Posts Tagged ‘Adequacy of Mitigation’


On November 11, 2017, the Fourth District, Division One in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413 (Cleveland II), resolved the remaining issues on remand from California Supreme Court’s decision earlier this year.

SANDAG certified a programmatic EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy in 2011. Petitioners challenged that EIR, alleging multiple deficiencies under CEQA, including the EIR’s analysis of greenhouse gas (GHG) impacts, mitigation measures, alternatives, and impacts to air quality and agricultural land. The Court of Appeal held that the EIR failed to comply with CEQA in all identified respects.  The Supreme Court granted review on the sole issue of whether SANDAG was required to use the GHG emission reduction goals in Governor Schwarzenegger’s Executive Order S-3-05 as a threshold of significance. Finding for SANDAG, the Court left all other issues to be resolved on remand.

First, the Court of Appeal ruled that the case was not moot, although the 2011 EIR had been superseded by a new EIR certified in 2015, because the 2011 version had never been decertified and thus could be relied upon. The court also found that petitioners did not forfeit arguments from their original cross-appeal by not seeking a ruling on them. And, even if failing to raise the arguments was a basis for forfeiture, the rule is not automatic, and the court has discretion to resolve important legal issues, including compliance with CEQA.

Second, the court reiterated the Supreme Court’s holding, that SANDAG’s choice of GHG thresholds of significance was adequate for this EIR, but may not be sufficient going forward. Turning to SANDAG’s selection of GHG mitigation measures, the court found that SANDAG’s analysis was not supported by substantial evidence, because the measures selected were either ineffective (“assuring little to no concrete steps toward emissions reductions”) or infeasible and thus “illusory.”

Third, also under the substantial evidence standard of review, the court determined that the EIR failed to describe a reasonable range of alternatives that would plan for the region’s transportation needs, while lessening the plan’s impacts to climate change. The EIR was deficient because none of the alternatives would have reduced regional vehicles miles traveled (VMT). This deficiency was particularly inexplicable given that SANDAG’s Climate Action Strategy expressly calls for VMT reduction. The measures, policies, and strategies in the Climate Action Strategy could have formed an acceptable basis for identifying project alternatives in this EIR.

Fourth, the EIR’s description of the environmental baseline, description of adverse health impacts, and analysis of mitigation measures for air quality, improperly deferred analysis from the programmatic EIR to later environmental review, and were not based on substantial evidence.  Despite acknowledging potential impacts from particulate matter and toxic air contaminants on sensitive receptors (children, the elderly, and certain communities), the EIR did not provide a “reasoned estimate” of pollutant levels or the location and population of sensitive receptors. The EIR’s discussion of the project’s adverse health impacts was impermissibly generalized. The court explained that a programmatic EIR improperly defers mitigation measures when it does not formulate them or fails to specify the performance criteria to be met in the later environmental review. Because this issue was at least partially moot given the court’s conclusions regarding defects in the EIR’s air quality analysis, the court simply concurred with the petitioners’ contention that all but one of EIR’s mitigation measures had been improperly deferred.

The court made two rulings regarding impacts to agricultural land. In finding for the petitioners, the court held that SANDAG impermissibly relied on a methodology with “known data gaps” to describe the agricultural baseline, as the database did not contain records of agricultural parcels of less than 10 acres nor was there any record of agricultural land that was taken out of production in the last twenty years.  This resulted in unreliable estimates of both the baseline and impacts. However, under de novo review, the court found that the petitioners had failed to exhaust their remedies as to impacts on small farms and the EIR’s assumption that land converted to rural residential zoning would remain farmland. While the petitioners’ comment letter generally discussed impacts to agriculture, it was not sufficiently specific so as to “fairly apprise” SANDAG of their concerns.

Justice Benke made a detailed dissent. Under Benke’s view, the superseded 2011 EIR is “most likely moot” and in any event, that determination should have been left to the trial court on remand. This conclusion is strengthened, when, as here, the remaining issues concern factual contentions. As a court of review, their record is insufficient to resolve those issues.

On March 15, 2017 the Fourth District certified for publication its February 4, 2017 decision in Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, upholding the EIR for a master- planned community (project). A citizens group challenged the sufficiency of the EIR and the county’s approval process on six grounds. The court found for the county and real party in interest, Hanna Marital Trust (applicant), on every count.

The project proposes a master-planned community with seven planning areas containing medium-density residential housing, mixed uses, commercial retail, and dedicated open space on 200 acres of undeveloped land in Riverside County. Planning area 6, the mixed use area, was analyzed as potentially providing for the development of a Continuing Care Retirement Community (CCRC) for seniors.

On July 28, 2011, the County Planning Department released a Draft EIR (DEIR). The DEIR stated that mitigation measures would reduce the environmental impacts to a below significant level, except for air quality and noise. During the public comment period, the South Coast Air Quality Management District (SCAQMD) and the City of Temecula raised concerns about the project’s air quality impacts. The final EIR (FEIR) was released in January 2012 and included responses to SCAQMD’s and Temecula’s comments. The FEIR reflected changes in the location of some project elements, but was “in its basics identical” with the project as described in the DEIR.

The Planning Commission reviewed the FEIR in April 2012 and suggested revisions, which were subsequently presented to the Commission in October 2012. The Commission recommended approval of the FEIR and the Project to the Board of Supervisors. The Board reviewed the FEIR at its December 11, 2012 meeting, where it considered some modifications to the project and Residents Against Specific Plan 380 (petitioners) suggested additional noise mitigation measures. At its December 18, 2012 meeting, the Board tentatively approved the FEIR, contingent on finalization of the modifications. On November 5, 2013, the Board approved the finalized FEIR, general plan amendment, zone change, and Specific Plan 380. The EIR resolution included findings of fact, a mitigation monitoring and reporting plan, and a statement of overriding considerations. The same day, the county clerk posted a Notice of Determination (NOD) that erroneously used an out-of-date project description.

On November 18, 2013, petitioners filed a petition for a writ of mandate, which was denied by the trial court. This appeal followed.

First, the Fourth District concluded that the Board did not substantially modify the EIR after approving it. Because the Board only tentatively approved the project in December 2012, the final approval in November 2013 reflected the Plan’s modifications. Similarly, the court disagreed with the petitioners’ argument that the findings, statement of overriding considerations, and mitigation plan were not timely and concurrently approved.

Second, the court concluded that the NOD substantially complied with the informational requirements of CEQA, despite its project description errors. The court also noted that the petitioners could not show that the errors were prejudicial because they filed the suit well before the statute of limitations had run.

Third, the court held that the changes made by the Commission and Board were not significant enough to require recirculation of the EIR. In reaching its determination, the court relied on CEQA Guidelines § 15088.5, subd. (a), stating that a lead agency must recirculate an EIR when significant new information is added that reveals a substantially new or increased impact. The court rejected the petitioners’ argument of increased traffic impacts, holding that only traffic patterns would be affected, not intensity. The court also rejected the petitioners’ contention that increased biological impacts would result from moving the mixed-use area further north, as the open space region was already adjacent to it. Petitioners’ argument of increased noise impacts was contradicted by the county’s expert. Finally, the petitioners failed to substantiate their claim of potential land use inconsistencies. Therefore, the County had an adequate basis for not recirculating the EIR. Petitioners’ reliance on Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412 and Save our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99 were inapposite, as the EIR did not reveal facially significant new impacts nor areas necessitating further factual development.

Fourth, the court concluded that the EIR adequately analyzed the impacts of the mixed-use area under the rubric of a proposed CCRC. Petitioners alleged that by analyzing only a CCRC, and not other potentially higher impact uses, the EIR’s analysis of the mixed-use planning area was improperly narrow in scope. The court rejected this argument because substantial evidence supported the County’s decision to limit the scope of the analysis to a CCRC. Even if the applicant did not build a CCRC, the project plan restricted the applicant to other permitted uses in the planning area, and only if they would not incur additional environmental impacts. Nor, the court stated, does CEQA require the county to analyze what are merely possible development schemes.

Finally, the court ruled that the EIR adequately considered the specific suggestions for mitigating the project’s air quality and noise impacts from SCAQMD, Temecula, and the petitioners. Regarding mitigation for air emission impacts proposed by SCAQMD and Temecula, the county could justify why the measures were not adopted, why they were infeasible given the project’s timeline and parameters, or why they were duplicative with measures already adopted. SCAQMD’s proposal to utilize lower emission vehicles did not reflect the construction equipment anticipated to be reasonably available. Temecula’s suggestion of applying the 2010 Energy Code was duplicative of the requirement to exceed the 2008 Code emission standards by 15%, and the code in force at the time of construction would control in any event. Furthermore, the county was not required to adopt the specific prescriptive emission reduction measures in the Green Building Standards Code, but could opt for performance-based standards that are less likely to incur enforcement and enforceability issues. With respect to the additional noise mitigation measures proposed by the petitioners, these were found to be untimely raised more than a year after the comment period had closed. Therefore, the county was not obligated to respond. Moreover, the county was justified in not adopting these noise mitigation measures because they require electric construction equipment that may not be available or may duplicate existing requirements.

