Merced Citizens for Responsible Planning v. City of Merced

Filed 8/25/09 Merced Citizens for Responsible Planning v. City of Merced CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Glenn A. Ritchey, Jr., Judge.

Law Offices of Richard L. Harriman and Richard L. Harriman for Plaintiffs and Appellants.

Gregory G. Diaz, City Attorney, Jeanne Schechter, Deputy City Attorney; Rutan & Tucker, M. Katherine Jenson and Robert S. Bower for Defendants and Respondents.

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This is an appeal from judgment entered after the trial court sustained a demurrer to a second amended petition for writ of mandamus. We affirm the judgment.

Facts and Procedural History

Appellants Merced Citizens for Responsible Planning and Valley Advocates do not believe respondent (collectively, City of Merced and its city council) has built enough fire stations to accommodate the growth approved by respondent. They seek judicial intervention in the quintessentially political and legislative determination of the provision of firefighting services. (See Cairns v. County of Los Angeles (1997) 62 Cal.App.4th 330, 335, quoting from Cal. Law Revision Com. com. to 850 and 850.2, 32Wests Ann. Gov. Code (1995 ed.) p. 468, foll. 850.)

In the second amended petition for writ of mandate (see Code Civ. Proc., 1085), appellants allege 15 real estate developers are in the process of selling and constructing homes outside of the area specified and adopted by the City of Merced in its standard Conditions of Approval for required fire safety and protection of life and property. In addition, one commercial developer is actively engaged in prosecuting an application for project permits and entitlements for a regional distribution center located in an area of the City of Merced which currently is underserved in terms of the Citys own fire safety standards. The petition contends all of the developers are real parties in interest. Respondent, however, is the only party against which relief is sought in the petition.

The petition contends that respondent began in 1982 to establish fire response standards. Over the next two decades, respondent was presented with reports, plans, and policies from the fire chief seeking to implement these goals for fire response coverage. The documents, set forth in the petition and attached to it as exhibits, focus on response time for fire and emergency services and conclude respondent should plan to have a fire station within one and one-half miles of any structure in the city. The petition sets forth one of respondents early (1983) planning documents, which states in part: [V]arious areas within the city limits are beyond that 1-1/2 mile criteria. It is not advocated that a massive relocation effort be initiated, yet the maximum time to any area of the city should be established and a plan developed to bring our response needs within the time limits as established. Over the years, the petition alleges, respondents fire chiefs continually reported that growth was outpacing development of new fire stations and recommended relocating existing stations and building new stations to preserve response time standards.

In 1997, the petition alleges, respondent adopted a new general plan. One policy set forth in the plan was to control new development. As an implementing action for this policy, the plan stated that respondent should prepare master plans for providing fire protection and other services for all new growth areas after the adoption of the General Plan. The general plan contained extensive discussion of fire response goals and plans for achieving those goals. All of these provisions of the general plan are set forth in terms of goals, policies, and targets. In 2007, the petition alleges, respondent adopted specific priorities recommended by city staff for the development of new fire stations and setting up design and bidding requirements for the new stations. (The petition alleges the staff report provides inadequate data to accurately permit planning and that it does not provide an accounting of developer fees for the relevant period.)

Finally, in terms of preliminary matters, the petition alleges that on August 22, 2007, the City Planning Commission approved and adopted Amendments to Planning Commission Resolution No. 1175 (Standard Tentative Subdivision Map Conditions) Provision No. 7, which applies to all Tentative Subdivision Maps in the City of Merced, which is included for all subdivisions referred to hereinabove, to-wit: [] 7. All other applicable codes, ordinances, policies, etc. adopted by the City of Merced shall apply.

Appellants then come to their statement of the legal basis of their petition: Respondents have failed to discharge their mandatory duty set by the Council by Planning Commission Resolution No. 1175, which requires that all applicable codes, ordinances, policies, etc. adopted by the City of Merced shall apply and that there is substantial credible evidence to support a finding that the City Council has adequate funds to construct Fire Station No. 56 and that Council Resolution No. 2007-11 expressly authorizes the Council to borrow from other funds to fund the construction of fire stations. The petition alleges respondent has continued to issue building permits and other development entitlements in violation of respondents fire protection master plan, incorporated into the general plan and tentative subdivision map approvals. Appellants say their requests to respondent for resolution of these issues have not had satisfactory results.

The petition realleges that these planning and policy documents constitute a clear and express mandate for the construction of a particular new fire station and the relocation of an existing station but respondent has failed to do so, which results in numerous subdivisions being in violation of the General Plan fire protection requirements, final subdivision map requirements , City fire protection goals, policies, objectives, implementing actions, and other policies, agreements, and standards adopted by the City Council .

The petition states: The legal bases for [the requested] relief are set forth in the Subdivision Map Act (SMA) [Govt Code sections 66474, subd. (a), (b), and (g), 66499.33, 66499.34, and 66499.36 (which regulate the duty of the agency granting entitlements under the SMA)]; PRC section 21181.6 [sic; presumably Pub. Resources Code, 21081.6] (regarding compliance with the Mitigation Monitoring Program for each annexation and subdivision and Development Agreement Conditions of Approval); and the State Planning and Zoning Act [Govt Code section 65300.5 (requiring internal integration and consistency among general plan land uses and zoning and the Safety Element)]. (Second and fourth set of brackets in original.)

