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Friends Fawnskin v. Cnty. of San Bernardino

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 13, 2020
E070682 (Cal. Ct. App. Feb. 13, 2020)

Opinion

E070682

02-13-2020

FRIENDS OF FAWNSKIN, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent; MARINA POINT DEVELOPMENT ASSOCIATES et al., Real Parties in Interest.

Law Office of Babak Naficy, Babak Naficy and Jamie Erskine for Plaintiff and Appellant. Michelle D. Blakemore, County Counsel, Bart W. Brizzee, Deputy County Counsel for Defendant and Respondent. David A. Kay; Artiano Shinoff and Paul V. Carelli for Real Parties in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1409159) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Reversed. Law Office of Babak Naficy, Babak Naficy and Jamie Erskine for Plaintiff and Appellant. Michelle D. Blakemore, County Counsel, Bart W. Brizzee, Deputy County Counsel for Defendant and Respondent. David A. Kay; Artiano Shinoff and Paul V. Carelli for Real Parties in Interest.

This opinion constitutes this court's third time addressing this matter. (Friends of Fawnskin v. Cty. of San Bernardino (Friends1) (June 2, 2017, E065474) [nonpub. opn.] ; Friends of Fawnskin v. County of San Bernardino (June 7, 2019, E067447) [nonpub. opn.] .) The case concerns the construction of a condominium project along Big Bear Lake (the project). The project is to be constructed by real parties in interest Marina Point Development Associates (Developer).

In June 2014, plaintiff and appellant Friends of Fawnskin (Friends) filed a petition for writ of mandate in the trial court. Friends asserted defendant and respondent San Bernardino County (the County) violated the County's Development Code in 2011, 2012, and 2014 by issuing construction and demolition permits for the project because the 1991 planned development approval had expired (San Bernardino County Development Code § 86.06.060). (Friends1, supra, 2017 Cal. App. Unpub. LEXIS 3801, *1-*3.) The trial court concluded Friends's writ petition was time-barred. (Id. at p. *3.) In 2017, this court reversed in part as to the 2014 permits. This court concluded Friends had to bring its petition within 90 days of the issuance of the challenged permits, and therefore, Friends's challenge to the 2014 permits was timely. (Friends of Fawnskin v. Cty. of San Bernardino (Friends2) (June 28, 2017, E065474) 2017 Cal. App. Unpub. LEXIS 4530, *1-2.)

All subsequent code references will be to the San Bernardino County Development Code, unless otherwise indicated.

On remand, the trial court concluded that if Friends were correct about the planned development approval having expired, then the County's approval of Developer's site revision plan renewed the County's approval of the project. Therefore, the trial court denied the writ petition on the theory that if the 1991 development approval expired, then the 2014 demolition permits were properly issued pursuant to the County's approval of Developer's site revision plan. We reverse the order.

FACTUAL AND PROCEDURAL HISTORY

A. PROJECT

The project consists "of an eight (8) lot [s]ubdivision that include[s] 133 condominium units, a marina, and other open space/recreational amenities on 28.2 acres." The project is to be "located along Highway 30 near the town of Fawnskin on the north shore of Big Bear Lake . . . and at the northeast end of Grout Bay . . . . A commercial boat landing permit agreement with the Big Bear Municipal Water District . . . covers a 3.5 acre protected marina and a 600 foot zone of influence extending into Big Bear Lake. The Property was used as an RV park, campground and marina[.]"

On December 9, 1991, the San Bernardino County Board of Supervisors (Board of Supervisors) approved (subject to conditions) a subdivision tract map and a preliminary and final development plan. The Board of Supervisors approved development of the project in six phases. The RV park and campground "closed in 2000 when a Tract map was recorded for the approved redevelopment of the Property."

B. FIRST APPEAL

In June 2014, Friends sought a writ of mandate in the trial court. (Friends1, supra, 2017 Cal. App. Unpub. LEXIS 3801, *1.) In the 2014 case, Friends asserted the 1991 planned development approval for the project expired because Developer went too long without acting on the project. Friends contended the County erred by issuing grading and demolition permits for the project in 2011, 2012, and 2014, because the 1991 approval had expired. (Id. at pp. *2-3.)

