Whitman v. Board of Supervisors

• Decision Date: 17 January 1979
• Citation: 88 Cal.App.3d 397,151 Cal.Rptr. 866
• Court: California Court of Appeals Court of Appeals
• Parties: John WHITMAN et al., Petitioners and Appellants, v. The BOARD OF SUPERVISORS OF VENTURA COUNTY et al., Respondents; PHOENIX WEST OIL AND GAS CORPORATION, Real Party in Interest. Civ. 52617.

Page 866

151 Cal.Rptr. 866

88 Cal.App.3d 397

John WHITMAN et al., Petitioners and Appellants, v. The BOARD OF SUPERVISORS OF VENTURA COUNTY et al., Respondents PHOENIX WEST OIL AND GAS CORPORATION, Real Party in Interest.

Civ. 52617.

Court of Appeal, Second District, Division 3, California.

Jan. 17, 1979.

Hathaway, Clabaugh, Perrett & Webster and E. E. Clabaugh, Jr., Ventura, for petitioners and appellants

Evelle J. Younger, Atty. Gen. and Norman N. Flette, Deputy Atty. Gen. as amicus curiae for petitioners and appellants.

Dorothy L. Schechter, County Counsel, and R. Thomas Harris, Asst. County Counsel, Ventura, for respondents.

Loebl, Bringgold, Peck & Parker and William L. Peck, Ventura, for real party in interest.

REA, Associate Justice. ^*

Petitioners appeal from a judgment of the superior court denying their petition for extraordinary relief in the nature of mandamus and/or prohibition against the Board of Supervisors of Ventura County (the Board) for unlawfully and wrongfully granting a conditional use permit to Phoenix West Oil and Gas Corporation (Phoenix), the real party in interest. ¹

STATEMENT OF THE CASE

On June 27, 1975, Phoenix filed an application for a conditional use permit (CUP) to drill a single exploratory oil and gas well in the so-called Sisar Creek area of the Upper Ojai Valley in Ventura County. The Sisar Creek area apparently embraces limited oil and gas operations, but is adjacent to the productive Silverthread area, all of which is part of the Ojai Oil Field. Silverthread is considered to be a major oil field and is located to the south, southeast and southwest of the proposed project site. In recent years, there has been a substantial increase in the number of wells drilled and in total production in the Silverthread area, but a negligible increase in Sisar Creek. New drilling in the Sisar-Silverthread area produced 11 new wells in 1972, 14 new wells in 1973, 15 new wells in 1974, and approximately 17 new wells in 1975.

The project site is considered to be in an extreme fire hazard area. The Upper Ojai Valley in which it lies is characterized as a rural residential and agricultural community with an approximate population of 320 persons. There are residences approximately one-fourth mile from the proposed drilling site. The topography of the Upper Ojai Valley is hilly and mountainous terrain with slopes ranging from 10 percent to 40 percent. The area of the project site is approximately one-half mile south of the Las Padres National Forest and can be described as an undisturbed, natural chapparal. Sisar Creek is approximately 2,000 feet west and 4,000 feet south of the proposed site.

In addition, the project site is a wild life habitat wherein there is evidence of deer, coyote, 50 species of birds, black bear, mountain lion, gray fox, raccoon, bobcat, weasel, chipmunk, rabbit, gopher, mice, skunk, and native snakes and lizards. It is also within the flying area of the California condor.

Access to the site is via State Highway 150 to Koenigstein Road. It is necessary to travel through the City of Ojai or the City of Santa Paula to reach the project site. Highway 150 is a 24-foot wide, paved, two-lane roadway; there are curves along its path. Koenigstein Road is a 14-foot wide county road which intersects Highway 150. Oil drilling equipment and materials must be trucked in and out of the project site by way of Highway 150.

Upon the filing of the application for a CUP by Phoenix, the county's planning staff conducted an initial study of the proposed project and recommended preparation of a negative declaration, meaning that an environmental impact report (EIR) would not be required. On July 8, 1975, the county's Environmental Assessment Committee (EAC) reviewed the recommendation of the planning staff and concurred with their determination that a negative declaration would be sufficient. The county's Environmental Report Review Committee (ERRC) subsequently reviewed the EAC's determination as to the sufficiency of the negative declaration and, on August 6, 1975, the On November 21, 1975, S. H. Stewart, one of the petitioners herein, appealed the ERRC's decision, on an administrative level, to the county's Environmental Quality Advisory Committee (EQAC). On December 5, 1975, the EQAC upheld the ERRC's determination that the draft EIR for CUP-3543 was sufficient.

