Jarvis, Fay, Doporto & Gibson, Rick W. Jarvis and Gabriel McWhirter for Defendants and Appellants. Law Offices of Daniel W. Smith, Daniel William Smith for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 680381)
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge. Jarvis, Fay, Doporto & Gibson, Rick W. Jarvis and Gabriel McWhirter for Defendants and Appellants. Law Offices of Daniel W. Smith, Daniel William Smith for Plaintiff and Respondent.
In this case, plaintiff North Modesto Groundwater Alliance (NMGA) missed the 30-day statute of limitations under the California Environmental Quality Act (CEQA) by eight months. Nonetheless, the trial court permitted NMGA to proceed and awarded it CEQA relief, finding that the City of Modesto's (city) environmental review of a water project was defective under that statute. The court's decision to allow NMGA to proceed under CEQA was based on its finding that the city denied NMGA's members their constitutional right to due process of law by failing to give them individualized notice of the project, which they claimed had an effect on their nearby property.
NMGA had no constitutional right to pursue a stale CEQA claim. The trial court's contrary conclusion was based on error. We will reverse the judgment and direct the trial court to enter judgment for the city.
FACTS AND PROCEDURAL HISTORY
The city provides water service to a community called Del Rio, consisting of 343 houses and located outside the city limits. In 2005, the city found that its supply system for Del Rio could not maintain sufficient pressure and therefore required improvements. To settle litigation over this issue with residents, the city agreed in 2005 to construct facilities that would include two wells, a storage tank, generators, and pipelines.
In 2010, the city prepared a water system engineer's report. This report set forth a capital improvement program for the city's water system. It included a description of the improvements contemplated for Del Rio and identified tentative locations for them within Del Rio. The city also prepared and certified a program environmental impact report (program EIR) to accompany the water system engineer's report and satisfy the requirements of CEQA (Pub. Resources Code, § 21000 et seq.) by assessing the environmental impacts of the proposed improvements.
In 2011, the city made more concrete plans for the Del Rio project. It focused on one site at McHenry Avenue and Stewart Road, within Del Rio, and another site on Ladd Road outside Del Rio. One well would be drilled at the McHenry-Stewart site and the second well and the storage tank would be constructed at the Ladd Road site.
The city sent letters to, and conducted a public meeting for, neighbors of the sites. NMGA members participated. At the meeting, neighboring property owners raised concerns about the appearance of the proposed project, noise it might generate, the impact it might have on the groundwater level in the vicinity, and the possible consequences for neighbors' wells.
The city next conducted an initial study to determine whether it could rely on the 2010 program EIR's coverage of the Del Rio project or would instead need to prepare a new EIR before proceeding to construct the project. It found the program EIR covered the project's impacts and potential mitigation measures. A finding of conformance was prepared, stating that no new EIR was necessary. The city published a public notice in the Modesto Bee stating that it intended to adopt these findings and approve the project at a city council meeting. The city did not send individual notices to NMGA's members. At a city council meeting on March 13, 2012, the city adopted the finding of conformance and approved the project. A notice of determination was filed with the county clerk on March 15, 2012.
In cases in which a public agency properly files a notice of determination regarding a decision like the city's approval of the finding of conformance, a CEQA action challenging the decision must be filed in the superior court within 30 days of the filing of the notice. (Pub. Resources Code, § 21167, subd. (e).) (In circumstances in which an agency fails to consider whether CEQA applies or makes an improper determination that CEQA does not apply, a 180-day limitations period applies. (Pub. Resources Code, § 21167, subds. (a), (d).) NMGA has not claimed that the longer period applies in this case.) NMGA filed its petition for a writ of mandate in the superior court on December 20, 2012, more than nine months after the city filed the notice of determination.
The petition alleged that the city's finding of conformance did not satisfy the requirements of CEQA and a project-level EIR should have been prepared. The petition further alleged that the city denied NMGA's members their constitutional right to due process of law by not providing them with individualized notice of the city council meeting at which the project was approved. This was alleged to be the reason why the action was not filed during the limitations period. The petition sought a judgment invalidating the city's approval of the project, requiring the finding of conformance to be set aside and prohibiting the city from proceeding with the project until it carried out a new environmental review. It also sought a declaration that the city violated NMGA's members' due process rights.
