McMillan v. County of Siskiyou CA3 ( 2020 )

Filed 12/9/20 McMillan v. County of Siskiyou CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Siskiyou)
----
CLIFTON H. MCMILLAN III et al., C087960
Plaintiffs and Appellants, (Super. Ct. No.
SCCVPT1700250)
v.
COUNTY OF SISKIYOU,
Defendant and Respondent.
SUMMARY OF THE APPEAL
Appellants Butte Creek Minerals, Ltd. (BCM) and Clifton H. McMillan, BCM’s
owner, requested a hearing before the Siskiyou County Planning Commission
(Commission) to determine whether they have vested rights to surface mine on a 1,741-
acre property in Siskiyou County. The Commission determined appellants have no such
right. After an unsuccessful administrative appeal before the Siskiyou County Board of
Supervisors (Board), appellants challenged the determination in the superior court with a
petition for writ of mandate and declaratory relief action against the County of Siskiyou
(County). The trial court denied the petition, and awarded the County $14,655.17 in
costs, the bulk of which the County incurred to prepare the administrative record.
On appeal, appellants argue the County and superior court (1) did not apply the
“law of the case” as established in a nonpublished opinion McMillan v. County of
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Siskiyou, November 27, 2012, C067581 (McMillan I) when they applied a 1953
ordinance instead of a 1974 ordinance to determine if appellants have a vested right to
mine without a permit; (2) improperly interpreted the 1953 ordinance to require permits
to mine the subject property for gravel; (3) incorrectly concluded that evidence does not
show appellants’ predecessors diligently commenced mining the property before 1953;
(4) erred in finding the right to mine the property did not vest based on post-1953
conduct; (5) erred in determining that “Williamson” contracts entered between the
County and BCM’s predecessor did not create a vested right to mine the property for
gravel; and (6) erred in awarding record preparation costs to the County. In its response,
the County argues we should not hear this appeal because it is untimely. The County also
argues the doctrines of laches and estoppel bar appellants from raising their claims. We
find that this appeal was timely and, because appellants’ arguments lack merit, we affirm
the superior court’s judgment and ruling regarding costs.
FACTS AND PROCEDURAL HISTORY
A. History of Regulation of Surface Mining in the County
The earliest instance of efforts to regulate surface mining in the County that the
parties identified is Ordinance No. 181, which the County enacted in 1946. Neither party
takes the position that the 1946 ordinance applied to the property.
The next ordinance the County passed that the parties identify is Ordinance
No. 256, which the County passed in 1953. According to Ordinance No. 256, “the
establishment of any of the following shall not be permitted unless and until a use permit
shall first have been secured in each case. ¶ . . . ¶ 2. Commercial Excavation of natural
materials within 100 feet of a public road. ¶ . . . ¶ 10. Surface mining, involving heavy
power equipment.” Ordinance No. 256 applied to “all of the unincorporated area[s] of
the County.” The County passed an amendment to Ordinance No. 256 in 1957, which
carved out “Logging Operations” from commercial excavations within 100 feet of a
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public road that would not require a permit but retained all requirements with respect to
“[s]urface mining involving heavy power equipment.” In 1960, the County passed
additional amendments to Ordinance No. 256 without substantive impact on what would
trigger the permitting requirements for surface mining or commercial excavation.
The next instance of the County regulating surface mining that appears in the
record is Ordinance No. 623, which the County adopted in June 1974. Ordinance
No. 623 added Chapter 6, Title 10 to the Siskiyou County Code (SCC). Section 10-
6.1502 of the SCC as amended by Ordinance No. 623, required a “use permit” be
obtained before one could engage in the “mining of natural mineral resources together
with the necessary buildings and appurtenances incident thereto.”
In 1975, the California Legislature enacted the Surface Mining and Reclamation
Act (SMARA) (Pub. Resources Code, § 2770 et seq.). SMARA requires that every
surface mining operation have a permit, a reclamation plan, and financial assurances to
implement the planned reclamation. (Pub. Resources Code, § 2770, subd. (a).) Those
with a vested right to conduct surface mining prior to 1976 are exempt from the permit
requirement. (Pub. Resources Code, § 2776, subd. (a).) Regardless of vested status, all
operations conducted after January 1, 1976, require a reclamation plan. (Id., subd. (b).)
In response to SMARA, the Board adopted chapter 5 of Title 10 of the SCC
entitled “Surface Mining and Reclamation.” (SCC, § 10-5.101 et seq.) “The purpose of
this chapter is to implement and supplement” SMARA. (SCC, § 10-5.101, subd. (a).)
B. Ownership and Use History of the Property Prior to McMillan’s Purchase
The property at issue is known as the Timberhitch Quarry or Timberhitch Pit and
is located in the Butte Valley in eastern Siskiyou County.
Little is known about who owned the property prior to 1961, at which time,
records demonstrate Ralph and Anabel Lutz owned some of the various parcels that make
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up the property. Records identify the Lutzs as the owners of the additional parcels that
complete the property by 1963.
In the vesting determination proceedings before the County, McMillan submitted
an aerial photograph of the property from 1944 that he claimed showed there were areas
of the property where mining occurred by the time the photograph was taken. In his
written declaration, McMillan wrote, with respect to the images, he “was told by Ralph
Lutz, the previous owner who [also] worked at [a local mill] as a young man, these
excavations were made by horse-drawn scrapers digging and gathering alluvial gravel
which was transported up the [n]orth face of Mt Hebron on the narrow gauge railroad that
was part of the Jerome logging and sawmill operation in the late 1890s and early 1900s.”
McMillan also indicated that sometime after World War II Lutz acquired “a
military surplus RD 7 cable bulldozer. With this machine he developed the cinder pit
farther south” and “constructed a ramp and delivery chute that would take the bulldozed
cinders and direct them into his 4 1/2 yard international dump truck. He [then] supplied
those cinders to the U.S. Forest Service when they were developing” a base for “vehicle
storage and maintenance yards in the early [19]50s. He also said [that] he sold cinders
for” the construction of an additional parking area, a post office, a store, and a sawmill.
According to McMillan, Lutz, “acquired the property from the Forest Service for
expansion of his ranch by a trade.”
C. Ownership and Use History of the Property Following McMillan’s Purchase
McMillan acquired the property in 1967. He established a corporation,
Timberhitch, Inc., and transferred the property to it. When McMillan purchased the
property in 1967, his “objective was to improve the productivity of the property . . . and
exploit its natural resources which were potential viable crop lands, alluvial deposits and
timber stands.” Timberhitch mined the property for sand, gravel, and rock.
