AGRI EMPIRE v. BOARD OF SUPERVISORS OF RIVERSIDE COUNTY (1992)

OPINION

INTRODUCTION

This appeal concerns a parcel map land division dispute which has arisen between appellant Agri–Empire, a California corporation which owns a parcel of unincorporated Riverside County territory approximately 685 acres in size (hereinafter, the subject property), and the Board of Supervisors of the County of Riverside—which Board has, to date, not issued a final approval or disapproval of Agri–Empire's application for a tentative parcel map concerning the subject property.¹  The primary focus of the dispute revolves around the conflict between, on the one hand, Agri–Empire's contention that its application for a tentative parcel map has already been approved by operation of law under the applicable provisions of the Subdivision Map Act (Gov.Code, § 66410, et seq.—hereinafter, SMA) and (what is known as) the Permit Streamlining Act (Gov.Code, § 65920, et seq.—hereinafter, PSA) and, on the other hand, the Board's contention that Agri–Empire's application is, and at all times has been, subject to provisions of the California Environmental Quality Act (Pub.Resources Code, § 21000, et seq.—hereinafter, CEQA), County rules implementing CEQA and administrative appeal provisions which preclude any such approval by operation of law.²

Agri–Empire petitioned the trial court for a writ of administrative mandate (Code Civ.Proc., § 1094.5) to compel the Board to set aside its decision to require an environmental impact report (EIR) for the tentative parcel map application ³ and to certify the approval of Agri–Empire's tentative parcel map application as last conditionally approved by the Commission.⁴  The trial court denied Agri–Empire's petition and Agri–Empire has appealed from the judgment entered upon that denial.   We conclude that Agri–Empire's position in this matter is well taken, that the authorities marshalled by the Board in support of its position do not compel a contrary result, and that the decision of the trial court must be reversed and the matter remanded to the trial court with directions for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

On January 15, 1987, Agri–Empire submitted an application to the Department for a parcel map division of the subject property into 20–acre–minimum parcels (Tentative Parcel Map No. 22279—hereinafter, TPM 22279).⁵  As eventually finalized, the application for TPM 22279 sought approval of a 26–unit parcel map under Schedule “I” of the County's land division ordinance, Ordinance No. 460.⁶  (See Ord. § 10.14.)   As noted by the Department's staff, the subject property is designated on Riverside County's advisory map as being both “rural agricultural” and “rural mountainous” in character.

As a part of the Department's “processing” of Agri–Empire's application, the matter was referred to the Department's Land Development Committee for review.  (Ord. § 1.3.)   This Committee solicited responses by other governmental entities to the application, prepared an initial evaluation of the application and prepared an initial environmental assessment of the proposed land division (EA 31312) ⁷ —which assessment recommended the issuance of a negative declaration for the application pursuant to CEQA section 21064.⁸  The parties are agreed that by no later than November 7, 1988 Agri–Empire's application for TPM 22279 had been completed and accepted by the Department.

On November 7, 1988, the Director conducted a hearing on TPM 22279.   Under Ordinance No. 460:  (1) “The ․ Director is authorized to approve, conditionally approve or disapprove all [Schedule “I”] tentative map land divisions and to report the action directly to the Board ․ and the land divider.”  (Ord. § 1.2(C));  and (2) “The action of the ․ Director on a tentative Schedule ․ ‘I’ map shall be final unless the final decision is appealed by the land divider or any interested party.”  (Ord. § 6.6(B).)  Further, under section 408(a) of the County's “Rules For Riverside County Implementing The California Environmental Quality Act”: ⁹  “The adoption of the Negative Declaration by the [Director] is final unless County ordinance provides for an appeal of the decision on the proposed project and such appeal is filed within the prescribed time.   All such appeals shall be deemed an appeal of both the adoption of the Negative Declaration and the decision on the project itself.”   Following the hearing on Agri–Empire's application for TPM 22279, and pursuant to this authority under Ordinance No. 460, the Director conditionally approved Agri–Empire's application and adopted a negative declaration therefor.   The Director's approval of TPM 22279 was subject to 37 different conditions which had to be met before Agri–Empire could obtain a final parcel map for the subject property.   As noted above, this approval was, absent an appeal, final in all respects.   The Director forwarded notice of his determinations respecting TPM 22279 to the Board pursuant to section 6.5(C)(4) of Ordinance No. 460, and on January 3, 1989 the Board ordered that the Director's notice, report and adoption of the negative declaration be received and filed.

