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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from June, 2014


Appellate Court Rejects Challenge to Walmart Supercenter Under Res Judicata and Calls Decision Not to Dismiss Appeal as Frivolous a Close One

Thursday, June 26th, 2014

In Roberson v. City of Rialto, (2014) Cal. App. LEXIS 532, the Court of Appeal for the Fourth District affirmed the denial of a writ of mandate challenging the City of Rialto’s approval of a Wal-Mart Supercenter and shopping center in the city. However, the court declined to dismiss the appeal as frivolous and denied a motion to sanction the appellant in what the court referred to as a “close one.” The opinion was initially filed as unpublished, but was switched to published at the request of Sonoma County Counsel.

The appellant Roberson, a citizen of the City of Rialto in San Bernardino County, filed the petition pursuant to California Government Code sections 65090 and 65094, which require the notice of a public hearing to include “a general explanation of the matter to be considered.” Roberson contended that the City of Rialto’s approval of a Walmart Supercenter was defective because the notice for the meeting failed to include the planning commission’s recommendations. The court upheld the denial of the writ for two independent reasons.

First, the court found that Roberson had not demonstrated any reversible error by the trial court. All parties agreed that the notice was defective, but Roberson contended that had he known of the planning commission’s recommendations, he would have submitted comments urging the City Council to reject the project. Yet, Roberson did not state what comments he would have submitted or why those comments would have made it probable that the City Council would reject the project. As a result, Roberson failed to show that the trial court had erroneously disregarded any evidence of prejudice that would justify a reversal.

Second, the court found that Roberson’s claim was barred by res judicata, which requires a court to find 1) the issue before the court is identical to a previously litigated issue; 2) the prior proceeding resulted in a final judgment on the merits; and 3) the party in the present case is in privity with the party in the prior proceeding. In a previous case, Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, a community group representing the citizens of Rialto challenged the validity of the same meeting notice. The court in that case ultimately found no evidence of prejudicial error.

Roberson conceded that Rialto Citizens resulted in a final decision on the merits, but he contended that his claim was unique because he never actually opposed the project at the hearing, in contrast to the Rialto Citizens group that had submitted comments. However, the court found that the issues were still identical because both parties sought to show prejudice in the defective notice and Roberson could not show how his comments to the City Council would have been any different from the Rialto Citizens group’s comments.

Roberson claimed that he was not in privity with the plaintiff in Rialto Citizens because he was not a member of the organization and brought his case in his own interest rather than the public interest. Still, the court found that Roberson’s interests were adequately represented by the Rialto Citizens group and Roberson failed to show that he suffered any harm different than the harm to the community. As a result, the court found an “identification in interest” between Roberson and the Rialto Citizens group and barred his claim under res judicata.

Finally, the court considered a motion to dismiss the appeal as frivolous and sanction Roberson with $12,860 in attorney’s fees from the real party in interest, Walmart. The court denied the motion but stated that the issue was “a close one.” The court explained that an appeal should only be considered frivolous if it is carried forward for the purpose of harassment or delay, or when any reasonable attorney would agree the appeal is indisputably without merit.  Here, the court found that reasonable attorneys could agree that because Roberson was a private citizen and not a member of the Rialto Citizens group, his appeal may have had some merit. Additionally, Walmart had agreed with Roberson to withdraw a proposed judgment at trial pending resolution of the Rialto Citizens case, and thus was partially responsible for the four year delay in entry of judgment.

KEY POINTS

Under the doctrine of res judicata, a private citizen can be in privity with a community group that he is not a member of when the citizen cannot show how the harm he suffered differed from the harm suffered by the community. Absent clear intention of delay or harassment or an appeal that is indisputably meritless, courts will decline to find that an appeal frivolous and sanctionable under California Rules of Court, rule 8.276(a)(1).

California Appellate Court Upholds Expansion Plan for Landfill in Suisun Marsh

Friday, June 20th, 2014

In SPRAWLDEF v. San Francisco Bay Conservation & Development Commission, 2014 Cal. App. LEXIS 469, the Court of Appeal for the First Appellate District reversed the trial court’s decision to grant a petition for a writ of mandate challenging the San Francisco Bay Conservation and Development Commission’s approval of an expansion plan for the Potrero Hills Landfill in the Suisun Marsh in Solano County.

