Cedar Fair, L.P. v. City of Santa Clara

• Court: California Court of Appeals
• Writing for the Court: ELIA
• Citation: Cedar Fair, L.P. v. City of Santa Clara, 194 Cal.App.4th 1150, 123 Cal.Rptr.3d 667, 11 Cal. Daily Op. Serv. 5081, 2011 Daily Journal D.A.R. 6048 (Cal. App. 2011)
• Decision Date: 06 April 2011
• Docket Number: No. H035619.,H035619.
• Parties: CEDAR FAIR, L.P., Plaintiff and Appellant, v. CITY OF SANTA CLARA, et al., Defendants and Respondents.

194 Cal.App.4th 1150

123 Cal.Rptr.3d 667

11 Cal. Daily Op. Serv. 5081

2011 Daily Journal D.A.R. 6048

CEDAR FAIR, L.P., Plaintiff and Appellant,

v.CITY OF SANTA CLARA, et al., Defendants and Respondents.

No. H035619.

Court of Appeal, Sixth District, California.

April 6, 2011.

Hoge, Fenton, Jones & Appel, San Jose, Sean A. Cottle and John Ashley Hickey, for Appellant.

Goldfarb & Lipman, Oakland, Karen M. Tiedemann, Juliet E. Cox, for Respondents City of Santa Clara and Redevelopment Agency.

Coblentz Patch Duffy & Bass, San Francisco, Jonathan R. Bass, for Respondent Forty Niners Stadium, LLC.

ELIA, J.

Cedar Fair L.P., the owner and operator of the Great America amusement park located in Santa Clara (“Cedar Fair”), appeals from the judgment of dismissal that followed the court's order sustaining a demurrer without leave to amend to its petition for writ of mandate. Cedar Fair sought to compel the City of Santa Clara (“City”) and the City's Redevelopment Agency (“Redevelopment Agency”) to vacate their approvals of the “Stadium Term Sheet,” which “set[ ] forth basic terms of a proposed transaction to develop a stadium ... located in the City of Santa Clara that would be the home field of the San Francisco 49ers NFL franchise.” According to the petition, “[t]he proposed stadium has a footprint of approximately 14 acres and the 49ers propose to locate the stadium on a 17–acre parcel that is subject to a long-term lease between the [Redevelopment] Agency (as landlord) and Cedar Fair (as tenant). Cedar Fair has three 10–year options remaining on the lease and currently uses this parcel site to provide parking for visitors to Great America and for special events.” Cedar Fair alleged that the term sheet approvals had to be set aside because no environmental impact report (EIR) had been prepared pursuant to the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq.) prior to the governmental approvals of the term sheet.¹ The trial court assumed, without deciding, that the petition for writ of mandate was timely filed but then determined that the term sheet did not constitute a project or a project approval and, therefore, preparation of an EIR was not required.

We affirm.

A. Procedural History

On December 7, 2009, Cedar Fair filed a verified petition for writ of mandate seeking, among other things, to compel the City and Redevelopment Agency to set aside their approvals of the Stadium Term Sheet. The petition alleged that the City Council, acting for the City and in its capacity as the legislative body of the Redevelopment Agency, approved the term sheet on June 2, 2009 and these approvals became final when the City Council declined to reconsider the action at its next regular meeting on June 9, 2009. The petition recites certain statements contained in the May 29, 2009 City Council agenda report regarding the background of the proposed stadium project and the purpose of the term sheet. It alleges that subsequent statements by City Council members and City officers, representatives or staff, establish that respondents regarded the term sheet, notwithstanding its conditional language, as a binding commitment to the project and their approvals of the term sheet effectively precluded meaningful consideration of the stadium project's environmental impacts and potential alternatives.

The real party in interest, Forty Niners Stadium, LLC, (“49ers Stadium Company”) demurred to the petition on the grounds that it failed to state a cause of action (§ 430.10, subd. (e)) and that it was time barred (§ 21167, subd. (a)). 49ers Stadium Company requested the court to take judicial notice of the Stadium Term Sheet dated June 2, 2009. The City and Redevelopment Agency also demurred to the petition on the same grounds.

Petitioner initially requested the court take judicial notice of Santa Clara City Council (“City Council”) Resolution Numbers 10–7700 and 10–7701, both passed on March 9, 2010, the July 6, 2009 Agenda Report, Policy 042 of the City's Policy and Procedure Manual, and the City Council's and the Redevelopment Agency's June 2, 2009 and June 9, 2009 agendas. Petitioner also requested that the court take judicial notice of the draft minutes of City Council's June 9, 2009 meeting and the summary of City Council actions taken at that meeting.