Agri–Empire itself timely appealed to the Commission from the Director's November 7, 1988 determinations respecting TPM 22279 pursuant to section 6.7(B) of Ordinance No. 460.   In particular, Agri–Empire's appeal challenged the validity of the Director's “Condition No. 14”—a condition which had been imposed by the Director on the approval of the tentative parcel map and which related to various water rights issues which were implicated by a dam located on one of the proposed parcels.   Agri–Empire's appeal was heard by the Commission on January 25, 1989.   As noted above, this appeal acted under County Rule No. 408(a) as an appeal of both the Director's approval of TPM 22279 and the Director's adoption of a negative declaration with respect thereto.   Thus, the Commission's appeal hearing was more in the nature of a hearing de novo on Agri–Empire's application for a parcel map.

Following an extensive hearing, the Commission continued the matter to March 15, 1989 with directions that the Department staff prepare a more extensive initial study of Agri–Empire's application.   The Department staff completed such a study, including a new environmental assessment of the proposed project (EA 33614)—which study recommended that TPM 22279 be approved, that a negative declaration be adopted for the project, and that Agri–Empire's request that “Condition No. 14” be deleted from the conditions attending the approval of TPM 22279 be granted.

At the continued March 15, 1989 hearing, the Commission conducted a lengthy inquiry into the entirety of the matter.   Following the hearing, the Commission voted in favor of (a) approving TPM 22279, (b) adopting a negative declaration for the project in light of EA 33614, (c) approving the deletion of “Condition No. 14” from the conditions attending the approval of TPM 22279 and (d) modifying somewhat the other conditions attending the approval of TPM 22279.   The Commission forwarded notice of its determinations, its approval of TPM 22279 and its adoption of a negative declaration for that parcel map to the Board and the Board ordered the same to be received and filed on May 30, 1989.   In the absence of an appeal, these determinations by the Commission would have been final in all respects.   Once again, however, an appeal was filed.

On June 8, 1989, the Anza Water Conservation Association (AWCA), together with certain individuals, timely appealed the Commission's March 15, 1989 decision on TPM 22279 to the Board pursuant to section 6.7(B) of Ordinance No. 460.¹⁰  AWCA's application for an appeal hearing was accompanied by an “Appeal Brief” and other documents which made clear that the basis of the appeal was an alleged failure by the County to abide by the requirements of CEQA in approving Agri–Empire's application for approval of TPM 22279 (and, more particularly, in adopting a negative declaration with respect to approval of the tentative parcel map).   AWCA's appeal was set by the Clerk of the Board for hearing before the Board on July 25, 1989.   Under County Rule 408(a), just as was the case with Agri–Empire's appeal of the Director's imposition of “Condition No. 14” on the approval of TPM 22279 to the Commission, AWCA's appeal acted both as an appeal of the Commission's approval of TPM 22279 and as an appeal of the Commission's adoption of a negative declaration with respect to that parcel map.   As was the case with the Commission's appellate hearing of Agri–Empire's appeal, the Board's appellate hearing of AWCA's appeal was in the nature of a de novo hearing on Agri–Empire's application for a tentative parcel map.

The Board heard AWCA's appeal on July 25, 1989 and took testimony both in favor of and in opposition to the appeal.   At the conclusion of the hearing session, the Board voted to continue the entire matter to January 9, 1990 so as to allow the State time to complete an environmental assessment review concerning the dam which was at issue in TPM 22279's “Condition No. 14.”   Agri–Empire objected to the continuance.

AWCA's appeal again came before the Board on January 9, 1990.   At that hearing, over strenuous objection by Agri–Empire (including the argument that TPM 22279 had already been approved by operation of law under the applicable provisions of the SMA and the PSA, the Board by unanimous vote:  “ORDERED that the matter [be] referred to the Planning Staff to prepare a focused EIR in the categories of history, archaelogy [sic], traffic and dam inundation and correlative safety;  and that discussions with the Division of Dam Safety on their findings to date be incorporated since that is the major issue of concern to all.”   No continuance date was set for further proceedings on AWCA's appeal—it having been the Board's intention (apparently) that the entire CEQA/EIR process begin virtually anew at the Department Staff/Planning Commission level of proceedings.

