Opinion
C073598
08-02-2017
ROGER TOWERS et al., Plaintiffs and Appellants, v. COUNTY OF SAN JOAQUIN et al., Defendants and Respondents; TEICHERT, INC, et al. Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 39200900231065CUWMSTK)
The County of San Joaquin denied the application of plaintiffs/petitioners Roger Towers, Catherine Towers, and House and Land, Inc. (plaintiffs), to build houses on their land. The land was in an area designated for open space and resource conservation (OS/RC) in accordance with the Surface Mining and Reclamation Act of 1975 (Pub. Resources Code, § 2710 et seq.). Plaintiffs filed a petition for writs of traditional and administrative mandamus, a complaint for declaratory and injunctive relief, and a complaint for damages for federal civil rights violations against the County, its employee Kerry Sullivan in her official and personal capacity, and its board of supervisors (collectively, the County). The pleading named as real parties in interest (RPIs), owners/operators of mining operations in the vicinity of plaintiffs' land: Teichert, Inc., Triangle Properties, Inc., Frank J. Raspo, Erlene R. Raspo, Robert Raspo (collectively, Teichert); RMC Pacific Materials, Inc., Lone Star California, Inc., and Gerald A. Costa (collectively, CEMEX); and other real parties in interest who are not parties to this appeal.
House and Land, Inc., has an equitable interest (purchase agreement) in the property. House and Land, Inc., is wholly owned by the Towerses.
Undesignated statutory references are to the Public Resources Code in effect at the time the petition was filed.
Plaintiffs' 118-page pleading alleges the County acted improperly in (1) denying plaintiffs' request to redesignate their property, (2) granting a one-year extension for Teichert's and CEMEX's mining permits, (3) adopting ordinance No. 4381 extending mining permits for an additional two years, and (4) violating statutory requirements for implementation of general plans. According to the pleading, "[t]he objective of this action is threefold. First is to right the imbalance that has occurred between equally important issues of great public interest in this relatively small and sparsely populated area of San Joaquin County by restoring the rule of land use and environmental law so that it is consistent, comprehensible and coherent. Second is to ensure compliance with basic planning law and environmental mitigation in the County as a whole. Third[], [plaintiffs] seek redress for the damages that [plaintiffs] have suffered as a result of the [r]espondents' maladministration of the law."
The trial court rejected some of plaintiffs' claims by demurrer, others following a bench trial, and others by summary adjudication of issues. Plaintiffs dismissed the remaining claims without prejudice. Thereafter, the trial court entered judgment against plaintiffs on all counts.
Plaintiffs' 108-page opening brief summarizes the "issues on appeal" as the County's (1) failure to prepare annual reports on the status of implementation of the general plan adopted in 1992, (2) failure to report on the status of the general plan's mitigation monitoring plans, (3) failure to implement general plan mitigation measures, (4) failure to submit ordinance No. 4381 to planning commission review, codification procedures, and environmental review, (5) approval of a one-year extension of Teichert's and CEMEX's quarry excavation permits, (6) misrepresentation of general plan land use designations by the county community development department (CDD) in 1997 so that some quarries could meet siting criteria defined by ordinance, and (7) preparation and presentation of allegedly "phony" maps after plaintiffs challenged the land use designation of their parcels.
According to plaintiffs, this case is about the County's "subversions and intolerable conduct" in deliberately failing to comply with land use planning statutes for implementation of general plans "to the benefit of mining interests." Plaintiffs' objective is to obtain a court order directing the County to "cease and desist issuance of building permits and other entitlements" until several conditions are met; require the County to pay for a special master to monitor CEQA mitigation monitoring and reporting compliance; provide the special master with specified authority; and require the special master to prepare bi-monthly reports submitted to the court and plaintiffs' attorney.
The conditions plaintiffs ask the court to order include: "a. complete[] a 'Progress Report[,'] as defined by San Joaquin County Development Title Chapter 9-1055 on the Status of its Comprehensive Planning Program (CCP); [¶] b. amend[] the General Plan to incorporate air quality strategies consistent with the adopted mitigation and Government Code section 65302.1 (b); [and] [¶] c. prepare[] and receive[] approval by the Court of a plan to implement remaining mitigation associated with the CCP without prejudicing attainment of actual mitigation." Building permits for repairs to structural, electrical, plumbing, roofing, and similar building components would be exempt from plaintiffs' requested order.
As requested by plaintiffs, the special master would have "the authority to implement reasonable time frames for reporting with the intent that reporting be completed as expeditiously as possible" and the County would be "required to prepare such documentation as may be required by the [s]pecial [m]aster to identify projects for which San Joaquin County is responsible for ensuring implementation of adopted mitigation measures."
As to claims of misfeasance, dereliction of duty, and subversion in violating statutory requirements for general plan implementation intertwined within each count, we conclude that plaintiffs lack standing. They lack special interest standing because they fail to show any nexus between the general implementation duties and the grievances they contend affect them, namely the OS/RC designation of their property and extensions of the neighbors' mining permits. Without such a nexus, plaintiffs have no beneficial interest sufficient for traditional mandamus relief regarding general defects in implementation of the general plan. They also lack standing to proceed as a citizens' public interest suit to challenge the County's violation of statutory duties regarding implementation of the general plan. Plaintiffs' strategy of rebranding these claims as federal civil rights violations avails them of nothing.
As to the County's actions which plaintiffs contend affected them, we conclude (1) plaintiffs' contentions about the OS/RC designation of their property are barred by the statute of limitations; (2) plaintiffs' challenge to ordinance No. 4381 is barred by failure to exhaust administrative remedies; and (3) plaintiffs' challenge to the one-year extensions of mining permits fails on the merits. Notably, this case involves only extensions of mining permits, not issuance of mining permits. The extensions merely extended the expiration dates of existing permits and did not expand the scope of activity allowed by the permits.
Prior to oral argument, the County filed a motion to partially dismiss on the grounds that certain causes of action addressed in this appeal are moot because the County adopted a new general plan in December 2016. Additionally, the County requested we take judicial notice of various documents submitted in support of the motion. We granted the request for judicial notice so that it is clear we reviewed everything the County submitted, but denied the motion to partially dismiss.
BACKGROUND
The Surface Mining and Reclamation Act of 1975 (SMARA)
SMARA was enacted with codified legislative findings "that the extraction of minerals is essential to the continued economic well-being of the state and to the needs of the society, and that the reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety." (§ 2711, subd. (a).) "It is the intent of the Legislature to create and maintain an effective and comprehensive surface mining and reclamation policy with regulation of surface mining operations so as to assure that: [¶] (a) Adverse environmental effects are prevented or minimized and that mined lands are reclaimed to a usable condition which is readily adaptable for alternative land uses. [¶] (b) The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment. [¶] (c) Residual hazards to the public health and safety are eliminated." (§ 2712.)
" 'Reclamation' means the combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion, and other adverse effects from surface mining operations, including adverse surface effects incidental to underground mines, so that mined lands are reclaimed to a usable condition which is readily adaptable for alternate land uses and create no danger to public health or safety. The process may extend to affected lands surrounding mined lands, and may require backfilling, grading, resoiling, revegetation, soil compaction, stabilization, or other measures." (§ 2733.)
The state geologist has the duty to classify areas that contain mineral deposits and are of regional or statewide significance. (§ 2761, subd. (b)(2).) The County, as the lead agency (§ 2728) then establishes "mineral resource management policies" to be incorporated in its general plan to "[r]ecognize mineral information classified by the State Geologist," "[a]ssist in the management of land use which affect areas of statewide and regional significance," and "[e]mphasize the conservation and development of identified mineral deposits." (§ 2762, subd. (a)(1)-(3).)
The State Mining and Geology Board (SMGB) (§ 2008) is authorized to adopt regulations to implement SMARA. (§ 2755.) One such regulation, California Code of Regulations, title 14, section 3676, authorizes agencies to create overlay maps to delineate identified mineral deposits and those areas targeted by the lead agency for conservation and possible future extraction, and to create special purpose overlap zones to restrict the encroachment of incompatible land uses in those areas that are to be conserved.
Factual Background
Because some of plaintiffs' claims were decided on demurrer based on the complaint's allegations, our summary of the factual and procedural background includes the pleading's factual allegations where appropriate. We also include, as background, events dating back to 2002, long before plaintiffs initiated this lawsuit in 2009, because plaintiffs attempt in this current lawsuit to revive stale claims. We explain why those attempts fail, post.
In March 2001, the Towerses bought three adjacent parcels of land totaling approximately 19 acres in the Vernalis area in southern San Joaquin County. The land, a narrow strip running north-south, is bound on the east by the Delta-Mendota Canal and on the west by aggregate mining operations.
The County's brief incorrectly states that the land is 10 acres.
The nearby land with the mining operations and most of plaintiffs' three parcels are in an area designated by the County as OS/RC, an area of regional significance containing significant mineral resources (§ 2726), specifically the "Tracy East Area" of the general plan's conservation element. This designation followed the classifications of such properties as being within the Mineral Resource Zone, MRZ-2. The state geologist gave the properties this classification in 1988 and reiterated it in 2012. In accordance with SMARA, the County in its "General Plan 2010," adopted July 29, 1992, included within the general plan conservation element a "General Plan 2010 Map" designating specific areas as OS/RC to protect significant natural resources areas.
The OS/RC requirements of the general plan were implemented through the County's zoning code, which the County calls "Development Title." (See San Joaquin County Code, title 9; hereafter, Development Title.) Development Title, chapter 9-1525, is entitled "Mineral Resources Protection." Development Title, chapter 9-1525, section 9-1525.1, states: "The intent of Chapter 9-1525 is to 'provide regulations to protect mineral resources that are shown as [OS/RC] on the General Plan 2010 Map from urban development or encroachment and to manage the production of such mineral resources in an environmentally sound manner.' " The Development Title specifies that landowners who want a "nonextractive project" such as a residence in an area of significant sand and gravel deposits, must file an application for site approval with the County, which has discretion to approve or disapprove it.
Before plaintiffs purchased the three parcels in 2001, plaintiffs consulted with County staff. Staff informed plaintiffs that the property was designated OS/RC in the county general plan adopted on July 29, 1992, and plaintiffs could not build on the land without first obtaining a "site approval" from the County, which the County had discretion to approve or disapprove.
When plaintiffs purchased their property, Teichert already had a quarry excavation permit (QX-91-5), conditionally approved by the County in 1992. In the 1992 approval, the County found the quarry project would cause significant unavoidable environmental effects on air quality, but overriding considerations of the economic importance of mineral resources were substantial. In 1996, the County granted Teichert a one-year extension (not the extension at issue in this case).
In 2002, the Towerses applied for site approval to build a house on each of the three parcels, plus an accessory dwelling on the largest parcel. The application was administratively approved by county staff but two mining companies, who were applying for quarry excavation permits in the area, appealed. The planning commission subsequently granted the appeal and revoked the Towerses' site approval permits on January 9, 2003. The Towerses appealed to the board of supervisors, which denied the appeal on March 25, 2003.
