Opinion
E067965
08-14-2018
DIANE SCHUMANN, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent; AL-NUR ISLAMIC CENTER et al., Real Parties in Interest.
Law Office of Betty C. Carrie Teasdale and Betty C. Carrie Teasdale for Plaintiff and Appellant. Jean-Rene Basle, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Defendant and Respondent. No appearance by Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1505906) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed. Law Office of Betty C. Carrie Teasdale and Betty C. Carrie Teasdale for Plaintiff and Appellant. Jean-Rene Basle, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Defendant and Respondent. No appearance by Real Parties in Interest.
I. INTRODUCTION
Plaintiff and appellant, Diane Schumann, petitioned for a writ of administrative mandate directing defendant and respondent, County of San Bernardino (the County), to reverse its issuance of a 12-month temporary use permit (the 2014 TUP), which allowed real parties in interest, Al-Nur Islamic Center (Al-Nur), Rashid Ahmed, and Kabir Ahmed, to temporarily operate a place of worship on a residential property in an unincorporated area of the County. The 2014 TUP expired on June 16, 2015, before the February 3, 2017, hearing on the petition. For this reason, the trial court entered judgment dismissing the petition as moot.
In this appeal, Schumann claims the judgment must be reversed and the matter remanded to the trial court to determine the merits of her petition. She claims her petition is not moot, even though the 2014 TUP has expired, because either one of two exceptions to the mootness doctrine applies. More specifically, she claims her petition is not moot because it raises issues of public interest which are likely to recur but evade review. Alternatively, she claims that even though her petition does not raise issues of public interest, her petition is not moot because she, real parties, and the County are likely to litigate the same issues in other litigation.
The County has filed a respondent's brief, but real parties have not filed a brief and have not joined the County's respondent's brief.
We conclude that the petition is moot and no exception to the mootness doctrine applies. Thus, we affirm the judgment dismissing the petition as moot.
II. FACTS AND PROCEDURE
A. Background/the Previously Challenged Mitigated Negative Declaration (MND) and Conditional Use Permit (CUP)
In February 2012, the County planning commission adopted an MND and approved a CUP, authorizing real parties to build and operate a two-story, 7,512-square-foot Islamic Center on a 1.54-acre property in an unincorporated area of the County. The project allowed the Islamic Center to be used for prayers, five times each day for one-hour periods between 5:00 a.m. and 9:00 p.m., with a maximum occupancy of 262 persons. The project also called for the demolition of the property's existing 2,200-square-foot residence.
Schumann and another neighbor of the proposed Islamic Center, as representatives of an entity called "SOURCE" (Save Our Uniquely Rural Community Environment) unsuccessfully appealed the MND and CUP to the County Board of Supervisors. SOURCE later filed a judicial action for a writ of administrative mandate in SOURCE v. County of San Bernardino et al., San Bernardino County Superior Court case No. CIVRS 1202473, challenging the MND and CUP on the grounds they were issued in violation of the California Environmental Quality Act and state and local planning and zoning laws.
In support of its writ petition, SOURCE argued, among other things, that substantial evidence supported a fair argument that the project could have adverse environmental impacts, "in the areas of sanitation, traffic, drainage, air quality and emissions, aesthetics and noise," and an environmental impact report (EIR) addressing these impacts was required. In December 2012, the court (Judge Barry L. Plotkin) granted the writ in part and directed the County to overturn the MND and CUP on the sole ground the County failed to properly analyze the project's potential impacts on "wastewater disposal," and directed the County to prepare a supplemental EIR addressing "wastewater issues." The court denied the writ petition on all other grounds. Since December 2012, the County has been in the process of preparing an EIR addressing wastewater issues for the Islamic Center project, and real parties have been using the existing 2,200-square-foot residence on the property to conduct daily prayers, pursuant to several successive temporary use permits (TUP's) issued pursuant to section 84.25 of the San Bernardino County Development Code (the SBCDC). B. The County Has Issued at Least Four TUP's to Real Parties Since 2013
The SBCDC authorizes the County to issue TUP's, authorizing "short-term activities" to be conducted for "specified time limits" not exceeding 12 months. (SBCDC, § 85.15.080.) The County may extend a TUP "for up to an additional 12 months" "but in no case shall these extensions exceed a total of five years." (SBCDC, § 85.15.080(f)(5).) In 2013, the County issued the first of several 12-month TUP's to real parties. The first TUP expired in June 2014. A second TUP was issued on June 15, 2014, and expired on June 16, 2015 (the 2014 TUP). The 2014 TUP is the subject of Schumann's current writ petition.
