Friends of Lake Arrowhead v. Board of Supervisors

• Decision Date: 09 April 1974
• Citation: 113 Cal.Rptr. 539,38 Cal.App.3d 497
• Court: California Court of Appeals Court of Appeals
• Parties: FRIENDS OF LAKE ARROWHEAD et al., Plaintiffs and Appellants, v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS et al., Defendants and Respondents; Marvin WILSON and Kaiser-Aetna, Real Parties in Interest. Civ. 13038.

Page 539

113 Cal.Rptr. 539

38 Cal.App.3d 497

FRIENDS OF LAKE ARROWHEAD et al., Plaintiffs and Appellants, v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS et al., Defendants and Respondents Marvin WILSON and Kaiser-Aetna, Real Parties in Interest.

Civ. 13038.

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

April 9, 1974.

Hearing Denied June 5, 1974.

[38 Cal.App.3d 500] Young, Henrie & McCarthy and John C. McCarthy, Pomona, for plaintiffs and appellants.

Stanford D. Herlick, County Counsel, and Paul A. Grube, Jr., Deputy County Counsel, San Bernardino, for defendant and respondent San Bernardino County Bd. of Supervisors.

Alexander, Inman & Fine, Maurice C. Inman, Jr., and Bryan Kravetz, Beverly Hills, for real party in interest Marvin Wilson.

Reid, Babbage & Coil and Enos C. Reid, Riverside, for real party in interest Kaiser-Aetna.

OPINION

TAMURA, Associate Justice.

Plaintiffs instituted a proceeding in administrative mandamus to review and set aside actions of the County of San Bernardino approving three unrelated construction projects in the Lake Arrowhead area of the county. The main attack upon the projects was the alleged failure of the county to comply with requirements of the California Environmental Quality Act of 1970 (CEQA; Pub.Resources Code, § 21000 et seq.) ¹ Plaintiffs appeal from the judgment and order denying the petition as to two of the projects, the Marvin Wilson and the Kaiser-Aetna projects.

Each project involves different facts and legal issues. We shall, therefore, consider them separately.

WILSON PROJECT

Plaintiffs filed their initial petition on December 1, 1972. On December 15, 1972, they filed an amended petition which, insofar as the Wilson project was concerned, alleged in substance: On September 7, 1972, the county approved a tentative tract map for a planned development of 55 multiple residential units on a three acre parcel owned by Wilson; on November 2, 1972, the county issued a grading permit; as of December 1, 1972, no building permit had been issued and construction had not commenced; the impact of the development would be detrimental to the surrounding environment; the county's actions were invalid in that no environmental impact report was made or considered or, if made, was inadequate; and the tentative tract map for the proposed development is inconsistent with the adopted general plan and zoning for the area, rendering its approval invalid.

Upon the filing of the amended petition, plaintiffs obtained a restraining order and an order to show cause re preliminary injunction. The county and Wilson answered the petition and filed a declaration and memorandum of authorities in opposition to the order to show cause. The matter was argued and submitted on the pleadings, declarations and record of the proceeding before the county planning commission. ²

The pertinent facts are not in dispute. Chronologically, they may be summarized as follows:

In the spring of 1972 Wilson commenced negotiations to acquire the three acre parcel in question. A dilapidated 38 unit motel cottage complex which had been closed since October 1971 was located on the property. The property had been zoned R--3 for a number of years. Wilson employed a firm of engineers to prepare a site development plan for a 55 unit planned residential development and a tentative tract map.

On September 7, 1972, following a public hearing, the planning commission unanimously approved the tentative tract map and site development plan. Although two of the individual plaintiffs in the present action (Peter Lubisich, Jr. and Donald Burns) appeared at the planning commission hearing and voiced their objections to the tentative tract map, no appeal was taken by anyone from the planning commission decision.

On October 12, 1972, a grading plan and plans for the construction of a retaining wall were filed with the planning department.

Permits for the work issued immediately thereafter.

On October 24, 1972, Wilson obtained a $2,900,000 construction loan for the project.

On October 27, 1972, the planning department made a finding that the project had a 'non-significant effect' on the environment and accordingly determined that an environmental impact report (EIR) would not be required.

On November 6, 1972, Wilson began demolition of existing structures and thereafter graded the site and constructed the retaining wall. Land acquisition costs and the costs of the foregoing work exceeded $735,000. Prior to December 1, 1972, Wilson entered into binding contracts for construction and materials in excess of $900,000.

