MACLEOD v. COUNTY OF SANTA CLARA BOARD OF SUPERVISORS OF COUNTY OF SANTA CLARA

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Court of Appeal, First District, Division 3, California.

Morton P. MACLEOD, an individual d/b/a Bloomfield Farms, Petitioner, v. SUPERIOR COURT OF the State of California, COUNTY OF SANTA CLARA, Respondent, COUNTY OF SANTA CLARA, BOARD OF SUPERVISORS OF the COUNTY OF SANTA CLARA, Planning Commission of the County of Santa Clara, Real Parties in Interest.

Civ. 52592.

Decided: December 29, 1981

Pillsbury, Madison & Sutro, Walter R. Allan, Vaughn R. Walker, John M. Grenfell, San Francisco, for petitioner. Selby Brown, Jr., County Counsel, Robert A. Weers, Robert J. Menifee, Deputys, San Jose, for respondent and real parties in interest.

This petition challenges respondent superior court's denial of administrative mandamus (Code Civ.Proc., § 1094.5), by which petitioner Morton Macleod sought to overturn a decision by the Board of Supervisors of Santa Clara County, denying him a use permit to harvest timber on his property.

The Facts

In August of 1978, petitioner filed an application with the County of Santa Clara for a use permit to conduct logging operations on a 116–acre portion of the Bloomfield Hereford Ranch.   The proposed project contemplated the removal of 1,500 to 2,000 mature redwood trees, approximately 50 percent of the trees over 18 inches in diameter.   The site, which consists of second growth trees, has not been logged for at least 80 years.   Logging would take place over a 2–to–3–month period during the summer season and would be accomplished by 2 or 3 crawler tractors loading logging trucks.   The trucks would make a total of 4–to–12 trips per day to the sawmill in Santa Cruz County.   Approximately 700 feet of new roads would be constructed, culverts would be installed, and trails and log landings would be graded to facilitate the operation.

The property in question is located about one mile southwest of Gilroy, and is zone “A,” “Exclusive Agricultural (Greenbelt).”   The county's zoning ordinance allows timber operations to be conducted in an “A” zone upon the securing of a use permit.   Timber harvesting is also subject to state regulation (Pub. Resources Code, § 4511, et seq., the “Z'berg-Nejedly Forest Practice Act of 1973”).   Pursuant to that legislation, petitioner submitted a “timber harvesting plan” to the Director of Forestry at around the time of the application to the county for a use permit.   On September 8, 1978, the Department of Forestry approved the timber harvesting plan.   On October 23, 1978, the county Central Permit Office notified petitioner that his application was complete and that the matter would be scheduled for public hearing within 45 days on the question of whether an Environmental Impact Report would be required.

Public hearing was delayed, apparently because the Planning Commission was holding workshops to determine whether all timber harvesting in the county should be prohibited.   On June 12, 1979, the Planning Commission staff completed its environmental assessment of the application (“Environmental Clearance Record” or “ECR”), explaining the adverse environmental impact of the logging operation and suggesting ways in which the adverse effects could be mitigated.   The ECR's final conclusion was that the adverse effects could be “mitigated to insignificant levels through conditioning and other measures.”   Issuance of a conditional “negative declaration” for the project was recommended.  (See Pub. Resources Code, § 21064.)

The Planning Commission itself reviewed the application and staff report on September 6, 1979.   In the meantime, however, progress had taken place on the county's proposal for a uniform timber policy.   At a hearing held August 6, 1979, four of the five members of the Board of Supervisors voted to establish a county policy prohibiting commercial timber harvesting as a “nuisance” and permitting the cutting of trees only to salvage timber after a fire and the cutting of downed trees for domestic use.   The board directed county counsel to prepare a draft ordinance to implement the policy.   As a result of the Board of Supervisor's action, the county planning staff revised its recommendation on petitioner's application, and in a document entitled “Staff Report and Environmental Clearance Record Summary,” recommended denial of the use permit.

At the September 6, 1979 Planning Commission meeting, petitioner presented forestry and soil experts who testified that the proposed harvest would be beneficial to the land.   No adverse witnesses were produced.   The commission voted to deny the permit.   A statement of reasons was prepared and sent to the Board of Supervisors, stating the following findings:

“1. That the Commission was not satisfied that the potential adverse impacts identified in the environmental assessment could be mitigated.

