WILLHITE, Acting P. J.
This case was brought by petitioners Citizens for Communities Preservation, Inc., Shiuh-Ming Ellis, and Howard Wang (collectively, Citizens), challenging the approval by respondent City of Industry (City) of a plan for the construction of a football stadium and related development (the stadium project) by real parties in interest Majestic Realty Co. and Industry East Business Center, LLC (collectively, Majestic).
The property at issue in this lawsuit is a 592-acre site owned by the Industry Urban Development Agency and leased to real party in interest Industry East Business Center. In 2004, City approved a plan of development for the site (referred to as the IBC project) that called for up to 4.8 million square feet of built space, including 2,787,000 square feet of office uses, 1,268,000 square feet of retail uses, and 633,000 square feet of industrial uses. As part of the approval process, a water supply assessment (WSA) was prepared in 2004, in accordance with section 10910.
In April 2008, Industry East Business Center filed an application with City for a revised plan of development, i.e., the stadium project. The stadium project includes a 75,000-seat National Football League stadium; a 115,000 square foot training facility with a gym, locker rooms, staff offices, and four full-sized practice fields; a 100,000 square foot outpatient medical center; and almost 3 million square feet of undetermined commercial and office uses, including office buildings, retail stores, restaurants, a live theater, and a movie theater complex.
City determined that the stadium project may have significant impacts on the environment, and that a supplemental environmental impact report (EIR) was required (City had originally certified an EIR for the IBC project in 2004). City did not, however, request that a new WSA be prepared for the stadium project. City certified the supplemental EIR and approved the stadium project in February 2009, subject to certain conditions.
A month later, Citizens filed the instant action, seeking a writ of mandate commanding City to set aside its certification of the supplemental EIR and its approval of the stadium project, and to prepare an adequate EIR. The petition for writ of mandate alleged six causes of action: the first four alleged CEQA violations, the fifth alleged a violation of the Water Code, and the sixth alleged a violation of the Seismic Hazards Mapping Act (Pub. Resources Code, § 2690 et seq.).
The trial court sustained without leave to amend Majestic's demurrer (joined by City) to the sixth cause of action on September 10, 2009. That same day, the California Assembly passed AB81; the bill passed the Senate a month later, and was signed by the Governor on October 22, 2009. AB81 relates solely to the stadium project. As described in the Legislative Counsel's Digest, the bill exempts the stadium project from CEQA and from any legal requirement concerning the content of a general plan or consistency with a general plan, and prohibits those requirements from resulting in the invalidation of City's approval of the stadium project. (Legis. Counsel's Dig., Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.).) The bill also provides that it applies both prospectively and retroactively to any approvals by City with respect to the stadium project and any pending causes of action. (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 4.)
A week after AB81 was signed, Citizens dismissed the first four causes of action of its petition, i.e., all of the CEQA claims. The following month, City filed a motion for judgment on the pleadings directed at the only remaining claim, the fifth cause of action alleging that City violated section 10910 by relying on the WSA prepared in 2004 for the original IBC project rather than requesting a new WSA for the stadium project. City argued that the fifth cause of action should be dismissed because (1) section 10910 requires a WSA only if the project at issue is subject to CEQA, and AB81 exempts the stadium project from CEQA; and (2) Citizens cannot challenge the WSA without an underlying CEQA claim, but Citizens dismissed all of its CEQA claims in light of AB81. Majestic joined City's motion.
The trial court granted City's motion on both grounds. Citizens appeals from the resulting judgment.
Citizens contend the trial court erred in relying upon AB81 because, according to Citizens, AB81 required City to make and certify certain findings before the CEQA exemption would take effect, and City presented no evidence that it had done so. Citizens also argue that, even if AB81 applied, the trial court erred in finding that a cause of action based on an alleged violation of section 10910 could not be sustained without an underlying CEQA claim. With regard to the former contention, we disagree that the effectiveness of the CEQA exemption was dependent upon City's certification. But even if it was, City passed a resolution (after the trial court granted the motion for judgment on the pleadings) in which City made and certified the findings at issue; therefore any error by the trial court in applying the exemption when granting City's motion was harmless.
In December 2008, the Governor issued a proclamation declaring a fiscal emergency and called the Legislature into special session. (Legis. Counsel's Dig., Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.).) AB81 was enacted in the third special session of the 2009-2010 Legislature. The bill consists of seven sections, three of which are relevant to this appeal.
In the first section, the Legislature makes various findings regarding the economic problems faced by California and its citizens, and the ways the state and local governments are addressing those problems. The findings identify the stadium project as a project that is expected to "provide much needed economic activity in the Los Angeles region." (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 1, subd. (e).) The Legislature also found (1) that City prepared an EIR in 2004 and a supplemental EIR in 2008, and certified the supplemental EIR in 2009 (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 1, subds. (h), (i), (j)); (2) that the site of the stadium project is served by an existing Metrolink station that is less than one-half mile from the project site (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 1, subd. (l)); (3) that the supplemental EIR included an analysis of greenhouse gas emissions associated with the stadium project (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 1, subd. (i)); and (4) that in approving the project, City imposed conditions of approval that "restrict the number of events that may be held in the stadium to not more than 45 events in each calendar year, of which a maximum of 30 may be at full stadium capacity, and require compliance with the mitigation measures and project design features listed in the [EIR] or supplemental [EIR] for the stadium [project]" (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 1, subd. (j)).
