Filed 3/28/13 Save Our Agricultural Land v. County of Santa Cruz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

SAVE OUR AGRICULTURAL LAND et al.,

Plaintiffs and Appellants,

v. COUNTY OF SANTA CRUZ, Defendant and Respondent;

COAST DAIRIES AND LAND CORPORATION et al.,

Real Parties in Interest and Respondents. H036570 (Santa Cruz County Super. Ct. No. CV167019)

Appellants Save Our Agricultural Land , Rural Bonny Doon Association, Don Croll, Bruce Kosanovic, Celia Scott and Jodi Frediani (hereafter collectively appellants) filed a petition for writ of mandate and comp laint alleging that respondents and real parties in interest County of Santa Cruz (County), Coast Dairies and Land Corporation (CDLC) and the Trust for Public Land (TPL) 1 were in violation of the California Coastal Act and the Subdivision Map Act, as well as certain local ordinances in relation to a proposed transfer of property to the United St ates Bureau of Land Management (BLM),

and two other unrelated entities.

1 County, CDLC and TPL w ill be sometimes referred to collectively herein as respondents.2 The trial court sustained demurrers to the petition and complaint without leave to amend on the grounds that appellants’ claims were not “ripe” for adjudication unless or until CDLC actually “attempts to subdivide the subject pa rcel” and unless the “County makes an actual and final decision, rather than an advisory determin ation, pursuant to the procedures of the Coastal Act that the su bdivision is not a de velopment within the meaning of the California Coastal Act.” Appellants contend the tria l court erred in sustaining the demurrers without leave to amend on the grounds that the claims rais ed were not “ripe.” Due to events which transpired during the pendency of this appeal, appellants’ causes of action based on the County and CDLC’s failure to obtain a coas tal development permit (CDP) or request an opinion from the Coastal Commission prior to permitting transfer of the Coast Dairies Property (Property) are now moot. However, we do agree that the tr ial court improperly

sustained the demurrer to the causes of ac tion based on the Subdivision Map Act and

shall therefore reverse.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND A. First amended verified petition and complaint 2 1. Alleged facts The Property consists of an approximat ely 6400-acre parcel of land, located inland of Highway 1 in Santa Cruz Co unty within th e Coastal Zone established by the California Coastal Act, and it contains “an imminent reve rsionary interest in a portion of the water supply for the Town of Dave nport as well as important ag ricultural and timber lands, and highly sensitive environmental resources.” Th e Property has been owned by CDLC since 1902. On October 26, 1998, TPL purchased CD LC and subsequently developed a plan to

2 The first amended verifi ed petition and complaint wa s filed after the County, TPL and Coast Dairies’ demurrers to the initial verified petition and complaint were sustained with leave to amend.3 transfer the Property to th e BLM. After BLM indicated it would not acce pt any portion of the Property used for agriculture, farm labor housing and/or di sposal of industrial waste, cement dust or slurry, TPL and CDLC re vised the plan to exclude such areas from the proposed transfer. On March 1, 2004, the Coastal Commissi on wrote to TPL advising that it would have to obtain a CDP from the County in or der to proceed with the proposed subdivision of land. The County also wrote a letter to TPL indicating that the proposed transfer would not be exempted from the CDP requirement since BLM would allow nonrecreational uses of the Property and requ esting that TPL provide a “clearer statement and confirmation of the [Property’s] uses . . . to ensure that a violation of the Coastal Act does not take place.” On August 26, 2004 , the County notified CDLC that its “proposed division” might raise Subdivision Map Act and Coastal Act i ssues and the proposed “conveyances would result in the creation of multiple remai nders” within two pa rcels. The County recommended exploring alternative property c onfigurations which might “prove helpful in resolving potential conflic ts with the [Subdivision] Ma p Act.” Once any Subdivision Map Act issues were resolved, the parties coul d work on deciding the Coastal Act issues.

