This case requires us to consider whether the broad definition of "project" that mandates more extensive CEQA review also applies to statutory exemptions. It additionally presents questions of state law preemption, the limits of a city's contractual authority, and the abdication of a government entity's police power.
The County of Ventura and City of Fillmore (collectively, Appellants) appeal from the judgment denying their petition for writ of mandate and request for injunctive relief, and denying, in part, their request for declaratory relief. Appellants contend the trial court erred when it determined
We conclude that the beach restoration project, including its incorporation of Respondents' settlement agreement, is a single "project" that is statutorily exempt from CEQA review. The traffic restrictions in the agreement are not preempted by state law, nor do they constitute extraterritorial regulations. Instead, they represent a valid exercise of Moorpark's contracting authority. But because BBGHAD abdicated its police power in portions of the agreement, we conclude those provisions are void or subject to future modification. We reverse the judgment in part, affirm in part, and remand.
FACTUAL AND PROCEDURAL HISTORY
The state formed BBGHAD to restore a 46-acre stretch of Broad Beach in the City of Malibu. The beach restoration project requires 300,000 cubic
Each of the five major deposits will generate 44,000 one-way truck trips over the course of three to five months. BBGHAD will obtain sand for the project primarily from the Grimes Rock and CEMEX quarries, both located adjacent to State Highway 23 between Fillmore and Moorpark. It may also obtain a limited amount of sand from the P.W. Gillibrand quarry.
During the project approval process, Moorpark officials expressed concern that hauling sand through or adjacent to their city would negatively impact residents. Respondents held discussions to address Moorpark's concerns, which culminated in a settlement agreement. Provisions of the agreement relevant to this appeal include:
Section 2: "Trucks used for sand hauling in connection with the Project are prohibited from using Walnut Canyon Road, Grimes Canyon Road south of Broadway Road[,] or any other highway, road[,] or street in or immediately adjacent to the City of Moorpark, except in cases of 'emergency,' as defined in Section 5."
Section 3: "All trucks used for sand hauling in connection with the Project shаll not be staged or parked in [Moorpark] or immediately adjacent to [Moorpark], at anytime [sic ] for the duration of the Project."
Section 4: "All sand hauling trucks for the Project shall use Grimes Canyon Road (State Route 23) to State Highway 126 through Fillmore as the haul route from the Grimes Rock quarry and/or the CEMEX quarry to the Project site[,] and the same route from the Project site to the [quarries]."
Section 5: "An 'emergency' exists, for purposes of Sections 2 and 6, only when a first responder ... determines all lanes on State Highway 126 west of State Highway 23 or State Highway 23 north of the quarry are closed to truck traffic. An emergency ceases to existwhen a first responder determines that at least one lane becomes available to truck traffic on [the] portions of State Highway 126 and State Highway 23 referenced above."
Section 7: "The haul route prohibitions shall apply to the BBGHAD's use of the Grimes Rock Quarry and CEMEX Quarry throughout the duration of the Project. The BBGHAD shall provide [Moorpark] notice of the commencement and completion of each of the sand deposition events for the Project."
Section 8: "The BBGHAD shall include the haul route prohibitions in any agreements entered into between [it], the quarries, and any contracted haulers[,] and require[ ] contracted haulers to include such terms in their agreements with their subcontracted haulers involved in the Project...."
Section 26: "This Agreement may be amended or modified only by the mutual agreement of the Parties and only when all Parties memorialize in writing their consent to amend or modify."
The Coastal Commission approved a coastal development permit for the beach restoration project, including its incorporation of Respondents' settlement agreement, in October 2015. The State Lands Commission approved a lease for the project the following year.
Appellants challenged the project in a petition for writ of mandate and request for injunctive and declaratory relief. The trial court found the project statutorily exempt from CEQA. It also determined that the settlement agreement is neither preempted by the Vehicle Code nor an improper attempt by Moorpark to regulate traffic outside city limits. But the court did find that BBGHAD improperly contracted away to Moorpark its police power in portions of the agreement. It declared void the first sentence of section 7, declared void all of section 26 to the extent it prohibits BBGHAD from modifying haul routes in response to changed circumstances, and found section 8 subject to modification should hauling routes change in the future.
DISCUSSION
CEQA
Appellants contend the settlement agreement is distinct from BBGHAD's beach restoration activities, and is thus a separate, nonexempt CEQA project. We disagree.
