GORSUCH v. SOUTHLAND CORPORATION

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Court of Appeal, Fifth District, California.

Joan GORSUCH, et al., Plaintiffs and Appellants, v. The CITY OF SONORA, et al., Defendants and Respondents. The SOUTHLAND CORPORATION, Real Party in Interest.

Civ. F004961.

Decided: October 10, 1985

Winger & Ringhoff and Stephen J. Ringhoff, Modesto, for plaintiffs and appellants. Richard Matranga and James A. Boscoe, City Attys. (Sonora), Sonora, for defendants and respondents. Bartko, Welsh & Tarrant, Charles G. Miller, Robert H. Bunzel and James A. Boscoe, San Francisco, real party in interest.

OPINION

We are called upon to review a struggle to determine whether or not a convenience store may be erected within the historic zone of the City of Sonora.

The protagonists are appellants, three in number, comprising an unincorporated association of Sonora residents;  respondents, the City of Sonora and its city council (hereafter Sonora);  and real party in interest, the Southland Corporation (hereafter Southland), applicant for a permit to erect a 7–11 store.

The issue came before the Sonora City Council and the council voted three-to-two in favor of granting the use permit.   Upon the superior court's denial of their application for relief, appellants take this appeal.

STATEMENT OF FACTS

In the city of Sonora there are a number of buildings which exemplify “gold rush or mother lode” architecture of the 1849–1880 period.   Such architecture is economically important to the tourist industry and to the people of Sonora.   To protect and enhance the historic gold rush period architecture and preserve the buildings and character of those areas of the city which are either historic in nature or are close to historic structures, Sonora created a “design review/historic zone” in a 1979 city ordinance.1  A design review/historic committee was likewise established for the review and approval of all building permit applications for new construction, demolition or exterior alterations, additions or modifications of any building, structure or part thereof on commercially zoned property, based upon certain considerations specified in the ordinance.

In September 1983, Southland filed with Sonora a design/review-use permit application for the construction of a 7–11 convenience store on an abandoned gas station site.   On October 11, 1983, the Sonora Planning Commission (sitting as the design review/historic committee) approved the application.   Appellants, as individuals and members of an unincorporated association, administratively appealed the permit approval to the Sonora City Council.   The appeal was heard and denied.

Appellants originally sought a writ of mandamus in the superior court to require a public hearing on Southland's application.   By stipulation, the mandamus petition was dismissed and the Sonora City Council conducted a de novo public hearing on Southland's application.   Subject to certain conditions, the council approved Southland's application a second time, purportedly in accordance with chapter 17.32 providing for a “design review/historic zone.”   Appellants then filed in the superior court a petition for administrative mandamus (Code Civ.Proc., § 1094.5), injunctive relief, traditional mandamus (Code Civ.Proc., § 1084 et seq.) and declaratory relief.

The trial court, on September 27, 1984, granted Southland's motion for judgment as to each cause of action, as follows:

“2. The decision of the City Council approving the application of Real Party in Interest is supported by substantial evidence.

“3. Prior to the de novo proceedings before the City Council, Petitioners were aware that no EIR or negative declarations was had with respect to the application of Real Party in Interest.   They also had knowledge of earlier ordinances adopted by the City of Sonora pursuant to which the City of Sonora regarded the application of the Real Party [i]n Interest as exempt under the California Environmental Quality Act.

“During the proceedings before the City Council counsel for Petitioners framed a question to a witness using the term EIR.

“However, the record of the proceedings before the City Council is void of any challenge by Petitioners of the absence of compliance with CEQA nor was there a challenge to the ordinance exempting CEQA compliance.   The challenge was not had until May 9, 1984, when Petitioners filed their Petition for Mandamus.

“Petitioners have failed to exhaust their administrative remedies by not raising such challenges during the de novo proceedings.  Coalition for Student Action vs. City of Fullerton (1984) 153 CA3d 1194[, 200 Cal.Rptr. 855;]  City of Walnut Creek v. County of Contra Costa (1980) 101 CA3d 1012 [, 162 Cal.Rptr. 224.]

“The discussions between counsel prior to commencement of the de novo proceedings respecting CEQA provisions are neither a part of the proceedings before the Council nor do they constitute notice to the Council of Petitioners ['] position.

“4. The exceptions asserted by Petitioners['] counsel to the exhaustion requirements are purely speculative and are unsupported by the administrative record.”

