Filed 2/10/98 Modified and Certified for Partial Pub. 2/27/98 (order attached)

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, David A. Workman, Judge. Affirmed.

Joan Cooper, in pro. per., for Plaintiff and Appellant.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Richard M. Frank, Senior Assistant Attorney General, Alan V. Hager, Supervising Deputy Attorney General and Terry T. Fujimoto, Deputy Attorney General, for Defendants and Respondents Santa Monica Mountains Conservancy and Mountains Recreation and Conservation Authority.

De Witt W. Clinton, County Counsel and Helen S. Parker, Principal Deputy County Counsel for Defendant and Respondent County of Los Angeles.

Gibson, Dunn & Crutcher, Gary L. Justice and Shiela A. Caudle for Real Party in Interest and Respondent.

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Joan Cooper appeals the trial court’s dismissal of her petition for a writ of mandate. She challenges the Mountains Recreation and Conservation Authority’s (Authority) purchase of 662 acres of land in Topanga Canyon maintaining the Authority overpaid for the parcel, violated the California open meeting law, popularly known as the Ralph M. Brown Act or the Brown Act (Gov. Code, § 54950 et. seq.), and the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), and exceeded its powers under its joint powers agreement. She also contends the Los Angeles County Board of Supervisors improperly allocated funds under Proposition A for the purchase. We find no error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant, Joan Cooper is a taxpayer residing in Topanga Canyon, the site of the property at issue.

Respondents include: (1) the Santa Monica Mountains Conservancy (Conservancy), an entity governed by a board composed of eight voting members and two ex officio members within the Resources Agency (Pub. Resources Code, § 33200 et seq.); (2) the Authority, a joint public entity created pursuant to a joint powers agreement between the Conservancy and the Conejo and Rancho Simi park districts (Gov. Code, § 6500 et seq.); and (3) the County of Los Angeles (County), a public entity.

Real party in interest, Canyon Oaks Estates is a limited partnership. It owned 662 acres in Topanga Canyon. This is the property involved in this appeal.

On March 10, 1994, the County’s Board of Supervisors was scheduled to consider a request by Canyon Oaks Estates to build 97 single-family residential lots on the subject property. The Board, however, did not fully evaluate the request at that time because the evening before the matter was scheduled to be considered, Canyon Oaks Estates agreed to sell the property to the Authority for $19,891,000. Supervisor Edelman waited to announce this agreement between Canyon Oaks Estates and the Authority until he heard the result of the Authority’s meeting simultaneous with the Board’s March 10th meeting.

The Authority’s board unanimously adopted a resolution authorizing purchase of the subject property. Although the meeting was regularly scheduled, the agenda did not mention the subject property.

The purchase price was based on an appraisal by the State Department of General Services, completed on March 19, 1992 and approved on June 23, 1992. The appraisal included an extensive analysis of the property, describing its characteristics, availability of utilities, encumbrances, possible and permitted uses, and a detailed valuation. The primary source of funding was Proposition A, also known as the Safe Neighborhood Parks, Gang Prevention, Tree-Planting, Senior, and Youth Recreation, Beaches and Wildlife Protection Proposition. Section 8(c) of Proposition A allocated $40 million to the Conservancy, including funds earmarked for specific projects as well as funds held by the Regional Park and Open Space District for projects approved by the Board of Supervisors.

On March 21, 1994 the Conservancy adopted a resolution to apply to the Board of Supervisors for Proposition A funds to fund the purchase of the subject property. On March 24, 1994, the Authority adopted a resolution authorizing acceptance of a grant from the Conservancy of Proposition A funds for that purpose. This time, the Authority included the subject property on its posted agenda.

The Conservancy formally applied for Proposition A funds on March 29, 1994, at a public hearing of the Board of Supervisors. After hearing public comment, the Board approved the funding. Ms. Cooper and Taxpayers for Fairness expressed their opposition to the park. Mr. Bates, a longtime Topanga Canyon resident, spoke against the purchase arguing that the price was more than the land was worth. He identified himself as a person experienced in selling land, and as recognized by the superior court as an expert witness. He stated "I’ve researched the sales in the Santa Monica Mountains for comparable sales over the last three years, and frankly there are none. . . . [¶] I will give you an estimate of value of this property of about $10,000 an acre of raw land without any entitlements. Entitlements will increase the value of the property dramatically."

On March 30, 1994, the Authority filed a notice of exemption to CEQA (Pub. Resources Code, § 21000 et seq.). The Authority determined it qualified for an exemption because acquisition of the property would "promote wildlife conservation, create a park and preserve open space." The County’s Park and Open Space District, as the lead agency, filed a notice of exemption the following day. The application stated the project was exempt because "[i]t can be seen with certainty that there is no possibility that there will be a significant effect on the environment by the acquisition of this land by the District’s activity of authorizing the approval of grant funds for park acquisition, subject to grantee’s pre-acquisition compliance with CEQA. The land to be acquired will be preserved as open space."

On April 1, 1994 a grant deed was signed and recorded transferring title from Canyon Oaks Estate to the Authority.

The Authority reaffirmed its resolution of approval at a meeting on August 19, 1994.

