Tillie Lewis Foods, Inc. v. City of Pittsburg

• Decision Date: 07 October 1975
• Citation: 124 Cal.Rptr. 698,52 Cal.App.3d 983
• Court: California Court of Appeals Court of Appeals
• Parties: TILLIE LEWIS FOODS, INC. and Union Carbide Corporation, Plaintiffs and Respondents, v. CITY OF PITTSBURG et al., Defendants and Appellants, El Pueblo Tenants Council et al., Intervenors and Appellants. Civ. 30324.

Page 698

124 Cal.Rptr. 698

52 Cal.App.3d 983

TILLIE LEWIS FOODS, INC. and Union Carbide Corporation, Plaintiffs and Respondents, v. CITY OF PITTSBURG et al., Defendants and Appellants, El Pueblo Tenants Council et al., Intervenors and Appellants.

Civ. 30324.

Court of Appeal, First District, Division 4, California.

Oct. 7, 1975.

As Modified on Denial of Rehearings Nov. 6, 1975.

Hearing Denied Dec. 17, 1975.

Rutan & Tucker, Milford W. Dahl, James E. Erickson, Santa Ana, Alfred A. Affinito, City Atty., Pittsburg, for appellants City of Pittsburg and others.

Contra Costa Legal Services Foundation, George E. Chaffey, Eugene M. Swann, Pittsburg, for appellants El Pueblo Tenants Council and others.

Robert D. Raven, Mark Reutlinger, Morrison, Foerster, Holloway, Clinton & Clark, San Francisco, for respondent Union Carbide Corp.

Richard D. Sanders, Stanley K. Dodson, Sanders, Scott & Dodson, Pittsburg, for respondent Tillie Lewis Foods, Inc.

RATTIGAN, Associate Justice.

The two appeals herein are from a single judgment entered by the Contra Costa County Superior Court in two mandamus actions which were tried together pursuant to an order consolidating them for that purpose. The judgment invalidated proceedings which had been commenced for the annexation of certain unincorporated territory to the City of Pittsburg, and directed the issuance of a peremptory writ of mandate which terminated the proceedings. Separate appeals from the judgment have been taken (1) by the City and agencies and officers thereof, all of whom had been named as respondents in each of the actions as commenced; and (b) by inhabitants of the affected territory who appeared and participated in both actions as intervenors in each.

Proceedings for the annexation of so-called 'inhabited' territory to a city must ordinarily be conducted pursuant to the Annexation Act of 1913 (hereinafter 'the 1913 Act'). Where the territory proposed to be annexed is 'uninhabited' as that term is defined in the Annexation of Uninhabited Territory Act of 1939 ('the 1939 Act'), proceedings for its annexation are to be conducted pursuant to that Act. ¹ As will appear, the distinction between 'inhabited' and 'uninhabited' territory has been historically crucial in annexation proceedings because of substantial differences between the two Acts. As will also appear, these differences have been materially affected by recent changes in the law but the essential distinctions between 'inhabited' and 'uninhabited' territory, and between the two Acts, have retained their significance.

The principal issue on the present appeals involves the effect of these distinctions when purportedly drawn by a Local Agency Formation Commission ('LAFCO') in the course of its review of a municipal annexation proposal pursuant to the Knox-Nisbet Act. ² Specifically, the question is whether a LAFCO determination that territory proposed for annexation is 'inhabited' is conclusive as a matter of law, and irreversibly requires that the territory be annexed pursuant to the 1913 Act, because the Knox-Nisbet Act so provides; or whether, notwithstanding the latter Act, such determination by LAFCO is subject to judicial review and nullification as a question of fact.

The Area Involved

The unincorporated territory in dispute is a 459-acre tract of land which is located, generally, to the west of the present westerly boundary of the City of Pittsburg. It is officially designated 'Baker Territory No. 5, as amended'; we call it 'Baker Territory.' Although its zoning, demographic and related features are described in detail in the trial court's findings hereinafter quoted, we preliminarily describe it as follows:

Markedly irregular in shape, the territory lies along an east-west axis which runs in a westerly direction from the Pittsburg city limit for an overall distance of several miles. Its extreme easterly portion, which is contiguous to the city and is itself irregular in shape, includes approximately one-sixth of the land area of the full territory. The easterly portion is comprised of the 'El Pueblo' neighborhood and Columbia Park. El Pueblo, a public housing project, is wholly residential. The park is much larger than El Pueblo, and no residences are located in it.

