Opinion
F087220
10-08-2024
MIAMI CREEK COALITION, Plaintiff and Appellant, v. ALMANAC HOLDINGS, LLC et al., Defendants and Respondents.
Greenfire Law, Rachel S. Doughty, and Jennifer Rae Lovko for Plaintiff and Appellant. Downey Brand, Tina Thomas, Amy R. Higuera, Breana M. Inoshita, and Samuel D. Bacal-Graves for Defendants and Respondents Almanac Holdings, LLC and Yosemite Basecamp, LLC. Lozano Smith, Sloan R. Simmons, Regina A. Garza, and Kelly M. Rem for Defendants and Respondents County of Madera and Madera County Community and Economic Development Department.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. No. MCV088338 Michael J. Jurkovich, Judge.
Greenfire Law, Rachel S. Doughty, and Jennifer Rae Lovko for Plaintiff and Appellant.
Downey Brand, Tina Thomas, Amy R. Higuera, Breana M. Inoshita, and Samuel D. Bacal-Graves for Defendants and Respondents Almanac Holdings, LLC and Yosemite Basecamp, LLC.
Lozano Smith, Sloan R. Simmons, Regina A. Garza, and Kelly M. Rem for Defendants and Respondents County of Madera and Madera County Community and Economic Development Department.
OPINION
HILL, P. J.
Appellant Miami Creek Coalition (Miami Creek), an unincorporated association of Madera County residents, appeals the dismissal after demurrer of its complaint against respondents, County of Madera, Madera County Community and Economic Development Department (collectively Madera County), Almanac Holdings, LLC (Almanac), and Yosemite Basecamp, LLC (Basecamp). Miami Creek seeks to stop the development of a parcel of land in the County of Madera, alleging the development violates the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), Madera County's zoning laws, and that the development constitutes a public nuisance. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Miami Creek filed the verified complaint and petition for writ of mandamus underlying this appeal on December 27, 2022. As this case was dismissed on demurrer, the allegations contained in Miami Creek's complaint provide the core factual allegations relevant to this appeal.
At a general level and according to the complaint, Almanac and Basecamp constructed a resort motel consisting of variously sized cabins on a property within the County of Madera known as the Sierra Meadows Resort and Event Center (Sierra Meadows). This development was allegedly completed without a valid conditional use permit (or CUP) as required by Madera County and in violation of CEQA. Miami Creek raises concerns that its only paved residential access road and its sole residential water supply (MD-46) are directly and negatively impacted by this construction and by future construction plans.
Providing a historical account of the property and the actions leading to the lawsuit, the complaint notes that Madera County first issued CUP 84-69 to previous owners of Sierra Meadows in 1985. This permit authorized a golf course with a clubhouse, swimming pool, horse trails, and a 600-space recreational vehicle park that would be developed in phases. The original permit contained 18 conditions, and additional conditions were added through amended site plan review (SPR) 88-9 sometime later in the 1980's. During that same decade, some of the recreational vehicle park was built, totaling 54 spaces.
No additional details were disclosed about the property until it was purchased in either 2014 or 2015 by Almanac. At that point, the golf course was closed and the recreational vehicle park was abandoned. In its place, a 28-cabin resort was opened. The complaint alleges that the current use of the property "as a resort with permanent structures was never considered or approved by CUP 84-69 or SPR 88-9" and no one "has ever obtained a valid certificate of occupancy or annual operating permits" as required to operate a motel.
Then, in June 2020, "Madera County, acting in its discretion, issued grading permit 20-0035-GR, but no CUP, for expansion of Sierra Meadows that would allow for 27 additional rental cabins, including at least several with kitchens and bathrooms requiring sewer and water hook-ups, additional propane tanks, an additional community bathroom, and a laundry facility for housekeeping and guests. The grading permit refers to the nearly 40-year[-]old CUP 84-69 and states that it incorporates the conditions placed on that CUP." Following this, in "June 2022[,] Madera County, acting in its discretion, issued Underground Fire Main Permit No. 21-0822-FR to Almanac, approving the connection of new underground water lines to MD-46 to provide fire hydrants, apparently for the expansion of [] Sierra Meadows."
The complaint alleges that Madera County made no effort to notify the public of the expansion to Sierra Meadows and never issued a new conditional use permit for the expanded facilities. Similarly, Madera County allegedly did not conduct an environmental review or otherwise declare the project was exempt from CEQA.
