The Salvation Army v. City of Bell CA2/1 ( 2023 )

Filed 6/15/23 The Salvation Army v. City of Bell CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE SALVATION ARMY et al., B316271
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 19STCP00693)
v.
CITY OF BELL,
Defendant and Appellant;
CEMEX CONSTRUCTION
MATERIALS PACIFIC, LLC et al.,
Real Parties in Interest and
Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Joel L. Lofton, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Aleshire & Wynder, David J. Aleshire and June S. Ailin for
Defendant and Appellant City of Bell.
Jeffer Mangels Butler & Mitchell, Kerry Shapiro and
Matthew D. Hinks for Real Party in Interest and Appellant
CEMEX Construction Materials Pacific, LLC.
Rutan & Tucker, John A. Ramirez and Peter J. Howell for
Real Party in Interest and Appellant PI Bell, LLC.
Natural Resources Defense Council, David Pettit, Kimberly
E. Leefatt, Jaclyn H. Prange, and Cecilia Segal for Plaintiffs and
Respondents.
____________________________
In 2013, the City of Bell (City) sold four parcels of real
property located in the City to PI Bell, LLC (PI Bell). As part of
the sale transaction, the City and PI Bell executed an agreement
to facilitate the parcels’ development (Development Agreement or
Agreement). The City also certified an Environmental Impact
Report (EIR) in connection with the Agreement.
PI Bell leased one of the parcels to a third party, which in
turn subleased that parcel to CEMEX Construction Materials
Pacific, LLC (CEMEX).1 In 2018, CEMEX submitted a proposal
to the Design Review Board (DRB) created by the Agreement to
develop a gravel transfer and storage facility on the parcel.2
The DRB determined that the CEMEX project
substantially conformed to the Development Agreement, and
approved CEMEX’s application subject to certain conditions. The
1 We refer to CEMEX, PI Bell, and the City collectively as
“appellants.”
2 As a shorthand, we refer to CEMEX’s proposal for the
parcel in question as the “CEMEX project,” which is the
designation utilized by the trial court during the proceedings
below.
2
DRB also found that its approval fell within the ministerial
exemption to the requirements of the California Environmental
Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).
Additionally, the DRB determined that even if its approval were
subject to CEQA, no additional environmental review would be
required. Specifically, the DRB determined that the CEMEX
project would not result in new significant environmental
impacts or a substantial increase in impacts identified in the
EIR.
The Salvation Army (Salvation Army); East Yard
Communities for Environmental Justice (East Yard); Grow Good,
Inc. (Grow Good); and Shelter Partnership (collectively,
respondents) filed a petition for writ of mandate, challenging the
DRB’s substantial conformity determination, the DRB’s
invocation of the ministerial exemption, and the DRB’s finding
that no further environmental review was required. Appellants
seek review of the trial court’s decision granting respondents’
petition.
We affirm the trial court’s decision to set aside the DRB’s
substantial conformity determination, which is the relief the
court granted on respondents’ first cause of action for
administrative mandamus. Notwithstanding appellants’
argument to the contrary, the Development Agreement does not
authorize CEMEX’s use of a roofless gravel storage building on
the parcel without further proceedings. The Agreement
incorporates by reference zoning code provisions that require
gravel sales and storage operations to be conducted in a
completely enclosed building unless the City’s Planning
Commission and the City Council determine that such uses are
customarily conducted in the open. Appellants identified no
3
evidence that the Planning Commission and the City Council
made such a determination, and they conceded at oral argument
that there was no such determination. Appellants also fail to
demonstrate that CEMEX’s current use of the property falls
within other authorized uses in the Development Agreement, or
that the Agreement authorized the DRB to cure the roofless
gravel storage building’s departure from the City’s Municipal
Code.
In their briefing, appellants do not contest respondents’
assertion that we need not reach appellants’ challenges to the
trial court’s disposition of the CEQA causes of action if we affirm
the judgment on the first cause of action. We agree with
respondents because we do not know what steps CEMEX will
undertake to address our invalidation under the Development
Agreement of CEMEX’s current use of the parcel or what actions
City officials would undertake in response to CEMEX’s future
actions. To address respondents’ CEQA causes of action as to
such a noncompliant and invalidated development project would
be rendering an advisory opinion as to moot issues. For that
reason, the current record does not allow us to conclude that
failing to address the CEQA issues now would have a tangible
impact on the parties’ rights and obligations under the statute.
Similarly, we conclude our affirmance of the judgment on
the first cause of action also moots the judgment on the CEQA
causes of action. Accordingly, we reverse the judgment on the
CEQA claims, and remand with directions to dismiss those
portions of the action as moot. In doing so, we express no opinion
on whether the trial court’s resolution of the CEQA issues was
erroneous.
4
FACTUAL AND PROCEDURAL BACKGROUND3
We summarize only those facts pertinent to our disposition
of this appeal.
1. The City’s approval of the Bell Business Center
project
This case involves four parcels of land in the City, which
the parties refer to as Parcels A, F, G, and H. In 2013, the City
sold the four parcels to PI Bell, entered into the Development
Agreement with that entity, and issued an ordinance adopting
the Agreement. The Agreement identifies the development of the
four parcels as the Bell Business Center project. Also in 2013,
3 We derive our Factual and Procedural Background in
part from undisputed aspects of the trial court’s ruling on
respondents’ writ petition, admissions made by the parties in
their filings, and assertions respondents raise in their brief to
which appellants do not respond in their reply. (See Baxter v.
State Teachers’ Retirement System (2017) 18 Cal.App.5th 340,
349, fn. 2 [utilizing the summary of facts provided in the trial
court’s ruling]; Applicable Law, post [noting that the trial court’s
orders and judgments are presumed correct]; Artal v. Allen (2003)
111 Cal.App.4th 273, 275, fn. 2 (Artal) [“ ‘[B]riefs and
argument . . . are reliable indications of a party’s position on the
facts as well as the law, and a reviewing court may make use of
statements therein as admissions against the party.’ ”]; Rudick v.
State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90 (Rudick)
[concluding that the appellants made an implicit concession by
“failing to respond in their reply brief to the [respondent’s]
argument on th[at] point”]; Tiburon Open Space Committee v.
County of Marin (2022) 78 Cal.App.5th 700, 709–710, 757
[same].)
5
the City certified the final EIR for the Bell Business Center
project.
The four parcels are located in the CM (Commercial
Manufacturing) zone. Notwithstanding that zoning designation,
the Development Agreement’s list of “Eligible Uses” authorizes
not only “[a]ny use currently permitted in the . . . CM
(Commercial Manufacturing) zoning district,” but also, inter alia,
“[a]ny use currently permitted in the M (Manufacturing) . . .
zoning district”; “Warehousing”; “Distribution”; “Logistics”;
“Loading and Unloading of Parcels and Freight”; “Truck
terminal”; “Sorting, loading and unloading of Parcels and
Freight”; “Parcel and freight forwarding”; “Retail order
fulfillment (online or catalog services)”; “General office uses”;
“Onsite railroad service and transfer facility”; “Outdoor
advertising media”; and “Telecommunications facilities (including
monopoles and towers).” Section 4.3 of the Agreement provides
in pertinent part: “[T]his Agreement and its Exhibits . . . shall
prevail over any other Existing Land Use Regulations.”4
The Development Agreement also created the DRB, which
is a “four member review board consisting of the Community
Development Director, City Engineer, one member of the
Planning Commission and one member of the City Council . . . .”
As we explain later in this opinion, future development of the
parcels is conditioned on the DRB’s determination that the
proposal is “based on the design requirements” of certain
provisions of the Agreement. (See Discussion, part A.1, post.)
4 As pertinent here, “Existing Land Use Regulations” are
defined as “actions of the City” (e.g., ordinances) applicable to the
four parcels that were “in effect on the date the City Council
approve[d] th[e] Agreement.”
6
2. The development of Parcels F, G, and H, the initial
proposal for the CEMEX project, and the prior
litigation
Following execution of the Development Agreement,
Parcels F, G, and H were developed into distribution centers.
PI Bell leased Parcel A to BNSF, which in turn subleased it to
CEMEX.5
In 2016, CEMEX submitted its initial proposal to develop
an aggregate material storage facility on Parcel A. Under the
initial proposal for the CEMEX project, gravel would be brought
to the facility by railroad service, stored for resale, and
subsequently transported for delivery to the local marketplace by
truck. At the time CEMEX submitted its initial proposal,
Parcel A was being used to store tractor trailers.
It is undisputed that City officials approved the initial
proposal for the CEMEX project without following the procedures
required by the Development Agreement. Specifically, appellants
admit “[t]he City’s then Community Development Director had
formed an ad-hoc committee to review CEMEX’s application,
rather than convening the [DRB].” CEMEX thereafter obtained
building permits and began construction in October 2017.