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In 1969, the County adopted Resolution No. 404, which established agricultural
preserves as contemplated by the California Land Preservation Act of 1965 (Williamson
Act, Gov. Code, § 52100 et seq.), and entered into various “Williamson Contracts” with
local landowners, including Timberhitch, Inc. The Williamson Act authorizes contracts
between local government and local landowners to preserve agricultural land by
restricting its use to agriculture or compatible uses in exchange for reduced property
taxes. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 791.)
According to Resolution No. 404, the land within the established agricultural
preserves was to be used “for the purpose of producing agricultural commodities for
commercial purposes and compatible uses,” which would include “[n]atural resource
development.” According to the resolution, use of property in agricultural preserves for
some specific nonagricultural uses--e.g., for churches and schools --would be “[s]ubject
to obtaining a use permit, where a public hearing thereon has been held.” Similarly, the
1969 contract indicates that during the term of agreement, the “land shall not be used for
any purpose, other than the production of agricultural commodities for commercial
purposes and compatible uses as listed in the resolution establishing the preserve within
which the land is located.”
At the hearing before the Board, McMillan presented aerial photos which he
claims show areas of the property that were mined prior to 1974. The alleged mining
activities include excavation done in 1973 by the O’Hare Construction Company on a
U.S. highway project, excavations prior to 1973 to supply materials used in building a
road, excavations from a reservoir in the late 1960s and early 1970s, and excavation to
provide materials to build a canal.
In August of 1989, the Federal Land Bank of Sacramento acquired the property.
Shortly thereafter, the Theodore E. Thom DDS-MSD-PC Employee’s Profit Sharing and
Pension Trust (Thom Trust) partnered with Timberhitch, Inc. and reacquired the property.
In 2003, McMillan formed BCM, and the Thom Trust deeded the mineral rights to the
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property to BCM and retained the surface rights. In 2006, Jack and Jim Williamson
acquired the surface rights to the property.
D. Permits Secured for Mining the Property
According to McMillan, he first sought a permit for Timberhitch, Inc. to mine the
property in 1973. However, when he went to County offices to turn in the application,
“[t]he clerk took it back to the director who came out and told me it was unnecessary in
Ag[ricutural] Preserve property.”
In 1979, the Commission issued Timberhitch, Inc. a five-year use permit to
operate three gravel excavation sites. This appears to be the first use permit on record for
the property. The use permit was subsequently renewed in 1984 and 1989, and another
permit was approved in 1993.
E. McMillan I
Subsequent to the issuance of the 1979 use permit--dating as far back as 1990 and
coming to a head in 2006--the County and McMillan began to dispute whether
Timberhitch, Inc. and later BCM were in compliance with various requirements under
SMARA and local ordinances that governed the conditions placed on entities with use
permits to mine land.
In 2006, following an inspection of the property during which inspectors
determined the property was not in compliance with various requirements of the local use
permit and SMARA, the Siskiyou Planning Department began meeting and
corresponding with McMillan In an effort to resolve the purported deficiencies.
(McMillan I at p. *8.) Eventually, in August 2007, the Department issued an Order to
Comply with various requirements of the use permit and SMARA. (Id. at p. *11.)
Following a series of hearings before the Commission and then the Board, the Order to
Comply was confirmed. (Id. at pp. *13 & *15.) Throughout the hearings before the
Commission and the Board, McMillan maintained that “the information he had provided,
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including the Williamson Act contracts covering the land, established that he had a vested
right to mine. He claimed that with a vested right that arose before 1976, he did not need
a use permit.” (Id. at p. *11.) He further maintained that his right to mine covered the
entire property, not just the patches previously mined because “ ‘you go where the gravel
is.’ ” (Id. at p. *12.)
Appellants then sought a writ of mandate in the superior court in which they
challenged the Order to Comply and alleged the County had failed to proceed in a
manner required by law. (McMillan I at p. *15.) The superior court denied the petition
and request for declaratory relief. (Id. at p. *17.) On appeal, this court reversed the
superior court determination and remanded the case for a vesting determination. (Id. at
p. *3.)
At issue in McMillan I was whether a writ of mandate ought to have been issued
directing the County to (1) vacate the Order to Comply, and (2) make a vesting
determination as to whether appellants possessed a vested right to mine the land. (Id. at
pp. *1-*3.) The appellants maintained that “they have a vested right to mine that, under
the diminishing asset doctrine, extends to the entire property, not just the portion
previously mined.” (McMillan I at p. *1.) This court held:
“[T]hat plaintiffs are entitled to a vesting determination and such determination
may properly be based on actions of plaintiffs’ predecessors in mining the Timberhitch
Quarry. A determination of whether plaintiffs have a vested right to continue to mine
Timberhitch Quarry, and, if so, the extent of that right, is a necessary prerequisite to
enforcement actions because the vested determination governs the coverage of the
reclamation plan and the financial assurances.” (McMillan I at p. *3.) Additionally, we
directed the superior court to:
“[I]ssue a writ of mandate ordering the County to rescind its Order to Comply, to
vacate existing notices of violations and penalties with respect to Timberhitch Quarry,
and to conduct a vesting determination in compliance with Hansen Brothers
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[Engineering Co. v. South Central Coast Regional Com. (1986)] 12 Cal.4th 533[
(Hansen)] and Calvert [v. County of Yuba (2006)] 145 Cal.App.4th 613[ (Calvert)], as to
plaintiffs’ claim of a vested right to continue mining Timberhitch Quarry. Plaintiffs shall
recover their costs on appeal. (Cal. Rules of Court, rule 8.278(b).)” (Id. at p. *45.)
F. Proceedings Following Remand
McMillan requested a vested mining rights determination from the County in
October 2015. The Commission held a hearing on August 10, 2016. In September 2016,
the Commission found appellants “have no vested right to surface mine the subject
property” and had “failed to meet their burden of proof.”
