Opinion
C091033
10-12-2021
GENESEE FRIENDS et al., Plaintiffs and Appellants, v. COUNTY OF PLUMAS, Defendant and Respondent GENESEE VALLY RANCH, LLC, Real Party in Interest and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. CIV1700152
DUARTE, J.
Plaintiff Genesee Friends and others (collectively, plaintiffs) brought this mandamus action against defendant County of Plumas, challenging the county's determination that the use of a helicopter and heliport for personal and agricultural purposes is permissible on land zoned agricultural preserve, as such use is functionally equivalent to uses already permitted under local land use law. Plaintiffs claimed that the county's determination violated various zoning and planning laws, and that the county erred in concluding its determination was a ministerial action exempt from the requirements of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). The trial court granted summary judgment against plaintiffs, finding that they failed to exhaust their administrative remedies. This appeal followed. We will affirm the judgment.
Undesignated statutory references are to the Public Resources Code.
BACKGROUND
Real party in interest Genesee Valley Ranch, LLC (GVR) is a private 1, 476 acre working cattle ranch with several residences and accessory buildings. It is located in the Genesee Valley area of Plumas County and is zoned agricultural preserve.
At some point, GVR decided that it wanted to use a portion of its property for private-use helicopter operations, including constructing a concrete pad for landing and taking off (i.e., heliport) and a storage building/hanger for a helicopter. On August 16, 2016, GVR filed an application with the county seeking a determination that the use of a heliport and helicopter on its property for personal and agricultural purposes was permissible on the basis that such use was a functionally equivalent use (appurtenant use) to existing uses permitted on land zoned agricultural preserve under local land use law.
On August 29, 2016, several members of Genesee Friends, an unincorporated nonprofit association, filed a complaint with the county claiming that GVR needed a special permit to construct a heliport on its property, and that GVR's use of a heliport on land zoned agricultural preserve was not permitted under zoning and planning laws.
On April 7, 2017, the county issued a staff report on GVR's application, which provided an analysis of applicable land use laws, goals, and policies, and concluded that GVR's application should be granted.
On April 15, 2017, the county published notice of a hearing on GVR's application in the Indian Valley Record. The notice indicated that GVR sought a “determination that personal and agricultural use of [a] helicopter is a ministerial, appurtenant use to the working ranch and existing residence.” Thereafter, several of the plaintiffs, including Genesee Friends, submitted comment letters to the planning director, which collectively asserted that approval of GVR's application would violate zoning and planning laws and that CEQA review would be required before GVR's application could be approved.
On May 3, 2017, a hearing on GVR's application was held before the county's planning director. Counsel for plaintiffs, who also represents plaintiffs on appeal, appeared at the hearing.
On June 30, 2017, the planning director issued a written decision, concluding that owners of land zoned agricultural preserve in Plumas County, including GVR, have a right to use a helicopter and a heliport for agricultural and personal use. In so concluding, the planning director found, “[T]he [GVR] heliport and a heliport on other lands zoned Agricultural Preserve is a functionally equivalent use (appurtenant use or ‘appurtenance') to those uses permitted in the Agricultural Preserve (AP) zoning as defined in Plumas County Code Sections 9-2.211 and 9-2.3002.” The planning director explained that permitted uses in the agricultural preserve zone include agriculture, that GVR's use of a helicopter would be similar to the use of a tractor or truck in that it would support the main uses of the property by providing transportation for the owners and managers of the property and a means to monitor cattle and ranching land uses, and that GVR would use a helicopter for a variety of different purposes that support agriculture and the management of ranching activities, including, but not limited to, monitoring grass fed cattle operations, aerial mapping for pasture management, external load transport, construction related to agriculture, and aerial seeding and fertilization.
The planning director's decision noted that the Plumas County Code defines “appurtenance” to mean “a use, building, or activity which is a functional part of the use.”
