Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. 06-220509. Melinda Reed, Judge.
Griswold, LaSalle, Dowd, Cobb & Gin, and Raymond L. Carlson, for Petitioners and Appellants.
Kathleen Bales-Lange, County Counsel, Julia Roberts, Chief Deputy County Counsel, Diepenbrock & Harrison, Andrea A. Matarazzo, Michael E. Vinding, and Jeffrey K. Dorso, for Defendants and Respondents.
No appearance for Respondent and Real Party in Interest, Western Milling.
OPINION
Ardaiz, P.J.
INTRODUCTION
Appellants Doreen Caetano-Jungk and Diana Gruber appeal from a dismissal of their petition for writ of mandate and complaint for injunctive declaratory relief. For the following reasons, we affirm.
STATEMENT OF THE CASE
On August 31, 2006, plaintiffs Doreen Caetano-Jungk and Diana Gruber filed a petition and complaint with the Tulare County Superior Court. On September 11, 2006, they filed their First Amended Petition for Writ of Mandate and Complaint for Injunctive Declaratory Relief under California Environmental Quality Act (CEQA), Public Resources Code, sections 21000 et seq. In their petition and complaint, plaintiffs sought to compel respondents County of Tulare and the Tulare County Board of Supervisors (collectively the County) to comply with CEQA and “to identify, analyze, and provide mitigation for the environmental impacts resulting from (i) the approval of the Tulare County Planning Commission, an agency of Respondent Tulare County, of a permit designated as Special Use Permit No[.] PSP 03-067, for the development of an ethanol production facility on 4.2 acres of a 33 acre site in the AE-40 (Exclusive Agricultural-40 acre minimum) Zone; and (ii) the ratification by the Tulare County Board of Supervisors of Special Use Permit [No.] PSP 03-067 and Planning Commission Resolutions Nos. 8060 and 8147.” Plaintiffs further alleged that the Planning Commission approved Resolution No. 8060 on August 24, 2004, and approved Resolution No. 8147 on March 8, 2006. According to plaintiffs, the real party in interest is Western Milling, LLC, which is “the applicant for the special use permit and the proponent of the ethanol plant Project.”
Plaintiffs alleged that Condition 19 of Resolution No. 8060 requires the ethanol production facility to be supplied only with water from California Water Service Company. According to plaintiffs, “[b]y its terms, Condition 19 does not allow use of an on-site well or wells to supply the ethanol production facility.”
Plaintiffs also alleged that Condition 70 of Resolution No. 8060, which requires Western Milling, LLC, to conduct ground water studies represents “illegal deferred mitigation in violation of CEQA” because “Condition 19 does not allow the use of on-site wells to supply the ethanol production facility and no other condition of Resolution [No.] 8060 allows the use of on-site wells to supply water to operate the ethanol plant.”
Plaintiffs further alleged that Resolution No. 8147 constitutes an amendment to Permit PSP 03-067 and the conditions approved in Resolution No. 8060 because Resolution No. 8147 allows Western Milling, LLC to use onsite water wells as a source of water supply for operation of the ethanol plant. According to plaintiffs, this amendment constitutes a new CEQA project.
On September 28, 2006, respondents and real party in interest, Western Milling, (collectively defendants) filed a verified joint answer to the petition and complaint.
On November 20, 2006, defendants filed a Notice of Motion and Motion to Dismiss Petition for Writ of Mandate under California Code of Civil Procedure, section 1094 and Public Resources Code, sections 21167 and 21167.6.5. In their memorandum of points and authorities in support of the motion, defendants contended that all of plaintiffs’ causes of action were time-barred. According to defendants, Condition 19 of Resolution No. 8060 did not prohibit the use of on-site wells because Condition 19 did not have any language prohibiting such use. Rather, the use of on-site wells was contemplated by Resolution No. 8060 because the “Mitigated Negative Declaration,” which was incorporated by reference in Resolution No. 8060, notes that “the proposed onsite domestic water well for employees will be supplied by an onsite well and associated distribution system.” The Mitigated Negative Declaration also specifically contemplates that the onsite domestic well would provide backup fire fighting water supplies. Defendants thus contended that Resolution No. 8147 did not trigger CEQA review because it is not a discretionary project under CEQA since Resolution No. 8147 did not change the project approved by Resolution No. 8060.