In 2018, East Yard, a nonprofit corporation that is devoted
to “protect[ing] th[e] community and nearby residents from the
harmful air pollution generated by industrial and goods
movement activities,” filed suit challenging the initial approval of
the CEMEX project. The lawsuit alleged that the initial version
of the CEMEX project was not a permitted use on Parcel A under
the Development Agreement and had environmental impacts
5 BNSF is not a party to this appeal.
7
that were not studied in the 2013 EIR. The City, PI Bell, and
CEMEX entered into a settlement agreement that provided for,
among other things, DRB review of CEMEX’s proposal,
modifications to the CEMEX project designed to minimize air
quality impacts of the project, and a promise to adhere to the
transportation mitigation measures from the 2013 EIR.
East Yard entered into a stipulation to dismiss its suit.
The stipulation allowed East Yard to pursue its challenge to the
CEMEX project if East Yard was not satisfied with the outcome
of the DRB’s forthcoming review.
3. The DRB’s approval of the CEMEX project, the Notice
of Exemption, and CEMEX’s operation of the facility
In late 2018, CEMEX submitted a revised application for
the CEMEX project to the DRB. The DRB held a public hearing
on January 31, 2019. Later that day, the DRB issued a
resolution approving CEMEX’s application. The DRB found
“substantial conformity with the Development Agreement . . . and
the EIR . . . .” At the end of the “Substantial Compliance” section
of the resolution, the DRB stated, “To the extent any of the
foregoing findings were overturned, in the alternative, any
deviations by the [CEMEX p]roject are found to be minor within
the meaning of Section 5D of Exhibit C” of the Development
Agreement. (Boldface omitted.)
The DRB also imposed certain conditions of approval, and
stated that “[p]ursuant to the Development Agreement . . .
conditions may be added to assure that the Project’s construction
and operations are consistent with the Development Agreement
and EIR and do not adversely impact surrounding properties.”
One of those conditions of approval required CEMEX to
“maintain a complaint hotline on a 24/7 status[,] . . . post a
8
publicly visible sign with the 24/7 telephone number and contact
person’s name where complaints can be received[,] . . . [and]
maintain a written log of all complaints and actions taken in
connection with the complaints and . . . inform complainants of
the actions taken.”
In the “CEQA Conclusions” section of the resolution, the
DRB found that “[d]esign or aesthetic review of a project is not a
decision that is subject to CEQA.” (Boldface & underscoring
omitted from the first quotation.) The DRB further found that
“CEMEX’s use of Parcel A does not result in new significant
environmental impacts, a substantial increase in impacts
identified in the Development Agreement EIR, or require
substantially different mitigation measures than those
established for purposes of the Development Agreement.”
On February 5, 2019, the City filed a Notice of Exemption
for the DRB’s approval of the revised application for the CEMEX
project.6 In the Notice of Exemption, the City claimed that the
DRB’s “decisions are exempt from CEQA” because they are
“Ministerial.” Specifically, the City claimed the DRB’s “authority
is limited” under the Development Agreement “to determining
6 The Notice of Exemption identifies “Planning
Commission, City of Bell” as the “Public Agency Approving
Project.” (Boldface omitted.) This is an error. The remainder of
the Notice of Exemption indicates the document concerns the
DRB’s approval of the “CEMEX aggregate transfer/storage
facility at the Bell Business Center.” Appellants concede that
this Notice of Exemption asserts that “the Board’s approval of the
CEMEX construction and design plans was exempt from
CEQA . . . .” (Italics added.) (See Artal, supra, 111 Cal.App.4th
at p. 275, fn. 2 [holding that an assertion in a brief may be
construed as an admission against the party making it].)
9
that development . . . is based on the design requirements set
forth in the Development Agreement, conditions of approval of
the Development Agreement and the Environmental Impact
Report . . . .” The City further remarked that the DRB “does not
have the discretion to establish conditions that alleviate adverse
environmental impacts.”
Construction on the CEMEX project was completed in
May 2019, and the facility is currently operational.
4. Respondents’ initiation of the instant proceedings,
the trial court’s ruling and judgment, and
appellants’ notices of appeal
On March 7, 2019, respondents commenced the instant
proceedings against appellants. Before proceeding further, we
note that Salvation Army and Shelter Partnership are nonprofit
corporations that operate on parcels located near Parcel A.
Salvation Army offers interim shelter services and supportive
services for homeless individuals. Shelter Partnership operates a
warehouse that distributes donated surplus goods to agencies
within Los Angeles County. Grow Good is a nonprofit
corporation that manages a community garden on land leased
from Salvation Army.
Respondents’ operative first amended verified petition for
writ of mandate alleges three causes of action: (1) a mandamus
cause of action challenging the DRB’s finding that the CEMEX
project was in substantial conformity with the Development
Agreement; (2) a cause of action alleging that CEQA required the
preparation of a subsequent or supplemental EIR for the CEMEX
project in part because the project “was not analyzed in the 2013
EIR”; and (3) a cause of action alleging that the “Notice of
Exemption . . . is invalid because [DRB] review of the [CEMEX
10
p]roject was a discretionary decision and its approval . . . was
subject to CEQA.”
In their prayer for relief, respondents sought, among other
things, “a writ of mandate . . . commanding [the City] to set aside
the January 31, 2019 finding of the [DRB] . . . and requiring [the
City] to set aside its approval of the [CEMEX p]roject”; “a writ of
mandate . . . commanding [the City] to conduct a subsequent or
supplemental CEQA analysis of the [CEMEX p]roject, and to set
aside its approval of the [CEMEX p]roject until such analysis is
final”; and “[f]or temporary, preliminary and permanent
injunctive relief halting . . . the use of K Street by CEMEX for
any commercial purposes . . . .”7
Upon hearing respondents’ petition, the trial court issued
a ruling granting the petition. Regarding respondents’ first cause
of action for writ of mandamus, the trial court concluded, “The
[DRB]’s determination that the CEMEX project is in substantial
conformance with the 2013 Development Agreement is not
supported by substantial evidence.”
Concerning respondents’ CEQA causes of action, the trial
court concluded “substantial evidence does not support a finding
that the DRB’s actions were ministerial” because “the DRB had
the discretion[,] and indeed did implement, conditions in order to
shape the project to respond to potential environmental concerns
associated with the CEMEX Project.” The court further
concluded the DRB erred in determining that “the CEMEX
Project does not require subsequent or supplemental CEQA
review.” The court reasoned that because the EIR for the Bell
7K Street is “a utility street adjacent to Salvation Army
and Grow Good.”
11
Business Center project “was prepared to analyze whether or not
the proposed ‘industrial/warehouse[s] and ancillary office
space[s]’ of [that project] would cause any potential
environmental impacts,” “the EIR could not, and did not,
contemplate the potential environmental impacts of” CEMEX’s
“open-air gravel storage, sale, and distribution facility.” The
court also rejected appellants’ argument that CEQA’s 30-day
statute of limitations precluded respondents from obtaining relief
under that statute.
The trial court also found that respondents’ “request that
the Court prohibit CEMEX from operating on K Street” was not
“ripe for review” because all parties “have stipulated that
CEMEX does not use K Street to access the facility,” and “all
parties agree that CEMEX makes use of Rickenbacker Road to
access the CEMEX facility.”8
The trial court entered judgment for respondents in
accordance with its ruling on their petition. As to respondents’
first cause of action for mandamus relief, the court issued a writ
requiring the City to set aside the DRB’s finding that the CEMEX
project was in substantial conformity with the applicable
provisions of the Development Agreement. For the second and
third causes of action under CEQA, the court issued a writ
requiring the City to set aside the Notice of Exemption for the
CEMEX project and “[t]ake such additional steps under CEQA as
[the City] deems proper . . . .” Appellants timely appealed the
judgment.
8 The parties agree that Parcel A does not benefit from an
easement permitting legal access via Rickenbacker Road. This
undisputed fact has no bearing on our disposition of the instant
appeal.
12
APPLICABLE LAW
“In general, where [an] administrative agency’s decision is
‘quasi-adjudicative’ in nature,” that is, “ ‘ “an . . . act involv[ing]
the actual application of . . . a rule to a specific set of existing
facts[,]” ’ ” “ ‘review . . . is by administrative mandamus’ ” under
Code of Civil Procedure section 1094.5.9 (See Stanford Vina
Ranch Irrigation Co. v. State of California (2020) 50 Cal.App.5th
976, 995–996.) That statute authorizes a trial court to “set aside
[an] order or decision” of the agency. (See Code Civ. Proc.,
§ 1094.5, subd. (f).) “When the trial court reviews the decision of
an administrative body pursuant to section 1094.5, the inquiry
‘shall extend to the questions 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.’ [Citation.]” (County of Fresno v.
