Judicial Standards of Review

Before a court determines if findings are faulty, sufficient, or even necessary, it must first determine whether the agency's decision is adjudicative or legislative. This in turn determines which judicial standard the court will use to review the decision. California courts use one of two different standards of review depending on the nature of the decision. For legislative acts, a court will apply the so-called "traditional mandamus" standard in Section 1085 of the Code of Civil Procedure (CCP), reserving the "administrative mandamus" standard in Section 1094.5 of the same code for adjudicative decisions.

Although statutes may designate which standard of review applies to given decisions, courts routinely examine the nature of the decision itself before determining the proper standard of review. (City of Chula Vista v. Superior Court(1982) 133 Cal.App.3d 472, 486.) Therefore, statutory designations of the judicial standard of review do not automatically categorize a decision, and the courts are not obligated to observe them.

Traditional Mandamus (or Ordinary Mandamus)

When a party challenges a legislative act the court will use traditional mandamus, a deferential standard of review, to determine:

1. Whether the action was arbitrary, capricious, or entirely lacking in evidentiary support; or,

2. Whether the legislative body has failed to follow the procedures and give the notices required by law.

In decisions affecting land use, the courts have unwaveringly employed this approach, first in Miller v. Board of Public Works (1925) 195 Cal. 477, 490, later in Acker v. Baldwin (1941) 18 Cal.2d 341, 344, and in Swanson v. Marin Municipal Water District (1976) 56 Cal.App.3d 512, 519. These courts held that they will not invalidate a legislative action unless it is unreasonable, lacking a rational basis, or unless the notice of hearing was defective or nonexistent.

In addition, if there is even one reasonable argument supporting the action, the court traditionally will defer to the legislative body and uphold the decision. Although courts consider a legislative act's reasonableness, they generally refuse to impose their judgment because a legislative body's action is presumed valid as it carries out its constitutional power to promote the general health, safety, morals, and welfare of the community. (Evidence Code Section 664 and Miller, supra at p. 477.)

The second element of traditional mandamus review concerns observance of legally prescribed procedure. Failure to give notices of public hearings required by law constitutes such an improper procedure, (Brock v. Superior Court (1952) 109 Cal.App.2d 594, 605) as does a notice "so defective as to be misleading." (O.T. Johnson Corp. v. City of Los Angeles (1926) 198 Cal. 308, 319.) In keeping with these longstanding precedents, the California Court of Appeal more recently invalidated a county's variance approval because its hearing notice did not apprise the recipients of the full proposal. The court concluded that an inaccurate notice is no notice at all. (Drum v. Fresno County Public Works Department (1983) 144 Cal.App.3d 777.)

The courts have consistently applied the traditional mandamus standard of review for local legislative actions, and have further ruled that such actions do not require findings to justify them. Time and again, case law has confirmed that findings are not needed for rezoning actions unless statutorily required. (Williams v. City of San Bruno (1963) 217 Cal.App.2d 480, 489-490; Orinda Homeowners Committee v. Board of Supervisors (1970) 11 Cal.App.3d 768, 774; and Ensign Bickford, supra at 473.) Also, annexations do not require findings because of their legislative nature. (City of Santa Cruz v. LAFCO (1978) 76 Cal.App.3d 381, 389.)

However, the Legislature on occasion has imposed findings requirements upon certain legislative actions. For example, legislation originally enacted in 1980 requires findings for general plan amendments and zoning ordinances that limit the number of housing units that can be built annually in a given jurisdiction (Government Code Sections 65302.8 and 65863.6). Because these statutes govern legislative actions, and because legislative actions typically do not require findings, much speculation about how courts would treat such findings has ensued.

Administrative Mandamus

Administrative mandamus is the standard of review that courts apply to adjudicative decisions. It asks (1) whether the agency has proceeded without or in excess of its jurisdiction, (2) whether there was a fair hearing, and (3) whether there was any prejudicial abuse of discretion. The first two of these inquiries are similar to the court's inquiries under the traditional mandamus standard of review. The administrative review is far stricter, however, and is limited to the administrative hearing record, such as staff reports, public testimony, minutes, resolutions, and other submitted documents and exhibits. The major difference between the two standards is the inquiry into prejudicial abuse of discretion.

