CEQA Lawsuit Dismissed On Mootness Grounds Because Project Was "Up and Running"

Parkford Owners for a Better Community v. County of Placer, Case No. C087824 (August 26, 2020)

Environmental/Land Use Alert (October 1, 2020)

A recent California Court of Appeal opinion (Third Appellate District) addresses when lawsuits challenging development projects will be rendered “moot” by the construction of the project being challenged. (Parkford Owners for a Better Community v. County of Placer (Aug. 26, 2020, No. C087824) __ Cal.App.5th __ [2020 Cal. App. LEXIS 872].) Mootness is the principle that courts will decide only actual controversies, by issuing judgments which can be carried into effect. If an event occurs which renders it impossible for the court to grant the plaintiff any effectual relief, the court should dismiss the case as moot.

Parkford involved alleged violations of the California Environmental Quality Act (CEQA) and Planning and Zoning Law, due to the approval of a building permit for the expansion of a self-storage facility. The storage facility was originally approved as part of planned unit development in Granite Bay, California. The storage facility was constructed in 1999; and, in 2001 and 2004, Placer County (County) approved two additional phases of construction to expand the storage facility. In October 2016, the County approved the building permit challenged in the Parkford case, which authorized further expansion of the storage facility with a 28,240-square-foot building and associated utilities. The Parkford lawsuit was filed in February 2017, approximately four months after construction of the expansion began. The plaintiff sought a writ requiring the County to set aside the building permit and to suspend all construction/development until an EIR was prepared.

Filing a CEQA action does not automatically stay operation of the challenged agency decision. (See Pub. Resources Code, §21167.3; 14 Cal. Code Regs., §15233.) Accordingly, the Parkford plaintiff requested a temporary restraining order (TRO) and preliminary injunction to halt construction pending a final decision in the lawsuit. Courts evaluate two interrelated factors in deciding whether to grant such interim relief: (i) plaintiff’s likelihood of prevailing on the merits at trial; and (ii) the interim harm that will occur if the preliminary relief is denied as compared to the harm that the defendant would likely suffer if the preliminary relief is issued. In Parkford, the trial court denied the interim relief, finding that the plaintiff established neither a likelihood of prevailing on the merits nor that the balance of interim harm favored issuance of preliminary injunctive relief. As to interim harm, the court found that the “timing of construction is essential when considering this factor,” and noted that the storage facility was near completion by the time plaintiff brought the request for interim relief. As such, any harm asserted by plaintiff was significantly diminished. Accordingly, construction was allowed to proceed, and the project was completed in October 2017. Subsequently, the writ petition proceeded to a hearing on the merits, and the trial court issued judgment against the plaintiff.

The Court of Appeal in Parkford found that completion of the storage facility expansion rendered moot plaintiff’s challenge to the building permit. In doing so, Parkford discussed some of the cases that have applied the mootness rule to CEQA challenges. Parkford shows that courts apply the following considerations in determining whether CEQA actions will be subject to dismissal as moot:

First, courts have long held that completion of a project moots an action seeking to require preparation of an EIR, as well as requests to set aside or rescind resolutions authorizing the project. (Parkford, supra, __Cal.App.5th __ [2020 Cal. App. LEXIS 872, at *16] [citing Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1575-1576].) Parkford cites Hixon v. County of Los Angeles, which involved a lawsuit seeking to compel an EIR for a street improvement project involving removal and replacement of roadside trees. (Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 377.) The Hixon trial court declined to require preparation of an EIR because the trees had already been removed and replaced and “no public benefit would be gained by requiring an EIR.” The Hixon court of appeal agreed, explaining: “The project is ended, the trees are cut down and the subject is now moot insofar as resort to a planning or informational document, which is what an EIR is.” (Ibid.) Thus, in general, if nothing can be accomplished by proceeding with the action, courts will dismiss the action as moot.

Importantly, however, courts will find that CEQA cases are not rendered moot where construction of the challenged project proceeds despite a court order. (See Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 890 [completing construction while case was pending on appeal, despite trial court order for preparation of an EIR, did not moot the CEQA action].) In such a circumstance, courts will find that the case is not moot because courts can still order effective relief, such as modification of the project to mitigate adverse impacts or even removal of the project altogether. In fact, as Parkford notes, there is an exception to the mootness doctrine for “important issues of broad public interest that are likely to reoccur.” Accordingly, courts will not deem a lawsuit moot if there is an “unseemly race” to complete project construction in an attempt to evade CEQA judicial review. In Parkford, the court found that nothing in the record indicated that the expansion project was completed in bad faith or in an attempt to evade the requirements of CEQA or the Planning and Zoning law. Instead, the developer reasonably relied on the 2016 building permit, and prior project approvals, to construct the storage facility’s third expansion.

Parkford also shows that if a plaintiff fails to seek a timely stay of the project’s construction, courts will deem the plaintiff “partly responsible” for failing to preserve their claims and dismiss the case as moot. The Parkford court found that the plaintiff failed to take steps to maintain the status quo pending resolution of its claims by not seeking injunctive relief or a stay until the project was nearly complete. Based on these facts, the Parkford court found that completion of the project rendered the plaintiff’s challenge moot.

In short, Parkford shows that if an action is brought challenging a development project, and no injunction or similar relief is granted that would prohibit the project from being carried out pending final determination of the lawsuit, the project sponsor may proceed to completion and thereby render the legal challenge moot. (See 14 Cal. Code Regs., §15112(b).) However, Parkford also shows that, under different facts, courts will not “reward” project sponsors for proceeding with construction in the face of a pending legal challenge. In appropriate circumstances, the mootness doctrine also does not prevent courts from ordering relief in connection with a completed project.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]