The Third District Court of Appeal published an important new case on September 16, 2020—Parkford Owners for a Better Community v. County of Placer, __ Cal.App.5th __ (2020) (Case No. C087824)—holding that a project opponent’s challenge to the expansion of a development project was moot given that construction was nearly complete. The case distinguishes other leading cases addressing “mootness” in the land use and CEQA context and provides important insights for those involved in the development process.
By way of brief background, California courts will decide only “justiciable” controversies, under the principle that courts will not entertain an action that is not founded on an actual controversy. A controversy is “ripe” when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made. But a case that presents a true controversy at its inception becomes moot if before decision it has, through act of the parties or other cause occurring after the commencement of the action, lost that essential character. Thus, in short, moot cases are those in which an actual controversy did exist but, by the passage of time or a change in circumstances, ceased to exist.
The case involved the expansion of a self-storage project in Granite Bay that had been in operation for more than 20 years pursuant to a planned unit development the County approved more than 30 years ago. The self-storage facility was approved in the late 1990s through the modification of a conditional use permit approved as part of the underlying PUD. And the self-storage facility was expanded several times, including the 2016 expansion at issue in the case.
The project opponents filed suit some six months after the 2016 expansion project was approved and when its construction was close to completion. In particular, the opponents challenged the County’s issuance of the building permit, under both CEQA and the Planning and Zoning Law, and sought a writ of mandate directing the County to set aside its approval of the building permit and all related approvals, prepare and certify an EIR for the expansion project, and suspend all construction activity pending preparation and certification of an EIR.
The trial court rejected all of the opponent’s claims, in part because the opponent failed to establish either a likelihood of prevailing on the merits at trial or that the balance of interim harm favored issuance of a preliminary injunction. But the trial court did not directly rely on the mootness doctrine in its ruling.
The Court of Appeal cited a number of important general mootness principles, including that the key question in determining if a case is moot is whether the court can grant the plaintiff any effectual relief. If events have made such relief impracticable, the controversy has become “overripe” and is therefore moot and should be dismissed. Considering those principles, the Court held that the completion of the challenged expansion of the self-storage project rendered moot the opponent’s challenge to the County’s issuance of a building permit authorizing construction of the expansion.
The Court agreed that the case was like Wilson & Wilson v. City Council of Redwood City, 191 Cal.App.4th 1559 (2011), a reverse validation action including a CEQA challenge to a development project in which the court of appeal held the case became moot when a modified development project was completed. The Court reasoned that having operated the self-storage facility since 1999 and expanded the facility twice, all without any indication that the issuance of either the initial or expansion building permits triggered environmental review under CEQA or violated the Planning and Zoning Law, the real parties in interest here relied on the 2016 building permit to begin construction of the facility’s third expansion. Nothing in the record indicated they did so in bad faith or in an attempt to evade the requirements of CEQA or the Planning and Zoning Law.
The Court also distinguished cases like Hixon v. County of Los Angeles, 38 Cal.App.3d 370 (1974), a case involving a petition for writ of mandate to compel the county to obtain an EIR in connection with a street improvement project involving removal of a substantial number of roadside trees and replacement of those trees with a greater number of younger trees, because the trees had already been removed and replaced and no public benefit would be gained by requiring an EIR. And the Court distinguished Woodward Park Homeowners Assn. v. Garreks, Inc., 77 Cal.App.4th 880 (2000), a case where the developer proceeded with construction and completion of a car wash project after opponents filed their mandamus petition and despite the trial court’s order mandating the preparation of an EIR. Unlike in Hixon, where the trees were already cut down and could not be returned, the Court explained that ordering an EIR for the car wash project can afford the opponents effective relief because such an order could result in modification of the project to mitigate adverse impacts or even removal of the project altogether.
Parkford Owners for a Better Community is instructive for those involved in development disputes where project construction has proceeded in the face of land use and CEQA litigation. The case makes clear that the mootness doctrine will be in play, and development and operation of a project can proceed, in those cases where a project opponent fails to take steps to maintain the status quo pending resolution of its claims by seeking injunctive relief or a stay until the project is nearly complete.
Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.
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