County of Ventura v. City of Moorpark ( 2018 )

Filed 6/12/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
COUNTY OF VENTURA et al., 2d Civil No. B282466
(Super. Ct. No.
Plaintiffs and Appellants, VENCI00479937)
(Santa Barbara County)
v.
CITY OF MOORPARK,
Defendant and Appellant;
BROAD BEACH GEOLOGIC
HAZARD ABATEMENT
DISTRICT,
Defendant and Respondent.
The purpose of the California Environmental Quality
Act (CEQA) is to ensure “[t]he maintenance of a quality
environment for the people of this state now and in the future.”
(Pub. Resources Code,1 § 21000, subd. (a).) But the scope of
CEQA is not unlimited. (Sunset Sky Ranch Pilots Assn. v. County
1 All
further unlabeled statutory references are to the
Public Resources Code.
of Sacramento (2009) 47 Cal.4th 902, 907 (Sunset Sky).) CEQA
applies only to activities that meet the definition of a “project”
under the statute. (Ibid.) And certain projects are statutorily
exempt from environmental review. (Ibid.) Thus, “[a]lthough we
construe CEQA broadly ‘“to afford the fullest possible protection
to the environment within the reasonable scope of the statutory
language,”’ we do not balance the policies served by the statutory
exemptions against the goal of environmental protection.” (Ibid.)
This case requires us to consider whether the broad
definition of “project” that mandates more extensive CEQA
review also applies to statutory exemptions. It additionally
presents questions of state law preemption, the limits of a city’s
contractual authority, and the abdication of a government
entity’s police power.
The County of Ventura and City of Fillmore
(collectively, Appellants) appeal from the judgment denying their
petition for writ of mandate and request for injunctive relief, and
denying, in part, their request for declaratory relief. Appellants
contend the trial court erred when it determined that a beach
restoration project undertaken by Broad Beach Geologic Hazard
Abatement District (BBGHAD) is exempt from CEQA review.
They also contend a settlement agreement between BBGHAD
and the City of Moorpark (collectively, Respondents) that was
incorporated into the project: (1) is preempted by state law, (2)
constitutes an illegal attempt by Moorpark to regulate traffic
outside city limits, and (3) represents an abdication of BBGHAD’s
police power. In its cross-appeal, Moorpark challenges the court’s
finding that portions of the agreement are void.
We conclude that the beach restoration project,
including its incorporation of Respondents’ settlement
2
agreement, is a single “project” that is statutorily exempt from
CEQA review. The traffic restrictions in the agreement are not
preempted by state law, nor do they constitute extraterritorial
regulations. Instead, they represent a valid exercise of
Moorpark’s contracting authority. But because BBGHAD
abdicated its police power in portions of the agreement, we
conclude those provisions are void or subject to future
modification. We reverse the judgment in part, affirm in part,
and remand.
FACTUAL AND PROCEDURAL HISTORY
The state formed BBGHAD to restore a 46-acre
stretch of Broad Beach in the City of Malibu. The beach
restoration project requires 300,000 cubic yards of sand initially,
with four subsequent deposits of equal size to be made at five-
year intervals. Periodic supplemental deposits of up to 75,000
cubic yards each may be made on an as-needed basis. The project
will continue no more than 20 years, unless BBGHAD and
applicable permitting agencies approve an extension.
Each of the five major deposits will generate 44,000
one-way truck trips over the course of three to five months.
BBGHAD will obtain sand for the project primarily from the
Grimes Rock and CEMEX quarries, both located adjacent to
State Highway 23 between Fillmore and Moorpark. It may also
obtain a limited amount of sand from the P.W. Gillibrand quarry.
During the project approval process, Moorpark
officials expressed concern that hauling sand through or adjacent
to their city would negatively impact residents. Respondents
held discussions to address Moorpark’s concerns, which
culminated in a settlement agreement. Provisions of the
agreement relevant to this appeal include:
3
Section 2: “Trucks used for sand hauling in connection with the
Project are prohibited from using Walnut Canyon Road, Grimes
Canyon Road south of Broadway Road[,] or any other highway,
road[,] or street in or immediately adjacent to the City of
Moorpark, except in cases of ‘emergency,’ as defined in Section 5.”
