Opinion
No. H035982
11-22-2011
BUILD A BETTER LA BAHIA, Plaintiff and Appellant, v. CITY OF SANTA CRUZ et al., Defendants and Respondents, BARRY SWENSON BUILDER et al., Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. CV163910)
I. INTRODUCTION
This CEQA case arises from the proposal of respondent Barry Swenson Builder (Swenson) to demolish the historic La Bahia Apartments, located in respondent City of Santa Cruz (City), and build a new 125-room hotel with meeting rooms, a spa, and other amenities. As approved by the City, the only part of the existing La Bahia structures that Swenson's project would preserve is the bell tower. To implement the project, California Coastal Commission (Coastal Commission) approval of an amendment to the local coastal plan was required.
California Environmental Quality Act, Public Resources Code section 21000 et seq. All further statutory references are to the Public Resources Code unless otherwise indicated.
Appellant Build A Better La Bahia challenged the City's approval of Swenson's project by filing a petition for a writ of mandamus in the superior court. In support of its petition, appellant argued that the environmental impact report (EIR) was inadequate because, among other things, it did not include consideration of a reduced demolition alternative. On June 18, 2010, the trial court issued its statement of decision denying the petition for writ of mandate. Appellant filed a timely appeal.
On August 8, 2011, while the appeal was pending, the Coastal Commission denied the City's application to amend the local coastal plan. We took judicial notice of the Coastal Commission's action and requested supplemental briefing from the parties on the issue of whether the action had rendered the appeal moot. For the reasons stated below, we determine that the appeal is moot and the appropriate disposition under the circumstances of this case is to reverse the judgment with directions to the trial court to dismiss the petition for writ of mandamus as moot. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134 (Paul); Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 944-945 (Coalition for a Sustainable Future).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Swenson's Proposed La Bahia Project
The 44-unit La Bahia Apartments (La Bahia) was designed by noted architect William C. Hays and built in the Spanish Colonial Revival style in 1926. La Bahia is included in the City's Historic Building Survey and has been designated a City landmark. It has also been determined to qualify for placement in the National Register of Historic Places. La Bahia is located in the City's beachfront, near the Santa Cruz Municipal Wharf and the Santa Cruz Beach Boardwalk Amusement Park. Most recently, the La Bahia apartments have been occupied by college students and seasonal workers.
Swenson originally proposed to redevelop the La Bahia site into a 118-room hotel with a day spa and no conference facility. The original proposal, which was approved by the City in 2003, included renovation of most of the existing historic buildings. Swenson subsequently decided not to proceed with the project due to various issues, including problems with the structural integrity of the existing buildings.
Swenson submitted a revised proposal for redevelopment of the La Bahia site in 2006. The revised proposal included demolition of the existing La Bahia apartment complex and construction of a 125-room hotel, with a 5,353 square foot meeting space, a 1,125 square foot spa, a swimming pool, and an underground parking garage.
B. The Environmental Impact Reports
The City issued a notice of preparation of an EIR for Swenson's La Bahia project on March 31, 2006. The draft EIR was published and circulated for public comment in May 2007. After reviewing the public comments, the City prepared a recirculated draft EIR, which was published and circulated for public comment in April and May of 2008. As well as providing a summary of the environmental impacts of the project, the recirculated draft EIR included an analysis of three project alternatives.
Alternative 1 was the "No Project Alternative," which assumed that the proposed project would not be implemented. Alternative 2 was Swenson's original project, which the City approved in 2003. Alternative 3, the "Modified Design Alternative," modified Swenson's 2006 project proposal by removing the top floor of the east and west towers to achieve a reduced building height.
After considering the public response to the recirculated draft EIR, the City prepared a final EIR in April 2008. The final EIR included an analysis of Project Alternative 3A, which Swenson had submitted for approval after circulation of the recirculated draft EIR. Project Alternative 3A was a modification of Alternative 3.
In December 2008, after working with City staff to refine Project Alternative 3A, Swenson submitted detailed plans for Revised Alternative 3A. The new plans included demolition of the existing La Bahia structures, with the exception of the bell tower; construction of a 125-room hotel with the same meeting space, swimming pool, and underground parking garage as the original proposal; and slightly reduced square footage for the restaurant/bar/lounge and spa. The bell tower was to be stored and returned for inclusion in the new construction. Another change was the reduction of the building heights of approximately 10 feet and one story from the original project. The building heights in Revised Alternative 3A would range from two to three stories to four to five stories.
