Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC438342, Gloria Trask, Judge.
Johnson & Sedlack, Raymond W. Johnson, Abigail A. Broedling, Kimberly A. Foy, and Sarah A. Krejca for Plaintiff and Appellant.
Pamela J. Walls, County Counsel, and Lisa A. Traczyk, Deputy County Counsel, for Defendant and Respondent.
Rutan & Tucker, John A. Ramirez, Douglas J. Dennington, and Peter J. Howell for Defendants and Real Parties in Interest.
OPINION
Codrington J.
I
INTRODUCTION
Plaintiff and appellant Rural Communities United, Inc. (RCU) appeals judgment entered following the trial court’s ruling denying RCU’s petition for writ of mandate seeking to compel defendant and respondent County of Riverside (the County) to shut down and dismantle a concrete batch plant owned and operated by defendants and real parties in interest Superior Ready Mix Concrete LP and Shamrock Sand and Rock, LLP (collectively Superior). The trial court denied RCU’s writ petition on the ground Superior had a legal right to operate the batch plant at the mining site as a nonconforming use under Riverside Ordinance No. 348, section 12.60(b). (Riverside County Code, § 17.116.010.)
All references to Riverside Ordinances (Ordinances) are to the equivalent codified version in the Riverside County Code (RCC) unless indicated otherwise.
RCU contends the trial court should have granted its writ petition because, under condition 17 of Superior’s surface mining permit 145 (SMP 145), the permit expired in 2003 and, under condition 18 of SMP 145, Superior was thus required to commence the reclamation plan imposed in condition 18, mandating removal of all equipment from the property. RCU argues that Ordinance No. 348, section 18.2.a (RCC, § 17.172.020) requires the County to follow and enforce the permit conditions, even though they conflict with RCC section 117.116.010. RCU argues the permit conditions take precedence over the more general ordinance provisions relating to nonconforming uses.
RCU also argues the court erred in concluding that the California Environmental Quality Act (CEQA) did not require County enforcement of mitigation measures, such as the SMP 145 conditions, imposed prior to enactment of CEQA mitigation and monitoring requirements in 1983. In addition, RCU argues Ordinance No. 555 (RCC, § 5.48.010 et seq.) requires County monitoring of mitigation efforts and takes precedence over RCC section 117.116.010, which allows nonconforming uses.
We conclude the trial court did not err in denying RCU’s petition for writ of mandate because it was unnecessary and improper to issue a writ of mandate since the County was already enforcing the permit conditions. Furthermore, the manner in which the County enforced the permit conditions was discretionary and thus not the proper subject of a writ of mandate. As to RCU’s remaining challenges relating to the third cause of action (CEQA violation) and fifth cause of action (Ordinance No. 555 violation), RCU abandoned those objections by voluntarily dismissing the third and fifth causes of action. The judgment is affirmed.
II
FACTS AND PROCEDURAL BACKGROUND
In April 1972, the County issued John Marana a conditional use permit (CUP) 1391, with an expiration date of July 1, 1982. The CUP authorized surface mining of rock and sand on Marana’s property, located north and south of State Highway 79, in the Aguanga area of Riverside County. Marana’s mining business was operated under the name of Shamrock Sand & Rock Corp.
The CUP application states the property is located south and north of State Highway 71. Apparently, thereafter Highway 71 was renamed Highway 79.
In 1975, Marana obtained the necessary building permits to construct a concrete batch plant on the property south of Highway 79 (the south property) and began operating the batch plant.
In 1975, the state Legislature adopted the Surface Mining and Reclamation Act of 1975 (SMARA). (Pub. Resources Code, § 2710 et seq.) In 1976, the County adopted Ordinance No. 555, implementing SMARA in the County. (RCC, § 5.48.010 et seq.)
In January 1976, the County Planning Department sent Marana a letter notifying him that CUP 1391 did not permit a batch plant operation. Therefore, Marana’s batch plant was is in violation of Ordinance No. 348 (RCC, § 17.116.010 et seq.) and Marana had to cease operating his batch plant or apply with the County Planning Department for approval of the batch plant use.
In response, in August 1976, Marana applied for a zone change for the south property where the batch plant was located. The County rezoned the south property as a mineral resources and related manufacturing zone (M-R-A).
Shortly before expiration of Marana’s CUP 1391 in July 1982, the County Planning Commission notified Marana that under Ordinance No. 555, once his CUP expired, a surface mining permit (SMP) would be required to continue mining operations on the property.