Fresno Deputy Sheriff’s Assn. (2020) 51 Cal.App.5th 282, 288
(Fresno Deputy Sheriff’s Assn.), quoting § 1094.5, subd. (b).)
In administrative mandamus cases, “[t]he appellate court
applies substantial evidence review” to the agency’s decision.
(Fresno Deputy Sheriff’s Assn., supra, 51 Cal.App.5th at p. 288.)
9 Although respondents styled their first cause of action for
mandamus relief as a claim arising under Code of Civil Procedure
section 1085, they maintain in their brief that Code of Civil
Procedure section 1094.5 governs this cause of action. By failing
to contest this assertion in appellants’ reply brief, appellants
tacitly concede that respondents are correct on this point. (See
Rudick, supra, 41 Cal.App.5th at pp. 89–90.)
13
Under that standard, the appellate court “ ‘ “reviews the
administrative record to determine whether the agency’s findings
were supported by substantial evidence, resolving all conflicts in
the evidence and drawing all inferences in support of them.” ’[10]
[Citation.] ‘If the administrative findings are supported by
substantial evidence, the next question is one of law—whether
those findings support the agency’s legal conclusions or its
ultimate determination.’ [Citation.]” (Fresno Deputy Sheriff’s
Assn., at p. 288.)
“Matters presenting pure questions of law . . . are subject to
de novo review.” (Shewry v. Begil (2005) 128 Cal.App.4th 639,
642.) Such matters include “[t]he interpretation of a regulation
or a statute” (see Family Health Centers of San Diego v. State
Dept. of Health Care Services (2021) 71 Cal.App.5th 88, 97
(Family Health Centers of San Diego)), and the construction of
“ ‘ “a contract or written document” ’ ” so long as “ ‘ “the
interpretation [does not] turn[ ] upon the credibility of extrinsic
evidence” ’ ” (see Fresno Deputy Sheriff’s Assn., supra,
51 Cal.App.5th at p. 288).
10 Code of Civil Procedure section 1094.5, subdivision (c)
provides that, “in cases in which the [trial] court is authorized by
law to exercise its independent judgment on the evidence, abuse
of discretion is established if the court determines that the
findings are not supported by the weight of the evidence.” (Code
Civ. Proc., § 1094.5, subd. (c).) In such cases, an appellate court’s
“focus is on the trial court’s findings and whether there is
substantial evidence to support those findings [citation] . . . .”
(See Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th
500, 512–513 (Shenouda).) Neither side asserts this standard of
review applies to the instant appeal.
14
CEQA has “ ‘established a three-tiered process to ensure
that public agencies inform their decisions with environmental
considerations.’ [Citation.] A public agency must ‘conduct a
preliminary review in order to determine whether CEQA applies
to a proposed activity.’ [Citation.] At this stage, the agency must
determine whether any of CEQA’s statutory exemptions apply.
[Citation.] If the project is in an exempt category for which there
is no exception, ‘ “no further environmental review is necessary.” ’
[Citations.] [¶] If the project is not exempt from CEQA, the next
step is to conduct an initial study. [Citation.] . . . [¶] . . . If [the
initial study reveals that a] negative declaration is [not]
appropriate, the final step is to prepare an EIR.” (See Parker
Shattuck Neighbors v. Berkeley City Council (2013)
222 Cal.App.4th 768, 776–777.)
“ ‘An EIR is an “environmental ‘alarm bell’ whose purpose
it is to alert the public and its responsible officials to
environmental changes before they have reached ecological points
of no return.” [Citations.] . . . ’ [Citation.] The EIR ‘must include
detail sufficient to enable those who did not participate in its
preparation to understand and to consider meaningfully the
issues raised by the proposed project.’ [Citation.] [¶] Among
other topics, an EIR must discuss significant environmental
effects and unavoidable significant environmental effects . . . .
For significant adverse effects, the EIR must describe feasible
measures to minimize significant adverse effects . . . .” (Ocean
Street Extension Neighborhood Assn. v. City of Santa Cruz (2021)
73 Cal.App.5th 985, 1003.)
“The CEQA Guidelines are regulations adopted to
implement CEQA, codified at California Code of Regulations,
title 14, chapter 3, sections 15000–15387.” (Endangered Habitats
15
League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 792,
fn. 11.) CEQA Guidelines section 15268, subdivision (a) states:
“Ministerial projects are exempt from the requirements of CEQA.
The determination of what is ‘ministerial’ can most appropriately
be made by the particular public agency involved based upon its
analysis of its own laws, and each public agency should make
such determination either as a part of its implementing
regulations or on a case-by-case basis.” (CEQA Guidelines,
§ 15268, subd. (a).) Conversely, “[w]here a project involves an
approval that contains elements of both a ministerial action and
a discretionary action, the project will be deemed to be
discretionary and will be subject to the requirements of CEQA.”
(Id., subd. (d).)
Furthermore, CEQA Guidelines section 15162,
subdivision (a) provides in pertinent part: “When an EIR has
been certified . . . for a project, no subsequent EIR shall be
prepared for that project unless the lead agency determines, on
the basis of substantial evidence in the light of the whole record,
one or more of the following: [¶] . . . Substantial changes are
proposed in the project which will require major revisions of the
previous EIR . . . due to the involvement of new significant
environmental effects or a substantial increase in the severity of
previously identified significant effects . . . .” (CEQA Guidelines,
§ 15162, subd. (a)(1).) CEQA Guidelines section 15163,
subdivision (a) states: “The lead or responsible agency may
choose to prepare a supplement to an EIR rather than a
subsequent EIR if: [¶] (1) Any of the conditions described in
Section 15162 would require the preparation of a subsequent
EIR, and [¶] (2) Only minor additions or changes would be
necessary to make the previous EIR adequately apply to the
16
project in the changed situation.” (CEQA Guidelines, § 15163,
subd. (a).)
“When an agency concludes an activity is exempt [from
CEQA] based on factual considerations, a court reviews for
substantial evidence. If the agency’s determination ‘involves
pure questions of law, we review those questions de novo.’
[Citation.]” (See Protecting Our Water & Environmental
Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 487,
495.) “We review [an agency’s] conclusion that [a p]roject did not
require any further environmental review” under the substantial
evidence standard. (See Latinos Unidos de Napa v. City of Napa
(2013) 221 Cal.App.4th 192, 195, 204.) In the CEQA context,
substantial evidence “means enough relevant information and
reasonable inferences from this information that a fair argument
can be made to support a conclusion, even though other
conclusions might also be reached.” (See CEQA Guidelines,
§ 15384, subd. (a).) “Argument, speculation, unsubstantiated
opinion or narrative, evidence which is clearly erroneous or
inaccurate, or evidence of social or economic impacts which do not
contribute to or are not caused by physical impacts on the
environment does not constitute substantial evidence,” whereas
“[s]ubstantial evidence [does] include facts, reasonable
assumptions predicated upon facts, and expert opinion supported
by facts.” (See id., subds. (a)–(b).)
Additionally, the trial court’s rejection of appellants’ CEQA
statute of limitations defense is reviewed de novo because the
parties do not dispute the facts pertaining to that issue. (Ventura
Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th
429, 434 [“ ‘Where [as here] the pertinent facts are undisputed, it
is a question of law whether a case is barred by the statute of
17
limitations. Accordingly, we apply the de novo standard of
review [to this issue].’ ”].)
Although deference to the trial court’s resolution of
respondents’ mandamus and CEQA claims is not required, the
court’s rulings are subject to the presumption of correctness
applicable to all trial court judgments and orders.11 Accordingly,
“ ‘all presumptions and intendments are in favor of supporting
the judgment[,] . . . the appellant has the burden of showing
reversible error, and in the absence of such showing, the
judgment . . . will be affirmed.’ [Citations.]” (See Estate of Sapp
(2019) 36 Cal.App.5th 86, 104.) Our review is thus “ ‘ “ limited to
issues which have been adequately raised and supported in [the
appellant’s opening] brief’ [citation,]” and “[i]ssues not raised in
an appellant’s brief are deemed waived or abandoned.” ’
[Citation.]” (See Golden Door Properties, LLC, supra,
11 (See Wollmer v. City of Berkeley (2009) 179 Cal.App.4th
933, 939 [“An appellate court’s task in the review of a mandate
proceeding is essentially identical to that of the trial court.
