JOSEPH F. LEWIS, Plaintiff and Respondent, v. SEVENTEENTH DISTRICT AGRICULTURAL ASSOCIATION, Defendant and Appellant; CENTRAL STATE RACING ASSOCIATION, Real Party in Interest and Appellant.
Civ. No. 21496
Third Dist.
Mar. 18, 1985.
165 Cal.App.3d 823
[Opinion certified for partial publication.*]
Shine & Browne, Shine, Brown & Diamond, P. Scott Browne and Raymond E. Shine for Defendant and Appellant.
Robert Eli for Real Party in Interest and Appellant.
Richard F. Ellers for Plaintiff and Respondent.
OPINION
REGAN, Acting P. J. In this case1 we review the question of whether auto racing at a county fairground racetrack immediately adjacent to a residential area is categorically exempt from the California Environ-
Seventeenth District Agricultural Association (district association) and Central State Racing Association (racing association) appeal from a judgment issuing a writ of mandamus commanding the cancellation of a contract between them for auto racing at the Nevada County Fairgrounds. The writ was issued in response to an amended complaint contending the board of directors of the district association (district board) improperly found the fairgrounds racing categorically exempt from the requirements of the California Environmental Quality Act (CEQA), set forth in
Appellants contend it was error to issue the writ because the amended complaint was barred by the statute of limitations, and because auto racing at the Nevada County Fairgrounds is categorically exempt from CEQA. In issuing the writ, the trial court considered and resolved these issues in favor of plaintiff. We find no error in the ruling of the trial court, and uphold the issuance of the writ.
FACTS
The Nevada County Fairgrounds are contiguous with and less than a mile from several residential areas in Grass Valley and unincorporated Nevada County. In 1958, the Nevada County Fair constructed a multipurpose arena, grandstand, and flat dirt race track for sporting events, including “stock” or “jalopy” auto racing at the fairgrounds. The district board leased the track for such racing until 1965. In 1973, a banked track was constructed permitting higher-powered “modified stock” car racing. Such races have been run by racing association since 1973, generally held every Saturday night from spring to fall. Racing hours were 6:30 p.m. to 12:30 a.m., but since 1976, due to complaints concerning the noise, the last race each evening was required to start before 11 p.m. There has been an increase in racing activity since 1973, resulting in greatly increased gross revenues.
In 1979, after plaintiff and other residents complained about the noise and dust, the district board appointed a committee to study the noise in the 1980 race year. As plaintiff wanted no racing in the 1980 racing year until an environmental impact report (EIR) was completed, he filed a complaint for damages, writ of mandamus and preliminary injunction on April 14, 1980, complaining that the expanded, modified stock car racing had been conducted since 1973 without any environmental review. In May 1980 the dis-
The original complaint attacked the 1980 contract between the district association and the racing association for racing to be held in the summer of 1980. While the action was proceeding to trial, the associations entered into a new contract for racing for the years 1981-1983, even though historically such contracts had been executed annually. After the inception of this suit and as part of the 1981-1983 contract, the district association filed a notice of exemption from CEQA requirements by asserting the racing was categorically exempt under the
Uncertain of its status as a state or local agency, the district association filed the exemption notice with the Secretary of the Resources Agency, as required by
On April 6, 1981, plaintiff filed an amended complaint, attacking the 1981-1983 contract between the district association and the racing association. In that amended complaint, he acknowledged the 1980 license to conduct auto racing was “completed,” but he contended the controversy was “continuing in nature.”
The trial court ruled the issues pertaining to the 1980 contract were moot. However, it also ruled the amended complaint related back to the filing of the original complaint, thereby making the attack on the 1981-1983 contract timely. Additionally, it ruled the amended complaint was not barred by any statute of limitations; that there was sufficient evidence to show plaintiff “furnished” the state Attorney General with the amended complaint; and that a categorical exemption from CEQA does not apply to this activity because the racing caused a potentially substantial adverse change in the environment. Therefore, the trial court ordered a writ of mandamus com-
DISCUSSION
I
As the facts presented by the trial court are undisputed and the questions on appeal concern the interpretation of statutes and administrative regulations, we may draw our own conclusions of law from the facts. (White v. Berrenda Mesa Water Dist. (1970) 7 Cal.App.3d 894, 900; 5 Cal.Jur.3d, Appellate Review, § 529, at pp. 220-221.)