Defendants also filed an “administrative record” in support of their motion.
Plaintiffs opposed the motion to dismiss on the ground that Resolution No. 8147 disclosed a different CEQA project than Resolution No. 8060. Plaintiffs repeated their assertions, previously stated in their petition and complaint, that because Resolution No. 8060 did not provide that onsite water wells could be used to supply water for the ethanol production facility, the explicit authorization in Resolution No. 8147 constituted a new CEQA project. Plaintiffs also argued that the motion to dismiss pursuant to Code of Civil Procedure, section 1094 was improper because the motion should have been brought under Code of Civil Procedure, section 437c.
Plaintiffs also raised the argument that a “Private Stipulated Agreement” between Western Milling and plaintiff Caetano-Jungk tolled any applicable statute of limitations.
In their reply, defendants contend that all challenges to Resolution No. 8060 are time-barred. Defendants further contended that the plain language of the “Private Stipulated Agreement” did not toll any CEQA deadlines. Defendants also contended that the administrative record does not support plaintiffs’ argument that Resolution No. 8147 amended Resolution No. 8060. Finally, defendants argued that the motion to dismiss was properly filed under Code of Civil Procedure, section 1094 because all CEQA issues in the case are questions of law.
The superior court concluded that Resolution No. 8147 did not disclose a new CEQA project. Rather, “Resolution No. 8147 was merely a determination that Western Milling had complied with Condition 70 of Resolution No. 8060.” The superior court also concluded that any challenge to Resolution No. 8060 was barred by failure to exhaust administrative remedies and by the CEQA statute of limitations. The superior court further concluded that plaintiffs could challenge the decision by the County to not amend or supplement Resolution No. 8060 as a result of the groundwater studies. After noting that plaintiffs did not object to the administrative record provided by defendants, the superior court concluded that “there is substantial evidence in the record of the agency proceedings to uphold the determination that no additional environmental review is needed by amendment.”
Plaintiffs timely appealed.
FACTS
On August 25, 2004, Tulare County’s Planning Commission, by way of Resolution No. 8060, approved Western Milling’s application for a special use permit which would allow Western Milling to expand its existing feed mill to include ethanol production on a 4.2-acre portion of a 33-acre site in Goshen, California.
The Resolution noted that Doreen Caetano-Jungk of Goshen Residents Against Polluting the Environment (GRAPE) was among those persons “who indicated that they were not necessarily opposed to the project but had specific concerns.”
The Resolution also noted that the Planning Commission had independently reviewed and considered the information contained in the Mitigated Negative Declaration, which was incorporated by reference. The Mitigated Negative Declaration concluded that the ethanol facility would not impact groundwater resources. The Mitigated Negative Declaration addressed the impact of the project on groundwater resources. It provided the following analysis: “Water for the ethanol production process is to be supplied to the proposed facility by interconnection with the community water system owned and operated by California Water Service Company. Backup for fire suppression supply, are to be from the onsite pond and well. Domestic water for employees will also be from the onsite well.” Based upon this analysis, the report concluded that there would be no impact on the sufficiency of water supplies.
Resolution No. 8060 also contained many conditions, three of which are relevant to this litigation. Condition 5 provides: “Process water shall be obtained by connection to California Water [Service] Company.” Condition 19 provides: “Connection to Cal Water Service and an approved method for providing a reliable back-up water source for fire fighting purposes shall be installed. System shall be reviewed and approved by the fire department prior to installation.”
Condition 70 provides in relevant part:
“Western Milling shall hire a qualified consultant, to be approved by the Resource Management Agency, to study further any possible impacts to groundwater resources and to determine the feasibility of implementing additional mitigation measures, if needed, to reduce any potentially significant impacts identified in the study.… After the report is deemed to be adequate and complete, Western Milling shall submit the report to the Planning Commission for consideration at a regular public meeting. Notice of such meeting shall be given in accordance with the State Planning and Zoning Law and copies of the report shall be made available for public review and comment at least ten (10) calendar days before the meeting. Western Milling shall comply with any direction given by the Planning Commission after consideration of the report, including but not limited to, filing an amendment to incorporate any feasible mitigation measures into the project as conditions of approval. Western Milling shall implement such measures determined to be feasible by the Planning Commission. Said amendment (which includes the groundwater resources report) shall be subject to public notice, hearing and comment as required by law.”