ERRC, in part due to substantial landowner protestations, found that the proposed project would have a substantial adverse effect on the environment and reversed the EAC's determination. As a result, an EIR was required to be prepared for the proposed project. The planning division staff thereafter prepared the draft EIR for CUP-3543 and submitted it to the ERRC. On November 12, 1975, the ERRC determined that the draft was sufficient.

On December 13, 1975, John Whitman, another of the petitioners herein, appealed the decision of the EQAC to the Board. On January 13, 1976, the Board found that the EIR for CUP-3543 was sufficient and denied the appeal.

Phoenix' application for CUP-3543 was ultimately approved by the Planning Commission at its March 4, 1976 meeting, subject to 59 conditions. Following a successful appeal to the Board by Phoenix of seven of the conditions, the Board, on April 27, 1976, granted CUP-3543. A "Notice of Determination" for CUP-3543 was filed with the county clerk on May 7, 1976.

Petitioners filed their action for extraordinary relief on June 4, 1976, seeking to have CUP-3543 set aside on the ground that its appendant EIR was inadequate, inaccurate, and insufficient. The trial court denied the relief sought and this appeal followed.

CONTENTIONS

Petitioners contend: (1) that the EIR for CUP-3543 does not comply with the requirements of the California Environmental Quality Act of 1970 (CEQA) (Pub.Resources Code, § 21000 et seq.) and the State EIR Guidelines (Cal.Admin.Code, tit. 14, § 15000 et seq., hereinafter cited as "Guidelines"); (2) that there was insufficient evidence and findings to support the granting of CUP-3543; (3) that the trial court erred by refusing to conduct a hearing or consider any objections, corrections or amendments to its proposed findings of fact and conclusions of law; and (4) that attorneys' fees should be allowed upon remand or reversal.

Phoenix controverts all of the above contentions. ²

DISCUSSION

As will be developed in the discussion which follows, we conclude that the EIR prepared for CUP-3543 is fatally deficient in its failure to adequately discuss the cumulative impacts on the environment associated with the proposed project. As we have determined that the case must be reversed and remanded for further proceedings in view of this defect, we will deal only briefly with the parties' other significant contentions and arguments.

We note preliminarily that under sections 21168 and 21168.5 of the Public Resources Code, which govern the scope of judicial review in cases coming under CEQA, the trial court does not exercise its independent judgment in reviewing the actions of the administrative agency; rather, the trial court's role is to determine whether the decision and findings of the agency are supported by substantial evidence. (See Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 193, 140 Cal.Rptr. 619; see also No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74-75, fn. 3, 118 Cal.Rptr. 34, 529 P.2d 66.) Since the trial court proceedings in the present case were conducted under the substantial evidence test, we must do likewise. (Mountain Defense League v. Board of Supervisors (1977) 65 Cal.App.3d 723, 728, 135 Cal.Rptr. 588; Neely v. California State Personnel Bd. (1965) 237 Cal.App.2d 487, 489, 47 Cal.Rptr. 64.)

I SUFFICIENCY OF THE EIR FOR CUP-3543

In enacting CEQA, our Legislature established a policy directed at the maintenance, development, and enhancement of a high quality environment for the people of this state. (Pub.Resources Code, §§ 21000, 21001.) Recognizing this to be the intent of the Legislature, our Supreme Court has declared that the provisions of CEQA should "be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 768, 502 P.2d 1049, 1056.)

At the heart of CEQA is the EIR requirement. (County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810, 108 Cal.Rptr. 377.) An EIR is defined in Public Resources Code section 21061 as "an informational document," the purpose of which "is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." ³

The Supreme Court has observed that an EIR also serves "to demonstrate to an apprehensive citizenry that the (responsible public) agency has in fact analyzed and considered the ecological implications of its action." (No Oil, Inc. 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 determine the environmental and economic values of their elected and appointed officials, thus, allowing for appropriate action come election day should a majority of the voters disagree." (People v. County of Kern (1974) 39 Cal.App.3d 830, 842, 115 Cal.Rptr. 67, 75.)

With the foregoing as background, we turn now to a discussion of petitioners' specific criticisms of the subject EIR.

1. Cumulative Impacts

The EIR prepared for CUP-3543 contains the following paragraph under the heading "Cumulative Impact":

"The cumulative impact (Sic ) associated...