Reprinted with the permission of LexisNexis.
121 Cal. App. 4th 128; 2004 Cal. App. LEXIS 1254; 2004 Cal. Daily Op. Service 6894;
2004 Daily Journal DAR 9343
DELTA WETLANDS PROPERTIES, Plaintiff
COUNTY OF SAN JOAQUIN et al., Defendants and
COURT OF APPEAL OF CALIFORNIA,
July 29, 2004,
NOTICE: CERTIFIED FOR PARTIAL PUBLICATION n1
n1 The Reporter of Decisions is directed to
publish the opinion except for Parts III through IV of the Discussion.
Ellison, Schneider & Harris,
Anne J. Schneider, Jason M. Miller; Herum, Crabtree & Brown and Steven A.
Herum for Plaintiff and Appellant.
Terrence R. Dermody, County Counsel;
Neumiller & Beardslee, Thomas J. Shephard, Deeanne Gillick, Michael F.
McGrew; Nomellini, Grilli & McDaniel and Dante John Nomellini for
Defendants and Respondents.
BLEASE, Acting P. J.--Plaintiff Delta Wetlands Properties (DW) appeals from a judgment
denying its petition for a writ of mandate to set aside and declare void a
zoning ordinance adopted by defendants County of San Joaquin (the County) and
the San Joaquin County Board of Supervisors (the Board) that may apply to its
commercial water storage project in the Delta.
The ordinance was adopted as an amendment
to the County's zoning code to prohibit the location of reservoirs of 500 acres
or more in residential, industrial and other zones within the county except for
agricultural zones. It does not apply to reservoirs under the jurisdiction of
the State as provided by the Water Code. A conditional use permit is required
for location in a permitted zone.
DW proposes to use property it owns in the
Sacramento-San Joaquin Delta area (Delta) for the storage and subsequent sale
of surface water acquired during periods of high runoff. Its project would
flood two islands in the Delta with water appropriated pursuant to a permit
from the State Water Resources Control Board (Water Board). n2 DW plans to sell
stored water to unnamed purchasers.
DW has not applied for a permit for its
project pursuant to the San Joaquin ordinance. It
challenges the ordinance on its face on the grounds it conflicts with
Government Code section 53091, which applies to local agencies, or is preempted
by implication, it illegally discriminates against DW's project, the County
failed to consider competing regional interests and the County failed to comply
with the requirements of the California Environmental Quality Act (CEQA).
The trial court entered a judgment denying
the writ of mandate. We conclude
that state law does not preempt the zoning authority of the County as provided
in the County ordinance. Government Code section 53091 does not apply to
private projects. Both the conditions attached to the Water Board's permit and
the statutes make clear that the authority granted the Water Board by the Water
Code does not impair the permit authority granted by statute to other agencies
over the project which makes possible the appropriation of the water. We find
no merit to DW's other claims of error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
DW is an Illinois general partnership. It applied to the Water Board for a permit to
appropriate water from its planned storage facilities. The Water Board approved
DW's application in February 2001. As noted, the validity of the permit is on
appeal to this court.
On November 27, 2001, the County adopted Development Title Text Amendment No. TA-01-9, an
interim urgency ordinance, that allows water storage facilities to be located
in the General Agricultural (AG) and Agricultural Resources Management (ARM) zones subject to a conditional use
permit. Such facilities are not allowed in residential, industrial and other
zones. On January 8, 2002, the Board voted
to extend the interim ordinance. On January 17, 2002, DW filed a writ of mandate and complaint for injunctive relief
challenging the interim ordinance.
The County staff submitted a permanent
ordinance. An initial CEQA study was completed on February 4, 2002, and a proposed negative declaration was posted on February 19, 2002. The County submitted its environmental documents to the State
Clearinghouse for review and at the termination of the review period was
notified that no state agencies had commented on the documents.
The Board held a noticed public hearing on May 28, 2002, to consider a negative declaration and a permanent ordinance to
replace the interim ordinance. Over the objections of DW the Board voted to
approve the ordinance and to adopt the negative declaration.
The ordinance adds section 9-115.582 to the
Use Classification System of San Joaquin County Development Title as follows:
"Section 9-115.582 Water Storage. The intentional use of any area of 500
acres or more for the containment of water which will at any time exceed an
average six (6) feet in depth for 30 days or more in any calendar year. This
section does not apply to containment by a levee of an island adjacent to tidal
waters in the Sacramento-San Joaquin Delta as defined in California Water Code
Section 12220 if the maximum possible water storage elevation exceeds four feet
above mean sea level as established by the United States Geological Survey 1929
datum. This section does not apply to dams and reservoirs under the
jurisdiction of the Federal Government or the State of California exercising jurisdiction under Division 3 of the California Water
The ordinance provides that water storage
projects as defined are permitted only in the General Agricultural and
Agricultural Resource Management zones subject to a conditional use permit.