Based on this lack of action, Miami Creek "did not become aware of the Sierra Meadows expansion until Spring 2022 when grading activities commenced and became visible, and which [Miami Creek] originally perceived as unpermitted work." Miami Creek eventually made a public records request, at which time it learned of the 2020 grading and 2022 fire main permits. In November 2022, Miami Creek notified Madera County of its concerns regarding the construction. It did not receive a response and filed suit on December 27, 2022.
In addition to this factual background, the complaint contains detailed recitations related to "Madera County Code Land Use Provisions" and details how "Respondents Ignored Significant Impacts to the Environment" (boldface omitted). Relevant to the latter claims, the complaint recites provisions of the Madera County Code that declares any building erected or maintained in conflict with the provisions of the Madera County Code "shall be and same is declared to be unlawful and a public nuisance" and that" '[a]ny violation of or failure to comply with any provision of the Madera County Code' is a nuisance."
When discussing the CEQA statutes, Miami Creek added some additional factual claims. These include allegations that the "potential impacts of a motel are great," in part because the "potential impact of dozens, or perhaps hundreds of new water and sewer connections has never been examined by the County," nor has "additional water use required for housekeeping services and more permanent occupancy." The allegations further note the original conditional use permit was "approved prior to the residential development of the area" and that more "than a hundred homes now occupy the surrounding area and most rely on the same sole access road and water system as the proposed resort. Wildfire and drought now plague the County in a way that they did not in the 1980's."
Focusing on more concrete statements of concern, the complaint alleges the "existing water supply to MD-46 is already stressed and inadequate to support the proposed expansion." Madera County apparently recognized that "three new wells and an additional storage tank would be necessary to meet the additional demand, but nevertheless approved permits without requiring these improvements" or otherwise examining the issue. Similarly, the "adequacy of existing access roads and evacuation routes" is raised as a concern because the project is adjacent to a high[-]risk fire area and increases "the need for a paved and legally compliant secondary access road," given the current secondary access road "is a dirt road that fails to comply with the County's minimum fire safety standards." And the adequacy of the septic plan is also noted, as groundwater "is the primary source of drinking water for area residents" and the project's septic system has not been determined to be adequate.
Finally, the complaint notes that conditions "have changed substantially in the period since the expired CUP 84-69 was approved" and there is much new information to consider. The complaint states that continuing to issue permits under the conditional use permit could authorize "as many as 600 rental cabins" and "allow a massive trailer park to be approved under a 40-year-old CUP that envisioned [a recreational vehicle] park that never materialized."
On these allegations, the complaint identifies three causes of action. The first cause of action, a writ of mandate brought under CEQA, alleges Madera County failed to assess the project under CEQA. The second cause of action, a writ of mandate brought to enforce the Madera County Code, alleges that approving permits without a valid conditional use permit was improper because Madera County had failed to demonstrate an adequate water supply exists, failed to satisfy fire standards for roads and construction, and failed to issue a valid conditional use permit for the current use. These assertions relied on the claim that CUP 84-69 had expired. The third cause of action, brought against Almanac and Basecamp, asserts the development of the property "constitutes a continuing public nuisance" as defined by the Madera County Code and the Civil Code. Miami Creek alleges its members "have been, and will be, specially damaged" because "the resulting unauthorized land use impacts their use and enjoyment of property located adjacent to or very near Sierra Meadows through unauthorized water use threating [sic] members' own water source, unauthorized discharges to groundwater threatening members' water quality, and increased fire risk due to reliance of members on the same evacuation routes as guests at Sierra Meadows."
The Demurrer, Ruling, and Appeal
Respondents filed a demurrer to the complaint, raising three grounds for dismissing each cause of action. For the CEQA claim, the demurrer alleged the two underlying permits were not subject to CEQA and that even if they were, the claims were untimely. For the zoning law claim, the demurrer argued that the cause of action was barred by two different statutes of limitations and that an indispensable party had not been included. And for the public nuisance claim, the demurrer asserted the claim was untimely, the pleadings did not show a specialized injury needed to demonstrate standing, and that the claim could not be predicated on a violation of the Madera County Code. Miami Creek opposed the demurrer and, in doing so, requested that the trial court take judicial notice of several documents, including an unpublished trial court order from a CEQA case arising in Alameda County.
