Opinion
C065626
12-22-2016
MEADOW VISTA PROTECTION, Plaintiff and Appellant, v. COUNTY OF PLACER et al., Defendants and Respondents, GREEN VISTA HOLDINGS, LLC, Real Party in Interest and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCV22244)
Appellant Meadow Vista Protection (MVP) is a citizens' group which opposes asphalt processing permitted by respondent County of Placer (County) at a quarry owned by real party in interest, Chevreaux Aggregates, Inc., aka Green Vista Holdings, LLC (hereafter, Chevreaux). MVP appeals from the trial court's judgment denying MVP's petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5), writ of traditional mandamus (Code Civ. Proc., § 1085), and complaint for declaratory relief. Regarding the County, MVP contends: (1) the County abused its discretion in determining in 2007 that a 1972 conditional use permit (CUP) allowing asphalt processing at the Meadow Vista quarry (quarry) was a permit for an intermittent use that did not lapse despite years of non-use, and (2) the County failed to perform a ministerial obligation to regulate the asphalt operations as a nonconforming use under the zoning ordinance adopted in 1995. Regarding purported errors by the trial court, MVP argues the trial court erred by: (1) denying judicial notice of documents; (2) ruling that the County did not abuse its discretion in determining the permit did not lapse from non-use; (3) ruling that MVP failed to exhaust administrative remedies on the nonconformance issue; (4) ruling that the County's regulatory role was discretionary rather than ministerial such that traditional mandamus was unavailable; and (5) denying declaratory relief.
Chevreaux was originally named as real party in interest but transferred its assets to Green Vista Holdings, LLC (GVH), while this appeal was pending. GVH substituted in as real party in interest, but we will refer to the party as Chevreaux, as do all parties on appeal, because that is the name which appears throughout the record.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior owners of the subject land began quarrying gravel on the land around 1947. The quarry is located in the Sierra Nevada foothills at the end of Combie Road in Placer County, near the east shore of Bear River and Lake Combie.
In 1963, the County established a zoning plan creating a district encompassing Meadow Vista, zoned as industrial and recreational-forestry (RF) around Lake Combie. Both zones permitted excavation, quarrying, and related uses and facilities subject to approval of a CUP.
In 1965, the County issued special permit for land development No. LD-1030 to a previous landowner, permitting the development and operation of the quarry for shot rock extraction and a crushing, screening, and washing plant for grading materials of sand, gravel, and rock. The County's 1965 General Plan stated that extraction of these materials and other minerals provided "a major contribution to the County's economy."
In 1974, the County adopted a Meadow Vista-West Applegate General Plan reiterating the importance of mineral extraction to the economy of the County.
In 1970, Chevreaux bought the quarry and assumed operations. In 1971, the County granted Chevreaux a CUP, permit No. LDA-691, allowing an asphalt batch plant for asphalt processing.
In 1972, Chevreaux obtained the CUP at issue in this litigation, LDA-786 (the 1972 CUP), which allowed the asphalt operations to be moved about 600 feet. Among the conditions for the 1972 CUP was compliance with requirements of the Air Pollution Control District (APCD). Additionally, the 1972 CUP provided, "This is to be a permanent location for an asphalt batch plant." A previous limitation on hours of operation was lifted and the 1972 CUP did not impose any explicit restriction on hours of operation or quantities. In describing the history of asphalt production at the quarry to a member of the Placer County Board of Supervisors (Board) prior to the issuance of the 1972 CUP, the planning director wrote that in 1947 an asphalt plant "began operation on an intermit[e]nt basis."
The quarry was one of the primary sources of asphalt for roadway projects in the region, as well as various other public and private projects. From 1972 to 1976, Chevreaux conducted intermittent asphalt processing at the quarry whenever the need arose, including processing for projects on Interstate 80, Highway 20, and Highway 49.
In 1978, the County designated the quarry site as a "mineral reserve" (MR) district to ensure that surrounding development remained compatible with the mining operations in order to protect the opportunity for extraction and use of the valuable mineral resources.
In 1982, Chevreaux and the County asked the State Department of Conservation to classify the quarry in accordance with the Surface Mining and Reclamation Act of 1975 (SMARA), Public Resources Code section 2710 et seq. In 1983, the State Department of Conservation found the quarry site qualified as a Mineral Resource Zone (MRZ), a resource of statewide importance. In 1984, the County adopted a final environmental impact report (EIR) for its Mineral Resource Conservation Plan, expressing a policy to preclude incompatible uses from encroaching into mining operations.
On July 31, 1987, in response to an inquiry from Chevreaux seeking verification that the 1972 CUP was still in effect, the County planning director concluded in a letter that the 1972 CUP remained valid.
Beginning in 1988, Chevreaux processed asphalt at the quarry for the Morrison-Knudsen Interstate 80 project, which was completed in 1990.
In 1995, the County enacted a new zoning ordinance with provisions material to this appeal. (Placer Ord. No. 4669-B, ch. 17 (1995 Ordinance).) The portion of the quarry where the asphalt plant was located was rezoned to Residential Forest-Mineral Reserve (RF-MR) in the 1995 Ordinance. Allowable uses of the RF-MR designation under the 1995 Ordinance included, "Mining, surface and subsurface" with a CUP. (1995 Ordinance, §§ 17.46.010(B), 17.56.270.) The 1995 Ordinance reiterated the finding that "[t]he extraction of minerals is essential to the continued economic well-being of the County and to the needs of the society, and that the reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety." (Id., § 17.56.270(A)(1).)
As we discuss post, MVP argues asphalt production falls under the ordinance's definition of " 'paving materials' " rather than " 'surface mining,' " and a paving materials land use is allowed only in industrial or heavy commercial districts, not in the RF-MR district. We need not resolve this issue, because as we explain post, the asphalt production can continue as a legal nonconforming use under the 1972 CUP.
Section 17.58.160(B)(2) of the 1995 Ordinance states that a CUP remains valid and runs with the land unless, after the use is established and operated as approved, the use "is discontinued for more than twelve consecutive months or (if an appurtenant structure is required for the conditionally-permitted use) the structure is removed from the site for more than twelve consecutive months." (Italics added.) This was a change from the prior code, which provided that a permit could only lapse if the authorized use was not utilized within one year of the permit issuance. (Former Placer Co. Code, § 1208(a)(1).)
Section 17.58.160(B)(2) of the 1995 Ordinance provides in pertinent part: "Lapse of Permit After Implementation. Once a project has been implemented . . . , the permit that authorized the use shall remain valid and in force and shall run with the land, including any conditions of approval adopted with the permit, unless one of the following occurs: [¶] a. [Construction work on a construction project ceases and one year elapses after expiration of the permit]. [¶] b. After a use has been established and/or operated as approved, the use (if no appurtenant structure is required for its operation) is discontinued for more than twelve consecutive months, or (if an appurtenant structure is required for the conditionally-permitted use) the structure is removed from the site for more than twelve consecutive months. If a structure associated with the operation of a conditionally permitted use is issued a certificate of occupancy and all other conditions of approval of the conditional use permit are satisfactorily completed, the entitlement remains in effect even if the structure is vacant for more than twelve consecutive months; however, no use may be reestablished in the structure and/or on the site unless the use is determined by the planning director to be substantially the same as the original conditionally permitted use. [¶] c. The time limit set for the duration of the use by a condition of approval expires." (Italics added.)
MVP contends the asphalt plant is an " 'appurtenant structure' " under section 17.04.030 of the 1995 Ordinance, which defines "structure" as "any artifact constructed or erected, the use of which requires attachment to the ground, or over one hundred twenty (120) square feet in area or over six feet in height, or any structure that requires a building permit, including any building, but not including fences or walls six feet or less in height, or concrete flat work such as patios or planters less than twelve (12) inches in height." (1995 Ordinance, § 17.04.030 (definitions of land uses, specialized terms and phrases).)
The ordinance expressly provides it is prospective only. It states, "[T]he requirements of this chapter are not retroactive in their effect on a use of land that was lawfully established before this chapter or any applicable amendment became effective, except where an alteration, expansion or modification to an existing use is proposed," or subject to exceptions inapplicable here. (1995 Ordinance, § 17.02.030(C).)
The ordinance also allows continuation of nonconforming uses. It states, "A nonconforming use of land may be continued, transferred or sold, provided that no such use shall be enlarged or increased, nor be extended to occupy a greater area than that which it lawfully occupied before becoming a nonconforming use. Additionally, nonconforming uses shall not be enlarged, extended[,] expanded nor increased to occupy a larger area, nor a more intensive use than that which it was characterized by in the prior twelve months." (1995 Ordinance, § 17.60.120(A).)
In May 1996, the County adopted the Meadow Vista Community Plan. A list of assumptions upon which the plan was based includes: "10. Chevreaux Quarry will continue its operations for the life of the Plan, and quarry truck traffic will continue to travel Combie and Placer Hills Roads." The final EIR for the plan recognized that while there was not an asphalt plant operating at the quarry at that time, "a permit has been obtained for such operations."
In 2001, Chevreaux processed asphalt for work on Interstate 80. In May 2001, Kiewit Pacific Co., as primary contractor for an Interstate 80 project, obtained an air quality permit (AC-01-51) from the APCD for a portable asphalt processing plant at the quarry. No objection to the permit was made by the County. For Chevreaux this meant the opportunity to produce up to 110,000 tons of asphalt per calendar quarter there. Kiewit ceased its operation of this plant on September 21, 2001.