The trial court issued a preliminary injunction in February 2013, forbidding the city to proceed with the project while the litigation was pending. Settlement negotiations ensued but were unsuccessful. The city council nevertheless decided on November 12, 2013, to rescind its approval of the project. It directed its staff to carry out a project-level environmental review instead of relying on the 2010 program EIR. In the trial court, the city filed a motion for judgment, arguing that the rescission of the project approval and resolution to perform a project-level environmental review rendered the petition moot. The trial court disagreed and denied the motion in May 2014.
The court issued a tentative ruling on the petition on May 11, 2015. In the tentative ruling, the court found that the city violated NMGA's members' due process rights by not giving them individualized notice of the city council meeting held on March 13, 2012, to approve the project. It further found that the finding of conformance was not supported by substantial evidence and that the city would have to carry out a new initial study, followed by either a negative declaration or a project-level EIR. The court declined to specify that an EIR would be necessary. Neither party requested a hearing on the tentative ruling and it became the court's ruling. Judgment was entered on May 28, 2015.
I. NMGA's members had no due process right to individualized notice
The logical structure of NMGA's lawsuit is as follows: Because NMGA's members did not receive individualized notice and an opportunity to be heard before the city approved the project, NMGA's procedural due process rights were violated. Because NMGA's procedural due process rights were violated, NMGA is entitled to bring a CEQA claim despite the expiration of the limitations period. Under CEQA, the city's approval of the project should be reversed because substantial evidence did not support the city's finding that the project conformed to the previously approved program EIR.
This structure has consequences for the issue of the applicable standard of review. NMGA's due process claim logically precedes its CEQA claim: Because of the statute of limitations, the CEQA claim is not even arguably viable unless the due process claim is valid. This means that one of the standards of review set forth for mandamus petitions in the Code of Civil Procedure (Code Civ. Proc., §§ 1085, 1094.5) applies to NMGA's due process claim, not the standards of review stated in CEQA (Pub. Resources Code, §§ 21168, 21168.5).
A local government agency's action can be legislative or adjudicative. Judicial review of a legislative act by writ of mandate proceeds under Code of Civil Procedure section 1085 and is limited to determining whether the public agency's action was arbitrary, capricious, entirely without evidentiary support, or procedurally unfair. (San Francisco Tomorrow v. City and County of San Francisco (2014) 228 Cal.App.4th 1239, 1248.) A legislative act is presumed valid, the agency need not make explicit findings to support its action, and a court cannot inquire into the act's wisdom or review its merits. (Ibid.) Mandamus review of an adjudicative act is subject to Code of Civil Procedure section 1094.5. The agency's adjudicative act cannot be upheld if the agency failed to proceed in a manner required by law or the act is not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).) In some such cases, when considering a claim of lack of evidentiary support, the reviewing court decides whether substantial evidence supports the agency's action. In others, the court exercises its independent judgment on whether the action is supported by the weight of the evidence. (Code Civ. Proc., § 1094.5, subd. (c).) Mandamus review of an agency's legislative act is thus more deferential than review of an adjudicative act. In order to decide whether the trial court carried out its task correctly, therefore, we must first determine whether the city's action in approving the project was legislative or adjudicative.
A. The city's decision to approve the project was a legislative act
The case law makes it clear that the approval of the project was a legislative act. The city made a decision to build and operate improvements to a public water system in a certain location. "[T]he decision of a city to build and operate a public structure is unquestionably legislative in nature." (Teachers Management & Inv. Corp. v. City of Santa Cruz (1976) 64 Cal.App.3d 438, 447 (Teachers Management).) "The principle that decisions of public entities as to the location of public improvements are legislative in character has been applied by both the [California] Supreme Court and the courts of appeal in a variety of contexts." (Oceanside Marina Towers Assn. v. Oceanside Community Development Com. (1986) 187 Cal.App.3d 735, 745 (Oceanside Marina Towers).) Public improvements to which this principle has been applied include a railroad switching yard (id. at p. 738), a prison (Sagaser v. McCarthy (1986) 176 Cal.App.3d 288, 312 (Sagaser)), a convention center (Teachers Management, supra, at p. 441), and a highway (Sinclair v. State (1961) 194 Cal.App.2d 397, 406-407 (Sinclair)), all of which could be expected to have significant effects on neighboring properties. These decisions are deemed legislative and not adjudicative because, although the interests of surrounding property owners are among the considerations at stake, the agency "must ... balance those [interests] against the benefits accruing to the public generally as a result on the improvement." (Oceanside Marina Towers, supra, at p. 746.) This is a quintessentially political or legislative balancing. The California Supreme Court bolstered this view in San Diego Building Contractors Assn. v. City Council of the City of San Diego (1974) 13 Cal.3d 205, 213 (San Diego Building Contractors), where in passing it referred to "decisions as to the location of public improvements" as an example of the type of decision that is legislative in character even though it may have a substantial direct effect on neighboring land values.
