Day v. City of Glendale

51 Cal. App. 3d 817, 124 Cal. Rptr. 569, 1975 Cal. App. LEXIS 1414

• Court: California Court of Appeal
• Decided: September 30, 1975
• Docket: Civ. 45720
• Status: Published

Opinions

Opinion

FLEMING, J.

John and Gertrude Day, residents of the City of Glendale, appeal the denial of a writ of mandate sought to compel respondent city to amend its environmental guidelines and require an environmental impact report as a condition for issuance of a grading permit to real-parties-in-interest Kirst-MacDonald-Hensler, a joint venture.

Real-parties-in-interest Hensler and MacDonald own 70 acres of undeveloped land in the San Raphael Hills of Glendale adjacent to the site of a proposed state highway. They joined with others to form the joint venture that won the state contract to construct the proposed highway. In March 1974 respondent City of Glendale issued a grading permit authorizing the joint venture to fill canyons on the Hensler and MacDonald land with 1,556,000 cubic yards of material to be excavated in the highway construction project. The permit also authorized grading and movement of 343,000 cubic yards of material to be cut from a ridge to form a notch—420 feet wide at the top, 70 feet wide at the bottom, and flanked by one-to-one grade slopes cut from 100 to 200 feet—which would permit the extension of an adjacent Glendale street into the leveled Hensler and MacDonald land.

Although city guidelines did not require preparation of an environmental impact report (EIR) for a grading permit, an EIR was presented with the application for the permit. In their petition the Days contended that the city guidelines should have required an EIR, that the submitted EIR inadequately evaluated the environmental significance of the grading project and of available alternatives, that the city allowed insufficient time for citizen comments on the EIR, and that it failed to independently evaluate the project, all in violation of the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21000¹ et seq.) CEQA applies to discretionary projects approved by public agencies but does not apply to ministerial projects of a similar nature (§ 21080). The trial court found that issuance of a grading permit was for a ministerial project and concluded that CEQA did not apply. The critical issue on appeal is whether issuance of the grading permit was for a discretionary or ministerial project within the meaning of CEQA.

CEQA does not define the term ministerial. Instead, section 21083 requires the Secretary of the Resources Agency to adopt guidelines for interpretation by public agencies of CEQA, guidelines which must include criteria for orderly evaluation of projects and for preparation of environmental impact reports consistent with CEQA. Section 21082 requires public agencies, in turn, to adopt their own guidelines and procedures consistent both with CEQA and the guidelines of the secretary.

At the time the city issued the grading permit, the Secretary of the Resources Agency had adopted the following guidelines (Cal. Admin. Code, tit. 14, div. 6):

“15073. Ministerial Projects. Ministerial projects are exempt from the requirements of CEQA, and no EIR is required. The determination of what is ‘ministerial’ can most appropriately be made by the particular public agency involved based upon its analysis of its own laws, and it is anticipated that each public agency will make such determination either as a part of its implementing regulations or on a case-by-case basis. It is further anticipated that the following actions will, in most cases, be ministerial in nature.

“(a) Issuance of building permits.

“(b) Issuance of business licenses.

“(c) Approval of final subdivision maps.

“(d) Approval of individual utility service connections and disconnections.

“In the absence of any discretionary provision contained in local ordinance, it shall be presumed that these four actions are ministerial. Each public agency may, in its implementing regulations or ordinances, provide an identification or itemization of its projects and actions which are deemed ministerial under the applicable laws and ordinances.” Glendale in turn adopted its own guidelines (Environmental Guidelines and Procedures of the City of Glendale):

“Section 10. Ministerial Projects.

“The following are ministerial projects under the ordinances of the City of Glendale and do not require the preparation of an EIR:

“A. Issuance of building permits.

“B. Issuance of business licenses.

“C. Approval of final subdivision maps.

“D. Approval of individual utility service connections and disconnections.

“E. Issuance of grading, Jill, and excavation permits.” (Italics added.)

Respondent and real-parties-in-interest contend that the state, through CEQA and its guidelines, has delegated to local agencies the prerogative to determine which projects are ministerial and hence exempt from the requirements of CEQA. Glendale, they argue, deems grading permits ministerial, and consequently CEQA does not apply. This argument, if valid, would eviscerate CEQA, a result clearly not intended by the Legislature. The applicability of CEQA cannot be made to depend upon the unfettered discretion of local agencies, for local agencies must act in accordance with state guidelines and the objectives of CEQA. Their actions must also reflect the stated intent of enabling legislation: “It is the intent of the Legislature that all agencies of the state government which regulate activities of private individuals, corporations, and public agencies which are found to affect the quality of the environment, shall regulate such activities so that major consideration is given to preventing environmental damage.” (§ 21000, subd. (g).)