Developer opposed Friends's petition asserting Friends had to bring its challenge within 90 days of December 2005, which was the time when the approval allegedly expired, and Friends missed that deadline. (Gov. Code, § 66499.37.) The trial court denied the writ petition citing the 90-day statute of limitations. (Friends1, supra, 2017 Cal. App. Unpub. LEXIS 3801, *3.)

Friends appealed. (Friends1, supra, 2017 Cal. App. Unpub. LEXIS 3801, *3-4.) This court concluded Friends's challenges to the permits needed to be brought within 90 days of the issuance of the permits. Therefore, Friends missed the 90-day deadline for the 2011 and 2012 permits, but it satisfied the 90-day deadline for the permits issued in 2014. In June 2017, this court reversed the trial court's order as to the 2014 permits, concluding the challenge to the 2014 permits was not time-barred by the 90-day statute of limitations set forth in Government Code section 66499.37. (Friends1, supra, 2017 Cal. App. Unpub. LEXIS 4530, *1-2].)

C. RETURN TO THE TRIAL COURT

1. WRIT PETITION

In February 2018, upon returning to the trial court, Friends filed a supplemental petition for writ of mandate in the trial court. In the supplemental petition, Friends asserted the 2014 demolition permits were invalid because the 1991 planned development approval expired prior to 2014. Friends asserted that, in order to keep the planned development approval active, Developer had to "record a map or obtain a new building permit within five years of the initial approval . . . and during every subsequent five-year interval. If a five-year period lapses without the developer obtaining a Building Permit or recording a map, the Planned Development will expire."

2. OPPOSITION

Developer and County opposed Friend's supplemental writ petition. Developer and County asserted, "[A] final subdivision tract map had been recorded on all the legal lots and phases of the Project, and not just on one lot or one phase. That final tract map included posting of bonds that guaranteed the installation of the entire project's public improvements. The County agreed that there was no expiration."

Developer and County asserted, "The Project was also approved to be developed in six (6) phases coinciding with the six (6) numbered lots of subdivision Tract 12217." Developer and County contended, "Under the Subdivision Map Act, a final map approval for a development that is not 'phased' becomes final and cannot expire. The Project received final map approval and was not a phased project, so the approvals for the project cannot expire." Developer and County reasoned that because "the final map was recorded for over all phases of the project," rather than incremental maps for each phase, the County Development Code pertaining to phased developments, cited by Friends, was inapplicable.

Next, Developer and County contended the County interpreted its Development Code as "requir[ing] only that the developer either record a tract map or obtain building permits for phases of the development every five years." Developer asserted the County approved a final map for the project "[b]y December 2000." Developer contended, "The recording of the Final Map indicates the County's determination that the planned development permit had not expired."

Next, Developer and County asserted, "There is no provision in the Subdivision Map Act allowing a [c]ounty to enact provisions which would automatically terminate approvals under a final recorded tract map for failure to meet time deadlines." Developer and County also asserted, "Applications for a planned development shall not constitute an application for a subdivision." Next, Developer and County asserted the writ petition is moot because "the [demolition] work has long ago been done."

3. REPLY

Friends replied to Developer and County's opposition. Friends asserted the mootness argument should be rejected because Developer and County could not raise that argument for the first time on remand. Further, Friends asserted Developer and County failed to provide evidence that the demolition work had occurred.

Friends asserted, "It is undisputed that after recording a final map in 2000, Developer did not record any other maps or obtain Building Permits. Accordingly, the County abused its discretion by approving the 2014 grading permits because [the] underlying Planned Development Permit had expired." Friends asserted, "Developer seems to argue that 'completion of the subdivision process' somehow immunizes the Planned Development Permit and would prevent its expiration in perpetuity. This contention must be rejected because it is based on no authority, or even a coherent argument, and would essentially nullify § 86.060(a)(5)(B) [sic], according to which, the filing of a final map (because only final maps can be recorded) merely restarts the five-year expiration clock."