Thereafter, the Towerses submitted a preliminary application for a general plan amendment to change their property's designation. They withdrew the application when they learned the County was not approving applications that created additional demand on groundwater.
On February 24, 2004, the Towerses filed an administrative appeal of the County's determination that their property is within the OS/RC land use area. Plaintiffs argued their property should be designated general agricultural (AG), which would mean they could build their houses as a matter of right with building permits, rather than needing discretionary approval from the County. Plaintiffs allege in this lawsuit that, unbeknownst to them, the County's planning staff modified the boundary and data for the OS/RC district on March 4, 2004. Plaintiffs also allege that, at the planning commission hearing to consider their appeal on or about April 1, 2004, CDD staff "phony" maps, which were unauthorized versions of the general plan map. Plaintiffs alleged CDD misrepresented that a map prepared using new technology, the County's geographical information system, had been compared to and conformed with the originally adopted general plan map.
The planning commission denied the Towerses' administrative appeal seeking redesignation.
Thereafter, the Towerses appealed to the board of supervisors, which denied the appeal on April 27, 2004.
On June 18, 2004, plaintiffs filed in the trial court a writ petition (which is not the subject of this appeal) seeking judicial review of the County's refusal to redesignate their property. However, plaintiffs did not prosecute that case. As alleged in the current pleading, plaintiffs—"[s]eeking a remedy as a less costly and more efficient alternative to litigation"—explored settlement and asked the County for a "Development Title" (zoning) amendment to allow non-extractive projects for parcels within the OS/RC area for which excavation was infeasible. The County ultimately rejected plaintiffs' proposed zoning amendment in June 2008. Plaintiffs applied for a permit to use their land for a truck-parking facility with a residence for "security." The County denied the application for a residence. In October 2009, the trial court dismissed the 2004 writ petition, without prejudice, due to plaintiffs' failure to bring the matter to trial within five years (Code Civ. Proc., § 583.310).
Meanwhile, in 2005 and 2006, Teichert applied to expand the area of its quarry excavation permit. In 2007, the planning commission certified an environmental impact report (EIR), finding overriding considerations for approval despite significant unavoidable impacts, and approved the quarry excavation permit. Plaintiffs objected and appealed to the board of supervisors. But as plaintiffs' acknowledge in their pleading in the current lawsuit, they "elected to negotiate a settlement agreement with Teichert, and withdrew their appeal on December 10, 2007, and the modification of Quarry Excavation Permit QX-91-5 for expansion to the Vernalis East & West areas became final." Plaintiffs allege they were "induced" to drop the appeal of the Teichert project because they thought the County was going to approve their application for the zoning amendment.
In July 2008, the County approved a quarry excavation permit for CEMEX after certifying an EIR, findings of significant environmental effects, and overriding considerations. Plaintiffs did not object.
Plaintiffs allege that, on or about July 14, 2009, the board of supervisors determined that plaintiffs' parcels are not suitable for mineral excavation.
The designation of an area as having significant mineral resources also protects the area from encroachment by incompatible land uses. (Cal. Code Regs., tit. 14, § 3676.) Plaintiffs argued at the planning commission hearing in April 2004 that very low density development is not incompatible with mineral resource development. This appeal does not require us to address whether plaintiffs' proposed houses would be incompatible, but we note that the fact the mining operations were there first would not necessarily preclude residents of any such houses from complaining that the mining operations were a nuisance. (47 Cal.Jur.3d (2010) Nuisances, § 82.)
In 2009, Teichert and CEMEX applied for one-year extensions of their mining permits, due to the decline in the economy. These are the extensions challenged by plaintiffs. CEMEX asserted: "The global economic meltdown has reduced demand for construction products including aggregate, which has made it economically infeasible for Cemex to prepare for and commence operations at the Vernalis Quarry according to the original planned schedule."
In July 2009, the County approved the one-year extension for Teichert's and CEMEX's mining permits, after adopting a negative declaration that no EIR was required because no change in the permit conditions was sought. Plaintiffs challenged the one-year extensions and the board of supervisors, after a public hearing in December 2009, rejected plaintiffs' challenge.
The County argues on appeal that it was not actually required to do a negative declaration, because nothing changed.
On September 29, 2009, the board of supervisors adopted "Ordinance No. 4381," "extend[ing] by twenty-four (24) months the expiration date of any site approval, use permit, or quarry excavation permit that had not expired on July 15, 2009." Ordinance No. 4381 stated: "On July 15, 2009, the California Legislature enacted AB 333 as an urgency ordinance extending the life of certain tentative maps twenty-four (24) months. This was in addition to the twelve-month extension for certain tentative maps provided by SB 1185, enacted July 15, 2008. The Legislature enacted SB 1185 and AB 333 in order to preserve development projects that could not proceed because of adverse economic conditions in the construction industry. Because the economy has not significantly improved and local conditions for the construction industry remain difficult, this Ordinance grants a similar extension for site approvals, use permits, and quarry excavation permits." The ordinance specified the extension was being adopted "[n]ot withstanding the provisions of Section 9-215.14 and Section 9-220.13 of the Development Title of San Joaquin County . . . ."
Development Title, chapter 9-215, section 9-215.14, provides: "Unless otherwise specified, approved applications shall lapse and become void eighteen (18) months after the effective date of approval if any of the following occur: [¶] (a) Requirements or Conditions. A standard requirement or condition of approval has not been complied with; [¶] (b) Building-Related Permits. A required building, electrical, plumbing, or mechanical permit that has been secured has lapsed and become void; or [¶] (c) Other Permits. A required permit that has been secured from any other public agency has lapsed and become void." (Adopted by San Joaquin Ord. No. 3675, July 29, 1992.)
Development Title, chapter 9-220, section 9-220.13, contains the same language as section 9-215.14, except section 9-220.13 speaks of approved applications "for nonlegislative actions" and cites ordinance No. 3675 and No. 3715 (adopted March 9, 1993).
The Pleading
Plaintiffs initiated this lawsuit on December 1, 2009. On October 12, 2010, plaintiffs filed the operative pleading in this appeal -- the "Second Amended Petition for Writ of Mandate to Compel Performance of Mandatory Duties; Complaint for Declaratory and Injunctive Relief; Petition for Writ of Mandate to Review Administrative Decisions; Complaint for Damages for Violation of Civil Rights Under Color of Law."
In their pleading, plaintiffs label five "causes of action" for five remedies they seek:
(1) A petition for writ of mandate, pleaded as both traditional mandate and administrative mandate, to invalidate County's ordinance No. 4381 -- which extended mining permits for two years -- on multiple grounds including alleged violations of the California Environmental Quality Act (CEQA, § 21000 et seq.) and land use planning laws (Gov. Code, § 65009 et seq.);
(2) Declaratory and injunctive relief (Code Civ. Proc., §§ 1060, 525, 526, 527) to declare mining permits and extensions void and to require the County to comply with multiple land use planning laws regarding its general plan;
(3) Petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) seeking to require the County to change the general plan's OS/RC designation for plaintiffs' property;
Plaintiffs, recognizing this stale claim dated back to the County's 2004 denial of their request for redesignation, invoked the delayed discovery rule for fraud and alleged they did not discover until recently and could not have earlier discovered that the County used "phony maps."
(4) Petition for writ of administrative mandate to invalidate the County's grant of one-year extensions for the mining permits of Teichert and CEMEX; and
(5) A claim for money damages for alleged civil rights violations (42 U.S.C. § 1983), claiming the County's actions deprived plaintiffs of property interests in violation of federal due process and equal protection. This count also alleged fraud by defendant Sullivan.
The Demurrers
The County, Teichert, and CEMEX filed separate demurrers -- the grounds of which are made apparent in the following summary of the trial court's rulings.
This court denied plaintiffs' several writ petitions to this court (Nos. C068959, C071780, & C072272), including challenge to the rulings on demurrer.
The County's Demurrer
In June 2011, the trial court issued an order sustaining the County's demurrer, without leave to amend, as to the third cause of action (writ petition challenging the OS/RC designation), on the ground it was barred by the three-year statute of limitations of Code of Civil Procedure section 338, subdivision (d). The court ruled that the pleading filed in December 2009 was not filed within three years of the board's April 2004 denial of plaintiffs' request to change the designation of their land. The trial court observed it previously sustained the County's demurrer (with leave to amend) as to the same claims in plaintiffs' first amended pleading on the same ground, and "[n]othing has really changed . . . ."
Code of Civil Procedure section 338, subdivision (d), provides a three-year statute of limitations for "[a]n action for relief on the ground of fraud or mistake."
Addressing plaintiffs' allegations that they did not know and, in the exercise of reasonable diligence, could not have known between 2004 and 2008 that the County was misrepresenting the facts in their maps, the trial court rejected plaintiffs' reliance on the doctrines of delayed discovery, equitable tolling, or fraudulent concealment. The court noted, "a significant fact is the admission/allegation that at the Planning Commission hearing on the issue which was held on April 1, 2004, [plaintiff] Roger Towers asserted that the maps were wrong or in error." The court also noted the pleading's allegations that plaintiffs retained the law firm of Miller Starr Regalia on February 18, 2005, specifically to review the 2004 writ petition; hired another law firm to review the 2004 petition in August 2006, and submitted a public records request by October 2007. The court stated, "As pled, there is no showing of diligence in pursuing the information which is now the basis of this writ petition. In fact, [plaintiffs] had presumptive knowledge that the maps were wrong and yet, allowed their timely challenge to the April 27, 2004 decision to uphold the OS/RC designation to lapse and ultimately, be dismissed."
The pleading alleged: "In response to [plaintiff] Roger Towers' assertions at the Planning Commission hearing on April 1, 2004 that the maps were wrong or in error: Sullivan stated: '[]The designation in fact is not wrong. It's Mr. Towers' opinion that it is wrong. We stand by our maps.' "
The trial court also stated there was no basis for equitable tolling of the limitations period, because plaintiffs "immediately challenged the County's action and decision regarding the OS/RC designation in 2004 which is the same decision being challenged in this 2009 writ petition[] but admittedly, they did not pursue the writ because they decided to pursue other avenues of resolution[]. . . . [¶] There was nothing defective in the first action; it was simply not pursued. Petitioners had a sense that something was wrong with the General Plan map; they had an opportunity to conduct discovery and get to the bottom of the issue, but they chose not to do so until 2007. There is no allegation that they were persuaded or otherwise misled into non-action with regard to the 2004 writ petition. Moreover, pursuing legal action and pursuing other avenues of resolution w[e]re not mutually exclusive options."
The trial court noted that plaintiffs at oral argument raised the issue of fraudulent concealment as an " 'adjunct' " of the delayed discovery doctrine. The trial court rejected the argument for three reasons.
First, there was no fraudulent concealment inducing plaintiffs to refrain from filing suit; to the contrary, plaintiffs timely filed suit.