In February 2009, the City prepared a document entitled "Final EIR Additional Environmental Information" that provided analysis of Revised Alternative 3A.
C. The City's Approval of Revised Alternative 3A
On March 5, 2009, the City's Planning Commission held a public hearing on Swenson's La Bahia project. The Planning Commission recommended that the City Council certify the final EIR and approve, among other things, the required amendment of the local coastal plan. Additionally, the Planning Commission recommended that a committee be formed to review the final design, with attention to eight recommendations made by the Historic Preservation Commission.
The City Council considered the La Bahia project at the public hearing held on March 31, 2009. On April 14, 2009, the City Council certified the final EIR and adopted Resolution No. NS-28,035, which included approval of Revised Alternative 3A and as well as approval of an amendment to the local coastal plan. Resolution No. NS-28,036 also adopted April 14, 2009, states in pertinent part, "To accommodate the project, an amendment to the City's General Plan/LCP [local coastal plan] . . . is required."
D. The Petition for Writ of Mandate
The City's approval of Swenson's La Bahia project was challenged by Build a Better La Bahia, a self-described "public-interest coalition." Build a Better La Bahia filed a petition for writ of mandamus in the superior court on May 20, 2009, in which the group sought a peremptory writ of mandate ordering the City and the City Council to set aside the approvals for the La Bahia project. Relevant here, the petition stated, "Approval of a Local Coastal Plan Amendment is still required before the project can proceed, and will be considered by the California Coastal Commission." In its points and authorities in support of the petition, Build a Better La Bahia argued that the EIR was legally inadequate because it had failed to analyze a reasonable range of alternatives that included a reduced demolition alternative, and also because the findings regarding significant environmental impacts were unsupported.
The City, the City Council and Swenson filed a joint answer to the petition and points and authorities in opposition, contending that the EIR was adequate because it analyzed a reasonable range of alternatives and the findings regarding significant impacts were supported by substantial evidence, as were the findings regarding the infeasibility of the alternatives.
E. The Trial Court's Statement of Decision and Judgment
The trial court's statement of decision denying the petition for writ of mandate was filed on June 18, 2010. The court found that the EIR included analysis of a reasonable range of alternatives to the proposed project; a reduced demolition alternative was not required; the City properly determined the demolition of the historic landmark was a significant and unavoidable impact; the design of Revised Alternative 3A would reduce the severity of the impact; the City's findings regarding significant environmental impacts were supported by substantial evidence; and the City's findings regarding the infeasibility of the project alternatives were supported by substantial evidence.
Judgment on the statement of decision was entered on June 25, 2010. Build a Better La Bahia subsequently filed a timely notice of appeal.
III. DISCUSSION
On appeal, Build a Better La Bahia contends that the trial court erred because (1) the EIR is legally inadequate since it failed to consider a reasonable range of alternatives; (2) the City's conclusions as to the significance of the environmental impacts of the approved project are not supported by substantial evidence; and (3) the City unlawfully rejected the reduced demolition alternative. As we will discuss, we will not consider the merits of the appeal because we find that the appeal is moot due to an event that occurred while the appeal was pending.
On our own motion we took judicial notice of the Coastal Commission's action of August 11, 2011, denying the "request by the City of Santa Cruz to amend the LCP [local coastal plan] to apply a new zoning district and site standards for the historic La Bahia site to facilitate development of the site as a condo-hotel with restaurant and conference facilities." (Evid. Code, § 459.) The parties have not advised this court that judicial review of the Coastal Commission's action has been timely sought as provided by section 30801.
Section 30801 provides, "Any aggrieved person shall have a right to judicial review of any decision of the commission by filing a petition for writ of mandate in accordance with Section 1094.5 of the Code of Civil Procedure, within 60 days after the decision or action has become final."
Since the record on appeal shows that the Coastal Commission's approval of the amendment to the local coastal plan was required for implementation of the La Bahia project, we asked the parties to submit supplemental briefing addressing the issue of whether the appeal must be dismissed because the August 11, 2011 action of the Commission has rendered the appeal moot.
A. The Parties' Contentions
Both parties submitted supplemental briefing in which they argue that the appeal is not moot. Build a Better La Bahia asserts in its supplemental letter brief that "[r]egardless of the Coastal Commission's actions, both the certified EIR and the project entitlements granted by the City will continue to impact development of the landmark La Bahia site unless they are ordered set aside by this Court." Further, Build a Better La Bahia believes that this court may grant effectual relief on appeal because "the City's certification of the EIR and approval of the current project's entitlements remain key prerequisites to construction of a new project and the still-proposed demolition of La Bahia." Although Build a Better La Bahia acknowledges that "neither this court nor any of the parties knows what will next occur," it maintains that it does not seek an advisory opinion because the City's approvals remain "intact and will affect future CEQA compliance . . . ."