Western Milling also voluntarily entered into a Private Stipulated Agreement with appellant Caetano-Jungk. In this agreement, Western Milling agreed to involve appellant Caetano-Jungk in certain aspects of the groundwater resources study. The agreement also stated: “Upon completion of the study, citizens who disagree with the findings or Planning Commission’s decision will have the right to appeal the decision to the Board of Supervisors and any other normal due process of the law.” The Agreement also expressly provided that “Doreen Caetano-Jungk’s signature indicates that she will not file an appeal of the Tulare County Planning Commission’s decision regarding Western Milling/Phoenix Bio Industries’ Ethanol Plant in Goshen, California .…”
Western Milling retained the URS Corporation consulting firm (URS) as experts to conduct the required groundwater studies. URS prepared a Groundwater Resources Report, which the County released for public review in May 2005. URS subsequently prepared a “Revised Addendum to Groundwater Study Report,” dated June 1, 2005, which provided additional technical information regarding some of the scenarios studied in the Groundwater Resources Report.
Following a Planning Commission hearing on the groundwater studies on December 1, 2005, URS prepared a compilation of the previous reports, comments, and analyses (Final Groundwater Report). The Final Groundwater Report concluded that there would be no significant impact on groundwater under various scenarios.
The County circulated the Final Groundwater Report and its 23 exhibits for a 30-day public review and comment period. The Planning Commission held five public hearings on the report and accepted public comment. On March 8, 2006, the Planning Commission adopted Resolution No. 8147, which concluded that no further mitigation efforts were required. Resolution No. 8147 found that Western Milling had complied with Condition 70 of Resolution No. 8060. Resolution No. 8147 also noted that no individual or entity had challenged Resolution No. 8060.
With respect to the use of onsite water wells, Resolution No. 8147 had the following language: “WHEREAS, the total water demand of 250,00 gpd [gallons per day] is equivalent to a continuous water supply rate of about 180 gallons per minute (gpm). This water will be supplied by connection to the community water supply system owned and operated by California Water Service Company. This connection became operational and fully capable of supplying the entire water demand of the facility, including fire flow, in September 2005. An on-site well is available to provide emergency backup water supply in event of a disruption in service by the community water system[.]” Resolution No. 8147 also noted that the groundwater studies analyzed the impact of “the proposed use of the on-site well to supply water for the ethanol facility.” These studies concluded that there would be no significant impact on domestic supply wells on either an incremental or cumulative basis.
STANDARD OF REVIEW
Public Resources Code section 21168 and 21168.5 provide the “standard of review” applied by courts in “[a]ny section or proceeding challenging an agency decision under CEQA.” Under both sections, a court’s review of that agency decision is limited to two questions: (1) Whether there is any substantial evidence in light of the whole record to support the decision; and (2) whether the agency abused its discretion by failing to proceed in the manner required by law. (Pub. Resources Code, § 21168, 21168.5; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 395, fn. 5 (Laurel Heights).) “The appellate court’s role ‘is precisely the same as the trial court’s,’ and lower court’s findings are not ‘conclusive on appeal.’ [Citation.]” (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 722.)
Moreover, “[a]though the agency’s factual determinations are subject to deferential review, questions of interpretation or application of the requirements of CEQA are matters of law.” (Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, 118.) Questions of interpretation and application of contracts are also questions of law. (B.L. Metcalf General Contractor, Inc. v. Earle Erne, Inc. (1963) 212 Cal.App.2d 689, 693.) Questions of law are reviewed de novo. (Turlock Irrigation District v. Hetrick (1999) 71 Cal.App.4th 948, 950 n.1.)
DISCUSSION
A.
