Preview
ROBERT H. PITTMAN, State Bar No. 172154
County Counsel
MICHAEL A. KING, State Bar No. 077014
Deputy County Counsel
575 Administration Drive, Room 105A
Santa Rosa, California 95403-2815
Telephone: (707) 565-2421
Facsimile: (707) 565-2624
Attomeys for Defendant
COUNTY OF SONOMA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SONOMA
10
FREAR STEPHEN SCHMID AND ASTRID Case No.: SCV-266731 consolidated with
11 SCHMID, SCV-266225 and
12 Plaintiffs
COUNTY OF SONOMA TRIAL BRIEF
13
DATE: 1-16-24
14
TIME: 9:00 am.
15 DEPT: 19
COUNTY OF SONOMA,
,
16 Complaint filed:
Defendant. 7/16/2020 (SCV -266731)
17
18
19 AND CONSOLIDATED ACTIONS
20
21 I INTRODUCTION
22 A. Lawsuit Against County of Sonoma
23 This action arises out of a dispute by Plaintiffs FREAR STEPHEN SCHMID AND ASTRID
24 SCHMID (“SCHMID”) with their neighbors, TWO ROCK VOLUNTEER FIRE DEPARTMENT aka
25 TWO ROCK FIRE DEPARTMENT (“TWO ROCK FD”). Plaintiffs SCHMID originally sued TWO
26 ROCK EFD in Case #SCV-266225, filed on April 15, 2020. The allegations include claims of violations
27 of sections of the Sonoma County Code dealing with zoning, trespass and declaratory relief.
28
County’s Trial Brief
The Complaint for Writ of Mandate against the County; SCV-266731, filed on July 16, 2020;
alleges facts that are nearly identical to many of the allegations in Case No. SCV-266225 against Two
Rock Fire Department. It is clear from this Complaint against the County, that the real dispute is with
Two Rock Fire Department.
The Verified Complaint for Writ of Mandate and Declaratory and Injunctive Relief for
Enforcement of County Ordinances (“Verified Complaint”) against the County in Case No. SCV-266731
(COS Exhibit 201), generally recounts the granting of a use permit by the County to Two Rock Volunteer
Fire Dept. for construction of a garage on property located at 7599 Valley Ford Road. Plaintiffs claim that
a hearing was required before issuance of the permit, and one was not held. Plaintiffs mostly allege
10 actions taken by Two Rock Volunteer Fire Dept., that they believe exceed the scope of the issued permit,
11 and/or have caused them harm.
12 Plaintiffs’ Verified Complaint against the County sets forth two causes of action: the First Cause of
13 Action is requesting a writ of mandate or injunctive relief under Code of Civil Procedure §1085 and/or
14 §1094.5. Plaintiffs incorporate those sections in the Second Cause of Action, but also request a
15 “declaration that the use permit granted the TRVFD,” is null and void due to lack of notice or hearing
16 constituting a substantive deprivation of “statutory rights” and denial of “due process rights.”
17 Plaintiffs request in the Prayer, page 27, paragraph 1, a writ of mandate or an injunction directed to
18 the County to vacate any finally (sic) of the project, to vacate the right to occupy the site, to vacate any
19 permit or authorization of actions or activities violative of the use permit and/or of the county code, and to
20 enjoin any activity in violation thereof, unless and until a review analysis is conducted and requiring any
21 changes in the terms of the use permit requires a properly noticed hearing before the Board of Zoning
22 Adjustment. The second request in the Prayer on page 27 of the Verified Complaint is “A declaration as
23 to the plaintiffs’ rights under the use permit and to have the County’s finaling of and allowing occupancy
24 of the TRVFD project declared violative of the use permit and thus null and void.”
25 These remedies are not available against the County of Sonoma at the time of the filing of the
26 Verified Complaint for Writ of Mandate. The discretionary acts approving and issuing UPE 18-0068, had
27 taken place on or before March 18, 2019. The County complied with the proper procedure under Sonoma
28 Code Section 26-92-040(d), for the County to waive public hearing requirements. Plaintiffs Schmid were
among a number of local residents who were directly informed of the approval of the use permit, advised
County’s Trial Brief
of their right to public hearing if requested, and advised of waiver of public hearing if no request was
made. The Schmid’s received actual notice of their right to a public hearing before the use permit was
approved conditionally on March 18, 2019. Neither the Schmid’s, nor any other neighbors requested a
public hearing.
C. Status of Action
On December 15, 2023, the Honorable Oscar A. Pardo ordered this action bifurcated from the
main action against Two Rock Fire Department and tried first because the issuance of the use permit can
be tried relatively quickly and will streamline the presentation of evidence in the main action dealing with
violations of the use permit alleged against Two Rock Fire Dept.
10 The issues in this court trial involve the application for and issuance of the use permit, and the
11 scope of the issued permit. Plaintiff is seeking injunctive and declaratory relief.
12 D. Additional Lawsuits
13 Plaintiffs Schmid have filed multiple additional lawsuits concerning the same property with mostly
14 the same parties. One action, Case No. SCV-270339, filed against Two Rock Fire Department for alleged
15 intentional and negligent misrepresentation, was consolidated with the existing case set for trial.
16 Plaintiffs have now filed additional, separate lawsuits against two contractors doing work for Two
17 Rock FD. Sonoma Superior Court Case No. SCV-270322 was filed against Thompson Gas on March 4,
18 2022 and is set in Department 19. Superior Court Case No. SCV -270568 was filed by the same Plaintiffs
19 against Air Exchange, Inc. and the County of Sonoma on April 11, 2022, and is also set in Department 19.
20 Plaintiffs also sued the County of Sonoma in United States District Court which action was dismissed by
21 the Court. Plaintiffs have appealed that dismissal to the 9" Circuit Court of Appeals.
22 Plaintiffs also filed an action (Case No. SCV-270771), against the County of Sonoma filed in an
23 attempt to enjoin the decision of the County Board of Supervisors to consider an amended use permit
24 application, on original jurisdiction. A Demurrer to the Second Amended Complaint has been filed in
25 Department 19.
26 The most recent lawsuit filed in the series is against Goldridge Fire Protection District, Sonoma
27 County Local A gency Formation Commission, and the County of Sonoma regarding the Schmids’
28 complaints about the re-structuring of multiple local fire districts. Action 23CV 00801 was filed on
October 2, 2023.
County’s Trial Brief
Plaintiffs also sued the County of Sonoma in United States District Court which action was
dismissed by the Court. Plaintiffs have appealed that dismissal.
II. STATEMENT OF FACTS
On or about August 16, 2018, Two Rock Fire Dept. (“Two Rock FD”) applied for a use permit
with the County of Sonoma, Permit and Resource Management Department (“Permit Sonoma” or
“PRMD”), to build a garage building at 7599 Valley Ford Road and demolish the existing garage building.
(Joint Ex. 1). On or about October 2, 2018, the neighboring property owners including the Schmids were
mailed an introductory letter by Crystal Acker from Permit Sonoma, conceming the Proposed Planning
Application for Use Permit UPE 18-0068 (“Permit” or “UPE 18-0068”). (Joint Ex. 2). The Schmids
10 received that letter which had the correct Assessor’s Parcel Number, but an incorrect street address.
11 Plaintiffs were approached by Paul Martin of Two Rock FD in November 2018 about reducing the
12 setback requirement for the building at 7599 Valley Ford Road, to facilitate the issues of the use permit.
13 Plaintiffs responded in writing on November 25, 2018, that they had no objection to a 5-foot setback for
14 the building. (Joint Ex.4)
15 Licensed civil engineer, Erickson Engineering, prepared plans for Two Rock FD. Erickson
16 Engineering responded to use permit comments from various County agencies in its letter dated
17 2/12/2019. (J oint Ex. 8) The County planner makes a discretionary decision whether public hearings are
18 offered for the issuance of a use permit pursuant to Government Code §65905(a) and Sonoma County
19 Code §26-92-040 (COS Ex. 4).
20 On March 4, 2019, Permit Sonoma posted at the Two Rock Fire Dept. property, a “Notice of
21 Waiver of Public Hearing for a Use Permit”, pursuant to County Code. This Notice provides significant
22 detail about the project and invites anyone who is interested that they could request a hearing.(J oint Ex. 9)
23 On March 5, 2019, the County staff mailed a letter to the local neighbors in the immediate vicinity around
24 the parcel where the garage building would be located. (J oint Ex. 10).