4. TENTATIVE RULING

The trial court issued a tentative ruling. The trial court explained that Friends's theory was that Developer recorded a final tract map in December 2000 and therefore had until December 2005 to obtain a building permit. The trial court faulted Friends for failing to take into account a federal injunction placed on the project from April 2004 to September 2009. The trial court concluded that the federal injunction tolled the County's five-year expiration clock because Developer could not obtain a building permit during that time period. The trial court concluded the planned development approval did not expire in 2005.

Additionally, the trial court concluded that Friends's argument focused on the portion of the County Development Code pertaining to extending the five-year deadline before the planned development approval expired but failed to address the portion of the County Development Code pertaining to resetting the five-year deadline after the expiration of the planned development approval. The trial court explained that expiration of a planned development approval "does not permanently foreclose a developer from moving forward with a project. Instead, it allows a developer to resume working after that developer has obtained any new planning permit or authorization that is relevant to the project, as well as any County permit—not just a building permit. Therefore, under this provision, it appears a developer may obtain building permits, demolition permits, and other relevant construction permits associated with a project after the original permit or approval has expired."

The trial court wrote, "In the current litigation, [Friends] alleges that on March 18, 2014, [Developer] submitted a 'Site Plan Revision' application to County 'to obtain approval for its substantial changes to the Project.' [Citation.] [Friends] also alleges that in April 2014, it submitted comments to County regarding this application and stated various objections, including that County was required to issue a new Planned Development Permit since the 1991 approval had expired, and due to the substantial changes in the Project, County was required to conduct new or additional CEQA review. [Citation.] Shortly thereafter, the two challenged 2014 demolition permits were issued by County. [Citation.]

"Even if it is assumed that [Friends] is correct in its assertion that the Planned Development Permit expired at some point before the issuance of the 2014 demolition permits due to [Developer's] failure to comply with section 86.06.060(a)(5)(B), the approval of the Site Plan Revision by County seems to be the type of authorization contemplated under section 86.06.060(c). Pursuant to the plain language of this provision, the approval of the Site Plan Revision, in conjunction with the April 2014 demolition permits, allows [Developer] to move forward with work on the Project in compliance with the Development Code. Therefore, under section 86.06.060(c), the issuance of the 2014 demolition permits is contemplated and allowed after the expiration of the Planned Development Permit.

"[Friends] has not met its burden of demonstrating that County's action in issuing the 2014 demolition permits was arbitrary, capricious, or lacking in evidentiary support." The trial court tentatively denied the writ petition.

5. HEARING

The trial court held a hearing on the writ petition. At the beginning of the hearing, Friends said, "I want to begin by noting that the argument that The Court's ruling essentially [is] based on is not one that was advanced by [Developer and County.] And so having read the tentative just minutes ago, it is a little difficult to kind of formulate a coherent argument[.]" The trial court gave the parties 20 minutes before calling the case again.

Friends asserted (1) it was unclear what type of permit was needed to reset the five-year clock after expiration of an approval; (2) there was no evidence that Developer's revised site plan had been approved at the time the County issued the 2014 demolition permits; and (3) the trial court issued a writ ordering the County to set aside its approval of the revised site plan and that matter was pending appeal. Friends asserted, "So there's still no revision. There's still no underlying permit for this project."

Developer asserted, "[T]here doesn't really need to be an authorization other than the demolition permit." However, Developer also argued that the Board of Supervisors approved the revised site plan, and that "the Board of Supervisors determined that the approvals had not expired at that point." Friends asserted that when the County issued the 2014 demolition permits it did so in reliance on the environmental review that took place as part of the planned development approval. The trial court made the tentative ruling its final ruling.

DISCUSSION

Friends contends the 1991 planned development approval expired because Developer went more than five years without obtaining a building permit or recording a map. The trial court assumed this argument was correct. Accordingly, we will also assume this argument is correct.

