Hearing Denied June 5, 1974.
Proceeding in administrative mandamus to review and set aside action
of county approving three unrelated construction projects. The Superior
Court of San Bernardino County, Margaret J. Morris, J., denied petition
as to two of projects and plaintiffs appealed. The Court of Appeals,
Tamura, J., held that failure of dissatisfied members of public to seek
administrative appeal from decision approving map did not preclude such
members from maintaining court action on ground that they had failed to
exhaust administrative remedies; that project was validated where substantial
sums had been spent in reliance upon permits for grading and construction
and substantial contractual liabilities for construction and material had
been incurred prior to filing of mandate petition which was pending prior
to effective date of validating act; that evidence supported finding that
proposed subdivision was not inconsistent with applicable general and specific
zoning plans for area and that procedure followed in preparation and consideration
of the EIR and the EIR itself were validated by statute.
Young, Henrie & McCarthy and John C. McCarthy, Pomona, for plaintiffs and appellants.
Stanford D. Herlick, County Counsel, and Paul A. Grube, Jr., Deputy County Counsel, San Bernardino, for defendant and respondent San Bernardino County Bd. of Supervisors.
Alexander, Inman & Fine, Maurice C. Inman, Jr., and Bryan Kravetz, Beverly Hills, for real party in interest Marvin Wilson.
Reid, Babbage & Coil and Enos C. Reid, Riverside, for real party in interest Kaiser-Aetna.
TAMURA, Associate Justice.
Plaintiffs instituted a proceeding
in administrative mandamus to review and set aside actions of the County
of San Bernardino approving three unrelated construction projects in the
Lake Arrowhead area of the county. The main attack upon the projects was
the alleged failure of the county to comply with requirements of the California
Environmental Quality Act of 1970 (CEQA; Pub.Resources Code, s 21000 et
seq.) Plaintiffs appeal from the judgment and order denying the petition
as to two of the projects, the Marvin Wilson and the Kaiser-Aetna projects.
FN1 Unless otherwise indicated all section references in this opinion are to the Public Resources Code.Each project involves different facts and legal issues. We shall, therefore, consider them separately.
Plaintiffs filed their initial petition on December 1, 1972. On December 15, 1972, they filed an amended petition which, insofar as the Wilson project was concerned, alleged in substance: On September 7, 1972, the county approved a tentative tract map for a planned development of 55 multiple residential units on a three acre parcel owned by Wilson; on November 2, 1972, the county issued a grading permit; as of December 1, 1972, no building permit had been issued and construction had not commenced; the impact of the development would be detrimental to the surrounding environment; the county's actions were invalid in that no environmental impact report was made or considered or, if made, was inadequate; and the tentative tract map for the proposed development is inconsistent with the adopted general plan and zoning for the area, rendering its approval invalid.
Upon the filing of the amended petition,
plaintiffs obtained a restraining order and an order to show cause re preliminary
injunction. The county and Wilson answered the petition and filed a declaration
and memorandum of authorities in opposition to the order to show cause.
The matter was argued and submitted on the pleadings, declarations and
record of the proceeding before the county planning commission.
FN2 The court's minutes recite that the declaration filed by Wilson was received in evidence over plaintiffs' objection. Since plaintiffs do not complain of the propriety of the court's ruling, that issue is not before us. It should be noted, however, that while an application for a preliminary injunction may properly be determined on affidavits (see Code Civ.Proc., s 527), where factual issues are presented in a mandate proceeding, those issues should normally be resolved by the introduction of evidence according to rules governing ordinary civil trials. (See Cal. Administrative Mandamus (Cont.Ed.Bar) s 13.14, p. 225.)The pertinent facts are not in dispute. Chronologically, they may be summarized as follows:
In the spring of 1972 Wilson commenced negotiations to acquire the three acre parcel in question. A dilapidated 38 unit motel cottage complex which had been closed since October 1971 was located on the property. The property had been zoned R--3 for a number of years. Wilson employed a firm of engineers to prepare a site development plan for a 55 unit planned residential development and a tentative tract map.
On September 7, 1972, following a public hearing, the planning commission unanimously approved the tentative tract map and site development plan. Although two of the individual plaintiffs in the present action (Peter Lubisich, Jr. and Donald Burns) appeared at the planning commission hearing and voiced their objections to the tentative tract map, no appeal was taken by anyone from the planning commission decision.
On October 12, 1972, a grading plan and plans for the construction of a retaining wall were filed with the planning department. Permits for the work issued immediately thereafter.
On October 24, 1972, Wilson obtained a $2,900,000 construction loan for the project.
On October 27, 1972, the planning department made a finding that the project had a 'non-significant effect' on the environment and accordingly determined that an environmental impact report (EIR) would not be required.