To establish abuse of discretion, courts will focus on whether the agency proceeded in the manner required by law, whether the agency's findings support its decision, and whether the evidence supports the findings. The reviewing court will employ one of two tests in its inquiry. The independent judgment test is used when the challenged decision involves a fundamental vested right. The substantial evidence test is used in all other cases.

Substantial Evidence Test

In the substantial evidence test, the court reviews administrative decisions for complete links between data, analysis, and final decision. The substantial evidence test requires that agencies make findings for all adjudicative decisions in order to "bridge the analytical gap between the raw evidence and ultimate decision" as the Topanga decision noted in 1974. The court will uphold an agency's action where the evidence, taken in light of the whole record, substantially supports the agency's findings or decision. The "whole record" consists of the testimony, staff reports, hearing transcripts, minutes, letters to the agency, commission, or legislative body, and all other material submitted for consideration before or during the hearing. "Substantial evidence" means just that, and should not be interpreted as merely any evidence. By definition, substantial evidence clearly implies that it must be of ponderable legal significance (Estate of Teed (1952) 112 Cal.App.2d 638, 644). As stated in Teed, substantial evidence "'...must be reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires in a particular case...'" (supra). Further, in accordance with long established administrative law precedents, findings based on insufficient evidence may result in the court remanding the matter to the agency to take further evidence. (Keeler v. Superior Court (1956) 46 Cal.2d 596, 600.)

In contrast, the traditional mandamus standard restricts the level of judicial scrutiny to a lower threshold. As a result, local legislative actions remain virtually invulnerable and will likely withstand legal challenges more easily than adjudicative actions.

Independent Judgment Test

When a fundamental vested right is at stake, the reviewing court will exercise its independent judgment to determine whether an agency's findings are supported by the weight of the evidence. This review is likened to a limited trial de novo - a new hearing in which new evidence and testimony are permitted. While the court is confined to the administrative record, it reviews the evidence afresh and is not bound by the local agency's findings.

Predictably, the court is often called upon to determine whether a local decision has implicated a fundamental vested right. Courts have noted that vesting for the purposes of administrative mandamus review is different from vesting in the land use context. (McCarthy v. California Tahoe Regional Planning Agency (1982) 129 Cal.App.3d 222.) The judicial reviewer looks to see if an existing right is being withdrawn or compromised while the land use applicant seeks to acquire a right, usually through the permit process. An apartment owner for example, has no fundamental right to convert the units to condominiums. (Rasmussen v. City Council of the City of Tiburon (1983) 140 Cal.App.3d 842.) Nor does a subdivider have a fundamental right to a final map based on an approved tentative tract map where conditions of approval remain unsatisfied. (Del Mar v. California Coastal Commission (1984) 152 Cal.App.3d 49.) [See note 1 below] Neighbors who claim a project will affect them adversely have no fundamental vested rights at stake. (Guardians of Turlock's Integrity v. Turlock City Council (1983) 149 Cal.App.3d 584.) [See note 2 below] Landowners have no fundamental right to dispose of their land through gift deeds creating distinct salable parcels without following the Subdivision Map Act. (Pescosolido v. Smith (1983) 142 Cal.App.3d 964.)

Appellate Review

A trial court will review an agency's decision under either the substantial evidence or independent judgment test. The appellate court always conducts a substantial evidence review. Where the trial court has exercised its independent judgment, the appellate court will consider whether the trial court's findings are supported by substantial evidence. Where the trial court applied the substantial evidence test to an agency's findings, the appellate court will likewise look for substantial evidence to support the agency's action.

