Burger v. County of Mendocino

Opinion

DRAPER, P. J.

This is another in the growing list of appeals concerning the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.).

The appeal in 1 Civil No. 33010 attacks the trial court order of December 7, 1972, which dissolved an order of October 19, 1972, which continued, in effect a temporary restraining order issued September 29, 1972, staying enforcement of a minor subdivision approval and a building permit, and finding that an environmental impact report was required. The dissolution order was stayed by the Court of Appeal, and the EIR was in fact prepared and filed.

[325]

The order vacating that restraint was based upon emergency legislation (Pub. Resources Code, §§ 21169, 21170) which validated certain governmental actions otherwise subject to the C.E.Q.A. Subdivision (b) of section 21170, however, provides that the validation provision does not apply to any project “which had been determined in any judicial proceeding, ... to be illegal, . . . because of noncompliance with this division.” Here, the trial court, after hearing, had continued in effect its order restraining any act toward development of the property. This was well in advance of the effective date of section 21169. This order “determined” that C.E.Q.A. applied to this project. (See

People

v.

Escobar,

122 Cal.App.2d 15, 17 [264 P.2d 571].) This determination, of course, was not final. But section 21170, subdivision (b) rather pointedly refrains from requiring a “final” determination. Respondents also seek the benefit of subdivision (a) of section 21170, which directs validation if, before commencement of legal proceedings and in reliance upon the permit, “substantial construction has been performed and substantial liabilities for construction and necessary materials have been incurred.” Respondents filed an unverified list of “expenditures incurred pursuant to county entitlement prior to litigation,” totalling some $8,000 but $1,585 of the amount was for permits—obviously not an item of actual construction or necessary materials. Only the item of $493 for “site preparation” was for construction. It is hardly “substantial” under the circumstances. Some $971 is claimed for “surveying,” $3,900 for “engineering” and $1,005 for “design consultation.” There may well be room to doubt that these expenditures were made after and in addition to the engineering and design work necessarily required in applying for the building permit, and thus were incurred in the period of less than three full days between issuance of the building permit and institution of the mandate proceeding. (The temporary restraining order was issued on the same day suit was filed.) In any event, the expenditure of some $6,500 does not constitute “substantial” construction or liability for construction or material of an 80-unit motel complex. Hence section 21169, as modified by section 21170, cannot avail respondents. Issuance of the building permit was not validated by the statute, and the order dissolving the restraint was erroneous.