The third section of AB81 relates to the CEQA exemption. Section 3, subdivision (a), states that CEQA "does not apply to any activity or approval, necessary for or incidental to, the development, planning, design, site acquisition, subdivision, financing, leasing, construction, operation, or maintenance of a stadium complex and associated development included in the same project or approval . . . for which an application for the project or approval was submitted on or before January 31, 2009, to the City of Industry, and that meets all of the following requirements: [¶] (1) The supplemental [EIR] for the stadium [project] was prepared and certified by the City of Industry within five years before the effective date of the act adding this section. [¶] (2) A Metrolink station is located, as of the effective date of the act adding this section, within one-half mile from the project site for the stadium [project]. [¶] (3) The supplemental [EIR] for the stadium [project] included an analysis of greenhouse gas emissions. [¶] (4) The conditions of approval approved by the City of Industry, or the mitigation measures in the supplemental [EIR] for the stadium [project] restricts the number of events that may be held in the stadium complex to not more than 45 events in each calendar year." (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 3, subd. (a).) Subdivision (b) of section 3 states that City, "upon determining that the requirements of paragraphs (1) to (4), inclusive, of subdivision (a), have been met, shall certify satisfaction of those requirements." (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 3, subd. (b).) Finally, subdivision (c) provides that, "[n]otwithstanding the exemption provided by this section," City must require the stadium project to comply with mitigation measures contained in a mitigation monitoring and reporting program adopted by City in connection with the stadium project. (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 3, subd. (c).)
Section 4 of AB81 provides that the act "applies prospectively and retroactively to any approvals by [City] with respect to the stadium [project], and also applies prospectively and retroactively to any causes of action and claims that are pending as of the effective date of this act and for which no final nonappealable judgment has been entered prior to the effective date of this act."
Citizens argue that section 3 of AB81 included "preconditions" that had to be met before the CEQA exemption would go into effect. They assert that, under subdivision (b) of section 3, City was required to determine and certify that the four requirements listed in subdivision (a) of section 3 were satisfied before the stadium project was exempted from CEQA. The language of the bill does not support Citizens' argument.
The CEQA exemption is set forth in subdivision (a) of section 3 of the bill: it states that CEQA does not apply to a "stadium complex and associated development" that meets four specified requirements. (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 3, subd. (a).) In section 1 of the bill, the Legislature found that the stadium project at issue meets all four requirements. (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 1, subds. (h), (i), (j), (l).) Although subdivisions (b) and (c) of section 3 directed City to take some further actions, there is nothing in the language of those subdivisions that purports to condition the CEQA exemption for the stadium project on the satisfaction of those subdivisions. Therefore, we conclude that the CEQA exemption took effect as soon as AB81 went into effect.
But even if section 3, subdivision (b), could be interpreted as a precondition to the effectiveness of the CEQA exemption, we take judicial notice of the fact that City complied with subdivision (b) on January 28, 2010, when it passed Resolution No. 2301, certifying that the requirements of AB81, section 3 had been satisfied. Although this resolution was not passed until a few weeks after the trial court ruled on the motion for judgment on the pleadings (but before judgment was entered), Citizens are not prejudiced by the timing of the resolution. That is because, under section 4 of AB81, the CEQA exemption applies both prospectively and retroactively. (Assem. Bill No. 81X3 (2009-2010 3rd Ex. Sess.) § 4.) Therefore, even if the trial court granted City's motion prematurely (although we do not hold that it did), City would have been entitled to the same ruling as soon as Resolution No. 2301 was passed.
Citizens argue that, regardless of the CEQA exemption provided in AB81, they may maintain their action based on City's alleged violation of section 10910. They contend that AB81 does not provide an exemption from compliance with section 10910 because it does not address that section. They also contend that they may maintain an action for violations of section 10910 separate from a CEQA action because City already certified the supplemental EIR and approved the stadium project. We need not address their second contention because their first contention fails.
Citizens are correct that AB81 did not expressly exempt City from complying with section 10910 with regard to the stadium project. But that is because no express exemption was necessary. Section 10910, by its terms, applies only to projects that are subject to CEQA. Subdivision (a) of section 10910 states: "Any city or county that determines that a project, as defined in Section 10912, is subject to the California Environmental Quality Act . . . shall comply with this part [i.e., Part 2.10 of Division 6 of the Water Code, which includes section 10910]." Because AB81 exempted the stadium project from CEQA, both prospectively and retroactively, the project is not "subject to the California Environment Quality Act," and therefore compliance with section 10910 is not required. Thus, the trial court properly granted City's motion for judgment on the pleadings as to the sole remaining cause of action based upon alleged violations of section 10910.
The judgment is affirmed. City and Majestic shall recover their costs on appeal.
We concur:
MANELLA, J.
SUZUKAWA, J.