Waste Connection, Inc., which operates the Potrero Hills Landfill, first proposed expanding the landfill in 2003. Two years later, Solano County issued a use permit and marsh development permit for the expansion. Despite requiring relocation of a seasonal stream known as Spring Branch near the landfill, Solano County concluded the EIR was consistent with the Suisun Marsh Preservation Act and the Solano County Local Protection Plan.

Solano County’s decision was appealed to the San Francisco Bay Conservation and Development Commission (the Commission), which has jurisdiction over all planning and permitting decisions for projects affecting the San Francisco Bay. The Commission reviewed Solano County’s decision de novo and conducted its own environmental review of the project impacts. The Commission’s scientists found in 2007 that the impacts to Spring Branch were different from the hydrology report prepared in connection with the EIR and asked Waste Connections to explore more alternatives for reducing the size of the expansion.

The results of this analysis were included in a 2009 report submitted to the Army Corps of Engineers and the Commission. The report considered sixteen off-site alternatives and four on-site alternatives. The proposed expansion would add 167 acres to the landfill’s footprint, increase the capacity of the landfill by 41.43 million tons at a cost of $2.66 per ton, and extend the life of the landfill by 35 years. In comparison, all but one alternative extended the life of the landfill by less than ten years and cost at least 50 percent more per ton. The Commission was particularly interested in an alternative that would add 127 acres to the landfill’s footprint, increase the landfill’s capacity by 29 million tons, and extend the life of the landfill by 25 years. However, Waste Connections determined this 127-acre alternative would result in a decrease in gross revenue by 45 percent.

Waste Connections explained to the Commission that because the costs of expansion are largely fixed, there would only be a 10 percent decrease in the cost of the project under the 127-acre alternative, which made it not financially viable given the significant decrease in gross revenue. As a result, the Commission approved the expansion proposal with a slight modification prohibiting the landfill from increasing in height.

The Sustainability, Parks, Recycling and Wildlife Legal Defense Fund (SPRAWLDEF) challenged the Commission’s finding that there was no reasonable alternative to Waste Connections’ proposal. Under the Suisun Marsh Preservation Act, a local government can only issue a marsh development permit if the local government finds that the project is in conformity with the local protection program. SPRAWLDEF contended that the Commission violated Solano County Ordinance section 31-300, which prohibits filling natural channels in the Suisun Marsh unless there are no reasonable alternatives. The trial court reversed the Commission and found that the Commission’s determination that the 127-acre proposal was not economically reasonable was not supported by substantial evidence.

The appellate court though relied on CEQA’s meaning of “no feasible alternative” to interpret the meaning of “no reasonable alternative” in section 31-300. The court analogized to Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, in which a winemaker explained that the proposed project was the only place on the property to construct a facility of the size and layout necessary to meet the needs of the business. The court in Sierra Club found that although more information could have been included, there was substantial evidence that any alternative would not be economically feasible. Similarly, the court in this case found that Waste Connections had explained why the 127-acre alternative reduced costs only 10 percent but reduced revenue by 45 percent and thus was not a reasonable alternative.

The court distinguished the case from Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167 and Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, in which there was no opportunity for the local government to make a meaningful comparison because no economic data on the alternative was available. The court recognized the determination as to whether evidence is sufficient depends on the context of the case and noted that Waste Connections did not make a “bald assertion” regarding the economic feasibility of the 127-acre alternative. Instead, the Commission had adequate information to fairly determine that the proposed alternatives were not economically reasonable. As a result, there was no basis for the trial court to conclude that Waste Connections had to produce significantly more economic data on the 127-acre alternative.

The court also stated that there was no merit to SPRAWLDEF’s argument that Waste Connections’ economic information should be discounted because it was prepared by Waste Connections. The Commission had the discretion to determine the credibility of this evidence and just because evidence is self-serving does not make it less credible.

KEY POINT

The court applied the same standard for “feasibility” of alternatives under CEQA to “reasonableness” of alternatives under a Solano County ordinance that prohibits filling natural channels in the Suisun Marsh unless there are no reasonable alternatives. When comparing alternatives, it is vital that the court have some economic data on alternatives to actually compare to, even if that data is less robust than the data for the primary proposal. Additionally, the data should not be ignored or discounted simply because it is self-serving and prepared by the party seeking approval of the project.

The Writing on the Wall – Court Denies Writ of Mandate Challenging Library Project

Tuesday, June 17th, 2014

In the unpublished case Friends of Appleton-Wolfard Libraries v. City and County of San Francisco, (2014) Cal. App. Unpub. LEXIS 3384, the Court of Appeal for the First District upheld the trial court’s denial of a writ of mandate challenging the City’s certification of a Final Environmental Impact Report (EIR).

