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REMY MOOSE MANLEY LLP

Sabrina V. Teller [email protected]

October 15, 2015

VIA ELECTRONIC & US. MAIL

Mendocino County Board of Supervisors c/o Carmel Angelo, Clerk of the Board 501 Low Gap Road, Room 1030 Ukiah, CA 95482 [email protected]

Re: Illegality of Board's Tentative Decision to Grant Appeal AA 2015-0002 regarding the Building Permit for Dollar General Store (BU2015-0104)

Dear Supervisors Brown, Gjerde, Hamburg, McCowen, and Woodhouse:

We represent Cross Development, LLC, ("Applicant") with regard to the approved Dollar General store at 8451 East Road, Redwood Valley, in Mendocino County. As explained in more detail below, we strongly caution that the Board's tentative decision, if finalized, to grant Appeal AA 2015-0002 will be an arbitrary and capricious withholding of the previously approved building permit that violates our client's constitutional rights to due process and equal protection. If you confirm your tentative vote to grant the appeal, the County and each of you as individual Board Members will be financially liable for our client's constitutional injury. (Bateson v. Geisse (9th Cir. 1988) 857 F.2d 1300, 1304.)

On October 6, 2015, the Board heard the appeal brought by Anthony and Alex Chehada ("Appellants") of the building permit issued for a Dollar General store in Redwood Valley. The planning staff and County Counsel have consistently and correctly recommended denial of the appeal, explaining that because a building permit has long been treated by the County as a ministerial approval and not a discretionary one, the California Environmental Quality Act (CEQA) does not apply and no environmental review can be ordered. Going against the correct advice of the County Counsel, the Board voted in favor of granting the appeal and overturning the decision of the Planning Commission to uphold the permit. Because the County Counsel advised the Board to make its 10/6/15 vote a tentative and not binding one, the Board scheduled the final vote for October 20th. It is our understanding that, at the 10/20/15 hearing, the Supervisors will only deliberate briefly among themselves and do not intend to reopen the hearing for public comments.

555 Capitol Mall, Suite 800 Sacramento CA 95814 i Phone: (916)443-2745 i Fax: (916) 443-9017 i www.rmmenvirolaw.com

Mendocino County Board of Supervisors October 15, 2015 of 8

If the Board proceeds with the interpretation of CEQA that has been advanced by Appellants and grants the appeal, then our client is prepared to pursue all legal remedies in state and/or federal court' against the County and each of you as individual Board members. If the County does not already have an indemnification agreement with the Appellants or Appellants' counsel, we suggest that the County should request that the Appellants enter into such an agreement before the October 20th hearing, since they have assured you that you're on solid legal footing.2

A. Under existing law, a Court will grant a writ of mandate compelling the County to issue the building permit because CEQA does not apply to the ministerial issuance of a building permit.

Unless the Board can find that the issuance of all building permits by the County are discretionary or mixed discretionary-ministerial actions requiring full CEQA review, the Board must deny the appeal. In the event that the Board grants the appeal without making a finding that all building permit approvals are discretionary3, a court can and very likely will grant a writ of mandate ordering the County to re-issue the building permit because CEQA does not apply to the ministerial issuance of a building permit. It is well established that mandamus may be issued when an official refuses to perform a ministerial function. (Metropolitan Water Dist. of Southern Cal. v. Marquardt (1963) 59 Ca1.2d 159, 170 ["Mandamus is available to compel an official to perform a ministerial duty"]; Palmer v. Fox (1953) 118 Cal.App.2d 453, 458-459 [defendant ordered by writ of mandate to issue ministerial building permit]; Ellis v. City Council of City of Burlingame (1963) 222 Cal.App.2d 490, 497-98.)

Appellants argued that Day v. City of Glendale (1975) 51 Cal.App.3d 817, is squarely applicable here. This contention is simply incorrect. Deputy County Counsel Kiedrowski

lAppellant's counsel Mr. Momsen has implied that the County would somehow get favorable or special treatment from a local state superior court judge (which is a breathtakingly arrogant and incorrect assumption), but please be advised that our client has strong constitutional claims that can be brought in the United States District Court, Northern District of California.