Appellants filed an appeal of the Commission’s decision with the Board. In
considering appellants’ claim to a vested right to mine the property, the Board found that
the property was located in an area of the County that was subject to the 1953 ordinance,
Ordinance No. 256. Thus, the Board indicated that “any surface mining on the property
became non-conforming use on May 15, 1953, which is therefore the date that rights
would have vested on the subject property if properly established by the appealing party,”
and that, “[i]n order to determine that [a]ppellants have vested rights the Board must find
that lawful surface mining was diligently commenced prior to May 14, 1953.” Relying
on this requirement, the Board considered the evidence presented by appellants regarding
whether surface mining operations at the property as contemplated by Ordinance No. 256
had “ ‘diligently commenced,’ or commenced at all” by 1953. In so doing, the Board
indicated it was unable to make a determination regarding what type of land-use
activity was depicted in the 1944 aerial photos McMillan provided. The Board
concluded (1) that appellants did not meet their burden of proving, by the preponderance
of the evidence, that they had a vested right to mine the property; and, therefore, (2) “that
the [a]ppellants do not have a vested right to surface mine on the subject property.”
This action followed.
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DISCUSSION
I
This Appeal Is Timely
The County argues this appeal is untimely. It is not.
According to California Rules of Court, rule 8.104(a)(1), a party must file a notice
of appeal on the earliest of the following dates: “(A) 60 days after the superior court
clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’
of judgment or a filed-endorsed copy of the judgment, showing the date either was
served; ¶ (B) 60 days after the party filing the notice of appeal serves or is served by a
party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of
the judgment, accompanied by proof of service; or ¶ (C) 180 days after entry of
judgment.”
Here, the judgment was entered on July 18, 2018, and the County served a notice
of entry of judgment on August 3, 2018. Sixty days after August 3, 2018, was Tuesday,
October 2, 2018. Petitioner filed the notice of appeal on September 10, 2018, well before
October 2, 2018.
The County’s argument that the appeal was untimely is based on the County’s
position that the appealable order at issue was not the July 18, 2018, judgment but the
April 2, 2018, statement of decision made by the superior court which served as the basis
for an April 11, 2018, motion for reconsideration filed by appellants. Treating the
statement of decision as the operative appealable order, the County reasons that the
applicable rule for determining the deadline to file a notice of appeal is an exception to
California Rules of Court, rule 8.104 contained in rule 8.108(e), which is triggered when
a party serves a motion to reconsider an appealable order. Under rule 8.108(e), if the
statement of decision was the operative appealable order, the last day to file an appeal
would have been July 10, 2018. (See Cal. Rules of Court, rule 8.108(e).) “But a
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statement of decision is not treated as appealable when a formal order or judgment does
follow, as in this case.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894,
901.) To do so would “contravene ‘the well-established policy, based upon the remedial
character of the right of appeal, of according that right in doubtful cases “when such can
be accomplished without doing violence to applicable rules.” ’ [Citations.]” (Ibid.) This
is true even if the appellant and the trial court treated the statement of decision like a final
order in a motion to challenge that decision. (See In re Marriage of Campi (2013)
212 Cal.App.4th 1565, 1571-1572 [“Although the trial court apparently treated its
statement of decision as a judgment when it entertained [the] motion for a new trial, its
error in doing so does not affect our jurisdiction to hear [the] appeal under the particular
facts and circumstances presented here”].) Here, the trial court indicated in the text of the
statement of decision that it was a “proposed Statement of Decision pursuant to
California Rule of Court 3.1590,” and the concluding paragraphs indicated that a
“judgment shall be entered in favor of the County.” This language indicates the superior
court anticipated a formal judgment would follow. Moreover a formal judgment did
follow. The deadline to file a notice of appeal was October 2, 2018, and appellants met
that deadline.
II
The County Correctly Determined There Is No Vested Right to Surface Mine the Property
SMARA generally requires entities conducting surface mining to secure permits.
(Pub. Resources Code, § 2770, subd. (a).) There is an exception to the SMARA’s
permitting requirement if a person “has obtained a vested right to conduct surface mining
operations prior to January 1, 1976, . . . as long as the vested right continues and as long
as no substantial changes are made in the operation except in accordance with this
chapter. A person shall be deemed to have vested rights if, prior to January 1, 1976, the
person has, in good faith and in reliance upon a permit or other authorization, if the
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permit or other authorization was required, diligently commenced surface mining
operations and incurred substantial liabilities for work and materials necessary for the
surface mining operations.” (Id., § 2776, subd. (a).)
Based on this exception to SMARA’s requirements and the issues raised in this
action, we will undertake a four step analysis to determine if appellants have a vested
right to mine the property for gravel without a permit. First, we identify the earliest point
when the County or state enacted ordinances or statutes governing the permitting of
mines where the property is located. Second, we determine whether that ordinance or
statute applies to the form of gravel extraction appellants wish to perform without a
permit at the property. Third, we determine if appellants met their burden to demonstrate
that the covered form of gravel extraction had diligently commenced at the property by
the time the applicable ordinance or statute was adopted. Finally, we consider whether
other factors might excuse the property from SMARA’s permitting requirements.
A. Standard of Review
A party that claims the right to engage in a nonconforming use of property based
on prior use at the time a zoning ordinance was adopted bears the burden of proof “to
establish the lawful and continuing existence of the use at the time of the enactment of the
ordinance.” (Melton v. San Pablo (1967) 252 Cal.App.2d 794, 804; see also SCC, § 10-
5.106(g)(1).)
Because the County’s determination that there was not a vested right to mine the
land “effectively precludes continuance of” appellants’ ability to conduct a mining
business on the property, “unless it applies for and is granted a conditional use permit by
the county, the superior court properly exercised its independent judgment in making
factual determinations based on the administrative record.” (Hansen, supra, 12 Cal.4th at
p. 559.) We must uphold the superior court’s findings of fact if those facts are supported
by substantial evidence. (Ibid.) In instances where the facts are undisputed and what
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remains is a question of law, we apply independent or de novo review. (Id. at p. 560; see
also People v. Cormer (2001) 24 Cal.4th 889, 894.) However, even when applying an
independent judgment test, courts must give a strong presumption of correctness to the
administrative findings, and the “burden rests upon the complaining party to show that
the administrative decision is contrary to the weight of the evidence.” (Fukuda v. City of
Angels (1999) 20 Cal.4th 805, 816-817, internal quotation marks removed.)
We interpret contract terms using de novo review. (E.M.M.I. Inc. v. Zurich
American Ins. Co. (2004) 32 Cal.4th 465, 470.) We interpret Williamson Act contracts
“according to the usual rules for construing contracts in general.” (75 Ops. Cal. Atty.
Gen. 278, 281, citing Delucchi v. County of Santa Cruz (1986)179 Cal.App.3d 814, 821-
822 and County of Marin v. Assessment Appeals Board (1976) 64 Cal.App.3d 319, 324-
325.)