Principles Regarding Standards of Review

Traditional mandamus for legislative decisions and administrative mandamus for adjudicative decisions are easily distinguished in California statutes. The distinction is less clear in practice. The fact that a legislative body is the decisionmaker is not a reliable indicator as to which kind of decision has been made. In many instances, locally elected bodies sometimes act in both legislative and adjudicative capacities. For example, a city council or board of supervisors may perform a legislative function by adopting a general plan or a zoning ordinance. But the same body may also perform an adjudicative function, perhaps during the same meeting by acting on a tentative subdivision map, use permit, or variance. In Sierra Club v. Hayward (1980) 28 Cal.3d 840, for example, the State Supreme Court set aside a Williamson Act contract cancellation by the Hayward City Council. It held that contract cancellations are adjudicative acts reviewable under Code of Civil Procedure Section 1094.5, in spite of the fact that the City Council often sits as a legislative decision making body. Courts have shown that they will use the administrative mandamus standard of review for any adjudicative act, regardless of the type of body that makes the decision.

Further, the distinction between ministerial and discretionary acts does not provide a sure signal that courts will use one standard of review over the the other. Planners frequently refer to ministerial acts as mechanical, in-house procedures which can be approved by staff, such as zoning clearances and building permits without conditions of approval. Traditional mandamus is the proper means to compel an agency to perform a ministerial act. (Kirk v. County of San Luis Obispo (1984) 156 Cal.App.3d 453.) To the judicial reviewer, however, a permit is discretionary if any conditions or qualifications bar its immediate issuance. A building permit, therefore, is discretionary if it has a condition that school impact fees be paid prior to issuance. A developer challenging the condition uses administrative mandamus. (McLain Western #1 v. County of San Diego (1983) 146 Cal.App.3d 772.) Once the fees are paid and no conditions remain, the developer uses traditional mandamus to compel issuance of the permit. To be safe, some attorneys recommend to their local planning agencies that they use findings to support every discretionary action that may significantly affect the developer or the public.

Legal observers concede that the distinctions between adjudicative and legislative decisions are not often clear. Through the intersection of land use law with administrative law, California cases reflect the judiciary's infrequent attempts to distinguish between adjudicative and legislative land use decisions. Rare is the case that overturns a precedent establishing a given land use decision as either adjudicative or legislative. Even rarer is the case that performs a "double reversal," resulting in the reversal of a case so that a ruling is restored to is original precedent-setting status. One of these rare double-reversals came in a 1984 Court of Appeal decision. The court overturned a case which itself had overturned an early line of cases, and in the process confirmed earlier decisions that road abandonments are legislative acts. (Heist v. County of Colusa (1984) 163 Cal.App.3d 841.) Heist overturned City of Rancho Palos Verdes v. City Council (1976) 59 Cal.App.3d 869, which held that street abandonments are adjudicative acts. Rancho Palos Verdes had overturned Ratchford v. County of Sonoma (1972) 22 Cal.App.3d 1056. Heist restored Ratchford, which held that vacation of a city street is a legislative act, supporting a long line of cases dating back to the 1890s. While the distinction between legislative and adjudicative acts remains unclear, case law has produced several principles to guide local planning agencies on standards of judicial review.

1. When a decision making body makes both adjudicative and legislative decisions simultaneously, judicial review must follow the more stringent standard of administrative review.

In Mountain Defense League v. Board of Supervisors of San Diego County (1977) 65 Cal.App.3d 723, 729, the Court ruled that when two decisions are made simultaneously, one requiring findings (a private development permit) and the other not requiring findings (a general plan amendment), only one set of findings is necessary. However, judicial review of the entire decision must follow the more stringent administrative mandamus standard.

2. When a decision is both legislative and administrative, courts will determine which standard prevails and will apply the judicial review accordingly.

Local coastal plans (LCPs) adopted pursuant to the Coastal Act are the best example of decisions which are both adjudicative and legislative. The local agency uses its LCP as a general plan for its coastal zone. That same LCP is reviewed by the Coastal Commission for consistency with the Coastal Act much the same way that a local agency adjudicatively reviews a development request for consistency with the general plan. Following a detailed analysis, the Court of Appeal concluded that Coastal Commission certification of an LCP is an administrative act reviewable under Code of Civil Procedure 1094.5. (City of Chula Vista, supra, p. 488.)