2 If the Appellant and Appellant's counsel refuse to enter into such an agreement, then the Board should consider whether or not the Appellants' legal arguments are indeed as strong as their counsel claims them to be. Without an indemnification agreement, Appellants can readily urge the Board to pursue an unlawful course of action because only the County and individual Board members will be financially liable for the constitutional and other legal injuries that will result for our client.

3 The Board would have to not only find that all future building permit approvals are discretionary, but would also have to retroactively apply its new interpretation to all previously issued building permits. This would, of course, be illegal.


correctly explained the law in summarizing Adams Point Preservation Society v. City of Oakland (1987) 192 Cal.App.3d 203, which states:

Day, however, holds only that a project of mixed ministerial-discretionary character should be treated as a discretionary project. [Citation.] In dicta, the court stated that "the discretionary-ministerial designation of a project is not necessarily determinative of its environmental impact." [Citation.] To the extent such dicta [in Day] implies that CEQA applies to ministerial acts, it is not supported by any provision of CEQA and we do not find it controlling here.

(Id. at p. 207, emphasis added.) In other words, the court in Adams Point clarified that the dicta4 in Day (which is heavily relied upon by Appellants' counsel and Supervisor McCowen) was not controlling. The court in Adams Point concluded that the issuance of the demolition permit at issue in the case was a purely ministerial act, and not a mixed discretionary-ministerial act. And because the dicta in Day was not controlling, the court properly concluded that the ministerial issuance of the demolition permit was not governed by CEQA. Similarly, here, the purely ministerial issuance of the building permit is not governed by CEQA, and the Board cannot reasonably rely on Day to support its revocation of that permit.

Appellants also mislead the Board by quoting dicta in Friends of Westwood Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 281. Appellants' counsel argued that Friends of Westwood "suggests" that Day can stand for the proposition that CEQA applies to ministerial acts. This is flat-out incorrect. The passage quoted by Appellants' September 29, 2015, letter appears in a section of the opinion that is titled:

The Building Permit Approval Process for This Major Building Involves So Much Discretion As to Matters Which Have Potential Implications For The Environment It Surpasses the Threshold Level of Discretion Required To Qualify As A 'Discretionary Project' Even Though Most Building Permits Remain 'Ministerial Projects.'

(191 Cal.App.3d at p. 279, emphasis added.) As this section heading and the rest of the opinion make clear, the court in Friends of Westwood held that CEQA applied to the approval of the 26-story, 363,000 sf tower because the City's "plan check approval" process for "major projects" like the tower was in fact a discretionary action, unlike the County's ministerial approval of the building permit here. (See Prentiss v. City of South Pasadena (1993) 15 Cal.App.4th 85, 91 [characterizing Friends of Westwood as a case

4 "Dicta" is defined as the opinions of a judge that do not embody the resolution or determination of the specific case before the court. Dicta encompasses all expressions in a court's opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent.


where "substantial discretion exists in the local ordinance" and the "'major project' permit involving 26—story building required substantial exercises of discretionl .) Appellants' counsel conveniently neglected to bring to the Board's attention more recent case law that supports the Applicant's and County Counsel's interpretation of Day on this issue. Prentiss v. City of South Pasadena (1993) 15 Cal.App.4th 85, 86-87, is directly on-point and would be very persuasive to a reviewing court. In Prentiss, a building permit for a residence became embroiled in controversy after opponents asserted that the home was a historic structure and insisted that an environmental impact review be conducted to determine effects on the "historical environment." The City tried to require that a mitigated negative declaration be prepared under CEQA and to require that the homeowners agree to recommendations of a consulting historical architect for changes in their building plans to preserve the historic architecture. The homeowners successfully petitioned for a writ of mandate to compel the city to issue the building permit without the historic architecture conditions. The court confirmed that CEQA does not apply to a ministerial building permit and therefore the city did not have the authority to impose requirements to undertake review under CEQA. The Prentiss case confirms what we have been trying to explain on behalf of the Applicant throughout this process: that the key (and only) determination for the Board on this appeal is whether the building permit challenged by the Appellants is ministerial or discretionary. If it is ministerial (and the County has long treated building permits as such), you may not require CEQA review regardless of community controversy or your concerns about environmental impacts. Your only legal course of action is to deny the appeal because the proposed store complies with the only requirements that are applicable to the project site.