The project consists of developing a library. The project would be implemented in two phases. Phase one would consist of the closure of traffic within the right of way separating the parcels to permit park expansion and the accommodation of a larger library. Upon completion of the new library, the existing library would be demolished and the site would be graded for development as open space as part of the adjacent Joe DiMaggio Playground, which would be redesigned and improved.

Petitioners first contend that the project violates the City Charter; as a non-recreational use, the new library should not be built on park property. While the City Charter did not define recreational or non-recreational uses, the Court recognized that for over a century, the Court has noted that uses including but not limited to hotels, restaurants, museums, and libraries were equally in the aid of the enjoyment of the public. (citing Spires v. City of Los Angeles (1906) 150 Cal. 64.) Thus, under California law, the use of public property for a library is not inconsistent with recreational land uses. Because the Court found that the project was not in violation of the charter, the Court also rejected the petitioner’s argument that the EIR’s project description was inadequate.

Petitioners then contend the project violates the City’s General Plan and that rebuilding the library would violate the City’s General Plan policies. Citing Sequoyah Hills Homeowners Assn. v. City of Oakland,(1993) 23 Cal.App.4th 704), the Court recognized that it is the “province of elected . . . officials to examine the specifics of a proposed project to determine if it would be ‘in harmony’ with the policies stated in the plan.” The Court, in determining whether the officials considered the applicable policies, applied the substantial evidence standard of review, noting that when a lead agency determines that a project is consistent with the General Plan, there is a strong presumption of “regularity.” Projects need not be in perfect conformity with every General Plan Policy, but be compatible with the plan. By closing the existing right-of-way separating the parcels and expanding the park and library, the Court found that the facts of the case showed that open space on the project was in fact increasing; the City could reasonably conclude the project would further the General Plan’s objectives and policies.

Finally, the petitioners challenge the EIR’s alternatives analysis, arguing that the City should have analyzed an additional alternative under which the existing library would be expanded to the north. Applying the substantial evidence standard, the Court found that the City identified sufficient alternatives given the constraints to development onsite.

Mining the Administrative Record for Answers: Appellate Court Reverses Trial Court for Ignoring Substantial Evidence and Making Improper De Novo Determinations on Quarry Project

Thursday, June 12th, 2014

In an unpublished decision, Citizens Advocating for Roblar Rural Community v. County of Sonoma, 2014 Cal. App. Unpub. LEXIS 3393, the Court of Appeal for the First District reversed the trial court’s decision granting a petition for writ of mandate that challenged County certification of a final environmental impact report (EIR) and issuance of necessary land use permits for an aggregate quarry.

In December 2010, the County of Sonoma certified an EIR for development of a 65-acre quarry pit for mining and processing of approximately 570,000 cubic yards of aggregate material annually.  Petitioner filed a petition for a writ of mandate challenging the county’s quarry project approvals in January 2011. The trial court granted the petition in part, finding that failure to study potential water quality contamination from a neighboring landfill resulted in factual conclusions unsupported by substantial evidence.  The trial court also found that mitigation measures were inadequate or constituted a prohibited deferral of mitigation, and that the EIR’s analysis of the impact of widening an access road on an adjacent creek was inadequate.

On appeal, the court reversed, finding that the trial court improperly ignored substantial evidence supporting the county’s actions and made improper de novo determinations.  First, with respect to petitioner’s argument that the EIR did not adequately study potential groundwater quality impacts, the EIR acknowledged the risk that contaminants from the landfill could seep into the quarry site as a result of mining operations.  Petitioner contended that the county should have conducted testing to determine the risk posed to regional water quality.  Instead, the county relied on groundwater monitoring well data and subsurface exploration to support its finding that the risk to groundwater quality was less than significant.  The court of appeal found substantial evidence supported the county’s conclusion, which must be upheld even if another conclusion could have been reached.

Next, the court addressed allegations that the EIR failed to properly analyze traffic mitigation.  The County concluded that roadway improvements on Roblar Road , which were required to mitigate traffic impacts, would have less than significant secondary impacts on the adjacent Americano Creek. The court found that the secondary environmental impacts of offsite mitigation measures, including widening of access roadways, were catalogued and discussed in significant detail in the EIR. Petitioner argued that the road widening was an integral aspect of the project as a whole requiring complete analysis. The court rejected this argument since this would eliminate any distinction between primary and secondary environmental impacts by making all proposed mitigation a “project component.”