We discuss post, MVP's assertion that no asphalt production occurred between 1976 and 2001.
The process of obtaining an APCD permit included consultation by APCD with the County planning department, which reviewed APCD applications to assure that necessary entitlements were in place.
In January 2005, Teichert Aggregates, Inc. (Teichert), applied to the APCD for a permit to assemble and operate a portable asphalt processing plant at the quarry to produce and transport 290,000 tons of asphalt over two consecutive seasons.
By letter to the County dated February 14, 2005, a Meadow Vista citizen, John Blodger, complained about the asphalt production proposed by Teichert at the quarry. (Hereafter, the Blodger letter.) Blodger asserted the following: the 1972 CUP had lapsed; under the applicable code the area was zoned for MR, which did not include asphalt production; Teichert's plan called for a new asphalt plant 1,000 feet from the old location; and there would be noise and pollution from the plant and transportation of asphalt and there was the potential for an environmental disaster such as an oil slick in Lake Combie. In a letter dated February 15, 2005, Blodger corrected factual inaccuracies in his first letter. He emphasized that the "main issues" in his first letter were still valid -- based on the zoning ordinance, the 1972 CUP had lapsed and that the zoning did not include asphalt production.
Blodger explained that at that time, a still to be named "grass roots organization" was forming, and he was sending the letter under his own name because he perceived time to be of the essence.
The trial court granted MVP's unopposed motion to augment the administrative record with this letter on the ground it had been inadvertently omitted from the record presented to the trial court. MVP relies on this 2005 letter as evidence it exhausted its administrative remedies in connection with the County's 2007 determination, a contention we discuss post.
On February 25, 2005, county counsel wrote a memorandum to the planning director in which he acknowledged that members of the public had raised concerns about whether the 1972 CUP had lapsed. The memorandum expressed the view that: Chevreaux had a vested right in the 1972 CUP in the permitted activities; the 1972 CUP could not be found to have lapsed without a due process hearing for the permit holder; that operations must comply with the CUP's conditions; and the determination of whether the conditions are violated required a detailed review of all factors surrounding the issuance and usage of the permit and a hearing. Additionally, county counsel recognized that the County had always acted as if there had not been a lapse and further noted, "it does not appear the purpose [of the permit] has ever changed, i.e., the periodic, intermittent processing of asphalt." However, county counsel expressly stated that he was expressing no final opinion on the lapse issue, and recommended a complete factual investigation be undertaken.
In March 2005, Teichert withdrew its application when the County expressed concerns over the proposal's compliance with the 1972 CUP. Teichert indicated it would use other sources for supplying asphalt.
The following year, in March 2006, Chevreaux applied to the APCD for a permit to assemble and operate a portable asphalt processing plant at the quarry. In April 2006, the APCD granted a temporary permit (AC-06-31) for the installation of a portable asphalt plant and for production of 48,000 tons of asphalt per calendar quarter at the quarry.
In June 2006, the planning director told the Meadow Vista Municipal Advisory Council that the 1972 CUP " 'will never lapse.' "
In July 2006, MVP filed a lawsuit challenging aspects of Chevreaux's quarry and asphalt operations. MVP sought a writ of mandate to compel the County and the planning department to conduct a factual inquiry as to the validity and scope of Chevreaux's entitlements and enforce the permit conditions and relevant County ordinances. However, a demurrer was later sustained as to the writ of mandate cause of action on the ground that MVP failed to set forth a mandatory or ministerial duty. When MVP failed to amend, the writ of mandate cause of action was dismissed. On February 22, 2007, MVP moved for summary adjudication on the cause of action alleging that Chevreaux's permit had lapsed under the 1995 Ordinance. The trial court denied MVP's motion, finding that there were triable issues of material fact. The court also denied Chevreaux's motion for judgment on the pleadings as to MVP's causes of action, including the lapse claim. The case was scheduled for trial in November 2007, but MVP subsequently dismissed the case without prejudice in January 2010.
We grant MVP's request for judicial notice seeking judicial notice of MVP's January 26, 2010, dismissal without prejudice of the 2006 lawsuit, Meadow Vista Protection v. Chevreaux Aggregates et al., Placer County Superior Court case No. SCV19614.
During the pendency of the 2006 litigation, on February 28, 2007, Chevreaux again requested a determination by the planning director that the 1972 CUP remained valid and had not lapsed. The parties stipulated to continue the trial in the 2006 lawsuit.
On May 18, 2007, the planning director made a written determination that there was no lapse and the asphalt operations at the quarry " 'are a currently legally permitted use.' " The planning director wrote: " '[A]sphalt activities have been occurring at the subject site at various times since 1946. The intermittent nature of the operation was repeatedly referenced in a May 25, 1972 memorandum from then-Planning Director Thomas McMahan to former District 3 Supervisor Ray Thompson. The identification of the activities of the uses at the subject site, just prior to the approval of [the 1972 CUP], reiterates that the asphalt facility was an intermittent use. . . . [T]hese uses, while generally consistent in nature, have been intermittent in duration, depending upon the need and demand for materials. [¶] Under Section 17.58.160(B)(2) of the County Zoning Ordinance, a properly exercised use may lapse and the use must be discontinued until re-established in accordance with the applicable requirements. Lapse generally occurs when a use is discontinued for more than twelve (12) continuous months. The County has on several occasions since the approval of [the 1972 CUP] acknowledged that this use of the site would be intermittent and Chevreaux's use[] of the site has been consistent with the County's understanding of the use as it was originally permitted. Based upon my review of the public record, it is my determination that a use such as this which is approved as intermittent in nature cannot lapse under Section 17.58.160(B)(2) simply due to discontinuance for a twelve (12) month period. Further, it is my determination that asphalt operations at the current Meadow Vista/Combie Chevreaux Aggregates, Inc., facility are a currently legally permitted use.' " (Some italics omitted & italics added.)
On May 25, 2007, a citizen who later became a member of MVP, Richard Goodwin, appealed the planning director's determination to the planning commission. The administrative appeal challenged only the determination that the 1972 CUP had not lapsed through non-use. The administrative appeal expressly set forth seven grounds for the appeal: (1) the County had no jurisdiction to determine lapse because the same matter was the subject of pending litigation in the 2006 case; (2) the planning director's determination did not mention any legal authority relevant to lapse, abandonment, or vested rights, the latter two of which did not save the 1972 CUP from lapse; (3) the most recent document relied upon by the planning director was a 1987 letter, which had no effect on the later-adopted 1995 Ordinance, which first introduced the lapse wording into the zoning ordinance; (4) the planning director solicited no input from the public and apparently relied only on a self-serving letter from Chevreaux's attorney, which was inadequate grounds for an official determination; (5) the planning director repeatedly referred to "intermittent use," apparently without investigation by the planning director or consultation with county counsel, whereas the word " 'intermittent' " appeared nowhere in the 1972 CUP or the zoning ordinance; (6) labeling the 1972 CUP as " 'intermittent' " based on need and demand was a "Herculean exaggeration" and one brief period of operation in 32 years with a complete absence of operation for 26 years could not be called " 'intermittent' "; and (7) the director did not quote provisions of the zoning ordinance, explain their meaning, or send a copy of his determination to various county entities and staff, as required by the zoning ordinance. Goodwin's administrative appeal did not complain that the quarry was no longer zoned for asphalt production or challenge the planning director's express determination that " 'asphalt operations at the current Meadow Vista/Combie Chevreaux Aggregates, Inc., facility are a currently legally permitted use.' "
The seventh ground expressly referenced a specific section in the zoning ordinance to support this contention.
MVP complains on appeal that at the hearing, county counsel admonished those in attendance that the narrow issue before the planning commission was the planning director's determination on the lapse issue. But it seems clear that county counsel's remarks related to the grounds set forth in Goodwin's administrative appeal. As we have noted, Goodwin's appeal did not challenge the planning director's determination that the asphalt production was a legally permitted use on the ground that asphalt production was in nonconformance with the zoning ordinance. As we discuss post, this omission is relevant to the discussion of whether MVP failed to exhaust administrative remedies on the nonconformance issue.
On July 12, 2007, the planning commission held a hearing on the appeal. During the hearing, the planning director explained, "There is no use proposed at this time. . . . [T]he intent of the determination was to determine the status of the permit . . . ." He further explained the basis for his determination: "The challenge you have with this application is it dates back to its approval back in 1972. So you go back and look at what was approved back in 1972, what the intent was, what has been the practice of that operation since 1972. That's the analysis that staff undertook when it considered this application. This facility is quite unique and as it relates to this facility it was staff's conclusion that the intermittent use is consistent with that use that was originally approved on the site. So it was staff's basis that the asphalt use has been intermittent in nature and has the opportunity to continue to be consistent with the approval set forth back in 1972." The planning director also said, "The determination was based upon a review of all of the files associated with this project and with the project site, as well as the historic use of the site, how the site has been used, when it has been used, and determinations that have been made by prior planning directors as it related to the use associated with this project site."
In July 2007, the planning commission upheld the determination, concluding the planning director's action was reasonable and a fair reading of the 1995 Ordinance.
