Friends of Mammoth v. Board of Supervisors

Sept. No. 7924. In Bank. [Sac. 1972.] al., OF et

FRIENDS MAMMOTH Plaintiffs Appellants, al., OF BOARD SUPERVISORS OF MONO COUNTY et Defendants and Respondents; LTD., RECREATION,

INTERNATIONAL Party

Real Interest Respondent.

Counsel John C. & and McCarthy and Henrie for Plaintiffs McCarthy Young, Appellants. J. General,

Evelle and Louise H. Renne Nicholas C. Attorney Younger, General, Yost, Hall, Jr., W. John Deputy Attorneys R. Carlyle Phillips, Laws, and Sutherland, Sandy J. Edd Challiss P. Beatrice Steppe Frederic and Curiae on behalf Plaintiffs Amici Appellants. English Denton, District M. Assistant Attorney, Kennedy, Edward District David N. Moskovitz, Moskovitz, Girard, Kronick, Tiedemann & Attorney, Adolph for and Clifford W. Schulz Defendants Respondents. E. Robert Murphy Jr., E. Marean Ames & R. Reaves Gray, Cary, Frye, Browning Elledge, for Real in Interest Party Respondent. III Opinion

MOSK, J. This caseaffords us the first to construe opportunity provisions (Pub. (EQA). Re- Environmental Act of California Quality Code, 21000-21151.)1 intent forth- As the sources express §§ declares, a in the to be milestone rightly designed campaign state for “maintenance environment for this quality people (a).) . (§ now and in the future . . .” subd. The specific question here is whether a submit body presented municipal required (see §21100) to section 21151 impact report pursuant building a conditional use or permit. code before issues Recreation, (International) Ltd. International Real interest. party filed an conditional use application April (Commission). The defendant Mono Commission County Planning appli- structures multi-story cation described the use as “Two follows: proposed 1, 2, 3, 4 condo- bedroom condominiums plus studio-type housing miniums, sale. With All for restaurant shops. proposed specialty use refers and recreational facilities.” The ample permit report parking acres, 1,775 from feet feet. It appears a 5.5 by parcel approximately a each with the record that some six buildings eventually contemplated narrow and relatively six to stories. Thus a height eight long from is structure or in close proposed. structures proximity series 6,May Thereupon the use on 1971. The Commission permit approved 21, members of both on Schaeffer and Richard May Young, Frederick II, two with E. Griffin along Charles' class represented plaintiff individuals, to defendant Mono decision other the Commission’s appealed af- the Board (Board). On Board of June County Supervisors the use firmed issuance of permit.

1All code are to the Public Resources Code unless otherwise indicated. references Friends Mammoth2 and Griffin filed July On plaintiffs petition for writ of administrative with the Court of attacking mandamus Appeal denied the writ without of the On court validity permit. July On court. filing July prejudice proceedings superior filed identical with the Mono Court. County Superior plaintiffs petition The writ denied and the activities of Inter- We stayed plaintiffs appeal. for which national the conditional use permit subsequent building were issued permit our of the matter. pending disposition

I Mono is County situated in eastern California and is bordered on the east the State of The Nevada. on the west boundary generally follows of the crest Sierra Nevada range. mountain The county is primarily land, 5,000 mountainous almost all above feet. It Cali- open range 4,016 fornia’s third smallest county people. Although population historically county oriented to the of cattle and economy ranching, sheep lakes, nature’s mountains, streams, bountiful gifts majestic trees and wildlife have in the area one of the nation’s most produced spectacularly beautiful and treasures. comparatively unspoiled Lakes, the

Mammoth section of Mono County involved immediately action, 2,100 in this consists of some acres of land surrounded Inyo National Forest. Plaintiffs assert that acute water and sewage problems will be created if International to construct its permitted proposed condominium Additional complex. matters of include concern snow re- moval, and the diminution police protection space general. open filed Documents with defendant Commission to its decision prior indicate that the Commission have considered in the effect of the general construction traffic, character and value of surrounding property, facilities, water removal, snow fire sewage and police protection. EQA legal that arises is whether principal question applies activities for which a or other similar entitlement is required. ventilated, This issue has been the named not but also only by parties General and the Attorney Sierra Club as amici curiae. Defendants and International contend that even if their does interpretation should be denied relief other prevail, for reasons. Plaintiffs plaintiffs likewise assert additional aside the use and grounds setting building In view the initial inherent in the consideration permits. judicial EQA, we turn first to that issue. 2Friends of unincorporated Mammoth is described “an association of hundreds resident and nonresident owners of lots or mountain at Mammoth residences Lakes, County, Mono California.”

254

II more government in and out recognition problem Though is not entirely our environment concern over violation of today, pervasive described Justice Holmes ago decades Four contemporary phenomenon. a necessity It offers as “more than it a treasure. amenity, river (New those who have over it.” power life that must rationed among 1106, 1104, 336, v. York 342 Jersey (1931) New 283 U.S. L.Ed. [75 478].) court high 51 S.Ct. Five Justice years ago Douglas spoke that is not the issue the Federal Power Commission in admonishing will be the licensee .... The test is “whether the beneficial to project reaches will be in the interest ... whether project preserving of wildlife.” . . and the of wild rivers and wilderness areas . protection 869, 883, 428, (1967) 87 S.Ct. (Udall v. FPC U.S. 450 L.Ed.2d 387 [18 “to 1712].) a circuit court statutes attesting More discussed recently, control, last, at the destructive commitment the Government long ” held, is to assure judiciary, material duty engine ‘progress.’ halls, are environment heralded in legislative important purposes, of administrative lost in the vast hallways bureaucracy. not or misdirected (1971) v. United A. E. Com'n 449 (Calvert Com. States Coord. Cliffs' 33].) 1109, interest involved in 1111 The public F.2d App.D.C. [146 (Environmental action need not economic. to administrative challenge Fund, (1970) F.2d v. Hardin 428 1097 Incorporated [138 Defense 391].) App.D.C. ethic was the Supreme the ecology recent declaration on The most U.S. L.Ed.2d in Sierra Club Morton 405 727 [31 Court decision maintain decided on an issue of standing S.Ct. Though 1361]. action, on environmental dissenting protection opinions agreed majority “Aesthetic and environ- wrote for the majority: Justice Stewart principles. ingredients economic well-being, important mental like well-being, environmental the fact that of life in our society, particular the quality them few does make rather than the interests are shared many (405 U.S. through judicial process.” of legal protection less deserving 1366].) dissenting at at 92 S.Ct. p. at L.Ed.2d p. p. [31 that, reaching law prevented Blackmun decried rigidity Justice wide, and disturbing of a growing, involving “significant aspects issues environment deteriorating is, the world’s the Nation’s problem, L.Ed.2d at (405 U.S. [31 disurbances.” p. with its resulting ecological 1376].) at S.Ct. at p. p. state various ofAct Quality requires Environmental

California’s reports submit entities to and local governmental and local state These reports compel activity. before undertaking specified environ- adverse consequences to consider possible %5§ ment and record activity such In an writing. proposed impact era of commercial industrial in which the has environment expansion been violated those who are repeatedly oblivious ecological well-being society, significance of this act cannot be legislative forth, understated. As section clearly subdivision sets (g), “governmental at all levels to consider factors requires qualitative as well as economic technical factors and benefits costs long-term and to consider alternatives to actions affecting the proposed environ- ment.”

Pursuant to section the environmental impact reports required the act must set forth the information: following “(a) The impact environmental action. proposed “(b) adverse Any environmental effects which be avoided cannot if is implemented. proposal “(c) Mitigation measures minimize impact. proposed “(d) Alternatives to the action. proposed short-term,

“(e) The between local uses man’s environ- relationship and the ment maintenance and enhancement of productivity. long-term “(f) Any irreversible would be involved which changes in the action it be should proposed implemented.”

Under section “state reports required agencies, commissions”; boards section 21101 similar information requires comments”; to federal regard “on which the state projects officially section 21102 a before state requires impact report agency requests funds; certain section 21105 state a official must include provides “the used review report part regular existing project report and budgetary sections 21150 and 21151 Finally local process,” require entities governmental to submit environmental prior impact reports certain state or funds or in various activities. receiving federal engaging hand, at Section involved the case states: specific provision “The bodies of all and counties which have an cities officially conservation shall adopted element make a finding general plan out, intend have a any effect project they carry may significant environment, on the accord with the conservation element of the general All other local shall make an environ- plan. governmental agencies mental carry intend to out which report project have significant effect on environment and shall it to the submit local appropriate planning agency part required by Section 65402 of Government Code.”

