Beck Development Co. v. Southern Pacific Transportation Co. (44 Cal. App. 4th 1160, 1996)

Opinion

SPARKS, Acting P. J.

In these consolidated appeals we consider issues arising out of the subsurface contamination of land. Among other points, we consider the nature and propriety of a moratorium recommendation by the state agency responsible for toxic substance control. We also examine the relationship between the laws dealing with hazardous waste properties and those governing land use regulation. Finally, we consider public and private nuisances, the statute of limitations on nuisances and the various rules for determining whether a nuisance is permanent or continuing.

The property in question belongs to the Beck Development Co., Inc. (Beck), and is located in the City of Tracy (the City) in San Joaquin County. The contamination occurred through the ownership and use of the property by Southern Pacific Transportation Company (Southern Pacific) prior to 1945. Beck purchased the property in 1985 in order to subdivide and develop it for residential purposes, but has been inhibited by the Department of Toxic Substances Control (the Department) and the City due to the subsurface contamination. As a result of these inhibitions, Beck filed suit against the Department, the City, Southern Pacific and others. Beck sought a series of declarations concerning its property, an extraordinary writ, general damages in the sum of $1,440,000 and other relief. In its cause of actions against the Department, Beck sought a peremptory writ of mandate commanding the Department “to exercise its discretion and determine whether [Beck’s] real property is hazardous or nonhazardous property, and if hazardous, the appropriate mitigation measures or remedial action necessary to permit utilization of [Beck’s] real property for residential purposes." As to the City, Beck sought an identical writ commanding the City to accept for filing, file, and process Beck’s proffered tentative subdivision map. As to Southern Pacific, Beck sought a mandatory injunction requiring it to abate the nuisance by remediating the site and an award of incidental damages.

After bifurcated court trials, the following judgments were entered: (1) in favor of Beck and against the Department granting a writ of mandate compelling the Department to accord Beck a public hearing on whether its land should be designated hazardous waste property (Health & Saf. Code, § 25220 et seq. [hereafter undesignated section references are to the Health and Safety Code]); (2) in favor of the City and against Beck on Beck’s claim that the City must accept and consider its application for approval of a tentative subdivision map; and (3) in favor of Beck and against Southern Pacific for abatement of a nuisance and incidental damages of $1,205,613.

We shall modify the judgment in favor of Beck against the Department and then affirm as modified. We shall reverse the judgment in favor of the City and against Beck and remand with directions to the trial court to grant declaratory relief in favor of Beck. Finally, we shall reverse the judgment in favor of Beck and against Southern Pacific and remand with directions to enter judgment in favor of Southern Pacific.

Factual and Procedural Background

The genesis of this litigation began in 1926. In that year Southern Pacific acquired a large block of real property, including the realty involved here. Around 1926, Southern Pacific constructed a large, oval-shaped, concrete oil reservoir on the property.

The reservoir was approximately 1,178 feet in length, 583 feet in width, and about 31 feet deep. It had an oil storage capacity of about 3 million barrels. It occupied about 16 acres and was constructed so that the bottom 8 feet were below surface level. In order to accomplish this, Southern Pacific excavated soil from the center and then used the soil to construct levees around the outside walls that protruded from the ground. The walls and floor were made from reinforced concrete approximately six inches thick. A roof was constructed over the reservoir which was supported by timbers and covered with silver tar paper. The reservoir was surrounded by eight towers with attached lightning rods. While the reservoir was in use, more than 3,000 barrels of unspecified fuel oil were applied to the levees for erosion control.

From about 1926 until 1945, Southern Pacific used the reservoir for storing “Bunker C” oil. Bunker C oil is a residual fraction of crude oil. It remains within crude oil residue after the removal of lighter fractions such as naphtha gases, gasolines, jet fuels, kerosines, diesel fuels, and motor oils. Bunker oil is the last fraction that is removed before the crude oil residue consists of solids such as paraffins, waxes and asphalt. Since the refining process is designed to separate and remove lighter and more volatile fractions at each step, the residue after each step should contain fewer solvent chemicals that may give rise to health concerns. The process is not perfect, however, and lower fractions may still contain some potentially injurious constituents. Also as a result of the refining process, each fraction will be more viscous than earlier fractions. Bunker C oil, as one of the lowest fractions, is extremely viscous. In the record it was variously described with terms such as: molasses in January; thick and tar-like; gelatinous; and most commonly “gooey.” In any event, Bunker C oil is relatively immobile and must be heated to a significant degree in order to be moved through a pipeline and prior to burning as fuel.

The Bunker C oil stored in the reservoir was used by Southern Pacific as fuel for its locomotives and, during World War II, by the United States Navy as fuel for its ships. By 1945 Southern Pacific had switched to diesel oil as locomotive fuel and it closed down its Bunker C oil reservoir. Although most of the Bunker C oil was removed from the reservoir, a small residue remained.

In 1945, Southern Pacific sold the parcel of property which included the site of the reservoir to John Hachman for $4,500, excepting therefrom the mineral rights on or under the property. Hachman later acquired additional property from Southern Pacific so that, in all, he owned 72 acres surrounding the oil reservoir. Hachman dismantled the roof which covered the reservoir for the purpose of reselling the timber which, due to war rationing, was readily salable. After the dismantling was completed, the reservoir sat open and unused for a number of years. Although Hachman is deceased, his sons recalled that water accumulated in the bottom of the reservoir and the water level would rise in the summer during periods of agricultural irrigation and would drop in the winter. A small layer of oil floated on the top of the water in the tank.