DW filed a timely petition for writ of
mandate and complaint for preliminary injunction to set aside the permanent
ordinance. The action was coordinated with DW's prior challenge to the interim
The trial court denied the coordinated
petitions for writ of mandate and the ruling was incorporated in a judgment
approving the ordinance. The trial court ruled the adoption of the permanent
ordinance rendered the challenge to the interim ordinance moot. DW does not raise
the issue of mootness on appeal. We therefore refer only to the permanent
DW challenges the County ordinance on its
face. It argues the ordinance is preempted by state law on the view it is in
conflict with Government Code section 53091 or is preempted by implication
because the state has so completely covered the subject matter as to show it is
one of exclusive state concern.
Under article XI, section 7 of the
California Constitution, a "county or city may make and enforce within its
limits all local, police, sanitary, and other ordinances and regulation not in
conflict with general laws." Since
the location of a reservoir ordinarily is within the municipal zoning power, an
assumption DW does not dispute, an ordinance regulating the field may be
enacted unless it conflicts with general law. (See Baldwin v. County of
Tehama (1994) 31 Cal.App.4th 166, 173 [36 Cal. Rptr. 2d 886].)
Local legislation conflicts with general
law if it "duplicates, contradicts, or enters an area fully occupied by
general law ... ." ( Great Western Shows v. County of Los Angeles
(2002) 27 Cal.4th 853, 860 [118 Cal. Rptr. 2d 746, 44 P.3d 120], internal
quotations omitted, quoting Sherwin-Williams Co. v. City of Los Angeles
(1993) 4 Cal.4th 893, 897-898 [16 Cal. Rptr. 2d 215, 844 P.2d 534].)
A. Section 53091
DW argues the county ordinance is in direct
conflict with the provision of section 53091, subdivision (e), that
"[z]oning ordinances of a county or city shall not apply to the location
or construction of facilities for the production, generation, storage,
treatment, or transmission of water ... ." n3 It reads the provision, in
isolation from the section of which it is a part, as applying not only to local
agencies but to private commercial projects as well. We do not so read it.
In ascertaining the meaning of a statute we must consider
the language of the statute in context, keeping in mind the objective the
Legislature intended to accomplish and the evil to be remedied. ( City of
Lafayette v. East Bay Municipal Utility District (1993) 16 Cal.App.4th
1005, 1012-1013 [20 Cal. Rptr. 2d 658] (Lafayette).) It is established
law that "[t]he meaning of a statute may not be determined from a single
word or sentence; the words must be construed in context, and provisions
relating to the same subject matter must be harmonized to the extent possible.
[Citation.]" ( Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248
Cal. Rptr. 115, 755 P.2d 299].) Each sentence of the statute must be read in
light of the entire statutory scheme. (Ibid.) Of importance here the
provision we are asked to construe is an exception to a general rule which
applies only to local agencies.
The provision at issue is contained in a part of the
Government Code that applies to local governmental agencies. Section 53091 is
contained within Title 5, Division 2, Part 1, Chapter 1, Article 5 of the
Government Code. Title 5 is entitled "Local Agencies." Division 2 is
entitled "Cities, Counties and Other Agencies." Article 5 is entitled
"Regulation of Local Agencies by Counties and Cities." Section 53091
bears the heading "Compliance of local agency with county or city building
and zoning ordinances."
Section 53091 was enacted as part of a statutory scheme
entitled "Regulation of Local Agencies by Counties and Cities" in
response to judicial decisions that broadly immunized state agencies from local
regulation. ( Lafayette, supra, 16 Cal.App.4th at p. 1013.) "Local
agency" is defined as "an agency of the state for the local performance
of governmental or proprietary function within limited boundaries." (Gov.
Code, § 53090, subd. (a).) The purpose was to give cities and counties control
over zoning and building restrictions and to strengthen local planning
As enacted, section 53091 expressly excepted the location
and construction of water and electrical facilities by local agencies from the
general rule imposing zoning and building regulations on local agencies.
"Building ordinances and zoning ordinances of a county or city shall not
apply to the location or construction of facilities for the production,
generation, storage, or transmission of water or electrical energy by a
local agency." (Stats. 1959, ch. 2110, § 1, pp. 4907-4908; italics
The statute was amended in 1977. It retained the above
provisions. It added exceptions for facilities subject to section 12808.5 of
the Public Utilities Code and certain electrical substations. (See now Gov.
Code, § 53091, subd. (e).) It added that "[z]oning ordinances of a county
or city shall apply to the location or construction of facilities for the
storage or transmission of electrical energy by a local agency.
..." (Stats. 1977, ch. 435, § 1, pp. 1467-1468, italics added.)
The Legislative Counsel's digest of chapter 435 sets forth
the purpose of the amendments: "Existing law exempts the location or
construction of facilities for the production, generation, storage, or
transmission of water or electrical energy by a local agency from the
zoning ordinances of a county or city.
" This bill would remove from the existing exemption,
some facilities for the storage or transmission of electrical energy under
certain terms and conditions and would provide that a local agency need not
comply with local zoning unless the zoning ordinance makes provision for the
location of the types of facilities generally operated by the district or
agency." (Legis. Counsel's Dig., Assem. Bill No. 242 (1977-1978 Reg.