 

In Coastal Hills Rural Preservation v. County of Sonoma (2016) (previously published at 2 Cal.App.5th 1234)* the First District Court of Appeal upheld the trial court’s determination that the County of Sonoma did not violate CEQA or the Planning and Zoning law when it adopted a subsequent mitigated negative declaration (MND) and approved a master use permit to expand the existing Ratna Ling Buddhist retreat center and printing facility.

The Tibetan Nyingma Meditation Center (TNMC) has operated a monastery and retreat center in Cazadero since 1975. In 2004, TNMC purchased an additional property, which it designated the Ratna Ling Retreat Center. Since 2004 Ratna Ling has undergone numerous changes and expansions, including growing from a one-printing-press facility to operating six printing presses. In response to applications from Ratna Ling, the county adopted and approved a series of mitigated negative declarations in 2004, 2008 and 2012. In 2014, Ratna Ling applied for a third multiple-use permit, and the county adopted a subsequent MND to the 2004 and 2008 MNDs, superseding the 2012 MND. The 2014 subsequent MND analyzed Ratna Ling’s application to make permanent four storage tents for its printing-press operation, and construct a new six-bedroom residence and up to eight tent cabins.

Coastal Hills Rural Preservation (CHRP) filed suit, arguing that the county should have prepared an EIR because the project greatly expands the printing-press operation. CHRP also argued that the approval violated the county’s general plan and zoning provisions. The trial court denied the petition, and the First District Court of Appeal affirmed.

CHRP argued that the project was inconsistent with the county’s general plan and zoning provisions in violation of Government Code section 65300. The site is designated for “resources and rural development” under the county’s general plan, which is intended to “protect lands used for timber, geothermal and mineral resource production and for natural resource conservation.” Contrary to CHRP’s argument that the printing press included “extraordinary levels of manufacturing productions …, massive storage structures and commercial Internet sales,” the court found that substantial evidence supported the county’s determination that the proposed uses were consistent with the land use regulations. The court explained that an agency’s determination regarding consistency with its own general plan is given great deference because “the body adopting a general plan has unique competence to interpret those policies when applying them to a proposed project.” There was no evidence in the record that the printing activities were undertaken for profit, the printing press use had been permitted since 2004, and the Board fully considered the county’s land use policies and the extent to which the project conforms to those policies.

The Court of Appeal also affirmed the trial court’s determination that the Board did not violate CEQA. Because the court was considering the county’s decision to prepare a subsequent MND where an MND had already been prepared under Public Resources Code section 21166, the court applied the substantial evidence test rather than the fair-argument standard of review. The court noted that the issue of the standard of review is currently before the California Supreme Court in Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (Sept. 26, 2013, A135892 [nonpub. opn.]), review granted Nov. 5, 2013, S214061).

The court found that substantial evidence supported the Board’s conclusion that any fire risks posed by the storage tents were adequately mitigated: the membranes covering the tents met applicable fire protection standards, there was 200 to 300 feet of defensible space around each tent, and a condition of approval required Ratna Ling to provide and maintain its own onsite fire engine. In addition, the court held that, regardless of whether the county should have included the tents in the baseline for its analysis, substantial evidence in the record indicated that the Board fully considered the potential impacts of the tents.

The court also ruled against arguments put forth by amicus curiae Friends of the Gualala River and Forest Unlimited. Contrary to those arguments, the county’s Hazard Mitigation Plan was not effective until October 25, 2011, well after the storage tents were permitted and constructed, and therefore was inapplicable. In addition, the county did not improperly defer mitigation when it required Ratna Ling to coordinate with the fire district and comply with all fire-related conditions, because the mitigaton simply granted the county the right to impose new, stricter requirements if deemed necessary.

Finally, CHRP argued that the county engaged in impermissible spot zoning. The court explained that because the record and the relevant zoning regulations did not suggest that the authorized use for Ratna Ling is prohibited as to all other parcels in the same zone, this was not impermissible spot zoning in violation of Government Code section 65852.

*On November 22, 2016, the California Supreme Court granted review (210 Cal.Rptr.3d 14), depublished the decision, and transferred the case back to the First District, Division One, for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al. (2016) 1 Cal.5th 937, 957–959. On May 16, 2016, the First District filed an unpublished decision in matter, available at 2017 WL 2118370.

The Third District Court of Appeal held that the California Department of Fish and Wildlife’s program EIR analyzing the Department’s statewide fish hatchery and stocking enterprise passed muster. The Department did not abuse its discretion in the manner it organized the EIR, analyzed the project, and mitigated numerous impacts. The court also found, however, that the Department had violated the Administrative Procedure Act (APA) by adopting three mitigation measures, which imposed new obligations on private aquaculture facilities and required the Department to perform new duties, without complying with APA procedures. Center for Biological Diversity v. Dept. of Fish and Wildlife (Feb. 10, 2015) ___ Cal.App.4th ___, Case No. C072486.

The Department operates 14 trout hatcheries and 10 salmon and steelhead hatcheries throughout the state, stocking fish at close to 1,000 locations each year. After CEQA’s enactment, the hatching and stocking enterprise was found categorically exempt from complying with CEQA. Subsequently, concerns arose regarding the enterprise’s impact on native and wild animals due to predation and genetic hybridization. To address these concerns, the Department developed aquatic biodiversity management plans and hatchery genetic management plans. Center for Biological Diversity sued the Department in 2006, and the trial court agreed with the Center that the enterprise was not categorically exempt from CEQA because it likely caused significant environmental impacts. The court in this prior suit ordered the Department to prepare an EIR and comply with CEQA.

The Department prepared a broad-scope, program EIR/environmental impact statement pursuant to that decision and to additionally comply with NEPA. The EIR analyzed the statewide hatchery and stocking enterprise, as well as three other programs, including the Fishing in the City Program (providing fishing opportunities in urban areas), and the Private Stocking Permit Program (authorizing fish stocking by private aquaculture facilities in private and public lakes and ponds). The Department selected operations from 2004 to 2008 as the baseline and identified more than 200 impacts on biological resources. The EIR proposed a number of mitigation measures to lessen these impacts, and laid out three project alternatives. The EIR did not consider closing the hatcheries or eliminating trout stocking as alternatives.

The Department’s EIR was challenged by the Center and other plaintiffs representing environmental interests in two separate CEQA suits, with plaintiffs representing recreational fishing interests bringing a third suit under the APA. The trial court upheld the EIR and found no violations of the APA. The appellate court affirmed in part and reversed in part.

First, the Third District addressed the EIR’s level of analysis. The CEQA Guidelines do not specify the level of analysis required to be performed in a program EIR. Rather, the Guidelines require an EIR to provide sufficient information in light of what is reasonably feasible. The court found the EIR satisfied that standard. The document reviewed and analyzed the hatchery and stocking enterprise specifically and comprehensively, but within reason, providing for further environmental review where warranted. Given the nature and statewide scope of the project and the consistency of its impacts across the state, the court found the analysis adequate to serve as a program EIR that also operated as project EIR. No additional site-specific environmental review was required given the agency’s determination that site-specific impacts were sufficiently addressed in the program EIR, and there were no new impacts. Indeed, that is the function of a program EIR.

The court also found the EIR did not impermissibly defer formulation of mitigation measures, as it provided sufficient performance standards for future mitigation to meet. The court noted that the rule prohibiting deferred mitigation prohibits loose or open-ended performance criteria. Here, in contrast, the EIR’s performance standards were sufficient to inform the Department what it had to do and accomplish, and committed the Department to mitigating impacts before proceeding with the enterprise. The performance standards were sufficient to ensure the aquatic biodiversity management plans would mitigate impacts in mountain lakes to insignificance. The Department also relied upon federal regulations to develop mitigation measures for impacts on anadromous fish.

The court held that the Department properly used the existing enterprise as the environmental baseline. The court rejected the Center’s contention that the EIR must use the existing environmental conditions—absent the project—as the baseline. It noted that though the origin of present conditions may interest enforcement agencies, such information is irrelevant to CEQA baseline determinations. The CEQA baseline must include existing conditions even when those conditions have never been reviewed and are unlawful. Furthermore, despite using the existing enterprise as the baseline, the EIR described, as much as reasonably possible the impacts hatcheries and stocking have had statewide on the environment from the enterprise’s inception more than a century ago, and proposed mitigation for those continuing impacts. Thus, the EIR did exactly what the Center sought.

Finally, the court held the EIR considered an adequate range of alternatives. For the no project alternative, the EIR considered the baseline project—continuation of the existing enterprise without making any changes. The court upheld this decision, noting that where the EIR is reviewing an existing operation or changes to that operation, the no project alternative is the existing operation; it is a factually based forecast of the environmental impacts of preserving the status quo. The court rejected the Center’s argument that the no project alternative should have been the elimination of the stocking enterprise, stating that the EIR is not the approval of a new program, but review of an ongoing one. The Department was not required to analyze the alternative scenario of discontinuing its hatchery and production enterprise, as it had no legal authority to implement a no-stocking alternative.

