City of Carmel-By-The-Sea v. Board of Supervisors

• Decision Date: 10 July 1986
• Docket Number: CARMEL-BY-THE-SE,P
• Citation: 183 Cal.App.3d 229,227 Cal.Rptr. 899
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OFlaintiff and Respondent, v. BOARD OF SUPERVISORS OF the COUNTY OF MONTEREY; County of Monterey, Defendants and Respondents, MISSION RANCH CORPORATION, Real Party in Interest-Appellant. CITY OFlaintiff and Appellant, v. BOARD OF SUPERVISORS OF the COUNTY OF MONTEREY; County of Monterey, Defendants and Respondents. H000282, H001125.

Page 899

227 Cal.Rptr. 899

183 Cal.App.3d 229

CITY OF CARMEL-BY-THE-SEA, Plaintiff and Respondent, v. BOARD OF SUPERVISORS OF the COUNTY OF MONTEREY; County of Monterey, Defendants and Respondents, MISSION RANCH CORPORATION, Real Party in Interest-Appellant.

CITY OF CARMEL-BY-THE-SEA, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF the COUNTY OF MONTEREY; County of Monterey, Defendants and Respondents.

H000282, H001125.

Court of Appeal, Sixth District, California.

July 10, 1986.

Rehearing Denied Sept. 10, 1986.

Review Denied Sept. 24, 1986.

Donald G. Freeman, City Atty., Carmel-by-the-Sea, Cal., Michael W. Stamp, Pacific Grove, Cal., for plaintiff, appellant and respondent

Brian Finegan, Michael D. Cling, Salinas, Cal., for real party in interest-appellant.

Ralph R. Kuchler, County Counsel, Jose Rafael Ramos, Senior Deputy County Counsel, Salinas, Cal., for defendants and respondents.

BRAUER, Associate Justice.

On June 19, 1984, the County of Monterey ("County") Board of Supervisors adopted an ordinance rezoning property owned by Mission Ranch Corporation ("Mission Ranch"). The City of Carmel ("City") petitioned the Superior Court for a writ of mandamus to compel County to set aside its rezoning decision, and on December 12, 1984, the court entered its judgment ordering that the peremptory writ issue. Real party in interest Mission Ranch filed this appeal, claiming that the trial court committed several procedural errors warranting reversal, and that County's rezoning decision was lawful under the California Environmental Quality Act (Pub. Resources Code, § 21000, et seq., hereafter referred to as "CEQA"). County has not appealed. City filed a separate appeal from a post-judgment order denying attorney's fees. We have consolidated these two appeals for purposes of this opinion. For reasons discussed below we affirm

both the trial court's judgment and its post-judgment order.

BACKGROUND

The Mission Ranch property consists of 20.69 acres near the mouth of the Carmel River. It extends from high ground abutting the City of Carmel southward to the river. A state beach forms a sand bar which closes the mouth of the river. Behind this sand bar the rising and ebbing ocean tides and the inflow of river water combine to create a marshy area known as the wetlands. The present use of the property is as a resort hotel. Improvements include thirteen cottages, a seven-room motel, a six-room inn, a restaurant, tennis courts and a converted barn used occasionally for musical events. For some time the entire property has been zoned R-1, a zoning which is inconsistent with the existing use.

In April of 1983 the Carmel area land use plan ("LUP" or "the plan") went into effect. The plan specifically identifies the Mission Ranch property for special treatment. It provides a means for Mission Ranch to apply for a use permit to continue the existing use and also allows for future residential development if and when the existing use is abandoned. Any development, however, "shall be subject to the preservation of the wetlands." The plan limits future development to "clustered medium-density (2-6 units per net developable acre not including wetland area, but not to exceed a maximum of 75 units) ... provided that such development conforms to the policies of the plan, particularly the resource protection policies for the protection of coastal wetlands."

The plan also sets forth some general policies emphasizing the importance of preserving environmentally sensitive areas such as the wetlands. Wetlands are defined as "lands which may be covered periodically or permanently with shallow water and include saltwater marshes, fresh water marshes, open or closed brackish water marshes, swamps, mudflats and fens."

The uses indicated in the LUP for the Mission Ranch property imply two separate zoning designations: one for the wetlands area, which would insulate it from any future development, and one for the balance of the property.

On September 19, 1983, Mission Ranch applied to County for a rezoning of the property from R-1 to "O" (open space) and "R-3-S." The R-3 designation would allow the owners to apply for a use permit either for continued use as a resort or for the clustered residential use. The "S" designation would fix the allowable density of future development somewhere between two and six units per acre as provided in the plan.