Sess.) 3 Stats. 1977, Summary Dig., p. 106, italics added.)
The digest does not state the amendment would enlarge the
zoning exemption to include water facilities constructed by private parties.
As noted, Government Code section 53091, subdivision (e),
does exempt from zoning ordinances "facilities that are subject to Section
12808.5 of the Public Utilities Code ... ." DW argues the public utilities
referred to in subdivision (e) are not "local agencies," and thus
subdivision (e) applies to entities other than "local agencies." This
Public Utilities Code section 12808.5 is part of the
Municipal Utility District Act, and applies to facilities located or
constructed by a municipal utility district. (Pub. Util. Code, §§ 11503,
12808.5.) Contrary to DW's claims, courts have narrowly interpreted the
exemptions from Government Code section 53091 to refer to local agencies. ( Lafayette,
supra, 16 Cal.App.4th at p. 1017.) In Lafayette, the court indicated a municipal
utility district (the type of utility regulated by section 12808.5 of the
Public Utilities Code) was a "local agenc[y]" that was generally
required to comply with city and county building and zoning ordinances. ( Id.
at p. 1013.) In Kehoe v. City of Berkeley (1977) 67 Cal. App. 3d 666
[135 Cal. Rptr. 700], the court held a redevelopment agency was a "public
agency" as defined by Government Code section 53090 because it fit within
the definition of a "district, agency, or authority created or authorized
by state law and exercising governmental functions within limited territorial
boundaries ... ." ( Id. at p. 673.) Likewise, in City of Burbank
v. Burbank-Glendale-Pasadena Airport Authority (1999) 72 Cal.App.4th 366,
375 [85 Cal. Rptr. 2d 28], the court held a joint powers authority created by
the cities of Burbank, Glendale, and Pasadena was a "local agency" for purposes of section 53091.
In the 1977 enactment of the provisions containing
Government Code section 53091 the Legislature added section 53096 to provide
that a local agency, by a four-fifths vote of the members of its government
board, could "render a city or county zoning ordinance inapplicable ...
except when the proposed use of the property by such local agency is for
facilities not related to storage or transmission of water or electrical
energy, including, but not limited to, warehouses, administrative buildings or
automotive storage and repair buildings." (Stats. 1977, ch. 435, § 2, p.
1468.) n4 Parsing the double negative, this says a local agency may render a
zoning ordinance inapplicable to facilities "related to" the
storage or transmission of water. The "related" facilities are those
"which have a 'connection with' and are in fact integral to the proper
operation of particular storage and transmission functions of water
districts." ( Lafayette, supra, 16 Cal.App.4th at 1015.) The "related"
facilities do not include those specified, such as "warehouses,
administrative buildings or automotive storage and repair buildings." n5
Private parties are not the subject of this statutory scheme
and it would have been at odds with it to include them. Rather, the exception
for water storage and other facilities is in the nature of a proviso. It
qualifies or explains the general enacting clause. ( U.S. v. Morrow
(1925) 266 U.S. 531, 534-535 [69 L. Ed. 425, 427, 45 S. Ct. 173]; Reuter v.
Board of Supervisors of San Mateo County (1934) 220 Cal. 314, 321 [30 P.2d
A proviso must be read in light of the subject matter of the
act. The subject matter of a proviso is the same as that of the general rule it
qualifies, and cannot be read to enlarge the operation of the rule. ( People
ex rel. Happell v. Sischo (1943) 23 Cal.2d 478, 493 [144 P.2d 785].)
"It is an accepted rule of statutory construction that a proviso is used
to limit and qualify that which immediately precedes it and to expressly
negative a construction that would prevail in the absence of the proviso."
The general rule of Government Code section 53091 is set
forth in subdivision (a). "Each local agency shall comply with all
applicable building ordinances and zoning ordinances of the county or
city in which the territory of the local agency is situated." (Italics
added.) The exceptions to the rule are contained in subdivisions (d) and (e).
Subdivision (d) states that building ordinances do not apply to water storage
facilities if constructed "by a local agency." Subdivision (e) states
that zoning ordinances do not apply to water storage facilities but does not
contain the modifying "local agency" language. n6 Without the
exceptions the general rule of subdivision (a) would apply. So it is plain the
exceptions concern only the general rule. It would make no grammatical sense to
except private commercial projects from a rule that does not apply to them.
DW relies on opinions of the Attorney General. However they
do not assist us in interpreting the statute. All of them were written prior to
1977 at a time when the statute expressly exempted only public agencies from
county building and zoning ordinances. n7 They could not possibly be construed
to interpret section 53091 to extend the exception for water storage facilities
to private parties.
B. Implied Preemption
When the claim is made "that an entire field has been
occupied by state law, wholly precluding municipal regulation, it must be shown
that the general law directly or impliedly 'covers' the whole of the claimed
field of regulation." ( Baldwin v. Co. of Tehama, supra, 31
Cal.App.4th at p. 174.)