On March 8, 1990, Agri–Empire filed the within petition for a writ of administrative mandate in the court below to:  (a) compel the Board to set aside its decision of January 9, 1990 to require an EIR for TPM 22279;  and (b) compel the Clerk of the Board to certify the approval of TPM 22279 as last conditionally approved by the Commission pursuant to section 65956 (a provision of the PSA) and sections 66452.4 and 66452.5 (provisions of the SMA).   The trial court issued an alternative writ and stayed the operation of the Board's January 9, 1990 directive that an EIR be prepared for TPM 22279.   The matter came on for hearing before the trial court on September 7, 1990, at which time the trial court denied the petition.   On September 21, 1990, the trial court entered a formal judgment in accordance with its previous denial of the petition and continued its stay of the Board's January 9, 1990 directive pending an appeal from the judgment.

Agri–Empire timely appealed from the judgment entered below.   By our own order, we continued in effect the stay on the Board's January 9, 1990 directive pending resolution of the appeal.

 The issue presented by Agri–Empire's appeal is a relatively straightforward question of law: ¹¹  Have sections 65956, 66452.4 and/or 66452.5, singly or in combination, operated in this case so as to “approve” (by operation of law) TPM 22279 as it was conditionally approved by the Commission on March 15, 1989?   We conclude that sections 66452.4 and 66452.5 have jointly operated in such fashion in this case and that the Board should be ordered to certify the approval of TPM 22279 as last conditionally approved by the Commission on March 15, 1989 and vacate its January 9, 1990 directive to conduct further CEQA proceedings (including the preparation of a “focused” EIR) with respect to that parcel map application.

 Additional facts will be referred to, as needed, in the discussion which follows.¹²

DISCUSSION

I.NON–APPLICABILITY OF SECTION 65956 OF THE PSA

Prior to discussing those statutory provisions which are dispositive of the matter at hand, it is helpful to expressly eliminate from the discussion that statute which is not applicable to the matter at hand and, therefore, is not so dispositive—section 65956 of the PSA.

 Agri–Empire argues that the PSA—and, in particular, section 65956, subdivision (b) of the PSA—compels a “deemed approval” of TPM 22279 in this case.   Agri–Empire's argument is based on an interrelated reading of the following two statutory provisions:

(1) Section 65950, in pertinent part:

“Any public agency which is the lead agency for a development project for which an environmental impact report is prepared pursuant to Section 21100 or 21151 of the Public Resources Code shall approve or disapprove the project within one year from the date on which an application requesting approval of the project has been received and accepted as complete by that agency.   If a negative declaration is adopted or if the project is exempt from Division 13 (commencing with Section 21000) of the Public Resources Code, the development project shall be approved or disapproved within six months from the date on which an application requesting approval of the project has been received and accepted as being complete by that agency, unless the project proponent requests an extension of the time limit.”

(2) Section 65956, subdivision (b), in pertinent part:

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

The shortcoming in Agri–Empire's argument is that it completely overlooks another provision of the PSA, section 65922, which states, in pertinent part:  “The provisions of this chapter shall not apply to the following:  ․ (b) Administrative appeals within a state or local agency or to a state or local agency.”   There can be no doubt but that the entirety of the “processing” of TPM 22279 subsequent to the Director's November 7, 1988 conditional parcel map approval has consisted of a series of “administrative appeals”—and there is no argument by Agri–Empire that TPM 22279 was somehow deemed approved by the PSA prior to the Director's approval.   Consequently, TPM 22279 has not been “deemed approved” under the provisions of the PSA.

II.

APPLICABILITY OF SECTIONS 66452.4 AND 66452.5 OF THE SMA

A careful reading of sections 66452.4 and 66452.5, subdivision (d) of the SMA, on the other hand, compels the conclusion that under the undisputed facts of this case TPM 22279 has been deemed approved by operation of law pursuant to the pertinent portions of those statutory provisions.

In pertinent part, section 66452.4 provides:

“If no action is taken upon a tentative map ․ by the legislative body within the time limits specified in this chapter or any authorized extension thereof, the tentative map, as filed, shall be deemed to be approved, insofar as it complies with other applicable requirements of this division and local ordinance, and it shall be the duty of the clerk of the legislative body to certify or state his or her approval.”

