Save Our Specific Plan v. County of Orange

















Filed 1/25/13 Save Our Specific Plan v. County of Orange
CA4/3











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NOT TO BE PUBLISHED IN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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

SAVE OUR SPECIFIC PLAN et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE et al., Defendants and Respondents; CHAD KEARNS, Real Party in Interest.

G046416 (Super. Ct. No. 30-2010-00421724) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Kim Garlin Dunning, Judge.
Affirmed.

Shute,
Mihaly & Weinberger and Ellison Folk for Plaintiffs and Appellants.

Nicholas
S. Chrisos, County Counsel and Nicole M. Walsh, Deputy County Counsel for
Defendants and Respondents.

Hart, King &
Coldren, Robert S. Coldren, C. William Dahlin, Boyd L. Hill; Greenwald &
Hoffman, Paul E. Greenwald, Paul A. Hoffman and John R. Flocken for Real Party
in Interest.

Real party in interest
Chad Kearns, whose property has long housed commercial stables, sought a
conditional use permit to allow him to have wine tastings and special events on
his property in the Modjeska Canyon area.
Although a large number of neighbors supported the plan, not all the
inhabitants of the area were supportive.
The opposition was spearheaded by Save Our Specific Plan and Sherry
Meddick (appellants). The Orange County
Planning Commission (Planning Commission) denied the conditional use permit,
but Kearns prevailed on his appeal to the Orange County Board of Supervisors
(Board of Supervisors) after he modified his application. Appellants thereafter filed a petition for
writs of both ordinary and administrative mandamus (Code of Civ. Proc., §§
1085, 1094.5), seeking to overturn the board’s decision to issue the
conditional use permit. The superior
court denied the petition and this appeal ensued. We affirm.

I

FACTS AND PROCEDURAL SETTING

Kearns owns an
approximately 10-acre piece of property on Jackson Road in the Modjeska
unincorporated area of Orange County. In
addition to containing a residence built in 1940, the property has two barns, a
clubhouse, and horse training rings. The
property was previously approved to house an 80 stall commercial horse stable
and a vineyard. Kearns’s property is
zoned A1-SR, “General Agriculture.”

In 2009, Kearns
submitted an application for a conditional use permit authorizing “additional
uses and structures . . . previously approved . . . to allow wine, beverage,
snack, and ancillary gift retail sales, use of an existing clubhouse as a wine
tasting room and evening dinner restaurant, use of an existing garage as a
producing winery, addition of carport for off-street parking requirements and
the addition of two horse stalls/stables.
The Use Permit request would also allow for special events (weddings
anniversaries, parties and fundraisers) up to 300 persons and off-street
parking modifications per Zoning Ordinance Section 7-9-145.7.”

A report
prepared by the county noted the use permit would not involve any new
development: “The project site is
currently developed with an existing ranch house, two barn structures, a
clubhouse, and various paddock areas and training rings. In 2008, the County Zoning Administrator
approved Planning Application PA060093 for a Use Permit to allow an 80 horse
commercial stable. Presently, the
commercial stable is operating with
approximately 42 horses. The current
application proposes additional uses and does not involve any substantial
physical changes to the property.” An
Orange County planning report noted the land to the north of the property was
used for agriculture and residential, the land to the east for large lot
residential, the land to the south was open space, and the land to the west for
general agriculture.

The Planning
Commission denied Kearns’s application on January 13, 2010. Kearns appealed the denial to the Board of
Supervisors. After conducting a public
hearing on the matter on May 4, 2010, the Board of Supervisors unanimously
remanded the matter to the Planning Commission to reconsider the project in
light of revisions suggested by Kearns.
Kearns proposed the special events be limited to a maximum of 200
people, the events be held only on Saturdays and Sundays, and wine tastings
would not be held on the dates of special events. The Board of Supervisors directed the Planning
Commission to determine the maximum number of special events to be held on the
property each year, whether to permit amplified music, the maximum amount of
people to attend the special events (200 suggested), and other relevant issues.