Friends contends the trial court erred because (1) the 2014 demolition permits were issued before the County approved the site plan revision; and (2) approval of a site plan revision is not the type of approval that can reset the five-year deadline. We address the assertion that the trial court erred because the 2014 demolition permits were issued before the County approved the site plan revision.

Friends petitioned for a writ of mandate pursuant to Code of Civil Procedure section 1085. "Code of Civil Procedure section 1085, providing for writs of mandate, is available to compel public agencies to perform acts required by law. [Citation.] To obtain relief, a petitioner must demonstrate (1) no 'plain, speedy, and adequate' alternative remedy exists [citation]; (2) 'a clear, present, . . . ministerial duty on the part of the respondent'; and (3) a correlative 'clear, present, and beneficial right in the petitioner to the performance of that duty.' [Citations.] A ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exists, without regard to any personal judgment as to the propriety of the act." (People v. Picklesimer (2010) 48 Cal.4th 330, 339-340; see also Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)

"The trial court reviews an administrative action pursuant to Code of Civil Procedure section 1085 to determine whether the agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, contrary to established public policy, unlawful, procedurally unfair, or whether the agency failed to follow the procedure and give the notices the law requires." (Vallejo Police Officers Assn. v. City of Vallejo (2017) 15 Cal.App.5th 601, 611.)

" ' "In reviewing a trial court's judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the trial court's factual findings." ' " (Vallejo Police Officers Assn. v. City of Vallejo, supra, 15 Cal.App.5th at p. 612; see also Cape Concord Homeowners Assn. v. City of Escondido (2017) 7 Cal.App.5th 180, 189.) Therefore, we apply the substantial evidence standard in reviewing the trial court's factual finding that the County approved the revised site plan before the demolition permits were issued.

Section 86.06.060(c) provides, "After the expiration of a planning permit or authorization in compliance with Subsection 86.06.060(a)(1), above, no further work shall be done on the site until a new planning permit or authorization and any required Building Permit or other County permits are first obtained."

The two demolition permits were issued on April 22, 2014. The County's approval of the revised site plan is not part of the administrative record or the appellant's appendix. Therefore, it is unclear on what evidence the trial court based its finding that the revised site plan was approved before April 22, 2014.

In the trial court's tentative ruling, which became its final ruling, it wrote, "[Friends] also alleges that in April 2014, it submitted comments to County regarding [Developer's revised site plan] application and stated various objections, including that County was required to issue a new Planned Development Permit since the 1991 approval had expired, and due to the substantial changes in the Project, County was required to conduct new or additional CEQA review. [Citation.] Shortly thereafter, the two challenged 2014 demolition permits were issued by County." The trial court's recounting of the procedural history fails to provide any information about the County approving Developer's revised site plan. Because we see no evidence in the record reflecting the County approved Developer's revised site plan prior to April 22, 2014, we conclude substantial evidence does not support the trial court's finding.

Friends requests this court take judicial notice of the appellant's appendix from the 2017 appellate case in this matter. (Friends1, supra, 2017 Cal. App. Unpub. LEXIS 3801.) Friends asserts the 2017 appellant's appendix "is relevant to this matter as it incorporates the body of evidence used in the case at bar at the previous court proceedings." Friends fails to explain (1) if, when the trial court issued its 2018 ruling, it relied on evidence set forth in the 2017 appellant's appendix; (2) if the trial court used evidence from the 2017 appellant's appendix, then what items of evidence it used, i.e., all or only part of the 2017 appellant's appendix; and (3) how this court can use judicially noticed documents as evidence (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 ["while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files"]). Because Friends fails to identify precisely which documents are relevant and fails to explain how the documents are relevant to our substantial evidence review of the trial court's 2018 ruling, we deny Friends's request for judicial notice of the 2017 appellant's appendix with the exception of one document: the trial court's November 24, 2014, order granting in part and denying in part petitioners' motion for a preliminary injunction. As to that one document, we grant the request. (Evid. Code, § 452, subd. (d).)
Friends also requests this court take judicial notice of (A) Friends and the Center for Biological Diversity's August 26, 2015, petition for writ of mandate and complaint for declaratory and injunctive relief; and (B) County Development Code section 85.10.090. We grant the request as to the August 26, 2015, petition for writ of mandate. (Evid. Code, § 452, subd. (d).) We deny the request as to County Development Code section 85.10.090 because it appears to be from the current version of the Code. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, fn. 4 [ " 'A request for judicial notice of published material is unnecessary' "].)