Mono does not have a conservation element of County yet Thus, the first sentence of section 21151 does general plan. apply. if the second covers the issuance of a does Only provision turns on mandate of the act here. This determination govern necessarily used whether the term in section 21151 includes private “project” for which a is activity government permit necessary. act in the is that nowhere

We our inquiry noting “project” begin Coastal The Ventura-Los Mountain and Angeles Study defined. (Compare Act, Code, at 22000 et enacted Pub. Resources seq., § Commission Act, ch. 2 of which sets forth as the Environmental same time Quality therein.) of the failure of the of used Because Leg definitions terms on a of we must islature to delineate the expressly rely meaning “project,” “a of construction: that absent statutory single meaning cardinal principle required face, its we are it an of the statute give interpreta apparent (Benor with which it was based intent tion upon passed.” Examiners Cal. Medical 546-547 [87 Board Cal.App.3d den.).) Rptr. (hg. 415] been be considerably this our task has instance simplified in sections set forth its intent

cause the has Legislature expressly intent” two “Legislative of the act. These provisions, captioned intent,” than 14 references to contain no less and “Additional legislative the- current of the en deterioration of the Legislature concern subds. An (See (a)-(g).) (a)-(g); subds. vironment. § § the ineluctable conclusion these sections leads to reading analytical act’s to include within the intended Legislature panoply entitle lease or other which permit, activities for provisions private is necessary. ment in section intent can be found clearest manifestation of this

The that all intent of the Legislature which “It is the (g), provides: subdivision indi- regulate activities government private of the state viduals, which are found to affect and public agencies corporations, con- environment, regulate major such so that shall activities quality added.) (Italics damage.” given sideration is preventing (See regulate in this subdivision. is the verb significant It employed 21107.) that the concern the Legislature use demonstrates also Its to activities which proprie- not limited solely government performs desired to ensure that Instead the Legislature tary capacity. apparently regulatory function would determine that entities their governmental ecological cognizance individuals were not forsaking pursuit private which a One the most common means by govern- economic advantage. activity denial regulates through granting ment agency a permit. also evidenced concern for Legislature strong promulgation which could be included in regularly

standards environmental needs 21001, (f) (See the and Because of (g).) subds. decision-making process. the entities in of it involvement the regular permits issuance public at would all levels to “governmental agencies appear requiring develop standards to necessary and environmental procedures protect quality” 21001, (§ (f)) subd. situations which the only includes necessarily construction, itself or other government engages develop- acquisition ment, but also those which the regulates instances in state activity. private EQA

Other likewise conclusion that the provisions support intended to include as a Legislature govern- permit-issuing process for mental which an environmental activity is For required. 21000, (e), “Every section subdivision a re- states: has example, citizen to sponsibility* contribute and enhancement of preservation (Italics added.) environment.” Such never be exercised responsibility EQA if the is to only to activities in which the government directly is apply “Every citizen” engaged. is an unmistakable reference to individuals private as distinguished from government (f) officials. Subdivision sec- same tion “The and provides: in the policies interrelationship practices management of natural resources and waste disposal systematic requires and concerted public private efforts interests to enhance environ- mental and to control quality (Italics added.) environmental pollution.” 21001, Finally, section (d), subdivision “Ensure provides: long- term protection environment shall criterion in guiding (Italics added.) decisions.” The reference in section subdivision (f), to “private interests” with the decisions” coupled “public phrase section (d), subdivision as within the act the contemplates decision of a public agency grant or deny interests private opportunity in enumerated engage activities. view what a to be clear mandate that the appears a broad given construction and that it actions for which apply private we note necessary, that the author of permit parenthetically principal on, EQA, Knox, Assemblyman John T. record such as supporting declaration, in a interpretation. legislator, sworn states that

authoring the bill and it “was guiding through intent Legislature my that the of an extend requirement impact report lease, situation where or state local funding public agency by permit, for entitlement use was comparable facilitating a authorizing private as was undertaking long there a significant impact the environ- upon use conditional zoning changes, such includes situations This ment. legisla- to other this intent I communicated building permits. permits (Declaration John . .” . . of the legislative process the course tors in brief, C.) Knox, appendix T. Feb. plaintiffs’ opening of the Knox the significance to rebut International seek Defendants V. Carley Porter Assemblyman a declaration offering declaration activities for act does not apply that the which he opines 11, 1972, Porter, V. (Declaration Carley Apr. necessary. curiae; also see Interim amici to briefs of to defendants’ answer appendix Impact of Environmental Evaluation Preparation Guidelines Of Act of Environmental Quality Under California Statements 28, 1972).) (draft for Resources fice of the Secretary Apr. intent fortifies contradictory legislative

That two legislators report of individual members statements made by reticence to on rely judicial (See intent the entire body. an of the of Legislature expression the 873, 1, P.2d Cal.Rptr. v. Anderson 484 Ballard Cal.3d [95 591, Optometry (1965) 235 Board 1345]; Cal.App.2d Rich State den.).) aids to determine legis- Other extrinsic (hg. Cal.Rptr. 512] [45 intent are more generally persuasive. lative a former con also submit a statement by

Defendants International Quality. Environmental sultant the Select Committee on to Assembly consultant, Jones, it his only L. conceded that was “impression” Robert EQA undertaken directly by governmental that the was limited to activities before Senate Committee on Natural of Robert L. Jones (Testimony bodies. Qual Wildlife, the on the Administration of Environmental Resources and 16, 1970, 3-5.)3 Acts, sig at More and Related Dec. pp. Act of ity which, for an nificant, he is the to his remarks defers perhaps, preface or the the act to “the Legislative interpretation [Counsel] authoritative the (Id. 2.) extrajudicial at To conflict General.” Attorney compound p. that the act does has taken the General Attorney position opinions, the California, In General of State (Attorney to activity apply private of Environ and Evaluation re Guidelines for the Proposed Preparation Quality California Environmental mental Statements under the Impact EQA it was his view that subsequent 3In a letter Jones first indicated that however, stated, “In the He “probably” apply .private did to activities. further however, number], two sections there policy section of AB 2045 act’s bill [the of environmental on certainly policy application that indicate 21000(g) second is Section and the first is Section private studies land. The that all can be inferred together, I believe it Considering these two sections 21107. responsible regulate private activities are agencies, who boards commissions state (Letter out.” are carried these activities when insuring protection for Porter, Carley Nov. V. F. Schabarum Jones to Hon. Peter Robert L. from 1971.) 9; State of filed at amicus brief of the California Act of curiae p. that herein, has concluded 15-26) Legislative at Counsel whereas the pp. Counsel, Hon. (letter does not H. George Legislative from Murphy, Porter, answer briefs V. to defendants’ Nov. Carley appendix curiae, observe, 3). however, cursory that three-page amici exh. We analysis was not designed letter Counsel Legislative in-depth and brief which to Attorney included in the General’s type petition number some 60 gether pages. must, intent, conflict on we we conclude that resolving such, as to afford intended manner

Legislature interpreted the fullest environment reasonable within possible protection We also conclude that achieve scope statutory language.

maximum intended to include within protection Legislature necessarily act, for activities operation government or other use is necessary. entitlement

III Defendants and International contend notwithstanding act, broad language of the the Legislature did not effectuate this avowed intent in section 21151. to the use They word point “project” the [i.e., clause that follows local it—“they governmental intend agencies] to carry out.” Defendants and International maintain this context “project” is coterminous with works.” “public EQA

As noted not previously, does to define attempt “project.” Because the intent legislative dictate we provisions a broad inter give to the pretation act’s we operative language, from that begin vantage point. Once a particular ascertained, intent has been legislative it must “ be given effect ‘even it though may be consistent strict letter ” (Dickey statute.’ v. Raisin (1944) Proration Zone No. 1 Cal.2d 24 796, 505, 802 P.2d 324].) 157 A.L.R. [151 As we stated nearly half 605, in In re century (1925) Haines ago 195 Cal. 613 P. [234 883]: “ ‘The mere literal of construction a section in a ought statute not to pre vail if is to the intention of the opposed the stat apparent legislature ute; and if the words are flexible con sufficiently to admit of some other be struction it is to to effectuate that intention. The intent adopted prevails letter, will, over the and the letter if be so read to conform possible, ” of act.' spirit

Our task then is to determine whether the word “project” flexible” “sufficiently so as to effectuate the broad intent that activities should be within the brought ambit of the act. We may course, not, (See of an unreasonable give construction to statute. Cedars

260 729, A. Hosp. County v. L. (1950) Lebanon Cal.2d 735 [221 (1948) 31]; Dept. Motor Ind. Acc. Vehicles 83 Cal. P.2d Com. 671, 730].) P.2d App.2d [189 our task been made has difficult both

