity" in Government Code section 87101 to allow one of them to participate in a condemnation decision requiring four affirmative votes. The trial court issued an injunction to invalidate the government decision holding the agency fatally erred in its rationale and methodology.

We affirm the injunction on the latter ground. Public disclosure is a critical weapon in the fight against government corruption. Whether there is a real impropriety or merely the appearance of an impropriety, the public has a right to know the particulars. Having invoked the rule of necessity, the agency was duty-bound to explain why. As we stated in another context in Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 907, 205 Cal.Rptr. 92, " 'The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.' "

I

The Brea Redevelopment Agency (Agency) embarked upon an ambitious 50-acre project to revitalize the historical downtown core in the City of Brea with a variety of commercial, retail, entertainment, office and residential uses. The project required the Agency to assemble a large amount of property, including commercial and residential sites.

Respondent Michael G. Kunec, a 77-year-old semi-retired inventor, owned one of the parcels the Agency wanted to acquire. The 7,500 square foot site was improved with a 3,200 square foot industrial metal factory that was nearly the same age as its owner.

The Agency wanted the property for three reasons. First, it was blighted. Second, it was needed to widen Brea Boulevard. Third, the Agency hoped to relocate the International Church of the Foursquare Gospel onto the site. The church, which was a "strong member of the City's ministerial community," previously had lost its home to redevelopment.

The Agency was governed by the five elected council members of the City of Brea. On November 19, 1991, after unsuccessfully attempting to negotiate with Kunec, the Agency held a hearing to consider adoption of a resolution of necessity to acquire the property by eminent domain. All five council members attended the meeting.

The city attorney advised the Agency that two council members, Carrey Nelson and Ronald Isles, had conflicts of interest necessitating their abstention from voting on the resolution of necessity because each had "property interests within the 300 foot radius" of the redevelopment area. The Agency applied the rule of necessity to gain four voting members necessary to adopt the resolution of necessity. The city clerk tossed a coin, leading to the determination that Nelson would vote and Isles would abstain. By a four-to-zero vote, the Agency adopted the resolution to authorize the condemnation of Kunec's property.

On November 27, 1991, the Agency filed a complaint in eminent domain against Kunec. After the Agency deposited $200,000 as estimated compensation, the trial court issued an order for prejudgment possession. The Agency demolished the structures and placed Kunec's personal property in storage.

In December 1992, Kunec filed a cross-complaint to enjoin the action and declare invalid the resolution of necessity based on the Agency's alleged PRA violations. The Agency demurred on the ground of lack of standing because Kunec was a resident of Anaheim, not Brea. In April 1993, Kunec filed a first amended cross-complaint, alleging he had acquired residency in Brea.

Trial extended over four days in July 1993 and one day in October 1993. The trial court issued a lengthy and thoughtful statement of decision in June 1994. Trial was reopened in August 1994 to allow further testimony on Kunec's alleged residency in Brea.

The superior court issued an injunction and order of conditional dismissal in January 1995. The judge declared the resolution of necessity void and ordered the Agency to conduct a "fair, legal and impartial hearing" within sixty days of the order or the action would be dismissed. The Agency filed a timely notice of appeal from the injunction and order of conditional dismissal and a subsequent award of $100,432 in costs and attorney fees to Kunec.

II

The Agency stumbles at the threshold in challenging Kunec's standing to bring this action. The Agency argues Kunec lacks standing to question the fairness or impartiality of its passage of the resolution of necessity because he did not reside in Brea, but only owned property there. For good measure the Agency also insists that Kunec had to have been a resident when the resolution of necessity was adopted.

We reject both arguments. The trial court had substantial evidence to support Kunec's standing. Indeed we question whether Kunec had to establish residency at all to challenge the validity of a governmental action taken directly against his property.

The PRA extends standing to bring a private civil action for injunctive relief to "[a]ny person residing in the jurisdiction...." (Gov.Code, § 91003, subd. (a).) It does so based upon declared findings that "[p]revious laws regulating political practices have suffered from inadequate enforcement by state and local authorities." (Gov.Code, § 81001, subd. (h).) The PRA is liberally construed to accomplish its purposes. (Gov.Code, § 81003.)

First, substantial evidence supports the trial court's determination that Kunec resided in Brea during the pendency of the action. The trial court conducted two separate hearings and heard testimony from three different witnesses, including Kunec and his landlord. Kunec, an elderly, unmarried man who was blind and in poor health, testified he lived in a rented room in a single-family residence in Brea. He registered to vote and voted there. He did not drive and relied upon his landlord to take him to the hospital, pick up groceries, and go on errands. He often ate with the landlord's family. While he used his house in Anaheim for storage and research, he denied he planned to return there to live because "[t]he neighborhood has [gone] down. We have drug dealers and thieves living in the same street." He had no water, restroom facilities or beds at the Anaheim house, and terminated his homeowner's exemption there. ¹

The trial court heard Kunec's testimony and believed him. While the Agency has reason to question his credibility, given his contrary statements in his deposition testimony, that is a matter for the trial court, not us. We may not discount Kunec's testimony "unless it is physically impossible or inherently improbable and such inherent improbability plainly appears." (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204, 52 Cal.Rptr.2d 518.) Since there was substantial evidence to support the trial court's conclusions, we will not second-guess them.

Second, we reject the Agency's efforts to rewrite the PRA to insert a durational residency requirement into Government Code section 91003. In construing legislation "the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted." (Code Civ. Proc., § 1858.) Section 91003 contains no specific time reference for the residency provision, and we will not add one. (Cf. Ector v. City of Torrance (1973) 10 Cal.3d 129, 135-136, 109 Cal.Rptr. 849, 514 P.2d 433 ["There is no similar 'waiting period' in the provision before us, but simply a requirement of residence in the community in order to be a municipal employee"].)

Our interpretation of the PRA does not render the residency requirement "utterly meaningless" nor does it encourage "political bounty hunters" to "move about from jurisdiction to jurisdiction, filing lawsuit after lawsuit, attempting to extract money from public officials." As the Agency itself points out, Kunec can only be a resident of one jurisdiction. Having physically relocated from Anaheim to Brea, Kunec was precluded from voting in Anaheim elections or from bringing PRA lawsuits within that city as a resident. That is a fairly significant price to pay.

Indeed we doubt whether the PRA actually requires condemnees to be residents of the jurisdiction where the affected property is located to challenge the validity of the governmental decision. The PRA on its face is intended to extend standing, not limit it. Its legislative findings...