In order to avoid the Subdivision Map Act’s prohibition on creating multiple remainder parcels, CDLC reconfigured the pa rcel map to have tw o smaller agricultural lots connected to a larger agricultural lot by a one-foot wide strip of land running a

considerable distance along Highway 1. In a letter dated September 27, 2007, to the Coastal Commission and a letter dated October 17, 2007, to the County, CDLC summar ized the status of its proposed transfers of portions of the Property. In its letter to the County, CDLC indicated that the Coastal Commission “awaits notification from the County, as the lead agency that this proposed division does not require a [CDP].”4 Upon being informed in 20 08 that CDLC was proceeding with its plan to divide the Property and transfer portions thereo f to BLM and the other entities, appellants notified the County and the Coastal Commiss ion that it understo od those entities would require a CDP and subdivision approval before allowing CDLC to fo llow through with its plan. On September 23, 2009, appellants ag ain notified the County that the proposed division would require a CDP and that, if the County disagreed, it was obligated under the Coastal Act to request an opinion from the Coastal Commission’s Executive Director. On February 1, 2010, the County Planning Director wr ote to appellants advising that the County would not require CDLC to obta in a CDP for the proposed transfer of the Property to BLM nor would the County seek an opinion regarding the matter from the

Executive Director of the Coastal Commission. On July 12, 2010 , the Coastal Commission wrote to County advising that it must seek an opinion from th e Executive Director to resolve the question of whether or not a

CDP must be obtained befo re the Property is divided and/or transferred. Despite these notifications, the County ha s refused to require TPL and CDLC to obtain a CDP or proceed under the Subd ivision Map Act and the County’s own regulations before transferring the Property. In addition, the County has refused to seek an opinion from the Coastal Co mmission’s Executive Director regarding the necessity of a CDP, and this is part of a pattern a nd practice to violate the Coastal Act, its implementing regulations and the County’s Local Coastal Program. 2. Causes of action

The first amended verifi ed petition and complaint lists six causes of action, described in more detail below: (1) declar atory relief; (2) petition for writ of mandate directing County to seek a CDP prior to allo wing the transfer of the property; (3) petition for writ of mandate directing County to co mply with the Subdivision Map Act and the County’s Subdivision Ordinan ce; (4) petition for writ of mandate directing County to seek an opinion from the Coas tal Commission on the necessity for a CDP; (5) petition for5 writ of mandate alleging County has a pattern and practice of denyin g interested persons their rights to access the dispute resolution process provided by title 14 of the California Code of Regulations, section 13569 and Sant a Cruz County Code section 13.20.085 and directing County to comply w ith these provisions; and (6) equitable relief/injunction. a. First cause of action The first cause of action for declaratory relief alleges that th ere is an actual controversy between appellants and respon dents regarding whether or not a CDP, subdivision approval and/or conditional certif icates of compliance must be obtained before the proposed transfer of the Prope rty may take place. A second alleged controversy involves the County’s failure to re quest an opinion of the Executive Director

of the California Coastal Commission. In conne ction with this cause of action, appellants seek a judicial declaration th at County must: (1) require TPL to obtain a CDP, and other “legally-required approvals,” prio r to any division or transfer of the Property to any other persons; (2) request an opinion from the Ex ecutive Director concerning this matter and proceed in accordance with that opinion; and (3) cease its current pattern and practice and request an opinion from the Executive Direct or whenever any person properly requests that the County seek such an opinion in compliance with the applicable regulations. b. Second cause of action In the second cause of action, appellant s allege that Santa Cruz County Code section 13.20.050, a part of the County’s Local Coastal Program (LCP) “provides that any person wishing to undertake any ‘development,’ as that term is defined in Santa Cruz County Code [s]ection 13.20.040, must first obt ain a Coastal Zone Approval.” Similarly, “the Coastal Act requires a CDP for all ‘dev elopment’ within the Coastal Zone.” The relevant definition of “development” includes any “ ‘change in the density or intensity of use of land, including but not limited to, subdi vision pursuant to the Subdivision Map Act . . . , and any other division of land, including lot splits, exce pt where the land division is brought about in connection with the purchase of such land by a public agency for public6 recreational use.’ ” Appellants allege the proposed division of the Property would not qualify for the public agency ex ception under either the Coasta l Act of the LCP. Because the County has refused to re quire Coast Dairies and TPL to apply for or obtain a CDP, appellants seek a writ of mandamus directing the County to (1) set aside its decision that no CDP is required for any divisi on and/or transfer of the Property; and (2) require Coast Dairies and TPL to apply fo r and obtain a CDP before a llowing the Property to be

