Save Our Waterfront v. City of Monterey

Filed 7/17/08 Save Our Waterfront v. City of Monterey CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this appeal, Save Our Waterfront Committee challenges a judgment rejecting its petition for writ of mandate and validation complaint relating to the formation of a community services district by defendant City of Monterey. Appellant raises multiple issues related to the environmental impact of the alleged project. We conclude that we lack jurisdiction to address appellant's substantive contentions and must therefore dismiss the appeal as to the validation complaint. We further agree with the trial court's disposition of the mandamus petition and therefore must affirm the judgment as to that cause of action.

Background

Between 2000 and 2004 the City of Monterey (City) considered a proposal by Cannery Row Marketplace, LLC (CRM), to redevelop the City's Cannery Row area. Included in the plan, known as the Ocean View Plaza project, was the construction and operation of a desalination facility that would supply water to the project area. In June 2004 the City approved the project and certified the final Environmental Impact Report (EIR). The following month the City sought to create the Ocean View Community Services District (CSD), which would own and operate the desalination facility. Among those who submitted comments regarding the proposed plan was appellant, which expressed concern that the CSD might not be financially feasible, raised new land use questions, and urged preparation of a new EIR.

The Local Agency Formation Commission of Monterey County (LAFCO) conducted a public hearing in December 2005, after which it approved the formation of the CSD. A Certificate of Completion for the CSD was filed on December 28, 2005.

On February 6, 2006, appellant filed a Petition for Writ of Mandate, seeking to set aside the LAFCO resolution (Resolution No. 05-27) approving the CSD formation, and to enjoin the City and LAFCO from "proceeding with the formation of the [CSD]." Appellant asserted that the CSD had been approved "without legally adequate environmental assessment or review" as required by the California Environmental Quality Act (CEQA).

On April 4, 2006, appellant amended its petition. The first cause of action was identical to the original pleading, but appellant added a second claim under Code of Civil Procedure section 863, requesting an order setting aside approval of the CSD because its formation was "illegal and void and of no effect." Appellant named the City, its city council, and CRM as defendants.

CRM demurred to the first amended petition and complaint on a number of grounds, including appellant's failure to comply with the statutory validation procedures set forth in Government Code section 61006 and Code of Civil Procedure section 860, et seq. CRM pointed out that these provisions required appellant to file a validation action within 60 days after the CSD formation was complete. Accordingly, a validation action had to be filed by February 27, 2006, 60 days after the December 28, 2005 certificate of completion was recorded. Appellant's amended pleading adding the validation cause of action was filed April 4, 2006, more than a month after the deadline. Defendants also demurred and moved to strike both claims, similarly arguing that a validation action was the sole means of challenging the formation of the CSD and that the validation claim was untimely.

The court heard the matter in May 2006, and on August 4, 2006 it filed its order sustaining the demurrers to the first cause of action. Relying on Barratt American, Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, 705, the court ruled that " 'mandamus is unavailable to bypass the statutory remedy' of a validation action."

The matter proceeded to trial on the second cause of action. On December 8, 2006, the trial court entered judgment for defendants and CRM. The court determined that the formation of the CSD was not a project subject to CEQA, as it "[did] not result in any direct or indirect physical changes in the environment, nor a significant effect on the environment, because any potential impacts had already been analyzed and mitigated in the Ocean View Plaza EIR process. ([CEQA] Guidelines 15060(c)(3).)" Alternatively, the court found that the "common sense exemption" from CEQA applied here because there was no possibility that the formation of the district might have a significant effect on the environment beyond "what was already analyzed and mitigated in the Ocean View Plaza EIR process."

Discussion

After appellant filed its opening brief in this court, respondents moved to dismiss the appeal as untimely, citing Code of Civil Procedure section 870.[1] Appellant conceded in its reply brief that the appeal is untimely as to the second cause of action, but it maintains that the erroneous dismissal of the first cause of action for mandamus is an issue that must be addressed on the merits. According to appellant, we must determine whether the trial court properly concluded that CSD formation was "final and complete and subject to validation procedures." This court deferred the motion for consideration with the merits of the appeal.

Government Code section 61006, subdivision (a) states, "Any action to determine the validity of the organization of a district shall be brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure." The chapter to which this provision refers describes the procedures for validation proceedings brought by or directed at public agencies. Section 860 authorizes the agency to bring an action in superior court to determine the validity of a matter within 60 days of that matter's existence.[2] Section 863 provides that if the public agency has not brought a validation proceeding, "any interested person may bring an action within the time and in the court specified by Section 860 to determine the validity of such matter." Section 869 emphasizes the exclusive time constraints involved in the proceedings: "No contest except by the public agency or its officer or agent of any thing or matter under this chapter shall be made other than within the time and the manner herein specified."