DW defines the field of regulation as surface water
diversion and storage. It claims the regulation of this field is exclusively a
matter of statewide concern and includes the location of a water storage
facility. DW relies on authority regarding the appropriation of water. DW
claims "The extensive Water Code 'provides a comprehensive scheme for the
appropriation of water.' (Citation omitted.)" n8
It is true the right to appropriate or use water subject to
appropriation must be acquired pursuant to the provisions of the Water Code.
(Wat. Code, § 1225.) However, the authority of the Water Board to regulate the
appropriation of water is not coextensive with the authority to regulate the
construction or location of the project which makes possible its appropriation.
The Water Code does say it is "the intent of the Legislature by this part
to provide for the regulation and supervision of dams and reservoirs
exclusively by the State." (Wat. Code, § 6025.) The part concerns the
Department of Water Resources which is vested with the police power to
"supervise the construction, enlargement, alteration, repair, maintenance,
operation, and removal of dams and reservoirs ... ." (Wat. Code, § 6075.)
Within this power the Water Code defines a reservoir subject to the
department's jurisdiction essentially as a circular dam (§ 6004.5) but excludes
the impoundment of water by a levee of an island in the Delta, which is not
"a reservoir if the maximum possible water storage elevation of the
impounded water does not exceed four feet above mean sea level ... ."
(Wat. Code, § 6004, subd. (c).) n9
The County ordinance by its terms comes within this
exclusion because it does not apply to the "containment [of water] by a
levee of an island adjacent to tidal waters in the Sacramento-San Joaquin Delta
... if the maximum possible water storage elevation exceeds four feet above
mean sea level ... ." Moreover, the County ordinance does not apply to
"dams and reservoirs under the jurisdiction of the ... State of California
exercising jurisdiction under Division 3 of the California Water Code,"
the provisions set forth above. In short, the County ordinance does not attempt
to regulate or supervise the construction of a reservoir in the Delta within
the state's jurisdiction over dams.
Water Code section 6026 reflects a clear intent on the part
of the Legislature to allow local regulation of some aspects of surface water
storage projects. Although it provides that no city or county may adopt an
ordinance to regulate the construction, maintenance, or operation of any dam or
reservoir within its purview, it excepts "city or county ... regulating,
supervising, or providing for the regulation or supervision of dams and
reservoirs that (a) are not within the state's jurisdiction, or (b) are not
subject to regulation by another public agency or body." n10 There can be
no preemption by implication if the Legislature has expressed an intent to
permit local regulation or if the statutory scheme recognizes local regulation.
( People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476,
485 [204 Cal. Rptr. 897, 683 P.2d 1150].)
State law specifically recognizes the authority of the County
to regulate land use in the Delta. The Johnston-Baker-Andal-Boatwright Delta
Protection Act of 1992 states the "[r]egulation of land use and related
activities that threaten the integrity of the delta's resources can best be
advanced through comprehensive regional land use planning implemented through
reliance on local government [n11] in its local land use planning procedures
and enforcement." (Pub. Res. Code, § 29709, subd. (a).) The Delta
Protection Act provides for a Delta Protection Commission that must adopt a
regional plan, and must approve amendments to the County's general plan to
render the general plan consistent with the regional plan. n12 (Pub. Res. Code,
§§ 29735, 29760, 29763, 29763.5.) The County's general plan must provide that
any development n13 will not result in the degradation of water quality, will
not expose the public to increased flood hazard, and will not result in the
degradation of levee integrity. (Pub. Res. Code, § 29763.5.) These provisions
manifestly do not preempt the County's land use authority. If anything, they
impose a duty to regulate land uses within the purview of the legislation.
The only power the County ordinance purports to exercise is
the land use power of the county, and specifically the zoning power. Under this
power, counties may regulate the use of land to determine where certain uses
are allowed. (Gov. Code, § 65850.) DW has produced no authority that this
authority is preempted by state law. DW cannot and does not contend, for
example, that the County has no right to regulate the construction of a large
reservoir in the middle of an area zoned residential, a location prohibited by
the County ordinance. Because this is a facial attack on the County ordinance,
we are not faced with a situation in which the County has attached conditions
to a use permit which implicates a power possessed by an entity other than the
Lastly, DW argues that because the Water Board considered a
wide range of issues when granting DW's permit to appropriate water by means of
its proposed reservoirs, local regulation of these matters is preempted. DW
claims the Water Board must examine environmental impacts, levee stability,
seepage impacts, and reservoir construction. It argues that this broad
authority impliedly supplants the County's land use authority over the location
of reservoirs. We disagree.
DW has confused the Water Board's authority to condition a
permit for the appropriation of water, subject to the administrative sanction
of withdrawal or denial, with the permit authority of other entities to
regulate matters within the condition. The
Water Board has broad jurisdiction over permits for the appropriation of water.