In sending the matter back to the Planning Commission, Supervisor
Campbell made a number of statements for consideration by the commission,
including: “The A1 General Agricultural
Zoning applicable to this property allows for uses that the Planning Commission
finds to be consistent with the purpose and intent of the District. The purpose and intent of the A1 Zone is
defined as providing for agriculture, outdoor recreational uses and those low
intensity uses that have a predominately open space character. This gives the decision makers fairly broad
latitude for interpretation.” The
supervisor stated the vineyard appears to be consistent with the agricultural
zoning and the Planning Commission may consider limiting the number of special
events to be held on the property each year, requiring the events to end at
sundown to avoid disturbing residents, limiting the special events to no more
than 200 people, requiring on-site parking, and stating that restaurant use is
unlikely to be consistent with the agricultural zoning.

The planning report prepared in anticipation of rehearing the
application suggested that if the permit is approved, the commission should
limit special events to no more than 20 a year, limit the number of guests at
the events to a maximum 200, and deny the application for formal restaurant
use. The report did not recommend
against amplified music because the noise study demonstrated the project would
comply with the county noise ordinance.

On July 28,
2010, the Planning Commission held a second public meeting on the permit
application and voted three to one to deny the application. Kearns again appealed. This time the Board of Supervisors approved
the permit with certain conditions. The
Board of Supervisors found the proposed use to be consistent with the General
Plan, the zoning law, and issued a mitigated negative declaration, finding an
environmental impact report (EIR) is not required under the California
Environmental Quality Act (CEQA). The
restaurant was not approved, Kearns having withdrawn the request for approval
of a small restaurant. Conditions
imposed on the conditional use permit include limiting wine tastings and retail
sales to the hours of 10:00 a.m. to 5:00 p.m., limiting the number of special
events to 20 per year, and requiring special events to conclude by sundown.

Appellants filed a petition for a writ of mandate on November 2,
2010, challenging the Board of Supervisors approval of Kearns’s application for
a conditional use permit. The petition
alleged the county violated CEQA by failing to have an EIR prepared and by adopting
a negative declaration; issuance of the conditional use permit violated zoning
regulations, the Orange County General Plan (General plan), and the
Silverado-Modjeska Specific Plan (Specific Plan); and sought declaratory
relief. The superior court denied the
petition after hearing oral argument.
The court found that contrary to appellants’ contention, the use permit
is not inconsistent with the Specific Plan or the General Plan. Other relevant facts are set forth below.

II

DISCUSSION

A. Standard of Review

Appellants
contend issuance of the conditional use permit in this matter was not
consistent with General Plan or the Specific Plan. As we observed in Endangered Habitats League, Inc. v. County of Orange (2005) 131
Cal.App.4th 777, “The general plan functions as a ‘“constitution for all future
developments,”’ and land use decisions must be consistent with the general plan
and its elements. [Citation.]” (Id.
at p. 782.) A project must be compatible
with the policies and objectives of the general plan, but “[p]erfect conformity
is not required.” (Ibid.)

“‘[A]
governing body’s conclusion that a particular project is consistent with the
relevant general plan carries a strong presumption of regularity that can be
overcome only by a showing of abuse of discretion.’ [Citations.]
‘An abuse of discretion is established only if the [agency] has not
proceeded in a manner required by law, its decision is not supported by findings,
or the findings are not supported by substantial evidence. [Citation.]
We may neither substitute our view for that of the [local agency], nor
reweigh conflicting evidence presented to that body. [Citation.]’
[Citation.] This review is highly
deferential to the local agency, ‘recognizing that “the body which adopted the
general plan policies in its legislative capacity has unique competence to
interpret those policies when applying them in its adjudicatory capacity. [Citations.]
Because policies in a general plan reflect a range of competing
interests, the governmental agency must be allowed to weigh and balance the
plan’s policies when applying them, and it has broad discretion to construe its
policies in light of the plan’s purposes.
[Citations.] A reviewing court’s
role ‘is simply to decide whether the city officials considered the applicable
policies and the extent to which the proposed project conforms with those
policies.’ [Citation.]” [Citation.]’
[Citation.] Because an appellate
court’s task in review of a mandate proceeding is essentially the same as that
of the trial court, we review the agency’s actions directly and are not bound
by the trial court’s conclusions.
[Citations.]” (>Friends of Lagoon Valley v. City of
Vacaville (2007) 154 Cal.App.4th 807, 816-817.) “Under this standard, we defer to an agency’s
factual finding of consistency unless no reasonable person could have reached
the same conclusion on the evidence before it.
[Citation.]” (>Endangered Habitats League, Inc. v. County
of Orange, supra, 131 Cal.App.4th
at p. 782, fn. omitted.)