Section 66452.5, subdivision (d) provides:

“(d) Any interested person adversely affected by a decision of the advisory agency or appeal board may file a complaint with the governing body concerning any decision of the advisory agency or appeal board.   The complaint shall be filed with the clerk of the governing body within 10 days after the action of the advisory agency or appeal board which is the subject of the complaint.   Upon the filing of the complaint, the governing body shall set the matter for hearing.   The hearing shall be held within 30 days after the filing of the complaint.   The hearing may be a public hearing for which notice shall be given in the time and manner provided.

“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 recommendation or rulings of the advisory board or the appeal board and may make any findings which are not inconsistent with the provisions of this chapter or local ordinance adopted pursuant to this chapter.”  (Emphasis added.)

Subdivision (d) of section 66452.5 clearly governs the situation at hand.   AWCA is “[an] interested person [allegedly] adversely affected by a decision of the ․ appeal board”;  and it filed a “complaint [denominated an appeal] ․ concerning [the] decision of the ․ appeal board.”   In hearing AWCA's appeal, then, the Board was bound by the mandatory time limitations set forth in section 66452.5, subdivision (d).   This case requires that we determine what is meant by the Legislature's requirement that the hearing on an “interested party complaint” be held by the Board within 30 days of the filing of the complaint.   In making this determination, we are principally, and almost exclusively, guided by the axiom that:  “[T]he primary rule of statutory construction, to which every other rule as to interpretation of particular terms must yield, is that the intention of the legislature must be ascertained if possible, and, when once ascertained, will be given effect, even though it may not be consistent with the strict letter of the statute.”   (Marina Village v. California Coastal Zone Conservation Com. (1976) 61 Cal.App.3d 388, 392, 132 Cal.Rptr. 120, quoting from Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 802, 151 P.2d 505, internal quotation marks omitted.)

 Here, the legislative intent seems clear.   When the precise time limitations of section 66452.5, subdivision (d) are read in conjunction with the “deemed approved” language of section 66452.4, the conclusion is inescapable that the Legislature's intent in creating the interplay between these enactments was to provide an appeals system whereby real estate project developers in the State of California could obtain expeditious and final approval or disapproval of their tentative parcel or subdivision maps.¹³  Indeed, one of the leading treatises on California real estate law interprets these provisions to precisely the same effect:  “The time periods provided in the Act apparently were inserted in the Act to require the local authorities to process maps expeditiously and to eliminate unreasonable delays in obtaining the approval (or disapproval) of a map.”  (7 Miller & Starr, California Real Estate (2d ed. 1990), Subdivisions, § 20:92, p. 241, fn. 32.)

 This legislative intent would be defeated if the word “held,” as it is used in section 66452.5, subdivision (d), were to be interpreted to mean that a legislative body had only to commence its hearing within the 30 day period provided for in that section—leaving open the possibility of the hearing being subjected to interminable continuances.   Consequently, we hold that the word “held,” as it is used in section 66452.5, subdivision (d), must be construed to mean “commenced and completed.”   In this context, a “completed” hearing is to be understood, in general terms, as meaning a hearing which has been closed to the further receipt of evidence and/or information and in which the matter in controversy has been submitted for decision.¹⁴

 Given the above, and in light of the fact that the Board failed to “complete” its hearing on AWCA's appeal within 30 days following its July 25, 1989 hearing on the matter, we conclude that Agri–Empire's application for approval of TPM 22279, as last conditionally approved by the Commission on March 15, 1989, was deemed approved by operation of law—that is, by operation of sections 66452.4/66452.5, subdivision (d)—on August 25, 1989, the first day following the expiration of the 30–day period of time immediately following July 25, 1989.¹⁵

We are aware that the opinion in Knoell v. City of Lompoc (1987) 195 Cal.App.3d 378, 240 Cal.Rptr. 464 reached a contrary conclusion with respect to the interpretation to be given section 66452.5, subdivision (d).   However, we find the reasoning in Knoell unpersuasive.   In Knoell, the court stated:

“Appellant assumes that this requires that the hearing be completed within 30 days.   The statute contains no such express requirement.   To the contrary, the provision for holding the hearing within 30 days follows immediately the provision that the matter may be set for hearing.   The words ‘set’ and ‘held’ appear to be used synonymously.