Marana accordingly submitted in June 1982 an application for a SMP and reclamation plan approval. The County Planning Department concluded that the project would not have a significant effect on the environment and authorized a negative declaration. According to the County Planning Department staff report, “[t]he scope of the proposed project will mirror the existing project.” “Streambed skimming, mining of rock and limited blasting will occur on site in addition to the existing concrete batch plant.”
At the time of submission of the SMP 145 permit application, Marana had been mining on the property north of Highway 79 (the north property) (phase I) for 10 years. It was anticipated that in the future Marana would mine the 3.5 acre property south of the highway (phase II). The batch plant was located on the south property. Mining on the south property required blasting.
In March 1983, the County Board of Supervisors approved SMP 145 with the conditions recommended by the County Planning Commission.. Condition 17 stated: “The use permitted hereby shall terminate on March 18, 2003.” Condition 18 (Reclamation Conditions) stated: “Upon cessation of the mining, all stockpiled material and other residual material or equipment shall be removed from the site.”
After issuance of SMP 145, Marana continued surface mining the north property and operating the batch plant on the south property.
In 2002, Marana sold the south property (450 acres), including the batch plant and sand washing and screening facility, to Superior, owned by Garrett Brouwer. Superior acquired title to the south property in the name of Shamrock Sand & Rock, LLC, which had no affiliation with Shamrock Sand & Rock, Inc. or Marana. Superior used the south property for operation of the batch plant.
This included property which was not encompassed by SMP 145.
In 2003, Shamrock Sand & Rock, Inc. sold the north property (425 acres) to Canyon Lands, LLC. Superior and Canyon Lands are completely separate entities and are not affiliated with each other in any way.
Before expiration of SMP 145 in March 2003, Superior applied for revision of SMP 145 in January. Phase I (45.3 acres) had been nearly completed, with no minerals of value remaining, and reclamation was progressing. Superior requested the following SMP 145 revisions: a 30-year extension of SMP 145; abandonment of phase II, because it required blasting and was too close to the freeway to be safe; adding 72 acres of hard rock mining outside the area of the original SMP 145 property; and altering Highway 79 to provide improved access to the mining site.
SMP 145 Expires
On March 18, 2003, SMP 145 expired pursuant to condition 17.
After Chuck Wideen of the County Department of Building & Safety inspected the mine in August 2003, he reported that reclamation was in progress and there was no active mining, but materials were being imported to continue operating the batch plant until a new permit was issued.
In August 2003, the County Planning Department notified Superior that Superior was required to prepare a draft environmental impact report (EIR) or alternatively revise its proposed project stated in Superior’s application for revision of SMP 145. Superior’s failure to do so within one year (Pub. Resources Code, § 21151.5) resulted in the presumption Superior had abandoned its proposed project.
In response to the County’s notice to prepare a draft EIR, Daniel Kipper of KCT Consultants, Inc. sent the County Planning Department a letter stating that Superior’s batch plant, aggregate screening and washing equipment, and office areas were located on M-R-A zoned property and these uses were permitted as nonconforming uses or structures that could be maintained for up to 40 years as such under RCC sections 17.116.010 and 17.184.040.
The County Begins Enforcement of SMP 145 Conditions
Following Wideen’s inspection of the north and south properties in December 2003, Wideen reported the mine operation was “Idle.” Because SMP 145 had expired, he posted at the mine site a notice to cease operations.
Wideen also sent notices to Marana of Shamrock Sand & Rock, Inc. and Brouwer of Superior that importing materials to the batch plant violated condition 17 of the SMP 145 because the permit expired on March 18, 2003. The notice further stated: “All mining and accessory operations to produce materials were to cease operation on expiration of the permit. You are hereby given notice that you are to cease all production of product for export, which includes mining of minerals and closure of the crushing and screening operations and the concrete batch plant within 30 days of receipt of this notice. Your permit is now considered null and void by the Building & Safety Department. Failure to terminate these specified operations would result in further legal action by this Department.”
Wideen’s May 2004 surface mining inspection report stated that the May inspection was requested by the “mine operator for completion of Phase I reclamation – grading of site.” Wideen further stated in his report that the mining had been completed.
Wideen’s October 2004 surface mining inspection report stated that, before SMP 145 expired, the mine operator submitted an application for a revised permit. The north property had been fully reclaimed (phase I), and the south property (phase II) had an operations plant and batch plant, with no mining being conducted since expiration of SMP 145. Materials were being imported to operate the batch plant.
In August 2005, Arnold Veldkamp of Superior submitted a mining operation annual report, stating that mining ceased in 2003, with reclamation completed for the north property in May 2004. As to the south property, none of the property had been “disturbed” or reclaimed during 2004, with “[n]o [p]roduction for a [c]ommodity.” Superior had not engaged in mining on the south property.