B. Orange County’s General Plan

Orange County’s General Plan was modernized in 2000, and amended a
number of times thereafter. It contains
elements for land use, transportation, public services and facilities,
resources, recreation, noise, safety, housing, and growth management. However, the only elements of the General
Plan before us in the administrative record are the growth management and land
use elements.

The land use element states it is the “most current expression of
County land use policy and is internally consistent with the other General Plan
elements.” The land use element contains
four categorized potential constraints on achieving objectives and policies set
forth in the General Plan: environmental constraints, including noise, flood
hazards, fire hazards, geologic/seismic hazards, and natural and cultural
resources; fiscal constraints and deficiencies; economic and market
constraints; and governmental constraints.
This element addresses neighborhood commercial guidelines and
distinguishes neighborhood commercial designation from regional and commercial
centers.

The growth management element expressly refers to the Specific Plan
and provides: “New development within
the Silverado-Modjeska Specific Plan . . . planning areas shall be rural in
character and shall comply with the policies of [the specific plan] in order to
maintain a buffer between urban development and the Cleveland National Forest.”




C. Zoning

As
noted above, the property is zoned A1, general agricultural. “The A1 District is established to provide
for agriculture, outdoor recreational uses, and those low intensity uses which
have a predominately open space character.
It is also intended that this district may be used as an interim zone in
those areas which the General Plan may designate for more intensive urban uses
in the future.” Land zoned for general
agricultural, may be used principally for agriculture or a single-family
dwelling. (Orange County Code, §
7-9-55.2(a), (d).) Other principal uses
are permitted subject to approval of a site development permit (Orange County
Code, § 7-9-55.3), and still others are permitted upon obtaining a conditional
use permit, including airports and heliports.
(Orange County Code, § 7-9-55.4(a)(1).)
More apropos to the issue at hand, the zoning ordinance anticipates
conditional use permits authorizing the property to be used principally for
commercial outdoor recreation (Orange County Zoning Code, § 7-9-55.4(a)(5)),
commercial stables (Orange County Zoning Code, § 7-9-55.4(a)(7)), and country clubs,
golf courses, riding clubs, tennis clubs (Orange County Zoning Code, §
7-9-55.4(a)(8)). Additionally, the
zoning ordinance has a catch-all provision and authorizes a conditional use
permit to use the property primarily for “[a]ny other use . . . permitted which
the Planning Commission . . . consistent with the purpose and intent of this
district per section 7-9-150.” (Orange
County Zoning Code, § 7-9-55.4.)href="#_ftn1" name="_ftnref1" title="">[1]



D. Silverado-Modjeska

The
Board of Supervisors adopted the Specific Plan in 1977 by resolution. The Specific Plan addresses eight
elements: land use, conservation,
safety, open space, circulation, scenic highway, noise, and housing. It also addresses “neighborhood commercial”
under the land use element, and does not address agricultural use of any land
within the geographical area covered by the plan. Neither does it address commercial uses other
than “neighborhood commercial.” The
“neighborhood commercial” segment of the Specific plan provides a general
prohibition: “Commercial facilities in
Silverado and Modjeska are limited to existing sites and shall not be allowed
in any residential category in this plan.”


The
Specific Plan states the canyon areas are primarily used for residential
purposes. In this rural area, housing
densities are limited in specified geographical sub-areas to specific maximums
of one dwelling unit “per 30, 20, 10, 4 and 2 acres.”



Tom
Smeezek, a resident of Silverado Canyon wrote the guidelines for the Specific
Plan. He said the primary purpose of the
plan was to “stop massive residential and commercial development in the
Canyon,” and not to eliminate or restrict establishment of small local
businesses. Smeezek said there were 20
commercial businesses in Silverado and Modjeska canyons when the plan was written,
including a shooting range, stables at the horse camp and Jackson Ranch,href="#_ftn2" name="_ftnref2" title="">[2] two gas stations, two bars, two auto repair shops, and two real
estate offices. Only one restaurant and
one market remain.