“Any other construction of the statute could lead to unreasonable results.   Suppose the hearing is set and commenced in a timely manner, consistent with the giving of reasonable notice to the interested parties, but that it cannot be completed within 30 days;  or that during the hearing a necessary party becomes ill;  or that, as in this case, the hearing goes on past midnight without conclusion.   In any of such circumstances a reasonable continuance is required as a matter of fairness.”  (195 Cal.App.3d, at pp. 381–382, 240 Cal.Rptr. 464.)

We are unpersuaded by Knoell for two reasons:

(1) First, there is absolutely no reason to suppose that the Legislature used the words “set” and “held” synonymously.   To our way of thinking, it is far more reasonable to suppose that when the Legislature used two different words in virtually immediate proximity to each other it meant two different things.

(2) Second, the concern that the court felt for accommodating the need for “reasonable” continuances has already been otherwise accommodated by the Legislature.   Section 66451.1 provides, in pertinent part:  “(a) The time limits specified in this chapter for reporting and acting on maps may be extended by mutual consent of the subdivider and the advisory agency or legislative body required to report or act.”  (Emphasis added.)   In any case in which there is a specific need for a reasonable continuance, the legislative body (such as the Board in this case) is free to seek the consent of the subdivider to an appropriate continuance (even to a date beyond the time limitations for holding a hearing on an interested party's complaint and/or taking action upon a proposed tentative map)—coupled with an advisory comment to the subdivider that, in the absence of such consent, the body would find it necessary to make certain findings and then act thereon, either by disapproving the tentative map or by approving the tentative map with conditions to which the subdivider might object, so as to comply with the section 66452.5 requirement that a hearing be “held” within 30 days of the filing of an “appeal” or a “complaint.”   It is inconceivable to us that an applicant would not consent to a truly reasonable request for a continuance under such circumstances.¹⁶

Agri–Empire has contended that the Board also violated numerous other time limitations in this instance.   Given the dispositive nature of our conclusion regarding the 30–day limitation of section 66452.5, subdivision (d), we need not reach these other contentions.

 However, there is another “time limitation contention,” one raised for the first time by the Board at oral argument, that does require our attention.¹⁷  Citing Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 282 Cal.Rptr. 564 and Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 275 Cal.Rptr. 113, the Board argues that Agri–Empire's within mandate action was barred by the 90–day statute of limitations set forth in section 66499.37.   The Board misapprehends the applicability of section 66499.37 in this case.

In pertinent part, section 66499.37 states:  “Any action or proceeding to attack, review, set aside, void or annul the decision of an advisory agency, appeal board or legislative body concerning a subdivision, or of any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 days after the date of such decision.”   The Board contends that section 66499.37 obligated Agri–Empire to file the within mandate action no later than 90 days following the date on which TPM 22279 was deemed approved by operation of law, and that the date on which the action was filed (March 8, 1990) was clearly beyond that deadline.   What the Board apparently fails to understand is that Agri–Empire did not initiate the within mandate action to “attack, review, set aside, void or annul” the approval of TPM 22279 which occurred by operation of law.   Agri–Empire was, we are sure, delighted with the “deemed approval” of its map.   Rather, Agri–Empire initiated the within mandate action to challenge the Board's taking any further action with respect to TPM 22279 on January 9, 1990 (in particular, the Board's ordering that a “focused EIR” concerning TPM 22279 be prepared)—and the March 8, 1990 filing date of the within mandate action is clearly within 90 days of January 9, 1990.

Thus, section 66499.37 simply is inapplicable to the situation here in issue—and nothing in Hunt v. County of Shasta, supra, or Presenting Jamul v. Board of Supervisors, supra, compels, or even suggests, a contrary conclusion:

(1) In Hunt, the court was faced with a situation in which a county had, by a 2–to–1 non-majority vote of its Board members, denied the petitioners' application for certificates of compliance under section 66499.35 of the SMA.   The court concluded that, while the non-majority vote was not a final, binding vote of the Board under section 25005, it was a sufficiently final and determinative “action” to trigger the running of the statute of limitations set forth in section 66499.37.   Our case differs significantly from Hunt in that:

(a) In Hunt, there was a final “act,” a denial of an application after which no further action by the Board was contemplated, which was challenged—while in our case there was no final, challengeable “act” respecting TPM 22279 until the Board acted to require a “focused EIR” on January 9, 1990.  (Agri–Empire could have challenged the Board's July 25, 1989 decision to continue the matter, but TPM 22279 was deemed approved by operation of law prior to the running of the 90–day statute of limitations for challenging that continuance, so there was no further need to seek review of that continuance.)