(Wat. Code, §§ 1225, 1250.) That includes the use to be made of waters
impounded in a reservoir. (Wat. Code, § 1266.) In issuing a permit the Water
Board must attach "such terms and conditions as in its judgment will best
develop, conserve, and utilize in the public interest the water sought to be
appropriated." (Wat. Code, § 1253; see also §§ 1255, 1256.) In determining
whether an appropriation is in the public interest, the Water Board may examine
a number of concerns that relate to the construction and impact of the
reservoir, the means by which the water is appropriated. In the case of DW's
permit, the Water Board considered the feasibility of proposed levee
construction activities, seepage impacts to neighboring islands, damage to
neighboring property, and impacts on fish and wildlife. However, the fact the
Water Board may condition the appropriation of water in the public interest
does not mean it has exclusive permitting authority over the project.
In this case the Water Board studied the proposed levee
construction as a part of its determination the project would be in the public
interest. However, it expressly recognized that it was "not required to
conduct a detailed examination of the engineering aspects of the DW Project
reservoirs." It noted that for large projects, "[o]ther agencies have
authority to approve dams and levees ... ." n14
DW confuses the two roles of the Water Board in approving a
permit to appropriate water. (17) First, the Water Board is the
permitting authority for the appropriation of water, over which it has
exclusive jurisdiction. Second it may attach conditions in the public interest
and is the lead agency under CEQA with the "principal responsibility for
carrying out or approving" the project. (Pub. Res. Code, § 21067.) As the
lead agency in a CEQA determination, the Water Board is responsible for
deciding whether an EIR should be prepared and for causing it to be prepared. (Cal. Code Regs., tit.
14, § 15367.) However, in that role it does not have exclusive permitting
authority over the project. A project may involve other, "responsible
agencies" that have discretionary approval power over some part of the
project. (Pub. Res. Code, § 21069; Cal. Code Regs., tit.
14, § 15381.)
Finally, the permit issued to DW by the Water Board itself
recognizes that state law has not entirely preempted the field with respect to
the project. The order granting the permit contains a standard permit condition
that states, "[n]o construction shall be commenced and no water shall be
diverted under this permit until all necessary federal, state and local
approvals have been obtained."
The Water Board decision specifically recognizes the
jurisdiction and responsibility of San Joaquin and Contra Costa Counties. It notes the project will have an impact "relating to fire and
police protection, water supply, sewage and waste disposal" and that such
impacts are "within the responsibility and jurisdiction of Contra Costa County and San Joaquin County." The decision concludes the counties "can and should adopt
... mitigation measures" regarding these subjects. The County cannot
require mitigation measures unless it has permitting authority to do so.
The Water Board decision also states that "[r]oad
maintenance and traffic flow are within the responsibility and jurisdiction of
the counties." It recognizes the County will have permitting authority
over the project in stating that "impacts to traffic due to the
recreational facilities are within the responsibility and jurisdiction of Contra Costa County and San Joaquin County. These counties can and should adopt the mitigation measures in the EIR, and if they approve the project,
should make a finding of overriding considerations for the unmitigated traffic
impacts." (Italics added.)
Fire and police protection, water supply, sewage and waste
disposal, and road maintenance and traffic flow are all factors that are
typically studied in issuing a conditional use permit. (See Centinela
Hospital Assn. v. City of Inglewood (1990) 225 Cal. App. 3d 1586, 1591 [275
Cal. Rptr. 901] (resolution approving use permit made findings on traffic); Pacifica
Homeowners' Assn. v. Wesley Palms Retirement Community (1986) 178 Cal. App.
3d 1147, 1150 [224 Cal. Rptr. 380] (findings supporting issuance of use permit
considered sewer, water supply, and fire protection); BreakZone Billiards v.
City of Torrance (2000) 81 Cal.App.4th 1205, 1246 [97 Cal. Rptr. 2d 467]
(an agency appropriately considers issues of traffic and safety in applications
for use permits).)
DW recognizes that its project is not exempt from all local
regulation. Rather, it claims the Water Board identified, and thus limited, the
local approvals over which the County has jurisdiction--mosquito abatement,
boating and recreation, fire and police protection, water supply for
recreational buildings and facilities, sewage and waste disposal, and road
maintenance and traffic flow.
DW's challenge to the ordinance is a facial challenge. It
cannot make an as-applied challenge to the ordinance, since it has not applied
for a permit under the ordinance, and it is not clear from the record whether
the ordinance will apply to the project. n15 DW does not ask us to determine
what sorts of County regulation would be preempted by the ordinance. Until such
time as the ordinance has been applied to DW, such a claim is not ripe for
The state has not preempted the entire field relating to the
regulation of water projects. We leave the question of the precise conditions
the County may attach to a project subject to a water permit to such time as
the issue becomes ripe.
DW argues the ordinance illegally discriminates against the
project. At least as early as 1992 DW ascertained the project was consistent
with the County's General Plan, although the particular use, water storage, was
not specifically enumerated in the list of permitted uses in the general
agricultural zone in which the project was located. After DW received its
permit to appropriate water from the Water Board, the County adopted an interim
ordinance, and shortly thereafter a permanent ordinance requiring a use permit
for water storage projects.
