People ex rel. State Lands Commission v. Superior Court

• Decision Date: 17 January 1974
• Citation: 111 Cal.Rptr. 733,36 Cal.App.3d 727
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Acting By and Through the STATE LANDS COMMISSION, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; CITY OF ALBANY, a municipal corporation, and Albany Land Fill Corporation, a California corporation, Real Parties in Interest. Civ. 33340.

Page 733

111 Cal.Rptr. 733

36 Cal.App.3d 727

PEOPLE of the State of California, Acting By and Through the STATE LANDS COMMISSION, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent CITY OF ALBANY, a municipal corporation, and Albany Land Fill Corporation, a California corporation, Real Parties in Interest.

Civ. 33340.

Court of Appeal, First District, Division 1, California.

Jan. 17, 1974.

Hearing Denied March 27, 1974.

Evelle J. Younger, Atty. Gen., Jay L. Shavelson, Asst. Atty. Gen., Jerold A. Krieger, John Briscoe, Deputy Attys. Gen., Los Angeles, for petitioner.

Thomas R. Owens, Goldfarb & Owens, Oakland, for Albany Land Fill Corp., a real party in interest.

Lawrence D. Saler, City Atty., Albany, for City of Albany, a real party in interest.

SIMS, Associate Justice.

By petition for writ of certiorari or prohibition or mandate the People of the State of California, acting by and through the State Lands Commission, seek review of an order of the trial court which, in response to a motion for summary judgment interposed by real party in interest Albany Land Fill Corporation, as an intervening plaintiff in an action for declaratory relief filed by real party in interest City of Albany, denied the motion for summary judgment, found that the State Lands Commission was not composed as required by law when it made the finding that was the subject of the action filed in the court below, and ordered that the matter the subject of the commission's finding be remanded to the commission and that the commission proceed forthwith to a rehearing of its previous decision. On consideration of the petition ¹ and the opposition thereto filed by real parties in interest, an alternative writ of mandate issued ordering the trial court to vacate the foregoing order, to deny intervenor's motion for summary judgment and to proceed to hear the pending action on its merits, or to show cause why such action had not been taken. Returns having been filed by real parties in interest, the matter was argued and has been submitted.

It is concluded that petitioner is entitled to a peremptory writ because the order was improperly made without a factual basis to support the finding that the commission was improperly composed, and was beyond the scope of the prayer for summary judgment.

Historically the facts relevant to the controversy go back to 1919 when the Legislature granted to the city 'all the right, title and interest of the State of California, held by said state by virtue of its sovereignty in and to all tidelands and submerged lands, whether filled or unfilled, which are included within the present boundaries of the city of Albany, to be forever held by said city and by its successors in trust for the use and purposes, and upon the express conditions following, to wit: ( ) That said lands shall be used by said city and its successors, only for the establishment, improvement and conduct of a harbor, and for the construction, maintenance and operation thereon of wharves, docks, piers, slips, quays, and other utilities, structures and appliances necessary or convenient for the promotion and accommodation of commerce and navigation, . . .' (Stats.1919, ch. 211, § 1, p. 310.) The statute also includes restrictions on alienation, provisions for franchises and leases for periods not to exceed 50 years, and other conditions.

In 1961 the foregoing statute was amended to increase the purposes for which the lands could be used, to lengthen the period of permitted franchises or leases to 66 years, and by the addition of other provisions and conditions. (Stats.1961, ch. 1763, § 1, p. 3767.) The last paragraph of this statute (erroneously designated as a second '(g)' although it follows paragraph '(i)') provides: '(g) That within 10 years from the effective date of the amendment of this section made at the 1961 Regular Session of the Legislature said lands shall be substantially improved by said city without expense to the State, and if the State Lands Commission determines that the city has failed to improve said lands as herein required, the authorization to use said lands for such additional purposes shall automatically terminate and lapse.' (Id., p. 3770.)