[Citation.] Accordingly, ‘we review the agency’s actions directly
and are not bound by the trial court’s conclusions.’ ”]; Shenouda,
supra, 27 Cal.App.5th at pp. 502–503, 512 [recognizing, in an
administrative mandamus case, that “[b]ecause judgments of the
trial court are presumed to be correct, the appellant bears the
burden to affirmatively demonstrate error, and must show that
the error was prejudicial”]; Golden Door Properties, LLC v.
County of San Diego (2020) 50 Cal.App.5th 467, 554–555 (Golden
Door Properties, LLC) [noting that “ ‘we [are] not . . . bound by,
or . . . required to show any deference to, the trial court’s
conclusion’ ” on a CEQA claim, but acknowledging that “even in a
CEQA case, ‘ “[t]he most fundamental rule of appellate review is
that an appealed judgment or order is presumed to be
correct” ’ ”].)
18
50 Cal.App.5th at pp. 554–555.) “ ‘[T]o demonstrate error, an
appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the
record[,]’ ” along with “ ‘ “any supporting authority.” ’ ” (See
Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277;
Los Angeles Unified School Dist. v. Torres Construction Corp.
(2020) 57 Cal.App.5th 480, 492.)
Lastly, “ ‘[i]f the decision of a lower court is correct on any
theory of law applicable to the case, the judgment or order will be
affirmed regardless of the correctness of the grounds upon which
the lower court reached its conclusion.’ [Citation.]” (Estate of
Sapp, supra, 36 Cal.App.5th at p. 104.)
DISCUSSION
Appellants contend we should reverse the judgment in
favor of respondents on the first cause of action for writ of
mandamus because “[t]he DRB’s finding that the [CEMEX
project] substantially conforms to the Development Agreement is
supported by substantial evidence.” (Boldface omitted.)
Appellants further argue the trial court erred in granting
relief on respondents’ CEQA claims, to wit, the second and third
causes of action. First, appellants assert both causes of action
fail because “[t]he City was not required to conduct further
environmental review” before the DRB could “approve[ ] the
design” of the CEMEX project. (Boldface omitted from first
quotation.) In support of that position, appellants argue: (1) the
DRB’s “design review does not implicate CEQA” because it was
not “a ‘discretionary’ decision within the meaning” of the statute,
and (2) even if CEQA applies, “the DRB’s determination that the
[CEMEX project] would not cause impacts not already addressed
in the 2013 EIR is supported by substantial evidence.”
19
Appellants further contend the second cause of action is barred
by CEQA’s statute of limitations because that claim is actually an
untimely challenge to the adequacy of the EIR that the City
certified in 2013.
For the reasons set forth below, we affirm the trial court’s
grant of administrative mandamus as to the first cause of action,
which set aside the DRB’s determination that the CEMEX project
substantially conforms to the Agreement. Furthermore, we agree
with respondents that our affirmance of the trial court’s
disposition of their first cause of action moots appellants’
challenge to the remainder of the judgment. In particular, the
Notice of Exemption has no legal significance because it pertains
to the DRB’s invalid approval of the CEMEX project.
Furthermore, the record before us does not disclose what, if any,
steps CEMEX would take to cure the project’s nonconformance
with the Development Agreement, and what actions City officials
will undertake in response to CEMEX’s efforts. Without this
information, we have no basis to predict what impact, if any, the
trial court’s rulings on the second and third causes of action
would have on the parties in the future. Further, because our
affirmance on the first cause of action also moots the judgment on
the two CEQA causes of action, we reverse the judgment on those
two claims, and remand with directions to vacate those moot
portions of the judgment.
A. The Trial Court Did Not Err In Setting Aside the
DRB’s Substantial Conformance Determination
The trial court concluded that the DRB’s “determination
that the CEMEX project is in substantial conformance with the
2013 Development Agreement is not supported by substantial
evidence.” In accordance with that ruling, the court granted
20
respondents the following relief on their first cause of action:
“[A] peremptory writ of mandate shall issue providing as follows:
[¶] . . . [¶] City of Bell shall: [¶] A. Set aside the [DRB]’s finding
that the construction and design plans for the CEMEX facility
were in substantial conformity with the applicable provisions of
the Development Agreement adopted by Bell in 2013; [¶]
B. Commence such additional [DRB] processes as may be
appropriate under the 2013 Development Agreement regarding
the project approved in that Agreement; and [¶] C. File a return
to the writ confirming that the above-described actions have been
taken and/or that a notice of appeal has been filed.”
Appellants argue the DRB properly found that the CEMEX
project is “based on the design requirements of” the EIR and
certain parts of the Development Agreement—“[t]he approved
Scope of Development, which includes the Basic Design Concept,
Development Standards and Permitted Uses; [¶] [and t]he
Conditions of Approval.” Appellants further contend “the DRB
also properly determined that, even if the design of the [CEMEX
project] deviated from the design requirements of the governing
documents,” the DRB “could . . . approve[ the CEMEX project] as
a minor modification” to those requirements.
As we explain below, the DRB’s substantial conformance
determination was erroneous because the undisputed facts
establish that CEMEX’s gravel storage facility does not constitute
an Eligible Use identified in the Development Standards and
Permitted Land Uses of the Development Agreement. Further,
appellants fail to show that the DRB could nonetheless render
the CEMEX project an Eligible Use. Accordingly, appellants
do not demonstrate the trial court erred in granting relief on
respondents’ first cause of action for administrative mandamus.
21
1. The Development Agreement required the DRB to
determine whether the CEMEX project is an
Eligible Use
We first note certain relevant provisions of the
Development Agreement. Section 6.2.2 provides in pertinent
part: “Before action is taken on any Future Development
Approval,[12] . . . plans and drawings of such Project
improvement, sign, building or alteration proposed as part of the
Future Development Approval shall be submitted, in such form
and detail as the Director [of Community Development] may
prescribe, to the [DRB] for approval. The submittal shall include
the following information to the extent applicable to the Future
Development Approval being sought: [¶] (a) Site plans [¶]
(b) Landscaping plans [¶] (c) Building elevations/renderings [¶]
(d) Color and materials board.”
Section 6.2.3 in turn provides: “In order to grant design
review approval, the findings and determinations of the [DRB]
shall be that the Project improvement, as set forth in the
proposed Future Development Approval, is based on the design
requirements included in the approved Scope of Development,
Basic Design Concept, Conditions of Approval, and
Environmental Impact Report.” Furthermore, Section 6.2.4
states: “If the [DRB] is unable to make the findings and
12 “Future Development Approvals” are “Site-specific
(meaning specifically applicable to the Site only and not generally
applicable to some or all other properties within the City) plans,
maps, permits, and entitlements to use of every kind and nature”
“approved by the City after the date the City Council approve[d]
th[e] Agreement . . . .” The term “Site” refers to Parcels A, F, G,
and H.
22
determinations prerequisite to the granting of design approval
pursuant to this Section [(i.e., Section 6.2)], the application shall
be denied.” Section 6.2.5 declares: “Approval of a design, and the
finding that such design conforms to the provisions of this
Agreement, is hereby declared to be an administrative function.
The [DRB] has the authority and responsibility to perform this
administrative function. The action thereon by the [DRB] shall
be final and conclusive.”
Exhibit C to the Development Agreement is titled “Scope of
Development,” which includes “Exhibit C1 [ ] Basic Design
Concept,” “Exhibit C2 [ ] Development Standards and Permitted
Land Uses,” and “Exhibit C3 [ ] Offsite Improvement Narrative.”
The Basic Design Concept is comprised of “Site Plans[,] [¶] . . . [a]
Conceptual Landscape Plan[,] [¶] . . . Illustrative Drawings and
Elevations[,] [¶] . . . [and] Building Materials.” Exhibit C2 of the
Development Agreement includes a section titled “Eligible Uses,”
which consists of “Permitted Uses,” “Accessory Uses,”
“Conditional Uses,” and “Prohibited Uses.” (Some capitalization
omitted from first quotation.) One “Permitted Use” listed therein
is “[a]ny use currently permitted in the M (Manufacturing) or CM
(Commercial Manufacturing) zoning districts.” Section 1.32 of
the Development Agreement in turn provides in relevant part:
“The Site, and all Parcels thereof, shall be restricted in use to
those uses permitted under the Scope of Development (Exhibit
‘C2’).” Furthermore, Exhibit D to the Development Agreement is
titled “Conditions of Approval.”13
13 Although Section 1.60 defines “Scope of Development” as
“the description of the Project and the manner in which it will be
developed as set forth in Exhibit ‘D’ ” (italics added), this
reference to Exhibit D appears to be a typographical error
23
The definitions section of the 198-page Development
Agreement does not include an entry for “design requirements,”
which, as we noted above, is a term used to delineate the scope of
the DRB’s design review authority in Section 6.2.3. Furthermore,
neither side claims that any provision of the Agreement supplies
a definition of that term. In support of their contention that the
CEMEX project is “consistent with the design requirements of the
Scope of Development” (boldface omitted, italics added),
appellants assert the DRB properly determined that the CEMEX
project is an Eligible Use. Consequently, appellants have
implicitly admitted that the “Eligible Uses” included in
Exhibit C2 are “design requirements included in the approved
Scope of Development” for the purposes of Section 6.2.3 of the
Development Agreement. (See Artal, supra, 111 Cal.App.4th at
p. 275, fn. 2; see also Proctor v. Vishay Intertechnology, Inc.