On November 24, 2014, the trial court issued an order granting in part and denying in part Friends and the Center for Biological Diversity's motion for preliminary injunction. An attachment to the November 24, 2014, order reads, "[T]here is nothing in the record to show that County has made any discretionary decisions regarding this Revisions Application. . . . [S]ince it appears County has not yet made this determination, nor has it approved the application, Petitioners' claim on this issue is premature and not yet ripe. Therefore, without knowing if County . . . will approve the Project revisions . . . Petitioners cannot demonstrate a reasonable probability of prevailing." In Friends and the Center for Biological Diversity's August 26, 2015, petition for writ of mandate, they wrote, "County Planning Staff approved the Site Plan Revision application on December 30, 2014." We highlight the foregoing two documents because it appears, from the documents presently before this court, that the revised site plan was not approved before April 22, 2014. Therefore, it is probable that, if not for the error, Friends would have received a more favorable ruling. (Code Civ. Proc., § 475.)

Developer and County do not cite evidence providing a date for when the County approved the revised site plan. Instead, Developer and County cite a December 17, 2013, recommendation from the director of the County's Land Use Services Department to the Board of Supervisors. The recommendation was that Developer be given "a twelve (12) month extension of time from December 19, 2013, to December 19, 2014 . . . to complete the road and drainage, water, and sewer improvements."

At the bottom of the recommendation document there is a box titled "Record of Actions of the Board of Supervisors." In large letters beneath the title, it reads, "Deferred/Approved," there is a large stamp from the Board of Supervisors over the section, "Aye" votes, and a signature. It is unclear if the "aye" votes were in favor of a motion approving or deferring the recommendation. Because it is unclear if the Board of Supervisors approved or deferred the recommendation, we find Developer's and County's reliance on this document to be unpersuasive.

Developer and County also cite a January 22, 2014, e-mail concerning a substantial conformance development plan as evidence of a resetting of the five-year clock. In the e-mail, Chris Warrick, who has a County e-mail address, wrote, "The Planning Division has completed its review and it is our opinion that the attached Substantial Conformance Plan is consistent with the approved Development Plan." The e-mail continues, "The 'Condition Compliance Release Form' (attached) lists each County Department or outside agency that must sign-off on the project prior to issuance of building permits. This form must be completed with all required signatures in order to obtain a building permit."

Developer and County provide no argument as to how the e-mail demonstrates "a new planning permit or authorization" (§ 86.06.060(a)(1)) when a building permit could not be issued until the Condition Compliance Release Form was completed. Because (1) Developer and County fail to explain how the e-mail is sufficient evidence of "a new planning permit or authorization," and (2) the e-mail reflects further authorization is needed before a building permit could be issued, we are not persuaded that the e-mail constitutes substantial evidence that Developer obtained "a new planning permit or authorization" (§ 86.06.060(a)(1)) before April 22, 2014.

Developer and County assert the demolition permits were not issued pursuant to a planned development approval; rather, they were issued pursuant to a final development plan. Developer and County request this court take judicial notice of the final development plan because it was "inadvertently omitted" from the administrative record. The question of whether the 2014 permits were issued pursuant to the final development plan is a question of fact. One or both of the parties would need to develop a record explaining to what, if any, document(s) the County employee who issued the demolition permits was referring when s/he issued the 2014 permits. We do not consider factual issues raised for the first time on appeal when the issues could have been presented in the trial court. (Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1526.) Developer and County do not explain why this factual issue was not raised in the trial court. Because Developer and County do not offer an explanation, we will not consider the issue any further.