OVERVIEW

 The California Environmental Quality Act (CEQA) 2 requires various state and local governmental agencies to submit environmental impact reports (EIR) before they carry out certain projects.  (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 254, 104 Cal.Rptr. 761, 502 P.2d 1049.)   The City of Sonora has enacted guidelines for implementation of CEQA (guidelines),3 as required by Public Resources Code, section 21082.   Sonora's chapter 17.32 “design review/historic zone” ordinance, as originally enacted, sets forth a procedure for “compatability of design” review for construction proposed within those historic districts.   Chapter 17.32 was revised in 1982 to require applications for construction to be reviewed by the City Planning Commission as to both “compatability of design” and “compatability of use.”   In appendix “M” to its guidelines, Sonora endeavors to set forth exemptions to the CEQA.4  Appendix “M” denominates a “historic review permit” application as “ministerial” for CEQA purposes;  likewise, “design review permit” is “ministerial.”   However, “permitted use” or “non conforming use” permits are “discretionary” for CEQA purposes.

Such classifications take on significance under CEQA's statutory scheme.   Public Resources Code section 21080 provides that CEQA shall not apply to “ministerial” projects 5 and shall not apply to numerous enumerated “discretionary” projects.6  Elsewhere, throughout the statute, various other discretionary projects are exempted from CEQA.   In addition, section 21084, and regulations adopted pursuant to it, provide lists of classes of discretionary projects which are declared to have no significant effect on the environment and are therefore exempt from CEQA.7  For example, one of these “categorical exemptions” is described as “New Construction or Conversion of Small Structures”: 8

“Class 3 consists of construction and location of limited numbers of new, small facilities or structures;  installation of small new equipment and facilities in small structures;  and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.   The numbers of structures described in this section are the maximum allowable on any legal parcel or to be associated with a project within a two-year period.   Examples of this exemption include but are not limited to:

“․

“(c) Stores, motels, offices, restaurants, and similar small commercial structures not involving the use of significant amounts of hazardous substances, if designed for an occupant load of 30 persons or less, if not constructed in conjunction with the building of two or more such structures.   In urbanized areas, the exemption also applies to commercial buildings on sites zoned for such use, if designed for an occupant load of 30 persons or less if not constructed in conjunction with the building of four or more such structures and if not involving the use of significant amounts of hazardous substances.”

Into this picture come Southland, with its approved permit to build a 7–11 convenience store, and appellants, claiming that (1) the chapter 17.32 review process is discretionary, necessitating CEQA compliance, and alternatively, (2) appendix “M” and the chapter 17.32 review process are in violation of CEQA.

It is by no means clear from the record in this case that Southland's application would or would not be subject to the mandates of CEQA.   For example, it is unknown whether Sonora classified the project “ministerial” as a “historic review” project and hence, exempt.   Alternatively, how the city dealt with the “compatability of use” determination, for CEQA purposes, is unknown.   As applied to a project proposed in the “historic zone,” its appendix “M” purporting to define the application of CEQA, is ambiguous.   If “compatability of use” is deemed to be a discretionary determination,9 the project may very well be exempt under the small structures categorical exemption.   The latter requires the agency to make certain factual findings as to the purpose of the building, its size, occupant load, and connection with other structures.   Sonora may have also applied other exemptions available in the CEQA statute, its regulations, or in local ordinance.

As previously noted, the trial court found, and appellants admit, that “the record of the proceedings before the City Council is void of any challenge by petitioners of the absence of compliance with CEQA nor was there a challenge to the ordinance exempting CEQA compliance.   The challenge was not had until May 9, 1984, when Petitioners filed their Petition for Mandamus.”

The trial court went on to conclude appellants failed to exhaust their administrative remedies.   In denying appellants relief, the trial court did not distinguish between appellants' alternate mandamus theories.   We will attempt to deal with each.

Administrative Mandamus

“It is fundamental that the review of administrative proceedings provided by section 1094.5 of the Code of Civil Procedure is confined to the issues appearing in the record of that body as made out by the parties to the proceedings, though additional evidence, in a proper case, may be received.  [Citation.]   It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or ‘skeleton’ showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court.  [Citation.]   The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play.”  (Bohn v. Watson (1954) 130 Cal.App.2d 24, 37, 278 P.2d 454.)