By letter dated July 19, 2007, Goodwin appealed to the Board, stating the same grounds raised before the planning commission. On November 7, 2007, a hearing was held on Goodwin's appeal. By letter dated November 6, 2007, and received by the Board that day, MVP's attorney argued reasons why the asphalt facility was no longer a legally permitted use. However, he did not argue that the quarry was no longer zoned for asphalt production under the 1995 Ordinance. The Board upheld the planning director's determination as affirmed by the planning commission.
In October 2007, during the pendency of the county administrative appeal process and litigation in the 2006 case, Chevreaux obtained a permit from the APCD, authorizing the installation of a portable asphalt plant and production of 48,000 tons of asphalt per calendar quarter at the quarry permitted by the 1972 CUP.
There was no asphalt processing at the time of the trial court's decision in this case.
In January 2008, MVP filed the current petition for writ of mandate and complaint for declaratory relief, challenging the County's non-lapse determination and failure to view asphalt production as nonconforming to the zoning ordinance. MVP's 2006 lawsuit was still pending at that time (which MVP referenced in the allegations of the current lawsuit) but as we have noted, the 2006 litigation was dismissed without prejudice in January 2010.
The current pleading challenges the County's November 2007 determination that the 1972 CUP did not lapse due to non-use. The pleading further challenges the County's "failure to prohibit Chevreaux's installation and use of an asphalt facility at the Meadow Vista quarry because such use is non-conforming under the County zoning ordinance and did not exist at the time of enactment of new zoning applicable to the Meadow Vista quarry in 1995 or has since been abandoned."
In the current lawsuit, MVP seeks: (1) writ of administrative mandate ordering the County to set aside its determination that the 1972 CUP had not lapsed; (2) writ of traditional mandate compelling the County to revoke the 1972 CUP as a nonconforming use under the zoning ordinance (1995 Ordinance, § 17.60.120) an issue not raised by MVP in the administrative proceedings; (3) writ of traditional mandate compelling the County to require Chevreaux to apply for a new permit on the ground that Chevreaux's operations are more expansive than those allowed by the 1972 CUP; and (4) declaratory relief declaring the parties' rights as to all claims.
Section 17.04.030 of the 1995 Ordinance defines nonconforming use as follows: " 'Nonconforming use' means a use of land that was lawfully established, but that is not identified as an allowable use by Sections 17.06.030 et seq. ([a]llowable land uses and permit requirements) of this chapter."
Section 17.60.120 (nonconforming uses) of the 1995 Ordinance states, "No land use permit shall be approved pursuant to Article 17.58 (Discretionary Land Use Permit Procedures) which results in the creation of a nonconforming use of land or building, or which makes any existing use, building or structure nonconforming as to the provisions of this chapter. A nonconforming use of land or buildings may be continued, changed or replaced only as provided by this section. . . . [¶] A. Nonconforming Uses of Land. A nonconforming use of land may be continued, transferred or sold, provided that no such use shall be enlarged or increased, nor be extended to occupy a greater area than that which it lawfully occupied before becoming a nonconforming use. Additionally, nonconforming uses shall not be enlarged, extended[,] expanded nor increased to occupy a larger area, nor a more intensive use than that which it was characterized by in the prior twelve months. [¶] . . . [¶] G. Loss of Nonconforming Status. If a nonconforming use of land or a nonconforming use of a conforming building is discontinued for a continuous period of one year, it shall be presumed that the use has been abandoned. Without further action by the county, further use of the site or building shall comply with all the regulations of the zone district in which the building is located [citation] and all other applicable provisions of this chapter." (Italics added.)
After a hearing, the trial court issued a comprehensive 30-page decision denying MVP's petition and complaint on all counts. The court ruled that the County did not abuse its discretion in determining that the 1972 CUP had not lapsed. Regarding zoning nonconformance, the trial court determined MVP failed to exhaust administrative remedies. The court also ruled that MVP failed to show a ministerial obligation, and mandamus cannot lie to compel exercise of a discretionary duty. The trial court described MVP's claim for declaratory relief as a "catch basin of issues that are subsumed within those of the prior causes of action." The trial court declined to grant declaratory relief on various grounds, including an exercise of its discretion that no declaration was necessary given the trial court's rulings on the other causes of action.
DISCUSSION
I. Trial Court's Denial of Judicial Notice
We first address MVP's judicial notice contentions. MVP argues the trial court erred in denying judicial notice of various documents. (Evid. Code, §§ 452-453.) We disagree.
We apply the abuse of discretion standard of review to any ruling by the trial court on admissibility of evidence, including requests for judicial notice. (In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271.) The trial court's decision not to take judicial notice will be upheld on appeal unless the reviewing court determines that the moving party furnished information to the trial court that was so persuasive that no reasonable judge would have refused to take judicial notice. (Willis v. State of California (1994) 22 Cal.App.4th 287, 291.)
A. MVP's November 29, 2007, Letter to the County
MVP sought judicial notice of a November 29, 2007, letter from MVP's attorney to the County, asserting that Chevreaux's asphalt processing was a nonconforming use under the zoning ordinance and/or was an expansion requiring a new permit. Invoking Evidence Code sections 452, subdivision (h), and 453, MVP argued the letter showed it asked the County to take action on Chevreaux's asphalt processing as a nonconforming use under the zoning ordinance and/or that Chevreaux expanded operations required a new permit. According to MVP, the letter showed it exhausted administrative remedies. The trial court denied judicial notice on the grounds that the letter was not submitted to the County until three weeks after the relevant County hearing on November 7, 2007, and was not part of the administrative record.
Evidence Code section 452, subdivision (h), allows permissive judicial notice of "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy."
Evidence Code section 453 says permissive judicial notice is conditionally mandatory if the requesting party: (a) gives adverse parties sufficient notice to meet the request and (b) furnishes the court with sufficient information to enable it to take judicial notice.
On appeal, MVP argues the letter was relevant to the issue of exhaustion of remedies on the nonconforming use issue. MVP also argues the letter did not need to be part of the administrative record, because it related to MVP's petition for writ of traditional mandamus, not administrative mandamus.
However, "any matter to be judicially noticed must be relevant to a material issue." (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) MVP cites no authority that a belated letter sent after the administrative hearing constituted an exhaustion of administrative remedies.
Review of an administrative decision is confined to the administrative record, subject to exceptions inapplicable here. (Code Civ. Proc., § 1094.5, subd. (e); California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, 1049; Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1143-1144; Smith v. County of Los Angeles (1989) 211 Cal.App.3d 188, 198.) A party cannot show exhaustion of administrative remedies through judicial notice of matters occurring after the administrative proceeding concluded. The November 29, 2007, letter, sent three weeks after the administrative hearing, could not be judicially noticed to establish exhaustion of administrative remedies.
Code of Civil Procedure section 1094.5, subdivision (e), provides: "Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment . . . remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case."
The trial court did not abuse its discretion in denying judicial notice of the November 29, 2007, letter.
B. Photographs/Declaration Regarding Ongoing Operations
In response to the County's assertions that there was no actual controversy requiring judicial intervention because no asphalt operations were ongoing or proposed, MVP sought judicial notice of photographs and a declaration from MVP president/chairman Jeff Evans describing asphalt operations occurring in 2008 while this litigation was pending. The opposition objected on the following grounds: (1) the trial court could not consider evidence outside the administrative record; (2) "activities of a private corporation, like those of a natural person, are not among the facts of which courts take judicial notice" (City of Oakland v. Darbee (1951) 102 Cal.App.2d 493, 501); (3) to the extent MVP sought traditional mandamus, Chevreaux's answer put material facts in issue, entitling Chevreaux to a trial if needed, and MVP could not establish facts subject to dispute merely by requesting judicial notice; and (4) Evans's declaration was patently defective in failing to attest he had personal knowledge that would render him competent to testify to the statements made in his declaration.
The trial court denied judicial notice for the reasons stated in the opposition.
On appeal, MVP argues it submitted the photographs and declaration in response to the County's statements in its briefing that no asphalt operations were occurring at the quarry. MVP contends the County relied on this factual assertion to argue the traditional mandamus and declaratory relief claims were not ripe, and therefore the documents were relevant to the trial court's determination of this point. However, as we explain post, MVP's traditional mandamus and declaratory relief claims fail for other reasons. Moreover, MVP concedes ongoing operations "may not be directly relevant to the issues in the lapse proceeding."
We conclude the trial court did not abuse its discretion is denying judicial notice of the photographs and Evans's declaration.
C. CC&Rs
MVP also sought judicial notice of Covenants, Conditions, and Restrictions (CC&Rs) between Chevreaux as owner and purchaser of property adjacent to the quarry, recorded with the County in 2005. The CC&Rs were attached to Jeff Evans's declaration with his assertion that he received the document "from a local real estate agent" at a MVP meeting and that Chevreaux was presenting these CC&Rs to buyers of its adjacent property. MVP said the CCRs showed that Chevreaux claimed the 1972 CUP allows Chevreaux's asphalt operation to include up to 600 trucks over a 24-hour period, including night operations. Chevreaux and the County objected on the following grounds: (1) the document was outside the administrative record; (2) it was not authenticated; (3) there was nothing showing it was written or authorized by Chevreaux; and (4) any representation by the " 'local real estate agent' " was hearsay. MVP thereafter filed a second request for judicial notice along with a supplemental declaration from Evans and another copy of the CC&Rs, which Evans declared he had obtained from the County Recorder's Office. The trial court denied judicial notice for the reasons stated in the opposition.
