HORN v. OSBORNE

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Court of Appeal, Second District, Division 5, California.

Merlin W. HORN, Petitioner and Appellant, v. COUNTY OF VENTURA, Respondent; Frederick P. OSBORNE, Real Party in Interest.

Civ. 51120.

Decided: March 30, 1978

James R. Leavy, Oxnard, for petitioner and appellant. Dorothy L. Schechter, County Counsel, and R. Thomas Harris, Asst. County Counsel, Ventura, for respondent. Marshall, Lowthorp, Richards & Hibbs, and Charles J. Conway, Jr., Oxnard, for real party in interest.

Merlin W. Horn, appellant, sought an alternative writ of mandate requiring the County of Ventura, respondent, to set aside its decision allowing Frederick P. Osborne to divide his property in Ventura County into four parcels. Appellant's petition was dismissed and he took this appeal.

On December 3, 1975, appellant purchased a parcel of real property in Ventura County. Osborne was the owner of an adjacent piece of property. On August 14, 1975, Osborne applied to respondent's Planning Department for division of his property into four parcels. Osborne's petition was approved subject to the condition that he install sewers to serve the new lots before the final map could be recorded. Notice of this ruling was not given to any of the adjoining property owners. Osborne appealed the condition to the Ventura Board of Supervisors (Supervisors) and hearings were held on this request on December 9, 1975, and December 23, 1975. Appellant appeared by counsel at these hearings and requested that the entire matter of the subdivision's approval be set for a public hearing. His request was denied. After the hearings, the Supervisors approved the petition in the manner sought by Osborne.

Appellant argued in his petition for an alternative writ that a public hearing was required so that he and some of his neighbors could show the adverse effect that the new residential parcels would have on the traffic safety and circulation in the vicinity. He contends the Negative Declaration filed and processed with Osborne's application was incomplete in this regard. He concludes that the subdivision would cause damage to the environment and his lot in such a manner that his liberty and the enjoyment of his property and its value would be reduced.

The primary issue on this appeal is whether the Supervisors refusal to grant a public hearing was a denial of due process of the law. The problem involves a determination of the nature of the hearing. If it is quasi-judicial, notice and a public hearing are required. If quasi-legislative, the action of the Supervisors was lawful.

The difference between adjudicatory and quasi-legislative hearings was explained in County of San Mateo v. Palomar Holding Co., 208 Cal.App.2d 194, 24 Cal.Rptr. 905. The court stated that the planning commission's function was not adjudicatory in nature but was quasi-legislative because the developer was entitled to subdivide his property when he met all of the requirements of the ordinances in question. If he met all of the requirements, the planning commission was required to give him the necessary approval. If he failed to do so, his action could be reviewed by mandamus. On pages 198-199, 24 Cal.Rptr. on page 908, the court states: “ . . . ‘when an official is required and authorized to do a prescribed act upon a prescribed contingency, his functions are ministerial only, and mandamus may be issued to control his action upon the happening of the contingency.’ (Emphasis ours.) (Citations.)” California Administrative Agency Practice (Cont.Ed.Bar 1970) section 1.19, page 16, citing County of San Mateo, states: “Denial of an application for approval of a subdivision map is quasi-legislative action, and due process does not require a hearing whether the action is deemed ministerial or discretionary.”

In San Diego Bldg. Contractors Assn. v. City Council, 13 Cal.3d 205, 118 Cal.Rptr. 146, 529 P.2d 570, the court was concerned with whether a zoning ordinance adopted through the initiative process required a provision for “notice and hearing.” Although the initiative issue distinguishes this case from the one at bar, the opinion summarizes in detail the applicable rules of law. It begins with the same basic premise relied on here, namely “it is black letter constitutional law that due process requires ‘notice and hearing’ only in quasi-judicial or adjudicatory settings and not with respect to the adoption of general legislation.” (Id. at p. 211, 118 Cal.Rptr. at p. 149, 529 P.2d at p. 573.) In footnote 5 the court states at page 212, 118 Cal.Rptr. at page 150 n. 5, 529 P.2d at page 574 n. 5: “ ‘It is long settled law that the enactment of a zoning ordinance is purely a legislative act. . . . It is to be distinguished from the granting or denial of a variance, a conditional use permit or an exception to use, all of which call for administrative action . . . .’ ”