“2. That the proposed use of this property is not essential or desirable to the public convenience or welfare in that the potential adverse impacts would not be mitigated.

“3. That the proposed use would be detrimental to the public health, safety and general welfare in that the potential adverse impacts could not be mitigated.”

Petitioner then appealed to the Board of Supervisors where, pursuant to section 48–5 of the County Zoning Ordinance, he was afforded a de novo hearing October 15, 1979 on the use permit application.   Petitioner requested the board defer hearing until after it had clarified county policy regarding timber harvesting, but the board rejected the request.   At the hearing before the Board of Supervisors, petitioner presented witnesses who testified regarding the beneficial effects of timber harvesting.   No witnesses appeared in opposition to the application.   By a vote of 4–to–1, the board denied the permit.   Formal findings were adopted by resolution dated November 5, 1979, stating:

“1. The proposed use of the property would be detrimental to the public health, safety and general welfare in that the project presents a significant risk of degradation of water resources in the Bodfish Creek and Hatfield Creek watershed area.   It has not been established that this adverse impact can be effectively mitigated to less than significant levels.

“2. The proposed use of the property would be detrimental to the public health and safety in that the introduction of logging trucks into the area would present a significant safety hazard to users of the Hecker Pass Highway (State Route 152) and Mount Madonna Park.   This adverse impact cannot be significantly mitigated.

“3. The proposed use of the property will be detrimental to the public health and safety in that the timber harvest operation will significantly increase the risk of fire in the area.   The proposed mitigation measures would not reduce this risk to less than significant levels.

“4. The proposed use of the property is neither essential nor desirable for the public convenience or welfare in that the proposed project presents significant risks of environmental damage and hazards to the public health, safety and welfare without any overriding benefit to the citizens of the County of Santa Clara.”

At no time during the hearing did petitioner assert that the application had previously been granted by operation of law pursuant to Government Code section 65956.

On February 22, 1980, petitioner filed a complaint in the respondent superior court, seeking by administrative mandamus to set aside the Board of Supervisor's decision.   At trial, the entire administrative record was introduced in evidence.   The trial court concluded that the board's decision was supported by substantial evidence, that petitioner was not denied a fair hearing before the board, and that petitioner had waived any claim that the permit was granted by operation of law.   Judgment was entered in favor of the county on December 4, 1980.

Petitioner filed notice of appeal from the judgment.   In spite of the pending appeal, on May 6, 1981, petitioner filed petition for writ of mandate, seeking an expedited review of the trial court judgment.   This division denied the petition May 21, 1981, but the Supreme Court granted hearing and retransferred the matter to this division with directions that the alternative writ issue.   Alternative writ issued July 2, 1981, and on July 23, 1981, the county filed its return.

Discussion

I. Was the Use Permit Granted by Operation of Law When Six Months Elapsed From the Time of Petitioner's Application?

Government Code section 65950 provides:

“Any public agency which is the lead agency for a development project shall approve or disapprove such project within one year from the date on which an application requesting approval of such project has been received and accepted as complete by such agency․”  (Emphasis added.)

Government Code section 65952 provides:

“Any public agency which is a responsible agency for a development project shall approve or disapprove such project within whichever of the following periods of time is longer:

“(a) Within 180 days from the date on which the lead agency has approved or disapproved such project.

“(b) Within 180 days of the date on which completed applications for such projects have been received and accepted as complete by each such responsible agency.”  (Emphasis added.)

Government Code section 65956, subdivision (a) provides:

“(a) In the event that a lead agency or a responsible agency fails to act to approve or disapprove a development project within the time limits required by this article, such failure to act shall be deemed approval of the development project.”

Petitioner contends that Santa Clara County was the “responsible agency” on his proposed project and that its failure to act within 180 days of completion of the application caused approval of the project by operation of law.   The county argues that it was the “lead agency” on the project and that its denial of use permit took place within the permitted one-year period for lead-agency action.   The trial court did not resolve this dispute because it found that petitioner had waived the argument by participating in hearings after 180 days had passed.