On November 6, 1972, Wilson began demolition of existing structures and thereafter graded the site and constructed the retaining wall. Land acquisition costs and the costs of the foregoing work exceeded $735,000. Prior to December 1, 1972, Wilson entered into binding contracts for construction and materials in excess of $900,000.
On November 27, 1972, the county issued a building permit for the construction of the project, and Wilson applied for a permit from the state division of highways for the construction of an access driveway to the development.
On December 4, 1972, Wilson submitted a final tract map to the county surveyor for review and approval.
On December 7, 1972, the county department of building and safety issued permits for electrical, plumbing and heating work.
Following the hearing, the court entered a minute order announcing its intended decision to deny the application for preliminary injunction and to deny the petition for writ of mandate. Plaintiffs requested findings of fact and conclusions of law. The court thereupon made and entered an order denying the petition in which it found the facts recited above and concluded that the petition should be denied because (1) plaintiffs had failed to exhaust their administrative remedies; (2) the project had been confirmed and validated by the provisions of a 1972 urgency measure amending the CEQA (Stats.1972, ch. 1154, effective Dec. 5, 1972); and (3) plaintiffs had been guilty of laches.
Plaintiffs contend: (1) The court erred in concluding that plaintiffs failed to exhaust their administrative remedies; (2) the court erred in concluding that the project was validated by the 1972 urgency amendment to the CEQA; and (3) the tentative tract map was invalid in that it was in conflict with the adopted general plan and zoning for the area.
(a) Exhaustion of Administrative Remedies
It is settled that before one claiming to be aggrieved by a decision of an administrative agency may seek judicial relief, he must first exhaust his administrative remedies. (Metcalf v. County of Los Angeles, 24 Cal.2d 267, 269, 148 P.2d 645; Igna v. City of Baldwin Park, 9 Cal.App.3d 909, 915, 88 Cal.Rptr. 581; Dunham v. City of Westminster, 202 Cal.App.2d 245, 249--250, 20 Cal.Rptr. 772.) The court below took judicial notice of section 61.0222 of the San Bernardino County Code, which provides in pertinent part as follows: 'Any order, requirement, decision, determination, interpretation of ruling made by the County Planning Commission in the administrative enforcement of the provisions of this Code, may be appealed therefrom to the Board of Supervisors by any person aggrieved, or by an officer, board, department or bureau of the County. . . .' The record of the planning commission proceeding in which the Wilson tentative tract map was approved shows that the two individual plaintiffs appeared at the public hearing but took no appeal from the planning commission decision. The court, therefore, concluded that plaintiffs failed to exhaust their administrative remedies.
Plaintiffs contend that the quoted
county code provision was not intended to grant 'any person aggrieved'
the right to appeal a planning commission decision approving a tentative
tract map and, more importantly, assuming it was so intended, it is in
conflict with the Subdivision Map Act (Bus. & Pro.Code, s 11500 et
seq.) and therefore invalid. Plaintiffs point to Business and Professions
Code section 11552 which gives the right of administrative appeal from
a decision of the planning commission only to the subdivider who 'is dissatisfied
with any action of the advisory agency with respect to the tentative map,
or the kinds, nature and extent of the improvements recommended by the
advisory agency to be required, . . .' The section does not give a right
of appeal to any interested or aggrieved person.
FN3 Subdivision (b) of section 11552 of Business and Professions Code provides:'Upon conclusion of the hearing the government body or appeal board shall within seven days declare its findings based upon the testimony and documents produced before it. It may sustain, modify, reject or overrule any recommendations or rulings of the advisory agency and may make such findings as are not inconsistent with the provisions of this chapter or local ordinance adopted pursuant to this chapter.
'If the subdivider or advisory agency is dissatisfied with any action of the appeal board with respect to the tentative map, or the kinds, nature and extent of the improvements required by the appeal board, either may, within 15 days after such action, appeal to the governing body. The governing body shall hear the appeal within 15 days or at its next succeeding regular meeting, unless the subdivider consents to a continuance, and shall give notice of such hearing to the subdivider, the appeal board and the advisory agency. The governing body shall hear the argument of the subdivider, the appeal board and the advisory agency or of their representatives based upon the testimony and the documents before the appeal board, and may receive documents from or hear the testimony of any competent person respecting the character of the neighborhood in which the subdivision is to be located, the kinds, nature and extent of improvements, the quality of kinds of development to which the area is best adapted and any other phase of the matter with respect to which it may desire to inquire into. Upon conclusion of the hearing the governing body shall within seven days, declare its findings based upon the testimony and documents produced before it or before the appeal board. It may sustain, modify, reject or overrule any recommendations or rulings of the appeal board and may make such findings as are not inconsistent with the provisions of this chapter or local ordinance adopted pursuant to this chapter.'