In interpreting “project" definition of word the use and similar dictionary “project" . or . . design terms in the act itself. Webster defines a “plan project ed. (Webster's (3d . . . . . . New Internat. Dict. scheme proposal 1813.) 1961) Such little aid. Further synonyms provide interpretative p. (see, the act itself e.g., more refers to in some instances “projects” 21100, 21150, other 21151) to and. “actions” §§ “proposals" (see, 21100, (a), neat (b), (d), (f)), instances no e.g., subds. devising § which the several similar terms. categories place mind, ex rel. People With we resort the rule declared in this in 543- Bay Emeryville S. etc. Com. v. Town Cal.2d F. be “which must ap 446 P.2d A principle 790]: Cal.Rptr. [72 "the word is that legislative usage ‘project,’ plied analyzing the evil be achieved a statute as well as sought pre objective where vented consideration prime interpretation, [the word’s] one one meaning, word of common has more than usage even though attain the statute should will best purposes adopted, especially word is restricted enlarged ordinary meaning ’’ Since nei to prevent injustice.’ in order avoid absurdity a tool us with itself nor provides ther definition dictionary Environmental we National to use in turn “project” interpreting Act et (42 seq.) guidance. U.S.C. Policy The National (NEPA) Environmental Act into Policy signed law January 1970. Interim written the President’s Coun guidelines (35 cil on Environmental were Quality 1970. promulgated April 7390.) Fed.Reg. the final federal on (They superseded guidelines were EQA 23, (36 7724).) 1971 the Legisla was April Fed.Reg. passed Sess.) 21, ture at August (1970 Reg. on 1970 Final Calendar (Assembly p. 637), 18, (id.). Not and was the Governor on 1970 signed by September and tend to does the titles of the two acts indicate timing only EQA act, was the two federal key patterned provision acts, U.S.C. same. 42 (Compare is the report, 21100; 4332, Code, see also Pub. (2)(C) subd. with Resources § Pub. § 21150, Indeed, 21102, 21151.) Code, 21101, 21105, Resources much §§ EQA or is of the of the verbatim from is either phraseology adopted ob- one has the federal act.'4 As commentator clearly patterned upon Code, (a), § 21100, 4332 § 42 4Compare Resources and U.S.C. Pub. subd. (2) 21100, (b), (C) (i); Code, § § Pub. Resources subd. and U.S.C. EQA served, the (Powell, “much like Federal NEPA.” The Courts 218.) (1972) Protectors 215, Environment 47 L.A. Bull. Bar EQA, in Accordingly, construing in the “project” the definition that word federal act relevant. regulations becomes It is sig note, nificant this the Court of regard, for the District of Appeals Columbia has that in the federal act emphasized construing judicial role active and that the (See NEPA must Cal interpreted broadly. vert Com'n, Coord. Com. v. United A. E. supra, States F.2d Cliffs' 1109, 1111.) This is consonant the mandate of California Leg EQA islature that the a liberal given construction. NEPA,

Section of the the act’s substantive principal provision, uses the 4332, word “action” (42 U.S.C. subd. opposed “project.” § (C).) The Council on Environmental first defined Quality “action” the interim it issued some guidelines four months to the enactment prior EQA. view acts, of the between the federal and similarity state was aware Legislature obviously federal definitions when the (Cf. Bill passed. Assem. a bill which add § would Code, § 21109 Pub. 1972.) Resources introduced. Mar. Accord- ingly, definitions the Council on Environmental promulgated Quality helpful California understanding use subsequent word The interim “project.” guidelines, sig- without ultimately adopted nificant insofar as relevant here the final change guidelines, provide the following:

“5. .. Actions included. .

“(a) ‘Actions’ include but not limited to: “(i) relating appro- Recommendations or reports legislation priations; activities;

“(ii) Projects continuing

“— agencies; undertaken Federal Directly

“— contracts, or in Federal through whole grants, Supported part assistance; subsidies, loans or other forms funding (2) (C) (ii); Code, (C) 4332(2) (d), § 42 U.S.C. Pub. Resources subd. Code, (iv); (iii); § 21100, (e), 4332(2) (C) § Pub. and Resources subd. 42 U.S.C. § 21100, Code, (f), 4332(2)(C)(v); § Pub. subd. and 42 U.S.C. Resources Code, (e), 4331(c); Pub. § subd. Re § Resources and U.S.C. Pub. Code, Code, § 21001, (e), § 4321; sources and subd. 42 U.S.C. Pub. Resources § 21001, (f) 4332(2) (B) (2) (D); (g), § and 42 Pub. subds. U.S.C. Code, 4332(2) (C); § §§ Resources 21104 and 21105 and 42 U.S.C. Pub. Resources Code, § § 4333. 21107 and U.S.C.

“— n lease, license, a Federal certificate other en- or permit, Involving use; titlement for 7391;

“(in) (35 see Policy—and Fed.Reg. procedure-making.” 7724, 7725.) also 36 Fed.Reg. EQA though “actions” is broader than even “projects,”

Arguably However, the two in section 21100.5 tends use words interchangeably “actions,” is divided into the federal guidelines, is crucial that under a It one which is is under “projects” three categories, “projects.” certificate, license, en- “lease, or other subclass of “actions” that permit, titlement for use” is included.6 and the that both acts fact

In view of the between two relationship that the word it is manifest broad subject judicial interpretation, in provisions as used in section and other “project” other entitlements. cludes issuance of leases and permits, Accord were to consider we in the case at bar defendants required hold that ingly, have a significant “may whether the construction condominium proposed so, and, 21151; 9, infra) if (§ see fn. pre effect on the environment" to the decision to prior grant an environmental pare impact report County Planning Board Greene (Cf. conditional use and building permits. 412, 418-421.) (2d 1972) F.2d Power Cir. Federal Com'n IV Defendants and International contend that since is followed “project” out,” intend can be in phrase “they carry only section 21151 out,” to a be carried works “to terpreted referring public type project i.e., However, constructed, acquired developed, government. having word to include interpreted broadly private activity “project” is certainly which necessary, granting denying permit Accord an act which a “carries out.” governmental authority we that before construe the to mean following only ingly, “project” phrase becomes must an environmental government impact required report any any following requires that be included “in 5Section 21100 shall project (a) pro carry environmental propose out . . .: (f) (d) Any . . posed proposed . action. . [II] action. . . Alternatives [i] changes action proposed irreversible which would be involved in (See (g).) (Italics added.) implemented.” it be also subd. should continuing ac category actually “projects 6We note that the second titled of which is appear to to activities the duration apply tivities.” The former would might settled, con relatively appears to cover those activities whereas the latter subcategories two period unknown of time. The differences between tinue for some do not activities. distinction between involve either direct link with the activity, by have some minimal proprietary ***7 activity.* private or by regulating, funding interest permitting, Moreover, the to limit of the to what are essen- operation solely works would tially public frustrate the effectiveness of act. projects It is that undisputed Legislature intended that environmental consid- erations role significant (see play governmental decision-making 21000, 21001) and an § § that such intent not be by effectuated vague or assurances illusory state and local entities that the effect of a on the project environment had been “taken into consideration.”8 To read intend to “project they out"—the cornerstone of of the carry act’s many pro- visions—as limited to works would public render projects meaningless much of the legislative intent sections that contemplate regulation private activity, for none of the act’s other substantive more clearly provisions relate to actions. all private And to exclude from activity being private covered act would be inconsistent with the broad intent therein. More if appearing activities for which specifically, private activity by a public agency vividly can 7Regulation be more seen as a project agency which the “carry intends to out" in those agency instances which the regulatory maintains project control throughout (Cf. over the Orange its lifetime. County Air Pollution Control Dist. v. Public Util. Com. Cal.3d Cal.Rptr. 1361].) [95 484 P.2d 8The fact that defendants in the allegedly instant action considered the effect of traffic, proposed on construction surrounding character and value of property, sewage facilities, and water police and protection, fire ecology snow removal general, not, term, does sense “substantially comply” en with the requirements vironmental report requirements. Whether on different facts the be this act can satisfied substantial rather compliance question than literal is a we do not here reach. impact report prepared The specially must be govern- in written form before the entity mental makes give its decision. will This members of the and other parties concerned opportunity provide making input report both in the based, governmental in the ultimate decision in part, report. on that course, report, satisfy The must For elements set in section 21100. forth (b) example, cannot requires subdivision “[a]ny adverse environmental effects which be avoided proposal implemented” report. if the be included There requirement “significant” no that these adverse effects be before considered (c) (d) mitigation are to be al- require listed. Subdivisions measures and proposed Obviously consequences ternatives to the to the be action considered. if the adverse available, mitigated, environment can be or if feasible alternatives are making proposed activity, permit, approved. such as issuance not be should generalities, be aphorisms these must concepts, determinations concrete mere “[a]ny Finally, (f) entity in the requires the to include considered. subdivision changes proposed be action which would involved in irreversible environmental (b), requirement that implemented.” is no these should it be changes As in subdivision there report. “significant” they are to included in the before be assessed therefore, analysis the effect substantially greater report, is to contain mitigation devices activity possible proposed the environment and achieved by a naked through testimony followed simply than can alternatives project. not be the environment will harmed conclusion that act, the projects from operation were exempted

is required be if covered only would consequences deleterious ecological admittedly undertaken construction, by were or other development acquisition en- allowed same authority private but not if the authority governmental such inter- The incongruity in identical activity. to engage terprise Mono, as counties, such in less be most vivid populous would pretation in mas- never engage might because limited economic capabilities environment, but significantly affecting sive works projects public ' funding licensing, partially could achieve the same by result permitting, activities. defend- advanced the paradoxical position To further demonstrate counties in which International, populated ants generally sparsely and burden the financial less because of works likely projects massive public and most wildlife natural resources are the with significant counties counties, and and small act to large While the need of applies protection. afforded alike, certainly protection areas to and rural urban EQA be most an area where it diminished substantially would works to cover projects. to only if the were needed act interpreted Defendants, nevertheless, assert that the legislative history indicates the word does not the issuance of a “project” apply per- mit. cite 2045, They original AB in the language introduced time, on Assembly At that have April 1970. 21151 would section local program for applied governmental ... any “[a]ll carried out (Italics added.) them.” on An 26 made May amendment the bill more three specific, setting classifications local up governmental (1) entities: the legislative of all and body cities counties with conserva- tion element of a. general (2) local units without plan; governmental element; conservation all other local governmental agencies. “for language carried out them” for all three program was retained categories for grammatical minor except changes.