A. Did the Trial Court Err in Finding a Waiver?

 Petitioner claims that waiver did not take place because the time limit of Government Code section 65952 and the sanction of Government Code section 65956 divest the county of jurisdiction over the permit application after expiration of 180 days.   Petitioner contends that the objection to lack of subject matter jurisdiction is not subject to waiver by the parties.   He notes that Government Code section 65957 permits a 90–day extension of the time periods by consent of the parties and argues that the existence of a statutory extension negates the possibility of a longer delay under the waiver doctrine.   He cites Mumaw v. City of Glendale (1969) 270 Cal.App.2d 454, 76 Cal.Rptr. 245;  Stuck v. Board of Medical Examiners (1949) 94 Cal.App.2d 751, 211 P.2d 389;  and City of Coronado v. California Coastal Zone Conservation Com. (1977) 69 Cal.App.3d 570, 138 Cal.Rptr. 241, in support of the proposition that an agency's subject matter jurisdiction may not be waived.

Under other circumstances, arguments such as these might be persuasive.   Here, however, it would appear that petitioner's waiver was not of subject matter jurisdiction, but of his argument that Santa Clara County was not the “lead agency” on the application.

On October 23, 1978, when Santa Clara County informed petitioner that his application for a use permit was complete, it informed him that a determination “regarding an approval or denial of your project will be accomplished within one year of this letter.”   Although Government Code section 65950 was not mentioned in the letter, the clear inference is that the county considered itself the “lead agency” on the project.   Petitioner did not question the county's statement that one year might be consumed by the permit process.   On January 5, 1979, petitioner wrote the county to complain about delays;  he expressed concern that the matter be resolved in time for a summer timber harvest, but no mention was made of a possible 180-day deadline argument.   Though petitioner presently asserts an approval deadline of April 21, 1979, he participated without objection in hearings held months later by both the Planning Commission and the Board of Supervisors.   The “jurisdictional” objection was raised for the first time in superior court, where counsel candidly conceded the argument had been previously overlooked and that county representations that a one-year period applied had been uncritically accepted.

It is apparent from the foregoing that Santa Clara County was at all times invested with the authority to review the use permit application, that it purported to act as the “lead agency” on the application, that petitioner did not question its interpretation of its status as the “lead agency,” and that the action was taken within the time limits permitted to a “lead agency.”   Petitioner's argument is that the superior court should have retroactively determined that the “lead agency” determination was incorrect and invalidated all actions taken under that misapprehension.   It should have done this despite the fact that petitioner never questioned the assertion of a one-year deadline and even appealed to the Board of Supervisors challenging only the substance of the Planning Commission's decision.

Had the county been an improper body to act upon the application or, as in Coronado, supra, had the county violated the only time limits arguably applicable to its determination process, petitioner's attack might well have been considered an objection to the jurisdiction of the agency to act.   Here, however, the objection is to the county's having allegedly usurped the position of a “lead agency” when it should have acted only as a “responsible agency.”   Such an objection would seem to be subject to waiver.

B. Was the County the “Lead Agency” on the Project?

 We do not rest our decision, however, on the finding of waiver but instead on our determination that the projected timber harvest was not a “development project” within the meaning of Government Code section 65927, and the county was therefore neither a lead agency nor a responsible agency under sections 65929 and 65933, and thus the 1-year and 180-day deadlines of sections 65950 and 65952 do not apply.

The Legislature has defined a “lead agency” as “the public agency which has the principal responsibility for carrying out or approving a project” (Gov. Code, § 65929) and a “responsible agency” as “a public agency, other than the lead agency, which has responsibility for carrying out or approving a project.”  (Gov. Code, § 65933.)

Petitioner contends that the Department of Forestry is the “lead agency” because of the all-encompassing regulatory program governing the harvesting of timber throughout the state.  (Pub. Resources Code, § 4511, et seq.)

The 1-year and 180-day time limits of Government Code sections 65950 and 65952 are contained in Chapter 4.5 of Division 1 of Title 7 of the Government Code, a chapter added in 1977 (Stats. 1977, ch. 1200, § 1) for the express purpose of ensuring “clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects.”  (Gov. Code, § 65921, emphasis added.)   As used in that chapter, “development” does not include “timber operations which are in accordance with a timber harvesting plan submitted pursuant to the provisions of the Z'berg-Nejedly Forest Practice Act of 1973 (commencing with Section 4511 of the Public Resources Code.)”  (Gov. Code, § 65927.)   The code sections upon which petitioner relies for his argument that the permit was granted by operation of law, Government Code sections 65950, 65952, and 65956, expressly apply to “development” projects.1  Thus, it is clear that Chapter 4.5 and the time requirements stated therein are not even applicable to petitioner's application.