Second, the allegations, "when read as a whole, allege that an error was made by County/County employees in interpreting and/or applying the maps and the various planning and zoning laws and those errors have le[d] to County's misrepresentations and/or perpetration of false information. There is absolutely no factual allegation that such errors were knowingly, willfully or purposefully done with the intent to induce [plaintiffs] -or anyone- to refrain from filing suit or otherwise taking action to protect their interests. The allegations are to the effect that there is a difference of opinion between [plaintiffs] and County about the laws, their interpretation and their application."
The court noted just one allegation of intentional misrepresentation, i.e., that defendant Sullivan " 'intentionally misrepresented the intent and background . . . Her testimony was false and is substantially, if not wholly contradicted by either her own prior comments or representations or the comments/representations of other . . . staff members . . . .' "
The court also noted the pleading contained conclusions of fraud, e.g., the allegation that plaintiffs had no basis to believe between 2004 and 2008 " 'that county staff had engaged in fraudulent conduct.' " The court correctly noted that demurrers concede the truth of factual allegations only, not legal conclusions. (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439-440 (Stearn).)
The third reason the trial court gave for rejecting fraudulent concealment was that "[plaintiff] Roger Towers did not allege that he was misled or otherwise relied upon the statement and representations made by County in deciding not to pursue the 2004 writ. He had admitted that he decided to seek alternative resolutions, negotiate, and settle his issues with the County. . . . Moreover, the allegations of the [second amended petition] establish that Roger Towers is a planner and therefore, familiar with planning laws, their interpretation and application. . . . His actions (that is, immediately filing the 2004 writ petition) show he did not believe or otherwise rely or accept the statements and explanations given by the County in their staff reports and presentations. [¶] Accordingly, fraudulent concealment has not and cannot be adequately pled by [plaintiffs] as a means to toll the statute of limitations for the Third Cause of Action."
Teichert's Demurrer
In June 2011, the trial court issued an order sustaining Teichert's demurrer to the second and fourth causes of action, without leave to amend.
As to the second count, the trial court noted that plaintiffs urged that it involves much more than the propriety and/or validity of the quarry permits. According to plaintiffs, the cause challenges the permits, and the policies and practices of the County by which the permits were approved and extended. The trial court ruled as follows:
"To be sure, the only interest TEICHERT and the other RPIs have in this action is the validity of their quarry permits. In the demurrer, there is no discussion of the underlying policies, practices, etc. of the County in approving and/or extending the quarry permits. Yet, those permits, according to [plaintiffs], are the sum result of the errors of the County in interpreting the General Plan, implementing its policies, etc. In other words, according to [plaintiffs], the validity of the quarry permits depends upon the propriety of the County's actions. The problem- [plaintiffs] argue- is that the RPI[s'] demurrers presume the propriety of the County's actions. The Second Amended Petition, however, challenges the County's action which, in turn, affects the RPIs' permits.
"In previously addressing the RPIs' demurrer[] to the Second Cause of Action [in the prior pleading], the Court sustained the demurrer, with leave to amend, on grounds of uncertainty explaining that 'it is unclear from the allegations of the Second Cause of Action whether the individual permits are being challenged and/or are the focus of the requested declaratory/injunctive relief or whether the permitting process was the focus of the cause of action. Leave to amend was granted in order to allow [plaintiffs] to clarify that point."
The trial court noted that the current pleading sought to remedy past wrongs by attacking individual quarry permits issued in 1992, 2007, and a one-year extension granted on July 16, 2009. Plaintiffs filed an administrative appeal of the 2007 permit but elected to settle that case. Plaintiffs filed an administrative appeal of the July 2009 grant of the extension; the board of supervisors denied the appeal on December 8, 2009. Plaintiffs initiated this lawsuit on December 1, 2009.
The trial court observed that Government Code section 65009, subdivisions (c)(1)(E) and (e), provides a 90-day statute of limitations.
Government Code section 65009 provides in part: "(c)(1) . . . [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 Sections 65901 [decision on applications for conditional uses and other permits under zoning ordinances] and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit. [¶] . . . [¶] (e) Upon the expiration of the time limits provided for in this section, all persons are barred from any further action or proceeding."
Accordingly, the trial court ruled that plaintiffs' challenges to the 1992 permit and the 2007 permit were barred by the statute of limitations. Only the challenge to the 2009 extension remained viable from the statute of limitations perspective.
The trial court then agreed with another ground for demurrer asserted by Teichert—the conditional use permits at issue here may be challenged only by administrative mandate, not declaratory relief. The court added, "The issue of whether the Second Cause of Action was a challenge to the permits or to the permitting process was raised at the last demurrer and [plaintiffs] were asked to clearly state their cause and request for relief. The Second Amended Petition ('SAP') was amended to exclude some of the direct attacks on the quarry permits, but attacks, nonetheless, remain and there is a request for relief which, in effect, seeks to invalidate already approved quarry permits and their extensions."
The trial court sustained Teichert's demurrer to the second count without leave to amend.
As to the fourth count, which challenged the County's approval of the one-year permit extension, the trial court sustained Teichert's demurrer without leave to amend as to the CEQA claim, because the one-year extension was not a " 'project' " triggering a need for CEQA review. As to plaintiffs' argument that the extension could not rely on the previously-adopted EIR and required at least a " '[n]egative [d]eclaration,' " the court replied that in order for CEQA to be implicated, there must be a need for supplemental review, but the pleading contained no allegation of a new or changed activity with significant environmental impact warranting supplemental review. Instead, the pleading merely alleged changed circumstances, i.e., "corrected information to consider as part of the EIR. That is not the test." The court noted it had given plaintiffs the opportunity to amend the previous pleading and had specifically advised plaintiffs of the need to include an appropriate allegation, but none was included in the second amended petition.
CEMEX's Demurrer
In June 2011, the trial court issued an order sustaining the demurrer in part, without leave to amend, stating:
"As to the CEMEX's demurrer to the First Cause of Action
"As to the ground that Ordinance 4381 is not subject to a CEQA challenge, the demurrer is sustained without leave to amend. As to the ground that retroactive application of Ordinance 4381 is unconstitutional, the demurrer is sustained without leave to amend. As to the ground that [plaintiffs'] challenge to Ordinance 4381 on the basis that County failed to prepare and file annual reports and maintain mitigation monitoring, and the action is barred by the statute of limitations, the demurrer is overruled.
"As to CEMEX's demurrer to the Second Cause of Action
"As to CEMEX's demurrer to the Second Cause of Action on the ground that declaratory relief is neither proper nor available to remedy past wrongs or attack individual quarry excavation permits already approved, the demurrer is sustained without leave to amend.
"As to CEMEX's demurrer to the Fourth Cause of Action
"As to CEMEX's demurrer to the Fourth Cause of Action on the ground that CEQA is not applicable because the extension granted is not a project, the demurrer is sustained without leave to amend." (Boldface omitted.)
Summary of Orders on Demurrers
The trial court sustained without leave to amend:
1. The County's demurrer to the third count;
2. Teichert's demurrer to the second count in its entirety, and the CEQA claim in the fourth count.
3. CEMEX's demurrer to the first count as to the claims about CEQA and retroactive application of the ordinance, to the second count in its entirety, and the CEQA claim in the fourth count.
Bench Trial and Trial Court's Order
On May 18, 2012, the trial court conducted a bench trial on the first and fourth counts seeking writs of mandate to invalidate ordinance No. 4381 and to invalidate the one-year extension of mining permits. No witness testified. The trial court heard argument from the attorneys and accepted documentary evidence.
On June 29, 2012, the trial court issued a 26-page written order denying plaintiffs' petition for writs of mandate in the first and fourth counts, as follows:
First Count - Ordinance No. 4381
Failure to Exhaust Administrative Remedies
The trial court first concluded plaintiffs lacked "standing" to challenge ordinance No. 4381, because they failed to exhaust administrative remedies, finding that no one made an administrative challenge to ordinance No. 4381 on the basis of procedural defects or planning or zoning violations. The trial court rejected plaintiffs' argument that the County's undisputed failure to submit the ordinance for planning commission review rendered the ordinance void ab initio. The court ruled that even if the County were required to submit the matter to the planning commission, the failure to do so did not invalidate the ordinance. Rather, Government Code section 65853 provided that if the planning commission failed to review the matter, it was deemed to have approved the ordinance.
Government Code section 65853 provides: "A zoning ordinance or an amendment to a zoning ordinance, which amended changes any property from one zone to another or imposes any regulation listed in Section 65850 not theretofore imposed or removes or modifies any such regulation theretofore imposed shall be adopted in the manner set forth in Sections 65854 to 65857, inclusive. Any other amendment to a zoning ordinance may be adopted as other ordinances are adopted. [¶] When the legislative body has requested the planning commission to study and report upon a zoning ordinance or amendment which is within the scope of this section and the planning commission fails to act upon such request within a reasonable time, the legislative body may, by written notice, require the planning commission to render its report within 40 days. Upon receipt of the written notice the planning commission, if it has not done so, shall conduct the public hearing as required by Section 54854. Failure to so report to the legislative body within the above time period shall be deemed to be approval of the proposed zoning ordinance or amendment to a zoning ordinance." (Italics added.)
In our view, Government Code section 65853 does not apply, even if the ordinance fell within the scope of the statute, because the planning commission was not asked to review the ordinance.
The trial court stated that even if plaintiffs' claims were not barred by failure to exhaust administrative remedies, their claims failed on the merits.
Failure to Codify Ordinance
Regarding plaintiffs' argument that the County's failure to codify ordinance No. 4381 invalidated the ordinance, the trial court stated plaintiffs cited no authority supporting their position. To the contrary, said the court, case law holds that the omission of a legislative enactment from codified compilation is without legal significance, and the enactment still has force. (In re A.G. (2010) 186 Cal.App.4th 1454, 1461.)
Planning and Zoning Law Violations
The trial court noted plaintiffs did not attack the validity of the general plan and did not contend the general plan violated the law. Instead, they argued the County had failed to follow through with reporting procedures, development, monitoring, or amendments relative to the general plan. The trial court noted the claimed planning and zoning violations were not specific to ordinance No. 4381. They fell into two categories:
1. General plan deficiencies, specifically the County's failure to: (a) submit annual status reports, (b) implement the general plan's call for objective development standards, (c) amend the general plan elements to incorporate air quality strategies, and (d) report on and implement general plan mitigation measures.
2. An ordinance violation in that the County failed to map ARM (Agricultural Resource Management) zones.
As to the first category, the trial court determined the alleged deficiencies did not render ordinance No. 4381 void, because plaintiffs failed to show the violations were relevant to the ordinance. The court stated that the only concern that could arguably be characterized as a criteria violation was the alleged failure to amend the general plan elements to include strategies to improve air quality. (Gov. Code, § 65302.1, subd. (b).) However, plaintiffs must also show relevancy of that alleged failure to ordinance No. 4381, which plaintiffs failed to do. The trial court stated, "Petitioners proceed on the logic that the existence of a deficiency alone nullifies the ordinance. Such a showing is insufficient to nullify Ordinance 4381."