Turning to the APA contentions, the court concluded that three mitigation measures imposed by the Department were underground regulations, i.e., regulations adopted without complying with the notice and procedure requirements imposed by the APA. The mitigation measures at issue were: MM BIO-226 (Implement Private Stocking Permit Evaluation Protocol), MM BIO-229 (Require and Monitor Invasive Species Controls at Private Aquaculture Facilities), and MM BIO-233b (Implement Private Stocking Permit Evaluation Protocol). The court found that the measures fell within the definition of a “regulation” and were not exempt from APA requirements. The court rejected the Department’s argument that MM BIO-226 was exempt as a regulation relating “only to the internal management of the state agency,” and that MM BIO-229 and MM BIO-233b were exempt as regulations that embody the “only legally tenable interpretation of a provision of law.” In particular, the court concluded that MM BIO-226 required the Department to “perform a new duty” and MM BIO-229 imposed on a “class of persons a new affirmative duty.” The court’s application of the APA to mitigation measures in a state agency’s EIR appears to be a first and could have far-reaching implications on other EIRs studying statewide activities.

In a partially published opinion, the Fifth District Court of Appeal clarified an issue regarding appeals under the Surface Mining and Reclamation Act of 1975 (SMARA) and upheld the county’s choice of mitigation for loss of farmland. Friends of the Kings River v. County of Fresno, Case No. C071891 (Dec. 8, 2014).

The project in this case involved a proposed aggregate mine and construction of related processing plants on a 1,500-acre site in the County of Fresno. Mining and production activities would eventually occupy about 900 acres of the site; the remaining acreage would continue to support orchards. The project application included a reclamation plan as required by SMARA.

The County of Fresno prepared and certified an EIR for the project in 2012. Subsequently, petitioners submitted a designation appeal to the State Mining and Geology Board (SMGB) alleging that the reclamation plan failed to comply with SMARA. The SMGB granted the appeal and remanded the reclamation plan to the county. The county, in turn, revised the reclamation plan. During the SMGB appeal process, petitioners also filed a petition for writ of mandate against the county alleging violations of CEQA. The trial court denied the petition, and an appeal ensued.

The first published issue in the opinion addresses the scope of the SMGB’s authority over reclamation plans approved by a local lead agency. Petitioners argued that by remanding the county’s approved reclamation plan, the SMGB set aside or nullified the reclamation plan. Petitioners reasoned that the county failed to proceed in the manner required by law because the county approved a CUP absent a valid reclamation plan, contrary to the county code. The appellate court disagreed. Under SMARA, the only remedy available for a successful appeal to the SMGB is remand to the lead agency for reconsideration. The lead agency must then hold a public hearing and reconsider the action, but the lead agency is not required to set aside its prior decision.

The second published issue in the opinion addresses whether the county complied with CEQA by inadequately mitigating for permanent loss of farmland. The EIR for the project acknowledged that about 600 acres of farmland would be permanently lost over the course of 100 years. The county determined this loss of farmland would be a significant impact and adopted three mitigation measures addressing the impact. During public comments on the project, the county received a suggestion that permanent agricultural conservation easements (ACEs) could mitigate for the loss of farmland. The county addressed this suggestion in a master response which compared proposed mitigation measures with the recommendation to include ACEs in the project. The master response concluded that establishing such easements would not reduce the amount of farmland permanently converted as a result of the project. Therefore, the county found that ACEs would not mitigate the significant impact to less-than-significant levels, or substantially reduce the severity of the impact. The appellate court determined this evaluation of suggested mitigation measures compared to proposed mitigation measures was sufficient.

The appellate court rejected petitioner’s follow-up argument that the county was required to adopt ACEs as mitigation for the project as a matter of law. In support of this argument, Petitioner relied on Masonite Corp. v. County of Mendocino (2013) 218 Cal.App.4th 230, in which the First District Court of Appeal held that ACEs may appropriately mitigate for the direct loss of farmland. In Masonite, the County of Mendocino argued that ACEs only mitigate for “indirect and cumulative effects of farmland conversion.” The First District corrected the county, explaining that ACEs may compensate for direct loss within the meaning of the CEQA Guidelines, so the county erred by declining to consider ACE’s as a potentially feasible mitigation measure. In contrast, the County of Fresno considered the feasibility of ACEs in the final EIR.

Division One of the Fourth District Court of Appeal granted Sierra Club’s petition to enforce a climate change mitigation measure adopted by the County of San Diego. The court affirmed the decision below. Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152.

Mitigation measure CC-1.2, which was included in a program EIR for the County’s 2011 general plan update, committed the County to preparing a climate change action plan (CAP) with more detailed greenhouse gas (GHG) emissions reduction targets and deadlines, and comprehensive and enforceable GHG emissions reductions measures that would achieve specified GHG reductions by 2020. Sierra Club alleged that, contrary to this commitment, the County prepared a CAP that expressly did not ensure reductions. The County also developed associated guidelines for determining significance thresholds. Sierra Club alleged that CEQA review of the CAP and thresholds was performed after the fact, using an addendum to the EIR, which did not address the concept of tiering or the County’s failure to comply with the express language in CC-1.2, and contained no meaningful analysis of the impacts of the CAP and thresholds.

The court first rejected the County’s contention that Sierra Club’s mitigation-related claim was barred by the statute of limitations because it could have been brought with the challenge to the general plan update. The court found that Sierra Club did not challenge the validity of the general plan update EIR or the enforceability of the mitigation measures provided therein, but instead challenged the County’s separate approval of the CAP.

Next, the court held that with respect to the CAP as mitigation for a plan-level document, the County failed to proceed in a manner required by law by going forward with the CAP and thresholds project in spite of the express language of CC-1.2 that the CAP include more detailed GHG emissions reduction targets and deadlines. The County described the CAP’s strategies as recommendations, rather than requirements. It also relied on unfunded programs to support the required emissions reductions. The CAP’s transportation section did not include an analysis of the County’s own operations and the record contained contradictions surrounding programs over which the County had exclusive control. The County did not bind itself to implementation of its programs, and did not cite to any evidence supporting its belief that people would participate in the programs to the extent necessary to achieve the asserted reductions. In fact, the CAP expressly stated that it did not ensure reductions. Quantifying GHG reduction measures, the court stated, was not synonymous with implementing them.

The County also made the erroneous assumption the CAP and thresholds project was the same project as the general plan update, despite the fact that no component of the CAP or thresholds had been created at the time of the general plan update. Thus, the general plan update EIR did not analyze the CAP as a plan-level document that itself would facilitate further development. As a result, the County failed to render a written determination of environmental impact before approving the CAP and thresholds. By failing to consider the environmental impacts of the CAP and thresholds, the court noted, the County effectively abdicated its responsibility to meaningfully consider public comments and incorporate mitigating conditions. The project acknowledged it did not comply with Executive Order No. S-3-05, and would therefore have significant impacts that had not previously been addressed in the general plan update EIR.

The court held that the EIR’s mitigation measure for aircraft safety impacts, requiring that wind turbines be reviewed by the Federal Aviation Administration before issuance of building permits, was feasible and enforceable. The court also held that substantial evidence supported the EIR’s conclusion that the mitigation measure would be effective to mitigate impacts on aviation safety. Citizens Opposing a Dangerous Environment v. County of Kern (June 30, 2014, Case No. F067567) was certified for partial publication on July 25.

The case arose from the County of Kern’s approval of a conditional use permit for the operation of a wind farm in the Tehachapi Wind Resource Area. The county approved the CUP for the construction of wind turbines, up to 500 feet tall, after preparing an EIR. The EIR determined that the wind turbines might pose significant safety hazards to aircraft and gliders using a nearby private airport. The county, therefore, adopted a mitigation measure requiring the project applicants to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each wind turbine prior to issuance of building permits. Citizens Opposing a Dangerous Environment (CODE) filed a petition challenging the EIR on various grounds. The trial court denied the petition and CODE appealed.

CODE’s principal challenge on appeal was to the validity of the aircraft safety mitigation measure. CODE argued that the EIR failed to describe an adequate mitigation measure as a matter of law because the measure would not avoid or minimize significant impacts to aviation safety. The court disagreed, noting the mitigation measure’s requirement that the applicant obtain FAA certification for each wind turbine prior to construction. The court then pointed to other CEQA cases holding that mitigation measures requiring compliance with existing regulatory schemes are common and reasonable. And since federal law occupies the entire field of aviation safety, the court found it reasonable to expect compliance with FAA regulations by the applicants.