More recently the California Supreme Court showed how narrowly the courts analyze threshold decisions. The court ruled that when a city amended its LCP by approving a land use plan change, rezoning, and specific plan, it clearly acted in its legislative capacity. (Yost v. Thomas (1984) 36 Cal.3d 561, 571.) The statewide policy mandate of the Coastal Act and the Coastal Commission's subsequent administrative review of the changes do not transform the City's legislative act into an administrative one.

3. A court may decline to decide the threshold issue of whether an act was adjudicative or legislative if it can dispose of the case by rendering a decision on other grounds.

A city's bad faith refusal to issue a business license entitled an applicant to relief one way or another, irrespective of which form of mandamus was appropriate. (Kieffer v. Spencer (1984) 153 Cal.App.3d 954.) In another case, a city treated its consent to a private condemnation action as adjudicative and the court found its decision to satisfy the stricter administrative standard. (L & M Professional Consultants Inc. v. Ferreira (1983) 146 Cal.App.3d 1038.) Although the court analyzed the decision as if it were adjudicative, it stopped short of actually identifying it as such. Further, it determined that it did not need to resolve the issue of whether the city's consent really was administrative or not. (L & M Professional Consultants, Inc., supra at p. 1054.) By the same token, several other California decisions have reviewed redevelopment agency findings of blight and redevelopment plan adoptions as if they were adjudicative -- with findings supported by substantial evidence -- but stopped short of identifying them expressly as such. (Emmington v. Solano County Redevelopment Agency (1987) 195 Cal.App.3d 491; Fosselman's, Inc. v. City of Alhambra (1986) 178 Cal.App.3d 806; National City Business Association v. City of National City (1983) 146 Cal.App.3d 1060; Regus v. City of Baldwin Park (1977) 70 Cal.App.3d 968; and In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21.)

4. Statutes may limit the right to judicial review.

Specific statutory time frames govern how soon a party must file lawsuits challenging certain types of land use decisions. For example, the Subdivision Map Act allows 90 days to challenge a Map Act decision, while the Coastal Act allows a 60 day challenge period. The right to judicial review is waived if not exercised within these statutory limits. (Griffis v. County of Mono (1985) 163 Cal.App.3d 414, Kirk v. County of San Luis Obispo (1984) 156 Cal.App.3d 453, Leimert v. California Coastal Commission (1983) 149 Cal.App.3d 222.)

5. Where a statutory remedy is explicitly provided, judicial review must address its applicability.

Under the hierarchical relationship of land use laws, land use permits are issued pursuant to a zoning ordinance which must be consistent with a general plan. Challenging the validity of a use permit on the basis of a defective general plan also challenges the zoning ordinance under which the permit was issued. (Neighborhood Action Group for the Fifth District v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1184.) Since Government Code Section 65850(b) provides an explicit remedy for residents or property owners to enforce compliance of ordinances with the general plan, any judicial review must consider this remedy even if it is ultimately found inapplicable. (Neighborhood Action Group, supra at p. 1187.)

6. A combination of administrative and traditional mandamus may be necessary in some cases.

Government Code Section 65750 provides for traditional mandamus as the exclusive means to challenge the adequacy of a general plan. Where a permit may be invalid because of a defective general plan, however, the adequacy issue may also be addressed through administrative mandamus action on the permit. A challenge to a conditional use permit on the grounds that the county's general plan was deficient has to include not only traditional mandamus to satisfy Section 65750 but also administrative mandamus to review the permit. (Neighborhood Action Group, supra at p. 1176.)

A variation on this situation may arise where a project involves a series of approvals. One kind of review may be pursued at one step in the process and the other kind at a later step. For example, traditional mandamus is appropriate to review a resolution of necessity which identifies property to be condemned. (Code Civil Procedure Section 1245.255.) The inclusion of a particular property may also be attacked in the subsequent eminent domain proceedings through administrative mandamus procedures. (Huntington Park Redevelopment Agency v. Duncan (1983) 142 Cal.App.3d 17.)