The planning director additionally concluded that his functionally equivalent use determination was exempt from the requirements of CEQA, explaining: “Section 21080 states that a situation where a public agency merely has to determine whether there was conformity with objective standards in applicable ordinances or other laws is a ministerial action. Ministerial actions are exempt from CEQA. This action is a ministerial action, therefore; the functionally equivalent use determination is exempt from CEQA.” The planning director's decision specifically stated that, pursuant to Plumas County Code section 9-2.1001, it could be appealed to the Plumas County Board of Supervisors (board) within 10 days by filing an appeal in writing with the clerk of the board, in the manner specified in the Plumas County Code. There were written copies of this code section “on the table” at the June 30, 2017 hearing where the planning director announced his decision.
Plumas County Code section 9-2.1007 provides that the board “shall conduct any such appeal hearing as a full hearing de novo on the project, with the right to limit the issues that may be raised, or the evidence that may be received.”
On July 10, 2017, plaintiffs filed an administrative appeal of the planning director's decision. The appeal was a two-page letter written on counsel's letterhead. It identified the challenged determination made by the planning director and the legal grounds for appeal, including that the decision violated CEQA as well as zoning and planning laws.
On July 12, 2017, GVR's counsel submitted a letter to the planning director, asserting that plaintiffs' administrative appeal was invalid for several reasons, including that plaintiffs failed to use the required appeal form. It is not disputed that plaintiffs' appeal did not comply with Plumas County Code Section 9-2.1002, which provides that, “An appeal shall only be filed on the official form provided by the Clerk of the Board... together with such additional information as may be necessary.”
At some point in late-July 2017, the county posted an agenda for the August 1, 2017 board meeting, which included the following agenda item: “Receive appeal of Genesee Friends and set public hearing date to consider appeal; discussion and action.” On July 27, 2017, county counsel left a message for plaintiffs' counsel, explaining that the board would discuss the date for the appeal hearing at the August 1 board meeting, and that GVR was disputing the adequacy of the appeal filing, which would also be discussed at the meeting.
At the August 1 board meeting, the board dismissed plaintiffs' administrative appeal as procedurally defective, as it had not been filed on the official form required by the Plumas County Code. The board declined to address the merits of the appeal as requested by plaintiffs' counsel after counsel admitted that he did not ask the clerk of the board for the form, even though he had read the code section stating that an appeal must be filed on the official form provided by the clerk. The record does not reflect that, following the August 1 board meeting, plaintiffs sought permission from the board to refile their appeal using the official form or otherwise challenged or sought reconsideration, at the administrative level, of the board's decision to dismiss their appeal on procedural grounds.
When asked at the board meeting whether the official form was available, the clerk of the board stated that the form was “found” after plaintiffs' administrative appeal was filed and was subsequently “posted on the website.” At the time plaintiffs' appeal was filed, the clerk did not know where the form was.
On August 8, 2017, the county filed a Notice of Exemption (NOE), finding that the “project” was exempt from CEQA because the planning director's functionally equivalent use determination was an interpretation of an existing code section, which is a ministerial action. The NOE identified the agency approving the project as the planning director, and described the project as follows: “[The GVR] heliport and any heliport on other land zoned Agricultural Preserve (AP) is a functionally equivalent use (appurtenant use) to those permitted in the AP zoning (Plumas County code sections 9-2.211 and 9-2.3002).”
On September 12, 2017, a petition for a writ of mandate was filed by members of Genesee Friends, alleging one cause of action against the county under CEQA. The petition asserted the county improperly determined that the project was exempt from CEQA, and sought an order directing the county to rescind the NOE and set aside its decision to approve the project unless and until it complied with CEQA. GVR was named as the real party in interest.
A first amended verified petition for writ of mandate was filed on October 30, 2017, adding Genesee Friends as a plaintiff and a cause of action for “Failure to Comply with Planning and Zoning Laws.” Like the original petition, the first amended petition did not allege that the board erroneously dismissed plaintiffs' administrative appeal on procedural grounds. Instead, both petitions simply stated, “The Board... dismissed the appeal based on a finding that the appeal had been filed on the wrong form.”