(b) In Hunt, there was no statutory “deemed approval” which applied to the situation.   The court specifically noted this distinction on page 444 of its opinion (in fn. 10).   The court suggested that a “deemed approval” of an application would be an “act” triggering the running of the section 66499.37 statute of limitations—but, as we have pointed out previously in this opinion, Agri–Empire had absolutely no interest in challenging the “deemed approval” of TPM 22279.  (If it is the Board's position that Agri–Empire wad somehow obligated to bring an action to “validate” the “deemed approval” of TPM 22279 within 90 days of the date on which TPM 22279 was so approved, we observe that the Board has cited no authority for that position—nor are we aware of any such authority.)

(2) Presenting Jamul is equally unavailing as support for the Board's position.   In Jamul, the court was faced with a situation in which the petitioners had challenged the decision of a county Board of Supervisors to deny an application for the tolling of the expiration date of a tentative subdivision map pursuant to section 66452.6, subdivision (c).   The challenge was based on the petitioners' argument that their application for a tolling of the expiration date in question had been approved by operation of law.   Again, as was the case in Hunt, Jamul is a case in which there was a final, determinative “act” by the Board, a denial of an application, and a failure by the petitioners to file their action within 90 days of that final, determinative “act.”   We emphasize again:  (a) The lack in this case of any such final, determinative “act” by the Board prior to the Board's January 9, 1990 decision to require a “focused EIR” concerning TPM 22279;  and (b) the fact that Agri–Empire brought the within mandate action well within 90 days of January 9, 1990.

Before leaving the matter entirely, we address briefly the Board's argument that Agri–Empire's mandate action is a thinly disguised CEQA lawsuit which has not been brought into compliance with the statutory requirements which CEQA places on the bringing of such lawsuits.   In making this argument, the Board has done nothing more than create a “strawman” and then proceed to knock it down.   If the Board had determined to require an EIR for TPM 22279 at the July 25, 1989 hearing (or at any continuance thereof within a 30–day period), which it was entitled to do, then any challenge by Agri–Empire to that requirement would have been a challenge to a CEQA determination which would have to have been resolved in accordance with the provisions of CEQA.   That, however, simply was not the case in this matter.   The primary thrust (indeed, the sole operative thrust) of Agri–Empire's mandate action was a challenge to the Board's January 9, 1990 decision to take further action on TPM 22279, which challenge was based on Agri–Empire's position that TPM 22279 already had been finally approved by operation of law under the provisions of the PSA/SMA.   This was (and is) a PSA/SMA lawsuit, not a CEQA lawsuit—and that basic fact is not altered by either:  (a) The happenstance that the further “action” ordered by the Board on January 9, 1990 was the preparation of a “focused EIR” pursuant to CEQA as opposed to some other non-CEQA requirement;  or (b) the mere fact that Agri–Empire's writ petition contained two “abuse of discretion under CEQA” allegations in addition to four “non-CEQA abuse of discretion” allegations.¹⁸

III.–IV.***

DISPOSITION

The judgment entered below denying Agri–Empire's petition for a writ of mandate is reversed.   This matter is remanded to the trial court with directions that the trial court grant Agri–Empire's petition for a writ of administrative mandate to the following effect:  (1) The Board is to be ordered to vacate and set aside its January 9, 1990 directive that the Department Staff prepare a “focused” EIR for TPM 22279;  and (2) The Clerk of the Board is to be ordered to certify the approval of TPM 22279 as last conditionally approved by the Commission on March 15, 1989.

The temporary stay order issued by this court in Case No. E008852 is hereby made permanent.

The Board's request that we order Agri–Empire to pay monetary sanctions for having prosecuted a frivolous appeal is denied.