B. The Law of the Case Does Not Preclude Application of the 1953 Ordinance
Appellants argue that, for purposes of this matter, we must treat 1974 as the first
year in which a permit was required by the County under the doctrine of the law of the
case. They maintain this is so because in McMillan I this court “expressly rejected the
County’s argument” that an earlier ordinance required a permit for mining and found that
“the County was bound by the position it took in the administrative proceedings,” which
was that “no use permit was required before 1974.” We disagree. Appellants’ argument
mischaracterizes both the plain text and the import of this court’s decision in McMillan I.
Given the significance appellants place on references to the 1974 ordinance in
McMillan I, it is helpful to review the four times this court references that ordinance in
McMillan I:
o First, in our recitation of background facts describing the history of mining
regulation in Siskiyou County, we stated, “[i]n the mid-1970’s, the
government began regulating surface mining. In 1974, the Siskiyou County
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Board of Supervisors adopted an ordinance that required a use permit for
mining.” (McMillan I at pp. *4-*5.) This court noted in a footnote to this
sentence, which appellants heavily rely on in making their argument, that,
“[i]n its answer to the petition, the County asserts that a use permit was
required for surface mining since 1958. It argues that since no use permit
was obtained until 1979, mining at Timberhitch Quarry was not legal and
therefore no vested rights arose. At the hearing before the Board of
Supervisors, however, the County stated no use permit was required before
1974.” (Id. at p. *5, fn. 4.)
o Second, in describing the factual context in which the Order to Comply was
issued, this court observed that in addressing the applicability of
Williamson contracts to permit requirements in a report provided to the
Commission, staff indicated, “even though mining, or natural resource
development, was permitted in agricultural areas of the County under the
Williamson Act, a use permit was still required to mine. A use permit was
not required only for mines in production prior to 1974, as those mines
were vested. In the case of Timberhitch Quarry, however, because the
boundaries of the mining had expanded, a use permit was required.”
(McMillan I at pp. *11-*12.)
o Third, in its discussion regarding whether the County must make a vesting
determination, this court described appellants’ position as being that “they
have a vested right to mine the entire property of Timberhitch Quarry
without a use permit because the property was mined before 1976, the date
of SMARA’s implementation.” (McMillan I at p. *24.) In a footnote, this
court noted that certain amici contended that “a common law vested right to
mine Timberhitch Quarry arose in 1974 when the County passed an
ordinance requiring a permit to mine. Amici contend SMARA merely
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recognized this vested right in 1976. As the question of whether the vested
right arose in 1974 or 1976 is not relevant to our analysis, we need not
answer it.” (Id. at p. *25, fn. 12.)
o Finally, this court made reference to the 1974 ordinance in describing the
appellants’ argument regarding the applicability of the diminishing asset
doctrine: “Here, plaintiffs contend they have a vested right to mine the
entire Timberhitch Quarry, even portions that were not mined before 1976,
based on the diminishing asset doctrine. Before the requirement of a use
permit went into effect (in 1974 under the SCC and in 1976 under
SMARA), in reliance on the authorization provided by the Williamson Act
contracts, under which mining was permitted, surface mining was
conducted at Timberhitch Quarry. Plaintiffs contend the intent was to mine
the entire property as ‘you go where the gravel is.’ ” (McMillan I at p. *32.)
The doctrine of the law of the case, which applies to prevent a contrary ruling on a
point of law previously ruled upon by a reviewing court, is invoked only “where the point
of law involved was necessary to the prior decision and was ‘ “actually presented and
determined by the court.” ’ ” (People v. Gray (2005) 37 Cal.4th 168, 197.) In
McMillan I, the key holdings and directives were that (1) appellants were entitled to a
vesting determination (McMillan I at p. *45); (2) the vesting determination would need to
be made in a proceeding by noticed hearing per the directives of Calvert (id. at pp. *42-
*43); and (3) in making that vesting determination the County would need to apply rules
outlined in Hansen, which applies the diminishing asset doctrine in identifying the area of
a property subject to a vesting determination and which allows vesting determinations to
be based on the use of land by prior owners (id. at pp. *39-*40). To make these holdings,
it was not necessary for this court to opine as to whether the County began requiring the
use of permits to mine land in 1974 or sometime in the 1950s. Instead, this court, in
describing the regulatory history that gave rise to the issues in McMillan I, used 1974 as a
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reference point in the general background, and dropped one footnote to explain why it
chose the convenience of using 1974 as a starting point and another indicating the
specific year a vested right could have arisen was “not relevant to our analysis” as to
whether a vesting determination was needed. (Id. at pp. *24-*25, fn. 12.) Moreover, at
least three of the four points referenced above describe not the court’s holdings, but the
factual background, as argued by the parties regarding the year 1974.
Appellants argue that the holding that no permit was required prior to 1974 was a
principle or rule of law necessary to the McMillan I decision because “[i]f a permit had
been required prior to 1974, there would have been no need for this Court to order a
vesting determination; it was at all relevant times undisputed that Appellants had no such
permit.” This position is contrary to the import of this court’s reasoning in both
McMillan I and Calvert.
In McMillan I, this court observed that the many factors to be considered when
determining whether a vested right exists would “require[] a hearing to resolve numerous
factual issues.” (McMillan I at p. *40.) Which ordinances applied and when they applied
are two of these numerous issues.
In Calvert, the court emphasizes that a noticed public hearing is essential to
protect the interests of both the party that seeks to mine property and adjacent landowners
whose own property interests might be impacted by a vesting determination. (See
Calvert, supra, 145 Cal.App.4th at pp. 626-62f7.) In Calvert the County of Yuba had
sent Western Aggregates LLC (Western) a determination letter that stated, based on a
written application package, Yuba County had determined Western had a vested right to
mine 3,430 acres of property. (Id. at p. 618.) Yuba County made the determination
“without notice to adjacent landowners or to the public, and without a hearing.” (Ibid.)
A local rancher who owned property near the parcel at issue and a local coalition brought
an action challenging Yuba County’s determination. (Id. at pp. 618-619.) It is in this
context that this court ruled “[i]f Western wants to continue its aggregate mining [of the
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property] it will either have to prove its claim of vested rights in a public adjudicatory
hearing before the Board (to be conducted within the County’s area of jurisdiction), or
obtain a permit to conduct such surface mining based on a public adjudicatory hearing
before the County.” (Id. at pp. 635-636.) A public hearing was needed because
“property owners adjacent to the proposed mining have significant property interests at
stake,” and the potential “property deprivation” to those owners if Western had been
given rights to mine the land were “ ‘substantial’ enough to require procedural due
process protection.” (Id. at pp. 626-627.)