A the Senate August amendment introduced in subsequent act for making between the three distinguished categories by operative zoning intend to change in project they for “any one entities group project out”; carry for intend and for two entities carry “any group out”; carry program they three the intend retaining “any yet group added.) section 21151 (Italics out” wording. August On proposed the second altogether this time again, eliminating amended once zoning” “change provisions category; separating “project” one; into sentences instead changing “pro- first two category amendment, on The final August third category “project.” gram” retained “change zoning” sentence 20, deleted the pertaining above groups for the categories designated requirement “project" not It with this and reinstituted. was category one three. second that law. the bill became language enroute to enact- changes

It is that these intricate semantic final possible the amending were not insist that ment without Defendants significance. do the has been a one. We aside narrowing agree. Leaving not process alterations, we several note in the was from intermediate essence change to It be said that the former entails more fairly “program” “project." de- and similar that general to planning, procedure-making, policy (Sec 7390, 7391, the 5(a)(iii); scribed guidelines. NEPA Fed.Reg. 7724, 5(a)(iii), supra.) see also 36 both Fed.Reg. Conversely, “project” to the activities to appears emphasize culminating physical changes environment, which were changes Legislature. interest to paramount (Cf. 21102.) It that the § its amendments to As- appears Legislature Bill influenced sembly by 2045 was the issuance federal interim guidelines to introduction of Bill 2045 published subsequent Assembly to but its final Those used the word prior passage. guidelines “project” intended, rather than Thus to have Legislature “program.” appears confusion, order to to use the same broad prevent terminology effect under federal law rather than to an entirely different set of adopt phrases of its own.

International next that insists section 21151 does to apply private activity because of its clause that local to submit an en- requires agencies vironmental “to impact report local appropriate planning agency of the part report Section 65402 the Government Code.” required Section counties, that provides agencies cities local shall submit to report planning agencies to pursuant of real proposed acquisition or construction of property so a de- public buildings structures that termination can made as to whether the consistent with proposal their general (See respective Code, Gov. 65100 et plans. seq., especially 65350-65402.) It §§ is contended that since the Government Code provi- sion applies only entities, to development acquisition by municipal would be illogical activities to be require impact report private filed in conjunction with some on a mythical works project. Accordingly, they section 21151 must argue, apply only type public works projects Government Code contemplated by section 65402 and not to private activity for which a is necessary. permit

The reading International elevates what proposed appears simply directory measure to far greater than is significance warranted. We have reviewed the broad intent of the and the close Both compel act and federal NEPA. between that relationship are issuance of involving activities conclusion EQA. of these planning The use reports scope within secondary section 65402 in Government Code mentioned agencies govern- which is to local section compel purpose principal record the environmental implications proposed study ments frus- cannot be acted This broad activities before upon. purpose details filing reports. trated by surrounding procedural statements all impact The NEPA provides prepared copies available on En are to be made various federal Council others, and must “accompany proposal vironmental Quality, among (42 U.S.C. review existing through agency processes.” EQA and Research directs the Office of (2)(C).) Planning The similarly criteria, and to to “coordinate the of objectives, procedures development of environmental impact evaluation assure orderly preparation 21103.) act also consultation with (§ . . . .” requires reports 21103, 21104) and directs the (§§ impact entities various governmental in used part regular included “as project report reports (§ 21105). review and existing budgetary process” NEPA, in the directory On the basis of similar provisions be sub- that environmental reports the command in impact section section 65402 of the Government Code mitted with the reports required Instead, of the section. it is an meant to limit the breadth attempt not in to into integrate any existing such reports reporting procedure impact Accordingly, confusion and cost. order avoid unnecessaiy duplication, be filed Code section 65402 must report for which projects Government an such as must also contain environmental Those report. projects, here, must necessary, for which section 65402 involved no pursuant nonetheless an environmental preceded impact report section 21151.9 9“Statutes,” Shirey (1959) United v. 395 U.S. wrote Justice Frankfurter States 746], literary “are not inert exercises L.Ed.2d S.Ct. [3 general They government, construing ‘the composition. and in them are instruments of grammar meaning any is a aid than rule which purpose important more logic an enact purpose lay down.’ This is so because formal [Citation.] always though pedantically expressed is not in its words even ment is embedded art as “the Judge interpretation of statutes

words.” Learned Hand described (2d Corp. (Brooklyn Int. Rev. Cir. Nat. Commissioner proliferating purpose.” 1946) 450, 451.) 157 F.2d exercise, do, leaning indulge an inert cannot, have us respondents would We legis- remaining express oblivious to the phrases and heavily words and on isolated impressed blight. are we against Nor society protect lative intent 1972, long after March of legislative introduced in significance proposals with this amendments instituted, post here the facto since and the lawsuit permit was issued declared, we have “project” which only express interpretation “major actions." expand beyond “projects” apply the act to but

V Environ- Aside from construction question proper we Act the other contentions to which Quality mental make several parties now turn. did

Defendants and International first assert that not properly plaintiffs exhaust relief. prior their administrative remedies Sec- judicial seeking 1209 of the Ordinance “B. County Any tion Mono Zoning provides: interested . . . not decision satisfied Commission person ., use . . . within fifteen . . may, days appeal to the Board writing Neither Friends of Mam- Supervisors].” [of plaintiff moth nor filed Griffin An plaintiff section 1209. appeal pursuant Schaeffer, was filed individuals Frederick Richard appeal Young, Donald J. H. in the LaCasse Robert all owners Meyer, property Mammoth Lakes area. allege

Plaintiffs that Messrs. Schaeffer and Young members the class Griffin class represented by in this action. Defendants plaintiff and International do not controvert this Instead allegation. they argue and, Griffin, of Friends Mammoth and not members of representative class, Otherwise, must exhaust their administrative personally remedies. contend, a they could plaintiff avoid exhaustion doctrine simply including within the class one individual who had administra pursued his tive but remedies did not bring judicial action as named plaintiff. all,

This assertion too much. First of the fact that an individual proves not, course, administrative would remedies as a of entitle pursued matter him be to included in a of action. Exhaustion adminis- class subsequent trative remedies does not the “well defined necessarily community provide interest of of and. law fact involved questions affecting parties to be (Daar Yellow class actions. v. Cab Co. represented" required (1967) 695, 724, 67 Cal.2d 433 also 704 P.2d see Cal.Rptr. [63 732]: Witkin, 3 (2d 1971) 181, Cal. Procedure ed. 1853- at Pleading, pp. However, 1854.) in most instances those individuals who have a sufficient interest in the matter seek subject to administrative review will possess community of interest with others to inclusion in the justify group repre- sented ain class action. But defeats the very this conclusion subsequent argument defendants advance: that the con- Board entitled to learn the tentions of interested litigation before is instituted. If those unnamed parties in the class have plaintiffs suit administrative relief sought previously, will have in the expressed position representative plaintiff suit, class and the Board will have had its to act and to render opportunity had litigation if it chosen to do so. unnecessary,

268 be desire represented Young Schaeffer and apparently

Messrs. class. be excluded from sought have They Griffin. plaintiff 800, (1971) 821 Cal.Rptr. 4 Cal.3d Superior v. Court (Cf. Vasquez [94 have albeit unnamed 796, 964].) two plaintiffs, P.2d Since plaintiffs, doc Board, exhaustion before the previously appeared policies circumstances, the doctrine cannot Under these trine have been fulfilled. at the time of class not organized to bar suit employed to hear had the Board has opportunity administrative Defendant appeal. Young, along owners Schaeffer and arguments interested property owners, several interested who Now property two others also appealed. Griffin, here named Young, Schaeffer including plaintiff represented more Nothing of that decision. seek a determination of the legality judicial doctrine. To plaintiff could effectuate the exhaustion require policy others, require have in addition Griffin to personally appeared, American Sav. (cf. La named Sala Young Schaeffer plaintiffs 849, 864, P.2d (1971) & Loan Assn. Cal.3d Cal.Rptr. [97 1113]) serve no additional useful would purpose. next insist that failed

Defendants International plaintiffs final of defendant Board seek relief from the decision timely giving approval that deci ordinance Section 1213 the zoning provides permit. all unless a court review sions of the Board “shall be final for purposes become after such decisions final.” sought thereof is within thirty days on June the decision defendant Commission Defendant Board upheld a writ sought On 30-day within the July period, 1971. plaintiffs in the Third District. On of administrative mandamus Court of Appeal, tO'the the Court denied the writ but “without July prejudice Appeal On after days filing July Court.” Superior proceedings Board, filed an identical for a writ by the decision the petition plaintiffs and Interna of mandamus in court. Defendants administrative superior 19 is greater tional assert that because the between'June 14 July period ordinance, seek than the allotment cannot 30-day by provided plaintiffs We this contention. review. judicial reject (in at the was the

