Untitled California Attorney General Opinion ( 1994 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 93-906
of :
: April 1, 1994
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
The CITY OF VICTORVILLE and the VICTOR VALLEY ECONOMIC
DEVELOPMENT AUTHORITY have requested leave to sue in quo warranto to prevent the City
of Adelanto and the Redevelopment Agency of Adelanto from redeveloping George Air Force Base.
DISPOSITION
Leave to sue in quo warranto to prevent the City of Adelanto and the Redevelopment
Agency of Adelanto from redeveloping George Air Force Base is denied.
ANALYSIS
This application for leave to sue in quo warranto represents one of many chapters in
a continuing five-year struggle between the Victor Valley Economic Development Authority
("VVEDA") and the City of Adelanto and the Redevelopment Agency of Adelanto ("Adelanto") to
acquire and redevelop George Air Force Base ("GAFB") located in Victor Valley, San Bernardino
County. VVEDA asserts an exclusive right to redevelop GAFB pursuant to a legislative grant of
authority (Health & Saf. Code, § 33320.5, infra) and accordingly alleges that Adelanto is usurping
and intruding into its exclusive franchise.
Section 803 of the Code of Civil Procedure1 provides that "[a]n action may be
brought by the attorney general, in the name of the people of this state, upon his own information,
or upon a complaint of a private party . . . against any corporation, either de jure or de facto, which
usurps, intrudes into, or unlawfully holds or exercises any franchise within this state." As used in
the statute, "private party" has been construed by this office to include public entities as relators.
(76 Ops.Cal.Atty.Gen. 157, 163 (1993).)
1
All references hereafter to the Code of Civil Procedure are by section number only.
1. 93-906
An action authorized by section 803 is maintained "in the interest of the public . . .
." (67 Ops.Cal.Atty.Gen. 151, 153 (1984); see City of Campbell v. Mosk (1961) 197 Cal. App. 2d
640, 648-650.) In determining whether to grant leave to sue, this office considers: (1) whether the
application has raised a substantial issue of law or fact which a court should decide and (2) whether
it would be in the public interest to grant leave to sue. (See, e.g., 77 Ops.Cal.Atty.Gen. 7, 8 (1994).)
We have determined on a number of occasions that it would not be in the public
interest to grant leave to sue where the issues presented in the quo warranto application are pending
in another action or actions before the courts. (See, e.g., 74 Ops.Cal.Atty.Gen. 31, 32 (1991); 73
Ops.Cal.Atty.Gen. 188, 190 (1990) 73 Ops.Cal.Atty.Gen. 109, 110 (1990). As we recently stated:
"We do not deem it within the public interest to try the same issues in multiple proceedings." (74
Ops.Cal.Atty.Gen., supra, at p. 32.)
A. Factual Background
In January of 1989, the United States Secretary of Defense announced the closure of
GAFB.2 At the time of the announcement, 5075 acres of GAFB were located in unincorporated
territory and 275 acres were located within Adelanto.
In September of 1989, the Legislature enacted Health and Safety Code section
33320.5 as part of the Community Redevelopment Law (Health & Saf. Code, §§ 33000-33855) to
govern the redevelopment of GAFB. The statute currently provides in part:
"(a) . . . the requirement that privately owned land within a project area by
`predominantly urbanized,' . . . shall not apply to privately owned land within a
project area, if the privately owned land is adjacent or in proximity to a military
facility or installation which is proposed to be closed pursuant to Public Law 100-
526 and the inclusion of the privately owned land is found by an entity formed
pursuant to subdivision (b) to be necessary for the effective redevelopment of the
military facility or installation and the adjacent area.