In short, Calvert hearings do not just protect the party who wants to mine land;
they protect local landowners who might want the land to remain unmined or to at least
remain subject to permitting requirements. In this context, if we were to accept
appellants’ argument that the County was barred from considering earlier ordinances in
the hearing on remand, we would deprive other County residents of the ability to
participate in a full and complete consideration of the issues including an investigation of
which past ordinances might have applied to permitting at the property. Moreover, we
would be limiting that proceeding based on statements and conclusions made at a prior
hearing that was found to be inadequate.
The County was allowed to consider the 1953 ordinance in the vesting hearing on
remand.
C. Application of the 1953 Ordinance
Because the law of the case did not require the County and superior court to treat
1974 as the cutoff date for the vesting of gravel mining rights at the property, we now
consider whether the right to mine the property for gravel needed to vest by 1953.
This assessment is twofold. First, we consider if Ordinance No. 256 applied to the
form of gravel extraction at issue here, thereby triggering a requirement that any such
activity after 1953 be either permitted or done pursuant to a vested right. Second, if we
16
determine Ordinance No. 256 applied to these activities, we must determine if the right to
engage in those activities vested before Ordinance No. 256 passed, thereby obviating the
requirement to secure a permit to mine gravel after the ordinance passed. We conclude
that (1) Ordinance No. 256 did require a permit for the type of mining at issue here, and
(2) the County and superior court properly concluded appellants did not meet their
burden to establish the right to mine the property for gravel vested before 1953.
Before explaining our conclusions, we note we focus our discussion on the
meaning of the term “surface mining” in Ordinance No. 256. We asked the parties to
submit supplemental briefing regarding the meaning of the phrase “heavy power
equipment.” In their supplemental brief, appellants argue that the term “heavy power
equipment” can only be understood as used in conjunction with “surface mining,” and
then use the portion of their supplemental brief allotted to respond to our inquiry
regarding the meaning of “heavy power equipment” to expand on their argument that the
gravel extraction at issue here was not surface mining. In a later section of their
supplemental brief regarding evidence of the use of heavy power equipment in the
administrative record, appellants (1) note the earliest record of “engine-powered
equipment” purchased was of a bulldozer bought by Lutz “in the late 1940s” and (2)
suggest that “heavy power equipment for the commercial excavation of natural materials
involved . . . horse-drawn dragged scrapers that were used to gather gravel to support
construction of a narrow-gauge railroad” in the late 1800s or early 1900s As it does not
change our conclusion that the evidence in the record did not support a finding that the
right to mine the property was vested by 1953, we treat “horse drawn scrapers” and
bulldozers as heavy power equipment for the sake of our analysis.
1. The 1953 Ordinance Required a Permit for the Gravel Extraction at Issue Here
Ordinance No. 256 prohibited both the “[c]ommercial excavation of natural
minerals within 100 feet of a public road,” and “[s]urface mining, involving heavy power
17
equipment” on unincorporated lands within Siskiyou County “unless and until a use
permit [was] secured.” Neither party has taken the position that the mining at issue here
has occurred within 100 feet of a public road. Thus, we are left to consider if the mining
for sand, gravel, and rock at issue here is “surface mining, involving heavy power
equipment” according to the terms of the ordinance. Appellants argue that the terms of
the ordinance and the historical record demonstrate “surface mining” as used in
Ordinance No. 256 does not apply to the type of gravel extraction at issue here. We
disagree.
We interpret ordinances using the same rules we use to interpret statutes. (Amaral
v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1183.) “These rules are well
established. ‘When faced with a question of statutory interpretation, we look first to the
language of the statute. [Citation.] In interpreting that language, we strive to give effect
and significance to every word and phrase. [Citation.]’ (Copley Press, Inc. v. Superior
Court (2006) 39 Cal.4th 1272, 1284–1285 [ ].) These words ‘are to be given their plain
and commonsense meaning. [Citation.]’ (Murphy v. Kenneth Cole Productions, Inc.
(2007) 40 Cal.4th 1094, 1103 [ ].)” (Amaral v. Cintas Corp. No. 2 at pp. 1183-1184.)
“Only when the statute’s language is ambiguous or susceptible of more than one
reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.”
(Murphy v. Kenneth Cole Productions, Inc. at p. 1103.) At first blush, it appears a
permitting requirement for “surface mining” plainly captures the extraction activities at
issue here. Nevertheless, we briefly address appellants’ arguments that rules of statutory
construction and historical context dictate otherwise.
First, appellants argue that in requiring a permit for the commercial excavation of
natural minerals within 100 feet of a road, Ordinance No. 256 “necessarily” meant that
“any gravel pits more than 100 feet from a road did not require a use permit.” Relying on
this position, appellants then conclude the “obvious and inescapable conclusion is that the
authors of the 1953 [ordinance] regarded ‘commercial excavation of natural materials’ as
18
something different than ‘surface mining.’ ” To reach appellants’ conclusion one must
assume that in requiring a permit for the commercial excavation of natural materials
within 100 feet of a public road, the County intended to grant unfettered permission to
engage in that type of gravel extraction if it occurred more than 100 feet from a public
road, regardless of the extent to which and speed with which that extraction would result
in tearing up the ground. But that conclusion is not dictated by the plain language of the
ordinance. A more straightforward--and plausible--reading of the plain language of the
ordinance is that the County intended to require permits for both the commercial
excavation of natural resources within 100 feet of a public road, regardless of the type of
equipment used in that excavation, and surface mining of County lands using heavy
power equipment, regardless of how far away that mining occurred from public roads.
Put differently, requiring a permit for the commercial excavation of natural minerals
within 100 feet of a road, does not mean that “any gravel pits more than 100 feet away
from a road did not require a use permit”; it means that some gravel extraction activities
more than 100 feet from a road did not require a use permit. Thus, taken together the
plain meaning of the two parts of the ordinance do not create a conflict if the extraction
of gravel at issue here is considered both a form of commercial excavation of natural
materials more than 100 feet from a public road and a form of surface mining involving
heavy power equipment.
