Opinion
MARLER, J. Plaintiffs California Aviation Council and Carl Borgh appeal from a judgment denying them a writ of mandate to set aside a negative declaration under the California Environmental Quality Act (CEQA).1 Plaintiffs contend that the trial court erred in denying their petition on the ground they failed to exhaust their administrative remedies. We do not agree, and affirm the judgment.
Facts
The County of Amador (County) owns and operates Westover Field, a public general aviation airport located in an unincorporated area of the county known as Martell. Real party in interest, FHA Properties, Inc. (FHA) applied for rezoning and subdivision for residential and commercial development of a 237-acre parcel (Hilltop Center) in Martell approximately 5000 feet from Westover Field.
A public hearing was held on the project on January 28, 1986, before the Amador County Planning Commission. The commission voted “to deny without prejudice” the necessary approvals due to “insufficient information to base a decision upon.”
FHA appealed the commission’s denial of project approval to the Board of Supervisors of Amador County (Board). On April 15, 1986, the Hilltop [340]Center proposal came before Board for the purposes of determining whether or not to require an environmental impact report under CEQA for the project, rezoning to allow the development, and approval of a tentative subdivision map. Board adopted a negative declaration under CEQA2 and approved the project.
This action challenging Board’s decision was commenced on May 16, 1986. Plaintiffs are the California Aviation Council (CAC), a nonprofit public benefit corporation organized under the laws of California, the main purpose of which is the preservation and enhancement of California’s public airport system, and Carl Borgh, a resident of Amador County who owns and operates an aircraft based at Westover Field. Among other things, plaintiffs sought a temporary restraining order and preliminary and permanent injunctions restraining Board and real parties in interest from undertaking any construction or development, issuing any approvals or permits, or taking any other action to implement the Hilltop Center project pending full compliance with CEQA.
Both County and FHA answered plaintiffs’ petition. The matter was then tried before the court. Upon consideration of the evidence, the trial court concluded the administrative record does not support the adoption of the negative declaration. However, the trial court also concluded plaintiffs had failed to satisfy the requirements of Public Resources Code section 21177, which requires a person to exhaust his administrative remedies before commencing an action under CEQA. Consequently, judgment was entered in favor of County. This appeal follows.
Discussion
Plaintiffs contend the trial court erred in denying their petition on the ground they failed to exhaust their administrative remedies. Plaintiffs concede they did not appear before Board or otherwise participate in the administrative proceedings. Nevertheless, they contend they come within an exception to the exhaustion doctrine. The case thus centers on the doctrine which requires a party to exhaust his administrative remedies before the court will act to grant him relief and the exceptions to the exhaustion doctrine.
The requirement of exhaustion of administrative remedy is founded on the theory that the administrative tribunal is created by law to adjudicate the issue sought to be presented to the court, and the issue is within its [341]special jurisdiction. If a court allows a suit to go forward prior to a final administrative determination, it will be interfering with the subject matter of another tribunal. (See 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 234, pp. 264-265.) Consequently, the requirement of exhaustion is a jurisdictional prerequisite, not a matter of judicial discretion. (Environmental Law Fund, Inc. v. Town of Corte Madera (1975) 49 Cal.App.3d 105, 111 [122 Cal.Rptr. 282].)3
The exhaustion doctrine bars the pursuit of a judicial remedy by a person to whom administrative action was available for the purpose of enforcing the right he seeks to assert in court, but who has failed to commence such action and is attempting to obtain judicial redress where no administrative proceeding has occurred at all; it also operates as a defense to litigation commenced by persons who have been aggrieved by action taken in an administrative proceeding which has in fact occurred but who have failed to “exhaust” the remedy available to them in the course of the proceeding itself. (See Environmental Law Fund, Inc. v. Town of Corte Madera, supra, 49 Cal.App.3d at p. 112.)
Prior to 1984 the courts had recognized certain exceptions to the exhaustion of administrative remedies doctrine in cases brought pursuant to CEQA.
In Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 267 [104 Cal.Rptr. 761, 502 P.2d 1049] the Supreme Court held the doctrine could not be employed to bar suit by a class4 not organized at the time of the administrative appeal where individuals represented by the class had presented their views to the administrative agency.