A factual setting, somewhat similar to the case at bench, is presented in Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 200 Cal.Rptr. 855.   There, the City of Fullerton and a developer sought to construct a hotel and conference center on a state university campus.   After conducting studies pursuant to CEQA regulations, a finding was made that the complex would have no significant effect on the environment and a negative declaration was prepared.   Noticed public hearings were held before both the Fullerton Planning Commission and a joint hearing of the Fullerton City Council and Redevelopment Agency.   At these hearings, no one criticized the recommendation to prepare a negative declaration and no one claimed an EIR was required.

Several weeks after the application was approved, appellants filed a writ of mandate alleging for the first time that the failure to prepare an EIR violated CEQA.   In upholding the denial of the writ, the court stated:

“This ․ reflects petitioners' misunderstanding of the doctrine of exhaustion of administrative remedies, which precludes judicial review of issues, legal and factual, which were not first presented at the administrative agency level.  (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412 [194 Cal.Rptr. 357, 668 P.2d 664].)  Here, the petition alleges numerous significant environmental effects, challenges the failure to prepare EIR's, and claims approval of the negative declarations was not supportd by substantial evidence;  but, as petitioner's attorney conceded during oral argument, most of these issues were not raised at the administrative level, particularly the objection to proceeding by way of negative declaration.   For this reason, there is simply no jurisdictional basis for judicial review of the decision to not secure an EIR.  (Id., at p. 417 [194 Cal.Rptr. 357, 668 P.2d 664];  Laird v. Workers' Comp. Appeals Bd. (1983) 147 Cal.App.3d 198, 204–205 [195 Cal.Rptr. 44].)

“Petitioners rely on generalized environmental comments at public hearings to satisfy the exhaustion doctrine.   It is difficult to imagine any derogatory statement about a land use project which does not implicate the environment somehow.   More is obviously required.”  (Coalition for Student Action v. City of Fullerton, supra, [153 Cal.App.3d] at p. 1197 [200 Cal.Rptr. 855].)

In the present case, appellants offered to the court below, by way of affidavit, evidence that counsel for appellants raised the issue of an EIR in a private meeting with the Sonora City Attorney and Southland's counsel immediately prior to the de novo hearing before the city council.   The affidavit further asserted that the city attorney's response was that the project was exempt from CEQA.   We need not resolve the issue as to whether such evidence may be received by the court below.   The result, in any event, is the same;  the issue as to CEQA compliance was not raised, directly or indirectly, before the city council.   The city council's reaction to this issue, had it been raised, remains unknown.  (Doyle v. City of Chino (1981) 117 Cal.App.3d 673, 682–683, 172 Cal.Rptr. 844.)

It is plain that, at the de novo hearing, appellants' concerns related to an interest in a preservation of the historical character of Sonora's historical zone and an interest in controlling commercial development near their residences and businesses.   Appellants' counsel very ably addressed these issues in detail.   It appears he prevailed upon the city council to permit a trial-like format for the de novo hearing in which the council reconsidered the use permit.   Opening statements were made, numerous witnesses were called by both sides, 21 in all, and numerous exhibits were received into evidence.   The hearing lasted some six hours in three sessions.   All witnesses were subject to both direct, cross and redirect examination.   The city attorney sat as hearing officer, ruling on objections;  at the conclusion the city council heard public statements made by persons from the general public.

During the course of this hearing, no mention was made or inferred as to the necessity of an EIR or negative declaration for this project.   This is not to say that no environmental issues were considered.   To the contrary, expert and nonexpert testimony was received on about every conceivable issue, including traffic (vehicular and pedestrian), alcohol sales, noise level, parking, truancy, magazine display, vandalism, compatability of architecture, floor plan, video games, commercial zone impact, tax revenues, streetscape, litter, signs, compatability of retail use and general aesthetics.

It is evident that had the EIR issue been raised that the city council was in a position to respond, and by right should have had an opportunity to respond, within the statutory framework permitted by CEQA and local law.   For example, the city council may have characterized its function as “historic review/design review” and therefore “ministerial” and CEQA-exempt.   In the alternative, the council may have concluded its function was to determine compatability of use and therefore the process was “discretionary,” necessitating CEQA compliance.   Moreover, the council may have determined that a categorical exemption applied, for instance, the small structure categorical exemption.10

 Certainly this discussion of Sonora's alternatives is speculative.   However, it demonstrates the basis for the principle of exhaustion of remedies.   Neither this court, nor the court below, is equipped or authorized to exercise the discretion reposed exclusively in an elected city council.   Only it can make the pertinent factual findings and apply a choice of laws including the application of its own ordinances.   Even could we review it, this case clearly does not present a “pure question of law [upon] undisputed facts,” or an issue of constitutional dimension, narrow grounds which sometimes afford review.  (Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512.)   Since appellants have failed to avail themselves of the remedy before the logical body, they may not do so here.  (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417, 194 Cal.Rptr. 357, 668 P.2d 664.