It must be noted onset that relief judicial “sought” ordinance) the words of the the within of days, in Court of 30 Appeal denied there it was denied “without Board’s decision. Relief was but preju no dice.” This term indicates that decision on the usually 'merits the has “The rule is well settled that a denial this or by been made: appel late court of for a writ without ‘is res judicata opinion application the possible issues unless the sole legal presented application merits, the on it of denial was that the court acted the or unless ground ” such denial intended to be the affirmatively on merits.’ appears

269 206, 767, Superior (1962) v. Court (Hagan Cal.Rptr. Cal.2d 770 [22 982]; Imperial Imperial Irrigation Land Co. v. Dist. (1913) see 371 P.2d 491, 234].) P. Cal. 492 [137 Defendants and International contend that the writ with denying out does not toll or extend the statute of of 30 days. limitations prejudice VI, Article jurisdiction section state Constitution gives original Court, courts, to the Courts of their judges Supreme Appeal, superior mandamus, in certi for relief in the nature of extraordinary “proceedings orari, and 56(a) Rule “If the law prohibition.” provides: petition might instance, have made the it shall set forth fully been to lower court in first which, the the of circumstances in render it opinion petitioner, proper that the writ should issue . . .” originally from court . reviewing rule, his pleading; comments states: “In form is a rule Witkin this of effect, however, in it Court courts expresses policy Supreme instance, to refuse to exercise their original in first appeal jurisdiction Witkin, unless the (5 Procedure, supra, circumstances are Cal. exceptional.” Writs, 3889; at Extraordinary v. Superior also Cohen Court see p. (1968) 267 Cal.App.2d 814].) Cal.Rptr. [72 seeks to foregoing encourage extraor- policy filing petitions follow, however, writs in the It dinary court. does not when such superior is effectuated policy by an court' order relief appellate denying without prejudice should be petitioners denied a hearing merits reading the abbreviated statute of limitations. An myopic strong equally interest was formulated Morgan court in Somervell Cal.App.2d P.2d “It is furtherance of a [104 policy 866]: who, frequently acts to exemplified enable like party plaintiffs action, has proceeding, filed a cause of present seasonably it merits, its try upon, defects in the form or substance notwithstanding error in pleadings, remedy or mistake in tribunal invoked.” sought, Morgan involved of a cause of action Code pursuant transfer Civil Procedure section 396. Thus factually from the distinguishable case at bar. The Morgan, however, policy explicated here. applies International, Defendants been having on notice of the put litigation, were not manner prejudiced Court denial Appeal’s and the petition in court. subsequent prompt refiling superior

We conclude that of the statute limitations plaintiffs complied by filing writ of mandamus in the of petition Court within the Appeal of limitations statute contained in the Mono Ordinance County Zoning denial without upon by refiling in the prejudice promptly superior court. Plaintiffs in- by two final contentions raised plaintiffs. now turn to

We the following be set aside on must sist that the granting permit EQA: with the failure to addition defendants’ comply. in grounds local findings by (1) made written required defendants have not ordinance; of the per- did (2) granting the evidence not support law. be as a matter of must set aside mits Ordinance Zoning provides, Section 1201 of Mono County be by granted “Use Permits. Use permits pertinent part: added.) (Italics .” that. . . it is when Planning only Commission found here, word “found” then, the use of the is whether The involved question Supervisors v. Board Schumm written In requires findings. specific 934], was re the court (1956) P.2d 140 Cal.App.2d [295 “ ‘In recommending an ordinance which provided: quired interpret ....’” shall find Commission Planning use approval (140 Cal.App.2d court that written were not required. The held findings v. Board However, etc. Assn. Broadway, Laguna 880-881.) at pp. 146, 427 P.2d Permit Appeals 66 Cal.2d 767 Cal.Rptr. [59 administrator 810], we which required zoning said that ordinance (66 .” at . . Cal.2d the facts which “in his establish specify findings norma] 3) and that the findings presump necessitated written fn. p. which must ex findings apply tion “does necessary facts.” forth the relevant supportive state their and must set pressly findings 773; (1962) 58 Cal.2d Supervisors v. Board (66 at cf. Siller Cal.2d p. 41].) P.2d Cal.Rptr. [25 the word using “findings” of ordinances interpretation proper those of the body on the intent adopting “found” naturally depends Legislature the statewide concern expressed ordinances. light EQA’s as evidenced ecology, for written the field findings or “found” report, the words “findings” construction of proper which the agency facts on written statement of supportive requires aof myriad the assessment has its Since this involves made decision. report facts which would all those (see 21100) includes elements obviously if were findings required contained written such findings the same affords plaintiffs ordinance. the written Accordingly, to the ordi- findings pursuant that would achieved written benefits findings written nance, case no additional and we hold this therefore in the sense are orthodox required. evidence to that there was insubstantial sup- contend finally

Plaintiffs be set aside as matter of the and that must the issuance permits port EQA activity, law. view conclusion that the to private In of our applies by and the fact that such a will necessitate further holding proceedings defendants, of the evidence. we find it unnecessary weight analyze VI

We the terms of the act an environmental emphasize impact “which have a effect report significant for required only project may §§ 21100, 21102, 21150). 21151; (§ on the see environment” also at the case bar the issue whether the of International project proposed have might such an effect was not resolved either defendants court, superior because it was believed the presumably project not covered act in would be this event. It inappropriate instance, court to determine the in the we leave issue therefore first the matter to the defendants’ future proceedings.

We recognize that reach of the effect statutory “significant phrase, environment,” on the is not clear. To some extent this is immediately deals, in a inevitable must, statute which as the with questions degree. Further .legislative administrative guidance forth- may courts, coming this others. But the point among for their part, limited their constitutional discharging function of the cases deciding that are before brought them. As with other inter- questions statutory the “significant pretation, effect” will thus be language act fleshed out normal process case-by-case adjudication. observations,

Two general nevertheless, be made at this time. hand, On the one in view of the clearly intent expressed legislative to pre serve enhance the quality (§§ 21001), environment courts will not countenance abuse of the effect” “significant qualification as a subterfuge to excuse the making impact otherwise reports required by the act. In this connection we stress that the has mandated Legislature an environmental when a only will proposed project have a effect, significant environmental (§§ but also when “may” 21151)

21150, (§§ 21100, 21102) effect. or “could” have such an On hand, us the other common sense tells majority private projects is for which a or similar entitlement are necessary government permit construction, improvement, in only minor scope—e.g., relating hence, in of an individual or small business—and dwelling operation circumstances, have little or no-effect on the en- absence unusual be as before exactly vironment. Such accordingly, may approved projects, EQA. the enactment

In for curiae assert that their amici rehearing petition respondents EQA 23, 1970, when went into in between November period herein, effect, 21, 1972, the date of our decision govern- September com- now either in agencies mental progress approved projects, reports, without of environmental impact pleted, requiring preparation from the erroneous but faith belief that such were good exempt in projects have relied the act. To avoid who possible hardship permits parties issued, thus we are asked to make decision only. our prospective In the of cases in We see no need for such a drastic minority step. statutes of should have been impact reports prepared, appropriate 268, ante), the Mono Cbunty will As noted herein (p. limitations govern. for seeking judi- declares a statute of limitations Ordinance Zoning 30-day of defendant If this cial review of decision Board. provision typical 22- ordinances, during few if any such very projects approved if a substan- to attack. And in will still subject month question period case, similar any statute of limitations longer pro- tially provided laches. the doctrine of by invoking tection be afforded decision in order to the effective date of our stay We also asked to alia, time, to draw up additional inter governmental allow EQA for applying private projects guidelines develop procedures we no real for such Again necessity defined herein. departure perceive have authorized we circumstances extraordinary from normal practice. court when its immediate a decision this the effectiveness of delay v. Young (See, e.g., would have been virtually impossible. implementation Cal.Rptr. 445]; 533, Serrano 496 P.2d (1972) Gnoss 7 Cal.3d 28 [101 P.2d Priest Cal.3d 618-619 Cal.Rptr. [96 however, above, majority we 1241].) For the reasons given expect will sought for which governmental approval private projects and there- environmental effect the future will no risk significant present the re- event. respect With reports fore will not require impact mainder, been effect since November out that the has we point to the method of complying here raised as many questions 1970. the act in the case have arisen during with of could also private projects in the of We must therefore months case past presume public projects. the act with under governmental agencies charged responsibilities Code, now 3548) have been their duties and can draw (Civ. performing to aid in their and sector upon solving planning experience whatever have in the sector. To the extent such may problems they private hand, and at we do not to the task planning experience prove inadequate doubt that with the will and of all concerned good cooperation appropriate new and devised. And if some de- can guidelines procedures promptly nevertheless ensue for certain lays private processing applications environment, which a effect it threaten to' have on projects significant in the should remembered that such delays Legislature’s implicit written, a detailed environ- decision primary require preparation mental those cases. impact report precisely reversed, a

The order from is directions grant peremp- appealed writ of mandate defendants set aside the issuance of the tory ordering conditional use building permits. J., McComb, J., Peters, J., Tobriner, J., Burke, J., C.

Wright, con- curred.