MVP asserts the initial baseline was 20 trucks per day. Chevreaux disputes MVP's interpretation of the CC&Rs. Chevreaux says they do not describe asphalt operations but rather what the combined quarry operations -- sand and gravel mining, batch concrete production, and asphalt processing -- might generate. Since we uphold the trial court's denial of judicial notice, we need not address the matter.
On appeal, MVP cites authority for the general proposition that recorded CC&Rs are judicially noticeable. However, lack of foundation, which MVP asserts it cured, was not the only objection. MVP ignores the objection by Chevreaux and the County that the CC&Rs were not part of the administrative record. MVP merely contends the evidence was relevant to the traditional mandamus and declaratory relief claims in that it showed a present controversy regarding the extent of Chevreaux's rights to conduct asphalt operations at the quarry site. However, given our conclusions, post, that the 1972 CUP is valid and that MVP failed to exhaust administrative remedies on its claim of nonconforming use or show breach of a ministerial duty warranting traditional mandamus, there is no controversy requiring judicial resolution.
We conclude MPV fails to show any abuse of discretion by the trial court's denial of judicial notice.
II. Administrative Mandamus Purported Lapse of the 1972 CUP
MVP argues the County abused its discretion in determining the 1972 CUP was for a permanent intermittent use that did not lapse through non-use. We disagree.
A. Standard of Review and Applicable Legal Principles
Regarding the County's non-lapse determination, MVP seeks administrative mandamus under Code of Civil Procedure section 1094.5. The inquiry in such cases is "whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).) On appeal, we review the agency's decision, not the trial court's decision. (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1162.)
Where, as here, we review a County's interpretation of its own ordinance, "[w]e interpret ordinances by the same rules applicable to statutes. [Citation.] Statutory interpretation is ultimately a judicial function. 'Nevertheless, "the contemporaneous construction of a statute by an administrative agency charged with its administration and interpretation, while not necessarily controlling, is entitled to great weight and should be respected by the courts unless it is clearly erroneous or unauthorized . . . ." ' " (Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 290 (Carson Harbor Village).) This is particularly so where the agency has expertise in the subject area. (Yamaha Corp. of America v. State Bd. of Equalization (1999) 73 Cal.App.4th 338, 353 (Yamaha II).) An agency interpretation of the meaning and legal effect of a statute is entitled to consideration and respect by the courts, but the binding power of an agency's interpretation is contextual. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7 (Yamaha I).) Its power to persuade is circumstantial and dependent on the presence or absence of factors that support the merit of the interpretation. (Ibid.) Quasi-legislative administrative decisions receive more deferential judicial review, while ministerial and informal actions merit less deference. (Ibid.)
Section 17.02.050 of the 1995 Ordinance assigns the planning director "the responsibility and authority to interpret the requirements of this chapter," and provides that "[w]henever the Planning Director determines that the meaning of any of the requirements of [the zoning ordinance] are unclear generally or as applied to a specific case, the Planning Director may issue an official interpretation." Additionally, section 17.02.040 of the 1995 Ordinance charges the planning commission with responsibility to administer the ordinance. Here, the commission concurred with the planning director's interpretation of section 17.58.160(B)(2) of the 1995 Ordinance and agreed that his reading of the ordinance was a fair reading and that his non-lapse determination was reasonable.
Where the ordinance is not free from ambiguity, we must determine whether a county's interpretation was arbitrary, capricious, or entirely lacking in evidentiary support. (A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630, 648; No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 244.)
On questions of fact, we indulge all presumptions and resolve evidentiary conflicts in favor of a county's determination. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 674 (San Franciscans).)
B. Forfeiture of MVP's Sufficiency of the Evidence Contention Regarding
Intermittent Use
In its reply brief, MVP asserts for the first time that the evidence was insufficient to support the County's factual finding of intermittent use. MVP has forfeited the point.
In its opening brief on appeal, MVP did not present as a discrete contention an argument that the evidence is insufficient to support the factual finding of intermittent use. MVP's opening brief merely claims that no asphalt operations occurred at the quarry between 1976 and 2001.
Respondents' briefs include citations to evidence, consistent with the trial court's findings, that the quarry produced asphalt for Interstate 80 between 1988 and 1990, and again in 2000 and 2001.
MVP's reply brief claims, as a "factual response" to respondents' briefs, that "there is no substantial evidence of asphalt operations between 1976 and 2001." MVP's reply brief says the only evidence cited by respondents was "random assertions" by Chevreaux's attorney in March and August 2005, which MVP claims the attorney disavowed two years later in interrogatory responses which, according to MVP, conceded the lack of evidence of asphalt operations between 1976 and 2001, in a response stating: "Fresno Paving operated its hot asphalt batch plant within the boundaries of LDA-786 in 1972 the year the permit was issued and continued until through 1976. Kiewit Pacific Company obtained its APCD permit in May 2001 and operated at the Chevreaux site into 2002." MVP contends the change in assertions is consistent with Joe Chevreaux's statement in 1987 that "[s]ince 1976 I have not needed a portable asphalt plant" and the County's 1989 report -- at the time of the Morrison-Knudsen Interstate 80 project -- estimating the amount of traffic that would occur from an asphalt plant "if" one were located at the quarry. MVP also cites in its reply brief Chevreaux's request for the County to make a determination concerning lapse, in which Chevreaux's attorney said, "From 1977 to 1987 no asphalt production occurred. . . . Thereafter, no asphalt production occurred at the quarry until 1999 when Peter Kiewit began operations." MVP contends the evidence showed Kiewit did not begin operations until 2001.
The problem with MVP's reply brief is that it is too late to present a substantial evidence argument. It is unfair to allow an appellant to present a new argument for the first time in a reply brief, and we need not consider such arguments. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-766.)
MVP cannot avoid this forfeiture by labeling this new argument as a "factual response" to a point raised in the respondents' briefs. MVP's opening brief made a factual assertion -- absence of asphalt production between 1976 and 2001 -- that was directly contradicted by the trial court's factual findings in its statement of decision of asphalt operations between 1988 and 2001. Although we review the administrative agency's decision rather than the trial court's decision, the trial court's written decision alerted MVP that this factual matter was in issue. The County did not expressly list the dates of all activity in making its determination that the permit had not lapsed. However, the planning director stated his determination was based upon the historic use of the site -- how and when the site had been used. In upholding the decision, the planning commission said the planning director's determination was reasonable. The Board also upheld the decision. As we have noted, on questions of fact, we indulge all presumptions and resolve evidentiary conflicts in favor of a county's determination. (San Franciscans, supra, 102 Cal.App.4th at p. 674.)
By failing to acknowledge and refute in its opening brief the evidence favorable to the judgment and by failing to present in its opening brief a discrete argument concerning insufficiency of evidence, with legal and factual analysis, MVP has forfeited any substantial evidence challenge. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).)
Moreover, even assuming for the sake of argument that no asphalt production occurred at the quarry between 1976 and 2001, MVP fails to show grounds for reversal. Whereas MVP describes Chevreaux as using the 1972 CUP only intermittently, Chevreaux points out this was not an intermittent use of a CUP, but rather the 1972 CUP itself was a permit for an intermittent use because the very nature of asphalt processing is sporadic, as we discuss post.
C. Interpretation of the Lapse Provision in the 1995 Ordinance
MVP argues the 1972 CUP lapsed as a matter of law under section 17.58.160(B)(2) of the 1995 Ordinance (see fn. 4, ante) because asphalt operations were discontinued for more than 12 consecutive months, and the asphalt plant was removed for more than 12 consecutive months. MVP further argues the County abused its discretion in construing "discontinued" in the ordinance to mean "abandoned," such that, as to permits for intermittent use, 12 months of non-use would not necessarily result in lapse, absent the intent to abandon. MVP contends there was no room for interpretation because the ordinance is unambiguous and mandatory.
MVP further contends abandonment must be presumed under the zoning ordinance adopted in 1995, which provided that "[i]f a nonconforming use of land or a nonconforming use of a conforming building is discontinued for a continuous period of one year, it shall be presumed that the use has been abandoned. Without further action by the county, further use of the site or building shall comply with all the regulations of the zone district in which the building is located [citation] and all other applicable provisions of this chapter." (1995 Ordinance, § 17.60.120(G), italics added.) We disagree with MVP.
First, the 1995 Ordinance did not create a conclusive presumption, because the ordinance expressly indicates the nonconforming use can continue with "further action by the County." (1995 Ordinance, § 17.60.120(G).) Here, the County took such further action in 2007 when it determined in response to Chevreaux's request that the 1972 CUP had not lapsed and was still valid.
Second, "[t]he term 'discontinued' in a zoning regulation dealing with a nonconforming use is sometimes deemed to be synonymous with 'abandoned.' Cessation of use alone does not constitute abandonment. 'Abandonment of a nonconforming use ordinarily depends upon a concurrence of two factors: (1) An intention to abandon; and (2) an overt act, or failure to act, which carries the implication the owner does not claim or retain any interest in the right to the nonconforming use [citations]. Mere cessation of use does not of itself amount to abandonment although the duration of nonuse may be a factor in determining whether the nonconforming use has been abandoned.' " (Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 569 (Hansen).)