Petitioner anticipates such an argument, which has not been directly made by the county,2 and asserts that if this were the case, “there would be no time period under which ․ a local agency would be required to act, a result which would frustrate both the Forest Practice Act and the Government Code.   Real parties do not contend otherwise;  they have acknowledged throughout that they are subject to the Government Code deadlines.”

Whether the County of Santa Clara is subject to any deadlines for approval of use permits for timber harvesting is beyond the scope of the issues presented in this petition.   Deadlines may exist in local ordinances or elsewhere in the legislation governing public agency approval of projects.  (See, e.g., Pub. Resources Code, § 21151.5.)   It seems clear, however, that since the time limits of Government Code sections 65950 and 65952 apply only to approval or disapproval of “development projects” and since “development” is defined to exclude timber harvesting under the Forest Practice Act of 1973, the time limits asserted by petitioner do not apply.

II. Was the Board's Decision Improperly Based Upon an Unlawful Policy to Prohibit All Commercial Timber Harvesting?

 Relying upon Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 140 Cal.Rptr. 619, and Reeves v. City of Burbank (1979) 94 Cal.App.3d 770, 156 Cal.Rptr. 667, petitioner argues that the county could not properly deny the use permit based upon an unenacted policy to prohibit commercial timber harvesting.   He asserts that this conclusion is even more compelling where, as here, the proposed policy would not pass constitutional muster if enacted.

In Gabric, appellant applied for a permit to build a two-story residence and obtained a “negative declaration” from the planning director.   When neighbors appealed the decision, the city's Environmental Assessment Committee and city council rejected the permit on the grounds that a two-story house would be out of character with the neighborhood and would impair views.   At the time there was no official prohibition against a two-story house at appellant's location and there was no interim zoning ordinance prohibiting the construction.   A new ordinance was passed before trial, and the city sought to justify its action by the new ordinance.   The principle that appellate courts should not issue orders permitting construction of improvements contrary to presently existing legislation (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 125, 109 Cal.Rptr. 799, 514 P.2d 111) was discussed, but the Gabric court concluded that it did not apply where the city was wrong in denying the permit under the original ordinance and the construction would not defeat the objects of the new ordinance.

Petitioner focuses upon the Gabric court's statement that the failure to enact a prohibitory ordinance “cannot be patched up by forbidding the building and relying on an ‘environmental’ decision.”  (73 Cal.App.3d at p. 189, 140 Cal.Rptr. 619.)   He contends that the county here did the same thing:  purported to deny his application on environmental grounds but in fact applied its intended future policy.

The context of Reeves v. City of Burbank, supra, 94 Cal.App.3d 770, 156 Cal.Rptr. 667, was appeal from an award of attorney's fees against the city for arbitrary and capricious denial of a permit to relocate a residence.   When the first application was submitted, no ordinance was in effect, but plaintiff was encouraged by city officials to withdraw her application.   Shortly after she reapplied, an ordinance designed to prohibit her relocation was enacted and was then applied to deny her request.   The Reeves court upheld a determination that the course of conduct was arbitrary and capricious.

From these two cases finding pre-enactment application of permit restrictions to be improper, petitioner argues that Santa Clara County improperly denied his use permit because of an impending timber harvesting restriction.   He notes that on August 6, 1979, the board declared its intention to adopt a prohibitory ordinance and that at that hearing two supervisors stated that it would be unfair to encourage landowners to apply for permits when there was an impending prohibition.   He claims that since there was no testimony about adverse effects at the board's hearing on the application, the supervisors must have been acting in compliance with the proposed ordinance and not because of actual environmental assessment of petitioner's proposed project.   He notes the final irony that, after subsequent hearings on the ordinance, the board declined to enact it on advice from county counsel that it would face a difficult constitutional challenge.

The county takes the position that the application was denied on its merits and that petitioner is precluded from inquiring into the mental processes of the supervisors to determine whether they were philosophically opposed to all timber harvesting in the county.   The county notes that the findings issued by the board covered environmental considerations and that several supervisors made statements showing that they decided the application on its own merits and not by application of a uniform policy.   It observes that the consideration of the proposed ordinance took place primarily during the months following decision on petitioner's application.