E. Appellants’ Contentions

Appellants contend issuance
of the conditional use permit was not consistent with the General Plan or the
Specific Plan. According to appellants,
the General Plan requires compliance with the Specific Plan, and the Specific
Plan prohibits commercial use in a residential area. Appellants also claim the county’s findings
were not adequate to demonstrate the condition use permit is consistent with
the general and specific plans, the county violated CEQA by failing to prepare
an environmental impact report, and the trial court erred in denying
appellants’ declaratory relief action as unripe.



F. CEQA

“Whether an activity is
regulated by CEQA is a question of law that may be decided on undisputed
facts. [Citation.]” (Sunset
Sky Ranch Pilots Assn. v. County of Sacramento (2009) 47 Cal.4th 902,
907.) “To achieve the objectives of
CEQA, the Legislature has mandated the preparation and consideration of an EIR
before any public agency approves a project that is not statutorily exempt
unless the lead public agency issues a negative declaration, i.e., a
declaration that the proposed project will not have a significant effect^[href="#_ftn3" name="_ftnref3" title="">^[3]] on the environment. [Citations.]”
(Friends of Sierra Madre v. City
of Sierra Madre (2001) 25 Cal.4th 165, 184, original fns. omitted.) Under CEQA, the public agency must conduct an
initial study to determine whether the project may have a significant effect on
the environment. “If the study shows
that the project will not have a significant effect, the agency may so declare
in a brief negative declaration; if it demonstrates that the project may have a
significant effect, the agency must prepare an environment impact report. [Citation.]”
(Fullerton Joint Union High School
Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 794, disapproved on
other grounds in Board of Supervisors v.
Local Agency Formation Com. (1992) 3 Cal.4th 903, 918.) On the other hand, in those instances when
the project is not exempt from CEQA, an EIR is required if the agency’s initial
study of the project “produces substantial evidence supporting a fair argument
the project may have significant adverse effects.” (Communities
for a Better Environment v. South Coast Air Quality Management Dist. (2010)
48 Cal.4th 310, 319.)

The county conducted an
initial study. The Department of Fish
and Game determined the project “has no potential effect on fish, wildlife and
habitat.” The Land Use Planning Division
of the county found no significant effect on the environment due to the
mitigation measures added to the project, as well as the conditions of
approval. This conclusion was reached
after a thorough consideration of the project’s effect on land use and
planning, agriculture, population and housing, geophysical, hydrology and
drainage, water quality, transportation/circulation, air quality, noise,
biological resources, aesthetics, cultural/scientific resources, recreation,
mineral resources, hazards, utilities and service systems, and public services.

Appellants contend an
EIR should have been prepared to evaluate the impact of significant noise from
the project. The initial study, however,
considered whether having special events on the property would increase the
existing noise level or expose people to noise levels above those permitted by
county standards. The report noted
Kearns’s property is zoned for general agriculture and the proposal is to use
the site to sell agricultural products, ancillary goods, and for social events
such as weddings and receptions. A noise
analysis was prepared. It found noise
from sources on the property “are much less than the outside recommended
residential noise compatibility criteria” level and determined the noise from
music equipment, loud speakers, and traffic entering and leaving the property
“will not cause a violation of the recommended compatibility threshold and
therefore considered to be less than significant.” Still, the noise issue was mitigated by
placing a curfew on the time by which special events must end and requiring all
operations on the property to comply with the county’s noise ordinance. The noise report also recommended speakers
and sound amplification be directed away from residences to the south of the
property. While compliance with a
regulatory standard does not automatically mean a project will not have a
significant impact on the environment (Protect
the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th
1099, 1108-1109), the county not only found no significant impact on the
environment, it also mitigated any remaining impact.

The evidence in the href="http://www.fearnotlaw.com/">administrative record supports the county
finding the project will not have “significant adverse effects” on the
environment. (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52
Cal.4th 155, 171.) Accordingly, we find
the county was not required to prepare an EIR before issuing the conditional
use permit in this matter.



