Preserve Country Neighborhoods v. MendocinoCountyBd. of Supervisors

Filed 6/25/07 Preserve Country Neighborhoods v. Mendocino County Bd. of Supervisors CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

The Mendocino County Board of Supervisors (County), as lead agency under the California Environmental Quality Act (CEQA), approved a use permit for a composting facility operated by Cold Creek Compost, Inc. and Martin Mileck on land owned by Charles Guntly, after certifying that a final environmental impact report (FEIR) showed the project as mitigated would have no significant effect on the environment.

Preserve Country Neighborhoods (PCN), an unincorporated association of landowners in the vicinity of the facility, petitioned for a writ of mandate challenging the FEIR and the issuance of the use permit, and several nearby property owners alleged a nuisance claim seeking damages and injunctive relief. The action was bifurcated. The court initially denied the petition for a writ of mandate on the grounds that the County proceedings complied with CEQA, and the decision to certify the FEIR was supported by substantial evidence. Later, a jury returned a verdict that found the facility to be an abatable private nuisance and awarded five property owners compensatory damages, ranging from $9,375 to $43,750. After further proceedings without a jury, the court issued an injunction designed to abate the nuisance.

In these consolidated appeals, PCN challenges the denial of its petition for a writ of mandate on the ground the FEIR did not comply with CEQA. Cold Creek Compost, Inc., Mileck and Guntly challenge certain trial court rulings, the jurys findings, and the injunction. We reject the parties arguments, and accordingly, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Charles Guntly owns a 4,000-acre ranch in the Countys agricultural range land district. Guntly leased about 12 acres in the center of the ranch to Cold Creek Composting, Inc., M & M Feed, Inc., and Martin Mileck (hereafter collectively referred to as Cold Creek). Under the County zoning ordinance, a landowner was allowed to operate a composting facility using animal waste feedstocks and any additional additives and amendments that were necessary and customary to the composting process without a use permit.[1] The County interpreted the ordinance to dispense with a use permit irrespective of the amount of animal waste processed on a parcel of land and whether or not the waste was generated on the site or imported. However, the County required a conditional use permit if the composting facility wanted to process feedstocks that were not listed in the zoning ordinance.

In 1995, Cold Creek sought a conditional use permit to operate a mixed solid waste composting facility on the acreage it leased from Guntly. Because Cold Creek wanted to include grape pomace, yard trimmings, and fly ash in its compost feed stocks, it requested and was required to obtain the conditional use permit.

In 1995, the County board of supervisors granted Cold Creek the conditional use permit after the board approved a negative declaration under CEQA. PCN, the Mendocino Environmental Center, and several individual property owners challenged the boards decision in a petition for a writ of mandate. The superior court granted the petition because petitioners had presented a fair argument that the proposed project might have significant environmental effects that required an environmental impact report (EIR). The court allowed Cold Creek to continue to operate the facility in the interim until the EIR was certified and the project was reconsidered by the board of supervisors.

Before the County reconsidered the project, Cold Creek revised it, to propose a facility design capacity of a maximum of 50,000 tons per year of incoming feedstocks, and an additional 10,000 tons per year of additives and amendments for an average of 200 tons per day of incoming feedstocks and 40 tons per day of additives and amendments. In addition to the allowed animal waste, Cold Creek intended to process other feedstock materials, including grape pomace, plant trimmings, and culled fruit; green material; grocery store food waste; restaurant food waste; sewage sludge biosolids; street sweepings (primarily from autumn leaf collections); and fishery waste.

In 1997, a draft environmental impact report (draft report), was completed by an outside consultant, Environmental Science Associates (ESA). Comments were received from the public and other governmental agencies, and public hearings were held. The planning commission staff recommended approval of the project and certification of an FEIR that was comprised of the draft report and a Response to Comments Addendum, which consisted of written and oral comments made at the public hearings and the Countys responses to them. After a public hearing on April 2, 1998, the planning commission approved the FEIR with 20 pages of adopted mitigation measures, and granted Cold Creek a use permit. The planning commission recognized that the projects environmental and neighborhood compatibility depended upon Cold Creeks day-to-day diligence in employing best management practices and ability to respond to problems as they occurred. To that end, the planning commission deleted biosolids, street sweepings, restaurant wastes and fishery wastes as allowable feedstocks. The planning commissions decision was appealed to the board of supervisors. In a public hearing on May 11, 1998, the board of supervisors denied the appeal, upheld the certification of the FEIR, and approved the use permit with certain modifications and additions to the mitigation measures as recommended by the planning commission.

