City of Santa Ana v. City of Garden Grove

• Decision Date: 27 December 1979
• Citation: 160 Cal.Rptr. 907,100 Cal.App.3d 521
• Parties: CITY OF SANTA ANA, etc., Plaintiff and Appellant, v. CITY OF GARDEN GROVE, etc., et al., Defendants and Respondents. Civ. 20843.
• Court: California Court of Appeals Court of Appeals

Page 907

160 Cal.Rptr. 907

100 Cal.App.3d 521

CITY OF SANTA ANA, etc., Plaintiff and Appellant, v. CITY OF GARDEN GROVE, etc., et al., Defendants and Respondents.

Civ. 20843.

Court of Appeal, Fourth District, Division 2, California.

Dec. 27, 1979.

Keith L. Gow, City Atty., Edward J. Cooper, Asst. City Atty., Richard E. Lay, Deputy City Atty., for plaintiff and appellant

George Deukmejian, Atty. Gen., E. Clement Shute, Jr., Asst. Atty. Gen., Mark I. Weinberger and Timothy R. Patterson, Deputy Attys. Gen., as amicus curiae on behalf of plaintiff and appellant.

Eric Lauterer, City Atty., for defendants and respondents.

OPINION

TAMURA, Acting Presiding Justice.

The City of Santa Ana appeals from an order denying its petition for administrative mandamus seeking review and annulment of a resolution of the City Council of the City of Garden Grove amending its general plan by redesignating a parcel of land on which the boundaries of the City of Santa Ana abut from low density residential to industrial. The thrust of the petition was that the City Council of Garden Grove abused its discretion under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) in adopting a negative declaration instead of preparing an environmental impact report (EIR) before taking the challenged action. The trial court denied the petition on the sole ground that CEQA does not apply to an amendment to a general plan.

The pertinent facts may be briefly stated. Subject parcel consists of 54.27 acres in the City of Garden Grove located at the northwest corner of the intersection of Euclid Street and Hazard Avenue. The boundaries of Santa Ana lie directly south of Hazard Avenue and east of Euclid Street. Garden Grove initiated proceedings to amend its general plan by changing the land use designation of the parcel from low density residential to industrial. Based upon a preliminary study of the environmental impact of the proposed amendment, the city council adopted a negative declaration finding that the redesignation would not have a significant effect on the environment. Following a public hearing, the city planning commission recommended against the redesignation on grounds that the surrounding area is predominantly residential, the existing circulation system would be unsuitable for industrial use and the proposed designation would not be the highest and best use of the property. The city council held a public hearing and remanded the matter to the planning commission for reconsideration. On reconsideration, the planning commission again recommended against the redesignation. The city council, however, adopted a resolution amending the general plan stating that redesignation "will allow for the highest and best use of the property and is consistent with the city's goal of establishing a significant commercial and industrial tax base."

Santa Ana filed the instant proceeding alleging that the City of Garden Grove abused its discretion in adopting a negative declaration instead of preparing an EIR. Garden Grove's response was twofold: First, it contended that an amendment to a general plan is not a project requiring compliance with CEQA. Secondly, it maintained that there was substantial evidence supporting the adoption of the negative declaration and that there had been no abuse of discretion in failing to prepare an EIR. The trial judge rendered a memorandum of intended decision in which he held that CEQA does not apply to the enactment of an amendment to a city's general plan and that the provisions of section 15037, subdivision (a)(1), of the State's EIR Guidelines (Cal.Admin.Code, tit. 14, § 15000 et seq., hereafter, Guidelines) to the contrary were in excess of the rule-making power of the Office of Planning and Research and the Secretary of the Resources Agency (hereafter, Resources Agency). ¹ Accordingly, the court denied the petition for writ of mandate without addressing the question whether the adoption of a negative declaration instead of preparing an EIR constituted an abuse of discretion under CEQA.

In the analysis which follows we conclude that CEQA does apply to the adoption of an amendment to a general plan and that the matter should be remanded to the trial court for further proceedings consistent with that conclusion.

DISCUSSION

The answer to the question whether CEQA applies to an amendment to a general plan depends upon the scope of CEQA and the nature and effect of the governmental decision involved in the adoption or amendment of a general plan.