The June 2, 2009 and June 9, 2009 agendas stated in capital letters, before the list of agenda items: “Appeal of hearing decisions of the City Council must be made to the Superior Court within 90 calendar days of final action. Because of the agenda provision for reconsideration, final action is deemed to occur at the end of the next regular meeting pursuant to City Council Policy (P & P 042). (Code of Civil Procedure section 1094.6.)” Policy 042 set forth the applicable procedure to obtain reconsideration of council action.

The June 2, 2009 Agenda for a special meeting of the joint City Council and Redevelopment Agency “Committee of the Whole” set forth the “term sheet” item of business and listed the requested actions: “a. Approve the Term Sheet between the City of Santa Clara, the Redevelopment Agency and the 49ers Stadium Company, LLC for the construction and operation of an NFL stadium and authorize the City Manager/Executive Director to execute the Term Sheet. [¶] b. Direct the City Manager/Executive Director to return to the June 23, 2009 City Council/Redevelopment Agency meeting with: [¶] 1) a report for City Council action to proceed with process of creating a Charter Review Committee; [¶] 2) an information report detailing the calendar of events necessary to have a Term Sheet ballot measure ready for a Spring 2010 election; [¶] c. Direct the City Manager/Executive Director to return to the July 14, 2009 City Council/Redevelopment Agency meeting with: [¶] 1) a presentation by the San Francisco 49ers on the design of the proposed stadium; [¶] 2) a report for City Council/Redevelopment Agency action to amend the existing Negotiating Agreement between the City of Santa Clara, the Redevelopment Agency and the 49ers Stadium Company, LLC in order to proceed with the next phase of the proposed stadium project, which is negotiation of the Disposition and Development Agreement; and [¶] 3) a proposed consultant budget for continuing staff support for the next phase of the stadium project.” The June 9, 2009 agendas state as unfinished business: “Possible Reconsideration of Actions Taken at Immediately Preceding Meeting.” The draft minutes of City Council's June 9, 2009 meeting and the summary of its actions at that meeting showed that the City Council took no action on a request that the council reconsider its June 2, 2009 approval of the term sheet.

The July 6, 2009 Agenda Report from the Assistant Manager, prepared for a July 14, 2009 meeting, concerned a proposed second amendment to the Negotiating Agreement between the City, the Redevelopment Agency, the San Francisco Forty Niners, LLC, and the 49ers Stadium Company. The report indicates that the Negotiating Agreement was approved by respondents on February 12, 2008 and then extended by amendment on June 17, 2008. The report recommended that respondents approve the second proposed amendment extending the Negotiating Agreement to June 30, 2010. The report indicated that staff was working on the EIR for the proposed stadium project while negotiations to reach a Disposition and Development Agreement (DDA) went forward. It stated: “The stadium project will not proceed unless and until the parties have negotiated, executed, and delivered mutually acceptable agreements based upon information produced from the CEQA environmental review process and from other public review and hearing processes, and subject to all applicable government approvals.” The report also explained that “[a]mending the Negotiating Agreement still provides Council with an ‘off ramp’ to exit the stadium project if, at the end of the amended [negotiating] period, a DDA and associated documents cannot be negotiated between the City and the 49ers.”

One of the March 9, 2010 resolutions, which included a recital that the City Council had certified the Final EIR for the stadium project on December 8, 2009, adopted extensive CEQA findings concerning significant impacts, mitigation measures and alternatives and a Statement of Overriding Considerations for the approval of general plan amendments relating to the stadium project. The other March 9, 2010 resolution approved the adoption of a general plan amendment amending the text of the tourist commercial designation of the land use element of the City's general plan.

In addition, Cedar Fair requested the court to take judicial notice of its separate writ petition challenging the EIR prepared for the proposed stadium project.

The court heard argument on April 30, 2010 and the matter was submitted for decision. In an order filed May 3, 2010, the court granted all requests for judicial notice. It then sustained the demurrer without leave to amend on the ground the petition failed to state sufficient facts to constitute a cause of action. It explained: “Having examined the judicially noticed ‘Term Sheet’ entered into between Respondents and Real Party the Court concludes that it is not a ‘project’ or a ‘project approval’ for CEQA purposes, and therefore its formation and/or approval by Respondents prior to the preparation of an EIR was not a CEQA violation. As this is the sole basis for the CEQA violation alleged in the Writ Petition ... the claims fails to state sufficient facts.”

A judgment of dismissal was filed May 18, 2010. Cedar Fair appeals.

B. Standard of Review

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ ( Serrano v....