Section 3: “All trucks used for sand hauling in connection with
the Project shall not be staged or parked in [Moorpark] or
immediately adjacent to [Moorpark], at anytime [sic] for the
duration of the Project.”
Section 4: “All sand hauling trucks for the Project shall use
Grimes Canyon Road (State Route 23) to State Highway 126
through Fillmore as the haul route from the Grimes Rock quarry
and/or the CEMEX quarry to the Project site[,] and the same
route from the Project site to the [quarries].”
Section 5: “An ‘emergency’ exists, for purposes of Sections 2 and
6, only when a first responder . . . determines all lanes on State
Highway 126 west of State Highway 23 or State Highway 23
north of the quarry are closed to truck traffic. An emergency
ceases to exist when a first responder determines that at least
one lane becomes available to truck traffic on [the] portions of
State Highway 126 and State Highway 23 referenced above.”
Section 7: “The haul route prohibitions shall apply to the
BBGHAD’s use of the Grimes Rock Quarry and CEMEX Quarry
throughout the duration of the Project. The BBGHAD shall
provide [Moorpark] notice of the commencement and completion
of each of the sand deposition events for the Project.”
4
Section 8: “The BBGHAD shall include the haul route
prohibitions in any agreements entered into between [it], the
quarries, and any contracted haulers[,] and require[] contracted
haulers to include such terms in their agreements with their
subcontracted haulers involved in the Project . . . .”
Section 26: “This Agreement may be amended or modified only
by the mutual agreement of the Parties and only when all Parties
memorialize in writing their consent to amend or modify.”
The Coastal Commission approved a coastal
development permit for the beach restoration project, including
its incorporation of Respondents’ settlement agreement, in
October 2015. The State Lands Commission approved a lease for
the project the following year.
Appellants challenged the project in a petition for
writ of mandate and request for injunctive and declaratory relief.
The trial court found the project statutorily exempt from CEQA.
It also determined that the settlement agreement is neither
preempted by the Vehicle Code nor an improper attempt by
Moorpark to regulate traffic outside city limits. But the court did
find that BBGHAD improperly contracted away to Moorpark its
police power in portions of the agreement. It declared void the
first sentence of section 7, declared void all of section 26 to the
extent it prohibits BBGHAD from modifying haul routes in
response to changed circumstances, and found section 8 subject to
modification should hauling routes change in the future.
5
DISCUSSION
CEQA
Appellants contend the settlement agreement is
distinct from BBGHAD’s beach restoration activities, and is thus
a separate, nonexempt CEQA project. We disagree.
CEQA establishes a three-tier process to ensure that
public agencies inform their decisions with environmental
considerations. (Muzzy Ranch Co. v. Solano County Airport Land
Use Com. (2007) 41 Cal.4th 372, 379-380 (Muzzy Ranch).) An
agency must first determine whether an activity is a “project” for
purposes of CEQA. (Id. at p. 380.) If it is, the agency determines
whether an exemption applies. (Ibid.) If the project is exempt,
no further environmental review is required. (Ibid.) If the
project is not exempt and may cause significant environmental
effects, however, the agency must prepare an environmental
impact report (EIR). (Id. at p. 381.)
CEQA “projects” include activities undertaken by
public agencies that cause direct physical changes to the
environment. (§ 21065.) What constitutes a project is given a
broad interpretation. (RiverWatch v. Olivenhain Municipal
Water Dist. (2009) 170 Cal.App.4th 1186, 1203 (RiverWatch).) A
project refers to “the whole of an action” (Cal. Code Regs., tit. 14,
§ 15378, subd. (a)), not each individual component (Sierra Club v.
West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 698).