25 The Schmid’s admittedly received the mailed notice in advance of the waiver date indicated on the
26 notice. (Joint Ex. 11) Neither the Schmid’s, nor any other neighbor contacted the County planners about
27 the use permit or its approval.
28 Sonoma County Code 26-92-040(d), in effect at the time of this permit application, provided that a
public hearing can be waived in this fashion, as happened in this case.
County’s Trial Brief
On March 18, 2019, after posting and mailing of the Notice of Waiver was accomplished, a letter
was sent to Emie Nunes, President of Two Rock Fire Department, approving the use permit as described
on the application form, the proposed statement, and the Erickson plans as modified by the Conditions of
Approval. (Joint Ex. 12) Approval of a Use Permit is a “discretionary” process by the Planning Unit of
the County Permit and Resource Management Dept.
Plaintiffs were regularly aware of the construction that commenced in the fall of 2019. Plaintiffs
objected to the addition of fill for the parking lot, to Two Rock FD’s agent on November 26, 2019 (Ex
Plaintiffs raised other issues with Two Rock FD in February 2020: water run-off, gas exhaust vent and
propane tank, water tank with hydrant, grading, and parking lot again.
10 Plaintiff Frear Schmid began contacting Crystal Acker, the County’s project planner, via e-mail in
11 late February 2020, after in person reviewing the records available to the public. Crystal Acker sent e-
12 mails to Frear Schmid on February 26 and 27, 2020, answering various questions. (J oint Ex. 14)
13 From March 16, 2020, until April 15, 2020, this Court did not accept filings of documents or new
14 cases. Plaintiffs lead action against Two Rock Volunteer Fire Dept., Superior Court Case No. SCV-
15 266225, was filed on April 15, 2020, for the perceived wrongs by Two Rock FD. Plaintiffs filed Case No.
16 SCV-266731 against the County of Sonoma onJuly 16, 2020, seeking injunctive and declaratory relief.
17 Til. LEGAL ARGUMENT
18 A. Notice Requirements are Met and Plaintiffs Had Notice of Waiver of Hearing
19 Sonoma County Code Section 26-92-040(d) allows for the County to waive hearing requirements:
20 The planning director may waive the requirement for a public hearing and approve, conditionally
21 approve, or deny use permit applications that meet one or more of the following criteria, provided,
that subsequentto public noticing procedures pursuant to section 26-92-050, no timely, written, and
22 signed requests for public hearing are received. If the application does not meet any of the
following criteria, or if a timely, written, and signed request for public hearing is received, the item
23
shall be noticed for a hearing before the board of zoning adjustments and the board of zoning
24 adjustments may approve, conditionally approve, or deny the application as otherwise provided in
this section:
25 (i) Off-site impacts to adjacent properties would be insignificant because of the location of the site,
26 large parcel sizes in the vicinity, or proposed siting of the use relative to neighboring residences.
(ii) The project either qualifies fora CEQA exemption or Negative Declaration/Mitigated Negative
27 Declaration.
28 (iii) Due to the site's location, the provision of water and wastewater disposal can be accommodated
with no significant impact to the environment or surrounding properties.
County’s Trial Brief
(iv) The project involves a minor expansion on a site that has no active enforcement action.
(v) There is no evidence that the project would be controversial, detrimental to properties or
residents in the vicinity, or contribute incrementally to any significant environmental impact in the
local region.
The County complied with section 26-92-040. No adverse evidence was presented to the County
before the Notice of Waiver; and no request for hearing was made by Plaintiffs until the construction was
almost completed in 2020, although they received the Notice of Waiver of Public Hearing in March 2019.
B. Approval of the Use Permit is Discretionary
The action against the County of Sonoma, regarding the issuance of a use permit by the Permit and
Resource Management Department involves a purely discretionary decision. A simple review at the
10 numerous exhibits attached to the Verified Complaint and to this Motion, shows that an immense amount
11 of discretion was involved in issuance of UPE 18-00068.
12 The Notice of Waiver of Public Hearing, (J oint Ex. 9. 10) contains a summary of some of the
13 steps and decisions taken under the section, “Why”:
14 The Use Permit is being granted because the department has determined that: 1) the project is
consistent with the County’s General Plan and Zoning requirements under Section 26, and 2) off-
15
site impacts to adjacent properties would be insignificant because of the location of the site, large
16 parcel sizes in the vicinity, and proposed siting of the use relative to neighboring residences and
would not be detrimental to the health, safety or general welfare of persons working or residing in
17 the area. It is the determination of the department that the project is categorically exempt from the
18 provisions of the California Environmental Quality Act pursuant to the Provisions of Title 14 of
the California Administrative Code, Section 15302(b) (Replacement or Reconstruction) as a
19 replacement of a commercial structure with a new structure of substantially the same size, purpose,
and capacity. The proposed fire truck garage is larger than the existing garage, but would support a
20 less intense use than the former commercial automotive business, and complies with height and
21 set-back requirements, and therefore, would not result in a substantial increase in purpose or
capacity. The project is also covered by the common sense exemption under Section 15061(b) (3)
22 “Where it can be seen with certainty that there is no possibility that the activity in question may
have a significant effect on the environment, the activity is not subject to CEQA.” No exceptions
23 listed under Section 15300.2 apply. There is no reasonable possibility that the project would have
24 a significant effect on the environment.
There is a more detailed analysis in J oint Exhibit 12, the March 18, 2019 Approval letter. pp. 1-3.
25
The February 12, 2019 letter from Erikson Engineering notes many more conditions that are being
26
addressed for several County agencies. (J oint Ex. 8).
27
There is no evidence that the County abused its discretion in granting the use permit. In fact,
28
Plaintiffs are claiming that the V olunteer Fire Department is exceeding the scope of the Permit. This
County’s Trial Brief
1 || Court should not issue a writ interfering with the discretionary approval of the subject permit, especially
2 || when the writ is requested several years after that discretionary approval.
3 C. CCP 1085 Writ of Mandate Is Not Proper for Relief Sought by Plaintiffs
4 This writ of mandamus is attacking an administrative decision in March 2019. It is brought under
5 Code of Civil Procedure § 1085 or §1094.5.
Section 1085(a) provides:
A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or
person, to compel the performance of an act which the law specially enjoins, as a duty
resulting from an office, trust, or station, or to compel the admission of a party to the use
and enjoyment of a right or office to which the party is entitled, and from which the party is
unlawfully precluded by that inferior tribunal, corporation, board, or person.
10 A writ of mandate under Section 1085 does not apply since the issuance of the use permit is clearly
11 discretionary. In Riggs v. City of Oxnard (1984) 154 Cal. App. 3d 526, plaintiff business owner appealed a
12 judgment that denied him a writ of a writ of mandamus and alternative writ of mandate. Plaintiff's suit
13 sought to require respondent city to issue a criminal citation and to order a civil injunction against the
14 owners of a competing business on grounds that operation of the business violated Oxnard ordinance. The
15 court ruled that such action was enforcement, the means of enforcing the ordinance was within the
16 discretionary power of respondent, and a writ of mandate did not lie to compel that discretion to be
17 exercised in a particular way.
18 The Court in Riggs, 154 Cal.App.3d at 530, held:
19 In the instant case respondent did enforce the zoning ordinance and the means to enforcing that
20 ordinance was within the discretionary power of the respondent. A writ of mandate will not issue
to compel that discretion be exercised in a particular way. (Faulkner v. Cal. Toll Bridge Authority
21 (1953) 40 Cal.2d 317 [253 P.2d 659]; Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d
303 [144 P.2d 4].) Further, it is not the function of the court to challenge the municipality's policy
22 and wisdom. "The function of the courts is to determine whether or not the municipal bodies acted
23 within the limits of their power and discretion.” (Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 361
[203 P.2d 37].)
24
The California Supreme Court has long maintained:
25
It is the general rule that the writ of mandamus may not be employed to compel a public
26 administrative agency possessing discretionary power to act in a particular manner. The court in
27 response to appropriate application may compel such agency to act, but it may not substitute its
discretion for the discretion properly vested in the administrative agency. (16 Cal.Jur. 809, § 28,
28 and cases there cited; 34 Am. Jur. 856, §68, with supporting authority.) In a proceeding of this
character, challenging the propriety of decision of an administrative board, the attitude of the
County’s Trial Brief
courts is well stated in the following language found in the case of Maxwell v. Civil Service
Commission, 169 Cal. 336, 339 [146 P.869]): "Courts should let administrative boards and officers
work out their problems with as little judicial interference as possible. ... Such boards are vested
with a high discretion and its abuse must appear very clearly before the courts will interfere.” Like
expression of this general policy of the courts toward administrative agencies may be found in
[citations].
