City of Redding v. Shasta County Local Agency Formation Com.

• Citation: 257 Cal.Rptr. 793,209 Cal.App.3d 1169
• Decision Date: 24 April 1989
• Docket Number: No. C002404,C002404
• Court: California Court of Appeals
• Parties: CITY OF REDDING, Plaintiff and Appellant, v. SHASTA COUNTY LOCAL AGENCY FORMATION COMMISSION, Defendant and Respondent.

Page 793

257 Cal.Rptr. 793

209 Cal.App.3d 1169

CITY OF REDDING, Plaintiff and Appellant, v. SHASTA COUNTY LOCAL AGENCY FORMATION COMMISSION, Defendant and Respondent.

No. C002404.

Court of Appeal, Third District, California.

April 24, 1989.

Certified for Partial Publication ^*

Review Denied July 19, 1989.

Walter P. McNeill, Asst. City Atty., for plaintiff and appellant

David R. Frank, County Counsel, for defendant and respondent.

SIMS, Acting Presiding Justice.

City of Redding (Redding), plaintiff below, appeals from a judgment of the Shasta County Superior Court dismissing Redding's petition for writ of mandate and injunctive relief following the sustaining without leave to amend of the demurrer of defendant Shasta County Local Agency Formation Commission (LAFCO). The sole issue on appeal is whether LAFCO had a duty to prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA; Pub.Res.Code, § 21000, et seq.) before approving an annexation proposal submitted to LAFCO by the City of Anderson (Anderson). (All further undesignated statutory references are to the Public Resources Code.) We shall conclude LAFCO had no duty to prepare an EIR. We shall therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Redding is located on the north side of the Sacramento River and Anderson is on the south side.

The two cities are litigious neighbors. Over the past several years, the cities have frequently disagreed about land use planning matters, and they have pursued numerous lawsuits in the Shasta County Superior Court and in this court. This appeal involves an attempt by Anderson to annex a parcel of property lying on the north side of the river.

In an unpublished portion of this opinion, we recount the procedural history of various lawsuits in order to demonstrate why Redding's appeal is not moot. Here, we describe the procedural history of events material to the issues discussed in the published portion of this opinion. This history, which is uncontested by the parties, is taken from Redding's petition and from another lawsuit of which the trial court took judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

As pertinent here, in February 1986 Anderson commenced proceedings to annex the subject property. In the course of these proceedings, the Anderson Planning Commission developed and the Anderson City Council approved the annexation plan, the prezoning of the area to be annexed, and the establishment of General Plan designations for the area. On February 18, 1986, the City Council also approved a "Negative Declaration" concerning the environmental effects of the proposed annexation. ¹

Anderson submitted the annexation proposal and negative declaration to LAFCO pursuant to Government Code section 56375, subdivision (d). ²

Before LAFCO acted on the annexation proposal, Redding sued Anderson (Shasta County No. 87481). As pertinent here, that lawsuit attacked Anderson's negative declaration and sought a writ of mandate to vacate Anderson's approval of the annexation and a preliminary injunction to bar Anderson from approving the annexation in the future without first doing an EIR.

While Case No. 87481 was pending, LAFCO approved the annexation and ratified Anderson's negative declaration on July 17, 1986.

On August 11, 1986, Redding filed this action against LAFCO (Shasta County No. 88666), seeking a writ of mandate to vacate LAFCO's approval of the annexation and its ratification of Anderson's negative declaration, and to order LAFCO to prepare an EIR for the project.

The trial court ultimately sustained LAFCO's demurrer without leave to amend and dismissed the petition.

DISCUSSION

I

The Appeal Is Not Moot ^**

II LAFCO Had No Duty To Prepare An EIR

The parties do not dispute that LAFCO's approval of Anderson's annexation is a "project" requiring CEQA review. ( § 21065, subds. (a), (c); Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 279, 118 Cal.Rptr. 249, 529 P.2d 1017.) The parties contest the respective duties of Anderson and LAFCO under CEQA.

Redding argues LAFCO should have prepared an EIR based on two inconsistent theories: (1) LAFCO was always the "lead agency" on the project, not the "responsible agency," and therefore had a mandatory duty to prepare an EIR; and (2) even though LAFCO was initially the "responsible agency," it had a duty to prepare an EIR when Anderson submitted a defective negative declaration to it. We address these contentions serially.

A. LAFCO Was Not The Lead Agency On The Annexation Project.

The terms "lead agency" and "responsible agency" are terms of art under CEQA.

Section 21067 provides: " 'Lead agency' means the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment."

