California Aviation Council v. County of Amador

• Citation: 246 Cal.Rptr. 110,200 Cal.App.3d 337
• Decision Date: 15 April 1988
• Docket Number: No. C002522,C002522
• Court: California Court of Appeals
• Parties: CALIFORNIA AVIATION COUNCIL, et al., Plaintiffs and Appellants, v. COUNTY OF AMADOR, et al., Defendants and Respondents; FHA PROPERTIES, INC., et al., Real Parties in Interest and Respondents.

Page 110

246 Cal.Rptr. 110

200 Cal.App.3d 337

CALIFORNIA AVIATION COUNCIL, et al., Plaintiffs and Appellants, v. COUNTY OF AMADOR, et al., Defendants and Respondents;

FHA PROPERTIES, INC., et al., Real Parties in Interest and Respondents.

No. C002522.

Court of Appeal, Third District, California.

April 15, 1988.

Jay C. White, Redwood City, for plaintiffs and appellants

John F. Hahn, County Counsel, for defendants and respondents.

Rishwain, Hakeem & Ellis, Michael D. Hakeem, and Ron Stein, Stockton, for real parties in interest and respondents.

MARLER, Associate Justice.

Plaintiffs California Aviation Council and Carl Borgh appeal from a judgment denying them a writ of mandate to set aside a negative declaration under the California Environmental Quality Act (CEQA). ¹ Plaintiffs contend that the trial court erred in denying their petition on the ground they failed to exhaust their administrative remedies. We do not agree, and affirm the judgment.

FACTS

The County of Amador (County) owns and operates Westover Field, a public general aviation airport located in an unincorporated area of the county known as Martell. Real party in interest, FHA Properties, Inc. (FHA), applied for rezoning and subdivision for residential and commercial development of a 237-acre parcel (Hilltop Center) in Martell approximately 5000 feet from Westover Field.

A public hearing was held on the project on January 28, 1986, before the Amador County Planning Commission. The commission voted " 'to deny without prejudice' " the necessary approvals due to "insufficient information to base a decision upon."

FHA appealed the commission's denial of project approval to the Board of Supervisors of Amador County (Board). On April 15, 1986, the Hilltop Center proposal came before Board for the purposes of determining whether or not to require an environmental impact report under CEQA for the project, rezoning to allow the development, and approval of a tentative subdivision map. Board adopted a negative declaration under CEQA ² and approved the project.

This action challenging Board's decision was commenced on May 16, 1986. Plaintiffs are the California Aviation Council (CAC), a nonprofit public benefit corporation organized under the laws of California, the main purpose of which is the preservation and enhancement of California's public airport system and Carl Borgh, a resident of Amador County who owns and operates an aircraft based at Westover Field. Among other things, plaintiffs sought a temporary restraining order and preliminary and permanent injunctions restraining Board and real parties in interest from undertaking any construction or development, issuing any approvals or permits, or taking any other action to implement the Hilltop Center project pending full compliance with CEQA.

Both County and FHA answered plaintiffs' petition. The matter was then tried before the court. Upon consideration of the evidence, the trial court concluded the administrative record does not support the adoption of the negative declaration. However, the trial court also concluded plaintiffs had failed to satisfy the requirements of Public Resources Code section 21177, which requires a person to exhaust his administrative remedies before commencing an action under CEQA. Consequently, judgment was entered in favor of County. This appeal follows.

DISCUSSION

Plaintiffs contend the trial court erred in denying their petition on the ground they failed to exhaust their administrative remedies. Plaintiffs concede they did not appear before Board or otherwise participate in the administrative proceedings. Nevertheless, they contend they come within an exception to the exhaustion doctrine. The case thus centers on the doctrine which requires a party to exhaust his administrative remedies before the court will act to grant him relief and the exceptions to the exhaustion doctrine.