divided and transferred. c. Third cause of action In this cause of action, appellants a llege Government Code section 66499.33 provides “ ‘any person’ may file suit ‘to restrain or enjoin any attempted or proposed subdivision [. . .] in violation of this division or local ordinance enacted pursuant thereto.’ (Emphasis added).” Because Co ast Dairies and TPL have propos ed to divide and transfer all or a portion of the Property without ob taining approval under the Subdivision Map Act and because County has refused to requir e Coast Dairies and TPL to comply with the Subdivision Map Act or the County’s Subdi vision Ordinance, appellants seek a peremptory writ of mandate directing Co unty to comply with those laws. d. Fourth cause of action In the fourth cause of action, appellants allege that, in a letter dated September 23, 2009, they requested that the County seek an opini on from the Coastal Commission’s

Executive Director in accordan ce with title 14 of the Calif ornia Code of Regulations, section 13569 regarding whether or not a CD P was required for the proposed transfer of the Property. By letter dated February 1, 20 10, the County expressly declined to consult with or notify the Coastal Commission and seek an opinion from the Executive Director of the Coastal Commission, yet it has failed to do so. Appellants seek a writ of mandate directing the County to comply with that regulation.7 e. Fifth cause of action In the fifth cause of action, appellants alle ge that the County’s failure to request an opinion from the Executive Director of the Co astal Commission is part of a pattern and practice of “illegal conduct” by the County in denying interested persons their rights to access the dispute resolution process provide d by title 14 of the California Code of Regulations, section 13569 and Santa Cruz C ounty Code section 13.20.085. According to appellants, “the County has failed and refu sed to perform this mandatory duty as to at least two other development proposals where a request that it obtain an opinion of the

Executive Director of the Co astal Commission was duly made.” Appellants again seek a writ of mandate directing the County to co mply with the regulation and ordinance. f. Sixth cause of action In its sixth cause of action, appellants alle ge that equitable relief is available under both the Coastal Act and the Subdivision Map Act to restrain violations of those statutes to enjoin the division and transfer of the Property by TPL and CD LC until the necessary permits are obtained.

B. Demurrer and order Respondents demurred to the verified fi rst amended complaint and to each cause of action therein on the ground that it failed to state a valid cause of action and also on the ground that the claims asse rted therein were not ripe fo r determination since TPL and CDLC had not yet transferred the Prop erty to BLM or any other entity. By order dated December 14, 2010, th e trial court sustained the demurrers, without leave to amend, and entered a judgment of dismissal. In its order, the court

stated that “the California Coastal Commi ssion announced it will hold a public hearing regarding this matter; and until the Co astal Commission acts any legal action is premature and not ripe for adjudication.” The court deemed the first and fourth causes of action premature until: (1) CDLC files an a pplication to divide the property; (2) the County determines the division is categorica lly exempt from a CDP; and (3) in the face8 of a claim that the proposed division is not so exempt, the County refuses to submit the dispute to the Coastal Commission. Similarly, the trial court found the second cause of action was premature until CDLC attempts to subdivide the proper ty or the County

