Neighbors in Support of Land Use v. Tuolumne

• Decision Date: 07 December 2007
• Docket Number: No. F051690.,F051690.
• Citation: 157 Cal.App.4th 997,68 Cal.Rptr.3d 882
• Court: California Court of Appeals
• Parties: NEIGHBORS IN SUPPORT OF APPROPRIATE LAND USE et al., Plaintiffs and Respondents, v. COUNTY OF TUOLUMNE et al., Defendants and Appellants.

68 Cal.Rptr.3d 882

157 Cal.App.4th 997

NEIGHBORS IN SUPPORT OF APPROPRIATE LAND USE et al., Plaintiffs and Respondents, v. COUNTY OF TUOLUMNE et al., Defendants and Appellants.

No. F051690.

Court of Appeal, Fifth District.

December 7, 2007.

Gregory J. Oliver, County Counsel, A. Paul Griebel, Deputy County Counsel; Diepenbrock Harrison, Andrea A. Matarazzo, Michael E. Vinding, and David R. Rice for Defendants and Appellants.

Kenyon Yeates, J. William Yeates, Keith G. Wagner, and Jason R. Flanders Sacramento, for Plaintiffs and Respondents.

OPINION

WISEMAN, J.

We begin by stating the question presented in this case. That is, can a county approve an application to devote a parcel of real property to a use disallowed by the applicable ordinance even though the county does not rezone the property to a district allowing the use, does not amend the text of the zoning ordinance to allow the use in the existing district, does not issue a conditional use permit consistent with the zoning ordinance, and does not grant a variance? We conclude that it cannot. Tuolumne County's decision in this case to grant a parcel an ad hoc exception allowing a commercial use in an agricultural zoning district—an exception which was unavailable to other parcels in the same district—violated the uniformity requirement of Government Code section 65852.¹ Contrary to the county's contention, it does not help that the exception was contained in a development agreement approved pursuant to the development agreement law (§ 65864 et seq.). We affirm the trial court's judgment directing the county to reverse its action.

FACTUAL AND PROCEDURAL HISTORIES

Ronald and Lynda Peterson owned 37 acres in an unincorporated area of Tuolumne County. On it were a house, another house under construction, two garages, a working seven-acre vineyard, a stream, and several water-storage ponds. The area around two of the ponds was landscaped extensively, while the remainder of the property was in a natural state, occupied by grasses and oak trees. The Petersons had plans to expand the vineyard by three acres. Bordering the property to the west were two other 37-acre parcels used as grazing pasture. To the north, south, and east was residential property in lots ranging from two to five acres.

After holding their daughter's wedding on the property, the Petersons decided to open a business hosting weddings and similar events. The zoning designation of the property, however, was Exclusive Agricultural, 37-acre minimum (AE-37). The purpose of the AE-37 district, as set forth in the zoning ordinance, "is to provide for agricultural and resource production where commercial agricultural uses can exist without encroachment of incompatible uses." (Tuolumne County Ord. Code, § 17.08.010.) Commercial use for weddings and similar events was not allowed by the zoning ordinance, with or without a conditional use permit. (Tuolumne County Ord. Code, §§ 17.08.020,17.08.030.)

The Petersons submitted an application to the Tuolumne County Community Development Department on January 21, 2003, seeking permission to use the property for the new commercial venture. Many neighboring residential owners submitted letters and a petition urging denial of the application. The two agricultural neighbors submitted no comments and one expressed support for the application when contacted by telephone by county staff. The neighbors' opposition was aroused by the Petersons' daughter's wedding, which had resulted in noise and cars parked along the road. For these and other reasons, county staff and the county's planning commission recommended denial of the application. At a meeting of the board of supervisors on September 16, 2003, the Petersons withdrew their application before the board took action on it.