Thus, where two activities are “part of a coordinated endeavor”
(Tuolumne County Citizens for Responsible Growth, Inc. v. City of
Sonora (2007) 155 Cal.App.4th 1214, 1228 (Tuolumne CCRG)),
“among the ‘various steps which taken together obtain an
objective’” (id. at p. 1226), or otherwise “related to each other”
(Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42
6
Cal.App.3d 712, 726), they constitute a single project for purposes
of CEQA. It is only “where the second activity is independent of,
and not a contemplated future part of, the first activity, [that] the
two activities may be reviewed separately.” (Sierra Club, at p.
699.) Whether two activities are parts of a single project is a
question for our independent review. (Muzzy Ranch, supra, 41
Cal.4th at p. 382.)
The settlement agreement between Moorpark and
BBGHAD is part of the whole of the action of the beach
restoration project. The state formed BBGHAD to address beach
and sand dune erosion at Broad Beach. (See § 26525 [purposes of
a geologic hazard abatement district].) BBGHAD’s mandate is to
make “improvements” to the beach that address “geologic
hazards,” including beach and dune erosion. (See § 26580
[improvements a district may undertake].) These improvements
require depositing more than 1.5 million cubic yards of sand at
the beach over a 20-year period. The agreement that requires
haulers to drive their payloads north from the quarries, through
Fillmore, and west to Broad Beach is incidental to BBGHAD’s
beach restoration activities, and therefore also qualifies as an
improvement undertaken by BBGHAD. (§ 26505 [“improvement”
includes all activities “necessary or incidental to” abating “a
geologic hazard”]; see also § 26574, subd. (d) [authorizing
BBGHAD to “[e]xercise all powers necessary or incidental to
carry out” the restoration project].) It is one piece of a single,
coordinated endeavor to address erosion at Broad Beach, and is
thus part of the whole of the action. (RiverWatch, supra, 170
Cal.App.4th at p. 1204.)
Applying the definition of “separate projects” set
forth in Banning Ranch Conservancy v. City of Newport Beach
7
(2012) 211 Cal.App.4th 1209 does not change our conclusion.
Banning Ranch defined “separate projects” as those that “have
different proponents, serve different purposes, or can be
implemented independently.” (Id. at pp. 1223-1224.) But under
this definition, the beach restoration and settlement agreement
are parts of a single project.
First, both Respondents are proponents of the
settlement agreement: Moorpark avoids negative impacts from
trucks hauling sand through the city, while BBGHAD is released
from any claims related to the project. Second, the agreement
and restoration activities serve a single purpose: to abate a
geologic hazard. Third, even if the beach restoration could be
completed without the agreement, the two became inextricably
linked when the agreement was incorporated into the coastal
development permit. “At that point in time, the independent
existence of the two actions ceased for purposes of CEQA and the
[agreement] became ‘a contemplated future part of’ completing
the [restoration project].” (Tuolumne CCRG, supra, 155
Cal.App.4th at pp. 1230-1231.) The agreement is not a separate
project under Banning Ranch.
It is also exempt from CEQA. (Cf. Defend Our
Waterfront v. State Lands Com. (2015) 240 Cal.App.4th 570, 587
[scope of a statutory exemption reviewed de novo].) The
settlement agreement is an “improvement” under section 26505.
Improvements undertaken by a geologic hazard abatement
district are “specific actions necessary to prevent or mitigate an
emergency.” (§ 26601.) By statutory exemption, CEQA does not
apply to these actions. (§ 21080, subd. (b)(4).)
Appellants contend this is an absurd result since “the
Legislature intended [CEQA] to be interpreted in such manner as
8
to afford the fullest possible protection to the environment . . . .”
(Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d
247, 259, disapproved of on other grounds in Kowis v. Howard
(1992) 3 Cal.4th 888, 896-897.) But as our Supreme Court has
explained, it is not “necessarily correct . . . to assume that a
harmony . . . exist[s] between CEQA’s general purpose and the
purposes of each of its statutory exemptions.” (Napa Valley Wine
Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381,
superseded by statute on another ground as stated in § 21080.04,
subd. (b).) “The exemptions reflect a variety of policy goals” that
“promote[] an interest important enough to justify forgoing the
benefits of environmental review.” (Id. at pp. 381-382.) Courts
thus “do not balance the policies served by the statutory
exemptions against the goal of environmental protection.”