Dismissal Under Code of Civil Procedure, Section 1094
On appeal, appellants contend that respondents moved for dismissal of the petition and complaint under the wrong section of the Code of Civil Procedure. According to appellants, respondents should have moved for summary judgment under Code of Civil Procedure, section 437c instead of judgment on the peremptory writ under Code of Civil Procedure, section 1094 because “the issue of the meaning and legal effect of Resolution No. 8147” are “factual issues, not pure issues of law.” We disagree.
Code of Civil Procedure, section 1094 provides in relevant part, that “[i]f a petition for writ of mandate filed pursuant to [Code of Civil Procedure] Section 1088.5 presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ.” Code of Civil Procedure, section 1088.5 provides: “In a trial court, if no alternative writ is sought, proof of service of a copy of the petition need not accompany the application for a writ at the time of filing, but proof of service of a copy of the filed petition must be lodged with the court prior to a hearing or any action by the court.”
Here, although not styled as such, appellants filed a petition for a writ of mandate under Code of Civil Procedure, section 1088.5 because appellants did not seek an alternative writ. Thus, under Code of Civil Procedure, section 1094, any party, including respondents, could seek judgment on the writ if there was no triable issue of fact or if the writ could be determined solely on the administrative record. (See Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1286 [“Under the circumstances, the motion for judgment provided by Code of Civil Procedure section 1094 is the proper, and exclusive, procedural means for seeking a streamlined review of an agency’s decision.”]) In this case, as evidenced by the discussion below, there was no triable issue of fact or the writ could be determined solely on the administrative record. Thus, respondents properly brought the motion to dismiss under Code of Civil Procedure, section 1094.
In their reply brief, appellants contend that the “administrative record” produced by respondents in support of their motion to dismiss is at best, “a portion of, or a truncated form, of the administrative record required by section 21167.6(e) of CEQA.” Thus, appellants contend that reliance on Code of Civil Procedure, section 1094 as the proper basis for a dispositive motion is erroneous as a matter of law where the movants failed to provide the proper administrative record. Because appellants raise this issue for the first time in their reply brief, even though they were put on notice by the superior court that it was relying on the administrative record, we decline to review this legal contention. (See, e.g., Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [stating that arguments raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before].)
Moreover, there was no triable issue of fact in this case as the issues on appeal (whether certain documents disclose a new CEQA project or whether an agreement tolls CEQA’s statutes of limitations) are all issues of law. The administrative record is an issue only with respect to the superior court’s determination that substantial evidence in the record supports the agency’s determination that Resolution No. 8147 did not amend Resolution No. 8060. Appellants have not challenged this determination on appeal, although a challenge likely would not have been successful. (See Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 474 [holding that no supplemental or subsequent Environmental Impact Report may be required by an agency, even if new information or changed circumstances exist, except in connection with a new discretionary approval].) We also note that the superior court, in reaching this determination, specifically mentioned that there was no objection to the administrative record filed by respondents.
B.
Challenge to Resolution No. 8147 Under CEQA
The superior court dismissed the petition and complaint on the basis that Resolution No. 8147 was not a new CEQA project, and thus the petition and complaint were not timely filed. On appeal, appellants contend that the petition was timely because Resolution No. 8147 discloses a different CEQA project than Resolution No. 8060. Appellants also contend that the Private Stipulated Agreement between Western Milling and appellant Caetano-Jungk tolled any applicable CEQA statute of limitations. We disagree with both contentions.
CEQA contains several statutes of limitations, none of which provides a limitations period exceeding 180 days. (See Pub. Resources Code, §§ 21667(a) – (e).) CEQA’s statutes of limitations are unusually short and strictly enforced. (Lee v. Lost Hills Water Dist. (1978) 78 Cal.App.3d 630, 634.) CEQA’s short statutes of limitations demonstrates the “legislative determination that the public interest is not served unless challenges under CEQA are filed promptly.” (Oceanside Marina Towers Assn. v. Oceanside Community Development Comm. (1986) 187 Cal.App.3d 735, 741.) Where the agency approved a project for which a negative declaration was prepared, a petitioner has 30 days to challenge approval of that project under CEQA. (Pub. Resources Code, §§ 21667(b), (c), (e); 21152.)