Developer requests this court take judicial notice of a final development plan. We deny the request because the document is not materially relevant to the issues in this appeal. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)

Developer and County contend, "Friends has failed to establish that the demolition permits were improperly granted, since they may have been issued in conjunction with subsequent approvals, whether or not the original approvals had expired." One problem with Developer and County's argument is that, in the trial court, Developer and County did not argue the theory that the five-year clock could be reset after it expired, so Friends had no notice that it needed to defeat such an argument until it received the trial court's tentative ruling. As a result, we hesitate to fault Friends for not developing a better record on this issue. (See Edward W. v. Lamkins (2002) 99 Cal.App.4th 516, 538 [notice is a fundamental aspect of due process].)

Another problem with Developer and County's argument is that Developer and County do not state that the demolition permits were issued in conjunction with identifiable approvals. Instead, Developer and County contend the demolition permits may have been issued in conjunction with unidentified approvals. In sum, because (1) Friends was surprised by the "resetting the clock" theory; and (2) Developer and County are relying on the possibility of unidentified approvals, we find Developer and County's contention to be unpersuasive.

Developer and County contend the trial court did not err because Friends failed to account for tolling, due to the federal injunction, when calculating the expiration date of the planned development approval. Developer and County did not argue tolling in their trial court opposition. The tolling theory was set forth by the trial court in its tentative ruling. Because Developer and County did not present the tolling theory in their trial court opposition, we cannot fault Friends for failing to respond to it in the trial court. (See Edward W. v. Lamkins, supra, 99 Cal.App.4th at p. 538 [notice is a fundamental aspect of due process].) On appeal, Friends asserts that if the five-year clock were tolled due to the federal injunction then the planned development approval expired in April 2011, which would have been prior to April 2014. Accordingly, we are not persuaded by Developer and County's assertion that Friends failed to account for tolling.

Developer and County contend Friends is relying on a portion of the County's Development Code that pertains to planned development permits, but planned developments permits did not exist in 1991 and 2000, so the project is exempt from the portion of the County's 2007 Development Code pertaining to planned development permits. Developer and County assert this is a pure issue of law that this court can address despite the trial court presumably having relied on a post-2000 version of the Development Code.

When construing codified language we " ' "ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law." ' [Citation.] ' " 'We take a three-step sequential approach to interpreting [codified] language. [Citation.] First, we will examine the language at issue, giving "the words of the [code section] their ordinary, everyday meaning." [Citations.] If we conclude that the statutory meaning is free of doubt, uncertainty, or ambiguity, the language of the statute controls, and our task is completed. [Citations.] Second, if we determine that the language is unclear, we will attempt to determine the [legislative body's] intent as an aid to statutory construction. [Citation.] In attempting to ascertain that intent, "we must examine the legislative history and statutory context of the act under scrutiny. [Citation.]" [Citation.] Third, if the clear meaning of the statutory language is not evident after attempting to ascertain its ordinary meaning or its meaning as derived from legislative intent, we will "apply reason, practicality, and common sense to the language at hand.' " ' " (City of San Diego v. Haas (2012) 207 Cal.App.4th 472, 490-491.)

Section 85.10, addressing planned development permits, was added to the County Development Code in 2007, along with the rest of the Development Code, i.e., the entire Development Code was adopted in 2007. (County of San Bernardino 2007 Development Code, Cover Page.) In reading Section 85.10 we see no language indicating whether the Board of Supervisors intended for section 85.10 to apply retroactively or only prospectively.

Section 81.01.090 addresses how "this Development Code will apply to a development project that is in progress at the time the General Plan or the Development Code goes into effect." Section 81.01.090 provides, "The expiration date of land use permits, other than land use zoning district changes or General Plan amendments, which were approved on or before April 12, 2007, may be extended under Section 86.06.060 (Time Limits and Extensions) for the period which would otherwise be allowed under that section, but in no event beyond April 12, 2007, without satisfying the requirement that extensions be found consistent with the General Plan as is required under Section 86.06.060 (Time Limits and Extensions). Applications that are found to be consistent with the then applicable General Plan may be granted the maximum extension allowed under this Development Code without regard to the above limitations."

