Vichy Springs Resort, Inc. v. City of Ukiah

319 Cal.Rptr.3d 865

VICHY SPRINGS RESORT, INC., Plaintiff and Appellant,

v.CITY OF UKIAH et al., Defendants and Respondents;

Ukiah Rifle and Pistol Club, Inc., Real Party in Interest.

A165345

A167000

Court of Appeal, First District, Division 4.

Filed March 29, 2024

Certified for Partial Publication.^*

Trial Court: Mendocino County Superior Court, Trial Judge: Honorable Ann C. Moorman (Mendocino County Super. Ct. No. SCUK-CVPT 18-70200)

Counsel for Plaintiff and Appellant: BARTKIEWICZ, KRONICK & SHANAHAN, Jennifer T. Buckman and Kristin B. Peer

Counsel for Defendant and Respondent City of Ukiah: David J. Rapport, City Attorney

Counsel for Defendant and Respondent County of Mendocino: Christian M. Curtis, County Counsel, and Brina A. Blanton, Deputy County Counsel

Counsel for Real Party in Interest: CANNATA, O’TOOLE & OLSON, Therese Y. Cannata, Michael Ching, Vincent Lee; LAW OFFICE OF DAVID M. KINDOPP and David M. Kindopp

GOLDMAN, J.

Real Party in Interest Ukiah Rifle and Pistol Club, Inc. (Club) operates a shooting range on land it leases from the City of Ukiah (City). The property, although owned by the City, is located in an unincorporated area of Mendocino County (County). Half a mile from the Club lies Vichy Springs Resort, Inc. (Vichy), a mineral springs resort and spa. Faced with uncertainty about whether or to what extent the City or the County has regulatory authority over the Club’s activities, Vichy sued both entities regarding the Club’s planned demolition of its existing main shooting range and construction of a new range (Project), which Vichy contended would have significant environmental impacts such as lead contamination and increased noise and traffic. While the case was pending in the trial court, the Club completed the Project—Vichy did not ask the court to enjoin it—and the City and the County entered into an Agreement for Shared Exercise of Land Use and California Building Code Authority under the Joint Exercise of Powers Act, Government Code sections 6500 et seq, (the Joint Powers Agreement or Agreement) with respect to the Club’s activities. Ultimately, after several rounds of motions, the trial court entered judgment in favor of the City and the County on Vichy’s Second Amended Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief (Petition). The trial court then denied Vichy’s motion for attorneys’ fees under Code of Civil Procedure section 1021.5, rejecting Vichy’s argument that the lawsuit was the "catalyst" for the establishment of the Joint Powers Agreement.

On appeal, Vichy contends the trial court erred by (1) sustaining without leave to amend demurrers to the causes of action alleging that the City and the County failed to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.; future undesignated statutory references are to this code) and their respective General Plans and local ordinances; (2) granting the Club’s motion to strike allegations related to its lease with the City; and (3) granting the City’s and the County’s motion for judgment on the pleadings on Vichy’s claim for declaratory relief on the ground that it was mooted by the Joint Powers Agreement. Vichy also contends the court erred in denying its motion for attorneys’ fees.

We find no error insofar as the trial court sustained the demurrer to the second and third causes of action against the City (for alleged violations of local law in issuing a building permit), and insofar as it found that the claim for declaratory relief was moot. We conclude, however, that the trial court erred in granting the motion to strike, and that the Petition sufficiently alleges that both the City and the County violated CEQA and the County abused its discretion in determining it had no regulatory authority over the Club’s Project. Accordingly, we reverse the judgment and remand for further proceedings. In light of our reversal of the judgment, we will dismiss Vichy’s appeal of the order denying the motion for attorneys’ fees.

BACKGROUND

In January 2018, Vichy sued to (1) set aside the building permit issued by the City in December 2017 authorizing the demolition of the Club’s existing main shooting range and construction of a new range, and (2) enjoin operation of all unauthorized and improperly authorized activity at the Club until the City and the County have properly exercised their regulatory authority over the Club’s use of the property and issued the necessary permits. The petition described the Project as follows: "In order to accommodate the increase in use, the Gun Club is undertaking to demolish the main range and rebuild with a different and modern structure." The petition also detailed an alleged "pattern and practice of failing to regulate" the Club by both the City and the County, and sought a declaration that the property is subject to land use regulation by both entities.