In June 2005, the County Code Enforcement Division began investigating possible illegal operation of the mine and personally served Superior through Marana with a written County notice of violation. The notice stated that Superior’s property was in violation of RCC section 17.116.010 (“land use without planning dept. approval – cement batch plant – Shamrock [Sand & Rock, ] LLC”). The notice further stated: “You are directed to comply with this notice by obtain [sic] a C.U.P. from Riverside County Planning Department or cease all cement batching plant operations & stockpiling materials.”
An investigation report by County Code Enforcement Investigator Bill Cossaboom stated that he was assigned the case in June and had immediately begun investigating whether the mine was operating illegally without County Planning Department approval. On June 17, 2005, Cossaboom and Wideen visited the mine and spoke with the batch plant manager, Jeffrey Marana, and several coworkers. Cossaboom wrote up a notice of violation under RCC section 17.116.010, which Marana signed. Marana said he would forward the notice to the district manager for Superior, Rich Gibson. That same day, Cossaboom called Gibson, who agreed to begin the CUP process.
On June 22, 2005, the County served Superior with a notice of violation. (RCC, § 17.116.010.) The notice stated that Superior was illegally using its land as a cement business without required approval and permits. The notice further stated that Superior was required to “obtain the required County of Riverside Planning Department approvals/permits for the cement business or cease operation of business and remove from said property” by July 22, 2005.
On June 27, 2005, Veldkamp of Superior, called Cossaboom and discussed the alleged code violation. Veldkamp wanted to know how to comply with the County requirements for operation of the facility. Cossaboom suggested getting assistance with applying for a new CUP.
In July, Veldkamp notified the County that Superior had retained KCT Consultants, Inc. to prepare an application for a CUP for the batch plant. Veldkamp noted that Superior’s permit application would be submitted without prejudice to its current rights to operate the batch plant under RCC section 17.116.010 as a nonconforming use.
In August 2005, James Fagelson of the County Planning Department notified KCT Consultants, Inc. that the batch plant was not a permissible nonconforming use within the M-R-A zone under RCC section 17.116.010 because there was no active SMP for the property. In addition, there was no nonconforming use because the mineral resources at the site were not depleted. Superior’s only option was to complete an EIR.
Veldkamp notified Cossaboom in September that, although the batch plant qualified as a legal nonconforming use, Superior had agreed to submit an application for a CUP. Since the County Planning Department said it would not approve a CUP for the batch plant, Superior intended to submit an application for certification of a pre-existing nonconforming use. Superior did so on September 29, 2005, pursuant to RCC section 17.184.030.
RCU Files a Petition for Writ of Mandate
In October 2005, RCU filed a petition for writ of mandate and complaint for declaratory and injunctive relief against the County, Superior, and Canyon Lands LLC. RCU alleged that Superior was operating a batch plant and mining for aggregate without a SMP, in violation of RCC section 5.48.101 et seq. (Ordinance No. 555), SMP 145, and SMARA. RCU requested a writ of mandate requiring the County to (1) enforce Ordinance No. 555 provisions and require Superior to obtain a SMP for operation of the batch plant and mining for aggregate subject to proper environmental review; (2) require the County to enforce the SMP 145 conditions; and (3) require the County to comply with SMARA by enforcing SMP 145 and require an SMP for the batch plant and aggregate mining.
By letters dated July 6, 2006 and August 16, 2006, Fagelson notified Superior that Superior’s application for determination of nonconforming use status was incomplete since it was lacking documentation, such as a geologist’s report, to support Superior’s contention that the mineral resources had been depleted.
On July 5, 2006, the State Department of Conservation, Office of Mine Reclamation also sent a letter to Veldkamp stating: “Shamrock Sand & Rock [Superior] is operating in noncompliance with [Public Resources Code] [s]ection 2770 for conducting surface mining operations without a valid permit to operate and [Public Resources Code] [s]ection 2773.1[, subdivision] (a)(2) for not having a lead agency approved financial assurance.”
After several demurrers, on August 31, 2006, RCU filed a second amended petition for writ of mandate and complaint for injunctive relief, which became the operative pleading in this action. The first and third causes of action petitioned for writ of mandate against the County. The second, fourth, and fifth causes of action requested declaratory relief. The trial court sustained without leave to amend the County’s demurrer to the third cause of action (failure to comply with CEQA).
In October 2006, Superior’s attorney sent County principal planner, Fagelson, a letter enclosing a geological report regarding the depletion of mineral resources on the south property, in support of Superior’s application for nonconforming use status. The geological report concluded mineral resources on the entire property subject to SMP 145, including the south property, had been depleted before expiration of SMP 145, since the targeted mineral resources (sands and gravels) could not be feasibly extracted. Therefore the batch plant had assumed a legal nonconforming use status upon depletion of the mineral resources.