In January 2018, the trial court sustained the county's demurrer to the first amended petition with leave to amend, finding that plaintiffs had failed to allege sufficient facts showing they had exhausted their administrative remedies. In doing so, the court stated: “While the [first amended petition] indicates... that administrative remedies have been exhausted, that statement is inconsistent with the indication of a dismissal.... [T]here is no indication in the pleading that the dismissal was in error. If the rejection of the appeal was not erroneous, then it follows that [plaintiffs] have not and probably never will exhaust their administrative remedies. Unless the rejection was unlawful, [plaintiffs] have no standing... and unless their administrative remedies have been exhausted this Court is without jurisdiction to grant the relief requested.... If rejection of the appeal was erroneous, the pleading fails to request the Court set it aside. Without making such a finding, it may be that if [plaintiffs are] entitled to any relief, it may be limited to a finding that the Board... should not have rejected the appeal on procedural grounds.”
On February 9, 2018, a second amended verified petition for writ of mandate was filed, adding a third cause of action for “Wrongful Denial of Petitioner's Appeal.” This cause of action sought an order setting aside the board's dismissal of plaintiffs' administrative appeal on procedural grounds (i.e., for not using the proper form) without providing a hearing on the merits. In support of this cause of action, plaintiffs asserted that the board's dismissal of their appeal was improper for a number of reasons, including that they had substantially complied with the Plumas County Code in filing the appeal and the official form was not available at the time the appeal was filed. In the alternative, plaintiffs alleged that exhaustion of administrative remedies was not required due to the County's failure to comply with notice requirements under state and local law in that “the County's notice [regarding GVR's application] did not disclose that the County intended to make a determination regarding the use of helipads/heliports on all Ag Preserve parcels in the County.” Plaintiffs additionally alleged that exhaustion of remedies was not required “due to the fact that the Planning Director's June 30, 2017 determination constituted a de facto zoning amendment, a final decision for which cannot be made by the Planning Department. The County's failure to comply with the proper statutory procedure for processing zoning amendments precludes the County from raising an exhaustion defense involving an appeal that the County was not statutorily allowed to require in the first place.”
On August 1, 2018, the trial court sustained the county's demurrer to the third cause of action without leave to amend, finding that plaintiffs' claim for wrongful denial of their administrative appeal was barred by the applicable 90-day statute of limitations. (See Gov. Code, § 65009, subd. (c)(1); Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 155-157 [90-day statute of limitations applies to broad range of challenges to local zoning and planning decisions made by local agencies].) In so ruling, the trial court rejected plaintiffs' contention that this cause of action was timely because it related back to the filing of the original or first amended petition for statute of limitations purposes. The court reasoned that the third cause of action involved a different primary right insofar as it was based on different facts and sought to remedy a different injury than plaintiffs' first (CEQA) and second (zoning and planning) causes of action, and that the county did not have adequate notice of the third cause of action based on the allegations in the earlier pleadings, as neither the original petition nor the first amended petition alleged that the board's dismissal of the administrative appeal was erroneous.
The policy underlying the 90-day statute of limitations is codified in Government Code section 65009, subdivision (a)(2) and (3): “(2) The Legislature... finds and declares that a legal action or proceeding challenging a decision of a city, county, or city and county has a chilling effect on the confidence with which property owners and local governments can proceed with projects. Legal actions or proceedings filed to attack, review, set aside, void, or annul a decision of a city, county, or city and county pursuant to this division... can prevent the completion of needed developments even though the projects have received required governmental approvals. [¶] (3) The purpose of this section is to provide certainty for property owners and local governments regarding decisions made pursuant to this division.” Courts have acknowledged this legislative policy.
On October 29, 2018, the county and GVR filed a motion for summary judgment, arguing that such relief was warranted on the remaining causes of action because plaintiffs had not and could not exhaust their administrative remedies in light of the trial court's determination that their third cause of action for wrongful denial of their administrative appeal was time-barred. The motion also argued that plaintiffs were not excused from the exhaustion requirement for either of the reasons identified in the second amended petition; namely, the county's inadequate notice regarding the project (i.e., GVR's application) and the planning director's improper de facto zoning amendment. The trial court agreed and granted the motion.
After the trial court denied plaintiffs' motion for new trial, plaintiffs timely appealed.