Plaintiffs urge that, except to the extent the Subdivision Map Act expressly or by necessary implication authorizes local agencies to enact supplemental ordinances, the state law preempts the field of subdivision regulation. They contend that the act does not authorize enactment of a local ordinance extending the right of appeal from an advisory agency decision on a tentative tract map to any aggrieved person. They therefore maintain that as dissatisfied members of the public they had no administrative remedy which they could have validly pursued.
Local agencies are expressly empowered to enact certain types of supplemental ordinances. (E.g., Bus. & Prof.Code, ss 11506, 11525 (controlling design and improvement); Bus. & Prof.Code, s 11540.1 (regulating division of land not a subdivision); Bus. & Prof.Code, ss 11543.5, 11547 (prescribing fees as a condition of approval); Bus. & Prof.Code, s 11546 (requiring dedication of land or payment of fees for park or recreational purposes); Bus. & Prof.Code, s 11525.2 (requiring dedication of land for school purposes).) The power to adopt supplemental ordinances or regulations in connection with matters covered by the act, though not expressly granted, may also be implied provided they bear a reasonable relation to the purposes and requirements of the act and are not inconsistent with it. (Ayres v. City Council of Los Angeles, 34 Cal.2d 31, 37, 207 P.2d 1; Longridge Estates v. City of Los Angeles, 183 Cal.App.2d 533, 539, 6 Cal.Rptr. 900; Mefford v. City of Tulare, 102 Cal.App.2d 919, 925, 228 P.2d 847; see Kelber v. City of Upland, 155 Cal.App.2d 631, 638, 318 P.2d 561.) But local ordinances which are inconsistent 'with the language and apparent intent of the statute' are invalid. (Kelber v. City of Upland, Supra, 155 Cal.App.2d 631, 638, 318 P.2d 561, 566; Santa Clara County Contractors Assn. v. City of Santa Clara, 232 Cal.App.2d 564, 573--575, 43 Cal.Rptr. 86; Newport Bldg. Corp. v. City of Santa Ana, 210 Cal.App.2d 771, 776--777, 26 Cal.Rptr. 797.)
From our analysis of the act, it is our conclusion that the county code, if construed as permitting Any aggrieved person to appeal a planning commission decision approving a tentative tract map, would conflict with Business and Professions Code section 11552. The language of that section indicates the Legislature intended to preempt the subject matter of appeals from advisory agency decisions on tentative tract maps. It contains comprehensive provisions governing such appeals; it prescribes who may appeal and sets forth in detail the procedure to be followed, including the time within which such appeals must be taken and the period within which decisions on appeal must be rendered.
That the foregoing interpretation of Business and Professions Code section 11552 comports with the legislative intent is reinforced by the fact that in 1972 the Legislature added section 11552.2 to the Subdivision Map Act in order to afford any person affected by a subdivision in cities with a population in excess of 2,800,000 (City of Los Angeles) the right to appeal from an advisory agency decision on a tentative tract map. (Stats.1972, ch. 825, effective August 11, 1972.) The section provides that in such cities '(n)otwithstanding the provisions of Section 11552 of this chapter, . . . any person affected by a proposed subdivision, Rather than only the subdivider, may appeal the decision of the advisory agency . . . with respect to the tentative map of such proposed subdivision. . . .' (Emphasis added.)
Although construction of a statute is a judicial function, where a statute is unclear, a subsequent expression of the Legislature bearing upon the intent of the prior statute, though not binding upon a court, may properly be considered in determining the effect of the prior statute. (Bd. of Soc. Welfare v. County of L.A., 27 Cal.2d 90, 97, 162 P.2d 635; Stockton Sav. & Loan Bank v. Massanet, 18 Cal.2d 200, 204, 114 P.2d 592.) The language of Business and Professions Code section 11552.2--'rather than only the subdivider'--indicates that by enacting section 11552 the Legislature intended to limit the right of appeal to subdividers only. Los Angeles had by city ordinance long provided for appeals from an advisory agency decision on a tentative tract map. (See Great Western Sav. & Loan Assn. v. City of Los Angeles, 31 Cal.App.3d 403, 410--411, 107 Cal.Rptr. 359.) Had the city validly been empowered to so extend the right of appeal by ordinance, enactment of Business and Professions Code section 11552.2 would have been unnecessary.
It is further noted that A.B. 497,
which was signed by the Governor on April 3, 1974 and which will become
operative on January 1, 1975, amends Business and Professions Code section
11552 by adding subdivision (c) allowing local agencies to adopt an ordinance
permitting 'any interested person adversely affected by a decision of the
advisory agency or appeal board' to file a complaint with the governing
body 'concerning any decision of the advisory agency or appeal board. 'The
passage of A.B. 497 is further evidence that the Legislature intended Business
and Professions Code section 11552 to be the exclusive regulation on the
subject of appeals from advisory agency decisions on tentative tract maps.