Finally, petitioner contended that the EIR was inadequate because mitigation measures to address impacts to protected species did not describe, analyze, or mention the site of a required offsite mitigation preserve, precluding the county from determining if the mitigation was even feasible. The court found that the county did not defer mitigation because it properly identified a specific means of mitigating for the loss of habitat through the creation of habitat or preservation of existing habitat at a ratio consistent with state and federal law. The county could rely on future study to identify the particular details of mitigation measure implementation, including habitat location.

Key Point:

This case highlights the deferential treatment that courts give to lead agencies in reviewing EIR adequacy; despite the potential to arrive to alternate conclusions, the lead agency’s determination will be upheld as long as it is supported by substantial evidence. In addition, this case upholds reliance on later approvals from responsible agencies to mitigate for loss of habitat where the EIR species the impact and requires replacement of lost habitat in a manner consistent with state and federal law.

Appellate Court Upholds County’s Authority to Require Deposit for Costs of Certifying Administrative Record After the Petitioner Elects to Prepare the Administrative Record

Friday, June 6th, 2014

In an unpublished decision in Mt. Shasta Tomorrow v. County of Siskiyou 2014 Cal. App. Unpub. LEXIS 3445, the Third Appellate District upheld a trial court’s decision affirming Siskiyou County’s authority to require a deposit for the estimated cost of certifying the administrative record and denying a waiver request by the petitioner for the costs of the certification.

In the case, Mt. Shasta Tomorrow (MST) challenged Siskiyou County’s (the County) adoption of a zoning ordinance increasing various a CEQA petitioner to provide a deposit for the County’s estimated costs of preparing and certifying the administrative record. MST elected to prepare the administrative record and submit it to the County for certification pursuant to Public Resources Code, section 21167.6. While MST submitted the administrative record to the county for certification, MST did not pay the certification costs and ultimately asked for a waiver for the costs.

MST first argued that it was not required to pay any of the costs related to the administrative record because payment of a deposit for certifying the record conflicted with the CEQA rule awarding costs to the party that prevails at trial. However, the court noted that MST was confusing the issues between the award of costs to the prevailing party after the trial and the costs required to certify the record before litigation. CEQA explicitly provides that when the petitioner elects to prepare the record itself, as MST did in this case, the record is subject to certification and review by the agency and the petitioner is responsible for the costs of that review. (§ 21167.6, subd. (b).) The County’s costs to certify the record are incurred before trial, which is necessary to ensure an accurate record for a proper determination on the merits. In contrast, the costs of the prevailing party are determined after the trial, and are thus an entirely separate issue from the pretrial costs. As a result, it was proper for the County to require payment of the probable costs of certification and preparation of the record.

MST also contended that the $1,955.54 deposit required by the County was unreasonable. The County provided declarations detailing the time required to certify the record, and MST only referred to the costs of certification in other cases to refute the County’s estimate. The court reviewed the trial court’s decision under an abuse of discretion standard and found that the trial court did not abuse its discretion when it implicitly found that the costs were reasonable. The fact that the estimated costs of certification might end up being higher than the ultimate costs was not enough to find that the trial court abused its discretion. MST even stipulated to pay the deposit at one point in the proceedings and only later argued the costs were unreasonable. Therefore, the court held that the trial court did not abuse its discretion in finding that the costs to certify the record were reasonable.

MST also raised a policy argument that requiring payment of costs by the petitioner violated CEQA because it deterred public participation in the environmental review process. However, the court stated that the legislature rather than a court was the proper venue for such an argument. The legislature established that the challenger must pay to have the record prepared and certified and the court did not have the authority to hold otherwise.

Lastly, MST contended that the trial court erred in denying its request for a cost waiver. The court made two points in affirming the trial court’s denial. First, although MST repeatedly claimed it had no resources to pay the costs, it never provided any evidence to support the claim. Additionally, MST repeatedly violated court orders to pay the costs and even admitted that it was never going to be able to pay the costs. It was only after delaying for several months that MST requested the waiver. As a result, the court held that MST had no good faith intention of ever paying the costs and the trial court was justified in denying the waiver.