In response to the geological report, in January 2007, the County Planning Department sent Superior a letter requesting additional information and clarification of statements made in the geological report.
In March 2007, Veldkamp of Superior sent the County a letter enclosing a supplementary geological report stating that reclamation of the north property was complete and there had been no mining on the south property. Superior’s batch plant continued to operate by using imported sand and gravel.
In July 2007, the County notified Superior that the County Planning Department had denied Superior’s request for nonconforming use on the following grounds: (1) SMP 145 expired on March 18, 2003; (2) RCC section 117.116.010 required depletion of mineral resources prior to expiration of the SMP in order for the use to qualify as nonconforming; and (3) “mineral resources are available south of the highway, ... but were deemed to be too expensive to mine or that the applicant did not want to obtain the additional permits that were required and did not want to address the safety issues that would be required in order to mine the available resources.” Superior’s request for nonconforming use was also denied because there were still mineral resources available on the south property and “the decision not to mine the available resources was based upon economics and ease of mining, not upon the existence or depletion of available mineral resources.” Superior was told to cease all operations on the south property as of July 27, 2007, and remove all equipment, with the site reclaimed within 90 days.
In July, RCU filed a motion for summary judgment as to RCU’s writ petition against the County (first cause of action) on the ground the County failed to enforce SMP 145 conditions.
Also in July, the County and Superior representatives met and discussed the County’s denial of Superior’s request for nonconforming use status. Superior was permitted to submit additional information on the issue of mineral resource depletion. Superior indicated it intended to continue operating the batch plant.
In August, Superior submitted to the County Planning Department a request for reconsideration of denial of its application for determining nonconforming use status. In support of the request, Superior provided an economic analysis report which concluded that mining the south property, within the 3.5 acre SMP 145 permitted area, was not economically feasible. It would cost approximately $3,159,720 to extract approximately $2,015,100 worth of rock, at a financial loss of about $1,144,620.
In August 2007, the County notified Superior that, due to the County denying Superior’s nonconforming use application, Superior was required immediately to cease operation of its batch plant. Superior’s attorney notified the County Planning Department that in response to the County’s demand, Superior had immediately ceased operation of its batch plant, without waiving any of its legal rights.
In September, the County Planning Department denied Superior’s request for reconsideration of Superior’s application for determining nonconforming use status. Superior was told to commence immediately final reclamation of the south property and close the mine site.
Superior Files Its Petition for Writ of Mandate and Complaint
On October 9, 2007, in a separate lawsuit, Superior filed a complaint and petition for writ of mandate directing the County to issue a certificate of nonconforming use as to the batch plant operation. Superior’s action has not been consolidated with RCU’s action, but both have been assigned in the trial court to Judge Trask.
In October, the trial court denied RCU’s motion for summary judgment on RCU’s writ petition on the ground the manner in which the County enforced the permit was a discretionary act, which was not subject to writ of mandate. In response to the trial court noting the County had already taken action in enforcing the permit, RCU’s attorney stated that, “subsequent to [RCU] filing the suit [the County] ha[s] finally taken action, so they have finally done what we asked them to do.” RCU’s attorney argued that the only remaining question was removal of the batch plant equipment.
In April 2008, the County filed a cross-complaint in Superior’s action against Superior for injunctive relief and civil penalties, including seeking to close down and dismantle the batch plant.
Hearings on Superior and RCU’s Petitions for Writ of Mandate
On January 23, 3009, Judge Trask heard both Superior’s and RCU’s petitions for writ of mandate. Judge Trask first heard Superior’s writ petition. The court granted Superior’s writ petition, directing the County to certify the batch plant operation as a nonconforming use. Judge Trask concluded that Superior had established that the batch plant operation was a nonconforming use based on finding mineral resources had been depleted prior to expiration of SMP 145.
Right after granting Superior’s petition for writ of mandate, the trial court heard RCU’s petition for writ of mandate (only as to the first cause of action), seeking an order directing the County to close down Superior’s batch plant. The court denied RCU’s writ petition based on the court’s determination in the Superior writ petition proceeding that Superior had a legal right to operate the batch plant as a nonconforming use.
In March 2009, pursuant to RCU’s request, the court dismissed the second, third, fourth, and fifth causes of action of RCU’s complaint, without prejudice.
