Mountain Defense League v. Board of Supervisors

• Decision Date: 06 January 1977
• Citation: 135 Cal.Rptr. 588,65 Cal.App.3d 723
• Parties: MOUNTAIN DEFENSE LEAGUE et al., Petitioners and Appellants, v. BOARD OF SUPERVISORS, SAN DIEGO COUNTY, Respondent. Lincoln MARTIN et al., Real Parties in Interest. Civ. 14434.
• Court: California Court of Appeals Court of Appeals

Page 588

135 Cal.Rptr. 588

65 Cal.App.3d 723

MOUNTAIN DEFENSE LEAGUE et al., Petitioners and Appellants, v. BOARD OF SUPERVISORS, SAN DIEGO COUNTY, Respondent.

Lincoln MARTIN et al., Real Parties in Interest.

Civ. 14434.

Court of Appeal, Fourth District, Division 1, California.

Jan. 6, 1977.

Hearing Denied March 3, 1977.

John D. Alspach, San Diego, for petitioners and appellants.

Robert G. Berrey, County Counsel, by Donald L. Clark, Chief Asst. County Counsel, and Gregory C. M. Garratt, Deputy County Counsel, San Diego, for respondent.

Ward, Jones, Aguirre & Seidenwurm by Gary J. Aguirre and William W. Ravin, San Diego, for real parties in interest.

GERALD BROWN, Presiding Justice.

The Mountain Defense League, an unincorporated association, and Byron, F. Lindsley, Jr. appeal the judgment denying their petition for a writ of mandamus to direct the Board of Supervisors of San Diego County to deny Lincoln and Purvis Martin permission to proceed with their private development plan, PDP 72--10, and to rescind the conforming amendment of the San Diego County General Plan.

Our statement of the facts comes from the parties' settled statement. The Martins' proposed development as submitted to the Board included a 100-room lodge, a 20-room lodge, swimming pool, tennis courts, a restaurant and 100 two and a half acre homesites on about 1000 acres of wooded, hilly land east of San Diego. Approval of the plan necessitated an acceptance of the environmental impact report (EIR) required under the CEQA (Pub.Res.Code § 21000 et seq.) and an amendment of the general plan as required by AB 1301 (Gov.Code § 65300 et seq.). After the required hearings on the matter, the plan was approved by the Board; the Mountain Defense League petitioned the superior court for an alternative writ of mandate which was denied.

Initially we must determine which standard of review should have been used in the trial court. If the action taken by the Board was legislative, then its decision should be tested by the arbitrary and capricious standard (Code Civ.Proc., § 1085; Strumsky v. San Diego County Employees Retirement Assn., 11 Cal.3d 28, 34, fn. 2, 112 Cal.Rptr. 805, 520 P.2d 29); however, if the decision was quasi-judicial in nature, either the independent judgment rule or the substantial evidence test is proper (Code Civ.Proc., § 1094.5). When the independent judgment rule applies, the trial court makes its own independent findings, and review on appeal is directed to whether there is substantial evidence to support the court's findings (Moran v. Board of Medical Examiners, 32 Cal.2d 301, 308, 196 P.2d 20). On the other hand, if the substantial evidence test applies, both the trial and appellate courts limit their review to the question of whether the agency's findings were supported by substantial evidence (Neely v. California State Personnel Bd., 237 Cal.App.2d 487, 489, 47 Cal.Rptr. 64).

The independent judgment test is reserved for those situations where the administrative decision substantially affects a fundamental, vested right acquired by the petitioner (Bixby v. Pierno, 4 Cal.3d 130, 143--144, 93 Cal.Rptr. 234, 481 P.2d 242; Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28, 32, 112 Cal.Rptr. 805, 520 P.2d 29). The question of what constitutes a fundamental, vested right must be answered on a case-by-case basis and considers not only the economic aspects involved but also 'the effect . . . in human terms and the importance of it to the individual in the life situation.' (Bixby v. Pierno, supra, 4 Cal.3d 130, 144, 93 Cal.Rptr. 234, 244, 481 P.2d 242, 252.) Even so, it is necessary to allege a deprivation of the right to property or to a livelihood (Bixby v. Pierno, supra, 4 Cal.3d 130, 144, 93 Cal.Rptr. 234, 481 P.2d 242).