Section 21069 provides: " 'Responsible agency' means a public agency, other than the lead agency, which has responsibility for carrying out or approving a project."

Under section 21165, a lead agency "shall prepare, or cause to be prepared by contract, the environmental impact report for the project, if such report is required...."

The State CEQA Guidelines (hereafter "Guidelines") (Cal.Code Regs., tit. 14, § 15000 et seq.) implement CEQA. (See § 21083; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2, 253 Cal.Rptr. 426, 764 P.2d 278.) Guidelines section 15050, subdivision (a) ["Lead Agency Concept"] says, "Where a project is to be carried out or approved by more than one public agency, one public agency shall be responsible for preparing an EIR or negative declaration for the project. This agency shall be called the lead agency."

Guidelines § 15051 ["Criteria for Identifying the Lead Agency"] states in pertinent part: "Where two or more public agencies will be involved with a project, the determination of which agency will be the lead agency shall be governed by the following criteria:

".........................

"[b](2) Where a city prezones an area, the city will be the appropriate lead agency for any subsequent annexation of the area and should prepare the appropriate environmental document at the time of prezoning. The local agency formation commission shall act as a responsible agency." ⁵

Here, because Anderson prezoned the area in question, Guidelines section 15051, subdivision (b)(2) plainly designated Anderson as lead agency with responsibility for preparing an EIR.

Redding contends Guidelines section 15051, subdivision (b)(2) cannot be reconciled with the holding of our Supreme Court in Bozung v. Local Agency Formation Com., supra, 13 Cal.3d 263, 118 Cal.Rptr. 249, 529 P.2d 1017 and is therefore invalid. (See Woods v. Superior Court (1981) 28 Cal.3d 668, 679, 170 Cal.Rptr. 484, 620 P.2d 1032.) In Bozung, the court held that a LAFCO, not a city, was the lead agency with respect to an annexation project. (Id., at pp. 285-286, 118 Cal.Rptr. 249, 529 P.2d 1017.) Redding contends Bozung's holding became a part of section 21067, defining "lead agency," and the holding has not been changed by the Legislature. (See People v. Hallner (1954) 43 Cal.2d 715, 720, 277 P.2d 393.)

Redding misperceives the basis of Bozung's holding and overlooks changes in statutes and Guidelines enacted and promulgated since Bozung.

As we shall explain, when Bozung was decided in 1975, the concept of a "responsible agency" appeared nowhere in CEQA's statutory scheme. Then, as now, section 21165 empowered the Office of Planning and Research to designate which public agency should be "lead agency" in the event of a dispute. However, other than The Bozung court relied on this former guideline in concluding that LAFCO was the appropriate lead agency. (Bozung, supra, 13 Cal.3d at pp. 285-286, 118 Cal.Rptr. 249, 529 P.2d 1017.)

                such designation, former Guidelines section 15065, subdivision (c) then provided the only basis for deciding which of several qualified public agencies concerned with a project was to play the role of "lead agency."  (Bozung, supra, 13 Cal.3d at pp. 282, 286, fn. 30, 118 Cal.Rptr. 249, 529 P.2d 1017.)   That Guideline stated in relevant part "[T]he agency which is to act first on the project in question shall be the lead agency." 6
                

Shortly after Bozung, the Legislature enacted various statutes which for the first time set forth a definition of "responsible agency," clarified the roles of "lead agency" and "responsible agency," and provided a basis in CEQA other than temporal sequence of action for distinguishing between the roles and responsibilities of two or more public agencies in connection with a project.

Thus, in 1976, the Legislature added section 21069, creating and defining a "responsible agency." (Stats.1976, ch. 1312, § 7.1, p. 5891.) In the same year, the Legislature also enacted section 21002.1, which provided in pertinent part: ⁷ "(d) ... A local agency functioning as a lead agency shall have responsibility for considering the effects, both individual and collective, of all activities involved in a project. A local agency functioning as a responsible agency shall have the responsibility for considering only the effects of those activities involved in a project, which it is required by law to carry out or approve." (Stats.1976, ch. 1312, § 1.5 p. 5889.)

Additional amendments to CEQA were enacted in 1977, 1979, and 1980 which progressively sharpened the distinction between the roles and duties of lead agencies and responsible agencies. ⁸ Among these enactments was section 21080.1, which gives the lead agency responsibility for deciding whether an EIR or negative declaration shall be prepared and makes the determination binding on a responsible agency unless the determination is challenged by lawsuit pursuant to section 21167. ⁹

It is in this new statutory setting that Guidelines section 15051, subdivision (b)(2) was...