PCN filed this action below, petitioning for a writ of mandate to challenge the Countys certification of the FEIR and issuance of the use permit. Several property owners who lived within two miles of the facility alleged a nuisance claim and sought damages and injunctive relief. The writ and nuisance claim were bifurcated. The court denied the petition and concluded the Countys approval process complied with CEQA and the board of supervisors decision was supported by substantial evidence. After a jury trial, the court accepted the jurys findings that Cold Creeks facility was an abatable private nuisance and that Gary Rasche, Janet Meaders, Marjorie Belt, Clark Miller, and Lula Miller, were entitled to damages ranging from $9,375 to $43,750. Thereafter, the court issued an injunction requiring Cold Creek to operate its facility in compliance with (a) recommendations of various public agencies with oversight responsibility for parts of the facility operations, and (b) certain practices specifically enumerated in the injunction that were recommended by a court-appointed expert.

PCN now appeals the denial of its petition for a writ of mandate, and Cold Creek appeals the award of damages and injunctive relief on the nuisance claim.[2]

DISCUSSION

Petition for Writ of Mandate

PCN argues the FEIR was inadequate because it did not properly define the No Project Alternative and the project baseline, and modifications to the FEIR made it too difficult to understand and to adequately inform the public and County decision makers. We see no merit to PCNs contentions.

A. No Project Alternative

A component of any environmental impact report required under CEQA is a discussion of alternatives to the project that must include an evaluation based upon no project going forward. (Foundation for San Franciscos Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 909-910.) In describing the No Project Alternative for the composting facility in this case, the draft report stated: The [Cold Creek] facility would continue composting operations as permitted under the existing land use zoning of the site. Thus, the facility would continue to compost animal manures, as well as using amendments and additives required to produce a product. However, this alternative would not include those operations proposed by Use Permit . . . that would relate exclusively to the use of the compost feedstocks other than for processing animal wastes. Biosolids would also not be a feedstock under the No-Project Alternative. [] As with the project, it is assumed that the facility design capacity would be a maximum 50,000 tons per year incoming material. The FEIR clarified that even though the facility would not be required to secure a solid waste facility permit under the No Project Alternative, the facility would still be subject to inspection and regulation by both the local enforcement agency and the North Coast Regional Water Quality Control Board.

Cold Creek thus asserted composting operations would take place under the No Project Alternative because the Guntly ranch is located in Mendocino Countys agricultural range land district, which allowed such use without a permit. This district is intended to create and preserve areas for (A) the grazing of livestock, (B) the production and harvest of natural resources, and (C) the protection of such natural resources as watershed lands from fire, pollution, erosion and other detrimental effects. Processing of products produced on the premises would be permitted as would certain commercial activities associated with crop and animal raising. (Mendocino County Zoning Code,  20.060.005.) Use types permitted in the district included animal waste processing. (Mendocino County Zoning Code,  20.060.010.)  Animal waste processing means processing of animal waste and byproducts, including but not limited to animal manure, animal bedding waste, and similar byproducts of an animal raising agricultural operation, for use as a commercial fertilizer or soil amendment and including composting operations. (Mendocino County Zoning Code,  20.032.035.) Zoning ordinances also permit non-agricultural, industry and commercial uses, other than animal waste processing or composting operations, subject to the issuance of a minor use permit, major use permit, or a major impact services and utilities use permit. (Mendocino County Zoning Code, 20.020.075, 20.060.020, 20.060.025.)

PCN argues that the FEIR misrepresented the No Project Alternative because if a use permit were not granted, Cold Creek could not operate a 50,000 ton facility using animal waste feedstock only, without CEQA review and/or the county use permit procedures required for certain activities within the agricultural range land and zoning district. PCN also asserts that the zoning ordinance allows only an animal raising agricultural operation to engage in animal waste processing and that composting may only include animal waste produced on site.

PCNs arguments are based upon an interpretation of allowable uses under the zoning ordinance that is different than the Countys interpretation. The zoning ordinance does not state that an agricultural operation may process only animal waste produced on site, or that a waste processor must be an animal raising agricultural operation. Nor does the zoning ordinance expressly include animal waste processing or composting operations as typical operations that need a use permit. Moreover, Animal Waste Processing as defined in the ordinance envisions processing byproducts for use as a commercial fertilizer or soil amendment and including composting operations. We share the trial courts assessment of this argument. Although PCNs interpretation of the ordinance is not unreasonable, it is not compelled by the language of the ordinance. Given that the Countys interpretation is also not unreasonable, we will not substitute our interpretation for that of the County. (See Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461; Christensen v. Thurber (1953) 120 Cal.App.2d 517, 519.)