Next, appellants argue that the gravel extraction at issue here would not have been
considered “surface mining, involving heavy power equipment” in 1953 by suggesting
that at the time Ordinance No. 256 was passed, the County understood “surface mining”
to mean something more akin to “placer mining,” and “placer mining” specifically
involves mining sand, gravel, or rock to separate out precious metals contained therein.
To make this argument, appellants turn to the 1946 ordinance, Ordinance No. 181, which
specifically stated that “for the purpose of this ordinance certain terms herein are
herewith defined . . . . [¶] . . . [¶] ‘Surface mining’ is defined as placer mining carried on
19
through the use of conventional excavating machinery, such as dredgers, truck scrapers,
power shovels, draglines, tractors, trucks, and bulldozers, and also by the use of hydraulic
monitors.” Appellants try to buttress this argument in their supplemental brief by citing
Oregon, New Mexico, and Utah cases from around the time the County passed Ordinance
No. 256 to suggest gravel and sand were not considered “minerals” in 1953, and mining
was understood to be an activity to extract minerals. Therefore, based on appellants’ line
of reasoning, surface mining was not understood to include operations to extract gravel
and sand from land.
As to appellants’ reliance on Ordinance No. 181, the ordinance specifically limited
its narrow definition of “surface mining” to that ordinance. Presumably, if the County
had wanted to apply similar limits to Ordinance No. 256’s use of the term “surface
mining,” it would have explicitly done so.
As to what can be gleaned from contemporaneous caselaw, a search for California
decisions between the dates January 1, 1948, and December 31, 1958, that contain the
words “gravel” and “mine” reveals that gravel extraction of the sort at issue here was
considered mining. In Williams v. Pacific Coast Aggregates, Inc. (1954) 128 Cal.App.2d
777, 778 a plaintiff ranch owner brought negligence and nuisance claims against a
defendant “mine operator” alleging the defendant’s “sand and gravel mining operations”
had damaged his crops. The defendant in that action created “gravel pits” as part of his
mining operations. (Id. at p. 780.) In Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 366
(italics added) the court described a plant that engages in the “excavation of rock, sand
and gravel,” as supplying “approximately 30 per cent of all of the rock and gravel mined
from the . . . area.” In McCaslin v. Monterey Park (1958) 163 Cal.App.2d 339, 344-345,
347, 348 an ordinance “entitled: ‘An Ordinance of the City Council of the City of
Monterey Park Amending Certain Sections of the Monterey Park Municipal Code
Relating to the Excavation and Processing of Decomposed Granite, Sand, Rock and
Gravel[,]’ ” was found not to apply to appellant’s “mining [of] decomposed granite”
20
because “when a sand and gravel pit has been in operation prior to the passage of a
zoning ordinance and continuously thereafter, a nonconforming use existed and operation
of the pit cannot be enjoined.”
Because the plain language of the ordinance applies to the type of gravel
extraction at issue here, and appellants have failed to convince us otherwise, we need not
engage in an assessment of the “[h]istory of County [r]egulation” of the mines to
determine the meaning of the term “surface mining.” Even if we were to engage in that
analysis, it seems unlikely it would compel a different conclusion. For example,
appellants refer to a 1973 incident in which McMillan was allegedly told by a County
employee that he did not need to secure a permit “for the excavation [of] gravel.” Yet a
review of the note McMillan sent to O’Hare Construction--a company that in 1973
intended to build a plant on the property and use its gravel--indicates that the County
employee said a permit would not be needed because the property was an “Ag Preserve
property.” This response would have not been dependent on the definition of surface
mining, but on an--as we shall see below, erroneous--interpretation of laws applying to
Williamson contracts. Interestingly, in the note to O’Hare Construction, McMillan refers
to the permit O’Hare was granted to locate a plant on the property as being a permit to,
“by implied consent, mine gravel.” This indicates that by at least 1973, gravel was
considered a substance that could be mined, and that gravel mining was viewed as subject
to use permitting requirements.
2. The County and Superior Court Correctly Determined Appellants’
Predecessors Did Not Diligently Commence Mining Before 1953
Appellants did not meet their burden to prove the property was used for surface
mining for gravel by 1953. Leaving aside the strength and admissibility of the evidence
provided, and considering it even in the light most favorable to the appellants, the
evidence only supports a possibility that, with respect to conduct prior to 1953, at some
21
point in the late 1890s and early 1900s, gravel was extracted using horse-drawn scrapers
at the property. The next point in time for which there is any indication that the property
was mined for gravel comes from McMillan’s statement that Lutz informed him he used
a bulldozer to develop a pit and provide cinders the U.S. Forest Service “in the early
50s.” Other than that, McMillan’s evidence regarding Lutz’s use of the property suggests
that sometime before or in 1961, Lutz acquired the property with the intention to use the
property “for expansion of his ranch.” Taken together, at best, this evidence compels the
conclusion that gravel was collected from the property in the early 1900s, and then that
collection was abandoned until Lutz engaged in another short-term collection of gravel at
a time that may have been after the County adopted Ordinance No. 256. Additionally,
after 1953, and for over five years before McMillan bought the property, the property’s
owner intended to use the property for ranching.
Appellants have not met their burden to establish the right to mine the property for
gravel vested before 1953.
3. Post-1953 Evidence Does Not Strengthen Appellants’ Argument
Because we have determined that the operative year for determining whether the
property vested was 1953, the evidence regarding post-1953 mining activities in the
administrative record is irrelevant to consideration of whether the right to mine the
property vested before the County adopted laws requiring a permit to mine the property.
Appellants imply the County should be estopped from determining the right to
mine the property needed to be vested by 1953 due to McMillan’s hearsay representation
that in 1973 a County employee told him he did not need a permit to mine the property.
Even if McMillan’s representation of what transpired in 1973 is accurate, it is “well-
established . . . that an estoppel will not be applied against the government if to do so
would effectively nullify ‘a strong rule of policy, adopted for the benefit of the
public, . . . .’ (County of San Diego v. Cal. Water etc. Co. (1947) 30 Cal.2d 817, 829-830
22
[ ], see also cases there cited.)” (Long Beach v. Mansell (1970) 3 Cal.3d 462, 493.) In
adopting SMARA, the Legislature declared, “that the extraction of minerals is essential to
the continued economic well-being of the state and to the needs of the society, and that
the reclamation of mined lands is necessary to prevent or minimize adverse effects on the
environment and to protect the public health and safety,” and “the state’s mineral
resources are vital, finite, and important natural resources and the responsible protection
and development of these mineral resources is vital to a sustainable California.” (Pub.