G. The
County’s Findings

Appellants
claim the county failed to make the necessary findings to issue the conditional
use permit. Code of Civil Procedure
section 1094.5 governs administrative mandamus proceedings. Subdivision (b) of that section provides an
“[a]buse of discretion is established if the respondent has not proceeded in
the manner required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.” (Code of Civ. Proc., § 1094.5, subd.
(b).) In Topanga Assn. for a Scenic Community v. County of Los Angeles
(1974) 11 Cal.3d 506, the Supreme Court found “that implicit in section 1094.5
is a requirement that the agency which renders the challenged decision must set
forth findings to bridge the analytic gap between the raw evidence and ultimate
decision or order.” (>Id. at p. 515.)

The
ultimate decision reached by the Board of Supervisors was to issue the
conditional use permit. The decision was
based on the Board finding use of the property as a winery, permitting wine
tasting, the sale of incidental items, and holding up to 20 special events a
year on the property are “consistent with the objectives, policies, and general
land uses and programs specified in the General Plan,” as well as consistent
with the zoning law and any “specific plan regulations applicable to the
property,” and will “not result in conditions or circumstances contrary to the
public health and safety and the general welfare,” and the “proposed use will
not create unusual conditions or situations that may be incompatible with other
permitted uses in the vicinity.” While
the findings could have been more detailed and expressly referred to evidence
considered to explain the conclusions of the Board of Supervisors, it is
evident the Board considered the General Plan and the applicable zoning
ordinance, as well as the initial environmental study before making its
findings. We see no problem in
“discerning ‘the analytic route the [Board of Supervisors] traveled from
evidence to action.’ [Citations.]” (Environmental
Protection Information Center v. California Dept. of Forestry & Fire
Protection (2008) 44 Cal.4th 459, 517.)
Consequently, we find no prejudicial error. (Ibid.)







H. Issuance
of the Permit is Consistent with the General and Specific Plans.

Government
Code section 65300 requires all counties and cities to adopt a general plan for
the development of their land. (>Endangered Habitats League, Inc. v. County
of Orange, supra, 131 Cal. App.
4th at p. 782.) “The general plan has
been aptly described as the ‘constitution for all future developments’ within
the city or county. [Citations.] ‘[T]he propriety of virtually any local
decision affecting land use and development depends upon consistency with the
applicable general plan and its elements.’
[Citations.]” (>Citizens of Goleta Valley v. Board of
Supervisors (1990) 52 Cal.3d 553, 570-571.)

“[T]o
ensure the general plan’s authority as the fundamental ‘constitution’ for the
physical development of every city and county, the planning law provides that
all zoning regulations, subdivisions approvals and specific plans must be
consistent with the general plan.
[Citations.]” (>DeVita v. County of Napa (1995) 9
Cal.4th 763, 803.) “[Z]oning laws . . . regulate the geographic allocation and
permissible uses of land.
[Citation.]” (>United Outdoor Advertising Co. v. Business,
Transportation & Housing Agency (1988) 44 Cal.3d 242, 249.) Zoning represents “a considered, specific,
and lasting implementation of the broad statements of policy of the general
plan. [Citations.]” (Ibid.) Zoning ordinances are subordinate to the
general plan and must be consistent with it.
(Fonseca v. City of Gilroy
(2007) 148 Cal.App.4th 1174, 1182; Gov. Code, 65860.)

Kearns’s
property is zoned A1, General Agriculture, and has been so zoned for a number
decades. To the extent appellants argue
the Specific Plan does not permit Kearns’s property to be used for a commercial
purpose, that argument should have been made years ago when the county zoned
Kearns’s property A1, General Agriculture.
(Gov. Code, § 65009, subd. (c)(1)(B) [lawsuit challenging zoning
ordinance must be brought within 90 days of the legislative body’s decision].)



Orange
County has a general plan in place.
Although the General Plan covers a number of elements, including land
use, transportation, public services and facilities, resources, recreation,
noise, safety, housing, and growth management, only the land use and growth
management elements of the General Plan are included in the administrative
record. Appellants have thus forfeited
any argument the conditional use permit is inconsistent with an element of the
General Plan other than land use or growth management.

The
Specific Plan expressly recognizes it is “not a part of the Orange County
General Plan.” The Specific Plan was
adopted in 1977. Its purpose was to
“ensure the preservation of the rural environment and lifestyle of the area
while providing for reasonable development.”
The plan allows for further development, albeit at “significantly lower
densities.”