PCNs argument that the board of supervisors was misled when it was informed that continued composting of animal wastes would be exempt from CEQA review if the use permit were denied, is not supported by the record. The FEIR deleted any statement that a composting facility using animal wastes only would be exempt from CEQA if the use permit were not approved. Instead, the FEIR stated that while a use permit or a solid waste facility permit from the California Integrated Waste Management Board would not be required for a composting project permitted under the zoning ordinance, the facility could be reviewed under CEQA by another governmental agency that issued a regulatory permit. At the May 11, 1998, hearing on PCNs appeal to the board of supervisors, planning commission staff confirmed that if the board did not grant the use permit, and the applicant continued to compost animal wastes, the facility could be subject to CEQA review by other agencies. The FEIR also identified the permits required for the project and the regulatory agencies that would enforce the permits, the standards, plans, and policies for each area of potential impacts, and the mitigation measures. In its reply brief, PCN argues that there was insufficient factual support for a statement in the FEIR that if the use permit were denied, Martin Mileck would continue to compost using only animal waste. However, in considering the issue of a No Project Alternative, the board of supervisors was entitled to rely on Milecks word as reported that if the use permit were denied, [t]he applicant has indicated that [Cold Creek] will continue to compost manures on the site, which the County has determined to be a land use permitted by right by this zoning.

B. Project Baseline

An EIR must also contain a description of a projects environmental setting so any changes to the area may be analyzed in context. (Cal. Code Regs., tit. 14,  15125.) This description is commonly referred to as the project baseline. (Ibid.) The draft report recognized there were groups that disagreed with the Countys determination that importation and composting of unlimited amounts of animal manure were permitted under the zoning ordinance. Therefore, the draft report analyzed the entire project against a baseline of no composting on the site. That is, the [draft report] analyzes all the impacts of the project in comparison to no composting on the proposed Guntly Ranch site. This is the most straightforward approach for this project, and also will most clearly identify the potential impacts of the proposed project in its entirety . . . . The [draft report], therefore, does not rely on the County determination that large-scale composting of animal waste is a land use right on this site.

PCN argues that isolated comments in the Response to Comments Addendum of the FEIR falsely reported there were no odor complaints and when analyzing the potential odor impacts of the proposed project incorrectly weighed the impact against the No Project Alternative rather than the baseline. In this way PCN argues the County did not appropriately provide for mitigation measures based on a baseline of no composting at the site. However, PCN overlooks that the FEIR acknowledged that [s]ubstantial off-site odor complaints due to project operations would be considered significant, and occasional odors were expected. The odor reduction mitigation measures listed in the FEIR, and made a part of the conditional use permit, provided for a progressive odor management protocol, requiring, if necessary, limiting incoming materials to certain types of feedstocks; installing odor control equipment; removing and disposing of the odiferous compounds; employing neutralizers or odorizers; rapid development of windrows or feedstock mixing piles; covering of fresh material with finished compost; forced aeration of piles; channeling of exhaust from piles through a biofilter; limiting the breakdown of feedstock mixing piles that could affect off site receptors when atmospheric conditions may carry odors to neighbors; and discontinuance of feedstock mixing piles that cause recurring validated odor complaints until an effective operating method to manage such piles is developed off site and its use approved by the County. The FEIR assumed odor would be occasionally generated from the site, and specifically that [i]ncreased composting operations could increase the concentrations of odors. The mitigation measures adopted address the potential effects of off-site odors whether compared to the baseline or to the No Project Alternative. The permit conditions are designed to mitigate significant off-site odors.

C. Adequacy of FEIR

PCN argues the FEIR was too difficult to understand and was of no utility because substantial revisions were made as result of comments to the draft report. According to PCN, the draft report was inaccurate because the responses to the comments were not indexed by subject matter or issue. In this way PCN claims the FEIR failed as an informative document. They say this was shown by statements at the several public hearings that the FEIR was difficult, and even impossible to understand, and because the decision makers and public did not receive a comprehensible revision summary until the afternoon of the May 11, 1998, hearing when the board of supervisors finally approved the project and certified the FEIR. We conclude PCNs arguments do not warrant reversal.

As noted, the FEIR is compromised of the draft report and an Addendum to it containing the written responses to comments received on the draft. The Addendum provided the Countys responses to concerns raised by the public and state and local agencies after review of the draft report. The FEIR was not recirculated for public review after the Addendum was filed because the information in the Addendum did not change the [draft report] in a way that deprive[d] the public of a meaningful opportunity to comment on a substantial adverse effect of the project or a feasible way to mitigate or avoid such an effect. . . . Although several new mitigation[s] were added, they [were] largely representative of requirements of existing agency permits or expand on mitigations found in the [draft report]. No new significant impacts or project alternatives were identified, and new information did not change the conclusions of the [draft report] regarding the severity of impacts.