In 1953 a fire started inside the reservoir. The fire was a noted event in the community at the time. It sent plumes of dark smoke into the air which were visible from miles away. The fire burned for a couple of days before burning itself out. Hachman’s son, also named John Hachman, testified that it appeared the fire was consuming tumbleweeds, timber and tar. After the fire there was ash and water remaining in the reservoir with a small amount of residue near the pump station that appeared “dried up just the same as our stuff, that our streets are paved with.” After the fire Hachman collapsed the walls of the reservoir into the center and bulldozed the soil from the levees back into place in order to bury the old reservoir about eight feet under the surface.

In 1956 or 1957, Hachman leased the 72-acre parcel to Mitsuo Kagehiro for farming purposes. There were some large blocks of concrete from the reservoir remaining on the surface of the land and Kagehiro moved them to the side of the property where they remained until after this litigation commenced. Kagehiro had heard about the old storage reservoir and knew there was concrete under parts of the land, but he never experienced any problems with the land and over the years forgot about the reservoir. In 1959 Kagehiro and his wife, Elsie, purchased the land from Hachman. Kagehiro farmed the property for the next 25 years.

By 1984 the City of Tracy was considered a prime location for residential development due to its proximity to the Bay Area. The City took certain steps to prepare for expansion, such as providing for streets, sewerage facilities and schools. It annexed and rezoned former agricultural properties, including the Kagehiro property, for residential development. Beck, a large, established real estate developer from the Stockton area, wanted to participate in the expansion and began looking for property to purchase. Eventually Beck settled on the Kagehiro property, which it purchased from the Kagehiros for $25,000 per acre. The Kagehiros were not aware the old storage reservoir could be a problem, had forgotten about it, and did not tell Beck about it.

Around the same time another developer, known as Renown, purchased and developed property to the northeast of the Kagehiro tract. It turned out that the Renown tract had at one time been the site of a large oil storage facility owned by Standard Oil and that six smaller oil tanks belonging to Associated Pipelines had been located nearby. After development of the Renown property, the new residents began to experience problems related to the Standard Oil facility, such as oil rising to the surface of their yards. This caused members of the City’s planning department to investigate the area and, upon viewing an old aerial photograph, they discovered the prior existence of the Southern Pacific reservoir on Beck’s land.

The City advised Beck of the prior existence of the oil reservoir on its property. Beck hired American Environmental Management Corp. (American Environmental) to investigate. American Environmental conducted a preliminary investigation through which it confirmed the existence of the buried concrete reservoir and possible soil contamination, and it recommended a testing plan to resolve issues thus presented. Beck directed American Environmental to proceed with the testing plan.

In the meantime, Beck sought to expand its acreage for development. To this end, it purchased additional neighboring properties from Southern Pacific for a price of $17,000 to $18,000 per acre, and obtained a quitclaim deed from Southern Pacific for the mineral rights on the Kagehiro tract. Eventually Beck assembled a tract of approximately 107 acres which included the 72 acres it acquired from the Kagehiros with the 16 acres that overlie the buried reservoir.

In late 1986, American Environmental produced a report on its groundwater investigation. It had drilled three shallow groundwater monitoring wells outside and downgradient from the reservoir and had found no contamination. American Environmental recommended quarterly monitoring of the groundwater for another year in order to take into account any seasonal changes in the groundwater.

In April 1987, the City advised Beck that before approving development of the property it would require that Beck obtain approvals from the Air Resources Board, the Solid Waste Management Board, the Regional Water Quality Control Board, and the San Joaquin County Department of Health. The San Joaquin County Department of Health advised Beck that it lacked the expertise to evaluate the property and suggested that it seek approval from the State Department of Health Services. This was acceptable to the City.

Of the various agencies whose approvals were required by the City, only one has prevented development of Beck’s property and is at issue here, namely, the State Department of Health Services. Representatives of Beck met with personnel from the Department and were informed that Beck’s property had such a low priority that it likely would not be evaluated for at least 10 and possibly 20 years. Beck was told that it could develop the property but that if problems were later discovered remedial action could be required which could include removal of structures. Assuming Beck would otherwise have proceeded in the face of this admonition, that was not an option because the City would not approve development without clearance from the Department.

About this time several changes occurred in the circumstances of Beck and its Tracy property. The Tracy Unified School District designated a portion of the property for acquisition and future use for high school purposes. The City commenced an action in eminent domain to acquire a portion of the property for utility purposes. And it appears that Beck, whose principals consisted of a father and two sons, was going through internal strife because one of the sons wished to split up the company. In view of these circumstances and in the process of division of the company, Beck decided to sell the property rather than develop it.

In early 1987 Beck reached a tentative agreement with a buyer known as the Jonathon Group for the sale of the property at a price of $48,000 per acre. But the agreement fell through when the Jonathon Group indicated that it did not wish to accept responsibility for the property that contained the old storage reservoir. In September 1987, Beck sold approximately 62 acres of its property to the Jonathon Group at a price of $55,000 an acre. Beck retained about 45 acres, including the property which contained the storage reservoir.

In the meantime American Environmental continued performing quarterly monitoring tests of the groundwater and filed reports advising that no detectable levels of contaminants were discovered. The Department hired Radian Corporation (Radian) to prepare a preliminary assessment. Radian reported that soil samples indicated soil contamination in the southern portion of the site. Radian viewed groundwater as the greatest potential exposure pathway but also viewed that pathway as minimal because the shallow groundwaters in the area are of poor quality and are not utilized through drinking water or municipal wells and, in any event, no groundwater contaminants were detected in the monitoring wells. Radian viewed soil contamination in the reservoir as a potential problem due to the possibility of excavation by and exposure to future residents.

In February 1988, Beck filed a formal application with the Department for a nonhazardous site designation. The Department advised that it did not have sufficient information and consequently discussions between Beck and the Department continued. In June 1988 the Department entered into a contract with Beck pursuant to which Beck would hire a consultant to perform an evaluation of the site and, for a fee of $39,700, the Department would provide review and oversight. The contract provided that when the Department deemed that adequate information had been presented by Beck or its consultant, it would, within 60 days, provide an evaluation whether the site posed any significant or potential hazard to human health or the environment. At various times Beck agreed to extend this contract and to pay additional moneys for departmental review and oversight.

