J.F. Shea Construction, Inc. v. County of Siskiyou, C062117 (Cal. App. 2/9/2010)

• Decision Date: 09 February 2010
• Docket Number: C062117.
• Court: California Court of Appeals Court of Appeals
• Parties: J.F. SHEA CONSTRUCTION, INC. et al., Plaintiffs and Appellants, v. COUNTY OF SISKIYOU et al., Defendants and Respondents; EAGLE PEAK ROCK & PAVING, INC., Real Party in Interest and Respondent.

Page 1

J.F. SHEA CONSTRUCTION, INC. et al., Plaintiffs and Appellants, v. COUNTY OF SISKIYOU et al., Defendants and Respondents EAGLE PEAK ROCK & PAVING, INC., Real Party in Interest and Respondent.

C062117.

Court of Appeals of California, Third Appellate District, Siskiyou.

February 9, 2010.

Appeal from the Super. Ct. No. SCCVPT081178.

Not to be Published

CANTIL-SAKAUYE, J.

J.F. Shea Construction, Inc., a contracting and construction materials business (Shea), and Mount Shasta Tomorrow, a nonprofit environmental organization (Mount Shasta), filed a petition for writ of mandate and a complaint for declaratory relief against the County of Siskiyou and Siskiyou County Board of Supervisors (together the County). Shea and Mount Shasta alleged the County's approval of the application of Eagle Peak Rock & Paving, Inc. (Eagle Peak) for a conditional use permit for a temporary portable asphalt batch plant violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), and conflicted with a section of the County's Zoning Code. Contending the action was moot, the County and Eagle Peak filed motions to dismiss the case. The trial court granted the motions to dismiss based on mootness and on a finding that Shea and Mount Shasta lacked standing to bring the action. Shea and Mount Shasta appeal the ensuing judgment of dismissal. Since dismissal was proper based on mootness, we need not address standing.¹ We shall affirm the judgment.

BACKGROUND

Siskiyou County Code section 10-6.1502, subdivision (i), authorizes the County's issuance of a conditional use permit for "[t]emporary portable asphalt and/or concrete batch plants incidental and accessory to an off-site public construction project, with one mile radius notification requirement, not to exceed the life of the construction project, with one year review, not to exceed two (2) years." (Hereafter § 10-6.1502(i).)

Eagle Peak obtained two use permits; the second permit is the subject of this appeal. In February 2008, the County approved a mitigated negative declaration and use permit (UP-07-11) allowing Eagle Peak to install and operate a temporary portable asphalt batch plant at a gravel quarry for a road construction project scheduled to take place in the summer of 2008 on Trinity Mountain Road.

In March 2008, Eagle Peak applied for amendment of its use permit to allow the use of the batch plant at the quarry for its summer 2008 construction work on a county road project known as the Old Highway 99 project and several other projects. The Siskiyou County Planning Commission approved the application as a separate use permit (UP-08-07) solely for Eagle Peak's estimated 25 days of work on the Old Highway 99 project and approved an associated mitigated negative declaration. Shea appealed the Planning Commission's approval of UP-08-07 and the mitigated negative declaration to the County Board of Supervisors. The Board of Supervisors denied the appeal in July 2008.

In August 2008, Shea and Mount Shasta (together petitioners) filed this action alleging two causes of action. In their first cause of action, petitioners allege the County violated CEQA in approving the mitigated negative declaration and use permit UP-08-07. In their second cause of action for declaratory relief, petitioners alleged an actual and present controversy existed between the parties regarding the interpretation of the County's zoning code. Specifically, petitioners contended the County could not approve Eagle Peak's use permit (UP-08-07) because it conflicted with section 10-6.1502(i) in not being located "proximate" to the Old Highway 99 project. Petitioners also alleged the County's staff believed an applicant could apply for and potentially obtain a series of separate use permits under section 10-6.1502(i) that would allow the applicant to operate a temporary batch plant at a single site for a full construction season. Petitioners asserted this would, in effect, amount to the approval of a de facto permanent regional batch plant in violation of state and county law.

