People v. County of Kern

• Decision Date: 14 June 1974
• Citation: 115 Cal.Rptr. 67,39 Cal.App.3d 830
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. COUNTY OF KERN and the Superior Court of Kern County, Respondents; L. G. KENDALL and Eastco, Inc., Real Parties in Interest. Civ. 2200.

Page 67

115 Cal.Rptr. 67

39 Cal.App.3d 830

The PEOPLE, Petitioner, v. COUNTY OF KERN and the Superior Court of Kern County, Respondents L. G. KENDALL and Eastco, Inc., Real Parties in Interest.

Civ. 2200.

Court of Appeal, Fifth District, California.

June 14, 1974.

As Modified June 19, 1974.

[39 Cal.App.3d 832] Evelle J. Younger, Atty. Gen., Robert H. O'Brien, Asst. Atty. Gen., and Larry C. King, Deputy Atty. Gen., for petitioner.

Ralph B. Jordan, County Counsel, and D. N. Reid, Asst. County Counsel, Bakersfield, for respondent County of Kern.

No appearance for respondent Superior Court of Kern County.

Donald G. Kendall, Bakersfield, for real parties in interest.

OPINION

FRANSON, Associate Justice.

STATEMENT OF THE CASE

On November 2, 1973, the Attorney General, pursuant to his environmental protection powers under Government Code section 12600 et seq., ¹ filed an action in the superior court against the County of Kern, hereinafter 'County,' and real parties in interest, hereinafter 'Eastco,' seeking to enjoin the County from issuing any building permits or otherwise allowing Eastco to commence construction of the Rancho El Contento subdivision, hereinafter 'project,' and to require the County to prepare an adequate Environmental Impact Report, hereinafter 'EIR,' in connection with the project. On December 11, after a hearing, the trial court denied a preliminary injunction; the Attorney General filed a timely notice of appeal from this ruling. On February 1, 174, the Attorney General filed the instant petition for a writ of mandamus and/or supersedeas. On February 21, 1974, we issued an order to show cause and directed the trial court to issue a restraining order enjoining the County and Eastco from issuing any permits or taking any action which would allow construction of the project pending further order of this court. On February 25 the trial court issued the restraining order.

Petitioner alleges that on October 1, 1973, the County granted an amendment to the zoning ordinance to allow Eastco to proceed with construction of the project without first complying with the requirements of the California Environmental Quality Act of 1970 (Pub.Resources Code, § 21000 et seq.), hereinafter 'CEQA,' and the Guidelines for Implementation of the CEQA (tit. 14, Cal.Admin.Code, § 15000 et seq.), hereinafter, 'guidelines.' ² Specifically, it is alleged that the County failed to properly evaluate and respond to the comments and objections to the draft EIR as required by section 15146 of the guidelines.

Rancho El Contento is a proposed subdivision identified as Tract Nos. 3590 and 3591 in Kern County, consisting of 356 lots situated on 275 acres in the Cuddy Valley in the Los Padres National Forest. The valley lies at an elevation of 5,300 to 6,000 feet and is surrounded by mountains of up to 7,500 feet. The native vegetation includes annual grasses, pine trees, manzanita and junipers, and numerous species of wild animals inhabit the area. The valley is currently devoted almost exclusively to recreational purposes with a small number of permanent residents.

Petitioner alleges that the development of the project will have a major adverse effect on the environment of Cuddy Valley, particularly as to regional water quality, basin air pollution, endangered species such as the California Condor, access problems due to limited roads, adequate water supply and seismic problems from the San Andreas Fault. It is further alleged that the project will adversely affect several nonprofit organizations such as the San Fernando Girl Scout Council, the Southern California District Pentecostal Church of God and the American Baptist Churches of the Pacific Southwest, which operate comps for children and adults from the Los Angeles area which are situated immediately adjacent to the location of the project. It is asserted that the project will completely surround a one-acre parcel of land owned by the Girl Scouts on which their well, which supplies 100 percent of their water, is located.