Beck hired American Environmental to conduct a site characterization. American Environmental reported that tests on surface soils within the perimeter of the reservoir indicated the presence of a small quantity of hydrocarbons and recommended further testing. Soil bore samples from eight sites within the perimeter of the reservoir showed bottom depths of seven and one-half to nine feet, no contamination to a depth of five feet, and varying levels of oil contamination below five feet in each of the bore samples. When American Environmental attempted to sink a deep monitoring well outside and to the northwest of the reservoir, it encountered an area of oil saturation at the 12.5- to 15-foot level. American Environmental abandoned plans for a deep well in favor of soil borings. Two of five soil borings outside the perimeter of the reservoir showed oil contamination at the fifteen-foot depth. American Environmental believed this to be the result of the operation of a transfer pipeline in connection with the reservoir. American Environmental drilled a fourth shallow monitoring well and located it near to and downgradient from the area of soil saturation. No contaminants were detected in this or any of the three existing monitoring wells.

In April 1989, the Department refused to make a determination based upon American Environmental’s work and report. The Department cited two concerns: the possibility of surface soil contamination by pesticides and heavy metals from agricultural practices, and the failure to establish a deep groundwater well.

In May 1989, Beck hired Kleinfelder, Inc. (Kleinfelder), to perform further testing and evaluation. Kleinfelder installed a deep monitoring well near the fourth shallow well that had been installed by American Environmental, and purged the four existing shallow monitoring wells. Sampling from the five monitoring wells failed to detect total petroleum hydrocarbon contamination. Kleinfelder also took surface soil samples from within and without the area of the reservoir and determined that heavy metal concentrations were consistent with native soils in the area.

In September 1989, the Department rejected the Kleinfelder report. The Department complained that the report was not prepared pursuant to a work plan approved by the Department. It noted that samples from the monitoring wells were tested for total petroleum hydrocarbons and asserted that testing should have been performed for aromatic volatile organics and polynuclear (or polycyclic) aromatic hydrocarbons (PAH’s). And it said that a health risk assessment of all contaminants found at the site should be performed.

At this time Beck submitted a tentative subdivision map to the City but was advised that it would not be considered until the Department acted. Kleinfelder then prepared a work plan for performance of a health risk assessment and the Department approved the plan. The resulting report stated that groundwater testing had not detected the presence of aromatic volatile organics or PAH’s and concluded that the risk associated with groundwater was negligible. Health risks associated with the surface soils were evaluated from the standpoint of a person who would live on property overlying the reservoir for a period of 70 years and were found to be below levels regarded as significant. Subsurface soils were evaluated from the standpoint of a construction worker installing a swimming pool who would be exposed to soils at the seven- or eight-foot level for eight hours a day for four weeks. Kleinfelder concluded that the lifetime cancer and noncancer risks to such a person were insignificant or negligible.

After preparation of the risk assessment but before the Department had considered it, Beck reached an agreement to sell the City 4.8 acres of the property for an extension of Schulte Road and a drainage channel. The City paid Beck $368,425 for this portion of the property. The extension of Schulte Road and the drainage channel traverse the portion of the property that overlies the buried reservoir.

In December 1990, the Department responded to Kleinfelder’s health risk assessment. It appeared satisfied with the assessment with respect to heavy metals and pesticides in the surface soils. But it complained of the failure to conduct additional groundwater testing for PAH’s and aromatic volatile organics. It noted that testing had been concentrated in areas overlying the reservoir and suggested that contamination could be present in other areas. Finally, the Department disagreed with Kleinfelder’s analysis of the health risks posed by the subsurface soils. In the Department’s view, the appropriate methodology would be to assume that the subsurface soils were in fact on the surface, and to calculate the health risk to a 70-year resident from the undetected PAH’s that it required Kleinfelder to assume were present. The Department’s methodology produced a significantly increased health risk from the soils at the seven- or eight-foot depth.

In June 1991, the Department clarified its response to the Kleinfelder health risk assessment. It concluded that the land lying outside the perimeter of the oil reservoir poses no threat under any identified land use and that residential development of that portion of Beck’s land should be permitted, provided that anyone undertaking development be prepared to mitigate any condition discovered during development. The Department expressed continuing concern with the land overlying the reservoir but said that development could proceed if: (1) uncertainty regarding carcinogenic PAH’s is resolved by additional testing; (2) the soil immediately above the reservoir is remediated by excavation and treatment; or (3) use restrictions are placed on the property.

Shortly after the clarification letter, the Tracy Unified School District obtained an order condemning a portion of Beck’s remaining property. Through this order the school district obtained approximately 14.9 acres of the property and paid approximately $122,000 per acre to Beck. The school district’s property abuts the Schulte Road extension and overlies the northern portion of the buried reservoir. This left Beck with approximately 26 acres of which approximately 6 acres overlie the reservoir.

Kleinfelder continued testing by using a backhoe to obtain four soil samples from depths where the soils contacted the reservoir floor. These samples were tested for PAH’s with negative results. A sample from the deep monitoring well was tested for PAH’s and semivolatile organics with negative results. In July 1991, Klienfelder submitted a report concluding that lifetime cancer risks were negligible and below levels of regulatory concern.

In the meantime Beck, through its attorney, took the position that the Department’s imposition of conditions for development represented a determination that the property is a hazardous waste property and Beck demanded a hearing pursuant to section 25222. The Department responded by sending a letter to the City advising that there may be a significant health risk if the property overlying the reservoir is developed for residential use and recommending that the City impose a moratorium on the construction of single-family residences and on the construction of multiple-family residences until the soil is remediated or additional testing and improved analytical techniques establish that PAH’s do not pose a significant risk.