(2013) 213 Cal.App.4th 1258, 1272–1273 (Proctor) [indicating
that a party’s legal theory may give rise to an implicit concession
upon which a court may rely in deciding an appeal].)
Indeed, as we explain below, the Development Agreement’s
restrictions on use of the parcels have design implications for
developments on Parcel A. In particular, the Eligible Uses listed
in Exhibit C2 include “use[s] currently permitted in the
M (Manufacturing) . . . zoning district,” uses that the applicable
zoning code requires to be conducted within a completely enclosed
building. (See Discussion, part A.2.b, post.) Therefore, we agree
with appellants’ position that the Eligible Uses impose design
because Exhibit D consists of the Conditions of Approval. Other
provisions of the Development Agreement correctly identify
Exhibit C as the Scope of Development.
24
requirements that the DRB must consider when conducting its
review.
2. The DRB erred in concluding that the CEMEX project
is an Eligible Use
Appellants maintain that “[t]he Development
Agreement . . . permitted a series of ‘industrial, manufacturing,
and warehousing’ uses as ‘Eligible Uses,’ including, as most
relevant here, gravel sales and storage facilities and onsite
railroad service and transfer facilities.” Appellants seem to argue
that although “gravel sales and storage facilities” are not
identified explicitly in the Development Agreement, that activity
constitutes the following Eligible Use, which appears under the
subheading “Permitted Uses”: “[a]ny use currently permitted in
the M (Manufacturing) . . . zoning district.”14 In addition,
appellants intimate that the roofless gravel storage facility on
Parcel A falls within the “distribution”; “logistics”; “sorting,
loading, and unloading of parcels and freight”; and “onsite
railroad service and transfer facility” entries in the Agreement’s
Eligible Uses. (Capitalization omitted.) For the reasons
discussed in this part, we reject appellants’ claim that the
CEMEX project satisfies these definitions of Eligible Uses.
We note as a preliminary matter that although the
“Eligible Uses” list also allows “[a]ny use currently permitted in
the . . . CM (Commercial Manufacturing) zoning district,”
appellants do not cite any provision from the Municipal Code
14 Under the Agreement, a “Permitted Use” is a category of
“Eligible Uses” that (1) is not an “Accessory Use” or a “Prohibited
Use,” and (2) does not require a conditional use permit. For
instance, “Warehousing” and “Logistics” are Permitted Uses.
25
demonstrating that the CEMEX project would constitute a use
“permitted in the . . . CM (Commercial Manufacturing) zoning
district.” Furthermore, in their briefing as to this issue, the only
Municipal Code provision appellants cite is Municipal Code
section 17.40.020.A.20, which concerns only M Manufacturing
zoning districts. Accordingly, we do not address further any uses
permitted in CM zoning districts. (See Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘The absence of
cogent legal argument or citation to authority allows this court to
treat [a] contention as waived.’ ”].)
a. The 2013 version of the Municipal Code applies
to this case, and appellants do not contend
otherwise
The version of the City’s Municipal Code that was operative
when the City approved the Development Agreement in 2013
governs whether the CEMEX project falls within the scope of the
“[a]ny use currently permitted in the M (Manufacturing) . . .
zoning district[ ]” entry in the Eligible Uses list.15 This passage’s
focus on uses “currently permitted in the M (Manufacturing) . . .
zoning district[ ]” (italics added) suggests the provision is
governed by the zoning provisions in effect when the City adopted
the Development Agreement. (See People v. Loeun (1997)
17 Cal.4th 1, 11 [“ ‘[The legislative] use of a verb tense is
significant in construing statutes.’ ”]; see also Christian v. Flora
(2008) 164 Cal.App.4th 539, 551 (Christian) [“Contracts . . . are
15 The Municipal Code provisions discussed in this opinion
were in effect in 2013. We, sua sponte, take judicial notice of
them. (Evid. Code, §§ 452, subd. (b), 459.)
26
writings to be construed in accordance with substantially the
same canons of interpretation as statutes.”].)
We further note that appellants’ legal arguments proceed
on this assumption as well. Appellants argue that the
Development Agreement is “a statutory development agreement,”
which they claim functions as an “ ‘assurance that the project
[will] be approved based on rules, regulations, and policies
existing at the time the development agreement was approved,
even if those rules, regulations, and policies changed over the
course of the development project.’ ” (Quoting Mammoth Lakes
Land Acquisition, LLC v. Town of Mammoth Lakes (2010)
191 Cal.App.4th 435, 443.) In addition, to support their
argument that the CEMEX project constitutes an Eligible Use,
appellants cite a document they filed during the trial court
proceedings, which they had identified as the version of
“Municipal Code Section 17.40.020 in effect in . . . 2013 when the
Development Agreement was approved . . . .” Accordingly,
appellants implicitly agree that the 2013 version of the Municipal
Code governs our analysis. (See Proctor, supra, 213 Cal.App.4th
at pp. 1272–1273 [deeming certain parties to have made implicit
concessions by advancing a particular legal theory on appeal].)
b. Appellants fail to demonstrate that CEMEX’s
uncovered gravel storage facility complies with
the applicable Municipal Code provisions for
the M zoning district
Appellants contend that Municipal Code
section 17.40.020.A.20 authorizes CEMEX to maintain a gravel
sales and storage facility on Parcel A. That provision states in
pertinent part: “Permitted uses. [¶] No person shall use, or
permit the use of any property zoned M except as herein
27
provided: [¶] A. Principal Uses. Premises in the M zone may be
used for the following principal uses: [¶] . . . [¶] 20. Sand, gravel,
fill dirt, topsoil sales and storage, not including a quarry
operation . . . .”
Notwithstanding the permissive language of Municipal
Code section 17.40.020.A.20, another section of chapter 17.40
restricts the gravel sales and storage operations of premises in
the M zone. Municipal Code section 17.40.030.A provides:
“Limitations on permitted uses. [¶] Every use in any M zone
shall comply with the following: [¶] A. All uses shall be
conducted within a completely enclosed building except for those
uses which are customarily conducted in the open, such as the
sale of cars, boats and recreational vehicles, as determined by the
planning commission pursuant to Section 17.04.090 of this code.”
Municipal Code section 17.04.090 in turn provides:
“Clarification of ambiguity. [¶] If an ambiguity shall be
found with reference to these regulations, including but not
limited to, the appropriate classification of a particular use, the
commission shall consider the matter and shall, by resolution,
recommend to the city council the clarification of such ambiguity.
When such a commission resolution has been approved by the
city council, the same shall be deemed to be in force and effect
and shall govern the interpretation of the affected provisions of
this title, to which the same relates, until such time as an
appropriate amendment thereto has been duly adopted.”
It is undisputed that the CEMEX project calls for the
storage of gravel in a building that does not have a roof.
Respondents claim that the unroofed storage building does not
constitute an Eligible Use because the DRB “failed to put the
28
issue to the Planning Commission for deliberation.”16 Appellants
do not dispute respondents’ assertion that the DRB did not ask
the Planning Commission to consider whether the unroofed
storage building satisfies the “customarily conducted in the open”
exception to the “completely enclosed building” requirement and,
at oral argument, appellants conceded the absence of any such
Planning Commission deliberation. Nor does it appear that the
voluminous record in this matter contains the Planning
Commission and City Council resolutions required by Municipal
Code sections 17.40.030.A and 17.04.090, and we will not scour
the record when appellants have failed to identify any such
resolution in the record. (See Inyo Citizens for Better Planning v.
Inyo County Bd. of Supervisors (2009) 180 Cal.App.4th 1, 4, 14
(Inyo Citizens for Better Planning) [“ ‘We are not required to
search the record to ascertain whether it contains support for
[appellant’s] contentions.’ ”].)
Appellants nonetheless maintain “the trial court correctly
found” that the CEMEX project “falls neatly within” the
16 Appellants urge us to disregard this argument because
respondents raised it in a footnote in their respondents’ brief.