As we have noted, a county's interpretation of its own ordinance is entitled to great weight, particularly where the county has expertise in the subject area. (Yamaha II, supra, 73 Cal.App.4th at p. 353; Carson Harbor Village, supra, 70 Cal.App.4th at p. 290.) Land use ordinances are customarily a function of local government. (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149-1152.)
Section 17.02.050 of the 1995 Ordinance, as we have pointed out, assigns the planning director "the responsibility and authority to interpret the requirements of this chapter," and provides that "[w]henever the Planning Director determines that the meaning of any of the requirements of [the zoning ordinance] are unclear generally or as applied to a specific case, the Planning Director may issue an official interpretation." Additionally, section 17.02.040 of the 1995 Ordinance charges the planning commission with responsibility to administer the ordinance. Here, the commission concurred with the planning director's interpretation of section 17.58.160(B)(2) of the 1995 Ordinance and agreed with his determination on non-lapse was a fair reading of the ordinance and a reasonable determination. The Board, which authored the ordinance at issue, affirmed the decision of the planning director and planning commission, warranting even greater deference. (Van Wagner Communications, Inc. v. City of Los Angeles (2000) 84 Cal.App.4th 499, 509, citing Yamaha I, supra, 19 Cal.4th at p. 12.) Even county counsel agreed with that interpretation. (Yamaha I, at p. 21 (conc. opn. of Mosk, J.) [opinion of administrative staff counsel entitled to great weight].)
Administrative interpretation of a municipal ordinance is particularly entitled to deference when it is one that was "consistently maintained and of long standing." (Van Wagner Communications, supra, 84 Cal.App.4th at p. 509.) Here, the County has consistently treated the 1972 CUP as valid despite interruption of asphalt operations for years at a time, because it viewed the CUP as one for intermittent use. This is consistent with the recognition that some land uses are by their nature sporadic. (4 Ziegler, Rathkopf's The Law of Zoning and Planning (4th ed. 2016) § 72:10; see Hansen, supra, 12 Cal.4th 533 [intermittent use of gravel quarry with long breaks in operations].)
Hansen, supra, 12 Cal.4th 533, which we shall discuss in detail, is an example of a sporadic, intermittent use in the mining context. MVP argues Hansen is inapplicable, because it addressed a nonconforming use that never had a permit, whereas here there was a permit. MVP offers no reason why this distinction should make a difference regarding the Hansen court's discussion of discontinuance and abandonment.
MVP also argues Hansen is distinguishable. It is true that Hansen is not factually on point, but that does not detract from the Hansen court's discussion of zoning principles and its observation that the word "discontinued" is sometimes seen as synonymous with "abandoned" in the context of zoning ordinances related to nonconforming uses. Nor do the factual differences between Hansen and the instant case have a bearing on the Hansen court's definition of abandoned, a definition this court has followed. (Pallco Enterprises, Inc. v. Beam (2005) 132 Cal.App.4th 1482, 1498 (Pallco); accord, Summit Media, LLC v. City of Los Angeles (2015) 240 Cal.App.4th 171, 185 (Summit Media).)
In Hansen, a county in 1954 adopted a zoning ordinance prohibiting mining. (Hansen, supra, 12 Cal.4th at p. 540.) The ordinance also provided that if a nonconforming use was " 'discontinued' " for a period of one hundred eighty (180) days or more, any following use had to comply with the new ordinance. (Id. at p. 568.) Also, under the express terms of the ordinance, a nonconforming use could not be expanded into areas of the property that were not being used at the time the zoning ordinance became effective. (Id. at p. 541.) The owners submitted a reclamation plan in which they sought to quarry rock on a hillside on their property, away from the area on the riverbed and riverbank where sand, gravel, and rock had been extracted at the time the ordinance was enacted. (Id. at pp. 545, 548.) There had been periods of 180 days, and up to three years, during which no quarrying occurred because stockpiles of rock were adequate to meet need. (Id. at p. 546.) Similar to the demand for asphalt, demand for the aggregate fluctuated with the needs of the building industry. (Id. at pp. 545-546.) Because a newly constructed dam retained migrating gravels, there were no longer sufficient quantities of gravel in the riverbed to meet the market demand. (Id. at p. 544.) The owners claimed a vested right to mine the hillside area into which they sought to expand their extraction operation. (Id. at pp. 544, 547.) The county determined that, while the owner had a vested right to mine the riverbed area it had been mining, it had lost any right it might have had to quarry the hillside area because there had been no mining of that area within the last 180 days. (Id. at pp. 543, 549.) The county also concluded that the owner's proposal constituted an impermissible intensification of the nonconforming use. (Id. at p. 542.) This court upheld the trial court's denial of the owner's petition for mandamus to set aside the decision of the county (id. at p. 550), agreeing with the county's position. (Id. at p. 542.)
Our Supreme Court in Hansen reversed, holding that California recognizes the "diminishing asset" doctrine, which provides that progression of mining or quarrying activities into other areas of an owner's property is not necessarily a prohibited expansion or change of location of a nonconforming use. (Hansen, supra, 12 Cal.4th at pp. 542, 553-559.) The court further concluded that the nonconforming use included the totality of all aspects of the operation that were integral parts of the business at that time, including mining replenishable materials from the riverbed and banks and quarrying rock from the hillside as well as crushing, combining, and storing the mined materials which compose aggregate, and selling or trucking the aggregate from the property. (Id. at p. 542.) Consistent with the diminishing asset doctrine applicable to extractive operations, the owner's right of normal expansion of a nonconforming use included extending the rock quarry aspect of the business into those other areas of the property owned in 1954 which the owner had then objectively manifested an intent to mine in the future. (Id. at pp. 558-559.) The Supreme Court also held that the trial court erred in concluding that the proposal for future rock quarrying was an impermissible intensification of a nonconforming use. (Id. at p. 571.) In so concluding, the Hansen court reasoned that the rock quarrying was an integral part of the aggregate business and since the aggregate business itself had not been discontinued, the owners did not lose the right to future quarrying on its property as necessary to its production of aggregate. (Id. at p. 570.) The court concluded, "[t]he 180-day provision applies to the nonconforming use itself, not to the various components of the business," and since the entire aggregate mining operation was the land use for which the owners had a vested right, the fact that the hillside quarrying may have been discontinued for 180 days or more was irrelevant. (Id. at pp. 570-571.)
Mining uses anticipate extension of mining into areas of the property that were not being exploited at the time a zoning change caused the use to be nonconforming. (Hansen, supra, 12 Cal.4th at p. 553.) The " 'diminishing asset' " doctrine is an exception to the rule banning expansion of a nonconforming use that is specific to mining enterprises. (Ibid.) " 'The rationale for the "diminishing asset" doctrine is that the very nature of an excavating business is the continuing use of the land, and that this use is what is endorsed by the nonconforming use concept. Thus, the doctrine holds that "an owner of a nonconforming use may sometimes be found to have a vested right to use an entire tract even though only a portion of the tract was used when the restrictive ordinance was enacted." ' " (Id. at p. 557.)
MVP argues that Hansen is distinguishable because the overall gravel and hillside mining operations had to be considered together, and therefore the fact that hillside mining was not being conducted at the time of the zoning change was inconsequential in that case. MVP goes on to argue that the Hansen court said that if the operations had to be considered separately, each would have to be in continuous operation at the time of the zoning change in order to retain vested rights, citing Hansen, supra, 12 Cal.4th at page 570. MVP argues that here, asphalt processing for pavement materials, which is assertedly prohibited by the current zoning ordinance, must be considered separately from surface mining, which is specifically preserved as a land use by the 1995 Ordinance and the Meadow Vista Community Plan. Otherwise, according to MVP, the term " 'continuous' " has no meaning as to asphalt processing, but instead applies only to mining, which is already a permitted use.
But MVP apparently misread Hansen. The Hansen court did not say if the operations had to be considered separately, each would have to be in continuous operation at the time of the zoning change in order to retain vested rights. Rather, in a footnote on the page cited by MVP, the court said, "Were the operations treated separately, we would encourage continuous and unnecessary hillside quarrying to retain the right to exploit that area even at times when riverbed gravel, a replenishing resource, was adequate to meet the needs of the aggregate business," and this would be inconsistent with the purpose of the county ordinance to minimize degradation. (Hansen, supra, 12 Cal.4th at p. 570, fn. 28.) The Hansen court then went on to say, "Even were the rock quarry a separate operation, however, it is not at all clear that the ordinance should be construed as terminating a nonconforming mining use when the mined material is stored and being used as needed, with mining renewed only as necessary to replenish the stockpile. [¶] The parties have offered no evidence of how the county intended its 180-day limitation to apply to mining operations in these circumstances. Were we to construe the [county] ordinance as terminating a nonconforming mining use whenever mining ceased for 180 days even though the mined material was being stored and used as necessary, we would have to assume that the county contemplated that the property would lose its nonconforming use status unless mining operations were renewed every 6 months whether or not additional material was needed. The result in an operation like that of [the owners] would be unnecessary blasting and degradation of the site in order to retain the right to continue a nonconforming use, instead of occasional extraction of rock as needed. [¶] We hesitate to attribute that intent to the county, and the language of the ordinance does not compel that result." (Id. at p. 570, fn. 29, italics added.)
Here, too, MVP's interpretation of the ordinance would require Chevreaux to engage in unnecessary asphalt production every year in order to preserve its rights. Like the court in Hansen, we will not attribute that intent to the County. Instead, we conclude the language of the ordinance does not compel that result.