FOOTNOTES

1.   Our opinion in this matter requires reference to a variety of governmental entities, bodies, officers and officials.   In the interest of simplicity, the following “shorthand” references will be used throughout the opinion:  (1) “The County” refers to the County of Riverside;  (2) “the Board” refers to the Board of Supervisors of the County;  (3) “the Department” refers to the Planning Department of the County;  (4) “the Director” refers to the Director of the Department;  and (5) “the Commission” refers to the Planning Commission of the County.

2.   Unless otherwise indicated, all statutory section number citations refer to the Government Code.   All citations to statutory provisions contained in CEQA will be made by reference to a section number preceded by “CEQA.”

3.   EIRs are prepared pursuant to the requirements of CEQA and the various state and local guidelines, rules and regulations which have been adopted to implement CEQA.  (See, generally, CEQA § 21061.)

4.   Agri–Empire's petition also named the Clerk of the Board as a party respondent.   Our reference to the Board in this context is inclusive of the Clerk of the Board, as well.

5.   TPM 22279 is contained in the Administrative Record, which record we ordered transferred to us from the trial court pursuant to rule 10(d), California Rules of Court.

6.   References to particular sections of Ordinance No. 460 will be made by reference to a section number preceded by “Ord.”

7.   Certain of the documents in the Administrative Record refer to this environmental assessment as EA 32312 and it cannot be clearly ascertained from the record on appeal which number is the correct one.   We have chosen to use the number which is used in the Director's approval of a negative declaration for TPM 22279.

8.   CEQA section 21064 provides:  “ ‘Negative declaration’ means a written statement briefly describing the reasons that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental impact report.”

9.   The Board adopted these rules in 1982 by way of Resolution No. 82–213.   They will be cited hereinafter as “County Rule No. _.”

10.   Agri–Empire asserts in its Opening Brief that this appeal was filed on June 6, 1989.   Our review of the record reveals that the appeal was signed on that date, but that it was not actually filed until two days later.

11.   The Board has argued that the issues presented for our resolution in this matter are to be resolved by a review of the trial court's decision under the “substantiality of the evidence in the light of the whole record” standard.   We disagree.   The facts of the matter (and the evidence thereof) are largely, if not completely, undisputed.   Rather, we are called upon here to interpret the meaning of, and determine the proper application of, various statutes in a given context.   This is solely a matter of law upon which we exercise our independent judgment.   (Estate of Madison (1945) 26 Cal.2d 453, 456, 159 P.2d 630;  9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 242, p. 247.)

12.   We will not be referring, however, to facts contained in certain documents dehors the appellate record which Agri–Empire has sought to bring to our attention.   By way of a “Motion For Production Of Additional Evidence On Appeal,” Agri–Empire has asked (in essence) that we take judicial notice of a negative declaration and notice of determination adopted/issued by the State of California's Department of Water Resources, Division of Safety of Dams, regarding the water rights/dam safety issues which were the focus of the “Condition No. 14” originally imposed by the Director on the approval of TPM 22279.   We decline to take such judicial notice because the documents in question, assuming they are judicially noticeable, are not relevant to the issues we have found to be dispositive in this case.

13.   While it is true that section 66452.4 refers to “action ․ taken upon a tentative map” and the Board's lack of timely action in this case may be precisely characterized as “an absence of timely action taken upon an interested party complaint,” the distinction in the context of this case is largely meaningless.   Section 66452.5, subdivision (c) provides in part:  “If the legislative body fails to act upon an appeal within the time limit specified in this chapter, the tentative map, insofar as it complies with applicable requirements of this division and local ordinance, shall be deemed to be approved or conditionally approved as last approved or conditionally approved, and it shall be the duty of the clerk of the legislative body to certify or state that approval.”   For all practical purposes, an “appeal” under section 66452.5, subdivision (c) is the equivalent of a “complaint” under section 66452.5, subdivision (d)—the only difference being that the former is available to those who have a direct, participatory interest in the map approval in question (such as the subdivider) and seek their administrative review remedies pursuant to section 66452.5, subdivisions (a) and (b), while the latter is available to third or “outside” parties who have a demonstrable interest in the matter (such as, arguably, an owner of land adjoining the proposed project) and seek their administrative review remedies pursuant to section 66452.5, subdivision (d).   If these provisions are to have a consistent and cohesive meaning, and there is no logic in an interpretation which would produce any other sort of a meaning, then the “deemed approved” language of section 66452.4 must apply to section 66452.5, subdivision (d) “complaints” to the same effect that the “deemed approved” language of section 66452.5, subdivision (c) applies to “appeals” brought pursuant to that section.