The petition seeks three primary forms of relief. First, it requests issuance of a writ of mandate to require respondent to enforce paragraph 7 of its standard conditions for tentative subdivision maps (the applicable codes, ordinances, policies, etc. adopted by the City of Merced shall apply provision quoted at page 3, ante); to enforce specified state subdivision and environmental laws; and to enforce the Conditions of Approval contained in its Development Agreements with property owners who are named herein as Real Parties in Interest. Second, the petition seeks a writ ordering respondent to cease issuance of any building permits, water and sewer connections, certificates of occupancy, and any and all other development entitlements in those areas which are not in compliance with the Citys General Plan fire protection standards and other specified laws, unless and until the City has caused the necessary new fire stations to be constructed and fully operational, as required by the foregoing legal mandates and authority. Third, the petition requests an order that respondent prepare an inventory list of all properties with development entitlements which are not located within areas complying with the fire safety requirements of the general plan, and provide notice of such noncompliance to property owners and other interested parties.

Respondent demurred to the second amended petition, just as it had to the earlier petitions. The demurrer asserted that the court lacked jurisdiction because the petition sought to control the Citys exercise of its legislative discretion. It asserted all claims were barred by applicable statutes of limitations and by appellants lack of standing. It asserted the petition was uncertain.

Appellants opposition to the demurrer was disjointed and failed to cite case authority for any of their claims. Appellants agreed the demurrer should be sustained as to all pending and future annexations, development agreements, and/or tentative or final subdivision maps that have not yet been approved by the City Council, including tentative subdivision maps approved but not yet adopted as final subdivision maps. Appellants conceded that as to those items they had not exhausted their administrative remedies.

As to recorded final subdivision map projects, the opposition contended, Government Code^[1]sections 66499.33 and 66499.36 imposed upon respondent a mandatory duty to declare final subdivision maps violative of the Citys fire safety standards set forth in the General Plan and other plans, such as the Bellevue Ranch Master Development Plan, due to the lack of fire stations which were planned and /or mandated by such plans upon which the Council relied in approving such [final subdivision maps] -- and City residents relied upon in making their decision not to oppose such [subdivisions]. Appellants assumed for purposes of [their] opposition to the Demurrer that cases cited by respondent precluded appellants from blocking issuance of building permits for approved and recorded final subdivision maps. Appellants contended, without citation of authority, that the future issuance of water and sewer connections is not ministerial and involves the exercise of discretion by the Respondents and is subject to the jurisdiction of this Court.

Appellants concluded that, by amendment or by order overruling the demurrer, appellants relief was properly limited to restrictions on issuance of water and sewer connection permits and to relief under section 66499.36.

Notwithstanding the express concession set forth above, when appellants turned to respondents contention that the second amended petition was vague and uncertain, appellants set forth an entirely new theory of relief. They contended they were entitled to a full accounting of the funds sequestered by the Respondents from developer fees as taxpayers and public interest litigants. No citation of authority is cited for this claim, and there is no indication how the new claim addresses the claim that the petition is vague and uncertain.

At the hearing on the demurrer, appellants focus shifted. Counsel argued that if respondent was not going to provide new and adequate fire stations, respondent had an obligation to require developers to provide such fire stations. Counsel contended this point had already been raised in the writ petition. In addition, counsel contended that if the City doesnt want to budget for [adequate fire service], the very least that we think is reasonable and required under section 66499.36, is that the City give notice to the property owners that they are not covered under the Citys own policies, goals, and objectives. Thats the bare minimum of relief that we have sought. We have pled that in the second amended complaint,

The court took the matter under submission and issued a written ruling sustaining the demurrer without leave to amend. The court found that the gist of the petition was appellants contention that respondent has a mandatory duty not to authorize builders to erect homes and improvements which are in excess of 1.5 miles distant from the nearest fire department station. The court finds, however, that the second amended petition does not sufficiently plead such a mandatory duty upon Respondents. In addition, the court impliedly concluded (other pleading impediments have been conceded or were not addressed by Petitioners) that as to pending subdivision maps, appellants had not exhausted their administrative remedies; as to recorded final maps, the 90-day statute of limitations barred appellants action. (See 66499.37.) Judgment of dismissal in favor of respondent was entered.

Appellants filed a timely notice of appeal.

Discussion

Appellants contend the petition adequately alleges a duty to comply with the mandatory provisions of Govt. C. section 66499.36. It is apparent, to the contrary, that section 66499.36 imposes no duty, mandatory or otherwise, on localities in circumstances like those alleged in this case.

As respondent contends, section 66499.36 deals only with sale of subdivided property before the final map thereof in full compliance with this division and any local ordinance has been filed for record . ( 66499.30.) Thus, section 66499.36 provides, as relevant here, Whenever a local agency has knowledge that real property has been divided in violation of the provisions of this division or of local ordinances enacted pursuant to this division, the locality shall give notice of intent to record a notice of violation. (Italics added.) Similarly, section 66499.33 permits an action to enjoin the subdivision or sale, lease, or financing of property that has not been subdivided in accordance with the Subdivision Map Act. ( 66410 et seq.) Nothing in either section suggests that relief is available under the subdivision map act to address subsequent infrastructure issues after a final subdivision map is duly approved and properly recorded.

Further, to the extent appellants may be deemed to allege that the final subdivision maps are inadequate in failing to require fire stations in newly developed areas, such claims, as appellants candidly acknowledge, are barred by the 90-day statute of limitations contained in section 66499.37.

Because appellants have not alleged any violation by respondent of any legally cognizable duty, we are not required to address the trial courts alternative conclusion that appellants lack standing to prosecute this action.

Disposition

The judgment is affirmed. Respondent is awarded its costs on appeal.

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VARTABEDIAN, Acting P. J.

WE CONCUR:

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LEVY, J.

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HILL, J.

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^[1]Further statutory references are to the Government Code.