On July 7, 2011, the Fourth District Court of Appeal ordered the publication of Del Cerro Mobile Estates v. City of Placentia (2011) __Cal.App.4th__. The appellate court held estoppel did not prevent the City of Placentia from raising the California Environmental Quality Act (CEQA) railroad grade separation exemption for the first time after Del Cerro Mobile Estates had already filed an action challenging the City’s certified environmental impact report (EIR) for the project. The court also rejected Del Cerro’s waiver and statutory construction arguments related to the CEQA exemption. Finally, the court found Del Cerro’s challenge to the City’s adoption of resolutions related to the project was unripe.

In November 2008, the City Council of Placentia certified an EIR for a railroad grade separation project and adopted a related resolution selecting Alternative D for implementing the project and incorporating feasible mitigation measures. Alternative D involved constructing several grade-separated over- and under-crossings, while Alternative C, which the City rejected, involved lowering the railway into a long corridor and potentially reconstructing or eliminating an existing grade separation. The City chose to complete an EIR because it believed certain alternatives under consideration, like Alternative C, would not qualify for CEQA exemption.

Del Cerro Mobile Estates sued the City, alleging the City’s approval of the project and its EIR violated CEQA. Del Cerro claimed a mobile home park it owned would be impacted in an undefined way by the railroad grade separation project. In January 2010, the Orange County Transportation Authority (OCTA) was allowed to intervene. Subsequently, OCTA filed a demurrer on the grounds that the project was exempt from CEQA under section 21080.13 of the Public Resources Code. Del Cerro amended its complaint to add new language asserting the City had violated its own resolutions when it tried to disregard and abandon the mitigation measures associated with the EIR. The trial court sustained the demurrer without leave to amend, and Del Cerro appealed to the Fourth District.
Reviewing de novo, the Court of Appeal first addressed Del Cerro’s waiver and estoppel arguments. Following the holding in Santa Barbara County Flower & Nursery Growers Assn. v. County of Santa Barbara (2004) 121 Cal.App.4th 864, the court found nothing in the record suggested the City had prevented Del Cerro from learning of the applicable CEQA exemption. Therefore, the preparation of the EIR and the City’s change in position did not prevent the City from raising the exemption for the first time after the EIR had been completed and challenged. The court found immaterial the fact that the City was the lead agency here, unlike the county in Santa Barbara County Flower & Nursery Growers. Because there were no facts in Del Cerro’s complaint that supported a scenario in which the exemption did not apply, the trial court had to follow the Legislature’s intent and give effect to the exemption upon demurrer.

The court then proceeded to reject Del Cerro’s statutory construction argument. Del Cerro claimed section 21080.13 did not apply to projects eliminating more than one grade crossing or reconstructing more than one existing grade separation because the plain text of the statute used the singular form of the terms “grade crossing” and “grade separation.” Finding the Legislature’s intent to be clear, the court quoted the urgency finding for the senate bill that enacted section 21080.13 to highlight the need to construe the statute broadly.

Finally, the court held Del Cerro’s four non-CEQA causes of action were not ripe. Del Cerro alleged the City made certain public comments revealing the City’s intention to disregard and abandon the mitigation measures adopted by resolution. Del Cerro also claimed the City illegally rejected the mitigation measures by pursuing the demurrer with OCTA. The court was unconvinced. Del Cerro never alleged that OCTA or the City took any steps to implement the project in a manner inconsistent with the City’s resolution. Del Cerro also failed to provide any evidence that these claims would soon ripen. The court concluded that no actual controversy existed, and these causes of action were unripe under section 1060 of the Code of Civil Procedure.