On October 30, 2009, the trial court entered an order denying RCU’s petition for writ of mandate. Exhibit A, attached to the court’s statement of decision and judgment, states: “Petitioner [RCU] is a nonprofit corporation with a self-proclaimed mission of seeking to preserve and protect natural resources and ensure compliance with applicable land use laws in Riverside County. Petitioner has sought a writ of mandate to compel County and Real Party in Interest [Superior] to dismantle and remove the concrete batching plant and all other equipment at the subject property. The court heard the petition on January 23, 2009. The court simultaneously heard the related case Superior Ready Mix Concrete et al. v. County of Riverside, RIC482454. In that related case, the court found that the mine had been depleted before the expiration of the surface mining permit, triggering the legal nonconforming use of the batching plant. Therefore, as Real Party in Interest [Superior] has a legal right to continue operating its batching plant, the petition is denied.”
Proceedings in Superior’s action remain pending, with a trial court order staying its order granting Superior’s petition for writ of mandate.
III
JUDICIAL NOTICE
Superior requests this court to take judicial notice of Riverside County Codes (ordinances) and several court documents in Superior Ready Mix Concrete, LP v. County of Riverside et al., Superior Court case No. RIC482454 (referred to in this opinion as the related case or Superior action). Such documents include pleadings, trial court orders, the trial court’s statement of decision on Superior’s petition for writ of mandate, and the reporter’s transcript of the January 23, 2009 hearing on the writ petition.
RCU and the County oppose Superior’s motion for judicial notice. The County does not object to judicial notice of the County ordinances, with the exception of those that pertain to the issue of whether Superior has a right to operate the batch plant as a nonconforming use. RCU and the County argue that documents relating to whether the batch plant qualifies as a nonconforming use are irrelevant and prejudicial to the instant proceedings, since that issue is not before this court on appeal.
The proceedings in the Superior action are related to the instant writ proceeding. The documents Superior requests judicially noticed provide useful background facts and relevant information, particularly as to whether the County took reasonable measures to enforce the permit conditions and close down the batch plant. Superior’s request for judicial notice is thus granted in its entirety. (Evid. Code, §§ 452, subds. (b), (d), 453, 459; Cal. Rules of Court, rules 8.252, 8.50.)
The County requests, in its opposition to Superior’s motion for judicial notice, leave to augment the record with additional, unspecified documents filed in the related action, along with additional briefing. The County’s request is denied as untimely, improper procedurally, and without merit, particularly since the only pleadings Superior requests judicially noticed are the core pleadings in the Superior action, along with the statement of decision and the reporter’s transcript of the hearing on Superior’s writ petition. (Cal. Rules of Court, rules 8.252, 8.50.) Further briefing and additional judicially noticed documents are unnecessary.
IV
STANDARD OF REVIEW
A traditional writ of mandate, such as that sought by RCU, brought under Code of Civil procedure section 1085, compels “performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station....” (Code Civ. Proc., § 1085, subd. (a).)
This type of writ petition “seeks to enforce a mandatory and ministerial duty to act on the part of an administrative agency or its officers. Appellants therefore had to show: (1) a clear, present, and usually ministerial duty to act; and (2) that they had a clear, present and beneficial right to have that duty performed. Mandate will not issue if the duty is not plain or is mixed with discretionary power or the exercise of judgment.” (Los Angeles County Prof. Peace Officers’ Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 869.) That is, a writ “will not lie to control the discretion conferred upon a public officer or agency. [Citation.] The latter rule derives from the view ‘“[c]ourts should let administrative boards and officers work out their problems with as little judicial interference as possible....”’ [Citation.]” (State Bd. of Education v. Honig (1993) 13 Cal.App.4th 720, 741.)
On review of the trial court’s ruling on RCU’s writ petition, this court “will affirm if substantial evidence supports its findings and judgment. To the extent questions of law such as statutory interpretation are involved, we exercise our independent judgment.” (Los Angeles County Prof. Peace Officers’ Assn. v. County of Los Angeles, supra, 115 Cal.App.4th at p. 869.)
V
RCU’S WRIT PETITION IS UNNECESSARY
DUE TO THE COUNTY’S WILLINGNESS TO ENFORCE PERMIT
RCU contends the trial court erred in denying RCU’s writ petition (the first cause of action) seeking to close down and dismantle Superior’s batch plant. RCU argues the batch plant was not a nonconforming use under RCC section 17.116.010 because conditions 17 and 18 of SMP 145 required closure of the batch plant and reclamation upon expiration of SMP 145 on March 18, 2003. RCU asserts that the permit conditions take precedence over the County ordinance providing for nonconforming uses.
The trial court denied RCU’s writ petition because it found in the related case that the mineral resources on the property had been depleted before expiration of SMP 145, triggering Superior’s right to operate the batch plant as a legal nonconforming use under RCC section 17.116.010. The trial court thus concluded in the instant case that RCU’s writ petition was moot since Superior had a legal right to continue operating its batch plant.