Similar to Hansen, MVP has offered no evidence of how the County intended its lapse limitation to apply to asphalt manufacturing, a sporadic operation. But different from Hansen, both Chevreaux and the County did offer such evidence and that evidence is compelling. The County simply did not intend the lapse provision to apply to this use, a use that had always been treated as an intermittent one owing to the nature of and market demand for asphalt production.
Lastly, as we have noted, the factual distinctions in Hansen have no bearing on our high court's observation that the word "discontinued" in zoning ordinances is sometimes seen as synonymous with "abandoned" in the context of nonconforming uses. Nor do the factual differences suggest "abandoned" should have some other meaning here. Hansen simply provides a different factual backdrop for the application of the meaning of "discontinued" and "abandoned" in a nonconforming use context. MVP completely ignores the discussion of the meaning of these terms in Hansen and would apparently have us do the same. We decline to do so. Cessation of use alone does not constitute abandonment; rather abandonment of a nonconforming use depends upon a concurrence of two factors: "(1) An intention to abandon; and (2) an overt act, or failure to act, which carries the implication the owner does not claim or retain any interest in the right to the nonconforming use." (Hansen, supra, 12 Cal.4th at p. 569; Summit Media, supra, 240 Cal.App.4th at p. 185; Pallco, supra, 132 Cal.App.4th at p. 1498.) Neither factor is present here. To the contrary, Chevreaux repeatedly sought to confirm its ability to produce asphalt under the 1972 CUP. There was no abandonment of the nonconforming use and thus, the use was not "discontinued" within the meaning of the lapse ordinance.
MVP, in its argument about the zoning nonconformity issue, contends this case cannot be decided under the authority allowing continued and expanded uses involving mining, because asphalt processing is different from mining. MVP argues the RF-MR zoning of the quarry, which allows for surface mining, should not be extended to asphalt production, which falls within the definition of "paving materials," which according to MVP, the ordinance limits to districts zoned as industrial or heavy commercial. (1995 Ordinance, § 17.04.030.) Citing Hansen, supra, 12 Cal.4th at p. 568, MVP contends the land use policy goal of reducing and eliminating nonconforming uses as soon as possible must be applied here. In this regard, MVP also cites declarations from area residents lamenting the air quality in the Meadow Vista vicinity.
"While mining is the all-encompassing term, extracting hard rock is commonly referred to in the industry as 'quarrying.' . . . [¶] A ' "mine" ' is defined as 'all mineral bearing properties of whatever kind or character, whether underground, or in a quarry or pit, or any other source from which any mineral substance is or may be obtained.' ([Pub. Resources Code,] § 2200.)" (Hansen, supra, 12 Cal.4th at p. 544, fn. 7.) "A 'quarry' 'is similar to a mine, in the sense that the material removed, be it mere rock or stone or valuable marble, is removed because of its value for some other purposes [than development of the site]. It is distinguished from a mine in the fact that it is usually open at the top and front . . . and, in the ordinary acceptation of the term, in the character of the material extracted . . . .' " (Ibid.)
The 1995 Ordinance defines a " '[p]aving materials' " land use as "the manufacture of various common paving and roofing materials, including bulk asphalt, paving blocks made of asphalt, creosote wood and various compositions of asphalt and tar." (1995 Ordinance, § 17.04.030 (definitions of land uses, specialized terms and phrases).)
However, these are matters which MVP should have submitted to the County for the County to interpret its zoning ordinance, and MVP's failure to do so precludes raising those matters here. Asphalt production arguably falls within the ordinance's definition of "Mining, Surface and Subsurface (land use)," which means "mining, developing mines or exploring for metallic minerals (ores), coal and nonmetallic minerals (except fuels), or surface mines extracting crushed and broken stone, dimension stone or sand and gravel. . . ." This could be the case because section 17.56.270 of the 1995 Ordinance said: "The processing of materials mined on-site (e.g., gravel plants, etc.) and the retail sales of such mined and processed materials from the mine is permitted by this section, subject to the conditions of the Conditional Use Permit." (Italics added.)
MVP's argument on this point shows why it was important to exhaust administrative remedies to develop an administrative record on the County's interpretation of asphalt production as mining or as paving materials. Instead, MVP withheld until its reply brief over 20 pages of argument on the issue of whether asphalt processing and mining are different.
In any event, the purported distinction between mining and asphalt processing makes no difference to the lapse question or reliance on Hansen for the proposition that a county can construe "discontinuation" of use to mean "abandonment." Like the mining operation in Hansen, asphalt processing is sporadic in nature and involves extraction of a limited supply of minerals from the land.
We conclude MVP fails to show any grounds for reversal based on the County's 2007 determination that the 1972 CUP did not lapse.
III. Traditional Mandamus: Claim of Zoning Nonconformity
MVP argues the County had a ministerial obligation to regulate Chevreaux's asphalt operations as a nonconforming use under the zoning ordinance, and such ministerial obligation may be enforced through traditional mandamus under Code of Civil Procedure section 1085. We disagree.
A. Standard of Review
Regarding MVP's claim for traditional mandamus (Code Civ. Proc., §§ 1085, 1086), we apply the following standard: "In reviewing the trial court's ruling on a writ of mandate, the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial, credible and competent evidence. This limitation, however, does not apply to resolution of questions of law where the facts are undisputed. In such cases, as in other instances involving matters of law, the appellate court is not bound by the trial court's decision, but may make its own determination." (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 502.)
Code of Civil Procedure section 1085, subdivision (a), provides in pertinent part: "A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . ." Code of Civil Procedure section 1086 provides in pertinent part: "The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law."
As we shall discuss, the resolution of MVP's traditional mandamus contention turns on the application of the exhaustion doctrine. Regarding the applicability of the exhaustion doctrine, we apply a de novo standard of review. (Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873.)
A. Nonconforming Use
MVP argues asphalt production falls under the ordinance's definition of "paving materials" rather than "mining," and "paving materials" land use is allowed only in industrial or heavy commercial districts, not in the RF-MR district where the quarry was situated.
To put this contention in context, we review some basics. "A legal nonconforming use is one that existed lawfully before a zoning restriction became effective and that is not in conformity with the ordinance when it continues thereafter." (Hansen, supra, 12 Cal.4th at p. 540, fn. 1.) A legal nonconforming use is sometimes called a "vested right." (Ibid.) "Zoning ordinances and other land-use regulations customarily exempt existing uses to avoid questions as to the constitutionality of their application to those uses. 'The rights of users of property as those rights existed at the time of the adoption of a zoning ordinance are well recognized and have always been protected.' [Citation.] [¶] Accordingly, a provision which exempts existing nonconforming uses 'is ordinarily included in zoning ordinances because of the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses.' [Citations.] The exemption may either exempt an existing use altogether or allow a limited period of continued operation adequate for amortization of the owners' investment in the particular use. [Citations.] [¶] When continuance of an existing use is permitted by a zoning ordinance, the continued nonconforming use must be similar to the use existing at the time the zoning ordinance became effective. [Citations.] Intensification or expansion of the existing nonconforming use, or moving the operation to another location on the property is not permitted. [Citations.] 'In determining whether the nonconforming use was the same before and after the passage of a zoning ordinance, each case must stand on its own facts.' [Citations.] [¶] Nonuse is not a nonconforming use, however, and reuse may be prohibited if a nonconforming use has been voluntarily abandoned." (Id. at p. 552.)
Such an exemption was included in the County's 1995 Ordinance, which provides in pertinent part: "A nonconforming use of land may be continued, transferred or sold, provided that no such use shall be enlarged or increased, nor be extended to occupy a greater area than that which it lawfully occupied before becoming a nonconforming use. Additionally, non-conforming uses shall not be enlarged, extended[,] expanded nor increased to occupy a larger area, nor a more intensive use than that which it was characterized by in the prior twelve months." (1995 Ordinance, § 17.60.120(A).)
B. Exhaustion of Administrative Remedies
MVP argues the trial court erred in concluding the nonconformance issue was precluded by MVP's failure to exhaust administrative remedies. We agree with the trial court.
As this court has observed, " '[t]he requirement of exhaustion of administrative remedy is founded on the theory that the administrative tribunal is created by law to adjudicate the issue sought to be presented to the court, and the issue is within [the administrative tribunal's] special jurisdiction. If a court allows a suit to go forward prior to a final administrative determination, it will be interfering with the subject matter of another tribunal.' " (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 589 (Tahoe Vista) [construing statutory exhaustion requirement under CEQA].) The exhaustion doctrine is a jurisdictional prerequisite rather than a matter of judicial discretion. (Ibid.) "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." (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198 (Coalition).)
MVP's reply brief says the exhaustion doctrine is not jurisdictional because it has multiple exceptions concerning which courts exercise discretion. However, MVP forfeits the point by withholding it until the reply brief, and by failing to offer any factual or legal analysis on any legally-recognized exception. (Badie, supra, 67 Cal.App.4th at pp. 784-785.) MVP merely claims the County was apprised of the zoning issue by Blodger, Bloomfield, and MVP's attorney.
In order for the exhaustion doctrine to apply, there must be a clearly defined administrative procedure for resolving complaints (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 702), such as the one here.
MVP presents a double-barreled argument: (1) there was no remedy to exhaust and thus the exhaustion doctrine does not apply, and (2) it exhausted administrative remedies.