FN4 Subdivision (c) reads:'Upon conclusion of the hearing the governing body shall, within seven days, declare its findings based upon the testimony and documents produced before it or before the advisory board or the appeal board. It may sustain, modify, reject or overrule any recommendations or rulings of the advisory board or the appeal board and may make such findings as are not inconsistent with the provisions of this chapter or local ordinance adopted pursuant to this chapter.'
The county contends that its power
to enact a supplemental ordinance granting any aggrieved person the right
to appeal is derived from subdivision (a) of Business and Professions Code
section 11526 which provides: '(a) The design, improvement and survey data
of subdivisions and the form and content of tentative and final maps thereof,
and the procedure to be followed in securing official approval are governed
by the provisions of this chapter and by the additional provisions of local
ordinances dealing with subdivision, the enactment of which is required
by this chapter.' The ordinance referred to in that section is one which
a local agency 'is required' to enact; that is, an ordinance regulating
the design and improvement of subdivisions (Bus. & Prof.Code, ss 11506,
11525.) Section 11526, subdivision (a), impliedly authorizes local agencies
to prescribe in an ordinance regulating the design and improvement of subdivisions
the procedure to be followed by a subdivider for securing official approval
of a tentative or final map. But the section does not logically, either
by its terms or by implication, authorize enactment of a supplemental local
ordinance granting 'any aggrieved person' the right to appeal from an advisory
agency decision on a tentative map.
FN5 Business and Professions Code section 11525 provides:Business and Professions Code section 11506 provides:
"Local ordinance' refers to an ordinance regulating the design and improvement of subdivisions, enacted by the governing body of any city or county under the provisions of this chapter or any prior statute, regulating the design and improvement of subdivisions, in so far as the provisions of the ordinance are consistent with and not in conflict with the provisions of this chapter.'
There is much to be said from a policy standpoint of extending the right to appeal advisory agency decisions on a tentative tract map to any interested person rather than confining it to the subdivider. Community members have a legitimate interest in the subdivision process because the character of a neighborhood is largely influenced by the way in which land is subdivided, and once land is subdivided and lots are sold, the opportunity to remedy errors or mistakes in judgment made by the advisory agency in approving the subdivision is virtually nil. (See Taylor, Current Problems in California Subdivision Control, 13 Hast.L.J. 344, 345.) The trend is to permit greater public participation in such governmental decisions. (See Scott v. City of Indian Wells, 6 Cal.3d 541, 99 Cal.Rptr. 745, 492 P.2d 1137.) That the approval of a tentative tract map is a critical stage in land development and a point at which the public's interest in the environmental impact of the development should be considered has been recognized by the Legislature. (Pub.Resources Code, s 21080.) However, the implementation of a policy of wider public participation in the subdivision process by permitting any interested person to appeal advisory agency decisions on tentative tract maps is for the Legislature. As we interpret the Subdivision Map Act as it is now written, a local ordinance extending the right of appeal to any interested person would be inconsistent with Business and Professions Code section 11552.
We conclude that to construe the San Bernardino County Code provisions relating generally to appeals from decisions and dealings of the county planning commission to give 'any aggrieved person' the right to appeal from a decision of the planning commission on a tentative tract map would render it an invalid regulation on a matter now preempted by the Subdivision Map Act. Such construction must be avoided. Accordingly, the ruling below cannot be upheld on the doctrine of exhaustion of administrative remedies.
(b) Validation Of The Project
The alternative ground on which the
court below denied plaintiffs' petition is that the Wilson project was
validated and confirmed by the 1972 urgency amendment to the CEQA, effective
December 5, 1972. Among other provisions, the amendment added sections
21169 and 21170 quoted in full in the margin below.
FN6 Section 21169 provides:The validating sections were added in the wake of Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247, 104 Cal.Rptr. 761, 502 P.2d 1049. The court's refusal to delay the effective date of its ruling so as to make it prospective only gave rise to grave uncertainties concerning private projects which were under construction or in which developers had expended or committed substantial sums prior to the decision. Sections 21169 and 21170 were enacted to validate private projects which had been approved or were in the process of construction prior to the effective date of the statute.
In the case at bench plaintiffs' mandate petition was pending prior to the effective date of the validating act. Consequently, in determining whether or not the project was validated, the controlling provision is the qualifying proviso of section 21170 that, notwithstanding the pendency of a judicial proceeding, the project is validated 'if, prior to the commencement of judicial proceedings and in good faith and in reliance upon the issuance by a public agency of any lease, permit, license, certificate or other entitlement for use, substantial construction has been performed and substantial liabilities for construction and necessary materials have been incurred.' Plaintiffs urge that 'substantial construction' within the meaning of the statute could not have been performed prior to the institution of this proceeding because a building permit was not issued until about November 27, 1972. The assumption that construction must be in reliance upon the issuance of a building permit is devoid of merit.