The City and Swenson submitted a joint supplemental letter brief contending that the appeal is not moot because an actual controversy remains as to the adequacy of the EIR. According to them, "even if the City must approve modifications to the project before it can return to the Coastal Commission, the certified EIR already prepared for the Project could serve as the building block for any necessary future City environmental review of a revised Project." However, the City and Swenson acknowledged that "in light of the Coastal Commission's decision, the Project can no longer be implemented, at least in the near term, in the form that was analyzed in the EIR and approved by the City."
Alternatively, the City and Swenson request that, in the event this court determines the appeal is moot, we dispose of the appeal by reversing the judgment with directions to the trial court to dismiss the action, in accordance with the dispositions in Paul, supra, 62 Cal.2d 129 and Coalition for a Sustainable Future, supra, 198 Cal.App.4th 939.
B. Mootness
The rules governing the determination of whether an appeal is moot are well established. "It is settled that 'the duty of this court, as of every other judicial tribunal, to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot effect the matter at issue in the case before it. It necessarily follows that when, pending an appeal from a judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him [or her] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]' [Citations.]" (Paul, supra, 62 Cal.2d at p. 132; see also MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215 [case is moot when reviewing court's decision can have no practical impact].)
In the present case, the actual controversy between the parties was set forth in Build a Better La Bahia's writ petition, which sought a writ of mandate setting aside the City's approval of Swenson's La Bahia project (in the form of Revised Alternative 3A) on the ground that the EIR was legally inadequate under CEQA. Thus, the actual controversy centered on the lawfulness of the City's approval of Revised Alternative 3A and, consequently, the ability of the City and Swenson to implement that particular project.
As we have discussed, the implementation of the La Bahia project, as approved by the City, was contingent upon the Coastal Commission's approval of the City's application for an amendment to the City's local coastal plan. Resolution No. NS-28,036 states in pertinent part, "To accommodate the project, an amendment to the City's General Plan/LCP [local coastal plan] . . . is required." The City and Swenson acknowledge in their supplemental letter brief that, due to the Coastal Commission's denial of the City's application for the amendment to the local coastal plan, the La Bahia project cannot be implemented in the form approved by the City and analyzed in the EIR. Since the La Bahia project as approved by the City cannot be implemented, we find that an actual controversy no longer exists between the parties.
"The Coastal Act, adopted in 1976, requires units of local government within the coastal zone to prepare a local coastal program (LCP) in consultation with the Commission and subject to certification by the Commission. (§§ 30500, 30511, 30512, 30513.) Once certified, an LCP can only be amended with the Commission's approval. § 30514.)" (Kaczorowski v. Mendocino Board of Supervisors (2001) 88 Cal.App.4th 564, 569.)
The parties contend that an actual controversy nevertheless remains as to the validity of the EIR. We disagree. The EIR was specific to the approved La Bahia project, as statutorily required. "The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided." (§ 21002.1, subd. (a).) "An EIR shall describe a range of reasonable alternatives to the project . . . ." (Cal. Code Regs., tit. 14, § 15126.6, subd. (a).) "The degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR. [¶] An EIR on a construction project will necessarily be more detailed in the specific effects of the project . . . . " (Cal. Code Regs., tit. 14, § 15146.)
We are also not convinced that the challenge to the EIR remains an actual controversy under section 21166, as Build a Better La Bahia suggests. Section 21166 concerns the conditions under which a supplemental EIR will be required, as stated in the statute in relevant part: "[w]hen an [EIR] has been prepared for a project . . . no subsequent or supplemental [EIR] shall be required . . . , unless one or more of the following events occurs: [¶] (a) Substantial changes are proposed in the project which will require major revisions of the [EIR]. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the [EIR]. [¶] (c) New information, which was not known and could not have been known at the time the [EIR] was certified as complete, becomes available."
Under section 21166, therefore, a supplemental EIR "is a subsequent version of an EIR that revises the earlier EIR to make it adequate for a project's approval after conditions have changed." (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1397-1398.) Section 21166 is not applicable under the circumstances of the present case, where the La Bahia project approved by the City cannot be implemented due to the Coastal Commission's action and it is unknown whether a new or revised project will be proposed by Swenson.