In Environmental Law Fund, Inc. v. Town of Corte Madera, supra, 49 Cal.App.3d 105, the plaintiffs had challenged the defendant’s conditional use permit and tentative subdivision map on the ground the defendant had failed to prepare an environmental impact report. Although numerous named persons had appeared at the hearings and protested the proposed permit, the plaintiffs were not among them. Notice of the hearings in that case appears to have been given only to adjacent property holders. (Id., at p. 113, fn. 3.) There was no evidence that notice of the hearings was given the plaintiffs in any form. (Ibid.) The court concluded the plaintiffs were [342]acting in the public interest and were asserting more than privately held grievances. “Application of the exhaustion doctrine against them, by reason of their ‘default’ in the administrative proceeding to which they were not ‘parties’ at all,” the court reasoned, “would mean in effect the imputation of their ‘default’ to the public in the absence of any factual basis for such imputation. In general, the doctrine would thus operate to bar the public from redressing a public wrong; specifically, it would burden the public of the Town, in perpetuity, with the illegal zoning of a substantial area of the community by insulating the zoning action from judicial review.” (Id, at P-114.)
The Corte Madera case was in turn considered by the Supreme Court in Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412 [194 Cal.Rptr. 357, 668 P.2d 664]. There the plaintiffs contended, in reliance on Corte Madera, that they should be excused from the requirements of the exhaustion doctrine because they were public interest organizations seeking to further public, rather than private, rights. (Id., at pp. 417-418.) The defendants suggested the Corte Madera decision was inconsistent with established exhaustion of remedies authorities and should not be followed. The Supreme Court found it unnecessary to pass on the validity of the Corte Madera holding. (Id., at p. 418.) The court noted that in Corte Madera the public interest litigants had not participated in or received any notice of the relevant administrative proceedings and contrasted that situation with the case at bench. The plaintiffs in Sea & Sage did have notice of the administrative proceedings and actively participated at every stage of the hearing process. Under these circumstances, the court held, plaintiffs’ failure to exhaust their administrative remedies could not be excused. (Ibid.)
In 1984 the Legislature codified the exhaustion of administrative remedies doctrine in CEQA cases in Public Resources Code section 21177. (Stats. 1984, ch. 1514, § 14.) That section provides in relevant part: “[fl] (a) No action may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person, [fl] (b) No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing, [fl] (c) This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivision (b). [1J] (d)[5] . . . [If] (e) This section does not apply when there was no public hearing or other opportunity for members of the public to raise objections prior to the approval of the project or when the public agency failed to give the notice required by law.”
[343]Were we confronted only with the clear and unambiguous language of the statute itself we would necessarily conclude a CEQA action may not be maintained by a person who did not personally object to the approval of the project by presenting the alleged grounds for noncompliance with CEQA to the public agency orally or in writing, unless the person comes within an exception set forth in either subdivision (c) or (e).
However, here the task of construing section 21177 is complicated by the inclusion of a declaration of legislative intent in the statute which added section 21177 to the Public Resources Code. Section 14.5 of Chapter 1514 of the statutes of 1984 provided: “It is the intent of the Legislature in adding Section 21177 to the Public Resources Code in Section 14 of this act to codify the exhaustion of administrative remedies doctrine. It is not the intent to limit or modify any exception to the doctrine of administrative remedies contained in case law.”6
Therefore it appears that the exceptions to section 21177 are not only those codified in subdivisions (c) and (e), but, as relevant to this case, the exception set forth in Environmental Law Fund, Inc. v. Town of Corte Madera, supra, 49 Cal.App.3d 105.
Thus, to be excused from their failure to exhaust administrative remedies plaintiffs here must show one of the following: (1) one of the plaintiffs is an organization formed after the approval of the project and a member of the organization objected to the approval of the project orally or in writing (§ 21177, subd. (c)); (2) there was no public hearing prior to the approval of the project, or the public agency failed to give the notice required by law (§ 21177) subd. (e)); or (3) they are members of the public addressing a public wrong and no notice of the proceeding was given them in any form. (Environmental Law Fund Inc. v. Town of Corte Madera, supra, 49 Cal.App.3d at pp. 111-114.)
Carl Borgh, one of the plaintiffs herein, is an individual and not an organization. The California Aviation Council is an organization in exis[344]tence on October 9, 1982, long before the administrative proceedings here at issue were held in 1986.7Therefore exception (1) is unavailable to both CAC and Borgh.
The remaining exceptions available to plaintiffs are to show that Board failed to give the notice required by law, or that they are members of the public addressing a public wrong and no notice of the hearing was given them in any form.