Because the board stated findings in support of its denial, it is doubtful whether any inquiry into the thought process of the supervisors is permitted.   As stated in City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 779, 122 Cal.Rptr. 543, 537 P.2d 375, “in a quasi-judicial proceeding in California, the administrative board should state findings.   If it does, the rule of United States v. Morgan [1941] 313 U.S. 409, 422, 61 S.Ct. 999, 1004, 85 L.Ed. 1429, precludes inquiry outside the administrative record to determine what evidence was considered, and reasoning employed, by the administrators.”

The hearing record itself does not support petitioner's characterization of the situation.   It is true that before the board heard the appeal from denial of a use permit it had declared a policy against commercial timber harvesting and had asked county counsel to prepare a draft for an ordinance accomplishing the policy.   However, from the beginning of the October 15, 1979 hearing, the board made clear that it was considering the application on its merits without reference to the proposed policy.3  During the hearing, various supervisors expressed their environmental concerns with the particular project.   The reasons stated by the board in its order of November 5, 1979 (quoted above) were related to the specific application, not to the proposed ordinance.

The trial court found that “[a]t the time of the hearing on appeal, each member of the Board of Supervisors addressed himself or herself to the merits of plaintiff's application for a conditional use permit.   The supervisors who voted to deny plaintiffs' application stated that each had given a review of plaintiffs' application on the merits and expressed concerns about public safety, public needs and traffic hazards attendant on using Route 152 through the Hecker Pass and Mt. Madonna Park areas.”   It concluded that “plaintiffs were not prevented from receiving a fair hearing on their appeal from the decision of the Planning Commission by virtue of the pendency of a proposed ordinance which, if adopted, would have prohibited timber harvesting in the County.”   While petitioner may disagree with the findings and conclusion, he has not presented a colorable legal attack upon either.

III. Was the Board's Decision Supported by Substantial Evidence?

The parties agree that trial court review of the Board of Supervisors' decision took place under Code of Civil Procedure section 1094.5, and that the review standard is that stated in Northern Inyo Hospital v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 24, 112 Cal.Rptr. 872:  “[the substantial evidence rule] requires a review of the entire record to determine whether findings of an administrative decision are supported by substantial evidence.  [Citations.]  We may not isolate only the evidence which supports the administrative finding and disregard other relevant evidence in the record.”   They disagree about whether the trial court employed the correct standard and about whether substantial evidence supported the board's decision.

A. Did the Trial Court Employ the Correct Substantial Evidence Test?

In its conclusion of law, the trial court stated:  “Isolating that evidence favorable to the position taken by the Board of Supervisors, and based upon the case law applicable, it appears that this court cannot help but conclude that the substantial evidence test set forth by Code of Civil Procedure section 1094.5 has been satisfied.”   Petitioner cites that statement as evidence the trial court applied the “outmoded isolation approach” disapproved in Bixby v. Pierno (1971) 4 Cal.3d 130, 149, fn.22, 93 Cal.Rptr. 234, 481 P.2d 242.

In light of the court's conclusion in the document dated December 4, 1980, and events which preceded entry of judgment, it would appear that the court applied an “isolation” test.   In its memorandum of intended decision, dated September 15, 1980, the court purported to apply the substantial evidence test stated in Beverly Hills Fed. S. & L. Assn. v. Superior Court (1968) 259 Cal.App.2d 306, 66 Cal.Rptr. 183, which permits the court to disregard evidence adverse to the decision under review.  Beverly Hills purported to follow Thompson v. City of Long Beach (1953) 41 Cal.2d 235, 259 P.2d 649, which also spawned Martin v. Alcoholic Bev. etc. Appeals Bd. (1959) 52 Cal.2d 238, 246, 340 P.2d 1.  Martin, in turn, was cited by the court in Bixby v. Pierno, supra, when it criticized the “outmoded isolation approach” to reviewing administrative decisions.   Thus, at least at the time of the memorandum of intended decision, the trial court appeared poised to follow the wrong substantial evidence test.

The county then proposed conclusions of law, including one stating that “in light of the entire record, there is substantial evidence to support the findings of the Board of Supervisors.”   The court signed these proposed findings and conclusions on October 20, 1980.   Petitioner apparently proposed his own counterfindings, but they do not appear in the clerk's transcript.   The county's response to them suggested that county counsel interpreted the memorandum of intended decision as applying the correct substantial evidence test, not the “isolation test” as alleged by petitioner in his proposed conclusion.   Thus, county counsel urged the court to leave the conclusion intact.