7. Courts have honored statutory variations on basic mandamus standards.

As discussed earlier, courts will examine an agency's action to determine whether it is legislative or administrative even when the statute specifies one or the other review. (City of Chula Vista, supra at p. 486.) Some statutes, however, prescribe a standard of review which reflects past judicial decisions but varies the scope of review. A resolution of necessity may be invalidated in an eminent domain action if the reviewing court finds gross abuse of discretion (Code of Civil Procedure 1245.255(b)). The administrative mandamus statute, Code of Civil Procedure Section 1094.5, however, does not require that the abuse of discretion be gross. Another example of statutory deviation from the administrative mandamus standard is found in the California Environmental Quality Act (CEQA). Public Resources Code Section 21168 specifically proclaims Code of Civil Procedure Section 1094.5 review for administrative decisions under CEQA. But then the section goes on to forbid the court to exercise its independent judgment. So far, the variant scope of review has not been directly at issue before the courts, but in the fertile field of land use litigation, it is a question to be watched.

8. CEQA decisions reviewed under either Public Resources Code Sections 21168 or 21168.5 are subject to the substantial evidence test.

Implicit in these provisions is the determination that all CEQA determinations are adjudicatory. It's not altogether clear why separate provisions for judicial review were made when the ultimate scope of review is virtually the same.

9. Statutory findings requirements do not automatically categorize a land use decision as adjudicative; courts have the final say as to its classification.

The Legislature often requires that specific findings accompany certain land use decisions. Specific statutory findings requirements are commonplace for adjudicative decisions but rare for legislative decisions. In fact, statutory findings requirements for legislative land use decisions did not exist at all until findings for EIRs came to be required under CEQA. Subsequently, Government Code Sections 65302.8 and 65863.6 required findings for mandated general plan elements or plan amendments and rezoning which had the effect of limiting the number of housing units that could be constructed annually. It is important to note, however, that a statutory findings requirement does not automatically categorize the decision as adjudicative, resulting in the court applying the administrative mandamus standard of review. Rather, the court will consider all relevant circumstances surrounding the decision, with an emphasis on function rather than process, to decide the appropriate standard of review. (City of Chula Vista, supra at p. 488.)

Land Use Control by Initiative and Referendum

California voters have often used initiatives to establish direct control of land use decisions. These voter approved actions are restricted to legislative types of actions of planning and zoning, but may not be used for adjudicatory acts. (Arnel Development Company v. City of Costa Mesa (1980) 28 Cal.3d 511; Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 170.) Until recently, from the perspective of local land use decisions, the fundamental issue had been whether an initiative must contain any statutory findings that would be required of a city council or board of supervisors, if the same actions were approved by the council or board.

As mentioned on page 3, Government Code Sections 65302.8 and 65863.6 require findings that justify reducing regional housing opportunities before any zoning ordinance or mandatory general plan element may be adopted or amended to limit the number of housing units that may be built annually. These statutes are silent as to their applicability to actions taken by initiative. However, a recent California Supreme Court decision held that Government Code Section 65863.6's findings requirements for growth-limiting zoning ordinances do not not apply to initiatives, because otherwise, the requirement "would place an insurmountable obstacle in the path of the initiative process and effectively give legislative bodies the only authority to enact this sort of zoning ordinance." (Building Industry Association v. City of Camarillo (1986) 41 Cal.3d 810, 824.)

Case law has also established that California voters may also intervene in local land use planning through the referendum. (Yost v. Thomas (1984) 36 Cal.3d 561.)

NOTE 1:
In 1984 and 1985 the Legislature amended the Subdivision Map Act to create vesting tentative maps (Government Code Sections 66498.1-66498.9: Statutes of 1984, Chapter 1113; Statutes of 1985, Chapter 995; and Statutes of 1986, Chapter 613). The new provisions confer a right to develop according to the approved tentative map without the risk that conditions will be added or changed at the parcel/final map or time extension stages (Government Code Section 66498.1). Future legal challenges will determine whether an approved vested tentative map confers a fundamental vested right for judicial review purposes. [back to text]

NOTE 2:
Editorial modifications (1984) 150 Cal.App.3d 1141c. [back to text]

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OTHER GUIDELINES FOR MAKING FINDINGS
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Prepared by:
State of California
Governor's Office of Planning and Research
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