Accordingly, the trial court was correct in its ruling denying relief in the administrative mandamus cause.

Traditional Mandamus

Appellants' claim related to the remedy of traditional mandamus (and their parallel claim for declaratory relief) is not set forth precisely.   However, appellants appear to contend that Sonora's appendix “M” violates CEQA in that appendix “M” provides that review of projects within the historic zone is ministerial and therefore CEQA-exempt.

Traditional or ordinary mandamus is sought pursuant to Code of Civil Procedure section 1084 et seq., as distinguished from the remedy of administrative mandamus, Code of Civil Procedure section 1094.5 previously discussed.   Witkin compares the two remedies as follows:

“[Code of Civil Procedure section] 1094.5 ratified the judicially developed remedy, but did not create a wholly new system of review;  ordinary [traditional] mandamus procedure governs except as modified by the statute:  ‘[A]dministrative mandamus did not thereby acquire a separate and distinctive legal personality.   It is not a remedy removed from the general law of [traditional] mandamus or exempted from the latter's established principles․' ”  (8 Witkin, Cal. Procedure (3d ed. 1985) § 245, p. 869.)

 In the context of a proceeding before an administrative agency, as in the instant case, the distinction is even less clear.   Moreover, a claim, like appellants', that an agency's implementing ordinance or regulation violates state law may be presented under either theory of mandamus.  (Woods v. Superior Court (1981) 28 Cal.3d 668, 672–677, 170 Cal.Rptr. 484, 620 P.2d 1032;  Grupe v. California Coastal Com. (1985) 166 Cal.App.3d 148, 162, 212 Cal.Rptr. 578.)

 These decisions, Woods and Grupe, as well as City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019–1021, 162 Cal.Rptr. 224, also make clear that the remedy of traditional mandamus is not a refuge from the doctrine of exhaustion of administrative remedies.   That is, administrative remedies must be exhausted unless there is a showing, not made in the instant case, that the remedy's pursuit would be futile or would serve no useful purpose.  (Phelan v. Superior Court (1950) 35 Cal.2d 363, 372, 217 P.2d 951;  Top Hat Liquors v. Dept. of Alcoholic Beverage Control (1974) 13 Cal.3d 107, 110–112, 118 Cal.Rptr. 10, 529 P.2d 42.) 11  Hence, no lengthy discussion is required.   The name of the remedy sought cannot, on the facts of this case, produce a different result.   It is apparent that had appellants raised the claim that Sonora's chapter 17.32 and appendix “M” violated state law (CEQA), the city's response would be part of the record of this case.   As stated in City of Walnut Creek v. County of Contra Costa, supra, 101 Cal.App.3d at page 1021, 162 Cal.Rptr. 224:

“[T]here is a strong policy reason for allowing the governmental body which passed legislation to be given a chance to interpret or clarify its intentions concerning the legislation.   The construction placed on a piece of legislation by the enacting body is of very persuasive significance.  [Citations.]   Also, construction of a statute by officials charged with its administration must be given great weight.”

The purpose for the rule is particularly evident in the instant case.   Appellants' claim is based upon the assumption that appendix “M” provides that the review process for use permits within the historic zone is “ministerial” and hence CEQA-exempt.   In light of the August 19, 1982, revision of chapter 17.32 adding “compatability of use” review, such an assumption may be incorrect.   Depending upon the city's interpretation of its ordinances, any conflict with state law (CEQA), and appellants' claim, could be obviated.

 In any event, appellants' challenge to appendix “M” is time-barred.

 Public Resources Code section 21167 12 operates as a special statute of limitations as to “any action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a public agency on the grounds of noncompliance with [CEQA].”  (Walters v. County of Plumas (1976) 61 Cal.App.3d 460, 469, 132 Cal.Rptr. 174.)   The section goes on to categorize various types of actions alleging CEQA violations.   Appellants alleged a subdivision (d) cause of action, to wit:  A public agency (i.e., Sonora) has improperly determined that a project (appendix “M” and its application to chapter 17.32) is not subject to CEQA.13

Public Resources Code section 21167, subdivision (d), sets forth alternative limitation periods:  (1) 35 days when a Public Resources Code section 21152, subdivision (b), notice is filed by the local agency;  and (2) 180 days if no such notice has been filed.14

There is no evidence in the record that Sonora filed a Public Resources Code section 21152, subdivision (b), notice that use permit approvals were ministerial under Public Resources Code section 21080, subdivision (b)(1), and therefore CEQA-exempt.   Thus, the 35-day limitation does not apply in this case.