Government Code sections 65853-65857 require counties and cities to give notice and have a public meeting before enacting a zoning ordinance. But a specific provision in a statute does not establish “notice and hearing” as a constitutional due process requirement. In Hurst v. City of Burlingame, 207 Cal. 134, 277 P. 308, the court considered it a requirement of due process, but a recent decision, Associated Home Builders etc., Inc. v. City of Livermore, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473, clarifies the law. Beginning on page 593, 135 Cal.Rptr. at page 46, 557 P.2d at page 478, the court states: “Although Hurst thus held the Burlingame initiative invalid for noncompliance with the state zoning law, the court added a constitutional dictum, asserting that ‘the statutory notice and hearing . . . becomes necessary in order to satisfy the requirements of due process . . . .’ . . . Courts and commentators alike questioned Hurst's statutory holding . . . . (P) Two years ago, however, in San Diego Bldg. Contractors Assn. v. City Council, (supra,) . . . we expressly disapproved the constitutional dictum of Hurst and later decisions. We held that a city violates no constitutional prohibition in enacting a zoning ordinance without notice and hearing to landowners, . . . ” (Emphasis added.)

Other jurisdictions are in accord. In Feldman v. Star Homes (1951), 199 Md. 1, 84 A.2d 903, the court refused to find a denial of due process for failure to hold a preapproval hearing on a subdivision, noting that the applicable legislation contained no requirement for a hearing but did provide that the subdivision would be approved automatically upon failure to act within a specified time period. Commenting on the Feldman case, 4 Anderson, American Law of Zoning (2d ed. 1977) section 23.12, page 69, says: “Where the applicable (subdivision) enabling act imposes no hearing requirement, none will be inferred by the courts. A Maryland court, rejecting a claim that a hearing should be granted at the request of affected landowners, observed that the enabling act did not require a hearing. . . . ”

It is clear that enactments of zoning ordinances and actions by responsible agencies or persons in implementing the ordinances are quasi-legislative in nature. Notice and hearing are not required except where specifically required by statute and the trial court was correct in denying appellant's petition for a writ of mandate. Appellant, however, is entitled to our response to his two arguments raised on appeal. First, he claims that the California Environmental Quality Act of 1970 (CEQA)1 changed the rule that planning commission hearings are quasi-legislative because the qualitative aspects of a proposed subdivision are now required to be given a reasonable, but discretionary, evaluation. Appellant cites No Oil, Inc. v. City of Los Angeles, 13 Cal.3d 68, 79, 118 Cal.Rptr. 34, 529 P.2d 66, where the court held that the environmental quality act applied to zoning ordinances. Environmental impact reports must be prepared in cases of significant environmental impact or a written finding must be made of no significant impact if the report is not prepared.2