The Petersons submitted a revised application on October 21, 2003. It included many modifications that had been proposed by the planning commission. The revised application also sought to address the problem—previously unresolved—presented by the fact that the property was not zoned for the contemplated use, even with a conditional use permit. It did this by relying on proposed amendments to the zoning ordinance then pending before the board of supervisors. These amendments would have added, as conditional uses in the AE-37 and AE-37:AP zoning districts, "lawn parties, weddings, or similar outdoor activities..." The revised application sought a conditional use permit based on the proposed amendments.²

The board of supervisors declined to adopt the proposed amendments.³ In a comment letter sent to the community development department as part of the public notice-and-review process, counsel for Neighbors in Support of Appropriate Land Use asserted that "[t]he County does not have the legal authority to actually approve the project ... because the County's zoning ordinance does not allow the use proposed...." Responding to this comment, city staff acknowledged that, because of the county's failure to adopt the zoning ordinance amendments, "commercial events are not a permitted or conditional use in the AE-37 or :AP zoning districts." Despite this, staff opined that the county could still approve the Petersons' application by creating a special exception to the zoning ordinance, to be contained within a development agreement adopted under the development agreement law. (§ 65864 et seq.) A conditional use permit, although not relevant for zoning purposes given the county's failure to adopt the zoning amendments, would still be necessary to make the property eligible for a new contract under the Williamson Act. (§ 51200 et seq.) Consequently, according to staff, "[t]he only alteration of the project [resulting from the failure to adopt the zoning amendments] is that the necessary entitlements have changed from a Use Permit to a Development Agreement and Use Permit."

The board of supervisors proceeded in accordance with the staff recommendations. On July 5, 2005, it passed Ordinance No. 2636, authorizing adoption of a development agreement. The development agreement purported to grant the Petersons "[a]n exception to Chapters 17.08 and 17.51 of the Tuolumne County Ordinance Code . . . to allow commercial events, including weddings, retirement or birthday parties, service club functions, and similar activities as conditional uses in the AE-37 ... and :AP ... districts on the real property." The agreement acknowledged that its purpose was to stand in for amendments to the zoning ordinance that would allow the uses in question: It stated that it would terminate when "commercial events such as lawn parties, weddings or similar activities are made conditional uses in the AE-37 and :AP zoning districts" by action of the board of supervisors. At the same time, the board issued Conditional Use Permit 03CUP-46, purporting to allow the Petersons to engage in these uses on the property. To address the requirements of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), the board approved a mitigated negative declaration stating that, with mitigation measures, the project would not have a significant effect on the environment.

Neighbors in Support of Appropriate Land Use and two of its members, Steve Bickford and Fred Stieler (collectively Neighbors), filed a petition for a writ of mandate, naming the County of Tuolumne and its board of supervisors (collectively the county) as respondents and seeking reversal of the county's action. The petition argued that the county lacked authority to approve the Petersons' application because the commercial uses at issue violated the zoning ordinance even with a conditional use permit. It also argued that the county failed to fulfill its responsibilities under CEQA.

Neighbors moved for judgment and the court granted the motion. The court agreed with the first allegation in Neighbors' petition, ruling that the county's action "violates the Planning and Zoning Law [ (§ 65000 et seq.) ], because it authorizes a use on [the Petersons'] land that is not allowed under the County's AE-37 or [:AP] zoning ordinances." For this reason, "Ordinance No. 2636, the Development Agreement, and the Conditional Use Permit the Development Agreement purports to approve, are ultra vires acts of the Board of Supervisors and are void ab initio," the court concluded. It then dismissed Neighbors' CEQA claim "as unripe for judicial review." The court entered judgment on its order on October 2, 2006, and the county's appeal followed.

DISCUSSION

Standard of review

The county actions the trial court invalidated were the approval of a development agreement and the issuance of a conditional use permit. The approval of a development agreement is a legislative act (§ 65867.5) which the trial court reviews under ordinary or traditional mandamus procedures pursuant to Code of Civil Procedure section 1085. (Santa Margarita Area Residents Together v. San Luis Obispo County Bd. of Supervisors (2000) 84 Cal.App.4th 221, 227-228, 100 Cal.Rptr.2d 740.) The trial court's inquiry in a traditional mandamus proceeding is limited to whether the local agency's action was arbitrary, capricious, or entirely without evidentiary support, and whether it failed to conform to procedures required by law. (Pitts v. Perluss (1962) 58 Cal.2d 824, 833, 27 Cal.Rptr. 19, 377 P.2d 83; Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 300, 41 Cal.Rptr.3d 420, disapproved on other grounds by Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 59 Cal.Rptr.3d 442, 159 P.3d 33.) The trial court may not substitute its judgment for that of a public agency or force the agency to exercise its discretion in a particular manner, but may correct abuses of discretion. (Wal-Mart Stores, Inc. v. City of Turlock, supra, 138 Cal.App.4th at p. 300, 41 Cal.Rptr.3d 420.)

Further, "[a]lthough the traditional formulation articulated in the mandate cases [citations] does not specifically...