After taking additional briefing and holding a hearing, the trial court sustained the demurrer without leave to amend. On the first cause of action, the court concluded that CEQA was applicable to the challenged permits but that the action was time-barred. On the second cause of action, the court found both that the action was time-barred and that an indispensable party had not been named. On the third cause of action, the court determined the action was timely and supportable but found that Miami Creek had failed to plead the special injury required to maintain standing for a public nuisance claim. The court further denied the request for judicial notice related to the Alameda action and eventually dismissed the current action without leave to amend.
This appeal timely followed.
DISCUSSION
In this appeal, Miami Creek contends the trial court wrongly sustained the demurrer as to all three causes of action and further argues it can state a valid claim in all three instances. We therefore review each claim as argued and then consider whether leave to amend should have been granted.
Standard of Review
"A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558.) "When a demurrer is sustained, appellate courts conduct a de novo review to determine whether the pleading alleges facts sufficient to state a cause of action under any possible legal theory." (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1242.) "When conducting this independent review, appellate courts 'treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law.'" (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 552.) We may also consider matters subject to judicial notice and will affirm the judgment if any ground for the demurrer is well taken. (Ramirez v. Tulare County Dist. Attorney's Office (2017) 9 Cal.App.5th 911, 924.)
"[A] reviewing court must determine whether there is a reasonable possibility that a pleading as to which a demurrer has been sustained without leave to amend is capable of amendment to cure the defect. And it is the plaintiff who bears the burden of establishing that it is." (Berg &Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1048.) We review the trial court's decision for an abuse of discretion. (Id. at p. 1035.)
Miami Creek's CEQA Claim Is Untimely
Miami Creek's first cause of action seeks a writ of mandate against Madera County alleging a violation of CEQA on the premise that the expansion of Sierra Meadows constituted a project for which CEQA review was required. The parties dispute whether the permits issued in this case were ministerial or discretionary in nature and, if CEQA review is appropriate, whether the action in this case is timely. For the purposes of this analysis, we will assume without deciding that Miami Creek has stated a valid CEQA claim. In that context, Miami Creek's CEQA claim is untimely.
Applicable Law
"Statutes of limitations are designed 'to prevent stale claims, give stability to transactions, protect settled expectations, promote diligence, encourage the prompt enforcement of substantive law, and reduce the volume of litigation.'" (Citizens for a Green San Mateo v. San Mateo County Community College Dist. (2014) 226 Cal.App.4th 1572, 1588.) CEQA expressly provides unusually short statutes of limitations on filing court challenges under the act, reserving "its very shortest limitations periods for cases where the agency has given public notice, in a form required or permitted by the statute, of an agency act or decision that is relevant to CEQA's statutory scheme." (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500; see Cal. Code Regs., tit. 14, § 15000 et seq. (CEQA Guidelines), § 15112, subd. (a).)
Relevant to this case, an "action or proceeding alleging that a public agency is carrying out or has approved a project that may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment shall be commenced within 180 days from the date of the public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project." (Pub. Resources Code, § 21167, subd. (a).)
Under this statute, commencement of a project is considered constructive notice of an agency's decision to approve that project. (Stockton Citizens for Sensible Planning v. City of Stockton, supra, 48 Cal.4th at p. 502.) In limited circumstances, however, commencement of a disclosed project does not provide notice of undisclosed changes to that project which would otherwise require new environmental review. (See Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 938-940 (Concerned Citizens of Costa Mesa) [statute of limitations covering suit challenging substantial undisclosed changes to permitted theater not triggered by commencement of originally permitted project].)
Starting Grading Activities Commenced the Project
In this case, the core dispute regarding the triggering date for the statute of limitations is whether Miami Creek had constructive notice of the disputed project at the point it discovered construction had begun under the grading permit. According to the complaint, the grading permit issued in 2020 would "allow for 27 additional rental cabins, including at least several with kitchens and bathrooms requiring sewer and water hook-ups." In "Spring 2022 when grading activities commenced and became visible," Miami Creek became "aware of the Sierra Meadows expansion" through what it "perceived as unpermitted work." However, Miami Creek only learned of Madera County's "approval of the expansion of Sierra Meadows" after "obtaining a copy of the grading permit and underground hydrant permits through record requests to the County."