All the changes to the draft report that were identified in the Addendum were summarized in a January 22, 1998, memorandum from Paul Miller, the ESA Project Manager, to Pamela Townsend of the planning commission. The Addendum also included a section that explained how it was to be used and what comments were addressed in the Addendum. Each comment was labeled with an identification number and a table of contents identified the location of comments from a particular agency or individual. Some comments and responses resulted in changes to the draft report (removed text was shown with a line through it and additions were underlined), and the index identified the different topics addressed in the Addendum with bold text to identify the significant responses that addressed a particular topic. The Addendum also described clarifications to the proposed project and the changes in the responsibilities of certain regulatory agencies for project issues since the publication of the draft report. In a single table, the projects impacts were summarized and mitigation measures identified; the mitigation measures in bold text identified those that were added in response to the comments in the Addendum.

At the May 11, 1998, hearing before the board of supervisors, members acknowledged they had all the documents that were circulated regarding the project, except for a one-page document submitted to the board on the day of the hearing, which was orally summarized by planning commission staff. Two members said that because each document had underlined and struck out text referring to the previous documents, it was difficult or impossible to identify the nature of all the mitigation measures. In response, the board chair indicated that each of the members had the documents and paperwork, that planning staff would answer any questions regarding the documents, and that board members could ask questions of the applicant and challengers who would make presentations. The board chair also agreed that before voting, the members would take a fairly decent break so that we can pull this together and take a look at it. After significant public comment and comments by Dave Evans, an engineer with the Regional Water Quality Control Board, the applicants representatives, representatives of PCN and the Mendocino Environmental Center, the board openly discussed the matter, reviewed a one-page summary of all the mitigation measures proposed in the FEIR, and extensively questioned the staff of the regulatory agencies regarding the history of the project and the efficacy of the mitigating measures proposed in the FEIR. On this record, we see no basis for reversal.

Nuisance

Cold Creek argues the judgment in favor of the individual plaintiffs on their nuisance action should be set aside for various reasons. None of them warrants reversal.

A. Private Nuisance Cause of Action

Civil Code section 3479 defines a nuisance as [a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . . A nuisance may be a public nuisance, a private nuisance, or both. (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 341; see Koll-Irvine Center Property Owners Assn. v. Countyof Orange (1994) 24 Cal.App.4th 1036, 1041.) A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. (Civ. Code,  3480.) A private person may maintain an action for a public nuisance, if it is specifically injurious to himself, but not otherwise. (Civ. Code,  3493.) Alternatively, a private nuisance is defined as every nuisance other than a public nuisance. (Civ. Code,  3481.) Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land. (Koll-Irvine, supra, at p. 1041.) [A] plaintiff may maintain a private nuisance action based on a public nuisance when the nuisance causes an injury to plaintiffs private property, or to a private right incidental to such private property. [Citation.] [Thus,] where the nuisance is a private as well as a public one, there is no requirement that the plaintiff suffer damage different in kind from that suffered by the general public. (Newhall, supra, at p. 342.)

Cold Creeks contention that the pleadings and the evidence presented a claim of only public nuisance misconstrues the record. The complaint alleged that Cold Creeks maintenance of its composting facility constitute[s] a nuisance within the meaning of Civil Code Sections 3479 and 3480, in that it is injurious to the health and well-being of plaintiffs, it is offensive to their senses, and such use by defendants interferes with the comfortable enjoyment of the plaintiffs lives and property, and [a]s a proximate result of the nuisance created and maintained by the defendant, plaintiffs have been deprived of the peace, comfort, enjoyment and quiet of their homes and real property. The complaint thus stated a cause of action for both a public and a private nuisance. (See, e.g., Fisher v. Zumwalt (1900) 128 Cal. 493, 495-499; Newhall Land & Farming Co. v. Superior Court, supra, 19 Cal.App.4th at p. 342; Melvin v. E. B. & A. L. Stone Co. (1908) 7 Cal.App. 327, 329.) In their pretrial case management statement, plaintiffs stated they were seeking damages and injunctive relief based on a public and private nuisance. Cold Creeks pretrial case management statement acknowledged that plaintiffs were seeking relief for public and private nuisance. In opening statement, plaintiffs indicated they were seeking relief for both private nuisance and a public nuisance. Because plaintiffs alleged the use and enjoyment of their property was impaired by the nuisance, they were not required to allege they suffered damage different in kind from that suffered by the general public and [they did] not lose [their] rights as . . . landowner[s] merely because others suffer[ed] damage of the same kind, or even of the same degree . . . .  (Venuto v. Owens-Corning Fiberglas Corp. (1971)22 Cal.App.3d 116, 124; see Lew v. Superior Court (1993) 20 Cal.App.4th 866, 873; Gould & Kane, Inc. v. Valterza (1940) 37 Cal.App.2d 678, 681.) Unlike the factual situations in Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, and Venuto, supra, at p. 116, plaintiffs are within the purview of the cases that have granted relief from activities that produced smoke, dust, or odors that have disturbed or prevented the comfortable enjoyment of property. (See, e.g., Fisher v. Zumwalt, supra, at pp. 495-499; Willson v. Edwards (1927) 82 Cal.App. 564, 568-569; Melvin v. E. B. & A. L. Stone Co., supra, at pp. 328-329.)