We exercise our discretion to consider the argument. We do so
because respondents’ placement of this argument in a footnote
did not prejudice appellants, given that appellants detected
respondents’ argument and offered a response in their reply brief.
(See Doe v. Marysville Joint Unified School Dist. (2023)
89 Cal.App.5th 910, 914, fn. 3 [recognizing that an appellate
court has the discretion to excuse a party’s failure to adhere to
appellate briefing requirements, and exercising that discretion in
part because the briefing deficiencies did not prevent the other
side from “substantively respond[ing] to [the party’s]
arguments”].)
29
Development Agreement’s “parameters” for Eligible Uses. The
excerpt from the trial court’s ruling appellants cite for this
proposition cannot withstand the weight they place upon it.
On the page they cite, the court explained that appellants
had “argue[d] that the [CEMEX p]roject, which contemplates an
open-air gravel storage and distribution facility, does not
constitute a ‘substantial change’ from the Development
Agreement because the Agreement permits the operation of a
facility which sells and stores gravel.” (Italics omitted.) The
court went on to state, “While CEMEX’s use of the Parcel might
be consistent with the Development Agreement, this does not
mean that such ‘Permitted Use’ was contemplated by the subject
EIR.” (First italics omitted, second italics added.) This is hardly
a finding that CEMEX’s use of Parcel A is an Eligible Use.
Although the DRB determined that CEMEX’s “gravel
(aggregate) sales and storage facility . . . is a Permitted Use in
the M (Manufacturing) zone,” the DRB did not mention the
limitations imposed by Municipal Code sections 17.40.030.A and
17.04.090.
Appellants maintain that the City’s “interpretation of a
local ordinance . . . ‘is entitled to great weight unless it is clearly
erroneous or unauthorized.’ ” (Quoting Friends of Davis v. City of
Davis (2000) 83 Cal.App.4th 1004, 1015.) Appellants make this
argument in support of a different proposition, that is, that the
DRB’s design review process is exempt from CEQA. Specifically,
they argue we should defer to the City’s “view that the
Development Agreement’s design review process does not provide
the DRB with authority to impose environmental-related
conditions . . . .” Appellants do not argue expressly that we
should defer to the DRB’s apparent construction of the City’s
30
zoning ordinances. Regardless, as set forth above, the plain
meaning of Municipal Code sections 17.40.030.A and 17.04.090
establishes that M zone uses that are not conducted within a
completely enclosed building require Planning Commission and
City Council approval. Therefore, any contrary interpretation of
these provisions would be “clearly erroneous.” (See Friends of
Davis, at p. 1015; see also Green v. State of California (2007)
42 Cal.4th 254, 260 [“The statute’s plain meaning controls the
court’s interpretation unless its words are ambiguous.”]; Zubarau
v. City of Palmdale (2011) 192 Cal.App.4th 289, 305 [“ ‘Statutory
construction is a question of law for the courts and the rules of
statutory construction applicable to statutes are also applicable
to local ordinances.’ ”]; Family Health Centers of San Diego,
supra, 71 Cal.App.5th at p. 97 [“While an administrative agency’s
interpretation of the laws it is charged with enforcing may be
entitled to deference, the court is the ultimate arbiter of the
interpretation of the law.”].)
c. The other entries in the Eligible Uses list upon
which appellants rely do not encompass the
roofless gravel storage facility
Appellants also suggest that regardless of whether the
CEMEX project comports with the aforementioned zoning code
restrictions on gravel sales and storage operations, the roofless
gravel storage building is authorized by the following entries
found within the “Permitted Uses” subset of the list of Eligible
Uses: “distribution”; “logistics”; “loading and unloading of parcels
and freight”; and “onsite railroad service and transfer facility.”
(Capitalization omitted.)
In particular, they claim the CEMEX project “is a state-of-
the art distribution facility” that “differs from a warehousing
31
operation only in the type of product received at the facility for
distribution to the ultimate consumer—i.e., aggregates, which are
used to produce concrete to construct roads, housing, and public
infrastructure.” (Italics added.) Appellants also refer to the
CEMEX project as “[a]n aggregate distribution and rail transfer
facility,” and, in the course of addressing the Municipal Code
restrictions on the M zone, they ask rhetorically, “[W]hat railroad
service and transfer facility is found indoors?” Additionally, in
their reply brief, appellants point out that Eligible Uses under
the Development Agreement include “logistics” and “sorting,
loading, and unloading of parcels and freight.” (Capitalization
omitted.) Appellants further claim that respondents’ reliance on
regulations governing the M zoning district is “baseless” because
“Eligible Uses were established by the Development Agreement,
and the standards of the Development Agreement govern.”
Thus, in appellants’ view, the roofless gravel storage
building is simply a part of CEMEX’s distribution; logistics;
loading and unloading of parcels and freight; and railroad
operations on Parcel A. Under their approach, appellants need
not resort to the Municipal Code provisions governing the M zone
to establish the validity of their gravel storage facility on
Parcel A. Given that appellants’ theory is not restricted by the
provisions of the zoning code or by the particular goods listed in
the Eligible Uses list (which does not include gravel), their
interpretation would authorize the storage of any type of product
on Parcel A. As explained below, this construction of the
Agreement is unpersuasive.
“ ‘[T]he context in which a [contract] term appears is
critical. “ ‘[L]anguage in a contract must be construed in the
context of that instrument as a whole, and in the circumstances
32
of the case . . . .’ ” [Citation.]’ . . . [Citation.]” (See Mount Vernon
Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 882 (Mount
Vernon Fire Ins. Co.).)
Here, the Eligible Uses appear in the Development
Agreement for the Bell Business Center project, which is a
development proposal for which the City had certified a final
EIR. (Factual & Procedural Background, part 1, ante.) If the
Agreement were construed in the manner appellants propose,
then it would have been impractical for the City to conduct a
meaningful environmental review of the Bell Business Center
project. To discharge its obligations under CEQA, the City would
have had to assess the significant environmental effects of every
kind of good that conceivably could be distributed, transported by
rail, and stored on Parcel A. (See Applicable Law, ante
[summarizing the required contents of an EIR].) CEQA also
would have required the City to formulate mitigation measures
for each such significant environmental impact it had identified.
(See ibid.) This administrative burden undermines appellants’
expansive interpretation of the Agreement. (See Mount Vernon
Fire Ins. Co., supra, 219 Cal.App.4th at p. 882 [indicating the
parties’ “reasonable expectations” govern a court’s interpretation
of a contract, italics omitted].)
Furthermore, the City explained in the EIR that—just as is
the case in the M zoning district—the Municipal Code typically
requires uses in the CM zone to be conducted within a completely
enclosed building. The City further stated that the Bell Business
Center project was “consistent with the existing . . . zoning for the
project site” in part because “[t]he intent of the proposed project
is to construct sufficient building area to allow all uses to be
conducted in an enclosed building.” The City thus concluded the
33
Bell Business Center project presented no “conflict with . . . [the]
zoning ordinance” that needed to be addressed by “mitigation
measures.” (Boldface, capitalization, & underscoring omitted.)
This analysis from the EIR indicates that the municipality
regards the completely enclosed building requirement as a “land
use . . . regulation adopted for the purpose of avoiding or
mitigating an environmental effect.”17
Because appellants’ proffered interpretation of the
Agreement would ignore and contradict other portions of the
Agreement18 and yield an absurd result, we find it unpersuasive.
(See West Pueblo Partners, LLC v. Stone Brewing Co., LLC (2023)
90 Cal.App.5th 1179, 1185 [“[T]he court ‘should avoid an
interpretation [of a contract] . . . which would result in an
absurdity . . . .’ ”].)
For the foregoing reasons, appellants have failed to
demonstrate that the roofless gravel storage building constitutes
an Eligible Use under the Agreement.
17 (See 14 Cal. Code Regs., Div. 6, Ch. 3, App’x G, § XI,
subd. (b) [excerpt from checklist included with the CEQA
Guidelines to assist a public agency in determining whether it
should analyze certain potentially significant environmental
impacts].)
18 The Agreement contains several provisions indicating
that the EIR is incorporated by reference therein. For instance,
Section 4.4 provides in relevant part: “[T]he Developer [(PI Bell)]
shall have a vested right . . . to receive from the City all Future
Development Approvals for the Site that are consistent with, and
implement, the EIR and this Agreement . . . .” (Italics added.)