On March 23, 1972 the staff of the commission held a public hearing in the City of Albany. A report predicated on facts adduced at that hearing and from other investigations made by its staff was submitted to the commission at a meeting in Sacramento on May 24, 1972. The minutes of the meeting reflect that the following members of the commission ² were present: the State Controller, chairman, and the Director of Finance member. Among those listed as 'Also in Attendance' appears, 'Representing the Office of the Lieutenant Governor, Peter L. Tweedt, Administrative Assistant to the Lieutenant Governor.' At that meeting, which is the kernel of the controversy at issue in these proceedings, the commission adopted a resolution which found that the city had failed to substantially improve the granted land as required by the 1961 statute. ³

On June 7, 1972 the city petitioned the commission for 'a reconsideration of its decision by two of the members of the Commission on May 24, 1972 . . ..' No mention was made of any alleged illegal composition of the commission in that letter, or in a subsequent letter and enclosed affidavit of the president and sole shareholder of the intervening corporation. On August 31, 1972 the commission denied the request for reconsideration. According to the complaint and the complaint in intervention below, there were only two members of the commission present, of whom only one was present at the May 24, 1972 meeting. It would, therefore, appear that the Lieutenant Governor voted against reconsideration.

On September 29, 1972, the city filed a complaint for declaratory relief in which it set forth generally the steps taken by the city to improve the lands the subject of the state grant, the action by the commission, and the existence of a dispute between the city and the commission as to what factors should be considered in determining whether the lands have been 'substantially improved' as required by the statutory grant. The city further claimed that the statutory phrase was unconstitutionally vague, that it was denied equal protection of the law by the application of arbitrary standards and requirements different from those applied to others similarly situated, that the finding was the result of irrelevant inflammatory and prejudicial oral testimony, that the city was denied procedural safeguards prescribed by the Administrative Procedure Act, and that since only one member of the commission participated in both the original hearing and in the denial of reconsideration, the decision was not by a majority vote. The prayer for a declaration of the rights and duties of the city and the commission under the 1961 statutory grant also requested that the court declare that the commission unlawfully, invalidly and illegally revoked the uses of the land for the additional purposes set forth in the 1961 statute.

On December 13, 1972 the corporation filed its complaint in intervention, in which it set forth its interest under a 10-year contract with the city entered into January 1, 1964, which contained an option for renewal for another 10 year term. The complaint generally follows the allegations and prayer of the city's complaint.

The commission's motions to strike portions of each complaint were continued from time to time and ultimately ordered to be heard at the time of trial. On February 13, 1973, both the city and the corporation amended their complaints to allege the invalidity of the composition of the commission at its May 24, 1972 meeting. ⁴

On April 13, 1973 the intervenor filed a notice of motion 'for an order declaring the decision of May 25, 1972 (sic., May 24, 1972) by the State Lands Commission null and void and entering judgment in favor of Intervenor.' The motion was interposed on the ground that the commission was improperly constituted at its meeting in which the plaintiff's and intervenor's rights were determined. In support of the motion the city attorney and the president and owner of the intervenor corporation, each alleged: '3. The Commission on said date was comprised of three (3) persons, to wit: the Comptroller (sic) of the State of California, Houston Flournoy; the California Director of Finance, Vernon Orr; and a third person unknown to me but whom I knew not to be the Lieutenant Governor of California, Edward Reinicke. ( ) 4. The 'unknown' Commissioner sat behind the bench reserved for the Commission with the other two Commissioners, and as with the other two Commissioners that day, the 'unknown' member of the Commission asked questions of the people presenting evidence on the issue at hand, made comments concerning the evidence, and in all other ways fully participated in the conduct of the meeting. . . . ( ) 6. At the close of the public hearing aforesaid, Commissioners Flournoy and Orr expressed their conclusion that based on the evidence they heard at said hearing, the City of Albany had not substantially improved the tidal areas, and they voted to withdraw the aforesaid grant. To the best of my knowledge and belief, the 'unknown' Commissioner joined in that conclusion and vote.'

In opposition the commission submitted the declaration of an administrative assistant to the Lieutenant Governor who stated, 'On May 24, 1972, the Lieutenant Governor was unable to attend the meeting of the State Lands Commission and requested that I attend said meeting to represent him at the meeting. I have often represented the Lieutenant Governor at these meetings so that he can be kept informed of the transactions of the Commission when he is unable to attend. At the Commission meetings which I attend, I have often participated in the discussions concerning the matters before the Commission. However, both the Lieutenant...