The
only reference in the General Plan to the Specific Plan is found in the growth
management element of the General Plan.
That statement, included under the subheading “Transition Areas for
Rural Communities” provides: “New
development within the Silverado-Modjeska Specific Plan and Foothill-Trabuco
Specific Plan planning areas shall be rural in character and shall comply with
the policies of these plans in order to maintain a buffer between urban
development and the Cleveland National Forest.”


The
growth management element has three goals: reducing traffic congestion, ensuring
adequate transportation and public facilities for residents, and protecting the
natural environment. The conditional use
permit does not impact any of these goals.
Because Kearns’s property has commercial stables on it, there is already
some traffic going to and from the property.
Permitting wine tasting on the property was found to not adversely
affect traffic. Further, on the days
special events with no more than 200 guests are to be held, the traffic will
not be significantly increased as the other commercial uses of the property
will not be open on those days, thereby reducing the impact on traffic. Permitting Kearns to open a winery at his
vineyard is not alleged to adversely affect public facilities for residents or
to harm the natural environment. As a
result, the decision to permit Kearns to have a winery on his property, which
already contains a vineyard, was consistent with the growth management element
of the General Plan.

The
conditional use permit did not authorize any new development in the canyon
area. No new residences were authorized
and the property already has a vineyard on it.
Rather, Kearns was granted permission to have a winery on his property,
which has a rural zoning of A1, General Agricultural. Unlike microbreweries, which may be found in
urban areas, a vineyard with a winery on the grounds is typically found in
rural areas, not urban settings. The
special events (including weddings and anniversary receptions) authorized to be
held on the property no more than 20 times a year do not change the rural
character of Kearns’s property. Indeed,
the advertisements for the special events stress the property’s country
setting.

We do
not find issuance of the use permit violated the Specific Plan either. As noted, that plan does not address
agriculture. That failure aside, the
purpose of the Specific Plan “was to ensure the preservation of the rural
environment and lifestyle of the area while providing for reasonable
development.” The conditional use permit
does not change the rural environment or lifestyle of the area. No new roads, residences, or businesses are
authorized by the permit. One piece of
property already containing a vineyard, zoned for agriculture, and approved for
a commercial purpose has been approved for a slightly wider use. It will, consistent with its agricultural
nature, be permitted to make wine on site.

Consistent
with its zoning and its rural setting, Kearns will now be permitted to make
wine, conduct wine tastings, sell the wine, snacks and related incidental
items, and hold up to 20 special events a year with no more than 200 guests per
event. Theses uses are consistent with
the Specific Plan’s stated purpose of preserving the rural environment and lifestyle. And although appellants argue the conditional
use permit runs afoul of the Specific Plan’s policy that neighborhood
commercial facilities are limited to sites that existed at the time the
Specific Plan was adopted in 1977, there is some
evidence Kearns’s property was one of those sites. Smeezek testified he drafted the guidelines
for the Specific Plan and one of the 20 businesses in the area when the
Specific Plan was prepared was the stables at Jackson Ranch. Kearns’s property is the “original historical
Jackson Ranch House site.”



I. Declaratory Relief

Appellants’ petition for
a writ of mandate contained a cause of action for declaratory relief, and
sought a declaration that the terms of the Specific Plan are mandatory and
apply to development within the area covered by the Specific Plan. The court denied relief, finding a contrary
decision would violate the separation of powers doctrine, the issue was not
ripe for decision, and “[t]he court cannot make a declaration pertaining to
future application of the Specific Plan to future unknown uses of land within
the Specific Plan area.”

“Any person interested
under a written instrument, excluding a will or a trust, or under a contract,
or who desires a declaration of his or her rights or duties with respect to
another, or in respect to, in, over or upon property, or with respect to the
location of the natural channel of a watercourse, may, in cases of actual
controversy relating to the legal rights and duties of the respective parties,
bring an original action or cross-complaint in the superior court for a
declaration of his or her rights and duties in the premises, including a
determination of any question of construction or validity arising under the
instrument or contract. He or she may
ask for a declaration of rights or duties, either alone or with other relief;
and the court may make a binding declaration of these rights or duties, whether
or not further relief is or could be claimed at the time. The declaration may be either affirmative or
negative in form and effect, and the declaration shall have the force of a
final judgment. The declaration may be
had before there has been any breach of the obligation in respect to which said
declaration is sought.” (Code of Civ.
Proc., § 1060.)