As to the second category, the court noted that Development Title, chapter 9-105, section 9-105.6, imposed on the County the duty to map the ARM zones it adopted, and the County admitted it had not done so. The court stated, "The pertinent question is, 'What is the relevancy of the County's failure to map ARM zones to Ordinance 4381?' Again, no connection is made or argued by [plaintiffs]. Without a showing of relevancy, the mere fact that County failed to map the ARM zones is insufficient to nullify Ordinance 4381."
Fourth Count - One-Year Extensions
The trial court noted plaintiffs sought a writ of administrative mandate (Code Civ. Proc., § 1094.5) on the grounds that they did not have a fair hearing, and that the County, by failing to consider planning and zoning law deficiencies, failed to proceed in the manner required by law. The trial court set forth the following factual findings:
Code of Civil Procedure section 1094.5, subdivision (b), provides: "The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence."
On April 29, 2009, Teichert applied for a one-year extension of its quarry excavation permit, seeking a new expiration date of June 11, 2010. On July 16, 2009, the planning commission held a public hearing, where plaintiffs appeared and argued the general plan was inadequate and invalid, the general plan map was inconsistent, and mitigation measures had not been monitored. The planning commission approved the extension. On July 22, 2009, plaintiffs filed an administrative appeal. The hearing on that appeal was heard on December 8, 2009 (seven days after plaintiffs initiated this lawsuit). Plaintiffs lost the administrative appeal and amended their court pleading accordingly.
In July 2009, CEMEX separately requested a one-year extension of its quarry excavation permit, to expire on February 11, 2011. On September 3, 2009, the planning commission held a public hearing, at which plaintiffs appeared and opposed the extension. The planning commission approved the one-year extension. Plaintiffs filed an administrative appeal, which was heard the same day as the administrative appeal of Teichert's extension, and plaintiffs lost the appeal.
The trial court's order following the bench trial then addressed the issues on the fourth count, as follows:
Fair Hearing
Plaintiffs claimed the administrative hearing was unfair because the County did not provide them with copies of the staff reports and recommendations and complete history of environmental determinations until five days before the hearing, and the County denied their request for a continuance. The trial court noted plaintiffs did not present any facts or argument concerning historical documents. The court noted the documents (staff reports/recommendations and responses to plaintiff's arguments) consisted of only 94 pages total, and five days seemed adequate, considering that Government Code section 65804 requires only that staff reports be made available " 'prior to or at the beginning of' " a public hearing. The trial court added that plaintiff Roger Towers admitted he is experienced with land use documents, and that plaintiffs' lawyer at the administrative hearing specialized in land use planning. As to the denial of the continuance, the trial court observed that plaintiff's letter requesting the continuance had contained a detailed outline of all the grounds they asserted in their administrative appeal and in the lawsuit they filed several days before the administrative appeal hearing. The request for a continuance suggested " 'all parties would benefit from the opportunity to step back and look at these issues carefully' " and surmised the County had not had the opportunity to fully review the lawsuit's allegations. The trial court concluded, "The continuance had nothing to do with [plaintiffs] needing more time to look at the staff reports and recommendations."
Whether County Proceeded According to Law
The trial court ruled plaintiffs' arguments about the fourth count -- challenging the one-year extensions -- reiterated the same defects cited in their challenge to ordinance No. 4381 and failed for the same reasons already stated by the court.
The trial court discussed plaintiffs' arguments that the one-year extensions violated three County ordinances: Development Title, chapter 9-854, section 9-854.2, Development Title, chapter 9-1525, section 9-1525.2, and Development Title, chapter 9-881, section 9-881.3. Plaintiffs had raised the first two points, without success, at the administrative hearing.
Development Title, chapter 9-854, section 9-854.2, allows acceptance of quarry excavation permits in AG and AU zones, provided that: "(1) Areas for excavation are designated 'Resource Conservation' on the County General Plan Map and the [SMGB] has identified the areas as construction aggregate deposits of regional significance; [¶] (2) The portion of the property to be excavated contains substantial deposits of mineral resources, or a portion of a deposit of substantial mineral resources; or [¶] (3) For areas zoned AG, the Farmland Mapping and Monitoring Program's soil classification for that portion of the property to be excavated is neither Prime Farmland, Farmland of Statewide Significance, nor Unique Farmland." (Italics added.) The trial court rejected plaintiffs' argument that Development Title, chapter 9-854, section 9-854.2, required that both subdivisions (1) and (2) must be met.
Development Title, chapter 9-1525, section 9-1525.2, subdivision (c), prohibits "[e]xtractive projects that would have irreversible, deleterious environmental effects that cannot be mitigated." Plaintiffs argued the one-year extensions of the CEMEX and Teichert permits would result in such significant impacts. The trial court noted plaintiffs failed to make any showing on the matter.
Development Title, chapter 9-881, section 9-881.3, provides that applications for permit extensions "shall be reviewed using the review procedure required for the original development application." (Italics added.) The trial court ruled that the procedures were followed and, contrary to plaintiffs' position, nothing in the ordinance required a substantive review of the original project/permit.
Summary of Order Following Bench Trial
The trial court denied plaintiffs' petition for a writ of mandate on ordinance No. 4381 (first count) because plaintiffs lacked standing, having failed to exhaust administrative remedies; the absence of planning commission action did not render the ordinance void ab initio; plaintiffs had not established that the cited deficiencies nullified the ordinance; and lack of codification was without legal consequence.
The trial court denied plaintiffs' writ petition regarding the one-year permit extensions (fourth count) because plaintiffs received a fair administrative hearing; they did not establish that the cited general plan deficiencies invalidated the extensions; they did not establish a violation of the Development Title; and accordingly, they failed to show that the County did not proceed according to law.
After the order on the bench trial, on September 5, 2012, the trial court granted CEMEX's motion for judgment on the pleadings in favor of CEMEX as to the second cause of action for declaratory or injunctive relief. The court stated the motion was "just a formality," given the court's ruling on CEMEX's demurrer.
Summary Adjudication of Issues
The County moved for summary adjudication of issues (Code Civ. Proc., § 437c, subd. (f)(1)) as to the fifth count alleging civil rights violations. The County contended no triable issue of material fact existed for the following reasons:
1. "The crux of [plaintiffs' claims] is that the Towers were entitled to an agricultural general plan designation for their parcels, and were wrongly denied the ability to construct residences on those parcels 'as of right.' Yet, because the Towers failed to pursue their challenge to the County's 2004 determination that their property has a resource conservation designation, requiring discretionary site approval, the propriety of the resource designation is now conclusively established. Consequently, the Towers have not been deprived of any right to build to which they were entitled, and they lack a sufficient 'property' interest to support either of their due process claims [procedural and substantive]."
2. "Even if the Towers could demonstrate a valid property interest, they cannot demonstrate a triable issue of fact as to their procedural due process claim. Under [case law], the Towers had adequate post-deprivation remedies under California law to redress any violation of their procedural rights. Their failure to have fully pursued these remedies—specifically, traditional and administrative mandamus—does not allow them to seek alternative relief under Title 42 of the United States Code, section 1983."
3. "Equally, even if the Towers can prove a sufficient property interest, their substantive due process claim still must fail. There is no triable issue of fact that the Towers' parcels, along with the surrounding quarry properties, are classified and designated under state law as containing significant mineral deposits. There equally is no triable issue of fact as to the County's obligation to conserve and protect these mineral resources through appropriate general plan policies and zoning regulations. That the County required discretionary approvals for the Towers' proposed houses, and that the County denied the Towers' request for such approval, were consistent with both the letter and spirit of state law. As a result, the Towers could not demonstrate at trial that the County lacked a rational basis for the challenged actions and decisions."
4. As to the alleged equal protection claim, "the Towers could not demonstrate at trial that the County has treated them differently from others who are similarly situated. The residences that have been built on properties bearing the same resource designation as the Towers' parcels were built several years ago, prior to the adoption of the current general plan, or are not located near mineral-resource properties. Only one residence near the Towers' parcels, built in 2001, was allowed within the same resource designation, and such approval was clearly granted in error. These facts would not enable the Towers to demonstrate they were treated differently from those similar to them 'in all relevant respects,' as the cases require."
5. "The Towers also cannot demonstrate a triable issue of fact as to the lack of a rational basis for any dissimilar treatment they could prove. As noted, the classification and designation of the Towers' and surrounding properties, coupled with the County's clear obligations under state law to conserve and protect mineral resources, would defeat any facts that could cast the County's actions and decisions in any arbitrary light."
6. "Finally, even if the Court does not grant summary adjudication on any or all of the above grounds, it still should grant judgment in favor of Sullivan. The Towers cannot demonstrate that her conduct violated any constitutional right or that any such right was 'clearly established' at the times alleged. For this reason, Sullivan would have qualified immunity as to any section 1983 violations that could be proven."
Plaintiffs opposed the motion, claiming they have a constitutional right to devote their land to any legitimate use, and the County failed to implement ARM zoning, failed to enforce quarry permit conditions (the original expiration dates), misrepresented general plan land use designations, misrepresented maps and policies, all with the intent to benefit the mining operations and harm plaintiffs. Plaintiffs also argued the court must deny the motion because it failed to dispose of an entire cause of action.
On January 8, 2013, the trial court issued a written order granting summary adjudication in favor of the County on the due process issue, stating, "County has carried its burden of showing that Towers does not have a constitutionally protected property interest in a Site Approval or in the enforcement of conditions and/or ordinances relating to RPIs [real parties in interest] excavation permits. Therefore, Towers cannot establish the required elements for the due process cause of action."
However, the trial court denied the County's motion as to plaintiffs' equal protection claim, stating, "County acknowledges that there may be at least one similarly situated property which was given permission to build a residence. County states, 'At best, [Towers] could show that one party was mistakenly allowed to construct a residence in the OS/RC designation without obtaining a discretionary approval.' [Citation to motion submissions.] Critically, County offers no admissible evidence to establish that the different result was a mistake. Whether it was a mistake or not is a question of fact."
The trial court also granted summary adjudication in favor of defendant Sullivan on all claims alleged in the fifth count. The court stated, "It is undisputed that Sullivan did not have authority to take final action with respect to Towers' applications. [Citation.] Accordingly, Sullivan has made a prima facie showing that she did not violate Towers' right to equal treatment because she did not treat Towers differently; she did not deny the Site Approval application. Towers failed to submit evidence to raise a triable issue on this point. Instead, he makes a cursory legal argument: 'Sullivan cannot evade liability simply by saying she was following orders.' [Citation.] As a result of Sullivan being granted summary adjudication to all claims alleged against her in the Fifth Cause of Action , she is dismissed as a party to this lawsuit."
The Judgment
On March 21, 2013, the trial court entered judgment, stating:
The judgment expressly states it attaches all orders, but the Towerses did not include the attachments in their appellants' appendix, which has the interim orders spread out. The County filled the breach by submitting a respondents' appendix.
"WHEREAS, on May 21, 2011, the Demurrers by Real Parties in Interest [including Teichert and CEMEX], to the Second Cause of Action were sustained without leave to amend. . . .
"WHEREAS, on June 28, 2011, the Demurrer by [the County], to the Third Cause of Action . . . was sustained without leave to amend. . . .