CEQA establishes a three-tier process to ensure that public agencies inform their decisions with environmental considerations. ( Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007)
The settlement agreement between Moorpark and BBGHAD is part of the whole of the action of the beach restoration project. The state formed BBGHAD to address beach and sand dune erosion at Broad Beach. (See § 26525 [purposes of a geologic hazard abatement district].) BBGHAD's mandate is to make "improvements" to the beach that address "geologic hazards," including beach and dune erosion. (See § 26580 [improvements a district may undertake].) These improvements require depositing more than 1.5 million cubic yards of sand at the beach over a 20-year period. The agreement that requires haulers to drive their payloads north from the quarries, through Fillmore, and west to Broad Beach is incidental to BBGHAD's beach restoration activities, and therefore also qualifies as an improvement undertaken by BBGHAD. (§ 26505 ["improvement" includes all activities "necessary or incidental to" abating "a geologic hazard"]; see also § 26574, subd. (d) [authorizing BBGHAD to "[e]xercise all powers necessary or incidental to carry out" the restoration project].) It is one piece of a single, coordinated endeavor to address erosion at Broad Beach, and is thus part of the whole of the action. ( RiverWatch , supra ,
Applying the definition of "separate projects" set forth in Banning Ranch Conservancy v. City of Newport Beach (2012)
It is also exempt from CEQA. (Cf.
Appellants contend this is an absurd result since "the Legislature intended [CEQA] to be interpreted in such manner as to afford the fullest possible protection to the environment...." ( Friends of Mammoth v. Board of Supervisors (1972)
We therefore find no absurdity in holding that the broad definition of "project" employed in cases that have mandated expanded environmental review also applies in cases where, as here, using that definition will result in
Preemption
Appellants next contend the settlement agreement is void because Vehicle Code section 21 prеempts Moorpark's ability to control project traffic. We again disagree.
A city may enact and enforce, within its limits, only those ordinances and regulations that do not conflict with state law. ( Cal. Const., art. XI, § 7.) If a local ordinance or resolution conflicts with state law, it is void. ( Sherwin-Williams Co. v. City of Los Angeles (1993)
State law preempts local traffic control ordinances and resolutions. Vehicle Code section 21, subdivision (a) provides: "[A] local authority shall not enact or enforce any ordinance or resolution on the matters covered by this code, including ordinances or resolutions that establish regulations or procedures for, or assess a fine, penalty, assessment, or fee for a violation of, matters covered by this code, unless expressly authorized by this code." Whether this statute preempts the traffic restrictions set forth in the settlement agreement presents a question of statutory construction for our independent review. (
Vehicle Code section 21 is inapplicable here. The settlement agreement is a contract, not an ordinance or resolution. ( Weddington Productions, Inc. v. Flick (1998)
Nor does the settlement agreement have the effect of an ordinance or resolution that conflicts with the purpose of the Vehicle Code. The purpose of
None of the cases on which Appellants rely suggests that Vehicle Code section 21 is triggered here. In each case, a local government or homeowners' association enacted an ordinance or installed physical barriers to block traffic. ( Rumford v. City of Berkeley (1982)
Extraterritorial regulation
Appellants contend the settlement agreement is an unlawful attempt by Moorpark to exercise its regulatory powers outside city limits under the guise of its contractual authority. We are not persuaded.
Subject to limited exceptions not applicable here, a city has "no extraterritorial powers of regulation," and "may not exercise ... governmental functions beyond its corporate boundaries." ( City of Oakland v. Brock (1937)
There is no extraterritorial regulation problem here. Trucks' use of roads can create a public nuisance. ( City & Co. of S.F. v. Safeway Stores, Inc. (1957)
Abdication of police power
Appellants contend BBGHAD abdicated its police power when it granted Moorpark the power to dictate the sand hauling routes BBGHAD's contractors must use during the life of the project, which renders the settlement agreement void in its entirety. In its cross-appeal, Moorpark counters that there was no abdication of BBGHAD's police power, thus the trial court erred when it declared portions of the agreement void. We conclude that portions of the agreement are void or subject to modification.
BBGHAD has the authority to "enter into contracts and agreements ... in furtherance of the" beach restoration project. (§ 26579.) And as a creature of state law, BBGHAD may exercise a portion of the state's police power. ( Rodeo Sanitary Dist. v. Board of Supervisors (1999)
Sections of the settlement agreement are void because they surrender BBGHAD's discretion to alter haul routes in the future. The first sentence of section 7 states that "[t]he haul route prohibitions shall apply ... throughout the duration of the [p]roject." The last clause of section 3 prohibits those hauling sand in connection with the beach restoration project from staging or parking trucks in or adjacent to Moorpark "at anytime [sic ] for the duration of the [p]roject." These terms restrict BBGHAD's ability to respond to any change in circumstances during the 20-plus years of the project. A government entity may not surrender, for a potentially indefinite period of time, its authority to exercise discretion on matters within its police power. ( COMPAC , supra , 62 Cal.App.4th at pp. 739-741,
Section 26 provides that the agreement "may be amended or modified only by the mutual agreement of the [p]arties and only when all [p]arties memorialize in writing their consent to amend or modify." This section gives Moorpark veto power over BBGHAD's authority to alter the haul routes to reflect changed circumstances. But the Public Resources Code vests those powers in BBGHAD. (See § 26580.) Thus, to the extent section 26 prohibits BBGHAD from approving or disapproving modifications to haul routes in light of changed circumstances, it is void. ( Trimont Land , supra ,
Respondents also assert they retain the authority to alter haul routes by invoking the emergency exception set forth in section 5 if changed circumstances necessitate haul route modifications. But section 5 provides that an emergency exists only when a first responder determines that all lanes of State Highway 23 north of the quarries or all lanes of State Highway 126 west of Fillmore are closed to trucks, and ceases when at least one lane on both highways is open to truck traffic. By its very terms, the exception is temporary, and would only
There are many scenarios in which BBGHAD cannot invoke the emergency exception. For example, BBGHAD cannot invoke the exception if traffic congestion increases along the designated haul routes or if there is a dramatic slowdown or partial road closure. BBGHAD cannot invoke the exception if increased costs or logistical issues at the quarries or project site require the use of a different route. And BBGHAD cannot invoke the exception should its board of directors or outside authorities decide that the additional pollution generated from the mandated use of a more circuitous route is unacceptable. In short, the settlement agreement, as written, does not allow for modifications to respond to changes in circumstances that may arise during the project's lifespan.
