Benton v. Board of Supervisors

• Citation: 226 Cal.App.3d 1467,277 Cal.Rptr. 481
• Decision Date: 22 January 1991
• Docket Number: No. A046292,A046292
• Court: California Court of Appeals
• Parties: Fletcher BENTON, et al., Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF NAPA COUNTY, et al., Defendants and Respondents; WHITBREAD OF CALIFORNIA, INC., Real Party in Interest and Respondent.

Page 481

277 Cal.Rptr. 481

226 Cal.App.3d 1467

Fletcher BENTON, et al., Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF NAPA COUNTY, et al., Defendants and Respondents WHITBREAD OF CALIFORNIA, INC., Real Party in Interest and Respondent.

No. A046292.

Court of Appeal, First District, Division 4, California.

Jan. 22, 1991.

Victor A. Fershko, Fershko & Lewis, Napa, for plaintiffs and appellants.

Robert Westmeyer, County Counsel, Napa, for defendants and respondents.

John G. Sprankling, Kathy Green Miller, Miller, Starr & Regalia, Oakland, for real party in interest.

REARDON, Associate Justice.

Real party in interest Whitbread of California, Inc., sought Napa County approval for a winery on its property. Respondents Napa County and its Board of Supervisors adopted a mitigated negative declaration ¹ pursuant to the California Environmental Quality Act (CEQA). Appellants Fletcher and Roberta Benton and others sought a writ of administrative mandate to compel the county and the board to require preparation of an environmental impact report (EIR). ² The trial court denied the petition. The Bentons appeal, contending that CEQA requires an EIR on this project. We affirm the judgment.

I. FACTS

In May 1986, respondent Napa County issued a use permit to real party in interest Whitbread of California, Inc., allowing it to construct a 450,000-gallon per year winery on an 856-acre parcel. ³ The county issued a mitigated negative declaration in connection with the project. This negative declaration was never subjected to legal attack.

By February 1987, Whitbread had acquired an adjoining 120-acre parcel and applied for another use permit, seeking to relocate the winery on the enlarged site. The new plan relocated and reduced the size of winery buildings, added underground storage caves and altered access routes. Under the new proposal, the winery buildings were to be built one mile west of the original site and one-half mile from Soda Canyon Road--closer to existing residences than under the original plan. County planners proposed another mitigated negative declaration for the project. By the summer of 1987, building permits had issued and Whitbread had begun construction at the original winery site. ⁴ County counsel advised the planning commission to base its CEQA decision on a comparison between what Whitbread could construct under its existing permit and what it requested in the new application. The commission conducted a public hearing, approved grading and use permits and adopted a mitigated negative declaration. One condition of the new permit was that the original permit would become null and void once construction began at the relocated winery site.

Appellants Fletcher and Roberta Benton and Joseph and Mary Schreuder have residences on Soda Canyon Road near the Whitbread property. They appealed the planning commission's decision to respondent Napa County Board of Supervisors. On the advice of counsel, the board evaluated the environmental impact of the project based on the difference between the original winery and the relocated one. In September 1987, after another public hearing, the board approved the new use permit, denied the appeal and adopted a mitigated negative declaration. Again, one condition of the new permit was that the original permit was null and void once Whitbread exercised its rights under the new permit. ⁵

In October 1987, the Bentons and the Schreuders ⁶ filed a timely petition for a writ of administrative mandate in the trial court. They sought to compel the county and the board to set aside the new use permit and to require preparation of an EIR. ⁷ (See Code Civ.Proc., § 1094.5.) The petition was denied and this appeal followed.

II. DISCUSSION

The Bentons contend that CEQA requires that an EIR be prepared on this project. They argue that the county erred by considering only the environmental impacts of the relocation of the winery. They contend that CEQA requires that the county and the board determine the environmental impacts of the second winery proposal as if the original plan had not already been approved.

A. Exhaustion of Administrative Remedies

As a preliminary matter, Whitbread contends that we need not reach the merits of the appeal. It argues that the Bentons failed to exhaust their administrative remedies because they did not petition the board for reconsideration of its decision denying their appeal of the planning commission's action. The trial court rejected this argument, finding that, given the full evidentiary hearings and arguments presented to the commission and the board, a request for reconsideration before the board would not have resulted in a different decision.