We first examine the merits of the CEQA compliance issue, and thereafter the procedural claims made by appellants. It is clear from the statutory scheme, and from the administrative guidelines supporting it, that the racing activity at the Nevada County Fairgrounds comes under the provisions of CEQA. The district association claimed it was exempt from CEQA because the racing activity was within one of several classes of activity categorically exempt pursuant to
The sole question is whether the categorical exemption is applicable to the normal operations of the Nevada County Fairgrounds racetrack. There are certain principal exceptions to the use of the categorical exemptions in the administrative guidelines.
The trial court included this guideline section in its notice of intended decision, but neither discussed it nor relied on it. As discussed below, it relied instead on the language of the categorical exemption itself. We, however, rely directly on this exception to the exemption, and we limit this
By finding themselves within the categorical exemption in CEQA guideline section 15323, appellants necessarily rejected the exception in section 15300.2. In reading the latter section it is necessary to construe the meaning of “significant effect on the environment.”
The trial court found the meaning of “change” to be change from 1970, the time of the enactment of CEQA. The evidence clearly shows a major change in the scope and degree of racing at the fairgrounds occurred after 1970, specifically in 1973, when the construction of a banked racetrack permitted auto racing at higher speeds and with greater noise and dust.6 We conclude here the racing activity in question represents an adverse change in the environment,7 and as such, it falls within the definition of “significant effect on the environment.”
The trial court stated the district board concluded the 1981-1983 racing noise would not put them into the ambit of CEQA guideline section 15300.2, subdivision (c), exception to the categorical exemption. It then stated this decision was supported by substantial evidence, but only after the district association took mitigation steps. The trial court then went on to state the racing noise “may well have a significant effect on the environ-
It is the possibility of a significant effect on the environment which is at issue, not a determination of the actual effect, which would be the subject of a negative declaration or an EIR. Appellants cannot escape the law by taking a minor step in mitigation and then find themselves exempt from the exception to the exemption. The very fact the district association took steps in mitigation makes it manifest there was a possibility of a significant effect. If steps in mitigation lessen the “adverse change,” such steps may qualify the district association to file a negative declaration, but not to find itself outside the law. Our reading of CEQA guideline section 15300.2, subdivision (c), together with
The mitigation measures written into the 1981-1983 contract, together with an assertion that muffler requirements adopted in 1980 “perhaps lowered the overall residential noise by 10-20 decibels,”8 do not establish that there is no possibility of any even potential adverse change since 1973, 1980, or since any previous summer racing season.
If the district board determines the racing will have no significant effect on the environment after mitigation measures have been instituted, it may file a negative declaration. It may use the opinion evidence of experts as substantial evidence on which to base such a decision. (Coastal Southwest Dev. Corp. v. California Coastal Zone Conservation Com. (1976) 55 Cal.App.3d 525, 532; citing Simonet v. Frank F. Pellissier & Sons (1943) 61 Cal.App.2d 41.) If it is unable to support that finding, it must prepare an EIR.
The trial court uses different reasoning to find the categorical exemption not applicable to this activity, construing the meaning of “past history” in the exemption. However, we do not rely on the trial court‘s reasoning. Instead, as noted above, we hold the “reasonable possibility of a significant effect” exception applies by its clear language, and the exemption, therefore, cannot. We do not decide whether the exemption in CEQA guideline section 15323 would apply to this racetrack activity absent the reasonable possibility of a significant effect on the environment due to the unusual circumstances.
II
The district association contends the trial court erred in issuing the writ because the amended complaint was barred by the 35-day statute of limitations in
The district association contends this ruling was error because the district association is not a local agency, but a state agency, which is required to file its notice of exemption only with the Secretary of the Resources Agency in order to invoke the 35-day statute of limitations.11 Therefore, it was not required to file its notice of exemption with the county clerk for this purpose, and thus, the failure of the county clerk to post the notice did not destroy the 35-day statute of limitations.
The viability of the amended complaint, under these circumstances, depends on whether the Seventeenth District Agricultural Association is a state agency or a local agency for the purposes of CEQA.
The question whether the district association receives funds from the state treasury or its directors are appointed by the Governor will not determine how the district association should be regarded under CEQA. On the other hand, the history of the agricultural associations is useful in analyzing this issue. Under the 1849 Constitution, and an 1859 general law, there was unfettered legislative power to appropriate money to local private agricultural societies. (People v. San Joaquin etc. Assoc. (1907) 151 Cal. 797, 799.) “It became customary at every session of the legislature to pass laws appropriating money to the state agricultural society and to each of the several subordinate societies organized under the act of 1859.”