Section 21170 refers to good faith
commencement of construction 'in reliance upon the issuance by a public
agency of any lease, permit, license, certificate, Or other entitlement
for use. . . .' (Emphasis supplied.) Approval of a tentative tract map
and a site development plan clearly constitutes 'other entitlement for
use' within the meaning of the statute. (See s 21080.) Moreover, the record
reveals that Wilson expended substantial sums in reliance upon the grading
permit and the permit to construct the retaining wall and, in addition,
incurred contractual liabilities for construction and material in excess
of $900,000 prior to the filing of the present lawsuit.
FN7 Public Resources Code section 21080 provides:Plaintiffs' final contention is that the approval of the tentative tract map was in violation of Business and Professions Code section 11549.5, subdivisions (a) and (b), and section 11526, subdivision (c).
Section 11549.5 provides in pertinent part: 'A governing body of a city or county shall deny approval of a final or tentative subdivision map if it makes any of the following findings: (a) That the proposed map is not consistent with applicable general and specific plans. (b) That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans.'
Section 11526, subdivision (c) provides: '(c) No city or county shall approve a tentative or final subdivision map unless the governing body shall find that the proposed subdivision, together with the provisions for its design and improvement, is consistent with applicable general or specific plans of the city or county.'
The planning commission expressly
found that the proposed subdivision was consistent with applicable general
and specific plans of the county. The uncontradicted evidence was that
the property in question was zoned R--3 after the general plan encompassing
the property was adopted and that the prior use for a 38 cottage motel
on the property was consistent with the zoning and the general plan. At
the planning commission hearing the subject of conformity with the general
plan was fully considered. Substantial evidence exists to support the commission
finding that the proposed subdivision is not inconsistent with applicable
general and specific plans for the area.
FN8 Plaintiffs do not attack the finding on the ground it should have been made by the 'governing body' (Bus. & Prof.Code s 11526, subd. (c)), rather than the planning commission. Any objection in that regard will, therefore, be deemed to have been waived.The order denying the petition for administrative mandamus insofar as it related to the Wilson project should be affirmed.
With respect to the Kaiser-Aetna project, plaintiffs' amended petition charged in substance as follows: Kaiser-Aetna is the owner of a parcel of land in the unincorporated Lake Arrowhead area of The County of San Bernardino; on or about July 31, 1972, the county granted Kaiser-Aetna permission to build a 181 multiple residential development on the property; defendants failed to comply with the CEQA in that no environmental impact report (EIR) was made or considered prior to the approval of the project, or if such a report was made, it was inadequate and construction had not commenced as of December 1, 1972.
Kaiser-Aetna answered with general
denials and affirmative defenses and filed a declaration and memorandum
of authorities in opposition to the order to show cause re preliminary
injunction. The cause was submitted on the pleadings, declarations, and
record of the administrative proceeding sought to be reviewed. The following
pertinent facts are not in dispute:
FN9 As in the Wilson matter, plaintiffs do not raise any issue concerning the propriety of trying a mandate proceeding on declarations. (See fn. 2, Ante.)Kaiser-Aetna was the purchaser of a 23 acre parcel of land in the Lake Arrowhead area of the county; on June 1, 1972, the county planning commission, following a public hearing, approved a site development plan for the construction of a 181 unit residential development on the property; on a citizen's appeal of the planning commission decision, the board of supervisors held a public hearing and on July 31, 1972, upheld the planning commission decision; on August 15, 1972, Kaiser-Aetna filed a tentative tract map with the planning commission for approval; following the Supreme Court decision in Friends of Mammoth v. Board of Supervisors (1972) Supra, 8 Cal.3d 247, 104 Cal.Rptr. 761, 502 P.2d 1049, the county required Kaiser-Aetna to submit a preliminary EIR to a county environmental review committee to enable it to determine whether an EIR should be required; on October 19, 1972, Kaiser-Aetna submitted its preliminary report; following a review of the report, the county evaluation committee ordered Kaiser-Aetna to prepare and submit a draft EIR; on December 4, 1972, Kaiser-Aetna submitted its draft EIR (dated November 14, 1972) to the county evaluation committee; the committee reviewed the report and thereafter prepared and submitted its own EIR to the county planning commission; the planning commission held public hearings and on December 14, 1972, approved the EIR and Kaiser-Aetna's tentative tract map.