We also reject this contention, for two reasons. First, in 1987, county ordinances and Napa County CEQA guidelines did not authorize the board to reconsider a CEQA decision. At that time, aggrieved persons could move for reconsideration of the board's decision on appeal in permit matters. (Former Napa County Code, tit. XIII, §§ 13500(a), 13512.) However, such motions for reconsideration could not be made to challenge the board's CEQA actions. (Id., § 13500(c).) The county's CEQA guidelines provided that the board's CEQA decisions were final and that no requests for reconsideration would be granted. (Napa County CEQA guidelines, § 1207, subd. (a).)

Second, even if we assume arguendo that the board had the authority to reconsider its adoption of the mitigated negative declaration, we are satisfied that the Bentons exhausted their administrative remedies. At one time, the California Supreme Court required an aggrieved person to apply to the administrative body for a rehearing after a final decision had been issued in order to exhaust administrative remedies. (Alexander v. State Personnel Bd. (1943) 22 Cal.2d 198, 199-201, 137 P.2d 433; see 3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 234, p. 266.) This holding--criticized by at least one legal scholar as "extreme"--has been repealed by statute. (Gov.Code, § 11523 [Administrative Procedure Act cases]; see 3 Witkin, Cal.Procedure, supra, § 234, p. 266.) Therefore, we are not bound by it. The Bentons complied with the exhaustion requirement when they filed a timely appeal of the commission's decision to the board and argued their position before that body. (See Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 418, 194 Cal.Rptr. 357, 668 P.2d 664 [failure to exhaust administrative remedies when plaintiffs received notice of administrative hearings, were advised of appeal requirements and failed to file timely appeal]; see also § 21177, subd. (b) [action may not be maintained unless one objected to approval of project orally or in writing].) ⁸

B. Scope of Project

Much of this dispute centers on the proper scope of the project before the board--whether it was a new winery or a modified version of the winery that had already been approved. The trial court held that the board treated the application for the second use permit as a new application rather than a modification of the original permit, because the board required Whitbread to obtain a new use permit. However, having read the administrative record ourselves, we have come to a different conclusion.

The board did approve a new permit rather than a formal modification of Whitbread's original permit. However, to consider this fact alone as determinative of the scope of the project for purposes of CEQA review would constitute a triumph of form over substance. A few days before the trial court issued its explanation of its ruling in our case, another appellate court faced a similar question. In that case, a final EIR had been certified and a use permit had been issued on a project. Six years later, after the use permit had expired, the real party in interest filed for a new use permit. The new application called for a revised version of the previously approved project. The revised plan requested an increase in the number and height of buildings and the relocation of certain buildings from one part of the site to another, among other changes. The county planning commission approved the new use permit without requiring a subsequent or supplemental EIR (see § 21166), relying on the earlier EIR and an addendum to it prepared for the new use permit application. The county board of supervisors denied an appeal of the planning commission's decision and the trial court denied a petition for writ of mandate. The appellate court ruled that the county, by its actions, had treated the new use permit as a modification of the earlier project, rather than a new project for purposes of CEQA. (See Fund for Environmental Defense v. County of Orange (1988) 204 Cal.App.3d 1538, 1542-1548, 252 Cal.Rptr. 79.) If this analysis is correct for a case in which the original use permit was never exercised and had actually expired, then--a fortiori--it should apply to a case such as ours in which the initial permit had been exercised and rights under the permit had vested.

Applying this analysis to the Whitbread proceedings, the administrative record demonstrates that the commission and board consistently treated the new application as if it were a request for modification of the already-permitted project. Apparently, the staff treated the application as one for a new permit. However, county staffers explained to the planning commission at its hearing that Whitbread had already acquired vested rights to build under its initial use permit. County counsel advised the commission to review the project before them in a limited way, by comparing what had already been approved with what was being proposed. The commission appears to have followed these instructions. It identified the use permit as one for relocation of the original winery.

At the board of supervisors' hearing on the Bentons' appeal, county counsel explained that denial of the second use permit would only prohibit Whitbread from...