The first sentence—"The expiration date of land use permits . . . may be extended under Section 86.06.060 . . . for the period which would otherwise be allowed under that section . . ."—indicates that the Board of Supervisors intended for projects-in-progress to be subject to the new expiration timelines set forth in Section 86.06.060. That intention is indicated by the language "may be extended under Section 86.06.060," which reflects section 86.06.060 is to be applied to projects-in-progress.

Developer's 1991 application is titled "Land Use Application." Developer's "Preliminary/Final Development Plan" reads, "Through the application of the FDP format and land use planning techniques, the project site can be more effectively master-planned into a cohesive resort entity. The FDP assumes a comprehensive approach toward dealing with land use relationships." Thus, Developer has described the project as a land use project. Because the project is a land use project, we are not persuaded that the project is exempt from section 86.06.060.

Nevertheless, we will examine the document that Developer and County have presented as the 1989 County Development Code. In the document Developer and County provided, section 83.010350(b) provides, "Planned Development: Notwithstanding the above provisions of this section, a conditionally approved Planned Development for a phased project shall be subject to a time limitation not to exceed that specified by the condition of approval for the Development Plan approval. The applicant, however, shall either record a tract map or obtain building permits for at least one (1) phase of the project within five (5) years of the development plan conditional approval and, as applicable, within each succeeding five (5) year period. Each five-year period shall begin with the last County approved action that was accomplished (i.e., record a tract map, obtain a building permit)."

Developer and County request this court take judicial notice of the County's 1989 Development Code. The cover page of the document that Developer and County have provided as the 1989 Development Code reads, "Development Code [¶] (Title 8 of the San Bernardino County Code) [¶] Includes Changes Dated September 21, 2006." We will grant the request for judicial notice, relying on the document that Developer and County provided. (Evid. Code, § 452, subd. (b).) --------

The conditions of approval for the project included a 36-month deadline. Both the 1989 Development Code and the 2007 Development Code include five-year deadlines. Accordingly, it appears that the result would be the same under either the 1989 Development Code or the 2007 Development Code in terms of the five-year expiration period for planned development approvals. Therefore, we are not persuaded by Developer and County's reliance on the 1989 Development Code.

Developer and County assert the County's interpretation of its own ordinance is entitled to deference and the County has rejected "the 'expiration' theory." We defer to an agency's interpretation of its own regulation when the regulatory language is ambiguous. (Reilly v. Marin Housing Authority (2018) 23 Cal.App.5th 425, 436.) Developer and County have not demonstrated that the language of section 86.06.060 is ambiguous. Therefore, there is no need to defer to the County's interpretation of the code section.

Next, Developer and County assert the final tract map and composite development plan superseded the planned development approval. Developer and County assert the planned development approval could not expire because it had been superseded. The only law cited by Developer and County to support this argument is two sections of the 1989 Development Code. Developer and County fail to explain why it is the 1989 Development Code that applies to this issue.

Nevertheless, for the sake of addressing Developer and County's contention, we will examine the 1989 Development Code. The first section cited by Developer and County is section 83.040505(a), which concerns the form and content of composite development plans. The section provides, "Standards and Preparation. A reproduction shall be made on linen or mylar of the map sheets of the Final or Parcel Map which shall conform to the following provisions and adopted County standards." Developer and County fail to explain how this section of the 1989 Development Code supports the assertion that once a final map is filed the expiration rules pertaining to a planned development approval are no longer applicable.

The second section cited by Developer and County is section 83.040501, which sets forth the filing criteria for composite development plans. The section provides, "(a) The Planning Agency may require the filing of a Composite Development Plan at the time a Final or Parcel Map is accepted for recordation. These maps will reflect the information required by the Planning Agency and shall be filed with the Office of Building and Safety concurrent with the recordation of the Final or Parcel Map. [¶] (b) Wherever a Composite Development Plan is required, these plans shall be submitted prior to recordation of the Final or Parcel Map." Developer and County fail to explain how the filing requirements for a composite development plan support the assertion that after a final map is filed, the expiration rules pertaining to a planned development approval are no longer applicable. Because Developer and County do not provide meaningful legal analysis to support their assertion, we conclude the assertion has been forfeited. (Central Valley Gas Storage, LLC v. Southam (2017) 11 Cal.App.5th 686, 694-695.)