This argument was impliedly rejected by the majority of our Supreme Court in City of Livermore, supra, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473. Justice Clark in his dissent objected to the courts overruling of the constitutional dictum in Hurst mentioned earlier in this opinion. His position on notice and hearing requirements was similar to the argument voiced here by appellant. He refers to the administrative duties imported into the zoning process by CEQA, also citing No Oil, Inc., supra. But even without this reference to guide us, we do not believe administrative action on an environmental report is sufficient to change an established legislative function into a judicial function. Although CEQA does not require formal hearings at any stage of the environmental review procedure,3 the Guidelines (Cal.Admin.Code, tit. 14, s 15000, et seq.) urge all public agencies to encourage public involvement. Notice and hearings are recommended, with notice being given in the same manner that is used for regular conducted hearings of the public agency. Ventura County has complied with the Guidelines. Adopted regulations4 provide that environmental impact reports and Negative Declarations shall be posted for public review and anyone concerned with a particular projects environmental consequences may appeal the Environmental Report Review Committee's conclusions. Environmental documents and agendas are posted in three public buildings and citizens may request to be included on a mailing list to receive notice of upcoming hearings on environmental reports. Appellant and members of the public thus have a right to be heard on environmental impact reports before action by the Supervisors on subdivision requests. It is true that action on environmental reports has added a new dimension to many administrative proceedings, but the courts should be hesitant to change quasi-legislative functions into judicial functions unless compelled to do so. The added requirements of adjudicatory hearings can add severe burdens to the administrative procedure and as noted by Judge J. Skelly Wright5 the judiciary should “at least pause for thought” before turning too many administrative decisions into judicial decisions. In our present case, we have a balancing approach that permits public participation in the environmental issue, but preserves the efficiency of the administrative process. We see no reason to change the nature of the meeting solely because the environmental issue is treated differently in a bifurcated procedure. The final determination on the request remains quasi-legislative.

Appellant's second contention is that the trend of recent cases is to permit greater public participation in governmental decisions that affect the character of a neighborhood. He cites, among others, Friends of Lake Arrowhead v. Board of Supervisors, 38 Cal.App.3d 497, 113 Cal.Rptr. 539; Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors, 38 Cal.App.3d 257, 113 Cal.Rptr. 328, and Scott v. City of Indian Wells, 6 Cal.3d 541, 99 Cal.Rptr. 745, 492 P.2d 1137. These cases, and others cited by appellant, do not deal with the quasi-legislative versus quasi-judicial hearing issue. In general they attack the sufficiency or legality of environmental impact reports, or rulings made in connection with variances or conditional uses. These and many other cases contain broad statements about the protection of landowner rights all of which we agree with under the context of each case. But they do not change, or even suggest a change to the established law enunciated here. In California, notices and hearings are provided for when the zoning ordinances are adopted. (See Gov.Code, ss 65850, et seq.) In Hancock v. City of Concord, 114 N.H. 405, 322 A.2d 605, the New Hampshire court noted that public hearings are held when subdivision processing regulations are first adopted so that “the public as a whole has an opportunity to participate in the formulation of local subdivision regulations, but not in (particular ) actions by the planning board under the adopted regulations.” (Emphasis added.) (Id. at page 607.) The initial zoning determines how the parcels may ultimately be divided. Appellant knew or should have known when he purchased his property that Osborne's property could be subdivided into four parcels. Appellant is not claiming that the Supervisors' action violated the zoning plan he is only claiming that adjoining landowners are entitled to notice and hearing whenever any action consistent with the zoning plan is taken that affects their land. The added administrative burden, if we accept this argument, is obvious. It is not the law, and any change should be left to the Legislature or local governing bodies that are inclined to agree with appellant.

The judgment of dismissal is affirmed.

FOOTNOTES

1.  Public Resources Code sections 21000, et seq.

2.  Appellant originally opposed the Supervisors' action because he disagreed with the conclusions of the Negative Declaration. Ventura argued he could not raise this issue because he had not exhausted his administrative remedies, and from the record before us, we are inclined to agree. However, on this appeal his main contention concerning the environmental report is stated above, namely that its requirements change the nature of the subdivision hearings.

3.  See Title 14, California Administrative Code, Natural Resources, section 15164.

4.  These regulations are found in Ventura County's administrative supplement to the State Resources Agency Guidelines for implementation of California Environmental Quality Act of 1970 (adopted March 4, 1975.)

5.  See Wright, The Courts and Rulemaking Process: The Limits of Judicial Review (1974) 59 Cornell Law Review 375.

HASTINGS, Associate Justice.

KAUS, P. J., and ASHBY, J., concur.