Lake Norconian Club Found. v. Dep't of Corr. & Rehab.

• Decision Date: 13 September 2019
• Docket Number: A154917
• Citation: 252 Cal.Rptr.3d 394,39 Cal.App.5th 1044
• Court: California Court of Appeals Court of Appeals
• Parties: The LAKE NORCONIAN CLUB FOUNDATION, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Appellant, City of Norco, Real Party in Interest.

39 Cal.App.5th 1044

252 Cal.Rptr.3d 394

The LAKE NORCONIAN CLUB FOUNDATION, Plaintiff and Appellant,

v.DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Appellant,City of Norco, Real Party in Interest.

A154917

Court of Appeal, First District, Division 4, California.

Filed September 13, 2019

Counsel for plaintiff and appellant: Susan Brandt-Hawley, Glen Ellen.

Counsel for defendant and appellant: Xavier Becerra, Attorney General, Daniel A. Olivas, Senior Assistant Attorney General, David G. Alderson, Supervising Deputy Attorney General, Tara L. Mueller, Deputy Attorney General.

POLLAK, P. J.

The Lake Norconian Club Foundation (the foundation) appeals the denial of its petition for writ of mandate alleging that the California Department of Corrections and Rehabilitation (the department) failed to comply with the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq.,¹ by allowing the "demolition by neglect" of the Lake Norconian Club, a former hotel owned by the department and listed on the National Register of Historic Places. The foundation contends the department's "decision not to repair the historic hotel roof in the face of imminent El Niño rains in 2014" was a "project" requiring preparation and certification of an environmental impact report (EIR). The trial court concluded that the failure to seek or allocate funding to maintain the former hotel was a project, but that the foundation's petition was barred by the statute of limitations. We affirm the judgment denying the petition on the ground that the department's inaction is not a project subject to CEQA.

Factual and Procedural Background

The former hotel currently sits unoccupied on the grounds of a medium-security prison owned and operated by the department. When first opened in 1929, the hotel was a luxury resort catering to Hollywood stars and sports celebrities. The interior of the Spanish Revival-style building contains Heinsbergen murals, stenciled ceilings, exquisite tile, and special wrought-iron light fixtures. In 1941, following the depression and with the advent of World War II, the hotel was closed and the building transferred to the United States Navy. The building was used as a military hospital until 1962, when it was transferred to the State of California. Since 1963, the department has operated a prison adjacent to the former hotel. The hotel building first served as a drug rehabilitation facility and later housed the prison's administrative offices. In 2002, the department moved its staff from the building and offered to donate it to the City of Norco

(the city). The city, however, was unable to satisfy the conditions of transfer and the property has remained under the state's ownership.

In 2012, the Legislature enacted Senate Bill No. 1022 which, among other things, required the department to close the prison adjacent to the former hotel no later than December 31, 2016. (Stats. 2012, ch. 42, § 15.) In June 2013, the department published a draft EIR analyzing, among other things, the impacts on the former hotel of the prison's closure. The EIR indicated that there was no funding for repair or rehabilitation of the building "in light of other [department] maintenance and repair priorities," that it was not feasible for the department to undertake any repairs, and that "[c]ontinued deterioration is therefore expected." In September 2013, the Legislature passed legislation rescinding closure of the prison. (Stats. 2013, ch. 310, § 21.) The final EIR was certified in October 2013. The response to comments in the final EIR indicated that, although the prison would not be closed, the department nevertheless would not be able to repair or maintain the former hotel due to inadequate funds and higher, mission-critical maintenance needs and other priorities.

After its formation in 2006, the foundation repeatedly encouraged the department to perform necessary maintenance on the building. Emails exchanged between the foundation and the department between May and October 2014 demonstrate continued efforts to address the needed repairs. On October 15, the department emailed the foundation inquiring what its "next steps" would be to explore repair options for the hotel roof. On October 28, the foundation replied through its attorney, formally requesting that the department undertake repairs and corrective measures to repair the roof and maintain the vulnerable resources on the historic site that were deteriorating from the department's neglect.

On November 17, 2014, the foundation filed the present petition. The petition alleges, "The department and its director have and continue to abuse their discretion and fail to act in the manner required by law in ongoing demolition by neglect of the Lake Norconian Club. Years of neglect and lack of security have left gaping holes in the club roof and extensive damage from wildlife and water intrusion. The willful, ongoing failure to maintain and protect the historic club is a continuous discretionary action with significant environmental impacts.... The department's de facto issuance of ongoing demolition permits is a precommitment to a CEQA project that cannot lawfully be considered for approval or implementation without first preparing and certifying an EIR to consider impacts and alternatives." The foundation does not allege that any permits for the repair, maintenance or demolition of the property were issued. To the contrary, it asserts the failure to maintain the property is the equivalent of issuing a demolition permit.

In October 2015, the foundation moved for injunctive relief, requesting that the court order the department to take "all immediate action necessary" to protect the hotel from 2015 winter rains. The court ordered the department "to permit [the foundation] and the city ... prompt and reasonable access to the hotel for the purpose of permitting [the foundation] and the city ... to maintain and preserve the hotel," but the foundation and the city were to bear all costs of maintenance, subject to reimbursement by the department if the foundation ultimately prevailed in the action.

In April 2018, the court issued an order denying the petition. The trial court concluded that the department's failure "to seek or allocate funding to preserve the hotel" in the face of its knowledge that its failure to act would inevitably lead to the destruction of the historic resource was a project within the meaning of CEQA, but that the petition was untimely because the statute of limitations began to run with the certification of the 2013 EIR. Following the entry of judgment and the denial of its motion for a new trial, the foundation timely filed a notice of appeal. Thereafter, the department timely filed a notice of cross-appeal.

Discussion

The foundation contends the trial court erred in holding its petition barred by the statute of limitations applicable to petitions alleging noncompliance with CEQA (§ 21167). In its cross-appeal, the department asserts the trial court erred in deeming the failure to act a project subject to CEQA. The department's contention need not have been raised by a cross-appeal, since it merely provides an additional argument in support of the judgment and seeks no additional relief. ( Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 924, fn. 56, 107 Cal.Rptr.2d 761.) Nonetheless, we agree with the department that its failure to act does not constitute a "project," either in common parlance or as the term is used in CEQA.

CEQA requires a governmental agency to "prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any project which they propose to carry out or approve that may have a significant effect on the environment." (§ 21100, subd. (a).) "CEQA and its implementing administrative regulations ... establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations. [Citation.] The first tier is jurisdictional, requiring that an agency conduct a preliminary review to determine whether an activity is subject to CEQA. [Citations.] An activity that is not a ‘project’ as defined in the Public Resources Code (see § 21065) and the CEQA Guidelines (see [Cal. Code Regs., tit. 14,] § 15378) is not subject to CEQA." ( Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 379-380, 60 Cal.Rptr.3d 247, 160 P.3d 116, fn. omitted.) "Whether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact." ( Id. at p. 381, 60 Cal.Rptr.3d 247, 160 P.3d 116.)

CEQA defines a "project" as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [¶] (a) An activity directly undertaken by any public agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies." (§ 21065; see also Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 106, 56 Cal.Rptr.3d 728 [" ‘project’ refers to the underlying activity which may be subject to approval"].)² In construing the term "project," as with any provision of CEQA, the court should interpret it in such a manner "as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." ( Cal. Code Regs., tit. 14, § 15003, subd. (f) ; Laurel Heights Improvement Assn. v. Regents of University of California (1989...