Day

John and Gertrude Day, residents of the City of Glendale, appeal the denial of a writ of mandate sought to compel respondent city to amend its environmental guidelines and require an environmental impact report as a condition for issuance of a grading permit to real-parties-in-interest Kirst-MacDonald-Hensler, a joint venture.

Real-parties-in-interest Hensler and MacDonald own 70 acres of undeveloped land in the San Raphael Hills of Glendale adjacent to the site of a proposed state highway. They joined with others to form the joint venture that won the state contract to construct the proposed highway. In March 1974 respondent City of Glendale issued a grading permit authorizing the joint venture to fill canyons on the Hensler and MacDonald land with 1,556,000 cubic yards of material to be excavated in the highway construction project. The permit also authorized grading *820 and movement of 343,000 cubic yards of material to be cut from a ridge to form a notch—420 feet wide at the top, 70 feet wide at the bottom, and flanked by one-to-one grade slopes cut from 100 to 200 feet—which would permit the extension of an adjacent Glendale street into the leveled Hensler and…

I dissent.

The majority declares that “the critical issue on appeal is whether issuance of the grading permit was for a discretionary or ministerial project within the meaning of CEQA.” I respectfully disagree for I believe that a more fundamental issue and one dispositive of this case is: “Is the ordinance of the City of Glendale unconstitutional or clearly violative of any statutory prohibition?” In my view no constitutional infirmity and no violation of any statutory prohibition has been demonstrated by appellant or amicus curiae.

*825 The basic fundamental law, Public Resources Code section 21080, 1 clearly provides that CEQA shall apply to discretionaiy projects not to ministerial projects. In the (admittedly nonexclusive) listing of discretionary projects, section 21080, subdivision (a), does not include the issuance of a grading permit. 2 The statute authorizes and provides that guidelines shall be established and adopted by the Resources Agency of California. The guidelines thus adopted by the Resources Agency, 14 California Administrative Code, section 15032, lists projects which in most instances will be deemed ministerial. Again the list is not exclusive and the…

Melby & Anderson, Henry Melby, Monteleone & McCrory and Michael Maroko for Real Parties in Interest and Respondents.

OPINION

FLEMING, J.

John and Gertrude Day, residents of the City of Glendale, appeal the denial of a writ of mandate sought to compel respondent city to amend its environmental guidelines and require an environmental impact report as a condition for issuance of a grading permit to real-parties-in-interest Kirst-MacDonald-Hensler, a joint venture.

(1) Real-parties-in-interest Hensler and MacDonald own 70 acres of undeveloped land in the San Raphael Hills of Glendale adjacent to the site of a proposed state highway. They joined with others to form the joint venture that won the state contract to construct the proposed highway. In March 1974 respondent City of Glendale issued a grading permit authorizing the joint venture to fill canyons on the Hensler and MacDonald land with 1,556,000 cubic yards of material to be excavated in the highway construction project. The permit also authorized grading and movement of 343,000 cubic yards of material to be cut from a ridge to form a notch — 420 feet wide at the top, 70 feet wide at the bottom, and flanked by one-to-one…