makes an actual and final decision that the subd ivision is not a development as defined by the Coastal Act. The third cause of action, alleging a violation of the Subdivision Map Act and the County Subdi vision Ordinance, was deemed premature until such time as CDLC attempts to divide the Property. In ruling on the demurrer to the fifth cause of action, the trial court stated the claim was “unsupported by any legal authority as the County does not have a blanket policy of denying requests for opinions from the Coastal Commission under [title 14 of the California Code of Regulations,] s ection 13569.” As to the sixth cause of action, the trial court stated it was premature “for the same reasons

as set forth above for th e First through Fifth Causes of Action.” C. Requests for judicial notice Over the course of this appeal, appella nts and respondents ha ve submitted requests for judicial notice. Appellants requested that we take judicial no tice of: (1) County’s approval of a consent for consolidated permit processing for the property; (2) CDLC’s application to the Coastal Commission for a CDP; and (3) Santa Cruz County Code section 13.20.040. We granted the request as to the code section, but denied it as to the

other two documents. Appellants then requested that we take judicial notice of certain provisions from the Santa Cruz County Code, specifically sections 14.01.2 01, 14.01.010, 14.01.317, as well as the portion of Santa Cruz County’s Lo cal Coastal Program addressing objectives and policies relating to water s upply issues. We granted th at request in its entirety. Respondents subsequently requested th at we take judicial notice of two documents: (1) an application for CDP ap proved by the Coastal Commission on April 12, 2012; and (2) the Coastal Commission’s May 2, 2012 notice of intent to issue a CDP.9 We granted the request and have taken judi cial notice of both of these documents as

official acts of the California Coastal Commi ssion. (Evid. Code, § 452, subd. (c).) D. Supplemental brie fing regarding mootness In conjunction with their request for j udicial notice, respondents brought a motion to permit supplemental briefing on the issue of mootness. We granted that motion and

have received and reviewed additional briefi ng from both respondents and appellants on this subject.

II. D ISCUSSION A. Standard of review “On appeal from a dismissal entered af ter an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the petition states a cause of action as a matter of law.” ( City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4t h 861, 869.) “We deem to be true all material facts that were properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those e xpressly alleged. [Citation.] We may also consider matters that may be judicially noticed, but do not accept contentions, deductions or conclusions of fact or law.” ( Id . at pp. 869-870.) “We independently construe statutory law, as its interpretation is a ques tion of law on which we are not bound by the trial court’s analysis.” ( Id . at p. 870.)

B. Mootness As noted above, the parties have s ubmitted supplemental briefs addressing

whether or not the Coastal Commission’s deci sion to grant CDLC’s application for a CDP has rendered moot some or all of the instant appeal. In their briefs, respondents note that the amended verified petition and complaint was based, in large part, on the allegations that the proposed transfer of the Property required approval of a CDP by the Coasta l Commission. Since the Coastal Commission has now approved CDLC’s application for a CDP, there is no longer a justiciable10 controversy regarding the issue and thus all of appellants’ claims regarding the CDP are

moot. Appellants argue that approval of the CDP does not excuse CDLC’s failure to comply with the Subdivision Map Act and the County remains complicit by not requiring CDLC to proceed under the requirements of the Subdivision Map Act. According to appellants, County has “concurrent” jurisdicti on and must require CDLC to seek approval pursuant to the Subdivision Ma p Act before allowing the Pr operty to be divided and

transferred. The general rule is, “[c]ourts do not d ecide abstract questions of law. An indispensable element to jurisdiction is th at there be an actual controversy between parties who have an adversarial interest in the outcome of the litigation.” ( Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746.) Thus, courts typically do not decide moot questions since such decisions “can have no practical effect or cannot provide the parties with effective relief.” ( Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App. 4th 1049, 1069.) Accordingly, we must examine the alle gations of the petition and complaint in light of the Coastal Commission’s action on the CDP, determine what controversies

remain to be resolved and whether or not effective relief remains available to appellants. In this case, appellants’ first, second, fourth , and fifth causes of action are all exclusively premised on allegations that th e respondents were obligated to obtain a CDP and that the County, which denied having any such obliga tion, was required to request an opinion

