People ex rel. Dept. Pub. Wks v. Bosio

Citation121 Cal.Rptr. 375,47 Cal.App.3d 495
CourtCalifornia Court of Appeals
Decision Date25 April 1975
PartiesThe PEOPLE of the State of California, acting By and Through the DEPARTMENT OF PUBLIC WORKS, Plaintiff, Cross-Defendant and Respondent, v. Joseph J. BOSIO et al., Defendants, Cross-Complainants and Appellants. PRESERVE LOMPOC'S UNIQUE SURROUNDINGS, an Unincorporated Association,Homeowners Security Alliance, an Unincorporated Association, Petitioners andAppellants, v. DIVISION OF HIGHWAYS OF the DEPARTMENT OF PUBLIC WORKS OF the BUSINESS ANDTRANSPORTATION AGENCY of the State of California, Respondent. Civ. 43955.

Pier Gherini and John Gherini, Santa Barbara, for appellants.

Harry S. Fenton, Sacramento, Kingsley T. Hoegstedt, John P. Horgan, Norval Fairman, Francis A. McEnaney, and Robert R. Buell, San Francisco, for respondent.

POTTER, Associate Justice.

Statement of the Case

This is an appeal from a judgment in two consolidated actions in which appellants seek to prevent respondent Division of Highways of the Department of Public Works of the Business and Transportation Agency of the State of California (hereinafter 'Division of Highways') from carrying out a proposed state highway project known as the Lompoc Bypass, a freeway.

Appellants Bosio and Gherini were named as defendants in a condemnation action (No. SM 11049) commenced by respondent on May 25, 1972 to acquire property for use as right-of-way for the highway project. Their demurrer to the complaint filed October 4, 1972, raised the objection that the complaint did not show whether an environmental impact study and report had been made with respect to such project. That demurrer was overruled on January 24, 1973. In an accompanying statement of reasons the court said, 'The proper way to reach this problem would be for the defendants to raise the defense by answer, together with a cross-complaint for injunctive relief.' On March 7, 1973 such an answer and a cross-complaint to restrain further progress of the project were filed, asserting that it would have a significant effect upon the environment and that respondent Division of Highways had not complied with the Environmental Impact Report (hereinafter 'EIR') requirement of the California Environment Quality Act (hereinafter 'CEQA'). Demurrers and motions to strike the affirmative defense and cross-complaint and for summary judgment thereon were made by respondent; these resulted in an order of June 5, 1973 sustaining the demurrer to and motion to strike the affirmative defense but overruling the demurrer and denying the motion to strike and motion for summary judgment on the cross-complaint. The trial court thereupon severed the cross-complaint for injunctive relief from the other issues in the condemnation action.

The stated basis of the court's orders sustaining the demurrer to and striking the affirmative defense was its holding that the issue of alleged noncompliance with CEQA was not available as a defense to forestall the taking of the property by condemnation. An appeal by appellants Bosio and Gherini from these orders was dismissed by this court on the grounds of nonappealability and mootness, on February 2, 1974. Further attempts to obtain appellate review by extraordinary writ were also unsuccessfull, and the condemnation action is still pending, but inactive.

The other action (No. SM 13017) commenced July 12, 1973 by appellants Preserve Lompoc's Unique Surroundings (hereinafter 'PLUS') 1 and Homeowners Security Alliance (hereinafter 'Alliance') 2 was a petition for writ of mandamus; in it these appellants, as 'concerned' citizens and 'in the capacity of private attorneys general,' also attacked respondent's determination to carry out the rpoject without first complying with the requirements of CEQA.

Responsive pleadings were filed by respondent in both actions, raising the affirmative defense of laches. Thereafter, a supplemental cross-complaint was filed in No. 11049 by appellants Bosio and Gherini, (1) raising additional issues under the National Environmental Policy Act (hereinafter 'NEPA'), (2) asserting, in addition to their own interests as condemnees, 'the interests of the general public in requiring the cross-defendant to comply with both the National Environmental Policy Act and the California Environmental Quality Act,' and (3) seeking fees and court costs for 'acting as a private attorney general.'

The two actions were then consolidated for an early trial which commenced on July 25, 1973. After eleven days of trial, the matter was submitted. On August 13, 1973 the court announced its intended decision in favor of respondent on the dual bases that it had complied with all requirements of CEQA and that the actions of appellants were barred by laches. The NEPA was found inapplicable by reason of respondent's good faith determination not to qualify and project for Federal funds.

Immediately following the filing of the memorandum opinion, respondent indicated its intent to proceed with the project by letting a contract for its construction. Upon application to this court, further activity to carry out the project was ordered halted on August 22, 1973. Subsequently, a peremptory writ issued, extending that order until disposition of this appeal. 3

Findings were requested by appellants. When proposed findings were lodged by respondent, appellants filed (1) objections to the proposed findings, (2) counterfindings, and (3) request for special findings. The court signed findings and conclusions on November 2, 1973. These were followed on November 8, 1973 by the judgment adjudging that the applications of appellants for writ of mandate and injunctive relief be denied, and that appellants 'take nothing by reason of their cross-complaints, complaints and petitions herein.' This appeal followed.