None of the parties sought approval of the project or funding from the Public Works Board.

Appellant and Taxpayers United for Fairness filed a petition for a writ of mandate under Code of Civil Procedure sections 1085 and 1094.5. They sought to reverse the acquisition of the subject property until the court certified an environmental impact report. Appellant and Taxpayers United for Fairness sought to enjoin development work on the subject parcel. They also requested that the payment to real party in interest not exceed the value based on an appraisal to be conducted within three months of the purchase.

The trial court dismissed the petition with prejudice. In a thoughtful judgment, the court emphasized that its decision was "based primarily upon petitioners’ failure to satisfy their burden to provide a record having substantial evidence, beyond speculation, in support of their views." The trial court also expressed its disapproval of respondents’ actions: "This decision should not be taken as an expression of approval of respondents’ actions, which in the Court’s view suggest a lighthearted and inappropriate indifference by governmental authority to complete and perfect compliance with the letter and intent of the law as it relates to provisions for participation and input of all affected members of the community."

Ms. Copper filed a notice of appeal. Appellant reiterates contentions made in the trial court arguing that the Authority: (1) paid more than fair market value for the subject property; (2) violated the Brown Act (3) failed to follow CEQA; and (4) exceeded its powers by acting without approval from the State Public Works Board. Appellant also argues that the Board of Supervisors improperly allocated funds under Proposition A for the purchase. We consider these arguments seriatim.

DISCUSSION

I

The trial court found there was substantial evidence that the Authority paid fair market value for the subject property. Appellant argues that the trial court did not consider the testimony of her "expert witness," and therefore improperly concluded the record lacked substantial evidence to find the Authority overpaid for the subject property. Appellant also maintains that it was common knowledge that property values had declined in the period between the appraisal and the purchase. Implicitly, appellant argues that the Authority improperly made a gift of public funds by overpaying for the land. (See Cal. Const., art 16, § 6 [County cannot make gift of public funds].)

We review the record to determine if there is substantial evidence to support the trial court’s finding that the Authority did not make an improper gift of taxpayers’ money. (O’Conner v. State Teachers’ Retirement System (1996) 43 Cal.App.4th 1610, 1620.) We agree with the trial court’s conclusion that appellant has failed to provide a record beyond speculation in support of her view that the Authority overpaid for the property.

The record does not demonstrate that property values declined. At the Board’s public hearing on the purchase, Mr. Bates maintained that the property was worth approximately $10,000 an acre without any entitlements and substantially more with entitlements. He neither explained whether the property contained entitlements nor provided evidentiary support for his conclusions. Nor did he provide documentation demonstrating a decline in property values. We decline appellant’s request that we take judicial notice of the decline in property values, because this "fact" is not a proper subject of judicial notice: it is neither so universally known that it cannot reasonably be the subject of dispute, nor of such common knowledge within the territorial jurisdiction of the court that it cannot reasonably be the subject of dispute. (See Evid. Code, §§ 451, subd. (f), 452, subd. (g).) Accordingly, based on the record in this case, the trial court’s finding that the Authority did not make an improper gift of taxpayers’ money is supported by substantial evidence. Specifically, the Authority paid the value suggested by the state appraisal which extensively documented the value of the land.

II

A primary purpose of the Brown Act is to facilitate public participation in local government decision making. (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 555.) The Brown Act requires that deliberations of public agencies be conducted openly. It also requires that "[a]t least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed . . . ." (Gov. Code, § 54954.2.) If a legislative body violates this provision, an individual or the district attorney can commence an action for mandamus to void the agency action. (Gov. Code, § 54960.1, subd. (a).) Prior to commencing an action for mandamus, the interested party must "make a demand of the legislative body to cure or correct the action alleged to have been taken in violation of Section . . . 54954.2 . . . . The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation." (Gov. Code, § 54960.1, subd. (b).)

Appellant argues that the purchase of the subject property is void because the Authority failed to include discussion of this item on the agenda for the March 10th meeting when it initially agreed to the purchase. But, as the Attorney General points out, there is no allegation or evidence that appellant made any demand of the legislative body to cure this action. Therefore, the alleged violation does not provide a basis for setting aside the Authority’s decision.

III

One purpose of CEQA is to "[d]evelop and maintain a high-quality environment now and in the future and take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state. (Pub. Resources Code, § 21001, subd. (a); Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 376.) Environmental impact reports help achieve this purpose. An environmental impact report identifies the environmental effects of a project and possible alternatives to mitigate or avoid those effects. (Pub. Resources Code, § 21002.1.) While filing an environmental impact report is sometimes mandatory, the Legislature has carved out several categorical exemptions to this requirement. The exemptions relevant to the present case are wildlife conservation, park creation, and preservation of open space. (Cal. Code Regs., tit. 14, §§ 15313, 15316, 15325.)