The 2014 TUP allowed real parties to "establish a place of worship within an existing 2,200 square foot residential structure . . . on 1.54 acres" (the property), in an unincorporated area of the County. The 2014 TUP provided that real parties could have "a maximum of 30 people" on the property at any one time for "daily prayers," and stated that the "anticipated hours for daily prayers" would occur between the hours of 5:00 a.m. to 6:00 a.m., 1:00 p.m to 2:00 p.m., 3:00 p.m. to 4:00 p.m., 6:00 p.m. to 7:00 p.m., and 8:00 p.m. to 9:00 p.m. The 2014 TUP was subject to further terms and conditions concerning, among other things, noise, lighting, refuse storage and removal, and water drainage. The 2014 TUP also required the property's septic system to be maintained "so as not to create a public nuisance."
The record shows the County issued at least two additional TUP's to real parties after the 2014 TUP expired in June 2015: a TUP effective March 1, 2016, to March 1, 2017 (the 2016 TUP); and a TUP effective November 1, 2016, to November 1, 2017 (the 2017 TUP). These TUP's are subject to the same terms and conditions as the 2014 TUP—except that the 2017 TUP allowed daily prayers to be conducted at any time between the hours of 5:00 a.m. and 10:00 p.m.
We grant the County's request to take judicial notice of the 2017 TUP, given that it constitutes an official act of the County, a public entity. (Evid. Code, §§ 452, subds. (b), (c), 459, subd. (a); see Trinity Park L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1027.)
The record does not indicate whether any TUP was issued for June 16, 2015, to March 1, 2016—the period following the expiration of the 2014 TUP and before the effective date of the 2016 TUP. The record also does not indicate whether a TUP was issued at any time after November 1, 2017, when the 2017 TUP expired. C. Schumann's Administrative Appeal of the 2014 TUP and Mandamus Petition
Schumann filed an administrative appeal of the 2014 TUP, and the County board of supervisors denied the appeal in a January 27, 2015, hearing. In April 2015, Schumann filed her present petition for a writ of mandate, asking the trial court to order the County to vacate and set aside its decision to approve the 2014 TUP. The petition claims real parties had been and were continuing to violate the terms and conditions of the 2014 TUP in numerous respects, including by allowing more than 30 people on the property at one time and by holding gatherings both before and after the 5:00 a.m. to 9:00 p.m. time frame allowed by the 2014 TUP. The petition also claims the County was refusing to enforce the terms and conditions of the 2014 TUP and had ignored repeated complaints by Schumann and others concerning real parties' violations of the 2014 TUP, including complaints of large gatherings on the property of up to 500 persons, excessive noise, lights, water runoff, trash, and other problems emanating from the property and real parties' use of the property as a place of worship. The petition claims the County abused its discretion in issuing the 2014 TUP for numerous reasons, including because a place of worship is incompatible with the rural character of the neighborhood, and the property's existing septic tank was insufficient to handle gatherings of up to 30 people on the property, several times each day. D. The Trial Court's Mootness Determination
The SBCDC allows any "affected party" to file an administrative appeal of the issuance of a TUP. (SBCDC, § 86.08.010.) Schumann argues that her appeal of the 2014 TUP stayed the order issuing the TUP, and meant that real parties were not authorized to operate a place of worship pending her appeal. We disagree. The SBCDC provides that "[a] properly filed application for appeal shall stay the proceedings in the matter appealed until a decision is rendered on the appeal" (SBCDC, § 86.08.020(f), italics added), but this provision does not state that the filing of an appeal stays the decision, order, or permit appealed. The SBCDC also provides that, "[u]pon hearing the appeal, the appeal body . . . may affirm, reverse, or modify, in whole or in part, the decision appealed." (SBCDC, § 86.08.050(a).) This provision plainly indicates that an appeal does not stay "the decision" appealed—here, the decision to issue the 2014 TUP.
In December 2015, after the 2014 TUP expired in June 2015, Schumann filed her opening brief in support of her petition. In August 2016, the County filed a "Notice of Mootness," claiming the petition was moot because the 2014 TUP had expired. At the February 3, 2017, hearing on the petition, the court ruled the petition was moot because the 2014 TUP had expired, and thus did not consider the merits of the petition. The court subsequently entered judgment dismissing the petition as moot. Schumann appeals.