On November 27, 1972, the county issued a building permit for the construction of the project, and Wilson applied for a permit from the state division of highways for the construction of an access driveway to the development.

On December 4, 1972, Wilson submitted a final tract map to the county surveyor for review and approval.

On December 7, 1972, the county department of building and safety issued permits for electrical, plumbing and heating work.

Following the hearing, the court entered a minute order announcing its intended decision to deny the application for preliminary injunction and to deny the petition for writ of mandate. Plaintiffs requested findings of fact and conclusions of law. The court thereupon made and entered an order denying the petition in which it found the facts recited above and concluded that the petition should be denied because (1) plaintiffs had failed to exhaust their administrative remedies; (2) the project had been confirmed and validated by the provisions of a 1972 urgency measure amending the CEQA (Stats.1972, ch. 1154, effective Dec. 5, 1972); and (3) plaintiffs had been guilty of laches.

Plaintiffs contend: (1) The court erred in concluding that plaintiffs failed to exhaust their administrative remedies; (2) the court erred in concluding that the project was validated by the 1972 urgency amendment to the CEQA; and (3) the tentative tract map was invalid in that it was in conflict with the adopted general plan and zoning for the area.

(a) Exhaustion of Administrative Remedies

It is settled that before one claiming to be aggrieved by a decision of an administrative agency may seek judicial relief, he must first exhaust his administrative remedies. (Metcalf v. County of Los Angeles, 24 Cal.2d 267, 269, 148 P.2d 645; Igna v. City of Baldwin Park, 9 Cal.App.3d 909, 915, 88 Cal.Rptr. 581; Dunham v. City of Westminster, 202 Cal.App.2d 245, 249--250, 20 Cal.Rptr. 772.) The court below took judicial notice of section 61.0222 of the San Bernardino County Code, which provides in pertinent part as follows: 'Any order, requirement, decision, determination, interpretation of ruling made by the County Planning Commission in the administrative enforcement of the provisions of this Code, may be appealed therefrom to the Board of Supervisors by any person aggrieved, or by an officer, board, department or bureau of the County. . . .' The record of the planning commission proceeding in which the Wilson tentative tract map was approved shows that the two individual plaintiffs appeared at the public hearing but took no appeal from the planning commission decision. The court, therefore, concluded that plaintiffs failed to exhaust their administrative remedies.

Plaintiffs contend that the quoted county code provision was not intended to grant 'any person aggrieved' the right to appeal a planning commission decision approving a tentative tract map and, more importantly, assuming it was so intended, it is in conflict with the Subdivision Map Act (Bus. & Pro.Code, § 11500 et seq.) and therefore invalid. Plaintiffs point to Business and Plaintiffs urge that, except to the extent the Subdivision Map Act expressly or by necessary implication authorizes local agencies to enact supplemental ordinances, the state law preempts the field of subdivision regulation. They contend that the act does not authorize enactment of a local ordinance extending the right of appeal from an advisory agency decision on a tentative tract map to any aggrieved person. They therefore maintain that as dissatisfied members of the public they had no administrative remedy which they could have validly pursued.

Professions Code section 11552 ³ which [38 Cal.App.3d 504] gives the right of administrative appeal from a decision of the planning commission only to the subdivider who 'is dissatisfied with any action of the advisory agency with respect to the tentative map, or the kinds, nature and extent of the improvements recommended by the advisory agency to be required, . . .' The section does not give a right of appeal to any interested or aggrieved person.

Local agencies are expressly empowered to enact certain types of supplemental ordinances. (E.g., Bus. & Prof.Code, §§ 11506, 11525 (controlling design and improvement); Bus. & Prof.Code, § 11540.1 (regulating division of land not a subdivision); Bus. & Prof.Code, §§ 11543.5, 11547 (prescribing fees as a condition of approval); Bus. & Prof.Code, § 11546 (requiring dedication of land or payment of fees for park or recreational purposes); Bus. & Prof.Code, § 11525.2 (requiring dedication of land for school purposes).) The power to adopt supplemental ordinances or regulations in connection with From our analysis of the act, it is our conclusion that the county code, if construed as permitting Any aggrieved person to appeal a planning commission decision approving a tentative tract map, would conflict with Business and Professions Code section 11552. The language of that section indicates the Legislature intended to preempt the subject matter of appeals from advisory agency decisions on tentative tract maps. It contains comprehensive provisions governing such appeals; it prescribes who may appeal and sets forth in detail the procedure to be followed, including the time within which such appeals must be taken and the period within which decisions on...