Section 870 is relevant to respondents' motion to dismiss. It underscores the Legislature's concern with timely pursuit of disputes over validation proceedings. Subdivision (b) states: "Notwithstanding any other provision of law including, without limitation, Section 901 and any rule of court, no appeal shall be allowed from any judgment entered pursuant to this chapter unless a notice of appeal is filed within 30 days after the notice of entry of the judgment, or, within 30 days after the entry of the judgment if there is no answering party. If there is no answering party, only issues related to the jurisdiction of the court to enter a judgment in the action pursuant to this chapter may be raised on appeal." If such an appeal is not taken within the 30-day limit, the judgment becomes "forever binding and conclusive, as to all matters therein adjudicated or which at that time could have been adjudicated, against the agency and against all other persons, and the judgment shall permanently enjoin the institution by any person of any action or proceeding raising any issue as to which the judgment is binding and conclusive." ( 870, subd.(a); cf. Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 846-847 [validation matters must be raised within the statutory limitations period or they are waived].)

In amending its complaint to add the second cause of action, appellant implicitly recognized that it was challenging the validity of the CSD, an act requiring compliance with Chapter 9 of the Code of Civil Procedure. The first cause of action did not set forth the substance of any different claim; instead, it repeated the language of the previous complaint and thus amounted to an alternative wording of appellant's challenge to the validity of the formation of the CSD. Even if, as appellant asserts in its response to the motion, the amendment was only a "safeguard" derived from appellant's "uncertainty whether the proceeding before LAFCO [had been] actually completed," the essence of both causes of action was that the formation of the CSD, as adopted by Resolution 05-27, was invalid. Accordingly, judicial review is limited.

Not About Water Committee v. Board of Sup'rs (2002) 95 Cal.App.4th 982 is instructive. There, the appellant's challenge, although pleaded as a mandamus proceeding, was to the formation of a public improvement district, thereby requiring legal challenges to "be heard in a single, exclusive form of action, the validation proceeding." (Id. at p. 986, see also Dawson v. Town of Los Altos Hills (1976) 16 Cal.3d 676, 682 [as object of action was a declaration that sewer assessment district was "without legal existence," action was therefore an " 'action or proceeding' contesting 'the validity of an assessment' " subject to statutory procedures].)

To the extent that appellate review of the judgment is warranted on the merits, it is confined to the demurrer ruling, that writ relief was not available where a validation action could have been brought. In sustaining the demurrer to the first cause of action the trial court cited Barratt American, Inc.v. City of Rancho Cucamonga (2005) 37 Cal.4th 685. In that case, the plaintiff complained that the city's reduction of building inspection fees was inadequate. The plaintiff sought, inter alia, a writ of mandate compelling a reduction of future fees and the invalidation of the most recent city resolution. The Supreme Court held that a writ of mandate was unavailable for time-barred claims regarding earlier resolutions because an adequate legal remedy already existednamely, a validation action. Plaintiff had not filed such an action in a timely manner; consequently, his challenge was not cognizable. "Where the Legislature has provided for a validation action to review government actions, mandamus is unavailable to bypass the statutory remedy after the limitations period has expired." (Id. at p. 705.) As to the recent, timely claim, "a parallel mandate action would be unnecessary and inappropriate. (See Code Civ. Proc., 1086 [writ of mandate must be issued where there is not a plain, speedy, and adequate remedy in the ordinary course of law].)" (Ibid.)

In reaching this result, the Supreme Court cited Hills for Everyone v. Local Agency Formation Commission of Orange County (1980) 105 Cal.App.3d 461. There, in the context of municipal annexation of unincorporated territory, the appellate court underscored the "important policy considerations" at the root of statutes requiring adherence to the validation procedures: "A uniform procedure for prompt resolution of the validity of a completed annexation by an in rem action is necessary in order to settle any questions respecting the city's jurisdiction over the annexed territory, including any uncertainties respecting the applicable land use regulations, or the city's responsibility to provide police, fire and other municipal services to the area. The procedure prescribed by the validating statute assures due process notice to all interested persons and settles the validity of the annexation once and for all by a single lawsuit." (Id. at pp. 467-468; see Moorpark Unified School Dist. v. Superior Court (1990) 223 Cal.App.3d 954, 960 ["purpose of the validation statutes is to provide a simple and uniform method for testing the validity of government action."]; see also Embarcadero Municipal Improvement Dist. v. County of Santa Barbara (2001) 88 Cal.App.4th 781, 790 [60-day limitations period furthers "important policy of speedy determination of the public agency's action"].) "The validating statutes should be construed so as to uphold their purpose, i.e., 'the acting agency's need to settle promptly all questions about the validity of its action.' " (Friedland v. City of Long Beach, supra, 62 Cal.App.4th at pp. 842; accord, McLeod v. Vista Unified School Dist. (2008) 158 Cal.App.4th 1156, 1166.)