Lindell Co. v. Board of Permit Appeals (1943) 23 Cal. 2d 303, 315.
D. Evidence Supports Decision to Grant the Use Permit
Code of Civil Procedure § Section 1094.5(a) states:
Where the writ is issued for the purpose of inquiring into the validity of any final
administrative order or decision made as the result of a proceeding in which by law a
hearing is required to be given, evidence is required to be taken, and discretion in the
10 determination of facts is vested in the inferior tribunal, corporation, board, or officer, the
case shall be heard by the court sitting without a jury. All or part of the record of the
11 proceedings before the inferior tribunal, corporation, board, or officer may be filed with the
12 petition, may be filed with respondent’s points and authorities, or may be ordered to be filed
by the court...
13
Review of an administrative order by a court is limited. "'The inquiry of the issuance of a writ of
14
administrative mandamus is whether the agency in question prejudicially abused its discretion; that is,
15
whether the agency action was arbitrary, capricious, in excess of its jurisdiction, entirely lacking in
16 evidentiary support, or without reasonable or rational basis as a matter of law. [Citations.] A prejudicial
17
abuse of discretion is established if the agency has not proceeded in a manner required by law, if its
18
decision is not supported by findings, or if its findings are not supported by substantial evidence in the
19 record."' Carloss v. County of Alameda (2015) 242 Cal.App.4th 116, 132.
20 The permit department planners for UPE-0068 proceeded in a manner authorized by ordinance in
21 posting and mailing notice of waiver of public hearing, the decision to approve the use permit with
22 conditions was clearly supported by the findings and evidence to support the findings.
23 In determining whether the findings are supported, '[w]e may not isolate only the evidence which
24 supports the administrative finding and disregard other relevant evidence in the record. [Citations.] On the
25 other hand, neither we nor the trial court may disregard or overtum the . . . finding "'for the reason that it is
26 considered that a contrary finding would have been equally or more reasonable." [Citations.]' [Citation.]
27 [{] .. . ‘Thus, where reference to the administrative record informs the parties and reviewing courts of the
28 theory upon which an agency has arrived at its ultimate finding and decision it has long been recognized
County’s Trial Brief
that the decision should be upheld if the agency "in truth found those facts which as a matter of law are
essential to sustain its . . . [decision]." [Citations.]' [Citation.] [{] 'In making these determinations, the
reviewing court must resolve reasonable doubts in favor of the administrative findings and decision. 0
Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884-885, 96 Cal. Rptr. 2d 538.
The court presumes that the action is supported by substantial evidence, and Plaintiffs have the
burden to demonstrate otherwise. (McAllister v. California Coastal Com. (2008) 169 Cal.A pp.4th 912,
921-922; Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1212. Only if no reasonable person
could reach the conclusion reached by the administrative agency, based on the entire record before it, will
a court conclude that the agency's findings are not supported by substantial evidence. Do v. Regents of
10 University of California (2013) 216 Cal.App.4th 1474, 1490.
11 To grant the Schmids’ writ, then this Court will need to find that no reasonable planner could have
12 approved the use permit with conditions.
13 E. Plaintiffs Do Not Have Standing to Sue C ounty to Enforce County Ordinances
14 The Verified Complaint clearly is an attempt to somehow mandate the County of Sonoma to
15 construe permit requirements to suit Plaintiffs’ sole personal interests. They claim to have standing as
16 taxpayers, Complaint in SCV-266731; page 2: 12-13. Plaintiffs already are suing Two Rock FD for the
17 alleged violations of County ordinances involved with the construction. In the Complaint, plaintiffs cite
18 various authority, but none of this authority allows this action against the County to achieve the requested
19 relief to declare the use permit void.
20 Government Code §23152 does not describe in any way, a private party pursuing an action against
21 a county for violation of a County ordinance. It is primarily a statute involving penalties for violations of
22 the ordinances. It expressly states that these violations “may” be prosecuted by “county authorities.” The
23 statute itself does not allow in any way, a private party’s action to enforce these provisions against a
24 county. This interpretation is not supported by any case authority cited by Plaintiffs.
25 Further, it is not the function of the court to challenge the municipality's policy and wisdom. "The
26 function of the courts is to determine whether or not the municipal bodies acted within the limits of their
27 power and discretion." Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 361. In Wheeler, the Court of
28 Appeal affirmed judgment for the City Council and a permit applicant where neighboring property owners
filed an action for a declaration that grant of a conditional use permit was unconstitutional. Appellants
County’s Trial Brief
tried a variety of arguments including the planned excavation constituted a nuisance and the ordinance
unlawfully delegated legislative power to the city council. In response to that argument, the Court of
Appeal stated: “[t]he essential requirement of due process is met when the administrative body is required
to determine the existence or nonexistence of the necessary facts before any decision is made. Such a
discretion is not arbitrary or so unguided as to invalidate the statute or ordinance.” 90 Cal. App. 2d 348,
362. The Wheeler Court further noted [citing Gaylord v. City of Pasadena, (1917) 175 Cal. 433, 436] that
due to ever-increasing multiplicity and complexity of administrative affairs, many quasi-legislative and
quasi-judicial functions are entrusted to “departments, boards, commissions, and agents.” 90 Cal. App. 2d
at 362.
10 Itis highly likely that the multiplicity and complexity of administrative affairs has increased since
11 1949. In any event, no case law supports the concept of a private right of action against the public entity
12 under the quasi-criminal Government Code §23152.
13 The case cited by Plaintiffs in the Complaint, Riley v. Hilton Hotels Corp. (2002) 100 Cal. App.
14 4th 599, does not even deal with a similar factual situation. It involved an individual suing a hotel for its
15 failure to comply with an ordinance. The individual did not sue the public entity. Riley does not deal with
16 issuance of a permit, nor does it suggest that a private party can bring an action against a county even for
17 the county’s supposed violation of an ordinance. Nothing in that case or any case, suggests that
18 Government Code §23152 allows a private citizen to sue a county for penalties for a misdemeanor or
19 infraction, let alone for injunctive relief.
20 E. This Action is Barred by the Statute of Limitations
21 The use permit UPE 18-0068 was approved and issued on March 18, 2019. Despite written Notice
22 of Waiver of Public Hearing posted in 4 locations on March 4, 2019, and mailed on March 5, 2019, the
23 Schmid’s did not request a public hearing at any time. Plaintiffs were aware of potential complaints about
24 the Two Rock FD compliance with the permit in at least November 2019.
25 Plaintiffs are claiming the right to bring this action as a writ action in July 2020. They are
26 challenging the issuance of the use permit on March 18, 2019. This writ action is attempting to challenge
27 the “decision” to issue the permit after more than a year passed following approval.
28 Government Code §65009(c )(1)(E) required Plaintiffs to bring this writ action within 90 days
after the issuance of the permit “to attack, review, set aside, void, or annul any decision on the matters
County’s Trial Brief 10
listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any
condition attached to a variance, conditional use permit, or any other permit.” Upon the expiration of the
time limits provided for in this section, all persons are barred from any further action or proceeding. Govt.
Code, § 65009(e). “Matters listed” in sections 65901 and 65903 include “conditional uses or other
permits when the zoning ordinance provides therefor” and “variances from the terms of the zoning
ordinance.” Govt. Code § 65901, subd. (a)
Govt. Code Sections 65901 and 65903 “provide for hearing and decision on, and administrative
appeals concerning, applications for variances, conditional use permits, and other permits.”) Travis v.
County of Santa Cruz (2004) 33 Cal.4th 757, 766, fn. 2. Section 65009, subdivision (c)(1)(E) is to be
10 applied broadly to all types of challenges to permits and permit conditions, as long as the challenge rests
11 on a “decision” of a local authority relating to a permit or seeks to “determine the reasonableness, legality,
12 or validity of any condition attached to a ... conditional use permit, or any other permit.” (Travis, supra, at
13 pp. 766-768.) In short, an action challenging “any decision” by a “legislative body” regarding a variance,
14 a conditional use permit, or other permit provided for by a local zoning ordinance must be filed and served
15 within 90 days of the decision. (Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148,
16 155-156.
