Filed 11/21/13 Save Our Heritage Org. v. City of San Diego CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAVE OUR HERITAGE D062026

ORGANISATION,

(Super. Ct. No. 37-2011-00095579- Plaintiff and Respondent, CU-WM-CTL)

v.

CITY OF SAN DIEGO et al.,

Defendants and Appellants;

PLAZA DE PANAMA COMMITTEE,

Real Party in Interest and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,

Judith F. Hayes, Judge. Appeal dismissed.

Jan I. Goldsmith, City Attorney, and Donald R. Worley, Assistant City Attorney,

for Defendants and Appellants.

Seltzer Caplan McMahon Vitek and G. Scott Williams for Real Party in Interest

and Appellant. Brandt-Hawley Law Group and Susan L. Brandt-Hawley for Plaintiff and

Respondent.

Appellants City of San Diego (City) and Plaza de Panama Committee (Committee;

together Appellants) entered into a Memorandum of Understanding (MOU) that

addressed project terms and details for the Plaza de Panama Circulation and Parking

Structure Project (the Project) proposed for Balboa Park. Save Our Heritage

Organisation (SOHO) filed a petition for writ of mandate challenging the MOU. The

trial court granted the petition, finding that to avoid an unlawful precommitment to the

Project, the San Diego City Council (City Council) must set aside and not reconsider

approval of the MOU until an environmental impact report (EIR) was certified.

Appellants claim the trial court erred in finding the MOU constituted a precommitment to

the Project in violation of the California Environmental Quality Act (CEQA). As we

explain below, the appeal is dismissed as moot.

FACTUAL AND PROCEDURAL BACKGROUND

Balboa Park is a 1200-acre urban park owned by the City. Balboa Park's central

core was declared a National Historic Landmark and a National Historic Landmark

District in 1977 and is listed in the National Register of Historic Places. In 1989, the

Balboa Park Master Plan was adopted following a comprehensive environmental process.

The Balboa Park Master Plan called for removal of parking in Balboa Park's central Plaza

de Panama and changing the Plaza de Panama to pedestrian use.

2 In 2010, the Committee was formed by Dr. Irwin Jacobs to raise funds and

implement the Project. The Committee committed to raise $25 million of $40 million in

projected costs to remove parking from the Plaza de Panama and other areas in Balboa

Park and to construct a new paid parking garage, roadways, and a bypass bridge, among

other things. SOHO and numerous other organizations raised concerns relating to the

Project's adverse impacts on historic integrity and public access to Balboa Park.

In 2011, the Committee presented the City with a proposed MOU that described

detailed project terms, parameters, and financing, while repeatedly reciting that final

project approval would only follow a full CEQA process to consider project alternatives.

The City Council's Committee on Rules, Open Government and Interdepartmental

Relations declined to recommend approval of the MOU to the City Council due to

concerns regarding the Project. The Committee then asked the full City Council to

consider the approval of the MOU at a public hearing. Following testimony, a City

Council majority voted to approve the MOU.

SOHO filed the instant petition alleging that the City Council violated CEQA by

improperly precommitting itself to the Project before certification of an EIR. The trial

court granted the petition and entered a judgment against the City, ruling that "[t]he City

Council . . . violated CEQA in July 2011 when it entered into a [MOU] with the . . .

Committee regarding the . . . Project without first certifying an adequate . . . [EIR]." The

court issued a peremptory writ of mandamus commanding the City to set aside the

approval of the MOU.

3 Before entry of judgment, the City published a draft EIR for the Project. The

parties then stipulated to stay the operation and effectiveness of the MOU "pending the

City's certification of the Project EIR, or approval of another environmental document

appropriate for a revised Project, and the City's approval of Project entitlements." The

parties further agreed that "[t]his stay of the operation and effectiveness of the MOU fully

cures the City's precommitment to the project, as alleged by SOHO and ruled by this

Court in its Order of January 19, 2012, so that the City's approval of the MOU in July

2011 and the circumstances surrounding that approval can no longer prejudice the City's

compliance with CEQA during the EIR review process and during the City's

consideration of Project entitlements."

In July 2012, the EIR was certified. Thereafter, the City approved the Project and

the Plaza de Panama Improvement Agreement that delineated terms for the funding,

design and construction of the Project. The City timely appealed from the judgment.

SOHO moved to dismiss the appeal as moot.

DISCUSSION

SOHO seeks to dismiss this appeal as moot on the ground no judiciable

controversy remains because the stipulated stay of the MOU allowed the Plaza de

Panama EIR process to proceed free from the unlawful precommitment. SOHO also

contends that the MOU has been superseded by the approval of the Project and the Plaza

de Panama Improvement Agreement entered into between the City and the Committee.