CODE also argued the aircraft safety mitigation measure was infeasible because the FAA could not legally block the project through enforcement of its “hazard/no-hazard” determinations. But the court noted the evidence suggested the hazard/no-hazard determinations can have a substantial practical impact on projects, even if the FAA did not directly have the power to halt the project. In any event, the mitigation measure made issuance of building permits for each wind turbine contingent on FAA approval. So while the FAA could not directly halt construction of the project, the county, through its police power, could. Therefore, the court determined the mitigation measure adopted to protect aircraft safety was feasible and enforceable, and the EIR’s conclusion that the mitigation measure would be effective was supported by substantial evidence.

The court also rejected CODE’s claims that the EIR should be set aside because the county failed to respond to late comments and that the county was required to adopt either CODE’s proffered mitigation measure or the EIR’s “environmentally superior alternative.”

In Center for Biological Diversity v. Department of Fish and Wildlife (Mar. 20, 2014) ___ Cal.App. ___, Case No. B245131, the Second Appellate District reversed the trial court judgment granting a petition for writ of mandate challenging the California Department of Fish and Wildlife’s (Department) approval of the Newhall Ranch Resource Management and Development Plan and Spineflower Conservation Plan. In the published portion of its opinion, the court held that the provisions of the Fish and Game Code supported a determination that live trapping and transplantation of a protected species of fish does not constitute an unlawful taking when undertaken by the Department for conservation purposes. The court also found the Environmental Impact Report’s analysis of cultural resources, alternatives, impacts to Steelhead smolt, and impacts to spineflower complied with CEQA.

The Newhall Land and Farming Company proposed an almost 12,000-acre Specific Plan area approved by Los Angeles County in 2003 and to be built out over a number of years. After the local county approved an environmental impact statement for the proposed development, the Department prepared and certified an EIR for the project—a Resource Management and Development Plan and Spineflower Conservation Plan. The EIR analyzed the potential environmental effects of issuing incidental take permits and a streambed alteration agreement under the project. The construction of the project would impact, among other things, the stickleback, a fish protected under Fish & Game Code §5515(a)(1) as a “fully protected species.”

The Center for Biological Diversity filed a petition for writ of mandate challenging the Department’s actions. The trial court granted the writ petition, finding, among other things, that the department failed to prevent the taking of the stickleback. The Department and the developer appealed. The court of appeal reversed, holding that the trial court erred in granting the petition.

The court found substantial evidence supported the Department’s conclusion that no take of the stickleback would occur. The court found that the EIR contained mitigation measures to exclude stickleback from any construction areas in the river and to trap and relocate any stranded stickleback to other parts of the river in temporary containers. The court found substantial evidence supported a determination that no mortality would occur given the extraordinary measures taken by the Department to ensure the sticklebacks’ safety, including undertaking surveys of stickleback habitat prior to developing its plan, preparation of ten different studies, and employing the expertise of one of the leading authorities on stickleback preservation. The extensive mitigation measures, coupled with the expert’s discussion, constituted substantial evidence no deaths would result.

The court also rejected CBD’s contention that the mitigation measures themselves would constitute a taking prohibited by Fish and Game Code §§86 and 5515(a)(1). Those sections defined a prohibited take as the “catch, capture, or kill” of protected fish. After a thorough review of pertinent sections of the code, along with their legislative histories, the court agreed with the Department and developer that the use of live trapping and transplantation techniques approved in Fish and Game Code §2061 would not constitute a prohibited take or possession. The court reasoned the entire statutory scheme must be construed together and section 2061 allows for live trapping and transplantation when performed for conservation purposes. Such techniques, as explained by the Department’s expert, can involve the possession and movement of the stickleback in containers to parts of the river that would not be impacted by construction. Therefore, the court concluded the mitigation measures would not result in an unlawful take or possession of stickleback.

The court also rejected CBD’s claims that the EIR failed to adequately address the cultural resources impacts of the project. As an initial matter, the court found CBD had forfeited its cultural resources claims by failing to raise such issues during the public comment period. As a result, the court held CBD failed to exhaust administrative remedies and Department had no obligation to respond to untimely comments. Though finding the claims waived, the court addressed these claims on the merits and rejected them, finding the cultural resource analysis was supported by substantial evidence. The analysis in the EIR was based on extensive research, surveys, and studies performed by consultants with expertise in the field. The consultants undertook excavations of areas that the research and studies indicated resources might be present. Furthermore, the court found there was no evidence that the consultant have failed to uncover any human remains. Though human remains had been found near the project site, the court found that those earlier, off-site discoveries did not require the Department to conduct additional plug tests on site to confirm the consultant’s conclusion. The court also upheld the cultural resources mitigation measures set forth in the EIR as adequate and in full compliance with CEQA Guidelines §15126.4(b)(3)(A).

The court rejected CBD’s claim that the Department’s determination regarding the feasibility of one of the alternatives was not supported by substantial evidence. The court found that, in general, the alternatives were appropriate because they were required to follow the Newhall Ranch Specific Plan. In considering the objectives of the specific plan, the alternative in question would not meet the project objectives to provide a new major community with industrial, commercial, and residential uses because the alternative lacked commercial uses in one planning area and had no connectivity to the easternmost portion of the project area. Furthermore, the alternative was economically infeasible based on application of an industry metric of the cost per developable acre compared to the proposed project. The court upheld this methodology and found substantial evidence supported the Department’s determination regarding the infeasibility of the alternative.

The court rejected CBD’s claims that the EIR failed to address the potential effects on steelhead smolt downstream of the project area due to dissolved copper discharges.  Again, the court found CBD had forfeited its claims for failing to raise them during the public comment period. Though waived, the court addressed the claims and found that there were no steelhead smolt in the project area because the habitat would be below the dry gap where the river goes underground. Furthermore, the dissolved copper discharged to the river would be below the California Toxics Rule Threshold with compliance with regulatory requirements and implementation of mitigation measures and design features. The court found substantial evidence supported the Department’s determination that the project’s impacts on steelhead smolt would be less than significant.

The court rejected CBD’s claims of flaws in the EIR’s analysis of impacts to the San Fernando Valley spineflower, which is listed as endangered under the California Endangered Species Act (CESA) and is known to occur only in the project area and one other location in Ventura County.  The Department issued an incidental take permit for spineflower, allowing take of 24% of the habitat within the Specific Plan area. The court found substantial evidence supported the mitigation plan for the spineflower. The Department had employed 43 biologists who conducted 21 surveys to identify the potential spineflower habitat. The Conservation Plan would dramatically expand the area for potential growth of the spineflower: from 13.88 acres of growth to 56.79 acres of core growth, 110.77 acres of buffer and 42.90 acres of expansion areas. The Plan would ultimately increase the preserve areas from two to five. The court also found that Department’s comprehensive monitoring plan did not constitute impermissible deferral of mitigation, but rather called for future research, which represented “sound ecological management.”

In an unpublished portion of the opinion, the court upheld the EIR’s greenhouse gas analysis. The Department employed a significance threshold for greenhouse gas emissions premised on the reduction target established under the California Global Warming Solutions Act (AB 32) where GHG emissions would be significant if the project would impede achievement of a reduction in statewide GHG emissions to 1990 levels by 2020.  The court held the Department had discretion to employ this threshold and concluded the threshold was appropriate.  The court found the GHG analysis complied with CEQA because it was consistent with the requirements for such analysis set forth in CEQA Guidelines §15064.4(b)(1)-(3) and was supported by substantial evidence.

California Clean Energy Committee v. City of Woodland, Case No. C072033 (April 1, 2014)

Petrovich Development Company, LLC proposed to develop a 234-acre regional shopping center knows as “Gateway II” on undeveloped agricultural land located on the outskirts of the City of Woodland. After preparing a programmatic EIR, the city council reduced the size of the project to 61.3 acres and approved the project. California Clean Energy Committee (CCEC) filed a petition for writ of mandate challenging the city’s approval of the project. The trial court denied the petition.

On appeal CCEC contended (1) the trial court erred in concluding the project did not conflict with the city’s general plan, (2) the city’s mitigation measures are insufficient to ameliorate the urban decay that the project could cause, (3) the city did not give meaningful consideration to feasible project alternatives such as the mixed-use alternative, and (4) the final EIR did not properly identify and analyze potentially significant energy impacts generated by the project.

In an unpublished portion of the opinion, the court rejected CCEC’s first claim that city’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the city’s general plan policy of revitalizing its downtown. The court held the CCEC had failed to preserve this argument because its CEQA petition had failed to plead a separate violation of the Planning and Zoning Law.

With respect to CCEC’s claims regarding the City’s urban decay mitigation measures, the court agreed with CCEC that the measures were inadequate to mitigate the urban decay anticipated to result from the project. The mitigation measures the city adopted required the developer (1) to apply for a master conditional use permit subject to future evaluation and potential further environmental review and indicating a list of specific project uses that “shall primarily consist of regional retail uses that do not include entertainment uses and other uses that would compete with retail in Downtown Woodland”; (2) to submit a market study and urban decay analysis for review and approval by the city’s Community Development Department showing either that adequate retail demand exists or require additional mitigation or an alternate use; (3) to contribute funds toward the development of a “Retail Strategic Plan” to be prepared by the city; (4) to contribute funds toward the preparation of an “Implementation Strategy for the Downtown Specific Plan” to be prepared by the city; and (5) to “coordinate with the current owner of the County Fair Mall to prepare a strategic land use plan for the County Fair Mall to analyze potential viable land uses for the site.” The EIR determined, however, that even with the implementation of this mitigation, the city still anticipated the urban decay impact to be significant and unavoidable, in part because it was unknown at the time of approval what specific uses and stores could be proposed in the future in the project area.