The trial court’s stated reason for denying RCU’s writ petition is not the reason we affirm the trial court’s ruling denying RCU’s writ petition. “We do not review the trial court’s reasoning, but rather its ruling. A trial court’s order is affirmed if correct on any theory, even if the trial court’s reasoning was not correct.” (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16.)
We need not consider whether the mineral resources were depleted or whether the batch plant qualifies as a nonconforming use since, procedurally, writ relief is not a proper form of relief under the circumstances in this case. Writ relief is unnecessary because the County has already taken measures to enforce SMP 145 by attempting to shut down and dismantle the batch plant, and the controversy over whether Superior may continue operating the batch plant as a nonconforming use is being litigated in the related case.
The parties agree that the issues of whether the mineral resources were depleted and whether the batch plant qualifies as a nonconforming use are not before this court on appeal.
Regardless of whether the batch plant ultimately may continue operating as a legal nonconforming use, writ relief is improper because mandate will not lie to compel acts which the County has been willing to perform and is actually performing. The record demonstrates that prior to RCU filing its petition, as well as thereafter, the County consistently attempted to enforce SMP 145 conditions, first by notifying Superior in December 2003 that it was operating the batch plant without a valid permit and was required to cease operations, and thereafter by insisting that either Superior apply for a new permit or close down and dismantle the batch plant. The County notified Superior that operating the batch plant violated SMP 145 and various County ordinances, and rejected Superior’s contention that the batch plant qualified as a nonconforming use. The County repeatedly told Superior to cease its batch plant operations. Superior ultimately complied with the County’s demands to do so, while simultaneously applying for certification of nonconforming use, which the County rejected. The County also opposes Superior’s petition for writ of mandate seeking certification of nonconforming use (the related action).
To date, Superior’s related action remains pending in the trial court, with a stay of the trial court’s writ of mandate order that the County certify the batch plant as a nonconforming use and cease all efforts to close down the batch plant. While the order is not final, the record demonstrates that the County has done, and is willing to do, that which RCU seeks to compel by writ of mandate. Over the past seven years, the County has opposed every step of the way Superior’s efforts to continue operating the batch plant.
While RCU may be dissatisfied with the manner and pace in which the County has proceeded with enforcement of the SMP 145 conditions, RCU has not established such efforts were unreasonable or not in good faith. Furthermore, while the County has a ministerial duty to enforce SMP 145 conditions (Terminal Plaza Corp. v. City and County of San Francisco (1986) 186 Cal.App.3d 814, 834), the manner in which it does so constitutes a discretionary act, which cannot be compelled by writ of mandate (Riggs v. City of Oxnard (1984) 154 Cal.App.3d 526, 530).
Writ relief is unwarranted and inappropriate here because mandate relief has its limits, and they have been exceeded in the instant case: (1) The County has demonstrated it is willing to perform the requested act without coercion and (2) RCU’s writ petition improperly seeks to control the County’s discretion in determining the manner of enforcing SMP 145 and its conditions. (Morris v. Harper (2001) 94 Cal.App.4th 52, 59; Riggs v. City of Oxnard, supra, 154 Cal.App.3d at p. 530.)
It is well-settled that, “‘[i]f the respondent shows a willingness to perform without coercion, the writ may be denied as unnecessary; and if he shows actual compliance, the proceeding will be dismissed as moot.’ [Citation.]” (Morris v. Harper, supra, 94 Cal.App.4th at p. 59; see also Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 417; Bruce v. Gregory (1967) 65 Cal.2d 666; George v. Beaty (1927) 85 Cal.App. 525.) “After all, ‘“‘[i]t is the refusal or neglect to perform an act which is enjoined by the law as a present duty that serves as the very foundation for the [mandamus] proceeding.’ [Citation.]” [Citation.]’ [Citation.]” (Morris v. Harper, supra, at p. 60.)
The County’s acts in enforcing SMP 145 “can be characterized as a good faith effort to comply with the law.” (Morris v. Harper, supra, 94 Cal.App.4th at p. 60.) Unlike in Morris, RCU has not demonstrated the County acted with unreasonable protracted delay and apparent intransigence that “is, at best, gross indifference to, if not outright defiance of, the mandates of the Legislature and the judiciary, ” at the expense of the public’s health and well-being. (Ibid.) Here, the record establishes that the County intended, and continues to intend, to comply with its lawful obligation to enforce SMP 145 conditions, without the coercion provided by issuance of a writ.