The larger, westerly portion of Baker Territory is connected to the just-described easterly portion by a narrow, mile-long strip which runs west from a corner of Columbia Park. The strip is not residential, and consists in part of a freeway which runs from east to west. The westerly portion of the territory balloons in area at the westerly end of the strip, and extends further west for approximately three miles. The westerly portion is developed and used for industrial purposes; the only residential structures in it are the Betty Ray Motel and two dwellings.

Tillie Lewis Foods, Inc., and Union Carbide Corporation (who were the petitioners for mandate below, and to whom we refer as 'petitioners' although they are the respondents on the appeals) own separate parcels of land located in the westerly portion of Baker Territory. Each of petitioners' parcels is improved with valuable industrial buildings.

The Annexation Proceeding

The Pittsburg City Council, having been requested to annex Baker Territory, submitted a proposal for its annexation to the Contra Costa County LAFCO for its approval pursuant to section 35002. ³ After conducting a hearing and related proceedings required by the Knox-Nisbet Act in connection with such proposals (§ 54791 et seq.), LAFCO adopted a resolution in which it declared that 'the territory proposed to be annexed Is . . . inhabited' (emphasis added), made no change in its boundaries as proposed, and approved the proposal for its annexation subject to specified 'terms and conditions.' The 'terms and conditions' included a provision which designated the effective date of the annexation 'if approved by the voters' as required by the 1913 Act.

In a proceeding for the annexation of Baker Territory which was thereupon initiated by the City of Pittsburg pursuant to the 1913 Act, ⁴ a petition was noticed and circulated among the registered voters residing in Baker Territory; the petition was signed by the requisite number among them, and was returned to the City Council; and the Council adopted a resolution announcing its intent to call a special annexation election within Baker Territory and setting a hearing at which it (the Council) would consider written protests to the annexation filed by owners of land within the territory. (§§ 35111--35117.)

Written protests filed with the Council by some of the affected landowners, pursuant to section 35120 as it provided at the time, represented only 43% Of the value of the real property in Baker Territory according to the measure of such value as then provided in section 35121; as further provided in the latter section at the time, the protests were insufficient to command termination of the annexation proceeding. ⁵ Counsel for petitioner Tillie Lewis Foods, Inc., nevertheless appeared at the protest hearing and demanded that the proceeding be terminated 'on the ground that it was being brought pursuant to the Annexation Act of 1913 governing inhabited real property, when in fact the real property sought to be annexed consisted substantially of uninhabited industrial land. . . . (The City) . . . refused to terminate said proceedings.' (We here quote the trial court's findings.)

A requisite majority of landowner protests having failed to materialize according to the then-current provisions of the 1913 Act (see fn. 5, Ante), the Pittsburg City Council conducted an annexation election in Baker Territory pursuant to that Act. (§§ 35122--35133.) The voters approved the annexation by an overwhelming majority. An ordinance approving it was thereupon introduced in the City Council pursuant to section 35135.

The Litigation

At this point, the petitioners commenced the two mandamus actions. The annexation proceeding was stayed by temporary restraining orders, and by alternative writs of mandate, issued in each action.

In its respective petition for mandate, each petitioner named as 'respondents' only the City of Pittsburg, its City Council and its Planning Commission as such, and the individual members of both bodies. ⁶ The Contra Costa County LAFCO was not named as a party, and did not subsequently appear, in either action. Consistent with this omission, neither petitioner complained of, or mentioned, LAFCO's action approving the proposed annexation of Baker Territory; both petitions were addressed only to the City's actions in treating the territory as 'inhabited' for purposes of its annexation.

Each of the petitioners alleged in substance that 400 of the 459 acres in Baker Territory consisted of land which was in fact uninhabited; that the respective petitioner owned land in the uninhabited area; that the area was physically separated from the smaller, inhabited portion of the territory by actual on-the-ground barriers; and that the City's actions, in treating the 400 acres as inhabited territory subject to annexation pursuant to the 1913 Act, were illegal and void. In virtually identical answers filed in the respective answers, the City pleaded material denials and alleged, as an affirmative defense, the LAFCO action approving the annexation.

The Intervention

At or about the time the City filed its answers, Ex parte motions for leave to intervene in both actions were made and granted pursuant to section 387 of the Code of Civil Procedure. The intervenors were El Pueblo Tenants Council (an unincorporated association composed of residents of the El Pueblo housing project) and three of its members appearing as individuals. In their complaints in intervention, they alleged their support of the annexation of Baker Territory as originally proposed; pleaded as 'affirmative defenses' LAFCO's approval of the annexation and various equitable defenses which are not...