In its reply brief, the City disagrees with the reason for mootness argued by SOHO, but

concedes that the appeal is moot for other reasons. 2012-00102270-CU-TT-CTL, a subsequent action filed by SOHO challenging approval

of the Project, the trial court ruled that the approval violated a local City ordinance and

issued a writ of mandate setting aside the site development permit for the Project. The

City requests that we take judicial notice of this subsequent action and contends that

"[t]here does not appear to be any move to revive the project by addressing alternatives

under the City ordinance. Therefore, approval of the MOU, which was the goal of the

appeal, will not provide meaningful relief."

We grant the City's request for judicial notice of the San Diego superior court file

in the subsequent action. Our review of the file shows that the Committee timely

appealed the decision in the subsequent action. Thus, the Project is not dead.

Nonetheless, we agree with SOHO that subsequent events rendered any issue as to the

MOU moot.

This appeal seeks reversal of a peremptory writ of mandamus commanding the

City to set aside the approval of the MOU. The parties, however, agreed to stay the

operation of the MOU and agreed that this stay "fully cure[d] the City's precommitment

to the project, as alleged by SOHO and ruled by this Court." The agreement of the

parties, combined with the completion of the EIR process without the MOU in place, and

the subsequent entry of the Plaza de Panama Improvement Agreement between the City

and the Committee rendered the MOU irrelevant and moots this appeal. (Mercury

Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 77–78 [an appeal should be

5 dismissed as moot when an intervening event makes it impossible for the appellate court

to give appellant effective relief].)

Nonetheless, the City contends we should rule on the merits of its appeal because

it raises issues of public importance that are likely to arise again. Namely, the trial

court's ruling that the City violated CEQA because of the mayor's support of the Project,

if left standing, would have a chilling effect on mayoral advocacy of other projects a

mayor deems favorable to a city. It also argues the trial court's finding that the detailed

project description in the MOU violated CEQA is an issue that will recur if the City

enters into future public/private development with controversial features.

Accordingly, the issue presented is whether we should decide the appeal despite

its mootness. "In a proceeding that may otherwise be deemed moot we have discretion to

resolve an issue of continuing public interest that is likely to recur in other cases . . . ."

(Daly v. Superior Court (1977) 19 Cal.3d 132, 141.) As we shall explain, this case does

not meet the exception for an otherwise moot appeal.

CEQA "requires that public agencies conduct environmental review before they

commit themselves to a definite course of action with respect to any project which might

have a significant impact on the environment. Such a commitment may occur when an

agency makes an agreement with respect to a proposal that, as a practical matter, commits

the agency 'to the project as a whole or to any particular features, so as to effectively

preclude any alternatives or mitigation measures that CEQA would otherwise require to

be considered, including the alternative of not going forward with the project.'

[Citation.]" (City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55, 59.) Cal.4th 116 (Save Tara). In Save Tara, our high court addressed the question of when

does a development agreement conditioned upon CEQA compliance constitute

"approval" of a project that must be preceded by preparation of an EIR. It rejected any

"bright-line rule defining when an approval [of a project] occurs . . . ." (Id. at p. 138.)

Rather, the court considered a number of factors to determine that because the city had

already committed itself to the project, it was required to prepare and consider an EIR

before entering into the agreement. (Id. at pp. 140–143.) The Save Tara court noted that

our task is to "look not only to the terms of the agreement but to the surrounding

circumstances to determine whether, as a practical matter, the agency has committed

itself to the project as a whole or to any particular features, so as to effectively preclude

any alternatives or mitigation measures that CEQA would otherwise require to be

considered, including the alternative of not going forward with the project." (Id. at

p. 139.)

Accordingly, resolution of the merits of this appeal requires us to review the

unique facts of this case to determine whether the trial court correctly found that the

MOU constituted approval of the Project. Because resolution of the merits of this appeal

requires a fact specific inquiry, and Save Tara and its progeny set forth the legal

framework for determining whether a development agreement conditioned upon CEQA

compliance constitute "approval" of a project, we conclude this case does not meet the

exception to decide an otherwise moot appeal. Thus, we grant the motion to dismiss the

appeal. (See Zimmerman v. Drexel Burnham Lambert Inc. (1988) 205 Cal.App.3d 153,

7 162 [in appropriate circumstances, appellate court may dismiss appeal even though

motion to dismiss requires some review of record].)

DISPOSITION

The appeal is dismissed. Respondent is entitled to its costs on appeal.

MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

MCDONALD, J.

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