Klienfelder continued its work on the property. With the participation of a representative of the Department, it used a backhoe to dig five trenches from which nine samples were obtained from the five- to eight-foot and depth. These samples, except sample No. 67916, were subjected to testing were included in a health risk assessment. That assessment concluded that the cancer risk from the soils ranged from zero if the soil remained under the surface to the 10-6 range if the soil were brought to the surface and an individual remained on the property for 30 years as a child and adult.

Sample No. 67916 was a chunk of thick, tarry, fibrous material discovered on the floor of the reservoir. It resembled a roofing shingle but was much thicker, about two inches in depth. A roofing nail discovered embedded in the sample led to speculation that it may have been roofing material dropped into the reservoir when the roof was dismantled and melded by the subsequent fire. The Department took the position that no determination could be made with respect to the Beck property without an analysis of sample No. 67916. Kleinfelder submitted an addendum to its earlier report in which it concluded that risk levels associated with sample No. 67916 were negligible. The Department disagreed with that assessment, but noted that the material in sample No. 67916 appeared only as a thin layer on the concrete floor of the reservoir and could be removed before development. The Department also concluded that PAH’s would be present within the reservoir but not at levels which would pose health risks.

While these events were occurring, the City was proceeding with its plans to build a road and drainage ditch across the property overlying the reservoir. To this end the City hired consultants, including Harding-Lawson Associates, to perform a site analysis. Harding-Lawson Associates found detectable levels of oil and grease in excavated soils along the proposed route for the road and ditch. It recommended that soils removed from the site during construction be isolated for proper disposal and that the drainage ditch be lined. The City hired SCS Engineers to determine whether the soils at the construction site were hazardous and based upon SCS Engineers’ work, the City sent the Department a self-certification letter declaring that the soils from the site were nonhazardous. The Department responded that although the soils were nonhazardous, the elevated oil and grease levels might require remediation which would be regulated by the Regional Water Quality Control Board or the San Joaquin County Department of Health.

During the construction of Schulte Road and the drainage ditch over the buried reservoir, the City excavated a pit in which it encountered a layer of oil saturation at a depth of about 16 feet. The layer of oil contamination was about four feet below broken concrete pieces that appeared to be part of the reservoir. It consisted of a three-inch layer lying above a layer of silty clay and below a layer of light, sandy soil.

SCS Engineers was directed to prepare a risk assessment. It took samples of the contaminated soil, which were found to be nontoxic and nonhazardous. The risk to human or animal life from the material was found to be negligible. The potential for migration of the material in the ground was found to be minimal due to its extremely viscous nature. SCS Engineers recommended that the pit be filled with stone and clean soil and that the drainage ditch be lined. The City proceeded as recommended under the supervision of the Regional Water Quality Control Board.

While all this was happening, Beck was proceeding with litigation against various parties involved with the land. In June 1987 it filed a complaint against Southern Pacific and others. In July 1990 Beck amended its complaint to add causes of action against the Department and the City. All of the claims of the parties and issues which became involved in this litigation through the complaint, amended complaints, and various cross-complaints, were resolved prior to trial with the exception of Beck’s cause of action against Southern Pacific for nuisance and its causes of action against the Department and the City. As to Southern Pacific, Beck sought an injunction requiring it to abate the nuisance by remediating the site and an award of incidental damages. As to the Department, Beck sought an order requiring that it be accorded a statutory hearing on the status of its property or, in the alternative, specific performance of its agreement to make a determination with respect to the site. As to the City, Beck sought declaratory relief providing that the City must accept and consider its application for approval of its subdivision map. The cause of action against Southern Pacific and the causes of action against the governmental entities were severed for separate trials.

The causes of action against the governmental entities were tried before Judge Garrigan. The court held that the Department must accord Beck a noticed public hearing on whether the property is or is not a hazardous waste site. It held that Beck is not presently entitled to a judicial determination on that question but will be entitled to judicial review of the decision reached after the public hearing. The court denied relief against the City.

The cause of action against Southern Pacific was tried before Judge Callahan. The court held that the site constitutes a continuing public nuisance. It ordered Southern Pacific to determine and define the lateral and vertical extent of petroleum hydrocarbon contamination of the soil and groundwater of the site. It further ordered Southern Pacific to remediate the contamination pursuant to standards of the Department, the Regional Water Quality Control Board, and the City, so that the property may be developed as a single-family residence subdivision. The court awarded Beck $1,205,613.18 as damages for special injury from the existence of the public nuisance. The court retained jurisdiction to enforce its judgment and to award additional damages to Beck to the date of remediation.

We consolidated the appeals generated by these judgments. In this consolidated appeal we are concerned with an appeal by the Department from the judgment in favor of Beck; a cross-appeal by Beck with respect to that judgment; an appeal by Beck from the judgment in favor of the City; and an appeal by Southern Pacific from the judgment in favor of Beck. We consider each of these appeals and cross-appeals separately.

Discussion

I. Beck v. The Department

A. The Department’s Appeal

In its judgment on the causes of action by Beck against the Department, the court determined that Beck was not entitled to specific performance of its contract with the Department but was entitled to a noticed public hearing pursuant to section 25220 et seq. The Department raises a single issue in its appeal. It contends that its decisions under section 25221.1 are purely discretionary and consequently the court cannot mandate it to hold a hearing. In the Department’s view, in ordering a hearing “the court usurped [its] judicial function, acting in a legislative capacity to alter the duties and responsibilities set forth in the Health and Safety Code.” Beck counters that section 25221.1 imposes mandatory duties on the Department which are enforceable by mandate. We hold that the trial court properly issued its writ of mandate.