Mission Ranch stated in its application that its purpose in applying for rezoning was "to allow a use permit application for the existing resort hotel operation." The application further stated: "No new development is proposed as part of this rezoning or use permit application."

In order to accomplish the rezoning it would be necessary to identify that portion of the property which was to be considered wetlands and receive the "O" classification. Accordingly, Mission Ranch submitted with its rezoning application the results of a field study conducted by Dr. Linda Fox which included a map indicating a boundary line for the wetlands. Dr. Fox calculated the wetlands to be 4.68 acres.

Upon receipt of the application the County Planning Department conducted an initial study of possible environmental impact and recommended, "based on the applicant's intent to keep the existing resort hotel use," that a negative declaration, rather than an environmental impact report (an "EIR"), be prepared. ¹ This recommendation was adopted by the planning commission There followed a series of public hearings on the matter. Controversy crystallized around a single issue: where should the wetlands boundary line be drawn? This line would determine not only the extent of zoning protection of the wetlands area but also the size of the remaining developable portion of the property and thus the eventual density of any future development. Opponents of the rezoning produced experts who argued that the wetlands area should include the riparian corridor and certain other wetlands transition areas. Proponents argued that these areas are well protected in the LUP by means of building setbacks. These setbacks disallow any development within a certain distance from an environmentally sensitive area (200 feet from a riverbank and 100 feet from wetlands). The key point is that the setback areas would still be part of the R-3-S parcel and would be included in computing allowable units per acre. On the other hand if the riparian corridor and wetlands transition areas were included in the wetlands open space zone, the net developable acreage in the R-3-S parcel, and consequently the potential density, would be reduced.

at an environmental hearing on October 12, 1983.

The planning commission heard testimony from an array of experts, representatives of environmental groups, concerned citizens and officials of the City of Carmel. The matter was continued several times in order to allow for further information gathering. Eventually the commissioners adopted Dr. Fox's wetlands boundary delineating 4.68 acres, to which was added the flowing river channel consisting of 1.46 acres. This 6.14 acres was to be zoned O-D (the "D" standing for "design control"). The commissioners then determined, upon staff recommendation, that the remaining 14.55 acres be zoned to accommodate 4.5 units per acre to a maximum of 65 units. This scheme was adopted by the County Board of Supervisors on June 19, 1984.

ISSUES

City's main challenge to the rezoning decision is that an EIR should have been prepared rather than a negative declaration. City argued that the rezoning was a "project," as defined in CEQA, which had the potential to produce significant adverse environmental impact; therefore an EIR was absolutely required. County and Mission Ranch took the position at trial that no EIR was required at the rezoning phase since no expanded use of the property was proposed. The rezoning was simply a means to bring the property into conformance with the LUP. By itself it would not produce the significant environmental impact sufficient to trigger preparation of an EIR.

It is further urged that an EIR which was prepared after the rezoning decision, in connection with an application by Mission Ranch to develop the property, suffices to quell any environmental concerns aroused by the rezoning. In other words, Mission Ranch contends that the local agency has the discretion to determine at which stage of a project an EIR should be prepared. Additionally, Mission Ranch claims that the LUP amounts to a certified equivalent of an EIR for purposes of the rezoning.

Finally, there is disagreement as to whether or not County followed the definition of wetlands as set forth in the LUP, when making its decision regarding the ultimate size of the wetlands area. We consider the matter of the wetlands definition to be part of the principal issue and take it up in that discussion.

City separately appeals from the post-judgment order denying attorney's fees, claiming that its successful prosecution of In summary then, the issues, as we see them, are:

litigation in the lower court entitles it to attorney's fees under the private attorney general doctrine. The dispositive issue is whether City is precluded from collecting attorney's fees under Code of Civil Procedure section 1021.5 since it is a public entity.

1) Was the rezoning a project and, if so, was an EIR required;

2) Does an EIR prepared in connection with a subsequent phase of the project suffice to comply with CEQA;

3) Is the LUP a certified equivalent of an EIR; and

4) Is City, as a public entity, entitled to attorney's fees under the private attorney general doctrine.

Before we delve into these issues we must dispense with several procedural matters, namely:

1) Was the administrative record properly admitted into evidence;

2) Was a statement of decision necessary; and

3) What is the applicable standard of review.

PROCEDURAL MATTERS

Sufficiency of the Record

This first claim need not detain us l...