Developer and County contend, "Once a final tract map is recorded, the expiration conditions imposed by Government Code section 66452.6 are no longer applicable to the project." Government Code section 66452.6, subdivision (a)(1), provides, in relevant part, "An approved or conditionally approved tentative map shall expire 24 months after its approval or conditional approval, or after any additional period of time as may be prescribed by local ordinance, not to exceed an additional 12 months."

Government Code section 66452.6 appears to focus on tentative maps rather than final maps. Developer and County do not provide a meaningful legal analysis explaining why Government Code section 66452.6, which discusses tentative maps, means the planned development approval could not expire. As a result, we conclude the issue has been forfeited. (Central Valley Gas Storage, LLC v. Southam, supra, 11 Cal.App.5th at pp. 694-695.)

Next, Developer and County assert that, in this Court's 2017 opinion in this matter, we remanded the case to the trial court to make factual findings concerning a notice issue raised by Developer during oral argument. In the 2017 opinion, this court wrote, "At oral argument in this court, Developer asserted the statute of limitations for all of Friends's permit challenges began to run in 2011, when the first permit was issued, thus placing Friends on notice that the 1991 project approval had not expired. Developer asserted there is evidence reflecting Friends had notice in 2011 that the 1991 project approval had not expired. In particular, Developer referred to a letter that would provide proof of notice in 2011. This court cannot decide the evidentiary issue of whether Friends had notice in 2011. [Citation.] Moreover, the parties did not brief the legal issue of whether notice in 2011 would trigger the statute of limitations so as to bar suits concerning subsequent acts. Accordingly, we will not examine the legal or factual issues related to notice." (Friends2, supra, 2017 Cal. App. Unpub. LEXIS 4530, *2.)

This court expressly wrote, "[W]e will not examine the legal or factual issues related to notice." (Friends2, supra, 2017 Cal. App. Unpub. LEXIS 4530, *2.) That sentence means this court did not examine the issue. Because this court did not examine the issue, we never decided if Developer was correct or incorrect and we never sent the issue back to the trial court. In sum, we are not persuaded that this court directed the trial court to consider Developer's notice argument.

Developer and County assert, "Ample evidence in the judicially noticed portions of Friends of Big Bear Valley v. County of San Bernardino, Case CIVDS1512175 supports a finding that Friends was well aware that the County continued to regard the approvals of the Project as valid after the 'expiration' in 2005." During the remand proceedings in the trial court, Developer asserted that this court directed the trial court "to establish a record" on Developer's notice argument. The trial court responded, "Well, I don't know that that's what the Court of Appeals was asking." The trial court did not make a factual finding concerning Developer's notice argument. Because the trial court did not make a finding, there is no evidentiary finding for us to review. (See Cape Concord Homeowners Assn. v. City of Escondido, supra, 7 Cal.App.5th at p. 189 [factual findings are reviewed for substantial evidence].) Therefore, we do not examine whether judicially noticed documents from "Friends of Big Bear Valley v. County of San Bernardino, Case CIVDS1512175" support Developer and County's assertion that Friends had notice that the County was treating the project as active after 2005.

DISPOSITION

The order is reversed. Appellant is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J. We concur: McKINSTER

Acting P. J. SLOUGH

J.


Summaries of

Friends Fawnskin v. Cnty. of San Bernardino

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 13, 2020
E070682 (Cal. Ct. App. Feb. 13, 2020)
Case details for

Friends Fawnskin v. Cnty. of San Bernardino

Case Details

Full title:FRIENDS OF FAWNSKIN, Plaintiff and Appellant, v. COUNTY OF SAN…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Feb 13, 2020

Citations

E070682 (Cal. Ct. App. Feb. 13, 2020)