Respondents cite cases in which government entities did not improperly contract away police power because they preserved discretion to modify the applicable contract or ordinance in light of changed circumstances. (See 108 Holdings, Ltd. v. City of Rohnert Park (2006)
Moorpark argues the entire agreement is valid because BBGHAD had statutory authority to enter it. But simply because BBGHAD had the authority to execute the settlement agreement does not render all of its terms valid ( Civ. Code, § 1550 [capacity to contract and object of contract are different elements] ). By statutе, BBGHAD's police power includes the designation of sand hauling routes. (§ 26580.) It must therefore retain authority to modify those routes in response to changed circumstances.
Finally, Moorpark argues the settlement agreement constitutes a valid exercise of BBGHAD's authority because project operations are limited to a total of 15 to 25 months over the span of 20 years. We disagree with Moorpark's characterization of hauling operations. If approved by BBGHAD and applicable permitting agencies, the project may last longer than 20 years, rendering thе agreement's duration indefinite. And while the five main sand deposits may occur over a period of 15 to 25 months, the project may also entail an unspecified-and potentially unlimited-number of supplemental deposits.
More significantly, Moorpark did not raise this argument in the proceedings below. As a theory of defense, an argument may not be asserted for the first time on appeal. ( Bardis v. Oates (2004)
But even if Moorpark had preserved its argument, it would not save the settlement agreement. Moorpark relies on our observation in SMART , supra ,
Nor do the additional cases it cites. All of these cases turn on the government's abdication of power, not the duration of that abdication. (See Summit Media LLC v. City of Los Angeles (2012)
Severability
Because we have determined that portions of the settlement agreement are invalid, we must determine whether the agreement is void in part or in its entirety. Our goal in construing the agreement is to give effect to the parties' mutual intentions ( Minkler v. Safeco Ins. Co. of America (2010)
Where an agreement has several objects, some of which are lawful and others of which are unlawful, it is "void as to the latter and valid as to the rest." ( Civ. Code, § 1599.) Wе look to the various purposes of the agreement to determine if it is severable. ( Armendariz v. Foundation Health Psychcare Services, Inc. (2000)
They would. The settlement agreement hаs at least two purposes: (1) the determination of permissible and prohibited sand hauling routes, and (2) the duration of and limited discretion to modify the route restrictions. Only the latter of these purposes is unlawful. Because that can be extirpated from the agreement, the former may remain in force. ( Trimont Land , supra ,
Severance also gives effect to Respondents' expressed intentions. Section 23 of the agreement provides: "Should any provision of this Agreement be declared or determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the invalidity, illegality, or unenforceability shall not affect any other provision of the Agreement and the remainder of the Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been included." This clause "evidence[s] [Respondents'] intent that, to the extent possible, the valid provisions of the [agreement] be given effect, even if some provision is found to be invalid or unlawful." ( Baeza v. Superior Court (2011)
We reverse the portion of the judgment that grants Appellants' request for declaratory relief, and remand the matter to the trial court with directions to vacate the declaratory relief previously granted and to enter new and different declaratory relief that: (1) declares void the last clause of section 3 and the first sentence of section 7 of the settlement agreement; (2) declares void section 26 to the extent it prohibits BBGHAD from approving or disapproving modifications to haul routes in light of a future change in circumstances; and (3) requires the haul routes identified in the first sentence of section 2 and the first sentence of section 8, the prohibited staging and parking areas identified in section 3, the permitted haul routes identified in section 4, and the permitted emergency routes identified in the last sentence of section 5 to be subject to modification should BBGHAD need to alter haul routes in the future in response to changed circumstances. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(3).)
We concur:
GILBERT, P.J.
YEGAN, J.
Notes
Based on our conclusion, we deny as moot Moorpark's October 26, 2017, motion to consider postjudgment evidence.
Even if it were not, the same analysis would apply: Among BBGHAD's statutory powers is making improvements to lands. (§ 26580.) The hauling of sand qualifies as an "improvement." (§§ 26505, 26574, subd. (d).) We analyze BBGHAD's alleged abdication of that statutory power identically to the alleged abdication of a police power. (See Trimont Land Co. v. Truckee Sanitary Dist. (1983)