But, it is argued, issuance of a grading permit was for a ministerial project in this instance, whether or not CEQA gives local agencies absolute power to determine which projects are ministerial. We do not agree. State guidelines implementing CEQA, in consonance with standard legal formulation (see Johnson v. State of California, 69 Cal.2d 782, 788 [73 Cal.Rptr. 240, 447 P.2d 352]; People v. Department of Housing and Community Development, 45 Cal.App.3d 185, 192 [119 Cal.Rptr. 266]) offer these definitions:

“15024. Discretionary Project. Discretionary project means an activity defined as a project which requires the exercise of judgment, deliberation, or decision on the part of the public agency or body in the process of approving or disapproving a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances or regulations.

“15032. Ministerial Projects. Ministerial projects as a general rule, include those activities defined as projects which are undertaken or approved by a governmental decision which a public officer or public agency makes upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority. With these projects, the officer or agency must act upon the given facts without regard to his own judgment or opinion concerning the propriety or wisdom of the act although the statute, ordinance, or regulation may require, in some degree, a construction of its language by the officer.”

The Glendale Municipal Code, chapter 23, governs the issuance of grading permits by the city engineer. The code imposes many technical and clearly ministerial requirements. But it also imposes many requirements that are discretionary. Important for our purposes are the following:

—after visual inspection of the grading site the city engineer may require submission of geological and soil reports with recommendations regarding the effect of geological and soil conditions on the proposed development, and those recommendations approved by the city engineer must be incorporated in the grading plan (§§ 23-15(b) and (c));

—the city engineer may impose regulations with respect to access routes to hillside grading projects “as he shall determine are required in the interest of safety precautions involving pedestrian or vehicular traffic” (§ 23-16(f));

—in granting the permit the city engineer must attach such conditions as may be necessary to prevent creation of hazard to public or private property (§ 23-16(g)(5));

—and if the city engineer determines that the land area for which grading is proposed is subject to geological or flood hazard to the extent that no reasonable amount of corrective work can eliminate or sufficiently reduce the hazard to persons or property, he must deny the grading permit (§ 23-18).

The foregoing, patently, are discretionary items without fixed standards or objective measurements and require the exercise of judgment, deliberation, and decision by the city engineer. At bench, the city engineer did exercise his discretion by attaching numerous conditions to the issuance of the grading permit.

CEQA must be interpreted to afford the fullest possible protection to the environment within the reasonable scope of statutory language. (Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247, 259 [104 Cal.Rptr. 761, 502 P.2d 1049].) A project of mixed ministerial-discretionary character, as was the grading permit here, should be treated as a discretionary project. As was said in People v. Department of Housing and Community Development, 45 Cal.App.3d 185, 194 [119 Cal.Rptr. 266], “. . . . CEQA draws a line between purely ministerial and entirely discretionaiy projects but does not mention those having both characteristics. Statutoiy policy, not semantics, forms the standard for segregating discretionary from ministerial functions .... CEQA is to be interpreted to ‘ “afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” ’ ... So construed, section 21080 extends CEQA’s scope to hybrid projects of a mixed ministerial-discretionary character; doubt whether a project is ministerial or discretionary should be resolved in favor of the latter characterization.”

Moreover, the discretionary-ministerial designation of a project is not necessarily determinative of its environmental impact. We do not believe the Legislature intended to exclude from the ambit of CEQA any project involving, as here, cut, movement, and fill of massive sections of earth. All parties agree that the grading project will have a significant effect on the environment. The issuance of the grading permit is the only point at which the environmental impact of the project may be publicly considered before mountains are moved and 70 acres of canyon are filled.

We note that appellants did not request a stay pending determination of this appeal, and we recognize that appropriate remedies to correct substantial error and abuse of discretion may be limited by physical realities. Yet even if the grading project planned by real parties in interest has been entirely completed, the cause must be remanded to the trial court for resolution of appellants’ objections to the content of the EIR and their objections to Glendale’s guidelines. Under the provisions of CEQA those affected by this major land-moving project are entitled to a full review of its environmental impact.

The judgment is reversed, and the cause is remanded for further proceedings in accordance with this opinion.

Roth, P. J., concurred.

1 All further statutory references are to the Public Resources Code.