SULLIVAN, J.I dissent. The settled the majority, opinion discarding principles statutory construction distorting plain meaning words, common English an adopts section interpretation pertinent Code, Environmental Act of Quality (EQA) (Pub. Resources 21000-21151)1 which in §§ is not my opinion legally supportable. end

desired arrived at a cannot such means. “This majority justify court has no to rewrite the statute it to a power so to make conform presumed intention (Seaboard Corp. which Acceptance expressed.” Shay 882]; 214 Cal. P.2d italics added.) [5 is, course,

The crucial question before whether us Mono County must an prepare environmental to section pursuant impact report, a before grants conditional use or for International’s building permit at proposed development Mammoth Lakes. The answer to this question on turn of a resolution construc-

depends statutory problem tion—whether (§21151) intend to out” phrase “any they carry project includes within its a a for which scope governmental development As will I conclude that the rules required. appear, applicable interpretation compel negative answer.

Section “The provides: bodies of all cities and counties have which an of a officially conservation element adopted general plan out, shall make a finding intend to any project they carry may 1Hereafter, indicated, unless otherwise all references are to Public section Re sources Code. environment, is in accord with con-

have effect on significant servation element of the All other local governmental general plan. shall they make impact report project to' effect on the environ- intend out which have carry significant local agency ment shall submit it appropriate planning Code.” of the Government Section 65402 part report required by intend “any order to construe the statutory project phrase out,” it “should ascertain the intent is fundamental that the court carry (Select the the the of law.” of so to effectuate Legislature purpose 640, Equal. (1959) Base v. Board Cal.2d 645 P.2d Materials 51 [335 of a cited.) “rea and cases there Our endeavor must be produce 672] . .” Kusior v. consistent with . . (E.g., sonable result purpose 603, 657].) (1960) 129, 54 Cal.2d 354 P.2d Silver 620 Cal.Rptr. [7 will of the We that in the many ascertaining out ago pointed years themselves for the court turns first the words Legislature, “[t]he how- It on extrinsic aids Primarily, answer. also .... rely properly ever, of words, that arrangement purpose superimposes sentry, their stand in immobilized dictionary meaning, Legislature upon it was was wisdom or lolly, reminders whether their arrangement wittingly undertaken not to be disregarded. ^[11] . . . If the words of clear, are not add to or alter them to accom- statute court should a of statute or from that does not on the face its plish purpose appear not at the court is liberty legislative history. Certainly [Citations.] or the available seek hidden the statute meanings suggested by 175, (1950) 35 (People v. Knowles Cal.2d extrinsic aids. [Citation.]” 191, 1]; re Miller 31 Cal.2d (1947) P.2d see also In 198- 182-183 [217 Proc., 1858.) 722]; P.2d Code Civ. 199 [187 § we canon literal construction must effect to this of interpret giving usual, of language employed ordinary statutes “according import 947, 731, P. (In (1928) re Cal. 737 Alpine 203 them.” framing [265 (1969) 1500]; Department v. Motor Vehicles see also Merrill 58 A.L.R. of Cal.Rptr. 907, Sargent v. 89, 33]; 458 P.2d 71 Cal.2d 918 Chavez [80 162, 801].) statute (1959) The sweep 52 Cal.2d 203 P.2d [339 which the Legislature language should not introduction enlarged by 619, 2 Cal.3d Superior (1970) Court has Keeler v. (E.g., left out. overtly 481, 617, 420].) 40 632 P.2d A.L.R.3d 470 Cal.Rptr. [87 so as course, be interpreted enactment must I recognize, or section clause its various considering particular harmonize parts, by Materials Base (Select as a whole in the framework light statutory 645; Board Equal., 640, v. etc. Retire- supra, 51 Cal.2d L.A. Stafford 795, 12]); ment Board a (1954) 42 Cal.2d P.2d but special [270 where the particular provision general, especially provisions qualifies Lines, Air inconsistent and v. Western (People cannot reconciled (1954) 723]; Inc. Cali- 42 Cal.2d P.2d Rose v. State 637 [268 (1942) 505]; In Marquez 19 Cal.2d 723-724 P.2d re [123 fornia Proc., (1935) 342]; Cal.2d 1859) P.2d Code Civ. [45 (Hartford where is later in Acc. particular provision point position etc. Co. v. City (1947) 121]). Tulare Cal.2d P.2d 835 [186 these general Applying construing phrase “any project principles out,” intend to I carry the words themselves. Since no begin EQA, definitions are first is the our provided guide dictionary. Webster’s Third International defines the Dictionary, Unabridged “project” noun a “(1): pertinent ... part specific plan design (3): ... scheme (a): planned formulated undertaking: definitely [as] . (1): research . . piece (b) an devised effect to undertaking 1813). reclamation or (at of a area of land” improvement particular p. verb The “intend” “(2) (a)(1): is defined relevant thus: to have part in mind as a or design ... ... an to be or object gained purpose: (id. 1175). achieved” at “carry “(1): The out” is defined p. verb thus: to into (2): (3): execution a put to to issue to successful to continue bring (Id. an end or 344.) at point.” p. stopping definitions,

Putting together these issue at takes statutory phrasing on any meaning: undertaking, designed put to be into execution suc- cessfully completed. Moreover, in the “they” “any pronoun phrase project intend to out” they carry of the words in sharpens significance the context of the case course, at bench. refers back to “They,” “legis- lative bodies of all cities counties” in the sentence of first section 21151, and to other local in the governmental second agencies” “[a]ll sentence.2 words, section,

In other under the first sentence of bodies legislative of cities and counties which have an conservation element officially adopted of a finding they must make a general plan that any undertaking propose to into put execution which a have effect on the environ- may significant ment “is in such accord” with conservation element. Under the second recognize County 2I that Mono did not have a at the conservation element time planning of the decisions supervisors, commission and board and thus Nevertheless, only strictly the second is it applicable sentence of section 21151 herein. intent, analyze is instructive to both sentences to discern since both contain the crucial “project carry words intend to they out.” (i.e., and counties

sentence, cities all other local governmental agencies element)3 make which not have an conservation must do adopted officially report impact an environmental on any they propose put undertaking effect on the environment. into execution which have may significant (i.e., Local agencies this and clear. meaning language plain (to use a short- counties) finding must make an environmental cities be, may hand case or environmental impact report, expression) itself which local in connection with any "agency project proposed such it another way, into effect or execute. To put directly plans put works with only projects finding report required respect 65401). Code, (as Nowhere of local described in Gov. do we the effect that local agencies section 21151 find language shall such make findings respect projects reports Certainly, or other may regulations. issue licenses permits, easily have very if this had been the intention could Legislature, words, with the plain such in few coordinated intention expressed simple it had words meaning already employed. sen- in the

This conclusion is buttressed additional second language “any on tence of section the effect that an . shall . . which have a effect the environment” significant project the Gov- “as section part report required submitted (“Local Planning") found in ernment Code.” Section 65402 is chapter brief that of title 7 of the Government Code. It (“Planning") provides public a a for county neither nor shall real city acquire property pur- a or public nor construct a structure without making report poses building the ascertain whether to the local so the latter agency planning section 21151 environmental scheme conforms to its Since general plan. , to are in to reports pursuant impact reports incorporated prepared 65402, it for a section Code make no sense Government section would to a the the Government 21151 to of report beyond apply scope “project" public Code to section. 65402 only acquisi- Inasmuch section applies tion, construction, 21151 only so must section apply or too development, out private to works and not as well carried public activity, to projects, to admin- like lead the International. A result would developer contrary 3Clearly governmental agencies” this means phrase the in context other local “[a]ll officially in adopted and not conservation element cities counties which have general counties. governmental other cities and plan; does not mean entities than Code, agencies” “local (Compare section of the which defines 50001 Government Counties”), (“Local agencies"), (“Cities 5 division under the context of title 1 (“Powers Counties”), (“GeneraV’) chapter 1 part 1 and Duties Common to Cities and “ county, city, city and agency’ this or as county, ‘Local as used in division means follows: requires.”) the unless context otherwise

277 on activities istrative of a local illogic agency reports processing planning its beyond statutory purview. sum, I conclude that the environmental or finding impact private for section 21151 is not to activity applicable

requirement which a carried is governmental necessary, “projects” opposed out entities. I reach merely by analysis this result plain of the intend out” meaning words “any project they carry statutory Knowles, (See People the context the section in which are found. supra, 182-183; 737.) 35 Cal.2d Alpine, supra, In re 203 Cal. The above is words of section 21151 analysis meaning plain that section in statutory supported Legislature’s placement scheme of the as a whole. Section is located in 4 of chapter EQA, which the has entitled Section 21151 Legislature “Local agencies.” operative the only the entire act—setting provision chapter—and forth required circumstances under which local adopt environmental or within findings Nowhere impact reports. chapter there private mention of or intent to it. activity Similarly, regulate chapter act, Commissions," labeled “State forth Agencies, Boards sets almost with identical re- wording requirements boards, agencies, that state ports and commissions projects “propose out which could carry have a effect on the environment of significant 21100.) (§ state.” Section state affecting operative provision agencies, again does indicate intent nor any regulate activity, private can such indication be else within 3. anywhere found chapter Chapter merely states the short title of act.