The court found, as to the first mitigation measure, it was permissible under CEQA because it served to ensure the primary retail uses for the development will be regional and would not outright ban all retail uses that compete with the city’s downtown. The court also accepted the city’s representation that it “merely found that this measure would help, albeit not enough to avoid the significant urban decay impact identified by the EIR.” The court found, however, that the measure was inadequate, standing alone, to mitigate the potential adverse impacts of the development.

The court found that the second mitigation measure, by requiring the developer to prepare the market study, impermissibly ceded the city’s responsibility for studying an environmental impact to the developer. The court rejected CCEC’s claim that the city council erred by delegating the responsibility to implement the mitigation measure to the community development department, finding that delegation of responsibility for a monitoring program is appropriate under CEQA. Further, the court found the market study measure was inadequate because it did not commit the city to any specific mitigation action or impose any performance standards for determining whether it needed to undertake any future measures. Despite the fact that the EIR was a programmatic review which anticipated potential future environmental review for site-specific discretionary projects, the court concluded that, given the city’s recognition that the project would cause urban decay, the mitigation was required to do more than merely agree to a future study of the problem.

The court found the third and fourth mitigation measures were similarly inadequate for their failure to commit the city to any feasible or enforceable mitigation measures to ameliorate the adverse effects of the project on urban decay elsewhere in Woodland. The requirement for preparation of the Retail Strategic Plan and Implementation Strategy for a downtown specific plan appeared in the Draft EIR without further discussion or analysis. The final EIR adopted these mitigation measures without elaboration. The court explained that although mitigation fee programs may constitute adequate mitigation to address the adverse effects of a project, the mere payment of fees does not presumptively establish full mitigation for a discretionary project if there is no evidence that there is an established fee program in place. Here, the court found the city’s EIR did not adequately assess the scope of the program or fees necessary to adequately address the urban decay impacts expected to result from the project.

Finally, the court found that the fifth measure, although it purported to alleviate expected urban decay at Woodland’s County Fair Mall, required the city to take no action other than to coordinate with the current owner to prepare a plan for viable land uses at the County Fair Mall. The court found the mitigation measure does not require any action by the city to mitigate the urban decay it may discover to result for the County Fair Mall. As such, the court held this purported mitigation measure was inadequate. The court found that, though the EIR was a programmatic EIR, tiering of environmental review and deferring environmental analysis and mitigation measures to later phases would only be appropriate in cases where the impacts or mitigation measures are specific to those later phases. Here, because the EIR studied and attempted to mitigate the urban decay effects from the project as a whole, the city could not be permitted to excuse inadequate mitigation by putting off corrective action to a future date.

The court then held the city failed to comply with CEQA when it rejected the mixed-use alternative as infeasible. The Draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council’s findings rejected the alternative as environmentally inferior to the project. The court found the city had adopted a rationale for rejecting the alternative that was unsupported by the EIR analysis, which assumed certain impacts would be similar to the project impacts.

Finally, the court found the city’s treatment of energy impacts was inadequate. The court noted that the EIR’s discussion of energy lacked detail as it comprised less than one page. Furthermore, the court found the discussion inadequate as it did not provide an assessment of or mitigation for certain energy impact categories set forth in Appendix F of the CEQA Guidelines including transportation energy impacts, construction energy impacts, and renewable energy impacts. While the EIR did require the project’s compliance with the state building code and green building standards, the court found such standards alone would not adequately mitigate construction and operational energy impacts of the project.

The Fourth District recently ordered publication of its decision in San Diego Citizenry Group v. County of San Diego (July 30, 2013, Case No. D059962) __Cal.App.4th__. The Fourth District upheld the trial court’s decision rejecting a challenge to the adequacy of the county’s EIR, which analyzed a zoning ordinance intended to encourage the development of boutique wineries. But the appellate court determined the trial court had erred in awarding the county the costs of preparing planning commission transcripts for the administrative record because these transcripts were not in existence at the time of the board of supervisors’ approval of the ordinance.

Facts and Procedural Background

This case arises from the County of San Diego’s efforts to promote the growth of grapes and the expansion of the wine industry. In 2006, the board of supervisors began exploring ways to allow boutique wineries to expand and operate by right within the county. The county received public comments revealing concerns about traffic and related traffic safety impacts, especially on privately owned rural roads. Nonetheless, in 2008, the board directed its staff to develop a “tiered winery ordinance” that would allow boutique wineries by-right.

In 2009, the county prepared and circulated for public review a Draft EIR analyzing the potential environmental impacts of adopting the winery ordinance. The DEIR concluded that the project would cause 22 significant and unmitigated environmental impacts as a result of approving an unlimited number of future wineries by-right. Despite these impacts, the board adopted a Final EIR and a statement of overriding considerations in 2010. San Diego Citizenry Group filed a petition for writ of mandate challenging certification of the EIR. The Group requested that the county prepare the administrative record.

The trial court denied the petition and ordered the petitioner to reimburse the county for the costs of preparing the record. San Diego Citizenry Group appealed.

The Appellate Court’s Decision

The project objectives were proper.

On appeal, the petitioner argued that the county did not properly make a “preliminary policy determination” regarding the objectives for the project, and in particular, that the EIR improperly relied on these objectives when analyzing the feasibility of mitigation measures. But the court quickly dispensed with this argument, noting that the county included within the EIR a “statement of the objectives sought by the proposed project” in compliance with CEQA Guidelines section 15124. In fact, the county defined nine objectives for adopting its proposed ordinance amendment.

Adequacy of discussion and mitigation of impacts to private roads

Next, the petitioner argued the EIR was inadequate because it did not discuss “any ‘additional’ mitigation measures in ‘meaningful detail.’” But the court noted that the petitioner failed to identify any potentially feasible mitigation measures that the EIR omitted. The county was not required to engage in an extensive discussion of infeasible mitigation measures, including mitigation measures that are incompatible with the project’s “core” objectives. Requiring the county to analyze the incorporation of mitigation measures or alternatives that would defeat a project’s primary objectives would run contrary to CEQA’s definition of “feasible.”

The petitioner also attacked the adequacy of the EIR’s discussion of impacts to private roads caused by the ordinance because the EIR rejected a mitigating traffic measure previously adopted in 2008. But the court determined that the county was not required to adopt the 2008 traffic measure simply because it was suggested and addressed impacts identified in the EIR. An agency may delete previously adopted mitigation during review of a project so long as it states a legitimate reason for doing so. The court determined the county had a legitimate reason for not adopting the 2008 measure because it was developed for a completely different project involving private landowner agreements, rather than by-right uses. Furthermore, the FEIR included mitigation measures, such as limitations on the size of vehicles allowed to enter boutique wineries and various restrictions on operations at the wineries, which specifically addressed these impacts to private roads.

The EIR adequately discussed potential environmental impacts

The petitioner argued that the EIR did not sufficiently analyze the project’s potential significant environmental impacts for a variety of reasons.

Focusing on potential future impacts to traffic, appellants first argued that the EIR analysis was insufficient because the county did not use its “best efforts” to predict how many by-right wineries could be developed under the ordinance. But the court noted that the EIR did not “simply state that the level of development is unknown and then label each impact as significant without meaningful analysis or discussion.” The county based a prediction of future boutique winery development on the pattern of development of existing grape growers and wineries. The county had surveyed 26 existing wineries, eleven of which responded, with eight indicating an intention to convert to boutique wineries under the proposed ordinance. The FEIR analyzed the amount of traffic each new boutique winery would generate and determined the maximum concentration of wineries that could be developed. Therefore, the court found the FEIR adequately analyzed the project’s traffic impacts based on existing and anticipated development.

Second, the petitioner argued that the EIR did not sufficiently identify project impacts to water supplies. But the court disagreed, noting that the FEIR met the standard under Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, that “a conceptual plan EIR, such as one for a general plan amendment to allow proposed development,” must identify “the likely source of water for new development, noting the uncertainties involved, and discussing measures being taken to address the situation in the foreseeable future.” The county also collected survey data from wineries located in San Diego and Riverside counties to better estimate impacts on water supplies. This was sufficient.

Third, the petitioner argued the FEIR’s discussion of grading permits was “materially misleading” because it suggested grading permits could mitigate for “every type of environmental impact associated with the winery.” Determining that the FEIR actually acknowledged the exact opposite, the court rejected this argument.