The County has attempted to enforce SMP 145 conditions both before and after RCU filed its writ petition in this case. It is proper for a judge hearing a mandamus proceeding to consider, in deciding whether to issue a writ, “all relevant evidence, including facts not existing until after the petition for writ of mandate was filed. This is so because mandamus is an action where equitable principles apply [citations], and because issuance of the writ is frequently a matter for the court’s discretion [citations].” (Bruce v. Gregory, supra, 65 Cal.2d at pp. 670-671; see also State Bd. of Education v. Honig. supra, 13 Cal.App.4th at p. 742.)
In the instant case, the County is asserting in the related action that Superior is in violation of SMP 145 and had to cease batch plant operations and remove the batch plant facility. This is precisely what RCU seeks in its writ of mandate petition. Because litigation remains pending in the related action, with the trial court having ruled that Superior’s batch plant operation is lawful as a nonconforming use, the County has done all it can to terminate the batch plant operations and there is no evidence the County intends to cease its efforts to enforce SMP 145, unless ordered by the court to do so.
Under such circumstances, in which the County has consistently attempted to enforce SMP 145, both before and after RCU filed its writ petition, RCU’s petition is unnecessary. (Bruce v. Gregory, supra, 65 Cal.2d at p. 671; State Bd. of Education v. Honig, supra, 13 Cal.App.4th at p. 742.) “No purpose would be served in directing the doing of that which had already been done.” (Muller v. Municipal Court (1956) 146 Cal.App.2d 231, 232; Bruce v. Gregory, supra, at p. 671; see also George v. Beaty, supra, 85 Cal.App. at p. 529 [“[T]he remedy of mandamus will not be employed where the respondents show that they are willing to perform the duty without the coercion of the writ.... ‘“Mandamus will not issue to compel the doing of an act which has already been done, or which the respondent is willing to do without coercion”....’”].)
RCU may argue that there is a continuing need for a peremptory writ, because litigation is ongoing in the related case regarding the legality of Superior operating the batch plant as a nonconforming use and there is no final judgment on the issue. Therefore diligent enforcement of SMP 145 must continue and the County might cease doing so. A similar argument, however, was rejected in George v. Beaty, supra, 85 Cal.App. 525. The George court held: “The board of supervisors have [sic] taken all action which we might at this time compel them to take and we cannot assume that they will not continue [to perform]. In fact, we are bound to presume, in line with the presumption contained in subsection 15 of section 1963 of the Code of Civil Procedure [now Evidence Code section 664] ‘that official duty’ will be ‘regularly performed.’” (Id. at pp. 528-529; see also Cooke v. Superior Court, supra, 213 Cal.App.3d at p. 417.) In George, the court acknowledged this rule imposes “continued vigilance” upon the petitioners; “[h]owever, if it were otherwise courts might be continually called upon to direct and supervise the conduct of public officials....” (George v. Beaty, supra, at p. 531.)
Furthermore, determination of whether Superior must close down and dismantle the batch plant is being addressed in the related action. Once judgment is final in that action as to whether the batch plant qualifies as a nonconforming use, the judgment can be enforced, if necessary, through appropriate means. Under such circumstances, at this point, it is premature and inappropriate to issue a writ of mandate ordering the County to close down the batch plant, particularly when the trial court has ruled in the related action that the batch plant may continue operating as a nonconforming use.
The trial court ruling on Superior’s writ petition in the related case has been stayed and is not yet final due to pending litigation on Superior’s complaint.
In the instant case, the record is replete with evidence that the County performed its duty to enforce SMP 145 and its conditions. Regardless of whether the County was correct in concluding that the batch plant does not qualify as a nonconforming use, it attempted in good faith to enforce the permit by notifying Superior that it was in violation of SMP 145 and that it must either obtain a new permit or close down the batch plant facility and remove the equipment. The County further has consistently opposed Superior’s efforts to obtain certification of the batch plant as a nonconforming use. At this point, the trial court in the related action has ruled in favor of Superior and granted Superior’s writ petition, with the writ stayed until completion of the related action. There is essentially nothing more the County can reasonably be expected to do to enforce SMP 145 conditions, other than continue in good faith to litigate the issue in the related action.
Denial of RCU’s writ petition was proper since, regardless of whether, in fact, Superior may legally operate the batch plant as a nonconforming use, RCU’s requested writ of mandate in this action is unnecessary.
VI
RCU’S THIRD CAUSE OF ACTION ASSERTING CEQA VIOLATIONS
RCU contends the trial court erred in concluding that CEQA did not require the County to enforce mitigation measures imposed prior to 1983. Specifically, RCU argues the County ignored the mitigation measures, consisting of the SMP 145 conditions, by failing to require Superior to comply with conditions 17 and 18. This appears to be the basis of RCU’s third cause of action. The trial court did not decide this issue during the hearing on RCU’s writ petition in January 2009. Only RCU’s first cause of action, seeking writ relief, was before the court then.