Only chapter has labeled merely “Policy,” Legislature “individuals,” is there interests,” reference to “private “corporations” (§ 21000, (f) subds. need their (g)) general “regulate" (§ 21000, activities However, subd. those refer- (g)). lofty imprecise ences to when activity chapter pale importance compared fact of their omission 3 and 4. Since latter chapters chapters contain the only act, of the their omission of operative provisions any reference to a private for which is “projects” (e.g., governmental permit is necessary) significant. did not intend

Thus it is clear that the simply abundantly Legislature be to carried (environmental projects either section 21100 on impact report (environmental impact report out state by agencies) or section to be to projects carried out local by agencies) apply projects is private carried out That clarity apparent persons corporations. of EQA, its the structure framework of the the opera meaning plain tive and textual examination of the section at issue. The language, major no rules literal make those words of attempt ity interpret by accepted construction. and declara Instead draw from they lavishly general findings of the tions maintenance of environmental Legislature (concerning quality (§ 21000) (§ 21001)), and the of the state that refer policy respect EQA law, to similar in federal and trace the course of the language through short, In in the words of Legislature. unable to discover majority, section 21151 private intent us to cover projects, attempt persuade above, elaborate referred to that in reasoning way some private must be projects deemed to included I that this anyhow. suggest venture were they are not unsuccessful. completely Plainly private projects so included. EQA enlarge of sections support stress other initially

The majority is Chief reliance section 21151. ment limited meaning obviously set forth" are “expressly said to on sections 21000 and placed section Legislature. quotes the intent particular opinion (f) (e) and subdivision, with subdivisions together subdivision This (g).4 21001, is (f) of section (d) employed 21000 and section subdivisions to include intended “the the broad Legislature to support proposition activity aas governmental projects] process private permit-issuing [for 257.) at (Ante, p. which an required.” for environmental impact section into general to infuse these expressions Such attempt forth setting requirements Section scrutiny. does not withstand section only findings reports, impact concerned, as are insofar local agencies actual operative 4, which chapter It is found under separate recognize. herein parties last section is the very to local It agencies. has reference special “intent” general act, from intervening various sections separated special and 21001. It constitutes particular, sections provisions a whole. of the act as cast general within more provision con- state declarations of the general policy However commendable influence on broadening exert no tained sections 21000 and make are They of section 21151. impotent limited clearly language Indeed, do. they actually section more than say the clear words harmo- and 21001 are properly the broad sections 21000 declarations (state proj- of sections with the nized operative provisions particular those (local treating ects) particular and 21151 governmental projects) government which Legislature agencies of the 4“It that all state is the intent individuals, public agencies which regulate corporations, and activities of environment, regulate that such activities so quality affect the the shall found added.) (Italics damage.” given preventing is major consideration environmental the sec- statements of general as provisions paramount preliminary (Code Proc., 1859.) Civ. tions. that section 21151 does not

My apply projects conclusion itself, act the of the rather than refuted by legislative history supported from, it to final enactment. initial introduction in the Assembly passed provisions While the were intent” of sections 21000 and 21001 “general the retained intact in the course of virtually legislative opera- process, tive provision section 21151 was amended. significantly 2, 1970, Bill 2045 was introduced Assembly by

When first on April members Select Committee on Environmental Assembly’s Quality, section 21151 “All local governmental follows: proposed provided shall conduct needed environmental studies and shall any program consider out alternative methods carried them which have effect may significant (Italics on environment.” quality added.) 26, 1970,

By May had been section 21151 almost proposed entirely rewritten, after referral Committee on Natural Resources Assembly and Conservation. bill reintroduced Assembly passed on At July 1970. that time section 21151 read as follows: proposed “The legislative of all cities and body counties which have an officially conservation element of adopted shall make a general plan finding program out, they any carry intend to which have a may effect significant environment, on the in accord with conservation element general Local governmental plan. units without an officially adopted conservation element shall make environmental on any impact reports out, program they carry intend to may have effect significant on quality environment. All other local agencies shall governmental make an they carry program on intend to impact report out which have a significant effect on the environment and shall it submit part local aas appropriate planning agency added.) by Section required (Italics Government Code.” The bill was then sent the Senate, where the Committee Senate Government Organization amended section 21151 again by striking first above reference to “project it with the words “program” replacing change in zoning,” and by the second reference to striking “program” replacing with the word merely “project.”5 follows, 5Thus the August Senate’s version section 21151 on 1970, read as being deletions shown strike-outs body italics: “The additions of all cities and officially counties which have an adopted conservation element of a general plan change, zoning finding any-program- project shall make a was again.6 amended On section 21151 August amended, by again was section 21151 significantly, and most Finally, to environmental the above second sentence entirely referring deleting 20, 1971, “change the section zoningThus on August effect of any bodies of “The legislative read as and reads now: it finally adopted ele- conservation have an officially all cities and counties which adopted they that intend make a any ment of a shall general finding project plan environment, out, is a on the to which have effect carry may significant Tfie-legAl-a-tive- the general accord element of plan. with conservation n bodies-ofiallcounties-whieh -conservation-element- have-an-uffk-jaljy- adopted they--intend- a change-in tin-ding-that any zoning <ff-argener-al-pl-an-.shallmalee the-environment,--is out, a -in- to which have on carry may significant-effect n - All other local accord- the-conservation-cle-mc nt-ef-the with general-plan, on any shall make an environmental governmental agencies report impact which have a effect on significant intend to out they carry may project it to the local the environment and shall submit appropriate planning of the as Section 65402 Government report agency part required Code.” be attached claim, significance no

Contrary majority’s special may indeed intermediate amendments which summarized fairly be may aas as change nearly from That “program” “project.” change be, it clear or as since either broadening as make out majority environment, out, carry may significant intend to accord which have a effect on the general governmental plan. units conservation element of the Local adopted impact officially without make environmental conservation element shall significant .any project may reports program- they on have a carry intend to out which governmental agencies quality on effect All other shall environment. local they carry impact report any program make an intend to out which environmental on may significant appropriate a shall have effect on the environment and submit planning agency part required by local 65402 of the Govern- report Section ment Code.” officially legislative body- 6“The which have an bodies of all cities counties adopted general finding any project make a plan conservation element of a shall out, significant -or-eha-nge may a effect on zoning carry have intend which environment, general plan, -feeeal is in accord with the conservation element of nn OT>-the--quafity-of-The--env-i-r-omnent- n a all significant- bodies effect general plan officially adopted shall- a counties which have an conservation element of out, may carry finding zoning they have change intend to make environment, element significant accord with the conservation on the is in effect general plan. governmental agencies shall make an other All local have project carry out which they intend to any-pregr-am report local appropriate plan- it to the significant submit effect on the environment and shall part of the Government agency ning required Section Code." hand, or, on the other or connote '‘program.” “planning” "‘project” to the analogy in the environment. Nor is actual alterations physical (NEPA) Act federal the National Policy under Environmental guidelines instance, since, between in this as will explained, helpful differences the federal and than the similarities state enactments are more significant in solving present problem. amendment, view, one,

The truly important in is the last which deletes my with a con- city requirement any legislative body county servation ac- element in its make a of environmental general plan finding cordance with that “change zoning” element for in which it “intends amendment, words, out.” cany enacted, In other after the section the local to find accordance with the conservation requires body “project” element its for a general only which it intends to plan cany out. In strict sense it is that the is to Mono arguable change inapplicable conservation, County, since it did not have element at the such pertinent time; but the is change to show the meaningful narrowing nevertheless to which section 21151 was of final enact- process subjected course ment. The Legislature’s obvious decision to make requirements inapplicable section. 21151 to local zoning is changes especially important case, in the instant since zoning amendments are one of the changes classic means by private which a locality regulates narrowing activity. of section 21151 in this manner the conclusion that the strengthens Legis- lature did not intend the of that section to operative provisions apply private for which a activity governmental but permit necessary, intended them works apply only projects.

I turn now to consider reliance majority’s the federal act upon (NEPA) and the guidelines interim of the Council on Environmental (ante, 260-262). Quality pp. Respondents concede their brief NEPA and the council’s interim guidelines of the part act, of the history state virtue of their adoption shortly prior ante, act and passage state because of (see similarities in provisions 260). Yet, out, p. respondents point similarities between the very state act and the federal underscore fact that the language Legislature intended the to be meaningful—a (City well-established rule differences Port City Hueneme (1959) Oxnard 52 Cal.2d 395-396 [341 318]; P.2d Estate Simpson (1954) 467]; 43 Cal.2d P.2d [275 People v. Kuhn (1963) 253]) 216 Cal.App.2d Cal.Rptr. [31 which the majority ignore. Examination of these differences again results conclusion that section 21151 does not ato apply project for which a governmental required.