Fourth, the petitioner argued that the board of supervisors’ statement of overriding considerations was invalid because the FEIR was deficient and did not provide a basis for the findings. But the court determined the EIR actually relied on conservative assumptions and disclosed potential environmental impacts in an informative matter. Thus, the board was within its discretion to rely on the EIR when it adopted the statement of overriding considerations.

Fifth, the petitioner argued that the ordinance was inconsistent with the county’s general plan. Specifically, the petitioner argued the ordinance allowed by-right wineries in environmentally constrained areas for which the general plan requires environmental review of development projects. The court found, however, that an EIR is not required to be consistent with a general plan; instead, the EIR must identify and discuss any such inconsistencies. The EIR in this case sufficiently discussed the alleged inconstancy, and the petitioner could not show that the county’s decision to exclude wineries from the environmentally constrained area provisions of the general plan was “unreasonable.”

Reimbursement for transcript costs

Finally, the Court of Appeal concluded that the trial court had erred when it ordered the petitioner to reimburse the county for the cost of preparing certain transcripts for the record since the transcripts were not created until after the approval of the winery ordinance. Section 21167.6, subdivision (e)(4) requires the party preparing the record to include transcripts or minutes “that were presented to the decisionmaking body prior to action on environmental documents or on the project.” The trial court had ordered appellants to pay approximately $6,000 for the costs of creating transcripts of planning commission hearings, but appellants successfully argued that they should not have to pay these costs because it was undisputed that the planning commission transcripts were not before the board when it made its decision to approve the winery ordinance.

In Masonite Corporation v. County of Mendocino (2013) __Cal.4th__ (Case No. A134896), a partially-published opinion filed July 25, 2013, the First District Court of Appeal held that an EIR must evaluate the economic feasibility of using an agricultural conservation easement (ACE) and in-lieu fees as mitigation for the Project’s conversion of farmland to nonagricultural use. This is required even when the Project will only result in the direct loss of farmland associated with the Project and will not put development pressure on surrounding farmland.

Background and Procedural History

In 2008, Granite Construction Company applied to the Mendocino County Planning Commission for a conditional use permit to develop a sand and gravel quarry on 65.3 acres approximately one mile north of Ukiah. The Department of Conservation classified 45 of the site’s 65 acres as “prime farmland.” Although most of the site was cultivated as a vineyard when the application was submitted, the site has been zoned for industrial use since 1982. Granite proposed reclaiming most of the area as open space after the mining operations had ceased, but reclaiming the land for agriculture was impossible.

The EIR identified this permanent loss of prime farmland as a significant and unavoidable project impact. The County Planning Commission certified the EIR and adopted a statement of overriding considerations. Masonite filed a petition for writ of mandate challenging the County’s compliance with CEQA. The Mendocino County Superior Court denied the petition for writ of mandate, and Masonite appealed.

Court of Appeal’s Decision

In the EIR, the County determined that no mitigation was possible to offset the loss of 45 acres of prime farmland. Masonite argued that the impact could have been mitigated by the acquisition of ACEs on offsite properties or by payment of “in-lieu” fees to fund such acquisitions.

The County believed that an ACE was not legally feasible in this case because a conservation easement only addresses the indirect and cumulative effects of farmland conversion and does not replace on-site resources. According to the County, indirect and cumulative impacts of farmland conversion occur when a Project affects neighboring agricultural uses by increasing the speculative land value and farming costs due to land use incompatibilities and nuisance issues. Through the so called “domino effect,” this would lead to development pressure on agricultural lands. The County felt that the domino effect was unlikely here because the nearest active agricultural operation was across the Russian River (a natural barrier); therefore, a conservation easement as mitigation was not appropriate in this case.

The state Department of Conservation (DOC) disagreed, submitting comments on the Draft EIR asserting that the loss of agricultural lands from this project (the 45 acres that would be mined) could have been minimized by the acquisition of ACEs on comparable land of at least equal size. According to the DOC, because the loss of farmland is felt beyond just the surrounding area, comparable replacement land could be found regionally or even statewide.

In developing the standard of review for the County’s finding of infeasibility, the court noted that this was an issue of law that the court should review de novo since the County had determined it would be legally infeasible to use ACEs as a mitigation measure. According to the court, an agency’s conclusion that mitigation was infeasible is only entitled to deference under the substantial evidence standard if infeasibility is based on economic, environmental, social, and technological factors. In this case, “[b]ecause the County decided that ACEs were not a legally feasible means to mitigate the loss of farmland at the Project site, it never investigated whether ACEs were economically feasible, and there is no evidence to review.”

The court looked to multiple sources to determine if ACEs were legally feasible for mitigating direct effects, as opposed to cumulative or indirect effects. It noted that if agricultural lands were preserved through conservation easements at a 1:1 ratio, then at least half the agricultural land in the region would be preserved. Furthermore, the court concluded that this preservation of substitute resources would comport with the CEQA Guidelines’ definition of “mitigation” in section 15370, subdivision (e), which specifically mentions substitute resources. Case law on the use of conservation easements as mitigation for biological resources, the common usage of ACEs as mitigation by local governments, and the Legislature’s policy to preserve agricultural land also influenced the court’s decision. Based on this analysis, the court held that ACEs are legally feasible mitigation measures, and the County must explore the economic feasibility of ACEs in a supplemental EIR.

Additionally, the court required the County to consider the economic feasibility of in-lieu fees as an alternative to a conservation easement. The County had rejected the idea in the EIR as legally infeasible because the County’s lack of a comprehensive farmland mitigation program legally precluded it from accepting in-lieu fees. The court found this fact immaterial because there were third parties that could accept the in-lieu fees for conservation programs.

In Save Panoche Valley et al. v. San Benito County (2013) __Cal.App.4th__ (Case No. H037599), the organizations Save Panoche Valley, Santa Clara Valley Audubon Society, and Sierra Club (collectively Save Panoche Valley) challenged the County of San Benito’s certification of an EIR prepared for a proposed solar power project. The Sixth District Court of Appeal affirmed the trial court’s decision denying the petition and upholding the EIR.

Facts and Procedural Background

In 2009, PV2 Energy LLC (applicant) proposed to build a 420-megawatt photovoltaic Panoche Valley Solar Farm Project (the Project) in San Benito County on 4,885 acres of land primarily used for cattle grazing. The surrounding area is also mostly used for cattle grazing, though some land supports other limited agricultural uses. The proposed project site included land held under Williamson Act contracts. The applicant requested that the County make a finding that the project was compatible with the Williamson Act, but the County denied this request. Subsequently, the applicant requested cancellation of Williamson Act contracts on approximately 6,953 acres of land, of which approximately 4,563 were within the boundaries of the proposed project.

The County prepared a Draft EIR and circulated it for public review and comment in June 2010. The DEIR concluded that the project would result in significant and unavoidable visual impacts. The DEIR also identified potential biological impacts on populations of blunt-nosed leopard lizards, giant kangaroo rats, and San Joaquin kit foxes. The DEIR analyzed several alternatives to the proposed project, including a reduced density alternative and an alternative project site.

During the public comment period on the Draft EIR, the California Department of Fish and Wildlife (formerly Fish and Game), submitted comments recommending measures to avoid unlawful take of special species of concern, including the blunt-nosed lizard. A Final EIR was released in September 2010 which included a revised project alternative. This alternative included a conservation easement on the project site, which reduced the project size and density. Under this proposal, the project would generate approximately 399 megawatts of power. The Final EIR concluded that this revised alternative would meet most of the project objectives and eliminate five of the previously significant and unavoidable impacts on biological and visual resources.

Following release of the Final EIR, the County held a public hearing at which it certified the EIR, adopted CEQA findings, and approved the request to cancel Williamson Act contracts. Save Panoche Valley filed suit, but the trial court denied the petition for writ of mandate, and the petitioners appealed.

The Williamson Act Claims

On appeal, Save Panoche Valley argued the County erred when it cancelled the Williamson Act contracts on land within the proposed project’s boundaries. They argued the record failed to support the County’s findings that “other public concerns substantially outweigh the objectives of the Williamson Act,” and that the cancellations were made in error because land suitable for a large-scale solar facility was available which was not held under contract

Government Code sections 51200 et seq. describe the procedures for cancelling a Williamson Act contract. An city or county can only approve a cancellation if it makes certain findings. The findings must conclude either that cancellation is consistent with the Williamson Act, or that cancellation is in the public interest. In this case, the County Board found that “other public concerns” substantially outweighed the objectives of the Williamson Act.

The appellate court found support in the record for the Board’s finding. California has a well-established interest in promoting the development of renewable energy sources, apparent in legislation such as AB 32, the California Global Warming Solutions Act of 2006, and the Renewables Portfolio Standard. The record indicated that the solar project would help further the state’s progress towards achieving its renewably energy goals. Further, agriculture would continue in limited amounts on land within and adjacent to the project site encumbered by conservation easements requiring cattle grazing. The court determined this substantial evidence supported the Board’s findings, despite evidence in the record that Save Panoche Valley pointed to that supported the denial of the Williamson Act cancellations. It was the duty of the Board to weigh the pros and cons of cancelling the contracts, and not the court’s.