Absent a development agreement, an administrative body
ordinarily may deny a building permit when there is a zoning change after the
permit application is made and the contemplated use is no longer permitted. ( Avco
Community Developers, Inc. v. South Coast Regional Commission (1976) 17
Cal.3d 785, 795 [132 Cal. Rptr. 386, 553 P.2d 546]; Citizens for Responsible
Government v. City of Albany (1997) 56 Cal.App.4th 1199, 1213-1214 [66 Cal.
Rptr. 2d 102].) DW relies on a line of cases holding that zoning amendments
occurring after the application for a permit cannot be enforced upon the
applicant if the sole purpose for enacting the zoning amendments was to
frustrate the particular project. ( Sunset View Cemetery Assn. v. Kraintz
(1961) 196 Cal. App. 2d 115 [16 Cal. Rptr. 317]; City of Orange v. Valenti
(1974) 37 Cal. App. 3d 240 [112 Cal. Rptr. 379].)
As evidence the ordinance in question was adopted to
frustrate the project, DW points to certain statements made in the public
hearings regarding the ordinances. During the hearing on the interim ordinance,
staff informed the Board that the ordinance was "necessitated by the Delta
Wetlands Project, which was recently approved by the State, and it calls for
the [inundation] of Bacon and Bouldin Islands in the Delta. And the County presently does not have any provisions
contained in the development title for permitting for these large water storage
reservoirs. ... So basically, without this ordinance and then the ensuing more
permanent change to the development title that we are processing, there would
be no permits required by San Joaquin County, no CEQA review, no discretionary type conditions for the Delta
Wetlands project. Of particular concern to San Joaquin County, was the loss of farmland and the lack of any type of mitigation for
the loss of agricultural land."
Dante Nomellini, who represented the Central Delta Water
Agency in challenging the Water Board decision granting DW's water rights
permit, also spoke to the Board. n16 He stated one of the concerns regarding
the Water Board's decision was its failure to consider mitigation of
agricultural impacts. He told the Board, "everybody assumed that your
county, ... would have jurisdiction over this project. Including addressing
impacts like on Bacon Island Road or what have you. ... [O]ur ordinances don't
provide for that review. So unless you can 'boot strap' your way with a
building permit of some type, you know ... to reach these concerns you would
not have jurisdiction so I urge the Planning Department to give this
consideration as soon as possible so that the project does not completely vest,
prior to your establishing some type of an ordinance review. And we also have
the Stanton Island situation which wildlife friendly agriculture is okay but there's a
plan. ... so we tried to make focused on these projects that could have major
impacts on agriculture in the community ... we will go through the Advisory
Water Commission and go through the processes but we're trying to protect the
date for jurisdiction so that you might have some ability to review these major
projects that are already on the books."
The County's deputy public works director expressed concern
that the wording of the interim ordinance should be reviewed before passing a
permanent ordinance to ensure the ordinance would have no unintended
applications, such as to property that was accidentally flooded as the result
of a levee break. He stated he was not aware of any projects proposed in the
next 45 days that would be affected by the interim ordinance. In response to
this comment, one of the Board members stated, "Okay, that's what we want
The trial court found no support in the administrative
record for the contention that only the instant project was targeted by the
ordinance because the ordinance applies to the entire county, including
substantial portions of the Delta, and because it contemplates regulation of
other similar uses.
DW asserts the trial court's analysis was incorrect because
County's motive is revealed by looking beyond the four corners of the
ordinance, and because the other water projects to which the ordinance
ostensibly applied were either nonexistent or not actually subject to the
We fail to detect the type of discrimination denounced in
the cases cited by DW.
"City and county zoning ordinances are manifestations
of the local police power conferred by section 7 (formerly § 11) of article XI
of the state Constitution. [Citations.] Thus, upon a claim that a comprehensive
zoning ordinance unconstitutionally interferes with the use of private
property, the ordinance is to be tested not by the judges' opinions of its
wisdom or necessity, 'but solely by the answer to the question is there any
reasonable basis in fact to support the legislative determination of the
regulation's wisdom and necessity?' [Citations.] [P] The principle limiting
judicial inquiry into the legislative body's police power objectives does not
bar scrutiny of a quite different issue, that of discrimination against a
particular parcel of property. 'A city cannot unfairly discriminate against a
particular parcel of land, and the courts may properly inquire as to whether
the scheme of classification has been applied fairly and impartially in each
instance.' [Citation.] [P] Every intendment favors the legislative body's
action, which will not be overthrown in the absence of physical facts requiring
the conclusion that the ordinance is unreasonable and invalid as a matter of
law. [Citations.] Nevertheless, where 'spot zoning' or other restriction upon a
particular property evinces a discriminatory design against the property user,
the courts will give weight to evidence disclosing a purpose other than that
appearing upon the face of the regulation. [Citations.]" ( G & D
Holland Construction Co. v. City of Marysville (1970) 12 Cal. App. 3d 989,
994-995 [91 Cal. Rptr. 227].)