FN10 Kaiser-Aetna's declaration in opposition to the order to show cause stated that in reliance upon county approval of the site development plan, it expended approximately $40,000 in architectural and engineering fees in the preparation of the tentative tract map and of working drawings for the construction of the project.Following argument and submission, the court entered a minute order setting forth its intended decision in which it stated that plaintiffs' petition would be denied as to the Kaiser-Aetna project on the ground the procedure followed by defendants and real party in interest in the preparation and approval of the EIR was validated by the provisions of section 21172.5. Plaintiffs thereupon requested findings of fact and conclusions of law. The court did not make findings, but instead signed and entered a judgment denying the petition and reciting that findings and conclusions were not required.
Plaintiffs appeal from the judgment. They advance two contentions: (1) The court erred in concluding that the procedure followed by defendants in the preparation and approval of the EIR was validated by section 21172.5 and (2) the judgment must be reversed for failure to make findings of fact and conclusions of law.
(a) Validation Of The Environmental Impact Report
As part of the 1972 urgency amendment
to the CEQA, the Legislature, in addition to the enactment of sections
21169 and 21170 validating private projects undertaken and approved prior
to the effective date of the urgency measure, enacted sections 21171 and
21172.5, quoted in the margin below. These sections provide a 120 day moratorium
period within which the state office of planning and research and local
agencies were to prepare guidelines for the evaluation of projects and
for the preparation of EIRs. (ss 21082, 21083.) The court below determined
that section 21172.5 validated the EIR prepared and considered in connection
with the Kaiser-Aetna project.
FN11 Section 21171 provides:'This section shall not prohibit or prevent a public agency, prior to the 121st day after the effective date of this section, from considering environmental factors in connection with the approval or disapproval of a project and from imposing reasonable fees in connection therewith.'
Section 21172.5 provides:
'Until the 121st day after the effective date of this section, any objectives, criteria and procedures adopted by public agencies in compliance with this division shall govern the evaluation of projects defined in subdivisions (a) and (b) of Section 21065 and the preparation of environmental impact reports on such projects when required by this division.
'Any environmental impact report
which has been completed or on which substantial work has been performed
on or before the 121st day after the effective date of this section, if
otherwise legally sufficient, shall, when completed, be deemed to be in
compliance with this division and no further environmental impact report
shall be required except as provided in Section 21166.'
FN12 State Guidelines were adopted on February 7, 1973. (Cal. Administrative Code, tit. 14, div. 6, ch. 3.)Plaintiffs contend that section 21172.5 only applies to public projects (those defined in subdivisions (a) and (b) of section 21065) and not to private projects. Defendants counter that only the first paragraph relates to public projects and that the second applies to private as well as to public projects.
FN13 Section 21065 of the Public Resources Code defining the term 'project' reads:A review of the background of the enactment of the 1972 urgency amendment to the CEQA leads us to the conclusion that defendants' construction of section 21172.5 comports with the intention of the Legislature.
Prior to Friends of Mammoth, the CEQA was generally believed to apply only to projects undertaken or funded by public agencies. (Seneker, The Legislative Response to Friends of Mammoth, 48 State Bar J. 127, 128.) Partly because of the failure of the state office of planning and research to formulate and communicate necessary guidelines to public agencies, the act was largely ignored even as to public projects. (Seneker, Supra, pp. 128--129.) Sections 21171 and 21172.5 were enacted in order to allow time for the preparation and adoption of guidelines for the implementation of the CEQA as amended by the urgency measure of December 5, 1972.
Section 21171 relates to private projects. It provides that except for section 21169, the act shall not apply to the issuance of any lease, permit, license, certificate or other entitlement for use for any private project until the 121st day after the effective date of the section (i.e., until April 5, 1973), provided, that the moratorium shall not apply to any project subject to section 21170 (a project the legality of which is being contested on the effective date of the section). It further provides, however, that during the moratorium period the section 'shall not prohibit' a public agency from considering environmental factors in connection with the approval or disapproval of a project and from requiring reasonable fees in connection therewith.
In recognition of the fact that from its inception the CEQA clearly applied to public projects, they were not exempt from the act during the moratorium period. However, the first paragraph of section 21172.5 provides that during the 120 day period, any objectives, criteria and procedure adopted by public agencies in compliance with the act shall govern the evaluation of public projects and the preparation of EIRs on such projects. The second paragraph of that section, the provision at issue in the case at bench, provides: 'Any environmental impact report which has been completed or on which substantial work has been performed on or before the 121st day after the effective date of this section, if otherwise legally sufficient, shall, when completed, be deemed to be in compliance with this division and no further environmental impact report shall be required except as provided in Section 21166.'