As amended, the Petition alleges that the County erroneously determined that the City’s ownership of the property rendered the Club’s activities immune from the County’s regulatory authority under Government Code sections 53090 and 53091, which (as relevant here) exempt cities from a county’s building and zoning ordinances.¹ According to the Petition, the Club’s use of the property is for a private purpose, and the City’s immunity from County regulation does not extend to city- owned property located outside its territorial jurisdiction that is leased to a private entity for a private purpose. With respect to the City, the Petition alleges that it has no statutory authority to regulate uses of property outside of its jurisdiction, but that the City’s lease with the Club enables it to condition any improvements the Club wishes to make on compliance with the City’s and the County’s local plans and ordinances. It also alleges that the City accepts the County’s position that the County’s General Plan and zoning and building codes do not apply to the Club’s activities, and that the City therefore does not require the Club to comply with the County’s laws.

The first cause of action alleges CEQA violations by the County and the City. According to the Petition, the County violated CEQA by erroneously determining that it had no regulatory responsibility for the Project and, as a result of that determination, allowing it to proceed without review or interruption. It alleges that the City’s violations consisted in issuing a building permit outside of its jurisdiction, improperly determining that the Project was not subject to CEQA, and failing to require the Club to obtain approvals, including a building permit and use permit, from the County.

The second cause of action alleges that the County violated section 20.204.015(B) of its zoning code, which Vichy contends prohibited the Club from resuming its non-conforming use after demolishing the main range, by refusing to take any action against the Project, and by improperly allowing the City to issue a building permit and certificate of occupancy in the County’s jurisdiction. It alleges that the City violated the Ukiah City Code by issuing a building permit and certificate of occupancy outside of its jurisdiction.

The third cause of action alleges that the City unlawfully failed to consider the City’s and the County’s general plan policies when it issued a building permit to the Club.

Under the first three causes of action, the Petition seeks a writ of mandate directing the City to set aside the building permits and both the City and the County to comply with CEQA and their respective local laws, and an injunction prohibiting the continued use of the Club property until all necessary review has been conducted and required permits have been issued.

Finally, the fourth cause of action seeks a declaration that the Club is subject to land use regulation by the County and the City.

While the action was pending, and in response to a 2014 request by the County, the Attorney General issued Opinion 14-403, clarifying that "a city’s private lessee is exempt under [Government Code] section 53090, provided that the lessee’s use of the property primarily serves the city’s public purposes, but that it is not exempt where the lessee’s use of the property primarily serves the lessee’s private interests." (80 Ops. Cal. Atty. Gen. 88 (2018).) The opinion is therefore consistent with the Petition’s contention that a private lessee who uses city-owned property for a private purpose does not receive intergovernmental immunity, although it does not decide whether the Club is using the property primarily for a private purpose, as the Petition alleges.

In May 2021, the County demurred to the first and second causes of action. It argued that the first cause of action failed to state a claim against the County for violation of CEQA because there was no "project" subject to CEQA when Vichy was complaining solely of the County’s failure to act. It argued that the second cause of action failed because a writ of mandate does not lie to compel the County to take specific action to enforce its zoning laws. The Club, joined by the City, filed a demurrer to the first, second, and third causes of action, arguing that they were all mooted by the Project’s completion. The Club also filed a motion to strike various allegations from the Petition, in which the City likewise joined. The Court sustained the demurrers without leave to amend, and granted the motion to strike.²

The City and the County later entered into the Joint Powers Agreement. They agreed that (1) "the County shall exercise land use jurisdiction over the Gun Club’s use of the Gun Club Property in accordance with the County’s duly adopted zoning ordinance as it currently reads in Title 20 of the Mendocino County Code or as it may be amended or superseded in the future"; (2) "[t]he City rather than the County shall continue to assure that any improvements constructed on the Gun Club Property comply with the procedures and...