Cold Creeks reliance on Eaton v. Klimm (1933) 217 Cal. 362, is misplaced. That case involved a challenge to a board of health ruling that plaintiffs property was a public nuisance because it produced odor, dust and smoke, and noise after hours. (Id. at pp. 367-368.) Plaintiffs there argued that since only some of the persons living in the neighborhood are caused annoyance, the nuisance, if such, is necessarily a private nuisance and not a public nuisance and, therefore, the right of redress belongs only to the particular parties injured and the nuisance cannot be abated by a public body acting in the interest of the public. (Id. at p. 368.) The Supreme Court rejected the argument and observed that even though some community members were less susceptible to the offenses or may have been willing to suffer the conditions without complaint, the public nuisance did not become a series of private nuisances. (Ibid.) The Supreme Court in Eaton did not preclude or otherwise address the right of an individual property owner to separately sue on the basis of a private nuisance.

The trial court granted Cold Creeks motion for a nonsuit on the public nuisance allegations and submitted the issue of Cold Creeks liability for private nuisance to the jury. Cold Creek now argues that dismissal of the public nuisance allegations should have concluded the case in its favor for all purposes. This argument is both unpreserved for our review and is without merit.

To the extent this argument depends upon Cold Creeks assertion that plaintiffs did not seek relief based on a private nuisance, it is not persuasive. As noted, the allegations in the complaint were sufficient to allege both a cause of action for private nuisance as well as a public nuisance.

Similarly, there is no merit to Cold Creeks argument that the court should not have submitted the private nuisance claim to the jury. Cold Creek did not request a court trial on the private nuisance claim. Nor did Cold Creek object to these issues being submitted to the jury. In any event, the trial court properly allowed plaintiffs to pursue their claim for damages based on the allegations of private nuisance. Even if the complaint were based on a single theory of [nuisance], the doctrine that the plaintiff may recover only on the theory of his complaint is not followed in this state. [Citation.] . . . [It cannot] be denied . . . that the [private] nuisance issue was developed by the evidence and therefore a proper subject for instructions to the jury. (Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 317.) The suit was more than an equitable proceeding for the abatement of a nuisance, in which the jurys function would be advisory, merely. The complaint also set up a legal claim for damages for past injuries, and the plaintiff was entitled to a trial by jury on the issues thus presented. (Moore v. San Vicente Lumber Co. (1917) 175 Cal. 212, 214.) Unlike Wolford v. Thomas (1987) 190 Cal.App.3d 347, 353-354, the trial court in this case reasonably determined to sever the legal claim for damages from the request for injunctive relief.

Cold Creeks challenge to the sufficiency of evidence to support the jurys verdict is similarly not persuasive. [T]he essence of a private nuisance is its interference with the use and enjoyment of land. [Citation.] The activity in issue must disturb or prevent the comfortable enjoyment of property [citation], such as smoke from an asphalt mixing plant, noise and odors from the operation of a refreshment stand, or the noise and vibration of machinery. (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534; see San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937; Dauberman v. Grant (1926) 198 Cal. 586, 589-591.)

The five property owners awarded damages based on a private nuisance testified that the operation of the compost facility diminished their use and enjoyment of their property because the facility generated offensive odors, dust, and noise. Specifically, the sporadic offensive odors caused some plaintiffs to be confined to their homes, leave or curtail outdoor events, and not use portions of their properties; they suffered physical reactions including burning eyes, headaches, and nausea, or their homes were covered with quantities of dust that had to be removed on a daily basis. This evidence of plaintiffs annoyance and discomfort as a result of Cold Creeks interference with their specific right to use and enjoy their properties, was sufficient to support the verdict. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 293-294; Centoni v. Ingalls (1931) 113 Cal.App.192, 194-195.)

To support a judgment based on a claim that smoke, odor, or noise interfered with the comfortable enjoyment of plaintiffs property, it is not necessary that the health of plaintiff or of members of his household should have been impaired. It is sufficient if the odors, sounds, and smoke were offensive to the senses. (Judson v. L. A. Suburban Gas. Co. (1910) 157 Cal. 168, 171; see Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 337; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 464.) The sporadic nature of plaintiffs discomfort also makes no difference. It has been repeatedly and we think most properly held that where a nuisance is intermittent, owing to periodical cessation of work, variation in the direction of the wind and the like, nevertheless injunction will lie. (Judson v. L.A. Suburban Gas Co., supra, at p. 172.) Nor can we say that the annoyance suffered by plaintiff[s] was of a slight character and not such as justified the injunctive relief granted nor the damages awarded. (Id. at p. 171.)