In his excellent article in the State Bar Journal, Mr. Seneker makes the following observations concerning sections 21171 and 21172.5: 'It is important to note that there is a significant difference in language between Sections 21171 and 21172.5. The former (applying to private projects) Does not specifically validate environmental impact reports prepared during the moratorium period. Rather, the determinative point is whether the project has been approved by the public agency prior to the end of the moratorium period. If so, then an EIR prepared in accordance with the Act's requirements will not be needed. Moreover, if part of the project has been approved prior to April 5, 1973, but another or an additional discretionary governmental approval is required after April 5, 1973, an EIR must be prepared under the Act only if the subsequent approval will involve a 'greater degree of responsibility and control over the project as a whole.' See 14 Cal.Adm.Code s 15070(e). The failure of Section 21171, however, specifically to validate environmental impact reports prepared under local ordinances during the moratorium period does raise the possibility that a developer might comply in good faith with ordinances adopted by local governmental agencies following the Friends of Mammoth decision in preparing an environmental impact report during the moratorium period only to discover that, if his project has not actually been approved prior to the expiration of the moratorium period, he may be required to resubmit a new or amended environmental impact report complying with the Act, as implemented by the Guidelines, prior to securing approval of his project after the moratorium period has expired.' (Emphasis supplied; Seneker, Supra, 48 State Bar J. 127, 132, 164, fn. 12.)
As Mr. Seneker correctly points out, section 21171 relating to private projects does not Specifically validate EIRs prepared pursuant to local ordinances during the moratorium period. However, it would seem illogical to assume the Legislature intended to empower public agencies to require the preparation and consideration of an EIR on private projects during the moratorium period yet give no validity to reports so prepared in pursuance of such requirement.
Under section 21171, if a project
is Approved during the moratorium period, an EIR is not required, provided
the validity of the project was not being contested by a judicial proceeding
commenced before the effective date of the section. In the case at bench,
Kaiser's site development plan was approved by the board of supervisors
on July 31, 1972, and the tentative tract map was approved on December
14, 1972. Had it not been for the filing of the lawsuit, the approval of
the tentative tract map would have been validated by section 21171. The
question, therefore, is whether the project was validated by the preparation
and consideration of an EIR as required by the county, notwithstanding
the pendency of the lawsuit.
FN14 It is possible that approval of the site development plan constituted the significant point of approval of the project. If so, an attack upon such approval might have been barred by laches. However, although Kaiser-Aetna's answer raised the defense of laches, the court below did not make a finding on that issue. It based its decision solely on the determination that the EIR was validated by section 21172.5.With respect to public projects, it is clear that the second paragraph of section 21172.5 would validate an EIR completed or on which substantial work had been performed before the expiration of the moratorium period if the report is otherwise legally sufficient when completed. That validating provision does not exclude from its protection projects whose validity was being contested on the effective date of the section. While section 21172.5 is not artfully drawn, we believe the second paragraph may be reasonably construed as being applicable to private as well as public projects. By its terms, it relates to '(a)ny environmental impact report.' Any other construction would place EIRs prepared on private projects during the moratorium period pursuant to local ordinances or regulations on a different footing than those prepared on public projects. We perceive no rational basis for treating the two differently and do not believe the Legislature so intended. In the light of the final paragraph of section 21171 empowering public agencies to consider environmental factors with respect to private projects during the moratorium period, a reasonable interpretation of the second paragraph of section 21172.5 is that it was intended to apply to EIRs prepared on a private project in compliance with local requirements as well as to those prepared for public projects.
The record of the administrative proceeding in the case at bench reveals that immediately after the decision in Friends of Mammoth, the San Bernardino County Board of Supervisors sought to comply with the CEQA as interpreted by that decision by establishing a procedure for the preparation and evaluation of EIRs in connection with approval of private projects. That procedure was followed in connection with the Kaiser-Aetna project. A draft EIR was prepared and submitted to the county evaluation committee; the committee independently evaluated and analyzed the report and prepared and submitted its own EIR to the county planning commission; following public hearings, the county planning commission considered the EIR before approving the tentative tract map. In the foregoing circumstances, the court below correctly determined that the procedure followed in the preparation and consideration of the EIR and the EIR itself were validated by section 21172.5.
Plaintiffs attack the adequacy of the EIR on the Kaiser-Aetna project in several respects. They contend the report failed to deal adequately with the problem of water supply, the impact of added traffic which would be generated by the development, and the 'project's cost/benefit impact on the area.' However, plaintiffs have failed to substantiate their assertions of inadequacy by record reference to the EIR or to any evidence adduced at the administrative proceedings. A review of the record shows that the draft EIR, together with the county evaluation committee's analysis and report, did consider and discuss all pertinent environmental factors, including zoning, air, water, terrain and sewers. We cannot say that the report was inadequate as a matter of law.
(b) Failure To Make Findings
Plaintiffs' final contention is that the judgment must be reversed because the court below, despite plaintiffs' request, failed to make findings of fact and conclusions of law. The contention is without merit.