34
3. Appellants fail to establish that the DRB’s authority
to approve minor modifications resuscitates the DRB’s
erroneous substantial conformance determination
As we have noted in our Factual and Procedural
Background, part 3, ante, the DRB made the following statement
in its resolution: “To the extent any of the foregoing findings
[provided in the resolution approving CEMEX’s design review
application] were overturned, in the alternative, any deviations
by the Project are found to be minor within the meaning of
Section 5D of Exhibit C . . . .” (Boldface omitted.) Citing this
finding, appellants claim “the DRB . . . properly determined that,
even if the design of the [CEMEX project] deviated from the
design requirements of the governing documents, it could be
approved” pursuant to the DRB’s authority to make “minor
modification[s].” For instance, appellants maintain this provision
of the Development Agreement authorized the DRB to approve
any deviations between the CEMEX project and the Site Plans
included in the Basic Design Concept.
Section 5D of Exhibit C to the Agreement confers upon the
DRB “the subjective authority to administratively approve minor
modifications to the Basic Design Concept subsequent to approval
by the Bell City Council, under this Agreement and the Project
Entitlements.” (Italics added.) Section 5D further provides that
“[a]pproval of any minor modification is contingent upon the
[DRB] finding that such modification”: (1) “is consistent with the
maximum total square footage for the Project;” (2) “is in
substantial compliance with the fundamental theme, idiom, and
design intent of the Basic Design Concept as described in
Exhibit C1;” (3) “promotes the Public Benefits outlined in
Section K of the Development Agreement;” and (4) “would not
35
require additional environmental review subject to Section 15162
of the CEQA Guidelines.”
Appellants admit that Section 5D of Exhibit C grants the
DRB “the authority to approve minor modifications to the Basic
Design Concept.” (Italics added.) The list of Eligible Uses is not
found within the Basic Design Concept. The Basic Design
Concept is Exhibit C1 to the Development Agreement, whereas
the “Eligible Uses” are listed in Exhibit C2 of the Agreement.
(Discussion, part A.1, ante.) “Eligible Uses” are defined in
Exhibit C2.
Admittedly, the “[e]xamples of minor modifications”
provided in Section 5D include the following language:
“Variances to the Development Standards, including building size
or magnitude not more than 10%, except that reductions in size
may be subject to approval of the [DRB], except where the [DRB]
believes such approval should be within the discretion of the City
Council.” The Development Standards are in Exhibit C2, and not
in the Basic Design Concept in Exhibit C1. The Development
Standards include lot dimensions, maximum building height, and
the size of off-street parking spaces.
We fail to discern how reliance on Section 5D helps
appellants. They do not argue in their briefing that the DRB’s
authority to make minor modifications extends to the Eligible
Uses (as opposed to the Development Standards) in Exhibit C2.
It is true that the Development Standards and Eligible Uses are
two subcategories of Exhibit C2. Although the title of Exhibit C2
reads: “Development Standards and Permitted Land Uses
(‘Development Standards’),” appellants do not assert that the
shorthand utilized in the title signifies that the Eligible Uses
constitute “Development Standards” subject to the DRB’s
36
authority to make minor modifications. Rather, appellants treat
the Development Standards and Eligible Uses as two separate
components of Exhibit C2 in their briefing.
In any event, appellants do not claim in their briefing that
eliminating the zoning code’s requirement for Planning
Commission/City Council approval would constitute a “minor
modification” within the scope of Section 5D of Exhibit C.
(Boldface & capitalization omitted; italics added.) Indeed, such
an expansive view of the DRB’s power would contradict
appellants’ theory that “the DRB’s review was limited to the
aesthetic design” of the CEMEX project (italics added), and that
“[t]here was nothing . . . for the DRB to consider but the design
because the City long ago approved the use [of Parcel A] in the
Development Agreement,” (italics added). (See Proctor, supra,
213 Cal.App.4th at pp. 1272–1273 [relying on parties’ implicit
concessions].)
It necessarily follows that appellants have waived any
claim that the DRB could remedy the CEMEX project’s
noncompliance with the Eligible Uses restriction in the
Development Agreement. (See Golden Door Properties, LLC,
supra, 50 Cal.App.5th at p. 555 [“ ‘ “Issues not raised in an
appellant’s brief are deemed waived or abandoned.” ’ ”]; Inyo
Citizens for Better Planning, supra, 180 Cal.App.4th at p. 14
[“We do not serve as ‘backup appellate counsel,’ or make the
parties’ arguments for them.”].)
We further note that the Development Agreement
expressly confers upon the Planning Commission the authority to
permit a deviation from the Eligible Uses by issuing a conditional
use permit. That provision further suggests the DRB would not
have the power to cure the CEMEX project’s violation of the
37
Agreement’s Eligible Uses restriction. (See Gikas v. Zolin (1993)
6 Cal.4th 841, 852 [“Expressio unius est exclusio alterius. The
expression of some things in a statute necessarily means the
exclusion of other things not expressed.”]; see also Christian,
supra, 164 Cal.App.4th at p. 551 [holding that contracts are to be
“construed in accordance with substantially the same canons of
interpretation as statutes”].)
For the foregoing reasons, appellants have not overcome
the presumption of correctness accorded to the trial court’s
judgment in respondents’ favor on the first cause of action. (See
Shenouda, supra, 27 Cal.App.5th at p. 512 [“Because judgments
of the trial court are presumed to be correct, the appellant bears
the burden to affirmatively demonstrate error, and must show
that the error was prejudicial.”].)
4. With one exception, we do not reach other claims and
subclaims respondents advance in support of the
judgment on their first cause of action
In affirming the judgment on respondents’ first cause of
action for writ of mandamus, we—with one exception discussed
below—express no opinion on the other challenges respondents
raise to the DRB’s substantial conformance determination. These
other claims (even excluding their various attendant subparts)
include that: the CEMEX facility does not substantially conform
to the Basic Design Concept, the CEMEX facility is inconsistent
with the Development Agreement’s Conditions of Approval, and
the CEMEX facility is inconsistent with the EIR. We decline to
decide these issues because our conclusion that the CEMEX
project does not satisfy the Eligible Use restriction of the
Agreement is a sufficient ground to affirm the trial court’s ruling
on the first cause of action. In addition, as explained in
38
Discussion, part B, post, we have no basis on this record to
determine what actions the parties will take in light of our ruling
and whether respondents’ other challenges regarding substantial
conformance would still be relevant depending on such yet to be
identified actions.
We do exercise our discretion to address respondents’
assertion in their briefing and at oral argument that the
Development Agreement authorizes only “a parcel distribution
warehouse” on Parcel A. (See In re D.P. (2023) 14 Cal.5th 266,
282 (D.P.) [holding that “courts may exercise their ‘inherent
discretion’ to reach the merits of” moot questions].) In particular,
respondents argue “that [the] Development Agreement
contemplated a specific type of use: warehouse distribution
centers served by truck . . . .” Respondents intimate that because
the three Site plans for Parcel A included in the Basic Design
Concept “all . . . portray a large warehouse building occupying
most of the site,” no proposal for an Eligible Use other than a
parcel distribution center could substantially conform to the
design requirements of the Basic Design Concept. Respondents
seem to go even further, suggesting that the DRB lacked
authority to approve a minor modification authorizing a facility
other than the large warehouses depicted on the Site plans, given
that any such modification could not “substantial[ly] compl[y]
with the fundamental theme, idiom, and design intent of the
Basic Design Concept . . . .”
We reject the notion that the Agreement restricts the
development of Parcel A to only a “FedEx-like warehouse.”
We must construe the Development Agreement’s provisions
together, rather than in isolation from one another. (See
Department of Alcoholic Beverage Control v. Alcoholic Beverage
39
Control Appeals Bd. (2018) 29 Cal.App.5th 410, 418 [“In
construing a contract or other written instrument, we consider it
‘as a whole and interpret the language in context, rather than
interpret a provision in isolation.’ ”].) Interpreting the Basic
Design Concept as a proscription on any use other than a parcel
distribution warehouse would violate that precept by rendering
the other Eligible Uses superfluous. (See United Farmers Agents
Assn., Inc. v. Farmers Group, Inc. (2019) 32 Cal.App.5th 478, 495
[“We strive to ‘give effect to all of a contract’s terms, and to avoid
interpretations that render any portion superfluous, void or
inexplicable.’ ”].) In sum, we hold that a parcel distribution
warehouse is not the only type of use permissible on Parcel A.
B. Our Affirmance of the Trial Court’s Ruling on the
Mandamus Cause of Action Moots Appellants’
Challenges Vis-à-Vis the CEQA Causes of Action
“ ‘California courts will decide only justiciable
controversies. [Citations.] The concept of justiciability is a tenet
of common law jurisprudence and embodies “[t]he principle that
courts will not entertain an action which is not founded on an
actual controversy . . . .” [Citations.] . . . .’ [M]oot cases ‘are
“[t]hose in which an actual controversy did exist but, by the
passage of time or a change in circumstances, ceased to exist.”