As the trial court recognized, Miami Creek's statement that grading activities commenced and became visible in Spring 2022 meant that the project commenced no later than June 20, 2022, the last day of Spring that year. Under such an understanding, Miami Creek was required to file their complaint no later than December 17, 2022, making the December 27, 2022 filing untimely.
Miami Creek challenges this analysis, arguing that Concerned Citizens of Costa Mesa and certain cases applying that ruling[ demonstrate that where "no formal decision has been made nor the public provided actual notice, commencement is not directly tied to the beginning of construction. The petitioner must be aware that such construction is connected to a project that implicates environmental review under CEQA." We do not agree.
One of the cases cited by Miami Creek was also the subject of a request for judicial notice to the trial court. The case relates to an order issued by an Alameda County trial court in an unrelated CEQA case. Miami Creek admits the order is not precedential but contends judicial notice was appropriate because the case is illustrative of how to apply CEQA's statutes. Miami Creek then cites the order as authority for several principles in its briefing. This court finds no illustrative principles in the case or in its use by Miami Creek and no error in the trial court denying the request for judicial notice. Relatedly, the court DENIES respondents' May 7, 2024 request for judicial notice of other documents from the Alameda case as irrelevant. The court also DENIES Miami Creek's May 29, 2024 request for judicial notice of four documents arising after the trial court's order, detailing continuing discussions between respondents regarding continuing development of Sierra Meadows, as irrelevant. None of the documents offered by either party affect the analysis of this court with respect to the issues raised on appeal.
Nothing in the cases properly cited by Miami Creek indicate that actual knowledge of a CEQA qualifying project is required before the statute of limitations is triggered. Rather, as explained in Concerned Citizens of Costa Mesa, "the initiation of the project provides constructive notice of a possible failure to comply with CEQA" and serves as a substitute for proper public notification. (Concerned Citizens of Costa Mesa, supra, 42 Cal.3d at p. 939.) To protect against hidden changes, however," 'commencement of the project' in subdivision (a) of section 21167 [of the Public Resources Code] refers to the project described in the [environmental impact report] and approved by the agency." (Ibid.) If changes are then made, "an action challenging the agency's noncompliance with CEQA may be filed within 180 days of the time the plaintiff knew or reasonably should have known that the project under way differs substantially from the one described in the [environmental impact report]." (Ibid; see Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429, 436 [existing notice and environmental impact report did not disclose change in building height and thus statute of limitations did not begin to run until plaintiffs obtained notice of the change].) Accordingly, in a situation where there is no existing approved project and construction on a project commences, the default rule that commencing the project provides constructive notice of a possible failure to comply with CEQA controls, regardless of a party's actual knowledge of the existence or scope of the project triggering that construction.
Such is the case here. The facts pleaded by Miami Creek cannot be read to indicate that Miami Creek lacked actual or constructive notice of a potential failure to comply with CEQA at the point construction commenced and was noticed. Miami Creek affirms that upon noticing the construction it became aware of the planned expansion of Sierra Meadows and believed that expansion to be unpermitted. And there is no allegation of an existing approved plan which would have potentially masked changes that failed to comply with CEQA at the time grading activities commenced. Upon commencement of the grading activities, then, Miami Creek had at least constructive notice of the CEQA violation and the statute of limitations began to run. This occurred, according to Miami Creek's own pleadings, no later than June 20, 2022, making the December 27, 2022 filing untimely.
Miami Creek's Zoning Law Claim Is Untimely
Miami Creek's second cause of action seeks a writ of mandate against Madera County, alleging a violation of California's planning and zoning laws, Government Code section 65000 et seq., on the premise that Madera County's "approval of permits for the project without a valid CUP" was improper. The allegations provide that the uses for which the permits were authorized "were never identified in CUP 84-69" and that "CUP 84-69 has expired." Miami Creek contends that the 90-day statute of limitations contained in Government Code section 65009 and the 30-day statute of limitations contained in Madera County Code section 1.28.030 do not apply to this cause of action because Miami Creek "is not attacking any zoning or planning decision" and, further, that the Department of Housing and Community Development is not an indispensable party to this claim. This court finds Government Code section 65009 applicable and therefore does not reach the other arguments.
Applicable Law
Government Code section 65009, subdivision (c)(1)(E) provides in relevant part: "[N]o action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body's decision: [¶] ... [¶] (E) To attack, review, set aside, void, or annul any decision on the matters listed in [Government Code] Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit." Government Code section 65901 states that a zoning board "shall hear and decide applications for conditional uses or other permits when the zoning ordinance provides therefor."