Insofar as the Kaiser-Aetna project is concerned, plaintiffs' amended mandate petition was one seeking to review and annul county approval of the tentative tract map on the sole ground of alleged noncompliance with the CEQA. The scope of review in such proceedings is prescribed by sections 21168 and 21168.5. Those sections were added by the 1972 urgency amendment to the CEQA (effective Dec. 5, 1972) and were in force when the county approved the tentative tract map (Dec. 14, 1972) and when the amended mandate petition was filed (Dec. 15, 1972).
Section 21168 prescribes the scope
of review in an action to review and annul a decision of a public agency
on the ground of noncompliance with the CEQA where the decision sought
to be reviewed was made as a result of a proceeding in which the law requires
a public hearing and the taking of evidence. The section provides that
in such actions, the court 'shall not exercise its independent judgment
on the evidence but shall only determine whether the act or decision is
supported by substantial evidence in the light of the whole record.'
FN15 Section 21168 reads:'In any such action, the court shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record.'
Section 21168.5 prescribes the scope
of review in actions or proceedings to review and set aside a decision
of a public agency other than an action brought under section 21168. It
provides that review extends only 'to whether there was a prejudicial abuse
of discretion' and that 'abuse of discretion' is established if an agency
has not proceeded in the manner required by law or if the decision is 'not
supported by substantial evidence.'
FN16 'Section 21168.5 provides:In the case at bench, although the record shows that a public hearing on the tentative map was held, we cannot determine from the record whether the county ordinance Required a public hearing and the taking of evidence in acting on a tentative tract map. Except as to the City of Los Angeles (Bus. & Prof.Code, s 11552.2), the Subdivision Map Act contains no provision requiring such a public hearing. (See Comment, Land Development And The Environment, 5 Pac.L.J. 55, 87--88.) Nor does the CEQA require a public hearing in the environmental review procedure. (Concerned Citizens of Palm Desert v. Riverside County Board of Supervisors (Consolidated Land Investment Company), (1974) 38 Cal.App.3d 272, 113 Cal.Rptr. 338.
In any event, whether the scope of review be that prescribed by sections 21168 or 21168.5, the failure to make findings did not invalidate the judgment. Where the only issue in a proceeding is whether the administrative decision is supported by substantial evidence in the light of the whole record or whether there has been an abuse of discretion, findings are not essential to effective appellate review of the decision of the trial court. In such cases, the issue being essentially one of law, findings are not required. (Savelli v. Board of Medical Examiners, 229 Cal.App.2d 124, 134-- 135, 40 Cal.Rptr. 171; Cal.Administrative Mandamus (Cont.Ed.Bar, 1966) s 14.3, p. 235.) Although a contrary view is expressed in Beloin v. Blankenhorn, 97 Cal.App.2d 662, 664, 218 P.2d 552, we believe the sounder rule is that expressed in Savelli. In the case at bench, plaintiffs do not question the applicability of the substantial evidence test rather than the independent judgment rule. In view of the limited scope of review and the absence of factual issues, the failure to make findings did not affect the validity of the judgment. (International Assn. of Fire Fighters v. City of Palo Alto, 60 Cal.2d 295, 300--301, 32 Cal.Rptr. 842, 384 P.2d 170.)
FN17 Although findings are
not Required in a proceeding in administrative mandamus to review decision
of an administrative body where the only issue is whether the decision
is supported by substantial evidence, where the applicable scope of review
is the independent judgment test findings must be made if requested. (Cal.
Administrative Mandamus, Supra, s 14.2, pp. 234--235.) However, irrespective
of the applicable scope of review, it would be advisable for trial courts
to make findings in all cases. Even though the scope of review may be the
substantial evidence test, the mandate proceeding may raise additional
issues requiring findings. (Cal. Administrative Mandamus (1974 Supp.) s
14.3, p. 86.) Moreover, in the light of the recent decision of Strumsky
v. San Diego County Employees Retirement Assn. (L.A. 30009, March 25, 1974)
11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, findings will enable
the reviewing court to determine what test the trial court employed in
reviewing the administrative decision and the ground upon which it found
that test to be applicable.
FN18 On the record before us it does not appear that the decision of the planning commission approving the tentative tract map affected 'fundamental vested rights' of any of the plaintiffs. (See Bixby v. Pierno, 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242; Strumsky v. San Diego County Employees Retirement Assn. Supra, 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29.) We, therefore, need not consider the intriguing question whether, if it had, the Legislature could nevertheless validly prescribe the substantial evidence scope of review as it has done in sections 21168 and 21168.5.DISPOSITION
The judgment and order in both the Marvin Wilson matter and the Kaiser-Aetna matter are affirmed.
KERRIGAN, Acting P.J., and KAUFMAN, J., concur.
Hearing denied; TOBRINER and MOSK, JJ., dissenting.