"(b) The legislative bodies for communities having territory within, adjacent
to or in proximity to a military facility or installation described in subdivision (a)
may create a separate joint powers agency . . . which shall have and exclusively
exercise powers of an agency in furtherance of the redevelopment of a project area
approved by the joint powers agency. The joint powers agency so formed shall
include as one of its members the county in which the project area is located. In
addition to the powers of an agency, the joint powers agency so formed shall also act
as the legislative body and planning commission for all approvals and actions
required by this part of legislative bodies and planning commissions for the adoption
and implementation of a redevelopment plan. However, all land use, planning, and
development decisions with regard to the land within the project area shall continue
to be under the control and jurisdiction of each of the respective local legislative
bodies or planning commissions, as applicable.
"(c) The territory included within the project and project area may be
contiguous or noncontiguous, and any project area may be located in whole or in part
within one or more of the communities impacted by the closure of the military
2
The closure of another base in San Bernardino County, Norton Air Force Base, was announced
at the same time.
2. 93-906
facility or installation, and the land to be included within the project area within the
community or communities in proximity to the military facility or installation shall
be found necessary for the effective redevelopment of the military facility or
installation and the adjacent area. A project area shall not include territory outside
the jurisdiction of the communities that are parties to the joint powers agency
without the consent of the legislative body having jurisdiction over the territory
proposed to be included within the project area.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(i) As used in this section, `in proximity to' means within three miles of the
boundary of Norton Air Force Base and within eight miles of George Air Force Base.
"(j) The Legislature finds and declares that the closure of two or more
military facilities or installations within the County of San Bernardino will cause
serious economic hardship in the county, including loss of jobs, increased
unemployment, deterioration of properties and land utilization and undue disruption
of the lives and activities of the people. Therefore, the Legislature finds and declares
that to avoid serious economic hardship and accompanying blight, it is necessary to
enact this act which shall apply only within the County of San Bernardino. In
enacting this act, it is the policy of the Legislature to assist communities within the
County of San Bernardino in their attempt to preserve the military facilities and
installations for their continued use as airports and aviation-related purposes.
"It is the intent of the Legislature and the commitment of the local authorities
to ensure that the existing airfields at both Norton Air Force Base and George Air
Force Base are protected, developed, and enhanced as civil aviation public use
airports. Therefore, the joint powers authorities authorized by this section should
make every reasonable effort to guarantee that these vital airport facilities are
retained for general aviation use now and into the future.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In October of 1989, VVEDA was formed as a joint powers agency (see Gov. Code,
§§ 6500-6522) for the purpose of redeveloping GAFB under the terms of Health and Safety Code
section 33320.5. VVEDA currently consists of the communities of Hesperia (population 58,047),
Apple Valley (population 52,065), and Victorville (population 53,664), and the County of San
Bernardino (population approximately 1,500,000). Although it originally had intended to join and
has been invited to do so, Adelanto (population 12,039) has not joined VVEDA. Victorville has
since annexed the 5075 acres of GAFB previously located within unincorporated territory.
B. Pending Litigation
The application for leave to sue herein sets forth six lawsuits filed by Adelanto
regarding VVEDA's legislative franchise to redevelop GAFB. We have also been apprised of a
lawsuit wherein Adelanto is attempting to condemn the water rights to GAFB. The lawsuits
involving Adelanto and VVEDA raise a number of legal issues in addition to whether VVEDA has
the sole and exclusive right to redevelop GAFB, such as whether Adelanto has the authority to
expend funds to redevelop territory outside its jurisdictional boundaries (see Health & Saf. Code,
3. 93-906
§ 33120) or has the authority to expend "tax increment funds"3 to attempt to acquire and redevelop
that portion of GAFB which is outside of Adelanto (see Cal. Const., art. XVI, § 6; Health & Saf.
Code, §§ 33670, 33678).