Resources Code, § 2711, subds. (a) & (f).) Because SMARA was enacted to protect
strong public interests, we will not use estoppel theories to justify dispensing with its
requirements here.
Similarly, we are not convinced that appellants’ due process rights have been
violated by the County’s failure to act earlier to consider whether the right to mine the
property for gravel was vested. Notably, appellants argue that due process dictates we
shift the burden of proof to the County to demonstrate the right to mine the property was
not vested in 1953 because, as a result of the time passed between 1953 and when the
County made its vesting determination, there has been decades of staff turnover in the
County and witnesses like Lutz have died, rendering possible evidence unavailable. But
this position ignores that the County’s delay in demanding the property’s owners secure a
permit was due, at least in part, to McMillan and the prior owner’s actions in 1979 in
securing a permit.
Indeed--though because we otherwise find in the County’s favor, we do not
consider its estoppel and laches argument at length here--it is worth noting that the
passage of time also resulted in the County losing access to witnesses and other evidence
it might have otherwise had available to it had McMillan and the predecessor owner
indicated earlier that they believed they had a vested right to mine the property rather
than securing a permit to mine the property in 1979. “ ‘It is well settled, however, that
courts of equity will often refuse relief if there has been such delay and passive neglect
23
on the part of the complainant as, coupled with facts amounting to acquiescence in the
acts complained of, will render the granting of the relief inequitable. (Stevenson v. Boyd[
(1908)], 153 Cal. 630, 636 [96 P. 284, 19 L.R.A. N.S. 525].) In determining whether or
not the delay has been unreasonable, regard will be had to any circumstances which
justify the delay, to the nature of the case and the relief demanded, and to the question
whether the rights of the defendants, or of other persons, have been prejudiced by the
delay.’ (See also Cahill v. Superior Court[ (1904)] 145 Cal. [42,] 46-47, to the same
effect.)” (Lewis v. Superior Court of Los Angeles County (1968) 261 Cal.App.2d 736,
740-741.) As such, “[t]here seems to be no doubt that ‘in a mandamus proceeding relief
may be denied upon the ground of laches.’ ” (Id. at p. 740, citation removed; see also
County of Imperial v. McDougal (1977) 19 Cal.3d 505, 510-511 [“a landowner or his
successor in title is barred from challenging a condition imposed upon the granting of a
special permit if he has acquiesced therein by either specifically agreeing to the condition
or failing to challenge its validity, and accepted the benefits afforded by the permit”].) At
a minimum, to the extent appellants were harmed by the County’s delay in holding a
vesting hearing, appellants were not innocent in the creation of the delay and the County
also lost evidentiary resources due to the passage of time.
4. The Williamson Contracts Do Not Establish a Vested Right to Surface Mine the
Property
Appellants argue they may surface mine the property without a permit under
Williamson contracts Timberhitch, Inc. and the County entered. Appellants’ argument is
essentially that in establishing an agricultural preserve that included the property, the
County created a new district in which certain zoning requirements were superseded,
including the requirement to secure a use permit before surface mining the property. We
disagree. For the reasons that follow, the creation of an agricultural preserve did not
result in the creation of a new zoning district and did not expand the uses owners can
24
make of the properties within the preserves. Moreover, the record does not suggest that
the County intended to expand the number of uses to which owners could put their
property without the benefit of a use permit.
The Williamson Act was enacted to prevent the loss of “agricultural and open
space land and discourage premature urban development.” (City of Humboldt v. McKee
(2008) 165 Cal.App.4th 1476, 1487 (McKee).) Under the provisions of the act, the local
government establishes and regulates local agricultural preserves then enters into land
conservation contracts with landowners of property within those preserves. (Id. at
p. 1482.) The contracts “may . . . limit the use of agricultural land” and “may provide for
restrictions, terms, and conditions . . . more restrictive than or in addition to those
required” by the act. (Gov. Code, § 51240.) “In return for accepting restrictions on the
land, the landowner is ‘guaranteed a relatively stable tax base, founded on the value of
the land for open space use only and unaffected by its development potential.’ [Citation.]
The hallmark of this statutory scheme is its reliance on voluntary agreements between the
government and the landowner, where the landowner chooses, on an annual basis, to
accept certain limits on his or her use of the land in return for an explicit property tax
reduction.” (McKee, supra, 165 Cal.App.4th at p. 1482.) Williamson contracts must
have an initial term of at least 10 years and “shall provide that on the anniversary date of
the contract or such other annual date as specified by the contract a year shall be added
automatically to the initial term unless notice of nonrenewal is given.” (Gov. Code,
§ 51244, subd. (a).)
Significantly, “[a] county’s agricultural preserve guidelines are separate from, and
may be more restrictive than, its zoning regulations.” (McKee, supra, 165 Cal.App.4th at
p. 1493.) In short, the Williamson Act exists to limit land use beyond what might
otherwise be permitted by law, including zoning ordinances. No language is included
within these limitations that allows for expanding on existing zoning limitations. The
25
absence of language allowing Williamson contracts to expand the scope of how land is
used within an agricultural preserve is significant.
Chapter 4, of division 1, of title 7 of the Government Code “provide[s] for the
adoption and administration of zoning laws, ordinances, rules and regulations by
counties.” (§ 65800.) It allows the “legislative body of any county” to “adopt
ordinances” that that regulate the use of land within their jurisdiction. (Id., § 65850,
subd. (a).) Once a county adopts zoning laws, “[a]ll such regulations shall be uniform for
each . . . use of land throughout each zone.” (Id., § 65852.) Any amendment to an
ordinance which removes or modifies a regulation imposed within a zone, must be
adopted following specific statutory guidelines. (Id., § 65853) As such, the
“ ‘[r]ezoning of use districts or changes of uses and restrictions within a district can be
accomplished only through an amendment of a zoning ordinance, and the amendment
must be made in the same mode as its original enactment. [Citations.]’ (Italics added.)
(Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834-835 [ ]; Richter v. Board of
Supervisors (1968) 259 Cal.App.2d 99, 105 [ ]; 8A McQuillin, Municipal Corporations
(1965 rev. vol.) § 25.245, pp. 164-165.)” (City of Sausalito v. County of Marin (1970) 12
Cal.App.3d 550, 563-564; but see Associated Home Builders etc., Inc. v. City of
Livermore (1976) 18 Cal.3d 582, 596 fn. 14 [Disapproving Johnston v. City of Claremont
(1958) 49 Cal.2d 826 to the extent it found that general law cities cannot adopt zoning
ordinances by initiative].)