Chapter 6.5 of division 20 of the Health and Safety Code constitutes the Legislature’s exercise of the state’s police power with respect to hazardous waste control. Chapter 6.5 was originally enacted in modest form in 1972. (Stats. 1972, ch. 1236, § 1, pp. 2387-2393.) Through the years it has been considerably expanded and now represents a lengthy statutory scheme for the control of hazardous wastes. For the most part the provisions of chapter 6.5 are prospective in nature, dealing with such things as the storage, transportation, treatment and disposal of hazardous wastes and the regulation of persons, businesses, and facilities involved with hazardous wastes. The alleged contamination of Beck’s property occurred through a land use which was terminated more than 40 years before any dispute arose and long before the enactment of chapter 6.5. Accordingly, our focus here is narrowed to issues concerning the effect the prior land use may have on Beck’s current land use plans. The statutory provisions governing these issues are contained in article 11 of chapter 6.5 (article 11), entitled “Hazardous Waste Disposal Land Use.”

Article 11 is concerned with property that may be found to be “hazardous waste property.” Section 25117 defines a hazardous waste, in relevant part, as: “A waste or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may either: [¶] (A) Cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness. [¶] (B) Pose a substantial present or potential hazard to human health or environment when improperly treated, stored, transported, or disposed of, or otherwise managed.” A hazardous waste property is defined in section 25117.3, subdivision (a), as “land which is either of the following: [¶] (1) Any hazardous waste facility or portion thereof, required to be permitted pursuant to this chapter, which has a permit for disposal from the department or has submitted an application for such permit. [¶] (2) A portion of any land designated as a hazardous waste property pursuant to Section 25229 where a significant disposal of hazardous waste has occurred on, under, or into the land resulting in a significant existing or potential hazard to present or future public health or safety.”

The basic mechanism in article 11 for the protection of the public from the dangers posed by hazardous waste property is found in land use restrictions to be recorded in the chain of title with respect to such property. (§§ 25220, subd. (d), 25222.1, 25229, subd. (b), 25230, 25235.) If use restrictions are imposed, then a new contrary use of the land will not be permitted unless the person proposing such use follows procedures for obtaining a variance or for removing the designation of the land as a hazardous waste property. (§§ 25232, 25233, 25234.)

Unless a landowner and the Department agree to the imposition of land use restrictions, such restrictions may be imposed only through a decision by the director after a noticed public hearing conducted in compliance with procedures set forth in article 11 and, so far as practicable, in accordance with the Administrative Procedures Act. (§§25222.1, 25223-25229; Gov. Code, § 11500 et seq.) In this respect article 11 clearly distinguishes between the role of the Department and the role of the director. The Department is assigned the role of obtaining, analyzing, and evaluating information, after which it may make a “determination” whether the land should be designated as hazardous waste property. (§ 25220, subd. (a)(1).) The director is assigned the role of making a “designation” of the land as hazardous waste property, which may be done only after a determination by the Department and a noticed public hearing. (§ 25220, subd. (a)(2).) Thus, a determination by the Department that particular land should be designated as hazardous waste property serves the function of an administrative complaint that commences the hearing process. At the hearing, the Department bears “the burden of proving that hazardous waste has been deposited on, under, or in the land and that the hazardous waste creates a significant existing or potential hazard to present or future public health or safety on the hazardous waste property.” (§ 25228, subd. (a).)

Whether particular property should be designated as hazardous waste property may come under consideration by the Department in three ways. First, such an inquiry may be instigated by the Department whenever it has reasonable cause to believe that the land may be a hazardous waste property. (§ 25220, subd. (b).) In such an instance, the Department may request pertinent information from any person who owns, leases or occupies the land, or who has information relating to the land. (§ 25220, subd. (b).) Second, such an inquiry may be instigated by any person who is the owner, lessor, or lessee of the land. (§ 25221, subds. (a) & (b).) Such a person may apply for a determination when he or she knows or has reasonable cause to believe that the land may be a hazardous waste property, and must apply for a determination when he or she knows or has reasonable cause to believe a significant disposal of hazardous waste has occurred on, under, or into the land and he or she intends, within one year, to construct or allow the construction of a building or structure that will be used for a purpose for which use restrictions may be imposed. (§ 25221, subds. (a) & (b).) Third, a city or county that has probable cause to believe that any land within its jurisdiction is a hazardous waste property may apply to the Department for a determination. (§ 25221, subd. (c).)

Of particular significance here is section 25221.1, which lists the five options open to the Department after it receives an application. Section 25221.1 provides: “Whenever the department receives an application pursuant to Section 25221, it may request information pursuant to Section 25220 to determine whether the land should be designated as hazardous waste property or border zone property. Upon evaluating all pertinent available information, the department may do any one or more of the following: [¶] (a) Issue a statement that, based on existing documents and other information available to the department, there is no currently known hazard. [¶] (b) Recommend to local land use authorities that they place a moratorium on any new land uses specified in paragraph (1) of subdivision (a) of Section 25232, if the department suspects that the land is hazardous waste property, or a moratorium on the construction or placement of any building or structure which is intended to be used for any of the purposes specified in paragraph (1) of subdivision (b) of Section 25232, if the department suspects that the land is border zone property. [¶] (c) Collect additional information, including sampling, monitoring, and analytical data for the purpose of making a determination as to whether the land should be designated as hazardous waste property or border zone property pursuant to Section 25229. [¶] (d) Make a determination as to whether the land should be designated as hazardous waste property or border zone property pursuant to section 25229. [*]D (e) Enter into an agreement pursuant to Section 25222.1 [for the imposition of use restrictions with the consent of the owner].”