DISCUSSION
Plaintiffs contend the trial court erred in concluding that summary judgment was warranted because they failed to exhaust their administrative remedies. We disagree. Although plaintiffs insist that the trial court improperly relied on res judicata or collateral estoppel principles in granting the motion for summary judgment, the record clearly shows, as the trial court found, that summary judgment was proper based on plaintiffs' failure to exhaust administrative remedies.
I
Standard of Review and Applicable Legal Principles
A defendant moving for summary judgment has the burden of showing that a cause of action has no merit by demonstrating one or more elements of the cause of action cannot be established or that a complete defense to that cause of action exists. (Code Civ. Proc., § 437c, subds. (a), (p)(2).) If the defendant successfully meets this burden, the plaintiff then has the burden of setting forth specific facts showing the existence of one or more triable issues of material fact. (Id., subd. (p)(2).) The trial court shall grant the defendant's summary judgment motion if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Id., subd. (c).) We review the grant of summary judgment de novo. In doing so, we apply the same legal standards as the trial court to determine whether there exists any genuine issue of material fact or whether the moving party is entitled to judgment as a matter of law. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 390.)
Although we independently assess the grant of summary judgment, our review is governed by fundamental principles of appellate procedure, including that “ ‘ “[a] judgment or order of the lower court is presumed correct, ”' and thus, ‘ “error must be affirmatively shown.”' [Citations.] Under this principle, [the appellants] bear the burden of establishing error on appeal, even though [the respondent] had the burden of proving its right to summary judgment before the trial court.” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 645.)
It is well established that summary judgment is appropriate when a plaintiff fails to exhaust their administrative remedies. (See, e.g., Westinghouse Elec. Corp. v. County of Los Angeles (1974) 42 Cal.App.3d 32, 36-37 & fn. 1; Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 594 (Tahoe Vista).) Under the doctrine of exhaustion of administrative remedies, if an administrative remedy is provided by statute or ordinance, “ ‘relief must be sought from the administrative body and this remedy exhausted before the courts will act.' [Citation.] The rule is a jurisdictional prerequisite in the sense that it ‘is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts.' ” (Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 874 (Citizens); Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 184 (Clews Land).) “ ‘The exhaustion doctrine... operates as a defense to litigation commenced by persons who have been aggrieved by action taken in an administrative proceeding which has in fact occurred but who have failed to “exhaust” the remedy available to them in the course of the proceeding itself.' ” (Tahoe Vista, at p. 589.)
“ ‘[A]n administrative remedy is exhausted only upon “termination of all available, nonduplicative administrative review procedures.”' ” (Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 382.) “The primary purpose of the doctrine ‘is to afford administrative tribunals the opportunity to decide in a final way matters within their area of expertise prior to judicial review.' [Citation.] ‘The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.' [Citations.] The doctrine prevents courts from interfering with the subject matter of another tribunal.” (Citizens, supra, 144 Cal.App.4th at p. 874.) “Another basic purpose of the doctrine ‘ “ ‘is to lighten the burden of overworked courts in cases where administrative remedies are available and are as likely as the judicial remedy to provide the wanted relief.' ”' ” (Ibid.; see Plantier, at p. 383 [“As to judicial efficiency, the doctrine allows an administrative agency to provide relief without requiring resort to costly litigation”].)
Whether administrative remedies have been exhausted in a particular case depends upon procedures applicable to the agency in question. (Citizens, supra, 144 Cal.App.4th at p. 876; Tahoe Vista, supra, 81 Cal.App.4th at p. 591.) For example, if the administrative proceeding includes a right to appeal an allegedly improper action, a plaintiff must generally pursue that administrative appeal in order to exhaust his or her administrative remedies. If some reasonable administrative remedy, such as the right to appeal a decision by a planning commission or planning director, were afforded to challenge the allegedly improper action, the doctrine of administrative remedies would bar suit by litigants who failed to employ it. (See Tahoe Vista, at p. 590.)
“We apply a de novo standard of review to the legal question of whether the doctrine of exhaustion of administrative remedies applies in a given case.” (Citizens, supra, 144 Cal.App.4th at p. 873.)