Instead of leaving the conclusion intact, however, the court added the words “isolating that evidence favorable to the position taken by the Board” and changed the form of the conclusion.   Had the conclusion signed October 20, 1980 been left intact, one could have argued that county counsel and the court merely misunderstood the implications of the citation to Beverly Hills and that neither understood the test to contemplate “isolation” of the favorable evidence.   However, in light of the court's use of the term “isolating” in its revised conclusion, that argument is not available.   It would seem that the court applied the wrong test.

B. Does Substantial Evidence Support the Board's Decision?

Application of the wrong test by the trial court does not automatically lead to reversal.   As explained in Bixby v. Pierno, supra, 4 Cal.3d at page 149, 93 Cal.Rptr. 234, 481 P.2d 242, footnote 22, review by the appellate court is identical to that of the trial court and if the record reveals substantial evidence to support the administrative decision any error in using the “isolation” approach would not constitute grounds for reversing the judgment.

 Petitioner argues that the Board of Supervisors did not base its decision on evidence but upon unsupported “concerns” held by the individual board members.   Specifically, he notes (1) Supervisor Steinberg's statement of concern for the hazard of logging trucks and her reference to a letter from the City of Gilroy's acting planning director expressing concern about logging truck traffic through the city.   Petitioner points out that the hearing evidence made clear that the logging trucks would not be routed through Gilroy.   Petitioner mentions (2) the finding that there would be degradation of water resources in Bodfish Creek and Hatfield Creek watersheds and that mitigation would not be effective.   He asserts that the evidence contradicts the finding because it reveals that only a minor percentage of each creek's watershed would be affected and reveals that a P.G. & E. clearcutting operation nearby did not cause measurable erosion.   Furthermore, the planning staff's report advised that the potential adverse effects could be mitigated.   Petitioner claims (3) the finding concerning fire danger is at odds with county regulations because it criticizes petitioner for not proposing the burning of waste timber (slash) when the county regulations prohibit open burning.   Petitioner asserts generally that the individual supervisors' “concerns” were mere speculation and conjecture, unsupported by evidence, and he discusses the various concerns expressed by the supervisors.

The county contends that support for the board's decision comes from a combination of (1) the information supplied by the applicant concerning adverse environmental effects, (2) petitioner's failure to satisfactorily prove that proposed mitigating efforts would remove the dangers, and (3) evidence which suggests that another project conducted by petitioner created adverse effects which were not properly mitigated.   The county argues that petitioner had the burden of proving that the project would not be detrimental to the public health or welfare and that the board could reasonably have found that it did not meet that burden.

The raw data concerning petitioner's application came primarily from the “Draft Environmental Assessment and Initial Study” prepared by a consulting firm and submitted by petitioner in support of the application.   That study described the project and its potential impacts and proposed certain mitigating steps to be taken to lessen the impact.   The information in the report and its appendices was analyzed by the planning staff, which then submitted its “Environmental Clearance Record.”   The planning staff essentially summarized the data in petitioner's study, but added environmental concerns and recommendations for mitigation.

The planning staff's overall conclusion was that the harvest plan might result in “significant impacts on the surrounding environment” but that the impacts “may be mitigated to insignificant levels through conditioning and other means.”

Petitioner quarrels with some of the details of the planning staff's environmental assessment.   But the main thrust of his argument, and the position which must be sustained in order for him to prevail, is that the board could not substitute its unsubstantiated “concerns” that mitigation would not be effective for the opinions of petitioner's experts and of the planning staff that the adverse environmental effects could be successfully mitigated.

Under county regulations, in hearing an appeal from denial of a use permit, “[t]he board, on the basis of the evidence submitted at the [de novo] hearing, may grant the appeal when it finds that:

“(1) The proposed uses of the property are essential or desirable to the public convenience or welfare;

“(2) The proposed uses will not impair the integrity and character of the zoning district;

“(3) The proposed uses would not be detrimental to public health, safety or general welfare;  and

“(4) The proposed uses of the property are in harmony with the various elements or objectives of the general plan and the purposes of the ordinance.”  (See also Tustin Heights Assn. v. Bd. of Supervisors (1959) 170 Cal.App.2d 619, 626, 339 P.2d 914.)   Petitioner, as the applicant for the use permit, had the burden of proving that his proposed project would satisfy the requirements of the county ordinance.