These statutory protections for maintaining uniformity within zoning districts are
critical, because a “ ‘zoning scheme, after all, is similar in some respects to a contract;
each party foregoes rights to use its land as it wishes in return for the assurance that the
use of neighboring property will be similarly restricted, the rationale being that such
mutual restriction can enhance total community welfare. [Citations.] If the interest of
these parties . . . is not sufficiently protected, the consequence will be subversion of the
critical reciprocity upon which zoning regulation rests.’ (Topanga Assn. for a Scenic
26
Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517–518 [ ].)” (Neighbors in
Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997,
1009.) “Property owners seeking relief from a zoning restriction typically take one of
three courses of action.” (Id. at p. 1006.) Owners can either (1) obtain a change in the
zoning ordinance following specific procedures (ibid.), (2) apply for a conditional use
permit (ibid.); or (3) apply for a variance (id. at p. 1007). Neither the appellants nor their
predecessors took any of these three actions. Allowing the County to create an exception
to its zoning requirements that is “not a rezoning or other amendment of the ordinance,
not a conditional use permit in conformance with the ordinance, and not a proper
variance” would functionally allow this zoning “ ‘contract’ ” the County has with all its
residents to be broken. (Id. at p. 1009.)
Nothing in the resolution establishing the Williamson contracts at issue here or the
contract itself contravenes our conclusion that the contracts do not support appellants’
position that they ought to be able to surface mine the property without a permit. While
the contract and referenced resolution may identify the range of uses to which the land
can be used as those that are part of “the production of agricultural commodities for
commercial purposes,” “compatible uses,” and “natural resource development,” in
indicating that the “land shall not be used for any purpose, other than” the articulated
range of uses, the contract establishes itself as a limit and not an extension on what
landowners might be able to do with the land. “However broad may be the terms of a
contract, it extends only to those things concerning which it appears that the parties
intended to contract.” (Civ. Code, § 1648.) Here, though the language of “natural
resource development” may be broad, the overall language suggests the parties to the
contract only intended to protect the land from being converted to nonagricultural uses.
This limit to natural resource development is not the same as allowing all forms of
natural resource development, including unpermitted uses when a permit might otherwise
be required.
27
Contrary to appellants’ suggestion, the fact that surface mining was not included
on the list of activities the contract specifically indicated an owner could engage in if a
permit was obtained--e.g., churches, schools--does not mean any uses not on the list that
constitute natural resource development could be performed without a permit. Rather,
this list appears to provide a list of nonagricultural exceptions to the contract’s limiting
land use to natural resource development. Essentially, this language allows for a limited
range of permitted nonagricultural activities that otherwise would not be allowed at all by
a contract that limits the land’s use to the development of natural resources. The absence
of a specific type of natural-resource-development activity from that list does not remove
that activity from local permitting requirements.
III
The Superior Court Properly Denied Appellants’ Motion to Strike Costs
Appellants argue the superior court erred in denying its request to strike costs for
time charged by the County’s outside counsel and his paralegals to prepare the record,
totaling $11,288. Appellants argue the award was both (1) in contravention of the terms
of Code of Civil Procedure, section 1094.6, subdivision (c), which allows agencies to
collect the costs they incur to prepare records in writ hearings, and (2) neither reasonable
nor reasonably necessary as contemplated by Code of Civil Procedure, section 1033.5,
which identifies costs prevailing parties may collect in litigation.
Appellants first argument concerns the meaning of Code of Civil Procedure
section 1094.6, subdivision (c), which states, in a mandamus proceeding, “[t]he complete
record of the proceedings shall be prepared by the local agency or its commission, board,
officer, or agent which made the decision . . . . The local agency may recover from the
petitioner its actual costs for transcribing or otherwise preparing the record.” Appellants
argue this statute can only be read to allow the County to recover the costs for work
performed by agency staff, and not to allow costs for outside counsel and his paralegal.
28
We review this claim applying a de novo standard of review (City of Long Beach v.
Stevedoring Services of America (2007) 157 Cal.App.4th 672, 678), and find appellants
are incorrect. In The Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th
60, 70-71, the court was faced with the same question and indicated it did not “see a
reason to differentiate between labor costs incurred by individuals directly employed by a
public agency and those incurred by individuals employed by a private law firm retained
by the agency, so long as the trial court determines, as it did here, the labor costs were
reasonably and necessarily incurred for preparation of the administrative record. To hold
otherwise would undermine the statutory policy of shifting the costs and expenses of
preparing an administrative record away from the public and to the private individual or
entity bringing the lawsuit.” (Ibid.)
Turning to appellants’ second argument, Code of Civil Procedure section 1033.5,
subdivision (c)(2) and (3), requires that costs collected by prevailing parties to litigation
be both “reasonably necessary” and “reasonable in amount.” “ ‘Whether a particular cost
to prepare an administrative record was necessary and reasonable is an issue for the
sound discretion of the trial court. [Citations.] Discretion is abused only when, in its
exercise, the court “exceeds the bounds of reason, all of the circumstances being
considered.” [Citation.] The appellant has the burden of establishing an abuse of
discretion.’ [Citation.]” (The Otay Ranch, L.P. v. County of San Diego, supra, at p. 68.)
The $11,288 at issue here is comprised of fees charged for 42.4 hours of paralegal work
at a rate of $170 per hour ($7,208) and 13.6 hours of attorney work at a rate of $300 per
hour ($4,080). In a declaration submitted by appellants’ counsel in opposition to the
motion to strike costs, counsel for the County detailed hours spent by him and his office
paralegals communicating with County staff and board members to collect the documents
they needed to include in the record, transcribing records of hearings and verifying their
accuracy, and communicating with appellants regarding the form of the record’s index
and contents of the record. Counsel attached to his declaration numerous e-mails
29
between himself and McMillan, demonstrating efforts to resolve disagreements McMillan
raised regarding the form and content of the record. In light of the evidence submitted,
the superior court acted within its discretion in finding the costs incurred to prepare the
record in the form of attorney rates were both reasonably necessary and for a reasonable
amount.
DISPOSITION
We affirm the superior court’s judgment and ruling on appellants’ motion to strike
costs.
HULL, Acting P. J.
We concur:
MURRAY, J.
RENNER, J.
30