"WHEREAS, on May 18, 2012, a trial was held on the First and Fourth Causes of Action and the Court ordered the Towers' petition for writ of mandate challenging the First Cause of Action be denied. Further, the Court ordered the Towers' petition for writ of mandate challenging the Fourth Cause of Action be denied. . . .
"WHEREAS, on December 20, 2012, the Court granted summary adjudication on the procedural due process and substantive due process causes of action contained in the Fifth Cause of Action. Further, the Court held that Defendant Kerry Sullivan was not liable in the Fifth Cause of Action and dismissed her as a party to this litigation. As of December 20, 2012, the equal protection cause of action was the only remaining portion of the Fifth Cause of Action. . . .
"WHEREAS, on December 31, 2012, the Towers dismissed the Second Cause of Action and the equal protection portion of the Fifth Cause of Action. . . .
"NOW THEREFORE, the Court finds and concludes all other issues pending having been determined by prior order and/or dismissal, judgment is hereby entered as follows:
"1. Judgment is entered in favor of the County on the First, Third, Fourth, and the substantive and due process claims of the Fifth Causes of Action.
"2. Judgment is entered in favor of Defendant Sullivan on the entire Fifth Cause of Action.
"3. The Towers voluntarily dismissed the remaining portions of the Second Cause of Action, and the equal protection portion of the Fifth Cause of Action, leaving no further issue or claim to be tried.
"IT IS SO ORDERED."
DISCUSSION
I. Timeliness of Appeal as to Teichert and CEMEX
CEMEX and Teichert argue the appeal is untimely as to them, because the trial court disposed of all claims involving them (the first, second, and fourth counts) in orders sustaining their demurrers and in the June 29, 2012, order on the bench trial, yet plaintiffs did not file their notice of appeal until April 10, 2013 (a month after the trial court entered its final judgment incorporating all the earlier rulings and orders).
If the June 29, 2012, order triggered the time to appeal as to CEMEX and Teichert, then the appeal would be untimely as to them. (Cal. Rules of Court, rule 8.104 [notice of appeal must be filed within 60 days of notice of entry of appealable order].)
However, we are not persuaded by CEMEX's and Teichert's arguments that they were out of the case as of the time of the June 29, 2012, order on the bench trial. The bench trial was on the first and fourth counts only, the writ petitions seeking to invalidate ordinance No. 4381 and the one-year extensions. However, CEMEX and Teichert both acknowledge on appeal that they were also named in the second count, which sought declaratory and injunctive relief to declare the mining permits and extensions void. Although CEMEX and Teichert had earlier prevailed on demurrers to the second count, the second count remained in place against the County until plaintiffs dismissed it on December 31, 2012. A ruling against the County on the second count might have affected CEMEX and Teichert despite their earlier demurrers because, until the trial court entered a final judgment, it could have reconsidered its earlier rulings and orders. (Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1451 [before issuing judgment, a trial court has inherent authority to reconsider interim orders].)
We recognize that, after the order on the bench trial, the trial court on September 5, 2012, granted CEMEX's motion for judgment on the pleadings in favor of CEMEX as to the second cause of action for declaratory or injunctive relief. The court noted the motion was just a "formality," given the court's ruling on CEMEX's demurrer. However, CEMEX does not argue that this order triggered the time to appeal, nor could CEMEX so argue, because an order granting a motion for judgment on the pleadings that does not terminate the proceedings is interlocutory and therefore is not an appealable order. (Singhania v. Uttarwar (2006) 136 Cal.App.4th 416, 425.)
Accordingly, we reject CEMEX's and Teichert's arguments that plaintiffs' notice of appeal was untimely as to them and address plaintiffs' contentions on appeal.
II. Challenge to OS/RC Designation and Maps
We first conclude that plaintiffs have no basis to challenge the OS/RC designation of their land or the allegedly "phony maps," because plaintiffs have forfeited those matters by failing to provide any legal authority or analysis on appeal to challenge the trial court's conclusion that those claims are barred by the statute of limitations (Code Civ. Proc., § 338, subd. (d)).
Plaintiffs' pleading raised these claims in the third count seeking administrative mandamus to undo the County's denial of plaintiffs' application to redesignate their property from OS/RC to agricultural zoning. In the fifth cause of action, the pleading repeated the designation and map matters among the alleged civil rights violations (42 U.S.C. § 1983).
The trial court eliminated the third count on demurrer because the claim was barred by the three-year statute of limitations, in that the 2009 lawsuit was not filed within three years of the County's 2004 refusal to redesignate plaintiffs' parcels.
Our review of the trial court's ruling on demurrer is de novo. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); Stearn, supra, 170 Cal.App.4th at pp. 439-440.)
On appeal, plaintiffs present no discrete argument challenging the dismissal of the third count on demurrer, on statute of limitations grounds. Instead, plaintiffs' appellate brief mentions their redesignation request and the "phony maps" only in their statement of facts and in their argument about their fifth cause of action for federal civil rights violations. Plaintiffs argue the trial court erred in rejecting the due process claims based on lack of property interest.
However, plaintiffs present no argument, analysis, or authority that the trial court erred in ruling the statute of limitations barred the state law claims, and plaintiffs present no argument, analysis, or authority, that they can revive these barred claims by alleging they violate federal civil rights.
Plaintiffs claim the County should be estopped from asserting the statute of limitations because the County concealed its own fraudulent conduct by withholding documents. Plaintiffs assert that they bear no fault in failing to discover the alleged fraud in a timely manner. However, as we have indicated, the trial court in ruling on the demurrer explained the complaint failed to allege facts sufficient for fraud or intentional misconduct, and plaintiffs on appeal have failed to challenge this determination or show reversible error in the trial court's rejection of plaintiffs' argument that they could not have discovered the facts earlier.
We may disregard points not supported by appropriate analysis and authority. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
Moreover, the bar of the statute of limitations forecloses not only the third count challenging the designation, but also the fifth count alleging federal civil rights violations, because the state statute of limitations governs the length of the limitations period for the federal civil rights action (42 U.S.C. § 1983). (Wallace v. Kato (2007) 549 U.S. 384, 387 [166 L.Ed.2d 973, 980]; Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322-323.)
Accordingly, we disregard plaintiffs' complaints about the OS/RC designation and the maps.
III. Ordinance 4381
We conclude that plaintiffs' challenges to ordinance No. 4381 are barred by their failure to exhaust administrative remedies.
Plaintiffs argue the trial court erred in rejecting their challenge to ordinance No. 4381 in the bench trial. They argue ordinance No. 4381 is invalid because (1) the County failed to codify it; (2) the planning commission did not review it before the Board of Supervisors adopted it; and (3) the County failed to conduct necessary CEQA review. Plaintiffs also argue the trial court incorrectly ruled that plaintiffs lacked standing due to failure to exhaust administrative remedies.
We note standing and exhaustion of administrative remedies are not the same thing. A person may have "standing," i.e., an actual, substantial interest in the subject matter and outcome of the court action, yet a challenge may still be barred due to failure to exhaust administrative remedies. (See City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 208-210.)
On appeal of the trial court's order on the bench trial, we review any issues of statutory construction de novo. (Schaefer's Ambulance Service v. County of San Bernardino (1998) 68 Cal.App.4th 581, 586.) The substantial evidence rule applies to factual issues, with any conflicts resolved in favor of the respondent and all reasonable inferences indulged to uphold the judgment. (Ibid.) We defer to the trial court's factual findings if the evidence is in conflict, even where the evidence is documentary rather than live testimony. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)
A. Exhaustion
The trial court concluded plaintiffs were barred from challenging ordinance No. 4381, pursuant to Government Code section 65009, subdivision (b)(1), which precludes a judicial challenge on issues that were not raised at the administrative level. The court found that no one raised the claimed defects (failure to codify, failure to submit to planning commission review, failure to conduct CEQA review) at the board of supervisors hearing in which ordinance No. 4381 was adopted.
Government Code section 65009, subdivision (b)(1), provides in pertinent part: "In an action or proceeding to attack, review, set aside, void, or annul a finding, determination, or decision of a public agency made pursuant to this title [Title 7, Planning and Land Use, § 65007 et seq.] at a properly noticed public hearing, the issues raised shall be limited to those raised in the public hearing or in written correspondence delivered to the public agency prior to, or at, the public hearing . . . ."
Judicial enforcement of the exhaustion requirement of Government Code section 65009 is not discretionary. Instead, exhaustion of administrative remedies is said to be "a jurisdictional prerequisite to judicial action challenging a planning decision." (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 831.) The purpose of Government Code section 65009 "is to provide certainty for property owners and local governments regarding decisions made pursuant to this division." (Gov. Code, § 65009, subd. (a)(3).) The exhaustion requirement also lightens the burden on the courts by encouraging the development of a complete record before the administrative agency and allowing the agency to exercise its expertise on the issues raised. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1137.) The petitioner has the burden of proving an issue was exhausted. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 624.) Whether a petitioner has exhausted administrative remedies is a question of law and our review of the matter is de novo. (Ibid.)
On appeal, plaintiffs do not claim or demonstrate that they exhausted the administrative remedies. They instead argue the trial court erred because Government Code section 65009 by its own terms applies only when there is a " 'properly noticed public hearing.' " Plaintiffs argue, "Not only was there no Planning Commission hearing, the only notice of the Board [of Supervisors] meeting was a micro-print ad . . . . Planning Commission action would have required personal notice to Towers pursuant to Government Code section 65091, subd. (1) [sic] because it affects the uses of real property (Gov[.] Code[, §] 65854)."
However, plaintiffs fail to show that notice of the hearing was legally inadequate or that personal notice to them was required. The statutes they cite do not help them. Government Code section 65854 provides that notice of hearing shall be given pursuant to Government Code section 65090 (which requires notice be published in at least one newspaper of general circulation) and, if the ordinance affects permitted uses of property, notice shall also be given under Government Code section 65091. Government Code section 65091, subdivision (a)(1), requires that notice be mailed or delivered "to the owner of the subject real property as shown on the latest equalized assessment roll. . . ." (Italics added.) Plaintiffs did not have a mining permit; thus their property was not the "subject" property of ordinance No. 4381, which did nothing more than extend mining permits.
Notice was published in the newspaper. On September 18, 2009, the County published "Notice of Public Hearing Before the San Joaquin County Board of Supervisors," to be held September 29, 2009, regarding "Adoption of Ordinance Extending By Twenty-Four Months the Expiration Date of Certain Use Permits, Site Approvals, and Quarry Excavation Permits." The notice also contained all language required by Government Code section 65009, subdivision (b)(2), which provides, "If a public agency desires the provisions of this subdivision to apply to a matter, it shall include in any public notice issued pursuant to this title a notice substantially stating all of the following: 'If you challenge the (nature of proposed action) in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the (public entity conducting the hearing) at, or prior to, the public hearing.' "
Thus, plaintiffs fail to show any excuse for their failure to exhaust administrative remedies.