The County ordinance does not mandate the conclusion the
County's purpose was to unfairly discriminate against plaintiffs' project. Nor
is its application limited to the DW project. n17 The mere fact the water
storage project was the impetus for the ordinance does not mean it unfairly
discriminates against the project. The evil sought to be remedied will often
not come to the attention of authorities until a use is proposed or a permit
application is made. This is particularly true here, where no private party (as
opposed to governmental entity) had ever proposed to build a large scale
storage project of this nature in this area. The public hearings on the
ordinances do not show the County wanted to stop the DW project even as it
contemplated letting similar projects go forward, but that it was grappling
with the means to regulate the proposed new use and similar uses. This case is
to be distinguished from those cases in which a particular property was
targeted with greater restrictions than similarly situated property.
For example, in City of Orange v. Valenti, supra, 37
Cal. App. 3d 240, the challenged ordinances established special parking
requirements and required a conditional use permit for "public service
office buildings" even though the existing ordinances specifically dealt
with parking requirements and the particular use was otherwise permitted. ( Id.
at pp. 242-243.) In Valenti, the ordinance burdened the subject property
to a greater extent than similarly situated property, thus the court determined
the project was aimed solely at the plaintiffs.
In Sunset View Cemetery Assn. v. Kraintz, supra, 196 Cal. App. 2d 115 the
property at issue was being used as a cemetery. The owner applied for permits
to build an administration building, crematorium, and mortuary on the cemetery
property. ( Id. at p. 116.) This prompted the county to adopt an
emergency ordinance prohibiting " '[a]ll commercial uses and purposes
including but not limited to mortuary, sale or manufacture of monuments or
markers, sale of flowers or decorations and sale or manufacture of caskets in a
cemetery' " without a permit, even though these activities were defined by
statute as lawful cemetery purposes. ( Id. at pp. 117-121.)
The court considered the circumstances prompting adoption of
the ordinance and the speed of its adoption and concluded the adoption of the
ordinance was an arbitrary action. ( Sunset View Cemetery Assn. v. Kraintz,
supra, 196 Cal. App. 2d at pp. 122-123.) Even though the property was
suitable for cemetery uses, and had been used as a cemetery, the county was
attempting to prohibit all but a few of the property's proper uses.
Here, the permit requirement for water storage projects
applies not just to plaintiffs' property, but throughout the AG and ARM agricultural zones. During the
hearings Nomellini and the County staff told the Board that other projects were
being developed which might be subject to the ordinance. Nomellini also stated
"private development of water, water storage projects, is new in California law. We're ... starting to deal with speculation on water in California, so we'll have developers in the business. ... [Y]ou're going to have a
whole rash of applications that fall within the scope of this Use Permit, and
it will be very relevant to the County to make sure you do have a mechanism for
some review. " DW's attorney told the Board the other projects would not
be subject to the ordinance. However, there is no definitive evidence in the
record that the Board passed the ordinance believing only the DW project would
It is particularly difficult for DW to show the ordinances
were passed with an intent to discriminate against its project when it is uncertain
whether the ordinance will apply to the project. DW has not stated whether its
levees will be constructed for maximum storage above four feet above mean sea
level. If the levees are built for storage above four feet, the state will have
jurisdiction and the ordinance by its terms will not apply to DW's project.
The record reflects the Board passed the ordinance not out
of a desire to frustrate the project, but because of legitimate land use
concerns. These concerns included the loss of agricultural lands, damage to
adjacent roads and how to mitigate such losses. There was no expressed desire
to halt the project altogether for arbitrary reasons, but to enact
"safeguards in terms [of] having a voice in the process." The
ordinance was not arbitrary and was not passed for an improper motivation. It
was not improperly discriminatory.
III, IV*[NOT CERTIFIED FOR PUBLICATION]
The judgment is affirmed.
Sims, J., and Raye, J., concurred.
validity of the permit is on appeal to this court in case No. C041749.
n3 The full text of section 53091 is as
"§ 53091. Compliance of local agency
with county or city building and zoning ordinances; projects using state school
building aid; exceptions for certain water and electrical energy facilities.
"(a) Each local agency shall comply
with all applicable building ordinances and zoning ordinances of the county or
city in which the territory of the local agency is situated.
"(b) On projects for which state
school building aid is requested by a local agency for construction of school
facilities, the county or city planning commission in which the local agency is
located shall consider in its review for approval information relating to
attendance area enrollment, adequacy of the site upon which the construction is
proposed, safety features of the site and proposed construction, and present
and future land utilization, and report thereon to the State Allocation Board.