1. Applicability of the Exhaustion Doctrine
MVP argues the exhaustion doctrine does not apply here because there was no administrative procedure available to challenge the County's internal memorandum in 2005 opining that Chevreaux had vested rights. To the extent MVP suggests the 2005 memorandum rendered futile any subsequent challenge to the 2007 decision based on zoning nonconformance, MVP cites no evidence or authority supporting such a position.
MVP complains it had no opportunity for input before the planning director made his 2007 determination that the 1972 CUP remained valid. However, the point is inconsequential because the 1995 Ordinance did afford a procedure in which MVP or any citizen could have raised a zoning violation challenge to the planning director's 2007 determination that "asphalt operations at the current Meadow Vista/Combie Chevreaux Aggregates, Inc., facility are a currently legally permitted use." And one of MVP's eventual participants, Mr. Goodwin, did take advantage of the procedure but failed to raise the issue of whether asphalt production was in conformance with the 1995 Ordinance and instead set forth seven grounds for appeal related to the lapse issue.
The appeal procedure set forth in the ordinance provides in pertinent part: "Decisions of the Planning Director . . . and Planning Commission may be appealed by an applicant or by any aggrieved person as provided by this section. [Citation.] [¶] . . . [¶] . . . After an appeal has been scheduled for consideration by an appellate body, the appellate body shall conduct a public hearing pursuant to the provisions of Section 17.60.140 (Public hearing). At the hearing (a hearing conducted 'over again'), the appellate body shall initiate a discussion limited to only those issues that are the specific subject of the appeal, and, in addition, the specific grounds for the appeal. . . ." (1995 Ordinance, § 17.60.110(D)(4)(a), italics added.)
In Tahoe Vista, this court strictly construed an identical provision of the Placer County Code (which bore a different section number at that time). (Tahoe Vista, supra, 81 Cal.App.4th at p. 592.) There, the County determined an EIR under CEQA was not required for a proposed development project. At the planning commission hearing, the petitioner argued an EIR was required. In appealing the planning commission decision to the board of supervisors, the petitioner listed only parking inadequacy in violation of the community plan as a ground for appeal. (Id. at pp. 582-584.) On appeal, the petitioner raised the CEQA issue for the first time, and this court concluded that, by failing to include that issue in the appeal to the board, the petitioner had failed to exhaust administrative remedies as to that issue. (Id. at pp. 591-593.)
Here, Goodwin filed the administrative appeal of the planning director's determination to the planning commission. But while Goodwin's notice of administrative appeal set forth seven separate grounds related to the lapse issue, he did not contend that the 1995 Ordinance no longer allowed asphalt production at the quarry.
MVP argues, "Tahoe Vista stands for the proposition that when an agency has provided adequate due process, the public's failure to exhaust according to the agency's administrative procedures is grounds for precluding judicial review on the merits." MVP argues that due process was not provided in this case, because the planning director's 2007 determination said nothing about zoning conformity, and the administrative appeal therefore had to be limited to the lapse issue, and county counsel said at the board hearing that the hearing was limited to the lapse issue. However, the planning director's 2007 determination was in response to a request by Chevreaux as to whether its 1972 CUP was currently valid in 2007. This necessarily put in issue the ordinance that had been adopted in 1995 and was still in effect in 2007. Furthermore, the planning director expressly determined the asphalt operations "are a currently legally permitted use." This necessarily determined that the 1972 CUP conformed with the then-current zoning ordinance. MVP cites nothing that would have precluded it from raising the zoning nonconformance issue in the notice of administrative appeal to the planning commission and then to the Board.
As to the narrowness of the board hearing, MVP ignores the fact that Goodwin's notice of administrative appeal of the planning director's determination did not raise zoning nonconformance as a ground for the administrative appeal. That is why county counsel said the hearing was limited to the lapse issue and why there is a failure to exhaust administrative remedies in this case.
MVP argues the County failed to give notice of its own ordinance pursuant to section 17.02.050(F) of the 1995 Ordinance, which allowed "[a]ny official interpretation by the Planning Director" to be "appealed to the Community Development/Resource Agency Director" before being appealed to the planning commission under section 17.60.110. MVP argues the County thus "short-circuited" what should have been a noticed public hearing before the community development agency at which the zoning nonconformance issue could have been explored. However, we do not apply the failure to exhaust administrative remedies doctrine due to a failure to pursue an administrative appeal with the community development agency. The failure in this case was the failure of the initial administrative notice of appeal to mention the nonconformance issue as a ground for the appeal.
MVP suggests the trial court's ruling on failure to exhaust administrative remedies forecloses any citizen's zoning challenge to Chevreaux's activities, in effect giving the 2007 lapse determination improper res judicata or collateral estoppel effect. No such issue is presented in this appeal and we need not decide the matter.
2. MVP's Contention that it Exhausted Administrative Remedies
MVP argues that administrative remedies on the zoning conformance issue were sufficiently exhausted in three ways. We disagree with each argument.
First, MVP cites the February 14, 2005, letter from John Blodger to the planning department, raising questions about the proposal by Teichert to expand asphalt operations at the quarry. Even assuming Blodger adequately framed a nonconformance argument, he sent this letter to the County more than two years before the planning director's 2007 determination that asphalt production was a legally permitted use in response to Chevreaux's query. No one asked the planning commission to consider the Blodger letter or this issue in connection with the 2007 administrative proceedings. Therefore, the Blodger letter was not connected to the planning director's determination which is at issue in this appeal. Nor does MVP's pleading in this lawsuit complain about the County's lack of response to the Blodger letter. The pleading mentions only a September 2005 letter from a law firm to the County "requesting that the County take action with respect to Chevreaux'[s] quarry and proposed asphalt operations at the Meadow Vista quarry. The County did not respond to this letter." MVP does not rely on any such letter in its argument about exhaustion of administrative remedies. Moreover, Teichert withdrew its attempts, and the matter was seemingly resolved at least temporarily by the withdrawal. Therefore, MVP fails to show that the Blodger letter sufficed to exhaust administrative remedies on a claim of zoning nonconformance that should have been made two years later in 2007.
Second, MVP cites comments by MVP member Rex Bloomfield to the planning commission at the hearing regarding the planning director's 2007 determination. According to MVP, Bloomfield said asphalt production was not a permitted use. MVP asserts in its briefing that county counsel "instructed the public that the hearing was limited to the proper interpretation of the lapse ordinance as applied to Chevreaux's permit," as if county counsel had cut off Bloomfield. But before county counsel spoke, Bloomfield finished his comments and four more people spoke on behalf of MVP, Mr. Prigmore, Mr. Blodger, Dr. Foreman, and Mr. Chardella. None of them, including Blodger, brought up the nonconformance issue. County counsel made no comments prior to or during the presentations by the MVP representatives that would have discouraged them from making whatever comments they desired, let alone caused them not to comment on the nonconformance issue. After the MVP representatives spoke, a representative from Chevreaux spoke. It was at this point that county counsel made the comments MVP implies chilled the discussion. In context, it appears his comments were directed to the commissioners as well as the audience. The record does not support the implication that somehow the MVP representatives were cut off from commenting about nonconformance. In fact, they commented about matters other than lapse during their presentation, including: the impact of asphalt operations on the environment, air quality and public health; population growth and density, the increase in the number of residences and schools in the area; the need for a determination that the CUP was not vested; and criticism of the planning director for not consulting the community before making his determination. In any event, Bloomfield's comment made during his historical overview of the Chevreaux operation does not satisfy the exhaustion requirement. (See fn. 27, ante.) Exhaustion requires " ' "full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings." ' " (International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1213, italics added.) Bloomfield's comment cannot be characterized as a "full presentation" on the nonconformance issue. Moreover, the matter was not raised again with the Board.
Bloomfield's comments regarding nonconformance are included with other comments he made and hardly highlighted the issue for the planning commission. During his predicted seven minute presentation, encompassing nearly six transcript pages of comments, Bloomfield discussed his understanding of the history of the Chevreaux operation. He began in 1972. On the pages cited by MVP, pages 475-476, Bloomfield said: "In 1995 the County adopts a new zoning ordinance that supersedes previous rules and regulations. If the law is written that says because we're trying to conserve fuel, you only can drive 55 miles [per hour] on I-80, and you are driving along at 65, and the highway patrolman pulls you over and says you are exceeding the limit, you just don't say, 'Well, the law two years ago said 65, so I'm following that law.' [¶] The County's Board of Supervisors adopted a zoning ordinance, and in that zoning ordinance it clearly states a nonconforming use must be in continuous operation for one year to maintain grandfathered rights, and it is the applicant's obligation to prove that nonconforming use. That asphalt plant wasn't in operation, and he did not prove that he was now following the new code just adopted by the Board. [¶] Same thing happened in 1996. The Meadow Vista Community Plan is adopted, and the zoning applied to that gravel operation doesn't permit an asphalt plant. You must apply for a permit. Again, does not establish its use, does not apply for a permit. But that's the new zoning applied in 1996. [¶] So now we're here at 2007, and Placer County really does recognize that it has failed to follow past practice, their own rules and regulations, and the zoning codes. But 20 years ago the good old boy network created a document that contradicts all this good planning. The County now is just doing some CYA because they are at risk. By making a decision, they have some liability. So doing a favor for an old boss has now -- could cost the County; however, we need to do what is right. Continuing to blindly support a letter which clearly violates County codes and past practice will only lead to further difficulties." It appears that MVP relies on the portion of the statement we have italicized in contending Bloomfield's comments served to exhaust administrative remedies.