[Citation.]’ [Citation.] [¶] . . . ‘The pivotal question in
determining if a case is moot is . . . whether the court can grant
the [party] any effectual relief. [Citations.] . . . . [Citations.]’
[Citations.]” (See Parkford Owners for a Better Community v.
County of Placer (2020) 54 Cal.App.5th 714, 722 (Parkford
Owners for a Better Community).)
“For relief to be ‘effective,’ two requirements must be met.
First, the [party] must complain of an ongoing harm. Second, the
40
harm must be redressable or capable of being rectified by the
outcome the [party] seeks.” (See D.P., supra, 14 Cal.5th at
p. 276.) “[R]elief is effective when it ‘can have a practical,
tangible impact on the parties’ conduct or legal status.’
[Citation.]” (See id. at p. 277.) Allegations of “speculative future
harm” are not “sufficient to avoid mootness.” (See id. at pp. 278,
282.)
Respondents contend that we “need not reach the trial
court’s ruling on [their] second and third causes of action” if we
affirm the judgment in their favor on the first cause of action for
writ of mandamus. In support of this contention, respondents
claim that affirmance of the disposition of their first cause of
action “would require the City to follow the amendment
procedures set out in the Development Agreement—and conduct
further environmental review of the CEMEX facility under
CEQA . . . .” Appellants offer no response to this argument in
their reply brief. We agree with respondents to the extent our
affirmance of the judgment on the first cause of action moots
appellants’ challenges to the judgment on the remaining causes
of action.
The trial court granted the following relief on respondents’
two CEQA causes of action (i.e., the second and third causes of
action): “[A] peremptory writ of mandate shall issue providing as
follows: [¶] . . . [¶] City of Bell shall: [¶] A. Withdraw and set
aside the Bell [DRB]’s Notice of Exemption filed on
February 5, 2019 concerning the CEMEX project; [¶] B. Take
such additional steps under CEQA as it deems proper; and [¶]
C. File a return to the writ confirming that the above-described
actions have been taken and/or that a notice of appeal has been
filed.”
41
We conclude that our affirmance regarding the first cause
of action moots the trial court’s order requiring the City to set
aside the Notice of Exemption. By its terms, the Notice was
intended to exempt from CEQA the “adoption of Resolution 2018-
23-DRB,” which is the DRB’s resolution granting design review
approval for the CEMEX project. We affirm the trial court’s
judgment setting aside the substantial conformance
determination underlying that resolution. (See Discussion,
part A, ante.) Because Section 6.2.4 of the Agreement conditions
the DRB’s authority to grant design approval on the propriety of
its substantial conformance determination (see Discussion,
part A.1, ante), the DRB’s resolution is no longer valid. Indeed,
according to appellants’ interpretation of the judgment, the trial
court “ordered that the DRB’s approval be set aside.” (Italics
added.) Given that the Notice of Exemption now pertains to an
invalid DRB resolution, that Notice can have no practical or
tangible impact on the parties’ conduct or legal status.
Because we do not know what steps the parties will take
given that the DRB resolution is now invalid, it would not be
appropriate for us to opine on whether the trial court erred in
ordering the City to “[t]ake such additional steps under CEQA as
[the City] deems proper.” We do not know whether CEMEX will
seek approvals from the Planning Commission and City Council
to be able to maintain its current use of Parcel A, and whether
CEQA would require City officials to undertake further
environmental review as part of any such approval process. If
the City requires changes to the CEMEX project as a condition of
42
approval,19 that decision could trigger the City’s obligation to
conduct further environmental review even in the absence of the
trial court’s judgment on the CEQA claims. (See CEQA
Guidelines, § 15162, subd. (a)(1) [requiring a subsequent EIR to
be prepared if “[s]ubstantial changes are proposed in the project
which will require major revisions of the previous EIR . . . due to
the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified
significant effects”].)
We do not know whether CEMEX will seek an ordinance
amending the Development Agreement pursuant to Section 7.2
thereof to permit an uncovered storage facility, and whether the
City will impose new conditions in such an ordinance that could
implicate further CEQA review.
We are thus loathe to render an advisory opinion on CEQA
obligations when we have no information as to how Parcel A will
be used in light of our ruling in favor of respondents on the first
cause of action. For all these reasons, we conclude that
appellants’ challenges to the trial court’s judgment on the second
and third causes of action are moot. (Cf. In re Briana V. (2015)
236 Cal.App.4th 297, 299, 308, 311–312 [indicating that an
appellate court’s affirmance of one aspect of an appealed order
can, under certain circumstances, render nonjusticiable an
19 The City has required changes to the CEMEX project in
the past. Specifically, appellants admit that after East Yard
challenged the prior iteration of the project, appellants entered
into a settlement requiring that changes be made to CEMEX’s
proposal, including the inclusion of a “fully enclose[d] . . .
conveyor system [and the] implement[ation of] a dust control and
storm water plan . . . .”
43
appellant’s challenge to other portions of that order].)
Additionally, because respondents conceded in their briefing that
our affirmance on the first cause of action would moot appellants’
challenges to the second and third causes of action, and
appellants make no argument to the contrary in their briefing,
we decline to decide whether the trial court’s rulings on the
CEQA causes of action were erroneous. (See Parkford Owners for
a Better Community, supra, 54 Cal.App.5th at p. 721 [indicating
that an appellant’s “burden of demonstrating reversible error”
includes an obligation to rebut a persuasive claim of mootness].)
We turn next to the proper disposition of the judgment on
respondents’ second and third causes of action. “ ‘ “As a general
rule, ‘an appeal presenting only abstract or academic questions is
subject to dismissal as moot.’ [Citation.]” [Citation.]’ [Citation.]”
(Vernon v. State of California (2004) 116 Cal.App.4th 114, 120.)
A different disposition is appropriate “[i]n some instances,
however . . . .” (See Delta Stewardship Council Cases (2020)
48 Cal.App.5th 1014, 1054–1055 (Delta Stewardship Council
Cases).) Specifically, “[w]hen the basis for the trial court’s
judgment becomes nonexistent due to postjudgment acts or
events [(i.e., when the judgment itself has become moot)], an
appellate court should ‘ “dispose of the case, not merely of the
appellate proceeding which brought it here.” [Citation.] That
result can be achieved by reversing the judgment solely for the
purpose of restoring the matter to the jurisdiction of the superior
court, with directions to the court to dismiss the proceeding.
[Citations.] Such a reversal, of course, does not imply approval of
a contrary judgment, but is merely a procedural step necessary to
a proper disposition of th[e] case.’ [Citation.]” (See id. at
p. 1055.)
44
Our affirmance on the first cause of action not only moots
appellants’ challenges regarding the second and third causes of
action, but also the judgment adjudicating those two CEQA
claims. Upon the issuance of our remittitur, the trial court will
be empowered to enforce the portion of the judgment requiring
the City to set aside the DRB’s approval of the CEMEX project.20
As we explained earlier in this part, setting aside the DRB’s
decision (a) nullifies the legal significance of the Notice of
Exemption; and (b) allows the parties to undertake numerous
potential courses of action in connection with CEMEX’s use of
Parcel A, thereby rendering an analysis of the City’s CEQA
obligations—including the trial court’s ruling on those issues—an
advisory opinion.
Accordingly, we reverse the trial court’s judgment on the
second and third causes of action, and remand the matter to the
trial court for the purpose of “vacating [those aspects of the]
judgment[ ] solely on the ground of mootness.” (See Delta
Stewardship Council Cases, supra, 48 Cal.App.5th at pp. 1055–
1056 [utilizing this disposition].) “In following this procedure,
we . . . appropriately avoid affirming th[ose portions of the]
judgment[ ] by implication.” (See id. at p. 1056.) We express no
opinion on whether the judgment on those two causes of action
was erroneous. (See id. at pp. 1055–1056.)
20 (See In re Anna S. (2010) 180 Cal.App.4th 1489, 1499
[“Generally the filing of a notice of appeal deprives the trial court
of jurisdiction of the cause and vests jurisdiction with the
appellate court until the reviewing court issues a remittitur.”],
citing, inter alia, Code Civ. Proc., § 916, subd. (a) [“[T]he
perfecting of an appeal stays . . . enforcement of the [appealed]
judgment . . . .”].)
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DISPOSITION
We affirm the judgment in respondents’ favor on the first
cause of action for writ of administrative mandamus. We reverse
the judgment on respondents’ second and third causes of action,
and remand this matter to the trial court with directions to
vacate as moot the judgment on those two causes of action. We
express no opinion on whether the trial court erred regarding the
second and third causes of action. Respondents are awarded
their costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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