17 Even where no public hearing was held, the Court in 1305 Ingraham, LLC v. City of Los Angeles
18 (2019) 32 Cal. App. 5th 1253 held that the 90-day limitations period of section 65009 applied to a City's
19 project permit compliance review — the “decision.” Application of § 65009(c) (1), is not limited to
20 decisions of a legislative body but rather is determined by the underlying decision being reviewed. 1305
21 Ingraham, LLC v. City of Los Angeles (2019)32 Cal. App. 5th 1253, 1264-1265. In 1305 Ingraham, the
22 appellant tried to argue that the longer three-year statute in CCP 338(a) should apply because it was
23 challenging the city's failure to comply with Los Angeles Municipal Code section 16.05.H.1's requirement
24 that “Prior to deciding an appeal, the Area Planning Commission shall hold a hearing or direct a hearing
25 officer to do so.” The Court of Appeal held that the 90 statute of limitations applied in the wnt action
26 since appellant's action is an effort to “attack, review, Set aside, void, or annul” a specific determination.
27 (Section 65009(c) (1) (E)) and/or concerns “any of the proceedings, acts, or determinations taken” in the
28 course of a permit approval (Section 65009(c) (1) (F)). Ingraham 38 Cal.A pp.5th at 1266.
County’s Trial Brief 1
Plaintiffs Schmid in this case are trying to do exactly the same as in Ingraham - set aside acts and
determinations taken in the course of a permit approval.
A public hearing is not always required for the issuance of a project permit. In Stockton Citizens
for Sensible Planning v. City of Stockton (2012) 210 Cal. App. 4th 1484. Plaintiffs contended on appeal
that the City of Stockton’s approval, (a letter issued by the director), did not start the 90-day limitations
period since the statute was limited to permits issued “after a decision by a legislative body. The Court of
Appeal in Stockton Citizens concluded that Government Code§ 65009(c)(1)(E), was not so limited, since
the Director was exercising powers granted by local ordinance when he approved the construction of a
Wal-Mart Supercenter.
10 In Honig v. San Francisco Planning Dept. (2005) 127 Cal. App. 4th 520, the First
A ppellate
11 District of the California Court of Appeal held that Government Code section 65009 applies to a writ
12 petition challenging issuance of a building permit issued in conjunction with a zoning variance. The
13 gravamen of the writ petition was that the variance was improperly granted. Since the appellant failed to
14 comply with the 90-day limitation in section 65009, the petition was not timely.
15 In Honig, Section 65009(c) (1) (E) applied to challenges arising from “matters listed” in Cal. Gov't
16 Code §65903. Although the appeal was from a decision of the department of building inspection, the
17 Court stated it would have been illogical to find that Cal. Gov't Code §65009 did not apply and would
18 have undermined the statutory intent to reduce delays. The attack on the building permit was, in reality, a
19 challenge to the variance, which was approved by the zoning administrator. The court also rejected the
20 neighbor's argument that the board should be estopped from asserting the statute of limitations based on
21 the failure of its order to reference the service requirement.
22 The short limitations period provided by Government Code Section 65009, subdivision (c) serves
23 the important legislative purpose of permitting the rapid resolution of legal challenges to
24 local zoning and planning decisions. Govt. Code § 65009, subd. (a)(2). “The express and manifest intent
25 of section 65009 is to provide local governments with certainty, after a short 90-day period for facial
26 challenges, in the validity of their zoning enactments” and their zoning and planning decisions. (Travis v.
27 County of Santa Cruz, supra, 33 Cal.4th at p. 774). Honig, 127 Cal.App. 4th at 528.
28 I
County’s Trial Brief 12
F. Injunctive Relief is No Longer Available With Reference to the County
"Injunctive relief is a remedy, not a cause of action." Ivanoff v. Bank of America, N.A. (2017) 9
Cal.A pp.5th 719, 734. "Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of
action must exist before injunctive relief may be granted." Shell Oil Co. v. Richter (1942) 52 Cal.App.2d
164, 168.
It has long been held that rights already lost and wrongs already perpetrated cannot be corrected by
injunction, and party aggrieved must seek some other remedy for redress. Flood v. E. L. Goldstein Co.
(1910) 158 Cal 247; Injunction lies only to prevent threatened injury and has no application to wrongs,
which have been completed. Vincent Petroleum Corp. v. Culver City (1941) 43 Cal.App.2d 511, 515.
10 The Vincent court held that an action for an injunction is not a proper remedy by which to review a quasi-
11 judicial action of city council revoking a permit for breach of an ordinance.
12 While Plaintiffs have sought an injunction against certain acts of Two Rock FD that they believe
13 exceed the scope of the Permit, the Court cannot “enjoin” a use permit that has already been issued and
14 approved. The injunctive relief sought in the Verified Complaint is only contained in the Second Cause of
15 Action, 953 for an “injunction to the County to enforce the term and condition of the use permit,” although
16 Plaintiffs place a request for injunction in the Prayer, number 1, combined with a writ of mandate and/or
17 prohibition.
18 Code of Civil Procedure §526, states:
19 (a) An injunction may be granted in the following cases:
(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded,
20 and the relief, or any part thereof, consists in restraining the commission or continuance of the act
complained of, either for a limited period or perpetually.
21
(2) When it appears by the complaint or affidavits that the commission or continuance of
22 some act during the litigation would produce waste, or great or irreparable injury, to a party to the
action.
23 (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or
is about to do, or is procuring or suffering to be done, some act in violation of the rights of another
24
party to the action respecting the subject of the action, and tending to render the judgment
25 ineffectual.
(4) When pecuniary compensation would not afford adequate relief.
26 (5) Where it would be extremely difficult to ascertain the amount of compensation which
27 would afford adequate relief.
(6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.
28 (7) Where the obligation arises from a trust.
County’s Trial Brief 13
The only possible injunction against the County would fall under subsection (2) (3). The
Verified Complaint against the County is devoid of any mention of the elements of subsections (2) (3)
The use permit was approved and issued in March 2019. The planner signed it off in April 2020. There is
nothing about the use permit that is some present action of the County of Sonoma that would produce
“waste, or great or irreparable injury” (§526(a)(2)), or that threatens or is procuring, or suffering to be
done, “some act in violation of plaintiffs’ rights.” Code of Civil Procedure §526(a)(3). Only past actions
of the County are at issue; which cannot be “enjoined.”
F. No Declaratory Relief is Available With Reference to the County
A “Declaratory Relief” action involves some relationship between the parties, which does not exist
10 in this matter. No relationship is alleged, only that Plaintiffs seek a declaration. (COS Ex 1, 9951-52).
11 Two Rock FD took out the use permit. Plaintiffs are neighbors of Two Rock FD. The Schmids
12 did not first address their concems about the permit to the County until February 2020, almost a year after
13 the issue of the public hearing was noticed. They have more than an adequate remedy at law to deal with
14 any injunctive relief or any harm in Superior Court Case No. SCV-266225 against Two Rock FD. They
15 have in fact, sought and obtained that injunctive relief in SCV-266225.
16 A declaratory relief action will not lie to determine a matter, which is or has become moot. Burke
17 v. City etc. of San Francisco (1968) 258 Cal. App. 2d 32. There must be an actual controversy in
18 order for a party to seek declaratory relief. Code Civ. Pro. §060; see also Alameda County Land
19 Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722; 5 Witkin, Cal.Proc. (6 Ed.
20 2021, March 2023 Update), Pleading, section 859. “It must be a real and substantial controversy
21 admitting of specific relief through a decree of a conclusive character, as distinguished from an
22 opinion advising what the law would be upon a hypothetical state of facts.” (Pacific Legal
23 Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171... quoting Aetna Life Ins. Co. v.
24 Haworth (1937) 300 U.S. 227, 240-241....) Alameda County, supra, 38 Cal.App.4th 1722. Code
25 of Civil Procedure §1061 states that “[t]he court may refuse to exercise the power granted by this
26 chapter in any case where its declaration or determination is not necessary or proper at the time
27 under all the circumstances.” See 5 Witkin, Cal.Proc. (6" Ed. 2021, March 2023 Update),
28 Pleading, section 864; 5 Witkin, Cal.Proc. (5 Ed.2008, March 2020 Update) Pleading, sections
849, 866.
County’s Trial Brief 14
Moreover, an action for declaratory relief may not be used as an attack upon an order of an
administrative agency. Escrow Owners Assn., Inc. v. Taft Allen, Inc. (1967) 252 Cal.App.2d 506,510;
Floresta, Inc. v. City Council (1961) 190 Cal.App.2d 599, 611-612. A declaratory relief action is not
appropriate to review an administrative decision. Selby Realty Co. v. City of San Buenaventura (1973) 10
Cal.3d 110, 127.