If the local agency is situated in more than one city or county or partly in a
city and partly in a county, the local agency shall comply with the ordinances
of each county or city with respect to the territory of the local agency that
is situated in the particular county or city, and the ordinances of a county or
city shall not be applied to any portion of the territory of the local agency
that is situated outside the boundaries of the county or city. Notwithstanding
the preceding provisions of this section, this section does not require a
school district or the state when acting under the State Contract Act (Article
1 (commencing with Section 10100) of Chapter 1 of Part 2 of Division 2 of the
Public Contract Code) to comply with the building ordinances of a county or
"(c) Each local agency required to
comply with building ordinances and zoning ordinances pursuant to this section
and each school district whose school buildings are inspected by a county or
city pursuant to Section 53092 shall be subject to the applicable ordinances of
a county or city requiring the payment of fees, but the amount of those fees
charged to a local agency or school district shall not exceed the amount
charged under the ordinance to nongovernmental agencies for the same services
"(d) Building ordinances of a county
or city shall not apply to the location or construction of facilities for the
production, generation, storage, treatment, or transmission of water,
wastewater, or electrical energy by a local agency.
"(e) Zoning ordinances of a county or
city shall not apply to the location or construction of facilities for the
production, generation, storage, treatment, or transmission of water, or for
the production or generation of electrical energy, facilities that are subject
to Section 12808.5 of the Public Utilities Code, or electrical substations in
an electrical transmission system that receives electricity at less than
100,000 volts. Zoning ordinances of a county or city shall apply to the
location or construction of facilities for the storage or transmission of
electrical energy by a local agency, if the zoning ordinances make provision
for those facilities." (36A West's Ann. Gov. Code (2004 supp.) § 53091,
n4 In 2002 the Legislature amplified the
exception clause by replacing the word "except" with "The
Governing board may not render a zoning ordinance inapplicable to a proposed
use of property." The change did not alter the meaning of the section.
n5 It is argued that Government Code
section 53096 is inconsistent with section 53091, subdivision (e), because it
allows a local agency to exempt water storage and transmission facilities from
zoning regulation and that would be unnecessary if section 53091 already did
so. Not so.
Section 53096 does not apply to the storage
and transmission facilities themselves. Rather, it authorizes a local agency to
exempt facilities which are integral to them. Thus the provisions are
consistent. Moreover, section 53096 applies only to "local agencies"
consistent with the construction that limits subdivision (e) to local agencies.
n6 DW's argument gives rise to the anomaly
that building ordinances but not zoning ordinances apply to private water
n7 See 57 Ops.Cal.Atty.Gen. 124 (1974); 54
Ops.Cal.Atty.Gen. 158 (1971); 56 Ops.Cal.Atty.Gen. 210 (1973); 31 Ops.
Cal.Atty.Gen. 46 (1958).
n8 An appropriative right is the right to
divert a specific quantity of water subject to appropriation and to use it in a
specific location. (Littleworth and Garner, California Water (1995) p. 39.)
n9 A reservoir in the Delta is unlike a
reservoir on land in that it is surrounded by water. When the water in the
reservoir is lower than the surrounding water the structure acts as a levee.
When the water is higher than the surrounding water the structure acts as a
n10 DW claims the phrase "another
public agency or body" refers to the Water Board. The DW has lost its
grammar book. The word "another public agency or body" refers to an
agency other than the state. The Water Board is not a public agency or body
other than the state.
n11 Local government includes the County of San Joaquin. (Pub. Res. Code, § 29725.)
n12 The Act divides Delta land into a
primary and a secondary zone. (Pub. Res. Code, §§ 29728, 29731.) The general
plan conformance requirement applies only to land in the primary zone. (Pub.
Res. Code, § 29763.5.) It is impossible to tell from this record whether DW's
project is located in a primary or secondary zone.
n13 " 'Development' means on, in,
over, or under land or water, the placement or erection of any solid material
or structure; discharge of any dredged material or of any gaseous, liquid, solid,
or thermal waste; grading, removing, dredging, mining, or extraction of any
materials; change in the density or intensity of use of land, including, but
not limited to, subdivisions pursuant to the Subdivision Map Act ..., and any
other division of land including lot splits, except where the land division is
brought about in connection with the purchase of the land by a public agency
for public recreational or fish and wildlife uses or preservation;
construction, reconstruction, demolition, or alteration of the size of any
structure, including any facility of any private, public, or municipal utility;
and the removal or harvesting of major vegetation other than for agricultural
purposes." (Pub. Res. Code, § 29723.)
n14 The Department of Water Resources has
authority over the construction, maintenance and supervision of a reservoir if
its height exceeds four feet above mean sea level. In that case the County
ordinance does not apply to the DW project. If the DW reservoirs do not reach
that height, jurisdiction over their construction likely resides in the
appropriate Delta levee district.
n15 At oral argument, DW claimed the EIR's Project Description expresses its
intent to construct the project so that the maximum storage level will be four
feet above mean sea level, thus subject to the ordinance. We are unable to find
this intent expressed in the Project Description of the May 2000 Revised Draft EIR. Nor can we find it in the Project
Background section of the September 1995 Draft EIR. Moreover, the Water Board's
decision states: "DW proposes to fill the reservoirs to 6 feet above mean
sea level." If this is the case, the project would not be subject to the
ordinance in question.
n16 Nomellini is one of the attorneys
representing County, and was one of its attorneys below.
n17 As noted, the ordinance prohibits the
construction of a subject reservoir in areas zoned residential, such as the
City of Stockton.
footnote, ante, page 128.