Cold Creek also asserts that plaintiffs never proved that the problems they suffered were caused by the facility. However, plaintiffs testimony that the offensive conditions were not present before composting commenced on the Guntly ranch, and were not emanating from their own properties, neighboring properties, or nearby roads, gave the jury a reasonable basis to conclude that the offensive odors, dust, and noise emanated from the facilitys operation and the trucks using the facilitys haul road. The conflicts and internal inconsistencies in the witnesses testimony, cited by Cold Creek, do not warrant a different result. The jury may accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted. [Citations.] As [the court] said in Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 777, the jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from testimony of other witnesses thus weaving a cloth of truth out of selected available material.  (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.)

We see no merit to Cold Creeks contention that the court committed prejudicial error by allowing into evidence testimony of the reports of complaints by unidentified individuals that had been received by the Countys Department of Environmental Health, over a hearsay objection. The trial court appropriately allowed both sides to elicit testimony concerning the agencys business records, limited to the general nature of the complaint (odor, dust, or noise) and whether or not the complaint was verified by an employee of the agency. (Evid. Code,  1271, 1280.) The jury was told the reported complaints from unknown people about smell, noise, or dust, could only be considered on the issue of whether there was a nuisance, whether or not there was a big enough problemthe scope of it. But, the jury could not consider the truth of the reports, just simply whether a report was made, [and] whether it was verified or not by a staff member of the agency.

The testimony describing the complaints was not especially prejudicial because defense counsel was prevented from showing the jury the completed FEIR documents and eliciting testimony about the mandate action that upheld its certification. The court allowed counsel for both sides to elicit testimony regarding the FEIR and to read excerpts from the FEIR documents. Since some of the data was independently produced in the courtroom, the defense would want to show that they complied with all regulations and laws, and they attempted to comply with normalor good practices. However, the trial court reasonably excluded the FEIR documents because they would be too confusing to the jury, which might consider statements in the documents for their truth, and put undue emphasis on what was a small part of the case. Again, the jury was instructed to consider the evidence regarding the FEIR for a limited purpose: Some of the lawyers quoted from the EIR. . . . Youre not deciding as a board of supervisors whether this is okay or not. But . . . you can consider it as to whether or not the defendants were in compliance with certain required rules and regulations, or whether they tried to operate in a lawful manner. . . . Its not admissible in and of itself, because people say things in an EIR that are hearsay.

There was testimony about a court challenge to the board of supervisors approval of the use permit and certification of the FEIR. But the court did not permit any testimony regarding the courts ruling on the petition for a writ of mandate out of concern it might give the jury the false impression that the court approved or disapproved of the granting of the use permit, which was a matter for deliberative bodies and political resolution. We fail to see any abuse of discretion on this record.

B. Affirmative Defense Under Civil Code Section 3482.6

At the end of plaintiffs case, Cold Creek moved for a nonsuit pursuant to Civil Code section 3482.6, that reads in relevant part: No agricultural processing activity, operation, facility, or appurtenances thereof, conducted or maintained for commercial purposes, and in a manner consistent with proper and accepted customs and standards, shall be or become a nuisance, private or public, due to any changed condition in or about the locality, after it has been in continuous operation for more than three years if it was not a nuisance at the time it began. Cold Creek argued plaintiffs failed to demonstrate that its facility did not fall within the protection afforded by the statute.

Cold Creek contended its agricultural processing activity had been in existence for more than three years without a nuisance lawsuit ever filed against it, had operated continuously for at least 30 days of agricultural processing operations per year, and had operated under the proper and accepted customs and standards applicable to composting operations. The court initially observed that the requisites of Civil Code section 3482.6 were not elements of plaintiffs prima facie case, but rather were elements of an affirmative defense to be proved by Cold Creek. The court then considered whether plaintiffs evidence established as a matter of law that a nuisance action was precluded because Cold Creek had been in continuous operation for more than three years, if it was not a nuisance at the time it began. The court denied Cold Creeks motion for a nonsuit and submitted the issue of the affirmative defense to the jury when it determined that there was evidence from which the jury could conclude the facility was operating as a nuisance within the first three years of its operation. The jury rejected the affirmative defense because Cold Creek failed to establish that it had maintained and operated its facility in a manner consistent with the proper customs and standards in compliance with the state and federal statutes and regulations.

Because motions for nonsuit raise issues of law, we review de novo the courts ruling denying Cold Creeks motion for a nonsuit, applying the same standard used by the trial court. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) Initially, we agree with the trial court that none of the elements of Civil Code section 3482.6 were elements of plaintiffs nuisance claim. Thus, in order to be granted a nonsuit, Cold Creek had the burden of showing that plaintiffs evidence inadvertently established uncontrovertible proof of the affirmative defense under section 3482.6 (Abeyta v. Superior Court (1993) 17 Cal.App.4th 1037, 1041; italics added.) Cold Creek failed to meet its burden.