First, the NEPA 102(2)(C) 4332(21(C)) provides (42 section U.S.C. that, extent to the fullest pos- and directs authorizes “The Congress

that: sible: ... all Federal Government shall .... ^[11] legislation (C) recommendation every proposals include major affecting Federal actions significantly quality and other statement environment, detailed impact] human [environmental added.) (Italics . .” . . official responsible Quality, Environmental of the Council on

Next, the interim guidelines amendments (before significant May any promulgated EQA) stated: .... Actions included

“5. [under NEPA] to: ‘Actions’ include but are not limited “(a) and or “(i) legislation appropria- Recommendations relating reports tions; activities;

“(ii) and Projects continuing “— agencies; Directly by undertaken Federal contracts, grants, Federal through in whole or in “—Supported part assistance; subsidies, other forms of funding loans or “— lease, license, other entitle- Federal or Involving permit, certificate use; ment for 7391; see

“(iii) (35 Policy—and Fed.Reg. procedure-making.” 7724; added.) italics also 36 Fed.Reg. which, of this federal categorization “projects,” light tri-partite had when it enacted us, the in mind Legislature remind majority

EQA, section what are now-familiar we to make of the phrasing i.e., out,” which local agencies intend to “any carry project project out? intend to carry First, use of the word

To me two crucial are clear. very points that the Legislature the first shows Législature in by place “project” intended than the federal section 21151 to have narrower scope provisions, subcategory since is of “actions” manifestly according “project” federal 5. This indicates guideline wording No. difference desired to limit the of section 21151 to Legislature coverage “projects” (ii)) relat- or only (subcategory reports opposed “[recommendations and or ing legislation “[p]olicy—-and procedure-making.” appropriations” Second, type we section covered when scrutinize “project” — out intend carry local bodies —any project not the evidently between the federal state is one language analogy federal Examination three urged majority. types “[pjrojects activities,”7 supra, that the Legis- conclusion continuing compels activities; [d]irectly lature was analogizing continuing “[pjrojects [f] agencies” undertaken when section 21151. The adopted federal out” in the carry intend to “any agencies] phrase project [local similar to federal undertaken clearly “[djirectly agencies” phrase readily the federal two can be guidelines. These types “projects” and their we consider the when marked analogized similarity pronounced, between the section other two phrasing types difference of federal through those in whole or Federal projects: part “[sjupported contracts, assistance,” ... or other forms those funding grants lease, license, a Federal certificate or Other “[ijnvolving entitlement permit, for use.” differences, of these which we light significant, must deem the phrase again out” on the a

“any they carry intend to takes of project meaning actually agencies (a executed or carried local project public forward directly agencies. works like undertaken Federal project)—just projects Moreover, “expressio under the est rule of unius exclusio alterius” the Legislature within the of evidently including coverage section 21151 a private for which the projects governmental If required. result, had a intended such indeed Legislature would have included similar to that used in the the language of description type counterpart of Federal lease, license, a project: “[ijnvolving Federal certificate permit, or other entitlement for use.” There is the no basis for simply majority’s facile conclusion to the contrary. is there value,

Nor let alone justification, constructional to the majority’s “parenthetical” use statement Assemblyman of Knox in an attempt to shore its up intent. It interpretation Legislature’s settled that such principle statements inadmissible to show the intent (In Legislature as whole of statutes. re Lavine construction (1935) 2 Cal.2d 311]; P.2d 327 42 P.2d Rich v. State [41 Optometry Board 512].) Cal.App.2d Cal.Rptr. [45 I see no reason to case, from this rule of the instant even depart law in EQA 7The “continuing omits the reference activities” federal as well “projects.” context, This is significant one is not difference which instant since the distinction “projects” “continuing between would one appear activities” to be duration, having of time nothing to do with between the distinction activity course, at “continuing EQA issue herein. Of the omission activities” in the important indeed he cases. other that the statement showing there has been no adequate “parenthetically”; matter, declaration of (or, contrary for Knox Assemblyman rule, where Porter) within the sole exception falls Assemblyman discus of legislative of a reiteration only consists testimony legislator’s amendments, “amounts to leading sion proposed adoption certainly . . . and is activity committee’s part of the [legislative] (Rich Optometry, supra, Board . . . .” v. State of the legislative history 603.) 235 Cal.App.2d 591, were introduced the fact that two new bills also majority ignore expanding in March Assembly precisely purpose intend to out” carry of section 21151 from “any

scope project action,” almost identically as that term is “any major explicated new bills of these federal referred to above. The introduction guidelines section 21151 do not believe that legislators indicates many present to it assigned majority. broad impact carries 2, 1972, with 14 together the Assembly, On March members of would, bill co-authors, introduced A.B. 681. This members of the Senate as alia, review concerning inter add a fifth chapter would institute a of actions The new agencies. Depart by public chapter Review an administrative subdivision ment of Environmental Impact of the bill would State Environmental Board. Section 99 Quality (deletions to read shown amend section 21151 as follows present strike-outs, italics): bodies of all cities and additions “The an conservation of a general counties which have element officially adopted -ear-ry—e-aF, shall make a that any finding (cid:127)preje€t-ffiey--iatend----t-0- plan environment, major have a effect on the significant action which-m-ay’-could of the All other is in accord with the conservation element general plan. including local shall make governmental districts agencies major action which impact report any p'roje-Gt-tlie-y-4Bte-n4-to-€-ariy--eut- a effect on the and shall submit (cid:127)may- significant could have environment local as of agency part report required appropriate planning to the and State Environmental by Section 65402 of Government Code 5Quality ...” Board. which would

Section bill would institute a new section 21102 define term “action” follows: as

“(a) and relating legislation Recommendation or reports appropria- tion. - Projects

“(b) continuing and activities: “(1) Directly in whole by public agencies. (2) Supported, undertaken [<fc] subsidies, contracts, loans or other through public grants, part or in forms assistance, lease, license, cer- permit, [ij] Involving public a funding or other entitlement use. tificate for added.) (Italics

“(c) making.” Policy procedure is, No. 5 course, identical to the federal terminology guideline This for the substitution of word supra, “public" immaterial quoted except setting. for the word “federal” to relevant state language render First, section would widen the amendment proposed plainly scope 21151 to but other only continuing cover activities” “projects well; second, would of “actions” as amendment subcategories proposed itself, also now broaden the of the word from the meaning type “project” out,” i.e., covered which “intend carry “[djirectly (projects public “[ijnvolv- undertaken to include those as well public agencies”) projects lease, ing or public ... other entitlement use.” The permit pro- amendment, posed wording, federal light directly analogous, cannot as an but not merely clarify broaden explained attempt present that word in section meaning 21151. The “project” appears suggested shows that believe change Legislature 60 members of the do not that the section 21151 covers present activity for purely private public so necessary. many That co-authored the legislators pro- posed amendment contained in A.B. 681 is further evidence the in- accuracy majority’s section 21151. interpretation present Moreover, 13, 1972, on March A.B. 889 was introduced (by Assembly himself). man Knox This bill same many of the amendments proposes included in (e.g., A.B. 681 new 2.5 adding defining chapter certain terms such as identical to the above “project” (substantially wording 681) A.B. board, “state commis “public agency” (any agency, sion, any district, county, city county, city, agency, regional addition, other subdivision”)). In A.B. political would amend (deletions section 21151 read strike-outs, follows shown additions italics): “The legislative of bodies all and counties which have cities an officially adopted conservation element of a make a shall general plan that finding out, any intend to which a project they sig have carry may environment, nificant effect on is in with the accord conservation element of the general All local shall plan. governmental, -ether make an environmental report intend impact carry project out which have a may effect significant on the environment -ané-shaíf <snbmit4t-te-4he-apprepriate4eeal-^lanfting--agen&y--ae--par;t-ef-th&-fepert Tequifed-by report is When a Seetien~65402-ef-4he-Gr>vc»>ment--<Sode-. required Code, by Section 65402 the Government the environmental of report be part report.” submitted as

286 evident: Section changes these thrust of again,

Once proposed herein which cover the plaintiffs would type “project” 21151 expressly would submitted now. Environmental impact reports wish were covered which projects for works for other than type projects and A.B. 65402. A.B. Code section 889 under Government required basic contention: additional for constitute respondents’ 681 together support involving activity not apply that the section does present at Mammoth International’s a use such as proposed development permit, Lakes. mean- view ignores plain the majority my

To opinion recapitulate, which words of section usual ing particular import use the conditional grant decision to County’s to Mono applicable and analogous cites legislative history to International. The opinion pennit an expansive in fact rather than which negate support federal language declarations general relies on of section 21151. The opinion interpretation are not at the simply of legislative beginning policy I, well as the majority, the manner urged. effectuated in section 21151 in and maintain the quality conscious of the need to improve am profound County Younger People ex (see, rel. e.g., California’s environment 553, 485-488, (1971) El Cal.3d 491-494 Cal.Rptr. Dorado [96 1193]), construction cannot P.2d but settled of statutory principles to achieve that high set aside order judiciary purpose. the Mono Com- County Planning I action taken by conclude all was in respects mission and the Mono Board County Supervisors said bodies ordinance did not and lawful. The regular pertinent require the use of fact in issuance of permit. to make findings specific respect (Cf. Supervisors v. Board Schumm Cal.App.2d 934].) record discloses that the issuance of P.2d 880-881 [295 and did constitute an was substantial evidence supported abuse of discretion.

I would affirm the order. was denied of the defendants and rehearing The petition respondents Sullivan, J., that the should November 1972. opinion petition be granted.

Case Details

Case Name: Friends of Mammoth v. Board of Supervisors

Court Name: California Supreme Court

Date Published: Sep 21, 1972

Citation: 502 P.2d 1049

Docket Number: Sac. 7924

Court Abbreviation: Cal.