B. Claim that Ordinance 4381 is Void Ab Initio
Under the same subheading about exhaustion of administrative remedies, plaintiffs add, "Moreover, Ordinance 4381 was void ab initio. A void ordinance can be given no effect." (Citing Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544.) The court in Lesher reasoned, "A zoning ordinance that conflicts with a general plan is invalid at the time it is passed. [Citations.] The court does not invalidate the ordinance. It does no more than determine the existence of the conflict. It is the preemptive effect of the controlling state statute, the Planning and Zoning Law, which invalidates the ordinance." (Ibid.) However, a challenger cannot come before a court without first exhausting administrative remedies. A claim that an action is void ab initio does not excuse the exhaustion requirement. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 284.)
We conclude plaintiffs' claims regarding ordinance No. 4381 are barred by their failure to exhaust administrative remedies. Although the trial court went on to address the merits of plaintiffs' claims despite finding failure to exhaust administrative remedies, we need not review the other claims (lack of codification of ordinance No. 4381, lack of planning commission review, and lack of CEQA review) because the failure to exhaust administrative remedies is jurisdictional and dispositive.
IV. Standing - Allegations of Misfeasance and Dereliction of Duty Regarding
General Plan Implementation
Before proceeding to the merits of plaintiffs' other contentions (the one-year extensions and the federal civil rights claim), we first explain that plaintiffs lack standing to litigate their multiple allegations of County misfeasance and subversion in violating statutory requirements for implementation of the general plan. These claims are intertwined throughout plaintiffs' pleading and briefing.
A. Plaintiffs' Contentions
Plaintiffs contend that the County violated its statutory duties regarding implementation of its general plan under land use planning laws and CEQA. In each of their "causes of action," plaintiffs included accusations of County dereliction of duty in failing to: (1) make annual reports on the status of implementation of the general plan (Gov. Code, § 65402, subd. (a); (2) prepare mitigation monitoring plans (MMPs) for the general plan, as required by CEQA (§ 21081.6) and Development Title, chapter 9-1055; and (3) implement mitigation of known significant impacts (particularly air quality) from the build-out of the general plan. Plaintiffs asked the trial court to issue a writ of traditional mandamus, not only ordering the County to comply with the general plan duties, but also forbidding the County from making any land use decisions whatsoever until it shows full compliance with the general plan duties. On appeal, plaintiffs ask us to order the County to "cease and desist" making any land use decisions until it fully complies with all land use planning laws on general plan implementation. In addition, plaintiffs ask us to appoint a special master to monitor compliance and submit bi-monthly reports to us and plaintiffs' counsel.
Plaintiffs' contentions fail because plaintiffs lack standing.
For purposes of this appeal, we will assume arguendo that plaintiffs' complaints about defects in implementation of the general plan are timely, despite the County's argument to the contrary.
B. The Trial Court's Ruling
Plaintiffs claim the trial court never ruled on their allegations about the County's defects in implementing the general plan, and therefore we should make findings and order relief. However, the record shows the trial court did rule; it ruled plaintiffs failed to show they had the beneficial interest required for traditional mandamus relief (Code Civ. Proc., § 1086 [writ of traditional mandate must be issued upon the verified petition of a "party beneficially interested"]), because there was no connection between the General Plan implementation issues and plaintiffs' interests.
In sustaining Teichert's demurrer to the declaratory relief claim (the second count), the court observed that the mining permits, "according to [plaintiffs], are the sum result of the errors of the County in interpreting the General Plan, implementing its policies, etc. In other words, according to [plaintiffs], the validity of the quarry permits depends upon the propriety of the County's actions. The problem- [plaintiffs] argue- is that the RPIs' demurrers presume the propriety of the County's actions. The Second Amended Petition, however, challenges the County's action which, in turn, affects the RPIs' permits. [¶] In previously addressing the RPIs' demurrer[] to the Second Cause of Action [in the first amended petition], the Court sustained the demurrer, with leave to amend, on grounds of uncertainty explaining that 'it is unclear from the allegations of the Second Cause of Action whether the individual permits are being challenged and/or are the focus of the requested declaratory/injunctive relief or whether the permitting process was the focus of the cause of action. Leave to amend was granted in order to allow [plaintiffs] to clarify that point."
Then, in its order following the bench trial, the trial court spoke of plaintiffs' argument that the County had failed to follow through with reporting procedures, development, monitoring, or amendments relative to the general plan. The trial court noted that the claimed planning and zoning law violations were not specific to ordinance No. 4381. They fell into two categories. The first category was general plan deficiencies, e.g., failure to submit annual status reports, implement the general plan's call for objective development standards, amend the general plan elements to incorporate air quality strategies, and to report on and implement general plan mitigation measures. The second category was an ordinance violation in that the County failed to map ARM zones.
As to the first category, the trial court determined the alleged deficiencies did not render ordinance No. 4381 void, because plaintiffs failed to show that those defects were relevant to the ordinance. The only concern that could arguably be characterized as a criteria violation was the alleged failure to amend the general plan elements to include strategies to improve air quality. (Gov. Code, § 65302.1, subd. (b).) However, plaintiffs must also show relevancy of that alleged failure to ordinance No. 4381, which plaintiffs failed to do. The trial court said, "Petitioners proceed on the logic that the existence of a deficiency alone nullifies the ordinance. Such a showing is insufficient to nullify Ordinance 4381."
As to the second category, the court noted that Development Title, chapter 9-105, section 9-105.6, imposed on the County the duty to map the ARM zones it adopted, and the County admitted it had not done so. The court stated, "The pertinent question is, 'What is the relevancy of the County's failure to map ARM zones to Ordinance 4381?' Again, no connection is made or argued by [plaintiff]s. Without a showing of relevancy, the mere fact that County failed to map the ARM zones is insufficient to nullify Ordinance 4381."
Thus, the trial court in essence ruled that plaintiffs lacked standing to complain about the implementation problems, because they failed to show any nexus between those problems and plaintiffs' interests, and accordingly plaintiffs lacked the beneficial interest required for mandamus relief. We next explain the trial court was correct.
C. Analysis
1. Principles of Standing
Plaintiffs lack standing to assert the alleged defects in the County's implementation of the general plan. Lack of standing is a jurisdictional defect that can be raised at any time. (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 912 (Rialto Citizens).)
"As a general rule, a party must be 'beneficially interested' to seek a writ of mandate. [Citation.] 'The requirement that a petitioner be "beneficially interested" has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large. [Citations.] . . . "One who is in fact adversely affected by governmental action should have standing to challenge that action if it is judicially reviewable." [Citation.]' [Citation.] The beneficial interest must be direct and substantial." (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165 (Save the Plastic Bag).)
"Nevertheless, ' "where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the [petitioner] need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced." ' [Citation.] This ' "public right/public duty" exception to the requirement of beneficial interest for a writ of mandate' 'promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right.' [Citations.] [The California Supreme Court] refer[s] to this variety of standing as 'public interest standing.' " (Save the Plastic Bag, supra, 52 Cal.4th at p. 166.) Strict rules of standing have no application where broad and long-term environmental effects are involved. (Id. at p. 170.)
However, no party may proceed with a mandamus petition as a matter of right under the public interest exception. (Save the Plastic Bag, supra, 52 Cal.4th at p. 170, fn. 5.) " 'Judicial recognition of citizen standing is an exception to, rather than repudiation of, the usual requirement of a beneficial interest.' " (Ibid.) It would be inappropriate for a party to attempt to use CEQA to impose regulatory burdens on a business competitor, "with no demonstrable concern for protecting the environment." (Id. at p. 170.) Similarly "where the claim of 'citizen' or 'public interest' standing is driven by personal objectives rather than 'broader public concerns,' a court may find the litigant to lack such standing." (SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.4th 1043, 1057 (SJJC Aviation Services), citing Save the Plastic Bag, 52 Cal.4th at p. 169.)
Plaintiffs' pleading alleged they live in Stanislaus County but are "beneficially interested in the enforcement of the Planning and Zoning Law and CEQA as citizens of the State of California and as property owners and taxpayers in the County of San Joaquin, and are directly affected by the extension of permits that would otherwise expire for uses on properties located in close proximity to their property that have adverse effects on conversion of prime agricultural land to land of marginal agricultural use, noise, air quality, wildlife habitat for threatened or endangered species, traffic and visual and aesthetic values."
As we shall explain, plaintiffs have neither "special interest" nor "public interest" standing.
2. Special Interest Standing
In their opening brief on appeal, plaintiffs argue they have " 'special interest' " standing because they own three parcels of land "in the immediate vicinity of several gravel quarry operations."
The County's brief responds that the proximity of plaintiffs' vacant land to the mining operations may give plaintiffs standing to challenge ordinance No. 4381 and the one-year extensions, but plaintiffs show no distinct injury to confer special interest standing to challenge countywide general plan implementation, mitigation, and reporting requirements. The County adds that, although plaintiffs have an economic interest in their vacant land, they offer no explanation as to how the alleged general plan violations (as opposed to the OS/RC designation) inhibit their ability to develop their property.
Plaintiffs argue in their reply brief that they have a beneficial interest because "San Joaquin County has failed to complete the predicate requirements which enable it to make land use decisions. [Citation to opening brief.] Until such time as San Joaquin County completes these predicate decision making requirements, Towers' vacant 19 acres is in no better position for development than TEICHERT or CEMEX - no land use projects can be legitimately approved in San Joaquin County."
Beneficially interested parties are those that are " 'in fact adversely affected by governmental action" ' " (Save the Plastic Bag, supra, 52 Cal.4th at p. 165, italics added), and as we have noted, our high court has held that the beneficial interest must be "direct and substantial." (Ibid.; see also Cuenca v. Cohen (2017) 8 Cal.App.5th 200, 219; Rialto Citizens, supra, 208 Cal.App.4th at p. 913.) An alleged right that is abstract, inchoate, or lacking in substantiality does not warrant mandamus. (8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 75, p. 956.) Here, the asserted beneficial interest plaintiffs identify is neither direct nor substantial; rather the asserted interest is at best indirect and insubstantial.
Moreover, plaintiffs cite no supporting authority that the general plan violations preclude the County from making any land use decisions as plaintiffs assert. Generally, defects regarding a general plan do not invalidate all county land use decisions. Such defects may render a specific project approval invalid, due to "the hierarchical relationship of the land use laws," because local approval of a specific land use is "struck from the mold" of the planning and zoning laws, which must comply with general plans, which must conform to state law requirements. (See Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1184 (Neighborhood Action); Guardians of Turlock's Integrity v. Turlock City Council (1983) 149 Cal.App.3d 584, 598 [project approval was not consistent with general plan because general plan was invalid for lack of a noise element].)
But to prevail in such cases, the plaintiff must show a nexus between the project approval and the general plan defect. (Avenida San Juan Partnership v. City of San Clemente (2011) 201 Cal.App.4th 1256, 1274-1278; Neighborhood Action, supra, 156 Cal.App.3d at pp. 1184-1188 [issuance of a use permit is beyond the authority of the issuing agency if the general plan is deficient in its treatment of mandatory elements which are involved in the uses sought by the permit].