Here the Defense League challenges the Board's amendment to the general plan which included the simultaneous approval of the private development plan. ¹

The adoption of a general plan, like the adoption of a zoning ordinance is a legislative function (Gov.Code §§ 65300, 65850). In contrast, the granting or denial of a zoning variance, or a conditional use permit is an administrative, quasi-judicial act which is reviewed by the substantial evidence test (Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506, 512, 113 Cal.Rptr. 836, 522 P.2d 12; San Diego Bldg. Contractors Assn. v. City Council, 13 Cal.3d 205, 212, fn. 5, 118 Cal.Rptr. 146, 529 P.2d 570). No case law has been brought to our attention as to the type of judicial review which should be used in assessing decisions about general plan amendments. Where the county considers such amendments simultaneously with the adoption of PDP, the change in the general plan usually involves only one parcel. Thus, it would be easy to analogize general plan amendments to zoning variances and conclude that the substantial evidence rule was proper. On the other hand, statutes on adopting the plan, a legislative function, include its amendment (Gov.Code § 65350 et seq.); the size of the parcel here, about 1000 acres, is more appropriately the subject of legislative rather than piecemeal administrative adjudication (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506, 522, 113 Cal.Rptr. 836, 522 P.2d 12). However, having presented the issue, it is not necessary for us to decide it. Where, as here, an agency in two capacities is simultaneously disposing of two legally required functions with but one decision, review of that determination must be by the more stringent standard. Generally a legislative function involves the application of a rule in all future cases, whereas quasi-judicial action is the determination of specific rights under existing law with regard to a specific fact situation. Consideration of a PDP falls in the latter category and its denial or approval is a quasi-judicial act subject to the substantial evidence test.

The Defense League argues the trial court should have applied the most stringent test, the independent judgment test, in reviewing the Board's decision to approve the PDP and amend the general plan. As noted above, this standard is used only when the decision affects a fundamental, vested right of the petitioner (Bixby v. Pierno, supra, 4 Cal.3d 130, 143--144, 93 Cal.Rptr. 234, 481 P.2d 242). Here the Defense League asserts it has a right to the conservation and preservation of open space as embodied in the California Constitution ² and Government Code section 65562. ³ It also asserts an economic stake in discouraging non-contiguous development. ⁴ To show that their rights are vested the Defense League and Lindsley allege they have enjoyed the right to open space through hiking, camping and 'simply viewing its pristine beauty.' They say this right will be substantially affected since the development will 'totally destroy' the open space.

A fundamental, vested right is one 'which has been legitimately acquired or is otherwise 'vested,' and . . . is of a fundamental nature from the standpoint of its economic aspect or its 'effect . . . in human terms and the importance . . . to the individual in the life situation" (Transcentury Properties, Inc. v. State of California, 41 Cal.App.3d 835, 844, 116 Cal.Rptr. 487, 492). Fundamental vested rights include: the opportunity to continue practicing one's profession by having one's license restored (Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75, 85, 87 P.2d 848); or the right to receive a service-connected death allowance (Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28, 45, 112 Cal.Rptr. 805, 520 P.2d 29). However, an organization of taxpayers and surrounding property owners has no fundamental vested right in the granting or denial of a zoning variance (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506, 510, 113 Cal.Rptr. 836, 522 P.2d 12); a tentative subdivision map (Friends of Lake Arrowhead v. Board of Supervisors, 38 Cal.App.3d 497, 518, fn. 18, 113 Cal.Rptr. 539); or a special use permit (Jones v. City Council, 17 Cal.App.3d 724, 728--729, 94 Cal.Rptr. 897); the owners of Bay Bridge bonds have no fundamental vested right in preventing the construction of a second toll crossing on the San Rafael-Richmond Bridge (Faulkner v. Cal. Toll Bridge Authority, 40 Cal.2d 317, 323, 329--330, 253 P.2d 659); a water district has no fundamental vested right to a permit to divert water from the San Jacinto River (Temescal Water Co. v. Dept. of Public Works, 44 Cal.2d 90, 103, 280 P.2d 1). Here Lindsley and the members of the Defense League make no allegations which connect them with the specific piece of land in question. They say they enjoy the open space by hiking through it, camping in it and looking at it. But, they have acquired no rights to do this on Martins' property. Just as there is no vested right to obtaining a professional license, in contrast to having one revoked (Dare v. Bd. of Medical Examiners, 21 Cal.2d 790, 795, 136 P.2d 304) or restored (Drummey v. State Bd. of Funeral Directors, supra, 13 Cal.2d 75, 85, 87 P.2d 848), so petitioners here have no vested right in having the Martins develop their land according to the petitioners' design. The trial court's use of the substantial evidence test in reviewing the Board's decision was proper.

The Defense League argues there is no substantial evidence to support the Board's decisions, questioning whether the Board considered the whole record, including contradictory as well as supporting evidence (Code Civ.Proc., § 1094.5; Bixby v. Pierno, supra, 4 Cal.3d 130, 144, 93 Cal.Rptr. 234, 481 P.2d 242). It supports this contention with the EIR which the League says has 'literally pages of adverse environmental impacts . . . (and) only three positive benefits.' Here the three positive effects were: The development would reduce the threat of fires in the area; more than one-half of the...