We will focus on the statutory requisite that the facility was operated in a manner consistent with proper customs and standards, which means compliance with all state and federal statutes and regulations relating to the condition or effect alleged to be a nuisance. (Civ. Code,  3482.6, subd. (a), (e)(3).) In light of this specific statutory language, Cold Creek was required to produce evidence of the state and federal statutes and regulations that governed the facility. It did not do so. Cold Creeks reliance on case law interpreting section 3482.5, a similar, but not identical, statute is misplaced. That section precludes nuisance actions against certain agricultural activities. ( 3482.5, subds. (a)(1), (2) & (e).) Under section 3482.5, a defendant is only required to establish that its agricultural activity is operated in a manner consistent with proper and accepted customs and standards, as established and followed by similar agricultural operations in the same locality. (Id. at subd. (a)(1), (2).) But under section 3482.6, the defendant must show that its operation is in compliance with all state and federal regulations. In the absence of such a showing, the affirmative defense is not proven.

We are not persuaded that the courts refusal to allow testimony on the EIR was prejudicial because it had the effect of preventing Cold Creek from presenting evidence on the applicable regulations. As we previously observed, defense counsel was permitted to ask witnesses to read portions of the EIR documents, and extensively examine them regarding the EIR process. We fail to see how any of the courts rulings in any way precluded Cold Creek from presenting evidence that it complied with all federal and state statutes and regulations.

Relying on isolated portions of testimony, Cold Creek claims that none of the witnesses from regulatory agencies testified that Cold Creek was operating outside the customs and standards of the composting industry, that several witnesses testified that Cold Creek operated within the industry standards, and that Cold Creeks expert testified that Cold Creek operated above the customs and standards of the industry and the facility was well-managed. However, a nonsuit may be granted on the basis of an affirmative defense only when plaintiffs evidence conclusively establishes the defense as a matter of law. On a motion for a nonsuit, Not only [are we] precluded from weighing the evidence of the defendant against that of the plaintiff, but the law does not permit [us] to judg[e] . . . the credibility of the witnesses. . . . [We are] bound to accord to the testimony of the witnesses produced by the plaintiffs all of the value attaching to the testimony of a witness who is to be believed. (Lehmann v. Mitchell (1952) 109 Cal.App.2d 719, 724; see Mitchell Camera Corp. v. Fox Film Corp. (1937) 8 Cal.2d 192, 197.)

In considering the motion for nonsuit, we do not look at the testimony submitted by the defense. But even if we did, Cold Creeks expert testimony did not establish as a matter of law that Cold Creek complied with state and federal statutes and regulations. The expert merely testified that based on his observations of the facility on two occasions, the facility was managed according to standards, which were not otherwise specified. Contrary to Cold Creeks contention, expert testimony is not conclusive in the sense that it must be accepted as true. (Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 95.) Expert evidence is really an argument of an expert . . . and is valuable only in regard to the proof of the facts and the validity of the reasons advanced for the conclusions. [Citation.] The weight to be given to the opinion of an expert depends on the reasons he assigns to support that opinion. (People v. Martin (1948) 87 Cal.App.2d 581, 584.)

Cold Creek also overlooks testimony and documentary evidence, submitted by plaintiffs, that shows: Cold Creek had not complied with the terms of its use permit or the specific requests of the regulatory agencies that it institute certain odor and dust suppression mitigating measures; Cold Creeks purported mitigating measures were not working; staff of the regulatory agencies knew that Cold Creek was not following mitigating measures; and a hearing was planned on Cold Creeks noncompliance. There was ample basis for the jury to conclude that Cold Creek had not complied with all applicable state statutes and state regulations and federal statutes and federal regulations governing the operation of the agricultural processing activity, operation, facility, or appurtenances thereof with respect to the condition or effect alleged to be a nuisance. Consequently, Cold Creeks arguments challenging the denial of its motion for nonsuit based on Civil Code section 3482.6 are without merit.

C. Injunctive Relief

Because plaintiffs alleged and proved valid private nuisance causes of action and Cold Creek was not entitled to a nonsuit on its affirmative defense under Civil Code section 3482.6, we reject Cold Creeks arguments that injunctive relief was barred because this was a public nuisance that was a preexisting agricultural operation protected under section 3482.6.