For the same reason, we are not convinced by the argument of the City and Swenson that an actual controversy remains as to whether the EIR may "serve as the building block" for a future environmental impact analysis of a revised La Bahia project. The parties' arguments reflect no more than mere speculation that a revised La Bahia project may someday be proposed.
Consequently, it appears that the parties are implicitly requesting that this court provide an advisory opinion regarding the merits of Build a Better La Bahia's contention that the EIR is legally inadequate for several reasons, including the failure to consider a reduced demolition alternative. However, we must decline the parties' request, since " '[t]he rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court.' [Citation.]" (Salazar v. Eastin (1995) 9 Cal.4th 836, 860.)
Having determined that the appeal is moot, and also having declined to issue an advisory opinion, we turn to consideration of the appropriate disposition.
C. The Appropriate Disposition
The general rule is that "when a case becomes moot pending an appellate decision, 'the court will not proceed to a formal judgment, but will dismiss the appeal.' [Citations]." (Paul, supra, 62 Cal.2d at p. 134.) It is also the general rule that "the involuntary dismissal of an appeal leaves the judgment intact." (In re Jasmon O. (1994) 8 Cal.4th 398, 413.) Swenson and the City have requested that in the event this court determines that the appeal is moot, our disposition not leave the judgment intact, but instead reverse the judgment with directions to the trial court to dismiss the action, in accordance with the dispositions in Paul, supra, 62 Cal.2d 129 and Coalition for a Sustainable Future, supra, 198 Cal.App.4th 939. Build a Better La Bahia has not advised this court of any objections to the proposed disposition.
In Paul, the California Supreme Court noted that former Code of Civil Procedure section 955 provided that " '[t]he dismissal of an appeal is in effect an affirmance of the judgment or the order appealed from . . . ." (Paul, supra, 62 Cal.2d at p. 134.) Determining that the basis for the judgment in the case before it "had disappeared," the Paul court further determined that "we should 'dispose of the case, not merely of the appellate proceeding which brought it here.' [Citations.] That result can be achieved by reversing the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions to the court to dismiss the proceeding. [Citations.] Such a reversal, of course, does not imply approval of a contrary judgment, but is merely a procedural step necessary to a proper disposition of this case." (Ibid.)
In 1968, Code of Civil Procedure section 955 was repealed and replaced with Code of Civil Procedure section 913, which provides that "[t]he dismissal of an appeal shall be with prejudice to the right to file another appeal within the time permitted, unless the dismissal is expressly made without prejudice to another appeal." (Stats. 1968, ch. 385, § 2, p. 811.) Although the statutory language regarding the effect of the dismissal of an appeal has changed, courts have continued to follow the ruling in Paul that dismissal of an appeal as moot constitutes an affirmance of the judgment. (See In re Jasmon O., supra, 8 Cal.4th at p. 413.)
Courts have also continued to apply the rule set forth in Paul that " ' "[w]here an appeal is disposed of upon the ground of mootness and without reaching the merits, in order to avoid ambiguity, the preferable procedure is to reverse the judgment with directions to the trial court to dismiss the action for having become moot prior to its final determination on appeal. [Citations.]" [Citations.]' [Citation]." (Giles v. Horn (2002) 100 Cal.App.4th 206, 229; see also Coalition for a Sustainable Future, supra, 198 Cal.App.4th at p. 944-945; Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1585-1586; San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 404; County of San Diego v. Brown (1993) 19 Cal.App.4th 1054, 1090; In re Marriage of McFarlane (1992) 8 Cal.App.4th 247, 258; Lee v. Gates (1983) 141 Cal.App.3d 989, 992-994.)
We determine that a disposition under the rule of Paul and its progeny, rather than a simple dismissal of the appeal, is appropriate in the present case. "Reversal with directions to the trial court to dismiss is the equivalent of dismissal of the appeal, but avoids the ambiguity of the latter procedure which does not dispose of a subsisting trial court judgment in a case wherein the issues are moot." (Bell v. Board of Supervisors (1976) 55 Cal.App.3d 629, 637.) Having concluded that the appeal is moot, and also having declined to reach the merits, we will appropriately avoid impliedly affirming the judgment where the propriety of the City's approval of the La Bahia project was not fully litigated. (See Coalition for a Sustainable Future, supra, 198 Cal.App.4th at pp. 944-945.)
IV. DISPOSITION
The judgment is reversed and the matter is remanded with directions to the trial court to dismiss the petition for writ of mandamus as moot. The parties shall bear their own costs on appeal.
BAMATTRE-MANOUKIAN, ACTING P. J.
WE CONCUR:
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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