Mountain Defense League v. Board of Supervisors

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). 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.) 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).

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 , 72 A.L.R.3d 973 ]). 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 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 1,000 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). 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 PDF 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). 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 noncontiguous development.^[4] To show their rights are vested the Defense League ánd Liridsley allege they have enjoyed the right to open space through hiking, camping and “simply viewing its pristine beauty.” They say this right will be

(Code Civ. Proc., § 1094.5; Bixby v. Pierno, supra, 4 Cal.3d 130 , 144). 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 property (some 650 acres) would be subject to a 20-year open space easement which would allow the public to use the property and at the end of 20 years the county would have an option to buy this acreage; the developer would engage in an accelerated reforestation program of that part of the property which was burned in 1972. This constitutes substantial evidence to support the Board’s decision.

The Defense League complains the Board did not make findings as required by Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506 ). There, the California Supreme Court concluded that an agency making a decision under Code of Civil Procedure section 1094.5 “. . . must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. If the Legislature had desired otherwise, it could have declared as a possible basis for issuing mandamus the absence of substantial evidence to support the administrative agency’s action. By focusing, instead, upon the relationships between evidence and findings and between findings and ultimate action, the Legislature sought to direct the reviewing court’s attention to the analytic route the administrative agency traveled from evidence to action. In so doing, we believe that the Legislature must have contemplated that the agency would reveal this route. Reference, in section 1094.5, to the reviewing court’s duty to compare the evidence and ultimate decision to ‘the findings’ (italics added) we believe leaves no room for the conclusion that the Legislature would have been content to have a reviewing court speculate as to the administrative agency’s basis for decision.” (Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 , 515 [ 113 Cal.Rptr. 836 , 522 P.2d 12 ].) However, these findings need not be formal and may be included as part of the agency’s order (Hadley v. City of Ontario, 43 Cal.App.3d 121 , 128 [ 117 Cal.Rptr. 513 ]). It is sufficient if they apprise “interested parties and the courts of the bases for the administrative action.” (San Francisco Ecology Center v. City and County of San Francisco, 48 Cal.App.3d 584 , 596 [ 122 Cal.Rptr. 100 ].) The Defense League claims appropriate findings were not made for the Board’s approval of the PDP or its amendment of the general plan.^[5] However, here the two decisions were made

simultaneously and under these circumstances only one set of findings is necessary if it covers all the requirements of both statutes. The Board made no formal findings and we look to the minutes and the resolution of approval for informal findings which will apprise us of the basis of its action. There are none. Although the raw evidence supports the decision of the Board, there is nothing to bridge the gap between the evidence and the Board’s resolution. The matter must be remanded for the Board to make the necessary findings to support its resolution (Hadley v. City of Ontario, supra, 43 Cal.App.3d 121 , 128-129; City of Fairchild v. Superior Court, 14 Cal.3d 768 , 779 [ 122 Cal.Rptr. 543 , 537 P.2d 375 ]).

The Defense League argues the amendment to the general plan was illegal. Government Code section 65300^[6] requires each city and county to adopt a general plan which should reflect the long-term general outline of projected development. It is, however, not a final document which is never to be changed, since amendments may be made when “in the public interest” (Gov. Code, § 65356.1). The Defense League maintains the amendment of the general plan through approval of PDP 72-10 was ad hoc, piecemeal, and frustrates and evades the requirement that the general plan be “comprehensive.” However, at the time this decision was made, December 5, 1973, there was no statute limiting the number of times the general plan could be amended.^[7] The fact the Legislature did not then place limitations on the frequency of amending the general plan and now permits it three times per year shows that the Legislature did not expect the county to view the general plan as a theoretical planning instrument which was to be reviewed only every couple of years. The fact the Legislature placed no limits on the acreage involved in an amendment, combined with its allowing unlimited amendments to the plan, shows it contemplated the procedure which the Defense League finds objectionable.

The Defense League questions the county’s policy of amending the general plan to accommodate a developer’s project. In other words, it contends the plan first should be amended and the developer then

should make his project consistent with it, rather than adopting the two simultaneously or approving the project first and then amending the general plan to be consistent with it. The problem of consistency arises because of the 1970 passage of Assembly Bill No. 1301 (Stats. 1971, ch. 1446) which requires that zoning (Gov. Code, § 65860) and subdivision maps (Gov. Code, § 66473.5) be consistent with the general plan. However, Assembly Bill No. 1301 did not take effect until after the decision in this case. In addition, ápproval of the PDP here did not entail a zoning change nor a subdivision map. Rather, the PDP serves as a specific plan (Gov. Code, § 65450 et seq.). Approval of the PDP is only the first of many approvals the developer must obtain before he begins construction.

The Defense League argues this amendment to the general plan is not “in the public interest” as required by Government Code section 65356.1.^[8] The application here did not require a change in zoning. However, it did necessitate a change in the general plan from permanent open space to rural residential which the League says contradicts the Legislature’s intent when it made open-space a mandatory element of the plan.^[9] However, the change in classification here means the approximately 1,000 acres which were privately owned and, thus, unavailable for public use will become about 400 acres reserved for

private use and 600 acres for public use. This increase in land which can be used by the public is in the “public interest.”^[10]

The Defense League also points to the Guidelines for Local General Plans State of California (Council on Intergovernmental Relations, Sept. 20, 1973) which states, “All proposed changes . . . [to the general plan] should be evaluated in regard to environmental impact and consistency with the balance of the document.” However, as the Defense League states, these guidelines are merely advisory and in no way mandatory. The amendment to the general plan was proper.

The Defense League questions the Board’s adoption of PDP 72-10 when there were adverse environmental effects set out in the EIR. It admits that nowhere in the CEQA are there express requirements that developmental plans, which have a negative impact on the environment, be rejected (San Francisco Ecology Center v. City and County of San Francisco, supra, 48 Cal.App.3d 584 , 589). However, it suggests that if such a project is to be approved, the Board should be required to support its decision with specific findings to show the potential economic and social benefits outweigh the environmental costs. The balancing of these considerations should be included in the findings required under Topanga Assn, for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506 ; see also People v. County of Kern, 39 Cal.App.3d 830 , 841-842 [ 115 Cal.Rptr. 67 ]).

The judgment is reversed and the trial court is directed to issue a writ of mandate ordering the Board of Supervisors of San Diego County to make findings in support of its resolution of December 5, 1973 consistent with the views expressed in this opinion.

Ault, J., and Cologne, J., concurred.

A petition for a rehearing was denied Januaiy 20, 1977, and appellants’ petition for a hearing by the Supreme Court was denied March 3, 1977.