III. DISCUSSION
Schumann claims her petition was erroneously dismissed as moot. We disagree. A. The Mootness Doctrine, Generally
"A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief." (Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069 (Californians for Alternatives.) A moot case is one in which an actual controversy existed but has ceased to exist due to the passage of time or a change of circumstances. (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 322.) Because a moot case no longer involves an actual controversy, it is unnecessary to decide the case on its merits. (Ibid.) A trial court's mootness determination is reviewed de novo, particularly when the facts relevant to the mootness determination are undisputed. (Id. at p. 319.)
In this case, the trial court correctly concluded, based on undisputed facts, that the petition was moot. The petition sought to reverse the County's January 27, 2015, denial of plaintiff's administrative appeal of the 2014 TUP, and to order the County to vacate and set aside the 2014 TUP. But the 2014 TUP expired in June 2015—before the trial court could determine the merits of the petition at the February 3, 2017, hearing on the petition. By that time, the court could not have granted Schumann any effective relief on her petition, even if it had merit, because the 2014 TUP had expired. A judgment ordering the County to vacate and set aside the 2014 TUP would have had no practical effect, given that the 2014 TUP was no longer in effect and real parties were no longer operating a place of worship pursuant to the 2014 TUP. B. The Two Claimed Exceptions to the Mootness Doctrine Do Not Apply
Schumann claims that one of two exceptions to the mootness doctrine applies, and the trial court erroneously failed to apply at least one of these exceptions. The first exception applies if the case involves an issue of broad or continuing public interest, which is likely to recur yet evade review. (Californians for Alternatives, supra, 136 Cal.App.4th at p. 1069.) The second exception applies if the same issue or controversy is likely to recur between the parties before the court, even if the issue is not of broad or continuing public interest. (Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1034 (Bullis).)
A third exception applies "when a material question remains for the court's determination." (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 480.) Schumann does not claim this exception applies. --------
Although mootness determinations are generally reviewed de novo, the trial court has "'"inherent discretion"'" to resolve an otherwise moot issue if the public interest exception applies. (Robinson v. U-Haul Co. of California, supra, 4 Cal.App.5th at p. 319.) Thus, the trial court's determination that the public interest exception applies is arguably subject to an abuse of discretion standard of review. (Ibid.) But regardless of whether the de novo or abuse of discretion standard applies to the trial court's determinations, we would conclude under any standard of review that the trial court did not err in failing to apply either of the claimed exceptions to the mootness doctrine.
To begin with, the petition did not raise any issues of broad or continuing public interest. Without minimizing the import of the complaints Schumann raised in her petition—in sum, that the County abused its discretion in issuing the 2014 TUP, that real parties had violated and were continuing to violate the terms and conditions of the 2014 TUP, and that the County had ignored and was continuing to ignore complaints of Schumann and others concerning these violations—these issues were solely of interest to Schumann, other persons who lived near the property, and real parties. These issues did not in any way concern the interests of the general public, or even the County at large.
Additionally, the precise issues raised in Schumann's petition and her underlying administrative appeal of the 2014 TUP are not likely to recur between Schumann, real parties, and the County. To be sure, the County has issued at least two additional TUP's to real parties following its issuance of the 2014 TUP: (1) the 2016 TUP, effective March 1, 2016, to March 1, 2017, and (2) the 2017 TUP, effective November 1, 2016, to November 1, 2017. The record also indicates that Schumann has filed another petition challenging the County's denial of her administrative appeal of the 2016 TUP.
But Schumann's current petition only concerns real parties' compliance with, and the County's issuance of, the 2014 TUP. Any other pending or future petition challenging the County's denial of an administrative appeal of any subsequently-issued TUP, including the 2016 and 2017 TUP's, will necessarily be based on additional evidence not adduced on Schumann's current petition. For this reason, the trial court could not have granted any effective relief on Schumann's current petition, and did not err or abuse its discretion in determining that the current petition was moot. C. Cases Applying the Exceptions to the Mootness Doctrine are Distinguishable
Schumann relies on several cases to support her claim that one of the exceptions to the mootness doctrine applied here. But unlike the issues raised in Schumann's petition, the cases Schumann relies on involved issues of general or continuing public interest, or issues that were likely to recur between the parties before the court.