In the Selby, the California Supreme Court dismissed all causes of action against the County,
including the one for declaratory relief, in a case involving the administrative decision by the County to
deny plaintiff a permit. The Supreme Court also denied the plaintiff the right to seek relief from the city
for its enactment of the general plan which included a street extension across its land.
10 Iv. CONCLUSION
11 At this stage of the administrative process, all the discretionary decisions by the County planners
12 and Director to issue the use permit have long ago been made. Plaintiffs perceive there are violations with
13 the uses allowed, and have sought civil remedies to pursue those perceived violations against the Two
14 Rock Volunteer Fire Dept. The present case against the County of Sonoma has no merit.
15
16 Dated: January 5, 2024 ROBERT H. PITTMAN, Sonoma County Counsel
17
18 By: MichaelA. King
Michael A. King
19 Attomeys for Defendant
County of Sonoma
20
21
22
23
24
25
26
27
28
County’s Trial Brief 15
Preview
ROBERT H. PITTMAN, State Bar No. 172154 County Counsel MICHAEL A. KING, State Bar No. 077014 Deputy County Counsel 575 Administration Drive, Room 105A Santa Rosa, California 95403-2815 Telephone: (707) 565-2421 Facsimile: (707) 565-2624 Attomeys for Defendant COUNTY OF SONOMA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SONOMA 10 FREAR STEPHEN SCHMID AND ASTRID Case No.: SCV-266731 consolidated with 11 SCHMID, SCV-266225 and 12 Plaintiffs COUNTY OF SONOMA TRIAL BRIEF 13 DATE: 1-16-24 14 TIME: 9:00 am. 15 DEPT: 19 COUNTY OF SONOMA, , 16 Complaint filed: Defendant. 7/16/2020 (SCV -266731) 17 18 19 AND CONSOLIDATED ACTIONS 20 21 I INTRODUCTION 22 A. Lawsuit Against County of Sonoma 23 This action arises out of a dispute by Plaintiffs FREAR STEPHEN SCHMID AND ASTRID 24 SCHMID (“SCHMID”) with their neighbors, TWO ROCK VOLUNTEER FIRE DEPARTMENT aka 25 TWO ROCK FIRE DEPARTMENT (“TWO ROCK FD”). Plaintiffs SCHMID originally sued TWO 26 ROCK EFD in Case #SCV-266225, filed on April 15, 2020. The allegations include claims of violations 27 of sections of the Sonoma County Code dealing with zoning, trespass and declaratory relief. 28 County’s Trial Brief The Complaint for Writ of Mandate against the County; SCV-266731, filed on July 16, 2020; alleges facts that are nearly identical to many of the allegations in Case No. SCV-266225 against Two Rock Fire Department. It is clear from this Complaint against the County, that the real dispute is with Two Rock Fire Department. The Verified Complaint for Writ of Mandate and Declaratory and Injunctive Relief for Enforcement of County Ordinances (“Verified Complaint”) against the County in Case No. SCV-266731 (COS Exhibit 201), generally recounts the granting of a use permit by the County to Two Rock Volunteer Fire Dept. for construction of a garage on property located at 7599 Valley Ford Road. Plaintiffs claim that a hearing was required before issuance of the permit, and one was not held. Plaintiffs mostly allege 10 actions taken by Two Rock Volunteer Fire Dept., that they believe exceed the scope of the issued permit, 11 and/or have caused them harm. 12 Plaintiffs’ Verified Complaint against the County sets forth two causes of action: the First Cause of 13 Action is requesting a writ of mandate or injunctive relief under Code of Civil Procedure §1085 and/or 14 §1094.5. Plaintiffs incorporate those sections in the Second Cause of Action, but also request a 15 “declaration that the use permit granted the TRVFD,” is null and void due to lack of notice or hearing 16 constituting a substantive deprivation of “statutory rights” and denial of “due process rights.” 17 Plaintiffs request in the Prayer, page 27, paragraph 1, a writ of mandate or an injunction directed to 18 the County to vacate any finally (sic) of the project, to vacate the right to occupy the site, to vacate any 19 permit or authorization of actions or activities violative of the use permit and/or of the county code, and to 20 enjoin any activity in violation thereof, unless and until a review analysis is conducted and requiring any 21 changes in the terms of the use permit requires a properly noticed hearing before the Board of Zoning 22 Adjustment. The second request in the Prayer on page 27 of the Verified Complaint is “A declaration as 23 to the plaintiffs’ rights under the use permit and to have the County’s finaling of and allowing occupancy 24 of the TRVFD project declared violative of the use permit and thus null and void.” 25 These remedies are not available against the County of Sonoma at the time of the filing of the 26 Verified Complaint for Writ of Mandate. The discretionary acts approving and issuing UPE 18-0068, had 27 taken place on or before March 18, 2019. The County complied with the proper procedure under Sonoma 28 Code Section 26-92-040(d), for the County to waive public hearing requirements. Plaintiffs Schmid were among a number of local residents who were directly informed of the approval of the use permit, advised County’s Trial Brief of their right to public hearing if requested, and advised of waiver of public hearing if no request was made. The Schmid’s received actual notice of their right to a public hearing before the use permit was approved conditionally on March 18, 2019. Neither the Schmid’s, nor any other neighbors requested a public hearing. C. Status of Action On December 15, 2023, the Honorable Oscar A. Pardo ordered this action bifurcated from the main action against Two Rock Fire Department and tried first because the issuance of the use permit can be tried relatively quickly and will streamline the presentation of evidence in the main action dealing with violations of the use permit alleged against Two Rock Fire Dept. 10 The issues in this court trial involve the application for and issuance of the use permit, and the 11 scope of the issued permit. Plaintiff is seeking injunctive and declaratory relief. 12 D. Additional Lawsuits 13 Plaintiffs Schmid have filed multiple additional lawsuits concerning the same property with mostly 14 the same parties. One action, Case No. SCV-270339, filed against Two Rock Fire Department for alleged 15 intentional and negligent misrepresentation, was consolidated with the existing case set for trial. 16 Plaintiffs have now filed additional, separate lawsuits against two contractors doing work for Two 17 Rock FD. Sonoma Superior Court Case No. SCV-270322 was filed against Thompson Gas on March 4, 18 2022 and is set in Department 19. Superior Court Case No. SCV -270568 was filed by the same Plaintiffs 19 against Air Exchange, Inc. and the County of Sonoma on April 11, 2022, and is also set in Department 19. 20 Plaintiffs also sued the County of Sonoma in United States District Court which action was dismissed by 21 the Court. Plaintiffs have appealed that dismissal to the 9" Circuit Court of Appeals. 22 Plaintiffs also filed an action (Case No. SCV-270771), against the County of Sonoma filed in an 23 attempt to enjoin the decision of the County Board of Supervisors to consider an amended use permit 24 application, on original jurisdiction. A Demurrer to the Second Amended Complaint has been filed in 25 Department 19. 26 The most recent lawsuit filed in the series is against Goldridge Fire Protection District, Sonoma 27 County Local A gency Formation Commission, and the County of Sonoma regarding the Schmids’ 28 complaints about the re-structuring of multiple local fire districts. Action 23CV 00801 was filed on October 2, 2023. County’s Trial Brief Plaintiffs also sued the County of Sonoma in United States District Court which action was dismissed by the Court. Plaintiffs have appealed that dismissal. II. STATEMENT OF FACTS On or about August 16, 2018, Two Rock Fire Dept. (“Two Rock FD”) applied for a use permit with the County of Sonoma, Permit and Resource Management Department (“Permit Sonoma” or “PRMD”), to build a garage building at 7599 Valley Ford Road and demolish the existing garage building. (Joint Ex. 1). On or about October 2, 2018, the neighboring property owners including the Schmids were mailed an introductory letter by Crystal Acker from Permit Sonoma, conceming the Proposed Planning Application for Use Permit UPE 18-0068 (“Permit” or “UPE 18-0068”). (Joint Ex. 2). The Schmids 10 received that letter which had the correct Assessor’s Parcel Number, but an incorrect street address. 11 Plaintiffs were approached by Paul Martin of Two Rock FD in November 2018 about reducing the 12 setback requirement for the building at 7599 Valley Ford Road, to facilitate the issues of the use permit. 13 Plaintiffs responded in writing on November 25, 2018, that they had no objection to a 5-foot setback for 14 the building. (Joint Ex.4) 15 Licensed civil engineer, Erickson Engineering, prepared plans for Two Rock FD. Erickson 16 Engineering responded to use permit comments from various County agencies in its letter dated 17 2/12/2019. (J oint Ex. 8) The County planner makes a discretionary decision whether public hearings are 18 offered for the issuance of a use permit pursuant to Government Code §65905(a) and Sonoma County 19 Code §26-92-040 (COS Ex. 4). 20 On March 4, 2019, Permit Sonoma posted at the Two Rock Fire Dept. property, a “Notice of 21 Waiver of Public Hearing for a Use Permit”, pursuant to County Code. This Notice provides significant 22 detail about the project and invites anyone who is interested that they could request a hearing.(J oint Ex. 9) 23 On March 5, 2019, the County staff mailed a letter to the local neighbors in the immediate vicinity around 24 the parcel where the garage building would be located. (J oint Ex. 10). 