Appellants' counsel has given the Board the erroneous impression that CEQA case law allows a decision-making body to override CEQA's exemption for purely ministerial actions where there is enough controversy or community concern about potential environmental impacts. This is not, and has never been, a correct interpretation of the law.

B. Granting this appeal and revoking the Applicant's building permit would be an unconstitutional violation of the Applicant's rights under the Equal Protection and Due Process Clauses.

Even if the Board were to make findings that the Dollar General store here could have potential environmental impacts and that the issuance of the building permit was not entirely ministerial, the County and individual Board members would still be liable for violating our client's rights under the Equal Protection and Due Process Clauses. (U.S. Const. amend XIV, § 1.) Evidence in the record clearly shows that our client has been singled out for unequal treatment5 and egregiously deprived of its substantive due

5 Or does the Board plan to also require CEQA review for every single previously approved and currently pending building permit application in the County?


process. Under applicable Ninth Circuit case law, the County and individual Board members would have no viable defense against a suit alleging deprivation of the Applicant's constitutional rights under 42 U.S.C. § 1983.6 (Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564-65 [recognizing "equal protection claims brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment"]; Bateson v. Geisse (9th Cir. 1988) 857 F.2d 1300, 1303-1304 [finding that the city and individual city council members were liable for violating the applicant's substantive due process rights because they arbitrarily withheld a building permit]; Del Monte Dunes at Monterey, Ltd. v. City of Monterey (9th Cir. 1990) 920 F.2d 1496, 1508 [substantive due process claims, where city council allegedly changed course and rejected project that city staff had found met all required conditions].)

C. If the Board adopts improper findings about how the Dollar General store will cause some sort of detrimental effect, then the Board will be abusing the appeal hearing process.

As the staff and County Counsel correctly note in the October 6, 2015 staff memo to the Board, the decision the Board was required to consider on appeal is "very narrow in scope and strictly pertain[s] to whether or not staff followed proper procedure in granting a zoning clearance to building permit # BU 2015-0104." If the Board chooses to improperly adopt findings about how the Dollar General store may cause adverse environmental impacts, a court would easily find that the Board abused its appeal hearing process. (Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 189 [finding that the city improperly refused to issue a building permit and "abused the appeal hearing process by. . . using the occasion of the hearing to decide whether the [project] would or would not have a 'significant impact on the environment"].)

D. The County does not have "carte blanche to exclude a retail merchant that it, or some of its residents, do [es] not like."

While the Board is clearly sensitive to the passionate appeals of some Redwood Valley residents, the Board must remember that the County does not have unlimited authority over the regulation of land use within its territory. If a type of use is permitted, then the County cannot arbitrarily exclude some businesses while allowing others employing the

6 42 U.S.C. § 1983 states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State. . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ."


same use to operate. Here, the proposed use is clearly permitted; even the Appellants do not dispute that the building permit application complied with the zoning codes and all other ordinances in effect at the time the application was submitted. Therefore, the County cannot arbitrarily exclude a particular retail store, Dollar General, while allowing other general retail stores to operate simply because the Board and some residents have some animus toward Dollar General. "This sort of arbitrary administration of the local regulations, which singles out one individual to be treated discriminatorily, amounts to a violation of that individual's substantive due process rights." (Bateson v. Geisse (9th Cir. 1988) 857 F.2d 1300, 1303.)