Miami Creek's Claim Is Untimely
There is no dispute in this case that if Government Code section 65009 is applicable, the second cause of action is precluded as untimely. Having failed to meet CEQA's 180-day statute of limitations, Miami Creek makes no argument that it could meet the shorter 90-day statute of limitations contained in Government Code section 65009. Rather, Miami Creek contends the statute is inapplicable to the claim raised. Miami Creek contends it "is not attacking any zoning or planning decision," but rather "seeks to enjoin and restrain any further development of the Project until such time as the County complies with its mandatory duties under various zoning and planning laws and issues a conditional use permit." We do not agree this framing avoids the requirements of Government Code section 65009.
In Citizens for Beach Rights v. City of San Diego (2017) 17 Cal.App.5th 230 (Citizens), the City of San Diego obtained a site development permit that, by its own terms, should have expired in or around 2009. (Id. at p. 232.) However, the project related to that permit did not find funding until sometime around 2015. (Id. at p. 233.) At that time, the construction company hired to complete the project requested and was granted a building permit, which could not legally be issued unless all other required permits had been obtained, including the disputed site development permit. (Id. at p. 234 &fn. 4.) More than 90 days after construction started, Citizens filed suit, alleging Government Code section 65009 did not bar the suit because the underlying claim was not a challenge to any issued permit, but rather an assertion the site development permit had expired. (Citizens, at pp. 236-238.)
The Court of Appeal in Citizens applied the limitations period in Government Code section 65009 despite this argument. Finding there "is no legal authority to support [a] narrow interpretation of what constitutes a decision by an agency," the court explained that "the purpose of Citizens' lawsuit is to stop construction by challenging the City's decision in 2015 to find that the [site development plan] remained valid" and thus "cannot plead around the statute of limitations by avoiding mention of the City's actions and instead referring only to the language of the [site development plan]." (Citizens, supra, 17 Cal.App.5th at p. 238.)
We see no difference in the situation before this court. Miami Creek attempts to cease construction on a project for which permits were issued under a claim that, although those permits are not part of the challenge, they should not have been issued and that all future work at the site should cease because a relevant underlying permit, a conditional use permit, has expired. However, for Madera County to issue the grading and fire main permits, they were required to conclude that such work was consistent with the existing conditional use permit. Miami Creek's own claim confirms a claim that Madera County "improperly issued permits for uses that were never identified in CUP 84-69" in part because a "CUP can only authorize the existing and proposed uses that are identified in the permit."
Thus, to the extent Miami Creek's challenge is, as stated in the complaint, to improperly issued permits, its claim is triggered by the issuance of those permits regardless of whether Miami Creek seeks to frame the issue around an invalid underlying conditional use permit. Further, to the extent Miami Creek is attempting to challenge future construction, it runs into similar problems. If that construction does not require permits from Madera County, it is unclear how its current claim against Madera County can provide relief. And to the extent such future work requires permits from Madera County, such claims appear to not be ripe. (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171-174 [claim that future permits issued will violate law held not to be sufficiently definite and concrete to support judicial review].) We therefore conclude that Government Code section 65009 is applicable to the challenge raised in this case-that construction is proceeding on an expired or invalid conditional use permit-and, therefore, that the second cause of action was properly dismissed as time-barred.
Miami Creek's Public Nuisance Claim
Miami Creek's third cause of action alleges Almanac and Basecamp's actions constitute a public nuisance. On appeal, Miami Creek contends it properly alleged facts sufficient to support this claim and, specifically, that the facts alleged are sufficient to demonstrate that Miami Creek has suffered the type of specific injury required by statute for such claims. We do not agree that Miami Creek has alleged sufficient facts to maintain this cause of action.
Applicable Law
"Civil Code section 3479 defines a nuisance as 'anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . .' A nuisance may be a public nuisance, a private nuisance, or both. [Citation.] 'A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.' (Civ. Code, § 3480.) Every other nuisance is private. (Civ. Code, § 3481.)" (Newhall Land &Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 341.)