For example, in Rawls v. Zamora (2003) 107 Cal.App.4th 1110, at page 1113, the appellate court considered the plaintiff's otherwise moot claim that a Government Code statute was unconstitutional, given the "obvious public interest in the constitutionality" of the statute and the likelihood that the "plaintiff or others" would raise the same constitutional claim in subsequent cases. In contrast, Schumann's petition raises no constitutional issue of general or continuing public interest.
Schumann's reliance on two additional cases, Californians for Alternatives, supra, 136 Cal.App.4th 1049 and Bullis, supra, 200 Cal.App.4th 1022, is equally unavailing. The former case involved the California Department of Pesticide Regulation's issuance of several annually-renewable pesticide registrations. (Californians for Alternatives, supra, at p. 1055.) The plaintiff filed a mandamus petition challenging the department's decision to renew several pesticide registrations for the 2002 calendar year. (Ibid.) The department could renew a registration without reevaluating the potential adverse health or environmental impacts of the pesticide, if it made a written finding that it had not received sufficient information that a significant adverse health or environmental impact of the pesticide had occurred or was likely to occur. (Id. at p. 1058.)
During the public comment period on the 2002 renewals, the plaintiff submitted information to the department indicating that some of the pesticides were likely to have a significant adverse impact on amphibean species. (Californians for Alternatives, supra, 136 Cal.App.4th at p. 1060.) The department evaluated the information and concluded it did not show a definitive link between the pesticides and declines in the amphibian species. (Id. at pp. 1062-1063.) The trial court dismissed the plaintiff's mandamus petition as moot, explaining that the department's annual registration renewals effectively replaced, and thus mooted, any legal challenge to the department's decision to renew the registration for previous years. (Id. at p. 1069.)
The Californians for Alternatives court concluded that the petition was not moot because it raised important issues of public policy that were likely to recur but evade review due to "the cyclical nature of the renewal process." (Californians for Alternatives, supra, 136 Cal.App.4th at p. 1069.) The court explained that "the timing of renewals creates an impossible burden for those seeking to challenge the Department's decisions. The annual nature of the pesticide renewal program virtually ensures that litigation seeking mandamus relief against a registration renewal will not be resolved before the next annual renewal occurs." (Ibid.) The court proceeded to review the mandamus claims, even though the trial court did not address them, because the record contained "all the information necessary to review [the] claims de novo." (Id. at p. 1070.)
Bullis involved a charter school that petitioned for a writ of mandamus, claiming a school district had violated state law in failing to provide the charter school with facilities for the 2009-2010 school year that were "reasonably equivalent" to the facilities the charter school students would have if they attended other public schools in the district. (Bullis, supra, 200 Cal.App.4th at p. 1029.) The 2009-2010 school year had ended by the time appellate briefing was completed on the petition. (Id. at p. 1032.) On its own motion, the Bullis court invited additional briefing on and considered whether the petition was moot. (Id. at p. 1034.) The court determined the petition was not moot because it raised issues of public interest that were likely to recur. (Id. at pp. 1032-1034.)
Schumann argues Californians for Alternatives and Bullis are "on all fours" with this case "in terms of the problem presented by annual renewals." We disagree. To begin with, the issues raised in Californians for Alternatives and Bullis were of general and continuing public interest, but that is not the case here. Moreover, the courts in Californians for Alternatives and Bullis were able to grant effective relief to the parties based on the administrative records before them, but that is also not the case here. In her current petition, Schumann claims real parties failed to comply with the 2014 TUP and that the County abused its discretion in issuing the 2014 TUP in the first instance. But determining the merits of these claims will not grant the parties any effective relief vis-a-vis any future or currently pending claims that real parties violated or that the County abused its discretion in issuing any subsequent TUP's, including the 2016 and 2017 TUP's. The evidence that real parties violated any subsequent TUP cannot be based solely on evidence that they violated the 2014 TUP. Likewise, if the County abused its discretion in issuing the 2014 TUP, that does not mean it abused its discretion in issuing any subsequent TUP's. As indicated, any future or pending petition will necessarily be based on additional evidence not adduced on the current petition.
IV. DISPOSITION
The judgment dismissing Schumann's petition is affirmed. Respondent shall recover its costs on appeal. (Cal. Rule of Court, rule 8.278.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MILLER
J.