“[T]he next succeeding legislature, in 1880, enacted two laws; one declaring the state agricultural society to be a state institution, organizing the state board of agriculture and charging it with the exclusive management and control of the state agricultural society as a state institution (Stats. 1880, p. 212); the other, the act here in question, dividing the state into eleven agricultural districts, to be composed of certain named counties and providing for the organization of corporations therein, to be known as agricultural associations (Stats. 1880, p. 238).” (Id., at p. 801.)
Thus, it is clear the organizing statutes enabled the formerly private district agricultural associations to continue receiving state funds by making them public corporations consistent with the language of the Constitution.13 The language used to establish the district associations as state institutions was employed in order to distinguish them from private corporations which could not properly receive state funds. It does not mandate that each district is a state agency for the purposes of compliance with CEQA.
We think the overriding consideration, for purposes of claims under CEQA, is notice. As the trial court found, “The entire reason for
We have held the clear objectives of CEQA can only be met if EIR‘s are filed in the county where the project is to be constructed and where significant ecological impact may occur. (County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 811.) Similarly, a notice of exemption adopted by a district agricultural association must be filed in the district, not in Sacramento, in order to invoke a shortened statute of limitations. It would frustrate the purposes of CEQA to allow a district association removed from Sacramento to make decisions concerning activity happening solely or principally within that district, and then only file a notice of exemption from CEQA in Sacramento. To do so would require citizens who are interested in the enforcement of CEQA as it relates to their daily lives to monitor their local district at their own expense by continually reviewing the loose-leaf binder containing state notices in the Secretary of the Resources Agency‘s office in Sacramento. Such a requirement would make no more sense than permitting cities or counties to file such notices in Sacramento without doing so in their own offices.
In the instant case, citizens of Nevada County had no notice in their own county during the 30-day posting period that the district association had filed an exemption notice. The only apparent purpose of an entity filing notice would be to shorten the statute of limitations from 180 days to 35 days. Thus, because the mere fact of the filing is critical to actions attacking the entity‘s decisions, it is even more imperative the notice be filed and posted locally. (See International Longshoremen‘s and Warehousemen‘s Union v. Board of Supervisors (1981) 116 Cal.App.3d 265, 274.)
Furthermore, with respect to CEQA, the Legislature has only defined “local agency,” and not “state agency.”
We uphold the trial court‘s finding that the filing of the notice of exemption was required to be made with the county clerk, and because the notice was not posted pursuant to
III*
DISPOSITION
The writ of mandamus is affirmed.
Evans, J., concurred.
BLEASE, J.—I concur in the judgment of the court affirming the issuance of an extraordinary writ. I differ expressly with the majority opinion because it offers no reasons for its conclusion that the project comes within an exception to the categorical exemption.
The majority opinion holds that the auto racing project requires an EIR because it comes within CEQA and within an exception, for unusual cir-
Title 14 of the California Administrative Code implements this authority. Former section 15123 (now 15323) includes within the categorical exemptions “the normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same kind of purpose.” (Former § 15123; Cal. Admin. Register 78, No. 5.) This provision depends, for its regulatory life, upon the determination that the “classes of projects” subsumed within the exemption categorically do not “have a significant effect on the environment ....” (
The requirement that the facility must have been designed for the opera-tion (“activity“) for which the permit is sought ties in with the role that
However, former section 15123 does not express the policy which justifies its existence. Standing alone, its language conflicts with CEQA. However, it does not stand alone. There is an exception broad enough to encompass the CEQA policy.
That brings us to this case. The facility was designed in 1958 for automobile racing. It was modified in 1973 to permit the kind of high powered “modified stock” car racing which is the subject under review. The pertinent question to ask is not whether that racing is “unusual” given the present environment but whether the facility, as built or modified, was designed and historically used for such racing, was the subject of environmental review of that use at the time it was reconstructed and whether there has been an adverse change in the environmental circumstances following the construction of the facility. I note that CEQA was in effect in 1973 when the track was banked for high speed racing. That should have subjected the project to environmental review of the uses for which the racing permits are now sought. There is nothing in the record to show that this was done. It is the burden of the applicant for the exemption to show that the conditions for the exemption have been met. Since the uses of the facility were not evaluated at the time the facility was reconstructed for high speed racing in 1973, the categorical exemption for such subsequent uses cannot be applied.
Appellants’ petition for review by the Supreme Court was denied May 29, 1985.