14.   Once such a hearing has been “completed,” of course, the legislative body has an additional seven days within which to render its decision (or, in the words of the statute, to “declare its findings”).  (§ 66452.5, subd. (d).)

15.   In the interest of clarity and ease of understanding, we make the following observations concerning our “timing calculations”:We have calculated the 30–day time period which is made applicable in this case by section 66452.5, subdivision (d) from the July 25, 1989 hearing date rather than from June 8, 1989 (the date on which AWCA actually filed its “complaint” and the date from which the section 66452.5, subdivision (d) 30–day time limitation ordinarily would be measured) because the record does not clearly reveal that Agri–Empire objected to the hearing not beginning until July 25, 1989—while the record does clearly reveal that Agri–Empire objected to proceedings being conducted after that date.   Giving the Board every benefit of the doubt with regard to an arguable “implied consent to a continuance” by Agri–Empire, we calculated the 30–day time limitation of section 66452.5, subdivision (d) as though the July 25, 1989 hearing date was the date on which AWCA filed its “complaint.”

16.   Although we need not decide the issue in this case, it seems to us to be arguable, if a request by an administrative review body for consent to a continuance were “truly unreasonable,” constituting nothing more than a blatant attempt to unjustifiably coerce a developer into acquiescing in and to a continuance, that a developer could challenge that coercive act by seeking judicial review of the reviewing body's conduct through proceedings seeking injunctive or extraordinary relief remedies.

17.   Ordinarily, we do not consider issues of procedural defect on appeal if they have not first been raised in the court below (Menefee v. County of Fresno (1985) 163 Cal.App.3d 1175, 1182, 210 Cal.Rptr. 99), and this is especially true if the issues have not even been set forth in an appellate brief for our review (Schubert v. Lowe (1924) 193 Cal. 291, 294, 223 P. 550)—but here, because the issue is a question of law that is of general interest and there are no pertinent facts which are in dispute, we have chosen to exercise our discretion and consider the issue which has been raised by the Board (Menefee v. County of Fresno, op. cit.).   Agri–Empire was given an opportunity to file supplemental briefing on this issue, and did so.

18.   With regard to these two “abuse of discretion under CEQA” allegations, we observe that insofar as the court proceedings below were concerned (and, indeed, insofar as the proceedings before this court are concerned) the allegations have been treated by Agri–Empire as mere surplusage.   This action has been tried from the outset as a PSA/SMA action, not a CEQA action.Finally, on the same general subject, we note:(1) The demonstrably “non-CEQA” nature of the within action simply renders inapposite the Board's continued insistence that the action cannot be maintained because of an asserted failure on Agri–Empire's part to comply with the statutory requirements of CEQA sections 21167, subdivisions (c) and (e), 21167.7 and 21168.9.   Further, given the fact that TPM 22279's approval by operation of law encompasses the negative declaration adopted by the Commission in light of EA 33614 and subsequently received and filed by the Board on May 30, 1989, the Board's continued insistence that the within action cannot be maintained because of a failure by Agri–Empire to comply with requirements of Code of Civil Procedure section 389.6 is equally inapposite.(2) The Board's contention that our opinion conflicts with Land Waste Management v. Contra Costa County Bd. of Supervisors (1990) 222 Cal.App.3d 950, at pages 961–962, 271 Cal.Rptr. 909, is mistaken.   In that case, our sister court held that the “deemed approved” provisions of the PSA do not act to “certify” (i.e., to approve) a lawfully required EIR which has been submitted for certification.   We have no argument with that basic holding—but it has no application in this case.   In this case:  (a) The operative CEQA approval, the adoption of a negative declaration, was made by the Commission, not by operation of law under either the PSA or the SMA;   and (b) the Board's requirement that an EIR be prepared came after TPM 22279 had been approved by operation of law, rendering the requirement of an EIR invalid and of no effect.

FOOTNOTE.   See footnote *, ante.

TIMLIN, Associate Justice.

RAMIREZ, P.J., and McKINSTER, J., concur.