The statute’s
requirement of an “actual controversy relating to the rights and duties of the
respective parties” (Code of Civ. Proc., § 1060) is not satisfied by the mere
existence of the pending action. Were
the rule otherwise, it would be illusory and a plaintiff could make the
requisite showing by simply “pointing to the very lawsuit in which he or she
seeks that relief. Obviously, the
requirement cannot be met in such a bootstrapping manner; ‘a request for
declaratory relief will not create a cause of action that otherwise does not
exist.’ [Citations.]” (City
of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.)

The fact that a
plaintiff has made a sufficient showing to support the granting of declaratory
relief does not mean a trial court errs in denying relief. “The court may refuse to exercise the power
granted by this chapter in any case where its declaration or determination is
not necessary or proper at the time under all the circumstances.” (Code of Civ. Proc., § 1061.) Because the statutory scheme has built
discretion into it, “there are three possible classifications of actions
brought solely under the authority of [Code of Civil Procedure] section
1060: (1) actions that must be dismissed
by the trial court; (2) actions in which a declaratory adjudication is entirely
appropriate, and a trial court would therefore abuse its discretion under [Code
of Civil Procedure] section 1061 by dismissing the case; and (3) actions
wherein a trial court has discretion to provide declaratory relief under
section 1060, but also has discretion to dismiss the action under section
1061.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010)
191 Cal.App.4th 357, 365.) A court’s
decision to deny (or grant) declaratory relief will not be reversed on appeal
absent a clear showing the court abused its discretion. (Id.
at p. 364.)

“The general purposes of
declaratory relief inform the interpretation of sections 1060 and 1061. ‘“‘The purpose of a declaratory judgment is
to “serve some practical end in quieting or stabilizing an uncertain or
disputed jural relation.”’
[Citation.] ‘Another purpose is
to liquidate doubts with respect to uncertainties or controversies which might
otherwise result in subsequent litigation [citation].’ [Citation.]”
[Citation.] “‘One test of the
right to institute proceedings for declaratory judgment is the necessity of
present adjudication as a guide for plaintiff’s future conduct in order to
preserve his legal rights.’”’
[Citation.]” (>Osseous Technologies of America, Inc. v.
DiscoveryOrtho Partners LLC, supra,
191 Cal.App.4th at pp. 364-365.)

Thus, when the “actual
controversy” is for a future probable controversy, the future probable
controversy must be ripe: “‘the facts
have sufficiently congealed to permit an intelligent and useful decision to be
made.’ [Citation.]” (Environmental
Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th
877, 885.) We review de novo whether the
claim presents an “actual controversy,” as required by Code of Civil Procedure
section 1060. (Environmental Defense Project of Sierra County v. County of Sierra,
supra, 158 Cal.App.4th at p. 885.)

We find no actual
controversy present. Although appellants
argue the county did not find the Specific Plan requires compliance with its
terms in the present matter and has repeatedly taken that position >in this case, the county has amended the
specific plan on at least three prior occasions when it apparently found a
project would conflict with the specific plan.
As a result, we cannot say with any assurance the county’s position on
the effect of the specific plan presents an actual controversy in need of a
declaration of the rights of the respective parties. “The legal issues posed must be framed with
sufficient concreteness and immediacy so that the court can render a conclusive
and definitive judgment rather than a purely advisory opinion based on
hypothetical facts or speculative future events. [Citation.]”
(Teachers’ Retirement Bd. v.
Genest (2007) 154 Cal.App.4th 1012, 1040.)
“‘[T]here is no basis for declaratory relief where only past wrongs are
involved.’” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC,
supra, 191 Cal.App.4th at p.
366.) Accordingly, we find the trial
court did not abuse its discretion in denying appellants declaratory relief.

III

DISPOSITION

The judgment is
affirmed. Orange County and Kearns shall
recover their costs on appeal.







MOORE,
J.



WE CONCUR:







BEDSWORTH, ACTING P. J.







FYBEL, J.