As we have noted, in this case, Beck contemplated developing its property for single-family residence purposes and, upon learning of the prior existence of the oil reservoir, filed an application with the Department for a determination whether the property should be designated a hazardous waste property. When the Department informed Beck that it would not consider its property in the indefinite future, Beck entered into a contract with the Department whereby it would pay the Department to provide oversight and review and Beck would hire consultants to investigate and evaluate to the end of obtaining a determination. Over the next several years Beck was unable to satisfy the Department and eventually the Department suggested further testing, remediation, or the placement of use restrictions on the property. Beck took this suggestion as a determination and demanded a hearing. However, the Department declined to consider this to be a determination and refused to accord Beck a hearing. Instead, the Department advised the City to impose a moratorium on Beck’s proposed development of the property. The Department then purported to wash its hands of the matter and refused to take further action. The Department maintains that it could do this by virtue of the provision in section 25221.1 that provides that the Department “may do any one or more” of the five listed actions. The Department maintains that the choice of which, if any, of the listed actions to take is discretionary and cannot be controlled by the courts through mandate.

Although it is true that section 25221.1 states that the Department may take any one or more of five actions, the moratorium option, as permitted in subdivision (b), is inconsistent with finality. “Moratorium” is defined as; “[A] legally authorized period of delay in the performance of a legal obligation or the payment of a debt ...[;] waiting period set by some authority: a delay officially required or granted ...[;] a suspension of activity: a temporary ban on the use or production of something . . . .” (Webster’s Third New Internal. Diet. (1971) p. 1469; accord, see Black’s Law Diet. (6th ed. 1990) p. 1009; Ballentine’s Law Diet. (3d ed. 1969) p. 815; 58 C.J.S. (1948) p. 1208; see also Ins. Code, §§ 1044, 12620.) A moratorium is by its nature an interim or temporary measure which contemplates future resolution or performance of issues and matters held temporarily in abeyance. The essentially interim or temporary nature of a moratorium is contrary to the Department’s position that section 25221.1 permits it to elect a moratorium as an end in itself.

In determining whether section 25221.1 permits the Department to utilize a moratorium as a temporary measure or as an end in itself, we are constrained to conclude that the moratorium option in subdivision (b) can be construed to be only a temporary measure in aid of the Department’s role in making a determination with respect to particular property. To conclude otherwise would violate fundamental principles of due process of law. We deal here with an exercise of the state’s police power. While the police power is broad, its exercise cannot be divorced from the requirements of procedural due process. (Wisconsin v. Constantineau (1971) 400 U.S. 433, 436 [27 L.Ed.2d 515, 518, 91 S.Ct. 507].) “It is significant that most of the provisions of the Bill of Rights are procedural, for it is procedure that marks much of the difference between rule by law and rule by fiat.” (Ibid.) “Under its police power to protect public health and safety [the state] may destroy private property without liability to the property owner, but when it does this it must afford the owner due process of law.” (Friedman v. City of Los Angeles (1975) 52 Cal.App.3d 317, 321 [125 Cal.Rptr. 93].)

In considering the applicability of due process principles, we must distinguish between actions that are legislative in character and actions that are adjudicatory. In the case of an administrative agency, the terms “quasi-legislative” and “quasi-judicial” are used to denote these differing types of action. Quasi-legislative acts involve the adoption of rules of general application on the basis of broad public policy, while quasi-judicial acts involve the determination and application of facts peculiar to an individual case. (Horn v. County of Ventura (1979) 24 Cal.3d 605, 613 [156 Cal.Rptr. 718, 596 P.2d 1134]; People v. Lockheed Shipbuilding & Constr. Co. (1973) 35 Cal.App.3d 776, 781 [111 Cal.Rptr. 106].) Quasi-legislative acts are not subject to procedural due process requirements while those requirements apply to quasi-judicial acts regardless of the guise they may take. (Horn v. County of Ventura, supra, 24 Cal.3d at p. 612; People v. Lockheed Shipbuilding & Constr. Co., supra, 35 Cal.App.3d at p. 781.) When a quasi-judicial action is to be taken, procedures must be available to provide, at a minimum, notice and an opportunity for a hearing. (Menefee & Son v. Department of Food & Agriculture (1988) 199 Cal.App.3d 11 A, 781 [245 Cal.Rptr. 166]; Friedman v. City of Los Angeles, supra, 52 Cal.App.3d at p. 321.) The Department’s attempt to restrict the use of Beck’s property based upon facts peculiar to that property is unquestionably quasi-judicial in nature and must comport with requirements of due process.

The moratorium option, if construed as an end in itself as urged by the Department, would be glaringly deficient when measured against due process standards. In essence, due process principles are intended to guarantee a fundamentally fair decisionmaking process. (People v. Ramos (1984) 37 Cal.3d 136, 153 [207 Cal.Rptr. 800, 689 P.2d 430]; Menefee & Son v. Department of Food & Agriculture, supra, 199 Cal.App.3d at p. 781.) At a minimum, due process requires notice and an opportunity for a hearing, and the other safeguards that may be required vary with the circumstances. (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 307 [138 Cal.Rptr. 53, 562 P.2d 1302]; Menefee & Son v. Department of Food & Agriculture, supra, 199 Cal.App.3d at p. 781.) But the moratorium option in section 25221.1 provides no safeguards. It may be imposed on a mere suspicion. It makes no provision for such things as notice, the right to be heard, evaluation by an impartial decision maker, or review. In short, the moratorium option, if construed as an end result of the Department’s participation, wholly fails to comport with due process principles.

It is no answer to assert, as the Department does, that the Department only recommends a moratorium and it is up to the local land use authority to actually impose a moratorium. First, it is certain that the Legislature intended local land use authorities to pay heed to the Department’s recommendation for a moratorium. Second, even if in a particular case the local land use authority rejected such a recommendation, the land would still be disparaged by the Department’s pronouncement. In either case the landowner’s ability to sell or make use of the land would be inhibited. In Wisconsin v. Constantineau, supra, 400 U.S. at pages 436 and 437 [27 L.Ed.2d at pages 518-519], it was held that a person’s interest in her good name, reputation, honor, or integrity was sufficient to invoke due process requirements before the government could pin an unsavory label upon her. Beck has a sufficient, legally recognized and protected interest in its property and business to warrant similar due process protection. (See Ramon Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1130-1131 [225 Cal.Rptr. 120]; Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 549 [216 Cal.Rptr. 252]; Lowell v. Mother’s Cake & Cookie Co. (1978) 79 Cal.App.3d 13, 17 [144 Cal.Rptr. 664, 6 A.L.R.4th 184].)