With respect to the adoption of a negative declaration, the CEQA guidelines8 provide for public notice in relevant part as follows: “[fl] (a) Notice that the lead agency proposes to adopt a negative declaration shall be provided to the public within a reasonable period of time prior to adoption by the lead agency of the negative declaration. Notice shall be given to all organizations and individuals who have previously requested such notice and shall also be given by at least one of the following procedures: [fl] (1) Publication at least one time by the lead agency in a newspaper of general circulation in the area affected by the proposed project, [fl] (2) Posting of notice by the lead agency on and off site in the area where the project is to be located, [jf] (3) Direct mailing to owners of property contiguous to the project as such owners are shown on the latest equalized assessment roll.” (Cal. Admin. Code, tit. 14, § 15072; italics added.)
In this case, evidence was introduced to show that notice of the hearing of the Board of Supervisors and of Board’s intention to adopt a negative declaration for the Hilltop Center project was published in a newspaper of general circulation in Amador County. There is nothing in the record to suggest that either Borgh or CAC had previously requested notice but failed to receive it. Board gave notice of its intent to adopt a negative declaration as required by law and in a form calculated to come to the attention of members of the public, including Borgh and CAC, and to provide them with sufficient information on the matter to permit them to decide whether or not to participate in the proceedings. (See Lent v. Tillson (1887) 72 Cal. 404, 413-414 [14 P. 71].)
The remaining case law exception which may be relevant here involves the issue of standing required by section 21177, subdivision (b). Plaintiffs do [345]not contend they personally appeared at the administrative hearings. Plaintiffs’ reliance on Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886 [236 Cal.Rptr. 794] is misplaced. In that case the court recognized at page 894 that for the doctrine to be satisfied the exact issues must have been presented to the administrative body, citing Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197 [200 Cal.Rptr. 855]. These cases, however, do not hold that if the issue requirement is satisfied (§ 21177, subd. (a) as applicable to this case) the standing to sue requirement is also obviated. Plaintiffs must also plead and prove a judicial exception to the standing requirement. Plaintiffs rely on Environmental Law Fund, Inc. v. Town of Corte Madera, supra, 49 Cal.App.3d 105, claiming they are members of the public seeking to redress a public wrong. Whether or not the allegations of plaintiffs’ petition were sufficient to bring them within the exception is irrelevant. The allegations were denied in the answer filed, and plaintiffs concede no evidence was adduced on the issue. Plaintiffs’ position fails from lack of proof. (Kane v. Redevelopment Agency (1986) 179 Cal.App.3d 899, 902 [224 Cal.Rptr. 922].) The trial court so found and was obviously correct in concluding plaintiffs had failed to exhaust their administrative remedies and are precluded from pursuing this action.
The judgment is affirmed.
Puglia, P. J., concurred.
Public Resources Code, division 13, section 21000 et seq.
A negative declaration is a written statement by the responsible public agency that a proposed project will not have a significant impact on the environment and does not require the preparation of an environmental impact report. (Pub. Resources Code, § 21064.)
The requirement cannot be overcome by stipulation between the parties or by admission. (Miller v. Department of Alcohol Bev. Control (1958) 160 Cal.App.2d 658, 663-664 [325 P.2d 601].)
Plaintiff “Friends of Mammoth” was “an unincorporated association of hundreds of resident and nonresident owners of lots or mountain residents at Mammoth Lakes, Mono County, California.” (Friends of Mammoth v. Board of Supervisors, supra, 8 Cal.3d at p. 253, fn. 2.)
Subdivision (d) provides that section 21177 does not apply to the Attorney General.
County and real parties in interest have moved the court to take judicial notice of certain legislative material relating to Assembly Bill 2583. The court may consider pertinent legislative history and take judicial notice of it. (Evid. Code, §§ 459, subd. (a)(2), 452, subd. (c); see Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 218-219 [185 Cal.Rptr. 270, 649 P.2d 912]). All of the materials presented, however, support the conclusion that section 21177 was intended to preclude the maintenance of an action by a person who did not personally object to the approval of the project by presenting the alleged grounds for noncompliance with CEQA to the agency orally or in writing. None of the materials contains any discussion of section 14.5 of the bill. The materials are therefore not relevant to a consideration of how section 21177 may be modified by the declaration of legislative intent contained in section 14.5.
Pursuant to plaintiffs’ motion therefor, we take judicial notice of the Certificate of Amendment of the Articles of Incorporation of the California Aviation Council, an official record of the Office of the Secretary of State. (See People v. Haugh (1963) 216 Cal.App.2d 603, 606 [31 Cal.Rptr. 74].) It shows CAC was in existence on October 9, 1982. In all other respects plaintiffs’ motion for judicial notice is denied.
Under CEQA the Office of Planning and Research is required to prepare and develop guidelines for the statute’s implementation by public agencies. (Pub. Resources Code, § 21083.) The guidelines are contained in California Administrative Code, title 14, section 15000 et seq.