from the Coastal Commission’s Executive Director on the ma tter. Because the Coastal Commission has granted CDLC’s application for a CDP, the first, seco nd, fourth and fifth causes of action are now moot in their entirety. There is no justiciable controversy to be decided, at least insofar as the matter of a CDP is concerned. The Coastal Commission has acted on the application and further pr oceedings on the issue would be fruitless.11 This leaves the third cause of action fo r violation of the Subdivision Map Act and

that the sixth cause of action wh ich seeks equitable/injunctive relie f to cure that violation. According to CDLC and TPL, these causes of action are also moot because the CDP results in the creation of fewer than five pa rcels and is thus exempt from the Subdivision Map Act. In its supplemental brief, the Coun ty argues that the cause of action is moot because the Coastal Commission’s “approval of the [CDP] wa s pursuant to the consolidated permit processing procedure aut horized by the California Coastal Act in

section 30601.3 of the Pub lic Resources Code.” Appellants object to CDLC’s theory that the matter is exempt from the Subdivision Map Act because th e CDP results in the creation of fewer than five parcels on the ground that this theory was not raised below or in the original briefing on appeal. Substantively, appellants note that, per county ordinance, “[a] tentative map and a parcel map shall be required for all subdivisions crea ting not more than four parcels.” (Santa Cruz County Code, § 14 .01.201, subd. (b).) We have found no authority, and resp ondents have cited no authority, which provides that proceedings under the Coastal Act either preempt or substitute for proceedings under the Subdiv ision Map Act. There appe ars to be no reason why a development which is not otherw ise exempt under either stat utory scheme should not be subject to proceedings under both. In fact , a combined applicati on under the Subdivision Map Act and the Coastal Act appears to be endorsed by Public Re sources Code section 30600, subdivision (b)(1), which authorizes local governments to “establish procedures for the filing, processing, review, modifica tion, approval, or denial of a coastal development permit,” and specifies that “[t] hose procedures may be incorporated and made a part of the procedures relating to any other appropriate land use development permit issued by the local government.” In addition, part of the Subdivision Map Act expressly confers authority on local governme ntal agencies to deny or condition a permit12 to ensure compliance w ith state law, including presumably the Coastal Act. (Gov. Code, § 66498.1, subd. (c)(2).) County’s citation to the consolidated permit processing procedure set forth in

Public Resources Code section 30601.3 is in apposite. The statut e allows the Coastal Commission to “process and act upon a cons olidated coastal development permit application if both of the following criteria are satisfied: [¶] (1) A proposed project requires a coastal development permit from bot h a local government with a certified local coastal program and the commission. [¶] (2 ) The applicant, the appropriate local government, and the commission, . . . consent to consolidate the permit action, provided that public participation is not substantially impaired by that review consolidation.” ( Id

. subd. (a).) This statute specifically referen ces consolidation of an application where a certified local coastal program is in place, a nd appears to be aimed at obviating the need to conduct separate proceedings un der such a local coastal program and the Coastal Act.

The statute makes no mention of the Subdivis ion Map Act as one of the processes which can be avoided by agreement between the appli cant, the local government and the Coastal Commission, and we decline to extend the stat ute’s application by judicial fiat.

The mere fact that the Coastal Commission has acted on an application for a CDP in this case does not necessarily preclude an action to compel respondents to comply with the Subdivision Map Act as well. Accordingly, the third cause of action and that part of the sixth cause of action seeking equitable/in junctive relief for viol ating the Subdivision Map Act are not moot. 3 We now turn to the question of whether or not the trial court correctly sustained respondents’ demu rrers to these causes of action.

