Running Fence Corp. v. Superior Court

• Decision Date: 17 September 1975
• Citation: 124 Cal.Rptr. 339,51 Cal.App.3d 400
• Parties: RUNNING FENCE CORPORATION, Petitioner, v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA, Respondent; COMMITTEE TO STOP THE RUNNING FENCE, an unincorporated association, and Mary McChesney, Real Parties in Interest. Civ. 37246.
• Court: California Court of Appeals Court of Appeals

Page 339

124 Cal.Rptr. 339

51 Cal.App.3d 400

RUNNING FENCE CORPORATION, Petitioner, v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA, Respondent;

COMMITTEE TO STOP THE RUNNING FENCE, an unincorporated association, and Mary McChesney, Real Parties in Interest.

Civ. 37246.

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

Sept. 17, 1975.

Edwin C. Anderson, Jr., John R. O'Brien, Spridgen, Barrett, Achor, Luckhardt, Anderson & James, Santa Rosa, Paul D. Kayfetz, Bolinas, Howard N. Nemerovski, Jerome B. Falk, Jr., Stephen M. Tennis, Fred H. Altshuler, Howard, Prim, Rice, Nemerovski, Canady & Pollak, San Francisco, for petitioner.

Thomas A. Haeuser, Sonoma, for real parties in interest.

SIMS, Associate Justice.

By petition filed with this court petitioner, the successful applicant for a use permit to construct 'the Christo Running Fence, a specialty Fence Art Project' and to display it for a period of 14 days, seeks a writ to restrain the respondent court from taking any further proceedings in an action brought by real parties in interest in which the respondent court orally ordered the issuance of a peremptory writ of mandate directing the board of supervisors to set aside resolutions it adopted in connection with the denial of an appeal from the grant of such permit, and directing the board not to issue such use permit, or any other permit for the project, until after the preparation, review and approval of an environmental impact report in accordance with procedures prescribed by law and applicable regulations. The Sonoma County Environmental Protection Committee ¹ the County Board of Zoning Adjustments and the board of supervisors had all determined that the project was one which would not have a significant effect on the environment. (See Pub.Resources Code, §§ 21151 and 21152, subd. (a), and discussion part IV below.) The substantive issue is whether that action was proper. The procedural issues are whether the respondent court acted in excess of its jurisdiction in granting relief to the real parties in interest on the record before it. Preliminarily, petitioner is confronted with the question of whether it should be relegated to its right to appeal.

For reasons discussed below it is determined that the substantive issues are properly before this court, and that on the record before it, the trial court erred in setting aside the resolutions of the board of supervisors and in ordering that the preparation of an environmental impact report was a condition precedent to the issuance of the use permit. The relief requested by petition must be granted.

I

Following the full course of the administrative proceedings which were provided under local ordinance (see fn. 1 above), the real parties in interest sought judicial review. Since a hearing was required under the local ordinance (id.) the proper procedure, as has been recognized by the parties, was an action in accordance with the provisions of section 1094.5 of the Code of Civil Procedure. ² In their petition for writ of mandamus the protestants attacked the action of the board of supervisors in adopting a negative declaration, and in issuing the use permit, on the basis of that declaration, without an environmental impact report, on the following grounds: '7. Respondent's action in adopting the Negative Declaration and in determining that no environmental impact report was required constituted prejudicial abuse of discretion in that respondent failed to proceed in the manner required by law, . . .' ³ ( ) '8. Respondent's decision that these may not be any significant environmental effect, and to adopt the Negative Declaration, is not supported by the findings contained in the resolution, . . .' ⁴; and paragraph 9 which sets forth five particulars in which it is alleged that the board's resolution to adopt a negative declaration is not supported by substantial evidence. ⁵

The real party in interest, petitioner herein, and the board of supervisors each filed answers in which they denied the material charges of the petition, and set up as affirmative defenses the failure of the protestants to state a cause of action, the protestants' lack of standing to bring the action, the failure of protestants to exhaust their administrative remedies, the failure of protestants to produce the administrative record, and laches because of the delay of protestants in filing the action (see fn. 9 below). Real party in interest also filed declarations executed by one of its attorneys and by a member of the staff of the Sonoma County Planning Commission, which set forth in considerable detail, with exhibits, the procedures which had been followed and investigations that had been conducted in connection with the adoption of the negative declaration and the issuance of the use permit.

