Gilray v. Cambria> Com.
Services Dist.































Filed 4/3/13 Gilray v. Cambria Com. Services Dist. CA2/6











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.



IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE
DISTRICT



DIVISION SIX




>

JOHN F. GILRAY et al., Plaintiffs and Appellants, v. CAMBRIA COMMUNITY SERVICES DISTRICT, Defendant and Respondent.

2d Civil No. B239158 (Super. Ct. No. CV118265A) (San Luis Obispo County)

Property owners
petitioned for a writ of mandate and administrative
mandate to compel a community services district to act on their
applications for a service review and for sewer service. They also included a cause of action alleging
a taking of their properties.

The trial court
sustained the district's demurrer without leave to amend. The court concluded the district had no duty
to conduct a piecemeal service review or to hold a hearing on a petition for
sewer service without water service. It
also concluded the takings claim is not ripe for adjudication. We affirm.

FACTS

John F. Gilray, Donald
C. Berry and Mary E. Craighead (collectively Gilray) own individual parcels of
undeveloped property in Cambria. Cambria is an
unincorporated area in href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Luis
Obispo County (County). The Cambria
Community Services District (District) is responsible for providing services to
the area, including water and sewer services.

Gilray filed a petition
against the District for writ of mandate, writ of administrative mandate and
for damages in inverse condemnation. The
petition alleges: Gilray has paid special
assessments to fund and operate the District's sewage treatment plant, but has
never received sewer service. Gilray has
applied to the District for public service review and for sewer service, but
the District has refused to accept or process either application. The District has failed to point out any
incompleteness in the applications and they are deemed complete pursuant to
Government Code section 65943, subdivision (a).href="#_ftn1" name="_ftnref1" title="">[1] The District has sufficient sewage capacity
to serve Gilray's parcel.

Gilray requested that
the trial court order the District to conduct a service review and grant his
application for sewer services, or pay just compensation for taking his
property. Gilray did not attach copies
of the applications to his petition.

The district demurred to
the petition on the ground it has no legal duty to consider Gilray's
application.

DISCUSSION

I

The function of a
demurrer is to test the sufficiency of a pleading by raising questions of
law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In reviewing the sufficiency of a demurrer,
we deem all facts pled in the complaint to be true. (Holland
v. Thacher (1988) 199 Cal.App.3d 924, 928.)
But we do not assume the truth of contentions, deductions or conclusions
of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120,
125.) If upon consideration of all the
facts alleged or of which the court has taken judicial notice the plaintiff is
entitled to any relief, the complaint will be held good. (Chase
Chemical Co. v. Hartford Accident Indemnity Co. (1984) 159 Cal.App.3d 229,
242.)

II

Gilray contends the
District has a mandatory duty to accept and process his applications.

California Code of Civil
Procedure section 1085, subdivision (a) provides in part: "A writ of mandate may be issued by any
court to any inferior tribunal, corporation, board, or person, to compel the
performance of an act which the law specially enjoins, as a duty resulting from
an office, trust, or station . . . ."

To obtain a writ of
mandate, petitioner must show a clear and present ministerial duty on the part
of respondent and a clear and present beneficial right to the performance of
that duty in the petitioner. (>Santa Clara County Counsel Attorneys Assoc.
v. Woodside (1994) 7 Cal.4th 525, 539-540.)

Gilray argues that the
District's mandatory duties can be found in the County's master water plan,
specifically in the public services and utilities (PSU) and the community wide
(CW) measures.

PSU-3 provides: "Prior to submittal of land use and
building permit applications to San Luis Obispo
County, the [District] shall review
the development applications to ensure that police, schools, parks/recreation,
and solid waste facilities, services, and resources are adequate to support the
increased demands associated with new development."

PSU-5 requires the
District to comply with CW-8. CW-8
provides in part: "Prior to
application acceptance, land use and building permit applications shall include
a written verification of water and sewer service from the Cambria Community
Services District."

Gilray's application to
the District is limited to sewer service.
Nothing in PSU-3 or CW-8 requires the District to conduct a piecemeal
service review or to verify the availability of sewer service alone. To the contrary, CW-8 clearly requires a
developer to obtain verification of "water and sewer service" from
the District prior to submitting a land use or building permit application.

Gilray argues that the
Permit Streamlining Act (PSA), (§ 65920 et seq.), imposes a mandatory
duty. Gilray relies on section 65943,
subdivision (a). That subdivision
requires a public agency to notify an applicant for a "development
project" in writing whether the application is complete. If the agency fails to point out any
incompleteness within 30 days of submission, the application is deemed
complete. Gilray argues that because the
District failed to point out any incompleteness in his applications, its
applications are deemed complete.

Gilray's argument is
flawed. Even if the PSA applies, Gilray
is not helped. His application may be
deemed complete, but it does not change the nature of the application. It is still for sewer service only. Gilray does not claim he intended to apply
for water and sewer service. In fact, he
acknowledges that the District has imposed a water moratorium. In addition, in spite of much discussion of
the water moratorium in his opening brief, he acknowledges that he is not
challenging the water moratorium in this action. Gilray cites no authority requiring the
District to treat his application as one for water and sewer service, an
application he did not make, and in fact never intended to make.