(Sunset Sky, supra, 47 Cal.4th at p. 907.) “‘[T]he self-evident
purpose of the [emergency] exemption is to provide an escape
from the EIR requirement despite a project’s clear, significant
impact.’ [Citation.]” (CREED-21 v. City of San Diego (2015) 234
Cal.App.4th 488, 506.)
We therefore find no absurdity in holding that the
broad definition of “project” employed in cases that have
mandated expanded environmental review also applies in cases
where, as here, using that definition will result in the broader
operation of a statutory exemption. The entirety of BBGHAD’s
beach restoration project, including its settlement agreement
with Moorpark, is exempt from CEQA.
Preemption
Appellants next contend the settlement agreement is
void because Vehicle Code section 21 preempts Moorpark’s ability
to control project traffic. We again disagree.
9
A city may enact and enforce, within its limits, only
those ordinances and regulations that do not conflict with state
law. (Cal. Const., art. XI, § 7.) If a local ordinance or resolution
conflicts with state law, it is void. (Sherwin-Williams Co. v. City
of Los Angeles (1993) 4 Cal.4th 893, 897.) A conflict exists if an
ordinance or resolution “‘“‘duplicates, contradicts, or enters an
area fully occupied by general law, either expressly or by
legislative implication.’”’ [Citations.]” (Ibid.)
State law preempts local traffic control ordinances
and resolutions. Vehicle Code section 21, subdivision (a)
provides: “[A] local authority shall not enact or enforce any
ordinance or resolution on the matters covered by this code,
including ordinances or resolutions that establish regulations or
procedures for, or assess a fine, penalty, assessment, or fee for a
violation of, matters covered by this code, unless expressly
authorized by this code.” Whether this statute preempts the
traffic restrictions set forth in the settlement agreement presents
a question of statutory construction for our independent review.
(Save the Sunset Strip Coalition v. City of West Hollywood (2001)
87 Cal.App.4th 1172, 1179.)
Vehicle Code section 21 is inapplicable here. The
settlement agreement is a contract, not an ordinance or
resolution. (Weddington Productions, Inc. v. Flick (1998) 60
Cal.App.4th 793, 810-811.) Vehicle Code section 21 does not
apply to contracts. (Coldwell Banker Residential Brokerage Co. v.
Superior Court (2004) 117 Cal.App.4th 158, 165 [where statute
enumerates what is affected by its provisions, others are
impliedly excluded].) Thus, even though the state has occupied
the field of traffic control, Moorpark can enforce the restrictions
enumerated in the agreement as valid contractual terms. (See 42
10
Ops.Cal.Atty.Gen. 169, 172 (1963), cited with approval by Alioto’s
Fish Co. v. Human Rights Com. of San Francisco (1981) 120
Cal.App.3d 594, 605-606 (Alioto’s Fish).)
Nor does the settlement agreement have the effect of
an ordinance or resolution that conflicts with the purpose of the
Vehicle Code. The purpose of Vehicle Code section 21 is to ensure
uniformity of traffic rules throughout the state. (Veh. Code, § 21,
subd. (a).) The haul route provisions in the agreement do not
impede that goal. They do not close roads to traffic in general.
They do not close roads to traffic going to or from the quarries.
They do not even close roads to trucks picking up or hauling
sand, provided those haulers are not connected to the beach
restoration project. The agreement merely dictates the routes
BBGHAD’s contractors and subcontractors must use when
working on the project.
None of the cases on which Appellants rely suggests
that Vehicle Code section 21 is triggered here. In each case, a
local government or homeowners’ association enacted an
ordinance or installed physical barriers to block traffic. (Rumford
v. City of Berkeley (1982) 31 Cal.3d 545, 549; City of Hawaiian
Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100, 1105;
Citizens Against Gated Enclaves v. Whitley Heights Civic Assn.