II
Exhaustion of Administrative Remedies
Because the county, by ordinance, provided for an administrative appeal of the planning director's decision to the board, the question here is whether plaintiffs have demonstrated that they exhausted all the administrative remedies available to them once the planning director issued what plaintiffs considered to be a wrongful decision. (Clews Land, supra, 19 Cal.App.5th at pp. 184-187; Tahoe Vista, supra, 81 Cal.App.4th at pp. 591-592.) The record reflects they did not.
It is not disputed that plaintiffs' administrative appeal to the board was dismissed as procedurally defective because they failed to use the official form required by county ordinance. The record does not disclose that plaintiffs' sought reconsideration of the board's dismissal or otherwise challenged the dismissal at the administrative level following the August 1 board meeting. Instead, this mandamus action was filed approximately six weeks later. Neither the original petition nor the first amended petition alleged that the board's dismissal of the administrative appeal was erroneous. Nearly five months after this action was commenced and after the trial court ruled that plaintiffs had failed to allege facts demonstrating that they had exhausted their administrative remedies, plaintiffs amended their petition to add a cause of action challenging the board's dismissal of their administrative appeal. This cause of action was subsequently dismissed because it was filed beyond the applicable 90-day statute of limitations. In short, because the record reflects that plaintiffs did not comply with the county's administrative appeal procedures and the board did not render a decision on the merits of their appeal, plaintiffs did not exhaust their administrative remedies as a jurisdictional prerequisite to maintaining this action. (See Clews Land, supra, 19 Cal.App.5th at pp. 187-188 [where environmental decision is delegated to nonelected body, which CEQA allows, agency must provide appeal process and challenger must comply with that process to pursue judicial challenge]; Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1448-1450 [failure to appeal planning commission's actions in the manner prescribed by the town code constituted failure to exhaust administrative remedies].) Plaintiffs' failure to timely challenge the board's dismissal of their administrative appeal forecloses the possibility that they could exhaust their administrative remedies, and they have not demonstrated that they were excused from doing so. As a consequence, the trial court properly granted summary judgment.
We are unpersuaded by the various arguments plaintiffs have advanced on appeal to avoid what is, in our view, a straightforward application of the exhaustion of administrative remedies doctrine. Because one of the basic purposes of the doctrine “ ‘ “ ‘is to lighten the burden of overworked courts in cases where administrative remedies are available and are as likely as the judicial remedy to provide the wanted relief' ”' ” (Citizens, supra, 144 Cal.App.4th at p. 874), we do not provide a detailed discussion disposing of plaintiffs' arguments. (See People v. Garcia (2002) 97 Cal.App.4th 847, 853 [“[a]n appellate court is not required to address all of the parties' respective arguments, discuss every case or fact relied upon by the parties, distinguish an opinion just because a party claims it is apposite, or express every ground for rejecting every contention advanced by every party”]; Holmes v. Rogers (1859) 13 Cal. 191, 202 [“An opinion is not... a brief in reply to counsel against whose views we decide. It is merely a statement of conclusions, and of the principal reasons which have led us to them”].) It suffices to say that we have reviewed the arguments and find that none of them overcome the fatal deficiency of plaintiffs' failure to exhaust their administrative remedies. Plaintiffs do not specifically contend (let alone show) that the trial court erred in determining that their cause of action challenging the dismissal of their administrative appeal was barred by the applicable statute of limitations. Instead, they offer a variety of theories as to why the trial court's dismissal of that cause of action does not prevent them from pursuing their other causes of action. These theories are largely based on the incorrect assertion that the trial court's decision was based on issue or claim preclusion and also include arguments concerning notice and zoning that clearly come too late given the procedural posture of this case.
The majority of plaintiffs' arguments are inapplicable to the situation presented by this appeal and border on frivolous. They appear to be invoked in an unpersuasive attempt to avoid the consequences of plaintiffs' failure to timely challenge the dismissal of the administrative appeal on procedural grounds. As respondents correctly argue, these arguments are inconsistent, irrelevant, and inapplicable to the case at hand. Plaintiffs have failed to carry their burden on appeal to affirmatively demonstrate reversible error.
DISPOSITION
The judgment is affirmed. The County and GVR shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: Raye, P. J., Robie, J.