25 The Schmid’s admittedly received the mailed notice in advance of the waiver date indicated on the 26 notice. (Joint Ex. 11) Neither the Schmid’s, nor any other neighbor contacted the County planners about 27 the use permit or its approval. 28 Sonoma County Code 26-92-040(d), in effect at the time of this permit application, provided that a public hearing can be waived in this fashion, as happened in this case. County’s Trial Brief On March 18, 2019, after posting and mailing of the Notice of Waiver was accomplished, a letter was sent to Emie Nunes, President of Two Rock Fire Department, approving the use permit as described on the application form, the proposed statement, and the Erickson plans as modified by the Conditions of Approval. (Joint Ex. 12) Approval of a Use Permit is a “discretionary” process by the Planning Unit of the County Permit and Resource Management Dept. Plaintiffs were regularly aware of the construction that commenced in the fall of 2019. Plaintiffs objected to the addition of fill for the parking lot, to Two Rock FD’s agent on November 26, 2019 (Ex Plaintiffs raised other issues with Two Rock FD in February 2020: water run-off, gas exhaust vent and propane tank, water tank with hydrant, grading, and parking lot again. 10 Plaintiff Frear Schmid began contacting Crystal Acker, the County’s project planner, via e-mail in 11 late February 2020, after in person reviewing the records available to the public. Crystal Acker sent e- 12 mails to Frear Schmid on February 26 and 27, 2020, answering various questions. (J oint Ex. 14) 13 From March 16, 2020, until April 15, 2020, this Court did not accept filings of documents or new 14 cases. Plaintiffs lead action against Two Rock Volunteer Fire Dept., Superior Court Case No. SCV- 15 266225, was filed on April 15, 2020, for the perceived wrongs by Two Rock FD. Plaintiffs filed Case No. 16 SCV-266731 against the County of Sonoma onJuly 16, 2020, seeking injunctive and declaratory relief. 17 Til. LEGAL ARGUMENT 18 A. Notice Requirements are Met and Plaintiffs Had Notice of Waiver of Hearing 19 Sonoma County Code Section 26-92-040(d) allows for the County to waive hearing requirements: 20 The planning director may waive the requirement for a public hearing and approve, conditionally 21 approve, or deny use permit applications that meet one or more of the following criteria, provided, that subsequentto public noticing procedures pursuant to section 26-92-050, no timely, written, and 22 signed requests for public hearing are received. If the application does not meet any of the following criteria, or if a timely, written, and signed request for public hearing is received, the item 23 shall be noticed for a hearing before the board of zoning adjustments and the board of zoning 24 adjustments may approve, conditionally approve, or deny the application as otherwise provided in this section: 25 (i) Off-site impacts to adjacent properties would be insignificant because of the location of the site, 26 large parcel sizes in the vicinity, or proposed siting of the use relative to neighboring residences. (ii) The project either qualifies fora CEQA exemption or Negative Declaration/Mitigated Negative 27 Declaration. 28 (iii) Due to the site's location, the provision of water and wastewater disposal can be accommodated with no significant impact to the environment or surrounding properties. County’s Trial Brief (iv) The project involves a minor expansion on a site that has no active enforcement action. (v) There is no evidence that the project would be controversial, detrimental to properties or residents in the vicinity, or contribute incrementally to any significant environmental impact in the local region. The County complied with section 26-92-040. No adverse evidence was presented to the County before the Notice of Waiver; and no request for hearing was made by Plaintiffs until the construction was almost completed in 2020, although they received the Notice of Waiver of Public Hearing in March 2019. B. Approval of the Use Permit is Discretionary The action against the County of Sonoma, regarding the issuance of a use permit by the Permit and Resource Management Department involves a purely discretionary decision. A simple review at the 10 numerous exhibits attached to the Verified Complaint and to this Motion, shows that an immense amount 11 of discretion was involved in issuance of UPE 18-00068. 12 The Notice of Waiver of Public Hearing, (J oint Ex. 9. 10) contains a summary of some of the 13 steps and decisions taken under the section, “Why”: 14 The Use Permit is being granted because the department has determined that: 1) the project is consistent with the County’s General Plan and Zoning requirements under Section 26, and 2) off- 15 site impacts to adjacent properties would be insignificant because of the location of the site, large 16 parcel sizes in the vicinity, and proposed siting of the use relative to neighboring residences and would not be detrimental to the health, safety or general welfare of persons working or residing in 17 the area. It is the determination of the department that the project is categorically exempt from the 18 provisions of the California Environmental Quality Act pursuant to the Provisions of Title 14 of the California Administrative Code, Section 15302(b) (Replacement or Reconstruction) as a 19 replacement of a commercial structure with a new structure of substantially the same size, purpose, and capacity. The proposed fire truck garage is larger than the existing garage, but would support a 20 less intense use than the former commercial automotive business, and complies with height and 21 set-back requirements, and therefore, would not result in a substantial increase in purpose or capacity. The project is also covered by the common sense exemption under Section 15061(b) (3) 22 “Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.” No exceptions 23 listed under Section 15300.2 apply. There is no reasonable possibility that the project would have 24 a significant effect on the environment. There is a more detailed analysis in J oint Exhibit 12, the March 18, 2019 Approval letter. pp. 1-3. 25 The February 12, 2019 letter from Erikson Engineering notes many more conditions that are being 26 addressed for several County agencies. (J oint Ex. 8). 27 There is no evidence that the County abused its discretion in granting the use permit. In fact, 28 Plaintiffs are claiming that the V olunteer Fire Department is exceeding the scope of the Permit. This County’s Trial Brief 1 || Court should not issue a writ interfering with the discretionary approval of the subject permit, especially 2 || when the writ is requested several years after that discretionary approval. 3 C. CCP 1085 Writ of Mandate Is Not Proper for Relief Sought by Plaintiffs 4 This writ of mandamus is attacking an administrative decision in March 2019. It is brought under 5 Code of Civil Procedure § 1085 or §1094.5. Section 1085(a) provides: A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person. 10 A writ of mandate under Section 1085 does not apply since the issuance of the use permit is clearly 11 discretionary. In Riggs v. City of Oxnard (1984) 154 Cal. App. 3d 526, plaintiff business owner appealed a 12 judgment that denied him a writ of a writ of mandamus and alternative writ of mandate. Plaintiff's suit 13 sought to require respondent city to issue a criminal citation and to order a civil injunction against the 14 owners of a competing business on grounds that operation of the business violated Oxnard ordinance. The 15 court ruled that such action was enforcement, the means of enforcing the ordinance was within the 16 discretionary power of respondent, and a writ of mandate did not lie to compel that discretion to be 17 exercised in a particular way. 18 The Court in Riggs, 154 Cal.App.3d at 530, held: 19 In the instant case respondent did enforce the zoning ordinance and the means to enforcing that 20 ordinance was within the discretionary power of the respondent. A writ of mandate will not issue to compel that discretion be exercised in a particular way. (Faulkner v. Cal. Toll Bridge Authority 21 (1953) 40 Cal.2d 317 [253 P.2d 659]; Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303 [144 P.2d 4].) Further, it is not the function of the court to challenge the municipality's policy 22 and wisdom. "The function of the courts is to determine whether or not the municipal bodies acted 23 within the limits of their power and discretion.” (Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 361 [203 P.2d 37].) 24 The California Supreme Court has long maintained: 25 It is the general rule that the writ of mandamus may not be employed to compel a public 26 administrative agency possessing discretionary power to act in a particular manner. The court in 27 response to appropriate application may compel such agency to act, but it may not substitute its discretion for the discretion properly vested in the administrative agency. (16 Cal.Jur. 809, § 28, 28 and cases there cited; 34 Am. Jur. 856, §68, with supporting authority.) In a proceeding of this character, challenging the propriety of decision of an administrative board, the attitude of the County’s Trial Brief courts is well stated in the following language found in the case of Maxwell v. Civil Service Commission, 169 Cal. 336, 339 [146 P.869]): "Courts should let administrative boards and officers work out their problems with as little judicial interference as possible. ... Such boards are vested with a high discretion and its abuse must appear very clearly before the courts will interfere.” Like expression of this general policy of the courts toward administrative agencies may be found in [citations]. Lindell Co. v. Board of Permit Appeals (1943) 23 Cal. 2d 303, 315. D. Evidence Supports Decision to Grant the Use Permit Code of Civil Procedure § Section 1094.5(a) states: Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the 10 determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the 11 proceedings before the inferior tribunal, corporation, board, or officer may be filed with the 12 petition, may be filed with respondent’s points and authorities, or may be ordered to be filed by the court... 