Vichy Springs Resort, Inc. v. City of Ukiah (2024) 101 Cal.App.5th 46.
In Vichy Springs Resort, Inc. v. City of Ukiah (2024) 101 Cal.App.5th 46, the First District Court of Appeal held completion of a project did not render claims against a city alleging CEQA violations moot because effective relief was still possible. Additionally, the court held that Mendocino County’s determination that it lacked jurisdiction to issue a permit did not absolve the County of potential liability for CEQA violations because that determination was subject to review.
In 2017 the City of Ukiah (“City”) issued a permit to the Ukiah Rifle and Pistol Club. Inc. (“Club”) authorizing construction of a new shooting range (“Project”) on land in an unincorporated area of Mendocino County (“County”). Vichy Springs Resort, Inc. (“Vichy”), sued the County and the City, naming the Club as the Real Party in Interest. Vichy’s petition alleged the County violated CEQA by erroneously determining it had no regulatory responsibility for the Project, thereby allowing it to go forward without review, and that the City had committed multiple CEQA violations with regards to the permitting of the Project, most notably Vichy alleged the City improperly determined the project was not subject to CEQA. Vichy did not ask the trial court to enjoin the Project while the case was pending, and during this time the Club completed construction. The County demurred, arguing Vichy failed to state a claim against it, while the Club, joined by the City, demurred, arguing Vichy’s claims were mooted by the Project’s completion. The trial court sustained the demurrers without leave to amend. Vichy subsequently filed a timely notice of appeal.
Vichy Successfully Stated a Claim Against the County
On appeal the County argued that (1) Vichy’s petition did not describe a “project” subject to CEQA within the definition of Pub. Resources Code, § 21065 because the County did not issue a permit, and (2) that CEQA only applies to project approvals, and not to government inaction. The appellate court first clarified that the definition of a “project” under Section 21065 does not require that a permit be issued, rather it requires that a proposed activity “involve[] the issuance to a person of a…permit.” Because the County did not dispute the allegation that if the Project were subject to its authority a permit would be required, it was a “project” subject to CEQA. The court then addressed the inaction argument. Vichy alleged the County’s determination that it lacked regulatory authority over the Project allowed the Project to proceed without environmental review, in direct conflict with the stated purpose of CEQA. Though the Club did not apply for a permit, doing so would have been pointless so long as the County asserted it had no regulatory authority, and so whether the County’s determination was erroneous was reviewable. Having decided that it was not the County’s inaction in not issuing a permit that Vichy challenged, but rather the County’s determination that it was not responsible for issuing a permit, the court held that Vichy successfully stated a CEQA violation claim against the County, and accordingly reversed the trial court’s judgment.
Completion of the Project did not Moot Vichy’s Claims Against the City
A claim is moot when the decision of the reviewing court cannot have any practical impact or when there is no effectual relief that can be granted. In other words, when an actual controversy existed, but because of changed circumstances ceased to exist. In deciding if a claim is moot a court must determine whether it can grant the plaintiff any effectual relief.
The Club relied on Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714, and Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, to support its argument that once a project is complete the claim is inherently moot, however the court found those cases to be distinguishable from this case. In both those cases the appellant argued the environmental impacts of a project could be ameliorated or mitigated, but in neither case did the appellant explain how that could be achieved following completion of the project. Unlike those cases, Vichy included specific allegations about post-completion mitigation measures in its petition, showing that effectual relief was still possible.
The Club also argued the claims should be moot because Vichy did not seek a preliminary injunction staying construction while the original litigation was pending. Though the court acknowledged it would have been preferable for Vichy to ask for temporary injunctive relief, failure to do so was not sufficient to render the claims moot. Though the Club could not be faulted for proceeding with construction once Vichy failed to seek a preliminary injunction, there was no legal basis for concluding that a petitioner’s earlier failure to seek injunctive relief makes a CEQA claim moot in situations such as this where effectual relief remains available, and so the court reversed the trial court’s judgment.
Progress of a project can impact the feasibility of mitigation measures. In some cases, failure to seek a preliminary injunction may even make it impossible for the court to grant a reasonable remedy. But so long as possible mitigation measures still exist, neither progress, nor completion of a project, inherently render a CEQA violation claim moot.
Diane Kindermann is Owner of, Gage Marchini is an Associate Attorney and Jack Sandage is a Law Clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.