Facts

This litigation involves the propriety of action taken by respondent Division of Highways with respect to the Lompoc Bypass, a project to relocate and convert to freeway a segment of Highway #1 in Santa Barbara County. As presently constituted, Highway #1 follows a route traversing the streets of the City of Lompoc. Lompoc is a small city of some 28,000 residents situated to the south and west of Santa Maria. It is in a valley through which the Santa Ynez River flows northwesterly toward the Pacific Ocean. Both sides of the valley are bordered by coastal hills. The valley proper is largely devoted to agricultural use.

Compliance with CEQA

The project, comprising some five miles of four-lane freeway with four interchanges and a paid of bridges several hundred feet in length across the Santa Ynez River, underwent its original planning phase in the period between 1960 and 1962. Initially it was planned and processed so as to become eligible for federal highway funds, though ultimately the respondent proceeded solely on the basis of state highway funds. In January 1961, respondent held a public meeting in Lompoc to consider alternative locations for the Lompoc Bypass. Interested members of the public attended and were heard; however, the possible effect of the project upon the environment was not discussed at said hearing. On June 21, 1961, the California Highway Commission adopted the present route of the Lompoc Bypass. Thereafter, in 1961 and 1962, respondent consulted with the local agencies and as a result freeway agreements were entered into with the City of Lompoc and with Santa Barbara County providing for the closure of local streets and for access to the freeway in accordance with the provisions of California Streets and Highways Code section 100.2. These agreements showed the general location of the freeway project to be on the west side of the Santa Ynez River adjacent to the easterly portion of the city, and the general placement of interchanges. Geometric maps of the four interchanges were submitted to the Federal Highway Administration which expressed no objection thereto. Under existing informal procedures, this constituted approval thereof.

No further action was taken by respondent to implement the plan to construct the Lompoc Bypass from 1962 until 1969. On September 7, 1969, the Highway Commission approved a budget which authorized $200,000 for right-of-way acquisition for this freeway. Since none of these funds were expended prior to June 30, 1970, they were transferred to the succeeding year's budget and $100,000 was added thereto, making a total authorization of $300,000 for right-of-way acquisition as of June 17, 1970. On October 22, 1970, another $620,000 was authorized for right-of-way acquisition. As of November 23, 1970, the effective date of CEQA, the sum of $20,525 had been spent for right-of-way acquisition. No funds had been authorized for or expended for costs of construction.

After CEQA became effective on November 23, 1970, generally requiring preparation of an EIR with respect to any projects state agencies proposed 'to carry out or approve which may have a significant effect on the environment' (Pub.Resources Code, § 21100), the Division of Highways issued a directive for environmental clearance for California highway projects entitled, 'Circular Letter No. 71--7,' effective February 16, 1971, which under the heading 'Application' provided:

'Either an Environmental Statement or Negative Declaration will be required on all projects unless regular right-of-way funds (i.e. capital outlay funds exclusive of hardship and protection funds) or construction funds were budgeted for the project prior to November 23, 1970.

Major projects (projects on new location or major reconstruction projects on adopted routes) that have advanced beyond the regular right-of-way funding stage must be reviewed to determine if the proposed design minimizes adverse environmental consequences and to examine the highway planning to insure that its environmental consequences were thoroughly considered. Such projects, to the extent practical, should...

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12 cases
  • Simi Valley Recreation & Park Dist. v. Local Agency Formation Com.
    • United States
    • California Court of Appeals
    • 25 Septiembre 1975
    ...to the environment within the reasonable scope of the statutory language' (see our opinion in People ex rel. Dept. Pub. Wks. v. Bosio, 47 Cal.App.3d 495, 515, 121 Cal.Rptr. 375), and '(i)t is, of course, too late to argue for a grudging, miserly reading of CEQA.' (Bozung v. Local Agency For......
  • Mount Sutro Defense Committee Regents of University of California
    • United States
    • California Court of Appeals
    • 24 Enero 1978
    ...the meaning of section 21102 finds further support in the language contained in the recent decision of People ex rel. Dept. Pub. Wks. v. Bosio (1975) 47 Cal.App.3d 495, 121 Cal.Rptr. 375, where, in construing the minimum requirement imposed under section 21102 determining the application of......
  • Sutter Sensible Planning, Inc. v. Board of Supervisors
    • United States
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    • 20 Agosto 1981
    ...Inc. v. City of Los Angeles ((1974)) 13 Cal.3d 68, 86 (118 Cal.Rptr. 34, 529 P.2d 66); see also People ex rel. Dept. Pub. Wks. v. Bosio (1975) 47 Cal.App.3d 495, 528 (121 Cal.Rptr. 375).) Indeed, full compliance with the EIR process has been recognized as necessary to enable the public to '......
  • Whitman v. Board of Supervisors
    • United States
    • California Court of Appeals
    • 17 Enero 1979
    ...v. City of Los Angeles, supra, 13 Cal.3d 68, 86, 118 Cal.Rptr. 34, 46, 529 P.2d 66, 78; see also People ex rel. Dept. Pub. Wks. v. Bosio (1975) 47 Cal.App.3d 495, 528, 121 Cal.Rptr. 375.) Indeed, full compliance with the EIR process has been recognized as necessary to enable the public "to ......
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