The appellate court also rejected Save Panoche Valley’s argument that proximate, non-contracted alternative land was available for a solar project. Under the Williamson Act, “proximate” has been construed as meaning “close enough to the restricted parcel to serve as a practical alternative for the proposed use.” The record demonstrated that the suggested alternative land was located approximately 60 miles away, in two different counties, and also included land encumbered by Williamson Act contracts. Further, portions of the land were held by water districts that the applicants had previously approached regarding a solar project but with whom the applicant had been unable to reach a deal. The court found that these and other factors provided substantial evidence supporting the Board’s determination that no proximate, non-contracted land was available for use as an alternative project site.

The CEQA Claims

In addition to their Williamson Act claims, Save Panoche Valley also challenged both the adequacy of the EIR under CEQA and the evidence supporting the Board’s various CEQA findings.

First, Save Panoche Valley argued the Board violated CEQA because it approved a project for which a feasible alternative was available. To support this argument, appellants pointed to the same alternative site they believed made the Williamson Act cancellations improper. But the Board cited several reasons for determining that the suggested alternative site was infeasible for the proposed solar project, including timing, financing, regulatory, and jurisdictional issues. These various factors provided substantial evidence in support of the Board’s rejection of the alternative site.

Second, appellants challenged the project EIR’s analysis and mitigation of biological impacts. They argued that the EIR failed to include adequate biological surveys regarding the blunt-nosed leopard lizard. But the court determined additional surveys were not necessary merely because they might be helpful. The Final EIR responded to comments from the California DFW and established a protocol for surveys to occur prior to construction. This was sufficient.

Third, Save Panoche Valley raised various challenges to mitigation measures adopted in the EIR to address biological impacts. Appellants argued that the EIR improperly deferred mitigation of impacts to the blunt-nosed leopard lizard. But the court determined the mitigation measures were not impermissibly loose or open-ended. For example, upon completion of the lizard survey, a minimum buffer of 22 acres would be set aside for each lizard. The measures did not simply call for adopting recommendations of the consultants conducting surveys. Instead, the measures provided for specific actions to be taken upon the discovery of a certain species. This particularity was sufficient to avoid improper deferral of mitigation.

The court also determined that substantial evidence supported the Board’s findings that mitigation measures would significantly reduce other biological impacts, such as potential impacts to San Joaquin kit foxes and the giant kangaroo rat. Further, substantial evidence supported the Board’s conclusion that certain mitigation lands were suitable for conservation. Finally, substantial evidence supported the Board’s selection of various ratios for mitigating certain habitat and land, such as mitigation of giant kangaroo rat habitat at a 3-to-1 ratio.

Lastly, the appellants challenged the EIR’s agricultural impact analysis. The project would convert some prime agricultural land, but mitigation measures were adopted which included the protection of land in and around the project site and the creation of agricultural conservation easements. Save Panoche Valley argued these mitigation measures failed to “minimize, rectify, reduce, and eliminate [agricultural] impacts,” because the measures did not ensure the creation of additional agricultural lands. But the court determined this was not the proper standard for “mitigation” as defined by CEQA Guidelines section 15370. Mitigation can be achieved by: (1) avoiding the impact altogether; (2) minimizing impacts by limiting the scope of the project; (3) rectifying the impact by rehabilitating or restoring the impacted environment; (4) reducing or eliminating the impact over time through preservation and maintenance operations during the life of the project; and (5) compensating for the impact by replacing or providing substitute resources or lands.

Ultimately, the court determined that the record supported conclusions reached in the EIR and the CEQA findings made by the Board, including findings made in its statement of overriding considerations.  Thus, the court of appeal affirmed the trial court’s judgment upholding certification of the EIR and project approval.

On November 27, 2012, the Sixth District Court of Appeal in Habitat and Watershed Caretakers v. City of Santa Cruz (2012) __Cal.App.4th __ (Case No. H037545) reversed a trial court’s judgment and directed the City of Santa Cruz to vacate certification of a final EIR for a project to amend the city’s sphere of influence. 

In 2006, the Regents of the University of California (the Regents) adopted a 2005 Long Range Development Plan (LRDP) for the University of California, Santa Cruz (UCSC). The LRDP contemplated the development of the north campus, which was not within the City of Santa Cruz’s (City) territorial boundaries or sphere of influence. The City and other parties brought a CEQA action against the Regents challenging their certification of an EIR for the LRDP, but the parties to the litigation entered into a comprehensive settlement agreement in August 2008.

In October 2008, the City applied to the Local Area Formation Commission (LAFCO) for a sphere of influence (SOI) amendment to include within the SOI the undeveloped north campus portion of UCSC. At the same time, the Regents applied for provision of extraterritorial water and sewer services. The City prepared an EIR for the project of amending its SOI while the applications were pending before LAFCO.

In August 2010, the City certified the final EIR and Habitat filed a petition challenging the certification. The trial court denied the petition, and Habitat appealed.

Assessment of Impacts

i.     Water Supply

The appellate court first turned to the issue of water supply and noted that the draft EIR extensively described the City’s water supply situation. The City had previously considered various strategies for addressing water supply, including conservation, curtailment of use during shortage, and construction of a desalination facility. Ultimately, the draft EIR determined that the City had sufficient supply to serve the project in normal years but would have a water supply shortfall during dry years regardless of growth rate and even without the project’s increased water demand.

Habitat claimed the draft EIR failed to demonstrate that the water required for the development of north campus was available and failed to discuss the environmental consequences of proceeding with the project without adequate water supplies. Citing Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, the court established that an EIR is not required to establish a likely source of water and instead may address reasonably foreseeable impacts of supplying water to the project, acknowledge the degree of uncertainty involved, discuss reasonably foreseeable alternatives, and disclose significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact. The draft EIR disclosed and discussed these issues, therefore the court found the EIR’s discussion of water supply was adequate.

ii.   Watershed Resources

Habitat asserted that the draft EIR failed to discuss the impact of development of the north campus on erosion in the Cave Gulch watershed. In particular, Habitat argued the final EIR’s reference to a storm water management plan was improper because the plan itself was not included in the final EIR. The appellate court disagreed, noting the draft EIR discussed, described, referenced, and incorporated analysis and mitigation measures discussed in the LRDP EIR. In addition, the final EIR described and referenced relevant portions of the storm water management plan. The court found this approach was proper and did not deprive decision makers of necessary information.

Habitat also argued the draft EIR was inadequate because the City failed to delineate wetlands. The draft EIR explained that the LRDP EIR’s mitigation measures required predevelopment delineation of wetlands. The draft EIR concluded that delineation was not initially required because wetland resources are dynamic and their precise boundaries are likely to change over the 15-year term of the 2005 LRDP. Since the EIR recognized the existence of wetlands and contained protective mitigation measures, the court found wetland delineation was appropriately deferred to project-level environmental review for future individual projects in the north campus.

iii.  Biological Resources

Habitat also argued the EIR was inadequate because the City did not perform necessary studies and analysis to show that future changes in the City’s water supply would not significantly harm biological resources. The appellate court determined this argument failed because the City did not propose to increase its water supply by drawing more water from its existing sources in order to meet water demand from North Campus. Instead, the City proposed to meet the campus needs through conservation, curtailment and possible construction of a desalination facility. The court found the EIR did not need to analyze impacts from the City’s current water usage from existing sources because they are not impacts of the project and would occur even without the project.

Description of the Project and its Objectives

Habitat argued that the draft EIR’s description of the project’s primary objective were incorrect because the draft EIR stated the comprehensive settlement agreement required the City to provide water and sewer services to the north campus when the agreement actually required the City only to initiate a LAFCO application for an amended SOI.

The appellate court first noted the comprehensive settlement agreement did not leave the City with any discretion because it obligated the City to provide water service if LAFCO approved the City’s SOI application and the Regents’ application. Thus, the court found the purpose of the final EIR was to provide LAFCO with information about the environmental consequences of their decision.

Finally, the court agreed with Habitat, finding the statements of the project’s objectives in the EIR failed to describe the purpose of the project and only described the nature of the project. Given the misstated project objectives, the court next considered whether these misstatements skewed the consideration of alternatives and mitigations.

Range of Alternatives

Habitat argued the EIR’s discussion of alternatives was inadequate because it failed to consider any alternatives that would avoid some of the significant environmental impacts of the project. Habitat argued analysis of a reduced-development alternative or a limited-water alternative was required. The court agreed, holding that consideration of the proposed alternatives could not be eliminated solely because they would “impede to some extent the attainment of the project’s true objectives.” Because the EIR failed to discuss any feasible alternative, the court determined it did not comply with CEQA.