However, the exemptions are not absolute; an environmental impact statement may be required even if a project falls within one or more categorical exemptions. For example, an environmental impact report is required for a project which falls within an exemption when that project will have a significant effect on the environment likely to cause unusual circumstances. (Cal. Code Regs., tit. 14, § 15300.2, subd. (c) ); see also Cal. Code Regs., tit. 14, § 15065, subd. (a).) "A significant effect on the environment is defined as a substantial adverse change in the physical conditions which exist in the area affected by the proposed project." (Cal. Code Regs., tit. 14, § 15002, subd. (g).) An exemption is also inappropriate if the "cumulative impact of successive projects of the same type in the same place, over time is significant . . . ." (Cal. Code Regs., tit. 14, § 15300.2, subd. (b).) The former example applies to all categorically exempt projects, while the latter applies only to certain kinds of exempt projects including new construction, minor alterations to land, minor alterations in land use, information collection, and accessory structures. (Ibid.)

Appellant argues that the purchase of the property will have a significant effect on the environment and that it is part of a larger project which will have a cumulative effect on the environment. To support her argument she maintains that under Proposition A, the Authority will be required to make physical improvements on the property including building public parking and restrooms. Appellant also points out that the property is part of an 18,000 acre project, and that the Authority has widened the access point installing gates, signs, picnic tables, garbage cans, and portable toilets.

Applying the appropriate standard of review we consider "(1) whether there is any substantial evidence in light of the whole record to support the decision; and (2) whether the agency making the decision abused its discretion by failing to proceed in the manner required by law." (Association for Protection Etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 727-728.) "A party challenging an agency’s exemption decision must produce substantial evidence that the project has the potential for a substantial adverse environmental impact. . . . Mere uncorroborated opinion or rumor does not constitute substantial evidence." (Ibid.)

The evidence does not support appellant’s contentions that the subject purchase will have a significant effect on the environment or that this project is one of several successive projects likely to produce a cumulative effect. She points out no substantial adverse change and no successive projects of the same type producing a cumulative impact on the environment. In addition, the cumulative impact exception does not apply to those exemptions claimed in the present case--wildlife conservation, park creation, and preservation of open space. Appellant’s failure to produce any substantial evidence of an adverse environmental impact is fatal to her claim. (See Association for Protection Etc. Values v. City of Ukiah, supra, 2 Cal.App.4th 720, 728; see also Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 576 ["[R]ules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement."].

Finally, appellant contends that a categorical exemption is barred from use in projects located on a scenic highway. Apparently appellant is relying on Public Resources Code section 21084, subdivision (b) which provides: "No project which may result in damage to scenic resources, including, but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway designated as an official state scenic highway . . . shall be exempted from this division [CEQA] . . . ." The record, however, lacks evidence that the project will result in any damage to scenic resources or that it is located on an official state scenic highway.

IV

Appellant argues that under its joint powers agreement between the Conservancy and the park districts, the Authority is required to gain approval from the Public Works Board to acquire property. Appellant bases her argument on the fact that the Conservancy is required to obtain approval from the Public Works Board prior to acquiring land. (Gov. Code, § 15850; Pub. Resources Code, § 33203.) She does not dispute the fact that the park districts are not required to obtain approval prior to a purchase. (Pub. Resources Code, § 5782.5, subd. (b).) She presents a question of statutory interpretation, which we review de novo. (Golden Cheese Co. v. Voss (1991) 230 Cal.App.3d 547, 556.)

A joint powers agency "is subject to the restrictions upon the manner of exercising the power of one of the contracting parties, which party shall be designated by the agreement." (Gov. Code, § 6509, emphasis added.) Section 4.2 of the agreement between the Conservancy and park districts states "powers are subject to the restrictions upon the manner of exercising the powers as imposed upon the Conejo and Rancho Simi Districts, . . ." (Emphasis added.) Under this agreement, the Authority is subject to the same restrictions as the park districts. Seeking approval from the Public Works Board is not among those restrictions.

V

Appellant argues the Board of Supervisors improperly allocated Proposition A funds for the purchase of the subject property. This argument lacks merit. Section 8(c)(5) of Proposition A grants the Board of Supervisors discretion to disburse the funds. That provision states: "Funds provided to the Conservancy shall be held by the District and disbursed upon application by the Conservancy,

. . . expended solely for projects approved by the Board of Supervisors, pursuant to such criteria as the Board of Supervisors may in its discretion adopt;

. . ." (Emphasis added.) There is no evidence that the Board abused its discretion under the Proposition.

DISPOSITION

The judgment is affirmed.

EPSTEIN, J.

We concur:

VOGEL (C.S.), P.J.

HASTINGS, J.

[NO CHANGE IN JUDGMENT]

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE COURT:*

It is ordered that the opinion filed herein on February 10, 1998, be modified in the following particulars:

1. On page 2, at the end of the first full paragraph, add the following sentence:

In the published portion of this opinion, we conclude that

Authority did not exceed its power under the joint powers agreement.

The other issues are considered in the unpublished portion of the

opinion.

2. This opinion is certified for partial publication as to the following:

Publish only the first full paragraph on page 2, the first two

paragraphs of Factual & Procedural Background, part IV of

Discussion, and the Disposition.

3. There is no change in the judgment.

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*VOGEL (C.S.), P.J., EPSTEIN, J., HASTINGS, J.