RCU’s CEQA contention on appeal is perplexing since RCU does not raise the contention in the context of the court sustaining RCU’s demurrer, without leave to amend, to the third cause of action or address the fact that RCU voluntarily dismissed the third cause of action after the trial court denied RCU’s writ petition on the first cause of action.
In August 2006, the trial court sustained without leave to amend the County’s demurrer to the third cause of action, alleged in the second amended writ petition and complaint. Then, after the trial court heard and denied RCU’s writ petition (only as to the first cause of action) in March 2009, the court dismissed the second, third, fourth, and fifth causes of action of RCU’s complaint, without prejudice, pursuant to RCU’s request. RCU thus abandoned its third cause of action prior to entry of judgment. (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 761.)
Even assuming RCU’s CEQA contention is properly before this court on appeal, it lacks merit. The standard of review of a ruling on a demurrer differs from that of a ruling on a writ petition. The standard of review as to a demurrer ruling is de novo, with this court looking solely to the four corners of the pleadings (the third cause of action) and attachments, to determine whether the complaint states a cause of action as a matter of law. (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439-440 [Fourth Dist., Div. Two].)
RCU alleges in the third cause of action that the County failed to comply with the requirements of CEQA by not enforcing the mitigation measures of SMP 145. Superior allegedly failed to comply with SMP 145 conditions requiring reclamation upon expiration of SMP 145 on March 18, 2003. The County, in turn, failed to require Superior to implement the reclamation plan and require Superior to remove the equipment, in violation of the County’s nondiscretionary legal duty to compel compliance with SMP 145 conditions. By failing to enforce the reclamation plan, the County allegedly failed to enforce SMP 145 mitigation measures, as mandated under CEQA.
RCU has not cited any case law or statutory authority supporting a writ of mandate based on CEQA for not closing down the batch plant and compelling Superior to commence reclamation. RCU asserts that conditions 17 and 18 constitute mitigation measures under CEQA, but the conditions do not specifically require closing the batch plant after mining ended and the conditions were not imposed during the CEQA process.
When the County approved SMP 145, the County authorized a negative declaration, without mitigating measures, based upon the County Planning Department’s determination that “[t]he project will not have a significant effect on the environment....” When the SMP 145 conditions were adopted in 1983, the County was not statutorily mandated to monitor compliance with the SMP 145 conditions. It was not until 1988 that the Legislature enacted Public Resources Code section 21081.6, providing for a mitigation monitoring program, with no provision for retroactive application.
In addition, any error in sustaining the demurrer to the third cause of action, without leave, is harmless since RCU cannot prevail on its third cause of action seeking a writ of mandate based on CEQA. The record shows that the County enforced SMP 145 conditions 17 and 18 by attempting to close down the batch plant and by opposing Superior’s efforts to operate the batch plant as a nonconforming use. Therefore, the writ relief requested in the third cause of action is unnecessary and improper.
VII
FIFTH CAUSE OF ACTION FOR DECLARATORY RELIEF
On appeal, RCU argues, without making any express reference to any particular cause of action or court ruling, that the trial court erred in finding that (1) Ordinance No. 555 (RCC, § 5.48.010 et seq.) did not require County monitoring of mitigation efforts imposed by the SMP 145 conditions, and (2) the ordinance is superseded by RCC 17.116.010. It appears RCU is arguing that the trial court erred in rejecting its declaratory relief claim raised in the fifth cause of action.
RCU’s fifth cause of action seeks declaratory relief as to whether Superior is violating Ordinance No. 555 by operating the batch plant without a valid SMP.
When the trial court heard RCU’s writ petition in January 2003, it only considered the first cause of action. After the court denied RCU’s request in the first cause of action for writ relief, RCU stipulated to dismissing the fifth cause of action so that RCU could proceed with appealing the trial court’s ruling on the first cause of action for writ relief. Thereafter, RCU filed a request for voluntary dismissal of the second, third, fourth, and fifth causes of action without prejudice, which the court entered in March 2009.
Assuming RCU is arguing the trial court erred in rejecting RCU’s fifth cause of action claim, RCU abandoned the claim in the trial court when RCU requested dismissal of the fifth cause of action. (Cook v. Stewart McKee & Co., supra, 68 Cal.App.2d at p. 761.)
VIII
DISPOSITION
The judgment is affirmed. The parties are ordered to bear their own costs on appeal.
We concur King Acting P. J. Miller J.