"A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise." (Civ. Code, § 3493.)" 'A private nuisance is a civil wrong based on disturbance of rights in land while a public nuisance is not dependent upon a disturbance of rights in land but upon an interference with the rights of the community at large.' [Citation.] Thus, a plaintiff may maintain a private nuisance action based on a public nuisance when the nuisance causes an injury to plaintiff's private property, or to a private right incidental to such private property. [Citation.] Further, where the nuisance is a private as well as a public one, there is no requirement that the plaintiff suffer damage different in kind from that suffered by the general public." (Newhall Land &Farming Co. v. Superior Court, supra, 19 Cal.App.4th at p. 342.)
"In applying the rule articulated in [Civil Code] section 3493 to a particular case, cognizance must be taken as to whether the public nuisance alleged is also a private nuisance, since this factor is important in determining how the statute is to be applied. The difference becomes important in view of the fundamental principle that a private nuisance is a civil wrong based on disturbance of rights in land while a public nuisance is not dependent upon a disturbance of rights in land but upon an interference with the rights of the community at large. [Citation.]
"Where the nuisance alleged is not also a private nuisance as to a private individual[,] he does not have a cause of action on account of a public nuisance unless he alleges facts showing special injury to himself in person or property of a character different in kind from that suffered by the general public. [Citations.] Under this rule the requirement is that the plaintiff's damage be different in kind, rather than in degree, from that shared by the general public. [Citations.] Where, on the other hand, the nuisance is a private as well as a public one, there is no requirement that the plaintiff suffer damage different in kind from that suffered by the general public and he 'does not lose his rights as a landowner merely because others suffer damage of the same kind, or even of the same degree, . . .'" (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124.)
"In the usual case,' "when the wrongful act is of itself a disturbance or obstruction only to the exercise of a common and public right,"' our state law has long recognized' "the sole remedy is by public prosecution,"' because' "the act of itself does no wrong to individuals distinct from that done to the whole community."' [Citation.] However,' "when the alleged nuisance would constitute a private wrong by injuring property or health, or creating personal inconvenience and annoyance, for which an action might be maintained in favor of a person injured, it is none the less actionable because the wrong is committed in a manner and under circumstances which would render the guilty party liable to indictment for a common nuisance." '" (Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th 292, 325-326.)
Miami Creek Has Not Alleged a Special Injury
Miami Creek's third cause of action is designated as a continuing public nuisance and a nuisance per se. As such, a valid claim requires either a direct injury to Miami Creek sufficient to show the public nuisance is also a private nuisance or facts sufficient to meet the requirement from Venuto v. Owens-Corning Fiberglas Corp. of "facts showing special injury to himself in person or property of a character different in kind from that suffered by the general public." (Venuto v. Owens-Corning Fiberglas Corp., supra, 22 Cal.App.3d at p. 124.)
Miami Creek contends it can identify "health-related, wildlife-related, water-related, and fire-related injuries" that would support a public nuisance claim and that it has "suffered special injuries related to fire-related and water-related injuries that are both different in kind from the public and which impact [Miami Creek's] property rights." In its briefing, Miami Creek focuses on allegations that road access will be limited and residential water supplies drained if future expansion occurs. Miami Creek points to contentions that there is only one paved residential access road to the area and that expansion will cause congestion which might increase risk during a fire evacuation. Miami Creek further notes there is only one residential water supply to the area, Almanac and Basecamp do not have water rights for the full scale of their development plans, and that this water use could constitute 17.6 of the 105 water units for the system.
Notably, Miami Creek does not identify any specific harms to any individual properties in the area. They identify no homes that have suffered water loss or other harm from the existing construction and no loss of enjoyment or other rights from the current use. Rather, the contentions are all framed in the context of harms that could occur if the expansion is permitted.[
The same is true for proposed allegations made throughout Miami Creek's briefing. Noted with an "*" rather than a citation, these allegations claim there could be air quality, wildlife, and vegetation impacts. These include an increase in the risk of fire to the area and that "the ability of existing fire services to provide adequate protection to the public will be stressed by the development and expansion of the resort motel." During expansion there would also be "combustion emissions from construction equipment," among other air quality impacts, and the "loss of wildlife from disturbed areas."
We do not agree that these generalized harms either as currently framed or as arising from future expansion are sufficient to allege an injury that is different in kind and not just different in degree from that suffered by the general public. As an initial matter, to the extent the allegations are framed in the context of future harm or fear of harm, a private individual cannot pursue such claims through a public nuisance claim. (See Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1213, fn. 30 ["Where a claim of nuisance is based upon an alleged apprehension of future injury, there is a distinction drawn between an action by a public entity to enjoin the nuisance and an action brought by a private party."].)