The 180-day limitation of subdivision (d) begins to run as of the date of the “public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days after commencement of the project.”   At the latest, an action to challenge the effect of appendix “M” on chapter 17.32 for purposes of CEQA-compliance should have been filed within 180 days of August 16, 1982, the date chapter 17.32 was amended to require compatability of use review.   The instant action was filed May 9, 1984.   Clearly, appellants' causes 15 were not timely filed.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Sonora Municipal Code, chapter 17.32 et seq. (Hereafter chapter 17.32.)

2.   Public Resources Code, section 21000 et seq.

3.   “Guidelines for the Implementation of the California Environmental Quality Act of 1970,” 1000 et seq. (1978 rev.).

4.   Appendix “M” lists some 17 permit categories and 10 project categories with columns opposite each directing whether or not each category is “ministerial,” “discretionary,” and “exempt.”

5.   Defined in Title 14, California Administrative Code, section 15369, as follows:“ ‘Ministerial’ describes a governmental decision involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project.   The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision.   A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out․”

6.   Defined in Title 14, California Administrative Code, section 15357, as follows:“ ‘Discretionary project’ means a project which requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations․”

7.   Id., at sections 15300–15329.

8.   Id., at section 15303.

9.   In Day v. City of Glendale (1975) 51 Cal.App.3d 817, 821–822, 124 Cal.Rptr. 569, the court held that a local agency did not have the unfettered discretion to classify projects which clearly involved discretionary decisions, as ministerial and hence exempt from CEQA.

10.   See footnote 8, ante.

11.   See also Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 109 P.2d 942, a case decided prior to the enactment of administrative mandamus (Code Civ.Proc., § 1094.5) in 1945.   The exhaustion requirement was held to apply to a claim, in mandamus, that an act of a state agency was contrary to state law (California Unemployment Insurance Act).

12.   Public Resources Code section 21167 provides:“Any action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a public agency on the grounds of noncompliance with this division shall be commenced as follows:“(a) An action or proceeding alleging that a public agency is carrying out or has approved a project which may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment shall be commenced within 180 days of the public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days after commencement of the project.“(b) Any action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment shall be commenced within 30 days after the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.“(c) Any action or proceeding alleging that an environmental impact report does not comply with the provisions of this division shall be commenced within 30 days after the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152 by the lead agency.“(d) Any action or proceeding alleging that a public agency has improperly determined that a project is not subject to the provisions of this division pursuant to subdivision (b) of Section 21080 or pursuant to Section 21085 or 21172 shall be commenced within 35 days after the filing by the public agency, or person specified in subdivision (b) or (c) of Section 21065, of the notice authorized by subdivision (b) of Section 21108 or subdivision (b) of Section 21152.   If such notice has not been filed, such action or proceeding shall be commenced within 180 days of the public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days after commencement of the project.“(e) Any action or proceeding alleging that any other act or omission of a public agency does not comply with the provisions of this division shall be commenced within 30 days after the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.”

13.   Section 1037 of Sonora's guidelines (see fn. 3, ante ) provides, in relevant part:“Project.“(a) Project means the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately, that is any of the following:“(1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities, clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof.”This definition is virtually identical to that of “Project” as contained in section 15378, subdivision (a)(1), of the state CEQA regulations.  (14 Cal.Admin.Code, § 15378.)

14.   Public Resources Code section 21152, subdivision (b), provides, in pertinent part:  “Whenever a local agency determines that a project is not subject to this division pursuant to subdivision (b) of Section 21080 or pursuant to Section 21085 or 21172, and it approves or determines to carry out the project, it, or the person specified in subdivision (b) or (c) of Section 21065, may file notice of the determination with the county clerk of the county, or counties, in which the project will be located.”

15.   The statute of limitations applicable to the traditional mandamus cause is equally applicable to the declaratory judgment claim.  (Leahy v. Dept. of Water & Power (1946) 76 Cal.App.2d 281, 285, 173 P.2d 69.

RITCHEY, Associate Justice *. FN* Assigned by the Chairperson of the Judicial Council.

PAULINE DAVIS HANSON, Acting P.J., and MARTIN, J., concur.