Many lead agencies have adopted ordinances requiring a petitioner to pay the lead agency’s costs to prepare the administrative record when the petitioner does not elect to prepare; far fewer ordinances expressly require a petitioner to pay a deposit for the lead agency to review and certify the administrative record after a petitioner elects to prepare the administrative record.  While the decision is unpublished it serves as a reminder that even where a petitioner elects to prepare the administrative record, the lead agency still bears the burden to review and certify the record.  Reviewing and certifying the administrative record is a time consuming task and nothing in CEQA prohibits a lead agency from developing an ordinance requiring a CEQA petitioner to pay a deposit to cover those costs.

You Can’t Abate if You Don’t Correlate: Appellate Court Finds EIR for Proposed Master-Planned Senior-Living Community Included Inadequate Analysis of Air Quality Impacts and Mitigation Measures

Tuesday, June 3rd, 2014

In Sierra Club v. County of Fresno, 2014 Cal. App. LEXIS 459, the Court of Appeal for the Fifth Appellate District reversed and remanded the lower court’s denial of a petition for writ of mandate challenging the County’s adoption of a proposed master-planned community.

In February 2011, the County of Fresno certified the Environmental Impact Report (“EIR”)  for the Friant Ranch project, a proposed master-planned community for persons age 55 or older located in north-central Fresno County.  The County concurrently approved a General Plan amendment, updating the Friant Community Plan, and approved  the proposed Friant Ranch Specific Plan.  The County’s approval of the Project would result in the construction of approximately 2,500 residential units and 250,000 square feet of commercial space on 482 acres and the dedication of 460 acres to open space.

Appellant filed a petition for writ of mandate, challenging the County’s approval of the Project and the certification of the final EIR. The appellant alleged that the project was inconsistent with the existing General Plan.

The Fifth Appellate District held that the California Supreme Court’s decision in No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, which addressed the appropriateness of governing bodies’ interpretation of ambiguous general plan policies, supported the County’s general plan amendment. Here, the court held  the General Plan clearly indicated that land use designations are not locked in forever; accordingly, the County did not abuse its discretion in amending the General Plan. Likewise, the County did not abuse its discretion when it interpreted the County’s Ag Use Policy to mean  the County could direct growth to an area where expansion of existing facilities and development of new facilities was required.

Appellant then alleged defects in the CEQA analyses. First, the Appellant contended that the EIR’s discussion of wastewater generated by the proposed treatment plant lacked sufficient information about the amount and location of wastewater application and lacked an adequate discussion of the hydrogeology of the site selected for the proposed treatment plant and storage pond.

The court disagreed, concluding that sufficient detail was provided in the draft EIR, enabling readers to understand how a year’s production of effluent would be handled. Likewise, the draft EIR spoke directly to the existing hydrogeologic conditions of the site. Moreover, the final EIR provided additional information in its response to comments, thereby eliminating any “generality” of the original disclosures in the draft EIR.

Finally, the Appellant alleged defects in the EIR’s air quality impact analysis. Specifically, Appellants alleged that the EIR did not adequately describe the exceedance of the thresholds identified, and that there was no meaningful analysis of the adverse health effects associated with the project’s estimated emissions. Appellants also alleged  the EIR failed to provide sufficient detail rendering an identified mitigation measure amorphous and unenforceable.

Citing Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, the court  found that the EIR was inadequate under CEQA because it did not effectively correlate additional emissions generated by the project to potential adverse human health impacts that could be expected as a result. Specifically, the mere statement “that the significant adverse air quality impacts will have an adverse impact on human health” fails to satisfy CEQA standards by not identifying or quantifying the potential adverse human health impacts.

Turning to the adequacy of the EIR’s air quality mitigation measure, the court found  the EIR was inadequate due to internal inconsistencies with the language of its air quality mitigation measure, which added to the mitigation measure’s inherent “vagueness.” The Court indicated that air quality mitigation was vague on matters essential to enforceability, leaving the reader to speculate who is responsible for carrying out mitigation. Likewise, the mitigation did not include enforceable performance criteria, allowing for an objective determination as to whether mitigation has been completed. Furthermore, the court found that the mitigation measure’s “bare” conclusion that emissions would be “substantially reduced” did not quantify emissions and was thus not supported by facts or analysis.

Key Points:
In preparing air quality and greenhouse gas analyses, Lead Agencies should provide meaningful analysis regarding the link between adverse health impacts and identified air quality impacts. This case also reemphasizes the importance of establishing clear, enforceable mitigation with objective performance standards.