However, even if we consider the allegations to be of present harm or overlook the general rule that fear of future harm does not support private enforcement of public nuisances, Miami Creek's allegations fall short of demonstrating a harm that is different in kind and not just in degree from that suffered by the general public. The claimed right to have roads that are not overburdened during evacuations or to not have existing water supplies diminished by other landowners are rights that do not attach to individual properties any more than they do to the general public residing in the affected area. Such claims affect an entire community or neighborhood and, without more, are not specially injurious to any one person. (See Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1040-1041 [allegations of mental anguish, risk of higher insurance premiums, diminished property values, and reduced usefulness of premises related to storage of fuel near a residential neighborhood apply generally to the public and are only different in degree with respect to higher risk property owners].)
Miami Creek attempts to link its allegations to a series of cases holding, as noted above, that parties specifically injured by a public nuisance maintain a right to sue even when their injury is shared by the general public. In Lind v. City of San Luis Obispo (1895) 109 Cal.340, 345, for example, the plaintiff was permitted to sue under a public nuisance theory where "the stench arising from the nuisance not only enters plaintiff's dwelling-house through every open door and window . . . but large quantities of the material from which the noxious odors arise are deposited upon his land near his house." In Wade v. Campbell (1962) 200 Cal.App.2d 54, 59-60, this court permitted an action upon a public nuisance where "in addition to pollution of the air by nauseating odors and stenches, the conditions maintained on defendants' property gave rise to excessive mosquito and fly populations, unpleasant and offensive sights and sounds, and the pollution" of a nearby creek. Similarly, in Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1550, the plaintiff was permitted to pursue a public nuisance claim after alleging she was personally injured by secondhand smoke, which aggravated her childhood asthma and chronic allergies.
In contrast to these cases and the line of authority relying upon them, Miami Creek's allegations fall far short. As noted, there is no specific allegation of harm to any specific person or property. There is no concrete loss of enjoyment or use of any of the surrounding properties. And there is no encroachment upon any of the complaining party's rights. Rather, the allegations claim only general harm to the community in the form of perceived risks to air quality, fire preparedness, water availability, and wildlife habitats. None of the allegations raise a harm different in kind to those suffered by the community as a whole, and none of the allegations rise to the level of specific harm that allows for the combining of a public nuisance claim and a private nuisance claim. Accordingly, the trial court correctly granted the demurrer to Miami Creek's complaint.
Dismissal Without Leave to Amend
Miami Creek dedicates a single paragraph of argument to overturning the trial court's decision to grant the demurrer in this case without leave to amend. In this paragraph, Miami Creek contends that "amendment would provide clarification on when constructive knowledge of the Project's commencement occurred," clarify the focus of the second cause of action, and explain "the different kinds of injury suffered by the public generally and [Miami Creek] specifically" for the third cause of action. As noted, throughout its briefing Miami Creek has included factual allegations without citation that it states are sufficient to support a cause of action if it is permitted to amend. We do not agree that Miami Creek has demonstrated a basis to grant amendment.
With respect to Miami Creek's first and second causes of action, the facts alleged demonstrate those claims are barred by the applicable statutes of limitation. Miami Creek identifies no additional factual pleadings which would overcome this issue. Nor would Miami Creek be permitted to modify its factual pleadings in an amendment to contradict or suppress those facts already alleged. (See Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344.) Rather, Miami Creek's additional factual allegations go to issues separate from the statute of limitations issue or to its rejected claims that constructive knowledge separate from the start of construction or the issuance of the contested permits is the triggering point for the limitation periods.
With respect to Miami Creek's third cause of action, this court's analysis has identified and discussed the allegations of harm included in the briefing, regardless of whether they are supported by the current record. For all of the allegations of harm currently identified, this court has determined that Miami Creek has not identified any particularized harm that is different in kind, as opposed to different in degree, from that suffered by the general public. Miami Creek's reliance on these new factual bases of harm thus fails to demonstrate that there exists a viable cause of action for which amendment should be permitted. (See Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 674-679 [denying leave to amend where new factual claims were insufficient to show a viable cause of action].)
DISPOSITION
The judgment is affirmed. Costs are awarded to respondents.
WE CONCUR: MEEHAN, J. SNAUFFER, J.