Here, plaintiffs fail to show any nexus. What arguably affects plaintiffs are the mining permit extensions. But the extensions did nothing more than extend the expiration date of the permits that were previously approved. And those initial approvals are outside the scope of this lawsuit due to the statute of limitations.
The only possible nexus concerns air quality. The trial court stated in its order on the bench trial, that the only potentially viable concern of plaintiffs was the County's alleged failure to amend the general plan elements to include strategies to improve air quality. (Gov. Code, § 65302.1.) However, said the court, plaintiffs must show relevancy of that alleged failure to ordinance No. 4381, which plaintiffs failed to do. The trial court said, "Petitioners proceed on the logic that the existence of a deficiency alone nullifies the ordinance. Such a showing is insufficient to nullify Ordinance 4381."
Government Code section 65302.1, as enacted in 2003 (Stats. 2003, ch. 472, § 1), provides in part: "(a) The Legislature finds and declares all of the following: [¶] (1) The San Joaquin Valley has a serious air pollution problem that will take the cooperation of land use and transportation planning agencies, transit operators, the development community, the San Joaquin Valley Air Pollution District [APD or the District] and the public to solve. The solution to the problem requires changes in the way we have traditionally built our communities and constructed the transportation systems. It involves a fundamental shift in priorities from emphasis on mobility for the occupants of private automobiles to a multimodal system that more efficiently uses scarce resources. It requires a change in attitude from the public to support development patterns and transportation systems different from the status quo. [¶] . . . [¶] (b) The legislative body of each city and county within the jurisdictional boundaries of the district shall amend the appropriate elements of its general plan, which may include, but are not limited to, the required elements dealing with land use, circulation, housing, conservation, and open space, to include data and analysis, goals, policies, and objectives, and feasible implementation strategies to improve air quality. . . ."
We agree with the trial court. Plaintiffs fail to show any relevant nexus between the alleged general plan violations to the one-year or two-year extensions of mining permits. Indeed, plaintiffs' reply brief concedes their air quality claims relate to the "approval of the CEMEX and Teichert quarries." As we have indicated, this lawsuit does not involve approval of the quarries, which occurred years earlier, but only the extensions of the permits.
Plaintiffs' reply brief states they "identified some of the failed general plan mitigation as failed general plan implementation. These overlapping failures include implementation of air quality guidelines and development of (scenic corridor) design review guidelines in context of administrative writs in the Fourth Cause of Action. This was done to show prejudicial implications associated with the approval of the CEMEX and TEICHERT quarries." (Italics added.)
Plaintiffs cite Government Code section 65302.1 (see fn. 26, ante), in which the Legislature found and declared that "[t]he San Joaquin Valley has a serious air pollution problem that will take the cooperation of land use and transportation planning agencies . . . ." However, even assuming this statute was adequately pleaded (a point disputed by the parties), plaintiffs fail to show it affords any basis for reversal. As plaintiffs acknowledge in their reply brief, they pleaded air quality in order to obtain a court order that the County desist from issuing any building permits until it amends the general plan to reflect air quality policies. Thus, their complaint is about a technical defect, not any adverse impact to the air which arguably might affect them.
Plaintiffs argue that property owners in the vicinity of mining operations have an interest in the enforcement of MMPs, and this is "not a matter of mere technical compliance," because the purpose of MMPs is to mitigate the significant impacts on the environment that have already been identified. However, plaintiffs' pleading and briefs disclose no indication of substantive impacts of these general plan defects on plaintiffs' property. The impact asserted by plaintiffs is that no land use projects can be legitimately approved by the County for any property, including plaintiffs' parcels, until the County addresses the defects in implementing the general plan. However, the County rejected plaintiffs' application to build houses due to incompatibility with the mining resource conservation under SMARA, and plaintiffs fail to show how correction of defects in implementing the general plan would alter that result. " 'Writ relief is not available if the petitioner gains no direct benefit from the writ's issuance, or suffers no direct detriment from its denial.' " (Chorn v. Workers' Comp. Appeals Bd. (2016) 245 Cal.App.4th 1370, 1382; accord, Rialto Citizens, supra, 208 Cal.App.4th at p. 913.)
We conclude plaintiffs lack "special interest" standing to litigate the alleged defects in the County's implementation of its general plan.
3. Public Interest Standing
Plaintiffs argue they have "public interest" standing because they are California residents and this case concerns "environmental quality including traffic, scenic highways, air quality, and preservation of prime farmland. These are matters of regional, statewide, and national concern." The County argues that a mere allegation of environmental concern is insufficient to show a demonstrable concern for protecting the environment sufficient to confer standing on these plaintiffs, who do not even live in San Joaquin County, and it is apparent the purpose of their lawsuit is to benefit themselves. Plaintiffs assert in their reply brief that the environmental issues are of "regional, statewide, and national concern[]," but that they do not need to rely on public interest standing because they believe they have special interest standing.
Public interest standing may be available "[w]here the question is one of public right and the object of the litigation is to procure the enforcement of a public duty." (California Department of Consumer Affairs v. Superior Court (2016) 245 Cal.App.4th 256, 262, citing Save the Plastic Bag, supra, 52 Cal.4th at p. 166, italics added.) "[P]ublic interest standing is not freely available to any party." (Department of Consumer Affairs, at p. 262.) No party may proceed with a mandamus petition as a matter of right under the public interest exception. (Save the Plastic Bag, at p. 170.) Judicial recognition of citizen standing is an exception to, rather than repudiation of, the usual requirement of a beneficial interest. (Ibid.)
Here, plaintiffs fail to show public interest standing and impliedly concede lack of such standing when they say in their reply brief that they do not need to rely on public interest standing. Moreover, it is clear that plaintiffs commenced this litigation to vindicate their interests related to their land, not the public interest. Indeed, the record demonstrates that in the attempts to settle the earlier litigation and the other alternatives plaintiffs attempted to advance (e.g., rezoning their property), the entire focus related to their land. And as we have noted, a court may find a litigant lacks public interest standing where the claim of such standing is "driven by personal objectives rather than 'broader public concerns.' " (SJJC Aviation Services, supra, 12 Cal.App.4th at p. 1057.) Plaintiffs have not established public interest standing, despite their description of the purposes of this litigation in the pleading.
V. One-Year Extensions
Plaintiffs argue the trial court erred in denying their petition for a writ of administrative mandamus (fourth "cause of action") to vacate the County's grant of one-year extensions of the mining permits of Teichert and CEMEX. We conclude plaintiffs fail to show grounds for reversal.
Under this heading, plaintiffs also claim the one-year extensions are invalidated by the County's dereliction of statutory duties for implementing the general plan. As we have explained, plaintiffs failed to establish standing as to such claims.
The inquiry in administrative mandamus is "whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).) "Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., § 1094.5, subd. (c); Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144.)
On appeal, our task is the same as that of the trial court. (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 946-947.) We review the agency's actions to determine whether the agency complied with procedures required by law. (Id. at p. 946.) We generally do not substitute our judgment for that of the people and their local representatives, but we must scrupulously enforce all legislatively mandated CEQA requirements. (Id. at pp. 946-947.)
A. CEQA
Plaintiffs argue the one-year extensions were " 'projects' " under CEQA, and the County failed to comply with CEQA requirements. We disagree, because the one-year extensions were not subject to CEQA.
The trial court decided the CEQA matter in the course of ruling on the demurrers of Teichert and CEMEX. This ruling ultimately inured to the benefit of the County as well. Our standard of review on this legal question is de novo. (Blank, supra, 39 Cal.3d at p. 318; Stearn, supra, 170 Cal.App.4th at pp. 439-440.)
Whether a particular activity constitutes a " 'project' " within the meaning of CEQA is a question of law for determination by the court. (Fullerton Jt. Union H.S. Dist. v. State Board of Education (1982) 32 Cal.3d 779, 795.) " 'Generally speaking the question on judicial review of an agency's decision under CEQA is whether the agency abused its discretion. Abuse of discretion in this context means the agency failed to proceed as required by law or there was no substantial evidence to support its decision. Thus in reviewing the adequacy of an EIR the trial court does not determine whether the agency's final determinations were correct but only whether the agency arrived at them in accordance with the law and on the basis of substantial evidence. On appeal we independently review the administrative record under the same standard of review which governs the trial court.' " (Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041, 1050 (Moss).) The threshold question of whether something is a new project is a question of law for the court (unless the answer turns on a factual dispute). (Id. at p. 1051.)
Here, it is undisputed that the one-year extensions did nothing more than extend the expiration date of the mining permits. The extensions did not expand the scope of allowable activity. The permits were subject to CEQA consideration when they were first approved. The extensions changed nothing except the expiration date.
"All local agencies shall prepare, or cause to be prepared . . . and certify the completion of, an environmental impact report on any project that they intend to carry out or approve which may have a significant effect on the environment. . . ." (§ 21151, subd. (a).)
" 'Project' " is defined in section 21065 to include "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [¶] (a) An activity directly undertaken by any public agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies."
" 'Project means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following: [¶] (1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plan or elements thereof pursuant to Government Code Sections 65100-65700. [¶] (2) An activity undertaken by a person which is supported in whole or in part through public agency contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (3) An activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. [¶] . . . [¶] (c) The term 'project' refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term 'project' does not mean each separate governmental approval. . . ." (Cal. Code Regs., tit. 14, § 15378.)
"Under CEQA, ' " 'Project' is given a broad interpretation . . . to maximize protection of the environment." ' " (Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156, 1170 (Center for Sierra Nevada Conservation).)
On the question of whether the permit extensions are projects, we find guidance in Moss, supra, 162 Cal.App.4th 1041. There, a subdivision project that was initially approved with a mitigated negative declaration, but because of protracted litigation, its tentative map expired. (Id. at p. 1045.) When Moss filed a new application, the county determined that an EIR was required even though it was undisputed that the proposed subdivision project did not change in any substantial way. (Id. at pp. 1047, 1052.) On appeal, the court held that a resubmitted application for a subdivision, after expiration of the approved tentative map, did not constitute a new project for CEQA purposes (though substantial evidence of significant environmental effects not previously considered supported the need for supplemental EIR). (Id. at pp. 1049, 1054.) The court reasoned that, "[n]othing significant about the activity to be undertaken on the land has changed in any way; all that has changed is that the County's previous approval of a map expired." (Id. at p. 1056.) The court further observed that "[e]xpiration of the tentative map was an abstract occurrence that had no effect on the project's environmental impacts. Rather, it was the expiration of a discretionary approval by a governmental agency, and the Guidelines make it clear that a CEQA project is not to be defined by each of the discretionary approvals that may be required from government agencies." (Ibid.)