In addition, the argument advanced by the Department is contrary to long-standing authority. In Joint Anti-Facist Refugee Committee v. McGrath (1950) 341 U.S. 123 [95 L.Ed. 817, 71 S.Ct. 624], associations included in a list of alleged subversive organizations disseminated by the Attorney General complained of their inclusion in the list without an opportunity for a hearing. Although the justices agreed on little else, the majority held that the associations were entitled to due process with respect to their inclusion on the list regardless whether inclusion imposed any direct demands upon them. (See also Bantam Books v. Sullivan (1963) 372 U.S. 58 [9 L.Ed.2d 584, 83 S.Ct. 631].) In Endler v. Schutzbank (1968) 68 Cal.2d 162 [65 Cal.Rptr. 297, 436 P.2d 297], the Commissioner of Corporations, while refusing to accord the plaintiff a hearing on untested charges, embarked on a course of conduct intended to dissuade employers from employing the plaintiff. The commissioner made the same argument that the Department makes here: that he merely offered advice and that the actual decision whether to employ the plaintiff was left to the prospective employers. The Supreme Court found the proposition to be settled that “whenever governmental action based upon a stigmatizing judgment injures an individual by inducing others not to deal with him, he may challenge in court the government’s refusal to accord him a full hearing on the disputed facts which form the basis of its action.” (Id. at p. 178.)

The due process deficiencies we have been discussing are all the more conspicuous when the moratorium option is viewed in light of all of the provisions of article 11. There the Legislature made careful provision for a full panoply of due process safeguards before property is designated hazardous waste property. Thus, in addition to adopting, insofar as practicable, the procedures of the Administrative Procedures Act, article 11 includes specific provisions applicable to designation hearings intended to ensure that affected persons have notice, an opportunity to present evidence, a written decision by the director with the Department bearing the burden of proof, and judicial review by administrative mandate. (§§ 25222-25231.) If, after a hearing, property should be designated hazardous waste property and use restrictions are imposed, then article 11 includes provisions by which affected persons can apply later for a variance or for removal of the designation. (§§ 25232-25234.) In contrast to these provisions, the moratorium option, as construed by the Department, effectively restricts the use of the land for the indefinite future upon a mere suspicion and without any procedural safeguards. It would be anomalous to conclude that while carefully incorporating due process safeguards into the use restrictions that result from a hazardous waste designation, the Legislature intended that the Department could indefinitely preclude the use of property without any procedural safeguards through the imposition of a temporally indefinite moratorium.

Finally, the Department’s interpretation of the moratorium option cannot stand in light of the legal requirements imposed on local agencies with respect to land use. As we shall explain in our discussion of Beck’s cause of action against the City, local agencies have the legal authority to impose a development moratorium, but only on an interim basis and only after compliance with certain procedural safeguards. (See Gov. Code, § 65858.) Such a measure may be employed for the purpose of permitting investigation of the need for formal amendment of the local agency’s general or specific plans or zoning ordinances. (Gov. Code, § 65868.) It would border on the absurd to conclude that the Legislature gave the Department the authority to recommend that a local agency impose such a moratorium, but did not intend to require the Department to proceed with further consideration of the circumstances that would support the imposition of such an urgent, interim measure.

In view of these factors, we reject the Department’s contention that the moratorium option in section 25221.1, subdivision (b), is a final action which may be taken by the Department exclusive of any other action. To so construe the statute would be inconsistent with the concept of a moratorium, would violate fundamental principles of due process, would be inconsistent with the Legislature’s clear intent to provide affected landowners with full due process safeguards before their use of their property is restricted by a hazardous waste designation, and would put local agencies in the position of being advised to impose interim urgency measures for no apparent purpose. We hold, therefore, that the moratorium option is an interim measure to preserve the status quo pending a prompt investigation and determination by the Department.

It remains to be determined whether mandate is a proper remedy under these circumstances. We conclude that it is. In doing so, we reject the Department’s contention that mandate cannot lie because it is not required to do anything by the terms of article 11. In the Department’s view, upon receiving an application for a hazardous waste determination it may take any of the five actions set forth in section 25221.1, or it may do nothing at all. The Department argues that since it may do nothing at all, mandate cannot be issued to compel it to take any of the actions set forth in section 25221.1.

In article 11, the Legislature has created a scheme by which certain persons and local governments may apply for a hazardous waste determination and certain other persons, including those in Beck’s position, are required to make such an application. (§ 25221.) It would seem anomalous to argue that the Legislature intended that the Department could totally ignore the applications it thus receives. But anomaly aside, we need not determine whether in some cases the Department may do nothing, for in this case that ship has long since sailed. After receiving Beck’s application, the Department undertook, and imposed upon Beck the expenses of, a lengthy investigation of the property. Eventually the Department attempted to restrict Beck’s use and development of the property by recommending a moratorium. The imposition of a moratorium, whether temporary or not, is a sufficient interference with Beck’s property interests to entitle it to due process protection, which includes the right to an adjudicatory hearing. (Kash Enterprises, Inc. v. City of Los Angeles, supra, 19 Cal.3d at p. 308.) Having progressed this far, it is too late for the Department to fall back on its claim that it could have done nothing.