Mitigations

Finally, Habitat argued that the EIR failed to provide specific, certain, and enforceable mitigation measures for the Project’s significant and unavoidable impacts on water supply. The appellate court disagreed. The draft EIR incorporated numerous mitigation measures from the LRDP EIR. In addition, the comprehensive settlement agreement required the Regents to implement a group of high priority conservation measures which the appellate court determined were specific and certain. The court found it sufficient that these mitigation measures addressed the impacts of the project on the City’s water supply; it rejected Habitat’s argument that the mitigation measures were required to address the City’s overall water supply shortfall. [RMM Counsel of Record: James G. Moose, Sabrina V. Teller, Jeannie Lee]

City of Hayward v. Board of Trustees of the California State University (1st Dist. June 28, 2012) __Cal.App.4th__ (Case Nos. A13412, A132424, A131413, A132423) 

October 17, 2012, Petition for Review granted; California Supreme Court Case No. S203939

On May 30, 2012, the First Appellate District affirmed a lower court’s grant of a petition for writ of mandate challenging the expansion of the California State University (CSU) East Bay campus and the certification of an EIR for the project under CEQA. The trial court had agreed with plaintiffs City of Hayward and two local community groups, Hayward Area Planning Association and Old Highlands Homeowners Association, that the EIR prepared by the Board of Trustees of the California State University (the Trustees) failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The First District, however, disagreed with the trial court and found the EIR to be adequate in all respects except it determined the EIR’s analysis of potential environmental impacts to parkland was not supported by substantial evidence. The court, therefore, directed that the scope of the writ of mandate be modified.

The case involves a challenge to the Trustees’ 2009 approval of a master plan to guide the development of the California State University East Bay (the University) for the next 20 to 30 years in order to expand the campus’s physical capacity to meet its assigned enrollment ceiling.  In March 2009, a final EIR was issued which concluded that the buildout under the master plan will result in significant impacts in four categories despite the implementation of all feasible mitigation measures: (1) aesthetics, (2) air quality, (3) cultural resources, and (4) traffic. All other impacts, including impacts on public services, were found to be insignificant or fully mitigated.

In October 2009, the city and local community groups filed separate petitions for writ of mandate challenging the certification of the EIR and approval of the master plan. The cases were coordinated for briefing and hearing. On October 28, 2010, the court issued an order granting petition for writ of mandate. On December 21, 2010, separate judgments were entered in the two cases. The trial court held that the EIR failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The Trustees appealed and the cases were consolidated on appeal for briefing and decision.

Fire and Emergency Medical Services

On appeal, the court disagreed with the trial court’s finding that the EIR’s analysis of the master plan’s impacts to fire and emergency medical services was inadequate. The EIR had found that the master plan would result in the need for 11 additional firefighters and additional fire station facilities to house the staff required to serve the increased population associated with the master plan. The EIR concluded, however, that expansion or construction of a fire station would not result in significant environmental impacts due to the limited area that is typically required to build a fire station (between 0.5 and 1 acre) and its urban location. The appellate court found that the record supported this conclusion in the EIR. The court concluded that the determination that the potential impacts of the fire station would be less than significant was based on the information available (i.e., the known size requirements and the general area within which the additional facilities would necessarily be placed) which constituted substantial evidence. The court noted that, given the unknown size and precise location of the future facilities and the absence of control by the Trustees of over the future decision-making process (because emergency services are provided by the City’s Hayward Fire Department), no more detailed analysis of the potential impacts of the potential fire station was possible or required.

The court also found that no mitigation was necessary to address the need for additional fire protection services due to the potential increase in response time caused by the increase in population under the master plan. The court noted that, under the California Constitution, the obligation to provide adequate fire and emergency medical services fell to the city. Furthermore, the court, citing CEQA Guidelines § 15382 and Goleta Union School District v. Regents of University of California (1995) 37 Cal.App.4th 1025, held that the need for additional fire protection service is not an environmental impact that CEQA requires a project to mitigate.

The court rejected the respondents’ argument that under City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, the Trustees were required to pay for an additional fire station and the salaries of additional fire fighters. In City of Marina, mitigation to fund improvements to fire protection services was required because the EIR concluded the project would result in significant environmental impacts. In contrast, the court noted, the master plan EIR determined, based on substantial evidence, that implementation of the master plan would not result in a significant impact.  

The court also rejected the respondents’ reliance on Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, to argue that delayed response times must be evaluated as a “health and safety problem” under section 15126.2 of the Guidelines. In Bakersfield Citizens, the court found that the EIR for a shopping center was inadequate because it failed to correlate identified significant and unavoidable air quality impacts to resultant adverse health effects, and, therefore, the public was not apprised of the health consequences that result when more pollutants are added to a nonattainment basin. The court noted that in the University EIR, a concerned citizen reading the EIR would understand the impacts of the proposed increase in population on emergency services in the area. The EIR analyzed the response times and their impact on public safety, concluded that the project will cause response times to fall to an inadequate service level, found that additional fire fighters will be required to maintain adequate service levels, set forth the measures needed to provide adequate emergency services, and concluded that those measures will not have a significant impact on the environment.

Furthermore, the court found that the potential dangers associated with delayed response times do not mandate a finding of significance under CEQA Guidelines § 15065(a)(4). Based on the analysis in the EIR, and because the city has a constitutional obligation to provide adequate fire protection services, there was no basis to conclude that the increased population would cause a “substantial adverse effect on human beings.”

Finally, the court found no deficiency in the EIR’s analysis of cumulative impacts on public services. The EIR based its analysis of cumulative impacts on the evaluation of cumulative impacts made in connection with the adoption of the city’s general plan, which found no cumulative impact from city growth on fire services. Accordingly, the EIR reasonably concluded that any cumulative impact of the growth will be less than significant.

Traffic Impacts

The plaintiffs also objected to the analysis of one potential location for future construction of affordable faculty housing, arguing that the EIR should have evaluated potential impacts to additional roads in the immediate neighborhood. The court found, however, that the analysis of traffic and parking impacts of potential sites for faculty housing was sufficient because no site had yet been selected. As a program EIR, therefore, the master plan EIR appropriately evaluated the potential cumulative impacts of locating faculty housing near Grandview Avenue on the primary intersections in that area. Any site-specific impacts to the smaller residential streets in the neighborhood and related mitigation measures, however, were properly deferred until the affordable faculty housing project is planned and a project EIR is prepared.

Furthermore, the court found the reliance on a Transportation Demand Management (TDM) program to mitigate significant impacts caused by increased parking and traffic did not constitute impermissible deferred mitigation. The court noted that the TDM sets forth specific alternative policies that may be utilized to mitigate traffic growth, incorporates quantitative criteria, and sets specific deadlines for completion of the parking and traffic study timelines for reporting to the city on the implementation and effectiveness of the measures that will be studied. The plan also included a monitoring program which ensures that the public will have access to the information necessary to evaluate compliance with the Trustees’ obligations.

Parklands Impacts

In assessing the potential impact on area parklands, the EIR concluded that the impact on the East Bay Regional Park District would be insignificant because the master plan included ample on-campus recreation offerings and, therefore, use of off-campus recreational resource by the additional student population would be nominal because the on-campus facilities would adequately support the campus population. The court agreed with the trial court that this analysis was inadequate.

First, because the EIR focused on the entire regional park district, it failed to perform a project-level analysis of impacts to specific parks. In particular, it failed consider the specific impacts on two neighboring parks, Garin Regional Park and Dry Creek Pioneer Regional Park. The Trustees argued that the EIR’s analysis was sufficient because it was reasonable to conclude that the new student population would make the same “nominal” use of these parks “consistent with long-standing use patterns” and that the master plan included ample on-campus recreation offerings. The court disagreed, noting that the EIR failed to provide factual evidence to support this assumption. There were currently 12,586 full-time-equivalent students enrolled at the university. The EIR disclosed no attempt to determine the extent to which these students made use of the adjacent parklands or to extrapolate from such data estimated increased usage by the additional approximately 5,500 anticipated full-time equivalent students. Nor was any such calculation made for the existing approximately 1,200 residential students and the 600 students anticipated to live in the new student housing project. Moreover, the record contained no evidence regarding overall usage or capacity of the neighboring parks. As the trial court noted, evaluating the potential impact on the entire East Bay Regional Park District cast too broad a net and did nothing to expose potential impacts on the neighboring parks.

Furthermore, the fact that there were ample on-campus recreation opportunities did not support the finding that additional use of the nearby regional parks would be “nominal.” The types of recreational opportunities offered on campus and in the neighboring parks were significantly different. The athletic fields, recreation center, swimming pool and grassy fields found on campus were not comparable to the recreational opportunities available in the 4,763 acres of neighboring parkland. Without any data concerning the extent to which the current-size student body (or anybody else) utilized the adjacent parks, the court concluded it was not reasonable to assume that the “informal trails” available on a 130-acre open space reserve on campus would keep significant numbers of new students from making use of the neighboring parklands.

The court accordingly reversed the trial court’s judgment except to the extent it required the Trustees, before considering certification of a revised EIR, to revise their analysis of the impacts of the master plan and related site-specific projects to area parklands.