Water v. City of Seaside

• Decision Date: 09 May 2022
• Docket Number: H049031
• Parties: COMMITTEE FOR SOUND WATER AND LAND DEVELOPMENT, Plaintiff and Appellant, v. CITY OF SEASIDE, Defendant and Respondent; KB Bakewell Seaside Venture II, LLC, Real Party in Interest and Respondent.
• Court: California Court of Appeals Court of Appeals

79 Cal.App.5th 389

294 Cal.Rptr.3d 215

COMMITTEE FOR SOUND WATER AND LAND DEVELOPMENT, Plaintiff and Appellant,

v. CITY OF SEASIDE, Defendant and Respondent;KB Bakewell Seaside Venture II, LLC, Real Party in Interest and Respondent.

H049031

Court of Appeal, Sixth District, California.

Filed May 9, 2022

Herum\Crabtree\Suntag, Steven A. Herum, Dana A. Suntag, Joshua J. Stevens, Stockton, for Plaintiff and Appellant.

Office of the City Attorney, Shari L. Damon ; The Sohagi Law Group, PLC, R. Tyson Sohagi, Los Angeles, for Defendant and Respondent City of Seaside.

Cox Castle & Nicholson LLP, Andrew B. Sabey, Lisa M. Patricio, Los Angeles, Robbie C. Hull ; Venable LLP, William M. Sloan, San Francisco, for Real Party in Interest and Respondent KB Bakewell Seaside Venture II, LLC.

Danner, J.

I. INTRODUCTION

This action arises from the proposal of real party in interest KB Bakewell Seaside Venture II (KB Bakewell) to develop a large project known as Campus Town on the former Fort Ord military base. Respondent City of Seaside (City) certified an environmental impact report (EIR) pursuant to CEQA¹ for the Campus Town specific plan and approved the project. After holding a public hearing, the Fort Ord Reuse Authority (FORA) determined that the Campus Town project was consistent with the Fort Ord Reuse Plan.

Appellant The Committee for Sound Water and Land Development (Committee), self-described as a California nonprofit organization comprised of residents, voters, property owners, and taxpayers within City, filed a petition for writ of mandate that included 11 causes of action alleging that the EIR for the Campus Town project violated CEQA and a 12th cause of action alleging that FORA's failure to provide the Committee with notices of the consistency hearing for the project constituted a violation of the Committee's constitutional right to due process.

KB Bakewell demurred to the writ petition on the grounds that the CEQA causes of action were time-barred and the due process cause of action was moot. City demurred on the grounds that the writ petition was a sham pleading and subject to the defense of laches. The trial court sustained the demurrers without leave to amend. For the reasons stated below, we conclude that the trial court did not err and consequently affirm the judgment of dismissal.

II. FACTUAL BACKGROUND

Our summary of the facts is drawn from the allegations of the writ petition filed on September 1, 2020, and the requests for judicial notice filed below. In reviewing a ruling sustaining a demurrer without leave to amend, we assume the truth of the properly pleaded factual allegations and the matters properly subject to judicial notice. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58 ( Blank ).)

In 2017, KB Bakewell submitted applications to City regarding its proposal for development of a project known as Campus Town on an approximately 122-acre site located on the former Ford Ord military base. On February 26, 2018, City issued a notice of preparation of an EIR for the Campus Town specific plan. After holding a public hearing on March 5, 2020, the city council voted to certify the EIR and approve the Campus Town specific plan.

On March 6, 2020, City issued a notice of determination (NOD) for the Campus Town specific plan, which stated that an EIR had been prepared for the project pursuant to CEQA and the project had been approved by City. The NOD described the Campus Town project as "a Mixed-Use Urban Village to serve residents, visitors, and University Students. Build-out includes up to: 1,485 housing units, 250 hotel rooms, 75 hostel beds, 150,000 sf retail/dining/entertainment, 50,000 sf office/flex/makerspace, and park/recreation areas."

On April 5, 2020, the Committee submitted written requests to the Fort Ord Reuse Authority (FORA) to (1) receive prior written notice of City submitting a request to FORA to determine the consistency of the Campus Town specific plan with the Fort Ord Reuse Plan; and (2) receive prior written notice of a public hearing to determine the consistency of the Campus Town specific plan with the Fort Ord Reuse Plan. The Committee did not receive either of the requested notices. After holding a public hearing on June 6, 2020, FORA determined that the Campus Town project was consistent with the Fort Ord Reuse Plan, as stated in Resolution No. 20-10.