We believe that at least two pending lawsuits present the same factual and legal
issues as are presented in the instant application for leave to sue. In Adelantans For Adelanto v. City
of Adelanto, San Bernardino Superior Court No. VCV001989, taxpayers have brought suit pursuant
to the provisions of section 526a of the Code of Civil Procedure. The plaintiffs seek to recoup $4.2
million that Adelanto has expended in its attempt to acquire and redevelop GAFB. The complaint
alleges that these expenditures were ultra vires in that Adelanto had no authority to exercise any
redevelopment jurisdiction over GAFB or any territory outside of its city limits. The superior court
has issued a preliminary injunction which states in part as follows:
"IT IS ORDERED THAT:
"1. During the pendency of this action or until further order of this Court,
defendants City of Adelanto, the Adelanto Redevelopment Agency, Patricia
Chamberlaine, Michael Sakamoto, Mary Scarpa, the City Council of the City of
Adelanto, Harold L. Smith, Ernie Scott, Judith A. Crommie (the `Adelanto
Defendants'), their agents, employees, representatives, and all persons acting in
concert or participating with them, are enjoined from using or loaning for use,
directly or indirectly, any tax increment revenues or redevelopment funds of the
Adelanto Redevelopment Agency (a) in connection with efforts to acquire, reuse or
redevelop George Air Force Base (`GAFB') or other areas outside of the territorial
jurisdiction of the Adelanto Redevelopment Agency, including, but not limited to,
paying attorneys, planners, lobbyists, contractors, or consultants to prepare or extend
offers to purchase GAFB, to prepare reuse or redevelopment plans for GAFB, to
lobby government officials to award GAFB to Adelanto, or to qualify Adelanto to
sponsor an airport on GAFB, or (b) to support litigation concerning the disposition,
acquisition, annexation, redevelopment, or reuse of GAFB or other areas outside of
the territorial jurisdiction of the Adelanto Redevelopment Agency, including, but not
limited to, paying attorneys to initiate and prosecute lawsuits seeking to invalidate
redevelopment or reuse plans for GAFB, seeking to invalidate or annul annexation
of GAFB, seeking to prevent or set aside the acquisition of GAFB, or pursuing or
participating in appeals of lawsuits involving any of these matters."
It is patent that this lawsuit raises issues concerning Adelanto's powers to acquire and redevelop
GAFB and to prevent VVEDA's legislative grant to do so.
In County of San Bernardino v. Redevelopment Agency of Adelanto, Riverside
Superior Court No. 242794, the county seeks the return of all public funds allegedly expended
illegally by Adelanto. In its complaint the county alleges that "[n]one of defendants' expenditures
to acquire George Air Force Base are authorized by law, and each such expenditure constitutes the
illegal expenditure of Adelanto redevelopment funds." Again, it is patent that this lawsuit raises
3
Tax increment funds are those which represent the difference between taxes collected upon the
original assessed value of property within a project area and the increased assessed values arising
by virtue of the redevelopment plan. (See Health & Saf. Code, § 33670.)
4. 93-906
issues concerning the redevelopment powers of Adelanto and its attempt to oust VVEDA of its
franchise to redevelop GAFB.4
Generally speaking, a section 803 proceeding is maintained where it is the only
available remedy. (San Ysidro Irrigation District v. Superior Court (1961) 56 Cal. 2d 708, 713-715;
International Association of Fire Fighters v. City of Oakland (1985) 174 Cal. App. 3d 687, 693-698;
Oakland Municipal Improvement League v. City of Oakland (1972) 23 Cal. App. 3d 165, 169;
Hallinan v. Mellon (1963) 218 Cal. App. 2d 342, 344-348; Wilson v. San Francisco (1960) 186
Cal. App. 2d 603, 611.) Here, at least two lawsuits are currently pending that raise the primary issue
of whether Adelanto or VVEDA has the authority to redevelop GAFB. We conclude that another
lawsuit involving the same issue would not be in the public interest.
Leave to sue in quo warranto to test Adelanto's right to acquire and redevelop GAFB
is denied.
*****
4
Which party will prevail upon the issues presented in these lawsuits is not for the Attorney
General to determine or consider. (See 74 Ops.Cal.Atty.Gen. 26, 29 (1991); 72 Ops.Cal.Atty.Gen.
15, 19 (1989).)
5. 93-906