We are also not persuaded by Cold Creeks argument that plaintiffs request for injunctive relief is barred by Code of Civil Procedure section 731a. That section reads: Whenever any city, city and county, or county shall have established zones or districts under authority of law wherein certain manufacturing or commercial or airport uses are expressly permitted, except in an action to abate a public nuisance brought in the name of the people of the State of California, no person or persons, firm or corporation shall be enjoined or restrained by the injunctive process from the reasonable and necessary operation in any such industrial or commercial zone or airport of any use expressly permitted therein, nor shall such use be deemed a nuisance without evidence of the employment of unnecessary and injurious methods of operation. Nothing in this act shall be deemed to apply to the regulation and working hours of canneries, fertilizing plants, refineries and other similar establishments whose operation produce offensive odors. (Code Civ. Proc.,  731a.) As we read section 731a of the Code of Civil Procedure, by its concluding sentence it clearly declares that in such cases as this its limitations do not apply. (People v. A & M Castings, Inc. (1957) 154 Cal.App.2d Supp. 881, 883 [evidence of nauseating odors emanating from defendants plant bars defendants reliance on  731a]; see 13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity,  165, p. 491.) Even assuming the statute applied, section 731a denies injunctive relief only as long as the enterprise does not employ unnecessary and injurious methods of operation. (Christopher v. Jones (1964) 231 Cal.App.2d 408, 411.) Here, Cold Creek had the ability to comply with certain required odor and dust control mitigation measures but failed to do so. The court could therefore reasonably impose injunctive relief because Cold Creek was using unnecessary methods in operating its composting facility. (Venuto v. Owens-Corning Fiberglas Corp., supra, 22 Cal.App.3d at p. 130; see Gelfand v. OHaver (1948) 33 Cal.2d 218, 220-221.)

Plaintiffs request for injunctive relief is also not precluded under Health and Safety Code section 41705 that exempts contaminants emanating from certain compost facilities regulated by local enforcement agencies from the abatement authority of state and district air resources agencies. (See Sen. Com. on Environmental Quality, Analysis of Sen. Bill No. 88 (2001-2002 Reg. Sess.), April 16, 2001; see Stats. 2001, ch. 424,  1, as amended Stats. 2002, ch. 664,  144; see Pub. Resources Code,  43209.1 [enforcement actions regarding complaints pertaining to compost facility odors], Cal. Code Regs., tit. 14,  17863.4 [odor impact minimization plan].) Health and Safety Code section 41705 has no relevance to a private persons right to abate a private nuisance.

Finally, Cold Creeks argument that the injunction constitutes an excessive restraint on its composting activities has no merit. To address plaintiffs major complaints regarding offensive odors and dust, the court appointed a neutral expert, chosen by the parties, to formulate specific remediation measures to be incorporated into the injunction. The expert submitted a series of reports proposing specific remedial provisions. In the injunctions first paragraph, the court accepted Cold Creeks argument that it should not have to implement mitigation measures that would conflict with county, state, and federal regulations and clarified that the injunction was intended to ensure Cold Creek would undertake and maintain the odor control measures set forth herein and the dust control measures which have been recommended by the public agencies having jurisdiction to regulate such activity. The injunction also contained the specific mitigation measures recommended by the court-appointed expert, and incorporated by reference the experts reports in order to notify and inform Cold Creek of the reasons for the measures.

Cold Creek asked the court to reconsider the terms of the injunction because its own expert concluded there might not be enough mass in the compost piles to generate sufficient temperatures for the composting process and there was a question of economic feasibility using piles sizes or windrow sizes required by the injunction. The court deferred this request because the injunctions terms were based on the recommendations of the court-appointed expert chosen by the parties as an eminent authority, and Cold Creek could seek modification if the terms of the injunction actually were not workable. The injunction provides: The court reserves jurisdiction to alter or modify the injunction terms as may be necessary or appropriate to accomplish the purposes of the injunction. We see no reason to believe the court would not entertain a motion to modify or dissolve the injunction if its continued enforcement in the future in its present form would effect an injustice. (Woods v. Corsey (1948) 89 Cal.App.2d 105, 113; see Berkeley Lawn Bowling Club v. City of Berkeley (1974) 42 Cal.App.3d 280, 291.)

DISPOSITION

The appeals from the injunction filed on January 6, 2005, are dismissed. The judgment filed on March 11, 2005, is affirmed. The parties shall bear their own costs.

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Siggins, J.

We concur:

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McGuiness, P.J.

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Parrilli, J.

[1] Additives are materials mixed with feedstock or active compost to adjust moisture level, carbon to nitrogen level or porosity to create a favorable condition, and include water, urea or fertilizers, but not feedstocks. Amendments are materials added to stabilized or cured compost to provide attributes for certain compost products, such as product bulk, product nutrient value, product pH, and soils blend, but exclude feedstocks. Amendments and additives are differentiated from feedstocks by generally consisting of noncomposable, inorganic or previously composted materials. Gypsum, ash, lime, rock phosphate, or commercial fertilizers (consisting of previously composted material) are typical amendments or additives.

[2] The trial court issued a variety of judgments and an injunction during the litigation. The March 11, 2005, judgment, which incorporates the earlier judgments and injunction, is the final appealable judgment that disposes of all causes of action in the complaint and petition for a writ of mandate. We therefore dismiss the parties appeals from the January 6, 2005, injunction, because it was not the final judgment.