(1994) 23 Cal.App.4th 812, 816; City of Poway v. City of San
Diego (1991) 229 Cal.App.3d 847, 854-855; City of Lafayette v.
County of Contra Costa (1979) 91 Cal.App.3d 749, 752.) The
settlement agreement, in contrast, involves no ordinance,
resolution, or physical barrier that closes roads to traffic. There
is no preemption problem.2
2 Based on our conclusion, we deny as moot Moorpark’s
October 26, 2017, motion to consider postjudgment evidence.
11
Extraterritorial regulation
Appellants contend the settlement agreement is an
unlawful attempt by Moorpark to exercise its regulatory powers
outside city limits under the guise of its contractual authority.
We are not persuaded.
Subject to limited exceptions not applicable here, a
city has “no extraterritorial powers of regulation,” and “may not
exercise . . . governmental functions beyond its corporate
boundaries.” (City of Oakland v. Brock (1937) 8 Cal.2d 639, 641.)
But the prohibition against extraterritorial regulation “applies
only where the local authority exercises its regulatory or police
power as opposed to its contracting power.” (Burns Internat.
Security Services Corp. v. County of Los Angeles (2004) 123
Cal.App.4th 162, 167 (Burns).) A city has authority to enter into
contracts that enable it to carry out its necessary functions,
including those implied by necessity. (Morrison Homes Corp. v.
City of Pleasanton (1976) 58 Cal.App.3d 724, 734 (Morrison
Homes).) We independently review whether Moorpark has
unlawfully attempted to exercise its regulatory power outside city
limits. (Halaco Engineering Co. v. South Central Coast Regional
Com. (1986) 42 Cal.3d 52, 74.)
There is no extraterritorial regulation problem here.
Trucks’ use of roads can create a public nuisance. (City & Co. of
S.F. v. Safeway Stores, Inc. (1957) 150 Cal.App.2d 327, 333.)
Moorpark has attempted to abate that nuisance within city limits
by signing a settlement agreement that designates permissible
sand hauling routes for BBGHAD’s contractors. (Morrison
Homes, supra, 58 Cal.App.3d at p. 734.) Had BBGHAD found the
agreement’s route provisions overly burdensome, it could have
refused to sign the agreement. (Alioto’s Fish, supra, 120
12
Cal.App.3d at p. 605.) Moreover, the remedies specified in
sections 13 and 14 of the agreement—liquidated damages,
specific performance, and injunctive relief—are contractual in
nature, and inure primarily to Moorpark’s benefit. (Ibid.) And
they have effect only within Moorpark city limits. (Burns, supra,
123 Cal.App.4th at p. 172.) The agreement therefore represents
a valid exercise of Moorpark’s contracting power, not its
regulatory power. (Amaral v. Cintas Corp. No. 2 (2008) 163
Cal.App.4th 1157, 1177.)
Abdication of police power
Appellants contend BBGHAD abdicated its police
power when it granted Moorpark the power to dictate the sand
hauling routes BBGHAD’s contractors must use during the life of
the project, which renders the settlement agreement void in its
entirety. In its cross-appeal, Moorpark counters that there was
no abdication of BBGHAD’s police power, thus the trial court
erred when it declared portions of the agreement void. We
conclude that portions of the agreement are void or subject to
modification.
BBGHAD has the authority to “enter into contracts
and agreements . . . in furtherance of the” beach restoration
project. (§ 26579.) And as a creature of state law, BBGHAD may
exercise a portion of the state’s police power. (Rodeo Sanitary
Dist. v. Board of Supervisors (1999) 71 Cal.App.4th 1443, 1447;
see § 26570.) But BBGHAD may not contract away the right to
exercise its police power in the future. (Avco Community
Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d
785, 800, superseded by statute on another ground as stated in
Cotta v. City and County of San Francisco (2007) 157 Cal.App.4th
1550, 1559, fn. 5.)