Here, appellants are time-barred from filing any CEQA challenge to the project disclosed by Resolution No. 8060, which was approved on August 25, 2004. Appellants contend, however, that Resolution No. 8147 discloses a new CEQA project because, according to appellants, Resolution No. 8147 discloses, for the first time, the use of onsite water wells for the ethanol production process and for fire suppression. We disagree.
Resolution No. 8060 and the incorporated Mitigated Negative Declaration approved a project which contemplated that the ethanol production facility would use groundwater for: 1) the ethanol production process; 2) fire suppression; and 3) employee use. In Conditions 5 and 19, Resolution No. 8060 disclosed that water for the ethanol production process and fire suppression would be provided by the community water system owned and operated by California Water Service Company. This community water system included local area wells. The Mitigated Negative Declaration provided that the on-site water well, which is a local area well that is not owned by the California Water Service Company, would provide backup for water suppression and provide the water for employee use.
Resolution No. 8147 was passed to certify that Western Milling had complied with the requirements of Condition 70 of Resolution No. 8060. Condition 70 had required that Western Milling undertake a study of any possible impacts on groundwater and implement any required feasible mitigation measures. Resolution No. 8147 found that Western Milling had provided the groundwater impact study and concluded that no further mitigation efforts were required. Thus, read in light of Resolution No. 8060, Resolution No. 8147 did not disclose a new project. Rather, it confirmed that the project which was approved by Resolution No. 8060 did not require additional feasible mitigation measures.
Appellants, however, contend that Resolution No. 8147, which also provided that “[a]n on-site well is available to provide emergency backup water supply in event of a disruption in service by the community water system,” would permit the ethanol production facility to use groundwater from the on-site well in the ethanol production process and for fire suppression. We partially disagree with appellants’ interpretation of this sentence in Resolution No. 8147. That language merely repeats what was already disclosed in the Mitigated Negative Declaration, which provided that the on-site well could be used as a back-up water supply for fire suppression and for employee use. Thus, the on-site water well could be used to provide emergency backup supply for fire suppression at the ethanol production facility (for example, by supplying water to the sprinkler systems).
We do not believe that the cited language in Resolution No. 8147 permits the use of water from the on-site well in the ethanol production process. If Resolution No. 8147 permitted such a use of water from the on-site well, it would be disclosing a new CEQA project. However, given that the purpose of Resolution No. 8147 was to merely confirm that Condition 70 of Resolution No. 8060 had been met, the more reasonable interpretation of the cited language is that the water from the on-site well could only be used for employee use and as an emergency backup supply for fire suppression. Therefore, Resolution No. 8147 did not disclose a new CEQA project.
The Private Stipulated Agreement also did not excuse appellant Caetano-Jungk from complying with CEQA’s statute of limitations. Because we have concluded that Resolution No. 8147 does not disclose a new CEQA project, appellants are contending that the Private Stipulated Agreement allows them to bring a CEQA challenge to the project disclosed by Resolution No. 8060. The agreement states: “Upon completion of the study, citizens who disagree with the findings or Planning Commission’s decision will have the right to appeal the decision to the Board of Supervisors and any other normal due process of the law.” (Italics added.) We do not interpret the phrase “any other normal due process of the law” to mean that respondents waived their affirmative defenses based upon CEQA’s statutes of limitations. The plain language of the agreement is that citizens can appeal the Planning Commission’s decision to the County or through any other normal legal means. It is not “normal” to file a claim barred by a statute of limitations; here, appellants are contending that a claim time-barred at least by the end of 2004 could be filed on August 31, 2006. Our conclusion that the Private Stipulated Agreement did not toll the applicable CEQA statutes of limitations is supported by the shortness of CEQA’s limitations periods, which demonstrates the “legislative determination that the public interest is not served unless challenges under CEQA are filed promptly.” (Oceanside Marina Towers Assn. v. Oceanside Community Development Comm., supra, 187 Cal.App.3d at p. 741.)
DISPOSITION
The judgment is affirmed. Costs to respondent.
WE CONCUR: Levy, J., Cornell, J.