In light of the evidence that the proposal would create various adverse environmental effects, petitioner was required to satisfactorily prove that effective mitigation would take place.   Petitioner's experts made suggestions about what mitigating actions should be taken and the planning staff made other suggestions.   But the primary assurances given were that the project would take place under Department of Forestry supervision and that the highest standards of forestry, including restoration of the property, would be imposed.

The county argues that the board was entitled to take a skeptical view of whether the mitigating actions would be taken and whether forestry officials would enforce full compliance.

Petitioner argues correctly that expressions of skepticism by Supervisor Diridon and similar statements by other supervisors cannot substitute for evidence.   However, the issue is not whether these statements could constitute evidence.   The issue is whether the board was required uncritically to accept the opinions of petitioner's experts and of the planning staff that adverse effects would be mitigated merely because no contrary opinion testimony was presented.   If the board could properly reject the opinions about mitigation, then its decision was supported by substantial evidence that significant environmental degradation and safety hazard would be caused by the project.

The trier of fact, in this case the Board of Supervisors, is entitled to disbelieve even the uncontradicted testimony of a witness or witnesses if the testimony is inherently improbable or if the witness has an interest in the matter under dispute.  (See Witkin, Cal. Evidence (2d ed. 1966) Introduction of Evidence at Trial, §§ 1112–1113, pp. 1028–1029.)   Furthermore, “[a]n opinion, expert or non-expert, will be rejected ․ if unsupported by the facts from which it is derived.”  (Id., at § 1116, p. 1032;  see People v. Coogler (1969) 71 Cal.2d 153, 166, 77 Cal.Rptr. 790, 454 P.2d 686.)   As is evidenced by the comments of Supervisor Diridon, the board here found it inherently improbable that all the suggested steps in mitigation would be properly carried out and that supervision by forestry officials would effectively police the operation.

Had petitioner's experts supported their opinions by evidence that similar operations had been carried out by the same logging company with similar permit conditions and similar supervision and that mitigation efforts had succeeded in those operations, the board would have had difficulty rejecting the opinions without counterevidence.   However, the opinions in this case were not accompanied by such factual support.   Petitioner's experts could cite only the logging company's reputation for a good operation and the existence of forestry regulations and enforcement officers in support of their opinions.   The planning staff representative explained to the Planning Commission that the environmental impact would be reduced to acceptable levels only “if it were a perfectly clean operation that followed all the regulations of the county Timber Harvest Ordinance and State Forestry practices, and that the project was adequately inspected during and after the operation,” but did not provide assurances that the regulations would be followed or that inspections would be rigorous.

Under these circumstances, while the board would have been justified in accepting the opinions of the planning staff and of petitioner's experts, it was not compelled to do so.   It was permitted to remain skeptical and conclude, as it did, that there were significant risks to the public health, safety, and welfare and that petitioner had not sufficiently proved that the proposals for mitigation would be carried out and would accomplish their goals.

The alternative writ is discharged and the peremptory writ is denied.

FOOTNOTES

1.   Petitioner argues in his Replication that Government Code sections 65929 and 65933 defining, respectively, “lead agency” and “responsible agency” speak only of the agency responsible for approving a “project,” which is defined by section 65931 as a broader concept than a “development project” (see § 65928), and that, therefore, the definition of development has no bearing on the question of whether an agency is a lead or a responsible agency.   This argument overlooks the fact that the time limitations of sections 65950 and 65952 apply specifically to “development projects,” not to “projects” generally, and thus we are concerned with whether the project at issue is a development project.

2.   The county seems to argue that the timber harvesting operation is not a development for the purpose of approval of a timber harvesting plan under the Forest Practice Act of 1973 but is a development for the purpose of a use permit application under its zoning ordinances and that it is clearly the lead agency for the latter purpose.   Our reading of section 65927 is that a timber harvesting operation is not a development for any purpose under Chapter 4.5.

3.   Supervisor Steinberg said:  “I feel this is an item outside the ordinance completely.   It has nothing to do with our harvesting ordinance.   If we decide on that, it will stand on its own merits.   This is a case that was presented before the ordinance and that we should hear it on the merits of the case itself․”  The county counsel advised:  “As Supervisor Steinberg indicated, the matter has, in fact, been divorced from the proceedings related to the ordinance․”  Supervisor Cortese added:  “It would seem to me that the matter doesn't relate directly to the potential for a future ordinance.”

FEINBERG, Associate Justice.

WHITE, P. J., and BARRY–DEAL, J., concur.