13
The determination of hauling routes is a police
power.3 (McCammon v. City of Redwood City (1957) 149
Cal.App.2d 421, 427.) Therefore, if the haul route provisions in
the settlement agreement “amount[] to [BBGHAD’s] ‘surrender,’
‘abnegation,’ ‘divestment,’ ‘abridging,’ or ‘bargaining away’ of its
control of a police power,” those provisions are void. (County
Mobilehome Positive Action Com., Inc. v. County of San Diego
(1998) 62 Cal.App.4th 727, 738 (COMPAC).) Whether BBGHAD
contracted away its police power when it granted Moorpark
control over potential changes to hauling routes is a question for
our independent review. (Mike Moore’s 24-Hour Towing v. City of
San Diego (1996) 45 Cal.App.4th 1294, 1303.)
Sections of the settlement agreement are void
because they surrender BBGHAD’s discretion to alter haul routes
in the future. The first sentence of section 7 states that “[t]he
haul route prohibitions shall apply . . . throughout the duration of
the [p]roject.” The last clause of section 3 prohibits those hauling
sand in connection with the beach restoration project from
staging or parking trucks in or adjacent to Moorpark “at anytime
[sic] for the duration of the [p]roject.” These terms restrict
BBGHAD’s ability to respond to any change in circumstances
during the 20-plus years of the project. A government entity may
not surrender, for a potentially indefinite period of time, its
3 Even if it were not, the same analysis would apply:
Among BBGHAD’s statutory powers is making improvements to
lands. (§ 26580.) The hauling of sand qualifies as an
“improvement.” (§§ 26505, 26574, subd. (d).) We analyze
BBGHAD’s alleged abdication of that statutory power identically
to the alleged abdication of a police power. (See Trimont Land
Co. v. Truckee Sanitary Dist. (1983) 145 Cal.App.3d 330, 349-351
(Trimont Land).)
14
authority to exercise discretion on matters within its police
power. (COMPAC, supra, 62 Cal.App.4th at pp. 739-741.) The
terms are void.
Section 26 provides that the agreement “may be
amended or modified only by the mutual agreement of the
[p]arties and only when all [p]arties memorialize in writing their
consent to amend or modify.” This section gives Moorpark veto
power over BBGHAD’s authority to alter the haul routes to
reflect changed circumstances. But the Public Resources Code
vests those powers in BBGHAD. (See § 26580.) Thus, to the
extent section 26 prohibits BBGHAD from approving or
disapproving modifications to haul routes in light of changed
circumstances, it is void. (Trimont Land, supra, 145 Cal.App.3d
at p. 351.) It follows that the prohibited haul routes identified in
the first sentence of section 2 and the first sentence of section 8,
the prohibited staging and parking areas identified in section 3,
the permitted haul routes identified in section 4, and the
permitted emergency routes identified in the last sentence of
section 5 are void to the extent they prevent BBGHAD from
altering haul routes due to a future change in circumstances.
Respondents argue that the settlement agreement
allows BBGHAD to alter haul routes in response to changed
circumstances that may arise during the project’s 20-year
lifespan. They first assert that BBGHAD may acquire sand from
sources not identified in the agreement. But neither the State
Lands Commission nor the Coastal Commission approved
BBGHAD’s use of other sources of sand. And BBGHAD itself
determined, after an “exhaustive search,” that only three
quarries have sand suitable for the project. Two of those
quarries—CEMEX and Grimes Rock—are identified in the
15
agreement and subject to its restrictions. The third—P.W.
Gillibrand—cannot supply a sufficient quantity of sand to meet
project requirements.
Respondents also assert they retain the authority to
alter haul routes by invoking the emergency exception set forth
in section 5 if changed circumstances necessitate haul route
modifications. But section 5 provides that an emergency exists
only when a first responder determines that all lanes of State
Highway 23 north of the quarries or all lanes of State Highway
126 west of Fillmore are closed to trucks, and ceases when at
least one lane on both highways is open to truck traffic. By its
very terms, the exception is temporary, and would only apply
under extremely limited circumstances.