Appellant seeks to avoid the exclusive and dispositive provisions of sections 860-870 by contending that the formation of the district was not yet complete. In other words, this court must, they believe, consider the assertion that the CSD was "incomplete and lacking requisite information and studies" and thus determine whether the validation statutes were indeed applicable, as the trial court found.

We disagree with appellant's premise. The recording of the certificate of completion confirmed the final formation of the CSD.[3] If that formation was in fact erroneously completed (because defendants "cut short the LAFCO process"), then the CSD was invalid and appellant would be entitled to a judgment in its favor. But this issue had to be resolved in a validation proceeding, for which compliance with specific statutory procedures is required. To decide otherwise would sanction an end run around the threshold issue of justiciability, by permitting a litigant to express belated discontent with an act governed by Chapter 9, the validation statutes. Here, it appears that appellant is contesting the formation of the CSD primarily because the act was based on insufficient "information and studies," rather than an assertion that the act of formation was never completed in fact. Appellant's argument that there was no Municipal Studies Review, no adoption of a sphere of influence, no survey of the boundaries and no financial feasibility analysis implies that formation of the CSD was complete, but only through error or misconduct. Such an attack on the validity of the CSD had to be presented through a validating proceeding under Chapter 9. Because appellant's contention depends on the asserted incompleteness of the CSD formation, the viability of the first cause of action falls with its premise.

In short, because appellant's lawsuit was directed at the inadequacy of the actions and procedures leading to LAFCO's resolution and the complete formation of the CSD, the pleading invoked the statutory procedures governing validation actions. Unquestionably, the exclusive procedures of Chapter 9 are applicable not only to the maintenance of appellant's action in the trial court, but to the pursuit of judicial review on appeal. Compliance with those procedures includes the 30-day limitations period in which to appeal a validating judgment.

This appeal is not saved by the holding of Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, on which appellant relies. In Kaatz, the defendant real estate developer successfully moved for dismissal on the ground that the plaintiff had not sued under the validation statutes within 60 days. The plaintiff in fact had not brought a validation action at all. This court held that the plaintiff's notice of appeal was timely filed within 60 days of the judgment "because the appeal is not challenging a 'judgment entered pursuant to' the validation statutes." (Id. at p. 19.) Here, by contrast, appellant filed its amended complaint pursuant to section 863, thus invoking the "reverse validation" provisions of Chapter 9. The first cause of action, as we have already determined, did not add any substantive basis for a decision that took it outside the reach of the validation statutes. Both causes of action sought the same reliefinvalidation of the act creating the CSD. In any event, having reviewed the demurrer to the first cause of action, we have determined that the trial court's ruling reflected the law defining the scope of the statutory validation procedures. That ruling therefore must be upheld.

Conclusion

The trial court correctly determined that the request for a writ of mandamus in the amended petition was improper. As to the validation cause of action, appellant's failure to file its appeal within 30 days of the judgment rendered that judgment "forever binding and conclusive, as to all matters therein adjudicated," thereby precluding appellate review. ( 870.) We are therefore without jurisdiction to review the trial court's ruling on the CEQA challenge in the second cause of action.

Disposition

The appeal is dismissed as untimely with respect to the second cause of action. As to the first cause of action, the judgment is affirmed. Appellant's request for judicial notice is denied. Respondents are entitled to their appellate costs.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] All further statutory references are to the Code of Civil Procedure unless otherwise stated.

[2] Section 860 states: "A public agency may upon the existence of any matter which under any other law is authorized to be determined pursuant to this chapter, and for 60 days thereafter, bring an action in the superior court of the county in which the principal office of the public agency is located to determine the validity of such matter. The action shall be in the nature of a proceeding in rem."

[3] To the extent that appellant relies on conditional language in Resolution 05-27 to assert incomplete formation of the CSD, we disagree. It was not the formation of the CSD itself but its boundary that was conditioned on the county surveyor's approval and adoption of a sphere of influence.