County counsel told the commissioners and the audience: "Let me make a few observations here since you have heard first the Planning Director present his explanation of his interpretation and the appellant and [n]ow Chevreaux. And I think one of the things I want to do is to set the stage for why we're here today and what the decision is before the Commission. [¶] . . . I know there is a number of thoughts probably in the audience about what you are here for and what you can do and what the result of this proceeding today can be, but I think it's actually quite narrow. The issue before you is quite narrow and your authority to take action is quite narrow. [¶] The first thing is this is not the time to determine whether or not this is a . . . 'vested entitlement.' It's not a hearing on the property right and it's not a hearing on whether it's vested. It's obviously operated in the past. And as Mr. Prigmore referred to, several years ago when the Teichert issue came up, I did review this issue and determine that, in fact, use had become vested, and we would have to exercise due process in order to unring the bell. So this is not the time to determine whether or not this is vested. [¶] This is also not an examination of the environmental consequences of any operation. The public obviously is free to discuss that, but it's not a review of the environmental consequences of their past operations, their present operations, or their future operations. That is simply not in the purview here today for the Planning Director's interpretation. [¶] This determination today will not allow a new use. It will not allow, as [the planning director] said, a use that is different in scope or nature than was originally permitted under [the 1972 CUP]. So it also will not predetermine what they may or may not do in the future. Again, that will have to be determined by what they choose to do in the future. [¶] And finally, this is not a revocation hearing. . . . [¶] The reason you are here is because the Planning Director made an interpretation under the County code, and I'll read that to you. [Reads section 17.02.050(e) related to the planning commissioner's authority to the commission]. [¶] So what the Planning Director did is issue an official determination at the request of the permit holder on the narrow issue of whether or not a lapse may occur for an intermittent use. So that is the narrow issue that's before you." Thereafter county counsel read the lapse statute, restated the issue, stated that the commission was to exercise its own judgment as to whether the planning director's interpretation was correct and if the commission agreed with the planning director, the issue could then be appealed to the Board.
More importantly, nonconformance was not raised at the first stage of the administrative process when the notice of appeal was submitted by Goodwin. By the time Bloomfield commented at the planning commission meeting, it was already too late to raise the new zoning issue. It should have been raised in Goodwin's written notice of administrative appeal of the planning director's determination or a separate notice of appeal could have been filed.
Third, MVP asserts that it raised the zoning issue on November 29, 2007, in a letter from its attorney asking the County to make a legal determination on the zoning nonconformance issue. The County did not respond to this letter. As we have noted, the trial court declined to take judicial notice of this letter and we agree with the trial court's ruling. Moreover, as we have also noted, even as late as the day before the hearing, in his November 6, 2007 letter, MVP's attorney did not argue that the quarry was no longer zoned for asphalt production under the 1995 Ordinance. In any event, the November 29, 2007, letter was simply too late. The administrative appeal concluded on November 7, three weeks earlier.
We conclude MVP failed to exhaust administrative remedies.
Moreover, even assuming for the sake of argument that the exhaustion doctrine does not apply in this situation, as we shall explain, MVP fails to show grounds for reversal.
C. Ministerial Duty vs. Discretionary Action
MVP devotes most of its brief to arguing it was entitled to a writ of traditional mandamus under Code of Civil Procedure section 1085, but we agree with respondents that MVP had no viable claim for traditional mandate because MVP complained about discretionary action, and traditional mandate will not lie to compel an agency to exercise discretion in a particular way.
Traditional mandamus under Code of Civil Procedure section 1085 is available only to " ' " ' "compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station." ' " '" (300 DeHaro Street Investors v. Department of Housing & Community Development (2008) 161 Cal.App.4th 1240, 1255.) "Mandate will not issue to compel action unless it is shown 'the duty to do the thing asked for is plain and unmixed with discretionary power or the exercise of judgment.' " (Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791, 796.) " 'A ministerial act has been described as "an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act's propriety or impropriety, when a given set of facts exists." [Citation.] On the other hand, discretion is the power conferred on public functionaries to act officially according to the dictates of their own judgment.' " (Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002-1003.)
Here, MVP argues the zoning ordinance "require[s] the County to take discretionary action prior to allowing the non-conforming use to continue, including a review of Chevreaux's asphalt operations that has thus far never occurred." (Italics omitted & italics added.) As the italicized language from MVP's brief illustrates, MVP acknowledges it wants the County to take discretionary action. Discretionary action is not a proper subject of traditional mandate.
MVP argues traditional mandamus is appropriate to command the County to exercise its discretion under the proper legal standard, and the proper legal standard according to MVP is that asphalt processing is a nonconforming use. MVP argues the County's ministerial duty is to treat asphalt processing as a nonconforming use under the zoning ordinance and to conduct a due process hearing with procedural protections. (Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 629.) MVP disputes Chevreaux's argument that the asphalt processing is a "conforming use" under the zoning ordinance.
As earlier indicated, MVP argues the current RF-MR zoning of the quarry, which allows for surface mining, does not extend to asphalt production, which falls within the definition of "paving materials," which the ordinance limits to industrial or heavy commercial districts. (1995 Ordinance, § 17.04.030.) However, as we have noted, these are matters which MVP could have and should have submitted to the County in the administrative appeal. Again, MVP's argument on this point illustrates why it was important to exhaust administrative remedies, to develop an administrative record on the County's interpretation of asphalt production as mining or as paving materials.
To the extent MVP suggests the County breached a ministerial duty by failing to conduct an investigation whether Chevreaux had vested rights under a framework for nonconforming use, rather than rights based on the 1972 CUP, this challenge is related to the contention that asphalt operation is a nonconforming use. MVP's opening brief does not cite any authority that a nonconforming use based on a CUP is different, for purposes of MVP's appeal, from a nonconforming use that is not based on a CUP. In any event, even assuming a different framework, our affirmance of the County's determination that the 1972 CUP did not lapse would render it unnecessary to consider whether operations could continue as a nonconforming use not based on a CUP.
MVP cites Ballard v. Anderson (1971) 4 Cal.3d 873, 876-877, for its statement that where the matter is one of great public interest, courts have deemed it appropriate to entertain the proceedings. However, the court in Ballard addressed the issue of mootness. Mootness is not the issue in MVP's claim for traditional mandate.
Since MVP does not show any failure by the County to comply with any ministerial duty, MVP has no viable claim for traditional mandate under Code of Civil Procedure section 1085.
We conclude MVP fails to show grounds for reversal regarding traditional mandamus.
V. Complaint for Declaratory Relief
A trial court's exercise of discretion to deny declaratory relief is reviewed for abuse of discretion. (Code Civ. Proc., §§ 1060-1061; Filarsky v. Superior Court (2002) 28 Cal.4th 419, 433.)
MVP argues declaratory relief on the status of Chevreaux's nonconforming use was "appropriate" under Code of Civil Procedure section 1060. However, "[t]he doctrine of exhaustion of administrative remedies may not be circumvented by bringing actions other than administrative mandamus such as actions for declaratory relief [citation] . . . . Judicial intervention is premature until the administrative agency has rendered a final decision on the merits. Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings." (Bleeck v. State Board of Optometry (1971) 18 Cal.App.3d 415, 432; accord, Walker v. Munro (1960) 178 Cal.App.2d 67, 71-72 [exhaustion doctrine applies to declaratory relief actions]; cf. Hoyt v. Board of Civil Service Comrs. (1942) 21 Cal.2d 399, 404 [declaratory judgment procedure cannot be "interpreted so as to extend the jurisdiction of the courts or broaden the liability which may be imposed upon governmental bodies"]; Coachella Valley Unified School Dist. v. State of California (2009) 176 Cal.App.4th 93, 126 [same].)
Code of Civil Procedure section 1060 provides in pertinent part: "Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought."
"An aggrieved party is not required to exhaust administrative remedies before bringing a declaratory relief action where the party can positively state what the administrative agency's decision would be." (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 362.) But that exception cannot apply here.
Moreover, even assuming declaratory relief may have been appropriate, Code of Civil Procedure section 1061 states: "The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances." MVP's entire argument concerning declaratory relief consumes only a page and a half of its 65-page opening brief on appeal, and MVP offers no argument to show the trial court abused its discretion in denying declaratory relief. In its reply brief, MVP says the trial court never exercised its discretion but instead ruled there was no actual controversy based on its finding that no asphalt processing was currently taking place. However, the trial court stated it would not issue a declaration relating to new operations, as requested by MVP, because no such operations were proposed. As to the other matters for which MVP sought judicial declaration, the trial court exercised its discretion to deny relief as unnecessary, given the court's disposition of the other claims.
To the extent MVP claims that Chevreaux had expanded, or intended to expand, operations based on Chevreaux's view that the 1972 CUP has no limit on the scope or timing of operations, such matters are factual matters for which MVP should have developed a factual record. MVP has not done so.
MVP fails to show grounds for reversal.
DISPOSITION
The judgment is affirmed. Respondent County and real party in interest Green Vista Holdings, LLC, shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
MURRAY, J. We concur: HULL, Acting P. J. HOCH, J.