There are many scenarios in which BBGHAD cannot
invoke the emergency exception. For example, BBGHAD cannot
invoke the exception if traffic congestion increases along the
designated haul routes or if there is a dramatic slowdown or
partial road closure. BBGHAD cannot invoke the exception if
increased costs or logistical issues at the quarries or project site
require the use of a different route. And BBGHAD cannot invoke
the exception should its board of directors or outside authorities
decide that the additional pollution generated from the mandated
use of a more circuitous route is unacceptable. In short, the
settlement agreement, as written, does not allow for
modifications to respond to changes in circumstances that may
arise during the project’s lifespan.
Respondents cite cases in which government entities
did not improperly contract away police power because they
preserved discretion to modify the applicable contract or
ordinance in light of changed circumstances. (See 108 Holdings,
16
Ltd. v. City of Rohnert Park (2006) 136 Cal.App.4th 186, 195-197;
Santa Margarita Area Residents Together v. San Luis Obispo
County Bd. of Supervisors (2000) 84 Cal.App.4th 221, 233
(SMART); Professional Engineers v. Department of
Transportation (1993) 13 Cal.App.4th 585, 591; Delucchi v.
County of Santa Cruz (1986) 179 Cal.App.3d 814, 823; Morrison
Homes, supra, 58 Cal.App.3d at pp. 734-735.) But the sections of
the settlement agreement we have identified do not preserve such
discretion. Rather, they preclude BBGHAD from altering haul
routes in response to changed conditions and, in effect, give
Moorpark veto power over BBGHAD’s proposed changes.
Moorpark argues the entire agreement is valid
because BBGHAD had statutory authority to enter it. But
simply because BBGHAD had the authority to execute the
settlement agreement does not render all of its terms valid (Civ.
Code, § 1550 [capacity to contract and object of contract are
different elements]). By statute, BBGHAD’s police power
includes the designation of sand hauling routes. (§ 26580.) It
must therefore retain authority to modify those routes in
response to changed circumstances.
Finally, Moorpark argues the settlement agreement
constitutes a valid exercise of BBGHAD’s authority because
project operations are limited to a total of 15 to 25 months over
the span of 20 years. We disagree with Moorpark’s
characterization of hauling operations. If approved by BBGHAD
and applicable permitting agencies, the project may last longer
than 20 years, rendering the agreement’s duration indefinite.
And while the five main sand deposits may occur over a period of
15 to 25 months, the project may also entail an unspecified—and
potentially unlimited—number of supplemental deposits.
17
More significantly, Moorpark did not raise this
argument in the proceedings below. As a theory of defense, an
argument may not be asserted for the first time on appeal.
(Bardis v. Oates (2004) 119 Cal.App.4th 1, 13, fn. 6.) The
argument is forfeited.
But even if Moorpark had preserved its argument, it
would not save the settlement agreement. Moorpark relies on
our observation in SMART, supra, 84 Cal.App.4th at page 233,
that the zoning freeze at issue there lasted only five years. But
our holding in SMART turned on the county’s retention of
discretion under its agreement with the developer, not the
duration of the freeze. (Ibid.) Thus, contrary to Moorpark’s
contention, SMART does not limit our analysis to the specified
duration of actual hauling operations.
Nor do the additional cases it cites. All of these cases
turn on the government’s abdication of power, not the duration of
that abdication. (See Summit Media LLC v. City of Los Angeles
(2012) 211 Cal.App.4th 921, 937; Trancas Property Owners Assn.
v. City of Malibu (2006) 138 Cal.App.4th 172, 181-183; COMPAC,
supra, 62 Cal.App.4th at pp. 738-741; City of Glendale v. Superior
Court (1993) 18 Cal.App.4th 1768, 1778-1780; Trimont Land,
supra, 145 Cal.App.3d at pp. 350-351; Carty v. City of Ojai (1978)
77 Cal.App.3d 329, 342-343.) It is BBGHAD’s surrender of its
discretion to approve or disapprove hauling routes, not just the
duration of the agreement’s operation, that runs afoul of the
principle that a government entity may not contract away its
police power.