In response to the petition, the County and Eastco make three basic contentions: First, that Eastco had a vested right to the zoning change on October 1, 1973, by reason of a tentative map approval of the subdivision on May 15, 1972, and the adoption of a specific plan for the development of Cuddy Valley on October 17, 1972; as a consequence the County cannot exercise its police power to deprive Eastco of its right to commence construction of the project. Second, that under the validating provisions of CEQA (Pub.Resources Code, § 21169, effective December 5, 1972), the project having been undertaken and approved by the approval of the tentative map and the adoption of the specific plan, became legally effective notwithstanding the failure to comply with the CEQA and its EIR requirements. And third, that if the project was not exempt from the requirements of CEQA, the final EIR as adopted by the board of supervisors on October 1, 1973, fully complied with the law.

FACTS

In September 1971 Eastco acquired title to the subject property for development of a mountain subdivision. The property was zoned 'A--1' (Light Agricultural). ³ On May 15, 1972, tentative subdivision maps for Tract Nos. 3590 and 3591 were approved subject, among other conditions, to the adoption of a specific plan for the development of Cuddy Valley and to Eastco's obtaining a zone change of the property from A--1 to E--1 and E--3 'Estate' zones, in order to establish a larger minimum lot size to control population density, apparently as required under the county ordinances for mountain subdivisions. ⁴ Thereafter, Eastco submitted a specific plan for the development of Cuddy Valley and applied to the County for rezoning to conform with the tentative maps. A specific plan was approved by the planning commission on September 5, 1972, and adopted by the board of supervisors on October 17, 1972. The plan called for minimum lot sizes of 14,000 square feet, and the board's approval expressly provided that 'amendments to the Zoning Ordinance applicable to the area shall conform to this specific plan' in accordance with the tentative maps on file.

On April 17, 1973, the County ordered Eastco to file an EIR in connection with its application for rezoning. ⁵ About May 8, 1973, a none-page draft EIR prepared on behalf of Eastco by French & Associates, civil engineers, was filed with the County planning department. The draft EIR generally complies with the CEQA and its guidelines for such reports. Subsequently, the County prepared a four-page addendum to the draft EIR which listed the adverse environmental effects 'which cannot be avoided if the proposal is implemented.' The report was circulated to interested public agencies and private groups. (See Pub.Resources Code, §§ 21104, 21105, 211153; Cal.Admin.Code, tit. 14, §§ 15085, 15160 et seq.)

Numerous comments and extensive criticism of the draft EIR and the County's addendum were received by the County. These comments, besides challenging the accuracy of certain aspects of the report, raised numerous and serious questions regarding the unavailability of water and the inadequacy of current data to determine the effect of the development on the water supply, potential ground water pollution, inadequate geological surveys and the fact that the development site is directly over the San Andreas Fault and is adjacent to several other faults, the inadequacy of current electrical facilities, the inadequacy of the only road leading to the valley, safety hazards in case of fire, erosion of the soil, air pollution damage to the trees, the historical and archelogical value of the area, overpopulation, adverse effects on the surrounding youth camps and the combined effects of the development with other anticipated developments in the area.

Upon receiving these comments the planning department prepared a five-page addendum to the draft EIR. It also prepared a two-page 'environmental impact summary' which merely contained one paragraph statements of the major impacts on population, water supply, sewage disposal, air pollution, geologic hazard, wildlife and access-circulation. On October 1, 1973, the board of supervisors ordered the two-page summary to be made a part of the final EIR. The final EIR also had attached to it the comments and objections of the various public agencies and private groups which had considered the draft EIR. Neither the planning department's five-page addendum nor the two-page summary contains a response by the County to the significant environmental issues raised, nor do they address in any detail the reasons why the specific comments and objections received from the interested agencies and private groups were not accepted, and why the board apparently concluded that the value of the development warranted an override of the environmental objections.

On October 1, 1973, members of the public appeared before the board. They presented additional comments and objections and pointed out that the EIR did not respond to their comments and objections as required by law. Nevertheless, the board approved the final EIR and adopted an ordinance granting Eastco the zoning change. On October 3, 1973, the County filed a notice of approval of the project as required by Public Resources Code section 21152. Thereafter the County issued a grading permit which permitted Eastco to grade the land and remove trees. ⁶ By affidavit, Eastco states that since it purchased the property in 1971 and up to the filing of the superior court action on November 2, 1973, it had expended in excess of $45,000 for architectural and engineering costs and fees, and other expenses incurred in connection with the development of the property.

DISCUSSION

Both the County and Eastco contend that by virtue of the approval of the tentative maps and the adoption of the specific plan Eastco acquired a vested right to continue with the project, unimpeded by any...