13 Review of an administrative order by a court is limited. "'The inquiry of the issuance of a writ of 14 administrative mandamus is whether the agency in question prejudicially abused its discretion; that is, 15 whether the agency action was arbitrary, capricious, in excess of its jurisdiction, entirely lacking in 16 evidentiary support, or without reasonable or rational basis as a matter of law. [Citations.] A prejudicial 17 abuse of discretion is established if the agency has not proceeded in a manner required by law, if its 18 decision is not supported by findings, or if its findings are not supported by substantial evidence in the 19 record."' Carloss v. County of Alameda (2015) 242 Cal.App.4th 116, 132. 20 The permit department planners for UPE-0068 proceeded in a manner authorized by ordinance in 21 posting and mailing notice of waiver of public hearing, the decision to approve the use permit with 22 conditions was clearly supported by the findings and evidence to support the findings. 23 In determining whether the findings are supported, '[w]e may not isolate only the evidence which 24 supports the administrative finding and disregard other relevant evidence in the record. [Citations.] On the 25 other hand, neither we nor the trial court may disregard or overtum the . . . finding "'for the reason that it is 26 considered that a contrary finding would have been equally or more reasonable." [Citations.]' [Citation.] 27 [{] .. . ‘Thus, where reference to the administrative record informs the parties and reviewing courts of the 28 theory upon which an agency has arrived at its ultimate finding and decision it has long been recognized County’s Trial Brief that the decision should be upheld if the agency "in truth found those facts which as a matter of law are essential to sustain its . . . [decision]." [Citations.]' [Citation.] [{] 'In making these determinations, the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision. 0 Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884-885, 96 Cal. Rptr. 2d 538. The court presumes that the action is supported by substantial evidence, and Plaintiffs have the burden to demonstrate otherwise. (McAllister v. California Coastal Com. (2008) 169 Cal.A pp.4th 912, 921-922; Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1212. Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency's findings are not supported by substantial evidence. Do v. Regents of 10 University of California (2013) 216 Cal.App.4th 1474, 1490. 11 To grant the Schmids’ writ, then this Court will need to find that no reasonable planner could have 12 approved the use permit with conditions. 13 E. Plaintiffs Do Not Have Standing to Sue C ounty to Enforce County Ordinances 14 The Verified Complaint clearly is an attempt to somehow mandate the County of Sonoma to 15 construe permit requirements to suit Plaintiffs’ sole personal interests. They claim to have standing as 16 taxpayers, Complaint in SCV-266731; page 2: 12-13. Plaintiffs already are suing Two Rock FD for the 17 alleged violations of County ordinances involved with the construction. In the Complaint, plaintiffs cite 18 various authority, but none of this authority allows this action against the County to achieve the requested 19 relief to declare the use permit void. 20 Government Code §23152 does not describe in any way, a private party pursuing an action against 21 a county for violation of a County ordinance. It is primarily a statute involving penalties for violations of 22 the ordinances. It expressly states that these violations “may” be prosecuted by “county authorities.” The 23 statute itself does not allow in any way, a private party’s action to enforce these provisions against a 24 county. This interpretation is not supported by any case authority cited by Plaintiffs. 25 Further, it is not the function of the court to challenge the municipality's policy and wisdom. "The 26 function of the courts is to determine whether or not the municipal bodies acted within the limits of their 27 power and discretion." Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 361. In Wheeler, the Court of 28 Appeal affirmed judgment for the City Council and a permit applicant where neighboring property owners filed an action for a declaration that grant of a conditional use permit was unconstitutional. Appellants County’s Trial Brief tried a variety of arguments including the planned excavation constituted a nuisance and the ordinance unlawfully delegated legislative power to the city council. In response to that argument, the Court of Appeal stated: “[t]he essential requirement of due process is met when the administrative body is required to determine the existence or nonexistence of the necessary facts before any decision is made. Such a discretion is not arbitrary or so unguided as to invalidate the statute or ordinance.” 90 Cal. App. 2d 348, 362. The Wheeler Court further noted [citing Gaylord v. City of Pasadena, (1917) 175 Cal. 433, 436] that due to ever-increasing multiplicity and complexity of administrative affairs, many quasi-legislative and quasi-judicial functions are entrusted to “departments, boards, commissions, and agents.” 90 Cal. App. 2d at 362. 10 Itis highly likely that the multiplicity and complexity of administrative affairs has increased since 11 1949. In any event, no case law supports the concept of a private right of action against the public entity 12 under the quasi-criminal Government Code §23152. 13 The case cited by Plaintiffs in the Complaint, Riley v. Hilton Hotels Corp. (2002) 100 Cal. App. 14 4th 599, does not even deal with a similar factual situation. It involved an individual suing a hotel for its 15 failure to comply with an ordinance. The individual did not sue the public entity. Riley does not deal with 16 issuance of a permit, nor does it suggest that a private party can bring an action against a county even for 17 the county’s supposed violation of an ordinance. Nothing in that case or any case, suggests that 18 Government Code §23152 allows a private citizen to sue a county for penalties for a misdemeanor or 19 infraction, let alone for injunctive relief. 20 E. This Action is Barred by the Statute of Limitations 21 The use permit UPE 18-0068 was approved and issued on March 18, 2019. Despite written Notice 22 of Waiver of Public Hearing posted in 4 locations on March 4, 2019, and mailed on March 5, 2019, the 23 Schmid’s did not request a public hearing at any time. Plaintiffs were aware of potential complaints about 24 the Two Rock FD compliance with the permit in at least November 2019. 25 Plaintiffs are claiming the right to bring this action as a writ action in July 2020. They are 26 challenging the issuance of the use permit on March 18, 2019. This writ action is attempting to challenge 27 the “decision” to issue the permit after more than a year passed following approval. 28 Government Code §65009(c )(1)(E) required Plaintiffs to bring this writ action within 90 days after the issuance of the permit “to attack, review, set aside, void, or annul any decision on the matters County’s Trial Brief 10 listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.” Upon the expiration of the time limits provided for in this section, all persons are barred from any further action or proceeding. Govt. Code, § 65009(e). “Matters listed” in sections 65901 and 65903 include “conditional uses or other permits when the zoning ordinance provides therefor” and “variances from the terms of the zoning ordinance.” Govt. Code § 65901, subd. (a) Govt. Code Sections 65901 and 65903 “provide for hearing and decision on, and administrative appeals concerning, applications for variances, conditional use permits, and other permits.”) Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 766, fn. 2. Section 65009, subdivision (c)(1)(E) is to be 10 applied broadly to all types of challenges to permits and permit conditions, as long as the challenge rests 11 on a “decision” of a local authority relating to a permit or seeks to “determine the reasonableness, legality, 12 or validity of any condition attached to a ... conditional use permit, or any other permit.” (Travis, supra, at 13 pp. 766-768.) In short, an action challenging “any decision” by a “legislative body” regarding a variance, 14 a conditional use permit, or other permit provided for by a local zoning ordinance must be filed and served 15 within 90 days of the decision. (Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 16 155-156. 17 Even where no public hearing was held, the Court in 1305 Ingraham, LLC v. City of Los Angeles 18 (2019) 32 Cal. App. 5th 1253 held that the 90-day limitations period of section 65009 applied to a City's 19 project permit compliance review — the “decision.” Application of § 65009(c) (1), is not limited to 20 decisions of a legislative body but rather is determined by the underlying decision being reviewed. 