As the court in Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, cautioned:

While a city has broad authority over the regulation of land use within its territory, that authority is not unlimited. Where certain uses are permitted, a city cannot arbitrarily exclude others who would employ a similar use. (Citation.) Zoning and building laws "cannot be used unqualifiedly to restrict competition" (citation), or simply to shield existing businesses from competition (citation). While valid zoning regulations may affect competition and have other economic effects, a city does not have carte blanche to exclude a retail merchant that it, or some of its residents, do not like. (Citation.) The broad and standardless construction of the City's design review ordinance urged by plaintiff would confer on the City's planning department virtually unrestrained power to decide who may and who may not do business in the City.

(Id. at p. 1013, emphasis added.)

E. If the Board denies the appeal and the Appellants sue the County, the County is likely to prevail on a demurrer for failure to state grounds for relief.

As the County Counsel can explain to the Board, the denial of the appeal is the only legally defensible position for the Board to take. For example, in Adams Point, the court sustained the city's demurrer and effectively threw out a CEQA challenge because the city's issuance of the permit at issue was purely ministerial and CEQA did not apply.

We therefore conclude, as did the trial court, that the petition does not allege facts sufficient to show that the issuance of the demolition permit was governed by CEQA. Accordingly, the petition fails to state grounds for relief based upon noncompliance with CEQA and the demurrer was properly sustained. (Simi Valley Recreation & Park Dist. v. Local Agency Formation Com. (1975) 51 Cal.App.3d 648, 652, 666-667, 124 Cal.Rptr. 635 [because public agency's action as alleged in petition was purely


ministerial and therefore exempt from CEQA, the demurrers to the causes of action based upon CEQA were properly sustained].)

(Adams Point Preservation Society v. City of Oakland (1987) 192 Cal.App.3d 203, 207-08.)

F. Appellants' other arguments also fail.

Appellants argue that the building permit application is the "only point at which the environmental impacts" of the Dollar General store could have been publicly considered. To support this argument, Appellants included a lengthy summary of their (admittedly) partial review of the administrative record related to the EIR for the General Plan. This argument must fail.

First, as explained above, unless the Board can find that the routine issuance of building permits is always a discretionary action, CEQA does not apply to this project. Therefore, it would not matter if the analysis in the General Plan EIR was somehow incomplete with respect to Redwood Valley. Second, as the staff and Planning Commission correctly point out in the staff memo, the time for challenging the General Plan EIR has passed.

Appellants also argue that the Board has the "legal jurisdiction to exercise discretion and order environmental review under CEQA" because the project "involves an approval that contains elements of both a ministerial action and a discretionary action." This argument also falls flat. Appellants raised the well permit and the septic permit for the first time in their September 29, 2015 letter. But most importantly, the issuance of the well permit and the issuance of the septic permit (i) were never appealed in a timely manner, (ii) were not considered by the Planning Commission, and (iii) are not before the Board now.

Additionally, the County's staff have explained that the issuance of well and septic permits are routinely treated as ministerial approvals, so any attempt by Appellants to shoehorn a discretionary element into their appeal of the ministerial building permit process would fail.

G. If the Board grants the appeal, it will send a very chilling message to current and future business endeavors in the County.

In its tentative vote on a motion to grant the appeal, apparently on the mistaken belief that the County may require review under CEQA of the proposed store first, the Board has demonstrated a disturbing willingness to cast aside its long-standing zoning and permitting regulations simply to appease a small group of angry constituents. Landowners, business interests and developers rely on the predictability and certainty that the County's established zoning and permitting scheme provides in making significant financial investments and business development proposals. The Board should


very carefully consider what kind of message its actions on this appeal are sending to all of its citizens, existing taxpaying businesses, and future businesses, regarding the Board's willingness to treat all corners fairly and legally within the confines of the County's adopted plans and regulations. By ignoring the law to stop one single, permitted store, you may be doing irreparable damage to your County's future economic health. I sincerely hope you'll reconsider and reverse your tentative vote and deny the appeal.

Very truly yours,

Sr3 k; Sabrina V. Teller

cc: Doug Losak, County Counsel Brian Momsen, Carter, Momsen & Knight for Appellants

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