The trial court cited Horn v. County of Ventura (1979) 24 Cal.3d 605 (Horn) in support of its contrary conclusion, but that case is not on point. There, our Supreme Court discussed the difference between legislative and adjudicative acts, and did so in a case in which, as here, a property owner claimed a due process violation arising from a lack of notice of a local government's decision allegedly affecting the property. (Id. at pp. 610, 612-616.) But the challenged decision in Horn was the approval of a tentative subdivision map. (Id. at p. 610.) In holding that this decision was adjudicative, our Supreme Court distinguished between narrower, parcel-specific land-use planning decisions, such as decisions to approve a subdivision map, grant a variance or approve a conditional use permit, and broader land-use planning decisions, such as a decision to enact a general zoning ordinance. (Id. at pp. 613-614.) The former class of decisions is adjudicative because it involves "the application of general standards to specific parcels of real property"; the latter is legislative. (Id. at p. 614.) The Horn court had no occasion, however, to consider whether a local government's decision to build a public improvement on a particular site is legislative or adjudicatory, and the essence of that type of decision is neither the adoption of a general land-use regulation nor the application of a general land-use regulation to a specific parcel. There is no hint in Horn of any intention on our Supreme Court's part to modify the law regarding decisions to site and build public improvements, which, as the cases cited above indicate, was already settled by the time Horn was decided in 1979. A case is not authority for a proposition it did not consider. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
NMGA's brief contains extensive discussion of the question of whether the Del Rio project affects many people or few and whether or not it is part of the city's general scheme for providing water to residents. NMGA's notion is that if the project affects few people and is not part of the city's water program, then it is an adjudicative matter. We consider it patent that the project affects many people and is part of the city's water program. The answer to the legislative-versus-adjudicative question does not depend on this, however. Rather, the law on the status of government decisions to site and build public improvements is controlling.
NMGA also cites correspondence in the record between city staff and Stanislaus County staff on the subject of whether the county would need to approve conditional use permits before the project could be built on the two properties, which are under county jurisdiction. The city and county staff members agreed that, although a conditional use permit would be required under the county's zoning ordinance for this kind of construction were it to be carried out by private parties, state law created an exception for local governmental agencies. NMGA argues that under Horn, supra, 24 Cal.3d 605, the issuance of a conditional use permit is an adjudicative action, so the decision to build the project should be deemed adjudicative as well, since it would require a conditional use permit were the circumstances other than they are.
This argument is not persuasive. The law under the cases we rely on is that a decision to site and build public improvements is deemed a legislative action because it requires a public agency to weigh the public welfare. If a government agency and the public welfare were not involved, both the constitutional considerations and the permitting requirements would be different. But those are not the facts before us.
One might ask: What if state law were different and the county was authorized to require the city to apply for a conditional use permit? Would the project be adjudicative under Horn because of the conditional use permit, or would it be legislative under Oceanside Marina Towers, supra, 187 Cal.App.3d 735, for instance, because it was a decision to site and build a public improvement? This is an interesting question, but we need not answer it in this case.
Because the city's action in approving the project was legislative in character, the trial court was required to uphold it unless it was arbitrary, capricious, entirely without evidentiary support, or procedurally unfair. So the next question is whether the city abused its discretion under that standard when it approved the project without giving individual notice to NMGA's members.