1305 21 Ingraham, LLC v. City of Los Angeles (2019)32 Cal. App. 5th 1253, 1264-1265. In 1305 Ingraham, the 22 appellant tried to argue that the longer three-year statute in CCP 338(a) should apply because it was 23 challenging the city's failure to comply with Los Angeles Municipal Code section 16.05.H.1's requirement 24 that “Prior to deciding an appeal, the Area Planning Commission shall hold a hearing or direct a hearing 25 officer to do so.” The Court of Appeal held that the 90 statute of limitations applied in the wnt action 26 since appellant's action is an effort to “attack, review, Set aside, void, or annul” a specific determination. 27 (Section 65009(c) (1) (E)) and/or concerns “any of the proceedings, acts, or determinations taken” in the 28 course of a permit approval (Section 65009(c) (1) (F)). Ingraham 38 Cal.A pp.5th at 1266. County’s Trial Brief 1 Plaintiffs Schmid in this case are trying to do exactly the same as in Ingraham - set aside acts and determinations taken in the course of a permit approval. A public hearing is not always required for the issuance of a project permit. In Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal. App. 4th 1484. Plaintiffs contended on appeal that the City of Stockton’s approval, (a letter issued by the director), did not start the 90-day limitations period since the statute was limited to permits issued “after a decision by a legislative body. The Court of Appeal in Stockton Citizens concluded that Government Code§ 65009(c)(1)(E), was not so limited, since the Director was exercising powers granted by local ordinance when he approved the construction of a Wal-Mart Supercenter. 10 In Honig v. San Francisco Planning Dept. (2005) 127 Cal. App. 4th 520, the First A ppellate 11 District of the California Court of Appeal held that Government Code section 65009 applies to a writ 12 petition challenging issuance of a building permit issued in conjunction with a zoning variance. The 13 gravamen of the writ petition was that the variance was improperly granted. Since the appellant failed to 14 comply with the 90-day limitation in section 65009, the petition was not timely. 15 In Honig, Section 65009(c) (1) (E) applied to challenges arising from “matters listed” in Cal. Gov't 16 Code §65903. Although the appeal was from a decision of the department of building inspection, the 17 Court stated it would have been illogical to find that Cal. Gov't Code §65009 did not apply and would 18 have undermined the statutory intent to reduce delays. The attack on the building permit was, in reality, a 19 challenge to the variance, which was approved by the zoning administrator. The court also rejected the 20 neighbor's argument that the board should be estopped from asserting the statute of limitations based on 21 the failure of its order to reference the service requirement. 22 The short limitations period provided by Government Code Section 65009, subdivision (c) serves 23 the important legislative purpose of permitting the rapid resolution of legal challenges to 24 local zoning and planning decisions. Govt. Code § 65009, subd. (a)(2). “The express and manifest intent 25 of section 65009 is to provide local governments with certainty, after a short 90-day period for facial 26 challenges, in the validity of their zoning enactments” and their zoning and planning decisions. (Travis v. 27 County of Santa Cruz, supra, 33 Cal.4th at p. 774). Honig, 127 Cal.App. 4th at 528. 28 I County’s Trial Brief 12 F. Injunctive Relief is No Longer Available With Reference to the County "Injunctive relief is a remedy, not a cause of action." Ivanoff v. Bank of America, N.A. (2017) 9 Cal.A pp.5th 719, 734. "Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted." Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168. It has long been held that rights already lost and wrongs already perpetrated cannot be corrected by injunction, and party aggrieved must seek some other remedy for redress. Flood v. E. L. Goldstein Co. (1910) 158 Cal 247; Injunction lies only to prevent threatened injury and has no application to wrongs, which have been completed. Vincent Petroleum Corp. v. Culver City (1941) 43 Cal.App.2d 511, 515. 10 The Vincent court held that an action for an injunction is not a proper remedy by which to review a quasi- 11 judicial action of city council revoking a permit for breach of an ordinance. 12 While Plaintiffs have sought an injunction against certain acts of Two Rock FD that they believe 13 exceed the scope of the Permit, the Court cannot “enjoin” a use permit that has already been issued and 14 approved. The injunctive relief sought in the Verified Complaint is only contained in the Second Cause of 15 Action, 953 for an “injunction to the County to enforce the term and condition of the use permit,” although 16 Plaintiffs place a request for injunction in the Prayer, number 1, combined with a writ of mandate and/or 17 prohibition. 18 Code of Civil Procedure §526, states: 19 (a) An injunction may be granted in the following cases: (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, 20 and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. 21 (2) When it appears by the complaint or affidavits that the commission or continuance of 22 some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. 23 (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another 24 party to the action respecting the subject of the action, and tending to render the judgment 25 ineffectual. (4) When pecuniary compensation would not afford adequate relief. 26 (5) Where it would be extremely difficult to ascertain the amount of compensation which 27 would afford adequate relief. (6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings. 28 (7) Where the obligation arises from a trust. County’s Trial Brief 13 The only possible injunction against the County would fall under subsection (2) (3). The Verified Complaint against the County is devoid of any mention of the elements of subsections (2) (3) The use permit was approved and issued in March 2019. The planner signed it off in April 2020. There is nothing about the use permit that is some present action of the County of Sonoma that would produce “waste, or great or irreparable injury” (§526(a)(2)), or that threatens or is procuring, or suffering to be done, “some act in violation of plaintiffs’ rights.” Code of Civil Procedure §526(a)(3). Only past actions of the County are at issue; which cannot be “enjoined.” F. No Declaratory Relief is Available With Reference to the County A “Declaratory Relief” action involves some relationship between the parties, which does not exist 10 in this matter. No relationship is alleged, only that Plaintiffs seek a declaration. (COS Ex 1, 9951-52). 11 Two Rock FD took out the use permit. Plaintiffs are neighbors of Two Rock FD. The Schmids 12 did not first address their concems about the permit to the County until February 2020, almost a year after 13 the issue of the public hearing was noticed. They have more than an adequate remedy at law to deal with 14 any injunctive relief or any harm in Superior Court Case No. SCV-266225 against Two Rock FD. They 15 have in fact, sought and obtained that injunctive relief in SCV-266225. 16 A declaratory relief action will not lie to determine a matter, which is or has become moot. Burke 17 v. City etc. of San Francisco (1968) 258 Cal. App. 2d 32. There must be an actual controversy in 18 order for a party to seek declaratory relief. Code Civ. Pro. §060; see also Alameda County Land 19 Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722; 5 Witkin, Cal.Proc. (6 Ed. 20 2021, March 2023 Update), Pleading, section 859. “It must be a real and substantial controversy 21 admitting of specific relief through a decree of a conclusive character, as distinguished from an 22 opinion advising what the law would be upon a hypothetical state of facts.” (Pacific Legal 23 Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171... quoting Aetna Life Ins. Co. v. 24 Haworth (1937) 300 U.S. 227, 240-241....) Alameda County, supra, 38 Cal.App.4th 1722. Code 25 of Civil Procedure §1061 states that “[t]he court may refuse to exercise the power granted by this 26 chapter in any case where its declaration or determination is not necessary or proper at the time 27 under all the circumstances.” See 5 Witkin, Cal.Proc. (6" Ed. 2021, March 2023 Update), 28 Pleading, section 864; 5 Witkin, Cal.Proc. (5 Ed.2008, March 2020 Update) Pleading, sections 849, 866. County’s Trial Brief 14 Moreover, an action for declaratory relief may not be used as an attack upon an order of an administrative agency. Escrow Owners Assn., Inc. v. Taft Allen, Inc. (1967) 252 Cal.App.2d 506,510; Floresta, Inc. v. City Council (1961) 190 Cal.App.2d 599, 611-612. A declaratory relief action is not appropriate to review an administrative decision. Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 127. In the Selby, the California Supreme Court dismissed all causes of action against the County, including the one for declaratory relief, in a case involving the administrative decision by the County to deny plaintiff a permit. The Supreme Court also denied the plaintiff the right to seek relief from the city for its enactment of the general plan which included a street extension across its land. 10 Iv. CONCLUSION 11 At this stage of the administrative process, all the discretionary decisions by the County planners 12 and Director to issue the use permit have long ago been made. Plaintiffs perceive there are violations with 13 the uses allowed, and have sought civil remedies to pursue those perceived violations against the Two 14 Rock Volunteer Fire Dept. The present case against the County of Sonoma has no merit. 15 16 Dated: January 5, 2024 ROBERT H. PITTMAN, Sonoma County Counsel 17 18 By: MichaelA. King Michael A. King 19 Attomeys for Defendant County of Sonoma 20 21 22 23 24 25 26 27 28 County’s Trial Brief 15