A petition for a writ of mandate is an appropriate remedy for compelling an administrative agency to provide a fair hearing where one has been refused. (See Vollstedt v. City of Stockton (1990) 220 Cal.App.3d 265, 269 [269 Cal.Rptr. 404]; Forrest v. Trustees of Cal. State University & Colleges (1984) 160 Cal.App.3d 357, 359-360 [206 Cal.Rptr. 595].) We agree with the trial court that Beck is entitled to a determination by the Department and that mandate should be issued to compel the Department to make such a determination. In one respect, however, we find the judgment to be too narrow. In essence, the trial court’s decision treats the Department’s recommendation for a moratorium as a determination that the property should be designated as hazardous waste property, thus triggering the right to the hearing procedures set forth in the code. In fact, the problem here is that the Department has refused to make a determination, and has instead attempted to restrict the use of Beck’s property through the moratorium option. The determination the Department must make is whether to issue a statement that there is no currently known hazard or to pursue use restrictions through designation hearing procedures. (§ 25221.1, subds. (a) & (d).) The choice of which course of action to take is a matter committed to the Department. Accordingly, the judgment granting a writ of mandate should compel the Department to make a reasonably prompt determination, and then to either issue a no-known-hazard statement or proceed with hearing procedures, as required by the determination it makes. We shall modify the judgment in this respect and then affirm the judgment as modified.

B. Beck’s Cross-appeal

In its cross-appeal, Beck asserts that it is entitled to specific performance of its agreement with the Department. In the agreement by which Beck agreed to pay the Department to provide review and oversight, it was provided that “[w]hen the department deems that adequate information has been presented by Beck or its consultant concerning the Site, the department shall, within sixty (60) days, provide Beck, the City of Tracy, the Tracy Unified School District and the San Joaquin Local Health District with an evaluation as to whether the site poses any significant or potential hazard to human health or the environment.”

Although Beck sought specific performance of this agreement, the particular form of the relief it was demanding was less than clear. The trial court took Beck’s claim as an effort to obtain an order that the Department provide a particular, and favorable, determination on its application. The court concluded that Beck is not, and never could be, entitled to control the Department’s determination through contract.

On appeal Beck points to a letter it received from the Department’s Region One chief, James T. Allen, in which Allen indicated that under the agreement the Department would make a determination whether significant risks to the public or the environment would be associated with Beck’s intended uses and, if so, would recommend mitigation measures that would permit the proposed use. Beck asserts that, among other things, the Department has failed to propose mitigation measures.

To the extent that Beck’s cause of action for specific performance may be construed as an effort to obtain a particular determination from the Department, we agree with the trial court that such relief would be improper. The Department’s duties under article 11 are an exercise of the police power, which is a fundamental aspect of sovereignty and which cannot be abdicated, delegated, or controlled by contract. (See Laurel Hill Cemetery v. City and County (1907) 152 Cal. 464, 475-476 [93 P. 70].) The Legislature has created a statutory scheme for the exercise of the police power with respect to hazardous waste property and that scheme cannot be thwarted by contract arrangement.

To the extent that Beck’s cause of action seeks to compel the Department to make a determination without controlling the result of that determination, it is cumulative to the conclusion we have reached with respect to its cause of action for mandate. We have already determined that Beck has a right, enforceable by mandate, to a determination by the Department, after which it will either obtain a letter stating there is no currently known hazard or will be entitled to a designation hearing as provided by statute. Since issuance of the writ of mandate is an adequate legal remedy which will provide Beck with all the relief it could obtain through an order for specific performance, it is unnecessary to duplicate the relief thus granted. (Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.3d 571, 575 [193 Cal.Rptr. 409].)

To the extent that Beck’s claim seeks to require the Department to recommend mitigation measures, we conclude that it is premature. As Beck points out, up to this point in time any effort at remediation would have been at best difficult in view of the ever-shifting and ill-defined concerns expressed by the Department with respect to the property. However, this is one of the problems that the procedural safeguards required by due process and the statutory designation hearing scheme are intended to resolve. Beck is entitled to a specific determination by the Department whether the property is a hazardous waste property, notice of the reasons therefor, a hearing at which the Department bears the burden or proof, and a written decision by the director containing express “findings of fact based upon the issues presented, including the reasons for this designation, the substances on, under, or in the land, and the significant existing or potential hazards to present or future public health and safety, . . .” (§ 25229, subd. (b).) Such a decision must be sufficient to inform Beck of exactly what warrants the imposition of use restrictions on its property. (See Topanga Assn, for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515 [113 Cal.Rptr. 836, 522 P.2d 12].) If use restrictions are imposed following such a procedure, then Beck will know what it must address in order to seek a variance or the removal of the use restrictions and at that time it may seek advice on how to remediate the specific identified problems.

II. Beck v. The City

As we have recounted, at the same time Beck was attempting to obtain a departmental determination whether its land should be designated hazardous waste property, it was also attempting to commence the process for subdividing the land by submitting an application for approval of a tentative subdivision map to the City. The City has refused to undertake the procedures for considering Beck’s application and has instead insisted that the application is incomplete and need not be accepted or considered until a determination by the Department is obtained. Beck sought, but was denied, a declaration that the City must accept and consider its application for approval of its tentative subdivision map. We agree with Beck that it is entitled to relief and shall reverse the judgment in this respect.

Consideration of this question requires a brief overview of our statutory scheme for land use regulation by local governments. In this respect there is a hierarchy of land use controls that may be adopted and implemented by a city which progress from general policies to particular land use decisions with respect to individual parcels.

Every city is required to adopt a comprehensive, long-term general plan for the physical development of the city. (Gov. Code, § 65300.) The general plan and elements and parts thereof must be an integrated, internally consistent and compatible statement of policies for the city. (Gov. Code, § 65300.5.) The adoption of a general plan is a legislative act which must be accomplished by resolution, with public participation, and after at least one public hearing. (Gov. Code, § 65350 et seq.) A general plan may be amended in the same manner as required for adoption of the plan, pr