3 We recognize that the sixth cause of ac tion also seeks equitable/injunctive relief relating to respondents’ fa ilure to obtain a CDP. Du e to the Coastal Commission’s approval of the CDP, that part of the sixth ca use of action is also moot. We are confident the parties and the trial court will be able to determine how to best clean up the pleadings following remand.13 B. Analysis 1. Ripeness As discussed above, the trial court su stained respondents’ demurrers on the grounds that the various causes of action set fort h therein were not ripe. As to the alleged

violations of the Subdivision Ma p Act, the trial court indicated those claims were not ripe until CDLC sought to divi de the Property. “The ripeness requirement, a branch of the doctrine of justic iability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. It is in part de signed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to ob tain general guidance,

rather than to resolv e specific legal disputes. However, the ripeness doctrine is primarily bottomed on the recognition that judicial deci sionmaking is best conducted in the context

of an actual set of facts so that the issues will be framed with su fficient definiteness to

enable the court to make a decree fina lly disposing of the controversy.” ( Pacific Legal Foundation v. Califo rnia Coastal Com. (1982) 33 Cal.3d 158, 170 .) To be ripe, “ ‘[t]he controversy must be definite and concrete, to uching the legal relations of parties having adverse legal interests. [Citation.] It must be a real and substan tial controversy admitting of specific relief through a decree of a conclu sive character, as distinguished from an opinion advising what the la w would be upon a hypothetical state of facts.’ ” ( Id . at pp. 170-171, italics added, quoting Aetna Life Ins. Co. v. Haworth (1937) 300 U.S. 227, 240- 241.) 2. The Subdivision Map Act “The Subdivision Map Act is ‘the prim ary regulatory control’ governing the subdivision of real proper ty in California.” ( Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 996.) A subdivis ion is defined as “the divisi on, by any subdivider, of any unit or units of improved or unimproved land , or any portion thereof, shown on the latest14 equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing, whether immediate or fu ture.” (Gov. Code, § 66424.) With respect to enforcement, “[any] person . . . may file a suit . . . to rest rain or enjoin any attempted or proposed subdivision or sale, lease, or financing in viola tion of this division or local ordinance enacted pursuant thereto.” ( Id . § 66499.33.) 3. Analysis In their third cause of action, appellants allege that CDLC and TPL have proposed to divide and transfer all or a portion of the Property without obtaining approval under the Subdivision Map Act or the County’s subdi vision ordinance and that the County has refused to require CDLC and TPL to comply w ith those statutes. In the sixth cause of action, appellants allege they are entitled to equitable/injunctive relief to enjoin the proposed division of the Pr operty unless and until respo ndents comply with the requirements of both the Subdivision Map Act and the County’s subdivision ordinance. Reviewing these allegations and, as we must, assuming them to be true, we find that the trial court erred in determining that the third and sixth causes of action, alleging a

violation of the Subdivision Map Act and seeking equitabl e/injunctive relief to remedy that violation, were not ripe for adjudicatio n. Appellants alleged that CDLC and TPL had proposed to subdivide and tran sfer some or all of the Property to BLM, among other entities, but that the County had failed to re quire CDLC and TPL to seek approval for

that subdivision and transfer pursuant to the Subdivision Map Act. It is not clear how these allegations fail to present issues “frame d with sufficient defin iteness to enable the court to make a decree finally di sposing of the controversy.” ( Pacific Legal Foundation v. California Coastal Commission , supra , 33 Cal.3d at p. 170.) The Subdivision Map Act expressly authorizes an action “to restra in or enjoin any attempted or proposed

subdivision” and since CDLC and TPL are al leged to have proposed subdividing the Property without complying w ith the Subdivision Map Act, appellants’ claims state a judiciable controversy.15 III. D ISPOSITION The judgment is reversed. The trial court is directed to vacate its order sustaining

the demurrers to the verified first amended petition and comp laint and enter a new order: (1) sustaining the demurrers to th e first, second, fourth and fi fth causes of action as moot; and (2) overruling the demurrers to th e third and sixth ca uses of action. Appellants shall recover their costs on appeal.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Mihara, J.