The requirement of exhaustion of administrative remedy is founded on the theory that the administrative tribunal is created by law to adjudicate the issue sought to be presented to the court, and the issue is within its special jurisdiction. If a court allows a suit to go forward prior to a final administrative determination, it will be interfering with the subject matter of another tribunal. (See 3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 234, pp. 264-265.) Consequently, the requirement of exhaustion is a jurisdictional prerequisite, not a matter of judicial discretion. (Environmental Law Fund, Inc. v. Town of Corte Madera (1975) 49 Cal.App.3d 105, 111, 122 Cal.Rptr. 282.) ³

The exhaustion doctrine bars the pursuit of a judicial remedy by a person to whom administrative action was available for the purpose of enforcing the right he seeks to assert in court, but who has failed to commence such action and is attempting to obtain judicial redress where no administrative proceeding has occurred at all; it also operates as a defense to litigation commenced by persons who have been aggrieved by action taken in an administrative proceeding which has in fact occurred but who have failed to "exhaust" the remedy available to them in the course of the proceeding itself. (See Environmental Law Fund, Inc. v. Town of Corte Madera, supra, 49 Cal.App.3d at p. 112, 122 Cal.Rptr. 282.)

Prior to 1984 the courts had recognized certain exceptions to the exhaustion of administrative remedies doctrine in cases brought pursuant to CEQA.

In Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 267, 104 Cal.Rptr. 761, 502 P.2d 1049 the Supreme Court held the doctrine could not be employed to bar suit by a class ⁴ not organized at the time of the administrative appeal where individuals represented by the class had presented their views to the administrative agency.

In Environmental Law Fund, Inc. v. Town of Corte Madera, supra, 49 Cal.App.3d 105, 122 Cal.Rptr. 282, the plaintiffs had challenged the defendant's conditional use permit and tentative subdivision map on the ground the defendant had failed to prepare an environmental impact report. Although numerous named persons had appeared at the hearings and protested the proposed permit, the plaintiffs were not among them. Notice of the hearings in that case appears to have been given only to adjacent property holders. ( Id., at p. 113, fn. 3, 122 Cal.Rptr. 282.) There was no evidence that notice of the hearings was given the plaintiffs in any form. (Ibid.) The court concluded the plaintiffs were acting in the public interest and were asserting more than privately held grievances. "Application of the exhaustion doctrine against them, by reason of their 'default' in the administrative proceeding to which they were not 'parties' at all," the court reasoned, "would mean in effect the imputation of their 'default' to the public in the absence of any factual basis for such imputation. In general, the doctrine would thus operate to bar the public from redressing a public wrong; specifically, it would burden the public of the Town, in perpetuity, with the illegal zoning of a substantial area of the community by insulating the zoning action from judicial review." ( Id., at p. 114, 122 Cal.Rptr. 282.)

The Corte Madera case was in turn considered by the Supreme Court in Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 194 Cal.Rptr. 357, 668 P.2d 664. There the plaintiffs contended, in reliance on Corte Madera, that they should be excused from the requirements of the exhaustion doctrine because they were public interest organizations seeking to further public, rather than private, rights. (Id., at pp. 417-418, 194 Cal.Rptr. 357, 668 P.2d 664.) The defendants suggested the Corte Madera decision was inconsistent with established exhaustion of remedies authorities and should not be followed. The Supreme Court found it unnecessary to pass on the validity of the Corte Madera holding. (Id., at p. 418, 194 Cal.Rptr. 357, 668 P.2d 664.) The court noted that in Corte Madera the public interest litigants had not participated in or received any notice of the relevant administrative proceedings and contrasted that situation with the case at bench. The plaintiffs in Sea & Sage did have notice of the administrative proceedings and actively participated at every stage of the hearing process. Under these circumstances, the court held, plaintiffs' failure to exhaust their administrative remedies could not be excused. (Ibid.)

In 1984 the Legislature codified the exhaustion of administrative remedies doctrine in CEQA cases in Public Resources Code section 21177. (Stats.1984, ch. 1514, § 14.) That section provides in relevant part: "[p] (a) No action may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person. [p] (b) No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing. [p] (c) This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivision (b). [p] (d) ⁵ ... [p] (e) This section does not apply when there was no public hearing or other opportunity for members of the public to raise objections prior to the approval of the project or when the public agency failed to give the notice required by law." Were we confronted only with the clear and unambiguous language of the statute itself we would necessarily conclude a CEQA action may not be maintained by a person who did not personally object to the approval of the project by presenting the alleged grounds for noncompliance with CEQA to the public agency orally or in writing, unless the person comes within an exception set forth in either subdivision (c) or (e).

However, here the task of construing section 21177 is complicated by the inclusion of a declaration of ...