In any event, the PSA
does not apply here. It applies to a
"development project[]."
(§ 65921.) For the purposes
of the PSA, "'development' means:
[O]n land . . . the placement of any solid material or
structure . . . ."
(§ 65927.) Gilray points out
that "structure" includes any "pipe, flume, conduit, siphon [or]
aqueduct . . . ." (>Ibid.)
But Gilray did not apply to place any structure on the land. Instead, he applied for a commitment from the
District to allow him to connect to the sewer system. That is not a development project. A commitment from the District would not
allow Gilray to place any solid structure on the land.

Gilray argues that the
commitment for sewer service is at least a step in obtaining a permit for a
development project. But it is not even
a step. CW-8 plainly requires that the
District verify "water and sewer" service. No matter how hard Gilray tries, he cannot make
the words "water and" go away.

For the first time on
appeal, Gilray contends the District, as the lead agency, is required by the
California Environmental Quality Act (CEQA) to hold a hearing.

Gilray argues that under
CEQA, the lead agency must determine whether an application is complete,
whether the proposed activities are subject to the exemption from CEQA, and
whether to file a notice of exemption.
(14 Cal. Code Regs.,
§§ 15060 (a) & (c), 15061 (a) & (d).)

Section 65950,
subdivision (a) requires a "public agency that is the lead agency for a
development project" to approve or disapprove the project within 180 days
from when the agency certifies an environmental impact report (EIR), or 60 days
if the application is exempt from CEQA or a negative declaration is adopted.

Gilray points out that
the District was the lead agency for Cambria's Master
Water Plan. But that does not mean it is
the lead agency for every application that may involve water.

Section 65950,
subdivision (a) applies only to a lead agency for a development project. CEQA defines "'project'" as
"an activity which may cause either a direct physical change in the
environment, or a reasonably foreseeable indirect physical change in the
environment . . . ." (Pub.
Resources Code, § 21065.)

Gilray argues that
building a home certainly causes a direct physical change in the
environment. But Gilray did not apply to
the District for a permit to build a home, and the District has no power to
grant such a permit in any event. That
power is vested in the County. Gilray
only applied to the District for a service review and verification that the
District would provide sewer service if the County ever grants a building
permit. Neither the review nor the
verification can cause any direct or indirect physical change in the
environment. CEQA does not apply.

Finally, Gilray argues
that because he pays a special assessment for sewer service, the District has a
mandatory duty to provide it. In support
of his argument, Gilray cites only Knox
v. City of Orland (1992) 4 Cal.4th 132.
But Knox does not discuss
whether an assessment creates a mandatory duty to provide service. The question in Knox was whether the assessment for park maintenance was
valid. A case is not authority for
issues not discussed therein. (>Contra Costa Water Dist. v. Bar-C Properties
(1992) 5 Cal.App.4th 652, 660.)

Because the District has
no mandatory duty to accept and act on Gilray's applications, he is not
entitled to a writ of mandate. Nor is
Gilray entitled to a writ of administrative mandate. (Code Civ. Proc., § 1094.5.) Gilray cites Helene Curtis, Inc. v. Los Angeles County Assessment Appeals Board (2004)
121 Cal.App.4th 29, 37, for the proposition that a hearing need not have taken
place for Code of Civil Procedure section 1094.5 to apply, as long as a
hearing was legally required. Suffice it
to say, no such hearing was legally required.

III

Gilray contends he
alleged a taking even if the District had no mandatory duty to accept and
process his applications.

Gilray argues there is a
taking when there is a deprivation of all economically beneficial use. (Citing Lucas
v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1018-1019.)

But as the Supreme Court
explained in Palazzolo v. Rhode Island (2001)
533 U.S. 606, 618: "[A] takings
claim challenging the application of land-use regulations is not ripe unless
'the government entity charged with implementing the regulations has reached a
final decision regarding the application of the regulations to the property at
issue.'" (Quoting >Williamson Planning Commission v. Hamilton
Bank (1985) 473 U.S. 172, 186.)

Here far from having
obtained a final decision from the District, Gilray has not even submitted a
proper application. Gilray's takings
claim is not ripe.

IV

Finally, Gilray contends
the trial court erred in not granting him leave to amend the petition. But Gilray does not suggest how he could
amend to state a viable cause of action.
Thus he has failed to show error.

The
judgment is affirmed. Costs on appeal
are awarded to respondent.

NOT TO BE PUBLISHED.









GILBERT,
P.J.





We concur:







YEGAN, J.







PERREN, J.

Jac
Crawford, Judge



Superior
Court County of San Luis Obispo



______________________________





Blum Collins, LLP, Craig
M. Collins and Gary Ho for Plaintiffs and Appellants.

Carmel & Naccasha,
LLP, Timothy Carmel and Michael M. McMahon for Defendant and Respondent.