In January 2009, the County filed a motion to dismiss the action on the ground that the issues were moot. The County supported its motion with the declaration of Terry Barber, the Director of Public Health and Community Development for Siskiyou County, the declaration of Scott Waite, the Engineering and Land Development Manager in the Public Works Department of Siskiyou County, and a request for judicial notice of several sections of the County's zoning code.

As relevant to resolution of this appeal and the two use permits, Barber declared: the work by Eagle Peak on the Trinity Mountain Road project and the Old Highway 99 project had been completed; Eagle Peak's rights to operate a temporary asphalt batch plant at the Richard Moore Gravel quarry under UP-07-11 and UP-08-07 had terminated; Eagle Peak was required to remove the temporary batch plant from the quarry; Eagle Peak did not then or in the future have any right to operate a temporary batch plant under the use permits; there were no use permits issued in the county under section 10-6.1502(i) that had not terminated; and there were currently no applications pending for a use permit under section 10-6.1502(i).

In support of the County's motion to dismiss, Waite declared: the work by Eagle Peak on the Old Highway 99 project was completed by October 9, 2008; the County recorded a notice of completion of the project on October 22, 2008; and he had inspected the gravel quarry on January 5, 2009, and at that time the temporary asphalt batch plant installed at the quarry pursuant to UP-07-11 and UP-08-07 had been removed with the exception of a single trailer that could not be operated as a batch plant. All activity permitted pursuant to UP-07-11 and UP-08-07 had been terminated.

Eagle Peak also filed a motion to dismiss based on mootness. Eagle Peak supported its motion with a declaration by its president, Tony Cruse. As relevant to this appeal, Cruse declared: Eagle Peak's operation of the temporary asphalt batch plant under UP-07-11 began on June 26, 2008, and finished on July 11, 2008; and work under UP-08-07 began on August 14, 2008, and finished on September 16, 2008. He considered both use permits to have expired on September 16, 2008. He acknowledged Eagle Peak had no claim to any further rights under the permits.

Petitioners opposed the motions to dismiss. Petitioners contended the action was not moot, but asked the court to exercise its discretion to consider the issues even if it found the action moot because the issues involved matters of continuing public interest that are likely to recur. Petitioners submitted no opposing declarations or other evidence.

The trial court granted both motions to dismiss and entered a judgment of dismissal.

DISCUSSION

I. The First Cause Of Action For Violations Of CEQA Is Moot

An action is moot if it is impossible for the court to grant any effectual relief. (Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 641; Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 391-392; Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 377-379.)

The relief contemplated in a CEQA action is described in Public Resources Code section 21168.9 (section 21168.9) as follows: "(a) If a court finds, . . ., that any determination, finding, or decision of a public agency has been made without compliance with this division, the court shall enter an order that includes one or more of the following:

(1) A mandate that the determination, finding, or decision be voided by the public agency, in whole or in part.

(2) If the court finds that a specific project activity or activities will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project, a mandate that the public agency and any real parties in interest suspend any or all specific project activity or activities, pursuant to the determination, finding, or decision, that could result in an adverse change or alteration to the physical environment, until the public agency has taken any actions that may be necessary to bring the determination, finding, or decision into compliance with this division.

(3) A mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division." (Italics added.)

Petitioners' CEQA cause of action challenges only the County's issuance of UP-08-07. It is undisputed the road construction projects serviced by the temporary asphalt batch plant permitted by UP-08-07 (and indeed UP-07-11) have been completed. The batch plant was installed, operated, and most importantly—as of January 2009—removed. There is no activity to suspend, no possible mitigation measures that can be imposed, or no further public agency action that can be taken with respect to the CEQA review of this temporary asphalt batch plant. (§ 21168.9, subd. (a)(2) & (3); cf. Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1203-1204 [City could reject shopping center(s), require additional mitigation, modification, or removal]; Association for a Cleaner Environment v. Yosemite Community College Dist., supra, 116 Cal.App.4th at p. 641 [mitigation measures possible—relocation of shooting range]; Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 889 [modification or removal of car wash project possible].)

Petitioners argue, however, that their cause of action for violations of CEQA is not moot because a court could "issue a writ of mandate requiring the County to void the Initial Study/Mitigated Negative Declaration it relied on for this project so that the County cannot tier from the document or use it for any future approval." (See § 21168.9, subd. (a)(1).)

Public Resources Code section...