III. PROCEDURAL BACKGROUND

A. The First Writ Petition

On April 6, 2020, the Committee filed a petition for writ of mandate challenging the City's approval of the Campus Town project and FORA's determination that the Campus Town project is consistent with the Fort Ord Reuse Plan. (Super. Ct. Monterey County, No. 20CV001203.) The Committee named City as respondent and KB Bakewell as real party in interest.

The writ petition included 10 causes of action alleging that the EIR for the Campus Town project was deficient in its analysis of the environmental impacts of the project and violated CEQA in many respects. The Committee sought a writ commanding City to, among other things, set aside its certification of the EIR and its approvals of the Campus Town project.

The Committee subsequently filed a request for dismissal of the writ petition without prejudice, which was entered as requested on August 4, 2020.

B. The Second Writ Petition

The Committee filed a second petition for writ of mandate regarding the Campus Town specific plan on September 1, 2020, again naming City as respondent and KB Bakewell as real party in interest, and adding FORA as respondent. The second petition for writ of mandate (hereafter, writ petition) is the subject of this appeal.

The writ petition includes 11 causes of action that again alleged that the EIR for the Campus Town project was deficient in its analysis of the environmental impacts of the project and violated CEQA in many respects. In addition, the writ petition included a 12th cause of action for violation of the constitutional right to due process, alleging that FORA had failed to provide either prior written notice of City submitting a request to FORA to determine the consistency of the Campus Town specific plan with the Fort Ord Reuse Plan or prior written notice of a public hearing to determine the consistency of the Campus Town specific plan with the Fort Ord Reuse Plan.²

In the petition, the Committee again sought a writ of mandate commanding City to, among other things, set aside its certification of the EIR and its approvals of the Campus Town project. The Committee also sought a writ of mandate commanding FORA " or its successor in interest to set aside that certain determination that the Campus Town project is consistent with the Fort Ord Reuse Plan."

C. KB Bakewell's Demurrer

In its demurrer, KB Bakewell contended that the 11 causes of action in the writ petition alleging violations of CEQA were time-barred under the 30-day limitations period provided by section 21167, subdivision (c) for an action alleging that an EIR does not comply with CEQA, as extended by the tolling period provided by Emergency rule 9.

According to KB Bakewell, under section 21167, subdivision (c) the 30-day limitations period began to run on March 6, 2020, the date that City posted the NOD for the Campus Town project. KB Bakewell further asserted that Emergency rule 9³ tolled the 30-day limitations period from April 6, 2020, to August 3, 2020, with the result that August 4, 2020, was the last day for the Committee to timely file its writ petition alleging that the EIR for the Campus Town project violated CEQA. Since the writ petition was not filed until September 1, 2020, City maintained that the 11 causes of action in the writ petition alleging violations of CEQA were all time-barred.

Regarding the 12th cause of action for violation of the constitutional right to due process, KB Bakewell argued that the cause of action was moot because FORA has ceased to exist. KB Bakewell pointed out that FORA was dissolved by operation of law on June 30, 2020, pursuant to former Government Code section 67700, subdivision (a). Therefore, FORA no longer determines the consistency of development projects with the Fort Ord Reuse Plan as previously required under former Government Code section 67675.8.

KB Bakewell argued that since a consistency determination by FORA is not required due to FORA's dissolution, any failure to provide proper notice of FORA's consistency determination for the Campus Town project did not constitute a violation of due process. Finally, KB Bakewell argued that the relief requested by the Committee could not be provided, since FORA has been dissolved and a remand to FORA for further action regarding the consistency of the Campus Town project with the Fort Ord Reuse Plan is not possible.

D. Opposition to KB Bakewell's Demurrer

The Committee opposed KB Bakewell's demurrer on both grounds. Regarding the contention that the 11 CEQA causes of action in the writ petition were time-barred, the Committee argued that Emergency rule 9, as amended, constituted an improper ex post facto law that should not be applied to cut off its CEQA claims. The Committee noted that the original version of Emergency rule 9, adopted by the Judicial Council on April 6, 2020, tolled the statute of limitations in civil cases until 90 days after Governor Gavin Newsom lifts the state of emergency relating to the Covid-19 pandemic that the Governor had declared on March 4, 2020.

According to the Committee, its counsel relied on the original version of Emergency rule 9 to provide an open-ended time to file the Committee's writ petition. The Committee further asserted that its counsel was unaware that the Judicial Council had adopted an amendment to Emergency rule 9 on May 22, 2020, that ended the tolling period on August 3, 2020, for the statute of limitations applicable to an action alleging that the EIR violated CEQA.

Describing the amended Emergency rule 9 as a severe "truncation" of the tolling period, the Committee argued that it did...