The Moss court reviewed several decisions, including Fund for Environmental Defense v. County of Orange (1988) 204 Cal.App.3d 1538, where the county approved a use permit for a project with a certified EIR. The use permit expired five years later. The developer then applied for a new use permit. The county approved it without requiring a new EIR, instead relying on the previous EIR and an addendum. (Id. at p. 1543.) No one suggested the expiration of the use permit transformed the proposed development into a new project for CEQA purposes. Rather, the issue on appeal was whether changes in the project were so substantial as to require a supplemental EIR. As the Fund court observed, "To require preparation of a subsequent or supplemental EIR, the change in the project or the circumstances surrounding it must not only be substantial, it must require major revisions of the EIR." (Id. at p. 1552.) Based on this test, the Fund court held substantial evidence supported the trial court's determination that the EIR for the expired permit could be used as basis to issue the permit five years later. (Id. at p. 1543, 1552.)
Similarly, in Security Environmental Systems, Inc. v. South Coast Air Quality Management Dist. (1991) 229 Cal.App.3d 110, an air quality management agency approved a negative declaration and issued several conditional permits for construction of a hazardous waste incinerator. When the project's proponent requested an extension of the permits, which were set to expire, the agency demanded preparation of an EIR. (Id. at pp. 117-119.) The Court of Appeal held the agency could not now require an EIR, having previously approved a negative declaration for the project, unless significant new information justified further CEQA review. (Id. at pp. 121-124.)
Here, as in Moss, nothing significant about the activity to be undertaken on the land has changed in any way; all that has changed was the expiration date for the permits, an abstract occurrence that had no effect on the project's environmental impacts previously considered. Accordingly, the Moss reasoning applies here.
Plaintiffs cite Center for Sierra Nevada Conservation, supra, 202 Cal.App.4th at pages 1169-1170, for the proposition that time extensions are " 'projects' " under CEQA. However, plaintiffs offer no analysis to show how that case supports their position in this case. In our view, that case is inapposite. In Center for Sierra Nevada Conservation, this court held the county had to prepare a tiered EIR for a woodland management plan because, although an earlier program EIR anticipated development of the woodland management plan, the EIR did not provide the county with any guidance in making the discretionary choices that served as the basis for the plan, e.g., setting the fee rate, how the acreage should be measured, and how off-site woodland losses would be mitigated by fees. (Id. at pp. 1175-1181.)
Here, the mining permits were CEQA projects and were subjected to previous CEQA review, and this lawsuit does not involve any timely challenge to the original issuance of those permits. This case involves only the extensions, which did not expand the scope of activity but merely extended the expiration date of the permits by a year.
CEQA does not apply to the extensions, and we therefore need not address plaintiff's other CEQA arguments.
B. Claims that Extensions Violated Development Title
Plaintiffs argue the one-year extensions violated provisions of the County's zoning code (Development Title). We conclude plaintiffs' arguments are unsupported by analysis or authority, and so plaintiffs fail to meet their burden to show grounds for reversal. (Independent Roofing Contractors v. California Apprenticeship Council (2003) 114 Cal.App.4th 1330, 1339; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
1. Development Title, Chapter 9-854, Section 9-854.5
Plaintiffs argue that Development Title, chapter 9-854, section 9-854.5, sets forth three mandatory findings prior to approving a quarry application. However, as we have said, this case does not involve approval of the quarry applications, but only approval of the one-year extensions. Plaintiffs cite Development Title section 9-881.3, which states in part, "Time Extension Applications shall be reviewed using the review procedure required for the original development applications [subject to exceptions]." However, the review procedures (Development Title, ch. 9-854, § 9-854.4) address the public hearing procedure, not the findings (Development Title, ch. 9-854, § 9-854.5).
Development Title, chapter 9-854, section 9-854.5, states: "Prior to approving an application for a Quarry Excavation Permit, the Review Authority shall find that all of the following are true: [¶] (a) The proposal is for the removal of regionally significant or scarce deposits of mineral resources and not for the removal of prime farmland; [¶] (b) The proposed reclamation of the property upon completion of the excavation will leave the property in a condition which will allow its reuse; and [¶] (c) Issuance of the permit shall not be significantly detrimental to the public health, safety, or welfare, or be injurious to the property or improvements in the vicinity." (Italics added.)
Plaintiffs claim that findings made in 2007 and 2008 for the quarry applications were wrong and/or based on misrepresentations. However, the County's original decision on the quarry applications are outside the scope of this litigation. Although the administrative record for the one-year extensions sets forth the original findings from the County, plaintiffs cite no authority that this revives barred claims.
2. Development Title, Chapter 9-1525, Section 9-1525.2
Plaintiffs next contend that Development Title, chapter 9-1525, section 9-1525.2, subdivision (c), "requires no explanation." Plaintiffs claim the findings for the 2007 Teichert approval show significant environmental impacts that cannot be mitigated. However, the 2007 approval is beyond the scope of this lawsuit, and it is plaintiffs' burden as appellants to explain their contentions.
Development Title, chapter 9-1525, section 9-1525.2, subdivision (c), states that, for extractive projects in areas of significant sand and gravel deposits, "The following projects shall not be permitted. [¶] . . . [¶] (2) Extractive projects that would have irreversible, deleterious environmental effects that cannot be mitigated."
3. Development Title, Chapter 9-854, Section 9-854.2
Plaintiffs next contend that Development Title, chapter 9-854, section 9-854.2, precludes acceptance of applications. Plaintiffs do not set forth the terms of that zoning ordinance. Instead, they simply assert that it does not allow acceptance of quarry excavation applications in areas zoned ARM, and that Teichert's and CEMEX's properties should be zoned ARM, even though it has never been mapped or implemented. Again, this case does not involve approval of the quarry permits but only approval of the extensions.
C. Fair Hearing
Plaintiffs next contend there was no fair hearing on the one-year extensions, because (1) county staff refused to provide plaintiffs with the Tracy East Area General Plan map three days before the planning commission hearing, (2) the board of supervisors denied their request for a continuance, and (3) the board did not consider plaintiffs' evidence but simply submitted it to the clerk for the record. We see no basis for reversal.
1. Provision of the Map
Government Code section 65804, subdivision (c), provides: "When a planning staff report exists, the report shall be made public prior to or at the beginning of the hearing and shall be a matter of public record." (Italics added.) Plaintiffs cite no authority that they were entitled to have the county staff give them the map three days before the hearing, nor do plaintiffs contend they were unable to present their case at the hearing.
2. Request for Continuance
Plaintiffs assert they did not receive copies of the board's packets (consisting of 94 pages) until December 3, 2009—several days before the December 9, 2009, hearing. On December 7th, plaintiffs requested a continuance due to the volume and complexity of the documents. Plaintiffs cite two criminal cases for the proposition that a denial of a continuance may violate due process. (People v. Courts (1985) 37 Cal.3d 784 [due process violated when the trial court refused to grant a criminal defendant a continuance to permit him to be represented by an attorney he retained approximately one week before trial]; People v. De Rosans (1994) 27 Cal.App.4th 611, 620-622 [due process not violated when the trial court denied criminal defendant a continuance to allow him time to comply with the statutory procedures for making a fair cross-section challenge to the jury panel after voir dire had begun because the case law and statute contemplate a pretrial challenge to the master list or the venire].) Plaintiffs cite no authority that these criminal cases apply in this context, nor do plaintiffs explain how denial of a continuance violated due process in this case. In the civil administrative law context, continuances must be granted sparingly and only on a prior and adequate showing of good cause. (Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 342-343.) Here, plaintiffs did not meet this standard.
3. Purported Failure to Consider Evidence
As to plaintiffs' third argument that the Board did not consider their evidence, plaintiffs fail to show that the Board did not consider their evidence. At the hearing, plaintiffs submitted documents which they asserted were "additional background documents" supporting their oral presentation. Plaintiffs do not contend or demonstrate that they submitted any evidence on any new points beyond those which were obviously already familiar to everyone, given the protracted history behind this case.
We conclude plaintiffs fail to show reversible error with respect to the one-year extensions.
VI. Federal Civil Rights Claim
Plaintiffs contend the trial court erred in granting the County's motion for summary adjudication (Code Civ. Proc., § 437c) as to plaintiffs' federal civil rights claim for due process violations (42 U.S.C. § 1983). We disagree.
A. Standard of Review for Summary Adjudication
"A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc., § 437c, subd. (f)(1).)
On appeal, we review the grant of summary adjudication de novo; we must strictly construe the moving papers in the light most favorable to the opponent and liberally construe the opposing papers. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717.) We consider only those facts presented to the trial court. (Havstad v. Fidelity National Title Ins. Co. (1997) 58 Cal.App.4th 654, 661.)
B. Procedural Contention for Summary Adjudication
Plaintiffs argue summary adjudication can be granted only if it disposes of the entire cause of action which, in their view, did not happen in this case. "[A] cause of action for purposes of a summary adjudication motion 'means " 'a group of related paragraphs in the complaint reflecting a separate theory of liability.' " ' " (Silva v. See's Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 257; accord, Garrett v. Howmedica Osteoonics Corp. (2013) 214 Cal.App.4th 173, 185, fn. 7, citing Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855 (Lilienthal) ["a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action"]; Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1137 ["summary adjudication of 'a cause of action' removes from the case 'a separate theory of liability' "]; Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96; see also Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017) § 10:39.) Here, the due process claims represented a separate theory of liability and were subject to summary adjudication.
Plaintiffs cite Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1094, footnote 2, without explaining why they are citing it. In Bagley, the court addressed the issue of successive summary judgment/summary adjudication motions based on the same law and facts and held that the trial court erred in granting the second of two such motions because there were no newly discovered facts or circumstances or a change in the law. (Id. at pp. 1093, 1096.) The footnote upon which plaintiffs rely in which the Bagley court disagreed with Lilienthal, supra, 12 Cal.App.4th 1848, is dicta and had nothing to do with the holding in the case. Moreover, plaintiffs fail to show any connection between the footnote in Bagley and this case.
There was no procedural bar to granting summary adjudication as to plaintiffs' due process claims.
C. Due Process Claims
" 'A plaintiff seeking recovery under section 1983 must plead more than constitutional "buzzwords" ' " and must show the defendant's acts " 'deprived [the plaintiff] of a right, privilege or immunity secured by the federal Constitution or federal laws.' " (Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 267-268.) To prove a due process cause of action under section 1983, a party must, as a threshold matter, show " ' " a liberty or property interest within the protection of the Fourteenth Amendment. [Citation.] A property interest is defined as 'a legitimate claim of entitlement to [a benefit].' [Citation.] Thus, 'to have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it.' " ' " (Id. at p. 268.)
Plaintiffs rehash all of their foregoing arguments under the guise of deprivation of a legitimate claim of entitlement. However, we have explained that none of plaintiffs' arguments have merit. Accordingly, none can serve as a legitimate claim of entitlement to support a due process claim.
We conclude plaintiffs fail to show grounds for reversal as to their federal civil rights claim.
VII. Declaratory/Injunctive Relief
Our rejection of plaintiffs' foregoing arguments also leaves them unable to show grounds for reversal of their claim for declaratory or injunctive relief, in which they sought to declare the mining permits and extensions void and to require the County to comply with laws for implementing the general plan.
DISPOSITION
The judgment is affirmed. The County, the Teichert parties, and the CEMEX parties shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
MURRAY, J. We concur: BLEASE, Acting P. J. DUARTE, J.