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Katzeff v. California Dep't of Forestry and Fire Protection

January 28, 2010

PAUL KATZEFF, PLAINTIFF AND APPELLANT,
v.
CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION ET AL., DEFENDANTS AND RESPONDENTS; GREG KULJIAN AND ED POWERS, REAL PARTIES IN INTEREST.



(Mendocino County Super. Ct. No. SCTMCVG 08-51346) Trial Judge: Honorable Richard J. Henderson

The opinion of the court was delivered by: Rivera, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

In this case, we are called upon to decide whether the California Department of Forestry and Fire Protection (CDF) properly granted an exemption allowing the harvesting of less than three acres of timber without environmental review, when one of the mitigation measures to two prior timber harvesting plans for the same property was that the trees in question remain in place to protect a neighboring property from excessive wind. The trial court decided CDF properly granted the exemption, and entered judgment on the pleadings in plaintiff Paul Katzeff's action for violations of the California Environmental Quality Act (CEQA) (Pub. Res. Code,*fn2 § 21000 et seq.), violations of the Z'Berg-Nejedly Forest Practice Act of 1973 (§ 4511 et seq.) (the FPA), and nuisance. We reverse.

I. BACKGROUND

This action was brought against CDF, Gregg Kuljian, and Ed Powers (collectively respondents) in April 2008, seeking to set aside CDF's approval of an exemption allowing the conversion of less than three acres of timber on Kuljian's property. According to the first amended complaint and petition for writ of mandate (the complaint),*fn3 plaintiff and Kuljian own adjoining parcels of property. In 1988, CDF approved a Timber Harvest Plan (THP) on Kuljian's land (the property) (the 1988 THP).*fn4 CDF concluded that the THP as proposed would allow wind to be funneled and accelerated, creating a threat of damage to Katzeff's property and home. Accordingly, as one of the conditions of approval, CDF required that " `no trees . . . be removed from within 200 feet of [Katzeff's home] unless prior approval is obtained from [Katzeff].' "

CDF approved another THP for the same location 10 years later, in 1998 (the 1998 THP). Noting the apparent effectiveness of the wind buffer, CDF again required the landowner to refrain from cutting down trees within 200 feet of Katzeff's house.

Some years later, Powers sold the property to Kuljian. Kuljian could not afford to pay the purchase price, and so as a condition of the sale, he agreed to seek a "conversion exemption" pursuant to section 4584, subdivision (g), and to give Powers the right to log and sell the timber.*fn5 In the application for the conversion exemption, Kuljian stated he intended to convert the timberland to an orchard. In April 2008, CDF "accepted and thereby approved" the conversion exemption.

In his first cause of action, Katzeff alleged that the conversion exemption violated the FPA and CEQA in that it would destroy a mitigation previously deemed necessary. In his second cause of action, he alleged that Kuljian did not have a bona fide intent to convert the land to an orchard. The third cause of action alleged a claim for private nuisance.

Powers moved for judgment on the pleadings on the ground that the complaint did not state a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B).) The trial court granted the motion and dismissed the action in its entirety. Katzeff appealed.*fn6

II. DISCUSSION

A. Standard of Review

" `Review of a judgment on the pleadings requires the appellate court to determine, de novo and as a matter of law, whether the complaint states a cause of action. [Citation.] For purposes of this review, we accept as true all material facts alleged in the complaint. [Citation.] . . . [¶] . . . `[W]e give the complaint a reasonable interpretation by reading it as a whole and all of its parts in their context. [Citations.] We are not concerned with a plaintiff's possible inability to prove the claims made in the complaint, the allegations of which are accepted as true and liberally construed with a view toward attaining substantial justice. [Citations.]' [Citation.]" (Ludgate, supra, 82 Cal.App.4th at p. 602.) "The grounds for the motion must appear on the face of the complaint, and in any matters subject to judicial notice. (Code Civ. Proc., § 438, subd. (d).)" (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)

B. Requirements of FPA and CEQA

" `Timber harvesting operations in this state must be conducted in accordance with the provisions of the Forest Practice Act. The [FPA] was intended to create and maintain a comprehensive system for regulating timber harvesting in order to achieve two goals: (1) to ensure that "[w]here feasible, the productivity of timberlands is restored, enhanced, and maintained"; and (2) to ensure that "[t]he goal of maximum sustained production of high-quality timber products is achieved while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, . . . and aesthetic enjoyment." (. . . § 4513.) . . .' [Citation.] [¶] The [FPA] requires timber owners or operators on private land to submit a timber harvest plan specific to the site and planned logging activity to CDF for approval before harvesting. . . . [¶] CDF's approval of timber operations is generally subject to CEQA, but under section 21080.5, the [FPA's] regulatory scheme has been certified for exemption from CEQA's requirements for preparation of an environmental impact report (EIR) before approval of a project. [Citation.] `Under the terms of section 21080.5, subdivision (c), that certification expressly exempts the timber harvesting plan process from the provisions of chapters 3 and 4 and section 21167 of CEQA. (§ 21080.5, subd. (c).) Chapters 3 and 4 deal, in large part, with the various ...


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