Judge Ronald F. Frazier, Case 37-2022-00043368-CU-TT-CTL 2023-10-06 Tentative Ruling

Judge: Ronald F. Frazier, Case: 37-2022-00043368-CU-TT-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 05, 2023

10/06/2023 08:30:00 AM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Ronald F. Frazier

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Civil - Unlimited Toxic Tort/Environmental Demurrer / Motion to Strike 37-2022-00043368-CU-TT-CTL LIVABLE SAN DIEGO VS CITY OF SAN DIEGO [E-FILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/22/2023

Respondent City of San Diego's Demurrer to First and Third Causes of Action is SUSTAINED without leave to amend. (ROA 18.) First Cause of Action – Constitutional Challenge to Build Better SD Petitioner's first cause of action, as alleged in its Amended Petition for Writ of Mandamus and Complaint for Declaratory Relief, is entitled 'U.S. Constitution and California Constitution.' Therein, Petitioner alleges the Build Better SD initiative is 'constitutionally invalid on its face.' (Amd. Pet. at ¶ 25.) Petitioner asserts 'Respondent cannot make the essential nexus between the imposition of DIF [Development Impact Fees] and the impact of the proposed development.' (Id. at ¶ 26.) Petitioner further alleges 'Respondent cannot show rough proportionality between the magnitude of the DIF and the effects of the proposed development.' (Id. at ¶ 27.) As the City points out in its moving papers, these allegations follow the framework set forth in Nollan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374.

Under the Nollan/Dolan test, certain development fees and exactions are subject to heightened scrutiny, wherein the court must first determine whether there is an 'essential nexus' between a legitimate state interest and the proposed fee. (Dolan at p. 386.) If so, the court must then evaluate whether there is at least 'rough proportionality' between the proposed fee and the anticipated impact of the proposed development. (Id. at pp. 388-391.) The City asserts the Nollan/Dolan test does not apply to the proposed development, noting the Amended Petition does not challenge development impact fees imposed as a condition of any individual permit application. Build Better SD imposes generally applicable development impact fees throughout San Diego. The California Supreme Court has held fees imposed on individuals on an ad hoc, discretionary basis are subject to the Nollan/Dolan heightened scrutiny test, but the test does not extend to generally applicable development fees. (San Remos Hotel L.P. v. City and County of San Francisco (2002) 27 Cal.4th 643, 663-671.) In its opposition, Petitioner appears to concede the proposed fee is not subject to the heightened scrutiny Nollan/Dolan test. Instead, Petitioner now asserts the proposed fee must at least bear a 'reasonable relationship' to the impact of the development. There are no such allegations in Petitioner's first cause of action.

'[I]n the wake of Dolan the term 'reasonable relationship' embraces both constitutional and statutory Calendar No.: Event ID: TENTATIVE RULINGS

2942382 18 CASE NUMBER: CASE TITLE: LIVABLE SAN DIEGO VS CITY OF SAN DIEGO [E-FILE] 37-2022-00043368-CU-TT-CTL meaning which, for all practical purposes, have merged to the extent that the Dolan decision applies to development fees....' (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 867.) Given Petitioner's concession Dolan does not apply, which the court agrees with, those 'who wish to challenge a development fee on either statutory or constitutional grounds must do so via the statutory framework provided by the [Mitigation Fee] Act. (Ibid.) Here, Petitioner has already mounted a challenge under the Mitigation Fee Act in its second cause of action. (Govt. Code § 66001 et seq.) Petitioner alleges 'Respondent cannot show there is a reasonable relationship between the use of the DIF, the type of development[,] and the need for the public facility' nor 'between the amount of the DIF and the cost of the public facility or portion of the public facility attributable to the development on which the fee is imposed.' (Amd. Pet. at ¶ 31.) The City's demurrer to the first cause of action is sustained. Because Petitioner has already alleged the proposed fee does not pass the 'reasonable relationship' test of the Mitigation Fee Act in its second cause of action, leave to amend the first cause of action is denied.

Third Cause of Action – CEQA Challenge Petitioner's third cause of action is 'CEQA.' The City contends Petitioner's challenge to the project under the California Environmental Quality Act ('CEQA') is time-barred.

'If a valid NOD [Notice of Determination] has been filed [citations], any challenge to that decision under CEQA must be brought within 30 days, regardless of the nature of the alleged violation. (Committee for Green Foothills v. Santa Clara County Bd. of Supers. (2010) 48 Cal.4th 32, 48.) 'The California Supreme Court has made clear that the filing of a facially valid notice starts the running of the statute of limitations, even where the underlying CEQA determinations may be flawed.' (Coalition for an Equitable Westlake/Macarthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, 379.) The proposed project was approved by the City on August 1, 2022 at a public hearing. (Amd. Pet. at ¶ 17.) An NOD was filed the following day on August 2, 2022. (Resp. RJN at Exh. 6.) Petitioner did not commence this proceeding until 85 days later on October 26, 2022. (ROA 1.) In opposition, Petitioner asserts the August 2, 2022 NOD did not start the clock on the statute of limitations. 'Prior authorities recognize only two situations where an NOD would not trigger the statute of limitations. First, the statute of limitations does not commence if the NOD is invalid on its face because the information required by the Guidelines is missing or incorrect.' (Coalition for an Equitable Westlake/Macarthur Park at p. 379.) 'Second, an NOD or NOE does not trigger the statute of limitations if it is filed before a decisionmaking body has approved the project.' (Ibid.) Petitioner contends the NOD is invalid on its face because it gave the 'wrong date' for adoption of certain amendments to the land development code. Specifically, the NOD states the project was approved on August 1, 2022, but Petitioner claims the code amendments were not formally adopted by the City until September 13, 2022. This doe not render the NOD facially invalid. The CEQA Guidelines merely require the NOD to contain 'the date on which the agency approved the project.' (14 Cal. Code Regs. § 15094(b)(3).) ''Approval' means the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person.' (14 Cal. Code Regs. § 15352(a).) Here, the project was approved on August 1, 2022, as stated in the August 2, 2022 NOD. The court concludes the NOD is facially valid.

Alternatively, Petitioner contends the NOD was filed before the City had approved the project. This argument relies on the same faulty assumption that the project was not approved until September 13, 2023 when the code amendments were adopted, and fails for the same reason. The project was approved on August 1, 2022 and the NOD was filed the following day on August 2, 2022.

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2942382 18 CASE NUMBER: CASE TITLE: LIVABLE SAN DIEGO VS CITY OF SAN DIEGO [E-FILE] 37-2022-00043368-CU-TT-CTL Accordingly, the court sustains the demurrer to the third cause of action. Because this defect cannot be cured by amendment, leave to amend is denied.

Requests for Judicial Notice The City's requests for judicial notice are granted.

Writ Hearing The court confirms hearing remains set for February 9, 2024 as to the remainder of the writ petition.

The court notes the City filed a Notice of Lodgment of the Administrative Record on June 26, 2023.

(ROA 37.) However, the court has not received the lodgment. The City is ordered to lodge the administrative record on or before October 16, 2023 and sets a status conference regarding the status of the administrative record for October 20, 2023 at 10:15 a.m.

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