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Del Cerro Mobile Estates v. City of Placentia et al

June 7, 2011


Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. (Super. Ct. No. 30-2008-00180072)

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

pub. order 7/7/11 (see end of opn.)



Del Cerro Mobile Estates (Del Cerro) appeals from a judgment of dismissal after the trial court sustained a demurrer filed by the Orange County Transportation Authority (OCTA) and the City of Placentia and its city council (the City) to Del Cerro's first amended complaint for declaratory and injunctive relief and petition for writ of mandate. Del Cerro challenged the adequacy, under the California Environmental Quality Act (CEQA) (see Pub. Resources Code, § 21000 et seq.),*fn1 of the City's environmental impact report (EIR) concerning a planned railroad grade separation project. These projects "eliminate vehicle-rail conflicts" (Natural Resources Defense Council, Inc. v. City of Los Angeles (2002) 103 Cal.App.4th 268, 272) and include "the grade separation and other structures that actually separate the vehicular roadway from the railroad tracks," plus "all approaches, ramps, connections, drainage, and other construction required to make the grade separation operable and to effect the separation of grades" (Sts. & Hy. Code, § 2450, subd. (b).) OCTA had intervened in the lawsuit to point out that grade separation projects that eliminate railway crossings are expressly exempt from CEQA requirements (§ 21080.13), and therefore Del Cerro's CEQA-based challenge failed.

On appeal, asserting principles of waiver and estoppel, Del Cerro argues the City's reliance on CEQA to prepare the EIR should have prevented the City and OCTA from raising -- and the trial court from recognizing -- CEQA's inapplicability to grade separation projects. Additionally, relying on section 21080.13's phrasing in the singular rather than the plural, Del Cerro argues the CEQA grade separation exemption does not apply because this project involves several rail crossings instead of just one. As we explain, Del Cerro's waiver, estoppel, and statutory construction challenges have no merit. Finally, anticipating the City or OCTA will depart from environmental mitigation measures the City adopted in resolutions concerning the project, Del Cerro argues the trial court improperly sustained the demurrer because the complaint and mandate petition included allegations based on the City's resolutions, not just CEQA. This challenge is not ripe. Consequently, we affirm the judgment.



Alleging a mobile home park it owns and operates will be "impacted" in an undefined way by a "grade separation project, known as the Orange County Gateway Project" (project), Del Cerro sued the City seeking a declaratory judgment the City's approval of the project, including a faulty EIR, violated CEQA. The EIR specified the purpose of the project was to increase public safety, improve traffic, increase the efficiency of the local transportation system, reduce train noise and whistles, reduce emergency vehicle response times, and reduce air pollution from idling vehicles at rail crossings. The city council approved and certified the completed EIR by a resolution adopted in November 2008 and, on the same day, the city council adopted a related resolution rejecting some alternatives for implementing the project and selecting one known as Alternative D, which consisted of constructing six railway overcrossings and one undercrossing. The adopting resolutions incorporated in attached findings "those feasible mitigation measures within the responsibility and jurisdiction of the implementing agency" and also adopted a Mitigation Monitoring and Reporting Program (MMRP). The MMRP required the City "to ensure compliance with each of the adopted mitigation measures in the MMRP because significant adverse environmental impacts could result from the selected project if the mitigation measures are not implemented." Del Cerro sought injunctive and mandamus relief prohibiting any further proceedings until the City complied with CEQA. Del Cerro alleged that in preparing the EIR the City itself concluded CEQA applied to the project.

In January 2010, the parties stipulated to allow OCTA to intervene. That same month, for the first time since the City filed its January 2002 notice of preparation of an EIR, OCTA broached in a status conference the issue of an EIR exemption. OCTA claimed that under section 21080.13, "CEQA does not apply to railroad grade separation projects, such as the instant project, which eliminate existing grade crossings."

Based on section 21080.13, OCTA filed a demurrer to Del Cerro's complaint and mandate petition, which the City joined. Del Cerro responded with an amended complaint and petition "in Response to Demurrer." The amended filing retained claims that the City's EIR violated CEQA, but added new language asserting the City's alleged actions in distancing itself from the EIR and associated mitigation measures violated the City's own resolutions, as we explain in more detail below. Concluding it was "clear" section 21080.13's grade separation exemption applied to the project and unable "to figure out anything that could be pleaded that would be curative," the trial court sustained the demurrer without leave to amend. The trial court entered judgment and Del Cerro now appeals.



A. Standard of Review

"On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, 'i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.' [Citation.]" (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1445.) We turn to the pleadings for the operative facts, "'"treat[ing] the demurrer as admitting all material facts properly pleaded, but not ...

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