The protestants filed replications denying the allegations of the affirmative defenses asserted by respondent board and the permittee. They also filed a declaration of the chairperson of protestant The Committee to Stop the Running Fence, in which she stated it was an incorporated association formed February 27, 1975, because of mutual concern about the effect of the project on the environment and that she had attended the hearing before the board which was conducted on the appeal of her husband, who himself is a member of the committee. She also alleged that there were editorials, numerous articles and letters to the editor, expressing views both in favor of and opposed to the construction of the fence, and she attached copies of many to her declaration.

The matter came on for hearing June 17, 1975, on the alternative writ issued by the court. The court denied the protestants' motion for a continuance, and a motion to dismiss interposed by the permittee in interest. Over the objections of the respondent board and the permittee the chairperson of the protesting committee was permitted to testify concerning the nature of the committee; her presence at the hearing before the board of supervisors; concerns voiced about excessive traffic, that the fense would contribute to crowds, the obstacle that the fence would create to wildlife, sight pollution, and the number of holes that would be dug. She verified that the individual co-protestant in the administrative mandamus action had appeared and spoken against the petition. She testified concerning the newspaper coverage of the project. She explained the delay in filing suit on the basis of her belief that nothing could be done until the permittee secured approval from other agencies and because the resolution of the board of supervisors was not readily available. She elaborated on her interest in the fense by reference to her residence in close proximity to where it was planned, and her opinion that the construction and exhibition of the fence would compound her existing traffic problem. Cross-examination indicated that the witness did not live as close to the fence site as she said; and that there was considerable evidence before the board of supervisors, including a letter from the California Highway Patrol captain, that he had no objection from a traffic viewpoint consideration if (as is provided in the use permit) the fence panels could be removed immediately on request of the California Highway Patrol if necessary to maintain safe traffic movement. Other testimony referred to the preponderance of letters in favor of the project and the approval of the landowners directly concerned. No further testimony was adduced and the matter was continued for two days to permit the protestants to file the declarations which have been referred to above.

At the continued hearing, June 19, 1975, the protestants' attempts to introduce in evidence minutes of the supervisor's meeting and copies of the letters addressed to the board in connection with that meeting, failed because the documents were not authenticated. The matter was submitted on the pleadings, points and authorities submitted by each side, the two declarations, including the exhibits attached thereto, filed on behalf of the permittee (with the exception of one paragraph), the declarations of the chairperson of the protesting committee together with newspaper clippings (received over the persistent objections of the permittee), the declaration of the attorney for the protestants (over objections, in part sustained), and the testimony received at the first hearing. Following oral argument the court continued the matter until later in the day for decision.

At the afternoon session the court announced its decision as follows: 'I've concluded that I must rule in favor of the petition, in support of the petition, and accordingly, I order the issuance of a preemptory (sic) writ of mandate directed to the respondent and directing the respondent to set aside its resolution No. 48447 and its resolution No. 48448, and further directing the respondent not to issue to the real party in interest a use permit And directing every agency of the County of Sonoma not to issue any permit for the project described in the petition until after the preparation, review and approval of an environmental impact report in accordance with the procedures required by the California Environmental Quality Act and the guidelines for implementation of that Act published in the California Administrative Code.' (Emphasized portion added in subsequent discussion by the court.) The court's findings as then announced are discussed below. When one of the permittee's attorney asked if the court wished findings of fact and conclusions of law prepared, the judge replied that he did, and inquired whether the permittee requested the same. (See Code Civ.Proc. § 632; Cal.Rules of Court, rule 232.) The attorney and his co-counsel then answered that they did, and the attorney subsequently stated that he had no objection to preparing the findings. The record is uncertain as to whether the judge's pronouncement was merely an...