B. The city did not abuse its discretion
The city's action in proceeding with project approval without individual notice to NMGA's members was not arbitrary, capricious, entirely without evidentiary support, or procedurally unfair, because individual notice to neighbors is not required when an agency makes a legislative decision. The same case law that deems legislative a decision about where to build and operate a public improvement also states that no one has a due process right to individualized notice that a legislative decision is pending. (Oceanside Marina Towers, supra, 187 Cal.App.3d at p. 746; Sagaser, supra, 176 Cal.App.3d at p. 312; Sinclair, supra, 194 Cal.App.2d at pp. 406-407; Teachers Management, supra, 64 Cal.App.3d at p. 447; San Diego Building Contractors, supra, 13 Cal.3d at pp. 213-214.) As our Supreme Court observed in Horn, the rule that legislative decisions do not trigger due-process-based notice and hearing requirements has long been established. (Horn, supra, 24 Cal.3d at p. 613 [citing Justice Holmes's opinion for court in Bi-Metallic Inv. Co. v. State Bd. of Equalization (1915) 239 U.S. 441, 445].) The city could not abuse its discretion by not doing that which it was not obligated to do.
NMGA cites two federal cases, Harris v. County of Riverside (9th Cir. 1990) 904 F.2d 497 (Harris) and Hotel & Motel Assn. of Oakland v. City of Oakland (9th Cir. 2003) 344 F.3d 959 (Hotel & Motel), in support of its view that it was entitled to individualized notice regardless of whether the decision was legislative or adjudicative. In these cases, the Ninth Circuit suggested that due process requires individualized notice and a hearing, regardless of whether a governmental decision is deemed legislative or adjudicative, whenever a regulatory decision has an exceptional impact on relatively few individuals. (Harris, supra, at p. 502; Hotel & Motel, supra, at p. 969.) In one case, the decision was a general plan amendment that rezoned the plaintiff's property for the express purpose of making his business illegal (Harris, supra, at p. 499), and in the other the adoption of an ordinance imposing maintenance and habitability standards on hotels (Hotel & Motel, supra, at pp. 963-964). In Harris, the court held that due process entitled the plaintiff to individualized notice because the county specifically targeted his property for rezoning and did so after notice had been published for the remainder of the general plan amendment, rendering the action not a part of the general plan amendment. (Harris, supra, at p. 502.) In Hotel & Motel, it held the plaintiffs had no such due process right because the new rules were generally applicable to hotels in a broad geographic area. (Hotel & Motel, supra, at p. 969.) Neither case persuades us that neighboring property owners, even if injured in their property, had a right to individualized notice here. We deal here not with a local government's general or specific decision to regulate property, but with its decision to build public improvements in locations where the neighbors would prefer they were not built. The California cases we have discussed say there is no due process right to individual notice in that situation. Harris and Hotel & Motel do not hold otherwise.
C. NMGA made virtually no showing of a due process violation
Even if the city's decision had been an adjudicative one, it would still have been up to NMGA to prove its members' entitlement to individual notice. It is not the case, of course, that every resident claiming to be aggrieved by a local government's adjudicative action is entitled to every procedural safeguard he or she considers appropriate. To establish a procedural due process violation, a claimant must show a substantial deprivation of liberty or property and must also show that the procedures demanded are justified in light of the administrative burden they would impose on the agency. As we will explain, NMGA scarcely even attempted to make the necessary showing.
A plaintiff making a procedural due process claim against a government agency—that is, a claim that the agency made a decision without affording the plaintiff notice and a hearing guaranteed by the state and federal Constitutions—must establish that due process protections apply. One thing the plaintiff must show is that he or she suffered a substantial deprivation of his or her protected interest in property or liberty. (Horn, supra, 24 Cal.3d at p. 616.) Governmental actions that affect neighboring landowners can cause a substantial deprivation of property for purposes of procedural due process analysis (id. at p. 615; Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 548-549), but for a plaintiff to prevail at trial, this must be shown, not merely alleged. (See Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1323 [plaintiff claiming deprivation of property without procedural due process had burden of showing due process right attached to claimed deprivation].) A plaintiff also must show that the procedures he or she says should have been provided (e.g., notice and a predeprivation hearing) are justified in light of the administrative burdens involved. (Horn, supra, at p. 617; Mathews v. Eldridge (1976) 424 U.S. 319, 334-335.)