Severability
Because we have determined that portions of the
settlement agreement are invalid, we must determine whether
18
the agreement is void in part or in its entirety. Our goal in
construing the agreement is to give effect to the parties’ mutual
intentions (Minkler v. Safeco Ins. Co. of America (2010) 49
Cal.4th 315, 321), keeping in mind our responsibility to interpret
the agreement to “make it lawful, operative, definite, reasonable,
and capable of being carried into effect” (Civ. Code, § 1643).
Where an agreement has several objects, some of
which are lawful and others of which are unlawful, it is “void as
to the latter and valid as to the rest.” (Civ. Code, § 1599.) We
look to the various purposes of the agreement to determine if it is
severable. (Armendariz v. Foundation Health Psychcare Services,
Inc. (2000) 24 Cal.4th 83, 124.) If the “central purpose of the
[agreement] is tainted with illegality,” then the agreement as a
whole cannot be enforced. (Ibid.) But if the illegality is
“collateral to the main purpose of” the agreement, and “the illegal
provision can be extirpated . . . by means of severance or
restriction,” then severance and restriction are appropriate.
(Ibid.) Our overarching inquiry is whether the interests of justice
would be furthered by severance. (Ibid.)
They would. The settlement agreement has at least
two purposes: (1) the determination of permissible and
prohibited sand hauling routes, and (2) the duration of and
limited discretion to modify the route restrictions. Only the
latter of these purposes is unlawful. Because that can be
extirpated from the agreement, the former may remain in force.
(Trimont Land, supra, 145 Cal.App.3d at p. 355.)
Severance also gives effect to Respondents’ expressed
intentions. Section 23 of the agreement provides: “Should any
provision of this Agreement be declared or determined by a court
of competent jurisdiction to be illegal, invalid, or unenforceable,
19
the invalidity, illegality, or unenforceability shall not affect any
other provision of the Agreement and the remainder of the
Agreement shall be construed as if the invalid, illegal, or
unenforceable provision had never been included.” This clause
“evidence[s] [Respondents’] intent that, to the extent possible, the
valid provisions of the [agreement] be given effect, even if some
provision is found to be invalid or unlawful.” (Baeza v. Superior
Court (2011) 201 Cal.App.4th 1214, 1230.) The agreement is not
void in its entirety.
20
DISPOSITION
We reverse the portion of the judgment that grants
Appellants’ request for declaratory relief, and remand the matter
to the trial court with directions to vacate the declaratory relief
previously granted and to enter new and different declaratory
relief that: (1) declares void the last clause of section 3 and the
first sentence of section 7 of the settlement agreement; (2)
declares void section 26 to the extent it prohibits BBGHAD from
approving or disapproving modifications to haul routes in light of
a future change in circumstances; and (3) requires the haul
routes identified in the first sentence of section 2 and the first
sentence of section 8, the prohibited staging and parking areas
identified in section 3, the permitted haul routes identified in
section 4, and the permitted emergency routes identified in the
last sentence of section 5 to be subject to modification should
BBGHAD need to alter haul routes in the future in response to
changed circumstances. In all other respects, the judgment is
affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(3).)
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
21
Thomas Pearce Anderle, Judge
Superior Court County of Santa Barbara
______________________________
Leroy Smith, County Counsel, Jeffrey E. Barnes,
Assistant County Counsel, for Plaintiff and Appellant County of
Ventura.
Aleshire & Wynder and June Ailin, for Plaintiff and
Appellant City of Fillmore.
Kevin G. Ennis, City Attorney; Richards, Watson &
Gershon, T. Peter Pierce and Nicholas R. Ghirelli, for Defendant
and Appellant City of Moorpark.
Elkins Kalt Weintraub Reuben Gartside, John M.
Bowman and Ernest J. Guadiana, for Defendant and Respondent
Broad Beach Geologic Hazard Abatement District.