The statutory scheme of CEQA begins with a sweeping definition of the term "project" as any activity "directly undertaken by any public agency" ( § 21065, subd. (a)). The act then, however, limits its application generally to "discretionary projects" ( § 21080, subd. (a)) with certain specific statutory exceptions ( § 21080, subd. (b)) and exemptions authorized by the Guidelines adopted pursuant to section 21084 ( § 21085).

In describing the projects to which the act applies, section 21080, subdivision (a), provides: "(a) Except as otherwise provided in this division, this division shall apply to discretionary projects proposed to be carried out or approved by public agencies, Including, but not limited to, the enactment and amendment of zoning ordinances, the issuance of zoning variances, the issuance of conditional use permits and the approval of tentative subdivision maps (except where such a project is exempt from the preparation of an environmental impact report pursuant to Section 21166)." (Emphasis supplied.)

Although the adoption and amendment of general plans are not mentioned in section 21080, subdivision (a), neither are they exempted, either by the act or the Guidelines. Indeed, section 15037 of the Guidelines provides in pertinent part: "(a) Project means the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately, that is any of the following: (P) (1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities, clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and The adoption and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100-65700." (Emphasis supplied.)

Garden Grove contends that insofar as section 15037, subdivision (a), of the Guidelines includes the adoption and annulment of general plans, it is in excess of the statutory authority conferred on the Resources Agency to adopt rules and regulations for the implementation of CEQA and is therefore invalid. Garden Grove argues that had the Legislature intended to make CEQA applicable to the adoption or amendment of general plans, it would have specifically said so in section 21080, subdivision (a); that the express mention of "amendment of zoning ordinances, the issuance of zoning variances, the issuance of conditional use permits and the approval of tentative subdivision maps," imports a legislative intention to exclude other types of discretionary governmental acts relating to land use such as the adoption or amendment of general plans. We do not so read the statute.

The "expressio unius est exclusio alterius" canon of statutory construction is inapplicable to the construction of section 21080, subdivision (a). The attempted application of the canon overlooks the phrase " but not limited to" which precedes the various governmental actions relating to land use specifically mentioned in section 21080, subdivision (a). Use of those words manifests a legislative intent that the statute not be given an " expressio unius" construction.

Furthermore, Garden Grove's restrictive interpretation of CEQA is incompatible with our Supreme Court's admonition that CEQA "be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 768, 502 P.2d 1049, 1056; Bozung v. Local Agency Formation Com., 13 Cal.3d 263, 274, 118 Cal.Rptr. 249, 529 P.2d 1017.) Consistent with that policy, discretionary projects not expressly mentioned in section 21080, subdivision (a), have been held to be subject to CEQA. (Bozung v. Local Agency Formation Com., supra, 13 Cal.3d 263, 118 Cal.Rptr. 249, 529 P.2d 1017, local agency formation commission approval of a city annexation; People ex rel. Younger v. Local Agency Formation Com., 81 Cal.App.3d 464, 146 Cal.Rptr. 400, local agency formation commission approval of deannexation from a city; Edna Valley Assn. v. San Luis Obispo County, etc., Coordinating Council, 67 Cal.App.3d 444, 136 Cal.Rptr. 665, local transportation authority adoption of a regional transportation plan; Shawn v. Golden Gate Bridge, etc., Dist., 60 Cal.App.3d 699, 131 Cal.Rptr. 867, Golden Gate Bridge, Highway and Transportation District approval of increase in transportation rates.)

Garden Grove contends that the Resources Agency lacked the authority to adopt a regulation making the adoption or amendment of general plan projects subject to CEQA. The contention lacks merit. The statute confers upon the Resources Agency the authority to prepare and adopt guidelines "for the implementation" of the act by public agencies, including "objectives and criteria for the orderly evaluation of projects and the preparation of environmental impact reports and negative declarations in a manner consistent with" the act, and specifically to include "criteria for public agencies to follow in determining whether or not a proposed project may have a 'significant effect on the environment.' " ( § 21083, fn. 1, Ante.) The implementing Guidelines are also to "include a list of classes of projects which have been determined not to have a significant effect on the environment and which...