NMGA did not prove its members' property interests were substantially harmed under either of the approaches to reviewing factual findings in Code of Civil Procedure section 1094.5. NMGA has cited nothing in its appellate brief from which we could conclude that it submitted anything either in the agency proceedings or in the trial court that would support a finding that such substantial harm was likely. NMGA cites places in the record showing neighbors expressed "concerns," "apprehension," and "anxiety" about possible impacts of the project. It also says it "demonstrated" that the project threatened neighbors' groundwater access because the city admitted there was a history of groundwater overdraft in the region, and the sustainable yield of the groundwater subbasins under Modesto and Turlock was unknown. These, however, are merely facts about possible impacts and fears of possible impacts. There is no indication that NMGA ever attempted to make an evidentiary showing that its members' property or property values were actually likely to be harmed.
Seemingly aware of the weakness of the record in this respect, NMGA claims the city is making an "attempt at shifting responsibility for CEQA analysis" to NMGA. CEQA burdens, however, do not apply to NMGA's due process claim. As we have said, NMGA had to establish its due process claim and demonstrate that the CEQA statute of limitations was inapplicable before CEQA analysis would apply.
Citing Horn, supra, 24 Cal.3d at page 615, NMGA contends that it made the allegations necessary to state a due process claim. Unlike Horn, however, this is not a pleading case. The question in Horn was whether the trial court correctly sustained a demurrer. (Id. at p. 611.) This case, by contrast, is an appeal after trial, and the question is what NMGA proved, not what it pleaded. II. The CEQA action was time-barred
A. The statute of limitations was not tolled based on lack of notice
As explained above, this lawsuit is premised on the notion that NMGA was entitled to file its petition for writ of mandate many months after the limitations period expired because its members' due process rights were violated when the city failed to give them individual notice of the city council meeting at which the project was approved. Since there was no right to individual notice, NMGA's sole argument against application of the statute of limitations fails. It follows that the trial court lacked jurisdiction over the case and should have dismissed it and entered judgment for the defense. The Court of Appeal reached the same conclusion in Oceanside Marina Towers, supra, 187 Cal.App.3d at pages 737 through 738, in which, as here, the plaintiff attempted to overcome a statute-of-limitations defense to a CEQA action by claiming a denial of due process based on a lack of individual notice of a governmental decision.
B. The procedural due process claim would not have revived the CEQA action in any event
There is no reason to believe that, even if NMGA had demonstrated a due process violation, a right to revive a stale CEQA action would have been the remedy. NMGA has not cited any authority for this notion, and its only argument for it is that the city has not explained what the remedy would be, if not the right to bring the late CEQA action. The answer to the latter question is obvious: If NMGA had been entitled to individual notice of the city's action before the meeting in which the action was taken, the remedy would be to vacate the decision and give NMGA's members notice and a right to be heard before the decision could be made again. But we see no reason why, in addition to this, NMGA would be entitled to judicial review of the decision under CEQA. Due process gives property owners a right not to be deprived of their property without proper notice and a hearing that meets due process standards. It does not give them a right to agency environmental review followed by judicial review of the agency's performance. Those rights are purely statutory.
On this issue, NMGA cites Horn, supra, 24 Cal.3d 605, and Kennedy v. City of Hayward (1980) 105 Cal.App.3d 953. Both cases held that an agency denied a neighboring property owner due process by approving a project without individual notice, and both held that the public notice procedures in CEQA, which were employed by the agencies, were not an adequate substitute for individual notice. They also held that the agencies' decisions would have to be vacated and made again in a proper hearing after proper notice. (Horn, supra, at pp. 616-618; Kennedy, supra, at pp. 962-963.) But neither ruled on any CEQA claims or held that the plaintiffs would be entitled to advance CEQA claims that had not been brought within the limitations period. III. Remaining issues
The city argues the trial court was mistaken in its view that the finding of conformance was not supported by substantial evidence and in its conclusion that a negative declaration or an environmental impact report needed to be prepared. Because we have held that NMGA's CEQA claims were barred by the statute of limitations and the court ought not to have ruled on them at all, it is unnecessary for us to address the merits of those claims or the court's rulings on them.
The city also argues, as an alternative to its arguments on the merits of the due process and CEQA claims, that the trial court should have granted its motion to dismiss the case as moot. Again, because of the foregoing discussion, we need not address this argument.
The judgment is reversed. The trial court is directed to enter a defense judgment and deny writ relief on all causes of action. Appellants are awarded costs on appeal.
SMITH, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________